[Federal Register Volume 83, Number 18 (Friday, January 26, 2018)]
[Notices]
[Pages 3869-3878]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-01328]
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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 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 several issues
for comment, some of which are set forth together with the proposed
amendments, and one of which (regarding retroactive application of
proposed amendments) is set forth in the SUPPLEMENTARY INFORMATION
section of this notice.
DATES: (1) Written Public Comment.--Written public comment regarding
the proposed amendments and issues for comment set forth in this
notice,
[[Page 3870]]
including public comment regarding retroactive application of any of
the proposed amendments, should be received by the Commission not later
than March 6, 2018. Written reply comments, which may only respond to
issues raised during the original comment period, should be received by
the Commission not later than March 28, 2018. Public comment regarding
a proposed amendment received after the close of the comment period,
and reply comment received on issues not raised during the original
comment period, may not be considered.
(2) Public Hearing.--The Commission may hold a public hearing
regarding the proposed amendments and issues for comment set forth in
this notice. Further information regarding any public hearing that may
be scheduled, including requirements for testifying and providing
written testimony, as well as the date, time, location, and scope of
the hearing, will be provided by the Commission on its website at
www.ussc.gov.
ADDRESSES: All written comment should be sent to the Commission by
electronic mail or regular mail. The email address for public comment
is [email protected]. The regular mail address for public comment
is United States Sentencing Commission, One Columbus Circle NE, Suite
2-500, Washington, DC 20002-8002, Attention: Public Affairs.
FOR FURTHER INFORMATION CONTACT: Christine Leonard, Director, Office of
Legislative and Public Affairs, (202) 502-4500, [email protected].
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).
Publication of a proposed amendment requires the affirmative vote
of at least three voting members of the Commission and is deemed to be
a request for public comment on the proposed amendment. See USSC Rules
of Practice and Procedure 2.2, 4.4. In contrast, the affirmative vote
of at least four voting members is required to promulgate an amendment
and submit it to Congress. See id. 2.2; 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, policy statement, 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.
In summary, the proposed amendments and issues for comment set
forth in this notice are as follows:
(1) A multi-part proposed amendment to Sec. 2D1.1 (Unlawful
Manufacturing, Importing, Exporting, or Trafficking (Including
Possession with Intent to Commit These Offenses); Attempt or
Conspiracy), including (A) amending the Drug Equivalency Tables in
Sec. 2D1.1 to (i) set forth a class-based marihuana equivalency
applicable to synthetic cathinones (except Schedule III, IV, and V
substances) of 1 gram = [200]/[380]/[500] grams of marihuana,
bracketing the possibility of making this class-based marihuana
equivalency also applicable to methcathinone, and (ii) establish a
minimum base offense level of [12] for cases involving synthetic
cathinones (except Schedule III, IV, and V substances), and related
issues for comment; (B) amending the Drug Equivalency Tables in Sec.
2D1.1 to (i) set forth a class-based marihuana equivalency applicable
to synthetic cannabinoids (except Schedule III, IV, and V substances)
of 1 gram = [167]/[334]/[500] grams of marihuana, (ii) provide a
definition for the term ``synthetic cannabinoid,'' and (iii) bracket
the possibility of establishing a minimum base offense level of [12]
for cases involving synthetic cannabinoids (except Schedule III, IV,
and V substances), and related issues for comment; and (C) amending
Sec. 2D1.1 to (i) provide penalties for offenses involving fentanyl
equivalent to the higher penalties currently provided for offenses
involving fentanyl analogues, (ii) provide a definition for the term
``fentanyl analogue,'' set forth a single marihuana equivalency
applicable to any fentanyl analogue of 1 gram = 10 kilograms of
marihuana, and specify in the Drug Quantity Table that the penalties
relating to ``fentanyl'' apply to the substance identified as ``N-
phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] Propenamide,'' and (iii)
provide an enhancement in cases in which fentanyl or a fentanyl
analogue is misrepresented or marketed as another substance, and
related issues for comment;
(2) a multi-part proposed amendment to Sec. 2L1.2 (Unlawfully
Entering or Remaining in the United States) to respond to miscellaneous
guidelines application issues, including (A) amending Sec. 2L1.2(b)(2)
so that its applicability turns on whether the defendant ``engaged in
criminal conduct'' before he or she was ordered deported or ordered
removed from the United States for the first time, rather than whether
the defendant sustained the resulting conviction or convictions before
that event, and a related issue for comment; and (B) amending
Application Note 2 of the Commentary to Sec. 2L1.2 to clarify that,
consistent with the meaning of ``sentence of imprisonment'' under Sec.
4A1.2 (Definitions and Instructions for Computing Criminal History),
the phrase ``sentence imposed'' in Sec. 2L1.2 includes any term of
imprisonment given upon revocation of probation, parole, or supervised
release, regardless of when the revocation occurred; and
(3) a proposed amendment to make various technical changes to the
Guidelines Manual, including (A) technical changes to provide updated
references to certain sections in Title 16, United States Code, that
were restated, with minor revisions, when Congress enacted a new Title
54; (B) technical changes to reflect the editorial reclassification of
certain provisions bearing on crime control and law enforcement,
previously scattered throughout various parts of the United States
Code, to a new Title 34; and (C) a clerical change to Sec. 8C2.1
(Applicability of Fine Guidelines) to delete an outdated reference to
Sec. 2C1.6, which was deleted by consolidation with Sec. 2C1.2
(Offering, Giving, Soliciting, or Receiving a Gratuity) effective
November 1, 2004.
In addition, 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 (d) 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
[[Page 3871]]
Commission lists in Sec. 1B1.10(d) 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(d). To the extent practicable,
public comment should address each of these factors.
The text of the proposed amendments and related issues for comment
are set forth below. Additional information pertaining to the proposed
amendments and issues for comment described in this notice may be
accessed through the Commission's website at www.ussc.gov.
Authority: 28 U.S.C. 994(a), (o), (p), (x); USSC Rules of
Practice and Procedure 2.2, 4.3, 4.4.
William H. Pryor, Jr.,
Acting Chair.
Proposed Amendments to the Sentencing Guidelines, Policy Statements,
and Official Commentary
1. Synthetic Drugs
Synopsis of Proposed Amendment: This proposed amendment is a result
of the Commission's multiyear study of offenses involving synthetic
cathinones (such as methylone, MDPV, and mephedrone) and synthetic
cannabinoids (such as JWH-018 and AM-2201), as well as
tetrahydrocannabinol (THC), fentanyl, and fentanyl analogues, and
consideration of appropriate guideline amendments, including
simplifying the determination of the most closely related controlled
substance under Application Note 6 of the Commentary to Sec. 2D1.1.
See U.S. Sentencing Comm'n, ``Notice of Final Priorities,'' 82 FR 39949
(Aug. 22, 2017). The proposed amendment contains three parts (Parts A
through C). The Commission is considering whether to promulgate any or
all of these parts, as they are not mutually exclusive.
