United States Sentencing Commission Public Meeting Minutes

April 6, 2011

Chair Patti B. Saris called the meeting to order at 2:02 p.m. in the Commissioners’ Conference

Room.

The following Commissioners were present:

! Judge Patti B. Saris, Chair

! William B. Carr, Jr., Vice Chair

! Ketanji B. Jackson, Vice Chair

! Dabney L. Friedrich, Commissioner

! Judge Ricardo H. Hinojosa, Commissioner 

! Judge 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:

! Kenneth Cohen, General Counsel

The Chair called for a motion to adopt the January 11, 2011, public meeting minutes. 

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

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

The Chair called on Mr. Cohen to inform the Commission on possible votes to amend the

sentencing guidelines.

Mr. Cohen stated that the first proposed amendment, attached hereto as Exhibit A, makes certain

technical and conforming changes in connection with the amendments that the Commission

submitted to Congress on April 29, 2010. The proposed amendment also makes technical

changes to promote stylistic consistency throughout the Guideline Manual. 

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

would be in order with a November 1, 2011 effective date, and with staff being authorized to

make technical and conforming changes if needed.

Chair Saris 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 motion. Hearing none, the Chair called for a vote. The motion was

adopted with at least four commissioners voting in favor of the motion.

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Mr. Cohen stated that the next proposed amendment, attached hereto as Exhibit B, responds to

miscellaneous issues arising from legislation recently enacted and other miscellaneous guideline

application issues. Part A of the proposed amendment updates the policy statement at §6B1.2

(Standards for Acceptance of Plea Agreements) in light of United States v. Booker, 543 U.S. 220

(2005), and the Federal Judiciary Administrative Improvements Act of 2010, Pub. L. No.

111–174. Part B of the proposed amendment responds to the Coast Guard Authorization Act of

2010, Pub. L. No. 111–281, which provided statutory sentencing enhancements for certain

offenses under 18 U.S.C. § 2237 (Criminal sanctions for failure to heave to, obstruction of

boarding, or providing false information) and created a new criminal offense at 33 U.S.C. § 3851

(Criminal enforcement [of the prohibition against the use of organotin-compounds in a vessel

antifouling system]). The proposed amendment references in Appendix A (Statutory Index) the

section 2237 provisions to the Chapter Two offense guidelines most analogous to the conduct

forming the basis for the statutory sentencing enhancements and references the new criminal

offense at section 3851 to §2Q1.2 (Mishandling of Hazardous or Toxic Substances or Pesticides;

Recordkeeping, Tampering, and Falsification; Unlawfully Transporting Hazardous Materials in

Commerce).

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

would be in order with a November 1, 2011 effective date, and with staff being authorized to

make technical and conforming changes if needed.

Chair Saris called for a motion as suggested by Mr. Cohen. Commissioner Howell made a

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

Chair called for discussion on the motion. Hearing none, the Chair called for a vote. The motion

was adopted with at least four commissioners voting in favor of the motion.

Mr. Cohen stated that the next proposed amendment, attached hereto as Exhibit C, addresses a

circuit conflict on whether a defendant convicted of an offense involving the willful failure to

pay court-ordered child support (e.g., a violation of 18 U.S.C. § 228) and sentenced under

§2B1.1 (Theft, Property Destruction, and Fraud) should receive the specific offense characteristic

in §2B1.1(b)(8)(C) for committing “a violation of any prior, specific judicial or administrative

order, injunction, decree, or process not addressed elsewhere in the guidelines.” The proposed

amendment resolves the conflict by amending the commentary to §2J1.1 (Contempt) to specify

that, in a case involving a violation of section 228, §2B1.1(b)(8)(C) does not apply. 

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

would be in order with a November 1, 2011 effective date, and with staff being authorized to

make technical and conforming changes if needed.

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

to promulgate the proposed amendment, with Vice Chair Carr seconding. The Chair called for

discussion on the motion. Hearing none, the Chair called for a vote. The motion was adopted

with at least four commissioners voting in favor of the motion.

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Mr. Cohen stated that the next proposed amendment, attached hereto as Exhibit D, amends

§2L1.2 (Unlawfully Entering or Remaining in the United States) to provide a limitation on the

use of certain convictions under subsections (b)(1)(A) and (B). Specifically, such a conviction

would receive the 16- or 12-level enhancement, as applicable, if the conviction receives criminal

history points under Chapter Four (Criminal History and Criminal Livelihood), and an alternative

enhancement of 12 or 8 levels, respectively, if it does not. The proposed amendment also

provides an upward departure provision for cases in which this 12- or 8-level enhancement does

not adequately reflect the extent or seriousness of the conduct underlying the prior conviction. 

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

would be in order with a November 1, 2011 effective date, and with staff being authorized to

make technical and conforming changes if needed.

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

promulgate the proposed amendment, with Commissioner Howell seconding. The Chair called

for discussion on the motion. 

Commissioner Hinojosa stated that the intent of the proposed amendment is to conform treatment

of certain prior convictions under §2L1.2 with how they are treated under other guidelines, such

as §4B1.1 (Career Offender) and guidelines with firearm enhancements. Commissioner

Friedrich stated that while she did not support the amendment as originally published, she

supports the revised proposed amendment as it addresses some of her concerns. She also

reiterated her belief that the Commission should address issues arising under §2L1.2 in a

comprehensive, rather than a piecemeal, fashion.

Hearing no further discussion, the Chair called for a vote. The motion was adopted with at least

four commissioners voting in favor of the motion.

Mr. Cohen advised the commissioners that the amendment to §2L2.1 would reduce the guideline

range for certain offenders previously sentenced under the guideline. Therefore, pursuant to Rule

2.2 of the Commission’s Rules of Practice and Procedure, Mr. Cohen asked whether there was a

motion to instruct staff to prepare a retroactivity impact analysis for the amendment. Chair Saris

called for a motion. Hearing none, the Chair noted that the matter failed for lack of a motion and

called for any discussion on the matter. 

Commission Howell stated that it is important for the Commission to record the reasons why it

declines to have staff prepare a retroactivity impact analysis. Although the magnitude of the

change in the guideline range to §2L1.2 may be significant for affected defendants,

Commissioner Howell believes that the factors under §1B1.10 (Reduction in Term of

Imprisonment as a Result of Amended Guideline Range (Policy Statement)) for retroactive

application of the amendment are not met for two reasons. 

First, retroactive application of the amendment would be extremely difficult as courts must

review details in old cases sentenced under §2L1.2 (b)(1)(A) to identify which illegal re-entry

cases had sentence enhancements based upon stale convictions that were not counted under the

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Guidelines Manual’s Chapter 4 criminal history guidelines. Second, only a small number of

defendants would be potentially eligible for a reduction. Commissioner Howell noted that under

§1B1.10, where a guideline adjustment would apply to only a small number of cases, the courts

should not be burdened with retroactive application.

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

revisions to the supervised release guidelines, §5D1.1 (Imposition of a Term of Supervised

Release) and §5D1.2 (Term of Supervised Release). First, it creates an exception in §5D1.1 to

the general rule that a term of supervised release be imposed whenever a sentence of

imprisonment of more than one year is imposed, or when required by statute. The exception,

inserted as a new subsection (c) in §5D1.1, states that supervised release ordinarily should not be

imposed in a case in which supervised release is not required by statute and the defendant is a

deportable alien who likely will be deported after imprisonment. Second, the proposed

amendment lowers the minimum term of supervised release required by §5D1.2 for certain

defendants when a statute does not require a higher minimum term. Currently, §5D1.2 requires

the court to impose a term of supervised release of at least three years when the defendant is

convicted of a Class A or B felony and at least two years when the defendant is convicted of a

Class C or D felony. The proposed amendment lowers these minimum terms to two years and

one year, respectively. Additionally, the proposed amendment inserts commentary into §§5D1.1

and 5D1.2 to provide guidance on what a court should consider in deciding whether to order a

term of supervised release and, if so, how long such a term should be.

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

would be in order with a November 1, 2011 effective date, and with staff being authorized to

make technical and conforming changes if needed.

Chair Saris called for a motion as suggested by Mr. Cohen. Commissioner Howell made a

motion to promulgate the proposed amendment, with Vice Chair Carr seconding. The Chair

called for discussion on the motion. Hearing none, the Chair called for a vote. The motion was

adopted with at least four commissioners voting in favor of the motion.

Mr. Cohen stated that the next proposed amendment, attached hereto as Exhibit F, amends the

primary firearms guideline, §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms

or Ammunition; Prohibited Transactions Involving Firearms or Ammunition), to address

concerns about “straw purchasers” and firearms leaving the United States. The proposed

amendment increases penalties for straw purchasers whose offense of conviction is for making

false statements (i.e., 18 U.S.C. §§ 922(a)(6) or 924(a)(1)(A)) but who engaged in the offense

with knowledge, intent, or reason to believe that the offense would result in the transfer of the

firearm to a prohibited person. In addition, a new Application Note 15 is provided stating that, in

a case in which the defendant is convicted under any of the three straw purchaser statutes (i.e., 18

U.S.C. §§ 922(a)(6), (d), and 924(a)(1)(A)), a downward departure may be warranted if certain

specified circumstances are met. The proposed amendment also adds a new prong to the specific

offense characteristic at subsection (b)(6) which would apply a four-level enhancement, and

minimum offense level of 18, if the defendant possessed any firearm or ammunition while

leaving or attempting to leave the United States, or possessed or transferred any firearm or

ammunition with knowledge, intent, or reason to believe that it would be transported out of the

United States.

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The proposed amendment also amends the guideline for international weapons trafficking,

§2M5.2 (Exportation of Arms, Munitions, or Military Equipment or Services Without Required

Validated Export License), to provide higher penalties for certain cases involving small arms

crossing the border and more guidance on cases involving ammunition leaving the United States. 

The proposed amendment reduces the threshold number of small arms in subsection (a)(2),

which provides a base offense level of 14, from ten to two. The proposed amendment also

amends §2M5.2 to address cases in which the defendant possesses ammunition, either in an

ammunition-only case or in a case involving ammunition and small arms. Under the proposed

amendment, a defendant with ammunition would receive the alternative base offense level of 14

if the ammunition consisted of not more than 500 rounds of ammunition for small arms.

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

would be in order with a November 1, 2011 effective date, and with staff being authorized to

make technical and conforming changes if needed.

Chair Saris called for a motion as suggested by Mr. Cohen. Commissioner Howell made a

motion to promulgate the proposed amendment, with Vice Chair Carr seconding. 

Chair Saris stated that the proposed amendment increased penalties for certain firearms offenses. 

She noted that the Commission learned from the United States Attorneys along the United

States-Mexico border and others that the violence on the border is a serious national security

concern. According to Commission data, approximately one-third of straw purchaser cases in

fiscal year 2009 involved firearms crossing the border. The border and straw purchase

enhancements in the proposed amendment are intended to target and deter that conduct. Also,

the proposed amendment increases base offense levels for straw purchasers who knew that the

firearm would be transferred to a prohibited person and for offenses involving especially

dangerous weapons, such as semi-automatic firearms capable of accepting large capacity

magazines. Chair Saris thanked all stakeholders who gave comment on these issues, including

the United States Attorneys and members of the defense bar. The Chair called for additional

discussion on the motion. 

Commissioner Wroblewski thanked the Chair for guiding the Commission through the current

amendment cycle, noting that Judge Saris became Chair late in the amendment cycle. He also

thanked staff and everyone who contributed to the Commission’s deliberations. Commissioner

Wroblewski noted that the proposed amendment was considered at the request of the

Administration because violence along the border has greatly increased, and gun trafficking has

contributed significantly to that violence. He believes the proposed amendment is a measured

response to combat the violence and thanked the Commission for its responsiveness.

Hearing no further discussion, the Chair called for a vote. The motion was adopted with at least

four commissioners voting in favor of the motion.

Mr. Cohen advised the commissioners that the amendment to §2M5.2 would reduce the guideline

range for certain offenders previously sentenced under the guideline. Therefore, pursuant to Rule

2.2 of the Commission’s Rules of Practice and Procedure, Mr. Cohen asked whether there was a

motion to instruct staff to prepare a retroactivity impact analysis for the amendment. Chair Saris

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called for a motion. Hearing none, the Chair noted that the matter failed for lack of a motion and

called for any discussion on the matter. 

Commissioner Howell noted that the amendment to §2M5.2 will have the effect of reducing the

base offense level of 26 to 14 for an export offense that involved 500 rounds or less of

ammunition for non-fully automatic small arms. She believes this change is consistent with and

proportional to the other change made to §2M5.2, specifically limiting the base offense level of

14 to offenses involving only the export of two or fewer small arms, instead of ten or fewer small

arms. 

Commissioner Howell stated that a retroactivity impact analysis was not appropriate because the

factors under §1B1.10 are not met. While acknowledging that the magnitude of the change in the

guideline range may be significant, Commissioner Howell observed that the purpose of the

amendment is to ensure consistency with the other part of this amendment, not to correct a real or

perceived unfairness in the guidelines. 

Commissioner Howell also observed that the number of cases involved is very small. For

example, only five cases in fiscal year 2010 involved 500 rounds or fewer of ammunition that

might be eligible for a reduction, and §1B1.10 indicates that where a guideline adjustment would

apply to only a small number of cases, the courts should not be burdened with retroactive

application.

Mr. Cohen stated that the next proposed amendment, attached hereto as Exhibit G, amends

§2B1.1 (Theft, Property Destruction, and Fraud) in response to a directive to the Commission in

the Patient Protection and Affordable Care Act, Pub. L. No. 111–148 (the “Patient Protection

Act”). The proposed amendment also responds to new offenses created by the Patient Protection

Act and by the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No.

111–203 (the “Dodd-Frank Act”). The proposed amendment implements the directive in the

Patient Protection Act by adding two provisions to §2B1.1, both of which apply to cases in which

“the defendant was convicted of a Federal health care offense involving a Government health

care program”. The first provision is a tiered enhancement that applies in such cases if the loss is

more than $1,000,000, while the second provision is a new special rule in Application Note 3(F)

for determining intended loss in a case in which the defendant is convicted of a Federal health

care offense involving a Government health care program. 

In addition, the proposed amendment responds to certain new offenses created by the Patient

Protection Act and Dodd-Frank Act. First, the proposed amendment responds to the new offense

created by the Dodd-Frank Act at 12 U.S.C. § 5382 by referencing it in Appendix A (Statutory

Index) to §2H3.1 (Interception of Communications; Eavesdropping; Disclosure of Certain

Private or Protected Information). Second, the proposed amendment responds to the new offense

created by the Dodd-Frank Act at 15 U.S.C. § 78jjj(d) by referencing it, along with two other

offenses at section 78jjj(c)(1) and (c)(2) that are not currently referenced in Appendix A, to

§2B1.1. Third, the proposed amendment responds to the new offense created by the Patient

Protection Act at 29 U.S.C. § 1149 by referencing it in Appendix A to §2B1.1.

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Finally, the proposed amendment amends Application Note 3(A) to §3B1.2 (Mitigating Role) to

indicate that a defendant who is accountable under §1B1.3 (Relevant Conduct) for a loss amount

under §2B1.1 that greatly exceeds the defendant’s personal gain from a fraud offense and who

had limited knowledge of the scope of the scheme is not precluded from consideration for a

mitigating role adjustment. 

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

would be in order with a November 1, 2011 effective date, and with staff being authorized to

make technical and conforming changes if needed.

Chair Saris 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 motion.

Vice Chair Jackson stated that Congress directed the Commission to include a graduated loss

table for certain health care fraud offenses and to consider certain aggravating and mitigating

factors. She noted that the Commission heard testimony and received public comment that there

are different types of health care fraud offenses and different offenders may have different levels

of culpability depending on the health care fraud scheme. Vice Chair Jackson stated that the

proposed amendment makes clear that low-level health care fraud offenders should not be

disqualified for a minor role adjustment merely by virtue of the amount of loss. She believes this

clarification is important and hopes practitioners and courts will find it useful when establishing

fair sentences for health care fraud cases.

Commissioner Wroblewski recalled that early in the Obama Administration, United States

Attorney General Eric H. Holder, Jr., and United States Department Health and Human Services

Secretary Kathleen Sebelius announced an initiative to fight health care fraud through, among

other measures, increased criminal enforcement. Commissioner Wroblewski stated that the

proposed amendment will assist with enforcement by ensuring that those who steal millions of

dollars from Medicare and Medicaid will be held accountable.

Hearing no further discussion, the Chair called for a vote. The motion was adopted with at least

four commissioners voting in favor of the motion.

Mr. Cohen stated that the next proposed amendment, attached hereto as Exhibit H, deletes two

sentences from the commentary to §3B1.2 (Mitigating Role). Specifically, in Application Note

3(C), the proposed amendment deletes the sentence, “As with any other factual issue, the court,

in weighing the totality of the circumstances, is not required to find, based solely on the

defendant’s bare assertion, that such a role adjustment is warranted,” while retaining the “totality

of the circumstances” approach by incorporating it into the preceding sentence. In Application

Note 4, it deletes the sentence, “It is intended that the downward adjustment for a minimal

participant will be used infrequently.”

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

would be in order with a November 1, 2011 effective date, and with staff being authorized to

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make technical and conforming changes if needed.

Chair Saris called for a motion as suggested by Mr. Cohen. Commissioner Hinojosa made a

motion to promulgate the proposed amendment, with Vice Chair Jackson seconding. The Chair

called for discussion on the motion. Hearing none, the Chair called for a vote. The motion was

adopted with at least four commissioners voting in favor of the motion.

Mr. Cohen stated that the next proposed amendment, attached hereto as Exhibit I, amends the

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

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

response to the Secure and Responsible Drug Disposal Act of 2010, Pub. L. 111–273. Section 3

of the Act amended 21 U.S.C. § 822 to authorize certain persons in possession of controlled

substances (e.g., ultimate users and long-term care facilities) to deliver the controlled substances

for the purpose of disposal, and section 4 directed the Commission to “review and, if appropriate,

amend” the guidelines to ensure that the guidelines provide appropriate penalties. The proposed

amendment implements the directive by amending Application Note 8 to §2D1.1 to provide that

an adjustment under §3B1.3 (Abuse of Position of Trust or Use of Special Skill) ordinarily would

apply in a case in which the defendant is convicted of a drug offense resulting from the

authorization of the defendant to receive scheduled substances from an ultimate user or long-term

care facility.

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

would be in order with a November 1, 2011 effective date, and with staff being authorized to

make technical and conforming changes if needed.

Chair Saris called for a motion as suggested by Mr. Cohen. Commissioner Howell made a

motion to promulgate the proposed amendment, with Vice Chair Carr seconding. The Chair

called for discussion on the motion. Hearing none, the Chair called for a vote. The motion was

adopted with at least four commissioners voting in favor of the motion.

Mr. Cohen stated that the next proposed amendment, attached hereto as Exhibit J, is a

multi-part proposed amendment that, with one exception, re-promulgates as permanent the

temporary emergency amendment the Commission promulgated in October 2010 in response to

the Fair Sentencing Act of 2010, Pub. L. 111–220 (the “Act”). The exception, at Application

Note 28, clarifies that the enhancement relating to maintaining a residence for the purpose of

distribution or manufacture of a controlled substance covers the storage of controlled substances

done for the purpose of such distribution or manufacture.

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

would be in order with a November 1, 2011 effective date, and with staff being authorized to

make technical and conforming changes if needed, and a wavier or Rule 4.1 of the Commission’s

Rules of Practice and Procedures, which generally requires the Commission to consider the issue

of retroactivity at the time of the promulgation of a proposed amendment.

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

promulgate the proposed amendment, with Commissioner Howell seconding. 

Chair Saris stated that for 15 years, the Commission has advocated lowering the mandatory

minimum penalties for crack cocaine offenses because they were unjust and unfair. Four years

ago, it lowered the guideline ranges for such offenses to signal this position. In last years’s

survey of federal district court judges, 76 percent of judges thought crack penalties were too high. 

She noted that in her district of Massachusetts, low-level street dealers make up 40 percent of her

case load compared to the national average case load of about 22 percent of cases involving

crack. As a former state court judge where crack and powder cocaine were punished at a drug

quantity ratio of 1:1, the Chair believed the 100:1 drug quantity ratio of crack to powder cocaine

in the federal system was grossly disproportionate. Chair Saris expressed great pride in being

Chair of the Commission that took this courageous stand and extended the Commission’s thanks

to President Obama, the leaders in Congress, especially Senators Durbin and Sessions, and

Representatives Scott and Conyers, and others, for taking up this important issue and reaching a

compromise. 

Chair Saris noted Congress reached its decision in a principled way. The Commission’s 2007

crack cocaine report provided meaningful information that Congress used to reach its decision,

including defining “drug wholesaler” as an offender who sells more than retail user-level

quantities, that is, one who distributes more than one ounce in a single transaction or possesses

two ounces or more on a single occasion. Based in part on this information, Congress based the

new five-year mandatory minimum drug quantity at 28 grams or one ounce. 

Chair Saris stated that the issue of how to amend the guidelines to incorporate the new penalties

was one of the toughest she has faced as a new Chair, including how to set the appropriate

guideline levels for the new mandatory minimums. She observed that the guidelines sentencing

table, which was established 25 years ago, and the Drug Quantity Table were designed to create

proportionality across drug types. Chair Saris noted, for example, that the five-year mandatory

minimum penalty for powder cocaine, methamphetamine, and all drugs, are set at level 26. 

Thus, the difficult question for the Commission was whether to set the mandatory minimum

penalty for crack at that level in order to maintain proportionality among all drug types, even

though the Commission previously lowered the guidelines penalties for crack alone as an

exception to mitigate the harshness of the 100:1 ratio. While it was a close question, Chair Saris

believes that on balance the Commission should treat crack the same as other drugs as it best

reflects the Commission’s commitment to both the proportionality between crack and powder

cocaine set by Congress and to proportionality across drug types. 

In arriving at this decision, Chair Saris reported that the Commission examined very carefully the

extensive comments received from members of Congress, including comments from Senators

Leahy, Sessions, and Durbin, and Representatives Conyers, Smith, Scott, and Sensenbrenner, and

their congressional colleagues, including Representatives Gallegly, Lungren, Marino, Forbes,

Gowdy, Ross, Clyburn, Watt, Waters, Jackson Lee, Rangel, Pierluisi, Johnson, Lofgren, and

Chu. The Chair noted that it was evident that many people feel passionately about this issue, and

she thanked the Judicial Conference of the United States’s Committee on Criminal Law, the

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Federal Public Defenders, the Department of Justice, the Commission’s advisory groups, the

American Bar Association, the American Civil Liberties Union, Families Against Mandatory

Minimum, along with others, and acknowledged the 15,000 letters received from the public. 

Chair Saris reported that during the Commission’s deliberations staff performed an analysis of

fiscal year 2010 data, and estimates that approximately two-thirds of crack cocaine offenders

previously sentenced that year would have benefitted from the proposed amendment. The Chair

observed that these offenders’ sentences would reflect an average decrease from 106 to 79

months prospectively. At the lower levels the deceases are more dramatic. Chair Saris stated

that under the proposed amendment, a defendant who sells five grams of crack and once received

a five-year sentence under the proposed amendment could receive a sentence of 27 months in the

lowest criminal history category, which does not include a reduction for acceptance of

responsibility. The Commission estimates, based on the most recent sentencing data, that crack

offenders sentenced under the proposed amendment after November 1, 2011, will receive

sentences approximately 25 percent lower on average. Chair Saris further noted that the

Commission estimates that the proposed changes may reduce the future costs of incarceration for

crack offenders in the federal prison system. 

Chair Saris stated that the debate has spurred a multi-year analysis of the drug table by the

Commission to address several important questions, such as, “Was it appropriate to set the

guideline range above the mandatory minimum?”, “Should safety valve be expanded?”, and

“Should the proposed amendment be made retroactive, and if so, how?” The Chair made clear

that illicit drugs are still a serious problem in our society and observed that she continues to see

the victims of drugs daily in her courtroom. She believes, however, that the federal criminal

justice system must be smarter about how it sentences defendants as the Bureau of Prisons

incarcerates a substantial number of drug offenders. Chair Saris suggested that less serious

offenders could be addressed in drug courts and re-entry programs. She added that she looks

forward to working with the Administration, Congress, and all the interest groups in making the

drug guidelines smarter and more effective. The Chair called for further discussion on the

motion. 

Vice Chair Jackson stated that the Guidelines Manual’s Drug Quantity Table is a scale created by

the first Commission to establish proportional sentences, not only with respect to the amount of a

drug that triggers the statutory mandatory minimums, but for every quantity of a controlled

substance. She observed that in 2007, the Commission adjusted that scale in regard to crack

cocaine alone based on its longstanding and correct conviction that there was no valid

justification for penalizing crack cocaine offenders 100 times more severely than powder cocaine

offenders. 

Vice Chair Jackson noted that the 2007 amendment, which moved crack guideline sentences out

of proportion with respect to the other drug types in the table, was specifically designed to

prompt congressional action, and Congress has now acted. She stated that as a result of the Act,

it now takes nearly six times the amount of crack cocaine to trigger a five-year statutory

mandatory minimum penalty than it did before and, moreover, under the proposed amendment,

the Commission estimates that nearly 80 percent of the non-violent, low-level crack offenders

sentenced after November 1, 2011, will have a guideline sentence that is, on average, 25 percent

lower than before. 

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Vice Chair Jackson stated that the determination that the Commission makes today regarding

where to set the quantity thresholds for the five- and ten-year mandatory minimums for crack

cocaine – at levels 26 and 32, respectively – is a decision to restore proportionality within the

guideline drug table in the wake of congressional action. As such, she believes an amended table

implicates a broader policy decision about whether the original Commission was correct to

construct the scale so that the guideline penalties are greater than the mandatory minimums for

the drug amounts that trigger the statutory minimums. In Vice Chair Jackson’s view, that policy

determination cannot be effectively addressed with respect to crack alone. 

Vice Chair Jackson observed that the Commission’s upcoming mandatory minimum report

permits a comprehensive examination of whether there is a basis for persisting with the current

relationship between the levels in guideline drug table and the statutory mandatory minimums. 

In addition to considering whether the guideline’s drug scale needs to be recalibrated, she

believes the upcoming report and the next amendment cycle provide an opportunity to address

other means of shifting the emphasis away from drug quantity, such as by expanding the safety

valve. 

Vice Chair Jackson stated that while there is still much work left to do on the drug guideline,

Congress and the President should be commended for enacting a federal statute that finally

addresses a fundamental fairness issue that the Commission has long identified. She also stated

that she is pleased that the Commission is committed to continuing to move toward fair and

proportionate guideline sentences in regard to drug offenses.

Commissioner Wrobleski stated that the Act was a historic and long overdue piece of legislation

to address the 100:1 crack-powder cocaine quantity ratio and that the proposed amendment is an

important additional step to make federal sentencing more just. He noted that the

Administration’s goal has been to create drug sentencing policy that is tough, contributes to

greater public safety, and is fair. In addition to the proposed amendment, Commissioner

Wroblewski agreed with Chair Saris and Vice Chair Jackson’s comments that additional steps by

the Commission may be needed and that the Department of Justice looks forward to reviewing

the possible retroactive application of the amendment. Commissioner Wroblewski concluded by

stating that the Department of Justice supported the proposed amendment.

Commissioner Hinojosa expressed his appreciation to members of Congress who worked hard

for many years and in a bipartisan fashion to pass the Act. He agreed with Chair Saris’s

statement that the Commission had long worked to reduce crack cocaine penalties.

Commissioner Howell agreed with her fellow commissioners’s remarks about the importance of

the proposed amendment. She recounted how during her time serving the Senate Judiciary

Committee she followed the issue of crack cocaine sentencing very closely and expressed pride

in being on the Commission as it implements the Act. Commissioner Howell joined in with

Chair Saris and Vice Chair Jackson’s comments that the Commission’s work is just starting

regarding a review of first Commission’s policy decision about incorporating mandatory

minimum drug penalties in the drug quantity table and looks forward doing so with the other

commissioners and stakeholders who provided valuable assistance during the current amendment

cycle.

-11-
Hearing no further discussion, the Chair called for a vote. The motion was adopted with at least

four commissioners voting in favor of the motion.

Mr. Cohen stated that before the Commission for consideration was a proposed issue for

comment, attached hereto as Exhibit K, relating to retroactivity of the amendment implementing

the Fair Sentencing Act. The issue for comment would seek comment regarding whether,

pursuant to 18 U.S.C. § 3582(c)(2) and 28 U.S.C. § 994(u), this amendment, or any part thereof,

should be included in subsection (c) of §1B1.10 (Reduction in Term of Imprisonment as a Result

of Amended Guideline Range (Policy Statement)) as an amendment that may be applied

retroactively to previously sentenced defendants. The issue for comment also requests comment

regarding whether, if it amends §1B1.10(c) to include this amendment, should it also amend

§1B1.10 to provide additional guidance to the courts on the procedure to be used when applying

an amendment retroactively.

Mr. Cohen advised the commissioners that a motion to publish the proposed issue for comment

would be in order with a 30-day comment period and with staff being authorized to make

technical and conforming changes if needed. Mr Cohen noted that staff continue to operate

under the Commission’s instructions in January to prepare a retroactivity analysis of the Fair

Sentencing Act amendment and has posted one such analysis on the Commission’s webpage.

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

publish the proposed issue for comment, with Vice Chair Jackson seconding. The Chair called

for discussion on the motion. Hearing none, the Chair called for a vote. The motion was

adopted with at least three commissioners voting in favor of the motion.

Judge Saris thanked staff for their work during the amendment cycle. The Chair noted that the

Commission is preparing its mandatory minimum that is due by October and may possibly

publish additional reports regarding Booker and child pornography offenses in the coming year. 

Chair Saris also announced the Commission will hold a retroactivity hearing concerning the Fair

Sentencing Act on June 1, 2011.

Commissioner Howell congratulated Chair Saris on completing her first amendment cycle. 

Commissioner Hinojosa also complemented the Chair on her first amendment cycle and thanked

staff for its work during the amendment cycle.

Hearing no further business before the Commission, Chair Saris asked if there was a motion to

adjourn the meeting. Commissioner Hinojosa 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 2:46 p.m.

-12-
EXHIBIT A

PROPOSED AMENDMENT: TECHNICAL

Synopsis of Proposed Amendment: This proposed amendment makes various technical and

conforming changes to the guidelines.

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

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

(May 14, 2010); USSG App. C, Amendments 738–746. Those changes are as follows:

(1) Amendment 744 made changes to the organizational guidelines in Chapter Eight,

including a change that consolidated subsections (b) and (c) of §8D1.4 (Recommended

Conditions of Probation — Organizations) into a single subsection (b). To reflect this

consolidation, §8B2.1(a) is changed so that it refers to the correct subsection of §8D1.4.

(2) Amendment 745 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, a conforming

change is made to §2Q2.1(c)(1).

Second, the proposed amendment makes technical changes to §3C1.1 (Obstructing or Impeding the

Administration of Justice), §4A1.2(k)(2), and §4B1.1(b) to promote stylistic consistency in how

subdivisions are designated.

Finally, the proposed amendment makes a series of changes throughout the Guidelines Manual to

provide full and accurate references to the titles of Chapter Three, Part C (Obstruction and Related

Adjustments) and §3C1.1 (Obstructing or Impeding the Administration of Justice).

Proposed Amendment:

CHAPTER TWO - OFFENSE CONDUCT

Introductory Commentary

Chapter Two pertains to offense conduct. The chapter is organized by offenses and divided into

parts and related sections that may cover one statute or many. Each offense has a corresponding base

offense level and may have one or more specific offense characteristics that adjust the offense level

upward or downward. Certain factors relevant to the offense that are not covered in specific guidelines

in Chapter Two are set forth in Chapter Three, Parts A (Victim-Related Adjustments), B (Role in the

Offense), and C (Obstruction and Related Adjustments); Chapter Four, Part B (Career Offenders and

Criminal Livelihood); and Chapter Five, Part K (Departures).

* * *

§2J1.2. Obstruction of Justice

* * *

-13-
Commentary

* * *

Application Notes:

2. Chapter Three Adjustments.—

(A) Inapplicability of Chapter Three, Part C.—For offenses covered under this section,

Chapter Three, Part C (Obstruction and Related Adjustments) does not apply, unless the

defendant obstructed the investigation, prosecution, or sentencing of the obstruction of

justice count.

* * *

3. Convictions for the Underlying Offense.—In the event that the defendant is convicted of an

offense sentenced under this section as well as for the underlying offense (i.e., the offense that is

the object of the obstruction), see the Commentary to Chapter Three, Part C (Obstruction and

Related Adjustments), and to §3D1.2(c) (Groups of Closely Related Counts).

* * *

§2J1.3. Perjury or Subornation of Perjury; Bribery of Witness

* * *

Commentary

Application Notes:

* * *

2. For offenses covered under this section, Chapter Three, Part C (Obstruction and Related

Adjustments) does not apply, unless the defendant obstructed the investigation or trial of the

perjury count.

