65400 Federal Register / Vol. 83, No. 244 / Thursday, December 20, 2018 / Notices 

UNITED STATES SENTENCING 

COMMISSION 

Sentencing Guidelines for United 

States Courts 

AGENCY: United States Sentencing 

Commission 

ACTION: Notice of proposed amendments 

to sentencing guidelines, policy 

statements, and commentary. Request 

for public comment, including public 

comment regarding retroactive 

application of any of the proposed 

amendments. Notice of public hearing. 

SUMMARY: Pursuant to section 994(a), 

(o), and (p) of title 28, United States 

Code, the United States Sentencing 

Commission is considering 

promulgating amendments to the 

sentencing guidelines, policy 

statements, and commentary. This 

notice sets forth the proposed 

amendments and, for each proposed 

amendment, a synopsis of the issues 

addressed by that amendment. This 

notice also sets forth several issues for 

comment, some of which are set forth 

together with the proposed 

amendments, and one of which 

(regarding retroactive application of 

proposed amendments) is set forth in 

the Supplementary Information section 

of this notice. 

DATES:

(1) Written Public Comment.—Written 

public comment regarding the proposed 

amendments and issues for comment set 

forth in this notice, including public 

comment regarding retroactive 

application of any of the proposed 

amendments, should be received by the 

Commission not later than February 19, 

2019. Written reply comments, which 

may only respond to issues raised 

during the original comment period, 

should be received by the Commission 

not later than March 15, 2019. Public 

comment regarding a proposed 

amendment received after the close of 

the comment period, and reply 

comment received on issues not raised 

during the original comment period, 

may not be considered. 

(2) Public Hearing.—The Commission 

may hold a public hearing regarding the 

proposed amendments and issues for 

comment set forth in this notice. Further 

information regarding any public 

hearing that may be scheduled, 

including requirements for testifying 

and providing written testimony, as 

well as the date, time, location, and 

scope of the hearing, will be provided 

by the Commission on its website at 

www.ussc.gov. 

ADDRESSES: All written comment should 

be sent to the Commission by electronic 

mail or regular mail. The email address 

for public comment is Public_

Comment@ussc.gov. The regular mail 

address for public comment is United 

States Sentencing Commission, One 

Columbus Circle NE, Suite 2–500, 

Washington, DC 200002–8002, 

Attention: Public Affairs—Proposed 

Amendments. 

FOR FURTHER INFORMATION CONTACT: 

Christine Leonard, Director, Office of 

Legislative and Public Affairs, (202) 

502–4500, pubaffairs@ussc.gov. 

SUPPLEMENTARY INFORMATION: The 

United States Sentencing Commission is 

an independent agency in the judicial 

branch of the United States 

Government. The Commission 

promulgates sentencing guidelines and 

policy statements for federal courts 

pursuant to 28 U.S.C. § 994(a). The 

Commission also periodically reviews 

and revises previously promulgated 

guidelines pursuant to 28 U.S.C. 

§ 994(o) and submits guideline 

amendments to the Congress not later 

than the first day of May each year 

pursuant to 28 U.S.C. § 994(p). 

Publication of a proposed amendment 

requires the affirmative vote of at least 

three voting members of the 

Commission and is deemed to be a 

request for public comment on the 

proposed amendment. See USSC Rules 

of Practice and Procedure 2.2, 4.4. In 

contrast, the affirmative vote of at least 

four voting members is required to 

promulgate an amendment and submit 

it to Congress. See id. 2.2; 28 U.S.C. 

§ 994(p). 

The proposed amendments in this 

notice are presented in one of two 

formats. First, some of the amendments 

are proposed as specific revisions to a 

guideline, policy statement, or 

commentary. Bracketed text within a 

proposed amendment indicates a 

heightened interest on the 

Commission’s part in comment and 

suggestions regarding alternative policy 

choices; for example, a proposed 

enhancement of [2][4][6] levels indicates 

that the Commission is considering, and 

invites comment on, alternative policy 

choices regarding the appropriate level 

of enhancement. Similarly, bracketed 

text within a specific offense 

characteristic or application note means 

that the Commission specifically invites 

comment on whether the proposed 

provision is appropriate. Second, the 

Commission has highlighted certain 

issues for comment and invites 

suggestions on how the Commission 

should respond to those issues. 

In summary, the proposed 

amendments and issues for comment set 

forth in this notice are as follows: 

(1) A two-part proposed amendment 

to § 1B1.10 (Reduction in Term of 

Imprisonment as a Result of Amended 

Guideline Range (Policy Statement)), 

including (A) three options for 

amending the policy statement and 

commentary in light of Koons v. United 

States, 138 S. Ct. 1783 (2018); and (B) 

two options for amending the 

commentary to resolve a circuit conflict 

concerning the application of 

§ 1B1.10(b)(2)(B), and a related issue for 

comment; 

(2) a multi-part proposed amendment 

to § 4B1.2 (Definitions of Terms Used in 

Section 4B1.1), including (A) 

amendments establishing that the 

categorical approach and modified 

categorical approach do not apply in 

determining whether a conviction is a 

‘‘crime of violence’’ or a ‘‘controlled 

substance offense’’ by (i) providing that, 

in making that determination, a court 

shall consider any element or 

alternative means for meeting an 

element of the offense committed by the 

defendant, as well as the conduct that 

formed the basis of the offense of 

conviction, (ii) allowing courts to look 

at a wider range of sources from the 

judicial record, beyond the statute of 

conviction, in determining the conduct 

that formed the basis of the offense of 

conviction, and (iii) making similar 

revisions to § 2L1.2 (Unlawfully 

Entering or Remaining in the United 

States), as well as conforming changes 

to the guidelines that use the terms 

‘‘crime of violence’’ and ‘‘controlled 

substance offense’’ and define these 

terms by making specific reference to 

§ 4B1.2, and related issues for comment; 

(B) three options to address the concern 

that certain robbery offenses, such as 

Hobbs Act robbery, no longer constitute 

a ‘‘crime of violence’’ under § 4B1.2, as 

amended in 2016, because these 

offenses do not meet either the generic 

definition of ‘‘robbery’’ or the new 

guidelines definition of ‘‘extortion,’’ and 

related issues for comment; (C) three 

options to address certain issues 

regarding the commentary provision 

stating that the terms ‘‘crime of 

violence’’ and ‘‘controlled substance 

offense’’ include the offenses of aiding 

and abetting, conspiring to commit, and 

attempting to commit a ‘‘crime of 

violence’’ and a ‘‘controlled substance 

offense,’’ and related issues for 

comment; and (D) revisions to the 

definition of ‘‘controlled substance 

offense’’ in § 4B1.2(b) to include: (i) 

Offenses involving an offer to sell a 

controlled substance, and (ii) offenses 

described in 46 U.S.C. § 70503(a) and 

§ 70506(b), and a related issue for 

comment; 


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(3) a multi-part proposed amendment 

addressing recently enacted legislation 

and miscellaneous guideline issues, 

including (A) amendments to Appendix 

A (Statutory Index) and the 

Commentary to § 2N2.1 (Violations of 

Statutes and Regulations Dealing with 

Any Food, Drug, Biological Product, 

Device, Cosmetic, Agricultural Product, 

or Consumer Product) in response to the 

FDA Reauthorization Act of 2017, 

Public Law 115–52 (Aug. 18, 2017), a 

technical correction to the Commentary 

to § 2N1.1 (Tampering or Attempting to 

Tamper Involving Risk of Death or 

Bodily Injury), and a related issue for 

comment; (B) amendments to Appendix 

A, § 2A5.2 (Interference with Flight 

Crew Member or Flight Attendant; 

Interference with Dispatch, Navigation, 

Operation, or Maintenance of Mass 

Transportation Vehicle), as well as the 

commentaries to § 2A2.4 (Obstructing or 

Impeding Officers) and § 2X5.2 (Class A 

Misdemeanors (Not Covered by Another 

Specific Offense Guideline)), in 

response to the FAA Reauthorization 

Act of 2018, Public Law 115–254 (Oct. 

8, 2018), and a related issue for 

comment; (C) amendments to Appendix 

A, § 2G1.1 (Promoting a Commercial Sex 

Act or Prohibited Sexual Conduct with 

an Individual Other than a Minor), and 

§ 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), in response 

to the Allow States and Victims to Fight 

Online Sex Trafficking Act of 2017, 

Public Law 115–164 (Apr. 11, 2018), 

and related issues for comment; (D) an 

amendment to subsection (d) of § 3D1.2 

(Grouping of Closely Related Counts) to 

provide that offenses covered by § 2G1.3 

are not grouped under that subsection; 

and (E) an amendment to the 

Commentary to § 5F1.7 (Shock 

Incarceration Program (Policy 

Statement)) to reflect the fact that the 

Bureau of Prisons no longer operates a 

shock incarceration program; and 

(4) a proposed amendment to make 

various technical changes to the 

Guidelines Manual, including (A) 

technical changes to reflect the editorial 

reclassification of certain provisions 

previously contained in the Appendix 

to Title 50, to new chapters 49 to 57 of 

Title 50 and to other titles of the Code; 

(B) technical changes throughout the 

Commentary to § 2D1.1 (Unlawful 

Manufacturing, Importing, Exporting, or 

Trafficking (Including Possession with 

Intent to Commit These Offenses); 

Attempt or Conspiracy), to, among other 

things, reorganize in alphabetical order 

the controlled substances contained in 

the tables therein to make them more 

user-friendly; (C) technical changes to 

the commentaries to § 2A4.2 

(Demanding or Receiving Ransom 

Money), § 2A6.1 (Threatening or 

Harassing Communications; Hoaxes; 

False Liens), and § 2B3.2 (Extortion by 

Force or Threat of Injury or Serious 

Damage), and to Appendix A, to provide 

references to the specific applicable 

provisions of 18 U.S.C. § 876; and (D) 

clerical changes to the background 

commentaries to § 1B1.11 (Use of 

Guidelines Manual in Effect on Date of 

Sentencing (Policy Statement)), § 3D1.1 

(Procedure for Determining Offense 

Level on Multiple Counts), and § 5G1.3 

(Imposition of a Sentence on a 

Defendant Subject to an Undischarged 

Term of Imprisonment or Anticipated 

State Term of Imprisonment). 

In addition, the Commission requests 

public comment regarding whether, 

pursuant to 18 U.S.C. § 3582(c)(2) and 

28 U.S.C. § 994(u), any proposed 

amendment published in this notice 

should be included in subsection (d) of 

§ 1B1.10 as an amendment that may be 

applied retroactively to previously 

sentenced defendants. The Commission 

lists in § 1B1.10(d) the specific 

guideline amendments that the court 

may apply retroactively under 18 U.S.C. 

§ 3582(c)(2). The Background 

Commentary to § 1B1.10 lists the 

purpose of the amendment, the 

magnitude of the change in the 

guideline range made by the 

amendment, and the difficulty of 

applying the amendment retroactively 

to determine an amended guideline 

range under § 1B1.10(b) as among the 

factors the Commission considers in 

selecting the amendments included in 

§ 1B1.10(d). To the extent practicable, 

public comment should address each of 

these factors. 

The text of the proposed amendments 

and related issues for comment are set 

forth below. Additional information 

pertaining to the proposed amendments 

and issues for comment described in 

this notice may be accessed through the 

Commission’s website at www.ussc.gov. 

Authority: 28 U.S.C. § 994(a), (o), (p), (x); 

USSC Rules of Practice and Procedure 2.2, 

4.3, 4.4. 

William H. Pryor Jr., 

Acting Chair. 

PROPOSED AMENDMENTS TO THE 

SENTENCING GUIDELINES, POLICY 

STATEMENTS, AND OFFICIAL 

COMMENTARY 

1. § 1B1.10 

Synopsis of Proposed Amendment: 

This proposed amendment contains two 

parts (Part A and Part B). The 

Commission is considering whether to 

promulgate either or both of these parts, 

as they are not mutually exclusive. 

Part A of the proposed amendment is 

the result of the Commission’s 

consideration of miscellaneous issues, 

including possible amendments to 

§ 1B1.10 (Reduction in Term of 

Imprisonment as a Result of Amended 

Guideline Range (Policy Statement)) in 

light of Koons v. United States, 138 S. 

Ct. 1783 (2018). See U.S. Sentencing 

Comm’n, ‘‘Notice of Final Priorities,’’ 83 

FR 43956 (Aug. 28, 2018). Part A would 

revise § 1B1.10 in light of Koons. 

Part B of the proposed amendment 

would resolve a circuit conflict 

concerning the application of § 1B1.10, 

pursuant to the Commission’s authority 

under 28 U.S.C. § 991(b)(1)(B) and 

Braxton v. United States, 500 U.S. 344 

(1991). See U.S. Sentencing Comm’n, 

‘‘Notice of Final Priorities,’’ 83 FR 

43956 (Aug. 28, 2018) (identifying 

resolution of circuit conflicts as a 

priority). An issue for comment is also 

provided. 

(A) Possible Amendments in Light of 

Koons v. United States 

Synopsis of Proposed Amendment: 

Pursuant to 18 U.S.C. § 3582(c), a court 

may modify a term of imprisonment if 

the defendant was initially sentenced 

based on a sentencing range that was 

subsequently lowered by a guideline 

amendment that the Commission has 

made retroactive. Section 3582(c)(2) 

provides: 

in the case of a defendant who has 

been sentenced to a term of 

imprisonment based on a sentencing 

range that has subsequently been 

lowered by the Sentencing Commission 

pursuant to 28 U.S.C. 994(o), upon 

motion of the defendant or the Director 

of the Bureau of Prisons, or on its own 

motion, the court may reduce the term 

of imprisonment, after considering the 

factors set forth in section 3553(a) to the 

extent that they are applicable, if such 

a reduction is consistent with applicable 

policy statements issued by the 

Sentencing Commission. 


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18 U.S.C. § 3582(c)(2). 

A provision of the Sentencing Reform 

Act, 28 U.S.C. § 994(u), in turn, directs 

the Commission to determine when and 

to what extent such modifications are 

appropriate. Section 994(a)(2)(C) of Title 

28 also directs the Commission to 

promulgate ‘‘general policy statements 

regarding application of the guidelines 

or any other aspect of sentencing or 

sentence implementation . . . including 

the appropriate use of . . . the sentence 

modification provisions set forth in 

section . . . 3582(c) of title 18.’’ 

The policy statement at § 1B1.10 

(Reduction in Term of Imprisonment as 

a Result of Amended Guideline Range 

(Policy Statement)) implements the 

Commission’s authority and 

responsibilities under these statutory 

provisions. Section 1B1.10(a) sets forth 

the eligibility requirements for a 

reduction in the defendant’s term of 

imprisonment under 18 U.S.C. 

§ 3582(c)(2) and the policy statement. 

Specifically, a defendant is eligible for 

a sentence reduction under the policy 

statement only if an amendment listed 

in § 1B1.10(d) ‘‘lower[ed] the 

defendant’s applicable guideline range.’’ 

The ‘‘applicable guideline range’’ is the 

range ‘‘that corresponds to the offense 

level and criminal history category 

determined pursuant to § 1B1.1(a), 

which is determined before 

consideration of any departure 

provision in the Guidelines Manual or 

any variance.’’ USSG § 1B1.10, 

comment. (n.1(A)). 

Section 1B1.10(b)(1) instructs that in 

determining whether, and to what 

extent, a reduction is warranted, the 

court shall determine the ‘‘amended 

guideline range’’ that would have 

applied if the amendments listed in 

§ 1B1.10(d) had been in effect when the 

defendant was sentenced. In making 

that determination, the court shall 

substitute only the amendments listed 

in subsection (d) for the corresponding 

guideline provisions that were in effect 

at the original sentencing, ‘‘leav[ing] all 

other guideline application decisions 

unaffected.’’ Subsection (b)(2)(A) further 

instructs that the court cannot reduce 

the defendant’s term of imprisonment 

below the bottom of the amended 

guideline range. However, subsection 

(b)(2)(B) provides an exception to this 

limitation: if the term of imprisonment 

originally imposed was less than the 

term provided by the then applicable 

guideline range ‘‘pursuant to a 

government motion to reflect the 

defendant’s substantial assistance to 

authorities, a reduction comparably less 

than the amended guideline range 

determined under [§ 1B1.10(b)(1)] may 

be appropriate.’’ 

Section 1B1.10(c) provides a special 

rule for determining the amended 

guideline range if the defendant was 

subject to a statutory mandatory 

minimum penalty when originally 

sentenced but was relieved of that 

mandatory minimum because the 

defendant provided substantial 

assistance to the government. Under the 

special rule, the amended guideline 

range ‘‘shall be determined without 

regard to the operation of’’ § 5G1.1 

(Sentencing on a Single Count of 

Conviction) and § 5G1.2 (Sentencing on 

Multiple Counts of Conviction), the 

guidelines providing that a statutory 

mandatory minimum penalty trumps 

the otherwise applicable guideline 

range. 

Recently, the Supreme Court decided 

Koons v. United States, 138 S. Ct. 1783 

(June 4, 2018), which held that certain 

defendants are statutorily ineligible for 

a sentence reduction under 18 U.S.C. 

§ 3582(c)(2). Specifically, Koons held 

that defendants whose initial guideline 

ranges fell entirely below a statutory 

mandatory minimum penalty, but who 

were originally sentenced below that 

penalty pursuant to a government 

motion for substantial assistance 

(‘‘below defendants’’), are ineligible for 

sentence reductions under section 

3582(c)(2). See Koons, 138 S. Ct. at 

1786–87. The Court reasoned that these 

below defendants’ original sentences 

were not ‘‘based on’’ their guideline 

ranges but were instead ‘‘based on’’ 

their statutory minimum penalties and 

the substantial assistance they provided 

to the government. Id. (quoting 18 

U.S.C. § 3582(c)(2)). As a result, below 

defendants do not satisfy the threshold 

requirement in section 3582(c)(2) that 

they be ‘‘initially sentenced ‘based on a 

sentencing range’ that was later lowered 

by the [Commission].’’ Id. 

Koons rested on the defendants’ 

statutory ineligibility for a sentence 

reduction under 18 U.S.C. § 3582(c)(2) 

and did not analyze the policy 

statement at § 1B1.10 or the correct 

application of the guidelines in sentence 

reduction proceedings. In addition, 

Koons did not address whether two 

other categories of defendants whose 

cases involve mandatory minimum 

sentences are eligible for relief: (1) those 

with guideline ranges that straddle the 

mandatory minimum penalty (‘‘straddle 

defendants’’) and (2) those with 

guideline ranges completely above the 

mandatory minimum penalty (‘‘above 

defendants’’). 

Part A of the proposed amendment 

would revise § 1B1.10 in light of the 

Supreme Court decision in Koons. 

First, Part A would revise subsection 

(a) and its corresponding commentary to 

clarify that a defendant is eligible for a 

reduction under the policy statement 

only if the defendant was ‘‘sentenced 

based on a guideline range.’’ Subsection 

(a)(1) would be revised to closely track 

section 3582(c)’s requirement that the 

defendant must be ‘‘sentenced based on 

a guideline range.’’ The proposed 

amendment would revise subsection 

(a)(2) to affirmatively state the 

requirements for eligibility rather than 

exclusions from eligibility. It would also 

add as a requirement for eligibility that 

the defendant was ‘‘sentenced based on 

a guideline range.’’ 

Second, Part A would revise 

subsection (b)(1) to clarify that the 

eligibility requirement in renumbered 

subsection (a)(2)(c)—that the 

amendment has the effect of lowering 

the defendant’s applicable guideline 

range—is determined by comparing the 

defendant’s applicable guideline range 

at original sentencing to the amended 

guideline range, as calculated in the 

manner described in subsection (b)(1). 

Finally, Part A provides three options 

for revising subsection (c), each of 

which would result in a different 

sentencing outcome for the defendants 

who remain eligible for a sentence 

reduction following Koons. 

Option 1 would make no change to 

subsection (c). As a result, for statutorily 

eligible defendants (straddle and above 

defendants) who received relief from a 

statutory mandatory minimum penalty 

because they provided substantial 

assistance, the amended guideline range 

would continue to be determined 

without regard to the operation of 

§§ 5G1.1 and 5G1.2. This option would 

permit courts to give statutorily eligible 

defendants the largest possible sentence 

reductions for their substantial 

assistance. It would, however, treat 

straddle and above defendants more 

favorably than below defendants, who 

are statutorily ineligible for any 

reduction. It would also treat straddle 

and above defendants more favorably 

than similarly situated defendants who 

are being sentenced for the first time, 

because §§ 5G1.1 and 5G1.2 would 

apply to defendants facing initial 

sentencing. 

