United States Sentencing Commission Public Meeting Minutes

September 1, 2010

Chair William K Sessions III called the meeting to order at 12:04 p.m. in the Commissioners’

Conference Room.

The following Commissioners were present:

! Judge William K. Sessions III, Chair

! William B. Carr, Jr., Vice Chair

! Judge Ruben Castillo, Vice Chair 

! Ketanji B. Jackson, Vice Chair

! Dabney L. Friedrich, Commissioner

! Judge Ricardo H. Hinojosa, Commissioner 

! Beryl A. Howell, Commissioner

! Jonathan J. Wroblewski, Commissioner Ex Officio

The following Commissioner was not present:

! Isaac Fulwood, Jr., Commissioner Ex Officio

The following staff participated in the meeting:

! Judith Sheon, Staff Director

! Kenneth Cohen, General Counsel

The Chair called for a motion to adopt the April 7 and April 13, 2010, public meeting minutes. 

Commissioner Howell made a motion to adopt the minutes, with Vice Chair Castillo seconding. 

Hearing no discussion, the Chair called for a vote, and the motion was adopted by voice vote. 

The Chair asked if there is a motion to adopt and publish in the Federal Register the proposed

policy priorities for the 2010-2011 amendment cycle, attached hereto as Exhibit A. Vice Chair

Castillo made such a motion, with Commissioner Friedrich seconding. The Chair called for

discussion on the vote. 

Commissioner Wroblewski reminded the Commission of the letter the Department of Justice

("DOJ") submitted identifying the challenges and opportunities facing the Commission and the

federal sentencing system. He stated his belief that the proposed policy priorities comprise an

ambitious agenda addressing many of the challenges and opportunities identified in the letter. 

Commissioner Wroblewski stated the DOJ welcomed the Commission’s plan to address systemic

and crime-specific issues along with application-specific issues under the federal sentencing

guidelines. He noted that the Fair Sentencing Act of 2010 is a significant achievement and that

the DOJ looks forward to working with the Commission on its implementation.

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Vice Chair Castillo agreed with Commissioner Wroblewski’s assessment that the Commission’s

proposed agenda is ambitious, observing that a majority of the public comment supported the

proposed priorities. Noting that the proposed agenda is a good faith effort by the Commission

to prioritize important issues for the upcoming amendment cycle, Vice Chair Castillo stated he

would not be surprised if the Commission had to defer action on some of the proposed priorities. 

Chair Sessions also agreed the proposed agenda is ambitious and exciting because the

Commission intends to take a broad look at the sentencing issues the nation faces. He added that

he looks forward to working with the DOJ, the Federal Public Defenders, and the Commission’s

various advisory groups during the upcoming amendment cycle. Hearing no further discussion,

the Chair called for a vote. The motion was adopted with the Chair noting that at least four

commissioners voted in favor of the motion.

The Chair stated that the next matter concerned a possible vote to publish in the Federal Register

a proposed emergency amendment and issues for comment that implements The Fair Sentencing

Act of 2010, Pub. L. 111–220 (the "Act"), signed into law on August 3, 2010. The Act reduces

statutory penalties for cocaine base ("crack cocaine") offenses and eliminates the statutory

mandatory minimum sentence for simple possession of crack cocaine. The Act also contains

directives to the Commission to review and amend the sentencing guidelines to account for

certain aggravating and mitigating circumstances in drug trafficking cases.

Section 8 of the Act invokes the Commission's emergency, temporary amendment authority

under section 21(a) of the Sentencing Act of 1987 (28 U.S.C. § 994 note) and directs the

Commission to promulgate within 90 days — i.e., not later than November 1, 2010 — the

amendments to the Guidelines Manual provided for by the Act. The Chair called on Mr. Cohen

to inform the Commission on the possible vote.

Mr. Cohen stated that the proposed amendment, attached hereto as Exhibit B, is a multi-part

amendment in response to the Act. Part A responds to changes to the statutory penalties for

crack cocaine offense. Section 2 of the Act amended these laws to raise the specified quantities

of crack cocaine associated with the tiered penalties in 21 U.S.C. §§ 841 (Prohibited Acts

[regarding controlled substances]) and 960 (Prohibited Acts [regarding the importation or

exportation of controlled substances]). Before the Act, the 5-year mandatory minimum applied

to offenses involving 5 grams (or more) of crack cocaine, and the 10-year mandatory minimum

applied to offenses involving 50 grams (or more) of crack cocaine. Section 2 of the Act raised

these quantities to 28 grams and 280 grams, respectively.

Part A of the proposed amendment requests comment on what temporary amendments to the

Guidelines Manual it should promulgate in response to the statutory changes made by section 2

of the Act. In particular, the Commission requests comment on what amendments should be

made to the Drug Quantity Table in USSG §2D1.1 (Unlawful Manufacturing, Importing,

Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt

or Conspiracy). Two options for amending the Drug Quantity Table are presented for comment.

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Part B of the proposed amendment responds to section 3 of the Act, which amended subsection

(a) of 21 U.S.C. § 844 (Penalty for simple possession) to eliminate the 5-year mandatory

minimum term of imprisonment for simple possession of more than 5 grams of crack cocaine. 

The proposed amendment deletes as obsolete the cross reference at USSG §2D2.1(b)(1) to

USSG §2D1.1 that was established by the Commission in 1989 to account for the statutory

minimum in section 844(a).

Part C of the proposed amendment responds to sections 5, 6, and 7 of the Act, which contain

directives to the Commission to provide certain enhancements and adjustments for drug

trafficking offenses. First, Part C of the proposed amendment responds to section 5 of the Act,

which directs the Commission to "review and amend the Federal sentencing guidelines to ensure

that the guidelines provide an additional penalty increase of at least 2 offense levels if the

defendant used violence, made a credible threat to use violence, or directed the use of violence

during a drug trafficking offense." The proposed amendment establishes a new specific offense

characteristic in USSG §2D1.1 that provides an enhancement of [2][4][6] levels if violence as

described in the directive was involved in the offense.

Second, Part C of the proposed amendment responds to section 6(1) of the Act, which directs the

Commission to "review and amend the Federal sentencing guidelines to ensure an additional

increase of at least 2 offense levels if . . . the defendant bribed, or attempted to bribe, a Federal,

State, or local law enforcement official in connection with a drug trafficking offense." The

proposed amendment establishes a new specific offense characteristic in USSG §2D1.1 that

provides an enhancement of [2][4] levels if the defendant [was convicted of bribing or

attempting to bribe][bribed or attempted to bribe] a law enforcement officer to facilitate the

commission of the offense.

Third, Part C of the proposed amendment responds to section 6(2) of the Act, which directs the

Commission to "review and amend the Federal sentencing guidelines to ensure an additional

increase of at least 2 offense levels if . . . the defendant maintained an establishment for the

manufacture or distribution of a controlled substance, as generally described in section 416 of

the Controlled Substances Act (21 U.S.C. § 856)." The proposed amendment establishes a new

specific offense characteristic in USSG §2D1.1 that provides an enhancement of [2][4] levels if

the defendant maintained an establishment for the manufacture or distribution of a controlled

substance, as described in 21 U.S.C. § 856.

Fourth, Part C of the proposed amendment responds to section 6(3) of the Act, which directs the

Commission to "review and amend the Federal sentencing guidelines to ensure an additional

increase of at least 2 offense levels if . . . (A) the defendant is an organizer, leader, manager, or

supervisor of drug trafficking activity subject to an aggravating role enhancement under the

guidelines; and (B) the offense involved 1 or more of " the factors enumerated in the directive

was present in the offense. The proposed amendment establishes a new specific offense

characteristic in §2D1.1 that provides an enhancement of [2][4] levels if the defendant receives

an adjustment under USSG §3B1.1 (Aggravating Role) and the offense involved one or more of

the factors listed in the directive.

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Fifth, Part C of the proposed amendment responds to section 7(2) of the Act, which directs the

Commission to "review and amend the Federal sentencing guidelines and policy statements to

ensure that . . . there is an additional reduction of 2 offense levels if the defendant--" meets three

criteria specified in the directive. The proposed amendment establishes a new specific offense

characteristic in USSG §2D1.1 that provides a downward adjustment of 2 levels if the defendant

receives an adjustment under subsection (a) of USSG §3B1.2 (Mitigating Role) and the factors

listed in the directive apply. 

