[Federal Register Volume 75, Number 93 (Friday, May 14, 2010)]
[Notices]
[Pages 27388-27398]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-11552]
[[Page 27387]]
-----------------------------------------------------------------------
Part II
United States Sentencing Commission
-----------------------------------------------------------------------
Sentencing Guidelines for United States Courts; Notice
Federal Register / Vol. 75 , No. 93 / Friday, May 14, 2010 /
Notices
[[Page 27388]]
-----------------------------------------------------------------------
UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice of submission to Congress of amendments to the
sentencing guidelines effective November 1, 2010.
-----------------------------------------------------------------------
SUMMARY: Pursuant to its authority under 28 U.S.C. 994(p), the
Commission has promulgated amendments to the sentencing guidelines,
policy statements, commentary, and statutory index. This notice sets
forth the amendments and the reason for each amendment.
DATES: The Commission has specified an effective date of November 1,
2010, for the amendments set forth in this notice.
FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs
Officer, 202-502-4597. The amendments set forth in this notice also may
be accessed through the Commission's Web site at http://www.ussc.gov.
SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is
an independent agency in the judicial branch of the United States
Government. The Commission promulgates sentencing guidelines and policy
statements for federal sentencing courts pursuant to 28 U.S.C. 994(a).
The Commission also periodically reviews and revises previously
promulgated guidelines pursuant to 28 U.S.C. 994(o) and generally
submits guideline amendments to Congress pursuant to 28 U.S.C. 994(p)
not later than the first day of May each year. Absent action of
Congress to the contrary, submitted amendments become effective by
operation of law on the date specified by the Commission (generally
November 1 of the year in which the amendments are submitted to
Congress).
Notice of proposed amendments was published in the Federal Register
on January 21, 2010 (see 75 FR 3525). The Commission held a public
hearing on the proposed amendments in Washington, DC, on March 17,
2010. On April 29, 2010, the Commission submitted these amendments to
Congress and specified an effective date of November 1, 2010.
Authority: 28 U.S.C. 994(a), (o), and (p); USSC Rule of Practice
and Procedure 4.1.
William K. Sessions III,
Chair.
1. Amendment: Chapter Five, Part A, is amended in the Sentencing
Table by redesignating Zones A, B, C, and D (as designated by Amendment
462, see USSG Appendix C, Amendment 462 (effective November 1, 1992))
as follows: Zone A (containing all guideline ranges having a minimum of
zero months); Zone B (containing all guideline ranges having a minimum
of at least one but not more than nine months); Zone C (containing all
guideline ranges having a minimum of at least ten but not more than
twelve months); and Zone D (containing all guideline ranges having a
minimum of fifteen months or more).
The Commentary to Sec. 5B1.1 captioned ``Application Notes'' is
amended in Note 1(b) by striking ``six'' and inserting ``nine''; and in
Note 2 by striking ``eight'' and inserting ``ten''.
The Commentary to Sec. 5C1.1 captioned ``Application Notes'' is
amended in Note 3 in the first paragraph by striking ``six'' and
inserting ``nine''; in Note 4 by striking ``eight, nine, or ten
months'' and inserting ``ten or twelve months''; by striking ``8-14''
and inserting ``10-16'' both places it appears; by striking ``sentence
of four'' and inserting ``sentence of five'' both places it appears; by
striking ``four'' before ``months community''and inserting ``five''; by
striking ``five'' after ``and a sentence of'' and inserting ``ten''; by
striking Note 6 and inserting the following:
``6. There may be cases in which a departure from the sentencing
options authorized for Zone C of the Sentencing Table (under which
at least half the minimum term must be satisfied by imprisonment) to
the sentencing options authorized for Zone B of the Sentencing Table
(under which all or most of the minimum term may be satisfied by
intermittent confinement, community confinement, or home detention
instead of imprisonment) is appropriate to accomplish a specific
treatment purpose. Such a departure should be considered only in
cases where the court finds that (A) the defendant is an abuser of
narcotics, other controlled substances, or alcohol, or suffers from
a significant mental illness, and (B) the defendant's criminality is
related to the treatment problem to be addressed.
In determining whether such a departure is appropriate, the
court should consider, among other things, (1) the likelihood that
completion of the treatment program will successfully address the
treatment problem, thereby reducing the risk to the public from
further crimes of the defendant, and (2) whether imposition of less
imprisonment than required by Zone C will increase the risk to the
public from further crimes of the defendant.
Examples: The following examples both assume the applicable
guideline range is 12-18 months and the court departs in accordance
with this application note. Under Zone C rules, the defendant must
be sentenced to at least six months imprisonment. (1) The defendant
is a nonviolent drug offender in Criminal History Category I and
probation is not prohibited by statute. The court departs downward
to impose a sentence of probation, with twelve months of
intermittent confinement, community confinement, or home detention
and participation in a substance abuse treatment program as
conditions of probation. (2) The defendant is convicted of a Class A
or B felony, so probation is prohibited by statute (see Sec.
5B1.1(b)). The court departs downward to impose a sentence of one
month imprisonment, with eleven months in community confinement or
home detention and participation in a substance abuse treatment
program as conditions of supervised release.''
In Note 7 by striking the last sentence; in Note 8 by striking
``twelve'' and inserting ``15''; and by redesignating Note 8 as Note 9
and inserting after Note 7 the following:
``8. In a case in which community confinement in a residential
treatment program is imposed to accomplish a specific treatment
purpose, the court should consider the effectiveness of the
residential treatment program.''
Reason for Amendment: This amendment is a two-part amendment
expanding the availability of alternatives to incarceration. The
amendment provides a greater range of sentencing options to courts with
respect to certain offenders by expanding Zones B and C of the
Sentencing Table by one level each and addresses cases in which a
departure from imprisonment to an alternative to incarceration (such as
intermittent confinement, community confinement, or home confinement)
may be appropriate to accomplish a specific treatment purpose.
The amendment is a result of the Commission's continued multi-year
study of alternatives to incarceration. The Commission initiated this
study in recognition of increased interest in alternatives to
incarceration by all three branches of government and renewed public
debate about the size of the federal prison population and the need for
greater availability of alternatives to incarceration for certain
nonviolent first offenders. See generally 28 U.S.C. 994(g), (j).
As part of the study, the Commission held a two-day national
symposium at which the Commission heard from experts on alternatives to
incarceration, including federal and state judges, congressional staff,
professors of law
[[Page 27389]]
and the social sciences, corrections and alternative sentencing
practitioners and specialists, federal and state prosecutors and
defense attorneys, prison officials, and others involved in criminal
justice. See United States Sentencing Commission, Symposium on
Alternatives to Incarceration (July 2008). In considering the
amendment, the Commission also reviewed federal sentencing data, public
comment and testimony, recent scholarly literature, current federal and
state practices, and feedback in various forms from federal judges.
First, the amendment expands Zones B and C of the Sentencing Table
in Chapter Five. Specifically, it expands Zone B by one level for each
Criminal History Category (taking this area from Zone C), and expands
Zone C by one level for each Criminal History Category (taking this
area from Zone D). Accordingly, under the amendment, defendants in Zone
C with an applicable guideline range of 8-14 months or 9-15 months are
moved to Zone B, and defendants in Zone D with an applicable guideline
range of 12-18 months are moved to Zone C. Conforming changes also are
made to Sec. Sec. 5B1.1 (Imposition of a Term of Probation) and 5C1.1.
In considering this one-level expansion, the Commission observed that
approximately 42 percent of the Zone C offenders covered by the
amendment and approximately 52 percent of the Zone D offenders covered
by the amendment already receive sentences below the applicable
guideline range.
The Commission estimates that of the 71,054 offenders sentenced in
fiscal year 2009 for which complete sentencing guideline application
information is available, 1,565 offenders in Zone C, or 2.2 percent,
would have been in Zone B of the Sentencing Table under the amendment,
and 2,734 offenders in Zone D, or 3.8 percent, would have been in Zone
C. Not all of these offenders would have been eligible for an
alternative to incarceration, however, because many were non-citizens
who may have been subject to an immigration detainer and some were
statutorily prohibited from being sentenced to a term of probation,
see, e.g., 18 U.S.C. 3561(a)(1) (prohibiting a defendant convicted of a
Class A or Class B felony from being sentenced to a term of probation).
As a further reason for the zone expansion, Commission data
indicate that courts often sentence offenders in Zone D with an
applicable guideline range of 12-18 months to a term of imprisonment of
12 months and one day for the specific purpose of making such offenders
eligible for credit for satisfactory behavior while in prison. See 18
U.S.C. 624(b). For such an offender, assuming the maximum ``good time
credit'' is earned, the sentence effectively becomes approximately ten
and one-half months. Given that prior to the amendment the highest
guideline range in Zone C was 10-16 months, the Commission determined
that offenders in Zone D with an applicable guideline range of 12-18
months, many of whom effectively serve a sentence at the lower end of
the highest Zone C sentencing range, should be included in Zone C.
Second, the amendment clarifies and illustrates certain cases in
which a departure may be appropriate to accomplish a specific treatment
purpose. Specifically, it amends an existing departure provision at
Sec. 5C1.1 (Imposition of a Term of Imprisonment), Application Note 6.
