2778 Federal Register / Vol. 77, No. 12 / Thursday, January 19, 2012 / Notices 

SUMMARY: The Treasury Department’s 

Office of Foreign Assets Control 

(‘‘OFAC’’) is publishing the name of an 

entity whose property and interests in 

property have been unblocked pursuant 

to Executive Order 13315 of August 28, 

2003, ‘‘Blocking Property of the Former 

Iraqi Regime, Its Senior Officials and 

Their Family Members, and Taking 

Certain Other Actions,’’ as amended by 

Executive Order 13350 of July 30, 2004. 

DATES: The removal of this entity from 

the SDN List is effective as of January 

10, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Assistant Director, Compliance 

Outreach & Implementation, Office of 

Foreign Assets Control, Department of 

the Treasury, Washington, DC 20220, 

tel.: (202) 622–2490. 

SUPPLEMENTARY INFORMATION: 

Electronic and Facsimile Availability 

The SDN List and additional 

information concerning OFAC are 

available from OFAC’s web site 

(www.treasury.gov/ofac). Certain general 

information pertaining to OFAC’s 

sanctions programs also is available via 

facsimile through a 24-hour fax-ondemand service, tel.: (202) 622–0077. 

Background 

On August 28, 2003, the President 

issued Executive Order 13315 (the 

‘‘Order’’) pursuant to the International 

Emergency Economic Powers Act, 50 

U.S.C. 1701 et seq., the National 

Emergencies Act, 50 U.S.C. 1601 et seq., 

section 5 of the United Nations 

Participation Act, as amended, 22 U.S.C. 

287c, section 301 of title 3, United 

States Code, and in view of United 

Nations Security Council Resolution 

1483 of May 22, 2003. In the Order, the 

President expanded the scope of the 

national emergency declared in 

Executive Order 13303 of May 22, 2003, 

to address the unusual and 

extraordinary threat to the national 

security and foreign policy of the United 

States posed by obstacles to the orderly 

reconstruction of Iraq, the restoration 

and maintenance of peace and security 

in that country, and the development of 

political, administrative, and economic 

institutions in Iraq. The Order blocks 

the property and interests in property 

of, inter alia, persons listed on the 

Annex to the Order. 

On July 30, 2004, the President issued 

Executive Order 13350, which, inter 

alia, replaced the Annex to Executive 

Order 13315 with a new Annex that 

included the names of individuals and 

entities, including individuals and 

entities that had previously been 

designated under Executive Order 

12722 and related authorities. 

The Department of the Treasury’s 

Office of Foreign Assets Control has 

determined that the entity identified 

below, whose property and interests in 

property were blocked pursuant to 

Executive Order 13315, as amended, 

should be removed from the SDN List. 

The following designation is removed 

from the SDN List: 

Matrix Churchill Corporation, 5903 

Harper Road, Cleveland, OH 44139 

[IRAQ2] 

The removal of this entity’s name 

from the SDN List is effective as of 

January 10, 2012. All property and 

interests in property of the entity that 

are in or hereafter come within the 

United States or the possession or 

control of United States persons are now 

unblocked. 

Dated: January 9, 2012. 

Adam J. Szubin, 

Director, Office of Foreign Assets Control. 

[FR Doc. 2012–963 Filed 1–18–12; 8:45 am] 

BILLING CODE 4810–AL–P 

UNITED STATES SENTENCING 

COMMISSION 

Sentencing Guidelines for United 

States Courts 

AGENCY: United States Sentencing 

Commission. 

ACTION: Notice of proposed amendments 

to sentencing guidelines, policy 

statements, and commentary. Request 

for public comment, including public 

comment regarding retroactive 

application of any of the proposed 

amendments. Notice of public hearing. 

SUMMARY: Pursuant to section 994(a), 

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

Code, the United States Sentencing 

Commission is considering 

promulgating certain amendments to the 

sentencing guidelines, policy 

statements, and commentary. This 

notice sets forth the proposed 

amendments and, for each proposed 

amendment, a synopsis of the issues 

addressed by that amendment. This 

notice also sets forth a number of issues 

for comment, some of which are set 

forth together with the proposed 

amendments; some of which are set 

forth independent of any proposed 

amendment; and one of which 

(regarding retroactive application of 

proposed amendments) is set forth in 

the SUPPLEMENTARY INFORMATION portion 

of this notice. 

The proposed amendments and issues 

for comment in this notice are as 

follows: (1) A proposed amendment on 

fraud and related offenses, including (A) 

An issue for comment in response to the 

issue of harm to the public and financial 

markets, as raised by each of two 

directives to the Commission in section 

1079A of the Dodd-Frank Wall Street 

Reform and Consumer Protection Act, 

Public Law 111–203; (B) a proposed 

change to § 2B1.4 (Insider Trading) to 

implement the directive in section 

1079A(a)(1) of that Act, and related 

issues for comment on insider trading, 

securities fraud, and similar offenses; 

(C) proposed changes to § 2B1.1 (Theft, 

Property Destruction, and Fraud) 

regarding mortgage fraud offenses to 

implement the directive in section 

1079A(a)(2) of that Act, and a related 

issue for comment on mortgage fraud 

and financial institution fraud; and (D) 

issues for comment on the impact of the 

loss table in § 2B1.1(b)(1) and the 

victims table in § 2B1.1(b)(2) in cases 

involving relatively large loss amounts; 

(2) a proposed amendment on offenses 

involving controlled substances and 

chemical precursors, including (A) an 

issue for comment on offenses involving 

N–Benzylpiperazine (BZP); and (B) a 

proposed change to § 2D1.11 

(Unlawfully Distributing, Importing, 

Exporting or Possessing a Listed 

Chemical; Attempt or Conspiracy) that 

would create a guidelines ‘‘safety valve’’ 

provision for offenses involving 

chemical precursors that would be 

analogous to the provision in § 2D1.1 

(Unlawful Manufacturing, Importing, 

Exporting, or Trafficking (Including 

Possession with Intent to Commit These 

Offenses); Attempt or Conspiracy); (3) a 

proposed amendment on human rights 

offenses, including (A) a proposed 

guideline applicable to human rights 

offenses; (B) proposed changes to 

§ 2L2.1 (Trafficking in a Document 

Relating to Naturalization, Citizenship, 

or Legal Resident Status, or a United 

States Passport; False Statement in 

Respect to the Citizenship or 

Immigration Status of Another; 

Fraudulent Marriage to Assist Alien to 

Evade Immigration Law) and § 2L2.2 

(Fraudulently Acquiring Documents 

Relating to Naturalization, Citizenship, 

or Legal Resident Status for Own Use; 

False Personation or Fraudulent 

Marriage by Alien to Evade Immigration 

Law; Fraudulently Acquiring or 

Improperly Using a United States 

Passport) to address cases in which the 

offense of conviction is for immigration 

or naturalization fraud but the 

defendant had committed a serious 

human rights offense; and (C) related 

issues for comment on human rights 

offenses; (4) a proposed amendment to 

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Federal Register / Vol. 77, No. 12 / Thursday, January 19, 2012 / Notices 2779 

§ 2L1.2 (Unlawfully Entering or 

Remaining in the United States) to 

respond to a circuit conflict over 

application of the term ‘‘sentence 

imposed’’ in that guideline when the 

defendant’s original ‘‘sentence 

imposed’’ was lengthened after the 

defendant was deported; (5) a proposed 

amendment presenting options for 

specifying the types of documents that 

may be considered in determining 

whether a particular prior conviction 

fits within a particular category of 

crimes for purposes of specific guideline 

provisions, and related issues for 

comment; (6) a proposed amendment to 

§ 4A1.2 (Definitions and Instructions for 

Computing Criminal History) to respond 

to an application issue regarding when 

a defendant’s prior sentence for driving 

while intoxicated or driving under the 

influence (and similar offenses by 

whatever name they are known) is 

counted toward the defendant’s 

criminal history score; (7) a proposed 

amendment to § 4B1.2 (Definitions of 

Terms Used in Section 4B1.1) to 

respond to differences among the 

circuits on when, if at all, burglary of a 

non-dwelling qualifies as a crime of 

violence for purposes of the guidelines, 

and related issues for comment; (8) a 

proposed amendment to § 5G1.2 

(Sentencing on Multiple Counts of 

Conviction) to respond to an application 

issue regarding the applicable guideline 

range in a case in which the defendant 

is sentenced on multiple counts of 

conviction, at least one of which 

involves a mandatory minimum 

sentence that is greater than the 

minimum of the otherwise applicable 

guideline range; (9) a proposed 

amendment to § 5K2.19 (PostSentencing Rehabilitative Efforts) to 

respond to Pepper v. United States, 131 

S.Ct. 1229 (2011), which held, among 

other things, that a defendant’s postsentencing rehabilitative efforts may be 

considered when the defendant is 

resentenced after appeal; and (10) a 

proposed amendment in response to 

miscellaneous issues arising from 

legislation recently enacted, including 

(A) proposed changes to § 2P1.2 

(Providing or Possessing Contraband in 

Prison) to respond to the Cell Phone 

Contraband Act of 2010, Public Law 

111–225, and (B) proposed changes to 

Appendix A (Statutory Index) to address 

certain criminal provisions in the 

Prevent All Cigarette Trafficking Act of 

2009, Public Law 111–154, the Indian 

Arts and Crafts Amendments Act of 

2010, Public Law 111–211, the Animal 

Crush Video Prohibition Act of 2010, 

Public Law 111–294, and certain other 

statutes, and a related issue for 

comment. 

DATES: (1) Written public comment.— 

Written public comment regarding the 

proposed amendments and issues for 

comment set forth in this notice, 

including public comment regarding 

retroactive application of any of the 

proposed amendments, should be 

received by the Commission not later 

than March 19, 2012. 

(2) Public hearing.—The Commission 

plans to hold a public hearing regarding 

the proposed amendments and issues 

for comment set forth in this notice. 

Further information regarding the 

public hearing, including requirements 

for testifying and providing written 

testimony, as well as the location, time, 

and scope of the hearing, will be 

provided by the Commission on its Web 

site at www.ussc.gov. 

ADDRESSES: Public comment should be 

sent to: United States Sentencing 

Commission, One Columbus Circle NE., 

Suite 2–500, Washington, DC 20002– 

8002, Attention: Public Affairs. 

FOR FURTHER INFORMATION CONTACT: 

Jeanne Doherty, Public Affairs Officer, 

Telephone: (202) 502–4502. 

SUPPLEMENTARY INFORMATION: The 

United States Sentencing Commission is 

an independent agency in the judicial 

branch of the United States 

Government. The Commission 

promulgates sentencing guidelines and 

policy statements for federal courts 

pursuant to 28 U.S.C. 994(a). The 

Commission also periodically reviews 

and revises previously promulgated 

guidelines pursuant to 28 U.S.C. 994(o) 

and submits guideline amendments to 

the Congress not later than the first day 

of May each year pursuant to 28 U.S.C. 

994(p). 

The proposed amendments in this 

notice are presented in one of two 

formats. First, some of the amendments 

are proposed as specific revisions to a 

guideline or commentary. Bracketed text 

within a proposed amendment indicates 

a heightened interest on the 

Commission’s part in comment and 

suggestions regarding alternative policy 

choices; for example, a proposed 

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

that the Commission is considering, and 

invites comment on, alternative policy 

choices regarding the appropriate level 

of enhancement. Similarly, bracketed 

text within a specific offense 

characteristic or application note means 

that the Commission specifically invites 

comment on whether the proposed 

provision is appropriate. Second, the 

Commission has highlighted certain 

issues for comment and invites 

suggestions on how the Commission 

should respond to those issues. 

The Commission requests public 

comment regarding whether, pursuant 

to 18 U.S.C. 3582(c)(2) and 28 U.S.C. 

994(u), any proposed amendment 

published in this notice should be 

included in subsection (c) of § 1B1.10 

(Reduction in Term of Imprisonment as 

a Result of Amended Guideline Range 

(Policy Statement)) as an amendment 

that may be applied retroactively to 

previously sentenced defendants. The 

Commission lists in § 1B1.10(c) the 

specific guideline amendments that the 

court may apply retroactively under 18 

U.S.C. 3582(c)(2). The background 

commentary to § 1B1.10 lists the 

purpose of the amendment, the 

magnitude of the change in the 

guideline range made by the 

amendment, and the difficulty of 

applying the amendment retroactively 

to determine an amended guideline 

range under § 1B1.10(b) as among the 

factors the Commission considers in 

selecting the amendments included in 

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

public comment should address each of 

these factors. 

Additional information pertaining to 

the proposed amendments described in 

this notice may be accessed through the 

Commission’s Web site at 

www.ussc.gov. 

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

USSC Rules of Practice and Procedure, Rule 

4.4. 

Patti B. Saris, 

Chair. 

1. Dodd-Frank/Fraud 

Synopsis of Proposed Amendment: 

This proposed amendment is a multipart amendment that continues the 

Commission’s multi-year review of 

fraud offenses to ensure that the 

guidelines provide appropriate penalties 

(1) in cases involving securities fraud 

and similar offenses and (2) in cases 

involving mortgage fraud and financial 

institution fraud. 

Specifically, the proposed 

amendment implements the two 

directives to the Commission in the 

Dodd-Frank Wall Street Reform and 

Consumer Protection Act, Public Law 

111–203 (the ‘‘Act’’). The first directive 

relates to securities fraud and similar 

offenses, and the second directive 

relates to mortgage fraud and financial 

institution fraud. 

Each directive requires the 

Commission to ‘‘review and, if 

appropriate, amend’’ the guidelines and 

policy statements applicable to the 

offenses covered by the directive and 

consider whether the guidelines 

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2780 Federal Register / Vol. 77, No. 12 / Thursday, January 19, 2012 / Notices 

appropriately account for the potential 

and actual harm to the public and the 

financial markets from those offenses. 

Each directive also requires the 

Commission to ensure that the 

guidelines reflect (i) The serious nature 

of the offenses, (ii) the need for 

deterrence, punishment, and 

prevention, and (iii) the effectiveness of 

incarceration in furthering those 

objectives. 

Part A responds to the issue of harm 

to financial markets, which is raised by 

both directives; Part B responds to the 

directive on securities fraud and similar 

offenses; and Part C responds to the 

directive on mortgage fraud and 

financial institution fraud. 

The proposed amendment also 

includes a Part D, which responds to 

concerns suggesting that the impact of 

the loss table or the victims table (or the 

combined impact of the loss table and 

the victims table) may overstate the 

culpability of certain offenders in cases 

sentenced under § 2B1.1 that involve 

relatively large loss amounts. 

The parts are as follows: 

(A) Harm to Financial Markets 

Issue for Comment: 

1. The Commission requests comment 

on whether the Guidelines Manual 

provides penalties that appropriately 

account for the potential and actual 

harm to the public and the financial 

markets from the offenses covered by 

the directives. If not, what changes to 

the Guidelines Manual would be 

appropriate to respond to this 

requirement in both directives? 

Section 2B1.1 contains provisions that 

address harm to the public and the 

financial markets in various ways, by 

taking into account the amount of the 

loss, the number of victims, and other 

factors contained in its specific offense 

characteristics and departure 

provisions. For example, subsection 

(b)(14) provides an enhancement of 

either (A) 2 levels, if the defendant 

derived more than $1,000,000 in gross 

receipts from one or more financial 

institutions, or (B) 4 levels, if the offense 

(i) substantially jeopardized the safety 

and soundness of a financial institution, 

(ii) substantially endangered the 

solvency or financial security of an 

organization that (I) was a publicly 

traded company or (II) had 1,000 or 

more employees, or (iii) substantially 

endangered the solvency or financial 

security of 100 or more victims. 