3. In the event that the defendant is convicted under this section as well as for the underlying

offense (i.e., the offense with respect to which he committed perjury, subornation of perjury, or

witness bribery), see the Commentary to Chapter Three, Part C (Obstruction and Related

Adjustments), and to §3D1.2(c) (Groups of Closely Related Counts).

* * *

§2J1.6. Failure to Appear by Defendant

* * *

Commentary

* * *

Application Notes:

* * *

-14-
2. For offenses covered under this section, Chapter Three, Part C (Obstruction and Related

Adjustments) does not apply, unless the defendant obstructed the investigation or trial of the

failure to appear count.

* * *

4. If a defendant is convicted of both the underlying offense and the failure to appear count, and the

defendant committed additional acts of obstructive behavior (e.g., perjury) during the

investigation, prosecution, or sentencing of the instant offense, an upward departure may be

warranted. The upward departure will ensure an enhanced sentence for obstructive conduct for

which no adjustment under §3C1.1 (Obstruction of Justice Obstructing or Impeding the

Administration of Justice) is made because of the operation of the rules set out in Application

Note 3.

* * *

§2J1.9. Payment to Witness

* * *

Commentary

* * *

Application Notes:

1. For offenses covered under this section, Chapter Three, Part C (Obstruction and Related

Adjustments) does not apply unless the defendant obstructed the investigation or trial of the

payment to witness count.

2. In the event that the defendant is convicted under this section as well as for the underlying

offense (i.e., the offense with respect to which the payment was made), see the Commentary to

Chapter Three, Part C (Obstruction and Related Adjustments), and to §3D1.2(c) (Groups of

Closely Related Counts).

* * *

§2Q2.1. Offenses Involving Fish, Wildlife, and Plants

* * *

(c) Cross Reference

(1) If the offense involved a cultural heritage resource or paleontological

resource, apply §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), if the resulting offense level is

greater than that determined above.

* * *

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

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If (A1) the defendant willfully obstructed or impeded, or attempted to obstruct or

impede, the administration of justice with respect to the investigation, prosecution, or

sentencing of the instant offense of conviction, and (B2) the obstructive conduct related

to (iA) the defendant’s offense of conviction and any relevant conduct; or (iiB) a closely

related offense, increase the offense level by 2 levels.

* * *

§4A1.2. Definitions and Instructions for Computing Criminal History

* * *

(k) Revocations of Probation, Parole, Mandatory Release, or Supervised

Release

* * *

(2) Revocation of probation, parole, supervised release, special parole, or

mandatory release may affect the time period under which certain

sentences are counted as provided in §4A1.2(d)(2) and (e). For the

purposes of determining the applicable time period, use the following: 

(iA) in the case of an adult term of imprisonment totaling more than one

year and one month, the date of last release from incarceration on such

sentence (see §4A1.2(e)(1)); (iiB) in the case of any other confinement

sentence for an offense committed prior to the defendant’s eighteenth

birthday, the date of the defendant’s last release from confinement on

such sentence (see §4A1.2(d)(2)(A)); and (iiiC) in any other case, the

date of the original sentence (see §4A1.2(d)(2)(B) and (e)(2)).

* * *

§4B1.1. Career Offender 

* * *

(b) Except as provided in subsection (c), if the offense level for a career offender

from the table in this subsection is greater than the offense level otherwise

applicable, the offense level from the table in this subsection shall apply. A

career offender’s criminal history category in every case under this subsection

shall be Category VI.

Offense Statutory Maximum Offense Level*

(A1) Life 37

(B2) 25 years or more 34

(C3) 20 years or more, but less than 25 years 32

(D4) 15 years or more, but less than 20 years 29

(E5) 10 years or more, but less than 15 years 24

(F6) 5 years or more, but less than 10 years 17

(G7) More than 1 year, but less than 5 years 12.

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* * *

§5E1.2. Fines for Individual Defendants

* * *

Commentary

Application Notes:

* * *

6. The existence of income or assets that the defendant failed to disclose may justify a larger fine

than that which otherwise would be warranted under this section. The court may base its

conclusion as to this factor on information revealing significant unexplained expenditures by the

defendant or unexplained possession of assets that do not comport with the defendant’s reported

income. If the court concludes that the defendant willfully misrepresented all or part of his

income or assets, it may increase the offense level and resulting sentence in accordance with

Chapter Three, Part C (Obstruction and Related Adjustments).

* * *

§8A1.2. Application Instructions - Organizations

* * *

Commentary

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 Related Adjustments), and E (Acceptance of

Responsibility) do not apply. The provisions of Chapter Six (Sentencing Procedures, 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.

* * *

§8B2.1. Effective Compliance and Ethics Program

(a) To have an effective compliance and ethics program, for purposes of subsection

(f) of §8C2.5 (Culpability Score) and subsection (cb)(1) of §8D1.4

(Recommended Conditions of Probation - Organizations), an organization

shall—

* * *

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§8C2.3. Offense Level

Commentary

Application Notes:

* * *

2. In determining the offense level under this section, apply the provisions of §§1B1.2 through

1B1.8. Do not apply the adjustments in Chapter Three, Parts A (Victim-Related Adjustments), B

(Role in the Offense), C (Obstruction and Related Adjustments), and E (Acceptance of

Responsibility).

* * *

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EXHIBIT B

PROPOSED AMENDMENT: MISCELLANEOUS

Synopsis of Proposed Amendment: This proposed two-part amendment responds to miscellaneous issues

arising from legislation recently enacted and other miscellaneous guideline application issues.

Plea Agreements

Part A of the proposed amendment updates the policy statement at §6B1.2 (Standards for Acceptance of Plea

Agreements) in light of United States v. Booker, 543 U.S. 220 (2005), and the Federal Judiciary

Administrative Improvements Act of 2010, Pub. L. 111–174 (enacted May 27, 2010). The proposed

amendment amends §6B1.2 to provide standards for acceptance of plea agreements when the sentence is

outside the applicable guideline range. The proposed amendment also responds to the Federal Judiciary

Administrative Improvements Act of 2010, which amended 18 U.S.C. § 3553(c)(2) to require that the reasons

for a sentence be set forth in the statement of reasons form (rather than in the judgment and commitment

order). The proposed amendment amends both §6B1.2 and §5K2.0(e) to reflect this statutory change.

Coast Guard Authorization Act of 2010

Part B of the proposed amendment responds to the Coast Guard Authorization Act of 2010, Pub. L. 111–281

(enacted October 15, 2010), which provided statutory sentencing enhancements for certain offenses under

18 U.S.C. § 2237 (Criminal sanctions for failure to heave to, obstruction of boarding, or providing false

information) and created a new criminal offense at 33 U.S.C. § 3851.

The proposed amendment addresses the section 2237 offenses by expanding the range of guidelines to which

certain section 2237 offenses are referenced. Section 2237 makes it unlawful for—

the operator of a vessel to knowingly fail to obey a law enforcement order to heave to, see 18 U.S.C.

§ 2237(a)(1);

a person on board a vessel to forcibly interfere with a law enforcement boarding or other law

enforcement action, or to resist arrest, see 18 U.S.C. § 2237(a)(2)(A); or

a person on board a vessel to provide materially false information to a law enforcement officer

during a boarding regarding the vessel's destination, origin, ownership, registration, nationality,

cargo, or crew, see 18 U.S.C. § 2237(a)(2)(B).

All three of these offenses are punishable by not more than 5 years of imprisonment. The first two are

referenced in Appendix A (Statutory Index) to §2A2.4 (Obstructing or Impeding Officers); the third is

referenced to §2B1.1 (Theft, Property Destruction, and Fraud). However, the Coast Guard Authorization

Act of 2010 provided statutory sentencing enhancements that apply to persons convicted under either of the

first two offenses under section 2237 (i.e., the failure-to-heave-to and forcible-interference offenses

referenced to §2A2.4; the sentencing enhancements do not apply to the false-information offense referenced

to §2B1.1). The proposed amendment addresses these new statutory sentencing enhancements by

referencing them in Appendix A (Statutory Index) to Chapter Two offense guidelines most analogous to the

conduct forming the basis for the statutory sentencing enhancements.

Specifically, if the section 2237 offense results in death, the statutory maximum term of imprisonment is

-19-
raised to any term of years or life. See 18 U.S.C. § 2237(b)(2)(B)(i). The Commission determined that the

most analogous guidelines are §§2A1.3 (Voluntary Manslaughter) and 2A1.4 (Involuntary Manslaughter).

If the section 2237 offense involves an attempt to kill, kidnapping or an attempt to kidnap, or an offense

under 18 U.S.C. § 2241 (aggravated sexual abuse), the statutory maximum term of imprisonment is likewise

raised to any term of years or life. See 18 U.S.C. § 2237(b)(2)(B)(ii). The Commission determined that the

most analogous guidelines are §§2A2.1 (Assault with Intent to Commit Murder; Attempted Murder), 2A2.2

(Aggravated Assault), 2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse), and 2A4.1

(Kidnapping, Abduction, Unlawful Restraint).

If the section 2237 offense results in serious bodily injury, the statutory maximum term of imprisonment is

raised to 15 years. See 18 U.S.C. § 2237(b)(3). The Commission determined that the most analogous

guideline is §2A2.2.

If the section 2237 offense involves knowing transportation under inhumane conditions, and is committed

in the course of a violation of 8 U.S.C. § 1324; chapter 77 of title 18, United States Code; or section 113 or

117 of such title, the statutory maximum term of imprisonment is raised to 15 years. See 18 U.S.C. §

2237(b)(4). The Commission determined that the most analogous guidelines are §§2A2.1 (Assault with

Intent to Commit Murder; Attempted Murder), 2A2.2, 2G1.1 (Promoting a Commercial Sex Act or Prohibited

Sexual Conduct with an Individual Other than a Minor), 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),

2G2.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material;

Custodian Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage

in Production), 2H4.1 (Peonage, Involuntary Servitude, Slave Trade, and Child Soldiers), and 2L1.1

(Smuggling, Transporting, or Harboring an Unlawful Alien).

Finally, the proposed amendment addresses the new criminal offense at 33 U.S.C. § 3851, which makes it

a felony, punishable by not more than six years imprisonment, to sell or distribute an organotin or to sell,

distribute, make, use, or apply an anti-fouling system (e.g., paint) containing an organotin. The proposed

amendment references this new offense to §2Q1.2 (Mishandling of Hazardous or Toxic Substances or

Pesticides; Recordkeeping, Tampering, and Falsification; Unlawfully Transporting Hazardous Materials

in Commerce).

Proposed Amendment:

-20-
(A) Plea Agreements and Statement of Reasons

§6B1.2. Standards for Acceptance of Plea Agreements (Policy Statement)

(a) In the case of a plea agreement that includes the dismissal of any charges or an

agreement not to pursue potential charges (Rule 11(c)(1)(A)), the court may

accept the agreement if the court determines, for reasons stated on the record,

that the remaining charges adequately reflect the seriousness of the actual

offense behavior and that accepting the agreement will not undermine the

statutory purposes of sentencing or the sentencing guidelines.

However, a plea agreement that includes the dismissal of a charge or a plea

agreement not to pursue a potential charge shall not preclude the conduct

underlying such charge from being considered under the provisions of §1B1.3

(Relevant Conduct) in connection with the count(s) of which the defendant is

convicted.

(b) In the case of a plea agreement that includes a nonbinding recommendation

(Rule 11(c)(1)(B)), the court may accept the recommendation if the court is

satisfied either that: 

(1) the recommended sentence is within the applicable guideline range; or 

(2) (A) the recommended sentence departs from is outside the applicable

guideline range for justifiable reasons; and (B) those reasons are

specifically set forth in writing set forth with specificity in the statement

of reasons form or judgment and commitment order.

(c) In the case of a plea agreement that includes a specific sentence

(Rule 11(c)(1)\(C)), the court may accept the agreement if the court is satisfied

either that:

(1) the agreed sentence is within the applicable guideline range; or

(2) (A) the agreed sentence departs from is outside the applicable guideline

range for justifiable reasons; and (B) those reasons are specifically set

forth in writing set forth with specificity in the statement of reasons form

or judgment and commitment order.

Commentary

The court may accept an agreement calling for dismissal of charges or an agreement not to

pursue potential charges if the remaining charges reflect the seriousness of the actual offense behavior. 

This requirement does not authorize judges to intrude upon the charging discretion of the prosecutor. If

the government’s motion to dismiss charges or statement that potential charges will not be pursued is not

contingent on the disposition of the remaining charges, the judge should defer to the government’s

position except under extraordinary circumstances. Rule 48(a), Fed. R. Crim. P. However, when the

dismissal of charges or agreement not to pursue potential charges is contingent on acceptance of a plea

-21-
agreement, the court’s authority to adjudicate guilt and impose sentence is implicated, and the court is to

determine whether or not dismissal of charges will undermine the sentencing guidelines.

Similarly, the court should accept a recommended sentence or a plea agreement requiring

imposition of a specific sentence only if the court is satisfied either that such sentence is an appropriate

sentence within the applicable guideline range or, if not, that the sentence departs fromis outside the

applicable guideline range for justifiable reasons (i.e., that such departure is authorized by 18 U.S.C. §

3553(b)) and those reasons are specifically set forth in writing set forth with specificity in the statement

of reasons or the judgment and commitment orderform. See 18 U.S.C. § 3553(c). As set forth in

subsection (d) of §5K2.0 (Grounds for Departure), however, the court may not depart below the

applicable guideline range merely because of the defendant’s decision to plead guilty to the offense or to

enter a plea agreement with respect to the offense.

A defendant who enters a plea of guilty in a timely manner will enhance the likelihood of his

receiving a reduction in offense level under §3E1.1 (Acceptance of Responsibility). Further reduction in

offense level (or sentence) due to a plea agreement will tend to undermine the sentencing guidelines.

The second paragraph of subsection (a) provides that a plea agreement that includes the

dismissal of a charge, or a plea agreement not to pursue a potential charge, shall not prevent the

conduct underlying that charge from being considered under the provisions of §1B1.3 (Relevant

Conduct) in connection with the count(s) of which the defendant is convicted. This paragraph prevents a

plea agreement from restricting consideration of conduct that is within the scope of §1B1.3 (Relevant

Conduct) in respect to the count(s) of which the defendant is convicted; it does not in any way expand or

modify the scope of §1B1.3 (Relevant Conduct). Section 5K2.21 (Dismissed and Uncharged Conduct)

addresses the use, as a basis for upward departure, of conduct underlying a charge dismissed as part of

a plea agreement in the case, or underlying a potential charge not pursued in the case as part of a plea

agreement.

The Commission encourages the prosecuting attorney prior to the entry of a plea of guilty or

nolo contendere under Rule 11 of the Federal Rules of Criminal Procedure to disclose to the 

defendant the facts and circumstances of the offense and offender characteristics, then known to the

prosecuting attorney, that are relevant to the application of the sentencing guidelines. This

recommendation, however, shall not be construed to confer upon the defendant any right not otherwise

recognized in law.

* * *

§5K2.0. Grounds for Departure (Policy Statement)

* * *

(e) REQUIREMENT OF SPECIFIC WRITTEN REASONS FOR

DEPARTURE.—If the court departs from the applicable guideline range, it shall

state, pursuant to 18 U.S.C. § 3553(c), its specific reasons for departure in open

court at the time of sentencing and, with limited exception in the case of

statements received in camera, shall state those reasons with specificity in the

written judgment and commitment orderstatement of reasons form.

Commentary

-22-
Application Notes:

* * *

3.

* * *

(C) Departures Based on Circumstances Identified as Not Ordinarily Relevant.—Because

certain circumstances are specified in the guidelines as not ordinarily relevant to

sentencing (see, e.g., Chapter Five, Part H (Specific Offender Characteristics)), a

departure based on any one of such circumstances should occur only in exceptional

cases, and only if the circumstance is present in the case to an exceptional degree. If

two or more of such circumstances each is present in the case to a substantial degree,

however, and taken together make the case an exceptional one, the court may consider

whether a departure would be warranted pursuant to subsection (c). Departures based

on a combination of not ordinarily relevant circumstances that are present to a

substantial degree should occur extremely rarely and only in exceptional cases. 

In addition, as required by subsection (e), each circumstance forming the basis for a

departure described in this subdivision shall be stated with specificity in the written

judgment and commitment orderstatement of reasons form.

* * *

5. Departures Based on Plea Agreements.—Subsection (d)(4) prohibits a downward departure

based only on the defendant’s decision, in and of itself, to plead guilty to the offense or to enter a

plea agreement with respect to the offense. Even though a departure may not be based merely

on the fact that the defendant agreed to plead guilty or enter a plea agreement, a departure may

be based on justifiable, non-prohibited reasons for departure as part of a sentence that is

recommended, or agreed to, in the plea agreement and accepted by the court. See §6B1.2

(Standards for Acceptance of Plea Agreements). In cases in which the court departs based on

such reasons as set forth in the plea agreement, the court must state the reasons for departure

with specificity in the written judgment and commitment orderstatement of reasons form, as

required by subsection (e). 

* * *

-23-
(B) Coast Guard Authorization Act

APPENDIX A - STATUTORY INDEX

* * *

18 U.S.C. § 2237(a)(1),(a)(2)(A) 2A2.4

18 U.S.C. § 2237(a)(2)(B) 2B1.1

18 U.S.C. § 2237(a)(2)(B) 2B1.1

18 U.S.C. § 2237(b)(2)(B)(i) 2A1.3, 2A1.4

18 U.S.C. § 2237(b)(2)(B)(ii)(I) 2A2.1, 2A2.2

18 U.S.C. § 2237(b)(2)(B)(ii)(II) 2A4.1

18 U.S.C. § 2237(b)(2)(B)(ii)(III) 2A3.1

18 U.S.C. § 2237(b)(3) 2A2.2

18 U.S.C. § 2237(b)(4) 2A2.1, 2A2.2, 2G1.1, 2G1.3, 2G2.1, 2H4.1, 2L1.1

* * *

33 U.S.C. § 1908 2Q1.3

33 U.S.C. § 3851 2Q1.2

-24-
EXHIBIT C

PROPOSED AMENDMENT: CHILD SUPPORT

Synopsis of Proposed Amendment: This proposed amendment addresses a circuit conflict on whether a

defendant convicted of an offense involving the willful failure to pay court-ordered child support (e.g., a

violation of 18 U.S.C. § 228) and sentenced under §2B1.1 (Theft, Property Destruction, and Fraud) receives

the specific offense characteristic in §2B1.1(b)(8)(C).

Offenses under section 228 are referenced in Appendix A (Statutory Index) to §2J1.1 (Contempt), which

directs the court to apply §2X5.1 (Other Offenses), which directs the court to apply the most analogous

offense guideline. The commentary to §2J1.1 provides that, in a case involving a violation of section 228,

the most analogous offense guideline is §2B1.1. See §2J1.1, comment. (n.2).

The specific offense characteristic in §2B1.1(b)(8)(C) applies if the offense involved "a violation of any prior,

specific judicial or administrative order, injunction, decree, or process not addressed elsewhere in the

guidelines". It provides an enhancement of 2 levels and a minimum offense level of level 10.

Some circuits have disagreed over whether it is impermissible double counting to apply §2B1.1(b)(8)(C) in

a case involving a violation of section 228. The Second and Eleventh Circuits have held that applying 

§2B1.1(b)(8)(C) in a section 228 case is permissible, because the failure to pay the child support and the

violation of the order are distinct harms. See United States v. Maloney, 406 F.3d 149, 153-54 (2d Cir.

2005); United States v. Phillips, 363 F.3d 1167, 1169 (11th Cir. 2004). However, the Seventh Circuit has

held that applying §2B1.1(b)(8)(C) in a section 228 case is impermissible double counting. See United States

v. Bell, 598 F.3d 366 (7th Cir. 2010) ("to apply both the cross-reference for § 228 and the enhancement for

violation of a court or administrative order is impermissible double counting").

The proposed amendment resolves the conflict by amending the commentary to §2J1.1 to specify that, in a

case involving a violation of section 228, do not apply §2B1.1(b)(8)(C).

Proposed Amendment:

§2J1.1. Contempt 

Apply §2X5.1 (Other Offenses).

Commentary

Statutory Provisions: 18 U.S.C. §§ 401, 228. For additional statutory provision(s), see Appendix A

(Statutory Index).

Application Notes:

1. In General.—Because misconduct constituting contempt varies significantly and the nature of the

contemptuous conduct, the circumstances under which the contempt was committed, the effect the

misconduct had on the administration of justice, and the need to vindicate the authority of the court

are highly context-dependent, the Commission has not provided a specific guideline for this offense. 

-25-
In certain cases, the offense conduct will be sufficiently analogous to §2J1.2 (Obstruction of Justice)

for that guideline to apply.

2. Willful Failure to Pay Court-Ordered Child Support.—For offenses involving the willful failure to

pay court-ordered child support (violations of 18 U.S.C. § 228), the most analogous guideline is

§2B1.1 (Theft, Property Destruction, and Fraud). The amount of the loss is the amount of child

support that the defendant willfully failed to pay. In such a case, do not apply §2B1.1(b)(8)(C)

(pertaining to a violation of a prior, specific judicial order). Note: This guideline applies to second

and subsequent offenses under 18 U.S.C. § 228(a)(1) and to any offense under 18 U.S.C. § 228(a)(2)

and (3). A first offense under 18 U.S.C. § 228(a)(1) is not covered by this guideline because it is a

Class B misdemeanor.

3. Violation of Judicial Order Enjoining Fraudulent Behavior.—In a case involving a violation of a

judicial order enjoining fraudulent behavior, the most analogous guideline is §2B1.1. In such a

case, §2B1.1(b)(8)(C) (pertaining to a violation of a prior, specific judicial order) ordinarily would

apply.

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EXHIBIT D

PROPOSED AMENDMENT: ILLEGAL REENTRY

Synopsis of Proposed Amendment: Section 2L1.2 (Unlawfully Entering or Remaining in the United States)

contains a specific offense characteristic at subsection (b)(1) under which a defendant receives an

enhancement if the defendant previously was deported, or unlawfully remained in the United States, after

a conviction. The amount of the enhancement may be 16 levels, 12 levels, 8 levels, or 4 levels, depending

on the nature of the prior conviction.

The proposed amendment amends §2L1.2 to provide a limitation on the use of certain convictions under

subsections (b)(1)(A) and (B). Specifically, such a conviction would receive the 16- or 12-level enhancement,

as applicable, if the conviction receives criminal history points under Chapter Four (Criminal History and

Criminal Livelihood), and an alternative enhancement of 12 or 8 levels, respectively, if it does not. The

proposed amendment also provides an upward departure provision for cases in which this 12- or 8-level

enhancement does not adequately reflect the extent or seriousness of the conduct underlying the prior

conviction. Conforming changes to the Commentary are also made.

The proposed amendment responds to case law and comments received regarding the enhancement in

§2L1.2(b)(1) when a defendant's predicate offense would not qualify for criminal history points under

Chapter Four. Compare United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009) (defendant

had two convictions that were 25 years old; court stated that the 16-level enhancement in §2L1.2(b)(1)(A)

"addresses the seriousness of the offense" but "does not ... justify increasing a defendant's sentence by the

same magnitude irrespective of the age of the prior conviction at the time of reentry" [emphasis in

original]); with United States v. Chavez-Suarez, 597 F.3d 1137, 1139 (10th Cir. 2010) (defendant had a

conviction that was 11 years old; court discussed Amezcua-Vasquez but was "not convinced that this

conviction was so stale" as to require the sentencing court to vary downward from the 16-level

enhancement).

The guidelines account for the age of a prior conviction in Chapter Four, which specifies when a conviction

is too old to receive criminal history points. See §4A1.2(e). The guidelines contain several conviction-based

enhancements that depend on whether the conviction receives criminal history points. See, e.g., §2K1.3

(Unlawful Receipt, Possession, or Transportation of Explosive Materials; Prohibited Transactions Involving

Explosive Materials), comment. (n.9); §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms

or Ammunition; Prohibited Transactions Involving Firearms or Ammunition), comment. (n.10); §4B1.2

(Definitions of Terms Used in Section 4B1.1), comment. (n.3). The proposed amendment would reduce the

16- and 12-level enhancement when the prior conviction is too old to qualify for criminal history points, but

would not entirely eliminate the enhancement. See, e.g., Amezcua-Vasquez, 567 F.3d at 1055

(acknowledging that it is "reasonable to take some account of an aggravated felony, no matter how stale,

in assessing the seriousness of an unlawful reentry into the country"). See also id. at 1055 (in certain cases

in which the prior conviction is "stale", an enhancement may be appropriate to address the "seriousness"

of the prior conviction but need not be of the "same magnitude"); Chavez-Suarez, 597 F.3d at 1139 (same).

Proposed Amendment:

§2L1.2. Unlawfully Entering or Remaining in the United States

(a) Base Offense Level: 8

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(b) Specific Offense Characteristic

(1) Apply the Greatest:

If the defendant previously was deported, or unlawfully remained in the

United States, after—

(A) a conviction for a felony that is (i) a drug trafficking offense for

which the sentence imposed exceeded 13 months; (ii) a crime of

violence; (iii) a firearms offense; (iv) a child pornography

offense; (v) a national security or terrorism offense; (vi) a

human trafficking offense; or (vii) an alien smuggling offense,

increase by 16 levels if the conviction receives criminal history

points under Chapter Four or by 12 levels if the conviction does

not receive criminal history points;

(B) a conviction for a felony drug trafficking offense for which the

sentence imposed was 13 months or less, increase by 12 levels if

the conviction receives criminal history points under Chapter

Four or by 8 levels if the conviction does not receive criminal

history points;

(C) a conviction for an aggravated felony, increase by 8 levels;

(D) a conviction for any other felony, increase by 4 levels; or

(E) three or more convictions for misdemeanors that are crimes of

violence or drug trafficking offenses, increase by 4 levels.

Commentary

Statutory Provisions: 8 U.S.C. § 1325(a) (second or subsequent offense only), 8 U.S.C. § 1326. For

additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1. Application of Subsection (b)(1).—

(A) In General.—For purposes of subsection (b)(1):

(i) A defendant shall be considered to be deported after a conviction if the

defendant has been removed or has departed the United States while an order of

exclusion, deportation, or removal was outstanding.

(ii) A defendant shall be considered to be deported after a conviction if the

deportation was subsequent to the conviction, regardless of whether the

deportation was in response to the conviction.

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(iii) A defendant shall be considered to have unlawfully remained in the United

States if the defendant remained in the United States following a removal order

issued after a conviction, regardless of whether the removal order was in

response to the conviction.

(iv) Subsection (b)(1) does not apply to a conviction for an offense committed before

the defendant was eighteen years of age unless such conviction is classified as

an adult conviction under the laws of the jurisdiction in which the defendant was

convicted.

(B) Definitions.—For purposes of subsection (b)(1):

(i) "Alien smuggling offense" has the meaning given that term in section

101(a)(43)(N) of the Immigration and Nationality Act (8 U.S.C.

§ 1101(a)(43)(N)). 

(ii) "Child pornography offense" means (I) an offense described in 18 U.S.C. § 2251,

§ 2251A, § 2252, § 2252A, or § 2260; or (II) an offense under state or local law

consisting of conduct that would have been an offense under any such section if

the offense had occurred within the special maritime and territorial jurisdiction

of the United States.

(iii) "Crime of violence" means any of the following offenses under federal, state, or

local law: murder, manslaughter, kidnapping, aggravated assault, forcible sex

offenses (including where consent to the conduct is not given or is not legally

valid, such as where consent to the conduct is involuntary, incompetent, or

coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion,

extortionate extension of credit, burglary of a dwelling, or any other offense

under federal, state, or local law that has as an element the use, attempted use,

or threatened use of physical force against the person of another.

(iv) "Drug trafficking offense" means an offense under federal, state, or local law

that prohibits the manufacture, import, export, distribution, or dispensing of, or

offer to sell a controlled substance (or a counterfeit substance) or the possession

of a controlled substance (or a counterfeit substance) with intent to manufacture,

import, export, distribute, or dispense.

(v) "Firearms offense" means any of the following:

(I) An offense under federal, state, or local law that prohibits the

importation, distribution, transportation, or trafficking of a firearm

described in 18 U.S.C. § 921, or of an explosive material as defined in

18 U.S.C. § 841(c).

(II) An offense under federal, state, or local law that prohibits the

possession of a firearm described in 26 U.S.C. § 5845(a), or of an

explosive material as defined in 18 U.S.C. § 841(c).

(III) A violation of 18 U.S.C. § 844(h).

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(IV) A violation of 18 U.S.C. § 924(c).

(V) A violation of 18 U.S.C. § 929(a).

(VI) An offense under state or local law consisting of conduct that would

have been an offense under subdivision (III), (IV), or (V) if the offense

had occurred within the special maritime and territorial jurisdiction of

the United States.

(vi) "Human trafficking offense" means (I) any offense described in 18 U.S.C.

§ 1581, § 1582, § 1583, § 1584, § 1585, § 1588, § 1589, § 1590, or § 1591; or

(II) an offense under state or local law consisting of conduct that would have

been an offense under any such section if the offense had occurred within the

special maritime and territorial jurisdiction of the United States.

(vii) "Sentence imposed" has the meaning given the term "sentence of imprisonment"

in Application Note 2 and subsection (b) of §4A1.2 (Definitions and Instructions

for Computing Criminal History), without regard to the date of the conviction. 

The length of the sentence imposed includes any term of imprisonment given

upon revocation of probation, parole, or supervised release.

(viii) "Terrorism offense" means any offense involving, or intending to promote, a

"Federal crime of terrorism", as that term is defined in 18 U.S.C. § 2332b(g)(5).

(C) Prior Convictions.—In determining the amount of an enhancement under subsection

(b)(1), note that the levels in subsections (b)(1)(A) and (B) depend on whether the

conviction receives criminal history points under Chapter Four (Criminal History and

Criminal Livelihood), while subsections (b)(1)(C), (D), and (E) apply without regard to

whether the conviction receives criminal history points.

2. Definition of "Felony".—For purposes of subsection (b)(1)(A), (B), and (D), "felony" means any

federal, state, or local offense punishable by imprisonment for a term exceeding one year.

3. Application of Subsection (b)(1)(C).—

(A) Definitions.—For purposes of subsection (b)(1)(C), "aggravated felony" has the meaning

given that term in section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. §

1101(a)(43)), without regard to the date of conviction for the aggravated felony.

(B) In General.—The offense level shall be increased under subsection (b)(1)(C) for any

aggravated felony (as defined in subdivision (A)), with respect to which the offense level

is not increased under subsections (b)(1)(A) or (B).

4. Application of Subsection (b)(1)(E).—For purposes of subsection (b)(1)(E):

(A) "Misdemeanor" means any federal, state, or local offense punishable by a term of

imprisonment of one year or less.

(B) "Three or more convictions" means at least three convictions for offenses that are not

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counted as a single sentence pursuant to subsection (a)(2) of §4A1.2 (Definitions and

Instructions for Computing Criminal History).

5. Aiding and Abetting, Conspiracies, and Attempts.—Prior convictions of offenses counted under

subsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to

commit such offenses.

6. Computation of Criminal History Points.—A conviction taken into account under subsection

(b)(1) is not excluded from consideration of whether that conviction receives criminal history

points pursuant to Chapter Four, Part A (Criminal History).

7. Departure Based on Seriousness of a Prior Conviction.—There may be cases in which the

applicable offense level substantially overstates or understates the seriousness of a prior

conviction. In such a case, a departure may be warranted. Examples: (A) In a case in which

subsection (b)(1)(A) or (b)(1)(B) does not apply and the defendant has a prior conviction for

possessing or transporting a quantity of a controlled substance that exceeds a quantity consistent

with personal use, an upward departure may be warranted. (B) In a case in which the 12-level

enhancement under subsection (b)(1)(A) or the 8-level enhancement in subsection (b)(1)(B)

applies but that enhancement does not adequately reflect the extent or seriousness of the conduct

underlying the prior conviction, an upward departure may be warranted. (C) In a case in which

subsection (b)(1)(A) applies, and the prior conviction does not meet the definition of aggravated

felony at 8 U.S.C. § 1101(a)(43), a downward departure may be warranted.

78. Departure Based on Cultural Assimilation.—There may be cases in which a downward

departure may be appropriate on the basis of cultural assimilation. Such a departure should be

considered only in cases where (A) the defendant formed cultural ties primarily with the United

States from having resided continuously in the United States from childhood, (B) those cultural

ties provided the primary motivation for the defendant’s illegal reentry or continued presence in

the United States, and (C) such a departure is not likely to increase the risk to the public from

further crimes of the defendant.

In determining whether such a departure is appropriate, the court should consider, among other

things, (1) the age in childhood at which the defendant began residing continuously in the United

States, (2) whether and for how long the defendant attended school in the United States, (3) the

duration of the defendant’s continued residence in the United States, (4) the duration of the

defendant’s presence outside the United States, (5) the nature and extent of the defendant’s

familial and cultural ties inside the United States, and the nature and extent of such ties outside

the United States, (6) the seriousness of the defendant’s criminal history, and (7) whether the

defendant engaged in additional criminal activity after illegally reentering the United States.

