[Federal Register Volume 60, Number 90 (Wednesday, May 10, 1995)]
[Notices]
[Pages 25074-25090]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11371]
[[Page 25073]]
_______________________________________________________________________
Part IV
United States Sentencing Commission
_______________________________________________________________________
Amendments to the Sentencing Guidelines for United States Courts;
Notice
Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 /
Notices
[[Page 25074]]
UNITED STATES SENTENCING COMMISSION
Amendments to the Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice of submission to Congress of amendments to the
sentencing guidelines.
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SUMMARY: Pursuant to its authority under section 994(p) of title 28,
United States Code, the United States Sentencing Commission, on May 1,
1995, submitted to the Congress amendments to the sentencing
guidelines, policy statements, and official commentary together with
reasons for the amendments.
DATES: Pursuant to 28 U.S.C. 994(p), the Commission has specified an
effective date of November 1, 1995, for these amendments. Comments
regarding amendments that the Commission should specify for retroactive
application to previously sentenced defendants should be received no
later than June 16, 1995.
ADDRESSES: Comments should be sent to: United States Sentencing
Commission, One Columbus Circle, N.E., Suite 2-500, South Lobby,
Washington, DC 20002-8002, Attn: Public Information.
FOR FURTHER INFORMATION CONTACT: Mike Courlander, Public Information
Specialist, telephone: (202) 273-4590.
SUPPLEMENTARY INFORMATION: The United States Sentencing Commission, an
independent agency in the judicial branch of the U.S. Government, is
empowered by 28 U.S.C. 994(a) to promulgate sentencing guidelines and
policy statements for federal sentencing courts. The statute further
directs the Commission to review periodically and revise 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. 994 (o), (p). Absent action of Congress to the contrary, the
amendments become effective on the date specified by the Commission
(i.e., November 1, 1995) by operation of law.
Notice of the amendments submitted to the Congress on May 1, 1995,
was published in the Federal Registers of January 9, 1995 (60 FR 2430)
and March 15, 1995 (60 FR 14054). A public hearing on the proposed
amendments was held in Washington, DC, on March 14, 1995. After review
of the hearing testimony and additional public comment, the Commission
promulgated the amendments set forth below, each having been approved
by at least four voting Commissioners.
In connection with its ongoing process of guideline review, the
Commission welcomes comment on any aspect of the sentencing guidelines,
policy statements, and official commentary. Specifically, the
Commission solicits comment on which, if any, of the amendments
submitted to the Congress that may result in a lower guideline range
should be made retroactive to previously sentenced defendants under
Policy Statement 1B1.10.
Authority: 28 U.S.C. 994 (a), (o), (p).
Richard P. Conaboy,
Chairman.
Amendments to the Sentencing Guidelines
Pursuant to Section 994(p) of Title 28, United States Code, the
United States Sentencing Commission reports to the Congress the
following amendments to the sentencing guidelines, and the reasons
therefor. As authorized by this section, the Commission specifies an
effective date of November 1, 1995, for these amendments.
Amendments to the Sentencing Guidelines, Policy Statements, and
Official Commentary
1. Amendment: Section 2A2.3 is amended by inserting the following
additional subsection:
``(b) Specific Offense Characteristic
(1) If the offense resulted in substantial bodily injury to an
individual under the age of sixteen years, increase by 4 levels.''.
The Commentary to Sec. 2A2.3 captioned ``Application Notes'' is
amended by inserting the following additional note:
``3. `Substantial bodily injury' means `bodily injury which
involves--(A) a temporary but substantial disfigurement; or (B) a
temporary but substantial loss or impairment of the function of any
bodily member, organ, or mental faculty.' 18 U.S.C. 113(b)(1).''.
Reason for Amendment: This amendment addresses the enactment of 18
U.S.C. 113(a)(7) (pertaining to certain assaults against minors) by
section 170201 of the Violent Crime Control and Law Enforcement Act of
1994.
2. Amendment: The Commentary to Sec. 2A3.1 captioned ``Application
Notes'' is amended by inserting the following additional notes:
``6. If a victim was sexually abused by more than one participant,
an upward departure may be warranted. See Sec. 5K2.8 (Extreme Conduct).
``7. 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.''.
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.''.
The Commentary to Sec. 2A3.3 captioned ``Application Note'' is
amended by deleting ``Note'' and inserting in lieu thereof ``Notes'';
and 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.''.
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.''.
Reason for Amendment: Section 40111 of the Violent Crime Control
and Law Enforcement Act of 1994 doubles the authorized maximum term of
imprisonment for defendants convicted of sexual abuse offenses who have
been convicted previously of aggravated sexual abuse, sexual abuse, or
aggravated sexual contact (18 U.S.C. 2247). Section 40111 also directs
the Sentencing Commission to implement this provision by promulgating
amendments, if appropriate, to the applicable sentencing guidelines.
Although the Chapter Two sexual abuse guidelines do not provide for
enhancement for repeat sex offenses, 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). Section 4B1.1 (Career Offender) also provides
substantially enhanced penalties for offenders who engage in a crime of
violence (including forcible sexual offenses) or controlled substance
trafficking offense, having been sentenced previously on two or more
occasions for offenses of either type. Moreover, Sec. 4A1.3 (Adequacy
of Criminal History category) 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.'' This amendment strengthens the sexual offense
guidelines by expressly listing as a basis for upward departure the
fact that the defendant has a prior sentence for conduct similar to the
instant sexual offense. [[Page 25075]]
Section 40112 of the Violent Crime Control and Law Enforcement Act
of 1994 directs the Commission to conduct a study and consider the
adequacy of the guidelines for sexual offenses with respect to a number
of factors. The provision also requires the preparation of a report to
Congress analyzing federal rape sentences and obtaining comment from
independent experts. See Report to Congress: Analysis of Penalties for
Federal Rape Cases (March 13, 1995). The Commission found that, in
general, the current guidelines provide appropriate penalties for these
offenses. This amendment strengthens Sec. 2A3.1 (Criminal Sexual Abuse;
Attempt to Commit Criminal Sexual Abuse) in one respect by expressly
listing as a basis for an upward departure the fact that a victim was
sexually abused by more than one participant.
3. Amendment: Section 2B1.1(b) is amended by deleting subdivision
(2); and by renumbering the remaining subdivisions, and any references
thereto, accordingly.
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.''.
The Commentary to Sec. 2B1.1 captioned ``Background'' is amended by
deleting the fourth paragraph.
Reason for Amendment: This amendment addresses an inconsistency in
guideline penalties between theft offenses involving the taking of
firearms or controlled substances that are sentenced under Sec. 2B1.1
(Larceny, Embezzlement, and Other Forms of Theft; Receiving,
Transporting, Transferring, Transmitting, or Possessing Stolen
Property) and similar offenses sentenced under Sec. 2D1.1 (Unlawful
Manufacturing, Importing, Exporting, or Trafficking; Attempt or
Conspiracy), Sec. 2D2.1 (Unlawful Possession; Attempt or Conspiracy),
Sec. 2K1.3 (Unlawful Receipt, Possession, or Transportation of
Explosive Materials; Prohibited Transactions Involving Explosive
Materials), or Sec. 2K2.1 (Unlawful Receipt, Possession, or
Transportation of Firearms or Ammunition; Prohibited Transactions
Involving Firearms or Ammunition). It accomplishes this by providing a
cross reference in Sec. 2B1.1 directing the application of Sec. 2D1.1,
Sec. 2D2.1, Sec. 2K1.3, or Sec. 2K2.1, as appropriate, if the resulting
offense level is greater.
4. Amendment: 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 ``Application Notes'' is
amended in Note 2 by deleting ``2B5.2'' and inserting in lieu thereof
``2F1.1''.
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 sixth paragraph:
`` Subsection (b)(4)(B) implements, in a broader form, the
instruction to the Commission in section 110512 of Public Law 103-
322.''.
Reason for 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 for a
defendant convicted of a felony under Chapter 25 (Counterfeiting and
Forgery) of title 18, United States Code, if the defendant used or
carried a firearm during and in relation to the offense. This amendment
implements this directive in a somewhat broader form. In addition, it
corrects an outdated reference in the Commentary to Sec. 2B5.1
(Offenses Involving Counterfeit Bearer Obligations of the United
States).
5. Amendment: Section 2D1.1(b) is amended by deleting subdivision
(1); by renumbering subdivision (2) as (3); and by inserting:
``(1) (Apply the greatest):
(A) If the defendant discharged a firearm, increase by 6 levels,
but if the resulting offense level is less than level 24, increase to
level 24.
(B) If the defendant brandished or otherwise used a dangerous
weapon (including a firearm), increase by 4 levels, but if the
resulting offense level is less than level 19, increase to level 19.
(C) If a dangerous weapon (including a firearm) was possessed,
increase by 3 levels, but if the dangerous weapon was a firearm and the
resulting offense level is less than level 18, increase to level 18.
(2) If the defendant possessed a firearm described in 26 U.S.C.
5845(a) or 18 U.S.C. 921(a)(30), increase by 2 levels.''.
Section 2D1.1(c)(1) is amended by deleting ``1.5 KG or more of
Cocaine Base;''.
Section 2D1.1(c)(2) is amended by deleting ``At least 500 G but
less than 1.5 KG of Cocaine Base;''.
