[Federal Register Volume 76, Number 12 (Wednesday, January 19, 2011)]
[Notices]
[Pages 3193-3209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-994]
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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.
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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 drug trafficking, including (A)
a proposal to repromulgate as a permanent amendment the emergency,
temporary amendment in response to the Fair Sentencing Act of 2010,
Public Law 111-220, regarding offenses involving crack cocaine and
regarding certain aggravating and mitigating circumstances in drug
trafficking cases, and (B) a proposed change to Sec. 2D1.1 (Unlawful
Manufacturing, Importing, Exporting, or Trafficking (Including
Possession with Intent to Commit These Offenses); Attempt or
Conspiracy) to implement the directive in section 4 of the Secure and
Responsible Drug Disposal Act of 2010, Public Law 111-273, and related
issues for comment on drug trafficking; (2) a proposed amendment on
firearms, including
[[Page 3194]]
proposed changes to Sec. 2M5.2 (Exportation of Arms, Munitions, or
Military Equipment or Services Without Required Validated Export
License) regarding certain cases involving small arms and ammunition
crossing the border and related issues for comment, including whether
revisions to Sec. 2K2.1 (Unlawful Receipt, Possession, or
Transportation of Firearms or Ammunition; Prohibited Transactions
Involving Firearms or Ammunition) and related guidelines may be
appropriate to address concerns about firearms crossing the border and
straw purchasers; (3) a proposed amendment to Appendix A (Statutory
Index) in response to the Dodd-Frank Wall Street Reform and Protection
Act, Public Law 111-203, and issues for comment regarding the
directives in section 1079A of that Act; (4) a proposed amendment to
Sec. 2B1.1 (Theft, Property Destruction, and Fraud) to implement the
directive in section 10606 of the Patient Protection and Affordable
Care Act, Public Law 111-148, and a related issue for comment; (5) a
proposed amendment on supervised release, including a proposed change
to Sec. 5D1.1 (Imposition of a Term of Supervised Release) on cases in
which the court is required by the guidelines to impose supervised
release and a proposed change to Sec. 5D1.2 (Term of Supervised
Release) on the minimum lengths required by that guideline for a term
of supervised release, and related issues for comment; (6) a proposed
amendment to Sec. 2L1.2 (Unlawfully Entering or Remaining in the
United States) that would provide a limitation on the use of
convictions under Sec. 2L1.2(b)(1)(A) and (B) in certain
circumstances; (7) a proposed amendment to Sec. 2J1.1 (Contempt) that
would address a circuit conflict on the applicability of a specific
enhancement in a case involving the willful failure to pay court-
ordered child support; (8) a proposed amendment in response to
miscellaneous issues arising from legislation recently enacted and
other miscellaneous guideline application issues, including proposed
changes to the policy statement at Sec. 6B1.2 (Standards for
Acceptance of Plea Agreements) in light of United States v. Booker, 543
U.S. 220 (2005), and proposed changes to Appendix A (Statutory Index)
to address certain criminal provisions in the Coast Guard Authorization
Act of 2010, Public Law 111-281; and (9) 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 21, 2011.
(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 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 requests public comment regarding whether, pursuant
to 18 U.S.C. 3582(c)(2) and 28 U.S.C. 994(u), any proposed amendment
published in this notice should be included in subsection (c) of Sec.
1B1.10 (Reduction in Term of Imprisonment as a Result of Amended
Guideline Range (Policy Statement)) as an amendment that may be applied
retroactively to previously sentenced defendants. The Commission lists
in Sec. 1B1.10(c) the specific guideline amendments that the court may
apply retroactively under 18 U.S.C. 3582(c)(2). The background
commentary to Sec. 1B1.10 lists the purpose of the amendment, the
magnitude of the change in the guideline range made by the amendment,
and the difficulty of applying the amendment retroactively to determine
an amended guideline range under Sec. 1B1.10(b) as among the factors
the Commission considers in selecting the amendments included in Sec.
1B1.10(c). To the extent practicable, public comment should address
each of these factors.
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.
Patti B. Saris,
Chair.
1. Drugs
Synopsis of Proposed Amendment: In October 2010, the Commission
promulgated an emergency, temporary amendment to implement the
emergency directive in section 8 of the Fair Sentencing Act of 2010,
Public Law 111-220 (the ``Fair Sentencing Act''). See Appendix C,
Amendment 748 (effective November 1, 2010). The emergency amendment
made a number of substantive changes to Sec. 2D1.1 (Unlawful
Manufacturing, Importing, Exporting, or Trafficking (Including
Possession with Intent to Commit These Offenses); Attempt or
Conspiracy), including changes to the Drug Quantity Table for offenses
involving cocaine base (``crack'' cocaine), new enhancements to account
for certain aggravating factors, and new reductions to account for
certain mitigating factors. The emergency amendment also made revisions
to five other guidelines: Sec. Sec. 2D1.14 (Narco-Terrorism), 2D2.1
(Unlawful Possession; Attempt or Conspiracy), 2K2.4 (Use of Firearm,
Armor-Piercing Ammunition, or Explosive During or in Relation to
[[Page 3195]]
Certain Crimes), 3B1.4 (Using a Minor To Commit a Crime), and 3C1.1
(Obstructing or Impeding the Administration of Justice). The proposed
amendment re-promulgates these guidelines without change.
In addition to re-promulgating the emergency amendment, the
proposed amendment further amends the Commentary to Sec. 2D1.1 in
response to the Secure and Responsible Drug Disposal Act of 2010,
Public Law 111-273 (the ``Drug Disposal Act''). Section 3 of the Drug
Disposal Act amended 21 U.S.C. 822 to authorize certain persons in
possession of controlled substances (e.g., ultimate users and long-term
care facilities) to deliver the controlled substances for the purpose
of disposal. Section 4 of the Drug Disposal Act contained a directive
to the Commission to ``review and, if appropriate, amend'' the
guidelines to ensure that the guidelines provide ``an appropriate
penalty increase of up to 2 offense levels above the sentence otherwise
applicable in Part D of the Guidelines Manual if a person is convicted
of a drug offense resulting from the authorization of that person to
receive scheduled substances from an ultimate user or long-term care
facility as set forth in the amendments made by section 3.'' The
proposed amendment responds to the directive by amending Application
Note 8 to Sec. 2D1.1 to provide that an adjustment under Sec. 3B1.3
(Abuse of Position of Trust or Use of Special Skill) applies in a case
in which the defendant is convicted of a drug offense resulting from
the authorization of the defendant to receive scheduled substances from
an ultimate user or long-term care facility.
The proposed amendment concludes with a series of issues for
comment arising out of the Commission's continued work on the
guidelines applicable to drug trafficking, including issues for comment
on--
(1) Whether the Commission should make any changes to the Fair
Sentencing Act emergency amendment in re-promulgating it as a permanent
amendment;
(2) Whether the permanent amendment or any part thereof should be
included in subsection (c) of Sec. 1B1.10 (Reduction in Term of
Imprisonment as a Result of Amended Guideline Range (Policy Statement))
as an amendment that may be applied retroactively to previously
sentenced defendants;
(3) What changes, if any, should be made to the guidelines
applicable to drug trafficking; and
(4) What changes, if any, should be made to Sec. 3B1.1
(Aggravating Role) and Sec. 3B1.2 (Mitigating Role) as they apply to
drug trafficking cases.
Proposed Amendment
Sections 2D1.1, 2D1.14, 2D2.1, 2K2.4, 3B1.4, and 3C1.1, as amended
by Amendment 748 (see Supplement to the 2010 Guidelines Manual
(effective November 1, 2010); see also 75 FR 66188 (October 27, 2010)),
are repromulgated without change.
In addition, the Commentary to Sec. 2D1.1 captioned ``Application
Notes'' is amended in Note 8 in the first paragraph by adding at the
end the following:
``An adjustment under Sec. 3B1.3 also applies in a case in which
the defendant is convicted of a drug offense resulting from the
authorization of the defendant to receive scheduled substances from an
ultimate user or long-term care facility. See 21 U.S.C. 822(g).''.
Issues for Comment
1. Re-Promulgation of the Fair Sentencing Act. The Fair Sentencing
Act of 2010 reduced statutory penalties for cocaine base (``crack''
cocaine) offenses, eliminated the mandatory minimum sentence for simple
possession of crack cocaine, and directed the Commission to review and
amend the sentencing guidelines to account for specified aggravating
and mitigating circumstances in certain drug cases.
Section 8 of the Act required the Commission to promulgate, under
emergency authority, the amendments provided for in the Act and such
conforming amendments as the Commission determined necessary to achieve
consistency with other guideline provisions and applicable law. The
Commission was required to promulgate the amendment as soon as
practicable, and in any event not later than 90 days after enactment of
the Act. The Commission promulgated the temporary, emergency amendment
required by the Act and established an effective date of November 1,
2010, for the amendment. See Appendix C, Amendment 748 (effective
November 1, 2010). The temporary, emergency amendment will expire not
later than November 1, 2011. See section 21(a) of the Sentencing Act of
1987 (28 U.S.C. 994 note); 28 U.S.C. 994(p).
The Commission is continuing work on the issues raised by the Act
during the regular amendment cycle ending May 1, 2011, with a view to
re-promulgating the temporary amendment as a permanent amendment (in
its original form, or with revisions) under 28 U.S.C. 994(p). The
Commission seeks comment on whether the Commission should make any
changes to the emergency amendment in re-promulgating it as a permanent
amendment. If so, what changes should the Commission make?
In particular, the Commission seeks comment on whether the penalty
structure in the Drug Quantity Table for crack cocaine should continue
to be set so that the statutory mandatory minimum penalties correspond
to base offense levels 26 and 32. When the Commission re-promulgates
the temporary amendment as a permanent amendment, should the Commission
amend the Drug Quantity Table for crack cocaine so that base offense
levels 24 and 30, rather than 26 and 32, correspond to the Act's new
mandatory minimum penalties?
2. Possible Retroactivity of Permanent Amendment or Any Part
Thereof. The proposed permanent amendment would reduce the term of
imprisonment recommended in the guidelines applicable to a particular
offense or category of offenses. See 28 U.S.C. 994(u) (``If the
Commission reduces the term of imprisonment recommended in the
guidelines applicable to a particular offense or category of offenses,
it shall specify in what circumstances and by what amount the sentences
of prisoners serving terms of imprisonment for the offense may be
reduced.''). The Commission seeks comment regarding whether, pursuant
to 18 U.S.C. 3582(c)(2) and 28 U.S.C. 994(u), the proposed permanent
amendment or any part thereof should be included in subsection (c) of
Sec. 1B1.10 (Reduction in Term of Imprisonment as a Result of Amended
Guideline Range (Policy Statement)) as an amendment that may be applied
retroactively to previously sentenced defendants.
In particular, the proposed permanent amendment would change the
Drug Quantity Table in Sec. 2D1.1 and also make additional mitigating
changes (e.g., a ``minimal role cap'' in Sec. 2D1.1(a)(5), a downward
adjustment for certain defendants with ``minimal'' role in Sec.
2D1.1(b)(15), and a deletion of the cross reference in Sec.
2D2.1(b)(1) under which an offender who possessed more than 5 grams of
crack cocaine was sentenced under Sec. 2D1.1) as well as certain
proposed enhancements (e.g., enhancements for violence in Sec.
2D1.1(b)(2), for bribery in Sec. 2D1.1(b)(11), for maintaining a drug
premises in Sec. 2D1.1(b)(12), and for certain defendants with an
aggravating role in Sec. 2D1.1(b)(14)). Should the Commission provide
that only parts of the proposed permanent amendment may be applied
retroactively? For example, should the Commission provide that only the
changes to the Drug Quantity Table may be applied retroactively, or
that those changes and
[[Page 3196]]
the other mitigating changes may be applied retroactively?
Alternatively, should the Commission provide that the entire proposed
permanent amendment may be applied retroactively, including the
proposed enhancements (provided that the amended guideline range
resulting from the proposed permanent amendment is not greater than the
original term of imprisonment imposed)?