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EXHIBIT E

PROPOSED AMENDMENT: SUPERVISED RELEASE

Synopsis of Proposed Amendment: The proposed amendment makes revisions to the supervised release

guidelines, §5D1.1 (Imposition of a Term of Supervised Release) and §5D1.2 (Term of Supervised

Release).

First, the proposed amendment creates an exception to the general rule that a term of supervised release

be imposed whenever a sentence of imprisonment of more than one year is imposed, or when required by

statute. See §5D1.1(a). The exception, inserted as a new subsection (c) in §5D1.1, states that supervised

release ordinarily should not be imposed in a case in which supervised release is not required by statute

and the defendant is a deportable alien who likely will be deported after imprisonment. A new

application note is also inserted to explain that imposing supervised release in such a case is generally

unnecessary, although there may be particular cases in which it is appropriate. Non-citizens represent a

significant percentage of the overall population of federal offenders. See 2009 Sourcebook of Federal

Sentencing Statistics 19 (Table 9, showing 44.7% of federal offenders in fiscal year 2009 were noncitizens). Supervised release is imposed in more than 91 percent of cases in which the defendant is a

non-citizen. See Federal Offenders Sentenced to Supervised Release at 60. However, "recent changes in

our immigration law have made removal nearly an automatic result for a broad class of noncitizen

offenders." Padilla v. Kentucky, 130 S. Ct. 1473, 1481 (2010); see also id. at 1478 ("[D]eportation or

removal . . . is now virtually inevitable for a vast number of noncitizens convicted of crimes."). Such

offenders likely would face prosecution for a new offense under the federal immigration laws if they were

to return illegally to the United States.

Second, the proposed amendment lowers the minimum term of supervised release required by the

guidelines for certain defendants when a statute does not require a higher minimum term. Currently,

§5D1.2 requires the court to impose a term of supervised release of at least three years when the

defendant is convicted of a Class A or B felony and at least two years when the defendant is convicted of

a Class C or D felony. The proposed amendment lowers these minimum terms to two years and one year,

respectively. Research indicates that the majority of defendants who violate a condition of supervised

release do so during the first year of the term of supervised release. See Federal Offenders Sentenced to

Supervised Release 63 & n. 265.

In addition, the proposed amendment inserts commentary into §§5D1.1 and 5D1.2 to provide guidance

on what a court should consider in deciding whether to order a term of supervised release and, if so, how

long such a term should be. For example, commentary inserted into §5D1.1 states that, in general, the

more serious the defendant's criminal history, the greater the need for supervised release. Research

indicates that, on average, the lower the criminal history category a defendant has, the greater the

likelihood that the defendant will successfully complete supervision without revocation. See Federal

Offenders Sentenced to Supervised Release 66-67 (Figure 4). Similarly, commentary inserted into

§5D1.2 states that the court should ensure that the term imposed on the defendant is long enough to

address the purposes of imposing supervised release on the defendant. 

Finally, the proposed amendment makes technical and conforming changes to §§5D1.1 and 5D1.2 to

reflect requirements imposed by the supervised release statute, 18 U.S.C. § 3583.

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Proposed Amendment: §5D1.1. Imposition of a Term of Supervised Release

(a) The court shall order a term of supervised release to follow imprisonment—

(1) when required by statute (see 18 U.S.C. § 3583(a)); or

(2) except as provided in subsection (c), when a sentence of imprisonment

of more than one year is imposed, or when required by statute.

(b) The court may order a term of supervised release to follow imprisonment in any

other case. See 18 U.S.C. § 3583(a).

(c) The court ordinarily should not impose a term of supervised release in a case in

which supervised release is not required by statute and the defendant is a

deportable alien who likely will be deported after imprisonment.

Commentary

Application Notes:

1. Application of Subsection (a).—Under subsection (a), the court is required to impose a term of

supervised release to follow imprisonment if when supervised release is required by statute or,

except as provided in subsection (c), when 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: (1) to

protect the public welfare; (2) to enforce a financial condition; (3) to provide drug or alcohol

treatment or testing; (4) to assist the reintegration of the defendant into the community; or (5) to

accomplish any other sentencing purpose authorized by statute.supervised release is not

required by statute and the court determines, after considering the factors set forth in Note 3,

that supervised release is not necessary.

2. Application of Subsection (b).—Under subsection (b), the court may impose a term of supervised

release to follow a term of imprisonment of one year or less for any of the reasons set forth in

Application Note 1.in any other case, after considering the factors set forth in Note 3.

3. Factors to Be Considered.—

(A) Statutory Factors.—In determining whether to impose a term of supervised release, the

court is required by statute to consider, among other factors:

(i) the nature and circumstances of the offense and the history and characteristics

of the defendant;

(ii) the need to afford adequate deterrence to criminal conduct, to protect the public

from further crimes of the defendant, and to provide the defendant with needed

educational or vocational training, medical care, or other correctional

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treatment in the most effective manner;

(iii) the need to avoid unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct; and

(iv) the need to provide restitution to any victims of the offense.

See 18 U.S.C. § 3583(c).

(B) Criminal History.—The court should give particular consideration to the defendant's

criminal history (which is one aspect of the "history and characteristics of the

defendant" in subparagraph (A)(i), above). In general, the more serious the defendant's

criminal history, the greater the need for supervised release.

(C) Substance Abuse.—In a case in which a defendant sentenced to imprisonment is an

abuser of controlled substances or alcohol, it is highly recommended that a term of

supervised release also be imposed. See §5H1.4 (Physical Condition, Including Drug or

Alcohol Dependence or Abuse; Gambling Addiction).

4. Community Confinement or Home Detention Following Imprisonment.—A term of supervised

release must be imposed if the court wishes to impose a "split sentence" under which the

defendant serves a term of imprisonment followed by a period of community confinement or

home detention pursuant to subsection (c)(2) or (d)(2) of §5C1.1 (Imposition of a Term of

Imprisonment). In such a case, the period of community confinement or home detention is

imposed as a condition of supervised release.

5. Application of Subsection (c).—In a case in which the defendant is a deportable alien specified

in subsection (c) and supervised release is not required by statute, the court ordinarily should

not impose a term of supervised release. Unless such a defendant legally returns to the United

States, supervised release is unnecessary. If such a defendant illegally returns to the United

States, the need to afford adequate deterrence and protect the public ordinarily is adequately

served by a new prosecution. The court should, however, consider imposing a term of

supervised release on such a defendant if the court determines it would provide an added

measure of deterrence and protection based on the facts and circumstances of a particular case.

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§5D1.2. Term of Supervised Release

(a) Except as provided in subsections (b) and (c), if a term of supervised release is

ordered, the length of the term shall be:

(1) At least threetwo years but not more than five years for a defendant

convicted of a Class A or B felony. See 18 U.S.C. § 3583(b)(1).

(2) At least two years one year but not more than three years for a defendant

convicted of a Class C or D felony. See 18 U.S.C. § 3583(b)(2).

(3) One year for a defendant convicted of a Class E felony or a Class A

misdemeanor. See 18 U.S.C. § 3583(b)(3).

(b) Notwithstanding subdivisions (a)(1) through (3), the length of the term of

supervised release shall be not less than the minimum term of years specified for

the offense under subdivisions (a)(1) through (3) and may be up to life, if the

offense is—

(1) any offense listed in 18 U.S.C. § 2332b(g)(5)(B), the commission of

which resulted in, or created a foreseeable risk of, death or serious

bodily injury to another person; or 

(2) a sex offense.

(Policy Statement) If the instant offense of conviction is a sex offense, however,

the statutory maximum term of supervised release is recommended.

(c) The term of supervised release imposed shall be not less than any statutorily

required term of supervised release.

Commentary

Application Notes:

1. Definitions.—For purposes of this guideline:

"Sex offense" means (A) an offense, perpetrated against a minor, under (i) chapter 109A of title

18, United States Code; (ii) chapter 109B of such title; (iii) chapter 110 of such title, not

including a recordkeeping offense; (iv) chapter 117 of such title, not including transmitting

information about a minor or filing a factual statement about an alien individual; (v) an offense

under 18 U.S.C. § 1201; or (vi) an offense under 18 U.S.C. § 1591; or (B) an attempt or a

conspiracy to commit any offense described in subdivisions (A)(i) through (vi) of this note.

"Minor" means (A) an individual who had not attained the age of 18 years; (B) an individual,

whether fictitious or not, who a law enforcement officer represented to a participant (i) had not

attained the age of 18 years; and (ii) could be provided for the purposes of engaging in sexually

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explicit conduct; or (C) an undercover law enforcement officer who represented to a participant

that the officer had not attained the age of 18 years.

2. Safety Valve Cases.—A defendant who qualifies under §5C1.2 (Limitation on Applicability of

Statutory Minimum Sentence in Certain Cases) is not subject to any statutory minimum sentence

of supervised release. See 18 U.S.C. § 3553(f). In such a case, the term of supervised release

shall be determined under subsection (a).

3. Substantial Assistance Cases.—Upon motion of the Government, a defendant who has provided

substantial assistance in the investigation or prosecution of another person who has committed

an offense may be sentenced to a term of supervised release that is less than any minimum

required by statute or the guidelines. See 18 U.S.C. § 3553(e), §5K1.1 (Substantial Assistance to

Authorities).

4. Factors Considered.—The factors to be considered in determining the length of a term of

supervised release are the same as the factors considered in determining whether to impose such

a term. See 18 U.S.C. § 3583(c); Application Note 3 to §5D1.1 (Imposition of a Term of

Supervised Release). The court should ensure that the term imposed on the defendant is long

enough to address the purposes of imposing supervised release on the defendant.

5. Early Termination and Extension.—The court has authority to terminate or extend a term of

supervised release. See 18 U.S.C. § 3583(e)(1), (2). The court is encouraged to exercise this

authority in appropriate cases. The prospect of exercising this authority is a factor the court

may wish to consider in determining the length of a term of supervised release. For example, the

court may wish to consider early termination of supervised release if the defendant is an abuser

of narcotics, other controlled substances, or alcohol who, while on supervised release,

successfully completes a treatment program, thereby reducing the risk to the public from further

crimes of the defendant.

Background: This section specifies the length of a term of supervised release that is to be imposed. 

Subsection (c) applies to statutes, such as the Anti-Drug Abuse Act of 1986, that require imposition of a

specific minimum term of supervised release. 

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EXHIBIT F

PROPOSED AMENDMENT: FIREARMS

Synopsis of Proposed Amendment: This proposed amendment amends the primary firearms guideline,

§2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited

Transactions Involving Firearms or Ammunition), to address concerns about "straw purchasers" and

firearms leaving the United States. The proposed amendment also amends the guideline for

international weapons trafficking, §2M5.2 (Exportation of Arms, Munitions, or Military Equipment or

Services Without Required Validated Export License), to provide higher penalties for certain cases

involving small arms crossing the border and more guidance on cases involving ammunition leaving the

United States.

Straw Purchasers

First, the proposed amendment amends §2K2.1 to address concerns about "straw purchasers" (i.e.,

individuals who buy firearms on behalf of others who are not eligible to buy firearms themselves). 

Specifically, it would increase penalties for straw purchasers whose offense of conviction is for making

false statements (i.e., 18 U.S.C. § 922(a)(6) or 924(a)(1)(A)) but who engaged in the offense with

knowledge, intent, or reason to believe that the offense would result in the transfer of the firearm to a

prohibited person. Under the proposed amendment, such a straw purchaser would receive the same base

offense level 14 as a straw purchaser convicted under 18 U.S.C. § 922(d) of knowingly distributing a

firearm or ammunition to a prohibited person (or the same base offense level 20, if the offense involved

certain types of firearms). Currently, these §§ 922(a)(6) and 924(a)(1)(A) defendants receive a base

offense level of 12.

In addition, a new Application Note 15 is provided stating that, in a case in which the defendant is

convicted under any of the three straw purchaser statutes, a downward departure may be warranted if

(A) none of the enhancements in subsection (b) apply, (B) 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, and (C) the defendant received no monetary compensation from the offense.

Firearms Leaving the United States

The proposed amendment also adds a new prong to the specific offense characteristic at subsection

(b)(6). Subsection (b)(6) currently provides a 4-level enhancement, and a minimum offense level of 18, if

the defendant used or possessed any firearm or ammunition in connection with another felony offense; or

possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it

would be used or possessed in connection with another felony offense. The proposed amendment would

make the existing provision prong (B) of subsection (b)(6), and would establish a new prong (A), which

would apply if the defendant possessed any firearm or ammunition while leaving or attempting to leave

the United States, or possessed or transferred any firearm or ammunition with knowledge, intent, or

reason to believe that it would be transported out of the United States.

Export Offenses Involving Small Arms or Ammunition

The proposed amendment amends §2M5.2 to narrow the scope of the alternative base offense level of 14. 

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This has the effect of raising penalties for certain cases involving small arms crossing the border, 

because certain defendants who currently receive the alternative base offense level of 14 would instead

receive the higher alternative base offense level of 26. The base offense level of 14 currently applies "if

the offense involved only non-fully automatic small arms (rifles, handguns, or shotguns) and the number

of weapons did not exceed ten." See §2M5.2(a)(2). The proposed amendment would reduce the

threshold number of small arms in subsection (a)(2) from ten to two.

The proposed amendment would also amend §2M5.2 to address cases in which the defendant possesses

ammunition, either in an ammunition-only case or in a case involving ammunition and small arms. 

There appear to be disparities in how §2M5.2(a)(2) is being applied in these cases. Under the proposed

amendment, a defendant with ammunition would receive the alternative base offense level of 14 if the

ammunition consisted of not more than 500 rounds of ammunition for small arms.

References in Appendix A (Statutory Index)

Finally, the proposed amendment amends Appendix A (Statutory Index) to address certain offenses.

First, it amends Appendix A (Statutory Index) to expand the number of guidelines to which offenses

under 50 U.S.C. § 1705 are referenced. Section 1705 makes it unlawful to violate, attempt to violate,

conspire to violate, or cause a violation of any license, order, regulation, or prohibition issued under the

International Emergency Economic Powers Act (50 U.S.C. § 1701 et seq.). Any person who willfully

commits, willfully attempts or conspires to commit, or aids or abets in the commission of such an

unlawful act may be imprisoned for not more than 20 years. See 50 U.S.C. § 1705(c). Appendix A

(Statutory Index) currently contains two separate entries: the criminal offense, 50 U.S.C. § 1705, is

referenced to §2M5.3 (Providing Material Support or Resources to Designated Foreign Terrorist

Organizations or Specially Designated Global Terrorists, or For a Terrorist Purpose), while another

statute that contains no criminal offense, 50 U.S.C. § 1701, is referenced to §2M5.3 as well as to

§§2M5.1 (Evasion of Export Controls; Financial Transactions with Countries Supporting International

Terrorism) and 2M5.2 (Exportation of Arms, Munitions, or Military Equipment or Services Without

Required Validated Export License). The proposed amendment revises the entry for 50 U.S.C. § 1705 to

include all three guidelines, §§2M5.1, 2M5.2, and 2M5.3, and deletes as unnecessary the entry for 50

U.S.C. § 1701.

Second, the proposed amendment addresses a new offense created by the Comprehensive Iran Sanctions,

Accountability, and Divestment Act of 2010, Pub. L. 111–195. Section 103 of that Act (22 U.S.C. § 8512)

makes it unlawful to import into the United States certain goods or services of Iranian origin, or export

to Iran certain goods, services, or technology, and provides that the penalties under 50 U.S.C. § 1705

apply to a violation. The proposed amendment amends Appendix A (Statutory Index) to reference the

new offense at 22 U.S.C. § 8512 to §§2M5.1, 2M5.2, and 2M5.3.

Conforming changes are made to the Statutory Provisions part of the commentary to each of §§2M5.1,

2M5.2, and 2M5.3.

Proposed Amendment:

§2K2.1. Unlawful Receipt, Possession, or Transportation of Firearms or

Ammunition; Prohibited Transactions Involving Firearms or Ammunition 

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

(1) 26, if (A) the offense involved a (i) semiautomatic firearm that is

capable of accepting a large capacity magazine; or (ii) firearm that is

described in 26 U.S.C. § 5845(a); and (B) the defendant committed any

part of the instant offense subsequent to sustaining at least two felony

convictions of either a crime of violence or a controlled substance

offense;

(2) 24, if the defendant committed any part of the instant offense subsequent

to sustaining at least two felony convictions of either a crime of violence

or a controlled substance offense;

(3) 22, if (A) the offense involved a (i) semiautomatic firearm that is

capable of accepting a large capacity magazine; or (ii) firearm that is

described in 26 U.S.C. § 5845(a); and (B) the defendant committed any

part of the instant offense subsequent to sustaining one felony conviction

of either a crime of violence or a controlled substance offense;

(4) 20, if --

(A) the defendant committed any part of the instant offense

subsequent to sustaining one felony conviction of either a crime

of violence or a controlled substance offense; or

(B) the (i) offense involved a (I) semiautomatic firearm that is

capable of accepting a large capacity magazine; or (II) firearm

that is described in 26 U.S.C. § 5845(a); and (ii) defendant (I)

was a prohibited person at the time the defendant committed the

instant offense; or (II) is convicted under 18 U.S.C. § 922(d); or

(III) is convicted under 18 U.S.C. § 922(a)(6) or § 924(a)(1)(A)

and committed the offense with knowledge, intent, or reason to

believe that the offense would result in the transfer of a firearm

or ammunition to a prohibited person;

(5) 18, if the offense involved a firearm described in 26 U.S.C. § 5845(a);

(6) 14, if the defendant (A) was a prohibited person at the time the

defendant committed the instant offense; or (B) is convicted under 18

U.S.C. § 922(d); or (C) is convicted under 18 U.S.C. § 922(a)(6) or §

924(a)(1)(A) and committed the offense with knowledge, intent, or

reason to believe that the offense would result in the transfer of a firearm

or ammunition to a prohibited person;

(7) 12, except as provided below; or

(8) 6, if the defendant is convicted under 18 U.S.C. § 922(c), (e), (f), (m),

(s), (t), or (x)(1).

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(b) Specific Offense Characteristics 

(1) If the offense involved three or more firearms, increase as follows:

Number of Firearms Increase in Level

(A) 3-7 add 2

(B) 8-24 add 4

(C) 25-99 add 6

(D) 100-199 add 8

(E) 200 or more add 10.

(2) If the defendant, other than a defendant subject to subsection (a)(1),

(a)(2), (a)(3), (a)(4), or (a)(5), possessed all ammunition and firearms

solely for lawful sporting purposes or collection, and did not unlawfully

discharge or otherwise unlawfully use such firearms or ammunition,

decrease the offense level determined above to level 6.

(3) If the offense involved—

(A) a destructive device that is a portable rocket, a missile, or a

device for use in launching a portable rocket or a missile,

increase by 15 levels; or 

(B) a destructive device other than a destructive device referred to in

subdivision (A), increase by 2 levels.

(4) If any firearm (A) was stolen, increase by 2 levels; or (B) had an altered

or obliterated serial number, increase by 4 levels.

The cumulative offense level determined from the application of subsections

(b)(1) through (b)(4) may not exceed level 29, except if subsection (b)(3)(A)

applies.

(5) If the defendant engaged in the trafficking of firearms, increase by 4

levels.

(6) If the defendant—

(A) possessed any firearm or ammunition while leaving or

attempting to leave the United States, or possessed or transferred

any firearm or ammunition with knowledge, intent, or reason to

believe that it would be transported out of the United States; or

(B) used or possessed any firearm or ammunition in connection with

another felony offense; or possessed or transferred any firearm

or ammunition with knowledge, intent, or reason to believe that

it would be used or possessed in connection with another felony

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offense, 

increase by 4 levels. If the resulting offense level is less than level 18,

increase to level 18.

(7) If a recordkeeping offense reflected an effort to conceal a substantive

offense involving firearms or ammunition, increase to the offense level

for the substantive offense.

(c) Cross Reference

(1) If the defendant used or possessed any firearm or ammunition in

connection with the commission or attempted commission of another

offense, or possessed or transferred a firearm or ammunition with

knowledge or intent that it would be used or possessed in connection

with another offense, apply --

(A) §2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that

other offense, if the resulting offense level is greater than that

determined above; or

(B) if death resulted, the most analogous offense guideline from

Chapter Two, Part A, Subpart 1 (Homicide), if the resulting

offense level is greater than that determined above.

Commentary

Statutory Provisions: 18 U.S.C. §§ 922(a)-(p), (r)-(w), (x)(1), 924(a), (b), (e)-(i), (k)-(o), 2332g; 26

U.S.C. § 5861(a)-(l). For additional statutory provisions, see Appendix A (Statutory Index).

Application Notes:

1. Definitions.— For purposes of this guideline: 

"Ammunition" has the meaning given that term in 18 U.S.C. § 921(a)(17)(A).

"Controlled substance offense" has the meaning given that term in §4B1.2(b) and Application

Note 1 of the Commentary to §4B1.2 (Definitions of Terms Used in Section 4B1.1).

"Crime of violence" has the meaning given that term in §4B1.2(a) and Application Note 1 of the

Commentary to §4B1.2. 

"Destructive device" has the meaning given that term in 26 U.S.C. § 5845(f).

"Felony conviction" means a prior adult federal or state conviction for an offense punishable by

death or imprisonment for a term exceeding one year, regardless of whether such offense is

specifically designated as a felony and regardless of the actual sentence imposed. A conviction

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for an offense committed at age eighteen years or older is an adult conviction. A conviction for

an offense committed prior to age eighteen years is an adult conviction if it is classified as an

adult conviction under the laws of the jurisdiction in which the defendant was convicted (e.g., a

federal conviction for an offense committed prior to the defendant’s eighteenth birthday is an

adult conviction if the defendant was expressly proceeded against as an adult).

"Firearm" has the meaning given that term in 18 U.S.C. § 921(a)(3).

2. Semiautomatic Firearm That Is Capable of Accepting a Large Capacity Magazine.—For

purposes of subsections (a)(1), (a)(3), and (a)(4), a "semiautomatic firearm that is capable of

accepting a large capacity magazine" means a semiautomatic firearm that has the ability to fire

many rounds without reloading because at the time of the offense (A) the firearm had attached to

it a magazine or similar device that could accept more than 15 rounds of ammunition; or (B) a

magazine or similar device that could accept more than 15 rounds of ammunition was in close

proximity to the firearm. This definition does not include a semiautomatic firearm with an

attached tubular device capable of operating only with .22 caliber rim fire ammunition.

3. Definition of "Prohibited Person".—For purposes of subsections (a)(4)(B) and (a)(6),

"prohibited person" means any person described in 18 U.S.C. § 922(g) or § 922(n).

4. Application of Subsection (a)(7).— Subsection (a)(7) includes the interstate transportation or

interstate distribution of firearms, which is frequently committed in violation of state, local, or

other federal law restricting the possession of firearms, or for some other underlying unlawful

purpose. In the unusual case in which it is established that neither avoidance of state, local, or

other federal firearms law, nor any other underlying unlawful purpose was involved, a reduction

in the base offense level to no lower than level 6 may be warranted to reflect the less serious

nature of the violation.

5. Application of Subsection (b)(1).—For purposes of calculating the number of firearms under

subsection (b)(1), count only those firearms that were unlawfully sought to be obtained,

unlawfully possessed, or unlawfully distributed, including any firearm that a defendant obtained

or attempted to obtain by making a false statement to a licensed dealer.

6. Application of Subsection (b)(2).—Under subsection (b)(2), "lawful sporting purposes or

collection" as determined by the surrounding circumstances, provides for a reduction to an

offense level of 6. Relevant surrounding circumstances include the number and type of firearms,

the amount and type of ammunition, the location and circumstances of possession and actual

use, the nature of the defendant’s criminal history (e.g., prior convictions for offenses involving

firearms), and the extent to which possession was restricted by local law. Note that where the

base offense level is determined under subsections (a)(1) - (a)(5), subsection (b)(2) is not

applicable. 

7. Destructive Devices.—A defendant whose offense involves a destructive device receives both the

base offense level from the subsection applicable to a firearm listed in 26 U.S.C. § 5845(a) (e.g.,

subsection (a)(1), (a)(3), (a)(4)(B), or (a)(5)), and the applicable enhancement under subsection

(b)(3). Such devices pose a considerably greater risk to the public welfare than other National

Firearms Act weapons.

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Offenses involving such devices cover a wide range of offense conduct and involve different

degrees of risk to the public welfare depending on the type of destructive device involved and the

location or manner in which that destructive device was possessed or transported. For example,

a pipe bomb in a populated train station creates a substantially greater risk to the public

welfare, and a substantially greater risk of death or serious bodily injury, than an incendiary

device in an isolated area. In a case in which the cumulative result of the increased base offense

level and the enhancement under subsection (b)(3) does not adequately capture the seriousness

of the offense because of the type of destructive device involved, the risk to the public welfare, or

the risk of death or serious bodily injury that the destructive device created, an upward

departure may be warranted. See also §§5K2.1 (Death), 5K2.2 (Physical Injury), and 5K2.14

(Public Welfare).

8. Application of Subsection (b)(4).—

(A) Interaction with Subsection (a)(7).—If the only offense to which §2K2.1 applies is 18

U.S.C. § 922(i), (j), or (u), or 18 U.S.C. § 924(l) or (m) (offenses involving a stolen

firearm or stolen ammunition) and the base offense level is determined under subsection

(a)(7), do not apply the enhancement in subsection (b)(4)(A). This is because the base

offense level takes into account that the firearm or ammunition was stolen. However, if

the offense involved a firearm with an altered or obliterated serial number, apply

subsection (b)(4)(B).

Similarly, if the offense to which §2K2.1 applies is 18 U.S.C. § 922(k) or 26 U.S.C. §

5861(g) or (h) (offenses involving an altered or obliterated serial number) and the base

offense level is determined under subsection (a)(7), do not apply the enhancement in

subsection (b)(4)(B). This is because the base offense level takes into account that the

firearm had an altered or obliterated serial number. However, it the offense involved a

stolen firearm or stolen ammunition, apply subsection (b)(4)(A).

(B) Knowledge or Reason to Believe.—Subsection (b)(4) applies regardless of whether the

defendant knew or had reason to believe that the firearm was stolen or had an altered or

obliterated serial number.

9. Application of Subsection (b)(7).— Under subsection (b)(7), if a record-keeping offense was

committed to conceal a substantive firearms or ammunition offense, the offense level is increased

to the offense level for the substantive firearms or ammunition offense (e.g., if the defendant

falsifies a record to conceal the sale of a firearm to a prohibited person, the offense level is

increased to the offense level applicable to the sale of a firearm to a prohibited person).

10. Prior Felony Convictions.—For purposes of applying subsection (a)(1), (2), (3), or (4)(A), use

only those felony convictions that receive criminal history points under §4A1.1(a), (b), or (c). In

addition, for purposes of applying subsection (a)(1) and (a)(2), use only those felony convictions

that are counted separately under §4A1.1(a), (b), or (c). See §4A1.2(a)(2). 

Prior felony conviction(s) resulting in an increased base offense level under subsection (a)(1),

(a)(2), (a)(3), (a)(4)(A), (a)(4)(B), or (a)(6) are also counted for purposes of determining

criminal history points pursuant to Chapter Four, Part A (Criminal History). 

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11. Upward Departure Provisions.—An upward departure may be warranted in any of the following

circumstances: (A) the number of firearms substantially exceeded 200; (B) the offense involved

multiple National Firearms Act weapons (e.g., machineguns, destructive devices), military type

assault rifles, non-detectable ("plastic") firearms (defined at 18 U.S.C. § 922(p)); (C) the offense

involved large quantities of armor-piercing ammunition (defined at 18 U.S.C. § 921(a)(17)(B));

or (D) the offense posed a substantial risk of death or bodily injury to multiple individuals (see

Application Note 7).

12. Armed Career Criminal.—A defendant who is subject to an enhanced sentence under the

provisions of 18 U.S.C. § 924(e) is an Armed Career Criminal. See §4B1.4.

13. Application of Subsection (b)(5).—

(A) In General.—Subsection (b)(5) applies, regardless of whether anything of value was

exchanged, if the defendant—

(i) transported, transferred, or otherwise disposed of two or more firearms to

another individual, or received two or more firearms with the intent to transport,

transfer, or otherwise dispose of firearms to another individual; and 

(ii) knew or had reason to believe that such conduct would result in the transport,

transfer, or disposal of a firearm to an individual—

(I) whose possession or receipt of the firearm would be unlawful; or 

(II) who intended to use or dispose of the firearm unlawfully.

(B) Definitions.—For purposes of this subsection:

"Individual whose possession or receipt of the firearm would be unlawful" means an

individual who (i) has a prior conviction for a crime of violence, a controlled substance

offense, or a misdemeanor crime of domestic violence; or (ii) at the time of the offense

was under a criminal justice sentence, including probation, parole, supervised release,

imprisonment, work release, or escape status. "Crime of violence" and "controlled

substance offense" have the meaning given those terms in §4B1.2 (Definitions of Terms

Used in Section 4B1.1). "Misdemeanor crime of domestic violence" has the meaning

given that term in 18 U.S.C. § 921(a)(33)(A).

The term "defendant", consistent with §1B1.3 (Relevant Conduct), limits the

accountability of the defendant to the defendant’s own conduct and conduct that the

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

caused.

(C) Upward Departure Provision.—If the defendant trafficked substantially more than 25

firearms, an upward departure may be warranted. 

(D) Interaction with Other Subsections.—In a case in which three or more firearms were

both possessed and trafficked, apply both subsections (b)(1) and (b)(5). If the defendant

-44-
used or transferred one of such firearms in connection with another felony offense (i.e.,

an offense other than a firearms possession or trafficking offense) an enhancement under

subsection (b)(6)(B) also would apply.

14. "In Connection With".—

(A) In General.—Subsections (b)(6)(B) and (c)(1) apply if the firearm or ammunition

facilitated, or had the potential of facilitating, another felony offense or another offense,

respectively.

(B) Application When Other Offense is Burglary or Drug Offense.—Subsections (b)(6)(B)

and (c)(1) apply (i) in a case in which a defendant who, during the course of a burglary,

finds and takes a firearm, even if the defendant did not engage in any other conduct with

that firearm during the course of the burglary; and (ii) in the case of a drug trafficking

offense in which a firearm is found in close proximity to drugs, drug-manufacturing

materials, or drug paraphernalia. In these cases, application of subsections (b)(6)(B)

and (c)(1) is warranted because the presence of the firearm has the potential of

facilitating another felony offense or another offense, respectively.

(C) Definitions.—

"Another felony offense", for purposes of subsection (b)(6)(B), means any federal, state,

or local offense, other than the explosive or firearms possession or trafficking offense,

punishable by imprisonment for a term exceeding one year, regardless of whether a

criminal charge was brought, or a conviction obtained. 

"Another offense", for purposes of subsection (c)(1), means any federal, state, or local

offense, other than the explosive or firearms possession or trafficking offense, regardless

of whether a criminal charge was brought, or a conviction obtained. 

(D) Upward Departure Provision.—In a case in which the defendant used or possessed a

firearm or explosive to facilitate another firearms or explosives offense (e.g., the

defendant used or possessed a firearm to protect the delivery of an unlawful shipment of

explosives), an upward departure under §5K2.6 (Weapons and Dangerous

Instrumentalities) may be warranted.

15. Certain Convictions Under 18 U.S.C. §§ 922(a)(6), 922(d), and 924(a)(1)(A).—In a case in

which the defendant is convicted under 18 U.S.C. §§ 922(a)(6), 922(d), or 924(a)(1)(A), a

downward departure may be warranted if (A) none of the enhancements in subsection (b) apply,

(B) 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, and (C) the defendant

received no monetary compensation from the offense.

* * *

§2M5.1. Evasion of Export Controls; Financial Transactions with Countries Supporting

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International Terrorism

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

(1) 26, if (A) national security controls or controls relating to the

proliferation of nuclear, biological, or chemical weapons or materials

were evaded; or (B) the offense involved a financial transaction with a 

country supporting international terrorism; or

(2) 14, otherwise.

Commentary

Statutory Provisions: 18 U.S.C. § 2332d; 22 U.S.C. § 8512; 50 U.S.C. § 1705; 50 U.S.C. App. §§ 2401-

2420.

Application Notes:

1. In the case of a violation during time of war or armed conflict, an upward departure may be

warranted.

2. In determining the sentence within the applicable guideline range, the court may consider the

degree to which the violation threatened a security interest of the United States, the volume of

commerce involved, the extent of planning or sophistication, and whether there were multiple

occurrences. Where such factors are present in an extreme form, a departure from the

guidelines may be warranted. See Chapter Five, Part K (Departures).