Part A of the proposed amendment would amend the Drug Equivalency
Tables in Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or
Trafficking (Including Possession with Intent to Commit These
Offenses); Attempt or Conspiracy) to adopt a class-based approach to
account for synthetic cathinones. It sets forth a single marihuana
equivalency applicable to synthetic cathinones (except Schedule III,
IV, and V substances) of 1 gram = [200]/[380]/[500] grams of marihuana.
Part A of the proposed amendment also brackets the possibility of
making this class-based marihuana equivalency also applicable to
methcathinone, by deleting the specific reference to this controlled
substance in the Drug Equivalency Tables. Finally, Part A of the
proposed amendment establishes a minimum base offense level of [12] for
cases involving synthetic cathinones (except Schedule III, IV, and V
substances). Issues for comment are also provided.
Part B of the proposed amendment would amend the Drug Equivalency
Tables in Sec. 2D1.1 to adopt a class-based approach to account for
synthetic cannabinoids. It sets forth a single marihuana equivalency
applicable to synthetic cannabinoids (except Schedule III, IV, and V
substances) of 1 gram = [167]/[334]/[500] grams of marihuana. It also
adds a provision defining the term ``synthetic cannabinoid.'' Finally,
Part B of the proposed amendment brackets for comment a provision
establishing a minimum base offense level of [12] for cases involving
synthetic cannabinoids (except Schedule III, IV, and V substances).
Issues for comment are also provided.
Part C of the proposed amendment would amend Sec. 2D1.1 in several
ways to account for fentanyl and fentanyl analogues. First, it provides
penalties for offenses involving fentanyl that are equivalent to the
higher penalties currently provided for offenses involving fentanyl
analogues. Second, the proposed amendment revises Sec. 2D1.1 to
provide a definition of the term ``fentanyl analogue,'' set forth a
single marihuana equivalency applicable to any fentanyl analogue of 1
gram = 10 kilograms of marihuana, and specify in the Drug Quantity
Table that the penalties relating to ``fentanyl'' apply to the
substance identified as ``N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]
propanamide.'' Finally, Part C of the proposed amendment amends Sec.
2D1.1 to provide an enhancement in cases in which fentanyl or a
fentanyl analogue is misrepresented or marketed as another substance.
Issues for comment are also provided.
(A) Synthetic Cathinones
Synopsis of the Proposed Amendment: Synthetic cathinones are human-
made drugs chemically related to cathinone, a stimulant found in the
khat plant. See National Institute on Drug Abuse, DrugFacts: Synthetic
Cathinones (``Bath Salts'') (January 2016), available at https://www.drugabuse.gov/publications/drugfacts/synthetic-cathinones-bath-salts. According to the National Institute on Drug Abuse, synthetic
variants of cathinone can be much stronger than the natural cathinone
and, in some cases, very dangerous. Id. Abuse of synthetic cathinones,
sometimes referred to as ``bath salts,'' has become more prevalent over
the last decade.
Currently, Sec. 2D1.1 (Unlawful Manufacturing, Importing,
Exporting, or Trafficking (Including Possession with Intent to Commit
These Offenses); Attempt or Conspiracy) specifically lists only one
synthetic cathinone, Methcathinone. Because other synthetic cathinones
are not specifically listed in either the Drug Quantity Table or the
Drug Equivalency Tables in Sec. 2D1.1, cases involving these
substances require courts to use Application Note 6 of the Commentary
to Sec. 2D1.1 to ``determine the base offense level using the
marihuana equivalency of the most closely related controlled substance
referenced in [Sec. 2D1.1].'' The Commission has received comment
suggesting that questions regarding ``the most closely related
controlled substance'' arise frequently in cases involving synthetic
cathinones, and that the Application Note 6 process requires courts to
hold extensive hearings to receive expert testimony on behalf of the
government and the defendant.
The Commission has also received comment indicating that a large
number of synthetic cathinones are currently available on the illicit
drug market and that new varieties are regularly developed for illegal
trafficking. Given this information, it would likely be difficult and
impracticable for the Commission to provide individual marihuana
equivalencies for each synthetic cathinone in the Guidelines Manual.
Testimony received by the Commission indicates that whether a substance
is properly classified as a synthetic cathinone is not generally
subject to debate, as there appears to be broad agreement that the
basic chemical structure of cathinone remains present throughout all
synthetic cathinones.
Part A of the proposed amendment would amend the Drug Equivalency
Tables in Sec. 2D1.1 to adopt a class-based approach to account for
synthetic cathinones. It sets forth a single marihuana equivalency
applicable to synthetic cathinones (except Schedule III, IV, and V
substances) of 1 gram = [200]/[380]/[500] grams of marihuana. The
proposed amendment also establishes a minimum base offense level of
[12] for cases involving synthetic cathinones (except Schedule III, IV,
and V substances). Finally, the
[[Page 3872]]
proposed amendment brackets the possibility of making this class-based
marihuana equivalency also applicable to methcathinone, by deleting the
specific reference to this controlled substance in the Drug Equivalency
Tables.
Issues for comment are also provided.
Proposed Amendment
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 8(D)--
[in the table under the heading ``Cocaine and Other Schedule I and II
Stimulants (and their immediate precursors) *'', by striking the
following:
``1 gm of Methcathinone = 380 gm of marihuana'';
and] by inserting after the table under the heading ``Cocaine and Other
Schedule I and II Stimulants (and their immediate precursors) *'' the
following new table:
``Synthetic Cathinones (except Schedule III, IV, and V Substances) * 1
gm of a synthetic cathinone (except a Schedule III, IV, or V substance)
= [200]/[380]/[500] gm of marihuana
* Provided, that the minimum offense level from the Drug Quantity Table
for any synthetic cathinone (except a Schedule III, IV, or V substance)
individually, or in combination with another controlled substance, is
level [12].''.
Issues for Comment
1. Part A of the proposed amendment would amend the Drug
Equivalency Tables in Sec. 2D1.1 (Unlawful Manufacturing, Importing,
Exporting, or Trafficking (Including Possession with Intent to Commit
These Offenses); Attempt or Conspiracy) to adopt a class-based approach
to account for synthetic cathinones. It sets forth a single marihuana
equivalency applicable to synthetic cathinones (except Schedule III,
IV, and V substances) of 1 gram = [200]/[380]/[500] grams of marihuana.
The Commission seeks comment on how, if at all, the guidelines should
be amended to account for synthetic cathinones.
Should the Commission provide a class-based approach to account for
synthetic cathinones? Are synthetic cathinones sufficiently similar to
one another in chemical structure, pharmacological effects, potential
for addiction and abuse, patterns of trafficking and abuse, and/or
associated harms, to support the adoption of a class-based approach for
sentencing purposes? Are there any synthetic cathinones that should not
be included as part of a class-based approach and for which the
Commission should provide a marihuana equivalency separate from other
synthetic cathinones? If so, what equivalency should the Commission
provide for each such synthetic cathinone, and why? If the Commission
were to provide a different approach to account for synthetic
cathinones in the guidelines, what should that different approach be?
