[Federal Register Volume 60, Number 233 (Tuesday, December 5, 1995)]
[Notices]
[Pages 62289-62292]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29514]
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UNITED STATES SENTENCING COMMISSION
Revisions to the Sentencing Guidelines for the United States
Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice of final action regarding amendments to sentencing
guidelines and policy statements effective November 1, 1995.
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SUMMARY: The Sentencing Commission hereby gives notice of several
amendments to policy statements and commentary made pursuant to its
authority under section 217(a) of the Comprehensive Crime Control Act
of 1984 (28 U.S.C. 994(a) and (u)). The Commission has reviewed
amendments submitted to Congress on May 1, 1995, that may result in a
lower guideline range and has designated one such amendment for
inclusion in policy statement Sec. 1B1.10 (Retroactivity of Amended
Guideline Range). An earlier amendment (effective November 1, 1994) was
also designated for inclusion in policy statement Sec. 1B1.10. Two
amendments, previously passed by the Commission, concerning crack
cocaine and money laundering were disapproved by Congress (Pub. L. 104-
38, 109 Stat. 34 (Oct. 30, 1995)).
DATES: The effective date of these policy statement and commentary
amendments is November 1, 1995.
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 U.S. Government.
The Commission is empowered by 28 U.S.C. 994(a) to promulgate
sentencing guidelines and policy statements for federal sentencing
courts. Sections 994(o) and (p) of title 28, United States Code,
further direct the Commission to periodically review and revise
guidelines and policy statements previously promulgated, and require
that guideline amendments be submitted to Congress for review. Absent
action of the Congress to the contrary, guideline amendments become
effective following 180 days of Congressional review on the date
specified by the Commission (i.e., November 1, 1995). Unlike new
guidelines and amendments to existing guidelines issued pursuant to 28
U.S.C. 994(a) and (p), sentencing policy statements, commentary, and
amendments thereto promulgated by the Commission are not required to be
submitted to Congress for 180 days' review prior to their taking
effect.
In connection with its ongoing review of the Guidelines Manual, the
Commission continues to welcome comment on any aspect of the sentencing
guidelines, policy statements, and official commentary. Comments should
be sent to: United States Sentencing Commission, One Columbus Circle,
N.E., Suite 2-500, Washington, DC 20002-8002, Attn: Office of
Communications.
Authority: Section 217(a) of the Comprehensive Crime Control Act
of 1984 (28 U.S.C. 994(a)).
Richard P. Conaboy,
Chairman.
Additional Revisions to the Guidelines Manual
1. The replacement guideline for Sec. 2H1.1 (see 60 FR 25082
(1995)) is amended by deleting Application Note 1 of the Commentary as
follows:
``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), (3), or (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), (3), or (4), as
applicable, to determine the base offense level.'',
and inserting in lieu thereof:
``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, use the following comparative procedure to determine the
applicable base offense level: (i) determine the underlying offenses
encompassed within the count of conviction as if the defendant had been
charged with a conspiracy to commit multiple offenses. See Application
Note 5 of Sec. 1B1.2 (Applicable Guidelines); (ii) determine the
Chapter Two offense level (i.e., the base offense level, specific
offense characteristics, cross references, and special instructions)
for each such underlying offense; and (iii) compare each of the Chapter
Two offense levels determined above with the alternative base offense
level under subsection (a)(2), (3), or (4). The determination of the
applicable alternative base offense level is to be based on the entire
conduct underlying the count of conviction (i.e., the conduct taken as
a whole). Use the alternative base offense
[[Page 62290]]
level only if it is greater than each of the Chapter Two offense levels
determined above. Otherwise, use the Chapter Two offense levels for
each of the underlying offenses (with each underlying offense treated
as if contained in a separate count of conviction). Then apply
subsection (b) to the alternative base offense level, or to the Chapter
Two offense levels for each of the underlying offenses, as
appropriate.''.
This amendment clarifies the operation of this guideline in cases
involving multiple underlying offenses.