Part C of the proposed amendment also includes several issues for comment regarding how the

enhancements should interact with other guideline provisions, including whether they should

apply cumulatively with other potential applicable provisions in the Guidelines Manual.

Part D of the proposed amendment responds to section 7(1) of the Act, which directs the

Commission to review and amend the Federal sentencing guidelines to ensure that the base

offense level based solely on drug quantity for a defendant who receives to a minimum role

adjustment under USSG §3B1.2(a) shall not exceed level 32. The proposed amendment adds a

sentence at the end of USSG §2D1.1(a)(5), the “mitigating role cap,” to reflect the new

maximum offense level of 32 required by the directive.

Mr. Cohen advised the commissioners that a motion to publish the proposed amendment would

be in order, with a 30-day comment period, not the usual 60-day comment period provided for

by the Commission’s Rules of Practice and Procedure, due to the emergency nature of the

proposed amendment and the 90-day deadline imposed by Congress, and with staff authorized to

make technical and conforming changes as needed.

Chair Sessions called for a motion as suggested by Mr. Cohen. Vice Chair Carr made a motion

to publish the proposed amendment, with Vice Chair Castillo seconding. The Chair called for

discussion on the motion. Vice Chair Castillo commended Chair Sessions, past chairs Wilkins,

Conaboy, and Hinojosa, his fellow commissioners, and staff for their tireless work to reach this

historic moment. He recognized that the Act presents a great challenge for the Commission: 30

percent of the criminal docket involves drug trafficking offenses, and the Commission has 90

days to implement the Act. Vice Chair Castillo welcomed the opportunity to focus the drug

trafficking guideline more on the defendant’s role in the offense rather than drug quantity and

urged caution in implementing the Act to ensure that the guideline amendment applies to the

worst drug traffickers as Congress intended. He expressed cautious optimism that the

Commission can accomplish this result in the required time period. Vice Chair Castillo stated

his desire that the public would carefully read the proposed amendment and provide comment to

the Commission. Vice Chair Jackson joined Vice Chair Castillo in looking forward to receiving

robust public comment on the proposed amendment, especially regarding the application and

interaction of the Act’s sentencing enhancements with existing guideline provisions. Hearing no

further discussion, the Chair called for a vote. The motion was adopted with the Chair noting

that at least three commissioners voted in favor of the motion.

Mr. Cohen stated that the next proposed amendment, attached hereto as Exhibit C, makes certain

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technical and conforming changes to commentary in the Guidelines Manual. First, the proposed

amendment makes certain technical and conforming changes in connection with the amendments

that the Commission submitted to Congress on April 29, 2010, specifically the commentary in

USSG §§2B1.5 (Theft of, Damage to, or Destruction of, Cultural Heritage Resources; Unlawful

Sale, Purchase, Exchange, Transportation, or Receipt of Cultural Heritage Resources), 2K2.1

(Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition), and 2P1.1

(Escape, Instigating or Assisting Escape). Second, the proposed amendment makes certain other

stylistic and clerical changes to commentary in the Guidelines Manual, specifically in USSG

§§3A1.2 (Official Victim), 3C1.1 (Obstructing or Impeding the Administration of Justice), 5E1.5

(Costs of Prosecution), 7B1.4 (Term of Imprisonment), and 8A1.2 (Application Instructions -

Organizations). Mr. Cohen advised the commissioners that a motion to promulgate the 

proposed amendment would be in order, with a November 1, 2010, effective date, and with staff

authorized to make technical and conforming changes as needed.

Chair Sessions called for a motion as suggested by Mr. Cohen. Vice Chair Jackson made a

motion to promulgate the proposed amendment, with Commissioner Howell seconding. The

Chair called for discussion on the vote, and, hearing no discussion, the Chair called for a vote. 

The motion was adopted with the Chair noting that at least four commissioners voted in favor of

the motion.

Chair Sessions asked if there was any further business before the Commission and hearing none,

asked if there was a motion to adjourn the meeting. Vice Chair Castillo made a motion to

adjourn, with Vice Chair Carr seconding. The Chair called for a vote on the motion, and the

motion was adopted by a voice vote. The meeting was adjourned at 12:19 p.m.

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EXHIBIT A

BAC2210-40

UNITED STATES SENTENCING COMMISSION

Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of final priorities.

SUMMARY: In July 2010, the Commission published a notice of possible policy priorities

for the amendment cycle ending May 1, 2011. See 75 FR 41927-41929 (July 19, 2010). After

reviewing public comment received pursuant to the notice of proposed priorities, the

Commission has identified its policy priorities for the upcoming amendment cycle and hereby

gives notice of these policy priorities.

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs Officer,

Telephone: (202) 502-4597.

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is an

independent agency in the judicial branch of the United States Government. The Commission

promulgates sentencing guidelines and policy statements for federal sentencing courts pursuant

to 28 U.S.C. § 994(a). The Commission also periodically reviews and revises previously

promulgated guidelines pursuant to 28 U.S.C. § 994(o) and submits guideline amendments to the

Congress not later than the first day of May each year pursuant to 28 U.S.C. § 994(p).

As part of its statutory authority and responsibility to analyze sentencing issues,

including

operation of the federal sentencing guidelines, the Commission has identified its policy priorities

for the amendment cycle ending May 1, 2011. The Commission recognizes, however, that other

factors, such as the enactment of any legislation requiring Commission action, may affect the

Commission’s ability to complete work on any or all of its identified priorities by the statutory

deadline of May 1, 2011. Accordingly, it may be necessary to continue work on any or all of

these issues beyond the amendment cycle ending on May 1, 2011.

As so prefaced, the Commission has identified the following priorities:

(1) Implementation of the Fair Sentencing Act of 2010, Pub. L. 111–220, regarding

offenses involving cocaine base ("crack" cocaine) and offenses involving drug trafficking,

including promulgation of a temporary, emergency amendment under section 8 of that Act and

promulgation of a permanent amendment implementing that Act, including possible

consideration of amending any related adjustments; and possible consideration of amending the

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Drug Quantity Table in §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking

(Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) across

drug types.

(2) Continuation of its work with the congressional, executive, and judicial branches of

government, and other interested parties, to study the manner in which United States v. Booker,

543 U.S. 220 (2005), and subsequent Supreme Court decisions have affected federal sentencing

practices, the appellate review of those practices, and the role of the federal sentencing

guidelines. The Commission anticipates that it will issue a report with respect to its findings,

possibly including (A) an evaluation of the impact of those decisions on the federal sentencing

guideline system; (B) development of recommendations for legislation regarding federal

sentencing policy; (C) an evaluation of the appellate standard of review applicable to postBooker federal sentencing decisions; and (D) possible consideration of amendments to the

federal sentencing guidelines. Such findings will be informed by the testimony received at seven 

regional public hearings the Commission held in 2009-2010, feedback received from the

judiciary contained in the Results of Survey of United States District Judges January 2010

through March 2010 issued in June 2010, and other information and input.

(3) Continuation of its study of and, pursuant to the directive in section 4713 of the

Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009, Pub. L. 111–84,

report to Congress on statutory mandatory minimum penalties, including a review of the

operation of the "safety valve" provision at 18 U.S.C. § 3553(e). The findings of the report will

be informed by the testimony received at the hearing on statutory mandatory minimum penalties

the Commission held on May 27, 2010, the regional public hearings and survey of United States

District Judges referred to in paragraph (2), and other information and input.

(4) Study of and, pursuant to the directive in section 107(b) of the Comprehensive Iran

Sanctions, Accountability, and Divestment Act of 2010, Pub. L. 111–195, report to Congress

regarding violations of section 5(a) of the United Nations Participation Act of 1945 (22 U.S.C. §

287c(a)), sections 38, 39, and 40 of the Arms Export Control Act (22 U.S.C. §§ 2278, 2279, and

2780), and the Trading with the Enemy Act (50 U.S.C. App. 1 et seq.), including consideration

of amendments to §2M5.2 (Exportation of Arms, Munitions, or Military Equipment or Services

Without Required Validated Export License) or other guidelines in Part K or Part M of Chapter

Two of the Guidelines Manual that might be appropriate in light of the information obtained

from such study.

