REPORT TO THE CONGRESS:

 CAREER OFFENDER SENTENCING ENHANCEMENTS
United States Sentencing Commission 

Patti B. Saris 

Chair 

Charles R. Breyer 

Vice Chair 

Dabney L. Friedrich 

Commissioner 

Rachel E. Barkow 

Commissioner 

William H. Pryor, Jr. 

Commissioner 

Michelle Morales 

Ex Officio 

J. Patricia Wilson Smoot

Ex Officio 

Kenneth P. Cohen

Staff Director

August 2016
TABLE OF CONTENTS

EXECUTIVE SUMMARY ........................................................... 1 

INTRODUCTION............................................................................5

GENESIS OF THE CAREER OFFENDER GUIDELINE.......... 11

The Career Offender Directive................................................... 12 

The Career Offender Directive in Context ................................. 13 

The Career Offender Guideline.................................................. 14 

WHO ARE CAREER OFFENDERS AND HOW ARE THEY 

SENTENCED? ......................................................................... 17 

Offender Demographics and Offense Characteristics................ 19 

Impact of Career Offender Status............................................... 21 

Sentences Relative to the Guideline Range ................................ 22 

Punishment................................................................................. 24 

RECOMMENDATION: THE CAREER OFFENDER GUIDELINE 

SHOULD FOCUS ON VIOLENT OFFENDERS .............................. 25 

The Commission’s Multi-Year Study.................................................26

Pathways to Career Offender Status.................................................26

Current Sentencing Practices............................................................27

Recidivism Rates ...............................................................................38

Takeaways and Recommendations....................................................43

Statutory Proposal ............................................................................45

RECOMMENDATION: CONGRESS SHOULD ENACT A UNIFORM 

DEFINITION OF “CRIME OF VIOLENCE” FOR FEDERAL 

CRIMINAL LAW APPLICATIONS ................................................ 47 

Federal Statutes Presently Contain Multiple Definitions..................48

The Need to Reform Recidivist Enhancement Definitions.................49 

The Commission’s Crime of Violence Definition ..............................52

Takeaways and Recommendations....................................................55

ENDNOTES ...................................................................................... 57

Appendix A: History of the Career Offender Guideline

Appendix B: Current Sentencing Practices: Data Collection and Analysis 

Process

Appendix C: Recidivism: Data Collection and Analysis Process

Appendix D: Statutory Definitions

i

EXECUTIVE SUMMARY
Pursuant to its general authority under 28 U.S.C. §§ 994 

and 995, the United States Sentencing Commission (“the 

Commission”) has undertaken a multi-year study of statutory 

and guideline definitions relating to the nature of a defendant’s 

prior conviction and the impact of such definitions on the 

relevant statutory and guideline provisions. The Commission 

analyzed the application and impact of the career offender 

guideline found at section 4B1.1 (Career Offender) of the 

Guidelines Manual, which implements a Congressional 

directive instructing the Commission to set the guideline range 

for offenders with specified instant and prior convictions at or 

near the statutory maximum. Tracking the statutory criteria, a 

defendant qualifies as a career offender if (1) the defendant was 

at least eighteen years old at the time he or she committed the 

instant offense of conviction; (2) the instant offense is a felony 

that is a crime of violence or a controlled substance offense; 

and (3) the defendant has at least two prior felony convictions 

of either a crime of violence or a controlled substance offense. 

Where these criteria are met, the directive, and therefore 

§4B1.1, provides for a guideline range “at or near the

maximum [term of imprisonment] authorized” — typically

resulting in a guidelines range significantly greater than would

otherwise apply.

During the course of its study, the Commission found that: 

 Career offenders are primarily convicted of drug

trafficking offenses – nearly three-quarters (74.1%)

of career offenders in fiscal year 2014 were convicted

of a drug trafficking offense and would have been

sentenced pursuant to §2D1.1 (Offenses involving

drugs and narco-terrorism).

 Career offenders are sentenced to long terms of

incarceration, receiving an average sentence of more

than 12 years (147 months). 

 As a result of these lengthy sentences, career offenders

now account for more than 11 percent of the total BOP

population.

 Even though they continue to receive lengthy sentences,

career offenders are increasingly receiving sentences

below the guideline range, often at the request of the

government. During the past ten years, the proportion

of career offenders sentenced within the applicable

guideline range has decreased from 43.3 percent in

fiscal year 2005 to 27.5 percent in fiscal year 2014,

while government sponsored departures have steadily

increased from 33.9 percent to 45.6 percent.

These findings prompted the Commission to explore concerns 

that the career offender directive fails to meaningfully 

distinguish among career offenders with different types of 

criminal records and has resulted in overly severe penalties for 

some offenders. 

The Commission conducted a detailed analysis of 

career offenders’ prior criminal history and recidivism after 

release from federal prison. This allowed for distinctions to be 

made among career offenders based on the nature of their prior 

offenses. Specifically, the Commission assigned each career 

offender in the study to one of three categories based on the 

types of offenses in their record potentially relevant to career 

offender status: drug trafficking only, violent only, and mixed. 

The Commission found clear and notable differences between 

these distinct pathways to career offender status: 

 Career offenders who have committed a violent instant

offense or a violent prior offense generally have a more

serious and extensive criminal history, recidivate at a

higher rate than drug trafficking only career offenders,

2
and are more likely to commit another violent offense in 

the future.

 The career offender directive has the greatest impact on

federal drug trafficking offenders because of the higher

statutory maximum penalties for those offenders

(offenders convicted under the primary drug trafficking

statute at 21 U.S.C. § 841 face statutory maximum

penalties up to life imprisonment).

 Drug trafficking only career offenders were most likely

to receive a sentence below the guideline range (often at

the request of the government), receiving an average

sentence (134 months) that is nearly identical to the

average guideline minimum (131 months) that would

have applied to those offenders through the normal

operation of the guidelines.

Consistent with these findings, the Commission has 

concluded that the career offender directive is best focused on 

those offenders who have committed at least one “crime of 

violence.” The Commission recommends that Congress amend 

the directive to reflect this principle by no longer including 

those who currently qualify as career offenders based solely on 

drug trafficking offenses. These reforms would help ensure 

that federal sentences better account for the severity of the 

offenders’ prior records, protect the public, and avoid undue 

severity for certain less culpable offenders. 

As part of its study, the Commission also observed the 

overall complexity of applying the career offender guideline 

and other similar recidivist enhancements. Federal statutes and

the sentencing guidelines currently contain a patchwork of 

definitions attempting to specify which prior offenses are

crimes of violence or violent felonies for purposes of recidivist 

enhancements. These definitions and the complex legal tests

(most notably the “categorical approach”) have resulted in 

confusion and inefficient use of resources on the part of both 

litigants and courts. Congress should act to address the 

inconsistency and complexity that persists by adopting a single,

uniform definition of “crime of violence” for all federal 

criminal law purposes. 

CONCLUSIONS

 The career offender directive should be amended to differentiate between career offenders with different types of

criminal records, and is best focused on those offenders who have committed at least one “crime of violence.”

 Career offenders who have committed a violent instant offense or a violent prior offense generally have a more serious

and extensive criminal history, recidivate at a higher rate than drug trafficking only career offenders, and are more

likely to commit another violent offense in the future.

 Drug trafficking only career offenders are not meaningfully different from other federal drug trafficking offenders

and should not categorically be subject to the significant increases in penalties required by the career offender

directive.

 A single definition of the term “crime of violence” in the guidelines and other federal recidivist provisions is necessary

to address increasing complexity and to avoid unnecessary confusion and inefficient use of court resources.

3
4
SECTION I 

INTRODUCTION

5
Over the past three decades, Congress has indicated that 

the number and nature of a federal offender’s prior convictions 

are important considerations in deciding a federal sentence. 

This policy determination is reflected in numerous statutory 

recidivist provisions proscribing increased statutory minimum 

and maximum punishments for defendants with specified prior 

convictions. Congress further codified this approach with the 

passage of the Sentencing Reform Act of 1984 (SRA)1

 in 

which it instructed federal courts to consider, among other 

things, the nature and circumstances of the offense and the 

history and characteristics of the defendant.2

 The SRA 

specifically included criminal history as a factor that courts 

must consider in imposing a sentence,3 and it instructed the 

Commission to consider criminal history in formulating the 

guidelines.4

Since the first guidelines were promulgated in 1987, the 

United States Sentencing Commission5 has also recognized the 

importance of an offender’s criminal history and has acted in a 

manner consistent with Congress’s legislative actions by 

specifically incorporating the number and nature of prior 

convictions in an offender’s background into the offender’s 

guideline determination. For example, an offender’s criminal 

history is considered in the calculation of the offender’s 

guideline range such that repeat offenders with more extensive 

or serious prior offenses receive longer sentences than firsttime offenders. In addition, the Commission independently 

decided to increase sentences for certain kinds of offenses, 

such as drug trafficking, firearms and sex offenses, if the 

offender committed drug trafficking, violent crimes or other 

sex offenses, respectively, in the past. The guidelines 

consideration of criminal history, particularly as used in

Chapter Four of the sentencing guidelines, is reflective of 

increased culpability and has proven to be a good measure of 

the risk of future recidivism.6

While continuing to support the notion that an offender 

with a long and serious criminal history should receive a more 

severe penalty than one without such a history, the 

Commission has observed that, in practice, determining which 

This report provides a broad overview of several key findings of the United States Sentencing Commission’s multi-year 

study of statutory and guideline definitions relating to the nature of a defendant’s prior conviction (e.g., “crime of violence,” 

“violent felony,” “drug trafficking offense,” and “felony drug offense”) and the impact of such definitions on the relevant 

statutory and guideline provisions (e.g., the career offender guideline and the Armed Career Criminal Act). The report begins 

by providing background on the career offender directive and the resulting career offender guideline. It also provides 

sentencing and recidivism data concerning career offenders, including data demonstrating the substantial impact the directive 

and the career offender guideline have on the resulting sentencing range. The report concludes by recommending statutory 

changes, including changes that would better tailor the significantly enhanced penalties required for career offenders. A more 

targeted approach in this area would account for differences among current career offenders and would result in sentences that 

are more proportional. 

6
prior convictions should result in substantially increased

sentences raises complex policy issues. First, the current

structure of some recidivist enhancements has resulted in

overly severe penalties for certain offenders, which has, in turn, 

led to increased departures and variances from the guidelines. 

Second, variations in the meaning of similar terms, such as 

“crime of violence” and “violent felony,” have resulted in 

unnecessary confusion and inefficient use of resources on the 

part of both litigants and courts. 

Prompted by these observations and growing criticisms 

regarding the scope and impact of certain recidivist statutes and 

guideline provisions, the Commission undertook a multi-year

study of statutory and guideline definitions relating to the 

nature of a defendant’s prior conviction (e.g., “crime of

violence,” “violent felony,” “drug trafficking offense,” and 

“felony drug offense”) and the impact of such definitions on 

the relevant statutory and guideline provisions (e.g., the career

offender and illegal reentry guidelines, and the Armed Career

Criminal Act). As a focal point of this study, the Commission 

analyzed the application and impact of the career offender 

guideline, which is found at §4B1.1 (Career Offender) of the 

Guidelines Manual. This provision implements a 

congressional directive instructing the Commission to set the 

guideline range for offenders with specified instant and prior 

convictions at or near the statutory maximum.

7

 

The Commission considered feedback from judges, 

practitioners, probation officers, academics, and other interest 

groups, including conducting a roundtable discussion on crimes

of violence and the “categorical approach,”

8

and studied case 

law interpreting these statutory and guideline definitions. The 

Commission has received extensive public comment, and is 

aware of numerous court opinions, expressing the view that 

having multiple definitions of the terms “crime of violence”

and “violent felony” leads to complexity and a lack of clarity. 

The categorical approach, devised by the Supreme Court as the 

method of interpreting these terms, has added more complexity 

over time. The Commission also analyzed sentencing data, 

including a study of sentences relative to the guideline ranges

for career offenders.9 As discussed in more detail below, this 

analysis demonstrates a decreasing rate of within range 

sentences (27.5% in fiscal year 2014), coupled with increasing 

rates of government sponsored (45.6%) and non-government 

sponsored below range sentences (25.9%) for career 

offenders.

10

One result of the Commission’s study was a January 

2016 amendment to the definition of “crime of violence” at 

§4B1.2 (Definitions of Terms Used in Section 4B1.1). While

this was an important and positive step, the Commission did

not adopt this recent amendment with the view that it had

accomplished all that should be done in this area. A number of

concerns remain, including:

(1) the overall severity of the enhancements for many

offenders under the career offender guideline;

(2) a failure to meaningfully distinguish among career

offenders with different types of criminal records; and

(3) the overall complexity of applying the career

offender guideline and other similar recidivist

enhancements.

7
More far-reaching changes are needed to address these 

concerns and achieve the goal of a fairer and more rational

career offender sentencing regime. The changes should ensure 

that sentences for repeat offenders are not unduly severe and

that they more proportionally take into account the severity of 

the offenders’ prior record so that individuals with different 

criminal histories are not automatically sentenced in the same

manner. To achieve these goals, the Commission makes two 

recommendations for statutory changes. 

First, the Commission recommends that Congress 

amend the career offender directive at 28 U.S.C. § 994(h) to 

permit the Commission to more effectively differentiate 

between career offenders with different types of criminal 

records. Sentencing data demonstrates clear and notable 

differences between career offenders who have committed a 

violent offense and those who are deemed career offenders 

based solely on drug trafficking offenses. The differences are 

seen both in the nature and extent of the offenders’ criminal 

history at the time of sentencing, as well as the likelihood of 

recidivism after release — recidivism rates for offenders with 

violence in their past are higher than those for offenders 

without a history of violent conduct. Contrary to what might 

be expected, the career offender directive has a significantly 

greater sentencing impact on career offenders who have 

committed an instant federal drug trafficking offense because 

such offenders often face much higher statutory maximum 

penalties than offenders convicted of a violent federal offense 

(e.g., offenders convicted under the primary drug trafficking 

statute at 21 U.S.C. § 841 face statutory maximum penalties up 

to life imprisonment, while the federal offense of robbery 

found at 18 U.S.C. § 1951 has a statutory maximum penalty of 

20 years imprisonment). 

Consistent with these findings, courts and the 

government generally perceive career offenders with a violent 

felony in their past differently from other career offenders. 

This perception is reflected in current sentencing practices,

with violent career offenders receiving fewer and lesser

departures or variances from the guidelines. Thus, while 

certain recidivist offenders should be punished more severely, 

the Commission has concluded that the career offender

directive, and the guideline based on that directive, is best

focused on those offenders who have committed at least one

“crime of violence.” The career offender directive at 18 U.S.C. 

§ 994(h) should be amended to reflect this principle.

Second, the Commission recommends that Congress 

adopt a single, uniform definition of “crime of violence” for all 

federal criminal law purposes. The definition should include a 

requirement that the prior offense have as an element the use, 

threatened use, or attempted use of physical force against the 

person of another, and the definition should include a short list

of enumerated offenses targeting the most serious predicate 

offenses without regard to whether it includes a use-of-force

element. While the Commission recently amended the career

offender guideline’s definition of “crime of violence,” 

inconsistency and complexity persist in other statutory 

provisions. Stakeholders universally have urged the 

Commission and Congress to replace the existing recidivist 

definitions with a single definition for use in all federal 

criminal contexts. 

In establishing a uniform definition, Congress should 

consider adopting the revised definition of “crime of violence” 

promulgated by the Commission in January 2016 to replace the 

existing “violent felony” provision of the Armed Career 

8
Criminal Act and the definitions of “crime of violence” in 18 

U.S.C. § 16 (at least to the extent applicable to criminal law) 

and 18 U.S.C. § 924(c). The Commission adopted its revised 

definition after a multi-year study of the categorical approach 

and predicate offense definitions. This study included 

extensive feedback from stakeholders and experts, such as a 

roundtable discussion about potential new approaches and a 

public hearing on the amendment. The Commission also 

conducted an exhaustive analysis of the available data about 

the career offender population and the relative risks and 

seriousness of possible predicate offenses.

11 That feedback 

and analysis resulted in a revised definition that responds to 

legal and practical concerns about the former definition, such 

as the need for courts to formulate “contemporary, generic” 

meanings for enumerated offenses. Adoption of this single 

definition across the various federal statutes would reduce 

confusion, maximize the efficient use of judicial resources, and 

focus on those offenders with the most serious violent criminal 

backgrounds. 

9
10
SECTION II 

GENESIS OF THE CAREER OFFENDER GUIDELINE

11
To understand the scope of the Commission’s recent 

changes and recommended areas for future changes, it is 

helpful to understand the evolution of the career offender 

sentencing regime starting from its origination in the 

Sentencing Reform Act of 1984. The background set forth 

below demonstrates the long-standing work that both Congress 

and the Commission have done in this area. The Commission 

seeks to continue the collaborative process by working with 

Congress to craft a career offender sentencing regime that 

ensures public safety and just punishment for recidivist 

offenders, while also recognizing the important differences 

among federal offenders with different types of convictions. 

The Career Offender Directive

The genesis of the career offender directive set forth at 

28 U.S.C. § 994(h) was an amendment by Senator Edward M. 

Kennedy to the Violent Crime and Drug Enforcement 

Improvement Act of 1982 mandating that courts sentence 

“career criminals” to “the maximum or approximately the 

maximum penalty for the current offense.”12 The Kennedy 

amendment included proposed language in the career offender 

mandate that was not a directive to the Commission, but rather 

a mandate to the sentencing court. 

The core of the Kennedy amendment was ultimately

made part of the Comprehensive Crime Control Act of 1983 as 

28 U.S.C. § 994(h). There, however, Congress changed the 

original provision to include a statutory directive to the 

Commission, rather than as a requirement for sentencing 

judges, as previously contemplated. The Senate Report 

described the rationale for the change, as follows:

Subsection (h) was added in the 98th Congress to 

replace a provision proposed by Senator 

Kennedy enacted in S. 2572, as part of proposed 

18 U.S.C. 3581, that would have mandated a 

sentencing judge to impose a sentence at or near 

the statutory maximum for repeat violent 

offenders and repeat drug offenders. The 

Committee believes that such a directive to the 

Sentencing Commission will be more effective; 

the guidelines development process can assure 

consistent and rational implementation of the 

Committee’s view that substantial prison terms 

should be imposed on repeat violent offenders 

and repeat drug traffickers.13 

A subsequent bill included the following proposed language for 

section 994(h): “The Commission shall assure that the 

guidelines will specify a sentence to a term of imprisonment at 

or near the maximum term authorized by Section 3581(b) of 

Title 18, United States Code.”14 This language was the origin 

of the final text for section 994(h), promulgated in the SRA,

15

which provides: 

The Commission shall assure that the guidelines 

specify a sentence to a term of imprisonment at 

or near the maximum term authorized for 

categories of defendants in which the defendant 

is eighteen years old or older and— 

(1) has been convicted of a felony that

is—

(A) a crime of violence; or

12
(B) 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; and

(2) has previously been convicted of two 

or more prior felonies, each of which 

is— 

(A) a crime of violence; or

(B) 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 46.16

The Career Offender Directive in Context

Congress created the Commission “to establish 

sentencing policies and practices for the federal criminal justice 

system” that implement the purposes of sentencing enumerated 

at 18 U.S.C. § 3553(a)(2).17 Pursuant to this directive, 

Congress delegated to the Commission “significant discretion 

in formulating guidelines.”18 The Commission’s authority and 

discretion in this area is nevertheless limited in some ways. 

Congress retains, for example, the authority to influence 

federal sentencing policy by enacting directives to the 

Commission, including the career offender directive at section 

994(h). 

The interplay between the Commission’s general 

authority and congressional directives, such as the career 

offender directive at section 994(h), was ultimately considered 

by the Supreme Court in United States v. LaBonte.

19 In 

LaBonte, the Department of Justice (DOJ) challenged the 

validity of an amendment to the career offender guideline that

precluded consideration of certain statutory enhancements in 

calculating the “offense statutory maximum.”20 In that 

amendment, the Commission defined the phrase “offense 

statutory maximum” as “the maximum term of imprisonment 

authorized for the offense of conviction that is a crime of 

violence or controlled substance offense, not including any 

increase in that maximum term under a sentencing 

enhancement provision that applies because of the defendant’s 

prior criminal record....”21

The DOJ argued that this amendment conflicted with 

the Commission’s obligation under the career offender 

directive to “assure that the guidelines specify a sentence to a 

term of imprisonment at or near the maximum term authorized 

for categories of [career offenders].” The Court agreed, 

concluding that the amendment conflicted with the plain, 

unambiguous language of section 994(h) and that the 

Commission therefore lacked authority to promulgate it.22 

Although the Court acknowledged that “Congress has 

delegated to the Commission ‘significant discretion in 

formulating guidelines’ for sentencing convicted federal 

offenders,” it emphasized that such discretion “must bow to the 

specific directives of Congress.”23 

13
The Court acknowledged that the career offender 

directive does give the Commission some discretion in 

promulgating guidelines for career offenders. However, the 

Court noted that “[section] 994(h) is designed to cabin the 

Commission’s discretion in the promulgation of guidelines for 

career offenders . . . ,”24 and held that “[w]hatever latitude 

section 994(h) affords the Commission in deciding how close a 

sentence must come to the maximum to be ‘near’ it, the statute 

does not license the Commission to select as the relevant 

‘maximum term’ a sentence that is different from the 

congressionally authorized maximum term.”25

Consistent with the Supreme Court’s interpretation in 

LaBonte, the Commission remains cognizant of the limitations 

on its authority to change the career offender guideline. While 

the Commission has made several changes to the definition of a 

career offender in the years since the guidelines were first 

promulgated, it has relied on its broader statutory authority to 

do so while continuing to ensure that the career offender 

guideline conforms to the directive’s overarching requirement 

that sentences for such offenders be at or near the statutory 

maximum. The background commentary to §4B1.1 explains: 

[I]n accord with its general guideline

promulgation authority under 28 U.S.C.