If the Commission does provide that the proposed permanent
amendment or any part thereof may be applied retroactively to
previously sentenced defendants, should the Commission provide further
guidance or limitations regarding the circumstances in which and the
amount by which sentences may be reduced? For example, should the
Commission limit retroactivity only to a particular category or
categories of defendants, such as (A) Defendants who were sentenced
within the guideline range, (B) defendants who were sentenced within
the guideline range or who received a departure under Chapter Five,
Part K, (C) defendants in a particular criminal history category or
categories (e.g., defendants in Criminal History Category I), (D)
defendants sentenced before United States v. Booker, 543 U.S. 220
(2005), (E) defendants sentenced before Kimbrough v. United States, 552
U.S. 85, 110 (2007) (``it would not be an abuse of discretion for a
district court to conclude when sentencing a particular defendant that
the crack/powder disparity yields a sentence `greater than necessary'
to achieve Sec. 3553(a)'s purposes, even in a mine-run case''), or (F)
defendants sentenced before Spears v. United States, 555 U.S. 261, 129
S.Ct. 840, 844 (2009) (``we now clarify that district courts are
entitled to reject and vary categorically from the crack-cocaine
Guidelines based on a policy disagreement with those Guidelines'')?
If the Commission were to provide that the proposed amendment or
any part thereof may be applied retroactively to previously sentenced
defendants, what conforming changes, if any, should the Commission make
to Sec. 1B1.10?
3. Whether Additional Revisions to the Drug Trafficking Guidelines
May Be Appropriate. The Commission requests comment on whether any
additional revisions should be made to the guidelines applicable to
drug trafficking cases. The complexity and scope of such an undertaking
is such that it may not be completed this year (i.e., during the
amendment cycle ending May 1, 2011), but the Commission is requesting
comment regarding what revisions, if any, to Sec. 2D1.1 and related
guidelines may be appropriate this year.
Drug Quantity Table. The penalty structure of the Drug Quantity
Table is based on the penalty structure of Federal drug laws, which
generally establish three tiers of penalties for manufacturing and
trafficking in controlled substances, each based on the amount of
controlled substances involved. See 21 U.S.C. 841(b)(1)(A), (B), (C),
960(b)(1), (2), (3). For smaller quantities, the statutory maximum term
of imprisonment is 20 years, and there is no statutory minimum term of
imprisonment. If the amount of the controlled substance reaches a
statutorily specified quantity, however, the statutory maximum term
increases to 40 years, and a statutory minimum term of 5 years applies.
If the amount of the controlled substance reaches ten times that
specified quantity, the statutory maximum term is life, and a statutory
minimum term of 10 years applies.
The Commission has generally incorporated these statutory mandatory
minimum sentences into the Drug Quantity Table and extrapolated upward
and downward to set guideline sentencing ranges for all drug
quantities. See Sec. 2D1.1, comment. (backg'd.) (``The base offense
levels in Sec. 2D1.1 are either provided directly by the Anti-Drug
Abuse Act of 1986 or are proportional to the levels established by
statute, and apply to all unlawful trafficking.''). The drug quantity
thresholds in the Drug Quantity Table have generally been set so as to
provide base offense levels corresponding to guideline ranges that are
slightly above the statutory mandatory minimum penalties. Thus, the
quantity that triggers a statutory 5-year mandatory minimum term of
imprisonment is the quantity that triggers a base offense level of 26,
and the quantity that triggers a statutory 10-year mandatory minimum
term of imprisonment is the quantity that triggers a base offense level
of 32. See Sec. 2D1.1, comment. (backg'd.) (``The base offense levels
at levels 26 and 32 establish guideline ranges with a lower limit as
close to the statutory minimum as possible; e.g., level 32 ranges from
121 to 151 months, where the statutory minimum is ten years or 120
months.''). The Commission has stated that ``[t]he base offense levels
are set at guideline ranges slightly higher than the mandatory minimum
levels to permit some downward adjustment for defendants who plead
guilty or otherwise cooperate with authorities.'' See United States
Sentencing Commission, Special Report to Congress: Cocaine and Federal
Sentencing Policy (February 1995) at 148.
The ``Safety Valve''. In 1994 Congress enacted the ``safety
valve,'' which applies to certain first-time, non-violent drug
defendants and allows the court, without any government motion, to
impose a sentence below a statutory mandatory minimum penalty if the
court finds, among other things, that the defendant ``has truthfully
provided to the Government all information and evidence the defendant
has concerning the offense or offenses that were part of the same
course of conduct or of a common scheme or plan''. See 18 U.S.C.
3553(f). This statutory provision is incorporated into the guidelines
at USSG Sec. 5C1.2 (Limitation on Applicability of Statutory Minimum
Sentences in Certain Cases). In addition, Sec. 2D1.1(b)(16) provides a
2-level reduction if the defendant meets the ``safety valve'' criteria,
regardless of whether a mandatory minimum penalty applies in the case.
The Commission seeks comment on what changes, if any, should be
made to the guidelines applicable to drug trafficking cases. In
particular, the Commission seeks comment on whether the Commission
should consider changing how the base offense levels in the Drug
Quantity Table incorporate the statutory mandatory minimum penalties
and, if so, how? For example, should the Commission amend the Drug
Quantity Table so that base offense levels 24 and 30, rather than 26
and 32, correspond with the statutory mandatory minimum penalties? As
mentioned above, such an undertaking may not be completed this year
(i.e., during the amendment cycle ending May 1, 2011).
The Commission is also requesting comment regarding what revisions,
if any, to Sec. 2D1.1 and related guidelines may be appropriate this
year. For example, should the Commission consider--
A. A 2-level downward adjustment in drug trafficking cases if there
are no aggravating circumstances involved in the case, e.g., none of
the alternative base offense levels for death or serious bodily injury
in Sec. 2D1.1(a)(1)-(4) apply, none of the enhancements in Sec.
2D1.1(b) apply, and none of the upward adjustments in Chapter Three
apply?
B. expanding the 2-level downward adjustment in subsection
(b)(16)--which applies to defendants who meet the ``safety valve''
criteria--so that it applies to defendants who have more than 1
criminal history point but otherwise meet all other ``safety valve''
criteria, or providing a similar downward adjustment to drug
trafficking defendants who truthfully provide to
[[Page 3197]]
the Government all information and evidence the defendant has
concerning the offense?
If the Commission were to make changes to the guidelines applicable
to drug trafficking cases, what conforming changes, if any, should the
Commission make to other provisions of the Guidelines Manual?
4. Role Adjustments. The Fair Sentencing Act of 2010 contained
several directives to the Commission to amend the guidelines to provide
increased emphasis on the defendant's role in the offense. See Fair
Sentencing Act of 2010 Sec. Sec. 6 (``Increased Emphasis on
Defendant's Role and Certain Aggravating Factors''), 7 (``Increased
Emphasis on Defendant's Role and Certain Mitigating Factors''). The
proposed permanent amendment implements these directives by adding
several provisions to Sec. 2D1.1, including a new sentence in
subsection (a)(5) (a maximum base offense level for certain defendants
with a minimal role) and new specific offense characteristics at
subsections (b)(14) (an enhancement for certain defendants with an
aggravating role) and (15) (a downward adjustment for certain
defendants with a minimal role).
In light of these directives and the Commission's continued work on
the guidelines applicable to drug trafficking, the Commission requests
comment on what changes, if any, should be made to Sec. 3B1.1
(Aggravating Role) and Sec. 3B1.2 (Mitigating Role) as they apply to
drug trafficking cases.
Mitigating Role
The text of Sec. 3B1.2 has remained unchanged from the original
Guidelines Manual in 1987; the guideline continues to provide a
downward adjustment based on the defendant's role in the offense: 4
levels if the defendant was a ``minimal'' participant in any criminal
activity, 2 levels if the defendant was a ``minor'' participant in such
activity, and 3 levels in cases falling in between.
The Commentary to Sec. 3B1.2 clarifies when and to whom the
guideline applies. While the Commission has amended and reorganized the
Commentary several times since 1987 with regard to certain types of
cases, many elements of the commentary remain the same, including the
following:
To be eligible for an adjustment, the defendant must ``play[] a
part in committing the offense that makes him substantially less
culpable than the average participant.'' See Sec. 3B1.2,
Application Note 3(A).
The 4-level ``minimal'' role adjustment applies if the defendant
is ``plainly among the least culpable of those involved in the
conduct of a group.'' See Sec. 3B1.2, Application Note 4.
The 2-level ``minor'' role adjustment applies if the defendant
``is less culpable than most other participants'' but his or her
conduct ``could not be described as minimal.'' See Sec. 3B1.2,
Application Note 5.
The determination whether to apply a 4-, 3-, or 2-level
adjustment is ``heavily dependent upon the facts of the particular
case.'' See Sec. 3B1.2, Application Note 3(C).
In 2001, the Commission amended the Commentary to clarify that a
defendant who is held accountable under Sec. 1B1.3 (Relevant Conduct)
only for the amount of drugs the defendant personally handled is not
automatically precluded from receiving an adjustment under Sec. 3B1.2.
See USSG App. C, Amendment 635 (effective November 1, 2001). The
Commission also made a number of other revisions to the commentary to
clarify guideline application. Id. In making these changes, the
Commission deleted a portion of the Commentary that had stated that a
``downward adjustment for a minimal participant * * * would be
appropriate, for example, for someone who played no other role in a
very large drug smuggling operation than to offload part of a single
marihuana shipment, or in a case where an individual was recruited as a
courier for a single smuggling transaction involving a small amount of
drugs.'' Id.
The Commission has received public comment stating that there are
differences from district to district with regard to the application of
Sec. 3B1.2 in drug trafficking cases. In addition, the Commission has
observed that, in drug trafficking cases, there are differences from
district to district both on the rates of application of Sec. 3B1.2
and the relative rates of application of the 4-, 3-, and 2-level
adjustments.
Aggravating Role
As with the mitigating role guideline, the text of the aggravating
role guideline, Sec. 3B1.1, has remained unchanged from the original
Guidelines Manual in 1987. The guideline continues to provide an upward
adjustment based on the defendant's role in the offense: 4 levels if
the defendant was an ``organizer or leader'' in a criminal activity
that involved five or more participants or was otherwise extensive, 3
levels if the defendant was a ``manager or supervisor (but not an
organizer or leader)'' of such a criminal activity, and 2 levels if the
defendant was an organizer, leader, manager, or supervisor in any
criminal activity other than described above.
The Commentary to Sec. 3B1.1 defines the term ``participant'', see
Sec. 3B1.1, Application Note 1; provides guidance on assessing whether
the criminal history is ``otherwise extensive'', see Sec. 3B1.1,
Application Note 3; and provides guidance on distinguishing a
leadership role from one of mere supervision, see Sec. 3B1.1,
Application Note 4.
Among other things, the Commission is seeking to determine whether
there are application issues regarding Sec. 3B1.1 warranting a
Commission response.
Request for Comment
What changes, if any, should the Commission make to Sec. Sec.
3B1.1 and 3B1.2 as they apply to drug trafficking cases? For example,
should the Commission provide more specific guidance on when a
defendant in a drug trafficking case should receive an upward
adjustment for aggravating role or a downward adjustment for mitigating
role and on which level of adjustment should apply? If so, what should
that specific guidance be?
2. Firearms
Synopsis of Proposed Amendment: This proposed amendment amends the
guideline for international weapons trafficking, Sec. 2M5.2
(Exportation of Arms, Munitions, or Military Equipment or Services
Without Required Validated Export License). As described more fully
below, the proposed amendment provides higher penalties for certain
cases involving small arms crossing the border and more guidance on
cases involving ammunition crossing the border.
In addition to proposing these revisions to cross-border offenses
under Sec. 2M5.2, the Commission is conducting a more comprehensive
review of firearms offenses to determine whether changes to the primary
firearms guideline, Sec. 2K2.1 (Unlawful Receipt, Possession, or
Transportation of Firearms or Ammunition; Prohibited Transactions
Involving Firearms or Ammunition), may also be appropriate to address
concerns about firearms crossing the border. The complexity and scope
of the review is such that it likely could not be completed this year
(i.e., during the amendment cycle ending May 1, 2011), but the
Commission is considering what revisions, if any, to Sec. 2K2.1 and
related guidelines may be appropriate this year. This proposed
amendment concludes with issues for comment on what revisions, if any,
to Sec. 2K2.1 and related guidelines may be appropriate this year.
