[Federal Register Volume 60, Number 5 (Monday, January 9, 1995)]
[Notices]
[Pages 2430-2469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-271]
[[Page 2429]]
_______________________________________________________________________
Part II
United States Sentencing Commission
_______________________________________________________________________
Sentencing Guidelines for United States Courts; Notice of Hearing
Federal Register / Vol. 60, No. 5 / Monday, January 9, 1995 / Notices
[[Page 2430]]
UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice of proposed amendments to sentencing guidelines, policy
statements, and commentary. Request for public comment. Notice of
hearing.
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SUMMARY: The Commission is considering promulgating certain amendments
to the sentencing guidelines, policy statements, and commentary. The
proposed amendments and a synopsis of issues to be addressed are set
forth below. The Commission may report amendments to the Congress on or
before May 1, 1995. Comment is sought on all proposals, alternative
proposals, and any other aspect of the sentencing guidelines, policy
statements, and commentary.
DATES: The Commission has scheduled a public hearing on these proposed
amendments for March 14, 1995, at 9:30 a.m. in the Thurgood Marshall
Federal Judiciary Building, One Columbus Circle, NE., Washington, DC
20002-8002.
Persons interested in attending the public hearing should contact
the Commission at a later date to learn the room in which the hearing
will take place. Anyone wishing to testify at the public hearing should
notify Michael Courlander, Public Information Specialist, at (202) 273-
4590 by February 28, 1995.
Public comment, including written testimony for the hearing, should
be received by the Commission no later than March 7, 1995, to be
considered by the Commission in the promulgation of amendments due to
the Congress by May 1, 1995.
ADDRESSES: Public comment should be sent to: United States Sentencing
Commission, One Columbus Circle, NE., Suite 2-500, South Lobby,
Washington, DC 20002-8002, Attention: Public Information.
FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Information
Specialist, Telephone: (202) 273-4590.
SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is
an independent agency in the judicial branch of the United States
Government. The Commission is empowered under 28 U.S.C. Sec. 994(a) to
promulgate sentencing guidelines and policy statements for federal
courts. The statute further directs the Commission to review and revise
periodically guidelines previously promulgated and authorizes it to
submit guideline amendments to the Congress no later than the first day
of May each year. See 28 U.S.C. Sec. 994(o), (p).
Ordinarily, the Administrative Procedure Act rule-making
requirements are inapplicable to judicial agencies; however, 28 U.S.C.
Sec. 994(x) makes the Administrative Procedure Act rule-making
provisions of 5 U.S.C. Sec. 553 applicable to the promulgation of
sentencing guidelines by the Commission.
The proposed amendments are presented in one of three formats.
First, a number of the amendments are proposed as specific revisions of
a guideline, policy statement, or commentary. Second, for some
amendments, the Commission has published alternative methods of
addressing an issue, shown in brackets. Commentators are encouraged to
state their preference among listed alternatives or to suggest a new
alternative. Third, the Commission has highlighted certain issues for
comment and invites suggestions for specific amendment language.
Section 1B1.10 of the United States Sentencing Commission
Guidelines Manual sets forth the Commission's policy statement
regarding retroactivity of amended guideline ranges. Comment is
requested as to whether any of the proposed amendments should be made
retroactive under this policy statement.
Although the amendments below are specifically proposed for public
comment and possible submission to the Congress by May 1, 1995, the
Commission emphasizes that it welcomes comment on any aspect of the
sentencing guidelines, policy statements, and commentary, whether or
not the subject of a proposed amendment.
Publication of a proposed amendment or issue for comment signifies
only that at least three Commissioners consider the amendment or issue
worthy of comment by interested groups and individuals. Publication
should not be regarded as an indication that the Commission or any
individual Commissioner has formed a view on the merits of the proposed
amendment or issue.
Authority: 28 U.S.C. Sec. 994(a), (o), (p), (x).
Phyllis J. Newton,
Staff Director.
I. Amendments Relating to Congressional Directives to the Commission
and Other Statutory Changes
Chapter One, Part B (General Application Principles)
1. Issue for Comment: Section 40503 of the Violent Crime Control
and Law Enforcement Act of 1994 directs the Commission to conduct a
study and consider appropriate guideline amendments relating to
offenses in which an HIV-infected individual engages in sexual activity
with knowledge of his or her HIV infection status and with the intent
through such sexual activity to expose another to HIV. A report is to
be submitted to Congress by March 13, 1995. The Commission invites
comment on any aspect of this issue. In addition, the Commission
invites comment on whether the infectious bodily fluid of a person
should be defined expressly as a ``dangerous weapon.'' The Commission
further invites comment on whether the definitions relating to serious
bodily injury and permanent or life-threatening bodily injury should be
amended to expressly include infection by HIV-infected bodily fluid.
The Commission also invites comment on whether basing enhanced
penalties for willful sexual exposure to HIV will have any implications
for HIV testing behavior.
Chapter Two, Part A (Offenses Against the Person)
2. Issue for Comment: Section 170201 of the Violent Crime Control
and Law Enforcement Act of 1994 establishes a new offense with a five-
year statutory maximum for an assault against a person under the age of
16 years that results in substantial bodily injury (18 U.S.C.
Sec. 113(a)(7)). Substantial bodily injury is defined as ``bodily
injury that involves a temporary but substantial disfigurement or a
temporary but substantial loss or impairment of the function of any
bodily member, organ, or mental facility.'' The Commission invites
comment as to whether Sec. 2A2.3 provides an adequate penalty for a
violation of 18 U.S.C. Sec. 113(a)(7). If not, how and to what extent
should Sec. 2A2.3 be amended? For example, should the Commission amend
Sec. 2A2.3(a)(1) by deleting ``physical contact'' and inserting
``bodily injury,'' thus providing a base offense level of six for
bodily injury or weapon possession with a threat of use and a base
offense level of three for other cases? Should the
[[Page 2431]] Commission instead add a specific offense characteristic
for bodily injury or a specific offense characteristic if the defendant
is convicted of a violation of 18 U.S.C. Sec. 113(a)(7)? Should
Sec. 2A2.3 be amended by providing a cross reference to Sec. 2A2.2
(Aggravated Assault) to account for cases in which the underlying
conduct involves serious bodily injury or use of a weapon with intent
to cause bodily harm although the offense of conviction does not
qualify as aggravated assault?
3. Issue for Comment: Section 320102 of the Violent Crime Control
and Law Enforcement Act of 1994 increases the maximum imprisonment
penalty for involuntary manslaughter from three years to six years. The
proposed amendment responds to the Commission's recommendation that
Congress raise the penalty in order to achieve parity with the
sentencing practices of the majority of the states and to allow the
guideline sentence for this offense to operate without undue
constraint. Guideline 2A1.4 (Involuntary Manslaughter) applies a base
offense level of level 10 (if the conduct was criminally negligent) or
level 14 (if the conduct was reckless) to offenses under 18 U.S.C.
Sec. 1112. These offense levels may have reflected, in part, the
previous relatively low maximum term of imprisonment authorized for
this offense. The Commission invites comment on whether the base
offense levels under Sec. 2A1.4 (Involuntary Manslaughter) provide
adequate punishment and, if not, to what extent they should be
increased.
4. Synopsis of Proposed Amendment: The International Parental
Kidnapping Crime Act of 1993 (Public Law 103-73, codified at 18 U.S.C.
Sec. 1204) makes it unlawful to remove a child from the United States
with intent to obstruct the lawful exercise of parental rights. The
statutorily authorized maximum term of imprisonment for this offense is
three years. In contrast, other kidnapping offenses (e.g., 18 U.S.C.
Sec. 1201) have a statutory maximum sentence of life or death. Two
options are shown. Option 1 references this statute to Sec. 2A4.1
(Kidnapping, Abduction, Unlawful Restraint) with a separate base
offense level for a conviction under this statute. Option 2 references
this statute to Sec. 2J1.2 (Obstruction of Justice) because the
underlying conduct involves interference with a court's child-custody
order.
Proposed Amendment: [Option 1: Section Sec. 2A4.1(a) is amended by
deleting ``24'' and inserting in lieu thereof:
``(1) 24, except as provided below;
(2) 12, if the defendant was convicted under 18 U.S.C.
Sec. 1204.'';
and by inserting the following additional subsection:
``(d) Special Instruction
(1) If the base offense level is determined under subsection
(a)(2), do not apply subsection (b)(4).''.
Appendix A (Statutory Index) is amended by inserting the following
at the appropriate place by title and section:
``18 U.S.C. Sec. 1204 2A4.1''.]
[Option 2: Appendix A (Statutory Index) is amended by inserting the
following at the appropriate place by title and section:
``18 U.S.C. Sec. 1204 2J1.2''.]
5. Issue for Comment: Section 40112 of the Violent Crime Control
and Law Enforcement Act of 1994 directs the Commission to conduct a
study and consider appropriate amendments to Secs. 2A3.1 (Aggravated
Sexual Abuse) and 2A3.2 (Sexual Abuse) to address four concerns: (1)
enhancing the sentence if more than one defendant is involved in the
offense; (2) reducing unwarranted disparity between defendants who are
known by the victim and those who are unknown by the victim; (3) making
federal penalties commensurate with state penalties; and (4)
considering the general problem of recidivism, severity of the offense,
and devastating effects on survivors. The provision also requires the
preparation of a report to Congress analyzing federal rape sentences
and obtaining comment from independent experts on: (1) comparative
federal sentences between assailants who were known vs. unknown to
their victims; (2) comparative federal sentences with those of states;
and (3) the effect of rape sentences on Native American and U.S.
military populations relative to the impact of sentences for other
federal offenses on these populations. This report is to be submitted
to Congress by March 13, 1995.
The Commission invites comment on any aspect of this directive or
any amendment to the guidelines appropriate to address this directive.
Specifically, comment is requested on whether Sec. 2A3.1 (Criminal
Sexual Abuse) should be amended to include an enhancement for more than
one assailant. If such a factor is added, comment is requested as to
the weight to be given to that factor and how its inclusion should
affect the application of an adjustment for the defendant's role in the
offense under Chapter Three, Part B. Comment is further invited as to
whether the guidelines adequately account for the seriousness of the
sexual abuse offense (including the effects on the victim of sexual
abuse) and how any suggested changes should be applied. Currently,
through specific offense characteristics and other instructions in
Sec. 2A3.1, the guidelines consider the degree of bodily injury, age of
victim, sexual abuse of a person held within a correctional facility,
use of a dangerous weapon, circumstances in which the defendant holds a
supervisory or custodial role, circumstances in which the victim was
abducted, and death of the victim. The Commission invites comment on
additional factors that might appropriately be considered and the
weights such factors should be given.
Chapter Two, Parts A (Offenses Against the Person); G (Offenses
Involving Prostitution, Sexual Exploitation of Minors, and Obscenity);
J (Offenses Involving the Administration of Justice); and L (Offenses
Involving Immigration, Naturalization, and Passports)
6. Synopsis of Proposed Amendment: Sections 60010, 60011, 60016,
60017, and 60024 of the Violent Crime Control and Law Enforcement Act
of 1994 increase the penalty for various offenses resulting in the
death of a victim. It is not clear whether imposition of the penalties
in the new law will require proof of the conduct by a preponderance of
the evidence or beyond a reasonable doubt. For example, the ``beyond a
reasonable doubt standard'' contemplated in some instances by McMillan
v. United States, 477 U.S. 79 (1986), might be triggered by section
60010, which increases the six-month maximum imprisonment penalty for
abusive sexual contact of a ward to a maximum sentence of death or
imprisonment for any term of years or life if death results from that
contact.
Two options are shown. Option 1 amends the Statutory Index to
reference the new provisions to guidelines in Chapter Two, Part A, when
death results from the underlying offense. Under Sec. 1B1.2 (Applicable
Guidelines), this reference will apply only if it is found beyond a
reasonable doubt that death resulted from the offense. Option 2 amends
the guidelines for the underlying offenses to include a cross reference
to Chapter Two, Part A, if death results from the offense. Under Option
2, it need only be found by a preponderance of the evidence that death
resulted from the offense for the cross reference to apply, consistent
with Sec. 1B1.3 (Relevant Conduct).
Proposed Amendment: [Option 1: Appendix A (Statutory Index) is
amended in the line referenced to 8 U.S.C. Sec. 1324(a) by inserting
``2A1.1, [[Page 2432]] 2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2,'' immediately
before ``2L1.1'';
In the line referenced to 18 U.S.C. Sec. 1503 by inserting ``2A1.1,
2A1.2, 2A1.3, 2A2.1,'' immediately before ``2J1.2'';
In the line referenced to 18 U.S.C. Sec. 1513 by inserting ``(b)''
immediately following ``1513'';
By inserting the following at the appropriate place by title and
section:
``18 U.S.C. Sec. 1513(a) 2A1.1, 2A1.2, 2A1.3, 2A2.1 (2J1.2 for
offenses committed prior to September 13, 1994)'';
In the line referenced to 18 U.S.C. Sec. 2243(a) by inserting
``2A1.1, 2A1.2, 2A1.3, 2A1.4,'' immediately before ``2A3.2'';
In the line referenced to 18 U.S.C. Sec. 2243(b) by inserting
``2A1.1, 2A1.2, 2A1.3, 2A1.4,'' immediately before ``2A3.3'';
In the line referenced to 18 U.S.C. Sec. 2244 by inserting ``2A1.1,
2A1.2, 2A1.3, 2A1.4,'' immediately before ``2A3.4''; and
In the lines referenced to 18 U.S.C. Sec. 2251(a), (b) and to 18
U.S.C. Sec. 2251(c)(1)(B) by inserting ``2A1.1, 2A1.2, 2A1.3, 2A1.4,''
immediately before ``2G2.1''.]
[Option 2: Section 2A3.2(c) is amended by inserting the following
additional subdivision:
``(2) If death resulted, apply the most analogous offense guideline
from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting
offense level is greater than that determined above.''.
Section 2A3.3 is amended by inserting the following additional
subsection:
``(b) Cross Reference
(1) If death resulted, apply the most analogous offense guideline
from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting
offense level is greater than that determined above.''.
Section 2A3.4(c) is amended by inserting the following additional
subdivision:
``(3) If death resulted, apply the most analogous offense guideline
from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting
offense level is greater than that determined above.''.
Section 2G2.1 is amended by redesignating subsection (c) as (d);
and by inserting the following as subsection (c):
``(c) Cross Reference
(1) If death resulted, apply the most analogous offense guideline
from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting
offense level is greater than that determined above.''.
Section 2J1.2(c) is amended by deleting ``Reference'' and inserting
in lieu thereof ``References''; and by inserting the following
additional subdivision:
``(2) If death resulted, apply the most analogous offense guideline
from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting
offense level is greater than that determined above.''.
Section 2L1.1 is amended by inserting the following additional
subsection:
``(c) Cross Reference
(1) If death resulted, apply the most analogous offense guideline
from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting
offense level is greater than that determined above.''.
Chapter Two, Part A (Offenses Against the Person)
Chapter Four, Part A (Criminal History)
7. Synopsis of Proposed Amendment: Section 40111 of the Violent
Crime Control and Law Enforcement Act of 1994 adds a new section 2247
to title 18 that doubles the statutory maximum term of imprisonment for
defendants convicted of offenses under chapter 109A (Sexual Abuse) of
title 18 who have been convicted previously in federal or state court
of aggravated sexual abuse, sexual abuse, or aggravated sexual contact.
The section also directs the Sentencing Commission to implement this
provision ``by promulgating amendments, if appropriate, in the
sentencing guidelines applicable to chapter 109A offenses.''
None of the Chapter Two sexual abuse guidelines currently provides
for enhancement for repeat sex offenses. However, Chapter Four
(Criminal History and Criminal Livelihood) does include a determination
of the seriousness of the defendant's criminal record based upon prior
convictions (Sec. 4A1.1). Guideline 4B1.1 (Career Offender) also
provides enhanced penalties for offenders who engage in a crime of
violence or controlled substance offense, having been sentenced
previously for two or more crimes of either type. Crimes of violence
include sexual abuse offenses committed with violence or force or
threat of force (Sec. 4B1.2(1)). For cases in which a defendant is
sentenced for a current sexual offense, has only one prior sexual
offense, and no other prior crimes of violence or controlled substance
offenses, the prior sexual offense is accounted for within the
calculation of Criminal History Score. The Criminal History Score
classifies prior convictions based upon type and length of prior
sentence. Consequently, the sexual nature of the prior offense is not
considered specifically although it may be related to the type and
length of prior sentence.
Although, as noted above, the guidelines currently do not enhance
specifically for one prior repeat sex crime, Sec. 4A1.3 (Adequacy of
Criminal History Category) generally provides that an upward departure
may be considered ``[i]f reliable information indicates that the
criminal history category does not reflect the seriousness of the
defendant's past criminal conduct or the likelihood that the defendant
will commit other crimes.'' The proposed amendment builds on Sec. 4A1.3
by specifically listing as a basis for upward departure the fact that
the defendant has a prior sentence for conduct similar to the instant
sexual offense. This approach implements the directive to the
Commission in a broader but more flexible form.
Proposed Amendment: The Commentary to Sec. 2A3.1 captioned
``Application Notes'' is amended by inserting the following additional
note:
``6. If the defendant's criminal history includes a prior sentence
for conduct that is similar to the instant offense, an upward departure
may be warranted under Sec. 4A1.3 (Adequacy of Criminal History
Category).''.
The Commentary to Sec. 2A3.2 captioned ``Application Notes'' is
amended by inserting the following additional note:
``4. If the defendant's criminal history includes a prior sentence
for conduct that is similar to the instant offense, an upward departure
may be warranted under Sec. 4A1.3 (Adequacy of Criminal History
Category).''.
The Commentary to Sec. 2A3.3 captioned ``Application Notes'' is
amended by inserting the following additional note:
``2. If the defendant's criminal history includes a prior sentence
for conduct that is similar to the instant offense, an upward departure
may be warranted under Sec. 4A1.3 (Adequacy of Criminal History
Category).''.
The Commentary to Sec. 2A3.4 captioned ``Application Notes'' is
amended by inserting the following additional note:
``5. If the defendant's criminal history includes a prior sentence
for conduct that is similar to the instant offense, an upward departure
may be warranted under Sec. 4A1.3 (Adequacy of Criminal History
Category).''.
Section 4A1.3 is amended by inserting the following new paragraph
as the third paragraph:
``An upward departure under this provision, to reflect a
defendant's demonstrated pattern of particularly egregious criminal
conduct, also may be warranted if all of the following apply: (A) the
instant offense involves death, serious bodily injury, the attempted
[[Page 2433]] infliction of death or serious bodily injury, or a
forcible sexual offense; (B) the defendant's prior criminal history
includes one or more sentences for conduct that is similar to the
instant offense; and (C) the provisions of Secs. 4A1.1 (Career
Offender) or 4A1.4 (Armed Career Criminal) do not apply.''.
Additional Issue for Comment: The Commission invites comment on
whether, as an alternative to the proposed amendment, it should amend
the guidelines in Chapter Two, Part A, Subpart 3 (Criminal Sexual
Abuse) to provide higher offense levels if the defendant has a prior
conviction in federal or state court for aggravated sexual abuse,
sexual abuse, or aggravated sexual contact, and, if so, how such a
provision might best be drafted to account for the wide variations in
offenses of conviction that may involve such underlying conduct. The
Commission also invites comment on the appropriate amount of any such
increase in offense levels. Note that in circumstances in which the
defendant has two or more prior felony convictions of either a crime of
violence (which includes forcible sex offenses) or a controlled
substance offense, Sec. 4B1.1 (Career Offender) will provide a sentence
at or near the statutory maximum for the current offense.
Chapter Two, Part B (Offenses Involving Property)
Chapter Two, Part F (Offenses Involving Fraud Or Deceit)
8. Synopsis of Proposed Amendment: Section 110512 of the Violent
Crime Control and Law Enforcement Act of 1994 directs the Commission to
``amend its sentencing guidelines to provide an appropriate enhancement
of the punishment for a defendant convicted of a felony under chapter
25 (Counterfeiting and Forgery) of title 18, United States Code
(sections 471-513), if the defendant used or carried a firearm (as
defined in section 921(a)(3) of title 18, United States Code) during
and in relation to the felony.'' The vast majority of offenses in
chapter 25 are covered by Secs. 2B5.1 (Offenses Involving Counterfeit
Bearer Obligations of the United States) and 2F1.1 (Fraud and Deceit;
Offenses Involving Altered or Counterfeit Instruments Other than
Counterfeit Bearer Obligations of the United States). Neither
Sec. 2B5.1 nor Sec. 2F1.1 provides an adjustment for possession of a
firearm during and in relation to a felony. Commission data suggest
that the frequency of firearm possession in such cases is very low.
Two options are shown. Option 1 amends Secs. 2B5.1 and 2F1.1 to
provide an adjustment for using or carrying a weapon in connection with
the offense. Option 2 amends Secs. 2B5.1 and 2F1.1 to recommend an
upward departure in such circumstances.
Proposed Amendment: [Option 1: Section 2B5.1(b) is amended by
inserting the following additional subdivision:
``(3) If a dangerous weapon (including a firearm) was possessed in
connection with the offense, increase by 2 levels. If the resulting
offense level is less than level 13, increase to level 13.''
The Commentary to Sec. 2B5.1 captioned ``Background'' is amended by
inserting the following additional paragraph as the second paragraph:
``Subsection (b)(3) implements, in a broader form, the instruction
to the Commission in section 110512 of Public Law 103-322.''.
Section 2F1.1(b)(4) is amended by inserting ``(A)'' immediately
after ``involved'' and by inserting ``or (B) possession of a dangerous
weapon (including a firearm) in connection with the offense,''
immediately after ``injury,''.
The Commentary to Sec. 2F1.1 captioned ``Background'' is amended by
inserting the following additional paragraph as the next to the last
paragraph:
``Subsection (b)(4)(B) implements, in a broader form, the
instruction to the Commission in section 110512 of Public Law 103-
322.''.]
[Option 2: The Commentary to Sec. 2B5.1 captioned ``Application
Notes'' is amended by inserting the following additional Note:
``4. If a dangerous weapon (including a firearm) was possessed in
connection with the offense, an upward departure may be warranted.''.
The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is
amended by inserting the following additional Note:
``19. If a dangerous weapon (including a firearm) was possessed in
connection with the offense, an upward departure may be warranted.''.]
Additional Issue for Comment: The Commission, at the request of the
Department of Justice, invites comment on whether the form of any
enhancement for a dangerous weapon should be that used in Sec. 2B3.1
(Robbery) or that used in Chapter Two, Part D (Offenses Involving
Drugs).
Chapter Two, Part D (Offenses Involving Drugs)
9. Synopsis of Proposed Amendment: Section 60008 of the Violent
Crime Control and Law Enforcement Act of 1994 creates a new offense
codified at 18 U.S.C. Sec. 36 that makes it unlawful to fire a weapon
into a group of two or more persons in furtherance of, or to escape
detection of, a major drug offense with intent to intimidate, harass,
injure, or maim, and in the course of such conduct cause grave risk to
any human life or kill any person. A ``major drug offense'' is defined
to mean a continuing criminal enterprise, 21 U.S.C. Sec. 848(c), a drug
distribution conspiracy under 21 U.S.C. Sec. 846 or Sec. 963, or an
offense involving large quantities of drugs that is punishable under 21
U.S.C. Sec. 841(b)(1)(A) or Sec. 960(b)(1).
Two options are shown. Option 1 references this offense to
Sec. 2D1.1 in the Statutory Index. Option 2, in addition, references
the applicable Chapter Two, Part A, offenses.
Proposed Amendment: [Option 1: Appendix A (Statutory Index) is
amended by inserting the following in the appropriate place by title
and section:
``18 U.S.C. Sec. 36 2D1.1''.]
[Option 2: Appendix A (Statutory Index) is amended by inserting the
following in the appropriate place by title and section:
``18 U.S.C. Sec. 36 2A1.1, 2A1.2, 2A2.1, 2A2.2, 2D1.1''.]
Additional Issue for Comment: The Commission, at the request of the
Department of Justice, invites comment as to whether there should be an
enhancement under Sec. 2D1.1 for reckless endangerment by firing a
weapon into a group of two or more persons in a circumstance set forth
in section 60008 when no injury occurs.
10(A). Issue for Comment: Section 90101 of the Violent Crime
Control and Law Enforcement Act of 1994 amends 18 U.S.C. Sec. 1791
(providing or possessing contraband in prison) to provide four
different maximum penalties depending on the type of controlled
substance. The Commission invites comment on the appropriate treatment
of offenses under 18 U.S.C. Sec. 1791 involving drug trafficking in
correctional facilities. Specifically, should the enhanced offense
level in the cross reference in Sec. 2P1.2 (two levels plus the offense
level from Sec. 2D1.1) be expanded to apply to all drug trafficking
offenses under 18 U.S.C. Sec. 1791? Should the minimum offense level of
26 in this cross reference be applied to methamphetamine offenses to
reflect that such offenses now have the same 20-year statutory maximum
penalty as the other controlled substance distribution offenses to
which this cross reference applies? The Commission also invites comment
on the appropriate offense levels under Sec. 2P1.2 for offenses
involving the simple possession of controlled substances that occur in
correctional facilities. [[Page 2434]]
(B). Issue for Comment: Section 90103 of the Violent Crime and Law
Enforcement Act of 1994 directs the Commission to amend the guidelines
to provide an adequate enhancement for (1) an offense of simple
possession of a controlled substance under 21 U.S.C. Sec. 844 that
occurs in a federal prison or detention facility, and (2) an offense
under 21 U.S.C. Sec. 841 that involves distributing a controlled
substance in a federal prison or detention facility. The Commission
invites comment as to the best methods of implementing this directive.
With respect to distribution offenses, the Commission specifically
invites comment as to whether such offenses should be referenced to
Sec. 2D1.2, which provides enhanced penalties for controlled substance
distribution offenses involving protected locations. With respect to
simple possession offenses, the Commission specifically invites comment
as to whether an enhancement of two levels would be an appropriate
enhancement, or whether a higher or lower enhancement should be used.
In addition, the Commission invites comment on how the offense levels
for simple possession offenses in a correctional facility under
Secs. 2D2.1 and 2P1.2 might better be coordinated.
11. Issue for Comment: Section 90102 of the Violent Crime Control
and Law Enforcement Act of 1994 directs the Commission to amend the
guidelines to provide ``an appropriate enhancement'' for a defendant
convicted of violating 21 U.S.C. Sec. 860. This statute prohibits drug
trafficking in protected locations (e.g., near schools, playgrounds,
video arcades). Guideline 2D1.2 currently contains an enhanced penalty
for such offenses based on a congressional directive to the Commission
in section 6454 of Public Law 100-690 (pertaining to drug offenses
involving persons less than 18 years of age). The Commission seeks
comment on whether the enhancement for these offenses in Sec. 2D1.2 is
adequate to account for the directive set forth in section 90102 or, if
the current enhancement is not adequate, how and to what extent
Sec. 2D1.2 should be amended to provide an appropriate enhancement.
Additional Issue for Comment: The Commission, at the request of the
Federal and Community Defenders, invites comment as to whether the
guidelines should be amended to provide a lower base offense level if
an offense is committed in a protected location selected by law
enforcement or its agents. The Commission specifically invites comment
on the following proposal.
Section 2D1.2(a)(4) is amended by deleting ``otherwise'' and
inserting in lieu thereof:
``(A) if the offense involved a protected location and the
protected location was selected by law enforcement personnel, or
someone acting under the direction or control of law enforcement
personnel, or (B) in any case not covered by subdivisions 1 through 3
of this subsection.''.
12. Synopsis of Proposed Amendment: Section Two of the Domestic
Chemical Diversion Act of 1993 (Public Law 103-200) changes the
designations of the listed chemicals from ``listed precursor
chemicals'' and ``listed essential chemicals'' to ``list I chemicals''
and ``list II chemicals,'' respectively. Guideline 2D1.11 (Unlawfully
Distributing, Importing, Exporting or Possessing a Listed Chemical;
Attempt or Conspiracy) currently refers to ``listed precursor
chemicals'' and ``listed essential chemicals.'' This amendment conforms
Sec. 2D1.11 to the new terminology to avoid confusion.
Section Two of the Act also adds pills containing ephedrine as a
list I chemical. Ephedrine is a list I chemical under 21 U.S.C.
Sec. 802(34). Pills containing ephedrine previously were not covered by
the statute and thus legally could be purchased ``over the counter.''
Purchases of these pills were sometimes made in large quantities and
the pills crushed and processed to extract the ephedrine (which could
be used to make methamphetamine). Unlike ephedrine, which is purchased
from a chemical company and is virtually 100 percent pure, these
tablets contain about 25 percent ephedrine. To avoid unwarranted
disparity, this amendment adds a note to Sec. 2D1.11 providing that
only the amount of actual ephedrine contained in the pill is to be used
in determining the offense level.
Section Eight of the Act removes three chemicals from the listed
chemicals controlled under the Controlled Substances Act and adds two
chemicals. Two of the chemicals removed from the list are not currently
listed in Sec. 2D1.11 because the Commission was aware that they were
erroneously included in the statute (they are not used in the
manufacture of any controlled substance). The third chemical removed
from the list, d-lysergic acid, was listed both as a listed chemical in
Sec. 2D1.11 and as a controlled substance in Sec. 2D1.1. To conform
Sec. 2D1.11 to this change, the proposed amendment deletes all
references to d-lysergic acid. The two chemicals added as listed
chemicals are benzaldehyde and nitroethane. Both of these chemicals are
used to make methamphetamine. Base offense levels for listed chemicals
in Sec. 2D1.11 are determined by their relationship to the most common
controlled substance they are used to manufacture. The proposed
amendment adds these chemicals to the Chemical Quantity Table in
Sec. 2D1.11 based on information provided by the Drug Enforcement
Administration regarding their use in the production of
methamphetamine.
Several of the chemicals in the Chemical Quantity Table are used in
the same process to make a controlled substance, such as hydriodic acid
and ephedrine as well the two chemicals added above. The current note
at the end of the Precursor Chemical Equivalency Table states ``[i]n
cases involving both hydriodic acid and ephedrine, calculate the
offense level for each separately and use the quantity that results in
the greatest offense level.'' The proposed amendment expands this note
to cover other chemicals that may be used together, including the two
chemicals added by the statute.
Proposed Amendment: Section 2D1.11 and the commentary thereto is
amended by deleting ``listed precursor'' wherever it appears and
inserting in lieu thereof ``list I''; by deleting ``listed essential''
wherever it appears and inserting in lieu thereof ``list II''; and by
deleting ``Precursor Chemical Equivalency Table'' wherever it appears
and inserting in lieu thereof ``List I Chemical Equivalency Table''.
Section 2D1.11(d) is amended by deleting all lines referencing d-
lysergic acid.