§ 994(a)-(f), and its amendment authority under

28 U.S.C. § 994(o) and (p), the Commission has

modified [the career offender] definition in

several respects to focus more precisely on the

class of recidivist offenders for whom a lengthy

term of imprisonment is appropriate and to avoid

“unwarranted sentencing disparities among

defendants with similar records who have been

found guilty of similar criminal conduct . . . .” 28 

U.S.C. § 991(b)(1)(B). 26

The commentary further explains: 

The Commission’s refinement of this definition 

over time is consistent with Congress’s choice of 

a directive to the Commission rather than a 

mandatory minimum sentencing statute (“The 

[Senate Judiciary] Committee believes that such 

a directive to the Commission will be more 

effective; the guidelines development process 

can assure consistent and rational 

implementation for the Committee’s view that 

substantial prison terms should be imposed on 

repeat violent offenders and repeat drug 

traffickers.” S. Rep. No. 225, 98th Cong., 1st 

Sess. 175 (1983)).27

Thus, while the Commission has “significant discretion 

in formulating guidelines,” Congress has specifically retained 

the authority to influence federal sentencing policy relating to 

“career offenders” by requiring that the guidelines assign a 

sentencing range at or near the maximum authorized term

when certain criteria are met. The Commission and Congress, 

therefore, must work together in order to implement the 

statutory changes proposed in this report. 

The Career Offender Guideline

Tracking the statutory criteria set forth in section 

994(h), the Commission implemented Congress’s directive by 

identifying a defendant as a career offender if (1) the defendant 

14
was at least eighteen years old at the time he or she committed 

the instant offense of conviction; (2) the instant offense is a 

felony that is a crime of violence or a controlled substance 

offense; and (3) the defendant has at least two prior felony 

convictions of either a crime of violence or a controlled 

substance offense. Where these criteria are met, the directive 

at section 994(h), and therefore §4B1.1, provide for a guideline 

range “at or near the maximum [term of imprisonment] 

authorized” — typically resulting in a guidelines range 

significantly greater than would otherwise apply. The 

guidelines accomplish this through two potential adjustments 

to the guidelines calculations. 

First, the guideline provides for a potentially increased 

final offense level (FOL) for the offender’s instant offense. A 

table at §4B1.1(b) provides a range of applicable final offense 

levels based on the statutory maximum penalties28 for an 

offender’s instant federal statute of conviction. As set forth in 

the following table, these adjusted offense levels range from 12 

to 37 depending on the underlying offense statutory maximum: 

Offense Statutory Maximum

Offense 

Level

Guideline Range 

with CHC VI

Life 37 360-life

25 years or more 34 262-327

20 years or more, but less than 25 years 32 210-262

15 years or more, but less than 20 years 29 151-188

10 years or more, but less than 15 years 24 100-125

5 years or more, but less than 10 years 17 51-63

More than 1 year, but less than 5 years 12 30-37

The guideline provides that the applicable offense level from 

this table should be applied only where it produces a higher 

offense level than the offense level that would apply if the 

defendant had not qualified as a career offender (i.e., the 

Chapter Two offense level is higher than the level in the career 

offender table). As noted in the table, these offense levels 

produce significant sentencing ranges under the guidelines. 

In addition to potentially increasing the applicable 

offense level, the career offender guideline also assigns all 

offenders to Criminal History Category (CHC) VI, regardless 

of the criminal history points assigned in Chapter Four of the 

guidelines. 

The terms “crime of violence” and “controlled 

substance offense” are defined in §4B1.2. As set forth more 

fully in Appendix A, the Commission has made several

changes to these definitions in the years since the guidelines 

were first promulgated. As revised by the Commission in 

January 2016,29 that section defines “crime of violence” as: 

“any offense under federal or state law, punishable by 

imprisonment for a term exceeding one year, that — (1) has as 

an element the use, attempted use, or threatened use of physical 

force against the person of another, or (2) is murder, voluntary 

manslaughter, kidnapping, aggravated assault, a forcible sex 

offense, robbery, arson, extortion, or the use or unlawful 

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

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

section defines “controlled substance offense” as “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.” 

15
16
SECTION III 

WHO ARE CAREER OFFENDERS AND HOW ARE THEY SENTENCED?

17
There were 75,836 federal criminal cases reported to 

the Commission during fiscal year 2014.30 Of the 67,672 

cases in which the Commission received complete guideline 

application information, 2,269 (3.4%) offenders were 

sentenced as career offenders. As demonstrated in the chart 

below, offenders sentenced under the career offender 

guidelines over the past ten years have consistently accounted

for about three percent of federal offenders sentenced each 

year. 

KEY FINDINGS

 Career offenders are sentenced to long terms

of incarceration, receiving an average

sentence of more than 12 years (147 months).

 As a result of the lengthy sentences imposed,

career offenders now account for over 11

percent of the total BOP population.

 Career offenders are increasingly receiving

sentences below the guideline range, often at

the request of the government.

SOURCE: U.S. Sentencing Commission 2005-2014 Datafiles, USSCFY05-USSCFY14. Only cases with complete guideline application information and sentenced under USSG §4B1.1 

were included. 

3.2 3.3 3.6 3.4 3.4 3.2 3.0 3.0 3.2 3.4

0.0

25.0

50.0

75.0

100.0

2005

(n=1,981)

2006

(n=2,124)

2007

(n=2,290)

2008

(n=2,321)

2009

(n=2,392)

2010

(n=2,314)

2011

(n=2,257)

2012

(n=2,232)

2013

(n=2,268)

2014

(n=2,269)

Percent Figure 1. 

Trend in Application of Career 

Offender Guideline (§4B1.1)

Fiscal Years 2005-2014

Career offenders have consistently 

accounted for about three percent 

of the total federal offender 

population sentenced each year 

over the past ten years.

18
Offender Demographics & Offense Characteristics

In fiscal year 2014, Black offenders accounted for more 

than half (59.7%) of offenders sentenced under the career 

offender guideline, followed by White (21.6 %), Hispanic 

(16.0%), and Other races (2.7%). Nearly all offenders 

sentenced under the career offender guideline were male 

(97.5%) and U.S. citizens (97.7%). Their average age at 

sentencing was 38 years.

In order to better understand the different types of 

career offenders, the Commission first analyzed the nature of 

the instant federal offense of conviction by identifying the 

primary Chapter Two sentencing guideline that would have 

applied in the absence of the career offender designation. 

In 2014, nearly three-quarters (74.1%) of career 

offenders were convicted of a drug trafficking offense and 

would have been sentenced pursuant to §2D1.1. The 

remaining offenders would have been sentenced for robbery 

(11.6%), unlawful receipt, possession, or transportation of 

firearms (5.4%), aggravated assault (1.6%), and drug offenses 

occurring near a protected location (1.6%). Other offense 

types constituted the remaining 5.8 percent.31

White

21.6

Black

59.7

Hispanic

16.0

Other

2.7

Male

97.5

Female

2.5

U.S. 

Citizen

97.7

Non-U.S. 

Citizen

2.3

0.0

20.0

40.0

60.0

80.0

100.0

SOURCE: U.S. Sentencing Commission 2014 Datafile, USSCFY14. Only cases with complete guideline application information and sentenced under USSG §4B1.1 were included. Cases missing information for any 

variables were excluded from the analysis for that variable. A total of 13 cases were excluded from the pie chart due to missing information on primary sentencing guideline.

Race Gender Citizenship

Percent

§2D1.1 (Drug

Trafficking)

74.1%

§2B3.1 (Robbery)

11.6%

§2K2.1 

(Firearms)

5.4%

§2A2.2 (Aggravated

Assault)

1.6%

§2D1.2 (Protected

Location)

1.6%

All Other

5.8%

Primary Sentencing Guideline

Figure 2. 

Demographic and Offense 

Characteristics of Career 

Offenders 

Fiscal Year 2014

In 2014, nearly three-quarters 

of career offenders were 

convicted of a drug trafficking 

offense and would have been 

sentenced pursuant to §2D1.1 

in the absence of the career 

offender designation.

19
The Commission also examined the distribution of 

career offenders across the six criminal history categories 

provided for by the guidelines. This analysis considered where 

the offender would have been placed in the absence of the 

career offender designation of CHC VI. The overwhelming 

majority of offenders (88.8%) were in the three highest CHCs 

prior to application of the career offender guideline. The 

largest proportion of offenders, 40.9 percent, had sufficient 

criminal history points to qualify for CHC VI prior to 

application of the career offender guideline. Combined, less 

than 12 percent of offenders would have otherwise been in 

CHC III (10.8%), CHC II (0.5%), and CHC I (0.0%).

0.0 0.5

10.8

24.5 23.4

40.9

0.0

20.0

40.0

60.0

80.0

100.0

CHC I CHC II CHC III CHC IV CHC V CHC VI

SOURCE: U.S. Sentencing Commission 2014 Datafile, USSCFY14. Only cases with complete guideline application information and sentenced under USSG §4B1.1 were included. A total of two cases were 

excluded due to missing information on criminal history points assigned.

Percent

Figure 3. 

Criminal History Category Prior 

to Application of Career 

Offender Guideline (§4B1.1)

Fiscal Year 2014

In 2014, the majority of career 

offenders (88.8%) were in the 

three highest criminal history 

categories (CHCs) prior to 

application of the career offender 

guideline.

20
Impact of Career Offender Status

The career offender guideline provides two mechanisms 

to ensure that a career offender is subject to a guideline range

“at or near the maximum [term of imprisonment] authorized”: 

(1) a potentially increased offense level based on the statutory

maximum of the instant offense, and (2) a requirement that the

offender be placed in the highest criminal history category.

In fiscal year 2014, the career offender designation 

affected the final guideline range for the majority (91.3%) of 

offenders sentenced under §4B1.1. For such offenders, the 

application of the career offender guideline resulted in an 

increase in the otherwise applicable offense level, criminal 

history category, or both. As shown in Figure 4, almost half 

(46.3%) had an increase in both final offense level and CHC as 

a result of application of the career offender guideline. An 

additional one-third (32.6%) had an increase in final offense 

level, but were already in CHC VI. An additional 12.4 percent 

had an increase in CHC, but no change in final offense level. 

Finally, 8.7 percent of offenders had no change in either final 

offense level or CHC as a result of application of the career 

offender guideline.

Some of the most significant sentencing impacts apply 

to those offenders who had the least extensive criminal history 

scores under Chapter Four of the guidelines. Over threequarters (76.6%) of the 254 offenders32 who would have been 

placed in CHC II and III in the absence of the career offender 

designation of CHC VI had an increase in both final offense 

level and CHC. As a result of these increases, the average 

guideline minimum for these 254 offenders was 211 months, 

an increase of 84 months over their average guideline 

minimum (127 months) before application of the career 

offender guideline. 

Figure 4. 

Impact of Career Offender Guideline (§4B1.1)

on Final Offense Level and Criminal History Category

Fiscal Year 2014

In fiscal year 2014, the career offender designation 

affected the final guideline range for the majority of 

offenders sentenced under §4B1.1.

21
Sentences Relative to the Guideline Range

During the past ten years, the proportion of career 

offenders sentenced within the applicable guideline range has 

decreased from 43.3 percent in fiscal year 2005 to 27.5 percent 

in fiscal year 2014. The within range rate is even lower, at 15 

percent, for those offenders who had the least extensive 

criminal history scores under Chapter Four of the Guidelines 

Manual and would have been placed in CHC II and III in the 

absence of the career offender designation.33 

The overall decrease in within range sentences 

primarily resulted from a steady increase in government 

sponsored departures from 33.9 percent to 45.6 percent during 

the same time period. While approximately one-quarter of 

career offenders received a government sponsored below range 

sentence based on substantial assistance during this time 

period,34 a growing proportion of career offenders received a 

below range sentence sponsored by the government for reasons 

other than substantial assistance. In fact, the rate of other 

government sponsored below range sentences has increased 

four-fold in the past ten years, from 5.6 percent in fiscal year 

2005 to 21.0 percent in fiscal year 2014. These offenders 

received an average reduction in their sentence of 40.3 percent 

in fiscal year 2014. 

The rate of non-government sponsored below range 

sentences has fluctuated over time. While increasing slightly 

from 22.2 percent to 25.9 percent over the same ten-year

period, non-government sponsored below range sentences are 

currently on a downswing.35 The rate of sentences above the 

guideline range has remained consistent at about one percent.

Figure 5. 

Sentences Relative to the Guideline 

Range for Career Offenders

Fiscal Years 2005-2014

During the past ten years, the proportion 

of career offenders sentenced within the 

applicable guideline range has decreased 

from 43.3 percent in fiscal year 2005 to 

27.5 percent in fiscal year 2014.

This decrease primarily resulted from a 

steady increase in government sponsored 

departures and variances, including a 

four-fold increase in other government 

sponsored below range sentences.

22
A comparison of the average sentence imposed and 

average guideline minimum during the same time period also 

illustrates the trend in sentences relative to the guideline range. 

From 2005 to 2014, both the average sentence imposed and 

average guideline minimum decreased for offenders sentenced 

under the career offender guideline. In 2005, the average 

sentence imposed was 182 months of imprisonment, 19.1 

percent lower than the average guideline minimum of 225 

months. 

However, the average sentence imposed decreased at a 

greater rate than the average guideline minimum — the 

average sentence imposed of 147 months in 2014 was 29.0 

percent lower than the average guideline minimum of 207 

months. Thus, the anchoring effect of the guidelines for career 

offenders appears to be diminishing. 

Figure 6. 

Average Guideline Minimum and 

Average Sentence Imposed for 

Career Offenders

Fiscal Years 2005-2014

From 2005 to 2014, both the 

average sentence imposed and 

average guideline minimum 

decreased for offenders sentenced 

under the career offender guideline. 

However, the average sentence 

imposed decreased at a greater rate 

than the average guideline 

minimum.

23
Punishment

For fiscal year 2014, virtually all career offenders were 

sentenced to terms of imprisonment (99.5%) with an average 

sentence imposed of 147 months. As demonstrated in Figure 7, 

approximately half of career offenders were sentenced to

between ten and 20 years of imprisonment (50.9%), while 13.8 

percent were sentenced to 20 years or more. Only 10.3 percent 

received sentences of less than five years, while 25 percent 

received sentences between five and ten years. 

Consistent with the data regarding the length of 

sentences imposed on career offenders, the current application 

of the career offender guideline has a sizeable impact on the 

overall prison population. Although career offenders

consistently represent only a small portion of federal offenders 

sentenced each year (3.4% in fiscal year 2014), 20,329 

offenders in Federal Bureau of Prisons (BOP) custody as of 

December 27, 2014 were sentenced using the career offender

guideline. This represented 11.4 percent of the total BOP

population serving a sentence for a federal conviction at that 

time.36 

Figure 7. 

Comparison of Career Offenders Sentenced Annually to Career Offenders in Federal Bureau of Prisons Population

24
SECTION IV 

RECOMMENDATION: 

THE CAREER OFFENDER GUIDELINE SHOULD FOCUS ON VIOLENT OFFENDERS

25
The Commission’s Multi-Year Study

During the course of its ongoing multi-year study of 

statutory and guideline definitions relating to the nature of a 

defendant’s prior conviction, the Commission received input 

from numerous stakeholders, including judges, practitioners, 

probation officers, academics, and other interest groups, 

relating to the application and impact of the career offender 

guidelines. The three primary concerns are: (1) the overall 

severity of the enhancements for many offenders sentenced 

under the career offender guideline resulting from the tie to 

the statutory maximum penalty of the instant offense of 

conviction; (2) a lack of distinction between offenders with 

differing types of qualifying instant offenses of conviction or 

differing types of predicate convictions; and (3) the overall 

complexity of applying the career offender guideline and other 

similar recidivist enhancements. 

This section considers the first two issues, focusing 

specifically on criticisms that the career offender guideline is

overbroad and too harsh in its treatment of some offenders, 

particularly those offenders who qualify as career offenders on 

the basis of drug offenses alone. 

Pathways to Career Offender Status

The career offender guideline specifies, in part, that an 

offender qualifies for application of the guideline if both the 

instant offense of conviction and at least two prior felony 

convictions are a crime of violence or a controlled substance 

offense. In order to explore concerns related to the severity of

the career offender guideline for some offenders, the 

Commission undertook an analysis to distinguish among those 

individuals designated as career offenders. More specifically, 

the Commission assigned each career offender in the study to 

one of three categories based on the potential combinations of 

instant and prior offenses provided for in the guidelines: drug 

trafficking only, violent only, and mixed. 

Using these three distinct pathways to career offender 

status, the Commission explored whether there were

differences in the ultimate sentence imposed. This analysis 

considered the impact of the career offender guideline on these 

different types of career offenders, including the impact of the 

final offense levels and criminal history categories on guideline 

ranges, and examined data relating to how different career 

offenders in the pathways were sentenced by the courts relative 

to their career offender guideline ranges. The Commission 

conducted a similar analysis to explore the recidivism rates of 

the different groups of career offenders who were released 

from custody in calendar years 2004 through 2006.37 

The Commission made several overarching findings: 

• There are clear and notable differences between drug

trafficking only career offenders and those career

offenders who have committed a violent offense.

• Career offenders who have committed a violent instant

offense or a violent prior offense generally have a more

serious and extensive criminal history, recidivate at a

higher rate than drug trafficking only career offenders,

and are more likely to commit another violent offense in

the future.

26
• Courts and the government generally perceive violent

only career offenders differently from other career

offenders. This perception is reflected in current

sentencing practices, with violent only career offenders

receiving fewer and less extensive departures or

variances from the guidelines.

• On the other hand, drug trafficking only career

offenders are more likely to receive a sentence below the

career offender guideline range. In fact, the average

sentence imposed in the cases involving drug traficking

only career offenders (134 months) is nearly identical to

the average guideline minimum (131 months) before

application of the career offender guideline.

In light of these findings, the Commission concludes 

that drug trafficking only career offenders are not meaningfully 

different than other federal drug trafficking offenders and 

therefore do not categorically warrant the significant increases 

in penalties provided for under the career offender guideline. 

Moreover, drug trafficking only offenders generally do not 

warrant similar (or at times greater) penalties than those career 

offenders who have committed a violent offense. Accordingly, 

it would be appropriate to restructure the statutory directive 

and the resulting career offender guideline to distinguish those 

offenders who are sentenced based solely on an instant drug 

trafficking offense and two drug trafficking predicates. Given

section 994(h)’s clear prescriptions, however, the Commission 

cannot effectuate such an amendment to the career offender 

guideline absent Congressional action to amend the directive.

Current Sentencing Practices

Methodology

In order to complete the analysis in this section, the 

Commission divided career offenders into three distinct 

categories. These categories are based on the potential 

combinations of instant and prior offenses provided for in the 

guidelines.38 The “drug trafficking only” category includes 

offenders with a drug trafficking instant offense, two or more 

prior drug trafficking convictions, and no prior violent 

offenses. The “violent only” category includes career 

offenders with a violent instant offense of conviction, two or 

more prior violent convictions, and no prior drug trafficking 

offenses. Finally, the “mixed category” encompasses all other 

career offenders who have either a drug trafficking or violent 

instant offense of conviction and any combination of violent 

and/or drug trafficking prior offenses. 

The Commission first examined all prior adult criminal 

history events for a representative, random 20 percent sample 

of the 2,269 career offenders sentenced during fiscal year 2014. 

As part of this project, the Commission collected information 

on the number and types of offenses that constitute the prior 

adult criminal history events for each offender.39 The 

Commission then categorized each of these criminal history 

events into standardized offense codes using a widely accepted 

standardization scheme pioneered by the independent research 

organization NORC at the University of Chicago40 and used in 

other studies, including the Commission’s 2016 report, 

Recidivism by Federal Offenders Placed on Probation or 

Released from Prison in 2005. 

27
Using the standardized classifications, the Commission 

next identified certain categories as “violent” for purposes of 

placing the offender into one of the three career offender 

pathways described above. In making these classifications, the 

Commission identified those offenses that are generally 

accepted as involving some level of violence, including many 

of those offenses that courts have found to qualify as “crimes 

of violence” under the career offender guideline.41 In terms of 

categorizing which career offenders had a violent instant 

offense, the Commission considered each career offender’s 

underlying Chapter Two guideline to isolate those who had 

been sentenced under a drug-related guideline. Career 

offenders who were not sentenced under a drug trafficking 

guideline were deemed to have an instant federal conviction for 

a crime of violence.42 

Using the above methodology, the Commission then 

assigned each of the offenders in the career offender sample to 

one of the three pathway categories — drug trafficking only, 

violent only, or mixed.43

Overview

As set forth in Figure 8, 26.7 percent of the study group 

had only drug trafficking convictions among their instant and 

prior offenses. More than half (60.6%) of the study group were 

in the mixed category, meaning that they had a combination of 

drug trafficking and violent offenses as their instant and prior 

convictions. The remaining 12.7 percent had only violent 

offenses among their instant and prior offenses. 

Drug trafficking predominated as the instant offense for 

offenders in the mixed offense category. The majority (80.9%) 

of offenders in the mixed offense category had drug trafficking 

as the instant offense, compared to 19.1 percent with a violent 

instant offense. 

Figure 8. 

Career Offender Pathways 

Fiscal Year 2014 Career Offender Sample

28
Offender Demographics 

As set forth in Figure 9, the demographics among the 

three pathways were very similar with the exception of race. 

Approximately half (52.6%) of the offenders in the violent only 

category were Black, compared to about 60 percent in the drug 

trafficking only and mixed categories. Hispanic offenders 

account for a higher proportion of the drug trafficking only 

(17.5%) and mixed categories (15.1%), as compared to the 

violent only category (8.8%). 

Figure 9. 

