Sentencing Guidelines for United States Courts, 19798-19856 [2025-07785]

Agencies

• United States Sentencing Commission

[Federal Register Volume 90, Number 89 (Friday, May 9, 2025)]
[Notices]
[Pages 19798-19856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-07785]



[[Page 19797]]

Vol. 90

Friday,

No. 89

May 9, 2025

Part II





United States Sentencing Commission





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Sentencing Guidelines for United States Courts; Notice

Federal Register / Vol. 90 , No. 89 / Friday, May 9, 2025 / Notices

[[Page 19798]]


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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, 2025, 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, and commentary; and the Commission 
requests comment regarding whether it should include in the Guidelines 
Manual as changes that may be applied retroactively to previously 
sentenced defendants any or all of the following amendments: Parts A 
and B of Amendment 1; and Subparts 1 and 2 of Part A of Amendment 2. 
This notice sets forth the text of the amendments and the reason for 
each amendment, and the request for comment regarding possible 
retroactive application of the amendments listed above.

DATES: 
    Effective Date of Amendments. The Commission has specified an 
effective date of November 1, 2025, for the amendments set forth in 
this notice.
    Written Public Comment. Written public comment regarding possible 
retroactive application of Parts A and B of Amendment 1, and Subparts 1 
and 2 of Part A of Amendment 2, should be received by the Commission 
not later than June 2, 2025. Any public comment received after the 
close of the comment period may not be considered.

ADDRESSES: There are two methods for submitting written 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, and 
Official Commentary

    Pursuant to its authority under 28 U.S.C. 994(p), the Commission 
has promulgated amendments to the sentencing guidelines, policy 
statements, and commentary. Notices of proposed amendments were 
published in the Federal Register on January 2, 2025 (see 90 FR 128) 
and February 4, 2025 (see 90 FR 8968). The Commission held public 
hearings on the proposed amendments in Washington, DC, on February 12, 
2025, and March 12-13, 2025. On April 30, 2025, the Commission 
submitted the promulgated amendments to the Congress and specified an 
effective date of November 1, 2025.
    The text of the amendments to the sentencing guidelines, policy 
statements, and commentary, 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 Possible Retroactive Application of Parts A 
and B of Amendment 1, and Subparts 1 and 2 of Part A of Amendment 2

    This notice sets forth a request for comment regarding whether the 
Commission should list 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 any or all of the following subparts or 
parts of these amendments: Part A (Circuit Conflict Relating to 
``Physically Restrained'' Enhancements) and Part B (Circuit Conflict 
Relating to the Meaning of ``Intervening Arrest'' in Sec.  4A1.2(a)(2)) 
of Amendment 1, and Subpart 1 (Mitigating Role Provisions at Sec.  
2D1.1(a)(5)) and Subpart 2 (Special Instruction Relating to Sec.  
3B1.2) of Part A of Amendment 2.
    The Background Commentary to Sec.  1B1.10 lists the purpose of the 
amendment, the magnitude of the change in the guideline range made by 
the amendment, and the difficulty of applying the amendment 
retroactively to determine an amended guideline range under Sec.  
1B1.10(b) as among the factors the Commission considers in selecting 
the amendments included in Sec.  1B1.10(d). To the extent practicable, 
public comment should address each of these factors.
    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, and 
Official Commentary

1. Amendment

Part A (Circuit Conflict Concerning ``Physically Restrained'' 
Enhancements)

    Section 2B3.1(b)(2)(B) is amended by striking ``if a firearm was 
otherwise used'' and inserting ``if a firearm was used to convey a 
specific (not general) threat of harm (e.g., pointing the firearm at a 
specific victim or victims; directing the movement of a specific victim 
or victims with the firearm) or to make physical contact with a victim 
(e.g., pistol whip; firearm placed against victim's body)''.
    Section 2B3.1(b)(4)(B) is amended by striking ``if any person was 
physically restrained'' and inserting ``if any person's freedom of 
movement was restricted through physical contact or confinement, such 
as by being tied, bound, or locked up,''.
    The Commentary to Sec.  2B3.1 captioned ``Application Notes'' is 
amended in Note 1 by striking '' `abducted,' and `physically 
restrained' are defined'' and inserting ``and `abducted' have the 
meaning given such terms''.
    The Commentary to Sec.  2B3.1 captioned ``Background'' is amended 
by striking ``was physically restrained by being tied, bound, or lock 
up'' and inserting ``a victim's freedom of movement was restricted 
through physical contact or confinement, such as by being tied, bound, 
or locked up''.
    Section 2B3.2(b)(3)(A)(ii) is amended by striking ``if a firearm 
was otherwise used'' and inserting ``if a firearm was used to convey a 
specific (not general) threat of harm (e.g., pointing the firearm at a 
specific victim or victims; directing

[[Page 19799]]

the movement of a specific victim or victims with the firearm) or to 
make physical contact with a victim (e.g., pistol whip; firearm placed 
against victim's body)''.
    Section 2B3.2(b)(5)(B) is amended by striking ``if any person was 
physically restrained'' and inserting ``if any person's freedom of 
movement was restricted through physical contact or confinement, such 
as by being tied, bound, or locked up,''.
    The Commentary to Sec.  2B3.2 captioned ``Application Notes'' is 
amended in Note 1 by striking '' `physically restrained,' ''.
    Section 2E2.1(b)(1)(B) is amended by striking ``if a dangerous 
weapon (including a firearm) was otherwise used'' and inserting ``if a 
dangerous weapon (including a firearm) was used to convey a specific 
(not general) threat of harm (e.g., pointing the weapon at a specific 
victim or victims; directing the movement of a specific victim or 
victims with the weapon) or to make physical contact with a victim 
(e.g., pistol whip; weapon placed against victim's body)''.
    Section 2E2.1(b)(3)(B) is amended by striking ``if any person was 
physically restrained'' and inserting ``if any person's freedom of 
movement was restricted through physical contact or confinement, such 
as by being tied, bound, or locked up,''.
    The Commentary to Sec.  2E2.1 captioned ``Application Notes'' is 
amended in Note 1 by striking `` `otherwise used,' ''; and by striking 
`` `abducted,' and `physically restrained' '' and inserting ``and 
`abducted' ''.
    The Commentary to Sec.  2X1.1 captioned ``Application Notes'' is 
amended in Note 2 by striking ``the defendants actually intended to 
physically restrain the teller, the specific offense characteristic for 
physical restraint would be added'' and inserting ``the defendants 
actually intended to restrict the teller's freedom of movement through 
physical contact or confinement, the specific offense characteristic 
for such restriction would be added''.

Part B (Circuit Conflict Concerning Meaning of ``Intervening Arrest'' 
in Sec.  4A1.2(a)(2))

    Section 4A1.2(a)(2) is amended in the paragraph that begins ``If 
the defendant'' by inserting after ``the second offense).'' the 
following: ``For purposes of this provision, a traffic stop is not an 
intervening arrest.''.
    Reason for Amendment: This two-part amendment addresses circuit 
conflicts involving Sec.  2B3.1 (Robbery) and Sec.  4A1.2 (Definitions 
and Instructions for Computing Criminal History).
Part A--Circuit Conflict Concerning ``Physically Restrained'' 
Enhancements
    Part A of the amendment responds to a circuit conflict over whether 
Sec.  2B3.1(b)(4)(B)--which provides for a 2-level increase ``if any 
person was physically restrained to facilitate commission of the 
offense or to facilitate escape''--applies where a robbery victim is 
restricted from moving at gunpoint but is not otherwise immobilized 
through measures like those in the definition of ``physically 
restrained'' in Application Note 1 to Sec.  1B1.1 (Application 
Instructions) (i.e., ``by being tied, bound, or locked up'').
    The Second, Third, Fifth, Seventh, and Ninth Circuits have largely 
agreed that the psychological coercion of pointing a gun at a victim, 
without more, does not qualify, and that a restraint must be 
``physical'' for the enhancement to apply. See, e.g., United States v. 
Anglin, 169 F.3d 154, 164 (2d Cir. 1999); United States v. Bell, 947 
F.3d 49, 57 (3d Cir. 2020); United States v. Garcia, 857 F.3d 708, 713-
14 (5thCir. 2017); United States v. Herman, 930 F.3d 872, 877 (7thCir. 
2019); United States v. Parker, 241 F.3d 1114, 1118-19 (9th Cir. 2001). 
By contrast, the First, Fourth, Sixth, Tenth, and Eleventh Circuits 
have held that restricting a victim's movement at gunpoint suffices for 
the enhancement. See, e.g., United States v. Wallace, 461 F.3d 15, 34-
35 (1st Cir. 2006); United States v. Dimache, 665 F.3d 603, 608 (4th 
Cir. 2011); United States v. Howell, 17F.4th 673, 692 (6th Cir. 2021); 
United States v. Miera, 539 F.3d 1232, 1235-36 (10th Cir. 2008); United 
States v. Deleon, 116 F.4th 1260, 1264 (11th Cir. 2024).
    The Commission received public comment and testimony indicating 
that the conduct at issue in the circuit split (pointing a gun at a 
victim during a robbery) is treated differently not only under Sec.  
2B3.1(b)(4)(B) but also under the separate Sec.  2B3.1(b)(2) 
enhancement. Section 2B3.1(b)(2) provides for tiered offense level 
increases for threats and weapon involvement in a robbery, including a 
5-level enhancement ``if a firearm was brandished or possessed'' and a 
6-level enhancement ``if a firearm was otherwise used.'' The terms 
``brandished'' and ``otherwise used'' are defined in Application Note 1 
to Sec.  1B1.1.
    Circuits that have considered the difference between these 
definitions generally agree that while ``brandished'' covers the 
general display of a weapon, a firearm is ``otherwise used'' where it 
is employed for a specific threat. See, e.g., United States v. Jordan, 
945 F.3d 245, 264 (5th Cir. 2019) (``While brandishing `can mean as 
little as displaying part of a firearm or making the presence of the 
firearm known in order to intimidate,' otherwise using a weapon 
includes pointing the weapon at an individual in a specifically 
threatening manner.'' (citation omitted)); United States v. Johnson, 
803 F.3d 610, 616 (11th Cir. 2015) (``[T]he `otherwise use[ ]' of a 
firearm includes the use of the firearm to make an explicit or implicit 
threat against a specific person.'').
    Commission data shows, however, that pointing a gun at a victim 
during a robbery has resulted in the 5-level ``brandished'' increase in 
some cases and the 6-level ``otherwise used'' increase in others. The 
combination of these differing applications of the firearms enhancement 
and the conflict among the circuits regarding the 2-level ``physically 
restrained'' enhancement has led to disparities: the total resulting 
enhancements have ranged from five to eight levels for pointing a gun 
at a victim during a robbery.
    To promote uniformity and consistency in guideline application, 
Part A of the amendment generally adopts the approach of the Second, 
Third, Fifth, Seventh, and Ninth Circuits that Sec.  2B3.1(b)(4)(B) 
does not apply solely based on the coercion of using a firearm to 
restrict a victim's movement. Rather, the increase applies only ``if 
any person's freedom of movement was restricted through physical 
contact or confinement, such as by being tied, bound, or locked up, to 
facilitate commission of the offense or to facilitate escape.''
    Part A of the amendment also revises Sec.  2B3.1(b)(2) to ensure 
that use of a firearm during a robbery is accounted for under this 
enhancement with more uniformity. It amends Sec.  2B3.1(b)(2)(B) to 
state that the 6-level increase applies ``if a firearm was used to 
convey a specific (not general) threat of harm (e.g., pointing the 
firearm at a specific victim or victims; directing the movement of a 
specific victim or victims with the firearm) or to make physical 
contact with a victim (e.g., pistol whip; firearm placed against 
victim's body).''
    To further promote consistency in application of offense guidelines 
with similar specific offense characteristics, the amendment makes 
parallel changes to two Chapter Two guidelines with ``physically 
restrained'' and ``otherwise used'' enhancements: Sec. Sec.  2B3.2 
(Extortion by Force or Threat of Injury or Serious Damage) and 2E2.1 
(Making or Financing an Extortionate Extension of Credit; Collecting an 
Extension of

[[Page 19800]]

Credit by Extortionate Means). The amendment does not make parallel 
changes to Sec.  3A1.3 (Restraint of Victim), which also uses the term 
``physically restrained'' but differs from Sec.  2B3.1(b)(4)(B) in 
other respects. No inferences as to the scope of that Chapter Three 
adjustment should be drawn from this amendment.
Part B--Circuit Conflict Concerning Meaning of ``Intervening Arrest'' 
in Sec.  4A1.2(a)(2)
    Part B of the amendment addresses a circuit conflict over whether a 
traffic stop is an ``intervening arrest'' for purposes of determining 
whether multiple prior sentences should be ``counted separately or 
treated as a single sentence'' when assigning criminal history points 
(``single-sentence rule'') under Sec.  4A1.2(a)(2).
    The Third, Sixth, Ninth, and Eleventh Circuits have held that a 
formal, custodial arrest is required, and that a citation or summons 
following a traffic stop does not qualify. See United States v. Ley, 
876 F.3d 103, 109 (3d Cir. 2017); United States v. Rogers, 86 F.4th 
259, 264-65 (6th Cir. 2023); United States v. Leal-Felix, 665 F.3d 
1037, 1041-42 (9th Cir. 2011) (en banc); United States v. Wright, 862 
F.3d 1265, 1282 (11th Cir. 2017). By contrast, the Seventh Circuit has 
adopted a broad view of the term, holding that a traffic stop amounts 
to an intervening arrest. See United States v. Morgan, 354 F.3d 621, 
624 (7th Cir. 2003).
    After reviewing public comment and testimony, the Commission 
determined that a traffic stop should not be considered an 
``intervening arrest'' for purposes of the single-sentence rule. The 
amendment revises Sec.  4A1.2(a)(2) to include that clarification.

2. Amendment

Part A (Application of Mitigating Role Adjustment in Drug Trafficking 
Cases)

Subpart 1 (Mitigating Role Provisions at Sec.  2D1.1(a)(5))
    Section 2D1.1(a)(5) is amended by striking ``the offense level 
specified in the Drug Quantity Table set forth in subsection (c), 
except that if (A) the defendant receives an adjustment under Sec.  
3B1.2 (Mitigating Role); and (B) the base offense level under 
subsection (c) is (i) level 32, decrease by 2 levels; (ii) level 34 or 
level 36, decrease by 3 levels; or (iii) level 38, decrease by 4 
levels. If the resulting offense level is greater than level 32 and the 
defendant receives the 4-level (`minimal participant') reduction in 
Sec.  3B1.2(a), decrease to level 32'' and inserting ``the offense 
level specified in the Drug Quantity Table set forth in subsection (c), 
except that if (A) the defendant receives an adjustment under Sec.  
3B1.2 (Mitigating Role); and (B) the base offense level under 
subsection (c) is (i) level 32, decrease by 2 levels; (ii) level 34, 
decrease by 3 levels; or (iii) above level 34, decrease to level 32. If 
the resulting offense level is greater than level 30 and the defendant 
receives the 4-level reduction in Sec.  3B1.2(a), decrease to level 
30''.
    Section 2D1.1(b)(17) is amended by striking ``(`minimal 
participant')''.
Subpart 2 (Special Instruction Relating to Sec.  3B1.2)
    Section 2D1.1(e) is amended--
    in the heading by striking ``Instruction'' and inserting 
``Instructions'';
    and by inserting at the end the following new paragraph (2):
    ``(2) Application of Sec.  3B1.2 (Mitigating Role) to Sec.  2D1.1 
Cases
    (A) Determine whether an adjustment under Sec.  3B1.2 (Mitigating 
Role) applies.
    (B) In addition to the circumstances identified in Sec.  3B1.2, an 
adjustment under Sec.  3B1.2 is generally warranted if the defendant's 
primary function in the offense was performing a low-level trafficking 
function.
    (i) An adjustment under Sec.  3B1.2(a) is generally warranted if 
the defendant's primary function in the offense was plainly among the 
lowest level of drug trafficking functions, such as serving as a 
courier, running errands, sending or receiving phone calls or messages, 
or acting as a lookout; or
    (ii) an adjustment under Sec.  3B1.2(b) is generally warranted if 
the defendant's primary function in the offense was performing another 
low-level trafficking function, such as distributing controlled 
substances in user-level quantities for little or no monetary 
compensation or with a primary motivation other than profit (e.g., the 
defendant was otherwise unlikely to commit such an offense and was 
motivated by an intimate or familial relationship, or by threats or 
fear to commit the offense).
    For purposes of subsection (e)(2)(B), the provisions of Sec.  3B1.2 
apply in determining whether a mitigating role adjustment is warranted, 
except that the adjustment shall apply regardless of whether the 
offense involved other participants in addition to the defendant, and 
regardless of whether the defendant was substantially less culpable 
than the average participant in the criminal activity. The extent of 
the adjustment shall be based on the totality of the circumstances and 
involves a determination that is heavily dependent upon the facts of 
the particular case.
    (C) The mitigating role provisions at subsection (a)(5) and the 2-
level reduction at subsection (b)(17) apply regardless of whether the 
defendant receives the required adjustment from Sec.  3B1.2 (Mitigating 
Role) by direct application of Sec.  3B1.2 or by use of the special 
instruction in subsection (e)(2)(B).''.
    The Commentary to Sec.  3B1.2 captioned ``Application Notes'' is 
amended in Note 3(A) by striking the following:
    ``A defendant who is accountable under Sec.  1B1.3 (Relevant 
Conduct) only for the conduct in which the defendant personally was 
involved and who performs a limited function in the criminal activity 
may receive an adjustment under this guideline. For example, a 
defendant who is convicted of a drug trafficking offense, whose 
participation in that offense was limited to transporting or storing 
drugs and who is accountable under Sec.  1B1.3 only for the quantity of 
drugs the defendant personally transported or stored may receive an 
adjustment under this guideline.
    Likewise, a defendant who is accountable under Sec.  1B1.3 for a 
loss amount under Sec.  2B1.1 (Theft, Property Destruction, and Fraud) 
that greatly exceeds the defendant's personal gain from a fraud offense 
or who had limited knowledge of the scope of the scheme may receive an 
adjustment under this guideline. For example, a defendant in a health 
care fraud scheme, whose participation in the scheme was limited to 
serving as a nominee owner and who received little personal gain 
relative to the loss amount, may receive an adjustment under this 
guideline.'';
    and inserting the following:
    ``A defendant who is accountable under Sec.  1B1.3 (Relevant 
Conduct) only for the conduct in which the defendant personally was 
involved and who performs a limited function in the criminal activity 
may receive an adjustment under this guideline. For example, a 
defendant who is accountable under Sec.  1B1.3 for a loss amount under 
Sec.  2B1.1 (Theft, Property Destruction, and Fraud) that greatly 
exceeds the defendant's personal gain from a fraud offense or who had 
limited knowledge of the scope of the scheme may receive an adjustment 
under this guideline. For example, a defendant in a health care fraud 
scheme, whose participation in the scheme was limited to serving as a 
nominee owner and who received little personal gain relative to the 
loss amount, may receive an adjustment under this guideline.''.

[[Page 19801]]

Part B (Representing or Marketing Fentanyl or a Fentanyl Analogue as a 
Legitimately Manufactured Drug)

    Section 2D1.1(b)(13)(B) is amended by striking ``and acted with 
willful blindness or conscious avoidance of knowledge that such mixture 
or substance was not the legitimately manufactured drug'' and inserting 
``with reckless disregard that such mixture or substance was not the 
legitimately manufactured drug''.
    Reason for Amendment: This two-part amendment is the result of 
Commission study on the operation of Sec.  2D1.1 (Unlawful 
Manufacturing, Importing, Exporting, or Trafficking (Including 
Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy). As part of its study, the Commission considered feedback 
from the field, including at a roundtable discussion on drug 
sentencing, a public hearing, and public comment. The Commission also 
analyzed a range of drug trafficking sentencing data, including data on 
sentences imposed at the highest base offense levels, the application 
of the ``mitigating role cap'' and mitigating role adjustment, 
sentences imposed based on function, and the application of 
enhancements in fentanyl and fentanyl analogue cases. The Commission 
determined that targeted changes were warranted to ensure appropriate 
penalties commensurate with an individual's function in a drug 
trafficking offense and to better address the harms of representing or 
marketing fentanyl or a fentanyl analogue as a legitimately 
manufactured drug.
Part A--Application of Mitigating Role Adjustment in Drug Trafficking 
Cases
    Part A of the amendment contains two subparts to address concerns 
that Sec.  2D1.1 and Sec.  3B1.2 (Mitigating Role) as they currently 
apply in tandem do not adequately account for the lower culpability of 
individuals performing low-level functions in a drug trafficking 
offense.
Subpart 1 (Mitigating Role Provisions at Sec.  2D1.1(a)(5))
    Subpart 1 of Part A amends the mitigating role provisions in Sec.  
2D1.1(a)(5) to refine the drug trafficking guideline in cases where an 
individual receives an adjustment under Sec.  3B1.2. The Commission 
initially added the mitigating role cap to ``somewhat limit[ ] the 
sentencing impact of drug quantity for offenders who perform relatively 
low level trafficking functions.'' USSG App. C, amend. 640 (effective 
Nov. 1, 2002). As previously amended, Sec.  2D1.1(a)(5) provided a 
graduated 2-, 3-, or 4-level decrease, depending on the base offense 
level under Sec.  2D1.1(c), when a defendant received a mitigating role 
adjustment under Sec.  3B1.2. USSG App. C, amend. 668 (effective Nov. 
1, 2004).
    This amendment maintains the approach of graduated decreases 
depending on the base offense level but amends Sec.  2D1.1(a)(5) in two 
ways. First, it sets a mitigating role cap at level 32 if the defendant 
receives an adjustment under Sec.  3B1.2 and has a base offense level 
above 34. Second, if the defendant has a resulting offense level 
greater than 30 and receives a 4-level adjustment under Sec.  3B1.2(a), 
then a mitigating role cap of 30 applies.
    As explained further below in Subpart 2, the mitigating role 
provisions in Sec.  2D1.1(a)(5) and the 2-level reduction at Sec.  
2D1.1(b)(17) apply regardless of whether the defendant receives the 
required adjustment from Sec.  3B1.2 by direct application of Sec.  
3B1.2 or by use of the new special instruction in Sec.  2D1.1(e)(2)(B). 
Thus, the amendment deletes the phrase ``minimal participant'' from 
Sec.  2D1.1(a)(5) and Sec.  2D1.1(b)(17) to clarify that those 
provisions are triggered regardless of whether a defendant receives a 
4-level reduction by direct application of Sec.  3B1.2(a) or by use of 
the new special instruction in Sec.  2D1.1(e)(2)(B).
Subpart 2 (Special Instruction Relating to Sec.  3B1.2)
    Subpart 2 of Part A adds a new special instruction at Sec.  
2D1.1(e) to address the inconsistent application of Sec.  3B1.2 in 
Sec.  2D1.1 cases and to encourage broader use of Sec.  3B1.2 in these 
cases.
    Section 3B1.2 provides a range of reductions depending on the 
defendant's role in the criminal activity. Subsection (a) sets forth a 
4-level reduction if the defendant was a ``minimal participant in any 
criminal activity.'' Subsection (b) sets forth a 2-level reduction if 
the defendant was ``a minor participant in any criminal activity.'' 
Section 3B1.2 also provides for a 3-level reduction where the case 
``fall[s] between (a) and (b).''
    The Commission previously amended the Commentary to Sec.  3B1.2 to 
increase its usage (see, e.g., USSG App. C, amend. 794 (effective Nov. 
1, 2015)). However, Commission data shows that the prior amendment did 
not result in a sustained increase in application of the mitigating 
role adjustment in Sec.  2D1.1 cases. Commission data show that when 
Sec.  3B1.2 is applied in Sec.  2D1.1 cases, the vast majority of these 
cases receive only a 2-level reduction; 3- and 4-level reductions are 
rarely applied. Furthermore, Commission data shows variations across 
districts in application of Sec.  3B1.2 to Sec.  2D1.1 cases. The new 
special instruction at Sec.  2D1.1(e) addresses the application of 
Sec.  3B1.2 to Sec.  2D1.1 cases as follows.
    The amendment expands the circumstances in which an adjustment 
under Sec.  3B1.2 is warranted in Sec.  2D1.1 cases by instructing 
courts that an adjustment is generally warranted if the defendant's 
``primary function'' in the offense was performing a low-level 
trafficking function. Section 2D1.1(e)(2)(A) directs the court to 
determine whether an adjustment under Sec.  3B1.2 applies as a court 
already does under the Guidelines Manual. Section 2D1.1(e)(2)(B) then 
provides that, in addition to the circumstances identified in Sec.  
3B1.2, an adjustment under Sec.  3B1.2 is generally warranted if the 
defendant's primary function in the offense was performing a low-level 
trafficking function. Thus, a defendant sentenced under Sec.  2D1.1 may 
qualify for a mitigating role adjustment under Sec.  3B1.2 by direct 
application of that adjustment or by use of the special instruction in 
Sec.  2D1.1(e)(2)(B).
    To ensure courts focus on a defendant's predominant trafficking-
related activities, the Commission selected ``primary function'' to 
guide courts in determining whether an adjustment is appropriate. Due 
to the wide variety of functions performed by individuals in drug 
trafficking offenses, the examples listed in Sec.  2D1.1(e)(2)(B) are 
illustrative rather than a definitive list.
    To assist courts in determining the appropriate level of reduction, 
the amendment provides examples of functions generally warranting an 
adjustment under Sec.  3B1.2(a) and (b). Section 2D1.1(e)(2)(B)(i) 
states that a four-level adjustment under Sec.  3B1.2(a) is generally 
warranted if the defendant's primary function in the offense was 
plainly among the lowest level of drug trafficking functions. It lists 
as examples serving as a courier, running errands, sending or receiving 
phone calls or messages, or acting as a lookout. Section 
2D1.1(e)(2)(B)(ii) states that a two-level adjustment under Sec.  
3B1.2(b) is generally warranted if the defendant's primary function in 
the offense was another low-level trafficking function. It lists as 
examples distributing controlled substances in user-level quantities 
for little or no monetary compensation or with a primary motivation 
other than profit (e.g., the defendant was otherwise unlikely to commit 
such an offense and was motivated by an intimate or familial 
relationship or by threats or fear to commit the offense).

[[Page 19802]]

    The amendment places the special instruction in Sec.  2D1.1 instead 
of Sec.  3B1.2 to highlight that the rules for determining Sec.  3B1.2 
eligibility are different in Sec.  2D1.1 cases. For purposes of the 
special instruction at Sec.  2D1.1(e)(2)(B), the provisions of Sec.  
3B1.2 apply in determining whether a mitigating role adjustment is 
warranted, with two exceptions: the amendment provides that the 
adjustment shall apply regardless of whether the offense involved other 
participants in addition to the defendant, and also regardless of 
whether the defendant was substantially less culpable than the average 
participant in the criminal activity. The Commission determined that 
these two provisions in the Commentary to Sec.  3B1.2 may discourage a 
court from applying a mitigating role adjustment in single-defendant 
drug trafficking cases or drug trafficking cases where the defendant 
performed a similar low-level function as other participants in the 
criminal activity, but an adjustment may nevertheless be appropriate. 
Accordingly, the Commission concluded that these provisions shall not 
apply in assessing whether a mitigating role adjustment is warranted 
based on a defendant's low-level function in a drug trafficking 
offense.
    The amendment specifies that the mitigating role provisions in 
Sec.  2D1.1(a)(5) and the 2-level reduction at Sec.  2D1.1(b)(17) apply 
regardless of whether the defendant receives the Sec.  3B1.2 adjustment 
by direct application of Sec.  3B1.2 or by use of the special 
instruction in Sec.  2D1.1(e)(2)(B). This instruction ensures that any 
individual who receives a mitigating role adjustment, regardless of the 
mechanism, may also receive the reductions in Sec.  2D1.1(a)(5) and 
Sec.  2D1.1(b)(17).
Part B--Representing or Marketing Fentanyl or a Fentanyl Analogue as a 
Legitimately Manufactured Drug
    Part B of the amendment changes the mens rea requirement in Sec.  
2D1.1(b)(13)(B). In light of the continuing danger associated with the 
misrepresentation of fake prescription pills containing fentanyl or a 
fentanyl analogue, the Commission addressed concerns that the mens rea 
requirement was vague and difficult to apply.
    Section 2D1.1(b)(13)(A) provides a 4-level increase when the 
defendant knowingly misrepresented or knowingly marketed as another 
substance a mixture or substance containing fentanyl or a fentanyl 
analogue. The Commission added this specific offense characteristic in 
2018 in response to rising numbers of fentanyl and fentanyl analogue 
cases. See USSG, App. C. amend. 807 (effective Nov. 1, 2018). In 2023, 
the Commission added an alternative 2-level enhancement at Sec.  
2D1.1(b)(13)(B) 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 Commission 
added this specific offense characteristic based on the continued 
increase in fentanyl and fentanyl analogue distribution and data 
showing that most fake prescription pills seized containing fentanyl 
had a potentially lethal dose of the substance. See USSG, App. C. 
amend. 818 (effective Nov. 1, 2023).
    The Commission received comment that Sec.  2D1.1(b)(13)(B) is being 
applied inconsistently, in part, because the current mens rea 
requirement has generated confusion. In particular, commenters have 
urged the Commission to revise Sec.  2D1.1(b)(13)(B) because the mental 
state of ``willful blindness or conscious avoidance of knowledge'' is 
vague, and cases construe willful blindness as legally equivalent to 
knowledge, causing uncertainty over when the enhancement should be 
applied. The Commission further heard concerns about the continuing 
dangers associated with representing or marketing fentanyl or a 
fentanyl analogue as a legitimately manufactured drug.
    Informed by those concerns, the amendment changes the mens rea 
requirement in Sec.  2D1.1(b)(13)(B) from ``willful blindness or 
conscious avoidance of knowledge'' to ``reckless disregard.''
    3. Amendment: Section 2K2.1(b) is amended--
    in paragraph (3)(B) by striking ``subdivision'' and inserting 
``paragraph'';
    by redesignating paragraphs (5) through (9) as paragraphs (6) 
through (10), respectively;
    by inserting after paragraph (4) the following new paragraph (5):
    ``(5) (Apply the Greatest) If the defendant--
    (A)(i) possessed four or more machinegun conversion devices; or 
(ii) transferred or sold any machinegun conversion device to another 
person, or attempted or conspired to commit such a transfer or sale, 
increase by 2 levels; or
    (B) possessed 30 or more machinegun conversion devices, increase by 
4 levels.
    For purposes of subsection (b)(5), `machinegun conversion device' 
means any part designed and intended solely and exclusively, or 
combination of parts designed and intended, for use in converting a 
weapon into a machinegun (i.e., any weapon which shoots, is designed to 
shoot, or can be readily restored to shoot, automatically more than one 
shot, without manual reloading, by a single function of the 
trigger).'';
    in the paragraph that begins ``The cumulative offense level'' by 
striking ``(b)(4)'' and inserting ``(b)(5)'';
    in paragraph (6) (as so redesignated), in the subparagraph that 
begins ``Provided, however,'' by striking ``(b)(5)(C)(i)(I)'' and 
inserting ``(b)(6)(C)(i)(I)'';
    in paragraph (9)(A) (as so redesignated) by striking ``(b)(5)'' and 
inserting ``(b)(6)'';
    and in paragraph (10)(A) (as so redesignated) by striking 
``(b)(5)'' and inserting ``(b)(6)''.
    The Commentary to Sec.  2K2.1 caption ``Application Notes'' is 
amended--
    in Note 1, in the paragraph that begins `` `Firearm' has the 
meaning'' by inserting after ``18 U.S.C. 921(a)(3)'' the following: ``, 
unless otherwise specified'';
    in Note 3 by striking ``(b)(5)'' and inserting ``(b)(6)'';
    in Note 9 by striking ``Application of Subsection (b)(7).--Under 
subsection (b)(7), if a record-keeping offense'' and inserting 
``Application of Subsection (b)(8).--Under subsection (b)(8), if a 
recordkeeping offense'';
    in Note 13--
    in the heading by striking ``(b)(5)'' and inserting ``(b)(6)'';
    and in subparagraph (C) by striking ``(b)(5)'' and inserting 
``(b)(6)''; and by striking ``(b)(6)(B)'' and inserting ``(b)(7)(B)'';
    and in Note 14--
    in the heading by striking ``(b)(6)(B)'' and inserting 
``(b)(7)(B)'';
    in subparagraph (A) by striking ``(b)(6)(B)'' and inserting 
``(b)(7)(B)'';
    in subparagraph (B) by striking ``(b)(6)(B)'' both places it 
appears and inserting ``(b)(7)(B)'';
    in subparagraph (C) by striking ``(b)(6)(B)'' and inserting 
``(b)(7)(B)'';
    and in subparagraph (E) by striking ``(b)(6)(B)'' each place it 
appears and inserting ``(b)(7)(B)''.
    The Commentary to Sec.  2K2.4 captioned ``Application Notes'' is 
amended in Note 4(A) in the paragraph that begins ``If the explosive'' 
by striking ``Sec.  2K2.1(b)(6)(B)'' both places it appears and 
inserting ``Sec.  2K2.1(b)(7)(B)''.
    Reason for Amendment: This amendment revises Sec.  2K2.1 (Unlawful

[[Page 19803]]

Receipt, Possession, or Transportation of Firearms or Ammunition; 
Prohibited Transactions Involving Firearms or Ammunition), the primary 
firearms guideline, to more fully account for machinegun conversion 
devices (MCDs).
    Commonly referred to as ``Glock switches'' and ``auto sears,'' MCDs 
are devices designed to convert semi-automatic firearms into fully 
automatic weapons. Under the National Firearms Act (NFA), the 
definition of ``machinegun'' includes ``any part designed and intended 
solely and exclusively, or combination of parts designed and intended, 
for use in converting a weapon into a machinegun.'' 26 U.S.C. 5845(b). 
An MCD therefore qualifies as a machinegun under federal law, and--as 
in the case of other machineguns--federal law generally prohibits the 
possession and transfer of such devices, with limited exceptions. See 
18 U.S.C. 922(o).
    As a technical matter, the definition of ``firearm'' is not uniform 
throughout federal law. Because the NFA defines ``firearm'' to include 
machineguns--and ``machinegun'' to include MCDs--MCDs qualify as 
``firearms'' under the NFA definition at 26 U.S.C. 5845(a). By 
contrast, MCDs are not firearms under the definition of that term 
provided in the Gun Control Act (GCA), which is limited (as relevant) 
to a weapon ``which will or is designed to or may readily be converted 
to expel a projectile by the action of an explosive'' and ``the frame 
or receiver of any such weapon.'' 18 U.S.C. 921(a)(3).
    Prior to this amendment, Sec.  2K2.1 accounted for MCDs solely 
through base offense levels. It provided certain enhanced base offense 
levels for offenses involving NFA firearms, including MCDs. See USSG 
Sec.  2K2.1(a)(1), (3), (4), (5). Although Sec.  2K2.1's base offense 
levels specifically incorporated the NFA definition of firearm, the 
remainder of Sec.  2K2.1 used the GCA definition. See USSG Sec.  2K2.1, 
comment. (n.1). Therefore, MCDs did not trigger the specific offense 
characteristics in Sec.  2K2.1. For example, if an individual were 
convicted of a firearms offense in which he possessed one semi-
automatic firearm and five MCDs, an enhanced base offense level would 
apply because the offense involved a firearm described in 26 U.S.C. 
5845(a), see USSG Sec.  2K2.1(a)(1), (3), (4), (5), but there would be 
no enhancement under the specific offense characteristic at Sec.  
2K2.1(b)(1) for the number of MCDs possessed because MCDs are not 
firearms under the GCA definition. See USSG Sec.  2K2.1(b)(1). For the 
same reason, if the individual transferred the MCDs to another person, 
this conduct would not support a trafficking enhancement under the 
specific offense characteristic at Sec.  2K2.1(b)(5) the way the 
transfer of a GCA firearm (or ammunition) would. See USSG Sec.  
2K2.1(b)(5).
    The Commission's amendment responds to concerns by the Department 
of Justice and other commenters about the proliferation of MCDs, which 
pose a heightened danger to the public because a weapon equipped with 
an MCD fires more rapidly and with less control than an identical 
weapon without an MCD. Of note, the Department of Justice pointed to a 
570% rise in MCD recoveries in 2021 as compared to 2017 and to the 
growing involvement of automatic gunfire reported in shootings. 
Commission data similarly reflects a recent rise in firearms cases 
involving MCDs. In fiscal year 2023, 4.5 percent of cases sentenced 
under Sec.  2K2.1 involved an MCD--an increase from one percent of 
Sec.  2K2.1 cases in fiscal year 2019. While most cases involving MCDs 
in fiscal year 2023 involved a single MCD, more than 18 percent 
involved four or more devices. In addition, in more than 25 percent of 
Sec.  2K2.1 cases involving MCDs, the sentenced individual transferred 
at least one MCD to another person.
    To address these concerns and in recognition that MCDs pose 
different risks than functional firearms, the amendment establishes a 
new tiered specific offense characteristic at Sec.  2K2.1(b)(5) for 
cases involving MCDs. New subsection (b)(5)(A) provides a two-level 
enhancement when a defendant (i) possessed four or more MCDs or (ii) 
transferred or sold an MCD or attempted or conspired to commit such a 
transfer or sale. New subsection (b)(5)(B) provides a four-level 
enhancement when a defendant possessed 30 or more MCDs. The amendment 
includes a definition of ``machinegun conversion device'' consistent 
with the NFA's statutory definition at 26 U.S.C. 5845(b). To tailor the 
enhancement to the most culpable conduct, the Commission determined 
that it should apply only to the acts of the defendant. The Commission 
also concluded that the new specific offense characteristic should be 
subject to the offense level cap in Sec.  2K2.1. The amendment revises 
the cap to provide that the cumulative offense level may not exceed 
level 29 after application of subsections (b)(1) through the new 
subsection (b)(5), unless subsection (b)(3)(A) applies.
    The amendment also includes conforming changes, including to the 
Commentary to Sec.  2K2.1 and Sec.  2K2.4 (Use of Firearm, Armor-
Piercing Ammunition, or Explosive During or in Relation to Certain 
Crimes), to address the renumbering of the prior Sec.  2K2.1(b)(5) 
through (9).
    4. Amendment: The Commentary to Sec.  1B1.10 captioned 
``Application Notes'' is amended in Note 8(B) by inserting after ``18 
U.S.C. 3583(e)(1).'' the following: ``See Sec.  5D1.4 (Modification, 
Early Termination, and Extension of Supervised Release (Policy 
Statement)).''.
    The Commentary to Sec.  4B1.5 captioned ``Application Notes'' is 
amended in Note 5 by striking the following:
    ``Treatment and Monitoring.--
    (A) Recommended Maximum Term of Supervised Release.--The statutory 
maximum term of supervised release is recommended for offenders 
sentenced under this guideline.
    (B) Recommended Conditions of Probation and Supervised Release.--
Treatment and monitoring are important tools for supervising offenders 
and should be considered as special conditions of any term of probation 
or supervised release that is imposed.'';
    and by inserting the following:
    ``Treatment and Monitoring.--Treatment and monitoring are important 
tools for supervising offenders and should be considered as special 
conditions of any term of probation or supervised release that is 
imposed.''.
    Section 5B1.3(d)(7) is amended by striking ``, as defined in 
Application Note 1 of the Commentary to Sec.  5D1.2 (Term of Supervised 
Release)''.
    The Commentary to Sec.  5B1.3 captioned ``Application Note'' is 
amended--
    in the caption by striking ``Note'' and inserting ``Notes'';
    and by inserting at the end the following new Note 2:
    ``2. Application of Subsection (d)(7).--For purposes of subsection 
(d)(7):
    `Sex offense' means (A) an offense, perpetrated against a minor, 
under (i) chapter 109A of title 18, United States Code; (ii) chapter 
110 of such title, not including a recordkeeping offense; (iii) chapter 
117 of such title, not including transmitting information about a minor 
or filing a factual statement about an alien individual; (iv) an 
offense under 18 U.S.C. 1201; or (v) an offense under 18 U.S.C. 1591; 
or (B) an attempt or a conspiracy to commit any offense described in 
subparagraphs (A)(i) through (v) of this note. Such term does not 
include an offense under 18 U.S.C. 2250 (Failure to register).
    `Minor' means (A) an individual who had not attained the age of 18 
years; (B) an individual, whether fictitious or not, who a law 
enforcement officer

[[Page 19804]]

represented to a participant (i) had not attained the age of 18 years; 
and (ii) could be provided for the purposes of engaging in sexually 
explicit conduct; or (C) an undercover law enforcement officer who 
represented to a participant that the officer had not attained the age 
of 18 years.''.
    Chapter Five, Part D is amended by inserting at the beginning the 
following new Introductory Commentary:
    ``Introductory Commentary
    The Sentencing Reform Act of 1984 requires the court to assess a 
wide range of factors `in determining whether to include a term of 
supervised release, and, if a term of supervised release is to be 
included, in determining the length of the term and the conditions of 
supervised release.' 18 U.S.C. 3583(c). These determinations aim to 
make the imposition and scope of supervised release `dependent on the 
needs of the defendant for supervision.' See S. Rep. No. 225, 98th 
Cong., 1st Sess. 124 (1983). In conducting such an individualized 
assessment, the court can `assure that [those] who will need post-
release supervision will receive it' while `prevent[ing] probation 
system resources from being wasted on supervisory services for 
releasees who do not need them.' Id. at 54; see also Johnson v. United 
States, 529 U.S. 694, 709 (2000) (`Supervised release departed from the 
parole system it replaced by giving district courts the freedom to 
provide postrelease supervision for those, and only those, who needed 
it . . . . Congress aimed, then, to use the district courts' 
discretionary judgment to allocate supervision to those releasees who 
needed it most.'). Supervised release `fulfills rehabilitative ends, 
distinct from those served by incarceration.' United States v. Johnson, 
529 U.S. 53, 59 (2000). Accordingly, a court should consider whether 
the defendant needs supervision in order to ease transition into the 
community or to provide further rehabilitation and whether supervision 
will promote public safety. See 18 U.S.C. 3583(c), 3553(a)(2)(C)); see 
also S. Rep. No. 225, 98th Cong., 1st Sess. 124 (1983) (indicating that 
a `primary goal of [a term of supervised release] is to ease the 
defendant's transition into the community after the service of a long 
prison term for a particularly serious offense, or to provide 
rehabilitation to a defendant who has spent a fairly short period in 
prison for punishment or other purposes but still needs supervision and 
training programs after release').''.
    Section 5D1.1 is amended--
    by striking subsections (a) and (b) as follows:
    ``(a) The court shall order a term of supervised release to follow 
imprisonment--
    (1) when required by statute (see 18 U.S.C. 3583(a)); or
    (2) except as provided in subsection (c), when a sentence of 
imprisonment of more than one year is imposed.
    (b) The court may order a term of supervised release to follow 
imprisonment in any other case. See 18 U.S.C. 3583(a).'';
    and inserting the following new subsections (a) and (b):
    ``(a) The court shall order a term of supervised release to follow 
imprisonment when required by statute (see 18 U.S.C. 3583(a)).
    (b) When a term of supervised release is not required by statute, 
the court should order a term of supervised release to follow 
imprisonment when warranted by an individualized assessment of the need 
for supervision.'';
    and by inserting at the end the following new subsection (d):
    ``(d) The court should state in open court the reasons for imposing 
or not imposing a term of supervised release. See 18 U.S.C. 3553(c).''.
    The Commentary to Sec.  5D1.1 captioned ``Application Notes'' is 
amended--
    by striking Notes 1, 2, and 3 as follows:
    ``1. Application of Subsection (a).--Under subsection (a), the 
court is required to impose a term of supervised release to follow 
imprisonment when supervised release is required by statute or, except 
as provided in subsection (c), when a sentence of imprisonment of more 
than one year is imposed. The court may depart from this guideline and 
not impose a term of supervised release if supervised release is not 
required by statute and the court determines, after considering the 
factors set forth in Note 3, that supervised release is not necessary.
    2. Application of Subsection (b).--Under subsection (b), the court 
may impose a term of supervised release to follow a term of 
imprisonment in any other case, after considering the factors set forth 
in Note 3.
    3. Factors to Be Considered.--
    (A) Statutory Factors.--In determining whether to impose a term of 
supervised release, the court is required by statute to consider, among 
other factors:
    (i) the nature and circumstances of the offense and the history and 
characteristics of the defendant;
    (ii) the need to afford adequate deterrence to criminal conduct, to 
protect the public from further crimes of the defendant, and to provide 
the defendant with needed educational or vocational training, medical 
care, or other correctional treatment in the most effective manner;
    (iii) the need to avoid unwarranted sentence disparities among 
defendants with similar records who have been found guilty of similar 
conduct; and
    (iv) the need to provide restitution to any victims of the offense.
    See 18 U.S.C. 3583(c).
    (B) Criminal History.--The court should give particular 
consideration to the defendant's criminal history (which is one aspect 
of the `history and characteristics of the defendant' in subparagraph 
(A)(i), above). In general, the more serious the defendant's criminal 
history, the greater the need for supervised release.
    (C) Substance Abuse.--In a case in which a defendant sentenced to 
imprisonment is an abuser of controlled substances or alcohol, it is 
highly recommended that a term of supervised release also be imposed. 
See Sec.  5H1.4 (Physical Condition, Including Drug or Alcohol 
Dependence or Abuse; Gambling Addiction).
    (D) Domestic Violence.--If the defendant is convicted for the first 
time of a domestic violence crime as defined in 18 U.S.C. 3561(b), a 
term of supervised release is required by statute. See 18 U.S.C. 
3583(a). Such a defendant is also required by statute to attend an 
approved rehabilitation program, if available within a 50-mile radius 
of the legal residence of the defendant. See 18 U.S.C. 3583(d); Sec.  
5D1.3(a)(3). In any other case involving domestic violence or stalking 
in which the defendant is sentenced to imprisonment, it is highly 
recommended that a term of supervised release also be imposed.'';
    by redesignating Notes 4 and 5 as Notes 5 and 6, respectively;
    by inserting at the beginning the following new Notes 1, 2, 3, and 
4:
    ``1. Individualized Assessment.--The statutory framework of 
supervised release aims to `assure that [those] who will need post-
release supervision will receive it' while `prevent[ing] probation 
system resources from being wasted on supervisory services for 
releasees who do not need them.' See S. Rep. No. 225, 98th Cong., 1st 
Sess. 54 (1983). To that end, 18 U.S.C. 3583(c) requires the court to, 
`in determining whether to include a term of supervised release, and, 
if a term of supervised release is to be included, in determining the 
length of the term and the conditions of supervised release,' consider 
the following:
    (A) the nature and circumstances of the offense and the history and 
characteristics of the defendant (18 U.S.C. 3553(a)(1));

