[Federal Register Volume 75, Number 13 (Thursday, January 21, 2010)]
[Notices]
[Pages 3525-3539]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-970]
=======================================================================
-----------------------------------------------------------------------
UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice of proposed amendments to sentencing guidelines, policy
statements, and commentary. Request for public comment, including
public comment regarding retroactive application of any of the proposed
amendments. Notice of public hearing.
-----------------------------------------------------------------------
SUMMARY: Pursuant to section 994(a), (o), and (p) of title 28, United
States Code, the United States Sentencing Commission is considering
promulgating certain amendments to the sentencing guidelines, policy
statements, and commentary. This notice sets forth the proposed
amendments and, for each proposed amendment, a synopsis of the issues
addressed by that amendment. This notice also sets forth a number of
issues for comment, some of which are set forth together with the
proposed amendments; some of which are set forth independent of any
proposed amendment; and one of which (regarding retroactive application
of proposed amendments) is set forth in the Supplementary Information
portion of this notice.
The proposed amendments and issues for comment in this notice are
as follows: (1) A proposed amendment on alternatives to incarceration,
including a proposed new guideline that would provide authority under
the guidelines to impose an alternative to incarceration for drug
offenders who need treatment for drug addiction and who meet certain
criteria, and proposed changes to the Sentencing Table in Chapter Five
that would expand Zones B and C by one level in each criminal history
category, and related issues for comment on alternatives to
incarceration; (2) issues for comment on the extent to which specific
offender characteristics should be considered at sentencing generally
and in the Guidelines Manual in particular, including issues for
comment on age; mental and emotional condition; physical condition;
military service, public service, and good works; and lack of guidance
as a youth, and issues for comment on when, if at all, a downward
departure may be appropriate based on the collateral consequences of a
defendant's status as a non-citizen, or based on cultural assimilation;
(3) a proposed amendment to Sec. 1B1.1 (Application Instructions) in
light of United States v. Booker, 543 U.S. 220 (2005); (4) a proposed
amendment on the computation of criminal history points under
subsection (e) of Sec. 4A1.1 (Criminal History Category), known as the
``recency'' provision, including proposed changes to Sec. 4A1.1 to
reduce the cumulative impact of ``recency'', and issues for comment on
whether the Commission should instead address the cumulative impact of
``recency'' only for one or more specific Chapter Two offense
guidelines; (5) a proposed amendment in response to the Matthew
Shephard and James Byrd, Jr. Hate Crime Prevention Act, division E of
Public Law 111-84, including proposed changes to Sec. 3A1.1 (Hate
Crime Motivation or Vulnerable Victim); (6) a proposed amendment to
Chapter Eight of the Guidelines Manual regarding the sentencing of
organizations, including proposed changes to Sec. 8B2.1 (Effective
Compliance and Ethics Program) and Sec. 8D1.4 (Recommended Conditions
of Probation--Organizations), and a related issue for comment; (7) a
proposed amendment in response to miscellaneous issues arising from
legislation recently enacted and other miscellaneous guideline
application issues, including proposed changes to the guidelines'
treatment of offenses involving commodities fraud, paleontological
resources, unauthorized disclosures of personal information regarding
health insurance eligibility, and iodine; and (8) a proposed amendment
in response to certain technical issues that have arisen in the
guidelines.
DATES: (1) Written Public Comment.--Written public comment regarding
the proposed amendments and issues for comment set forth in this
notice, including public comment regarding retroactive application of
any of the proposed amendments, should be received by the Commission
not later than March 22, 2010.
(2) Public Hearing.--The Commission plans to hold a public hearing
regarding the proposed amendments and issues for comment set forth in
this notice. Further information regarding the public hearing,
including requirements for testifying and providing written testimony,
as well as the location, time, and scope of the hearing, will be
provided by the Commission on its Web site at http://www.ussc.gov.
ADDRESSES: Public comment should be sent to: United States Sentencing
Commission, One Columbus Circle, NE., Suite 2-500, Washington, DC
20002-8002, Attention: Public Affairs.
FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs
Officer, Telephone: (202) 502-4597.
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 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 submits guideline
amendments to the Congress not later than the first day of May each
year pursuant to 28 U.S.C. 994(p).
The proposed amendments in this notice are presented in one of two
formats. First, some of the amendments are proposed as specific
revisions to a guideline or commentary. Bracketed text within a
proposed amendment indicates a heightened interest on the
[[Page 3526]]
Commission's part in comment and suggestions regarding alternative
policy choices; for example, a proposed enhancement of [2][4][6] levels
indicates that the Commission is considering, and invites comment on,
alternative policy choices regarding the appropriate level of
enhancement. Similarly, bracketed text within a specific offense
characteristic or application note means that the Commission
specifically invites comment on whether the proposed provision is
appropriate. Second, the Commission has highlighted certain issues for
comment and invites suggestions on how the Commission should respond to
those issues.
The Commission also requests public comment regarding whether the
Commission should specify for retroactive application to previously
sentenced defendants any of the proposed amendments published in this
notice. The Commission requests comment regarding which, if any, of the
proposed amendments that may result in a lower guideline range should
be made retroactive to previously sentenced defendants pursuant to
Sec. 1B1.10 (Reduction in Term of Imprisonment as a Result of Amended
Guideline Range).
Additional information pertaining to the proposed amendments
described in this notice may be accessed through the Commission's Web
site at http://www.ussc.gov.
Authority: 28 U.S.C. 994(a), (o), (p), (x); USSC Rules of
Practice and Procedure, Rule 4.4.
William K. Sessions III,
Chair.
1. Alternatives to Incarceration
Synopsis of Proposed Amendment: In September 2009, the Commission
indicated that one of its policy priorities would be continued study of
alternatives to incarceration, including consideration of any potential
changes to the zones incorporated in the Sentencing Table in Chapter
Five and/or other changes to the guidelines that might be appropriate
in light of the information obtained from that study. See 74 FR 46478,
46479 (September 9, 2009). The Commission is publishing this proposed
amendment to inform the Commission's consideration of alternatives to
incarceration.
The proposed amendment contains two parts (A and B). The Commission
is considering whether to promulgate either or both of these parts, as
they are not necessarily mutually exclusive.
Part A expands the authority of the court to impose an alternative
to incarceration for drug offenders who need treatment for drug
addiction and who meet certain criteria. This part does so by creating
a new guideline, Sec. 5C1.3, that provides the court with authority
under the guidelines to impose a sentence of probation (with a
requirement that the offender participate in a [residential] treatment
program) rather than a sentence of imprisonment, without regard to the
applicable Zone of the Sentencing Table. To use this authority, the
court must find that the drug offender has demonstrated a willingness
to participate in a substance abuse treatment program and [will likely
benefit from such a program][that participation in such a program will
likely address the defendant's need for substance abuse treatment], and
the court must impose a condition of probation that requires the
defendant to participate in a [residential] substance abuse treatment
program. To be eligible for this alternative to incarceration, a drug
offender must have committed the offense while addicted to a controlled
substance[, and the controlled substance addiction must have
contributed substantially to the commission of the offense]. Also, the
drug offender's total offense level must be not greater than [11]-[16].