(5) Implementation of the directive in section 10606(a)(2)(A) of the Patient Protection

and Affordable Care Act, Pub. L. 111–148, regarding health care fraud offenses; the directives in

section 1079A of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L.

111–203, regarding securities fraud offenses and financial institution fraud offenses; and any

other crime legislation enacted during the 111th Congress warranting a Commission response.

(6) Continuation of its review of child pornography offenses and possible report to

Congress as a result of such review. It is anticipated that any such report would include (A) a

review of the incidence of, and reasons for, departures and variances from the guideline

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sentence; (B) a compilation of studies on, and analysis of, recidivism by child pornography

offenders; and (C) possible recommendations to Congress on any statutory changes that may be

appropriate. 

(7) Continuation of its review of departures within the guidelines, including provisions in

Parts H and K of Chapter Five of the Guidelines Manual, and the extent to which pertinent

statutory provisions prohibit, discourage, or encourage certain factors as forming the basis for

departure from the guideline sentence.

(8) Continuation of its multi-year study of the statutory and guideline definitions of

"crime of violence", "aggravated felony", "violent felony", and "drug trafficking offense",

including (A) an examination of relevant circuit conflicts regarding whether any offense is

categorically a "crime of violence", "aggravated felony", "violent felony", or "drug trafficking

offense" for purposes of triggering an enhanced sentence under certain federal statutes and

guidelines; (B) possible consideration of an amendment to provide an alternative approach to the

"categorical approach", see Taylor v. United States, 495 U.S. 575 (1990); Shepard v. United

States, 544 U.S. 13 (2005), for determining the applicability of guideline enhancements; and (C)

possible consideration of an amendment to provide that the time period limitations in subsection

(e) of §4A1.2 (Definitions and Instructions for Computing Criminal History) apply for purposes

of determining the applicability of enhancements in §2L1.2 (Unlawfully Entering or Remaining

in the United States).

(9) Consideration of a possible amendment to provide a reduction in the offense level for

certain deportable aliens who agree to a stipulated order of deportation.

(10) Examination of, and possible amendments to, the guidelines and policy statements in

Part D of Chapter Five of the Guidelines Manual pertaining to supervised release.

(11) Continued study of alternatives to incarceration, including possible consideration of

any changes to the Guidelines Manual that might be appropriate in light of the information

obtained from that study.

 (12) Resolution of circuit conflicts, pursuant to the Commission’s continuing authority

and responsibility, under 28 U.S.C. § 991(b)(1)(B) and Braxton v. United States, 500 U.S. 344

(1991), to resolve conflicting interpretations of the guidelines by the federal courts.

(13) Multi-year review of the guidelines pertaining to environmental crimes, with

particular consideration of whether the fine provisions in Part C of Chapter Eight of the

Guidelines Manual should apply to such offenses.

(14) Consideration of miscellaneous guideline application issues coming to the

Commission’s attention from case law and other sources.

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AUTHORITY: 28 U.S.C. § 994(a), (o); USSC Rules of Practice and Procedure 5.2.

William K. Sessions III

Chair

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EXHIBIT B

PROPOSED AMENDMENT: FAIR SENTENCING ACT OF 2010

Synopsis of Proposed Amendment: The Fair Sentencing Act of 2010, Pub. L. 111–220 (the "Act"), was

signed into law on August 3, 2010. The Act reduces statutory penalties for cocaine base (crack cocaine)

offenses and eliminates the mandatory minimum sentence for simple possession of crack cocaine. The Act

also contains directives to the Commission to review and amend the sentencing guidelines to account for

certain aggravating and mitigating circumstances in drug trafficking cases.

Section 8 of the Act invokes the Commission's emergency, temporary amendment authority under section

21(a) of the Sentencing Act of 1987 (28 U.S.C. § 994 note) and directs the Commission to promulgate

within 90 days — i.e., not later than November 1, 2010 — the amendments to the Guidelines Manual

provided for by the Act. It provides in full as follows:

SEC. 8. EMERGENCY AUTHORITY FOR UNITED STATES

SENTENCING COMMISSION.

 The United States Sentencing Commission shall--

(1) promulgate the guidelines, policy statements, or

amendments provided for in this Act as soon as

practicable, and in any event not later than 90 days after

the date of enactment of this Act, in accordance with the

procedure set forth in section 21(a) of the Sentencing

Act of 1987 (28 U.S.C. 994 note), as though the

authority under that Act had not expired; and

(2) pursuant to the emergency authority provided under

paragraph (1), make such conforming amendments to

the Federal sentencing guidelines as the Commission

determines necessary to achieve consistency with other

guideline provisions and applicable law.

Section 21(a) of the Sentencing Act of 1987 provides in full as follows:

SEC. 21. EMERGENCY GUIDELINES PROMULGATION

AUTHORITY.

 (a) In General.)In the case of)

(1) an invalidated sentencing guideline;

(2) the creation of a new offense or amendment of an

existing offense; or

(3) any other reason relating to the application of a

previously established sentencing guideline, and

determined by the United States Sentencing Commission

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to be urgent and compelling;

the Commission, by affirmative vote of at least four members of the

Commission, and pursuant to its rules and regulations and consistent

with all pertinent provisions of title 28 and title 18, United States Code,

shall promulgate and distribute to all courts of the United States and to

the United States Probation System a temporary guideline or amendment

to an existing guideline, to remain in effect until and during the pendency

of the next report to Congress under section 994(p) of title 28, United

States Code.

Any temporary amendment promulgated by the Commission under the section 21(a) authority will expire

not later than November 1, 2011. See section 21(a); 28 U.S.C. § 994(p). The Commission will continue

work on the issues raised by the Act during the regular amendment cycle ending May 1, 2011, with a view

to re-promulgating any temporary amendment as a permanent amendment (in its original form, or with

revisions) under 28 U.S.C. § 994(p).

The proposed amendment and issues for comment address the issues arising under the Act in the

following manner:

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(A) Changes to Statutory Terms of Imprisonment for Crack Cocaine

Issue for Comment:

1. Federal drug laws establish three tiers of penalties for manufacturing and trafficking in cocaine, each

based on the amount of cocaine involved. See 21 U.S.C. §§ 841(b)(1)(A), (B), (C), 960(b)(1), (2), (3). 

For smaller quantities, the maximum term of imprisonment is 20 years, and there is no mandatory

minimum term of imprisonment. If the amount of cocaine involved reaches a specified quantity, however,

the maximum term increases to 40 years, and a mandatory minimum term of 5 years applies. If the

amount of cocaine reaches ten times that specified quantity, the maximum term is life, and a mandatory

minimum term of 10 years applies.

Section 2 of the Act amended these laws to raise the specified quantities of crack cocaine associated with

these two higher tiers of penalties. Before the Act, the 5-year mandatory minimum applied to offenses

involving 5 grams (or more) of crack cocaine, and the 10-year mandatory minimum applied to offenses

involving 50 grams (or more) of crack cocaine. Section 2 of the Act raised these quantities to 28 grams

and 280 grams, respectively.

The Commission requests comment on what temporary amendments to the Guidelines Manual it should

promulgate in response to the statutory changes made by section 2 of the Act. In particular, the

Commission requests comment on what amendments should be made to the Drug Quantity Table in

§2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent

to Commit These Offenses); Attempt or Conspiracy). When Congress has provided statutory mandatory

minimum sentences based on drug quantity, the Commission has generally responded by incorporating

the statutory mandatory minimum sentences into the Drug Quantity Table and extrapolating upward and

downward to set guideline sentencing ranges for all drug quantities. The drug quantity thresholds in the

Drug Quantity Table have generally been set so as to provide base offense levels corresponding to

guideline ranges that are above the statutory mandatory minimum penalties.