Section 2D1.1(c)(3) is amended by deleting ``At least 150 G but
less than 500 G of Cocaine Base;''.
Section 2D1.1(c)(4) is amended by deleting ``At least 50 G but less
than 150 G of Cocaine Base;''.
Section 2D1.1(c)(5) is amended by deleting ``At least 35 G but less
than 50 G of Cocaine Base;''.
Section 2D1.1(c)(6) is amended by deleting ``At least 20 G but less
than 35 G of Cocaine Base;''.
Section 2D1.1(c)(7) is amended by deleting ``At least 5 G but less
than 20 G of Cocaine Base;''.
Section 2D1.1(c)(8) is amended by deleting ``At least 4 G but less
than 5 G of Cocaine Base;''.
Section 2D1.1(c)(9) is amended by deleting ``At least 3 G but less
than 4 G of Cocaine Base;''.
Section 2D1.1(c)(10) is amended by deleting ``At least 2 G but less
than 3 G of Cocaine Base;''.
Section 2D1.1(c)(11) is amended by deleting ``At least 1 G but less
than 2 G of Cocaine Base;''.
Section 2D1.1(c)(12) is amended by deleting ``At least 500 MG but
less than 1 G of Cocaine Base;''.
Section 2D1.1(c)(13) is amended by deleting ``At least 250 MG but
less than 500 MG of Cocaine Base;''.
Section 2D1.1(c)(14) is amended by deleting ``Less than 250 MG of
Cocaine Base;''.
Section 2D1.1(c) is amended by deleting:
```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.'',
and inserting in lieu thereof:
```Cocaine,' for the purposes of this guideline, includes cocaine
hydrochloride, cocaine base, and crack cocaine.''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in [[Page 25076]] Note 10 in the subdivision captioned
``Cocaine and Other Schedule I and II Stimulants'' by deleting:
``1 gm of Cocaine Base (`Crack') = 20 kg of marihuana''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 3 by deleting ```firearm' and `dangerous weapon''' and
inserting in lieu thereof ```firearm,' `dangerous weapon,'
`brandished,' and `otherwise used'''; and by inserting the following
additional paragraph at the end:
``A `firearm described in 18 U.S.C. 921(a)(30)' (pertaining to
semiautomatic assault weapons) does not include a weapon exempted under
the provisions of 18 U.S.C. 922(v)(3). A `firearm described in 26
U.S.C. 5845(a)' is discussed in the Commentary to Sec. 2K2.1 (Unlawful
Receipt, Possession, or Transportation of Firearms or Ammunition;
Prohibited Transactions Involving Firearms or Ammunition).''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 13 by deleting ``(b)(2)(B)'' and inserting in lieu
thereof ``(b)(3)(B)''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended by inserting the following additional notes:
``20. Under subsections (b)(1) (A), (B) and (b)(2), the defendant
is accountable for his own conduct and the conduct of others that he
aided, abetted, counseled, commanded, induced, procured, or willfully
caused. If a firearm is discharged by a participant in the same vehicle
as the defendant, or otherwise in close proximity to the defendant,
there shall be a rebuttable presumption that the defendant aided or
abetted, counseled, commanded, or induced the discharge of the firearm.
``21. If the offense resulted in bodily injury to any victim, an
upward departure may be warranted.''.
The Commentary to Sec. 2D1.1 captioned ``Background'' is amended in
the fifth paragraph by deleting ``(b)(2)'' and inserting in lieu
thereof ``(b)(3)''.
Section 2D2.1 is amended in subsection (a)(1) by deleting ``, an
analogue of these, or cocaine base'' and inserting in lieu thereof
``(or an analogue thereof)''.
Section 2D2.1 is amended by deleting subsection (b).
The Commentary to Sec. 2D2.1 captioned ``Background'' is amended by
deleting the second paragraph.
Reason for Amendment: This amendment further implements section
280006 of the Violent Crime Control and Law Enforcement Act of 1994 in
which Congress directed the Commission to study federal sentencing
policy as it relates to possession and distribution of all forms of
cocaine, specifically including the differences in penalty levels that
apply to powder cocaine and crack cocaine. The Commission conducted
public hearings, received written comment, and conducted its own
analyses of the relevant research and of the Commission's extensive
database on cocaine sentences imposed in the federal courts. The
results of this study are contained in the Special Report to Congress:
Cocaine and Federal Sentencing Policy (February 1995).
This amendment specifically responds to the Congressional directive
to make recommendations for retention or modification of current
cocaine penalties. The Commission is recommending separately that
Congress eliminate the differential treatment of crack and powder
cocaine in the mandatory minimum penalties found in current statutes.
With this amendment, the Commission also makes changes in the
sentencing guidelines that it believes will better accomplish the
purposes of sentencing and will do so more fairly than the current
guidelines. This amendment equalizes sentences for offenses involving
similar amounts of crack cocaine and powder cocaine at the level
currently provided for powder cocaine. It also increases punishment for
all drug offenses that involve firearms or other dangerous weapons, and
authorizes an upward departure for bodily injury.
In public comment and testimony received by the Commission, several
problems with the current penalty differential between crack and powder
cocaine were cited. Critics questioned whether lengthier penalties for
crack are justified by differences between the two forms of cocaine.
Also, many commentators and a study issued by the U.S. Department of
Justice, Bureau of Justice Statistics, noted that the discrepancy in
the sentence lengths for crack and powder cocaine has been a major
factor in a growing gap between the average sentence imposed on Whites
and on minorities in the federal courts. (See Sentencing in the Federal
Courts: Does Race Matter?, November 1993.)
To evaluate current cocaine sentencing policy, the Commission
reviewed the legislative history of the relevant penalty provisions and
the goals that Congress has established for cocaine sentencing. On the
question of the impact of current penalties on Blacks, the Commission
concluded that no evidence supports a finding that racial bias or
animus undergirded the current penalty structure. However, the
Commission was deeply concerned that almost ninety percent of offenders
convicted of crack cocaine offenses in the federal courts are Black.
The Commission concluded that it is important that sufficient policy
bases exist to justify a penalty differential that has a severe impact
on a particular minority group.
For reasons discussed below, the Commission concluded that
sufficient policy bases for the current penalty differential do not
exist. Instead of differential treatment of crack and powder cocaine
defendants based solely on the form of the drug involved in the
offense, the Commission concluded that fairer sentencing would result
from guideline enhancements that are targeted to the particular harms
that are associated with some, but not all, crack cocaine offenses.
Harm-specific guideline enhancements will better punish the most
culpable offenders and protect the public from the most dangerous
offenders, while avoiding blanket increases for all offenders involved
with the crack form of cocaine.
As described in the Special Report, the 100-to-1 quantity ratio was
established before the guideline system was in effect and before
Congress could know how many of the harms associated with crack cocaine
offenses would be captured by other guideline sentence enhancements.
For example, the guidelines ensure lengthier imprisonment for leaders
and managers of drug distribution offenses (Sec. 3B1.1), for the sale
of controlled substances to juveniles or pregnant women (Sec. 2D1.2),
for the sale of controlled substances in protected locations
(Sec. 2D1.2), for the use of juveniles in controlled substance offenses
(Sec. 2D1.2), and for repeat offenders (Chapter 4). For offenses
involving death, a cross-reference to the first-degree murder guideline
is provided (Sec. 2D1.1). Consequently, to the extent that these other
guideline provisions take into account the increased harms associated
with some crack offenses, the Commission has concluded that the higher
offense levels based solely on the form of the drug that are found in
the current drug quantity table should be reduced.
The Commission also has determined that, given the increased
dangers posed by the possession and use of firearms or other dangerous
weapons in connection with controlled substance offenses (including
crack cocaine offenses), the enhancements provided by the guidelines
for these factors should be increased. Consequently, the amendment
increases the enhancement for possession of a firearm or other
dangerous weapon from two to three levels, with a minimum offense level
of 18 for possession of a firearm. A new four-level adjustment for
brandishing or otherwise using a dangerous weapon [[Page 25077]] and a
six-level adjustment for discharging a firearm are added. Additionally,
a two-level enhancement for possession of a firearm of the type
described in 26 U.S.C. 5845(a) or 18 U.S.C. 921(a)(30) is added (e.g.,
a machine gun, sawed-off shotgun, or a semi-automatic assault weapon).
A new application note expressly lists bodily injury to any victim as a
grounds for an upward departure.
With guideline enhancements that are targeted to factors associated
with some crack cocaine offenses, the Commission concluded that the
penalty differential based solely on the form of the drug should be
eliminated. Crack and powder cocaine are pharmacologically the same
drug. Both are dangerous and have a serious potential for abuse.
Cocaine is imported and distributed in powder form, meaning that those
persons highest in the distribution chain--whom the Commission
considers the most culpable and the most responsible for the nation's
cocaine problem--deal only in powder. Crack is manufactured from powder
cocaine, generally near the point of retail sale, using a simple
conversion process.
This cocaine distribution pattern, in combination with the current
penalty differential, has resulted in cases in which retail crack
dealers sometimes get longer sentences than the wholesale powder
distributors who supply them. Under this amendment, the drug
trafficking guidelines (Secs. 2D1.1, 2D1.2, 2D1.5) will provide for the
same significant punishment for crack distributors that is currently
provided for distributors of like quantities of powder cocaine. The
amended guideline will base punishment on the amount of cocaine
involved and other associated, systematic harms, not on the form of
cocaine. Hence, large-scale powder or crack cocaine suppliers will get
longer sentences than small-scale street dealers. Conforming changes
are also made in the simple possession guideline (Sec. 2D2.1).
