[Federal Register Volume 83, Number 88 (Monday, May 7, 2018)]
[Notices]
[Pages 20145-20160]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09549]
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UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice of submission to Congress of amendments to the
sentencing guidelines effective November 1, 2018.
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SUMMARY: Pursuant to its authority, the Commission has promulgated
amendments to the sentencing guidelines, policy statements, commentary,
and statutory index. This notice sets forth the amendments and the
reason for each amendment.
DATES: The Commission has specified an effective date of November 1,
2018, for the amendments set forth in this notice.
FOR FURTHER INFORMATION CONTACT: Christine Leonard, Director, Office of
[[Page 20146]]
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 generally submits guideline
amendments to the Congress pursuant to 28 U.S.C. 994(p) not later than
the first day of May each year. Absent action of the Congress to the
contrary, submitted amendments become effective by operation of law on
the date specified by the Commission (generally November 1 of the year
in which the amendments are submitted to Congress).
Notices of the proposed amendments were published in the Federal
Register on August 25, 2017 (see 82 FR 40651) and January 26, 2018 (see
83 FR 3869). The Commission held public hearings on the proposed
amendments in Washington, DC, on February 8 and March 14, 2018. On
April 30, 2018, the Commission submitted these amendments to the
Congress and specified an effective date of November 1, 2018.
The text of the amendments to the sentencing guidelines, policy
statements, commentary, and statutory index, and the reason for each
amendment, are set forth below. Additional information pertaining to
the amendments described in this notice may be accessed through the
Commission's website at www.ussc.gov.
Authority: 28 U.S.C. 994(a), (o), and (p); USSC Rules of
Practice and Procedure 2.2, 4.1.
William H. Pryor Jr.,
Acting Chair.
Amendments to the Sentencing Guidelines, Policy Statements, and
Official Commentary
1. Amendment: The Commentary to Sec. 1B1.1 captioned ``Application
Notes'' is amended in Note 1 by redesignating paragraphs (D) through
(L) as paragraphs (E) through (M), respectively; and by inserting the
following new paragraph (D):
``(D) `Court protection order' means `protection order' as defined
by 18 U.S.C. 2266(5) and consistent with 18 U.S.C. 2265(b).''.
The Commentary to Sec. 2B3.1 captioned ``Application Notes'' is
amended in Note 2 by striking ``Application Note 1(D)(ii) of Sec.
1B1.1'' and inserting ``Application Note 1(E)(ii) of Sec. 1B1.1''.
The Commentary to Sec. 2L1.1 captioned ``Application Notes'' is
amended in Note 4 by striking ``Application Note 1(L) of Sec. 1B1.1''
and inserting ``Application Note 1(M) of Sec. 1B1.1''.
Section 4A1.3(a)(2) is amended by striking ``subsection (a)'' and
inserting ``subsection (a)(1)''; and by striking ``sentences for
foreign and tribal offenses'' and inserting ``sentences for foreign and
tribal convictions''.
The Commentary to Sec. 4A1.3 captioned ``Application Notes'' is
amended--
in Note 2 by inserting at the end the following new paragraph (C):
``(C) Upward Departures Based on Tribal Court Convictions.--In
determining whether, or to what extent, an upward departure based on a
tribal court conviction is appropriate, the court shall consider the
factors set forth in Sec. 4A1.3(a) above and, in addition, may
consider relevant factors such as the following:
(i) The defendant was represented by a lawyer, had the right to a
trial by jury, and received other due process protections consistent
with those provided to criminal defendants under the United States
Constitution.
(ii) The defendant received the due process protections required
for criminal defendants under the Indian Civil Rights Act of 1968,
Public Law 90-284, as amended.
(iii) The tribe was exercising expanded jurisdiction under the
Tribal Law and Order Act of 2010, Public Law 111-211.
(iv) The tribe was exercising expanded jurisdiction under the
Violence Against Women Reauthorization Act of 2013, Public Law 113-4.
(v) The tribal court conviction is not based on the same conduct
that formed the basis for a conviction from another jurisdiction that
receives criminal history points pursuant to this Chapter.
(vi) The tribal court conviction is for an offense that otherwise
would be counted under Sec. 4A1.2 (Definitions and Instructions for
Computing Criminal History).'';
and in Note 3 by striking ``A departure below the lower limit of the
applicable guideline range for Criminal History Category I is
prohibited under subsection (b)(2)(B)'' and inserting ``A departure
below the lower limit of the applicable guideline range for Criminal
History Category I is prohibited under subsection (b)(2)(A)''.
Reason for Amendment: This two-part amendment addresses federal
sentencing issues related to offenses committed in Indian country. The
amendment responds to the findings and recommendations made by the
Commission's ad hoc Tribal Issues Advisory Group in its report to the
Commission. See Report of the Tribal Issues Advisory Group (May 16,
2016), http://www.ussc.gov/research/research-publications/report-tribal-issues-advisory-group.
The amendment adds a definition of ``court protection order'' in
the guidelines. This issue was initially raised by the Commission's
Victims Advisory Group and subsequently addressed in the Tribal Issues
Advisory Group's May 2016 report. The amendment amends Sec. 1B1.1
(Application Instructions) to add a definition of ``court protection
order'' that incorporates by reference the statutory definition of a
``protection order'' as set forth in 18 U.S.C. 2266(5) and consistent
with 18 U.S.C. 2265(b). Under the Guidelines Manual, the violation of a
court protection order is a specific offense characteristic in three
Chapter Two offense guidelines. See USSG Sec. Sec. 2A2.2 (Aggravated
Assault), 2A6.1 (Threatening or Harassing Communications; Hoaxes; False
Liens), and 2A6.2 (Stalking or Domestic Violence).
The amendment responds to concerns that the term ``court protection
order'' has not been defined in the guidelines and should be clarified.
Providing a clear definition of a ``court protection order'' in the
Guidelines Manual will ensure that orders used for sentencing
enhancements are the result of court proceedings assuring appropriate
due process protections, that there is a consistent identification and
treatment of such orders, and that such orders issued by tribal courts
receive treatment consistent with that of other issuing jurisdictions.
The amendment also makes conforming technical changes to the Commentary
of Sec. Sec. 2B1.3 (Robbery) and 2L1.1 (Smuggling, Transporting, or
Harboring an Unlawful Alien).
The amendment addresses the treatment of tribal court convictions
in Chapter Four (Criminal History and Criminal Livelihood) of the
Guidelines Manual. Subsection (i) of Sec. 4A1.2 (Definitions and
Instructions for Computing Criminal History) provides that sentences
resulting from tribal court convictions are not counted in calculating
a defendant's criminal history score but may be considered for an
upward departure under Sec. 4A1.3 (Departures Based on Inadequacy of
Criminal History Category (Policy Statement)). Section 4A1.3 provides
for an upward departure for prior sentences that are not used in
computing the
[[Page 20147]]
criminal history category, such as sentences for tribal convictions,
where reliable information suggests that the defendant's criminal
history category under-represents the seriousness of the defendant's
prior record.
Tribal court convictions have been excluded from the criminal
history score but have been a legitimate basis for upward departure
since the original guidelines were promulgated in 1987. In recent
years, some tribal courts have gained enhanced sentencing authority
under the Tribal Law and Order Act of 2010, Public Law 111-211 (July
29, 2010), and expanded jurisdiction over non-Indian defendants in
domestic abuse cases under the Violence Against Women Act
Reauthorization Act of 2013, Public Law 113-4 (Mar. 7, 2013). Many
tribal courts have also begun to increase due process protections and
reliable record-keeping.
In recognition of these developments, the amendment provides
additional guidance to courts on how to apply the departure provision
at Sec. 4A1.3 in cases involving a defendant with a history of tribal
convictions. Specifically, the amendment amends the Commentary to Sec.
4A1.3 at Application Note 2(c) to provide the following non-exhaustive
list of six factors that courts may consider in deciding whether or to
what extent an upward departure based on a tribal conviction may be
appropriate:
(i) The defendant was represented by a lawyer, had the right to a
trial by jury, and received other due process protections consistent
with those provided to criminal defendants under the United States
Constitution.
(ii) The defendant received the due process protections required
for criminal defendants under the Indian Civil Rights Act of 1968,
Public Law 90-284, as amended.
(iii) The tribe was exercising expanded jurisdiction under the
Tribal Law and Order Act of 2010, Public Law 111-211.
(iv) The tribe was exercising expanded jurisdiction under the
Violence Against Women Reauthorization Act of 2013, Public Law 113-4.
(v) The tribal court conviction is not based on the same conduct
that formed the basis for a conviction from another jurisdiction that
receives criminal history points pursuant to this Chapter.
(vi) The tribal court conviction is for an offense that otherwise
would be counted under Sec. 4A1.2 (Definitions and Instructions for
Computing Criminal History).
Because of the many cultural and historical differences among
federally-recognized tribes, and especially among their tribal court
systems, the Commission determined that--despite recent developments in
Indian law to enlarge the scope of tribal court jurisdiction and the
availability of due process in tribal court proceedings--a single
approach to the consideration of tribal convictions would be difficult
and could potentially lead to a disparate result among Indian
defendants in federal courts. The amendment, therefore, reflects the
Commission's view that additional guidance about how to apply the
departure provision at Sec. 4A1.3 in cases involving a defendant with
a history of tribal convictions is appropriate, and that the non-
exhaustive list of factors provides appropriate guidance and a more
structured analytical framework under Sec. 4A1.3. The Commission
intends, as informed by the Tribal Issues Advisory Group Report and
public comment, that none of the factors should be determinative, but
collectively the factors reflect important considerations to help
courts balance the rights of defendants, the unique and important
status of tribal courts, the need to avoid disparate sentences because
of varying tribal court practices and circumstances, and the goal of
accurately assessing a defendant's criminal history.
The amendment also includes two technical changes to Sec. 4A1.3.
First, the amendment amends Sec. 4A1.3(a)(2)(A) to change the phrase
``sentences for foreign and tribal offenses'' to ``sentences for
foreign and tribal convictions'' to track the parallel language in
Sec. 4A1.2(h) and (i). Second, the amendment makes a clerical change
in Application Note 3 to correct an inaccurate reference to Sec.
4A1.3(b)(2)(B).
2. Amendment: Section 2B1.1(b) is amended by redesignating
paragraphs (13) through (19) as paragraphs (14) through (20),
respectively; and by inserting the following new paragraph (13):
``(13) If the defendant was convicted under 42 U.S.C. 408(a),
1011(a), or 1383a(a) and the statutory maximum term of ten years'
imprisonment applies, increase by 4 levels. If the resulting offense
level is less than 12, increase to level 12.'';
and in paragraph (17) (as so redesignated) by striking ``subsections
(b)(2) and (b)(16)(B)'' and inserting ``subsections (b)(2) and
(b)(17)(B)''.