As amended, the application note states that a departure from the
sentencing options authorized for Zone C of the Sentencing Table to
accomplish a specific treatment purpose should be considered only in
cases where the court finds that (A) the defendant is an abuser of
narcotics, other controlled substances, or alcohol, or suffers from a
significant mental illness, and (B) the defendant's criminality is
related to the treatment problem to be addressed.
Under the application note as amended, the court may depart from
the sentencing options authorized for Zone C (under which at least half
the minimum term must be satisfied by imprisonment) to the sentencing
options authorized for Zone B (under which all or most of the minimum
term may be satisfied by intermittent confinement, community
confinement, or home detention instead of imprisonment) to accomplish a
specific treatment purpose. The application note also provides that, in
determining whether such a departure is appropriate, the court should
consider, among other things, two factors relating to public safety:
(1) The likelihood that completion of the treatment program will
successfully address the treatment problem, thereby reducing the risk
to the public from further crimes of the defendant, and (2) whether
imposition of less imprisonment than required by Zone C will increase
the risk to the public from further crimes of the defendant. Some
public comment, testimony, and research suggested that successful
completion of treatment programs may reduce recidivism rates and that,
for some defendants, confinement at home or in the community instead of
imprisonment may better address both the defendant's need for treatment
and the need to protect the public. Accordingly, the Commission amended
the application note to clarify the criteria and to provide examples of
such cases.
The amendment also makes two other changes to the Commentary to
Sec. 5C1.1 regarding the factors to be considered in determining
whether to impose an alternative to incarceration. The amendment adds
an application note providing that, in a case in which community
confinement in a residential treatment program is imposed to accomplish
a specific treatment purpose, the court should consider the
effectiveness of the treatment program. The amendment also deletes as
unnecessary the second sentence of Application Note 7.
2. Amendment: Chapter Five, Part H, is amended in the Introductory
Commentary by striking the first paragraph and inserting the following:
``This Part addresses the relevance of certain specific offender
characteristics in sentencing. The Sentencing Reform Act (the `Act')
contains several provisions regarding specific offender
characteristics:
First, the Act directs the Commission to ensure that the
guidelines and policy statements `are entirely neutral' as to five
characteristics--race, sex, national origin, creed, and
socioeconomic status. See 28 U.S.C. 994(d).
Second, the Act directs the Commission to consider whether
eleven specific offender characteristics, `among others', have any
relevance to the nature, extent, place of service, or other aspects
of an appropriate sentence, and to take them into account in the
guidelines and policy statements only to the extent that they do
have relevance. See 28 U.S.C. 994(d).
Third, the Act directs the Commission to ensure that the
guidelines and policy statements, in recommending a term of
imprisonment or length of a term of imprisonment, reflect the
`general inappropriateness' of considering five of those
characteristics--education; vocational skills; employment record;
family ties and responsibilities; and community ties. See 28 U.S.C.
994(e).
Fourth, the Act also directs the sentencing court, in
determining the particular sentence to be imposed, to consider,
among other factors, `the history and characteristics of the
defendant'.
See 18 U.S.C. 3553(a)(1).
Specific offender characteristics are taken into account in the
guidelines in several ways. One important specific offender
characteristic is the defendant's criminal history, see 28 U.S.C.
994(d)(10), which is taken into account in the guidelines in Chapter
Four (Criminal History and Criminal Livelihood). See Sec. 5H1.8
(Criminal History). Another specific offender characteristic in the
guidelines is the
[[Page 27390]]
degree of dependence upon criminal history for a livelihood, see 28
U.S.C. 994(d)(11), which is taken into account in Chapter Four, Part B
(Career Offenders and Criminal Livelihood). See Sec. 5H1.9 (Dependence
upon Criminal Activity for a Livelihood). Other specific offender
characteristics are accounted for elsewhere in this manual. See, e.g.,
Sec. Sec. 2C1.1(a)(1) and 2C1.2(a)(1) (providing alternative base
offense levels if the defendant was a public official); 3B1.3 (Abuse of
Position of Trust or Use of Special Skill); and 3E1.1 (Acceptance of
Responsibility).
The Supreme Court has emphasized that the advisory guideline system
should `continue to move sentencing in Congress' preferred direction,
helping to avoid excessive sentencing disparities while maintaining
flexibility sufficient to individualize sentences where necessary.' See
United States v. Booker, 543 U.S. 220, 264-65 (2005). Although the
court must consider `the history and characteristics of the defendant'
among other factors, see 18 U.S.C. 3553(a), in order to avoid
unwarranted sentencing disparities the court should not give them
excessive weight. Generally, the most appropriate use of specific
offender characteristics is to consider them not as a reason for a
sentence outside the applicable guideline range but for other reasons,
such as in determining the sentence within the applicable guideline
range, the type of sentence (e.g., probation or imprisonment) within
the sentencing options available for the applicable Zone on the
Sentencing Table, and various other aspects of an appropriate sentence.
To avoid unwarranted sentencing disparities among defendants with
similar records who have been found guilty of similar conduct, see 18
U.S.C. 3553(a)(6), 28 U.S.C. 991(b)(1)(B), the guideline range, which
reflects the defendant's criminal conduct and the defendant's criminal
history, should continue to be `the starting point and the initial
benchmark.' Gall v. United States, 552 U.S. 38, 49 (2007).
Accordingly, the purpose of this Part is to provide sentencing
courts with a framework for addressing specific offender
characteristics in a reasonably consistent manner. Using such a
framework in a uniform manner will help `secure nationwide
consistency,' see Gall v. United States, 552 U.S. 38, 49 (2007), `avoid
unwarranted sentencing disparities,' see 28 U.S.C. 991(b)(1)(B), 18
U.S.C. 3553(a)(6), `provide certainty and fairness,' see 28 U.S.C.
991(b)(1)(B), and `promote respect for the law,' see 18 U.S.C.
3553(a)(2)(A).
This Part allocates specific offender characteristics into three
general categories.
In the first category are specific offender characteristics the
consideration of which Congress has prohibited (e.g., Sec. 5H1.10
(Race, Sex, National Origin, Creed, Religion, and Socio-Economic
Status)) or that the Commission has determined should be prohibited.
In the second category are specific offender characteristics that
Congress directed the Commission to take into account in the guidelines
only to the extent that they have relevance to sentencing. See 28
U.S.C. 994(d). For some of these, the policy statements indicate that
these characteristics may be relevant in determining whether a sentence
outside the applicable guideline range is warranted (e.g., age; mental
and emotional condition; physical condition). These characteristics may
warrant a sentence outside the applicable guideline range if the
characteristic, individually or in combination with other such
characteristics, is present to an unusual degree and distinguishes the
case from the typical cases covered by the guidelines. These specific
offender characteristics also may be considered for other reasons, such
as in determining the sentence within the applicable guideline range,
the type of sentence (e.g., probation or imprisonment) within the
sentencing options available for the applicable Zone on the Sentencing
Table, and various other aspects of an appropriate sentence.''; in the
second paragraph by striking ``The Commission has determined that
certain circumstances'' and inserting the following: ``In the third
category are specific offender characteristics that Congress directed
the Commission to ensure are reflected in the guidelines and policy
statements as generally inappropriate in recommending a term of
imprisonment or length of a term of imprisonment. See 28 U.S.C. 994(e).
The policy statements indicate that these characteristics''; by
striking ``or to the determination of'' and inserting ``, the type of
sentence (e.g., probation or imprisonment) within the sentencing
options available for the applicable Zone on the Sentencing Table,
or''; by striking ``incidents'' and inserting ``aspects''; and by
striking the last paragraph and inserting the following:
``As with the other provisions in this manual, these policy
statements `are evolutionary in nature'. See Chapter One, Part A,
Subpart 2 (Continuing Evolution and Role of the Guidelines); 28
U.S.C. 994(o). The Commission expects, and the Sentencing Reform Act
contemplates, that continuing research, experience, and analysis
will result in modifications and revisions.
The nature, extent, and significance of specific offender
characteristics can involve a range of considerations. The
Commission will continue to provide information to the courts on the
relevance of specific offender characteristics in sentencing, as the
Sentencing Reform Act contemplates. See, e.g., 28 U.S.C.
995(a)(12)(A) (the Commission serves as a `clearinghouse and
information center' on federal sentencing). Among other things, this
may include information on the use of specific offender
characteristics, individually and in combination, in determining the
sentence to be imposed (including, where available, information on
rates of use, criteria for use, and reasons for use); the
relationship, if any, between specific offender characteristics and
(A) the `forbidden factors' specified in 28 U.S.C. 994(d) and (B)
the `discouraged factors' specified in 28 U.S.C. 994(e); and the
relationship, if any, between specific offender characteristics and
the statutory purposes of sentencing.''
Section 5H1.1 is amended by striking the first sentence and
inserting the following:
``Age (including youth) may be relevant in determining whether a
departure is warranted, if considerations based on age, individually
or in combination with other offender characteristics, are present
to an unusual degree and distinguish the case from the typical cases
covered by the guidelines.''
Section 5H1.3 is amended by striking the first paragraph and
inserting the following:
``Mental and emotional conditions may be relevant in determining
whether a departure is warranted, if such conditions, individually
or in combination with other offender characteristics, are present
to an unusual degree and distinguish the case from the typical cases
covered by the guidelines. See also Chapter Five, Part K, Subpart 2
(Other Grounds for Departure).
In certain cases a downward departure may be appropriate to
accomplish a specific treatment purpose. See Sec. 5C1.1,
Application Note 6.''