[[Page 19805]]

    (B) the need to afford adequate deterrence to criminal conduct, to 
protect the public from further crimes of the defendant, and to provide 
the defendant with needed educational or vocational training, medical 
care, or other correctional treatment in the most effective manner (18 
U.S.C. 3553(a)(2)(B)-(D));
    (C) the kinds of sentence and the sentencing range established for 
the applicable category of offense committed by the applicable category 
of defendant as set forth in the guidelines (18 U.S.C. 3553(a)(4));
    (D) any pertinent policy statement issued by the Sentencing 
Commission (18 U.S.C. 3553(a)(5));
    (E) the need to avoid unwarranted sentence disparities among 
defendants with similar records who have been found guilty of similar 
conduct (18 U.S.C. 3553(a)(6)); and
    (F) the need to provide restitution to any victims of the offense 
(18 U.S.C. 3553(a)(7)).
    See 18 U.S.C. 3583(c).
    2. Criminal History.--The court should give particular 
consideration to the defendant's criminal history (which is one aspect 
of the `history and characteristics of the defendant' in Application 
Note 1(A) above). In general, the more serious the defendant's criminal 
history, the greater the need for supervised release.
    3. Substance Abuse.--In a case in which a defendant sentenced to 
imprisonment is an abuser of controlled substances or alcohol, it is 
highly recommended that a term of supervised release also be imposed. 
See Sec.  5H1.4 (Physical Condition, Including Drug or Alcohol 
Dependence or Abuse; Gambling Addiction).
    4. Domestic Violence.--If the defendant is convicted for the first 
time of a domestic violence crime as defined in 18 U.S.C. 3561(b), a 
term of supervised release is required by statute. See 18 U.S.C. 
3583(a). Such a defendant is also required by statute to attend an 
approved rehabilitation program, if available within a 50-mile radius 
of the legal residence of the defendant. See 18 U.S.C. 3583(d); Sec.  
5D1.3(a)(3). In any other case involving domestic violence or stalking 
in which the defendant is sentenced to imprisonment, it is highly 
recommended that a term of supervised release also be imposed.'';
    and by inserting at the end the following new Note 7:
    ``7. Evidence-Based Recidivism Reduction Programming.--Whether a 
defendant's sentence includes a term of supervised release may impact 
the application of time credits earned by the defendant under the First 
Step Act of 2018, Pub. L. 115-391. The First Step Act of 2018 allows 
individuals in custody who successfully complete evidence-based 
recidivism reduction programming or productive activities to earn time 
credits. See 18 U.S.C. 3632(d)(4)(A). Regarding the application of 
those time credits, the First Step Act of 2018 provides: `If the 
sentencing court included as a part of the prisoner's sentence a 
requirement that the prisoner be placed on a term of supervised release 
after imprisonment pursuant to [18 U.S.C. 3583], the Director of the 
Bureau of Prisons may transfer the prisoner to begin any such term of 
supervised release at an earlier date, not to exceed 12 months, based 
on the application of time credits under [18 U.S.C. 3632].' 18 U.S.C. 
3624(g)(3).''.
    Section 5D1.2 is amended--
    by striking subsections (a), (b), and (c) as follows:
    ``(a) Except as provided in subsections (b) and (c), if a term of 
supervised release is ordered, the length of the term shall be:
    (1) At least two years but not more than five years for a defendant 
convicted of a Class A or B felony. See 18 U.S.C. 3583(b)(1).
    (2) At least one year but not more than three years for a defendant 
convicted of a Class C or D felony. See 18 U.S.C. 3583(b)(2).
    (3) One year for a defendant convicted of a Class E felony or a 
Class A misdemeanor. See 18 U.S.C. 3583(b)(3).
    (b) Notwithstanding subdivisions (a)(1) through (3), the length of 
the term of supervised release shall be not less than the minimum term 
of years specified for the offense under subdivisions (a)(1) through 
(3) and may be up to life, if the offense is--
    (1) any offense listed in 18 U.S.C. 2332b(g)(5)(B), the commission 
of which resulted in, or created a foreseeable risk of, death or 
serious bodily injury to another person; or
    (2) a sex offense.
    (Policy Statement) If the instant offense of conviction is a sex 
offense, however, the statutory maximum term of supervised release is 
recommended.
    (c) The term of supervised release imposed shall be not less than 
any statutorily required term of supervised release.'';
    and by inserting the following new subsections (a) and (b):
    ``(a) If a term of supervised release is ordered, the court shall 
conduct an individualized assessment to determine the length of the 
term, which shall not be less than any statutorily required minimum 
term. Except as otherwise provided by statute, the maximum term of 
supervised release is as follows:
    (1) Not more than five years for a defendant convicted of a Class A 
or B felony. See 18 U.S.C. 3583(b)(1).
    (2) Not more than three years for a defendant convicted of a Class 
C or D felony. See 18 U.S.C. 3583(b)(2).
    (3) Not more than one year for a defendant convicted of a Class E 
felony or a misdemeanor (other than a petty offense). See 18 U.S.C. 
3583(b)(3).
    (b) The court should state in open court the reasons for the length 
of the term imposed. See 18 U.S.C. 3553(c).''.
    The Commentary to Sec.  5D1.2 captioned ``Application Notes'' is 
amended--
    by striking Note 1 as follows:
    ``1. Definitions.--For purposes of this guideline:
    `Sex offense' means (A) an offense, perpetrated against a minor, 
under (i) chapter 109A of title 18, United States Code; (ii) chapter 
110 of such title, not including a recordkeeping offense; (iii) chapter 
117 of such title, not including transmitting information about a minor 
or filing a factual statement about an alien individual; (iv) an 
offense under 18 U.S.C. 1201; or (v) an offense under 18 U.S.C. 1591; 
or (B) an attempt or a conspiracy to commit any offense described in 
subdivisions (A)(i) through (v) of this note. Such term does not 
include an offense under 18 U.S.C. 2250 (Failure to register).
    `Minor' means (A) an individual who had not attained the age of 18 
years; (B) an individual, whether fictitious or not, who a law 
enforcement officer represented to a participant (i) had not attained 
the age of 18 years; and (ii) could be provided for the purposes of 
engaging in sexually explicit conduct; or (C) an undercover law 
enforcement officer who represented to a participant that the officer 
had not attained the age of 18 years.'';
    by striking Notes 4, 5, and 6 as follows:
    ``4. Factors Considered.--The factors to be considered in 
determining the length of a term of supervised release are the same as 
the factors considered in determining whether to impose such a term. 
See 18 U.S.C. 3583(c); Application Note 3 to Sec.  5D1.1 (Imposition of 
a Term of Supervised Release). The court should ensure that the term 
imposed on the defendant is long enough to address the purposes of 
imposing supervised release on the defendant.
    5. Early Termination and Extension.--The court has authority to 
terminate or extend a term of supervised release. See 18 U.S.C. 
3583(e)(1), (2). The court is encouraged to exercise this authority in 
appropriate cases. The prospect of exercising this authority is a 
factor the court may wish to consider in determining the length of a 
term of

[[Page 19806]]

supervised release. For example, the court may wish to consider early 
termination of supervised release if the defendant is an abuser of 
narcotics, other controlled substances, or alcohol who, while on 
supervised release, successfully completes a treatment program, thereby 
reducing the risk to the public from further crimes of the defendant.
    6. Application of Subsection (c).--Subsection (c) specifies how a 
statutorily required minimum term of supervised release may affect the 
minimum term of supervised release provided by the guidelines.
    For example, if subsection (a) provides a range of two years to 
five years, but the relevant statute requires a minimum term of 
supervised release of three years and a maximum term of life, the term 
of supervised release provided by the guidelines is restricted by 
subsection (c) to three years to five years. Similarly, if subsection 
(a) provides a range of two years to five years, but the relevant 
statute requires a minimum term of supervised release of five years and 
a maximum term of life, the term of supervised release provided by the 
guidelines is five years.
    The following example illustrates the interaction of subsections 
(a) and (c) when subsection (b) is also involved. In this example, 
subsection (a) provides a range of two years to five years; the 
relevant statute requires a minimum term of supervised release of five 
years and a maximum term of life; and the offense is a sex offense 
under subsection (b). The effect of subsection (b) is to raise the 
maximum term of supervised release from five years (as provided by 
subsection (a)) to life, yielding a range of two years to life. The 
term of supervised release provided by the guidelines is then 
restricted by subsection (c) to five years to life. In this example, a 
term of supervised release of more than five years would be a guideline 
sentence. In addition, subsection (b) contains a policy statement 
recommending that the maximum--a life term of supervised release--be 
imposed.'';
    by redesignating Notes 2 and 3 as Notes 4 and 5, respectively;
    by inserting at the beginning the following new Notes 1, 2, and 3:
    ``1. Individualized Assessment.--When conducting an individualized 
assessment to determine the length of a term of supervised release, the 
factors to be considered are the same as the factors considered in 
determining whether to impose such a term. See 18 U.S.C. 3583(c); 
Application Note 1 to Sec.  5D1.1 (Imposition of a Term of Supervised 
Release). The court should ensure that the term imposed on the 
defendant is sufficient, but not greater than necessary, to address the 
purposes of imposing supervised release on the defendant.
    2. Terrorism and Sex Offenses.--Congress has authorized a term of 
supervised release that exceeds the maximum terms described in 
subsection (a) for certain serious offenses. See 18 U.S.C. 3583(j), 
(k). For certain terrorism offenses, the authorized term of supervised 
release is any term of years or life. 18 U.S.C. 3583(j). For certain 
sex offenses, the authorized term of supervised release is any term of 
years not less than five, or up to life. 18 U.S.C. 3583(k).
    3. Drug Offenses.--For certain drug offenses, Congress has 
established statutory minimum terms of supervised release. See, e.g., 
21 U.S.C. 841(b), 960(b) (providing minimum terms of supervised release 
depending on drug type and quantity and criminal history).'';
    in Note 4 (as so redesignated) by striking ``shall be determined'' 
and inserting ``is determined'';
    in Note 5 (as so redesignated) by striking ``or the guidelines'';
    and by inserting at the end the following new Note 6:
    ``6. Early Termination and Extension.--The court has authority to 
terminate or extend a term of supervised release. See 18 U.S.C. 
3583(e)(1), (2); Sec.  5D1.4 (Modification, Early Termination, and 
Extension of Supervised Release (Policy Statement)).''.
    The Commentary to Sec.  5D1.2 is amended by striking the Commentary 
captioned ``Background'' in its entirety as follows:
    ``Background: This section specifies the length of a term of 
supervised release that is to be imposed. Subsection (c) applies to 
statutes, such as the Anti-Drug Abuse Act of 1986, that require 
imposition of a specific minimum term of supervised release.''.
    Section 5D1.3 is amended--
    by striking subsections (b), (c), (d), and (e) as follows:
    ``(b) Discretionary Conditions
    The court may impose other conditions of supervised release to the 
extent that such conditions (1) are reasonably related to (A) the 
nature and circumstances of the offense and the history and 
characteristics of the defendant; (B) the need for the sentence imposed 
to afford adequate deterrence to criminal conduct; (C) the need to 
protect the public from further crimes of the defendant; and (D) the 
need to provide the defendant with needed educational or vocational 
training, medical care, or other correctional treatment in the most 
effective manner; and (2) involve no greater deprivation of liberty 
than is reasonably necessary for the purposes set forth above and are 
consistent with any pertinent policy statements issued by the 
Sentencing Commission.
    (c) `Standard' Conditions (Policy Statement)
    The following `standard' conditions are recommended for supervised 
release. Several of the conditions are expansions of the conditions 
required by statute:
    (1) The defendant shall report to the probation office in the 
federal judicial district where he or she is authorized to reside 
within 72 hours of release from imprisonment, unless the probation 
officer instructs the defendant to report to a different probation 
office or within a different time frame.
    (2) After initially reporting to the probation office, the 
defendant will receive instructions from the court or the probation 
officer about how and when to report to the probation officer, and the 
defendant shall report to the probation officer as instructed.
    (3) The defendant shall not knowingly leave the federal judicial 
district where he or she is authorized to reside without first getting 
permission from the court or the probation officer.
    (4) The defendant shall answer truthfully the questions asked by 
the probation officer.
    (5) The defendant shall live at a place approved by the probation 
officer. If the defendant plans to change where he or she lives or 
anything about his or her living arrangements (such as the people the 
defendant lives with), the defendant shall notify the probation officer 
at least 10 days before the change. If notifying the probation officer 
at least 10 days in advance is not possible due to unanticipated 
circumstances, the defendant shall notify the probation officer within 
72 hours of becoming aware of a change or expected change.
    (6) The defendant shall allow the probation officer to visit the 
defendant at any time at his or her home or elsewhere, and the 
defendant shall permit the probation officer to take any items 
prohibited by the conditions of the defendant's supervision that he or 
she observes in plain view.
    (7) The defendant shall work full time (at least 30 hours per week) 
at a lawful type of employment, unless the probation officer excuses 
the defendant from doing so. If the defendant does not have full-time 
employment he or she shall try to find full-time employment, unless the 
probation officer excuses the defendant from doing so. If the

[[Page 19807]]

defendant plans to change where the defendant works or anything about 
his or her work (such as the position or the job responsibilities), the 
defendant shall notify the probation officer at least 10 days before 
the change. If notifying the probation officer in advance is not 
possible due to unanticipated circumstances, the defendant shall notify 
the probation officer within 72 hours of becoming aware of a change or 
expected change.
    (8) The defendant shall not communicate or interact with someone 
the defendant knows is engaged in criminal activity. If the defendant 
knows someone has been convicted of a felony, the defendant shall not 
knowingly communicate or interact with that person without first 
getting the permission of the probation officer.
    (9) If the defendant is arrested or questioned by a law enforcement 
officer, the defendant shall notify the probation officer within 72 
hours.
    (10) The defendant shall not own, possess, or have access to a 
firearm, ammunition, destructive device, or dangerous weapon (i.e., 
anything that was designed, or was modified for, the specific purpose 
of causing bodily injury or death to another person, such as nunchakus 
or tasers).
    (11) The defendant shall not act or make any agreement with a law 
enforcement agency to act as a confidential human source or informant 
without first getting the permission of the court.
    (12) If the probation officer determines that the defendant poses a 
risk to another person (including an organization), the probation 
officer may require the defendant to notify the person about the risk 
and the defendant shall comply with that instruction. The probation 
officer may contact the person and confirm that the defendant has 
notified the person about the risk.
    (13) The defendant shall follow the instructions of the probation 
officer related to the conditions of supervision.
    (d) `Special' Conditions (Policy Statement)
    The following `special' conditions of supervised release are 
recommended in the circumstances described and, in addition, may 
otherwise be appropriate in particular cases:
    (1) Support of Dependents
    (A) If the defendant has one or more dependents--a condition 
specifying that the defendant shall support his or her dependents.
    (B) If the defendant is ordered by the government to make child 
support payments or to make payments to support a person caring for a 
child--a condition specifying that the defendant shall make the 
payments and comply with the other terms of the order.
    (2) Debt Obligations
    If an installment schedule of payment of restitution or a fine is 
imposed--a condition prohibiting the defendant from incurring new 
credit charges or opening additional lines of credit without approval 
of the probation officer unless the defendant is in compliance with the 
payment schedule.
    (3) Access to Financial Information
    If the court imposes an order of restitution, forfeiture, or notice 
to victims, or orders the defendant to pay a fine--a condition 
requiring the defendant to provide the probation officer access to any 
requested financial information.
    (4) Substance Abuse
    If the court has reason to believe that the defendant is an abuser 
of narcotics, other controlled substances or alcohol--(A) a condition 
requiring the defendant to participate in a program approved by the 
United States Probation Office for substance abuse, which program may 
include testing to determine whether the defendant has reverted to the 
use of drugs or alcohol; and (B) a condition specifying that the 
defendant shall not use or possess alcohol.
    (5) Mental Health Program Participation
    If the court has reason to believe that the defendant is in need of 
psychological or psychiatric treatment--a condition requiring that the 
defendant participate in a mental health program approved by the United 
States Probation Office.
    (6) Deportation
    If (A) the defendant and the United States entered into a 
stipulation of deportation pursuant to section 238(c)(5) of the 
Immigration and Nationality Act (8 U.S.C. 1228(c)(5)*); or (B) in the 
absence of a stipulation of deportation, if, after notice and hearing 
pursuant to such section, the Attorney General demonstrates by clear 
and convincing evidence that the alien is deportable--a condition 
ordering deportation by a United States district court or a United 
States magistrate judge.
    * So in original. Probably should be 8 U.S.C. 1228(d)(5).
    (7) Sex Offenses
    If the instant offense of conviction is a sex offense, as defined 
in Application Note 1 of the Commentary to Sec.  5D1.2 (Term of 
Supervised Release)--
    (A) A condition requiring the defendant to participate in a program 
approved by the United States Probation Office for the treatment and 
monitoring of sex offenders.
    (B) A condition limiting the use of a computer or an interactive 
computer service in cases in which the defendant used such items.
    (C) A condition requiring the defendant to submit to a search, at 
any time, with or without a warrant, and by any law enforcement or 
probation officer, of the defendant's person and any property, house, 
residence, vehicle, papers, computer, other electronic communication or 
data storage devices or media, and effects upon reasonable suspicion 
concerning a violation of a condition of supervised release or unlawful 
conduct by the defendant, or by any probation officer in the lawful 
discharge of the officer's supervision functions.
    (8) Unpaid Restitution, Fines, or Special Assessments
    If the defendant has any unpaid amount of restitution, fines, or 
special assessments, the defendant shall notify the probation officer 
of any material change in the defendant's economic circumstances that 
might affect the defendant's ability to pay.
    (e) Additional Conditions (Policy Statement)
    The following `special conditions' may be appropriate on a case-by-
case basis:
    (1) Community Confinement
    Residence in a community treatment center, halfway house or similar 
facility may be imposed as a condition of supervised release. See Sec.  
5F1.1 (Community Confinement).
    (2) Home Detention
    Home detention may be imposed as a condition of supervised release, 
but only as a substitute for imprisonment. See Sec.  5F1.2 (Home 
Detention).
    (3) Community Service
    Community service may be imposed as a condition of supervised 
release. See Sec.  5F1.3 (Community Service).
    (4) Occupational Restrictions
    Occupational restrictions may be imposed as a condition of 
supervised release. See Sec.  5F1.5 (Occupational Restrictions).
    (5) Curfew
    A condition imposing a curfew may be imposed if the court concludes 
that restricting the defendant to his place of residence during evening 
and nighttime hours is necessary to protect the public from crimes that 
the defendant might commit during those hours, or to assist in the 
rehabilitation of the defendant. Electronic monitoring may be used as a 
means of surveillance to ensure compliance with a curfew order.
    (6) Intermittent Confinement
    Intermittent confinement (custody for intervals of time) may be 
ordered as a condition of supervised release during

[[Page 19808]]

the first year of supervised release, but only for a violation of a 
condition of supervised release in accordance with 18 U.S.C. 3583(e)(2) 
and only when facilities are available. See Sec.  5F1.8 (Intermittent 
Confinement).'';
    and inserting at the end the following new subsection (b):
    ``(b) Discretionary Conditions
    (1) In General.--The court should conduct an individualized 
assessment to determine what, if any, other conditions of supervised 
release are warranted.
    Such conditions are warranted to the extent that they (A) are 
reasonably related to (i) the nature and circumstances of the offense 
and the history and characteristics of the defendant; (ii) the need for 
the sentence imposed to afford adequate deterrence to criminal conduct; 
(iii) the need to protect the public from further crimes of the 
defendant; and (iv) the need to provide the defendant with needed 
educational or vocational training, medical care, or other correctional 
treatment in the most effective manner; and (B) involve no greater 
deprivation of liberty than is reasonably necessary for the purposes 
set forth above and are consistent with any pertinent policy statements 
issued by the Sentencing Commission. See 18 U.S.C. 3583(d).
    (2) `Standard' Conditions (Policy Statement)
    The following are `standard' conditions of supervised release, 
which the court may modify, expand, or omit in appropriate cases:
    (A) The defendant shall report to the probation office in the 
federal judicial district where he or she is authorized to reside 
within 72 hours of release from imprisonment, unless the probation 
officer instructs the defendant to report to a different probation 
office or within a different time frame.
    (B) After initially reporting to the probation office, the 
defendant will receive instructions from the court or the probation 
officer about how and when to report to the probation officer, and the 
defendant shall report to the probation officer as instructed.
    (C) The defendant shall not knowingly leave the federal judicial 
district where he or she is authorized to reside without first getting 
permission from the court or the probation officer.
    (D) The defendant shall answer truthfully the questions asked by 
the probation officer.
    (E) The defendant shall live at a place approved by the probation 
officer. If the defendant plans to change where he or she lives or 
anything about his or her living arrangements (such as the people the 
defendant lives with), the defendant shall notify the probation officer 
at least 10 days before the change. If notifying the probation officer 
at least 10 days in advance is not possible due to unanticipated 
circumstances, the defendant shall notify the probation officer within 
72 hours of becoming aware of a change or expected change.
    (F) The defendant shall allow the probation officer to visit the 
defendant at any time at his or her home or elsewhere, and the 
defendant shall permit the probation officer to take any items 
prohibited by the conditions of the defendant's supervision that he or 
she observes in plain view.
    (G) The defendant shall work full time (at least 30 hours per week) 
at a lawful type of employment, unless the probation officer excuses 
the defendant from doing so. If the defendant does not have full-time 
employment he or she shall try to find full-time employment, unless the 
probation officer excuses the defendant from doing so. If the defendant 
plans to change where the defendant works or anything about his or her 
work (such as the position or the job responsibilities), the defendant 
shall notify the probation officer at least 10 days before the change. 
If notifying the probation officer in advance is not possible due to 
unanticipated circumstances, the defendant shall notify the probation 
officer within 72 hours of becoming aware of a change or expected 
change.
    (H) The defendant shall not communicate or interact with someone 
the defendant knows is engaged in criminal activity. If the defendant 
knows someone has been convicted of a felony, the defendant shall not 
knowingly communicate or interact with that person without first 
getting the permission of the probation officer.
    (I) If the defendant is arrested or questioned by a law enforcement 
officer, the defendant shall notify the probation officer within 72 
hours.
    (J) The defendant shall not own, possess, or have access to a 
firearm, ammunition, destructive device, or dangerous weapon (i.e., 
anything that was designed, or was modified for, the specific purpose 
of causing bodily injury or death to another person, such as nunchakus 
or tasers).
    (K) The defendant shall not act or make any agreement with a law 
enforcement agency to act as a confidential human source or informant 
without first getting the permission of the court.
    (L) If the probation officer determines that the defendant poses a 
risk to another person (including an organization), the probation 
officer may require the defendant to notify the person about the risk 
and the defendant shall comply with that instruction. The probation 
officer may contact the person and confirm that the defendant has 
notified the person about the risk.
    (M) The defendant shall follow the instructions of the probation 
officer related to the conditions of supervision.
    (3) `Special' Conditions (Policy Statement)
    One or more conditions from the following non-exhaustive list of 
`special' conditions of supervised release may be appropriate in a 
particular case, including in the circumstances described therein:
    (A) Support of Dependents
    (i) If the defendant has one or more dependents--a condition 
specifying that the defendant shall support his or her dependents.
    (ii) If the defendant is ordered by the government to make child 
support payments or to make payments to support a person caring for a 
child--a condition specifying that the defendant shall make the 
payments and comply with the other terms of the order.
    (B) Debt Obligations
    If an installment schedule of payment of restitution or a fine is 
imposed--a condition prohibiting the defendant from incurring new 
credit charges or opening additional lines of credit without approval 
of the probation officer unless the defendant is in compliance with the 
payment schedule.
    (C) Access to Financial Information
    If the court imposes an order of restitution, forfeiture, or notice 
to victims, or orders the defendant to pay a fine--a condition 
requiring the defendant to provide the probation officer access to any 
requested financial information.
    (D) Substance Abuse
    If the court has reason to believe that the defendant is an abuser 
of narcotics, other controlled substances or alcohol--(i) a condition 
requiring the defendant to participate in a program approved by the 
United States Probation Office for substance abuse, which program may 
include testing to determine whether the defendant has reverted to the 
use of drugs or alcohol; and (ii) a condition specifying that the 
defendant shall not use or possess alcohol.
    (E) Mental Health Program Participation
    If the court has reason to believe that the defendant is in need of 
psychological or psychiatric treatment--a condition requiring that the 
defendant participate in a mental health program approved by the United 
States Probation Office.
    (F) Deportation
    If (i) the defendant and the United States entered into a 
stipulation of

[[Page 19809]]

deportation pursuant to section 238(c)(5) of the Immigration and 
Nationality Act (8 U.S.C. 1228(c)(5)*); or (ii) in the absence of a 
stipulation of deportation, if, after notice and hearing pursuant to 
such section, the Attorney General demonstrates by clear and convincing 
evidence that the alien is deportable--a condition ordering deportation 
by a United States district court or a United States magistrate judge.
    * So in original. Probably should be 8 U.S.C. 1228(d)(5).
    (G) Sex Offenses
    If the instant offense of conviction is a sex offense--
    (i) A condition requiring the defendant to participate in a program 
approved by the United States Probation Office for the treatment and 
monitoring of sex offenders.
    (ii) A condition limiting the use of a computer or an interactive 
computer service in cases in which the defendant used such items.
    (iii) A condition requiring the defendant to submit to a search, at 
any time, with or without a warrant, and by any law enforcement or 
probation officer, of the defendant's person and any property, house, 
residence, vehicle, papers, computer, other electronic communication or 
data storage devices or media, and effects upon reasonable suspicion 
concerning a violation of a condition of supervised release or unlawful 
conduct by the defendant, or by any probation officer in the lawful 
discharge of the officer's supervision functions.
    (iv) A condition prohibiting the defendant from communicating, or 
otherwise interacting, with any victim of the offense, either directly 
or through someone else.
    (H) Unpaid Restitution, Fines, or Special Assessments
    If the defendant has any unpaid amount of restitution, fines, or 
special assessments, the defendant shall notify the probation officer 
of any material change in the defendant's economic circumstances that 
might affect the defendant's ability to pay.
    (I) Educational or Vocational Training
    If the court has reason to believe that a course of study or 
vocational training would be appropriate and would equip the defendant 
for suitable employment, a condition specifying that the defendant 
participate in a General Education Development (or similar) program, 
vocational training, or skills training, unless the probation officer 
excuses the defendant from doing so.
    (J) Victim Contact
    If there is an identifiable victim of the offense, a condition 
prohibiting the defendant from communicating, or otherwise interacting, 
with any of the victims, either directly or through someone else.
    (K) Community Confinement
    Residence in a community treatment center, halfway house or similar 
facility may be imposed as a condition of supervised release. See Sec.  
5F1.1 (Community Confinement).
    (L) Home Detention
    Home detention may be imposed as a condition of supervised release, 
but only as a substitute for imprisonment. See Sec.  5F1.2 (Home 
Detention).
    (M) Community Service
    Community service may be imposed as a condition of supervised 
release. See Sec.  5F1.3 (Community Service).
    (N) Occupational Restrictions
    Occupational restrictions may be imposed as a condition of 
supervised release. See Sec.  5F1.5 (Occupational Restrictions).
    (O) Curfew
    A condition imposing a curfew may be imposed if the court concludes 
that restricting the defendant to his place of residence during evening 
and nighttime hours is necessary to protect the public from crimes that 
the defendant might commit during those hours, or to assist in the 
rehabilitation of the defendant. Electronic monitoring may be used as a 
means of surveillance to ensure compliance with a curfew order.
    (P) Intermittent Confinement
    Intermittent confinement (custody for intervals of time) may be 
ordered as a condition of supervised release during the first year of 
supervised release, but only for a violation of a condition of 
supervised release in accordance with 18 U.S.C. 3583(e)(2) and only 
when facilities are available. See Sec.  5F1.8 (Intermittent 
Confinement).''.
    The Commentary to Sec.  5D1.3 captioned ``Applications Note'' is 
amended--
    in the caption by striking ``Note'' and inserting ``Notes'';
    by redesignating Note 1 as Note 2;
    by inserting at the beginning the following new Note 1:
    ``1. Individualized Assessment.--When conducting an individualized 
assessment under this section, the court must consider the same factors 
used to determine whether to impose a term of supervised release, and 
shall impose conditions of supervision not required by statute only to 
the extent such conditions meet the requirements listed at 18 U.S.C. 
3583(d). See 18 U.S.C. 3583(c), (d); Application Note 1 to Sec.  5D1.1 
(Imposition of a Term of Supervised Release).'';
    in Note 2 (as so redesignated) by striking ``(c)(4)'' both places 
it appears and inserting ``(b)(2)(D)'';
    and by inserting at the end the following new Note 3:
    ``3. Application of Subsection (b)(3)(G).-- For purposes of 
subsection (b)(3)(G):
    `Sex offense' means (A) an offense, perpetrated against a minor, 
under (i) chapter 109A of title 18, United States Code; (ii) chapter 
110 of such title, not including a recordkeeping offense; (iii) chapter 
117 of such title, not including transmitting information about a minor 
or filing a factual statement about an alien individual; (iv) an 
offense under 18 U.S.C. 1201; or (v) an offense under 18 U.S.C. 1591; 
or (B) an attempt or a conspiracy to commit any offense described in 
subparagraphs (A)(i) through (v) of this note. Such term does not 
include an offense under 18 U.S.C. 2250 (Failure to register).
    `Minor' means (A) an individual who had not attained the age of 18 
years; (B) an individual, whether fictitious or not, who a law 
enforcement officer represented to a participant (i) had not attained 
the age of 18 years; and (ii) could be provided for the purposes of 
engaging in sexually explicit conduct; or (C) an undercover law 
enforcement officer who represented to a participant that the officer 
had not attained the age of 18 years.''.
    Chapter Five, Part D is amended by inserting at the end the 
following new Sec.  5D1.4:

``Sec.  5D1.4. Modification, Early Termination, and Extension of 
Supervised Release (Policy Statement)

    (a) Modification of Conditions.--At any time prior to the 
expiration or termination of the term of supervised release, the court 
may modify, reduce, or enlarge the conditions of supervised release 
whenever warranted by an individualized assessment of the 
appropriateness of existing conditions. See 18 U.S.C. 3583(e)(2). The 
court is encouraged to conduct such an assessment in consultation with 
the probation officer after the defendant's release from imprisonment.
    (b) Early Termination.--Any time after the expiration of one year 
of supervised release and after an individualized assessment of the 
need for ongoing supervision, the court may terminate the remaining 
term of supervision and discharge the defendant if the court 
determines, following consultation with the government and the 
probation officer, that the termination is warranted by the conduct of 
the defendant and in the interest of justice. See 18 U.S.C. 3583(e)(1).
    (c) Extending a Term of Supervised Release.--The court may, at any 
time prior to the expiration or termination of

[[Page 19810]]

a term of supervised release, extend the term of supervised release if 
less than the maximum authorized term of supervised release was 
previously imposed and the extension is warranted by an individualized 
assessment of the need for further supervision. See 18 U.S.C. 
3583(e)(2).
Commentary
    Application Notes:
    1. Individualized Assessment.--
    (A) In General.--When making an individualized assessment under 
this section, the factors to be considered are the same factors used to 
determine whether to impose a term of supervised release. See 18 U.S.C. 
3583(c), (e); Application Note 1 to Sec.  5D1.1 (Imposition of a Term 
of Supervised Release).
    (B) Early Termination.--When determining whether to terminate the 
remaining term of supervised release under subsection (b), the court 
may wish to consider such factors as:
    (i) any history of court-reported violations over the term of 
supervision;
    (ii) the ability of the defendant to lawfully self-manage (e.g., 
the ability to problem-solve and avoid situations that may result in a 
violation of a condition of supervised release or new criminal 
charges);
    (iii) the defendant's substantial compliance with all conditions of 
supervision;
    (iv) the defendant's engagement in appropriate prosocial activities 
and the existence or lack of prosocial support to remain lawful beyond 
the period of supervision;
    (v) a demonstrated reduction in risk level or maintenance of the 
lowest category of risk over the period of supervision; and
    (vi) whether termination will jeopardize public safety, as 
evidenced by the nature of the defendant's offense, the defendant's 
criminal history, the defendant's record while incarcerated, the 
defendant's efforts to reintegrate into the community and avoid 
recidivism, any statements or information provided by the victims of 
the offense, and other factors the court finds relevant.
    2. Notification of Victims.--When determining whether to modify any 
condition of supervised release that would be relevant to a victim or 
to terminate the remaining term of supervised release, the Commission 
encourages the court, in coordination with the government, 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.
    3. Application of Subsection (c).--Subsection (c) addresses a 
court's authority to extend a term of supervised release. In some 
cases, extending a term may be more appropriate than taking other 
measures, such as revoking the term of supervised release.''.
    The Commentary to Sec.  5G1.3 captioned ``Application Notes'' is 
amended in Note 4(C) by striking ``Application Note 4 and subsection 
(f) of Sec.  7B1.3 (Revocation of Probation or Supervised Release)'' 
and inserting ``Application Note 3 and subsection (f) of Sec.  7B1.3 
(Revocation of Probation)''.
    Section 5H1.3 is amended in the paragraph that begins ``Mental and 
emotional conditions may be relevant in determining the conditions'' by 
striking ``5D1.3(d)(5)'' and inserting ``5D1.3(b)(3)(E)''.
    Section 5H1.4 is amended in the paragraph that begins ``Drug or 
alcohol dependence or abuse'' by striking ``Sec.  5D1.3(d)(4)'' and 
inserting ``Sec.  5D1.3(b)(3)(D)''.
    Chapter Seven, Part A is amended--
    in Subpart 1 by striking the following:
    ``Under 28 U.S.C. 994(a)(3), the Sentencing Commission is required 
to issue guidelines or policy statements applicable to the revocation 
of probation and supervised release. At this time, the Commission has 
chosen to promulgate policy statements only. These policy statements 
will provide guidance while allowing for the identification of any 
substantive or procedural issues that require further review. The 
Commission views these policy statements as evolutionary and will 
review relevant data and materials concerning revocation determinations 
under these policy statements. Revocation guidelines will be issued 
after federal judges, probation officers, practitioners, and others 
have the opportunity to evaluate and comment on these policy 
statements.'';
    and inserting the following:
    ``Under 28 U.S.C. 994(a)(3), the Sentencing Commission is required 
to issue guidelines or policy statements applicable to the revocation 
of probation and supervised release. The Commission chose to promulgate 
policy statements only. These policy statements were intended to 
provide guidance and allow for the identification of any substantive or 
procedural issues that require further review. The Commission viewed 
these policy statements as evolutionary and intended to review relevant 
data and materials concerning revocation determinations under these 
policy statements. Updated policies would be issued after federal 
judges, probation officers, practitioners, and others had the 
opportunity to evaluate and comment on these policy statements.'';
    in Subpart 3(a), in the paragraph that begins ``Moreover, the 
Commission'' by striking ``anticipates'' and inserting ``anticipated''; 
by striking ``will provide'' and inserting ``would provide''; by 
striking ``represent'' and inserting ``represented''; and by striking 
``intends to promulgate revocation guidelines'' and inserting 
``intended to promulgate updated revocation policies'';
    in Subpart 3(b)--
    in the paragraph that begins ``The Commission debated'' by striking 
``debated'' and inserting ``initially debated'';
    and in the paragraph that begins ``Given the relatively narrow 
ranges'' by striking ``this time'' and inserting ``that time'';
    in Subpart 4--
    in the paragraph that begins ``The revocation policy statements'' 
by striking ``categorize'' and inserting ``categorized''; and by 
striking ``fix'' and inserting ``fixed'';
    and in the paragraph that begins ``The Commission'' by striking 
``has elected'' and inserting ``initially elected''; by striking ``the 
Commission determined'' and inserting ``the Commission had 
determined''; and by striking ``the Commission has initially 
concluded'' and inserting ``the Commission initially concluded'';
    by striking Subpart 5 as follows:
    ``5. A Concluding Note
    The Commission views these policy statements for revocation of 
probation and supervised release as the first step in an evolutionary 
process. The Commission expects to issue revocation guidelines after 
judges, probation officers, and practitioners have had an opportunity 
to apply and comment on the policy statements.
    In developing these policy statements, the Commission assembled two 
outside working groups of experienced probation officers representing 
every circuit in the nation, officials from the Probation Division of 
the Administrative Office of the U.S. Courts, the General Counsel's 
office at the Administrative Office of the U.S. Courts, and the U.S. 
Parole Commission. In addition, a number of federal judges, members of 
the Criminal Law and Probation Administration Committee of the Judicial 
Conference, and representatives from the Department of Justice and 
federal and community defenders provided considerable input into this 
effort.'';

[[Page 19811]]

    and by inserting at the end the following new Subpart 5:
    ``5. Updating the Approach
    The Commission viewed the original policy statements for revocation 
of probation and supervised release as the first step in an 
evolutionary process. The Commission intended to revise its approach 
after judges, probation officers, and practitioners had an opportunity 
to apply and comment on the policy statements. Since the promulgation 
of those policy statements, a broad array of stakeholders has 
identified the need for more flexible, individualized responses to 
violations of supervised release.
    In response, the Commission updated the policy statements in this 
chapter to ensure judges have the discretion necessary to properly 
manage supervised release. The revised policy statements encourage 
judges to take an individualized approach in: (1) responding to reports 
of non-compliance before initiating revocation proceedings; (2) 
addressing violations found during revocation proceedings; and (3) 
imposing a sentence of imprisonment upon revocation. These changes are 
intended to better allocate taxpayer dollars and probation resources, 
encourage compliance and improve public safety, and facilitate the 
reentry and rehabilitation of defendants.
    This chapter proceeds in two parts: Part B addresses violations of 
probation, and Part C addresses violations of supervised release. Both 
parts maintain an approach in which the court addresses primarily the 
defendant's failure to comply with court-ordered conditions, while 
reflecting, to a limited degree, the seriousness of the underlying 
violation and the criminal history of the individual. The Commission 
determined that violations of probation and supervised release should 
be addressed separately to reflect their different purposes. While 
probation serves all the goals of sentencing, including punishment, 
supervised release primarily `fulfills rehabilitative ends, distinct 
from those served by incarceration.' United States v. Johnson, 529 U.S. 
53, 59 (2000). In light of these differences, Part B continues to 
recommend revocation for most probation violations. Part C encourages 
courts to consider a graduated response to a violation of supervised 
release, including considering all available options focused on 
facilitating a defendant's transition into the community and promoting 
public safety. Parts B and C both recognize the important role of the 
court, which is best situated to consider the individual defendant's 
risks and needs and respond accordingly within its broad discretion.''.
    Chapter Seven, Part B is amended--
    in the heading by striking ``Probation and Supervised Release 
Violations'' and inserting ``Violations of Probation'';
    and in the Introductory Commentary--
    in the paragraph that begins ``The policy statements'' by striking 
``chapter'' and inserting ``part''; and by striking ``supervision'' and 
inserting ``probation'';
    by striking the following paragraph:
    ``Because these policy statements focus on the violation of the 
court-ordered supervision, this chapter, to the extent permitted by 
law, treats violations of the conditions of probation and supervised 
release as functionally equivalent.'';
    by striking the last paragraph as follows:
    ``This chapter is applicable in the case of a defendant under 
supervision for a felony or Class A misdemeanor. Consistent with Sec.  
1B1.9 (Class B or C Misdemeanors and Infractions), this chapter does 
not apply in the case of a defendant under supervision for a Class B or 
C misdemeanor or an infraction.'';
    and by inserting at the end the following new paragraph:
    ``This part is applicable in the case of a defendant on probation 
for a felony or Class A misdemeanor. Consistent with Sec.  1B1.9 (Class 
B or C Misdemeanors and Infractions), this part does not apply in the 
case of a defendant on probation for a Class B or C misdemeanor or an 
infraction.''.
    Section 7B1.1 is amended--
    in subsection (a) by striking ``and supervised release'';
    in subsection (a)(3) by striking ``supervision'' and inserting 
``probation'';
    and in subsection (b) by striking ``supervision'' and inserting 
``probation''.
    The Commentary to Sec.  7B1.1 captioned ``Application Notes'' is 
amended--
    in Note 1 by striking ``18 U.S.C. 3563(a)(1) and 3583(d), a 
mandatory condition of probation and supervised release'' and inserting 
``18 U.S.C. 3563(a)(1), a mandatory condition of probation'';
    and in Note 5 by striking ``under supervision'' and inserting ``on 
probation''.
    Section 7B1.2 is amended in the heading by striking ``and 
Supervised Release''.
    Section 7B1.3 is amended--
    in the heading by striking ``or Supervised Release'';
    in subsection (a)(1) by striking ``or supervised release'';
    in subsection (a)(2) by striking ``(A) revoke probation or 
supervised release; or (B) extend the term of probation or supervised 
release and/or modify the conditions of supervision'' and inserting 
``(A) revoke probation; or (B) extend the term of probation and/or 
modify the conditions thereof'';
    in subsection (b) by striking ``or supervised release'';
    in subsection (e) by striking ``or supervised release'' both places 
such phrase appears;
    in subsection (f) by striking ``or supervised release'' both places 
such phrase appears;
    in subsection (g) by striking the following:
    ``(1) If probation is revoked and a term of imprisonment is 
imposed, the provisions of Sec. Sec.  5D1.1-1.3 shall apply to the 
imposition of a term of supervised release.
    (2) If supervised release is revoked, the court may include a 
requirement that the defendant be placed on a term of supervised 
release upon release from imprisonment. The length of such a term of 
supervised release shall not exceed the term of supervised release 
authorized by statute for the offense that resulted in the original 
term of supervised release, less any term of imprisonment that was 
imposed upon revocation of supervised release. 18 U.S.C. 3583(h).'';
    and inserting the following:
    ``If probation is revoked and a term of imprisonment is imposed, 
the provisions of Sec. Sec.  5D1.1-1.3 shall apply to the imposition of 
a term of supervised release.''.
    The Commentary to Sec.  7B1.3 captioned ``Application Notes'' is 
amended--
    in Note 1 by striking ``or supervised release''; and by striking 
``supervision'' both places such term appears and inserting 
``probation'';
    by striking Note 2 as follows:
    ``2. The provisions for the revocation, as well as early 
termination and extension, of a term of supervised release are found in 
18 U.S.C. 3583(e), (g)-(i). Under 18 U.S.C. 3583(h) (effective 
September 13, 1994), the court, in the case of revocation of supervised 
release, may order an additional period of supervised release to follow 
imprisonment.'';
    by redesignating Notes 3, 4, and 5 as Notes 2, 3, and 4, 
respectively;
    in Note 2 (as so redesignated) by striking ``or supervised 
release''; and by striking ``Bureau of Prisons'' and inserting 
``Federal Bureau of Prisons'';
    in Note 3 (as so redesignated) by striking ``or supervised 
release'' both places such phrase appears;
    and in Note 4 (as so redesignated) by striking ``. Intermittent 
confinement is

[[Page 19812]]

authorized as a condition of supervised release during the first year 
of supervised release, but only for a violation of a condition of 
supervised release in accordance with 18 U.S.C. 3583(e)(2) and only 
when facilities are available. See Sec.  5F1.8 (Intermittent 
Confinement)'' and inserting ``; see also Sec.  5F1.8 (Intermittent 
Confinement)''.
    Section 7B1.4 is amended in the heading by striking 
``Imprisonment'' and inserting ``Imprisonment--Probation''.
    Section 7B1.4(a) is amended in the Table--
    in the heading by striking ``Revocation Table'' and inserting 
``Probation Revocation Table'';
    and by striking the following:
    ``Grade A (1) Except as provided in subdivision (2) below:
    12-18 15-21 18-24 24-30 30-37 33-41.
    (2) Where the defendant was on probation or supervised release as a 
result of a sentence for a Class A felony:
    24-30 27-33 30-37 37-46 46-57 51-63.
    * The criminal history category is the category applicable at the 
time the defendant originally was sentenced to a term of 
supervision.'';
    and inserting the following:
    ``Grade A 12-18 15-21 18-24 24-30 30-37 33-41.
    * The criminal history category is the category applicable at the 
time the defendant originally was sentenced to a term of probation.''.
    The Commentary to Sec.  7B1.4 captioned ``Application Notes'' is 
amended--
    in Note 1 by striking the following:
    ``The criminal history category to be used in determining the 
applicable range of imprisonment in the Revocation Table is the 
category determined at the time the defendant originally was sentenced 
to the term of supervision. The criminal history category is not to be 
recalculated because the ranges set forth in the Revocation Table have 
been designed to take into account that the defendant violated 
supervision. In the rare case in which no criminal history category was 
determined when the defendant originally was sentenced to the term of 
supervision being revoked, the court shall determine the criminal 
history category that would have been applicable at the time the 
defendant originally was sentenced to the term of supervision. (See the 
criminal history provisions of Sec. Sec.  4A1.1-4B1.4.)'';
    and inserting the following:
    ``The criminal history category to be used in determining the 
applicable range of imprisonment in the Probation Revocation Table is 
the category determined at the time the defendant originally was 
sentenced to the term of probation. The criminal history category is 
not to be recalculated because the ranges set forth in the Probation 
Revocation Table have been designed to take into account that the 
defendant violated probation. Example: A defendant, who was originally 
sentenced in 2022, was determined to have a criminal history category 
of II due in part to having committed the offense `while under any 
criminal justice sentence.' See Sec.  4A1.1(d) (Criminal History 
Category) (Nov. 2021). For purposes of determining the applicable range 
of imprisonment in the Probation Revocation Table, the defendant's 
criminal history category is category II, regardless of whether the 
defendant's criminal history category would be reduced for other 
purposes based on the retroactive application of Part A of Amendment 
821 pursuant to Sec.  1B1.10 (Reduction of Imprisonment as a Result of 
Amended Guideline Range (Policy Statement)). See USSG App. C, Amendment 
825 (effective November 1, 2023).
    In the rare case in which no criminal history category was 
determined when the defendant originally was sentenced to the term of 
probation being revoked, the court shall determine the criminal history 
category that would have been applicable at the time the defendant 
originally was sentenced to the term of probation. (See the criminal 
history provisions of Sec. Sec.  4A1.1-4B1.4.)'';
    in Note 2 by striking ``Revocation Table'' and inserting 
``Probation Revocation Table''; and by striking ``supervision'' both 
places such term appears and inserting ``probation'';
    in Note 3 by striking ``under supervision'' and inserting ``on 
probation'';
    in Note 5 by striking ``or supervised release'' both places such 
phrase appears; and by striking ``18 U.S.C. 3565(b), 3583(g)'' and 
inserting ``18 U.S.C. 3565(b)'';
    and in Note 6 by striking ``under 18 U.S.C. 3565(b) and 3583(g). 18 
U.S.C. 3563(a), 3583(d)'' and inserting ``under 18 U.S.C. 3565(b). 18 
U.S.C. 3563(a)''.
    Section 7B1.5 is amended--
    in the heading by striking ``Under Supervision'' and inserting ``on 
Probation'';
    by striking subsections (a), (b), and (c) as follows:
    ``(a) Upon revocation of probation, no credit shall be given 
(toward any sentence of imprisonment imposed) for any portion of the 
term of probation served prior to revocation.
    (b) Upon revocation of supervised release, no credit shall be given 
(toward any term of imprisonment ordered) for time previously served on 
post-release supervision.
    (c) Provided, that in the case of a person serving a period of 
supervised release on a foreign sentence under the provisions of 18 
U.S.C. 4106A, credit shall be given for time on supervision prior to 
revocation, except that no credit shall be given for any time in escape 
or absconder status.'';
    and inserting the following:
    ``Upon revocation of probation, no credit shall be given (toward 
any sentence of imprisonment imposed) for any portion of the term of 
probation served prior to revocation.''.
    The Commentary to Sec.  7B1.5 is amended by striking the Commentary 
captioned ``Application Note'' in its entirety as follows:
    ``Application Note:
    1. Subsection (c) implements 18 U.S.C. 4106A(b)(1)(C), which 
provides that the combined periods of imprisonment and supervised 
release in transfer treaty cases shall not exceed the term of 
imprisonment imposed by the foreign court.''.
    The Commentary to Sec.  7B1.5 captioned ``Background'' is amended 
by striking ``or supervised release''; by striking ``with supervision'' 
and inserting ``with probation''; and by striking ``under supervision'' 
and inserting ``on probation''.
    Chapter Seven is amended by inserting at the end the following new 
Part C:
``Part C--Violations of Supervised Release
Introductory Commentary
    At the time of original sentencing, the court may--and in some 
cases, must--impose a term of supervised release to follow the sentence 
of imprisonment. See 18 U.S.C. 3583(a). During that term, the court may 
receive allegations that the defendant has violated a condition of 
supervision. In responding to such allegations, addressing a violation 
found during revocation proceedings, and imposing a sentence upon 
revocation, the court should conduct the same kind of individualized 
assessment used `in determining whether to include a term of supervised 
release, and, if a term of supervised release is to be included, in 
determining the length of the term and the conditions of supervised 
release.' See 18 U.S.C. 3583(c), (e); Application Note 1 to Sec.  5D1.1 
(Imposition of a Term of Supervised Release).
    If the court finds that the defendant violated a condition of 
supervised release, it may continue the defendant on supervised release 
under existing

[[Page 19813]]

conditions, modify the conditions, extend the term, or revoke 
supervised release and impose a term of imprisonment. See 18 U.S.C. 
3583(e)(3). The court also has authority to terminate a term of 
supervised release and discharge the defendant at any time after the 
expiration of one year of supervised release if it is satisfied that 
such action is warranted by the conduct of the defendant and the 
interest of justice. 18 U.S.C. 3583(e)(1).
    Because supervised release is intended to promote rehabilitation 
and ease the defendant's transition back into the community, the 
Commission encourages courts--where possible--to consider a wide array 
of options to respond to non-compliant behavior and violations of the 
conditions of supervised release. These interim steps before revocation 
are intended to allow courts to address the defendant's failure to 
comply with court-imposed conditions and to better address the needs of 
the defendant while also maintaining public safety. If revocation is 
mandated by statute or the court otherwise determines revocation to be 
appropriate, the sentence imposed upon revocation should be tailored to 
address the failure to abide by the conditions of the court-ordered 
supervision; imposition of an appropriate punishment for new criminal 
conduct is not the primary goal of a revocation sentence. The 
determination of the appropriate sentence on any new criminal 
conviction that is also a basis of the violation should be a separate 
determination for the court having jurisdiction over such conviction.