The Chemical Quantity Table in Sec. 2D1.11(d) is amended in
subdivisions (1)-(9) by adding the following list I chemicals (formerly
Listed Precursor Chemicals) in the appropriate place in alphabetical
order by subdivision as follows:
(1) ``17.8 KG or more of Benzaldehyde;'', ``12.56 KG or more of
Nitroethane;'',
(2) ``At least 5.34 KG but less than 17.8 KG of Benzaldehyde;'',
``At least 3.768 KG but less than 12.56 KG of Nitroethane;'',
(3) ``At least 1.78 KG but less than 5.34 KG of Benzaldehyde;'',
``At least 1.256 KG but less than 3.768 KG of Nitroethane;'',
(4) ``At least 1.25 KG but less than 5.34 KG of Benzaldehyde;'',
``At least 879 G but less than 1.256 KG of Nitroethane;'',
(5) ``At least 712 G but less than 1.25 KG of Benzaldehyde;'', ``At
least 502 G but less than 879 G of Nitroethane;'', [[Page 2435]]
(6) ``At least 178 G but less than 712 G of Benzaldehyde;'', ``At
least 126 G but less than 879 G of Nitroethane;'',
(7) ``At least 142 G but less than 178 G of Benzaldehyde;'', ``At
least 100 G but less than 126 G of Nitroethane;'',
(8) ``At least 107 G but less than 142 G of Benzaldehyde;'', ``At
least 75 G but less than 100 G of Nitroethane;'',
(9) ``Less than 107 G of Benzaldehyde;'', ``Less than 75 G of
Nitroethane;'';
And by adding the following chemicals, in the appropriate place in
alphabetical order, to the List I Chemical Equivalency Table:
``1 gm of Benzaldehyde = 1.121 gm of Ephedrine'',
``1 gm of Nitroethane = 1.6 gm of Ephedrine''.
Section 2D1.11(d) is amended in the notes following the Chemical
Quantity Table by deleting Note (A) and inserting in lieu thereof:
``(A) The List I Chemical Equivalency Table provides a means for
combining different precursor chemicals to obtain a single offense
level. In a case involving two or more list I chemicals used to
manufacture different controlled substances or to manufacture one
controlled substance by different manufacturing processes, convert each
to its ephedrine equivalency from the table below, add the quantities,
and use the Chemical Quantity Table to determine the base offense
level. In a case involving two or more list I chemicals used together
to manufacture a controlled substance in the same manufacturing
process, use the quantity of the single list I chemical that results in
the greatest base offense level.'';
By deleting Note D and inserting in lieu thereof:
``(D) In a case involving ephedrine tablets, use the weight of the
ephedrine contained in the tablets, not the weight of the entire
tablets, in calculating the base offense level.''.
Section 2D1.11(d) is amended in the note following the List I
Chemical Equivalency Table (formerly the Precursor Chemical Equivalency
Table) designated by two asterisks by deleting ``both hydriodic acid
and ephedrine'' and inserting in lieu thereof ``two or more list I
chemicals used together in the same manufacturing process''.
The Commentary to Sec. 2D1.11 captioned ``Application Notes'' is
amended by deleting Note 4 in its entirety and inserting in lieu
thereof:
``4. When two or more list I chemicals are used together in the
same manufacturing process, calculate the offense level for each
separately and use the quantity that results in the greatest base
offense level. In any other case, the quantities should be added
together (using the List I Chemical Equivalency Table) for the purposes
of calculating the base offense level.
Examples:
(a) The defendant was in possession of five kilograms of ephedrine
and three kilograms of hydriodic acid. Both of these list I chemicals
are typically used together to manufacture methamphetamine. Therefore,
the base offense level for each listed chemical would be calculated
separately and the list I chemical with the highest base offense level
would be used. Five kilograms of ephedrine result in a base offense
level of 24; 300 grams of hydriodic acid result in base offense level
of 14. In this case, the base offense level would be 24.
(b) The defendant was in possession of five kilograms of ephedrine
and two kilograms of phenylacetic acid. Although both of these
chemicals are used to manufacture methamphetamine, they are used in two
different manufacturing processes and thus would not be used together.
In this case, the two kilograms of phenylacetic acid would convert to
two kilograms of ephedrine (see List I Chemical Equivalency Table),
resulting in a total equivalency of seven kilograms of ephedrine.''.
The Commentary to Sec. 2D1.11 captioned ``Background'' is amended
in the second sentence by deleting ``Listed precursor'' and inserting
in lieu thereof ``List I''; by deleting ``critical to the formation''
and inserting in lieu thereof ``important to the manufacture''; and by
inserting ``usually'' immediately before ``become''.
The Commentary to Sec. 2D1.11 captioned ``Background'' is amended
in the last sentence by deleting ``Listed essential'' and inserting in
lieu thereof ``List II''; by inserting ``used as'' immediately
following ``generally''; and by deleting ``and do not become part of
the finished product''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended by deleting Note 14 in its entirety, and by renumbering the
remaining notes accordingly.
13. Synopsis of Proposed Amendment: Section Three of the Domestic
Chemical Diversion Act of 1993 (Public Law 103-200) broadens the
prohibition in 21 U.S.C. Sec. 843(a) to cover possessing,
manufacturing, distributing, exporting, or importing three-neck round-
bottom flasks, tableting machines, encapsulating machines, or gelatin
capsules having reasonable cause to believe they will be used to
manufacture a controlled substance. Guideline 2D1.12 (Unlawful
Possession, Manufacture, Distribution, or Importation of Prohibited
Flask or Equipment; Attempt or Conspiracy) applies to this conduct.
Consistent with the treatment of similar conduct under
Secs. 2D1.11(b)(2) and 2D1.13(b)(2), this amendment revises Sec. 2D1.12
to provide a three-level reduction in the offense level for cases in
which the defendant had reasonable cause to believe, but not actual
knowledge or belief, that the equipment was to be used to manufacture a
controlled substance.
Proposed Amendment: Section 2D1.12 is amended by inserting ``(Apply
the greatest)'' immediately after ``Base Offense Level''; and by
deleting ``12'' and inserting in lieu thereof:
``(1) 12, if the defendant intended to manufacture a controlled
substance or knew or believed the prohibited equipment was to be used
to manufacture a controlled substance; or
(2) 9, if the defendant had reasonable cause to believe the
prohibited equipment was to be used to manufacture a controlled
substance.''.
Chapter Two, Part H (Offenses Involving Individual Rights)
Chapter Three, Part A (Victim-Related Adjustments)
14. Synopsis of Proposed Amendment: This is a three-part amendment.
First, the amendment adds an additional subsection to Sec. 3A1.1 to
implement the directive contained in Section 280003 of the Violent
Crime Control and Law Enforcement Act of 1994. Second, the amendment
consolidates Secs. 2H1.1, 2H1.3, 2H1.4, and 2H1.5, and adjusts the
offense levels in these guidelines to harmonize them with each other,
better reflect the seriousness of the underlying conduct, and reflect
the revision of Sec. 3A1.1. Third, the amendment references violations
of 18 U.S.C. Sec. 248 (the Freedom of Access to Clinic Entrances Act of
1994, Public Law 103-259) to the consolidated guideline.
Section 280003 of the Violent Crime Control and Law Enforcement Act
of 1994 directs the Commission to provide a minimum enhancement of
three levels for offenses that the finder of fact at trial determines
are hate crimes. This directive also instructs the Commission to ensure
that there is reasonable consistency with other guidelines and that
duplicative punishments for the same offense are avoided. The Freedom
of Access to Clinic Entrances Act of 1994 makes it a crime to interfere
with access to reproductive services or to interfere with certain
religious activities.
Since their inception, the guidelines have provided enhanced
penalties for [[Page 2436]] offenses involving individual rights (hate
crimes or other offenses committed under color of law). These enhanced
penalties reflect that, in such offenses, the harm includes both the
underlying criminal conduct and an added civil rights component. Under
the current civil rights offense guidelines, there is a two-level
enhancement for hate crimes committed by a person other than a public
official. There is a six-level enhancement for all offenses committed
under color of law, including both hate and non-hate crimes.
The existing civil rights offense guidelines provide alternative
base offense levels: (1) the offense level applicable to the underlying
offense plus the additional levels for the civil rights component; and
(2) a minimum or ``default'' offense level. The enhanced offense levels
for civil rights offenses do not apply to hate crimes prosecuted under
other statutes. Official misconduct offenses (offenses committed under
color of law) prosecuted under other statutes generally receive an
enhanced penalty of two levels under Sec. 3B1.3 (Abuse of Position of
Special Trust) rather than the six levels applicable under the civil
rights offense guidelines.
The congressional directive in section 280003 requires that the
three-level hate crimes enhancement apply where ``the finder of fact at
trial determines beyond a reasonable doubt'' that the offense of
conviction was a hate crime. The proposed amendment makes the
enhancement applicable if either the finder of fact at trial or, in the
case of a guilty or nolo contendere plea, the court at sentencing,
determines that the offense was a hate crime. By broadening the
applicability of the congressionally mandated enhancement, the
Commission will avoid unwarranted sentencing disparity based on the
mode of conviction. The Commission's authority, pursuant to 28 U.S.C.
Sec. 994, permits such a broadening of the enhancement.
The addition of a generally applicable Chapter Three hate crimes
enhancement requires amendment of the civil rights offense guidelines
to avoid duplicative punishments. In addition, to further the
Commission's goal of simplifying the operation of the guidelines, the
proposed amendment consolidates the four current civil rights offense
guidelines into one guideline.
Proposed Sec. 2H1.1 provides alternative offense levels using the
greatest of the following: (1) the base offense level for the
underlying offense; (2) level 10, for offenses involving the use or
threatened use of force or the actual or threatened destruction of
property; or (3) level 6, otherwise. In addition, two options for
setting the default offense level for conspiracies involving individual
rights are shown. One option sets a default level of 12 for offenses
involving two or more participants. This option is two levels higher
than the default offense level for substantive offenses involving force
or the threat of force and six levels higher than the default offense
level for substantive offenses not involving force or the threat of
force. A second option sets the default offense level of 10, which is
consistent with the default offense level for substantive civil rights
offenses involving force or the threat of force and four levels higher
than the offense level for substantive civil rights offenses not
involving force or the threat of force.
Proposed Sec. 2H1.1, working together with the proposed Sec. 3A1.1,
provides enhanced penalties for civil rights offenses. For hate crimes
committed by persons who are not public officials, the enhancement is
three levels under proposed Sec. 3A1.1, one level greater than under
the current guidelines. Unlike the current guidelines, however, the
proposed guideline differentiates between hate crimes and non-hate
crimes committed under color of law, punishing hate crimes committed by
public officials more severely than non-hate crimes. Proposed
Sec. 2H1.1 provides an enhancement for non-hate crimes committed under
color of law of either two, three, or four levels above the offense
level for the underlying offense. A two-level enhancement would be
consistent with the generally applicable enhancement under Sec. 3B1.3
(Abuse of Position of Special Trust). A three- or four-level
enhancement would be higher than the generally applicable enhancement
under Sec. 3B1.3 and arguably would reflect the greater harm done by
those in positions of authority when the harm involves violations of
individual rights. Because of the additional three-level hate crime
enhancement under Sec. 3A1.1, the proposed amendment would provide a
combined enhancement for hate crimes committed by public officials of
five, six, or seven levels.
The clinic access law, like the other criminal civil rights
statutes, criminalizes a broad array of conduct, from non-violent
obstruction of the entrance to a clinic to murder. The proposed
amendment treats these violations in the same way as other offenses
involving individual rights.
Two options are shown. Option 1 sets forth an amendment consistent
with the preceding discussion. An alternative to this proposed
amendment, published at the request of the Department of Justice, is
set forth as Option 2.
Proposed Amendment: [Option 1: Section 3A1.1 and accompanying
commentary is deleted in its entirety and the following inserted in
lieu thereof:
``Sec. 3A1.1. Hate Crime Motivation or Vulnerable Victim
(a) If the finder of fact at trial or, in the case of a plea of
guilty or nolo contendere, the court at sentencing determines beyond a
reasonable doubt that the defendant intentionally selected any victim
or any property as the object of the offense because of the actual or
perceived race, color, religion, national origin, ethnicity, gender,
disability, or sexual orientation of any person, increase by 3 levels;
or
(b) If the defendant knew or should have known that a victim of the
offense was unusually vulnerable due to age, physical or mental
condition, or that a victim was otherwise particularly susceptible to
the criminal conduct, increase by 2 levels.
Commentary
Application Notes:
1. Subsection (a) applies to offenses that are hate crimes. Note
that special evidentiary requirements govern the application of this
subsection.
2. Subsection (b) applies to offenses in which an unusually
vulnerable victim is made a target of criminal activity by the
defendant and the defendant knew or should have known of the victim's
unusual vulnerability. The adjustment would apply, for example, in a
fraud case where the defendant marketed an ineffective cancer cure or
in a robbery where the defendant selected a handicapped victim. But it
would not apply in a case where the defendant sold fraudulent
securities by mail to the general public and one of the victims
happened to be senile. Similarly, for example, a bank teller is not an
unusually vulnerable victim solely by virtue of the teller's position
in a bank.
3. Do not apply subsection (a) on the basis of gender in the case
of a sexual offense. In such cases, this factor is taken into account
by the offense level of the Chapter Two offense guideline.
4. Do not apply subsection (b) if the offense guideline
specifically incorporates this factor. For example, if the offense
guideline provides an enhancement for the age of the victim, this
subsection should not be applied unless the victim was unusually
vulnerable for reasons unrelated to age.
5. If subsection (a) applies, do not apply subsection (b). In the
case of an offense that both is a ``hate'' crime and involves an
unusually vulnerable [[Page 2437]] victim, a sentence at or near the
upper limit of the applicable guideline range (which will include a 3-
level enhancement from subsection (a)) typically will be appropriate.
Background: Subsection (a) reflects the directive to the
Commission, contained in Section 280003 of the Violent Crime Control
and Law Enforcement Act of 1994, to provide an enhancement of not less
than three levels for an offense when the finder of fact at trial
determines beyond a reasonable doubt that the defendant had a hate
crime motivation (i.e., a primary motivation for the offense was the
race, color, religion, national origin, ethnicity, gender, disability,
or sexual orientation of the victim). To avoid unwarranted sentencing
disparity based on the method of conviction, the Commission has
broadened the application of this enhancement to include offenses that,
in the case of a plea of guilty or nolo contendere, the court at
sentencing determines are hate crimes.''.
The Introductory Commentary to Chapter Two, Part H, Subpart I and
Secs. 2H1.1, 2H1.3, 2H1.4, and 2H1.5 are deleted in their entirety and
the following inserted in lieu thereof:
``Sec. 2H1.1. Offenses Involving Individual Rights
(a) Base Offense Level (Apply the greatest):
(1) the offense level from the offense guideline applicable to any
underlying offense;
[(2) 10, if the offense involved (A) the use or threat of force
against a person; or (B) property damage or the threat of property
damage; or (C) two or more participants; or
(3) 6, otherwise.]
[(2) 12, if the offense involved two or more participants; or
(3) 10, if the offense involved (A) the use or threat of force
against a person; or (B) property damage or the threat of property
damage; or
(4) 6, otherwise.]
(b) Specific Offense Characteristics
(1) If (A) the defendant was a public official at the time of the
offense; or (B) the offense was committed under color of law, increase
by [2][3][4] levels. If the resulting offense level is less than level
10, increase to level 10.
Commentary
Statutory Provisions: 18 U.S.C. Sec. 241, 242, 245(b), 246, 247,
248, 1091; 42 U.S.C. Sec. 3631.
Application Notes:
1. `Offense guideline applicable to any underlying offense' means
the offense guideline applicable to any conduct established by the
offense of conviction that constitutes an offense under federal, state,
or local law (other than an offense that is itself covered under
Chapter Two, Part H, Subpart 1).
In certain cases, conduct set forth in the count of conviction may
constitute more than one underlying offense (e.g., two instances of
assault, or one instance of assault and one instance of arson). In such
cases, determine the number and nature of underlying offenses by
applying the procedure set forth in Application Note 5 of Sec. 1B1.2
(Applicable Guidelines). If the Chapter Two offense level for any of
the underlying offenses under subsection (a)(1) is the same as, or
greater than, the alternative base offense level under subsection
[(a)(2) or (3)] [(a)(2), (3), (4)], as applicable, use subsection
(a)(1) and treat each underlying offense as if contained in a separate
count of conviction. Otherwise, use subsection [(a)(2) or (3)] [(a)(2),
(3), (4)], as applicable, to determine the base offense level.
2. `Participant' is defined in the Commentary to Sec. 3B1.1
(Aggravating Role).
3. The burning or defacement of a religious symbol with an intent
to intimidate shall be deemed to involve the threat of force against a
person for the purposes of subsection (a)[(2)][(3)](A).
4. If the finder of fact at trial or, in the case of a plea of
guilty or nolo contendere, the court at sentencing determines beyond a
reasonable doubt that the defendant intentionally selected any victim
or any property as the object of the offense because of the actual or
perceived race, color, religion, national origin, ethnicity, gender,
disability, or sexual orientation of any person, an additional 3-level
enhancement from Sec. 3A1.1(a) will apply.
5. If subsection (b)(1) applies, do not apply Sec. 3B1.3 (Abuse of
Position of Trust or Use of Special Skill).''.]
[Option 2: Section 2H1.1(b) is amended by inserting the following
additional subdivision:
``(2) If proof of the conspiracy requires a showing that a
defendant acted for an improper purpose as defined in 18 U.S.C.
Secs. 245, or 247, or 42 U.S.C. Sec. 3631, increase by [1] level.''.
Section 2H1.3(a) is amended--
(1) in subdivision (1) by deleting ``10'' and inserting in lieu
thereof ``[11]'';
(2) in subdivision (2) by deleting ``15'' and inserting in lieu
thereof ``[16]''; and
(3) in subdivision (3) by deleting ``2'' and inserting in lieu
thereof ``[3]''.
Chapter Three, Part A, is amended by adding the following
additional section:
Sec. 3A1.4. Hate Crime Motivation
If the finder of fact at trial or, in the case of a plea of guilty
or nolo contendere, the court at sentencing determines beyond a
reasonable doubt that the defendant intentionally selected any victim
or any property as the object of the offense because of the actual or
perceived race, color, religion, national origin, ethnicity, gender,
disability, or sexual orientation of any person, increase by [3]
levels.
Commentary
Application Notes:
1. Do not apply this adjustment if the offense guideline
specifically incorporates this factor. For example, do not apply this
adjustment if Sec. 2H1.1(b)(2) or Sec. 2H1.3 applies. Similarly, do not
apply this adjustment on the basis of gender in the case of a sexual
offense. In such cases, this factor is taken into account by the
offense level established by the Chapter Two offense guideline.
2. Note that special evidentiary requirements govern the
application of this subsection.
Background: This section reflects the directive to the Commission
in section 280003 of the Violent Crime Control and Law Enforcement Act
of 1994, to provide an enhancement of not less than three levels for an
offense when the finder of fact at trial determines beyond a reasonable
doubt that the defendant had a hate crime motivation (i.e., that the
defendant intentionally selected a victim or property as the object of
the offense because of a factor listed in this section). To avoid
unwarranted sentencing disparity based on the method of conviction, the
Commission has broadened the application of this enhancement to include
offenses that, in the case of a plea of guilty or nolo contendere, the
court at sentencing determines are hate crimes.''.
Additional Issue for Comment: If Option 2 is adopted, the
Commission seeks comment on how it should implement the penalty
provisions of the Freedom of Access to Clinic Entrances Act of 1994.]
Chapter Two, Part K (Offenses Involving Public Safety)
15. Synopsis of Proposed Amendment: Section 110102 of the Violent
Crime Control and Law Enforcement Act of 1994 amends 18 U.S.C. Sec. 922
to add subsection (v), making it unlawful to manufacture, transfer, or
possess ``semiautomatic assault weapons.'' Previously, only importation
and possession (pursuant to 18 U.S.C. Sec. 925(d)(3)) and assembly of
imported parts (pursuant to 18 U.S.C. Sec. 922(r)) of semiautomatic
assault rifles [[Page 2438]] and shotguns (but not pistols) were
prohibited. Section 110102 also increases the penalty for using or
carrying a semiautomatic assault weapon ``during and in relation to any
crime of violence or drug trafficking crime'' to a fixed, mandatory
consecutive term of 10 years or, in the case of a second or subsequent
conviction, 20 years. The term ``semiautomatic assault weapon'' is
defined at new 18 U.S.C. Sec. 921(a)(30).
Guideline 2K2.1 covers other firearm offenses involving
semiautomatic assault weapons. For example, the base offense level for
possession of an unlawfully imported semiautomatic assault weapon is
level 12. Additional adjustments may apply and an upward departure is
recommended if the offense involved multiple military-style assault
rifles.
Proposed Amendment: Appendix A (Statutory Index) is amended by
inserting the following in the appropriate place by title and section:
``18 U.S.C. Sec. 922(v) 2K2.1''.
Additional Issue for Comment: At the request of the Department of
Justice, the Commission invites comment as to whether there should be
an enhanced offense level under Sec. 2K2.1 for a conviction under 18
U.S.C. Sec. 922(v).
16. Synopsis of Proposed Amendment: Section 110201 of the Violent
Crime Control and Law Enforcement Act of 1994 adds a new provision at
18 U.S.C. Sec. 922(x) making it unlawful, with some exceptions, to sell
or transfer a handgun, or ammunition that is suitable for use only in a
handgun, to a juvenile. The provision also prohibits, with some
exceptions, a juvenile from possessing a handgun or ammunition. A
juvenile is defined as a person who is less than eighteen years of age.
The maximum imprisonment penalty for a person who violates this section
is one year. However, if an adult defendant transfers a handgun or
ammunition to a juvenile ``knowing or having reasonable cause to know
that the juvenile intended to carry or otherwise possess or discharge
or otherwise use the handgun or ammunition in the commission of a crime
of violence,'' the maximum authorized term of imprisonment is ten
years.
In addition, section 110401 of the Violent Crime Control and Law
Enforcement Act of 1994 amends 18 U.S.C. Sec. 922(d) to make it
unlawful to sell or otherwise dispose of any firearm or ammunition to
any person, knowing or having reasonable grounds to believe that such
person ``is subject to a court order that restrains such person from
harassing, stalking, or threatening an intimate partner of such person
or child of such intimate partner or person, or engaging in other
conduct that would place an intimate partner in reasonable fear of
bodily injury to the partner or child.'' This section also amends 18
U.S.C. Sec. 922(g) to make it unlawful for a person who is subject to
such a court order to possess or receive any firearm or ammunition in
or affecting commerce.
Guideline 1B1.12 provides that the guidelines do not apply to a
juvenile sentenced under the Juvenile Delinquency Act, 18 U.S.C.
Sec. 5031-5042. Guideline 2K2.1 typically applies a base offense level
of 6 to a misdemeanor offense or to a felony recordkeeping offense.
Guideline 2K2.1 provides a base offense level of 12 for the transfer of
a firearm by a licensed dealer to a juvenile or to a person prohibited
under 18 U.S.C. Sec. 922(g) from possessing a firearm. The section also
provides a base offense level of 14 for possession of a firearm by a
prohibited person and increases the base offense level depending on the
prior criminal history of the defendant. A specific offense
characteristic may apply in the case of multiple firearms. A defendant
who transfers a firearm knowing or having reason to believe that it may
be used in connection with another felony offense is subject to the
greater of a four-level adjustment with a minimum offense level of 18,
or a cross reference to the guideline for the other offense.
The proposed amendment adds a person under the court order
described in section 110401 to the definition of a ``prohibited
person.'' In addition, three amendment options are shown regarding the
offense level for transfer of a firearm to a juvenile. Option 1 would
result in a base offense level of 6; Option 2 would result in a base
offense level of 12; Option 3, published at the request of the
Department of Justice, would result in a base offense level of 14 if
the defendant transferred a firearm to an underage person or to another
prohibited person. Such a defendant currently would receive a base
offense level of 12 under Sec. 2K2.1.
Proposed Amendment: The Commentary to Sec. 2K2.1 captioned
``Application Notes'' is amended in Note 6 by deleting ``or (v)'' and
inserting ``(v)'' in lieu thereof; and by inserting ``; or (vi) is
subject to a court order that restrains the defendant from harassing,
stalking, or threatening an intimate partner or child or from engaging
in related conduct.'' immediately following ``States''.
[Option 1: Section Sec. 2K2.1(a)(8) is amended by deleting ``or''
and by inserting ``, or (x)'' immediately following ``(m)''.
Appendix A (Statutory Index) is amended by inserting the following
in the appropriate place by title and section:
``18 U.S.C. Sec. 922(x) 2K2.1''.]
[Option 2: Appendix A (Statutory Index) is amended by inserting the
following in the appropriate place by title and section:
``18 U.S.C. Sec. 922(x) 2K2.1''.]
[Option 3: Section 2K2.1(a)(6) is amended by inserting ``or if the
transferor knew or had reasonable cause to believe that the transferee
was a prohibited person or was underage'' immediately following
``prohibited person''.
The Commentary to Sec. 2K2.1 captioned ``Application Notes'' is
amended in Note 6 by inserting the following at the end thereof:
```Underage,' as used in subsection (a)(6), means under the ages set
forth in 18 U.S.C. Sec. 922(b)(1).
Appendix A (Statutory Index) is amended by inserting the following
in the appropriate place by title and section:
``18 U.S.C. Sec. 922(x) 2K2.1''.]
17. Issue for Comment: Section 110501 of the Violent Crime Control
and Law Enforcement Act of 1994 directs the Commission to provide an
appropriate enhancement for a crime of violence or drug trafficking
crime if a semiautomatic firearm is involved. The Commission requests
comment on the most appropriate way to implement this directive.
Information available to the Commission indicates that 50 to 70 percent
of offenses involving a firearm involve a semiautomatic firearm; thus,
offenses involving semiautomatic firearms represent the typical or
``heartland'' cases. Specifically, the Commission requests comment on
how the offense level for an offense involving a semiautomatic firearm
should be modified to address the directive. The Commission also
requests comment on whether such an increase should apply to all
semiautomatic firearms or whether the Commission should focus this
enhancement on firearms that have characteristics that make them more
dangerous than other firearms (e.g., semiautomatic firearms with a
large magazine capacity). In addition, the Commission requests comment
on whether any such enhancement should apply only to crimes of violence
and drug trafficking offenses as specified in the directive or whether
it should apply to other offenses such as firearms offenses covered by
Sec. 2K2.1 or to all offenses.
18. Issue for Comment: Section 110502 of the Violent Crime Control
and [[Page 2439]] Law Enforcement Act of 1994 directs the Commission to
``appropriately enhance penalties for cases in which a defendant
convicted under 18 U.S.C. Sec. 844(h) has previously been convicted
under that section.'' Section 320106 revises the previous fixed,
mandatory consecutive 5-year penalty for a first offense under 18
U.S.C. Sec. 844(h) to provide a range of 5 to 15 years, and changes the
previous fixed, mandatory consecutive penalty for a second offense from
10 years to a range of 10 to 25 years. The Commission requests comment
as to how Sec. 2K2.4 can be amended appropriately to address this
directive and statutory change. Possible approaches might include: (1)
an amendment to Sec. 2K2.4 to increase the sentence by a specific
amount if the defendant previously has been convicted under 18 U.S.C.
Sec. 844(h); (2) application under Sec. 2K2.4 of the minimum term of
imprisonment required by statute, with a departure recommended when
this sentence, combined with the sentence for the underlying offense,
does not provide adequate punishment; or (3) an amendment to Sec. 2K2.4
to reference the underlying offense plus an appropriate enhancement for
the weapon or explosive, and a provision for apportioning the sentence
imposed to avoid double counting.
19. Issue for Comment: Section 110513 of the Violent Crime Control
and Law Enforcement Act of 1994 directs the Commission to
``appropriately enhance'' penalties (1) for cases in which a defendant
convicted under 18 U.S.C. Sec. 922(g) has one prior conviction for a
violent felony (as defined in 18 U.S.C. Sec. 924(e)(2)(B)) or a serious
drug offense (as defined in 18 U.S.C. Sec. 924(e)(2)(A)); and (2) for
cases in which a defendant has two such prior convictions. The
statutory maximum for the offense remains at ten years.
Guideline 2K2.1 covers violations of 18 U.S.C. Sec. 922(g).
Alternative base offense level apply depending on the number of prior
convictions of one or more ``crime[s] of violence'' or ``controlled
substance offense[s].'' For example, a defendant with one such prior
conviction would receive a base offense level of at least 20. A
defendant with two or more such prior convictions would receive a base
offense level of at least 24. In addition, a four-level enhancement or
a cross reference may apply if the weapon was to be used in another
felony. Other enhancements may apply depending on the type and number
of weapons, and whether the weapon was stolen.
The Commission's definitions of ``crime of violence'' and
``controlled substance offense'' are similar but not identical to those
referenced in the directive. Guideline 2K2.1 draws its definition of
``crime of violence'' from 18 U.S.C. Sec. 924(e) with a minor
modification. Whereas the section 924(e) definition of ``violent
felony'' includes any burglary, including a burglary of an abandoned
commercial building, Taylor v. United States, 495 U.S. 575, 602 (1990),
the definition of ``crime of violence'' in Sec. 2K2.1 includes only
burglary of a dwelling, consistent with the career offender provisions
of the guidelines. United States v. Talbott, 902 F.2d 1129, 1133 (4th
Cir. 1990).
Further, the Sec. 2K2.1 definition of ``controlled substance
offense,'' drawn from 18 U.S.C. Sec. 924(c) and the career offender
provisions of the guidelines, is slightly different from that in 18
U.S.C. Sec. 924(e). The section 924(e) definition of ``serious drug
offense'' requires that the drug offense (whether federal or state)
have a maximum term of imprisonment of ten years or more. This narrower
definition precludes, for example, counting a federal conviction under
21 U.S.C. Sec. 843(b) (four year statutory maximum for using a
communication facility to facilitate drug distribution). By contrast,
the definition of ``controlled substance offense'' in Sec. 2K2.1
includes such ``telephone counts.'' United States v. Vea-Gonzales, 999
F.2d 1326, 1329-30 (9th Cir. 1993). Moreover, where one state imposes a
five-year maximum for certain drug conduct while another state imposes
a ten-year maximum for the identical conduct, the section 924(e)
definition would not count a defendant's conviction in the first state
but would count the defendant's conviction in the second state.
The Commission invites comment on whether the current offense
levels in these guidelines should be increased and, if so, by what
amount. The Commission also invites comment on whether, for
consistency, the definitions and counting of prior conviction of crime
of violence and drug trafficking offense used in these guidelines
should be the same as those used in Sec. 4B1.1 (Career Offender).
20. Synopsis of Proposed Amendment: Section 110504 of the Violent
Crime Control and Law Enforcement Act of 1994 amends 18 U.S.C. Sec. 924
to add subsection (k) making it unlawful to steal any firearm that is
moving or has moved in interstate commerce. Likewise, 18 U.S.C.
Sec. 844 is amended to add subsection (k) making it unlawful to steal
any explosive that is moving or has moved in interstate commerce.
Section 110511 amends 18 U.S.C. Sec. 922(j) to clarify that it is
unlawful to receive or possess any stolen firearm that has moved in
interstate commerce regardless of whether the movement occurred
``before or after it [the firearm] was stolen.''
Section 110515 amends 18 U.S.C. Sec. 924 to add a new subsection
(l) making it a federal crime to steal any firearm from a licensed
importer, manufacturer, dealer, or collector. The section also amends
18 U.S.C. Sec. 844 to add a new subsection (l) with regard to stealing
explosives from licensees.