Finally, the drug offender must meet the ``safety valve'' criteria set
forth in Sec. 5C1.2 (Limitation on Applicability of Statutory Minimum
Sentences in Certain Cases).
Part A also makes conforming changes to Sec. 5B1.1 (Imposition of
a Term of Probation) and Sec. 5C1.1 (Imposition of a Term of
Imprisonment).
Part B expands Zones B and C in the Sentencing Table in Chapter
Five. Specifically, it expands Zone B by one level in each of Criminal
History Categories I through VI (taking this area from Zone C), and
expands Zone C by one level in each of Criminal History Categories I
through VI (taking this area from Zone D). Part B also provides
guidance on the effectiveness of residential treatment programs.
Finally, Part B makes conforming changes to Sec. Sec. 5B1.1 and 5C1.1.
Issues for comment are also included.
Proposed Amendment
Part A:
Chapter Five, Part C is amended by adding at the end the following
new guideline:
``Sec. 5C1.3. Substance Abuse Treatment Program as Alternative to
Incarceration for Certain Drug Offenders
(a) Subject to subsection (b), in the case of an offense under 21
U.S.C. 841, 844, 846, 960, or 963, the court may sentence the defendant
to a term of probation without regard to the applicable Zone of the
Sentencing Table, if the court finds that the defendant meets the
criteria set forth below:
(1) The defendant committed the offense while addicted to a
controlled substance[, and the controlled substance addiction
contributed substantially to the commission of the offense];
(2) The defendant has demonstrated a willingness to participate in
a substance abuse treatment program, and [will likely benefit from such
a program][participation in such a program will likely address the
defendant's need for substance abuse treatment];
(3) The total offense level for purposes of the Sentencing Table in
Chapter Five, Part A, is not greater than [11]-[16];
(4) Each of the criteria set forth in Sec. 5C1.2 (Limitation on
Applicability of Statutory Minimum Sentences in Certain Cases).
(b) If the court imposes probation under subsection (a), the court
must include a condition that requires the defendant to participate in
a [residential] substance abuse treatment program.''.
Section 5B1.1(a) is amended in paragraph (2) by striking the period
at the end and inserting ``; or''; and by adding at the end the
following:
``(3) Sec. 5C1.3 applies.''.
The Commentary to Sec. 5B1.1 captioned ``Application Notes'' is
amended in Note 1 by adding at the end the following:
``(c) Where Sec. 5C1.3 applies. See Sec. 5C1.3.'';
And in Note 2 by inserting ``, except as provided in Sec. 5C1.3''
after ``probation''.
Section 5C1.1 is amended by adding at the end the following:
``(g) Notwithstanding subsections (a)-(f), a sentence of
imprisonment is not required if Sec. 5C1.3 applies.''.
The Commentary to Sec. 5C1.1 captioned ``Application Notes'' is
amended by adding at the end the following:
``9. Subsection (g) provides that, notwithstanding subsections (a)
through (f), a sentence of imprisonment is not required if Sec. 5C1.3
applies.''.
Part B:
The Sentencing Table in Chapter Five, Part A, is amended--
(1) By increasing Zone B by one level in each of Criminal History
Categories I through VI (so that Zone B contains offense levels 9-11 in
Criminal History Category I; 6-10 in Criminal History Category II; 5-9
in Criminal History Category III; 4-7 in Criminal History Category IV;
3-6 in Criminal History
[[Page 3527]]
Category V; and 2-5 in Criminal History Category VI), and,
correspondingly, by removing each such offense level from Zone C; and
(2) By increasing Zone C by one level in each of Criminal History
Categories I through VI (so that Zone C contains offense levels 12-13
in Criminal History Category I; 11-12 in Criminal History Category II;
10-11 in Criminal History Category III; 8-9 in Criminal History
Category IV; 7 in Criminal History Category V; and 6 in Criminal
History Category VI).
For an illustration of the proposed amendment to the Sentencing
Table, as executed, see table. The existing boundaries of Zones B and C
are marked with straight lines; the new proposed lower boundary of Zone
B is shaded; and the new proposed lower boundary of Zone C is marked
with a wavy line.
BILLING CODE 2210-40-P
[[Page 3528]]
[GRAPHIC] [TIFF OMITTED] TN21JA10.000
BILLING CODE 2210-40-C
The Commentary to Sec. 5B1.1 captioned ``Application Notes'' is
amended in Note 1(b) by striking ``six'' and inserting
[[Page 3529]]
``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 by striking ``six'' after ``not more than'' and
inserting ``nine''; and in Note 4 by striking ``eight, nine, or ten
months'' and inserting ``ten or twelve months''; by striking ``8-14''
both places it appears and inserting ``10-16''; by striking ``sentence
of four'' both places it appears and inserting ``sentence of five'';
and by striking ``five'' after ``and a sentence of'' and inserting
``ten''; and by redesignating Notes 6, 7, and 8 as Notes 7, 8, and 9,
respectively; and by inserting after Note 5 the following:
``6. There may be cases in which community confinement in a
residential treatment program is warranted to accomplish a specific
treatment purpose. In such a case, the court should consider the
effectiveness of the residential treatment program.
An effective program should possess, at a minimum, the following
features:
(A) The program is licensed, certified, accredited, or otherwise
approved by the relevant state regulatory agency.
(B) The program is operated by professionals who are well trained,
qualified, and experienced in the evaluation and treatment of
participants and who follow established ethical and professional
standards.
(C) The evaluation and treatment of participants is based on ``the
best available scientific knowledge.''; and in Note 9 (as so
redesignated) by striking ``twelve'' and inserting ``15''.
Issues for Comment
1. The Commission requests comment on how Part A of the proposed
amendment should interact with other provisions in the Guidelines
Manual. In particular, if the Commission were to promulgate Part A,
what other amendments to Chapter Five of the Guidelines Manual would be
appropriate?
For example, Sec. 5H1.4 (Physical Condition, Including Drug or
Alcohol Dependence or Abuse; Gambling Addiction) currently provides,
among other things, that physical condition ``is not ordinarily
relevant in determining whether a departure is warranted'' and that
``drug or alcohol dependence or abuse is not a reason for a downward
departure''. If the Commission were to promulgate Part A, what changes,
if any, should the Commission make to Sec. 5H1.4?
2. The Commission requests comment on whether defendants with a
condition other than drug addiction, such as a mental or emotional
condition, should be eligible for treatment programs as an alternative
to incarceration.