Subsection (b)(14)(C) provides that the 

cumulative adjustments from (b)(2) and 

(b)(14)(B) shall not exceed 8 levels, 

except as provided in subdivision (D). 

Subdivision (D) provides a minimum 

offense level of level 24, if either (A) or 

(B) applies. 

Should the Commission amend 

§ 2B1.1 to more directly account for the 

potential and actual harms to the public 

and the financial markets? For example, 

should the Commission provide a new 

prong in § 2B1.1(b)(14) that provides an 

enhancement of [2][4][6] levels if the 

offense involved a significant disruption 

of a financial market or created a 

substantial risk of such a disruption? In 

the alternative, should the Commission 

provide a new upward departure 

provision in § 2B1.1 that applies if the 

offense involved such a disruption or 

created a substantial risk of such a 

disruption? 

If the Commission were to provide 

such a provision, what guidance should 

the Commission provide for 

determining when the provision would 

apply? 

(B) Securities Fraud and Similar 

Offenses 

Synopsis of Proposed Amendment: 

Section 1079A(a)(1)(A) of the Act 

directs the Commission to ‘‘review and, 

if appropriate, amend’’ the guidelines 

and policy statements applicable to 

‘‘persons convicted of offenses relating 

to securities fraud or any other similar 

provision of law, in order to reflect the 

intent of Congress that penalties for the 

offenses under the guidelines and policy 

statements appropriately account for the 

potential and actual harm to the public 

and the financial markets from the 

offenses.’’ 

In addition, section 1079A(a)(1)(B) of 

the Act provides that, in promulgating 

any such amendment, the Commission 

shall— 

(i) Ensure that the guidelines and 

policy statements, particularly section 

2B1.1(b)(14) and section 2B1.1(b)(17) 

(and any successors thereto), reflect— 

(I) The serious nature of the offenses 

described in subparagraph (A); 

(II) The need for an effective deterrent 

and appropriate punishment to prevent 

the offenses; and 

(III) The effectiveness of incarceration 

in furthering the objectives described in 

subclauses (I) and (II); 

(ii) Consider the extent to which the 

guidelines appropriately account for the 

potential and actual harm to the public 

and the financial markets resulting from 

the offenses; 

(iii) Ensure reasonable consistency 

with other relevant directives and 

guidelines and Federal statutes; 

(iv) Make any necessary conforming 

changes to guidelines; and 

(v) Ensure that the guidelines 

adequately meet the purposes of 

sentencing, as set forth in section 

3553(a)(2) of title 18, United States 

Code. 

Securities fraud is prosecuted under 

18 U.S.C. 1348 (Securities and 

commodities fraud), which makes it 

unlawful to knowingly execute, or 

attempt to execute, a scheme or artifice 

(1) to defraud any person in connection 

with a security or (2) to obtain, by 

means of false or fraudulent pretenses, 

representations, or promises, any money 

or property in connection with the 

purchase or sale of a security. The 

statutory maximum term of 

imprisonment for an offense under 

section 1348 is 25 years. Offenses under 

section 1348 are referenced in Appendix 

A (Statutory Index) to § 2B1.1. 

Securities fraud is also prosecuted 

under 18 U.S.C. 1350 (Failure of 

corporate officers to certify financial 

reports), violations of the provisions of 

law referred to in 15 U.S.C. 78c(a)(47), 

and violations of the rules, regulations, 

and orders issued by the Securities and 

Exchange Commission pursuant to those 

provisions of law. See § 2B1.1, 

comment. (n.14(A)). In addition, there 

are cases in which the defendant 

committed a securities law violation but 

is prosecuted under a general fraud 

statute. In general, these offenses are 

likewise referenced to § 2B1.1. 

The directive contemplates that the 

Commission also review offenses 

‘‘under any other similar provision of 

law’’. The Commission has received 

comment indicating that commodities 

fraud offenses and insider trading 

offenses should be included within the 

scope of its review. 

The proposed amendment responds to 

the directive by amending the insider 

trading guideline, § 2B1.4 (Insider 

Trading), in several ways. 

First, it provides a specific offense 

characteristic that applies if the offense 

involved sophisticated insider trading. 

The specific offense characteristic 

provides an enhancement of [2] levels 

and a minimum offense level of [12][14]. 

Second, it provides a 4-level 

enhancement that applies if the 

defendant, at the time of the offense, 

held one of several listed positions of 

trust. This enhancement parallels the 

enhancement in § 2B1.1(b)(18). 

Issues for comment are also provided, 

both on insider trading offenses under 

§ 2B1.4 and on securities fraud and 

similar offenses under § 2B1.1. 

Proposed Amendment: 

Section 2B1.4(b) is amended by 

striking ‘‘Characteristic’’ and inserting 

‘‘Characteristics’’; and by inserting after 

paragraph (1) the following: 

‘‘(2) If the offense involved 

sophisticated insider trading, increase 

by 2 levels. If the resulting offense level 

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Federal Register / Vol. 77, No. 12 / Thursday, January 19, 2012 / Notices 2781 

is less than level [12][14], increase to 

level [12][14]. 

(3) If, at the time of the offense, the 

defendant was— 

(A)(i) An officer or a director of a 

publicly traded company; (ii) a 

registered broker or dealer, or a person 

associated with a broker or dealer; or 

(iii) an investment adviser, or a person 

associated with an investment adviser; 

or 

(B)(i) An officer or a director of a 

futures commission merchant or an 

introducing broker; (ii) a commodities 

trading advisor; or (iii) a commodity 

pool operator, increase by 4 levels.’’. 

The Commentary to §2B1.4 captioned 

‘‘Application Note’’ is amended in the 

phrase ‘‘Application Note’’ by striking 

‘‘Note’’ and inserting ‘‘Notes’’; by 

redesignating Note 1 as Note 3; in that 

Note, by striking ‘‘Section 3B1.3 (Abuse 

of Position of Trust or Use of Special 

Skill)’’ and inserting ‘‘If subsection 

(b)(3) applies, do not apply §3B1.3. In 

any other case, §3B1.3’’; and by striking 

‘‘trust. Examples might include a 

corporate president or’’ and inserting 

‘‘trust, such as’’. 

The Commentary to §2B1.4 captioned 

‘Application Note’ is amended by 

inserting before Note 3 (as so 

redesignated) the following: 

1. Application of Subsection (b)(2).— 

For purposes of subsection (b)(2), 

‘sophisticated insider trading’ means 

especially complex or intricate offense 

conduct pertaining to the execution or 

concealment of the offense. 

The following is a non-exhaustive list 

of factors that the court shall consider 

in determining whether subsection 

(b)(2) applies: 

(A) The number of transactions; 

(B) The dollar value of the 

transactions; 

(C) The number of securities involved; 

(D) The duration of the offense; 

(E) Whether fictitious entities, 

corporate shells, or offshore financial 

accounts were used to hide transactions; 

and 

(F) Whether internal monitoring or 

auditing systems or compliance and 

ethics program standards or procedures 

were subverted in an effort to prevent 

the detection of the offense. 

2. Application of Subsection (b)(3).— 

For purposes of subsection (b)(3): 

‘Commodity pool operator’ has the 

meaning given that term in section 1a(5) 

of the Commodity Exchange Act (7 

U.S.C. 1a(5)). 

‘Commodity trading advisor’ has the 

meaning given that term in section 1a(6) 

of the Commodity Exchange Act (7 

U.S.C. 1a(6)). 

‘Futures commission merchant’ has 

the meaning given that term in section 

1a(20) of the Commodity Exchange Act 

(7 U.S.C. 1a(20)). 

‘Introducing broker’ has the meaning 

given that term in section 1a(23) of the 

Commodity Exchange Act (7 U.S.C. 

1a(23)). 

‘Investment adviser’ has the meaning 

given that term in section 202(a)(11) of 

the Investment Advisers Act of 1940 (15 

U.S.C. 80b–2(a)(11)). 

‘Person associated with a broker or 

dealer’ has the meaning given that term 

in section 3(a)(18) of the Securities 

Exchange Act of 1934 (15 U.S.C. 

78c(a)(18)). 

‘Person associated with an investment 

adviser’ has the meaning given that term 

in section 202(a)(17) of the Investment 

Advisers Act of 1940 (15 U.S.C. 80b– 

2(a)(17)). 

‘Registered broker or dealer’ has the 

meaning given that term in section 

3(a)(48) of the Securities Exchange Act 

of 1934 (15 U.S.C. 78c(a)(48)).’’. 

Issues for Comment: 

1. Insider Trading. The Commission 

has received public comment indicating 

that some insider trading defendants 

engage in serious offense conduct but 

nonetheless, because of market forces or 

other factors, do not necessarily realize 

high gains. The concern has been raised 

that in such cases, §2B1.4 may not 

adequately account for the seriousness 

of the conduct and the actual and 

potential harms to individuals and 

markets, because the guideline uses gain 

alone as the measure of harm. 

Should the Commission provide in 

§2B1.4 one or more specific offense 

characteristics that use aggravating 

factors other than gain to account for the 

seriousness of the conduct and the 

actual or potential harm to individuals 

and markets? If so, what should the 

factor or factors be? For example, should 

the Commission provide, as an 

aggravating factor in §2B1.4, (i) The 

number of transactions; (ii) the dollar 

value of the transactions; (iii) the 

number of securities involved; or some 

other factor that distinguishes a 

defendant who engages in multiple 

instances or higher volumes of insider 

trading from a defendant who does not? 

If the Commission were to provide 

one or more new specific offense 

characteristics based on such 

aggravating factors, what level or levels 

of enhancement should the Commission 

provide, and how should any such 

enhancement interact with the 

enhancement for gain in §2B1.4? 

For example, in bid-rigging cases, the 

guidelines currently provide a ‘‘volume 

of commerce’’ enhancement in 

subsection (b)(2) of §2R1.1 (Bid-Rigging, 

Price-Fixing or Market-Allocation 

Agreements Among Competitors). That 

enhancement provides a tiered 

enhancement, ranging from 2 levels if 

the volume of commerce was more than 

$1,000,000, to 16 levels if the volume of 

commerce was more than 

$1,500,000,000. Should the Commission 

consider an analogous tiered 

enhancement (e.g., based on volume of 

trading) for insider trading cases in 

§2B1.4? If so, what guidance should the 

Commission provide on how the 

volume of trading is to be determined, 

what volumes of trading should be used 

for the tiered enhancement, and what 

levels of enhancement should apply to 

the various tiers? 

Similarly, §2R1.1 provides a special 

instruction under which the fine for an 

organizational defendant is calculated 

based on 20 percent of the volume of 

commerce, rather than on the pecuniary 

loss. See §2R1.1(d)(1). Should the 

Commission consider an analogous 

approach for insider trading cases in 

§2B1.4? In particular, should the 

Commission provide a special rule 

under which the gain enhancement in 

§2B1.4(b)(1) would use either the gain 

or an amount equal to [20] percent of 

the volume of trading, whichever is 

greater? 

2. Calculation of Loss in §2B1.1. The 

Commission has received comment 

indicating that determinations of loss in 

cases under §2B1.1 involving securities 

fraud and similar offenses are complex 

and a variety of different methods are in 

use, resulting in application issues and 

possible sentencing disparities. Should 

the Commission amend §2B1.1 to clarify 

the method or methods used in 

determining loss in such cases to ensure 

that the guideline appropriately 

accounts for the potential and actual 

harm to the public and the financial 

markets from those offenses? 

For example, courts in cases involving 

securities fraud and similar offenses 

have used— 

(A) A simple rescissory method 

(under which loss is based upon the 

price that the victim paid for the 

security and the price of the security as 

it existed after the fraud was disclosed), 

see, e.g., United States v. Grabske, 260 

F.Supp.2d 866, 872–73 (N.D. Cal. 2002); 

(B) A modified rescissory method 

(under which loss is based upon the 

average price of the security during the 

period that the fraud occurred and the 

average price of the security during a set 

period after the fraud was disclosed to 

the market), see, e.g., United States v. 

Brown, 595 F.3d 498 (3d Cir. 2010); 

United States v. Bakhit, 218 F.Supp.2d 

1232 (C.D. Cal. 2002); 

(C) A market capitalization method 

(under which loss is based upon the 

price of the security shortly before the 

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2782 Federal Register / Vol. 77, No. 12 / Thursday, January 19, 2012 / Notices 

disclosure and the price of the security 

shortly after the disclosure), see, e.g., 

United States v. Moskowitz, 215 F.3d 

265, 272 (2d Cir. 2000), abrogated on 

other grounds by Crawford v. 

Washington, 541 U.S. 36, 64 (2002); 

United States v. Peppel, 2011 WL 

3608139 (S.D. Ohio 2011); and 

(D) A market-adjusted method (under 

which loss is based upon the change in 

value of the security, but excluding 

changes in value that were caused by 

external market forces), see, e.g., United 

States v. Rutkoske, 506 F.3d 170, 179 

(2d Cir. 2007); United States v. Olis, 429 

F.3d 540, 546 (5th Cir. 2005). 

The Commission seeks comment on 

these four methods of calculating loss in 

cases involving securities fraud and 

similar offenses, and the relative 

advantages and disadvantages of these 

methods. The Commission also seeks 

comment on whether there are any other 

methods of calculating loss, other than 

these four methods, that should be used 

in such cases. 

Should the Commission provide a 

specific method or methods for use by 

courts in determining loss in cases 

involving securities fraud and similar 

offenses? If so, which method or 

methods should the Commission 

provide? Should the method used 

depend on the type of fraudulent 

scheme, and if so, how? 

In particular, two of the more 

common types of securities fraud are (1) 

investment fraud, in which victims are 

fraudulently induced to invest in 

companies or products related to 

securities (a category that includes 

Ponzi schemes); and (2) market or price 

manipulation fraud, in which the 

offender seeks to inflate the price of a 

security through various means (a 

category that includes so-called ‘‘pump 

and dump’’ schemes as well as 

accounting frauds). What method or 

methods of loss calculation should be 

used for investment fraud, and what 

method or methods should be used for 

market or price manipulation fraud? Are 

there any other types of securities fraud 

or similar offenses for which the 

Commission should provide a specific 

method or methods of loss calculation? 

What changes, if any, should the 

Commission make to the existing rules 

for calculation of loss in cases involving 

securities fraud or similar offenses? For 

example, the calculation of loss in an 

investment fraud case is covered by 

Application Note 3(F)(iv) to § 2B1.1, 

which provides: 

Ponzi and Other Fraudulent Investment 

Schemes.—In a case involving a fraudulent 

investment scheme, such as a Ponzi scheme, 

loss shall not be reduced by the money or the 

value of the property transferred to any 

individual investor in the scheme in excess 

of that investor’s principal investment (i.e., 

the gain to an individual investor in the 

scheme shall not be used to offset the loss to 

another individual investor in the scheme). 

Should the Commission revise or 

repeal this application note and provide 

a different rule for investment fraud? 

Should the Commission provide 

further guidance regarding the causation 

standard to be applied in calculating 

loss in cases involving securities fraud 

or similar offenses? For example, should 

the Commission provide a loss 

causation standard similar to the civil 

loss causation standard articulated by 

the Supreme Court in Dura 

Pharmaceuticals, Inc. v. Broudo, 544 

U.S. 336 (2005) (holding that a civil 

securities fraud plaintiff must prove that 

the plaintiff’s economic loss was 

proximately caused by the defendant’s 

misrepresentation (or other fraudulent 

conduct) as opposed to other 

independent market factors)? 