Current law also proscribes shipping a stolen firearm (18 U.S.C.
Sec. 922(i)), stealing from the person or premises of a licensee any
firearm in the business inventory (18 U.S.C. Sec. 922(u)), and shipping
stolen explosives (18 U.S.C. Sec. 842(h)). Further, the general theft
statute, 18 U.S.C. Sec. 659, provides a maximum imprisonment penalty of
ten years for stealing ``goods or chattels,'' including a firearm,
``moving as or which are part of or which constitute an interstate or
foreign shipment of freight, express, or other property.'' Other theft
and receipt of stolen property statutes may also apply to a theft of a
firearm.
Guideline 2K2.1 covers offenses involving stolen firearms. These
offenses are subject to a base offense level of 12. Additional
adjustments may also apply. A two-level enhancement applies if a
firearm is stolen unless the only count of conviction is a stolen
firearm offense. This conditional adjustment has resulted in several
calls to the Commission's hotline regarding cases involving a felon in
possession of a stolen firearm who may be charged either under 18
U.S.C. Sec. 922(g) (felon in possession) or with 18 U.S.C. Sec. 922(j)
(receipt of stolen firearm). A conviction under section 922(g) will
result in a total offense level of 16 (base offense level of 14 plus
two-level adjustment for stolen firearm). A conviction under section
922(j) will result in a total offense level of 14 (base offense level
of 14 but, per application note 12, no two-level adjustment for stolen
firearm because the only offense of conviction is a stolen firearm
offense). Further, the list of stolen firearm statutes has not been
updated to reflect recent amendments to the code. Indeed, 18 U.S.C.
Sec. 922(u) (theft from dealer) as well as 18 U.S.C. Secs. 922(s) and
922(t) (Brady bill provisions) are not listed in the Statutory Index.
Guideline 2B1.1 governs general theft offenses, including offenses
of goods traveling in interstate commerce and offenses within the
special federal maritime or territorial jurisdiction or within Indian
territory. Guideline [[Page 2440]] 2B1.1(b)(2)(A) provides for a one-
level increase (to no less than level 7) if a firearm or destructive
device was taken, compared with a base offense level 12 under
Sec. 2K2.1.
Two options are proposed to address the disparity in Sec. 2B1.1 and
Sec. 2K2.1 penalties. Option 1 amends Sec. 2B1.1 to include a cross
reference to Sec. 2K2.1. Option 2 amends Sec. 2B1.1 to recommend an
upward departure. The amendment also specifies a base offense level of
6 for convictions under 18 U.S.C. Sec. 922 (s) or (t) and clarifies
application of Note 6 only to cases in which the base offense level is
determined under Sec. 2K2.1(a)(7).
Proposed Amendment: Section 2K2.1(a)(8) is amended by deleting
``or'' and inserting in lieu thereof ``(s), or (t)''.
The Commentary to Sec. 2K2.1 captioned ``Application Notes'' is
amended in Note 12 by deleting ``or (k),'' and inserting in lieu
thereof ``(u), or Sec. 924 (j) or (k),''; and by inserting ``and the
base offense level is determined under Sec. 2K2.1(a)(7),'' immediately
following ``guideline,''.
[Option 1: Section 2B1.1(b) is amended by deleting subdivision (2).
Section 2B1.1 is amended by inserting the following additional
subsection:
``(c) Cross Reference
(1) If (A) a firearm, destructive device, explosive material, or
controlled substance was taken, or the taking of such item was an
object of the offense, or (B) the stolen property received,
transported, transferred, transmitted, or possessed was a firearm,
destructive device, explosive material, or controlled substance, apply
Sec. 2D1.1, Sec. 2D2.1, Sec. 2K1.3, or Sec. 2K2.1, as appropriate, if
the resulting offense level is greater than that determined above.''.]
[Option 2: Section 2B1.1(b) is amended by deleting subdivision (2).
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is
amended by inserting the following additional Note:
``15. If the offense involved the unlawful taking, receipt,
transportation, transfer, transmittal, or possession of a firearm,
destructive device, explosive material, or controlled substance, an
upward departure to an offense level comparable to that provided under
Sec. 2D1.1, Sec. 2D2.1, Sec. 2K1.3, or Sec. 2K2.1, as appropriate, may
be warranted.''.]
Appendix A (Statutory Index) is amended by inserting the following
in the appropriate place by title and section:
``18 U.S.C. Sec. 922(s)-(u) 2K2.1'',
``18 U.S.C. Sec. 924(k),(l) 2K2.1''.
21. Synopsis of Proposed Amendment: Section 110518 of the Violent
Crime Control and Law Enforcement Act of 1994 amends 18 U.S.C. Sec. 924
to add a new subsection (n) to provide that ``[a] person who conspires
to commit an offense under subsection (c) shall be imprisoned for not
more than 20 years, fined under this title, or both; and if the firearm
is a machinegun or destructive device, or is equipped with a firearm
silencer or muffler, shall be imprisoned for any term of years or
life.'' This section also amends 18 U.S.C. Sec. 844 to add a new
subsection (m) increasing to 20 years the maximum imprisonment penalty
for a conspiracy to violate 18 U.S.C. Sec. 844(h). This section does
not alter the fixed, mandatory consecutive penalty for the underlying
substantive offenses of using or carrying a firearm or explosive during
and in relation to a crime of violence or drug trafficking crime. Thus,
identical offense conduct covered by these statutes may be subject, for
example, to a fixed, mandatory five-year term to run consecutively to
any underlying offense if indicted under 18 U.S.C. Sec. 924(c), a 5-
year mandatory minimum term and 15-year maximum term to run
consecutively to any underlying offense if indicted under 18 U.S.C.
Sec. 844(h), a 5-year maximum term under 18 U.S.C. Sec. 371, or a 20-
year maximum term under 18 U.S.C. Sec. 924(n).
Guideline 2K2.4 provides for the term of imprisonment required by
18 U.S.C. Sec. 924(c). Guideline 2K2.1 applies to an offense under 18
U.S.C. Sec. 371 involving conspiracy to violate 18 U.S.C. Sec. 924(c)
and provides for an offense level of at least 18 (base offense level 12
plus increase to an offense level of at least 18 if the firearm or
ammunition was used or intended to be used in connection with another
offense). Additional adjustments may apply. The explosives guideline,
Sec. 2K1.3, also provides an offense level of at least 18 for a
conviction under 18 U.S.C. Sec. 371 for conspiracy to violate 18 U.S.C.
Sec. 844(h).
Proposed Amendment: Appendix A (Statutory Index) is amended in the
line referenced to 18 U.S.C. Sec. 371 by inserting ``2K2.1 (if a
conspiracy to violate 18 U.S.C. Sec. 924(c)),'' immediately before
``2X1.1''.
Appendix A (Statutory Index) is amended by inserting the following
in the appropriate place by title and section:
``18 U.S.C. Sec. 844(m) 2K1.3
18 U.S.C. Sec. 924(n) 2K2.1''.
Additional Issue for Comment: At the request of the Department of
Justice, the Commission invites comment as to whether a conviction for
a conspiracy to violate section 924(c) should be more closely
referenced to the penalty in 18 U.S.C. Sec. 924(c) or to the guideline
for the underlying offense.
Chapter Two, Part L (Offenses Involving Immigration, Naturalization,
and Passports)
22(A). Issue for Comment: Section 60024 of the Violent Crime
Control and Law Enforcement Act of 1994 increases the statutory penalty
for bringing in or harboring an alien from five to ten years,
establishes a penalty of up to 20 years imprisonment if serious bodily
injury results, and establishes a penalty of imprisonment for any term
of years or life, if death results. In view of these statutory penalty
changes, the Commission invites comment on whether the offense levels
under the applicable guideline, Sec. 2L1.1 (Smuggling, Transporting, or
Harboring an Unlawful Alien), should be increased, and if so, by what
amount.
(B). Issue for Comment: Section 130001 of the Violent Crime Control
and Law Enforcement Act of 1994 alters the penalties for failing to
depart and for reentering the United States in violation of 8 U.S.C.
Secs. 1252(e) and 1326(b), respectively. This provision reduces the
statutory maximum penalties for some offenses from ten years to four
years, and increases the statutory maximum penalties for reentry after
commission of a felony or an aggravated felony from five to ten years,
and from 15 to 20 years, respectively. This provision also establishes
the offense of reentry after conviction for three or more misdemeanors
involving drugs, crimes against the person, or both. The Commission
invites comment on whether amendment of the applicable guideline is
appropriate. Specifically, are the current offense levels provided for
reentry after conviction of a felony or aggravated felony appropriate,
and if not, how should the guidelines be amended? Should the offense
level currently applicable for reentry after deportation for a felony
also be applied to deportation after conviction of three or more
misdemeanors involving drugs, crimes against the person, or both?
(C). Synopsis of Proposed Amendment: This proposed amendment,
published at the request of the Department of Justice, increases the
base offense level for immigration offenses committed by certain means
and increases the offense level if any person sustained bodily injury.
Proposed Amendment: Section 2L1.1(a) is amended by redesignating
subdivision (2) as subdivision (3) and inserting the following new
subdivision:
``(2) 13, if the offense was committed by means set forth in 8
U.S.C. Sec. 1324(a)(1)(A)(i) or 1324(a)(2)(B).''. [[Page 2441]]
Section 2L1.1(b) is amended by inserting the following additional
subdivision:
``(4) If any person sustained bodily injury, increase the offense
level according to the seriousness of the injury:
------------------------------------------------------------------------
Increase in
Degree of bodily Injury level
------------------------------------------------------------------------
(A) Bodily Injury......................................... Add 2.
(B) Serious Bodily Injury................................. Add 4.
(C) Permanent or Life-Threatening Bodily Injury........... Add 6.
(D) If the degree of injury is between that specified in Add 3.
subdivisions (A) and (B).
(E) If the degree of injury is between that specified in Add 5.''.
subdivisions (B) and (C).
------------------------------------------------------------------------
The Commentary to Sec. 2L1.1 captioned ``Application Notes'' is
amended in Note 5 by deleting ``dangerous or inhumane treatment, death
or bodily injury,''.
(D). Synopsis of Proposed Amendment: This proposed amendment,
published at the request of the Department of Justice, suggests an
additional ground for an upward departure for certain cases under
Sec. 2L1.2.
Proposed Amendment: The Commentary to Sec. 2L1.2 captioned
``Application Notes'' is amended in Note 2 by deleting ``a sentence at
or near the maximum of the applicable guideline range'' and inserting
``an upward departure'' in lieu thereof.
23(A). Issue for Comment: Section 130009 of the Violent Crime
Control and Law Enforcement Act of 1994 increases the statutory maximum
penalties for passport and visa offenses to ten years. Previously,
these offenses had statutory maximum penalties of one year or five
years. It also provides an increased statutory maximum penalty of 15
years if the offense is committed to facilitate a drug trafficking
crime, and 20 years if the offense is committed to facilitate an act of
international terrorism. Considering the existing policy statements at
Secs. 5K2.9 and 5K2.15 suggesting an upward departure in cases where
the offense was committed to facilitate another offense or in
furtherance of a terroristic action, the Commission invites comment on
whether, and if so, how, the guidelines should be amended with respect
to passport and visa offenses.
(B). Synopsis of Proposed Amendment: This proposed amendment,
published at the request of the Department of Justice, consolidates
Secs. 2L2.1 and 2L2.2 and provides additional enhancements if the
offense was committed to facilitate certain unlawful conduct.
Proposed Amendment: Sections 2L2.1 and 2L2.2 are deleted in their
entirety and the following is inserted in lieu thereof.
``Sec. 2L2.1. Fraudulently Issuing, Acquiring or Improperly Using
Passports or Visas; False Statements in Respect to Passports and Visas;
Forging, Counterfeiting or Altering Passports or Visas; Trafficking in
International Travel Documents, or Birth Certificates, Driver Licenses
or Other Documents to Fraudulently Obtain Issuance of Passports or
Visas; Use of Passports or Visas to Facilitate Narcotics Trafficking or
International Terrorism.
(a) Base Offense Level:
(1) 26, if the offense was committed to facilitate an act of
international terrorism.
(2) 20, if the offense was committed to facilitate a drug
trafficking crime;
(3) 13, otherwise.
(b) Specific Offense Characteristics
(1) If the offense involves six or more documents or passports,
increase as follows:
------------------------------------------------------------------------
Passports
Number of documents increase in
level
------------------------------------------------------------------------
(A) 6-24.................................................. Add 2.
(B) 25-99................................................. Add 4.
(C) 100 or more........................................... Add 6.
------------------------------------------------------------------------
(2) If the defendant is an unlawful alien who has been previously
deported (voluntarily or involuntarily) on one or more occasions prior
to the instant offense, increase by 2 levels.
(3) If the offense was committed to facilitate racketeering
activity, increase by 3 levels.
(4) If the offense was committed to facilitate unlawful flight from
justice, increase by 3 levels.
(5) If the defendant committed the offense other than for profit
(except as provided in paragraph (3) or (4)), decrease by 3 levels.
Commentary
Statutory Provisions: 8 U.S.C. Secs. 1160(b)(7)(A), 1185(a)(3),
(4), (5), 1325(b), (c); 18 U.S.C. Secs. 911, 1015, 1028, 1423-1427,
1541-1544, 1546, 1547.
Application Notes:
1. Where it is established that multiple documents are part of a
set intended for use by one person, treat the documents in the set as
one document for the purposes of subsection (b).
2. If the offense involved possession of a dangerous weapon, an
upward departure may be warranted.
3. `Racketeering activity' is defined at 18 U.S.C. Sec. 1961.
4. `Drug trafficking crime' is defined at 18 U.S.C. Sec. 929(a).
5. `International terrorism' is defined at 18 U.S.C. Sec. 2331.
6. If two or more factors warranting an upward departure as
enumerated in subsection (b) apply, only the paragraph specifying the
highest level will be used.
7. `For profit' means for financial gain or commercial advantage.
8. If the offense was committed only for the purpose of concealing
age, a downward departure may be warranted.
9. For the purposes of Chapter Three, Part D (Multiple Counts), a
conviction for unlawfully entering or remaining in the United States
(Sec. 2L1.2) arising from the same course of conduct is treated as a
closely related count, and is therefore grouped with an offense covered
by this guideline.''.
Chapter Three (Adjustments)
Chapter Five, Part K (Departures)
24. Issue for Comment: Section 120004 of the Violent Crime Control
and Law Enforcement Act of 1994 directs the Commission to provide an
appropriate enhancement for any felony that involves or is intended to
promote international terrorism (unless such involvement or intent is
itself an element of the crime). Considering the existing policy
statement in Sec. 5K2.15 recommending an upward departure in such
cases, the Commission invites comment on whether, and if so how, the
guidelines should be amended to address this directive appropriately.
For example, should the Commission add an adjustment to Chapter Three
that would apply to all Chapter Two offenses and that would prescribe a
specific increase in offense level if the offense involved or was
intended to promote terrorism? If so, what level of enhancement would
be appropriate? Or, should the Commission amend Sec. 4B1.1 (Career
Offender) to enhance the sentences of such defendants under this
section as if they were career offenders?
25(A). Issue for Comment: Section 140008 of the Violent Crime
Control and Law Enforcement Act of 1994 directs the Commission to
provide an enhancement applicable to a defendant 21 or older who
involved a person under 18 in the offense. The directive further
specifies that the Commission consider the severity of the crime, the
number of minors used, the relevance of the proximity in age between
the offender and the minor, and the fact that involving a minor in a
crime of violence is often more serious than involving a minor in a
drug offense (for which the Commission has already provided a
[[Page 2442]] two-level enhancement). The Commission invites comment as
to whether it should implement section 140008 by creating (1) a
generally applicable departure policy statement in Chapter Five, Part K
(Departures), or (2) a Chapter Three adjustment. The Commission also
invites comment as to whether, if a Chapter Three adjustment is
appropriate, the adjustment should be two levels, commensurate with the
adjustment for abuse of position of trust, or a higher or lower number
of levels.
(B). Synopsis of Proposed Amendment: This proposed amendment,
published at the request of the Department of Justice, sets forth
Chapter Three adjustments for using a minor to commit a crime.
Proposed Amendment: Part B of Chapter Three is amended by
redesignating Sec. 3B1.4 as Sec. 3B1.5 and by inserting the following
new section:
``Sec. 3B1.4. Using a Minor to Commit a Crime
(a) If a defendant 21 years of age or older used or attempted to
use any person less than 18 years of age with the intent that the minor
would commit an offense or assist in avoiding detection of or
apprehension for an offense, increase by 2 levels.
(b) If the defendant used or attempted to use 5 or more minors,
increase by 1 additional level; if the defendant used or attempted to
use 15 or more minors, increase by 2 additional levels.
Commentary
Application Notes:
1. To `use a person less than 18 years of age' includes
soliciting, procuring, recruiting, counseling, encouraging, training,
directing, commanding, intimidating, or otherwise using such a person.
2. Do not apply this adjustment if the offense guideline
specifically incorporates this factor. However, if the adjustment under
this section is greater, apply this section in lieu of the adjustment
under the offense guideline.''.
26(A). Issue for Comment: Section 150001 of the Violent Crime
Control and Law Enforcement Act of 1994 creates a new section, 18
U.S.C. Sec. 521, that provides a statutory sentence enhancement of up
to ten years if a person commits a specified felony controlled
substance offense or crime of violence and participates in, intends to
further the felonious activities of, or seeks to maintain or increase
his or her position in, a criminal street gang. Section 150001 defines
a ``criminal street gang'' as an ongoing group, club, organization, or
association of five or more persons: (A) that has as one of its primary
purposes the commission of one or more of the following offenses: a
federal felony involving a controlled substance for which the maximum
penalty is not less than five years, a federal felony crime of violence
that has as an element the use or attempted use of physical force
against another, and the corresponding conspiracies; (B) whose members
engage (or have engaged during the past five years) in a continuing
series of these same offenses; and (C) the activities of which affect
interstate or foreign commerce.
The Commission invites comment on whether, and how, it should
incorporate into the sentencing guidelines the statutory sentence
enhancement described above. Specifically, the Commission invites
comment as to whether it should implement section 150001 by creating a
generally applicable departure policy statement in Chapter Five, Part K
(Departures) providing that if the enhancement contained in 18 U.S.C.
Sec. 521 (Criminal Street Gangs) is determined to apply, the court may
increase the sentence above the authorized guideline range.
Alternatively, the Commission could create a Chapter Three adjustment
that would apply to all Chapter Two offenses and that would provide a
specific enhancement.
(B). Synopsis of Proposed Amendment: This proposed amendment is
published at the request of the Department of Justice. The proposed
amendment would increase the offense level provided under Secs. 2K2.1
and 2K2.5 by four levels if the defendant committed the offense in
connection with a criminal street gang. In addition, the amendment
would increase the offense level provided under Sec. 2K2.5 by two to
seven levels, depending on the nature of the possession or use of the
firearm involved in the offense. With respect to the amendment to
Sec. 2K2.1, the enhancement would apply in addition to the existing
four-level enhancement for an offense involving a firearm that was used
or possessed in connection with another felony offense, or with
knowledge or reason to believe it would be used or possessed in such
connection. If a Chapter Three adjustment is adopted that provides a
general enhancement for offenses related to criminal street gangs, that
amendment would replace the portion of this amendment dealing with
criminal street gangs.
Proposed Amendment: Section 2K2.1(b) is amended by inserting the
following additional subdivision:
``(7) If the defendant committed the offense as a member of, on
behalf of, or in association with a criminal street gang, increase by 4
levels.''.
The Commentary to Sec. 2K2.1 captioned ``Application Notes'' is
amended by inserting the following additional Note:
``20. `Criminal street gang' is defined as a group, club,
organization, or association of five or more persons whose members
engage, or have engaged within the past five years, in a continuing
series of crimes of violence and/or controlled substance offenses as
defined in Sec. 4B1.2 (Definitions of Terms Used in Section 4B1.1).''.
Section 2K2.5(b) is amended by inserting the following additional
subdivision:
``(2) If the defendant was convicted of violating 18 U.S.C.
Sec. 922(q) and (A) the firearm was discharged, increase by 7 levels;
(B) the firearm was otherwise used, increase by 6 levels; (C) the
firearm was brandished, increased by 5 levels; (D) the firearm was
loaded, increase by 3 levels; (E) an express threat of death was made
or ammunition was possessed, increase by 2 levels.
(3) If the defendant was convicted of violating 18 U.S.C.
Sec. 922(q) and committed the offense as a member of, on behalf of, or
in association with a criminal street gang, increase by 4 levels.''.
The Commentary to Sec. 2K2.5 captioned ``Application Notes'' is
amended in Note 4 by deleting ``federal facility, federal court
facility, or school zone'' and inserting in lieu thereof ``federal
facility or federal court facility.''
The Commentary to Sec. 2K2.5 captioned ``Application Notes'' is
amended by inserting the following additional Note:
``5. `Criminal street gang' is defined as a group, club,
organization, or association of five or more persons whose members
engage, or have engaged within the past five years, in a continuing
series of crimes of violence and/or controlled substance offenses as
defined in Sec. 4B1.2 (Definitions of Terms Used in Section 4B1.1).''.
Chapter Three, Part A (Victim-Related Adjustments)
27(A). Issue for Comment: Section 240002 of the Violent Crime
Control and Law Enforcement Act of 1994 directs the Commission to
ensure that the guidelines provide sufficiently stringent punishment
for a defendant convicted of a ``crime of violence'' against an
``elderly victim.'' The directive requires that the guidelines: (1)
provide for increasingly severe punishment commensurate with the degree
of physical harm caused to the elderly victim; (2) take appropriate
account of the vulnerability of the victim; and (3) provide enhanced
punishment for a [[Page 2443]] subsequent conviction for a crime of
violence against an elderly victim.
Currently, the guidelines account for victim harm in a number of
ways. For federal offenses that are most apt to cause physical harm
(e.g., assault, criminal sexual abuse, kidnapping, robbery), the
guidelines expressly require a higher sentence, regardless of the
victim's age, if the victim sustained bodily injury. Additionally,
Sec. 3A1.1 (Vulnerable Victim), provides a two-level upward adjustment
if the defendant knew or should have known that a victim was unusually
vulnerable due to, among other factors, the victim's age. Furthermore,
the guidelines, both generally, through Sec. 5K2.0 (Grounds for
Departure), and specifically, through, e.g., Sec. 5K2.8 (Extreme
Conduct) (involving unusually heinous, cruel, brutal, or degrading
conduct), invite courts to depart upward for circumstances that
potentially involve elderly victims. The guidelines also account for
the seriousness, recency, and relatedness of a defendant's prior record
of criminal conduct. See Chapter Four (Criminal History and Criminal
Livelihood).
The Commission invites comment on whether the guidelines provide
sufficiently stringent punishment for a defendant convicted of a crime
of violence against an elderly victim. If not, the Commission invites
comment on how, and to what extent, existing factors might be modified
as well as how, and to what extent, additional factors should be
considered.
(B). Synopsis of Proposed Amendment: This proposed amendment
implements the third criterion of the directive in section 240002,
pertaining to enhanced punishment for a defendant with a prior
conviction for a crime of violence against an elderly victim. This
amendment recommends a departure under Sec. 3A1.1 (Vulnerable Victim).
Proposed Amendment: The Commentary to Sec. 3A1.1 captioned
``Application Notes'' is amended by inserting the following additional
note:
``3. If (A) an adjustment applies under this section; and (B) 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.''.
(C). Issue for Comment: Section 250002 of the Violent Crime Control
and Law Enforcement Act of 1994 provides enhanced imprisonment
penalties of up to five years when certain fraud offenses involve
telemarketing conduct and enhanced imprisonment penalties of up to ten
years when a telemarketing fraud offense involves victimizing ten or
more persons over the age of 55 or targeting persons over the age of
55. Section 250003 directs the Commission to review and, if necessary,
amend the sentencing guidelines to ensure that victim-related
adjustments for fraud offenses against older victims (defined as over
the age of 55) are adequate.
Violations of fraud statutes are covered under Sec. 2F1.1 (Fraud
and Deceit), which increases penalties proportionately based on a
number of factors, including the amount of loss sustained by victims,
the sophistication of the offense, and whether particular types of harm
occurred. In addition, a two-level increase under Sec. 3A1.1
(Vulnerable Victim) applies if the fraud exploited vulnerable victims,
including victims who are vulnerable because of age.
The Commission invites comment on whether the current victim-
related adjustments are adequate to address such cases or whether
Sec. 2F1.1 or Sec. 3A1.1 should be amended. Focusing on Sec. 3A1.1 as a
possible vehicle for remedying any inadequately addressed concerns
regarding older victims, the Commission specifically invites comment as
to how this adjustment might best be amended. For example, should
commentary be added to establish a rebuttable presumption related to
age? If so, what threshold victim age should be equated with victim
vulnerability (recognizing that section 250002 uses age 55 for fraud
offenses while section 240002 uses age 65 for certain violent
offenses)? If such a presumption for older victims is established,
should there also be a counterpart presumptive age for vulnerability of
young victims (e.g., victims under age 16)? In lieu of a rebuttable
presumption, should Sec. 3A1.1 be amended to require an upward
adjustment in the offense level if the offense involved victim(s) older
or younger than the designated threshold ages? The Commission also
invites comment on whether the provisions concerning vulnerable victims
should be different for telemarketing fraud than other types of fraud
offenses.
Chapter Four, Part B (Career Offenders and Criminal Livelihood)
28. Issue for Comment: Section 70001 of the Violent Crime Control
and Law Enforcement Act of 1994 amends 18 U.S.C. Sec. 3559 to mandate a
sentence of life imprisonment for a defendant convicted of a ``serious
violent felony'' if the defendant has been convicted on separate prior
occasions in federal or state court of two or more serious violent
felonies or one or more serious violent felonies and one or more
serious drug offenses. The Commission invites comment on how it should
incorporate into the sentencing guidelines the amendments to 18 U.S.C.
Sec. 3559. In particular, the Commission invites comment as to whether
the career offender guidelines should be replaced with a new guideline
incorporating the current career offender provisions and the statutory
requirements of section 70001. Alternatively, the Commission could add
an application note to Sec. 4B1.1 directing the court to refer to 18
U.S.C. Sec. 3559 for offenses to which this statute applies. The
Commission also invites comment as to whether no action need be taken
because Sec. 5G1.1 already provides instructions on the application of
mandatory statutory penalties that conflict with the guidelines.
Chapter Five, Part C (Imprisonment)
29. Synopsis of Proposed Amendment: Section 80001(b) of the Violent
Crime Control and Law Enforcement Act of 1994 (the ``Safety Valve''
provision) authorized and directed the Commission to promulgate
guidelines and policy statements to implement section 80001(a),
providing an exception to otherwise applicable statutory mandatory
minimum sentences for certain defendants convicted of specified drug
offenses. Pursuant to this provision, the Commission promulgated
Sec. 5C1.2. Under the terms of the congressionally-granted authority,
this amendment is temporary unless repromulgated in the next amendment
cycle under regularly applicable amendment procedures. See Pub. L. No.
100-182, Sec. 21, set forth as an editorial note under 28 U.S.C.
Sec. 994.
Proposed Amendment: Pursuant to its ``permanent'' amendment
authority under 28 U.S.C. Sec. 994(p), the Commission proposes to
repromulgate Sec. 5C1.2, as set forth in the Guidelines Manual
effective November 1, 1994. See also 59 Fed. Reg. 52210-13.
Additional Issue for Comment: The Commission also invites comment
on any aspect of Sec. 5C1.2 or other guideline that should be modified
to effectuate congressional intent regarding the ``safety valve''
provision.
Chapter Five, Part E (Restitution, Fines, Assessments, Forfeitures)
30. Synopsis of Proposed Amendment: Section 40113 of the Violent
Crime Control and Law Enforcement Act of 1994 requires mandatory
restitution for sexual abuse and sexual exploitation of children
offenses under 18 U.S.C. Secs. 2241-2258. These provisions also require
that compliance with a restitution order be a condition of probation or
supervised release. When there is more than one [[Page 2444]] offender,
the court can apportion liability for payment of the full amount of
restitution. When the court finds that more than one victim has
sustained a loss requiring restitution, the court must provide full
restitution for each victim, but may provide different payment
schedules to the victims. A victim or the offender may petition the
court for modification of the restitution order in light of a change in
the economic circumstances of the victim. Although the sections are
termed ``mandatory restitution,'' the statutes provide for the court to
order less than the full amount or no restitution at all if the court
finds ``the economic circumstances of the defendant are not sufficient
to satisfy the order in the foreseeable future.'' These new mandatory
restitution provisions have broader definitions of loss than 18 U.S.C.
Sec. 3663, and apply ``notwithstanding section 3663, and in addition to
any civil or criminal penalty authorized by law.'' Congress has also
added similar mandatory restitution provisions for offenses involving
telemarketing fraud (18 U.S.C. Sec. 2327) and domestic violence (18
U.S.C. Sec. 2264). The proposed amendment alerts the courts to the new
statutory requirements and directs application of the statutory
provisions if there is a conflict between the statutory provisions and
the guidelines.
Proposed Amendment: The Commentary to Sec. 5E1.1 is amended by
inserting the following immediately before ``Background'':
``Application Note:
1. In the case of a conviction under certain statutes, additional
requirements regarding restitution apply. See 18 U.S.C. Secs. 2248 and
2259 (pertaining to convictions under 18 U.S.C. Secs. 2241-2258 in
connection with sexual abuse or exploitation of minors); 18 U.S.C.
Sec. 2327 (pertaining to convictions under 18 U.S.C. Secs. 1028-1029,
1341-1344 in connection with telemarketing fraud); 18 U.S.C. Sec. 2264
(pertaining to convictions under 18 U.S.C. Secs. 2261-2262 in
connection with domestic violence). To the extent that any of the
above-noted statutory provisions conflict with the provisions of this
guideline, the applicable statutory provision shall control.''.
Chapter Seven (Violations of Probation and Supervised Release)
31(A). Synopsis of Proposed Amendment: Section 110505 of the
Violent Crime Control and Law Enforcement Act of 1994, a version of
which was proposed by the Commission, amends 18 U.S.C. Sec. 3583(e)(3)
by specifying that a defendant whose supervised release term is revoked
may not be required to serve more than five years in prison if the
offense that resulted in the term of supervised release is a class A
felony. The provision also amends section 3583(g) by eliminating the
mandatory re-imprisonment period of at least one-third of the term of
supervised release if the defendant possesses a controlled substance or
a firearm, or refuses to participate in drug testing. Finally, the
provision expressly authorizes the court to order an additional,
limited period of supervision following revocation of supervised
release and re-imprisonment. The courts of appeal were split as to
whether a sentencing court had authority to reimpose a term of
supervised release upon revocation of the original term of supervised
release.
Chapter Seven of the Guidelines Manual contains the policy
statements that must be considered by courts when determining the
sentence to be imposed upon revocation of probation or supervised
release. The policy statements were originally drafted under the
assumption that reimposition of supervised release was possible. The
proposed amendment eliminates outdated statutory references in those
policy statements.
Proposed Amendment: Section 7B1.3(g)(2) is amended by deleting ``,
to the extent permitted by law,''.
