Sentencing Guidelines for United States Courts, 28254-28282 [2023-09332]

Agencies

• United States Sentencing Commission

[Federal Register Volume 88, Number 85 (Wednesday, May 3, 2023)]
[Notices]
[Pages 28254-28282]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09332]



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Vol. 88

Wednesday,

No. 85

May 3, 2023

Part IV





United States Sentencing Commission





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Sentencing Guidelines for United States Courts; Notice

Federal Register / Vol. 88, No. 85 / Wednesday, May 3, 2023 / 
Notices

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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of submission to Congress of amendments to the 
sentencing guidelines effective November 1, 2023, and request for 
comment.

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SUMMARY: The United States Sentencing Commission hereby gives notice 
that the Commission has promulgated amendments to the sentencing 
guidelines, policy statements, commentary, and statutory index; and the 
Commission requests comment regarding whether Parts A and B of 
Amendment 8, relating to ``status points'' and certain offenders with 
zero criminal history points, should be included in the Guidelines 
Manual as an amendment that may be applied retroactively to previously 
sentenced defendants. This notice sets forth the text of the amendments 
and the reason for each amendment, and the request for comment 
regarding Parts A and B of Amendment 8.

DATES: Effective Date of Amendments. The Commission has specified an 
effective date of November 1, 2023, for the amendments set forth in 
this notice.
    Written Public Comment. Written public comment regarding 
retroactive application of Parts A and B of Amendment 8, should be 
received by the Commission not later than June 23, 2023. Any public 
comment received after the close of the comment period may not be 
considered.

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 20002-8002, Attention: 
Public Affairs--Issue for Comment on Retroactivity.

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). Absent action of the Congress to the 
contrary, submitted amendments become effective by operation of law on 
the date specified by the Commission (generally November 1 of the year 
in which the amendments are submitted to Congress).

(1) Amendments to the Sentencing Guidelines, Policy Statements, 
Official Commentary, and Statutory Index

    Pursuant to its authority under 28 U.S.C. 994(p), the Commission 
has promulgated amendments to the sentencing guidelines, policy 
statements, commentary, and statutory index. Notice of the proposed 
amendment was published in the Federal Register on February 2, 2023 
(see 88 FR 7180). The Commission held public hearings on the proposed 
amendments in Washington, DC, on February 23-24 and March 7-8, 2023. On 
April 27, 2023, the Commission submitted the promulgated amendments to 
the Congress and specified an effective date of November 1, 2023.
    The text of the amendments to the sentencing guidelines, policy 
statements, commentary, and statutory index, and the reason for each 
amendment, is set forth below. Additional information pertaining to the 
amendments described in this notice may be accessed through the 
Commission's website at www.ussc.gov.

(2) Request for Comment on Parts A and B of Amendment 8, Relating to 
``Status Points'' and Certain ``Zero-Point'' Offenders

    This notice sets forth a request for comment regarding whether 
Parts A and B of Amendment 8, relating to the impact of ``status 
points'' at Sec.  4A1.1 ((Criminal History Category) and offenders with 
zero criminal history points at new Sec.  4C1.1 (Adjustment for Certain 
Zero-Point Offenders), 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 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.
    Authority: 28 U.S.C. 994(a), (o), (p), and (u); USSC Rules of 
Practice and Procedure 2.2, 4.1, and 4.1A.

Carlton W. Reeves,
Chair.

(1) Amendments to the Sentencing Guidelines, Policy Statements, 
Official Commentary, and Statutory Index

    1. 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 by 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 that is not being 
provided and without which the defendant is at risk of serious 
deterioration in health or death.
    (D) The defendant presents the following circumstances--
    (i) the defendant is housed at a correctional facility affected or 
at

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imminent 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) due to personal health risk factors and custodial status, 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 adequately mitigated in a timely 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 establishes that circumstances similar to those 
listed in paragraphs (3)(A) through (3)(C) exist 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, 
when the defendant would be the only available caregiver for such 
family member or individual. For purposes of this provision, `immediate 
family member' refers to any of the individuals listed in paragraphs 
(3)(A) through (3)(C) as well as a grandchild, grandparent, or sibling 
of the defendant.
    (4) Victim of Abuse.--The defendant, while in custody serving the 
term of imprisonment sought to be reduced, was a victim of:
    (A) sexual abuse involving a `sexual act,' as defined in 18 U.S.C. 
2246(2) (including the conduct described in 18 U.S.C. 2246(2)(D) 
regardless of the age of the victim); or
    (B) physical abuse resulting in `serious bodily injury,' as defined 
in the Commentary to Sec.  1B1.1 (Application Instructions);
    that was committed by, or at the direction of, a correctional 
officer, an employee or contractor of the Bureau of Prisons, or any 
other individual who had custody or control over the defendant.
    For purposes of this provision, the misconduct must be established 
by a conviction in a criminal case, a finding or admission of liability 
in a civil case, or a finding in an administrative proceeding, unless 
such proceedings are unduly delayed or the defendant is in imminent 
danger.
    (5) Other Reasons.--The defendant presents any other circumstance 
or combination of circumstances that, when considered by themselves or 
together with any of the reasons described in paragraphs (1) through 
(4), are similar in gravity to those described in paragraphs (1) 
through (4).
    (6) Unusually Long Sentence.--If a defendant received an unusually 
long sentence and has served at least 10 years of the term of 
imprisonment, a change in the law (other than an amendment to the 
Guidelines Manual that has not been made retroactive) may be considered 
in determining whether the defendant presents an extraordinary and 
compelling reason, but only where such change would produce a gross 
disparity between the sentence being served and the sentence likely to 
be imposed at the time the motion is filed, and after full 
consideration of the defendant's individualized circumstances.
    (c) Limitation on Changes in Law.--Except as provided in subsection 
(b)(6), a change in the law (including an amendment to the Guidelines 
Manual that has not been made retroactive) shall not be considered for 
purposes of determining whether an extraordinary and compelling reason 
exists under this policy statement. However, if a defendant otherwise 
establishes that extraordinary and compelling reasons warrant a 
sentence reduction under this policy statement, a change in the law 
(including an amendment to the Guidelines Manual that has not been made 
retroactive) may be considered for purposes of determining the extent 
of any such reduction.
    (d) 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. However, 
rehabilitation of the defendant while serving the sentence may be 
considered in combination with other circumstances in determining 
whether and to what extent a reduction in the defendant's term of 
imprisonment is warranted.
    (e) 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.''.
    The Commentary to Sec.  1B1.13 captioned ``Application Notes'' is 
amended--
    by striking Notes 1 through 5 as follows:
    ``1. Extraordinary and Compelling Reasons.--Provided the defendant 
meets the requirements of subdivision (2), extraordinary and compelling 
reasons exist under any of the circumstances set forth below:
    (A) Medical Condition of the Defendant.--
    (i) The defendant is suffering from a terminal illness (i.e., a 
serious and advanced illness with an end of life trajectory). A 
specific prognosis of life expectancy (i.e., a probability of death 
within a specific time period) is not required. Examples include 
metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), 
end-stage organ disease, and advanced dementia.
    (ii) The defendant is--
    (I) suffering from a serious physical or medical condition,
    (II) suffering from a serious functional or cognitive impairment, 
or
    (III) experiencing deteriorating physical or mental health because 
of the aging process,
    that substantially diminishes the ability of the defendant to 
provide self-care within the environment of a correctional facility and 
from which he or she is not expected to recover.
    (B) Age of the Defendant.--The defendant (i) is at least 65 years 
old; (ii) is experiencing a serious deterioration in physical or mental 
health because of the aging process; and (iii) has served at least 10 
years or 75 percent of his or her term of imprisonment, whichever is 
less.
    (C) Family Circumstances.--
    (i) The death or incapacitation of the caregiver of the defendant's 
minor child or minor children.
    (ii) The incapacitation of the defendant's spouse or registered 
partner when the defendant would be the only available caregiver for 
the spouse or registered partner.
    (D) Other Reasons.--As determined by the Director of the Bureau of 
Prisons, there exists in the defendant's case an

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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.'';
    and by inserting the following new Notes 1 and 2:
    ``1. Interaction with Temporary Release from Custody Under 18 
U.S.C. 3622 (`Furlough').--A reduction of a defendant's term of 
imprisonment under this policy statement is not appropriate when 
releasing the defendant under 18 U.S.C. 3622 for a limited time 
adequately addresses the defendant's circumstances.
    2. Notification of Victims.--Before granting a motion pursuant to 
18 U.S.C. 3582(c)(1)(A), the Commission encourages the court to make 
its best effort to ensure that any victim of the offense is reasonably, 
accurately, and timely notified, and provided, to the extent 
practicable, with an opportunity to be reasonably heard, unless any 
such victim previously requested not to be notified.''.
    The Commentary to Sec.  1B1.13 captioned ``Background'' is amended 
by striking ``the Commission is authorized'' and inserting ``the 
Commission is required''.
    Reason for Amendment: This amendment responds to, among other 
things, the First Step Act of 2018 (``First Step Act''), Public Law 
115-391, 603(b), 132 Stat. 5194, 5239, which amended 18 U.S.C. 
3582(c)(1)(A) to authorize courts to grant a motion for a sentence 
reduction upon a defendant's own motion. Previously, a court was 
authorized to do so only upon the motion of the Director of the Bureau 
of Prisons (``BOP''). Congress amended the law for the express purpose, 
set forth on the face of the enactment, of ``increasing the use'' of 
sentence reduction motions under section 3582(c)(1)(A). First Step Act 
Sec.  603(b).
    Section 3582(c)(1)(A) authorizes a court to reduce a defendant's 
term of imprisonment if ``extraordinary and compelling reasons'' 
warrant a reduction and ``such a reduction is consistent with 
applicable policy statements issued by the Sentencing Commission.'' 
Congress directed 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.'' 
Sentencing Reform Act of 1984 (``SRA''), Public Law 98-473, 98 Stat. 
1987, 2023 (codified at 28 U.S.C. 994(t)). Congress also directed the 
Commission to promulgate general policy statements regarding the 
appropriate use of section 3582(c). 28 U.S.C. 994(a)(2)(C).
    For more than 30 years, reductions pursuant to section 
3582(c)(1)(A) could be granted only upon the motion of the BOP. BOP 
filed such motions extremely rarely--the number of defendants receiving 
relief averaged two dozen per year--and for the most part limited its 
motions to cases involving inmates who were expected to die within a 
year or were profoundly and irremediably incapacitated. U.S. Dep't of 
Just., Off. of the Inspector Gen., The Federal Bureau of Prisons' 
Compassionate Release Program, I-2013-006 1 & n.9 (2013).
    Sentence reductions under section 3582(c)(1)(A) thus came to be 
known as ``compassionate release,'' though that phrase appears nowhere 
in the SRA and sentence reductions that do not result in immediate 
release are authorized by the law. BOP's sparing use of its authority 
persisted despite guidance from the Commission in 2007 that 
``extraordinary and compelling reasons'' can be based on (a) the 
medical condition of the defendant, (b) the age of the defendant, (c) 
the defendant's family circumstances, and (d) reasons other than, or in 
combination with, those three specified ones. USSG App. C, amend. 698 
(effective Nov. 1, 2007).
    In 2018, the First Step Act put an end to BOP's gatekeeping 
function and allowed individuals to file motions for sentence 
reductions under the statute. Because the Commission lost its quorum in 
early 2019 and did not regain it until 2022, it was unable to amend 
Sec.  1B1.13 during the more than four-year period since defendants 
were first permitted to file such motions. During those years, courts 
have found extraordinary and compelling reasons warranting sentence 
reductions based on all of the factors the Commission identified in 
2007, i.e., the three specified bases of medical condition, age, and 
family circumstances, and the ``other reasons'' catchall. Commission 
data indicate courts have hewed to the ``extraordinary and compelling'' 
requirement, see U.S. Sent'g Comm'n, Compassionate Release Data Report 
(Dec. 2022), at tbls. 10, 12, & 14, and while they have found such 
circumstances to be present in more cases than BOP had before the First 
Step Act, they have been judicious in granting relief.
    Among other things, the amendment extends the applicability of the 
policy statement to defendant-filed motions; expands the list of 
specified extraordinary and compelling reasons that can warrant 
sentence reductions; retains the existing ``other reasons'' catchall; 
provides specific guidance with regard to the permissible consideration 
of changes in the law; and responds to case law that developed after 
the enactment of the First Step Act.
    The amendment is informed by Commission data, including its 
analysis of the factors identified by courts in granting sentence 
reduction motions in the years since the First Step Act was signed into 
law. It is also informed by extensive public comment, including from 
the Department of Justice, the Federal Public and Community Defenders, 
the Commission's advisory groups, law professors, currently and 
formerly incarcerated individuals, and other stakeholders in the 
federal criminal justice system.

Applicability to Defendant-Filed Motions and Structural Revisions

    The amendment revises Sec.  1B1.13(a) to reflect that a defendant 
is now

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authorized to file a motion under 18 U.S.C. 3582(c)(1)(A), making the 
policy statement applicable to both defendant-filed and BOP-filed 
motions.
    The amendment also makes two structural changes to Sec.  1B1.13. 
First, it moves the description of the permissible bases for a 
reduction from the Commentary to the policy statement itself.
    Second, the amendment moves Application Notes 2 and 3 into the body 
of the policy statement as new subsections (e) and (d). Application 
Note 3 previously provided 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. New subsection (d) 
adopts this same language but adds, consistent with the plain language 
of section 994(t) and courts' interpretations of it, that 
rehabilitation of the defendant while incarcerated may be considered in 
combination with other circumstances in determining whether 
extraordinary and compelling reasons warrant a sentence reduction. See 
U.S. Sent'g Comm'n, Compassionate Release Data Report (Dec. 2022), 
tbls. 10, 12 & 14 (showing that courts have frequently considered 
rehabilitation in connection with other factors when granting sentence 
reduction motions). Application Note 2 provided that ``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.'' New subsection (e) retains this instruction without 
change.