2. Section 5G1.3 is amended by deleting:
``(c) (Policy Statement) In any other case, the sentence for the
instant offense shall be imposed to run consecutively to the prior
undischarged term of imprisonment to the extent necessary to achieve a
reasonable incremental punishment for the instant offense.'',
and inserting in lieu thereof:
``(c) (Policy Statement) In any other case, the sentence for the
instant offense may be imposed to run concurrently, partially
concurrently, or consecutively to the prior undischarged term of
imprisonment to achieve a reasonable punishment for the instant
offense.''.
The Commentary to Sec. 5G1.3 captioned ``Application Notes'' is
amended in Note 1 by inserting ``Consecutive sentence--subsection (a)
cases.'' immediately before ``Under''; and by deleting ``where the
instant offense (or any part thereof)'' and inserting in lieu thereof
``when the instant offense''.
The Commentary to Sec. 5G1.3 captioned ``Application Notes'' is
amended by deleting:
``2. Subsection (b) (which may apply only if subsection (a) does
not apply), addresses cases in which the conduct resulting in the
undischarged term of imprisonment has been fully taken into account
under Sec. 1B1.3 (Relevant Conduct) in determining the offense level
for the instant offense. This can occur, for example, where a defendant
is prosecuted in both federal and state court, or in two or more
federal jurisdictions, for the same criminal conduct or for different
criminal transactions that were part of the same course of conduct.
When a sentence is imposed pursuant to subsection (b), the court
should adjust for any term of imprisonment already served as a result
of the conduct taken into account in determining the sentence for the
instant offense. 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, of which he 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, 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.
3. Where the defendant is subject to an undischarged term of
imprisonment in circumstances other than those set forth in subsections
(a) or (b), subsection (c) applies and the court shall impose a
consecutive sentence to the extent necessary to fashion a sentence
resulting in a reasonable incremental punishment for the multiple
offenses. In some circumstances, such incremental punishment can be
achieved by the imposition of a sentence that is concurrent with the
remainder of the unexpired term of imprisonment. In such cases, a
consecutive sentence is not required. To the extent practicable, the
court should consider a reasonable incremental penalty to be a sentence
for the instant offense that results in a combined sentence of
imprisonment that approximates the total 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. It is recognized that
this determination frequently will require an approximation. Where the
defendant is serving a term of imprisonment for a state offense, the
information available may permit only a rough estimate of the total
punishment that would have been imposed under the guidelines. Where the
offense resulting in the undischarged term of imprisonment is a federal
offense for which a guideline determination has previously been made,
the task will be somewhat more straightforward, although even in such
cases a precise determination may not be possible.
It is not intended that the above methodology be applied in a
manner that unduly complicates or prolongs the sentencing process.
Additionally, this methodology does not, itself, require the court to
depart from the guideline range established for the instant federal
offense. Rather, this methodology is meant to assist the court in
determining the appropriate sentence (e.g., the appropriate point
within the applicable guideline range, whether to order the sentence to
run concurrently or consecutively to the undischarged term of
imprisonment, or whether a departure is warranted). Generally, the
court may achieve an appropriate sentence through its determination of
an appropriate point within the applicable guideline range for the
instant federal offense, combined with its determination of whether
that sentence will run concurrently or consecutively to the
undischarged term of imprisonment.
Illustrations of the Application of Subsection (c):
(A) The guideline range applicable to the instant federal offense
is 24-30 months. The court determines that a total punishment of 36
months' imprisonment would appropriately reflect the instant federal
offense and the offense resulting in the undischarged term of
imprisonment. The undischarged term of imprisonment is an indeterminate
sentence of imprisonment with a 60-month maximum. At the time of
sentencing on the instant federal offense, the defendant has served ten
months on the undischarged term of imprisonment. 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 federal offense, and (2) achieve an
appropriate total punishment (36 months).
