[Federal Register Volume 59, Number 86 (Thursday, May 5, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-10782]
[[Page Unknown]]
[Federal Register: May 5, 1994]
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Part III
United States Sentencing Commission
_______________________________________________________________________
Submission to Congress of Amendments to the Sentencing Guidelines;
Notices
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 Commission on April 28, 1994, 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), as amended by section 7109 of the
Anti-Drug Abuse Act of 1988 (Pub. L. 100-690, Nov. 18, 1988), the
Commission has specified an effective date of November 1, 1994, 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 30, 1994.
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, 1994) by operation of law.
Notice of the amendments submitted to the Congress on April 28,
1994, was published in the Federal Register of December 21, 1993 (58 FR
67521). A public hearing on the proposed amendments was held in
Washington, DC, on March 24, 1994. After review of the hearing
testimony and additional public comment, the Commission promulgated the
amendments, 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); sec. 7109 of the Anti-
Drug Abuse Act of 1988 (Pub. L. 100-690).
William W. Wilkins, Jr.,
Chairman.
Amendments to the Sentencing Guidelines
Pursuant to section 994(p) of title 28, United States Code, as
amended by section 7109 of the Anti-Drug Abuse Act of 1988 [Pub. L.
100-690, Nov. 18, 1988, 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, 1994, for these amendments.
Policy Statements, and Official Commentary
1. Amendment: The Commentary to Sec. 1B1.3 captioned ``Application
Notes'' is amended in Note 2 by inserting the following additional
paragraph as the eighth paragraph:
``A defendant's relevant conduct does not include the conduct of
members of a conspiracy prior to the defendant's joining the
conspiracy, even if the defendant knows of that conduct (e.g., in the
case of a defendant who joins an ongoing drug distribution conspiracy
knowing that it had been selling two kilograms of cocaine per week, the
cocaine sold prior to the defendant's joining the conspiracy is not
included as relevant conduct in determining the defendant's offense
level). The Commission does not foreclose the possibility that there
may be some unusual set of circumstances in which the exclusion of such
conduct may not adequately reflect the defendant's culpability; in such
a case, an upward departure may be warranted.''.
The Commentary to Sec. 1B1.3 captioned ``Application Notes'' is
amended in Note 9(B) by deleting ``and the time interval between
offenses'' and inserting in lieu thereof:
``, the regularity (repetitions) of the offenses, and the time interval
between the offenses. When one of the above factors is absent, a
stronger presence of at least one of the other factors is required. For
example, where the conduct alleged to be relevant is relatively remote
to the offense of conviction, a stronger showing of similarity or
regularity is necessary to compensate for the absence of temporal
proximity.''.
Reason for Amendment: This amendment clarifies the operation of
Sec. 1B1.3 (Relevant Conduct) with respect to the defendant's
accountability for the actions of other conspirators prior to the
defendant's joining the conspiracy. The amendment is in accord with the
rule stated in recent caselaw. See, e.g., United States v. Carreon, 11
F.3d 1225 (5th Cir. 1994); United States v. Petty, 982 F.2d 1374, 1377
(9th Cir. 1993); United States v. O'Campo, 973 F.2d 1015, 1026 (1st
Cir. 1992). Cf. United States v. Miranda-Ortiz, 926 F.2d 172, 178 (2d
Cir. 1991); United States v. Edwards, 945 F.2d 1387, 1393 (7th Cir.
1991)) (applying earlier versions of Sec. 1B1.3). By expressly
addressing this issue, this amendment will ensure consistency in
guideline interpretation. In addition, this amendment adds a well-
phrased formulation developed by the Ninth Circuit in United States v.
Hahn, 960 F.2d 903 (9th Cir. 1992), to the commentary addressing the
circumstances in which multiple acts constitute the ``same course of
conduct.''.
2. Amendment: Section 1B1.10(a) is amended by deleting
``guidelines'' and inserting in lieu thereof ``Guidelines Manual'', by
deleting ``may be considered'' and inserting in lieu thereof ``is
authorized'', by inserting ``and thus is not authorized'' immediately
following ``policy statement'', and by deleting ``subsection (d)''
wherever it appears and inserting in lieu thereof in each instance
``subsection (c)''.