[[Page 3198]]
Cases Involving Cross-Border Trafficking in Small Arms or Ammunition
First, the proposed amendment amends Sec. 2M5.2 to narrow the
scope of the alternative base offense level of 14. This raises
penalties for certain cases involving cross-border trafficking of small
arms, because certain defendants who currently receive the alternative
base offense level of 14 would instead receive the higher alternative
base offense level of 26. The base offense level of 14 currently
applies ``if the offense involved only non-fully automatic small arms
(rifles, handguns, or shotguns) and the number of weapons did not
exceed ten.'' See Sec. 2M5.2(a)(1), (2). The proposed amendment would
reduce the threshold number of small arms in subsection (a)(2) from ten
to [two]-[five] and require that all such small arms be possessed
solely for personal use.
The proposed amendment also amends Sec. 2M5.2 to address cases in
which the defendant possesses ammunition, either in an ammunition-only
case or in a case involving ammunition and small arms. There appear to
be disparities in how Sec. 2M5.2 is being applied in these cases.
Under the proposed amendment, a defendant with ammunition would receive
the alternative base offense level of 14 if the ammunition consisted of
not more than [200]-[500] rounds of ammunition for small arms and was
possessed solely for personal use.
In addition, the proposed amendment provides factors for the court
to consider in determining whether the small arms were possessed solely
for personal use; these factors are similar to the factors used in
Sec. 2K2.1 in determining whether the downward adjustment at Sec.
2K2.1(b)(2) for ``lawful sporting purposes or collection'' applies. See
Sec. 2K2.1, comment. (n.6).
References in Appendix A (Statutory Index)
Finally, the proposed amendment amends Appendix A (Statutory Index)
to address certain offenses.
First, it amends Appendix A (Statutory Index) to expand the number
of guidelines to which offenses under 50 U.S.C. 1705 are referenced.
Section 1705 makes it unlawful to violate, attempt to violate, conspire
to violate, or cause a violation of any license, order, regulation, or
prohibition issued under the International Emergency Economic Powers
Act (50 U.S.C. 1701 et seq.). Any person who willfully commits,
willfully attempts or conspires to commit, or aids or abets in the
commission of such an unlawful act may be imprisoned for not more than
20 years. See 50 U.S.C. 1705(c). Appendix A (Statutory Index) currently
contains two separate entries: The criminal offense, 50 U.S.C. 1705, is
referenced to Sec. 2M5.3 (Providing Material Support or Resources to
Designated Foreign Terrorist Organizations or Specially Designated
Global Terrorists, or For a Terrorist Purpose), while another statute
that contains no criminal offense, 50 U.S.C. 1701, is referenced to
Sec. 2M5.3 as well as to Sec. Sec. 2M5.1 (Evasion of Export Controls;
Financial Transactions with Countries Supporting International
Terrorism) and 2M5.2 (Exportation of Arms, Munitions, or Military
Equipment or Services Without Required Validated Export License). The
proposed amendment revises the entry for 50 U.S.C. 1705 to include all
three guidelines, Sec. Sec. 2M5.1, 2M5.2, and 2M5.3, and deletes as
unnecessary the entry for 50 U.S.C. 1701. Conforming changes are made
to the Statutory Provisions part of the commentary to each of
Sec. Sec. 2M5.1, 2M5.2, and 2M5.3.
Second, the proposed amendment addresses a new offense created by
the Comprehensive Iran Sanctions, Accountability, and Divestment Act of
2010, Public Law 111-195. Section 103 of that Act (22 U.S.C. 8512)
makes it unlawful to import into the United States certain goods or
services of Iranian origin, or export to Iran certain goods, services,
or technology, and provides that the penalties under 50 U.S.C. 1705
apply to a violation. The proposed amendment amends Appendix A
(Statutory Index) to reference the new offense at 22 U.S.C. 8512 to
Sec. Sec. 2M5.1, 2M5.2, and 2M5.3.
Proposed Amendment
The Commentary to Sec. 2M5.1 captioned ``Statutory Provisions'' is
amended by inserting ``50 U.S.C. 1705;'' after ``2332d;''.
Section 2M5.2(a)(2) is amended by inserting ``(A)'' before ``non-
fully''; and by striking ``ten'' and inserting ``[two]-[five], (B)
ammunition for such small arms, and the number of rounds did not exceed
[200]-[500], or (C) both, and all such small arms and ammunition were
possessed solely for personal use''.
The Commentary to Sec. 2M5.2 captioned ``Statutory Provisions'' is
amended by inserting ``; 50 U.S.C. 1705'' after ``2780''.
The Commentary to Sec. 2M5.2 captioned ``Application Notes'' is
amended by redesignating Note 2 as Note 3; and by inserting after Note
1 the following:
``2. For purposes of subsection (a)(2), whether small arms and
ammunition were `possessed solely for personal use' is determined by
the surrounding circumstances. Relevant surrounding circumstances
include the amount and type of small arms and ammunition, the location
and circumstances of possession and actual use, the nature of the
defendant's criminal history (e.g., prior convictions for offenses
involving firearms), the intended destination, and the extent to which
possession was restricted by local law.''.
The Commentary to Sec. 2M5.3 captioned ``Statutory Provisions'' is
amended by striking ``Sec. 1701,''.
Appendix A (Statutory Index) is amended by inserting after the line
referenced to 22 U.S.C. 4221 the following:
``22 U.S.C. 8512 2M5.1, 2M5.2, 2M5.3'';
by striking the line referenced to 50 U.S.C. 1701;
and in the line referenced to 50 U.S.C. 1705 by inserting ``2M5.1,
2M5.2,'' before ``2M5.3''.
Issue for Comment
1. The Commission is conducting a review of firearms offenses to
determine whether changes to the primary firearms guideline, Sec.
2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or
Ammunition; Prohibited Transactions Involving Firearms or Ammunition)
may be appropriate to address concerns about firearms crossing the
border. Firearms that cross the border may be purchased away from the
border by a so-called ``straw purchaser'', then delivered to a firearms
trafficker and brought across the border. Concerns have been raised
that Sec. 2K2.1 and Sec. 2M5.2 do not comprehensively address these
activities and, in particular, that Sec. 2K2.1 does not adequately
address (1) offenses involving firearms crossing the border and (2)
offenses committed by ``straw purchasers''. The complexity and scope of
the review is such that it likely could not be completed this year
(i.e., during the amendment cycle ending May 1, 2011), but the
Commission is considering what revisions, if any, to Sec. 2K2.1 and
related guidelines may be appropriate this year.
Firearms Crossing the Border
The crossing of an international border is not currently used as a
factor in determining the offense level in Sec. 2K2.1. Instead, the
crossing of a border is accounted for in the guidelines in Sec. 2M5.2,
the guideline to which arms export offenses are referenced. Should the
crossing of a border be incorporated as a factor in Sec. 2K2.1? If so,
how? Are there aggravating or mitigating factors in
[[Page 3199]]
cases involving firearms crossing a border that the Commission should
take into account in the guidelines? If so, what are the factors, and
how should the Commission amend the guidelines to take them into
account?
In particular, should the Commission amend Sec. 2K2.1 to
incorporate the crossing of a border as the basis for a new alternative
base offense level, a new enhancement, a new upward departure
provision, or a new cross-reference (e.g., to Sec. 2M5.2), or some
combination of these? What should the amount of such a new alternative
base offense level or enhancement be?
One approach would be to provide a new enhancement in Sec. 2K2.1,
such as the following:
() If the defendant possessed any firearm or ammunition
while crossing or attempting to cross the border or otherwise departing
or attempting to depart the United States, or possessed or transferred
any firearm or ammunition with knowledge, intent, or reason to believe
that it would be transported out of the United States, increase by [2]-
[5] levels.
Should the Commission consider such an enhancement?
Another approach would be to amend one or more of the existing
provisions in Sec. 2K2.1 to provide higher penalties for cases
involving the crossing of a border. In particular, Sec. 2K2.1 has a 4-
level enhancement at subsection (b)(5) that applies if the defendant
engaged in the trafficking of firearms, and a 4-level enhancement (and
minimum offense level of 18) at subsection (b)(6) that applies if the
defendant used or possessed any firearm or ammunition in connection
with another felony offense, or possessed or transferred any firearm or
ammunition with knowledge, intent, or reason to believe that it would
be used or possessed in connection with another felony offense. Should
the Commission revise subsection (b)(5) or (b)(6), or both, to account
for cases in which firearms cross the border? For example, should the
Commission amend the commentary to Sec. 2K2.1 to specify that
subsection (b)(5) always applies in a case involving one or more
firearms crossing the border (e.g., a case in which the defendant
transported a firearm across the border or transferred a firearm to
another individual with knowledge or reason to believe that the firearm
would be transported across the border)? Should the Commission amend
subsection (b)(6) to raise the minimum offense level from 18 to 20?
If the Commission were to provide a new provision in Sec. 2K2.1 to
account for firearms crossing the border, how should that provision
interact with the specific offense characteristics in subsections
(b)(5) and (b)(6)? In particular, should all these provisions be
cumulative, or should they interact in some other way?
If the Commission were to make any such changes to Sec. 2K2.1,
what conforming changes, if any, should the Commission make elsewhere
in Sec. 2K2.1? What changes, if any, should the Commission make to
related guidelines--in particular, to Sec. 2K1.3 and Sec. 2M5.2--to
maintain proportionality?
Straw Purchasers
Defendants who operate as straw purchasers may be convicted under
any of several different statutes. One such statute is 18 U.S.C.
922(d), which makes it unlawful to sell or otherwise dispose of any
firearm or ammunition to any person knowing or having reasonable cause
to believe that the person meets any of nine statutory criteria. See 18
U.S.C. 922(d)(1)-(9). See also 18 U.S.C. 922(g), (n) (making it
unlawful for a person meeting any of the same nine criteria to
transport, possess, or receive a firearm or ammunition). Such a person
is referred to in the guidelines as a ``prohibited person''. See Sec.
2K2.1, comment. (n.3) (defining ``prohibited person'' as ``any person
described in 18 U.S.C. 922(g) or 922(n)''). The nine criteria that make
a person a ``prohibited person'' can be summarized as whether the
person is a (1) felon, (2) fugitive, (3) substance abuser, (4) mental
defective, (5) illegal alien, (6) person dishonorably discharged from
the Armed Forces, (7) person who has renounced U.S. citizenship, (8)
person under a restraining order not to engage in domestic violence, or
(9) person convicted of a misdemeanor crime of domestic violence. See
18 U.S.C. 922(d), (g), (n). A person convicted under section 922(d) is
subject to imprisonment for not more than 10 years. See 18 U.S.C.
924(a)(2).
A second statute used for straw purchasers is 18 U.S.C. 922(a)(6),
which makes it unlawful, in connection with the acquisition of or
attempted acquisition of any firearm or ammunition from a licensed
dealer, to knowingly make any false statement intended or likely to
deceive the dealer with respect to the lawfulness of the transaction. A
person convicted under section 922(a)(6) is subject to imprisonment for
not more than 10 years. See 18 U.S.C. 924(a)(2).
A third statute used for straw purchasers is 18 U.S.C.
924(a)(1)(A), which makes it unlawful to knowingly make any false
statement with respect to information required to be kept by a firearms
licensee or information required in applying for a firearms license. A
person convicted under section 924(a)(1)(A) is subject to imprisonment
for not more than 5 years. See 18 U.S.C. 924(a)(1).
All three of these statutes used for straw purchasers are
referenced to Sec. 2K2.1. The guideline assigns a base offense level
of 14 to cases involving prohibited persons, whether the defendant (A)
is a prohibited person or (B) is convicted under section 922(d) of
transferring to a prohibited person. See Sec. 2K2.1(a)(6)(A), (B). The
guideline assigns a base offense level of 12 for most offenses,
including convictions under sections 922(a)(6) and 924(a)(1)(A). See
Sec. 2K2.1(a)(7). Higher base offense levels may apply based on the
type of firearm involved or the defendant's criminal history.
Are the guidelines adequate as they apply to straw purchasers? If
not, what changes would be appropriate? Are there aggravating or
mitigating factors in cases involving straw purchasers that the
Commission should take into account in the guidelines? If so, what are
the factors, and how should the Commission amend the guidelines to take
them into account?
Should the Commission provide higher penalties for cases involving
straw purchasers? In particular, should the Commission raise by 2
levels the alternative base offense levels applicable to defendants
convicted of 18 U.S.C. 922(a)(6), 922(d), and 924(a)(1)(A)? Under such
an approach, the alternative base offense level in Sec. 2K2.1(a)(6)
would be raised from 14 to 16 (for cases in which the defendant is a
prohibited person as well as cases in which the defendant is convicted
under section 922(d) of transferring to a prohibited person). Also, a
new alternative base offense level of 14 would be established for
defendants convicted under 18 U.S.C. 922(a)(6) or 924(a)(1)(A).