Revisions to ``Extraordinary and Compelling Reasons''

    The amendment expands the list of specified extraordinary and 
compelling reasons and retains the ``other reasons'' basis for a 
sentence reduction to better account for and reflect the plain language 
of section 3582(c)(1)(A), its legislative history, and decisions by 
courts made in the absence of a binding policy statement.
    The list of specified ``extraordinary and compelling reasons'' is 
expanded by: (a) adding two new subcategories to the ``Medical 
Circumstances of the Defendant'' ground for relief; (b) making three 
modifications to the ``Family Circumstances'' ground; (c) adding a new 
ground called ``Victim of Abuse''; and (d) adding a new ground called 
``Unusually Long Sentence,'' which permits a judge to consider a non-
retroactive change in sentencing law as an extraordinary and compelling 
reason in specified circumstances.
    The first of the two new subcategories under ``Medical 
Circumstances of the Defendant'' applies when a defendant is 
``suffering from a medical condition that requires long-term or 
specialized medical care that is not being provided'' and who, without 
that care, ``is at risk of serious deterioration in health or death.'' 
The second applies when a defendant, due to personal health risk 
factors and custodial status, is at increased risk of suffering severe 
medical complications or death as a result of exposure to an ongoing 
outbreak of infectious disease or public health emergency. The 
amendment incorporates several factors courts considered during the 
COVID-19 pandemic related to the defendant's individual health 
circumstances, the level of risk at the defendant's facility, and the 
ability to adequately mitigate the defendant's individualized risk. The 
public health emergency prong requires that the emergency be declared 
by the appropriate governmental authority. These new subcategories 
reflect the medical circumstances not expressly identified in Sec.  
1B1.13 that were most often cited by courts in granting sentence 
reduction motions during the pandemic. See U.S. Sent'g Comm'n, 
Compassionate Release Data Report (Dec. 2022) tbls. 10, 12 & 14.
    The second modification to the list of specified extraordinary and 
compelling reasons revises the ``Family Circumstances'' ground in three 
ways. First, it expands the existing provision relating to the death or 
incapacitation of the caregiver of a defendant's minor child to include 
a 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. This 
expansion reflects the Commission's determination that providing care 
for a non-minor child with severe caretaking needs presents a 
circumstance similar to providing care for a minor child, as some 
courts have recognized. See, e.g., United States v. Barnes, No. 3:17-
cr-00011, 2021 WL 1269783, at *4 (S.D. Ind. Jan. 29, 2021) (granting a 
sentence reduction to a defendant whose 21-year-old son had numerous 
physical and mental disabilities that required 24-hour care, finding 
these circumstances ``to be analogous to a minor child''). Second, the 
amendment adds a new provision for cases in which a defendant's parent 
is incapacitated and the defendant would be the only available 
caregiver. Other than the relationships specified in the current policy 
statement, a parent has been the family member most often identified as 
needing care by courts granting sentence reductions under Sec.  
3582(c)(1)(A). See U.S. Sent'g Comm'n, Compassionate Release: The 
Impact of the First Step Act and COVID-19 Pandemic (2022), at 32; see 
also United States v. Bucci, 409 F. Supp. 3d 1, 2 (D. Mass. 2019) 
(concluding that there is ``no reason to discount'' a defendant's 
caregiving role ``simply because the incapacitated family member is a 
parent and not a spouse,'' registered partner, or minor child). The 
third modification to the family circumstances ground for relief adds a 
provision that applies when the defendant establishes that similar 
circumstances exist with respect to a person whose relationship with 
the defendant is similar in kind to that of an immediate family member, 
and the defendant would be the only available caregiver. This provision 
recognizes the diversity of family structures in America, and that 
caretaking needs within all of those family structures may give rise to 
equally extraordinary and compelling circumstances. The amendment 
accords with decisions by courts after the First Step Act. See, e.g., 
United States v. Griffin, No. 1:95-cr-00751, 2020 WL 7295765, at *2-3 
(S.D. Fla. Dec. 8, 2020) (granting release because the defendant was 
``the only viable, adequate caregiver for his sister'' who had 
significant cognitive impairment due to vascular dementia and stroke); 
United States v. Reyes, No. 04-cr-970, 2020 WL 1663129, at *3 (N.D. 
Ill. Apr. 3, 2020) (granting defendant relief to assist in caring for 
his aunt with stage four cancer, recognizing ``non-traditional family 
arrangements and the need for others in the family to contribute when a 
relative is sick''). Relief is available under this subsection only if 
the defendant establishes both the qualifying relationship and that the 
defendant is the only available caregiver.
    The third modification to the list of specified extraordinary and 
compelling reasons adds a ground for relief at new subsection (b)(4) 
(``Victim of Abuse''), which applies if a defendant has suffered sexual 
or physical abuse that was committed by or at the direction of a 
correctional officer, an employee or contractor of the BOP, or any 
other individual having custody or control over the defendant. This 
provision responds to the Department of Justice's (``DOJ'') suggestion 
that a sentence reduction may be appropriate where an individual in BOP 
custody has been determined to have been the victim of sexual assault 
perpetrated by BOP personnel. Principal Assoc. Deputy Att'y Gen. 
Working Grp. of DOJ Components, Dep't of Just., Report and

[[Page 28258]]

Recommendations Concerning the Department of Justice's Response to 
Sexual Misconduct by Employees of the Bureau of Prisons 22 (2022); see 
also Staff of Permanent S. Subcomm. on Investigations, 117th Cong., 
Rep. on Sexual Abuse of Female Inmates in Federal Prisons (Comm. Print 
2022) (summarizing results of investigation into sexual abuse of 
federal prisoners in BOP custody). New subsection (b)(4) is limited to 
instances in which the defendant was a victim of either (a) sexual 
abuse involving a ``sexual act,'' as defined in 18 U.S.C. 2246(2) 
(including the conduct described in 18 U.S.C. 2246(2)(D) regardless of 
the age of the victim); or (b) physical abuse resulting in ``serious 
bodily injury,'' as defined at Sec.  1B1.1, while in custody serving 
the term of imprisonment sought to be reduced. New subsection (b)(4) 
provides that the misconduct must be established by a conviction in a 
criminal case, a finding or admission of liability in a civil case, or 
a finding in an administrative proceeding, unless the defendant 
establishes that such proceedings are unduly delayed or the defendant 
is in imminent danger.
    Apart from the specified extraordinary and compelling reasons, the 
amendment retains the ``Other Reasons'' catchall ground currently found 
in Application Note 1(D). It also makes clear that extraordinary and 
compelling reasons exist if the defendant presents any other 
circumstance or combination of circumstances that, considered by 
themselves or together with any of the reasons specified in paragraphs 
(1) through (4), are similar in gravity to those described in 
paragraphs (1) through (4). The Commission considered but specifically 
rejected a requirement that ``other reasons'' be similar in nature and 
consequence to the specified reasons. Rather, they need be similar only 
in gravity, a requirement that inheres in the statutory requirement 
that they present extraordinary and compelling reasons for a sentence 
reduction. See 18 U.S.C. 3582(c)(1)(A).
    The Commission recognized that during the period between the 
enactment of the First Step Act in 2018 and this amendment, district 
courts around the country based sentence reductions on dozens of 
reasons and combinations of reasons. Based on a careful review of those 
cases, the Commission continues to believe what is stated in 
Application Note 4 to the current policy statement, i.e., that judges 
are ``in a unique position to determine whether the circumstances 
warrant a reduction.'' Guidance beyond that provided in the amended 
policy statement regarding what circumstances or combination of 
circumstances are sufficiently extraordinary and compelling to warrant 
a reduction in sentence is best provided by reviewing courts, rather 
than through an effort by the Commission to predict and specify in 
advance all of the grounds on which relief may be appropriate.
    The fifth modification to the list of specified extraordinary and 
compelling reasons appears in new subsection (b)(6) (``Unusually Long 
Sentence'') and permits non-retroactive changes in law (other than non-
retroactive amendments to the Guidelines Manual) to be considered 
extraordinary and compelling reasons warranting a sentence reduction, 
but only in narrowly circumscribed circumstances. Specifically, where 
(a) the defendant is serving an unusually long sentence; (b) the 
defendant has served at least ten years of the sentence; and (c) an 
intervening change in the law has produced a gross disparity between 
the sentence being served and the sentence likely to be imposed at the 
time the motion is filed, the change in law can qualify as an 
extraordinary and compelling reason after the court has fully 
considered the defendant's individualized circumstances.
    One of the expressed purposes of section 3582(c)(1)(A) when it was 
enacted in 1984 was to provide a narrow avenue for judicial relief from 
unusually long sentences. S. Rep. No. 98-225 (1983). Having abolished 
parole in the interest of certainty in sentencing, Congress recognized 
the need for such judicial authority. In effect, it replaced opaque 
Parole Commission review of every federal sentence with a transparent, 
judicial authority to consider reducing only a narrow subset of 
sentences--those presenting ``extraordinary and compelling'' reasons 
for a reduction.
    Subsections (b)(6) and (c) operate together to respond to a circuit 
split concerning when, if ever, non-retroactive changes in law may be 
considered as extraordinary and compelling reasons within the meaning 
of section 3582(c)(1)(A). Compare United States v. Ruvalcaba, 26 F.4th 
14, 16, 26-28 (1st Cir. 2022) (holding that non-retroactive changes in 
sentencing law may be considered in light of a defendant's particular 
circumstances), United States v. McCoy, 981 F.3d 271, 286-88 (4th Cir. 
2020) (same), United States v. Chen, 48 F.4th 1092, 1098 (9th Cir. 
2022) (same), and United States v. McGee, 992 F.3d 1035, 1047-48 (10th 
Cir. 2021) (same), with United States v. Andrews, 12 F.4th 255, 260-62 
(3d Cir. 2021), cert. denied, 142 S. Ct. 1446 (2022) (holding that non-
retroactive changes in law are not permissible considerations), United 
States v. McMaryion, 64 F.4th 257, 259-60 (5th Cir. 2023) (same), 
United States v. McCall, 56 F.4th 1048, 1061 (6th Cir. 2022) (en banc) 
(same), United States v. King, 40 F.4th 594, 595 (7th Cir. 2022) 
(same), United States v. Crandall, 25 F.4th 582, 585-86 (8th Cir. 2022) 
(same), and United States v. Jenkins, 50 F.4th 1185, 1198, 1198 (DC 
Cir. 2022) (same).
    The Commission considered whether the foregoing split among the 
circuit courts of appeals was properly addressed by the Commission, 
which typically resolves such disagreements when they relate to its 
guidelines or policy statements, see Braxton v. United States, 500 U.S. 
344 (1991), or by the Supreme Court. In making that determination, the 
Commission was influenced by the fact that on several occasions the 
Department of Justice successfully opposed Supreme Court review of the 
issue on the ground that it should be addressed first by the 
Commission. See, e.g., Brief For the United States in Opposition to 
Grant of Certiorari, Jarvis v. United States, No. 21-568, 2021 WL 
5864543 (U.S. Dec. 8, 2021); Memorandum For the United States in 
Opposition to Grant of Certiorari, Watford v. United States, No. 21-
551, 2021 WL 5983234 (U.S. Dec. 15, 2021); Memorandum For the United 
States in Opposition to Grant of Certiorari, Williams v. United States, 
No. 21-767, 2022 WL 217947 (U.S. Jan. 24, 2022); Memorandum For the 
United States in Opposition to Grant of Certiorari, Thacker v. United 
States, No. 21-877, 2022 WL 467984 (U.S. Feb. 14, 2022).
    The amendment agrees with the circuits that authorize a district 
court to consider non-retroactive changes in the law as extraordinary 
and compelling circumstances warranting a sentence reduction but adopts 
a tailored approach that narrowly limits that principle in multiple 
ways. First, it permits the consideration of such changes only in cases 
involving ``unusually long sentences,'' which the legislative history 
to the SRA expressly identified as a context in which sentence 
reduction authority is needed. See S. Rep. No. 98-225, at 55 (1983), 
reprinted in 1984 U.S.C.C.A.N. 3182, 3238-39. (``The Committee believes 
that there may be unusual cases in which the eventual reduction in the 
length of a term of imprisonment is justified by changed circumstances. 
These would include cases of severe illness, cases in which other 
extraordinary and compelling circumstances justify a reduction of an 
unusually long

[[Page 28259]]

sentence, and some cases in which the sentencing guidelines for the 
offense of which the defender [sic] was convicted have been later 
amended to prove a shorter term of imprisonment.''). Second, the change 
in law itself may be considered an extraordinary and compelling reason 
only where it would produce a gross disparity between the length of the 
sentence being served and the sentence likely to be imposed at the time 
the motion is filed. Finally, to address administrative concerns raised 
by some commenters, the amendment limits the application of this 
provision to individuals who have served at least 10 years of the 
sentence the motion seeks to reduce. Commission data show that between 
fiscal year 2013 and fiscal year 2022, fewer than 12 percent (11.5%) of 
all offenders were sentenced to a term of imprisonment of ten years or 
longer.
    Subsection (b)(6) excludes from consideration as extraordinary and 
compelling reasons warranting a reduction in sentence changes to the 
Guidelines Manual that the Commission has not made retroactive. Public 
comment requested that the Commission clarify the interaction between 
Sec.  1B1.13 and Sec.  1B1.10, and the Commission determined that 
excluding non-retroactive changes to the guidelines from consideration 
as extraordinary and compelling reasons was consistent with Sec.  
1B1.10 and the Supreme Court's decision in Dillon v. United States, 560 
U.S. 817 (2010).
    To more fully address the proper role of changes in law in this 
context, the amendment also adds a new subsection (c) to the policy 
statement. Whereas subsection (b)(6) narrowly limits the circumstances 
in which a non-retroactive change in the law can constitute an 
extraordinary and compelling reason that itself can warrant a reduction 
in sentence, subsection (c) of the amended policy statement governs the 
use of changes in the law in cases where a defendant ``otherwise 
establishes that extraordinary and compelling reasons warrant a 
sentence reduction.'' In those circumstances, all changes in law, 
including non-retroactive amendments to the Guidelines Manual, may 
properly be considered in determining the extent of a sentencing 
reduction. For example, a defendant's motion may present the following 
circumstances: (a) commendable rehabilitation while incarcerated; (b) 
the offense conduct occurred when the defendant was in his late teens 
or early twenties; and (c) pursuant to intervening legislation or 
intervening Guidelines amendments, the sentence likely to be imposed at 
the time of the motion would be lower than the sentence being served, 
but not grossly so. In those circumstances, the change in law could not 
properly be considered an extraordinary and compelling reason 
warranting a reduction in sentence. However, if the court determines 
that the combination of the other two factors constitutes an 
extraordinary and compelling reason, the change in law is among the 
broad array of factors that may properly be considered in determining 
the extent of any such reduction. This aspect of the amendment is fully 
consistent with Concepcion v. United States, 142 S. Ct. 2389 (2022).
    Finally, the requirements in subsection (b)(6) that the defendant 
be serving an unusually long sentence and have served at least ten 
years of such sentence are not applicable to cases not covered by that 
subsection. Those requirements apply only when a defendant seeks to 
have a non-retroactive change in law itself be considered an 
extraordinary and compelling reason warranting a reduction in sentence.

New Application Notes Regarding Interaction With 18 U.S.C. 3622 and 
Notification of Victims

    The amendment also adds two new application notes to the Commentary 
to Sec.  1B1.13. New Application Note 1 provides that a reduction under 
this policy statement is not appropriate when temporary release under 
18 U.S.C. 3622 (a furlough granted by the Bureau of Prisons) 
``adequately addresses'' the defendant's circumstances. This new 
application note responds to public comment, including comment from the 
Criminal Law Committee for the Judicial Conference of the United 
States, urging the Commission to clarify that this policy statement is 
not intended to address temporary medical or family circumstances that 
a BOP-granted furlough adequately addresses.
    New Application Note 2 ``encourages the court to make its best 
effort to ensure that any victim of the offense is reasonably, 
accurately, and timely notified, and provided, to the extent 
practicable, with an opportunity to be reasonably heard, unless any 
such victim previously requested not to be notified.'' Although Sec.  
3582(c)(1)(A) does not require a court to conduct a public court 
proceeding before resolving a motion, and in many cases the passage of 
time can make victim identification and notification difficult, the 
Commission encourages the court to make its best effort to notify any 
victims and, to the extent public court proceedings are held, afford 
them an opportunity to be heard, unless the victim previously requested 
not to be notified.