3. The Commission requests comment on whether the proposed
amendment should include standards for effective treatment programs.
The Commission has provided standards for other types of programs; for
example, Sec. 8B2.1 (Effective Compliance and Ethics Program))
provides minimum requirements for corporate compliance and ethics
programs. Should the Commission similarly provide standards for
effective treatment programs? If so, what standards should the
Commission provide?
4. The Commission requests comment on whether the Zone changes
contemplated by Part B of the proposed amendment should apply to all
offenses, or only to certain categories of offenses. The Zone changes
would increase the number of offenders who are eligible under the
guidelines to receive a non-incarceration sentence. Should the
Commission provide a mechanism to exempt certain offenses from these
zone changes? For example, should the Commission provide a mechanism to
exempt public corruption, tax, and other white-collar offenses from
these zone changes (e.g., to reflect a view that it would not be
appropriate to increase the number of public corruption, tax, and other
white-collar offenders who are eligible to receive a non-incarceration
sentence)? If so, what mechanism should the Commission provide, and
what offenses should be covered by it?
5. The Commission requests comment on what revisions to Chapter
Five, Part B (Probation), and Chapter Five, Part F (Sentencing
Options), may be appropriate to provide more guidance on the use of
alternatives to incarceration.
As explained in the Introductory Commentary to Chapter Five, Part
B, ``probation is a sentence in and of itself'', and may be used as an
alternative to incarceration, ``provided that the terms and conditions
of probation can be fashioned so as to meet fully the statutory
purposes of sentencing, including respect for law, providing just
punishment for the offense, achieving general deterrence, and
protecting the public from further crimes by the defendant''.
Are there changes the Commission should make to the guidelines to
guide courts in fashioning sentences that meet the statutory purposes
of sentencing, see 18 U.S.C. 3553(a)(2), and to better implement the
requirements of 28 U.S.C. 994(j) (requiring the Commission to ensure
that ``the guidelines reflect the general appropriateness of imposing a
sentence other than imprisonment in cases in which the defendant is a
first offender who has not been convicted of a crime of violence or an
otherwise serious offense'')?
In particular, should the Commission make changes to Chapter Five,
Parts B and F, to more broadly encourage the use of alternatives to
incarceration, such as community confinement, home detention, and
intermittent confinement (see Sec. Sec. 5F1.1 (Community Confinement),
5F1.2 (Home Detention), and 5F1.8 (Intermittent Confinement))? If so,
what changes should the Commission make?
Should the Commission make changes to Chapter Five, Parts B and F,
to provide more guidance to the court in deciding whether to impose an
alternative to incarceration in a particular case and, if so, in
deciding what specific alternative to incarceration should be imposed?
For example, what guidance should the Commission provide with regard to
how the court should decide among sentencing a particular defendant to
imprisonment, intermittent confinement, community confinement, or home
detention?
2. Specific Offender Characteristics
Issues for Comment
1. In September 2009, the Commission indicated that one of its
policy priorities would be a ``review of departures within the
guidelines, including (A) a review of the extent to which pertinent
statutory provisions prohibit, discourage, or encourage certain factors
as forming the basis for departure from the guideline sentence; and (B)
possible revisions to the departure provisions in the Guidelines
Manual.'' See 74 FR 46478, 46479 (September 9, 2009).
The Sentencing Reform Act (the ``Act'') contained several
provisions regarding the relevance of specific offender characteristics
to sentencing:
First, 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 incidents 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).
Second, 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
[[Page 3530]]
skills; employment record; family ties and responsibilities; and
community ties. See 28 U.S.C. 994(e).
Third, the Act directs the Commission to ensure that the guidelines
and policy statements ``are entirely neutral'' as to five other
characteristics--race, sex, national origin, creed, and socioeconomic
status. See 28 U.S.C. 994(d).
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).
As part of its review of departures, the Commission is reviewing
the relevance of specific offender characteristics to sentencing. The
Commission contemplates that work on this priority will continue beyond
the amendment cycle ending May 1, 2010. During the amendment cycle
ending May 1, 2010, the Commission is focusing on specific offender
characteristics addressed in Chapter Five, Part H, of the Guidelines
Manual that are not listed in 28 U.S.C. 994(e).
The Commission requests comment on the extent to which specific
offender characteristics should be considered at sentencing generally
and in the Guidelines Manual in particular. The Commission has received
some public comment suggesting that, in light of United States v.
Booker, 543 U.S. 220 (2005), the Commission amend the Guidelines Manual
to eliminate provisions regarding specific offender characteristics,
which are addressed in the Guidelines Manual primarily through the
policy statements in Chapter Five, Part H. Eliminating Chapter Five,
Part H, however, would contravene the mandates to the Commission in the
Act.
Are specific offender characteristics already adequately addressed
in the Guidelines Manual? If not, how should the Commission amend the
Guidelines Manual to more adequately address specific offender
characteristics?
2. The Commission requests comment regarding five specific offender
characteristics in particular. Those characteristics, and the statutes
and policy statements currently addressing those characteristics, are
as follows:
(1) Age (28 U.S.C. 994(d)(1)), see Sec. 5H1.1 (Age).
(2) Mental and emotional condition to the extent that such
condition mitigates the defendant's culpability or to the extent that
such condition is otherwise plainly relevant (28 U.S.C. 994(d)(4)), see
Sec. 5H1.3 (Mental and Emotional Conditions).
(3) Physical condition, including drug dependence (28 U.S.C.
994(d)(5)), see Sec. 5H1.4 (Physical Condition, Including Drug or
Alcohol Dependence or Abuse; Gambling Addiction).
(4) Military, civic, charitable, or public service, employment-
related contributions, record of prior good works, see Sec. 5H1.11
(Military, Civic, Charitable, or Public Service; Employment-Related
Contributions; Record of Prior Good Works).
(5) Lack of guidance as a youth, see Sec. 5H1.12 (Lack of Guidance
as a Youth and Similar Circumstances).
A. In General
Are the guidelines adequate as they apply to these five specific
offender characteristics? If not, what amendments to the guidelines
should be made to address these specific offender characteristics?
B. Relevance to Decisions Regarding Prison and Probation
For each of these five specific offender characteristics, the
Commission requests comment regarding whether, and to what extent, the
characteristic is relevant to decisions regarding prison and probation.
In particular:
(1) Is the characteristic relevant in making the ``in/out''
decision, i.e., the decision whether to sentence the defendant to
prison or probation?
(2) Assuming the defendant is to be sentenced to prison, is the
characteristic relevant in deciding the length of imprisonment?
(3) Assuming the defendant is to be sentenced to probation, is the
characteristic relevant in deciding the length of probation, or the
conditions of probation?