Section 1B1.10(b) is amended by inserting ``, and to what extent,''
immediately before ``a reduction'', and by deleting ``originally
imposed had the guidelines, as amended, been in effect at that time''
and inserting in lieu thereof ``imposed had the amendment(s) to the
guidelines listed in subsection (c) been in effect at the time the
defendant was sentenced''.
Section 1B1.10 is amended by deleting subsection (c), and by
redesignating subsection (d) as subsection (c).
'The Commentary to Sec. 1B1.10 captioned ``Application Note'' is
amended by deleting ``Note'' and inserting in lieu thereof ``Notes'',
and by deleting Note 1 and inserting in lieu thereof:
``1. Eligibility for consideration under 18 U.S.C. 3582(c)(2) is
triggered only by an amendment listed in subsection (c) that lowers the
applicable guideline range.
2. In determining the amended guideline range under subsection (b),
the court shall substitute only the amendments listed in subsection (c)
for the corresponding guideline provisions that were applied when the
defendant was sentenced. All other guideline application decisions
remain unaffected.''.
The Commentary to Sec. 1B1.10 captioned ``Background'' is amended
in the last paragraph by deleting ``subsection (d)'' and inserting in
lieu thereof ``subsection (c)''.
Reason for Amendment: This amendment revises Sec. 1B1.10 to
substantially simplify its operation. Under this amendment, the court
will recalculate the guideline range using only those amendments
expressly designated as retroactive. In addition, this amendment
deletes current Sec. 1B1.10(c), a rather complex subsection, as an
unnecessary restriction on the court's consideration of a revised
sentence in response to an amended guideline range. Finally, this
amendment makes a number of minor clarifying revisions.
3. Amendment: Section 2D1.1(c) is amended by deleting subdivisions
1-3, by renumbering subdivisions 4-19 as 2-17, and by inserting the
following as subdivision 1:
``(1) 30 KG or more of Heroin (or the equivalent Level 38 amount of
other Schedule I or II Opiates);
150 KG or more of Cocaine (or the equivalent amount of other Schedule I
or II Stimulants);
1.5 KG or more of Cocaine Base;
30 KG or more of PCP, or 3 KG or more of PCP (actual);
30 KG or more of Methamphetamine, or 3 KG or more of Methamphetamine
(actual), or 3 KG or more of `Ice';
300 G or more of LSD (or the equivalent amount of other Schedule I or
II Hallucinogens);
12 KG or more of Fentanyl;
3 KG or more of a Fentanyl Analogue;
30,000 KG or more of Marihuana;
6,000 KG or more of Hashish;
600 KG or more of Hashish Oil.''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 16 by deleting ``40'' and inserting in lieu thereof
``38'', by deleting ``35'' wherever it appears and inserting in lieu
thereof in each instance ``33'', and by deleting ``4 levels'' and
inserting in lieu thereof ``2 levels''.
The Commentary to Sec. 2D1.6 captioned ``Application Note'' is
amended in Note 1 by deleting ``(Sec. 2D1.1(c)(16))'' and inserting in
lieu thereof ``(Sec. 2D1.1(c)(14))'', and by deleting
``(Sec. 2D1.1(c)(19))'' and inserting in lieu thereof
``(Sec. 2D1.1(c)(17))''.
Reason for Amendment: This amendment sets the upper limit of the
Drug Quantity Table in Sec. 2D1.1 at level 38. The Commission has
determined that the extension of the Drug Quantity Table above level 38
for quantity itself is not required to ensure adequate punishment given
that organizers, leaders, managers, and supervisors of such offenses
will receive a 4-, 3-, or 2-level enhancement for their role in the
offense, and any participant will receive an additional 2-level
enhancement if a dangerous weapon is possessed in the offense.
4. Amendment: The Commentary to Sec. 4B1.1 captioned ``Application
Notes'' is amended in Note 2 by deleting the first sentence and
inserting in lieu thereof:
```Offense Statutory Maximum,' for the purposes of this guideline,
refers to the maximum term of imprisonment authorized for the offense
of conviction that is a crime of violence or controlled substance
offense, not including any increase in that maximum term under a
sentencing enhancement provision that applies because of the
defendant's prior criminal record (such sentencing enhancement
provisions are contained, for example, in 21 U.S.C. 841(b)(1)(A),
(b)(1)(B), (b)(1)(C), and (b)(1)(D)). For example, where the statutory
maximum term of imprisonment under 21 U.S.C. Sec. 841(b)(1)(C) is
increased from twenty years to thirty years because the defendant has
one or more qualifying prior drug convictions, the `Offense Statutory
Maximum' for the purposes of this guideline is twenty years and not
thirty years.''.