Sec.  7C1.1. Classification of Violations (Policy Statement)

    (a) There are four grades of supervised release violations:
    (1) Grade A Violations--conduct constituting (A) a federal, state, 
or local offense punishable by a term of imprisonment exceeding one 
year that (i) is a crime of violence, (ii) is a controlled substance 
offense, or (iii) involves possession of a firearm or destructive 
device of a type described in 26 U.S.C. 5845(a); or (B) any other 
federal, state, or local offense punishable by a term of imprisonment 
exceeding twenty years;
    (2) Grade B Violations--conduct constituting any other federal, 
state, or local offense punishable by a term of imprisonment exceeding 
one year;
    (3) Grade C Violations--conduct constituting (A) a federal, state, 
or local offense punishable by a term of imprisonment of one year or 
less; or (B) a violation of any other condition of supervised release.
    (b) Where there is more than one violation of the conditions of 
supervised release, or the violation includes conduct that constitutes 
more than one offense, the grade of the violation is determined by the 
violation having the most serious grade.
Commentary
    Application Notes:
    1. Under 18 U.S.C. Sec.  3583(d), a mandatory condition of 
supervised release is that the defendant not commit another federal, 
state, or local crime. A violation of this condition may be charged 
whether or not the defendant has been the subject of a separate 
federal, state, or local prosecution for such conduct. The grade of 
violation does not depend upon the conduct that is the subject of 
criminal charges or of which the defendant is convicted in a criminal 
proceeding. Rather, the grade of the violation is to be based on the 
defendant's actual conduct.
    2. `Crime of violence' is defined in Sec.  4B1.2 (Definitions of 
Terms Used in Section 4B1.1). See Sec.  4B1.2(a) and Application Note 1 
of the Commentary to Sec.  4B1.2.
    3. `Controlled substance offense' is defined in Sec.  4B1.2 
(Definitions of Terms Used in Section 4B1.1). See Sec.  4B1.2(b) and 
Application Note 1 of the Commentary to Sec.  4B1.2.
    4. A `firearm or destructive device of a type described in 26 
U.S.C. 5845(a)' includes a shotgun, or a weapon made from a shotgun, 
with a barrel or barrels of less than 18 inches in length; a weapon 
made from a shotgun or rifle with an overall length of less than 26 
inches; a rifle, or a weapon made from a rifle, with a barrel or 
barrels of less than 16 inches in length; a machine gun; a muffler or 
silencer for a firearm; a destructive device; and certain large bore 
weapons.
    5. Where the defendant is on supervised release in connection with 
a felony conviction, or has a prior felony conviction, possession of a 
firearm (other than a firearm of a type described in 26 U.S.C. 5845(a)) 
will generally constitute a Grade B violation, because 18 U.S.C. 922(g) 
prohibits a convicted felon from possessing a firearm. The term 
`generally' is used in the preceding sentence, however, because there 
are certain limited exceptions to the applicability of 18 U.S.C. 
922(g). See, e.g., 18 U.S.C. 925(c).

Sec.  7C1.2. Reporting of Violations of Supervised Release (Policy 
Statement)

    (a) The probation officer shall promptly report to the court any 
alleged Grade A or B violation.
    (b) The probation officer shall promptly report to the court any 
alleged Grade C violation unless the officer determines: (1) that such 
violation is minor, and not part of a continuing pattern of violations; 
and (2) that non-reporting will not present an undue risk to an 
individual or the public or be inconsistent with any directive of the 
court relative to the reporting of violations.
Commentary
    Application Note:
    1. Under subsection (b), a Grade C violation must be promptly 
reported to the court unless the probation officer makes an affirmative 
determination that the alleged violation meets the criteria for non-
reporting. For example, an isolated failure to file a monthly report or 
a minor traffic infraction generally would not require reporting.

Sec.  7C1.3. Responses to Violations of Supervised Release (Policy 
Statement)

    (a) Report of Non-Compliance.--Upon receiving a report that the 
defendant is in non-compliance with a condition of supervised release, 
the court should conduct an individualized assessment to determine what 
response, if any, is appropriate.
    (b) Finding of a Violation.--Upon a finding of a violation for 
which revocation is required by statute (see 18 U.S.C. 3583(g)), the 
court shall revoke supervised release. Upon a finding of any other 
violation, the court should conduct an individualized assessment, 
taking into consideration the grade of the violation, to determine 
whether to revoke supervised release. Revocation is generally 
appropriate for a Grade A violation, often appropriate for a Grade B 
violation, and may be appropriate for a Grade C violation.
Commentary
    Application Notes:
    1. Individualized Assessment.--When making an individualized 
assessment under this section, the factors to be considered are the 
same as the factors considered in determining whether to impose a term 
of supervised release. See 18 U.S.C. 3583(c), (e); Application Note 1 
to Sec.  5D1.1 (Imposition of a Term of Supervised Release).
    2. Responses.--Upon a report of non-compliance or a finding of a 
violation, the court may take any appropriate action provided under 18 
U.S.C. Sec.  3583, which includes extension, modification, revocation, 
or termination of supervised release. If revocation is not statutorily 
required, the court may also consider an informal response, such as 
issuing a warning while maintaining supervised release without 
modification, continuing the violation hearing to

[[Page 19814]]

provide the defendant time to come into compliance, or directing the 
defendant to additional resources needed to come into compliance.
    3. Issuing Summons.--If the defendant's presence in court is 
required to address a report of non-compliance, the court should 
consider issuing a summons rather than an arrest warrant where 
appropriate.

Sec.  7C1.4. Revocation of Supervised Release (Policy Statement)

    (a) In the case of a revocation of supervised release, the court 
shall conduct an individualized assessment to determine the appropriate 
length of the term of imprisonment, given the recommended range of 
imprisonment set forth in Sec.  7C1.5 (Term of Imprisonment--Supervised 
Release (Policy Statement)).
    (b) Any term of imprisonment imposed upon the revocation of 
supervised release generally should be ordered to be served 
consecutively to any sentence of imprisonment that the defendant is 
serving, whether or not the sentence of imprisonment being served 
resulted from the conduct that is the basis of the revocation of 
supervised release.
    (c) If supervised release is revoked, the court may include a 
requirement that the defendant be placed on a term of supervised 
release upon release from imprisonment. The length of such a term of 
supervised release shall not exceed the term of supervised release 
authorized by statute for the offense that resulted in the original 
term of supervised release, less any term of imprisonment that was 
imposed upon revocation of supervised release. 18 U.S.C. 3583(h).
Commentary
    Application Notes:
    1. Individualized Assessment.--When making an individualized 
assessment under subsection (a), the factors to be considered are the 
same as the factors considered in determining whether to impose a term 
of supervised release. See 18 U.S.C. 3583(c), (e); Application Note 1 
to Sec.  5D1.1 (Imposition of a Term of Supervised Release).
    2. The provisions for the revocation, as well as early termination 
and extension, of a term of supervised release are found in 18 U.S.C. 
3583(e), (g)-(i). Under 18 U.S.C. 3583(h) (effective September 13, 
1994), the court, in the case of revocation of supervised release, may 
order an additional period of supervised release to follow 
imprisonment.
    3. In the case of a revocation based, at least in part, on a 
violation of a condition specifically pertaining to community 
confinement, intermittent confinement, or home detention, use of the 
same or a less restrictive sanction is not recommended.
    4. Any restitution, fine, community confinement, home detention, or 
intermittent confinement previously imposed in connection with the 
sentence for which revocation is ordered that remains unpaid or 
unserved at the time of revocation shall be ordered to be paid or 
served in addition to the sanction determined under Sec.  7C1.5 (Term 
of Imprisonment--Supervised Release), and any such unserved period of 
community confinement, home detention, or intermittent confinement may 
be converted to an equivalent period of imprisonment.

Sec.  7C1.5. Term of Imprisonment--Supervised Release (Policy 
Statement)

    Unless otherwise required by statute, and subject to an 
individualized assessment, the recommended range of imprisonment 
applicable upon revocation is set forth in the following table:
Supervised Release Revocation Table (In Months of Imprisonment)

                                                               Criminal History Category *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                   Grade of violation                            I              II              III             IV               V              VI
--------------------------------------------------------------------------------------------------------------------------------------------------------
Grade C.................................................             3-9            4-10            5-11            6-12            7-13            8-14
Grade B.................................................            4-10            6-12            8-14           12-18           18-24           21-27
                                                         -----------------------------------------------------------------------------------------------
Grade A.................................................  (1) Except as provided in subdivision (2) below:
                                                         -----------------------------------------------------------------------------------------------
                                                                   12-18           15-21           18-24           24-30           30-37           33-41
                                                         -----------------------------------------------------------------------------------------------
                                                          (2) Where the defendant was on supervised release as a result of a sentence for a Class A
                                                          felony:
                                                         -----------------------------------------------------------------------------------------------
                                                                   24-30           27-33           30-37           37-46           46-57          51-63.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* The criminal history category is the category applicable at the time the defendant originally was sentenced to a term of supervised release.

Commentary
    Application Notes:
    1. The criminal history category to be used in determining the 
applicable range of imprisonment in the Supervised Release Revocation 
Table is the category determined at the time the defendant originally 
was sentenced to the term of supervision. The criminal history category 
is not to be recalculated because the ranges set forth in the 
Supervised Release Revocation Table have been designed to take into 
account that the defendant violated supervision. Example: A defendant, 
who was originally sentenced in 2022, was determined to have a criminal 
history category of II due in part to having committed the offense 
`while under any criminal justice sentence.' See Sec.  4A1.1(d) 
(Criminal History Category) (Nov. 2021). For purposes of determining 
the applicable range of imprisonment in the Supervised Release 
Revocation Table, the defendant's criminal history category is category 
II, regardless of whether the defendant's criminal history category 
would be reduced for other purposes based on the retroactive 
application of Part A of Amendment 821 pursuant to Sec.  1B1.10 
(Reduction of Imprisonment as a Result of Amended Guideline Range 
(Policy Statement)). See USSG App. C, Amendment 825 (effective November 
1, 2023).
    In the rare case in which no criminal history category was 
determined when the defendant originally was sentenced to the term of 
supervision being revoked, the court shall determine the criminal 
history category that would have been applicable at the time the 
defendant originally was sentenced to the term of supervision. (See the 
criminal history provisions of Sec. Sec.  4A1.1-4B1.4.)
    2. Departure from the applicable range of imprisonment in the 
Supervised Release Revocation Table may be warranted when the court 
departed from the applicable range for reasons set forth

[[Page 19815]]

in Sec.  4A1.3 (Departures Based on Inadequacy of Criminal History 
Category) in originally imposing the sentence that resulted in 
supervised release. Additionally, an upward departure may be warranted 
when a defendant, subsequent to the federal sentence resulting in 
supervised release, has been sentenced for an offense that is not the 
basis of the violation proceeding.
    3. In the case of a Grade C violation that is associated with a 
high risk of new felonious conduct (e.g., a defendant, under supervised 
release for conviction of criminal sexual abuse, violates the condition 
that the defendant not associate with children by loitering near a 
schoolyard), an upward departure may be warranted.
    4. Where the original sentence was the result of a downward 
departure (e.g., as a reward for substantial assistance), or a charge 
reduction that resulted in a sentence below the guideline range 
applicable to the defendant's underlying conduct, an upward departure 
may be warranted.
    5. Upon a finding that a defendant violated a condition of 
supervised release by being in possession of a controlled substance or 
firearm or by refusing to comply with a condition requiring drug 
testing, the court is required to revoke supervised release and impose 
a sentence that includes a term of imprisonment. 18 U.S.C. 3583(g).
    6. The availability of appropriate substance abuse programs, or a 
defendant's current or past participation in such programs, may warrant 
an exception from the requirement of mandatory revocation and 
imprisonment under 18 U.S.C. 3583(g). 18 U.S.C. 3583(d).

Sec.  7C1.6. No Credit for Time Under Supervision (Policy Statement)

    (a) Upon revocation of supervised release, no credit shall be given 
(toward any term of imprisonment ordered) for time previously served on 
post-release supervision. See 18 U.S.C. 3583(e)(3).
    (b) Provided, that in the case of a person serving a period of 
supervised release on a foreign sentence under the provisions of 18 
U.S.C. 4106A, credit shall be given for time on supervision prior to 
revocation, except that no credit shall be given for any time in escape 
or absconder status.
Commentary
    Application Note:
    1. Subsection (b) implements 18 U.S.C. 4106A(b)(1)(C), which 
provides that the combined periods of imprisonment and supervised 
release in transfer treaty cases shall not exceed the term of 
imprisonment imposed by the foreign court.
    Background: This section provides that time served on supervised 
release is not to be credited in the determination of any term of 
imprisonment imposed upon revocation. Other aspects of the defendant's 
conduct, such as compliance with supervision conditions and adjustment 
while under supervision, appropriately may be considered by the court 
in the determination of the sentence to be imposed within the 
applicable revocation range.''.
    Reason for Amendment: This amendment updates the Guidelines 
Manual's approach to supervised release by revising Part D (Supervised 
Release) of Chapter Five (Determining the Sentence) and Chapter Seven 
(Violations of Probation and Supervised Release).
    The Sentencing Reform Act of 1984 established ``supervised 
release'' as a tool a court could use to impose post-release 
supervision on a defendant sentenced to a term of imprisonment. See 18 
U.S.C. 3583. The primary goal of supervised release is to ``ease the 
defendant's transition into the community after the service of a long 
prison term for a particularly serious offense, or to provide 
rehabilitation to a defendant who has spent a fairly short period in 
prison . . . but still needs supervision and training programs after 
release.'' S. Rep. No. 225, 98th Cong., 1st Sess. 54 (1983). Supervised 
release also functions as an important tool to promote public safety. 
See 18 U.S.C. 3583(c), 3553(a)(2)(C).
    While statutes mandate the imposition and minimum length of 
supervised release in some cases, courts generally have discretion to 
determine whether to impose supervised release, to set its length and 
conditions, modify those conditions, and to extend, revoke, or 
terminate the term. In making these decisions, the Act requires courts 
to examine a set of factors similar, but not identical, to those 
considered when imposing a sentence. Compare 18 U.S.C. 3553(a) with 18 
U.S.C. 3583(c)-(e).
    In November 2024, the Commission held a roundtable on supervised 
release attended by judges, retired federal probation officers, 
providers of reentry services, academics, federal probation, government 
and defense community representatives, and a reentry program graduate. 
The Commission also received extensive public comment and testimony 
from members of Congress, the Committee on Criminal Law of the Judicial 
Conference of the United States, the Department of Justice, the Federal 
Public and Community Defenders, the Commission's advisory groups, law 
professors, currently and formerly incarcerated individuals, and other 
criminal justice system stakeholders.
    The amendment makes several overarching changes in response to this 
feedback and consistent with the statutory purposes and framework. 
First, it emphasizes the importance of judges making individualized 
decisions about supervised release at all relevant stages--including 
imposition, modification or extension, and revocation. Second, it 
underscores the authority of courts, in consultation with the probation 
officer, to reassess supervised release decisions after a defendant's 
release from imprisonment, including decisions about the length and 
conditions of supervision. Third, it underscores the rehabilitative 
purposes of supervised release by dividing the provisions addressing 
violations of probation and violations of supervised release into 
separate parts of Chapter Seven and providing courts with greater 
discretion to respond to a violation of a condition of supervised 
release, including where appropriate, through alternatives to 
revocation and imprisonment.
    The amendment's specific changes to Chapters Five and Seven are 
discussed further below.
Chapter Five, Part D (Supervised Release)
    The amendment revises Chapter Five, Part D of the Guidelines Manual 
to provide courts with greater discretion to impose a term of 
supervised release that is appropriate for the individual defendant. 
The amendment adds Introductory Commentary, revises each existing 
guideline, and adds a new policy statement at Sec.  5D1.4, which 
addresses extending or terminating supervised release or modifying the 
conditions thereof.
Introductory Commentary
    The amendment adds Introductory Commentary to Part D of Chapter 
Five emphasizing that supervised release is intended to ease a 
defendant's transition into the community, provide needed 
rehabilitation, and promote public safety. It highlights the importance 
of conducting an individualized assessment to determine whether a 
defendant needs supervision and how to appropriately tailor the term 
and conditions, as required by 18 U.S.C. 3583(c).

[[Page 19816]]

Sec.  5D1.1 (Imposition of a Term of Supervised Release)
    The amendment revises Sec.  5D1.1 to provide greater judicial 
discretion in determining whether any term of supervised release is 
warranted. The amendment removes the requirement to impose supervised 
release whenever the sentence of imprisonment is more than one year and 
instead requires supervised release only when mandated by statute. In 
any other case, ``the court should order a term of supervised release 
when warranted by an individualized assessment of the need for 
supervision.'' Application Note 1 defines the ``individualized 
assessment'' by reference to the 18 U.S.C. 3553(a) factors that courts 
must consider under 18 U.S.C. 3583(c). The Commentary to Sec.  5D1.1 
continues to instruct courts to consider the defendant's criminal 
history, substance abuse history, and history of domestic violence in 
determining whether to impose a term of supervised release.
    These changes respond to widespread concern that supervised release 
often is ordered reflexively, potentially diverting supervision 
resources from individuals who most need them. Commission data shows 
that courts currently impose supervised release in most cases (82.5%). 
This focus on an individualized assessment aims to ``assure that 
[individuals] who will need post-release supervision will receive it'' 
while ``prevent[ing] probation system resources from being wasted on 
supervisory services for releasees who do not need them,'' as Congress 
intended. See S. Rep. No. 225, 98th Cong., 1st Sess. 54 (1983).
    The amendment also adds new Sec.  5D1.1(d), which instructs that 
``the court should state in open court the reasons for imposing or not 
imposing a term of supervised release,'' consistent with 18 U.S.C. 
3553(c).
    Finally, it adds new Application Note 7, which alerts courts to the 
fact that the decision whether to impose a term of supervised release 
could affect subsequent application of First Step Act earned time 
credits.
Sec.  5D1.2 (Term of Supervised Release)
    The amendment revises Sec.  5D1.2 to provide courts with greater 
discretion in determining the appropriate length of the term of 
supervised release. It removes the recommended minimum terms by class 
of offense from Sec.  5D1.2(a) and instead instructs the court to 
conduct an individualized assessment to determine the length of the 
term, which shall be not less than any statutorily required minimum 
term. It continues to list the maximum terms of supervised release by 
offense class, noting that some statutes may provide for a different 
term. Application Note 1 provides that the factors considered for 
purposes of determining the length of the term are the same as the 
factors considered in determining whether to impose a term and--
consistent with 18 U.S.C. 3583(c) and 3553(a)--instructs that the court 
should ensure the term ``is sufficient, but not greater than necessary, 
to address the purposes of imposing supervised release on the 
defendant.''
    Similar to the changes made to Sec.  5D1.1, the amendment adds a 
new instruction to Sec.  5D1.2 that ``the court should state in open 
court the reasons for the length of the term imposed.''
    Additionally, the amendment removes the policy statement 
recommending the statutory maximum term of supervised release for sex 
offense cases. Although imposition of a statutory maximum term may be 
warranted in certain cases, the amendment leaves the appropriate term 
to the court's discretion. As a related change, the amendment deletes a 
similar maximum-term recommendation in the Commentary to Sec.  4B1.5 
(Repeat and Dangerous Sex Offender Against Minors), but it continues to 
recommend that treatment and monitoring be considered as special 
conditions of supervised release for individuals sentenced under that 
guideline.
    Finally, in Application Notes 2 and 3, the amendment advises that 
Congress has authorized higher statutory maximum and/or minimum terms 
of supervised release for certain terrorism and sex offenses and for 
some drug offenses.
Sec.  5D1.3 (Conditions of Supervised Release)
    Section 5D1.3 sets forth mandatory and discretionary conditions of 
supervised release. Discretionary conditions currently are further 
subdivided into ``standard,'' ``special,'' and additional conditions. 
The amendment restructures and revises the discretionary conditions of 
supervised release in four ways. First, it adds a general instruction 
at Sec.  5D1.3(b)(1), which provides that the court ``should conduct an 
individualized assessment to determine what, if any,'' discretionary 
conditions are warranted. Second, in Sec.  5D1.3(b)(2), it removes the 
instruction that ``standard'' conditions ``are recommended for 
supervised release'' and instead clarifies that they ``may be modified, 
omitted, or expanded in appropriate cases.'' Third, in Sec.  
5D1.3(b)(3), it removes the recommendation of imposing ``special'' 
conditions for listed circumstances and instead provides that ``[o]ne 
or more conditions from the . . . non-exhaustive list of `special 
conditions' may be appropriate in a particular case, including'' the 
described circumstances. Fourth, it removes the ``additional 
conditions'' subheading and incorporates those conditions into the list 
of ``special'' conditions in Sec.  5D1.3(b)(3).
    These changes emphasize that any standard, special, or other 
discretionary conditions of supervised release--i.e., those not 
required by statute--should be imposed only when warranted by an 
individualized assessment, reflecting the requirements of 18 U.S.C. 
3583(d) and feedback that certain conditions are at times imposed by 
default. The Commission nonetheless recognizes the value of a list of 
``standard'' conditions that establish basic behavioral expectations 
and facilitate probation officers' supervision. Accordingly, the 
amendment maintains the list of ``standard'' conditions without change 
but notes the court's authority to impose and adjust them as 
appropriate.
    The amendment also adds three ``special'' conditions in response to 
commenters' concerns about cases where victims need special protection 
and cases where defendants could benefit from educational programs. The 
revised Sec.  5D1.3 lists the following as ``special'' conditions: (1) 
a condition prohibiting the defendant from interacting with any victim 
if the instant conviction is a sex offense; (2) a condition prohibiting 
the defendant from interacting with any identifiable victim, applicable 
to all offenses generally; and (3) a condition that the defendant 
participate in a General Education Development (or similar) program, 
vocational training, or skills training if the court has reason to 
believe it would be appropriate and would equip the defendant for 
suitable employment.
New Sec.  5D1.4 (Modification, Early Termination, and Extension of 
Supervised Release (Policy Statement))
    The Commission sought to address with this amendment potential 
issues surrounding the fact that the terms and conditions of supervised 
release are imposed at original sentencing, often years before the 
defendant begins supervision. People and their circumstances may change 
in and after prison, such that the original term and conditions may no 
longer be appropriate after the defendant's release. Courts are 
encouraged to consider modifying the terms and conditions of supervised

[[Page 19817]]

release whenever changed individual circumstances so warrant.
    While Commentary to Sec.  5D1.2 previously noted the court's 
authority to terminate or extend supervised release and encouraged 
courts to ``exercise this authority in appropriate cases,'' the 
amendment adds a new policy statement at Sec.  5D1.4 to more directly 
address a court's statutory authority to modify conditions or to 
terminate or extend the term of supervised release.
    Subsection (a) (Modification of Conditions) restates the court's 
authority under 18 U.S.C. 3583(e)(2) to modify, reduce, or enlarge the 
conditions of supervised release and encourages the court to conduct an 
individualized assessment, in consultation with the probation officer, 
to determine whether any change to the conditions is warranted after a 
defendant's release from imprisonment. The Commission received feedback 
that while probation officers often meet with defendants approaching 
and after their release, judicial involvement varies by jurisdiction 
and individual court practice. The Commission believes that more 
consistent judicial participation in revisiting the conditions of 
supervised release will facilitate successful reintegration, increase 
compliance, and promote public safety, and, therefore, it is encouraged 
as a best practice.
    To encourage appropriate use of early termination, subsection (b) 
(Early Termination) restates the court's authority under 18 U.S.C. 
3583(e)(1) to terminate the remaining term of supervision any time 
after one year of supervised release if the court determines, following 
consultation with the government and the probation officer, that 
termination is warranted by the conduct of the defendant and in the 
interest of justice. Application Note 1(B) specifies factors a court 
might consider in determining whether to terminate the remaining term 
of supervised release, which are modeled in part after the factors in 
the Guide to Judiciary Policy, Vol. 8E, Ch. 3, Sec.  360.20. 
Considering early termination at appropriate intervals will help ensure 
that resources are allocated to the individuals most in need of 
continued supervision and that the term is ``sufficient, but not 
greater than necessary'' to fulfill the purposes of imposing 
supervision. See 18 U.S.C. 3583(c); 18 U.S.C. 3553(a); USSG Sec.  5D1.2 
comment. (n.1) (as revised by this amendment).
    Subsection (c) (Extending a Term of Supervised Release) provides 
that the court may extend the term of supervised release any time 
before the expiration of a term if less than the maximum term was 
imposed and extension is warranted by an individualized assessment of 
the need for further supervision. Application Note 3 notes that 
extending a term may be more appropriate than revoking a term of 
supervised release in some cases.
    Application Note 2 encourages the court, in coordination with the 
government, to ensure that any victim 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.
Conforming Changes
    The amendment also makes conforming changes to Sec.  1B1.10 
(Reduction in Term of Imprisonment as a Result of Amended Guideline 
Range (Policy Statement)), Sec.  5B1.3 (Conditions of Probation), Sec.  
5H1.3 (Mental and Emotional Conditions (Policy Statement)), and Sec.  
5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or 
Abuse; Gambling Addiction (Policy Statement)).
Chapter Seven (Violations of Probation and Supervised Release)
    The amendment revises Chapter Seven of the Guidelines Manual in two 
main ways to underscore the different purposes of probation and 
supervised release. First, it divides Chapter Seven into Part B 
(Violations of Probation) and Part C (Violations of Supervised Release) 
to reflect that probation serves all the goals of sentencing, including 
punishment, while supervised release primarily ``fulfills 
rehabilitative ends, distinct from those served by incarceration.'' 
United States v. Johnson, 529 U.S. 53, 59 (2000). Second, it responds 
to stakeholder feedback on the need for a more flexible, individualized 
approach to supervised release violations by encouraging courts to 
consider a graduated response to a defendant's non-compliant behavior.
Chapter Seven--Part A (Introduction to Chapter Seven)
    The amendment revises the Introduction to Chapter Seven to explain 
the Commission's updated approach that treats violations of probation 
and supervised release differently. To highlight the primarily 
rehabilitative purposes of supervised release, the new introductory 
language encourages courts to consider graduated responses to non-
compliant behavior before revoking supervised release. The Commission 
believes that a graduated approach will better allocate resources, 
promote public safety, and facilitate the reentry and rehabilitation of 
defendants on supervised release.
Chapter Seven--Part B (Violations of Probation)
    The amendment removes references to supervised release from Chapter 
Seven, Part B and adds an example to the commentary of Sec.  7B1.4 
(criminal history calculation) that mirrors an addition to the 
commentary of new Sec.  7C1.5. The provisions in Chapter Seven, Part B 
are otherwise unchanged, reflecting the Commission's determination that 
violations of probation and supervised release should be treated 
differently.
Chapter Seven--Part C (Violations of Supervised Release), Introductory 
Commentary
    The amendment includes Introductory Commentary to new Part C of 
Chapter Seven, which explains that in responding to a report of non-
compliance, addressing a violation found during revocation proceedings, 
or imposing a sentence upon revocation, the court should conduct the 
same kind of individualized assessment used when imposing supervised 
release. The introduction highlights the Commission's view that courts 
should consider a wide array of options to address violations of 
supervised release and that any sentence imposed upon revocation should 
be tailored to address the failure to abide by supervision conditions, 
as imposition of an appropriate punishment for new criminal conduct is 
not the primary goal of a revocation sentence.
New Sec.  7C1.1 (Classification of Violations (Policy Statement)) and 
Sec.  7C1.2 (Reporting of Violations of Supervised Release (Policy 
Statement))
    The amendment duplicates Sec. Sec.  7B1.1 and 7B1.2 into new 
Sec. Sec.  7C1.1 and 7C1.2 and retains the three existing grades of 
supervised release violations.
Sec.  7C1.3 (Responses to Violations of Supervised Release (Policy 
Statement))
    New Sec.  7C1.3 identifies actions a court may take in response to 
a report of non-compliance with supervised release conditions or a 
finding of a violation. This new policy statement underscores the 
importance of using a graduated response to non-compliant behavior.
    Subsection (a) instructs the court to conduct an individualized 
assessment to determine what, if any, response is appropriate to a 
report of non-compliance. New Sec.  7C1.3(a) reflects feedback that 
supervision is a dynamic process and often benefits from regular

[[Page 19818]]

communication between the defendant, the probation officer, and the 
court.
    Subsection (b) instructs the court to (1) revoke supervised release 
upon a finding of a violation for which revocation is required by 
statute, and (2) upon a finding of any other violation, conduct an 
individualized assessment, taking into consideration the grade of the 
violation, to determine whether to revoke supervised release for any 
other violation. New Sec.  7C1.3(b) further provides that revocation is 
generally appropriate for a Grade A violation, often appropriate for a 
Grade B violation, and may be appropriate for a Grade C violation. 
While revocation previously was required for both Grade A or B 
violations--and Commission data shows similar rates of prison-only 
revocations for both grades in recent years, see U.S. Sent'g Comm., 
Federal Probation and Supervised Release Violations 35 & Fig.13 
(2020)--the amendment provides flexibility to assess the seriousness of 
the underlying conduct and account for any jurisdictional differences 
affecting the grade assigned to similar conduct.
    For both reports of non-compliance and findings of a violation, 
Application Note 2 references the court's authority to ``take any 
appropriate action provided under 18 U.S.C. 3583'' and lists certain 
informal responses the court also may consider.
    New Application Note 3 encourages the court to consider issuing a 
summons, rather than an arrest warrant, when appropriate, reflecting 
concerns that an arrest may result in unnecessary collateral 
consequences.
Sec.  7C1.4 (Revocation of Supervised Release (Policy Statement))
    The amendment adds new Sec.  7C1.4, which, in subsection (a), 
instructs the court to conduct an individualized assessment to 
determine the appropriate length of the term of imprisonment upon 
revocation, given the recommended ranges set forth in Sec.  7C1.5 (Term 
of Imprisonment--Supervised Release (Policy Statement)).
    Subsection (b) directs that any term of imprisonment ``generally 
should'' be ordered to be served consecutively to any sentence of 
imprisonment that the defendant is currently serving. This language 
replaces the former instruction that terms of imprisonment upon 
revocation ``shall'' be ordered to be served consecutively. This new 
provision continues to underscore the seriousness of violation conduct 
while reserving flexibility for courts to run sentences concurrently in 
extraordinary cases where justified.
    Subsection (c) retains the instruction from the prior version of 
Sec.  7B1.3(g)(2) which, consistent with 18 U.S.C. 3583(h), allows a 
court to reimpose a term of supervised release upon release from a term 
of imprisonment imposed upon revocation.
    New Application Note 3 adopts and modifies Sec.  7B1.3(c)(3) to 
state that ``[i]n the case of a revocation based, at least in part, on 
a violation of a condition specifically pertaining to community 
confinement, intermittent confinement, or home detention, use of the 
same or a less restrictive sanction generally is not recommended'' 
(emphasis added).
    New Application Note 4 adopts and modifies Sec.  7B1.3(d) to 
instruct that sentencing obligations that remain unpaid or unserved at 
the time of revocation ``should'' be ordered to be paid or served in 
addition to any sentence imposed upon revocation.
Sec.  7C1.5 (Term of Imprisonment--Supervised Release (Policy 
Statement))
    The new Sec.  7C1.5 adopts and modifies Sec.  7B1.4 to set forth 
the Supervised Release Revocation Table and affirms the importance of 
conducting an individualized assessment to determine the length of a 
revocation sentence, in addition to consulting the recommended ranges 
in the Supervised Release Revocation Table.
    The amendment adds an example to Application Note 1 to clarify that 
a defendant's criminal history category for purposes of determining the 
applicable range of imprisonment is not recalculated to reflect an 
amendment made retroactive under Sec.  1B1.10 (Reduction of 
Imprisonment as a Result of Amended Guideline Range (Policy 
Statement)). It adds the same example to the commentary to Sec.  7B1.4 
(Term of Imprisonment--Probation (Policy Statement)).
Sec.  7C1.6 (No Credit for Time Under Supervision (Policy Statement))
    The amendment adds Sec.  7C1.6, which duplicates Sec.  7B1.5(b) and 
(c).
    5. Amendment: Chapter One is amended by striking Part A as follows:

``Part A--Introduction and Authority

Introductory Commentary
    Subparts 1 and 2 of this Part provide an introduction to the 
Guidelines Manual describing the historical development and evolution 
of the federal sentencing guidelines. Subpart 1 sets forth the original 
introduction to the Guidelines Manual as it first appeared in 1987, 
with the inclusion of amendments made occasionally thereto between 1987 
and 2000. The original introduction, as so amended, explained a number 
of policy decisions made by the United States Sentencing Commission 
(`Commission') when it promulgated the initial set of guidelines and 
therefore provides a useful reference for contextual and historical 
purposes. Subpart 2 further describes the evolution of the federal 
sentencing guidelines after the initial guidelines were promulgated.
    Subpart 3 of this Part states the authority of the Commission to 
promulgate federal sentencing guidelines, policy statements, and 
commentary.
1. Original Introduction to the Guidelines Manual
    The following provisions of this Subpart set forth the original 
introduction to this manual, effective November 1, 1987, and as amended 
through November 1, 2000:
    1. Authority
    The United States Sentencing Commission (`Commission') is an 
independent agency in the judicial branch composed of seven voting and 
two non-voting, ex officio members. Its principal purpose is to 
establish sentencing policies and practices for the federal criminal 
justice system that will assure the ends of justice by promulgating 
detailed guidelines prescribing the appropriate sentences for offenders 
convicted of federal crimes.
    The guidelines and policy statements promulgated by the Commission 
are issued pursuant to Section 994(a) of Title 28, United States Code.
    2. The Statutory Mission
    The Sentencing Reform Act of 1984 (Title II of the Comprehensive 
Crime Control Act of 1984) provides for the development of guidelines 
that will further the basic purposes of criminal punishment: 
deterrence, incapacitation, just punishment, and rehabilitation. The 
Act delegates broad authority to the Commission to review and 
rationalize the federal sentencing process.
    The Act contains detailed instructions as to how this determination 
should be made, the most important of which directs the Commission to 
create categories of offense behavior and offender characteristics. An 
offense behavior category might consist, for example, of `bank robbery/
committed with a gun/$2500 taken.' An offender characteristic category 
might be `offender with one prior conviction not resulting in 
imprisonment.' The Commission is required to prescribe guideline ranges 
that specify an appropriate sentence for each class of convicted 
persons determined by

[[Page 19819]]

coordinating the offense behavior categories with the offender 
characteristic categories. Where the guidelines call for imprisonment, 
the range must be narrow: the maximum of the range cannot exceed the 
minimum by more than the greater of 25 percent or six months. 28 U.S.C. 
994(b)(2).
    Pursuant to the Act, the sentencing court must select a sentence 
from within the guideline range. If, however, a particular case 
presents atypical features, the Act allows the court to depart from the 
guidelines and sentence outside the prescribed range. In that case, the 
court must specify reasons for departure. 18 U.S.C. 3553(b). If the 
court sentences within the guideline range, an appellate court may 
review the sentence to determine whether the guidelines were correctly 
applied. If the court departs from the guideline range, an appellate 
court may review the reasonableness of the departure. 18 U.S.C. 3742. 
The Act also abolishes parole, and substantially reduces and 
restructures good behavior adjustments.
    The Commission's initial guidelines were submitted to Congress on 
April 13, 1987. After the prescribed period of Congressional review, 
the guidelines took effect on November 1, 1987, and apply to all 
offenses committed on or after that date. The Commission has the 
authority to submit guideline amendments each year to Congress between 
the beginning of a regular Congressional session and May 1. Such 
amendments automatically take effect 180 days after submission unless a 
law is enacted to the contrary. 28 U.S.C. 994(p).
    The initial sentencing guidelines and policy statements were 
developed after extensive hearings, deliberation, and consideration of 
substantial public comment. The Commission emphasizes, however, that it 
views the guideline-writing process as evolutionary. It expects, and 
the governing statute anticipates, that continuing research, 
experience, and analysis will result in modifications and revisions to 
the guidelines through submission of amendments to Congress. To this 
end, the Commission is established as a permanent agency to monitor 
sentencing practices in the federal courts.
    3. The Basic Approach (Policy Statement)
    To understand the guidelines and their underlying rationale, it is 
important to focus on the three objectives that Congress sought to 
achieve in enacting the Sentencing Reform Act of 1984. The Act's basic 
objective was to enhance the ability of the criminal justice system to 
combat crime through an effective, fair sentencing system. To achieve 
this end, Congress first sought honesty in sentencing. It sought to 
avoid the confusion and implicit deception that arose out of the pre-
guidelines sentencing system which required the court to impose an 
indeterminate sentence of imprisonment and empowered the parole 
commission to determine how much of the sentence an offender actually 
would serve in prison. This practice usually resulted in a substantial 
reduction in the effective length of the sentence imposed, with 
defendants often serving only about one-third of the sentence imposed 
by the court.
    Second, Congress sought reasonable uniformity in sentencing by 
narrowing the wide disparity in sentences imposed for similar criminal 
offenses committed by similar offenders. Third, Congress sought 
proportionality in sentencing through a system that imposes 
appropriately different sentences for criminal conduct of differing 
severity.
    Honesty is easy to achieve: the abolition of parole makes the 
sentence imposed by the court the sentence the offender will serve, 
less approximately fifteen percent for good behavior. There is a 
tension, however, between the mandate of uniformity and the mandate of 
proportionality. Simple uniformity--sentencing every offender to five 
years--destroys proportionality. Having only a few simple categories of 
crimes would make the guidelines uniform and easy to administer, but 
might lump together offenses that are different in important respects. 
For example, a single category for robbery that included armed and 
unarmed robberies, robberies with and without injuries, robberies of a 
few dollars and robberies of millions, would be far too broad.
    A sentencing system tailored to fit every conceivable wrinkle of 
each case would quickly become unworkable and seriously compromise the 
certainty of punishment and its deterrent effect. For example: a bank 
robber with (or without) a gun, which the robber kept hidden (or 
brandished), might have frightened (or merely warned), injured 
seriously (or less seriously), tied up (or simply pushed) a guard, 
teller, or customer, at night (or at noon), in an effort to obtain 
money for other crimes (or for other purposes), in the company of a few 
(or many) other robbers, for the first (or fourth) time.
    The list of potentially relevant features of criminal behavior is 
long; the fact that they can occur in multiple combinations means that 
the list of possible permutations of factors is virtually endless. The 
appropriate relationships among these different factors are exceedingly 
difficult to establish, for they are often context specific. Sentencing 
courts do not treat the occurrence of a simple bruise identically in 
all cases, irrespective of whether that bruise occurred in the context 
of a bank robbery or in the context of a breach of peace. This is so, 
in part, because the risk that such a harm will occur differs depending 
on the underlying offense with which it is connected; and also because, 
in part, the relationship between punishment and multiple harms is not 
simply additive. The relation varies depending on how much other harm 
has occurred. Thus, it would not be proper to assign points for each 
kind of harm and simply add them up, irrespective of context and total 
amounts.
    The larger the number of subcategories of offense and offender 
characteristics included in the guidelines, the greater the complexity 
and the less workable the system. Moreover, complex combinations of 
offense and offender characteristics would apply and interact in 
unforeseen ways to unforeseen situations, thus failing to cure the 
unfairness of a simple, broad category system. Finally, and perhaps 
most importantly, probation officers and courts, in applying a complex 
system having numerous subcategories, would be required to make a host 
of decisions regarding whether the underlying facts were sufficient to 
bring the case within a particular subcategory. The greater the number 
of decisions required and the greater their complexity, the greater the 
risk that different courts would apply the guidelines differently to 
situations that, in fact, are similar, thereby reintroducing the very 
disparity that the guidelines were designed to reduce.
    In view of the arguments, it would have been tempting to retreat to 
the simple, broad category approach and to grant courts the discretion 
to select the proper point along a broad sentencing range. Granting 
such broad discretion, however, would have risked correspondingly broad 
disparity in sentencing, for different courts may exercise their 
discretionary powers in different ways. Such an approach would have 
risked a return to the wide disparity that Congress established the 
Commission to reduce and would have been contrary to the Commission's 
mandate set forth in the Sentencing Reform Act of 1984.
    In the end, there was no completely satisfying solution to this 
problem. The Commission had to balance the comparative virtues and 
vices of broad, simple categorization and detailed,