For each of the decisions identified in (1), (2), and (3) above, if
the characteristic is relevant in making the decision, when is it
relevant, why is it relevant, what effect should it have, and how much
effect should it have? Are there categories of offenses, or categories
of offenders, for which the characteristic should be more relevant, or
less relevant? What criteria should be used to establish such
categories?
C. Use as Proxy for Forbidden Factors
As stated above, the Act specified that the guidelines and policy
statements must be ``entirely neutral'' as to race, sex, national
origin, creed, and socioeconomic status; these characteristics are
known as the ``forbidden'' factors. See 28 U.S.C. 994(d).
For each of these five specific offender characteristics, could the
characteristic be used as a proxy for one or more of the ``forbidden''
factors? If so, how should the Commission address that possibility,
while at the same time providing for consideration of the
characteristic when relevant?
3. The Commission also has separate requests for comment for each
of these five specific offender characteristics. The separate requests
are as follows:
A. Age
Section 5H1.1 (Age) generally provides that age (including youth)
is not ordinarily relevant in determining whether a departure is
warranted. Should the Commission revise this policy statement? If so,
how?
For example, should an offender's youth be a reason to decrease the
sentence to reflect a view that younger offenders are less accountable
for their actions, or a reason to increase the sentence to reflect a
view that younger offenders are more likely to recidivate? Should an
offender's advanced age be a reason to increase the sentence to reflect
a view that older offenders should be more mature and responsible, or a
reason to decrease the sentence to reflect a view that older offenders
are less likely to recidivate?
B. Mental and Emotional Conditions
Section 5H1.3 (Mental and Emotional Conditions) generally provides
that mental and emotional conditions are not ordinarily relevant in
determining whether a departure is warranted. Should the Commission
revise this policy statement? If so, how?
For example, should a mental or emotional condition be a reason to
increase the sentence (e.g., if the mental or emotional condition, such
as an antisocial personality disorder, makes the defendant a particular
danger to the community)? On the other hand, should a mental or
emotional condition be a reason to decrease the sentence (e.g., if the
mental or emotional condition could more effectively be treated outside
of prison)?
In a case in which the defendant's mental or emotional condition
was a factor in the commission of the offense, how should mental or
emotional condition interact with the policy statements regarding
diminished capacity, see Sec. 5K2.13 (Diminished Capacity), and
coercion and duress, see Sec. 5K2.12 (Coercion and Duress)? In
particular, in a case in which the defendant's mental or emotional
condition was a factor in the commission of the offense, but does not
meet the requirements of Sec. 5K2.13 and Sec. 5K2.12, when, if at
all, should the
[[Page 3531]]
mental or emotional condition be a reason for a departure?
The Commission has heard testimony that service members have been
returning from combat with traumatic brain injuries that cause them to
act out violently toward family members and others, or have been
returning with other mental or emotional conditions (such as post-
traumatic stress disorder). If such a service member commits a crime,
when, and to what extent, would a departure be warranted?
C. Physical Condition (Including Drug or Alcohol Dependence or Abuse;
Gambling Addiction)
Section 5H1.4 (Physical Condition, Including Drug or Alcohol
Dependence or Abuse; Gambling Addiction) generally provides that
physical condition or appearance, including physique, is not ordinarily
relevant in determining whether a departure may be warranted. Should
the Commission revise this policy statement? If so, how?
For example, should a physical condition or addiction be a reason
to decrease the sentence (e.g., if the physical condition or addiction
could more effectively be treated outside of prison or if the physical
condition renders the offender so infirm that home confinement may be
sufficient)? Conversely, should a physical condition or addiction be a
reason to increase the sentence (e.g., if the addiction increases the
risk of recidivism)?
D. Military, Civic, Charitable, or Public Service; Employment-Related
Contributions; Record of Prior Good Works
Section 5H1.11 (Military, Civic, Charitable, or Public Service;
Employment-Related Contributions; Record of Prior Good Works) provides
that military, civic, charitable, or public service; employment-related
contributions; and similar prior good works are not ordinarily relevant
in determining whether a departure is warranted. Should the Commission
revise this policy statement? If so, how?
For example, should military service be a reason to decrease the
sentence (e.g., to reflect a view that an exemplary military record
reflects courage, loyalty, and personal sacrifice that a sentencing
court should take into account)? Conversely, should military service be
a reason to increase the sentence (e.g., to reflect a view that the
offender is a role model who ``should have known better'')?
Similarly, should civic or charitable contributions be a reason to
decrease the sentence to reflect the view that credit should be given
for past good deeds or that past good deeds predict that the defendant
will continue to add value to the community when not in prison? If so,
what level of contributions should be demonstrated before a decrease in
sentence is warranted?
E. Lack of Guidance as a Youth and Similar Circumstances
Section 5H1.12 (Lack of Guidance as a Youth and Similar
Circumstances) provides that lack of guidance as a youth and similar
circumstances indicating a disadvantaged upbringing are not relevant
grounds in determining whether a departure is warranted. Should the
Commission revise this policy statement? If so, how?
For example, should lack of guidance as a youth not be a reason to
decrease the sentence (e.g., to reflect a view that many or most
offenders may be able to demonstrate some lack of guidance or
disadvantaged upbringing)? Should physical abuse, emotional abuse, or
sexual abuse suffered as a child be a reason to decrease the sentence
under this policy statement or elsewhere in Chapter Five, Part H?
3. The Commission requests comment regarding what, if any,
conforming changes should be made to Chapter Five, Part K, of the
Guidelines Manual, or elsewhere in the Guidelines Manual, if the
Commission were to amend the policy statements applicable to the five
specific offender characteristics discussed above.
4. The Commission requests comment on when, if at all, the
collateral consequences of a defendant's status as a non-citizen may
warrant a downward departure. There are differences among the circuits
on this issue. Compare, e.g., United States v. Restrepo, 999 F.2d 640,
644 (2d Cir. 1993) (holding that none of the following collateral
consequences are a basis for departure: (1) The fact that an alien is
not eligible to be imprisoned in a lower-security facility or to
participate in certain prison programs; (2) the fact that an alien will
face deportation upon release from prison; and (3) the fact that an
alien, upon release from prison, will be civilly detained until
deportation), with United States v. Smith, 27 F.3d 649, 655 (D.C. Cir.
1994) (``[A] downward departure may be appropriate where the
defendant's status as a deportable alien is likely to cause a
fortuitous increase in the severity of his sentence.'').
The circuits appear to be in agreement, however, that the
defendant's status as a non-citizen is never a proper basis for
departure when the defendant is sentenced under the illegal reentry
guideline, Sec. 2L1.2 (Unlawfully Entering or Remaining in the United
States). See, e.g., United States v. Martinez-Carillo, 250 F.3d 1101,
1107 (7th Cir. 2001); United States v. Garay, 235 F.3d 230, 234 (5th
Cir. 2000).