Conforming Changes

    Finally, as conforming changes, the amendment deletes Application 
Notes 4 and 5 and makes a minor technical change to the Background 
Commentary. Application Note 4 reflected that only the Bureau of 
Prisons could file a motion under 18 U.S.C. 3582(c)(1)(A) before the 
First Step Act and, as such, ``encourage[d] the Director of the Bureau 
of Prisons to file such a motion.'' Application Note 5 provided that 
``[a]ny 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.'' These two application notes 
were deleted because a motion by the Director of the Bureau of Prisons 
is no longer required after the enactment of the First Step Act. The 
Background Commentary is also amended to reflect that the Commission is 
``required,'' as opposed to ``authorized,'' to ``describe what should 
be considered extraordinary and compelling reasons for sentence 
reduction.''
    2. Amendment: The Commentary to Sec.  2A2.4 captioned ``Statutory 
Provisions'' is amended by striking ``18 U.S.C. Sec. Sec.  111'' and 
inserting ``18 U.S.C. Sec. Sec.  40A, 111''.
    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. Sec.  1992(a)(1)'' and inserting ``18 
U.S.C. Sec.  39B, 1992(a)(1)''.
    The Commentary to Sec.  2B1.1 captioned ``Statutory Provisions'' is 
amended by striking ``7 U.S.C. Sec.  6, 6b, 6c, 6h, 6o, 13, 23; 15 
U.S.C. Sec.  50, 77e, 77q, 77x, 78j, 78ff, 80b-6, 1644, 6821; 18 U.S.C. 
Sec.  38, 225, 285-289, 471-473, 500, 510, 553(a)(1), 641, 656, 657, 
659, 662, 664, 1001-1008, 1010-1014, 1016-1022, 1025, 1026, 1028, 1029, 
1030(a)(4)-(5), 1031, 1037, 1040, 1341-1344, 1348, 1350, 1361, 1363, 
1369, 1702, 1703 (if vandalism or malicious mischief, including 
destruction of mail, is involved), 1708, 1831, 1832, 1992(a)(1), 
(a)(5), 2113(b), 2282A, 2282B, 2291, 2312-2317, 2332b(a)(1), 2701; 19 
U.S.C. Sec.  2401f; 29 U.S.C. Sec.  501(c); 42 U.S.C. Sec.  1011; 49 
U.S.C. 14915, 30170, 46317(a), 60123(b)'', and inserting ``5 U.S.C. 
Sec. Sec.  8345a, 8466a; 7 U.S.C. Sec.  6, 6b, 6c, 6h, 6o, 13, 23; 15 
U.S.C. Sec. Sec.  50, 77e, 77q, 77x, 78j, 78ff, 80b-6, 1644, 6821; 18 
U.S.C. Sec.  38, 220, 225, 285-289, 471-473, 500, 510, 553(a)(1), 641, 
656, 657, 659, 662, 664, 1001-1008, 1010-1014,

[[Page 28260]]

1016-1022, 1025, 1026, 1028, 1029, 1030(a)(4)-(5), 1031, 1037, 1040, 
1341-1344, 1348, 1350, 1361, 1363, 1369, 1702, 1703 (if vandalism or 
malicious mischief, including destruction of mail, is involved), 1708, 
1831, 1832, 1992(a)(1), (a)(5), 2113(b), 2282A, 2282B, 2291, 2312-2317, 
2332b(a)(1), 2701; 19 U.S.C. Sec.  2401f; 20 U.S.C. 1097(a), (b), (d), 
(e); 29 U.S.C. 501(c); 42 U.S.C. Sec. 1011; 49 U.S.C. Sec.  14915, 
30170, 46317(a), 60123(b)''.
    The Commentary to Sec.  2B4.1 captioned ``Statutory Provisions'' is 
amended by striking ``18 U.S.C. Sec.  215'' and inserting ``18 U.S.C. 
Sec.  215, 220''.
    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 18 U.S.C. 
Sec. Sec.  2421A(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 (3) by striking ``increase by 2 levels'' and inserting 
``increase by 2 levels. Provided, however, that subsection (b)(3)(B) 
shall not apply if the offense of conviction is 18 U.S.C. Sec.  
2421A'';
    and 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 18 U.S.C. Sec. Sec.  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.  2H3.1 captioned ``Statutory Provisions'' is 
amended by striking ``47 U.S.C. Sec.  605'' and inserting ``44 U.S.C. 
Sec.  3572; 47 U.S.C. Sec.  605''.
    The Commentary to Sec.  2N1.1 captioned ``Statutory Provisions'' is 
amended by striking ``18 U.S.C. Sec.  1365(a), (e)'' and inserting ``18 
U.S.C. Sec.  1365(a), (e); 21 U.S.C. 333(b)(7). For additional 
statutory provision(s), see Appendix A (Statutory Index)''.
    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.  2S1.3 captioned ``Statutory Provisions'' is 
amended by striking ``5332'' and inserting ``5332, 5335, 5336''.
    The Commentary to Sec.  2X5.2 captioned ``Statutory Provisions'' is 
amended by striking ``18 U.S.C. Sec.  1365(f), 1801; 34 U.S.C. Sec.  
12593; 49 U.S.C. Sec.  31310.'' and inserting ``10 U.S.C. Sec.  
2733a(g)(2); 18 U.S.C. Sec.  39B, 1365(f), 1801, 2259(d)(4); 34 U.S.C. 
Sec.  12593; 49 U.S.C. Sec.  31310. For additional statutory 
provision(s), see Appendix A (Statutory Index).''.
    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. Sec.  8345a 2B1.1
5 U.S.C. Sec.  8466a 2B1.1'';

    by inserting before the line referenced to 12 U.S.C. Sec.  631 the 
following new line reference:

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

    by inserting before the line referenced to 18 U.S.C. Sec.  43 the 
following new line references:

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

    by inserting before the line referenced to 18 U.S.C. Sec.  224 the 
following new line reference:

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

    by inserting before the line referenced to 18 U.S.C. Sec.  2260(a) 
the following new line reference:

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

    by inserting before the line referenced to 18 U.S.C. Sec.  2320 the 
following new line reference:

``18 U.S.C. Sec.  2319C 2B5.3'';

    by inserting before the line referenced to 18 U.S.C. Sec.  2422 the 
following new line reference:

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

    by inserting before the line referenced to 21 U.S.C. Sec.  101 the 
following new line reference:

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

    by inserting before the line referenced to 21 U.S.C. Sec.  458 the 
following new line reference:

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

    by inserting before the line referenced to 31 U.S.C. Sec.  5363 the 
following new line references:

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

    and by inserting before the line referenced to 45 U.S.C. Sec.  
359(a) the following new line reference:

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

    Reason for Amendment: This multi-part amendment responds to 
recently enacted legislation.

FDA Reauthorization Act of 2017

    First, the amendment amends Appendix A (Statutory Index) to 
reference a new offense for counterfeit drugs at 21 U.S.C. 333(b)(8) 
(Penalties [for violations of the Federal Food, Drug, and Cosmetic Act 
(FDCA)]) 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, Public Law 115-52 (Aug. 18, 2017). The Act added 
subsection 333(b)(8), which provides that the statutory maximum term of 
imprisonment is ten years for a violation of 21 U.S.C. 331(i)(3) 
(Prohibited acts [under the FDCA]). Subsection 331(i)(3) prohibits 
causing a drug to be counterfeited, or making, selling, dispensing, or 
holding for sale or dispensing, a counterfeit drug. The Commission 
determined that Sec.  2N2.1 is the most appropriate guideline to which 
to reference this offense because Sec.  2N2.1 covers similar penalty 
provisions at section 333.

Allow States and Victims To Fight Online Sex Trafficking Act

    Second, the amendment amends Sec. Sec.  2G1.1 (Promoting a 
Commercial Sex Act or Prohibiting Sexual Conduct with an Individual 
Other than a Minor) and 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 response to the Allow States and Victims 
to Fight Online Sex Trafficking Act of 2017, Public Law 115-164 (Apr. 
11, 2017). The Act added a new offense at 18 U.S.C. 2421A(a) (Promotion 
or facilitation of prostitution and reckless disregard of sex 
trafficking) which prohibits owning, managing, or operating an 
interactive computer service with the intent to promote or

[[Page 28261]]

facilitate prostitution. Section 2421A has a statutory maximum term of 
imprisonment of ten years. The Act included an aggravated offense at 
subsection 2421A(b)(2) if the offender commits an offense under 
subsection 2421A(a) while acting in reckless disregard of the fact that 
such conduct contributed to sex trafficking in violation of 18 U.S.C. 
1591(a) (Sex trafficking of children or by force, fraud, or coercion). 
Offenses under section 1591(a) that involve force, fraud, coercion, or 
minors have statutory mandatory minimum terms of imprisonment of at 
least ten years and statutory maximum terms of imprisonment of life. 
Offenses under subsection 2421A(b)(2) have a 25-year statutory maximum 
term of imprisonment to reflect the serious nature of the sex 
trafficking conduct in violation of section 1591(a). To reflect the 
statutory maximum term of imprisonment at subsection 2421A(b)(2), the 
amendment amends the 4-level enhancement at Sec.  2G1.1(b)(1)(B) and 
adds a new 4-level enhancement at Sec.  2G1.3(b)(4)(B) that apply if 
the offense of conviction is 18 U.S.C. 2421A(b)(2). The amendment also 
amends Sec.  2G1.3(b)(3) to provide that Sec.  2G1.3(b)(3)(B) shall not 
apply if the offense of conviction is 18 U.S.C. 2421A because the use 
of a computer is already accounted for in the base offense level.

FAA Reauthorization Act of 2018

    Third, the amendment amends Appendix A to reference new offenses in 
the FAA Reauthorization Act of 2018, Public Law 115-254 (Oct. 5, 2018). 
The new offense at 18 U.S.C. 39B (Unsafe operation of unmanned 
aircraft) is referenced 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)). Section 39B prohibits the knowing or reckless unsafe 
operation of drones that interfere with the safe operation of an 
aircraft carrying one or more persons or operated in close proximity to 
an airport runway. Section 39B has a statutory maximum term of 
imprisonment of one year. The statutory maximum term of imprisonment 
for reckless violations that cause serious bodily injury or death is 
ten years, and for knowing violations that cause serious bodily injury 
or death is any term of years or life. The Commission determined that 
Sec.  2A5.2 is the most appropriate guideline to which to reference 
felony violations of section 39B because it covers conduct interfering 
with the operation of aircraft. Additionally, providing a reference to 
Sec.  2X5.2 is consistent with Commission practice relating to new 
misdemeanor offenses.
    The FAA Reauthorization Act also added a new offense at 18 U.S.C. 
40A (Operation of unauthorized unmanned aircraft over wildfires) which 
is referenced in Appendix A to Sec.  2A2.4 (Obstructing or Impeding 
Officers). Section 40A prohibits operating a drone in a manner that 
interferes with wildfire suppression or with law enforcement or 
emergency response efforts related to wildfire suppression. Section 40A 
has a statutory maximum term of imprisonment of two years. The 
Commission determined that Sec.  2A2.4 is the most appropriate 
guideline to which to reference this offense because it covers conduct 
involving interfering with and obstructing or impeding officers.

SUPPORT for Patients and Communities Act

    Fourth, the amendment amends Appendix A to reference a new offense 
at 18 U.S.C. 220 (Illegal remunerations for referrals to recovery 
homes, clinical treatment facilities, and laboratories) 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 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 (Oct. 24, 2018). Section 220 
prohibits soliciting, receiving, paying, or offering any remuneration, 
including kickbacks, bribes, or rebates, for referring patients to a 
facility covered by a health care benefit program. Section 220 has a 
statutory maximum term of imprisonment of ten years. The Commission 
determined that Sec. Sec.  2B1.1 and 2B4.1 are the most appropriate 
guidelines to which to reference this offense because both guidelines 
cover conduct involving kickbacks and bribery.

Amy, Vicky, and Andy Child Pornography Victim Assistance Act

    Fifth, the amendment amends Appendix A to reference a new offense 
at 18 U.S.C. 2259(d) (Mandatory restitution [for child pornography 
victims]) to Sec.  2X5.2 in response to the Amy, Vicky, and Andy Child 
Pornography Victim Assistance Act, Public Law 115-299 (Dec. 7, 2018). 
Subsection 2259(d) prohibits attorneys from charging fees in excess of 
15 percent when representing a child pornography victim who receives 
``defined monetary assistance'' from the Child Pornography Victims 
Reserve and provides for a statutory maximum term of imprisonment of 
one year. Providing a reference to Sec.  2X5.2 is consistent with 
Commission practice relating to new misdemeanor offenses.

Foundations for Evidence-Based Policymaking Act

    Sixth, the amendment amends Appendix A to reference a new offense 
at 44 U.S.C. 3572 (Confidential information protection) to Sec.  2H3.1 
(Interception of Communications; Eavesdropping; Disclosure of Certain 
Private or Protected Information) in response to the Confidential 
Information Protection and Statistical Efficiency Act, part of the 
Foundations for Evidence-Based Policymaking Act of 2018, Public Law 
115-435 (Jan. 14, 2019).
    Section 3572 prohibits the unauthorized disclosure of information 
collected by an agency under a pledge of confidentiality for 
exclusively statistical purposes or using the information for other 
than statistical purposes. Section 3572 has a statutory maximum term of 
imprisonment of five years. The Commission determined that Sec.  2H3.1 
is the most appropriate guideline to which to reference this offense 
because it covers conduct involving the unauthorized disclosure of 
information.

National Defense Authorization Act for Fiscal Year 2020

    Seventh, the amendment amends Appendix A to reference a new offense 
at 10 U.S.C. 2733a (Armed Forces; Medical malpractice claims by members 
of the uniformed services) to Sec.  2X5.2 in response to the National 
Defense Authorization Act for Fiscal Year 2020, Public Law 116-92 (Dec. 
20, 2019). Section 2733a prohibits attorneys from charging fees in 
excess of 20 percent when representing a member of the uniformed 
services who receives a payment under section 2733a for medical 
malpractice caused by a health care provider of the Department of 
Defense. Section 2733a has a statutory maximum term of imprisonment of 
one year. Providing a reference to Sec.  2X5.2 is consistent with 
Commission practice relating to new misdemeanor offenses.