Are there any other changes that the 

Commission should make regarding the 

determination of loss in cases involving 

securities fraud or similar offenses to 

ensure that the guidelines appropriately 

account for the potential and actual 

harm to the public and the financial 

markets from those offenses? 

3. Specific Provisions in § 2B1.1. The 

directive requires the Commission to 

consider, among other things, the 

enhancements at § 2B1.1(b)(15) and 

(b)(18) (formerly (b)(14) and (b)(17), 

respectively). The Commission seeks 

comment on whether any changes 

should be made to either or both of 

these provisions in response to the 

directive. Should the Commission 

expand the scope or the amounts of the 

increases provided by subsection (b)(15) 

or (b)(18), or both, to ensure that the 

guidelines appropriately account for the 

potential and actual harm to the public 

and the financial markets? If so, how? 

(C) Mortgage Fraud and Financial 

Institution Fraud 

Synopsis of Proposed Amendment: 

This part of the proposed amendment 

responds to the directive in section 

1079A(a)(2) of the Act, which relates to 

mortgage fraud and financial institution 

fraud. 

Specifically, section 1079A(a)(2)(A) of 

the Act directs the Commission to 

‘‘review and, if appropriate, amend’’ the 

guidelines and policy statements 

applicable to ‘‘persons convicted of 

fraud offenses relating to financial 

institutions or federally related 

mortgage loans and any other similar 

provisions of law, to reflect the intent of 

Congress that the penalties for the 

offenses under the guidelines and policy 

statements ensure appropriate terms of 

imprisonment for offenders involved in 

substantial bank frauds or other frauds 

relating to financial institutions.’’ 

In addition, section 1079A(a)(2)(B) of 

the Act provides that, in promulgating 

any such amendment, the Commission 

shall— 

(i) Ensure that the guidelines and 

policy statements reflect— 

(I) The serious nature of the offenses 

described in subparagraph (A); 

(II) The need for an effective deterrent 

and appropriate punishment to prevent 

the offenses; and 

(III) The effectiveness of incarceration 

in furthering the objectives described in 

subclauses (I) and (II); 

(ii) Consider the extent to which the 

guidelines appropriately account for the 

potential and actual harm to the public 

and the financial markets resulting from 

the offenses; 

(iii) Ensure reasonable consistency 

with other relevant directives and 

guidelines and Federal statutes; 

(iv) Make any necessary conforming 

changes to guidelines; and 

(v) Ensure that the guidelines 

adequately meet the purposes of 

sentencing, as set forth in section 

3553(a)(2) of title 18, United States 

Code. 

With regard to mortgage fraud, the 

proposed amendment makes two 

changes to Application Note 3 regarding 

calculation of loss. The first change 

addresses the credit against loss rule 

and states that, in the case of a fraud 

involving a mortgage loan in which the 

collateral has been disposed of at a 

foreclosure sale, use the amount 

recovered from the foreclosure sale. 

The second change specifies that, in 

the case of a fraud involving a mortgage 

loan, reasonably foreseeable pecuniary 

harm includes the reasonably 

foreseeable administrative costs to the 

lending institution associated with 

foreclosing on the mortgaged property, 

provided that the lending institution 

exercised due diligence in the initiation, 

processing, and monitoring of the loan 

and the disposal of the collateral. 

With regard to financial institution 

fraud more generally, the proposed 

amendment broadens the applicability 

of § 2B1.1(b)(15)(B), which provides an 

enhancement of 4 levels if the offense 

involved specific types of financial 

harms (e.g., jeopardizing a financial 

institution or organization). Application 

Note 12 to § 2B1.1 lists factors to be 

considered in determining whether to 

apply the enhancement in subsection 

(b)(15)(B) for jeopardizing a financial 

institution or organization. Currently, 

the court is directed to consider whether 

the financial institution or organization 

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suffered one or more listed harms (such 

as becoming insolvent) as a result of the 

offense. The proposed amendment 

amends Note 12 to direct the court to 

consider whether one of the listed 

harms was likely to result from the 

offense but did not result from the 

offense because of federal government 

intervention. 

Issues for comment are also provided. 

Proposed Amendment: 

The Commentary to § 2B1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 3(A)(v) by adding at the end the 

following: 

‘‘(IV) Fraud Involving a Mortgage Loan.— 

In the case of a fraud involving a mortgage 

loan, the reasonably foreseeable pecuniary 

harm includes the reasonably foreseeable 

administrative costs to the lending institution 

associated with foreclosing on the mortgaged 

property, provided that the lending 

institution exercised due diligence in the 

initiation, processing, and monitoring of the 

loan and the disposal of the collateral.’’; 

in Note 3(E)(ii) by adding at the end ‘‘In 

the case of a fraud involving a mortgage 

loan in which the collateral has been 

disposed of at a foreclosure sale, use the 

amount recovered from the foreclosure 

sale.’’; 

in Note 12(A) by adding at the end the 

following: 

‘‘(v) One or more of the criteria in clauses 

(i) through (iv) was likely to result from the 

offense but did not result from the offense 

because of federal government intervention.’’; 

and in Note 12(B)(ii) by inserting at the 

end the following: 

‘‘(VII) One or more of the criteria in 

subclauses (I) through (VI) was likely to 

result from the offense but did not result 

from the offense because of federal 

government intervention.’’. 

Issue for Comment: 

1. The Commission requests comment 

regarding whether the Guidelines 

Manual provides penalties for mortgage 

fraud and financial institution fraud that 

appropriately account for the potential 

and actual harm to the public and the 

financial markets from these offenses 

and ensure appropriate terms of 

imprisonment for offenders involved in 

substantial bank frauds or other frauds 

relating to financial institutions and, if 

not, what changes to the Guidelines 

Manual would be appropriate to 

respond to section 1079A(a)(2) of the 

Act. 

Bank fraud is prosecuted under 18 

U.S.C. 1344 (Bank fraud), which makes 

it unlawful to knowingly execute a 

scheme or artifice (1) to defraud a 

financial institution or (2) to obtain any 

of the property of a financial institution 

by means of false or fraudulent 

pretenses, representations, or promises. 

The statutory maximum term of 

imprisonment for an offense under 

section 1344 is 30 years. Offenses under 

section 1344 are referenced in Appendix 

A (Statutory Index) to § 2B1.1. Other 

statutes relating to financial institution 

fraud or mortgage fraud include 18 

U.S.C. 215, 656, 657, 1005, 1006, 1010, 

1014, 1029, and 1033. These offenses 

are likewise generally referenced to 

§ 2B1.1. 

A. Proposed Provisions 

The proposed amendment would 

make two changes regarding calculation 

of loss in mortgage fraud cases. The 

Commission invites comment on 

whether there are other issues involving 

loss in mortgage fraud cases that are not 

adequately accounted for in the 

guidelines and, if so, what changes 

should be made to how loss is 

calculated in mortgage fraud cases. 

For example, the first change would 

specify that in the case of a fraud 

involving a mortgage loan in which the 

collateral was disposed of at a 

foreclosure sale, use the amount 

recovered from the foreclosure sale. 

Should the Commission provide an 

additional special rule for determining 

fair market value if the mortgaged 

property has not been disposed of by the 

time of sentencing? For example, should 

the Commission provide that, if the 

mortgaged property has not been 

disposed of by that time, the most recent 

tax assessment value of the mortgaged 

property shall constitute prima facie 

evidence of the fair market value, i.e., is 

evidence sufficient to establish the fair 

market value, if not rebutted? 

The proposed amendment would also 

expand the scope of § 2B1.1(b)(15) by 

amending the commentary to provide 

additional factors for the court to 

consider in determining whether one or 

more prongs of subsection (b)(15) apply. 

The Commission invites comment on 

whether it should make any further 

changes to subsection (b)(15), such as by 

expanding its scope or increasing its 

penalties, or both, to ‘‘ensure 

appropriate terms of imprisonment for 

offenders involved in substantial bank 

frauds or other frauds relating to 

financial institutions’’. If so, what 

changes to subsection (b)(15) should be 

made? 

B. Mitigating Factors 

Are there mitigating factors in cases 

involving mortgage fraud or financial 

fraud that are not adequately accounted 

for in the guidelines? If so, how should 

the Commission amend the Guidelines 

Manual to account for those mitigating 

factors? 

(D) Impact of Loss and Victims Tables 

in Certain Cases 

Issues for Comment: 

1. The Commission has observed that 

cases sentenced under § 2B1.1 involving 

relatively large loss amounts have 

relatively high rates of below-range 

sentences (both government sponsored 

and non-government sponsored), 

particularly in the context of securities 

fraud and similar offenses. The 

Commission also has received public 

comment and reviewed judicial 

opinions suggesting that the impact of 

the loss table or the victims table (or the 

combined impact of the loss table and 

the victims table) may overstate the 

culpability of certain offenders in such 

cases. 

In response to these concerns, the 

Commission is studying whether it 

should limit the impact of the loss table 

or the victims table (or both) in cases 

sentenced under § 2B1.1 involving 

relatively large loss amounts and, if so, 

how it should limit the impact. 

In particular, the Commission seeks 

comment on whether one or more of the 

following approaches should be 

adopted: 

(A) Limiting Impact of Loss Table if 

the Defendant Had Relatively Little Gain 

Relative to the Loss. Should the 

Commission insert a new specific 

offense characteristic in § 2B1.1 to limit 

the impact of the loss table in cases 

involving large loss amounts if the 

defendant had relatively little gain 

relative to the loss? Examples of such a 

provision are the following: 

(Ex. 1) If the defendant’s gain resulting 

from the offense did not exceed $10,000, the 

adjustment from application of subsection 

(b)(1) shall not exceed [14]/[16] levels. 

(Ex. 2) If the defendant’s gain resulting 

from the offense did not exceed $25,000, the 

adjustment from application of subsection 

(b)(1) shall not exceed [16]/[18] levels. 

(Ex. 3) If the defendant’s gain resulting 

from the offense did not exceed $70,000, the 

adjustment from application of subsection 

(b)(1) shall not exceed [18]/[20] levels. 

The maximum gain amount in the 

examples corresponds to one percent of 

the maximum loss amount. For 

example, in Example 3, the maximum 

gain amount is $70,000, which 

corresponds to a maximum loss amount 

of $7,000,000. (A loss amount of 

$7,000,000, in turn, corresponds to an 

enhancement of 18 levels, while a loss 

amount of more than $7,000,000 

corresponds to an enhancement of 20 

levels.) 

(B) Limiting Impact of Victims Table 

if No Victims Were Substantially 

Harmed by the Offense. Should the 

Commission amend the victims table in 

§ 2B1.1(b)(2) to limit the impact of the 

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victims table if no victims were 

substantially harmed by the offense? For 

example, should the Commission 

provide that the 4-level and 6-level 

prongs of the victims table apply only 

if the offense substantially endangered 

the solvency or financial security of at 

least one victim? 

(C) Limiting Cumulative Impact of 

Loss Table and Victims Table. Should 

the Commission limit the cumulative 

impact of the loss table and the victims 

table? For example, should the 

Commission provide that, if the 

enhancement under the loss table is 

[14]–[24] levels, do not apply the 4-level 

or 6-level adjustment under the victims 

table? 

The Commission seeks comment on 

these three approaches. The 

Commission also seeks comment on 

whether it should modify one or more 

of these approaches to take the form of 

departure provisions rather than 

specific offense characteristics. Finally, 

the Commission seeks comment on any 

other approaches that would address the 

impacts of the loss table and the victims 

table in a manner that ensures they are 

consistent with the purposes of 

sentencing. 

2. If the Commission were to limit the 

impacts of the loss table or the victims 

table, or both, should the limitation 

apply in all cases sentenced under 

’2B1.1, or only in a subset of such cases 

(e.g., only in securities fraud cases)? 

3. Many guidelines refer to the loss 

table in § 2B1.1, such as § 2B5.3 

(Criminal Infringement of Copyright or 

Trademark), § 2C1.2 (Offering, Giving, 

Soliciting, or Receiving a Gratuity), and 

§ 2S1.1 (Laundering of Monetary 

Instruments; Engaging in Monetary 

Transactions in Property Derived From 

Unlawful Activity). Other guidelines 

maintain a certain proportionality with 

the fraud guideline even though they do 

not refer directly to the loss table in 

§ 2B1.1, such as guidelines that use the 

tax table in § 2T4.1. If the Commission 

were to limit the impacts of the loss 

table or the victims table, or both, in 

§ 2B1.1, what changes, if any, should 

the Commission make to other 

guidelines for proportionality? 

2. Drugs 

Synopsis of Proposed Amendment: 

This proposed amendment contains two 

parts, each of which involves drug 

offenses. 

Part A sets forth detailed issues for 

comment regarding offenses involving 

N-Benzylpiperazine (BZP) and whether 

the Commission should amend the 

guidelines applicable to offenses 

involving BZP, such as by providing a 

specific reference for BZP in the Drug 

Quantity Table in § 2D1.1 (Unlawful 

Manufacturing, Importing, Exporting, or 

Trafficking (Including Possession with 

Intent to Commit These Offenses); 

Attempt or Conspiracy). Among other 

things, the issues for comment ask 

whether the Commission should base 

the penalties for BZP on the penalties 

for MDMA (Ecstasy), on the penalties 

for amphetamine, or on some other 

basis. 

Part B sets forth a proposed 

amendment that would create a ‘‘safety 

valve’’ provision in the guideline for 

chemical precursors, § 2D1.11 

(Unlawfully Distributing, Importing, 

Exporting or Possessing a Listed 

Chemical; Attempt or Conspiracy), that 

parallels the ‘‘safety valve’’ provision in 

§ 2D1.1. The proposed amendment adds 

a new specific offense characteristic at 

§ 2D1.11(b)(6) and a corresponding new 

application note. Under the proposed 

amendment, certain first-time, 

nonviolent offenders sentenced under 

the chemical precursor guideline, 

§ 2D1.11, would be eligible to receive 

the same 2-level ‘‘safety valve’’ 

reduction (and using the same five 

‘‘safety valve’’ criteria) as such offenders 

are eligible to receive under § 2D1.1. 

The two parts are as follows: 

(A) BZP 

Issues for Comment: 

1. The Commission seeks comment 

regarding whether the Commission 

should amend the guidelines applicable 

to offenses involving BZP, such as by 

providing a specific reference for BZP in 

the Drug Quantity Table in § 2D1.1. 

Offenses involving BZP represent a 

very small but increasing proportion of 

the federal caseload. Courts have 

reached different conclusions about 

what the marijuana equivalency for BZP 

should be, and those differences may be 

resulting in unwarranted sentencing 

disparities. The Commission has 

received several requests to address BZP 

offenses, including a request from the 

Second Circuit in United States v. 

Figueroa, 647 F.3d 466 (2d Cir. 2011) 

(‘‘inasmuch as the parties inform us that 

use of BZP, alone and in combination 

with other substances, to mimic the 

effects of other narcotics is increasingly 

prominent in certain parts of this 

Circuit, we direct the Clerk of the Court 

to forward a certified copy of this 

opinion to the Chairperson and Chief 

Counsel of the United States Sentencing 

Commission for whatever consideration 

they may deem appropriate’’). 