Which, if any, of the proposed [1:200]/[1:380]/[1:500] marihuana
equivalency ratios is appropriate for synthetic cathinones (except
Schedule III, IV, and V substances) as a class? Should the Commission
establish a different equivalency applicable to such a class? If so,
what equivalency should the Commission provide and on what basis?
2. Part A of the proposed amendment brackets the possibility of
making the marihuana equivalency applicable to synthetic cathinones
also applicable to methcathinone by deleting the specific reference to
this controlled substance in the Drug Equivalency Tables. Is
methcathinone sufficiently similar to other synthetic cathinones in
chemical structure, pharmacological effects, potential for addiction
and abuse, patterns of trafficking and abuse, and/or associated harms
to be included as part of a class-based approach for synthetic
cathinones? Should the Commission instead continue to provide a
marihuana equivalency for methcathinone separate from other synthetic
cathinones?
3. The Commission seeks comment whether it should amend the
Commentary to Sec. 2D1.1 (Unlawful Manufacturing, Importing,
Exporting, or Trafficking (Including Possession with Intent to Commit
These Offenses); Attempt or Conspiracy) to provide guidance on how to
apply the new class-based marihuana equivalency for synthetic
cathinones. What guidance, if any, should the Commission provide on the
application of the proposed class-based marihuana equivalency? Should
the Commission define the term ``synthetic cathinone'' for purposes of
this class-based approach? If so, what definition should the Commission
provide for such term? What factors should the Commission account for
if it considers providing a definition for ``synthetic cathinone''?
(B) Synthetic Cannabinoids
Synopsis of the Proposed Amendment: Synthetic cannabinoids are
human-made, mind-altering chemicals developed to mimic the effects of
tetrahydrocannabinol (THC), the main psychoactive chemical found in the
marihuana plant. Like THC, synthetic cannabinoids act as an agonist at
a specific part of the central nervous system known as the cannabinoid
receptors, binding to and activating these receptors to produce
psychoactive effects. However, the available scientific literature on
this subject suggests that some synthetic cannabinoids bind more
strongly to cell receptors affected by THC, and may produce stronger
effects. See National Institute of Drug Abuse, DrugFacts: Synthetic
Cannabinoids (Revised November 2015) available at https://www.drugabuse.gov/publications/drugfacts/synthetic-cannabinoids.
The Commission has received comment indicating that the synthetic
cannabinoids encountered on the illicit market are predominantly potent
cannabinoid agonists that are pharmacologically similar to THC, but may
cause a more severe toxicity and more serious adverse effects than THC.
According to commenters, THC is only a partial agonist at type 1
cannabinoid receptors (CB1 receptors) and produces 30 to 50
percent (or less) of the highest possible response in receptor
activation. Synthetic cannabinoids are full agonists at CB1
receptors that elicit close to 100 percent response in receptor
activation. Some commenters have argued that this high activation
response may contribute to the increased toxicity and more severe
adverse effects of synthetic cannabinoids when compared with THC.
According to commenters, some of the adverse effects of synthetic
cannabinoids are more prevalent or more severe than those produced by
marihuana and THC, and may be produced at lower doses. The Commission
was also informed by commenters that drug discrimination data is
available on at least 26 different synthetic cannabinoids. JWH-018, one
of the substances included in the Commission's study, was shown in the
drug discrimination assay to be approximately three times as potent as
THC. Another substance included in the Commission's study, AM-2201, was
shown to be approximately five times as potent as THC using the same
assay. Newer synthetic cannabinoids have been shown to be even more
potent than these substances. According to the Drug Enforcement
Administration, on rare occasions synthetic cannabinoids have been
shown to be less potent than THC, as substances with a lower potency
are often abandoned by manufacturers following negative user reports
relating to their effects.
Currently, Sec. 2D1.1 (Unlawful Manufacturing, Importing,
Exporting, or Trafficking (Including Possession with Intent to Commit
These Offenses); Attempt or Conspiracy) specifically lists
[[Page 3873]]
only one synthetic cannabinoid, synthetic THC. Synthetic THC has a
marihuana equivalency of 1 gram = 167 grams of marihuana. Because other
synthetic cannabinoids are not specifically listed in either the Drug
Quantity Table or the Drug Equivalency Tables in Sec. 2D1.1, cases
involving these substances require courts to use Application Note 6 of
the Commentary to Sec. 2D1.1 to ``determine the base offense level
using the marihuana equivalency of the most closely related controlled
substance referenced in [Sec. 2D1.1].'' Although courts often rely on
the synthetic THC equivalency in cases involving synthetic
cannabinoids, the Commission has received comment suggesting that
questions regarding ``the most closely related controlled substance''
arise frequently in such cases, and that the Application Note 6 process
requires courts to hold extensive hearings to receive expert testimony
on behalf of the government and the defendant.
The Commission has also received comment suggesting that, like
synthetic cathinones, a large number of synthetic cannabinoids are
currently available on the illicit drug market and new varieties are
regularly developed for illegal trafficking. Given this information, it
would likely be difficult and impracticable for the Commission to
provide individual marihuana equivalencies for each synthetic
cannabinoid in the Guidelines Manual. Unlike synthetic cathinones,
synthetic cannabinoids cannot be defined as a single class based on a
common chemical structure. Synthetic cannabinoids regularly developed
for illegal trafficking come from several different structural classes.
However, the Commission received testimony from experts indicating
that, while synthetic cannabinoids may differ in chemical structure,
these substances all produce the same pharmacological effects: They act
as an agonist at type 1 cannabinoid receptors (CB1
receptors).
Part B of the proposed amendment would amend the Drug Equivalency
Tables in Sec. 2D1.1 to adopt a class-based approach to account for
synthetic cannabinoids. It sets forth a single marihuana equivalency
applicable to synthetic cannabinoids (except Schedule III, IV, and V
substances) of 1 gram = [167]/[334]/[500] grams of marihuana. The
proposed amendment would also add a provision defining ``synthetic
cannabinoid'' as ``any synthetic substance (other than synthetic
tetrahydrocannabinol) that [acts as an agonist at][binds to and
activates] type 1 cannabinoid receptors (CB1 receptors).''
Finally, Part B of the proposed amendment brackets for comment a
provision establishing a minimum base offense level of [12] for cases
involving synthetic cannabinoids (except Schedule III, IV, and V
substances).
Issues for comment are also provided.
Proposed Amendment
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 8(D) by inserting after the table under the heading
``Schedule I Marihuana'' the following new table:
``Synthetic Cannabinoids (except Schedule III, IV, and V Substances)[*]
1 gm of a synthetic cannabinoid
(except a Schedule III, IV, or V substance) = [167]/[334]/[500] gm
of marihuana
[*Provided, that the minimum offense level from the Drug Quantity Table
for any synthetic cannabinoid (except a Schedule III, IV, or V
substance) individually, or in combination with another controlled
substance, is level [12].]