Option 2 would provide that the 

amended guideline range is determined 

after operation of §§ 5G1.1 and 5G1.2. 

As a result, straddle defendants would 

not receive any reduction and above 

defendants would receive smaller 

reductions than they do under current 

subsection (c). This option would treat 

straddle and above defendants the same 

as below defendants. It would also treat 

all three categories of defendants the 


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same as similarly situated defendants 

facing initial sentencing. 

Option 3 would provide that the 

amended guideline range is restricted by 

§§ 5G1.1 and 5G1.2 only if it was so 

restricted at the time the defendant was 

originally sentenced. As a result, 

straddle defendants would not receive 

any reduction. Above defendants would 

be eligible for the largest possible 

reduction, as they are under current 

subsection (c). This option would, 

however, treat above defendants more 

favorably than straddle and below 

defendants, and more favorably than 

similarly situated defendants facing 

initial sentencing. 

Part A of the proposed amendment 

also makes conforming changes to the 

commentary. 

Proposed Amendment: 

Section 1B1.10 is amended— 

in subsection (a)(1) by striking ‘‘is 

serving a term of imprisonment, and the 

guideline range applicable to that 

defendant has subsequently been 

lowered’’ and inserting ‘‘was sentenced 

to a term of imprisonment based on a 

guideline range that has subsequently 

been lowered’’; 

in subsection (a)(2) by striking the 

following: 

‘‘Exclusions.—A reduction in the 

defendant’s term of imprisonment is not 

consistent with this policy statement 

and therefore is not authorized under 18 

U.S.C. § 3582(c)(2) if— 

(A) none of the amendments listed in 

subsection (d) is applicable to the 

defendant; or 

(B) an amendment listed in subsection 

(d) does not have the effect of lowering 

the defendant’s applicable guideline 

range.’’, 

and inserting the following: 

‘‘Eligibility.—A defendant is eligible 

for a reduction in the defendant’s term 

of imprisonment under 18 U.S.C. 

§ 3582(c) and this policy statement only 

if— 

(A) the defendant was sentenced 

based on a guideline range; 

(B) an amendment listed in subsection 

(d) is applicable to the defendant; and 

(C) that amendment has the effect of 

lowering the defendant’s applicable 

guideline range.’’; 

[Option 1 (which also includes 

changes to commentary): 

and in subsection (b)(1), by striking 

‘‘In determining whether, and to what 

extent, a reduction in the defendant’s 

term of imprisonment under 18 U.S.C. 

§ 3582(c)(2) and this policy statement is 

warranted,’’ and inserting ‘‘To 

determine whether the defendant is 

eligible under subsection (a)(2)(C) and 

the extent of any permissible reduction 

in the defendant’s term of 

imprisonment,’’, and by striking ‘‘leave 

all other guideline application decisions 

unaffected’’ and inserting ‘‘leave all 

other guideline application decisions 

unaffected, except as provided in 

subsection (c) below’’.] 

[Option 2 (which also includes 

changes to commentary): 

in subsection (b)(1), by striking ‘‘In 

determining whether, and to what 

extent, a reduction in the defendant’s 

term of imprisonment under 18 U.S.C. 

§ 3582(c)(2) and this policy statement is 

warranted,’’ and inserting ‘‘To 

determine whether the defendant is 

eligible under subsection (a)(2)(C) and 

the extent of any permissible reduction 

in the defendant’s term of 

imprisonment,’’, and by striking ‘‘leave 

all other guideline application decisions 

unaffected’’ and inserting ‘‘leave all 

other guideline application decisions 

unaffected, except as provided in 

subsection (c) below’’; 

and in subsection (c) by striking 

‘‘without regard to the operation of 

§ 5G1.1 (Sentencing on a Single Count 

of Conviction)’’ and inserting ‘‘after 

operation of § 5G1.1 (Sentencing on a 

Single Count of Conviction)’’.] 

[Option 3 (which also includes 

changes to commentary): 

in subsection (b)(1) by striking ‘‘In 

determining whether, and to what 

extent, a reduction in the defendant’s 

term of imprisonment under 18 U.S.C. 

§ 3582(c)(2) and this policy statement is 

warranted,’’ and inserting ‘‘To 

determine whether the defendant is 

eligible under subsection (a)(2)(C) and 

the extent of any permissible reduction 

in the defendant’s term of 

imprisonment,’’; 

and in subsection (c) by striking ‘‘the 

amended guideline range shall be 

determined without regard to the 

operation of § 5G1.1 (Sentencing on a 

Single Count of Conviction) and § 5G1.2 

(Sentencing on Multiple Counts of 

Conviction)’’ and inserting ‘‘the court 

shall not apply § 5G1.1 (Sentencing on 

a Single Count of Conviction) or § 5G1.2 

(Sentencing on Multiple Counts of 

Conviction) to replace or restrict the 

amended guideline range unless § 5G1.1 

or § 5G1.2 operated to restrict the 

guideline range at the time the 

defendant was sentenced’’.] 

The Commentary to § 1B1.10 

captioned ‘‘Application Notes’’ is 

amended— 

in Note 1 in paragraph (A) by striking 

the following: 

‘‘Eligibility.—Eligibility for 

consideration under 18 U.S.C. 

§ 3582(c)(2) is triggered only by an 

amendment listed in subsection (d) that 

lowers the applicable guideline range 

(i.e., the guideline range that 

corresponds to the offense level and 

criminal history category determined 

pursuant to § 1B1.1(a), which is 

determined before consideration of any 

departure provision in the Guidelines 

Manual or any variance). Accordingly, a 

reduction in the defendant’s term of 

imprisonment is not authorized under 

18 U.S.C. § 3582(c)(2) and is not 

consistent with this policy statement if: 

(i) none of the amendments listed in 

subsection (d) is applicable to the 

defendant; or (ii) an amendment listed 

in subsection (d) is applicable to the 

defendant but the amendment does not 

have the effect of lowering the 

defendant’s applicable guideline range 

because of the operation of another 

guideline or statutory provision (e.g., a 

statutory mandatory minimum term of 

imprisonment).’’, 

and inserting the following: 

‘‘Eligibility.—Under 18 U.S.C. 

§ 3582(c)(2), a defendant may obtain a 

reduction in his term of imprisonment 

only if the defendant was originally 

sentenced ‘based on a sentencing range 

that has subsequently lowered by the 

Sentencing Commission.’ Subsection 

(a)(2)(A) therefore provides that a 

defendant is eligible for a reduction 

under the statute and this policy 

statement only if ‘the defendant was 

sentenced based on a guideline range.’ 

For purposes of 18 U.S.C. § 3582(c)(2), 

a defendant was sentenced ‘based on a 

guideline range’ only if that range 

played a relevant part in the framework 

that the sentencing court used in 

imposing the sentence. See Hughes v. 

United States, 138 S. Ct. 1765 (2018). 

Accordingly, a defendant is not 

sentenced ‘based on a guideline range’ 

if, pursuant to § 5G1.1(b), the guideline 

range that would otherwise have 

applied was superseded, and the 

statutorily required minimum sentence 

became the defendant’s guideline 

sentence. See Koons v. United States, 

138 S. Ct. 1783 (2018). If a defendant is 

ineligible for a reduction under 

subsection (a)(2)(A), the court shall not 

apply any other provisions of this policy 

statement and may not order a reduction 

in the defendant’s term of 

imprisonment. 

Subsection (a)(2)(C) further provides 

that a defendant is eligible for a 

reduction in his term of imprisonment 

only if an amendment listed in 

subsection (d) has the effect of lowering 

the defendant’s applicable guideline 

range. The ‘applicable guideline range’ 

is the guideline range that corresponds 

to the offense level and criminal history 

category determined pursuant to 

§ 1B1.1(a), which is determined before 

consideration of any departure 

provision in the Guidelines Manual or 


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any variance. Accordingly, a defendant 

is not eligible for a reduction if an 

amendment listed in subsection (d) is 

applicable to the defendant but the 

amendment does not have the effect of 

lowering the defendant’s applicable 

guideline range because of the operation 

of another guideline or statutory 

provision (e.g., a statutory mandatory 

minimum term of imprisonment). To 

determine whether a defendant is 

eligible for a reduction under subsection 

(a)(2)(C), and the permissible amount of 

the reduction, if any, the court must first 

determine the defendant’s amended 

guideline range, as provided in 

subsection (b)(1).’’; 

[Option 1 and Option 2 would also 

include the following changes to Notes 

2 and 3: 

in Note 2 by striking ‘‘All other 

guideline application decisions remain 

unaffected’’ and inserting ‘‘All other 

guideline application decisions remain 

unaffected, except as provided in 

subsection (c)’’; 

in Note 3 by striking ‘‘limit the extent 

to which the court may reduce the 

defendant’s term of imprisonment’’ and 

inserting ‘‘limit the extent to which the 

court may reduce an otherwise eligible 

defendant’s term of imprisonment’’;] 

[Option 1 continued: 

and in Note 4(B)— 

by striking ‘‘Ordinarily, § 5G1.1 

would operate to restrict the amended 

guideline range to precisely 120 

months’’ and inserting ‘‘Ordinarily, 

§ 5G1.1 would operate to replace the 

amended guideline range with a 

guideline sentence of precisely 120 

months’’; 

and by striking ‘‘the amended 

guideline range is considered to be 87 

to 108 months (i.e., unrestricted by 

operation of § 5G1.1 and the statutory 

minimum of 120 months)’’ and inserting 

‘‘the amended guideline range is 

considered to be 87 to 108 months (i.e., 

not replaced by operation of § 5G1.1 

with the statutory minimum of 120 

months)’’.] 

[Option 2 continued: 

and in Note 4 by striking the 

following: 

‘‘Application of Subsection (c).—As 

stated in subsection (c), if the case 

involves a statutorily required minimum 

sentence and the court had the authority 

to impose a sentence below the 

statutorily required minimum sentence 

pursuant to a government motion to 

reflect the defendant’s substantial 

assistance to authorities, then for 

purposes of this policy statement the 

amended guideline range shall be 

determined without regard to the 

operation of § 5G1.1 (Sentencing on a 

Single Count of Conviction) and § 5G1.2 

(Sentencing on Multiple Counts of 

Conviction). For example: 

(A) Defendant A is subject to a 

mandatory minimum term of 

imprisonment of 120 months. The 

original guideline range at the time of 

sentencing was 135 to 168 months, 

which is entirely above the mandatory 

minimum, and the court imposed a 

sentence of 101 months pursuant to a 

government motion to reflect the 

defendant’s substantial assistance to 

authorities. The court determines that 

the amended guideline range as 

calculated on the Sentencing Table is 

108 to 135 months. Ordinarily, § 5G1.1 

would operate to restrict the amended 

guideline range to 120 to 135 months, to 

reflect the mandatory minimum term of 

imprisonment. For purposes of this 

policy statement, however, the amended 

guideline range remains 108 to 135 

months. 

To the extent the court considers it 

appropriate to provide a reduction 

comparably less than the amended 

guideline range pursuant to subsection 

(b)(2)(B), Defendant A’s original 

sentence of 101 months amounted to a 

reduction of approximately 25 percent 

below the minimum of the original 

guideline range of 135 months. 

Therefore, an amended sentence of 81 

months (representing a reduction of 

approximately 25 percent below the 

minimum of the amended guideline 

range of 108 months) would amount to 

a comparable reduction and may be 

appropriate. 

(B) Defendant B is subject to a 

mandatory minimum term of 

imprisonment of 120 months. The 

original guideline range at the time of 

sentencing (as calculated on the 

Sentencing Table) was 108 to 135 

months, which was restricted by 

operation of § 5G1.1 to a range of 120 to 

135 months. See § 5G1.1(c)(2). The court 

imposed a sentence of 90 months 

pursuant to a government motion to 

reflect the defendant’s substantial 

assistance to authorities. The court 

determines that the amended guideline 

range as calculated on the Sentencing 

Table is 87 to 108 months. Ordinarily, 

§ 5G1.1 would operate to restrict the 

amended guideline range to precisely 

120 months, to reflect the mandatory 

minimum term of imprisonment. See 

§ 5G1.1(b). For purposes of this policy 

statement, however, the amended 

guideline range is considered to be 87 

to 108 months (i.e., unrestricted by 

operation of § 5G1.1 and the statutory 

minimum of 120 months). 

To the extent the court considers it 

appropriate to provide a reduction 

comparably less than the amended 

guideline range pursuant to subsection 

(b)(2)(B), Defendant B’s original 

sentence of 90 months amounted to a 

reduction of approximately 25 percent 

below the original guideline range of 

120 months. Therefore, an amended 

sentence of 65 months (representing a 

reduction of approximately 25 percent 

below the minimum of the amended 

guideline range of 87 months) would 

amount to a comparable reduction and 

may be appropriate.’’, 

and inserting the following: 

‘‘Application of Subsection (c).—As 

stated in subsection (c), if the case 

involves a statutorily required minimum 

sentence and the court had the authority 

to impose a sentence below the 

statutorily required minimum sentence 

pursuant to a government motion to 

reflect the defendant’s substantial 

assistance to authorities, then for 

purposes of this policy statement the 

amended guideline range shall be 

determined after operation of § 5G1.1 

(Sentencing on a Single Count of 

Conviction) and § 5G1.2 (Sentencing on 

Multiple Counts of Conviction). For 

example: 

(A) Defendant A is subject to a 

mandatory minimum term of 

imprisonment of 120 months. The 

original guideline range at the time of 

sentencing was 135 to 168 months, 

which is entirely above the mandatory 

minimum, and the court imposed a 

sentence of 101 months pursuant to a 

government motion to reflect the 

defendant’s substantial assistance to 

authorities. The court determines that 

the amended guideline range as 

calculated on the Sentencing Table is 

108 to 135 months. For purposes of this 

policy statement, the amended 

guideline range is considered to be 120 

to 135 months (i.e., restricted by 

operation of § 5G1.1(c)(2) to reflect the 

statutory minimum of 120 months). 

To the extent the court considers it 

appropriate to provide a reduction 

comparably less than the amended 

guideline range pursuant to subsection 

(b)(2)(B), Defendant A’s original 

sentence of 101 months amounted to a 

reduction of approximately 25 percent 

below the minimum of the original 

guideline range of 135 months. 

Therefore, an amended sentence of 90 

months (representing a reduction of 

approximately 25 percent below the 

minimum of the amended guideline 

range of 120 months) would amount to 

a comparable reduction and may be 

appropriate. 

(B) Defendant B is subject to a 

mandatory minimum term of 

imprisonment of 120 months. The 

original guideline range at the time of 

sentencing (as calculated on the 

Sentencing Table) was 108 to 135 


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months, which was restricted by 

operation of § 5G1.1 to a range of 120 to 

135 months. See § 5G1.1(c)(2). The court 

imposed a sentence of 90 months 

pursuant to a government motion to 

reflect the defendant’s substantial 

assistance to authorities. The court 

determines that the amended guideline 

range as calculated on the Sentencing 

Table is 87 to 108 months. For purposes 

of this policy statement, § 5G1.1 would 

replace the amended guideline range as 

calculated on the Sentencing Table with 

a guideline sentence of precisely 120 

months, to reflect the mandatory 

minimum term of imprisonment. See 

§ 5G1.1(b). 

To the extent the court considers it 

appropriate to provide a reduction 

comparably less than the amended 

guideline range pursuant to subsection 

(b)(2)(B), Defendant B’s original 

sentence of 90 months amounted to a 

reduction of approximately 25 percent 

below the original guideline range of 

120 months. However, subsection 

(b)(2)(B) precludes this defendant from 

receiving any further reduction, because 

the point from which any comparable 

reduction would be determined has not 

changed; the minimum of the original 

guideline range (120 months) and the 

amended guideline range (120 months) 

are the same, so any comparable 

reduction that may be appropriate under 

subsection (b)(2)(B) would be equivalent 

to the reduction Defendant B already 

received in the original sentence of 90 

months.’’.] 

[Option 3 continued: 

and in Note 4 by striking the 

following: 

‘‘Application of Subsection (c).—As 

stated in subsection (c), if the case 

involves a statutorily required minimum 

sentence and the court had the authority 

to impose a sentence below the 

statutorily required minimum sentence 

pursuant to a government motion to 

reflect the defendant’s substantial 

assistance to authorities, then for 

purposes of this policy statement the 

amended guideline range shall be 

determined without regard to the 

operation of § 5G1.1 (Sentencing on a 

Single Count of Conviction) and § 5G1.2 

(Sentencing on Multiple Counts of 

Conviction). For example: 

(A) Defendant A is subject to a 

mandatory minimum term of 

imprisonment of 120 months. The 

original guideline range at the time of 

sentencing was 135 to 168 months, 

which is entirely above the mandatory 

minimum, and the court imposed a 

sentence of 101 months pursuant to a 

government motion to reflect the 

defendant’s substantial assistance to 

authorities. The court determines that 

the amended guideline range as 

calculated on the Sentencing Table is 

108 to 135 months. Ordinarily, § 5G1.1 

would operate to restrict the amended 

guideline range to 120 to 135 months, to 

reflect the mandatory minimum term of 

imprisonment. For purposes of this 

policy statement, however, the amended 

guideline range remains 108 to 135 

months. 

To the extent the court considers it 

appropriate to provide a reduction 

comparably less than the amended 

guideline range pursuant to subsection 

(b)(2)(B), Defendant A’s original 

sentence of 101 months amounted to a 

reduction of approximately 25 percent 

below the minimum of the original 

guideline range of 135 months. 

Therefore, an amended sentence of 81 

months (representing a reduction of 

approximately 25 percent below the 

minimum of the amended guideline 

range of 108 months) would amount to 

a comparable reduction and may be 

appropriate. 

(B) Defendant B is subject to a 

mandatory minimum term of 

imprisonment of 120 months. The 

original guideline range at the time of 

sentencing (as calculated on the 

Sentencing Table) was 108 to 135 

months, which was restricted by 

operation of § 5G1.1 to a range of 120 to 

135 months. See § 5G1.1(c)(2). The court 

imposed a sentence of 90 months 

pursuant to a government motion to 

reflect the defendant’s substantial 

assistance to authorities. The court 

determines that the amended guideline 

range as calculated on the Sentencing 

Table is 87 to 108 months. Ordinarily, 

§ 5G1.1 would operate to restrict the 

amended guideline range to precisely 

120 months, to reflect the mandatory 

minimum term of imprisonment. See 

§ 5G1.1(b). For purposes of this policy 

statement, however, the amended 

guideline range is considered to be 87 

to 108 months (i.e., unrestricted by 

operation of § 5G1.1 and the statutory 

minimum of 120 months). 

To the extent the court considers it 

appropriate to provide a reduction 

comparably less than the amended 

guideline range pursuant to subsection 

(b)(2)(B), Defendant B’s original 

sentence of 90 months amounted to a 

reduction of approximately 25 percent 

below the original guideline range of 

120 months. Therefore, an amended 

sentence of 65 months (representing a 

reduction of approximately 25 percent 

below the minimum of the amended 

guideline range of 87 months) would 

amount to a comparable reduction and 

may be appropriate.’’, 

and inserting the following: 

‘‘Application of Subsection (c).—As 

stated in subsection (c), if the case 

involves a statutorily required minimum 

sentence and the court had the authority 

to impose a sentence below the 

statutorily required minimum sentence 

pursuant to a government motion to 

reflect the defendant’s substantial 

assistance to authorities, then for 

purposes of this policy statement the 

court shall not apply § 5G1.1 

(Sentencing on a Single Count of 

Conviction) or § 5G1.2 (Sentencing on 

Multiple Counts of Conviction) to 

replace or restrict the amended 

guideline range unless § 5G1.1 or 

§ 5G1.2 operated to restrict the guideline 

range at the time the defendant was 

sentenced. For example: 

(A) Defendant A is subject to a 

mandatory minimum term of 

imprisonment of 120 months. The 

original guideline range at the time of 

sentencing was 135 to 168 months, 

which is entirely above the mandatory 

minimum, and the court imposed a 

sentence of 101 months pursuant to a 

government motion to reflect the 

defendant’s substantial assistance to 

authorities. The original range of 135 to 

168 months was entirely above the 

mandatory minimum, so § 5G1.1 did not 

operate to replace or restrict that range. 

The court determines that the amended 

guideline range as calculated on the 

Sentencing Table is 108 to 135 months. 

Ordinarily, § 5G1.1 would operate to 

restrict the amended guideline range to 

120 to 135 months, to reflect the 

mandatory minimum term of 

imprisonment. For purposes of this 

policy statement, however, the amended 

guideline range remains 108 to 135 

months. The court does not apply 

§ 5G1.1 to the amended guideline range 

because § 5G1.1 was not applied when 

the defendant was originally sentenced. 