Should the Commission amend the guidelines to address when, if at
all, a downward departure may be warranted on the basis of such
collateral consequences? If so, how?
5. The Commission requests comment on when, if at all, a downward
departure may be appropriate in an illegal reentry case sentenced under
Sec. 2L1.2 on the basis of ``cultural assimilation'', that is, the
defendant's cultural ties to the United States. Several circuits have
held that such a departure may be warranted. See, e.g., United States
v. Lipman, 133 F.3d 726, 730 (9th Cir. 1998); 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). Other
circuits, such as the First and Tenth Circuits, have declined to rule
on whether such a departure may be warranted. See, e.g., United States
v. Melendez-Torres, 420 F.3d 45, 51 (1st Cir. 2005); United States v.
Galarza-Payan, 441 F.3d 885, 889 (10th Cir. 2006).
Should the Commission amend the guidelines to address when, if at
all, a downward departure may be warranted in an illegal reentry case
on the basis of ``cultural assimilation''? If so, how?
3. Application Instructions
Synopsis of Proposed Amendment: This proposed amendment amends
Sec. 1B1.1 (Application Instructions) in light of United States v.
Booker, 543 U.S. 220 (2005).
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, 351 (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.
[[Page 3532]]
`` `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.'' See 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 only
after departures have been considered.
As the Fifth Circuit has explained: ``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.'' United States v. Tzep-Mejia, 462 F.3d
522 (5th Cir. 2006) (internal footnote and citation omitted). On this
point most other circuits agree. See, e.g., United States v. Dixon, 449
F.3d 194, 203-4 (1st Cir. 2006) (court must consider ``any applicable
departures''); United States v. Selioutsky, 409 F.3d 114 (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.
Morehead, 437 F.3d 424, 433 (4th Cir. 2006) (departures ``remain an
important part of sentencing even after Booker''); United States v.
McBride, 434 F.3d 470 (6th Cir. 2006) (same); 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); 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 (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 (7th Cir. 2006)
(departures ``obsolete'').
In short, the district court, in determining the appropriate
sentence in a particular case, must consider the properly calculated
guideline range, the grounds for departure provided in the policy
statements, and then the factors under 18 U.S.C. 3553(a). See Rita, 551
U.S. at 351. This has been described as a ``3-step process'':
First, because the Booker decision requires that courts consult
the sentencing guidelines, a sentencing court must calculate the
applicable guideline range in the customary fashion. Second, the
court should determine whether a departure from the guideline range
is consistent with the guidelines' policy statements and commentary.
Third, the court should evaluate whether a variance, i.e., a
sentence outside the advisory guideline range is warranted under the
authority of 18 U.S.C. 3553(a).
See United States Sentencing Commission, ``Final Report on the
Impact of United States v. Booker on Federal Sentencing'' (2006) at 42.
The proposed amendment follows the approach adopted by a majority
of circuits and structures Sec. 1B1.1 to reflect the three-step
process. As amended, subsection (a) addresses how to apply the
provisions in this 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) in determining the
appropriate sentence. In addition, the proposed amendment amends the
Commentary to Sec. 1B1.1 to define the term ``variance''.
Proposed Amendment
Section 1B1.1 is amended by striking ``Except as specifically
directed, the provisions of this manual are to be applied in the
following order:'' 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
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 redesignating subdivision (i) as subsection (b) and, in that
subsection, by striking ``Refer to'' and inserting ``The court shall
then consider'', 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 determine the sentence (i.e., a sentence
within the guideline range, a departure, or a variance), considering
the applicable factors in 18 U.S.C. 3553(a) taken as a whole.''.
The Commentary to Sec. 1B1.1 captioned ``Application Notes'' is
amended in Note 1, in subparagraph (E)(i), by inserting ``as provided
for in Parts H and K of Chapter Five, Specific Offender Characteristics
and Departures, or any other policy statements or commentary in the
guidelines'' after ``guideline sentence''; and by adding at the end the
following:
``(M) `Variance' means imposition of a sentence other than as
provided in the guidelines, policy statements, and commentary of the
Guidelines Manual.''.
4. Recency
Synopsis of Proposed Amendment: In September 2009, the Commission
indicated that one of its policy priorities would be consideration of
miscellaneous guideline application issues, including ``examination of,
and possible guideline amendments relating to, the computation of
criminal history points under Sec. 4A1.1(e)''. See 74 FR 46478, 46479
(September 9, 2009). Subsection (e) of Sec. 4A1.1 (Criminal History
Category) is known as the ``recency'' provision. The Commission is
examining how the ``recency'' provision interacts with the ``status''
provision in subsection (d) of Sec. 4A1.1 and also how the ``recency''
provision interacts with other provisions regarding criminal history in
various Chapter Two offense guidelines.
Section 4A1.1 currently provides that if the instant offense was
committed while under another criminal justice sentence, 2 criminal
history points are added under subsection (d) for ``status''; if the
instant offense was committed less than two years after release from
imprisonment, or while in imprisonment or escape status, 2 points are
added under subsection (e) for ``recency''. If 2 points are added for
``status'' under (d), however, only 1 point is added for ``recency''
under (e). See Sec. 4A1.1 comment. (backg'd.) (``Because of the
potential overlap of (d) and (e), their combined impact is limited to
three points.'').
Under Sec. 4A1.1, a sentence for a single prior conviction may
count up to three times in the calculation of the Criminal History
Category (e.g., such a sentence could count under Sec. Sec. 4A1.1(a)
or (b), 4A1.1(d), and 4A1.1(e)). Additionally, the prior conviction can
increase the offense level determined under certain Chapter Two
guidelines (e.g., Sec. 2L1.2 (Unlawfully Entering or Remaining in the
United States)). Therefore, in a case in which the prior conviction
increases the Chapter Two offense level, the single prior conviction
may be counted four times in the determination of the applicable
guideline range.
The proposed amendment presents two options for amending Sec.
4A1.1 that would reduce the cumulative impact of ``recency''. Under
Option 1, ``recency'' points are eliminated for all offenders in all
cases; conforming changes to Sec. 4A1.2 (Definitions and Instructions
for Computing Criminal History) are also
[[Page 3533]]
made. Under Option 2, ``recency'' points are retained but are not
cumulative with ``status'' points; thus, in the case of an offender
eligible for both ``status'' points and ``recency'' points, the
combined impact is limited to 2 points rather than 3.
The proposed amendment also makes stylistic changes to Sec. 4A1.1
so that its subdivisions are referred to as ``subsections'' rather than
as ``items''.
Issues for comment are also provided that, in part, request comment
on whether the Commission should instead address the cumulative impact
of ``recency'' more narrowly, i.e., only for cases sentenced under
Chapter Two offense guidelines that increase the offense level based on
criminal history.