As described above, a defendant convicted under section 922(d)
receives a higher base offense level (14 vs. 12) than a defendant
convicted under section 922(a)(6) or 924(a)(1)(A). How, if at all,
should the Commission revise Sec. 2K2.1 to address a case in which a
defendant convicted under section 922(a)(6) or 924(a)(1)(A) has engaged
in the same conduct as a defendant convicted under section 922(d)? One
approach would be to provide a new enhancement in Sec. 2K2.1, such as
the following:
() If the defendant is convicted under 18 U.S.C. 922(a)(6)
or 924(a)(1)(A) and the defendant sold or otherwise disposed of any
firearm or ammunition
[[Page 3200]]
to any person knowing or having reasonable cause to believe that the
person was a prohibited person, increase by 2 levels.
Should the Commission consider such an enhancement?
If the Commission were to make any such changes to Sec. 2K2.1,
what conforming changes, if any, should the Commission make elsewhere
in Sec. 2K2.1? What changes, if any, should the Commission make to
related guidelines--in particular, to Sec. 2K1.3 and Sec. 2M5.2--to
maintain proportionality?
Sec. 2M5.2
In addition to the changes in the proposed amendment, are there any
other aggravating or mitigating factors in cases involving firearms
trafficking that the Commission should take into account in Sec.
2M5.2? If so, what are the factors, and how should the Commission amend
Sec. 2M5.2 to take them into account? In particular, should the
Commission consider establishing in Sec. 2M5.2 a specific offense
characteristic similar to the specific offense characteristic in Sec.
2K2.1(b)(6), which provides a 4-level enhancement if the defendant used
or possessed any firearm or ammunition in connection with another
felony offense, or possessed or transferred any firearm or ammunition
with knowledge, intent, or reason to believe that it would be used or
possessed in connection with another felony offense?
3. Dodd-Frank Act
Synopsis of Proposed Amendment: The Dodd-Frank Wall Street Reform
and Protection Act, Public Law 111-203 (the ``Act''), contains two
directives to the Commission and created certain new offenses.
The proposed amendment responds to the directives in Part A and the
new offenses in Part B, as follows:
(A) Directives
Issue for Comment
1. The Act contained two directives to the Commission, one on
securities fraud, the other on bank fraud and other frauds relating to
financial institutions. Each directive requires the Commission to
``review and, if appropriate, amend'' the guidelines and policy
statements applicable to the offenses covered by the directive and
consider whether the guidelines appropriately account for the potential
and actual harm to the public and the financial markets from those
offenses. Each directive also requires the Commission to ensure that
the guidelines reflect (i) the serious nature of the offenses, (ii) the
need for deterrence, punishment, and prevention, and (iii) the
effectiveness of incarceration in furthering those objectives.
A. Directive on Securities Fraud
Section 1079A(a)(1)(A) of the Act directs the Commission to
``review and, if appropriate, amend'' the guidelines and policy
statements applicable to ``persons convicted of offenses relating to
securities fraud or any other similar provision of law, in order to
reflect the intent of Congress that penalties for the offenses under
the guidelines and policy statements appropriately account for the
potential and actual harm to the public and the financial markets from
the offenses.''
Section 1079A(a)(1)(B) of the Act provides that, in promulgating
any such amendment, the Commission shall--
(i) Ensure that the guidelines and policy statements, particularly
section 2B1.1(b)(14) and section 2B1.1(b)(17) (and any successors
thereto), reflect--
(I) The serious nature of the offenses described in subparagraph
(A);
(II) The need for an effective deterrent and appropriate punishment
to prevent the offenses; and
(III) The effectiveness of incarceration in furthering the
objectives described in subclauses (I) and (II);
(ii) Consider the extent to which the guidelines appropriately
account for the potential and actual harm to the public and the
financial markets resulting from the offenses;
(iii) Ensure reasonable consistency with other relevant directives
and guidelines and Federal statutes;
(iv) Make any necessary conforming changes to guidelines; and
(v) Ensure that the guidelines adequately meet the purposes of
sentencing, as set forth in section 3553(a)(2) of title 18, United
States Code.
B. Directive on Bank Frauds, Mortgage Frauds, and Other Frauds Relating
to Financial Institutions
Section 1079A(a)(2)(A) of the Act directs the Commission to
``review and, if appropriate, amend'' the guidelines and policy
statements applicable to ``persons convicted of fraud offenses relating
to financial institutions or federally related mortgage loans and any
other similar provisions of law, to reflect the intent of Congress that
the penalties for the offenses under the guidelines and policy
statements ensure appropriate terms of imprisonment for offenders
involved in substantial bank frauds or other frauds relating to
financial institutions.''
Section 1079A(a)(2)(B) of the Act provides that, in promulgating
any such amendment, the Commission shall--
(i) Ensure that the guidelines and policy statements reflect--
(I) The serious nature of the offenses described in subparagraph
(A);
(II) The need for an effective deterrent and appropriate punishment
to prevent the offenses; and
(III) The effectiveness of incarceration in furthering the
objectives described in subclauses (I) and (II);
(ii) Consider the extent to which the guidelines appropriately
account for the potential and actual harm to the public and the
financial markets resulting from the offenses;
(iii) Ensure reasonable consistency with other relevant directives
and guidelines and Federal statutes;
(iv) Make any necessary conforming changes to guidelines; and
(v) Ensure that the guidelines adequately meet the purposes of
sentencing, as set forth in section 3553(a)(2) of title 18, United
States Code.
C. Prior Commission Work
In conducting the reviews required by the directives, the
Commission is also studying its prior work in these areas. In 2001, for
example, after a multi-year review of economic crimes, the Commission
promulgated its ``Economic Crime Package,'' a six-part amendment to the
guidelines applicable to economic crimes. See USSG App. C, Amendment
617 (effective November 1, 2001). Among other things, the Economic
Crime Package consolidated the theft and fraud guidelines into a single
guideline, Sec. 2B1.1 (Theft, Property Destruction, and Fraud);
provided a 2-level enhancement for offenses involving 10 to 49 victims
and a 4-level enhancement for offenses involving 50 or more victims;
revised the definition of ``loss''; and revised and expanded the loss
table to account for higher loss amounts and ``provide substantial
increases in penalties for moderate and higher loss amounts.'' See id.
(Reason for Amendment).
In 2003, the Commission implemented directives relating to fraud
offenses, obstruction of justice offenses, and other economic crimes in
the Sarbanes-Oxley Act of 2002, Public Law 107-204. The directives
required the Commission to promulgate, under emergency amendment
authority, amendments addressing fraud offenses committed by officers
and directors of publicly traded companies; fraud offenses that
endanger the solvency or financial security of a substantial number of
victims; fraud offenses that
[[Page 3201]]
involve significantly greater than 50 victims; and obstruction of
justice offenses that involve destruction of evidence. The Commission
first promulgated a temporary, emergency amendment and then an
expanded, permanent amendment. See USSG App. C, Amendments 647
(effective January 25, 2003) and 653 (effective November 1, 2003).
Among other things, the Commission provided a higher alternative base
offense level of level 7 if the defendant was convicted of an offense
referenced to Sec. 2B1.1 and the offense carried a statutory maximum
term of imprisonment of 20 years or more; expanded the loss table to
add enhancements of 28 and 30 levels for losses of more than $200
million and $400 million, respectively; added the reduction in value of
equity securities or other corporate assets as a factor to be
considered in determining loss; expanded the victims table to include a
6-level enhancement for offenses involving 250 or more victims;
expanded the specific offense characteristic on financially endangering
a financial institution to also apply when the offense financially
endangered either a substantial number of victims or an organization
that is publicly traded or has more than 1,000 employees; and added a
4-level enhancement if the offense involved a violation of securities
law or commodities law and the defendant was in certain specified
positions of heightened responsibility (e.g., a corporate officer or
director; a registered broker or dealer; an investment adviser; an
officer of director of a futures commission merchant; a commodities
trading advisor; a commodity pool operator). See id.
In reviewing the guidelines and offenses covered by the directives,
the Commission has observed that cases sentenced under Sec. 2B1.1
involving relatively large loss amounts calculated under the loss table
in subsection (b)(1) have a relatively high rate of non-government-
sponsored, below-range sentences. The Commission also has received
public comment and reviewed judicial opinions suggesting that a more
comprehensive review of Sec. 2B1.1 may be appropriate.
D. Possible Multi-Year Review
In light of this information, the Commission is considering
conducting a more comprehensive review of Sec. 2B1.1 and related
guidelines, not only of the specific offense characteristics referred
to in the directives (Sec. 2B1.1(b)(14) and (17)), but also of certain
other aspects of the guidelines (e.g., the loss table and the
definition of loss; the victims table and the definition of victim; and
the interactions between these tables and definitions). Given the
complexity and scope of such a review, the Commission anticipates that
such a review could not be completed in the amendment cycle ending May
1, 2011.
E. Response to Directives
Given that such a review likely could not be completed this year
(i.e., during the amendment cycle ending May 1, 2011), should the
Commission respond to the directives this year? If so, what, if any,
specific changes to the guidelines should be made this year to respond
to the directives in the Act?
1. Directive on Securities Fraud
The Commission requests comment regarding whether the Guidelines
Manual provides penalties for these offenses that appropriately account
for the potential and actual harm to the public and the financial
markets from these offenses and, if not, what changes to the Guidelines
Manual would be appropriate to respond to the directive in section
1079A(a)(1) of the Act.
Securities fraud is prosecuted under 18 U.S.C. 1348 (Securities and
commodities fraud), which makes it unlawful to knowingly execute, or
attempt to execute, a scheme or artifice (1) to defraud any person in
connection with a security or (2) to obtain, by means of false or
fraudulent pretenses, representations, or promises, any money or
property in connection with the purchase or sale of a security. The
statutory maximum term of imprisonment for an offense under section
1348 is 25 years. Offenses under section 1348 are referenced in
Appendix A (Statutory Index) to Sec. 2B1.1.
Securities fraud is also prosecuted under 18 U.S.C. 1350 (Failure
of corporate officers to certify financial reports), violations of the
provisions of law referred to in 15 U.S.C. 78c(a)(47), and violations
of the rules, regulations, and orders issued by the Securities and
Exchange Commission pursuant to those provisions of law. See Sec.
2B1.1, comment. (n.14(A)). In addition, there are cases in which the
defendant committed a securities law violation but is prosecuted under
a general fraud statute. In general, these offenses are likewise
referenced to Sec. 2B1.1.
Some of the more pertinent provisions in Sec. 2B1.1 addressing
these offenses are as follows:
(1) Section 2B1.1(a)(1) provides an alternative base offense level
of 7 (rather than 6) if the offense of conviction has a statutory
maximum term of imprisonment of 20 years or more.
(2) Section 2B1.1(b)(1) provides an enhancement of up to 30 levels
based on the amount of loss.
(3) Section 2B1.1(b)(2) provides an enhancement of up to 6 levels
if the offense involved 10 or more victims or was committed through
mass-marketing.
(4) Section 2B1.1(b)(14) provides an enhancement of either (A) 2
levels, if the defendant derived more than $1,000,000 in gross receipts
from one or more financial institutions, or (B) 4 levels, if the
offense (i) substantially jeopardized the safety and soundness of a
financial institution, (ii) substantially endangered the solvency or
financial security of an organization that (I) was a publicly traded
company or (II) had 1,000 or more employees, or (iii) substantially
endangered the solvency or financial security of 100 or more victims.
Subsection (b)(14)(C) provides that the cumulative adjustments from
(b)(2) and (b)(14)(B) shall not exceed 8 levels, except as provided in
subdivision (D). Subdivision (D) provides a minimum offense level of
level 24, if either (A) or (B) applies.
(5) Section 2B1.1(b)(17) provides an enhancement of 4 levels if the
offense involved a violation of securities law and the defendant was an
officer or director of a publicly traded company, a registered broker
or dealer (or person associated with a broker or dealer), or an
investment adviser (or person associated with an investment adviser).
Similarly, this enhancement also applies if the offense involved a
violation of commodities law and the defendant was an officer or
director of a futures commission merchant or an introducing broker, a
commodities trading advisor, or a commodity pool operator. A conviction
under a securities law or commodities law is not required for
subsection (b)(17) to apply. See Sec. 2B1.1, comment. (n.14(B)).