The Commission is aware that an increase in cocaine addiction has
been attributed to crack cocaine. Addiction is more likely when a drug
is administered, as is crack, through smoking rather than through nasal
insufflation (snorting). However, the Commission determined that this
is not a reliable basis for establishing longer penalties for crack
cocaine, because powder cocaine may be injected and injection is even
more likely to lead to addiction than is smoking.
After careful consideration, the Commission concluded that
increased penalties are also not an appropriate response to concerns
about social maladies that have been associated with crack, such as
health problems and parental neglect among user groups. The Commission
was unable to establish that these social problems result from the drug
itself rather than from the disadvantaged social and economic
environment in which the drug often is used. Moreover, these problems
are not unique to crack cocaine but are associated with any serious
drug or alcohol abuse. The Commission believes that increased
punishment for crack cocaine solely because it is more commonly used by
members of disadvantaged groups is not appropriate. Nor does the fact
that crack cocaine is typically sold in smaller amounts, which may make
it more readily available among lower-income groups, justify increased
punishment compared to a form of the drug that is more commonly sold in
amounts available only to more affluent persons.
After consideration of the factors in the Special Report to
Congress and the purposes of sentencing set forth in 18 U.S.C. 3553,
the Commission has concluded that the guideline provisions, as amended,
will better take into account the increased harms associated with some
crack cocaine offenses and, thus, the different offense levels based
solely on the form of cocaine are not required.
6. Amendment: Section 2D1.1(b) is amended by inserting the
following additional subdivision:
``(4) If the object of the offense was the distribution of a
controlled substance in a prison, correctional facility, or detention
facility, increase by 2 levels.''.
Section 2D2.1 is amended by inserting the following new subsection:
``(b) Cross Reference
(1) If the offense involved possession of a controlled substance in
a prison, correctional facility, or detention facility, apply
Sec. 2P1.2 (Providing or Possessing Contraband in Prison).''.
Reason for Amendment: Section 90103 of the Violent Crime Control
and Law Enforcement Act of 1994 directs the Commission to amend the
guidelines to provide an adequate enhancement for an offense under 21
U.S.C. 841 that involves distributing a controlled substance in a
federal prison or detention facility. This amendment addresses this
directive by adding a two-level enhancement to Sec. 2D1.1 (Unlawful
Manufacturing, Importing, Exporting, or Trafficking; Attempt or
Conspiracy) for an offense involving a prison or detention facility,
similar to the two-level increase provided for other protected
locations in Sec. 2D1.2 (Drug Offenses Occurring Near Protected
Locations or Involving Underage or Pregnant Individuals; Attempt or
Conspiracy).
Section 90103 also directs the Commission to amend the guidelines
to provide an appropriate enhancement for an offense of simple
possession of a controlled substance under 21 U.S.C. 844 that occurs in
a federal prison or detention facility. This amendment addresses this
directive by providing a cross reference from Sec. 2D2.1 (Unlawful
Possession; Attempt or Conspiracy) to Sec. 2P1.2 (Providing or
Possessing Contraband in Prison) in such cases.
7. Amendment: Section 2D1.1(b) is amended by inserting the
following additional subdivision:
``(5) If the defendant meets the criteria set forth in subdivisions
(1)-(5) of Sec. 5C1.2 (Limitation on Applicability of Statutory Minimum
Sentences in Certain Cases) and the offense level determined above is
level 26 or greater, decrease by 2 levels.''.
Section 5C1.2 is repromulgated without change.
Reason for Amendment: Section 80001(b) of the Violent Crime Control
and Law Enforcement Act of 1994 (the ``Safety Valve'' provision)
directs 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 (Limitation on Applicability of
Statutory Minimum Sentences in Certain Cases) as an emergency amendment
effective September 23, 1994. 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 Public Law No. 100-182, section 21, set forth as an
editorial note under 28 U.S.C. 994. This amendment repromulgates
Sec. 5C1.2, as set forth in the Guidelines Manual effective November 1,
1994. In addition, this amendment adds a new subsection to Sec. 2D1.1
to implement this provision by providing a two-level decrease in
offense level for cases meeting the criteria set forth in
Sec. 5C1.2(1)-(5).
8. 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,'',
and by inserting ``, regardless of sex,'' immediately following
``plant''. The Commentary to Sec. 2D1.1 captioned ``Background'' is
amended in the fourth [[Page 25078]] 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. 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 by deleting ``, in the case of fewer than fifty
marihuana plants,''.
Reason for Amendment: For offenses involving 50 or more marihuana
plants, the guidelines currently use an equivalency of one plant = one
kilogram of marihuana, reflecting the quantities associated with the
five- and ten-year mandatory minimum penalties in 21 U.S.C. 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. In actuality, a marihuana plant
does not produce a yield of one kilogram of marihuana. The one plant =
100 grams of marihuana equivalency used by the Commission for offenses
involving fewer than 50 marihuana plants was selected as a reasonable
approximation of the actual average yield of marihuana plants taking
into account (1) studies reporting the actual yield of marihuana plants
(37.5 to 412 grams depending on growing conditions); (2) that all
plants regardless of size are counted for guideline purposes while, in
actuality, not all plants will produce useable marihuana (e.g., some
plants may die of disease before maturity, and when plants are grown
outdoors some plants may be consumed 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. To enhance fairness and consistency, this amendment adopts the
equivalency of 100 grams per marihuana plant for all guideline
determinations.
9. 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 or 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 or 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 or 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 or 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 or 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 or 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 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 or 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 or 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 sixth
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 `` Secobarbital and Other''; and by deleting:
[[Page 25079]] ``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 of a Schedule I or II Depressant = 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'',
and inserting in lieu thereof:
``1 unit of a Schedule III Substance = 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 of a Schedule IV Substance = 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 of a Schedule V Substance = 0.00625 gm of marihuana''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 11 in the ``Typical Weight Per Unit Table'' by deleting
the caption ``Depressants''; and by deleting ``Methaqualone* 300 mg''.
Reason for Amendment: This amendment modifies the determination of
the base offense level with respect to Schedule I and II Depressants
and Schedule III, 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. 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 lead to higher
offense levels even though there is little or no relationship between
gross weight and the potency of the pill. Applying the Drug Quantity
Table according to the number of pills will both simplify guideline
application and more fairly assess the scale and seriousness of the
offense.
10. Amendment: Section 2D1.1(c) is amended in the notes following
the Drug Quantity Table by inserting 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 CFR 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
CFR 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.''.
Section 2D1.1(c) is amended by inserting ``Notes to Drug Quantity
Table:'' immediately following the asterisk at the beginning of the
notes to the Drug Quantity Table; and by inserting a letter designation
immediately before each note in alphabetical order beginning with
``(A)''.
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 marihuana having a moisture content
that renders the marihuana unsuitable for consumption without drying
(this might occur, for example, with a bale of rain-soaked marihuana or
freshly harvested marihuana that had not been dried), an approximation
of the weight of the marihuana without such excess moisture content is
to be used.''.
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 marihuana''.
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 marihuana'';
and inserting in lieu thereof:
``1 gm of Khat = .01 gm of marihuana''.
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
defendant establishes that he or she did not intend to provide, or was
not reasonably capable of providing, the agreed-upon quantity of the
controlled substance, the court shall exclude from the offense level
determination the amount of controlled substance that the defendant
establishes that he or she did not intend to provide or was not
reasonably capable of providing.''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended by inserting the following additional note:
``22. For purposes of the guidelines, a `plant' is an organism
having leaves and a readily observable root formation (e.g., a
marihuana cutting having roots, a rootball, or root hairs is a
marihuana plant).''. [[Page 25080]]
Reason for Amendment: This is a six-part amendment. 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. See United States v.
Gravelle, 819 F. Supp. 1076 (S.D. Fla. 1993); United States v. Schultz,
810 F. Supp. 230 (S.D. Ohio 1992).
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 has not had time to dry). In such cases, using the
weight of the wet 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. Pinedo-Montoya, 966 F.2d 591 (10th Cir. 1992); United States
v. Garcia, 925 F.2d 170 (7th Cir. 1991). 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 this application note to ensure correct application of the
guideline.
Third, this amendment addresses the issue 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), appeal after remand
30 F.3d 134 (6th Cir. 1994)). 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, 501 S. Ct. 1258 (1991); United States v. Carlisle, 907 F.2d 94,
96 (9th Cir. 1990)(finding that cuttings were plants where each cutting
had previous degrees of root formation not clearly erroneous); 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), aff'd in part and rev'd in part, 11 F.3d 806 (8th Cir.),
cert. denied, 114 S. Ct. 3747 (1994); United States v. Fitol, 733 F.
Supp. 1312, 1316 (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
marihuana plants, e.g., cuttings with roots, are nonetheless still
marihuana plants), aff'd. 938 F.2d 188 (8th Cir. 1991). Because this
issue arises frequently, this amendment adds an application note 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 the Drug Equivalency Tables in the Commentary to Sec. 2D1.1.