To the extent the court considers it 

appropriate to provide a reduction 

comparably less than the amended 

guideline range pursuant to subsection 

(b)(2)(B), Defendant A’s original 

sentence of 101 months amounted to a 

reduction of approximately 25 percent 

below the minimum of the original 

guideline range of 135 months. 

Therefore, an amended sentence of 81 

months (representing a reduction of 

approximately 25 percent below the 

minimum of the amended guideline 

range of 108 months) would amount to 

a comparable reduction and may be 

appropriate. 

(B) Defendant B is subject to a 

mandatory minimum term of 

imprisonment of 120 months. The 

original guideline range at the time of 

sentencing (as calculated on the 

Sentencing Table) was 108 to 135 


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months, which was restricted by 

operation of § 5G1.1 to a range of 120 to 

135 months. See § 5G1.1(c)(2). The court 

imposed a sentence of 90 months 

pursuant to a government motion to 

reflect the defendant’s substantial 

assistance to authorities. The court 

determines that the amended guideline 

range as calculated on the Sentencing 

Table is 87 to 108 months. Section 

5G1.1 would operate to replace the 

amended guideline range as calculated 

on the Sentencing Table with a 

guideline sentence of precisely 120 

months, to reflect the mandatory 

minimum term of imprisonment. See 

§ 5G1.1(b). The court should apply 

§ 5G1.1 to the amended guideline range 

because § 5G1.1 was applied when the 

defendant was originally sentenced. 

To the extent the court considers it 

appropriate to provide a reduction 

comparably less than the amended 

guideline range pursuant to subsection 

(b)(2)(B), Defendant B’s original 

sentence of 90 months amounted to a 

reduction of approximately 25 percent 

below the original guideline range of 

120 months. However, subsection 

(b)(2)(B) precludes this defendant from 

receiving any further reduction, because 

the point from which any comparable 

reduction would be determined has not 

changed; the minimum of the original 

guideline range (120 months) and the 

minimum of the amended range (120 

months) are the same, so any 

comparable reduction that may be 

appropriate under subsection (b)(2)(B) 

would be equivalent to the reduction 

Defendant B already received in the 

original sentence of 90 months.’’.] 

(B) Resolution of Circuit Conflict 

Synopsis of Proposed Amendment: In 

addition to the issues raised by Koons 

v. United States, 138 S. Ct. 1783 (2018), 

a circuit conflict has emerged regarding 

the application of § 1B1.10(b)(2)(B). 

Section 1B1.10(b)(2)(A) instructs that, in 

acting on a motion under 18 U.S.C. 

§ 3582(c)(2), a court cannot reduce a 

defendant’s term of imprisonment to a 

term that is less than the amended 

guideline minimum, as calculated under 

§ 1B1.10(b)(1). However, 

§ 1B1.10(b)(2)(B) provides an exception 

to this limitation: if the term of 

imprisonment originally imposed was 

less than the applicable guideline range 

at the time of sentencing ‘‘pursuant to 

a government motion to reflect the 

defendant’s substantial assistance to 

authorities, a reduction comparably less 

than the amended guideline range 

determined under [§ 1B1.10(b)(1)] may 

be appropriate.’’ 

Circuit courts have disagreed about 

whether § 1B1.10(b)(2)(B) allows a court 

to reduce a sentence below the amended 

guideline range to reflect departures 

other than substantial assistance that the 

defendant received at his original 

sentencing or whether any sentence 

reduction may reflect only the departure 

amount attributable to substantial 

assistance. The Sixth and Eleventh 

Circuits have held that a court may 

reduce a sentence below the amended 

guideline range by an amount 

attributable only to the substantial 

assistance departure. See United States 

v. Taylor, 815 F.3d 248 (6th Cir. 2016); 

United States v. Marroquin-Medina, 817 

F.3d 1285 (11th Cir. 2016); see also 

United States v. Wright, 562 F. App’x 

885 (11th Cir. 2014). The Seventh and 

Ninth Circuits have held that, if a 

defendant received a substantial 

assistance departure, a court may reduce 

the defendant’s sentence further below 

the amended guideline minimum to 

reflect other departures or variances the 

defendant received, in addition to the 

substantial assistance departure. See 

United States v. Phelps, 823 F.3d 1084 

(7th Cir. 2016); United States v. D.M., 

869 F.3d 1133 (9th Cir. 2017). 

Part B of the proposed amendment 

would revise Application Note 3 of the 

Commentary to § 1B1.10 (Reduction in 

Term of Imprisonment as a Result of 

Amended Guideline Range (Policy 

Statement)) to resolve this circuit 

conflict. Part B provides two options for 

resolving the conflict. 

Option 1 would adopt the approach of 

the Sixth and Eleventh Circuits. It 

would revise Application Note 3 to state 

that in a case in which the exception 

provided by subsection (b)(2)(B) applies 

and the defendant received both a 

substantial assistance departure and at 

least one other departure or variance, a 

reduction ‘‘comparably less’’ than the 

defendant’s amended guideline range 

may take into account only the 

substantial assistance departure. 

Option 2 would adopt the approach of 

the Seventh and Ninth Circuits. It 

would revise Application Note 3 to state 

that in a case in which the exception 

provided by subsection (b)(2)(B) applies 

and the defendant received both a 

substantial assistance departure and at 

least one other departure or variance, a 

reduction ‘‘comparably less’’ than the 

amended guideline range may take into 

account all the departures and variances 

that the defendant received. 

An issue for comment is also 

provided. 

Proposed Amendment: 

The Commentary to § 1B1.10 

captioned ‘‘Application Notes’’ is 

amended in Note 3 by striking the 

following: 

‘‘Subsection (b)(2)(B) provides an 

exception to this limitation, which 

applies if the 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 pursuant to a 

government motion to reflect the 

defendant’s substantial assistance to 

authorities. In such a case, the court 

may reduce the defendant’s term, but 

the reduction is not limited by 

subsection (b)(2)(A) to the minimum of 

the amended guideline range. Instead, 

as provided in subsection (b)(2)(B), the 

court may, if appropriate, provide a 

reduction comparably less than the 

amended guideline range. Thus, if the 

term of imprisonment imposed in the 

example provided above was 56 months 

pursuant to a government motion to 

reflect the defendant’s substantial 

assistance to authorities (representing a 

downward departure of 20 percent 

below the minimum term of 

imprisonment provided by the guideline 

range applicable to the defendant at the 

time of sentencing), a reduction to a 

term of imprisonment of 41 months 

(representing a reduction of 

approximately 20 percent below the 

minimum term of imprisonment 

provided by the amended guideline 

range) would amount to a comparable 

reduction and may be appropriate. 

The provisions authorizing such a 

government motion are § 5K1.1 

(Substantial Assistance to Authorities) 

(authorizing, upon government motion, 

a downward departure based on the 

defendant’s substantial assistance); 18 

U.S.C. § 3553(e) (authorizing the court, 

upon government motion, to impose a 

sentence below a statutory minimum to 

reflect the defendant’s substantial 

assistance); and Fed. R. Crim. P. 35(b) 

(authorizing the court, upon government 

motion, to reduce a sentence to reflect 

the defendant’s substantial assistance).’’, 

and inserting the following: 

‘‘Subsection (b)(2)(B) provides an 

exception to this limitation, which 

applies if the 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 pursuant to a 

government motion to reflect the 

defendant’s substantial assistance to 

authorities. The provisions authorizing 

such a government motion are § 5K1.1 

(Substantial Assistance to Authorities) 

(authorizing, upon government motion, 

a downward departure based on the 

defendant’s substantial assistance); 18 

U.S.C. § 3553(e) (authorizing the court, 

upon government motion, to impose a 

sentence below a statutory minimum to 

reflect the defendant’s substantial 


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assistance); and Fed. R. Crim. P. 35(b) 

(authorizing the court, upon government 

motion, to reduce a sentence to reflect 

the defendant’s substantial assistance). 

In a case in which the exception 

provided by subsection (b)(2)(B) applies, 

the court may reduce the defendant’s 

term, but the reduction is not limited by 

subsection (b)(2)(A) to the minimum of 

the amended guideline range. Instead, 

as provided in subsection (b)(2)(B), the 

court may, if appropriate, provide a 

reduction comparably less than the 

amended guideline range. 

[Option 1: 

If the 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 pursuant to one or more 

departures or variances in addition to a 

substantial assistance departure, the 

reduction under subsection (b)(2)(B) 

may take into account only the 

substantial assistance departure. Thus, 

if the term of imprisonment imposed in 

the example above was 56 months 

(representing a downward departure of 

20 percent below the minimum of the 

guideline range applicable to the 

defendant at the time of sentencing), 

and that departure was solely pursuant 

to a government motion to reflect the 

defendant’s substantial assistance, then 

a reduction of approximately 20 percent 

below the minimum of the amended 

guideline range, to a term of 

imprisonment of 41 months, would be 

a comparable reduction and may be 

appropriate. If, however, the 56-month 

term of imprisonment reflected both a 

departure of 10 percent below the 

minimum of the applicable guideline 

range pursuant to a substantialassistance motion and a variance of an 

additional 10 percent below the 

applicable range because of the history 

and characteristics of the defendant, 

then only a reduction of approximately 

10 percent (representing solely the 

departure for substantial assistance), to 

a term of imprisonment of 46 months, 

would be a comparable reduction and 

may be appropriate.] 

[Option 2: 

If the 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 pursuant to one or more 

departures or variances in addition to a 

substantial assistance departure, the 

reduction under subsection (b)(2)(B) 

may take into account all the departures 

and variances that the defendant 

received. Thus, if the term of 

imprisonment imposed in the example 

above was 56 months (representing 

downward departures or variances 

totaling 20 percent below the minimum 

term of the guideline range applicable to 

the defendant at the time of sentencing), 

and at least part of that below-guideline 

sentence was pursuant to a government 

motion to reflect the defendant’s 

substantial assistance, then a reduction 

of approximately 20 percent below the 

minimum of the amended guideline 

range, to a term of imprisonment of 41 

months, would be a comparable 

reduction and may be appropriate.]’’. 

Issue for Comment: 

1. Option 2 of Part B of the proposed 

amendment would revise Application 

Note 3 of the Commentary to § 1B1.10 

(Reduction in Term of Imprisonment as 

a Result of Amended Guideline Range 

(Policy Statement)) to state that where 

the exception provided by 

§ 1B1.10(b)(2)(B) applies and the 

defendant received both a substantial 

assistance departure and at least one 

other departure or variance, a reduction 

‘‘comparably less’’ than the defendant’s 

amended guideline range may take into 

account not only the substantial 

assistance departure but also any other 

departure or variance that the defendant 

received. If the Commission adopts this 

approach, should the Commission limit 

the departures and variances that may 

be considered? For example, should the 

Commission provide that a comparable 

reduction may take into account only 

departures and not variances? Should 

the Commission provide that a 

comparable reduction may take into 

account only certain, specified types of 

departures or variances? If so, which 

ones? Or should the Commission 

provide that a comparable reduction 

generally may take into account 

departures and variances other than 

substantial assistance, but one or more 

particular types of departures or 

variances may not be considered? If so, 

which ones? 

2. Career Offender 

Synopsis of Proposed Amendment: 

This proposed amendment is a result of 

the Commission’s consideration of 

possible amendments to § 4B1.2 

(Definitions of Terms Used in Section 

4B1.1) to (A) allow courts to consider 

the actual conduct of the defendant, 

rather than only the elements of the 

offense (i.e., ‘‘categorical approach’’), in 

determining whether an offense is a 

crime of violence or a controlled 

substance offense; and (B) address 

various application issues, including the 

meaning of ‘‘robbery’’ and ‘‘extortion,’’ 

and the treatment of inchoate offenses 

and offenses involving an offer to sell a 

controlled substance. See U.S. 

Sentencing Comm’n, ‘‘Notice of Final 

Priorities,’’ 83 FR 43956 (Aug. 28, 2018). 

The proposed amendment contains four 

parts (Parts A through D). The 

Commission is considering whether to 

promulgate any or all of these parts, as 

they are not mutually exclusive. 

Part A of the proposed amendment 

would amend § 4B1.2 to establish that 

the categorical approach and modified 

categorical approach do not apply in 

determining whether a conviction is a 

‘‘crime of violence’’ or a ‘‘controlled 

substance offense.’’ Specifically, it 

would provide that, in making that 

determination, a court shall consider 

any element or alternative means for 

meeting an element of the offense 

committed by the defendant, as well as 

the conduct that formed the basis of the 

offense of conviction. In addition, Part 

A would allow courts to look at a wider 

range of sources from the judicial 

record, beyond the statute of conviction, 

in determining the conduct that formed 

the basis of the offense of conviction. 

Part A would also make similar 

revisions to § 2L1.2 (Unlawfully 

Entering or Remaining in the United 

States), as well as conforming changes 

to the guidelines that use the terms 

‘‘crime of violence’’ and ‘‘controlled 

substance offense’’ and define these 

terms by making specific reference to 

§ 4B1.2. Issues for comment are also 

provided. 

Part B of the proposed amendment 

would address the concern that certain 

robbery offenses, such as Hobbs Act 

robbery, no longer constitute a ‘‘crime of 

violence’’ under § 4B1.2, as amended in 

2016, because these offenses do not 

meet either the generic definition of 

‘‘robbery’’ or the new guidelines 

definition of ‘‘extortion.’’ Three options 

are presented. Issues for comment are 

also provided. 

Part C of the proposed amendment 

would amend § 4B1.2 to address certain 

issues regarding the commentary 

provision stating that the terms ‘‘crime 

of violence’’ and ‘‘controlled substance 

offense’’ include the offenses of aiding 

and abetting, conspiring to commit, and 

attempting to commit a ‘‘crime of 

violence’’ and a ‘‘controlled substance 

offense.’’ Three options are presented. 

Issues for comment are also provided. 

Part D of the proposed amendment 

would amend the definition of 

‘‘controlled substance offense’’ in 

§ 4B1.2(b) to include offenses involving 

an offer to sell a controlled substance 

and offenses described in 46 U.S.C. 

§ 70503(a) and § 70506(b). An issue for 

comment is also provided. 


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(A) Categorical Approach 

Synopsis of Proposed Amendment: A 

number of statutes and guidelines 

provide enhanced penalties for 

defendants convicted of offenses that fit 

within a particular category of crimes. 

Courts typically determine whether a 

conviction fits within a particular 

category of crimes through the 

application of the ‘‘categorical 

approach’’ set forth by the Supreme 

Court. The Supreme Court cases 

adopting and applying the categorical 

approach have involved statutory 

provisions (e.g., 18 U.S.C. § 924(e)) 

rather than guidelines. However, courts 

have applied the categorical approach to 

guideline provisions, even though the 

guidelines do not expressly require such 

an analysis. Specifically, courts have 

used the categorical approach to 

determine if a conviction is a ‘‘crime of 

violence’’ or a ‘‘controlled substance 

offense’’ for purposes of applying the 

career offender guideline at § 4B1.1 

(Career Offender). This form of analysis 

limits the range of information a 

sentencing court may consider in 

making such determination to the 

statute under which the defendant 

sustained the conviction (and, in certain 

cases, judicial documents surrounding 

that conviction). 

In Taylor v. United States, 495 U.S. 

575 (1990), the Supreme Court held that 

to determine whether a prior conviction 

qualifies as an enumerated ‘‘violent 

felony’’ under the Armed Career 

Criminal Act (ACCA), courts must use 

‘‘a formal categorical approach, looking 

only to the statutory definitions of the 

prior offenses, and not to the particular 

facts underlying those convictions.’’ 

Taylor, 495 U.S. at 600. If the statutory 

definition of the prior offense 

corresponds in substance to the generic 

version of the enumerated offense, or is 

narrower than that generic offense, the 

prior conviction can serve as a predicate 

offense. Id. at 599. If the statutory 

definition of the prior offense is broader 

than the generic offense, the prior 

conviction generally cannot count as a 

predicate offense. Id. In making such a 

determination, a sentencing court 

generally may ‘‘look only to the fact of 

conviction and the statutory definition 

of the prior offense.’’ Id. at 602. 

However, this approach ‘‘may permit 

the sentencing court to go beyond the 

mere fact of conviction in a narrow 

range of cases where a jury was actually 

required to find all the elements’’ of the 

generic offense. Id. Thus, a prior 

conviction fits within the particular 

category of crimes ‘‘if either its statutory 

definition substantially corresponds to 

[the generic definition of the crime], or 

the charging paper and jury instructions 

actually required the jury to find all the 

elements of [the generic crime] in order 

to convict the defendant.’’ Id. 

In Shepard v. United States, 544 U.S. 

13 (2005), the Supreme Court reaffirmed 

the use of this modified version of the 

categorical approach in the ‘‘narrow 

range of cases’’ recognized in Taylor in 

which the statute of conviction defines 

an offense that is broader than the 

elements of the generic offense. 

Shepard, 544 U.S. at 17–18. In such a 

case, the Court held, the sentencing 

court may look to a limited list of 

documents to determine the class of 

offense. In cases resolved by a guilty 

plea, such as in Shepard, the court may 

look to ‘‘the terms of the charging 

document, the terms of the plea 

agreement or transcript of colloquy 

between judge and defendant in which 

the factual basis for the plea was 

confirmed by the defendant, or to some 

comparable judicial record of this 

information.’’ Id. at 26. This analysis is 

called the ‘‘modified categorical 

approach.’’ Under this approach, the 

court may consider only those sources 

of information approved by Taylor and 

Shepard—the charging document, the 

jury instructions or judge’s formal 

rulings of law and findings of fact, any 

plea agreement or plea statement, or 

‘‘some comparable judicial record of 

this information.’’ 

More recent cases make clear that a 

court may use the modified categorical 

approach described in Shepard only 

when the statute that the defendant was 

convicted of violating is ‘‘divisible.’’ 

The Supreme Court held in Descamps v. 

United States, 570 U.S. 254 (2013), that 

a statute is ‘‘divisible’’ only when it 

contains multiple crimes defined by 

multiple alternative elements. If the 

statute is not divisible (i.e., it describes 

a single crime defined by a single set of 

elements, even if it may also list 

alternative means of satisfying one or 

more elements), then the modified 

categorical approach is not permitted. 

When a statute is divisible, and the 

modified categorical approach is 

applied, only the documents approved 

in Taylor and Shepard may be used to 

determine which of the alternative 

specified ways of committing the 

offense formed the basis of conviction. 

The modified categorical approach acts 

in such cases not as an exception to the 

categorical approach, but as a tool of 

that approach, while retaining its 

central feature: ‘‘a focus on the 

elements, rather than the facts of a 

crime.’’ Id. at 263. Consequently, courts 

cannot use the documents to investigate 

the underlying conduct of the prior 

offense. 

In Mathis v. United States, 136 S. Ct. 

2243 (2016), the Supreme Court 

elaborated further on the elementsmeans distinction, holding that a 

sentencing court may look only to the 

elements of the statute of conviction, 

even if the statute specifies alternative 

ways of committing the offense. The 

Court instructed that the first task for 

sentencing courts faced with 

alternatively phrased statutes is to 

‘‘determine whether its listed items are 

elements or means.’’ Id. at 2256. If the 

listed items are elements of the offense, 

the modified categorical approach is 

available for courts to determine under 

what section of the statute the defendant 

was convicted. However, if the listed 

items are means of satisfying one of the 

offense elements, the court cannot apply 

the modified categorical approach to 

determine which of the statutory 

alternatives was at issue in prosecuting 

the prior conviction. Id. 

The Commission has received 

significant comment over the years 

regarding the categorical approach, most 

of which has been negative. Courts and 

stakeholders have criticized the 

categorical approach as being an overly 

complex, time consuming, resourceintensive analysis that often leads to 

litigation and uncertainty. Commenters 

have also indicated that the categorical 

approach creates serious and unjust 

inconsistencies that make the guidelines 

more cumbersome, complex, and less 

effective at addressing dangerous repeat 

offenders. As a result, commenters 

argue, some federal and state offenses 

that would otherwise qualify as a 

‘‘crime of violence’’ or a ‘‘controlled 

substance offense’’ no longer qualify as 

such in several federal circuits. 

Part A of the proposed amendment 

would amend § 4B1.2 (Definitions of 

Terms Used in Section 4B1.1) to provide 

that the categorical approach and 

modified categorical approach do not 

apply in determining whether a 

conviction is a ‘‘crime of violence’’ or a 

‘‘controlled substance offense.’’ 

Specifically, Part A would provide that, 

in making that determination, a court 

shall consider any element or 

alternative means for meeting an 

element of the offense committed by the 

defendant, as well as the conduct that 

formed the basis of the offense of 

conviction. 