Are offenses relating to securities fraud adequately addressed by
these provisions? If not, how should the Commission amend the
Guidelines Manual to account for ``the potential and actual harm to the
public and the financial markets'' from these offenses? Should the
Commission increase the amount, or the scope, of the alternative base
offense level, the enhancements, or the minimum offense level, or any
combination of those? If so, what should the new amount or scope of
such provisions be?
Should the Commission amend the Commentary to the Guidelines Manual
to provide new departure provisions, or revise the scope of existing
departure provisions, applicable to such offenses? For example, should
the Commission specify that an upward departure would
[[Page 3202]]
be warranted in a case involving securities fraud or any similar
offense, if the disruption to a financial market is so substantial as
to have a debilitating impact on that market?
Similarly, should the Commission amend the Commentary to the
Guidelines Manual to provide additional guidance for such offenses? For
example, Application Note 12 to Sec. 2B1.1 lists factors to be
considered in determining whether to apply the enhancement in
subsection (b)(14) for jeopardizing a financial institution or
organization. Currently, the court is directed to consider whether the
financial institution or organization suffered one or more listed harms
as a result of the offense, such as becoming insolvent. Should the
Commission direct the court to consider any other factors, such as
whether one of the listed harms was likely to result from the offense
but did not result from the offense because of Federal Government
intervention?
2. Directive on Bank Frauds, Mortgage Frauds, and Other Frauds Relating
to Financial Institutions
The Commission requests comment regarding whether the Guidelines
Manual provides penalties for these offenses that appropriately account
for the potential and actual harm to the public and the financial
markets from these offenses and ensure appropriate terms of
imprisonment for offenders involved in substantial bank frauds or other
frauds relating to financial institutions and, if not, what changes to
the Guidelines Manual would be appropriate to respond to section
1079A(a)(2) of the Act.
The most specific statute on bank fraud is 18 U.S.C. 1344 (Bank
fraud), which makes it unlawful to knowingly execute a scheme or
artifice (1) to defraud a financial institution or (2) to obtain any of
the property of a financial institution by means of false or fraudulent
pretenses, representations, or promises. The statutory maximum term of
imprisonment for an offense under section 1344 is 30 years. Offenses
under section 1344 are referenced in Appendix A (Statutory Index) to
Sec. 2B1.1. Other statutes relating to financial institution fraud or
mortgage fraud include 18 U.S.C. 215, 656, 657, 1005, 1006, 1010, 1014,
1029, and 1033.
Some of the more pertinent provisions in Sec. 2B1.1 addressing
these offenses are as follows:
(1) Section 2B1.1(a)(1) provides an alternative base offense level
of 7 (rather than 6) if the offense of conviction has a statutory
maximum term of imprisonment of 20 years or more.
(2) Section 2B1.1(b)(1) provides an enhancement of up to 30 levels
based on the amount of loss.
(3) Section 2B1.1(b)(2) provides an enhancement of up to 6 levels
if the offense involved 10 or more victims or was committed through
mass-marketing.
(4) Section 2B1.1(b)(14) provides an enhancement of either (A) 2
levels, if the defendant derived more than $1,000,000 in gross receipts
from one or more financial institutions, or (B) 4 levels, if the
offense (i) substantially jeopardized the safety and soundness of a
financial institution, (ii) substantially endangered the solvency or
financial security of an organization that (I) was a publicly traded
company or (II) had 1,000 or more employees, or (iii) substantially
endangered the solvency or financial security of 100 or more victims.
Subsection (b)(14)(C) provides that the cumulative adjustments from
(b)(2) and (b)(14)(B) shall not exceed 8 levels, except as provided in
subdivision (D). Subdivision (D) provides a minimum offense level of
level 24, if either (A) or (B) applies.
Are bank frauds, mortgage frauds, and other frauds relating to
financial institutions adequately addressed by these provisions? If
not, how should the Commission amend the Guidelines Manual to account
for ``the potential and actual harm to the public and the financial
markets'' from these offenses and ``ensure appropriate terms of
imprisonment for offenders involved in substantial bank frauds or other
frauds relating to financial institutions''? Should the Commission
increase the amount, or the scope, of the alternative base offense
level, the enhancements, or the minimum offense level, or any
combination of those? If so, what should the new amount or scope of
such provisions be?
Should the Commission amend the Commentary to the Guidelines Manual
to provide new departure provisions, or revise the scope of existing
departure provisions, applicable to such offenses? For example, should
the Commission specify that an upward departure would be warranted in a
case involving financial institution fraud, fraud related to federally
related mortgage loans, or any similar offense, if the disruption to a
financial market is so substantial as to have a debilitating impact on
that market?
Similarly, should the Commission amend the Commentary to the
Guidelines Manual to provide additional guidance for such offenses? For
example, Application Note 12 to Sec. 2B1.1 lists factors to be
considered in determining whether to apply the enhancement in
subsection (b)(14) for jeopardizing a financial institution or
organization. Currently, the court is directed to consider whether the
financial institution or organization suffered one or more listed harms
as a result of the offense, such as becoming insolvent. Should the
Commission direct the court to consider any other factors, such as
whether one of the listed harms was likely to result from the offense
but did not result from the offense because of Federal government
intervention?
(B) New Offenses
Synopsis of Proposed Amendment: This part of the proposed amendment
responds to certain new offenses created by the Act.
First, the proposed amendment responds to the new offense at 12
U.S.C. 5382. Under authority granted by the Act, the Secretary of the
Treasury may make a ``systemic risk determination'' regarding a
financial company and, if the company fails the determination, may
commence the orderly liquidation of the company by appointing the
Federal Deposit Insurance Corporation as receiver. See sections 202-203
of the Act. Before making the appointment, the Secretary must either
obtain the consent of the company or petition under seal for district
court approval. The Act makes it a crime, classified to 12 U.S.C. 5382,
to recklessly disclose such a determination or the pendency of court
proceedings on such a petition. A person who violates 12 U.S.C. 5382 is
subject to imprisonment for not more than 5 years. The proposed
amendment references this new offense to Sec. 2H3.1 (Interception of
Communications; Eavesdropping; Disclosure of Certain Private or
Protected Information).
Second, the proposed amendment responds to the new offense at 15
U.S.C. 78jjj(d). The Act makes it a crime, classified to 15 U.S.C.
78jjj(d), for a person to falsely represent that he or she is a member
of the Security Investor Protection Corporation or that any person or
account is protected or eligible for protection under the Security
Investor Protection Act. See section 929V of the Act. A person who
violates section 78jjj(d) is subject to imprisonment for not more than
5 years. Section 78jjj also contains two other offenses, at subsections
(c)(1) and (c)(2), that are not currently referenced in Appendix A
(Statutory Index). The proposed amendment references all these offenses
under section 78jjj to Sec. 2B1.1 (Theft, Property Destruction, and
Fraud).
[[Page 3203]]
Proposed Amendment
Appendix A (Statutory Index) is amended by inserting after the line
referenced to 12 U.S.C. 4641 the following:
``12 U.S.C. 5382 2H3.1''; and by inserting after the line
referenced to 15 U.S.C. 78u(c) the following:
``15 U.S.C. 78jjj(c)(1),(2) 2B1.1
15 U.S.C. 78jjj(d) 2B1.1''.
4. Patient Protection Act
Synopsis of Proposed Amendment: This proposed amendment responds to
the Patient Protection and Affordable Care Act, Public Law 111-148 (the
``Act''), which contained a directive to the Commission and created a
new offense.
First, the proposed amendment responds to section 10606(a)(2) of
the Act, which directs the Commission to--
(A) Review the Federal Sentencing Guidelines and policy statements
applicable to persons convicted of Federal health care offenses;
(B) Amend the Federal Sentencing Guidelines and policy statements
applicable to persons convicted of Federal health care offenses
involving Government health care programs to provide that the aggregate
dollar amount of fraudulent bills submitted to the Government health
care program shall constitute prima facie evidence of the amount of the
intended loss by the defendant; and
(C) Amend the Federal Sentencing Guidelines to provide--
(i) A 2-level increase in the offense level for any defendant
convicted of a Federal health care offense relating to a Government
health care program which involves a loss of not less than $1,000,000
and less than $7,000,000;
(ii) A 3-level increase in the offense level for any defendant
convicted of a Federal health care offense relating to a Government
health care program which involves a loss of not less than $7,000,000
and less than $20,000,000;
(iii) A 4-level increase in the offense level for any defendant
convicted of a Federal health care offense relating to a Government
health care program which involves a loss of not less than $20,000,000;
and
(iv) If appropriate, otherwise amend the Federal Sentencing
Guidelines and policy statements applicable to persons convicted of
Federal health care offenses involving Government health care programs.
Section 10606(a)(3) of the Act requires the Commission, in
implementing this directive, to--
(A) Ensure that the Federal Sentencing Guidelines and policy
statements--
(i) Reflect the serious harms associated with health care fraud and
the need for aggressive and appropriate law enforcement action to
prevent such fraud; and
(ii) Provide increased penalties for persons convicted of health
care fraud offenses in appropriate circumstances;
(B) Consult with individuals or groups representing health care
fraud victims, law enforcement officials, the health care industry, and
the Federal judiciary as part of the review described in paragraph (2);
(C) Ensure reasonable consistency with other relevant directives
and with other guidelines under the Federal Sentencing Guidelines;
(D) Account for any aggravating or mitigating circumstances that
might justify exceptions, including circumstances for which the Federal
Sentencing Guidelines, as in effect on the date of enactment of this
Act, provide sentencing enhancements;
(E) Make any necessary conforming changes to the Federal Sentencing
Guidelines; and
(F) Ensure that the Federal Sentencing Guidelines adequately meet
the purposes of sentencing.
The proposed amendment implements the directive by adding two
provisions to Sec. 2B1.1 (Theft, Property Destruction, and Fraud),
both of which apply to cases in which ``the defendant was convicted of
a Federal health care offense involving a Government health care
program''.
The first provision is a tiered enhancement that applies in such
cases if the loss is more than $1,000,000. The enhancement would be
inserted at subsection (b)(8) of Sec. 2B1.1 and would provide 2 levels
if the loss was more than $1,000,000, 3 levels if the loss is more than
$7,000,000, and 4 levels if the loss is more than $20,000,000. This
tiered enhancement implements paragraph (2)(C) of the directive. To
``ensure reasonable consistency'' with the guidelines, as required by
section 10606(a)(3)(C) of the Act, the tiers of the enhancement apply
to loss amounts ``more than'' than the dollar amounts specified in the
directive, rather than to loss amounts ``not less than'' the dollar
amounts specified in the directive. The consistent practice in the
Guidelines Manual is to apply enhancements to loss amounts ``more
than'' dollar amounts. That practice is followed in Sec. 2B1.1, both
in the loss table in subsection (b)(1) and in the enhancement in
subsection (b)(14)(A). It is also followed by each of the guidelines
that utilize the loss table in Sec. 2B1.1(b)(1), as well as by other
guidelines with enhancements based on dollar amounts. See, e.g.,
Sec. Sec. 2B2.1(b)(2), 2B3.1(b)(7), 2B3.2(b)(2), 2B4.1(b)(2),
2R1.1(b)(2), 2S1.3(b)(2), 2T1.1(b)(1), 2T3.1(a), 2T4.1 (Tax Table).
The second provision is a new special rule in Application Note 3(F)
for determining intended loss in a case in which the defendant is
convicted of a Federal health care offense involving a Government
health care program. This new special rule implements paragraph (2)(B)
of the directive.
In addition, the proposed amendment specifies that ``Federal health
care offense'' has the same meaning as in 18 U.S.C. 24 and provides two
options for defining ``Government health care program'':
Option 1 provides a list of programs consistent with section 1501
of the Act, which lists the ``Government sponsored programs'' that
provide health care coverage satisfying the individual mandate
established by the Act. See 26 U.S.C. 5000A(f)(1)(A), as established by
section 1501 of the Act.
Option 2 provides a definition consistent with section 1128B of the
Social Security Act (42 U.S.C. 1320a-7b), which defines ``Federal
health care program'' to mean (1) any plan or program that provides
health benefits, whether directly, through insurance, or otherwise,
which is funded directly, in whole or in part, by the United States
Government (other than the health insurance program under chapter 89 of
title 5, United States Code); or (2) any State health care program, as
defined in 42 U.S.C. 1320a-7(h).