Until 2007, the drug quantity thresholds for crack cocaine followed the same principle. Accordingly,

offenses involving 5 grams or more of crack cocaine were assigned a base offense level (level 26)

corresponding to a sentencing guideline range of 63 to 78 months for a defendant in Criminal History

Category I (a guideline range that exceeds the 5-year statutory minimum for such offenses by at least

three months). Similarly, offenses involving 50 grams or more of crack cocaine were assigned a base

offense level (level 32) corresponding to a sentencing guideline range of 121 to 151 months for a

defendant in Criminal History Category I (a guideline range that exceeds the 10-year statutory minimum

for such offenses by at least 1 month). In Amendment 706, the Commission amended the Drug Quantity

Table for crack cocaine, reducing the base offense levels for these quantities to level 24 and level 30,

respectively, and extrapolating upward and downward for other crack cocaine quantities. See USSG

App. C, Amendment 706 (effective November 1, 2007). Base offense levels 24 and 30 each correspond to

a guideline range for a defendant in Criminal History Category I that includes the statutory mandatory

minimum penalty. For base offense level 24, the guideline range is 51-63 months; for base offense level

30, the guideline range is 97-121 months. The Commission also amended the commentary to §2D1.1 to

revise the manner in which combined offense levels are determined in cases involving both crack cocaine

and one or more other controlled substances. See USSG App. C, Amendment 715 (effective May 1,

2008).

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Given the statutory changes made by section 2 of the Act, how should the Commission revise the Drug

Quantity Table for offenses involving crack cocaine?

In particular, should the base offense levels for crack cocaine again be set so that the statutory minimum

penalties correspond to levels 26 and 32, using the new drug quantities established by the Act (the "level

26 option")? Or should the base offense levels for crack cocaine continue to be set so that the statutory

minimum penalties correspond to levels 24 and 30, using the new drug quantities established by the Act

(the "level 24 option")? A comparison of the base offense levels ("BOL") and quantities for these options

is as follows:

BOL Quantity Under Level 26 Option Quantity Under Level 24 Option

38 8.4 KG or more 25.2 KG or more

36 At least 2.8 KG but less than 8.4 KG At least 8.4 KG but less than 25.2 KG

34 At least 840 G but less than 2.8 KG At least 2.8 KG but less than 8.4 KG

32 At least 280 G but less than 840 G At least 840 G but less than 2.8 KG

30 At least 196 G but less than 280 G At least 280 G but less than 840 G

28 At least 112 G but less than 196 G At least 196 G but less than 280 G

26 At least 28 G but less than 112 G At least 112 G but less than 196 G

24 At least 22.4 G but less than 28 G At least 28 G but less than 112 G

22 At least 16.8 G but less than 22.4 G At least 22.4 G but less than 28 G

20 At least 11.2 G but less than 16.8 G At least 16.8 G but less than 22.4 G

18 At least 5.6 G but less than 11.2 G At least 11.2 G but less than 16.8 G

16 At least 2.8 G but less than 5.6 G At least 5.6 G but less than 11.2 G

14 At least 1.4 G but less than 2.8 G At least 2.8 G but less than 5.6 G

12 Less than 1.4 G Less than 2.8 G

Whichever option is adopted, conforming changes to the commentary to §2D1.1 will need to be made to

revise the manner in which combined offense levels are determined in cases involving crack cocaine and

one or more other controlled substances. Under either option, 1 gram of crack cocaine would be

equivalent to 3,571 grams of marijuana. However, if the level 26 option is adopted, the combined offense

level in such a case would be determined under Application Note 10 in the same manner as for any other

case involving more than one controlled substance, i.e., Application Note 10(D) would not apply. If the

level 24 option is adopted, in contrast, Application Note 10(D) would continue to apply, except that

Application Note 10(D)(ii)(I) would be amended to read "the offense involved 25.2 kg or more, or less

than 1.4 g, of cocaine base; or", and the examples in Application Note 10(D)(iii) would be revised.

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(B) Elimination of Mandatory Minimum for Simple Possession of Crack Cocaine

Synopsis of Proposed Amendment: This part of the proposed amendment responds to section 3 of the

Act, which amended 21 U.S.C. § 844(a) to eliminate the 5-year mandatory minimum term of

imprisonment (and 20-year statutory maximum) for simple possession of more than 5 grams of crack

cocaine (or, for certain repeat offenders, more than 1 gram of crack cocaine). Accordingly, the statutory

penalty for simple possession of crack cocaine is now the same as for simple possession of most other

controlled substances: for a first offender, a maximum term of imprisonment of one year; for repeat

offenders, maximum terms of 2 years or 3 years, and minimum terms of 15 days or 90 days, depending on

the prior convictions. See 21 U.S.C. § 844(a).

Offenses under section 844(a) are referenced in Appendix A (Statutory Index) to §2D2.1 (Unlawful

Possession; Attempt or Conspiracy). Section 2D2.1 contains a cross reference at subsection (b)(1) that

was established by the Commission in 1989 to address the statutory minimum in section 844(a). See

USSG App. C, Amendment 304 (effective November 1, 1989). Under the cross reference, an offender who

possessed more than 5 grams of crack cocaine is sentenced under the drug trafficking guideline, §2D1.1. 

To reflect the elimination of this statutory minimum, the proposed amendment deletes as obsolete the

cross reference at §2D2.1(b)(1). Conforming changes to the commentary are also made.

Proposed Amendment:

§2D2.1. Unlawful Possession; Attempt or Conspiracy 

(a) Base Offense Level:

(1) 8, if the substance is heroin or any Schedule I or II opiate, an analogue of

these, or cocaine base; or 

(2) 6, if the substance is cocaine, flunitrazepam, LSD, or PCP; or 

(3) 4, if the substance is any other controlled substance or a list I chemical. 

(b) Cross References

(1) If the defendant is convicted of possession of more than 5 grams of a

mixture or substance containing cocaine base, apply §2D1.1 (Unlawful

Manufacturing, Importing, Exporting, or Trafficking) as if the defendant

had been convicted of possession of that mixture or substance with intent

to distribute.

(21) If the offense involved possession of a controlled substance in a prison,

-14-
correctional facility, or detention facility, apply §2P1.2 (Providing or

Possessing Contraband in Prison).

Commentary

Statutory Provision: 21 U.S.C. § 844(a). For additional statutory provision(s), see Appendix A

(Statutory Index).

Application Note:

1. The typical case addressed by this guideline involves possession of a controlled substance by the

defendant for the defendant’s own consumption. Where the circumstances establish intended

consumption by a person other than the defendant, an upward departure may be warranted.

Background: Mandatory (statutory) minimum penalties for several categories of cases, ranging from

fifteen days’ to fivethree years’ imprisonment, are set forth in 21 U.S.C. § 844(a). When a mandatory

minimum penalty exceeds the guideline range, the mandatory minimum becomes the guideline sentence. 

See §5G1.1(b). Note, however, that 18 U.S.C. § 3553(f) provides an exception to the applicability of

mandatory minimum sentences in certain cases. See §5C1.2 (Limitation on Applicability of Statutory

Minimum Sentences in Certain Cases).

Section 2D2.1(b)(1) provides a cross reference to §2D1.1 for possession of more than five grams

of a mixture or substance containing cocaine base, an offense subject to an enhanced penalty under 21

U.S.C. § 844(a). Other cases for which enhanced penalties are provided under 21 U.S.C. § 844(a)(e.g.,

for a person with one prior conviction, possession of more than three grams of a mixture or substance

containing cocaine base; for a person with two or more prior convictions, possession of more than one

gram of a mixture or substance containing cocaine base) are to be sentenced in accordance with

§5G1.1(b).

-15-
(C) Enhancements and Adjustments

Synopsis of Proposed Amendment: This part of the proposed amendment responds to sections 5, 6, and

7 of the Act, which contain directives to the Commission to provide certain enhancements and

adjustments for drug trafficking offenses.

Violence Enhancement

First, this part of the proposed amendment responds to section 5 of the Act, which directs the Commission

to "review and amend the Federal sentencing guidelines to ensure that the guidelines provide an

additional penalty increase of at least 2 offense levels if the defendant used violence, made a credible

threat to use violence, or directed the use of violence during a drug trafficking offense."

This part of the proposed amendment implements this directive by amending §2D1.1 to provide a new

specific offense characteristic at subsection (b)(2) that provides an enhancement of [2][4][6] levels if

violence as described in the directive was involved. A conforming amendment to Application Note 3 is

also made.