[[Page 19820]]

complex subcategorization, and within the constraints established by 
that balance, minimize the discretionary powers of the sentencing 
court. Any system will, to a degree, enjoy the benefits and suffer from 
the drawbacks of each approach.
    A philosophical problem arose when the Commission attempted to 
reconcile the differing perceptions of the purposes of criminal 
punishment. Most observers of the criminal law agree that the ultimate 
aim of the law itself, and of punishment in particular, is the control 
of crime. Beyond this point, however, the consensus seems to break 
down. Some argue that appropriate punishment should be defined 
primarily on the basis of the principle of `just deserts.' Under this 
principle, punishment should be scaled to the offender's culpability 
and the resulting harms. Others argue that punishment should be imposed 
primarily on the basis of practical `crime control' considerations. 
This theory calls for sentences that most effectively lessen the 
likelihood of future crime, either by deterring others or 
incapacitating the defendant.
    Adherents of each of these points of view urged the Commission to 
choose between them and accord one primacy over the other. As a 
practical matter, however, this choice was unnecessary because in most 
sentencing decisions the application of either philosophy will produce 
the same or similar results.
    In its initial set of guidelines, the Commission sought to solve 
both the practical and philosophical problems of developing a coherent 
sentencing system by taking an empirical approach that used as a 
starting point data estimating pre-guidelines sentencing practice. It 
analyzed data drawn from 10,000 presentence investigations, the 
differing elements of various crimes as distinguished in substantive 
criminal statutes, the United States Parole Commission's guidelines and 
statistics, and data from other relevant sources in order to determine 
which distinctions were important in pre-guidelines practice. After 
consideration, the Commission accepted, modified, or rationalized these 
distinctions.
    This empirical approach helped the Commission resolve its practical 
problem by defining a list of relevant distinctions that, although of 
considerable length, was short enough to create a manageable set of 
guidelines. Existing categories are relatively broad and omit 
distinctions that some may believe important, yet they include most of 
the major distinctions that statutes and data suggest made a 
significant difference in sentencing decisions. Relevant distinctions 
not reflected in the guidelines probably will occur rarely and 
sentencing courts may take such unusual cases into account by departing 
from the guidelines.
    The Commission's empirical approach also helped resolve its 
philosophical dilemma. Those who adhere to a just deserts philosophy 
may concede that the lack of consensus might make it difficult to say 
exactly what punishment is deserved for a particular crime. Likewise, 
those who subscribe to a philosophy of crime control may acknowledge 
that the lack of sufficient data might make it difficult to determine 
exactly the punishment that will best prevent that crime. Both groups 
might therefore recognize the wisdom of looking to those distinctions 
that judges and legislators have, in fact, made over the course of 
time. These established distinctions are ones that the community 
believes, or has found over time, to be important from either a just 
deserts or crime control perspective.
    The Commission did not simply copy estimates of pre-guidelines 
practice as revealed by the data, even though establishing offense 
values on this basis would help eliminate disparity because the data 
represent averages. Rather, it departed from the data at different 
points for various important reasons. Congressional statutes, for 
example, suggested or required departure, as in the case of the Anti-
Drug Abuse Act of 1986 that imposed increased and mandatory minimum 
sentences. In addition, the data revealed inconsistencies in treatment, 
such as punishing economic crime less severely than other apparently 
equivalent behavior.
    Despite these policy-oriented departures from pre-guidelines 
practice, the guidelines represent an approach that begins with, and 
builds upon, empirical data. The guidelines will not please those who 
wish the Commission to adopt a single philosophical theory and then 
work deductively to establish a simple and perfect set of 
categorizations and distinctions. The guidelines may prove acceptable, 
however, to those who seek more modest, incremental improvements in the 
status quo, who believe the best is often the enemy of the good, and 
who recognize that these guidelines are, as the Act contemplates, but 
the first step in an evolutionary process. After spending considerable 
time and resources exploring alternative approaches, the Commission 
developed these guidelines as a practical effort toward the achievement 
of a more honest, uniform, equitable, proportional, and therefore 
effective sentencing system.
    4. The Guidelines' Resolution of Major Issues (Policy Statement)
    The guideline-drafting process required the Commission to resolve a 
host of important policy questions typically involving rather evenly 
balanced sets of competing considerations. As an aid to understanding 
the guidelines, this introduction briefly discusses several of those 
issues; commentary in the guidelines explains others.
    (a) Real Offense vs. Charge Offense Sentencing.
    One of the most important questions for the Commission to decide 
was whether to base sentences upon the actual conduct in which the 
defendant engaged regardless of the charges for which he was indicted 
or convicted (`real offense' sentencing), or upon the conduct that 
constitutes the elements of the offense for which the defendant was 
charged and of which he was convicted (`charge offense' sentencing). A 
bank robber, for example, might have used a gun, frightened bystanders, 
taken $50,000, injured a teller, refused to stop when ordered, and 
raced away damaging property during his escape. A pure real offense 
system would sentence on the basis of all identifiable conduct. A pure 
charge offense system would overlook some of the harms that did not 
constitute statutory elements of the offenses of which the defendant 
was convicted.
    The Commission initially sought to develop a pure real offense 
system. After all, the pre-guidelines sentencing system was, in a 
sense, this type of system. The sentencing court and the parole 
commission took account of the conduct in which the defendant actually 
engaged, as determined in a presentence report, at the sentencing 
hearing, or before a parole commission hearing officer. The 
Commission's initial efforts in this direction, carried out in the 
spring and early summer of 1986, proved unproductive, mostly for 
practical reasons. To make such a system work, even to formalize and 
rationalize the status quo, would have required the Commission to 
decide precisely which harms to take into account, how to add them up, 
and what kinds of procedures the courts should use to determine the 
presence or absence of disputed factual elements. The Commission found 
no practical way to combine and account for the large number of diverse 
harms arising in different circumstances; nor did it find a practical 
way to reconcile the need for a fair adjudicatory procedure with the 
need for a speedy sentencing process

[[Page 19821]]

given the potential existence of hosts of adjudicated `real harm' facts 
in many typical cases. The effort proposed as a solution to these 
problems required the use of, for example, quadratic roots and other 
mathematical operations that the Commission considered too complex to 
be workable. In the Commission's view, such a system risked return to 
wide disparity in sentencing practice.
    In its initial set of guidelines submitted to Congress in April 
1987, the Commission moved closer to a charge offense system. This 
system, however, does contain a significant number of real offense 
elements. For one thing, the hundreds of overlapping and duplicative 
statutory provisions that make up the federal criminal law forced the 
Commission to write guidelines that are descriptive of generic conduct 
rather than guidelines that track purely statutory language. For 
another, the guidelines take account of a number of important, commonly 
occurring real offense elements such as role in the offense, the 
presence of a gun, or the amount of money actually taken, through 
alternative base offense levels, specific offense characteristics, 
cross references, and adjustments.
    The Commission recognized that a charge offense system has 
drawbacks of its own. One of the most important is the potential it 
affords prosecutors to influence sentences by increasing or decreasing 
the number of counts in an indictment. Of course, the defendant's 
actual conduct (that which the prosecutor can prove in court) imposes a 
natural limit upon the prosecutor's ability to increase a defendant's 
sentence. Moreover, the Commission has written its rules for the 
treatment of multicount convictions with an eye toward eliminating 
unfair treatment that might flow from count manipulation. For example, 
the guidelines treat a three-count indictment, each count of which 
charges sale of 100 grams of heroin or theft of $10,000, the same as a 
single-count indictment charging sale of 300 grams of heroin or theft 
of $30,000. Furthermore, a sentencing court may control any 
inappropriate manipulation of the indictment through use of its 
departure power. Finally, the Commission will closely monitor charging 
and plea agreement practices and will make appropriate adjustments 
should they become necessary.
    (b) Departures.
    The sentencing statute permits a court to depart from a guideline-
specified sentence only when it finds `an aggravating or mitigating 
circumstance of a kind, or to a degree, not adequately taken into 
consideration by the Sentencing Commission in formulating the 
guidelines that should result in a sentence different from that 
described.' 18 U.S.C. 3553(b). The Commission intends the sentencing 
courts to treat each guideline as carving out a `heartland,' a set of 
typical cases embodying the conduct that each guideline describes. When 
a court finds an atypical case, one to which a particular guideline 
linguistically applies but where conduct significantly differs from the 
norm, the court may consider whether a departure is warranted. Section 
5H1.10 (Race, Sex, National Origin, Creed, Religion, and Socio-Economic 
Status), Sec.  5H1.12 (Lack of Guidance as a Youth and Similar 
Circumstances), the third sentence of Sec.  5H1.4 (Physical Condition, 
Including Drug or Alcohol Dependence or Abuse), the last sentence of 
Sec.  5K2.12 (Coercion and Duress), and Sec.  5K2.19 (Post-Sentencing 
Rehabilitative Efforts)* list several factors that the court cannot 
take into account as grounds for departure. With those specific 
exceptions, however, the Commission does not intend to limit the kinds 
of factors, whether or not mentioned anywhere else in the guidelines, 
that could constitute grounds for departure in an unusual case.

    * Note: Section 5K2.19 (Post-Sentencing Rehabilitative Efforts) 
was deleted by Amendment 768, effective November 1, 2012. (See USSG 
App. C, amendment 768.)

    The Commission has adopted this departure policy for two reasons. 
First, it is difficult to prescribe a single set of guidelines that 
encompasses the vast range of human conduct potentially relevant to a 
sentencing decision. The Commission also recognizes that the initial 
set of guidelines need not do so. The Commission is a permanent body, 
empowered by law to write and rewrite guidelines, with progressive 
changes, over many years. By monitoring when courts depart from the 
guidelines and by analyzing their stated reasons for doing so and court 
decisions with references thereto, the Commission, over time, will be 
able to refine the guidelines to specify more precisely when departures 
should and should not be permitted.
    Second, the Commission believes that despite the courts' legal 
freedom to depart from the guidelines, they will not do so very often. 
This is because the guidelines, offense by offense, seek to take 
account of those factors that the Commission's data indicate made a 
significant difference in pre-guidelines sentencing practice. Thus, for 
example, where the presence of physical injury made an important 
difference in pre-guidelines sentencing practice (as in the case of 
robbery or assault), the guidelines specifically include this factor to 
enhance the sentence. Where the guidelines do not specify an 
augmentation or diminution, this is generally because the sentencing 
data did not permit the Commission to conclude that the factor was 
empirically important in relation to the particular offense. Of course, 
an important factor (e.g., physical injury) may infrequently occur in 
connection with a particular crime (e.g., fraud). Such rare occurrences 
are precisely the type of events that the courts' departure powers were 
designed to cover--unusual cases outside the range of the more typical 
offenses for which the guidelines were designed.
    It is important to note that the guidelines refer to two different 
kinds of departure. The first involves instances in which the 
guidelines provide specific guidance for departure by analogy or by 
other numerical or non-numerical suggestions. The Commission intends 
such suggestions as policy guidance for the courts. The Commission 
expects that most departures will reflect the suggestions and that the 
courts of appeals may prove more likely to find departures 
`unreasonable' where they fall outside suggested levels.
    A second type of departure will remain unguided. It may rest upon 
grounds referred to in Chapter Five, Part K (Departures) or on grounds 
not mentioned in the guidelines. While Chapter Five, Part K lists 
factors that the Commission believes may constitute grounds for 
departure, the list is not exhaustive. The Commission recognizes that 
there may be other grounds for departure that are not mentioned; it 
also believes there may be cases in which a departure outside suggested 
levels is warranted. In its view, however, such cases will be highly 
infrequent.
    (c) Plea Agreements.
    Nearly ninety percent of all federal criminal cases involve guilty 
pleas and many of these cases involve some form of plea agreement. Some 
commentators on early Commission guideline drafts urged the Commission 
not to attempt any major reforms of the plea agreement process on the 
grounds that any set of guidelines that threatened to change pre-
guidelines practice radically also threatened to make the federal 
system unmanageable. Others argued that guidelines that failed to 
control and limit plea agreements would leave untouched a `loophole' 
large enough to undo the good that sentencing guidelines would bring.
    The Commission decided not to make major changes in plea agreement 
practices in the initial guidelines, but rather to provide guidance by 
issuing

[[Page 19822]]

general policy statements concerning the acceptance of plea agreements 
in Chapter Six, Part B (Plea Agreements). The rules set forth in Fed. 
R. Crim. P. 11(e) govern the acceptance or rejection of such 
agreements. The Commission will collect data on the courts' plea 
practices and will analyze this information to determine when and why 
the courts accept or reject plea agreements and whether plea agreement 
practices are undermining the intent of the Sentencing Reform Act. In 
light of this information and analysis, the Commission will seek to 
further regulate the plea agreement process as appropriate. 
Importantly, if the policy statements relating to plea agreements are 
followed, circumvention of the Sentencing Reform Act and the guidelines 
should not occur.
    The Commission expects the guidelines to have a positive, 
rationalizing impact upon plea agreements for two reasons. First, the 
guidelines create a clear, definite expectation in respect to the 
sentence that a court will impose if a trial takes place. In the event 
a prosecutor and defense attorney explore the possibility of a 
negotiated plea, they will no longer work in the dark. This fact alone 
should help to reduce irrationality in respect to actual sentencing 
outcomes. Second, the guidelines create a norm to which courts will 
likely refer when they decide whether, under Rule 11(e), to accept or 
to reject a plea agreement or recommendation.
    (d) Probation and Split Sentences.
    The statute provides that the guidelines are to `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 . . . 
.' 28 U.S.C. 994(j). Under pre-guidelines sentencing practice, courts 
sentenced to probation an inappropriately high percentage of offenders 
guilty of certain economic crimes, such as theft, tax evasion, 
antitrust offenses, insider trading, fraud, and embezzlement, that in 
the Commission's view are `serious.'
    The Commission's solution to this problem has been to write 
guidelines that classify as serious many offenses for which probation 
previously was frequently given and provide for at least a short period 
of imprisonment in such cases. The Commission concluded that the 
definite prospect of prison, even though the term may be short, will 
serve as a significant deterrent, particularly when compared with pre-
guidelines practice where probation, not prison, was the norm.
    More specifically, the guidelines work as follows in respect to a 
first offender. For offense levels one through eight, the sentencing 
court may elect to sentence the offender to probation (with or without 
confinement conditions) or to a prison term. For offense levels nine 
and ten, the court may substitute probation for a prison term, but the 
probation must include confinement conditions (community confinement, 
intermittent confinement, or home detention). For offense levels eleven 
and twelve, the court must impose at least one-half the minimum 
confinement sentence in the form of prison confinement, the remainder 
to be served on supervised release with a condition of community 
confinement or home detention.* The Commission, of course, has not 
dealt with the single acts of aberrant behavior that still may justify 
probation at higher offense levels through departures.**

    * 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.)

    (e) Multi-Count Convictions.
    The Commission, like several state sentencing commissions, has 
found it particularly difficult to develop guidelines for sentencing 
defendants convicted of multiple violations of law, each of which makes 
up a separate count in an indictment. The difficulty is that when a 
defendant engages in conduct that causes several harms, each additional 
harm, even if it increases the extent to which punishment is warranted, 
does not necessarily warrant a proportionate increase in punishment. A 
defendant who assaults others during a fight, for example, may warrant 
more punishment if he injures ten people than if he injures one, but 
his conduct does not necessarily warrant ten times the punishment. If 
it did, many of the simplest offenses, for reasons that are often 
fortuitous, would lead to sentences of life imprisonment--sentences 
that neither just deserts nor crime control theories of punishment 
would justify.
    Several individual guidelines provide special instructions for 
increasing punishment when the conduct that is the subject of that 
count involves multiple occurrences or has caused several harms. The 
guidelines also provide general rules for aggravating punishment in 
light of multiple harms charged separately in separate counts. These 
rules may produce occasional anomalies, but normally they will permit 
an appropriate degree of aggravation of punishment for multiple 
offenses that are the subjects of separate counts.
    These rules are set out in Chapter Three, Part D (Multiple Counts). 
They essentially provide: (1) when the conduct involves fungible items 
(e.g., separate drug transactions or thefts of money), the amounts are 
added and the guidelines apply to the total amount; (2) when 
nonfungible harms are involved, the offense level for the most serious 
count is increased (according to a diminishing scale) to reflect the 
existence of other counts of conviction. The guidelines have been 
written in order to minimize the possibility that an arbitrary casting 
of a single transaction into several counts will produce a longer 
sentence. In addition, the sentencing court will have adequate power to 
prevent such a result through departures.
    (f) Regulatory Offenses.
    Regulatory statutes, though primarily civil in nature, sometimes 
contain criminal provisions in respect to particularly harmful 
activity. Such criminal provisions often describe not only substantive 
offenses, but also more technical, administratively-related offenses 
such as failure to keep accurate records or to provide requested 
information. These statutes pose two problems: first, which criminal 
regulatory provisions should the Commission initially consider, and 
second, how should it treat technical or administratively-related 
criminal violations?
    In respect to the first problem, the Commission found that it could 
not comprehensively treat all regulatory

[[Page 19823]]

violations in the initial set of guidelines. There are hundreds of such 
provisions scattered throughout the United States Code. To find all 
potential violations would involve examination of each individual 
federal regulation. Because of this practical difficulty, the 
Commission sought to determine, with the assistance of the Department 
of Justice and several regulatory agencies, which criminal regulatory 
offenses were particularly important in light of the need for 
enforcement of the general regulatory scheme. The Commission addressed 
these offenses in the initial guidelines.
    In respect to the second problem, the Commission has developed a 
system for treating technical recordkeeping and reporting offenses that 
divides them into four categories. First, in the simplest of cases, the 
offender may have failed to fill out a form intentionally, but without 
knowledge or intent that substantive harm would likely follow. He might 
fail, for example, to keep an accurate record of toxic substance 
transport, but that failure may not lead, nor be likely to lead, to the 
release or improper handling of any toxic substance. Second, the same 
failure may be accompanied by a significant likelihood that substantive 
harm will occur; it may make a release of a toxic substance more 
likely. Third, the same failure may have led to substantive harm. 
Fourth, the failure may represent an effort to conceal a substantive 
harm that has occurred.
    The structure of a typical guideline for a regulatory offense 
provides a low base offense level (e.g., 6) aimed at the first type of 
recordkeeping or reporting offense. Specific offense characteristics 
designed to reflect substantive harms that do occur in respect to some 
regulatory offenses, or that are likely to occur, increase the offense 
level. A specific offense characteristic also provides that a 
recordkeeping or reporting offense that conceals a substantive offense 
will have the same offense level as the substantive offense.
    (g) Sentencing Ranges.
    In determining the appropriate sentencing ranges for each offense, 
the Commission estimated the average sentences served within each 
category under the pre-guidelines sentencing system. It also examined 
the sentences specified in federal statutes, in the parole guidelines, 
and in other relevant, analogous sources. The Commission's 
Supplementary Report on the Initial Sentencing Guidelines (1987) 
contains a comparison between estimates of pre-guidelines sentencing 
practice and sentences under the guidelines.
    While the Commission has not considered itself bound by pre-
guidelines sentencing practice, it has not attempted to develop an 
entirely new system of sentencing on the basis of theory alone. 
Guideline sentences, in many instances, will approximate average pre-
guidelines practice and adherence to the guidelines will help to 
eliminate wide disparity. For example, where a high percentage of 
persons received probation under pre-guidelines practice, a guideline 
may include one or more specific offense characteristics in an effort 
to distinguish those types of defendants who received probation from 
those who received more severe sentences. In some instances, short 
sentences of incarceration for all offenders in a category have been 
substituted for a pre-guidelines sentencing practice of very wide 
variability in which some defendants received probation while others 
received several years in prison for the same offense. Moreover, 
inasmuch as those who pleaded guilty under pre-guidelines practice 
often received lesser sentences, the guidelines permit the court to 
impose lesser sentences on those defendants who accept responsibility 
for their misconduct. For defendants who provide substantial assistance 
to the government in the investigation or prosecution of others, a 
downward departure may be warranted.
    The Commission has also examined its sentencing ranges in light of 
their likely impact upon prison population. Specific legislation, such 
as the Anti-Drug Abuse Act of 1986 and the career offender provisions 
of the Sentencing Reform Act of 1984 (28 U.S.C. 994(h)), required the 
Commission to promulgate guidelines that will lead to substantial 
prison population increases. These increases will occur irrespective of 
the guidelines. The guidelines themselves, insofar as they reflect 
policy decisions made by the Commission (rather than legislated 
mandatory minimum or career offender sentences), are projected to lead 
to an increase in prison population that computer models, produced by 
the Commission and the Bureau of Prisons in 1987, estimated at 
approximately 10 percent over a period of ten years.
    (h) The Sentencing Table.
    The Commission has established a sentencing table that for 
technical and practical reasons contains 43 levels. Each level in the 
table prescribes ranges that overlap with the ranges in the preceding 
and succeeding levels. By overlapping the ranges, the table should 
discourage unnecessary litigation. Both prosecution and defense will 
realize that the difference between one level and another will not 
necessarily make a difference in the sentence that the court imposes. 
Thus, little purpose will be served in protracted litigation trying to 
determine, for example, whether $10,000 or $11,000 was obtained as a 
result of a fraud. At the same time, the levels work to increase a 
sentence proportionately. A change of six levels roughly doubles the 
sentence irrespective of the level at which one starts. The guidelines, 
in keeping with the statutory requirement that the maximum of any range 
cannot exceed the minimum by more than the greater of 25 percent or six 
months (28 U.S.C. 994(b)(2)), permit courts to exercise the greatest 
permissible range of sentencing discretion. The table overlaps offense 
levels meaningfully, works proportionately, and at the same time 
preserves the maximum degree of allowable discretion for the court 
within each level.
    Similarly, many of the individual guidelines refer to tables that 
correlate amounts of money with offense levels. These tables often have 
many rather than a few levels. Again, the reason is to minimize the 
likelihood of unnecessary litigation. If a money table were to make 
only a few distinctions, each distinction would become more important 
and litigation over which category an offender fell within would become 
more likely. Where a table has many small monetary distinctions, it 
minimizes the likelihood of litigation because the precise amount of 
money involved is of considerably less importance.
    5. A Concluding Note
    The Commission emphasizes that it drafted the initial guidelines 
with considerable caution. It examined the many hundreds of criminal 
statutes in the United States Code. It began with those that were the 
basis for a significant number of prosecutions and sought to place them 
in a rational order. It developed additional distinctions relevant to 
the application of these provisions and it applied sentencing ranges to 
each resulting category. In doing so, it relied upon pre-guidelines 
sentencing practice as revealed by its own statistical analyses based 
on summary reports of some 40,000 convictions, a sample of 10,000 
augmented presentence reports, the parole guidelines, and policy 
judgments.
    The Commission recognizes that some will criticize this approach as 
overly cautious, as representing too little a departure from pre-
guidelines sentencing practice. Yet, it will cure wide disparity. The 
Commission is a permanent body that can amend the guidelines each year. 
Although the data available to it, like all data, are

[[Page 19824]]

imperfect, experience with the guidelines will lead to additional 
information and provide a firm empirical basis for consideration of 
revisions.
    Finally, the guidelines will apply to more than 90 percent of all 
felony and Class A misdemeanor cases in the federal courts. Because of 
time constraints and the nonexistence of statistical information, some 
offenses that occur infrequently are not considered in the guidelines. 
Their exclusion does not reflect any judgment regarding their 
seriousness and they will be addressed as the Commission refines the 
guidelines over time.
2. Continuing Evolution and Role of the Guidelines
    The Sentencing Reform Act of 1984 changed the course of federal 
sentencing. Among other things, the Act created the United States 
Sentencing Commission as an independent agency in the Judicial Branch, 
and directed it to develop guidelines and policy statements for 
sentencing courts to use when sentencing offenders convicted of federal 
crimes. Moreover, it empowered the Commission with ongoing 
responsibilities to monitor the guidelines, submit to Congress 
appropriate modifications of the guidelines and recommended changes in 
criminal statutes, and establish education and research programs. The 
mandate rested on congressional awareness that sentencing is a dynamic 
field that requires continuing review by an expert body to revise 
sentencing policies, in light of application experience, as new 
criminal statutes are enacted, and as more is learned about what 
motivates and controls criminal behavior.
    This statement finds resonance in a line of Supreme Court cases 
that, taken together, echo two themes. The first theme is that the 
guidelines are the product of a deliberative process that seeks to 
embody the purposes of sentencing set forth in the Sentencing Reform 
Act, and as such they continue to play an important role in the 
sentencing court's determination of an appropriate sentence in a 
particular case. The Supreme Court alluded to this in Mistretta v. 
United States, 488 U.S. 361 (1989), which upheld the constitutionality 
of both the federal sentencing guidelines and the Commission against 
nondelegation and separation of powers challenges. Therein the Court 
stated:
    Developing proportionate penalties for hundreds of different crimes 
by a virtually limitless array of offenders is precisely the sort of 
intricate, labor-intensive task for which delegation to an expert body 
is especially appropriate. Although Congress has delegated significant 
discretion to the Commission to draw judgments from its analysis of 
existing sentencing practice and alternative sentencing models, . . . 
[w]e have no doubt that in the hands of the Commission `the criteria 
which Congress has supplied are wholly adequate for carrying out the 
general policy and purpose' of the Act.
    Id. at 379 (internal quotation marks and citations omitted).
    The continuing importance of the guidelines in federal sentencing 
was further acknowledged by the Court in United States v. Booker, 543 
U.S. 220 (2005), even as that case rendered the guidelines advisory in 
nature. In Booker, the Court held that the imposition of an enhanced 
sentence under the federal sentencing guidelines based on the 
sentencing judge's determination of a fact (other than a prior 
conviction) that was not found by the jury or admitted by the defendant 
violated the Sixth Amendment. The Court reasoned that an advisory 
guideline system, while lacking the mandatory features that Congress 
enacted, retains other features that help to further congressional 
objectives, including providing certainty and fairness in meeting the 
purposes of sentencing, avoiding unwarranted sentencing disparities, 
and maintaining sufficient flexibility to permit individualized 
sentences when warranted. The Court concluded that an advisory 
guideline system would `continue to move sentencing in Congress' 
preferred direction, helping to avoid excessive sentencing disparities 
while maintaining flexibility sufficient to individualize sentences 
where necessary.' Id. at 264-65. An advisory guideline system continues 
to assure transparency by requiring that sentences be based on 
articulated reasons stated in open court that are subject to appellate 
review. An advisory guideline system also continues to promote 
certainty and predictability in sentencing, thereby enabling the 
parties to better anticipate the likely sentence based on the 
individualized facts of the case.
    The continuing importance of the guidelines in the sentencing 
determination is predicated in large part on the Sentencing Reform 
Act's intent that, in promulgating guidelines, the Commission must take 
into account the purposes of sentencing as set forth in 18 U.S.C. 
3553(a). See 28 U.S.C. 994(f), 991(b)(1). The Supreme Court reinforced 
this view in Rita v. United States, 551 U.S. 338 (2007), which held 
that a court of appeals may apply a presumption of reasonableness to a 
sentence imposed by a district court within a properly calculated 
guideline range without violating the Sixth Amendment. In Rita, the 
Court relied heavily on the complementary roles of the Commission and 
the sentencing court in federal sentencing, stating:
    [T]he presumption reflects the nature of the Guidelines-writing 
task that Congress set for the Commission and the manner in which the 
Commission carried out that task. In instructing both the sentencing 
judge and the Commission what to do, Congress referred to the basic 
sentencing objectives that the statute sets forth in 18 U.S.C. 3553(a) 
. . . . The provision also tells the sentencing judge to `impose a 
sentence sufficient, but not greater than necessary, to comply with' 
the basic aims of sentencing as set out above. Congressional statutes 
then tell the Commission to write Guidelines that will carry out these 
same Sec.  3553(a) objectives.
    Id. at 347-48 (emphasis in original). The Court concluded that 
`[t]he upshot is that the sentencing statutes envision both the 
sentencing judge and the Commission as carrying out the same basic 
Sec.  3553(a) objectives, the one, at retail, the other at 
wholesale[,]' id. at 348, and that the Commission's process for 
promulgating guidelines results in `a set of Guidelines that seek to 
embody the Sec.  3553(a) considerations, both in principle and in 
practice.' Id. at 350.
    Consequently, district courts are required to properly calculate 
and consider the guidelines when sentencing, even in an advisory 
guideline system. See 18 U.S.C. 3553(a)(4), (a)(5); Booker, 543 U.S. at 
264 (`The district courts, while not bound to apply the Guidelines, 
must . . . take them into account when sentencing.'); Rita, 551 U.S. at 
351 (stating that a district court should begin all sentencing 
proceedings by correctly calculating the applicable Guidelines range); 
Gall v. United States, 552 U.S. 38, 49 (2007) (`As a matter of 
administration and to secure nationwide consistency, the Guidelines 
should be the starting point and the initial benchmark.'). The district 
court, in determining the appropriate sentence in a particular case, 
therefore, must consider the properly calculated guideline range, the 
grounds for departure provided in the policy statements, and then the 
factors under 18 U.S.C. 3553(a). See Rita, 551 U.S. at 351. The 
appellate court engages in a two-step process upon review. The 
appellate court `first ensure[s] that the district court committed no 
significant procedural error, such as failing to

[[Page 19825]]

calculate (or improperly calculating) the Guidelines range . . . [and] 
then consider[s] the substantive reasonableness of the sentence imposed 
under an abuse-of-discretion standard[,] . . . tak[ing] into account 
the totality of the circumstances, including the extent of any variance 
from the Guidelines range.' Gall, 552 U.S. at 51.
    The second and related theme resonant in this line of Supreme Court 
cases is that, as contemplated by the Sentencing Reform Act, the 
guidelines are evolutionary in nature. They are the product of the 
Commission's fulfillment of its statutory duties to monitor federal 
sentencing law and practices, to seek public input on the operation of 
the guidelines, and to revise the guidelines accordingly. As the Court 
acknowledged in Rita:
    The Commission's work is ongoing. The statutes and the Guidelines 
themselves foresee continuous evolution helped by the sentencing courts 
and courts of appeals in that process. The sentencing courts, applying 
the Guidelines in individual cases may depart (either pursuant to the 
Guidelines or, since Booker, by imposing a non-Guidelines sentence). 
The judges will set forth their reasons. The Courts of Appeals will 
determine the reasonableness of the resulting sentence. The Commission 
will collect and examine the results. In doing so, it may obtain advice 
from prosecutors, defenders, law enforcement groups, civil liberties 
associations, experts in penology, and others. And it can revise the 
Guidelines accordingly.
    Rita, 551 U.S. at 350; see also Booker, 543 U.S. at 264 (`[T]he 
Sentencing Commission remains in place, writing Guidelines, collecting 
information about actual district court sentencing decisions, 
undertaking research, and revising the Guidelines accordingly.'); Gall, 
552 U.S. at 46 (`[E]ven though the Guidelines are advisory rather than 
mandatory, they are, as we pointed out in Rita, the product of careful 
study based on extensive empirical evidence derived from the review of 
thousands of individual sentencing decisions.').
    Provisions of the Sentencing Reform Act promote and facilitate this 
evolutionary process. For example, pursuant to 28 U.S.C. 994(x), the 
Commission publishes guideline amendment proposals in the Federal 
Register and conducts hearings to solicit input on those proposals from 
experts and other members of the public. Pursuant to 28 U.S.C. 994(o), 
the Commission periodically reviews and revises the guidelines in 
consideration of comments it receives from members of the federal 
criminal justice system, including the courts, probation officers, the 
Department of Justice, the Bureau of Prisons, defense attorneys and the 
federal public defenders, and in consideration of data it receives from 
sentencing courts and other sources. Statutory mechanisms such as these 
bolster the Commission's ability to take into account fully the 
purposes of sentencing set forth in 18 U.S.C. 3553(a)(2) in its 
promulgation of the guidelines.
    Congress retains authority to require certain sentencing practices 
and may exercise its authority through specific directives to the 
Commission with respect to the guidelines. As the Supreme Court noted 
in Kimbrough v. United States, 552 U.S. 85 (2007), `Congress has shown 
that it knows how to direct sentencing practices in express terms. For 
example, Congress has specifically required the Sentencing Commission 
to set Guideline sentences for serious recidivist offenders `at or 
near' the statutory maximum.' Id. at 103; 28 U.S.C. 994(h).
    As envisioned by Congress, implemented by the Commission, and 
reaffirmed by the Supreme Court, the guidelines are the product of a 
deliberative and dynamic process that seeks to embody within federal 
sentencing policy the purposes of sentencing set forth in the 
Sentencing Reform Act. As such, the guidelines continue to be a key 
component of federal sentencing and to play an important role in the 
sentencing court's determination of an appropriate sentence in any 
particular case.
3. Authority

Sec.  1A3.1. Authority

    The guidelines, policy statements, and commentary set forth in this 
Guidelines Manual, including amendments thereto, are promulgated by the 
United States Sentencing Commission pursuant to: (1) section 994(a) of 
title 28, United States Code; and (2) with respect to guidelines, 
policy statements, and commentary promulgated or amended pursuant to 
specific congressional directive, pursuant to the authority contained 
in that directive in addition to the authority under section 994(a) of 
title 28, United States Code.'';
    and inserting the following:

``Part A--Introduction and Authority

Introductory Commentary
    The United States Sentencing Commission (`Commission') is an 
independent agency in the judicial branch composed of seven voting and 
two non-voting, ex officio members. Congress directed the Commission to 
establish sentencing policies and practices for the federal criminal 
justice system and develop guidelines that further the purposes of 
sentencing. This part provides the statutory authority and mission of 
the Commission to promulgate federal sentencing guidelines, policy 
statements, and commentary.
    The guidelines and policy statements promulgated by the Commission 
are issued pursuant to Section 994(a) of Title 28, United States Code, 
and are set forth in this Guidelines Manual.
    The Guidelines Manual is structured to reflect the advisory 
sentencing scheme established following the Supreme Court's decision in 
United States v. Booker, 543 U.S. 220 (2005), recognizing both 
essential steps of the court's inquiry in imposing a sentence 
`sufficient, but not greater than necessary.' See 18 U.S.C. 3553(a). 
The guidelines and policy statements set forth throughout the 
Guidelines Manual represent the first step in the sentencing process 
and are one of multiple factors judges must consider under 18 U.S.C. 
3553(a).
    Originally, consistent with the pre-Booker sentencing system, the 
Guidelines Manual included an additional step for determining a 
sentence by providing for a number of `departures,' which were 
provisions that allowed the court to impose a sentence outside the 
applicable guideline range or otherwise different from the guideline 
sentence before the court's consideration of the additional sentencing 
factors set forth in 18 U.S.C. 3553(a). The departure provisions were 
set forth throughout the Guidelines Manual as part of the commentary to 
numerous guidelines and in policy statements contained in Chapter Four, 
Part A, and Chapter Five, Parts H and K.
    Following Booker, courts are permitted to impose sentences outside 
the applicable guideline range as `variances,' both for reasons related 
to the operation of the applicable guideline provisions and in light of 
individual characteristics unrelated to guideline provisions. In the 
years after Booker, courts used departures with much less frequency in 
favor of variances.
    In 2025, the Commission amended the Guidelines Manual to remove 
departures and policy statements relating to specific personal 
characteristics. (See USSG App. C, amendment 836). The Commission 
sought to make these changes to better align the requirements placed on 
the court and acknowledge the growing shift away from the use of 
departures

[[Page 19826]]

provided for within the Guidelines Manual in the wake of Booker and 
subsequent decisions. The Commission envisioned and framed this 2025 
amendment to be outcome neutral, intending that judges who would have 
relied upon facts previously identified as a basis for a departure 
would continue to have the authority to rely upon such facts to impose 
a sentence outside of the applicable guideline range as a variance 
under 18 U.S.C. 3553(a). The removal of departures from the Guidelines 
Manual does not limit the information courts may consider in imposing a 
sentence nor does it reflect a view from the Commission that such facts 
should no longer inform a court for purposes of determining the 
appropriate sentence. In this regard, Appendix B of the Guidelines 
Manual compiles the departure provisions as they were last provided in 
the 2024 edition of the Manual. Similarly, information describing the 
historical development and evolution of the federal sentencing 
guidelines is also set forth in Appendix B of the Guidelines Manual.
1. Authority

Sec.  1A1.1. Commission's Authority

    The Sentencing Reform Act of 1984 (Title II of the Comprehensive 
Crime Control Act of 1984) provides that a sentencing court `shall 
impose a sentence sufficient, but not greater than necessary, to comply 
with' the purposes of sentencing: (1) to reflect the seriousness of the 
offense, to promote respect for the law, and to provide just punishment 
for the offense; (2) deterrence; (3) protection of the public from 
further crimes; and (4) rehabilitation. See 18 U.S.C. 3553(a). The Act 
also provides for the development of guidelines by the Commission that 
further those purposes.
    The guidelines, policy statements, and commentary set forth in this 
Guidelines Manual, including amendments thereto, are promulgated by the 
United States Sentencing Commission pursuant to: (1) section 994(a) of 
title 28, United States Code; and (2) with respect to guidelines, 
policy statements, and commentary promulgated or amended pursuant to 
specific congressional directive, pursuant to the authority contained 
in that directive in addition to the authority under section 994(a) of 
title 28, United States Code.
    The Commission has ensured that the guidelines, policy statements, 
and commentary used to calculate the guideline range are: (1) neutral 
as to the race, sex, national origin, creed, and socioeconomic status 
of the defendant; and (2) generally do not reflect consideration of 
education, vocational skills, employment record, family ties and 
responsibilities, and community ties of the defendant, in recommending 
a term of imprisonment or length of imprisonment. See 28 U.S.C. 994(d), 
(e).
Commentary
    Background: The Sentencing Reform Act of 1984 (Title II of the 
Comprehensive Crime Control Act of 1984) (the `Act') provides that 
courts must consider a variety of factors when imposing a sentence 
`sufficient, but not greater than necessary' to comply with the 
purposes of sentencing as set forth in the Act--to reflect the 
seriousness of the offense, to promote respect for the law, to provide 
just punishment for the offense, deterrence, protection of the public 
from further crimes, and rehabilitation. 18 U.S.C. 3553(a). The Act 
provides for the development of guidelines that will (1) further these 
statutory purposes of sentencing; (2) provide certainty and fairness in 
meeting the purposes of sentencing, avoiding unwarranted sentencing 
disparities among defendants with similar records who have been found 
guilty of similar criminal conduct while maintaining sufficient 
flexibility to permit individualized sentences when warranted by 
mitigating or aggravating factors not taken into account in the 
establishment of general sentencing practices; and (3) reflect, to the 
extent practicable, advancement in knowledge of human behavior as it 
relates to the criminal justice process. 28 U.S.C. 994(f).
    As background, Congress provided specific directives to the 
Commission when setting a guideline range for `each category of offense 
involving each category of defendant.' 28 U.S.C. 994(b)(1).
    First, the Act directs the Commission to consider, for purposes of 
establishing categories of offenses, whether the following seven 
matters, `among others,' have any relevance to the nature, extent, 
place of service, or other aspects of an appropriate sentence: (1) the 
grade of the offense; (2) the circumstances under which the offense was 
committed which mitigate or aggravate the seriousness of the offense; 
(3) the nature and degree of the harm caused by the offense, including 
whether it involved property, irreplaceable property, a person, a 
number of persons, or a breach of public trust; (4) the community view 
of the gravity of the offense; (5) the public concern generated by the 
offense; (6) the deterrent effect a particular sentence may have on the 
commission of the offense by others; and (7) the current incidence of 
the offense in the community and in the Nation as a whole. See 28 
U.S.C. 994(c).
    Second, the Act directs the Commission to consider, for purposes of 
establishing categories of defendants, whether the following eleven 
matters, `among others,' have any relevance to the nature, extent, 
place of service, or other aspects of an appropriate sentence, and to 
take them into account in the guidelines and policy statements only to 
the extent that they do have relevance: (1) age; (2) education; (3) 
vocational skills; (4) mental and emotional condition to the extent 
that such condition mitigates the defendant's culpability or to the 
extent that such condition is otherwise plainly relevant; (5) physical 
condition, including drug dependence; (6) previous employment record; 
(7) family ties and responsibilities; (8) community ties; (9) role in 
the offense; (10) criminal history; and (11) degree of dependence upon 
criminal activity for a livelihood. See 28 U.S.C. 994(d). The Act also 
directs the Commission to ensure that the guidelines and policy 
statements `are entirely neutral' as to five characteristics--race, 
sex, national origin, creed, and socioeconomic status. See 28 U.S.C. 
994(d).
    Third, the Act directs the Commission to ensure that the guidelines 
and policy statements, in recommending a term of imprisonment or length 
of a term of imprisonment, reflect the `general inappropriateness' of 
considering five of those characteristics--education; vocational 
skills; employment record; family ties and responsibilities; and 
community ties. See 28 U.S.C. 994(e).
    In formulating the guidelines used to calculate the guideline 
range, the Commission remains cognizant of these detailed instructions 
directing the Commission to consider whether, and to what extent, 
specific offense-based and offender-based factors are relevant to 
sentencing. See 28 U.S.C. 994(c), (d). Similarly, the Commission has 
ensured that the guidelines, policy statements, and commentary used to 
calculate the guideline range are: (1) neutral as to the race, sex, 
national origin, creed, and socioeconomic status of the defendant; and 
(2) generally do not reflect consideration of education, vocational 
skills, employment record, family ties and responsibilities, and 
community ties of the defendant in recommending a term of imprisonment 
or length of imprisonment. See 28 U.S.C. 994(d), (e).
    The requirements and limitations imposed upon the Commission by 28 
U.S.C. 994, however, do not apply to the sentencing court. To the 
contrary, Congress set forth the factors that a