3. In addition to the provisions for imprisonment, 50 U.S.C. App. § 2410 contains provisions for

criminal fines and forfeiture as well as civil penalties. The maximum fine for individual

defendants is $250,000. In the case of corporations, the maximum fine is five times the value of

the exports involved or $1 million, whichever is greater. When national security controls are

violated, in addition to any other sanction, the defendant is subject to forfeiture of any interest

in, security of, or claim against: any goods or tangible items that were the subject of the

violation; property used to export or attempt to export that was the subject of the violation; and

any proceeds obtained directly or indirectly as a result of the violation.

4. For purposes of subsection (a)(1)(B), "a country supporting international terrorism" means a

country designated under section 6(j) of the Export Administration Act (50 U.S.C. App. 2405).

§2M5.2. Exportation of Arms, Munitions, or Military Equipment or Services Without

Required Validated Export License

(a) Base Offense Level: 

(1) 26, except as provided in subdivision (2) below;

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(2) 14, if the offense involved only (A) non-fully automatic small arms

(rifles, handguns, or shotguns), and the number of weapons did not

exceed tentwo, (B) ammunition for non-fully automatic small arms, and

the number of rounds did not exceed 500, or (C) both.

Commentary

Statutory Provisions: 18 U.S.C. § 554; 22 U.S.C. §§ 2778, 2780, 8512; 50 U.S.C. § 1705.

Application Notes:

1. Under 22 U.S.C. § 2778, the President is authorized, through a licensing system administered by

the Department of State, to control exports of defense articles and defense services that he deems

critical to a security or foreign policy interest of the United States. The items subject to control

constitute the United States Munitions List, which is set out in 22 C.F.R. Part 121.1. Included in

this list are such things as military aircraft, helicopters, artillery, shells, missiles, rockets,

bombs, vessels of war, explosives, military and space electronics, and certain firearms.

The base offense level assumes that the offense conduct was harmful or had the potential to be

harmful to a security or foreign policy interest of the United States. In the unusual case where

the offense conduct posed no such risk, a downward departure may be warranted. In the case of

a violation during time of war or armed conflict, an upward departure may be warranted. See

Chapter Five, Part K (Departures).

2. In determining the sentence within the applicable guideline range, the court may consider the

degree to which the violation threatened a security or foreign policy interest of the United States,

the volume of commerce involved, the extent of planning or sophistication, and whether there

were multiple occurrences. Where such factors are present in an extreme form, a departure from

the guidelines may be warranted.

§2M5.3. Providing Material Support or Resources to Designated Foreign Terrorist

Organizations or Specially Designated Global Terrorists, or For a Terrorist

Purpose

(a) Base Offense Level: 26

(b) Specific Offense Characteristic

(1) If the offense involved the provision of (A) dangerous weapons; (B)

firearms; (C) explosives; (D) funds with the intent, knowledge, or

reason to believe such funds would be used to purchase any of the items

described in subdivisions (A) through (C); or (E) funds or other material

support or resources with the intent, knowledge, or reason to believe

they are to be used to commit or assist in the commission of a violent

act, increase by 2 levels.

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(c) Cross References

(1) If the offense resulted in death, apply §2A1.1 (First Degree Murder) if

the death was caused intentionally or knowingly, or §2A1.2 (Second 

Degree Murder) otherwise, if the resulting offense level is greater than

that determined above.

(2) If the offense was tantamount to attempted murder, apply §2A2.1

(Assault with Intent to Commit Murder; Attempted Murder), if the

resulting offense level is greater than that determined above.

(3) If the offense involved the provision of (A) a nuclear weapon, nuclear

material, or nuclear byproduct material; (B) a chemical weapon; (C) a

biological agent, toxin, or delivery system; or (D) a weapon of mass

destruction, apply §2M6.1 (Nuclear, Biological, and Chemical Weapons,

and Other Weapons of Mass Destruction), if the resulting offense level

is greater than that determined above.

Commentary

Statutory Provisions: 18 U.S.C. §§ 2283, 2284, 2339B, 2339C(a)(1)(B), (c)(2)(B) (but only with respect

to funds known or intended to have been provided or collected in violation of 18 U.S.C.

§ 2339C(a)(1)(B)); 22 U.S.C. § 8512; 50 U.S.C. §§ 1701, 1705.

Application Notes:

1. Definitions.—For purposes of this guideline:

"Biological agent", "chemical weapon", "nuclear byproduct material", "nuclear material",

"toxin", and "weapon of mass destruction" have the meaning given those terms in Application

Note 1 of the Commentary to §2M6.1 (Nuclear, Biological, and Chemical Weapons, and Other

Weapons of Mass Destruction).

"Dangerous weapon", "firearm", and "destructive device" have the meaning given those terms in

Application Note 1 of the Commentary to §1B1.1 (Application Instructions).

"Explosives" has the meaning given that term in Application Note 1 of the Commentary to

§2K1.4 (Arson; Property Damage by Use of Explosives).

"Foreign terrorist organization" has the meaning given the term "terrorist organization" in 18

U.S.C. § 2339B(g)(6).

"Material support or resources" has the meaning given that term in 18 U.S.C. § 2339B(g)(4).

"Specially designated global terrorist" has the meaning given that term in 31 C.F.R. § 594.513.

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2. Departure Provisions.—

(A) In General.—In determining the sentence within the applicable guideline range, the

court may consider the degree to which the violation threatened a security interest of the

United States, the volume of the funds or other material support or resources involved,

the extent of planning or sophistication, and whether there were multiple occurrences. 

In a case in which such factors are present in an extreme form, a departure from the

guidelines may be warranted. See Chapter Five, Part K (Departures).

(B) War or Armed Conflict.—In the case of a violation during time of war or armed conflict,

an upward departure may be warranted.

* * *

APPENDIX A - STATUTORY INDEX

* * *

22 U.S.C. § 4221 2B1.1

22 U.S.C. § 8512 2M5.1, 2M5.2, 2M5.3

* * *

50 U.S.C. § 1701 2M5.1, 2M5.2, 2M5.3

50 U.S.C. § 1705 2M5.1, 2M5.2, 2M5.3

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EXHIBIT G

PROPOSED AMENDMENT: FRAUD

Synopsis of Proposed Amendment: This proposed amendment amends §2B1.1 (Theft, Property

Destruction, and Fraud) in response to a directive to the Commission in the Patient Protection and

Affordable Care Act, Pub. L. 111–148 (the "Patient Protection Act"). It also responds to certain new

offenses created by the Patient Protection Act and by the Dodd-Frank Wall Street Reform and Consumer

Protection Act, Pub. L. 111–203 (the "Dodd-Frank Act").

Response to Directive

First, the proposed amendment responds to section 10606(a)(2) of the Patient Protection Act, which directs

the Commission to—

(A) review the Federal Sentencing Guidelines and policy statements applicable to

persons convicted of Federal health care offenses;

(B) amend the Federal Sentencing Guidelines and policy statements applicable to

persons convicted of Federal health care offenses involving Government health

care programs to provide that the aggregate dollar amount of fraudulent bills

submitted to the Government health care program shall constitute prima facie

evidence of the amount of the intended loss by the defendant; and

(C) amend the Federal Sentencing Guidelines to provide—

(i) a 2-level increase in the offense level for any defendant convicted of a

Federal health care offense relating to a Government health care program

which involves a loss of not less than $1,000,000 and less than $7,000,000;

(ii) a 3-level increase in the offense level for any defendant convicted of a

Federal health care offense relating to a Government health care program

which involves a loss of not less than $7,000,000 and less than

$20,000,000;

(iii) a 4-level increase in the offense level for any defendant convicted of a

Federal health care offense relating to a Government health care program

which involves a loss of not less than $20,000,000; and

(iv) if appropriate, otherwise amend the Federal Sentencing Guidelines and

policy statements applicable to persons convicted of Federal health care

offenses involving Government health care programs.

Section 10606(a)(3) of the Patient Protection Act requires the Commission, in implementing this directive,

to—

(A) ensure that the Federal Sentencing Guidelines and policy statements—

(i) reflect the serious harms associated with health care fraud and the need for

aggressive and appropriate law enforcement action to prevent such fraud;

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and

(ii) provide increased penalties for persons convicted of health care fraud

offenses in appropriate circumstances;

(B) consult with individuals or groups representing health care fraud victims, law

enforcement officials, the health care industry, and the Federal judiciary as part

of the review described in paragraph (2); 

(C) ensure reasonable consistency with other relevant directives and with other

guidelines under the Federal Sentencing Guidelines;

(D) account for any aggravating or mitigating circumstances that might justify

exceptions, including circumstances for which the Federal Sentencing Guidelines,

as in effect on the date of enactment of this Act, provide sentencing enhancements;

(E) make any necessary conforming changes to the Federal Sentencing Guidelines; and

(F) ensure that the Federal Sentencing Guidelines adequately meet the purposes of

sentencing. 

The proposed amendment implements this directive by adding two provisions to §2B1.1, both of which apply

to cases in which "the defendant was convicted of a Federal health care offense involving a Government

health care program".

The first provision is a tiered enhancement that applies in such cases if the loss is more than $1,000,000. 

The enhancement is 2 levels if the loss was more than $1,000,000, 3 levels if the loss is more than

$7,000,000, and 4 levels if the loss is more than $20,000,000. This tiered enhancement implements

paragraph (2)(C) of the directive. To "ensure reasonable consistency" with the guidelines, as required by

section 10606(a)(3)(C) of the Patient Protection Act, the tiers of the enhancement apply to loss amounts

"more than" than the dollar amounts specified in the directive, rather than to loss amounts "not less than"

the dollar amounts specified in the directive. The consistent practice in the Guidelines Manual is to apply

enhancements to loss amounts "more than" dollar amounts.

The second provision is a new special rule in Application Note 3(F) for determining intended loss in a case

in which the defendant is convicted of a Federal health care offense involving a Government health care

program. The special rule provides that, in such a case, "the aggregate dollar amount of fraudulent bills

submitted to the Government health care program shall constitute prima facie evidence of the amount of the

intended loss, i.e., is evidence sufficient to establish the amount of the intended loss, if not rebutted." This

special rule implements paragraph (2)(B) of the directive.

The proposed amendment also adds definitions to the commentary in §2B1.1 to define the terms "Federal

health care offense" and "Government health care program". "Federal health care offense" is defined to

have the meaning given that term in 18 U.S.C. § 24. "Government health care program" is defined to mean

"any plan or program that provides health benefits, whether directly, through insurance, or otherwise, which

is funded directly, in whole or in part, by federal or state government." The proposed amendment also

provides, as examples of such programs, the Medicare program, the Medicaid program, and the CHIP

program.

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Finally, the proposed amendment amends Application Note 3(A) to §3B1.2 (Mitigating Role) to indicate that

a defendant who is accountable under §1B1.3 (Relevant Conduct) for a loss amount under §2B1.1 that

greatly exceeds the defendant's personal gain from a fraud offense and who had limited knowledge of the

scope of the scheme is not precluded from consideration for a mitigating role adjustment. For example, a

defendant in a health care fraud scheme, whose role in the scheme was limited to serving as a nominee

owner and who received little personal gain relative to the loss amount, is not precluded from consideration

for a mitigating role adjustment.

New Offenses

In addition, the proposed amendment responds to certain new offenses created by the Patient Protection Act

and Dodd-Frank Act.

First, the proposed amendment responds to the new offense created by the Dodd-Frank Act at 12 U.S.C. §

5382. Under authority granted by the Dodd-Frank Act, the Secretary of the Treasury may make a "systemic

risk determination" regarding a financial company and, if the company fails the determination, may

commence the orderly liquidation of the company by appointing the Federal Deposit Insurance Corporation

as receiver. See sections 202-203 of the Dodd-Frank Act. Before making the appointment, the Secretary

must either obtain the consent of the company or petition under seal for district court approval. The DoddFrank Act makes it a crime, classified to 12 U.S.C. § 5382, to recklessly disclose such a determination or

the pendency of court proceedings on such a petition. A person who violates 12 U.S.C. § 5382 is subject to

imprisonment for not more than 5 years. The proposed amendment references this new offense to §2H3.1

(Interception of Communications; Eavesdropping; Disclosure of Certain Private or Protected Information).

Second, the proposed amendment responds to the new offense created by the Dodd-Frank Act at 15 U.S.C.

§ 78jjj(d). The Dodd-Frank Act makes it a crime, classified to 15 U.S.C. § 78jjj(d), for a person to falsely

represent that he or she is a member of the Security Investor Protection Corporation or that any person or

account is protected or eligible for protection under the Security Investor Protection Act. See section 929V

of the Dodd-Frank Act. A person who violates section 78jjj(d) is subject to imprisonment for not more than

5 years. Section 78jjj also contains two other offenses, at subsections (c)(1) and (c)(2), that are not currently

referenced in Appendix A (Statutory Index). The proposed amendment references all these offenses under

section 78jjj to §2B1.1.

Third, the proposed amendment responds to section 6601 of the Patient Protection Act, which established

a new offense at 29 U.S.C. § 1149 for making a false statement in connection with the marketing or sale of

a multiple employer welfare arrangement under the Employee Retirement Income Security Act. A person

who commits this new offense is subject to a term of imprisonment of not more than 10 years. The proposed

amendment references this new offense in Appendix A (Statutory Index) to §2B1.1.

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

(a) Base Offense Level:

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(1) 7, if (A) the defendant was convicted of an offense referenced to this

guideline; and (B) that offense of conviction has a statutory maximum

term of imprisonment of 20 years or more; or 

(2) 6, otherwise.

(b) Specific Offense Characteristics

(1) If the loss exceeded $5,000, increase the offense level as follows: 

Loss (Apply the Greatest) Increase in Level

(A) $5,000 or less no increase

(B) More than $5,000 add 2

(C) More than $10,000 add 4

(D) More than $30,000 add 6

(E) More than $70,000 add 8

(F) More than $120,000 add 10

(G) More than $200,000 add 12

(H) More than $400,000 add 14

(I) More than $1,000,000 add 16

(J) More than $2,500,000 add 18

(K) More than $7,000,000 add 20

(L) More than $20,000,000 add 22

(M) More than $50,000,000 add 24

(N) More than $100,000,000 add 26

(O) More than $200,000,000 add 28

(P) More than $400,000,000 add 30.

(2) (Apply the greatest) If the offense—

(A) (i) involved 10 or more victims; or (ii) was committed through

mass-marketing, increase by 2 levels;

(B) involved 50 or more victims, increase by 4 levels; or

(C) involved 250 or more victims, increase by 6 levels.

(3) If the offense involved a theft from the person of another, increase by 2

levels. 

(4) If the offense involved receiving stolen property, and the defendant was

a person in the business of receiving and selling stolen property, increase

by 2 levels. 

(5) If the offense involved misappropriation of a trade secret and the

defendant knew or intended that the offense would benefit a foreign

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government, foreign instrumentality, or foreign agent, increase by 2

levels.

(6) If the offense involved theft of, damage to, destruction of, or trafficking

in, property from a national cemetery or veterans’ memorial, increase by

2 levels.

(7) If (A) the defendant was convicted of an offense under 18 U.S.C.

§ 1037; and (B) the offense involved obtaining electronic mail addresses

through improper means, increase by 2 levels.

(8) If (A) the defendant was convicted of a Federal health care offense

involving a Government health care program; and (B) the loss under

subsection (b)(1) to the Government health care program was (i) more

than $1,000,000, increase by 2 levels; (ii) more than $7,000,000,

increase by 3 levels; or (iii) more than $20,000,000, increase by 4 levels.

(89) If the offense involved (A) a misrepresentation that the defendant was

acting on behalf of a charitable, educational, religious, or political

organization, or a government agency; (B) a misrepresentation or other

fraudulent action during the course of a bankruptcy proceeding; (C) a

violation of any prior, specific judicial or administrative order,

injunction, decree, or process not addressed elsewhere in the guidelines;

or (D) a misrepresentation to a consumer in connection with obtaining,

providing, or furnishing financial assistance for an institution of higher

education, increase by 2 levels. If the resulting offense level is less than

level 10, increase to level 10.

(910) If (A) the defendant relocated, or participated in relocating, a fraudulent

scheme to another jurisdiction to evade law enforcement or regulatory

officials; (B) a substantial part of a fraudulent scheme was committed

from outside the United States; or (C) the offense otherwise involved

sophisticated means, increase by 2 levels. If the resulting offense level

is less than level 12, increase to level 12.

(1011) If the offense involved (A) the possession or use of any (i) devicemaking equipment, or (ii) authentication feature; (B) the production or

trafficking of any (i) unauthorized access device or counterfeit access

device, or (ii) authentication feature; or (C)(i) the unauthorized transfer

or use of any means of identification unlawfully to produce or obtain any

other means of identification, or (ii) the possession of 5 or more means

of identification that unlawfully were produced from, or obtained by the

use of, another means of identification, increase by 2 levels. If the

resulting offense level is less than level 12, increase to level 12.

(1112) If the offense involved conduct described in 18 U.S.C. § 1040, increase

by 2 levels. If the resulting offense level is less than level 12, increase to

level 12.

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(1213) If the offense involved an organized scheme to steal or to receive stolen

(A) vehicles or vehicle parts; or (B) goods or chattels that are part of a

cargo shipment, increase by 2 levels. If the resulting offense level is less

than level 14, increase to level 14.

(1314) If the offense involved (A) the conscious or reckless risk of death or

serious bodily injury; or (B) possession of a dangerous weapon

(including a firearm) in connection with the offense, increase by 2

levels. If the resulting offense level is less than level 14, increase to

level 14.

(1415) (Apply the greater) If— 

(A) the defendant derived more than $1,000,000 in gross receipts

from one or more financial institutions as a result of the offense,

increase by 2 levels; or

(B) the offense (i) substantially jeopardized the safety and soundness

of a financial institution; (ii) substantially endangered the

solvency or financial security of an organization that, at any time

during the offense, (I) was a publicly traded company; or (II) had

1,000 or more employees; or (iii) substantially endangered the

solvency or financial security of 100 or more victims, increase

by 4 levels.

(C) The cumulative adjustments from application of both

subsections (b)(2) and (b)(1415)(B) shall not exceed 8 levels,

except as provided in subdivision (D).

(D) If the resulting offense level determined under subdivision (A)

or (B) is less than level 24, increase to level 24.

(1516) If (A) the defendant was convicted of an offense under 18 U.S.C. §

1030, and the offense involved an intent to obtain personal information,

or (B) the offense involved the unauthorized public dissemination of

personal information, increase by 2 levels.

(1617) (A) (Apply the greatest) If the defendant was convicted of an offense

under:

(i) 18 U.S.C. § 1030, and the offense involved a computer

system used to maintain or operate a critical

infrastructure, or used by or for a government entity in

furtherance of the administration of justice, national

defense, or national security, increase by 2 levels. 

(ii) 18 U.S.C. § 1030(a)(5)(A), increase by 4 levels.

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(iii) 18 U.S.C. § 1030, and the offense caused a substantial

disruption of a critical infrastructure, increase by 6

levels.

(B) If subdivision (A)(iii) applies, and the offense level is less than

level 24, increase to level 24.

(1718) If the offense involved—

(A) a violation of securities law and, at the time of the offense, the

defendant was (i) an officer or a director of a publicly traded

company; (ii) a registered broker or dealer, or a person

associated with a broker or dealer; or (iii) an investment adviser,

or a person associated with an investment adviser; or

(B) a violation of commodities law and, at the time of the offense,

the defendant was (i) an officer or a director of a futures

commission merchant or an introducing broker; (ii) a

commodities trading advisor; or (iii) a commodity pool operator,

increase by 4 levels.

(c) Cross References

(1) If (A) a firearm, destructive device, explosive material, or controlled

substance was taken, or the taking of any such item was an object of the

offense; or (B) the stolen property received, transported, transferred,

transmitted, or possessed was a firearm, destructive device, explosive

material, or controlled substance, apply §2D1.1 (Unlawful

Manufacturing, Importing, Exporting, or Trafficking (Including

Possession with Intent to Commit These Offenses); Attempt or

Conspiracy), §2D2.1 (Unlawful Possession; Attempt or Conspiracy),

§2K1.3 (Unlawful Receipt, Possession, or Transportation of Explosive

Materials; Prohibited Transactions Involving Explosive Materials), or

§2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or

Ammunition; Prohibited Transactions Involving Firearms or

Ammunition), as appropriate.

(2) If the offense involved arson, or property damage by use of explosives,

apply §2K1.4 (Arson; Property Damage by Use of Explosives), if the

resulting offense level is greater than that determined above.

(3) If (A) neither subdivision (1) nor (2) of this subsection applies; (B) the

defendant was convicted under a statute proscribing false, fictitious, or

fraudulent statements or representations generally (e.g., 18 U.S.C.

§ 1001, § 1341, § 1342, or § 1343); and (C) the conduct set forth in the 

count of conviction establishes an offense specifically covered by

another guideline in Chapter Two (Offense Conduct), apply that other

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guideline.

(4) If the offense involved a cultural heritage resource or a paleontological

resource, apply §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), if the resulting offense level is

greater than that determined above.

Commentary

Statutory Provisions: 7 U.S.C. §§ 6, 6b, 6c, 6h, 6o, 13, 23; 15 U.S.C. §§ 50, 77e, 77q, 77x, 78j, 78ff,

80b-6, 1644, 6821; 18 U.S.C. §§ 38, 225, 285-289, 471-473, 500, 510, 553(a)(1), 641, 656, 657, 659,

662, 664, 1001-1008, 1010-1014, 1016-1022, 1025, 1026, 1028, 1029, 1030(a)(4)-(5), 1031, 1037, 1040,

1341-1344, 1348, 1350, 1361, 1363, 1369, 1702, 1703 (if vandalism or malicious mischief, including

destruction of mail, is involved), 1708, 1831, 1832, 1992(a)(1), (a)(5), 2113(b), 2282A, 2282B, 2291,

2312-2317, 2332b(a)(1), 2701; 19 U.S.C. § 2401f; 29 U.S.C. § 501(c); 42 U.S.C. § 1011; 49 U.S.C. §§

14915, 30170, 46317(a), 60123(b). For additional statutory provision(s), see Appendix A (Statutory

Index).

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).

"Equity securities" has the meaning given that term in section 3(a)(11) of the Securities

Exchange Act of 1934 (15 U.S.C. § 78c(a)(11)).

"Federal health care offense" has the meaning given that term in 18 U.S.C. § 24.

"Financial institution" includes any institution described in 18 U.S.C. § 20, § 656, § 657, § 1005,

§ 1006, § 1007, or § 1014; any state or foreign bank, trust company, credit union, insurance

company, investment company, mutual fund, savings (building and loan) association, union or

employee pension fund; any health, medical, or hospital insurance association; brokers and

dealers registered, or required to be registered, with the Securities and Exchange Commission;

futures commodity merchants and commodity pool operators registered, or required to be

registered, with the Commodity Futures Trading Commission; and any similar entity, whether or

not insured by the federal government. "Union or employee pension fund" and "any health,

medical, or hospital insurance association," primarily include large pension funds that serve

many persons (e.g., pension funds of large national and international organizations, unions, and

corporations doing substantial interstate business), and associations that undertake to provide

pension, disability, or other benefits (e.g., medical or hospitalization insurance) to large

numbers of persons.

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"Firearm" and "destructive device" have the meaning given those terms in the Commentary to

§1B1.1 (Application Instructions). 

"Foreign instrumentality" and "foreign agent" have the meaning given those terms in 18 U.S.C.

§ 1839(1) and (2), respectively.

"Government health care program" means any plan or program that provides health benefits,

whether directly, through insurance, or otherwise, which is funded directly, in whole or in part,

by federal or state government. Examples of such programs are the Medicare program, the

Medicaid program, and the CHIP program.

"Means of identification" has the meaning given that term in 18 U.S.C. § 1028(d)(7), except that

such means of identification shall be of an actual (i.e., not fictitious) individual, other than the

defendant or a person for whose conduct the defendant is accountable under §1B1.3 (Relevant

Conduct).

"National cemetery" means a cemetery (A) established under section 2400 of title 38, United

States Code; or (B) under the jurisdiction of the Secretary of the Army, the Secretary of the Navy,

the Secretary of the Air Force, or the Secretary of the Interior.

"Paleontological 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).

"Personal information" means sensitive or private information involving an identifiable

individual (including such information in the possession of a third party), including (A) medical

records; (B) wills; (C) diaries; (D) private correspondence, including e-mail; (E) financial

records; (F) photographs of a sensitive or private nature; or (G) similar information.

"Publicly traded company" means an issuer (A) with a class of securities registered under

section 12 of the Securities Exchange Act of 1934 (15 U.S.C. § 78l); or (B) that is required to file

reports under section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. § 78o(d)). 

"Issuer" has the meaning given that term in section 3 of the Securities Exchange Act of 1934 (15

U.S.C. § 78c). 

"Theft from the person of another" means theft, without the use of force, of property that was

being held by another person or was within arms’ reach. Examples include pick-pocketing and

non-forcible purse-snatching, such as the theft of a purse from a shopping cart. 

"Trade secret" has the meaning given that term in 18 U.S.C. § 1839(3).

"Veterans’ memorial" means any structure, plaque, statue, or other monument described in 18

U.S.C. § 1369(a).

"Victim" means (A) any person who sustained any part of the actual loss determined under

subsection (b)(1); or (B) any individual who sustained bodily injury as a result of the offense. 

"Person" includes individuals, corporations, companies, associations, firms, partnerships,

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societies, and joint stock companies.

2. Application of Subsection (a)(1).—

(A) "Referenced to this Guideline".—For purposes of subsection (a)(1), an offense is

"referenced to this guideline" if (i) this guideline is the applicable Chapter Two

guideline determined under the provisions of §1B1.2 (Applicable Guidelines) for the

offense of conviction; or (ii) in the case of a conviction for conspiracy, solicitation, or

attempt to which §2X1.1 (Attempt, Solicitation, or Conspiracy) applies, this guideline is

the appropriate guideline for the offense the defendant was convicted of conspiring,

soliciting, or attempting to commit.

(B) Definition of "Statutory Maximum Term of Imprisonment".—For purposes of this

guideline, "statutory maximum term of imprisonment" means the maximum term of

imprisonment authorized for the offense of conviction, including any increase in that

maximum term under a statutory enhancement provision.

(C) Base Offense Level Determination for Cases Involving Multiple Counts.—In a case

involving multiple counts sentenced under this guideline, the applicable base offense

level is determined by the count of conviction that provides the highest statutory

maximum term of imprisonment.

3. Loss Under Subsection (b)(1).—This application note applies to the determination of loss under

subsection (b)(1).

(A) General Rule.—Subject to the exclusions in subdivision (D), loss is the greater of actual

loss or intended loss.

(i) Actual Loss.—"Actual loss" means the reasonably foreseeable pecuniary harm

that resulted from the offense.

(ii) Intended Loss.—"Intended loss" (I) means the pecuniary harm that was intended

to result from the offense; and (II) includes intended pecuniary harm that would

have been impossible or unlikely to occur (e.g., as in a government sting

operation, or an insurance fraud in which the claim exceeded the insured value).

(iii) Pecuniary Harm.—"Pecuniary harm" means harm that is monetary or that

otherwise is readily measurable in money. Accordingly, pecuniary harm does

not include emotional distress, harm to reputation, or other non-economic harm.

(iv) Reasonably Foreseeable Pecuniary Harm.—For purposes of this guideline,

"reasonably foreseeable pecuniary harm" means pecuniary harm that the

defendant knew or, under the circumstances, reasonably should have known,

was a potential result of the offense. 

(v) Rules of Construction in Certain Cases.—In the cases described in subdivisions

(I) through (III), reasonably foreseeable pecuniary harm shall be considered to

include the pecuniary harm specified for those cases as follows:

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(I) Product Substitution Cases.—In the case of a product substitution

offense, the reasonably foreseeable pecuniary harm includes the

reasonably foreseeable costs of making substitute transactions and

handling or disposing of the product delivered, or of retrofitting the

product so that it can be used for its intended purpose, and the

reasonably foreseeable costs of rectifying the actual or potential

disruption to the victim’s business operations caused by the product

substitution. 

(II) Procurement Fraud Cases.—In the case of a procurement fraud, such as

a fraud affecting a defense contract award, reasonably foreseeable

pecuniary harm includes the reasonably foreseeable administrative costs

to the government and other participants of repeating or correcting the

procurement action affected, plus any increased costs to procure the

product or service involved that was reasonably foreseeable. 

(III) Offenses Under 18 U.S.C. § 1030.—In the case of an offense under 18

U.S.C. § 1030, actual loss includes the following pecuniary harm,

regardless of whether such pecuniary harm was reasonably foreseeable:

any reasonable cost to any victim, including the cost of responding to an

offense, conducting a damage assessment, and restoring the data,

program, system, or information to its condition prior to the offense, and

any revenue lost, cost incurred, or other damages incurred because of

interruption of service.

(B) Gain.—The court shall use the gain that resulted from the offense as an alternative

measure of loss only if there is a loss but it reasonably cannot be determined.

(C) Estimation of Loss.—The court need only make a reasonable estimate of the loss. The

sentencing judge is in a unique position to assess the evidence and estimate the loss

based upon that evidence. For this reason, the court’s loss determination is entitled to

appropriate deference. See 18 U.S.C. § 3742(e) and (f). 

The estimate of the loss shall be based on available information, taking into account, as

appropriate and practicable under the circumstances, factors such as the following:

(i) The fair market value of the property unlawfully taken, copied, or destroyed; or,

if the fair market value is impracticable to determine or inadequately measures

the harm, the cost to the victim of replacing that property.

(ii) In the case of proprietary information (e.g., trade secrets), the cost of developing

that information or the reduction in the value of that information that resulted

from the offense.

(iii) The cost of repairs to damaged property. 

(iv) The approximate number of victims multiplied by the average loss to each

victim.

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(v) The reduction that resulted from the offense in the value of equity securities or

other corporate assets.

(vi) More general factors, such as the scope and duration of the offense and

revenues generated by similar operations.

(D) Exclusions from Loss.—Loss shall not include the following:

(i) Interest of any kind, finance charges, late fees, penalties, amounts based on an

agreed-upon return or rate of return, or other similar costs.

(ii) Costs to the government of, and costs incurred by victims primarily to aid the

government in, the prosecution and criminal investigation of an offense.

(E) Credits Against Loss.—Loss shall be reduced by the following:

 (i) The money returned, and the fair market value of the property returned and the

services rendered, by the defendant or other persons acting jointly with the

defendant, to the victim before the offense was detected. The time of detection of

the offense is the earlier of (I) the time the offense was discovered by a victim or

government agency; or (II) the time the defendant knew or reasonably should

have known that the offense was detected or about to be detected by a victim or

government agency.

(ii) In a case involving collateral pledged or otherwise provided by the defendant,

the amount the victim has recovered at the time of sentencing from disposition 

of the collateral, or if the collateral has not been disposed of by that time, the

fair market value of the collateral at the time of sentencing.

(F) Special Rules.—Notwithstanding subdivision (A), the following special rules shall be

used to assist in determining loss in the cases indicated:

(i) Stolen or Counterfeit Credit Cards and Access Devices; Purloined Numbers and

Codes.—In a case involving any counterfeit access device or unauthorized

access device, loss includes any unauthorized charges made with the counterfeit

access device or unauthorized access device and shall be not less than $500 per

access device. However, if the unauthorized access device is a means of

telecommunications access that identifies a specific telecommunications

instrument or telecommunications account (including an electronic serial

number/mobile identification number (ESN/MIN) pair), and that means was only

possessed, and not used, during the commission of the offense, loss shall be not

less than $100 per unused means. For purposes of this subdivision, "counterfeit

access device" and "unauthorized access device" have the meaning given those

terms in Application Note 9(A).

(ii) Government Benefits.—In a case involving government benefits (e.g., grants,

loans, entitlement program payments), loss shall be considered to be not less

than the value of the benefits obtained by unintended recipients or diverted to

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unintended uses, as the case may be. For example, if the defendant was the

intended recipient of food stamps having a value of $100 but fraudulently

received food stamps having a value of $150, loss is $50.

(iii) Davis-Bacon Act Violations.—In a case involving a Davis-Bacon Act violation

(i.e., a violation of 40 U.S.C. § 3142, criminally prosecuted under 18 U.S.C.

§ 1001), the value of the benefits shall be considered to be not less than the

difference between the legally required wages and actual wages paid. 

(iv) Ponzi and Other Fraudulent Investment Schemes.—In a case involving a

fraudulent investment scheme, such as a Ponzi scheme, loss shall not be reduced

by the money or the value of the property transferred to any individual investor

in the scheme in excess of that investor’s principal investment (i.e., the gain to

an individual investor in the scheme shall not be used to offset the loss to

another individual investor in the scheme).

(v) Certain Other Unlawful Misrepresentation Schemes.—In a case involving a

scheme in which (I) services were fraudulently rendered to the victim by persons

falsely posing as licensed professionals; (II) goods were falsely represented as

approved by a governmental regulatory agency; or (III) goods for which

regulatory approval by a government agency was required but not obtained, or

was obtained by fraud, loss shall include the amount paid for the property,

services or goods transferred, rendered, or misrepresented, with no credit

provided for the value of those items or services.