Proposed Amendment
[Option 1:
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'' each place it appears and inserting
``subsection''; 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) 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''.]
[Option 2:
Section 4A1.1(e) is amended by striking ``If 2 points are added for
item (d), add only 1 point for this item'' and inserting ``If
subsection (d) applies, do not apply this subsection''.
The Commentary to Sec. 4A1.1 captioned ``Application Notes'' is
amended in Note 5 by striking ``if two points are added under Sec.
4A1.1(d), only one point is added under Sec. 4A1.1(e)'' and inserting
``if Sec. 4A1.1(d) applies, do not apply Sec. 4A1.1(e)''.
The Commentary to Sec. 4A1.1 captioned ``Background'' is amended
in the paragraph that begins ``Section 4A1.1(e)'' by striking ``three''
and inserting ``two''; and by striking the sentence that begins
``However,''.]
Issues for Comment
1. The Commission seeks comment on whether the Commission should
reduce the cumulative impact of ``recency'' points in Sec. 4A1.1(e),
when they apply in combination with ``status'' points in Sec. 4A1.1(d)
or in combination with provisions regarding criminal history in Chapter
Two.
An example of such a provision is the specific offense
characteristic in subsection (b)(1) of Sec. 2L1.2 (Unlawfully Entering
or Remaining in the United States), which provides an enhancement of 4
to 16 levels if the defendant previously was deported, or unlawfully
remained in the United States, after a conviction for a certain type of
offense. Other examples can be found in the alternative base offense
levels in Sec. Sec. 2K2.1(a) and 2D1.1(a), which provide a heightened
base offense level if the defendant had one or more prior convictions
for certain types of offenses; the ``pattern of activity'' enhancement
in Sec. 2S1.3(b)(2), which provides an enhancement based on a pattern
of criminal activity; and the enhancements in Sec. Sec. 2N2.1(b)(1)
and 2K2.6(b)(1), which provide an enhancement based on a past
conviction.
If the Commission were to retain ``recency'' in subsection (e) of
Sec. 4A1.1, should the Commission amend the guidelines to specify
that, in a case in which a conviction is used to increase the Chapter
Two offense level, ``recency'' points shall not apply?
A. Should the Commission Reduce the Impact in Cases Sentenced Under
Sec. 2L1.2 Only?
With regard to the specific offense characteristic in Sec.
2L1.2(b)(1), should the Commission insert an application note in the
commentary to Sec. 4A1.1 and a corresponding, parallel application
note in the commentary to Sec. 2L1.2? One approach for such an
application note, which would apply only if the Chapter Two provision
and the ``recency'' provision were both derived from the same
conviction, would be the following:
``Interaction with Sec. 2L1.2(b)(1).--If a conviction is used as a
basis for an enhancement under Sec. 2L1.2(b)(1), do not use the
sentence resulting from that conviction as a basis for adding points
for `recency' under subsection (e).''
Another approach for such an application note, which would apply
even if the Chapter Two provision and the ``recency'' provision were
derived from different convictions, would be the following:
``Interaction with Sec. 2L1.2(b)(1).--If Sec. 2L1.2(b)(1)
applies, do not apply subsection (e).''
Should the Commission follow one of these approaches? Is there a
different approach the Commission should follow?
B. Should the Commission Reduce the Impact in Cases Under Other
Specific Guidelines?
Should such an application note also be provided for a case in
which (1) a conviction is used as a basis for an alternative base
offense level, such as in Sec. Sec. 2K2.1(a) and 2D1.1(a); or (2) a
conviction is used as a basis for a pattern of activity enhancement,
such as in Sec. 2S1.3(b)(2); or (3) a conviction is otherwise used as
a basis for an enhancement, such as in Sec. Sec. 2N2.1(b)(1) and
2K2.6(b)(1)? Are there other provisions in Chapter Two for which such
an application note should be provided?
5. Hate Crimes
Synopsis of Proposed Amendment: This proposed amendment responds to
the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act
(division E of Pub. L. 111-84) (the ``Act''). With regard to hate
crimes, the Act created a new offense and amended a 1994 congressional
directive to the Commission. The Act also created a second new offense,
relating to attacking a United States serviceman on account of his or
her service.
The new hate crimes 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,
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 section 249 is subject to imprisonment for not more than 10
years (or, if the offense includes kidnapping, aggravated sexual abuse,
or an attempt to kill, or if death results from the offense, for any
term of
[[Page 3534]]
years or for life). The proposed amendment amends Appendix A (Statutory
Index) to reference the new offense to Sec. 2H1.1 (Offenses Involving
Individual Rights).
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 congressional directive to the Commission regarding
hate crimes that the Commission implemented in subsection (a) of Sec.
3A1.1 (Hate Crime Motivation or Vulnerable Victim). The Act expanded
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 congressional directive in section
280003(b) to require the Commission to provide an enhancement for
crimes motivated by actual or perceived ``gender identity''. To reflect
that congressional action, the proposed amendment amends Sec. 3A1.1(a)
to include crimes motivated by actual or perceived ``gender identity'',
and makes conforming changes to Sec. Sec. 2H1.1 and 3A1.1.
In addition, the proposed amendment contains a bracketed proposal
to strike the special instruction in Sec. 3A1.1(c), which states that
the 3-level enhancement in Sec. 3A1.1(a) shall not apply if the 6-
level enhancement in Sec. 2H1.1(b) applies. Currently, the 3-level
enhancement in Sec. 3A1.1(a) applies if the offense was a hate crime,
i.e., was motivated by the actual or perceived race, color, religion,
national origin, ethnicity, gender, disability, or sexual orientation
of any person; the 6-level enhancement in Sec. 2H1.1(b) applies if (A)
the defendant was a public official at the time of the offense, or (B)
the offense was committed under color of law. By striking the special
instruction in Sec. 3A1.1(c), the proposed amendment would allow both
enhancements to operate, if applicable in a particular case. Conforming
changes to Sec. Sec. 2H1.1 and 3A1.1 are also bracketed.
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 status of
that individual as a United States serviceman. A person who violates
section 1389 is subject to imprisonment for not more than 2 years (in
the case of a simple assault, or damage of not more than $500), for not
more than 5 years (in the case of damage of more than $500), or for not
less than 6 months nor more than 10 years (in the case of a battery, or
an assault resulting in bodily injury). The proposed amendment amends
Appendix A (Statutory Index) to reference the new offense to Sec. Sec.
2A2.2 (Aggravated Assault), 2A2.3 (Minor Assault) and 2B1.1 (Theft,
Property Destruction, and Fraud). The Commission anticipates that the
official victim adjustment in Sec. 3A1.2 (Official Victim) would apply
in such a case.
Proposed 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,''.
[The Commentary to Sec. 2H1.1 captioned ``Application Notes'' is
amended in Note 4 by striking the sentence that begins ``An
adjustment'' and all that follows through ``See Sec. 3A1.1(c).''.]