In addition, Part A would allow 

courts to look at a wider range of 

sources from the judicial record, beyond 

the statute of conviction, in determining 

the conduct that formed the basis of the 

offense of conviction. Specifically, it 

would permit courts to look to the types 

of sources identified in Taylor and 

Shepard: (1) the charging document; (2) 


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the jury instructions, in a case tried to 

a jury; the judge’s formal rulings of law 

or findings of fact, in a case tried to a 

judge alone; or, in a case resolved by a 

guilty plea, the plea agreement or 

transcript of colloquy between judge 

and defendant in which the factual basis 

of the plea was confirmed by the 

defendant; (3) any explicit factual 

finding by the trial judge to which the 

defendant assented; and (4) any 

comparable judicial record of the 

information described above. 

Part A of the proposed amendment 

would also make corresponding changes 

to the Commentary to § 2L1.2 

(Unlawfully Entering or Remaining in 

the United States), which contains 

definitions for the terms ‘‘crime of 

violence’’ and ‘‘drug trafficking offense’’ 

that closely track the definitions of 

‘‘crime of violence’’ and ‘‘controlled 

substance offense,’’ respectively, in 

§ 4B1.2. It would add a new application 

note that mirrors the new provisions 

proposed for § 4B1.2. 

Finally, Part A of the proposed 

amendment makes conforming changes 

to the guidelines that use the terms 

‘‘crime of violence’’ and ‘‘controlled 

substance offense’’ and define these 

terms by making specific reference to 

§ 4B1.2. Accordingly, the proposed 

amendment would amend the 

commentaries to §§ 2K1.3 (Unlawful 

Receipt, Possession, or Transportation 

of Explosive Materials; Prohibited 

Transactions Involving Explosive 

Materials), 2K2.1 (Unlawful Receipt, 

Possession, or Transportation of 

Firearms or Ammunition; Prohibited 

Transactions Involving Firearms and 

Ammunitions), 2S1.1 (Laundering of 

Monetary Instruments; Engaging in 

Monetary Transactions in Property 

Derived from Unlawful Activity), 4A1.2 

(Definitions and Instructions for 

Computing Criminal History), 4B1.4 

(Armed Career Criminal), and 7B1.1 

(Classification of Violations (Policy 

Statement)). 

Issues for comment are also provided. 

Proposed Amendment: 

Section 4B1.2 is amended— 

in subsection (a)(1) by striking ‘‘has as 

an element’’ and inserting ‘‘has an 

element or alternative means for 

meeting an element’’; 

in subsection (a)(2) by striking ‘‘is 

murder,’’ and inserting ‘‘constituted 

murder,’’; 

and in subsection (b) by striking ‘‘that 

prohibits’’ and inserting ‘‘that has as an 

element or alternative means for 

meeting an element’’. 

The Commentary to § 4B1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 2 by striking the following: 

‘‘Offense of Conviction as Focus of 

Inquiry.—Section 4B1.1 (Career 

Offender) expressly provides that the 

instant and prior offenses must be 

crimes of violence or controlled 

substance offenses of which the 

defendant was convicted. Therefore, in 

determining whether an offense is a 

crime of violence or controlled 

substance for the purposes of § 4B1.1 

(Career Offender), the offense of 

conviction (i.e., the conduct of which 

the defendant was convicted) is the 

focus of inquiry.’’, 

and inserting the following: 

‘‘Procedure for Determining Whether 

an Offense is a ‘Crime of Violence’ or a 

‘Controlled Substance Offense’.—The 

‘categorical approach’ and ‘modified 

categorical approach’ adopted by the 

Supreme Court in the context of certain 

statutory provisions (e.g., 18 U.S.C. 

§ 924(e)) do not apply in the 

determination of whether a conviction 

is a ‘crime of violence’ or a ‘controlled 

substance offense,’ as set forth below. 

See Background Commentary. 

(A) Conduct-Based Inquiry.—Section 

4B1.1 (Career Offender) expressly 

provides that the instant and prior 

offenses must be crimes of violence or 

controlled substance offenses of which 

the defendant was convicted. In 

determining whether the defendant was 

convicted of a ‘crime of violence’ or a 

‘controlled substance offense,’ the court 

shall consider the conduct that formed 

the basis of the conviction, i.e., only the 

conduct that met one or more elements 

of the offense of conviction or that was 

an alternative means of meeting any 

such element. 

(B) Sources to be Considered.—In 

determining the conduct that formed the 

basis of the conviction, the court shall 

look only to the statute of conviction 

and the following sources— 

(i) The charging document. 

(ii) The jury instructions, in a case 

tried to a jury; the judge’s formal rulings 

of law or findings of fact, in a case tried 

to a judge alone; or, in a case resolved 

by a guilty plea, the plea agreement or 

transcript of colloquy between judge 

and defendant in which the factual basis 

of the guilty plea was confirmed by the 

defendant. 

(iii) Any explicit factual finding by 

the trial judge to which the defendant 

assented. 

(iv) Any comparable judicial record of 

the information described in 

subparagraphs (i) through (iii). 

(C) Definitions of Enumerated 

Offenses.—In determining whether the 

conduct that formed the basis of the 

conviction constitutes one of the 

enumerated offenses in subsection 

(a)(2), use the definition of the 

enumerated offense provided in 

Application Note 1. If no definition is 

provided, use the contemporary, generic 

definition of the enumerated offense.’’. 

The Commentary to § 4B1.2 is 

amended by adding at the end the 

following: 

‘‘Background: Section 4B1.2 provides 

the definitions for the terms ‘crime of 

violence,’ ‘controlled substance offense,’ 

and ‘two prior felony convictions’ used 

in § 4B1.1 (Career Offender). To 

determine if a conviction meets the 

definitions of ‘crime of violence’ and 

‘controlled substance offense’ in 

§ 4B1.2, courts have typically used the 

categorical approach and the modified 

categorical approach, as set forth in 

Supreme Court jurisprudence. See, e.g., 

Taylor v. United States, 495 U.S. 575 

(1990); Shepard v. United States, 544 

U.S. 13 (2005); Descamps v. United 

States, 570 U.S. 254 (2013); Mathis v. 

United States, 136 S. Ct. 2243 (2016). 

These Supreme Court cases, however, 

involved statutory provisions (e.g., 18 

U.S.C. § 924(e)) rather than guideline 

provisions. Even though courts have 

applied the categorical approach and 

the modified categorical approach to 

guideline provisions, neither 28 U.S.C. 

§ 994(h) nor the guidelines require such 

a limited analysis for determining 

whether an offense is a ‘crime of 

violence’ or a ‘controlled substance 

offense’ for purposes of § 4B1.1. Section 

4B1.2 and Application Note 2 make 

clear that the categorical approach and 

modified categorical approach do not 

apply when a court determines whether 

a defendant’s conviction qualifies as a 

‘crime of violence’ or a ‘controlled 

substance offense’ under the career 

offender guideline. In addition, the 

court is permitted to consider a wider 

range of sources from the judicial record 

in determining whether a prior 

conviction qualifies as a ‘crime of 

violence’ or a ‘controlled substance 

offense.’’’. 

The Commentary to § 2L1.2 captioned 

‘‘Application Notes’’ is amended— 

in Note 2— 

in the paragraph that begins ‘‘‘Crime 

of violence’ means’’ by striking ‘‘any of 

the following offenses under federal, 

state, or local law:’’ and inserting ‘‘an 

offense under federal, state, or local law 

that constituted’’, and by striking ‘‘, or 

any other offense under federal, state, or 

local law that has as an element’’ and 

inserting ‘‘; or any other offense under 

federal, state, or local law that has as an 

element or alternative means for 

meeting an element’’; 

and in the paragraph that begins 

‘‘‘Drug trafficking offense’ means’’ by 

striking ‘‘an offense under federal, state, 

or local law that prohibits’’ and 


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inserting ‘‘an offense under federal, 

state, or local law that has as an element 

or alternative means for meeting an 

element’’; 

by redesignating Notes 6, 7, and 8 as 

Notes 7, 8, and 9, respectively; 

and by inserting the following new 

Note 6: 

‘‘6. Procedure for Determining 

Whether a Prior Conviction is a ‘Crime 

of Violence’ or a ‘Drug Trafficking 

Offense’.—The ‘categorical approach’ 

and ‘modified categorical approach’ 

adopted by the Supreme Court in the 

context of certain statutory provisions 

(e.g., 18 U.S.C. § 924(e)) do not apply in 

the determination of whether a 

conviction is a ‘crime of violence’ or a 

‘drug trafficking offense,’ as set forth 

below. See Background Commentary to 

§ 4B1.2 (Definitions of Terms Used in 

Section 4B1.1). 

(A) Conduct-Based Inquiry.—In 

determining whether the defendant was 

convicted of a ‘crime of violence’ or a 

‘drug trafficking offense’ for the 

purposes of subsections (b)(2)(E) and 

(b)(3)(E), the court shall take into 

account the conduct that formed the 

basis of the conviction, i.e., only the 

conduct that met one or more elements 

of the offense of conviction or that was 

an alternative means of meeting any 

such element. 

(B) Sources to be Considered.—In 

determining the conduct that formed the 

basis of the conviction, the court shall 

look only to the statute of conviction 

and the following sources— 

(i) The charging document. 

(ii) The jury instructions, in a case 

tried to a jury; the judge’s formal rulings 

of law or findings of fact, in a case tried 

to a judge alone; or, in a case resolved 

by a guilty plea, the plea agreement or 

transcript of colloquy between judge 

and defendant in which the factual basis 

of the guilty plea was confirmed by the 

defendant. 

(iii) Any explicit factual finding by 

the trial judge to which the defendant 

assented. 

(iv) Any comparable judicial record of 

the information described in 

subparagraphs (i) through (iii). 

(C) Definitions of Enumerated 

Offenses.—In determining whether the 

conduct that formed the basis of the 

conviction constituted one of the 

enumerated offenses in the definition of 

‘crime of violence,’ use the definition of 

the enumerated offense provided. If no 

definition is provided, use the 

contemporary, generic definition of the 

enumerated offense.’’. 

The Commentary to § 2K1.3 captioned 

‘‘Application Notes’’ is amended in 

Note 2— 

in the paragraph that begins 

‘‘ ‘Controlled substance offense’ has the 

meaning’’ by striking ‘‘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)’’ and inserting ‘‘means a 

‘controlled substance offense’ as defined 

and determined in accordance with 

§ 4B1.2 (Definitions of Terms Used in 

Section 4B1.1)’’; 

and in the paragraph that begins 

‘‘ ‘crime of violence’ has the meaning’’ 

by striking ‘‘has the meaning given that 

term in § 4B1.2(a) and Application Note 

1 of the Commentary to § 4B1.2’’ and 

inserting ‘‘means a ‘crime of violence’ as 

defined and determined in accordance 

with § 4B1.2 (Definitions of Terms Used 

in Section 4B1.1)’’. 

The Commentary to § 2K2.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 1— 

in the paragraph that begins 

‘‘ ‘Controlled substance offense’ has the 

meaning’’ by striking ‘‘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)’’ and inserting ‘‘means a 

‘controlled substance offense’ as defined 

and determined in accordance with 

§ 4B1.2 (Definitions of Terms Used in 

Section 4B1.1)’’; 

and in the paragraph that begins 

‘‘ ‘Crime of violence’ has the meaning’’ 

by striking ‘‘has the meaning given that 

term in § 4B1.2(a) and Application Note 

1 of the Commentary to § 4B1.2’’ and 

inserting ‘‘means a ‘crime of violence’ as 

defined and determined in accordance 

with § 4B1.2 (Definitions of Terms Used 

in Section 4B1.1)’’; 

and in Note 13(B) by striking ‘‘have 

the meaning given those terms in 

§ 4B1.2 (Definitions of Terms Used in 

Section 4B1.1)’’ and inserting ‘‘mean a 

‘crime of violence’ and a ‘controlled 

substance offense’ as defined and 

determined in accordance with § 4B1.2 

(Definitions of Terms Used in Section 

4B1.1)’’. 

The Commentary to § 2S1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 1, in the paragraph that begins 

‘‘ ‘Crime of violence’ has the meaning’’, 

by striking ‘‘has the meaning given that 

term in subsection (a)(1) of § 4B1.2 

(Definitions of Terms Used in Section 

4B1.1)’’ and inserting ‘‘means a ‘crime 

of violence’ as defined in subsection 

(a)(1) of § 4B1.2 (Definitions of Terms 

Used in Section 4B1.1), regardless of 

whether such offense resulted in a 

conviction’’. 

The Commentary to § 4A1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 5 by striking ‘‘has the meaning 

given that term in § 4B1.2(a)’’ and 

inserting ‘‘means a ‘crime of violence’ as 

defined and determined in accordance 

with § 4B1.2 (Definitions of Terms Used 

in Section 4B1.1)’’. 

Section 4A1.2(p) is amended by 

striking ‘‘the definition of ‘crime of 

violence’ is that set forth in § 4B1.2(a)’’ 

and inserting ‘‘‘crime of violence’ means 

a ‘crime of violence’ as defined and 

determined in accordance with § 4B1.2 

(Definitions of Terms Used in Section 

4B1.1)’’. 

Section 4B1.4 is amended— 

in subsection (b)(3)(A) by striking ‘‘in 

connection with either a crime of 

violence, as defined in § 4B1.2(a), or a 

controlled substance offense, as defined 

in § 4B1.2(b)’’ and inserting ‘‘in 

connection with either a crime of 

violence, as defined in § 4B1.2(a) 

(regardless of whether such offense 

resulted in a conviction), or a controlled 

substance offense, as defined in 

§ 4B1.2(b) (regardless of whether such 

offense resulted in a conviction)’’; 

and in subsection (c)(2) by striking 

‘‘in connection with either a crime of 

violence, as defined in § 4B1.2(a), or a 

controlled substance offense, as defined 

in § 4B1.2(b)’’ and inserting ‘‘in 

connection with either a crime of 

violence, as defined in § 4B1.2(a) 

(regardless of whether such offense 

resulted in a conviction), or a controlled 

substance offense, as defined in 

§ 4B1.2(b) (regardless of whether such 

offense resulted in a conviction)’’. 

The Commentary to § 5K2.17 

captioned ‘‘Application Notes’’ is 

amended in Note 1 by striking ‘‘are 

defined in § 4B1.2 (Definitions of Terms 

Used in Section 4B1.1)’’ and inserting 

‘‘mean a ‘crime of violence’ and a 

‘controlled substance offense’ as defined 

in subsections (a) and (b) of § 4B1.2 

(Definitions of Terms Used in Section 

4B1.1), regardless of whether such 

offense resulted in a conviction’’. 

The Commentary to § 7B1.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 2 by striking ‘‘is defined in 

§ 4B1.2 (Definitions of Terms Used in 

Section 4B1.1). See § 4B1.2(a) and 

Application Note 1 of the Commentary 

to § 4B1.2’’ and inserting ‘‘means a 

‘crime of violence’ as defined in 

subsection (a) of § 4B1.2 (Definitions of 

Terms Used in Section 4B1.1), 

regardless of whether such conduct 

resulted in a conviction’’; 

and in Note 3 by striking ‘‘is defined 

in § 4B1.2 (Definitions of Terms Used in 

Section 4B1.1). See § 4B1.2(b) and 

Application Note 1 of the Commentary 

to § 4B1.2’’ and inserting ‘‘means a 

‘controlled substance offense’ as defined 

in subsection (b) of § 4B1.2 (Definitions 

of Terms Used in Section 4B1.1), 


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regardless of whether such conduct 

resulted in a conviction’’. 

Issues for Comment: 

1. Part A of the proposed amendment 

would amend § 4B1.2 (Definitions of 

Terms Used in Section 4B1.1) to provide 

that the ‘‘categorical approach’’ and 

‘‘modified categorical approach,’’ as set 

forth in Supreme Court jurisprudence 

for certain statutory provisions, do not 

apply in determining whether a 

conviction is a ‘‘crime of violence’’ or a 

‘‘controlled substance offense’’ for 

purposes of the guidelines. As indicated 

above, courts have applied the 

categorical approach and the modified 

categorical approach to guideline 

provisions, even though the guidelines 

do not expressly require such an 

analysis. The Commission invites 

comment on whether Part A of the 

proposed amendment is consistent with 

the Commission’s authority under 28 

U.S.C. § 994(a)–(f), (h). 

2. Part A of the proposed amendment 

would allow courts to look to the 

documents expressly approved in 

Taylor v. United States, 495 U.S. 575 

(1990), and Shepard v. United States, 

544 U.S. 13 (2005), in determining the 

conduct that formed the basis of the 

offense of conviction. 

The Commission seeks comment on 

whether additional or different guidance 

should be provided. If so, what 

additional or different guidance should 

the Commission provide? For example, 

should the Commission provide a 

specific set of factors to assess the 

reliability of a source of information, 

such as whether the document came out 

of the adversarial process, was accepted 

by both parties, or was made by an 

impartial third party? If so, what factors 

should the Commission provide? 

Should the Commission list specific 

sources or types of sources that courts 

may consider, in addition to the sources 

expressly approved in Taylor and 

Shepard (i.e., the Shepard documents)? 

If so, what documents or types of 

information should be included in this 

list? Are there any documents or types 

of information that should be expressly 

excluded? If so, what documents or 

types of information should be 

excluded? Should the Commission 

broaden the range of sources courts may 

look at, in addition to the Shepard 

documents, by providing that courts 

may also consider any uncontradicted, 

internally consistent parts of the judicial 

record from the prior conviction? 

3. Currently, § 4B1.2 provides 

definitions for only two of the 

enumerated offenses contained in the 

‘‘crime of violence’’ definition (i.e., 

‘‘forcible sex offense’’ and ‘‘extortion’’). 

For the other enumerated offenses, the 

proposed amendment provides that 

courts should use the contemporary, 

generic definition of the enumerated 

offense. Should the Commission instead 

set forth specific definitions for all 

enumerated offenses covered by the 

guideline? If so, what definitions would 

be appropriate for purposes of the career 

offender guideline? For example, should 

the Commission provide definitions 

derived from broad contemporary, 

generic definitions of the enumerated 

offenses? What offenses should be 

covered by any potential definition of 

the enumerated offenses? What offenses 

should be excluded from any potential 

definition? 

(B) Meaning of ‘‘Robbery’’ 

Synopsis of Proposed Amendment: In 

2016, the Commission amended § 4B1.2 

(Definitions of Terms Used in Section 

4B1.1) to, among other things, delete the 

‘‘residual clause’’ and revise the 

‘‘enumerated offenses clause’’ by 

moving enumerated offenses that were 

previously listed in the commentary to 

the guideline itself. See USSG, App. C, 

Amendment 798 (effective Aug. 1, 

2016). The ‘‘enumerated offenses 

clause’’ identifies specific offenses that 

qualify as crimes of violence. Although 

the guideline relies on existing case law 

for purposes of defining most 

enumerated offenses, the amendment 

added to the Commentary to § 4B1.2 

definitions for two of the enumerated 

offenses: ‘‘forcible sex offense’’ and 

‘‘extortion.’’ 

‘‘Extortion’’ is defined as ‘‘obtaining 

something of value from another by the 

wrongful use of (A) force, (B) fear of 

physical injury, or (C) threat of physical 

injury.’’ Under case law existing at the 

time of the amendment, courts generally 

defined extortion as ‘‘obtaining 

something of value from another with 

his consent induced by the wrongful use 

of force, fear, or threats,’’ based on the 

Supreme Court’s holding in United 

States v. Nardello, 393 U.S. 286, 290 

(1969) (defining ‘‘extortion’’ for 

purposes of 18 U.S.C. § 1952). However, 

consistent with the Commission’s goal 

of focusing the career offender and 

related enhancements on the most 

dangerous offenders, the amendment 

narrowed the generic definition of 

extortion by limiting it to offenses 

having an element of force or an 

element of fear or threats ‘‘of physical 

injury,’’ as opposed to non-violent 

threats such as injury to reputation. 

In its annual letter to the Commission, 

the Department of Justice expressed 

concern that courts have held that 

certain robbery offenses, such as Hobbs 

Act robbery, no longer constitute a 

‘‘crime of violence’’ under the guideline 

as amended in 2016 because the statute 

of conviction does not fit either the 

generic definition of ‘‘robbery’’ or the 

new guideline definition of ‘‘extortion.’’ 

See Annual Letter from the Department 

of Justice to the Commission (Aug. 10, 

2018), at https://www.ussc.gov/sites/ 

default/files/pdf/amendment-process/ 

public-comment/20180810/DOJ.pdf. 