Demographic Characteristics 

of Career Offenders 

Fiscal Year 2014 Career Offender 

Sample

Black and Hispanic offenders 

account for a higher proportion 

of the drug trafficking only and 

mixed categories, as compared 

to the violent only category.

29
Nature and Extent of Criminal History 

The existence of violence in an offender’s instant 

offense or prior convictions correlates with a more serious and 

extensive criminal history score overall. Offenders in the 

mixed and violent only categories have more serious criminal 

histories in terms of criminal history points assigned prior to 

application of the career offender guideline. Close to half 

(44.5%) of offenders in the mixed and violent only (42.1%) 

categories were in CHC VI prior to application of the career 

offender guideline. On the other hand, half as many offenders 

in the drug trafficking only category (23.3%) were in CHC VI 

prior to application of the career offender provisions. Instead, 

offenders in the drug trafficking only category were distributed 

to a greater extent across CHC III through VI. 

The Commission also analyzed more closely the prior 

offenses for offenders in each of the three pathways to identify 

the single most serious prior offense that was most prominent 

among offenders in each group. For this analysis, the prior 

offenses were not limited to violent offenses and were not 

necessarily predicate offenses under the career offender 

guideline. Almost all offenders in the drug trafficking only 

group had drug trafficking as the most serious, common prior 

offense. On the other hand, career offenders in the other two 

groups were more likely to have previously committed a 

violent offense. Robbery was the most serious, common prior 

offense among offenders in the violent only category, with 56.1 

percent of those offenders having robbery as their most serious 

prior conviction. In the mixed category, assault was the most 

serious, common prior offense, with 42.9 percent of offenders 

Figure 10. 

Criminal History Category Prior to 

Application of Career Offender 

Guideline by Career Offender 

Pathway

Fiscal Year 2014 Career Offender 

Sample

More than twice as many offenders in 

the mixed and violent only categories 

were already in Criminal History 

Category VI before application of the 

career offender guideline, as compared 

with offenders in the drug trafficking 

only category.

30
having been convicted of assault as their most serious prior 

conviction. 

Impact of the Career Offender Guideline 

Despite the more significant criminal history for violent 

only and mixed career offenders, the career offender guideline

has the greatest impact on the offenders in the drug trafficking 

only category. This is, in large part, attributed to the fact that 

federal drug trafficking offenders often face much higher 

statutory maximum penalties than those offenders convicted of 

a violent federal offense. For example, offenders convicted 

under the primary drug trafficking statute at 21 U.S.C. § 841 

face statutory maximum penalties up to life imprisonment.44 In 

contrast, the federal offense of robbery found at 18 U.S.C. § 

1951 (Interference with commerce by threats or violence), 

commonly known as the Hobbs Act, has a statutory maximum 

penalty of 20 years imprisonment. 

These statutory maximum penalties directly impact a 

career offender’s final offense level under the guidelines. As 

previously discussed, the career offender guideline provides a 

range of applicable final offense levels based on the statutory 

maximum penalties for an offender’s statute of conviction that, 

if greater, supersede the otherwise applicable offense level. 

The table in §4B1.1 provides the following offenses levels 

depending on statutory maximum for instant federal offenses: 

Offense Statutory Maximum

Offense 

Level

Guideline Range 

with CHC VI

Life 37 360-life

25 years or more 34 262-327

20 years or more, but less than 25 years 32 210-262

15 years or more, but less than 20 years 29 151-188

10 years or more, but less than 15 years 24 100-125

5 years or more, but less than 10 years 17 51-63

More than 1 year, but less than 5 years 12 30-37

Figure 11 shows the frequency with which each of 

these offense levels was applied, comparing each of the three 

career offender pathways. The overwhelming majority 

(90.0%) of drug trafficking only offenders were subject to 

offense levels of 32, 34, or 37 pursuant to the career offender 

table, which corresponds to instant offenses with statutory 

maximums of 20 years or more, 25 years or more, or life, 

respectively. Drug trafficking only offenders had the highest 

percentage (31.7%) of cases involving statutory maximum

penalties of up to life imprisonment. This is consistent with the 

fact that offenders convicted under the primary drug trafficking 

statute at 21 U.S.C. § 841 face statutory maximum penalties of 

up to life imprisonment.45 A similar trend is also seen for 

offenders in the mixed category, which is consistent with the 

fact that the majority of those offenders had drug trafficking as 

the instant offense. 

31
Conversely, the majority (79.0%) of violent only career 

offenders faced statutory maximums of less than 25 years, with 

more than half (57.9%) having statutory maximums of 20 years

or more, but less than 25 years.

The fact that drug trafficking offenders as a whole often 

face higher statutory maximum penalties means the drug 

trafficking only career offenders are often impacted more 

substantially by the career offender guideline. This impact is 

further increased by the fact that drug trafficking offenders are 

less likely to have otherwise fallen into Criminal History 

Category VI absent application of the career offender 

guidelines. As noted in the previous section, about half as 

many offenders in the drug trafficking only category, as 

compared to the mixed and violent groups, would have already 

been in CHC VI. 

Figure 11. 

Career Offender Offense 

Level and Underlying 

Statutory Maximum by 

Career Offender Pathway

Fiscal Year 2014 Career 

Offender Sample

Because they often have 

higher statutory maximum 

penalties, the career offender 

guideline impacts offenders in 

the drug trafficking only 

category to a greater extent 

than those career offenders in 

the violent only and mixed 

categories.

32
More than half (57.5%) of offenders in the drug 

trafficking only category had both an increased final offense 

level and CHC as a result of application of the career offender 

guideline, as compared to approximately 40 percent for each of 

the other two categories. Whereas about one-third each of 

offenders in the mixed categories and violent only (33.8% and 

31.6%, respectively) received an increase in final offense level, 

but not CHC, as a result of application of the career offender 

guideline, that rate was about half (17.5%) for offenders in the 

drug trafficking only category. 

Similar proportions of offenders in each of the three 

categories had an increase in CHC, but no increase in the final 

offense level, as a result of the application of the guideline 

(ranging from about 13% to about 19%). Finally, slightly 

fewer offenders in the drug trafficking only category (5.8%) 

had neither an increase in final offense level or CHC, 

compared to offenders in the mixed (10.7%) and violent only 

(10.5%) categories. 

Figure 12. 

Impact of Career Offender 

Guideline on Final Offense 

Level and Criminal History 

Category by Career Offender 

Pathway

Fiscal Year 2014 Career 

Offender Sample

Offenders in the drug 

trafficking only category were 

more likely to have both an 

increased final offense level 

and criminal history category

as a result of application of the 

career offender guideline.

33
Sentences Imposed and Relative to the Guideline Range 

The Commission also observed significant differences 

in how courts sentence career offenders that fall within the 

violent only career offender pathway. As demonstrated in 

Figure 13, the average guideline minimum for offenders in the 

three categories are similar at 207 months for the drug 

trafficking only category, 212 months for the mixed category, 

and 209 months for the violent only category. 

Nonetheless, courts ultimately sentenced career 

offenders in the violent only category more severely compared 

to career offenders in the other two categories. The average 

sentence imposed for offenders in the violent only category 

was 179 months, an average of 9.9 percent lower than the 

guideline minimum. In contrast, the average sentences for 

offenders in the drug trafficking only and mixed categories of 

134 months and 145 months, respectively, were an average of 

32.7 percent and 29.6 percent lower than their respective 

average guideline minimums. 

Figure 13. 

Average Guideline Minimum 

and Average Sentence 

Imposed by Career Offender 

Pathway 

Fiscal Year 2014 Career Offender 

Sample

Despite relatively similar 

starting points, drug trafficking 

only career offenders were 

ultimately sentenced least

severely and with the great 

extent of departure or variance.

34
The average sentence in the cases involving drug 

traficking only career offenders (134 months) is nearly 

identical to the average guideline minimum (131 months) 

before application of the career offender guideline. This data 

may suggest that courts, and increasingly the government, 

view the career offender enhancement as overly severe for 

this group of career offenders, and that, instead, a sentence 

that is consistent with other non-career offender drug 

trafficking offenders is more appropriate. 

Offenders in the violent only category are also 

sentenced to below range sentences less frequently than 

offenders in the drug trafficking only and mixed categories. 

Nearly half (47.4%) of offenders in the violent only category

were sentenced within the applicable guideline range. This 

compares to 23.5 percent of offenders in the mixed category. 

The offenders in the drug trafficking only category had the 

lowest proportion of within range sentences at 22.5 percent. 

While offenders in the mixed category had higher 

rates of substantial assistance departures compared to the drug 

trafficking only offenders, 32.4 percent compared to 25.8 

percent, the reverse was true for other government sponsored 

below ranges sentences with drug trafficking only offenders at 

19.2 percent compared to mixed offenders with 16.9 percent. 

Similarly, drug trafficking offenders had the highest rate of 

non-government sponsored below range sentences at 31.7 

percent compared to mixed offenders with 26.5 percent and 

violent offenders with 22.8 percent. 

Figure 14. Average Guideline Minimum Before Impact and 

Average Sentence Imposed by Career Offender Pathway 

Fiscal Year 2014 Career Offender Sample

Figure 15. Sentences Relative to the Guideline Range by 

Career Offender Pathway

Fiscal Year 2014 Career Offender Sample

35
As demonstrated in Figure 16, further analysis of the 

within range rates for drug trafficking only career offenders 

provides additional evidence that courts and the government 

consider the significant impact of the career offender guideline. 

Those drug trafficking only offenders most severely impacted 

by the application of the career offender guideline were 

generally less likely to receive a within range sentence. Those 

drug trafficking only offenders who had both an increased final 

offense level and CHC as a result of application of the career 

offender guideline were sentenced within the range only 17.4 

percent of the time,46 as compared to 27.5 percent for all career 

offenders and 46.0 percent for all federal offenders in fiscal 

year 2014. 

By comparison, the within range rates for the drug 

trafficking only offenders for whom only the final offense level 

was affected was 33.3 percent. For those who only had their 

CHC affected, the within range rate was 26.1 percent. Finally, 

for those who had neither the final offense level nor the CHC 

affected, the rate was 28.6 percent. These higher rates of

within range sentences suggest that courts and the government 

view offenders whose offense conduct and criminal history 

independently merited a higher guideline range as more 

deserving of such punishment than those who received such a 

range through the career offender guideline alone. 

Figure 16. 

Impact of Career Offender 

Guideline on Final Offense Level 

and Criminal History Category for 

Offenders Sentenced Within the 

Guideline Range

Fiscal Year 2014 Career Offender 

Sample

Those drug trafficking only offenders 

most severely impacted by the 

application of the career offender 

guideline were generally less likely to 

receive a within range sentence. 

36
Comparing the extent of below range sentences for the 

three groups of offenders further demonstrates the differences 

in sentencing among the different career offender pathways. 

Offenders in the drug trafficking only category benefited from 

the largest reductions for both other government sponsored and 

non-government sponsored below range sentences, with 

average sentences below the guideline range of 45.6 percent 

and 39.6 percent, respectively. 

The extent of non-government below range sentences 

for offenders in the mixed category was more similar to 

offenders in the violent only category (average reduction of 

33.2% for mixed compared to 30.0% for violent only). On the 

other hand, the average extent of other government sponsored 

departures (other than for substantial assistance) for offenders 

in the mixed category (43.9%) was more similar to that of the 

drug trafficking only offenders. Consistent with the other rates 

of below range sentences, the extent of departure for the mixed 

category fell between those of drug trafficking only (45.6%) 

and violent only (31.6%). 

Figure 17. 

Average Extent of Below-Range 

Sentences by Career Offender 

Pathway

Fiscal Year 2014 Career Offender 

Sample

Offenders in the drug trafficking 

only category benefited from the 

largest reductions for both other 

government sponsored and

non-government sponsored below 

range sentences.

37
Recidivism Rates

As explained in greater detail in the Commission’s 

2016 publication, Recidivism Among Federal Offenders: A 

Comprehensive Overview,

47 the Commission is conducting a 

multi-year study of recidivism by federal offenders that 

substantially expands on the scope of previous Commission 

recidivism projects. As part of that ongoing recidivism project, 

the Commission also collected and examined criminal history 

records for citizen offenders sentenced under §4B1.1 (Career 

Offenders) who reentered the community in calendar years 

2004 through 2006. Although the main recidivism study group 

included only a single year (2005) of reentering offenders, the 

cohort was expanded for career offenders due to the smaller

number of offenders in that single year. The purpose of 

expanding the initial study group in this way was to increase 

the number of career offenders available for study, providing 

the opportunity to develop statistically useful conclusions 

about this subgroup of federal offenders. 

Using this recidivism data, the Commission conducted 

a similar pathways analysis of career offenders who reentered 

the community in calendar years 2004 through 2006. This 

analysis examined whether there were significant differences in 

recidivism rates of the three different types of career offenders. 

Methodology

Using the same process to gather and analyze 

information as that used in its recent recidivism report, 

Recidivism Among Federal Offenders: A Comprehensive 

Overview,

48 the Commission identified and processed the 

criminal records of more than 35,000 offenders who had a 

valid FBI number in either Commission or Bureau of Prisons 

records and were released during the study period. The 

primary study cohort included all federal offenders who were 

either released from federal prison after serving a sentence of 

imprisonment or were placed on probation in 2005. In 

addition, criminal history records were also drawn for U.S. 

citizen offenders sentenced under §4B1.1 (Career Offenders)

re-entering the community in calendar years 2004 and 2006 (in 

addition to those already included in the 2005 cohort). 

As described in the Commission’s recidivism report 

and Appendix C,49 the criminal history information for those 

offenders over the eight-year study period was extracted, 

parsed, and standardized50 in order to bring all records into a 

common framework. Following completion of that process, 

over thirty thousand (30,182) usable records were identified for 

analysis in the overall study group. Of these, the Commission 

identified 1,988 career offenders whose records are analyzed 

for this report. 

The Commission separated these 1,988 career offenders 

into the three distinct categories of career offenders discussed 

above: drug trafficking only, violent only, and mixed. To be 

classified as drug trafficking only, the offender’s instant 

offense of conviction had to be classified as drug trafficking, 

and the offender had to have two or more arrests for drug 

trafficking and no arrests for violent offenses. The mixed 

category includes offenders with at least one violent and one 

drug trafficking offense, either as the instant offense of 

conviction or one of the prior arrests. Finally, to be classified 

as violent only, the offender’s instant offense of conviction had 

38
to be classified as violent, and the offender had to have two or 

more arrests for violent offenses and no drug trafficking 

arrests.

The Commission assigned these pathways using the 

standardized coding used to classify each arrest and disposition 

of charges within each arrest and court cycle. Qualifying prior 

arrests51 were classified in a manner that reflected whether they 

were a crime of violence or a drug trafficking offense. All 

felony crimes involving the Bureau of Justice Statistics

categories of violence were included as crimes of violence for 

this analysis.52

 Violent crimes and drug trafficking offenses 

reported as misdemeanors were excluded. Finally, crimes with 

unknown felony/misdemeanor classification were only 

included for those crimes deemed the most serious, and 

therefore likely to be felonies.53 

Results

Career offenders, as a group, tend to recidivate at a 

higher rate than non-career offenders. As set forth in Figure 

18, as measured by the rate of rearrest,

54 almost two-thirds 

(66.2%) of career offenders released between 2004 and 2006 

were rearrested for a new crime or for an alleged violation of 

the conditions of their supervision over the eight-year followup period. By comparison, nearly one-half (48.7%) of noncareer offenders released in 2005 were rearrested for a new 

crime or for an alleged violation of the conditions of their 

supervision over the eight-year follow-up period. 

Figure 18. 

Recidivism of Career Offenders 

Compared to Other Offenders

2015 Cohort from USSC 

Recidivism Study

Overall, career offenders were 

more likely to recidivate than 

non-career offenders.

39
The median time from release to rearrest for career 

offenders was 20 months, meaning that for one-half of the 

offenders who were rearrested, the first rearrest occurred less 

than two years following their initial release from prison or 

placement on probation. Among those who recidivated, the 

median number of rearrest events (events occurring on separate 

days) was two, but 21.6 percent of recidivist offenders were 

rearrested five times or more. For non-career offenders, the 

median time to rearrest was 21 months, and the median number 

of rearrest events was two. 

Lastly, when considering only the “most serious” 

offense committed by those career offenders who were 

rearrested, the most frequent category (i.e., the most serious 

event that was most prevalent) was assault. About one-fourth 

(24.9%) of those rearrested had an assault rearrest as their most 

serious charge over the study period, which was the same for 

non-career offenders. 

When analyzing the recidivism rates for each of the 

career offender pathways as compared to each other and to the 

overall rearrest rates for the larger cohort of offenders released 

in 2005, however, differences become apparent. As 

demonstrated in Figure 19, almost one-half (48.7%) of noncareer offenders released in 2005 were rearrested for a new 

crime or for an alleged violation of the conditions of their 

supervision over the eight-year follow-up period. The 

recidivism rate for drug trafficking only career offenders was 

relatively similar at 54.4 percent. By comparison, however, 

offenders in the mixed and violent only categories were 

rearrested for a new crime or for an alleged violation of the 

conditions of their supervision over the eight-year follow-up 

0.0%

25.0%

50.0%

75.0%

100.0%

1 2 3 4 5 6 7 8

Years After Release

SOURCE: U.S. Sentencing Commission’s 2005 Recidivism Release Cohort Datafile, SUMMARY_UPDT. Of the 25,431 cases analyzed in the Comprehensive Overview, the Commission excluded cases from 

this analysis that were missing information necessary to perform analysis.. For ease of comparison, trend lines for Drug Trafficking, Mixed, and Violent offenders are presented using a weighted 

average in order to present a smooth, consistent line. This was necessary because of the relatively small number of cases in these three groups. Because the data fluctuations are minor relative to the 

pronounced trend in each pathway, the weighted average accurately depicts the trends for the offenders in these three pathways. Statistical testing further revealed that the smoothed trend lines fit 

nearly perfectly to the actual observations in the dataset.

Recidivism Rate

Mixed Career Offenders: 69.4% 

Violent Only Career Offenders: 69.0%

Drug Trafficking Only Career Offenders: 54.4%

Non-Career Offenders Released in 2005: 48.7%

Rearrest Rate After Eight Years

Figure 19. 

Projection of Time to First Rearrest by 

Career Offender Pathway

When looking at the rate of rearrest 

during an eight-year follow-up period, 

drug trafficking only offenders recidivate 

at a rate that is more similar to non-career 

offenders than career offenders in the 

mixed or violent only categories.

40
period at significantly higher rates — over two-thirds of 

offenders in the mixed and violent only categories were 

rearrested during the review period (69.4% and 69.0%,

respectively).

The stark differences in these recidivism rates are 

notable when considering the median age of the different types 

of career offenders at release. Studies, including the 

Commission’s recent recidivism report,55 have repeatedly 

shown that older offenders are at lower risk for reoffending. 

Given this consistent trend, it would be expected that the drug 

trafficking only career offenders, who were the youngest 

among the three categories, would have the highest rate of 

recidivism. As noted above, this was not the case with drug 

trafficking only offenders having the lowest rate of 

recidivism. These contrary findings again demonstrate an 

important difference between the drug trafficking only 

offenders and those career offenders who have committed a

violent offense, and support the Commission’s conclusion that 

drug trafficking only offenders should not be subjected to the 

same recidivist enhancements as the other career offenders. 

37

40

45

0

20

40

60

80

Drug Trafficking Only Mixed Violent Only

Years

SOURCE: U.S. Sentencing Commission’s 2005 Recidivism Release Cohort Datafile, SUMMARY_UPDT. Of the 1,988 cases within the Career Offender analysis, the Commission excluded 

cases from this analysis that were missing information necessary to perform analysis.

Figure 20. 

Median Age at Release for Offenders 

in Each Career Offender Pathway

Contrary to studies demonstrating the

link between age and recidivism, 

offenders in the drug trafficking only

category have the lowest rate of 

rearrest even though they are also the 

youngest among the three categories of 

career offenders.

41
The Commission also observed several other 

differences. First, among those who recidivated, drug 

trafficking only offenders tended to take longer to do so after 

release with a median time to rearrest of 26 months, compared 

to 20 months for the mixed category and only 14 months for 

violent only career offenders. When considering only the 

“most serious” offense committed by those career offenders 

who were rearrested over the study period, the most frequent 

category for the drug trafficking only career offenders was a 

new drug trafficking offense. 

About one-fourth (26.5%) of those drug trafficking only 

career offenders rearrested had a drug trafficking rearrest as 

their most frequent offense over the study period. Offenders in 

the other two pathways who were rearrested were more likely 

to have been rearrested for another violent offense — the most 

frequent offense was robbery (35.3%) for the violent only 

career offenders and assault (28.6%) for the mixed career 

offenders. 

Drug Trafficking Only 

Career Offenders

Mixed 

Career Offenders

Violent Only

Career Offenders

Any Recidivism 54.4% 69.4% 69.0%

Median Time to Recidivism 26 Months 20 Months 14 Months

Median Number of Recidivism Events 2 3 3

Most Serious Post-Release Event (%) Drug Trafficking (26.5%) Assault (28.6%) Robbery (35.3%)

SOURCE: U.S. Sentencing Commission’s 2005 Recidivism Release Cohort Datafile, SUMMARY_UPDT. Of the 1,988 cases within the Career Offender analysis, the Commission excluded cases from this analysis that 

were missing information necessary to perform analysis.

Figure 21. 

Recidivism of Career 

Offenders 

2015 Cohort from USSC 

Recidivism Study

Unlike offenders in the drug 

trafficking only category, 

offenders in the other two 

pathways who were rearrested 

were more likely to have been 

rearrested for another violent 

offense. 