The Guidelines Manual does not 

provide a specific reference for BZP in 

the Drug Quantity Table in § 2D1.1 and 

does not provide a marijuana 

equivalency for BZP in the Drug 

Equivalency Table in Application Note 

10(D) to § 2D1.1. Accordingly, guideline 

penalties for offenses involving BZP are 

determined under Application Note 5 to 

§ 2D1.1, which directs the court to 

determine the base offense level using 

the marijuana equivalency of the ‘‘most 

closely related controlled substance’’ 

referenced in the guideline. In 

determining the most closely related 

substance, the court shall, to the extent 

practicable, consider the following: 

(A) Whether the controlled substance 

not referenced in this guideline has a 

chemical structure that is substantially 

similar to a controlled substance 

referenced in this guideline. 

(B) Whether the controlled substance 

not referenced in this guideline has a 

stimulant, depressant, or hallucinogenic 

effect on the central nervous system that 

is substantially similar to the stimulant, 

depressant, or hallucinogenic effect on 

the central nervous system of a 

controlled substance referenced in this 

guideline. 

(C) Whether a lesser or greater 

quantity of the controlled substance not 

referenced in this guideline is needed to 

produce a substantially similar effect on 

the central nervous system as a 

controlled substance referenced in this 

guideline. 

See § 2D1.1, comment. (n.5). 

District courts have suggested that the 

substance most closely related to BZP 

may be amphetamine, see United States 

v. Rose, 722 F.Supp.2d 1286, 1289 

(M.D.Ala. 2010) (‘‘BZP on its own may 

arguably be most similar to 

amphetamine’’), or methylphenidate 

(Ritalin), see United States v. Beckley, 

715 F.Supp.2d 743, 748 (E.D.Mich. 

2010) (stating that, if the issue of BZP 

alone were before the court, ‘‘it would 

be obliged to conclude that the most 

closely related controlled substance 

* * * is methylphenidate’’). However, 

the Eighth Circuit has upheld a district 

court’s conclusion that BZP is most 

closely related to MDMA. See United 

States v. Bennett, __ F.3d __, 2011 WL 

4950051 (8th Cir. 2011). 

A. In General 

The Commission invites general 

comment on BZP offenses and BZP 

offenders and how these offenses and 

offenders compare with other drug 

offenses and drug offenders. For 

example, how is BZP manufactured? 

How is it distributed and marketed? 

How is it possessed and used? What are 

the characteristics of the offenders 

involved in these various activities? 

What harms are posed by these 

activities? 

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B. Chemical Structure 

Is the chemical structure of BZP 

substantially similar to the chemical 

structure of a controlled substance 

referenced in § 2D1.1? If so, to what 

substance? 

C. Effect on Central Nervous System, 

and Relative Potency 

Is the effect on the central nervous 

system of BZP a stimulant, depressant, 

or hallucinogenic effect? Is that effect 

substantially similar to the stimulant, 

depressant, or hallucinogenic effect on 

the central nervous system of a 

controlled substance referenced in 

§ 2D1.1? If so, to what substance? Is the 

quantity of BZP needed to produce that 

effect lesser or greater than the quantity 

needed of the other such substance? If 

so, what is the difference in relative 

potency? 

The Drug Enforcement 

Administration has described BZP as a 

stimulant that is 10 to 20 times less 

potent than amphetamine. See 75 FR 

47451 (August 6, 2010) (‘‘BZP is about 

20 times less potent than amphetamine 

in producing [effects similar to 

amphetamine]. However, in subjects 

with a history of amphetamine 

dependence, BZP was found to be about 

10 times less potent than 

amphetamine.’’). The Commission 

invites comment on this description. If 

this description is accurate, should the 

Commission provide a marijuana 

equivalency for BZP on this basis, e.g., 

by specifying a marijuana equivalency 

for BZP equal to one-tenth or onetwentieth of the marijuana equivalency 

for amphetamine? In particular, under 

the Drug Equivalency Table, 1 gram of 

amphetamine is equivalent to 2 

kilograms of marijuana. Should the 

Commission specify a marijuana 

equivalency for BZP such that 1 gram of 

BZP is equivalent to one-tenth or onetwentieth of this, i.e., 200 or 100 grams 

of marijuana? If not, what should the 

Commission specify as the marijuana 

equivalency for BZP? 

2. There have been cases in which the 

offense involved BZP in combination 

with another controlled substance (such 

as MDMA), with non-controlled 

substances (such as TFMPP or caffeine), 

or both, in various proportions. 

Courts have recognized that 

distinctions between BZP alone and 

BZP in combination with other 

substances may be appropriate. For 

example, the Second Circuit in United 

States v. Chowdhury, 639 F.3d 583 (2d 

Cir. 2011), upheld a determination that 

BZP in combination with TFMPP is 

most closely related to MDMA, but in 

United States v. Figueroa, 647 F.3d 466 

(2d Cir. 2011), remanded a 

determination that BZP alone is most 

closely related to MDMA, finding 

Chowdhury not applicable and the 

record otherwise insufficient. See id. at 

470 (‘‘Although we certainly do not 

foreclose the determination that MDMA 

is the appropriate substitute for BZP 

alone, in the absence of an evidentiary 

hearing to determine the nature of the 

mixture, its chemical structure, and its 

intended neurological effects, the record 

on appeal does not permit us to 

determine whether the proper substitute 

is amphetamine * * *, MDMA, or 

another substance on the Drug 

Equivalency Table * * * ’’). 

Should the guidelines make 

distinctions between offenses involving 

BZP alone and BZP in combination with 

other substances? If so, what 

distinctions should be made? Are there 

particular combinations involving BZP 

that should be specifically accounted for 

in the guidelines and, if so, what are the 

combinations and how should the 

guidelines account for them? 

What controlled substance or 

substances are most closely related to 

BZP in combination with these various 

other substances? What marijuana 

equivalency or equivalencies should be 

provided for offenses involving BZP 

under these various circumstances? 

The tendency of the courts appears to 

be to follow an approach under which 

the BZP combination is most closely 

related to MDMA (but possibly at 

reduced potency). The Commission 

invites comment on this approach. If 

this approach is appropriate, should the 

Commission provide a marijuana 

equivalency for BZP combinations on 

this basis, e.g., by specifying a 

marijuana equivalency for BZP in 

combination with other substances that 

is equal to the marijuana equivalency 

for MDMA (but possibly at reduced 

potency)? In particular, under the Drug 

Equivalency Table, 1 gram of MDMA is 

equivalent to 500 grams of marijuana. 

Should the Commission specify a 

marijuana equivalency for BZP in 

combination with other substances such 

that 1 gram of BZP is equivalent to 500 

grams of marijuana? Or should the 

Commission specify an equivalency 

lower than 500 grams to account for the 

possible reduced potency? 

3. What, if any, other considerations 

should the Commission take into 

account in determining how, if at all, 

the guidelines should be amended as 

they apply to offenses involving BZP? 

(B) ‘‘Safety Valve’’ Provision in § 2D1.11 

Proposed Amendment: 

Section 2D1.11(b) is amended by 

adding at the end the following: 

‘‘(6) If the defendant meets the criteria 

set forth in subdivisions (1)–(5) of 

subsection (a) of ’5C1.2 (Limitation on 

Applicability of Statutory Minimum 

Sentences in Certain Cases), decrease by 

2 levels.’’. 

The Commentary to § 2D1.11 

captioned ‘‘Application Notes’’ is 

amended by adding at the end the 

following: 

‘‘9. Applicability of Subsection 

(b)(6).—The applicability of subsection 

(b)(6) shall be determined without 

regard to the offense of conviction. If 

subsection (b)(6) applies, § 5C1.2(b) 

does not apply. See § 5C1.2(b)(2) 

(requiring a minimum offense level of 

level 17 if the ‘statutorily required 

minimum sentence is at least five 

years’).’’. 

3. Human Rights 

Synopsis of Proposed Amendment: 

This proposed two-part amendment is a 

continuation of the Commission’s multiyear review to ensure that the guidelines 

provide appropriate guidelines penalties 

for cases involving human rights 

violations. 

A. Human Rights Offenses 

Part A of the proposed amendment 

addresses cases in which the defendant 

is convicted of an offense that Congress 

has indicated is a ‘‘serious human rights 

offense,’’ i.e., an offense under 18 U.S.C. 

1091 (Genocide), 2340A (Torture), 2441 

(War crimes), and 2442 (Recruitment or 

use of child soldiers). See 28 U.S.C. 

509B(e). Such offenses are currently 

accounted for in the guidelines as 

follows: 

(1) Genocide. Section 1091 offenses apply 

to a range of conduct committed ‘‘with the 

specific intent to destroy, in whole or in 

substantial part, a national, ethnic, racial, or 

religious group’’. See 18 U.S.C. 1091(a). The 

range of conduct includes (i) Killing 

members of the group; (ii) causing serious 

bodily injury to members of the group; (iii) 

causing permanent impairment of the mental 

faculties of members of the group (e.g., by 

drugs or torture); (iv) subjecting the group to 

conditions of life that are intended to cause 

the physical destruction of the group; (v) 

imposing measures intended to prevent 

births within the group; and (vi) transferring 

by force children of the group to another 

group. Id. The statutory maximum term of 

imprisonment is 20 years, or life 

imprisonment if the conduct involved killing 

and death resulted. See 18 U.S.C. 1091(b). In 

addition, section 1091(c) makes it a crime to 

‘‘directly and publicly incite[] another’’ to 

violate section 1091(a); the statutory 

maximum term of imprisonment for this 

offense is 5 years. See 18 U.S.C. 1091(c). 

Section 1091 offenses are referenced in 

Appendix A (Statutory Index) to § 2H1.1 

(Civil Rights). 

(2) Torture. Section 2340A offenses apply 

to whoever commits or attempts to commit 

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torture (as defined in 18 U.S.C. 2340). The 

statutory maximum term of imprisonment is 

20 years, or any term of years or life if death 

resulted. See 18 U.S.C. 2340A(a). Section 

2340A offenses are referenced in Appendix A 

to §§ 2A1.1 (First Degree Murder), 2A1.2 

(Second Degree Murder), 2A2.1 (Assault with 

Intent to Commit Murder; Attempted 

Murder), 2A2.2 (Aggravated Assault), and 

2A4.1 (Kidnapping, Abduction, Unlawful 

Restraint). 

(3) War Crimes. Section 2441 offenses 

apply to a range of conduct that constitute a 

war crime (as defined in 18 U.S.C. 2441(c)). 

The range of conduct includes (i) Torture; (ii) 

cruel or inhuman treatment; (iii) performing 

biological experiments; (iv) murder; (v) 

mutilation or maiming; (vi) intentionally 

causing serious bodily injury; (vii) rape; (viii) 

sexual assault or abuse; and (ix) taking 

hostages. The statutory maximum term of 

imprisonment is any term of years or life. See 

18 U.S.C. 2441(a). Section 2441 offenses are 

not referenced in Appendix A. 

(4) Child Soldiers. Section 2442 offenses 

apply to whoever knowingly (1) recruits, 

enlists, or conscripts a child (i.e., a person 

under 15 years of age) to serve in an armed 

force or group or (2) uses a child to 

participate actively in hostilities. See 18 

U.S.C. 2442(a). The statutory maximum term 

of imprisonment is 20 years, or any term of 

years or life if death resulted. See 18 U.S.C. 

2442(b). Section 2442 offenses are referenced 

in Appendix A to § 2H4.1 (Peonage, 

Involuntary Servitude, Slave Trade, and 

Child Soldiers). 

The proposed amendment provides 

two options for cases in which the 

defendant is convicted of such an 

offense. 

Option 1 establishes a new Chapter 

Two offense guideline, at § 2H5.1 

(Human Rights). The new offense 

guideline reflects a consolidation into a 

single guideline of the various base 

offense levels and specific offender 

characteristics that are involved in the 

guidelines that currently account for 

these offenses. The new offense 

guideline contains alternative base 

offense levels of [18] if the defendant is 

convicted of the offense of incitement to 

genocide (which generally has a 

statutory maximum term of 

imprisonment of 5 years) and [24] 

otherwise. The guideline also contains 

enhancements that apply if any victim 

sustained serious bodily injury (2 to 4 

levels); if any victim was sexually 

exploited (6 to 10 levels); if any victim 

was abducted, involuntarily detained, or 

held in a condition of servitude (6 to 10 

levels); if the number of victims was 

[10][50] or more (2 levels); if death 

resulted; or if the defendant was a 

public official [or military official] or 

the offense was committed under color 

of law [or color of military authority]. 

Option 1 also amends Appendix A 

(Statutory Index) to reference each of 

these offenses of conviction to the new 

guideline and makes conforming 

changes to other offense guidelines. 

Option 2 establishes a new Chapter 

Three adjustment, at § 3A1.5 (Human 

Rights), that applies if the defendant 

[was convicted of]/[committed] a 

serious human rights offense. The 

proposed guideline provides an 

enhancement of [4]–[12] levels and a 

minimum offense level of [24]–[32]. The 

proposed guideline also requires that 

the defendant be placed in Criminal 

History Category [V][VI]. 

B. Immigration and Naturalization 

Offenses Involving Serious Human 

Rights Offenses 

Part B of the proposed amendment 

addresses cases in which the offense of 

conviction is for immigration or 

naturalization fraud but the defendant 

had committed a serious human rights 

offense. Immigration and naturalization 

frauds are referenced in Appendix A to 

§ 2L2.1 (Trafficking in a Document 

Relating to Naturalization, Citizenship, 

or Legal Resident Status, or a United 

States Passport; False Statement in 

Respect to the Citizenship or 

Immigration Status of Another; 

Fraudulent Marriage to Assist Alien to 

Evade Immigration Law) or § 2L2.2 

(Fraudulently Acquiring Documents 

Relating to Naturalization, Citizenship, 

or Legal Resident Status for Own Use; 

False Personation or Fraudulent 

Marriage by Alien to Evade Immigration 

Law; Fraudulently Acquiring or 

Improperly Using a United States 

Passport), depending on the offense of 

conviction. 

The proposed amendment adds a new 

specific offense characteristic to both 

guidelines. The new specific offense 

characteristic provides an enhancement 

of [10]–[18] levels if the offense 

reflected an effort to avoid detection or 

responsibility for a serious human rights 

offense. 

Part C of the proposed amendment 

sets forth issues for comment on human 

rights offenses. 

(A) Human Rights Offenses 

Proposed Amendment: 

Option 1: 

Chapter 2, Part H is amended in the 

heading by adding at the end ‘‘AND 

HUMAN RIGHTS’’. 

Chapter 2, Part H is amended by 

adding at the end the following: 

‘‘5. HUMAN RIGHTS 

§ 2H5.1. Human Rights 

(a) Base Offense Level: 

(1) [24], except as provided below; 

(2) [18], if the defendant is convicted 

of an offense under 18 U.S.C. § 1091(c). 

(b) Specific Offense Characteristics 

(1) (A) If any victim sustained 

permanent or life-threatening bodily 

injury, increase by 4 levels; (B) if any 

victim sustained serious bodily injury, 

increase by 2 levels; or (C) if the degree 

of injury is between that specified in 

subdivisions (A) and (B), increase by 3 

levels. 

(2) (A) If any victim was sexually 

exploited, increase by 6 levels; (B) if any 

such victim had not attained the age of 

sixteen years, increase by 8 levels; or (C) 

if any such victim had not attained the 

age of twelve years, increase by 10 

levels. 