The Commentary to Sec. 7B1.3 captioned ``Application Notes'' is
amended in Note 2 by deleting the second sentence and inserting in lieu
thereof:
``This statute, as amended by Public Law 103-322, effective
September 13, 1994, expressly authorizes the court to order an
additional, limited period of supervision following revocation of
supervised release and reimprisonment.'';
By deleting Note 3 in its entirety; and by renumbering the
remaining notes accordingly.
(B). Synopsis of Proposed Amendment: Section 20414 of the Violent
Crime Control and Law Enforcement Act of 1994 makes mandatory a
condition of probation requiring that the defendant refrain from any
unlawful use of a controlled substance. 18 U.S.C. Sec. 3563(a)(4). The
section also establishes a condition that the defendant, with certain
exceptions, submit to periodic drug tests. The existing mandatory
condition of probation requiring the defendant not to possess a
controlled substance remains unchanged. 18 U.S.C. Sec. 3563(a)(3).
Similar requirements are made with respect to conditions of supervised
release. 18 U.S.C. Sec. 3583(d).
Section 110506 of the Violent Crime Control and Law Enforcement Act
of 1994, a version of which was proposed by the Commission, mandates
revocation of probation and a term of imprisonment if the defendant
unlawfully possesses a controlled substance (in violation of section
3563(a)(3)), possesses a firearm, or refuses to comply with drug
testing (in violation of section 3563(a)(4)). It does not require
revocation in the case of use of a controlled substance (although use
presumptively may establish possession). No minimum term of
imprisonment is required other than a sentence that includes a ``term
of imprisonment'' consistent with the sentencing guidelines and
revocation policy statements. Similar requirements are made in 18
U.S.C. Sec. 3583(g) with respect to conditions of supervised release.
See discussion of section 110505, supra.
Section 20414 permits ``an exception in accordance with United
States Sentencing Commission guidelines'' from the mandatory revocation
provisions of section 3565(b), ``when considering any action against a
defendant who fails a drug test administered in accordance with
[section 3563(a)(4)].'' The exception from the mandatory revocation
provisions appears limited to a defendant who fails the test and would
not cover a defendant who refuses to take the test.
In at least two circuits (the Fourth and Tenth), a defendant who
failed a drug test was presumed to have possessed the drugs and
consequently was subject to the mandatory revocation provisions.
However, in other circuits, failing a drug test was considered no more
than evidence of possession and a separate finding of possession was
required by the court. The apparent congressional view of the matter is
that failure of a drug test may or may not be subject to mandatory
revocation, as evidenced by the conditional statement ``if the results
[of the drug test] are positive [and] the defendant is subject to
possible imprisonment.'' 18 U.S.C. Sec. 3563(a)(4). It is not clear
whether the Fourth and Tenth Circuits will consider their view of the
issue superseded by this provision.
The proposed amendment adds commentary that expressly reflects the
statutory exception from mandatory revocation if the offender fails a
drug test and amends the Commentary to Chapter Seven to eliminate
outdated statutory references.
Proposed Amendment: The Commentary to Sec. 7B1.4 captioned
``Application Notes'' is amended by deleting Notes 5 and 6 in their
entirety [[Page 2445]] and by inserting in lieu thereof the following
new notes:
``5. Under 18 U.S.C. Sec. 3565(b), upon a finding that a defendant
violated a condition of probation by being in possession of a
controlled substance or firearm, or by refusing to comply with drug
testing, the court is required to `revoke the sentence of probation and
resentence the defendant under subchapter A [of title 18, Chapter 227]
to a sentence that includes a term of imprisonment.' Under 18 U.S.C.
Sec. 3583(g), upon a finding that a defendant violated a condition of
supervised release by being in possession of a controlled substance,
the court is required to `revoke the term of supervised release and
require the defendant to serve a term of imprisonment not to exceed the
maximum term of imprisonment authorized under 18 U.S.C.
Sec. 3583(e)(3).'
6. Under 18 U.S.C. Sec. 3563(a), `[t]he court shall consider
whether the availability of appropriate substance abuse treatment
programs, or an individual's current or past participation in such
programs, warrants an exception from the rule of section 3565(b) when
considering any action against a defendant who fails a drug test
administered in accordance with 18 U.S.C. Sec. 3563(a)(4).'''.
Appendix A (Statutory Index)
32. Synopsis of Proposed Amendment: This proposed amendment makes
Appendix A more comprehensive by adding new offenses enacted by the
Violent Crime Control and Law Enforcement Act of 1994 (Public Law 103-
322). The amendment addresses provisions found in sections 40221,
60005, 60009, 60012, 60013, 60015, 60019, 60021, 60023, 90106, 110103,
110503, 110517, 120003, 160001, 170201, 180201, 320108, 320601, 320602,
320603, 320902, of the Act. In addition, the amendment adds new
offenses enacted by section 11 of the Fresh Cut Flowers and Fresh Cut
Greens Promotion and Information Act of 1993 (Public Law 103-190),
section 202 of the Food Stamp Program Improvements Act of 1994 (Public
Law 103-225), sections 312 and 313 of the Social Security Independence
and Program Improvements Act of 1994 (Public Law 103-296), and sections
3, 4, and 5 of the Domestic Chemical Diversion Act of 1993 (Public Law
103-200). Furthermore, the amendment conforms Appendix A to revisions
in existing statutes made by the above Acts. Finally, the amendment
revises the titles of several offense guidelines to better reflect
their scope.
Proposed Amendment: Appendix A (Statutory Index) is amended by
inserting the following at the appropriate place by title and section:
``7 U.S.C. Sec. 2018(c) Sec. 2N2.1'',
``7 U.S.C. Sec. 6810 Sec. 2N2.1'',
``18 U.S.C. Sec. 37 2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2,
2A2.3, 2A3.1, 2A3.4, 2A4.1, 2A5.1, 2A5.2, 2B1.3, 2B3.1, 2K1.4'',
``18 U.S.C. Sec. 113(a)(1) 2A2.1'',
``18 U.S.C. Sec. 113(a)(2) 2A2.2'',
``18 U.S.C. Sec. 113(a)(3) 2A2.2'',
``18 U.S.C. Sec. 113(a)(5) 2A2.3'',
(Class A misdemeanor provisions only)
``18 U.S.C. Sec. 113(a)(6) 2A2.2'',
``18 U.S.C. Sec. 113(a)(7) 2A2.3'',
``18 U.S.C. Sec. 333 2F1.1'',
``18 U.S.C. Sec. 470 2B5.1, 2F1.1'',
``18 U.S.C. Sec. 668 2B1.1'',
``18 U.S.C. Sec. 880 2B1.1'',
``18 U.S.C. Sec. 922(w) 2K2.1'',
``18 U.S.C. Sec. 924(i) 2A1.1, 2A1.2'',
``18 U.S.C. Sec. 924(j) 2K2.1'',
``18 U.S.C. Sec. 924(m) 2K2.1'',
``18 U.S.C. Sec. 1033 2B1.1, 2F1.1, 2J1.2'',
``18 U.S.C. Sec. 1118 2A1.1, 2A1.2'',
``18 U.S.C. Sec. 1119 2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1'',
``18 U.S.C. Sec. 1120 2A1.1, 2A1.2, 2A1.3, 2A1.4'',
``18 U.S.C. Sec. 1121 2A1.1, 2A1.2'',
``18 U.S.C. Sec. 1716D 2Q2.1'',
``18 U.S.C. Sec. 2114(b) 2B1.1'',
``18 U.S.C. Sec. 2332a 2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A1.5, 2A2.1,
2A2.2, 2B1.3, 2K1.4'',
``18 U.S.C. Sec. 2258(a),(b) 2G2.1, 2G2.2'',
``18 U.S.C. Sec. 2261 2A1.1, 2A1.2, 2A2.1, 2A2.2, 2A2.3, 2A3.1,
2A3.4, 2A4.1, 2B3.1, 2B3.2, 2K1.4'',
``18 U.S.C. Sec. 2262 2A1.1, 2A1.2, 2A2.1, 2A2.2, 2A2.3, 2A3.1,
2A3.4, 2A4.1, 2B3.1, 2B3.2, 2K1.4'',
``18 U.S.C. Sec. 2280 2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2,
2A2.3, 2A4.1, 2B1.3 2B3.1, 2B3.2, 2K1.4'',
``18 U.S.C. Sec. 2281 2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2,
2A2.3, 2A4.1, 2B1.3, 2B3.1, 2B3.2, 2K1.4'',
``18 U.S.C. Sec. 2423(b) 2A3.1, 2A3.2, 2A3.3 [, 2G1.2],
``21 U.S.C. Sec. 843(a)(9) 2D3.2'',
``21 U.S.C. Sec. 843(c) Sec. 2D3.1'',
``21 U.S.C. Sec. 849 Sec. 2D1.2'',
``21 U.S.C. Sec. 960(d)(3), (4) 2D1.11'',
``21 U.S.C. Sec. 960(d)(5) 2D1.13'',
``21 U.S.C. Sec. 960(d)(6) 2D3.2'',
``42 U.S.C. Sec. 1307(b) 2F1.1''.
In the line referenced to 18 U.S.C. Sec. 113(a) by inserting ``(for
offenses committed prior to September 13, 1994)'' immediately following
``2A2.1'';
In the line referenced to 18 U.S.C. Sec. 113(b) by inserting ``(for
offenses committed prior to September 13, 1994)'' immediately following
``2A2.2'';
In the line referenced to 18 U.S.C. Sec. 113(c) by inserting ``(for
offenses committed prior to September 13, 1994)'' immediately following
``2A2.2'';
In the line referenced to 18 U.S.C. Sec. 113(f) by inserting ``(for
offenses committed prior to September 13, 1994)'' immediately following
``2A2.2'';
In the line referenced to 18 U.S.C. Sec. 1153 by inserting
``2A2.3,'' immediately before ``2A3.1'';
In the line referenced to 18 U.S.C. Sec. 2114 by deleting ``2114''
and inserting in lieu thereof ``2114(a)'';
And in the line referenced to 18 U.S.C. Sec. 2423 by deleting
``2423'' and by inserting in lieu thereof ``2423(a)''.
Section 2D3.1 is amended in the title by inserting at the end ``;
Unlawful Advertising Relating to Schedule I Controlled Substances''.
Section 2D3.2 is amended by inserting ``or Listed Chemicals''
immediately after ``Controlled Substances''.
Section 2Q2.1 is amended by deleting the title and inserting in
lieu thereof ``Offenses Involving Fish, Wildlife, and Plants''.
II. Amendments Relating to Drug Offense Guidelines and Role in the
Offense
This Part contains two approaches to the revision of the guidelines
for controlled substance offenses.
The premise of Approach 1 (proposed amendments 33-42) is that the
type and quantity of the controlled substance involved in the offense,
as adjusted by the defendant's role in the offense, is an important and
appropriate measure of the seriousness of the offense, but that the
Commission assigned too much weight to drug quantity in constructing
its initial guidelines. Therefore, the proposed amendments in Approach
1 would compress the Drug Quantity Table; limit its impact on lower-
level defendants; somewhat increase the weight given to weapons,
serious bodily injury, and leadership role; and address anomalies in
the offense levels assigned to ``crack'' offenses and marijuana-plant
offenses compared to other drug offenses. In addition, Approach 1
contains proposed amendments, addressing narrower issues, that would
improve and make fairer the operation of these guidelines. The proposed
amendments are set forth separately because they address different
issues and, for the most part, operate independently.
The premise of Approach 2 is that the use of drug quantity to
measure the seriousness of drug trafficking offenses should be
abandoned or severely limited. Amendment 43 displays this approach.
[[Page 2446]]
Approach 1
33. Synopsis of Proposed Amendment: In the 1994 amendment cycle,
the Commission took a first step in compressing the Drug Quantity Table
by eliminating levels 40 and 42 from the table. Three options for
compressing the Drug Quantity Table further are shown in Attachment 1.
The thrust of this proposed amendment is that although drug quantity
(in conjunction with role in the offense) is an appropriate factor in
assessing offense seriousness (drug quantity directly measures the
scale of the offense and potential for harm) and thus should be
retained, the Commission's current guidelines contain too many quantity
distinctions. That is, the drug table increases too quickly for small
differences in quantity, particularly at certain offense levels. Under
this proposal, the Drug Quantity Table would be compressed so that its
contribution to the determination of the offense level would be
somewhat reduced.
Three options are shown. Although the different options reflect
somewhat different rationales, the effect of each option would be to
reduce the number of gradations in the Drug Quantity Table, thereby
making the guidelines somewhat less sensitive to drug quantity. Note
that each one-level increment in offense level changes the final
guideline range by about 12 percent above level 19, and increments of
more than one level are compounded (e.g., a six-level change roughly
doubles or halves the final guideline range). Thus, reductions of 2, 4,
or 6 levels, as shown in the various options below, can have a
substantial impact on the final guideline range.
For ease of presentation, only the current and proposed offense
levels for heroin offenses are shown. Because the controlled substances
in the Drug Quantity Table are related by established ratios, the
offense levels for the other controlled substances would be conformed
accordingly.
Option A. When the Commission initially developed the Drug Quantity
Table, it keyed the offense level for 1 KG of heroin (ten-year
mandatory minimum) at level 32 (121-151 months for a first offender)
and 100 grams of heroin (five-year mandatory minimum) at level 26 (63-
78 months for a first offender) because these guideline ranges
included, or were close to, the five- and ten-year mandatory minimum
sentences. However, offense levels 30 (97-121 months) and 24 (51-63
months) also include the five- and ten-year mandatory minimum
sentences, as do offense levels 31 (108-135 months) and 25 (57-71
months). Option A displays how the heroin offense levels would look if
the Commission used the offense levels corresponding to the lowest
(rather than the highest) guideline ranges that include the statutory
minimum sentence. The drug table is compressed because offense levels
lower than level 22 are not changed (offense levels 22 and 24 from the
current Drug Quantity Table are combined).
Option B. The legislative history of the Anti-Drug Abuse Act of
1986 provides support for the proposition that the heartland of the
conduct that the Congress envisioned it was addressing with the ten-
year mandatory minimum was the ringleader in large scale drug offenses.
Senator Byrd, then the Senate Minority Leader, explained the intent
during floor debate:
For the kingpins--the masterminds who are really running these
operations--and they can be identified by the amount of drugs with
which they are involved--we require a jail term upon conviction. If
it is their first conviction, the minimum term is 10 years. * * *
Our proposal would also provide mandatory minimum penalties for the
middle-level dealers as well. Those criminals would also have to
serve time in jail. The minimum sentences would be slightly less
than those for the kingpins, but they nevertheless would have to go
to jail--a minimum of 5 years for the first offense. 132 Cong. Rec.
S. 14300 (Sept. 30, 1986).
See also 132 Cong. Rec. 22993 (Oct. 11, 1986) (statement of Rep.
Lafalce) (``the bill * * * acknowledge[s] that there are differing
degrees of culpability in the drug world. Thus, separate penalties are
established for the biggest traffickers, with another set of penalties
for other serious drug pushers''); H.R. Rep. No. 9-845, 99th Cong., 2d
Sess., pt. 1 at 11-17 (1986) (construing penalty provisions of a
comparable bill, H.R. 5394, similarly).
The typical or heartland role adjustment for kingpins in such large
scale offenses is four levels. Thus, the Commission's current drug
offense levels (when applied in conjunction with the role in the
offense enhancements), in effect, result in double counting. That is,
although Congress envisioned a level 32 offense for a first offender,
large-scale dealer with one kilogram of heroin (or level 30, see Option
A), the Commission has provided a level 36 for the heartland case
(level 32 from the Drug Quantity Table plus a four-level increase from
Sec. 3B1.1). Similarly, the mid-level dealer at whom the five-year
mandatory minimum was aimed likely will receive a two-level enhancement
for role in the offense. If so, the Commission has assigned an offense
level of 28 (26 from the Drug Quantity Table plus two levels from
Sec. 3B1.1) to the heartland case for which Congress envisioned an
offense level of 26 (or level 24, see discussion at Option A). Option B
shows how the heroin offense levels would look if adjusted to avoid
this double counting (pegging the reductions to levels 32 and 26, the
highest offense levels containing the mandatory minimum penalties).
Option C. This option combines Options A and B, pegging the
quantity for the ten-year mandatory minimum at level 26 (level 32 minus
two levels from Option A and four levels from Option B) and the
quantity for the five-year mandatory minimum at level 22 (level 26
minus two levels from Option A and two levels from Option B). It is to
be noted, however, that the resulting offense level for the five-year
mandatory minimum quantity minus a four-level adjustment for a minimal
role and a three-level adjustment for acceptance of responsibility
would produce a guideline range with a minimum of less than 24 months,
thus seemingly conflicting with the recent congressional instruction in
Section 80001 of the Violent Crime Control and Law Enforcement Act of
1994. In contrast, the lowest offense level provided under Options A
and B for such cases has a lower limit (24 months), consistent with
this congressional instruction.
Proposed Amendment: Section 2D1.1(c) is amended by revision of the
quantities associated with offense level 24 and greater as shown in the
following chart. Note: The amounts shown are the minimum quantities
associated with each offense level offense (e.g., in the current
guidelines, offense level 38 covers 30 KG or more of heroin). For
simplicity of presentation, only the offense levels for heroin offenses
are shown. The offense levels for other controlled substances would be
adjusted accordingly (e.g., under Sec. 2D1.1(c), 5 kg of cocaine has
the same offense level as 1 kg of heroin; the proposed guideline
offense levels would maintain this relationship).
Offense Levels for Heroin Distribution [[Page 2447]]
Offenses (Current Guidelines and Options A, B, C)
------------------------------------------------------------------------
Offense
level Current guidelines Option A Option B Option C
------------------------------------------------------------------------
38...... 30 KG........................... ........ ........ ........
36...... 10 KG........................... 30 KG... ........ ........
34...... 3 KG............................ 10 KG... 30 KG... ........
32...... 1 KG............................ 3 KG.... 10 KG... 30 KG.
30...... 700 G........................... 1 KG.... 3 KG.... 10 KG.
28...... 400 G........................... 700 G... 1 KG.... 3 KG.
26...... 100 G........................... 400 G... 300 G... 1 KG.
24...... 80 G............................ 100 G... 100 G... 300 G.
22...... 60 G............................ 60 G.... 60 G.... 100 G.
20...... 40 G............................ 40 G.... 40 G.... 40 G.
18...... 20 G............................ 20 G.... 20 G.... 20 G.
16...... 10 G............................ 10 G.... 10 G.... 10 G.
14...... 5 G............................. 5 G..... 5 G..... 5 G.
12...... less than 5G.................... less less less
than 5G. than 5G. than
5G.
------------------------------------------------------------------------
34. Synopsis of Proposed Amendment: This proposed amendment would
limit the impact of drug quantity in the case of defendants who qualify
for a mitigating role adjustment under Sec. 3B1.2 (Mitigating Role). A
number of commentators have argued that the current guidelines over-
punish low-level defendants when the sentence is driven in large part
by the quantity of drugs involved in the offense. These commentators
have recommended that, above a certain level, drug quantity should not
further increase the offense level for defendants with minor or minimal
roles. That is, for example, the difference between 20,000 kilos and
200,000 kilos of marijuana may be relevant to the offense level for the
major actors in the offense but not relevant in determining the
culpability and offense level for the deckhands or offloaders involved
with that quantity. Historically, the U.S. Parole Commission limited
the impact of drug quantity for low-level defendants in its parole
release guidelines.
Under this proposed amendment, if the defendant qualified for a
minor or minimal role, the base offense level from the Drug Quantity
Table would not exceed level [28] even if the drug quantity table
otherwise would have called for a higher offense level. In addition,
the applicable role adjustment from Sec. 3B1.2 (Mitigating Role) will
further reduce the offense level by two or four levels.
The bracketing of offense level 28 in the proposed amendment
indicates that the Commission requests comment on whether offense level
28 is the appropriate offense level for use in this amendment or
whether the offense level should be higher or lower.
Proposed Amendment: Section 2D1.1(a)(3) is amended by inserting the
following additional sentence at the end:
``Provided, that if the defendant qualifies for a mitigating role
adjustment under Sec. 3B1.2 (Mitigating Role), the base offense level
determined under subsection (c) below shall not be greater than level
[28].''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended by deleting Note 16 and Inserting in lieu thereof:
``16. Subsection (a)(3) provides that if a defendant qualifies for
a mitigating role adjustment under Sec. 3B1.2 (Mitigating Role), the
base offense level from subsection (c) shall not exceed level [28].
This limitation on the base offense level is in addition to, and not in
lieu of, the appropriate adjustment from Sec. 3B1.2 (Mitigating
Role).''.
Additional Issue for Comment: The Commission, at the request of the
Practitioners' Advisory Group, requests comment on whether this
amendment should set different maximum offense levels from the Drug
Quantity Table for defendants with a minor or minimal role depending
upon the type of controlled substance. Specifically, should offenses
involving heroin, cocaine, cocaine base, PCP, LSD, N-phenyl-N-[l-(2
phenylethyl)-4-piperidinyl] propanamide, marihuana, and methamphetamine
have a different maximum offense level from the Drug Quantity Table for
lower level defendants (e.g., level 28) than other controlled substance
(e.g., level 22)?
35(A). Synopsis of Proposed Amendment: This is a three-part
amendment to improve the operation of Sec. 3B1.1 (Aggravating Role).
First, this amendment revises Sec. 3B1.1(b) to apply when the defendant
managed or supervised at least four other participants. This
formulation avoids what appears to be an anomaly in the current
guideline in that a defendant who supervises only one participant in an
offense with a total of five participants receives a higher offense
level than a defendant who is the leader or organizer of an offense
involving four participants and manages or supervises all of the
participants. This formulation also is more consistent with that of 21
U.S.C. Sec. 848 (Continuing Criminal Enterprise) (which requires the
supervision of at least five other participants). Second, this
amendment revises Sec. 3B1.1(a) and (b) to delete the term ``otherwise
extensive,'' a term of uncertain meaning that seems to have been
intended to deal with certain non-criminally responsible participants
(see current Application Note 3). This issue is addressed more directly
by revised Application Note 1. Third, this amendment clarifies the
interaction of Secs. 3B1.1 and 3B1.2 in the case of a defendant who
would qualify for a minor or minimal role but for his/her exercise of
supervision over other minor or minimal participants. This interaction
has been the subject of inconsistent interpretation and at least one
circuit court decision, United States v. Tsai, 945 F2d. 155 (3rd Cir.
1992), has required that Secs. 3B1.1 and 3B1.2 be sequentially applied
to the same defendant.
Proposed Amendment: Section Sec. 3B1.1 is amended by deleting
``follows:'' and inserting in lieu thereof ``follows (Apply the
Greatest):''
Section 3B1.1(a) is amended by deleting ``a criminal activity that
involved five or more participants or was otherwise extensive'' and
inserting in lieu thereof ``the offense and the offense involved at
least four other participants''.
Section 3B1.1(b) is amended by deleting ``(but not an organizer or
leader) and the criminal activity involved five or more participants or
was otherwise extensive'' and inserting in lieu thereof ``of at least
four other participants in the offense''.
Section 3B1.1(c) is amended by deleting ``in any criminal activity
other than described in (a) or (b)'' and inserting in lieu thereof ``of
at least one other participant in the offense''.
The Commentary to Sec. 3B1.1 captioned ``Application Notes'' is
amended in Note 1 by inserting the following additional paragraph at
the end:
``In an unusual case, a person may be recruited by a criminally
responsible participant for a significant role in the offense (i.e., a
role that is typically held by a criminally responsible participant),
but the person recruited may not be criminally responsible because the
person recruited (1) is unaware that an offense is being committed, (2)
has not yet reached the age of criminal responsibility, or (3) has a
mental deficiency or condition that negates criminal responsibility. In
such a case, an upward departure to the offense level that would have
applied had such person been a criminally responsible participant may
be warranted. For example, a person hired by a defendant to solicit
money for a charitable organization who was unaware that the charitable
organization was fraudulent, a person duped by a defendant into driving
the getaway car from a bank robbery who was unaware that a robbery was
being committed, or a child recruited by a defendant to assist in a
theft would meet the criteria for the application of this provision.''.
The Commentary to Sec. 3B1.1 captioned ``Application Notes'' is
amended in [[Page 2448]] Note 2 by inserting the Following additional
paragraph at the end:
``A `manager' or `supervisor' means a person who managed or
supervised another participant, whether directly or indirectly.''.
The Commentary to Sec. 3B1.1 captioned ``Application Notes'' is
amended by deleting Note 3 and inserting in lieu thereof:
``3. In the case of a defendant who would have merited a minor or
minimal role adjustment but for the defendant's supervision of other
minor- or minimal-role participants, do not apply an adjustment from
Sec. 3B1.1 (Aggravating Role). For example, an increase for an
aggravating role would not be appropriate for a defendant whose only
function was to offload a large shipment of marihuana and who
supervised other offloaders of that shipment. Instead, consider this
factor in determining the appropriate reduction, if any, under
Sec. 3B1.2 (Mitigating Role). For example, in the case of a defendant
who would have merited a reduction for a minimal role but for his or
her supervision of other minimal-role participants, a reduction for a
minor, rather than minimal, role might be appropriate. In the case of a
defendant who would have merited a reduction for a minor role but for
his or her supervision of other minimal- or minor-role participants, no
reduction for role in the offense might be appropriate.
The interaction of Secs. 3B1.1 and 3B1.2 is to be addressed in the
manner described above. Thus, if an adjustment from Sec. 3B1.1 is
applied, an adjustment from Sec. 3B1.2 may not be applied.''.
(B). Synopsis of Proposed Amendment: This proposed amendment
revises Sec. 3B1.2 (Mitigating Role) and the Introductory Commentary to
Chapter Three, Part B (Role in the Offense) to provide clearer
definitions of the circumstances under which a defendant qualifies for
a mitigating role reduction. In addition, Sec. 3B1.4 is deleted as
unnecessary. This amendment is derived from the work of two Commission
working groups that found significant problems with the clarity of the
current definitions of mitigating role.
Proposed Amendment: The Introductory Commentary to Chapter Three,
Part B is amended by deleting the second paragraph and inserting the
following in lieu thereof:
``For Sec. 3B1.1 (Aggravating Role) or Sec. 3B1.2 (Mitigating Role)
to apply, the offense must involve the defendant and at least one other
participant, although that other participant need not be apprehended.
When an offense has only one participant, neither Sec. 3B1.1 nor
Sec. 3B1.2 will apply. In some cases, some participants may warrant an
upward adjustment under Sec. 3B1.1, other participants may warrant a
downward adjustment under Sec. 3B1.2, and still other participants may
warrant no adjustment. Section 3B1.3 (Abuse of Position of Trust or Use
of Special Skill) may apply to offenses committed by any number of
participants.
Sections 3B1.1 (Aggravating Role) and 3B1.2 (Mitigating Role)
authorize an increase or decrease in offense level for a defendant who
has an aggravating or mitigating role, respectively, in the offense
conduct for which the defendant is accountable under Sec. 1B1.3
(Relevant Conduct). Sections 3B1.1 and 3B1.2 are designed to work in
conjunction with Sec. 1B1.3, which focuses upon the acts and omissions
in which the defendant participated (i.e., that the defendant
committed, aided, abetted, counseled, commanded, induced, procured or
willfully caused) and, in the case of a jointly undertaken criminal
activity, the acts and omissions of others in furtherance of the
jointly undertaken criminal activity that were reasonably foreseeable.
For example, in a controlled substance trafficking offense, the
Chapter Two offense level for Defendant A, who arranged the importation
of 1000 kilograms of marihuana and hired a number of other participants
to assist him, is level 32. The same Chapter Two offense level applies
to Defendant B, a hired hand whose only role was to assist in unloading
the ship upon which the marihuana was imported; Defendant C, a hired
hand whose only role was as a deckhand on that ship; and Defendant D, a
hired hand whose only role was to act as a lookout for that unloading.
Defendant E, who purchased the marihuana from Defendant A and resold
it, acting alone, also receives the same Chapter Two offense level.
Although the quantity of marihuana involved for each of these
defendants (and thus the Chapter Two offense level) is identical,
courts traditionally have distinguished among such defendants in
imposing sentence to take into account their relative culpabilities
(based on their respective roles). Defendant A logically would be seen
as having the most culpable role because he organized the importation
and recruited and managed others. Defendants B, C, and D logically
would be seen as having substantially less culpable roles. Defendant E,
who acted alone, would receive no role adjustment. Consistent with
these principles, Secs. 3B1.1 (Aggravating Role) and 3B1.2 (Mitigating
Role) are designed to provide the court with the ability to make
appropriate adjustments in offense levels on the basis of the
defendant's role and relative culpability in the offense conduct for
which the defendant is accountable under Sec. 1B1.3 (Relevant Conduct).
The fact that the conduct of one participant warrants an upward
adjustment for an aggravating role, or warrants no adjustment, does not
necessarily mean that another participant must be assigned a downward
adjustment for a mitigating role. For example, Defendant F plans a bank
robbery and hires Defendant G, who commits the robbery. Both defendants
plead guilty to bank robbery, and each has a Chapter Two offense level
of 24. Defendant G may be less culpable than Defendant F, who will
receive an upward adjustment under Sec. 3B1.1 for employing Defendant
G. Nevertheless, Defendant G does not have a minimal or minor role in
the robbery because his role is not substantially less culpable than
that of a defendant who committed the same robbery acting alone.''.
Section 3B1.2(a) is amended by deleting ``in any criminal
activity''.
Section 3B1.2(b) is amended by deleting ``in any criminal
activity''.
Section 3B1.2 is amended by deleting ``In cases falling between (a)
and (b), decrease by 3 levels.''.
The Commentary to Sec. 3B1.2 captioned ``Application Notes'' is
amended by renumbering Note 4 as Note 7; and by deleting Notes 1-3 and
inserting in lieu thereof:
``1. (A) Minimal Role. For subsection (a) to apply, the defendant
must--
(1) be substantially less culpable than a person who committed the
same offense without the involvement of any other participant;
(2) ordinarily have all of the characteristics listed in
Application Note 2(a)-(d); and
(3) not be precluded from receiving this adjustment under
Application Notes 3-7.
(B) Minor Role. For subsection (b) to apply, the defendant must--
(1) be substantially less culpable than a person who committed the
same offense without the involvement of any other participant;
(2) ordinarily have most of the characteristics listed in
Application Note 2(a)-(d); and
(3) not be precluded from receiving this adjustment under
Application Notes 3-7.
(C) The difference between a defendant with a minimal role and a
minor role is one of degree, and depends upon the presence and
intensity of the types of factors described in Application Note 2(a)-
(d). [[Page 2449]]
(D) For the purposes of this section, the `same offense' means the
offense conduct (and Chapter Two offense level) for which the defendant
is accountable under Sec. 1B1.3 (Relevant Conduct). The determination
of whether a defendant is substantially less culpable than a person who
committed the same offense without the involvement of any other
participant requires a comparative assessment. In a drug trafficking
offense, for example, the role and culpability of a defendant who was
hired as a lookout for a drug transaction would be compared with the
role and culpability of the seller of the same quantity of the
controlled substance who acted alone. Similarly, the role and
culpability of a defendant who was hired to unload a shipment of
marihuana would be compared with that of an importer of the same
quantity of marihuana who acted alone. `Participant' is defined in the
Commentary to Sec. 3B1.1 (Aggravating Role).