(vi) Value of Controlled Substances.—In a case involving controlled substances, loss

is the estimated street value of the controlled substances. 

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

involving a cultural heritage resource or paleontological resource, loss

attributable to that resource shall be determined in accordance with the rules

for determining the "value of the resource" set forth in Application Note 2 of the

Commentary to §2B1.5.

(viii) Federal Health Care Offenses Involving Government Health Care

Programs.—In a case in which the defendant is convicted of a Federal health

care offense involving a Government health care program, the aggregate dollar

amount of fraudulent bills submitted to the Government health care program

shall constitute prima facie evidence of the amount of the intended loss, i.e., is

evidence sufficient to establish the amount of the intended loss, if not rebutted.

4. Application of Subsection (b)(2).—

(A) Definition.—For purposes of subsection (b)(2), "mass-marketing" means a plan,

program, promotion, or campaign that is conducted through solicitation by telephone,

mail, the Internet, or other means to induce a large number of persons to (i) purchase

goods or services; (ii) participate in a contest or sweepstakes; or (iii) invest for financial

profit. "Mass-marketing" includes, for example, a telemarketing campaign that solicits a

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large number of individuals to purchase fraudulent life insurance policies.

(B) Applicability to Transmission of Multiple Commercial Electronic Mail Messages.—For

purposes of subsection (b)(2), an offense under 18 U.S.C. § 1037, or any other offense

involving conduct described in 18 U.S.C. § 1037, shall be considered to have been

committed through mass-marketing. Accordingly, the defendant shall receive at least a

two-level enhancement under subsection (b)(2) and may, depending on the facts of the

case, receive a greater enhancement under such subsection, if the defendant was

convicted under, or the offense involved conduct described in, 18 U.S.C. § 1037.

(C) Undelivered United States Mail.—

(i) In General.—In a case in which undelivered United States mail was taken, or the

taking of such item was an object of the offense, or in a case in which the stolen

property received, transported, transferred, transmitted, or possessed was

undelivered United States mail, "victim" means (I) any victim as defined in 

Application Note 1; or (II) any person who was the intended recipient, or

addressee, of the undelivered United States mail. 

(ii) Special Rule.—A case described in subdivision (C)(i) of this note that involved— 

(I) a United States Postal Service relay box, collection box, delivery

vehicle, satchel, or cart, shall be considered to have involved at least 50

victims.

(II) a housing unit cluster box or any similar receptacle that contains

multiple mailboxes, whether such receptacle is owned by the United

States Postal Service or otherwise owned, shall, unless proven

otherwise, be presumed to have involved the number of victims

corresponding to the number of mailboxes in each cluster box or similar

receptacle.

(iii) Definition.—"Undelivered United States mail" means mail that has not actually

been received by the addressee or the addressee’s agent (e.g., mail taken from

the addressee’s mail box).

(D) Vulnerable Victims.—If subsection (b)(2)(B) or (C) applies, an enhancement under

§3A1.1(b)(2) shall not apply. 

(E) Cases Involving Means of Identification.—For purposes of subsection (b)(2), in a case

involving means of identification "victim" means (i) any victim as defined in Application

Note 1; or (ii) any individual whose means of identification was used unlawfully or

without authority.

5. Enhancement for Business of Receiving and Selling Stolen Property under Subsection

(b)(4).—For purposes of subsection (b)(4), the court shall consider the following non-exhaustive

list of factors in determining whether the defendant was in the business of receiving and selling

stolen property:

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(A) The regularity and sophistication of the defendant’s activities.

(B) The value and size of the inventory of stolen property maintained by the defendant.

(C) The extent to which the defendant’s activities encouraged or facilitated other crimes.

(D) The defendant’s past activities involving stolen property. 

6. Application of Subsection (b)(7).—For purposes of subsection (b)(7), "improper means" includes

the unauthorized harvesting of electronic mail addresses of users of a website, proprietary

service, or other online public forum.

7. Application of Subsection (b)(89).—

(A) In General.—The adjustments in subsection (b)(89) are alternative rather than

cumulative. If, in a particular case, however, more than one of the enumerated factors

applied, an upward departure may be warranted.

(B) Misrepresentations Regarding Charitable and Other Institutions.—Subsection (b)(89)(A)

applies in any case in which the defendant represented that the defendant was acting to

obtain a benefit on behalf of a charitable, educational, religious, or political

organization, or a government agency (regardless of whether the defendant actually was

associated with the organization or government agency) when, in fact, the defendant

intended to divert all or part of that benefit (e.g., for the defendant’s personal gain). 

Subsection (b)(89)(A) applies, for example, to the following: 

(i) A defendant who solicited contributions for a non-existent famine relief

organization. 

(ii) A defendant who solicited donations from church members by falsely claiming to

be a fundraiser for a religiously affiliated school.

(iii) A defendant, chief of a local fire department, who conducted a public fundraiser

representing that the purpose of the fundraiser was to procure sufficient funds

for a new fire engine when, in fact, the defendant intended to divert some of the

funds for the defendant’s personal benefit.

(C) Fraud in Contravention of Prior Judicial Order.—Subsection (b)(89)(C) provides an

enhancement if the defendant commits a fraud in contravention of a prior, official

judicial or administrative warning, in the form of an order, injunction, decree, or

process, to take or not to take a specified action. A defendant who does not comply with

such a prior, official judicial or administrative warning demonstrates aggravated

criminal intent and deserves additional punishment. If it is established that an entity the

defendant controlled was a party to the prior proceeding that resulted in the official

judicial or administrative action, and the defendant had knowledge of that prior decree

or order, this enhancement applies even if the defendant was not a specifically named

party in that prior case. For example, a defendant whose business previously was

enjoined from selling a dangerous product, but who nonetheless engaged in fraudulent

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conduct to sell the product, is subject to this enhancement. This enhancement does not

apply if the same conduct resulted in an enhancement pursuant to a provision found

elsewhere in the guidelines (e.g., a violation of a condition of release addressed in

§3C1.3 (Commission of Offense While on Release) or a violation of probation addressed

in §4A1.1 (Criminal History Category)).

(D) College Scholarship Fraud.—For purposes of subsection (b)(89)(D): 

"Financial assistance" means any scholarship, grant, loan, tuition, discount, award, or

other financial assistance for the purpose of financing an education. 

"Institution of higher education" has the meaning given that term in section 101 of the

Higher Education Act of 1954 (20 U.S.C. § 1001).

(E) Non-Applicability of Chapter Three Adjustments.—

(i) Subsection (b)(89)(A).—If the conduct that forms the basis for an enhancement

under subsection (b)(89)(A) is the only conduct that forms the basis for an 

adjustment under §3B1.3 (Abuse of Position of Trust or Use of Special Skill), do

not apply that adjustment under §3B1.3.

(ii) Subsection (b)(89)(B) and (C).—If the conduct that forms the basis for an

enhancement under subsection (b)(89)(B) or (C) is the only conduct that forms

the basis for an adjustment under §3C1.1 (Obstructing or Impeding the

Administration of Justice), do not apply that adjustment under §3C1.1.

8. Sophisticated Means Enhancement under Subsection (b)(910).—

(A) Definition of United States.—For purposes of subsection (b)(910)(B), "United States"

means each of the 50 states, the District of Columbia, the Commonwealth of Puerto

Rico, the United States Virgin Islands, Guam, the Northern Mariana Islands, and

American Samoa.

(B) Sophisticated Means Enhancement.—For purposes of subsection (b)(910)(C),

"sophisticated means" means especially complex or especially intricate offense conduct

pertaining to the execution or concealment of an offense. For example, in a

telemarketing scheme, locating the main office of the scheme in one jurisdiction but

locating soliciting operations in another jurisdiction ordinarily indicates sophisticated

means. Conduct such as hiding assets or transactions, or both, through the use of

fictitious entities, corporate shells, or offshore financial accounts also ordinarily

indicates sophisticated means.

(C) Non-Applicability of Chapter Three Adjustment.—If the conduct that forms the basis for

an enhancement under subsection (b)(910) is the only conduct that forms the basis for an

adjustment under §3C1.1, do not apply that adjustment under §3C1.1.

9. Application of Subsection (b)(1011).—

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(A) Definitions.—For purposes of subsection (b)(1011):

"Authentication feature" has the meaning given that term in 18 U.S.C. § 1028(d)(1).

"Counterfeit access device" (i) has the meaning given that term in 18 U.S.C.

§ 1029(e)(2); and (ii) includes a telecommunications instrument that has been modified

or altered to obtain unauthorized use of telecommunications service. 

"Device-making equipment" (i) has the meaning given that term in 18 U.S.C.

§ 1029(e)(6); and (ii) includes (I) any hardware or software that has been configured as

described in 18 U.S.C. § 1029(a)(9); and (II) a scanning receiver referred to in 

18 U.S.C. § 1029(a)(8). "Scanning receiver" has the meaning given that term in 18

U.S.C. § 1029(e)(8). 

"Produce" includes manufacture, design, alter, authenticate, duplicate, or assemble. 

"Production" includes manufacture, design, alteration, authentication, duplication, or

assembly.

"Telecommunications service" has the meaning given that term in 18 U.S.C.

§ 1029(e)(9). 

"Unauthorized access device" has the meaning given that term in 18 U.S.C. § 1029(e)(3).

(B) Authentication Features and Identification Documents.—Offenses involving

authentication features, identification documents, false identification documents, and

means of identification, in violation of 18 U.S.C. § 1028, also are covered by this

guideline. If the primary purpose of the offense, under 18 U.S.C. § 1028, was to violate,

or assist another to violate, the law pertaining to naturalization, citizenship, or legal

resident status, apply §2L2.1 (Trafficking in a Document Relating to Naturalization) or 

§2L2.2 (Fraudulently Acquiring Documents Relating to Naturalization), as appropriate,

rather than this guideline.

(C) Application of Subsection (b)(1011)(C)(i).—

(i) In General.—Subsection (b)(1011)(C)(i) applies in a case in which a means of

identification of an individual other than the defendant (or a person for whose

conduct the defendant is accountable under §1B1.3 (Relevant Conduct)) is used 

without that individual’s authorization unlawfully to produce or obtain another

means of identification.

(ii) Examples.—Examples of conduct to which subsection (b)(1011)(C)(i) applies are

as follows:

(I) A defendant obtains an individual’s name and social security number

from a source (e.g., from a piece of mail taken from the individual’s

mailbox) and obtains a bank loan in that individual’s name. In this

example, the account number of the bank loan is the other means of

identification that has been obtained unlawfully.

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(II) A defendant obtains an individual’s name and address from a source

(e.g., from a driver’s license in a stolen wallet) and applies for, obtains,

and subsequently uses a credit card in that individual’s name. In this

example, the credit card is the other means of identification that has

been obtained unlawfully. 

(iii) Non-Applicability of Subsection (b)(1011)(C)(i).—Examples of conduct to which

subsection (b)(1011)(C)(i) does not apply are as follows:

(I) A defendant uses a credit card from a stolen wallet only to make a

purchase. In such a case, the defendant has not used the stolen credit

card to obtain another means of identification.

(II) A defendant forges another individual’s signature to cash a stolen check. 

Forging another individual’s signature is not producing another means

of identification.

(D) Application of Subsection (b)(1011)(C)(ii).—Subsection (b)(1011)(C)(ii) applies in any

case in which the offense involved the possession of 5 or more means of identification

that unlawfully were produced or obtained, regardless of the number of individuals in

whose name (or other identifying information) the means of identification were so

produced or so obtained. 

10. Application of Subsection (b)(1213).—Subsection (b)(1213) provides a minimum offense level in

the case of an ongoing, sophisticated operation (e.g., an auto theft ring or "chop shop") to steal

or to receive stolen (A) vehicles or vehicle parts; or (B) goods or chattels that are part of a cargo

shipment. For purposes of this subsection, "vehicle" means motor vehicle, vessel, or aircraft. A

"cargo shipment" includes cargo transported on a railroad car, bus, steamboat, vessel, or

airplane.

11. Gross Receipts Enhancement under Subsection (b)(1415)(A).—

(A) In General.—For purposes of subsection (b)(1415)(A), the defendant shall be considered

to have derived more than $1,000,000 in gross receipts if the gross receipts to the

defendant individually, rather than to all participants, exceeded $1,000,000. 

(B) Definition.—"Gross receipts from the offense" includes all property, real or personal,

tangible or intangible, which is obtained directly or indirectly as a result of such offense. 

See 18 U.S.C. § 982(a)(4).

12. Application of Subsection (b)(1415)(B).—

(A) Application of Subsection (b)(1415)(B)(i).—The following is a non-exhaustive list of

factors that the court shall consider in determining whether, as a result of the offense,

the safety and soundness of a financial institution was substantially jeopardized:

(i) The financial institution became insolvent. 

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(ii) The financial institution substantially reduced benefits to pensioners or insureds. 

(iii) The financial institution was unable on demand to refund fully any deposit,

payment, or investment.

(iv) The financial institution was so depleted of its assets as to be forced to merge

with another institution in order to continue active operations. 

(B) Application of Subsection (b)(1415)(B)(ii).—

(i) Definition.—For purposes of this subsection, "organization" has the meaning

given that term in Application Note 1 of §8A1.1 (Applicability of Chapter Eight). 

(ii) In General.—The following is a non-exhaustive list of factors that the court shall

consider in determining whether, as a result of the offense, the solvency or

financial security of an organization that was a publicly traded company or that

had more than 1,000 employees was substantially endangered: 

(I) The organization became insolvent or suffered a substantial reduction in

the value of its assets. 

(II) The organization filed for bankruptcy under Chapters 7, 11, or 13 of the

Bankruptcy Code (title 11, United States Code).

(III) The organization suffered a substantial reduction in the value of its

equity securities or the value of its employee retirement accounts. 

(IV) The organization substantially reduced its workforce. 

(V) The organization substantially reduced its employee pension benefits.

(VI) The liquidity of the equity securities of a publicly traded company was

substantially endangered. For example, the company was delisted from

its primary listing exchange, or trading of the company’s securities was

halted for more than one full trading day.

13. Application of Subsection (b)(1617).—

(A) Definitions.—For purposes of subsection (b)(1617):

"Critical infrastructure" means systems and assets vital to national defense, national

security, economic security, public health or safety, or any combination of those matters. 

A critical infrastructure may be publicly or privately owned. Examples of critical

infrastructures include gas and oil production, storage, and delivery systems, water

supply systems, telecommunications networks, electrical power delivery systems,

financing and banking systems, emergency services (including medical, police, fire, and

rescue services), transportation systems and services (including highways, mass transit,

airlines, and airports), and government operations that provide essential services to the

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public. 

"Government entity" has the meaning given that term in 18 U.S.C. § 1030(e)(9).

(B) Subsection (b)(1617)(A)(iii).—If the same conduct that forms the basis for an

enhancement under subsection (b)(1617)(A)(iii) is the only conduct that forms the basis

for an enhancement under subsection (b)(1415)(B), do not apply the enhancement under

subsection (b)(1415)(B).

14. Application of Subsection (b)(1718).—

(A) Definitions.—For purposes of subsection (b)(1718):

"Commodities law" means (i) the Commodity Exchange Act (7 U.S.C. § 1 et seq.) and 18

U.S.C. § 1348; and (ii) includes the rules, regulations, and orders issued by the

Commodity Futures Trading Commission.

"Commodity pool operator" has the meaning given that term in section 1a(5) of the

Commodity Exchange Act (7 U.S.C. § 1a(5)).

"Commodity trading advisor" has the meaning given that term in section 1a(6) of the

Commodity Exchange Act (7 U.S.C. § 1a(6)).

"Futures commission merchant" has the meaning given that term in section 1a(20) of the

Commodity Exchange Act (7 U.S.C. § 1a(20)).

"Introducing broker" has the meaning given that term in section 1a(23) of the

Commodity Exchange Act (7 U.S.C. § 1a(23)). 

"Investment adviser" has the meaning given that term in section 202(a)(11) of the

Investment Advisers Act of 1940 (15 U.S.C. § 80b-2(a)(11)).

"Person associated with a broker or dealer" has the meaning given that term in section

3(a)(18) of the Securities Exchange Act of 1934 (15 U.S.C. § 78c(a)(18)). 

"Person associated with an investment adviser" has the meaning given that term in

section 202(a)(17) of the Investment Advisers Act of 1940 (15 U.S.C. § 80b-2(a)(17)).

"Registered broker or dealer" has the meaning given that term in section 3(a)(48) of the

Securities Exchange Act of 1934 (15 U.S.C. § 78c(a)(48)).

"Securities law" (i) means 18 U.S.C. §§ 1348, 1350, and the provisions of law referred to

in section 3(a)(47) of the Securities Exchange Act of 1934 (15 U.S.C. § 78c(a)(47)); 

and (ii) includes the rules, regulations, and orders issued by the Securities and Exchange

Commission pursuant to the provisions of law referred to in such section.

(B) In General.—A conviction under a securities law or commodities law is not required in

order for subsection (b)(1718) to apply. This subsection would apply in the case of a

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defendant convicted under a general fraud statute if the defendant’s conduct violated a

securities law or commodities law. For example, this subsection would apply if an

officer of a publicly traded company violated regulations issued by the Securities and

Exchange Commission by fraudulently influencing an independent audit of the

company’s financial statements for the purposes of rendering such financial statements

materially misleading, even if the officer is convicted only of wire fraud.

(C) Nonapplicability of §3B1.3 (Abuse of Position of Trust or Use of Special Skill).—If

subsection (b)(1718) applies, do not apply §3B1.3. 

15. Cross Reference in Subsection (c)(3).—Subsection (c)(3) provides a cross reference to another

guideline in Chapter Two (Offense Conduct) in cases in which the defendant is convicted of a

general fraud statute, and the count of conviction establishes an offense involving fraudulent

conduct that is more aptly covered by another guideline. Sometimes, offenses involving

fraudulent statements are prosecuted under 18 U.S.C. § 1001, or a similarly general statute,

although the offense involves fraudulent conduct that is also covered by a more specific statute. 

Examples include false entries regarding currency transactions, for which §2S1.3 (Structuring

Transactions to Evade Reporting Requirements) likely would be more apt, and false statements

to a customs officer, for which §2T3.1 (Evading Import Duties or Restrictions (Smuggling);

Receiving or Trafficking in Smuggled Property) likely would be more apt. In certain other cases,

the mail or wire fraud statutes, or other relatively broad statutes, are used primarily as

jurisdictional bases for the prosecution of other offenses. For example, a state employee who

improperly influenced the award of a contract and used the mails to commit the offense may be

prosecuted under 18 U.S.C. § 1341 for fraud involving the deprivation of the intangible right of

honest services. Such a case would be more aptly sentenced pursuant to §2C1.1 (Offering,

Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right; Fraud

involving the Deprivation of the Intangible Right to Honest Services of Public Officials;

Conspiracy to Defraud by Interference with Governmental Functions).

16. Continuing Financial Crimes Enterprise.—If the defendant is convicted under 18 U.S.C. § 225

(relating to a continuing financial crimes enterprise), the offense level is that applicable to the

underlying series of offenses comprising the "continuing financial crimes enterprise".

17. Partially Completed Offenses.—In the case of a partially completed offense (e.g., an offense

involving a completed theft or fraud that is part of a larger, attempted theft or fraud), the offense

level is to be determined in accordance with the provisions of §2X1.1 (Attempt, Solicitation, or

Conspiracy) whether the conviction is for the substantive offense, the inchoate offense (attempt,

solicitation, or conspiracy), or both. See Application Note 4 of the Commentary to §2X1.1.

18. Multiple-Count Indictments.—Some fraudulent schemes may result in multiple-count

indictments, depending on the technical elements of the offense. The cumulative loss produced

by a common scheme or course of conduct should be used in determining the offense level, 

regardless of the number of counts of conviction. See Chapter Three, Part D (Multiple Counts).

19. Departure Considerations.—

(A) Upward Departure Considerations.—There may be cases in which the offense level

determined under this guideline substantially understates the seriousness of the offense. 

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In such cases, an upward departure may be warranted. The following is a nonexhaustive list of factors that the court may consider in determining whether an upward

departure is warranted:

(i) A primary objective of the offense was an aggravating, non-monetary objective. 

For example, a primary objective of the offense was to inflict emotional harm. 

(ii) The offense caused or risked substantial non-monetary harm. For example, the

offense caused physical harm, psychological harm, or severe emotional trauma,

or resulted in a substantial invasion of a privacy interest (through, for example,

the theft of personal information such as medical, educational, or financial

records). An upward departure would be warranted, for example, in an 18

U.S.C. § 1030 offense involving damage to a protected computer, if, as a result

of that offense, death resulted. An upward departure also would be warranted,

for example, in a case involving animal enterprise terrorism under 18 U.S.C.

§ 43, if, in the course of the offense, serious bodily injury or death resulted, or

substantial scientific research or information were destroyed.

(iii) The offense involved a substantial amount of interest of any kind, finance

charges, late fees, penalties, amounts based on an agreed-upon return or rate of

return, or other similar costs, not included in the determination of loss for

purposes of subsection (b)(1). 

(iv) The offense created a risk of substantial loss beyond the loss determined for

purposes of subsection (b)(1). 

(v) In a case involving stolen information from a "protected computer", as defined

in 18 U.S.C. § 1030(e)(2), the defendant sought the stolen information to further

a broader criminal purpose.

(vi) In a case involving access devices or unlawfully produced or unlawfully

obtained means of identification:

(I) The offense caused substantial harm to the victim’s reputation or credit

record, or the victim suffered a substantial inconvenience related to

repairing the victim’s reputation or a damaged credit record. 

(II) An individual whose means of identification the defendant used to obtain

unlawful means of identification is erroneously arrested or denied a job

because an arrest record has been made in that individual’s name.

(III) The defendant produced or obtained numerous means of identification

with respect to one individual and essentially assumed that individual’s

identity.

(B) Upward Departure for Debilitating Impact on a Critical Infrastructure.—An upward

departure would be warranted in a case in which subsection (b)(1617)(A)(iii) applies

and the disruption to the critical infrastructure(s) is so substantial as to have a

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debilitating impact on national security, national economic security, national public

health or safety, or any combination of those matters.

(C) Downward Departure Consideration.—There may be cases in which the offense level

determined under this guideline substantially overstates the seriousness of the offense. 

In such cases, a downward departure may be warranted.

(D) Downward Departure for Major Disaster or Emergency Victims.—If (i) the minimum

offense level of level 12 in subsection (b)(1112) applies; (ii) the defendant sustained

damage, loss, hardship, or suffering caused by a major disaster or an emergency as

those terms are defined in 42 U.S.C. § 5122; and (iii) the benefits received illegally were

only an extension or overpayment of benefits received legitimately, a downward

departure may be warranted.

Background: This guideline covers offenses involving theft, stolen property, property damage or

destruction, fraud, forgery, and counterfeiting (other than offenses involving altered or counterfeit

bearer obligations of the United States). 

Because federal fraud statutes often are broadly written, a single pattern of offense conduct

usually can be prosecuted under several code sections, as a result of which the offense of conviction may

be somewhat arbitrary. Furthermore, most fraud statutes cover a broad range of conduct with extreme

variation in severity. The specific offense characteristics and cross references contained in this

guideline are designed with these considerations in mind.

The Commission has determined that, ordinarily, the sentences of defendants convicted of

federal offenses should reflect the nature and magnitude of the loss caused or intended by their 

crimes. Accordingly, along with other relevant factors under the guidelines, loss serves as a measure of

the seriousness of the offense and the defendant’s relative culpability and is a principal factor in

determining the offense level under this guideline.

Theft from the person of another, such as pickpocketing or non-forcible purse-snatching,

receives an enhanced sentence because of the increased risk of physical injury. This guideline does not

include an enhancement for thefts from the person by means of force or fear; such crimes are robberies

and are covered under §2B3.1 (Robbery). 

A minimum offense level of level 14 is provided for offenses involving an organized scheme to

steal vehicles or vehicle parts. Typically, the scope of such activity is substantial, but the value of the

property may be particularly difficult to ascertain in individual cases because the stolen property is

rapidly resold or otherwise disposed of in the course of the offense. Therefore, the specific offense

characteristic of "organized scheme" is used as an alternative to "loss" in setting a minimum offense

level.

Use of false pretenses involving charitable causes and government agencies enhances the

sentences of defendants who take advantage of victims’ trust in government or law enforcement agencies

or the generosity and charitable motives of victims. Taking advantage of a victim’s self-interest does not

mitigate the seriousness of fraudulent conduct; rather, defendants who exploit victims’ charitable

impulses or trust in government create particular social harm. In a similar vein, a defendant who has

been subject to civil or administrative proceedings for the same or similar fraudulent conduct

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demonstrates aggravated criminal intent and is deserving of additional punishment for not conforming

with the requirements of judicial process or orders issued by federal, state, or local administrative

agencies.

Offenses that involve the use of financial transactions or financial accounts outside the United

States in an effort to conceal illicit profits and criminal conduct involve a particularly high level of

sophistication and complexity. These offenses are difficult to detect and require costly investigations and

prosecutions. Diplomatic processes often must be used to secure testimony and evidence beyond the

jurisdiction of United States courts. Consequently, a minimum offense level of level 12 is provided for

these offenses.

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

105–101 and the directive to the Commission in section 3 of Public Law 110–384.

Subsection (b)(8) implements the directive to the Commission in section 10606 of Public Law

111–148.

Subsection (b)(89)(D) implements, in a broader form, the directive in section 3 of the College

Scholarship Fraud Prevention Act of 2000, Public Law 106–420.

Subsection (b)(910) implements, in a broader form, the instruction to the Commission in section

6(c)(2) of Public Law 105–184.

Subsections (b)(1011)(A)(i) and (B)(i) implement the instruction to the Commission in section 4

of the Wireless Telephone Protection Act, Public Law 105–172.

Subsection (b)(1011)(C) implements the directive to the Commission in section 4 of the Identity

Theft and Assumption Deterrence Act of 1998, Public Law 105–318. This subsection focuses principally

on an aggravated form of identity theft known as "affirmative identity theft" or "breeding", in which a

defendant uses another individual’s name, social security number, or some other form of identification

(the "means of identification") to "breed" (i.e., produce or obtain) new or additional forms of

identification. Because 18 U.S.C. § 1028(d) broadly defines "means of identification", the new or

additional forms of identification can include items such as a driver’s license, a credit card, or a bank

loan. This subsection provides a minimum offense level of level 12, in part because of the seriousness of

the offense. The minimum offense level accounts for the fact that the means of identification that were

"bred" (i.e., produced or obtained) often are within the defendant’s exclusive control, making it difficult

for the individual victim to detect that the victim’s identity has been "stolen." Generally, the victim does

not become aware of the offense until certain harms have already occurred (e.g., a damaged credit

rating or an inability to obtain a loan). The minimum offense level also accounts for the non-monetary

harm associated with these types of offenses, much of which may be difficult or impossible to quantify

(e.g., harm to the individual’s reputation or credit rating, inconvenience, and other difficulties resulting

from the offense). The legislative history of the Identity Theft and Assumption Deterrence Act of 1998

indicates that Congress was especially concerned with providing increased punishment for this type of

harm.

Subsection (b)(1112) implements the directive in section 5 of Public Law 110–179.

Subsection (b)(1314)(B) implements, in a broader form, the instruction to the Commission in

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section 110512 of Public Law 103–322.

Subsection (b)(1415)(A) implements, in a broader form, the instruction to the Commission in

section 2507 of Public Law 101–647.

Subsection (b)(1415)(B)(i) implements, in a broader form, the instruction to the Commission in

section 961(m) of Public Law 101–73.

Subsection (b)(1516) implements the directive in section 209 of Public Law 110–326.

Subsection (b)(1617) implements the directive in section 225(b) of Public Law 107–296. The

minimum offense level of level 24 provided in subsection (b)(1617)(B) for an offense that resulted in a

substantial disruption of a critical infrastructure reflects the serious impact such an offense could have

on national security, national economic security, national public health or safety, or a combination of

any of these matters.

* * *

§3B1.2. Mitigating Role

* * *

Commentary

Application Notes:

* * *

3. Applicability of Adjustment.—

(A) Substantially Less Culpable than Average Participant.—This section provides a range of

adjustments for a defendant who plays a part in committing the offense that makes him

substantially less culpable than the average participant. 

A defendant who is accountable under §1B1.3 (Relevant Conduct) only for the conduct

in which the defendant personally was involved and who performs a limited function in

concerted criminal activity is not precluded from consideration for an adjustment under

this guideline. For example, a defendant who is convicted of a drug trafficking offense,

whose role in that offense was limited to transporting or storing drugs and who is

accountable under §1B1.3 only for the quantity of drugs the defendant personally

transported or stored is not precluded from consideration for an adjustment under this

guideline.

Likewise, a defendant who is accountable under §1B1.3 for a loss amount under §2B1.1

(Theft, Property Destruction, and Fraud) that greatly exceeds the defendant's personal

gain from a fraud offense and who had limited knowledge of the scope of the scheme is

not precluded from consideration for an adjustment under this guideline. For example,

a defendant in a health care fraud scheme, whose role in the scheme was limited to

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serving as a nominee owner and who received little personal gain relative to the loss

amount, is not precluded from consideration for an adjustment under this guideline.

* * *

APPENDIX A - STATUTORY INDEX

* * *

12 U.S.C. § 4641 2J1.1, 2J1.5

12 U.S.C. § 5382 2H3.1

* * *

15 U.S.C. § 78u(c) 2J1.1, 2J1.5

15 U.S.C. § 78jjj(c)(1),(2) 2B1.1

15 U.S.C. § 78jjj(d) 2B1.1

* * *

29 U.S.C. § 1131(a) 2E5.3

29 U.S.C. § 1141 2B1.1, 2B3.2

29 U.S.C. § 1149 2B1.1

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EXHIBIT H

PROPOSED AMENDMENT: ROLE

Synopsis of Proposed Amendment: The proposed amendment deletes two sentences from the commentary

to §3B1.2 (Mitigating Role).

In Application Note 3(C), it deletes "As with any other factual issue, the court, in weighing the totality of the

circumstances, is not required to find, based solely on the defendant’s bare assertion, that such a role

adjustment is warranted," while retaining the "totality of the circumstances" language by incorporating it

into the preceding sentence. In Application Note 4, it deletes "It is intended that the downward adjustment

for a minimal participant will be used infrequently." 

The sentences are unnecessary, and concerns have been raised by some that they may have the unintended

result of discouraging courts from applying the adjustment.

Proposed Amendment:

§3B1.2. Mitigating Role

Based on the defendant’s role in the offense, decrease the offense level as follows:

(a) If the defendant was a minimal participant in any criminal activity, decrease by 4

levels.

(b) If the defendant was a minor participant in any criminal activity, decrease by

2 levels.

In cases falling between (a) and (b), decrease by 3 levels.

Commentary

Application Notes:

1. Definition.—For purposes of this guideline, "participant" has the meaning given that term in

Application Note 1 of §3B1.1 (Aggravating Role).

2. Requirement of Multiple Participants.—This guideline is not applicable unless more than one

participant was involved in the offense. See the Introductory Commentary to this Part (Role in

the Offense). Accordingly, an adjustment under this guideline may not apply to a defendant who

is the only defendant convicted of an offense unless that offense involved other participants in

addition to the defendant and the defendant otherwise qualifies for such an adjustment. 

3. Applicability of Adjustment.—

(A) Substantially Less Culpable than Average Participant.—This section provides a range of

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adjustments for a defendant who plays a part in committing the offense that makes him

substantially less culpable than the average participant. 

A defendant who is accountable under §1B1.3 (Relevant Conduct) only for the conduct

in which the defendant personally was involved and who performs a limited function in

concerted criminal activity is not precluded from consideration for an adjustment under

this guideline. For example, a defendant who is convicted of a drug trafficking offense,

whose role in that offense was limited to transporting or storing drugs and who is

accountable under §1B1.3 only for the quantity of drugs the defendant personally

transported or stored is not precluded from consideration for an adjustment under this

guideline.

(B) Conviction of Significantly Less Serious Offense.—If a defendant has received a lower

offense level by virtue of being convicted of an offense significantly less serious than

warranted by his actual criminal conduct, a reduction for a mitigating role under this

section ordinarily is not warranted because such defendant is not substantially less

culpable than a defendant whose only conduct involved the less serious offense. For

example, if a defendant whose actual conduct involved a minimal role in the distribution

of 25 grams of cocaine (an offense having a Chapter Two offense level of level 14 under

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

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

of simple possession of cocaine (an offense having a Chapter Two offense level of level 6

under §2D2.1 (Unlawful Possession; Attempt or Conspiracy)), no reduction for a

mitigating role is warranted because the defendant is not substantially less culpable than

a defendant whose only conduct involved the simple possession of cocaine.