42
Takeaways and Recommendations

As discussed in more detail in the Commission’s recent 

recidivism study,56 the relationship between prior criminal 

history and recidivism has been recognized by the Commission 

since its inception in the mid-1980s. In fact, the Commission 

relied heavily upon these studies assessing the correlation of 

recidivism with past criminal behavior in formulating the 

criminal history scoring system included in the guidelines 

calculation at Chapter Four of the Guidelines Manual.

57 The 

Commission’s most recent recidivism study again confirmed 

that recidivism rates are most closely correlated with total 

criminal history points and, therefore, that Chapter Four’s 

criminal history provisions are working as designed.

58

Despite the continued reliability of the guideline’s 

criminal history score in predicting recidivism, and the impact 

an offender’s criminal history score has on increasing the 

offender’s range of punishment under the guidelines, the 

Commission continues to believe that certain recidivist 

offenders should be punished more severely based on the 

nature of their prior offenses. However, in light of recent 

criticism, as well as sentencing data and recidivism research, a 

more tailored approach to determining who qualifies for career 

offender status is appropriate. 

The Commission’s analysis of career offenders has 

demonstrated some important differences among the three 

distinct pathways to career offender status, particularly when 

comparing those career offenders in the drug trafficking only 

category to those in the violent only category. The existence of 

a violent offense in an offender’s instant offense or prior 

convictions appears to be associated with more serious and 

extensive criminal histories overall. Those offenders tend to 

fall within higher criminal history categories even before 

application of the career offender guideline, and tend to have 

committed more serious prior offenses as demonstrated by an 

analysis of the most serious, common prior offense for each of 

the three groups. The Commission’s analysis also 

demonstrates key differences among the three pathways in 

terms of the rate and nature of their recidivism. 

Despite these differences, the career offender guideline 

currently impacts offenders in the drug trafficking only 

category to a significantly greater extent than those in the 

Mixed Offender Pathway 

As reflected throughout this section, the offenders in the mixed pathway often align in between the two other career offender pathways. 

In some instances, such as the sentences relative to the guideline range and the rate and extent of departures, the mixed offenders look 

more like offenders in the drug trafficking only pathway. On the other hand, when considering the nature and extent of their criminal 

history and their rate of recidivism, the mixed offenders are more similar to the offenders in the violent only pathway. 

While the recommendations set forth in this section focus on offenders in the drug trafficking only pathway, the sentencing outcomes for 

offenders in the mixed pathway may also support Congressional consideration of a more graduated approach for these career offenders. 

43
violent only and mixed categories. Drug trafficking only 

offenders receive increased final offense levels and/or criminal 

history categories as a result of the application of the career 

offender guideline at a higher rate than Drug trafficking only 

career offenders in the other two categories. This can largely 

be attributed to the fact that federal drug trafficking offenders 

often face much higher statutory maximum penalties than those 

offenders convicted of a violent federal offense. 

Recent sentencing data also supports a policy decision 

to reserve career offender penalties for those offenders who 

have committed at least one “crime of violence.” Despite 

relatively similar average guideline minimums, courts 

generally sentence violent only career offenders most severely 

among the three pathways. Violent only career offenders were 

significantly more likely to receive a sentence within the range 

(47.5%), as compared to offenders in the mixed and drug 

trafficking only pathways (23.5% and 22.5%, respectively). 

Additionally, violent only offenders had the smallest average 

extent of reduction. Conversely, courts were most likely to 

depart or vary when sentencing offenders in the drug 

trafficking only pathway, often at the request of the 

government. This is evidenced by both the rate of below range 

sentences, including the nearly five-fold increase in other 

government sponsored below range sentences over the past ten 

years, and the extent of reduction in cases involving a drug 

trafficking only career offender. Notably, the average sentence 

(134 months) for drug trafficking only career offenders is 

nearly identical to the average guideline minimum (131 

months) that would have applied to those offenders through the 

normal operation of the guidelines. 

In light of this data, the Commission concluded that 

the significant enhancements provided by the career 

offender directive, and the related career offender 

guideline, are most appropriately reserved for those 

offenders who have committed a felony “crime of violence.” 

The normal operation of Chapter Four’s criminal history 

provisions adequately accounts for likelihood of recidivism 

and future criminal behavior of those offenders who are 

currently deemed to be career offenders, but who have not 

committed an instant or prior offense that is a 

“crime of violence.” 

The Commission recommends that Congress amend 

the career offender directive at 28 U.S.C. § 994(h) to more 

effectively differentiate between career offenders with 

different types of criminal records by requiring that an 

offender have committed a felony “crime of violence” 

either as the instant offense of conviction or as one of the 

required predicate convictions.

44
The Commission recommends that Congress revise section 994(h) to provide as follows:

(h) The Commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term

authorized for categories of defendants in which the defendant is eighteen years old or older and—

(1) has been convicted of a felony that is a crime of violence, and has previously been convicted of two or more prior

felonies, each of which is—

(A) a crime of violence; or

(B) a controlled substance offense; or

(2) has been convicted of a felony that is a controlled substance offense, and has previously been convicted of—

(A) a felony that is a crime of violence; and

(B) a second felony offense that is—

(i) a crime of violence; or

(ii) a controlled substance offense.

(3) As used in this subsection—

(A) the term “controlled substance offense” means 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.

(B) the term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term

exceeding one year, that—

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another;

or

(ii) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson,

extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive

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

STATUTORY PROPOSAL

45
46
SECTION V 

RECOMMENDATION: 

CONGRESS SHOULD ENACT A UNIFORM DEFINITION OF “CRIME OF VIOLENCE”

FOR FEDERAL CRIMINAL LAW APPLICATIONS

47
Even before the Sentencing Reform Act era, the federal 

government sought to ensure that repeat violent offenders were 

adequately punished when convicted and sentenced in the 

federal system. Since the first guidelines were promulgated in

1987, the Commission has joined in this goal. Despite this 

shared purpose, it has proven difficult to formulate an 

appropriate and practical definition of what prior offenses 

should be classified as “violent” for purposes of recidivist 

provisions. The different definitions and tests (e.g., the 

“categorical approach”) that currently exist have resulted in 

unnecessary confusion and inefficient use of court resources. 

After years of consultation with stakeholders, the 

Commission recommends the universal adoption of a single 

definition of qualifying violent offenses for all federal 

recidivist sentencing purposes. As detailed in this section, the 

Commission recently revised the “crime of violence” definition 

at §4B1.2 of the guidelines. The recently revised guideline 

definition consists of an “elements clause,” which includes any 

offense under federal or state law, punishable by imprisonment 

for a term exceeding one year, and that has as an element the 

use, or attempted use, or threatened use of physical force 

against the person of another. It also includes a tailored list of 

enumerated offenses, some of which are defined in the 

guideline. The revised definition does not include a catchall 

“residual clause.”59

This new definition can serve as a model for a uniform 

definition of crime of violence for all federal criminal law 

purposes. Adoption of this proposal will promote an important 

goal of Congress: that those offenders already found by prior 

sentencing courts to have committed serious, violent offenses 

be justly punished for their new federal crime. It will also 

maximize the use of judicial and prosecutorial resources, 

reduce confusion and potential unfairness, and better focus on 

those offenders with the most serious violent criminal 

backgrounds. 

Federal Statutes Presently Contain Multiple 

Definitions

Federal statutes and the sentencing guidelines currently 

contain a patchwork of definitions attempting to make clear 

which prior offenses are crimes of violence or violent felonies 

for purposes of recidivist enhancements.60 

The “crime of violence” definition most widely used 

throughout Title 18 of the United States Code had its origin in 

the Comprehensive Crime Control Act of 1984 (“CCA”), 

which repealed a previous definition of the term “crime of 

violence.” Legislative history to the CCA observed that, while 

the term “crime of violence” was “occasionally used in law, it 

is not defined, and no body of case law has arisen with respect 

to it.”61 The CCA definition focused on the use of force, and 

was codified at 18 U.S.C. § 16: 

The term ‘crime of violence’ means — 

(a) an offense that has as an element the use,

attempted use, or threatened use of physical

force against the person or property of another,

or

(b) any other offense that is a felony and that, by

its nature, involves a substantial risk that

physical force against the person or property of

48
another may be used in the course of 

committing the offense.62

Various statutes, both criminal and civil, incorporate 

the definition of crime of violence found in section 16. For 

example, 18 U.S.C. § 1956 (Money Laundering) lists “crime of 

violence” as one of the “specified unlawful activities” that may 

form the basis for a money laundering offense. The same term 

also appears in 8 U.S.C. § 1101(a)(43)(F) (listing “crime of 

violence” as a form of aggravated felony but excluding “purely 

political” offenses from the definition). In 42 U.S.C. 

§ 13981(d)(2), an act of violence not resulting in criminal

charges may form the basis of a cause of action for gendermotivated crimes of violence if the criminal act meets section

16’s definition.

Other federal statutes use section 16 as a basis for 

defining crime of violence, but nonetheless alter the definition 

in some way. For instance, 18 U.S.C. § 924(c) prohibits the 

possession or use of a firearm during and in relation to a crime 

of violence, which is defined in section 16, but only so long as 

the offense is a felony. Other statutes use section 16’s 

definition but also add a list of enumerated offenses. For 

instance, in the Bail Reform Act, pretrial detention is 

authorized for persons charged with a crime of violence, which 

includes not only crimes meeting section 16’s definition, but 

also sexual abuse crimes in Chapter 109(a) (18 U.S.C. §§ 

2241-2248), sexual exploitation of children under Chapter 110, 

and transportation for illegal sexual activity in Chapter 117. 

In the Armed Career Criminal Act, Congress made no 

reference to section 16. Instead, it imposed a fifteen-year

mandatory minimum sentence on felon in possession offenders 

who had previously sustained three or more convictions for 

either a “violent felony” or a “drug trafficking offense.” 

Congress defined violent felony with a list, including a felony 

offense that: 

(i) has as an element the use, attempted use, or

threatened use of physical force against the

person of another; or (ii) is burglary, arson, or

extortion, involves use of explosives, or

otherwise involves conduct that presents a

serious potential risk of physical injury to

another.

This definition does not include crimes involving force against 

property, differentiating it from section 16. 

The Need to Reform Recidivist Enhancement

Definitions

Stakeholder Views 

Stakeholders have suggested a variety of ways in which 

the Commission could improve the administration of recidivist 

enhancements, both working on its own and through 

recommendations to Congress. While the specifics of these 

suggestions vary, there has been virtual consensus that a single 

definition applicable to the term “crime of violence” in the

guidelines and statutes, as well as the term “violent felony” in

the Armed Career Criminal Act, would be a major step towards 

simplification of the current system. 

Several courts have noted the problems caused by 

multiple definitions of the same (or similar) terms. For 

49
example, the Ninth Circuit has pointed out that there are at 

least four different definitions of the term “crime of violence” 

in the guidelines and statutes.63 Nor does using slightly 

different terms relieve the potential for confusion. The 

Commission drafted the (pre-2016) definition of “crime of 

violence” largely to parallel the statutory definition of “violent 

felony” used by the Armed Career Criminal Act. Yet courts 

have grappled with the fact that those two terms continued to 

mean slightly different things due to subsequent judicial 

interpretations of the statute and guideline.64

These judges have called for the Commission to address 

these issues, even if it cannot fully resolve them on its own. 

For example, Judge Sutton of the Sixth Circuit has urged the 

Commission to “lead by example,”65 perhaps by amending the 

definitions of the relevant terms in the guidelines to alleviate 

the complexity, burden, and perceived disparities caused by 

varying definitions. Judge Tallman of the Ninth Circuit has 

recommended that the Commission consider “clarifying the 

guidelines or seeking action from Congress to clarify and 

address recidivism enhancements.”66 

The Commission heard similar comments at its October 

2014 roundtable discussion on the topic of amending the 

definition of crime of violence. Participants represented a wide 

spectrum of backgrounds and views, from the federal judiciary, 

the Department of Justice, the federal criminal defense bar, 

probation officers, and academics, as well as those experienced 

in applying the categorical approach within the context of 

immigration law.

Roundtable participants discussed how to harmonize 

the definitions of crime of violence used throughout the 

guidelines and whether those definitions should reference a 

certain statutory definition (such as the definition in 18 U.S.C. 

§ 16) or should be structured differently. Participants debated

such questions as: whether the definition of crime of violence

should continue to be elements-based, or whether there are

benefits to a conduct-based inquiry; the purpose and function

of a residual clause; whether reckless conduct should ever

qualify as a crime of violence; which enumerated offenses, if

any, should be included in the crime of violence definition; and

whether additional documents in the record should be deemed

reliable sources under the modified categorical approach.

While stakeholders differed on the preferred content 

and structure of the definition, the primary theme that emerged

from the roundtable discussion was the desire to have one 

definition of “crime of violence” that would apply throughout 

criminal law. Additionally, all participants agreed that changes

to the definition should be accompanied by recommendations 

to Congress for legislative reform.

Having Different Definitions Is Further Complicated by the 

Categorical Approach 

There is widespread agreement that multiple definitions 

of the same or similar terms has made it unnecessarily complex

to apply sentencing enhancements that rely on them. Applying 

the varying definitions is further complicated by the application 

principles of the “categorical approach” mandated by the 

Supreme Court in Taylor v. United States.

67 The scope and 

requirements of the categorical approach have resulted in 

significant litigation and over a dozen Supreme Court opinions 

over the last 26 years, including an opinion as recently as this 

term.68

 

50
Under the categorical approach, courts must look to the 

statutory elements of an offense, rather than the defendant’s 

conduct, when determining the nature of a prior conviction. 

This form of analysis permits a federal sentencing court to 

examine only the statute under which the defendant sustained a 

conviction (and, in certain cases, judicial documents 

surrounding that conviction) in determining whether the prior 

conviction fits within a federal predicate definition. 

Federal probation officers, who are charged with 

determining whether prior convictions qualify as federal 

predicates in preparing presentence reports for the court, have 

expressed particular frustration with the categorical approach, 

which requires a legalistic assessment of a vast universe of 

potential statutes of conviction that are as varied as the states 

that enacted them. The categorical approach also requires, in 

some cases, that sentencing documents related to prior 

convictions be obtained from the original sentencing court, a 

process that is particularly difficult for older convictions or 

those arising from certain jurisdictions. 

Many judges and practitioners, including the 

Department of Justice, have also criticized the categorical 

approach as leading to unjustifiably disparate results based on 

the availability of records documenting the particularities of the 

prior statute of conviction. Judges have long criticized the socalled “residual clause” found in several definitions of violent 

offenses as particularly difficult to apply using the categorical 

approach. A similar concern has arisen with respect to 

determining the “generic” meaning of offenses, which can 

differ in each recidivist provision. 

Impact of Johnson v. United States 

Retaining different definitions of the term “crime of 

violence” is further complicated by the Supreme Court’s recent 

decision in Johnson v. United States.

69 In that case, the Court 

considered the constitutionality of the statutory definition of 

“violent felony” in the Armed Career Criminal Act.70 As noted 

above, that provision defined the term “violent felony” to 

include any felony offense that “otherwise involves conduct 

that presents a serious potential risk of physical injury to 

another” — commonly referred to as the “residual clause.” In 

an 8-1 decision, the Court concluded that using the “residual 

clause” to classify an offense as a “violent felony” violates due 

process because the clause was unconstitutionally vague.71 

While the Supreme Court in Johnson did not expressly 

consider or address other federal recidivist provisions, courts 

have begun considering whether residual clauses found in other 

federal recidivist statutes are also unconstitutional based on the 

Court’s reasoning in Johnson. For example, since Johnson was 

decided, at least two circuits have held that the residual clause 

of section 16 itself is similarly unconstitutional.72 

Additionally, there is also ongoing litigation regarding the 

impact of the Johnson decision on the guidelines, an issue the 

Supreme Court is now slated to consider during its next term.73 

As a result, if Congress itself doesn’t act to make the definition 

of the term “crime of violence” clear and uniform, it is likely 

that courts will be required to do so on their own. Such a 

scenario risks continued inconsistency and complexity, and 

could lead to a definition that does not fully reflect the will of 

Congress. 

51
The Commission’s Crime of Violence Definition

Throughout its multi-year study, the Commission 

devoted considerable resources to formulating a definition that 

advanced the goals of judicial efficiency, targeting of 

recidivism risk, and just punishment. Moved in part by the 

longstanding policy concerns of many stakeholders about the 

career offender guideline, together with confusion in the lower 

courts about the applicability of Johnson to the sentencing 

guidelines, the Commission recently voted to amend the 

definition of “crime of violence” in the career offender 

guideline, and submitted a final version to Congress in January 

2016.74 

Having fully considered the views of outside groups 

and its own assessment of the issues, the Commission 

ultimately concluded that the most appropriate definition was 

one that hewed closely to the definition already found in the 

career offender guideline, while eliminating the residual clause. 

Accordingly, the Commission’s definition continues to include 

prior offenses that include as an element the use, threatened 

use, or attempted use of physical force against the person, and 

identifies a short list of enumerated offenses targeted to reach 

the most serious predicate offenses without regard to whether it 

includes a use-of-force element. 

With its adoption of the January 2016 career offender 

amendment, the Commission sought to achieve many of the

goals advanced by judges and other stakeholders with respect 

to the guidelines. The Commission now recommends that 

Congress also take action to alleviate lingering inconsistency in 

other federal recidivist statutes. In this regard, the 

Commission’s definition provides a relatively straightforward 

framework that Congress could adopt for these other recidivist 

enhancements. 

Residual Clause 

The Commission’s revised definition of crime of

violence no longer includes a “residual clause.” Prior to the 

amendment, the term “crime of violence” in §4B1.2 included 

any offense that “otherwise involves conduct that presents a 

serious potential risk of physical injury to another.” In

Johnson v. United States, the Supreme Court considered an 

identical residual clause relating to the statutory definition of

“violent felony” in the Armed Career Criminal Act.75 In that 

decision, the Court held that using the “residual clause” to

classify an offense as a “violent felony” violates due process

because the clause was unconstitutionally vague. While the 

Supreme Court in Johnson did not consider or address the 

sentencing guidelines, significant litigation has ensued 

regarding whether the Supreme Court’s decision in Johnson

should also apply to the guidelines.76 

The Commission determined, as a matter of policy, that 

the residual clause at §4B1.2 implicated many of the same 

concerns cited by the Supreme Court in Johnson and has given 

rise to significant litigation both before and after Johnson. 

Removing the residual clause alleviates the considerable 

application difficulties associated with that clause, as expressed

by judges, probation officers, and litigants. Furthermore, 

removing the clause will alleviate some of the ongoing

litigation and uncertainty resulting from the Johnson decision. 

52
List of Enumerated Offenses 

With the deletion of the residual clause under 

subsection (a)(2), there are two remaining components of the 

“crime of violence” definition — the “elements clause” and the 

“enumerated offense clause.” The “elements clause” under 

subsection (a)(1) remains unchanged. Thus, any offense under 

federal or state law, punishable by imprisonment for a term 

exceeding one year, qualifies as a “crime of violence” if it has 

as an element the use, attempted use, or threatened use of 

physical force against the person of another. The “enumerated 

offense clause” lists specific offenses that qualify as crimes of 

violence. In applying this clause, courts compare the elements 

of the prior offense of conviction with the elements of the 

enumerated offense in its “generic, contemporary definition.” 

While most of the offenses on the enumerated list under 

§4B1.2(a)(2) remain the same, the amendment did revise the

list in a number of ways to focus on the most dangerous repeat

offenders.

The revised list is based on the Commission’s 

consideration of the testimony received at a public hearing, a 

review of the extensive public comment, and an examination of 

the data relating to the recidivism rates and the risk of violence 

in these cases. As before, an enumerated offense qualifies as a 

“crime of violence” regardless of whether the prior offense 

expressly has as an element the use, attempted use, or 

threatened use of physical force against the person of another. 

Conversely, a prior offense need not be listed in subsection 

(a)(2) to qualify as a crime of violence if the offense otherwise 

qualifies under subsection (a)(1) because that offense has as an 

element the use, attempted use, or threatened use of physical 

force against the person of another. 

As revised, the enumerated offenses in the 

Commission’s definition include murder, voluntary 

manslaughter, kidnapping, aggravated assault, a forcible sex 

offense, robbery, arson, extortion, or the use or unlawful 

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

explosive material as defined in 18 U.S.C. § 841(c).77 These 

offenses, in conjunction with the “elements clause,” target the 

most serious predicate offenses, ensuring that certain high-risk 

convictions (often — as with offenses covered by the former 

residual clause — inherently involving some level of violent or 

dangerous behavior against the person of another) will be 

adequately punished. 

This list captures each of the offenses currently 

enumerated in the Armed Career Criminal Act,78 with one 

exception. The Commission’s definition deletes “burglary of a 

dwelling” from the list of enumerated offenses. In 

implementing this change, the Commission considered that (1) 

burglary offenses rarely result in physical violence, (2) 

“burglary of a dwelling” is rarely the instant offense of 

conviction or the determinative triggering predicate for 

purposes of applying the career offender guideline, and (3) 

historically, career offenders have rarely been rearrested for a 

burglary offense after release. 

First, several recent studies demonstrate that most 

burglaries rarely involve physical violence. For example, the 

National Crime Victimization Survey, Victimization During 

Household Burglary (Sept. 2010) prepared by the Bureau of 

Justice Statistics found that a household member experienced 

some form of violent victimization in 7.0 percent of all 

household burglaries from 2003 to 2007).79 Similarly, other 

53
researchers have concluded that 7.6 percent of burglaries 

between 1998 and 2007 resulted in actual violence or threats of 

violence, while actual physical injury was reported in only 2.7 

percent of all burglaries.

80 Second, based upon an analysis of 

offenders sentenced in fiscal year 2014, the Commission 

estimates that removing “burglary of a dwelling” as an 

enumerated offense will not impact most offenders sentenced 

pursuant to the most commonly applied recidivist provisions. 