Section 5H1.4 is amended in the first paragraph by striking the
first sentence and inserting the following: ``Physical condition or
appearance, including physique, may be relevant in determining whether
a departure is warranted, if the condition or appearance, individually
or in combination with other offender characteristics, is present to an
unusual degree and distinguishes the case from the typical cases
covered by the guidelines.''; in the second sentence by striking
``However, an'' and inserting ``An''; in the second paragraph by
inserting ``ordinarily'' after ``or abuse''; in the last sentence by
striking ``supervisory body'' and inserting
[[Page 27391]]
``probation office''; by inserting as the third paragraph the
following: ``In certain cases a downward departure may be appropriate
to accomplish a specific treatment purpose. See Sec. 5C1.1,
Application Note 6.''; and in the fourth paragraph, as amended by this
amendment, by striking ``Similarly, where'' and inserting ``In a case
in which''.
Section 5H1.11 is amended by inserting as the first paragraph the
following: ``Military service may be relevant in determining whether a
departure is warranted, if the military service, individually or in
combination with other offender characteristics, is present to an
unusual degree and distinguishes the case from the typical cases
covered by the guidelines.''; and in the second paragraph, as amended
by this amendment, by striking ``Military, civic'' and inserting
``Civic''.
Section 5K2.0(d)(1) is amended by striking ``third and last
sentences'' and inserting ``last sentence''.
Reason for Amendment: This multi-part amendment revises the
introductory commentary to Chapter Five, Part H (Specific Offender
Characteristics), amends the policy statements relating to age, mental
and emotional conditions, physical condition, and military service, and
makes conforming changes to Sec. 5K2.0 (Grounds for Departure). The
amendment is a result of a review of the departure provisions in the
Guidelines Manual begun by the Commission this year. See 74 FR 46478,
46479 (September 9, 2009). The Commission undertook this review, in
part, in response to an observed decrease in reliance on departure
provisions in the Guidelines Manual in favor of an increased use of
variances.
First, the amendment revises the introductory commentary to Chapter
Five, Part H. As amended, the introductory commentary explains that the
purpose of Part H is to provide sentencing courts with a framework for
addressing specific offender characteristics in a reasonably consistent
manner. Using such a framework in a uniform manner will help ``secure
nationwide consistency,'' Gall v. United States, 552 U.S. 38, 49
(2007), ``avoid unwarranted sentencing disparities,'' 28 U.S.C.
991(b)(1)(B), and ``promote respect for the law,'' 18 U.S.C.
3553(a)(2)(A).
Accordingly, the amended introductory commentary outlines three
categories of specific offender characteristics described in the
Sentencing Reform Act and the statutory and guideline standards that
apply to consideration of each category. Courts must consider ``the
history and characteristics of the defendant'' among other factors. See
18 U.S.C. 3553(a). However, in order to avoid unwarranted sentencing
disparities, see 18 U.S.C. 3553(a)(6), 28 U.S.C. 991(b)(1)(B), courts
should not give specific offender characteristics excessive weight. The
guideline range, which reflects the defendant's criminal conduct and
the defendant's criminal history, should continue to be ``the starting
point and the initial benchmark.'' Gall, supra, at 49.
The amended introductory commentary also states that the Commission
will continue to provide information to the courts on the relevance of
specific offender characteristics in sentencing, as contemplated by the
Sentencing Reform Act. See, e.g., 28 U.S.C. 995(a)(12)(A). The
Commission expects that providing such information on an ongoing basis
will promote nationwide consistency in the consideration of specific
offender characteristics by courts and help avoid unwarranted
sentencing disparities.
Second, the amendment amends several policy statements that cover
specific offender characteristics addressed in 28 U.S.C. 994(d):
Sec. Sec. 5H1.1 (Age), 5H1.3 (Mental and Emotional Conditions), and
5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or
Abuse; Gambling Addiction). As amended, these policy statements
generally provide that age; mental and emotional conditions; and
physical condition or appearance, including physique, ``may be relevant
in determining whether a departure is warranted, if [the offender
characteristic], individually or in combination with other offender
characteristics, is present to an unusual degree and distinguishes the
case from the typical cases covered by the guidelines.'' The Commission
adopted this departure standard after reviewing recent federal
sentencing data, trial and appellate court case law, scholarly
literature, public comment and testimony, and feedback in various forms
from federal judges.
The amendment also amends Sec. Sec. 5H1.3 and 5H1.4 to provide
that in certain cases described in Application Note 6 to Sec. 5C1.1
(Imposition of a Term of Imprisonment) a departure may be appropriate.
Third, the amendment amends Sec. 5H1.11 (Military, Civic,
Charitable, or Public Service; Employment-Related Contributions; Record
of Prior Good Works) to draw a distinction between military service and
the other circumstances covered by that policy statement. As amended,
the policy statement provides that military service ``may be relevant
in determining whether a departure is warranted, if the military
service, individually or in combination with other offender
characteristics, is present to an unusual degree and distinguishes the
case from the typical cases covered by the guidelines.'' The Commission
determined that applying this departure standard to consideration of
military service is appropriate because such service has been
recognized as a traditional mitigating factor at sentencing. See, e.g.,
Porter v. McCollum, 130 S. Ct. 447, 455 (2009) (``Our Nation has a long
tradition of according leniency to veterans in recognition of their
service, especially for those who fought on the front lines * * *'').
Finally, the amendment makes conforming changes to Sec. 5K2.0
(Grounds for Departure).
3. Amendment: The Commentary to Sec. 2L1.2 captioned ``Application
Notes'' is amended in Note 7 by striking ``Consideration'' and
inserting ``Based on Seriousness of a Prior Conviction.''
The Commentary to Sec. 2L1.2 captioned ``Application Notes'' is
amended by adding at the end the following:
``8. Departure Based on Cultural Assimilation.--There may be
cases in which a downward departure may be appropriate on the basis
of cultural assimilation. Such a departure should be considered only
in cases where (A) the defendant formed cultural ties primarily with
the United States from having resided continuously in the United
States from childhood, (B) those cultural ties provided the primary
motivation for the defendant's illegal reentry or continued presence
in the United States, and (C) such a departure is not likely to
increase the risk to the public from further crimes of the
defendant.
In determining whether such a departure is appropriate, the
court should consider, among other things, (1) the age in childhood
at which the defendant began residing continuously in the United
States, (2) whether and for how long the defendant attended school
in the United States, (3) the duration of the defendant's continued
residence in the United States, (4) the duration of the defendant's
presence outside the United States, (5) the nature and extent of the
defendant's familial and cultural ties inside the United States, and
the nature and extent of such ties outside the United States, (6)
the seriousness of the defendant's criminal history, and (7) whether
the defendant engaged in additional criminal activity after
illegally reentering the United States.''
Reason for Amendment: This amendment addresses when a downward
departure may be appropriate in an illegal reentry case sentenced under
Sec. 2L1.2 (Unlawfully
[[Page 27392]]
Entering or Remaining in the United States) on the basis of the
defendant's cultural assimilation to the United States.
Several circuits have upheld departures based on cultural
assimilation. See, e.g., United States v. Rodriguez-Montelongo, 263
F.3d 429, 433 (5th Cir. 2001); United States v. Sanchez-Valencia, 148
F.3d 1273, 1274 (11th Cir. 1998); United States v. Lipman, 133 F.3d
726, 730 (9th Cir. 1998). Other circuits have declined to rule on
whether such a departure may be warranted. See, e.g., United States v.
Galarza-Payan, 441 F.3d 885, 889 (10th Cir. 2006) (``We need not
address that debate in the altered post-Booker landscape.''); United
States v. Melendez-Torres, 420 F.3d 45, 51 n.3 (1st Cir. 2005); see
also United States v. Ticas, 219 F. App'x 44, 45 (2d Cir. 2007)
(acknowledging that the Second Circuit has never recognized cultural
assimilation as a basis for a downward departure). Some circuits,
though not foreclosing the possibility of cultural assimilation
departures, have stated that district courts are within their
discretion to deny such departures in light of a defendant's criminal
past and society's increased interest in *keeping aliens who have
committed crimes out of the United States following their deportation.*
United States v. Roche-Martinez, 467 F.3d 591, 595 (7th Cir. 2006); see
also Galarza-Payan, supra, at 889-90 (stating that *in assessing the
reasonableness of a sentence [] a particular defendant's cultural ties
must be weighed against other factors such as (1) sentencing
disparities among defendants with similar backgrounds and
characteristics, and (2) the need for the sentence to reflect the
seriousness of the crime and promote respect for the law*).
In order to promote uniform consideration of cultural assimilation
by courts, the amendment adds an application note to Sec. 2L1.2
providing that a downward departure may be appropriate on the basis of
cultural assimilation. The application note provides that such a
departure may be appropriate if (A) the defendant formed cultural ties
primarily with the United States from having resided continuously in
the United States from childhood, (B) those cultural ties provided the
primary motivation for the defendant's illegal reentry or continued
presence in the United States, and (C) such a departure is not likely
to increase the risk to the public from further crimes of the
defendant. The application note also provides a non-exhaustive list of
factors the court should consider in determining whether such a
departure is appropriate.