(B) The applicable guideline range for the instant federal offense
is 24-30 months. The court determines that a total punishment of 36
months' imprisonment would appropriately reflect the instant federal
offense and the offense resulting in the undischarged term of
imprisonment. The undischarged term of imprisonment is a six-month
determinate sentence. At the time of sentencing on the instant federal
offense, the defendant has served three months on the undischarged term
of imprisonment. In this case, a sentence of 30 months' imprisonment to
be served
[[Page 62291]]
consecutively to the undischarged term of imprisonment would (1) be
within the guideline range for the instant federal offense, and (2)
achieve an appropriate total punishment (36 months).
(C) The applicable guideline range for the instant federal offense
is 24-30 months. The court determines that a total punishment of 60
months' imprisonment would appropriately reflect the instant federal
offense and the offense resulting in the undischarged term of
imprisonment. The undischarged term of imprisonment is a 12-month
determinate sentence. In this case, a sentence of 30 months'
imprisonment to be served consecutively to the undischarged term of
imprisonment would be the greatest sentence imposable without departure
for the instant federal offense.
(D) The applicable guideline range for the instant federal offense
is 24-30 months. The court determines that a total punishment of 36
months' imprisonment would appropriately reflect the instant federal
offense and the offense resulting in the undischarged term of
imprisonment. The undischarged term of imprisonment is an indeterminate
sentence with a 60-month maximum. At the time of sentencing on the
instant federal offense, the defendant has served 22 months on the
undischarged term of imprisonment. In this case, a sentence of 24
months to be served concurrently with the remainder of the undischarged
term of imprisonment would be the lowest sentence imposable without
departure for the instant federal offense.
4. If the defendant was on federal or state probation, parole, or
supervised release at the time of the instant offense, and has had such
probation, parole, or supervised release revoked, the sentence for the
instant offense should be imposed to be served consecutively to the
term imposed for the violation of probation, parole, or supervised
release in order to provide an incremental penalty for the violation of
probation, parole, or supervised release (in accord with the policy
expressed in Secs. 7B1.3 and 7B1.4)'',
and inserting in lieu thereof:
``2. Adjusted concurrent sentence--subsection (b) cases. 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 the court determines that period of
imprisonment will not be credited to the federal sentence by the Bureau
of Prisons. Example: The defendant is 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, an offense for which the defendant has
been convicted and sentenced in state court. The defendant received a
nine-month sentence of imprisonment for the state offense and has
served six months on that 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 three months remaining on 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 guideline range 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).
3. Concurrent or consecutive sentence--subsection (c) cases. In
circumstances not covered under subsection (a) or (b), subsection (c)
applies. Under this subsection, the court may impose a sentence
concurrently, partially concurrently, or consecutively. To achieve a
reasonable punishment and avoid unwarranted disparity, the court should
consider the factors set forth in 18 U.S.C. Sec. 3584 (referencing 18
U.S.C. Sec. 3553(a)) and be cognizant of:
(a) The type (e.g., determinate, indeterminate/parolable) and
length of the prior undischarged sentence;
(b) The time served on the undischarged sentence and the time
likely to be served before release;
(c) The fact that the prior undischarged sentence may have been
imposed in state court rather than federal court, or at a different
time before the same or different federal court; and
(d) Any other circumstance relevant to the determination of an
appropriate sentence for the instant offense.
4. Partially concurrent sentence. In some cases under subsection
(c), a partially concurrent sentence may achieve most appropriately the
desired result. To impose a partially concurrent sentence, the court
may provide in the Judgment in a Criminal Case 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.
5. Complex situations. Occasionally, the court may be faced with a
complex case in which a defendant may be subject to multiple
undischarged terms of imprisonment that seemingly call for the
application of different rules. In such a case, the court may exercise
its discretion in accordance with subsection (c) to fashion a sentence
of appropriate length and structure it to run in any appropriate manner
to achieve a reasonable punishment for the instant offense.
