United States Sentencing Commission January 15, 2016 – Federal Register Recent Federal Regulation Documents

Pursuant to section 994(a), (o), and (p) of title 28, United States Code, the United States Sentencing Commission is considering promulgating certain amendments to the sentencing guidelines, policy statements, and commentary. This notice sets forth the proposed amendments and, for each proposed amendment, a synopsis of the issues addressed by that amendment. This notice also sets forth a number of issues for comment, some of which are set forth together with the proposed amendments, and one of which (regarding retroactive application of proposed amendments) is set forth in the SUPPLEMENTARY INFORMATION portion of this notice. The proposed amendments and issues for comment in this notice are as follows: (1) A multi-part proposed amendment to the Guidelines Manual to respond to recently enacted legislation and miscellaneous guideline issues, including (A) revisions to Appendix A (Statutory Index) to respond to new offenses established by the Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act (USA FREEDOM Act) of 2015, Public Law 114-23 (June 2, 2015), and related issues for comment; (B) revisions to Appendix A (Statutory Index) to respond to changes made by the Bipartisan Budget Act of 2015, Public Law 114-74 (Nov. 2, 2015), to existing criminal statutes, and related issues for comment; (C) a revision to Appendix A (Statutory Index) to reference offenses under 18 U.S.C. 1715 (Firearms as nonmailable items) to Sec. 2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) and a revision to Sec. 2K2.1 to establish a base offense level for such offenses, and a related issue for comment; and (D) a technical amendment to the Background Commentary to Sec. 2T1.6 (Failing to Collect or Truthfully Account for and Pay Over Tax); (2) a two-part proposed amendment to the policy statement pertaining to ``compassionate release,'' Sec. 1B1.13 (Reduction in Term of Imprisonment as a Result of Motion by Director of Bureau of Prisons), including (A) a detailed request for comment on whether any changes should be made to the policy statement and (B) a proposed amendment illustrating one possible set of changes to the policy statement, i.e., to reflect the criteria set forth in the program statement used by the Bureau of Prisons; (3) a proposed amendment to Sec. Sec. 5B1.3 (Conditions of Probation) and 5D1.3 (Conditions of Supervised Release) to revise, clarify, and rearrange the provisions in the Guidelines Manual on conditions of probation and supervised release, and related issues for comment; (4) a proposed amendment to Sec. 2E3.1 (Gambling; Animal Fighting Offenses) to provide higher penalties for animal fighting offenses and to respond to two new offenses relating to attending an animal fighting venture that were established by section 12308 of the Agricultural Act of 2014, Public Law 113-79 (Feb. 7, 2014), and related issues for comment; (5) a proposed amendment to the child pornography guidelines, Sec. Sec. 2G2.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material; Custodian Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in Production), 2G2.2 (Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, Soliciting, or Advertising Material Involving the Sexual Exploitation of a Minor; Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic; Possessing Material Involving the Sexual Exploitation of a Minor), and 2G2.6 (Child Exploitation Enterprises), to address circuit conflicts and application issues that have arisen when applying these guidelines, including issues in (A) application of the vulnerable victim adjustment when the offense involves minors who are unusually young and vulnerable (such as infants or toddlers) and (B) application of the tiered distribution enhancement and, in particular, determining the appropriate tier of enhancement to apply when the offense involves a peer-to-peer file-sharing program or network, and related issues for comment; and (6) a multi-part proposed amendment to the guidelines for immigration offenses, including (A) revisions to Sec. 2L1.1 (Smuggling, Transporting, or Harboring an Unlawful Alien) to provide options for raising the base offense level for alien smuggling offenses and address offenses involving unaccompanied minors in alien smuggling offenses, and a related issue for comment, and (B) revisions to Sec. 2L1.2 (Unlawfully Entering or Remaining in the United States) to (i) generally reduce the use of the ``categorical approach'' in applying the guidelines by measuring the seriousness of a defendant's prior conviction by the length of the sentence imposed on the prior conviction rather than by the type of offense (e.g., ``crime of violence''); (ii) provide higher alternative base offense levels for defendants who have one or more prior convictions for illegal reentry offenses; (iii) provide a new tiered enhancement for defendants who engage in criminal conduct after reentering the United States; (iv) correspondingly reduce the existing tiered enhancement at subsection (b)(1) for defendants who had one or more prior convictions before being deported; and (v) related issues for comment.