4. Amendment: Section 1B1.1 is amended by redesignating
subdivisions (a) through (h) as (1) through (8), respectively; in
subdivision (4) (as so redesignated) by striking ``(a)'' and inserting
``(1)'', and by striking ``(c)'' and inserting ``(3)''; by striking the
first paragraph and inserting the following: ``(a) The court shall
determine the kinds of sentence and the guideline range as set forth in
the guidelines (see 18 U.S.C. 3553(a)(4)) by applying the provisions of
this manual in the following order, except as specifically directed:'';
by redesignating subdivision (i) as subsection (b) and, in that
subsection, by striking ``Refer to'' and inserting ``The court shall
then consider''; by striking ``to'' before ``any''; and by adding at
the end ``See 18 U.S.C. 3553(a)(5).''; and by adding at the end the
following: ``(c) The court shall then consider the applicable factors
in 18 U.S.C. 3553(a) taken as a whole. See 18 U.S.C. 3553(a).''.
The Commentary to Sec. 1B1.1 is amended by adding at the end the
following:
``Background: The court must impose a sentence `sufficient, but
not greater than necessary,' to comply with the purposes of
sentencing set forth in 18 U.S.C. 3553(a)(2). See 18 U.S.C. 3553(a).
Subsections (a), (b), and (c) are structured to reflect the three-
step process used in determining the particular sentence to be
imposed. If, after step (c), the court imposes a sentence that is
outside the guidelines framework, such a sentence is considered a
`variance'. See Irizarry v. United States, 128 S. Ct. 2198, 2200-03
(2008) (describing within-range sentences and departures as
`sentences imposed under the framework set out in the
Guidelines').''.
Reason for Amendment: This amendment amends Sec. 1B1.1
(Application Instructions) in light of United States v. Booker, 543
U.S. 220 (2005), and subsequent case law.
As explained more fully in Chapter One, Part A, Subpart 2
(Continuing Evolution and Role of the Guidelines) of the Guidelines
Manual, a district court is required to properly calculate and consider
the guidelines when sentencing. See 18 U.S.C. 3553(a)(4); Booker, 543
U.S. at 264 (``The district courts, while not bound to apply the
Guidelines, must * * * take them into account when sentencing.''); Rita
v. United States, 551 U.S. 338, 347-48 (2007) (stating that a district
court should begin all sentencing proceedings by correctly calculating
the applicable Guidelines range); Gall v. United States, 552 U.S. 38,
49 (2007) (``As a matter of administration and to secure nationwide
consistency, the Guidelines should be the starting point and the
initial benchmark.'').
After determining the guideline range, the district court should
refer to the Guidelines Manual and consider whether the case warrants a
departure. See 18 U.S.C. 3553(a)(5). ```Departure' is a term of art
under the Guidelines and refers only to non-Guidelines sentences
imposed under the framework set out in the Guidelines.'' Irizarry v.
United States, 128 S.Ct. 2198, 2202 (2008). A ``variance''--i.e., a
sentence outside the guideline range other than as provided for in the
Guidelines Manual--is considered by the court only after departures
have been considered.
Most circuits agree on a three-step approach, including the
consideration of departure provisions in the Guidelines Manual, in
determining the sentence to be imposed. See United States v. Dixon, 449
F.3d 194, 203-04 (1st Cir. 2006) (court must consider ``any applicable
departures''); United States v. Selioutsky, 409 F.3d 114, 118 (2d Cir.
2005) (court must consider ``available departure authority''); United
States v. Jackson, 467 F.3d 834, 838 (3d Cir. 2006) (same); United
States v. Moreland, 437 F.3d 424, 433 (4th Cir. 2006) (departures
``remain an important part of sentencing even after Booker''); United
States v. Tzep-Mejia, 461 F.3d 522, 525 (5th Cir. 2006) (``Post-Booker
case law recognizes three types of sentences under the new advisory
sentencing regime: (1) A sentence within a properly calculated
Guideline range; (2) a sentence that includes an upward or downward
departure as allowed by the Guidelines, which sentence is also a
Guideline sentence; or (3) a non-Guideline sentence which is either
higher or lower than the relevant Guideline sentence.'' (internal
footnote and citation omitted)); United States v. McBride, 434 F.3d
470, 476 (6th Cir. 2006) (district court ``still required to consider *
* * whether a Chapter 5 departure is appropriate''); United States v.
Hawk Wing, 433 F.3d 622, 631 (8th Cir. 2006) (``the district court must
decide if a traditional departure is appropriate'', and after that must
consider a variance (internal quotation omitted)); United States v.
Robertson, 568 F.3d 1203, 1210 (10th Cir. 2009) (district courts must
continue to apply departures); United States v. Jordi, 418 F.3d 1212,
1215 (11th Cir. 2005) (stating that ``the application of the guidelines
is not complete until the departures, if any, that are warranted are
appropriately considered''). But see United States v. Johnson, 427 F.3d
423, 426 (7th Cir. 2006) (stating that departures are ``obsolete'').
The amendment resolves the circuit conflict and adopts the three-
step approach followed by a majority of
[[Page 27393]]
circuits in determining the sentence to be imposed. The amendment
restructures Sec. 1B1.1 into three subsections to reflect the three-
step process. As amended, subsection (a) addresses how to apply the
provisions in the Guidelines Manual to properly determine the kinds of
sentence and the guideline range. Subsection (b) addresses the need to
consider the policy statements and commentary to determine whether a
departure is warranted. Subsection (c) addresses the need to consider
the applicable factors under 18 U.S.C. 3553(a) taken as a whole in
determining the appropriate sentence. The amendment also adds
background commentary referring to the statutory requirements of 18
U.S.C. 3553(a) and defining the term ``variance'' as ``a sentence that
is outside the guidelines framework''.
5. Amendment: Section 4A1.1 is amended by striking ``items (a)
through (f)'' and inserting ``subsections (a) through (e)''; in
subsection (c) by striking ``item'' and inserting ``subsection''; by
striking subsection (e) and redesignating subsection (f) as (e); and in
subsection (e) (as so redesignated) by striking ``item'' and inserting
``subsection''.
The Commentary to Sec. 4A1.1 captioned ``Application Notes'' is
amended by striking ``item'' and inserting ``subsection'' each place it
appears; by striking Note 5 and redesignating Note 6 as Note 5; and in
Note 5 (as so redesignated) by striking ``(f)'' and inserting ``(e)''
each place it appears.
The Commentary to Sec. 4A1.1 captioned ``Background'' is amended
by striking ``Subdivisions'' and inserting ``Subsections''; by striking
``implements one measure of recency by adding'' and inserting ``adds'';
and by striking the paragraph that begins ``Section 4A1.1(e)''.
Section 4A1.2 is amended in subsection (a)(2) by striking ``(f)''
and inserting ``(e)''; in subsection (k)(2) by striking subparagraph
(A) and by striking ``(B)''; in subsection (l) by striking ``(f)'' and
inserting ``(e)'', and by striking ``; Sec. 4A1.1(e) shall not
apply''; in subsection (n) by striking ``and (e)''; and in subsection
(p) by striking ``(f)'' and inserting ``(e)''.
The Commentary to Sec. 4A1.2 captioned ``Application Notes'' is
amended in Note 12(A) by striking ``subdivision'' and inserting
``subsection''.
Reason for Amendment: This amendment addresses a factor included in
the calculation of the criminal history score in Chapter Four of the
Guidelines Manual. Specifically, this amendment eliminates the
``recency'' points provided in subsection (e) of Sec. 4A1.1 (Criminal
History Category). Under Sec. 4A1.1(e), one or two points are added to
the criminal history score if the defendant committed the instant
offense less than two years after release from imprisonment on a
sentence counted under subsection (a) or (b) or while in imprisonment
or escape status on such a sentence. In addition to recency,
subsections (a), (b), (c), (d), and (f) add points to the criminal
history score to account for the seriousness of the prior offense and
the status of the defendant. These other factors remain included in the
criminal history score after the amendment.
The amendment is a result of the Commission's continued review of
criminal history issues. This multi-year review was prompted in part
because criminal history issues are often cited by sentencing courts as
reasons for imposing non-government sponsored below range sentences,
particularly in cases in which recency points were added to the
criminal history score under Sec. 4A1.1(e).
As part of its review, the Commission undertook analyses to
determine the extent to which recency points contribute to the ability
of the criminal history score to predict the defendant's risk of
recidivism. See generally USSG Ch. 4, Pt. A, intro. comment (``To
protect the public from further crimes of the particular defendant, the
likelihood of recidivism and future criminal behavior must be
considered.''). Recent research isolating the effect of Sec. 4A1.1(e)
on the predictive ability of the criminal history score indicated that
consideration of recency only minimally improves the predictive
ability.
In addition, the Commission received public comment and testimony
suggesting that the recency of the instant offense to the defendant's
release from imprisonment does not necessarily reflect increased
culpability. Public comment and testimony indicated that defendants who
recidivate tend to do so relatively soon after being released from
prison but suggested that, for many defendants, this may reflect the
challenges to successful reentry after imprisonment rather than
increased culpability.
Finally, Commission data indicated that many of the cases in which
recency points apply are sentenced under Chapter Two guidelines that
have provisions based on criminal history. The amendment responds to
suggestions that recency points are not necessary to adequately account
for criminal history in such cases.
6. Amendment: The Commentary to Sec. 2H1.1 captioned ``Statutory
Provisions'' is amended by inserting ``249,'' after ``248,''.
The Commentary to Sec. 2H1.1 captioned ``Application Notes'' is
amended in Note 4 by inserting ``gender identity,'' after ``gender,''.