`Synthetic cannabinoid,' for purposes of this guideline, means any
synthetic substance (other than synthetic tetrahydrocannabinol) that
[acts as an agonist at][binds to and activates] type 1 cannabinoid
receptors (CB1 receptors).''.
Issues for Comment
1. Part B of the proposed amendment would amend the Drug
Equivalency Tables in Sec. 2D1.1 (Unlawful Manufacturing, Importing,
Exporting, or Trafficking (Including Possession with Intent to Commit
These Offenses); Attempt or Conspiracy) to adopt a class-based approach
to account for synthetic cannabinoids. It sets forth a single marihuana
equivalency applicable to synthetic cannabinoids (except Schedule III,
IV, and V substances) of 1 gram of such a synthetic cannabinoid =
[167]/[334]/[500] grams of marihuana. The Commission seeks comment on
how, if at all, the guidelines should be amended to account for
synthetic cannabinoids.
Should the Commission provide a class-based approach to account for
synthetic cannabinoids? Are synthetic cannabinoids sufficiently similar
to one another in chemical structure, pharmacological effects,
potential for addiction and abuse, patterns of trafficking and abuse,
and/or associated harms to support the adoption of a class-based
approach for sentencing purposes? Are there any synthetic cannabinoids
that should not be included as part of a class-based approach and for
which the Commission should provide a marihuana equivalency separate
from other synthetic cannabinoids? If so, what equivalency should the
Commission provide for each such synthetic cannabinoid, and why? If the
Commission were to provide a different approach to account for
synthetic cannabinoids in the guidelines, what should that different
approach be?
Which, if any, of the proposed [1:167]/[1:334]/[1:500] marihuana
equivalency ratios is appropriate for synthetic cannabinoids (except
Schedule III, IV, and V substances) as a class? Should the Commission
establish a different equivalency applicable to such a class? If so,
what equivalency should the Commission provide and on what basis?
2. The Commission seeks comment on whether the Commission should
make a distinction between a synthetic cannabinoid in ``actual'' form
(i.e., as a powder or crystalline substance) and a synthetic
cannabinoid as part of a mixture (e.g., sprayed on or soaked into a
plant or other base material, or otherwise mixed with other
substances), by establishing a different marihuana equivalency for each
of these forms in which synthetic cannabinoids are trafficked. If so,
what equivalencies should the Commission provide and on what basis? Are
there differences in terms of pharmacological effects, potential for
addiction and abuse, patterns of trafficking and abuse, and/or
associated harms between the various forms in which synthetic
cannabinoids are trafficked that would support this distinction? Is the
use of the term ``actual'' appropriate in cases involving synthetic
cannabinoids? If not, what term should the Commission use to refer to a
synthetic cannabinoid as a powder or crystalline substance that has not
been mixed with other substances (e.g., sprayed on or soaked into a
plant or other base material)?
3. Part B of the proposed amendment would include in the Commentary
to Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or
Trafficking (Including Possession with Intent to Commit These
Offenses); Attempt or Conspiracy) a provision defining the term
``synthetic cannabinoid'' as ``any synthetic substance (other than
synthetic tetrahydrocannabinol) that [acts as an agonist at][binds to
and activates] type 1 cannabinoid receptors (CB1
receptors).'' Is this definition appropriate? If not, what definition,
if any, should the Commission provide? Are there any synthetic
cannabinoids that would not be included under this definition but
should be? Are there any
[[Page 3874]]
substances that would be included in this definition but should not be?
What factors should the Commission take into account in defining
``synthetic cannabinoid''? What additional guidance, if any, should the
Commission provide on how to apply the proposed class-based marihuana
equivalency for synthetic cannabinoids?
4. Part B of the proposed amendment brackets the possibility of
establishing a minimum base offense level of [12] for cases involving
synthetic cannabinoids (except Schedule III, IV, and V substances)
individually, or in combination with another substance. Should the
Commission provide a minimum base offense level for such cases? What
minimum base offense level, if any, should the Commission provide for
cases involving synthetic cannabinoids, and under what circumstances
should it apply?
5. The Commission seeks comment on whether, if the Commission were
to adopt a 1:167 equivalency ratio for synthetic cannabinoids, this
class-based marihuana equivalency should also be applicable to
synthetic tetrahydrocannabinol (THC). If so, should the Commission
delete the specific reference to this controlled substance in the Drug
Equivalency Tables and expand the proposed definition of ``synthetic
cannabinoid'' to include ``any synthetic substance that [acts as an
agonist at][binds to and activates] type 1 cannabinoid receptors
(CB1 receptors)''? Is synthetic THC covered by this
definition of ``synthetic cannabinoid''? Is synthetic THC sufficiently
similar to other synthetic cannabinoids in chemical structure,
pharmacological effects, potential for addiction and abuse, patterns of
trafficking and abuse, and/or associated harms, to be included as part
of a class-based approach for synthetic cannabinoids? Should the
Commission instead continue to provide a marihuana equivalency for
synthetic THC separate from other synthetic cannabinoids?
(C) Fentanyl and Fentanyl Analogues
Synopsis of Proposed Amendment: Fentanyl is a powerful synthetic
opioid analgesic that is similar to morphine but 50 to 100 times more
potent. See National Institute on Drug Abuse, DrugFacts: Fentanyl (June
2016), available at https://www.drugabuse.gov/publications/drugfacts/fentanyl. Fentanyl is a prescription drug that can be diverted for
illicit use. Fentanyl and analogues of fentanyl are also produced in
clandestine laboratories for illicit use. See, e.g., U.N. Office on
Drugs & Crime, Fentanyl and Its Analogues--50 Years On, Global Smart
Update 17 (March 2017), available at https://www.unodc.org/documents/scientific/Global_SMART_Update_17_web.pdf. These substances are sold on
the illicit drug market as powder, pills, absorbed on blotter paper,
mixed with or substituted for heroin, or as tablets that may mimic the
appearance of prescription opioids. While most fentanyl analogues are
typically about as potent as fentanyl itself, some analogues, such as
sufentanil and carfentanil, are reported to be many times more potent
than fentanyl.
The Statutory and Guidelines Framework
The Controlled Substances Act (21 U.S.C. 801 et seq.) classifies
fentanyl as a Schedule II controlled substance, along with other
opiates. While there is no other specific reference to the term
``fentanyl'' in Title 21, United States Code, a subsequent section
establishes a mandatory minimum penalty for a substance identified as
``N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide.'' 21 U.S.C.
841(b)(1)(A)(vi). A Department of Justice regulation explains that N-
phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide is the substance
``commonly known as fentanyl.'' 28 CFR 50.21(d)(4)(vii). The Controlled
Substances Act prescribes a mandatory minimum penalty of five years for
trafficking 40 or more grams of the substance, or ten or more grams of
an analogue of the substance. 21 U.S.C. 841(b)(1)(A)(vi);
(b)(1)(B)(vi).