Section 3A1.1 is amended in subsection (a) by inserting ``gender
identity,'' after ``gender,''.
[Section 3A1.1 is amended by striking subsection (c).]
[The Commentary to Sec. 3A1.1 captioned ``Application Notes'' is
amended in Note 1 by striking the sentence that begins ``Moreover,''.]
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. Sec.
249(c)(4).''.
The Commentary to Sec. 3A1.1 captioned ``Background'' is amended
in the first paragraph by adding at the end 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. Sec. 249 2H1.1'';
and by inserting after the line referenced to 18 U.S.C. 1369 the
following:
``18 U.S.C. Sec. 1389 2A2.2, 2A2.3, 2B1.1''.
6. Organizational Guidelines
Synopsis of Proposed Amendment: This proposed amendment makes
several changes to Chapter Eight of the Guidelines Manual regarding the
sentencing of organizations.
First, the proposed amendment amends the Commentary to Sec. 8B2.1
(Effective Compliance and Ethics Program) to clarify the remediation
efforts required to satisfy subsection (b)(7) (the seventh requirement
for an effective compliance and ethics program). The proposed amendment
adds a new application note that describes the reasonable steps to
respond appropriately after criminal conduct is detected, including
remedying the harm caused to identifiable victims and payment of
restitution. Notably, restitution is already a significant remediation
step considered under current Department of Justice guidelines in
determining whether to prosecute business organizations. See U.S.
Attorney's Manual, Chapter 9-28.300(A)(6) and Chapter 9-28.900(A) &
(B).
Second, the proposed amendment amends Sec. 8D1.4 (Recommended
Conditions of Probation--Organizations) (Policy Statement) to augment
and simplify the recommended conditions of probation for organizations.
The policy statement currently distinguishes between conditions of
probation imposed solely to enforce a monetary penalty (addressed in
subsection (b)) and conditions of probation imposed for any other
reason (addressed in subsection (c)). Under the proposed amendment,
subsections (b) and (c) are consolidated; accordingly, when a court
determines there is a need for organizational probation, all
conditional probation terms are available for consideration by the
court. The proposed amendment also inserts specific language regarding
the engagement of an independent, properly qualified, corporate
monitor. This language reflects current governmental policy and best
practices with regard to the appointment of such independent corporate
monitors. Finally, the proposed amendment inserts specific language
requiring the organization to submit to a reasonable number of regular
or unannounced examinations of facilities subject to probation
supervision.
In addition, the proposed amendment contains, in brackets, two
proposed additions to the Commentary of Sec. 8B2.1. The first
bracketed addition amends Application Note 3 to include a new paragraph
which clarifies what is expected of high-level personnel and
[[Page 3535]]
substantial authority personnel. Such personnel ``should be aware of
the organization's document retention policies and conform any document
retention policy to meet the goals of an effective compliance program
under the guidelines and to avoid any liability under the law''.
The second bracketed addition amends Application Note 6 to clarify
that when an organization periodically assesses the risk that criminal
conduct will occur, the ``nature and operations of the organization
with regard to particular ethics and compliance functions'' should be
included among the other matters assessed. This bracketed addition also
states, as an example, that ``all employees should be aware of the
organization's document retention policy or policies and conform any
document retention policy to meet the goals of an effective compliance
program under the guidelines and to avoid any liability under the
law''.
Finally, the proposed amendment makes technical and conforming
changes.
An issue for comment is also included on whether to encourage
direct reporting to the board by responsible compliance personnel by
allowing an organization with such a structure to benefit from a three
level mitigation of the culpability score, even if high-level personnel
are involved in the criminal conduct.
Proposed Amendment
[The Commentary to Sec. 8B2.1 captioned ``Application Notes'' is
amended in Note 3 by adding at the end the following:
``Both high-level personnel and substantial authority personnel
should be aware of the organization's document retention policies
and conform any such policy to meet the goals of an effective
compliance program under the guidelines and to reduce the risk of
liability under the law (e.g. 18 U.S.C. Sec. 1519; 18 U.S.C. Sec.
1512(c)).'';
and in Note 6(A) by adding at the end the following:
``(iv) The nature and operations of the organization with regard
to particular ethics and compliance functions. For example, all
employees should be aware of the organization's document retention
policies and conform any such policy to meet the goals of an
effective compliance program under the guidelines and to reduce the
risk of liability under the law (e.g. 18 U.S.C. Sec. 1519; 18
U.S.C. Sec. 1512(c)).]
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).--The seventh minimal
requirement for an effective compliance and ethics program provides
guidance on the reasonable steps that an organization should take
after detection of criminal conduct. First, the organization should
respond appropriately to the criminal conduct. In the event the
criminal conduct has an identifiable victim or victims the
organization should take reasonable steps to provide restitution and
otherwise remedy the harm resulting from the criminal conduct. Other
appropriate responses may include self-reporting, cooperation with
authorities, and other forms of remediation. Second, to prevent
further similar criminal conduct, the organization should assess the
compliance and ethics program and make modifications necessary to
ensure the program is more effective. The organization may take the
additional step of retaining an independent monitor to ensure
adequate assessment and implementation of the modifications.''.
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
subdivision (1), the organization shall notify its employees and
shareholders of its criminal behavior and its program referred to in
subdivision (1). Such notice shall be in a form prescribed by the
court.
(3) The organization shall be required to retain an independent
corporate monitor agreed on by the parties or, in the absence of
such an agreement, selected by the court. The independent corporate
monitor must have appropriate qualifications and no conflict of
interest in the case. The scope of the independent corporate
monitor's role shall be approved by the court. Compensation to and
costs of any independent corporate monitor shall be paid by the
organization.
(4) 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 subdivision (1). Among other
things, such reports 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.
(5) The organization shall be required to 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.
(6) 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, experts
engaged by the court, or independent corporate monitor; (B) a
reasonable number of regular or unannounced examinations of
facilities subject to probation supervision; and (C) interrogation
of knowledgeable individuals within the organization. Compensation
to and costs of any experts engaged by the court or independent
corporate monitors shall be paid by the organization.
(7) The organization shall be required to 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)''; by inserting ``or
require retention of an independent corporate monitor'' after
``experts''; and by striking ``(c)(3)'' and inserting ``(b)(4)''.
Issue for Comment
1. Should the Commission amend Sec. 8C2.5(f)(3) (Culpability
Score) to allow an organization to receive the three level mitigation
for an effective compliance program even when high-level personnel are
involved in the offense if (A) the individual(s) with operational
responsibility for compliance in the organization have direct reporting
authority to the board level (e.g. an audit committee of the board);
(B) the compliance program was successful in detecting the offense
prior to discovery or reasonable likelihood of discovery outside of the
organization; and (C) the organization promptly reported the violation
to the appropriate authorities?