(3) (A) If any victim was abducted, 

involuntarily detained, or held in a 

condition of servitude, increase by 6 

levels; (B) if any such victim continued 

to be so detained or held for at least 30 

days, increase by 8 levels; or (C) if any 

such victim continued to be so detained 

or held for at least 180 days, increase by 

10 levels. 

(4) If the number of victims described 

in subdivisions (1) through (3) was 

[10][50] or more, increase by [2][4] 

levels. 

(5) If death resulted, increase to the 

greater of: 

(A) 2 plus the offense level as 

determined above; or 

(B) 2 plus the offense level from the 

most analogous guideline from Chapter 

Two, Part A, Subpart 1 (Homicide). 

(6) If (A) the defendant was a public 

official [or military official] at the time 

of the offense; or (B) the offense was 

committed under color of law [or color 

of military authority], increase by 6 

levels. 

Commentary 

Statutory Provisions: 18 U.S.C. 1091, 

2340A, 2441, and 2442. 

Application Notes: 

1. Definitions.—For purposes of this 

guideline— 

Definitions of ‘serious bodily injury’ 

and ‘permanent or life-threatening 

bodily injury’ are found in the 

Commentary to § 1B1.1 (Application 

Instructions). However, for purposes of 

this guideline, ’serious bodily injury’ 

means conduct other than criminal 

sexual abuse, which is taken into 

account in the specific offense 

characteristic under subsection (b)(2). 

‘Sexually exploited’ includes offenses 

set forth in 18 U.S.C. 2241–2244, 2251, 

and 2421–2423. 

2. Interaction With § 3A1.1 (Hate 

Crime Motivation or Vulnerable 

Victim).— 

(A) Hate Crime Motivation 

(§ 3A1.1(a)).—If the finder of fact at trial 

or, in the case of a plea of guilty or nolo 

contendere, the court at sentencing 

determines beyond a reasonable doubt 

that the defendant intentionally selected 

any victim or any property as the object 

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of the offense because of the actual or 

perceived race, color, religion, national 

origin, ethnicity, gender, gender 

identity, disability, or sexual orientation 

of any person, an additional 3-level 

enhancement from § 3A1.1(a) will 

apply. An adjustment from § 3A1.1(a) 

will not apply, however, if a 6-level 

adjustment from § 2H5.1(b)(6) applies. 

(B) Vulnerable Victim (§ 3A1.1(b)).— 

The base offense level does not 

incorporate the possibility that a victim 

of the offense was a vulnerable victim 

for purposes of § 3A1.1(b). Therefore, an 

adjustment under ’3A1.1(b) would 

apply, for example, in a case in which 

the defendant recruited or used child 

soldiers (see 18 U.S.C. 2442) or 

transferred by force children of a 

national, ethnic, racial, or religious 

group (see 18 U.S.C. 1091(a)(5)). 

3. Interaction with § 3A1.3 (Restraint 

of Victim).—If subsection (b)(3) applies, 

do not apply § 3A1.3 (Restraint of 

Victim). 

4. Interaction With § 3B1.3 (Abuse of 

Position of Trust or Use of Special 

Skill.—If subsection (b)(6) applies, do 

not apply § 3B1.3 (Abuse of Position of 

Trust or Use of Special Skill). 

Background: This guideline covers a 

range of conduct considered to be 

serious human rights offenses, including 

genocide, war crimes, torture, and the 

recruitment or use of child soldiers. See 

generally 28 U.S.C. 509B(e).’’. 

The Commentary to § 2A1.1 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘, 2340A’’. 

The Commentary to § 2A1.2 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘, 2340A’’. 

The Commentary to § 2A2.2 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘, 2340A’’. 

The Commentary to § 2A4.1 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘, 2340A’’. 

The Commentary to § 2H1.1 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘, 1091’’. 

Chapter 2, Part H, Subpart 4 is 

amended in the heading by striking 

‘‘SLAVE TRADE, AND CHILD 

SOLDIERS’’ and inserting ‘‘AND SLAVE 

TRADE’’. 

Section 2H4.1 is amended in the 

heading by striking ‘‘Slave Trade, and 

Child Soldiers’’ and inserting ‘‘and 

Slave Trade’’. 

The Commentary to § 2H4.1 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘, 2442’’. 

The Commentary to § 2H4.1 captioned 

‘‘Application Notes’’ is amended in the 

sentence beginning ‘‘’Peonage or 

involuntary servitude’’’ by striking ‘‘, 

slavery, and recruitment or use of child 

soldiers’’ and inserting ‘‘and slavery’’. 

Appendix A (Statutory Index) is 

amended in the line referenced to 18 

U.S.C. 1091 by striking ‘‘2H1.1’’ and 

inserting ‘‘2H5.1’’; in the line referenced 

to 18 U.S.C. 2340A by striking ‘‘2A1.1, 

2A1.2, 2A2.1, 2A2.2, 2A4.1’’ and 

inserting ‘‘2H5.1’’; after the line 

referenced to 18 U.S.C. 2425 by 

inserting the following: 

‘‘18 U.S.C. 2441 2H5.1’’; 

and in the line referenced to 18 U.S.C. 

2442 by striking ‘‘2H4.1’’ and inserting 

‘‘2H5.1’’. 

Option 2: 

Chapter 3, Part A, Subpart 1 is 

amended by adding at the end the 

following: 

‘‘§ 3A1.5. Serious Human Rights 

Offense 

(a) If the defendant [was convicted 

of]/[committed] a serious human rights 

offense, increase by [4]–[12] levels; but 

if the resulting offense level is less than 

level [24]–[32], increase to level [24]– 

[32]. 

(b) In each such case, the defendant’s 

criminal history category from Chapter 

Four (Criminal History and Criminal 

Livelihood) shall be [not lower than 

Category V][Category VI]. 

Commentary 

Application Notes: 

1. ‘Serious Human Rights Offense’.— 

For purposes of this guideline, ’serious 

human rights offense’ means violations 

of federal criminal laws relating to 

genocide, torture, war crimes, and the 

use or recruitment of child soldiers 

under sections 1091, 2340, 2340A, 2441, 

and 2442 of title 18, United States Code. 

See 28 U.S.C. § 509B(e). 

2. Computation of Criminal History 

Category.—Under subsection (b), if the 

defendant’s criminal history category as 

determined under Chapter Four 

(Criminal History and Criminal 

Livelihood) is less than Category [V][VI], 

it shall be increased to Category 

[V][VI].’’. 

(B) Immigration and Naturalization 

Offenses Involving Serious Human 

Rights Offenses 

Proposed Amendment: 

Section 2L2.1(b) is amended by 

adding at the end the following: 

‘‘(6) If the offense reflected an effort 

to avoid detection or responsibility for 

a serious human rights offense, increase 

by [10]–[18] levels.’’. 

The Commentary to § 2L2.1 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by adding at the end the 

following: 

‘‘ ‘Serious human rights offense’ 

means violations of federal criminal 

laws relating to genocide, torture, war 

crimes, and the use or recruitment of 

child soldiers under sections 1091, 

2340, 2340A, 2441, and 2442 of title 18, 

United States Code. See 28 U.S.C. 

§ 509B(e).’’. 

Section 2L2.2(b) is amended by 

adding at the end the following: 

‘‘(4) If the offense reflected an effort 

to avoid detection or responsibility for 

a serious human rights offense, increase 

by [10]–[18] levels.’’. 

The Commentary to § 2L2.2 captioned 

‘‘Application Notes’’ is amended by 

redesignating Notes 4 and 5 as Notes 5 

and 6, respectively, and by inserting 

after Note 3 the following: 

‘‘4. Application of Subsection (b)(4).— 

For purposes of subsection (b)(4), 

’serious human rights offense’ means 

violations of federal criminal laws 

relating to genocide, torture, war crimes, 

and the use or recruitment of child 

soldiers under sections 1091, 2340, 

2340A, 2441, and 2442 of title 18, 

United States Code. See 28 U.S.C. 

§ 509B(e).’’; 

(C) Issues for Comment 

Issues for Comment: 

1. The Commission invites general 

comment on human rights offenses and 

human rights offenders and how these 

offenses and offenders compare with 

other offenses and offenders. For 

example, what activities are involved in 

human rights offenses? What are the 

characteristics of the offenders involved 

in these activities? What harms are 

posed by these activities? 

2. Do the guidelines provide 

appropriate guidelines penalties for 

cases involving human rights offenses? 

If not, what amendments are 

appropriate to ensure that the guidelines 

provide appropriate guidelines penalties 

for such cases? What penalty structure 

or structures should the guidelines 

provide for human rights offenses, and 

what penalty levels should the 

Commission provide? In considering 

whether the penalty levels and penalty 

structures for human rights offenses are 

appropriately proportional to other 

offenses, what are the other offenses to 

which the human rights offenses should 

be compared? 

In addition, the Commission seeks 

comment on whether Option 1 or 

Option 2 of Part A of the proposed 

amendment would provide appropriate 

guidelines penalties for cases involving 

human rights offenses. Should the 

Commission adopt Option 1 or Option 

2, or neither? 

Are there particular changes to the 

penalty levels in Option 1 that should 

be made? Are the alternative base 

offense levels appropriate, or should 

they be raised or lowered? Are the levels 

provided by the specific offense 

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characteristics appropriate, or should 

they be raised or lowered? Should the 

Commission revise Option 1 to provide 

cross-references to any other Chapter 

Two offense guidelines? 

Option 1 specifies the manner in 

which the new guideline would interact 

with certain Chapter Three adjustments. 

Are there particular changes that should 

be made to Option 1 to change how the 

new guideline would interact with the 

various Chapter Three adjustments? 

3. The Commission seeks comment on 

what guidance should be given to courts 

in determining whether a particular 

offense is, or is not, a human rights 

offense for purposes of Parts A and B of 

the proposed amendment. Parts A and 

B would apply only to the offenses 

defined as ‘‘serious human rights 

offenses’’ in 28 U.S.C. 509B(e), which 

includes genocide, war crimes, torture, 

and the recruitment or use of child 

soldiers. Should the Commission add 

other offenses or categories of offenses 

and, if so, what offenses or categories of 

offenses? 

4. The Commission seeks comment on 

aggravating and mitigating 

circumstances in cases involving human 

rights offenses. In particular: 

A. Direct Prosecution of Human Rights 

Offenses 

In cases in which the defendant is 

directly prosecuted for a human rights 

offense, are there aggravating and 

mitigating circumstances that should be 

taken into account in establishing what 

level of enhancement should apply, 

what minimum offense level should 

apply, and what Criminal History 

Category should apply? If so, what are 

the circumstances, and how should they 

be taken into account in the guidelines? 

B. Immigration and Naturalization 

Fraud Involving Human Rights Offenses 

In cases in which the defendant is 

convicted of an immigration or 

naturalization fraud involving a human 

rights offense, are there aggravating and 

mitigating circumstances that should be 

taken into account in establishing what 

level of enhancement should apply and 

what minimum offense level should 

apply? If so, what are the circumstances, 

and how should they be taken into 

account in the guidelines? 

For example, there appear to be cases 

in which the defendant is convicted of 

an immigration or naturalization fraud 

and the evidence is sufficient to 

establish (1) That the defendant 

concealed the defendant’s membership 

in a foreign military or paramilitary 

organization and (2) that the 

organization was involved in a human 

rights violation, but the evidence is not 

sufficient to establish (3) that the 

defendant was involved in the human 

rights violation. In such a case, should 

the establishment of (1) and (2) (or, in 

the alternative, of (1) alone) be an 

aggravating factor in the guidelines, 

warranting an enhancement or an 

upward departure provision? 

The enhancements in Part B of the 

proposed amendment bracket a range of 

penalty levels, from [10] to [18]. Should 

the Commission provide a tiered 

enhancement, with different levels of 

enhancement based on different 

aggravating or mitigating circumstances? 

For example, should an enhancement of 

10 levels apply in certain cases, and an 

enhancement of 18 levels apply in 

certain other cases? If so, what 

aggravating or mitigating circumstances 

should the Commission provide, and 

what levels should apply? 

C. Amnesty 

How, if at all, should the guidelines 

account for circumstances in which the 

defendant committed a human rights 

offense but received amnesty (or some 

similar mitigating measure) in the 

country where the conduct occurred? 

Should such a circumstance warrant a 

reduction or a downward departure? 

4. ‘‘Sentence Imposed’’ in § 2L1.2 

Synopsis of Proposed Amendment: 

This proposed amendment responds to 

a circuit conflict over application of the 

term ‘‘sentenced imposed’’ in § 2L1.2 

(Unlawfully Entering or Remaining in 

the United States) when the defendant’s 

original ‘‘sentence imposed’’ was 

lengthened after the defendant was 

deported. 

Section 2L1.2(b)(1) provides an 

enhancement if the defendant 

previously was deported, or unlawfully 

remained in the United States, after a 

conviction for a felony drug trafficking 

offense. The level of the enhancement 

depends on the ‘‘sentence imposed’’ for 

the felony drug trafficking offense. 

Specifically: 

(1) if the ‘‘sentence imposed’’ 

exceeded 13 months, the enhancement 

is 16 or 12 levels, depending on whether 

the conviction receives criminal history 

points. See § 2L1.2(b)(1)(A); and 

(2) if the ‘‘sentence imposed’’ was 13 

months or less, the enhancement is 12 

or 8 levels, depending on whether the 

conviction receives criminal history 

points. See § 2L1.2(b)(1)(B). 

The term ‘‘sentence imposed’’ is 

defined in Application Note 1(B)(vii) as 

follows: 

‘‘Sentence imposed’’ has the meaning 

given the term ‘‘sentence of imprisonment’’ 

in Application Note 2 and subsection (b) of 

§ 4A1.2 (Definitions and Instructions for 

Computing Criminal History), without regard 

to the date of the conviction. The length of 

the sentence imposed includes any term of 

imprisonment given upon revocation of 

probation, parole, or supervised release. 

The conflict arises when the 

defendant was sentenced on two or 

more different occasions for the same 

drug trafficking conviction (e.g., because 

of a revocation of supervision), such 

that there was a sentence imposed 

before the defendant’s deportation and 

another, longer sentence imposed after 

the deportation. 

The Fifth, Seventh, and Eleventh 

Circuits have held that the later, higher 

sentence does not apply for purposes of 

the enhancement in § 2L1.2(b)(1). See 

United States v. Lopez, 634 F.3d 948 

(7th Cir. 2011); United States v. 

Guzman-Bera, 216 F.3d 1019 (11th Cir. 

2000); United States v. Bustillos-Pena, 

612 F.3d 863 (5th Cir. 2010). These 

cases generally reason that there is a 

‘‘temporal restriction’’ inherent in the 

enhancement and conclude that the 

‘‘sentence imposed’’ is determined as of 

when the defendant was deported or 

unlawfully remained in the United 

States. See, e.g., Lopez, 634 F.3d at 950. 

The Second Circuit has held 

otherwise, concluding that the later, 

higher sentence does apply. See United 

States v. Compres-Paulino, 393 F.3d 116 

(2d Cir. 2004). According to the Second 

Circuit, the enhancement requires only 

that the conviction have occurred, not 

that the sentence also be imposed, as of 

when the defendant was deported or 

unlawfully remained in the United 

States. For the Second Circuit, any 

‘‘amended sentence, whenever imposed, 

relates back to this conviction’’ and is 

covered by the enhancement. See id. at 

118. 