The Drug Quantity Table in Sec. 2D1.1 (Unlawful Manufacturing,
Importing, Exporting, or Trafficking (Including Possession with Intent
to Commit These Offenses); Attempt or Conspiracy) contains entries for
both ``fentanyl'' and ``fentanyl analogue,'' at severity levels that
reflect the mandatory minimum penalty structure. The Drug Equivalency
Tables in the Commentary to Sec. 2D1.1 clearly identify fentanyl with
the specific substance associated with the statutory minimum penalty by
providing a marihuana equivalency for 1 gm of ``Fentanyl (N-phenyl-N-
[1-(2-phenylethyl)-4-piperidinyl] Propanamide)'' equal to 2.5 kg of
marihuana (i.e., a 1:2,500 ratio). The Drug Equivalency Tables also set
forth the marihuana equivalencies for two other substances, alpha-
methylfentanyl and 3-methylfentanyl. Both substances have the same
marihuana equivalency ratio, 1:10,000, which corresponds with the
penalties for fentanyl analogues. Alpha-methylfentanyl and 3-
methylfentanyl are pharmaceutical analogues of fentanyl that were
developed in the 1960s or 1970s. See, e.g., T.J. Gillespie, et al.,
Identification and Quantification of Alpha-Methylfentanyl in Post
Mortem Specimens, 6(3) J. of Analytical Toxicology 139 (May-June 1982).
Higher Penalties for Offenses Involving Fentanyl
First, Part C of the proposed amendment would revise Sec. 2D1.1 to
increase penalties for offenses involving fentanyl. The Commission has
received comment indicating that the proliferation and ease of
availability of multiple varieties of fentanyl and fentanyl analogues
has resulted in an increased number of deaths from overdoses.
Commenters have argued that Sec. 2D1.1 does not adequately reflect the
serious dangers posed by fentanyl and its analogues, including their
high potential for abuse and addiction. Public health data shows that
the harms associated with abuse of fentanyl and fentanyl analogues far
exceed those associated with other opioid analgesics.
Part C of the proposed amendment would amend Sec. 2D1.1 to provide
penalties for fentanyl that are equivalent to the higher penalties
currently provided for fentanyl analogues. The proposed amendment would
accomplish this objective by changing the base offense levels for
fentanyl in the Drug Quantity Table at Sec. 2D1.1(c) to parallel the
base offense levels established for fentanyl analogues. It would also
amend the Drug Equivalency Tables in the Commentary to Sec. 2D1.1 to
change the marihuana equivalency ratio for fentanyl to the same ratio,
1:10,000, provided for fentanyl analogues.
Issues Relating to ``Fentanyl Analogues''
Second, Part C of the proposed amendment would revise Sec. 2D1.1
to address several issues relating to offenses involving fentanyl
analogues. The Commission has received comment that the penalty for
``fentanyl analogue'' set forth in the guidelines interacts in a
potentially confusing way with the guideline definition of the term
``analogue.'' Although the term ``fentanyl analogue'' is not defined by
the guidelines, Application Note 6 states that, for purposes of Sec.
2D1.1, ``analogue'' has the meaning given the term ``controlled
substance analogue'' in 21 U.S.C. 802(32). Section 802(32) defines
``controlled substance analogue'' to exclude ``a controlled
substance''--that is, a substance that has been scheduled. Thus, once
the Drug Enforcement Administration (or Congress) schedules a substance
that is a ``fentanyl analogue'' in the scientific sense, that substance
may not qualify as a ``fentanyl analogue'' for purposes of the Drug
[[Page 3875]]
Quantity Table. Hence, in cases involving a scheduled ``fentanyl
analogue'' other than the two fentanyl analogues listed by name in the
Drug Equivalency Tables, courts would be required by Application Note 6
of the Commentary to Sec. 2D1.1 to ``determine the base offense level
using the marihuana equivalency of the most closely related controlled
substance referenced in [Sec. 2D1.1].''
The Commission has received comment suggesting that the Application
Note 6 process requires courts to hold extensive hearings to receive
expert testimony on behalf of the government and the defendant. This
process is likely to determine that fentanyl, rather than one of the
two listed variants in the guideline, is the most closely related
controlled substance to a scheduled ``fentanyl analogue.'' This will
result in a substance that would scientifically be considered a
fentanyl analogue being punished under the 1:2,500 fentanyl ratio,
rather than the 1:10,000 ``fentanyl analogue'' ratio.
Part C of the proposed amendment would address this situation by
revising Sec. 2D1.1 to define ``fentanyl analogue'' as ``any substance
(including any salt, isomer, or salt of isomer thereof), whether a
controlled substance or not, that has a chemical structure that is
[substantially] similar to fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] propanamide).'' It would also amend the Drug Equivalency
Tables in Sec. 2D1.1 to provide a single marihuana equivalency
applicable to any fentanyl analogue of 1 gram = 10 kilograms of
marihuana. The proposed amendment brackets the possibility of making
this new marihuana equivalency also applicable to alpha-methylfentanyl
and 3-methylfentanyl by deleting the specific references to these
controlled substances in the Drug Equivalency Tables. In addition, the
proposed amendment would amend the Drug Quantity Table to specify that
the penalties relating to ``fentanyl'' apply to the substance
identified in the statute as ``N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] propanamide.''
Increased Penalties for Offenses Involving Fentanyl and Fentanyl
Analogues Misrepresented as Another Substance
Finally, Part C of the proposed amendment would amend Sec. 2D1.1
to address cases involving fentanyl and fentanyl analogues
misrepresented as another substance. The Commission has received
comment that fentanyl and fentanyl analogues are being mixed with, and
in some instances substituted for, other drugs, such as heroin and
cocaine. According to commenters, fentanyl and fentanyl analogues are
also being pressed into pills that resemble prescription opioids, such
as oxycodone and hydrocodone. Commenters have also suggested that the
harms associated with the use of fentanyl and fentanyl analogues are
heightened by the fact that users may unknowingly consume fentanyl or
fentanyl analogues in products misrepresented or sold as other
substances, such as heroin or counterfeit prescription pills. Because
such users may be unaware that what they believe to be a certain
substance, such as heroin, is either fentanyl or has been laced with
fentanyl, they may not mitigate against the added risks of use,
including overdose.
Part C of the proposed amendment would add a new specific offense
characteristic at Sec. 2D1.1(b)(13) providing an enhancement of [2][4]
levels to address these cases. It provides two alternatives for such an
enhancement. Under the first alternative, the enhancement would apply
if the offense involved a mixture or substance containing a detectable
amount of fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]
propanamide) or a fentanyl analogue that was misrepresented or marketed
as another substance. Under the second alternative, the enhancement
would apply if the offense involved a mixture or substance containing
fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide) or
a fentanyl analogue and the defendant knowingly misrepresented or
knowingly marketed that mixture or substance as another substance.