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is
amended--
by redesignating Notes 11 through 20 as Notes 12 through 21,
respectively; and by inserting the following new Note 11:
``11. Interaction of Subsection (b)(13) and Sec. 3B1.3 (Abuse of
Position of Trust or Use of Special Skill).--If subsection (b)(13)
applies, do not apply Sec. 3B1.3.'';
in Note 12 (as so redesignated) by striking ``(b)(14)'' both places
such term appears and inserting ``(b)(15)'';
in Note 13 (as so redesignated) by striking ``(b)(16)(A)'' both places
such term appears and inserting ``(b)(17)(A)'';
in Note 14 (as so redesignated) by striking ``(b)(16)(B)'' and
inserting ``(b)(17)(B)''; by striking ``(b)(16)(B)(i)'' and inserting
``(b)(17)(B)(i)''; and by striking ``(b)(16)(B)(ii)'' and inserting
``(b)(17)(B)(ii)'';
in Note 15 (as so redesignated) by striking ``(b)(18)'' both places
such term appears and inserting ``(b)(19)''; by striking
``(b)(18)(A)(iii)'' both places such term appears and inserting
``(b)(19)(A)(iii)''; and by striking ``(b)(16)(B)'' both places such
term appears and inserting ``(b)(17)(B)'';
in Note 16 (as so redesignated) by striking ``(b)(19)'' each place such
term appears and inserting ``(b)(20)'';
and in Note 21(B) (as so redesignated) by striking ``(b)(18)(A)(iii)''
and inserting ``(b)(19)(A)(iii)''.
The Commentary to Sec. 2B1.1 captioned ``Background'' is amended
by striking ``(b)(13)'' and inserting ``(b)(14)''; by striking
``(b)(15)(B)'' and inserting ``(b)(16)(B)''; by striking ``(b)(16)(A)''
and inserting ``(b)(17)(A)''; by striking ``(b)(16)(B)(i)'' and
inserting ``(b)(17)(B)(i)''; by striking ``Subsection (b)(17)
implements the directive in section 209'' and inserting ``Subsection
(b)(18) implements the directive in section 209''; by striking
``Subsection (b)(18) implements the directive in section 225(b)'' and
inserting ``Subsection (b)(19) implements the directive in section
225(b)''; and by striking ``(b)(18)(B)'' and inserting ``(b)(19)(B)''.
Appendix A (Statutory Index) is amended in the line referenced to
42 U.S.C. 408 by inserting ``, 2X1.1'' at the end; in the line
referenced to 42 U.S.C. 1011 by inserting ``, 2X1.1'' at the end; and
in the line referenced to 42 U.S.C. 1383a(a) by inserting ``, 2X1.1''
at the end.
Reason for Amendment: This amendment responds to the Bipartisan
Budget Act of 2015 (``the Act''), Public Law 114-74 (Nov. 2, 2015),
which made numerous changes to the statutes governing Social Security
fraud offenses at 42 U.S.C. 408, 1011, and 1383a. The Act added new
subsections criminalizing conspiracy to commit fraud for selected
substantive offenses already proscribed in Title 42 and added an
increased statutory penalty provision for certain persons who
[[Page 20148]]
commit fraud offenses under the relevant Social Security programs.
In response to these statutory changes, the amendment makes changes
to both Sec. 2B1.1 (Theft, Property Destruction, and Fraud) and
Appendix A (Statutory Index). The amendment to Sec. 2B1.1 addresses
the increased penalty provisions of the Act by adding a new specific
offense characteristic with a 4-level enhancement and a minimum offense
level of 12 for those defendants subject to a 10-year statutory
maximum, and adds commentary precluding the application of an
adjustment under Sec. 3B1.3 (Abuse of Position of Trust or Use of
Special Skill) when the new enhancement applies. The amendment to
Appendix A references the new conspiracy subsections to the appropriate
guidelines.
First, the amendment adds a specific offense characteristic to
Sec. 2B1.1 in response to the enhanced penalty provisions of the Act.
The new enhancement provides for a 4-level increase, as well as a
minimum offense level of 12, for those defendants convicted under the
relevant statutes and subject to the 10-year statutory maximum. The
enhancement reflects both Congress's and the Commission's determination
regarding the seriousness of these offenses, and further reflects the
difficulty in calculating the true harm caused by such defendants,
including the harm to the integrity and financial strength of the
Social Security program and to legitimate Social Security program
benefit recipients who face delays as a result of the review of claims
submitted in these cases. The Commission was also persuaded in its
determination by the significant administrative efforts and costs
resulting from the regulatory requirement that the Social Security
Administration review and redetermine the benefit eligibility for every
benefit recipient associated with the defendant, whether part of the
fraudulent conduct or not. The new enhancement reflects the increased
harm caused by these types of cases compared to those types of fraud
sentenced under Sec. 2B1.1 for which the loss table more appropriately
reflects the severity of the offense.
Similar to other minimum offense levels in Sec. 2B1.1, the minimum
offense level is intended to account for the difficulty in calculating
the amount of loss, as well as the unique and non-monetary harms
associated with offenses sentenced under the Act. As previously
explained in similar contexts, ``[t]he Commission frequently adopts a
minimum offense level in circumstances in which, as in these cases,
loss as calculated by the guidelines is difficult to compute or does
not adequately account for the harm caused by the offense.'' USSG, App.
C, Amendment 719 (effective Nov. 1, 2008).
In establishing the 4-level increase, the Commission also added
commentary precluding the application of an adjustment under Sec.
3B1.3 to those defendants who are subject to the Act's increased
statutory maximum penalty. In the Act, Congress specifically defined
positions of trust in the context of Social Security fraud by
subjecting to the increased statutory maximum penalties those
defendants who were:
a person who receives a fee or other income for services performed in
connection with any determination with respect to benefits under this
subchapter (including a claimant representative, translator, or current
or former employee of the Social Security Administration), or who is a
physician or other health care provider who submits, or causes the
submission of, medical or other evidence in connection with any such
determination. . . .
The Commission precluded application of Sec. 3B1.3 to these
defendants because the new 4-level enhancement fully accounts for their
special position. Addressing the abuse of special position in this
manner will avoid uncertainty, prolonged sentencing hearings, and
appeals regarding application of the abuse of trust adjustment to
offenders subject to the increased statutory maximum penalties of the
Act.
Second, the amendment amends Appendix A to reference the new
conspiracy offenses under 42 U.S.C. 408, 1011, and 1383a to Sec. 2X1.1
(Attempt, Solicitation, or Conspiracy (Not Covered by a Specific
Offense Guideline)). The Commission determined that referencing these
conspiracy provisions to Sec. 2X1.1, as well as the guideline
referenced in the statutory index for the substantive offense, is
consistent with the instructions at Sec. 1B1.2 (Applicable
Guidelines).
3. Amendment: Section 2D1.1 is amended--
by redesignating subsections (b)(13) through (b)(17) as subsections
(b)(14) through (b)(18), respectively; and by inserting the following
new subsection (b)(13):
``(13) If the defendant knowingly misrepresented or knowingly
marketed as another substance a mixture or substance containing
fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide) or
a fentanyl analogue, increase by 4 levels.'';
and in each of subsections (c)(1) through (c)(14) by striking ``of
Fentanyl'' each place such term appears and inserting ``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 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 includes all salts, isomers, all salts of
isomers, and, except as otherwise provided, any analogue of that
controlled substance'' and inserting ``Except as otherwise provided,
any reference to a particular controlled substance in these guidelines
includes all salts, isomers, all salts of isomers, and any analogue of
that controlled substance''; 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'';
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 line:
``1 gm of a Fentanyl Analogue = 10 kg of marihuana'';
in the table under the heading ``Cocaine and Other Schedule I and II
Stimulants (and their immediate precursors)*'', by striking the
following line:
``1 gm of Methcathinone = 380 gm of marihuana'';
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) = 380 gm of marihuana
[[Page 20149]]
*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.'';
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 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
binds to and activates type 1 cannabinoid receptors (CB1
receptors).'';
in Note 16 by striking ``Sec. 2D1.1(b)(15)(D)'' and inserting
``Sec. 2D1.1(b)(16)(D)'';
in Note 18 by striking ``(b)(13)'' and inserting ``(b)(14)''; by
striking ``(b)(13)(A)'' each place such term appears and inserting
``(b)(14)(A)''; by striking ``(b)(13)(C)-(D)'' and inserting
``(b)(14)(C)-(D)''; by striking ``(b)(13)(C)(ii)'' and inserting
``(b)(14)(C)(ii)''; and by striking ``(b)(13)(D)'' and inserting
``(b)(14)(D)''.
in Note 19 by striking ``(b)(14)'' each place such term appears and
inserting ``(b)(15)''; and by striking ``(b)(13)(A)'' and inserting
``(b)(14)(A)'';
in Note 20 by striking ``(b)(15)'' and inserting ``(b)(16)''; by
striking ``(b)(15)(B)'' both places such term appears and inserting
``(b)(16)(B)''; by striking ``(b)(15)(C)'' each place such term appears
and inserting ``(b)(16)(C)''; and by striking ``(b)(15)(E)'' both
places such term appears and inserting ``(b)(16)(E)'';
in Note 21 by striking ``(b)(17)'' each place such term appears and
inserting ``(b)(18)'';
and in Note 27 by inserting at the end the following new paragraphs:
``(D) Departure Based on Potency of Synthetic Cathinones.--In
addition to providing marihuana equivalencies for specific controlled
substances and groups of substances, the Drug Equivalency Tables
provide marihuana equivalencies for certain classes of controlled
substances, such as synthetic cathinones. In the case of a synthetic
cathinone that is not specifically referenced in this guideline, the
marihuana equivalency for the class should be used to determine the
appropriate offense level. However, there may be cases in which a
substantially lesser or greater quantity of a synthetic cathinone is
needed to produce an effect on the central nervous system similar to
the effect produced by a typical synthetic cathinone in the class, such
as methcathinone or alpha-PVP. In such a case, a departure may be
warranted. For example, an upward departure may be warranted in cases
involving MDPV, a substance of which a lesser quantity is usually
needed to produce an effect on the central nervous system similar to
the effect produced by a typical synthetic cathinone. In contrast, a
downward departure may be warranted in cases involving methylone, a
substance of which a greater quantity is usually needed to produce an
effect on the central nervous system similar to the effect produced by
a typical synthetic cathinone.
(E) Departures for Certain Cases involving Synthetic
Cannabinoids.--
(i) Departure Based on Concentration of Synthetic Cannabinoids.--
Synthetic cannabinoids are manufactured as powder or crystalline
substances. The concentrated substance is then usually sprayed on or
soaked into a plant or other base material, and trafficked as part of a
mixture. Nonetheless, there may be cases in which the substance
involved in the offense is a synthetic cannabinoid not combined with
any other substance. In such a case, an upward departure would be
warranted.
There also may be cases in which the substance involved in the
offense is a mixture containing a synthetic cannabinoid diluted with an
unusually high quantity of base material. In such a case, a downward
departure may be warranted.
(ii) Downward Departure Based on Potency of Synthetic
Cannabinoids.--In the case of a synthetic cannabinoid that is not
specifically referenced in this guideline, the marihuana equivalency
for the class should be used to determine the appropriate offense
level. However, there may be cases in which a substantially greater
quantity of a synthetic cannabinoid is needed to produce an effect on
the central nervous system similar to the effect produced by a typical
synthetic cannabinoid in the class, such as JWH-018 or AM-2201. In such
a case, a downward departure may be warranted.''.
The Commentary to Sec. 2D1.1 captioned ``Background'' is amended
by striking ``(b)(13)(A)'' and inserting ``(b)(14)(A)''; by striking
``(b)(13)(C)(ii)'' and inserting ``(b)(14)(C)(ii)''; by striking
``Subsection (b)(15) implements the directive to the Commission in
section 6(3)'' and inserting ``Subsection (b)(16) implements the
directive to the Commission in section 6(3)''; and by striking
``Subsection (b)(16) implements the directive to the Commission in
section 7(2)'' and inserting ``Subsection (b)(17) implements the
directive to the Commission in section 7(2)''.