Bribery Enhancement

Second, this part of the proposed amendment responds to section 6(1) of the Act, which directs the

Commission to "review and amend the Federal sentencing guidelines to ensure an additional increase of

at least 2 offense levels if . . . the defendant bribed, or attempted to bribe, a Federal, State, or local law

enforcement official in connection with a drug trafficking offense."

This part of the proposed amendment implements this directive by amending §2D1.1 to establish a new

specific offense characteristic at subsection (b)(11) that provides an enhancement of [2][4] levels if the

defendant [was convicted of bribing or attempting to bribe][bribed or attempted to bribe] a law

enforcement officer to facilitate the commission of the offense.

Drug Establishment Enhancement

Third, this part of the proposed amendment responds to section 6(2) of the Act, which directs the

Commission to "review and amend the Federal sentencing guidelines to ensure an additional increase of

at least 2 offense levels if . . . the defendant maintained an establishment for the manufacture or

distribution of a controlled substance, as generally described in section 416 of the Controlled Substances

Act (21 U.S.C. 856)."

This part of the proposed amendment implements this directive by amending §2D1.1 to establish a new

specific offense characteristic at subsection (b)(12) that provides an enhancement of [2][4] levels if the

defendant maintained an establishment for the manufacture or distribution of a controlled substance, as

described in 21 U.S.C. § 856.

-16-
Enhancement Based on "Super-Aggravating" Factors

Fourth, this part of the proposed amendment responds to section 6(3) of the Act, which directs the

Commission to "review and amend the Federal sentencing guidelines to ensure an additional increase of

at least 2 offense levels if . . . (A) the defendant is an organizer, leader, manager, or supervisor of drug

trafficking activity subject to an aggravating role enhancement under the guidelines; and (B) the offense

involved 1 or more of the following super-aggravating factors:"

(i) The defendant--

(I) used another person to purchase, sell, transport, or store

controlled substances;

(II) used impulse, fear, friendship, affection, or some

combination thereof to involve such person in the

offense; and

(III) such person had a minimum knowledge of the illegal

enterprise and was to receive little or no compensation

from the illegal transaction.

(ii) The defendant--

(I) knowingly distributed a controlled substance to a person

under the age of 18 years, a person over the age of 64

years, or a pregnant individual;

(II) knowingly involved a person under the age of 18 years,

a person over the age of 64 years, or a pregnant

individual in drug trafficking;

(III) knowingly distributed a controlled substance to an

individual who was unusually vulnerable due to physical

or mental condition, or who was particularly susceptible

to criminal conduct; or

(IV) knowingly involved an individual who was unusually

vulnerable due to physical or mental condition, or who

was particularly susceptible to criminal conduct, in the

offense.

-17-
(iii) The defendant was involved in the importation into the United

States of a controlled substance.

(iv) The defendant engaged in witness intimidation, tampered with or

destroyed evidence, or otherwise obstructed justice in connection

with the investigation or prosecution of the offense.

(v) The defendant committed the drug trafficking offense as part of a

pattern of criminal conduct engaged in as a livelihood.

This part of the proposed amendment implements this directive by creating a new enhancement of [2][4]

levels in subsection (b)(14) of §2D1.1 if the defendant receives an adjustment under §3B1.1 and the

offense involved one or more of the factors described in the directive.

Downward Adjustment Based on Certain Mitigating Factors

Fifth, this part of the proposed amendment responds to section 7(2) of the Act, which directs the

Commission to "review and amend the Federal sentencing guidelines and policy statements to ensure that

. . . there is an additional reduction of 2 offense levels if the defendant--"

(A) otherwise qualifies for a minimal role adjustment under the

guidelines and had a minimum knowledge of the illegal

enterprise;

(B) was to receive no monetary compensation from the illegal

transaction; and

(C) was motivated by an intimate or familial relationship or by

threats or fear when the defendant was otherwise unlikely to

commit such an offense.

This part of the proposed amendment implements this directive by creating a new downward adjustment

of 2 levels in subsection (b)(15) of §2D1.1 if the defendant receives an adjustment under §3B1.2(a) and

the other factors described in the directive apply.

Technical and Conforming Changes

Finally, to reflect the renumbering of specific offense characteristics in §2D1.1(b) by this part of the

proposed amendment, this part of the proposed amendment makes technical and conforming changes to

the commentary to §2D1.1 and to §2D1.14 (Narco-Terrorism).

-18-
Issues for comment are also included.

Proposed Amendment:

§2D1.1. Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including

Possession with Intent to Commit These Offenses); Attempt or Conspiracy 

* * *

(b) Specific Offense Characteristics

(1) If a dangerous weapon (including a firearm) was possessed, increase by 2

levels.

(2) If the defendant used violence, made a credible threat to use violence, or

directed the use of violence, increase by [2][4][6] levels.

[renumber existing (2)-(9) as (3)-(10)]

(11) If the defendant [was convicted of bribing or attempting to bribe][bribed

or attempted to bribe] a law enforcement officer to facilitate the

commission of the offense, increase by [2][4] levels.

(12) If the defendant maintained an establishment for the manufacture or

distribution of a controlled substance, as described in 21 U.S.C. § 856,

increase by [2][4] levels.

(1013) (Apply the greatest):

* * *

(14) If the defendant receives an adjustment under §3B1.1 (Aggravating Role)

and the offense involved 1 or more of the following factors:

(A) (i) the defendant used impulse, fear, friendship, affection, or

some combination thereof to involve another individual in the

purchase, sale, transport, or storage of controlled substances; and

(ii) the individual (I) was to receive little or no compensation

from that purchase, sale, transport, or storage of controlled

substances and (II) had minimal knowledge of [the scope and

-19-
structure of] the enterprise;

(B) the defendant knowingly (i) distributed a controlled substance to

an individual under the age of 18 years, an individual over the

age of 64 years, a pregnant individual, an individual who was

unusually vulnerable due to physical or mental condition, or an

individual who was particularly susceptible to criminal conduct,

or (ii) involved such an individual in the offense;

(C) the defendant was involved in the importation of a controlled

substance;

(D) the defendant engaged in witness intimidation, tampered with or

destroyed evidence, or otherwise obstructed justice;

(E) the defendant committed the offense as part of a pattern of

criminal conduct engaged in as a livelihood;

increase by [2][4] levels.

(15) If the defendant receives an adjustment under subsection (a) of §3B1.2

(Mitigating Role) and the offense involved all of the following factors:

(A) the defendant was motivated by an intimate or familial

relationship or by threats or fear to commit the offense and was

otherwise unlikely to commit such an offense;

(B) the defendant was to receive no monetary compensation from the

offense; and

(C) the defendant had minimal knowledge of [the scope and structure

of] the enterprise,

decrease by 2 levels.

(1116) If the defendant meets the criteria set forth in subdivisions (1)-(5) of

subsection (a) of §5C1.2 (Limitation on Applicability of Statutory

Minimum Sentences in Certain Cases), decrease by 2 levels.

* * *

-20-
Commentary

* * *

Application Notes:

* * *

3. Definitions of "firearm" and "dangerous weapon" are found in the Commentary to §1B1.1

(Application Instructions). The enhancement for weapon possession in subsection (b)(1) reflects

the increased danger of violence when drug traffickers possess weapons. The

adjustmentSubsection (b)(1) should be applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense. For example, the enhancement

subsection (b)(1) would not be applied if the defendant, arrested at his residence, had an

unloaded hunting rifle in the closet. The enhancement also applies to offenses that are

referenced to §2D1.1; see §§2D1.2(a)(1) and (2), 2D1.5(a)(1), 2D1.6, 2D1.7(b)(1), 2D1.8,

2D1.11(c)(1), 2D1.12(c)(1), and 2D2.1(b)(1). Although the enhancements for weapon possession

in subsection (b)(1) and violence in subsection (b)(2) may be triggered by the same conduct (such

as where the defendant uses the possessed weapon to make a credible threat to use violence), they

are to be applied cumulatively (added together), as is generally the case when two or more

specific offense characteristics each apply. See §1B1.1 (Application Instructions), Application

Note 4(A). 