(C) Fact-Based Determination.—The determination whether to apply subsection (a) or

subsection (b), or an intermediate adjustment, is based on the totality of the

circumstances and involves a determination that is heavily dependent upon the facts of

the particular case. As with any other factual issue, the court, in weighing the totality of

the circumstances, is not required to find, based solely on the defendant’s bare assertion,

that such a role adjustment is warranted.

4. Minimal Participant.—Subsection (a) applies to a defendant described in Application Note 3(A)

who plays a minimal role in concerted activity. It is intended to cover defendants who are

plainly among the least culpable of those involved in the conduct of a group. Under this

provision, the defendant’s lack of knowledge or understanding of the scope and structure of the

enterprise and of the activities of others is indicative of a role as minimal participant. It is

intended that the downward adjustment for a minimal participant will be used infrequently. 

5. Minor Participant.— Subsection (b) applies to a defendant described in Application Note 3(A)

who is less culpable than most other participants, but whose role could not be described as

minimal.

6. Application of Role Adjustment in Certain Drug Cases.—In a case in which the court applied

§2D1.1 and the defendant’s base offense level under that guideline was reduced by operation of

the maximum base offense level in §2D1.1(a)(5), the court also shall apply the appropriate

adjustment under this guideline.

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EXHIBIT I

PROPOSED AMENDMENT: DRUG DISPOSAL ACT

Synopsis of Proposed Amendment: This proposed amendment amends the Commentary to §2D1.1

(Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to

Commit These Offenses); Attempt or Conspiracy) in response to the Secure and Responsible Drug

Disposal Act of 2010, Pub. L. 111–273.

Section 3 of the Act amended 21 U.S.C. § 822 to authorize certain persons in possession of controlled

substances (e.g., ultimate users and long-term care facilities) to deliver the controlled substances for the

purpose of disposal. Section 4 of the Act contained a directive to the Commission to "review and, if

appropriate, amend" the guidelines to ensure that the guidelines provide "an appropriate penalty

increase of up to 2 offense levels above the sentence otherwise applicable in Part D of the Guidelines

Manual if a person is convicted of a drug offense resulting from the authorization of that person to

receive scheduled substances from an ultimate user or long-term care facility as set forth in the

amendments made by section 3."

The proposed amendment implements the directive by amending Application Note 8 to §2D1.1 to provide

that an adjustment under §3B1.3 (Abuse of Position of Trust or Use of Special Skill) ordinarily would

apply in a case in which the defendant is convicted of a drug offense resulting from the authorization of

the defendant to receive scheduled substances from an ultimate user or long-term care facility.

Proposed Amendment:

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

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

* * *

Commentary

* * *

Application Notes:

* * *

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. Likewise, an adjustment under §3B1.3

ordinarily would apply in a case in which the defendant is convicted of a drug offense resulting

from the authorization of the defendant to receive scheduled substances from an ultimate user or

long-term care facility. See 21 U.S.C. § 822(g).

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Note, however, that if an adjustment from subsection (b)(2)(C) applies, do not apply §3B1.3

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

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EXHIBIT J

PROPOSED AMENDMENT: FAIR SENTENCING ACT

Synopsis of Proposed Amendment: This multi-part proposed amendment continues the Commission's

work on the Fair Sentencing Act of 2010, Pub. L. 111–220 (the "Act").

In October 2010, to implement the emergency directive in section 8 of the Act, the Commission

promulgated emergency, temporary revisions to §2D1.1 (Unlawful Manufacturing, Importing, Exporting,

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

§2D2.1 (Unlawful Possession; Attempt or Conspiracy). Conforming changes to certain other guidelines

were also promulgated on an emergency, temporary basis. See USSG App. C, Amendment 748 (effective

November 1, 2010). The proposed amendment re-promulgates the emergency, temporary revisions.

Changes to the Drug Quantity Table for Offenses Involving Crack Cocaine

Part A re-promulgates without change the emergency, temporary revisions to the Drug Quantity Table

for offenses involving cocaine base ("crack" cocaine), and the related revisions to Application Note 10 to

§2D1.1. This responds to section 2 of the Act, which reduced the statutory penalties for offenses

involving manufacturing or trafficking in crack cocaine by increasing the quantity thresholds required to

trigger a mandatory minimum term of imprisonment. The quantity threshold required to trigger the 5-

year mandatory minimum term of imprisonment was increased from 5 grams to 28 grams, and the

quantity threshold required to trigger the 10-year mandatory minimum term of imprisonment was

increased from 50 grams to 280 grams. See 21 U.S.C. §§ 841(b)(1)(A), (B), (C), 960(b)(1), (2), (3).

To account for these statutory changes, the proposed amendment conforms the guideline penalty

structure for crack cocaine offenses to the approach followed for other drugs, i.e., the base offense levels

for crack cocaine are set in the Drug Quantity Table so that the statutory minimum penalties correspond

to levels 26 and 32. See generally §2D1.1, comment. (backg'd.). Accordingly, using the new drug

quantities established by the Act, offenses involving 28 grams or more of crack cocaine are assigned a

base offense level of 26, offenses involving 280 grams or more of crack cocaine are assigned a base

offense level of 32, and other offense levels are established by extrapolating upward and downward. 

Conforming to this approach ensures that the relationship between the statutory penalties for crack

cocaine offenses and the statutory penalties for offenses involving other drugs is consistently and

proportionally reflected throughout the Drug Quantity Table.

To provide a means of obtaining a single offense level in cases involving crack cocaine and one or more

other controlled substances, the proposed amendment also establishes a marihuana equivalency for

crack cocaine under which 1 gram of crack cocaine is equivalent to 3,571 grams of marihuana. (The

marihuana equivalency for any controlled substance is a constant that can be calculated using any

threshold in the Drug Quantity Table by dividing the amount of marihuana corresponding to that

threshold by the amount of the other controlled substance corresponding to that threshold. For example,

the threshold quantities at base offense level 26 are 100,000 grams of marihuana and 28 grams of crack

cocaine; 100,000 grams divided by 28 is 3,571 grams.) In the commentary to §2D1.1, the proposed

amendment makes a conforming change to the rules for cases involving both crack cocaine and one or

more other controlled substances. The proposed amendment deletes the special rules in Note 10(D) for

cases involving crack cocaine and one or more other controlled substances, and revises Note 10(C) so

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that it provides an example of such a case.

Aggravating and Mitigating Factors in Drug Trafficking Cases

Part B re-promulgates the emergency, temporary revisions to §2D1.1 and accompanying commentary

that account for certain aggravating and mitigating factors in drug trafficking cases. These changes

implement directives to the Commission in sections 5, 6, and 7 of the Act. The emergency revisions are

re-promulgated without change, except for the new Application Note 28 (relating to the new

enhancement for maintaining a premises), as explained below.

First, Part B amends §2D1.1 to add a sentence at the end of subsection (a)(5) (often referred to as the

"mitigating role cap"). The new provision provides that if the offense level otherwise resulting from

subsection (a)(5) is greater than level 32, and the defendant receives the 4-level ("minimal participant")

reduction in subsection (a) of §3B1.2 (Mitigating Role), the base offense level shall be decreased to level

32. This provision responds to section 7(1) of the Act, which directed the Commission 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".

Second, Part B amends §2D1.1 to create a new specific offense characteristic at subsection (b)(2)

providing an enhancement of 2 levels if the defendant used violence, made a credible threat to use

violence, or directed the use of violence. The new specific offense characteristic responds to section 5 of

the Act, which directed the Commission 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 also revises the commentary to §2D1.1 to clarify how this new specific offense

characteristic interacts with subsection (b)(1). Specifically, Application Note 3 is amended to provide

that the enhancements in subsections (b)(1) (regarding possession of a dangerous weapon) and (b)(2)

may be applied cumulatively. However, in a case in which the defendant merely possessed a dangerous

weapon but did not use violence, make a credible threat to use violence, or direct the use of violence,

subsection (b)(2) would not apply.

In addition, the proposed amendment makes a conforming change to the commentary to §2K2.4 (Use of

Firearm, Armor-Piercing Ammunition, or Explosive During or in Relation to Certain Crimes) to address

cases in which the defendant is sentenced under both §2D1.1 (for a drug trafficking offense) and §2K2.4

(for an offense under 18 U.S.C. § 924(c)). In such a case, the sentence under §2K2.4 accounts for any

weapon enhancement; therefore, in determining the sentence under §2D1.1, the weapon enhancement in

§2D1.1(b)(1) does not apply. See §2K2.4, comment. (n. 4). The proposed amendment amends this

commentary to similarly provide that, in a case in which the defendant is sentenced under both §§2D1.1

and 2K2.4, the new enhancement at §2D1.1(b)(2) also is accounted for by §2K2.4 and, therefore, does

not apply.

Third, Part B amends §2D1.1 to create a new specific offense characteristic at subsection (b)(11)

providing an enhancement of 2 levels if the defendant bribed, or attempted to bribe, a law enforcement

officer to facilitate the commission of the offense. The new specific offense characteristic responds to

section 6(1) of the Act, which directed the Commission "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". 

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The proposed amendment also revises the commentary to §2D1.1 to clarify how this new specific offense

characteristic interacts with the adjustment at §3C1.1 (Obstructing or Impeding the Administration of

Justice). Specifically, new Application Note 27 provides that subsection (b)(11) does not apply if the

purpose of the bribery was to obstruct or impede the investigation, prosecution, or sentencing of the

defendant because such conduct is covered by §3C1.1.

Fourth, Part B amends §2D1.1 to create a new specific offense characteristic at subsection (b)(12)

providing an enhancement of 2 levels if the defendant maintained a premises for the purpose of

manufacturing or distributing a controlled substance. The new specific offense characteristic responds

to section 6(2) of the Act, which directed the Commission 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 also adds commentary in §2D1.1 at Application Note 28 providing that the

enhancement applies to a defendant who knowingly maintains a premises (i.e., a building, room, or

enclosure) for the purpose of maintaining or distributing a controlled substance, including storage of a

controlled substance for the purpose of distribution.

Application Note 28 also provides that among the factors the court should consider in determining

whether the defendant "maintained" the premises are (A) whether the defendant held a possessory

interest (e.g., owned or rented) the premises and (B) the extent to which the defendant controlled access

to, or activities at, the premises. Application Note 28 also provides that manufacturing or distributing a

controlled substance need not be the sole purpose for which the premises was maintained, but must be

one of the defendant’s primary or principal uses for the premises, rather than one of the defendant’s

incidental or collateral uses of the premises. In making this determination, the court should consider

how frequently the premises was used by the defendant for manufacturing or distributing a controlled

substance and how frequently the premises was used by the defendant for lawful purposes.

Fifth, Part B amends §2D1.1 to create a new specific offense characteristic at subsection (b)(14) that

provides an enhancement of 2 levels if the defendant receives an adjustment under §3B1.1 (Aggravating

Role) and the offense involved one or more of five specified factors. The new specific offense

characteristic responds to section 6(3) of the Act, which directed the Commission "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;

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(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.

(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."

The proposed amendment also revises the commentary to §2D1.1 to provide guidance in applying the

new specific offense characteristic at §2D1.1(b)(14). Specifically, new Application Note 29 provides that

if the defendant distributes a controlled substance to an individual or involves an individual in the

offense, as specified in subsection (b)(14)(B), the individual is not a "vulnerable victim" for purposes of

subsection (b) of §3A1.1 (Hate Crime Motivation or Vulnerable Victim). Application Note 29 also

provides that subsection (b)(14)(C) applies if the defendant committed, aided, abetted, counseled,

commanded, induced, procured, or willfully caused the importation of a controlled substance. 

Subsection (b)(14)(C), however, does not apply if subsection (b)(3) or (b)(5) (as redesignated by the

proposed amendment) applies because the defendant’s involvement in importation is adequately

accounted for by those subsections. In addition, Application Note 29 defines "pattern of criminal

conduct" and "engaged in as a livelihood" for purposes of subsection (b)(14)(E) as those terms are

defined in §4B1.3 (Criminal Livelihood). 

The proposed amendment also revises the commentary in §3B1.4 (Using a Minor To Commit a Crime)

and §3C1.1 (Obstructing or Impeding the Administration of Justice) to specify how those adjustments

interact with §2D1.1(b)(14)(B) and (D), respectively. Specifically, Application Note 2 to §3B1.4 is

amended to clarify that the increase of two levels under this section would not apply if the defendant

receives an enhancement under §2D1.1(b)(14)(B). Similarly, Application Note 7 to §3C1.1 is amended

to clarify that the increase of two levels under this section would not apply if the defendant receives an

enhancement under §2D1.1(b)(14)(D).

Sixth, Part B amends §2D1.1 to create a new specific offense characteristic providing a 2-level

downward adjustment if the defendant receives the 4-level ("minimal participant") reduction in

subsection (a) of §3B1.2 (Mitigating Role) and the offense involved each of three additional specified

factors: namely, the defendant was motivated by an intimate or familial relationship or by threats or fear

to commit the offense when the defendant was otherwise unlikely to commit such an offense; was to

receive no monetary compensation from the illegal purchase, sale, transport, or storage of controlled

substances; and had minimal knowledge of the scope and structure of the enterprise. The specific

offense characteristic responds to section 7(2) of the Act, which directed the Commission to ensure that

-83-
"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."

Seventh, to reflect the renumbering of specific offense characteristics in §2D1.1(b) by the proposed

amendment, technical and conforming changes are made to the commentary to §2D1.1 and to §2D1.14

(Narco-Terrorism).

Simple Possession of Crack Cocaine

Part C re-promulgates without change the emergency, temporary revisions to §2D2.1 to account for the

changes in the statutory penalties for simple possession of crack cocaine made in section 3 of the Act. 

Section 3 of the Act 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). To account for this statutory change, the proposed

amendment deletes the cross reference at §2D2.1(b)(1) under which an offender who possessed more

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

Proposed Amendment:

(A) Changes to Drug Quantity Table for Offenses Involving Cocaine Base ("Crack"

Cocaine)

[for formatting reasons, the changes to the Drug Quantity Table begin at the top of the following page]

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(c) DRUG QUANTITY TABLE

Controlled Substances and Quantity* Base Offense Level

(1) M 30 KG or more of Heroin;

M 150 KG or more of Cocaine;

M 4.58.4 KG or more of Cocaine Base;

M 30 KG or more of PCP, or 3 KG or more of PCP (actual);

M 15 KG or more of Methamphetamine, or 1.5 KG or more of 

 Methamphetamine (actual), or 1.5 KG or more of "Ice";

M 15 KG or more of Amphetamine, or 1.5 KG or more of Amphetamine (actual);

M 300 G or more of LSD;

M 12 KG or more of Fentanyl;

M 3 KG or more of a Fentanyl Analogue;

M 30,000 KG or more of Marihuana;

M 6,000 KG or more of Hashish;

M 600 KG or more of Hashish Oil;

M 30,000,000 units or more of Ketamine;

M 30,000,000 units or more of Schedule I or II Depressants;

M 1,875,000 units or more of Flunitrazepam.

Level 38

(2) M At least 10 KG but less than 30 KG of Heroin;

M At least 50 KG but less than 150 KG of Cocaine;

M At least 1.52.8 KG but less than 4.58.4 KG of Cocaine Base;

M At least 10 KG but less than 30 KG of PCP, or at least 1 KG but less than 3 

 KG of PCP (actual);

M At least 5 KG but less than 15 KG of Methamphetamine, or at least 500 G but 

 less than 1.5 KG of Methamphetamine (actual), or at least 500 G but less than 

 1.5 KG of "Ice";

M At least 5 KG but less than 15 KG of Amphetamine, or at least 500 G but less 

 than 1.5 KG of Amphetamine (actual); 

M At least 100 G but less than 300 G of LSD;

M At least 4 KG but less than 12 KG of Fentanyl;

M At least 1 KG but less than 3 KG of a Fentanyl Analogue;

M At least 10,000 KG but less than 30,000 KG of Marihuana;

M At least 2,000 KG but less than 6,000 KG of Hashish;

M At least 200 KG but less than 600 KG of Hashish Oil;

M At least 10,000,000 but less than 30,000,000 units of Ketamine;

M At least 10,000,000 but less than 30,000,000 units of Schedule I or II 

 Depressants;

M At least 625,000 but less than 1,875,000 units of Flunitrazepam.

Level 36

(3) M At least 3 KG but less than 10 KG of Heroin;

M At least 15 KG but less than 50 KG of Cocaine;

M At least 500840 G but less than 1.52.8 KG of Cocaine Base;

M At least 3 KG but less than 10 KG of PCP, or at least 300 G but less than 1 

 KG of PCP (actual);

M At least 1.5 KG but less than 5 KG of Methamphetamine, or at least 150 G but 

 less than 500 G of Methamphetamine (actual), or at least 150 G but less than 

Level 34

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 500 G of "Ice";

M At least 1.5 KG but less than 5 KG of Amphetamine, or at least 150 G but less 

 than 500 G of Amphetamine (actual);

M At least 30 G but less than 100 G of LSD;

M At least 1.2 KG but less than 4 KG of Fentanyl;

M At least 300 G but less than 1 KG of a Fentanyl Analogue;

M At least 3,000 KG but less than 10,000 KG of Marihuana;

M At least 600 KG but less than 2,000 KG of Hashish;

M At least 60 KG but less than 200 KG of Hashish Oil;

M At least 3,000,000 but less than 10,000,000 units of Ketamine;

M At least 3,000,000 but less than 10,000,000 units of Schedule I or II

Depressants;

M At least 187,500 but less than 625,000 units of Flunitrazepam.

(4) M At least 1 KG but less than 3 KG of Heroin;

M At least 5 KG but less than 15 KG of Cocaine;

M At least 150280 G but less than 500840 G of Cocaine Base;

M At least 1 KG but less than 3 KG of PCP, or at least 100 G but less than 300 G 

 of PCP (actual);

M At least 500 G but less than 1.5 KG of Methamphetamine, or at least 50 G but 

 less than 150 G of Methamphetamine (actual), or at least 50 G but less than 

 150 G of "Ice";

M At least 500 G but less than 1.5 KG of Amphetamine, or at least 50 G but less 

 than 150 G of Amphetamine (actual); 

M At least 10 G but less than 30 G of LSD;

M At least 400 G but less than 1.2 KG of Fentanyl;

M At least 100 G but less than 300 G of a Fentanyl Analogue;

M At least 1,000 KG but less than 3,000 KG of Marihuana;

M At least 200 KG but less than 600 KG of Hashish;

M At least 20 KG but less than 60 KG of Hashish Oil;

M At least 1,000,000 but less than 3,000,000 units of Ketamine;

M At least 1,000,000 but less than 3,000,000 units of Schedule I or II

Depressants;

M At least 62,500 but less than 187,500 units of Flunitrazepam.

Level 32

(5) M At least 700 G but less than 1 KG of Heroin;

M At least 3.5 KG but less than 5 KG of Cocaine;

M At least 50196 G but less than 150280 G of Cocaine Base;

M At least 700 G but less than 1 KG of PCP, or at least 70 G but less than 100 G 

 of PCP (actual);

M At least 350 G but less than 500 G of Methamphetamine, or at least 35 G but 

 less than 50 G of Methamphetamine (actual), or at least 35 G but less than 

 50 G of "Ice";

M At least 350 G but less than 500 G of Amphetamine, or at least 35 G but less 

 than 50 G of Amphetamine (actual); 

M At least 7 G but less than 10 G of LSD;

M At least 280 G but less than 400 G of Fentanyl;

M At least 70 G but less than 100 G of a Fentanyl Analogue;

M At least 700 KG but less than 1,000 KG of Marihuana;

M At least 140 KG but less than 200 KG of Hashish;

Level 30

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M At least 14 KG but less than 20 KG of Hashish Oil;

M At least 700,000 but less than 1,000,000 units of Ketamine;

M At least 700,000 but less than 1,000,000 units of Schedule I or II Depressants;

M 700,000 or more units of Schedule III Hydrocodone;

M At least 43,750 but less than 62,500 units of Flunitrazepam.

(6) M At least 400 G but less than 700 G of Heroin;

M At least 2 KG but less than 3.5 KG of Cocaine;

M At least 35112 G but less than 50196 G of Cocaine Base;

M At least 400 G but less than 700 G of PCP, or at least 40 G but less than 70 G 

 of PCP (actual);

M At least 200 G but less than 350 G of Methamphetamine, or at least 20 G but 

 less than 35 G of Methamphetamine (actual), or at least 20 G but less than 

 35 G of "Ice";

M At least 200 G but less than 350 G of Amphetamine, or at least 20 G but less 

 than 35 G of Amphetamine (actual);

M At least 4 G but less than 7 G of LSD;

M At least 160 G but less than 280 G of Fentanyl; 

M At least 40 G but less than 70 G of a Fentanyl Analogue;

M At least 400 KG but less than 700 KG of Marihuana;

M At least 80 KG but less than 140 KG of Hashish;

M At least 8 KG but less than 14 KG of Hashish Oil;

M At least 400,000 but less than 700,000 units of Ketamine;

M At least 400,000 but less than 700,000 units of Schedule I or II Depressants;

M At least 400,000 but less than 700,000 units of Schedule III Hydrocodone;

M At least 25,000 but less than 43,750 units of Flunitrazepam.

Level 28

(7) M At least 100 G but less than 400 G of Heroin;

M At least 500 G but less than 2 KG of Cocaine;

M At least 2028 G but less than 35112 G of Cocaine Base;

M At least 100 G but less than 400 G of PCP, or at least 10 G but less than 40 G 

 of PCP (actual);

M At least 50 G but less than 200 G of Methamphetamine, or at least 5 G but less 

 than 20 G of Methamphetamine (actual), or at least 5 G but less than 20 G of 

 "Ice";

M At least 50 G but less than 200 G of Amphetamine, or at least 5 G but less than 

 20 G of Amphetamine (actual);

M At least 1 G but less than 4 G of LSD;

M At least 40 G but less than 160 G of Fentanyl; 

M At least 10 G but less than 40 G of a Fentanyl Analogue;

M At least 100 KG but less than 400 KG of Marihuana;

M At least 20 KG but less than 80 KG of Hashish;

M At least 2 KG but less than 8 KG of Hashish Oil;

M At least 100,000 but less than 400,000 units of Ketamine;

M At least 100,000 but less than 400,000 units of Schedule I or II Depressants;

M At least 100,000 but less than 400,000 units of Schedule III Hydrocodone;

M At least 6,250 but less than 25,000 units of Flunitrazepam.

Level 26

(8)

M At least 80 G but less than 100 G of Heroin;

M At least 400 G but less than 500 G of Cocaine;

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M At least 522.4 G but less than 2028 G of Cocaine Base;

M At least 80 G but less than 100 G of PCP, or at least 8 G but less than 10 G of 

 PCP (actual);

M At least 40 G but less than 50 G of Methamphetamine, or at least 4 G but less 

 than 5 G of Methamphetamine (actual), or at least 4 G but less than 5 G of 

 "Ice";

M At least 40 G but less than 50 G of Amphetamine, or at least 4 G but less than 

 5 G of Amphetamine (actual); 

M At least 800 MG but less than 1 G of LSD;

M At least 32 G but less than 40 G of Fentanyl; 

M At least 8 G but less than 10 G of a Fentanyl Analogue;

M At least 80 KG but less than 100 KG of Marihuana;

M At least 16 KG but less than 20 KG of Hashish;

M At least 1.6 KG but less than 2 KG of Hashish Oil;

M At least 80,000 but less than 100,000 units of Ketamine;

M At least 80,000 but less than 100,000 units of Schedule I or II Depressants;

M At least 80,000 but less than 100,000 units of Schedule III Hydrocodone;

M At least 5,000 but less than 6,250 units of Flunitrazepam.

Level 24

(9) M At least 60 G but less than 80 G of Heroin;

M At least 300 G but less than 400 G of Cocaine;

M At least 416.8 G but less than 522.4 G of Cocaine Base;

M At least 60 G but less than 80 G of PCP, or at least 6 G but less than 8 G of 

 PCP (actual);

M At least 30 G but less than 40 G of Methamphetamine, or at least 3 G but less 

 than 4 G of Methamphetamine (actual), or at least 3 G but less than 4 G of 

 "Ice";

M At least 30 G but less than 40 G of Amphetamine, or at least 3 G but less than 

 4 G of Amphetamine (actual); 

M At least 600 MG but less than 800 MG of LSD;

M At least 24 G but less than 32 G of Fentanyl; 

M At least 6 G but less than 8 G of a Fentanyl Analogue;

M At least 60 KG but less than 80 KG of Marihuana;

M At least 12 KG but less than 16 KG of Hashish;

M At least 1.2 KG but less than 1.6 KG of Hashish Oil;

M At least 60,000 but less than 80,000 units of Ketamine;

M At least 60,000 but less than 80,000 units of Schedule I or II Depressants;

M At least 60,000 but less than 80,000 units of Schedule III Hydrocodone;

M At least 3,750 but less than 5,000 units of Flunitrazepam.

Level 22

(10) M At least 40 G but less than 60 G of Heroin;

M At least 200 G but less than 300 G of Cocaine;

M At least 311.2 G but less than 416.8 G of Cocaine Base;

M At least 40 G but less than 60 G of PCP, or at least 4 G but less than 6 G of 

 PCP (actual);

M At least 20 G but less than 30 G of Methamphetamine, or at least 2 G but less 

 than 3 G of Methamphetamine (actual), or at least 2 G but less than 3 G of 

 "Ice";

M At least 20 G but less than 30 G of Amphetamine, or at least 2 G but less than 

 3 G of Amphetamine (actual);

Level 20

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M At least 400 MG but less than 600 MG of LSD;

M At least 16 G but less than 24 G of Fentanyl; 

M At least 4 G but less than 6 G of a Fentanyl Analogue;

M At least 40 KG but less than 60 KG of Marihuana;

M At least 8 KG but less than 12 KG of Hashish;

M At least 800 G but less than 1.2 KG of Hashish Oil;

M At least 40,000 but less than 60,000 units of Ketamine;

M At least 40,000 but less than 60,000 units of Schedule I or II Depressants;

M At least 40,000 but less than 60,000 units of Schedule III Hydrocodone;

M 40,000 or more units of Schedule III substances (except Ketamine or 

 Hydrocodone);

M At least 2,500 but less than 3,750 units of Flunitrazepam.

(11) M At least 20 G but less than 40 G of Heroin;

M At least 100 G but less than 200 G of Cocaine;

M At least 25.6 G but less than 311.2 G of Cocaine Base;

M At least 20 G but less than 40 G of PCP, or at least 2 G but less than 4 G of 

 PCP (actual);

M At least 10 G but less than 20 G of Methamphetamine, or at least 1 G but less 

 than 2 G of Methamphetamine (actual), or at least 1 G but less than 2 G of 

 "Ice";

M At least 10 G but less than 20 G of Amphetamine, or at least 1 G but less than 

 2 G of Amphetamine (actual);

M At least 200 MG but less than 400 MG of LSD;

M At least 8 G but less than 16 G of Fentanyl; 

M At least 2 G but less than 4 G of a Fentanyl Analogue;

M At least 20 KG but less than 40 KG of Marihuana;

M At least 5 KG but less than 8 KG of Hashish;

M At least 500 G but less than 800 G of Hashish Oil;

M At least 20,000 but less than 40,000 units of Ketamine;

M At least 20,000 but less than 40,000 units of Schedule I or II Depressants;

M At least 20,000 but less than 40,000 units of Schedule III Hydrocodone;

M At least 20,000 but less than 40,000 units of Schedule III substances (except 

 Ketamine or Hydrocodone);

M At least 1,250 but less than 2,500 units of Flunitrazepam.

Level 18

(12) M At least 10 G but less than 20 G of Heroin;

M At least 50 G but less than 100 G of Cocaine;

M At least 12.8 G but less than 25.6 G of Cocaine Base;

M At least 10 G but less than 20 G of PCP, or at least 1 G but less than 2 G of 

 PCP (actual);

M At least 5 G but less than 10 G of Methamphetamine, or at least 500 MG but 

 less than 1 G of Methamphetamine (actual), or at least 500 MG but less than 

 1 G of "Ice";

M At least 5 G but less than 10 G of Amphetamine, or at least 500 MG but less 

 than 1 G of Amphetamine (actual); 

M At least 100 MG but less than 200 MG of LSD;

M At least 4 G but less than 8 G of Fentanyl; 

M At least 1 G but less than 2 G of a Fentanyl Analogue;

M At least 10 KG but less than 20 KG of Marihuana;

Level 16

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M At least 2 KG but less than 5 KG of Hashish;

M At least 200 G but less than 500 G of Hashish Oil;

M At least 10,000 but less than 20,000 units of Ketamine; 

M At least 10,000 but less than 20,000 units of Schedule I or II Depressants;

M At least 10,000 but less than 20,000 units of Schedule III Hydrocodone;

M At least 10,000 but less than 20,000 units of Schedule III substances (except 

 Ketamine or Hydrocodone);

M At least 625 but less than 1,250 units of Flunitrazepam.

(13) M At least 5 G but less than 10 G of Heroin;

M At least 25 G but less than 50 G of Cocaine;

M At least 500 MG1.4 G but less than 12.8 G of Cocaine Base;

M At least 5 G but less than 10 G of PCP, or at least 500 MG but less than 1 G of 

 PCP (actual);

M At least 2.5 G but less than 5 G of Methamphetamine, or at least 250 MG but 

 less than 500 MG of Methamphetamine (actual), or at least 250 MG but less 

 than 500 MG of "Ice";

M At least 2.5 G but less than 5 G of Amphetamine, or at least 250 MG but less 

 than 500 MG of Amphetamine (actual);

M At least 50 MG but less than 100 MG of LSD;

M At least 2 G but less than 4 G of Fentanyl; 

M At least 500 MG but less than 1 G of a Fentanyl Analogue;

M At least 5 KG but less than 10 KG of Marihuana;

M At least 1 KG but less than 2 KG of Hashish;

M At least 100 G but less than 200 G of Hashish Oil;

M At least 5,000 but less than 10,000 units of Ketamine;

M At least 5,000 but less than 10,000 units of Schedule I or II Depressants;

M At least 5,000 but less than 10,000 units of Schedule III Hydrocodone;

M At least 5,000 but less than 10,000 units of Schedule III substances (except 

 Ketamine or Hydrocodone);

M At least 312 but less than 625 units of Flunitrazepam.

Level 14

(14) M Less than 5 G of Heroin; 

M Less than 25 G of Cocaine;

M Less than 500 MG1.4 G of Cocaine Base;

M Less than 5 G of PCP, or less than 500 MG of PCP (actual);

M Less than 2.5 G of Methamphetamine, or less than 250 MG of 

 Methamphetamine (actual), or less than 250 MG of "Ice";

M Less than 2.5 G of Amphetamine, or less than 250 MG of Amphetamine 

 (actual); 

M Less than 50 MG of LSD;

M Less than 2 G of Fentanyl; 

M Less than 500 MG of a Fentanyl Analogue;

M At least 2.5 KG but less than 5 KG of Marihuana;

M At least 500 G but less than 1 KG of Hashish;

M At least 50 G but less than 100 G of Hashish Oil;

M At least 2,500 but less than 5,000 units of Ketamine;

M At least 2,500 but less than 5,000 units of Schedule I or II Depressants;

M At least 2,500 but less than 5,000 units of Schedule III Hydrocodone;

M At least 2,500 but less than 5,000 units of Schedule III substances (except 

Level 12

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 Ketamine or Hydrocodone);

M At least 156 but less than 312 units of Flunitrazepam;

M 40,000 or more units of Schedule IV substances (except Flunitrazepam).

(15) M At least 1 KG but less than 2.5 KG of Marihuana; 

M At least 200 G but less than 500 G of Hashish;

M At least 20 G but less than 50 G of Hashish Oil;

M At least 1,000 but less than 2,500 units of Ketamine; 

M At least 1,000 but less than 2,500 units of Schedule I or II Depressants;

M At least 1,000 but less than 2,500 units of Schedule III Hydrocodone;

M At least 1,000 but less than 2,500 units of Schedule III substances (except 

 Ketamine or Hydrocodone);

M At least 62 but less than 156 units of Flunitrazepam;

M At least 16,000 but less than 40,000 units of Schedule IV substances (except 

 Flunitrazepam).

Level 10

(16) M At least 250 G but less than 1 KG of Marihuana; 

M At least 50 G but less than 200 G of Hashish;

M At least 5 G but less than 20 G of Hashish Oil;

M At least 250 but less than 1,000 units of Ketamine;

M At least 250 but less than 1,000 units of Schedule I or II Depressants;

M At least 250 but less than 1,000 units of Schedule III Hydrocodone;

M At least 250 but less than 1,000 units of Schedule III substances (except 

 Ketamine or Hydrocodone);

M Less than 62 units of Flunitrazepam;

M At least 4,000 but less than 16,000 units of Schedule IV substances (except 

 Flunitrazepam);

M 40,000 or more units of Schedule V substances.