Reason for Amendment: This amendment defines the term ``offense
statutory maximum'' in Sec. 4B1.1 to mean the statutory maximum prior
to any enhancement based on prior criminal record (i.e., an enhancement
of the statutory maximum sentence that itself was based upon the
defendant's prior criminal record would not be used in determining the
offense level under this guideline). This rule avoids unwarranted
double counting as well as unwarranted disparity associated with
variations in the exercise of prosecutional discretion in seeking
enhanced penalties based on prior convictions.
It is noted that when the instruction to the Commission that
underlies Sec. 4B1.1 (28 U.S.C. 994(h)) was enacted by the Congress in
1984, the enhanced maximum sentences provided for recidivist drug
offenders (e.g., under 21 U.S.C. 841) did not exist.
5. Amendment: The Commentary to Sec. 5G1.2 is amended in the fourth
paragraph by deleting ``3D1.2'' and inserting in lieu thereof
``3D1.1'', and by inserting the following additional sentence at the
end:
``Note, however, that even in the case of a consecutive term of
imprisonment imposed under subsection (a), any term of supervised
release imposed is to run concurrently with any other term of
supervised release imposed. See 18 U.S.C. 3624(e).''.
Reason for Amendment: This amendment revises the Commentary to
Sec. 5G1.2 to clarify that the Commission's interpretation is that 18
U.S.C. 3624(e) requires multiple terms of supervised release to run
concurrently in all cases. This interpretation is in accord with the
view stated in United States v. Gullickson, 982 F.2d 1231, 1236 (8th
Cir. 1993). In contrast, two courts of appeals have cited the current
commentary as supporting the view that, notwithstanding the language in
18 U.S.C. 3624(e) stating that terms of supervised release run
concurrently, a court may order that supervised release terms run
consecutively under certain circumstances. See United States v.
Shorthouse, 7 F.3d 149 (9th Cir. 1993); United States v. Maxwell, 966
F.2d 545, 551 (10th Cir. 1992).
6. Amendment: The Introductory Commentary to Chapter Five, Part H,
is amended in the second paragraph by inserting the following
additional sentence at the end:
``Furthermore, although these factors are not ordinarily relevant
to the determination of whether a sentence should be outside the
applicable guideline range, they may be relevant to this determination
in exceptional cases. See Sec. 5K2.0 (Grounds for Departure).''.
Section 5K2.0 is amended by inserting the following additional
paragraph as the fourth paragraph:
``An offender characteristic or other circumstance that is not
ordinarily relevant in determining whether a sentence should be outside
the applicable guideline range may be relevant to this determination if
such characteristic or circumstance is present to an unusual degree and
distinguishes the case from the `heartland' cases covered by the
guidelines in a way that is important to the statutory purposes of
sentencing.''.
Section 5K2.0 is amended by inserting the following commentary at
the end:
Commentary
The last paragraph of this policy statement sets forth the
conditions under which an offender characteristic or other circumstance
that is not ordinarily relevant to a departure from the applicable
guideline range may be relevant to this determination. The Commission
does not foreclose the possibility of an extraordinary case that,
because of a combination of such characteristics or circumstances,
differs significantly from the `heartland' cases covered by the
guidelines in a way that is important to the statutory purposes of
sentencing, even though none of the characteristics or circumstances
individually distinguishes the case. However, the Commission believes
that such cases will be extremely rare.
In the absence of a characteristic or circumstance that
distinguishes a case as sufficiently atypical to warrant a sentence
different from that called for under the guidelines, a sentence outside
the guideline range is not authorized. See 18 U.S.C. 3553(b). For
example, dissatisfaction with the available sentencing range or a
preference for a different sentence than that authorized by the
guidelines is not an appropriate basis for a sentence outside the
applicable guideline range.''.
Reason for Amendment: This amendment provides guidance as to when
an offender characteristic or other circumstance (or combination of
such characteristics or circumstances) that is not ordinarily relevant
to a determination of whether a sentence should be outside the
applicable guideline range may be relevant to this determination. Such
guidance should enhance consistency in decisions regarding guideline
departures.
[FR Doc. 94-10782 Filed 5-4-94; 8:45 am]
BILLING CODE BAC2210-40-P