The proposed amendment resolves 

the conflict by amending the definition 

of ‘‘sentence imposed’’ in Application 

Note 1(B)(vii). Two bracketed options 

are presented. The first option follows 

the approach of the Fifth, Seventh, and 

Eleventh Circuits and specifies that a 

post-revocation sentence increase is 

included, ‘‘but only if the revocation 

occurred before the defendant was 

deported or unlawfully remained in the 

United States’’. The second option 

follows the approach of the Second 

Circuit and specifies that a postrevocation sentence increase is 

included, ‘‘without regard to whether 

the revocation occurred before or after 

the defendant previously was deported 

or unlawfully remained in the United 

States’’. 

Proposed Amendment: 

The Commentary to § 2L1.2 captioned 

‘‘Application Notes’’ is amended in 

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Note 1(B)(vii) by inserting before the 

period at the end the following: 

‘‘[, but only if the revocation occurred 

before the defendant was deported or 

unlawfully remained in the United 

States][, without regard to whether the 

revocation occurred before or after the 

defendant was deported or unlawfully 

remained in the United States]’’. 

5. Categorical Approach 

Synopsis of Proposed Amendment: 

This proposed amendment presents 

options for specifying the types of 

documents that may be considered in 

determining whether a particular prior 

conviction fits within a particular 

category of crimes for purposes of 

specific guidelines provisions (e.g., 

determining whether a defendant’s prior 

conviction for nonresidential burglary 

under a particular state statute qualifies 

as an ‘‘aggravated felony’’ for purposes 

of § 2L1.2(b)(1)(C)). 

A number of guidelines and statutes 

contain provisions that use a prior 

conviction as an aggravating factor if the 

prior conviction fits within a particular 

category of crimes. Two Supreme Court 

decisions, Taylor v. United States, 495 

U.S. 575 (1990), and Shepard v. United 

States, 544 U.S. 13 (2005), set forth a 

‘‘categorical approach’’ for determining 

whether a particular prior conviction 

fits within a particular category of 

crimes. 

Taylor holds that, in making such a 

determination, a sentencing court may 

‘‘look only to the fact of conviction and 

the statutory definition of the prior 

offense.’’ Taylor, 495 U.S. at 602. 

Because the court is not concerned with 

the ‘‘facts underlying the prior 

convictions,’’ id. at 600–02, the court 

may not focus on the underlying 

criminal conduct itself. This categorical 

approach ‘‘may permit the sentencing 

court to go beyond the mere fact of 

conviction in a narrow range of cases 

where a jury was actually required to 

find all the elements’’ of the offense. Id. 

at 602. Thus, a prior conviction fits 

within the particular category of crimes 

‘‘if either its statutory definition 

substantially corresponds to [the 

definition of the crime], or the charging 

paper and jury instructions actually 

required the jury to find all the elements 

of [the specified crime] in order to 

convict the defendant.’’ Id. 

Shepard applied Taylor to a case in 

which the prior conviction was the 

result of a guilty plea. In such a case, the 

Court held, the sentencing court may 

look to a limited list of documents to 

determine the class of offense: ‘‘The 

terms of the charging document, the 

terms of the plea agreement or transcript 

of colloquy between judge and 

defendant in which the factual basis for 

the plea was confirmed by the 

defendant, or to some comparable 

judicial record of this information.’’ 

Shepard, 544 U.S. at 26. 

In cases where the defendant’s prior 

conviction involved a provision that 

covers both conduct that fits within the 

category and conduct that does not, the 

Court has authorized courts to look at 

the judicial record to determine whether 

the prior conviction was in fact based 

on conduct that fit within the category 

of crimes. This analysis is called the 

‘‘modified categorical approach.’’ Under 

this modified approach, the court may 

consider only those sources approved 

by Taylor and Shepard—the charging 

document, the jury instructions, any 

plea agreement or plea statement, or 

‘‘some comparable judicial record of 

this information.’’ The Fifth Circuit has 

extended this list to include New York 

Certificates of Disposition, see United 

States v. Bonilla, 524 F.3d 647 (5th Cir. 

2008), and the Ninth Circuit has 

included California Minute Entries, see 

United States v. Snellenberger, 548 F.3d 

699 (9th Cir. 2008). On the other hand, 

courts have disallowed the use of a 

federal presentencing report, see, e.g., 

United States v. Garza-Lopez, 410 F.3d 

268 (5th Cir. 2005), a California abstract 

of judgment, see, e.g., United States v. 

Gutierrez-Ramirez, 405 F.3d 352 (5th 

Cir. 2005), or a police report, see, e.g., 

Shepard, 544 U.S. at 16; United States 

v. Almazan-Becerra, 482 F.3d 1085, 

1090 (9th Cir. 2007) (noting that ‘‘[t]he 

Supreme Court appears to have 

foreclosed the use of police reports in a 

Taylor analysis’’ but that such reports 

may be used when stipulated to by the 

defendant). 

Notably, the Supreme Court cases 

have involved statutes rather than 

guidelines. However, lower courts have 

by analogy applied the ‘‘categorical 

approach’’ to guideline provisions. 

The proposed amendment presents 

options for specifying the types of 

documents that may be considered for 

purposes of the guidelines in 

determining whether a particular prior 

conviction fits within a particular 

category of crimes. Option 1 would 

apply only to determinations under the 

illegal reentry guideline, § 2L1.2 

(Unlawfully Entering or Remaining in 

the United States). Option 2 would 

apply throughout the Guidelines 

Manual in any case in which the nature 

of the prior conviction is a disputed 

factor. 

Both options contain four options, 

each of which would specifically 

authorize the sentencing court to look to 

certain sources of information beyond 

the fact of conviction and the statutory 

definition of the prior offense. 

It appears that Taylor and Shepard 

specifically authorize the sentencing 

court to look to four sources of 

information beyond the fact of 

conviction and the statutory definition 

of the prior offense: 

(i) The terms of the charging 

document; 

(ii) The terms of the plea agreement or 

transcript of colloquy between judge 

and defendant in which the factual basis 

for the plea was confirmed by the 

defendant; 

(iii) Any explicit factual finding by 

the trial judge to which the defendant 

assented; and 

(iv) Some comparable judicial record 

of this information. 

Option A would specify these four 

sources of information. Option B would 

incorporate Option A and add as a fifth 

source of information ‘‘any 

uncontradicted, internally consistent 

parts of the record from the prior 

conviction’’. See Shepard, 544 U.S. at 

31 (‘‘I would expand that list to include 

any uncontradicted, internally 

consistent parts of the record from the 

earlier conviction. That would include 

the two sources the First Circuit relied 

upon in this case,’’ which consisted of 

‘‘the applications by which the police 

had secured the criminal complaints 

and the police reports attached to those 

applications.’’ [Emphasis in original.]) 

(O’Connor, J., dissenting). Option C 

would incorporate Option A and add as 

a fifth source of information ‘‘any other 

parts of the record from the prior 

conviction, provided that the 

information in such other parts of the 

record has sufficient indicia of 

reliability to support its probable 

accuracy’’. See § 6A1.3 (Resolution of 

Disputed Factors)(Policy Statement). 

Option D would combine all three 

options, incorporating Option A as well 

as the additional sources of information 

in both Options B and C. 

Issues for comment are also included. 

Proposed Amendment: 

Option 1: 

The Commentary to § 2L1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by adding at the end the 

following: 

‘‘[Option A: 

(D) Documents Considered in 

Determining Whether Prior Conviction 

Falls Within Category of Offense.—In 

determining for purposes of subsection 

(b)(1) whether a prior conviction falls 

within a category of offense (e.g., 

whether a prior conviction qualifies as 

a ‘crime of violence’ or ‘aggravated 

felony’), beyond the fact of conviction 

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and the statutory definition of the prior 

offense, the court may look only to— 

(i) The terms of the charging 

document, 

(ii) The terms of the plea agreement or 

transcript of colloquy between judge 

and defendant in which the factual basis 

for the plea was confirmed by the 

defendant, 

(iii) Any explicit factual finding by 

the trial judge to which the defendant 

assented, or 

(iv) Some comparable judicial record 

of this information.] 

[Option B incorporates Option A, but 

also adds: 

(v) Any uncontradicted, internally 

consistent parts of the record from the 

prior conviction.] 

[Option C incorporates Option A, but 

also adds: 

(v) Any other parts of the record from 

the prior conviction, provided that the 

information in such other parts of the 

record has sufficient indicia of 

reliability to support its probable 

accuracy. See subsection (a) to § 6A1.3 

(Resolution of Disputed Factors).] 

[Option D combines all three options, 

i.e., it incorporates Option A and also 

adds the additional sources of 

information in both Options B and C, as 

follows: 

(v) Any uncontradicted, internally 

consistent parts of the record from the 

prior conviction; or 

(vi) Any other parts of the record from 

the prior conviction, provided that the 

information in such other parts of the 

record has sufficient indicia of 

reliability to support its probable 

accuracy. See subsection (a) to § 6A1.3 

(Resolution of Disputed Factors).]’’. 

Option 2: 

The Commentary to § 6A1.3 is 

amended by adding at the end the 

following: 

‘‘[Option A: 

In resolving a dispute as to whether 

a prior conviction falls within a category 

of offense for purposes of a guidelines 

provision (e.g., whether a prior 

conviction qualifies as a ‘crime of 

violence’ or an ‘aggravated felony’), 

beyond the fact of the conviction and 

the statutory definition of the prior 

offense, the information that has 

sufficient indicia of reliability to 

support its probable accuracy is limited 

to— 

(A) The terms of the charging 

document; 

(B) The terms of the plea agreement or 

transcript of colloquy between judge 

and defendant in which the factual basis 

for the plea was confirmed by the 

defendant; 

(C) Any explicit factual finding by the 

trial judge to which the defendant 

assented; or 

(D) Some comparable judicial record 

of this information.] 

[Option B incorporates Option A, but 

also adds: 

(E) Any uncontradicted, internally 

consistent parts of the record from the 

prior conviction.] 

[Option C incorporates Option A, but 

also adds: 

(E) Any other parts of the record from 

the prior conviction for which there is 

sufficient indicia of reliability to 

support its probable accuracy.] 

[Option D combines all three options, 

i.e., it incorporates Option A and also 

adds the additional sources of 

information in both Options B and C, as 

follows: 

(E) Any uncontradicted, internally 

consistent parts of the record from the 

prior conviction; or 

(F) Any other parts of the record from 

the prior conviction for which there is 

sufficient indicia of reliability to 

support its probable accuracy.]’’. 

Issues for Comment: 

1. The proposed amendment provides 

four options for specifying the types of 

documents that may be considered in 

determining whether a particular prior 

conviction fits within a particular 

category of crimes. Are there any other 

types of documents that the 

Commission should include among the 

types of documents specified as 

documents that may be considered for 

this purpose? If so, what types of 

documents? 

2. Option 1 of the proposed 

amendment amends only § 2L1.2. 

However, the Supreme Court’s 

‘‘categorical approach’’ has been applied 

by lower courts to a variety of other 

guidelines that contain provisions that 

use a prior conviction as an aggravating 

factor if the prior conviction fits within 

a particular category of crimes. Among 

the most commonly applied are § 2K2.1 

(Unlawful Receipt, Possession, or 

Transportation of Firearms or 

Ammunition; Prohibited Transactions 

Involving Firearms or Ammunition) and 

§ 4B1.1 (Career Offender), each of which 

contain provisions that use a prior 

conviction as an aggravating factor if the 

prior conviction is a ‘‘crime of violence’’ 

or a ‘‘controlled substance offense’’. See, 

e.g., § 2K2.1(a)(1)–(4), § 4B1.1(a). 

Accordingly, Option 2 of the proposed 

amendment would apply throughout the 

Guidelines Manual. 

As an alternative to Options 1 and 2, 

should the Commission apply the 

proposed amendment more broadly 

than Option 1 (§ 2L1.2-only) but more 

narrowly than Option 2 (guidelineswide)? In particular, should the 

Commission apply the proposed 

amendment to § 2L1.2 as well as one or 

more other specific guidelines? If so, 

which guidelines should the 

Commission amend? 

6. Driving While Intoxicated 

Synopsis of Proposed Amendment: 

This proposed amendment responds to 

an application issue regarding when a 

defendant’s prior sentence for driving 

while intoxicated or driving under the 

influence (and similar offenses by 

whatever name they are known) is 

counted toward the defendant’s 

criminal history score. There appear to 

be differences among the circuits on this 

issue. 

The issue does not occur when the 

prior sentence is a felony, because 

‘‘[s]entences for all felony offenses are 

counted.’’ See subsection (c) of § 4A1.2 

(Definitions and Instructions for 

Computing Criminal History). However, 

when the prior sentence is a 

misdemeanor or petty offense, circuits 

have taken different approaches. 

When the prior sentence is a 

misdemeanor or petty offense, 

§ 4A1.2(c) specifies that the offense is 

counted, but with two exceptions, 

which are limited to cases in which the 

prior offense is on (or similar to an 

offense that is on) either of two lists. On 

the first list are offenses from ‘‘careless 

or reckless driving’’ to ‘‘trespassing,’’ 

and the exception applies if the prior 

offense is on (or similar to an offense 

that is on) the list. In such a case, the 

sentence is counted only if (A) the 

sentence was a term of probation of 

more than one year or a term of 

imprisonment of at least thirty days, or 

(B) the prior offense was similar to an 

instant offense. See § 4A1.2(c)(1). On the 

second list are offenses from ‘‘fish and 

game violations’’ to ‘‘vagrancy,’’ and the 

exception applies to any offense that is 

on (or similar to an offense that is on) 

the list. In such a case, the sentence is 

never counted. See § 4A1.2(c)(2). 

Several circuits have held that a 

sentence for driving while intoxicated— 

whether a felony, misdemeanor, or petty 

offense—is always counted toward the 

criminal history score, without 

exception, even if the offense met the 

criteria for either of the two lists. These 

circuits rely on Application Note 5 to 

§ 4A1.2, which provides: 

Sentences for Driving While Intoxicated or 

Under the Influence.—Convictions for 

driving while intoxicated or under the 

influence (and similar offenses by whatever 

name they are known) are counted. Such 

offenses are not minor traffic infractions 

within the meaning of § 4A1.2(c). 

The Seventh Circuit has read 

Application Note 5 as ‘‘reflect[ing] the 

Sentencing Commission’s conclusion 

‘that driving while intoxicated offenses 

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are of sufficient gravity to merit 

inclusion in the defendant’s criminal 

history, however they might be 

classified under state law.’ ’’ United 

States v. LeBlanc, 45 F.3d 192, 195 (7th 

Cir. 1995) (quoting United States v. 

Jakobetz, 955 F.2d 786, 806 (2d Cir. 

1992)). Thus, the Seventh Circuit has 

held, a sentence for driving while 

intoxicated is always counted, without 

exception. For example, such a sentence 

is counted even though it may otherwise 

qualify for a second-list exception, see 

LeBlanc, supra, 45 F.3d at 194–95 

(sentence counts even though it was a 

local ordinance violation that was not 

also a violation under state criminal 

law). 

The Eighth Circuit has also relied on 

Application Note 5 to hold that a 

sentence for driving while intoxicated is 

always counted, without exception. See 

United States v. Pando, 545 F.3d 682 

(8th Cir. 2008) (Colorado misdemeanor 

for driving a vehicle when a person has 

consumed alcohol or one or more other 

drugs which ‘‘affects the person to the 

slightest degree so that the person is less 

able than the person ordinarily would 

have been’’ to operate a vehicle was 

‘‘similar’’ to driving while intoxicated or 

under the influence, and therefore 

automatically counted, without regard 

to the exceptions in § 4A1.2(c)(1) and 

(2)). 