Level 8

(17) M Less than 250 G of Marihuana; 

M Less than 50 G of Hashish;

M Less than 5 G of Hashish Oil;

M Less than 250 units of Ketamine;

M Less than 250 units of Schedule I or II Depressants;

M Less than 250 units of Schedule III Hydrocodone;

M Less than 250 units of Schedule III substances (except Ketamine or 

 Hydrocodone);

M Less than 4,000 units of Schedule IV substances (except Flunitrazepam);

M Less than 40,000 units of Schedule V substances.

Level 6

*Notes to Drug Quantity Table:

(A) Unless otherwise specified, the weight of a controlled substance set forth in the table refers to the

entire weight of any mixture or substance containing a detectable amount of the controlled

substance. If a mixture or substance contains more than one controlled substance, the weight of

the entire mixture or substance is assigned to the controlled substance that results in the greater

offense level. 

(B) The terms "PCP (actual)", "Amphetamine (actual)", and "Methamphetamine (actual)" refer to the

weight of the controlled substance, itself, contained in the mixture or substance. For example, a

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mixture weighing 10 grams containing PCP at 50% purity contains 5 grams of PCP (actual). In

the case of a mixture or substance containing PCP, amphetamine, or methamphetamine, use the

offense level determined by the entire weight of the mixture or substance, or the offense level

determined by the weight of the PCP (actual), amphetamine (actual), or methamphetamine

(actual), whichever is greater.

The term "Oxycodone (actual)" refers to the weight of the controlled substance, itself, contained

in the pill, capsule, or mixture.

(C) "Ice," for the purposes of this guideline, means a mixture or substance containing

d-methamphetamine hydrochloride of at least 80% purity.

(D) "Cocaine base," for the purposes of this guideline, means "crack." "Crack" is the street name for

a form of cocaine base, usually prepared by processing cocaine hydrochloride and sodium

bicarbonate, and usually appearing in a lumpy, rocklike form.

(E) In the case of an offense involving marihuana plants, treat each plant, regardless of sex, as

equivalent to 100 G of marihuana. Provided, however, that if the actual weight of the marihuana

is greater, use the actual weight of the marihuana.

(F) In the case of Schedule I or II Depressants (except gamma-hydroxybutyric acid), Schedule III

substances, Schedule IV substances, and Schedule V substances, one "unit" means one pill,

capsule, or tablet. If the substance (except gamma-hydroxybutyric acid) is in liquid form, one

"unit" means 0.5 ml. For an anabolic steroid that is not in a pill, capsule, tablet, or liquid form

(e.g., patch, topical cream, aerosol), the court shall determine the base offense level using a

reasonable estimate of the quantity of anabolic steroid involved in the offense. In making a

reasonable estimate, the court shall consider that each 25 mg of an anabolic steroid is one "unit".

(G) In the case of LSD on a carrier medium (e.g., a sheet of blotter paper), do not use the weight of

the LSD/carrier medium. Instead, treat each dose of LSD on the carrier medium as equal to 0.4

mg of LSD for the purposes of the Drug Quantity Table.

(H) Hashish, for the purposes of this guideline, means a resinous substance of cannabis that includes

(i) one or more of the tetrahydrocannabinols (as listed in 21 C.F.R. § 1308.11(d)(30)), (ii) at least

two of the following: cannabinol, cannabidiol, or cannabichromene, and (iii) fragments of plant

material (such as cystolith fibers).

(I) Hashish oil, for the purposes of this guideline, means a preparation of the soluble cannabinoids

derived from cannabis that includes (i) one or more of the tetrahydrocannabinols (as listed in 21 

C.F.R. § 1308.11(d)(30)), (ii) at least two of the following: cannabinol, cannabidiol, or

cannabichromene, and (iii) is essentially free of plant material (e.g., plant fragments). Typically,

hashish oil is a viscous, dark colored oil, but it can vary from a dry resin to a colorless liquid.

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* * *

Commentary

* * *

Application Notes:

* * *

10. Use of Drug Equivalency Tables.— 

(A) Controlled Substances Not Referenced in Drug Quantity Table.—The Commission has

used the sentences provided in, and equivalences derived from, the statute (21 U.S.C. §

841(b)(1)), as the primary basis for the guideline sentences. The statute, however,

provides direction only for the more common controlled substances, i.e., heroin, cocaine,

PCP, methamphetamine, fentanyl, LSD and marihuana. In the case of a controlled

substance that is not specifically referenced in the Drug Quantity Table, determine the

base offense level as follows: 

(i) Use the Drug Equivalency Tables to convert the quantity of the controlled

substance involved in the offense to its equivalent quantity of marihuana. 

(ii) Find the equivalent quantity of marihuana in the Drug Quantity Table.

(iii) Use the offense level that corresponds to the equivalent quantity of marihuana as

the base offense level for the controlled substance involved in the offense. 

(See also Application Note 5.) For example, in the Drug Equivalency Tables set forth in

this Note, 1 gm of a substance containing oxymorphone, a Schedule I opiate, converts to

an equivalent quantity of 5 kg of marihuana. In a case involving 100 gm of

oxymorphone, the equivalent quantity of marihuana would be 500 kg, which corresponds

to a base offense level of 28 in the Drug Quantity Table.

(B) Combining Differing Controlled Substances (Except Cocaine Base).—The Drug

Equivalency Tables also provide a means for combining differing controlled substances

to obtain a single offense level. In each case, convert each of the drugs to its marihuana 

equivalent, add the quantities, and look up the total in the Drug Quantity Table to obtain

the combined offense level. To determine a single offense level in a case involving

cocaine base and other controlled substances, see subdivision (D) of this note.

For certain types of controlled substances, the marihuana equivalencies in the Drug

Equivalency Tables are "capped" at specified amounts (e.g., the combined equivalent

weight of all Schedule V controlled substances shall not exceed 999 grams of

marihuana). Where there are controlled substances from more than one schedule (e.g.,

a quantity of a Schedule IV substance and a quantity of a Schedule V substance),

determine the marihuana equivalency for each schedule separately (subject to the cap, if

any, applicable to that schedule). Then add the marihuana equivalencies to determine

the combined marihuana equivalency (subject to the cap, if any, applicable to the

combined amounts).

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Note: Because of the statutory equivalences, the ratios in the Drug Equivalency Tables

do not necessarily reflect dosages based on pharmacological equivalents.

(C) Examples for Combining Differing Controlled Substances (Except Cocaine Base).— 

(i) The defendant is convicted of selling 70 grams of a substance containing PCP

(Level 22) and 250 milligrams of a substance containing LSD (Level 18). The

PCP converts to 70 kilograms of marihuana; the LSD converts to 25 kilograms

of marihuana. The total is therefore equivalent to 95 kilograms of marihuana,

for which the Drug Quantity Table provides an offense level of 24.

(ii) The defendant is convicted of selling 500 grams of marihuana (Level 8) and five

kilograms of diazepam (Level 8). 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 10 in the Drug Quantity Table.

(iii) The defendant is convicted of selling 80 grams of cocaine (Level 16) and five

kilograms of marihuana2 grams of cocaine base (Level 14). The cocaine is

equivalent to 16 kilograms of marihuana, and the cocaine base is equivalent to

7.142 kilograms of marihuana. The total is therefore equivalent to 2123.142

kilograms of marihuana, which has an offense level of 18 in the Drug Quantity

Table.

(iv) The defendant is convicted of selling 56,000 units of a Schedule III substance,

100,000 units of a Schedule IV substance, and 200,000 units of a Schedule V

substance. The marihuana equivalency for the Schedule III substance is 56

kilograms of marihuana (below the cap of 59.99 kilograms of marihuana set

forth as the maximum equivalent weight for Schedule III substances). The

marihuana equivalency for the Schedule IV substance is subject to a cap of 4.99

kilograms of marihuana set forth as the maximum equivalent weight for

Schedule IV substances (without the cap it would have been 6.25 kilograms). 

The marihuana equivalency for the Schedule V substance is subject to the cap of

999 grams of marihuana set forth as the maximum equivalent weight for

Schedule V substances (without the cap it would have been 1.25 kilograms). The

combined equivalent weight, determined by adding together the above amounts,

is subject to the cap of 59.99 kilograms of marihuana set forth as the maximum

combined equivalent weight for Schedule III, IV, and V substances. Without the

cap, the combined equivalent weight would have been 61.99 (56 + 4.99 + .999)

kilograms.

(D) Determining Base Offense Level in Offenses Involving Cocaine Base and Other

Controlled Substances.—

(i) In General.—Except as provided in subdivision (ii), if the offense involves

cocaine base ("crack") and one or more other controlled substance, determine

the combined offense level as provided by subdivision (B) of this note, and

reduce the combined offense level by 2 levels.

(ii) Exceptions to 2-level Reduction.—The 2-level reduction provided in subdivision

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(i) shall not apply in a case in which: 

(I) the offense involved 4.5 kg or more, or less than 250 mg, of cocaine

base; or 

(II) the 2-level reduction results in a combined offense level that is less than

the combined offense level that would apply under subdivision (B) of this

note if the offense involved only the other controlled substance(s) (i.e.,

the controlled substance(s) other than cocaine base). 

(iii) Examples.—

(I) The case involves 20 gm of cocaine base, 1.5 kg of cocaine, and 10 kg of

marihuana. Under the Drug Equivalency Tables in subdivision (E) of

this note, 20 gm of cocaine base converts to 400 kg of marihuana (20 gm

x 20 kg = 400 kg), and 1.5 kg of cocaine converts to 300 kg of

marihuana (1.5 kg x 200 gm = 300 kg), which, when added to the 10 kg

of marihuana results in a combined equivalent quantity of 710 kg of

marihuana. Under the Drug Quantity Table, 710 kg of marihuana

corresponds to a combined offense level of 30, which is reduced by two

levels to level 28. For the cocaine and marihuana, their combined

equivalent quantity of 310 kg of marihuana corresponds to a combined

offense level of 26 under the Drug Quantity Table. Because the

combined offense level for all three drug types after the 2-level

reduction is not less than the combined base offense level for the cocaine

and marihuana, the combined offense level for all three drug types

remains level 28. 

(II) The case involves 5 gm of cocaine base and 6 kg of heroin. Under the

Drug Equivalency Tables in subdivision (E) of this note, 5 gm of cocaine

base converts to 100 kg of marihuana (5 gm x 20 kg = 100 kg), and 6 kg

of heroin converts to 6,000 kg of marihuana (6,000 gm x 1 kg = 6,000

kg), which, when added together results in a combined equivalent

quantity of 6,100 kg of marihuana. Under the Drug Quantity Table,

6,100 kg of marihuana corresponds to a combined offense level of 34,

which is reduced by two levels to 32. For the heroin, the 6,000 kg of

marihuana corresponds to an offense level 34 under the Drug Quantity

Table. Because the combined offense level for the two drug types after

the 2-level reduction is less than the offense level for the heroin, the

reduction does not apply and the combined offense level for the two

drugs remains level 34.

(ED) Drug Equivalency Tables.—

Schedule I or II Opiates*

1 gm of Heroin = 1 kg of marihuana

1 gm of Alpha-Methylfentanyl = 10 kg of marihuana

1 gm of Dextromoramide = 670 gm of marihuana

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1 gm of Dipipanone = 250 gm of marihuana

1 gm of 3-Methylfentanyl = 10 kg of marihuana

1 gm of 1-Methyl-4-phenyl-4-propionoxypiperidine/MPPP = 700 gm of marihuana

1 gm of 1-(2-Phenylethyl)-4-phenyl-4-acetyloxypiperidine/

 PEPAP = 700 gm of marihuana

1 gm of Alphaprodine = 100 gm of marihuana

1 gm of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-

 piperidinyl] Propanamide) = 2.5 kg of marihuana

1 gm of Hydromorphone/Dihydromorphinone = 2.5 kg of marihuana

1 gm of Levorphanol = 2.5 kg of marihuana

1 gm of Meperidine/Pethidine = 50 gm of marihuana

1 gm of Methadone = 500 gm of marihuana

1 gm of 6-Monoacetylmorphine = 1 kg of marihuana

1 gm of Morphine = 500 gm of marihuana

1 gm of Oxycodone (actual) = 6700 gm of marihuana

1 gm of Oxymorphone = 5 kg of marihuana

1 gm of Racemorphan = 800 gm of marihuana

1 gm of Codeine = 80 gm of marihuana

1 gm of Dextropropoxyphene/Propoxyphene-Bulk = 50 gm of marihuana

1 gm of Ethylmorphine = 165 gm of marihuana

1 gm of Hydrocodone/Dihydrocodeinone = 500 gm of marihuana

1 gm of Mixed Alkaloids of Opium/Papaveretum = 250 gm of marihuana

1 gm of Opium = 50 gm of marihuana

1 gm of Levo-alpha-acetylmethadol (LAAM)= 3 kg of marihuana

*Provided, that the minimum offense level from the Drug Quantity Table for any of these controlled substances

individually, or in combination with another controlled substance, is level 12.

Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)*

1 gm of Cocaine = 200 gm of marihuana

1 gm of N-Ethylamphetamine = 80 gm of marihuana

1 gm of Fenethylline = 40 gm of marihuana

1 gm of Amphetamine = 2 kg of marihuana

1 gm of Amphetamine (Actual) = 20 kg of marihuana

1 gm of Methamphetamine = 2 kg of marihuana

1 gm of Methamphetamine (Actual) = 20 kg of marihuana

1 gm of "Ice" = 20 kg of marihuana

1 gm of Khat = .01 gm of marihuana

1 gm of 4-Methylaminorex ("Euphoria")= 100 gm of marihuana

1 gm of Methylphenidate (Ritalin)= 100 gm of marihuana

1 gm of Phenmetrazine = 80 gm of marihuana

1 gm Phenylacetone/P P (when possessed for the purpose 2

 of manufacturing methamphetamine) = 416 gm of marihuana

1 gm Phenylacetone/P P (in any other case) = 2 75 gm of marihuana

1 gm Cocaine Base (‘Crack’) = 20 kg3,571 gm of marihuana

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1 gm of Aminorex = 100 gm of marihuana

1 gm of Methcathinone = 380 gm of marihuana

1 gm of N-N-Dimethylamphetamine = 40 gm of marihuana

*Provided, that the minimum offense level from the Drug Quantity Table for any of these controlled substances

individually, or in combination with another controlled substance, is level 12.

LSD, PCP, and Other Schedule I and II Hallucinogens (and their immediate precursors)*

1 gm of Bufotenine = 70 gm of marihuana

1 gm of D-Lysergic Acid Diethylamide/Lysergide/LSD = 100 kg of marihuana

1 gm of Diethyltryptamine/DET = 80 gm of marihuana

1 gm of Dimethyltryptamine/DMT = 100 gm of marihuana

1 gm of Mescaline = 10 gm of marihuana

1 gm of Mushrooms containing Psilocin and/or 

 Psilocybin (Dry) = 1 gm of marihuana

1 gm of Mushrooms containing Psilocin and/or 

 Psilocybin (Wet) = 0.1 gm of marihuana

1 gm of Peyote (Dry) = 0.5 gm of marihuana

1 gm of Peyote (Wet) = 0.05 gm of marihuana

1 gm of Phencyclidine/PCP = 1 kg of marihuana

1 gm of Phencyclidine (actual) /PCP (actual) = 10 kg of marihuana

1 gm of Psilocin = 500 gm of marihuana

1 gm of Psilocybin = 500 gm of marihuana

1 gm of Pyrrolidine Analog of Phencyclidine/PHP = 1 kg of marihuana

1 gm of Thiophene Analog of Phencyclidine/TCP = 1 kg of marihuana

1 gm of 4-Bromo-2,5-Dimethoxyamphetamine/DOB = 2.5 kg of marihuana

1 gm of 2,5-Dimethoxy-4-methylamphetamine/DOM = 1.67 kg of marihuana

1 gm of 3,4-Methylenedioxyamphetamine/MDA = 500 gm of marihuana

1 gm of 3,4-Methylenedioxymethamphetamine/MDMA = 500 gm of marihuana

1 gm of 3,4-Methylenedioxy-N-ethylamphetamine/MDEA= 500 gm of marihuana

1 gm of Paramethoxymethamphetamine/PMA = 500 gm of marihuana

1 gm of 1-Piperidinocyclohexanecarbonitrile/PCC = 680 gm of marihuana

1 gm of N-ethyl-1-phenylcyclohexylamine (PCE) = 1 kg of marihuana

*Provided, that the minimum offense level from the Drug Quantity Table for any of these controlled substances

individually, or in combination with another controlled substance, is level 12.

Schedule I Marihuana

1 gm of Marihuana/Cannabis, granulated, powdered, etc. = 1 gm of marihuana

1 gm of Hashish Oil = 50 gm of marihuana

1 gm of Cannabis Resin or Hashish = 5 gm of marihuana

1 gm of Tetrahydrocannabinol, Organic = 167 gm of marihuana

1 gm of Tetrahydrocannabinol, Synthetic = 167 gm of marihuana

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Flunitrazepam ** 

1 unit of Flunitrazepam = 16 gm of marihuana

**Provided, that the minimum offense level from the Drug Quantity Table for flunitrazepam individually, or in

combination with any Schedule I or II depressants, Schedule III substances, Schedule IV substances, and

Schedule V substances is level 8.

Schedule I or II Depressants (except gamma-hydroxybutyric acid)

1 unit of a Schedule I or II Depressant 

(except gamma-hydroxybutyric acid) = 1 gm of marihuana

Gamma-hydroxybutyric Acid

1 ml of gamma-hydroxybutyric acid = 8.8 gm of marihuana

Schedule III Substances (except ketamine and hydrocodone)***

1 unit of a Schedule III Substance = 1 gm of marihuana 

***Provided, that the combined equivalent weight of all Schedule III substances (except ketamine and

hydrocodone), Schedule IV substances (except flunitrazepam), and Schedule V substances shall not exceed

59.99 kilograms of marihuana.

Schedule III Hydrocodone 

1 unit of Schedule III hydrocodone = 1 gm of marihuana

** **Provided, that the combined equivalent weight of all Schedule III substances (except ketamine), Schedule

IV substances (except flunitrazepam), and Schedule V substances shall not exceed 999.99 kilograms of

marihuana.

Ketamine

1 unit of ketamine = 1 gm of marihuana

Schedule IV Substances (except flunitrazepam)*****

1 unit of a Schedule IV Substance 

(except Flunitrazepam)= 0.0625 gm of marihuana 

*****Provided, that the combined equivalent weight of all Schedule IV (except flunitrazepam) and V

substances shall not exceed 4.99 kilograms of marihuana.

Schedule V Substances******

1 unit of a Schedule V Substance = 0.00625 gm of marihuana

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******Provided, that the combined equivalent weight of Schedule V substances shall not exceed 999 grams of

marihuana.

List I Chemicals (relating to the manufacture of amphetamine or methamphetamine)*******

1 gm of Ephedrine = 10 kg of marihuana

1 gm of Phenylpropanolamine = 10 kg of marihuana

1 gm of Pseudoephedrine = 10 kg of marihuana

*******Provided, that in a case involving ephedrine, pseudoephedrine, or phenylpropanolamine tablets, use

the weight of the ephedrine, pseudoephedrine, or phenylpropanolamine contained in the tablets, not the weight

of the entire tablets, in calculating the base offense level.

Date Rape Drugs (except flunitrazipam, GHB, or ketamine)

1 ml of 1,4-butanediol = 8.8 gm marihuana

1 ml of gamma butyrolactone = 8.8 gm marihuana

To facilitate conversions to drug equivalencies, the following table is provided:

 MEASUREMENT CONVERSION TABLE

1 oz = 28.35 gm

1 lb = 453.6 gm

1 lb = 0.4536 kg

1 gal = 3.785 liters

1 qt = 0.946 liters

1 gm = 1 ml (liquid)

1 liter = 1,000 ml

1 kg = 1,000 gm

1 gm = 1,000 mg

1 grain = 64.8 mg.

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(B) Aggravating and Mitigating Factors in Drug Trafficking Cases

§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):

 (1) 43, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(A),

(b)(1)(B), or (b)(1)(C), or 21 U.S.C. § 960(b)(1), (b)(2), or (b)(3), and

the offense of conviction establishes that death or serious bodily injury

resulted from the use of the substance and that the defendant committed

the offense after one or more prior convictions for a similar offense; or

(2) 38, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(A),

(b)(1)(B), or (b)(1)(C), or 21 U.S.C. § 960(b)(1), (b)(2), or (b)(3), and

the offense of conviction establishes that death or serious bodily injury

resulted from the use of the substance; or 

(3) 30, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(E) or 21

U.S.C. § 960(b)(5), and the offense of conviction establishes that death

or serious bodily injury resulted from the use of the substance and that

the defendant committed the offense after one or more prior convictions

for a similar offense; or

(4) 26, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(E) or 21

U.S.C. § 960(b)(5), and the offense of conviction establishes that death

or serious bodily injury resulted from the use of the substance; or

(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

the 4-level ("minimal participant") reduction in §3B1.2(a), decrease to

level 32.

(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 levels.

(23) If the defendant unlawfully imported or exported a controlled substance

under circumstances in which (A) an aircraft other than a regularly

scheduled commercial air carrier was used to import or export the

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controlled substance, (B) a submersible vessel or semi-submersible

vessel as described in 18 U.S.C. § 2285 was used, or (C) the defendant

acted as a pilot, copilot, captain, navigator, flight officer, or any other

operation officer aboard any craft or vessel carrying a controlled

substance, increase by 2 levels. If the resulting offense level is less than

level 26, increase to level 26.

(34) If the object of the offense was the distribution of a controlled substance

in a prison, correctional facility, or detention facility, increase by 2

levels.

(45) If (A) the offense involved the importation of amphetamine or

methamphetamine or the manufacture of amphetamine or

methamphetamine from listed chemicals that the defendant knew were 

imported unlawfully, and (B) the defendant is not subject to an

adjustment under §3B1.2 (Mitigating Role), increase by 2 levels.

(56) If the defendant is convicted under 21 U.S.C. § 865, increase by 2 levels.

(67) If the defendant, or a person for whose conduct the defendant is

accountable under §1B1.3 (Relevant Conduct), distributed a controlled

substance through mass-marketing by means of an interactive computer

service, increase by 2 levels.

(78) If the offense involved the distribution of an anabolic steroid and a

masking agent, increase by 2 levels.

(89) If the defendant distributed an anabolic steroid to an athlete, increase by

2 levels.

(910) If the defendant was convicted under 21 U.S.C. § 841(g)(1)(A), increase

by 2 levels.

(11) If the defendant bribed, or attempted to bribe, a law enforcement officer

to facilitate the commission of the offense, increase by 2 levels.

(12) If the defendant maintained a premises for the purpose of manufacturing

or distributing a controlled substance, increase by 2 levels.

(1013) (Apply the greatest):

(A) If the offense involved (i) an unlawful discharge, emission, or

release into the environment of a hazardous or toxic substance;

or (ii) the unlawful transportation, treatment, storage, or disposal

of a hazardous waste, increase by 2 levels.

(B) If the defendant was convicted under 21 U.S.C. § 860a of

distributing, or possessing with intent to distribute,

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methamphetamine on premises where a minor is present or

resides, increase by 2 levels. If the resulting offense level is less

than level 14, increase to level 14. 

(C) If—

(i) the defendant was convicted under 21 U.S.C. § 860a of

manufacturing, or possessing with intent to manufacture,

methamphetamine on premises where a minor is present

or resides; or 

(ii) the offense involved the manufacture of amphetamine or

methamphetamine and the offense created a substantial

risk of harm to (I) human life other than a life described

in subdivision (D); or (II) the environment,

increase by 3 levels. If the resulting offense level is less than

level 27, increase to level 27.

(D) If the offense (i) involved the manufacture of amphetamine or

methamphetamine; and (ii) created a substantial risk of harm to

the life of a minor or an incompetent, increase by 6 levels. If the

resulting offense level is less than level 30, increase to level 30.

(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 fear, impulse, friendship, affection, or

some combination thereof to involve another individual in the

illegal purchase, sale, transport, or storage of controlled

substances, (ii) the individual received little or no compensation

from the illegal purchase, sale, transport, or storage of controlled

substances, and (iii) the individual had minimal knowledge of

the scope and structure of the enterprise;

(B) the defendant, knowing that an individual was (i) less than 18

years of age, (ii) 65 or more years of age, (iii) pregnant, or (iv)

unusually vulnerable due to physical or mental condition or

otherwise particularly susceptible to the criminal conduct,

distributed a controlled substance to that individual or involved

that individual in the offense;

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

controlled substance;

(D) 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;

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

criminal conduct engaged in as a livelihood,

increase by 2 levels.

(15) If the defendant receives the 4-level ("minimal participant") reduction in

§3B1.2(a) 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 received no monetary compensation from the

illegal purchase, sale, transport, or storage of controlled

substances; 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.

[Subsection (c) (Drug Quantity Table) was set forth in Part A, above.]

(d) Cross References

(1) If a victim was killed under circumstances that would constitute murder

under 18 U.S.C. § 1111 had such killing taken place within the territorial

or maritime jurisdiction of the United States, apply §2A1.1 (First Degree

Murder) or §2A1.2 (Second Degree Murder), as appropriate, if the

resulting offense level is greater than that determined under this

guideline.

(2) If the defendant was convicted under 21 U.S.C. § 841(b)(7) (of

distributing a controlled substance with intent to commit a crime of

violence), apply §2X1.1 (Attempt, Solicitation, or Conspiracy) in respect

to the crime of violence that the defendant committed, or attempted or

intended to commit, if the resulting offense level is greater than that

determined above.

(e) Special Instruction

(1) If (A) subsection (d)(2) does not apply; and (B) the defendant

committed, or attempted to commit, a sexual offense against another

individual by distributing, with or without that individual’s knowledge, a

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controlled substance to that individual, an adjustment under

§3A1.1(b)(1) shall apply.

Commentary

Statutory Provisions: 21 U.S.C. §§ 841(a), (b)(1)-(3), (7), (g), 860a, 865, 960(a), (b); 49 U.S.C. §

46317(b). For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

1. "Mixture or substance" as used in this guideline has the same meaning as in 21 U.S.C. § 841,

except as expressly provided. Mixture or substance does not include materials that must be

separated from the controlled substance before the controlled substance can be used. Examples

of such materials include the fiberglass in a cocaine/fiberglass bonded suitcase, beeswax in a

cocaine/beeswax statue, and waste water from an illicit laboratory used to manufacture a

controlled substance. If such material cannot readily be separated from the mixture or

substance that appropriately is counted in the Drug Quantity Table, the court may use any

reasonable method to approximate the weight of the mixture or substance to be counted.

An upward departure nonetheless may be warranted when the mixture or substance counted in

the Drug Quantity Table is combined with other, non-countable material in an unusually

sophisticated manner in order to avoid detection.

Similarly, in the case of marihuana having a moisture content that renders the marihuana

unsuitable for consumption without drying (this might occur, for example, with a bale of rainsoaked marihuana or freshly harvested marihuana that had not been dried), an approximation of

the weight of the marihuana without such excess moisture content is to be used.

2. The statute and guideline also apply to "counterfeit" substances, which are defined in 21 U.S.C.

§ 802 to mean controlled substances that are falsely labeled so as to appear to have been

legitimately manufactured or distributed.

3. Application of Subsections (b)(1) and (b)(2).—

(A) Application of Subsection (b)(1).—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 adjustment enhancement 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 would not be applied if the defendant,

arrested at histhe defendant's 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).

(B) Interaction of Subsections (b)(1) and (b)(2).—The enhancements in subsections (b)(1)

and (b)(2) may be applied cumulatively (added together), as is generally the case when

two or more specific offense characteristics each apply. See §1B1.1 (Application

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Instructions), Application Note 4(A). However, in a case in which the defendant merely

possessed a dangerous weapon but did not use violence, make a credible threat to use

violence, or direct the use of violence, subsection (b)(2) would not apply.

4. Distribution of "a small amount of marihuana for no remuneration", 21 U.S.C. § 841(b)(4), is

treated as simple possession, to which §2D2.1 applies.

5. Analogues and Controlled Substances Not Referenced in this Guideline.—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. Any

reference to cocaine includes ecgonine and coca leaves, except extracts of coca leaves from

which cocaine and ecgonine have been removed. For purposes of this guideline "analogue" has

the meaning given the term "controlled substance analogue" in 21 U.S.C. § 802(32). In

determining the appropriate sentence, the court also may consider whether the same quantity of

analogue produces a greater effect on the central nervous system than the controlled substance

for which it is an analogue.

In the case of a controlled substance that is not specifically referenced in this guideline,

determine the base offense level using the marihuana equivalency of the most closely related

controlled substance referenced in this guideline. In determining the most closely related

controlled substance, the court shall, to the extent practicable, consider the following:

(A) Whether the controlled substance not referenced in this guideline has a chemical

structure that is substantially similar to a controlled substance referenced in this

guideline.

(B) Whether the controlled substance not referenced in this guideline has a stimulant,

depressant, or hallucinogenic effect on the central nervous system that is substantially

similar to the stimulant, depressant, or hallucinogenic effect on the central nervous

system of a controlled substance referenced in this guideline.

(C) Whether a lesser or greater quantity of the controlled substance not referenced in this

guideline is needed to produce a substantially similar effect on the central nervous

system as a controlled substance referenced in this guideline.

6. Where there are multiple transactions or multiple drug types, the quantities of drugs are to be

added. Tables for making the necessary conversions are provided below.

7. Where a mandatory (statutory) minimum sentence applies, this mandatory minimum sentence

may be "waived" and a lower sentence imposed (including a downward departure), as provided

in 28 U.S.C. § 994(n), by reason of a defendant’s "substantial assistance in the investigation or

prosecution of another person who has committed an offense." See §5K1.1 (Substantial

Assistance to Authorities). In addition, 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).

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

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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).

9. Trafficking in controlled substances, compounds, or mixtures of unusually high purity may

warrant an upward departure, except in the case of PCP, amphetamine, methamphetamine, or

oxycodone for which the guideline itself provides for the consideration of purity (see the footnote

to the Drug Quantity Table). The purity of the controlled substance, particularly in the case of

heroin, may be relevant in the sentencing process because it is probative of the defendant’s role

or position in the chain of distribution. Since controlled substances are often diluted and

combined with other substances as they pass down the chain of distribution, the fact that a

defendant is in possession of unusually pure narcotics may indicate a prominent role in the

criminal enterprise and proximity to the source of the drugs. As large quantities are normally

associated with high purities, this factor is particularly relevant where smaller quantities are

involved. 

10. [Application Note 10 was set forth in Part A, above.]

11. If the number of doses, pills, or capsules but not the weight of the controlled substance is known,

multiply the number of doses, pills, or capsules by the typical weight per dose in the table below

to estimate the total weight of the controlled substance (e.g., 100 doses of Mescaline at 500 mg

per dose = 50 gms of mescaline). The Typical Weight Per Unit Table, prepared from

information provided by the Drug Enforcement Administration, displays the typical weight per

dose, pill, or capsule for certain controlled substances. Do not use this table if any more

reliable estimate of the total weight is available from case-specific information.

TYPICAL WEIGHT PER UNIT (DOSE, PILL, OR CAPSULE) TABLE

Hallucinogens

MDA 250 mg

MDMA 250 mg

Mescaline 500 mg

PCP* 5 mg

Peyote (dry) 12 gm

Peyote (wet) 120 gm

Psilocin* 10 mg

Psilocybe mushrooms (dry) 5 gm

Psilocybe mushrooms (wet) 50 gm

Psilocybin* 10 mg

2,5-Dimethoxy-4-methylamphetamine (STP, DOM)* 3 mg

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Marihuana

1 marihuana cigarette 0.5 gm

Stimulants

Amphetamine* 10 mg

Methamphetamine* 5 mg

Phenmetrazine (Preludin)* 75 mg

*For controlled substances marked with an asterisk, the weight per unit shown is the weight

of the actual controlled substance, and not generally the weight of the mixture or substance 

containing the controlled substance. Therefore, use of this table provides a very

conservative estimate of the total weight.

12. Types and quantities of drugs not specified in the count of conviction may be considered in

determining the offense level. See §1B1.3(a)(2) (Relevant Conduct). Where there is no drug

seizure or the amount seized does not reflect the scale of the offense, the court shall

approximate the quantity of the controlled substance. In making this determination, the

court may consider, for example, the price generally obtained for the controlled substance,

financial or other records, similar transactions in controlled substances by the defendant,

and the size or capability of any laboratory involved.

If the offense involved both a substantive drug offense and an attempt or conspiracy (e.g.,

sale of five grams of heroin and an attempt to sell an additional ten grams of heroin), the

total quantity involved shall be aggregated to determine the scale of the offense. 

In an offense involving an agreement to sell a controlled substance, the agreed-upon quantity

of the controlled substance shall be used to determine the offense level unless the sale is

completed and the amount delivered more accurately reflects the scale of the offense. For

example, a defendant agrees to sell 500 grams of cocaine, the transaction is completed by the

delivery of the controlled substance - actually 480 grams of cocaine, and no further delivery

is scheduled. In this example, the amount delivered more accurately reflects the scale of the

offense. In contrast, in a reverse sting, the agreed-upon quantity of the controlled substance

would more accurately reflect the scale of the offense because the amount actually delivered 

is controlled by the government, not by the defendant. If, however, the defendant establishes 

that the defendant did not intend to provide or purchase, or was not reasonably capable of

providing or purchasing, the agreed-upon quantity of the controlled substance, the court

shall exclude from the offense level determination the amount of controlled substance that

the defendant establishes that the defendant did not intend to provide or purchase or was not

reasonably capable of providing or purchasing.