Representative Payee Fraud Prevention Act

    Eighth, the amendment amends Appendix A to reference two new 
offenses at 5 U.S.C. 8345a (Government Organization and Employees; 
Embezzlement or conversion of

[[Page 28262]]

payments) and 8466a (Embezzlement or conversion of payments) to Sec.  
2B1.1 in response to the Representative Payee Fraud Prevention Act of 
2019, Public Law 116-126 (Mar. 18, 2020). Sections 8345a and 8466a 
prohibit representative payees of minors or other individuals under a 
legal disability from embezzling or converting retirement payments 
under the Civil Service Retirement System or the Federal Employees' 
Retirement System. The statutory maximum term of imprisonment for both 
sections is five years. The Commission determined that Sec.  2B1.1 is 
the most appropriate guideline to which to reference these offenses 
because it covers conduct involving similar financial fraud.

Stop Student Debt Relief Scams Act

    Ninth, the amendment amends Appendix A to reference a new offense 
at 20 U.S.C. 1097(e) (Education; Student Assistance Programs; Criminal 
penalties) to Sec.  2B1.1 in response to the Stop Student Debt Relief 
Scams Act of 2019, Public Law 116-251 (Dec. 22, 2020). Subsection 
1097(e) prohibits the unauthorized use of an access device relating to 
student assistance programs issued to another or obtained by fraud to 
access the information technology systems of the Department of 
Education for commercial advantage or private financial gain. 
Subsection 1097(e) has a statutory maximum term of imprisonment of five 
years. The Commission determined that Sec.  2B1.1 is the most 
appropriate guideline to which to reference this offense because Sec.  
2B1.1 covers other section 1097 offenses prohibiting embezzlement, 
fraud and false statements involved in student assistance programs.

Protecting Lawful Streaming Act

    Tenth, the amendment amends Appendix A to reference a new offense 
at 18 U.S.C. 2319C (Illicit digital transmission services) to Sec.  
2B5.3 (Criminal Infringement of Copyright or Trademark) in response to 
the Protecting Lawful Streaming Act, part of the 2021 Consolidated 
Appropriations Act, Public Law 116-260 (Dec. 27, 2020). Section 2319C 
prohibits publicly offering or providing digital transmission services 
designed to provide the unauthorized transmission of copyrighted works, 
including pre-release works being prepared for commercial public 
performance, and provides for a statutory maximum term of imprisonment 
of three years. The statutory maximum term of imprisonment is five 
years if the offense involved one or more pre-release works, and for a 
second or subsequent violation of section 2319C, the statutory maximum 
term of imprisonment is ten years. The Commission determined that Sec.  
2B5.3 is the most appropriate guideline to which to reference this 
offense because it covers conduct involving criminal copyright 
infringement including pre-release works.

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

    Eleventh, the amendment amends Appendix A to reference multiple new 
offenses at 31 U.S.C. 5335 (Money and Finance; Concealment of source of 
assets in monetary transactions) and 5336 (Beneficial ownership 
information reporting requirements) to Sec.  2S1.3 (Structuring 
Transactions to Evade Reporting Requirement; Failure to Report Cash or 
Monetary Transactions; Failure to File Currency and Monetary 
Instruments Report) in response to the William M. (Mac) Thornberry 
National Defense Authorization Act for Fiscal Year 2021, Public Law 
116-283 (Jan. 1, 2021).
    Subsection 5335(b) prohibits concealing, falsifying, or 
misrepresenting a material fact from a financial institution about the 
ownership or control of certain assets over $1,000,000 if the person or 
entity controlling the assets is a certain foreign figure or associate. 
Subsection 5335(c) prohibits concealing, falsifying, or misrepresenting 
a material fact, to or from a financial institution, about the source 
of funds in monetary transactions involving ``primary money laundering 
concerns'' and that violate the prohibitions prescribed in section 
5318A(b)(5). Both subsections 5335(b) and 5335(c) have a statutory 
maximum term of imprisonment of ten years.
    Subsection 5336(h)(1) prohibits willfully providing false or 
fraudulent beneficial ownership information to the Department of the 
Treasury's Financial Crimes Enforcement Network (``FinCEN'') in 
accordance with the reporting requirements in subsection 5336(b). 
Subsection 5336(h)(1) has a statutory maximum term of imprisonment of 
two years. Subsection 5336(c)(4) prohibits employees and officers of 
any requesting agency from violating the protocols established by the 
Secretary of the Treasury or the unauthorized disclosure or use of the 
beneficial ownership information submitted to FinCEN. Subsection 
5336(h)(2) prohibits any person from knowingly disclosing or using 
beneficial ownership information obtained through a report submitted 
to, or through a disclosure made by, FinCEN, without authorization. 
Both subsections 5336(c)(4) and 5336(h)(2) have a statutory maximum 
term of imprisonment of five years. The statutory maximum term of 
imprisonment for a violation of subsection 5336(c)(4) or 5336(h)(2) is 
ten years if the offense was committed while violating another law of 
the United States or as part of a pattern of certain unlawful 
activities.
    The Commission determined that Sec.  2S1.3 is the most appropriate 
guideline to which to reference these new offenses because it covers 
similar conduct involving structuring financial transactions and 
requiring the filing of a Currency Transaction Report regarding 
payment, receipt, or transfer of United States coins or currency.
    3. Amendment: Section 2A3.3 is amended--
    in the heading by striking ``Acts'' and inserting ``Acts; Criminal 
Sexual Abuse of an Individual in Federal Custody''.
    in subsection (a) by striking ``14'' and inserting ``18'';
    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. Sec.  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.''.
    The Commentary to Sec.  2A3.3 captioned ``Statutory Provision'' is 
amended by striking ``Sec.  2243(b)'' and inserting ``Sec. Sec.  
2243(b), 2243(c)''.
    The Commentary to Sec.  2H1.1 captioned ``Statutory Provisions'' is 
amended by striking ``246, 247, 248, 249'' and inserting ``246-250''.
    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. Sec.  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. Sec.  2243(c) 2A3.3''.

    Reason for Amendment: This multi-part amendment responds to 
statutory changes provided in division W, title XII, of the Violence 
Against Women Act Reauthorization Act, Public Law 117-103 (Nov. 9, 
2022) and separately addresses concerns regarding cases involving 
sexual abuse committed by law enforcement or correctional personnel 
against victims in their custody, care, or supervision.

[[Page 28263]]

    First, the amendment amends Appendix A (Statutory Appendix) to 
reference the new offense created at 18 U.S.C. 250 (Penalties for civil 
rights offenses involving sexual misconduct) to Sec.  2H1.1 (Offenses 
Involving Individual Rights). New section 250 criminalizes engaging in 
or causing another to engage in sexual misconduct while committing any 
civil rights offense under chapter 13 (Civil Rights) of title 18, U.S. 
Code, or 42 U.S.C. 3631 (Fair Housing [violations]). Section 250 
delineates different degrees of prohibited sexual misconduct, including 
aggravated sexual abuse as defined in 18 U.S.C. 2241 (Aggravated sexual 
abuse), sexual abuse as defined in 18 U.S.C. 2242 (Sexual abuse), a 
sexual act not amounting to aggravated sexual abuse or sexual abuse, 
and sexual contact, as defined in 18 U.S.C. 2244 (Abusive sexual 
contact). The statutory maximum term of imprisonment for a violation of 
section 250 ranges from two years to any term of years or life, 
depending on the sexual conduct involved in the offense.
    The Commission determined that Sec.  2H1.1 is the most appropriate 
guideline to which to reference this new offense. Other similar 
offenses are referenced to this guideline. In addition, the Commission 
concluded that the alternative base offense levels provided in Sec.  
2H1.1 effectively address both the broad array of conduct criminalized 
under this new statute and the varying statutory maximum terms of 
imprisonment applicable to such conduct.
    Second, the amendment amends Appendix A to reference new subsection 
(c) at 18 U.S.C. 2243 (Sexual abuse of a minor, a ward, or an 
individual in Federal custody) to Sec.  2A3.3 and makes a conforming 
change to Sec.  2A3.3's title. The new subsection at 18 U.S.C. 2243 
prohibits law enforcement officers from knowingly engaging in a sexual 
act with an individual under arrest or supervision, in detention, or in 
federal custody. The Commission determined Sec.  2A3.3 is the most 
appropriate guideline to which to reference the new offense because it 
covers a similar offense at 18 U.S.C. 2243(b) prohibiting anyone in a 
federal prison, institution, or facility from knowingly engaging in a 
sexual act with a ward, defined as an inmate or other person in 
official detention and under the custodial, supervisory, or 
disciplinary authority of the person engaging in the act. Subsection 
2243(b) also has the same 15-year statutory maximum term of 
imprisonment, and a reference to this guideline will result in similar 
penalties for both subsections of section 2243.
    Finally, the amendment increases the base offense level at Sec.  
2A3.3 for offenses involving the sexual abuse of a ward or an 
individual in federal custody from 14 to 18. The Commission determined 
that the increased base offense level will more appropriately reflect 
the 15-year statutory maximum penalty for offenses referenced to this 
guideline and punish the serious sexual conduct involved in these 
offenses. In promulgating the amendment, the Commission was informed by 
both the rate and extent of above-range sentences in these cases. While 
the average guideline minimum in fiscal years 2018 through 2022 was 17 
months (median 12 months), the average sentence imposed was more than 
double, at 35 months (median 15 months).
    The Commission also concluded that an increased guideline range for 
Sec.  2A3.3 offenses would be more proportional to the guideline range 
at Sec.  2A3.2 (Criminal Sexual Abuse of a Minor Under the Age of 
Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts) for the 
sexual abuse of minors over the age of 12 and under the age of 16 
years, conduct prohibited by 18 U.S.C. 2243(a) with the same 15-year 
statutory maximum term of imprisonment as subsections 2243(b) and 
2243(c). Section 2A3.2 has a base offense level 18 and a 4-level 
enhancement if the victim is in the care, custody, or supervisory 
control of the defendant.
    Consistent with this approach, the amendment also amends Sec.  
2A3.3 to include the same cross reference currently provided for in 
Sec.  2A3.2 in order to ensure proportional guideline ranges for all 
section 2243 offenses when the offense involved aggravating sexual 
conduct. The new cross reference sends cases to Sec.  2A3.1 (Criminal 
Sexual Abuse; Attempt to Commit Criminal Sexual Abuse) 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), and further directs 
that Sec.  2A3.1 shall apply if the victim had not attained the age of 
12 years, regardless of the ``consent'' of the victim.
    4. Amendment: Section 2D1.1(a) is amended--
    in paragraph (1) 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 
committed 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'';
    and in paragraph (3) by striking ``similar offense'' and inserting 
``felony drug offense''.
    Section 2D1.1(b)(18) is amended by striking ``subdivisions'' and 
inserting ``paragraphs''.
    The Commentary to Sec.  2D1.1 captioned ``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;
    by inserting before Note 2 (as so redesignated) 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.'';
    and 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''.
    Section 4A1.3(b)(3)(B) is amended--

[[Page 28264]]

    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 requirement before receipt of the downward 
departure''.
    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'';
    and 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 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.'';
    by inserting the following new Note 1:
    ``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.'';
    by redesignating Note 4 as Note 2;
    in Note 2 (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 3 and 4:
    ``3. 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.'
    4. 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 5 and 6, respectively;
    in Note 5 (as so redesignated) by inserting at the beginning the 
following new heading: ``Government's Opportunity to Make 
Recommendation.--'';
    and in Note 6 (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''.
    Reason for Amendment: This two-part amendment revises Sec.  5C1.2 
(Limitation on Applicability of Statutory Minimum Sentences in Certain 
Cases) and subsections (a)(1) and (a)(3) of Sec.  2D1.1 (Unlawful 
Manufacturing, Importing, Exporting, or Trafficking (Including 
Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy) in response to the First Step Act of 2018, Public Law 115-
391 (Dec. 21, 2018) (``First Step Act''). The First Step Act amended 
the eligibility criteria of the ``safety valve'' provision at 18 U.S.C. 
3553(f) and the enhanced penalty provisions for certain drug 
trafficking defendants at 21 U.S.C. 841(b) and 960(b). The amendment 
primarily revises Sec.  5C1.2 to conform it to the statutory safety 
valve, as amended by the First Step Act. In addition, the amendment 
revises subsections (a)(1) and (a)(3) of Sec.  2D1.1 to make the 
guideline's reference to the type of prior offenses that trigger 
enhanced mandatory minimum penalties

[[Page 28265]]