Issues for comment are also provided.
Proposed Amendment
Section 2D1.1(b) is amended by redesignating paragraphs (13)
through (17) as paragraphs (14) through (18), respectively, and by
inserting the following new paragraph (13):
``(13) [If the offense involved a mixture or substance containing
fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide) or
a fentanyl analogue that was misrepresented or marketed as another
substance][If the offense involved a mixture or substance containing
fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide) or
a fentanyl analogue and the defendant knowingly misrepresented or
knowingly marketed that mixture or substance as another substance],
increase by [2][4] levels.''.
Section 2D1.1(c)(1) is amended by striking ``36 KG or more of
Fentanyl;'' and inserting the following:
``[9] KG or more of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] Propanamide);''.
Section 2D1.1(c)(2) is amended by striking ``At least 12 KG but
less than 36 KG of Fentanyl;'' and inserting the following:
``At least [3] KG but less than [9] KG of Fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] Propanamide);''.
Section 2D1.1(c)(3) is amended by striking ``At least 4 KG but less
than 12 KG of Fentanyl;'' and inserting the following:
``At least [1] KG but less than [3] KG of Fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] Propanamide);''.
Section 2D1.1(c)(4) is amended by striking ``At least 1.2 KG but
less than 4 KG of Fentanyl;'' and inserting the following:
``At least [300] G but less than [1] KG of Fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] Propanamide);''.
Section 2D1.1(c)(5) is amended by striking ``At least 400 G but
less than 1.2 KG of Fentanyl;'' and inserting the following:
``At least [100] G but less than [300] G of Fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] Propanamide);''.
Section 2D1.1(c)(6) is amended by striking ``At least 280 G but
less than 400 G of Fentanyl;'' and inserting the following:
``At least [70] G but less than [100] G of Fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] Propanamide);''.
Section 2D1.1(c)(7) is amended by striking ``At least 160 G but
less than 280 G of Fentanyl;'' and inserting the following:
``At least [40] G but less than [70] G of Fentanyl ((N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] Propanamide);''.
Section 2D1.1(c)(8) is amended by striking ``At least 40 G but less
than 160 G of Fentanyl;'' and inserting the following:
``At least [10] G but less than [40] G of Fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] Propanamide);''.
Section 2D1.1(c)(9) is amended by striking ``At least 32 G but less
than 40
[[Page 3876]]
G of Fentanyl;'' and inserting the following:
``At least [8] G but less than [10] G of Fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] Propanamide);''.
Section 2D1.1(c)(10) is amended by striking ``At least 24 G but
less than 32 G of Fentanyl;'' and inserting the following:
``At least [6] G but less than [8] G of Fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] Propanamide);''.
Section 2D1.1(c)(11) is amended by striking ``At least 16 G but
less than 24 G of Fentanyl;'' and inserting the following:
``At least [4] G but less than [6] G of Fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] Propanamide);''.
Section 2D1.1(c)(12) is amended by striking ``At least 8 G but less
than 16 G of Fentanyl;'' and inserting the following:
``At least [2] G but less than [4] G of Fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] Propanamide);''.
Section 2D1.1(c)(13) is amended by striking ``At least 4 G but less
than 8 G of Fentanyl;'' and inserting the following:
``At least [1] G but less than [2] G of Fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] Propanamide);''.
Section 2D1.1(c)(14) is amended by striking ``Less than 4 G of
Fentanyl;'' and inserting the following:
``Less than [1] G of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] Propanamide);''.
The annotation to Sec. 2D1.1(c) captioned ``Notes to Drug Quantity
Table'' is amended by inserting at the end the following new Note (J):
``(J) Fentanyl analogue, for the purposes of this guideline, means
any substance (including any salt, isomer, or salt of isomer thereof),
whether a controlled substance or not, that has a chemical structure
that is [substantially] similar to fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] propanamide).''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended--in Note 6 by striking ``Any reference to a particular
controlled substance in these guidelines'' and inserting ``Except as
otherwise provided, any reference to a particular controlled substance
in these guidelines'', and by striking ``For purposes of this guideline
`analogue' has the meaning'' and inserting ``Unless otherwise
specified, `analogue,' for purposes of this guideline, has the
meaning'';
and in note 8(D), in the table under the heading ``Schedule I or II
Opiates*''--
[by striking the following two lines:
``1 gm of Alpha-Methylfentanyl = 10 kg of marihuana''
``1 gm of 3-Methylfentanyl = 10 kg of marihuana''
and] by inserting after the line referenced to Fentanyl (N-phenyl-N-[1-
(2-phenylethyl)- 4-piperidinyl] Propanamide) the following:
``1 gm of a Fentanyl Analogue = [10] kg of marihuana''.
Issues for Comment
1. Part C of the proposed amendment would amend the ``Notes to Drug
Quantity Table'' in Sec. 2D1.1 (Unlawful Manufacturing, Importing,
Exporting, or Trafficking (Including Possession with Intent to Commit
These Offenses); Attempt or Conspiracy) to include a provision defining
``fentanyl analogue'' as ``any substance (including any salt, isomer,
or salt of isomer thereof), whether a controlled substance or not, that
has a chemical structure that is [substantially] similar to fentanyl
(N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide).'' Is this
definition appropriate? If not, what definition, if any, should the
Commission provide? For example, should the Commission specify that to
qualify as a ``fentanyl analogue,'' a substance, whether a controlled
substance or not, must (A) have a chemical structure that is
[substantially] similar to fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] propanamide) and (B) either (i) have an effect on the
central nervous system that is substantially similar to [or greater
than] fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]
propanamide), or (ii) be represented or intended to have such an
effect?
2. The proposed amendment would amend Sec. 2D1.1 (Unlawful
Manufacturing, Importing, Exporting, or Trafficking (Including
Possession with Intent to Commit These Offenses); Attempt or
Conspiracy) to adopt a class-based approach to account for all fentanyl
analogues, whether they are controlled substances or not. Are fentanyl
analogues sufficiently similar to one another in chemical structure,
pharmacological effects, potential for addiction and abuse, patterns of
trafficking and abuse, and/or associated harms to support such class-
based approach for sentencing purposes? If so, are the penalties set
forth in the Drug Quantity Table and the proposed 1:10,000 marihuana
equivalency ratio appropriate for fentanyl analogues as a class? Should
the Commission establish different penalties or a different equivalency
applicable to such substances? If so, what penalties should the
Commission provide and on what basis? Are there any fentanyl analogues
that should not be included as part of a class-based approach and for
which the Commission should provide penalties separate from other
fentanyl analogues? If so, what penalties should the Commission provide
for each such fentanyl analogue, and why? If the Commission were to
provide a different approach to account for fentanyl analogues in the
guidelines, what should that different approach be?