[[Page 19827]]

court must consider in imposing a sentence that is `sufficient but not 
greater than necessary' to comply with the purposes of sentencing in 18 
U.S.C. 3553(a). These statutory factors permit a sentencing court to 
consider the `widest possible breadth of information' about a defendant 
ensuring the court is in `possession of the fullest information 
possible concerning the defendant's life and characteristics.' See 
Pepper v. United States, 562 U.S. 476, 488 (2011); see also Concepcion 
v. United States, 597 U.S. 481, 493 (2022). Accordingly, the 
application instructions set forth in the following part are structured 
to reflect this two-step process whereby the sentencing court must 
first correctly calculate the applicable guideline range as the 
`starting point and initial benchmark' and then must determine an 
appropriate sentence upon consideration of all the factors set forth by 
Congress in 18 U.S.C. 3553(a). See Gall v. United States, 552 U.S. 38, 
49-51 (2007).''.
    Section 1B1.1(a) is amended--
    by inserting at the beginning the following new heading: ``Step 
One: Calculation of Guideline Range and Determination of Sentencing 
Requirements and Options under the Guidelines Manual.--'';
    in paragraph 5 by striking ``Apply the adjustment as appropriate 
for the defendant's acceptance of responsibility from Part E of Chapter 
Three'' and inserting ``Apply the adjustment for the defendant's 
acceptance of responsibility and the reduction pursuant to an early 
disposition program, as appropriate, from Parts E and F of Chapter 
Three'';
    and by inserting at the end the following new paragraph (9):
    ``(9) Apply, as appropriate, Part K of Chapter Five.''.
    Section 1B1.1 is amended by striking subsections (b) and (c) as 
follows:
    ``(b) The court shall then consider Parts H and K of Chapter Five, 
Specific Offender Characteristics and Departures, and any other policy 
statements or commentary in the guidelines that might warrant 
consideration in imposing sentence. See 18 U.S.C. 3553(a)(5).
    (c) The court shall then consider the applicable factors in 18 
U.S.C. 3553(a) taken as a whole. See 18 U.S.C. 3553(a).'';
    and inserting the following new subsection (b):
    ``(b) Step Two: Consideration of Factors Set Forth in 18 U.S.C. 
3553(a).--After determining the kinds of sentence and guidelines range 
pursuant to subsection (a) of Sec.  1B1.1 (Application Instructions) 
and 18 U.S.C. 3553(a)(4) and (5), the court shall consider the other 
applicable factors in 18 U.S.C. 3553(a) to determine a sentence that is 
sufficient, but not greater than necessary, to comply with the purposes 
of sentencing. Specifically, as set forth in 18 U.S.C. 3553(a), in 
determining the particular sentence to be imposed, the court shall also 
consider--
    (1) the nature and circumstances of the offense and the history and 
characteristics of the defendant;
    (2) the need for the sentence imposed to meet the purposes of 
sentencing listed in 18 U.S.C. 3553(a)(2);
    (3) the kinds of sentences available;
    (4) the need to avoid unwarranted sentence disparities among 
defendants with similar records who have been found guilty of similar 
conduct; and
    (5) the need to provide restitution to any victims of the 
offense.''.
    The Commentary to Sec.  1B1.1 captioned ``Application Notes'' is 
amended in Note 1--
    by striking subparagraph (F) as follows:
    ``(F) `Departure' means (i) for purposes other than those specified 
in clause (ii), imposition of a sentence outside the applicable 
guideline range or of a sentence that is otherwise different from the 
guideline sentence; and (ii) for purposes of Sec.  4A1.3 (Departures 
Based on Inadequacy of Criminal History Category), assignment of a 
criminal history category other than the otherwise applicable criminal 
history category, in order to effect a sentence outside the applicable 
guideline range. `Depart' means grant a departure.
    `Downward departure' means departure that effects a sentence less 
than a sentence that could be imposed under the applicable guideline 
range or a sentence that is otherwise less than the guideline sentence. 
`Depart downward' means grant a downward departure.
    `Upward departure' means departure that effects a sentence greater 
than a sentence that could be imposed under the applicable guideline 
range or a sentence that is otherwise greater than the guideline 
sentence. `Depart upward' means grant an upward departure.'';
    and by redesignating subparagraphs (G) through (M) as subparagraphs 
(F) through (L), respectively.
    The Commentary to Sec.  1B1.1 captioned ``Background'' is amended 
by striking the following:
    ``The court must impose a sentence `sufficient, but not greater 
than necessary,' to comply with the purposes of sentencing set forth in 
18 U.S.C. 3553(a)(2). See 18 U.S.C. 3553(a). Subsections (a), (b), and 
(c) are structured to reflect the three-step process used in 
determining the particular sentence to be imposed. If, after step (c), 
the court imposes a sentence that is outside the guidelines framework, 
such a sentence is considered a `variance'. See Irizarry v. United 
States, 553 U.S. 708, 709-16 (2008) (describing within-range sentences 
and departures as `sentences imposed under the framework set out in the 
Guidelines').'';
    and inserting the following:
    ``The court must impose a sentence `sufficient, but not greater 
than necessary,' to comply with the purposes of sentencing set forth in 
18 U.S.C. 3553(a)(2). See 18 U.S.C. 3553(a). This guideline is 
structured to reflect the advisory sentencing scheme established 
following the Supreme Court's decision in United States v. Booker, 543 
U.S. 220 (2005), by setting forth both essential steps of the court's 
inquiry in making this determination.
    Originally, the guidelines were mandatory, with limited exceptions. 
See 18 U.S.C. 3553(b). Later, in United States v. Booker, 543 U.S. 220 
(2005), the Supreme Court held that the provision in 18 U.S.C. 3553(b) 
making the guidelines mandatory was unconstitutional. Following Booker, 
district courts are first required to properly calculate and consider 
the guidelines when sentencing. See 18 U.S.C. 3553(a)(4), (a)(5); 
Booker, 543 U.S. at 264 (`The district courts, while not bound to apply 
the Guidelines, must . . . take them into account when sentencing.'); 
Rita v. United States, 551 U.S. 338, 351 (2007) (stating that a 
district court should begin all sentencing proceedings by correctly 
calculating the applicable Guidelines range); Gall v. United States, 
552 U.S. 38, 49 (2007) (`As a matter of administration and to secure 
nationwide consistency, the Guidelines should be the starting point and 
the initial benchmark.'); Peugh v. United States, 569 U.S. 530 (2013) 
(noting that `the post-Booker federal sentencing system adopted 
procedural measures that make the guidelines the `lodestone' of 
sentencing'). Step one sets forth the steps for properly calculating 
the guidelines.
    District courts are then required to fully and carefully consider 
the additional factors set forth in 18 U.S.C. 3553(a), which include: 
(1) the nature and circumstances of the offense and the history and 
characteristics of the defendant; (2) the need for the sentence imposed 
to meet the purposes of sentencing listed in 18 U.S.C. 3553(a)(2); (3) 
the kinds of sentence available; (4) the need to avoid unwarranted 
sentence disparities among

[[Page 19828]]

defendants with similar records who have been found guilty of similar 
conduct; and (5) the need to provide restitution to any victims of the 
offense. See Rita, 551 U.S. at 351. Step two, as set forth in 
subsection (b), reflects this step of the sentencing process.''.
    The Commentary to Sec.  1B1.2 captioned ``Application Notes'' is 
amended in Note 1 by striking ``the court would be forced to use an 
artificial guideline and then depart from it'' and inserting ``the 
court would be forced to use an artificial guideline and then impose a 
sentence that is greater than the otherwise applicable guideline 
range''; and by striking ``the probation officer might need to 
calculate the robbery guideline to assist the court in determining the 
appropriate degree of departure'' and inserting ``the probation officer 
might need to calculate the robbery guideline to assist the court in 
determining an appropriate sentence''.
    Section 1B1.3(b) is amended in the heading by striking ``Five 
(Determining the Sentence)'' and inserting ``Five (Determining the 
Sentencing Range and Options Under the Guidelines)''.
    The Commentary to Sec.  1B1.3 captioned ``Application Notes'' is 
amended--
    in Note 3(B) by striking ``The Commission does not foreclose the 
possibility that there may be some unusual set of circumstances in 
which the exclusion of such conduct may not adequately reflect the 
defendant's culpability; in such a case, an upward departure may be 
warranted.'';
    and in Note 6(B) by striking ``In a case in which creation of risk 
is not adequately taken into account by the applicable offense 
guideline, an upward departure may be warranted. See generally Sec.  
1B1.4 (Information to be Used in Imposing Sentence); Sec.  5K2.0 
(Grounds for Departure).''.
    Section 1B1.4 is amended--
    in the heading by striking ``(Selecting a Point Within the 
Guideline Range or Departing from the Guidelines)'';
    and by striking ``In determining the sentence to impose within the 
guideline range, or whether a departure from the guidelines is 
warranted'' and inserting ``In determining the sentence to impose''.
    The Commentary to 1B1.4 captioned ``Background'' is amended by 
striking the following:
    ``This section distinguishes between factors that determine the 
applicable guideline sentencing range (Sec.  1B1.3) and information 
that a court may consider in imposing a sentence within that range. The 
section is based on 18 U.S.C. 3661, which recodifies 18 U.S.C. 3577. 
The recodification of this 1970 statute in 1984 with an effective date 
of 1987 (99 Stat. 1728), makes it clear that Congress intended that no 
limitation would be placed on the information that a court may consider 
in imposing an appropriate sentence under the future guideline 
sentencing system. A court is not precluded from considering 
information that the guidelines do not take into account in determining 
a sentence within the guideline range or from considering that 
information in determining whether and to what extent to depart from 
the guidelines. For example, if the defendant committed two robberies, 
but as part of a plea negotiation entered a guilty plea to only one, 
the robbery that was not taken into account by the guidelines would 
provide a reason for sentencing at the top of the guideline range and 
may provide a reason for an upward departure. Some policy statements 
do, however, express a Commission policy that certain factors should 
not be considered for any purpose, or should be considered only for 
limited purposes. See, e.g., Chapter Five, Part H (Specific Offender 
Characteristics).'';
    and inserting the following:
    ``This section distinguishes between factors that determine the 
applicable guideline sentencing range (Sec.  1B1.3) and information 
that a court may consider in imposing a sentence. The section is based 
on 18 U.S.C. 3661, which recodifies 18 U.S.C. 3577. The recodification 
of this 1970 statute in 1984 with an effective date of 1987 (99 Stat. 
1728), makes it clear that Congress intended that no limitation would 
be placed on the information that a court may consider in imposing an 
appropriate sentence under the future guideline sentencing system. A 
court is not precluded from considering information that the guidelines 
do not take into account. For example, if the defendant committed two 
robberies, but as part of a plea negotiation entered a guilty plea to 
only one, the robbery that was not taken into account by the guidelines 
may provide a reason for sentencing at the top of, or above, the 
guideline range.''.
    Section 1B1.7 is amended by striking the following:
    ``The Commentary that accompanies the guideline sections may serve 
a number of purposes. First, it may interpret the guideline or explain 
how it is to be applied. Failure to follow such commentary could 
constitute an incorrect application of the guidelines, subjecting the 
sentence to possible reversal on appeal. See 18 U.S.C. 3742. Second, 
the commentary may suggest circumstances which, in the view of the 
Commission, may warrant departure from the guidelines. Such commentary 
is to be treated as the legal equivalent of a policy statement. 
Finally, the commentary may provide background information, including 
factors considered in promulgating the guideline or reasons underlying 
promulgation of the guideline. As with a policy statement, such 
commentary may provide guidance in assessing the reasonableness of any 
departure from the guidelines.'';
    and inserting the following:
    ``The Commentary that accompanies the guideline sections may serve 
a number of purposes. It may interpret the guideline or explain how it 
is to be applied. Failure to follow such commentary could constitute an 
incorrect application of the guidelines, subjecting the sentence to 
possible reversal on appeal. See 18 U.S.C. 3742. In addition, the 
commentary may provide background information, including factors 
considered in promulgating the guideline or reasons underlying 
promulgation of the guideline.''.
    Section 1B1.8(b)(5) is amended by striking ``in determining 
whether, or to what extent, a downward departure from the guidelines is 
warranted pursuant to a government motion under Sec.  5K1.1 
(Substantial Assistance to Authorities)'' and inserting ``in 
determining whether, or to what extent, to impose a sentence that is 
below the otherwise applicable guideline range pursuant to a government 
motion under Sec.  5K1.1 (Substantial Assistance to Authorities)''.
    The Commentary to Sec.  1B1.8 captioned ``Application Notes'' is 
amended in Note 1 by striking ``Although the guideline itself affects 
only the determination of the guideline range, the policy of the 
Commission, as a corollary, is that information prohibited from being 
used to determine the applicable guideline range shall not be used to 
depart upward. In contrast, subsection (b)(5) provides that 
consideration of such information is appropriate in determining 
whether, and to what extent, a downward departure is warranted pursuant 
to a government motion under Sec.  5K1.1 (Substantial Assistance to 
Authorities); e.g., a court may refuse to depart downward on the basis 
of such information.'' and inserting ``In contrast, subsection (b)(5) 
provides that consideration of such information is appropriate in 
determining whether, or to what extent, to impose a sentence that is 
below the otherwise applicable guideline range pursuant to a government 
motion under Sec.  5K1.1 (Substantial Assistance to Authorities). For 
example, a court may refuse to

[[Page 19829]]

impose a sentence that is below the otherwise applicable guideline 
range on the basis of such information.''.
    The Commentary to Sec.  1B1.9 captioned ``Application Notes'' is 
amended in Note 2 by adding at the end of the paragraph the following: 
``For example, in a case where the defendant wore or displayed an 
official, or counterfeit official, insignia or uniform received in 
violation of 18 U.S.C. 716 while committing an offense covered by the 
guidelines, it would be appropriate for the court to consider this fact 
as an aggravating factor in determining the appropriate sentence even 
though section 716 is a Class B misdemeanor not covered by the 
guidelines. See Violence Against Women and Department of Justice 
Reauthorization Act of 2005, Pub. L. 109-162, 1191(c).''.
    The Commentary to Sec.  1B1.10 captioned ``Application Notes,'' as 
amended by Amendment 4 of this document, is further amended--
    in Note 1(A) by striking ``(i.e., the guideline range that 
corresponds to the offense level and criminal history category 
determined pursuant to Sec.  1B1.1(a), which is determined before 
consideration of any departure provision in the Guidelines Manual or 
any variance)'' and inserting ``(i.e., the guideline range that 
corresponds to the offense level and criminal history category 
determined pursuant to Sec.  1B1.1(a)(1)-(7), which is determined 
before consideration of Part K of Chapter Five and Sec.  1B1.1(b))'';
    and in Note 3 by striking ``(constituting a downward departure or 
variance)'' and inserting ``(constituting a sentence that is below the 
otherwise applicable guideline range)''; by striking ``(representing a 
downward departure of 20 percent'' and inserting ``(representing a 
reduction of 20 percent''; and by striking ``(authorizing, upon 
government motion, a downward departure based on the defendant's 
substantial assistance)'' and inserting ``(authorizing the court, upon 
government motion, to impose a sentence that is below the otherwise 
applicable guideline range based on the defendant's substantial 
assistance)''.
    Section 1B1.12 is amended by striking ``sufficient to warrant an 
upward departure from that guideline range. United States v. R.L.C., 
503 U.S. 291 (1992)'' and inserting ``sufficient to warrant imposing a 
sentence greater than that guideline range in determining the 
appropriate sentence to impose pursuant to 18 U.S.C. 3553(a). See 18 
U.S.C. 5037(c); United States v. R.L.C., 503 U.S. 291 (1992)''.
    Chapter Two is amended in the Introductory Commentary by striking 
``Chapter Four, Parts B (Career Offenders and Criminal Livelihood) and 
C (Adjustment for Certain Zero-Point Offenders); and Chapter Five, Part 
K (Departures)'' and inserting: ``and Chapter Four, Parts B (Career 
Offenders and Criminal Livelihood) and C (Adjustment for Certain Zero-
Point Offenders)''.
    The Commentary to Sec.  2A1.1 captioned ``Application Notes'' is 
amended in Note 2 by striking the following:
    ``Imposition of Life Sentence.--
    (A) Offenses Involving Premeditated Killing.--In the case of 
premeditated killing, life imprisonment is the appropriate sentence if 
a sentence of death is not imposed. A downward departure would not be 
appropriate in such a case. A downward departure from a mandatory 
statutory term of life imprisonment is permissible only in cases in 
which the government files a motion for a downward departure for the 
defendant's substantial assistance, as provided in 18 U.S.C. 3553(e).
    (B) Felony Murder.--If the defendant did not cause the death 
intentionally or knowingly, a downward departure may be warranted. For 
example, a downward departure may be warranted if in robbing a bank, 
the defendant merely passed a note to the teller, as a result of which 
the teller had a heart attack and died. The extent of the departure 
should be based upon the defendant's state of mind (e.g., recklessness 
or negligence), the degree of risk inherent in the conduct, and the 
nature of the underlying offense conduct. However, departure below the 
minimum guideline sentence provided for second degree murder in Sec.  
2A1.2 (Second Degree Murder) is not likely to be appropriate. Also, 
because death obviously is an aggravating factor, it necessarily would 
be inappropriate to impose a sentence at a level below that which the 
guideline for the underlying offense requires in the absence of 
death.'';
    and inserting the following:
    ``Offenses Involving Premeditated Killing.--In the case of 
premeditated killing, life imprisonment is the appropriate sentence if 
a sentence of death is not imposed. If a mandatory statutory term of 
life imprisonment applies, a lesser term of imprisonment is permissible 
only in cases in which the government files a motion pertaining to the 
defendant's substantial assistance, as provided in 18 U.S.C. 
3553(e).''.
    The Commentary to Sec.  2A1.2 is amended by striking the Commentary 
captioned ``Application Note'' in its entirety as follows:
    ``Application Note:
    1. Upward Departure Provision.--If the defendant's conduct was 
exceptionally heinous, cruel, brutal, or degrading to the victim, an 
upward departure may be warranted. See Sec.  5K2.8 (Extreme 
Conduct).''.
    The Commentary to Sec.  2A2.1 captioned ``Application Notes'' is 
amended--
    in the caption by striking ``Notes'' and inserting ``Note'';
    and by striking Note 2 as follows:
    ``2. Upward Departure Provision.--If the offense created a 
substantial risk of death or serious bodily injury to more than one 
person, an upward departure may be warranted.''.
    The Commentary to Sec.  2A2.4 captioned ``Application Notes'' is 
amended by striking Note 3 as follows:
    ``3. Upward Departure Provision.--The base offense level does not 
assume any significant disruption of governmental functions. In 
situations involving such disruption, an upward departure may be 
warranted. See Sec.  5K2.7 (Disruption of Governmental Function).''.
    The Commentary to Sec.  2A3.1 captioned ``Application Notes'' is 
amended by striking Note 6 as follows:
    ``6. Upward Departure Provision.--If a victim was sexually abused 
by more than one participant, an upward departure may be warranted. See 
Sec.  5K2.8 (Extreme Conduct).''.
    The Commentary to Sec.  2A3.2 captioned ``Application Notes'' is 
amended by striking Note 6 as follows:
    ``6. Upward Departure Consideration.--There may be cases in which 
the offense level determined under this guideline substantially 
understates the seriousness of the offense. In such cases, an upward 
departure may be warranted. For example, an upward departure may be 
warranted if the defendant committed the criminal sexual act in 
furtherance of a commercial scheme such as pandering, transporting 
persons for the purpose of prostitution, or the production of 
pornography.''.
    The Commentary to Sec.  2A3.6 captioned ``Application Notes'' is 
amended by striking Note 4 as follows:
    ``4. Upward Departure.--In a case in which the guideline sentence 
is determined under subsection (a), a sentence above the minimum term 
required by 18 U.S.C. 2250(d) is an upward departure from the guideline 
sentence. A departure may be warranted, for example, in a case 
involving a sex offense committed against a minor or if the offense 
resulted in serious bodily injury to a minor.''.
    The Commentary to Sec.  2A5.3 captioned ``Application Notes'' is 
amended--
    in the caption by striking ``Notes'' and inserting ``Note'';
    and by striking Note 2 as follows:

[[Page 19830]]

    ``2. If the conduct intentionally or recklessly endangered the 
safety of the aircraft or passengers, an upward departure may be 
warranted.''.
    The Commentary to Sec.  2A6.1 captioned ``Application Notes'' is 
amended by striking Note 4 as follows:
    ``4. Departure Provisions.--
    (A) In General.--The Commission recognizes that offenses covered by 
this guideline may include a particularly wide range of conduct and 
that it is not possible to include all of the potentially relevant 
circumstances in the offense level. Factors not incorporated in the 
guideline may be considered by the court in determining whether a 
departure from the guidelines is warranted. See Chapter Five, Part K 
(Departures).
    (B) Multiple Threats, False Liens or Encumbrances, or Victims; 
Pecuniary Harm.--If the offense involved (i) substantially more than 
two threatening communications to the same victim, (ii) a prolonged 
period of making harassing communications to the same victim, (iii) 
substantially more than two false liens or encumbrances against the 
real or personal property of the same victim, (iv) multiple victims, or 
(v) substantial pecuniary harm to a victim, an upward departure may be 
warranted.''.
    The Commentary to Sec.  2A6.2 captioned ``Application Notes'' is 
amended by striking Note 5 as follows:
    ``5. If the defendant received an enhancement under subsection 
(b)(1) but that enhancement does not adequately reflect the extent or 
seriousness of the conduct involved, an upward departure may be 
warranted. For example, an upward departure may be warranted if the 
defendant stalked the victim on many occasions over a prolonged period 
of time.''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended--
    in Note 8(A) by striking ``If, in a particular case, however, more 
than one of the enumerated factors applied, an upward departure may be 
warranted.'';
    and by striking Note 21 as follows:
    ``21. Departure Considerations.--
    (A) Upward Departure Considerations.--There may be cases in which 
the offense level determined under this guideline substantially 
understates the seriousness of the offense. In such cases, an upward 
departure may be warranted. The following is a non-exhaustive list of 
factors that the court may consider in determining whether an upward 
departure is warranted:
    (i) A primary objective of the offense was an aggravating, non-
monetary objective. For example, a primary objective of the offense was 
to inflict emotional harm.
    (ii) The offense caused or risked substantial non-monetary harm. 
For example, the offense caused physical harm, psychological harm, or 
severe emotional trauma, or resulted in a substantial invasion of a 
privacy interest (through, for example, the theft of personal 
information such as medical, educational, or financial records). An 
upward departure would be warranted, for example, in an 18 U.S.C. 1030 
offense involving damage to a protected computer, if, as a result of 
that offense, death resulted. An upward departure also would be 
warranted, for example, in a case involving animal enterprise terrorism 
under 18 U.S.C. 43, if, in the course of the offense, serious bodily 
injury or death resulted, or substantial scientific research or 
information were destroyed. Similarly, an upward departure would be 
warranted in a case involving conduct described in 18 U.S.C. 670 if the 
offense resulted in serious bodily injury or death, including serious 
bodily injury or death resulting from the use of the pre-retail medical 
product.
    (iii) The offense involved a substantial amount of interest of any 
kind, finance charges, late fees, penalties, amounts based on an 
agreed-upon return or rate of return, or other similar costs, not 
included in the determination of loss for purposes of subsection 
(b)(1).
    (iv) The offense created a risk of substantial loss beyond the loss 
determined for purposes of subsection (b)(1), such as a risk of a 
significant disruption of a national financial market.
    (v) In a case involving stolen information from a `protected 
computer', as defined in 18 U.S.C. 1030(e)(2), the defendant sought the 
stolen information to further a broader criminal purpose.
    (vi) In a case involving access devices or unlawfully produced or 
unlawfully obtained means of identification:
    (I) The offense caused substantial harm to the victim's reputation, 
or the victim suffered a substantial inconvenience related to repairing 
the victim's reputation.
    (II) An individual whose means of identification the defendant used 
to obtain unlawful means of identification is erroneously arrested or 
denied a job because an arrest record has been made in that 
individual's name.
    (III) The defendant produced or obtained numerous means of 
identification with respect to one individual and essentially assumed 
that individual's identity.
    (B) Upward Departure for Debilitating Impact on a Critical 
Infrastructure.--An upward departure would be warranted in a case in 
which subsection (b)(19)(A)(iii) applies and the disruption to the 
critical infrastructure(s) is so substantial as to have a debilitating 
impact on national security, national economic security, national 
public health or safety, or any combination of those matters.
    (C) Downward Departure Consideration.--There may be cases in which 
the offense level determined under this guideline substantially 
overstates the seriousness of the offense. In such cases, a downward 
departure may be warranted.
    For example, a securities fraud involving a fraudulent statement 
made publicly to the market may produce an aggregate loss amount that 
is substantial but diffuse, with relatively small loss amounts suffered 
by a relatively large number of victims. In such a case, the loss table 
in subsection (b)(1) and the victims table in subsection (b)(2) may 
combine to produce an offense level that substantially overstates the 
seriousness of the offense. If so, a downward departure may be 
warranted.
    (D) Downward Departure for Major Disaster or Emergency Victims.--If 
(i) the minimum offense level of level 12 in subsection (b)(12) 
applies; (ii) the defendant sustained damage, loss, hardship, or 
suffering caused by a major disaster or an emergency as those terms are 
defined in 42 U.S.C. 5122; and (iii) the benefits received illegally 
were only an extension or overpayment of benefits received 
legitimately, a downward departure may be warranted.''.
    The Commentary to Sec.  2B1.5 captioned ``Application Notes'' is 
amended by striking Note 9 as follows:
    ``9. Upward Departure Provision.--There may be cases in which the 
offense level determined under this guideline substantially understates 
the seriousness of the offense. In such cases, an upward departure may 
be warranted. For example, an upward departure may be warranted if (A) 
in addition to cultural heritage resources or paleontological 
resources, the offense involved theft of, damage to, or destruction of, 
items that are not cultural heritage resources (such as an offense 
involving the theft from a national cemetery of lawnmowers and other 
administrative property in addition to historic gravemarkers or other 
cultural heritage resources) or paleontological resources; or (B) the 
offense involved a cultural heritage resource that has profound 
significance to cultural identity (e.g., the Statue of Liberty or the 
Liberty Bell).''.

[[Page 19831]]

    The Commentary to Sec.  2B2.1 captioned ``Background'' is amended 
by striking ``Weapon use would be a ground for upward departure.''.
    The Commentary to Sec.  2B3.1 captioned ``Application Notes,'' as 
amended by Amendment 1 of this document, is further amended--
    by striking Note 5 as follows:
    ``5. Upward Departure Provision.--If the defendant intended to 
murder the victim, an upward departure may be warranted; see Sec.  
2A2.1 (Assault with Intent to Commit Murder; Attempted Murder).'';
    and by redesignating Note 6 as Note 5.
    The Commentary to Sec.  2B3.2 captioned ``Application Notes,'' as 
amended by Amendment 1 of this document, is further amended by striking 
Notes 7 and 8 as follows:
    ``7. Upward Departure Based on Threat of Death or Serious Bodily 
Injury to Numerous Victims.--If the offense involved the threat of 
death or serious bodily injury to numerous victims (e.g., in the case 
of a plan to derail a passenger train or poison consumer products), an 
upward departure may be warranted.
    8. Upward Departure Based on Organized Criminal Activity or Threat 
to Family Member of Victim.--If the offense involved organized criminal 
activity, or a threat to a family member of the victim, an upward 
departure may be warranted.''.
    The Commentary to Sec.  2B5.3 captioned ``Application Notes'' is 
amended by striking Note 5 as follows:
    ``5. Departure Considerations.--If the offense level determined 
under this guideline substantially understates or overstates the 
seriousness of the offense, a departure may be warranted. The following 
is a non-exhaustive list of factors that the court may consider in 
determining whether a departure may be warranted:
    (A) The offense involved substantial harm to the reputation of the 
copyright or trademark owner.
    (B) The offense was committed in connection with, or in furtherance 
of, the criminal activities of a national, or international, organized 
criminal enterprise.
    (C) The method used to calculate the infringement amount is based 
upon a formula or extrapolation that results in an estimated amount 
that may substantially exceed the actual pecuniary harm to the 
copyright or trademark owner.
    (D) The offense resulted in death or serious bodily injury.''.
    The Commentary to Sec.  2C1.1 captioned ``Application Notes'' is 
amended--
    in Note 5 by striking ``Chapter Three, Parts A-D'' and inserting 
``Chapter Three, Parts A-E'';
    and by striking Note 7 as follows:
    ``7. Upward Departure Provisions.--In some cases the monetary value 
of the unlawful payment may not be known or may not adequately reflect 
the seriousness of the offense. For example, a small payment may be 
made in exchange for the falsification of inspection records for a 
shipment of defective parachutes or the destruction of evidence in a 
major narcotics case. In part, this issue is addressed by the 
enhancements in Sec.  2C1.1(b)(2) and (c)(1), (2), and (3). However, in 
cases in which the seriousness of the offense is still not adequately 
reflected, an upward departure is warranted. See Chapter Five, Part K 
(Departures).
    In a case in which the court finds that the defendant's conduct was 
part of a systematic or pervasive corruption of a governmental 
function, process, or office that may cause loss of public confidence 
in government, an upward departure may be warranted. See Sec.  5K2.7 
(Disruption of Governmental Function).''.
    The Commentary to Sec.  2C1.8 captioned ``Application Notes'' is 
amended by striking Note 4 as follows:
    ``4. Departure Provision.--In a case in which the defendant's 
conduct was part of a systematic or pervasive corruption of a 
governmental function, process, or office that may cause loss of public 
confidence in government, an upward departure may be warranted.''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended--
    in Note 3 by striking the following paragraph:
    ``An upward departure nonetheless may be warranted when the mixture 
or substance counted in the Drug Quantity Table is combined with other, 
non-countable material in an unusually sophisticated manner in order to 
avoid detection.'';
    in Note 10 by striking the following paragraph:
    ``In the case of liquid LSD (LSD that has not been placed onto a 
carrier medium), using the weight of the LSD alone to calculate the 
offense level may not adequately reflect the seriousness of the 
offense. In such a case, an upward departure may be warranted.'';
    in Note 18(A) by striking ``In some cases, the enhancement under 
subsection (b)(14)(A) may not account adequately for the seriousness of 
the environmental harm or other threat to public health or safety 
(including the health or safety of law enforcement and cleanup 
personnel). In such cases, an upward departure may be warranted. 
Additionally, in determining'' and inserting ``In determining'';
    in Note 22 by striking the following:
    ``Application of Subsection (e)(1).--
    (A) Definition.--For purposes of this guideline, `sexual offense' 
means a `sexual act' or `sexual contact' as those terms are defined in 
18 U.S.C. 2246(2) and (3), respectively.
    (B) Upward Departure Provision.--If the defendant committed a 
sexual offense against more than one individual, an upward departure 
would be warranted.'',
    and inserting the following:
    ``Application of Subsection (e)(1).--For purposes of this 
guideline, `sexual offense' means a `sexual act' or `sexual contact' as 
those terms are defined in 18 U.S.C. 2246(2) and (3), respectively.'';
    in Note 24 by striking ``a lower sentence imposed (including a 
downward departure)'' and inserting ``a lower sentence imposed'';
    and by striking Note 27 as follows:
    ``27. Departure Considerations.--
    (A) Downward Departure Based on Drug Quantity in Certain Reverse 
Sting Operations.--If, in a reverse sting (an operation in which a 
government agent sells or negotiates to sell a controlled substance to 
a defendant), the court finds that the government agent set a price for 
the controlled substance that was substantially below the market value 
of the controlled substance, thereby leading to the defendant's 
purchase of a significantly greater quantity of the controlled 
substance than his available resources would have allowed him to 
purchase except for the artificially low price set by the government 
agent, a downward departure may be warranted.
    (B) Upward Departure Based on Drug Quantity.--In an extraordinary 
case, an upward departure above offense level 38 on the basis of drug 
quantity may be warranted. For example, an upward departure may be 
warranted where the quantity is at least ten times the minimum quantity 
required for level 38. Similarly, in the case of a controlled substance 
for which the maximum offense level is less than level 38, an upward 
departure may be warranted if the drug quantity substantially exceeds 
the quantity for the highest offense level established for that 
particular controlled substance.
    (C) Upward Departure Based on Unusually High Purity.--Trafficking 
in controlled substances, compounds, or mixtures of unusually high 
purity may warrant an upward departure, except in the case of PCP, 
amphetamine, methamphetamine, hydrocodone, or oxycodone for which the 
guideline itself provides for the consideration of purity

[[Page 19832]]

(see the footnote to the Drug Quantity Table). The purity of the 
controlled substance, particularly in the case of heroin, may be 
relevant in the sentencing process because it is probative of the 
defendant's role or position in the chain of distribution. Since 
controlled substances are often diluted and combined with other 
substances as they pass down the chain of distribution, the fact that a 
defendant is in possession of unusually pure narcotics may indicate a 
prominent role in the criminal enterprise and proximity to the source 
of the drugs. As large quantities are normally associated with high 
purities, this factor is particularly relevant where smaller quantities 
are involved.
    (D) Departure Based on Potency of Synthetic Cathinones.--In 
addition to providing converted drug weights for specific controlled 
substances and groups of substances, the Drug Conversion Tables provide 
converted drug weights for certain classes of controlled substances, 
such as synthetic cathinones. In the case of a synthetic cathinone that 
is not specifically referenced in this guideline, the converted drug 
weight for the class should be used to determine the appropriate 
offense level. However, there may be cases in which a substantially 
lesser or greater quantity of a synthetic cathinone is needed to 
produce an effect on the central nervous system similar to the effect 
produced by a typical synthetic cathinone in the class, such as 
methcathinone or alpha-PVP. In such a case, a departure may be 
warranted. For example, an upward departure may be warranted in cases 
involving MDPV, a substance of which a lesser quantity is usually 
needed to produce an effect on the central nervous system similar to 
the effect produced by a typical synthetic cathinone. In contrast, a 
downward departure may be warranted in cases involving methylone, a 
substance of which a greater quantity is usually needed to produce an 
effect on the central nervous system similar to the effect produced by 
a typical synthetic cathinone.
    (E) Departures for Certain Cases involving Synthetic 
Cannabinoids.--
    (i) Departure Based on Concentration of Synthetic Cannabinoids.--
Synthetic cannabinoids are manufactured as powder or crystalline 
substances. The concentrated substance is then usually sprayed on or 
soaked into a plant or other base material, and trafficked as part of a 
mixture. Nonetheless, there may be cases in which the substance 
involved in the offense is a synthetic cannabinoid not combined with 
any other substance. In such a case, an upward departure would be 
warranted.
    There also may be cases in which the substance involved in the 
offense is a mixture containing a synthetic cannabinoid diluted with an 
unusually high quantity of base material. In such a case, a downward 
departure may be warranted.
    (ii) Downward Departure Based on Potency of Synthetic 
Cannabinoids.--In the case of a synthetic cannabinoid that is not 
specifically referenced in this guideline, the converted drug weight 
for the class should be used to determine the appropriate offense 
level. However, there may be cases in which a substantially greater 
quantity of a synthetic cannabinoid is needed to produce an effect on 
the central nervous system similar to the effect produced by a typical 
synthetic cannabinoid in the class, such as JWH-018 or AM-2201. In such 
a case, a downward departure may be warranted.''.
    The Commentary to Sec.  2D1.5 captioned ``Application Notes'' is 
amended--
    by striking Note 2 as follows:
    ``2. Upward Departure Provision.--If as part of the enterprise the 
defendant sanctioned the use of violence, or if the number of persons 
managed by the defendant was extremely large, an upward departure may 
be warranted.'';
    and by redesignating Notes 3 and 4 as Notes 2 and 3, respectively.
    The Commentary to Sec.  2D1.7 is amended by striking the Commentary 
captioned ``Application Note'' in its entirety as follows:
    ``Application Note:
    1. The typical case addressed by this guideline involves small-
scale trafficking in drug paraphernalia (generally from a retail 
establishment that also sells items that are not unlawful). In a case 
involving a large-scale dealer, distributor, or manufacturer, an upward 
departure may be warranted. Conversely, where the offense was not 
committed for pecuniary gain (e.g., transportation for the defendant's 
personal use), a downward departure may be warranted.''.
    The Commentary to Sec.  2D1.11 captioned ``Application Notes'' is 
amended--
    in Note 1 by striking subparagraph (C) as follows:
    ``(C) Upward Departure.--In a case involving two or more chemicals 
used to manufacture different controlled substances, or to manufacture 
one controlled substance by different manufacturing processes, an 
upward departure may be warranted if the offense level does not 
adequately address the seriousness of the offense.'';
    and in Note 4 by striking ``In some cases, the enhancement under 
subsection (b)(3) may not adequately account for the seriousness of the 
environmental harm or other threat to public health or safety 
(including the health or safety of law enforcement and cleanup 
personnel). In such cases, an upward departure may be warranted. 
Additionally, any costs'' and inserting ``Any costs''.
    The Commentary to Sec.  2D1.12 captioned ``Application Notes'' is 
amended--
    by striking Note 1 as follows:
    ``1. If the offense involved the large-scale manufacture, 
distribution, transportation, exportation, or importation of prohibited 
flasks, equipment, chemicals, products, or material, an upward 
departure may be warranted.'';
    by redesignating Notes 2, 3, and 4 as Notes 1, 2, and 3, 
respectively;
    and in Note 2 (as so redesignated) by striking ``In some cases, the 
enhancement under subsection (b)(2) may not adequately account for the 
seriousness of the environmental harm or other threat to public health 
or safety (including the health or safety of law enforcement and 
cleanup personnel). In such cases, an upward departure may be 
warranted. Additionally, any costs'' and inserting ``Any costs''.
    The Commentary to Sec.  2D2.1 is amended by striking the Commentary 
captioned ``Application Note'' in its entirety as follows:
    ``Application Note:
    1. The typical case addressed by this guideline involves possession 
of a controlled substance by the defendant for the defendant's own 
consumption. Where the circumstances establish intended consumption by 
a person other than the defendant, an upward departure may be 
warranted.''.
    The Commentary to Sec.  2D2.3 captioned ``Background'' is amended 
by striking ``If no or only a few passengers were placed at risk, a 
downward departure may be warranted. If the offense resulted in the 
death or serious bodily injury of a large number of persons, such that 
the resulting offense level under subsection (b) would not adequately 
reflect the seriousness of the offense, an upward departure may be 
warranted.''.
    The Commentary to Sec.  2E1.1 captioned ``Application Notes'' is 
amended in Note 4 by striking ``If this treatment produces an anomalous 
result in a particular case, a guideline departure may be warranted.''.
    The Commentary to Sec.  2E3.1 captioned ``Application Notes'' is 
amended--

[[Page 19833]]

    in the caption by striking ``Notes'' and inserting ``Note'';
    and by striking Note 2 as follows:
    ``2. Upward Departure Provision.--The base offense levels provided 
for animal fighting ventures in subsection (a)(1) and (a)(3) reflect 
that an animal fighting venture involves one or more violent fights 
between animals and that a defeated animal often is severely injured in 
the fight, dies as a result of the fight, or is killed afterward. 
Nonetheless, there may be cases in which the offense level determined 
under this guideline substantially understates the seriousness of the 
offense. In such a case, an upward departure may be warranted. For 
example, an upward departure may be warranted if (A) the offense 
involved extraordinary cruelty to an animal beyond the violence 
inherent in such a venture (such as by killing an animal in a way that 
prolongs the suffering of the animal); or (B) the offense involved 
animal fighting on an exceptional scale (such as an offense involving 
an unusually large number of animals).''.
    The Commentary to Sec.  2G1.1 captioned ``Application Notes'' is 
amended--
    in Note 2 by striking ``If bodily injury results, an upward 
departure may be warranted. See Chapter Five, Part K (Departures).'';
    and by striking Note 6 as follows:
    ``6. Upward Departure Provision.--If the offense involved more than 
ten victims, an upward departure may be warranted.''.
    The Commentary to Sec.  2G1.3 captioned ``Application Notes'' is 
amended by striking Note 7 as follows:
    ``7. Upward Departure Provision.--If the offense involved more than 
ten minors, an upward departure may be warranted.''.
    The Commentary to Sec.  2G2.1 captioned ``Application Notes'' is 
amended by striking Note 8 as follows:
    ``8. Upward Departure Provision.--An upward departure may be 
warranted if the offense involved more than 10 minors.''.
    The Commentary to Sec.  2G2.2 captioned ``Application Notes'' is 
amended--
    in Note 6(B)(i) by striking ``If the number of images substantially 
underrepresents the number of minors depicted, an upward departure may 
be warranted.'';
    in Note 6(B)(ii) by striking ``If the length of the visual 
depiction is substantially more than 5 minutes, an upward departure may 
be warranted.'';
    and by striking Note 9 as follows:
    ``9. Upward Departure Provision.--If the defendant engaged in the 
sexual abuse or exploitation of a minor at any time (whether or not 
such abuse or exploitation occurred during the course of the offense or 
resulted in a conviction for such conduct) and subsection (b)(5) does 
not apply, an upward departure may be warranted. In addition, an upward 
departure may be warranted if the defendant received an enhancement 
under subsection (b)(5) but that enhancement does not adequately 
reflect the seriousness of the sexual abuse or exploitation 
involved.''.
    The Commentary to Sec.  2H2.1 is amended by striking the Commentary 
captioned ``Application Note'' in its entirety as follows:
    ``Application Note:
    1. Upward Departure Provision.--If the offense resulted in bodily 
injury or significant property damage, or involved corrupting a public 
official, an upward departure may be warranted. See Chapter Five, Part 
K (Departures).''.
    The Commentary to Sec.  2H3.1 captioned ``Application Notes'' is 
amended by striking Note 5 as follows:
    ``5. Upward Departure.--There may be cases in which the offense 
level determined under this guideline substantially understates the 
seriousness of the offense. In such a case, an upward departure may be 
warranted. The following are examples of cases in which an upward 
departure may be warranted:
    (A) The offense involved personal information, means of 
identification, confidential phone records information, or tax return 
information of a substantial number of individuals.
    (B) The offense caused or risked substantial non-monetary harm 
(e.g., physical harm, psychological harm, or severe emotional trauma, 
or resulted in a substantial invasion of privacy interest) to 
individuals whose private or protected information was obtained.''.
    The Commentary to Sec.  2H4.1 captioned ``Application Notes'' is 
amended by striking Notes 3 and 4 as follows:
    ``3. If the offense involved the holding of more than ten victims 
in a condition of peonage or involuntary servitude, an upward departure 
may be warranted.
    4. In a case in which the defendant was convicted under 18 U.S.C. 
1589(b) or 1593A, a downward departure may be warranted if the 
defendant benefitted from participating in a venture described in those 
sections without knowing that (i.e., in reckless disregard of the fact 
that) the venture had engaged in the criminal activity described in 
those sections.''.
    The Commentary to Sec.  2J1.2 captioned ``Application Notes'' is 
amended--
    by striking Note 4 as follows:
    ``4. Upward Departure Considerations.--If a weapon was used, or 
bodily injury or significant property damage resulted, an upward 
departure may be warranted. See Chapter Five, Part K (Departures). In a 
case involving an act of extreme violence (for example, retaliating 
against a government witness by throwing acid in the witness's face) or 
a particularly serious sex offense, an upward departure would be 
warranted.'';
    and by redesignating Note 5 as Note 4.
    The Commentary to Sec.  2J1.3 captioned ``Application Notes'' is 
amended--
    by striking Note 4 as follows:
    ``4. If a weapon was used, or bodily injury or significant property 
damage resulted, an upward departure may be warranted. See Chapter 
Five, Part K (Departures).'';
    and by redesignating Note 5 as Note 4.
    The Commentary to Sec.  2J1.6 captioned ``Application Notes'' is 
amended--
    by striking Note 4 as follows:
    ``4. If a defendant is convicted of both the underlying offense and 
the failure to appear count, and the defendant committed additional 
acts of obstructive behavior (e.g., perjury) during the investigation, 
prosecution, or sentencing of the instant offense, an upward departure 
may be warranted. The upward departure will ensure an enhanced sentence 
for obstructive conduct for which no adjustment under Sec.  3C1.1 
(Obstructing or Impeding the Administration of Justice) is made because 
of the operation of the rules set out in Application Note 3.'';
    and by redesignating Note 5 as Note 4.
    The Commentary to Sec.  2K1.3 captioned ``Application Notes'' is 
amended--
    by striking Note 10 as follows:
    ``10. An upward departure may be warranted in any of the following 
circumstances: (A) the quantity of explosive materials significantly 
exceeded 1000 pounds; (B) the explosive materials were of a nature more 
volatile or dangerous than dynamite or conventional powder explosives 
(e.g., plastic explosives); (C) the defendant knowingly distributed 
explosive materials to a person under twenty-one years of age; or (D) 
the offense posed a substantial risk of death or bodily injury to 
multiple individuals.'';
    by redesignating Note 11 as Note 10;
    and in Note 10 (as so redesignated) by striking ``However, where 
the defendant used or possessed a firearm or explosive to facilitate 
another firearms or explosives offense (e.g., the defendant used or 
possessed a firearm to protect the delivery of an unlawful shipment of 
explosives), an upward departure under

[[Page 19834]]