6. Revocations. If the defendant was on federal or state probation,
parole, or supervised release at the time of the instant offense, and
has had such probation, parole, or supervised release revoked, the
sentence for the instant offense should be imposed to run consecutively
to the term imposed for the violation of probation, parole, or
supervised release in order to provide an incremental penalty for the
violation of probation, parole, or supervised release. See Sec. 7B1.3
(Revocation of Probation or Supervised Release) (setting forth a policy
that any imprisonment penalty imposed for violating probation or
supervised release should be consecutive to any sentence of
imprisonment being served or subsequently imposed).''.
The Commentary to Sec. 5G1.3 captioned ``Background'' is amended by
deleting:
``This guideline provides direction to the court when a term of
imprisonment is imposed on a defendant who is already subject to an
undischarged term of imprisonment. See 18 U.S.C. Sec. 3584. Except in
the cases in which subsection (a) applies, this guideline is intended
to result in an appropriate incremental punishment for the instant
offense that most nearly approximates the sentence that would have been
imposed had all the sentences been imposed at the same time.'',
and inserting in lieu thereof:
``In a case in which a defendant is subject to an undischarged
sentence of imprisonment, the court generally has
[[Page 62292]]
authority to impose an imprisonment sentence on the current offense to
run concurrently with or consecutively to the prior undischarged term.
18 U.S.C. Sec. 3584(a). Exercise of that authority, however, is
predicated on the court's consideration of the factors listed in 18
U.S.C. Sec. 3553(a), including any applicable guidelines or policy
statements issued by the Sentencing Commission.''.
This is a two-part amendment. First, this amendment clarifies the
application of subsections (a) and (b) of this guideline. Second, in
circumstances covered by the policy statement in subsection (c), this
amendment affords the sentencing court additional flexibility to
impose, as appropriate, a consecutive, concurrent, or partially
concurrent sentence in order to achieve a reasonable punishment for the
instant offense.
Authority to impose a partially concurrent sentence is found in the
Sentencing Reform Act of 1984 (SRA). In enacting 28 U.S.C.
Sec. 994(l)(1), Congress contemplated that 18 U.S.C. Sec. 3584 would
allow imposition of partially concurrent sentences, in addition to
fully concurrent or consecutive sentences. (``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.'') S. Rep. No. 225, 98th Cong., 1st Sess.
177 (1983). Without the ability to fashion such a sentence, the
instruction to the Commission in 28 U.S.C. Sec. 994(l)(1) to provide a
reasonable incremental penalty for additional offenses could not be
implemented successfully in certain situations, particularly when the
defendant's release date on an undischarged term of imprisonment cannot
be determined readily in advance (e.g., in the case of an indeterminate
sentence subject to parole release).
Prior to the SRA, only the Bureau of Prisons had the authority to
commence a federal sentence prior to 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). SRA legislative history pertaining
to 18 U.S.C. Sec. 3584 indicates that this new section was intended to
authorize imposition of a federal prison sentence to run concurrently
or consecutively to a state prison sentence. ``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).
3. Section 1B1.10(c) is amended by deleting ``and 506'' and
inserting in lieu thereof ``505, 506, and 516''.
The Commentary to Sec. 1B1.10 captioned ``Background'' is amended
in the fourth paragraph by inserting an asterisk immediately following
``old guidelines''; and by inserting, as a note, following the
Background Commentary:
``*So in original. Probably should be `to fall above the amended
guidelines'.''.
This amendment expands the listing in Sec. 1B1.10(d) to implement
the directive in 28 U.S.C. Sec. 994(u) in respect to guideline
amendments that may be considered for retroactive application. The
amendment also makes an editorial addition to the Commentary to
Sec. 1B1.10 (Retroactivity of Amended Guideline Range).
In addition, the Commission has updated the ``Historical Notes''
following the amended guideline sections, and has made a number of
additional minor conforming and editorial revisions to improve the
internal consistency and appearance of the Manual.
[FR Doc. 95-29514 Filed 12-4-95; 8:45 am]
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