Examples:
(1) Defendant A was hired by an unindicted participant to assist in
unloading a ship carrying 1,000 kilograms of marihuana (having a
Chapter Two offense level of Level 32). Defendant A had no decision-
making authority, was to be paid $2,000, had no supervisory authority
over another participant, and performed only unsophisticated tasks. The
appropriate comparison of relative culpability is with a defendant who,
acting alone, imported the same quantity of marihuana (such a defendant
would receive a Chapter Two offense level of Level 32 and no
aggravating or mitigating role adjustment). On the basis of this
comparison, Defendant A is a substantially less culpable participant.
(2) Defendant B was hired by Defendant C to commit an assault on
Defendant C's former business partner. Defendant B was told when and
where to find the victim alone, was instructed how to proceed, was to
be paid $3,000 to commit the offense, had no supervisory authority over
another participant, and performed only unsophisticated tasks. Although
Defendant B may be less culpable than Defendant C, Defendant B is not a
substantially less culpable participant than a defendant who, acting
alone, committed the same assault offense. Therefore, although
Defendant C receives an aggravating role adjustment for employing
Defendant B, Defendant B does not receive a mitigating role adjustment.
(E) Defendants who qualify as substantially less culpable
participants usually will fall into one of the following categories:
(1) a defendant who facilitates the successful commission of an
offense but is not essential to that offense (e.g., a lookout in a drug
trafficking offense);
(2) a defendant who provides essentially manual labor that is
necessary to the successful completion of an offense (e.g., a loader or
unloader of contraband, or a deckhand on a ship carrying contraband);
or
(3) a defendant who holds or transports contraband for the owner of
the contraband (such defendants provide a buffer that reduces the
likelihood of the owner being apprehended in possession of the
contraband).
(F) Because the determination of whether a defendant qualifies for
a mitigating (minimal or minor) role adjustment requires a comparative
judgment, the Commission recognizes that it will be heavily dependent
upon the facts of each case.
2. The following is a list of characteristics that ordinarily are
associated with a mitigating role:
(A) the defendant had no material decision-making authority or
responsibility;
(B) the total compensation or benefit to the defendant was very
small in comparison to the total profit typically associated with
offenses of the same type and scope;
(C) the defendant did not supervise other participant(s); and
(D) the defendant performed only unsophisticated tasks.
In addition, although not determinative, a defendant's lack of
knowledge or understanding of the scope and structure of the criminal
activity or of the activities of other participants may be indicative
of a mitigating role.
3. If the defendant received an adjustment from Sec. 3B1.1
(Aggravating Role), an adjustment for a minimal or minor role is not
authorized.
4. With regard to offenses involving contraband (including
controlled substances), a defendant who--
(A) sold, or played a substantial part in negotiating the terms of
the sale of, the contraband;
(B) had an ownership interest in any portion of the contraband; or
(C) financed any aspect of the offense,
shall not receive a mitigating role adjustment below the Chapter Two
offense level that the defendant would have received for the quantity
of contraband that the defendant sold, negotiated, or owned, or for
that aspect of the offense that the defendant financed because, with
regard to those acts, the defendant has acted as neither a minimal nor
a minor participant.
Thus, for example, a defendant who sells 100 grams of cocaine and
who is held accountable under Sec. 1B1.3 (Relevant Conduct) for only
that quantity is not eligible for a mitigating role adjustment. In
contrast, a defendant who sells 100 grams of cocaine, but who is held
accountable under Sec. 1B1.3 for a jointly undertaken criminal activity
involving five kilograms of cocaine, if otherwise qualified, may be
considered for a mitigating role adjustment in respect to that jointly
undertaken criminal activity, but the resulting offense level may not
be less than the Chapter Two offense level for the 100 grams of cocaine
that the defendant sold.
[5. A defendant who is entrusted with a quantity of contraband for
purposes of transporting such contraband (e.g., a courier or mule)
shall not receive a minimal role adjustment for the quantity of
contraband that the defendant transported. If such a defendant
otherwise qualifies for a mitigating role adjustment, consideration may
be given to a minor role adjustment.]
[6. A defendant who possessed a firearm or directed or induced
another participant to possess a firearm in connection with the offense
shall not receive a minimal role adjustment. If such a defendant
otherwise qualifies for a mitigating role adjustment, consideration may
be given to a minor role adjustment.]''.
The Commentary to Sec. 3B1.1 captioned ``Application Notes'' is
amended by inserting the following additional note:
``8. Consistent with the overall structure of the guidelines, the
defendant bears the burden of persuasion in establishing entitlement to
a mitigating role adjustment. In determining whether a mitigating role
adjustment is warranted, the court should consider all of the available
facts, including any information arising from the circumstances of the
defendant's arrest that may be relevant to a determination of the
defendant's role in the offense. In weighing the totality of the
circumstances, a court is not required to find, based solely on the
defendant's bare assertion, that such a role adjustment is
warranted.''.
The Commentary to Sec. 3B1.2 captioned ``Background'' is amended by
deleting:
``This section provides a range of adjustments for a defendant who
plays a part in committing the offense that makes him substantially
less culpable than the average participant. The determination whether
to apply subsection (a) or (b) involves a determination that is heavily
dependent upon the facts of the particular case.'', [[Page 2450]]
And by inserting in lieu thereof:
``This section provides an adjustment for a defendant who has a
minor or minimal role in the offense. To qualify for a minor or minimal
role adjustment, the defendant must be substantially less culpable than
a hypothetical defendant who committed the same offense without the
involvement of any other indicted or unindicted participant. In a large
scale offense that cannot readily be committed by one person, the above
comparison would be made to a small number of equally culpable
participants who committed the offense without additional assistance.
In an offense involving importing, transporting, or storing contraband
(including controlled substances), the defendant's relative culpability
is to be assessed by comparison with a participant who owned the same
type and quantity of contraband because, in an offense involving
contraband that is committed without the involvement of any other
participant, the person committing the offense will be the owner of the
contraband.''.
Section 3B1.4 is deleted in its entirety.
36. Synopsis of Proposed Amendment: Some commentators have
suggested that if the Commission moderates the weight given to drug
quantity, it should also amend the guidelines to enhance the weight
given to firearm use, serious bodily injury, and organizer and leaders
in very large scale offenses.
Currently, under Sec. 2D1.1, possession of a weapon carries a 2-
level increase, which adds roughly 25% to the guideline range at higher
offense levels but little in absolute time at very low offense levels.
This amendment would address this issue by providing a minimum offense
level for weapon possession and added enhancements for firearm
discharge and serious bodily injury.
In addition, this amendment would provide an enhancement for
organizers and leaders of very large scale offenses; e.g., offenses
involving at least ten other participants. For consistency, this would
apply to all offenses, not just drug offenses. Two options are shown.
Option 1 would add an additional specific offense characteristic to
address this issue. Option 2 would address this issue by an application
note regarding the appropriate placement of the sentence within the
applicable guideline range.
Proposed Amendment: Section 2D1.1(b) is amended renumbering
subdivision (2) as subdivision (3); and by deleting subdivision (1) and
inserting in lieu thereof:
``(1) (Apply the greater):
(A) If the offense involved the discharge of a firearm, increase by
4 levels, but if the resulting offense level is less than level 20,
increase to level 20; or
(B) If the offense involved possession of a dangerous weapon
(including a firearm), increase by 2 levels; but if the resulting
offense level is less than level 18, increase to level 18.
(2) If a victim sustained serious bodily injury, other than that to
which subsection (a)(1) or (2) applies, increase by 2 levels.''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended by deleting Note 3 and inserting in lieu thereof:
``3. `Firearm,' `dangerous weapon,' and `serious bodily injury' are
defined in the Commentary to Sec. 1B1.1 (Application Instructions).
`Discharge of a firearm' means the discharge of a firearm with intent
to injure or intimidate, or in circumstances that pose a risk a risk of
death or injury to a person.
The enhancement for weapon possession reflects the increased danger
of violence when drug traffickers possess weapons. If a dangerous
weapon is found in the same location as the controlled substance, there
shall be a rebuttable presumption that the offense involved the
possession of the weapon (i.e., that the possession of the weapon
facilitated, or was otherwise related to, the commission of the
offense).
The enhancements in subsection (b) also apply to offenses that are
referenced to Sec. 2D1.1; see Secs. 2D1.2(a)(1) and (2), 2D1.5(a)(1),
2D1.6, 2D1.7(b)(1), 2D1.8, 2D1.11(c)(1), 2D1.12(b)(1), and
2D2.1(b)(1).''.
Section 2D1.11(b) is amended by renumbering subdivision (2) as (3);
and by deleting subdivision (1) and inserting in lieu thereof:
``(1) (Apply the greater):
(A) If the offense involved the discharge of a firearm, increase by
4 levels, but if the resulting offense level is less than level 20,
increase to level 20; or
(B) If the offense involved possession of a dangerous weapon
(including a firearm), increase by 2 levels, but if the resulting
offense level is less than level 18, increase to level 18.
(2) If a victim sustained serious bodily injury, other than that to
which subsection (a)(1) or (2) applies, increase by 2 levels.''.
The Commentary to Sec. 2D1.11 captioned ``Application Notes'' is
amended by deleting Note 1 and inserting in lieu thereof:
``1. `Firearm,' `dangerous weapon,' and `serious bodily injury' are
defined in the Commentary to Sec. 1B1.1 (Application Instructions).
`Discharge of a firearm' refers to the discharge of a firearm with
intent to injure or in circumstances that pose a risk a risk of death
or injury to a person.
If a dangerous weapon is found in the same location as the
controlled substance, there shall be a rebuttable presumption that the
offense involved the possession of the weapon (i.e., that the
possession of the weapon facilitated, or was otherwise related to, the
commission of the offense).''.
[Option 1: Section 3B1.1 is amended by redesignating subsection
(a)-(c) as (b)-(d); and by inserting the following as subsection (a):
``(a) If the defendant was an organizer or leader of the offense,
and the offense involved at least ten other participants, increase by 5
levels.''.]
[Option 2: The Commentary to Sec. 3B1.1 captioned ``Application
Notes'' is amended by inserting the following additional note:
``5. If the defendant was an organizer or leader of an offense
involving at least ten other participants, a sentence towards the upper
limit of the applicable guideline range typically will be
appropriate.''.]
Additional Issue for Comment: The Commission, at the request of the
Practitioners' Advisory Group, invites comment on an alternative to the
weapons portion of this enhancement in the following form:
``(1)(A) If a dangerous weapon (including a firearm) was actually
possessed by the defendant, or the defendant induced or directed
another participant to actually possess a dangerous weapon, increase by
2 levels.
(B) If the use of a dangerous weapon (including a firearm) was
threatened by the defendant, or the defendant induced or directed
another participant to threaten the use of a dangerous weapon, increase
by 3 levels.
(C) If a dangerous weapon (including a firearm) was actually
brandished or displayed by the defendant, or the defendant induced or
directed another participant to brandish or display a dangerous weapon,
increase by 4 levels.
(D) If a firearm was actually discharged by the defendant, or the
defendant induced or directed another participant to actually discharge
a firearm, increase by 5 levels.
2(A) If a dangerous weapon (including a firearm) was actually used
by the defendant and as a result someone other than the defendant
received bodily injury, or if the defendant induced or directed another
participant to actually [[Page 2451]] use a dangerous weapon and
someone other than that participant received bodily injury, increase by
2 levels. This increase should be applied in addition to any other
specific offense characteristic called for in this subsection.
(B) If a dangerous weapon (including a firearm) was actually used
by the defendant and as a result someone other than the defendant
received serious bodily injury, or if the defendant induced or directed
another participant to actually use a dangerous weapon and someone
other than that participant received serious bodily injury, increase by
3 levels. This increase should be applied in addition to any other
specific offense characteristic called for in this subsection.
(C) If a dangerous weapon (including a firearm) was actually used
by the defendant and as a result someone other than the defendant
received permanent or life-threatening bodily injury, or if the
defendant induced or directed another participant to actually use a
dangerous weapon and someone other than that participant received
permanent or life-threatening bodily injury, increase by 4 levels. This
increase should be applied in addition to any other specific offense
characteristic called for in this subsection.''.
37. Synopsis of Proposed Amendment: For offenses involving 50 or
more marihuana plants, the guidelines use an equivalency of one plant =
one kilogram of marihuana. This equivalency reflects the quantities
associated with the five- and ten-year mandatory minimum penalties in
21 U.S.C. Sec. 841. For offenses involving fewer than 50 marihuana
plants, the guidelines use an equivalency of one plant = 100 grams of
marihuana, unless the weight of the actual marihuana is greater. The
one plant = 100 grams of marihuana equivalency was selected as a
reasonable approximation of average yield taking into account (1)
studies reporting the actual yield of marihuana plants (37.5--412 grams
depending on growing conditions), (2) that for guideline purposes all
plants regardless of size are to be counted while, in reality, not all
plants will actually produce useable marihuana (e.g., some plants may
die of disease before maturity; when plants are grown outdoors, some
plants may be eaten by animals); and (3) that male plants, which are
counted for guideline purposes, are frequently culled because they do
not produce the same quality of marihuana as do female plants. The one
plant to one kilogram ratio used in the statute has been criticized by
commentators as unrealistic. Courts have upheld this statutory ratio as
a legitimate exercise of legislative authority (although not on the
grounds that a marihuana plant actually produces anywhere close to one
kilogram of marihuana). This amendment would detach the equivalency
used in the guidelines from the one plant-one kilogram ratio used in
the statute and substitute the 100 grams per marihuana plant ratio
(currently used in the guidelines for cases involving fewer than 50
plants) for all cases.
Proposed Amendment: Section 2D1.1(c) is amended in the fifth note
immediately following the drug quantity table by deleting ``if the
offense involved (A) 50 or more marihuana plants, treat each plant as
equivalent to 1 KG of marihuana; (B) fewer than 50 marihuana plants,''.
The Commentary to Sec. 2D1.1 captioned ``Background'' is amended in
the first sentence of the fourth paragraph by deleting ``In cases
involving fifty or more marihuana plants, an equivalency of one plant
to one kilogram of marihuana is derived from the statutory penalty
provisions of 21 U.S.C. Sec. 841(b)(1) (A), (B), and (D). In cases
involving fewer than fifty plants, the statute is silent as to the
equivalency. For cases involving fewer than fifty'' and inserting in
lieu thereof ``For marihuana'', and in the last sentence of the fourth
paragraph by deleting ``, in the case of fewer than fifty marihuana
plants,''.
38. Issue for Comment: The 100 to 1 ratio between crack cocaine
base and cocaine used in the guidelines reflects the ratio found in 21
U.S.C. Sec. 841(b) with respect to the amounts that require a five- or
ten-year mandatory minimum sentence. This 100 to 1 ratio has been
criticized by a number of commentators as unwarranted. Congress has
directed the Commission to conduct a study with respect to this issue.
The Commission's report to Congress is forthcoming. The Commission
requests comment as to whether the guidelines should be amended with
respect to the 100 to 1 ratio, and if so, whether a 1 to 1, 2 to 1, 5
to 1, 10 to 1, 20 to 1 ratio, or some other ratio, should be
substituted.
39. Synopsis of Proposed Amendment: This proposed amendment would
revise Sec. 2D1.1 so that the scale of the offense is based upon the
quantity of the controlled substances with which the defendant was
involved in a given time period. A number of commentators have
suggested that the use of such a ``snapshot'' would provide a more
accurate method of distinguishing the scale of the offense than the
current procedure of aggregating all the controlled substances
regardless of the time period of the offense. See, e.g., proposed
amendments submitted by the Practitioners' Advisory Committee and
Federal Defenders in the 1993-1994 amendment cycle; see also Judge
Martin's opinion in United States v. Genao, 831 F. Supp. 246 (S.D. N.Y.
1993). Use of a given time frame would reduce the sentencing impact of
law enforcement decisions as to the number of ``buys'' to be made
before arresting the defendant. Currently, for example, whether the
defendant is arrested after two sales or ten sales may have a
substantial impact on the guideline range. The legislative history of
the mandatory minimum sentencing provisions in the Anti-Drug Abuse Act
of 1986 (from which the offense levels in Sec. 2D1.1 were derived)
seems consistent with the use of a snapshot approach. The amounts at
the ten-year mandatory minimum were chosen to be indicative of ``major
traffickers, the manufacturers or the heads of organizations, who are
responsible for creating and delivering very large quantities of
drugs'' and the amounts at the five-year level were chosen to be
indicative of ``the managers of the retail level traffic.'' (Narcotics
Penalties and Enforcement Act of 1986, H.R. Rep. No. 845, Part I, 99th
Cong., 2nd Sess. 11-12 (1986)). In explaining the weights chosen for
major traffickers, the House report states:
* * * after consulting with a number of DEA agents and
prosecutors about the distributions patterns for these various
drugs, the Committee selected quantities of drugs which if possessed
by an individual would likely be indicative of operating at such a
high level. * * * The quantity is based on the minimum quantity that
might be controlled or directed by a trafficker in a high place in
the processing and distribution chain. (Id.).
The above language suggests that the Congress was focusing on the
amount of controlled substances possessed at one time (or within a
limited time frame) rather than a cumulative amount of controlled
substances possessed over an unlimited time period. Furthermore, it is
noted that the Drug Enforcement Administration's investigation/
prosecution priority classification scheme in effect at the time this
mandatory minimum legislation was being considered graded cases by the
amount of controlled substances distributed within a time period of 30
days; e.g., a Class I (major violator) was one who could be expected to
distribute four kilograms of cocaine in a 30-day period; a Class II
violator (mid-level violator) was one who could be
[[Page 2452]] expected to distribute one kilogram in a 30-day period.
It also is to be noted that the use of a time period to limit
consideration of conduct for sentencing purposes is currently contained
in at least one statutory provision. Subsection (b)(2)(B) of 21 U.S.C.
Sec. 848 (Continuing Criminal Enterprise) requires the consideration of
gross receipts be in relation to any 12-month period of the existence
of the enterprise.
Consideration of quantity over a specified period would also
eliminate cases in which courts are obligated to make extrapolations
over long periods of time (with often tenuous information) in order to
assess the quantity of controlled substances involved over the course
of the entire offense.
Under this amendment, the guideline range would be based upon the
largest amount of controlled substances with which the defendant was
involved in a specified time period. Bracketed language displays four
options. Options include a one-year time frame; a 180-day time frame, a
30-day time frame, and an option using the largest quantity involved at
any one time.
Proposed Amendment: Section 2D1.1(c) is amended by designating the
notes immediately following the Drug Quantity Table as Notes (B)-(I),
respectively; and by inserting the following immediately before those
notes:
``Notes to Drug Quantity Table:
[Option 1: (A) If the offense involved a number of transactions
over a period of more than [12 months][180 days][30 days], the offense
level from the Drug Quantity Table shall be based on the quantity of
controlled substances with which the defendant was involved in any
continuous [12-month][180-day][30-day] period during the course of the
offense, using the quantity from the time period that results in the
greatest offense level].
[Option 2: (A) If the offense involved a number of transactions
over a period of time, the offense level from the Drug Quantity Table
shall be determined by the quantity of controlled substances with which
the defendant was involved on any one occasion, using the quantity that
results in the greatest offense level].''.
40. Synopsis of Proposed Amendment: Some commentators have argued
that the fact that the guidelines do not take into account drug purity
can lead to unwarranted disparity in three types of cases. First, with
some drugs, the purity of the drug generally increases with quantity
(e.g., large quantities of heroin are generally purer than small
quantities). With other drugs, purity varies less or does not vary at
all (e.g., Percodan does not vary in purity because it is in pill
form). The net result is that if the offense levels assigned to various
controlled substances are proportional at the lower offense levels, the
offense levels for the controlled substances that do not vary in purity
will overpunish at the higher offense levels. For example, if Percodan
and heroin offenses are aligned correctly at level 12, Percodan
offenses will be substantially over-punished at higher offense levels.
Second, there are a number of controlled substances that typically use
large proportions of filler material in distribution. Methadone and
Percodan are examples. Consequently, the offense levels for these
substances tend to be inflated grossly by the weight of the filler
material. This is similar to the LSD blotter paper/sugar cube issue
that the Commission addressed in the 1993 amendment cycle. Third, even
with drugs that generally increase in purity as quantity increases
(e.g., heroin), there are some points in the distribution scheme
(particularly at the lower levels) in which purity may vary
substantially and thus have a significant impact on offense level. In
addition, when purity is not considered, the offense level can be
affected substantially by the timing of the arrest. For example, if a
retail drug dealer buys ten grams of heroin at 50 percent purity in
order to cut it with 100 grams of quinine and resell it, the offense
level if the defendant is arrested before cutting the heroin is level
16 (ten grams). The offense level if the same defendant is arrested
after cutting the quinine is level 26 (110 grams) despite the fact that
the amount of actual heroin involved has always been five grams (ten
grams at 50 percent purity).
Adoption of a drug table that used the actual weight of the
controlled substance itself (e.g., 10 grams at 25% purity = 2.5 grams)
would address these issues and eliminate inflation of offense levels
based on ``filler'' material. Purity information is routinely provided
on DEA Form 7 using established sampling procedures. There are,
however, two potential practical problems related to drug purity that
would have to be addressed satisfactorily before adoption of such a
proposal. Both of these practical problems apply primarily to
controlled substances that vary in purity (e.g., heroin and cocaine),
rather than to legitimately manufactured pharmaceuticals that have been
diverted (for which purity can readily be established) and substances
that do not vary greatly in purity and thus would continue to be
assessed by gross weight (e.g., marijuana). First, there is the
possibility of increased litigation over purity assessments. It is
noted, however, that (1) courts currently make estimates of drug
quantity from information that is clearly less precise; (2) the Parole
Commission has not found the use of quantity/purity to be problematic;
and (3) quantity/purity currently is used for several controlled
substances. For example, the instruction in Sec. 2D1.1 to use ``300 KG
of Methamphetamine or 30 KG or more of Methamphetamine (actual)''
directs the court to use the weight/purity of Methamphetamine with a
conclusive presumption that the Methamphetamine is at least ten percent
pure; the same instruction is contained in Sec. 2D1.1 for PCP. Second,
there is the issue of how to handle cases in which no controlled
substance is seized (e.g., uncompleted offenses) and cases in which a
controlled is seized but for some reason is not tested for purity.
Both of these concerns may be addressed by the adoption of a
rebuttable presumption (or a set of rebuttable presumptions). For
example, there could be a rebuttable presumption that the actual weight
of the controlled substance was 50 percent of the weight of the mixture
containing the controlled substance. In such case, the court would use
a higher or lower percentage if such could be established by the
government or the defense. Or, without much increase in complexity,
there could be a set of rebuttable presumptions by drug type and/or
gross quantity. The Parole Commission has used a chart with
``fallback'' purities as rebuttable presumptions based on the type and
gross quantity of controlled substance for many years. The proposed
amendment provides a set of rebuttable presumptions to address these
issue.
Proposed Amendment: Section 2D1.1(c)(1) is amended by deleting:
``30 KG or more of PCP, or 3 KG or more of PCP (actual);
30 KG or more of Methamphetamine, or 3 KG or more of
Methamphetamine (actual), or 3 KG or more of `Ice';'',
And inserting in lieu thereof:
``30 KG or more of PCP;
30 KG or more of Methamphetamine''.
Section 2D1.1(c)(2) is amended by deleting:
``At least 30 KG but less than 100 KG of PCP, or at least 3 KG but
less than 10 KG of PCP (actual);
At least 30 KG but less than 100 KG of Methamphetamine, or at least
3 KG but less than 10 KG of `Ice';'',
And inserting in lieu thereof:
``At least 30 KG but less than 100 KG of PCP;
At least 30 KG but less than 100 KG of Methamphetamine;''.
[[Page 2453]]
Section 2D1.1(c)(3) is amended by deleting:
``At least 3 KG but less than 10 KG of PCP, or at least 300 G but
less than 1 KG of PCP (actual);
At least 3 KG but less than 10 KG of Methamphetamine, or at least
300 G but less than 1 KG of Methamphetamine (actual), or at least 300 G
but less than 1 KG of `Ice';'',
And inserting in lieu thereof:
``At least 3 KG but less than 10 KG of PCP;
At least 3 KG but less than 10 KG of Methamphetamine;''.
Section 2D1.1(c)(4) is amended by deleting:
``At least 1 KG but less than 3 KG of PCP, or at least 100 G but
less than 300 G of PCP (actual);
At least 1 KG but less than 3 KG of Methamphetamine, or at least
100 G but less than 300 G of Methamphetamine (actual), or at least 100
G but less than 300 G of `Ice';'',
And inserting in lieu thereof:
``At least 1 KG but less than 3 KG of PCP;
At least 1 KG but less than 3 KG of Methamphetamine;''.
Section 2D1.1(c)(5) is amended by deleting:
``At least 700 G but less than 1 KG of PCP, or at least 70 G but
less than 100 G of PCP (actual);
At least 700 G but less than 1 KG of Methamphetamine, or at least
70 G but less than 100 G of Methamphetamine (actual), or at least 70 G
but less than 100 G of `Ice';'',
And inserting in lieu thereof:
``At least 700 G but less than 1 KG of PCP;
At least 700 G but less than 1 KG of Methamphetamine;''.
Section 2D1.1(c)(6) is amended by deleting:
``At least 400 G but less than 700 G of PCP, or at least 40 G but
less than 70 G of PCP (actual);
At least 400 G but less than 700 G of Methamphetamine, or at least
40 G but less than 70 G of Methamphetamine (actual), or at least 40 G
but less than 70 G of `Ice';'',
And inserting in lieu thereof:
``At least 400 G but less than 700 G of PCP;
At least 400 G but less than 700 G of Methamphetamine;''.
Section 2D1.1(c)(7) is amended by deleting:
``At least 100 G but less than 400 G of PCP, or at least 10 G but
less than 40 G of PCP (actual);
At least 100 G but less than 400 G of Methamphetamine, or at least
10 G but less than 40 G of Methamphetamine (actual), or at least 10 G
but less than 40 G of `Ice';'',
And inserting in lieu thereof:
``At least 100 G but less than 400 G of PCP;
At least 100 G but less than 400 G of Methamphetamine;''.
Section 2D1.1(c)(8) is amended by deleting:
``At least 80 G but less than 100 G of PCP, or at least 8 G but
less than 10 G of PCP (actual);
At least 80 G but less than 100 G of Methamphetamine, or at least 8
G but less than 10 G of Methamphetamine (actual), or at least 8 G but
less than 10 G of `Ice';'',
And inserting in lieu thereof:
``At least 80 G but less than 100 G of PCP;
At least 80 G but less than 100 G of Methamphetamine;''.
Section 2D1.1(c)(9) is amended by deleting:
``At least 60 G but less than 80 G of PCP, or at least 6 G but less
than 8 G of PCP (actual);
At least 60 G but less than 80 G of Methamphetamine, or at least 6
G but less than 8 G of Methamphetamine (actual), or at least 6 G but
less than 8 G of `Ice';'',
And inserting in lieu thereof:
``At least 60 G but less than 80 G of PCP;
At least 60 G but less than 80 G of Methamphetamine;''.
Section 2D1.1(c)(10) is amended by deleting:
``At least 40 G but less than 60 G of PCP, or at least 4 G but less
than 6 G of PCP (actual);
At least 40 G but less than 60 G of Methamphetamine, or at least 4
G but less than 6 G of Methamphetamine (actual), or at least 4 G but
less than 6 G of `Ice';'',
And inserting in lieu thereof:
``At least 40 G but less than 60 G of PCP;
At least 40 G but less than 60 G of Methamphetamine''.
Section 2D1.1(c)(11) is amended by deleting:
``At least 20 G but less than 40 G of PCP, or at least 2 G but less
than 4 G of PCP (actual);
At least 20 G but less than 40 G of Methamphetamine, or at least 2
G but less than 4 G of Methamphetamine (actual), or at least 2 G but
less than 4 G of `Ice';'',
And inserting in lieu thereof:
``At least 20 G but less than 40 G of PCP;
At least 20 G but less than 40 G of Methamphetamine;''.
Section 2D1.1(c)(12) is amended by deleting:
``At least 10 G but less than 20 G of PCP, or at least 1 G but less
than 2 G of PCP (actual);
At least 10 G but less than 20 G of Methamphetamine, or at least 1
G but less than 2 G of Methamphetamine (actual), or at least 1 G but
less than 2 G of `Ice';'',
And inserting in lieu thereof:
``At least 10 G but less than 20 G of PCP;
At least 10 G but less than 20 G of Methamphetamine;''.
Section 2D1.1(c)(13) is amended by deleting:
``At least 5 G but less than 10 G of PCP, or at least 500 MG but
less than 1 G of PCP (actual);
At least 5 G but less than 10 G of Methamphetamine, or at least 500
MG but less than 1 G of Methamphetamine (actual), or at least 500 MG
but less than 1 G of `Ice';'',
And inserting in lieu thereof:
``At least 5 G but less than 10 G of PCP, or at least 500 MG but
less than 1 G of PCP (actual);
At least 5 G but less than 10 G of Methamphetamine, or at least 500
MG but less than 1 G of Methamphetamine (actual), or at least 500 MG
but less than 1 G of `Ice';''.
Section 2D1.1(c)(14) is amended by deleting:
``Less than 5 G of PCP, or less than 500 MG of PCP (actual);
Less than 5 G of Methamphetamine, or less than 500 MG of
Methamphetamine (actual), or less than 500 MG of `Ice';'',
And inserting in lieu thereof:
``Less than 5 G of PCP;
Less than 5 G of Methamphetamine;''.
Section 2D1.1(c) is amended in the notes following the Drug
Quantity table by deleting the first, second, third, and seventh
paragraphs; and by inserting the following as the first note:
``(A) For offenses measured by the weight of the controlled
substance (except marihuana, hashish, and hashish oil), use the weight
of the actual controlled substance in the mixture or substance
containing the controlled substance. For example, in the case of a 200
gram mixture containing heroin at 20% purity, the weight of the actual
heroin is 40 grams (200 grams of mixture x 20% purity = 40 grams of
heroin).
For the purposes of this determination:
(1) If the controlled substance is heroin, cocaine, `crack,'
cocaine base, or methamphetamine, and the transaction involved a
mixture or substance weighing one kilogram or more, there shall be a
rebuttable presumption that the purity is 75% (i.e., that the weight of
the actual controlled substance is 75% of the weight of the mixture or
substance containing the controlled substance); [[Page 2454]]
(2) In any other case, there shall be a rebuttable presumption that
the purity is 50% (i.e., that the weight of the actual controlled
substance is 50% of the weight of the mixture or substance containing
the controlled substance).
The applicable rebuttable presumption set forth above is to be used
unless sufficient case-specific information is available to warrant a
more specific determination as to the amount of the actual controlled
substance.''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended by deleting Note 1 and inserting in lieu thereof:
``1. The rebuttable presumptions set forth in Note (A) will apply
unless sufficient case-specific information is available to make a more
specific determination as to the weight of the actual controlled
substance.