Sec.  5K2.6 (Weapons and Dangerous Instrumentalities) may be 
warranted.''.
    The Commentary to Sec.  2K1.4 captioned ``Application Notes'' is 
amended by striking Note 3 as follows:
    ``3. Upward Departure Provision.--If bodily injury resulted, an 
upward departure may be warranted. See Chapter Five, Part K 
(Departures).''.
    Section 2K2.1(b)(10)(B), as redesignated by Amendment 3 of this 
document, is amended by striking ``, before application of subsection 
(b) of Sec.  4A1.3 (Departures Based on Inadequacy of Criminal History 
Category)''.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes,'' as 
amended by Amendment 3 of this document, is further amended--
    in Note 7 by striking the following:
    ``Offenses involving such devices cover a wide range of offense 
conduct and involve different degrees of risk to the public welfare 
depending on the type of destructive device involved and the location 
or manner in which that destructive device was possessed or 
transported. For example, a pipe bomb in a populated train station 
creates a substantially greater risk to the public welfare, and a 
substantially greater risk of death or serious bodily injury, than an 
incendiary device in an isolated area. In a case in which the 
cumulative result of the increased base offense level and the 
enhancement under subsection (b)(3) does not adequately capture the 
seriousness of the offense because of the type of destructive device 
involved, the risk to the public welfare, or the risk of death or 
serious bodily injury that the destructive device created, an upward 
departure may be warranted. See also Sec. Sec.  5K2.1 (Death), 5K2.2 
(Physical Injury), and 5K2.14 (Public Welfare).'';
    by striking Note 11 as follows:
    ``11. Upward Departure Provisions.--An upward departure may be 
warranted in any of the following circumstances: (A) the number of 
firearms substantially exceeded 200; (B) the offense involved multiple 
National Firearms Act weapons (e.g., machineguns, destructive devices), 
military type assault rifles, non-detectable (`plastic') firearms 
(defined at 18 U.S.C. 922(p)); (C) the offense involved large 
quantities of armor-piercing ammunition (defined at 18 U.S.C. 
921(a)(17)(B)); or (D) the offense posed a substantial risk of death or 
bodily injury to multiple individuals (see Application Note 7).'';
    by redesignating Notes 12, 13, and 14 as Notes 11, 12, and 13, 
respectively;
    in Note 12 (as so redesignated)--
    by striking subparagraph (B) as follows:
    ``(B) Upward Departure Provision.--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, an upward departure may be 
warranted.'';
    and by redesignating subparagraph (C) as subparagraph (B);
    and in Note 13 (as so redesignated)--
    by striking subparagraph (D) as follows:
    ``(D) Upward Departure Provision.--In a case in which the defendant 
used or possessed a firearm or explosive to facilitate another firearms 
or explosives offense (e.g., the defendant used or possessed a firearm 
to protect the delivery of an unlawful shipment of explosives), an 
upward departure under Sec.  5K2.6 (Weapons and Dangerous 
Instrumentalities) may be warranted.'';
    and by redesignating subparagraph (E) as subparagraph (D).
    Section 2K2.4(a) is amended by striking ``Chapters Three 
(Adjustments) and Four (Criminal History and Criminal Livelihood)'' and 
inserting ``Chapters Three (Adjustments), Parts A through E, and Four 
(Criminal History and Criminal Livelihood)''.
    Section 2K2.4(b) is amended by striking ``Chapters Three and Four'' 
and inserting ``Chapters Three, Parts A through E, and Four''.
    Section 2K2.4(c) is amended by striking ``Chapters Three and Four'' 
and inserting ``Chapters Three, Parts A through E, and Four''.
    The Commentary to Sec.  2K2.4 captioned ``Application Notes,'' as 
amended by Amendment 3 of this document, is further amended--
    in Note 2 by striking the following:
    ``Application of Subsection (b).--
    (A) In General.--Sections 924(c) and 929(a) of title 18, United 
States Code, provide mandatory minimum terms of imprisonment (e.g., not 
less than five years). Except as provided in subsection (c), in a case 
in which the defendant is convicted under 18 U.S.C. 924(c) or 929(a), 
the guideline sentence is the minimum term required by the relevant 
statute. Each of 18 U.S.C. 924(c) and 929(a) also requires that a term 
of imprisonment imposed under that section shall run consecutively to 
any other term of imprisonment.
    (B) Upward Departure Provision.--In a case in which the guideline 
sentence is determined under subsection (b), a sentence above the 
minimum term required by 18 U.S.C. 924(c) or 929(a) is an upward 
departure from the guideline sentence. A departure may be warranted, 
for example, to reflect the seriousness of the defendant's criminal 
history in a case in which the defendant is convicted of an 18 U.S.C. 
924(c) or 929(a) offense but is not determined to be a career offender 
under Sec.  4B1.1.'';
    and inserting the following:
    ``Application of Subsection (b).--Sections 924(c) and 929(a) of 
title 18, United States Code, provide mandatory minimum terms of 
imprisonment (e.g., not less than five years). Except as provided in 
subsection (c), in a case in which the defendant is convicted under 18 
U.S.C. 924(c) or 929(a), the guideline sentence is the minimum term 
required by the relevant statute. Each of 18 U.S.C. 924(c) and 929(a) 
also requires that a term of imprisonment imposed under that section 
shall run consecutively to any other term of imprisonment.'';
    in Note 4 by striking the subparagraph (C) as follows:
    ``(C) Upward Departure Provision.--In a few cases in which the 
defendant is determined not to be a career offender, the offense level 
for the underlying offense determined under the preceding paragraphs 
may result in a guideline range that, when combined with the mandatory 
consecutive sentence under 18 U.S.C. 844(h), 924(c), or 929(a), 
produces a total maximum penalty that is less than the maximum of the 
guideline range that would have resulted had there not been a count of 
conviction under 18 U.S.C. 844(h), 924(c), or 929(a) (i.e., the 
guideline range that would have resulted if the enhancements for 
possession, use, or discharge of a firearm had been applied). In such a 
case, an upward departure may be warranted so that the conviction under 
18 U.S.C. 844(h), 924(c), or 929(a) does not result in a decrease in 
the total punishment. An upward departure under this paragraph shall 
not exceed the maximum of the guideline range that would have resulted 
had there not been a count of conviction under 18 U.S.C. 844(h), 
924(c), or 929(a).'';
    and in Note 5 by striking ``Chapter Three (Adjustment) and Chapter 
Four (Criminal History and Criminal Livelihood)'' and inserting 
``Chapter Three (Adjustment), Parts A through E, and Chapter Four 
(Criminal History and Criminal Livelihood)''; and by striking ``no 
other adjustments in Chapter Three'' and inserting ``no other 
adjustments in Chapter Three, Parts A through D,''.
    The Commentary to Sec.  2K2.5 captioned ``Application Notes'' is 
amended by striking Note 4 as follows:
    ``4. Where the firearm was brandished, discharged, or otherwise 
used, in a federal facility, federal court facility, or school zone, 
and the cross reference from subsection (c)(1) does not

[[Page 19835]]

apply, an upward departure may be warranted.''.
    The Commentary to Sec.  2L1.1 captioned ``Application Notes'' is 
amended--
    in Note 4 by striking ``Application Note 1(M) of Sec.  1B1.1'' and 
inserting ``Application Note 1(L) of Sec.  1B1.1'';
    and by striking Note 7 as follows:
    ``7. Upward Departure Provisions.--An upward departure may be 
warranted in any of the following cases:
    (A) The defendant smuggled, transported, or harbored an alien 
knowing that the alien intended to enter the United States to engage in 
subversive activity, drug trafficking, or other serious criminal 
behavior.
    (B) The defendant smuggled, transported, or harbored an alien the 
defendant knew was inadmissible for reasons of security and related 
grounds, as set forth under 8 U.S.C. 1182(a)(3).
    (C) The offense involved substantially more than 100 aliens.''.
    The Commentary to Sec.  2L1.2 captioned ``Application Notes'' is 
amended by striking Notes 6, 7, and 8 as follows:
    ``6. Departure Based on Seriousness of a Prior Offense.--There may 
be cases in which the offense level provided by an enhancement in 
subsection (b)(2) or (b)(3) substantially understates or overstates the 
seriousness of the conduct underlying the prior offense, because (A) 
the length of the sentence imposed does not reflect the seriousness of 
the prior offense; (B) the prior conviction is too remote to receive 
criminal history points (see Sec.  4A1.2(e)); or (C) the time actually 
served was substantially less than the length of the sentence imposed 
for the prior offense. In such a case, a departure may be warranted.
    7. Departure Based on Time Served in State Custody.--In a case in 
which the defendant is located by immigration authorities while the 
defendant is serving time in state custody, whether pre- or post-
conviction, for a state offense, the time served is not covered by an 
adjustment under Sec.  5G1.3(b) and, accordingly, is not covered by a 
departure under Sec.  5K2.23 (Discharged Terms of Imprisonment). See 
Sec.  5G1.3(a). In such a case, the court may consider whether a 
departure is appropriate to reflect all or part of the time served in 
state custody, from the time immigration authorities locate the 
defendant until the service of the federal sentence commences, that the 
court determines will not be credited to the federal sentence by the 
Bureau of Prisons. Any such departure should be fashioned to achieve a 
reasonable punishment for the instant offense.
    Such a departure should be considered only in cases where the 
departure is not likely to increase the risk to the public from further 
crimes of the defendant. In determining whether such a departure is 
appropriate, the court should consider, among other things, (A) whether 
the defendant engaged in additional criminal activity after illegally 
reentering the United States; (B) the seriousness of any such 
additional criminal activity, including (1) whether the defendant used 
violence or credible threats of violence or possessed a firearm or 
other dangerous weapon (or induced another person to do so) in 
connection with the criminal activity, (2) whether the criminal 
activity resulted in death or serious bodily injury to any person, and 
(3) whether the defendant was an organizer, leader, manager, or 
supervisor of others in the criminal activity; and (C) the seriousness 
of the defendant's other criminal history.
    8. Departure Based on Cultural Assimilation.--There may be cases in 
which a downward departure may be appropriate on the basis of cultural 
assimilation. Such a departure should be considered only in cases where 
(A) the defendant formed cultural ties primarily with the United States 
from having resided continuously in the United States from childhood, 
(B) those cultural ties provided the primary motivation for the 
defendant's illegal reentry or continued presence in the United States, 
and (C) such a departure is not likely to increase the risk to the 
public from further crimes of the defendant.
    In determining whether such a departure is appropriate, the court 
should consider, among other things, (1) the age in childhood at which 
the defendant began residing continuously in the United States, (2) 
whether and for how long the defendant attended school in the United 
States, (3) the duration of the defendant's continued residence in the 
United States, (4) the duration of the defendant's presence outside the 
United States, (5) the nature and extent of the defendant's familial 
and cultural ties inside the United States, and the nature and extent 
of such ties outside the United States, (6) the seriousness of the 
defendant's criminal history, and (7) whether the defendant engaged in 
additional criminal activity after illegally reentering the United 
States.''.
    The Commentary to Sec.  2L2.1 captioned ``Application Notes'' is 
amended--
    by striking Note 3 as follows:
    ``3. Subsection (b)(3) provides an enhancement if the defendant 
knew, believed, or had reason to believe that a passport or visa was to 
be used to facilitate the commission of a felony offense, other than an 
offense involving violation of the immigration laws. If the defendant 
knew, believed, or had reason to believe that the felony offense to be 
committed was of an especially serious type, an upward departure may be 
warranted.'';
    by redesignating Note 4 as Note 3;
    and by striking Note 5 as follows:
    ``5. If the offense involved substantially more than 100 documents, 
an upward departure may be warranted.''.
    The Commentary to Sec.  2L2.2 captioned ``Application Notes'' is 
amended by striking Note 6 as follows:
    ``6. Upward Departure Provision.--If the defendant fraudulently 
obtained or used a United States passport for the purpose of entering 
the United States to engage in terrorist activity, an upward departure 
may be warranted. See Application Note 4 of the Commentary to Sec.  
3A1.4 (Terrorism).''.
    The Commentary to Sec.  2M3.1 captioned ``Application Notes'' is 
amended--
    in Note 2 by striking ``When revelation is likely to cause little 
or no harm, a downward departure may be warranted. See Chapter Five, 
Part K (Departures).'';
    and by striking Note 3 as follows:
    ``3. The court may depart from the guidelines upon representation 
by the President or his duly authorized designee that the imposition of 
a sanction other than authorized by the guideline is necessary to 
protect national security or further the objectives of the nation's 
foreign policy.''.
    The Commentary to Sec.  2M4.1 is amended by striking the Commentary 
captioned ``Application Note'' in its entirety as follows:
    ``Application Note:
    1. Subsection (b)(1) does not distinguish between whether the 
offense was committed in peacetime or during time of war or armed 
conflict. If the offense was committed when persons were being inducted 
for compulsory military service during time of war or armed conflict, 
an upward departure may be warranted.''.
    The Commentary to Sec.  2M5.1 captioned ``Application Notes'' is 
amended by striking Note 3 as follows:
    ``3. Departure Provisions.--
    (A) In General.--In determining the sentence within the applicable 
guideline range, the court may consider the degree to which the 
violation threatened a security interest of the United States, the 
volume of commerce involved, the extent of planning or sophistication, 
and whether there were multiple occurrences. Where such factors are 
present in an extreme form,

[[Page 19836]]

a departure from the guidelines may be warranted. See Chapter Five, 
Part K (Departures).
    (B) War or Armed Conflict.--In the case of a violation during time 
of war or armed conflict, an upward departure may be warranted.''.
    The Commentary to Sec.  2M5.2 captioned ``Application Notes'' is 
amended--
    in the caption by striking ``Notes'' and inserting ``Note'';
    in Note 1 by striking the following:
    ``The base offense level assumes that the offense conduct was 
harmful or had the potential to be harmful to a security or foreign 
policy interest of the United States. In the unusual case where the 
offense conduct posed no such risk, a downward departure may be 
warranted. In the case of a violation during time of war or armed 
conflict, an upward departure may be warranted. See Chapter Five, Part 
K (Departures).'';
    and by striking Note 2 as follows:
    ``2. In determining the sentence within the applicable guideline 
range, the court may consider the degree to which the violation 
threatened a security or foreign policy interest of the United States, 
the volume of commerce involved, the extent of planning or 
sophistication, and whether there were multiple occurrences. Where such 
factors are present in an extreme form, a departure from the guidelines 
may be warranted.''.
    The Commentary to Sec.  2M5.3 captioned ``Application Notes'' is 
amended--
    in the caption by striking ``Notes'' and inserting ``Note'';
    and by striking Note 2 as follows:
    ``2. Departure Provisions.--
    (A) In General.--In determining the sentence within the applicable 
guideline range, the court may consider the degree to which the 
violation threatened a security interest of the United States, the 
volume of the funds or other material support or resources involved, 
the extent of planning or sophistication, and whether there were 
multiple occurrences. In a case in which such factors are present in an 
extreme form, a departure from the guidelines may be warranted. See 
Chapter Five, Part K (Departures).
    (B) War or Armed Conflict.--In the case of a violation during time 
of war or armed conflict, an upward departure may be warranted.''.
    The Commentary to Sec.  2N1.1 captioned ``Application Notes'' is 
amended--
    in the caption by striking ``Notes'' and inserting ``Note'';
    by striking Note 1 as follows:
    ``1. The base offense level reflects that this offense typically 
poses a risk of death or serious bodily injury to one or more victims; 
or causes, or is intended to cause, bodily injury. Where the offense 
posed a substantial risk of death or serious bodily injury to numerous 
victims, or caused extreme psychological injury or substantial property 
damage or monetary loss, an upward departure may be warranted. In the 
unusual case in which the offense did not cause a risk of death or 
serious bodily injury, and neither caused nor was intended to cause 
bodily injury, a downward departure may be warranted.'';
    and by redesignating Note 2 as Note 1.
    The Commentary to Sec.  2N1.2 is amended by striking the Commentary 
captioned ``Application Note'' in its entirety as follows:
    ``Application Note:
    1. If death or bodily injury, extreme psychological injury, or 
substantial property damage or monetary loss resulted, an upward 
departure may be warranted. See Chapter Five, Part K (Departures).''.
    The Commentary to Sec.  2N1.3 is amended by striking the Commentary 
captioned ``Application Note'' in its entirety as follows:
    ``Application Note:
    1. If death or bodily injury, extreme psychological injury, or 
substantial property damage or monetary loss resulted, an upward 
departure may be warranted. See Chapter Five, Part K (Departures).''.
    The Commentary to Sec.  2N2.1 captioned ``Application Notes'' is 
amended--
    by striking Note 1 as follows:
    ``1. This guideline assumes a regulatory offense that involved 
knowing or reckless conduct. Where only negligence was involved, a 
downward departure may be warranted. See Chapter Five, Part K 
(Departures).'';
    by redesignating Note 2 as Note 1;
    by striking Note 3 as follows:
    ``3. Upward Departure Provisions.--The following are circumstances 
in which an upward departure may be warranted:
    (A) The offense created a substantial risk of bodily injury or 
death; or bodily injury, death, extreme psychological injury, property 
damage, or monetary loss resulted from the offense. See Chapter Five, 
Part K (Departures).
    (B) The defendant was convicted under 7 U.S.C. 7734.'';
    and by redesignating Note 4 as Note 2.
    The Commentary to Sec.  2P1.1 captioned ``Application Notes'' is 
amended--
    by striking Note 4 as follows:
    ``4. If death or bodily injury resulted, an upward departure may be 
warranted. See Chapter Five, Part K (Departures).'';
    and by redesignating Notes 5 and 6 as Notes 4 and 5, respectively.
    The Commentary to Sec.  2P1.3 is amended by striking the Commentary 
captioned ``Application Note'' in its entirety as follows:
    ``Application Note:
    1. If death or bodily injury resulted, an upward departure may be 
warranted. See Chapter Five, Part K (Departures).''.
    The Commentary to Sec.  2Q1.1 is amended by striking the Commentary 
captioned ``Application Note'' in its entirety as follows:
    ``Application Note:
    1. If death or serious bodily injury resulted, an upward departure 
may be warranted. See Chapter Five, Part K (Departures).''.
    The Commentary to Sec.  2Q1.2 captioned ``Application Notes'' is 
amended--
    by striking Note 4 as follows:
    ``4. Except when the adjustment in subsection (b)(6) for simple 
recordkeeping offenses applies, this section assumes knowing conduct. 
In cases involving negligent conduct, a downward departure may be 
warranted.'';
    by redesignating Notes 5 through 8 as Notes 4 through 7, 
respectively;
    in Note 4 (as so redesignated) by striking ``Depending upon the 
harm resulting from the emission, release or discharge, the quantity 
and nature of the substance or pollutant, the duration of the offense 
and the risk associated with the violation, a departure of up to two 
levels in either direction from the offense levels prescribed in these 
specific offense characteristics may be appropriate.'';
    in Note 5 (as so redesignated) by striking ``Depending upon the 
nature of the risk created and the number of people placed at risk, a 
departure of up to three levels upward or downward may be warranted. If 
death or serious bodily injury results, a departure would be called 
for. See Chapter Five, Part K (Departures).'';
    in Note 6 (as so redesignated) by striking ``Depending upon the 
nature of the contamination involved, a departure of up to two levels 
either upward or downward could be warranted.'';
    in Note 7 (as so redesignated) by striking ``Depending upon the 
nature and quantity of the substance involved and the risk associated 
with the offense, a departure of up to two levels either upward or 
downward may be warranted.'';
    and by striking Note 9 as follows:
    ``9. Other Upward Departure Provisions.--
    (A) Civil Adjudications and Failure to Comply with Administrative 
Order.--In a case in which the defendant has

[[Page 19837]]

previously engaged in similar misconduct established by a civil 
adjudication or has failed to comply with an administrative order, an 
upward departure may be warranted. See Sec.  4A1.3 (Departures Based on 
Inadequacy of Criminal History Category).
    (B) Extreme Psychological Injury.--If the offense caused extreme 
psychological injury, an upward departure may be warranted. See Sec.  
5K2.3 (Extreme Psychological Injury).
    (C) Terrorism.--If the offense was calculated to influence or 
affect the conduct of government by intimidation or coercion, or to 
retaliate against government conduct, an upward departure would be 
warranted. See Application Note 4 of the Commentary to Sec.  3A1.4 
(Terrorism).''.
    The Commentary to Sec.  2Q1.3 captioned ``Application Notes'' is 
amended--
    by striking Note 3 as follows:
    ``3. The specific offense characteristics in this section assume 
knowing conduct. In cases involving negligent conduct, a downward 
departure may be warranted.'';
    by redesignating Notes 4 through 7 as Notes 3 through 6, 
respectively;
    in Note 3 (as so redesignated) by striking ``Depending upon the 
harm resulting from the emission, release or discharge, the quantity 
and nature of the substance or pollutant, the duration of the offense 
and the risk associated with the violation, a departure of up to two 
levels in either direction from that prescribed in these specific 
offense characteristics may be appropriate.'';
    in Note 4 (as so redesignated) by striking ``Depending upon the 
nature of the risk created and the number of people placed at risk, a 
departure of up to three levels upward or downward may be warranted. If 
death or serious bodily injury results, a departure would be called 
for. See Chapter Five, Part K (Departures).'';
    in Note 5 (as so redesignated) by striking ``Depending upon the 
nature of the contamination involved, a departure of up to two levels 
in either direction could be warranted.'';
    in Note 6 (as so redesignated) by striking ``Depending upon the 
nature and quantity of the substance involved and the risk associated 
with the offense, a departure of up to two levels in either direction 
may be warranted.'';
    and by striking Note 8 as follows:
    ``8. Where a defendant has previously engaged in similar misconduct 
established by a civil adjudication or has failed to comply with an 
administrative order, an upward departure may be warranted. See Sec.  
4A1.3 (Departures Based on Inadequacy of Criminal History Category 
(Policy Statement)).''.
    The Commentary to Sec.  2Q1.4 captioned ``Application Notes'' is 
amended by striking Note 3 as follows:
    ``3. Departure Provisions.--
    (A) Downward Departure Provision.--The base offense level in 
subsection (a)(1) reflects that offenses covered by that subsection 
typically pose a risk of death or serious bodily injury to one or more 
victims, or cause, or are intended to cause, bodily injury. In the 
unusual case in which such an offense did not cause a risk of death or 
serious bodily injury, and neither caused nor was intended to cause 
bodily injury, a downward departure may be warranted.
    (B) Upward Departure Provisions.--If the offense caused extreme 
psychological injury, or caused substantial property damage or monetary 
loss, an upward departure may be warranted.
    If the offense was calculated to influence or affect the conduct of 
government by intimidation or coercion, or to retaliate against 
government conduct, an upward departure would be warranted. See 
Application Note 4 of Sec.  3A1.4 (Terrorism).''.
    The Commentary to Sec.  2Q2.1 captioned ``Application Notes'' is 
amended--
    by striking Note 5 as follows:
    ``5. If the offense involved the destruction of a substantial 
quantity of fish, wildlife, or plants, and the seriousness of the 
offense is not adequately measured by the market value, an upward 
departure may be warranted.'';
    and by redesignating Note 6 as Note 5.
    The Commentary to Sec.  2R1.1 captioned ``Application Notes'' is 
amended in Note 7 by striking ``a sentence at the maximum of the 
applicable guideline range, or an upward departure, may be warranted. 
See Sec.  4A1.3 (Departures Based on Inadequacy of Criminal History 
Category (Policy Statement))'' and inserting ``a sentence at the 
maximum of the applicable guideline range may be warranted''.
    The Commentary to Sec.  2T1.8 is amended by striking the Commentary 
captioned ``Application Note'' in its entirety as follows:
    ``Application Note:
    1. If the defendant was attempting to evade, rather than merely 
delay, payment of taxes, an upward departure may be warranted.''.
    The Commentary to Sec.  2T2.1 captioned ``Application Notes'' is 
amended--
    in the caption by striking ``Notes'' and inserting ``Note'';
    and by striking Note 2 as follows:
    ``2. Offense conduct directed at more than tax evasion (e.g., theft 
or fraud) may warrant an upward departure.''.
    Chapter Two, Part T, Subpart 3 is amended in the Introductory 
Commentary by striking ``, or for departing upward if there is not 
another more specific applicable guideline''.
    The Commentary to Sec.  2T3.1 captioned ``Application Notes'' is 
amended--
    by striking Note 2 as follows:
    ``2. Particular attention should be given to those items for which 
entry is prohibited, limited, or restricted. Especially when such items 
are harmful or protective quotas are in effect, the duties evaded on 
such items may not adequately reflect the harm to society or protected 
industries resulting from their importation. In such instances, an 
upward departure may be warranted. A sentence based upon an alternative 
measure of the `duty' evaded, such as the increase in market value due 
to importation, or 25 percent of the items' fair market value in the 
United States if the increase in market value due to importation is not 
readily ascertainable, might be considered.'';
    and by redesignating Note 3 as Note 2.
    The Commentary to Sec.  2X5.1 captioned ``Application Notes'' is 
amended--
    in Note 1 by inserting after ``include:'' the following: ``Sec.  
3F1.1 (Early Disposition Programs (Policy Statement));''; by striking 
``Chapter Five, Part H (Specific Offender Characteristics); Chapter 
Five, Part J (Relief from Disability); Chapter Five, Part K 
(Departures); Chapter Six, Part A (Sentencing Procedures); Chapter Six, 
Part B (Plea Agreements)'' and inserting ``Chapter Five, Part J (Relief 
from Disability); Chapter Five, Part K (Assistance to Authorities); 
Chapter Six, Part A (Sentencing Procedures); and Chapter Six, Part B 
(Plea Agreements)'';
    and in Note 2 by striking the following:
    ``Convictions under 18 U.S.C. 1841(a)(1).--
    (A) In General.--If the defendant is convicted under 18 U.S.C. 
1841(a)(1), the Chapter Two offense guideline that applies is the 
guideline that covers the conduct the defendant is convicted of having 
engaged in, i.e., the conduct of which the defendant is convicted that 
violates a specific provision listed in 18 U.S.C. 1841(b) and that 
results in the death of, or bodily injury to, a child in utero at the 
time of the offense of conviction. For example, if the defendant 
committed aggravated sexual abuse against the unborn child's mother and 
it caused the death of the child in utero, the applicable Chapter Two 
guideline would be Sec.  2A3.1 (Criminal

[[Page 19838]]

Sexual Abuse; Attempt to Commit Criminal Sexual Abuse).
    (B) Upward Departure Provision.--For offenses under 18 U.S.C. 
1841(a)(1), an upward departure may be warranted if the offense level 
under the applicable guideline does not adequately account for the 
death of, or serious bodily injury to, the child in utero.'';
    and inserting the following:
    ``Convictions under 18 U.S.C. 1841(a)(1).--If the defendant is 
convicted under 18 U.S.C. 1841(a)(1), the Chapter Two offense guideline 
that applies is the guideline that covers the conduct the defendant is 
convicted of having engaged in, i.e., the conduct of which the 
defendant is convicted that violates a specific provision listed in 18 
U.S.C. 1841(b) and that results in the death of, or bodily injury to, a 
child in utero at the time of the offense of conviction. For example, 
if the defendant committed aggravated sexual abuse against the unborn 
child's mother and it caused the death of the child in utero, the 
applicable Chapter Two guideline would be Sec.  2A3.1 (Criminal Sexual 
Abuse; Attempt to Commit Criminal Sexual Abuse).''.
    The Commentary to Sec.  2X7.2 captioned ``Application Note'' is 
amended in Note 1 by striking the following:
    ``Upward Departure Provisions.--An upward departure may be 
warranted in any of the following cases:
    (A) The defendant engaged in a pattern of activity involving use of 
a submersible vessel or semi-submersible vessel described in 18 U.S.C. 
2285 to facilitate other felonies.
    (B) The offense involved use of the vessel as part of an ongoing 
criminal organization or enterprise.'';
    and inserting the following:
    ``As identified by Congress in section 103 of Public Law 110-407, 
the following factors may also warrant consideration in imposing a 
sentence under this guideline:
    (A) The defendant engaged in a pattern of activity involving use of 
a submersible vessel or semi-submersible vessel described in 18 U.S.C. 
2285 to facilitate other felonies.
    (B) The offense involved use of the vessel as part of an ongoing 
criminal organization or enterprise.''.
    The Commentary to Sec.  3A1.1 captioned ``Application Notes'' is 
amended--
    by striking Note 4 as follows:
    ``4. If an enhancement from subsection (b) applies and the 
defendant's criminal history includes a prior sentence for an offense 
that involved the selection of a vulnerable victim, an upward departure 
may be warranted.'';
    and by redesignating Note 5 as Note 4.
    The Commentary to Sec.  3A1.2 captioned ``Application Notes'' is 
amended by striking Note 5 as follows:
    ``5. Upward Departure Provision.--If the official victim is an 
exceptionally high-level official, such as the President or the Vice 
President of the United States, an upward departure may be warranted 
due to the potential disruption of the governmental function.''.
    The Commentary to Sec.  3A1.3 captioned ``Application Notes'' is 
amended by striking Note 3 as follows:
    ``3. If the restraint was sufficiently egregious, an upward 
departure may be warranted. See Sec.  5K2.4 (Abduction or Unlawful 
Restraint).''.
    The Commentary to Sec.  3A1.4 captioned ``Application Notes'' is 
amended by striking Note 4 as follows:
    ``4. Upward Departure Provision.--By the terms of the directive to 
the Commission in section 730 of the Antiterrorism and Effective Death 
Penalty Act of 1996, the adjustment provided by this guideline applies 
only to federal crimes of terrorism. However, there may be cases in 
which (A) the offense was calculated to influence or affect the conduct 
of government by intimidation or coercion, or to retaliate against 
government conduct but the offense involved, or was intended to 
promote, an offense other than one of the offenses specifically 
enumerated in 18 U.S.C. 2332b(g)(5)(B); or (B) the offense involved, or 
was intended to promote, one of the offenses specifically enumerated in 
18 U.S.C. 2332b(g)(5)(B), but the terrorist motive was to intimidate or 
coerce a civilian population, rather than to influence or affect the 
conduct of government by intimidation or coercion, or to retaliate 
against government conduct. In such cases an upward departure would be 
warranted, except that the sentence resulting from such a departure may 
not exceed the top of the guideline range that would have resulted if 
the adjustment under this guideline had been applied.''.
    The Commentary to Sec.  3B1.1 captioned ``Application Notes'' is 
amended in Note 2 by striking ``An upward departure may be warranted, 
however, in the case of a defendant who did not organize, lead, manage, 
or supervise another participant, but who nevertheless exercised 
management responsibility over the property, assets, or activities of a 
criminal organization.''.
    The Commentary to Sec.  3B1.4 captioned ``Application Notes'' is 
amended by striking Note 3 as follows:
    ``3. If the defendant used or attempted to use more than one person 
less than eighteen years of age, an upward departure may be 
warranted.''.
    The Commentary to Sec.  3C1.2 captioned ``Application Notes'' is 
amended--
    in Note 2 by striking ``However, where a higher degree of 
culpability was involved, an upward departure above the 2-level 
increase provided in this section may be warranted.'';
    and by striking Note 6 as follows:
    ``6. If death or bodily injury results or the conduct posed a 
substantial risk of death or bodily injury to more than one person, an 
upward departure may be warranted. See Chapter Five, Part K 
(Departures).''.
    The Commentary to Sec.  3D1.1 captioned ``Background'' is amended 
by striking ``Chapter Three, Part E (Acceptance of Responsibility)'' 
and inserting ``Chapter Three, Parts E (Acceptance of Responsibility) 
and F (Early Disposition Programs),''; and by striking ``Chapter Five 
(Determining the Sentence)'' both places such phrase appears and 
inserting ``Chapter Five (Determining the Sentencing Range and Options 
Under the Guidelines)''.
    The Commentary to Sec.  3D1.2 captioned ``Background'' is amended 
by striking ``it was rejected because it probably would require 
departure in many cases in order to capture adequately the criminal 
behavior'' and inserting ``it was rejected because, in many cases, it 
would not adequately capture the scope and impact of the criminal 
behavior''.
    The Commentary to Sec.  3D1.3 captioned ``Application Notes'' is 
amended by striking Note 4 as follows:
    ``4. Sometimes the rule specified in this section may not result in 
incremental punishment for additional criminal acts because of the 
grouping rules. For example, if the defendant commits forcible criminal 
sexual abuse (rape), aggravated assault, and robbery, all against the 
same victim on a single occasion, all of the counts are grouped 
together under Sec.  3D1.2. The aggravated assault will increase the 
guideline range for the rape. The robbery, however, will not. This is 
because the offense guideline for rape (Sec.  2A3.1) includes the most 
common aggravating factors, including injury, that data showed to be 
significant in actual practice. The additional factor of property loss 
ordinarily can be taken into account adequately within the guideline 
range for rape, which is fairly wide. However, an exceptionally large 
property loss in the course of the rape would provide grounds for an 
upward departure. See Sec.  5K2.5 (Property Damage or Loss).''.

[[Page 19839]]

    The Commentary to Sec.  3D1.4 captioned ``Background'' is amended 
by striking the following:
    ``When Groups are of roughly comparable seriousness, each Group 
will represent one Unit. When the most serious Group carries an offense 
level substantially higher than that applicable to the other Groups, 
however, counting the lesser Groups fully for purposes of the table 
could add excessive punishment, possibly even more than those offenses 
would carry if prosecuted separately. To avoid this anomalous result 
and produce declining marginal punishment, Groups 9 or more levels less 
serious than the most serious Group should not be counted for purposes 
of the table, and that Groups 5 to 8 levels less serious should be 
treated as equal to one-half of a Group. Thus, if the most serious 
Group is at offense level 15 and if two other Groups are at level 10, 
there would be a total of two Units for purposes of the table (one plus 
one-half plus one-half) and the combined offense level would be 17. 
Inasmuch as the maximum increase provided in the guideline is 5 levels, 
departure would be warranted in the unusual case where the additional 
offenses resulted in a total of significantly more than 5 Units.
    In unusual circumstances, the approach adopted in this section 
could produce adjustments for the additional counts that are inadequate 
or excessive. If there are several groups and the most serious offense 
is considerably more serious than all of the others, there will be no 
increase in the offense level resulting from the additional counts. 
Ordinarily, the court will have latitude to impose added punishment by 
sentencing toward the upper end of the range authorized for the most 
serious offense. Situations in which there will be inadequate scope for 
ensuring appropriate additional punishment for the additional crimes 
are likely to be unusual and can be handled by departure from the 
guidelines. Conversely, it is possible that if there are several minor 
offenses that are not grouped together, application of the rules in 
this part could result in an excessive increase in the sentence range. 
Again, such situations should be infrequent and can be handled through 
departure. An alternative method for ensuring more precise adjustments 
would have been to determine the appropriate offense level adjustment 
through a more complicated mathematical formula; that approach was not 
adopted because of its complexity.'';
    and inserting the following:
    ``When Groups are of roughly comparable seriousness, each Group 
will represent one Unit. When the most serious Group carries an offense 
level substantially higher than that applicable to the other Groups, 
however, counting the lesser Groups fully for purposes of the table 
could add excessive punishment, possibly even more than those offenses 
would carry if prosecuted separately. To avoid this anomalous result 
and produce declining marginal punishment, Groups 9 or more levels less 
serious than the most serious Group should not be counted for purposes 
of the table, and that Groups 5 to 8 levels less serious should be 
treated as equal to one-half of a Group. Thus, if the most serious 
Group is at offense level 15 and if two other Groups are at level 10, 
there would be a total of two Units for purposes of the table (one plus 
one-half plus one-half) and the combined offense level would be 17.''.
    The Commentary to Sec.  3D1.5 is amended by striking ``Chapter Five 
(Determining the Sentence)'' and inserting ``Chapter Five (Determining 
the Sentencing Range and Options Under the Guidelines)''; and by 
striking ``Chapter Three, Part E (Acceptance of Responsibility)'' and 
inserting ``Chapter Three, Parts E (Acceptance of Responsibility) and F 
(Early Disposition Programs),''.
    Chapter Three is amended by inserting at the end the following new 
Part F:

``Part F--Early Disposition Programs

Sec.  3F1.1. Early Disposition Programs (Policy Statement)

    Upon motion of the Government, the court may decrease the 
defendant's offense level pursuant to an early disposition program 
authorized by the Attorney General of the United States and the United 
States Attorney for the district in which the court resides. The level 
of the decrease shall be consistent with the authorized program within 
the filing district and the government motion filed, but shall be not 
more than 4 levels.
Commentary
    Background: This policy statement implements the directive to the 
Commission in section 401(m)(2)(B) of the Prosecutorial Remedies and 
Other Tools to end the Exploitation of Children Today Act of 2003 (the 
`PROTECT Act', Public Law 108-21).''.
    Chapter Four, Part A is amended in the Introductory Commentary by 
striking ``and Sec.  4A1.3''.
    The Commentary to Sec.  4A1.1 captioned ``Background'' is amended 
by striking ``In recognition of the imperfection of this measure 
however, Sec.  4A1.3 authorizes the court to depart from the otherwise 
applicable criminal history category in certain circumstances.''.
    Section 4A1.2(h) is amended by striking ``, but may be considered 
under Sec.  4A1.3 (Departures Based on Inadequacy of Criminal History 
Category (Policy Statement))''.
    Section 4A1.2(i) is amended by striking ``, but may be considered 
under Sec.  4A1.3 (Departures Based on Inadequacy of Criminal History 
Category (Policy Statement))''.
    Section 4A1.2(j) is amended by striking ``, but may be considered 
under Sec.  4A1.3 (Departures Based on Inadequacy of Criminal History 
Category (Policy Statement))''.
    The Commentary to Sec.  4A1.2 captioned ``Applications Notes'' is 
amended--
    in Note 3 by striking the following:
    ``Application of `Single Sentence' Rule (Subsection (a)(2)).--
    (A) Predicate Offenses.--In some cases, multiple prior sentences 
are treated as a single sentence for purposes of calculating the 
criminal history score under Sec.  4A1.1(a), (b), and (c). However, for 
purposes of determining predicate offenses, a prior sentence included 
in the single sentence should be treated as if it received criminal 
history points, if it independently would have received criminal 
history points. Therefore, an individual prior sentence may serve as a 
predicate under the career offender guideline (see Sec.  4B1.2(c)) or 
other guidelines with predicate offenses, if it independently would 
have received criminal history points. However, because predicate 
offenses may be used only if they are counted `separately' from each 
other (see Sec.  4B1.2(c)), no more than one prior sentence in a given 
single sentence may be used as a predicate offense.
    For example, a defendant's criminal history includes one robbery 
conviction and one theft conviction. The sentences for these offenses 
were imposed on the same day, eight years ago, and are treated as a 
single sentence under Sec.  4A1.2(a)(2). If the defendant received a 
one-year sentence of imprisonment for the robbery and a two-year 
sentence of imprisonment for the theft, to be served concurrently, a 
total of 3 points is added under Sec.  4A1.1(a). Because this 
particular robbery met the definition of a felony crime of violence and 
independently would have received 2 criminal history points under Sec.  
4A1.1(b), it may serve as a predicate under the career offender 
guideline.
    Note, however, that if the sentences in the example above were 
imposed thirteen years ago, the robbery independently would have 
received no criminal history points under Sec.  4A1.1(b), because it 
was not imposed

[[Page 19840]]

within ten years of the defendant's commencement of the instant 
offense. See Sec.  4A1.2(e)(2). Accordingly, it may not serve as a 
predicate under the career offender guideline.
    (B) Upward Departure Provision.--Treating multiple prior sentences 
as a single sentence may result in a criminal history score that 
underrepresents the seriousness of the defendant's criminal history and 
the danger that the defendant presents to the public. In such a case, 
an upward departure may be warranted. For example, if a defendant was 
convicted of a number of serious non-violent offenses committed on 
different occasions, and the resulting sentences were treated as a 
single sentence because either the sentences resulted from offenses 
contained in the same charging instrument or the defendant was 
sentenced for these offenses on the same day, the assignment of a 
single set of points may not adequately reflect the seriousness of the 
defendant's criminal history or the frequency with which the defendant 
has committed crimes.'';
    and inserting the following:
    ``Application of `Single Sentence' Rule (Subsection (a)(2)).--In 
some cases, multiple prior sentences are treated as a single sentence 
for purposes of calculating the criminal history score under Sec.  
4A1.1(a), (b), and (c). However, for purposes of determining predicate 
offenses, a prior sentence included in the single sentence should be 
treated as if it received criminal history points, if it independently 
would have received criminal history points. Therefore, an individual 
prior sentence may serve as a predicate under the career offender 
guideline (see Sec.  4B1.2(c)) or other guidelines with predicate 
offenses, if it independently would have received criminal history 
points. However, because predicate offenses may be used only if they 
are counted `separately' from each other (see Sec.  4B1.2(c)), no more 
than one prior sentence in a given single sentence may be used as a 
predicate offense.
    For example, a defendant's criminal history includes one robbery 
conviction and one theft conviction. The sentences for these offenses 
were imposed on the same day, eight years ago, and are treated as a 
single sentence under Sec.  4A1.2(a)(2). If the defendant received a 
one-year sentence of imprisonment for the robbery and a two-year 
sentence of imprisonment for the theft, to be served concurrently, a 
total of 3 points is added under Sec.  4A1.1(a). Because this 
particular robbery met the definition of a felony crime of violence and 
independently would have received 2 criminal history points under Sec.  
4A1.1(b), it may serve as a predicate under the career offender 
guideline.
    Note, however, that if the sentences in the example above were 
imposed thirteen years ago, the robbery independently would have 
received no criminal history points under Sec.  4A1.1(b), because it 
was not imposed within ten years of the defendant's commencement of the 
instant offense. See Sec.  4A1.2(e)(2). Accordingly, it may not serve 
as a predicate under the career offender guideline.'';
    in Note 6 by striking the following paragraph:
    ``Nonetheless, the criminal conduct underlying any conviction that 
is not counted in the criminal history score may be considered pursuant 
to Sec.  4A1.3 (Departures Based on Inadequacy of Criminal History 
Category (Policy Statement)).'';
    and in Note 8 by striking ``If the court finds that a sentence 
imposed outside this time period is evidence of similar, or serious 
dissimilar, criminal conduct, the court may consider this information 
in determining whether an upward departure is warranted under Sec.  
4A1.3 (Departures Based on Inadequacy of Criminal History Category 
(Policy Statement)).''.
    Chapter Four, Part A is amended by striking Sec.  4A1.3 and its 
accompanying commentary in its entirety as follows:

``Sec.  4A1.3. Departures Based on Inadequacy of Criminal History 
Category (Policy Statement)

    (a) Upward Departures.--
    (1) Standard for Upward Departure.--If reliable information 
indicates that the defendant's criminal history category substantially 
under-represents the seriousness of the defendant's criminal history or 
the likelihood that the defendant will commit other crimes, an upward 
departure may be warranted.
    (2) Types of Information Forming the Basis for Upward Departure.--
The information described in subsection (a)(1) may include information 
concerning the following:
    (A) Prior sentence(s) not used in computing the criminal history 
category (e.g., sentences for foreign and tribal convictions).
    (B) Prior sentence(s) of substantially more than one year imposed 
as a result of independent crimes committed on different occasions.
    (C) Prior similar misconduct established by a civil adjudication or 
by a failure to comply with an administrative order.
    (D) Whether the defendant was pending trial or sentencing on 
another charge at the time of the instant offense.
    (E) Prior similar adult criminal conduct not resulting in a 
criminal conviction.
    (3) Prohibition.--A prior arrest record itself shall not be 
considered for purposes of an upward departure under this policy 
statement.
    (4) Determination of Extent of Upward Departure.--
    (A) In General.--Except as provided in subdivision (B), the court 
shall determine the extent of a departure under this subsection by 
using, as a reference, the criminal history category applicable to 
defendants whose criminal history or likelihood to recidivate most 
closely resembles that of the defendant's.
    (B) Upward Departures from Category VI.--In a case in which the 
court determines that the extent and nature of the defendant's criminal 
history, taken together, are sufficient to warrant an upward departure 
from Criminal History Category VI, the court should structure the 
departure by moving incrementally down the sentencing table to the next 
higher offense level in Criminal History Category VI until it finds a 
guideline range appropriate to the case.
    (b) Downward Departures.--
    (1) Standard for Downward Departure.--If reliable information 
indicates that the defendant's criminal history category substantially 
over-represents the seriousness of the defendant's criminal history or 
the likelihood that the defendant will commit other crimes, a downward 
departure may be warranted.
    (2) Prohibitions.--
    (A) Criminal History Category I.--Unless otherwise specified, a 
departure below the lower limit of the applicable guideline range for 
Criminal History Category I is prohibited.
    (B) Armed Career Criminal and Repeat and Dangerous Sex Offender.--A 
downward departure under this subsection is prohibited for (i) an armed 
career criminal within the meaning of Sec.  4B1.4 (Armed Career 
Criminal); and (ii) a repeat and dangerous sex offender against minors 
within the meaning of Sec.  4B1.5 (Repeat and Dangerous Sex Offender 
Against Minors).
    (3) Limitations.--
    (A) Limitation on Extent of Downward Departure for Career 
Offender.--The extent of a downward departure under this subsection for 
a career offender within the meaning of Sec.  4B1.1 (Career Offender) 
may not exceed one criminal history category.
    (B) Limitation on Applicability of Sec.  5C1.2 in Event of Downward 
Departure.--A defendant who receives a downward departure under this

[[Page 19841]]

subsection does not meet the criminal history requirement of subsection 
(a)(1) of Sec.  5C1.2 (Limitation on Applicability of Statutory Maximum 
Sentences in Certain Cases) if the defendant did not otherwise meet 
such requirement before receipt of the downward departure.
    (c) Written Specification of Basis for Departure.--In departing 
from the otherwise applicable criminal history category under this 
policy statement, the court shall specify in writing the following:
    (1) In the case of an upward departure, the specific reasons why 
the applicable criminal history category substantially under-represents 
the seriousness of the defendant's criminal history or the likelihood 
that the defendant will commit other crimes.
    (2) In the case of a downward departure, the specific reasons why 
the applicable criminal history category substantially over-represents 
the seriousness of the defendant's criminal history or the likelihood 
that the defendant will commit other crimes.
Commentary
    Application Notes:
    1. Definitions.--For purposes of this policy statement, the terms 
`depart', `departure', `downward departure', and `upward departure' 
have the meaning given those terms in Application Note 1 of the 
Commentary to Sec.  1B1.1 (Application Instructions).
    2. Upward Departures.--
    (A) Examples.--An upward departure from the defendant's criminal 
history category may be warranted based on any of the following 
circumstances:
    (i) A previous foreign sentence for a serious offense.
    (ii) Receipt of a prior consolidated sentence of ten years for a 
series of serious assaults.
    (iii) A similar instance of large scale fraudulent misconduct 
established by an adjudication in a Securities and Exchange Commission 
enforcement proceeding.
    (iv) Commission of the instant offense while on bail or pretrial 
release for another serious offense.
    (B) Upward Departures from Criminal History Category VI.--In the 
case of an egregious, serious criminal record in which even the 
guideline range for Criminal History Category VI is not adequate to 
reflect the seriousness of the defendant's criminal history, a 
departure above the guideline range for a defendant with Criminal 
History Category VI may be warranted. In determining whether an upward 
departure from Criminal History Category VI is warranted, the court 
should consider that the nature of the prior offenses rather than 
simply their number is often more indicative of the seriousness of the 
defendant's criminal record. For example, a defendant with five prior 
sentences for very large-scale fraud offenses may have 15 criminal 
history points, within the range of points typical for Criminal History 
Category VI, yet have a substantially more serious criminal history 
overall because of the nature of the prior offenses.
    (C) Upward Departures Based on Tribal Court Convictions.--In 
determining whether, or to what extent, an upward departure based on a 
tribal court conviction is appropriate, the court shall consider the 
factors set forth in Sec.  4A1.3(a) above and, in addition, may 
consider relevant factors such as the following:
    (i) The defendant was represented by a lawyer, had the right to a 
trial by jury, and received other due process protections consistent 
with those provided to criminal defendants under the United States 
Constitution.
    (ii) The defendant received the due process protections required 
for criminal defendants under the Indian Civil Rights Act of 1968, 
Public Law 90-284, as amended.
    (iii) The tribe was exercising expanded jurisdiction under the 
Tribal Law and Order Act of 2010, Public Law 111-211.
    (iv) The tribe was exercising expanded jurisdiction under the 
Violence Against Women Reauthorization Act of 2013, Public Law 113-4.
    (v) The tribal court conviction is not based on the same conduct 
that formed the basis for a conviction from another jurisdiction that 
receives criminal history points pursuant to this chapter.
    (vi) The tribal court conviction is for an offense that otherwise 
would be counted under Sec.  4A1.2 (Definitions and Instructions for 
Computing Criminal History).
    3. 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.
    Background: This policy statement recognizes that the criminal 
history score is unlikely to take into account all the variations in 
the seriousness of criminal history that may occur. For example, a 
defendant with an extensive record of serious, assaultive conduct who 
had received what might now be considered extremely lenient treatment 
in the past might have the same criminal history category as a 
defendant who had a record of less serious conduct. Yet, the first 
defendant's criminal history clearly may be more serious. This may be 
particularly true in the case of younger defendants (e.g., defendants 
in their early twenties or younger) who are more likely to have 
received repeated lenient treatment, yet who may actually pose a 
greater risk of serious recidivism than older defendants. This policy 
statement authorizes the consideration of a departure from the 
guidelines in the limited circumstances where reliable information 
indicates that the criminal history category does not adequately 
reflect the seriousness of the defendant's criminal history or 
likelihood of recidivism, and provides guidance for the consideration 
of such departures.''.
    The Commentary to Sec.  4B1.1 captioned ``Application Notes'' is 
amended by striking Note 4 as follows:
    ``4. Departure Provision for State Misdemeanors.--In a case in 
which one or both of the defendant's `two prior felony convictions' is 
based on an offense that was classified as a misdemeanor at the time of 
sentencing for the instant federal offense, application of the career 
offender guideline may result in a guideline range that substantially 
overrepresents the seriousness of the defendant's criminal history or 
substantially overstates the seriousness of the instant offense. In 
such a case, a downward departure may be warranted without regard to 
the limitation in Sec.  4A1.3(b)(3)(A).''.
    The Commentary to Sec.  4B1.2 captioned ``Application Notes'' is 
amended by striking Note 4 as follows:
    ``4. Upward Departure for Burglary Involving Violence.--There may 
be cases in which a burglary involves violence, but does not qualify as 
a `crime of violence' as defined in Sec.  4B1.2(a) and, as a result, 
the defendant does not receive a higher offense level or higher 
Criminal History Category that would have applied if the burglary 
qualified as a `crime of violence.' In