Section 3A1.1(a) is amended by inserting ``gender identity,'' after
``gender,''.
The Commentary to Sec. 3A1.1 captioned ``Application Notes'' is
amended in Note 3 by inserting ``gender identity,'' after ``gender,'';
and by adding after Note 4 the following:
``5. For purposes of this guideline, `gender identity' means
actual or perceived gender-related characteristics. See 18 U.S.C.
249(c)(4).''.
The Commentary to Sec. 3A1.1 captioned ``Background'' is amended
in the first paragraph by striking ``(i.e.'' and all that follows
through ``victim)''; and by adding at the end of that paragraph the
following: ``In section 4703(a) of Public Law 111-84, Congress
broadened the scope of that directive to include gender identity; to
reflect that congressional action, the Commission has broadened the
scope of this enhancement to include gender identity.''.
Appendix A (Statutory Index) is amended by inserting after the line
referenced to 18 U.S.C. 247 the following: ``18 U.S.C. 249 2H1.1''; and
by inserting after the line referenced to 18 U.S.C. 1369 the following:
``18 U.S.C. 1389 2A2.2, 2A2.3, 2B1.1''.
Reason for Amendment: This amendment responds to the Matthew
Shepard and James Byrd, Jr. Hate Crimes Prevention Act (division E of
Pub. L. 111-84) (the ``Act''). The Act created two new offenses and
amended a 1994 directive to the Commission regarding crimes motivated
by hate.
The first new offense, 18 U.S.C. 249 (Hate crime acts), makes it
unlawful, whether or not acting under color of law, to willfully cause
bodily injury to any person or, through the use of fire, a firearm, a
dangerous weapon, or an explosive or incendiary device, to attempt to
cause bodily injury to any person because of the actual or perceived
race, color, religion, national origin, gender, sexual orientation,
gender identity, or disability of any person. A person who violates 18
U.S.C. 249 is subject to a term of imprisonment of up to 10 years or,
if the offense includes kidnapping, aggravated sexual abuse, or an
attempt to kill, or if death results from the offense, to imprisonment
for any term of years or life. The amendment amends Appendix A
(Statutory Index) to refer offenses under 18 U.S.C. 249 to Sec. 2H1.1
(Offenses Involving Individual Rights) because
[[Page 27394]]
that guideline covers similar offenses, e.g., 18 U.S.C. 241 (Conspiracy
against rights) and 242 (Deprivation of rights under color of law), and
contains appropriate enhancements to account for aggravating
circumstances that may be involved in a section 249 offense, e.g.,
subsection (b)(1), which provides a 6-level increase if the offense was
committed under color of law.
The Act also amended section 280003 of the Violent Crime Control
and Law Enforcement Act of 1994 (Pub. L. 103-322; 28 U.S.C. 994 note),
which contains a directive to the Commission regarding hate crimes. The
Commission implemented that directive by promulgating subsection (a) of
Sec. 3A1.1 (Hate Crime Motivation or Vulnerable Victim). See USSG App.
C, Amendment 521 (effective November 1, 1995). The Act broadened the
definition of ``hate crime'' in section 280003(a) to include crimes
motivated by actual or perceived ``gender identity'', which has the
effect of expanding the scope of the directive in section 280003(b) so
that it now requires the Commission to provide an enhancement for
crimes motivated by actual or perceived ``gender identity''. To reflect
the broadened definition, the amendment amends Sec. 3A1.1 so that the
enhancement in subsection (a) covers crimes motivated by actual or
perceived ``gender identity'' and makes conforming changes to
Sec. Sec. 2H1.1. The amendment also deletes as unnecessary the
parenthetical in the Background to Sec. 3A1.1, which provided an
example of *hate crime motivation*.
The second new offense, 18 U.S.C. 1389 (Prohibition on attacks on
United States servicemen on account of service), makes it unlawful to
knowingly assault or batter a United States serviceman or an immediate
family member of a United States serviceman, or to knowingly destroy or
injure the property of such serviceman or immediate family member, on
the account of the military service of that serviceman or the status of
that individual as a United States serviceman. A person who violates 18
U.S.C. 1389 is subject to a term of imprisonment of not more than 2
years in the case of a simple assault, or damage of not more than $500,
of not more than 5 years in the case of damage of more than $500, or of
not less than 6 months nor more than 10 years in the case of a battery,
or an assault resulting in bodily injury. The Commission determined
that offenses under 18 U.S.C. 1389 are similar to offenses involving
assault or property damage that are already referenced to Sec. Sec.
2A2.2 (Aggravated Assault), 2A2.3 (Minor Assault), and 2B1.1 (Theft,
Property Destruction, and Fraud) and therefore amended Appendix A
(Statutory Index) to refer the new offense to those guidelines.
7. Amendment: Section 8B2.1(b)(4) is amended by striking
``subdivision'' and inserting ``subparagraph'' each place it appears.
The Commentary to Sec. 8B2.1 captioned ``Application Notes'' is
amended in Note 2(D) by striking ``subdivision'' and inserting
``subparagraph''.
The Commentary to Sec. 8B2.1 captioned ``Application Notes'' is
amended by redesignating Note 6 as Note 7, and by inserting after Note
5 the following: ``6. Application of Subsection (b)(7).--Subsection
(b)(7) has two aspects.
First, the organization should respond appropriately to the
criminal conduct. The organization should take reasonable steps, as
warranted under the circumstances, to remedy the harm resulting from
the criminal conduct. These steps may include, where appropriate,
providing restitution to identifiable victims, as well as other forms
of remediation. Other reasonable steps to respond appropriately to the
criminal conduct may include self-reporting and cooperation with
authorities.
Second, the organization should act appropriately to prevent
further similar criminal conduct, including assessing the compliance
and ethics program and making modifications necessary to ensure the
program is effective. The steps taken should be consistent with
subsections (b)(5) and (c) and may include the use of an outside
professional advisor to ensure adequate assessment and implementation
of any modifications.''; and in Note 7, as redesignated by this
amendment, by striking ``subdivision'' and inserting ``subparagraph''
each place it appears.
Section 8C2.5(f)(3) is amended in subparagraph (A) by striking
``subdivision (B)'' and inserting ``subparagraphs (B) and (C)''; and by
adding at the end the following:
``(C) Subparagraphs (A) and (B) shall not apply if--
(i) The individual or individuals with operational
responsibility for the compliance and ethics program (see Sec.
8B2.1(b)(2)(C)) have direct reporting obligations to the governing
authority or an appropriate subgroup thereof (e.g., an audit
committee of the board of directors);
(ii) The compliance and ethics program detected the offense
before discovery outside the organization or before such discovery
was reasonably likely;
(iii) The organization promptly reported the offense to
appropriate governmental authorities; and
(iv) No individual with operational responsibility for the
compliance and ethics program participated in, condoned, or was
willfully ignorant of the offense.''.
The Commentary to Sec. 8C2.5 captioned ``Application Notes'' is
amended in Note 10 in the second sentence by inserting ``or
(f)(3)(C)(iii)'' after ``subsection (f)(2)''; by redesignating Notes 11
through 14 as Notes 12 through 15, respectively; and by inserting after
Note 10 the following:
11. For purposes of subsection (f)(3)(C)(i), an individual has
`direct reporting obligations' to the governing authority or an
appropriate subgroup thereof if the individual has express authority
to communicate personally to the governing authority or appropriate
subgroup thereof (A) promptly on any matter involving criminal
conduct or potential criminal conduct, and (B) no less than annually
on the implementation and effectiveness of the compliance and ethics
program.
Section 8D1.4 is amended by striking subsections (b) and (c) and
inserting the following:
(b) If probation is imposed under Sec. 8D1.1, the following
conditions may be appropriate:
(1) The organization shall develop and submit to the court an
effective compliance and ethics program consistent with Sec. 8B2.1
(Effective Compliance and Ethics Program). The organization shall
include in its submission a schedule for implementation of the
compliance and ethics program.
(2) Upon approval by the court of a program referred to in
paragraph (1), the organization shall notify its employees and
shareholders of its criminal behavior and its program referred to in
paragraph (1). Such notice shall be in a form prescribed by the
court.
(3) The organization shall make periodic submissions to the
court or probation officer, at intervals specified by the court, (A)
reporting on the organization's financial condition and results of
business operations, and accounting for the disposition of all funds
received, and (B) reporting on the organization's progress in
implementing the program referred to in paragraph (1). Among other
things, reports under subparagraph (B) shall disclose any criminal
prosecution, civil litigation, or administrative proceeding
commenced against the organization, or any investigation or formal
inquiry by governmental authorities of which the organization
learned since its last report.
(4) The organization shall notify the court or probation officer
immediately upon learning of (A) any material adverse change in its
business or financial condition or prospects, or (B) the
commencement of any bankruptcy proceeding, major civil litigation,
criminal prosecution, or administrative proceeding against the
organization, or any investigation or formal inquiry by governmental
authorities regarding the organization.
(5) The organization shall submit to: (A) A reasonable number of
regular or unannounced examinations of its books and records at
appropriate business premises by the probation officer or experts
engaged by the court; and (B) interrogation of
[[Page 27395]]
knowledgeable individuals within the organization. Compensation to
and costs of any experts engaged by the court shall be paid by the
organization.
(6) The organization shall make periodic payments, as specified
by the court, in the following priority: (A) Restitution; (B) fine;
and (C) any other monetary sanction.''.
