United States Sentencing Commission 2015 – Federal Register Recent Federal Regulation Documents

On August 17, 2015, the United States Sentencing Commission published a notice in the Federal Register (80 FR 49314) requesting comment regarding a proposed amendment to the sentencing guidelines and commentary. The proposed amendment and issues for comment published in the notice were as follows: A proposed amendment to revise the ``crime of violence'' and ``drug trafficking offense'' definitions in the career offender guideline and the illegal reentry guideline, including (A) A proposed amendment to Sec. 4B1.2 (Definitions of Terms Used in Section 4B1.1) to delete the residual clause and revise the list of enumerated offenses in the ``crime of violence'' definition, (B) a proposed amendment to Sec. 4B1.2 to implement an additional requirement related to the state felony classification in determining whether an offense qualifies as a felony under Sec. 4B1.2, and (C) corresponding changes to the ``crime of violence'' and ``drug trafficking offense'' definitions in Sec. 2L1.2 (Unlawfully Entering or Remaining in the United States) to bring them more into parallel with the definitions at Sec. 4B1.2, and related issues for comment. The Commission further requested comment regarding retroactive application of the proposed amendment. The Commission is issuing this notice to advise the public that the period for public comment has been extended to November 25, 2015. The deadline was initially November 12, 2015.

As part of its statutory authority and responsibility to analyze sentencing issues, including operation of the federal sentencing guidelines, and in accordance with Rule 5.2 of its Rules of Practice and Procedure, the United States Sentencing Commission is seeking comment on possible priority policy issues for the amendment cycle ending May 1, 2016.

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; one of which is set forth independent of any proposed amendment; 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 proposed amendment to make certain technical changes to the Guidelines Manual, including (A) technical changes to reflect the editorial reclassification of certain sections of the United States Code, (B) stylistic and technical changes to the Commentary following Sec. 3D1.5 (Determining the Total Punishment) captioned ``Illustrations of the Operation of the Multiple-Count Rules'' to better reflect its purpose as a concluding commentary to Part D of Chapter Three, and (C) clerical changes to Sec. 2D1.11 (Unlawful Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy) and to the commentary of other guidelines; (2) a proposed amendment to Sec. 4A1.2 (Definitions and Instructions for Computing Criminal History) to respond to a circuit conflict regarding the meaning of the ``single sentence'' rule and its implications for the career offender guideline and other guidelines that use predicate offenses, and related issues for comment; (3) a proposed amendment to Sec. 1B1.3 (Relevant Conduct (Factors that Determine the Guideline Range)) to provide more guidance on the use of ``jointly undertaken criminal activity'' in determining relevant conduct under the guidelines, and a related issue for comment on whether the Commission should make changes for policy reasons to the operation of ``jointly undertaken criminal activity''; (4) a proposed amendment to revise the monetary tables throughout the Guidelines Manual, including options for amending the monetary tables in the guidelines to adjust for inflation, conforming changes to other guidelines that refer to monetary tables, and related issues for comment; (5) a proposed amendment to Sec. 3B1.2 (Mitigating Role) to respond to a circuit conflict regarding what determining the ``average participant'' requires, to revise the Commentary to state that certain individuals who perform limited functions in criminal activity may receive a mitigating role adjustment, and to provide a non-exhaustive list of factors for the court to consider in determining whether to apply a mitigating role adjustment and the amount of the adjustment, and a related issue for comment on the application of the mitigating role adjustment; (6) a detailed request for comment on offenses in which controlled substances are colored, packaged, or flavored in ways to appear to be designed to attract use by children; (7) a proposed amendment to Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) to address the new statutory penalty structure for offenses involving hydrocodone and hydrocodone combination products in light of recent administrative actions by the Food and Drug Administration and the Drug Enforcement Administration, and a related issue for comment; and (8) a proposed amendment to Sec. 2B1.1 (Theft, Property, Destruction, and Fraud), including (A) options to revise the definition of ``intended loss'' at Sec. 2B1.1, comment. (n.3(A)(ii)), (B) options to address the impact of the victims table in Sec. 2B1.1(b)(2), (C) a proposed amendment to revise the specific offense characteristic for sophisticated means in subsection (b)(10)(C), and (D) a proposed amendment to address offenses involving fraud on the market and related offenses, and related issues for comment.