The Hobbs Act defines the term 

‘‘robbery’’ as ‘‘the unlawful taking or 

obtaining of personal property from the 

person or in the presence of another, 

against his will, by means of actual or 

threatened force, or violence, or fear of 

injury, immediate or future, to his 

person or property . . . . ’’ 18 U.S.C. 

§ 1951(b)(1) (emphasis added). At least 

two circuits—the Ninth and Tenth 

Circuits—have found ambiguity as to 

whether the guideline definition of 

extortion includes injury to property, 

and (under the rule of lenity) both 

circuits have interpreted the new 

definition as excluding prior 

convictions where the statute 

encompasses injury to property 

offenses, such as Hobbs Act robbery. 

See, e.g., United States v. O’Connor, 874 

F.3d 1147 (10th Cir. 2017) (Hobbs Act 

robbery); United States v. Edling, 895 

F.3d 1153 (9th Cir. 2018) (Nevada 

robbery). 

Part B of the proposed amendment 

would amend § 4B1.2 to address this 

issue. Three options are provided. 

Option 1 would amend the 

enumerated offenses clause at 

§ 4B1.2(a)(2) to add a parenthetical 

annotation that robbery, as listed, is 

‘‘robbery (as described in 18 U.S.C. 

§ 1951(b)(1)).’’ Section 1951(b)(1) 

provides the Hobbs Act definition of 

‘‘robbery.’’ 

Option 2 would amend the 

Commentary to § 4B1.2 to add a 

definition of ‘‘robbery’’ for purposes of 

the career offender guideline. The 

definition would mirror the ‘‘robbery’’ 

definition at 18 U.S.C. § 1951(b)(1). 

Specifically, it would provide that 

‘‘robbery’’ is ‘‘the unlawful taking or 

obtaining of personal property from the 

person or in the presence of another, 

against his will, by means of actual or 

threatened force, or violence, or fear of 

injury, immediate or future, to his 

person or property, or property in his 

custody or possession, or the person or 

property of a relative or member of his 

family or of anyone in his company at 

the time of the taking or obtaining.’’ 

Option 2 also brackets a provision 

defining the phrase ‘‘actual or 

threatened force,’’ for purposes of the 

‘‘robbery’’ definition, as ‘‘minimal force 

that is sufficient to compel a person to 

part with personal property.’’ 


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Option 3, similar to Option 2, would 

amend the Commentary to § 4B1.2 to 

add a definition of ‘‘robbery’’ that 

mirrors the ‘‘robbery’’ definition at 18 

U.S.C. § 1951(b)(1). However, Option 3 

brackets a different alternative for 

defining the phrase ‘‘actual or 

threatened force.’’ It would provide that 

such phrase refers to ‘‘force that is 

sufficient to overcome a person’s 

physical resistance or physical power of 

resistance.’’ 

In addition, Part B of the proposed 

amendment includes conforming 

changes to the definition of ‘‘crime of 

violence’’ in the Commentary to § 2L1.2 

(Unlawfully Entering or Remaining in 

the United States). The changes are 

presented in accordance with the 

options described above. 

Issues for comment are also provided. 

Proposed Amendment: 

[Option 1: 

Section 4B1.2(a)(2) is amended by 

striking ‘‘robbery’’ and inserting 

‘‘robbery (as described in 18 U.S.C. 

§ 1951(b)(1))’’.] 

[Option 2: 

The Commentary to § 4B1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by inserting after the paragraph 

that begins ‘‘ ‘Forcible sex offense’ 

includes’’ the following new paragraph: 

‘‘ ‘Robbery’ is the unlawful taking or 

obtaining of personal property from the 

person or in the presence of another, 

against his will, by means of actual or 

threatened force, or violence, or fear of 

injury, immediate or future, to his 

person or property, or property in his 

custody or possession, or the person or 

property of a relative or member of his 

family or of anyone in his company at 

the time of the taking or obtaining. [The 

phrase ‘‘actual or threatened force’’ 

refers to minimal force that is sufficient 

to compel a person to part with personal 

property.]’’.] 

[Option 3: 

The Commentary to § 4B1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by inserting after the paragraph 

that begins ‘‘ ‘Forcible sex offense’ 

includes’’ the following new paragraph: 

‘‘ ‘Robbery’ is the unlawful taking or 

obtaining of personal property from the 

person or in the presence of another, 

against his will, by means of actual or 

threatened force, or violence, or fear of 

injury, immediate or future, to his 

person or property, or property in his 

custody or possession, or the person or 

property of a relative or member of his 

family or of anyone in his company at 

the time of the taking or obtaining. [The 

phrase ‘‘actual or threatened force’’ 

refers to force that is sufficient to 

overcome a person’s physical resistance 

or physical power of resistance.]’’.] 

The Commentary to § 2L1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 2, in the paragraph that begins 

‘‘‘Crime of violence’ means’’— 

[Option 1: 

by striking ‘‘robbery’’ and inserting 

‘‘robbery (as described in 18 U.S.C. 

§ 1951(b)(1))’’.] 

[Option 2: 

by inserting after ‘‘territorial 

jurisdiction of the United States.’’ the 

following: ‘‘ ‘Robbery’ is the unlawful 

taking or obtaining of personal property 

from the person or in the presence of 

another, against his will, by means of 

actual or threatened force, or violence, 

or fear of injury, immediate or future, to 

his person or property, or property in 

his custody or possession, or the person 

or property of a relative or member of 

his family or of anyone in his company 

at the time of the taking or obtaining. 

[The phrase ‘‘actual or threatened force’’ 

refers to minimal force that is sufficient 

to compel a person to part with personal 

property.]’’.] 

[Option 3: 

by inserting after ‘‘territorial 

jurisdiction of the United States.’’ the 

following: ‘‘ ‘Robbery’ is the unlawful 

taking or obtaining of personal property 

from the person or in the presence of 

another, against his will, by means of 

actual or threatened force, or violence, 

or fear of injury, immediate or future, to 

his person or property, or property in 

his custody or possession, or the person 

or property of a relative or member of 

his family or of anyone in his company 

at the time of the taking or obtaining. 

[The phrase ‘‘actual or threatened force’’ 

refers to force that is sufficient to 

overcome a person’s physical resistance 

or physical power of resistance.]’’.] 

Issues for Comment: 

1. Options 1, 2, and 3 in Part B of the 

proposed amendment would have 

‘‘robbery,’’ as listed in subsection (a)(2) 

of § 4B1.2 (Definitions of Terms Used in 

Section 4B1.1) and § 2L1.2 (Unlawfully 

Entering or Remaining in the United 

States), either reference or mirror the 

Hobbs Act definition of ‘‘robbery’’ at 18 

U.S.C. § 1951(b)(1). The Commission 

seeks comment generally on whether 

the proposed definition of ‘‘robbery’’ is 

appropriate. Are there robbery offenses 

that are covered by the proposed 

definition but should not be? Are there 

robbery offenses that are not covered by 

the proposed definition but should be? 

2. The Hobbs Act definition of 

‘‘robbery’’ at 18 U.S.C. § 1951(b)(1) 

includes the phrase ‘‘actual or threated 

force’’ as part of the elements of the 

offense. The Commission seeks 

comment on how the phrase ‘‘actual or 

threatened force’’ has been defined by 

case law for purposes of the Hobbs Act 

definition of ‘‘robbery’’ at 18 U.S.C. 

§ 1951(b)(1). What level of force have 

courts determined is required for 

purposes of Hobbs Act robbery cases? 

Have courts interpreted the level of 

force required in such cases to be 

‘‘violent force,’’ as defined in Johnson v. 

United States, 559 U.S. 133, 140 (2010)? 

Have courts determined that Hobbs Act 

robbery could encompass conduct that 

falls below the level of ‘‘violent force’’? 

If so, what level of force have courts 

specified? 

Options 2 and 3 of the proposed 

amendment bracket two alternatives for 

defining the phrase ‘‘actual or 

threatened force,’’ for purposes of the 

proposed ‘‘robbery’’ definition. Option 2 

would provide that the phrase ‘‘actual 

or threatened force’’ refers to ‘‘minimal 

force that is sufficient to compel a 

person to part with personal property.’’ 

Option 3 would provide that such 

phrase refers to ‘‘force that is sufficient 

to overcome a person’s physical 

resistance or physical power of 

resistance.’’ The Commission seeks 

comment on whether either of these two 

alternatives is appropriate for purposes 

of the proposed ‘‘robbery’’ definition. 

Are there robbery offenses that would be 

covered by defining ‘‘actual or 

threatened force’’ in any such way but 

should not be? Are there robbery 

offenses that would not be covered but 

should be? If none of the bracketed 

alternatives is appropriate for purposes 

of the proposed ‘‘robbery’’ definition, 

how should the Commission define the 

phrase ‘‘actual or threatened force’’? 

What level of force should the 

Commission specify as part of the 

proposed ‘‘robbery’’ definition? 

(C) Inchoate Offenses 

Synopsis of Proposed Amendment: 

The career offender guideline includes 

convictions for inchoate offenses and 

offenses arising from accomplice 

liability, such as aiding and abetting, 

conspiring to commit, and attempting to 

commit a ‘‘crime of violence’’ and a 

‘‘controlled substance offense.’’ See 

USSG § 4B1.2, comment. (n.1). In the 

original 1987 Guidelines Manual, these 

offenses were included only in the 

definition of ‘‘controlled substance 

offense.’’ See USSG § 4B1.2, comment. 

(n.2) (effective Nov. 1, 1987). In 1989, 

the Commission amended the guideline 

to provide that both definitions—‘‘crime 

of violence’’ and ‘‘controlled substance 

offense’’—include the offenses of aiding 

and abetting, conspiracy, and attempt to 

commit such crimes. See USSG App. C, 

Amendment 268 (effective Nov. 1, 

1989). 

In its annual letter to the Commission, 

the Department of Justice has suggested 


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that application issues have arisen 

regarding whether certain conspiracy 

offenses qualify under the career 

offender guideline as a ‘‘crime of 

violence’’ or a ‘‘controlled substance 

offense.’’ See Annual Letter from the 

Department of Justice to the 

Commission (Aug. 10, 2018), at https:// 

www.ussc.gov/sites/default/files/pdf/ 

amendment-process/public-comment/ 

20180810/DOJ.pdf. In making this 

determination, some courts have 

employed a two-step analysis, first 

comparing the substantive offense to its 

generic definition, and then separately 

comparing the inchoate offense 

involving that substantive offense to the 

generic definition of the specific 

inchoate offense. In comparing 

conspiracy to commit an offense to the 

generic definition of ‘‘conspiracy,’’ some 

courts have concluded that because the 

generic definition of conspiracy requires 

an overt act, federal and state 

conspiracy statutes that do not require 

an overt act categorically do not qualify 

as a ‘‘crime of violence’’ or a ‘‘controlled 

substance offense.’’ See, e.g., United 

States v. McCollum, 885 F.3d 300, 303 

(4th Cir. 2018). 

In addition, another issue has been 

brought to the Commission’s attention. 

Case law has long held that 

‘‘commentary in the Guidelines Manual 

that interprets or explains a guideline is 

authoritative unless it violates the 

Constitution or a federal statute, or is 

inconsistent with, or a plainly erroneous 

reading of, that guideline.’’ Stinson v. 

United States, 508 U.S. 36, 38 (1993); 

see also USSG § 1B1.7. Most circuits 

have held that the definitions of ‘‘crime 

of violence’’ and ‘‘controlled substance 

offense’’ at § 4B1.2 include the offenses 

of aiding and abetting, conspiracy to 

commit, and attempt to commit such 

crimes, in accordance with the 

commentary to the guideline. See, e.g., 

United States v. Nieves-Borrero, 856 

F.3d 5 (1st Cir. 2017); United States v. 

Jackson, 60 F.3d 128 (2d Cir. 1995); 

United States v. Dozier, 848 F.3d 180 

(4th Cir. 2017); United States v. Guerra, 

962 F.2d 484 (5th Cir. 1992); United 

States v. Evans, 699 F.3d 858 (6th Cir. 

2012); United States v. Tate, 822 F.3d 

370 (7th Cir. 2016); United States v. 

Mendoza-Figueroa, 65 F.3d 691 (8th Cir. 

1995); United States v. Sarbia, 367 F.3d 

1079 (9th Cir. 2004); United States v. 

McKibbon, 878 F.3d 967 (10th Cir. 

2017); United States v. Lange, 862 F.3d 

1290 (11th Cir. 2017). However, a recent 

decision from the D.C. Circuit 

concluded otherwise for purposes of the 

‘‘controlled substance offense’’ 

definition. See United States v. 

Winstead, 890 F.3d 1082, 1091 (D.C. Cir. 

May 25, 2018) (‘‘Section 4B1.2(b) 

presents a very detailed ‘definition’ of 

controlled substance offense that clearly 

excludes inchoate offenses.’’). 

Part C of the proposed amendment 

would address these issues by amending 

§ 4B1.2 (Definitions of Terms Used in 

Section 4B1.1) and its commentary. As 

indicated above, the commentary that 

accompanies the guidelines is 

authoritative and failure to follow the 

commentary would constitute an 

incorrect application of the guidelines, 

subjecting the sentence imposed to 

possible reversal on appeal. See 18 

U.S.C. § 3742. However, the 

Commission proposes to move the 

inchoate offenses provision from the 

Commentary to § 4B1.2 to the guideline 

itself as a new subsection (c) to alleviate 

any confusion and uncertainty resulting 

from the D.C. Circuit’s decision. 

In addition to moving the inchoate 

offenses provision from the 

Commentary to the guideline, Part C of 

the proposed amendment would revise 

the provision to provide that the terms 

‘‘crime of violence’’ and ‘‘controlled 

substance offense’’ include the offenses 

of aiding and abetting, attempting to 

commit, [soliciting to commit,] or 

conspiring to commit any such offense, 

or any other inchoate offense or offense 

arising from accomplice liability 

involving a ‘‘crime of violence’’ or a 

‘‘controlled substance offense.’’ Three 

options are provided to address the 

other issues brought by the Department 

of Justice in different ways. 

Option 1 would address the 

conspiracy issue in a comprehensive 

manner that would be applicable to all 

other inchoate offenses and offenses 

arising from accomplice liability. It 

would eliminate the need for the twostep analysis discussed above by adding 

the following to the new subsection (c): 

‘‘To determine whether any offense 

described above qualifies as a ‘crime of 

violence’ or ‘controlled substance 

offense,’ the court shall only determine 

whether the underlying substantive 

offense is a ‘crime of violence’ or a 

‘controlled substance offense,’ and shall 

not consider the elements of the 

inchoate offense or offense arising from 

accomplice liability.’’ 

Option 2, similar to Option 1, would 

eliminate the need for the two-step 

analysis generally by providing that to 

determine whether an inchoate offense 

or an offense arising from accomplice 

liability qualifies as a ‘‘crime of 

violence’’ or ‘‘controlled substance 

offense,’’ the court shall only determine 

whether the underlying substantive 

offense is a ‘‘crime of violence’’ or a 

‘‘controlled substance offense,’’ and 

shall not consider the elements of the 

inchoate offense or offense arising from 

accomplice liability. However, Option 2 

sets forth two suboptions to address 

conspiracy offenses. Suboption 2A 

would provide that an offense of 

conspiring to commit a ‘‘crime of 

violence’’ or a ‘‘controlled substance 

offense’’ qualifies as a ‘‘crime of 

violence’’ or a ‘‘controlled substance 

offense’’ only if the underlying 

substantive offense is a ‘‘crime of 

violence’’ or a ‘‘controlled substance 

offense’’ and an overt act must be 

proved as an element of the conspiracy 

offense. Suboption 2B treats ‘‘crime of 

violence’’ and ‘‘controlled substance 

offense’’ differently with respect to 

conspiracy offenses. It would eliminate 

the need for the two-step analysis for an 

offense of conspiring to commit a 

‘‘crime of violence,’’ but it would 

provide that an offense of conspiring to 

commit a ‘‘controlled substance 

offense’’ qualifies as a ‘‘controlled 

substance offense’’ only if the 

underlying substantive offense is a 

‘‘controlled substance offense’’ and an 

overt act must be proved as an element 

of the conspiracy offense. 

Option 3 would take a narrower 

approach, addressing only the 

conspiracy issue, and not adding 

language to subsection (c) eliminating 

the two-step analysis described above. 

Option 3 would amend the commentary 

to add an application note relating to 

offenses of conspiring to commit a 

‘‘crime of violence’’ or a ‘‘controlled 

substance offense.’’ It sets forth two 

suboptions. Suboption 3A treats 

offenses of conspiring to commit a 

‘‘crime of violence’’ or a ‘‘controlled 

substance offense’’ the same way but 

brackets two possible alternatives for 

the overt-act issue. It provides that an 

offense of conspiring to commit a 

‘‘crime of violence’’ or a ‘‘controlled 

substance offense’’ qualifies as a ‘‘crime 

of violence’’ or a ‘‘controlled substance 

offense,’’ [regardless of whether] [only 

if] an overt act must be proved as an 

element of the conspiracy offense. 

Suboption 3B treats ‘‘crime of violence’’ 

and ‘‘controlled substance offense’’ 

differently with respect to conspiracy 

offenses. It provides that an offense of 

conspiring to commit a ‘‘crime of 

violence’’ qualifies as a ‘‘crime of 

violence,’’ regardless of whether an 

overt act must be proved as an element 

of the conspiracy offense; however, an 

offense of conspiring to commit a 

‘‘controlled substance offense’’ qualifies 

as a ‘‘controlled substance offense’’ only 

if an overt act must be proved as an 

element of the conspiracy offense. 

Issues for comment are also provided. 

Proposed Amendment: 


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Section 4B1.2 is amended by 

redesignating subsection (c) as 

subsection (d), and inserting the 

following new subsection (c): 

[Option 1 (which also includes 

changes to the commentary): 

‘‘(c) The terms ‘crime of violence’ and 

‘controlled substance offense’ include 

the offenses of aiding and abetting, 

attempting to commit, [soliciting to 

commit,] or conspiring to commit any 

such offense, or any other inchoate 

offense or offense arising from 

accomplice liability involving a ‘crime 

of violence’ or a ‘controlled substance 

offense.’ To determine whether any 

offense described above qualifies as a 

‘crime of violence’ or ‘controlled 

substance offense,’ the court shall only 

determine whether the underlying 

substantive offense is a ‘crime of 

violence’ or a ‘controlled substance 

offense,’ and shall not consider the 

elements of the inchoate offense or 

offense arising from accomplice 

liability.’’.] 

[Option 2 (which also includes 

changes to the commentary): 

[Suboption 2A: 

‘‘(c) The terms ‘crime of violence’ and 

‘controlled substance offense’ include 

the offenses of aiding and abetting, 

attempting to commit, [soliciting to 

commit,] or conspiring to commit any 

such offense, or any other inchoate 

offense or offense arising from 

accomplice liability involving a ‘crime 

of violence’ or a ‘controlled substance 

offense.’ To determine whether any 

offense described above qualifies as a 

‘crime of violence’ or ‘controlled 

substance offense,’ except for an offense 

of conspiring to commit a ‘crime of 

violence’ or ‘controlled substance 

offense,’ the court shall only determine 

whether the underlying substantive 

offense is a ‘crime of violence’ or a 

‘controlled substance offense,’ and shall 

not consider the elements of the 

inchoate offense or offense arising from 

accomplice liability. 

An offense of conspiring to commit a 

‘crime of violence’ or a ‘controlled 

substance offense,’ however, qualifies as 

a ‘crime of violence’ or a ‘controlled 

substance offense’ only if the underlying 

substantive offense is a ‘crime of 

violence’ or a ‘controlled substance 

offense’ and an overt act must be proved 

as an element of the conspiracy 

offense.’’.] 

[Suboption 2B: 

‘‘(c) The terms ‘crime of violence’ and 

‘controlled substance offense’ include 

the offenses of aiding and abetting, 

attempting to commit, [soliciting to 

commit,] or conspiring to commit any 

such offense, or any other inchoate 

offense or offense arising from 

accomplice liability involving a ‘crime 

of violence’ or a ‘controlled substance 

offense.’ To determine whether any 

offense described above qualifies as a 

‘crime of violence’ or ‘controlled 

substance offense,’ except for an offense 

of conspiring to commit a ‘controlled 

substance offense,’ the court shall only 

determine whether the underlying 

substantive offense is a ‘crime of 

violence’ or a ‘controlled substance 

offense,’ and shall not consider the 

elements of the inchoate offense or 

offense arising from accomplice 

liability. 