An issue for comment is also included on whether a different
definition of ``Government health care program'' should be used.
Second, the proposed amendment responds to section 6601 of the Act,
which established a new offense at 29 U.S.C. 1149 for making a false
statement in connection with the marketing or sale of a multiple
employer welfare arrangement under the Employee Retirement Income
Security Act. A person who commits this new offense is subject to a
term of imprisonment of not more than 10 years. The proposed amendment
references this new offense in Appendix A (Statutory Index) to Sec.
2B1.1.
Proposed Amendment
Section 2B1.1(b) is amended by redesignating subdivisions (8)
through (17) as subdivisions (9) through (18); by inserting after
subdivision (7) the following:
``(8) If the defendant was convicted of a Federal health care
offense involving a Government health care program and the loss under
subsection (b)(1) was (A)
[[Page 3204]]
more than $1,000,000, increase by 2 levels; (B) more than $7,000,000,
increase by 3 levels; or (C) more than $20,000,000, increase by 4
levels.'';
and in subdivision (15)(C), as redesignated by this amendment, by
striking ``(14)'' and inserting ``(15)''.
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is
amended in Note 1 by inserting after the paragraph that begins ``
`Equity securities' '' the following:
`` `Federal health care offense' has the meaning given that term in
18 U.S.C. 24.'';
and inserting after the paragraph that begins `` `Foreign
instrumentality' '' the following:
[Option 1:
`` `Government health care program' means (A) the Medicare program
under part A of title XVIII of the Social Security Act, (B) the
Medicaid program under title XIX of the Social Security Act, (C) the
CHIP program under title XXI of the Social Security Act, (D) the
TRICARE for Life program, (E) the veteran's health care program under
chapter 17 of title 38, United States Code, or (F) a health plan under
section 2504(e) of title 22, United States Code (relating to Peace
Corps volunteers).''.]
[Option 2:
`` `Government health care program' means (A) any plan or program
that provides health benefits, whether directly, through insurance, or
otherwise, which is funded directly, in whole or in part, by the United
States Government (other than the health insurance program under
chapter 89 of title 5, United States Code); or (B) any State health
care program, as defined in 42 U.S.C. 1320a-7(h).''.]
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is
amended in Note 3(F) by adding at the end the following:
``(viii) Federal Health Care Offenses Involving Government Health
Care Programs.--In a case in which the defendant is convicted of a
Federal health care offense involving a Government health care program,
the aggregate dollar amount of fraudulent bills submitted to the
Government health care program shall constitute prima facie evidence of
the amount of the intended loss, i.e., is evidence sufficient to
establish the amount of the intended loss, if not rebutted.'';
in Note 7 by striking ``(8)'' and inserting ``(9)'' each place it
appears;
in Note 8 by striking ``(9)'' and inserting ``(10)'' each place it
appears;
in Note 9 by striking ``(10)'' and inserting ``(11)'' each place it
appears;
in Note 10 by striking ``(12)'' and inserting ``(13)'' in both
places;
in Note 11 by striking ``(14)'' and inserting ``(15)'' in both
places;
in Note 12 by striking ``(14)'' and inserting ``(15)'' each place
it appears;
in Note 13 by striking ``(16)'' and inserting ``(17)'' each place
it appears; and by striking ``(14)'' and inserting ``(15)'' in both
places;
in Note 14 by striking ``(b)(17)'' and inserting ``(b)(18)'' each
place it appears;
and in Note 19 by striking ``(16)'' and inserting ``(17)''; and by
striking ``(11)'' and inserting ``(12)''.
The Commentary to Sec. 2B1.1 captioned ``Background'' is amended
by inserting after the paragraph that begins ``Subsection (b)(6)'' the
following:
``Subsection (b)(8) implements the directive to the Commission in
section 10606 of Public Law 111-148.'';
in the paragraph that begins ``Subsection (b)(8)(D)'' by striking
``(8)'' and inserting ``(9)'';
in the paragraph that begins ``Subsection (b)(9)'' by striking
``(9)'' and inserting ``(10)'';
in the paragraph that begins ``Subsections (b)(10)(A)(i)'' by
striking ``(10)'' and inserting ``(11)'';
in the paragraph that begins ``Subsection (b)(10)(C)'' by striking
``(10)'' and inserting ``(11)'';
in the paragraph that begins ``Subsection (b)(11)'' by striking
``(11)'' and inserting ``(12)'';
in the paragraph that begins ``Subsection (b)(13)(B)'' by striking
``(13)'' and inserting ``(14)'';
in the paragraph that begins ``Subsection (b)(14)(A)'' by striking
``(14)'' and inserting ``(15)'';
in the paragraph that begins ``Subsection (b)(14)(B)(i)'' by
striking ``(14)'' and inserting ``(15)'';
in the paragraph that begins ``Subsection (b)(15)'' by striking
``(15)'' and inserting ``(16)'';
and in the paragraph that begins ``Subsection (b)(16)'' by striking
``(16)'' and inserting ``(17)'' in both places.
Appendix (Statutory Index) is amended in the line referenced to 29
U.S.C. 1131 by inserting ``(a)'' after ``1131'';
and by inserting after the line referenced to 29 U.S.C. 1141 the
following:
``29 U.S.C. 1149 2B1.1''.
Issue for Comment:
1. The proposed amendment provides two options for defining the
term ``Government health care program''. Which, if any, of these
options should the Commission use? If the Commission were to use one of
these options, should the Commission add other specific programs or
categories of programs to the definition and, if so, what programs or
categories of programs? For example, are there other Federal or State
programs that should be included? Alternatively, should private health
care programs also be included?
5. Supervised Release
Synopsis of Proposed Amendment: The proposed amendment would make
revisions to the supervised release guidelines, Sec. 5D1.1 (Imposition
of a Term of Supervised Release) and Sec. 5D1.2 (Term of Supervised
Release). Section 5D1.1 directs the court to order a term of supervised
release when a sentence of imprisonment of more than one year is
imposed, or when required by statute. For cases in which the court
decides to impose a term of supervised release, Sec. 5D1.2 provides
both a minimum and a maximum length of the term. Specifically, Sec.
5D1.2 requires a minimum of three years and a maximum of five years, if
a Class A or B felony; a minimum of two years and a maximum of three
years, if a Class C or D felony; and a term of precisely one year, if a
Class E felony or Class A misdemeanor.
The Commission is considering whether revisions to the supervised
release guidelines would help courts and probation offices focus
limited supervision resources on offenders who need supervision. See,
e.g., Johnson v. United States, 529 U.S. 694, 709 (2000) (``Prisoners
may, of course, vary in the degree of help needed for successful
reintegration. Supervised release [has given] district courts the
freedom to provide postrelease supervision for those, and only those,
who needed it. * * * Congress aimed * * * to use the district court's
discretionary judgment to allocate supervision to those releasees who
needed it most.''); S. Rep. No. 98-225, p. 125 (``[P]robation officers
will only be supervising those releasees from prison who actually need
supervision, and every releasee who does need supervision will receive
it.''). The Commission's recent report, Federal Offenders Sentenced to
Supervised Release (July 2010), found that supervised release is
imposed in almost every case, including in more than 99 percent of
cases where the guidelines require imposition of a term of supervised
release but there is no statutory requirement to do so. When supervised
release is imposed, the length of the term is within the ranges
provided by Sec. 5D1.2 in over 94 percent of cases. Id. at 52, 57.
The Commission is also reviewing the imposition of supervised
release on non-citizens, who represent a significant
[[Page 3205]]
percentage of the overall population of Federal offenders. See 2009
Sourcebook of Federal Sentencing Statistics 19 (Table 9, showing 44.7%
of Federal offenders in fiscal year 2009 were non-citizens). Supervised
release is imposed in more than 91 percent of cases in which the
defendant is a non-citizen. See Federal Offenders Sentenced to
Supervised Release at 60. However, a ``vast number of non-citizens
convicted of crimes'' are ``now virtually inevitable'' to be deported,
Padilla v. Kentucky, 130 S. Ct. 1473, 1478 (2010), and likely would
face prosecution for a new offense if they were to return illegally to
the United States.
Section 5D1.1
The proposed amendment provides two options for revising Sec.
5D1.1 that would reduce the number of cases in which the court is
required by the guidelines to impose supervised release:
Under Option 1A, the court would be required to order a term of
supervised release when a sentence of imprisonment of 15 months or more
is imposed, or when required by statute. An issue for comment is also
included on whether the Commission should instead set this threshold at
a higher number of months of imprisonment.
Under Option 1B, the court would be required to order a term of
supervised release only when required by statute.
The proposed amendment would also add a provision to Sec. 5D1.1
indicating that for certain deportable aliens, the court ordinarily
should not impose a term of supervised release unless required by
statute.
Section 5D1.2
The proposed amendment provides two options for revising Sec.
5D1.2 that would lower or eliminate the minimum lengths required by
that guideline for a term of supervised release:
Under Option 2A, the minimum term for a Class A, B, C, or D felony
would be one year, and the guidelines would impose no minimum term for
a Class E felony or a Class A misdemeanor.
Under Option 2B, the guidelines would impose no minimum term for
any felony or misdemeanor.
Both Options 2A and 2B would preserve Sec. 5D1.2(b) and (c), which
apply to cases in which the length of the term of supervised release is
governed by specific statutory provisions. While the proposed amendment
would affect only the minimum terms, an issue for comment is included
on whether the maximum terms should also be lowered.
In addition, the proposed amendment inserts commentary into
Sec. Sec. 5D1.1 and 5D1.2 to provide guidance on what a court should
consider in deciding whether to order a term of supervised release and,
if so, how long such a term should be. Finally, the proposed amendment
makes technical and conforming changes to Sec. Sec. 5D1.1 and 5D1.2 to
reflect requirements imposed by the supervised release statute, 18
U.S.C. 3583.
Proposed Amendment
[Option 1A:
Section 5D1.1(a) is amended by inserting ``when required by statute
(see 18 U.S.C. 3583(a)) or, except as provided in subsection (c),''
after ``follow imprisonment''; by striking ``more than one year is
imposed, or when required by statute'' and inserting ``15 months or
more is imposed''.
Section 5D1.1(b) is amended by adding at the end the following:
``See 18 U.S.C. 3583(a).''.
Section 5D1.1 is amended by adding at the end the following:
``(c) The court ordinarily should not impose a term of supervised
release in a case in which supervised release is not required by
statute and the defendant is a deportable alien who likely will be
deported after imprisonment and likely will not be permitted to return
to the United States in a legal manner.''.
The Commentary to Sec. 5D1.1 captioned ``Application Notes'' is
amended in Note 1 by inserting ``Application of Subsection (a).--''
before ``Under subsection (a)''; by striking ``more than one year'' and
inserting ``15 months or more''; by striking ``it determines'' and all
that follows through ``by statute.'' and inserting the following:
``supervised release is not required by statute and the court
determines, after considering the factors set forth in Note 3, that
supervised release is not necessary.'';
in Note 2 by inserting ``Application of Subsection (b).--'' before
``Under subsection (b)''; by striking ``of one year or less for any of
the reasons set forth in Application Note 1'' and inserting ``in any
other case, after considering the factors set forth in Note 3''.
The Commentary to Sec. 5D1.1 captioned ``Application Notes'' is
amended by adding at the end the following:
``3. Factors to Be Considered.--
(A) Statutory Factors.--In determining whether to impose a term of
supervised release, the court is required by statute to consider, among
other factors:
(i) The nature and circumstances of the offense and the history and
characteristics of the defendant;
(ii) The need to afford adequate deterrence to criminal conduct, to
protect the public from further crimes of the defendant, and to provide
the defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective manner;
(iii) The need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar
conduct; and
(iv) The need to provide restitution to any victims of the offense.
See 18 U.S.C. 3583(c).
(B) Criminal History.--The court should give particular
consideration to the defendant's criminal history (which is one aspect
of the `history and characteristics of the defendant' in subparagraph
(A)(i), above). Research indicates that, on average, the lower the
criminal history category a defendant has, the greater the likelihood
that the defendant will successfully complete supervision without
revocation. Therefore, in general, the more serious the defendant's
criminal history, the greater the need for supervised release.