The Commission estimates that the overall proportion of 

offenders who qualify as a career offender will be reduced by

about five percentage points, while an estimated 15 percent of 

offenders currently sentenced pursuant to ACCA would no 

longer qualify. This is consistent with the Commission’s 

analysis of recidivism rates for career offenders released during 

calendar years 2004 through 2006, which indicates that about 

five percent of such offenders were rearrested for a burglary 

offense during the eight years after their release.

In reaching this conclusion, the Commission also 

considered that courts have struggled with identifying a 

uniform contemporary, generic definition of “burglary of 

dwelling.” In particular, circuits have disagreed regarding 

whether the requirement in Taylor v. United States, 495 U.S. 

575, 598 (1990), that the burglary be of a “building or other 

structure” applies in addition to the guidelines’ requirement 

that the burglary be of a “dwelling.”81 

Although “burglary of a dwelling” is deleted as an 

enumerated offense, courts will remain free to depart upward to 

address a case in which the instant offense or a prior felony 

conviction was any burglary offense involving violence that 

did not otherwise qualify as a “crime of violence.”82 

Enumerated Offense Definitions

The Commission also added specific definitions for the 

enumerated offenses of forcible sex offense and extortion. 

While definitions are provided for these select enumerated 

offenses, the Commission’s crime of violence definition 

continues to rely on long-existing case law for purposes of 

defining the remaining enumerated offenses. The Commission 

determined that adding several new definitions could result in 

new litigation, and that it was best not to disturb the case law 

that has developed over the years. 

As defined by the Commission, “forcible sex offense” 

includes offenses where consent to the conduct is not given or 

is not legally valid, such as where consent to the conduct is 

involuntary, incompetent, or coerced. Following a similar 

approach to that adopted by Congress in the referenced 

statutes, the Commission’s definition provides that the offenses 

of sexual abuse of a minor and statutory rape are included only 

if the sexual abuse of a minor or statutory rape was (A) an 

offense described in 18 U.S.C. § 2241(c) or (B) an offense 

under state law that would have been an offense under section 

2241(c) if the offense had occurred within the special maritime 

and territorial jurisdiction of the United States. Consistent with 

the definition in §2L1.2 (Unlawfully Entering or Remaining in 

the United States), this addition reflects the Commission’s 

determination that certain forcible sex offenses that do not 

expressly include as an element the use, attempted use, or 

threatened use of physical force against the person of another 

should nevertheless constitute “crimes of violence.” 

“Extortion” is defined as “obtaining something of value 

from another by the wrongful use of (i) force, (ii) fear of 

54
physical injury, or (iii) threat of physical injury.” Under

current case law, courts generally define 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.

83

Consistent with the Commission’s overall goal of focusing the 

career offender and related enhancements on the most

dangerous offenders, the amendment narrows the generic 

definition of extortion by limiting it to those offenses having an 

element of force or an element of fear or threats “of physical

injury,” as opposed to non-violent threats of reputational 

injury, such as a threat to reveal embarrassing personal

information. 

Takeaways and Recommendations

There is no shortage of views on the appropriate scope 

of recidivist enhancements, particularly those seeking to ensure 

that repeat violent offenders are adequately punished. Both 

Congress and the Commission have shared in this goal, 

repeatedly adopting new definitions and revising existing ones 

to adapt to perceived challenges. Through outreach and 

research in recent years, the Commission has concluded

that a single definition applicable to the term “crime of

violence” in the guidelines and other federal recidivist

provisions is necessary to address increasing complexity, 

and to avoid unnecessary confusion and inefficient use of 

court resources. Recognizing that the guideline’s criminal 

history rules already take into account an individual’s 

increased culpability and likelihood of recidivism, this 

uniform definition should be tailored to include only the 

most serious prior offenses, focusing on those offenses that 

inherently involve some level of violent or dangerous 

behavior against the person of another. Congress should 

avoid an over-inclusive definition given the substantially 

enhanced penalties provided by recidivist provisions. 

Throughout its multi-year study, the Commission 

devoted considerable resources to formulating a definition that 

advanced the goals of judicial efficiency, targeting of 

recidivism risk, and just punishment. By targeting the most 

serious predicate offenses, the Commission’s definition 

contributes to a more efficient use of prison resources while 

ensuring that certain high-risk offenders will be adequately 

punished. The Commission, therefore, recommends that 

Congress use the Commission’s recently adopted definition 

as a basis for a new statutory definition for the term 

“violent felony” in the Armed Career Criminal Act (18 

U.S.C. § 924(e)), and the definitions of “crime of violence” 

in 18 U.S.C. § 16 and 18 U.S.C. § 924(c). 

RECOMMENDATIONS

 Congress should adopt a single definition applicable to the term “crime of violence” in the guidelines and other federal

recidivist provisions to address increasing complexity and to avoid unnecessary confusion and inefficient use of resources

on the part of both litigants and courts.

 Congress should use the Commission’s definition as a basis for the new statutory definition, including amending the

term “violent felony” in the Armed Career Criminal Act (18 U.S.C. § 924(e)) and the definitions of “crime of violence” in

18 U.S.C. § 16 and 18 U.S.C. § 924(c).

55
56
ENDNOTES

57
1

 Title II, Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473 (1984). 

2

 18 U.S.C. § 3553(a)(1). 

3

 See id.

4

 See 28 U.S.C. § 994(d)(10).

5

 The United States Sentencing Commission (“Commission”) is an independent agency in the judicial branch of government. Established by the Sentencing 

Reform Act of 1984, its principal purposes are (1) to establish sentencing policies and practices for the federal courts, including guidelines regarding the 

appropriate form and severity of punishment for offenders convicted of federal crimes; (2) to advise and assist Congress, the federal judiciary, and the executive 

branch in the development of effective and efficient crime policy; and (3) to collect, analyze, research, and distribute a broad array of information on federal 

crime and sentencing issues. See 28 U.S.C. §§ 995(a)(14), (15), (20). 

6

 See USSG Ch.4, Pt.A, intro. comment. (“A defendant’s record of past criminal conduct is directly relevant to those purposes. ... The specific factors included 

in §4A1.1 and §4A1.3 are consistent with the extant empirical research assessing correlates of recidivism and patterns of career criminal behavior.”).

7

 The provision applies to federal offenders convicted of a “crime of violence” or a “controlled substance offense” if the offender has prior convictions for two or 

more “crimes of violence” or “controlled substance offenses.” See 28 U.S.C. § 994(h).

8

 As discussed in more detail in Part V of this report, the “categorical approach” is the method endorsed by the Supreme Court for determining whether a prior 

conviction meets the relevant definition of a recidivist enhancement. Under this approach, courts are limited to examining the statutory definition of the prior

offense, and not the underlying conduct, to determine whether it substantially corresponds to the generic crime covered by the recidivist enhancement.

9

 The Commission maintains a comprehensive, computerized data collection system and acts as the clearinghouse of federal sentencing information pursuant to 

28 U.S.C. §§ 995(a)(14), (15). The Commission relies on this database for its ongoing monitoring and evaluation of the guidelines, many of its reports and 

research projects, and for responding to hundreds of data requests received from Congress and other criminal justice entities each year. Pursuant to 28 U.S.C. 

§ 994(w), within 30 days of entry of judgment in every felony and class A misdemeanor case, the Commission receives: (1) the judgment and commitment

order; (2) the statement of reasons form; (3) the plea agreement, if any; (4) the indictment or other charging information; and (5) the presentence report (unless

waived by the sentencing court). For each such case, the Commission routinely collects hundreds of pieces of information, including defendant demographics,

statute(s) of conviction, sentencing guideline application(s), and sentence(s) imposed.

10 See U.S. SENTENCING COMM’N, Quick Facts: Career Offenders (Nov. 2015), available at http://www.ussc.gov/sites/default/files/pdf/research-andpublications/quick-facts/Quick_Facts_Career_Offender_FY14.pdf. 

11 For example, the Commission chose to delete the enumerated offense of “burglary” after reviewing a number of published studies indicating that burglaries 

typically present a low risk of violence against persons. See BUREAU OF JUSTICE STATISTICS, National Crime Victimization Survey, Victimization During 

Household Burglary (Sept. 2010) (finding that a household member experienced some form of violent victimization in 7% of all household burglaries from 2003 

to 2007); RICHARD S. CULP, ET AL., Is Burglary a Crime of Violence? An Analysis of National Data 1998-2007, at 29 (2015), available at 

https://www.ncjrs.gov/pdffiles1/nij/grants/248651.pdf (concluding that 7.6% of burglaries between 1998 and 2007 resulted in actual violence or threats of 

violence, while actual physical injury was reported in only 2.7% of all burglaries); see also U.S. DEP’T OF JUSTICE, FED. BUREAU OF INVESTIGATION, UNIFORM

CRIME REPORT, CRIME IN THE UNITED STATES (2014), available at https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2014/crime-in-the-u.s.-2014/offensesknown-to-law-enforcement/main (classifying burglary as a “property crime” rather than a “violent crime”).

58
12 See S. Rep. No. 98–225, at 175 (1983) reprinted in 1984 U.S.C.C.A.N. 3182.

13 Id. 

14 S. 668, 98th Cong. (1983).

15 See Pub. L. 98–473, Title II, § 1001(a), 98 Stat. 2316 (1984).

16 28 U.S.C. § 994(h).

17 18 U.S.C. § 3553(a) provides that in imposing a sentence, the court shall consider ... (2) the need for the sentence imposed – (A) to reflect the seriousness of 

the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect 

the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other 

correctional treatment in the most effective manner.

18 See Mistretta v. United States, 488 U.S. 361, 377 (1989).

19 520 U.S. 751 (1997). 

20 See USSG App. C, amend. 506 (effective Nov. 1, 1994). 

21 LaBonte, 520 U.S. at 751.

22 Id. at 762. 

23 Id. at 757 (quoting Mistretta v. United States, 488 U.S. 361 (1989)). 

24 Id. at 761 n.5. 

25 Id. at 761. 

26 This revised commentary was added in 1995 in response to cases in a number of circuits considering whether the Commission’s authority to promulgate the 

career offender guideline derived only from § 994(h), or also from additional sections of the Commission’s organic statute conferring broader authority. Some

circuits had held that the Commission’s decision to add inchoate offenses to the list of offenses that may serve as career offender predicates was invalid, because 

inchoate offenses were not mentioned in § 994(h), while other circuits rejected that reasoning and held that the Commission’s authority derived from other parts 

of its organic statute. See USSG App. C, amend 528 (effective Nov. 1, 1995).

27 Id. 

28 For purposes of the guideline, “Offense Statutory Maximum” refers to the maximum term of imprisonment authorized for the offense of conviction that is a 

crime of violence or controlled substance offense, including any increase in that maximum term under a sentencing enhancement provision that applies because 

of the defendant’s prior criminal record (such sentencing enhancement provisions are contained, for example, in 21 U.S.C. § 841(b)(1)(A), (B), (C), and (D)).

29 For further discussion of the January 2016 amendment, see infra Pt. V. 

30 Appendix B of this report discusses the procedures employed by the Commission in collecting information used for the analysis of fiscal year 2014 data in this 

section and the “Current Sentencing” analysis in Part IV of this report. 

59
31 The “Other” category includes 29 other primary sentencing guidelines, including, for example, §2A2.2 (Aggravated Assault) (1.6%; n=36), §2A1.1 (First 

Degree Murder) (0.8%; n=17), §2A2.4 (Obstructing or Impeding Officers) ((0.4%; n=8), §2A2.1 (Assault with Intent to Commit Murder; Attempted Murder) 

(0.4%; n=8), §2B3.2 (Extortion by Force or Threat of Injury or Serious Damage) (0.1%; n=3), and §2A4.1 (Kidnapping, Abduction, Unlawful Restraint) (0.1%; 

n=2). In addition, there are 18 offenders (0.8%) who were only convicted of 18 U.S.C. § 924(c), and thus had no primary sentencing guideline. 

32 See supra, Figure 3.

33 In fiscal year 2014, 15% of these 254 offenders received a within range sentence, 27.6% received a government sponsored below range sentence based on 

substantial assistance, 20.5% received an other government sponsored below range sentence, 36.2% received a non-government sponsored below range sentence, 

and 0.8% received an above range sentence. 

34 See 18 U.S.C. § 3553(e); USSG §5K1.1. In fiscal year 2014, these offenders received an average reduction in their sentence of 47.6 percent.

35 Offenders who received non-government sponsored below range sentences in fiscal year 2014 received an average reduction in their sentence of 37.0 percent.

36 Of the 210,567 offenders in the custody of the Federal Bureau of Prisons on December 27, 2014, 185,644 offenders were serving a sentence for a federal 

conviction, while the other 24,923 offenders in BOP custody are pre-trial offenders, offenders sentenced in the courts of the District of Columbia, or military 

offenders. Of the 185,644 offenders, Commission records could be matched to 178,911 of those offenders and were used for this analysis. 

37 These offenders were also included in the more in-depth recidivism study recently released by the Commission. See U.S. SENTENCING COMM’N, RECIDIVISM 

AMONG FEDERAL OFFENDERS: A COMPREHENSIVE OVERVIEW (March 2016), available at http://www.ussc.gov/research-and-publications/researchpublications/2016/recidivism-among-federal-offenders-comprehensive-overview [hereinafter 2016 RECIDIVISM OVERVIEW]. 

38 See supra note 30 for discussion of the data collection methods used for the analysis in this section.

39 For purpose of this analysis, a criminal history event is a sentencing summarized in the presentence report that included complete information on arrest date, 

jurisdiction, and the offense of conviction. A single criminal history event could be comprised of any number of individual offenses.

40 The independent research organization NORC at the University of Chicago distilled the unique state-specific offenses from RAP sheets from 25,000 criminal 

justice agencies nationwide into 100 standardized offense codes that describe offenses in a common format that allows comparison of offense types and severity 

across jurisdictions. 

41 For purposes of this analysis, violent prior offenses include those offenses classified as: murder, unspecified manslaughter, non-negligent manslaughter, 

kidnapping, rape, fondling, other/unspecified sexual assault, armed robbery, unspecified robbery, unarmed robbery, sodomy, aggravated assault, assaulting a 

police officer, simple assault, unspecified assault, intimidation, blackmail/extortion, hit and run with bodily injury, child abuse, other violent offenses, arson, and 

rioting. 

42 See supra Pt. III, Offense Characteristics (examining the primary Chapter Two guideline for career offenders in fiscal year 2014). As noted in that section, 

excluding those sentenced for a drug trafficking offense, career offenders were sentenced under USSG §§2A1.1 (First Degree Murder), 2A2.1 (Assault with 

Intent to Commit Murder; Attempted Murder), 2A2.2 (Aggravated Assault), 2A3.4 (Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact), 

2A4.1 (Kidnapping, Abduction, Unlawful Restraint), 2A6.1 (Threatening or Harassing Communications; Hoaxes; False Liens), 2B3.1 (Robbery), 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), 2K1.4 (Arson; Property Damage by Use of Explosives), 2K2.1 (Unlawful Receipt, Possession, or Transportation of 

Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition), and 2P1.1 (Escape, Instigating or Assisting Escape). 

60
43 Of the 457 career offenders in the sample, eight were excluded because their prior offenses were not defined as a violent offense for this analysis. 

44 See 21 U.S.C. § 841(b).

45 Pursuant to 21 U.S.C. § 841(b), offenders face statutory maximum penalties of 1, 5, 10, 20, 30, or 40 years, or life imprisonment depending upon the type and 

quantity of controlled substance, as well as whether the offender has a prior conviction for a felony drug offense. 

46 Of the offenders in the drug trafficking category for whom both the final offense level and criminal history category were increased by the career offender 

guideline, 29.0 percent received a departure under USSG §5K1.1, 19.7 percent received other government sponsored departures, and 35.5 percent received a nongovernment sponsored below range sentence.

47 See 2016 RECIDIVISM OVERVIEW, supra note 37.

48 See id. at App. B. 

49 Appendix C of this report includes a discussion of the procedures employed by the Commission in collecting information used for the recidivism analysis in 

this section. Appendix C largely mirrors Appendix B of the Commission’s 2016 RECIDIVISM OVERVIEW. 

50 After collecting RAP sheet records on study group offenders, the Commission contracted with NORC to consolidate all records on each offender, organize the 

records chronologically, and remove duplicative or extraneous material. Minor traffic offenses (e.g., speeding) were removed from the analysis, but serious 

traffic-related offenses (e.g., driving while intoxicated) were not removed from the analysis. Following these preliminary process steps, NORC researched state 

and federal criminal codes and repository data definitions to assign each unique state offense and disposition description to a single uniform description. Using 

research on each repository, NORC created separate offense “crosswalks” for every state and the District of Columbia, as well as a separate crosswalk for federal 

repository records. These crosswalks translate any given jurisdiction’s arrest and court records into standardized arrest and court codes. Through this 

standardization, all records, regardless of originating source, were brought into a common framework. See App. C. 

51 Arrests are used in lieu of convictions due to recent Government Accountability Office (USGAO) findings regarding the limitations of state reporting on prior 

convictions. See USGAO, Criminal History Records: Additional Actions Could Enhance the Completeness of Records Used for Employment-Related 

Background Checks (2015), available at http://www.gao.gov/assets/670/668505.pdf. According to this report, only twenty states had criminal history records 

reporting disposition at a rate of more than 75 percent of their arrest records. 

52 These include homicide, kidnapping, sexual assault, robbery, assault, blackmail/extortion, child abuse, arson, and rioting. Also included were a small number 

of “other” violent offenses with limited RAP sheet information which allowed classification as violent but did not allow more refined classification. 

53 All Homicides (excepting Vehicular and Negligent Manslaughter), Kidnapping, Sexual Assault, Robbery, and Aggravated/Felony Assault.

54 Rearrest is one of the three common measures of recidivism. See 2016 RECIDIVISM OVERVIEW, supra note 37, at 8. Rearrest classifies a person as a recidivist 

if he or she has been arrested for a new crime after being released into the community directly on probation or after serving a term of imprisonment. Rearrest 

also includes arrests for alleged violations of supervised release, probation, or state parole. The number of rearrests in the Commission’s analysis is based on the 

number of unique arrest dates, regardless of the number of individual charges arising from a single arrest event. Thus, if an offender was arrested on a single 

occasion for both driving under the influence and possession of cocaine, that arrest date would constitute a single rearrest event.

55 See 2016 RECIDIVISM OVERVIEW, supra note 37, at 23.

56 See 2016 RECIDIVISM OVERVIEW, supra note 37, at 18.

61
57 See USSG, Ch.4, Pt. A, intro. comment.; see also U.S. SENTENCING COMM’N, SUPPLEMENTARY REPORT ON THE INITIAL SENTENCING GUIDELINES AND POLICY 

STATEMENTS, 41-44 (1987), available at http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/1987/manualpdf/1987_Supplementary_Report_Initial_Sentencing_Guidelines.pdf. 

58 See 2016 RECIDIVISM OVERVIEW, supra note 37, at 18-19.

59 Before the amendment, the term “crime of violence” in §4B1.2 included any offense that “otherwise involves conduct that presents a serious potential risk of 

physical injury to another.” See USSG §4B1.2(a)(2) (2015).

60 See Appendix D.

61 S. Rep. No 98–225, at 307 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3486; see also S. 1630, 97th Cong. § 111 (1st Session 1981); S. Rep. No. 97–307 

(1981).

62 Pub. L. 98–473, tit. II, § 1001(a), 98 Stat. 1976, 2136 (1984).

63 See, e.g., United States v. Gomez-Leon, 545 F.3d 777, 786 & n.7 (9th Cir. 2008) (noting the existence of “four different ways to determine whether an offense 

constitutes a ‘crime of violence’”).

64 See, e.g., United States v. Hall, 714 F.3d 1270, 1272-74 (11th Cir. 2013) (finding that possession of a short-barreled shotgun was a “crime of violence” under 

§4B1.2, but was not a “violent felony” under ACCA, even though the two definitions were “substantially the same”).

65 J. Sutton 25th Anniversary Testimony.

66 See, e.g., R. Tallman 25th Anniversary Testimony.

67 Taylor v. United States, 495 U.S. 575 (1990).

68 See Mathis v. United States, __ S.Ct. __, 2016 WL 3434400 (June 23, 2016) (holding that the “categorical approach” requires that a sentencing court look 

only to the elements of the statute of conviction, and therefore that courts may not decide whether to count a conviction by determining which of multiple 

alternative “means of commission” a defendant used to commit an offense, even if those means are listed explicitly in the statute of conviction). In his 

concurring opinion, Justice Kennedy specifically discussed his concerns regarding the operation of the categorical approach, and suggested that Congress could 

amend the statutory provisions to address some of the ongoing concerns. See id. at *13 (Kennedy concurrence). 

69 Johnson v. United States, 135 S. Ct. 2551 (2015). 

70 18 U.S.C. § 924(e)(2)(B)(ii).

71 See Johnson, 135 S. Ct. at 2557.

72 See, e.g., United States v. Vivas-Ceja, 808 F.3d 719, 723 (7th Cir. 2015) (applying Johnson to invalidate the § 16(b) residual clause in a case arising under 

§2L1.2); Dimaya v. Lynch, 803 F.3d 1110, 1118-19 (9th Cir. 2015) (invalidating the § 16(b) residual clause in an administrative immigration case); United States

v. Hernandez-Lara, No. 13-10637, 2016 WL 1239199, at *1 (9th Cir. Mar. 29, 2016) (extending Dimaya to the criminal context). But see United States v.

Taylor, 814 F.3d 340, 379 (6th Cir. 2016) (declining to invalidate the residual clause at 18 U.S.C. § 924(c)(3)(B), while noting that it “appears identical . . . in all

material respects” to the § 16(b) clause). A panel of the Fifth Circuit invalidated the § 16(b) residual clause, but that court subsequently granted rehearing en

banc, vacating the panel decision. See United States v. Gonzalez-Longoria, 813 F.3d 225 (5th Cir. 2016), vacated & reh’g en banc granted, 815 F.3d 189

(2016). The case remains pending before the en banc court.