The Commentary to Sec. 2D1.6 captioned ``Application Note'' is
amended in Note 1 by striking ``, fentanyl'' and inserting ``, fentanyl
(N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide)''.
Section 2D1.14(a)(1) is amended by striking ``(b)(17)'' and
inserting ``(b)(18)''.
The Commentary to Sec. 3B1.4 captioned ``Application Notes'' is
amended in Note 2 by striking ``Sec. 2D1.1(b)(15)(B)'' and inserting
``Sec. 2D1.1(b)(16)(B)''.
The Commentary to Sec. 3C1.1 captioned ``Application Notes'' is
amended in Note 7 by striking ``Sec. 2D1.1(b)(15)(D)'' and inserting
``Sec. 2D1.1(b)(16)(D)''.
Reason for Amendment: This amendment is a result of the
Commission's multi-year 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. The study
included extensive data collection, review of scientific literature,
multiple public comment periods, and four public hearings. The
resulting amendment makes various changes to Sec. 2D1.1 pertaining to
synthetic controlled substances.
The amendment first addresses fentanyl and fentanyl analogues. The
Commission learned that while fentanyl has long been a drug of abuse,
there are several indications that its abuse has become both more
prevalent and more dangerous in recent years. For example, the Drug
Enforcement Administration observed a dramatic increase in fentanyl
reports between 2013 and 2015, and the Centers for Disease Control and
Prevention reported that there were 9,580 deaths involving synthetic
opioids (a category including fentanyl) in 2015, a 72.2 percent
increase from 2014. The Commission received testimony and other
information indicating that fentanyl and its analogues are often
trafficked mixed with other controlled substances, including heroin and
cocaine. In other instances, fentanyl is placed in pill or tablet form
by drug traffickers. Although some purchasers of these substances may
be aware that they
[[Page 20150]]
contain fentanyl (or even seek them out for that reason), others may
believe that they are purchasing heroin or pharmaceutically
manufactured opioid pain relievers.
Because of fentanyl's extreme potency, the risk of overdose death
is great, particularly when the user is inexperienced or unaware of
what substance he or she is using. To address this harm, the amendment
adds a new specific offense characteristic at Sec. 2D1.1(b)(13) to
provide for a 4-level increase whenever the defendant knowingly
misrepresented or knowingly marketed as another substance a mixture or
substance containing fentanyl or a fentanyl analogue. The Commission
determined that it is appropriate for traffickers who knowingly
misrepresent fentanyl or a fentanyl analogue as another substance to
receive additional punishment. If an offender does not know the
substance contains fentanyl or a fentanyl analogue, the enhancement
does not apply. The specific offense characteristic includes a mens rea
requirement to ensure that only the most culpable offenders are
subjected to these increased penalties.
The amendment also makes a definitional change in the Guidelines
Manual. Title 21, United States Code, refers to fentanyl by reference
to its chemical name (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]
propanamide) and sets mandatory minimum penalties for certain
quantities of this substance and for analogues of N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] propanamide, although lesser quantities of
the analogues are required to trigger the mandatory minimum penalties.
See, e.g., 21 U.S.C. 841(b)(1)(A)(vi). Consistent with its past
practice concerning setting drug-trafficking penalties, the Commission
relied upon the statutory framework in setting penalties for fentanyl
and fentanyl analogues. Fentanyl has a marihuana equivalency of
1:2,500, while fentanyl analogues have a marihuana equivalency of
1:10,000. In the Guidelines Manual, however, the Commission did not use
the chemical name for fentanyl reflected in Title 21. Instead, the
Commission used the terms ``fentanyl'' and ``fentanyl analogue'' in the
Drug Quantity Table.
Commission data suggests that offenses involving fentanyl analogues
are increasing in the federal caseload. In studying these cases, the
Commission has learned that the reference to ``fentanyl analogue'' in
the Drug Quantity Table may interact in an unintended way with the
definition of ``analogue'' provided by Application Note 6 and Section
802(32) of Title 21, United States Code. Because the guideline
incorporates by reference the statutory definition of ``controlled
substance analogue,'' and that definition specifically excludes already
listed ``controlled substances,'' it appears that a scheduled fentanyl
analogue cannot constitute a ``controlled substance analogue,'' and
thus does not constitute a fentanyl ``analogue'' for purposes of Sec.
2D1.1. This may have the result that, at sentencing, fentanyl analogues
that have already been scheduled must go through the Application Note 6
process to determine the substance most closely related to them.
Additionally, based on implementation of Application Note 6, many
courts have then sentenced such analogue cases at the lower fentanyl
ratio rather than the higher ratio applicable to fentanyl analogues in
the Drug Quantity Table. To address this problem, the amendment adopts
a new definition of ``fentanyl analogue'' as ``any substance (including
any salt, isomer, or salt of isomer), whether a controlled substance or
not, that has a chemical structure that is similar to fentanyl (N-
phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide).'' This portion
of the amendment also amends the Drug Quantity Table to clarify that
Sec. 2D1.1 uses the term ``fentanyl'' to refer to the chemical name
identified by statute and deletes the current listings for alpha-
methylfentanyl and 3-methylfentanyl from the Drug Equivalency Tables.
The Commission determined that adopting this definition of
``fentanyl analogue'' will create a class of fentanyl analogues
identical to that already created by statute, clarify the legal
confusion that has resulted from the current definition of ``analogue''
in Sec. 2D1.1, and reaffirm that fentanyl analogues are treated
differently than fentanyl under the guidelines as well as the statute.
Striking the separate references to alpha-methylfentanyl and 3-
methylfentanyl will result in the treatment of these substances in
common with all other fentanyl analogues. This change, in combination
with the adoption of the definition of ``fentanyl analogue'' and
addition of fentanyl analogue to the Drug Equivalency Tables, will
limit the use of the listing for ``fentanyl'' to those cases involving
the specific substance named in Title 21.
Next, the amendment addresses synthetic cathinones and synthetic
cannabinoids. The Commission received comment from the Department of
Justice and others expressing concern that the guidelines do not
contain specific ``marihuana equivalencies'' for synthetic cathinones,
such as methylone, mephedrone, and MDPV, or synthetic cannabinoids,
such as JWH-018 and AM-2201. For substances that do not appear in
either the Drug Quantity Table or the Drug Equivalency Table,
Application Note 6 provides courts the process for calculating drug
quantities. The note directs courts to identify the ``most closely
related controlled substance referenced in [Sec. 2D1.1]'' and to then
use that drug's ratio to marihuana to calculate the quantity for
purposes of determining the base offense level. Commenters advised that
this process is a time-consuming, burdensome task that leads to
sentencing disparities. Because Commission data indicated that the
majority of cases relying on the Application Note 6 process involved
synthetic cathinones and synthetic cannabinoids, the Commission
concluded that this amendment will alleviate the burden associated with
its application.
Synthetic cathinones, also known as ``bath salts,'' are human-made
substances chemically related to cathinone, a stimulant found in the
khat plant. Although the Commission's study originally focused on
specified cathinones, such as methylone, MDPV, and mephedrone, the
Commission received comments indicating that new substances are
regularly developed and trafficked and that it would not be feasible to
establish a new ratio as each new substance enters the market. Given
the large number of potential substances, the Commission found it
impracticable to add individual marihuana equivalencies for every
synthetic cathinone. In contrast, the Commission determined a class-
based approach for synthetic cathinones should capture both current and
future synthetic cathinones.
The Commission has determined that synthetic cathinones constitute
a well-defined class. Specifically, testimony and comment presented to
the Commission consistently indicated that the whether a substance is a
synthetic cathinone is not subject to debate. Likewise, comments and
testimony made clear that synthetic cathinones share stimulant
characteristics and hallucinogenic effects. The Commission determined
that a precise definition is not necessary for such substances and that
a class-based structure could be reasonably adopted. The Commission
likewise determined that, because the class would encompass
methcathinone, currently the lone specifically listed synthetic
cathinone, the separate reference to methcathinone in the Drug
[[Page 20151]]
Equivalency Table should be deleted. Given the Commission's priority to
alleviate the burdens associated with the Application Note 6 process
and the impracticality of adding many new marihuana equivalencies, the
Commission concluded the class-based approach strikes a middle ground
between precision and ease of guideline application.
The amendment creates an entry in the Drug Equivalency Tables for
the class of synthetic cathinones, providing a marihuana equivalency of
1 gram of a synthetic cathinone (except a Schedule III, IV, or V
substance) equals 380 grams of marihuana and applies a minimum base
offense level of 12 to the class of synthetic cathinones. The
Commission set a minimum base offense level of 12 for the class of
synthetic cathinones to maintain consistency with the treatment of
other controlled substances. With limited exceptions, all other
Schedule I and II controlled substances are subject to the same minimum
base offense level. The Commission was not presented with testimony or
commentary that indicated a compelling basis to except synthetic
cathinones from the minimum offense level.
The Commission adopted the 380-gram equivalency for three reasons.
First, a review of the Commission's data indicated that the 380-gram
equivalency was both the median and approximate mean ratio utilized by
the courts when sentencing synthetic cathinone cases pursuant to
Application Note 6. Thus, the Commission determined that the 380-gram
equivalency best reflects the current sentencing practices for courts
engaging in the Application Note 6 analysis.
Second, the Commission concluded that a ratio consistent with the
existing methcathinone ratio was appropriate. The Commission set the
methcathinone ratio based upon a scientific study that found that
methcathinone was approximately 1.92 times more potent than
amphetamine. At the time, amphetamine had a marihuana equivalency of
1:200, equivalent to the current marihuana equivalency of cocaine. The
Commission's current study of cathinones did not uncover any new
scientific evidence undermining its rationale for setting the
methcathinone ratio.
Third, the Commission was presented with substantial information
about synthetic cathinones' risks. Testimony before the Commission
established that the effects and potencies of synthetic cathinones
range from ``at least as dangerous as cocaine'' to methamphetamine-
like. Medical experts discussed the substantial potential health
impacts of cathinone use, while law enforcement witnesses offered
reports of cathinone users' aggressive behavior posing threats to first
responders. With cocaine at a 1:200 ratio and methamphetamine at a
1:2,000 ratio, the Commission concluded that the ratio of 1:380
minimized the risk of frequent over-punishment for substances in this
class while providing penalty levels sufficient to account for the
specific harms caused by distribution of these substances.
In adopting a class-based approach for both ease of application and
because of the impracticability of listing every new substance in the
class as it enters the market, the Commission recognizes, however, that
some substances may be significantly more or less potent than the
typical substances in the class that the ratio was intended to reflect.
Therefore, the Commission added a departure provision to address those
substances for which a greater or lesser quantity is needed to produce
an effect on the central nervous system similar to the effect produced
by a typical synthetic cathinone.
To provide guidance to the court in determining whether to apply
the departure, the departure provision identifies substances that the
Commission found to be fair representatives of the synthetic cathinones
that would fall within the spectrum of substances included in the
class, as well as those that may warrant a departure. Specifically, the
departure provision notes that: A typical cathinone has a potency
comparable to methcathinone or alpha-PVP; methylone is an example of a
lower potency substance; and MDPV is an example of a higher potency
substance.
Synthetic cannabinoids mimic the effects of tetrahydrocannabinol
(``THC''), the main psychoactive chemical in marihuana. Unlike THC,
however, most synthetic cannabinoids are ``full agonists.'' That is,
they activate the body's type 1 cannabinoid receptors (CB1)
to a greater degree (i.e., at 100%) than THC, which activates the
CB1 receptors only at 30 to 50 percent. Additionally, unlike
THC, synthetic cannabinoids do not contain the additional substances
that moderate their adverse effects. To the contrary, they may contain
additional substances that augment their hallucinogenic effects.