``Generally, more specific weight/purity information will be
obtained from DEA Form 7. In this form, `total net weight' (Item 32)
refers to the amount of the actual controlled substance. This is the
weight to be used in calculation of the base offense level from the
Drug Quantity Table.''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended by deleting Notes 9 and 18; and by renumbering the remaining
notes accordingly.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 9 (formerly Note 10) by deleting ``sentences provided
in, and equivalences derived from, the statute (21 U.S.C.
Sec. 841(b)(1)),'' and inserting in lieu thereof ``equivalences derived
from the statute (21 U.S.C. Sec. 841(b)(1))''; and by deleting ``of a
substance containing''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 10 (formerly Note 11) by deleting ``total'' wherever it
appears.
The Commentary to Sec. 2D1.1 captioned ``Background'' is amended by
deleting the first, second, third, seventh, and eighth paragraphs.
Additional Issue for Comment: The Commission invites comment, at
the request of Families Against Mandatory Minimums, as to whether the
ratio for methamphetamine relative to other controlled substances
should be changed and, if so by how much.
41. Synopsis of Proposed Amendment: This proposed amendment
simplifies the operation of Sec. 2D1.1 with respect to Schedule I and
II Depressants and Schedule II, IV, and V controlled substances by
applying the Drug Quantity Table according to the number of pills,
capsules, or tablets rather than by the gross weight of the pills,
capsules, or tablets. Schedule I and II Depressants and Schedule III,
IV, and V substances are almost always in pill, capsule, or tablet
form. The current guidelines use the total weight of the pill, tablet,
or capsule containing the controlled substance although there is no
statutory requirement to do so. This method leads to anomalies because
the weight of most pills is determined primarily by the filler rather
than the controlled substance. Thus, heavy pills result in higher
offense levels even though there is little or no connection between
gross weight and the strength of the pill. Moreover, even the weight of
the controlled substance in the pill itself has little connection with
the strength of the pill for these offenses. Finally, because these
categories contain a wide variety of controlled substances, there is
little basis on which to compare the strength of different types of
pills (unlike, for example, heroin and morphine that can be compared
directly).
Because the offense levels for these offenses are generally lower
than for other controlled substances, adoption of a more summary
measure that references the number of pills, capsules, or tablets,
rather than either their gross or net weight or purity, seems the most
appropriate solution. Use of this method will simplify guideline
application and more clearly show that the purpose of the Drug Quantity
Table is as a proxy for the scale of the offense. Historically, this
method (counting pills, tablets, capsules) has been used for such
substances in the parole guidelines for many years. It is also noted
that the sentencing guidelines currently use this method for anabolic
steroids.
Proposed Amendment: Section 2D1.1(c)(10) is amended by deleting:
``20 KG or more of Secobarbital (or the equivalent amount of other
Schedule I or II Depressants) or Schedule III substances (except
Anabolic Steroids); 40,000 or more units of Anabolic Steroids.'',
And by inserting in lieu thereof:
``40,000 or more units of Schedule I or II Depressants;
40,000 or more units of Schedule III substances.''.
Section 2D1.1(c)(11) is amended by deleting:
``At least 10 KG but less than 20 KG of Secobarbital (or the
equivalent amount of other Schedule I or II Depressants) or Schedule
III substances (except Anabolic Steroids);
At least 20,000 but less than 40,000 units of Anabolic Steroids.'',
And by inserting in lieu thereof:
``At least 20,000 but less than 40,000 units of Schedule I or II
Depressants;
At least 20,000 but less than 40,000 units of Schedule III
substances.''.
Section 2D1.1(c)(12) is amended by deleting:
``At least 5 KG but less than 10 KG of Secobarbital (or the
equivalent amount of other Schedule I or II Depressants) or Schedule
III substances (except Anabolic Steroids);
At least 10,000 but less than 20,000 units of Anabolic Steroids.'',
And by inserting in lieu thereof:
``At least 10,000 but less than 20,000 units of Schedule I or II
Depressants;
At least 10,000 but less than 20,000 units of Schedule III
substances.''.
Section 2D1.1(c)(13) is amended by deleting:
``At least 2.5 KG but less than 5 KG of Secobarbital (or the
equivalent amount of other Schedule I or II Depressants) or Schedule
III substances (except Anabolic Steroids);
At least 5,000 but less than 10,000 units of Anabolic Steroids.'',
And by inserting in lieu thereof:
``At least 5,000 but less than 10,000 units of Schedule I or II
Depressants;
At least 5,000 but less than 10,000 units of Schedule III
substances.''.
Section 2D1.1(c)(14) is amended by deleting:
``At least 1.25 KG but less than 2.5 KG of Secobarbital (or the
equivalent amount of other Schedule I or II Depressants) or Schedule
III substances (except Anabolic Steroids);
At least 2,500 but less than 5,000 units of Anabolic Steroids;
20 KG or more of Schedule IV substances.'',
And inserting in lieu thereof:
``At least 2,500 but less than 5,000 units of Schedule I or II
Depressants;
At least 2,500 but less than 5,000 units of Schedule III
substances.
40,000 or more units of Schedule IV substances.''.
Section 2D1.1(c)(15) is amended by deleting:
``At least 500 G but less than 1.25 KG of Secobarbital (or the
equivalent amount of other Schedule I or II Depressants) or Schedule
III substances (except Anabolic Steroids);
At least 1,000 but less than 2,500 units of Anabolic Steroids;
At least 8 KG but less than 20 KG of Schedule IV substances.'',
And inserting in lieu thereof:
``At least 1,000 but less than 2,500 units of Schedule I or II
Depressants;
At least 1,000 but less than 2,500 units of Schedule III
substances;
At least 16,000 but less than 40,000 or more units of Schedule IV
substances.''.
Section 2D1.1(c)(16) is amended by deleting:
``At least 125 G but less than 500 G of Secobarbital (or the
equivalent [[Page 2455]] amount of other Schedule I or II Depressants)
or Schedule III substances (except Anabolic Steroids);
At least 250 but less than 1,000 units of Anabolic Steroids;
At least 2 KG but less than 8 KG of Schedule IV substances;
20 KG or more of Schedule V substances.'',
And inserting in lieu thereof:
``At least 250 but less than 1,000 units of Schedule I or II
Depressants;
At least 250 but less than 1,000 units of Schedule III substances;
At least 4,000 but less than 16,000 units of Schedule IV
substances;
At least 40,000 or more units of Schedule V substances.''.
Section 2D1.1(c)(17) is amended by deleting:
``Less than 125 G of Secobarbital (or the equivalent amount of
other Schedule I or II Depressants) or Schedule III substances (except
Anabolic Steroids);
Less than 250 units of Anabolic Steroids;
Less than 2 KG of Schedule IV substances;
Less than 20 KG of Schedule V substances.'',
And inserting in lieu thereof:
``Less than 250 units of Schedule I or II Depressants;
Less than 250 units of Schedule III substances;
Less than 4,000 units of Schedule IV substances;
Less than 40,000 units of Schedule V substances.''.
Section 2D1.1(c) is amended in the notes following the Drug
Quantity Table by inserting the following additional note as the fifth
note:
``In the case of Schedule I or II Depressants, Schedule III
substances (except anabolic steroids), Schedule IV substances, and
Schedule V substances, one `unit' means one pill, capsule, or tablet.
If the substance is in liquid form, one `unit' means 0.5 gms.''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 10d by deleting ``28 kilograms'' and inserting in lieu
thereof ``56,000 units''; by deleting ``50 kilograms'' and inserting in
lieu thereof ``100,000 units''; and by deleting ``100 kilograms'' and
inserting in lieu thereof ``200,000 units''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 10 in the Drug Equivalency Tables in the subsection
captioned ``Secobarbital and Other Schedule I or II Depressants'' by
deleting:
``1 gm of Amobarbital = 2 gm of marihuana
1 gm of Glutethimide = 0.4 gm of marihuana
1 gm of Methaqualone = 0.7 gm of marihuana
1 gm of Pentobarbital = 2 gm of marihuana
1 gm of Secobarbital = 2 gm of marihuana'',
And inserting in lieu thereof:
``1 unit = 1 gm of marihuana''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 10 in the Drug Equivalency Tables in the subsection
captioned ``Schedule III Substances'' by deleting:
``1 gm of a Schedule III Substance
(except anabolic steroids) = 2 gm of marihuana
1 unit of anabolic steroids = 1 gm of marihuana
1 unit = 1 gm of marihuana''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 10 in the Drug Equivalency Tables in the subsection
captioned ``Schedule IV Substances'' by deleting:
``1 gm of a Schedule IV Substance = 0.125 gm of marihuana'',
And inserting in lieu thereof:
``1 unit = 0.0625 gm of marihuana''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 10 in the Drug Equivalency Tables in the subsection
captioned ``Schedule V Substances'' by deleting:
``1 gm of a Schedule V Substance = 0.0125 gm of marihuana'',
And inserting in lieu thereof:
``1 unit = 0.00625 gm of marihuana''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 11 in the in the ``Typical Weight Per Unit'' by
deleting:
`` Depressants
Methaqualone 300 mg''.
42. Synopsis of Proposed Amendment: This is a twelve-part amendment
that addresses a number of miscellaneous issues in Chapter Two, Part D
(Offenses Involving Drugs).
First, this amendment adds definitions of hashish and hashish oil
to Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or
Trafficking; Attempt or Conspiracy) in the notes following the Drug
Quantity Table. Currently, these terms are not defined by statute or in
the guidelines, leading to litigation as to which substances are to be
classified as hashish or hashish oil (as opposed to marihuana). This
issue has arisen in sentencing hearings, see United States v. Schultz,
810 F. Supp. 230 (S.D. Ohio 1992) and United States v. Gravelle, 819 F.
Supp. 1076 (S.D. Fla. 1993), training presentations, and hotline
questions. This amendment adds a note following Sec. 2D1.1(c) to
address this issue.
Second, this amendment clarifies the treatment of marihuana that
has a moisture content sufficient to render it unusable without drying
(e.g., a bale of marihuana left in the rain or recently harvested
marihuana that had not had time to dry). In such cases, including the
moisture in the weight of the marihuana can increase the offense level
for a factor that bears no relationship to the scale of the offense or
the marketable form of the marihuana. Prior to the effective date of
the 1993 amendments, two circuits had approved weighing wet marihuana
despite the fact that the marihuana was not in a usable form. United
States v. Garcia, 925 F.2d 170 (7th Cir. 1991); United States v.
Pinedo-Montoya, 966 F.2d 591 (10th Cir. 1992). Although Application
Note 1 in the Commentary to Sec. 2D1.1, effective November 1, 1993
(pertaining to unusable parts of a mixture or substance) should produce
the appropriate result because marihuana must be dried before being
used, this type of case is sufficiently distinct to warrant a specific
reference in Application Note 1 to ensure correct application of the
guideline.
Third, a frequently recurring issue is that of what constitutes a
marihuana plant. Several circuits have confronted the issue of when a
cutting from a marihuana plant becomes a ``plant.'' The appellate
courts generally have held that the term ``plant'' should be defined by
``its plain and ordinary dictionary meaning * * * [A] marihuana `plant'
includes those cuttings accompanied by root balls.'' United States v.
Edge, 989 F.2d 871, 878 (6th Cir. 1993) (quoting United States v. Eves,
932 F.2d 856, 860 (10th Cir. 1991)). See also United States v.
Malbrough, 922 F.2d 458, 465 (8th Cir. 1990) (acquiescing in the
district court's apparent determination that certain marihuana cuttings
that did not have their own ``root system'' should not be counted as
plants), cert. denied, 111 S. Ct. 2907; United States v. Angell, 794 F.
Supp. 874, 875 (D. Minn. 1990) (refusing to count as plants marihuana
cuttings that have no visible root structure); United States v. Fitol,
733 F. Supp. 1312 (D. Minn. 1990) (``individual cuttings, planted with
the intent of growing full size plants, and which had grown roots, are
`plants' both within common parlance and within Section 841(b)'');
United States v. Speltz, 733 F. Supp. 1311, 1312 (D. Minn. 1990) (small
marijuana plants, e.g., cuttings with roots, are nonetheless still
marijuana plants), aff'd. 938 F.2d 188 (8th Cir. 1991); United States
v. Carlisle, 907 F.2d 94, 96 (9th Cir. 1990) (finding that cuttings
were plants where each cutting had various degrees of root formation
not clearly erroneous). [[Page 2456]] Because (1) this issue arises
frequently, (2) not all of the circuits have ruled on this issue, and
(3) the definitions necessary for courts and probation officers to
apply the guidelines should be included in the Guidelines Manual, this
amendment adds an application note (Note 20) to the Commentary of
Sec. 2D1.1 setting forth the definition of a plant for guidelines
purposes.
Fourth, this amendment provides equivalencies for two additional
controlled substances: (1) khat, and (2) levo-alpha-acetylmethadol
(LAAM) in Application Note 10 of the Commentary to Sec. 2D1.1.
Fifth, this amendment deletes the distinction between d- and l-
methamphetamine in the Drug Equivalency Table in Application Note 10 of
the Commentary to Sec. 2D1.1. L- methamphetamine, which is a rather
weak form of methamphetamine, is rarely seen. The usual form of
methamphetamine is d-methamphetamine. Moreover, l- methamphetamine is
not made intentionally, but rather it is the result of a botched
attempt to produce d-methamphetamine. Under this amendment, l-
methamphetamine would be treated the same as d-methamphetamine (i.e.,
as if an attempt to manufacture or distribute d-methamphetamine). This
revision will simplify guideline application. Currently, unless the
methamphetamine is specifically tested to determine its form,
litigation can result over whether the methamphetamine is l-
methamphetamine or d- methamphetamine. In addition, there is another
form of methamphetamine (dl- methamphetamine) that is composed of 50%
d-methamphetamine and 50% l- methamphetamine. Dl-methamphetamine is not
listed in the Drug Equivalency Table and has a potency halfway between
l-methamphetamine and d-methamphetamine. This has led to litigation as
to whether dl-methamphetamine should be treated as if it were all d-
methamphetamine because it contains some d-methamphetamine, or whether
it should be treated as 50 percent d-methamphetamine and 50 percent l-
methamphetamine. In United States v. Carroll, 6 F.3d 735 (11th Cir.
1993), cert. denied, 114 S. Ct. 1234 (1994) a case in which the
Eleventh Circuit held that dl-methamphetamine should be treated as d-
methamphetamine, the majority and dissenting opinions clearly point out
the complexity engendered by the current distinction between d- and l-
methamphetamine.
Sixth, this amendment clarifies Application Note 3 in the
Commentary of Sec. 2D1.1 with respect to the weapon possession
enhancement in Sec. 2D1.1(b)(1). Currently, this commentary provides
``The adjustment should be applied if the weapon was present, unless it
is clearly improbable that the weapon was connected with the offense.''
There is a circuit conflict with respect to the burden of persuasion
for application of this enhancement. The First, Sixth, Seventh, Ninth,
and Tenth circuits require the government to show possession during the
commission of the offense; the defense then bears the burden of showing
that the weapon was not connected with the offense. United States v.
Corcimiglia, 967 F.2d 724 (1st Cir. 1992); United States v. McGhee, 882
F.2d 1095 (6th Cir. 1989); United States v. Durrive, 902 F.2d 1221 (7th
Cir. 1990); United States v. Restrepo, 884 F.2d 1294 (9th Cir. 1989);
United States v. Roberts, 980 F.2d 645 (10th Cir. 1992). In contrast,
the Eighth Circuit has placed the burden of both presence and
relationship to the offense on the government. United States v. Turpin,
920 F.2d 1377 (8th Cir. 1990), citing United States v. Khang, 904 F.2d
1219 (8th Cir. 1990). In addition, the phrase ``unless it is clearly
improbable'' seems inconsistent with the preponderance of evidence
standard that applies to other adjustments; i.e., can one find
something to be clearly improbable by a preponderance of the evidence?
This amendment resolves both issues by revising the Commentary to
Secs. 2D1.1 and 2D1.11 to state expressly that if a weapon is present,
there shall be a rebuttable presumption that it is connected with the
offense. Rebuttable presumptions currently are used in Secs. 2B1.1
(Application Note 13) and 2T1.1 (Application Note 1).
Seventh, this amendment revises Application Note 12 in the
Commentary to Sec. 2D1.1 to provide that in a case involving
negotiation for a quantity of a controlled substance, the negotiated
quantity is used to determine the offense level unless the completed
transaction establishes a larger quantity, or the defendant establishes
that he or she was not reasonably capable of producing the negotiated
amount or otherwise did not intend to produce that amount. Disputes
about the interpretation about this application note have produced much
litigation in the courts. See, e.g., United States v. Bradley, 917 F.2d
601 (1st Cir. 1990); United States v. Rodriguez, 975 F.2d 999 (3d Cir.
1992); United States v. Richardson, 939 F.2d 135 (4th Cir. 1991);
United States v. Christian, 942 F.2d 363 (6th Cir. 1991); United States
v. Ruiz, 932 F.2d 1174 (7th Cir. 1991); United States v. Smiley, 997
F.2d 475 (8th Cir. 1993); United States v. Barnes, 993 F.2d 680 (9th
Cir. 1993); United States v. Tillman, Nos. 92-9198, etc. (11th Cir.
Nov. 29, 1993).
Eighth, Sec. 1B1.3 (Relevant Conduct) provides that a defendant is
liable (1) for his or her own actions; and (2) for the actions of other
participants that are both in furtherance of a conspiracy and
reasonably forseeable. In an unusual case, the type or quantity of a
controlled substance that the defendant personally transported or
stored may not have been known or reasonably forseeable to the
defendant. Assume, for example, that the defendant convinces the court
(1) that he or she believed that he or she was transporting a small
quantity of marijuana when, in fact, the substance was a large quantity
of heroin and (2) that, in the circumstances, the fact that the
substance was a large quantity of heroin was not reasonably forseeable.
In United States v. Develasquez, 28 F.3d 2 (2d Cir. 1994), cert.
denied, (U.S. Dec. 12, 1994) (No. 94-6793), the Second Circuit held
that in determining the offense level under Sec. 1B1.3(a)(1) the
defendant is accountable for the controlled substance he or she
actually transported even if the type or quantity was not reasonably
forseeable. Whether or not a downward departure under the above noted
circumstances may be warranted was not discussed. In United States v.
Ivonye, No. 93-1720 (2d Cir. July 8, 1994), a similar case, the Second
Circuit noted ``It is certainly possible, of course, to imagine a
situation where the gap between belief and actuality was so great as to
make the guideline grossly unfair in application. In such cases,
downward departure may be warranted.'' This amendment adds an
application note (Note 21) to provide guidance with respect to this
issue.
Ninth, this amendment addresses cases involving a clandestine
laboratory in which the manufacture of a controlled substance has not
been completed. In such cases, the court must estimate the amount of
controlled substance that would have been manufactured in order to
calculate the offense level under Sec. 2D1.1 (Unlawful Manufacturing,
Importing, Exporting, or Trafficking; Attempt or Conspiracy). The Drug
Enforcement Administration provides an estimate of theoretical yield
based on precursor chemicals on hand (Clandestine Laboratory Report--
DEA 500). Theoretical yield assumes a complete chemical reaction; i.e.,
that all molecules that could combine with all other molecules do so.
In actuality, the amount that a laboratory can produce
[[Page 2457]] (actual yield) can vary from 0 percent to close to 100
percent of theoretical yield based on many factors, including the type
of controlled substance being manufactured, the process used to
manufacture the controlled substance, and the skill of the chemist.
The use of theoretical yield frequently will result in a higher
offense level for someone who sets up a laboratory and does not produce
any controlled substance than for someone who actually produces the
controlled substance. This is because the theoretical yield frequently
will substantially overestimate the actual (expected) yield. In order
to minimize unwarranted disparity and, at the same time, prevent the
need for inordinately complex factfinding, this amendment adds an
application note (Note 22) to the Commentary to Sec. 2D1.1 providing
that 50 percent of the theoretical yield is to be used as a proxy for
expected yield unless the government or defendant provides sufficient
information to enable a more accurate estimate of the expected yield.
In concept, this is similar to the proxy for tax loss used in
Sec. 2T1.1 (Tax Evasion). The Commission specifically invites comment
on whether the percentage of theoretical yield used for such estimate
should be a percentage higher or lower than 50 percent, whether
different percentages should be developed for different controlled
substances or manufacturing processes, and whether the estimate should
be based on the most abundant precursor on hand, the least abundant
precursor on hand, or some other method.
Tenth, the question has arisen as to how drug quantity is to be
calculated under Sec. 2D1.1 when part of the amount of the controlled
substance possessed by the defendant is for sale and part is for the
defendant's own use. In United States v. Kipp (9th Cir. No. 92-30302,
March 4, 1993), the Ninth Circuit decided ``drugs possessed for mere
personal use are not relevant to the crime of possession with intent to
distribute because they are not `part of the same course of conduct' or
`common scheme' as drugs intended for distribution.'' This issue seems
likely to reoccur. Four options to address this issue seem possible:
(1) adoption of the approach of the Ninth Circuit without stating a
presumption; (2) adoption of the approach of the Ninth Circuit with a
rebuttable presumption stating ``when controlled substance is possessed
with intent to distribute, there is a rebuttable presumption that all
amounts possessed by the defendant are intended for distribution''; (3)
requiring the inclusion of all amounts in the guideline calculation,
but authorizing a downward departure if the offense level determined
overrepresents the seriousness of the offense because part of the
amount possessed was intended for personal consumption; or (4) counting
all the controlled substance and not authorize a downward departure.
This amendment adds an application note (Note 23) that reflects the
third option. Given that information pertaining to the intended use of
the controlled substance is in the possession of the defendant, placing
the burden on the defendant to demonstrate the amount not intended for
distribution seems reasonable. It is noted, however, that even when it
can be established the defendant possessed some portion for the
defendant's own use, the actual amount likely will be somewhat
uncertain. Even the defendant, at the time the defendant was arrested,
may not have known how much of the controlled substance the defendant
would have sold or used personally. Thus, making this factor a
departure consideration, the third option, seems the preferable
approach.
Eleventh, this amendment adds a departure instruction to the
Commentary to Sec. 2D1.2 (Drug Offenses Occurring Near Protected
Locations or Involving Underage or Pregnant Individuals; Attempt or
Conspiracy). The issue addressed in this amendment involves the
situation in which controlled substances were sold at a ``protected
location,'' but the location of the drug transaction was determined by
law enforcement authorities, rather than by the defendant, or otherwise
does not create the enhanced risk of harm for those the guideline is
designed to protect. The purpose of the amendment is to provide that,
in such cases, the defendant is not penalized for the location of the
sale. This issue has been noted by the Third Circuit in United States
v. Rodriguez, 961 F.2d 1089 (3d Cir. 1992) (suggesting downward
departure where the defendant technically qualifies for application of
this section, but it is clear that the defendant's conduct did not
create any increased risk for those whom the statute was intended to
protect).
Twelfth, this amendment revises Application Note 1 of the
Commentary to Sec. 2D1.8 (Renting or Managing a Drug Establishment;
Attempt or Conspiracy). The word ``trafficking'' is added in the first
sentence to prevent this restriction from applying solely because the
defendant was a consumer of the controlled substance. The deletion of
the portion of the second sentence pertaining to ``arranging for the
use of the premises for the purpose of facilitating a drug
transaction'' is because this phrase is unclear and, in any event,
unnecessary given the next sentence. The addition of ``at the same
time'' prevents this restriction from applying to a defendant who, for
example, let her boyfriend use her apartment to make drug transactions
during a six month period but changed apartments during that time. The
word ``significantly'' is added to modify ``assisted'' to prevent a
defendant from being excluded from the application of subsection (a)(2)
because the defendant took an occasional telephone message. The last
sentence is deleted as inconsistent with the guideline itself as well
as inconsistent with the general framework of the Guidelines (prior
criminal conduct is addressed in Chapter Four).
Proposed Amendment: Section 2D1.1(c) is amended in the Notes
following the Drug Quantity Table by adding the following additional
notes at the end:
``Hashish, for the purposes of this guideline, means a resinous
substance of cannabis that includes (i) one or more of the
tetrahydrocannabinols (as listed in 21 C.F.R. Sec. 1308.11(d)(25)),
(ii) at least two of the following: cannabinol, cannabidiol, or
cannabichromene, and (iii) fragments of plant material (such as
cystolith fibers).
Hashish oil, for the purposes of this guideline, means a
preparation of the soluble cannabinoids derived from cannabis that
includes (i) one or more of the tetrahydrocannabinols (as listed in 21
C.F.R. Sec. 1308.11(d)(25)) and (ii) at least two of the following:
cannabinol, cannabidiol, or cannabichromene, and (iii) is essentially
free of plant material (e.g., plant fragments). Typically, hashish oil
is a viscous, dark colored oil, but it can vary from a dry resin to a
colorless liquid.''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 1 by inserting the following additional paragraph at
the end:
``Similarly, in the case of marijuana having a moisture content
that renders the marijuana unsuitable for consumption without drying
(this might occur, for example with a bale of rain-soaked marijuana or
freshly harvested marijuana that had not been dried), an approximation
of the weight of the marijuana without such excess moisture content is
to be used.''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 3 by deleting:
``The adjustment should be applied if the weapon was present,
unless it is clearly improbable that the weapon was connected with the
offense. For [[Page 2458]] example, the enhancement would not be
applied if the defendant, arrested at his residence, had an unloaded
hunting rifle in the closet.'',
And inserting in lieu thereof:
``This adjustment will apply whenever the defendant, or a person
for whose conduct the defendant is accountable under Sec. 1B1.3
(Relevant Conduct), possessed a dangerous weapon in connection with the
offense. If a weapon was present during the offense (e.g., a weapon was
found at the same location as the controlled substance), there shall be
a rebuttable presumption that it was possessed in connection with the
offense.'';
And by deleting ``The enhancement'' and inserting in lieu thereof
``This adjustment''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 10 in the Drug Equivalency Table in the subdivision
captioned ``Schedule I or II Opiates'' by inserting at the end:
``1 gm of levo-alpha-acetylmethadol (LAAM)=3 kg of marijuana''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 10 in the Drug Equivalency Table in the subdivision
captioned ``Cocaine and Other Schedule I and II Stimulants'' by
deleting:
``1 gm of L-Methamphetamine/Levo-methamphetamine/L-
Desoxyephedrine=40 gm of marijuana'';
And by inserting:
``1 gm of khat=.01 gm of marijuana''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 12 by deleting:
``In an offense involving negotiation to traffic in a controlled
substance, the weight under negotiation in an uncompleted distribution
shall be used to calculate the applicable amount. However, where the
court finds that the defendant did not intend to produce and was not
reasonably capable of producing the negotiated amount, the court shall
exclude from the guideline calculation the amount that it finds the
defendant did not intend to produce and was not reasonably capable of
producing.'',
And by inserting in lieu thereof:
``In an offense involving an agreement to sell a controlled
substance, the agreed-upon quantity of the controlled substance shall
be used to determine the offense level unless the sale is completed and
the amount delivered more accurately reflects the scale of the offense.
For example, a defendant agrees to sell 500 grams of cocaine, the
transaction is completed by the delivery of the controlled substance--
actually 480 grams of cocaine, and no further delivery is scheduled. In
this example, the amount delivered more accurately reflects the scale
of the offense. In contrast, in a reverse sting, the agreed-upon
quantity of the controlled substance would more accurately reflect the
scale of the offense because the amount actually delivered is
controlled by the government, not by the defendant. If, however, the
court finds that the defendant did not intend to produce, or was not
reasonably capable of producing, the agreed-upon quantity of the
controlled substance, the court shall exclude from the offense level
determination the amount of controlled substance that it finds the
defendant did not intend to produce or was not reasonably capable of
producing.''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended by inserting the following additional notes:
``20. For purposes of the guidelines, a `plant' is an organism
having leaves and a readily observable root formation (e.g., a
marijuana cutting having roots, a rootball, or root hairs is a
marijuana plant).
21. In an unusual case, the actual quantity or type of a controlled
substance that the defendant possessed (and thus for which the
defendant is accountable under subsection Sec. 1B1.3(a)(1)) may have
neither been known nor reasonably foreseeable to the defendant (e.g.,
the defendant agreed to store a parcel believing it contained a small
quantity of marijuana and, under the circumstances of the particular
case, it was not reasonably foreseeable that the parcel, in fact,
contained a large quantity of heroin). In such a case, if the gap
between the actual amount of the controlled substance and what the
defendant could reasonably have foreseen is substantial, a downward
departure may be warranted.
22. In a case involving a clandestine laboratory in which the
manufacture of a controlled substance has not been completed it is
necessary to determine the laboratory's expected yield in order to
determine the appropriate offense level. The Drug Enforcement Agency
usually provides an estimate of the amount of controlled substance
capable of being produced (Clandestine Laboratory Report--DEA 500),
based on the precursor chemicals on hand, in terms of theoretical
yield. (Theoretical yield is based on the assumption that all of the
precursors interact perfectly with each other, a situation that occurs
only in theory.) Use [50%] of the theoretical yield for the [most]
[least] precursor chemical on hand to determine the expected yield (the
amount of the controlled substance actually expected from the
precursors chemicals on hand), unless the government or defense provide
sufficient information for a more accurate assessment of the expected
yield.
23. For the purposes of this guideline, all controlled substances
possessed in connection with the offense are to be included. If the
defendant establishes that a portion of the amount possessed was
intended for personal consumption, rather than distribution, a downward
departure may be warranted to the guideline range that would have been
applicable had that portion of the controlled substance not been
included.''.
The Commentary to Sec. 2D1.2 captioned ``Application Note'' is
amended by deleting ``Note'' and inserting in lieu thereof ``Notes'';
and by inserting the following additional note:
``2. If the offense was committed at or near a protected location,
but (A) the offense did not create any increased risk for those this
guideline was intended to protect; or (B) the location was determined
by law enforcement agents rather than by the defendant, a downward
departure (to the offense level that would have applied if the offense
had not involved a protected location) may be warranted.''.
The Commentary to Sec. 2D1.8 captioned ``Application Notes'' is
amended in Note 1 by inserting ``trafficking'' immediately following
``controlled substance'' wherever the latter term appears; by deleting
``a defendant who arranged for the use of the premises for the purpose
of facilitating a drug transaction,''; by inserting ``at the same
time'' immediately following ``more than one premises''; by inserting
``significantly'' immediately before ``assisted''; and by deleting the
last sentence.
The Commentary to Sec. 2D1.11 captioned ``Application Notes'' is
amended in Note 1 by deleting:
``The adjustment in subsection (b)(1) should be applied if the
weapon was present, unless it is improbable that the weapon was
connected with the offense.'',
And by inserting in lieu thereof:
``The adjustment in subsection (b)(1) will apply whenever the
defendant, or a person for whose conduct the defendant is accountable
under Sec. 1B1.3 (Relevant Conduct), possessed a dangerous weapon in
connection with the offense. If a weapon was present during the offense
(e.g., a weapon was found at the same location as the controlled
substance), there shall be a rebuttable presumption that it was
possessed in connection with the offense.''.