The Second Circuit took a different 

approach in United States v. PotesCastillo, 638 F.3d 106 (2d Cir. 2011). In 

that case, the Second Circuit held 

Application Note 5 to be ambiguous and 

could be read either (1) to ‘‘mean that, 

like felonies, driving while ability 

impaired sentences are always counted, 

without possibility of exception’’ or (2) 

‘‘as setting forth the direction that 

driving while ability impaired sentences 

must not be treated as minor traffic 

infractions or local ordinance violations 

and excluded under section 

4A1.2(c)(2).’’ Id. at 110–11. The Second 

Circuit adopted the second reading and, 

accordingly, held that a prior sentence 

for driving while ability impaired 

‘‘should be treated like any other 

misdemeanor or petty offense, except 

that they cannot be exempted under 

section 4A1.2(c)(2).’’ Id. at 113. 

Accordingly, such a sentence can 

qualify for an exception under the first 

list (e.g., if it was similar to ‘‘careless or 

reckless driving’’ and the other criteria 

for a first-list exception were met). 

The proposed amendment responds to 

the application issue by amending 

Application Note 5 consistent with the 

approaches of the Seventh and Eighth 

Circuits. Specifically, it amends 

Application Note 5 to clarify that such 

a sentence is always counted, without 

regard to how the offense is classified 

and without regard to whether any 

exception in § 4A1.2(c)(1) or (2) 

otherwise applies. 

Proposed Amendment: 

The Commentary to § 4A1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 5 by striking ‘‘are counted. Such 

offenses are not minor traffic infractions 

within the meaning of § 4A1.2(c).’’ and 

inserting ‘‘are always counted, without 

regard to how the offense is classified 

and without regard to whether any 

exception in § 4A1.2(c)(1) or (2) 

otherwise applies.’’. 

7. Burglary of a Non-Dwelling 

Synopsis of Proposed Amendment: 

This proposed amendment responds to 

differences among the circuits on when, 

if at all, burglary of a non-dwelling 

qualifies as a crime of violence for 

purposes of the guidelines. Under a 

variety of guidelines, a defendant’s 

sentence is subject to enhancement if 

the defendant previously committed a 

crime of violence. 

The term ‘‘crime of violence’’ is 

defined in several different ways in the 

guidelines and in statute. The definition 

that has given rise to the differences 

among the circuits is contained in 

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

Terms Used in Section 4B1.1). This 

definition is used not only for 

determining whether a defendant’s 

sentence is subject to enhancement in 

§ 4B1.1, but also for determining 

whether a defendant’s sentence is 

subject to enhancement in a variety of 

other guidelines. See, e.g., § 2K1.3(a)(1)– 

(2) & comment. (n.2); § 2K2.1(a)(1), (2), 

(3)(B), (4)(A) & comment. (n.1), 

§ 2K2.1(b)(5) & comment. (n.13(B)); 

§ 2S1.1(b)(1)(B)(ii) & comment. (n.1); 

§ 4A1.1(e) & comment. (n.5). 

The definition in § 4B1.2(a) provides, 

among other things, that a felony is a 

crime of violence if it ‘‘is burglary of a 

dwelling, arson, or extortion, involves 

use of explosives, or otherwise involves 

conduct that presents a serious potential 

risk of physical injury to another.’’ 

Thus, § 4B1.2(a) specifies that burglary 

of a dwelling is always a crime of 

violence but is silent about burglary of 

a non-dwelling. 

Courts have observed that this clause 

in § 4B1.2(a) substantially parallels a 

clause in 18 U.S.C. 924(e), except that 

the statutory provision specifies that 

any burglary is a crime of violence 

while the guideline provision is more 

limited, specifying that burglary of a 

dwelling is a crime of violence. There 

are different approaches among the 

circuits about whether burglary of a 

non-dwelling is a crime of violence 

under § 4B1.2(a). The Fourth, Tenth, 

and Eleventh Circuits have held that 

burglary of a non-dwelling is never a 

crime of violence under § 4B1.2(a). See, 

e.g., United States v. Smith, 10 F.3d 724, 

733 (10th Cir. 1993) (per curiam) 

(holding that, in promulgating § 4B1.2 

with language limiting a crime of 

violence to ‘‘burglary of a dwelling,’’ the 

Commission ‘‘obviously declined’’ to 

adopt the view that all burglaries 

present the serious potential risk of 

physical injury to another necessary to 

bring the crime within the residual 

clause); see also United States v. 

Harrison, 58 F.3d 115, 119 (4th Cir. 

1995); United States v. Spell, 44 F.3d 

936, 938–39 (11th Cir. 1995) (per 

curiam). The Second and Eighth 

Circuits have held that burglary of a 

non-dwelling is always a crime of 

violence under § 4B1.2(a). See, e.g., 

United States v. Brown, 514 F.3d 256, 

264–67 (2d Cir. 2008) (concluding that 

burglary of a non-dwelling falls within 

the residual clause at § 4B1.2(a) in light 

of the identically worded residual 

clause in § 924(e), the circuit court’s 

previous holding that the residual 

clause in § 924(e) includes burglary of a 

non-dwelling, and the absence of a 

relevant statement by the Commission 

on the issue); see also United States v. 

Ross, 613 F.3d 805, 809 (8th Cir. 2010). 

The First, Fifth, Sixth, Seventh, and 

Ninth Circuits have declined to adopt 

per se rules, holding instead that the 

question depends on the individual 

circumstances of each case. See, e.g., 

United States v. Giggey, 551 F.3d 27 (1st 

Cir. 2008) (en banc); United States v. 

Matthews, 374 F.3d 872, 880 (9th Cir. 

2004); United States v. Hoults, 240 F.3d 

647, 651–52 (7th Cir. 2001); United 

States v. Wilson, 168 F.3d 916, 928 (6th 

Cir. 1999); United States v. Turner, 349 

F.3d 833 (5th Cir. 2003). 

The proposed amendment presents 

two options for resolving this issue. The 

first option specifies that all burglaries 

are crimes of violence. The second 

option specifies that burglary of a nondwelling is not a crime of violence 

[, unless the offense meets the 

requirement of subsection (a)(1), i.e., it 

has as an element the use, attempted 

use, or threatened use of physical force 

against the person of another]. 

Two issues for comment are also 

provided. The first issue for comment 

asks whether the Commission should 

consider a third option, i.e., to specify 

that whether burglary of a non-dwelling 

is a crime of violence depends on the 

individual circumstances of each case. 

The second issue for comment asks 

whether the Commission should also 

address the definition of ‘‘crime of 

violence’’ in ’2L1.2, which presents a 

similar issue. 

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Proposed Amendment: 

Option 1: 

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

striking ‘‘burglary of a dwelling’’ and 

inserting ‘‘burglary’’. 

The Commentary to § 4B1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 1, in the paragraph that begins 

‘‘ ‘Crime of violence’ includes’’, by 

striking ‘‘burglary of a dwelling’’ and 

inserting ‘‘burglary’’. 

Option 2: 

The Commentary to § 4B1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by inserting after the paragraph 

that begins ‘‘ ‘Crime of violence’ 

includes’’ the following: 

‘‘ ‘Crime of violence’ does not include 

burglary of a structure other than a 

dwelling [, unless the offense meets the 

requirement of subsection (a)(1), i.e., it 

has as an element the use, attempted 

use, or threatened use of physical force 

against the person of another].’’. 

Issues for Comment: 

1. The two options presented in the 

proposed amendment would amend 

§ 4B1.2 in either of two ways—to 

specify that the offense of burglary is 

always a crime of violence, or to specify 

that the offense of burglary of a nondwelling is never a crime of violence. 

Should the Commission instead 

consider a third option—to specify that, 

in determining whether burglary of a 

non-dwelling is a crime of violence 

under § 4B1.2(a), the court should 

determine whether the particular 

offense satisfies the requirements of the 

definition’s residual clause (i.e., 

whether the offense ‘‘involves conduct 

that presents a serious potential risk of 

physical injury to another’’)? 

2. The issue of whether burglary of a 

non-dwelling is a crime of violence is 

also presented in § 2L1.2 (Unlawfully 

Entering or Remaining in the United 

States), which contains its own 

definition of ‘‘crime of violence’’. That 

definition, as with the definition in 

§ 4B1.2(a), specifies that burglary of a 

dwelling is a crime of violence, but is 

silent about burglary of a non-dwelling. 

If the Commission amends the 

definition in § 4B1.2 to clarify when, if 

at all, burglary of a non-dwelling is a 

crime of violence, should it also make 

a parallel change to the definition in 

§ 2L1.2? 

8. Multiple Counts (§ 5G1.2) 

Synopsis of Proposed Amendment: 

This proposed amendment responds to 

an application issue regarding the 

applicable guideline range in a case in 

which the defendant is sentenced on 

multiple counts of conviction, at least 

one of which involves a mandatory 

minimum sentence that is greater than 

the minimum of the otherwise 

applicable guideline range. There are 

differences among the circuits on this 

issue. 

The issue arises under § 5G1.2 

(Sentencing on Multiple Counts of 

Conviction) when at least one count in 

a multiple-count case involves a 

mandatory minimum sentence that 

affects the otherwise applicable 

guideline range. In such cases, circuits 

differ over whether the guideline range 

is affected only for the count involving 

the mandatory minimum or for all 

counts in the case. The cases indicate 

that there may also be an ancillary 

application issue over how the ‘‘total 

punishment’’ is to be determined and 

imposed under § 5G1.1(b). 

The Fifth Circuit has held that, in 

such a case, the effect on the guideline 

range applies to all counts in the case. 

See United States v. Salter, 241 F.3d 

392, 395–96 (5th Cir. 2001). In that case, 

the guideline range on the Sentencing 

Table was 87 to 108 months, but one of 

the three counts carried a mandatory 

minimum sentence of 10 years (120 

months), which resulted in a guideline 

sentence of 120 months. The Fifth 

Circuit instructed the district court that 

the appropriate guideline sentence was 

120 months on each of the three counts. 

The Ninth Circuit took a different 

approach in United States v. EvansMartinez, 611 F.3d 635 (9th Cir. 2010), 

holding that, in such a case, ‘‘a 

mandatory minimum count becomes the 

starting point for any count that carries 

a mandatory minimum sentence higher 

than what would otherwise be the 

Guidelines sentencing range,’’ but ‘‘[a]ll 

other counts * * * are sentenced based 

on the Guidelines sentencing range, 

regardless of the mandatory minimum 

sentences that apply to other counts.’’ 

See id. at 637. The Ninth Circuit stated 

that it would be more ‘‘logical’’ to 

follow the Fifth Circuit’s approach but 

‘‘such logic is overcome by the precise 

language of the Sentencing Guidelines’’. 

See id. 

The District of Columbia Circuit 

appears to follow an approach similar to 

the Ninth Circuit. See United States v. 

Kennedy, 133 F.3d 53, 60–61 (DC Cir. 

1998) (one of two counts carried a 

mandatory sentence of life 

imprisonment; district court treated life 

imprisonment as the guidelines 

sentence for both counts; Court of 

Appeals reversed, holding that the 

appropriate guidelines range for the 

other count was 262 to 327 months). 

The proposed amendment adopts the 

approach followed by the Fifth Circuit 

and makes three changes to § 5G1.2. 

First, it amends § 5G1.2(b) to clarify 

that the court is to determine the total 

punishment (i.e., the combined length 

of the sentences to be imposed) and 

impose that total punishment on each 

count, except to the extent otherwise 

required by law. 

Second, it amends the Commentary to 

clarify that the defendant’s guideline 

range in a multiple-count case may be 

restricted by a mandatory minimum 

penalty or statutory maximum penalty 

in a manner similar to how the 

guideline range in a single-count case 

may be restricted by a minimum or 

maximum penalty under § 5G1.1 

(Sentencing on a Single Count of 

Conviction). Specifically, it clarifies that 

when any count involves a mandatory 

minimum that restricts the defendant’s 

guideline range, the guideline range is 

restricted as to all counts. It also 

provides examples of how these 

restrictions operate. 

Third, it amends the commentary to 

clarify that in a case in which a 

defendant’s guideline range was affected 

or restricted by a mandatory minimum 

penalty, the court is resentencing the 

defendant, and the mandatory minimum 

sentence no longer applies, the court 

shall redetermine the defendant’s 

guideline range for purposes of the 

remaining counts without regard to the 

mandatory minimum penalty. 

Proposed Amendment: 

Section 5G1.2 is amended by striking 

subsection (b) and inserting the 

following: 

‘‘(b) For all counts not covered by 

subsection (a), the court shall determine 

the total punishment (i.e., the combined 

length of the sentences to be imposed) 

and shall impose that total punishment 

on each such count, except to the extent 

otherwise required by law.’’. 

The Commentary to § 5G1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 1, in the paragraph that begins ‘‘In 

General.—’’, by striking the period at the 

end and inserting ‘‘and determining the 

defendant’s guideline range on the 

Sentencing Table in Chapter Five, Part 

A (Sentencing Table).’’; and by inserting 

after such paragraph the following: 

‘‘Note that the defendant’s guideline 

range on the Sentencing Table may be 

affected or restricted by a statutorily 

authorized maximum sentence or a 

statutorily required minimum sentence 

not only in a single-count case, see 

§ 5G1.1 (Sentencing on a Single Count 

of Conviction), but also in a multiplecount case. See Note 3, below.’’. 

The Commentary to § 5G1.2 captioned 

‘‘Application Notes’’ is amended by 

redesignating Note 3 as Note 4; and by 

inserting after Note 2 the following: 

‘‘3. Application of Subsection (b).— 

(A) In General.—Subsection (b) 

provides that, for all counts not covered 

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by subsection (a), the court shall 

determine the total punishment (i.e., the 

combined length of the sentences to be 

imposed) and shall impose that total 

punishment on each such count, except 

to the extent otherwise required by law 

(such as where a statutorily required 

minimum sentence or a statutorily 

authorized maximum sentence 

otherwise requires). 

(B) Effect on Guidelines Range of 

Mandatory Minimum or Statutory 

Maximum.—The defendant’s guideline 

range on the Sentencing Table may be 

affected or restricted by a statutorily 

authorized maximum sentence or a 

statutorily required minimum sentence 

not only in a single-count case, see 

§ 5G1.1, but also in a multiple-count 

case. 

In particular, where a statutorily 

required minimum sentence on any 

count is greater than the maximum of 

the applicable guideline range, the 

statutorily required minimum sentence 

on that count shall be the guideline 

sentence on all counts. See § 5G1.1(b). 

Similarly, where a statutorily required 

minimum sentence on any count is 

greater than the minimum of the 

applicable guideline range, the 

guideline range for all counts is 

restricted by that statutorily required 

minimum sentence. See § 5G1.1(c)(2) 

and accompanying Commentary. 

However, where a statutorily 

authorized maximum sentence on a 

particular count is less than the 

minimum of the applicable guideline 

range, the sentence imposed on that 

count shall not be greater than the 

statutorily authorized maximum 

sentence on that count. See § 5G1.1(a). 

(C) Examples.—The following 

examples illustrate how subsection (b) 

applies, and how the restrictions in 

subparagraph (B) operate, when a 

statutorily required minimum sentence 

is involved. 

Defendant A and Defendant B are 

each convicted of the same four counts. 