62
73 See Beckles v. United States, 616 Fed.Appx. 415 (11th Cir. 2015, cert. gratned, 2016 WL 1029080, at *1 (June 27, 2016).

74 Amendment on “Crime of Violence” and Related Issues, submitted to Congress on Jan. 21, 2016, 81 Fed. Reg. 4741 (Jan. 27, 2016). The “crime of violence” 

definition at §4B1.2 also triggers increased sentences under several other provisions in the Guidelines Manual. See §§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 or Ammunition), 2S1.1 (Laundering of Monetary Instruments; Engaging in Monetary 

Transactions in Property Derived from Unlawful Activity), 4A1.1(e) (Criminal History Category), 7B1.1 (Classification of Violations (Policy Statement)).

75 See supra note 69.

76 Compare United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (rejecting the argument that the residual clause in §4B1.2 is unconstitutionally vague in 

light of Johnson) and United States v. Wilson, 622 F. App’x 393, 405 n.51 (5th Cir. 2015), cert. denied, 136 S. Ct. 992 (2016) (in considering the applicability of 

Johnson, noting “[o]ur case law indicates that a defendant cannot bring a vagueness challenge against a Sentencing Guideline”), with United States v. Taylor, 803 

F.3d 931 (8th Cir. 2015) (finding that previous circuit precedent holding that the guidelines cannot be unconstitutionally vague because they do not proscribe

conduct is doubtful after Johnson); United States v. Madrid, 805 F.3d 1204, 1211 (10th Cir. 2015) (holding that that the residual clause of §4B1.2(a)(2) is void

for vagueness); United States v. Harbin, 610 F. App’x 562 (6th Cir. 2015) (finding that defendant is entitled to the same relief as offenders sentenced under the

residual clause of the ACCA); United States v. Townsend, __ F.3d __, 2015 WL 9311394, at *4 (3d Cir. Dec. 23, 2015) (remanding for resentencing in light of

the government’s concession that, pursuant to Johnson, the defendant should not have been sentenced as a career offender); and United States v. Hudson, __ F.3d

__, 2016 WL 2621093, at *6 (1st Cir. May 9, 2016) (noting the government’s concession that the residual clause in §4B1.2 is invalid in light of the holding in

Johnson).

77 Including offenses involving the “use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or an explosive material as defined in 18 U.S.C. 

§ 841(c)” is consistent with long-standing commentary in §4B1.2 categorically identifying possession of a firearm described in 26 U.S.C. § 5845(a) as a “crime

of violence,” and therefore maintains the status quo. Possession of these types of weapons (e.g., a sawed-off shotgun or sawed-off rifle, silencer, bomb, or

machine gun) inherently presents a serious potential risk of physical injury to another person, and classifying them as crimes of violence reflects Congress’s

determination that such weapons are inherently dangerous and, when possessed unlawfully, serve only violent purposes. See also USSG App. C, amend. 674

(eff. Nov. 1, 2004) (expanding the definition of “crime of violence” in Application Note 1 to §4B1.2 to include unlawful possession of any firearm described in

26 U.S.C. § 5845(a)).

78 See 18 U.S.C. § 924(e)(2)(B)(ii) (enumerating burglary, arson, extortion, and offenses that involves the use of explosives).

79 See BUREAU OF JUSTICE STATISTICS, supra note 11.

80 CULP, ET AL., supra note 11.

81 Compare United States v. Henriquez, 757 F.3d 144, 148-49 (4th Cir. 2014); United States v. McFalls, 592 F.3d 707 (6th Cir. 2010); United States v. Wenner, 

351 F.3d 969 (9th Cir. 2003) with United States v. Ramirez, 708 F.3d 295, 301 (1st Cir. 2013); United States v. Murillo-Lopez, 444 F.3d 337, 340 (5th Cir. 

2006); United States v. Rivera-Oros, 590 F.3d 1123 (10th Cir. 2009); United States v. McClenton, 53 F.3d 584 (3d Cir. 1995); United States v. Graham, 982 F.2d 

315 (8th Cir. 1992).

82 The Commission included such a departure provision in the revised career offender definition. The amendment adds an upward departure provision to §4B1.2 

to address the unusual case in which the instant offense or a prior felony conviction was any burglary offense involving violence that did not otherwise qualify as 

a “crime of violence.” This departure provision allows courts to consider all burglary offenses, as opposed to just burglaries of a dwelling, and reflects the 

Commission’s determination that courts should consider an upward departure where a defendant would have received a higher offense level, higher Criminal 

History Category, or both (e.g., where the defendant would have been a career offender) if such burglary had qualified as a “crime of violence.” 

63
83 393 U.S. 286, 290 (1969) (defining “extortion” for purposes of the Hobbs Act).

64
APPENDIX A 

HISTORY OF THE CAREER OFFENDER GUIDELINE

Appendix A-1
Appendix A-2
Promulgation of the Career Offender Guideline

Although the career offender guideline is most directly 

a result of the directive in 28 U.S.C. § 994(h), Congress 

contemplated that the Commission in implementing the 

directive would perform its institutional policy-making role as 

outlined in other provisions of the Sentencing Reform Act of 

1984 (SRA). On March 26, 1987, the Commission’s Office of 

General Counsel authored a memorandum discussing the 

legislative history of § 994(h) and construing the meaning of 

the statute for implementation purposes.1 That memorandum 

concluded: 

[T]he effect of changing the provision to a

directive to the Sentencing Commission is to

leave it [to] the Commission to construe this

directive as consistently as it can with the

numerous other Congressional directives in the

Commission’s governing statute. . . . Reasonably

construing the provision in its present context

and in light of the total legislative history, it is

sensible to conclude that Congress did not intend

a purely mechanical application which would be

unduly harsh in some instances and inconsistent

with the overall instructions to the Sentencing

Commission. Counsel further doubts that

Congress would desire the Commission to adopt

a strict, literalistic reading which exacerbates

prison impact. Most members of the legislative

body would probably appreciate a less extreme,

more flexible approach, so long as it clearly

achieved the fundamental objective of severely

punishing career criminals.2

In order to achieve this objective, the Commission 

promulgated §4B1.1 (Career Offender) and §4B1.2 

(Definitions). As initially promulgated (effective November, 

1987), these guidelines provided as follows: 

§4B1.1 Career Offender

A defendant is a career offender if (1) the 

defendant was at least eighteen years old at the 

time of the instant offense, (2) the instant offense 

is a crime of violence or trafficking in a 

controlled substance, and (3) the defendant has at 

least two prior felony convictions of either a 

crime of violence or a controlled substance 

offense. If the offense level for a career criminal 

from the table below is greater than the offense 

level otherwise applicable, the offense level from 

the table below shall apply. A career offender’s 

criminal history category in every case shall be 

Category VI.

Offense Statutory 

Maximum 

Offense 

Level

(A) Life 37

(B) 20 years or more 34

(C) 10 years, but less

than 20 years

26

(D) 5 years, but less

than 10 years

19

(E) 1 year & 1 day, but

less than 5 years

12

(F) 1 year or less 4

Appendix A-3
§4B1.2 Definitions

(1) The term “crime of violence” as used in

this provision is defined under 18 U.S.C.

§ 16.

(2) The term “controlled substance offense”

as used in this provision means an offense

identified in 21 U.S.C. §§ 841, 952(a),

955, 955a, 959; §§ 405B and 416 of the

Controlled Substance Act as amended in

1986, and similar offenses.

(3) The term “two prior felony convictions”

means (A) the defendant committed the

instant offense subsequent to sustaining

at least two felony convictions for either

a crime of violence or a controlled

substance offense (i.e., two crimes of

violence, two controlled substance

offenses, or one crime of violence and

one controlled substance offense), and

(B) the sentences for at least two of the

aforementioned felony convictions are

counted separately under the provisions

of Part A of this Chapter. The date that a

defendant sustained a conviction shall be

the date the judgment of conviction was

entered.3

The Commission also promulgated Commentary 

explaining the career offender guidelines. In relevant part, it 

read as follows:

28 U.S.C. § 994(h) mandates that the 

Commission assure that certain “career” or 

special offenders, as defined in the statute, 

receive a sentence of imprisonment “at or near 

the maximum term authorized.” Section 4B1.1 

implements this mandate. The legislative history 

of this provision suggests that the phrase 

“maximum term authorized” should be construed 

as the maximum term authorized by statute. See

S. Rep. 98-225, 98th Cong., 1st Sess. 175 (1983),

128 Cong. Rec. 12792, 97th Cong., 2d Sess.

(1982) (“Career Criminals” amendment No. 13

by Senator Kennedy), 12796 (explanation of

amendment), and 12798 (remarks by Senator

Kennedy).

The guideline levels for career criminals 

were established by using the statutory maximum 

for the offense of conviction to determine the 

class of felony provided in 18 U.S.C. § 3559. 

Then the maximum authorized sentence of 

imprisonment for each class of felony was 

determined as provided by 18 U.S.C. § 3581. A 

guideline range for each class of felony was then 

chosen so that the maximum of the guideline 

range was at or near the maximum provided in 18 

U.S.C. § 3581. 

Section 4B1.2 provides the definitions for 

§4B1.1. The definition of the term “crime of

violence”, as that term is used in 28 U.S.C. §

994(h), is taken from Section 1001 of the

Appendix A-4
Comprehensive Crime Control Act of 1984, 

which defined the term for purposes of all of Title 

18, United States Code. See S. Rep. 98-225, 98th 

Cong., 1st Sess. 307 (1983). 

The term “controlled substance offense” 

is defined to include the offenses described in 28 

U.S.C. § 994(h), as these offenses have been 

modified by amendments to the Controlled 

Substances Act made by the Anti-Drug Abuse 

Act of 1986, Pub. L. 99—570. 

In the Supplementary Report on the Initial Sentencing 

Guidelines and Policy Statements, the Commission discussed 

the development process, the guidelines generally, and the 

anticipated prison impact of implementation of the guidelines. 

The first express mention of §4B1.1 in the Supplementary 

Report occurs in the section on Criminal History and Criminal 

Livelihood discussing the rate of increase in the guideline 

range provided from one criminal history category to the next. 

The Commission noted that although “the rate of increase and 

the maximum increase in the Sentencing Table attributable to 

the defendant’s criminal history roughly parallels that increase 

in the parole guidelines. . . [i]t is to be noted . . . that under 

§4B1.1 (Career Offenders) much larger relative increases are

provided for certain repeat offenders, consistent with

legislative direction.”4

Evolution of the Career Offender Guideline 

The career offender guideline has undergone a number 

of significant amendments since its promulgation. This section 

will provide a chronological history of the changes the 

Commission has made to §§4B1.1 and 4B1.2. 

1988 Guideline Amendments 

Shortly after the initial promulgation of the guidelines, 

which took effect on November 1, 1987, the Commission made 

several changes to commentary in response to “extensive 

clinical testing of the guidelines,” which “produced useful 

suggestions for clarifying and reorganizing the commentary.”5

The Commission published these amendments in the Federal 

Register on November 20, 1987, including some changes to the 

career offender guidelines.6 The commentary was split between

parts applicable to §§4B1.1 and 4B1.2, and an Application 

Note was added to §4B1.1 explicitly referencing the definitions 

in §4B1.2.7 Additionally, §4B1.1 was amended to provide that 

qualifying prior offenses were limited to felony crimes of

violence or drug trafficking offenses.8 The Commission 

solicited additional comment on these amendments, noting that 

they were not intended to represent substantive changes, but 

instead to correct clerical errors and to clarify the guidelines.

9

These changes included an amendment to the table contained

in §4B1.1 used to determine the offense level.10 The amended 

version of the career offender guidelines (effective January 15, 

1988) was as follows: 

§4B1.1 Career Offender

A defendant is a career offender if (1) the 

defendant was at least eighteen years old at the 

time of the instant offense, (2) the instant 

offense of conviction is a felony that is either a 

crime of violence or a controlled substance 

Appendix A-5
offense, and (3) the defendant has at least two 

prior felony convictions of either a crime of 

violence or a controlled substance offense. If 

the offense level for a career criminal from the 

table below is greater than the offense level 

otherwise applicable, the offense level from the 

table below shall apply. A career offender’s 

criminal history category in every case shall be 

Category VI.

Offense Statutory 

Maximum 

Offense 

Level

(A) Life 37

(B) 25 years or more 34

(C) 20 years or more,

but less than 25 years

32

(D) 15 years or more,

but less than 20 years

29

(E) 10 years or more,

but less than 15

24

(F) 5 years or more, but 

less than 10 years

17

(G) More than 1 year,

but less than 5 years

12

Commentary 

Application Note:

1. “Crime of violence,” “controlled substance offense,”

and “felony conviction” are defined in §4B1.2.

Background: 28 U.S.C. § 994(h) mandates that the

Commission assure that certain “career” offenders, as

defined in the statute, receive a sentence of

imprisonment “at or near the maximum term 

authorized.” Section 4B1.1 implements this mandate. 

The legislative history of this provision suggests that 

the phrase “maximum term authorized” should be 

construed as the maximum term authorized by statute. 

See S. Rep. 98-225, 98th Cong., 1st Sess. 175 (1983), 

128 Cong. Rec. 12792, 97th Cong., 2d Sess. (1982) 

(“Career Criminals” amendment No. 13 by Senator 

Kennedy), 12796 (explanation of amendment), and 

12798 (remarks by Senator Kennedy).

§4B1.2 Definitions

(1) The term “crime of violence” as used in

this provision is defined under 18 U.S.C.

§ 16.

(2) The term “controlled substance offense”

as used in this provision means an

offense identified in 21 U.S.C. §§ 841,

845b, 856, 952(a), 955, 955a, 959, and

similar offenses.

(3) The term “two prior felony convictions”

means (A) the defendant committed the

instant offense subsequent to sustaining

at least two felony convictions for either

a crime of violence or a controlled

substance offense (i.e., two crimes of

violence, two controlled substance

offenses, or one crime of violence and

one controlled substance offense), and

(B) the sentences for at least two of the

Appendix A-6
aforementioned felony convictions are 

counted separately under the provisions 

of Part A of this Chapter. The date that 

a defendant sustained a conviction shall 

be the date the judgment of conviction 

was entered.

Commentary

Application Notes: 

1. “Crime of violence” is defined in 18 U.S.C. § 16

to mean an offense hat has as an element the

use, attempted use, or threatened use of physical

force against the person or property of another,

or any other offense that is a felony and that by

its nature involves a substantial risk that

physical force against that person or property of

another may be used in committing the offense.

The Commission interprets this as follows:

murder, manslaughter, kidnapping, aggravated

assault, extortionate extension of credit, forcible

sex offenses, arson, or robbery are covered by

this provision. Other offenses are covered only

if the conduct for which the defendant was

specifically convicted meets the above

definition. For example, conviction for an

escape accomplished by force or threat of injury

would be covered; conviction for an escape by

stealth would not be covered. Conviction for

burglary of a dwelling would be covered;

conviction for burglary of other structures

would not be covered.

2. “Controlled substance offense” includes any

federal or state offense that is substantially

similar to any of those listed in subsection (2) of

the guideline. These offenses include

manufacturing, importing, distributing,

dispensing, or possessing with intent to

manufacture, import, distribute, or dispense, a

controlled substance (or a counterfeit

substance). This definition also includes aiding

and abetting, conspiring, or attempting to

commit such offenses, and other offenses that

are substantially equivalent to the offenses

listed.

3. “Prior felony conviction” means a prior adult

federal or state conviction for an offense

punishable by death or imprisonment for a term

exceeding one year, regardless of whether such

offense is specifically designated as a felony and

regardless of the actual sentence imposed.

4. The provisions of §4A1.2(e) (Applicable Time

Period), §4A1.2(h) (Foreign Sentences), and

§4A1.2(j) (Expunged Convictions) are

applicable to the counting of convictions under

§4B1.1. Also applicable is the Commentary to

§4A1.2 pertaining to invalid convictions.

On January 15, 1998, these amendments took 

temporary effect and were published in the Federal Register.11 

Several changes that had not been part of the November 

publication were included in the January version of the 

Appendix A-7
guidelines; these changes were promulgated under the 

Commission’s emergency authority under 28 U.S.C. § 

994(p).12 All of the changes were re-promulgated in the 

Commission’s April 29, 1988 submission to Congress.13 

Amendments 47, 48 and 49 implemented these changes. 

Amendment 47 altered the explanation of which 

offenses, as the instant offense of conviction, would qualify the 

defendant as a career offender. Prior to the amendment, a 

qualifying instant offense was “a crime of violence or 

trafficking in a controlled substance;” after the amendment, it 

was “a felony that is either a crime of violence or a controlled 

substance offense.”14 Amendment 48 contained the new 

offense table, which was designed “to correct the guideline so 

that the table relating offense statutory maxima to offense 

levels is consistent with the current authorized statutory 

maximum terms.”15 Amendment 49 contained several 

modifications to §4B1.2, including non-substantive changes to 

the list of statutes referenced in the definition of “controlled 

substance offense.”16 

1989 Guideline Amendments 

Several important amendments followed in 1989, when 

the Commission considered how it should respond to 

Congress’s enactment of the Armed Career Criminal Act 

(ACCA), including any impact on the career offender 

guidelines. The ACCA provides enhanced sentences, 

including a 15-year mandatory minimum, for certain offenders 

convicted under 18 U.S.C. § 922(g), which prohibits convicted 

felons from possessing firearms. Specifically, the ACCA 

imposes additional incarceration on offenders who have three 

prior convictions “for a violent felony or a serious drug 

offense.”17 The Commission, in considering its response to 

this legislation, consulted literature reviews, reports from 

judges and probation officers collected through training and 

help line calls, legislative history and case law reviews. 

As noted above, the career offender guideline as 

initially promulgated defined the term “crime of violence” by 

reference to 18 U.S.C. § 16, which had been added to the Code 

in 1984 and which defines the term “crime of violence” as:

(a) an offense that has as an element the use,

attempted use, or threatened use of physical force

against the person or property of another, or

(b) any other offense that is a felony and that, by

its nature, involved a substantial risk that

physical force against the person or property of

another may be used in the course of committing

the offense.18

The term “controlled substance offense” had been defined by 

listing the particular provisions of Title 21 that criminalized 

such offenses. 

Effective November 1, 1989, the Commission changed 

the definitions of the terms “crime of violence” and “controlled 

substance offense” from the definitions originally used to new 

definitions based on the definitions of the terms “violent 

felony” and “serious drug offense” in the ACCA.19 The 

Commission made this change in response to research that 

concluded that “[the definition in § 924(e)] is more specific 

than the definition of a ‘crime of violence’ in 18 U.S.C. § 16, 

and more narrowly drawn” and “that . . . linking the definitions 

of predicate crimes to those already approved, defined and 

Appendix A-8
joined together by Congress for the heavy sanction of § 924(e) 

would facilitate both the acceptance of the guideline and its 

proper application.”20 

With respect to the term “controlled substance offense,” 

the Commission sought a definition that was well-established 

in legislative history and that had the prospect of cohesive case 

law development. The Commission concluded that the 

definition from 18 U.S.C. § 924(e) would be preferable to the 

previous definition because the previous definition “introduces 

a new offense description into the drug law, one which will 

have no legislative history and less interpretive case law than 

would a term already adopted by Congress.”21 Additionally, 

practical concerns led the Commission to note that “the listing 

of offenses by section number will necessitate the continuous 

review of new drug laws, both in terms of their substantive 

similarity to those already listed in the guideline and simply in 

terms of the revised section numbers.”22 

The Commission further amended the Application 

Notes to §4B1.2 in two ways. First, the Commission explained 

that “[t]he terms ‘crime of violence’ and ‘controlled substance 

offense’ include the offenses of aiding and abetting, conspiring, 

and attempting to commit such offenses.”23 The Commission 

also deleted the existing commentary clarifying the definition 

of “crime of violence” and replaced it with the following text:

“Crime of violence” includes murder, 

manslaughter, kidnapping, aggravated assault, 

forcible sex offenses, robbery, arson, extortion, 

extortionate extension of credit, and burglary of 

a dwelling. Other offenses are included where 

(A) that offense has as an element the use,

attempted use, or threatened use of physical 

force against the person of another, or (B) the 

conduct set forth in the count of which the 

defendant was convicted involved use of 

explosives or, by its nature, presented a serious 

potential risk of physical injury to another.24

Second, the Commission also amended §4B1.1 to 

permit the application of an adjustment from §3E1.1 

(Acceptance of Responsibility) to the offense level of those 

sentenced as career offenders.25

 

1991 Guideline Amendments 

In 1991, the Commission amended the commentary to 

§4B1.2 to resolve a circuit conflict regarding whether the

offense of unlawful possession of a firearm was a “crime of

violence” under the guideline. The Commission concluded

that felon-in-possession offenses generally were not crimes of

violence under §4B1.2.26 The Commission, in ratifying the

amendment, explained:

The previous amendment clarified that 

application of §4B1.2 is governed by the offense 

of conviction, and that the offense of being a 

felon in possession of a firearm is not a crime of 

violence within the meaning of this guideline. 

As a clarifying and conforming change, the 

previous commentary amendment reflected 

Commission intent that the term “crime of 

violence,” as that term is used in §§4B1.1- 

4B1.2, be interpreted consistently with that term 

as used in other provisions of the Guidelines 

Appendix A-9
Manual. For example, §4B1.4, as promulgated 

by amendment 355, effective November 1, 

1990, provides an increased offense level for a 

“felon-in-possession” defendant who is subject 

to an enhanced sentence under 18 U.S.C. § 

924(e) and who used or possessed the firearm in 

connection with a crime of violence.27

The validity of this amendment was appealed to the Supreme 

Court, which upheld the amendment in Stinson v. United 

States.