* * *

8. Interaction with §3B1.3.—A defendant who used special skills in the commission of the offense

may be subject to an adjustment under §3B1.3 (Abuse of Position of Trust or Use of Special

Skill). Certain professionals often occupy essential positions in drug trafficking schemes. These

professionals include doctors, pilots, boat captains, financiers, bankers, attorneys, chemists,

accountants, and others whose special skill, trade, profession, or position may be used to

significantly facilitate the commission of a drug offense. Additionally, an enhancement under

§3B1.3 ordinarily would apply in a case in which the defendant used his or her position as a

coach to influence an athlete to use an anabolic steroid.

Note, however, that if an adjustment from subsection (b)(23)(C) applies, do not apply §3B1.3

(Abuse of Position of Trust or Use of Special Skill).

* * *

18. If the offense involved importation of amphetamine or methamphetamine, and an adjustment from

subsection (b)(23) applies, do not apply subsection (b)(45).

19. Hazardous or Toxic Substances.—Subsection (b)(1013)(A) applies if the conduct for which the

defendant is accountable under §1B1.3 (Relevant Conduct) involved any discharge, emission,

-21-
release, transportation, treatment, storage, or disposal violation covered by the Resource

Conservation and Recovery Act, 42 U.S.C. § 6928(d); the Federal Water Pollution Control Act,

33 U.S.C. § 1319(c); the Comprehensive Environmental Response, Compensation, and Liability

Act, 42 U.S.C. § 9603(b); or 49 U.S.C. § 5124 (relating to violations of laws and regulations

enforced by the Department of Transportation with respect to the transportation of hazardous

material). In some cases, the enhancement under subsection (b)(1013)(A) may not account

adequately for the seriousness of the environmental harm or other threat to public health or

safety (including the health or safety of law enforcement and cleanup personnel). In such cases,

an upward departure may be warranted. Additionally, in determining the amount of restitution

under §5E1.1 (Restitution) and in fashioning appropriate conditions of probation and

supervision under §§5B1.3 (Conditions of Probation) and 5D1.3 (Conditions of Supervised

Release), respectively, any costs of environmental cleanup and harm to individuals or property

shall be considered by the court in cases involving the manufacture of amphetamine or

methamphetamine and should be considered by the court in cases involving the manufacture of a

controlled substance other than amphetamine or methamphetamine. See 21 U.S.C. § 853(q)

(mandatory restitution for cleanup costs relating to the manufacture of amphetamine and

methamphetamine).

20. Substantial Risk of Harm Associated with the Manufacture of Amphetamine and

Methamphetamine.—

(A) Factors to Consider.—In determining, for purposes of subsection (b)(1013)(C)(ii) or (D),

whether the offense created a substantial risk of harm to human life or the environment,

the court shall include consideration of the following factors:

* * *

(B) Definitions.—For purposes of subsection (b)(1013)(D):

* * *

21. Applicability of Subsection (b)(1116).—The applicability of subsection (b)(1116) shall be

determined without regard to whether the defendant was convicted of an offense that subjects the

defendant to a mandatory minimum term of imprisonment. Section §5C1.2(b), which provides a

minimum offense level of level 17, is not pertinent to the determination of whether subsection

(b)(1116) applies.

* * *

23. Application of Subsection (b)(67).—For purposes of subsection (b)(67), "mass-marketing by

means of an interactive computer service" means the solicitation, by means of an interactive

computer service, of a large number of persons to induce those persons to purchase a controlled

substance. For example, subsection (b)(67) would apply to a defendant who operated a web site

to promote the sale of Gamma-hydroxybutyric Acid (GHB) but would not apply to coconspirators

-22-
who use an interactive computer service only to communicate with one another in furtherance of

the offense. "Interactive computer service", for purposes of subsection (b)(67) and this note, has

the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. §

230(f)(2)).

* * *

25. Application of Subsection (b)(78).—For purposes of subsection (b)(78), "masking agent" means a

substance that, when taken before, after, or in conjunction with an anabolic steroid, prevents the

detection of the anabolic steroid in an individual’s body.

26. Application of Subsection (b)(89).—For purposes of subsection (b)(89), "athlete" means an

individual who participates in an athletic activity conducted by (i) an intercollegiate athletic 

association or interscholastic athletic association; (ii) a professional athletic association; or (iii)

an amateur athletic organization. 

* * *

Background: 

* * *

Subsection (b)(2) implements the directive to the Commission in section 5 of Public Law

111–220.

Specific Offense CharacteristicSubsection (b)(23) is derived from Section 6453 of the Anti-Drug

Abuse Act of 1988.

* * *

Subsection (b)(11) implements the directive to the Commission in section 6(1) of Public Law

111–220.

Subsection (b)(12) implements the directive to the Commission in section 6(2) of Public Law

111–220.

Subsection (b)(1013)(A) implements the instruction to the Commission in section 303 of Public

Law 103–237.

Subsections (b)(1013)(C)(ii) and (D) implement, in a broader form, the instruction to the

Commission in section 102 of Public Law 106–310.

Subsection (b)(14) implements the directive to the Commission in section 6(1) of Public Law

-23-
111–220.

Subsection (b)(15) implements the directive to the Commission in section 7(2) of Public Law

111–220.

* * *

§2D1.14. Narco-Terrorism

(a) Base Offense Level:

(1) The offense level from §2D1.1 (Unlawful Manufacturing, Importing,

Exporting, or Trafficking (Including Possession with Intent to Commit

These Offenses); Attempt or Conspiracy) applicable to the underlying

offense, except that §2D1.1(a)(5)(A), (a)(5)(B), and (b)(1116) shall not

apply.

* * *

Issues for Comment:

1. In the proposed new violence enhancement in subsection (b)(2) of §2D1.1, should the Commission

provide a single level of enhancement for any conduct covered by the violence enhancement, or should

the Commission distinguish among the different categories of conduct (use of violence; credible threat to

use violence; directing others to use violence) by assigning different levels of enhancement to each?

2. The proposed amendment would amend Application Note 3 to §2D1.1 to provide that the

enhancements for weapon possession in subsection (b)(1) and violence in subsection (b)(2) are to be

applied cumulatively. Should the Commission instead provide that the enhancements are not to be

applied cumulatively?

3. The Guidelines Manual uses the term "violence" in several provisions, e.g., §5C1.2 (Limitation on

Applicability of Statutory Minimum Sentences in Certain Cases) (the "safety valve" provision), without

defining the term. Should the term "violence" be defined for purposes of the new violence enhancement in

subsection (b)(2)? If so, what should the definition be? How, if at all, should such a definition interact

with the other provisions in the Manual where the term is not defined?

4. The proposed new bribery enhancement in §2D1.1(b)(11) may interact with other provisions in the

Guidelines Manual, such as §3C1.1 (Obstructing or Impeding the Administration of Justice). How should

the new bribery enhancement interact with such other provisions? In particular, should they be applied

cumulatively, or should they not be applied cumulatively?

-24-
5. The proposed new enhancement in §2D1.1(b)(12) would apply if the defendant "maintained an

establishment for the manufacture or distribution of a controlled substance, as described in 21 U.S.C. §

856." Should this enhancement apply more broadly, e.g., if the defendant "committed an offense

described in 21 U.S.C. § 856"? How should this proposed new enhancement in subsection (b)(12)

interact with §2D1.8 (Renting or Managing a Drug Establishment; Attempt or Conspiracy)? In

particular, should the Commission raise the alternative base offense level 26 in §2D1.8 to [28][30]?

6. As an alternative to establishing new specific offense characteristics at subsections (b)(14) and (15) of

§2D1.1, should the Commission instead implement these directives in Chapter Three? In particular,

should the Commission amend §§3B1.1 and 3B1.2, or establish new Chapter Three guidelines, to provide

the adjustments required by the directives?

7. For the proposed new specific offense characteristic in §2D1.1(b)(14), should the Commission

distinguish among the different factors described by the directive (e.g., the factors set forth in

subparagraphs (A) through (E) of the proposed new §2D1.1(b)(14)) by assigning different levels to each? 

For example, should the most egregious factor be assigned an adjustment of [6] levels, and other factors

assigned adjustments of [4] or [2] levels? If more than one factor is present, should that have a

cumulative effect, warranting a higher total adjustment for that defendant? As an alternative, should the

Commission provide an upward departure provision for cases in which more than one factor is present?

