89142 Federal Register / Vol. 88, No. 246 / Tuesday, December 26, 2023 / Notices 

UNITED STATES SENTENCING 

COMMISSION 

Sentencing Guidelines for United 

States Courts 

AGENCY: United States Sentencing 

Commission. 

ACTION: Notice and request for public 

comment and hearing. 

SUMMARY: The United States Sentencing 

Commission is considering 

promulgating amendments to the 

sentencing guidelines, policy 

statements, and commentary. This 

notice sets forth the proposed 

amendments and, for each proposed 

amendment, a synopsis of the issues 

addressed by that amendment. This 

notice also sets forth several issues for 

comment, some of which are set forth 

together with the proposed 

amendments, and one of which 

(regarding retroactive application of 

proposed amendments) is set forth in 

the SUPPLEMENTARY INFORMATION section 

of this notice. 

DATES: 

Written Public Comment. Written 

public comment regarding the proposed 

amendments and issues for comment set 

forth in this notice, including public 

comment regarding retroactive 

application of any of the proposed 

amendments, should be received by the 

Commission not later than February 22, 

2024. Any public comment received 

after the close of the comment period 

may not be considered. 

Public Hearing. The Commission may 

hold a public hearing regarding the 

proposed amendments and issues for 

comment set forth in this notice. Further 

information regarding any public 

hearing that may be scheduled, 

including requirements for testifying 

and providing written testimony, as 

well as the date, time, location, and 

scope of the hearing, will be provided 

by the Commission on its website at 

www.ussc.gov. 

ADDRESSES: There are two methods for 

submitting public comment. 

Electronic Submission of Comments. 

Comments may be submitted 

electronically via the Commission’s 

Public Comment Submission Portal at 

https://comment.ussc.gov. Follow the 

online instructions for submitting 

comments. 

Submission of Comments by Mail. 

Comments may be submitted by mail to 

the following address: United States 

Sentencing Commission, One Columbus 

Circle NE, Suite 2–500, Washington, DC 

20002–8002, Attention: Public Affairs— 

Proposed Amendments. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer Dukes, Senior Public Affairs 

Specialist, (202) 502–4597. 

SUPPLEMENTARY INFORMATION: The 

United States Sentencing Commission is 

an independent agency in the judicial 

branch of the United States 

Government. The Commission 

promulgates sentencing guidelines and 

policy statements for federal courts 

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

Commission also periodically reviews 

and revises previously promulgated 

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

and submits guideline amendments to 

the Congress not later than the first day 

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

994(p). 

Publication of a proposed amendment 

requires the affirmative vote of at least 

three voting members of the 

Commission and is deemed to be a 

request for public comment on the 

proposed amendment. See USSC Rules 

of Practice and Procedure 2.2, 4.4. In 

contrast, the affirmative vote of at least 

four voting members is required to 

promulgate an amendment and submit 

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

994(p). 

The proposed amendments in this 

notice are presented in one of two 

formats. First, some of the amendments 

are proposed as specific revisions to a 

guideline, policy statement, or 

commentary. Bracketed text within a 

proposed amendment indicates a 

heightened interest on the 

Commission’s part in comment and 

suggestions regarding alternative policy 

choices; for example, a proposed 

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

that the Commission is considering, and 

invites comment on, alternative policy 

choices regarding the appropriate level 

of enhancement. Similarly, bracketed 

text within a specific offense 

characteristic or application note means 

that the Commission specifically invites 

comment on whether the proposed 

provision is appropriate. Second, the 

Commission has highlighted certain 

issues for comment and invites 

suggestions on how the Commission 

should respond to those issues. 

In summary, the proposed 

amendments and issues for comment set 

forth in this notice are as follows: 

(1) A proposed amendment to § 2B1.1 

(Theft, Property Destruction, and Fraud) 

that would create Notes to the loss table 

in § 2B1.1(b)(1) and move some of the 

general rules relating to loss from the 

commentary to the guideline itself as 

part of the Notes, as well as make 

corresponding changes to the 

Commentary of certain guidelines that 

refer to the loss rules in § 2B1.1, and a 

related issue for comment. 

(2) A two-part proposed amendment 

relating to the provisions of § 4A1.2 

(Definitions and Instructions for 

Computing Criminal History) that cover 

criminal history calculations for 

offenses committed prior to age eighteen 

and on § 5H1.1 (Age (Policy Statement)), 

including (A) three options for 

amending § 4A1.2 to change how 

sentences for offenses committed prior 

to age eighteen are considered in the 

calculation of a defendant’s criminal 

history score, and related issues for 

comment; and (B) an amendment to 

§ 5H1.1 to address unique sentencing 

considerations relating to youthful 

individuals, and related issues for 

comment. 