consistent with the amended statutory provisions.
    First, the amendment makes three changes to Sec.  5C1.2 and its 
corresponding commentary to reflect the statutory changes to section 
3553(f) made by the First Step Act. The First Step Act expanded the 
safety valve provision at section 3553(f) by extending its 
applicability to defendants convicted of maritime offenses (46 U.S.C. 
70503 and 70506) and broadening the criminal history eligibility 
criteria 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 amendment revises 
Sec.  5C1.2(a) to include maritime offenses and the expanded statutory 
criminal history criteria. Next, it revises Application Note 1 to 
incorporate the statutory definition for the term ``violent offense.'' 
Finally, it revises Application Note 7 to reflect the new statutory 
limitation 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.''
    Second, the amendment revises Sec.  5C1.2(b) to account for the 
expanded class of defendants who qualify for safety valve relief. 
Section 5C1.2(b) implemented Congress's directive requiring that the 
guideline minimum be at least 24 months for defendants whose 
statutorily required minimum sentence was at least five years by 
providing a minimum offense level of 17 for such offenders. See Violent 
Crime Control and Law Enforcement Act of 1994, Public Law 103-222, 
80001(b), 108 Stat. 1796, 1985 (1994) (``In the case of a defendant for 
whom the statutorily required minimum sentence is 5 years, such 
guidelines and amendments to guidelines . . . shall call for a 
guideline range in which the lowest term of imprisonment is at least 24 
months.''); see also USSG App. C, amend. 624 (effective Nov. 1, 2001) 
(adding Sec.  5C1.2(b) ``in order to comply more strictly with the 
directive''). Before the First Step Act, only defendants in Criminal 
History Category (CHC) I (with no more than one criminal history point) 
could qualify for safety valve relief, and a base offense level of 17 
therefore correlated with a guideline range of 24 to 30 months for all 
safety-valve-eligible defendants. After the First Step Act, a safety-
valve-eligible defendant can be in any CHC, and an offense level of 17 
correlates with the following guideline ranges at each category: I (24-
30 months); II (27-33); III (30-37); IV (37-46); V (46-57); and VI (51-
63). Because Congress's directive is tied to the existence of a 5-year 
mandatory minimum penalty and not to the defendant's CHC, the amendment 
replaces the offense-level floor with a guideline-range floor. The 
Commission determined that the proportionality concerns raised in 
public comment and testimony are addressed by the operation of the 
Sentencing Table, irrespective of the offense-level floor.
    Third, the amendment makes conforming changes to Sec.  4A1.3 
(Departures Based on Inadequacy of Criminal History Category (Policy 
Statement)), which references the number of criminal history points 
permitted under Sec.  5C1.2(a)(1).
    Fourth, the amendment makes only non-substantive changes to Sec.  
2D1.1(b)(18) and Sec.  2D1.11(b)(6), the 2-level reductions that are 
tethered to the eligibility criteria of paragraphs (1)-(5) of Sec.  
5C1.2(a). The 2-level reductions in Sec.  2D1.1 and Sec.  2D1.11 apply 
to any defendant who meets the revised criteria of Sec.  5C1.2.
    Finally, the amendment revises subsections (a)(1) and (a)(3) of 
Sec.  2D1.1 to replace the term ``similar offense'' with the 
appropriate terms set forth in the relevant statutory provisions, as 
amended by the First Step Act.
    The penalty provisions at 21 U.S.C. 841(b) and 960(b) provide 
enhanced mandatory minimum penalties for defendants (1) whose instant 
offense resulted in death or serious bodily injury or (2) who have 
prior convictions for certain specified offenses. Penalties are further 
increased if death or serious bodily injury occurred as a result of the 
instant offense and the defendant has 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,'' as defined in 21 U.S.C. 802(44). The First 
Step 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) by replacing the 
term ``felony drug offense'' with ``serious drug felony,'' as defined 
in 21 U.S.C. 802(57), and adding ``serious violent felony'' offenses, 
as defined in 21 U.S.C. 802(58). 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.''
    The enhanced statutory penalty structure is accounted for through 
heightened alternative base offense levels (BOL) at Sec.  2D1.1(a)(1)-
(a)(4). Prior to the amendment, Sec.  2D1.1(a)(1) provided for a BOL of 
43 ``if the defendant is convicted under [any of six enumerated 
subsections], 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 similar offense.'' Subsection 2D1.1(a)(3) is identical to Sec.  
2D1.1(a)(1), except that it provides a BOL of 30 and applies if the 
defendant is convicted of an offense involving a Schedule III 
controlled substance under 21 U.S.C. 841(b)(1)(E) or 21 U.S.C. 
960(b)(5).
    The First Step Act amended four of the six penalty provisions 
referenced in Sec.  2D1.1(a)(1) and, for those amended provisions, the 
term ``similar offense'' is over-inclusive, because it includes drug 
offenses that do not meet the definition of ``serious drug felony,'' 
and under-inclusive, because it fails to account for a prior ``serious 
violent felony.'' The amendment divides Sec.  2D1.1(a)(1) into two 
subparagraphs, (A) and (B). Subparagraph (A), which references the four 
statutory provisions amended by the First Step Act, replaces the term 
``similar offense'' with ``serious drug felony or serious violent 
felony.'' Subparagraph (B), which references the two provisions that 
were not amended, replaces the term ``similar offense'' with ``felony 
drug offense.'' The amendment also amends Sec.  2D1.1(a)(3), by 
replacing the term ``similar offense'' with ``felony drug offense,'' 
for consistency with the terminology used in Sec.  2D1.1(a)(1).
    5. 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, and 
acted with willful blindness or conscious avoidance of knowledge that 
such mixture or substance was not the legitimately manufactured drug, 
increase by 2 levels. The term `drug,' as used in subsection 
(b)(13)(B), has the meaning given that term in 21 U.S.C. 321(g)(1)''.
    Reason for Amendment: This amendment revises subsection (b)(13) of

[[Page 28266]]

Sec.  2D1.1 (Unlawful Manufacturing, Importing, Exporting, or 
Trafficking (Including Possession with Intent to Commit These 
Offenses); Attempt or Conspiracy) to add a new subparagraph (B) with an 
alternative 2-level enhancement for offenses where the defendant 
represented or marketed as a legitimately manufactured drug another 
mixture or substance containing fentanyl or a fentanyl analogue, and 
acted with willful blindness or conscious avoidance of knowledge that 
such mixture or substance was not the legitimately manufactured drug. 
The new subparagraph (B) refers to 21 U.S.C. 321(g)(1) to define the 
term ``drug.''
    Since Sec.  2D1.1(b)(13)'s initial promulgation in 2018, the 
distribution of fentanyl and fentanyl analogues has dramatically 
increased. The Drug Enforcement Administration reported a substantial 
increase in the seizure of fake prescription pills, seizing over 50.6 
million in calendar year 2022, with 70 percent containing fentanyl. Of 
those seized pills containing fentanyl, six out of ten contained a 
potentially lethal dose of the substance, according to lab testing. 
Additionally, the Centers for Disease Control and Prevention (CDC) 
estimates there were 107,622 drug overdose deaths in the United States 
in 2021, an increase of nearly 15 percent from the 93,655 deaths 
estimated in 2020. The CDC attributes 80,816 of the drug overdose 
deaths in 2021 to synthetic opioids, primarily fentanyl.
    Commission data also indicates an increase in fentanyl and fentanyl 
analogue offenses, with fentanyl supplanting other drug types, such as 
crack cocaine and heroin, to become the third most prevalent primary 
drug (12.6%) among federal drug offenses in fiscal year 2022. In fiscal 
year 2017, 166 offenders were held accountable for fentanyl or fentanyl 
analogues. By fiscal year 2022, the number of offenders increased to 
2,511 offenders.
    The new alternative 2-level enhancement reflects the increased 
culpability of an individual who acted with willful blindness or 
conscious avoidance of knowledge that the substance the individual 
represented or marketed as a legitimately manufactured drug contained 
fentanyl or a fentanyl analogue. The Commission determined that the 
``willful blindness'' and ``conscious avoidance'' doctrines are ``well 
established in criminal law,'' as recognized by the Supreme Court. See 
Glob.-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011). 
While appellate courts articulate the ``willful blindness'' or 
``conscious avoidance'' doctrines slightly differently, the requirement 
makes clear that the government bears the burden to prove by a 
preponderance of the evidence that the enhancement applies based on the 
subjective belief and deliberate action of the defendant committing the 
offense.
    6. Amendment: 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 (4) by striking ``If any firearm (A) was stolen, 
increase by 2 levels; or (B) had an altered or obliterated serial 
number, increase by 4 levels'' and inserting ``If (A) any firearm was 
stolen, increase by 2 levels; or (B)(i) any firearm had an altered or 
obliterated serial number; or (ii) the defendant knew that any firearm 
involved in the offense was not otherwise marked with a serial number 
(other than a firearm manufactured prior to the effective date of the 
Gun Control Act of 1968) or was willfully blind to or consciously 
avoided knowledge of such fact, increase by 4 levels'';
    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 
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; (ii) attempted or conspired to commit the conduct described 
in clause (i); or (iii) received a firearm or any ammunition as a 
result of inducing the conduct described in clause (i), increase by 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 at the 
time of the offense; or (III) intended to use or dispose of the 
firearms unlawfully; (ii) attempted or conspired to commit the conduct 
described in clause (i); or (iii) received two or more firearms as a 
result of inducing the conduct described in clause (i), increase by 5 
levels.
    Provided, however, that subsection (b)(5)(C)(i)(I) 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 met the criteria set forth in the 
proviso of 18 U.S.C. 921(a)(33)(C).'';
    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); and
    (B) committed the offense in connection with the defendant's 
participation in a group, club, organization, or association of five or 
more persons, knowing or acting with willful blindness or conscious 
avoidance of knowledge that the group, club, organization, or 
association had as one of its primary purposes the commission of 
criminal offenses;
    increase by 2 levels.
    (9) If the defendant--
    (A) receives an enhancement under subsection (b)(5);
    (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 and was otherwise unlikely to 
commit such an offense; or (ii) was unusually vulnerable to being 
persuaded or induced to commit the offense due to a physical or mental 
condition;
    decrease by 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), and (b)(5)'';
    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

[[Page 28267]]

if the defendant knew that any firearm involved in the offense was not 
otherwise marked with a serial number (other than a firearm 
manufactured prior to the effective date of the Gun Control Act of 
1968) or was willfully blind to or consciously avoided knowledge of 
such fact, 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. Sec. Sec.  922(k) or 26 U.S.C. Sec. Sec.  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, if the offense involved a stolen 
firearm or stolen ammunition, apply subsection (b)(4)(A).'',
    and inserting the following paragraph:
    ``Similarly, if the offense to which Sec.  2K2.1 applies is 18 
U.S.C. Sec. Sec.  922(k) or 26 U.S.C. Sec. Sec.  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, if the offense involved a stolen 
firearm or stolen ammunition, or if the defendant knew that any firearm 
involved in the offense was not otherwise marked with a serial number 
(other than a firearm manufactured prior to the effective date of the 
Gun Control Act of 1968) or was willfully blind to or consciously 
avoided knowledge of such fact, apply subsection (b)(4)(A) or 
(B)(ii).'';
    in Note 8(B) by striking the following:
    ``Knowledge or Reason to Believe.--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 the following:
    ``Defendant's State of Mind.--Subsection (b)(4)(A) or (B)(i) 
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. However, subsection (b)(4)(B)(ii) only applies if the 
defendant knew that any firearm involved in the offense was not 
otherwise marked with a serial number (other than a firearm 
manufactured prior to the effective date of the Gun Control Act of 
1968) or was willfully blind to or consciously avoided knowledge of 
such fact.'';
    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 paragraphs (B), (C), and (D) as paragraphs (A), 
(B), and (C), respectively;
    in paragraph (A) (as so redesignated) by striking the following 
paragraphs:
    `` `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. Sec. Sec.  921(a)(33)(A).
    The term `defendant', consistent with Sec.  1B1.3 (Relevant 
Conduct), 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.'',
    and inserting the following paragraphs:
    `` `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. Sec. Sec.  921(a)(33)(A).
    The term `criminal justice sentence' includes probation, parole, 
supervised release, imprisonment, work release, or escape status.
    The term `defendant,' consistent with Sec.  1B1.3 (Relevant 
Conduct), 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.'';
    and in paragraph (B) (as so redesignated) by striking ``If the 
defendant trafficked substantially more than 25 firearms'' 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'';
    and by striking Note 15 as follows:
    ``15. Certain Convictions Under 18 U.S.C. Sec. Sec.  922(a)(6), 
922(d), and 924(a)(1)(A).--In a case in which the defendant is 
convicted under 18 U.S.C. Sec. Sec.  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.''.
    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. Sec. Sec.  932 2K2.1
18 U.S.C. Sec. Sec.  933 2K2.1''.

    Reason for Amendment: This multi-part amendment responds to the 
directive in section 12004(a)(5) of the Bipartisan Safer Communities 
Act, Public Law 117-159 (the ``Act''), addresses new offenses and other 
changes in law made by the Act, and revises the primary firearms 
guideline, Sec.  2K2.1 (Unlawful Receipt, Possession, or Transportation 
of Firearms or Ammunition; Prohibited Transactions Involving Firearms 
or Ammunition), to account for firearms that are not marked with a 
serial number. In the Act, Congress directed that the Commission:
    shall 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

[[Page 28268]]

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), 136 Stat. 1313, 1328 (2022).

New Straw Purchase and Firearms Trafficking Offenses

    The amendment makes two changes to account for the new offenses at 
18 U.S.C. 932 and 933 established by the Act. First, the amendment 
amends Appendix A (Statutory Index) to reference the new offenses to 
Sec.  2K2.1. Section 12004(a)(1) of the Act makes it unlawful to engage 
in straw purchasing of firearms (18 U.S.C. 932) or trafficking in 
firearms (18 U.S.C. 933). Sections 932 and 933 both carry statutory 
maximum sentences of 15 years of imprisonment. 18 U.S.C. 932(c)(1), 
933(b). The statutory maximum in section 932 increases to 25 years 
where the defendant has reasonable cause to believe the firearm would 
be used to commit a felony or certain other offenses. 18 U.S.C. 
932(c)(2). As both offenses address conduct that is analogous to other 
firearms offenses, the Commission determined that the most appropriate 
guideline is Sec.  2K2.1.
    Second, the amendment revises Sec.  2K2.1 to set the base offense 
level for defendants convicted of these crimes at level 14, or level 20 
if the offense involved either a semiautomatic firearm that is capable 
of accepting a large capacity magazine or a firearm described in 26 
U.S.C. 5845(a). The Commission set these base offense levels to the 
same levels applicable to defendants convicted under a third statute 
used to prosecute straw purchasers and traffickers with the same 15-
year statutory maximum, 18 U.S.C. 922(d), to ensure proportionality.

Increase Penalties for Straw Purchasing and Trafficking Offenses

    The amendment next revises Sec.  2K2.1 to respond to section 
12004(a)(5) of the Act, which directs the Commission to provide 
increased penalties for defendants convicted under 18 U.S.C. 932, 18 
U.S.C. 933, or ``other offenses applicable to the straw purchases and 
trafficking of firearms.'' Specifically, the amendment revises the 
existing ``trafficking'' specific offense characteristic at Sec.  
2K2.1(b)(5).
    Prior to the amendment, subsection (b)(5) provided an enhancement 
of four levels ``[i]f the defendant engaged in the trafficking of 
firearms.'' Application Note 13(A) provided that this enhancement 
applied if the defendant 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, whose possession or receipt 
would be unlawful or who intended to use or dispose of the firearm 
unlawfully. Application Note 13(B) defined a person whose possession or 
receipt would be unlawful as an individual who (i) had 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.
    The amendment revises subsection (b)(5) in three ways to comply 
with Congress's directive to include an increase for all defendants 
convicted under 18 U.S.C. 932, 18 U.S.C. 933, or other offenses 
involving straw purchasing or trafficking of firearms.
    First, the amendment creates a new subsection, Sec.  
2K2.1(b)(5)(A), which provides a 2-level enhancement for defendants 
convicted of illegally receiving a firearm under 18 U.S.C. 933(a)(2) 
(the trafficking receipt provision) or Sec.  933(a)(3) (attempting/
conspiring to violate section 933). This ensures that receipt-only 
defendants convicted under section 933 receive the requisite increase.
    Second, the amendment creates a new subsection, Sec.  
2K2.1(b)(5)(B), which provides a 2-level enhancement for any defendant 
engaged in straw purchasing or trafficking. This provision incorporates 
the elements of the straw purchasing and firearms trafficking statutes, 
including 18 U.S.C. 922(d), Sec.  932, and Sec.  933(a)(1), to provide 
an increase for defendants who attempted, conspired, or engaged in 
conduct involving the illicit transfer of a firearm or ammunition but 
who would not have received the trafficking enhancement prior to the 
amendment because of the limiting criteria in the existing Application 
Note 13. Those criteria included trafficking two or more firearms and 
that the recipient have criminal convictions for specified crimes.
    Third, the amendment revises the criteria previously set forth in 
Application Notes 13(A) and (B) and incorporates the criteria into 
subsection (b)(5)(C). New subsection (b)(5)(C) provides an increase for 
defendants who attempted, conspired, or engaged in conduct involving 
the illicit transfer of two or more firearms to a person who (i) had a 
prior conviction of a crime of violence, controlled substance offense, 
or misdemeanor crime of domestic violence; (ii) was under a criminal 
justice sentence at the time of the offense; or (iii) intended to use 
or dispose of the firearms unlawfully. The new subsection (b)(5)(C) 
increases the enhancement from four levels to five levels to ensure 
straw purchasers and firearms traffickers meeting these criteria 
receive increased penalties as required by the directive.
    The Commission determined that the expanded specific offense 
characteristic at subsection (b)(5) fully implements the directive by 
ensuring that defendants who illegally transfer a firearm receive an 
increased penalty under the guidelines. Specifically, the enhancement 
is tailored to apply to the most culpable defendants who engage in (a) 
straw purchasing, including those defendants who induce straw 
purchasing, and (b) firearms trafficking, including those defendants 
whose conduct was ``upstream'' in the gun trafficking pipeline. 
Consistent with the legislative history of the Act, public comment, and 
witness testimony, the Commission determined that such an increase is 
appropriate to reflect Congress's view that such conduct contributes to 
the illegal flow of firearms and that such defendants are currently 
under-punished as compared to felons in possession of the trafficked 
weapons. At the same time, by incorporating the elements of the core 
straw purchasing and firearms trafficking statutes, including the new 
offenses (sections 932 and 933), the new enhancement narrowly targets 
such defendants without also impacting other firearms defendants who 
were not intended to receive an increase.
    The amendment also makes two conforming changes. First, to conform 
with statutory changes in 18 U.S.C. 921(a)(33), the amended subsection 
(b)(5)(C) includes a proviso that the enhancement does not apply by 
reason of the transferee's prior misdemeanor crime of domestic violence 
where the transferee's rights were restored. Second, the amendment 
amends the upward departure provision in Application Note 13(B) to 
conform the language with the revised subsection (b)(5).