The proposed amendment brackets the possibility of making the
marihuana equivalency applicable to all fentanyl analogues that are
commonly regarded as analogues of ``Fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] Propanamide'' also applicable to alpha-
methylfentanyl and 3-methylfentanyl by deleting the specific references
to these controlled substances in the Drug Equivalency Tables. Are
alpha-methylfentanyl and 3-methylfentanyl sufficiently similar to other
fentanyl analogues in chemical structure, pharmacological effects,
potential for addiction and abuse, patterns of trafficking and abuse,
and/or associated harms, to be included as part of a class-based
approach for fentanyl analogues? Should the Commission instead continue
to provide marihuana equivalencies for alpha-methylfentanyl and 3-
methylfentanyl separate from other fentanyl analogues?
3. According to the Drug Enforcement Administration (DEA) and other
sources, fentanyl and fentanyl analogues are typically manufactured in
China and then shipped via freight forwarding companies or parcel post
to the United States or to other places in the Western Hemisphere.
Additionally, fentanyl and fentanyl analogues are available for
purchase online through the ``dark net'' (commercial websites
functioning as black markets) and regular websites, and commonly
shipped into the United States. According to the DEA, the improper
handling of fentanyl and fentanyl analogues presents grave danger to
individuals who may inadvertently come into contact with such
substances. Those at risk include law enforcement and emergency
personnel who may unknowingly encounter these substances during
arrests, searches, or emergency calls.
[[Page 3877]]
The Commission seeks comment on whether the guidelines provide
appropriate penalties for cases in which fentanyl or a fentanyl
analogue may create a substantial threat to the public health or safety
(including the health or safety of law enforcement and emergency
personnel). If not, how should the Commission revise the guidelines to
provide appropriate penalties in such cases? Should the Commission
provide new enhancements, adjustments, or departure provisions to
account for such cases? If the Commission were to provide such a
provision, what specific offense conduct, harm, or other factor should
be the basis for applying the provision? What penalty increase should
be provided?
2. Illegal Reentry Guideline Enhancements
Synopsis of Proposed Amendment: This proposed amendment is a result
of the Commission's consideration of miscellaneous guidelines
application issues. See U.S. Sentencing Comm'n, ``Notice of Final
Priorities,'' 82 FR 39949 (Aug. 22, 2017). It responds to issues that
have arisen regarding application of the illegal reentry guideline at
Sec. 2L1.2 (Unlawfully Entering or Remaining in the United States).
The proposed amendment contains two parts (Part A and Part B). The
Commission is considering whether to promulgate either or both of these
parts, as they are not mutually exclusive.
Part A of the proposed amendment responds to an issue brought to
the Commission's attention by the Department of Justice. See Annual
Letter from the Department of Justice to the Commission (July 31,
2017), available at https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/20170731/DOJ.pdf. In its annual letter
to the Commission, the Department suggested that the illegal reentry
guideline's enhancements for prior convictions (other than convictions
for illegal reentry) contain a gap in coverage. Subsection (b)(2) of
the guideline provides for an increase in the defendant's offense level
if, before the defendant was ordered deported or ordered removed from
the United States for the first time, the defendant ``sustained . . . a
conviction'' for a felony offense (other than an illegal reentry
offense) or ``three or more convictions'' for certain misdemeanor
offenses. Subsection (b)(3) of the guideline provides for an increase
in the defendant's offense level, if after the defendant was ordered
deported or ordered removed from the United States for the first time,
the defendant ``engaged in criminal conduct resulting in'' such a
felony conviction or three or more such misdemeanor convictions.
Neither subsection (b)(2) nor subsection (b)(3), however, provides for
an increase in the defendant's offense level in the situation where a
defendant engaged in criminal conduct before being ordered deported or
ordered removed from the United States for the first time but did not
sustain a conviction or convictions for that criminal conduct until
after he or she was first ordered deported or ordered removed.
Part A of the proposed amendment would amend Sec. 2L1.2 to cover
this situation by revising subsection (b)(2) so that its applicability
turns on whether the defendant ``engaged in criminal conduct'' before
he or she was first ordered deported or order removed, rather than
whether the defendant sustained the resulting conviction or convictions
before that event. Part A would also make non-substantive, conforming
changes to the language of subsection (b)(3).
An issue for comment is also provided.
Part B of the proposed amendment responds to an issue that has
arisen in litigation concerning how Sec. 2L1.2's enhancements for
prior convictions apply in the situation where a defendant's prior
conviction included a term of probation, parole, or supervised release
that was subsequently revoked and an additional term of imprisonment
imposed.
As described above, subsections (b)(2) and (b)(3) of Sec. 2L1.2
provide for increases in a defendant's offense level for prior
convictions (other than convictions for illegal reentry). The magnitude
of the offense level increase that the subsections provide for a prior
felony conviction varies depending on the length of the ``sentence
imposed.'' Application Note 2 of the Commentary to Sec. 2L1.2 states
that `` `[s]entence imposed' has the meaning given the term `sentence
of imprisonment' in Application Note 2 and subsection (b) of Sec.
4A1.2 (Definitions and Instructions for Computing Criminal History).''
Under Sec. 4A1.2, the ``sentence of imprisonment'' includes not only
the original term of imprisonment imposed but also any term of
imprisonment imposed upon revocation of probation, parole, or
supervised release. See USSG Sec. 4A1.2, comment. (n.11). Consistent
with that approach, Application Note 2 of the Commentary to Sec. 2L1.2
states that, under Sec. 2L1.2, ``[t]he length of the sentence imposed
includes any term of imprisonment given upon revocation of probation,
parole, or supervisory release.'' Two courts of appeals have held,
however, that, under Sec. 2L1.2(b)(2), the ``sentence imposed'' does
not include a period of imprisonment imposed upon revocation of
probation, parole, or supervisory release if that revocation occurred
after the defendant was ordered deported or ordered removed from the
United States for the first time. See United States v. Martinez, 870
F.3d 1163 (9th Cir. 2017); United States v. Franco-Galvan, 846 F.3d 338
(5th Cir. 2017).
Part B of the proposed amendment would revise the definition of
``sentence imposed'' in Application Note 2 of the Commentary to Sec.
2L1.2 to clarify that, consistent with the meaning of ``sentence of
imprisonment'' under Sec. 4A1.2, the phrase ``sentence imposed'' in
Sec. 2L1.2 includes any term of imprisonment given upon revocation of
probation, parole, or supervised release, regardless of when the
revocation occurred.
Proposed Amendment
(A) Closing the Coverage Gap
Section 2L1.2(b)(2) is amended by striking ``the defendant
sustained'' and inserting ``the defendant engaged in criminal conduct
that, at any time, resulted in''.
Section 2L1.2(b)(3) is amended by striking ``If, at any time after
the defendant was ordered deported or ordered removed from the United
States for the first time, the defendant engaged in criminal conduct
resulting in'' and inserting ``If, after the defendant was ordered
deported or ordered removed from the United States for the first time,
the defendant engaged in criminal conduct that, at any time, resulted
in''.