(3) A proposed amendment to the 

Guidelines Manual that includes three 

options to address the use of acquitted 

conduct for purposes of determining a 

sentence, and related issues for 

comment. 

(4) A two-part proposed amendment 

addressing certain circuit conflicts 

involving § 2K2.1 (Unlawful Receipt, 

Possession, or Transportation of 

Firearms or Ammunition; Prohibited 

Transactions Involving Firearms or 

Ammunition) and § 2K2.4 (Use of 

Firearm, Armor-Piercing Ammunition, 

or Explosive During or in Relation to 

Certain Crimes), including (A) two 

options for amending § 2K2.1(b)(4)(B)(i) 

to address a circuit conflict concerning 

whether a serial number must be 

illegible in order to apply the 4-level 

increase for a firearm that ‘‘had an 

altered or obliterated serial number,’’ 

and a related issue for comment; and (B) 

amendments to the Commentary to 

§ 2K2.4 to address a circuit conflict 

concerning whether subsection (c) of 

§ 3D1.2 (Groups of Closely Related 

Counts) permits grouping of a firearms 

count under 18 U.S.C. 922(g) with a 

drug trafficking count, where the 

defendant also has a separate count 

under 18 U.S.C. 924(c) based on the 

drug trafficking count, and a related 

issue for comment. 

(5) A multi-part proposed amendment 

in response to recently enacted 

legislation and miscellaneous guideline 

issues, including (A) amendments to 

Appendix A (Statutory Index) and the 

Commentary to § 2B1.5 (Theft of, 

Damage to, or Destruction of, Cultural 

Heritage Resources or Paleontological 

Resources; Unlawful Sale, Purchase, 

Exchange, Transportation, or Receipt of 

Cultural Heritage Resources or 

Paleontological Resources) in response 

to the Safeguard Tribal Objects of 

Patrimony (‘‘STOP’’) Act of 2021, Public 

Law 117–258 (2022), and a related issue 

for comment; (B) amendments to 

Appendix A and § 2M5.1 (Evasion of 


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Export Controls; Financial Transactions 

with Countries Supporting International 

Terrorism) in response to the Export 

Control Reform Act of 2018, enacted as 

part of the John McCain National 

Defense Authorization Act for Fiscal 

Year 2019, Public Law 115–232 (2018), 

and to concerns raised by the 

Department of Justice and the 

Disruptive Technology Strike Force (an 

interagency collaboration between the 

Department of Justice’s National 

Security Division and the Department of 

Commerce’s Bureau of Industry and 

Security), and related issues for 

comment; (C) an amendment to 

subsection (b)(2)(B) of § 2S1.3 

(Structuring Transactions to Evade 

Reporting Requirements; Failure to 

Report Cash or Monetary Transactions; 

Failure to File Currency and Monetary 

Instrument Report; Knowingly Filing 

False Reports; Bulk Cash Smuggling; 

Establishing or Maintaining Prohibited 

Accounts) to reflect the enhanced 

penalty applicable to offenses under 31 

U.S.C. 5322 and 5336; (D) amendments 

to Appendix A and the Commentary to 

§ 2R1.1 (Bid-Rigging, Price-Fixing or 

Market-Allocation Agreements Among 

Competitors) to replace references to 15 

U.S.C. 3(b) with references to 15 U.S.C. 

3(a); (E) two options for amending 

§ 2D1.1 (Unlawful Manufacturing, 

Importing, Exporting, or Trafficking 

(Including Possession with Intent to 

Commit These Offenses); Attempt or 

Conspiracy) to address a miscellaneous 

issue regarding the application of the 

base offense levels at subsections (a)(1)– 

(a)(4); and (F) two options for amending 

§ 4C1.1 (Adjustment for Certain ZeroPoint Offenders) to address concerns 

raised by the Department of Justice 

relating to the scope of the definition of 

‘‘sex offense’’ in subsection (b)(2). 