Fifth, this amendment deletes the distinction between d- and l-
methamphetamine in the Drug Equivalency Tables in the Commentary to
Sec. 2D1.1. L-methamphetamine, which is a rather weak form of
methamphetamine, is rarely seen and is not made intentionally, but
rather results from 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). 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
not listed in the Drug Equivalency Table. The listing of l-
methamphetamine as a separate form of methamphetamine has led to
litigation as to how dl-methamphetamine should be treated. 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 both point out the complexity engendered by the
current distinction between d- and l- methamphetamine. Under this
amendment, all forms of methamphetamine are treated alike, thereby
simplifying guideline application.
Sixth, this amendment revises 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 different
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 over the interpretation of
this application note have produced much litigation. See, e.g., United
States v. Tillman, 8 F.3d 17 (11th Cir. 1993); United States v. Smiley,
997 F.2d 475 (8th Cir. 1993); United States v. Barnes, 993 F.2d 680
(9th Cir. 1993), cert. denied, 115 S. Ct. 96 (1994); United States v.
Rodriguez, 975 F.2d 999 (3d Cir. 1992); United States v. Christian, 942
F.2d 363 (6th Cir. 1991), cert. denied, 502 U.S. 1045 (1992); United
States v. Richardson, 939 F.2d 135 (4th Cir.), 502 U.S. 987 (1991);
United States v. Ruiz, 932 F.2d 1174 (7th Cir.), cert. denied, 502 U.S.
849 (1991); United States v. Bradley, 917 F.2d 601 (1st Cir. 1990).
11. 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;'',
``12.6 KG or more of Nitroethane;'',
(2) ``At least 5.3 KG but less than 17.8 KG of Benzaldehyde;'',
``At least 3.8 KG but less than 12.6 KG of Nitroethane;'',
(3) ``At least 1.8 KG but less than 5.3 KG of Benzaldehyde;'',
``At least 1.3 KG but less than 3.8 KG of Nitroethane;'',
(4) ``At least 1.2 KG but less than 1.8 KG of Benzaldehyde;'',
``At least 879 G but less than 1.3 KG of Nitroethane;'',
[[Page 25081]]
(5) ``At least 712 G but less than 1.2 KG of Benzaldehyde;'',
``At least 503 G but less than 879 G of Nitroethane;'',
(6) ``At least 178 G but less than 712 G of Benzaldehyde;'',
``At least 126 G but less than 503 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** = 1.124 gm of Ephedrine'',
``1 gm of Nitroethane** = 1.592 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 method 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.'';
and by deleting the first paragraph of Note D and inserting in lieu
thereof:
``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 by designating the List I Chemical
Equivalency Table (formerly the Precursor Chemical Equivalency Table)
as Note ``(E)''.
Section 2D1.11(d) is amended in the List I Chemical Equivalency
Table (formerly the Precursor Chemical Equivalency Table) by inserting
``**'' immediately after each of the following substances: Ethylamine,
N-Methylephedrine, N-Methylpseudoephedrine, Norpseudoephedrine,
Phenylpropanolamine, Pseudoephedrine, and 3,4-Methylenedioxyphenyl-2-
propanone.
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:
``(A) hydriodic acid and one of the following: ephedrine, N-
methylephedrine, N-methylpseudoephedrine, norpseudoephedrine,
phenylpropanolamine, or pseudoephedrine; or (B) ethylamine and 3,4-
methylenedioxyphenyl-2-propanone; or (C) benzaldehyde and
nitroethane,''.
The Commentary to Sec. 2D1.11 captioned ``Application Notes'' is
amended in Note 3 by deleting ``3, 4 methylenedioxphenyl-2-propanone''
wherever it appears and inserting in lieu thereof in each instance
``methylamine''.
The Commentary to Sec. 2D1.11 captioned ``Application Notes'' is
amended by deleting Note 4 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 purpose
of calculating the base offense level.
Examples:
(a) The defendant was in possession of five kilograms of ephedrine
and three kilograms of hydriodic acid. Ephedrine and hydriodic acid
typically are used together in the same manufacturing process to
manufacture methamphetamine. Therefore, the base offense level for each
listed chemical is calculated separately and the list I chemical with
the higher base offense level is 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 not used
together in the same manufacturing process. Therefore, the quantity of
phenylacetic acid should be converted to an ephedrine equivalency using
the List I Chemical Equivalency Table and then added to the quantity of
ephedrine. In this case, the two kilograms of phenylacetic acid 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; and by renumbering the remaining notes
accordingly.
Reason for Amendment: The Domestic Chemical Diversion Act of 1993,
Public Law 103-200, 107 Stat. 2333, changed the designations of the
listed chemicals from ``listed precursor chemicals'' and ``listed
essential chemicals'' to ``list I chemicals'' and ``list II
chemicals,'' respectively. Section 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
these statutory changes.
The Act also adds pills containing ephedrine as a list I chemical.
Ephedrine itself is a list I chemical under 21 U.S.C. 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 can be used to
make methamphetamine). Unlike ephedrine, which is purchased from a
chemical company and is virtually 100 percent pure, these tablets
contain a substantially lower percentage of ephedrine (about 25
percent). To avoid unwarranted disparity, this amendment adds a note to
Sec. 2D1.11 providing that the amount of actual ephedrine contained in
a pill is to be used in determining the offense level.
In addition, the Act removes three chemicals from, and adds two
others to, the listed chemicals controlled under the Controlled
Substances Act. Two of [[Page 25082]] the chemicals removed from the
list are not currently listed in Sec. 2D1.11 because the Commission was
aware that 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. This amendment conforms Sec. 2D1.11 by
deleting 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. The base offense levels for
listed chemicals in Sec. 2D1.11 are determined by reference to the most
common controlled substance the chemical is used to manufacture;
consequently, this amendment adds these chemicals to the Chemical
Quantity Table based on information provided by the Drug Enforcement
Administration regarding their use in the production of
methamphetamine.
A number of the chemicals in the Chemical Quantity Table are used
in the same process to make a controlled substance. Currently, a note
at the end of the Precursor Chemical Equivalency Table addresses this
situation for hydriodic acid and ephedrine. This amendment expands this
note to cover other chemicals that similarly are used together.
Finally, the amendment corrects the Commentary to Sec. 2D1.11 with
respect to an example of a listed chemical that is used with P2P to
manufacture methamphetamine.
12. Amendment: Section 2D1.12(a) is amended by inserting ``(Apply
the greater)'' 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.''.
Reason for Amendment: The Domestic Chemical Diversion Act of 1993,
Public Law 103-200, 107 Stat. 2333, broadens the prohibition in 21
U.S.C. 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. Section 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 provides an alternative base offense level in Sec. 2D1.12 to
address the case 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.
13. Amendment: The Introductory Commentary to Chapter Two, Part H,
Subpart I, and Secs. 2H1.1, 2H1.3, 2H1.4, and 2H1.5 are deleted 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) 12, if the offense involved two or more participants;
(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 6 levels.
Commentary
Statutory Provisions: 18 U.S.C. 241, 242, 245(b), 246, 247, 248,
1091; 42 U.S.C. 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), (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.
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)(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).''.
Section 3A1.1 is deleted 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.
(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.
(c) Special Instruction
(1) Subsection (a) shall not apply if an adjustment from
Sec. 2H1.1(b)(1) applies.
Commentary
Application Notes
1. Subsection (a) applies to offenses that are hate crimes. Note
that special evidentiary requirements govern the application of this
subsection.
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.
2. Subsection (b) applies to offenses involving an unusually
vulnerable victim in which the defendant knows or should have known of
the victim's unusual vulnerability. The adjustment would apply, for
example, in a fraud [[Page 25083]] 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.
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.
3. The adjustments from subsections (a) and (b) are to be applied
cumulatively. Do not, however, apply subsection (b) in a case in which
subsection (a) applies unless a victim of the offense was unusually
vulnerable for reasons unrelated to race, color, religion, national
origin, ethnicity, gender, disability, or sexual orientation.
4. If an enhancement from subsection (b) applies and the
defendant's criminal history includes a prior sentence for an offense
that involved the selection of a vulnerable victim, an upward departure
may be warranted.
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 Commentary to Sec. 1B1.5 captioned ``Application Notes'' is
amended in Note 1 by deleting ``2H1.1(a)(2)'' and inserting in lieu
thereof ``2H1.1(a)(1)''.
The Commentary to Sec. 2H4.1 captioned ``Application Note'' is
amended in Note 1 by deleting ``2 plus the offense'' and inserting in
lieu thereof ``Offense''.
Section 3D1.2(d) is amended in the third paragraph by deleting
``2H1.2, 2H1.3, 2H1.4,''.
Reason for Amendment: This is a five-part amendment. First, the
amendment adds an additional subsection to Sec. 3A1.1 (Vulnerable
Victim) to implement the directive contained in Section 280003 of the
Violent Crime Control and Law Enforcement Act of 1994 by providing a
three-level increase in the offense level for offenses that are ``hate
crimes.'' 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, reflect the additional enhancement now
contained in Sec. 3A1.1, and better reflect the seriousness of the
underlying conduct. Third, the amendment references violations of 18
U.S.C. 248 (the Freedom of Access to Clinic Entrances Act of 1994,
Public Law 103-259, 108 Stat. 694) to the consolidated Sec. 2H1.1.