[[Page 28269]]

Increase Penalties for Organized Crime

    The amendment next amends Sec.  2K2.1 to respond to section 
12004(a)(5) of the Act, which directs the Commission to increase 
penalties for defendants convicted under 18 U.S.C. 932 or Sec.  933 who 
are affiliated with organized crime. The amendment implements this 
portion of the directive by creating a new specific offense 
characteristic providing for a 2-level enhancement under Sec.  
2K2.1(b)(8). Section 2K2.1(b)(8) applies to those defendants who 
receive an increase at subsection (b)(5) and who committed the offense 
in connection with the defendant's participation in an organization of 
five or more persons, knowing, or acting with willful blindness or 
conscious avoidance of knowledge, that the organization has as one of 
its primary purposes the commission of criminal offenses.
    To ensure that a defendant would not receive the enhancement based 
solely on evidence unrelated to the criminal act or mere inclusion in 
gang databases, the enhancement requires that the defendant committed 
the offense ``in connection with'' the defendant's ``participation'' in 
a criminal organization, and that the defendant knew or consciously 
avoided knowledge of the criminal nature of the organization's 
activities. As with other amendments this year, the Commission 
determined that the doctrines of ``willful blindness'' and ``conscious 
avoidance'' are ``well established in criminal law.'' See Glob.-Tech 
Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766, 769 (2011) (noting 
that, while the Courts of Appeals articulate the ``willful blindness'' 
or ``conscious avoidance'' doctrines slightly differently, ``[the 
Courts of Appeals] all appear to agree on two basic requirements: (1) 
The defendant must subjectively believe that there is a high 
probability that a fact exists and (2) the defendant must take 
deliberate actions to avoid learning of that fact.'').
    Finally, the Commission determined that a 2-level increase for 
defendants receiving this enhancement is appropriate because specific 
offense characteristics accounting for other aggravating factors, such 
as the number of firearms and the use or possession of any firearm or 
ammunition in connection with another felony offense, may also apply to 
gang-affiliated defendants in addition to the new enhancement at 
subsection (b)(8). Accordingly, the Commission determined that an 
incremental 2-level enhancement appropriately and adequately 
differentiates straw purchasing and firearms trafficking defendants 
affiliated with organized crime from those who are unaffiliated.

Reduction for Mitigating Circumstances

    The amendment amends Sec.  2K2.1 to respond to section 12004(a)(5) 
of the Act, which directs the Commission to consider an amendment 
accounting for straw purchasers with mitigating circumstances. The 
amendment implements this portion of the directive by creating a new 
specific offense characteristic at Sec.  2K2.1(b)(9) providing a 2-
level reduction available to defendants who receive an increase at 
subsection (b)(5) and satisfy other eligibility criteria. The amendment 
also deletes Application Note 15, which provided for a downward 
departure for certain straw purchasers, because subsection (b)(9) 
provides a reduction with broader criteria.
    Consistent with congressional intent that the reduction apply to 
straw purchasers without significant criminal histories, a defendant 
must have no more than 1 criminal history point to qualify for the 
specific offense characteristic. Also consistent with congressional 
intent that the Commission account for mitigating circumstances, the 
adjustment applies to a defendant motivated by an intimate or familial 
relationship or by threats or fear who was otherwise unlikely to commit 
such an offense, or to a defendant who was unusually vulnerable due to 
physical or mental conditions. The Commission determined that such 
qualifiers appropriately ensure that the reduction is not so broad as 
to include highly culpable defendants, while also ensuring it is not so 
narrow as to exclude the less culpable defendants.
    Similarly, the Commission determined that a 2-level reduction is 
appropriate to ensure that the magnitude of the reduction matches the 
magnitude of the increase provided in subsections (b)(5)(A) and (B) so 
that qualifying defendants do not receive increased penalties as a 
result of the amendment taken as a whole.

Firearms Not Marked With a Serial Number

    Finally, the amendment amends Sec.  2K2.1 to account for privately 
made firearms not marked with a serial number, commonly referred to as 
``ghost guns.'' The amendment provides a 4-level enhancement if the 
defendant knew that the offense involved a firearm not marked with a 
serial number, or the defendant was willfully blind or consciously 
avoided knowing this fact.
    In adding the enhancement, the Commission concluded that there is 
no meaningful distinction between a firearm with an obliterated serial 
number, which has long-triggered a 4-level enhancement under Sec.  
2K2.1(b)(4), and a firearm that is not marked with a serial number. The 
Commission also concluded that firearms not marked with a serial number 
share the traits that led the Commission to implement a 4-level 
enhancement for firearms with altered or obliterated serial numbers: 
``difficulty in tracing firearms with altered or obliterated serial 
numbers, and the increased market for these types of weapons.'' USSG 
App. C, amend. 691 (effective Nov. 1, 2006). Specifically, the 
Commission shared concerns raised by the Department of Justice 
regarding the proliferation of ghost guns, the increased frequency with 
which ghost guns are used in connection with criminal activity, and the 
difficulty in tracing these firearms. Therefore, the Commission 
concluded that the same 4-level enhancement applied in offenses 
involving an altered or obliterated serial number is also appropriate 
for firearms not marked with a serial number.
    The Commission determined that the enhancement should apply only to 
those defendants who knew or consciously avoided knowing that the 
firearm was not marked with a serial number. The amendment also 
specifically excepts firearms manufactured before the effective date of 
the Gun Control Act of 1968, which imposed the requirement that federal 
firearms licensees serialize newly manufactured or imported firearms.
    The amendment also makes conforming changes to Application Note 8.
    7. Amendment: Section 3E1.1(b) is amended by inserting after ``1 
additional level.'' the following: ``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 preparing witnesses for trial, in 
limine motions, proposed voir dire questions and jury instructions, and 
witness and exhibit lists. Preparations for pretrial proceedings (such 
as litigation related to a charging document, discovery motions, and 
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

[[Page 28270]]

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.''.
    Reason for Amendment: This amendment responds to circuit conflicts 
over whether a reduction under subsection (b) of Sec.  3E1.1 
(Acceptance of Responsibility), which requires a motion from the 
government, may be withheld or denied if a defendant moves to suppress 
evidence or raises sentencing challenges. The amendment addresses the 
circuit conflicts by providing a definition of the term ``preparing for 
trial,'' which appears in Sec.  3E1.1(b) and Application Note 6 to 
Sec.  3E1.1. The amendment also deletes hortatory language that the 
Commission previously added to Application Note 6 providing that 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.'' See USSG App. C, amend. 775 
(effective Nov. 1, 2013).
    The amendment defines ``preparing for trial'' as ``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.'' The amendment further provides examples of actions that 
ordinarily indicate preparing for trial (such as preparing witnesses 
for trial, in limine motions, proposed voir dire questions and jury 
instructions, and witnesses and exhibit lists). The amendment further 
provides that preparations for pretrial proceedings (such as litigation 
related to a charging document, discovery motions, and suppression 
motions) ordinarily are not considered preparing for trial, and that 
post-conviction matters (such as sentencing objections, appeal waivers, 
and related issues) are not considered preparing for trial.
    As Justices Sotomayor and Gorsuch observed in 2021, the conflict as 
to whether a suppression hearing is a valid basis for denying a Sec.  
3E1.1(b) reduction is both longstanding and has a potentially 
significant impact on defendants. See Longoria v. United States, 141 S. 
Ct. 978, 979 (2021) (statement of Sotomayor, J., with whom Gorsuch, J. 
joins, respecting the denial of certiorari, ``emphasiz[ing] the need 
for clarification from the Commission'' on this ``important and 
longstanding split among the Courts of Appeals over the proper 
interpretation of Sec.  3E1.1(b)''). Three circuits (the Third, Fifth, 
and Sixth Circuits) have permitted the government to withhold a Sec.  
3E1.1(b) motion based on a suppression motion, while five circuits (the 
First, Second, Ninth, Tenth, and D.C. Circuits) have held that a 
reduction may not be denied based on a suppression motion. Compare 
United States v. Longoria, 958 F.3d 372 (5th Cir. 2020), cert. denied, 
141 S. Ct. 978 (2021), United States v. Collins, 683 F.3d 697 (6th Cir. 
2012), and United States v. Drennon, 516 F.3d 160 (3d Cir. 2008), with 
United States v. Vargas, 961 F.3d 566 (2d Cir. 2020), United States v. 
Price, 409 F.3d 436 (D.C. Cir. 2005), United States v. Marquez, 337 
F.3d 1203 (10th Cir. 2003), United States v. Marroquin, 136 F.3d 220 
(1st Cir. 1998), and United States v. Kimple, 27 F.3d 1409 (9th Cir. 
1994).
    Similarly, the First, Third, Seventh, and Eighth Circuits have held 
that the government may withhold a Sec.  3E1.1(b) motion based on 
sentencing challenges, while the Second and Fifth Circuits have held 
that it may not. Compare United States v. Adair, 38 F.4th 341 (3d Cir. 
2022), United States v. Jordan, 877 F.3d 391 (8th Cir. 2017), United 
States v. Sainz-Preciado, 566 F.3d 708 (7th Cir. 2009), and United 
States v. Beatty, 538 F.3d 8 (1st Cir. 2008), with United States v. 
Castillo, 779 F.3d 318 (5th Cir. 2015), and United States v. Lee, 653 
F.3d 170 (2d Cir. 2011).
    These conflicts have resulted in variation in Sec.  3E1.1(b) motion 
practice across--and even within--judicial districts. In some 
jurisdictions, defendants receive the additional reduction as a matter 
of course, even if they assert pre-trial or post-conviction challenges. 
In others, the Sec.  3E1.1(b) motion has been withheld based on motions 
to suppress, sentencing challenges, or other grounds. Because the 
sentencing impact of losing one additional level under Sec.  3E1.1(b) 
can be significant, the practice in the latter districts has had a 
chilling effect, deterring defendants from pursuing certain evidentiary 
and sentencing challenges.
    The Commission promulgated this amendment to decrease variation 
between jurisdictions in applying Sec.  3E1.1(b). The amendment also 
aims to minimize any deterrent effect on defendants' ability to 
exercise their constitutional rights. See also Sec.  3E1.1, comment. 
(n.2) (allowing consideration for the adjustment where a defendant 
exercises constitutional rights to trial to raise a constitutional 
challenge to a statute or challenge the applicability of a statute to 
the defendant's conduct).
    In promulgating this amendment, the Commission recognizes that 
these circuit conflicts involve guideline and commentary provisions 
that Congress directly amended, and that Congress also directed the 
Commission not to ``alter or repeal'' the congressional amendments. See 
Prosecutorial Remedies and Other Tools to end the Exploitation of 
Children Today Act of 2003, Public Law 108-21, 401(g), (j)(4), 117 
Stat. 650. In recognition of this limitation, the amendment defines a 
term that the congressional amendments did not define--``preparing for 
trial''--without altering or repealing the amendments that Congress 
made.
    8. Amendment:

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

    The Commentary to Sec.  2P1.1 captioned ``Application Notes'' is 
amended in Note 5 by striking ``Sec.  4A1.1(d)'' and inserting ``Sec.  
4A1.1(e)''.
    Section 4A1.1 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.'';
    by redesignating subsection (e) as subsection (d);
    and by inserting at the end the following new subsection (e):
    ``(e) Add 1 point if the defendant (1) receives 7 or more points 
under subsections (a) through (d), and (2) committed the instant 
offense while under any criminal justice sentence, including probation, 
parole, supervised release, imprisonment, work release, or escape 
status.''.
    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

[[Page 28271]]

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;
    in Note 4 (as so redesignated) by striking ``Sec.  4A1.1(e)'' each 
place such term appears and inserting ``Sec.  4A1.1(d)'';
    and by inserting at the end the following new note 5:
    ``5. Sec.  4A1.1(e). One point is added if the defendant (1) 
receives 7 or more points under Sec.  4A1.1(a) through (d), and (2) 
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).''.
    The Commentary to Sec.  4A1.1 captioned ``Background'' is amended 
in the last paragraph by striking ``Section 4A1.1(d) adds two points if 
the defendant was under a criminal justice sentence during any part of 
the instant offense'' and inserting ``Section 4A1.1(e) adds one point 
if the defendant receives 7 or more points under Sec.  4A1.1(a) through 
(d) and was under a criminal justice sentence during any part of the 
instant offense''.
    Section 4A1.2 is amended--
    in subsection (a)(2) by striking ``Sec.  4A1.1(e)'' and inserting 
``Sec.  4A1.1(d)'';
    in subsection (m) by striking ``Sec.  4A1.1(d)'' and inserting 
``Sec.  4A1.1(e)'';
    in subsection (n) by striking ``Sec.  4A1.1(d)'' and inserting 
``Sec.  4A1.1(e)'';
    and in subsection (p) by striking ``Sec.  4A1.1(e)'' and inserting 
``Sec.  4A1.1(d)''.

Part B (Zero-Point Offenders)

Subpart 1 (Adjustment for Certain Zero-Point Offenders)

    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
    (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 receive an adjustment under Sec.  3A1.4 
(Terrorism);
    (3) the defendant did not use violence or credible threats of 
violence in connection with the offense;
    (4) the offense did not result in death or serious bodily injury;
    (5) the instant offense of conviction is not a sex offense;
    (6) the defendant did not personally cause substantial financial 
hardship;
    (7) the defendant did not possess, receive, purchase, transport, 
transfer, sell, or otherwise dispose of a firearm or other dangerous 
weapon (or induce another participant to do so) in connection with the 
offense;
    (8) the instant offense of conviction is not covered by Sec.  2H1.1 
(Offenses Involving Individual Rights);
    (9) the defendant did not receive an adjustment under Sec.  3A1.1 
(Hate Crime Motivation or Vulnerable Victim) or Sec.  3A1.5 (Serious 
Human Rights Offense); and
    (10) the defendant did not receive an adjustment under Sec.  3B1.1 
(Aggravating Role) and was not engaged in a continuing criminal 
enterprise, as defined in 21 U.S.C. 848;
    decrease the offense level determined under Chapters Two and Three 
by 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) `Sex offense' 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 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 subparagraphs (A)(i) through (iv) of this definition.
    (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).