8. The proposed new specific offense characteristic in §2D1.1(b)(14) may interact with other provisions

in the Guidelines Manual, such as §2D1.2 (Drug Offenses Occurring Near Protected Locations or

Involving Underage or Pregnant Individuals; Attempt or Conspiracy), §3B1.4 (Using a Minor to Commit

a Crime), §3C1.1 (Obstructing or Impeding the Administration of Justice), and §4B1.3 (Criminal

Livelihood). How should the new specific offense characteristic in subsection (b)(14) interact with such

other provisions? In particular, should they be applied cumulatively, or should they not be applied

cumulatively?

9. The proposed new specific offense characteristic in §2D1.1(b)(14) and the proposed new specific

offense characteristics in §2D1.1 for bribery (see Part C of this proposed amendment) and maintenance

of a drug establishment (see Part D of this proposed amendment) all respond to section 6 of the Fair

Sentencing Act of 2010. How should these provisions interact with each other? In particular, should

they be applied cumulatively, or should they not be applied cumulatively?

10. This part of the proposed amendment establishes several new specific offense characteristics in

§2D1.1. What, if any, changes should the Commission make to other Chapter Two offense guidelines

involving drug trafficking to ensure consistency and proportionality? Many such guidelines refer to

§2D1.1 in determining the offense level, but not in all cases. For example, if the base offense level is

determined under subsection (a)(3) or (a)(4) of §2D1.2 (Drug Offenses Occurring Near Protected

Locations or Involving Underage or Pregnant Individuals; Attempt or Conspiracy), or under subsection

(a)(2) of §2D1.5 (Continuing Criminal Enterprise; Attempt or Conspiracy), or under §2D1.11

(Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy),

the new specific offense characteristics would not apply. Should the Commission establish similar

specific offense characteristics in §2D1.2, §2D1.5, and §2D1.11?

11. What other changes, if any, should the Commission make to the Guidelines Manual under the

-25-
emergency authority provided by section 8 of the Act? 

-26-
(D) Maximum Base Offense Level for Minimal Role ("Minimal Role Cap")

Synopsis of Proposed Amendment: This part of the proposed amendment responds to section 7(1) of

the Act, which contains a directive to the Commission to "review and amend the Federal sentencing

guidelines and policy statements to ensure that . . . if the defendant is subject to a minimal role

adjustment under the guidelines, the base offense level for the defendant based solely on drug quantity

shall not exceed level 32."

This part of the proposed amendment implements the directive by adding a new sentence to the end of

§2D1.1(a)(5) (the so-called "mitigating role cap"), to reflect the "minimal role cap" of level 32 required

by the directive.

Proposed Amendment:

§2D1.1. Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including

Possession with Intent to Commit These Offenses); Attempt or Conspiracy 

(a) Base Offense Level (Apply the greatest):

* * *

(5) the offense level specified in the Drug Quantity Table set forth in

subsection (c), except that if (A) the defendant receives an adjustment

under §3B1.2 (Mitigating Role); and (B) the base offense level under

subsection (c) is (i) level 32, decrease by 2 levels; (ii) level 34 or level

36, decrease by 3 levels; or (iii) level 38, decrease by 4 levels. If the

resulting offense level is greater than level 32 and the defendant receives

an adjustment under subsection (a) of §3B1.2, decrease to level 32.

* * *

-27-
EXHIBIT C

PROPOSED AMENDMENT: TECHNICAL AMENDMENT

Synopsis of Proposed Amendment: This proposed amendment makes certain technical and conforming

changes to commentary in the Guidelines Manual.

First, the proposed amendment makes certain technical and conforming changes in connection with the

amendments that the Commission submitted to Congress on April 29, 2010. See 75 Fed. Reg. 27388 (May

14, 2010). Those conforming changes are as follows:

(1) Amendment 8 expanded the scope of §2B1.5 (Theft of, Damage to, or Destruction of,

Cultural Heritage Resources; Unlawful Sale, Purchase, Exchange, Transportation, or

Receipt of Cultural Heritage Resources) to cover not only cultural heritage resources, but

also paleontological resources. To reflect this expanded scope, conforming changes are

made to §2B1.1 (Theft, Property Destruction, and Fraud), Application Notes 1 and 3.

(2) Amendment 9 made a technical change to §2K2.1 (Unlawful Receipt, Possession, or

Transportation of Firearms or Ammunition), Application Note 10, to correct an inaccurate

citation. To address a parallel inaccurate citation in §2K1.3 (Unlawful Receipt, Possession,

or Transportation of Explosive Materials; Prohibited Transactions Involving Explosive

Materials), Application Note 9, a parallel technical change is made there.

(3) Amendment 5 eliminated the use of "recency" points in calculating the criminal history

score. A conforming change is made in §2P1.1 (Escape, Instigating or Assisting Escape),

Application Note 5, to delete an obsolete reference to "recency."

Second, the proposed amendment makes certain other stylistic and clerical changes to commentary in the

Guidelines Manual. It amends §3A1.2 (Official Victim), Application Note 3, to provide an accurate reference

to an enhancement in the robbery guideline. It amends §3C1.1 (Obstructing or Impeding the Administration

of Justice), Application Note 4, to replace the obsolete term "magistrate" with the term "magistrate judge." 

It amends §5E1.5 (Costs of Prosecution), Background, to correct a typographical error in a statutory

citation. It amends §7B1.4 (Term of Imprisonment), Application Note 2, and §8A1.2 (Application

Instructions - Organizations), Application Note 2, to provide accurate references to guideline titles. Finally,

it makes certain other stylistic changes to promote stylistic consistency and gender neutrality.

Proposed Amendment:

§2B1.1. Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen

Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses

Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer

Obligations of the United States

-28-
* * *

Commentary

* * *

Application Notes:

1. Definitions.—For purposes of this guideline:

"Cultural heritage resource" has the meaning given that term in Application Note 1 of the

Commentary to §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).

* * *

3. * * *

(vii) Value of Cultural Heritage Resources or Paleontological Resources.—In a case

involving a cultural heritage resource or paleontological resource, loss attributable

to that cultural heritage resource shall be determined in accordance with the rules

for determining the "value of the cultural heritage resource" set forth in Application

Note 2 of the Commentary to §2B1.5.

* * *

§2K1.3. Unlawful Receipt, Possession, or Transportation of Explosive Materials; Prohibited

Transactions Involving Explosive Materials

* * *

Commentary

* * *

Application Notes:

* * *

9. For purposes of applying subsection (a)(1) or (2), use only those felony convictions that receive

-29-
criminal history points under §4A1.1(a), (b), or (c). In addition, for purposes of applying subsection

(a)(1), use only those felony convictions that are counted separately under §4A1.1(a), (b), or (c). See

§4A1.2(a)(2); §4A1.2, comment. (n.3).

* * *

§2P1.1. Escape, Instigating or Assisting Escape

* * *

Commentary

Application Notes:

* * *

5. Criminal history points under Chapter Four, Part A (Criminal History) are to be determined

independently of the application of this guideline. For example, in the case of a defendant serving

a one-year sentence of imprisonment at the time of the escape, criminal history points from §4A1.1(b)

(for the sentence being served at the time of the escape),and §4A1.1(d) (custody status), and

§4A1.1(e) (recency) would be applicable.

* * *

§3A1.2. Official Victim

* * *

Commentary

Application Notes:

* * *

3. Application of Subsections (a) and (b).—"Motivated by such status", for purposes of subsections (a)

and (b), means that the offense of conviction was motivated by the fact that the victim was a

government officer or employee, or a member of the immediate family thereof. This adjustment

would not apply, for example, where both the defendant and victim were employed by the same

government agency and the offense was motivated by a personal dispute. This adjustment also would

not apply in the case of a robbery of a postal employee because the offense guideline for robbery

contains an enhancement (§2B3.1(a)(b)(1)) that takes such conduct into account.

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* * *

§3C1.1. Obstructing or Impeding the Administration of Justice

* * *

Commentary

Application Notes:

* * *

4. Examples of Covered Conduct.—The following is a non-exhaustive list of examples of the types of

conduct to which this adjustment applies:

* * *

(F) providing materially false information to a judge or magistrate judge; 

5. * * *

(B) making false statements, not under oath, to law enforcement officers, unless Application

Note 4(gG) above applies;

* * *

9. Accountability for §1B1.3(a)(1)(A) Conduct.—Under this section, the defendant is accountable for

histhe defendant’s own conduct and for conduct that hethe defendant aided or abetted, counseled,

commanded, induced, procured, or willfully caused.