28 In that ruling, the Supreme Court held that, as a 

general matter, valid commentary was binding on all courts 

applying the guidelines. The Court noted its previous 

explanation that, in delegating authority to the Commission, 

“‘Congress necessarily contemplated that the Commission 

would periodically review the work of the courts, and would 

make whatever clarifying revisions to the Guidelines 

conflicting judicial decisions might suggest.’”29 In upholding 

the binding nature of the commentary, the Supreme Court held 

that “[the amendment] does not run afoul of the Constitution or 

a federal statute, and it is not plainly erroneous or inconsistent 

with §4B1.2.”30 As a result of this finding, the Court 

concluded that the amendment was a proper exercise of the 

Commission’s authority under the SRA to explain “how . . . the 

guidelines should be applied to be consistent with the 

Guidelines Manual as a whole as well as the authorizing 

statute.”31 

1994 Guideline Amendments 

Another significant revision, effective November 1, 

1994, addressed the issue of which maximum term was to be 

used in calculating a career offender’s guideline range when 

federal law establishes both a basic statutory maximum for a 

person convicted of a particular offense and an enhanced 

maximum penalty for repeat offenders convicted of that same 

offense. Prior to the November 1, 1994 amendment, courts 

generally concluded that the enhanced maximum penalty 

should be used in determining the offense level for a career 

offender; in response, the Commission amended the career 

offender guideline commentary at §4B1.1 to preclude 

consideration of statutory enhancements in calculating the 

“offense statutory maximum.”32 The Commission defined the 

phrase “offense statutory maximum” as: 

the maximum term of imprisonment authorized 

for the offense of conviction that is a crime of 

violence or controlled substance offense, not 

including any increase in that maximum term 

under a sentencing enhancement provision that 

applies because of a defendant’s prior criminal 

record. 

The reason for amendment explained that “[t]his rule avoids 

unwarranted double counting as well as unwarranted disparity 

associated with variations in the exercise of prosecutorial 

discretion in seeking enhanced penalties based on prior 

convictions.”33 

After this amendment took effect, a circuit split 

developed and the Supreme Court granted certiorari in United 

States v. LaBonte34 to resolve the issue of whether the 

Commission’s implementation of amendment 506 conflicted 

with its obligation in § 994(h) to “assure that the guidelines 

specify a sentence to a term of imprisonment at or near the 

maximum term authorized for categories of [career offenders].” 

Appendix A-10
The LaBonte majority concluded that the amendment 

conflicted with the plain, unambiguous language of § 994(h) 

and that the Commission therefore lacked authority to 

promulgate it.35 Although the majority acknowledged that 

“Congress has delegated to the Commission ‘significant 

discretion in formulating guidelines’ for sentencing convicted 

federal offenders,” it emphasized that such discretion “must 

bow to the specific directives of Congress.”36 The Supreme 

Court rejected the Commission’s amendment of the guideline, 

noting that “Congress surely did not establish enhanced 

penalties for repeat offenders only to have the Commission 

render them a virtual nullity.”37 

The LaBonte Court acknowledged that § 994(h) itself 

does provide some discretion to the Commission in 

promulgating guidelines for career offenders.38 However, the 

Court held that “[w]hatever latitude § 994(h) affords the 

Commission in deciding how close a sentence must come to 

the maximum to be ‘near’ it, the statute does not license the 

Commission to select as the relevant ‘maximum term’ a 

sentence that is different from the congressionally authorized 

maximum term.”39 As a result, the Court invalidated 

Amendment 506. In response, the Commission amended the 

guideline to remove the definition.40

1995 Guideline Amendments 

Effective November 1, 1995, the Commission amended 

the background commentary to §4B1.1 by “insert[ing] 

additional background commentary . . . explaining the 

Commission’s rationale and authority for its implementation of 

[the Career Offender] guideline.”41 The amended commentary 

is as follows, with the portions added by this amendment in 

bold: 

Section 994(h) of title 28, United States Code, 

mandates that the Commission assure that certain 

‘career’ offenders receive a sentence of 

imprisonment ‘at or near the maximum term 

authorized.’ Section 4B1.1 implements this 

directive, with the definition of a career 

offender tracking in large part the criteria set 

forth in 28 U.S.C. 994(h). However, in accord 

with its general guideline promulgation 

authority under 28 U.S.C. 994(a)-(f), and its 

amendment authority under 28 U.S.C. 994 (o) 

and (p), the Commission has modified this 

definition in several respects to focus more 

precisely on the class of recidivist offenders 

for whom a lengthy term of imprisonment is 

appropriate and avoid ‘unwarranted 

sentencing disparities among defendants with 

similar records who have been found guilty of 

similar criminal conduct ... .’ 28 U.S.C. 

991(b)(1)(B). The Commission’s refinement of 

this definition over time is consistent with 

Congress’ choice of a directive to the 

Commission rather than a mandatory 

minimum sentencing statute (‘The [Senate 

Judiciary] Committee believes that such a 

directive to the Commission will be more 

effective; the guidelines development process 

can assure consistent and rational 

implementation for the Committee's view that 

substantial prison terms should be imposed on 

Appendix A-11
repeat violent offenders and repeat drug 

traffickers.’ S. Rep. No. 225, 98th Cong., 1st 

Sess. 175 (1983)). 

The legislative history of this provision suggests 

that the phrase ‘maximum term authorized’ 

should be construed as the maximum term 

authorized by statute. See S. Rep. No. 225, 98th 

Cong., 1st Sess. 175 (1983), 128 Cong. Rec. 26, 

511-12 (1982) (text of ‘Career Criminals’ 

amendment by Senator Kennedy) id. at 26, 515 

(brief summary of amendment) id. at 26, 517-18 

(statement of Senator Kennedy).42

The Commission explained its reasoning for including this 

additional commentary as follows:

The amendment responds to a decision by the 

United States Court of Appeals for the District of 

Columbia Circuit in United States v. Price, 990 

F.2d 1367 (D.C. Cir. 1993). In Price, the court 

invalidated application of the career offender 

guideline to a defendant convicted of a drug 

conspiracy because 28 U.S.C. 994(h), which the 

Commission cites as the mandating authority for

the career offender guideline, does not expressly 

refer to inchoate offenses. The court indicated 

that it did not foreclose Commission authority to 

include conspiracy offenses under the career 

offender guideline by drawing upon its broader 

guideline promulgation authority in 28 U.S.C. 

994(a). See also United States v. MendozaFigueroa, 28 F.3d 766 (8th Cir. 1994), vacated

(Sept. 2, 1994); United States v. Bellazerius, 24 

F.3d 698 (5th Cir.), cert. denied, 115 S. Ct. 375 

(1994). Other circuits have rejected the Price 

analysis and upheld the Commission’s definition 

of “controlled substance offense.” For example, 

the Ninth Circuit considered the legislative 

history to 994(h) and determined that the Senate 

Report clearly indicated that 994(h) was not the 

sole enabling statute for the career offender 

guidelines. United States v. Heim, 15 F.3d 830 

(9th Cir.), cert. denied, 115 S. Ct. 55 (1994). See 

also United States v. Hightower, 25 F.3d 182 (3d 

Cir.), cert. denied, 115 S. Ct. 370 (1994); United 

States v. Damerville, 27 F.3d 254 (7th Cir.), cert. 

denied, 115 S. Ct. 445 (1994); United States v. 

Allen, 24 F.3d 1180 (10th Cir.), cert. denied, 115 

S. Ct. 493 (1994); United States v. Baker, 16 F.3d 

854 (8th Cir. 1994); United States v. Linnear, 40 

F.3d 215 (7th Cir. 1994); United States v. 

Kennedy, 32 F.3d 876 (4th Cir. 1994), cert. 

denied, 115 S. Ct. 939 (1995); United States v. 

Piper, 35 F.3d 611 (1st Cir. 1994), cert. denied, 

115 S. Ct. 1118 (1995).43

1997 Guideline Amendments 

The Commission addressed another circuit conflict in 1997 

regarding the offense of possessing certain chemicals or 

prohibited flasks or other equipment with intent to manufacture 

a controlled substance. The Commission concluded that such 

offenses should qualify as predicate “controlled substance 

offenses” for career offender purposes, and amended the 

Appendix A-12
commentary to explicitly provide that such offenses qualify. In 

so doing, the Commission explained: 

This amendment addresses a circuit court 

conflict regarding whether the offenses of 

possessing a listed chemical with intent to 

manufacture a controlled substance or possessing 

a prohibited flask or equipment with intent to 

manufacture a controlled substance are 

“controlled substance offenses” under the career 

offender guideline. Compare United States v. 

Calverley, 11 F.3d 505 (5th Cir. 1993) 

(possession of a listed chemical with intent to 

manufacture a controlled substance is a 

controlled substance offense under §4B1.2) with 

United States v. Wagner, 994 F.2d 1467, 1475 

(10th Cir. 1993) (possession of a listed chemical 

with intent to manufacture a controlled substance 

is not a controlled substance offense). This 

amendment makes each of these offenses a 

“controlled substance offense” under the career 

offender guideline. This decision is based on the 

Commission's view that there is such a close 

connection between possession of a listed 

chemical or prohibited flask or equipment with 

intent to manufacture a controlled substance and 

actually manufacturing a controlled substance 

that the former offenses are fairly considered as 

controlled substance trafficking offenses. 

Practically speaking, the circuit conflict appears to have 

largely been triggered by the 1989 deletion from the §4B1.2 

commentary of language stating that “substantially similar” 

and “substantially equivalent” offenses were themselves 

controlled substances offenses.44 The 1997 amendment largely 

restored the effect, if not the wording, of the language that was 

deleted in 1989. 

2000 and 2002 Guideline Amendments 

In 2000 and 2002, the Commission again returned to 

the relationship between career offenders and the five-year 

mandatory consecutive sentences required by 18 U.S.C. 

§ 924(c) (possession of a firearm in furtherance of a crime of

violence or drug trafficking crime) or § 929(a) (possession of

armor piercing ammunition during and in relation to a crime of

violence or drug trafficking crime).

In 2000, the Commission determined that a defendant’s 

prior convictions under §§ 924(c) or 929(a) would count as 

prior felony convictions for purposes of the career offender 

guideline. In 2002, violations of 18 U.S.C. §§ 924(c) or 929(a) 

would also count as the underlying offense of eligibility under 

§4B1.2. To accomplish these goals, the commentary to §4B1.2

was amended to include the following, in Application Note 1:

A violation of 18 U.S.C. § 924(c) or § 929(a) is a 

“crime of violence” or a “controlled substance 

offense’ if the offense of conviction established 

that the underlying offense was a “crime of 

violence” or a “controlled substance offense.” 

(Note that in the case of a prior 18 U.S.C. § 

924(c) or § 929(a) conviction, if the defendant 

also was convicted of the underlying offense, the 

two prior convictions will be treated as related 

Appendix A-13
cases under §4A1.2 (Definitions and Instructions 

for Computing Criminal History).)45

The Commission explained at some length the reasons for the 

changes it made:

This amendment is intended to comply with the 

statutory directive in 28 U.S.C. § 994(h) by 

providing a guideline sentence at or near the 

statutory maximum of life imprisonment for 

cases in which certain serious firearm offenses 

establish the defendant as a career offender.

This amendment provides special rules in 

§§4B1.1 (Career Offender) and 5G1.2

(Sentencing on Multiple Counts of Conviction)

for determining and imposing a guideline

sentence in a case in which the defendant is

convicted of an offense under 18 U.S.C. § 924(c)

or § 929(a) and, as a result of that conviction, is

determined to be a career offender under §§4B1.1

and 4B1.2 (Definitions of Terms Used in Section

4B1.1). The amendment supplements

Amendment 600 (effective November 1, 2000) in

which the Commission first addressed

implementation of the statutory changes in

penalties for 18 U.S.C. §§ 924(c) and 929(a)

offenses made by the Act to Throttle the Criminal

Use of Guns, Pub. L. 105—386. At that time, the

Commission deferred addressing the more

complicated issues of whether convictions under

18 U.S.C. §§ 924(c) and 929(a) can qualify as

instant offenses for purposes of §4B1.1, and if

they do so qualify, how the sentence would be

imposed. Promulgation of this amendment 

reflects the Commission’s decision that the 

amendment, while somewhat complex, is 

necessary to comply appropriately with 28 

U.S.C. § 994(h). 

Operationally, this amendment achieves two 

goals. First, it permits 18 U.S.C. § 924(c) or § 

929(a) offenses, whether as the instant or prior 

offense of conviction, to qualify for career 

offender purposes. Second, it ensures that, in a 

case in which such an instant offense establishes 

the defendant as a career offender, the resulting 

guideline sentence is determined under §4B1.1 

using a count of conviction that has a statutory 

maximum of life imprisonment. The special rule 

necessarily is somewhat more complex because 

of the need to address certain anomalies that 

infrequently would occur in the absence of such 

a rule, i.e., that a very serious offender could 

receive a lower sentence by virtue of the 

application of §4B1.1 than that which would 

otherwise be received by imposing the statutorily 

required minimum sentence consecutively to the 

otherwise applicable guideline range.46

2004 Guideline Amendments 

In 2004, the Commission once again addressed the 

issue of felon-in-possession convictions as career offender 

predicates, this time in response to firearms legislation related 

to possessing certain dangerous weapons. The Commission 

created an exception to the general rule that felon-in-possession 

Appendix A-14
convictions do not constitute predicate offenses, declaring such 

offenses to count as predicates when they involve such 

dangerous weapons. Accordingly, the commentary to §4B1.2 

provided that “[u]nlawfully possessing a firearm described in 

26 U.S.C. § 5845(a) (e.g., a sawed-off shotgun or sawed-off 

rifle, silencer, bomb or machine gun) is a ‘crime of 

violence.’”47 The Reason for Amendment explained: 

“Congress has determined that those firearms ... are inherently 

dangerous and when possessed unlawfully, serve only violent 

purposes.”48 The Commission also noted that some courts 

applying the guidelines had already reached this conclusion.49

2016 Guideline Amendment 

As part of its multi-year study, the Commission 

promulgated an amendment to the career offender guideline in 

January 2016, and submitted a final version of the amendment 

to Congress in January 2016.50 As discussed in more detail in 

Part V of this report, the amendment adopted several changes 

to the definition of “crime of violence” at §4B1.2 (Definitions 

of Terms Used in Section 4B1.1), including deletion of the 

“residual clause” at §4B1.2(a)(2). With the deletion of the 

residual clause under subsection (a)(2), the amendment revises 

the list of specific enumerated offenses that qualify as a prior 

crime of violence in a number of ways to focus on the most 

dangerous repeat offenders. As revised, the enumerated 

offenses include murder, voluntary manslaughter, kidnapping, 

aggravated assault, a forcible sex offense, robbery, arson, 

extortion, or the use or unlawful possession of a firearm 

described in 26 U.S.C. § 5845(a) or explosive material as 

defined in 18 U.S.C. § 841(c). The Commission also added 

specific definitions for the enumerated offenses of forcible sex 

offense and extortion. 

Appendix A-15
1

 The memorandum was incorporated into the March 25, 1988, report to the Commission from the Career Offender Working Group; some of the proposals 

contained therein were ultimately adopted as Amendment 268. The report is available at the GPO’s Regional Depository Libraries or at the Commission.

2

 Id. 

3

 USSG §§4B1.1, 4B1.2 (Nov. 1, 1987).

4

 See U.S. SENTENCING COMM’N, SUPPLEMENTARY REPORT ON THE INITIAL SENTENCING GUIDELINES AND POLICY STATEMENTS, 44 (1987), available at 

http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/1987/manual-pdf/1987_Supplementary_Report_Initial_Sentencing_Guidelines.pdf. 

5

 Sentencing Guidelines for United States Courts, 52 Fed. Reg. 44674 (Nov. 20, 1987).

6

 Id. at 44728-29.

7

 Id. 

8

 Id. 

9

 Id. at 1291-92.

10 Id. 

11 Sentencing Guidelines for United States Courts, 53 Fed. Reg. 1286 (Jan. 15, 1988).

12 Id. at 1286.

13 Sentencing Guidelines for United States Courts, 53 Fed. Reg. 15530 (Apr. 29, 1988).

14 USSG App. C, amend. 47 (Jan 15, 1988).

15 USSG App. C, amend. 48 (Jan 15, 1988).

16 USSG App. C, amend. 49 (Jan 15, 1988).

17 18 U.S.C. § 924(e)(1).

18 Pub. L. No. 98—473, Title II, § 1001(a), 98 Stat. 2136 (1984).

19 USSG App. C, amend. 268 (Nov. 1, 1989).

20 Memorandum from Gary J. Peters presenting the report of the career offender working group, March 25, 1988, at 23-24.

21 Id. at 22.

22 Id. at 22-23.

23 USSG App. C, amend. 268. The original version of §4B1.2 had clarified that “aiding and abetting, conspiring, or attempting to commit” controlled substance 

offenses were included as career offender predicates, but had not so specified for crimes of violence. See 4B1.2 comment. (n.2) (1987).

Appendix A-16
24 Id.

25 USSG App. C, amend. 266 (Nov. 1, 1989). This provision was again amended to conform with §3E1.1 when the additional 1-level decrease was provided in 

that guideline. Id. at amendment 459.

26 USSG App. C., amend. 433 (Nov. 1, 1991).

27 Amendments to the Sentencing Guidelines for United States Courts, 57 Fed. Reg. 20148, 20157 (May 11, 1992).

28 508 U.S. 36 (1993).

29 Id. at 46, quoting Braxton v. United States, 500 U.S. 344, 348 (1991).

30 Id. at 47.

31 Id. at 45.

32 USSG App. C, amend. 506 (November 1, 1994).

33 Id. 

34 520 U.S. 751 (1997).

35 Id. at 762.

36 Id. at 757 (quoting Mistretta v. United States, 488 U.S. 361 (1989)).

37 Id. at 760.

38 In a footnote, the LaBonte court stated that “. . . [Section] 994(h) is designed to cabin the Commission’s discretion in the promulgation of guidelines for career 

offenders. . ..” Id. at 761, n. 5.

39 Id. 

40 USSG App. C, amend. 567 (November 1, 1997).

41 Amendments to the Sentencing Guidelines for United States Courts, 60 Fed. Reg. 25074, 25086-87 (May 10, 1995).

42 USSG App. C, amend. 528 (November 1, 1995).

43 USSG App. C, amend. 568 (November 1, 1997).

44 See USSG App. C, amend. 268 (Nov. 1, 1989); Baker, 16 F.3d at 857 (relying on the removal of this language); Calverley, 11 F.3d at 511 & n.14 (calling for 

the court to reconsider its precedents en banc given the Commission’s deletion of the “substantially equivalent” language).

45 USSG App. C, amend. 642 (Nov. 1, 2002).

46 USSG App. C, amend. 642 (November 1, 2002).

47 USSG App. C, amend. 674 (November 1, 2004).

48 Id. 

Appendix A-17
49 The career offender guideline has not been substantially revised since 2004. A 2007 amendment altering the way multiple prior sentences are counted for 

criminal history purposes had some impact on the counting of multiple 18 U.S.C. § 924(c) convictions for career offender purposes. USSG App. C, amend. 709 

(Nov. 1, 2007) (amending §4B1.2 comment. (n.1)).

50 Amendment on “Crime of Violence” and Related Issues, submitted to Congress on Jan. 21, 2016, 81 FR 4741 (Jan. 27, 2016).

Appendix A-18
APPENDIX B 

CURRENT SENTENCING PRACTICES: DATA COLLECTION AND ANALYSIS PROCESS

Appendix B-1
Appendix B-2
Records Collection

Pursuant to 28 U.S.C. § 994(w), a district court is 

directed to submit to the Commission the following sentencing 

documents in each felony or Class A misdemeanor case: the 

presentence report (PSR), the judgment (J&C), the statement of 

reasons form (SOR), the indictment or other charging 

instrument, and any plea agreement.1

 The data reported in the 

“Current Sentencing Practices” section of Part IV is derived by 

analyzing the Commission’s electronic database of information 

that is routinely collected by the Commission on an annual 

basis, for all federal cases for which the Commission receives 

full documentation in accordance with 28 U.S.C. § 994(w). 

The Commission collects information only on criminal 

cases involving at least one felony or Class A misdemeanor 

conviction, with the exception that death penalty case 

information is not submitted to the Commission because these 

cases are considered non-guidelines cases.2 Records of any 

federal criminal case involving petty offenses only, in which 

the defendant was acquitted of all charges, or where all charges 

were dismissed are not maintained by the Commission. Cases 

where a diversionary sentence was imposed also are not kept in 

the Commission’s individual offender datafile. Finally, cases 

are not included if all of the offense conduct occurred before 

the guidelines were promulgated. 

Upon receipt, the electronic documents are reviewed to 

determine if they are missing critical documents (the 

Commission considers the PSR, J&C, and SOR to be the three 

critical documents for data collection) or if the documents 

provided do not match the document status information 

submitted by the district (e.g., if the document status states that 

a PSR was attached but the Commission did not receive a PSR, 

the case is rejected). If a case is rejected, an e-mail describing 

the problem is sent to the district that submitted the case. If the 

case is accepted, it proceeds into an analytical queue for 

processing. 

At the analytic phase of case processing, Commission 

staff review each of the documents and extract demographic, 

sentencing, and guideline application information for each 

case. First, the PSR is reviewed and demographic information 

is entered. Additional identifiers are also taken from the PSR 

to help the Commission match its data to other federal criminal 

datafiles.3 Next, the Commission enters the case disposition 

(guilty plea or trial), statutes for each count of conviction, 

statutory ranges for each count of conviction, and offense type. 