Fourth, the amendment clarifies the operation of Sec. 3A1.1 with
respect to a vulnerable victim. Fifth, the amendment addresses the
directive to the Commission in section 240002 of the Violent Crime
Control and Law Enforcement Act of 1994 (pertaining to elderly victims
of crimes of violence).
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
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. This 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, this amendment will avoid
unwarranted sentencing disparity based on the mode of conviction. The
Commission's general guideline promulgation authority, see 28 U.S.C.
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 and adjusts these guidelines to take into
account the new enhancement under Sec. 3A1.1(a).
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. This Act criminalizes a broad array
of conduct, from non-violent obstruction of the entrance to a clinic to
murder. The amendment treats these violations in the same way as other
offenses involving individual rights.
Section 240002 of the Violent Crime Control and Law Enforcement Act
of 1994 directs the Commission to ensure that the guidelines provide
sufficiently stringent penalties for crimes of violence against elderly
victims. Upon review of the guidelines, the Commission determined that
the penalties currently provided generally appear appropriate; however,
this amendment strengthens the Commentary to Sec. 3A1.1 in one area by
expressly providing a basis for an upward departure if both the current
offense and a prior offense involved a vulnerable victim (including an
elderly victim), regardless of the type of offense.
Finally, Section 250003 of the Violent Control and Law Enforcement
Act of 1994 directs the Commission to review, and if necessary, amend
the sentencing guidelines to ensure that victim-related adjustments for
fraud offenses against older victims are adequate. Section 250003 also
directs the Commission to study and report to the Congress on this
issue. See Report to Congress: Adequacy of Penalties for Fraud Offenses
Involving Elderly Victims (March 13, 1995). Although the Commission
found that the current guidelines generally provided adequate penalties
in these cases, it noted some inconsistency in the application of
Sec. 3A1.1 regarding whether this adjustment required proof that the
defendant had ``targeted the victim on account of the victim's
vulnerability.'' This amendment revises the Commentary of Sec. 3A1.1 to
clarify application with respect to this issue.
14. Amendment: Section 2K2.1(a)(1) is amended by deleting:
``defendant had at least two prior felony convictions of either a crime
of violence or a controlled substance offense, and the instant offense
involved a firearm listed in 26 U.S.C. 5845(a)'',
and inserting in lieu thereof:
``offense involved a firearm described in 26 U.S.C 5845(a) or 18
U.S.C. 921(a)(30), and the defendant had at least two prior felony
convictions of either a crime of violence or a controlled substance
offense''. [[Page 25084]]
Section 2K2.1(a)(3) is amended by deleting:
``defendant had one prior felony conviction of either a crime of
violence or a controlled substance offense, and the instant offense
involved a firearm listed in 26 U.S.C. 5845(a)'',
and inserting in lieu thereof:
``offense involved a firearm described in 26 U.S.C 5845(a) or 18
U.S.C. 921(a)(30), and the defendant had one prior conviction of either
a crime of violence or controlled substance offense''.
Section 2K2.1(a)(4)(B) is amended by deleting ``listed in 26 U.S.C.
5845(a)'' and inserting in lieu thereof ``described in 26 U.S.C 5845(a)
or 18 U.S.C. 921(a)(30)''.
Section 2K2.1(a)(5) is amended by deleting ``listed in 26 U.S.C.
5845(a)'' and inserting in lieu thereof ``described in 26 U.S.C 5845(a)
or 18 U.S.C. 921(a)(30)''.
Section 2K2.1(a)(8) is amended by deleting ``or (m)'' and by
inserting in lieu thereof ``(m),(s),(t), or (x)(1)''.
The Commentary to Sec. 2K2.1 captioned ``Statutory Provisions'' is
amended by inserting ``-(w), (x)(1)'' immediately following ``(r)'',
and by inserting ``, (h), (j)-(n)'' immediately following ``(g)''.
The Commentary to Sec. 2K2.1 captioned ``Application Notes'' is
amended by deleting Note 3 and inserting in lieu thereof:
``3. A `firearm described in 26 U.S.C. 5845(a)' includes: (i) A
shotgun having a barrel or barrels of less than 18 inches in length; a
weapon made from a shotgun if such weapon as modified has an overall
length of less than 26 inches or a barrel or barrels of less than 18
inches in length; a rifle having a barrel or barrels of less than 16
inches in length; or a weapon made from a rifle if such weapon as
modified has an overall length of less than 26 inches or a barrel or
barrels of less than 16 inches in length; (ii) a machinegun; (iii) a
silencer; (iv) a destructive device; and (v) certain unusual weapons
defined in 26 U.S.C. 5845(e) (that are not conventional, unaltered
handguns, rifles, or shotguns). For a more detailed definition, refer
to 26 U.S.C. 5845.
A `firearm described in 18 U.S.C. 921(a)(30)' (pertaining to
semiautomatic assault weapons) does not include a weapon exempted under
the provisions of 18 U.S.C. 922(v)(3).''.
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 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 as
defined in 18 U.S.C. 922(d)(8)'' immediately following ``States''.
The Commentary to Sec. 2K2.1 captioned ``Application Notes'' is
amended by deleting Note 12 and inserting in lieu thereof:
``12. If the only offense to which Sec. 2K2.1 applies is 18 U.S.C.
922 (i), (j), or (u), 18 U.S.C. 924 (j) or (k), or 26 U.S.C. 5861 (g)
or (h) (offenses involving a stolen firearm or ammunition) and the base
offense level is determined under subsection (a)(7), do not apply the
adjustment in subsection (b)(4) unless the offense involved a firearm
with an altered or obliterated serial number. This is because the base
offense level takes into account that the firearm or ammunition was
stolen.
Similarly, if the only offense to which Sec. 2K2.1 applies is 18
U.S.C. 922(k) (offenses involving an altered or obliterated serial
number) and the base offense level is determined under subsection
(a)(7), do not apply the adjustment in subsection (b)(4) unless the
offense involved a stolen firearm or ammunition. This is because the
base offense level takes into account that the firearm had an altered
or obliterated serial number.''.
Reason for Amendment: This is a five-part amendment. First, the
amendment revises Sec. 2K2.1 (Unlawful Receipt, Possession, or
Transportation of Firearms or Ammunition; Prohibited Transactions
Involving Firearms or Ammunition) to provide increased offense levels
for possession of a semiautomatic assault weapon that correspond to
those currently provided for possession of machineguns and other
firearms described in 26 U.S.C. 5845(a). Second, the amendment
addresses section 110201 of the Violent Crime Control Law Enforcement
Act of 1994 by providing an offense level of six for the misdemeanor
portion of 18 U.S.C. 922(x)(1) (involving sale or transfer of a handgun
or ammunition to a juvenile). For an offense under the felony portion
of 18 U.S.C. 922(x)(1) (involving the sale or transfer of a handgun or
handgun ammunition to a juvenile knowing or having reasonable cause to
believe that the handgun or ammunition was intended to be used in a
crime), the enhancement in subsection (b)(5) will provide a minimum
offense level of 18. Third, the amendment addresses section 110401 of
the Violent Crime Control and Law Enforcement Act of 1994 by adding to
the definition of a ``prohibited person'' in Sec. 2K2.1 a person under
the court order described in that crime bill section. Fourth, the
amendment provides an offense level of six for the misdemeanors set
forth in 18 U.S.C. 922 (s) and (t) (involving violations of the Brady
Act). Fifth, the amendment clarifies that Application Note 6 in
Sec. 2K2.1 applies only to cases in which the base offense level is
determined under Sec. 2K2.1(a)(7).
15. 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 may be warranted'',
and inserting in lieu thereof:
``an upward departure may be warranted. See Sec. 4A1.3 (Adequacy of
Criminal History Category)''.
Reason for Amendment: This amendment revises Sec. 2L1.2 (Unlawfully
Entering or Remaining in the United States) to authorize the court to
consider an upward departure in the case of a defendant with repeated
prior instances of deportation not resulting in a criminal conviction.
16. Amendment: Section 2L2.1(b)(2) is amended by deleting ``sets
of'', and by deleting ``Sets of''.
Section 2L2.1(b) is amended by inserting the following additional
subdivision:
``(3) If the defendant knew, believed, or had reason to believe
that a passport or visa was to be used to facilitate the commission of
a felony offense, other than an offense involving violation of the
immigration laws, increase by 4 levels.''.
The Commentary to Sec. 2L2.1 captioned ``Application Notes'' is
amended in Note 2 by inserting ``of documents'' immediately before
``intended''; and by deleting ``documents as one set'' and inserting in
lieu thereof ``set as one document''.
The Commentary to Sec. 2L2.1 captioned ``Application Notes'' is
amended by inserting the following additional note:
``3. Subsection (b)(3) provides an enhancement if the defendant
knew, believed, or had reason to believe that a passport or visa was to
be used to facilitate the commission of a felony offense, other than an
offense involving violation of the immigration laws. If the defendant
knew, believed, or had reason to believe that the felony offense to be
committed was of an especially serious type, an upward departure may be
warranted.''.
Section 2L2.2 is amended by inserting the following additional
subsection:
``(c) Cross Reference
(1) If the defendant used a passport or visa in the commission or
attempted [[Page 25085]] commission of a felony offense, other than an
offense involving violation of the immigration laws, apply--
(A) Sec. 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to
that felony offense, if the resulting offense level is greater than
that determined above; or
(B) if death resulted, the most analogous offense guideline from
Chapter Two, Part A, Subpart 1 (Homicide), if the resulting offense
level is greater than that determined above.''.