An offense of conspiring to commit a 

‘controlled substance offense,’ however, 

qualifies as a ‘controlled substance 

offense’ only if the underlying 

substantive offense is a ‘controlled 

substance offense’ and an overt act must 

be proved as an element of the 

conspiracy offense.’’.]] 

[Option 3 (which also includes 

changes to the commentary): 

‘‘(c) The terms ‘crime of violence’ and 

‘controlled substance offense’ include 

the offenses of aiding and abetting, 

attempting to commit, [soliciting to 

commit,] or conspiring to commit any 

such offense, or any other inchoate 

offense or offense arising from 

accomplice liability involving a ‘crime 

of violence’ or a ‘controlled substance 

offense.’ ’’.] 

[Options 1, 2, and 3 (continued): 

The Commentary to § 4B1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by striking the following ‘‘ ‘Crime 

of violence’ and ‘controlled substance 

offense’ include the offenses of aiding 

and abetting, conspiring, and attempting 

to commit such offenses.’’; and in the 

paragraph that begins ‘‘A violation of 18 

U.S.C.§ 924 (c) or § 929(a)’’ by striking 

‘‘was a ‘crime of violence’ or a 

‘controlled substance offense’.’’ and 

inserting ‘‘was a ‘crime of violence’ or 

a ‘controlled substance offense.’ ’’.] 

[Option 3 (continued): 

The Commentary to § 4B1.2 captioned 

‘‘Application Notes’’ is further amended 

by redesignating Notes 3 and 4 as Notes 

4 and 5, respectively, and inserting the 

following new Note 3: 

[Suboption 3A: 

‘‘3. Application of Subsection (c).— 

For purposes of subsection (c), an 

offense of conspiring to commit a ‘crime 

of violence’ or a ‘controlled substance 

offense’ qualifies as a ‘crime of violence’ 

or a ‘controlled substance offense,’ 

[regardless of whether][only if] an overt 

act must be proved as an element of the 

conspiracy offense.’’.] 

[Suboption 3B: 

‘‘3. Application of Subsection (c).— 

For purposes of subsection (c), an 

offense of conspiring to commit a ‘crime 

of violence’ qualifies as a ‘crime of 

violence,’ regardless of whether an overt 

act must be proved as an element of the 

conspiracy offense. An offense of 

conspiring to commit a ‘controlled 

substance offense,’ however, qualifies as 

a ‘controlled substance offense’ only if 

an overt act must be proved as an 

element of the conspiracy offense.’’.] ] 

Issues for Comment: 

1. As indicated above, in determining 

whether an inchoate offense is a ‘‘crime 

of violence’’ or a ‘‘controlled substance 

offense,’’ some courts have employed a 

two-step analysis. First, courts compare 

the substantive offense to its generic 

definition to determine whether it is 

‘‘crime of violence’’ or a ‘‘controlled 

substance offense.’’ Then, these courts 

make a second and separate analysis 

comparing the inchoate offense 

involving that substantive offense to the 

generic definition of the specific 

inchoate offense. To promote clarity and 

consistency in the application of the 

career offender guideline, Option 1 of 

Part C of the proposed amendment 

would amend § 4B1.2 (Definitions of 

Terms Used in Section 4B1.1) to clarify 

that the offenses of aiding and abetting, 

attempting to commit, [soliciting to 

commit,] or conspiring to commit a 

‘‘crime of violence’’ or a ‘‘controlled 

substance offense,’’ or any other 

inchoate offense or offense arising from 

accomplice liability involving a ‘‘crime 

of violence’’ or a ‘‘controlled substance 

offense’’ are a ‘‘crime of violence’’ or a 

‘‘controlled substance offense’’ if the 

substantive offense is a ‘‘crime of 

violence’’ or a ‘‘controlled substance 

offense.’’ 

The Commission seeks comment on 

whether the guidelines should be 

amended to make this clarification. 

Should the guidelines adopt a different 

approach for these types of offenses? If 

so, what should that different approach 

be? For example, should the 

Commission require the courts to use a 

two-step analysis in determining 

whether an inchoate offense is a ‘‘crime 

of violence’’ or a ‘‘controlled substance 

offense’’? Should the Commission 

require courts to use a two-step analysis 

for an inchoate offense involving a 

‘‘controlled substance offense’’ but 

provide that an inchoate offense 

involving a ‘‘crime of violence’’ is 

always a ‘‘crime of violence’’ if the 

substantive offense is a ‘‘crime of 

violence’’? 

2. The Commission seeks comment on 

how the guidelines definitions of ‘‘crime 

of violence’’ and ‘‘controlled substance 

offense’’ should address the offenses of 

aiding and abetting, attempting to 

commit, soliciting to commit, or 

conspiring to commit a ‘‘crime of 


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violence’’ or a ‘‘controlled substance 

offense,’’ or any other inchoate offense 

or offense arising from accomplice 

liability involving a ‘‘crime of violence’’ 

or a ‘‘controlled substance offense.’’ 

Specifically, should the Commission 

promulgate any of the options provided 

above? Should the Commission provide 

additional requirements or guidance to 

address these types of offenses? What 

additional requirements or guidance, if 

any, should the Commission provide? 

(D) Definition of ‘‘Controlled Substance 

Offense’’ 

Synopsis of Proposed Amendment: 

Subsection (b) of § 4B1.2 (Definitions of 

Terms Used in Section 4B1.1) defines a 

‘‘controlled substance offense’’ as an 

offense that prohibits ‘‘the manufacture, 

import, export, distribution, or 

dispensing of a controlled substance (or 

counterfeit substance) or the possession 

of a controlled substance (or a 

counterfeit substance) with intent to 

manufacture, import, export, distribute, 

or dispense.’’ 

In its annual letter to the Commission, 

the Department of Justice has raised a 

concern that courts have held that state 

drug statutes that include an offense 

involving an ‘‘offer to sell’’ a controlled 

substance do not qualify as a 

‘‘controlled substance offense’’ under 

§ 4B1.2(b) because such statutes 

encompass conduct that is broader than 

§ 4B1.2(b)’s definition of a ‘‘controlled 

substance offense.’’ See Annual Letter 

from the Department of Justice to the 

Commission (Aug. 10, 2018), at https:// 

www.ussc.gov/sites/default/files/pdf/ 

amendment-process/public-comment/ 

20180810/DOJ.pdf. The Commission 

previously addressed a similar issue 

regarding the definition of a ‘‘drug 

trafficking offense’’ in the illegal reentry 

guideline at § 2L1.2 (Unlawfully 

Entering or Remaining in the United 

States). In 2008, the Commission 

amended the Commentary to § 2L1.2 to 

clarify that an offer to sell a controlled 

substance is a ‘‘drug trafficking offense’’ 

for purposes of that guideline, by adding 

‘‘offer to sell’’ to the conduct listed in 

the definition of ‘‘drug trafficking 

offense.’’ See USSG App. C, 

Amendment 722 (effective Nov. 1, 

2008). In 2016, the Commission 

comprehensively revised § 2L1.2. 

Among the changes made, the 

Commission amended the definition of 

‘‘crime of violence’’ in the Commentary 

to § 2L1.2 to conform it to the definition 

in § 4B1.2, but the Commission did not 

make changes to the ‘‘drug trafficking 

offense’’ definition in the Commentary 

to § 2L1.2. 

The career offender directive at 28 

U.S.C. § 994(h) directed the Commission 

to assure that ‘‘the guidelines specify a 

term of imprisonment at or near the 

maximum term authorized’’ for 

offenders who are 18 years or older and 

have been convicted of a felony that is, 

and also have previously been convicted 

of two or more felonies that are, a 

‘‘crime of violence’’ or ‘‘an offense 

described in section 401 of the 

Controlled Substances Act (21 U.S.C. 

841), sections 1002(a), 1005, and 1009 of 

the Controlled Substances Import and 

Export Act (21 U.S.C. 952(a), 955, and 

959), and chapter 705 of title 46.’’ Until 

2016, the only substantive criminal 

offense included in ‘‘chapter 705 of title 

46’’ was codified in section 70503(a) 

and read as follows: 

An individual may not knowingly or 

intentionally manufacture or distribute, 

or possess with intent to manufacture or 

distribute, a controlled substance on 

board— 

(1) a vessel of the United States or a 

vessel subject to the jurisdiction of the 

United States; or 

(2) any vessel if the individual is a 

citizen of the United States or a resident 

alien of the United States. 

46 U.S.C. § 70503(a) (2012). Section 

70506(b) provided that a person 

attempting or conspiring to violate 

section 70503 was subject to the same 

penalties as provided for violating 

section 70503. 

In 2016, Congress enacted the Coast 

Guard Authorization Act of 2015, Pub. 

L. 114–120 (2016), amending, among 

other things, Chapter 705 of Title 46. 

Specifically, Congress revised section 

70503(a) as follows: 

While on board a covered vessel, an 

individual may not knowingly or 

intentionally— 

(1) manufacture or distribute, or 

possess with intent to manufacture or 

distribute, a controlled substance; 

(2) destroy (including jettisoning any 

item or scuttling, burning, or hastily 

cleaning a vessel), or attempt or 

conspire to destroy, property that is 

subject to forfeiture under section 511(a) 

of the Comprehensive Drug Abuse 

Prevention and Control Act of 1970 (21 

U.S.C. 881(a)); or 

(3) conceal, or attempt or conspire to 

conceal, more than $100,000 in 

currency or other monetary instruments 

on the person of such individual or in 

any conveyance, article of luggage, 

merchandise, or other container, or 

compartment of or aboard the covered 

vessel if that vessel is outfitted for 

smuggling. 

46 U.S.C. § 70503(a). Section 70506(b) 

remained unchanged. The Act added 

two new offenses to section 70503(a), in 

subparagraphs (2) and (3). Accordingly, 

‘‘chapter 705 of title 46,’’ as referenced 

in 28 U.S.C. § 994(h), was also amended. 

However, these two new offenses may 

not be covered by the current definition 

of ‘‘controlled substance offense’’ in 

§ 4B1.2. 

Part D of the proposed amendment 

would amend the definition of 

‘‘controlled substance offense’’ in 

§ 4B1.2(b) to address these issues. First, 

it would amend the definition to 

include offenses involving an offer to 

sell a controlled substance, which 

would align it with the current 

definition of ‘‘drug trafficking offense’’ 

in the Commentary to § 2L1.2. Second, 

it would revise the ‘‘controlled 

substance offense’’ definition to also 

include ‘‘an offense described in 46 

U.S.C. § 70503(a) or § 70506(b).’’ 

An issue for comment is also 

provided. 

Proposed Amendment: 

Section 4B1.2(b) is amended by 

striking the following: 

‘‘The term ‘controlled substance 

offense’ means an offense under federal 

or state law, punishable by 

imprisonment for a term exceeding one 

year, that prohibits the manufacture, 

import, export, distribution, or 

dispensing of 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.’’, 

and inserting the following: 

‘‘The term ‘controlled substance 

offense’ means an offense under federal 

or state law, punishable by 

imprisonment for a term exceeding one 

year, that— 

(1) 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; or 

(2) is an offense described in 46 

U.S.C. § 70503(a) or § 70506(b).’’. 

Issue for Comment: 

1. Part D of the proposed amendment 

would amend the definition of 

‘‘controlled substance offense’’ in 

subsection (b) of § 4B1.2 (Definitions of 

Terms Used in Section 4B1.1) to include 

offenses involving an offer to sell a 

controlled substance. The Commission 

seeks comment on the extent to which 

such offenses should be included as 

‘‘controlled substance offenses’’ for 

purposes of the career offender 

guideline. Are there other drug offenses 

that are not included under this 

definition, but should be? For example, 

should the Commission expressly 

include as part of the definition offenses 


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involving the transportation of 

controlled substances? 

If the Commission were to amend the 

definition of ‘‘controlled substance 

offense’’ in § 4B1.2(b) to include other 

drug offenses, in addition to offenses 

involving an offer to sell a controlled 

substance, should the Commission 

revise the definition of ‘‘controlled 

substance offense’’ at § 2L1.2 

(Unlawfully Entering or Remaining in 

the United States) to conform it to the 

revised definition set forth in 

§ 4B1.2(b)? 

3. Miscellaneous 

Synopsis of Proposed Amendment: 

This proposed amendment responds to 

recently enacted legislation and 

miscellaneous guideline issues. See U.S. 

Sentencing Comm’n, ‘‘Notice of Final 

Priorities,’’ 83 FR 43956 (Aug. 28, 2018) 

(identifying as priorities 

‘‘[i]mplementation of any legislation 

warranting Commission action’’ and 

‘‘[c]onsideration of other miscellaneous 

issues[ ]’’). 

The proposed amendment contains 

five parts (Parts A through E). The 

Commission is considering whether to 

promulgate any or all these parts, as 

they are not mutually exclusive. 

Part A responds to the FDA 

Reauthorization Act of 2017, Pub. L. 

115–52 (Aug. 18, 2017), by amending 

Appendix A (Statutory Index) and the 

Commentary to § 2N2.1 (Violations of 

Statutes and Regulations Dealing with 

Any Food, Drug, Biological Product, 

Device, Cosmetic, Agricultural Product, 

or Consumer Product). It also makes a 

technical correction to the Commentary 

to § 2N1.1 (Tampering or Attempting to 

Tamper Involving Risk of Death or 

Bodily Injury). An issue for comment is 

also provided. 

Part B responds to the FAA 

Reauthorization Act of 2018, Pub. L. 

115–254 (Oct. 8, 2018), by amending 

Appendix A and § 2A5.2 (Interference 

with Flight Crew Member or Flight 

Attendant; Interference with Dispatch, 

Navigation, Operation, or Maintenance 

of Mass Transportation Vehicle), as well 

as the commentaries to § 2A2.4 

(Obstructing or Impeding Officers) and 

§ 2X5.2 (Class A Misdemeanors (Not 

Covered by Another Specific Offense 

Guideline)). An issue for comment is 

also provided. 

Part C responds to the Allow States 

and Victims to Fight Online Sex 

Trafficking Act of 2017, Pub. L. 115–164 

(Apr. 11, 2018), by amending Appendix 

A, § 2G1.1 (Promoting a Commercial Sex 

Act or Prohibited Sexual Conduct with 

an Individual Other than a Minor), and 

§ 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). Issues for 

comment are also provided. 

Part D responds to a guideline 

application issue concerning the 

interaction of § 2G1.3 and § 3D1.2 

(Grouping of Closely Related Counts). 

Although subsection (d) of § 3D1.2 

specifies that offenses covered by 

§ 2G1.1 are not grouped under the 

subsection, it does not specify whether 

or not offenses covered by § 2G1.3 are so 

grouped. Part D amends § 3D1.2(d) to 

provide that offenses covered by 

§ 2G1.3, like offenses covered by 

§ 2G1.1, are not grouped under 

subsection (d). 

Part E revises the guidelines to 

address the fact that the Bureau of 

Prisons (‘‘BOP’’) no longer operates a 

shock incarceration program as 

described in § 5F1.7 (Shock 

Incarceration Program (Policy 

Statement)). Part E amends the 

Commentary to § 5F1.7 to reflect the fact 

that BOP no longer operates the 

program. 

(A) FDA Reauthorization Act of 2017 

Synopsis of Proposed Amendment: 

Part A of the proposed amendment 

responds to the FDA Reauthorization 

Act of 2017, Pub. L. 115–52 (Aug. 18, 

2017). 

That act amended 21 U.S.C. § 333 

(Penalties [for certain violations of the 

Federal Food, Drug, and Cosmetic Act]) 

to add a new criminal offense for the 

manufacture or distribution of a 

counterfeit drug. The new offense states 

that 

any person who violates [21 U.S.C. 

§ 331(i)(3)] by knowingly making, 

selling, or dispensing, or holding for 

sale or dispensing, a counterfeit drug 

shall be imprisoned for not more than 

10 years or fined in accordance with 

title 18, United States Code, or both. 

21 U.S.C. § 333(b)(8). Section 331(i)(3) 

prohibits any action which causes a 

drug to be a counterfeit drug, or the sale 

or dispensing, or the holding for sale or 

dispensing, of a counterfeit drug. 

Currently, subsections (b)(1) through 

(b)(6) of 21 U.S.C. § 333 are referenced 

in Appendix A (Statutory Index) to 

§ 2N2.1 (Violations of Statutes and 

Regulations Dealing With Any Food, 

Drug, Biological Product, Device, 

Cosmetic, Agricultural Product, or 

Consumer Product), and subsection 

(b)(7) is referenced to § 2N1.1 

(Tampering or Attempting to Tamper 

Involving Risk of Death or Bodily 

Injury). Newly-enacted subsection (b)(8) 

is not referenced to any guideline. 

Part A of the proposed amendment 

would amend Appendix A to reference 

21 U.S.C. § 333(b)(8) to § 2N2.1. Part A 

would also amend the Commentary to 

§ 2N2.1 to reflect that subsection (b)(8), 

as well as subsections (b)(1) through 

(b)(6), of 21 U.S.C. § 333 are all 

referenced to § 2N2.1. Finally, Part A 

also makes a technical change to the 

Commentary to § 2N1.1, adding 21 

U.S.C. § 333(b)(7) to the list of statutory 

provisions referenced to that guideline. 

An issue for comment is also 

provided. 

Proposed Amendment: 

Appendix A (Statutory Index) is 

amended by inserting before the line 

referenced to 21 U.S.C. § 458 the 

following new line reference: 

‘‘21 U.S.C. 

§ 333(b)(8).

2N2.1’’. 

The Commentary to § 2N2.1 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘333(a)(1), (a)(2), (b)’’ and 

inserting ‘‘333(a)(1), (a)(2), (b)(1)–(6), 

(b)(8)’’. 

The Commentary to § 2N1.1 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘18 U.S.C. § 1365(a), (e)’’ and 

inserting ‘‘18 U.S.C. § 1365(a), (e); 21 

U.S.C. § 333(b)(7). For additional 

statutory provision(s), see Appendix A 

(Statutory Index)’’. 

Issue for Comment: 

1. Part A of the proposed amendment 

references newly-enacted 21 U.S.C. 

§ 333(b)(8) to § 2N2.1 (Violations of 

Statutes and Regulations Dealing With 

Any Food, Drug, Biological Product, 

Device, Cosmetic, Agricultural Product, 

or Consumer Product). The Commission 

seeks comment on whether any 

additional changes to the guidelines are 

required to account for section 

333(b)(8)’s offense conduct. Specifically, 

should the Commission amend § 2N2.1 

to provide a higher or lower base offense 

level if 21 U.S.C. § 333(b)(8) is the 

offense of conviction? If so, what should 

that base offense level be and why? 

Should the Commission add a specific 

offense characteristic to § 2N2.1 in 

response to section 333(b)(8)? If so, what 

should that specific offense 

characteristic provide and why? 

(B) FAA Reauthorization Act of 2018 

Synopsis of Proposed Amendment: 

Part B of the Proposed Amendment 

responds to the FAA Reauthorization 

Act of 2018, Pub. L. 115–254 (Oct. 8, 

2018). That act created two new 

criminal offenses concerning the 

operation of unmanned aircraft, 

commonly known as ‘‘drones,’’ and 


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added a new provision to an existing 

criminal statute that also concerns 

drones. 

The first new criminal offense, 

codified at 18 U.S.C. § 39B (Unsafe 

operation of unmanned aircraft), 

prohibits the unsafe operation of drones. 

Specifically, section 39B(a)(1) prohibits 

any person from operating an 

unmanned aircraft and knowingly 

interfering with the operation of an 

aircraft carrying one or more persons in 

a manner that poses an imminent safety 

hazard to the aircraft’s occupants. 

Section 39B(a)(2) prohibits any person 

from operating an unmanned aircraft 

and recklessly interfering with the 

operation of an aircraft carrying one or 

more persons in a manner that poses an 

imminent safety hazard to the aircraft’s 

occupants. Section 39B(b) prohibits any 

person from knowingly operating an 

unmanned aircraft near an airport 

runway without authorization. A 

violation of any of these prohibitions is 

punishable by a fine, not more than one 

year in prison, or both. A violation of 

subsection (a)(2) that causes serious 

bodily injury or death is punishable by 

a fine, not more than 10 years of 

imprisonment, or both. A violation of 

subsection (a)(1) or subsection (b) that 

causes serious bodily injury or death is 

punishable by a fine, imprisonment for 

any term of years or for life, or both. 

The second new criminal offense, 

codified at 18 U.S.C. § 40A (Operation 

of unauthorized unmanned aircraft over 

wildfires), generally prohibits any 

individual from operating an unmanned 

aircraft and knowingly or recklessly 

interfering with a wildfire suppression 

or with law enforcement or emergency 

response efforts related to a wildfire 

suppression. A violation of this offense 

is punishable by a fine, imprisonment 

for not more than two years, or both. 