Counts 1, 3, and 4 have statutory 

maximums of 10 years, 20 years, and 

2 years, respectively. Count 2 has a 

statutory maximum of 30 years and a 

mandatory minimum of 10 years. 

For Defendant A, the court determines 

that the final offense level is 19 and the 

defendant is in Criminal History 

Category I, which yields a guideline 

range on the Sentencing Table of 30 to 

37 months. Because of the 10-year 

mandatory minimum on Count 2, 

however, Defendant A’s guideline 

sentence is 120 months. See 

subparagraph (B), above. After 

considering that guideline sentence, the 

court determines that the appropriate 

‘total punishment’ to be imposed on 

Defendant A is 120 months. Therefore, 

subsection (b) requires that the total 

punishment of 120 months be imposed 

on each of Counts 1, 2, and 3. The 

sentence imposed on Count 4 is limited 

to 24 months, because a statutory 

maximum of 2 years applies to that 

particular count. 

For Defendant B, in contrast, the court 

determines that the final offense level is 

30 and the defendant is in Criminal 

History Category II, which yields a 

guideline range on the Sentencing Table 

of 108 to 135 months. Because of the 

10-year mandatory minimum on Count 

2, however, Defendant B’s guideline 

range is restricted to 120 to 135 months. 

See subparagraph (B), above. After 

considering that restricted guideline 

range, the court determines that the 

appropriate ‘total punishment’ to be 

imposed on Defendant B is 130 months. 

Therefore, subsection (b) requires that 

the total punishment of 130 months be 

imposed on each of Counts 2 and 3. The 

sentences imposed on Counts 1 and 4 

are limited to 120 months (10 years) and 

24 months (2 years), respectively, 

because of the applicable statutory 

maximums. 

(D) Special Rule on Resentencing.—In 

a case in which (i) the defendant’s 

guideline range on the Sentencing Table 

was affected or restricted by a statutorily 

required minimum sentence (as 

described in subparagraph (B)), (ii) the 

court is resentencing the defendant, and 

(iii) the statutorily required minimum 

sentence no longer applies, the 

defendant’s guideline range for 

purposes of the remaining counts shall 

be redetermined without regard to the 

previous effect or restriction of the 

statutorily required minimum 

sentence.’’. 

9. Rehabilitation 

Synopsis of Proposed Amendment: 

This proposed amendment responds to 

Pepper v. United States, 131 S.Ct. 1229 

(2011), which held, among other things, 

that a defendant’s post-sentencing 

rehabilitative efforts may be considered 

when the defendant is resentenced after 

appeal. See id. at 1236 (holding that 

‘‘when a defendant’s sentence has been 

set aside on appeal, a district court at 

resentencing may consider evidence of 

the defendant’s postsentencing 

rehabilitation and that such evidence 

may, in appropriate cases, support a 

downward variance from the nowadvisory Federal Sentencing 

Guidelines.’’). 

The policy statement in the guidelines 

on post-sentencing rehabilitation is 

§ 5K2.19 (Post-Sentencing Rehabilitative 

Efforts). Two options are presented: 

Option 1 repeals § 5K2.19. 

Option 2 amends § 5K2.19 to provide 

that rehabilitative efforts, whether preor post-sentencing, may be relevant in 

determining whether a departure is 

warranted, if the efforts, individually or 

in combination with other 

circumstances, are present to an 

unusual degree and distinguish the case 

from the typical cases covered by the 

guidelines. 

Option 2 also adds commentary to 

§ 5K2.19 that sets forth a two-part test 

for determining whether a departure 

may be warranted and factors for the 

court to consider in determining 

whether a departure may be warranted. 

See generally Pepper v. United States, 

supra; Gall v. United States, 552 U.S. 

38, 57–58 (2007) (in which the district 

court ‘‘quite reasonably attached great 

weight to the fact that [defendant] 

voluntarily withdrew from the 

conspiracy after deciding, on his own 

initiative, to change his life’’). 

Proposed Amendment: 

Option 1: 

Chapter Five, Part K, Subpart 2 is 

amended by striking § 5K2.19 and its 

accompanying commentary. 

Option 2: 

Chapter Five, Part K, Subpart 2 is 

amended by striking § 5K2.19 and its 

accompanying commentary and 

inserting the following: 

‘‘§ 5K2.19. Rehabilitative Efforts 

(Policy Statement) 

Rehabilitative efforts may be relevant 

in determining whether a departure is 

warranted if the rehabilitative efforts, 

individually or in combination with 

other circumstances, are present to an 

unusual degree and distinguish the case 

from the typical cases covered by the 

guidelines. 

In addition, pre-sentencing 

rehabilitative efforts may be relevant in 

determining acceptance of 

responsibility under § 3E1.1 

(Acceptance of Responsibility), and 

post-sentencing rehabilitative efforts 

may provide a basis for early 

termination of supervised release under 

18 U.S.C. 3583(e)(1). 

Commentary 

Application Note: 

1. In determining whether to provide 

a downward departure based on 

rehabilitative efforts, the court should 

consider whether the defendant engaged 

in a pattern of activity that demonstrates 

that (A) the defendant has been making 

a genuine and purposeful effort to lead 

a law-abiding life and (B) the effort is 

likely to be successful. 

The pattern of activity should involve 

specific rehabilitative acts. Examples of 

such acts are voluntarily withdrawing 

from a conspiracy, obtaining counseling, 

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entering drug treatment, maintaining 

regular employment, making efforts to 

remedy the harm caused by the offense, 

and making educational progress. 

The court may also consider the 

extent to which the specific 

rehabilitative acts were taken at the 

defendant’s own initiative. 

Background: A defendant’s postoffense rehabilitative efforts may be 

considered at sentencing. See, e.g., Gall 

v. United States, 552 U.S. 38 (2007). 

Such efforts may also be relevant in 

determining whether an adjustment 

applies under § 3E1.1 (Acceptance of 

Responsibility) and whether a departure 

is warranted under § 5K2.16 (Voluntary 

Disclosure of Offense). Similarly, a 

defendant’s post-sentencing 

rehabilitative efforts may be considered 

when the defendant is resentenced after 

appeal. See Pepper v. United States, 131 

S.Ct. 1229, 1236 (2011) (holding that 

‘when a defendant’s sentence has been 

set aside on appeal, a district court at 

resentencing may consider evidence of 

the defendant’s postsentencing 

rehabilitation’ and that such evidence 

‘may, in appropriate cases,’ support a 

sentence below the applicable guideline 

range).’’. 

10. Miscellaneous 

Synopsis of Proposed Amendment: 

This proposed multi-part amendment 

responds to miscellaneous issues arising 

from recently enacted legislation. 

Part A responds to the Cell Phone 

Contraband Act of 2010, Public Law 

111–225 (August 10, 2010), which 

amended 18 U.S.C. 1791 (Providing or 

possessing contraband in prison) to 

make it a class A misdemeanor to 

provide a mobile phone or similar 

device to an inmate, or for an inmate to 

possess a mobile phone or similar 

device—specifically, ‘‘a phone or other 

device used by a user of commercial 

mobile service (as defined in section 

332(d) of Title 47) in connection with 

such service’’. See 18 U.S.C. 

1791(d)(1)(F). Offenses under section 

1791 are referenced in Appendix A 

(Statutory Index) to § 2P1.2 (Providing 

or Possessing Contraband in Prison). 

The other class A misdemeanors in 

section 1791 involve currency, alcohol, 

and certain controlled substances; those 

other types of contraband receive a base 

offense level of 6 in § 2P1.2. The 

proposed amendment amends § 2P1.2 to 

assign mobile phones and similar 

devices to a particular alternative base 

offense level in the guidelines. Two 

options are presented. Option 1 assigns 

a base offense level of 13. Option 2 

assigns a base offense level of 6. 

Part B responds to the Prevent All 

Cigarette Trafficking Act of 2009 (PACT 

Act), Public Law 111–154 (enacted 

March 31, 2010). The PACT Act made 

a series of revisions to the Jenkins Act, 

15 U.S.C. 575 et seq., which is one of 

several laws governing the sale, 

shipment and taxation of cigarettes and 

smokeless tobacco. First, the PACT Act 

raised the criminal penalty at 15 U.S.C. 

377 for a knowing violation of the 

Jenkins Act from a misdemeanor to a 

felony with a statutory maximum term 

of imprisonment of 3 years. The 

proposed amendment amends 

Appendix A (Statutory Index) to 

reference section 377 offenses to § 2T2.1 

(Non-Payment of Taxes). The possibility 

of an additional reference, to § 2T2.2 

(Regulatory Offenses), is bracketed. 

Second, the PACT Act created a new 

Class A misdemeanor at 18 U.S.C. 

1716E, prohibiting the knowing 

shipment of cigarettes and smokeless 

tobacco through the United States mail. 

The proposed amendment amends 

Appendix A (Statutory Index) to 

reference section 1716E offenses to 

either or both of two bracketed options, 

§ 2T2.1 and § 2T2.2. 

Part C responds to the Indian Arts and 

Crafts Amendments Act of 2010, Public 

Law 111–211 (July 29, 2010), which 

amended the criminal offense at 18 

U.S.C. 1159 (Misrepresentation of 

Indian produced goods and services) to 

reduce penalties for first offenders when 

the value of the goods involved is less 

than $1,000. The maximum term of 

imprisonment under section 1159 had 

been 5 years for a first offender and 15 

years for a repeat offender. The Act 

retained this penalty structure, except 

that the statutory maximum for a first 

offender was reduced to 1 year in a case 

in which the value of the goods 

involved is less than $1,000. The 

proposed amendment amends 

Appendix A (Statutory Index) to 

reference section 1159 offenses to 

§ 2B1.1 (Theft, Property Destruction, 

and Fraud). 

Part C also addresses an existing 

offense, 18 U.S.C. 1158 (Counterfeiting 

Indian Arts and Crafts Board trade 

mark), which makes it a crime to 

counterfeit or unlawfully affix a 

Government trade mark used or devised 

by the Indian Arts and Crafts Board or 

to make any false statement for the 

purpose of obtaining the use of any such 

mark. The maximum term of 

imprisonment under section 1158 is 5 

years for a first offender and 15 years for 

a repeat offender. Offenses under 

section 1158 are not referenced in 

Appendix A (Statutory Index). The 

proposed amendment references section 

1158 offenses to both § 2B1.1 and 

§ 2B5.3 (Criminal Infringement of 

Copyright or Trademark). 

Part D responds to Public Law 111– 

350 (enacted January 4, 2011), which 

enacted certain laws relating to public 

contracts as a new positive-law title of 

the Code—title 41, ‘‘Public Contracts’’. 

As part of this codification, two 

criminal offenses, 41 U.S.C. 53 and 

423(a)–(b), and their respective penalty 

provisions, 41 U.S.C. 54 and 423(e), 

were given new title 41 U.S.C. section 

numbers: Sections 8702 and 8707 for 

sections 53 and 54, and sections 2102 

and 2105 for sections 423(a)–(b) and 

423(e). The substantive offenses and 

their related penalties did not change. 

The proposed amendment makes 

clerical changes to Appendix A 

(Statutory Index) to reflect the 

renumbering and includes a reference 

for the new section 2102, whose 

predecessor section 423(a)–(b) was not 

referenced in Appendix A. 

Part E responds to the Animal Crush 

Video Prohibition Act of 2010, Public 

Law 111–294 (enacted December 9, 

2010), which substantially revised the 

criminal offense at 18 U.S.C. 48 (Animal 

crush videos). Section 48 makes it a 

crime to create or distribute an ‘‘animal 

crush video,’’ as defined in section 48 

(which requires, among other things, 

that the depiction be ‘‘obscene’’). The 

maximum term of imprisonment for a 

section 48 offense is 7 years. Section 48 

is not referenced in Appendix A 

(Statutory Index). The proposed 

amendment amends Appendix A 

(Statutory Index) to reference section 48 

offenses to § 2G3.1 (Importing, Mailing, 

or Transporting Obscene Matter; 

Transferring Obscene Matter to a Minor; 

Misleading Domain Names). An issue 

for comment is also included. 

Proposed Amendment 

(A) Cell Phone Contraband Act 

Section 2P1.2(a) is amended as 

follows: 

Option 1: In paragraph (2) by inserting 

after ‘‘ammunition,’’ the following: ‘‘[a 

mobile phone or similar device,]’’. 

Option 2: In paragraph (3) by inserting 

after ‘‘currency,’’ the following: ‘‘[a 

mobile phone or similar device,]’’. 

The Commentary to § 2P1.2 captioned 

‘‘Application Notes’’ is amended by 

redesignating Notes 1 and 2 as Notes 2 

and 3, respectively; and by inserting at 

the beginning the following: 

‘‘1. In this guideline, the term ‘mobile 

phone or similar device’ means a phone 

or other device as described in 18 U.S.C. 

§ 1791(d)(1)(F).’’. 

(B) Prevent All Cigarette Trafficking Act 

Appendix A (Statutory Index) is 

amended by inserting after the line 

referenced to 15 U.S.C. 158 the 

following: 

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‘‘15 U.S.C. § 377 2T2.1 [, 2T2.2]’’; 

and by inserting after the line referenced 

to 18 U.S.C. 1716D the following: 

‘‘18 U.S.C. § 1716E [2T2.1], 

[2T2.2]’’. 

(C) Indian Arts and Crafts Amendments 

Act 

Appendix A (Statutory Index) is 

amended by inserting after the line 

referenced to 18 U.S.C. 1153 the 

following: 

‘‘18 U.S.C. § 1158 2B1.1, 2B5.3 

18 U.S.C. § 1159 2B1.1’’. 

(D) Public Law 111–350 

Appendix A (Statutory Index) is 

amended by striking the following: 

‘‘41 U.S.C. § 53 2B4.1 

41 U.S.C. § 542B4.1 

41 U.S.C. § 423(e) 2B1.1, 2C1.1’’; 

and inserting the following: 

‘‘41 U.S.C. § 2102 2B1.1, 2C1.1 

41 U.S.C. § 2105 2B1.1, 2C1.1 

41 U.S.C. § 8702 2B4.1 

41 U.S.C. § 8707 2B4.1’’. 

(E) Animal Crush Video Prohibition Act 

of 2010 

Appendix A (Statutory Index) is 

amended by inserting after the line 

referenced to 18 U.S.C. 43 the following: 

‘‘18 U.S.C. § 48 2G3.1’’. 

Issue for Comment: 

1. The proposed amendment would 

reference offenses under 18 U.S.C. 48 

(Animal crush videos) to § 2G3.1. That 

guideline provides a base offense level 

of 10 and enhancements for distribution 

(ranging from 2 levels to 5 or more 

levels), certain conduct with intent to 

deceive a minor into viewing material 

that is harmful to minors (2 levels), use 

of a computer (2 levels), and material 

portrays sadistic or masochistic conduct 

or other depictions of violence (2 

levels). 

The Commission invites comment on 

offenses under section 48, including in 

particular the conduct involved in such 

offenses and the nature and seriousness 

of the harms posed by such offenses. Do 

the provisions in § 2G1.3 adequately 

account for offenses under section 48? If 

not, how should the Commission amend 

the guideline to account for offenses 

under section 48? For example, should 

the Commission provide one or more 

new alternative base offense levels, 

specific offense characteristics, or 

departure provisions to § 2G3.1 to better 

account for offenses under section 48? If 

so, what should the Commission 

provide? 

[FR Doc. 2012–886 Filed 1–18–12; 8:45 am] 

BILLING CODE 2210–40–P 

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