7. Miscellaneous
Synopsis of Proposed Amendment: This proposed multi-part amendment
responds to miscellaneous issues arising from legislation recently
enacted and other miscellaneous guideline application issues.
Part A of the proposed amendment responds to the Fraud Enforcement
and Recovery Act of 2009 (Pub. L. 111-21), which expanded the
securities fraud statute, 18 U.S.C. 1348, so that it also covers
commodities fraud. Section 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)
[[Page 3536]]
contains an enhancement at subsection (b)(17)(B) that applies when a
violation of commodities law is committed by certain specified persons
who have fiduciary duties. The proposed amendment adds 18 U.S.C. 1348
to the list of offenses that qualify as ``commodities law'' for
purposes of this enhancement.
Part B of the proposed amendment responds to the Omnibus Public
Land Management Act of 2009 (Pub. L. 111-11), which established a new
offense at 16 U.S.C. 470aaa-5. The new offense makes it unlawful to
excavate, remove, damage, or otherwise alter or deface any
paleontological resource on federal land; to traffic in a
paleontological resource taken from federal land; or to make or submit
a false record relating to a paleontological resource taken from
federal land. The proposed amendment adds 16 U.S.C. 470aaa-5 to
Appendix A (Statutory Index) and references it to Sec. Sec. 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). Technical and conforming
changes to Sec. Sec. 2B1.1 and 2B1.5 are also made.
Part C of the proposed amendment responds to the Children's Health
Insurance Program Reauthorization Act of 2009 (Pub. L. 111-3), which
amends the Social Security Act to establish a new offense at 42 U.S.C.
1396w-2. This provision provides limited authority for private entities
to disclose certain personal information related to eligibility
determinations to appropriate State agencies, and also creates a new
Class A misdemeanor for those who abuse this limited authority and
communicate protected information to parties not entitled to view it.
The proposed amendment adds 42 U.S.C. 1396w-2 to Appendix A (Statutory
Index) and references it to Sec. 2H3.1 (Interception of
Communications; Eavesdropping; Disclosure of Certain Private or
Protected Information).
Part D of the proposed amendment responds to a regulatory change in
the status of iodine as a listed chemical. Under that regulatory
change, iodine was upgraded from a List II chemical to a List I
chemical. The proposed amendment changes the Chemical Quantity Table in
Sec. 2D1.11 (Unlawfully Distributing, Importing, Exporting or
Possessing a Listed Chemical; Attempt or Conspiracy) to reflect the
upgrade. Because the maximum base offense level is higher for List I
chemicals (level 30) than for List II chemicals (level 28), the
proposed amendment also extends iodine's maximum base offense level to
level 30 and specifies the amount of iodine that would be needed (1.3
kilograms) for a base offense level of 30 to apply.
Proposed Amendment
(A) Fraud Enforcement and Recovery Act of 2009
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is
amended in Note 14(A) by inserting ``and 18 U.S.C. Sec. 1348'' after
``7 U.S.C. Sec. 1 et seq.)''.
(B) Omnibus Public Land Management Act of 2009
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).''
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 by inserting ``or paleontological
resource'' after ``heritage resource'' each place it appears; 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 (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:
``(B) `Paleontological resource' has the meaning given such term
in 16 U.S.C. Sec. 470aaa.''.
The Commentary to Sec. 2B1.5 captioned ``Application Notes'' is
amended in Note 2 by striking ``Cultural Heritage'' both places it
appears; and by striking ``cultural heritage'' 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 two places it appears; and by striking
``cultural heritage'' after ``or other''.
Appendix A (Statutory Index) is amended by inserting after the line
referenced to 16 U.S.C. Sec. 413 the following:
``16 U.S.C. Sec. 470aaa-5 2B1.1, 2B1.5''.
(C) Children's Health Insurance Program Reauthorization Act of 2009
Appendix A (Statutory Index) is amended by inserting after the line
referenced to 42 U.S.C. 1396h(b)(2) the following:
``42 U.S.C. Sec. 1396w-2 2H3.1''.
(D) Iodine
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'', and in the lines referenced to
``Toluene'' by striking the semicolon and inserting a period.
8. Technical
Synopsis of Proposed Amendment: This two-part proposed amendment
makes various technical and conforming changes to the guidelines.
[[Page 3537]]
Part A of the proposed 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), 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. Sec. 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) 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 more 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 Note 2, to ensure that a
quotation contained in that note 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. 2L2.2 (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.
Part B of the proposed amendment makes a series of changes to the
Guidelines Manual to promote stylistic consistency in how subdivisions
are designated. Specifically, 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)''). See Koons Buick Pontiac GMC, Inc., v. Nigh, 543 U.S. 50,
60 (2004). 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)''). Part B of the proposed amendment identifies places in the
Guidelines Manual where these principles are not followed and brings
them into conformity.
Proposed Amendment
(A) Changes To Promote Accuracy and Completeness
The Commentary to Sec. 1B1.3 captioned ``Application Notes'' is
amended in Note 6, in the paragraph that begins ``A particular
guideline'', by striking ```is''
[[Page 3538]]
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 ``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. 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. Sec.
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. Sec. 16911''.
The Commentary to Sec. 2B1.4 captioned ``Application Notes'' is
amended in Note 1 by striking ``Subsection of''.
The Commentary to Sec. 2B1.5 captioned ``Application Notes'' is
amended in Note 1(C) by striking ``299'' and inserting ``229''; and in
Note 1(E) by striking ``section 2(c) of Public Law 99-652 (40 U.S.C.
1002(c))'' and inserting ``40 U.S.C. Sec. 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 paragraph that begins ``This guideline also applies'' by
striking ``was recently increased from two to'' and inserting ``is'';
and by striking the sentence that begins ``Violation'' and all that
follows through ``to the Medicaid program.'' and inserting ``Violations
of 42 U.S.C. Sec. 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. Sec. 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 paragraph that begins ``Section 2D2.1(b)(1)'' by striking
``Section 6371 of the Anti-Drug Abuse Act of 1988'' both places it
appears and inserting ``21 U.S.C. Sec. 844'' 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,''.
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. 2K2.5 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. Sec. 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. Sec. 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. Sec. 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),''.
Appendix A (Statutory Index) is amended in the line referenced to 7
U.S.C. Sec. 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. 47 the
following:
``18 U.S.C. Sec. 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. Sec. 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).
(B) Changes To Promote Stylistic Consistency
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)''.
The Commentary to Sec. 1B1.13 captioned ``Application Notes'' is
amended in Note 1 by striking
[[Page 3539]]
``Subsection'' and inserting ``Subdivision''.
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 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. 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)''.
[FR Doc. 2010-970 Filed 1-20-10; 8:45 am]
BILLING CODE 2210-40-P