The statutes of conviction are coded from the J&C and the 

statutory ranges are coded from the PSR. The offense type and 

the disposition are entered based on information taken from 

both documents. The J&C is also reviewed for sentence length 

information and financial aspects of the offender’s sentence.4 

Guideline application information is then extracted from the 

PSR, adjusting for any factual determinations that the court has 

documented on the SOR.5 The SOR is then further reviewed to 

determine the final sentencing range and information about the 

sentence relative to the guideline range.6 Finally, for any case 

involving a sentence outside of the guideline range, 

information is collected about the reasons why the sentence is 

outside of the range. 

Data Analysis

In fiscal year 2014, the Commission’s individual 

datafile included 75,836 cases. Of the 75,836 cases, the 

Appendix B-3
Commission received complete guideline application 

information for 67,672 cases. Of these, a total of 2,269 (3.4%) 

involved career offenders sentenced pursuant to §4B1.1. 

For these 2,269 cases, the Commission was able to 

analyze and provide data describing the career offender 

population in fiscal year 2014. Specifically, the Commission 

gathered and analyzed relevant offender and offense 

characteristics, including demographic, the types of underlying 

offenses, and basic criminal history information. Additionally, 

the Commission used the available information to analyze the 

overall impact of the career offender guideline, as well as the 

complete range of sentencing information. This information is 

set forth in Part III of the report.

 In order to examine additional relevant data, it was also 

necessary for the Commission to conduct a “special coding 

project,” in which the relevant sentencing documents 

(particularly the PSRs) were individually reexamined, and the 

desired information was collected (“coded”) and entered into a 

database. In particular, a special coding project was necessary 

to further supplement the criminal history data in its offender 

datafile. The Commission conducted this special coding 

project by examining a representative 20 percent random 

sample (457 offenders) of all 2,269 federal offenders sentenced 

using the career offender provision (and for which the 

Commission received full documentation) in fiscal year 2014. 

As part of this special coding project, the Commission 

extracted information on offenders’ prior criminal history 

events from submitted PSRs. Criminal history events were 

defined as sentencings summarized in the PSR that included 

complete information on arrest date, jurisdiction, and offense 

of conviction. Single criminal history events can be comprised 

of any number of individual offenses; the number and types of 

those offenses were extracted for each case. 

Prior offenses were then categorized into one of 100 

standardized offense codes developed by the independent 

research organization NORC at the University of Chicago. As 

discussed in more detail in Appendix C, as part of other 

independent research projects, NORC has conducted extensive 

research regarding state and federal criminal codes and 

repository data definitions to distill the unique state specific 

offenses from RAP sheets from 25,000 criminal justice 

agencies nationwide into 100 standardized offense codes that 

describe offenses in a common format to allow comparison of 

offense types and severity across jurisdictions. Using a list of 

consolidated codes is necessary because criminal records 

repositories are primarily designed to store their records in 

ways that accurately reflect the requirements of each state or 

federal repository, such as the criminal code for that 

jurisdiction. As a result, any two repositories are likely to use 

many unique text strings to indicate the nature of the criminal 

charges and actions taken in response to those charges. 

For purposes of its analysis, the Commission further 

consolidated these 100 codes into 32 more general offense 

types.7

 In making these classifications we were not bound by 

the “categorical approach” used to analyze whether an offense 

is a crime of violence under the guidelines. Such an analysis 

would have required delving into the elements of each statute 

of conviction, an impractical approach. These 32 offense types 

are: Murder, Unspecified Manslaughter, Non-negligent 

Manslaughter, Negligent Manslaughter, Kidnapping, Statutory 

Rape, Forcible Sex Offense, Robbery, Aggravated Assault, 

Appendix B-4
Simple Assault, Unspecified Assault, Intimidation, Hit and Run 

with Injury, Extortion, Child Abuse, Other Violent Offense, 

Drug Trafficking, Burglary, Arson, Fraud, Larceny, Other 

Property Offense, Drug Possession, Unspecified Drug Offense, 

Escape or Flight, Weapons Offense, Court Violation, Rioting, 

Traffic Offense, DUI/DWI, Public Order Offense, 

Immigration, and All Other Offenses. A more detailed 

discussion of this standardization process is available from the 

public data briefing presented by the Commission during the 

public comment period on the published amendment to the 

career offender guideline.8

Appendix B-5
1

 28 U.S.C. § 994(w) (requiring the chief judge of each federal judicial district to ensure that these documents are submitted within 30 days of entry of judgment 

in a criminal case).

2

 The Guidelines Manual specifies that the sentencing guidelines do not apply to Class B or C misdemeanors at USSG §1B1.2(a). Additionally, the sentencing 

guidelines do not specifically contain any provisions that include the death penalty. If a statute of conviction includes a provision for the death penalty and the 

offender is ultimately sentenced to death, then this statutory punishment “trumps” the guideline sentence.

3

 Identifiers include social security number, Federal Bureau of Investigation number, U.S. Marshals Service number, Probation and Pretrial Services Automated 

Case Tracking Electronic Case Management System (PACTS/ECM) identification number, Bureau of Immigration and Customs Enforcement (ICE) number, and 

probation office. Twice each year, the Commission matches its data to data maintained by the Administrative Office of the U.S. Courts and notifies districts of 

any cases that have not been received by the Commission. The Commission undertakes this effort to assess the completeness of its datafile and to make efforts to 

improve it. The Commission will also request any documents missing from cases that have been received. Additionally, the Commission may match its data 

against these and other datafiles for special projects.

4

 The J&C details all aspects of the offender’s sentence. The Commission collects many pieces of information about the sentence, including the length of the 

sentence, whether all or part of the sentence is time served, if any credit is given under USSG §5G1.3 (Imposition of a Sentence on a Defendant Subject to an 

Undischarged Term of Imprisonment), months of alternative confinement, months of probation or supervised release, hours of community service, amount of 

special assessment, fine amount, cost of supervision, and restitution amount.

5

 This includes the amendment year of the guidelines manual used to determine the base offense level (BOL), the specific offense characteristics (SOCs), the 

Chapter Three adjustments, criminal history points, multiple count levels, drug/chemical types and weights, and loss amounts.

6

 The SOR is part of the same form as the J&C (AO245B). The SOR details information about final court findings with respect to any changes made at 

sentencing to information documented in the PSR as well as information about whether the sentence falls inside or outside of the guideline range and why. The 

Commission collects much of this information, including the final offense level, criminal history category, un-trumped (i.e., statutory constraints not taken into 

account) guideline range, changes to guideline application from the PSR, court findings on the mandatory minimum status, whether the sentence is within/outside 

the guideline range, the reasons why the sentence is outside the range, and the attribution of the origin of the departure/sentence outside the guideline system.

7

 These 32 consolidated offense categories do not coincide with the 32 federal offenses reported annually in the Commission’s Sourcebook on Federal 

Sentencing Statistics.

8

 See U.S. SENTENCING COMM’N, PUBLIC DATA BRIEFING: “Crime of Violence” and Related Issues, available at http://www.ussc.gov/videos/crime-violencedata-briefing. As noted during that briefing, the most common type of offense comprising all of the adult prior criminal history events for the career offender 

sample was drug trafficking, followed by traffic offenses, drug possession, public order offenses, and larceny.

Appendix B-6
APPENDIX C 

RECIDIVISM: DATA COLLECTION AND ANALYSIS PROCESS

Appendix C-1
Appendix C-2
Overview

Previous Commission recidivism studies required 

manual coding of criminal records from state and federal 

criminal history records (i.e., RAP sheets). The Commission’s 

current recidivism study has used technological advances to 

greatly expand the number of federal offender records analyzed 

as compared to previous Commission studies by collecting 

RAP sheets electronically. This appendix describes this data 

collection and analysis process.

The Commission entered into a data sharing agreement 

with the FBI’s Criminal Justice Information Services (CJIS) 

Division and the Administrative Office of the United States 

Courts (AO) to provide the Commission with secure electronic 

access to criminal history records through the CJIS’s Interstate 

Identification Index (III) and the International Justice and 

Public Safety Network (NLETS). Results received using this 

system provided an individual’s criminal history record 

maintained by all U.S. states, the District of Columbia, and 

federal agencies.1

 Once automated records were obtained, the 

Commission went through an extensive process to organize and 

standardize offense and court disposition descriptions across all 

reporting agencies with the assistance of NORC at the 

University of Chicago (NORC). The resulting database 

contained 30,182 offenders who had valid identifying 

information and were released during the study period, which 

included primarily calendar year 2005 (25,431 offenders), but 

was extended before and after this year to expand the sample 

for certain subgroups of offenders (4,751 offenders). This 

process, described below, began in 2014 and the database was 

completed in August 2015. 

Collecting the Study Group from Commission and 

Other Records

The Commission identified and processed the criminal 

records of more than 35,000 offenders who had a valid FBI 

number in either Commission or Bureau of Prisons (BOP)

records and were released during the study period. Relevant to 

this report, the extended study group included U.S. citizen 

offenders sentenced under USSG §4B1.1 (Career Offenders) 

re-entering the community in calendar years 2004 and 2006 (in 

addition to those already included in the 2005 cohort). These 

offenders included only those: 

• who are citizens;

• who re-entered the community after discharging

their sentences of incarceration or by

commencing a term of probation from 2004

through 2006;

• whose pre-sentence investigation report was

submitted to the Commission;

• who have valid FBI numbers which could be

located in criminal history repositories (in at

least one of the 50 states, DC, or federal

records);

• who were not reported dead, escaped, or

detained; and

• whose federal sentence was not vacated.

For offenders released from prison, the BOP provided 

release dates, identifying information, some reincarceration 

information, and other relevant information which allowed the 

Commission to identify offenders who could not be reliably 

studied (e.g., those who died while incarcerated). For 

Appendix C-3
offenders placed on probation, the AO provided identifying 

information, some revocation information, and other relevant 

information (e.g., death while under supervision). 

Processing the Criminal Records

Following a practice pioneered by the U.S. Department 

of Justice’s Bureau of Justice Statistics (BJS),2 the 

Commission entered into a data sharing agreement with the 

FBI’s CJIS Division and the Administrative Office of the 

United States Courts to provide the Commission with 

electronic access to criminal history records through the CJIS’s 

Interstate Identification Index (III) using secure data exchange, 

which protected these confidential records from inadvertent 

disclosure. The CJIS’s III allows authorized agencies to 

determine whether any federal or state repository has criminal 

history records on an individual. When an offender’s records 

were found, each central criminal records repository, 

responding to III requests over the NLETS network, provided 

the records via the Administrative Office’s Access to Law 

Enforcement System (ATLAS) secure interface to the 

Commission. As a result, offender criminal history records 

were collected from all state and federal agencies in which 

those records resided. 

The ATLAS system returns the literal text in the RAP 

sheets in the format in which the original records appear: dates 

of criminal justice system actions (e.g., arrests); offense 

categories which indicate the charges in the terminology used 

by that agency (e.g., text strings or numeric categories); 

subsequent action tied to arrest charges (e.g., charges filed by 

prosecutors, court findings of guilt, etc.); and sentencing and 

corrections information. All of these records are subject to 

availability from the originating source. 

The ATLAS system also “parses” records from RAP 

sheets received from all the states, the District of Columbia, 

and federal agencies. Parsing records involves organizing key 

data elements into logical components: sorting into separate 

criminal justice system stages (arrest, court, and correctional 

events); organizing all records by date; and linking related 

elements (such as court action taken in response to an arrest) 

into a single cycle. Key data elements include offender 

identifiers, dates of key actions (such as arrests and 

convictions), the criminal charges, and outcomes such as 

convictions and sentencing information. The parsing process 

collates the multi-state records into a uniform structure, 

regardless of the state, and produces a database for all 

individuals with a valid FBI number who were found in one or 

more repositories across the country. 

The initial extraction process began in September 2014 

and was completed in April 2015. Commission staff examined 

the raw RAP sheet information and compared it to the parsed 

records, looking for missing or erroneous translation of 

information from its raw form to the parsed record. This step 

is important because criminal history record repositories are 

continually updating and improving their information systems 

in ways that change the location or format of key text strings, 

making software written for an earlier computer platform 

obsolete for purposes of accurately parsing the data in its 

intended format and detail. Commission staff worked with 

ATLAS staff to resolve possible issues in about one-half of the 

repositories, and as a result records for several state 

Appendix C-4
repositories had to be reprocessed after changes to the parsing 

procedures. In April 2015, this process was complete. 

Standardizing the Criminal Records

 Following the collection of the RAP sheet records on 

study group offenders, the Commission contracted with NORC 

to consolidate all records on each offender, organize the 

records chronologically, and remove duplicative or extraneous 

material.3 Minor traffic offenses (e.g., speeding) were 

removed, but serious traffic-related offenses (e.g., driving 

while intoxicated) were not removed from the analysis. 

Following these preliminary process steps, NORC researched 

state and federal criminal codes and repository data definitions 

to assign each unique state offense and disposition description 

to a single uniform description. This step was needed because 

criminal records repositories are primarily designed to store 

their records in ways that accurately reflect the requirements of 

each state or federal repository, such as the criminal code for 

that jurisdiction. As a result, any two repositories are likely to 

use many unique text strings to indicate the nature of the 

criminal charges and actions taken in response to those 

charges. Each jurisdiction’s information was standardized by 

NORC for national-level analysis that reflected common 

definitions. 

Using research on each repository, NORC created 

separate offense “crosswalks” for every state and the District of 

Columbia, as well as a separate crosswalk for federal 

repository records. These crosswalks translate any given 

jurisdiction’s arrest and court records into standardized arrest 

and court codes. Through this standardization, all records, 

regardless of originating source, were brought into a common 

framework.

Within each arrest and court cycle, arrest and 

disposition of charges were categorized using standardized 

coding which generally follows the BJS model.4

 A charge 

severity index was created which incorporates both criminal 

law classification (e.g., felony or misdemeanor) and offense 

severity. Offense severity was first separated into four broad 

categories (violent, property, drug, and public order), and then 

into 16 major arrest charge codes5 and 98 detailed arrest charge 

codes used by BJS.6

 The charge severity index ranks murder 

of a public officer as the most serious charge, followed by 26 

other detailed violent charge codes. These detailed violent 

charge codes are followed in order of severity by five drug 

trafficking, 16 property, 10 other drug, and 40 public order 

detailed charge codes. Additionally, court events are coded for 

charge disposition. After ordering, each charge is assigned a 

sequence number, and the top three for each event are retained.

Finally, by assembling all federal and state records, the 

database provides a complete criminal record for each 

individual for which valid records could be found, across any 

jurisdiction maintaining data on that individual. After the 

receipt of data from NORC, the Commission again reviewed 

all records for completeness and questionable entries. From 

the 36,007 offender records initially processed through 

ATLAS, 1,812 records were eliminated for reasons including 

apparent death during the study period, missing criminal 

history records, and missing or suspect information as to 

United States citizenship. Additionally, 4,013 offenders were 

released from BOP on detainer, which ordinarily indicates 

transfer of custody to state court or transfer to a state 

Appendix C-5
correctional facility following completion of their federal 

sentence. These detained offenders were not released into the 

community during the study period, and their whereabouts are 

not recorded in the data; therefore, they were also withheld 

from the study. 

1 Of the 262,284 arrest records processed for 2005 releases, these records were almost entirely U.S. state and federal records. However, also included are 345 

(0.1%) territorial (non-federal) arrests provided by U.S. territories, primarily by Puerto Rico and the U.S. Virgin Islands.

2

 See Matthew Durose, Alexia Cooper, and Howard Snyder, Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010, at 16 (April 

2014), http://www.bjs.gov/content/pub/pdf/rprts05p0510.pdf. 

3

 Instances of arrest or sentencing that appeared to be duplicates of existing events were removed by NORC. Certain administrative records were removed after 

review of each state’s procedures demonstrated that some entries were likely to be either reports of non-offending contact with law enforcement (e.g., registration 

as a sex offender) or other information that pertained to the offender but was not a criminal justice event. Some states included historical data within cycles 

which caused issues with correct parsing of criminal history information; in these cases, the first court disposition for that cycle was retained and all others 

removed. Arrest entries that occurred outside of the eight-year follow-up period were removed from the datafiles and were not used to ascertain recidivism.

4

 See Durose et al., supra note 2, at 22.

5

 The major arrest charge codes, as ranked by the Commission beginning with the most serious, were homicide, rape or sexual assault, robbery, assault, other 

violent offense, drug trafficking, burglary, larceny, motor vehicle theft, fraud, other property offense, drug possession, other drug offense, weapons offense (e.g., 

unlawful sale, etc.), driving under the influence, and other public order offense. 

6

 However, unlike the BJS major and detailed charge code rankings, the Commission chose to rank drug trafficking offenses immediately behind violent 

offenses in order of severity.

Appendix C-6
APPENDIX D 

STATUTORY DEFINITIONS

Appendix D-1
Appendix D-2
“CRIME OF VIOLENCE” IN THE COMMISSION’S

ORGANIC STATUTE

28 U.S.C. § 994 (Duties of the Commission) 

(h) The Commission shall assure that the guidelines specify a

sentence to a term of imprisonment at or near the maximum

term authorized for categories of defendants in which the

defendant is eighteen years old or older and

(1) has been convicted of a felony that is— 

(A) a crime of violence; or

(B) 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; and

(2) has previously been convicted of two or more prior 

felonies, each of which is— 

(A) a crime of violence; or

(B) 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.

(i) The Commission shall assure that the guidelines specify a

sentence to a substantial term of imprisonment for categories of

defendants in which the defendant—

(1) has a history of two or more prior Federal, State, or

local felony convictions for offenses committed on

different occasions;

(2) committed the offense as part of a pattern of criminal 

conduct from which the defendant derived a substantial 

portion of the defendant's income;

(3) committed the offense in furtherance of a conspiracy 

with three or more persons engaging in a pattern of 

racketeering activity in which the defendant participated 

in a managerial or supervisory capacity;

(4) committed a crime of violence that constitutes a

felony while on release pending trial, sentence, or

appeal from a Federal, State, or local felony for which

he was ultimately convicted; or

(5) committed a felony that is set forth in section 401 or

1010 of the Comprehensive Drug Abuse Prevention and

Control Act of 1970 (21 U.S.C. 841 and 960), and that

involved trafficking in a substantial quantity of a

controlled substance.

(ii) The Commission shall insure that the guidelines reflect the

general appropriateness of imposing a sentence other than

imprisonment in cases in which the defendant is a first offender

who has not been convicted of a crime of violence or an

otherwise serious offense, and the general appropriateness of

imposing a term of imprisonment on a person convicted of a

crime of violence that results in serious bodily injury. 

Appendix D-3
RELEVANT STATUTORY CRIME OF VIOLENCE

DEFINITIONS

Crimes: 18 U.S.C. § 16 

The term “crime of violence” means—

(a) an offense that has as an element the use, attempted

use, or threatened use of physical force against the

person or property of another, or

(b) any other offense that is a felony and that, by its

nature, involves a substantial risk that physical force

against the person or property of another may be used in

the course of committing the offense.

Firearms: 18 U.S.C. § 924(c)(3) 

For purposes of this subsection the term “crime of violence” 

means an offense that is a felony and—

(A) has as an element the use, attempted use, or

threatened use of physical force against the person or

property of another, or

(B) that by its nature, involves a substantial risk that

physical force against the person or property of another

may be used in the course of committing the offense.

Bail Reform Act: 18 U.S.C. § 3156(a)(4) 

[T]he term “crime of violence” means—

(A) an offense that has an element of the offense the

use, attempted use, or threatened use of physical force

against the person or property of another;

(B) any other offense that is a felony and that, by its

nature, involves a substantial risk that physical force

against the person or property of another may be used

in the course of committing the offense; or

(C) any felony under chapter 109A, 110, or 117[.] 

AGGRAVATED FELONY DEFINITION

Immigration and Nationality: 8 U.S.C. § 1101(a)(43) 

The term “aggravated felony” means— 

*** 

(F) a crime of violence (as defined in section 16 of Title

18, but not including a purely political offense) for which

the term of imprisonment at least one year;

The term applies to an offense described in this paragraph 

whether in violation of Federal or State law and applies to such 

an offense in violation of the law of a foreign country for which 

the term of imprisonment was completed within the previous 15 

years. Notwithstanding any other provision of law (including 

any effective date), the term applies regardless of whether the 

conviction was entered before, on, or after September 30, 1996. 

Appendix D-4
VIOLENT FELONY AND SERIOUS VIOLENT FELONY

DEFINITIONS

Armed Career Criminal Act: 18 U.S.C. § 924(e)(2)(B) 

[T]he term “violent felony” means any crime punishable by

imprisonment for a term exceeding one year, or any act of

juvenile delinquency involving the use or carrying of a firearm,

knife, or destructive device that would be punishable by

imprisonment for such term if committed by an adult, that—

(i) has as an element the use, attempted use, or threatened

use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use 

of explosives, or otherwise involves conduct that 

presents a serious potential risk of physical injury to 

another[.] 

“Three Strikes” Enhancement: 18 U.S.C. § 3559(c)(2)(F)

[T]he term “serious violent felony” means—

(i) a Federal or State offense, by whatever designation

and wherever committed, consisting of murder (as

described in section 1111); manslaughter other than 

involuntary manslaughter (as described in section 

1112); assault with intent to commit murder (as 

described in section 113(a)); assault with intent to 

commit rape; aggravated sexual abuse and sexual abuse 

(as described in sections 2241 and 2242); abusive 

sexual contact (as described in sections 2244 (a)(1) and 

(a)(2)); kidnapping; aircraft piracy (as described in 

section 46502 of Title 49); robbery (as described in 

section 2111, 2113, or 2118); carjacking (as described 

in section 2119); extortion; arson; firearms use; 

firearms possession (as described in section 924(c)); or 

attempt, conspiracy, or solicitation to commit any of the 

above offenses; and 

(ii) any other offense punishable by a maximum term of

imprisonment of 10 years or more that has as an

element the use, attempted use, or threatened use of

physical force against the person of another or that, by

its nature, involves a substantial risk that physical force

against the person of another may be used in the course

of committing the offense[.]

Appendix D-5