(C) Substance Abuse.--In a case in which a defendant sentenced to
imprisonment is an abuser of controlled substances or alcohol, it is
`highly recommended' that a term of supervised release also be imposed.
See Sec. 5H1.4 (Physical Condition, Including Drug or Alcohol
Dependence or Abuse; Gambling Addiction).
4. Guideline Ranges in Zones B and C.--In a case in which the
applicable guideline range is in Zone B or C of the Sentencing Table, a
term of supervised release with a condition that substitutes community
confinement or home detention may be imposed to satisfy part of the
minimum term of imprisonment. See Sec. 5C1.1(c)(2), (d)(2).
5. Application of Subsection (c).--In a case in which the defendant
is a deportable alien specified in subsection (c) and supervised
release is not required by statute, the court ordinarily should not
impose a term of supervised release. Unless such a defendant legally
returns to the United States, supervised release is unnecessary. If
such a defendant illegally returns to the United States, the need to
afford adequate deterrence and protect the public ordinarily is
adequately served by a new prosecution.]''.
[Option 1B:
Section 5D1.1(a) is amended by striking ``when a sentence of
imprisonment of more than one year is imposed, or''; and by adding at
the end the following: ``See 18 U.S.C. 3583(a).''.
Section 5D1.1(b) is amended by adding at the end the following:
``See 18 U.S.C. 3583(a).''.
[[Page 3206]]
The Commentary to Sec. 5D1.1 captioned ``Application Notes'' is
amended by striking Notes 1 and 2 and inserting the following:
``1. Application of Subsection (a).-- Under subsection (a), the
court is required to impose a term of supervised release to follow
imprisonment if a term of supervised release is required by a specific
statute.
2. Application of Subsection (b).--Under subsection (b), the court
may impose a term of supervised release to follow a term of
imprisonment in any other case, after considering the factors set forth
in Note 3.'';
and by adding at the end the following:
``3. Factors to Be Considered.--
(A) Statutory Factors.--In determining whether to impose a term of
supervised release, the court is required by statute to consider, among
other factors:
(i) The nature and circumstances of the offense and the history and
characteristics of the defendant;
(ii) The need to afford adequate deterrence to criminal conduct, to
protect the public from further crimes of the defendant, and to provide
the defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective manner;
(iii) The need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar
conduct; and
(iv) The need to provide restitution to any victims of the offense.
See 18 U.S.C. 3583(c).
(B) Criminal History.--The court should give particular
consideration to the defendant's criminal history (which is one aspect
of the `history and characteristics of the defendant' in subparagraph
(A)(i), above). Research indicates that, on average, the lower the
criminal history category a defendant has, the greater the likelihood
that the defendant will successfully complete supervision without
revocation. Therefore, in general, the more serious the defendant's
criminal history, the greater the need for supervised release.
(C) Substance Abuse.--In a case in which a defendant sentenced to
imprisonment is an abuser of controlled substances or alcohol, it is
`highly recommended' that a term of supervised release also be imposed.
See Sec. 5H1.4 (Physical Condition, Including Drug or Alcohol
Dependence or Abuse; Gambling Addiction).
(D) Certain Deportable Aliens.--The court ordinarily should not
impose a term of supervised release in a case in which supervised
release is not required by statute and the defendant is a deportable
alien who likely will be deported after imprisonment and likely will
not be permitted to return to the United States in a legal manner.
Unless such a defendant legally returns to the United States,
supervised release is unnecessary. If such a defendant illegally
returns to the United States, the need to afford adequate deterrence
and protect the public ordinarily is adequately served by a new
prosecution.
4. Guideline Ranges in Zones B and C.--In a case in which the
applicable guideline range is in Zone B or C of the Sentencing Table, a
term of supervised release with a condition that substitutes community
confinement or home detention may be imposed to satisfy part of the
minimum term of imprisonment. See Sec. 5C1.1(c)(2), (d)(2).]''.
[Option 2A:
Section 5D1.2(a) is amended in subdivision (1) by striking ``three
years'' and inserting ``[one] year''; and by adding at the end the
following: ``See 18 U.S.C. 3583(b)(1).''.
Section 5D1.2(a) is amended in subdivision (2) by striking ``two
years'' and inserting ``[one] year''; and by adding at the end the
following: ``See 18 U.S.C. 3583(b)(2).''.]
[Option 2B:
Section 5D1.2(a) is amended in subdivision (1) by striking ``At
least three years but not'' and inserting ``Not''; and by adding at the
end the following: ``See 18 U.S.C. 3583(b)(1).''.
Section 5D1.2(a) is amended in subdivision (2) by striking ``At
least two years but not'' and inserting ``Not''; and by adding at the
end the following: ``See 18 U.S.C. 3583(b)(2).''.]
Section 5D1.2(a) is amended in subdivision (3) by striking ``One''
and inserting ``Not more than one''; and by adding at the end the
following: ``See 18 U.S.C. 3583(b)(3).''.
Section 5D1.2(b) is amended by striking ``subdivisions'' and
inserting ``subsections''; by striking ``not less than'' and all that
follows through ``offense is''; and by striking subdivisions (1) and
(2) and inserting the following:
``(1) Any term of years or life, if the offense is any offense
listed in 18 U.S.C. 2332b(g)(5)(B), see 18 U.S.C. 3583(j); or
(2) any term of years not less than 5 or life, if the offense is
any offense under section 1201 involving a minor victim, or any offense
under 18 U.S.C. 1591, 2241, 2242, 2243, 2244, 2245, 2250, 2251, 2251A,
2252, 2252A, 2260, 2421, 2422, 2423, or 2425, see 18 U.S.C. 3583(k).''.
The Commentary to Sec. 5D1.2 captioned ``Application Notes'' is
amended in Note 3 by striking ``or the guidelines''.
The Commentary to Sec. 5D1.2 captioned ``Application Notes'' is
amended by adding at the end the following:
``4. Factors Considered.--The factors to be considered in
determining the length of a term of supervised release are the same as
the factors considered in determining whether to impose such a term.
See 18 U.S.C. 3583(c); Application Note 3 to Sec. 5D1.1 (Imposition of
a Term of Supervised Release). The court should ensure that the term
imposed on the defendant is long enough to address the purposes for
imposing supervised release on the defendant. Research indicates that
the majority of defendants who violate a condition of supervised
release do so during the first year of the term of supervised release.
5. Early Termination and Extension.--The court has authority to
terminate or extend a term of supervised release. See 18 U.S.C.
3583(e)(1), (2). The court is encouraged to exercise this authority in
appropriate cases. The prospect of exercising this authority is a
factor the court may wish to consider in determining the length of a
term of supervised release. For example, the court may wish to consider
early termination of supervised release if the defendant is an abuser
of narcotics, other controlled substances, or alcohol who, while on
supervised release, successfully completes a treatment program, thereby
reducing the risk to the public from further crimes of the
defendant.''.
Issues for Comment
1. The proposed amendment to Sec. 5D1.1 contains an Option 1A
under which the court would be required to order a term of supervised
release when a sentence of imprisonment of 15 months or more is
imposed, or when required by statute. A possible basis for setting this
threshold at 15 months (rather than 12 months, as the guideline
currently provides) is to reflect the Commission's recent amendment to
the Sentencing Table in Chapter Five, Part A. See Appendix C, Amendment
738 (effective November 1, 2010). Before that amendment, a defendant in
Zone D of the Sentencing Table was required to be sentenced to at least
12 months imprisonment; the amendment changed that threshold to 15
months imprisonment.
Should the Commission instead set this threshold at a number of
months of imprisonment higher than 15 months, such as 24 months or 36
months? If so, what would be the basis for doing so?
[[Page 3207]]
2. The proposed amendment to Sec. 5D1.2 would either reduce or
eliminate the minimum terms of supervised release required by the
guidelines, but would not affect the maximum terms of supervised
release required by the guidelines or by statute. If the defendant was
convicted of a Class A or B felony, the maximum term of supervised
release is five years; for a Class C or D felony, three years; and for
a Class E felony or a Class A misdemeanor, one year. See Sec.
5D1.2(a)(1), (2), (3).
Should the Commission lower the maximum terms of supervised release
required by these provisions? If so, what lower maximum terms of
supervised release should the Commission provide? What would be the
basis for doing so?
6. Illegal Reentry
Synopsis of Proposed Amendment: Section 2L1.2 (Unlawfully Entering
or Remaining in the United States) contains a specific offense
characteristic at subsection (b)(1) under which a defendant receives an
enhancement if the defendant previously was deported, or unlawfully
remained in the United States, after a conviction. The amount of the
enhancement may be 16 levels, 12 levels, 8 levels, or 4 levels,
depending on the nature of the underlying offense. This proposed
amendment would amend Sec. 2L1.2 to provide a limitation on the use of
convictions under subsections (b)(1)(A) and (B). Specifically, such a
conviction would receive the 16- or 12-level enhancement, as
applicable, if the conviction receives criminal history points under
Chapter Four (Criminal History and Criminal Livelihood), and 8 levels
if it does not. Conforming changes to the Commentary are also made.
The proposed amendment responds to case law and comments received
regarding the enhancement in Sec. 2L1.2(b)(1) when a defendant's
predicate offense would not qualify for criminal history points under
Chapter Four. Compare United States v. Amezcua-Vasquez, 567 F.3d 1050,
1055 (9th Cir. 2009) (defendant had two convictions that were 25 years
old; court stated that the 16-level enhancement in Sec. 2L1.2(b)(1)(A)
``addresses the seriousness of the offense'' but ``does not * * *
justify increasing a defendant's sentence by the same magnitude
irrespective of the age of the prior conviction at the time of
reentry'' [emphasis in original]); with United States v. Chavez-Suarez,
597 F.3d 1137, 1139 (10th Cir. 2010) (defendant had a conviction that
was 11 years old; court discussed Amezcua-Vasquez but was ``not
convinced that this conviction was so stale'' as to require the
sentencing court to vary downward from the 16-level enhancement).
The guidelines account for the age of a prior conviction in Chapter
Four, which specifies when a conviction is too old to receive criminal
history points. See Sec. 4A1.2(e). The guidelines contain several
conviction-based enhancements that depend on whether the conviction
receives criminal history points. See, e.g., Sec. 2K1.3 (Unlawful
Receipt, Possession, or Transportation of Explosive Materials;
Prohibited Transactions Involving Explosive Materials), comment. (n.9);
Sec. 2K2.1 (Unlawful Receipt, Possession, or Transportation of
Firearms or Ammunition; Prohibited Transactions Involving Firearms or
Ammunition), comment. (n.10); Sec. 4B1.2 (Definitions of Terms Used in
Section 4B1.1), comment. (n.3). The proposed amendment would reduce the
16- and 12-level enhancement when the prior conviction is too old to
qualify for criminal history points, but would not entirely eliminate
the enhancement. See, e.g., Amezcua-Vasquez, 567 F.3d at 1055
(acknowledging that it is ``reasonable to take some account of an
aggravated felony, no matter how stale, in assessing the seriousness of
an unlawful reentry into the country''). See also id. at 1055 (in
certain cases in which the prior conviction is ``stale'', an
enhancement may be appropriate to address the ``seriousness'' of the
prior conviction but need not be of the ``same magnitude''); Chavez-
Suarez, 597 F.3d at 1139 (same).
Proposed Amendment
Section 2L1.2(b)(1)(A) is amended by inserting ``if the conviction
receives criminal history points under Chapter Four or by 8 levels if
the conviction does not receive criminal history points'' after ``16
levels''.
Section 2L1.2(b)(1)(B) is amended by inserting ``if the conviction
receives criminal history points under Chapter Four or by 8 levels if
the conviction does not receive criminal history points'' after ``12
levels''.
The Commentary to 2L1.2 captioned ``Application Notes'' is amended
in Note 1 by adding at the end the following:
``(C) Prior Convictions.--In determining the amount of an
enhancement under subsection (b)(1), note that the amounts in
subsections (b)(1)(A) and (B) depend on whether the conviction receives
criminal history points under Chapter Four (Criminal History and
Criminal Livelihood), while the amounts in subsections (b)(1)(C), (D),
and (E) apply without regard to whether the conviction receives
criminal history points.
A conviction taken into account under subsection (b)(1) is not
excluded from consideration of whether that conviction receives
criminal history points under Chapter Four.''.
The Commentary to 2L1.2 captioned ``Application Notes'' is amended
striking Note 6 and redesignating Notes 7 and 8 as Notes 6 and 7.