[[Page 19842]]

such a case, an upward departure may be appropriate.''.
    The Commentary to Sec.  4B1.4 captioned ``Application Notes'' is 
amended in Note 2 by striking the following paragraph:
    ``In a few cases, the rule provided in the preceding paragraph may 
result in a guideline range that, when combined with the mandatory 
consecutive sentence under 18 U.S.C. 844(h), Sec.  924(c), or Sec.  
929(a), produces a total maximum penalty that is less than the maximum 
of the guideline range that would have resulted had there not been a 
count of conviction under 18 U.S.C. 844(h), Sec.  924(c), or Sec.  
929(a) (i.e., the guideline range that would have resulted if 
subsections (b)(3)(A) and (c)(2) had been applied). In such a case, an 
upward departure may be warranted so that the conviction under 18 
U.S.C. 844(h), Sec.  924(c), or Sec.  929(a) does not result in a 
decrease in the total punishment. An upward departure under this 
paragraph shall not exceed the maximum of the guideline range that 
would have resulted had there not been a count of conviction under 18 
U.S.C. 844(h), Sec.  924(c), or Sec.  929(a).''.
    The Commentary to Sec.  4B1.4 captioned ``Background'' is amended 
by striking ``In some cases, the criminal history category may not 
adequately reflect the defendant's criminal history; see Sec.  4A1.3 
(Departures Based on Inadequacy of Criminal History Category (Policy 
Statement)).''.
    The Commentary to Sec.  4C1.1 captioned ``Application Notes'' is 
amended--
    in the heading by striking ``Notes'' and inserting ``Note'';
    and by striking Note 2 as follows:
    ``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.''.
    Chapter Five is amended--
    in the heading by striking ``Determining the Sentence'' and 
inserting ``Determining the Sentencing Range and Options Under the 
Guidelines'';
    and in the Introductory Commentary by striking the following:
    ''For certain categories of offenses and offenders, the guidelines 
permit the court to impose either imprisonment or some other sanction 
or combination of sanctions. In determining the type of sentence to 
impose, the sentencing judge should consider the nature and seriousness 
of the conduct, the statutory purposes of sentencing, and the pertinent 
offender characteristics. A sentence is within the guidelines if it 
complies with each applicable section of this chapter. The court should 
impose a sentence sufficient, but not greater than necessary, to comply 
with the statutory purposes of sentencing. 18 U.S.C. 3553(a).'';
    and inserting the following:
    ''Chapter Five sets forth the steps used to determine the 
applicable sentencing range based upon the guideline calculations made 
in Chapters Two through Four. Additionally, the provisions in this 
chapter set forth the sentencing requirements and options under the 
guidelines related to probation, imprisonment, supervision conditions, 
fines, and restitution for the particular guideline range. For example, 
for certain categories of offenses and offenders, the guidelines permit 
the court to impose either imprisonment or some other sanction or 
combination of sanctions. After applying the provisions of this chapter 
to determine the sentencing options recommended under the guidelines 
pursuant to subsection (a) of Sec.  1B1.1 (Application Instructions), 
the court shall consider the other applicable factors in 18 U.S.C. 
3553(a) to determine the length and type of sentence that is sufficient 
but not greater than necessary. A sentence is within the guidelines if 
it complies with each applicable section of this chapter.''.
    The Commentary to Sec.  5B1.1 captioned ``Applications Notes'' is 
amended by inserting at the end the following new Note 3:
    ``3. Factors to Be Considered.--
    (A) Statutory Factors.--The court, in determining whether to impose 
a term of probation, and, if a term of probation is to be imposed, in 
determining the length of the term and the conditions of probation, is 
required by statute to consider the factors set forth in 18 U.S.C. 
3553(a) to the extent that they are applicable. See 18 U.S.C. 3562(a).
    (B) Substance Abuse.--In a case in which a defendant sentenced to 
probation is an abuser of controlled substances or alcohol, it is 
recommended that the court consider imposing a condition requiring the 
defendant to participate in a program approved by the United States 
Probation Office for substance abuse may be appropriate. See Sec.  
5B1.3(d)(4).
    (C) Domestic Violence.--If the defendant is convicted for the first 
time of a domestic violence crime as defined in 18 U.S.C. 3561(b), a 
term of probation is required by statute if the defendant is not 
sentenced to a term of imprisonment. See 18 U.S.C. 3561(b). Such a 
defendant is also required by statute to attend an approved 
rehabilitation program, if available within a 50-mile radius of the 
legal residence of the defendant. See 18 U.S.C. 3563(a); Sec.  
5B1.3(a)(4).
    (D) Mental and Emotional Conditions.--In a case in which a 
defendant sentenced to probation is in need of psychological or 
psychiatric treatment, it is recommended that the court consider 
imposing a condition requiring that the defendant participate in a 
mental health program approved by the United States Probation Office. 
See Sec.  5B1.3(d)(5).
    (E) Education and Vocational Skills.--Education and vocational 
skills may be relevant in determining the conditions of probation for 
rehabilitative purposes, for public protection by restricting 
activities that allow for the utilization of a certain skill, or in 
determining the appropriate type of community service.
    (F) Employment Record.--A defendant's employment record may be 
relevant in determining the conditions of probation (e.g., the 
appropriate hours of home detention).''.
    The Commentary to Sec.  5C1.1 captioned ``Application Notes'' is 
amended--
    by striking Note 6 as follows:
    ``6. Departures Based on Specific Treatment Purpose.--There may be 
cases in which a departure from the sentencing options authorized for 
Zone C of the Sentencing Table (under which at least half the minimum 
term must be satisfied by imprisonment) to the sentencing options 
authorized for Zone B of the Sentencing Table (under which all or most 
of the minimum term may be satisfied by intermittent confinement, 
community confinement, or home detention instead of imprisonment) is 
appropriate to accomplish a specific treatment purpose. Such a 
departure should be considered only in cases where the court finds that 
(A) the defendant is an abuser of narcotics, other controlled 
substances, or alcohol, or suffers from a significant mental illness, 
and (B) the defendant's criminality is related to the treatment problem 
to be addressed.
    In determining whether such a departure is appropriate, the court 
should consider, among other things, (1) the likelihood that completion 
of the treatment program will successfully address the treatment 
problem, thereby reducing the risk to the public from further crimes of 
the defendant, and (2) whether imposition of less imprisonment than 
required by Zone C will increase the risk to the public from further 
crimes of the defendant.

[[Page 19843]]

    Examples: The following examples both assume the applicable 
guideline range is 12-18 months and the court departs in accordance 
with this application note. Under Zone C rules, the defendant must be 
sentenced to at least six months imprisonment. (1) The defendant is a 
nonviolent drug offender in Criminal History Category I and probation 
is not prohibited by statute. The court departs downward to impose a 
sentence of probation, with twelve months of intermittent confinement, 
community confinement, or home detention and participation in a 
substance abuse treatment program as conditions of probation. (2) The 
defendant is convicted of a Class A or B felony, so probation is 
prohibited by statute (see Sec.  5B1.1(b)). The court departs downward 
to impose a sentence of one month imprisonment, with eleven months in 
community confinement or home detention and participation in a 
substance abuse treatment program as conditions of supervised 
release.'';
    by redesignating Notes 7 through 10 as Notes 6 through 9, 
respectively;
    and in Note 9 (as so redesignated) by striking the following:
    ``Zero-Point Offenders.--
    (A) Zero-Point Offenders in Zones A and B of the Sentencing 
Table.--If the defendant received an adjustment under Sec.  4C1.1 
(Adjustment for Certain Zero-Point Offenders) and the defendant's 
applicable guideline range is in Zone A or B of the Sentencing Table, a 
sentence other than a sentence of imprisonment, in accordance with 
subsection (b) or (c)(3), is generally appropriate. See 28 U.S.C. 
994(j).
    (B) 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).'';
    and inserting the following:
    ``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).''.
    The Commentary to Sec.  5D1.1 captioned ``Application Notes,'' as 
amended by Amendment 4 of this document, is further amended--
    in Note 3, as redesignated by Amendment 4 of this document, by 
striking ``See Sec.  5H1.4 (Physical Condition, Including Drug or 
Alcohol Dependence or Abuse; Gambling Addiction)'' and inserting ``See 
Sec.  5D1.3(b)(3)(D)'';
    by further redesignating Notes 5, 6, and 7 (as redesignated by 
Amendment 4 of this document) as Notes 8, 9, and 10, respectively;
    and by inserting after Note 4, as redesignated by Amendment 4 of 
this document, the following new Notes 5, 6, and 7:
    ``5. Mental and Emotional Conditions.--In a case in which a 
defendant sentenced to imprisonment is in need of psychological or 
psychiatric treatment, it is recommended that the court consider 
imposing a condition requiring that the defendant participate in a 
mental health program approved by the United States Probation Office. 
See Sec.  5D1.3(b)(3)(E).
    6. Education and Vocational Skills.--Education and vocational 
skills may be relevant in determining the conditions of supervised 
release for rehabilitative purposes, for public protection by 
restricting activities that allow for the utilization of a certain 
skill, or in determining the appropriate type of community service.
    7. Employment Record.--A defendant's employment record may be 
relevant in determining the conditions of supervised release (e.g., the 
appropriate hours of home detention).''.
    Section 5D1.3(b)(3)(D), as redesignated and amended by Amendment 4 
of this document, is further amended by inserting after ``possess 
alcohol.'' the following: ``If participation in a substance abuse 
program is required, the length of the term of supervised release 
should take into account the length of time necessary for the probation 
office to judge the success of the program.''.
    The Commentary to Sec.  5E1.2 captioned ``Applications Notes'' is 
amended--
    by striking Note 4 as follows:
    ``4. The Commission envisions that for most defendants, the maximum 
of the guideline fine range from subsection (c) will be at least twice 
the amount of gain or loss resulting from the offense. Where, however, 
two times either the amount of gain to the defendant or the amount of 
loss caused by the offense exceeds the maximum of the fine guideline, 
an upward departure from the fine guideline may be warranted.
    Moreover, where a sentence within the applicable fine guideline 
range would not be sufficient to ensure both the disgorgement of any 
gain from the offense that otherwise would not be disgorged (e.g., by 
restitution or forfeiture) and an adequate punitive fine, an upward 
departure from the fine guideline range may be warranted.'';
    and by redesignating Notes 5, 6, and 7 as Notes 4, 5, and 6, 
respectively.
    The Commentary to Sec.  5G1.1 is amended by striking ``; a sentence 
of less than 48 months would be a guideline departure''; and by 
striking ``; a sentence of more than 60 months would be a guideline 
departure''.
    The Commentary to Sec.  5G1.3 captioned ``Application Notes,'' as 
amended by Amendment 4 of this document, is further amended--
    in Note 2(C) by striking ``(iii) the undischarged term of 
imprisonment for which the adjustment is being given'' and inserting 
``(iii) the undischarged term of imprisonment for which the adjustment 
is being given and the relevant case information (including docket 
number)'';
    in Note 4(E) by striking the following:
    ``Downward Departure.--Unlike subsection (b), subsection (d) does 
not authorize an adjustment of the sentence for the instant offense for 
a period of imprisonment already served on the undischarged term of 
imprisonment. However, in an extraordinary case involving an 
undischarged term of imprisonment under subsection (d), it may be 
appropriate for the court to downwardly depart. This may occur, for 
example, in a case in which the defendant has served a very substantial 
period of imprisonment on an undischarged term of imprisonment that 
resulted from conduct only partially within the relevant conduct for 
the instant offense. In such a case, a downward departure may be 
warranted to ensure that the combined punishment is not increased 
unduly by the fortuity and timing of separate prosecutions and 
sentencings. Nevertheless, it is intended that a departure pursuant to 
this application note result in a sentence that ensures a reasonable 
incremental punishment for the instant offense of conviction.
    To avoid confusion with the Bureau of Prisons' exclusive authority 
provided under 18 U.S.C. 3585(b) to grant credit for time served under 
certain circumstances, the Commission recommends that any downward 
departure under this application note be clearly stated on the Judgment 
in a Criminal Case Order as a downward departure pursuant to Sec.  
5G1.3(d), rather than as a credit for time served.'';

[[Page 19844]]

    and inserting the following:
    ``Imposition of Sentence.--Unlike subsection (b), subsection (d) 
does not address an adjustment of the sentence for the instant offense 
for a period of imprisonment already served on the undischarged term of 
imprisonment. If the court does account for an undischarged term of 
imprisonment under subsection (d) in imposing the sentence, the 
Commission recommends that the court clearly state that the sentence 
was imposed pursuant to 18 U.S.C. 3553(a), rather than as a credit for 
time served, to avoid confusion with the Federal Bureau of Prisons' 
exclusive authority provided under 18 U.S.C. 3585(b) to grant credit 
for time served under certain circumstances.
    The court should note on the Judgment in a Criminal Case Order (i) 
that the sentence was imposed pursuant to 18 U.S.C. 3553(a); (ii) the 
amount of time by which the sentence is being adjusted; (iii) the 
undischarged term of imprisonment for which the adjustment is being 
given and the relevant case information (including docket number); and 
(iv) that the sentence imposed is to account for a period of 
imprisonment that will not be credited by the Federal Bureau of 
Prisons.'';
    and in Note 5 by striking the following:
    ``Downward Departure Provision.--In the case of a discharged term 
of imprisonment, a downward departure is not prohibited if the 
defendant (A) has completed serving a term of imprisonment; and (B) 
subsection (b) would have provided an adjustment had that completed 
term of imprisonment been undischarged at the time of sentencing for 
the instant offense. See Sec.  5K2.23 (Discharged Terms of 
Imprisonment).'';
    and inserting the following:
    ``Discharged Term of Imprisonment.--This guideline does not address 
an adjustment of the sentence for the instant offense for a period of 
imprisonment already served on a discharged term of imprisonment. 
Nonetheless, nothing in the Guidelines Manual abrogates a court's 
authority under 18 U.S.C. 3553(a) to consider a previously completed 
term of imprisonment in determining an appropriate sentence where 
subsection (b) above would have provided an adjustment had that 
completed term of imprisonment been undischarged at the time of 
sentencing for the instant offense.''.
    Chapter Five is amended by striking in its entirety Part H, as 
amended by Amendment 4 of this document, as follows:

``Part H--Specific Offender Characteristics

Introductory Commentary
    This part addresses the relevance of certain specific offender 
characteristics in sentencing. The Sentencing Reform Act (the `Act') 
contains several provisions regarding specific offender 
characteristics:
    First, the Act directs the Commission to ensure that the guidelines 
and policy statements `are entirely neutral' as to five 
characteristics--race, sex, national origin, creed, and socioeconomic 
status. See 28 U.S.C. 994(d).
    Second, the Act directs the Commission to consider whether eleven 
specific offender characteristics, `among others', have any relevance 
to the nature, extent, place of service, or other aspects of an 
appropriate sentence, and to take them into account in the guidelines 
and policy statements only to the extent that they do have relevance. 
See 28 U.S.C. 994(d).
    Third, the Act directs the Commission to ensure that the guidelines 
and policy statements, in recommending a term of imprisonment or length 
of a term of imprisonment, reflect the `general inappropriateness' of 
considering five of those characteristics--education; vocational 
skills; employment record; family ties and responsibilities; and 
community ties. See 28 U.S.C. 994(e).
    Fourth, the Act also directs the sentencing court, in determining 
the particular sentence to be imposed, to consider, among other 
factors, `the history and characteristics of the defendant'. See 18 
U.S.C. 3553(a)(1).
    Specific offender characteristics are taken into account in the 
guidelines in several ways. One important specific offender 
characteristic is the defendant's criminal history, see 28 U.S.C. 
994(d)(10), which is taken into account in the guidelines in Chapter 
Four (Criminal History and Criminal Livelihood). See Sec.  5H1.8 
(Criminal History). Another specific offender characteristic in the 
guidelines is the degree of dependence upon criminal history for a 
livelihood, see 28 U.S.C. 994(d)(11), which is taken into account in 
Chapter Four, Part B (Career Offenders and Criminal Livelihood). See 
Sec.  5H1.9 (Dependence upon Criminal Activity for a Livelihood). Other 
specific offender characteristics are accounted for elsewhere in this 
manual. See, e.g., Sec. Sec.  2C1.1(a)(1) and 2C1.2(a)(1) (providing 
alternative base offense levels if the defendant was a public 
official); 3B1.3 (Abuse of Position of Trust or Use of Special Skill); 
and 3E1.1 (Acceptance of Responsibility).
    The Supreme Court has emphasized that the advisory guideline system 
should `continue to move sentencing in Congress' preferred direction, 
helping to avoid excessive sentencing disparities while maintaining 
flexibility sufficient to individualize sentences where necessary.' See 
United States v. Booker, 543 U.S. 220, 264-65 (2005). Although the 
court must consider `the history and characteristics of the defendant' 
among other factors, see 18 U.S.C. 3553(a), in order to avoid 
unwarranted sentencing disparities the court should not give them 
excessive weight. Generally, the most appropriate use of specific 
offender characteristics is to consider them not as a reason for a 
sentence outside the applicable guideline range but for other reasons, 
such as in determining the sentence within the applicable guideline 
range, the type of sentence (e.g., probation or imprisonment) within 
the sentencing options available for the applicable Zone on the 
Sentencing Table, and various other aspects of an appropriate sentence. 
To avoid unwarranted sentencing disparities among defendants with 
similar records who have been found guilty of similar conduct, see 18 
U.S.C. 3553(a)(6), 28 U.S.C. 991(b)(1)(B), the guideline range, which 
reflects the defendant's criminal conduct and the defendant's criminal 
history, should continue to be `the starting point and the initial 
benchmark.' Gall v. United States, 552 U.S. 38, 49 (2007).
    Accordingly, the purpose of this part is to provide sentencing 
courts with a framework for addressing specific offender 
characteristics in a reasonably consistent manner. Using such a 
framework in a uniform manner will help `secure nationwide 
consistency,' see Gall v. United States, 552 U.S. 38, 49 (2007), `avoid 
unwarranted sentencing disparities,' see 28 U.S.C. 991(b)(1)(B), 18 
U.S.C. 3553(a)(6), `provide certainty and fairness,' see 28 U.S.C. 
991(b)(1)(B), and `promote respect for the law,' see 18 U.S.C. 
3553(a)(2)(A).
    This part allocates specific offender characteristics into three 
general categories.
    In the first category are specific offender characteristics the 
consideration of which Congress has prohibited (e.g., Sec.  5H1.10 
(Race, Sex, National Origin, Creed, Religion, and Socio-Economic 
Status)) or that the Commission has determined should be prohibited.
    In the second category are specific offender characteristics that 
Congress directed the Commission to take into account in the guidelines 
only to the

[[Page 19845]]

extent that they have relevance to sentencing. See 28 U.S.C. 994(d). 
For some of these, the policy statements indicate that these 
characteristics may be relevant in determining whether a sentence 
outside the applicable guideline range is warranted (e.g., age; mental 
and emotional condition; physical condition). These characteristics may 
warrant a sentence outside the applicable guideline range if the 
characteristic, individually or in combination with other such 
characteristics, is present to an unusual degree and distinguishes the 
case from the typical cases covered by the guidelines. These specific 
offender characteristics also may be considered for other reasons, such 
as in determining the sentence within the applicable guideline range, 
the type of sentence (e.g., probation or imprisonment) within the 
sentencing options available for the applicable Zone on the Sentencing 
Table, and various other aspects of an appropriate sentence.
    In the third category are specific offender characteristics that 
Congress directed the Commission to ensure are reflected in the 
guidelines and policy statements as generally inappropriate in 
recommending a term of imprisonment or length of a term of 
imprisonment. See 28 U.S.C. 994(e). The policy statements indicate that 
these characteristics are not ordinarily relevant to the determination 
of whether a sentence should be outside the applicable guideline range. 
Unless expressly stated, this does not mean that the Commission views 
such circumstances as necessarily inappropriate to the determination of 
the sentence within the applicable guideline range, the type of 
sentence (e.g., probation or imprisonment) within the sentencing 
options available for the applicable Zone on the Sentencing Table, or 
various other aspects of an appropriate sentence (e.g., the appropriate 
conditions of probation or supervised release). Furthermore, although 
these circumstances are not ordinarily relevant to the determination of 
whether a sentence should be outside the applicable guideline range, 
they may be relevant to this determination in exceptional cases. They 
also may be relevant if a combination of such circumstances makes the 
case an exceptional one, but only if each such circumstance is 
identified as an affirmative ground for departure and is present in the 
case to a substantial degree. See Sec.  5K2.0 (Grounds for Departure).
    As with the other provisions in this manual, these policy 
statements `are evolutionary in nature'. See Chapter One, Part A, 
Subpart 2 (Continuing Evolution and Role of the Guidelines); 28 U.S.C. 
994(o). The Commission expects, and the Sentencing Reform Act 
contemplates, that continuing research, experience, and analysis will 
result in modifications and revisions.
    The nature, extent, and significance of specific offender 
characteristics can involve a range of considerations. The Commission 
will continue to provide information to the courts on the relevance of 
specific offender characteristics in sentencing, as the Sentencing 
Reform Act contemplates. See, e.g., 28 U.S.C. 995(a)(12)(A) (the 
Commission serves as a `clearinghouse and information center' on 
federal sentencing). Among other things, this may include information 
on the use of specific offender characteristics, individually and in 
combination, in determining the sentence to be imposed (including, 
where available, information on rates of use, criteria for use, and 
reasons for use); the relationship, if any, between specific offender 
characteristics and (A) the `forbidden factors' specified in 28 U.S.C. 
994(d) and (B) the `discouraged factors' specified in 28 U.S.C. 994(e); 
and the relationship, if any, between specific offender characteristics 
and the statutory purposes of sentencing.

Sec.  5H1.1. Age (Policy Statement)

    Age may be relevant in determining whether a departure is 
warranted.
    Age may be a reason to depart downward in a case in which the 
defendant is elderly and infirm and where a form of punishment such as 
home confinement might be equally efficient as and less costly than 
incarceration.
    A downward departure also may be warranted due to the defendant's 
youthfulness at the time of the offense or prior offenses. Certain risk 
factors may affect a youthful individual's development into the mid-
20's and contribute to involvement in criminal justice systems, 
including environment, adverse childhood experiences, substance use, 
lack of educational opportunities, and familial relationships. In 
addition, youthful individuals generally are more impulsive, risk-
seeking, and susceptible to outside influence as their brains continue 
to develop into young adulthood. Youthful individuals also are more 
amenable to rehabilitation.
    The age-crime curve, one of the most consistent findings in 
criminology, demonstrates that criminal behavior tends to decrease with 
age. Age-appropriate interventions and other protective factors may 
promote desistance from crime. Accordingly, in an appropriate case, the 
court may consider whether a form of punishment other than imprisonment 
might be sufficient to meet the purposes of sentencing.
    Physical condition, which may be related to age, is addressed at 
Sec.  5H1.4 (Physical Condition, Including Drug or Alcohol Dependence 
or Abuse; Gambling Addiction).

Sec.  5H1.2. Education and Vocational Skills (Policy Statement)

    Education and vocational skills are not ordinarily relevant in 
determining whether a departure is warranted, but the extent to which a 
defendant may have misused special training or education to facilitate 
criminal activity is an express guideline factor.

See Sec.  3B1.3 (Abuse of Position of Trust or Use of Special Skill).

    Education and vocational skills may be relevant in determining the 
conditions of probation or supervised release for rehabilitative 
purposes, for public protection by restricting activities that allow 
for the utilization of a certain skill, or in determining the 
appropriate type of community service.

Sec.  5H1.3. Mental and Emotional Conditions (Policy Statement)

    Mental and emotional conditions may be relevant in determining 
whether a departure is warranted, if such conditions, individually or 
in combination with other offender characteristics, are present to an 
unusual degree and distinguish the case from the typical cases covered 
by the guidelines. See also Chapter Five, Part K, Subpart 2 (Other 
Grounds for Departure).
    In certain cases a downward departure may be appropriate to 
accomplish a specific treatment purpose. See Sec.  5C1.1, Application 
Note 7.
    Mental and emotional conditions may be relevant in determining the 
conditions of probation or supervised release; e.g., participation in a 
mental health program (see Sec. Sec.  5B1.3(d)(5) and 5D1.3(b)(3)(E)).
Sec.  5H1.4. Physical Condition, Including Drug or Alcohol Dependence 
or Abuse; Gambling Addiction (Policy Statement)

    Physical condition or appearance, including physique, may be 
relevant in determining whether a departure is warranted, if the 
condition or appearance, individually or in combination with other 
offender characteristics, is present to an unusual degree and 
distinguishes the case from the typical cases covered by the 
guidelines. An extraordinary physical

[[Page 19846]]

impairment may be a reason to depart downward; e.g., in the case of a 
seriously infirm defendant, home detention may be as efficient as, and 
less costly than, imprisonment.
    Drug or alcohol dependence or abuse ordinarily is not a reason for 
a downward departure. Substance abuse is highly correlated to an 
increased propensity to commit crime. Due to this increased risk, it is 
highly recommended that a defendant who is incarcerated also be 
sentenced to supervised release with a requirement that the defendant 
participate in an appropriate substance abuse program (see Sec.  
5D1.3(b)(3)(D)). If participation in a substance abuse program is 
required, the length of supervised release should take into account the 
length of time necessary for the probation office to judge the success 
of the program.
    In certain cases a downward departure may be appropriate to 
accomplish a specific treatment purpose. See Sec.  5C1.1, Application 
Note 7.
    In a case in which a defendant who is a substance abuser is 
sentenced to probation, it is strongly recommended that the conditions 
of probation contain a requirement that the defendant participate in an 
appropriate substance abuse program (see Sec.  5B1.3(d)(4)).
    Addiction to gambling is not a reason for a downward departure.

Sec.  5H1.5. Employment Record (Policy Statement)

    Employment record is not ordinarily relevant in determining whether 
a departure is warranted.
    Employment record may be relevant in determining the conditions of 
probation or supervised release (e.g., the appropriate hours of home 
detention).

Sec.  5H1.6. Family Ties and Responsibilities (Policy Statement)

    In sentencing a defendant convicted of an offense other than an 
offense described in the following paragraph, family ties and 
responsibilities are not ordinarily relevant in determining whether a 
departure may be warranted.
    In sentencing a defendant convicted of an offense involving a minor 
victim under section 1201, an offense under section 1591, or an offense 
under chapter 71, 109A, 110, or 117, of title 18, United States Code, 
family ties and responsibilities and community ties are not relevant in 
determining whether a sentence should be below the applicable guideline 
range.
    Family responsibilities that are complied with may be relevant to 
the determination of the amount of restitution or fine.
Commentary
    Application Note:
    1. Circumstances to Consider.--
    (A) In General.--In determining whether a departure is warranted 
under this policy statement, the court shall consider the following 
non-exhaustive list of circumstances:
    (i) The seriousness of the offense.
    (ii) The involvement in the offense, if any, of members of the 
defendant's family.
    (iii) The danger, if any, to members of the defendant's family as a 
result of the offense.
    (B) Departures Based on Loss of Caretaking or Financial Support.--A 
departure under this policy statement based on the loss of caretaking 
or financial support of the defendant's family requires, in addition to 
the court's consideration of the non-exhaustive list of circumstances 
in subdivision (A), the presence of the following circumstances:
    (i) The defendant's service of a sentence within the applicable 
guideline range will cause a substantial, direct, and specific loss of 
essential caretaking, or essential financial support, to the 
defendant's family.
    (ii) The loss of caretaking or financial support substantially 
exceeds the harm ordinarily incident to incarceration for a similarly 
situated defendant. For example, the fact that the defendant's family 
might incur some degree of financial hardship or suffer to some extent 
from the absence of a parent through incarceration is not in itself 
sufficient as a basis for departure because such hardship or suffering 
is of a sort ordinarily incident to incarceration.
    (iii) The loss of caretaking or financial support is one for which 
no effective remedial or ameliorative programs reasonably are 
available, making the defendant's caretaking or financial support 
irreplaceable to the defendant's family.
    (iv) The departure effectively will address the loss of caretaking 
or financial support.
    Background: Section 401(b)(4) of Public Law 108-21 directly amended 
this policy statement to add the second paragraph, effective April 30, 
2003.

Sec.  5H1.7. Role in the Offense (Policy Statement)

    A defendant's role in the offense is relevant in determining the 
applicable guideline range (see Chapter Three, Part B (Role in the 
Offense)) but is not a basis for departing from that range (see 
subsection (d) of Sec.  5K2.0 (Grounds for Departures)).

Sec.  5H1.8. Criminal History (Policy Statement)

    A defendant's criminal history is relevant in determining the 
applicable criminal history category. See Chapter Four (Criminal 
History and Criminal Livelihood). For grounds of departure based on the 
defendant's criminal history, see Sec.  4A1.3 (Departures Based on 
Inadequacy of Criminal History Category).

Sec.  5H1.9. Dependence upon Criminal Activity for a Livelihood (Policy 
Statement)

    The degree to which a defendant depends upon criminal activity for 
a livelihood is relevant in determining the appropriate sentence. See 
Chapter Four, Part B (Career Offenders and Criminal Livelihood).

Sec.  5H1.10. Race, Sex, National Origin, Creed, Religion, and Socio-
Economic Status (Policy Statement)

    These factors are not relevant in the determination of a sentence.

Sec.  5H1.11. Military, Civic, Charitable, or Public Service; 
Employment-Related Contributions; Record of Prior Good Works (Policy 
Statement)

    Military service may be relevant in determining whether a departure 
is warranted, if the military service, individually or in combination 
with other offender characteristics, is present to an unusual degree 
and distinguishes the case from the typical cases covered by the 
guidelines.
    Civic, charitable, or public service; employment-related 
contributions; and similar prior good works are not ordinarily relevant 
in determining whether a departure is warranted.

Sec.  5H1.12. Lack of Guidance as a Youth and Similar Circumstances 
(Policy Statement)

    Lack of guidance as a youth and similar circumstances indicating a 
disadvantaged upbringing are not relevant grounds in determining 
whether a departure is warranted.''.
    Chapter Five, Part K is amended in the heading by striking 
``DEPARTURES'' and inserting ``ASSISTANCE TO AUTHORITIES''.
    Chapter Five, Part K, Subpart 1 is amended by striking the heading 
as follows:

``1. Substantial Assistance to Authorities''

    Section 5K1.1 is amended by striking ``the court may depart from 
the guidelines'' and inserting ``a sentence that is below the otherwise 
applicable guideline range may be appropriate''.

[[Page 19847]]

    Chapter Five, Part K is amended by striking Subparts 2 and 3 in 
their entirety as follows:

``2. Other Grounds for Departure

Sec.  5K2.0. Grounds for Departure (Policy Statement)

    (a) Upward Departures in General and Downward Departures in 
Criminal Cases Other Than Child Crimes and Sexual Offenses.--
    (1) In General.--The sentencing court may depart from the 
applicable guideline range if--
    (A) in the case of offenses other than child crimes and sexual 
offenses, the court finds, pursuant to 18 U.S.C. 3553(b)(1), that there 
exists an aggravating or mitigating circumstance; or
    (B) in the case of child crimes and sexual offenses, the court 
finds, pursuant to 18 U.S.C. 3553(b)(2)(A)(i), that there exists an 
aggravating circumstance,
    of a kind, or to a degree, not adequately taken into consideration 
by the Sentencing Commission in formulating the guidelines that, in 
order to advance the objectives set forth in 18 U.S.C. 3553(a)(2), 
should result in a sentence different from that described.
    (2) Departures Based on Circumstances of a Kind Not Adequately 
Taken Into Consideration.--
    (A) Identified Circumstances.--This subpart (Chapter Five, Part K, 
Subpart 2 (Other Grounds for Departure)) identifies some of the 
circumstances that the Commission may have not adequately taken into 
consideration in determining the applicable guideline range (e.g., as a 
specific offense characteristic or other adjustment). If any such 
circumstance is present in the case and has not adequately been taken 
into consideration in determining the applicable guideline range, a 
departure consistent with 18 U.S.C. 3553(b) and the provisions of this 
subpart may be warranted.
    (B) Unidentified Circumstances.--A departure may be warranted in 
the exceptional case in which there is present a circumstance that the 
Commission has not identified in the guidelines but that nevertheless 
is relevant to determining the appropriate sentence.
    (3) Departures Based on Circumstances Present to a Degree Not 
Adequately Taken into Consideration.--A departure may be warranted in 
an exceptional case, even though the circumstance that forms the basis 
for the departure is taken into consideration in determining the 
guideline range, if the court determines that such circumstance is 
present in the offense to a degree substantially in excess of, or 
substantially below, that which ordinarily is involved in that kind of 
offense.
    (4) Departures Based on Not Ordinarily Relevant Offender 
Characteristics and Other Circumstances.--An offender characteristic or 
other circumstance identified in Chapter Five, Part H (Offender 
Characteristics) or elsewhere in the guidelines as not ordinarily 
relevant in determining whether a departure is warranted may be 
relevant to this determination only if such offender characteristic or 
other circumstance is present to an exceptional degree.
    (b) Downward Departures in Child Crimes and Sexual Offenses.--Under 
18 U.S.C. 3553(b)(2)(A)(ii), the sentencing court may impose a sentence 
below the range established by the applicable guidelines only if the 
court finds that there exists a mitigating circumstance of a kind, or 
to a degree, that--
    (1) has been affirmatively and specifically identified as a 
permissible ground of downward departure in the sentencing guidelines 
or policy statements issued under section 994(a) of title 28, United 
States Code, taking account of any amendments to such sentencing 
guidelines or policy statements by act of Congress;
    (2) has not adequately been taken into consideration by the 
Sentencing Commission in formulating the guidelines; and
    (3) should result in a sentence different from that described.
    The grounds enumerated in this Part K of Chapter Five are the sole 
grounds that have been affirmatively and specifically identified as a 
permissible ground of downward departure in these sentencing guidelines 
and policy statements. Thus, notwithstanding any other reference to 
authority to depart downward elsewhere in this Sentencing Manual, a 
ground of downward departure has not been affirmatively and 
specifically identified as a permissible ground of downward departure 
within the meaning of section 3553(b)(2) unless it is expressly 
enumerated in this Part K as a ground upon which a downward departure 
may be granted.
    (c) Limitation on Departures Based on Multiple Circumstances.--The 
court may depart from the applicable guideline range based on a 
combination of two or more offender characteristics or other 
circumstances, none of which independently is sufficient to provide a 
basis for departure, only if--
    (1) such offender characteristics or other circumstances, taken 
together, make the case an exceptional one; and
    (2) each such offender characteristic or other circumstance is--
    (A) present to a substantial degree; and
    (B) identified in the guidelines as a permissible ground for 
departure, even if such offender characteristic or other circumstance 
is not ordinarily relevant to a determination of whether a departure is 
warranted.
    (d) Prohibited Departures.--Notwithstanding subsections (a) and (b) 
of this policy statement, or any other provision in the guidelines, the 
court may not depart from the applicable guideline range based on any 
of the following circumstances:
    (1) Any circumstance specifically prohibited as a ground for 
departure in Sec. Sec.  5H1.10 (Race, Sex, National Origin, Creed, 
Religion, and Socio-Economic Status), 5H1.12 (Lack of Guidance as a 
Youth and Similar Circumstances), the last sentence of 5H1.4 (Physical 
Condition, Including Drug or Alcohol Dependence or Abuse; Gambling 
Addiction), and the last sentence of 5K2.12 (Coercion and Duress).
    (2) The defendant's acceptance of responsibility for the offense, 
which may be taken into account only under Sec.  3E1.1 (Acceptance of 
Responsibility).
    (3) The defendant's aggravating or mitigating role in the offense, 
which may be taken into account only under Sec.  3B1.1 (Aggravating 
Role) or Sec.  3B1.2 (Mitigating Role), respectively.
    (4) The defendant's decision, in and of itself, to plead guilty to 
the offense or to enter a plea agreement with respect to the offense 
(i.e., a departure may not be based merely on the fact that the 
defendant decided to plead guilty or to enter into a plea agreement, 
but a departure may be based on justifiable, non-prohibited reasons as 
part of a sentence that is recommended, or agreed to, in the plea 
agreement and accepted by the court. See Sec.  6B1.2 (Standards for 
Acceptance of Plea Agreement).
    (5) The defendant's fulfillment of restitution obligations only to 
the extent required by law including the guidelines (i.e., a departure 
may not be based on unexceptional efforts to remedy the harm caused by 
the offense).
    (6) Any other circumstance specifically prohibited as a ground for 
departure in the guidelines.
    (e) Requirement of Specific Written Reasons for Departure.--If the 
court departs from the applicable guideline range, it shall state, 
pursuant to 18 U.S.C. 3553(c), its specific reasons for departure in 
open court at the time of

[[Page 19848]]

sentencing and, with limited exception in the case of statements 
received in camera, shall state those reasons with specificity in the 
statement of reasons form.
Commentary
    Application Notes:
    1. Definitions.--For purposes of this policy statement:
    `Circumstance' includes, as appropriate, an offender characteristic 
or any other offense factor.
    `Depart', `departure', `downward departure', and `upward departure' 
have the meaning given those terms in Application Note 1 of the 
Commentary to Sec.  1B1.1 (Application Instructions).
    2. Scope of this Policy Statement.--
    (A) Departures Covered by this Policy Statement.--This policy 
statement covers departures from the applicable guideline range based 
on offense characteristics or offender characteristics of a kind, or to 
a degree, not adequately taken into consideration in determining that 
range. See 18 U.S.C. 3553(b).
    Subsection (a) of this policy statement applies to upward 
departures in all cases covered by the guidelines and to downward 
departures in all such cases except for downward departures in child 
crimes and sexual offenses.
    Subsection (b) of this policy statement applies only to downward 
departures in child crimes and sexual offenses.
    (B) Departures Covered by Other Guidelines.--This policy statement 
does not cover the following departures, which are addressed elsewhere 
in the guidelines: (i) departures based on the defendant's criminal 
history (see Chapter Four (Criminal History and Criminal Livelihood), 
particularly Sec.  4A1.3 (Departures Based on Inadequacy of Criminal 
History Category)); (ii) departures based on the defendant's 
substantial assistance to the authorities (see Sec.  5K1.1 (Substantial 
Assistance to Authorities)); and (iii) departures based on early 
disposition programs (see Sec.  5K3.1 (Early Disposition Programs)).
    3. Kinds and Expected Frequency of Departures under Subsection 
(a).--As set forth in subsection (a), there generally are two kinds of 
departures from the guidelines based on offense characteristics and/or 
offender characteristics: (A) departures based on circumstances of a 
kind not adequately taken into consideration in the guidelines; and (B) 
departures based on circumstances that are present to a degree not 
adequately taken into consideration in the guidelines.
    (A) Departures Based on Circumstances of a Kind Not Adequately 
Taken into Account in Guidelines.--Subsection (a)(2) authorizes the 
court to depart if there exists an aggravating or a mitigating 
circumstance in a case under 18 U.S.C. 3553(b)(1), or an aggravating 
circumstance in a case under 18 U.S.C. 3553(b)(2)(A)(i), of a kind not 
adequately taken into consideration in the guidelines.
    (i) Identified Circumstances.--This subpart (Chapter Five, Part K, 
Subpart 2) identifies several circumstances that the Commission may 
have not adequately taken into consideration in setting the offense 
level for certain cases. Offense guidelines in Chapter Two (Offense 
Conduct) and adjustments in Chapter Three (Adjustments) sometimes 
identify circumstances the Commission may have not adequately taken 
into consideration in setting the offense level for offenses covered by 
those guidelines. If the offense guideline in Chapter Two or an 
adjustment in Chapter Three does not adequately take that circumstance 
into consideration in setting the offense level for the offense, and 
only to the extent not adequately taken into consideration, a departure 
based on that circumstance may be warranted.
    (ii) Unidentified Circumstances.--A case may involve circumstances, 
in addition to those identified by the guidelines, that have not 
adequately been taken into consideration by the Commission, and the 
presence of any such circumstance may warrant departure from the 
guidelines in that case. However, inasmuch as the Commission has 
continued to monitor and refine the guidelines since their inception to 
take into consideration relevant circumstances in sentencing, it is 
expected that departures based on such unidentified circumstances will 
occur rarely and only in exceptional cases.
    (B) Departures Based on Circumstances Present to a Degree Not 
Adequately Taken into Consideration in Guidelines.--
    (i) In General.--Subsection (a)(3) authorizes the court to depart 
if there exists an aggravating or a mitigating circumstance in a case 
under 18 U.S.C. 3553(b)(1), or an aggravating circumstance in a case 
under 18 U.S.C. 3553(b)(2)(A)(i), to a degree not adequately taken into 
consideration in the guidelines. However, inasmuch as the Commission 
has continued to monitor and refine the guidelines since their 
inception to determine the most appropriate weight to be accorded the 
mitigating and aggravating circumstances specified in the guidelines, 
it is expected that departures based on the weight accorded to any such 
circumstance will occur rarely and only in exceptional cases.
    (ii) Examples.--As set forth in subsection (a)(3), if the 
applicable offense guideline and adjustments take into consideration a 
circumstance identified in this subpart, departure is warranted only if 
the circumstance is present to a degree substantially in excess of that 
which ordinarily is involved in the offense. Accordingly, a departure 
pursuant to Sec.  5K2.7 for the disruption of a governmental function 
would have to be substantial to warrant departure from the guidelines 
when the applicable offense guideline is bribery or obstruction of 
justice. When the guideline covering the mailing of injurious articles 
is applicable, however, and the offense caused disruption of a 
governmental function, departure from the applicable guideline range 
more readily would be appropriate. Similarly, physical injury would not 
warrant departure from the guidelines when the robbery offense 
guideline is applicable because the robbery guideline includes a 
specific adjustment based on the extent of any injury. However, because 
the robbery guideline does not deal with injury to more than one 
victim, departure may be warranted if several persons were injured.
    (C) Departures Based on Circumstances Identified as Not Ordinarily 
Relevant.--Because certain circumstances are specified in the 
guidelines as not ordinarily relevant to sentencing (see, e.g., Chapter 
Five, Part H (Specific Offender Characteristics)), a departure based on 
any one of such circumstances should occur only in exceptional cases, 
and only if the circumstance is present in the case to an exceptional 
degree. If two or more of such circumstances each is present in the 
case to a substantial degree, however, and taken together make the case 
an exceptional one, the court may consider whether a departure would be 
warranted pursuant to subsection (c). Departures based on a combination 
of not ordinarily relevant circumstances that are present to a 
substantial degree should occur extremely rarely and only in 
exceptional cases.
    In addition, as required by subsection (e), each circumstance 
forming the basis for a departure described in this subparagraph shall 
be stated with specificity in the statement of reasons form.
    4. Downward Departures in Child Crimes and Sexual Offenses.--
    (A) Definition.--For purposes of this policy statement, the term 
`child crimes and sexual offenses' means offenses under any of the 
following: 18 U.S.C. 1201 (involving a minor victim), 18

[[Page 19849]]

U.S.C. 1591, or chapter 71, 109A, 110, or 117 of title 18, United 
States Code.
    (B) Standard for Departure.--
    (i) Requirement of Affirmative and Specific Identification of 
Departure Ground.--The standard for a downward departure in child 
crimes and sexual offenses differs from the standard for other 
departures under this policy statement in that it includes a 
requirement, set forth in 18 U.S.C. 3553(b)(2)(A)(ii)(I) and subsection 
(b)(1) of this guideline, that any mitigating circumstance that forms 
the basis for such a downward departure be affirmatively and 
specifically identified as a ground for downward departure in this part 
(i.e., Chapter Five, Part K).
    (ii) Application of Subsection (b)(2).--The commentary in 
Application Note 3 of this policy statement, except for the commentary 
in Application Note 3(A)(ii) relating to unidentified circumstances, 
shall apply to the court's determination of whether a case meets the 
requirement, set forth in subsection 18 U.S.C. 3553(b)(2)(A)(ii)(II) 
and subsection (b)(2) of this policy statement, that the mitigating 
circumstance forming the basis for a downward departure in child crimes 
and sexual offenses be of kind, or to a degree, not adequately taken 
into consideration by the Commission.
    5. Departures Based on Plea Agreements.--Subsection (d)(4) 
prohibits a downward departure based only on the defendant's decision, 
in and of itself, to plead guilty to the offense or to enter a plea 
agreement with respect to the offense. Even though a departure may not 
be based merely on the fact that the defendant agreed to plead guilty 
or enter a plea agreement, a departure may be based on justifiable, 
non-prohibited reasons for departure as part of a sentence that is 
recommended, or agreed to, in the plea agreement and accepted by the 
court. See Sec.  6B1.2 (Standards for Acceptance of Plea Agreements). 
In cases in which the court departs based on such reasons as set forth 
in the plea agreement, the court must state the reasons for departure 
with specificity in the statement of reasons form, as required by 
subsection (e).
    Background: This policy statement sets forth the standards for 
departing from the applicable guideline range based on offense and 
offender characteristics of a kind, or to a degree, not adequately 
considered by the Commission. Circumstances the Commission has 
determined are not ordinarily relevant to determining whether a 
departure is warranted or are prohibited as bases for departure are 
addressed in Chapter Five, Part H (Offender Characteristics) and in 
this policy statement. Other departures, such as those based on the 
defendant's criminal history, the defendant's substantial assistance to 
authorities, and early disposition programs, are addressed elsewhere in 
the guidelines.
    As acknowledged by Congress in the Sentencing Reform Act and by the 
Commission when the first set of guidelines was promulgated, `it is 
difficult to prescribe a single set of guidelines that encompasses the 
vast range of human conduct potentially relevant to a sentencing 
decision.' (See Chapter One, Part A). Departures, therefore, perform an 
integral function in the sentencing guideline system. Departures permit 
courts to impose an appropriate sentence in the exceptional case in 
which mechanical application of the guidelines would fail to achieve 
the statutory purposes and goals of sentencing. Departures also help 
maintain `sufficient flexibility to permit individualized sentences 
when warranted by mitigating or aggravating factors not taken into 
account in the establishment of general sentencing practices.' 28 
U.S.C. 991(b)(1)(B). By monitoring when courts depart from the 
guidelines and by analyzing their stated reasons for doing so, along 
with appellate cases reviewing these departures, the Commission can 
further refine the guidelines to specify more precisely when departures 
should and should not be permitted.
    As reaffirmed in the Prosecutorial Remedies and Other Tools to end 
the Exploitation of Children Today Act of 2003 (the `PROTECT Act', 
Public Law 108-21), circumstances warranting departure should be rare. 
Departures were never intended to permit sentencing courts to 
substitute their policy judgments for those of Congress and the 
Sentencing Commission. Departure in such circumstances would produce 
unwarranted sentencing disparity, which the Sentencing Reform Act was 
designed to avoid.
    In order for appellate courts to fulfill their statutory duties 
under 18 U.S.C. 3742 and for the Commission to fulfill its ongoing 
responsibility to refine the guidelines in light of information it 
receives on departures, it is essential that sentencing courts state 
with specificity the reasons for departure, as required by the PROTECT 
Act.
    This policy statement, including its commentary, was substantially 
revised, effective October 27, 2003, in response to directives 
contained in the PROTECT Act, particularly the directive in section 
401(m) of that Act to--
    `(1) review the grounds of downward departure that are authorized 
by the sentencing guidelines, policy statements, and official 
commentary of the Sentencing Commission; and
    (2) promulgate, pursuant to section 994 of title 28, United States 
Code--
    (A) appropriate amendments to the sentencing guidelines, policy 
statements, and official commentary to ensure that the incidence of 
downward departures is substantially reduced;
    (B) a policy statement authorizing a departure pursuant to an early 
disposition program; and
    (C) any other conforming amendments to the sentencing guidelines, 
policy statements, and official commentary of the Sentencing Commission 
necessitated by the Act, including a revision of . . . section 5K2.0'.
    The substantial revision of this policy statement in response to 
the PROTECT Act was intended to refine the standards applicable to 
departures while giving due regard for concepts, such as the 
`heartland', that have evolved in departure jurisprudence over time.
    Section 401(b)(1) of the PROTECT Act directly amended this policy 
statement to add subsection (b), effective April 30, 2003.