The Commentary to Sec. 8D1.4 captioned ``Application Note'' is
amended in Note 1 by striking ``(a)(3) through (6)''; and by striking
``(c)(3)'' and inserting ``(b)(3)''.
Reason for Amendment: This amendment makes several changes to
Chapter Eight of the Guidelines Manual regarding the sentencing of
organizations.
First, the amendment amends the Commentary to Sec. 8B2.1
(Effective Compliance and Ethics Program) by adding an application note
that clarifies the remediation efforts required to satisfy the seventh
minimal requirement for an effective compliance and ethics program
under subsection (b)(7). Subsection (b)(7) requires an organization,
after criminal conduct has been detected, to take reasonable steps (1)
to respond appropriately to the criminal conduct and (2) to prevent
further similar criminal conduct.
The new application note describes the two aspects of subsection
(b)(7). With respect to the first aspect, the application note provides
that the organization should take reasonable steps, as warranted under
the circumstances, to remedy the harm resulting from the criminal
conduct. The application note further provides that such steps may
include, where appropriate, providing restitution to identifiable
victims, other forms of remediation, and self-reporting and cooperation
with authorities. With respect to the second aspect, the application
note provides that an organization should assess the compliance and
ethics program and make modifications necessary to ensure the program
is effective. The application note further provides that such steps
should be consistent with Sec. 8B2.1(b)(5) and (c), which also require
assessment and modification of the program, and may include the use of
an outside professional advisor to ensure adequate assessment and
implementation of any modifications.
This application note was added in response to public comment and
testimony suggesting that further guidance regarding subsection (b)(7)
may encourage organizations to take reasonable steps upon discovery of
criminal conduct. The steps outlined by the application note are
consistent with factors considered by enforcement agencies in
evaluating organizational compliance and ethics practices.
Second, the amendment amends subsection (f) of Sec. 8C2.5
(Culpability Score) to create a limited exception to the general
prohibition against applying the 3-level decrease for having an
effective compliance and ethics program when an organization's high-
level or substantial authority personnel are involved in the offense.
Specifically, the amendment adds subsection (f)(3)(C), which allows an
organization to receive the decrease if the organization meets four
criteria: (1) The individual or individuals with operational
responsibility for the compliance and ethics program have direct
reporting obligations to the organization's governing authority or
appropriate subgroup thereof; (2) the compliance and ethics program
detected the offense before discovery outside the organization or
before such discovery was reasonably likely; (3) the organization
promptly reported the offense to the appropriate governmental
authorities; and (4) no individual with operational responsibility for
the compliance and ethics program participated in, condoned, or was
willfully ignorant of the offense.
The new subsection (f)(3)(C) responds to concerns expressed in
public comment and testimony that the general prohibition in Sec.
8C2.5(f)(3) operates too broadly and that internal and external
reporting of criminal conduct could be better encouraged by providing
an exception to that general prohibition in appropriate cases.
The amendment also adds an application note that describes the
``direct reporting obligations'' necessary to meet the first criterion
under Sec. 8C2.5(f)(3)(C). The application note provides that an
individual has ``direct reporting obligations'' if the individual has
express authority to communicate personally to the governing authority
``promptly on any matter involving criminal conduct or potential
criminal conduct'' and ``no less than annually on the implementation
and effectiveness of the compliance and ethics program''. The
application note responds to public comment and testimony regarding the
challenges operational compliance personnel may face when seeking to
report criminal conduct to the governing authority of an organization
and encourages compliance and ethics policies that provide operational
compliance personnel with access to the governing authority when
necessary.
Third, the amendment amends Sec. 8D1.4 (Recommended Conditions of
Probation--Organizations (Policy Statement)) to augment and simplify
the recommended conditions of probation for organizations. The
amendment removes the distinction between conditions of probation
imposed solely to enforce a monetary penalty and conditions of
probation imposed for any other reason so that all conditional
probation terms are available for consideration by the court in
determining an appropriate sentence.
Finally, the amendment makes technical and conforming changes to
various provisions in Chapter Eight.
8. Amendment: Section 2B1.1(c)(4) is amended by inserting ``or a
paleontological resource'' after ``resource''; and by inserting ``or
Paleontological Resources'' after ``Heritage Resources'' each place it
appears.
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is
amended in Note 1 by inserting after the paragraph that begins
```National cemetery' means'' the following:
`` `Paleontological resource' has the meaning given that term in
Application Note 1 of the Commentary to Sec. 2B1.5 (Theft of,
Damage to, or Destruction of, Cultural Heritage Resources or
Paleontological Resources; Unlawful Sale, Purchase, Exchange,
Transportation, or Receipt of Cultural Heritage Resources or
Paleontological Resources).''.
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is
amended in Note 14(A) by inserting ``and 18 U.S.C. 1348'' after ``7
U.S.C. 1 et seq.)''.
Section 2B1.5 is amended in the heading by inserting ``or
Paleontological Resources'' after ``Heritage Resources'' each place it
appears.
Section 2B1.5(b) is amended in each of paragraphs (1) and (2) by
inserting ``or paleontological resource'' after ``heritage resource'';
and in paragraph (5) by inserting ``or paleontological resources''
after ``heritage resources''.
The Commentary to Sec. 2B1.5 captioned ``Statutory Provisions'' is
amended by inserting ``470aaa-5,'' after ``16 U.S.C. Sec. Sec. ''.
The Commentary to Sec. 2B1.5 captioned ``Application Notes'' is
amended in Note 1 by redesignating subparagraphs (A) through (G) as (i)
through (vii), respectively; by striking `` `Cultural Heritage
Resource' Defined.--For purposes of this guideline, `cultural heritage
resource' means any of the following:'' and inserting: ``Definitions.--
For purposes of this guideline:
(A) `Cultural heritage resource' means any of the following:''; by
striking ``(A)'' before ``has the meaning'' and inserting ``(I)''; by
striking ``(B)'' before ``includes'' and inserting ``(II)''; and by
adding at the end the following:
[[Page 27396]]
``(B) `Paleontological resource' has the meaning given such term in
16 U.S.C. 470aaa.''.
The Commentary to Sec. 2B1.5 captioned ``Application Notes'' is
amended in Note 2 by striking ``Cultural Heritage'' both places it
appears; by striking ``cultural heritage'' each place it appears; and
by inserting ``, e.g.,'' after ``See'' each place it appears.
The Commentary to Sec. 2B1.5 captioned ``Application Notes'' is
amended in Note 5(B) by striking ``cultural heritage''; in Note 6(A) by
inserting ``or paleontological resources'' after ``resources'', and by
striking ``cultural heritage'' after ``involving a'' each place it
appears; in Note 8 by striking ``cultural heritage'' each place it
appears; and in Note 9 by inserting ``or paleontological resources''
after ``resources'' the first place it appears; and by inserting ``or
paleontological resources'' after ``resources)''.
Section 2D1.11(e) is amended in subdivisions (1)-(10) by inserting
the following list I chemicals in the appropriate place in alphabetical
order by subdivision as follows:
(1) ``1.3 KG or more of Iodine;'',
(2) ``At least 376.2 G but less than 1.3 KG of Iodine;'',
(3) ``At least 125.4 G but less than 376.2 G of Iodine;'',
(4) ``At least 87.8 G but less than 125.4 G of Iodine;'',
(5) ``At least 50.2 G but less than 87.8 G of Iodine;'',
(6) ``At least 12.5 G but less than 50.2 G of Iodine;'',
(7) ``At least 10 G but less than 12.5 G of Iodine;'',
(8) ``At least 7.5 G but less than 10 G of Iodine;'',
(9) ``At least 5 G but less than 7.5 G of Iodine;'',
(10) ``Less than 5 G of Iodine;''; and in subdivisions (2)-(10), in
list II chemicals, by striking the lines referenced to ``Iodine'',
including the period, and in the lines referenced to ``Toluene'' by
striking the semicolon and inserting a period.
Appendix A (Statutory Index) is amended by inserting after the line
referenced to 16 U.S.C. 413 the following: ``16 U.S.C. 470aaa-5 2B1.1,
2B1.5''; and by inserting after the line referenced to 42 U.S.C.
1396h(b)(2) the following: ``42 U.S.C. 1396w-2 2H3.1''.
Reason for Amendment: This multi-part amendment responds to
miscellaneous issues arising from legislation recently enacted and
other miscellaneous guideline application issues.
First, the amendment responds to the Fraud Enforcement and Recovery
Act of 2009, Public Law 111-21, which broadened 18 U.S.C. 1348, a
securities fraud statute, to cover commodities fraud. Offenses under 18
U.S.C. 1348 are referenced in Appendix A (Statutory Index) to Sec.
2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses
Involving Stolen Property; Property Damage or Destruction; Fraud and
Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments
Other than Counterfeit Bearer Obligations of the United States).
Section 2B1.1 includes an enhancement at subsection (b)(17)(B) that
applies when specified persons who have fiduciary duties violate
commodities law. ``Commodities law'' is defined in Application Note 14
to mean the Commodities Exchange Act (7 U.S.C. 1 et seq.), including
the rules, regulations, and orders issued by the Commodity Futures
Trading Commission. The amendment adds 18 U.S.C. 1348 to the definition
of ``commodities law'' for purposes of subsection (b)(17)(B). The
Commission determined that including 18 U.S.C. 1348 within the scope of
subsection (b)(17)(B) is appropriate to reflect the expanded scope of
the statute.