Commentary

    Application Notes:
    1. Application of Subsection (a)(6).--The application of subsection 
(a)(6) is to be determined independently of the application of 
subsection (b)(2) of Sec.  2B1.1 (Theft, Property Destruction, and 
Fraud).
    2. 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.''.

Subpart 2 (Implementation of 28 U.S.C. 994(j))

    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).--'';
    by striking Note 4 as follows:
    ``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.'';
    by redesignating Notes 5 through 10 as Notes 4 through 9, 
respectively;
    by inserting at the beginning of Note 4 (as so redesignated) the 
following new

[[Page 28272]]

heading: ``Application of Subsection (d).--'';
    by inserting at the beginning of Note 5 (as so redesignated) the 
following new heading: ``Application of Subsection (e).--'';
    by inserting at the beginning of Note 6 (as so redesignated) the 
following new heading: ``Departures Based on Specific Treatment 
Purpose.--'';
    by inserting at the beginning of Note 7 (as so redesignated) the 
following new heading: ``Use of Substitutes for Imprisonment.--'';
    by inserting at the beginning of Note 8 (as so redesignated) the 
following new heading: ``Residential Treatment Program.--'';
    by inserting at the beginning of Note 9 (as so redesignated) the 
following new heading: ``Application of Subsection (f).--'';
    and by inserting at the end the following new Note 10:
    ``10. 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) Departure for Cases Where the Applicable Guideline Range 
Overstates the Gravity of the Offense.--A departure, including a 
departure to a sentence other than a sentence of imprisonment, may be 
appropriate if the defendant received an adjustment under Sec.  4C1.1 
(Adjustment for Certain Zero-Point Offenders) and the defendant's 
applicable guideline range overstates the gravity of the offense 
because the offense of conviction is not a crime of violence or an 
otherwise serious offense. See 28 U.S.C. 994(j).''.

Subpart 3 (Additional Changes)

    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:
    ``*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 Notes:
    ``*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 
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 821.)
    **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.)''.
    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''.

Part C (Impact of Simple Possession of Marihuana Offenses)

    The Commentary to Sec.  4A1.3 captioned ``Application Notes'', as 
amended by Part B, Subpart 3 of this amendment, is further amended in 
Note 3 by striking the following:
    ``Downward Departures.--A downward departure from the defendant's 
criminal history category may be warranted if, for example, the 
defendant had two minor misdemeanor convictions close to ten years 
prior to the instant offense and no other evidence of prior criminal 
behavior in the intervening period. A departure below the lower limit 
of the applicable guideline range for Criminal History Category I is 
prohibited under subsection (b)(2)(A), unless otherwise specified.'',
    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), 
unless otherwise specified.''.
    Reason for Amendment: This amendment is the result of several 
Commission studies regarding the nature of the criminal history of 
federal offenders, including analyses of the number and types of prior 
convictions included as criminal history and the ability of the 
criminal history rules to predict an offender's likelihood of rearrest. 
While these studies continue to recognize the close association between 
an offender's criminal history calculation under the guidelines and the 
likelihood of future recidivism, the amendment makes targeted changes 
to reduce the impact of providing additional criminal history points 
for offenders under a criminal justice sentence (commonly known as 
``status points''), to reduce recommended guideline ranges for 
offenders with zero criminal history points under the guidelines 
(``zero-point offenders''), and to recognize the changing legal 
landscape as it pertains to simple possession of marihuana offenses. 
These targeted amendments balance the Commission's mission of 
implementing data-driven sentencing policies with its duty to craft 
penalties that reflect the statutory purposes of sentencing.

Part A--Status Points

    Part A of the amendment addresses ``status points'' for offenders, 
namely the additional criminal history points given to offenders for 
the fact of having committed the instant offense while under a criminal 
justice sentence,

[[Page 28273]]

including probation, parole, supervised release, imprisonment, work 
release, or escape status. The amendment redesignates current 
subsection (d) of Sec.  4A1.1, which addresses ``status points,'' as 
subsection (e) and redesignates current subsection (e), which addresses 
multiple crimes of violence treated as a single sentence, as subsection 
(d). This redesignation is made for ease of application.
    Under the previous ``status points'' provision, two criminal 
history points were 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.'' The amendment limits 
the overall criminal history impact of ``status points'' in two ways. 
First, as revised, the ``status points'' provision under redesignated 
subsection (e) applies only to offenders with more serious criminal 
histories under the guidelines by requiring that an offender have seven 
or more criminal history points under subsections (a) through (d) in 
addition to having been under a criminal justice sentence at the time 
of the instant offense. Offenders with six or fewer criminal history 
points under subsections (a) through (d) will no longer receive 
``status points.'' Second, the amendment also reduces from two points 
to one point the ``status points'' assessed for offenders to whom the 
revised provision applies. Part A of the amendment also makes 
conforming changes to the Commentary to Sec.  4A1.1, Sec.  2P1.1 
(Escape, Instigating or Assisting Escape), and Sec.  4A1.2 (Definitions 
and Instructions for Computing Criminal History).
    As part of its study of criminal history, the Commission found that 
``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 
Criminal History Category as a result of the addition of the ``status 
points.'' The Commission also recently published a series of research 
reports regarding the recidivism rates of federal offenders. See, e.g., 
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. These reports again 
concluded that an offender'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. See U.S. 
Sent'g Comm'n, Revisiting Status Points (2022), available at https://www.ussc.gov/research/research-reports/revisiting-status-points.
    The Commission's action to limit the impact of ``status points'' 
builds upon its tradition of data-driven evolution of the guidelines. 
As described in the Introduction to Chapter Four, the original 
Commission envisioned status points as ``consistent with the extant 
empirical research assessing correlates of recidivism and patterns of 
career criminal behavior'' and therefore envisioned ``status points'' 
as being reflective of, among other sentencing goals, the increased 
likelihood of future recidivism. See USSG Ch.4, Pt.A, intro. comment. 
The original Commission also explained, however, that it would ``review 
additional data insofar as they become available in the future.'' The 
Commission's recent research suggests that ``status points'' improve 
the predictive value of the criminal history score less than the 
original Commission may have expected, suggesting that the treatment of 
``status points'' under Chapter Four should be refined.
    Accordingly, the Commission determined that it was appropriate to 
address several concerns regarding the scope and impact of status 
points. In taking these steps, the Commission observed that the 
operation of the Guidelines Manual separately accounts for consecutive 
punishment imposed upon revocations of supervised release, a likely 
occurrence if an offender was under a criminal justice sentence during 
the commission of another offense. The Commission further recognized 
that it is also possible that an offender's criminal history score 
would be independently increased as the result of additional time 
imposed as the result of a revocation of probation or supervised 
release for the offense that also results in the addition of status 
points.
    At the same time, by retaining ``status points'' for those 
offenders in higher criminal history categories, the Commission 
continues to recognize that ``status points,'' like the other criminal 
history provisions in Chapter Four, reflect and serve multiple purposes 
of sentencing, including the offender's perceived lack of respect for 
the law, as reflected both in the offender's overall criminal history 
and the fact that the offender has reoffended while under a criminal 
justice sentence ordered by a court. See 18 U.S.C. 3553(a)(2)(A)-(C).
    The Commission concluded that accounting for status on a more 
limited basis continues to serve the broader purposes of sentencing 
while also addressing other concerns raised regarding the impact of 
status points.

Part B--Zero-Point Offenders

    Part B of the amendment includes three subparts making changes 
pertaining to offenders who did not receive any criminal history points 
from Chapter Four, Part A. Subpart 1 provides for an adjustment for 
certain offenders with zero criminal history points. Subpart 2 revises 
Sec.  5C1.1 (Imposition of a Term of Imprisonment) to implement the 
congressional directive at 28 U.S.C. 994(j). Finally, Subpart 3 makes 
other conforming changes.

Subpart 1--Adjustment for Certain Zero-Point Offenders

    Subpart 1 of Part B of the amendment creates a new Chapter Four 
guideline at Sec.  4C1.1 (Adjustment for Certain Zero-Point Offenders). 
New Sec.  4C1.1 provides a decrease of two levels from the offense 
level determined under Chapters Two and Three for offenders who did not 
receive any criminal history points under Chapter Four, Part A and 
whose instant offense did not involve specified aggravating factors. In 
establishing new Sec.  4C1.1, the Commission was informed by its 
studies of recidivism among federal offenders, as well as other 
extensive data analyses of offenders with no criminal history points, 
and public comment. The Sentencing Table in Chapter Five, Part A is 
divided into six criminal history categories, from I (lowest) to VI 
(highest). Criminal History Category I includes offenders with zero 
criminal history points and those with one criminal history point. 
Recidivism data analyzed by the Commission shows, however, that 
offenders with zero criminal history points have considerably lower 
recidivism rates than other offenders, including offenders 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 promulgating this change, the Commission also considered the 
rates of departures and variances in cases involving offenders with no 
criminal history points. The Commission has

[[Page 28274]]

long viewed the rates and extents of departures and variances from the 
applicable guideline ranges as a feedback mechanism from the courts 
that a particular area of the guidelines may warrant further review and 
possible amendment. In fiscal year 2021, 39.2 percent of offenders with 
zero criminal history points received a sentence within the guidelines 
range; by comparison, 47.4 percent of offenders with one criminal 
history point were sentenced within the guideline range. The Commission 
determined that the departure and variance rates for zero-point 
offenders, coupled with its recidivism data, warranted action.
    The amendment applies to offenders with no criminal history points, 
including (1) offenders with no prior convictions; (2) offenders who 
have prior convictions that are not counted because those convictions 
were not within the time limits set forth in subsection (d) and (e) of 
Sec.  4A1.2 (Definitions and Instructions for Computing Criminal 
History); and (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). In 
adopting this definition of ``zero-point offenders,'' the Commission 
opted to hew to the long-standing and carefully crafted criminal 
history rules set forth in Chapter Four, regarding which prior 
convictions count for criminal history purposes and which do not. The 
Commission also observed that attempts to exclude offenders with 
certain prior convictions could lead to increased complexity and 
litigation and require the additional practical step of investigating 
prior unscorable offenses for which records may not be readily 
available.
    While determining that a reduction is appropriate for some 
offenders with zero criminal history points, the Commission also 
identified circumstances in which zero-point offenders are 
appropriately excluded from eligibility in light of the seriousness of 
the instant offense of conviction or the existence of aggravating 
factors in the instant offense (e.g., where the offender used violence 
or credible threats of violence in connection with the offense or where 
the instant offense of conviction was a ``sex offense''). The 
exclusionary criteria identified by the Commission were again informed 
by extensive data analyses and public comment. The Commission was also 
informed by existing legislation, including the congressionally 
established criteria for the statutory safety valve at 18 U.S.C. 
3553(f) and the recent firearms legislation set forth in the Bipartisan 
Safer Communities Act.

Subpart 2--Implementation of 28 U.S.C. 994(j)

    Subpart 2 of Part B of the amendment revises the Commentary to 
Sec.  5C1.1 (Imposition of a Term of Imprisonment) that addresses 
``nonviolent first offenders.'' New Application Note 10(A) provides 
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 10(B) adds a corresponding departure provision 
providing that a departure, including a departure to a sentence other 
than a sentence of imprisonment, may be appropriate if the offender 
received an adjustment under new Sec.  4C1.1 and the applicable 
guideline range overstates the gravity of the offense because the 
offense of conviction is not a crime of violence or an otherwise 
serious offense.
    The changes to the Commentary to Sec.  5C1.1 respond to Congress's 
directive to the Commission at 28 U.S.C. 994(j), directing 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. The Commission 
determined that the revised commentary serves Congress's intent in 
promulgating section 994(j) while providing appropriate limitations and 
guidance through reliance on the criteria set forth in new Sec.  4C1.1 
and the specific statutory language set forth in section 994(j).

Subpart 3--Additional Changes

    Subpart 3 of Part B of the amendment makes a corresponding change 
to 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.'' The amendment also revises an explanatory note in Chapter 
One, Part A, Subpart 1(4)(d) (Probation and Split Sentences) to detail 
amendments to the Guidelines Manual related to the implementation of 28 
U.S.C. 994(j), first offenders, and ``zero-point offenders.''

Part C--Impact of Simple Possession of Marihuana Offenses

    Part C of the amendment revises 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 
provides 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. Most commenters, including the Department of 
Justice, supported this change. See Letter from Jonathan J. Wroblewski, 
Dir., Crim. Div., U.S. Dep't of Just., to Hon. Carlton W. Reeves, 
Chair, U.S. Sent'g Comm'n (Feb. 27, 2023), in U.S. Sent'g Comm'n, 2022-
2023 Amendment Cycle Proposed Amendments/Public Comment (2023); see 
also U.S. Sent'g Comm'n, 2022-2023 Amendment Cycle Proposed Amendments/
Public Comment (2023) (providing numerous public comment supporting the 
amendment).
    The Commission also relied upon its recently published 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. In that study, the Commission found 
that 4,405 federal offenders (8.0%) received criminal history points 
under the federal sentencing guidelines for prior marihuana possession 
sentences in fiscal year 2021. Most such prior sentences were for state 
court convictions resulting in less than 60 days in prison or non-
custodial sentences. The Commission also found informative that ten 
percent (10.2%) of these 4,405 offenders had no other criminal history 
points, and that for 40 percent (40.1%) of the 4,405 offenders (1,765), 
the criminal history points for prior marihuana possession sentences 
resulted in a higher Criminal History Category.
    9. Amendment: 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

[[Page 28275]]

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.''.
    Section 4B1.2(a) is amended--
    by inserting at the beginning the following new heading ``Crime of 
Violence.--'';
    and in paragraph (1) by striking ``another,'' and inserting 
``another;''.
    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.--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 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 Sec.  
70506(b).''.
    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 inserting at the end the following two 
new subsections (d) and (e):
    ``(d) Inchoate Offenses Included.--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.
    (e) 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.
    (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 `Crime of Violence' and `Controlled 
Substance Offense'.--'';
    by striking the first three paragraphs as follows:
    `` `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.'';
    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).''.
    Reason for Amendment: This amendment is a result of the 
Commission's work on Sec.  4B1.2 (Definitions of Terms Used in Section 
4B1.1) regarding several application issues that have arisen in the 
context of the career offender guideline. As part of this study, the 
Commission considered varying case law interpreting certain guideline 
definitions and commentary to the guideline. Informed by the case law, 
public comment and relevant sentencing data, this amendment 
specifically addresses application issues regarding the meaning of 
``robbery'' and ``extortion'' and the treatment of inchoate offenses. 
The amendment also makes necessary changes to further implement the 
congressional directive at 28 U.S.C. 994(h).
    The amendment makes several changes to address a circuit conflict 
regarding the authoritative weight afforded to certain commentary to 
Sec.  4B1.2. The commentary to Sec.  4B1.2 prior to the amendment 
provided that the definitions of ``crime of violence'' and ``controlled 
substance offense'' include the offenses of aiding and abetting, 
conspiring, and attempting to commit such offenses. Although most 
circuits had previously held that this commentary was authoritative 
under Stinson v. United States, 508 U.S. 36