Further, some forms of packaged mixtures (e.g., ``K2'', ``Spice'') may
contain preservatives, additives, and other chemicals such as
benzodiazepines that may compound the adverse effects caused by the
cannabinoids. Also unlike THC, synthetic cannabinoids have been
associated with physical harms such as organ failure and death.
Through the Commission's multi-year synthetic drug study, the
Commission learned that hundreds of synthetic cannabinoids exist. When
first marketed, synthetic cannabinoids generally have not yet been
scheduled as controlled substances. Often, once a synthetic cannabinoid
is scheduled, a new one is created to replace it. Given the large
number of potential substances, the Commission found it impracticable
to add individual marihuana equivalencies for every synthetic
cannabinoid. In contrast, the Commission determined that a class-based
approach for synthetic cannabinoids would be a better means to capture
both current and future synthetic cannabinoids.
Based on hearing testimony, the scientific literature, and public
comment, the Commission determined that all synthetic cannabinoids can
be covered by a single class because these substances share a similar
pharmacological effect: All synthetic cannabinoids bind to and activate
the CB1 receptor. Given the Commission's priority to
alleviate the burdens associated with the Application Note 6 process
and the impracticality of adding many new marihuana equivalencies, the
Commission concluded the class-based approach strikes a middle ground
between precision and ease of guideline application.
The amendment defines the term ``synthetic cannabinoid'' as ``any
synthetic substance (other than synthetic tetrahydrocannabinol) that
binds to and activates type 1 cannabinoid receptors (CB1
receptors).'' The amendment establishes a marihuana equivalency for the
class of synthetic cannabinoids of 1 gram of a synthetic cannabinoid
(except a Schedule III, IV, or V substance) equals 167 grams of
marihuana and applies a minimum base offense level of 12 to the class.
The marihuana equivalency selected for the class is identical to
the existing marihuana equivalencies for both organic and synthetic
tetrahydrocannabinol (THC). The Commission originally derived the
organic and synthetic THC equivalencies from a comparison of standard
dosage units of THC (3 mg) and marihuana (500 mg) and the relationship
between the two, rather than the actual amount of THC commonly found in
a dose of marihuana. During its current study, the Commission
considered whether to incorporate THC (synthetic) into the new
synthetic cannabinoid class. As
[[Page 20152]]
noted, the new synthetic cannabinoid class will be subject to the
minimum base offense level of 12 applicable to most Schedule I and II
controlled substances. The Commission set a minimum base offense level
of 12 to the class for consistency with other Schedule I and II
controlled substances. THC (synthetic) is not currently subject to the
same minimum offense level. Thus, incorporating THC (synthetic) into
the synthetic cannabinoid class would effectively change penalties for
certain THC (synthetic) offenses, an outcome contrary to the
Commission's intent. Consequently, THC (synthetic) is exempted from the
class, its separate marihuana equivalency is retained, and that
equivalency is applicable only in cases involving THC (synthetic).
Nevertheless, the Commission used the same marihuana equivalency
for the class of synthetic cannabinoids. Commission data for cases
involving synthetic cannabinoids indicates that the courts almost
uniformly apply the marihuana equivalency for THC to such cases. Hence,
the 1:167 ratio for the synthetic cannabinoid class reflects the
courts' current sentencing practices. Although synthetic cannabinoids
activate the CB1 receptor to a greater degree than THC, the
evidence also established that synthetic cannabinoids exhibit a range
of potencies. Those most frequently encountered in the Commission's
data exhibited potencies ranging from one to six times that of THC.
Adoption of the existing THC marihuana equivalency minimizes the risk
of frequent over-punishment for substances in this class while
providing penalty levels that are sufficient to account for the
specific harms caused by distribution of these substances.
Finally, the amendment provides two departure provisions addressing
synthetic cannabinoids. First, the amendment provides for a departure
based on the concentration of a synthetic cannabinoid. The Commission
learned that synthetic cannabinoids are manufactured as a powder or
crystalline substance and are typically sprayed on or mixed with inert
material (such as plant matter) before retail sale. As a result, a
synthetic cannabinoid seized after it has been prepared for retail sale
will typically weigh significantly more than the undiluted form of the
same controlled substance.
Given the central role of drug quantity in setting the base offense
level, an individual convicted of an offense involving a synthetic
cannabinoid mixture would likely be subject to a guideline penalty
range significantly higher than another individual convicted of an
offense involving an undiluted synthetic cannabinoid (but who could
nevertheless produce an equivalent amount of consumable product). In a
case involving undiluted synthetic cannabinoid, an upward departure may
be appropriate for that reason. By contrast, in a case where the
mixture containing synthetic cannabinoids contained a high quantity of
inert material, a downward departure may be warranted.
The second departure provision provides that a downward departure
may be appropriate where a substantially greater quantity of the
synthetic cannabinoid involved in the offense is needed to produce an
effect on the central nervous system similar to the effect produced by
a typical synthetic cannabinoid in the class. The two synthetic
cannabinoids specifically cited in the Commission's priority, JWH-018
and AM-2201, are three and a half times and five times more potent,
respectively, than THC. If an offense involves a substantially less
potent synthetic cannabinoid than JWH-018 or AM-2201, the court may
wish to consider whether a downward departure is appropriate.
4. Amendment: The Commentary to Sec. 1B1.10 captioned
``Application Notes'' is amended in Note 5 by striking ``Drug
Equivalency Tables'' and inserting ``Drug Equivalency Tables (currently
called Drug Conversion Tables)''.
Section 2D1.1(c)(1), as amended by Amendment 3 of this document, is
further amended by striking the period at the end of the line
referenced to Flunitrazepam and inserting a semicolon; and by adding at
the end the following:
`` 90,000 KG or more of Converted Drug Weight.''.
Section 2D1.1(c)(2), as amended by Amendment 3 of this document, is
further amended by striking the period at the end of the line
referenced to Flunitrazepam and inserting a semicolon; and by adding at
the end the following:
`` At least 30,000 KG but less than 90,000 KG of Converted
Drug Weight.''.
Section 2D1.1(c)(3), as amended by Amendment 3 of this document, is
further amended by striking the period at the end of the line
referenced to Flunitrazepam and inserting a semicolon; and by adding at
the end the following:
`` At least 10,000 KG but less than 30,000 KG of Converted
Drug Weight.''.
Section 2D1.1(c)(4), as amended by Amendment 3 of this document, is
further amended by striking the period at the end of the line
referenced to Flunitrazepam and inserting a semicolon; and by adding at
the end the following:
`` At least 3,000 KG but less than 10,000 KG of Converted
Drug Weight.''.
Section 2D1.1(c)(5), as amended by Amendment 3 of this document, is
further amended by striking the period at the end of the line
referenced to Flunitrazepam and inserting a semicolon; and by adding at
the end the following:
`` At least 1,000 KG but less than 3,000 KG of Converted
Drug Weight.''.
Section 2D1.1(c)(6), as amended by Amendment 3 of this document, is
further amended by striking the period at the end of the line
referenced to Flunitrazepam and inserting a semicolon; and by adding at
the end the following:
`` At least 700 KG but less than 1,000 KG of Converted
Drug Weight.''.
Section 2D1.1(c)(7), as amended by Amendment 3 of this document, is
further amended by striking the period at the end of the line
referenced to Flunitrazepam and inserting a semicolon; and by adding at
the end the following:
`` At least 400 KG but less than 700 KG of Converted Drug
Weight.''.
Section 2D1.1(c)(8), as amended by Amendment 3 of this document, is
further amended by striking the period at the end of the line
referenced to Flunitrazepam and inserting a semicolon; and by adding at
the end the following:
`` At least 100 KG but less than 400 KG of Converted Drug
Weight.''.
Section 2D1.1(c)(9), as amended by Amendment 3 of this document, is
further amended by striking the period at the end of the line
referenced to Flunitrazepam and inserting a semicolon; and by adding at
the end the following:
`` At least 80 KG but less than 100 KG of Converted Drug
Weight.''.
Section 2D1.1(c)(10), as amended by Amendment 3 of this document,
is further amended by striking the period at the end of the line
referenced to Flunitrazepam and inserting a semicolon; and by adding at
the end the following:
`` At least 60 KG but less than 80 KG of Converted Drug
Weight.''.
Section 2D1.1(c)(11), as amended by Amendment 3 of this document,
is further amended by striking the period at the end of the line
referenced to Flunitrazepam and inserting a semicolon; and by adding at
the end the following:
`` At least 40 KG but less than 60 KG of Converted Drug
Weight.''.
Section 2D1.1(c)(12), as amended by Amendment 3 of this document,
is
[[Page 20153]]
further amended by striking the period at the end of the line
referenced to Flunitrazepam and inserting a semicolon; and by adding at
the end the following:
`` At least 20 KG but less than 40 KG of Converted Drug
Weight.''.
Section 2D1.1(c)(13), as amended by Amendment 3 of this document,
is further amended by striking the period at the end of the line
referenced to Flunitrazepam and inserting a semicolon; and by adding at
the end the following:
`` At least 10 KG but less than 20 KG of Converted Drug
Weight.''.
Section 2D1.1(c)(14), as amended by Amendment 3 of this document,
is further amended by striking the period at the end of the line
referenced to Schedule IV substances (except Flunitrazepam) and
inserting a semicolon; and by adding at the end the following:
`` At least 5 KG but less than 10 KG of Converted Drug
Weight.''.
Section 2D1.1(c)(15) is amended by striking the period at the end
of the line referenced to Schedule IV substances (except Flunitrazepam)
and inserting a semicolon, and by adding at the end the following:
`` At least 2.5 KG but less than 5 KG of Converted Drug
Weight.''.
Section 2D1.1(c)(16) is amended by striking the period at the end
of the line referenced to Schedule V substances and inserting a
semicolon; and by adding at the end the following:
`` At least 1 KG but less than 2.5 KG of Converted Drug
Weight.''.
Section 2D1.1(c)(17) is amended by striking the period at the end
of the line referenced to Schedule V substances and inserting a
semicolon; and by adding at the end the following:
`` Less than 1 KG of Converted Drug Weight.''.