Sec.  5K2.1. Death (Policy Statement)

    If death resulted, the court may increase the sentence above the 
authorized guideline range.
    Loss of life does not automatically suggest a sentence at or near 
the statutory maximum. The sentencing judge must give consideration to 
matters that would normally distinguish among levels of homicide, such 
as the defendant's state of mind and the degree of planning or 
preparation. Other appropriate factors are whether multiple deaths 
resulted, and the means by which life was taken. The extent of the 
increase should depend on the dangerousness of the defendant's conduct, 
the extent to which death or serious injury was intended or knowingly 
risked, and the extent to which the offense level for the offense of 
conviction, as determined by the other Chapter Two guidelines, already 
reflects the risk of personal injury. For example, a substantial 
increase may be appropriate if the death was intended or knowingly 
risked or if the underlying offense was one for which base offense 
levels do not reflect an allowance for the risk of personal injury, 
such as fraud.

Sec.  5K2.2. Physical Injury (Policy Statement)

    If significant physical injury resulted, the court may increase the 
sentence above the authorized guideline range. The extent of the 
increase ordinarily should depend on the extent of the injury, the 
degree to which it may prove

[[Page 19850]]

permanent, and the extent to which the injury was intended or knowingly 
risked. When the victim suffers a major, permanent disability and when 
such injury was intentionally inflicted, a substantial departure may be 
appropriate. If the injury is less serious or if the defendant (though 
criminally negligent) did not knowingly create the risk of harm, a less 
substantial departure would be indicated. In general, the same 
considerations apply as in Sec.  5K2.1.

Sec.  5K2.3. Extreme Psychological Injury (Policy Statement)

    If a victim or victims suffered psychological injury much more 
serious than that normally resulting from commission of the offense, 
the court may increase the sentence above the authorized guideline 
range. The extent of the increase ordinarily should depend on the 
severity of the psychological injury and the extent to which the injury 
was intended or knowingly risked.
    Normally, psychological injury would be sufficiently severe to 
warrant application of this adjustment only when there is a substantial 
impairment of the intellectual, psychological, emotional, or behavioral 
functioning of a victim, when the impairment is likely to be of an 
extended or continuous duration, and when the impairment manifests 
itself by physical or psychological symptoms or by changes in behavior 
patterns. The court should consider the extent to which such harm was 
likely, given the nature of the defendant's conduct.

Sec.  5K2.4. Abduction or Unlawful Restraint (Policy Statement)

    If a person was abducted, taken hostage, or unlawfully restrained 
to facilitate commission of the offense or to facilitate the escape 
from the scene of the crime, the court may increase the sentence above 
the authorized guideline range.

Sec.  5K2.5. Property Damage or Loss (Policy Statement)

    If the offense caused property damage or loss not taken into 
account within the guidelines, the court may increase the sentence 
above the authorized guideline range. The extent of the increase 
ordinarily should depend on the extent to which the harm was intended 
or knowingly risked and on the extent to which the harm to property is 
more serious than other harm caused or risked by the conduct relevant 
to the offense of conviction.

Sec.  5K2.6. Weapons and Dangerous Instrumentalities (Policy Statement)

    If a weapon or dangerous instrumentality was used or possessed in 
the commission of the offense the court may increase the sentence above 
the authorized guideline range. The extent of the increase ordinarily 
should depend on the dangerousness of the weapon, the manner in which 
it was used, and the extent to which its use endangered others. The 
discharge of a firearm might warrant a substantial sentence increase.

Sec.  5K2.7. Disruption of Governmental Function (Policy Statement)

    If the defendant's conduct resulted in a significant disruption of 
a governmental function, the court may increase the sentence above the 
authorized guideline range to reflect the nature and extent of the 
disruption and the importance of the governmental function affected. 
Departure from the guidelines ordinarily would not be justified when 
the offense of conviction is an offense such as bribery or obstruction 
of justice; in such cases interference with a governmental function is 
inherent in the offense, and unless the circumstances are unusual the 
guidelines will reflect the appropriate punishment for such 
interference.

Sec.  5K2.8. Extreme Conduct (Policy Statement)

    If the defendant's conduct was unusually heinous, cruel, brutal, or 
degrading to the victim, the court may increase the sentence above the 
guideline range to reflect the nature of the conduct. Examples of 
extreme conduct include torture of a victim, gratuitous infliction of 
injury, or prolonging of pain or humiliation.

Sec.  5K2.9. Criminal Purpose (Policy Statement)

    If the defendant committed the offense in order to facilitate or 
conceal the commission of another offense, the court may increase the 
sentence above the guideline range to reflect the actual seriousness of 
the defendant's conduct.

Sec.  5K2.10. Victim's Conduct (Policy Statement)

    If the victim's wrongful conduct contributed significantly to 
provoking the offense behavior, the court may reduce the sentence below 
the guideline range to reflect the nature and circumstances of the 
offense. In deciding whether a sentence reduction is warranted, and the 
extent of such reduction, the court should consider the following:
    (1) The size and strength of the victim, or other relevant physical 
characteristics, in comparison with those of the defendant.
    (2) The persistence of the victim's conduct and any efforts by the 
defendant to prevent confrontation.
    (3) The danger reasonably perceived by the defendant, including the 
victim's reputation for violence.
    (4) The danger actually presented to the defendant by the victim.
    (5) Any other relevant conduct by the victim that substantially 
contributed to the danger presented.
    (6) The proportionality and reasonableness of the defendant's 
response to the victim's provocation.
    Victim misconduct ordinarily would not be sufficient to warrant 
application of this provision in the context of offenses under Chapter 
Two, Part A, Subpart 3 (Criminal Sexual Abuse). In addition, this 
provision usually would not be relevant in the context of non-violent 
offenses. There may, however, be unusual circumstances in which 
substantial victim misconduct would warrant a reduced penalty in the 
case of a non-violent offense. For example, an extended course of 
provocation and harassment might lead a defendant to steal or destroy 
property in retaliation.

Sec.  5K2.11. Lesser Harms (Policy Statement)

    Sometimes, a defendant may commit a crime in order to avoid a 
perceived greater harm. In such instances, a reduced sentence may be 
appropriate, provided that the circumstances significantly diminish 
society's interest in punishing the conduct, for example, in the case 
of a mercy killing. Where the interest in punishment or deterrence is 
not reduced, a reduction in sentence is not warranted. For example, 
providing defense secrets to a hostile power should receive no lesser 
punishment simply because the defendant believed that the government's 
policies were misdirected.
    In other instances, conduct may not cause or threaten the harm or 
evil sought to be prevented by the law proscribing the offense at 
issue. For example, where a war veteran possessed a machine gun or 
grenade as a trophy, or a school teacher possessed controlled 
substances for display in a drug education program, a reduced sentence 
might be warranted.

Sec.  5K2.12. Coercion and Duress (Policy Statement)

    If the defendant committed the offense because of serious coercion, 
blackmail or duress, under circumstances not amounting to a complete 
defense, the court may depart downward. The extent of the decrease 
ordinarily should depend on the reasonableness of the defendant's

[[Page 19851]]

actions, on the proportionality of the defendant's actions to the 
seriousness of coercion, blackmail, or duress involved, and on the 
extent to which the conduct would have been less harmful under the 
circumstances as the defendant believed them to be. Ordinarily coercion 
will be sufficiently serious to warrant departure only when it involves 
a threat of physical injury, substantial damage to property or similar 
injury resulting from the unlawful action of a third party or from a 
natural emergency. Notwithstanding this policy statement, personal 
financial difficulties and economic pressures upon a trade or business 
do not warrant a downward departure.

Sec.  5K2.13. Diminished Capacity (Policy Statement)

    A downward departure may be warranted if (1) the defendant 
committed the offense while suffering from a significantly reduced 
mental capacity; and (2) the significantly reduced mental capacity 
contributed substantially to the commission of the offense. Similarly, 
if a departure is warranted under this policy statement, the extent of 
the departure should reflect the extent to which the reduced mental 
capacity contributed to the commission of the offense.
    However, the court may not depart below the applicable guideline 
range if (1) the significantly reduced mental capacity was caused by 
the voluntary use of drugs or other intoxicants; (2) the facts and 
circumstances of the defendant's offense indicate a need to protect the 
public because the offense involved actual violence or a serious threat 
of violence; (3) the defendant's criminal history indicates a need to 
incarcerate the defendant to protect the public; or (4) the defendant 
has been convicted of an offense under chapter 71, 109A, 110, or 117, 
of title 18, United States Code.
Commentary
    Application Note:
    1. For purposes of this policy statement--
    `Significantly reduced mental capacity' means the defendant, 
although convicted, has a significantly impaired ability to (A) 
understand the wrongfulness of the behavior comprising the offense or 
to exercise the power of reason; or (B) control behavior that the 
defendant knows is wrongful.
    Background: Section 401(b)(5) of Public Law 108-21 directly amended 
this policy statement to add subdivision (4), effective April 30, 2003.

Sec.  5K2.14. Public Welfare (Policy Statement)

    If national security, public health, or safety was significantly 
endangered, the court may depart upward to reflect the nature and 
circumstances of the offense.

Sec.  5K2.16. Voluntary Disclosure of Offense (Policy Statement)

    If the defendant voluntarily discloses to authorities the existence 
of, and accepts responsibility for, the offense prior to the discovery 
of such offense, and if such offense was unlikely to have been 
discovered otherwise, a downward departure may be warranted. For 
example, a downward departure under this section might be considered 
where a defendant, motivated by remorse, discloses an offense that 
otherwise would have remained undiscovered. This provision does not 
apply where the motivating factor is the defendant's knowledge that 
discovery of the offense is likely or imminent, or where the 
defendant's disclosure occurs in connection with the investigation or 
prosecution of the defendant for related conduct.

Sec.  5K2.17. Semiautomatic Firearms Capable of Accepting Large 
Capacity Magazine (Policy Statement)

    If the defendant possessed a semiautomatic firearm capable of 
accepting a large capacity magazine in connection with a crime of 
violence or controlled substance offense, an upward departure may be 
warranted. A `semiautomatic firearm capable of accepting a large 
capacity magazine' means a semiautomatic firearm that has the ability 
to fire many rounds without reloading because at the time of the 
offense (1) the firearm had attached to it a magazine or similar device 
that could accept more than 15 rounds of ammunition; or (2) a magazine 
or similar device that could accept more than 15 rounds of ammunition 
was in close proximity to the firearm. The extent of any increase 
should depend upon the degree to which the nature of the weapon 
increased the likelihood of death or injury in the circumstances of the 
particular case.
Commentary
    Application Note:
    1. `Crime of violence' and `controlled substance offense' are 
defined in Sec.  4B1.2 (Definitions of Terms Used in Section 4B1.1).

Sec.  5K2.18. Violent Street Gangs (Policy Statement)

    If the defendant is subject to an enhanced sentence under 18 U.S.C. 
521 (pertaining to criminal street gangs), an upward departure may be 
warranted. The purpose of this departure provision is to enhance the 
sentences of defendants who participate in groups, clubs, 
organizations, or associations that use violence to further their ends. 
It is to be noted that there may be cases in which 18 U.S.C. 521 
applies, but no violence is established. In such cases, it is expected 
that the guidelines will account adequately for the conduct and, 
consequently, this departure provision would not apply.

Sec.  5K2.20. Aberrant Behavior (Policy Statement)

    (a) In General.--Except where a defendant is convicted of an 
offense involving a minor victim under section 1201, an offense under 
section 1591, or an offense under chapter 71, 109A, 110, or 117, of 
title 18, United States Code, a downward departure may be warranted in 
an exceptional case if (1) the defendant's criminal conduct meets the 
requirements of subsection (b); and (2) the departure is not prohibited 
under subsection (c).
    (b) Requirements.--The court may depart downward under this policy 
statement only if the defendant committed a single criminal occurrence 
or single criminal transaction that (1) was committed without 
significant planning; (2) was of limited duration; and (3) represents a 
marked deviation by the defendant from an otherwise law-abiding life.
    (c) Prohibitions Based on the Presence of Certain Circumstances.--
The court may not depart downward pursuant to this policy statement if 
any of the following circumstances are present:
    (1) The offense involved serious bodily injury or death.
    (2) The defendant discharged a firearm or otherwise used a firearm 
or a dangerous weapon.
    (3) The instant offense of conviction is a serious drug trafficking 
offense.
    (4) The defendant has either of the following: (A) more than one 
criminal history point, as determined under Chapter Four (Criminal 
History and Criminal Livelihood) before application of subsection (b) 
of Sec.  4A1.3 (Departures Based on Inadequacy of Criminal History 
Category); or (B) a prior federal or state felony conviction, or any 
other significant prior criminal behavior, regardless of whether the 
conviction or significant prior criminal behavior is countable under 
Chapter Four.
Commentary
    Application Notes:
    1. Definitions.--For purposes of this policy statement:
    `Dangerous weapon,' `firearm,' `otherwise used,' and `serious 
bodily injury' have the meaning given those terms in the Commentary to 
Sec.  1B1.1 (Application Instructions).

[[Page 19852]]

    `Serious drug trafficking offense' means any controlled substance 
offense under title 21, United States Code, other than simple 
possession under 21 U.S.C. 844, that provides for a mandatory minimum 
term of imprisonment of five years or greater, regardless of whether 
the defendant meets the criteria of Sec.  5C1.2 (Limitation on 
Applicability of Statutory Mandatory Minimum Sentences in Certain 
Cases).
    2. Repetitious or Significant, Planned Behavior.--Repetitious or 
significant, planned behavior does not meet the requirements of 
subsection (b). For example, a fraud scheme generally would not meet 
such requirements because such a scheme usually involves repetitive 
acts, rather than a single occurrence or single criminal transaction, 
and significant planning.
    3. Other Circumstances to Consider.--In determining whether the 
court should depart under this policy statement, the court may consider 
the defendant's (A) mental and emotional conditions; (B) employment 
record; (C) record of prior good works; (D) motivation for committing 
the offense; and (E) efforts to mitigate the effects of the offense.
    Background: Section 401(b)(3) of Public Law 108-21 directly amended 
subsection (a) of this policy statement, effective April 30, 2003.

Sec.  5K2.21. Dismissed and Uncharged Conduct (Policy Statement)

    The court may depart upward to reflect the actual seriousness of 
the offense based on conduct (1) underlying a charge dismissed as part 
of a plea agreement in the case, or underlying a potential charge not 
pursued in the case as part of a plea agreement or for any other 
reason; and (2) that did not enter into the determination of the 
applicable guideline range.

Sec.  5K2.22. Specific Offender Characteristics as Grounds for Downward 
Departure in Child Crimes and Sexual Offenses (Policy Statement)

    In sentencing a defendant convicted of an offense involving a minor 
victim under section 1201, an offense under section 1591, or an offense 
under chapter 71, 109A, 110, or 117, of title 18, United States Code:
    (1) Age may be a reason to depart downward only if and to the 
extent permitted by Sec.  5H1.1.
    (2) An extraordinary physical impairment may be a reason to depart 
downward only if and to the extent permitted by Sec.  5H1.4.
    (3) Drug, alcohol, or gambling dependence or abuse is not a reason 
to depart downward.
Commentary
    Background: Section 401(b)(2) of Public Law 108-21 directly amended 
Chapter Five, Part K, to add this policy statement, effective April 30, 
2003.

Sec.  5K2.23. Discharged Terms of Imprisonment (Policy Statement)

    A downward departure may be appropriate if the defendant (1) has 
completed serving a term of imprisonment; and (2) subsection (b) of 
Sec.  5G1.3 (Imposition of a Sentence on a Defendant Subject to 
Undischarged Term of Imprisonment or Anticipated Term of Imprisonment) 
would have provided an adjustment had that completed term of 
imprisonment been undischarged at the time of sentencing for the 
instant offense. Any such departure should be fashioned to achieve a 
reasonable punishment for the instant offense.

Sec.  5K2.24. Commission of Offense While Wearing or Displaying 
Unauthorized or Counterfeit Insignia or Uniform (Policy Statement)

    If, during the commission of the offense, the defendant wore or 
displayed an official, or counterfeit official, insignia or uniform 
received in violation of 18 U.S.C. 716, an upward departure may be 
warranted.
Commentary
    Application Note:
    1. Definition.--For purposes of this policy statement, `official 
insignia or uniform' has the meaning given that term in 18 U.S.C. 
716(c)(3).
    3. Early Disposition Programs

Sec.  5K3.1. Early Disposition Programs (Policy Statement)

    Upon motion of the Government, the court may depart downward not 
more than 4 levels pursuant to an early disposition program authorized 
by the Attorney General of the United States and the United States 
Attorney for the district in which the court resides.
Commentary
    Background: This policy statement implements the directive to the 
Commission in section 401(m)(2)(B) of the Prosecutorial Remedies and 
Other Tools to end the Exploitation of Children Today Act of 2003 (the 
`PROTECT Act', Public Law 108-21).''.
    Chapter Six, Part A is amended by striking Sec.  6A1.4 and its 
accompanying commentary in its entirety as follows:

``Sec.  6A1.4. Notice of Possible Departure (Policy Statement)

    Before the court may depart from the applicable sentencing 
guideline range on a ground not identified for departure either in the 
presentence report or in a party's prehearing submission, the court 
must give the parties reasonable notice that it is contemplating such a 
departure. The notice must specify any ground on which the court is 
contemplating a departure. Rule 32(h), Fed. R. Crim. P.
Commentary
    Background: The Federal Rules of Criminal Procedure were amended, 
effective December 1, 2002, to incorporate into Rule 32(h) the holding 
in Burns v. United States, 501 U.S. 129, 138-39 (1991). This policy 
statement parallels Rule 32(h), Fed. R. Crim. P.''.
    Chapter Six, Part B is amended in the Introductory Commentary by 
striking ``The policy statements also ensure that the basis for any 
judicial decision to depart from the guidelines will be explained on 
the record.''.
    The Commentary to Sec.  6B1.2 is amended--
    in the paragraph that begins ``Similarly, the court'' by striking 
``As set forth in subsection (d) of Sec.  5K2.0 (Grounds for 
Departure), however, the court may not depart below the applicable 
guideline range merely because of the defendant's decision to plead 
guilty to the offense or to enter a plea agreement with respect to the 
offense.'';
    and in the paragraph that begins ``The second paragraph of 
subsection (a)'' by striking ``Section 5K2.21 (Dismissed and Uncharged 
Conduct) addresses the use, as a basis for upward departure, of conduct 
underlying a charge dismissed as part of a plea agreement in the case, 
or underlying a potential charge not pursued in the case as part of a 
plea agreement.''.
    The Commentary to Sec.  7B1.4 captioned ``Application Notes,'' as 
amended by Amendment 4 of this document, is further amended--
    by striking Notes 2, 3, and 4 as follows:
    ``2. Departure from the applicable range of imprisonment in the 
Probation Revocation Table may be warranted when the court departed 
from the applicable range for reasons set forth in Sec.  4A1.3 
(Departures Based on Inadequacy of Criminal History Category) in 
originally imposing the sentence that resulted in probation. 
Additionally, an upward departure may be warranted when a defendant, 
subsequent to the federal sentence resulting in probation, has been 
sentenced for an offense that is not the basis of the violation 
proceeding.
    3. In the case of a Grade C violation that is associated with a 
high risk of new felonious conduct (e.g., a defendant, on probation for 
conviction

[[Page 19853]]

of criminal sexual abuse, violates the condition that the defendant not 
associate with children by loitering near a schoolyard), an upward 
departure may be warranted.
    4. Where the original sentence was the result of a downward 
departure (e.g., as a reward for substantial assistance), or a charge 
reduction that resulted in a sentence below the guideline range 
applicable to the defendant's underlying conduct, an upward departure 
may be warranted.'';
    and by redesignating Notes 5 and 6 as Notes 2 and 3, respectively.
    The Commentary to Sec.  7C1.5 captioned ``Application Notes,'' as 
added by Amendment 4 of this document, is amended--
    by striking Notes 2, 3, and 4 as follows:
    ``2. Departure from the applicable range of imprisonment in the 
Supervised Release Revocation Table may be warranted when the court 
departed from the applicable range for reasons set forth in Sec.  4A1.3 
(Departures Based on Inadequacy of Criminal History Category) in 
originally imposing the sentence that resulted in supervised release. 
Additionally, an upward departure may be warranted when a defendant, 
subsequent to the federal sentence resulting in supervised release, has 
been sentenced for an offense that is not the basis of the violation 
proceeding.
    3. In the case of a Grade C violation that is associated with a 
high risk of new felonious conduct (e.g., a defendant, under supervised 
release for conviction of criminal sexual abuse, violates the condition 
that the defendant not associate with children by loitering near a 
schoolyard), an upward departure may be warranted.
    4. Where the original sentence was the result of a downward 
departure (e.g., as a reward for substantial assistance), or a charge 
reduction that resulted in a sentence below the guideline range 
applicable to the defendant's underlying conduct, an upward departure 
may be warranted.'';
    and by redesignating Notes 5 and 6 as Notes 2 and 3, respectively.
    Section 8A1.2(b) is amended--
    in paragraph (4) by striking ``For grounds for departure from the 
applicable guideline fine range, refer to Part C, Subpart 4 (Departures 
from the Guideline Fine Range)'' and inserting ``Determine whether a 
sentence below the otherwise applicable guideline range is appropriate 
upon motion of the government pursuant to Sec.  8C4.1 (Substantial 
Assistance to Authorities--Organizations (Policy Statement))'';
    and by inserting at the end the following new paragraph (5):
    ``(5) Consider as a whole the additional factors identified in 18 
U.S.C. 3553(a) to determine the sentence that is sufficient, but not 
greater than necessary, to comply with the purposes set forth in 18 
U.S.C. 3553(a)(2). See 18 U.S.C. 3553(a).''.
    The Commentary to Sec.  8A1.2 captioned ``Application Notes'' is 
amended in Note 2 by striking ``and E (Acceptance of Responsibility)'' 
and inserting ``E (Acceptance of Responsibility), and F (Early 
Disposition Programs)''.
    The Commentary to Sec.  8C2.3 captioned ``Application Notes'' is 
amended in Note 2 by striking ``and E (Acceptance of Responsibility)'' 
and inserting ``E (Acceptance of Responsibility), and F (Early 
Disposition Programs)''.
    The Commentary to Sec.  8C2.8 captioned ``Application Notes'' is 
amended in Note 5 by striking ``In a case involving a pattern of 
illegality, an upward departure may be warranted.''.
    The Commentary to Sec.  8C2.8 captioned ``Background'' is amended 
by striking ``In unusual cases, factors listed in this section may 
provide a basis for departure.''.
    Chapter Eight, Part C, Subpart 4 is amended--
    in the heading by striking ``DEPARTURES FROM THE GUIDELINE FINE 
RANGE'' and inserting ``SUBSTANTIAL ASSISTANCE TO AUTHORITIES'';
    and by striking the Introductory Commentary as follows:
``Introductory Commentary
    The statutory provisions governing departures are set forth in 18 
U.S.C. 3553(b). Departure may be warranted if the court finds `that 
there exists an aggravating or mitigating circumstance of a kind, or to 
a degree, not adequately taken into consideration by the Sentencing 
Commission in formulating the guidelines that should result in a 
sentence different from that described.' This subpart sets forth 
certain factors that, in connection with certain offenses, may not have 
been adequately taken into consideration by the guidelines. In deciding 
whether departure is warranted, the court should consider the extent to 
which that factor is adequately taken into consideration by the 
guidelines and the relative importance or substantiality of that factor 
in the particular case.
    To the extent that any policy statement from Chapter Five, Part K 
(Departures) is relevant to the organization, a departure from the 
applicable guideline fine range may be warranted. Some factors listed 
in Chapter Five, Part K that are particularly applicable to 
organizations are listed in this subpart. Other factors listed in 
Chapter Five, Part K may be applicable in particular cases. While this 
subpart lists factors that the Commission believes may constitute 
grounds for departure, the list is not exhaustive.''.
    Section 8C4.1(a) is amended by striking ``the court may depart from 
the guidelines'' and inserting ``a fine that is below the otherwise 
applicable guideline fine range may be appropriate''.
    The Commentary to Sec.  8C4.1 captioned ``Application Note'' is 
amended in Note 1 by striking ``Departure under this section'' and 
inserting ``Fine reduction under this section''.
    Chapter Eight, Part C is further amended by striking Sec. Sec.  
8C4.2 through 8C4.11 in their entirety as follows:

``Sec.  8C4.2. Risk of Death or Bodily Injury (Policy Statement)

    If the offense resulted in death or bodily injury, or involved a 
foreseeable risk of death or bodily injury, an upward departure may be 
warranted. The extent of any such departure should depend, among other 
factors, on the nature of the harm and the extent to which the harm was 
intended or knowingly risked, and the extent to which such harm or risk 
is taken into account within the applicable guideline fine range.

Sec.  8C4.3. Threat to National Security (Policy Statement)

    If the offense constituted a threat to national security, an upward 
departure may be warranted.

Sec.  8C4.4. Threat to the Environment (Policy Statement)

    If the offense presented a threat to the environment, an upward 
departure may be warranted.

Sec.  8C4.5. Threat to a Market (Policy Statement)

    If the offense presented a risk to the integrity or continued 
existence of a market, an upward departure may be warranted. This 
section is applicable to both private markets (e.g., a financial 
market, a commodities market, or a market for consumer goods) and 
public markets (e.g., government contracting).

Sec.  8C4.6. Official Corruption (Policy Statement)

    If the organization, in connection with the offense, bribed or 
unlawfully gave a gratuity to a public official, or attempted or 
conspired to bribe or unlawfully give a gratuity to a public official, 
an upward departure may be warranted.

Sec.  8C4.7. Public Entity (Policy Statement)


[[Page 19854]]


    If the organization is a public entity, a downward departure may be 
warranted.

Sec.  8C4.8. Members or Beneficiaries of the Organization as Victims 
(Policy Statement)

    If the members or beneficiaries, other than shareholders, of the 
organization are direct victims of the offense, a downward departure 
may be warranted. If the members or beneficiaries of an organization 
are direct victims of the offense, imposing a fine upon the 
organization may increase the burden upon the victims of the offense 
without achieving a deterrent effect. In such cases, a fine may not be 
appropriate. For example, departure may be appropriate if a labor union 
is convicted of embezzlement of pension funds.

Sec.  8C4.9. Remedial Costs that Greatly Exceed Gain (Policy Statement)

    If the organization has paid or has agreed to pay remedial costs 
arising from the offense that greatly exceed the gain that the 
organization received from the offense, a downward departure may be 
warranted. In such a case, a substantial fine may not be necessary in 
order to achieve adequate punishment and deterrence. In deciding 
whether departure is appropriate, the court should consider the level 
and extent of substantial authority personnel involvement in the 
offense and the degree to which the loss exceeds the gain. If an 
individual within high-level personnel was involved in the offense, a 
departure would not be appropriate under this section. The lower the 
level and the more limited the extent of substantial authority 
personnel involvement in the offense, and the greater the degree to 
which remedial costs exceeded or will exceed gain, the less will be the 
need for a substantial fine to achieve adequate punishment and 
deterrence.

Sec.  8C4.10. Mandatory Programs to Prevent and Detect Violations of 
Law (Policy Statement)

    If the organization's culpability score is reduced under Sec.  
8C2.5(f) (Effective Compliance and Ethics Program) and the organization 
had implemented its program in response to a court order or 
administrative order specifically directed at the organization, an 
upward departure may be warranted to offset, in part or in whole, such 
reduction.
    Similarly, if, at the time of the instant offense, the organization 
was required by law to have an effective compliance and ethics program, 
but the organization did not have such a program, an upward departure 
may be warranted.

Sec.  8C4.11. Exceptional Organizational Culpability (Policy Statement)

    If the organization's culpability score is greater than 10, an 
upward departure may be appropriate.
    If no individual within substantial authority personnel 
participated in, condoned, or was willfully ignorant of the offense; 
the organization at the time of the offense had an effective program to 
prevent and detect violations of law; and the base fine is determined 
under Sec.  8C2.4(a)(1), Sec.  8C2.4(a)(3), or a special instruction 
for fines in Chapter Two (Offense Conduct), a downward departure may be 
warranted. In a case meeting these criteria, the court may find that 
the organization had exceptionally low culpability and therefore a fine 
based on loss, offense level, or a special Chapter Two instruction 
results in a guideline fine range higher than necessary to achieve the 
purposes of sentencing. Nevertheless, such fine should not be lower 
than if determined under Sec.  8C2.4(a)(2).''.
    Reason for Amendment: This amendment is a result of the 
Commission's exploration of ways to simplify the guidelines and to 
reduce tension between 18 U.S.C. 3553(a) and the Guidelines Manual. 
Specifically, the amendment removes one of the steps in the current 
three-step sentencing process, which requires courts to consider 
departures provided for within the Guidelines Manual. As amended, the 
Guidelines Manual now provides a two-step process whereby the 
sentencing court must first correctly calculate the applicable 
guideline range as the ``starting point and initial benchmark'' and 
then must determine an appropriate sentence upon consideration of all 
the factors set forth by Congress in 18 U.S.C. 3553(a). See Gall v. 
United States, 552 U.S. 38, 49-51 (2007).
    In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court 
held that the portion of 18 U.S.C. 3553 making the guidelines mandatory 
was unconstitutional. The Court has further explained that the 
guideline range, which reflects the defendant's criminal conduct and 
the defendant's criminal history, should continue to be ``the starting 
point and the initial benchmark'' in sentencing proceedings. See Gall, 
552 U.S. at 49; see also Peugh v. United States, 569 U.S. 530 (2013) 
(noting that ``the post-Booker federal sentencing system adopted 
procedural measures that make the guidelines the `lodestone' of 
sentencing''). After determining the kinds of sentence and guideline 
range provided for by the Guidelines, however, the court must also 
fully consider the factors in 18 U.S.C. 3553(a), including, among other 
factors, ``the nature and circumstances of the offense and the history 
and characteristics of the defendant,'' to determine a sentence that is 
sufficient but not greater than necessary. See Rita v. United States, 
551 U.S. 338, 347-48 (2007).
    In the wake of Booker and subsequent cases, the Guidelines Manual 
provided a three-step process for determining the sentence to be 
imposed, which is reflected in the three main subdivisions of Sec.  
1B1.1 (Application Instructions) (subsections (a) through (c)). The 
three-step process can be summarized as follows: (1) the court 
calculates the applicable guideline range and determines the sentencing 
requirements and options related to probation, imprisonment, 
supervision conditions, fines, and restitution; (2) the court considers 
policy statements and guideline commentary relating to departures and 
specific personal characteristics that might warrant consideration in 
imposing the sentence; and (3) the court considers the applicable 
factors in 18 U.S.C. 3553(a) in deciding what sentence to impose 
(whether within the applicable guideline range, or whether as a 
departure or as a variance (or as both)).
    In the years since Booker, the frequency of departures has steadily 
declined with courts relying to a greater extent on variances in a 
manner consistent with the statutory requirements in section 3553(a). 
The shift away from departures deepened as a direct result of the 
holding in Irizarry v. United States, 553 U.S. 708 (2008), in which the 
Court held that the ``reasonable notice'' requirement in Rule 32(h) of 
the Federal Rules of Criminal Procedure does not apply to variances.
    To better align the guidelines to practices under current 
sentencing law and to acknowledge the growing shift away from the use 
of departures, the amendment revises the guidelines in multiple ways. 
First, the amendment moves the ``Original Introduction to the 
Guidelines Manual'' from Chapter One, Part A to an Appendix of the 
Guidelines Manual as historical background. Second, the amendment 
revises the application instructions provided in Sec.  1B1.1 to reflect 
the simplification of the three-step process into two steps. At Step 
One, courts are to calculate the guideline range and determine the 
sentencing requirements and options under the Guidelines Manual. See 
Sec.  1B1.1(a). At Step Two, courts are to consider the section 3553(a) 
factors. See Sec.  1B1.1(b). Section 1B1.1(b) expressly

[[Page 19855]]

lists the section 3553(a) factors the court must consider. Other 
conforming changes are made throughout Chapter One. For example, Sec.  
1B1.10 (Reduction in Term of Imprisonment as a Result of Amended 
Guideline Range (Policy Statement)) is amended to reflect the removal 
of departures. The Commission does not intend this conforming amendment 
to substantively change the operation of the calculation of the amended 
guideline range in Sec.  1B1.10.
    In addition, the amendment seeks to better address the distinction 
between the statutory limitations on the Commission's ability to 
consider certain offense characteristics and individual circumstances 
in recommending a term of imprisonment or length of imprisonment, and 
the requirement that the court consider a broad range of individual and 
offense characteristics in determining an appropriate sentence pursuant 
to 18 U.S.C. 3553(a). More specifically, the amendment revises Sec.  
1A3.1 (Authority), which sets forth the Commission's authority in 
developing the guidelines. First, the provision is redesignated as 
Sec.  1A1.1 and, for clarity, is retitled as ``Commission's 
Authority.'' Second, in addition to referring to 28 U.S.C. 994(a) as 
the basis of the Commission's authority to promulgate guidelines, 
policy statements, and commentary, the provision explains how the 
Commission has complied with the requirements placed on it by Congress, 
noting what is not considered by the Commission in formulating the 
guidelines. This ensures that the Commission has addressed the 
provisions of sections 994(c), (d), and (e).
    A new background commentary to this section explains that the 
requirements and limitations imposed upon the Commission by 28 U.S.C. 
994 do not apply to sentencing courts. Instead, the factors set forth 
by Congress in 18 U.S.C. 3553(a) ``permit a sentencing court to 
consider the `widest possible breadth of information' about a defendant 
ensuring the court is in `possession of the fullest information 
possible concerning the defendant's life and characteristics.' '' See 
Pepper v. United States, 562 U.S. 476, 488 (2011); see also Concepcion 
v. United States, 597 U.S. 481, 493 (2022). The new background 
commentary concludes by noting that the application instructions set 
forth in Sec.  1B1.1 are structured to reflect a two-step process 
whereby the sentencing court must first correctly calculate the 
applicable guideline range as the ``starting point and initial 
benchmark'' and then must determine an appropriate sentence upon 
consideration of all the factors set forth by Congress in 18 U.S.C. 
3553(a).
    Consistent with the revised approach, the amendment deletes most 
departures previously provided throughout the Guidelines Manual. 
Changes are made throughout the Guidelines Manual by deleting the 
departure provisions contained in commentary to various guidelines. 
However, some provisions, originally promulgated in response to 
congressional directives, are retained in another form. First, 
Application Note 1 of Sec.  2X7.2 (Submersible and Semi-Submersible 
Vessels) is revised to remove the language pertaining to a departure 
and instead indicates that the listed factors, which were identified by 
Congress in section 103 of Public Law 110-407, may warrant 
consideration in imposing a sentence. Similarly, Application Note 2 of 
Sec.  1B1.9 (Class B or C Misdemeanors and Infractions), which 
addresses Class B and C misdemeanors and infractions, is revised to add 
a reference to the aggravating nature of committing an offense while 
wearing or displaying insignia and uniform in violation of 18 U.S.C. 
716 (a class B misdemeanor). This guidance was previously set forth in 
a departure provision at Sec.  5K2.24 (Commission of Offense While 
Wearing or Displaying Unauthorized or Counterfeit Insignia or Uniform).
    The amendment also makes several changes to Chapter Five. The 
chapter is retitled ``Determining the Sentencing Range and Options 
Under the Guidelines'' to focus on the rules pertaining to the 
calculation of the guideline range, and the introductory commentary is 
revised to better reflect the chapter's purpose by noting that ``a 
sentence is within the guidelines if it complies with each applicable 
section of this chapter.'' All provisions previously contained in 
Chapter Five, Part H (Specific Offender Characteristics), and most of 
the provisions in Chapter Five, Part K (Departures), are deleted. Only 
the provisions pertaining to substantial assistance are retained under 
Sec.  5K1.1, and the provision pertaining to early disposition programs 
is moved from Sec.  5K3.1 to Chapter Three, Part F.
    Chapter Five is also amended at Sec.  5B1.1 (Imposition of a Term 
of Probation), Sec.  5D1.1 (Imposition of a Term of Supervised 
Release), and Sec.  5D1.3 (Conditions of Supervised Release) to 
emphasize the factors courts are statutorily required to consider in 
determining the conditions of probation and supervised release. The 
commentary is further revised to retain factors that the Commission had 
previously identified as relevant in Chapter Five, Part H pursuant to 
the congressional guidance provided to the Commission in 28 U.S.C. 
994(d) and (e).
    Changes are also made to Sec.  5G1.3 (Imposition of a Sentence on a 
Defendant Subject to an Undischarged Term of Imprisonment or 
Anticipated State Term of Imprisonment) in response to comment urging 
the Commission to retain the guidance regarding certain undischarged or 
discharged terms of imprisonment currently contained in Sec.  5G1.3, 
Application Note 4(E), and Sec.  5K2.23 (Discharged Terms of 
Imprisonment (Policy Statement)). These procedural aspects of imposing 
a sentence are particularly complex and at times confusing for courts 
given the intersection of a court's authority to sentence and the 
Bureau of Prisons' authority to execute that sentence. The amendment 
thus makes several changes to the commentary in Sec.  5G1.3 to ensure 
courts continue to receive guidance on the treatment of undischarged 
and discharged sentences not otherwise addressed in the guideline. 
First, a new application note is added at Application Note 4(E), which 
would provide that where the court accounts for an undischarged term of 
imprisonment covered by subsection (d), the court should clearly state 
that the sentence was imposed pursuant to 18 U.S.C. 3553(a), rather 
than as a credit for time served, to avoid confusion with the Federal 
Bureau of Prisons' exclusive authority under 18 U.S.C. 3585(b) to grant 
credit for time served under certain circumstances. Similarly, a new 
Application Note 5 would provide similar guidance on the court's 
authority to consider an already discharged term of imprisonment that 
would, if undischarged, qualify for consideration under Sec.  5G1.3(b). 
This new Application Note would preserve the concept previously 
addressed in Sec.  5K2.23.
    Finally, in conjunction with the amendment, the Commission plans to 
compile the deleted departure provisions, as they were last provided in 
the 2024 edition of the Guidelines Manual, in a new Part III of 
Appendix B. At the time these departure provisions were promulgated, 
they represented grounds that the Commission expressly authorized in 
the Guidelines Manual as a basis for a sentence outside of the 
otherwise applicable guideline range. These provisions, which were 
based on various circumstances of the offense, specific personal 
characteristics, and certain procedural history of the case, reflected 
the Commission's determination that such circumstances

[[Page 19856]]

were outside of the heartland of offenses addressed by the guidelines 
and warranted the court's consideration in imposing sentence. Because 
the Commission envisions this amendment to be outcome neutral, the 
introduction to the compilation of deleted departure provisions 
explains that the removal of departures from the Guidelines Manual does 
not reflect a determination by the Commission that the rationale 
underlying the deleted departure provisions is no longer informative 
and does not serve as a limit to the information courts may consider in 
imposing a sentence. It is the Commission's intent that judges who 
would have relied upon facts previously identified as a basis for a 
departure will continue to have the authority to rely upon such facts, 
or any other relevant factors, to impose a sentence outside of the 
applicable guideline range as a variance under 18 U.S.C. 3553(a).

(2) Request for Comment on Possible Retroactive Application of Parts A 
and B of Amendment 1, and Subparts 1 and 2 of Part A of Amendment 2

    On April 30, 2025, the Commission submitted to the Congress 
amendments to the sentencing guidelines, policy statements, and 
official commentary, which become effective on November 1, 2025, 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).
    The following amendments may have the effect of lowering guidelines 
ranges: Part A (Circuit Conflict Concerning ``Physically Restrained'' 
Enhancements) and Part B (Circuit Conflict Concerning the Meaning of 
``Intervening Arrest'' in Sec.  4A1.2(a)(2)) of Amendment 1; and 
Subpart 1 (Mitigating Role Provisions at Sec.  2D1.1(a)(5)) and Subpart 
2 (Special Instruction Relating to Sec.  3B1.2) of Amendment 2. The 
Commission intends to consider whether, pursuant to 18 U.S.C. 
3582(c)(2) and 28 U.S.C. 994(u), any or all of these amendments 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 any or all 
the subparts or parts of the amendments listed above available for 
retroactive application. To help inform public comment, the 
retroactivity impact analyses of these amendments 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 in Sec.  
1B1.10(d) as changes that may be applied retroactively to previously 
sentenced defendants any or all of the following subparts and parts of 
these amendments: Part A (Circuit Conflict Concerning ``Physically 
Restrained'' Enhancements) and Part B (Circuit Conflict Concerning the 
Meaning of ``Intervening Arrest'' in Sec.  4A1.2(a)(2)) of Amendment 1; 
and Subpart 1 (Mitigating Role Provisions at Sec.  2D1.1(a)(5)) and 
Subpart 2 (Special Instruction Relating to Sec.  3B1.2) of Part A of 
Amendment 2. For each subpart and part of the amendments listed above, 
the Commission requests comment on whether any such subpart or part 
should be listed in Sec.  1B1.10(d) as an amendment that may be applied 
retroactively.
    If the Commission does list any or all the subparts or parts of the 
amendments listed above 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. 2025-07785 Filed 5-8-25; 8:45 am]
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