[[Page 28276]]

(1993), several courts have now concluded that the guideline definition 
of ``controlled substance offense'' does not include inchoate offenses 
because such offenses are not expressly included in the guideline text. 
See United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc); 
United States v. Campbell, 22 F.4th 438 (4th Cir. 2022); United States 
v. Nasir, 17 F.4th 459 (3d Cir. 2021) (en banc); United States v. 
Havis, 927 F.3d 382 (6th Cir. 2019) (en banc); United States v. 
Winstead, 890 F.3d 1082 (D.C. Cir. 2018). Several courts held that the 
Commission exceeded its authority under Stinson when it attempted to 
incorporate inchoate offenses into Sec.  4B1.2(b)'s definition through 
the commentary, finding that the commentary can only interpret or 
explain the guideline, it cannot expand its scope by adding qualifying 
offenses. See, e.g., Havis, 927 F.3d at 385-87. More recently, courts 
have relied on Kisor v. Wilkie, 139 S. Ct. 2400 (2022), to hold that 
guideline commentary should not be afforded deference unless the 
guideline text is genuinely ambiguous. See, e.g., Dupree, 57 F.4th at 
1275. Applying the Kisor holding to the guidelines, courts have 
concluded that the plain language definition of ``controlled substance 
offense'' in Sec.  4B1.2 unambiguously excludes inchoate offenses. 
Similarly, courts have held that ``crime of violence'' excludes 
conspiracies because the Sec.  4B1.2 commentary does not warrant Kisor 
deference. See, e.g., United States v. Abreu, 32 F.4th 271, 277-78 (3d 
Cir. 2022).
    The amendment addresses this circuit conflict by moving, without 
change, the commentary including certain inchoate and accessory 
offenses in the definitions of ``crime of violence'' and ``controlled 
substance offense'' to the text of the guideline. While not the subject 
of the circuit conflict, the amendment also moves the definitions of 
enumerated offenses (i.e., ``forcible sex offense'' and ``extortion'') 
and ``prior felony conviction'' from the commentary to a new subsection 
(e) in the guideline to avoid similar challenges to their 
applicability.
    The amendment next addresses a concern that Hobbs Act robbery 
offenses no longer qualify as ``crimes of violence'' under Sec.  4B1.2. 
In 2016, the Commission amended Sec.  4B1.2 to, among other things, 
delete the ``residual clause'' and revise the ``enumerated clause'' by 
moving enumerated offenses that were previously listed in the 
commentary to the guideline itself. Although the guideline generally 
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.'' 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 threat ``of physical injury,'' as opposed to non-
violent threats such as injury to reputation. As such, 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.''
    After the 2016 amendment, every Court of Appeals addressing the 
issue under the guidelines has held that Hobbs Act robbery is not a 
``crime of violence'' under Sec.  4B1.2, reasoning that neither generic 
robbery nor the guidelines definition of extortion encompass threats 
against property while the Hobbs Act defines ``robbery'' as, among 
other things, ``the unlawful taking or obtaining of personal property . 
. . by means of actual or threatened force, or violence, or fear of 
injury, immediate or future, to his person or property . . . .'' See 18 
U.S.C. 1951(b)(1) (emphasis added); 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. O'Connor, 874 F.3d 1147 (10th Cir. 2017).
    The amendment amends Sec.  4B1.2 to add to the new subsection (e) a 
definition of ``robbery'' that mirrors the ``robbery'' definition at 18 
U.S.C. 1951(b)(1) and makes a conforming change to Sec.  2L1.2 (Illegal 
Reentry), which also includes robbery as an enumerated offense. The 
Commission views the recent decisions holding that Hobbs Act robbery is 
not a crime of violence under the guidelines as an unintended 
consequence of the 2016 amendment to the career offender guideline 
meant to remove threats to reputation. In addition, the Commission 
conducted an analysis of recent cases and found that the Hobbs Act 
robberies overwhelmingly involved violence.
    The amendment clarifies that ``actual or threatened force'' for 
purposes of the new ``robbery'' definition is ``force sufficient to 
overcome a victim's resistance.'' The Commission concludes that such 
definition, relying on the Supreme Court's decision in Stokeling v. 
United States, 139 S. Ct. 544 (2019), would eliminate potential 
litigation over the meaning of actual or threatened force in this 
context and is consistent with the level of force necessary for a 
robbery under the force clause.
    Finally, the amendment revises the definition of ``controlled 
substance offense'' in Sec.  4B1.2(b) to include ``an offense described 
in 46 U.S.C. 70503(a) or Sec.  70506(b).'' The directive at 28 U.S.C. 
994(h) instructs 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 have previously been convicted of two or more felonies 
that are, among other things, ``an offense described in . . . chapter 
705 of title 46.'' See 28 U.S.C. 994(h). In 2016, Congress enacted the 
Coast Guard Authorization Act of 2015, Public Law 114-120 (2016), which 
amended Chapter 705 of Title 46 by adding two new offenses to section 
70503(a), in subparagraphs (2) and (3). Following this statutory 
change, these two new offenses are not covered by the pre-amendment 
definition of ``controlled substance offense'' in Sec.  4B1.2 as 
required by the directive.
    10. 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;''.
    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

[[Page 28277]]

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).''.
    Reason for Amendment: This two-part amendment responds to 
miscellaneous guideline application issues.
    First, the amendment revises subsection (d) of Sec.  3D1.2 
(Grouping of Closely Related Counts) to provide that multiple counts 
involving more than one victim sentenced under 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) 
are explicitly excluded from grouping under Sec.  3D1.2(d). Subsection 
3D1.2(d) provides that certain guidelines are excluded from the 
operation of the grouping rules in Chapter Three, Part D (Multiple 
Counts). Among the guidelines specifically excluded under Sec.  
3D1.2(d) is Sec.  2G1.1 (Promoting a Commercial Sex Act or Prohibited 
Sexual Conduct with an Individual Other than a Minor). When Sec.  2G1.3 
was promulgated in 2004, some offenses that were originally referenced 
to Sec.  2G1.1 were moved to the new Sec.  2G1.3, but Sec.  2G1.3 was 
not added to the list of excluded guidelines at Sec.  3D1.2(d). See 
USSG App. C, amend. 664 (effective date: Nov. 1, 2004). The amendment 
corrects that oversight and treats Sec.  2G1.3 similarly to Sec.  
2G1.1.
    Second, the amendment updates the Commentary to Sec.  5F1.7 (Shock 
Incarceration Program (Policy Statement)) to reflect that the Bureau of 
Prisons (BOP) no longer operates a shock incarceration program. The 
Commentary to Sec.  5F1.7 describes the authority of the BOP to operate 
a shock incarceration program and the procedures that the BOP 
established in 1990 regarding operation of such a program. However, the 
BOP terminated its shock incarceration program and removed the rules 
governing its operation in 2008. The amendment updates the Commentary 
to Sec.  5F1.7 to reflect that shock incarceration is no longer a 
potential sentencing option, foreclosing any potential confusion on its 
current availability.
    11. Amendment: 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.  1B1.11 captioned ``Background'' is amended 
by striking ``133 S. Ct. 2072, 2078'' and inserting ``569 U.S. 530, 
533''.
    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),''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended--
    in Note 8(A) by striking ``the statute (21 U.S.C. 841(b)(1)), as 
the primary basis'' and inserting ``the statute (21 U.S.C. 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

[[Page 28278]]

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
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'';

[[Page 28279]]

    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 in the Typical Weight Per Unit (Dose, Pill, or Capsule) 
Table, 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) 20 gm
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).''.
    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.  2K2.4 captioned ``Statutory Provisions'' is 
amended by striking ``Sec. Sec.  844(h)'' and inserting ``Sec. Sec.  
844(h), (o)''.
    The Commentary to Sec.  2M1.1 captioned ``Background'' is amended 
by striking ``this Part'' and inserting ``this part''.
    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.  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''.
    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. 
Sec.  175b(d)(2).'',
    and by striking the following paragraph:
    `` `Vector' has the meaning given that term in 18 U.S.C. Sec.  
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'';
    and 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''.
    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''.
    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 4'' 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 by striking 
``The Victims'' and inserting ``the Victims''.

[[Page 28280]]

    The Commentary to Sec.  5E1.4 captioned ``Background'' is amended 
by striking ``Titles'' and inserting ``titles''.
    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''.
    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.  8A1.2 captioned ``Application Notes'' is 
amended in Note 3(G) by striking '' `Prior criminal adjudication' 
means'' and inserting '' `Criminal Adjudication' means''.
    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''.
    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''.
    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''.
    Appendix A (Statutory Index) is amended--
    by striking the following line reference:
    ``18 U.S.C. Sec.  876 2A4.2, 2A6.1, 2B3.2, 2B3.3'';
    by inserting before the line referenced to 18 U.S.C. 877 the 
following new line references:

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

    in the line referenced to 25 U.S.C. 450d by striking ``Sec.  450d'' 
and inserting ``Sec.  5306'';
    by striking the following line references:

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

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

    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 by inserting before the line referenced to 52 U.S.C. 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''.

    Reason for Amendment: This amendment makes technical, stylistic, 
and other non-substantive changes to the Guidelines Manual.
    First, the amendment makes clerical changes to correct 
typographical errors in the following guidelines and commentary: 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.  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).
    Second, the amendment makes 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 Term of Imprisonment or 
Anticipated State Term of Imprisonment), to update citations of Supreme 
Court cases. In addition, the amendment makes technical changes to (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.
    Third, the amendment makes technical changes to the Commentary to 
Sec. Sec.  2A4.2 (Demanding or Receiving Ransom Money), 2A6.1 
(Threatening or

[[Page 28281]]

Harassing Communications; Hoaxes; False Liens), and 2B3.2 (Extortion by 
Force or Threat of Injury or Serious Damage), and to Appendix A 
(Statutory Index), to provide references to the specific applicable 
provisions of 18 U.S.C. 876 (Mailing threatening communications).
    Fourth, the amendment makes certain stylistic and technical changes 
to the Commentary to Sec.  2D1.1 (Unlawful Manufacturing, Importing, 
Exporting, or Trafficking). It revises 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. 
The amendment also makes 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. In addition, the amendment makes clerical changes throughout 
the Commentary to correct certain typographical errors. It also amends 
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.''
    Fifth, the amendment makes clerical changes to reflect the 
editorial reclassification of certain sections of 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, the amendment makes 
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 of the United States Code to four new chapters in title 25 to 
improve the organization of the title. To reflect these changes, the 
amendment makes further changes to Appendix A.
    Sixth, the amendment makes technical changes to the commentary of 
several guidelines in Chapter Eight (Sentencing of Organizations). It 
replaces 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. The amendment also makes 
conforming changes to the Commentary to Sec.  8C2.5 (Culpability Score) 
to account for the new term. In addition, the amendment revises 
Application Note 1 of Sec.  8C3.2 (Payment of the Fine--Organizations) 
to reflect the current language of subsection (d) of 18 U.S.C. 3572 
(Imposition of a sentence of fine and related matters), 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.
    Finally, the amendment makes clerical changes to provide updated 
references to certain sections of the United States Code that were 
redesignated by legislation. The Frank LoBiondo Coast Guard 
Authorization Act of 2018, Pub. L. 115-282 (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 includes references to Chapter Two guidelines 
for both former 33 U.S.C. 1227(b) and 1232(b). The amendment revises 
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.

(2) Request for Comment on Parts A and B Of Amendment 8, Relating to 
``STATUS POINTS'' and Certain ``Zero-Point''Offenders

    On April 27, 2023, the Commission submitted to the Congress 
amendments to the sentencing guidelines, policy statements, official 
commentary, and Statutory Index, which become effective on November 1, 
2023, unless Congress acts to the contrary. Such amendments and the 
reason for each amendment are included in this notice.
    Section 3582(c)(2) of title 18, United States Code, provides that 
``in the case of a defendant who has been sentenced to a term of 
imprisonment based on a sentencing range that has subsequently been 
lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon 
motion of the defendant or the Director of the Bureau of Prisons, or on 
its own motion, the court may reduce the term of imprisonment, after 
considering the factors set forth in section 3553(a) to the extent that 
they are applicable, if such a reduction is consistent with applicable 
policy statements issued by the Sentencing Commission.'' Pursuant to 28 
U.S.C. 994(u), ``[i]f the Commission reduces the term of imprisonment 
recommended in the guidelines applicable to a particular offense or 
category of offenses, it shall specify in what circumstances and by 
what amount the sentences of prisoners serving terms of imprisonment 
for the offense may be reduced.'' The Commission lists in subsection 
(d) of Sec.  1B1.10 (Reduction in Term of Imprisonment as a Result of 
Amended Guideline Range (Policy Statement)) the specific guideline 
amendments that the court may apply retroactively under 18 U.S.C. 
3582(c)(2).
    Amendment 8, pertaining to criminal history, has the effect of 
lowering guideline ranges. The Commission intends to consider whether, 
pursuant to 18 U.S.C. 3582(c)(2) and 28 U.S.C. 994(u), Parts A and B of 
this amendment, relating to the impact of ``status points'' at Sec.  
4A1.1 (Criminal History Category) and offenders with zero criminal 
history points at new Sec.  4C1.1 (Adjustment for Certain Zero-Point 
Offenders), should be included in Sec.  1B1.10(d) as an amendment that 
may be applied retroactively to previously sentenced defendants. In 
considering whether to do so, the Commission will consider, among other 
things, a retroactivity impact analysis and public comment. 
Accordingly, the Commission seeks public comment on whether it should 
make Parts A and B of Amendment 8 available for retroactive 
application. To help inform public comment, the retroactivity impact 
analysis will be made available to the public as soon as practicable.
    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 Commission seeks comment on whether it should list Parts A and 
B of Amendment 8, addressing the impact of ``status points'' at Sec.  
4A1.1 and offenders

[[Page 28282]]

with zero criminal history points at new Sec.  4C1.1, in Sec.  
1B1.10(d) as changes that may be applied retroactively to previously 
sentenced defendants. For each of these parts, the Commission requests 
comment on whether that part should be listed in Sec.  1B1.10(d) as an 
amendment that may be applied retroactively.
    If the Commission does list one or both such parts of the amendment 
in Sec.  1B1.10(d) as an amendment that may be applied retroactively to 
previously sentenced defendants, should the Commission provide further 
guidance or limitations regarding the circumstances in which, and the 
amount by which, sentences may be reduced?

[FR Doc. 2023-09332 Filed 5-2-23; 8:45 am]
BILLING CODE 2210-40-P