The annotation to Sec. 2D1.1(c) captioned ``Notes to Drug Quantity
Table'', as amended by Amendment 3 of this document, is further amended
by inserting at the end the following new Note (K):
``(K) The term `Converted Drug Weight,' for purposes of this
guideline, refers to a nominal reference designation that is used as a
conversion factor in the Drug Conversion Tables set forth in the
Commentary below, to determine the offense level for controlled
substances that are not specifically referenced in the Drug Quantity
Table or when combining differing controlled substances.''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'', as
amended by Amendment 3 of this document, is further amended--
in Note 6 by striking ``marihuana equivalency'' and inserting
``converted drug weight''; and by inserting after ``the most closely
related controlled substance referenced in this guideline.'' the
following: ``See Application Note 8.'';
in the heading of Note 8 by striking ``Drug Equivalency Tables'' and
inserting ``Drug Conversion Tables'';
in Note 8(A) by striking ``Drug Equivalency Tables'' both places such
term appears and inserting ``Drug Conversion Tables''; by striking ``to
convert the quantity of the controlled substance involved in the
offense to its equivalent quantity of marihuana'' and inserting ``to
find the converted drug weight of the controlled substance involved in
the offense''; by striking ``Find the equivalent quantity of
marihuana'' and inserting ``Find the corresponding converted drug
weight''; by striking ``Use the offense level that corresponds to the
equivalent quantity of marihuana'' and inserting ``Use the offense
level that corresponds to the converted drug weight determined above'';
by striking ``an equivalent quantity of 5 kilograms of marihuana'' and
inserting ``5 kilograms of converted drug weight''; and by striking
``the equivalent quantity of marihuana would be 500 kilograms'' and
inserting ``the converted drug weight would be 500 kilograms'';
in Note 8(B) by striking ``Drug Equivalency Tables'' each place such
term appears and inserting ``Drug Conversion Tables''; by striking
``convert each of the drugs to its marihuana equivalent'' and inserting
``convert each of the drugs to its converted drug weight''; by striking
``For certain types of controlled substances, the marihuana
equivalencies'' and inserting ``For certain types of controlled
substances, the converted drug weights assigned''; by striking ``e.g.,
the combined equivalent weight of all Schedule V controlled substances
shall not exceed 2.49 kilograms of marihuana'' and inserting ``e.g.,
the combined converted weight of all Schedule V controlled substances
shall not exceed 2.49 kilograms of converted drug weight''; by striking
``determine the marihuana equivalency for each schedule separately''
and inserting ``determine the converted drug weight for each schedule
separately''; and by striking ``Then add the marihuana equivalencies to
determine the combined marihuana equivalency'' and inserting ``Then add
the converted drug weights to determine the combined converted drug
weight'';
in Note 8(C)(i) by striking ``of marihuana'' each place such term
appears and inserting ``of converted drug weight''; and by striking
``The total is therefore equivalent to 95 kilograms'' and inserting
``The total therefore converts to 95 kilograms'';
in Note 8(C)(ii) by striking the following:
``The defendant is convicted of selling 500 grams of marihuana
(Level 6) and 10,000 units of diazepam (Level 6). The diazepam, a
Schedule IV drug, is equivalent to 625 grams of marihuana. The total,
1.125 kilograms of marihuana, has an offense level of 8 in the Drug
Quantity Table.'',
and inserting the following:
``The defendant is convicted of selling 500 grams of marihuana
(Level 6) and 10,000 units of diazepam (Level 6). The marihuana
converts to 500 grams of converted drug weight. The diazepam, a
Schedule IV drug, converts to 625 grams of converted drug weight. The
total, 1.125 kilograms of converted drug weight, has an offense level
of 8 in the Drug Quantity Table.'';
in Note 8(C)(iii) by striking ``is equivalent'' both places such term
appears and inserting ``converts''; by striking ``of marihuana'' each
place such term appears and inserting ``of converted drug weight''; and
by striking ``The total is therefore equivalent'' and inserting ``The
total therefore converts'';
in Note 8(C)(iv) by striking ``marihuana equivalency'' each place such
term appears and inserting ``converted drug weight''; by striking ``76
kilograms of marihuana'' and inserting ``76 kilograms''; by striking
``79.99 kilograms of marihuana'' both places such term appears and
inserting ``79.99 kilograms of converted drug weight''; by striking
``equivalent weight'' each place such term appears and inserting
``converted weight''; by striking ``9.99 kilograms of marihuana'' and
inserting ``9.99 kilograms''; and by striking ``2.49 kilograms of
marihuana'' and inserting ``2.49 kilograms'';
in Note 8(D)--
in the heading, by striking ``Drug Equivalency Tables'' and inserting
``Drug Conversion Tables'';
under the heading relating to Schedule I or II Opiates, by striking the
heading as follows:
``Schedule I or II Opiates*'',
and inserting the following new heading:
``Schedule I or II Opiates* Converted Drug Weight'';
and by striking ``of marihuana'' each place such term appears;
[[Page 20154]]
under the heading relating Cocaine and Other Schedule I and II
Stimulants (and their immediate precursors), by striking the heading as
follows:
``Cocaine and Other Schedule I and II Stimulants (and their immediate
precursors)*'',
and inserting the following new heading:
``Cocaine and Other Schedule I and II Stimulants (and their immediate
precursors)* Converted Drug Weight'';
and by striking ``of marihuana'' each place such term appears;
under the heading relating to Synthetic Cathinones (except Schedule
III, IV, and V Substances), by striking the heading as follows:
``Synthetic Cathinones (except Schedule III, IV, and V Substances)*'',
and inserting the following new heading:
``Synthetic Cathinones (except Schedule III, IV, and V Substances)*
Converted Drug Weight'';
and by striking ``of marihuana'';
under the heading relating to LSD, PCP, and Other Schedule I and II
Hallucinogens (and their immediate precursors), by striking the heading
as follows:
``LSD, PCP, and Other Schedule I and II Hallucinogens (and their
immediate precursors)*'',
and inserting the following new heading:
``LSD, PCP, and Other Schedule I and II Hallucinogens (and their
immediate precursors)* Converted Drug Weight'';
and by striking ``of marihuana'' each place such term appears;
under the heading relating to Schedule I Marihuana, by striking the
heading as follows:
``Schedule I Marihuana'',
and inserting the following new heading:
``Schedule I Marihuana Converted Drug Weight'';
and by striking ``of marihuana'' each place such term appears;
under the heading relating to Synthetic Cannabinoids (except Schedule
III, IV, and V Substances), by striking the heading as follows:
``Synthetic Cannabinoids (except Schedule III, IV, and V
Substances)*'',
and inserting the following new heading:
``Synthetic Cannabinoids (except Schedule III, IV, and V Substances)*
Converted Drug Weight'';
and by striking ``of marihuana'';
under the heading relating to Flunitrazepam, by striking the heading as
follows:
``Flunitrazepam**'',
and inserting the following new heading:
``Flunitrazepam** Converted Drug Weight'';
and by striking ``of marihuana'';
under the heading relating to Schedule I or II Depressants (except
gamma-hydroxybutyric acid), by striking the heading as follows:
``Schedule I or II Depressants (except gamma-hydroxybutyric acid)'',
and inserting the following new heading:
``Schedule I or II Depressants (except gamma-hydroxybutyric acid)
Converted Drug Weight'';
and by striking ``of marihuana'';
under the heading relating to Gamma-hydroxybutyric Acid, by striking
the heading as follows:
``Gamma-hydroxybutyric Acid'',
and inserting the following new heading:
``Gamma-hydroxybutyric Acid Converted Drug Weight'';
and by striking ``of marihuana'';
under the heading relating to Schedule III Substances (except
ketamine), by striking the heading as follows:
``Schedule III Substances (except ketamine)***'',
and inserting the following new heading:
``Schedule III Substances (except ketamine)*** Converted Drug Weight'';
by striking ``1 gm of marihuana'' and inserting ``1 gm''; by striking
``equivalent weight'' and inserting ``converted weight''; and by
striking ``79.99 kilograms of marihuana'' and inserting ``79.99
kilograms of converted drug weight'';
under the heading relating to Ketamine, by striking the heading as
follows:
``Ketamine'',
and inserting the following new heading:
``Ketamine Converted Drug Weight'';
and by striking ``of marihuana'';
under the heading relating to Schedule IV Substances (except
flunitrazepam), by striking the heading as follows:
``Schedule IV Substances (except flunitrazepam)*****'',
and inserting the following new heading:
``Schedule IV Substances (except flunitrazepam)**** Converted Drug
Weight'';
by striking ``0.0625 gm of marihuana'' and inserting ``0.0625 gm''; and
by striking ``*****Provided, that the combined equivalent weight of all
Schedule IV (except flunitrazepam) and V substances shall not exceed
9.99 kilograms of marihuana.'' and inserting ``****Provided, that the
combined converted weight of all Schedule IV (except flunitrazepam) and
V substances shall not exceed 9.99 kilograms of converted drug
weight.'';
under the heading relating to Schedule V Substances, by striking the
heading as follows:
``Schedule V Substances******'',
and inserting the following new heading:
``Schedule V Substances***** Converted Drug Weight'';
by striking ``0.00625 gm of marihuana'' and inserting ``0.00625 gm'';
and by striking ``******Provided, that the combined equivalent weight
of Schedule V substances shall not exceed 2.49 kilograms of
marihuana.'' and inserting ``*****Provided, that the combined converted
weight of Schedule V substances shall not exceed 2.49 kilograms of
converted drug weight.'';
under the heading relating to List I Chemicals (relating to the
manufacture of amphetamine or methamphetamine), by striking the heading
as follows:
``List I Chemicals (relating to the manufacture of amphetamine or
methamphetamine)*******'',
and inserting the following new heading:
``List I Chemicals (relating to the manufacture of amphetamine or
methamphetamine)****** Converted Drug Weight'';
by striking ``of marihuana'' each place such term appears; and by
striking ``*******Provided, that in a case involving'' and inserting
``******Provided, that in a case involving'';
under the heading relating to Date Rape Drugs (except flunitrazepam,
GHB, or ketamine), by striking the heading as follows:
``Date Rape Drugs (except flunitrazepam, GHB, or ketamine)'',
and inserting the following new heading:
``Date Rape Drugs
(except flunitrazepam, GHB, or ketamine) Converted Drug Weight'';
and by striking ``marihuana'' both places such term appears;
and in the text before the heading relating to Measurement Conversion
Table, by striking ``To facilitate
[[Page 20155]]
conversions to drug equivalencies'' and inserting ``To facilitate
conversions to converted drug weight'';
in Note 27(D) by striking ``marihuana equivalencies'' both place such
term appears and inserting ``converted drug weights''; by striking
``Drug Equivalency Tables'' and inserting ``Drug Conversion Tables'';
and by striking ``marihuana equivalency'' and inserting ``converted
drug weight'';
and in Note 27(E)(ii) by striking ``marihuana equivalency'' and
inserting ``converted drug weight''.
The Commentary to Sec. 2D1.1 captioned ``Background'', as amended
by Amendment 3 of this document, is further amended by adding at the
end the following new paragraph:
``The Drug Conversion Tables set forth in Application Note 8 were
previously called the Drug Equivalency Tables. In the original 1987
Guidelines Manual, the Drug Equivalency Tables provided four conversion
factors (or `equivalents') for determining the base offense level in
cases involving either a controlled substance not referenced in the
Drug Quantity Table or multiple controlled substances: heroin, cocaine,
PCP, and marihuana. In 1991, the Commission amended the Drug
Equivalency Tables to provide for one substance, marihuana, as the
single conversion factor in Sec. 2D1.1. See USSG App. C, Amendment 396
(effective November 1, 1991). In 2018, the Commission amended Sec.
2D1.1 to replace marihuana as the conversion factor with the new term
`converted drug weight' and to change the title of the Drug Equivalency
Tables to the `Drug Conversion Tables.' ''.
The Commentary to Sec. 2D1.11 captioned ``Application Notes'' is
amended in Note 9 by striking ``Drug Equivalency Table'' and inserting
``Drug Conversion Table''.
The Concluding Commentary to Part D of Chapter Three is amended in
Example 2 by striking ``marihuana equivalents'' and inserting
``converted drug weight''; by striking ``Drug Equivalency Tables'' and
inserting ``Drug Conversion Tables''; and by striking ``of marihuana''
each place such term appears and inserting ``of converted drug
weight''.
Reason for Amendment: This amendment makes technical changes to
Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or
Trafficking (Including Possession with Intent to Commit These
Offenses); Attempt or Conspiracy). It replaces the term ``marihuana
equivalency,'' which is used in the Drug Equivalency Tables for
determining penalties for controlled substances that are not
specifically referenced in the Drug Quantity Table or when combining
differing controlled substances, with the term ``converted drug
weight.''