Reason for Amendment: This is a three-part amendment. First, this
amendment provides an enhancement in Sec. 2L2.1 (Trafficking in a
Document Relating to Naturalization, Citizenship, or Legal Resident
Status, or a United States Passport; False Statement in Respect to the
Citizenship or Immigration Status of Another; Fraudulent Marriage to
Assist Alien to Evade Immigration Law) if the defendant trafficked in a
passport or visa knowing, believing, or having reason to believe that
the passport or visa was to be used to facilitate the commission of a
felony offense, other than an offense involving violation of the
immigration laws. Second, this amendment corrects a technical error in
Sec. 2L2.1(b)(2). Third, this amendment adds a cross reference to
Sec. 2L2.2 (Fraudulently Acquiring Documents Relating to
Naturalization, Citizenship, or Legal Resident Status for Own Use;
False Personation or Fraudulent Marriage by Alien to Evade Immigration
Law; Fraudulently Acquiring or Improperly Using a United States
Passport) that addresses the case of a defendant who uses a passport or
visa in the commission or attempted commission of a felony offense,
other than an offense involving violation of the immigration laws.
17. Amendment: Section 2P1.2(a)(2) is amended by inserting
``methamphetamine,'' immediately following ``PCP,''.
Section 2P1.2(a)(3) is amended by inserting ``methamphetamine,''
immediately following ``PCP,''.
Section 2P1.2 is amended by deleting subsection (c)(1) and
inserting in lieu thereof:
``(1) If the object of the offense was the distribution of a
controlled substance, apply the offense level from Sec. 2D1.1 (Unlawful
Manufacturing, Importing, Exporting, or Trafficking; Attempt or
Conspiracy). Provided, that if the defendant is convicted under 18
U.S.C. 1791(a)(1) and is punishable under 18 U.S.C. 1791(b)(1), and the
resulting offense level is less than level 26, increase to level 26.''.
Reason for Amendment: This amendment conforms the offense level for
methamphetamine offenses in a correctional or detention facility to
that of other controlled substance offenses committed in a correctional
or detention facility that have the same statutory maximum penalty.
This change reflects the increase in the maximum penalty for
methamphetamine offenses in section 90101 of the Violent Crime Control
and Law Enforcement Act of 1994. In addition, the amendment expands the
cross reference in subsection (c)(1) to cover distribution of all
controlled substances in a correctional or detention facility.
18. Amendment: Sections 2S1.1 and 2S1.2 are deleted and the
following 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,
or were to be used to promote, 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. 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) provides an increase for those cases that
involve 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. [[Page 25086]]
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 criminal
conduct from which the funds were derived.
5. Subsection (b)(2) provides 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 transactions 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. 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. 2S1.1 (Laundering of Monetary
Instruments); Sec. 2S1.2 (Engaging in Monetary Transactions in Property
Derived from Specified Unlawful Activity); and Sec. 2S1.3 (Structuring
Transactions to Evade Reporting Requirements; Failure to Report Cash or
Monetary Transactions; Failure to File Currency and Monetary Instrument
Report; Knowingly Filing False Reports)''; and by inserting ``or''
immediately before ``Sec. 2R1.1''.
Appendix A (Statutory Index) is amended in the line reference to 18
U.S.C. 1957 by deleting ``2S1.2'' and inserting in lieu thereof
``2S1.1''.
Reason for Amendment: This revises and consolidates Secs. 21/1 and
2S1.2 to simplify application and better assure that the offense levels
comport with the relative seriousness of the offense conduct. When the
Commission originally promulgated Secs. 2S1.1 and 2S1.2 to govern
sentencing for the money laundering and monetary transaction offenses
found at 18 U.S.C. 1956 and 1957, these statutes were relatively new
and, therefore, the Commission had little case experience upon which to
base the guidelines. Since then, courts have construed the elements of
these offenses broadly. As a result, the Commission has found that
Secs. 2S1.1 and 2S1.2 do not adequately distinguish the varying degrees
of offense conduct that are sentenced under these guidelines.
This amendment responds to concerns about the operation of these
guidelines by tying the base offense levels of the revised guideline
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) provides a 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 funds were to be used to promote further criminal
activity. An additional 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) provides an
offense level of eight plus the offense level from the table in
Sec. 2F1.1 (Fraud and Deceit). This offense level generally corresponds
to the offense level for fraud and theft offenses with more than
minimal planning. Subsection (a)(2) provides an offense level of 12
plus the offense level from the table in Sec. 2F1.1 for cases in which
the defendant knew or believed the funds were derived from, or were to
be used to further, certain serious offenses (e.g., drug trafficking
offenses). This approach is consistent with the current guideline
structure, which generally treats such offenses as at least four levels
more serious than typical economic offenses (e.g., fraud).
19. Amendment: Chapter Three, Part A, is amended by inserting the
following additional section:
``Sec. 3A1.4. International Terrorism
(a) If the offense is a felony that involved, or was intended to
promote, international terrorism, increase by 12 levels; but if the
resulting offense level is less than level 32, increase to level 32.
(b) In each such case, the defendant's criminal history category
from Chapter Four (Criminal History and Criminal Livelihood) shall be
Category VI.
Commentary
Application Notes
1. Subsection (a) increases the offense level if the offense
involved, or was intended to promote, international terrorism.
`International terrorism' is defined at 18 U.S.C. 2331.
2. Under subsection (b), if the defendant's criminal history
category as determined under Chapter Four (Criminal History and
Criminal Livelihood) is less than Category VI, it shall be increased to
Category VI.''.
Section 5K2.15 is deleted.
Reason for Amendment: 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. The amendment addresses this directive
by adding a Chapter Three enhancement at Sec. 3A1.4 (Terrorism) in
place of the current upward departure provision at Sec. 5K2.15
(Terrorism).
20. Amendment: Section 3B1.4 is deleted and the following inserted
in lieu thereof:
``Sec. 3B1.4. Using a Minor To Commit a Crime
If the defendant used or attempted to use a person less than
eighteen years of age to commit the offense or assist in avoiding
detection of, or apprehension for, the offense, increase by 2 levels.
Commentary
Application Note
1. `Used or attempted to use' includes directing, commanding,
encouraging, intimidating, counseling, training, processing,
recruiting, or soliciting.
2. Do not apply this adjustment if the Chapter Two offense
guideline incorporates this factor.
3. If the defendant used or attempted to use more than one person
less than eighteen years of age, an upward departure may be
warranted.''.
Reason for Amendment: This amendment implements the directive in
Section 140008 of the Violent Crime Control and Law Enforcement Act of
1994 (pertaining to the use of a minor in the commission of an offense)
in a slightly broader form.
21. Amendment: The Commentary to Sec. 4B1.1 captioned
``Background'' is amended by deleting the text and inserting in lieu
thereof:
``Section 994(h) of title 28, United States Code, mandates that the
[[Page 25087]] Commission assure that certain `career' offenders
receive a sentence of imprisonment `at or near the maximum term
authorized.' Section 4B1.1 implements this directive, with the
definition of a career offender tracking in large part the criteria set
forth in 28 U.S.C. 994(h). However, in accord with its general
guideline promulgation authority under 28 U.S.C. 994(a)-(f), and its
amendment authority under 28 U.S.C. 994 (o) and (p), the Commission has
modified this definition in several respects to focus more precisely on
the class of recidivist offenders for whom a lengthy term of
imprisonment is appropriate and avoid `unwarranted sentencing
disparities among defendants with similar records who have been found
guilty of similar criminal conduct * * * ' 28 U.S.C. 991(b)(1)(B). The
Commission's refinement of this definition over time is consistent with
Congress' choice of a directive to the Commission rather than a
mandatory minimum sentencing statute (`The [Senate Judiciary] Committee
believes that such a directive to the Commission will be more
effective; the guidelines development process can assure consistent and
rational implementation for the Committee's view that substantial
prison terms should be imposed on repeat violent offenders and repeat
drug traffickers.' S. Rep. No. 225, 98th Cong., 1st Sess. 175 (1983)).
The legislative history of this provision suggests that the phrase
`maximum term authorized' should be construed as the maximum term
authorized by statute. See S. Rep. No. 225, 98th Cong., 1st Sess. 175
(1983), 128 Cong. Rec. 26, 511-12 (1982) (text of `Career Criminals'
amendment by Senator Kennedy) id. at 26, 515 (brief summary of
amendment) id. at 26, 517-18 (statement of Senator Kennedy).''.
Application Note 1 of the Commentary to Sec. 4B1.2 is repromulgated
without change.
Reason for Amendment: This amendment inserts additional background
commentary explaining the Commission's rationale and authority for
Sec. 4B1.1 (Career Offender). The amendment responds to a decision by
the United States Court of Appeals for the District of Columbia Circuit
in United States v. Price, 990 F.2d 1367 (D.C. Cir. 1993). In Price,
the court invalidated application of the career offender guideline to a
defendant convicted of a drug conspiracy because 28 U.S.C. 994(h),
which the Commission cites as the mandating authority for the career
offender guideline, does not expressly refer to inchoate offenses. The
court indicated that it did not foreclose Commission authority to
include conspiracy offenses under the career offender guideline by
drawing upon its broader guideline promulgation authority in 28 U.S.C.