The act also adds a new subsection 

(a)(5) to 18 U.S.C. § 1752 (Restricted 

building or grounds). The new 

subsection prohibits anyone from 

knowingly and willfully operating an 

unmanned aircraft system with the 

intent to knowingly and willfully direct 

or otherwise cause the system to enter 

or operate within or above a restricted 

building or grounds. A violation of 

section 1752 is punishable by a fine, 

imprisonment for not more than one 

year, or both. If the violator used or 

carried a deadly or dangerous weapon 

or firearm or if the offense results in 

significant bodily injury, the maximum 

term of imprisonment increases to ten 

years. 

Part B of the proposed amendment 

would amend Appendix A (Statutory 

Index) to reference 18 U.S.C. § 39B to 

§ 2A5.2 (Interference with Flight Crew 

Member or Flight Attendant; 

Interference with Dispatch, Navigation, 

Operation, or Maintenance of Mass 

Transportation Vehicle) and § 2X5.2 

(Class A Misdemeanors (Not Covered by 

Another Specific Offense Guideline)). 

Accordingly, courts would use § 2A5.2 

for felony violations of section 39B and 

§ 2X5.2 for misdemeanor violations. Part 

B would also make conforming changes 

to § 2A5.2 and its commentary and to 

the Commentary to § 2X5.2. 

In addition, Part B would amend 

Appendix A to reference 18 U.S.C. 

§ 40A to § 2A2.4 (Obstructing or 

Impeding Officers). Part B would also 

make conforming changes to the 

Commentary to § 2A2.4. 

Section 1752 is currently referenced 

in Appendix A to § 2A2.4 and § 2B2.3 

(Trespass). Accordingly, courts would 

use those guidelines for felony 

violations of newly-enacted 18 U.S.C. 

§ 1752(a)(5). Part B would make no 

changes to the guidelines to account for 

that provision. 

An issue for comment is also 

provided. 

Proposed Amendment: 

Appendix A (Statutory Index) is 

amended by inserting before the line 

referenced to 18 U.S.C. § 43’’ the 

following new line references: 

‘‘18 U.S.C. § 39B ............... 2A5.2, 2X5.2 

18 U.S.C. § 40A ................. 2A2.4’’. 

Section 2A5.2 is amended in the 

heading by striking ‘‘Vehicle’’ and 

inserting ‘‘Vehicle; Unsafe Operation of 

Unmanned Aircraft’’. 

The Commentary to § 2A5.2 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘18 U.S.C. § 1992(a)(1)’’ and 

inserting ‘‘18 U.S.C. §§ 39B, 1992(a)(1)’’. 

The Commentary to § 2X5.2 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘18 U.S.C. §§ 1365(f)’’ and 

inserting ‘‘18 U.S.C. §§ 39B, 1365(f)’’, 

and by striking ‘‘49 U.S.C. § 31310’’ and 

inserting ‘‘49 U.S.C. § 31310. For 

additional statutory provision(s), see 

Appendix A (Statutory Index)’’. 

The Commentary to § 2A2.4 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘18 U.S.C. §§ 111’’ and 

inserting ‘‘18 U.S.C. §§ 40A, 111’’. 

Issue for Comment: 

1. In response to the FAA 

Reauthorization Act of 2018, Pub. L. 

115–254 (Oct. 8, 2018), Part B of the 

proposed amendment references newlyenacted 18 U.S.C. § 39B to § 2A5.2 

(Interference with Flight Crew Member 

or Flight Attendant; Interference with 

Dispatch, Navigation, Operation, or 

Maintenance of Mass Transportation 

Vehicle) and § 2X5.2 (Class A 

Misdemeanors (Not Covered by Another 

Specific Offense Guideline)). Part B also 

references newly-enacted 18 U.S.C. 

§ 40A to § 2A2.4 (Obstructing or 

Impeding Officers). The Commission 

seeks comment on whether these 

proposed references are appropriate and 

whether any additional changes to the 

guidelines are required to account for 

the new criminal offenses created by the 

FAA Reauthorization Act. 

(C) Allow States and Victims to Fight 

Online Sex Trafficking Act of 2017 

Synopsis of Proposed Amendment: 

Part C of the proposed amendment 

responds to the Allow States and 

Victims to Fight Online Sex Trafficking 

Act of 2017, Pub. L. 115–164 (Apr. 11, 

2018). 

That act created two new criminal 

offenses codified at 18 U.S.C. § 2421A 

(Promotion or facilitation of prostitution 

and reckless disregard of sex 

trafficking). The first new offense, 

codified at 18 U.S.C. § 2421A(a), 

provides that [w]hoever, using a facility 

or means of interstate or foreign 

commerce or in or affecting interstate or 

foreign commerce, owns, manages, or 

operates an interactive computer service 

. . . , or conspires or attempts to do so, 

with the intent to promote or facilitate 

the prostitution of another person shall 

be fined under this title, imprisoned for 

not more than 10 years, or both. 

The second new offense, codified at 

18 U.S.C. § 2421A(b), is an aggravated 

form of the first. It provides an 

enhanced statutory maximum penalty of 

25 years for anyone who commits the 

first offense and either ‘‘(1) promotes or 

facilitates the prostitution of 5 or more 

persons’’ or ‘‘(2) acts in reckless 

disregard of the fact that such conduct 

contributed to sex trafficking, in 

violation of [18 U.S.C. § ] 1591(a).’’ 

Section 1591(a) criminalizes sex 

trafficking of a minor or sex trafficking 

of anyone by force, threats of force, 

fraud, or coercion. 

Part C of the proposed amendment 

would amend Appendix A (Statutory 

Index) to reference 18 U.S.C. § 2421A to 

§ 2G1.1 (Promoting a Commercial Sex 

Act or Prohibited Sexual Conduct with 

an Individual Other than a Minor) and 

§ 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). Offenses 

involving the promotion or facilitation 

of commercial sex acts are generally 

referenced to these guidelines. 


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If the offense did not involve a minor, 

§ 2G1.1 would be the applicable 

guideline. For a defendant convicted 

under 18 U.S.C. § 2421A, subsection 

(a)(2) would apply, and the defendant’s 

base offense level would be level 14. 

Part C would amend § 2G1.1(b)(1) so 

that the four-level increase in the 

defendant’s offense level provided by 

that specific offense characteristic 

would also apply if subsection (a)(2) 

applies and [the offense of conviction is] 

[the offense involved conduct described 

in] 18 U.S.C. § 2421A(b)(2). Section 

2421A(b)(2) is the version of the new 

aggravated offense under which the 

defendant has acted in reckless 

disregard of the fact that his or her 

conduct contributed to sex trafficking in 

violation of 18 U.S.C. § 1591(a). 

If the offense involved a minor, 

§ 2G1.3 would be the applicable 

guideline. For a defendant convicted 

under 18 U.S.C. § 2421A, subsection 

(a)(4) would apply, and the defendant’s 

base offense level would be level 24. 

Part C would amend § 2G1.3(b)(4) to 

renumber the existing specific offense 

characteristic as § 2G1.3(b)(4)(A) and to 

add a new § 2G1.3(b)(4)(B), which 

provides for a [4]-level increase in the 

defendant’s offense level if (i) 

subsection (a)(4) applies; and (ii) [the 

offense of conviction is] [the offense 

involved conduct described in] 18 

U.S.C. § 2421A(b)(2). Only the greater of 

§ 2G1.3(b)(4)(A) or § 2G1.3(b)(4)(B) 

would apply. 

Part C also would amend the 

Commentary to § 2G1.3 to add a new 

application note instructing that if 18 

U.S.C. § 2421A is the offense of 

conviction, the specific offense 

characteristic at § 2G1.3(b)(3)(B) does 

not apply. That special offense 

characteristic provides for a two-level 

increase in the defendant’s offense level 

if the offense involved the use of a 

computer or an interactive computer 

service to entice, encourage, offer, or 

solicit a person to engage in prohibited 

sexual conduct with a minor. 

Finally, Part C would make 

conforming changes to §§ 2G1.1 and 

2G1.3 and their commentaries. 

Issues for comment are also provided. 

Proposed Amendment: 

Appendix A (Statutory Index) is 

amended by inserting before the line 

referenced to 18 U.S.C. § 2422 the 

following new line reference: 

‘‘18 U.S.C. § 2421A .. 2G1.1, 2G1.3’’. 

Section 2G1.1(b)(1)(B) is amended by 

striking ‘‘the offense involved fraud or 

coercion’’ and inserting ‘‘(i) the offense 

involved fraud or coercion, or (ii) [the 

offense of conviction is] [the offense 

involved conduct described in] 18 

U.S.C. § 2421(A)(b)(2)’’. 

The Commentary to § 2G1.1 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘2422(a) (only if the offense 

involved a victim other than a minor)’’ 

and inserting ‘‘2421A (only if the 

offense involved a victim other than a 

minor), 2422(a) (only if the offense 

involved a victim other than a minor). 

For additional statutory provision(s), see 

Appendix A (Statutory Index)’’. 

Section 2G1.3(b) is amended in 

paragraph (4) by striking the following: 

‘‘If (A) the offense involved the 

commission of a sex act or sexual 

contact; or (B) subsection (a)(3) or (a)(4) 

applies and the offense involved a 

commercial sex act, increase by 2 

levels.’’, 

and inserting the following: 

‘‘(Apply the greater): 

(A) If (i) the offense involved the 

commission of a sex act or sexual 

contact; or (ii) subsection (a)(3) or (a)(4) 

applies and the offense involved a 

commercial sex act, increase by 2 levels. 

(B) If (i) subsection (a)(4) applies; and 

(ii) [the offense of conviction is][the 

offense involved conduct described in] 

18 U.S.C. § 2421A(b)(2), increase by [4] 

levels.’’. 

The Commentary to § 2G1.3 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘2422 (only if the offense 

involved a minor), 2423, 2425’’ and 

inserting ‘‘2421A (only if the offense 

involved a minor), 2422 (only if the 

offense involved a minor), 2423, 2425. 

For additional statutory provision(s), see 

Appendix A (Statutory Index)’’. 

The Commentary to § 2G1.3 captioned 

‘‘Application Notes’’ is amended by 

redesignating Notes 5, 6, and 7 as Notes 

6, 7, and 8, respectively, and inserting 

the following new Note 5: 

‘‘5. Application of Subsection (b)(3)(B) 

when the Offense of Conviction is 18 

U.S.C. § 2421A.—If the offense of 

conviction is 18 U.S.C. § 2421A, do not 

apply subsection (b)(3)(B).’’. 

Issues for Comment: 

1. Part C of the proposed amendment 

would reference newly-enacted 18 

U.S.C. § 2421A to § 2G1.1 (Promoting a 

Commercial Sex Act or Prohibited 

Sexual Conduct with an Individual 

Other than a Minor) and § 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), and would 

make various revisions to those 

guidelines to account for the new 

statute’s offense conduct. The 

Commission seeks comment on whether 

the proposed revisions are appropriate 

and on whether the Commission should 

make other changes to the guidelines to 

account for section 2421A’s offense 

conduct. 

In particular, Part C would rely on the 

specific offense characteristics and 

special instructions in §§ 2G1.1 and 

2G1.3 to produce the appropriate 

offense levels for the aggravated offense 

at 18 U.S.C. § 2421A(b). Should the 

Commission account for the aggravated 

offense in a different way, for example, 

by providing a higher base offense level 

if a defendant is convicted of that 

offense? If so, should the Commission 

use one of the base offense levels 

currently provided for convictions 

under other offenses, such as level 28, 

provided by § 2G1.3 for a conviction 

under 18 U.S.C. § 2422(b) or 2423(a), or 

level 34, provided by §§ 2G1.1 and 

2G1.3 for a conviction under 18 U.S.C. 

§ 1591(b)(1)? 

2. Newly-enacted 18 U.S.C. § 2421A is 

codified in chapter 117 (Transportation 

for Illegal Sexual Activity and Related 

Crimes) of title 18 of the United States 

Code, which contains statutes that 

generally prohibit conduct intended to 

promote or facilitate prostitution. 

Various guidelines refer to chapter 117, 

including § 4B1.5 (Repeat and 

Dangerous Sex Offender Against 

Minors) and § 5D1.2 (Term of 

Supervised Release). The Commission 

seeks comment on whether it should 

amend those guidelines to account for 

18 U.S.C. § 2421A. 

Specifically, § 4B1.5 provides for 

increases in the defendant’s offense 

level if the offense of conviction is a 

‘‘covered sex crime.’’ Application Note 

2 of the Commentary to § 4B1.5 states 

that a ‘‘covered sex crime’’ generally 

includes offenses under chapter 117 but 

excludes from coverage the offenses of 

‘‘transmitting information about a minor 

or filing a factual statement about an 

alien individual.’’ Should the 

Commission also exclude 18 U.S.C. 

§ 2421A from the definition of a 

‘‘covered sex crime’’? If so, why? If not, 

why not? 

Section 5D1.2 includes a policy 

statement recommending that the court 

impose the statutory maximum term of 

supervised release if the instant offense 

of conviction is a ‘‘sex offense.’’ 

Application Note 1 of the Commentary 

to § 5D1.2 defines ‘‘sex offense’’ to 

mean, among other things, an offense, 

perpetrated against a minor, under 

chapter 117, ‘‘not including transmitting 

information about a minor or filing a 

factual statement about an alien 


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Federal Register / Vol. 83, No. 244 / Thursday, December 20, 2018 / Notices 65419 

individual.’’ Should the Commission 

also exclude offenses under 18 U.S.C. 

§ 2421A from the definition of ‘‘sex 

offense’’ in Application Note 1? If so, 

why? If not, why not? 

(D) Grouping of Offenses Covered by 

§ 2G1.3 

Synopsis of Proposed Amendment: 

Part D of the proposed amendment 

revises § 3D1.2 (Grouping of Closely 

Related Counts) to provide that offenses 

covered by § 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) are not grouped under 

§ 3D1.2(d). 

Section 3D1.2 addresses the grouping 

of closely related counts for purposes of 

determining the offense level when a 

defendant has been convicted on 

multiple counts. Subsection (d) states 

that counts are grouped together 

‘‘[w]hen the offense level is determined 

largely on the basis of the total amount 

of harm or loss, the quantity of a 

substance involved, or some other 

measure of aggregate harm, or if the 

offense behavior is ongoing or 

continuous in nature and the offense 

guideline is written to cover such 

behavior.’’ Subsection (d) also contains 

lists of (1) guidelines for which the 

offenses covered by the guideline are to 

be grouped under the subsection and (2) 

guidelines for which the covered 

offenses are specifically excluded from 

grouping under the subsection. 

Section 2G1.1 (Promoting a 

Commercial Sex Act or Prohibited 

Sexual Conduct with an Individual 

Other than a Minor) is included in the 

list of guidelines for which the covered 

offenses are excluded from grouping 

under § 3D1.2(d). Section 2G1.3 is, 

however, not included on that list, even 

though several offenses that are 

referenced to § 2G1.3 when the offense 

involves a minor are referenced to 

§ 2G1.1 when the offense involves an 

individual other than a minor. In 

addition, several offenses that were 

referenced to § 2G1.1 before § 2G1.3 was 

promulgated are now referenced to 

§ 2G1.3. See USSG App. C, Amendment 

664 (effective Nov. 1, 2004). 

Furthermore, Application Note 6 of the 

Commentary to § 2G1.3 states that 

multiple counts under § 2G1.3 are not to 

be grouped. 

Section 2G1.3 is also not included on 

the list of guidelines for which the 

covered offenses are to be grouped 

under § 3D1.2(d). Because § 2G1.3 is 

included on neither list, § 3D.1(d) 

provides that ‘‘grouping under [the] 

subsection may or may not be 

appropriate and a ‘‘case-by-case 

determination must be made based 

upon the facts of the case and the 

applicable guideline (including specific 

offense characteristics and other 

adjustments) used to determine the 

offense level.’’ 

Part D of the proposed amendment 

would amend § 3D1.2(d) to add § 2G1.3 

to the list of guidelines for which the 

covered offenses are specifically 

excluded from grouping. 

Proposed Amendment: 

Section 3D1.2(d) is amended by 

striking ‘‘§§ 2G1.1, 2G2.1’’ and inserting 

‘‘§§ 2G1.1, 2G1.3, 2G2.1’’. 

(E) Policy Statement on Shock 

Incarceration Programs 

Synopsis of Proposed Amendment: 

Part E of the proposed amendment 

revises the guidelines to address the fact 

that the Bureau of Prisons (‘‘BOP’’) no 

longer operates a shock incarceration 

program as described in § 5F1.7 (Shock 

Incarceration Program (Policy 

Statement)) and the corresponding 

commentary. 

Section 4046 of title 18, United States 

Code, authorizes BOP to place any 

person who has been sentenced to a 

term of imprisonment of more than 12 

but not more than 30 months in a shock 

incarceration program if the person 

consents to that placement. Sections 

3582(a) and 3621(b)(4) of title 18 

authorize a court, in imposing sentence, 

to make a recommendation regarding 

the type of prison facility that would be 

appropriate for the defendant. In making 

such a recommendation, the court 

‘‘shall consider any pertinent policy 

statements issued by the Sentencing 

Commission.’’ 18 U.S.C. § 3582(a). 

Section 5F1.7 provides that, pursuant 

to sections 3582(a) and 3621(b)(4), a 

sentencing court may recommend that a 

defendant who meets the criteria set 

forth in section 4046 participate in a 

shock incarceration program. The 

Commentary to § 5F1.7 describes the 

authority for BOP to operate a shock 

incarceration program and the 

procedures that the BOP established in 

1990 regarding operation of such a 

program. 

In 2008, BOP terminated its shock 

incarceration program and removed the 

rules governing its operation. Part E 

would amend the Commentary to 

§ 5F1.7 to reflect those developments. 

Part E also would correct two 

typographical errors in the commentary. 

Proposed Amendment: 

The Commentary to § 5F1.7 captioned 

‘‘Background’’ is amended by— 

striking ‘‘six months’’ and inserting ‘‘6 

months’’; 

striking ‘‘as the Bureau deems 

appropriate. 18 U.S.C. § 4046.’ ’’ and 

inserting ‘‘as the Bureau deems 

appropriate.’ 18 U.S.C. § 4046.’’; 

and by striking the final paragraph as 

follows: 

‘‘The Bureau of Prisons has issued an 

operations memorandum (174–90 

(5390), November 20, 1990) that 

outlines eligibility criteria and 

procedures for the implementation of 

this program (which the Bureau of 

Prisons has titled ‘‘intensive 

confinement program’’). Under these 

procedures, the Bureau will not place a 

defendant in an intensive confinement 

program unless the sentencing court has 

approved, either at the time of 

sentencing or upon consultation after 

the Bureau has determined that the 

defendant is otherwise eligible. In 

return for the successful completion of 

the ‘‘intensive confinement’’ portion of 

the program, the defendant is eligible to 

serve the remainder of his term of 

imprisonment in a graduated release 

program comprised of community 

corrections center and home 

confinement phases.’’, 

and inserting the following: 

‘‘In 1990, the Bureau of Prisons 

(‘BOP’) issued an operations 

memorandum (174–90 (5390), 

November 20, 1990) that outlined 

eligibility criteria and procedures for the 

implementation of a shock incarceration 

program (which the Bureau of Prisons 

titled the ‘‘intensive confinement 

program’’). In 2008, however, BOP 

terminated the program and removed 

the rules governing its operation. See 73 

Fed. Reg. 39863 (July 11, 2008).’’. 

4. Technical Amendment 

Synopsis of Proposed Amendment: 

This proposed amendment makes 

various technical changes to the 

Guidelines Manual. 

Part A of the proposed amendment 

makes technical changes to reflect the 

editorial reclassification of certain 

sections in the United States Code. 

Effective December 1, 2015, the Office of 

Law Revision Counsel eliminated the 

Appendix to Title 50 of the United 

States Code and transferred the nonobsolete provisions to new chapters 49 

to 57 of Title 50 and to other titles of 

the Code. To reflect the new section 

numbers of the reclassified provisions, 

Part A of the proposed amendment 

makes changes to § 2M4.1 (Failure to 

Register and Evasion of Military 

Service), § 2M5.1 (Evasion of Export 

Controls; Financial Transactions with 


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65420 Federal Register / Vol. 83, No. 244 / Thursday, December 20, 2018 / Notices 

Countries Supporting International 

Terrorism), and Appendix A (Statutory 

Index). Similarly, effective September 1, 

2016, the Office of Law Revision 

Counsel also transferred certain 

provisions from Chapter 14 of Title 25 

to four new chapters in Title 25 in order 

to improve the organization of the title. 