Second, the amendment responds to the Omnibus Public Land
Management Act of 2009, Public Law 111-11, which created a new offense
at 16 U.S.C. 470aaa-5 making it unlawful to remove, damage, alter,
traffic in, or make a false record relating to a paleontological
resource on federal land. The amendment amends Appendix A (Statutory
Index) to refer offenses under 16 U.S.C. 470aaa-5 to 2B1.1 and 2B1.5
(Theft of, Damage to, or Destruction of, Cultural Heritage Resources;
Unlawful Sale, Purchase, Exchange, Transportation, or Receipt of
Cultural Heritage Resources) because such offenses are similar either
to offenses involving cultural heritage resources or, to the extent
they involve false records, to fraud offenses. The amendment also makes
technical and conforming changes to Sec. Sec. 2B1.1 and 2B1.5.
Third, the amendment responds to the Children's Health Insurance
Program Reauthorization Act of 2009, Public Law 111-3, which created a
new Class A misdemeanor offense at 42 U.S.C. 1396w-2 regarding the
unlawful disclosure of certain protected information related to social
security eligibility. The amendment amends Appendix A (Statutory Index)
to refer offenses under 42 U.S.C. 1396w-2 to Sec. 2H3.1 (Interception
of Communications; Eavesdropping; Disclosure of Certain Private or
Protected Information) because such offenses involve invasions of
privacy.
Fourth, the amendment responds to a regulatory change in which
iodine was upgraded from a List II chemical to a List I chemical.
Offenses involving listed chemicals are sentenced under Sec. 2D1.11
(Unlawfully Distributing, Importing, Exporting or Possessing a Listed
Chemical; Attempt or Conspiracy). Because the maximum base offense
level for List I chemicals (level 30) is higher than that for List II
chemicals (level 28), the amendment increases the maximum base offense
level for offenses involving iodine to level 30 and specifies the
amount of iodine needed (1.3 kilograms) for base offense level 30 to
apply.
9. Amendment: The Commentary to Sec. 1B1.3 captioned ``Application
Notes'' is amended in Note 2 in the second paragraph by striking
``(i)'' and inserting ``(A)''; and by striking ``(ii)'' and inserting
``(B)''; in Note 6, in the first paragraph by striking `` `is'' and
inserting `` `was''; and by striking ``was committed by the means set
forth in'' and inserting ``involved conduct described in''.
The Commentary to Sec. 1B1.8 captioned ``Application Notes'' is
amended in Note 2 by striking ``Probation Service'' and inserting
``probation office''.
The Commentary to Sec. 1B1.9 captioned ``Application Notes'' is
amended in Note 1 by inserting ``or for which no imprisonment is
authorized. See 18 U.S.C. 3559'' after ``not more than five days''.
The Commentary to Sec. 1B1.11 captioned ``Application Notes'' is
amended in Note 2 by striking ``Guideline'' and inserting
``Guidelines''.
The Commentary to Sec. 1B1.13 captioned ``Application Notes'' is
amended in Note 1 by striking ``Subsection'' and inserting
``Subdivision''.
The Commentary to Sec. 2A1.1 captioned ``Application Notes'' is
amended in Note 1 by inserting ``, see Sec. 2A4.1(c)(1)'' after
``occurs''; and by inserting ``, see Sec. 2E1.3(a)(2)'' after
``racketeering''.
The Commentary to Sec. 2A3.2 captioned ``Application Notes'' is
amended in Note 5 by striking ``kidnaping'' and inserting
``kidnapping'' each place it appears.
The Commentary to Sec. 2A3.3 captioned ``Application Notes'' is
amended in Note 1 by inserting ``years'' before ``; (B)''.
The Commentary to Sec. 2A3.5 captioned ``Application Notes'' is
amended in Note 1 by striking ``those terms in 42 U.S.C. 16911(2), (3)
and (4), respectively'' and inserting ``the terms `tier I sex
offender', `tier II sex offender', and `tier III sex offender',
respectively, in 42 U.S.C. 16911''.
The Commentary to Sec. 2B1.4 captioned ``Application Notes'' is
amended in Note 1 by striking ``Subsection of''.
[[Page 27397]]
The Commentary to Sec. 2B1.5 captioned ``Application Notes'' is
amended in Note 1 by striking ``299'' and inserting ``229''; and by
striking ``section 2(c) of Public Law 99-652 (40 U.S.C. 1002(c))'' and
inserting ``40 U.S.C. 8902(a)(1)''.
The Commentary to Sec. 2B3.1 captioned ``Application Notes'' is
amended in Note 2 by striking ``(d)'' and inserting ``(D)''.
The Commentary to Sec. 2B4.1 captioned ``Background'' is amended
in the fourth paragraph by striking ``was recently increased from two
to'' and inserting ``is''; and by striking ``Violations'' and all that
follows through ``to the Medicaid program.'' and inserting ``Violations
of 42 U.S.C. 1320a-7b involve the offer or acceptance of a payment to
refer an individual for services or items paid for under a federal
health care program (e.g., the Medicare and Medicaid programs).''.
The Commentary to Sec. 2B6.1 captioned ``Background'' is amended
by striking ``Sec. Sec. 511 and 553(a)(2)'' and inserting ``Sec.
511''; and by inserting ``Sec. 553(a)(2) and'' before ``2321''.
The Commentary to Sec. 2C1.1 captioned ``Application Notes'' is
amended in Note 3 by striking ``(A)'' after ``(b)(2)''.
The Commentary to Sec. 2C1.2 captioned ``Application Notes'' is
amended in Note 4 by striking ``or'' before ``Trust'' and inserting
``of''.
Section 2D1.1(c) is amended in each of Notes (H) and (I) to the
Drug Quantity Table by striking ``(25)'' and inserting ``(30)''.
The Commentary to Sec. 2D1.11 captioned ``Application Notes'' is
amended in Note 6 by striking ``or'' after ``1319(c),''; by striking
``Sec. 5124,''; and by inserting after ``9603(b)'' the following: ``,
and 49 U.S.C. 5124 (relating to violations of laws and regulations
enforced by the Department of Transportation with respect to the
transportation of hazardous material)''.
The Commentary to Sec. 2D1.12 captioned ``Application Notes'' is
amended in Note 3 by striking ``or'' after ``1319(c),''; by striking
``Sec. 5124,''; and by inserting after ``9603(b)'' the following: ``,
and 49 U.S.C. 5124 (relating to violations of laws and regulations
enforced by the Department of Transportation with respect to the
transportation of hazardous material)''.
Section 2D1.14(a)(1) is amended by striking ``(3)'' and inserting
``(5)'' both places it appears.
The Commentary to Sec. 2D2.1 captioned ``Background'' is amended
in the last paragraph by striking ``Section 6371 of the Anti-Drug Abuse
Act of 1988'' and inserting ``21 U.S.C. 844(a)'' both places it
appears.
The Commentary to Sec. 2G3.1 captioned ``Application Notes'' is
amended in Note 1 in the paragraph that begins `` `Distribution'
means'' by inserting ``transmission,'' after ``production,''.
Section 2H4.2(b)(1) is amended by striking ``(i)'' and inserting
``(A)''; and by striking ``(ii)'' and inserting ``(B)''.
The Commentary to Sec. 2K1.3 captioned ``Application Notes'' is
amended in Note 10 by striking ``(1)'' and inserting ``(A)''; by
striking ``(2)'' and inserting ``(B)''; by striking ``(3)'' and
inserting ``(C)''; and by striking ``(4)'' and inserting ``(D)''.
The Commentary to Sec. 2K2.1 captioned ``Application Notes'' is
amended in Note 2 by inserting ``That Is'' after ``Firearm''; and by
inserting ``that is'' after ``semiautomatic firearm''.
The Commentary to Sec. 2K2.1 captioned ``Application Notes'' is
amended in Note 10 in the first paragraph by striking ``; Sec. 4A1.2,
comment. (n.3)''; in Note 11 by striking ``(1)'' and inserting ``(A)'';
by striking ``(2)'' and inserting ``(B)''; by striking ``(3)'' and
inserting ``(C)''; and by striking ``(4)'' and inserting ``(D)''.
The Commentary to Sec. 2K2.5 captioned ``Application Notes'' is
amended in Note 2 by striking ``(f)'' and inserting ``(g)''; and in
Note 3 by inserting ``See 18 U.S.C. 924(a)(4).'' after ``other
offense.''.
The Commentary to Sec. 2L2.1 captioned ``Statutory Provisions'' is
amended by striking ``(b),'' after ``1325''; and by inserting ``, (d)''
after ``(c)''.
The Commentary to Sec. 2L2.2 captioned ``Statutory Provisions'' is
amended by striking ``(b),'' after ``1325''; and by inserting ``, (d)''
after ``(c)''.
The Commentary to Sec. 2M3.1 captioned ``Application Notes'' is
amended in Note 1 by striking ``12356'' and inserting ``12958 (50
U.S.C. 435 note)''.
The Commentary to Sec. 2M3.3 captioned ``Statutory Provisions'' is
amended by striking ``(b), (c)''.
The Commentary to Sec. 2M3.9 captioned ``Application Notes'' is
amended in Note 3 by inserting ``See 50 U.S.C. 421(d).'' after
``imprisonment.''.