The Commission received comment expressing concern that the term
``marihuana equivalency'' is misleading and results in confusion for
individuals not fully versed in the guidelines. Some commenters
suggested that the Commission should replace ``marihuana equivalency''
with another term.
Specifically, the amendment adds the new term ``converted drug
weight'' to all provisions of the Drug Quantity Table at Sec. 2D1.1(c)
and changes the title of the ``Drug Equivalency Tables'' to ``Drug
Conversion Tables.'' In addition, the amendment makes technical changes
throughout the Guidelines Manual to account for the new term.
This amendment is not intended as a substantive change in policy
for Sec. 2D1.1.
5. Amendment: Section 2L1.2(b)(2) is amended by striking ``If,
before the defendant was ordered deported or ordered removed from the
United States for the first time, the defendant sustained--'' and
inserting ``If, before 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--''.
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--''.
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 ``includes any term of imprisonment given upon
revocation of probation, parole, or supervised release'' and inserting
``includes any term of imprisonment given upon revocation of probation,
parole, or supervised release, regardless of when the revocation
occurred'';
in Note 4 by striking ``subsection (b)(3),'' and inserting ``subsection
(b)(2) or (b)(3), as appropriate,'';
and by redesignating Notes 5 through 7 as Notes 6 through 8,
respectively; and by inserting the following new Note 5:
``5. Cases in Which the Criminal Conduct Underlying a Prior
Conviction Occurred Both Before and After the Defendant Was First
Ordered Deported or Ordered Removed.--There may be cases in which the
criminal conduct underlying a prior conviction occurred both before and
after the defendant was ordered deported or ordered removed from the
United States for the first time. For purposes of subsections (b)(2)
and (b)(3), count such a conviction only under subsection (b)(2).''
Reason for Amendment: This amendment responds to two application
issues that arose after Sec. 2L1.2 (Unlawfully Entering or Remaining
in the United States) was extensively amended in 2016. See USSG, App.
C, Amendment 802 (effective Nov. 1, 2016).
The specific offense characteristic at Sec. 2L1.2(b)(2) applies a
sliding scale of enhancements, based on sentence length, if the
``defendant sustained'' a ``conviction'' before being ordered removed
for the first time. Correspondingly, Sec. 2L1.2(b)(3) applies a
parallel scale of enhancements if the defendant ``engaged in criminal
conduct resulting in'' a conviction ``at any time after'' the first
order of removal. In most situations, any prior felony conviction that
received criminal history points will qualify under either subsection
(b)(2) or (b)(3), with the extent of the increase depending on the
length of the sentence imposed. In some scenarios, a felony will not
qualify for an upward adjustment under either subsection (b)(2) or
(b)(3) even though it received criminal history points. Those scenarios
occur when a defendant committed a crime before being ordered removed
for the first time but was not convicted (or sentenced) for that crime
until after that first order of removal.
The amendment addresses this issue by establishing that the
application of the Sec. 2L1.2(b)(2) enhancement depends on the timing
of the underlying ``criminal conduct,'' and not on the timing of the
resulting conviction. It does so by amending the first paragraph of
subsection (b)(2) to state that the enhancement applies if pre-first
removal conduct resulted in a conviction ``at any time,'' and makes a
conforming change to the first paragraph of subsection (b)(3). In order
to address how to treat an offense involving conduct that occurred both
before and after a defendant's first order of removal, the amendment
adds a new Application Note 5 explaining that an offense involving such
conduct should be counted only under subsection (b)(2). The Commission
determined that a defendant with a prior non-illegal reentry felony
conviction that received criminal history points should receive
[[Page 20156]]
an enhancement for that conviction under either subsection (b)(2) or
(b)(3). A defendant should not avoid an enhancement for an otherwise
qualifying conviction because the conviction occurred after a
defendant's first order of removal or deportation but was premised on
conduct that occurred before that order. Because a conviction could be
premised on conduct that occurred both before and after the first order
of removal or deportation, the Commission adopted Application Note 5 to
explain that such convictions are only counted once, under subsection
(b)(2).
The specific offense characteristics at Sec. 2L1.2(b)(2) and
(b)(3) increase a defendant's offense level based on the length of the
``sentence imposed'' for a prior felony conviction. An application note
defines ``sentence imposed'' to mean ``sentence of imprisonment'' as
that term is used in the criminal history guideline, Sec. 4A1.2. See
USSG Sec. 2L1.2, comment. (n.2.). Consistent with that definition, the
application note also directs that ``[t]he length of the sentence
imposed includes any term of imprisonment given upon revocation of
probation, parole, or supervised release.'' Id.
Another part of the commentary to Sec. 2L1.2 directs that only
convictions receiving criminal history points under ``Sec. 4A1.1(a),
(b), or (c)'' (which assign points based on the length of the prior
sentence imposed) are to be counted under Sec. 2L1.2(b). See USSG
Sec. 2L1.2, comment. (n.3). In determining the length of a sentence
for purposes of Chapter Four (and thus the number of criminal history
points to be applied), the length of any term imposed on revocation of
probation, parole, supervised release, or other similar status is added
to the original term of imprisonment and the total term is used to
calculate criminal history points under Sec. 4A1.1(a), (b), or (c).
See USSG Sec. 4A1.2(k)(1).
A Fifth Circuit opinion interpreted Sec. 2L1.2(b)(2) to bar
consideration of a revocation that did not occur until after a
defendant's first order of removal, even if the defendant was convicted
prior to the first order of the removal. See United States v. Franco-
Galvan, 864 F.3d 338 (5th Cir. 2017). The court found that Application
Note 2, despite its instruction that ``the length of the sentence
imposed includes any term of imprisonment given upon revocation of
probation, parole, or supervised release,'' was insufficiently clear to
resolve the ``temporal'' question of when a revocation must occur,
given that the Commission had resolved a prior circuit conflict in 2012
by directing that revoked time should not be counted in the situation.
See USSC, App. C, Amendment 764 (effective Nov. 1, 2012). A subsequent
decision of the Ninth Circuit reached the same result. See United
States v. Martinez, 870 F.3d 1163 (9th Cir. 2017). Although both cases
involved an enhancement under subsection (b)(2), the same logic would
seem to apply to enhancements under subsection (b)(3) when the
conviction and revocation were separated by an intervening order of
removal or deportation.
The amendment resolves this issue by adding the clarifying phrase
``regardless of when the revocation occurred'' to the definition of
``sentence imposed'' in Application Note 2. The Commission determined
that, consistent with the purposes of the 2016 amendment to Sec.
2L1.2, the data underlying it, and the statement in Application Note 2,
the length of a sentence imposed for purposes of Sec. 2L1.2(b)(2) and
(b)(3) should include any additional term of imprisonment imposed upon
revocation of probation, suspended sentence, or supervised release,
regardless of whether the revocation occurred before or after the
defendant's first (or any subsequent) order of removal. As the reason
for amendment for Amendment 802 explained, ``[t]he Commission
determined that a sentence-imposed approach is consistent with the
Chapter Four criminal history rules, easily applied, and appropriately
calibrated to account for the seriousness of prior offenses.'' USSC,
App. C, Amendment 802 (effective Nov. 1, 2016). Excluding sentence
length added by post-removal revocations would be inconsistent with the
purpose of Amendment 802 and its underlying data analysis. Id.
6. Amendment: The Commentary to Sec. 3E1.1 captioned ``Application
Notes'' is amended in Note 1(A) by striking ``However, a defendant who
falsely denies, or frivolously contests, relevant conduct that the
court determines to be true has acted in a manner inconsistent with
acceptance of responsibility'' and inserting ``A defendant who falsely
denies, or frivolously contests, relevant conduct that the court
determines to be true has acted in a manner inconsistent with
acceptance of responsibility, but the fact that a defendant's challenge
is unsuccessful does not necessarily establish that it was either a
false denial or frivolous''.
Reason for Amendment: This amendment responds to concerns that some
courts have interpreted the commentary to Sec. 3E1.1 (Acceptance of
Responsibility) to automatically preclude application of the 2-level
reduction for acceptance of responsibility when the defendant makes an
unsuccessful good faith, non-frivolous challenge to relevant conduct.
Application Note 1 provides a non-exhaustive list of appropriate
considerations in determining whether a defendant has clearly
demonstrated acceptance of responsibility. Among those considerations
is whether the defendant truthfully admitted the conduct comprising the
offense(s) of conviction and truthfully admitted or did not falsely
deny any additional relevant conduct for which the defendant is
accountable under Sec. 1B1.3 (Relevant Conduct). See USSG Sec. 3E1.1,
comment. (n.1(A)). The application note further provides that ``a
defendant who falsely denies, or frivolously contests, relevant conduct
that the court determines to be true has acted in a manner inconsistent
with acceptance of responsibility.'' The amendment clarifies that an
unsuccessful challenge to relevant conduct does not necessarily
establish that the challenge was either a false denial or frivolous.
Specifically, the amendment adds ``but the fact that a defendant's
challenge is unsuccessful does not necessarily establish that it was
either a false denial or frivolous'' to the end of Application Note
1(A).
7. Amendment: The Commentary to Sec. 5C1.1 captioned ``Application
Notes'' is amended by redesignating Notes 4 through 9 as Notes 5
through 10, respectively; and by inserting the following new Note 4:
``4. If the defendant is a nonviolent first offender and the
applicable guideline range is in Zone A or B of the Sentencing Table,
the court should consider imposing a sentence other than a sentence of
imprisonment, in accordance with subsection (b) or (c)(3). See 28
U.S.C. 994(j). For purposes of this application note, a `nonviolent
first offender' is a defendant who has no prior convictions or other
comparable judicial dispositions of any kind and who did not use
violence or credible threats of violence or possess a firearm or other
dangerous weapon in connection with the offense of conviction. The
phrase `comparable judicial dispositions of any kind' includes
diversionary or deferred dispositions resulting from a finding or
admission of guilt or a plea of nolo contendere and juvenile
adjudications.''.
The Commentary to Sec. 5F1.2 captioned ``Application Notes'' is
amended in Note 1 by striking ``Electronic monitoring is an appropriate
means of surveillance and ordinarily should be used in connection with
home detention'' and inserting ``Electronic monitoring is an
appropriate means of
[[Page 20157]]
surveillance for home detention''; and by striking ``alternative means
of surveillance may be used so long as they are as effective as
electronic monitoring'' and inserting ``alternative means of
surveillance may be used if appropriate''.
The Commentary to Sec. 5F1.2 captioned ``Background'' is amended
by striking ``The Commission has concluded that the surveillance
necessary for effective use of home detention ordinarily requires
electronic monitoring'' and inserting ``The Commission has concluded
that electronic monitoring is an appropriate means of surveillance for
home detention''; and by striking ``the court should be confident that
an alternative form of surveillance will be equally effective'' and
inserting ``the court should be confident that an alternative form of
surveillance is appropriate considering the facts and circumstances of
the defendant's case''.
Section 5H1.3 is amended by striking ``See Sec. 5C1.1, Application
Note 6'' and inserting ``See Sec. 5C1.1, Application Note 7''.
Section 5H1.4 is amended by striking ``See Sec. 5C1.1, Application
Note 6'' and inserting ``See Sec. 5C1.1, Application Note 7''.