Issue for Comment
1. The Commission has received comments indicating that the
enhancements for prior convictions (other than convictions for illegal
reentry) in Sec. 2L1.2 (Unlawfully Entering or Remaining in the United
States) currently do not apply in the situation where a defendant
engaged in criminal conduct before being ordered deported or ordered
removed from the United States for the first time but did not sustain a
conviction or convictions for that criminal conduct until after he or
she was first ordered deported or ordered removed. Part A of the
proposed amendment would address this situation by revising the
language of Sec. 2L1.2(b)(2) so that its applicability would turn on
when the defendant ``engaged in criminal conduct resulting in'' one or
more of the covered convictions, rather than when the
[[Page 3878]]
defendant ``sustained'' that ``conviction'' or ``convictions.''
Should the Commission amend Sec. 2L1.2 to cover the situation
where a defendant engages in criminal conduct before a first order of
removal or deportation but does not sustain a conviction or convictions
for the criminal conduct until after that order? How frequently does
this situation occur? Does Part A of the proposed amendment
appropriately address this situation? Should the Commission address the
situation differently? If so, how?
(B) Treatment of Revocations of Probation, Parole, or Supervised
Release
The Commentary to Sec. 2L1.2 captioned ``Application Notes'' is
amended in Note 2 in the paragraph that begins `` `Sentence imposed'
has the meaning'' by striking ``term of imprisonment given upon
revocation of probation, parole, or supervised release'' and inserting
``term of imprisonment given upon revocation of probation, parole, or
supervised release, regardless of when the revocation occurred''.
3. Technical Amendment
Synopsis of the Proposed Amendment: This proposed amendment makes
various technical changes to the Guidelines Manual.
First, the proposed amendment makes technical changes to provide
updated references to certain sections in the United States Code that
were restated in legislation. As part of an Act to codify existing law
relating to the National Park System, Congress repealed numerous
sections in Title 16 of the United States Code, and restated them in
Title 18 and a newly enacted Title 54. See Public Law 113-287 (Dec. 19,
2014). The proposed amendment amends the Commentary to Sec. 2B1.5
(Theft of, Damage to, or Destruction of, Cultural Heritage Resources or
Paleontological Resources; Unlawful Sale, Purchase, Exchange,
Transportation, or Receipt of Cultural Heritage Resources or
Paleontological Resources) to correct outdated references to certain
sections in Title 16 that were restated, with minor revisions, when
Congress enacted Title 54. It also deletes from the Commentary to Sec.
2B1.5 the provision relating to the definition of ``historic
resource,'' as that term was omitted from Title 54. In addition, the
proposed amendment makes a technical change to Appendix A (Statutory
Index), to correct an outdated reference to 16 U.S.C. 413 by replacing
it with the appropriate reference to 18 U.S.C. 1865(c).
Second, the proposed amendment also makes technical changes to
reflect the editorial reclassification of certain sections in the
United States Code. Effective September 1, 2017, the Office of Law
Revision Counsel transferred certain provisions bearing on crime
control and law enforcement, previously scattered throughout various
parts of the United States Code, to a new Title 34. To reflect the new
section numbers of the reclassified provisions, Part B of the proposed
amendment makes changes to--
(1) The Commentary to Sec. 2A3.5 (Failure to Register as a Sex
Offender);
(2) the Commentary to Sec. 2X5.2 (Class A Misdemeanors (Not
Covered by Another Specific Offense Guideline));
(3) subsection (a)(10) of Sec. 5B1.3 (Conditions of Probation);
(4) subsection (a)(8) of Sec. 5D1.3 (Conditions of Supervised
Release); and
(5) Appendix A (Statutory Index), by updating references to certain
sections in Title 42 to reflect their reclassified section numbers in
the new Title 34.
Finally, the proposed amendment revises subsection (a) of Sec.
8C2.1 (Applicability of Fine Guidelines) by deleting an outdated
reference to Sec. 2C1.6, which was deleted by consolidation with Sec.
2C1.2 (Offering, Giving, Soliciting, or Receiving a Gratuity) effective
November 1, 2004.
Proposed Amendment
The Commentary to Sec. 2A3.5 captioned ``Application Notes'' is
amended in Note 1--
in the paragraph that begins `` `Sex offense' has the meaning'' by
striking ``42 U.S.C. 16911(5)'' and inserting ``34 U.S.C. 20911(5)'';
and in the paragraph that begins `` `Tier I offender', `Tier II
offender', and `Tier III offender' have the meaning'' by striking ``42
U.S.C. 16911'' and inserting ``34 U.S.C. 20911''.
The Commentary to Sec. 2B1.5 captioned ``Application Notes'' is
amended--
in Note 1(A) by striking clause (ii) and redesignating clauses (iii)
through (vii) as clauses (ii) through (vi), respectively;
in Note 1(A)(i) by striking ``16 U.S.C. 470w(5)'' and inserting ``54
U.S.C. 300308'';
in Note 3(C) by striking ``16 U.S.C. 470a(a)(1)(B)'' and inserting ``54
U.S.C. 302102'';
in Note 3(E) by striking ``the Antiquities Act of 1906 (16 U.S.C.
431)'' and inserting ``54 U.S.C. 320301'';
and in Note 3(F) by striking ``16 U.S.C. 1c(a)'' and inserting ``54
U.S.C. 100501''.
The Commentary to Sec. 2X5.2 captioned ``Statutory Provisions'' is
amended by striking ``42 U.S.C. 14133'' and inserting ``34 U.S.C.
12593''.
Section 5B1.3(a)(10) is amended by striking ``42 U.S.C. 14135a''
and inserting ``34 U.S.C. 40702''.
Section 5D1.3(a)(8) is amended by striking ``42 U.S.C. 14135a'' and
inserting ``34 U.S.C. 40702''.
Section 8C2.1(a) is amended by striking ``Sec. Sec. 2C1.1, 2C1.2,
2C1.6;'' and inserting ``Sec. Sec. 2C1.1, 2C1.2;''.
Appendix A (Statutory Index) is amended--
by striking the line referenced to 16 U.S.C. 413;
by inserting after the line referenced to 18 U.S.C. 1864 the following:
``18 U.S.C. 1865(c) 2B1.1'';
by inserting after the line referenced to 33 U.S.C. 3851 the following:
``34 U.S.C. 10251 2B1.1
34 U.S.C. 10271 2B1.1
34 U.S.C. 12593 2X5.2
34 U.S.C. 20962 2H3.1
34 U.S.C. 20984 2H3.1'';
and by striking the lines referenced to 42 U.S.C. 3791, 42 U.S.C. 3795,
42 U.S.C. 14133, 42 U.S.C. 16962, and 42 U.S.C. 16984.
[FR Doc. 2018-01328 Filed 1-25-18; 8:45 am]
BILLING CODE 2210-40-P