The Commentary to Sec. 2M6.1 captioned ``Application Notes'' is
amended in Note 1 in the paragraph that begins `` `Foreign terrorist''
by striking ``1219'' and inserting ``1189''; and in the paragraph that
begins `` `Restricted person'' by striking ``(b)'' and inserting
``(d)''.
The Commentary to Sec. 2Q1.2 captioned ``Background'' is amended
by striking ``last two'' and inserting ``fifth and sixth''.
Section 2Q1.6(a)(1) is amended by striking ``Substance'' and
inserting ``Substances''.
The Commentary to Sec. 2Q2.1 captioned ``Application Notes'' is
amended in Note 3 by inserting ``, Subtitle B,'' after ``7 CFR''.
Chapter Two, Part T, Subpart 2, is amended in the Introductory
Commentary by striking ``section'' and inserting ``subpart''; and by
inserting ``of Chapter 51 of Subtitle E'' after ``Subchapter J''.
The Commentary to Sec. 2X5.2 captioned ``Statutory Provisions'' is
amended by striking ``Sec. 1129(a),''.
The Commentary to Sec. 3C1.1 captioned ``Application Notes'' is
amended in Note 4 by redesignating subdivisions (a) through (k) as (A)
through (K); and in Note 5 by redesignating subdivisions (a) through
(e) as (A) through (E).
The Commentary to Sec. 3E1.1 captioned ``Application Notes'' is
amended in Note 1 by redesignating subdivisions (a) through (h) as (A)
through (H).
Section 5K2.17 is amended by striking ``(A)'' and inserting
``(1)''; and by striking ``(B)'' and inserting ``(2)''.
Appendix A (Statutory Index) is amended in the line referenced to 7
U.S.C. 13(f) by striking ``(f)'' and inserting ``(e)''; in the line
referenced to 8 U.S.C. 1325(b) by striking ``(b)'' and inserting
``(c)''; in the line referenced to 8 U.S.C. 1325(c) by striking ``(c)''
and inserting ``(d)''; by inserting after the line referenced to 18
U.S.C. 247 the following: ``18 U.S.C. 248 2H1.1''; by striking the line
referenced to 18 U.S.C. 1129(a); by inserting after the line referenced
to 42 U.S.C. 1320a-7b the following: ``42 U.S.C. 1320a-8b 2X5.1,
2X5.2''; in the line referenced to 50 U.S.C. 783(b) by striking
``(b)''; and by striking the line referenced to 50 U.S.C. 783(c).
Reason for Amendment: This two-part amendment makes various
technical and conforming changes to the guidelines.
First, the amendment makes changes to the Guidelines Manual to
promote accuracy and completeness. For example, it corrects
typographical errors, and it addresses cases in which the Guidelines
Manual provides information (such as a reference to a guideline,
statute, or regulation) that has become incorrect or obsolete.
Specifically, it amends:
(1) Sec. 1B1.3 (Relevant Conduct), Application Note 6, to ensure
that two quotations contained in that note are accurate;
(2) Sec. 1B1.8 (Use of Certain Information), Application Note 2,
to revise a reference to the ``Probation Service'';
(3) Sec. 1B1.9 (Class B or C Misdemeanors and Infractions),
Application Note 1, to reflect that some infractions do not have any
authorized term of imprisonment;
(4) Sec. 1B1.11 (Use of Guidelines Manual in Effect on Date of
Sentencing),
[[Page 27398]]
Application Note 2, to correct a typographical error;
(5) Sec. 2A1.1 (First Degree Murder), Application Note 1, to
provide specific citations for the examples given;
(6) Sec. 2A3.2 (Criminal Sexual Abuse of a Minor Under the Age of
Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts),
Application Note 5, to correct typographical errors;
(7) Sec. 2A3.3 (Criminal Sexual Abuse of a Ward or Attempt to
Commit Such Acts), Application Note 1, to correct a typographical
error;
(8) Sec. 2A3.5 (Failure to Register as a Sex Offender),
Application Note 1, to ensure that the statutory definitions referred
to in that note are accurately cited;
(9) Sec. 2B1.4 (Insider Trading), Application Note 1, to correct a
typographical error;
(10) Sec. 2B1.5 (Theft of, Damage to, or Destruction of, Cultural
Heritage Resources), Application Note 1, to provide updated citations
to statutes and regulations;
(11) Sec. 2B3.1 (Robbery), Application Note 2, to correct a
typographical error;
(12) Sec. 2B4.1 (Bribery in Procurement of Bank Loan and Other
Commercial Bribery), Background, to provide an updated description and
reference to the statute criminalizing bribery in connection with
Medicare and Medicaid referrals;
(13) Sec. 2B6.1 (Altering or Removing Motor Vehicle Identification
Numbers), Background, to update the statutory maximum term of
imprisonment for violations of 18 U.S.C. 553(a)(2);
(14) Sec. 2C1.1 (Offering, Giving, Soliciting, or Receiving a
Bribe), Application Note 3, to ensure that the subsection relating to
``loss'' is accurately cited;
(15) Sec. 2C1.2 (Offering, Giving, Soliciting, or Receiving a
Gratuity), Application Note 4, to correct a typographical error;
(16) Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or
Trafficking), in the Notes to the Drug Quantity Table, to provide
updated citations to regulations;
(17) both Sec. 2D1.11 (Unlawfully Distributing, Importing,
Exporting or Possessing a Listed Chemical), Application Note 6, and
Sec. 2D1.12 (Unlawful Possession, Manufacture, Distribution,
Transportation, Exportation, or Importation of Prohibited Flask,
Equipment, Chemical, Product, or Material), Application Note 3, to
provide a more accurate statutory citation and description;
(18) Sec. 2D1.14 (Narco-Terrorism), subsection (a)(1), to provide
an updated guideline reference;
(19) Sec. 2D2.1 (Unlawful Possession), Commentary, to provide
updated statutory references;
(20) Sec. 2G3.1 (Importing, Mailing, or Transporting Obscene
Matter), Application Note 1, to make the definition of ``distribution''
in that guideline consistent with the definition of ``distribution'' in
the child pornography guidelines;
(21) Sec. 2K2.1 (Unlawful Receipt, Possession, or Transportation
of Firearms or Ammunition), Application Notes 2 and 10, to ensure that
a quotation contained in Note 2 is accurate and that a citation in Note
10 is accurate;
(22) Sec. 2K2.5 (Possession of Firearm or Dangerous Weapon in
Federal Facility; Possession or Discharge of Firearm in School Zone),
Application Notes 2 and 3, to provide updated statutory references;
(23) both Sec. 2L2.1 (Trafficking in a Document Relating to
Naturalization, Citizenship, or Legal Resident Status, or a United
States Passport), Statutory Provisions, and Sec. 2L2.2 (Fraudulently
Acquiring Documents Relating to Naturalization, Citizenship, or Legal
Resident Status for Own Use), Statutory Provisions, to provide updated
statutory references;
(24) Sec. 2M3.1 (Gathering or Transmitting National Defense
Information to Aid a Foreign Government), Application Note 1, to
provide an updated reference to an executive order;
(25) Sec. 2M3.3 (Transmitting National Defense Information), to
provide an updated statutory reference;
(26) Sec. 2M3.9 (Disclosure of Information Identifying a Covert
Agent), Application Note 3, to provide an updated statutory reference;
(27) Sec. 2M6.1 (Unlawful Activity Involving Nuclear Material,
Weapons, or Facilities, Biological Agents, Toxins, or Delivery Systems,
Chemical Weapons, or Other Weapons of Mass Destruction), Application
Note 1, to provide updated statutory references;
(28) Sec. 2Q1.2 (Mishandling of Hazardous or Toxic Substances or
Pesticides), Background, to provide updated guideline references;
(29) Sec. 2Q1.6 (Hazardous or Injurious Devices on Federal Lands),
subsection (a)(1), to correct a typographical error;
(30) Sec. 2Q2.1 (Offenses Involving Fish, Wildlife, and Plants),
Application Note 3, to provide a more complete reference to
regulations;
(31) Chapter Two, Part T, Subpart 2 (Alcohol and Tobacco Taxes),
Introductory Commentary, to provide a more complete statutory
reference;
(32) Sec. 2X5.2 (Class A Misdemeanors (Not Covered by Another
Specific Offense Guideline)), to strike an erroneous statutory
reference;
(33) Appendix A (Statutory Index), to provide updated statutory
references and strike an erroneous statutory reference.
Second, the amendment makes a series of changes to the Guidelines
Manual to promote stylistic consistency in how subdivisions are
designated. When dividing guideline sections into subdivisions, the
guidelines generally follow the structure used by Congress to divide
statutory sections into subdivisions. Thus, a section is broken into
subsections (starting with ``(a)''), which are broken into paragraphs
(starting with ``(1)''), which are broken into subparagraphs (starting
with ``(A)''), which are broken into clauses (starting with ``(i)''),
which are broken into subclauses (starting with ``(I)''). For a generic
term, ``subdivision'' is also used. When dividing application notes
into subdivisions, the guidelines generally follow the same structure,
except that subsections and paragraphs are not used; the first
subdivisions used are subparagraphs (starting with ``(A)''). The
amendment identifies places in the Guidelines Manual where these
principles are not followed and brings them into conformity.
[FR Doc. 2010-11552 Filed 5-13-10; 8:45 am]
BILLING CODE P