Reason for Amendment: The amendment adds a new application note to
the Commentary at Sec. 5C1.1 (Imposition of a Term of Imprisonment),
which states that if a defendant is a ``nonviolent first offender and
the applicable guideline range is in Zone A or B of the Sentencing
Table, the court should consider imposing a sentence other than a
sentence of imprisonment.'' This new application note is consistent
with the statutory language in 28 U.S.C. 994(j) regarding the ``general
appropriateness of imposing a sentence other than imprisonment'' for
``a first offender who has not been convicted of a crime of violence or
an otherwise serious offense'' and cites the statutory provision in
support. It also is consistent with a recent Commission recidivism
study, which demonstrated that offenders with zero criminal history
points have a lower recidivism rate than offenders with one criminal
history point, and that offenders with zero criminal history points and
no prior contact with the criminal justice system have an even lower
recidivism rate. See Tracey Kyckelhahn & Trishia Cooper, U.S.
Sentencing Comm'n, The Past Predicts the Future: Criminal History and
Recidivism of Federal Offenders at 6-9 (2017).
Where permitted by statute, the Guidelines Manual provides for non-
incarceration sentences for offenders in Zones A and B of the
Sentencing Table. Zone A (in which all sentencing ranges are zero to
six months regardless of criminal history category) permits the full
spectrum of sentencing options: (1) A fine only; (2) a term of
probation only; (3) probation with conditions of confinement (home
detention, community confinement, or intermittent confinement); (4) a
``split sentence'' (a term of imprisonment followed by a term of
supervised release with condition of confinement that substitutes for a
portion of the guideline term); or (5) a term of imprisonment only.
Zone B (which includes sentencing ranges that have a low-end of one
month and a high-end of 15 months, and vary by criminal history
category) also authorizes non-prison sentences. However, Zone B
sentencing options are more restrictive, authorizing (1) probation with
conditions of confinement; (2) a ``split sentence''; or (3) a term of
imprisonment only. Consistent with the statutory mandate in section
994(j), the application note is intended to serve as a reminder to
courts to consider imposing non-incarceration sentences for a defined
class of ``nonviolent first offenders'' whose applicable guideline
ranges are in Zones A or B of the Sentencing Table.
For purposes of the new application note, the amendment defines a
``nonviolent first offender'' as a defendant who (1) has no prior
convictions or other comparable judicial dispositions of any kind; and
(2) did not use violence or credible threats of violence or possess a
firearm or other dangerous weapon in connection with the offense. It
explains that ``comparable judicial dispositions of any kind'' includes
``diversionary or deferred dispositions resulting from a finding or
admission of guilt or a plea of nolo contendere and juvenile
adjudications.''
The amendment adopts language from the statutory and guidelines
``safety-valve'' provisions to exclude offenders who ``use[d] violence
or credible threats of violence or possess[ed] a firearm or other
dangerous weapon in connection with the offense.'' See 18 U.S.C.
3553(f)(2); USSG Sec. 5C1.2(a)(2). This real-offense definition of
``violent'' offense avoids the complicated application of the
``categorical approach'' to determine whether an offense qualifies as
``violent.'' See United States v. Starks, 861 F.3d 306, 324 (1st Cir.
2017) (describing the ``immensely complicated analysis required by the
categorical approach''); see also USSG Sec. 5C1.2, comment. (n.3)
(noting that the determination of whether ``the offense'' was violent
or involved a firearm requires a court to consider not only the offense
of conviction but also ``all relevant conduct''). It also ensures that
only nonviolent offenders are covered by the new application note.
The amendment also deletes language from the commentary to Sec.
5F1.2 (Home Detention) that generally encouraged courts to use
electronic monitoring (also called location monitoring) when home
detention is made a condition of supervision, and instead instructs
that electronic monitoring or any alternative means of surveillance may
each be used, as ``appropriate.'' The goal of this change is to
increase the use of probation with home detention as an alternative to
incarceration. The Commission received testimony indicating that
location monitoring is resource-intensive and otherwise demanding on
probation officers. Additionally, it heard testimony that imposing
location monitoring by default is inconsistent with the evidence-based
``risk-needs-responsivity'' (RNR) model of supervision and may be
counterproductive for certain lower-risk offenders. For many low-risk
offenders, less intensive surveillance methods (e.g., telephonic
contact, video conference, unannounced home visits by probation
officers) are sufficient to enforce home detention. The revised
language would allow probation officers and courts to exercise
discretion to use surveillance methods that they deem appropriate in
light of evidence-based practices.
8. Amendment: The Commentary to Sec. 2A3.5 captioned ``Statutory
Provision'' is amended by striking ``Sec. 2250(a)'' and inserting
``Sec. 2250(a), (b)''.
The Commentary to Sec. 2A3.5 captioned ``Application Notes'' is
amended by redesignating Note 2 as Note 3; and by inserting the
following new Note 2:
``2. Application of Subsection (b)(1).--For purposes of subsection
(b)(1), a defendant shall be deemed to be in a `failure to register
status' during the period in which the defendant engaged in conduct
described in 18 U.S.C. 2250(a) or (b).''.
Section 2A3.6(a) is amended by striking ``Sec. 2250(c)'' and
inserting ``Sec. 2250(d)''.
The Commentary to Sec. 2A3.6 captioned ``Statutory Provisions'' is
amended by striking ``2250(c)'' and inserting ``2250(d)''.
The Commentary to Sec. 2A3.6 captioned ``Application Notes'' is
amended--
in Note 1 by striking ``Section 2250(c)'' and inserting ``Section
2250(d)''; and by inserting after ``18 U.S.C. 2250(a)'' the following:
``or (b)'';
in Note 3 by striking ``Sec. 2250(c)'' and inserting ``Sec.
2250(d)'';
[[Page 20158]]
and in Note 4 by striking ``Sec. 2250(c)'' and inserting ``Sec.
2250(d)''.
Section 2B5.3(b)(5) is amended by striking ``counterfeit drug'' and
inserting ``drug that uses a counterfeit mark on or in connection with
the drug''.
The Commentary to Sec. 2B5.3 captioned ``Application Notes'' is
amended in Note 1 by striking the third undesignated paragraph as
follows:
`` `Counterfeit drug' has the meaning given that term in 18 U.S.C.
2320(f)(6).'';
and by inserting after the paragraph that begins `` `Counterfeit
military good or service' has the meaning'' the following new
paragraph:
`` `Drug' and `counterfeit mark' have the meaning given those terms
in 18 U.S.C. 2320(f).''.
The Commentary to Sec. 2G1.3 captioned ``Application Notes'' is
amended in Note 4 by striking ``(b)(3)'' each place such term appears
and inserting ``(b)(3)(A)''.
Section 5D1.3(a)(6)(A) is amended by striking ``18 U.S.C. 2248,
2259, 2264, 2327, 3663, 3663A, and 3664'' and inserting ``18 U.S.C.
3663 and 3663A, or any other statute authorizing a sentence of
restitution''.
Appendix A (Statutory Index) is amended--
in the line referenced to 15 U.S.C. 2615 by striking ``Sec. 2615'' and
inserting ``Sec. 2615(b)(1)'';
by inserting before the line referenced to 15 U.S.C. 6821 the following
new line reference:
``15 U.S.C. 2615(b)(2) 2Q1.1'';
in the line referenced to 18 U.S.C. 2250(a) by striking ``Sec.
2250(a)'' and inserting ``Sec. 2250(a), (b)'';
and in the line referenced to 18 U.S.C. 2250(c) by striking ``Sec.
2250(c)'' and inserting ``Sec. 2250(d)''.
Reason for Amendment: This multi-part amendment responds to
recently enacted legislation and miscellaneous guideline application
issues.
First, the amendment responds to section 6 of the International
Megan's Law to Prevent Child Exploitation and Other Sexual Crimes
Through Advanced Notification of Traveling Sex Offenders, Public Law
114-119 (Feb. 8, 2016), which added a new registration requirement for
certain sex offenders required to register under the Sex Offender
Registration and Notification Act (SORNA) at 34 U.S.C. 20914. SORNA
requires sex offenders to register in the sex offender registry, and
keep their registration current, by providing certain identifying
information including names, addresses, and Social Security Numbers.
The new requirement at 34 U.S.C. 20914(7) directs sex offenders to
provide information relating to intended travel outside the United
States, including any anticipated dates and places of departure,
arrival or return, air carrier and flight numbers, and destination
country. The Act also established a new offense at 18 U.S.C. 2250(b).
For those required to register under SORNA, knowingly failing to
provide this travel-related information and engaging or attempting to
engage in the intended travel outside of the United States, carries a
statutory maximum of 10 years of imprisonment. Section 2250 offenses
are referenced in Appendix A (Statutory Index) to Sec. 2A3.5 (Failure
to Register as a Sex Offender). The amendment amends Appendix A so the
new offense at 18 U.S.C. 2250(b) is referenced to Sec. 2A3.5. The
amendment also adds a new Application Note 2 to the Commentary to Sec.
2A3.5 providing that for purposes of Sec. 2A3.5(b)(1), a defendant
shall be considered in a ``failure to register status'' during the time
the defendant engaged in conduct described in either section 2250(a)
(failing to register or update registration) or section 2250(b)
(failing to provide required travel-related information). This
application note reflects the Commission's determination that failing
to provide information about intended foreign travel meets the
definition of failing to update registration information in the sex
offender registry. In addition, the amendment makes clerical changes to
Sec. 2A3.6 (Aggravated Offenses Relating to Registration as a Sex
Offender) to reflect the adoption of section 2250(b) and the associated
redesignation of section 2250(c) as section 2250(d).
Second, the amendment responds to section 3 of the Transnational
Drug Trafficking Act of 2016, Public Law 114-154 (May 16, 2016), which
made changes relating to the trafficking of counterfeit drugs by
amending the language in the penalty provision at 18 U.S.C. 2320. The
Act amended section 2320(b)(3) to replace the term ``counterfeit drug''
with the phrase ``a drug that uses a counterfeit mark on or in
connection with the drug.'' The Act also revised section 2320(f) to
define the term ``drug'' by reference to the term as defined in the
Federal Food, Drug, and Cosmetic Act found at 21 U.S.C. 321. Section
2320 offenses are referenced in Appendix A (Statutory Index) to Sec.
2B5.3 (Criminal Infringement of Copyright or Trademark). The amendment
replaces the term ``counterfeit drug'' at Sec. 2B5.3(b)(5) with the
new phrase in the revised section 2320(b)(3), to remain consistent with
the language of the statute. Similarly, the amendment amends the
commentary to Sec. 2B5.3 to remove a definition for the obsolete term
``counterfeit drug'' and replace it with definitions of the terms
``drug'' and ``counterfeit mark'' as found in the revised statute.
Third, the amendment responds to section 12 of the Frank R.
Lautenberg Chemical Safety for the 21st Century Act of 2016, Public Law
114-182 (June 22, 2016), which amended section 16 of the Toxic
Substances Control Act (15 U.S.C. 2615) by adding a new provision at
section 2615(b)(2). The new provision prohibits any person from
knowingly and willfully violating specific provisions of the Toxic
Substances Control Act, knowing at the time of the violation that the
violation puts a person in imminent danger of death or bodily injury,
with a maximum penalty of 15 years of imprisonment. The Toxic
Substances Control Act is referenced in Appendix A (Statutory Index) to
Sec. 2Q1.2 (Mishandling of Hazardous or Toxic Substances of
Pesticides; Recordkeeping, Tampering, and Falsification; Unlawfully
Transporting Hazardous Materials in Commerce). The amendment continues
to reference the preexisting offense, now codified at section
2615(b)(1), to Sec. 2Q1.2, but references the new offense, codified at
section 2615(b)(2), to Sec. 2Q1.1 (Knowing Endangerment Resulting From
Mishandling Hazardous or Toxic Substances, Pesticides or Other
Pollutants). The Commission determined Sec. 2Q1.1 is the most
analogous guideline because it covers similar ``knowing endangerment''
provisions and has a similar mens rea element found in similar statutes
referenced in Appendix A to Sec. 2Q1.1.