994(a). See also United States v. Mendoza-Figueroa, 28 F.3d 766 (8th
Cir. 1994), vacated (Sept. 2, 1994); United States v. Bellazerius, 24
F.3d 698 (5th Cir.), cert. denied, 115 S. Ct. 375 (1994). Other
circuits have rejected the Price analysis and upheld the Commission's
definition of ``controlled substance offense.'' For example, the Ninth
Circuit considered the legislative history to 994(h) and determined
that the Senate Report clearly indicated that 994(h) was not the sole
enabling statute for the career offender guidelines. United States v.
Heim, 15 F.3d 830 (9th Cir.), cert. denied, 115 S. Ct. 55 (1994). See
also United States v. Hightower, 25 F.3d 182 (3d Cir.), cert. denied,
115 S. Ct. 370 (1994); United States v. Damerville, 27 F.3d 254 (7th
Cir.), cert. denied, 115 S. Ct. 445 (1994); United States v. Allen, 24
F.3d 1180 (10th Cir.), cert. denied, 115 S. Ct. 493 (1994); United
States v. Baker, 16 F.3d 854 (8th Cir. 1994); United States v. Linnear,
40 F.3d 215 (7th Cir. 1994); United States v. Kennedy, 32 F.3d 876 (4th
Cir. 1994), cert. denied, 115 S. Ct. 939 (1995); United States v.
Piper, 35 F.3d 611 (1st Cir. 1994), cert. denied, 115 S. Ct. 1118
(1995).
22. Amendment: The Commentary to Sec. 5D1.1 captioned ``Application
Notes'' is amended in Note 1 by deleting:
``While there may be cases within this category that do not require
post release supervision, these cases are the exception and may be
handled by a departure from this guideline.'',
and inserting in lieu thereof:
``The court may depart from this guideline and not impose a term of
supervised release if it determines that supervised release is neither
required by statute nor required for any of the following reasons: (1)
To protect the public welfare; (2) to enforce a financial condition;
(3) to provide drug or alcohol treatment or testing; (4) to assist the
reintegration of the defendant into the community; or (5) to accomplish
any other sentencing purpose.''.
Section 5D1.2 is amended by deleting subsection (a); and by
redesignating subsection (b) as subsection (a).
Section 5D1.2(a) (formerly Sec. 5D1.2(b)) is amended by deleting
``Otherwise, when'' and inserting in lieu thereof ``If''.
Section 5D1.2 is amended by inserting the following additional
subsection:
``(b) Provided, that the term of supervised release imposed shall
in no event be less than any statutorily required term of supervised
release.''.
Reason for Amendment: This amendment sets forth with greater
specificity the circumstances under which the court may depart from the
requirements of Sec. 5D1.1 (Imposition of a Term of Supervised Release)
and impose no term of supervised release. In addition, the amendment
deletes, as unnecessary, the requirement in Sec. 5D1.2 (Term of
Supervised Release) of a term of supervised release of three to five
years whenever a statute requires any term of supervised release.
Instead, the amendment provides that, in the case of a statute
requiring a term of supervised release, the length of the term of
supervised release shall be determined by the class of felony of which
the defendant was convicted, but shall not be less than any term
required by statute.
23. Amendment: Section 5E1.1(a)(2) is amended by deleting
``Sec. 1472 (h), (i), (j), or (n)'' and inserting in lieu thereof
``Sec. 46312, Sec. 46502, or Sec. 46504''.
The Commentary to Sec. 5E1.1 captioned ``Background'' is amended in
the first paragraph by deleting ``and of designated subdivisions of 49
U.S.C. 1472'' and inserting in lieu thereof ``or 49 U.S.C. 46312,
46502, or 46504''.
The Commentary to Sec. 5E1.1 captioned ``Background'' is amended in
the second paragraph by deleting ``Sec. 1472 (h), (i), (j), or (n)''
wherever it appears and inserting in lieu thereof in each instance
``Sec. 46312, Sec. 46502, or Sec. 46504''.
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. 2248 and 2259
(applying to convictions under 18 U.S.C. 2241-2258 for sexual-abuse
offenses and sexual exploitation of minors); 18 U.S.C. 2327 (applying
to convictions under 18 U.S.C. 1028-1029, 1341-1344 for telemarketing-
fraud offenses); 18 U.S.C. 2264 (applying to convictions under 18
U.S.C. 2261-2262 for domestic-violence offenses). To the extent that
any of the above-noted statutory provisions conflicts with the
provisions of this guideline, the applicable statutory provision shall
control.''.
Reason for Amendment: Section 40113 of the Violent Crime Control
and Law Enforcement Act of 1994 requires ``mandatory'' restitution for
offenses involving sexual abuse and sexual exploitation of children
under 18 U.S.C. 2241-2258. Sections 250002 and 40221 add similar
``mandatory'' restitution provisions for offenses involving
telemarketing fraud (18 U.S.C. 2327) [[Page 25088]] and domestic
violence (18 U.S.C. 2264). These provisions also require that
compliance with a restitution order be a condition of probation or
supervised release, have broader definitions of loss than 18 U.S.C.
3663, and apply ``notwithstanding section 3663, and in addition to any
civil or criminal penalty authorized by law.'' This amendment adds
commentary to Sec. 5E1.1 (Restitution) to alert the courts to the new
statutory provisions.
In addition, this amendment conforms Sec. 5E1.1 to the
redesignation of 49 U.S.C. 1472 (h), (i), (j), and (n) as 49 U.S.C.
46312, 46502 (a), (b), and 46504.
24. Amendment: Chapter Five, Part K, Subpart Two is amended by
inserting the following additional section:
``Sec. 5K2.17. High-Capacity, Semiautomatic Firearms (Policy
Statement)
If the defendant possessed a high-capacity, semiautomatic firearm
in connection with a crime of violence or controlled substance offense,
an upward departure may be warranted. A `high-capacity, semiautomatic
firearm' means a semiautomatic firearm that has a magazine capacity of
more than ten cartridges. The extent of any increase should depend upon
the degree to which the nature of the weapon increased the likelihood
of death or injury in the circumstances of the particular case.
Commentary
Application Note
1. `Crime of violence' and `controlled substance offense' are
defined in Sec. 4B1.2 (Definitions of Terms Used in Section 4B1.1).''.
Reason for Amendment: This amendment addresses the directive in
section 110501 of the Violent Crime Control and Law Enforcement Act of
1994 to provide an ``appropriate'' enhancement for a crime of violence
or drug trafficking crime if a semiautomatic firearm is involved.
According to data reviewed by the Commission, semiautomatic
firearms are used in 50-70 percent of offenses involving a firearm.
Thus, offenses involving a semiautomatic firearm represent the typical
or ``heartland'' case under the guidelines. Consequently, the firearms
enhancements in the guidelines for crimes of violence and drug
trafficking can be considered to take into account the fact that
firearms involved in these offenses typically are semiautomatic.
Moreover, the ``firepower'' or ``dangerousness'' of semiautomatic
firearms, compared to other types of firearms, varies substantially
with caliber and magazine capacity. For example, a .25 caliber, six-
shot semiautomatic pistol is not considered as having as much firepower
as a .38 caliber, six-shot revolver or a .357 magnum, six-shot
revolver. A nine-millimeter semiautomatic pistol fires a somewhat more
powerful cartridge than a .38 caliber revolver and a somewhat less
powerful cartridge than a .357 magnum revolver. But some nine-
millimeter semiautomatic pistols hold from 14-18 cartridges, compared
to six cartridges for a revolver. A high magazine capacity, nine-
millimeter semiautomatic pistol can be said to have significantly more
firepower than a revolver because it can fire a significantly larger
number of shots without reloading.
If harm actually results (e.g., death or bodily injury), the
guidelines generally take that harm into account directly.
Consequently, in considering any distinction between semiautomatic
firearms and other firearms, the issue is whether there is any
significant difference in the risk of harm. The difference in the risk
of harm also varies widely with the circumstances of the offense. For
example, in a robbery at very close range, the difference in the
likelihood of death or bodily injury between a revolver and
semiautomatic pistol would seem to be small. In contrast, in a drive-by
shooting the greater firepower of a semiautomatic weapon likely would
have a more significant effect on the likelihood of death or injury.
After considering the above factors, the Commission determined that
the most appropriate approach at this time was to provide a specific
basis for an upward departure when a high-capacity semiautomatic
firearm is possessed in connection with a crime of violence or drug
trafficking offense, thereby allowing the courts the flexibility to
take this factor into account as appropriate in the circumstances of
the particular case. Additionally, the Commission amended Sec. 2D1.1
(Unlawful Manufacturing, Importing, Exporting, or Trafficking; Attempt
or Conspiracy) to provide greater enhancement when a firearm (including
a semiautomatic firearm) is involved.
25. Amendment: Chapter Five, Part K, Subpart Two is amended by
inserting the following additional section:
``Sec. 5K2.18. Violent Street Gangs (Policy Statement)
If the defendant is subject to an enhanced sentence under 18 U.S.C.
521 (pertaining to criminal street gangs), an upward departure may be
warranted. The purpose of this departure provision is to enhance the
sentences of defendants who participate in groups, clubs,
organizations, or associations that use violence to further their ends.