* * *

§3C1.2. Reckless Endangerment During Flight

* * *

Commentary

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Application Notes:

* * *

5. Under this section, the defendant is accountable for histhe defendant’s own conduct and for conduct

that hethe defendant aided or abetted, counseled, commanded, induced, procured, or willfully

caused.

* * *

§3E1.1. Acceptance of Responsibility

* * *

Commentary

Application Notes:

* * *

3. Entry of a plea of guilty prior to the commencement of trial combined with truthfully admitting the

conduct comprising the offense of conviction, and truthfully admitting or not falsely denying any

additional relevant conduct for which he is accountable under §1B1.3 (Relevant Conduct) (see

Application Note 1(aA)), will constitute significant evidence of acceptance of responsibility for the

purposes of subsection (a). However, this evidence may be outweighed by conduct of the defendant

that is inconsistent with such acceptance of responsibility. A defendant who enters a guilty plea is

not entitled to an adjustment under this section as a matter of right.

* * *

§4B1.3. Criminal Livelihood

* * *

Commentary

Application Notes:

* * *

2. "Engaged in as a livelihood" means that (1A) the defendant derived income from the pattern of

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criminal conduct that in any twelve-month period exceeded 2,000 times the then existing hourly

minimum wage under federal law; and (2B) the totality of circumstances shows that such criminal

conduct was the defendant’s primary occupation in that twelve-month period (e.g., the defendant

engaged in criminal conduct rather than regular, legitimate employment; or the defendant’s

legitimate employment was merely a front for his the defendant’s criminal conduct).

* * *

Background: Section 4B1.3 implements 28 U.S.C. § 994(i)(2), which directs the Commission to ensure that

the guidelines specify a "substantial term of imprisonment" for a defendant who committed an offense as part

of a pattern of criminal conduct from which he the defendant derived a substantial portion of histhe

defendant’s income.

* * *

§5B1.1. Imposition of a Term of Probation

* * *

Commentary

Application Notes:

1. Except where prohibited by statute or by the guideline applicable to the offense in Chapter Two, the

guidelines authorize, but do not require, a sentence of probation in the following circumstances:

* * *

(aA) Where the applicable guideline range is in Zone A of the Sentencing Table (i.e., the minimum

term of imprisonment specified in the applicable guideline range is zero months). In such

cases, a condition requiring a period of community confinement, home detention, or

intermittent confinement may be imposed but is not required.

(bB) Where the applicable guideline range is in Zone B of the Sentencing Table (i.e., the minimum

term of imprisonment specified in the applicable guideline range is at least one but not more

than nine months). In such cases, the court may impose probation only if it imposes a

condition or combination of conditions requiring a period of community confinement, home

detention, or intermittent confinement sufficient to satisfy the minimum term of imprisonment

specified in the guideline range. For example, where the offense level is 7 and the criminal

history category is II, the guideline range from the Sentencing Table is 2-8 months. In such

a case, the court may impose a sentence of probation only if it imposes a condition or

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conditions requiring at least two months of community confinement, home detention, or

intermittent confinement, or a combination of community confinement, home detention, and

intermittent confinement totaling at least two months.

 * * *

§5D1.1. Imposition of a Term of Supervised Release

* * *

Commentary

Application Notes:

1. Under subsection (a), the court is required to impose a term of supervised release to follow

imprisonment if a sentence of imprisonment of more than one year is imposed or if a term of

supervised release is required by a specific statute. The court may depart from this guideline and

not impose a term of supervised release if it determines that supervised release is neither required

by statute nor required for any of the following reasons: (1A) to protect the public welfare; (2B) to

enforce a financial condition; (3C) to provide drug or alcohol treatment or testing; (4D) to assist the

reintegration of the defendant into the community; or (5E) to accomplish any other sentencing

purpose authorized by statute.

* * *

§5E1.5. Costs of Prosecution (Policy Statement)

* * *

Commentary

Application Notes:

* * *

Background: Various statutes require the court to impose the costs of prosecution: 7 U.S.C. § 13 (larceny

or embezzlement in connection with commodity exchanges); 21 U.S.C. § 844 (simple possession of controlled

substances) (unless the court finds that the defendant lacks the ability to pay); 26 U.S.C. § 7201 (attempt to

defeat or evade income tax); 26 U.S.C. § 7202 (willful failure to collect or pay tax); 26 U.S.C. § 7203 (willful

failure to file income tax return, supply information, or pay tax); 26 U.S.C. § 7206 (fraud and false

statements); 26 U.S.C. § 7210 (failure to obey summons); 26 U.S.C. § 7213 (unauthorized disclosure of

information); 26 U.S.C. § 7215 (offenses with respect to collected taxes); 26 U.S.C. § 7216 (disclosure or

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use of information by preparers of returns); 26 U.S.C. § 7232 (failure to register or false statement by

gasoline manufacturer or producer); 42 U.S.C. § 130220c-9 (improper FOIA disclosure); 43 U.S.C. § 942-6

(rights of way for Alaskan wagon roads).

* * *

§5G1.2. Sentencing on Multiple Counts of Conviction

* * *

Commentary

Application Notes:

1. * * *

This section applies to multiple counts of conviction (1A) contained in the same indictment or

information, or (2B) contained in different indictments or informations for which sentences are to

be imposed at the same time or in a consolidated proceeding.

* * *

§5G1.3. Imposition of a Sentence on a Defendant Subject to an Undischarged Term of

Imprisonment

* * *

Commentary

Application Notes:

* * *

2. Application of Subsection (b).— 

* * *

(C) Imposition of Sentence.—If subsection (b) applies, and the court adjusts the sentence for a

period of time already served, the court should note on the JudgementJudgment in a

Criminal Case Order (i) the applicable subsection (e.g., §5G1.3(b)); (ii) the amount of time

by which the sentence is being adjusted; (iii) the undischarged term of imprisonment for

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which the adjustment is being given; and (iv) that the sentence imposed is a sentence

reduction pursuant to §5G1.3(b) for a period of imprisonment that will not be credited by

the Bureau of Prisons.

* * *

§7B1.4. Term of Imprisonment (Policy Statement)

* * *

Commentary

Application Notes:

* * *

2. Departure from the applicable range of imprisonment in the Revocation Table may be warranted

when the court departed from the applicable range for reasons set forth in §4A1.3 (Adequacy

Departures Based on Inadequacy of Criminal History Category) in originally imposing the sentence

that resulted in supervision. Additionally, an upward departure may be warranted when a defendant,

subsequent to the federal sentence resulting in supervision, has been sentenced for an offense that

is not the basis of the violation proceeding.

* * *

3. In the case of a Grade C violation that is associated with a high risk of new felonious conduct (e.g.,

a defendant, under supervision for conviction of criminal sexual abuse, violates the condition that

hethe defendant not associate with children by loitering near a schoolyard), an upward departure

may be warranted.

* * *

§8A1.2. Application Instructions - Organizations

* * *

Commentary

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Application Notes:

* * *

2. The definitions in the Commentary to §1B1.1 (Application Instructions) and the guidelines and

commentary in §§1B1.2 through 1B1.8 apply to determinations under this chapter unless otherwise

specified. The adjustments in Chapter Three, Parts A (Victim-Related Adjustments), B (Role in the

Offense), C (Obstruction), and E (Acceptance of Responsibility) do not apply. The provisions of

Chapter Six (Sentencing Procedures, and Plea Agreements, and Crime Victims’ Rights) apply to

proceedings in which the defendant is an organization. Guidelines and policy statements not

referenced in this chapter, directly or indirectly, do not apply when the defendant is an organization;

e.g., the policy statements in Chapter Seven (Violations of Probation and Supervised Release) do not

apply to organizations.

3. The following are definitions of terms used frequently in this chapter:

(aA) * * *

(bB) * * *

(cC) * * *

(dD) * * *

(eE) * * *

(fF) * * *

(gG) * * *

(hH) * * *

(iI) * * * 

(jJ) * * *

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