13. Certain pharmaceutical preparations are classified as Schedule III, IV, or V controlled

substances by the Drug Enforcement Administration under 21 C.F.R. § 1308.13-15 even

though they contain a small amount of a Schedule I or II controlled substance. For example,

Tylenol 3 is classified as a Schedule III controlled substance even though it contains a small 

amount of codeine, a Schedule II opiate. For the purposes of the guidelines, the

classification of the controlled substance under 21 C.F.R. § 1308.13-15 is the appropriate

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classification.

14. If, in a reverse sting (an operation in which a government agent sells or negotiates to sell a

controlled substance to a defendant), the court finds that the government agent set a price for 

the controlled substance that was substantially below the market value of the controlled

substance, thereby leading to the defendant’s purchase of a significantly greater quantity of

the controlled substance than his available resources would have allowed him to purchase

except for the artificially low price set by the government agent, a downward departure may

be warranted. 

15. LSD on a blotter paper carrier medium typically is marked so that the number of doses

("hits") per sheet readily can be determined. When this is not the case, it is to be presumed

that each 1/4 inch by 1/4 inch section of the blotter paper is equal to one dose.

In the case of liquid LSD (LSD that has not been placed onto a carrier medium), using the

weight of the LSD alone to calculate the offense level may not adequately reflect the

seriousness of the offense. In such a case, an upward departure may be warranted.

16. In an extraordinary case, an upward departure above offense level 38 on the basis of drug

quantity may be warranted. For example, an upward departure may be warranted where the

quantity is at least ten times the minimum quantity required for level 38. Similarly, in the

case of a controlled substance for which the maximum offense level is less than level 38, an

upward departure may be warranted if the drug quantity substantially exceeds the quantity

for the highest offense level established for that particular controlled substance.

17. For purposes of the guidelines, a "plant" is an organism having leaves and a readily

observable root formation (e.g., a marihuana cutting having roots, a rootball, or root hairs is

a marihuana plant).

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, 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

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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:

(i) The quantity of any chemicals or hazardous or toxic substances found at the

laboratory, and the manner in which the chemicals or substances were

stored. 

(ii) The manner in which hazardous or toxic substances were disposed, and the

likelihood of release into the environment of hazardous or toxic substances.

(iii) The duration of the offense, and the extent of the manufacturing operation.

(iv) The location of the laboratory (e.g., whether the laboratory is located in a

residential neighborhood or a remote area), and the number of human lives

placed at substantial risk of harm.

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

"Incompetent" means an individual who is incapable of taking care of the

individual’s self or property because of a mental or physical illness or disability,

mental retardation, or senility. 

"Minor" has the meaning given that term in Application Note 1 of the Commentary to

§2A3.1 (Criminal Sexual Abuse).

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.

22. Imposition of Consecutive Sentence for 21 U.S.C. § 860a or § 865.—Sections 860a and 865

of title 21, United States Code, require the imposition of a mandatory consecutive term of

imprisonment of not more than 20 years and 15 years, respectively. In order to comply with

the relevant statute, the court should determine the appropriate "total punishment" and

divide the sentence on the judgment form between the sentence attributable to the underlying

drug offense and the sentence attributable to 21 U.S.C. § 860a or § 865, specifying the

number of months to be served consecutively for the conviction under 21 U.S.C. § 860a or

§ 865. For example, if the applicable adjusted guideline range is 151-188 months and the

court determines a "total punishment" of 151 months is appropriate, a sentence of 130

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months for the underlying offense plus 21 months for the conduct covered by 21 U.S.C. §

860a or § 865 would achieve the "total punishment" in a manner that satisfies the statutory

requirement of a consecutive sentence.

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 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)).

24. Application of Subsection (e)(1).—

(A) Definition.—For purposes of this guideline, "sexual offense" means a "sexual act" or

"sexual contact" as those terms are defined in 18 U.S.C. § 2246(2) and (3),

respectively. 

(B) Upward Departure Provision.—If the defendant committed a sexual offense against

more than one individual, an upward departure would be warranted.

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. 

27. Application of Subsection (b)(11).—Subsection (b)(11) does not apply if the purpose of the

bribery was to obstruct or impede the investigation, prosecution, or sentencing of the

defendant. Such conduct is covered by §3C1.1 (Obstructing or Impeding the Administration

of Justice) and, if applicable, §2D1.1(b)(14)(D).

28. Application of Subsection (b)(12).—Subsection (b)(12) applies to a defendant who knowingly

maintains a premises (i.e., a building, room, or enclosure) for the purpose of manufacturing

or distributing a controlled substance, including storage of a controlled substance for the

purpose of distribution.

Among the factors the court should consider in determining whether the defendant

"maintained" the premises are (A) whether the defendant held a possessory interest in (e.g.,

owned or rented) the premises and (B) the extent to which the defendant controlled access to,

or activities at, the premises.

Manufacturing or distributing a controlled substance need not be the sole purpose for which

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the premises was maintained, but must be one of the defendant's primary or principal uses

for the premises, rather than one of the defendant's incidental or collateral uses for the

premises. In making this determination, the court should consider how frequently the

premises was used by the defendant for manufacturing or distributing a controlled substance

and how frequently the premises was used by the defendant for lawful purposes.

29. Application of Subsection (b)(14).—

(A) Distributing to a Specified Individual or Involving Such an Individual in the Offense

(Subsection (b)(14)(B)).—If the defendant distributes a controlled substance to an

individual or involves an individual in the offense, as specified in subsection

(b)(14)(B), the individual is not a "vulnerable victim" for purposes of §3A1.1(b).

(B) Directly Involved in the Importation of a Controlled Substance (Subsection

(b)(14)(C)).—Subsection (b)(14)(C) applies if the defendant is accountable for the

importation of a controlled substance under subsection (a)(1)(A) of §1B1.3 (Relevant

Conduct (Factors that Determine the Guideline Range)), i.e., the defendant

committed, aided, abetted, counseled, commanded, induced, procured, or willfully

caused the importation of a controlled substance.

If subsection (b)(3) or (b)(5) applies, do not apply subsection (b)(14)(C).

(C) Pattern of Criminal Conduct Engaged in as a Livelihood (Subsection

(b)(14)(E)).—For purposes of subsection (b)(14)(E), "pattern of criminal conduct"

and "engaged in as a livelihood" have the meaning given such terms in §4B1.3

(Criminal Livelihood).

Background: Offenses under 21 U.S.C. §§ 841 and 960 receive identical punishment based upon the

quantity of the controlled substance involved, the defendant’s criminal history, and whether death or

serious bodily injury resulted from the offense. 

The base offense levels in §2D1.1 are either provided directly by the Anti-Drug Abuse Act of

1986 or are proportional to the levels established by statute, and apply to all unlawful trafficking. 

Levels 32 and 26 in the Drug Quantity Table are the distinctions provided by the Anti-Drug Abuse

Act; however, further refinement of drug amounts is essential to provide a logical sentencing

structure for drug offenses. To determine these finer distinctions, the Commission consulted

numerous experts and practitioners, including authorities at the Drug Enforcement Administration,

chemists, attorneys, probation officers, and members of the Organized Crime Drug Enforcement Task

Forces, who also advocate the necessity of these distinctions. Where necessary, this scheme has been

modified in response to specific congressional directives to the Commission.

The base offense levels at levels 26 and 32 establish guideline ranges with a lower limit as

close to the statutory minimum as possible; e.g., level 32 ranges from 121 to 151 months, where the

statutory minimum is ten years or 120 months. 

For marihuana plants, the Commission has adopted an equivalency of 100 grams per plant,

or the actual weight of the usable marihuana, whichever is greater. The decision to treat each plant

as equal to 100 grams is premised on the fact that the average yield from a mature marihuana plant

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equals 100 grams of marihuana. In controlled substance offenses, an attempt is assigned the same

offense level as the object of the attempt. Consequently, the Commission adopted the policy that each

plant is to be treated as the equivalent of an attempt to produce 100 grams of marihuana, except

where the actual weight of the usable marihuana is greater.

The last sentence of subsection (a)(5) implements the directive to the Commission in section

7(1) of Public Law 111–220.

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 AntiDrug Abuse Act of 1988.

Frequently, a term of supervised release to follow imprisonment is required by statute for

offenses covered by this guideline. Guidelines for the imposition, duration, and conditions of

supervised release are set forth in Chapter Five, Part D (Supervised Release).

Because the weights of LSD carrier media vary widely and typically far exceed the weight of

the controlled substance itself, the Commission has determined that basing offense levels on the

entire weight of the LSD and carrier medium would produce unwarranted disparity among offenses

involving the same quantity of actual LSD (but different carrier weights), as well as sentences

disproportionate to those for other, more dangerous controlled substances, such as PCP. 

Consequently, in cases involving LSD contained in a carrier medium, the Commission has

established a weight per dose of 0.4 milligram for purposes of determining the base offense level.

The dosage weight of LSD selected exceeds the Drug Enforcement Administration’s standard

dosage unit for LSD of 0.05 milligram (i.e., the quantity of actual LSD per dose) in order to assign

some weight to the carrier medium. Because LSD typically is marketed and consumed orally on a

carrier medium, the inclusion of some weight attributable to the carrier medium recognizes (A) that

offense levels for most other controlled substances are based upon the weight of the mixture

containing the controlled substance without regard to purity, and (B) the decision in Chapman v.

United States, 111 S.Ct. 1919 (1991) (holding that the term "mixture or substance" in 21 U.S.C.

§ 841(b)(1) includes the carrier medium in which LSD is absorbed). At the same time, the weight per

dose selected is less than the weight per dose that would equate the offense level for LSD on a carrier

medium with that for the same number of doses of PCP, a controlled substance that comparative

assessments indicate is more likely to induce violent acts and ancillary crime than is LSD. (Treating

LSD on a carrier medium as weighing 0.5 milligram per dose would produce offense levels

equivalent to those for PCP.) Thus, the approach decided upon by the Commission will harmonize

offense levels for LSD offenses with those for other controlled substances and avoid an undue

influence of varied carrier weight on the applicable offense level. Nonetheless, this approach does

not override the applicability of "mixture or substance" for the purpose of applying any mandatory

minimum sentence (see Chapman; §5G1.1(b)). 

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

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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(3) of Public Law

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.

(b) Specific Offense Characteristic

(1) If §3A1.4 (Terrorism) does not apply, increase by 6 levels.

Commentary

Statutory Provision: 21 U.S.C. § 960a.

* * *

§2K2.4. Use of Firearm, Armor-Piercing Ammunition, or Explosive During or in

Relation to Certain Crimes 

(a) If the defendant, whether or not convicted of another crime, was convicted of

violating section 844(h) of title 18, United States Code, the guideline

sentence is the term of imprisonment required by statute. Chapters Three

(Adjustments) and Four (Criminal History and Criminal Livelihood) shall

not apply to that count of conviction.

(b) Except as provided in subsection (c), if the defendant, whether or not

convicted of another crime, was convicted of violating section 924(c) or

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section 929(a) of title 18, United States Code, the guideline sentence is the

minimum term of imprisonment required by statute. Chapters Three and

Four shall not apply to that count of conviction.

(c) If the defendant (1) was convicted of violating section 924(c) or section

929(a) of title 18, United States Code; and (2) as a result of that conviction

(alone or in addition to another offense of conviction), is determined to be a

career offender under §4B1.1 (Career Offender), the guideline sentence shall

be determined under §4B1.1(c). Except for §§3E1.1 (Acceptance of

Responsibility), 4B1.1, and 4B1.2 (Definitions of Terms Used in Section

4B1.1), Chapters Three and Four shall not apply to that count of conviction.

(d) Special Instructions for Fines

(1) Where there is a federal conviction for the underlying offense, the

fine guideline shall be the fine guideline that would have been

applicable had there only been a conviction for the underlying

offense. This guideline shall be used as a consolidated fine guideline

for both the underlying offense and the conviction underlying this

section.

Commentary

Statutory Provisions: 18 U.S.C. §§ 844(h), 924(c), 929(a).

Application Notes:

1. Application of Subsection (a).—Section 844(h) of title 18, United State Code, provides a

mandatory term of imprisonment of 10 years (or 20 years for the second or subsequent

offense). Accordingly, the guideline sentence for a defendant convicted under 18 U.S.C.

§ 844(h) is the term required by that statute. Section 844(h) of title 18, United State Code,

also requires a term of imprisonment imposed under this section to run consecutively to any

other term of imprisonment. 

2. Application of Subsection (b).—

(A) In General.—Sections 924(c) and 929(a) of title 18, United States Code, provide

mandatory minimum terms of imprisonment (e.g., not less than five years). Except as

provided in subsection (c), in a case in which the defendant is convicted under 18

U.S.C. § 924(c) or § 929(a), the guideline sentence is the minimum term required by

the relevant statute. Each of 18 U.S.C. §§ 924(c) and 929(a) also requires that a

term of imprisonment imposed under that section shall run consecutively to any other

term of imprisonment. 

(B) Upward Departure Provision.—In a case in which the guideline sentence is

determined under subsection (b), a sentence above the minimum term required by 18

U.S.C. § 924(c) or § 929(a) is an upward departure from the guideline sentence. A

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departure may be warranted, for example, to reflect the seriousness of the

defendant’s criminal history in a case in which the defendant is convicted of an 18

U.S.C. § 924(c) or § 929(a) offense but is not determined to be a career offender

under §4B1.1.

3. Application of Subsection (c).—In a case in which the defendant (A) was convicted of

violating 18 U.S.C. § 924(c) or 18 U.S.C. § 929(a); and (B) as a result of that conviction

(alone or in addition to another offense of conviction), is determined to be a career offender

under §4B1.1 (Career Offender), the guideline sentence shall be determined under §4B1.1(c). 

In a case involving multiple counts, the sentence shall be imposed according to the rules in

subsection (e) of §5G1.2 (Sentencing on Multiple Counts of Conviction).

4. Weapon Enhancement.— If a sentence under this guideline is imposed in conjunction with a

sentence for an underlying offense, do not apply any specific offense characteristic for

possession, brandishing, use, or discharge of an explosive or firearm when determining the

sentence for the underlying offense. A sentence under this guideline accounts for any

explosive or weapon enhancement for the underlying offense of conviction, including any

such enhancement that would apply based on conduct for which the defendant is accountable

under §1B1.3 (Relevant Conduct). Do not apply any weapon enhancement in the guideline

for the underlying offense, for example, if (A) a co-defendant, as part of the jointly

undertaken criminal activity, possessed a firearm different from the one for which the

defendant was convicted under 18 U.S.C. § 924(c); or (B) in an ongoing drug trafficking

offense, the defendant possessed a firearm other than the one for which the defendant was

convicted under 18 U.S.C. § 924(c). However, if a defendant is convicted of two armed bank

robberies, but is convicted under 18 U.S.C. § 924(c) in connection with only one of the

robberies, a weapon enhancement would apply to the bank robbery which was not the basis

for the 18 U.S.C. § 924(c) conviction.

A sentence under this guideline also accounts for conduct that would subject the defendant to

an enhancement under §2D1.1(b)(2) (pertaining to use of violence, credible threat to use

violence, or directing the use of violence). Do not apply that enhancement when determining

the sentence for the underlying offense.

If the explosive or weapon that was possessed, brandished, used, or discharged in the course

of the underlying offense also results in a conviction that would subject the defendant to an

enhancement under §2K1.3(b)(3) (pertaining to possession of explosive material in

connection with another felony offense) or §2K2.1(b)(6) (pertaining to possession of any

firearm or ammunition in connection with another felony offense), do not apply that

enhancement. A sentence under this guideline accounts for the conduct covered by these

enhancements because of the relatedness of that conduct to the conduct that forms the basis

for the conviction under 18 U.S.C. § 844(h), § 924(c) or § 929(a). For example, if in addition

to a conviction for an underlying offense of armed bank robbery, the defendant was convicted

of being a felon in possession under 18 U.S.C. § 922(g), the enhancement under §2K2.1(b)(6)

would not apply.

In a few cases in which the defendant is determined not to be a career offender, the offense

level for the underlying offense determined under the preceding paragraphs may result in a

guideline range that, when combined with the mandatory consecutive sentence under 18

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U.S.C. § 844(h), § 924(c), or § 929(a), produces a total maximum penalty that is less than the

maximum of the guideline range that would have resulted had there not been a count of

conviction under 18 U.S.C. § 844(h), § 924(c), or § 929(a) (i.e., the guideline range that

would have resulted if the enhancements for possession, use, or discharge of a firearm had

been applied). In such a case, an upward departure may be warranted so that the conviction

under 18 U.S.C. § 844(h), § 924(c), or § 929(a) does not result in a decrease in the total

punishment. An upward departure under this paragraph shall not exceed the maximum of

the guideline range that would have resulted had there not been a count of conviction under

18 U.S.C. § 844(h), § 924(c), or § 929(a).

5. Chapters Three and Four.—Except for those cases covered by subsection (c), do not apply

Chapter Three (Adjustments) and Chapter Four (Criminal History and Criminal Livelihood)

to any offense sentenced under this guideline. Such offenses are excluded from application

of those chapters because the guideline sentence for each offense is determined only by the

relevant statute. See §§3D1.1 (Procedure for Determining Offense Level on Multiple

Counts) and 5G1.2. In determining the guideline sentence for those cases covered by

subsection (c): (A) the adjustment in §3E1.1 (Acceptance of Responsibility) may apply, as

provided in §4B1.1(c); and (B) no other adjustments in Chapter Three and no provisions of

Chapter Four, other than §§4B1.1 and 4B1.2, shall apply.

6. Terms of Supervised Release.— Imposition of a term of supervised release is governed by the

provisions of §5D1.1 (Imposition of a Term of Supervised Release).

7. Fines.— Subsection (d) sets forth special provisions concerning the imposition of fines. 

Where there is also a conviction for the underlying offense, a consolidated fine guideline is

determined by the offense level that would have applied to the underlying offense absent a

conviction under 18 U.S.C. § 844(h), § 924(c), or § 929(a). This is required because the

offense level for the underlying offense may be reduced when there is also a conviction under

18 U.S.C. § 844(h), § 924(c), or § 929(a) in that any specific offense characteristic for

possession, brandishing, use, or discharge of a firearm is not applied (see Application Note

4). The Commission has not established a fine guideline range for the unusual case in which

there is no conviction for the underlying offense, although a fine is authorized under 18

U.S.C. § 3571.

Background: Section 844(h) of title 18, United States Code, provides a mandatory term of

imprisonment. Sections 924(c) and 929(a) of title 18, United States Code, provide mandatory

minimum terms of imprisonment. A sentence imposed pursuant to any of these statutes must be

imposed to run consecutively to any other term of imprisonment. To avoid double counting, when a

sentence under this section is imposed in conjunction with a sentence for an underlying offense, any

specific offense characteristic for explosive or firearm discharge, use, brandishing, or possession is

not applied in respect to such underlying offense.

* * *

§3B1.4. Using a Minor To Commit a Crime

If the defendant used or attempted to use a person less than eighteen years of age to

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commit the offense or assist in avoiding detection of, or apprehension for, the

offense, increase by 2 levels.

Commentary

Application Notes:

1. "Used or attempted to use" includes directing, commanding, encouraging, intimidating,

counseling, training, procuring, recruiting, or soliciting.

2. Do not apply this adjustment if the Chapter Two offense guideline incorporates this factor. 

For example, if the defendant receives an enhancement under §2D1.1(b)(14)(B) for involving

an individual less than 18 years of age in the offense, do not apply this adjustment.

3. If the defendant used or attempted to use more than one person less than eighteen years of

age, an upward departure may be warranted.

* * *

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

If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or

impede, the administration of justice with respect to the investigation, prosecution, or

sentencing of the instant offense of conviction, and (B) the obstructive conduct

related to (i) the defendant’s offense of conviction and any relevant conduct; or (ii) a

closely related offense, increase the offense level by 2 levels.

Commentary

Application Notes:

1. In General.—This adjustment applies if the defendant’s obstructive conduct (A) occurred

with respect to the investigation, prosecution, or sentencing of the defendant’s instant offense

of conviction, and (B) related to (i) the defendant’s offense of conviction and any relevant

conduct; or (ii) an otherwise closely related case, such as that of a co-defendant.

Obstructive conduct that occurred prior to the start of the investigation of the instant offense

of conviction may be covered by this guideline if the conduct was purposefully calculated,

and likely, to thwart the investigation or prosecution of the offense of conviction.

2. Limitations on Applicability of Adjustment.—This provision is not intended to punish a

defendant for the exercise of a constitutional right. A defendant’s denial of guilt (other than

a denial of guilt under oath that constitutes perjury), refusal to admit guilt or provide

information to a probation officer, or refusal to enter a plea of guilty is not a basis for

application of this provision. In applying this provision in respect to alleged false testimony

or statements by the defendant, the court should be cognizant that inaccurate testimony or

statements sometimes may result from confusion, mistake, or faulty memory and, thus, not all

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inaccurate testimony or statements necessarily reflect a willful attempt to obstruct justice.

3. Covered Conduct Generally.—Obstructive conduct can vary widely in nature, degree of

planning, and seriousness. Application Note 4 sets forth examples of the types of conduct to

which this adjustment is intended to apply. Application Note 5 sets forth examples of less

serious forms of conduct to which this enhancement is not intended to apply, but that

ordinarily can appropriately be sanctioned by the determination of the particular sentence

within the otherwise applicable guideline range. Although the conduct to which this

adjustment applies is not subject to precise definition, comparison of the examples set forth

in Application Notes 4 and 5 should assist the court in determining whether application of

this adjustment is warranted in a particular case.

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

types of conduct to which this adjustment applies:

(A) threatening, intimidating, or otherwise unlawfully influencing a co-defendant,

witness, or juror, directly or indirectly, or attempting to do so;

(B) committing, suborning, or attempting to suborn perjury, including during the course

of a civil proceeding if such perjury pertains to conduct that forms the basis of the

offense of conviction;

(C) producing or attempting to produce a false, altered, or counterfeit document or

record during an official investigation or judicial proceeding;

(D) destroying or concealing or directing or procuring another person to destroy or

conceal evidence that is material to an official investigation or judicial proceeding

(e.g., shredding a document or destroying ledgers upon learning that an official

investigation has commenced or is about to commence), or attempting to do so;

however, if such conduct occurred contemporaneously with arrest (e.g., attempting

to swallow or throw away a controlled substance), it shall not, standing alone, be

sufficient to warrant an adjustment for obstruction unless it resulted in a material

hindrance to the official investigation or prosecution of the instant offense or the

sentencing of the offender; 

(E) escaping or attempting to escape from custody before trial or sentencing; or willfully

failing to appear, as ordered, for a judicial proceeding; 

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

(G) providing a materially false statement to a law enforcement officer that significantly

obstructed or impeded the official investigation or prosecution of the instant offense;

(H) providing materially false information to a probation officer in respect to a

presentence or other investigation for the court;

(I) other conduct prohibited by obstruction of justice provisions under Title 18, United

States Code (e.g., 18 U.S.C. §§ 1510, 1511);

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(J) failing to comply with a restraining order or injunction issued pursuant to 21 U.S.C.

§ 853(e) or with an order to repatriate property issued pursuant to 21 U.S.C. §

853(p);

(K) threatening the victim of the offense in an attempt to prevent the victim from

reporting the conduct constituting the offense of conviction.

This adjustment also applies to any other obstructive conduct in respect to the official

investigation, prosecution, or sentencing of the instant offense where there is a separate

count of conviction for such conduct.

5. Examples of Conduct Ordinarily Not Covered.—Some types of conduct ordinarily do not

warrant application of this adjustment but may warrant a greater sentence within the

otherwise applicable guideline range or affect the determination of whether other guideline

adjustments apply (e.g., §3E1.1 (Acceptance of Responsibility)). However, if the defendant is

convicted of a separate count for such conduct, this adjustment will apply and increase the

offense level for the underlying offense (i.e., the offense with respect to which the obstructive

conduct occurred). See Application Note 8, below. 

The following is a non-exhaustive list of examples of the types of conduct to which this

application note applies:

(A) providing a false name or identification document at arrest, except where such

conduct actually resulted in a significant hindrance to the investigation or

prosecution of the instant offense;

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

Application Note 4(G) above applies;

(C) providing incomplete or misleading information, not amounting to a material

falsehood, in respect to a presentence investigation;

(D) avoiding or fleeing from arrest (see, however, §3C1.2 (Reckless Endangerment

During Flight));

(E) lying to a probation or pretrial services officer about defendant’s drug use while on

pre-trial release, although such conduct may be a factor in determining whether to

reduce the defendant’s sentence under §3E1.1 (Acceptance of Responsibility).

6. "Material" Evidence Defined.—"Material" evidence, fact, statement, or information, as used

in this section, means evidence, fact, statement, or information that, if believed, would tend to

influence or affect the issue under determination.

7. Inapplicability of Adjustment in Certain Circumstances.—If the defendant is convicted of an

offense covered by §2J1.1 (Contempt), §2J1.2 (Obstruction of Justice), §2J1.3 (Perjury or

Subornation of Perjury; Bribery of Witness), §2J1.5 (Failure to Appear by Material Witness),

§2J1.6 (Failure to Appear by Defendant), §2J1.9 (Payment to Witness), §2X3.1 (Accessory

After the Fact), or §2X4.1 (Misprision of Felony), this adjustment is not to be applied to the

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offense level for that offense except if a significant further obstruction occurred during the

investigation, prosecution, or sentencing of the obstruction offense itself (e.g., if the

defendant threatened a witness during the course of the prosecution for the obstruction

offense).

Similarly, if the defendant receives an enhancement under §2D1.1(b)(14)(D), do not apply

this adjustment.

8. Grouping Under §3D1.2(c).—If the defendant is convicted both of an obstruction offense

(e.g., 18 U.S.C. § 3146 (Penalty for failure to appear); 18 U.S.C. § 1621 (Perjury generally))

and an underlying offense (the offense with respect to which the obstructive conduct

occurred), the count for the obstruction offense will be grouped with the count for the

underlying offense under subsection (c) of §3D1.2 (Groups of Closely Related Counts). The

offense level for that group of closely related counts will be the offense level for the

underlying offense increased by the 2-level adjustment specified by this section, or the

offense level for the obstruction offense, whichever is greater.

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

accountable for the defendant’s own conduct and for conduct that the defendant aided or

abetted, counseled, commanded, induced, procured, or willfully caused.

* * *

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(C) Simple Possession of Crack Cocaine

§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, 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. §

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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).

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EXHIBIT K

ISSUE FOR COMMENT: RETROACTIVITY

On April 29, 2011, the Commission submitted to the Congress amendments to the sentencing

guidelines and official commentary, which become effective on November 1, 2011, unless Congress

acts to the contrary. Such amendments and the reasons for amendment subsequently were published

in the Federal Register. [citation].

Amendment __ pertaining to drug offenses has the effect of lowering guideline ranges. See

28 U.S.C. § 994(u) ("If the Commission reduces the term of imprisonment recommended in the

guidelines applicable to a particular offense or category of offenses, it shall specify in what

circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the

offense may be reduced."). The Commission seeks comment regarding whether, pursuant to 18

U.S.C. § 3582(c)(2) and 28 U.S.C. § 994(u), this amendment, or any part thereof, should be included

in subsection (c) of §1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline

Range (Policy Statement)) as an amendment that may be applied retroactively to previously

sentenced defendants.

The Commission also requests comment regarding whether, if it amends §1B1.10(c) to

include this amendment, it also should amend §1B1.10 to provide guidance to the courts on the

procedure to be used when applying an amendment retroactively under 18 U.S.C. § 3582(c)(2).

Part-by-Part Consideration of the Amendment Pertaining to Drug Offenses

Amendment __ pertaining to drug offenses contains three parts. The Commission seeks

comment on whether it should list the entire amendment, or one or more parts of the amendment, in

subsection (c) of §1B1.10 as an amendment that may be applied retroactively to previously sentenced

defendants.

Part A changes the Drug Quantity Table in §2D1.1 for offenses involving crack cocaine. 

This has the effect of lowering guideline ranges for certain defendants for offenses involving crack

cocaine.

Part B contains both mitigating and aggravating provisions for offenses involving drugs,

regardless of drug type. The mitigating provisions have the effect of lowering guideline ranges for

certain defendants in drug cases, and the aggravating provisions have the effect of raising guideline

ranges for certain defendants in drug cases.

Part C deletes the cross reference in §2D2.1(b)(1) under which an offender who possessed

more than 5 grams of crack cocaine was sentenced under §2D1.1. This has the effect of lowering

guideline ranges for certain defendants for offenses involving simple possession of crack cocaine.

For each of these three parts, the Commission requests comment on whether that part should

be listed in subsection (c) of §1B1.10 as an amendment that may be applied retroactively. Note that

if Part B were applied retroactively (in isolation, or in combination with Parts A and/or C), the court

would determine not only whether any mitigating provisions in Part B applied, but also whether any

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aggravating provisions in Part B applied. To the extent any aggravating provisions applied, the

aggravating effect of those provisions would act to offset the mitigating effect of changes made by

Parts A, B, and C, to the extent they apply, but in no event could the net effect result in the defendant

receiving a sentence higher than the sentence previously imposed. See 18 U.S.C. § 3582(c)(2)

(authorizing the court to "reduce", but not increase, the defendant's term of imprisonment).

For its consideration of Parts A and B, the Commission seeks comment on two options in

particular. Option 1 would include Part A as an amendment that may be applied retroactively, but

would not include Part B. Option 2 would include both Part A and Part B.

Other Guidance or Limitations for the Amendment Pertaining to Drug Offenses

If the Commission does list the entire amendment, or one or more parts of the amendment, in

subsection (c) of §1B1.10 as an amendment that may be applied retroactively to previously sentenced

defendants, should the Commission provide further guidance or limitations regarding the

circumstances in which and the amount by which sentences may be reduced?

In particular, should the Commission limit retroactivity only to a particular category of

defendants, such as (A) defendants in a particular criminal history category or categories (e.g.,

defendants in Criminal History Category I) or (B) defendants who received an adjustment under the

guidelines' "safety valve" provision (currently §2D1.1(b)(16))?

Should the Commission exclude from retroactivity certain categories of defendants whose

offense involved aggravating conduct such as, for example, (A) defendants who received an enhanced

penalty under §2D1.2 (Drug Offenses Occurring Near Protected Locations or Involving Underage or

Pregnant Individuals; Attempt or Conspiracy), (B) defendants who received an adjustment under

§3B1.1 (Aggravating Role), (C) defendants who received an adjustment under §3B1.4 (Using a

Minor to Commit a Crime), (D) defendants who received an enhancement under §2D1.1(b)(1) (i.e., if

"a dangerous weapon (including a firearm) was possessed"), (E) defendants who were sentenced to a

mandatory minimum term of imprisonment because of a conviction for a firearms offense (i.e., a

conviction under 18 U.S.C. §§ 844(h), 924(c), or 929(a)), or (F) defendants who are career offenders

under §4B1.1 (Career Offender)?

In considering whether to limit retroactivity to a particular category or categories of

defendants, how, if at all, should the Commission account for the fact that the jurisprudence that

applies to sentencing has changed to expand the discretionary authority of a sentencing court to

impose a sentence outside the guidelines framework? Should the Commission limit retroactivity only

to, for example, (A) defendants who were sentenced within the guideline range, (B) defendants who

were sentenced within the guideline range or who received a departure under Chapter Five, Part K,

(C) defendants sentenced before United States v. Booker, 543 U.S. 220 (2005), (D) defendants

sentenced before Kimbrough v. United States, 552 U.S. 85, 110 (2007) ("it would not be an abuse of

discretion for a district court to conclude when sentencing a particular defendant that the

crack/powder disparity yields a sentence 'greater than necessary' to achieve § 3553(a)'s purposes,

even in a mine-run case"), or (E) defendants sentenced before Spears v. United States, 555 U.S. 261,

129 S.Ct. 840, 844 (2009) ("we now clarify that district courts are entitled to reject and vary

categorically from the crack-cocaine Guidelines based on a policy disagreement with those

Guidelines")? Section 1B1.10 addresses this factor as follows:

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If the original term of imprisonment imposed was less than the term

of imprisonment provided by the guideline range applicable to the

defendant at the time of sentencing, a reduction comparably less

than the amended guideline range determined under subdivision (1)

of this subsection may be appropriate. However, if the original term

of imprisonment constituted a non-guideline sentence determined

pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, 543

U.S. 220 (2005), a further reduction generally would not be

appropriate.

Should the Commission amend §1B1.10 to provide further guidance on how the sentencing court, in

considering retroactivity, should account for this factor?

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