It is to be noted that there may be cases in which 18 U.S.C. 521
applies, but no violence is established. In such cases, it is expected
that the guidelines will account adequately for the conduct and,
consequently, this departure provision would not apply.''.
Reason for Amendment: This amendment expressly provides a basis for
an upward departure in the case of a defendant subject to a statutorily
enhanced maximum penalty under 18 U.S.C. 521 (pertaining to criminal
street gangs), as enacted by section 150000 of the Violent Crime and
Law Enforcement Act of 1994.
26. Amendment: Section 7B1.3(g)(2) is amended by deleting ``the
defendant may, to the extent permitted by law, be ordered to recommence
supervised release upon release from imprisonment'', and inserting in
lieu thereof:
``the court may include a requirement that the defendant be placed
on a term of supervised release upon release from imprisonment. The
length of such a term of supervised release shall not exceed the term
of supervised release authorized by statute for the offense that
resulted in the original term of supervised release, less any term of
imprisonment that was imposed upon revocation of supervised release. 18
U.S.C. 3583(h)''.
The Commentary to Sec. 7B1.3 captioned ``Application Notes'' is
amended in Note 2 by deleting:
``. This statute, however, neither expressly authorizes nor
precludes a court from ordering that a term of supervised release
recommence after revocation. Under Sec. 7B1.3(g)(2), the court may
order, to the extent permitted by law, the recommencement of a
supervised release term following revocation'',
and inserting in lieu thereof:
``, (g)-(i). Under 18 U.S.C. 3583(h) (effective September 13,
1994), the court, in the case of revocation of supervised release and
imposition of less than the maximum imposable term of imprisonment, may
order an additional period of supervised release to follow
imprisonment''.
The Commentary to Sec. 7B1.3 captioned ``Application Notes is
amended by deleting Note 3, and by renumbering the remaining notes
accordingly.
The Commentary to Sec. 7B1.4 captioned ``Application Notes'' is
amended by deleting Notes 5 and 6 and inserting in lieu thereof:
``5. Upon a finding that a defendant violated a condition of
probation or [[Page 25089]] supervised release by being in possession
of a controlled substance or firearm or by refusing to comply with a
condition requiring drug testing, the court is required to revoke
probation or supervised release and impose a sentence that includes a
term of imprisonment. 18 U.S.C. 3565(b), 3583(g).
6. In the case of a defendant who fails a drug test, the court
shall consider whether the availability of appropriate substance abuse
programs, or a defendant's current or past participation in such
programs, warrants an exception from the requirement of mandatory
revocation and imprisonment under 18 U.S.C. 3565(b) and 3583(g). 18
U.S.C. 3563(a), 3583(d).''.
Reason for Amendment: Section 110505 of the Violent Crime Control
and Law Enforcement Act of 1994 amends 18 U.S.C. 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.
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. 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.
3563(a)(3). Similar requirements are made with respect to conditions of
supervised release. 18 U.S.C. 3583(d).
Section 110506 of the Violent Crime Control and Law Enforcement Act
of 1994 mandates revocation of probation and imposition of a term of
imprisonment if the defendant violates probation by possessing a
controlled substance or a firearm, or by refusing to comply with drug
testing. 18 U.S.C. 3565(b). 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 set forth in 18 U.S.C. 3583(g)
with respect to conditions of supervised release.
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 does
not appear to apply to a defendant who refuses to take the test.
This amendment conforms Secs. 7B1.3 (Revocation of Probation or
Supervised Release) and 7B1.4 (Term of Imprisonment) to these revised
statutory provisions.
27. Amendment: Appendix A is amended by inserting the following at
the appropriate place by title and section:
------------------------------------------------------------------------
Title Section
------------------------------------------------------------------------
``7 U.S.C. 2018(c).......................... 2N2.1''
``7 U.S.C. 6810............................. 2N2.1''
``18 U.S.C. 36.............................. 2D1.1.''
``18 U.S.C. 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. 113(a)(1)....................... 2A2.1''
``18 U.S.C. 113(a)(2)....................... 2A2.2''
``18 U.S.C. 113(a)(3)....................... 2A2.2''
``18 U.S.C. 113(a)(5) (Class A misdemeanor 2A2.3''
provisions only).
``18 U.S.C. 113(a)(6)....................... 2A2.2''
``18 U.S.C. 113(a)(7)....................... 2A2.3''
``18 U.S.C. 470............................. 2B5.1, 2F1.1''
``18 U.S.C. 668............................. 2B1.1''
``18 U.S.C. 844(m).......................... 2K1.3''
``18 U.S.C. 880............................. 2B1.1''
``18 U.S.C. 922(s)-(w)...................... 2K2.1''
``18 U.S.C. 922(x)(1)....................... 2K2.1''
``18 U.S.C. 924(i).......................... 2A1.1, 2A1.2''
``18 U.S.C. 924(j)-(n)...................... 2K2.1''
``18 U.S.C. 1033............................ 2B1.1, 2F1.1, 2J1.2''
``18 U.S.C. 1118............................ 2A1.1, 2A1.2''
``18 U.S.C. 1119............................ 2A1.1, 2A1.2, 2A1.3,
2A1.4, 2A2.1''
``18 U.S.C. 1120............................ 2A1.1, 2A1.2, 2A1.3,
2A1.4''
``18 U.S.C. 1121............................ 2A1.1, 2A1.2''
``18 U.S.C. 1204............................ 2J1.2''
``18 U.S.C. 1716D........................... 2Q2.1''
``18 U.S.C. 2114(b)......................... 2B1.1''
``18 U.S.C. 2258(a),(b)..................... 2G2.1, 2G2.2''
``18 U.S.C. 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. 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. 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. 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. 2332a........................... 2A1.1, 2A1.2, 2A1.3,
2A1.4, 2A1.5, 2A2.1,
2A2.2, 2B1.3, 2K1.4''
``18 U.S.C. 2423(b)......................... 2A3.1, 2A3.2, 2A3.3''
``21 U.S.C. 843(a)(9)....................... 2D3.1''
``21 U.S.C. 843(c).......................... 2D3.1''
``21 U.S.C. 849............................. 2D1.2''
``21 U.S.C. 960(d)(3), (4).................. 2D1.11''
``21 U.S.C. 960(d)(5)....................... 2D1.13''
``21 U.S.C. 960(d)(6)....................... 2D3.1''
``42 U.S.C. 1307(b)......................... 2F1.1''
------------------------------------------------------------------------
In the line referenced to 18 U.S.C. 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. 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. 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. 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. 371 by inserting ``2K2.1 (if a
conspiracy to violate 18 U.S.C. 924(c)),'' immediately before
``2X1.1'';
In the line referenced to 18 U.S.C. 1153 by inserting ``2A2.3,''
immediately before ``2A3.1'';
In the line referenced to 18 U.S.C. 2114 by deleting ``2114'' and
inserting in lieu thereof ``2114(a)'';
and in the line referenced to 18 U.S.C. 2423 by deleting ``2423'' and
by inserting in lieu thereof ``2423(a)''.
Appendix A is amended by deleting:
``49 U.S.C. 1472(c)......................................... 2A5.2
49 U.S.C. 1472(h)(2)........................................ 2Q1.2
49 U.S.C. 1472(i)(1)........................................ 2A5.1
49 U.S.C. 1472(j)........................................... 2A5.2
49 U.S.C. 1472(k)(1)........................................ 2A5.3
49 U.S.C. 1472(l)........................................... 2K1.5
49 U.S.C. 1472(n)(1)........................................ 2A5.1''
and inserting in lieu thereof:
``49 U.S.C. 46308........................................... 2A5.2
49 U.S.C. 46312............................................. 2Q1.2
[[Page 25090]]
49 U.S.C. 46502(a), (b)..................................... 2A5.1
49 U.S.C. 46504............................................. 2A5.2
49 U.S.C. 46506............................................. 2A5.3
49 U.S.C. 46505............................................. 2K1.5
49 U.S.C. 46502(b).......................................... 2A5.1''
Section 2D3.1 is amended in the title by deleting: ``Illegal Use of
Registration Number to Manufacture, Distribute, Acquire, or Dispense a
Controlled Substance'' and inserting in lieu thereof ``Regulatory
Offenses Involving Registration Numbers; Unlawful Advertising Relating
to Schedule I 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''.
Reason for Amendment: This amendment makes Appendix A (Statutory
Index) more comprehensive. References are added for new offenses
enacted by the Violent Crime Control and Law Enforcement Act of 1994,
Public Law 103-322, 108 Stat. 1796; the Fresh Cut Flowers and Fresh Cut
Greens Promotion and Information Act of 1993, Public Law 103-190, 107
Stat. 2266; the Food Stamp Program Improvements Act of 1994, Public Law
103-225, 108 Stat. 106; the Social Security Independence and Program
Improvements Act of 1994, Public Law 103-296 108 Stat. 1464; the
Domestic Chemical Diversion Act of 1993, Public Law 103-200, 107 Stat.
2333; and the International Parental Kidnapping Crime Act of 1993,
Public Law 103-173, 107 Stat. 1998. In addition, the amendment conforms
Appendix A to revisions in existing statutes. Finally, the amendment
revises the titles of several offense guidelines to better reflect
their scope.
[FR Doc. 95-11371 Filed 5-9-95; 8:45 am]
BILLING CODE 2210-40-P