[[Page 2459]]
Approach 2
43. Synopsis of Proposed Amendment: When Congress enacted the Anti-
Drug Abuse Act of 1986, it targeted the drug kingpins and mid-level
managers for stiff penalties. To effect its objective, Congress used
drug quantity as a proxy for seriousness of the offense and indicia of
large drug organizations. Unintended consequences resulted from such an
approach, principally low-level, non-violent drug offenders were snared
by the quantity net. The attached proposal attempts to address these
unintended consequences by offering an alternative to the present
guideline for drug trafficking, Sec. 2D1.1. Under this proposal,
sentences for drug traffickers will not be determined on the basis of
drug quantity. Instead sentences will be based on the type of drug in
conjunction with other important sentencing factors identified by
Congress as critical, such as the use and possession of weapons,
related violence, and defendant culpability.
This proposed amendment shows two options. Option 1 abandons drug
quantity as the measure of offense seriousness and relies instead on an
array of factors to determine appropriate sanctions for drug
traffickers. Specific offense characteristics for use of a weapon,
weapon type, injury, and function and culpability in the offense
provide additional sentence distinctions. By removing consideration of
drug quantity, this proposed amendment simplifies the application of
the drug guideline as there will be no need to determine the amount of
drugs trafficked, or to calculate the amount of drugs attributed to
each defendant in the drug conspiracy under the provisions of the
relevant conduct guideline. Drug amount will no longer be a
consideration, except that extremely large or small amounts may be a
factor that could warrant departure. Instead, the court will simply
determine the type of drug trafficked. Furthermore, this proposal
provides greater increases in offense levels for defendants who use or
possess firearms or who cause bodily injury. In addition, factors
distinguishing defendant culpability on the basis of the function the
defendant performed in the offense will become part of the drug
guideline, rather than as role consideration in Chapter Three.
The seriousness of the drug trafficking offenses is currently
determined primarily on the basis of the quantity of drugs involved.
The current drug guideline structure presumes that the quantity of
drugs involved in the offense is a reliable indicator of offense
seriousness in every case. Although quantity has the appearance of
being non-subjective and easily determined, it can be significantly
influenced by other factors such as the duration of the investigation,
the fortuity of timing, and the plea negotiation process. For example,
a distributor of cocaine could have an offense level as low as level 12
if the offense involved just one ``buy-bust,'' or as high as level 38
if the investigation continued and involved repeated distributions.
Practitioners report that determining the amount of drugs that each
member of a large drug conspiracy is held accountable for at sentencing
can be a daunting, speculative, and time-consuming task.
This proposed amendment has three base offense levels, while the
current drug guideline has seventeen. The highest base offense level is
for the most serious drugs: heroin, cocaine, and cocaine base. Imbedded
in the current drug guideline and the mandatory minimum penalty
structure is the premise that drugs of varying types pose varying
degrees of harm. These three base offense levels reflect this
distinction. Most would agree that heroin, cocaine, and cocaine base
pose the greatest degree of harm, and that marijuana and hashish create
lesser harms. Ranking of methamphetamine, LSD, and PCP is posited with
marijuana and hashish. A third level is reserved for those drugs
arguably less harmful, Schedules III, IV, and V controlled substances.
This proposed amendment also provides offense level increases based
upon the type and use of weapons involved in the offense: 2, 3, 4, 5,
6, or 7 levels depending on the use and type of weapon. This increase
only applies, however, if the defendant committed the act of weapon
possession or use, or directed or induced another participant to do so.
An additional increase of two levels is provided if the weapon involved
was of the type listed in 26 U.S.C. Sec. 5845(a) (e.g., machineguns,
sawed-off shotguns, silencers, destructive devices).
The role considerations found in Chapter Three are moved into the
drug guideline in this proposed amendment. The size of the drug
organization becomes a proxy for drug quantity. The current drug
guideline uses quantity as a proxy for role and culpability, and this
results in many ``false positives'' when the quantity is great but the
defendant's culpability is not. This proposal addresses role and
culpability directly and adds a 10- level increase for leaders of drug
organizations of 30 or more participants on the premise that this size
organization was able to distribute, import, or manufacture large
quantities of drugs. This increase, unlike the quantity increases in
the current guideline, only results for defendants who are kingpins and
mid-level dealers in the offense, as Congress intended. The current
aggravating role guideline contains two primary considerations, role
and the number of participants in the offense. This proposal separates
these factors into two specific offense characteristics for operational
simplicity.
This proposed amendment provides a 2-level reduction for peripheral
defendants. The term ``peripheral'' was used instead of minimal and
minor because the case law interpreting these terms and the mitigating
role guideline (Sec. 3B1.2) is not useful in the context of this
guideline configuration. Without quantity to drive offense levels too
high, the need to apply the mitigating role adjustment to reduce
offense levels is greatly relieved. For example, the current quantity-
based guideline frequently produced offense levels for couriers, mules,
and street-level dealers well beyond five- and ten-year mandatory
minimum sentences. Considerable pressure exists to view these
defendants as having a mitigating role so their sentences could be
reduced. The desired result seemed to be influencing the interpretation
of who received the mitigating role reduction. Without quantity to
drive offense levels up, the need to see those who actually import and
distribute drugs as minor or minimal participants is eliminated.
Option 2 substitutes a limited quantity measure for the specific
offense characteristic in Option 1 pertaining to the size of the
organization. It does this by providing four quantity distinctions. The
first distinction is built into the base offense level, and will
provide for no increase unless the defendant is associated with the
type and amount of drug specified in (c)(3) of the proposal's Drug
Quantity Table. Two levels are added for drug amounts associated with
offense levels 26 through 30 in the current Drug Quantity Table. Four
levels are added for amounts associated with levels 32 and 34, and six
levels for amounts associated with levels 36 and 38. Specific offense
characteristic (b)(1) specifies that the increases for drug amount are
based on the greatest amount of drugs that the defendant was associated
with on any one occasion. By controlling the time factor, the guideline
will screen more effectively for large-scale traffickers. For example,
when drug amounts are aggregated over time (as with the current drug
guideline) the same offense levels are added for the defendant who
imports on one occasion [[Page 2460]] five kilos of cocaine as for the
defendant who distributes five kilos over an extended period in fifty
gram amounts. This proposal will add offense level increases for large
drug quantities, while limiting the impact of drug amount aggregation
over time. This structure is designed to target the mid-level dealers
and kingpins associated with large amounts, as Congress intended.
Proposed Amendment: Section 2D1.1 is deleted in its entirety and
the following inserted in lieu thereof:
[Option 1: ``Sec. 2D1.1. Unlawful Manufacturing, Importing,
Exporting, or Trafficking (Including Possession with Intent to Commit
These Offenses); Attempt or Conspiracy
(a) Base Offense Level (Apply the greatest):
(1) 20-28, if the substance is heroin or any other Schedule I or II
opiate or opium derivative, cocaine, cocaine base, or an analogue of
these; or
(2) 18-26, if the substance is marijuana, hashish, methamphetamine,
PCP, LSD, or any Schedule I or II substance not described in subsection
(a)(1); or
(3) 10-18, if the substance is any substance not described in
subsections (a)(1) or (a)(2).
(b) Specific Offense Characteristics
(1) If the offense involved multiple drug transactions and the
defendant's involvement continued for a period of more than [60] [90]
days, increase by 2 levels.
(2) If the defendant (or another participant that the defendant
directed or induced):
(A) discharged a firearm, increase by 7 levels;
(B) otherwise used a firearm, increase by 6 levels;
(C) brandished, displayed, or possessed a firearm, increase by 5
levels;
(D) otherwise used a dangerous weapon, increase by 4 levels;
(E) brandished, displayed, or possessed a dangerous weapon,
increase by 3 levels; or
(F) made an express threat of death, increase by 2 levels.
(3) If the weapon involved was a firearm or destructive device of a
type listed in 26 U.S.C. Sec. 5845(a), increase by 2 levels.
(4) If the defendant (or another participant that the defendant
directed or induced) caused any person to sustain bodily injury,
increase the offense level according to the seriousness of the injury:
------------------------------------------------------------------------
Increase in
Degree of bodily injury level
------------------------------------------------------------------------
(A) Bodily Injury......................................... Add 2.
(B) Serious Bodily Injury................................. Add 4.
(C) Permanent or Life-Threatening Bodily Injury........... Add 6.
------------------------------------------------------------------------
Provided, that the cumulative adjustments from (2) and (4) shall
not exceed 11 levels.
(5) If the defendant functioned in the offense as a (apply the
greater):
(A) leader or organizer, increase by 4 levels; or
(B) manager or supervisor, increase by 2 levels.
(6) If the defendant qualifies for the adjustment from subsection
(b)(5)(A), and the defendant committed the offense in concert with the
number of other participants listed below, increase as follows (apply
the greatest):
------------------------------------------------------------------------
Increase in
Number of participants level
------------------------------------------------------------------------
(A) 30 or more............................................ Add 6.
(B) 15-29................................................. Add 4.
(C) 5-14.................................................. Add 2.
------------------------------------------------------------------------
(7) If the defendant functioned in the offense as a peripheral,
decrease by 2 levels.
(8) If the defendant unlawfully imported or exported a controlled
substance under circumstances in which (A) an aircraft other than a
regularly scheduled commercial air carrier was used to import or export
the controlled substance, or (B) the defendant acted as a pilot,
copilot, captain, navigator, flight officer, or any other operation
officer aboard any craft or vessel carrying a controlled substance,
increase by 2 levels. If the resulting offense level is less than level
26, increase to level 26.
(d) Cross Reference
(1) If a victim was killed under circumstances that would
constitute murder under 18 U.S.C. Sec. 1111 had such killing taken
place within the territorial or maritime jurisdiction of the United
States, apply Sec. 2A1.1 (First Degree Murder).
Commentary
Statutory Provisions: 21 U.S.C. Secs. 841(a), (b)(1)-(3), 960(a),
(b). For additional statutory provision(s), see Appendix A (Statutory
Index).
Application Notes:
1. The base offense level is determined on the basis of the most
serious drug type involved in the offense. Accordingly, types of drugs
not specified in the count of conviction may be considered in
determining the offense level. See Sec. 1B1.3(a)(2) (Relevant Conduct).
2. Do not apply the adjustments for Sec. 3B1.1 (Aggravating Role)
and Sec. 3B1.2 (Mitigating Role) because adjustments for culpability
have been incorporated into specific offense characteristics in
Sec. 2D1.1.
3. `Firearm,' `dangerous weapon,' `otherwise used,' `brandished,'
`bodily injury,' `serious bodily injury,' and `permanent or life-
threatening bodily injury' are defined in the Commentary to Sec. 1B1.1
(Application Instructions). The term `participant' is defined in the
Commentary to Sec. 3B1.1 (Aggravating Role).
4. Firearm or destructive device `listed in 26 U.S.C. Sec. 5845(a)'
includes: (i) any short-barreled rifle or shotgun or any weapon made
therefrom; (ii) a machinegun; (iii) a silencer; (iv) a destructive
device; or (v) any `other weapon,' as that term is defined by 26 U.S.C.
Sec. 5845(e). A firearm listed in 26 U.S.C. Sec. 5845(a) does not
include unaltered handguns or regulation-length rifles or shotguns. For
a more detailed definition, refer to 26 U.S.C. Sec. 5845.
5. The terms `leader' or `organizer' as used in subsection
(b)(5)(A), refer to defendants who act as the principal administrator,
organizer, or leader of the criminal activity or as one of several such
principal administrators, organizers, or leaders. Such defendants are
distinguished by their participation in the planning and organization
of the offense, the degree of control and authority exercised over
others, a claimed right to a larger share of the fruits of the crime,
the exercise of decision-making authority, and the recruitment of
accomplices. Leaders and organizers typically would include defendants
who act as:
a. high-level dealers--defendants who purchase or import drugs and
distribute drugs at the wholesale level (to other high-level or mid-
level drug dealers);
b. mid-level dealers--defendants who distribute at the wholesale
level (to other mid-level and street-level dealers);
c. manufacturers/growers--defendants who grow, cultivate, or
manufacture controlled substances for wholesale distribution and have
an ownership interest in the controlled substance; and
d. financiers--defendants who provide money for purchase,
importation, manufacture, cultivation, transportation, or distribution
of drugs at the wholesale level.
6. The terms `manager' and `supervisor' as used in subsection
(b)(5)(B), refer to defendants who provide material supervision or
management of other participants. Such defendants have some decision-
making authority, but primarily implement the [[Page 2461]] decisions
and directives of the leader(s) or organizer(s). Managers and
supervisors typically would include defendants who act as:
a. lieutenants--defendants who implement the decisions and
directives of a leader or organizer by directing the activities of
other participants.
Note: The terms `manager' and `supervisor' are not intended to
apply to defendants who exercise limited supervision over
participants with equal or lesser roles and whose overall function
within the offense is not one of material supervision or management.
For example, a defendant whose only function was to off-load a
single large shipment of marijuana, and who supervised other off-
loaders of that shipment should not be considered a `supervisor'
under this provision.
7. The term `peripheral' as used in subsection (b)(7), refers to
defendants who perform a limited, low-level function in the criminal
activity. Such defendants normally are among the least culpable of
those involved in the conduct of the group. `Peripherals' typically do
not have any material decision-making authority, do not own the
controlled substance or finance any part of the offense, sell the
controlled substance or play a substantial part in negotiating the
terms of the sale. Defendants who qualify for an adjustment from
subsection (b)(5), subsection (b)(8)(B), or Sec. 3B1.3 (Abuse of a
Position of Trust or Use of Special Skill) do not qualify as a
`peripheral.' Peripherals typically would include defendants who act
as:
a. off-loaders, deck-hands--defendants who perform the physical
labor required to put large quantities of drugs onto some form of
transportation or into storage or hiding, or who act as crew members on
vessels or aircraft used to transport drugs;
b. go-fers--defendants who generally have limited or no contact
with drugs. These defendants run errands, answer the telephone, take
messages, receive packages, and provide early warnings during meetings
or drug exchanges; and
c. enablers--defendants who have a passive role in the offense,
such as knowingly permitting unlawful activity to take place without
acting affirmatively to further such activity. Enablers may be coerced
or unduly influenced to play such a function (e.g., a parent or
grandparent threatened with displacement from a home unless they permit
the activity to take place), or may do so as a favor with little or no
compensation.
8. The statute and guideline also apply to `counterfeit'
substances, which are defined in 21 U.S.C. Sec. 802 to mean controlled
substances that are falsely labeled so as to appear to have been
manufactured or distributed legitimately.
9. Distribution of `a small amount of marijuana for no
remuneration,' 21 U.S.C. Sec. 841(b)(4), is treated as simple
possession, to which Sec. 2D2.1 applies.
10. Where a mandatory minimum sentence applies, this mandatory
minimum sentence may be `waived' and a lower sentence imposed
(including a sentence below the applicable guideline range), as
provided in 28 U.S.C. Sec. 994(n), by reason of a defendant's
`substantial assistance in the investigation or prosecution of another
person who has committed an offense.' See Sec. 5K1.1 (Substantial
Assistance to Authorities).
11. A defendant who used special skills in the commission of the
offense may be subject to an enhancement under Sec. 3B1.3 (Abuse of
Position of Trust or Use of Special Skill). Certain professionals often
occupy essential positions in drug trafficking schemes. These
professionals include doctors, pilots, boat captains, financiers,
bankers, attorneys, chemists, accountants, and others whose special
skill, trade, profession, or position may be used to significantly
facilitate the commission of a drug offense. However, if subsection
(b)(8)(B) applies, do not apply Sec. 3B1.3 (Abuse of Position of Trust
or Use of Special Skill).
12. In an offense involving negotiation to traffic in a controlled
substance, the type of drug under negotiation in an uncompleted
distribution shall be used to calculate the applicable base offense
level.
13. The base offense level is determined by the type of controlled
substance and the schedule of that substance as listed in 21 C.F.R.
Sec. 1308.13-15. Certain pharmaceutical preparations are classified as
Schedule III, IV, or V controlled substances by the Drug Enforcement
Administration under 21 C.F.R. Sec. 1308.13-15 even though they contain
a small amount of a Schedule I or II controlled substance. For example,
Tylenol 3 is classified as a Schedule III controlled substance even
though it contains a small amount of codeine, a Schedule II opiate. For
the purposes of the guidelines, the classification of the controlled
substance under 21 C.F.R. Sec. 1308.13-15 is the appropriate
classification.
14. The quantity of drugs in the offense, when either extremely
large or extremely small, may be an appropriate factor warranting
departure. When the quantity of the controlled substance is [10] [20]
times greater than that listed at Title 21 U.S.C. Sec. 841(b)(1)(A), an
upward departure may be warranted. Conversely, when the quantity of
controlled substance is [1/10th] [1/20th] of that listed at Title 21
U.S.C. Sec. 841(b)(1)(B), a downward departure may be warranted.''.]
[Option 2: ``Sec. 2D1.1. Unlawful Manufacturing, Importing,
Exporting, or Trafficking (Including Possession with Intent to Commit
These Offenses); Attempt or Conspiracy
(a) Base Offense Level (Apply the greatest):
(1) [20-28], if the substance is heroin or any other Schedule I or
II opiate or opium derivative, cocaine, cocaine base, or an analogue of
these; or
(2) [18-26], if the substance is marihuana, hashish,
methamphetamine, PCP, LSD, or any Schedule I or II substance not
described in subsection (a)(1); or
(3) [10-18], if the substance is any substance not described in
subsections (a)(1) or (a)(2).
(b) Specific Offense Characteristics
(1) add the offense levels specified in the Drug Quantity table set
forth is subsection (c) below based on the greatest amount of drugs
that the defendant was associated with on any one occasion.
(2) If the defendant (or another participant that the defendant
directed or induced):
(A) discharged a firearm, increase by 7 levels;
(B) otherwise used a firearm, increase by 6 levels;
(C) brandished, displayed, or possessed firearm, increase by 5
levels;
(D) otherwise used a dangerous weapon, increase by 4 levels;
(E) brandished, displayed, or possessed a dangerous weapon,
increase by 3 levels; or
(F) made an express threat of death, increase by 2 levels.
(3) If the weapon involved was a firearm or destructive device of a
type listed in 26 U.S.C. Sec. 5845(a), increase by 2 levels.
(4) If the defendant (or another participant that the defendant
directed or induced) caused any person to sustain bodily injury,
increase the offense level according to the seriousness of the injury:
------------------------------------------------------------------------
Increase in
Degree of bodily injury level
------------------------------------------------------------------------
(A) Bodily Injury......................................... Add 2.
(B) Serious Bodily Injury................................. Add 4.
(C) Permanent or Life-Threatening Bodily Injury........... Add 6.
------------------------------------------------------------------------
Provided, however, that the cumulative adjustments from (2) and (4)
shall not exceed 11 levels.
(5) If the defendant functioned in the offense as a (apply the
greater): [[Page 2462]]
(A) leader or organizer, increase by 4 levels; or
(B) manager or supervisor, increase by 2 levels.
(6) If the defendant functioned in the offense as a peripheral,
decrease by 2 levels.
(7) If the defendant unlawfully imported or exported a controlled
substance under circumstances in which (A) an aircraft other than a
regularly scheduled commercial air carrier was used to import or export
the controlled substance, or (B) the defendant acted as a pilot,
copilot, captain, navigator, flight officer, or any other operation
officer aboard any craft or vessel carrying a controlled substance,
increase by 2 levels. If the resulting offense level is less than level
26, increase to level 26.
[Subsection (c) (Drug Quantity Table) is set forth on the following
pages.]
(d) Cross Reference
(1) If a victim was killed under circumstances that would
constitute murder under 18 U.S.C. Sec. 1111 had such killing taken
place within the territorial or maritime jurisdiction of the United
States, apply Sec. 2A1.1 (First Degree Murder).
(c) Drug Quantity Table
------------------------------------------------------------------------
Offense
Controlled substances and quantity* level
increase
------------------------------------------------------------------------
(1) 10 KG or more of Heroin (or the equivalent amount of Add 6.
other Schedule I or II Opiates), PCP, or Methamphetamine;.
50 KG or more of Cocaine (or the equivalent amount of
other Schedule I or II Stimulants), or [X KG]** of
Cocaine Base;
100 G or more of LSD (or the equivalent amount of other
Schedule I or II Hallucinogens);
4 KG or more of Fentanyl;
1 KG or more of a Fentanyl Analogue;
10,000 KG or more of Marijuana;
2,000 KG or more of Hashish;
200 KG or more of Hashish Oil.
(2) At least 1 KG but less than 10 KG of Heroin (or the Add 4.
equivalent amount of other Schedule I or II Opiates),
PCP, or Methamphetamine;.
At least 5 KG but less than 50 KG of Cocaine (or the
equivalent amount of other Schedule I or II
Stimulants), or [X KG**] of Cocaine Base;
At least 10 G but less than 100 G of LSD (or the
equivalent amount of other Schedule I or II
Hallucinogens);
At least 400 G but less than 4 KG of Fentanyl;
At least 100 G but less than 1 KG of a Fentanyl
Analogue;
At least 1,000 KG but less than 10,000 KG of Marihuana;
At least 200 KG but less than 2,000 KG of Hashish;
At least 20 KG but less than 200 KG of Hashish Oil.
(3) At least 100 G but less than 1 KG of Heroin (or the Add 2.
equivalent amount of other Schedule I or II Opiates),
PCP, or Methamphetamine;.
At least 500 G but less than 5 KG of Cocaine (or the
equivalent amount of other Schedule I or II
Stimulants), or [X G**] of Cocaine Base;
At least 1 G but less than 10 G of LSD (or the
equivalent amount of other Schedule I or II
Hallucinogens);
At least 40 G but less than 400 G of Fentanyl;
At least 10 G but less than 100 G of a Fentanyl
Analogue;
At least 100 KG but less than 1,000 KG of Marihuana;
At least 20 KG but less than 200 KG of Hashish;
At least 2 KG but less than 20 KG of Hashish Oil.
------------------------------------------------------------------------
*Unless otherwise specified, the weight of a controlled substance set
forth in the table refers to the entire weight of any mixture or
substance containing a detectable amount of the controlled substance.
If a mixture or substance contains more than one controlled substance,
the weight of the entire mixture or substance is assigned to the
controlled substance that results in the greater offense level.
**Comment is invited on the appropriate ratio of cocaine base to
cocaine.
`Cocaine base,' for the purposes of this guideline, means `crack.'
`Crack' is the street name for a form of cocaine base, usually prepared
by processing cocaine hydrochloride and sodium bicarbonate, and usually
appearing in a lumpy, rocklike form.
In the case of an offense involving marijuana plants treat each
plant as equivalent to 100 G of marihuana. Provided, however, that if
the actual weight of the marijuana is greater, use the actual weight of
the marihuana.
In the case of LSD on a carrier medium (e.g., a sheet of blotter
paper), do not use the weight of the LSD/carrier medium. Instead, treat
each dose of LSD on the carrier medium as equal to 0.4 mg of LSD for
the purposes of the Drug Quantity Table.
Commentary
Statutory Provisions: 21 U.S.C. Secs. 841(a), (b)(1)-(3), 960(a),
(b). For additional statutory provision(s), see Appendix A (Statutory
Index).
Application Notes:
1. The base offense level is determined on the basis of the most
serious drug type involved in the offense. Accordingly, types of drugs
not specified in the count of conviction may be considered in
determining the offense level. See Sec. 1B1.3(a)(2) (Relevant Conduct).
2. Do not apply the adjustments for Sec. 3B1.1 (Aggravating Role)
and Sec. 3B1.2 (Mitigating Role) because adjustments for culpability
have been incorporated into specific offense characteristics in
Sec. 2D1.1.
3. `Firearm,' `dangerous weapon,' `otherwise used,' `brandished,'
`bodily injury,' `serious bodily injury,' and `permanent or life-
threatening bodily injury' are defined in the Commentary to Sec. 1B1.1
(Application Instructions). The term `participant' is defined in the
Commentary to Sec. 3B1.1 (Aggravating Role).
4. Firearm or destructive device `listed in 26 U.S.C. Sec. 5845(a)'
includes: (i) any short-barreled rifle or shotgun or any weapon made
therefrom; (ii) a machinegun; (iii) a silencer; (iv) a destructive
device; or (v) any `other weapon,' as that term is defined by 26 U.S.C.
Sec. 5845(e). A firearm listed in 26 U.S.C. Sec. 5845(a) does not
include unaltered handguns or regulation-length rifles or shotguns. For
a more detailed definition, refer to 26 U.S.C. Sec. 5845.
5. The terms `leader' or `organizer' as used in subsection
(b)(5)(A), refer to defendants who act as the principal administrator,
organizer, or leader of the criminal activity or as one of several such
principal administrators, organizers, or leaders. Such defendants are
distinguished by their participation in the planning and organization
of the offense, the degree of control and authority exercised over
others, a claimed right to a larger share of the fruits of the crime,
the exercise of decision-making authority, and the recruitment of
accomplices. Leaders and organizers typically would include defendants
who act as:
a. high-level dealers--defendants who purchase or import drugs and
distribute [[Page 2463]] drugs at the wholesale level (to other high-
level or mid-level drug dealers);
b. mid-level dealers--defendants who distribute at the wholesale
level (to other mid-level and street-level dealers);
c. manufacturers/growers--defendants who grow, cultivate, or
manufacture controlled substances for wholesale distribution and have
an ownership interest in the controlled substance; and
d. financiers--defendants who provide money for purchase,
importation, manufacture, cultivation, transportation, or distribution
of drugs at the wholesale level.
6. The terms `manager' and `supervisor' as used in subsection
(b)(5)(B), refer to defendants who provide material supervision or
management of other participants. Such defendants have some decision-
making authority, but primarily implement the decisions and directives
of the leader(s) or organizer(s). Managers and supervisors typically
would include defendants who act as:
a. lieutenants--defendants who implement the decisions and
directives of a leader or organizer by directing the activities of
other participants.
Note: The terms `manager' and `supervisor' are not intended to
apply to defendants who exercise limited supervision over
participants with equal or lesser roles and whose overall function
within the offense is not one of material supervision or management.
For example, a defendant whose only function was to off-load a
single large shipment of marijuana, and who supervised other off-
loaders of that shipment should not be considered a `supervisor'
under this provision.
7. The term `peripheral' as used in subsection (b)(6), refers to
defendants who perform a limited, low-level function in the criminal
activity. Such defendants normally are among the least culpable of
those involved in the conduct of the group. `Peripherals' typically do
not have any material decision-making authority, do not own the
controlled substance or finance any part of the offense, sell the
controlled substance or play a substantial part in negotiating the
terms of the sale. Defendants who qualify for an adjustment from
subsection (b)(5), subsection (b)(7)(B), or Sec. 3B1.3 (Abuse of a
Position of Trust or Use of Special Skill) do not qualify as a
`peripheral.' Peripherals typically would include defendants who act
as:
a. off-loaders, deck-hands--defendants who perform the physical
labor required to put large quantities of drugs onto some form of
transportation or into storage or hiding, or who act as crew members on
vessels or aircraft used to transport drugs;
b. go-fers--defendants who generally have limited or no contact
with drugs. These defendants run errands, answer the telephone, take
messages, receive packages, and provide early warnings during meetings
or drug exchanges; and
c. enablers--defendants who have a passive role in the offense,
such as knowingly permitting unlawful activity to take place without
acting affirmatively to further such activity. Enablers may be coerced
or unduly influenced to play such a function (e.g., a parent or
grandparent threatened with displacement from a home unless they permit
the activity to take place), or may do so as a favor with little or no
compensation.
8. The statute and guideline also apply to `counterfeit'
substances, which are defined in 21 U.S.C. Sec. 802 to mean controlled
substances that are falsely labeled so as to appear to have been
manufactured or distributed legitimately.
9. Distribution of `a small amount of marijuana for no
remuneration,' 21 U.S.C. Sec. 841(b)(4), is treated as simple
possession, to which Sec. 2D2.1 applies.
10. Where a mandatory minimum sentence applies, this mandatory
minimum sentence may be `waived' and a lower sentence imposed
(including a sentence below the applicable guideline range), as
provided in 28 U.S.C. Sec. 994(n), by reason of a defendant's
`substantial assistance in the investigation or prosecution of another
person who has committed an offense.' See Sec. 5K1.1 (Substantial
Assistance to Authorities).
11. A defendant who used special skills in the commission of the
offense may be subject to an enhancement under Sec. 3B1.3 (Abuse of
Position of Trust or Use of Special Skill). Certain professionals often
occupy essential positions in drug trafficking schemes. These
professionals include doctors, pilots, boat captains, financiers,
bankers, attorneys, chemists, accountants, and others whose special
skill, trade, profession, or position may be used to significantly
facilitate the commission of a drug offense. However, if subsection
(b)(7)(B) applies, do not apply Sec. 3B1.3 (Abuse of Position of Trust
or Use of Special Skill).
12. In an offense involving negotiation to traffic in a controlled
substance, the type of drug under negotiation in an uncompleted
distribution shall be used to calculate the applicable base offense
level. However, where the court finds that the defendant did not intend
to produce or was not reasonably capable of producing the negotiated
amount, the court shall exclude from the guideline calculation the drug
type or amount that it finds the defendant did not intend to produce or
was not reasonably capable of producing.
13. The base offense level is determined by the type of controlled
substance and the schedule of that substance as listed in 21 CFR
Sec. 1308.13-15. Certain pharmaceutical preparations are classified as
Schedule III, IV, or V controlled substances by the Drug Enforcement
Administration under 21 CFR Sec. 1308.13-15 even though they contain a
small amount of a Schedule I or II controlled substance. For example,
Tylenol 3 is classified as a Schedule III controlled substance even
though it contains a small amount of codeine, a Schedule II opiate. For
the purposes of the guidelines, the classification of the controlled
substance under 21 CFR Sec. 1308.13-15 is the appropriate
classification.'.]
III. Other Amendments
Chapter Two, Part S (Money Laundering and Monetary Transaction
Reporting)
44. Synopsis of Proposed Amendment: This amendment revises the
guidelines in Chapter Two, Part S (Money Laundering and Monetary
Transaction Reporting). When the Commission promulgated Secs. 2S1.1 and
2S1.2 to govern sentencing for the money laundering and monetary
transaction offenses found at 18 U.S.C. Secs. 1956 and 1957, these
statutes were relatively new and, therefore, the Commission had little
case experience upon which to base the guidelines. Additionally, court
decisions have since construed the elements of these offenses broadly.
This amendment consolidates Secs. 2Sl.l and 2S1.2 for ease of
application, and provides additional modifications with the aim of
better assuring that the offense levels prescribed by these guidelines
comport with the relative seriousness of the offense conduct.
The amendment accomplishes the latter goal chiefly by tying base
offense levels more closely to the underlying conduct that was the
source of the illegal proceeds. If the defendant committed the
underlying offense and the offense level can be determined, subsection
(a)(1) sets the base offense level equal to that for the underlying
offense. In other instances, the base offense level is keyed to the
value of funds involved. The amendment uses specific offense
characteristics to assure greater punishment when the defendant knew or
believed that the transactions were designed to conceal the criminal
nature of the proceeds or when the [[Page 2464]] funds were to be used
to promote further criminal activity. A further increase is provided
under subsection (b)(2) if sophisticated efforts at concealment were
involved.