To reflect these changes, Part A of the 

proposed amendment makes further 

changes to Appendix A. 

Part B of the proposed amendment 

makes certain technical changes to the 

Commentary to § 2D1.1 (Unlawful 

Manufacturing, Importing, Exporting, or 

Trafficking (Including Possession with 

Intent to Commit These Offenses); 

Attempt or Conspiracy). First, Part B of 

the proposed amendment amends the 

Drug Conversion Tables at Application 

Note 8(D) and the Typical Weight Per 

Unit Table at Application Note 9, to 

reorganize the controlled substances 

contained therein in alphabetical order 

to make the tables more user-friendly. It 

also makes minor changes to the 

controlled substance references to 

promote consistency in the use of 

capitalization, commas, parentheticals, 

and slash symbols throughout the Drug 

Conversion Tables. For example, the 

proposed amendment would change the 

reference to ‘‘Phencyclidine (actual)/ 

PCP (actual)’’ to ‘‘Phencyclidine (PCP) 

(actual).’’ Second, Part B of the 

proposed amendment makes clerical 

changes throughout the Commentary to 

correct some typographical errors. 

Finally, Part B of the proposed 

amendment amends the Background 

Commentary to add a specific reference 

to amendment 808, which replaced the 

term ‘‘marihuana equivalency’’ with the 

new term ‘‘converted drug weight’’ and 

changed the title of the ‘‘Drug 

Equivalency Tables’’ to ‘‘Drug 

Conversion Tables.’’ 

Part C of the proposed amendment 

makes technical changes to the 

commentaries to § 2A4.2 (Demanding or 

Receiving Ransom Money), § 2A6.1 

(Threatening or Harassing 

Communications; Hoaxes; False Liens), 

and § 2B3.2 (Extortion by Force or 

Threat of Injury or Serious Damage), and 

to Appendix A, to provide references to 

the specific applicable provisions of 18 

U.S.C. § 876. 

Part D of the proposed amendment 

makes clerical changes to— 

(1) the Background Commentary to 

§ 1B1.11 (Use of Guidelines Manual in 

Effect on Date of Sentencing (Policy 

Statement)), to update the citation of a 

Supreme Court case; 

(2) the Background Commentary to 

§ 3D1.1 (Procedure for Determining 

Offense Level on Multiple Counts), to 

correct references to certain chapters of 

the Guidelines Manual; and 

(3) the Background Commentary to 

§ 5G1.3 (Imposition of a Sentence on a 

Defendant Subject to an Undischarged 

Term of Imprisonment or Anticipated 

State Term of Imprisonment), to update 

the citation of a Supreme Court case. 

Proposed Amendment: 

(A) Reclassification of Sections of 

United States Code 

The Commentary to § 2M4.1 

captioned ‘‘Statutory Provisions’’ is 

amended by striking ‘‘50 U.S.C. App. 

§ 462’’ and inserting ‘‘50 U.S.C. § 3811’’. 

The Commentary to § 2M5.1 

captioned ‘‘Statutory Provisions’’ is 

amended by striking ‘‘50 U.S.C. App. 

§§ 2401–2420’’ and inserting ‘‘50 U.S.C. 

§§ 4601–4623. For additional statutory 

provision(s), see Appendix A (Statutory 

Index)’’. 

The Commentary to § 2M5.1 

captioned ‘‘Application Notes’’ is 

amended— 

in Note 3 by striking ‘‘50 U.S.C. App. 

§ 2410’’ and inserting ‘‘50 U.S.C. 

§ 4610’’; 

and in Note 4 by striking ‘‘50 U.S.C. 

App. 2405’’ and inserting ‘‘50 U.S.C. 

§ 4605’’. 

Appendix A (Statutory Index) is 

amended— 

in the line referenced to 25 U.S.C. 

§ 450d by striking ‘‘§ 450d’’ and 

inserting ‘‘§ 5306’’; 

and by striking the lines referenced to 

50 U.S.C. App. § 462, 50 U.S.C. App. 

§ 527(e), and 50 U.S.C. App. § 2410, and 

inserting before the line referenced to 52 

U.S.C. § 10307(c) the following new line 

references: 

‘‘50 U.S.C. § 3811 .. 2M4.1 

50 U.S.C. § 3937 .... 2X5.2 

50 U.S.C. § 4610 .... 2M5.1’’. 

(B) Technical Changes to Commentary 

to § 2D1.1 

The Commentary to § 2D1.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 8(A) by striking ‘‘the statute 

(21 U.S.C. § 841(b)(1)), as the primary 

basis’’ and inserting ‘‘the statute (21 

U.S.C. § 841(b)(1)) as the primary basis’’, 

and by striking ‘‘fentanyl, LSD and 

marihuana’’ and inserting ‘‘fentanyl, 

LSD, and marihuana’’; 

in Note 8(D)— 

under the heading relating to 

Schedule I or II Opiates, by striking the 

following: 

‘‘1 gm of Heroin = 1 kg 

1 gm of Dextromoramide = 670 gm 

1 gm of Dipipanone = 250 gm 

1 gm of 1-Methyl-4-phenyl-4- 

propionoxypiperidine/MPPP = 700 gm 

1 gm of 1-(2-Phenylethyl)-4-phenyl-4- 

acetyloxypiperidine/PEPAP = 700 gm 

1 gm of Alphaprodine = 100 gm 

1 gm of Fentanyl (N-phenyl-N-[1-(2- 

phenylethyl)-4-piperidinyl] 

Propanamide) = 2.5 kg 

1 gm of a Fentanyl Analogue = 10 kg 

1 gm of Hydromorphone/ 

Dihydromorphinone = 2.5 kg 

1 gm of Levorphanol = 2.5 kg 

1 gm of Meperidine/Pethidine = 50 gm 

1 gm of Methadone = 500 gm 

1 gm of 6-Monoacetylmorphine = 1 kg 

1 gm of Morphine = 500 gm 

1 gm of Oxycodone (actual) = 6700 gm 

1 gm of Oxymorphone = 5 kg 

1 gm of Racemorphan = 800 gm 

1 gm of Codeine = 80 gm 

1 gm of Dextropropoxyphene/PropoxypheneBulk = 50 gm 

1 gm of Ethylmorphine = 165 gm 

1 gm of Hydrocodone (actual) = 6700 gm 

1 gm of Mixed Alkaloids of Opium/ 

Papaveretum = 250 gm 

1 gm of Opium = 50 gm 

1 gm of Levo-alpha-acetylmethadol 

(LAAM) = 3 kg’’, 

and inserting the following: 

‘‘1 gm of 1-(2-Phenylethyl)-4-phenyl-4- 

acetyloxypiperidine (PEPAP) = 700 gm 

1 gm of 1-Methyl-4-phenyl-4- 

propionoxypiperidine (MPPP) = 700 gm 

1 gm of 6-Monoacetylmorphine = 1 kg 

1 gm of Alphaprodine = 100 gm 

1 gm of Codeine = 80 gm 

1 gm of Dextromoramide = 670 gm 

1 gm of Dextropropoxyphene/PropoxypheneBulk = 50 gm 

1 gm of Dipipanone = 250 gm 

1 gm of Ethylmorphine = 165 gm 

1 gm of Fentanyl (N-phenyl-N-[1-(2- 

phenylethyl)-4-piperidinyl] 

Propanamide) = 2.5 kg 

1 gm of a Fentanyl Analogue = 10 kg 

1 gm of Heroin = 1 kg 

1 gm of Hydrocodone (actual) = 6,700 gm 

1 gm of Hydromorphone/ 

Dihydromorphinone = 2.5 kg 

1 gm of Levo-alpha-acetylmethadol 

(LAAM) = 3 kg 

1 gm of Levorphanol = 2.5 kg 

1 gm of Meperidine/Pethidine = 50 gm 

1 gm of Methadone = 500 gm 

1 gm of Mixed Alkaloids of Opium/ 

Papaveretum = 250 gm 

1 gm of Morphine = 500 gm 

1 gm of Opium = 50 gm 

1 gm of Oxycodone (actual) = 6,700 gm 

1 gm of Oxymorphone = 5 kg 

1 gm of Racemorphan = 800 gm’’; 

under the heading relating to Cocaine 

and Other Schedule I and II Stimulants 

(and their immediate precursors), by 

striking the following: 

‘‘1 gm of Cocaine = 200 gm 

1 gm of N-Ethylamphetamine = 80 gm 

1 gm of Fenethylline = 40 gm 

1 gm of Amphetamine = 2 kg 

1 gm of Amphetamine (Actual) = 20 kg 

1 gm of Methamphetamine = 2 kg 

1 gm of Methamphetamine (Actual) = 20 kg 

1 gm of ‘‘Ice’’ = 20 kg 

1 gm of Khat = .01 gm 

1 gm of 4-Methylaminorex 

(‘‘Euphoria’’) = 100 gm 

1 gm of Methylphenidate (Ritalin) = 100 gm 

1 gm of Phenmetrazine = 80 gm 


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1 gm Phenylacetone/P2P (when possessed for 

the purpose of manufacturing 

methamphetamine) = 416 gm 

1 gm Phenylacetone/P2P (in any other 

case) = 75 gm 

1 gm Cocaine Base (‘‘Crack’’) = 3,571 gm 

1 gm of Aminorex = 100 gm 

1 gm of N-N-Dimethylamphetamine = 40 gm 

1 gm of N-Benzylpiperazine = 100 gm’’, 

and inserting the following: 

‘‘1 gm of 4-Methylaminorex 

(‘‘Euphoria’’) = 100 gm 

1 gm of Aminorex = 100 gm 

1 gm of Amphetamine = 2 kg 

1 gm of Amphetamine (actual) = 20 kg 

1 gm of Cocaine = 200 gm 

1 gm of Cocaine Base (‘‘Crack’’) = 3,571 gm 

1 gm of Fenethylline = 40 gm 

1 gm of ‘‘Ice’’ = 20 kg 

1 gm of Khat = .01 gm 

1 gm of Methamphetamine = 2 kg 

1 gm of Methamphetamine (actual) = 20 kg 

1 gm of Methylphenidate (Ritalin) = 100 gm 

1 gm of N-Benzylpiperazine = 100 gm 

1 gm of N-Ethylamphetamine = 80 gm 

1 gm of N-N-Dimethylamphetamine = 40 gm 

1 gm of Phenmetrazine = 80 gm 

1 gm of Phenylacetone (P2P) (when possessed 

for the purpose of manufacturing 

methamphetamine) = 416 gm 

1 gm of Phenylacetone (P2P) (in any other 

case) = 75 gm’’; 

Under the heading relating to 

Synthetic Cathinones (except Schedule 

III, IV, and V Substances), by striking ‘‘a 

synthetic cathinone’’ and inserting ‘‘a 

Synthetic Cathinone’’; 

Under the heading relating to LSD, 

PCP, and Other Schedule I and II 

Hallucinogens (and their immediate 

precursors), by striking the following: 

‘‘1 gm of Bufotenine = 70 gm 

1 gm of D-Lysergic Acid Diethylamide/ 

Lysergide/LSD = 100 kg 

1 gm of Diethyltryptamine/DET = 80 gm 

1 gm of Dimethyltryptamine/DM = 100 gm 

1 gm of Mescaline = 10 gm 

1 gm of Mushrooms containing Psilocin and/ 

or Psilocybin (Dry) = 1 gm 

1 gm of Mushrooms containing Psilocin and/ 

or Psilocybin (Wet) = 0.1 gm 

1 gm of Peyote (Dry) = 0.5 gm 

1 gm of Peyote (Wet) = 0.05 gm 

1 gm of Phencyclidine/PCP = 1 kg 

1 gm of Phencyclidine (actual)/PCP 

(actual) = 10 kg 

1 gm of Psilocin = 500 gm 

1 gm of Psilocybin = 500 gm 

1 gm of Pyrrolidine Analog of Phencyclidine/ 

PHP = 1 kg 

1 gm of Thiophene Analog of Phencyclidine/ 

TCP = 1 kg 

1 gm of 4-Bromo-2,5- 

Dimethoxyamphetamine/DOB = 2.5 kg 

1 gm of 2,5-Dimethoxy-4- 

methylamphetamine/DOM = 1.67 kg 

1 gm of 3,4-Methylenedioxyamphetamine/ 

MDA = 500 gm 

1 gm of 3,4- 

Methylenedioxymethamphetamine/ 

MDMA = 500 gm 

1 gm of 3,4-Methylenedioxy-Nethylamphetamine/MDEA = 500 gm 

1 gm of Paramethoxymethamphetamine/ 

PMA = 500 gm 

‘‘1 gm of 1- 

Piperidinocyclohexanecarbonitrile/ 

PCC = 680 gm 

1 gm of N-ethyl-1-phenylcyclohexylamine 

(PCE) = 1 kg’’, 

and inserting the following: 

‘‘1 gm of 1- 

Piperidinocyclohexanecarbonitrile 

(PCC) = 680 gm 

1 gm of 4-Bromo-2,5-Dimethoxyamphetamine 

(DOB) = 2.5 kg 

1 gm of 2,5-Dimethoxy-4- 

methylamphetamine (DOM) = 1.67 kg 

1 gm of 3,4-Methylenedioxyamphetamine 

(MDA) = 500 gm 

1 gm of 3,4- 

Methylenedioxymethamphetamine 

(MDMA) = 500 gm 

1 gm of 3,4-Methylenedioxy-Nethylamphetamine (MDEA) = 500 gm 

1 gm of Bufotenine = 70 gm 

1 gm of D-Lysergic Acid Diethylamide/ 

Lysergide (LSD) = 100 kg 

1 gm of Diethyltryptamine (DET) = 80 gm 

1 gm of Dimethyltryptamine (DM) = 100 gm 

1 gm of Mescaline = 10 gm 

1 gm of Mushrooms containing Psilocin and/ 

or Psilocybin (dry) = 1 gm 

1 gm of Mushrooms containing Psilocin and/ 

or Psilocybin (wet) = 0.1 gm 

1 gm of N-ethyl-1-phenylcyclohexylamine 

(PCE) = 1 kg 

1 gm of Paramethoxymethamphetamine 

(PMA) = 500 gm 

1 gm of Peyote (dry) = 0.5 gm 

1 gm of Peyote (wet) = 0.05 gm 

1 gm of Phencyclidine (PCP) = 1 kg 

1 gm of Phencyclidine (PCP) (actual) = 10 kg 

1 gm of Psilocin = 500 gm 

1 gm of Psilocybin = 500 gm 

1 gm of Pyrrolidine Analog of Phencyclidine 

(PHP) = 1 kg 

1 gm of Thiophene Analog of Phencyclidine 

(TCP) = 1 kg’’; 

under the heading relating to 

Schedule I Marihuana, by striking the 

following: 

‘‘1 gm of Marihuana/Cannabis, granulated, 

powdered, etc. = 1 gm 

1 gm of Hashish Oil = 50 gm 

1 gm of Cannabis Resin or Hashish = 5 gm 

1 gm of Tetrahydrocannabinol, Organic = 167 

gm 

1 gm of Tetrahydrocannabinol, 

Synthetic = 167 gm’’, 

and inserting the following: 

‘‘1 gm of Cannabis Resin or Hashish = 5 gm 

1 gm of Hashish Oil = 50 gm 

1 gm of Marihuana/Cannabis (granulated, 

powdered, etc.) = 1 gm 

1 gm of Tetrahydrocannabinol (organic) = 167 

gm 

1 gm of Tetrahydrocannabinol 

(synthetic) = 167 gm’’; 

under the heading relating to 

Synthetic Cannabinoids (except 

Schedule III, IV, and V Substances), by 

striking ‘‘a synthetic cannabinoid’’ and 

inserting ‘‘a Synthetic Cannabinoid’’, 

and by striking ‘‘‘Synthetic 

cannabinoid,’ for purposes of this 

guideline’’ and inserting ‘‘‘Synthetic 

Cannabinoid,’ for purposes of this 

guideline’’; 

under the heading relating to 

Schedule I or II Depressants (except 

gamma-hydroxybutyric acid), by 

striking ‘‘except gamma-hydroxybutyric 

acid’’ both places such term appears and 

inserting ‘‘except Gammahydroxybutyric Acid’’; 

under the heading relating to Gammahydroxybutyric Acid, by striking ‘‘of 

gamma-hydroxybutyric acid’’ and 

inserting ‘‘of Gamma-hydroxybutyric 

Acid’’; 

under the heading relating to 

Schedule III Substances (except 

ketamine), by striking ‘‘except 

ketamine’’ in the heading and inserting 

‘‘except Ketamine’’; 

under the heading relating to 

Ketamine, by striking ‘‘of ketamine’’ and 

inserting ‘‘of Ketamine’’; 

under the heading relating to 

Schedule IV (except flunitrazepam), by 

striking ‘‘except flunitrazepam’’ in the 

heading and inserting ‘‘except 

Flunitrazepam’’; 

under the heading relating to List I 

Chemicals (relating to the manufacture 

of amphetamine or methamphetamine), 

by striking ‘‘of amphetamine or 

methamphetamine’’ and inserting ‘‘of 

Amphetamine or Methamphetamine’’; 

under the heading relating to Date 

Rape Drugs (except flunitrazepam, GHB, 

or ketamine), by striking ‘‘except 

flunitrazepam, GHB, or ketamine’’ and 

inserting ‘‘except Flunitrazepam, GHB, 

or Ketamine’’, by striking ‘‘of 1,4- 

butanediol’’ and inserting ‘‘of 1,4- 

Butanediol’’, and by striking ‘‘of gamma 

butyrolactone’’ and inserting ‘‘of 

Gamma Butyrolactone’’; 

in Note 9, under the heading relating 

to Hallucinogens, by striking the 

following: 

‘‘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’’, 

and inserting the following: 

‘‘2,5-Dimethoxy-4- 

methylamphetamine 

(STP, DOM) *.

3 mg 

MDA .................................. 250 mg 

MDMA ............................... 250 mg 

Mescaline .......................... 500 mg 


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65422 Federal Register / Vol. 83, No. 244 / Thursday, December 20, 2018 / Notices 

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’’; 

and in Note 21, by striking ‘‘Section 

§ 5C1.2(b)’’ and inserting ‘‘Section 

5C1.2(b)’’. 

The Commentary to § 2D1.1 captioned 

‘‘Background’’ is amended by striking 

‘‘Public Law 103–237’’ and inserting 

‘‘Public Law 104–237’’, and by inserting 

after ‘‘to change the title of the Drug 

Equivalency Tables to the ‘Drug 

Conversion Tables.’’’ the following: 

‘‘See USSG App. C, Amendment 808 

(effective November 1, 2018).’’. 

(C) References to 18 U.S.C. § 876 

The Commentary to § 2A4.2 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘§§ 876,’’ and inserting 

‘‘§§ 876(a),’’. 

The Commentary to § 2A6.1 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘876,’’ and inserting ‘‘876(c),’’. 

The Commentary to § 2B3.2 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘§§ 875(b), 876,’’ and inserting 

‘‘§§ 875(b), (d), 876(b), (d),’’. 

Appendix A (Statutory Index) is 

amended by striking the line referenced 

to 18 U.S.C. § 876 and inserting before 

the line referenced to 18 U.S.C. § 877 

the following new line references: 

‘‘18 U.S.C. § 876(a) ........... 2A4.2, 2B3.2 

18 U.S.C. § 876(b) ............. 2B3.2 

18 U.S.C. § 876(c) ............. 2A6.1 

18 U.S.C. § 876(d) ............. 2B3.2, 2B3.3’’. 

(D) Clerical Changes 

The Commentary to § 1B1.11 

captioned ‘‘Background’’ is amended by 

striking ‘‘133 S. Ct. 2072, 2078’’ and 

inserting ‘‘569 U.S. 530, 533’’. 

The Commentary to § 3D1.1 captioned 

‘‘Background’’ is amended by striking 

‘‘Chapter 3, Part E (Acceptance of 

Responsibility) and Chapter 4, Part B 

(Career Offenders and Criminal 

Livelihood)’’ and inserting ‘‘Chapter 

Three, Part E (Acceptance of 

Responsibility) and Chapter Four, Part B 

(Career Offenders and Criminal 

Livelihood)’’. 

The Commentary to § 5G1.3 captioned 

‘‘Background’’ is amended by striking 

‘‘122 S. Ct. 1463, 1468’’ and inserting 

‘‘566 U.S. 231, 236’’, and by striking 

‘‘132 S. Ct. at 1468’’ and inserting ‘‘566 

U.S. at 236’’. 

[FR Doc. 2018–27505 Filed 12–19–18; 8:45 am] 

BILLING CODE 2210–40–P 


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