7. Child Support
Synopsis of Proposed Amendment: This proposed amendment addresses a
circuit conflict on whether a defendant convicted of an offense
involving the willful failure to pay court-ordered child support (e.g.,
a violation of 18 U.S.C. 228) and sentenced under Sec. 2B1.1 (Theft,
Property Destruction, and Fraud) receives the specific offense
characteristic in Sec. 2B1.1(b)(8)(C).
Offenses under section 228 are referenced in Appendix A (Statutory
Index) to Sec. 2J1.1 (Contempt), which directs the court to apply
Sec. 2X5.1 (Other Offenses), which directs the court to apply the most
analogous offense guideline. The commentary to Sec. 2J1.1 provides
that, in a case involving a violation of section 228, the most
analogous offense guideline is Sec. 2B1.1. See Sec. 2J1.1, comment.
(n.2).
The specific offense characteristic in Sec. 2B1.1(b)(8)(C) applies
if the offense involved ``a violation of any prior, specific judicial
or administrative order, injunction, decree, or process not addressed
elsewhere in the guidelines''. It provides an enhancement of 2 levels
and a minimum offense level of level 10.
Some circuits have disagreed over whether it is impermissible
double counting to apply Sec. 2B1.1(b)(8)(C) in a case involving a
violation of section 228. The Second and Eleventh Circuits have held
that applying Sec. 2B1.1(b)(8)(C) in a section 228 case is
permissible, because the failure to pay the child support and the
violation of the order are distinct harms. See United States v.
Maloney, 406 F.3d 149, 153-54 (2d Cir. 2005); United States v.
Phillips, 363 F.3d 1167, 1169 (11th Cir. 2004). However, the Seventh
Circuit has held that applying Sec. 2B1.1(b)(8)(C) in a section 228
case is impermissible double counting. See United States v. Bell, 598
F.3d 366 (7th Cir. 2010) (``to apply both the cross-reference for Sec.
228 and the enhancement for violation of a court or administrative
order is impermissible double counting'').
The proposed amendment resolves the conflict by amending the
commentary to Sec. 2J1.1. Two bracketed options are provided. The
first option
[[Page 3208]]
specifies that, in a case involving a violation of section 228, apply
Sec. 2B1.1(b)(8)(C); the second option specifies that, in such a case,
do not apply Sec. 2B1.1(b)(8)(C).
Proposed Amendment
The Commentary to Sec. 2J1.1 captioned ``Application Notes'' is
amended in Note 2 by inserting ``In such a case, [apply][do not apply]
Sec. 2B1.1(b)(8)(C) (pertaining to a violation of a prior, specific
judicial order).'' after ``failed to pay.''.
8. 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 updates the policy statement at
Sec. 6B1.2 (Standards for Acceptance of Plea Agreements) in light of
United States v. Booker, 543 U.S. 220 (2005), and the Federal Judiciary
Administrative Improvements Act of 2010, Public Law 111-174 (enacted
May 27, 2010). The proposed amendment amends Sec. 6B1.2 to provide
standards for acceptance of plea agreements when the sentence is
outside the applicable guideline range. The proposed amendment also
responds to the Federal Judiciary Administrative Improvements Act of
2010, which amended 18 U.S.C. 3553(c)(2) to require that the reasons
for a sentence be set forth in the statement of reasons form (rather
than in the judgment and commitment order). The proposed amendment
amends both Sec. 6B1.2 and Sec. 5K2.0(e) to reflect this statutory
change.
Part B of the proposed amendment responds to the Coast Guard
Authorization Act of 2010, Public Law 111-281 (enacted October 15,
2010), which provided statutory sentencing enhancements for certain
offenses under 18 U.S.C. 2237 (Criminal sanctions for failure to heave
to, obstruction of boarding, or providing false information) and
created a new criminal offense at 33 U.S.C. 3851.
The proposed amendment addresses the section 2237 offenses by
expanding the range of guidelines to which certain section 2237
offenses are referenced. Section 2237 makes it unlawful for--
The operator of a vessel to knowingly fail to obey a law
enforcement order to heave to, see 18 U.S.C. 2237(a)(1);
a person on board a vessel to forcibly interfere with a law
enforcement boarding or other law enforcement action, or to resist
arrest, see 18 U.S.C. 2237(a)(2)(A); or
a person on board a vessel to provide materially false
information to a law enforcement officer during a boarding regarding
the vessel's destination, origin, ownership, registration,
nationality, cargo, or crew, see 18 U.S.C. 2237(a)(2)(B).
All three of these offenses are punishable by not more than 5 years
of imprisonment. The first two are referenced in Appendix A (Statutory
Index) to Sec. 2A2.4 (Obstructing or Impeding Officers); the third is
referenced to Sec. 2B1.1 (Theft, Property Destruction, and Fraud).
However, the Coast Guard Authorization Act of 2010 provided statutory
sentencing enhancements that apply to persons convicted under either of
the first two offenses under section 2237 (i.e., the two offenses
referenced to Sec. 2A2.4; the sentencing enhancements do not apply to
the offense referenced to Sec. 2B1.1). The proposed amendment
addresses these new statutory sentencing enhancements by referencing
them in Appendix A (Statutory Index) to Chapter Two offense guidelines
most analogous to the conduct forming the basis for the statutory
sentencing enhancements.
Finally, the proposed amendment addresses the new criminal offense
at 33 U.S.C. 3851, which makes it a felony, punishable by not more than
six years imprisonment, to sell or distribute an organotin or to sell,
distribute, make, use, or apply an anti-fouling system (e.g., paint)
containing an organotin. The proposed amendment references this new
offense to Sec. Sec. 2Q1.2 (Mishandling of Hazardous or Toxic
Substances or Pesticides; Recordkeeping, Tampering, and Falsification;
Unlawfully Transporting Hazardous Materials in Commerce) and 2Q1.3
(Mishandling of Other Environmental Pollutants; Recordkeeping,
Tampering, and Falsification).
Proposed Amendment
(A) Plea Agreements and Statement of Reasons
Section 6B1.2(b)(2) is amended by striking ``departs from'' and
inserting ``is outside''; by striking ``specifically set forth'' and
all that follows through ``order'' and inserting ``set forth with
specificity in the statement of reasons form''.
Section 6B1.2(c)(2) is amended by striking ``departs from'' and
inserting ``is outside''; by striking ``specifically set forth'' and
all that follows through ``order'' and inserting ``set forth with
specificity in the statement of reasons form''.
The Commentary to Sec. 6B1.2 is amended in the second paragraph by
striking ``departs from'' and inserting ``is outside''; by striking
``(i.e., that such departure'' and all that follows through ``order''
and inserting ``and those reasons are set forth with specificity in the
statement of reasons form. See 18 U.S.C. Sec. 3553(c)''.
Section 5K2.0(e) is amended by striking ``written judgment and
commitment order'' and inserting ``statement of reasons form''.
The Commentary to Sec. 5K2.0 captioned ``Application Notes'' is
amended in Note 3(C) in the second paragraph by striking ``written
judgment and commitment order'' and inserting ``statement of reasons
form''; and in Note 5 by striking ``written judgment and commitment
order'' and inserting ``statement of reasons form''.
(B) Coast Guard Authorization Act
Appendix A (Statutory Index) is amended by inserting after the line
referenced to 18 U.S.C. Sec. 2237(a)(2)(B) the following:
``18 U.S.C. 2237(b)(2)(B)(i) [2A1.1], [2A1.2], 2A1.3, 2A1.4
18 U.S.C. 2237(b)(2)(B)(ii)(I) 2A2.1, 2A2.2
18 U.S.C. 2237(b)(2)(B)(ii)(II) 2A4.1
18 U.S.C. 2237(b)(2)(B)(ii)(III) 2A3.1
18 U.S.C. 2237(b)(3) 2A2.2
18 U.S.C. 2237(b)(4) 2A2.1, 2A2.2, [2G1.1], 2G1.3, 2G2.1, 2H4.1,
2L1.1'';
and by inserting after the line referenced to ``33 U.S.C. 1908''
the following: ``33 U.S.C. 3851 2Q1.2, 2Q1.3''.
9. Technical
Synopsis of Proposed Amendment: This proposed amendment makes
various technical and conforming changes to the guidelines.
First, the proposed amendment makes certain technical and
conforming changes in connection with the amendments that the
Commission submitted to Congress on April 29, 2010. See 75 FR 27388
(May 14, 2010); USSG App. C, Amendments 738-746. Those changes are as
follows:
(1) Amendment 744 made changes to the organizational guidelines in
Chapter Eight, including a change that consolidated subsections (b) and
(c) of Sec. 8D1.4 (Recommended Conditions of Probation--Organizations)
into a single subsection (b). To reflect this consolidation, Sec.
8B2.1(a) is changed so that it refers to the correct subsection of
Sec. 8D1.4.
(2) Amendment 745 expanded the scope of Sec. 2B1.5 (Theft of,
Damage to, or Destruction of, Cultural Heritage Resources; Unlawful
Sale, Purchase, Exchange, Transportation, or Receipt of Cultural
Heritage Resources) to cover
[[Page 3209]]
not only cultural heritage resources, but also paleontological
resources. To reflect this expanded scope, a conforming change is made
to Sec. 2Q2.1(c)(1).
Second, the proposed amendment makes technical changes to Sec.
3C1.1 (Obstructing or Impeding the Administration of Justice), Sec.
4A1.2(k)(2), and Sec. 4B1.1(b) to promote stylistic consistency in how
subdivisions are designated.
Finally, the proposed amendment makes a series of changes
throughout the Guidelines Manual to provide full and accurate
references to the titles of Chapter Three, Part C (Obstruction and
Related Adjustments) and Sec. 3C1.1 (Obstructing or Impeding the
Administration of Justice).
Proposed Amendment
Chapter Two is amended in the introductory commentary by inserting
``and Related Adjustments'' after ``(Obstruction''.
The Commentary to Sec. 2J1.2 captioned ``Application Notes'' is
amended in Note 2(A) by inserting ``and Related Adjustments'' after
``(Obstruction''; and in Note 3 by inserting ``and Related
Adjustments'' after ``(Obstruction''.
The Commentary to Sec. 2J1.3 captioned ``Application Notes'' is
amended in Note 2 by inserting ``and Related Adjustments'' after
``(Obstruction''; and in Note 3 by inserting ``and Related
Adjustments'' after ``(Obstruction''.
The Commentary to Sec. 2J1.6 captioned ``Application Notes'' is
amended in Note 2 by inserting ``and Related Adjustments'' after
``(Obstruction''; and in Note 4 by striking ``Obstruction of Justice''
and inserting ``Obstructing or Impeding the Administration of
Justice''.
The Commentary to Sec. 2J1.9 captioned ``Application Notes'' is
amended in Note 1 by inserting ``and Related Adjustments'' after
``(Obstruction''; and in Note 2 by inserting ``and Related
Adjustments'' after ``(Obstruction''.
Section 2Q2.1(c)(1) is amended by inserting ``or paleontological
resource'' after ``heritage resource''; and by inserting ``or
Paleontological Resources'' after ``Heritage Resources'' in both
places.
Section 3C1.1 is amended by striking ``(A)'' and inserting ``(1)'';
by striking ``(B)'' and inserting ``(2)''; by striking ``(i)'' and
inserting ``(A)''; and by striking ``(ii)'' and inserting ``(B)''.
Section 4A1.2(k)(2) is amended by striking ``(i)'' and inserting
``(A)''; by striking ``(ii)'' and inserting ``(B)''; and by striking
``(iii)'' and inserting ``(C)''.
Section 4B1.1(b) is amended by redesignating (A) through (G) as (1)
through (7).
The Commentary to Sec. 5E1.2 captioned ``Application Notes'' is
amended in Note 6 by inserting ``and Related Adjustments'' after
``(Obstruction''.
The Commentary to Sec. 8A1.2 captioned ``Application Notes'' is
amended in Note 2 by inserting ``and Related Adjustments'' after
``(Obstruction''.
Section 8B2.1(a) is amended by striking ``(c)'' and inserting
``(b)''.
The Commentary to Sec. 8C2.3 captioned ``Application Notes'' is
amended in Note 2 by inserting ``and Related Adjustments'' after
``(Obstruction''.
[FR Doc. 2011-994 Filed 1-18-11; 8:45 am]
BILLING CODE 2210-40-P