Subsections (a)(2) and (a)(3) provide ``fallback'' offense levels
that will apply primarily in cases in which the offense level for the
underlying conduct cannot be determined. Subsection (a)(3), designed to
apply when the funds were not known or believed to be derived from drug
trafficking, provides a minimum base offense level of eight. This
number corresponds to the base offense level of six provided in
Sec. 2F1.1 plus two levels for more than minimal planning. Guideline
2F1.1 is used as a point of reference because subsection (a)(3) would
typically be expected to apply in cases involving funds from economic
crimes which are, in turn, typically sentenced by reference to
Sec. 2F1.1. The base offense in subsection (a)(3) assumes that
heartland cases would involve more than minimal planning. Subsection
(a)(2) provides a minimum base offense level of 12 for cases in which
the defendant knew or believed the funds were from drug trafficking.
This approach is consistent with the current guideline structure which
generally treats drug-related offenses as at least four levels more
serious than typical economic offenses (e.g., fraud).
The base offense levels provided for in subsections (a)(2) and
(a)(3) have been bracketed to signal the Commission's interest in
receiving comment on possible modifications to these numbers suggested
by representatives of the defense bar and the Department of Justice.
Defense bar representatives have recommended that the base offense
level in subsection (a)(3) not assume that more than minimal planning
was involved in the underlying conduct and, accordingly, that level 6
rather than level 8 should be used. The Justice Department has
recommended that the Commission consider setting base offense levels in
(a)(2) and (a)(3) four levels higher (i.e., level 16 and 12,
respectively). In addition, the bracketed text in subsection (a)(2)
reflects a request by the Department of Justice that the Commission
invite comment on whether the list of offenses under this subsection
should be expanded beyond offenses involving controlled substances.
Proposed Amendment: Sections 2S1.1 and 2S1.2 are deleted in their
entirety and the following is inserted in lieu thereof:
``Sec. 2S1.1. Laundering of Monetary Instruments; Engaging in
Monetary Transactions in Property Derived from Unlawful Activity
(a) Base Offense Level (Apply the greatest):
(1) The offense level for the underlying offense from which the
funds were derived, if the defendant committed the underlying offense
(or otherwise would be accountable for the commission of the underlying
offense under Sec. 1B1.3 (Relevant Conduct)) and the offense level for
that offense can be determined; or
(2) [12] plus the number of offense levels from the table in
Sec. 2F1.1 (Fraud and Deceit) corresponding to the value of the funds,
if the defendant knew or believed that the funds were the proceeds of
an offense involving the manufacture, importation, or distribution of
controlled substances [or listed chemicals; a crime of violence; or an
offense involving firearms or explosives, national security, or
international terrorism]; or
(3) [8] plus the number of offense levels from the table in
Sec. 2F1.1 (Fraud and Deceit) corresponding to the value of the funds.
(b) Specific Offense Characteristics
(1) If the defendant knew or believed that (A) the financial or
monetary transactions, transfers transportation, or transmissions were
designed in whole or in part to conceal or disguise the proceeds of
criminal conduct, or (B) the funds were to be used to promote further
criminal conduct, increase by 2 levels.
(2) If subsection (b)(1)(A) is applicable and the offense (A)
involved placement of funds into, or movement of funds through or from,
a company or financial institution outside the United States, or (B)
otherwise involved a sophisticated form of money laundering, increase
by 2 levels.
Commentary
Statutory Provisions: 18 U.S.C. Secs. 1956, 1957.
Application Notes:
1. `Value of the funds' means the value of the funds or property
involved in the financial or monetary transactions, transportation,
transfers, or transmissions that the defendant knew or believed (A)
were criminally derived funds or property, or (B) were to be used to
promote criminal conduct.
When a financial or monetary transaction, transfer, transportation,
or transmission involves legitimately derived funds that have been
commingled with criminally derived funds, the value of the funds is the
amount of the criminally derived funds, not the total amount of the
commingled funds. For example, if the defendant deposited $50,000
derived from a bribe together with $25,000 of legitimately derived
funds, the value of the funds is $50,000, not $75,000.
Criminally derived funds are any funds that are derived from a
criminal offense; e.g., in a drug trafficking offense, the total
proceeds of the offense are criminally derived funds. In a case
involving fraud, however, the loss attributable to the offense
occasionally may be considerably less than the value of the criminally
derived funds (e.g., the defendant fraudulently sells stock for
$200,000 that is worth $120,000 and deposits the $200,000 in a bank;
the value of the criminally derived funds is $200,000, but the loss is
$80,000). If the defendant is able to establish that the loss, as
defined in Sec. 2F1.1 (Fraud and Deceit), was less than the value of
the funds (or property) involved in the financial or monetary
transactions, transfers, transportation, or transmissions, the loss
from the offense shall be used as the `value of the funds.'
2. If the defendant is to be sentenced both on a count for an
offense from which the funds were derived and on a count under this
guideline, the counts will be grouped together under subsection (c) of
Sec. 3D1.2 (Groups of Closely-Related Counts).
3. Subsection (b)(1)(A) is intended to provide an increase for
those cases that involve actual money laundering, i.e., efforts to make
criminally derived funds appear to have a legitimate source. This
subsection will apply, for example, when the defendant conducted a
transaction through a straw party or a front company, concealed a
money-laundering transaction in a legitimate business, or used an alias
or otherwise provided false information to disguise the true source or
ownership of the funds.
4. In order for subsection (b)(1)(B) to apply, the defendant must
have known or believed that the funds would be used to promote further
criminal conduct, i.e., criminal conduct beyond the underlying acts
from which the funds were derived.
5. Subsection (b)(2) is designed to provide an additional increase
for those money laundering cases that are more difficult to detect
because sophisticated steps were taken to conceal the origin of the
money. Subsection (b)(2)(B) will apply, for example, if the offense
involved the `layering' of transactions, i.e., the creation of two or
more levels of transaction that were intended to appear legitimate.
Background: The statutes covered by this guideline were enacted as
part of the Anti-Drug Abuse Act of 1986. These statutes cover a wide
range of conduct. [[Page 2465]] For example, they apply to large-scale
operations that engage in international laundering of illegal drug
proceeds. They also apply to a defendant who deposits $11,000 of
fraudulently obtained funds in a bank. In order to achieve
proportionality in sentencing, this guideline generally starts from a
base offense level equivalent to that which would apply to the
specified unlawful activity from which the funds were derived. The
specific offense characteristics provide enhancements if the offense
was designed to conceal or disguise the proceeds of criminal conduct
and if the offense involved sophisticated money laundering.''.
Section 3D1.2(d) is amended in the second paragraph by deleting
``2S1.2,''.
Section 8C2.1(a) is amended by deleting ``2S1.2,''.
The Commentary to Sec. 8C2.4 captioned ``Application Notes'' is
amended in Note 5 by deleting ``Sec. 2S1.2 (Engaging in Monetary
Transactions in Property Derived from Specified Unlawful Activity);''.
Appendix A (Statutory Index) is amended in the line reference to 18
U.S.C. Sec. 1957 by deleting ``2S1.2'' and inserting in lieu thereof
``2S1.1''.
Additional Issue for Comment: The Commission, at the recommendation
of the Practitioners' Advisory Group, invites comment on the following
issues. First, should proposed Sec. 2S1.1, rather than referencing the
table in Sec. 2F1.1, use the following monetary table:
------------------------------------------------------------------------
Increase in
``Value (apply the greatest) level
------------------------------------------------------------------------
(A) $100,000 or less...................................... No increase.
(B) More than $100,000.................................... Add 1.
(C) More than $200,000.................................... Add 2.
(D) More than $350,000.................................... Add 3.
(E) More than $600,000.................................... Add 4.
(F) More than $1,000,000.................................. Add 5.
(G) More than $2,000,000.................................. Add 6.
(H) More than $3,500,000.................................. Add 7.
(I) More than $6,000,000.................................. Add 8.
(J) More than $10,000,000................................. Add 9.
(K) More than $20,000,000................................. Add 10.
(L) More than $35,000,000................................. Add 11.
(M) More than $60,000,000................................. Add 12.
(N) More than $100,000,000................................ Add 13.''?
------------------------------------------------------------------------
Second, should proposed Sec. 2S1.1(a) (2) and (3) apply only when
the offense level under subsection (a)(1) cannot be determined, rather
than if the offense level under subsection (a) (2) or (3) is greater
than under subsection (a)(1)?
Third, should an application note be added providing that if the
offense involved an undercover sting and the court finds that the
government agent influenced the value of the funds involved in the
transaction in order to increase the defendant's guideline level, a
downward departure may be warranted?
Chapter Five, Part D (Supervised Release)
45. Issue for Comment: The Commission, at the request of the
Committee on Criminal Law of the Judicial Conference of the United
States, invites comment on whether the supervised release guidelines
should be amended to permit greater consideration of the individual
defendant's need for supervision after imprisonment, to permit greater
judicial flexibility in the imposition of supervised release, or to
relieve the growing burden on judicial resources devoted to supervising
defendants. Specifically, should Sec. 5D1.1 be amended to eliminate the
current requirement that supervised release be imposed in a case in
which a defendant is sentenced to a term of imprisonment exceeding one
year? Should Sec. 5D1.2 be amended to reduce the terms of supervised
release required to be imposed? If so, what should be the minimum term
required, if any?
Chapter Five, Part G (Implementing the Total Sentence of Imprisonment)
46. Synopsis of Proposed Amendment: This amendment addresses the
operation of Sec. 5G1.3. Two options are shown. These options set forth
different ways of providing additional guidance addressing this
inherently complex area.
Proposed Amendment: [Option 1: Section 5G1.3(c) is deleted and the
following inserted in lieu thereof:
``(c) (Policy Statement) In any other case, the sentence for the
instant offense shall be imposed consecutively, concurrently, or
partially concurrently to the prior unexpired term of imprisonment in
order to achieve an appropriate total punishment. In determining the
appropriate total punishment, the court shall consider the guideline
range that would have been applicable had the instant offense and the
offense for which the defendant is serving the undischarged term of
imprisonment both been federal offenses for which sentences were being
imposed at the same time under Sec. 5G1.2 (Sentencing on Multiple
Counts of Conviction), provided sufficient information is available to
make a reasonable estimate of that guideline range. If sufficient
information is not available for such estimate, the court may use any
reasonable method to determine the appropriate total punishment.''.
The Commentary to Sec. 5G1.3 captioned ``Application Notes'' is
amended in Note 2 by deleting the second paragraph and inserting in
lieu thereof:
``When a sentence is imposed pursuant to subsection (b), the court
should adjust the sentence for any period of imprisonment already
served as a result of the conduct taken into account in determining the
guideline range for the instant offense if that period of imprisonment
will not be credited to the federal sentence by the Bureau of Prisons.
Example: The defendant has been convicted of a federal offense charging
the sale of 30 grams of cocaine. Under Sec. 1B1.3 (Relevant Conduct),
the defendant is held accountable for the sale of an additional 15
grams of cocaine that is part of the same course of conduct for which
the defendant has been convicted and sentenced in state court. The
defendant received a nine-month sentence of imprisonment for this state
offense and has served six months on this sentence at the time of
sentencing on the instant federal offense. The guideline range
applicable to the defendant is 10-16 months (Chapter Two offense level
of 14 for sale of 45 grams of cocaine; 2-level reduction for acceptance
of responsibility; final offense level of 12; Criminal History Category
I). The court determines that a sentence of 13 months provides the
appropriate total punishment. Because the defendant has already served
six months on the related state charge as of the date of sentencing on
the instant federal offense, a sentence of seven months, imposed to run
concurrently with the remainder of the defendant's state sentence,
achieves this result. For clarity, the court should note on the
Judgment in a Criminal Case Order that the sentence imposed is not a
departure from the guidelines because the defendant has been credited
for guideline purposes under Sec. 5G1.3(b) with six months served in
state custody that will not be credited to the federal sentence under
18 U.S.C. Sec. 3585(b).''.
The Commentary to Sec. 5G1.3 captioned ``Application Notes'' is
amended by deleting Notes 3 and 4 and inserting in lieu thereof:
``3. In circumstances not covered under subsection (a) or (b),
subsection (c) applies. Under subsection (c), the court shall, to the
extent practicable, impose a sentence for the instant offense that
results in a combined sentence that approximates the total (aggregate)
punishment that would have been imposed under Sec. 5G1.2 (Sentencing on
Multiple Counts of Conviction) had all of the offenses been federal
offenses for which sentences were being imposed at the same time. This
determination frequently may require an [[Page 2466]] approximation
because the information available about the previously sentenced
offense may be limited. For example, if the undischarged term of
imprisonment resulted from a state offense, the information available
may permit only a rough estimate of the total punishment guideline
range. If the undischarged term of imprisonment resulted from a federal
offense to which the guidelines applied, the task will be somewhat more
straightforward, although a precise determination may not be possible
even in these cases. It is not intended that the above methodology be
applied in a manner that unduly complicates or prolongs the sentencing
process. If a reasonable estimate of the applicable total punishment
guideline range under Sec. 5G1.2 cannot be made from the information
available, the court may use any reasonable method to determine an
appropriate total punishment.
The purpose of this provision is illustrated by the following
examples. Example (1): A defendant with no prior convictions robs two
banks in different federal judicial districts. The first offense is a
level 27 offense; the second offense is a level 24 offense. The charges
are consolidated and the defendant pleads guilty and accepts
responsibility for his conduct. The final offense level is 27 (the two
offenses result in a level 29 under the multiple count rules, reduced
by two levels for acceptance of responsibility). The defendant is in
Criminal History Category I. The applicable guideline range is 70-87
months. There are no aggravating or mitigating factors sufficient to
warrant a guideline departure. Example (2): The same circumstances
exist as in Example (1) except that the charges are not consolidated.
The defendant first pleads guilty and accepts responsibility for the
level 27 offense. The guideline range is 57-71 months (final offense
level 25, Criminal History Category I). The defendant is sentenced to
65 months. Shortly thereafter, the defendant pleads guilty and accepts
responsibility for the level 24 offense. The guideline range is 46-57
months (final offense level 22, Criminal History Category II). The
defendant has served 2 months on the first sentence at the time of
sentencing on the second offense. If, in Example 2, the sentencing
court imposed a sentence within the applicable guideline range for the
second offense, and ordered that sentence to run consecutively to the
first sentence, the aggregate term of imprisonment (between 111 and 122
months) would be substantially higher than the guideline range of 70-87
months that would have been applicable had the defendant been sentenced
for both offenses at the same time. On the other hand, if such sentence
were imposed to run concurrently, the aggregate term of imprisonment
(65 months) would provide no additional punishment for the second
offense and would be lower than the guideline range of 70-87 months
that would have been applicable had the defendant been sentenced for
both offenses at the same time. Subsection (c) is designed to provide a
methodology to allow the court, to the extent practicable, to impose a
total punishment that approximates the total punishment that would have
been imposed had the sentences both been federal sentences imposed at
the same time under Sec. 5G1.2 (Sentencing on Multiple Counts of
Conviction).
4. The application of subsection (c) has the following steps:
(1) the court determines the guideline range for the instant
offense (as in any case);
(2) the court determines, to the extent feasible, the total
punishment that it would have imposed under Sec. 5G1.2 (Sentencing on
Multiple Counts of Conviction) had all the offenses (the instant
offense and any offense resulting in the undischarged term of
imprisonment) been federal offenses for which sentences were being
imposed at the same time. If a reasonable estimate of the total
punishment guideline range cannot be made using this method, the court
may use any reasonable method for determining an appropriate total
punishment;
(3) the court then determines the specific sentence for the instant
offense, and whether that sentence will run concurrently, partially
concurrently, or consecutively to the remainder of the undischarged
term of imprisonment. The objective is to impose a sentence that (i) is
consistent with the guideline range for the instant offense (assuming
no aggravating or mitigating factors warranting a departure), and (ii)
is structured in such a way that the resulting aggregate term of
imprisonment will reflect the appropriate total punishment.
The form of the sentence that will best accomplish the objectives
of this provision will depend upon the length and type of the
undischarged term of imprisonment and the amount of time the defendant
has served on that sentence. The following examples show the
application of this provision to a variety of typical cases.
Examples:
(A) The guideline range applicable to the instant offense is 24-30
months. Sufficient information is available to establish that the
combined guideline range would have been 30-37 months if both the
instant offense and the offense resulting in the undischarged term of
imprisonment had been federal offenses that were being sentenced at the
same time. The court determines that a sentence of 36 months'
imprisonment would provide the appropriate total punishment. The
undischarged term of imprisonment is an indeterminate sentence of
imprisonment with a 60-month maximum. At the time of sentencing on the
instant offense, the defendant has served 10 months on that sentence.
In this case, a sentence of 26 months' imprisonment to be served
concurrently with the remainder of the undischarged term of
imprisonment would (1) be within the guideline range for the instant
offense, and (2) achieve the appropriate total punishment.
(B) The guideline range applicable to the instant offense is 24-30
months. Sufficient information is available to establish that the
combined guideline range would have been 30-37 months if both the
instant offense and the offense resulting in the undischarged term of
imprisonment had been federal offenses that were being sentenced at the
same time. The court determines that a sentence of 36 months'
imprisonment would provide the appropriate total punishment. The
undischarged term of imprisonment is a six-month determinate sentence.
At the time of sentencing on the instant offense, the defendant has
served 3 months on that sentence. In this case, a sentence of 30
months' imprisonment to be served consecutively to the undischarged
term of imprisonment would (1) be within the guideline range for the
instant offense, and (2) achieve the appropriate incremental penalty.
(C) The guideline range applicable to the instant offense is 24-30
months. Sufficient information is available to establish that the
combined guideline range would have been 30-37 months if both the
instant offense and the offense resulting in the undischarged term of
imprisonment had been federal offenses that were being sentenced at the
same time. The court determines that a sentence of 36 months'
imprisonment would provide the appropriate total punishment. The
undischarged term of imprisonment is an indeterminate sentence with a
60-month maximum. At the time of sentencing on the instant offense
(April 1, 1994), the defendant has served 2 months on that sentence. In
this case, a sentence of 30 months' imprisonment to commence upon the
defendant's release from imprisonment on the undischarged term of
imprisonment, or on August 1, 1994, [[Page 2467]] whichever is earlier,
would (1) be within the guideline range for the instant offense and (2)
achieve the appropriate total penalty. Note that if the defendant was
released from state custody prior to August 1, 1994, the sentence for
the instant offense will be fully consecutive to the state sentence. If
the defendant is still in state custody as of August 1, 1994, the
sentence for the instant offense will be concurrent with the remainder
of the state sentence beginning on that date. See Application Note 5
below for the procedure to use in imposing a partially concurrent
sentence.
(D) The applicable guideline range for the instant offense is 24-30
months. Sufficient information is available to establish that the
combined guideline range would have been 30-37 months if both the
instant offense and the offense resulting in the undischarged term of
imprisonment been federal offenses that were being sentenced at the
same time. The court determines that a sentence of 36 months'
imprisonment would provide the appropriate total punishment. The
undischarged term of imprisonment is an indeterminate state sentence
with a 60-month maximum. At the time of sentencing on the instant
offense (April 1, 1994), the defendant has served 24 months on the
state sentence. In this case, a downward departure to a sentence of 12
months' imprisonment to be served concurrently with the remainder of
the undischarged term of imprisonment would be appropriate to achieve
the appropriate total punishment.
(E) The guideline range applicable to the instant offense is 24-30
months. Because of a lack of information, the combined guideline range
(had both the instant offense and the offense resulting in the
undischarged term of imprisonment offenses been federal offenses that
were being sentenced at the same time) cannot reasonably be determined
from the information available. Only a rough estimate of from 30 to 63
months can be made. The court may use any reasonable method to
determine the appropriate total punishment and then impose sentence
using the methods set forth in Examples (A), (B), (C), or (D) above, as
appropriate.
5. To impose a partially concurrent sentence, the court may provide
in the Judgment and Commitment Order that the sentence for the instant
offense shall commence (A) when the defendant is released from the
prior undischarged sentence, or (B) on a specified date, whichever is
earlier. This order provides for a fully consecutive sentence if the
defendant is released on the undischarged term of imprisonment on or
before the date specified in the order, and a partially concurrent
sentence if the defendant is not released on the undischarged term of
imprisonment by that date. See Background Commentary.
6. If a defendant is serving an unexpired term of imprisonment in
connection with a probation, parole, or supervised release violation,
the revocation policy statements in Chapter Seven (Violations of
Probation and Supervised Release) shall be used in determining the
appropriate total punishment as if the defendant had been on federal
probation or supervised release at the time of the violation (i.e., the
guideline range applicable to the violation of probation, parole, or
supervised release is to be added to the guideline range for the
instant offense to determine the total punishment guideline range).
Note that the conduct resulting in the revocation of probation, parole,
or supervised release (rather than the offense that resulted in the
period of probation, parole, or supervised release) is considered in
determining the total punishment range. The sentence for the offense
that resulted in the period of probation, parole, or supervised release
is treated as prior criminal history.
7. In an unusual case, the instant offense may include a count to
which subsection (a) applies and a count to which subsection (b) or (c)
applies. For example, a defendant subject to an unexpired federal term
of imprisonment for a drug offense may be sentenced for two additional
federal offenses--one count pertaining to a drug offense committed
about the same time as the drug offense for which the defendant is
currently serving the unexpired term of imprisonment and one count for
possession of contraband in prison during the unexpired term of
imprisonment. In this case, subsection (a) will apply to the second
count, and subsection (b) or (c) (depending on the specifics of the
case) will apply to the first count. In such a case, in order to
achieve an appropriate total punishment, the determinations under this
section will need to be made separately for the counts to which
subsection (a) applies and the counts to which subsections (b) and (c)
apply. In the above example, subsection (a) will require that any term
of imprisonment on the first count run consecutively to the unexpired
term of imprisonment. Subsections (b) and (c) may call for a different
result (e.g., a concurrent or partially concurrent sentence) on the
second count.
8. Occasionally, a defendant may receive a sentence of imprisonment
on another offense after the completion of the instant offense, yet be
released from imprisonment on that sentence before sentencing on the
instant offense. For example, after the completion of the instant
federal offense, the defendant receives an eighteen-month term of
imprisonment for a state offense. While in state custody, the defendant
is convicted of the instant offense, but sentencing is not scheduled
until after the defendant is released from imprisonment on the state
offense. If subsection (b) would have applied but for the defendant's
release from imprisonment prior to sentencing on the instant offense,
subsection (b) shall continue to apply; i.e., the defendant is to be
given credit for guideline purposes for the time imprisoned on the
prior sentence. If subsection (c) would have applied but for the
defendant's release from imprisonment prior to sentencing on the
instant offense, subsection (c) shall continue to apply to guide the
determination of an appropriate total punishment.''.
The Commentary to Sec. 5G1.3 captioned ``Background'' is amended by
inserting the following additional paragraphs at the end:
``Overlapping sentences, as described in Application Note 5, were
not authorized in the federal system prior to the Sentencing Reform Act
of 1984. The Congress, however, in enacting 28 U.S.C. Sec. 994(l)(1),
clearly contemplated that the new 18 U.S.C. Sec. 3584 would allow the
imposition of overlapping (partially concurrent) sentences in addition
to fully concurrent or consecutive sentences. S. Rep. No. 225, 98th
Cong., 1st Sess. 177 (1983) (`It is the Committee's intent that, to the
extent feasible, the sentences for each of the multiple offenses be
determined separately and the degree to which they should overlap be
specified.'). Without the ability to fashion such a sentence, the
instruction to the Commission to provide a reasonable incremental
penalty for additional offenses in 28 U.S.C. Sec. 994(l)(1) could not
be successfully implemented, particularly if the defendant's release
date on the undischarged term of imprisonment cannot readily be
determined in advance (e.g., in the case of an indeterminate sentence
subject to parole release).
Prior to the Sentencing Reform Act of 1984 (SRA), only the Bureau
of Prisons had the authority to commence a federal sentence before the
defendant's release from imprisonment on a state sentence. See, e.g.,
United States v. Segal, 549 F.2d 1293, 1301 (9th Cir. 1977).
[[Page 2468]] Legislative history pertaining to the new 18 U.S.C.
Sec. 3584 indicates that this section was intended to allow the
sentencing court the authority to determine whether the federal
sentence was to run concurrently or consecutively to a state sentence
of imprisonment. `This * * * [section 3584] changes the law that now
applies to a person sentenced for a Federal offense who is already
serving a term of imprisonment for a state offense.' S. Rep. No. 225,
supra at 127. `Thus, it is intended that this provision be construed
contrary to the holding in United States v. Segal.' Id. at 127 (n.314).
See United States v. Hardesty, 958 F.2d 910, 914 (stating that, under
section 3584, `Congress has expressly granted federal judges the
discretion to impose a sentence concurrent to a state prison term'),
aff'd. en banc, 977 F.2d 1347 (9th Cir. 1992).''.]
[Option 2: Section 5G1.3(c) is deleted and the following inserted
in lieu thereof:
``(c) If--
(1) neither subsection (a) nor subsection (b) applies;
(2) the prior undischarged term of imprisonment resulted from a
federal sentence imposed pursuant to the Sentencing Reform Act; and
(3) such sentence was not a departure from the guidelines,
the applicable range shall be determined by application of the
guidelines to the instant offense(s) and the federal offense(s) for
which the defendant is serving an undischarged term of imprisonment as
if the sentences were being imposed at the same time. A sentence under
this subsection shall be imposed to run concurrently to the
undischarged term of imprisonment, except to the extent a consecutive
sentence is necessary to achieve the appropriate total punishment.
(d) In any other case, the court may use any reasonable method to
determine whether the sentence for the instant offense should be
imposed to run concurrently or consecutively to the undischarged term
of imprisonment.''.
The Commentary to Sec. 5G1.3 captioned ``Application Notes'' is
amended in Note 2 by deleting the second paragraph and inserting in
lieu thereof:
``When a sentence is imposed pursuant to subsection (b) or (c), the
court should adjust the sentence for any period of imprisonment already
served as a result of the conduct taken into account in determining the
guideline range for the instant offense if that period of imprisonment
will not be credited to the federal sentence by the Bureau of Prisons.
Example: The defendant has been convicted of a federal offense charging
the sale of 30 grams of cocaine. Under Sec. 1B1.3 (Relevant Conduct),
the defendant is held accountable for the sale of an additional 15
grams of cocaine that is part of the same course of conduct for which
the defendant has been convicted and sentenced in state court. The
defendant received a nine-month sentence of imprisonment for this state
offense and has served six months at the time of sentencing on the
instant federal offense. The guideline range applicable to the
defendant is 10-16 months (Chapter Two offense level of 14 for sale of
45 grams of cocaine; 2-level reduction for acceptance of
responsibility; final offense level of 12; Criminal History Category
I). The court determines that a sentence of 13 months provides the
appropriate total punishment. Because the defendant has already served
six months on the related state charge as of the date of sentencing on
the instant federal offense, a sentence of seven months, imposed to run
concurrently with the remainder of the defendant's state sentence,
achieves this result. For clarity, the court should note on the
Judgment in a Criminal Case Order that the sentence imposed is not a
departure from the guidelines because the defendant has been credited
for guideline purposes under Sec. 5G1.3(b) with six months served in
state custody that will not be credited to the federal sentence under
18 U.S.C. Sec. 3585(b).''.
The Commentary to Sec. 5G1.3 captioned ``Application Notes'' is
amended by renumbering Note 4 as Note 6; and by deleting Note 3 and
inserting in lieu thereof:
``3. If neither subsection (a) nor (b) applies, and the defendant
is subject to an undischarged term of imprisonment resulting from a
non-departure sentence for a federal offense imposed pursuant to the
Sentencing Reform Act, subsection (c) applies.
Under subsection (c), the court determines the guideline range that
would have been applicable had all the offenses (the instant offense
and the offense(s) resulting in the undischarged term of imprisonment)
been offenses for which sentences were being imposed at the same time.
The purpose of subsection (c) is illustrated by the following
examples. Example (1): A defendant with no prior convictions robs two
banks in different federal judicial districts. The first offense is a
level 27 offense; the second offense is a level 24 offense. The charges
are consolidated and the defendant pleads guilty and accepts
responsibility for his conduct. The final offense level is 27 (the two
offenses result in a level 29 under the multiple count rules, reduced
by two levels for acceptance of responsibility). The defendant is in
Criminal History Category I. The applicable guideline range is 70-87
months. There are no aggravating or mitigating factors sufficient to
warrant a guideline departure. Example (2): The same circumstances
exist as in Example (1) except that the charges are not consolidated.
The defendant first pleads guilty and accepts responsibility for the
level 27 offense. The guideline range is 57-71 months (final offense
level 25, Criminal History Category I). The defendant is sentenced to
65 months. Shortly thereafter, the defendant pleads guilty and accepts
responsibility for the level 24 offense. The guideline range is 46-57
months (final offense level 22, Criminal History Category II). The
defendant has served 2 months on the first sentence at the time of
sentencing on the second offense. If, in Example 2, the sentencing
court imposed a sentence within the applicable guideline range for the
second offense, and ordered that sentence to run consecutively to the
first sentence, the aggregate term of imprisonment (between 111 and 122
months) would be substantially higher than the guideline range of 70-87
months that would have been applicable had the defendant been sentenced
for both offenses at the same time. On the other hand, if such sentence
were imposed to run concurrently, the aggregate term of imprisonment
(65 months) would provide no additional punishment for the second
offense and would be lower than the guideline range of 70-87 months
that would have been applicable had the defendant been sentenced for
both offenses at the same time. Subsection (c) is designed to provide a
methodology to allow the court, to the extent practicable, to impose a
total punishment that approximates the total punishment that would have
been imposed had the sentences both been federal sentences imposed at
the same time.
4. When determining the applicable guideline range under subsection
(c), use the offense level determinations previously established for
the offense resulting in the undischarged term of imprisonment. That
is, this provision does not contemplate a re-examination of the offense
level determinations for the offense resulting in the undischarged term
of imprisonment. Note also that no criminal history points for the
offense resulting in the undischarged term of imprisonment are added in
determining the criminal history category under this subsection.
In the unusual case in which there is insufficient information for
the court to [[Page 2469]] determine the combined guideline range (the
guideline range that would have applied if all the offenses were being
sentenced at the same time), it will not be possible to use subsection
(c); therefore, subsection (d) will apply instead.
5. Under subsection (d), the court shall use any reasonable method
to determine whether the sentence for the instant offense should be
imposed to run concurrently or consecutively to the undischarged term
of imprisonment. Where the court has sufficient information about the
offense conduct that resulted in the undischarged term of imprisonment,
the court should, to the extent practicable, impose a sentence for the
instant offense that results in a combined sentence that approximates
the total (aggregate) punishment that would have been imposed under
Sec. 5G1.2 (Sentencing on Multiple Counts of Conviction) had all of the
offenses been federal offenses for which sentences were being imposed
at the same time. If a reasonable estimate of the applicable total
punishment guideline range under Sec. 5G1.2 cannot be made from the
information available, the court may use any reasonable method to
determine an appropriate total punishment.''.
The Commentary to Sec. 5G1.3 captioned Application Notes is amended
in Note 6 (formerly Note 4) by deleting ``Sec. 7B1.3 and 7B1.4'' and
inserting in lieu thereof ``Chapter Seven''.]
[FR Doc. 95-271 Filed 1-6-95; 8:45 am]
BILLING CODE 2210-40-P