Fourth, the amendment responds to section 2 of the Justice for All
Reauthorization Act of 2016, Public Law 114-324 (Dec. 16, 2016), which
amended 18 U.S.C. 3583(d) (relating to conditions of supervised
release) to require a court, when imposing a sentence of supervised
release, to include as a condition that the defendant make restitution
in accordance with sections 3663 and 3663A of Title 18 of the United
States Code, or any other statute authorizing a sentence of
restitution. The amendment amends subsection (a)(6)(A) of Sec. 5D1.3
(Conditions of Supervised Release) to include a mandatory condition of
supervised release in conformance with the new statutory requirement.
The amendment also parallels the Judicial Conference of the United
States' recent revision of the Judgment in a Criminal Case form to
include a new mandatory condition of supervised release.
[[Page 20159]]
Fifth, the amendment clarifies an application issue that has arisen
with respect to Sec. 2G1.3 (Promoting a Commercial Sex Act or
Prohibited Sexual Conduct with a Minor; Transportation of Minors to
Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to
Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor;
Sex Trafficking of Children; Use of Interstate Facilities to Transport
Information about a Minor), which applies to several offenses involving
the transportation of a minor for illegal sexual activity. A two-level
enhancement at Sec. 2G1.3(b)(3) applies if the offense involved the
use of a computer to either (A) persuade, entice or coerce a minor, or
to facilitate the travel of a minor, to engage in prohibited sexual
conduct, or (B) to entice, offer, or solicit a person to engage in
prohibited sexual conduct with a minor. While Application Note 4 sets
forth guidance on this enhancement, it fails to distinguish between the
two prongs of subsection (b)(3). As a result, an application issue has
arisen regarding whether the note prohibits application of the
enhancement where a computer was used to solicit a third party to
engage in prohibited sexual conduct with a minor, as set out in
subsection (b)(3)(B). Courts have concluded that the application note
is inconsistent with the language of Sec. 2G1.3(b)(3), and that
application of the enhancement for the use of a computer in third party
solicitation cases is proper. See e.g., United States v. Cramer, 777
F.3d 597, 606 (2d Cir. 2015); United States v. McMillian, 777 F.3d 444,
449-50 (7th Cir. 2015); United States v. Hill, 782 F.3d 842, 846 (11th
Cir. 2015); United States v. Pringler, 765 F.3d 455 (5th Cir. 2014).
The amendment is intended to clarify the Commission's original intent
that Application Note 4 apply only to subsection (b)(3)(A).
9. Amendment: Chapter One, Part A is amended--
in Subpart 1(4)(b) (Departures) by inserting an asterisk after
``Sec. 5K2.19 (Post-Sentencing Rehabilitative Efforts)''; and by
inserting after the first paragraph the following note:
``*Note: Section 5K2.19 (Post-Sentencing Rehabilitative Efforts)
was deleted by Amendment 768, effective November 1, 2012. (See USSG
App. C, amendment 768.)'';
and in the note at the end of Subpart 1(4)(d) (Probation and Split
Sentences) by striking ``Supplement to Appendix C'' and inserting
``USSG App. C''.
The Commentary to Sec. 1B1.13 captioned ``Application Notes'' is
amended in Note 4 by striking ``factors set forth 18 U.S.C. 3553(a)''
and inserting ``factors set forth in 18 U.S.C. 3553(a)''.
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. 2B1.1 captioned ``Application Notes'' is
amended in Note 2(A)(i) by striking ``as determined under the
provisions of Sec. 1B1.2 (Applicable Guidelines) for the offense of
conviction'' and inserting the following: ``specifically referenced in
Appendix A (Statutory Index) for the offense of conviction, as
determined under the provisions of Sec. 1B1.2 (Applicable
Guidelines)''.
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''.
Section 2D1.11 is amended in subsection (d)(6) by striking
``Pseuodoephedrine'' and inserting ``Pseudoephedrine''; and in
subsection (e)(2), under the heading relating to List I Chemicals, by
striking the period at the end and inserting a semicolon.
The Commentary to Sec. 2M2.1 captioned ``Statutory Provisions'' is
amended by striking ``Sec. 2153'' and inserting ``Sec. Sec. 2153'';
and by inserting at the end the following: ``For additional statutory
provision(s), see Appendix A (Statutory Index).''.
The Commentary to Sec. 2Q1.1 captioned ``Statutory Provisions'' is
amended by striking ``42 U.S.C. 6928(e)'' and inserting ``42 U.S.C.
6928(e), 7413(c)(5)''; and by inserting at the end the following: ``For
additional statutory provision(s), see Appendix A (Statutory Index).''.
The Commentary to Sec. 2Q1.2 captioned ``Statutory Provisions'' is
amended by striking ``7413'' and inserting ``7413(c)(1)-(4)''.
The Commentary to Sec. 2Q1.3 captioned ``Statutory Provisions'' is
amended by striking ``7413'' and inserting ``7413(c)(1)-(4)''.
The Commentary to Sec. 2Q1.3 captioned ``Application Notes'' is
amended in Note 8 by striking ``Adequacy of Criminal History Category''
and inserting ``Departures Based on Inadequacy of Criminal History
Category (Policy Statement)''.
The Commentary to Sec. 2R1.1 captioned ``Application Notes'' is
amended in Note 7 by striking ``Adequacy of Criminal History Category''
and inserting ``Departures Based on Inadequacy of Criminal History
Category (Policy Statement)''.
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 4A1.2 is amended in subsections (h), (i), and (j) by
striking ``Adequacy of Criminal History Category'' each place such term
appears and inserting ``Departures Based on Inadequacy of Criminal
History Category (Policy Statement)''.
The Commentary to Sec. 4A1.2 captioned ``Application Notes'' is
amended in Notes 6 and 8 by striking ``Adequacy of Criminal History
Category'' both places such term appears and inserting ``Departures
Based on Inadequacy of Criminal History Category (Policy Statement)''.
The Commentary to Sec. 4B1.4 captioned ``Background'' is amended
by striking ``Adequacy of Criminal History Category'' and inserting
``Departures Based on Inadequacy of Criminal History Category (Policy
Statement)''.
Section 5B1.3(a)(10) is amended by striking ``42 U.S.C. 14135a''
and inserting ``34 U.S.C. 40702''.
Section 5D1.3 is amended in subsection (a)(4) by striking ``release
on probation'' and inserting ``release on supervised release''; and in
subsection (a)(8) 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;
in the line referenced to 18 U.S.C. 371 by rearranging the guidelines
to place them in proper numerical order;
in the line referenced to 18 U.S.C. 1591 by rearranging the guidelines
to place them in proper numerical order;
[[Page 20160]]
by inserting after the line referenced to 18 U.S.C. 1864 the following
new line reference:
``18 U.S.C. 1865(c) 2B1.1'';
by inserting after the line referenced to 33 U.S.C. 3851 the following
new line references:
``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.
Reason for Amendment: This amendment makes various technical
changes to the Guidelines Manual.
First, the amendment sets forth clarifying changes to two
guidelines. The amendment amends Chapter One, Part A, Subpart 1(4)(b)
(Departures) to provide an explanatory note addressing the fact that
Sec. 5K2.19 (Post-Sentencing Rehabilitative Efforts) was deleted by
Amendment 768, effective November 1, 2012. The amendment also makes
minor clarifying changes to Application Note 2(A) to Sec. 2B1.1
(Theft, Property Destruction, and Fraud), to make clear that, for
purposes of subsection (a)(1)(A), an offense is ``referenced to this
guideline'' if Sec. 2B1.1 is the applicable Chapter Two guideline
specifically referenced in Appendix A (Statutory Index) for the offense
of conviction.
Second, the 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 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
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).
Third, the amendment makes additional 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, the amendment makes changes to:
The Commentary to Sec. 2A3.5 (Failure to Register as a Sex Offender);
the Commentary to Sec. 2X5.2 (Class A Misdemeanors (Not Covered by
Another Specific Offense Guideline)); subsection (a)(10) of Sec. 5B1.3
(Conditions of Probation); subsection (a)(8) of Sec. 5D1.3 (Conditions
of Supervised Release); and Appendix A (Statutory Index).
Fourth, the amendment makes clerical changes in Sec. Sec. 2Q1.3
(Mishandling of Other Environmental Pollutants; Recordkeeping,
Tampering, and Falsification), 2R1.1 (Bid-Rigging, Price-Fixing or
Market-Allocation Agreements Among Competitors), 4A1.2 (Definitions and
Instructions for Computing Criminal History), and 4B1.4 (Armed Career
Criminal), to correct title references to Sec. 4A1.3 (Departures Based
on Inadequacy of Criminal History Category (Policy Statement)).
Finally, the amendment also makes clerical changes to--
the Commentary to Sec. 1B1.13 (Reduction in Term of
Imprisonment Under 18 U.S.C. 3582(c)(1)(A) (Policy Statement)), by
inserting a missing word in Application Note 4;
subsection (d)(6) to Sec. 2D1.11 (Unlawfully
Distributing, Importing, Exporting or Possessing a Listed Chemical;
Attempt or Conspiracy), by correcting a typographical error in the line
referencing Pseudoephedrine;
subsection (e)(2) to Sec. 2D1.11 (Unlawfully
Distributing, Importing, Exporting or Possessing a Listed Chemical;
Attempt or Conspiracy), by correcting a punctuation mark under the
heading relating to List I Chemicals;
the Commentary to Sec. 2M2.1 (Destruction of, or
Production of Defective, War Material, Premises, or Utilities)
captioned ``Statutory Provisions,'' by adding a missing section symbol
and a reference to Appendix A (Statutory Index);
the Commentary to Sec. 2Q1.1 (Knowing Endangerment
Resulting From Mishandling Hazardous or Toxic Substances, Pesticides or
Other Pollutants) captioned ``Statutory Provisions,'' by adding a
missing reference to 42 U.S.C. 7413(c)(5) and a reference to Appendix A
(Statutory Index);
the Commentary to Sec. 2Q1.2 (Mishandling of Hazardous or
Toxic Substances or Pesticides; Recordkeeping, Tampering, and
Falsification; Unlawfully Transporting Hazardous Materials in Commerce)
captioned ``Statutory Provisions,'' by adding a specific reference to
42 U.S.C. 7413(c)(1)-(4);
the Commentary to Sec. 2Q1.3 (Mishandling of Other
Environmental Pollutants; Recordkeeping, Tampering, and Falsification)
captioned ``Statutory Provisions,'' by adding a specific reference to
42 U.S.C. 7413(c)(1)-(4);
subsection (a)(4) to Sec. 5D1.3. (Conditions of
Supervised Release), by changing an inaccurate reference to
``probation'' to ``supervised release'';
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; and
the lines referencing ``18 U.S.C. 371'' and ``18 U.S.C.
1591'' in Appendix A (Statutory Index), by rearranging the order of
certain Chapter Two guidelines references to place them in proper
numerical order.
[FR Doc. 2018-09549 Filed 5-4-18; 8:45 am]
BILLING CODE 2210-40-P