(6) A two-part proposed amendment 

to make technical and other nonsubstantive changes to the Guidelines 

Manual, including (A) technical and 

conforming changes relating to § 4C1.1 

(Adjustment for Certain Zero-Point 

Offenders); and (B) technical and 

clerical changes to several guidelines 

and their corresponding commentaries 

to add missing headings to application 

notes; provide stylistic consistency in 

how subdivisions are designated; 

provide consistency in the use of 

capitalization; correct certain references 

and typographical errors; and update an 

example in a Commentary that 

references 18 U.S.C. 924(c), which was 

amended by the First Step Act of 2018, 

Public Law 115–391 (Dec. 21, 2018). 

(7) A two-part proposed amendment 

to the Guidelines Manual, including (A) 

request for public comment on whether 

any changes should be made to the 

Guidelines Manual relating to the threestep process set forth in § 1B1.1 

(Application Instructions) and the use of 

departures and policy statements 

relating to specific personal 

characteristics; and (B) amendments 

that would restructure the Guidelines 

Manual to simplify both (1) the current 

three-step process utilized in 

determining a sentence that is 

‘‘sufficient, but not greater than 

necessary,’’ and (2) existing guidance in 

the Guidelines Manual regarding a 

court’s consideration of the individual 

circumstances of the defendant as well 

as certain offense characteristics. 

In addition, the Commission requests 

public comment regarding whether, 

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

U.S.C. 994(u), any proposed amendment 

published in this notice should be 

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

(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(d) the 

specific guideline amendments that the 

court may apply retroactively under 18 

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

Commentary to § 1B1.10 lists the 

purpose of the amendment, the 

magnitude of the change in the 

guideline range made by the 

amendment, and the difficulty of 

applying the amendment retroactively 

to determine an amended guideline 

range under § 1B1.10(b) as among the 

factors the Commission considers in 

selecting the amendments included in 

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

public comment should address each of 

these factors. 

The text of the proposed amendments 

and related issues for comment are set 

forth below. Additional information 

pertaining to the proposed amendments 

and issues for comment described in 

this notice may be accessed through the 

Commission’s website at www.ussc.gov. 

In addition, as required by 5 U.S.C. 

553(b)(4), plain-language summaries of 

the proposed amendments are available 

at https://www.ussc.gov/guidelines/ 

amendments/proposed-2024- 

amendments-federal-sentencingguidelines. 

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

(x); USSC Rules of Practice and 

Procedure 2.2, 4.3, 4.4. 

Carlton W. Reeves, 

Chair. 

Proposed Amendments to the 

Sentencing Guidelines, Policy 

Statements, and Official Commentary 

1. Rule for Calculating Loss 

Synopsis of Proposed Amendment: 

This proposed amendment is a result of 

the Commission’s continued study of 

the Guidelines Manual to address case 

law concerning the validity and 

enforceability of guideline commentary. 

See U.S. Sent’g Comm’n, ‘‘Notice of 

Final Priorities,’’ 88 FR 60536 (Sept. 1, 

2023). 

In Stinson v. United States, 508 U.S. 

36, 38 (1993), the Supreme Court held 

that commentary ‘‘that interprets or 

explains a guideline is authoritative 

unless it violates the Constitution or a 

federal statute, or is inconsistent with, 

or a plainly erroneous reading of, that 

guideline.’’ In recent years, however, the 

deference afforded to various guideline 

commentary provisions has been 

debated, particularly since Kisor v. 

Wilkie, 139 S. Ct. 2400, 2415 (2019), 

which limited deference to agency 

interpretation of regulations to 

situations in which the regulation is 

‘‘genuinely ambiguous.’’ Applying 

Kisor, the Third Circuit recently held 

that Application Note 3(A) of the 

Commentary to § 2B1.1 (Theft, Property 

Destruction, and Fraud) is not entitled 

to deference. United States v. Banks, 55 

F.4th 246 (3d Cir. 2022). 

Section 2B1.1 includes a loss table 

that increases the offense level based on 

the amount of loss resulting from an 

offense. USSG § 2B1.1(b)(1). Application 

Note 3(A) of the Commentary to § 2B1.1 

provides a general rule for courts to use 

to calculate loss for purposes of the loss 

table. USSG § 2B1.1, comment. (n.3(A)). 

Under the rule, ‘‘loss is the greater of 

actual loss or intended loss.’’ Id. The 

commentary then defines the terms 

‘‘actual loss,’’ ‘‘intended loss,’’ 

‘‘pecuniary harm,’’ and ‘‘reasonably 

foreseeable pecuniary harm.’’ USSG 

§ 2B1.1, comment. (n.3(A)(i)–(iv)). The 

commentary also provides that ‘‘[t]he 

court shall use the gain that resulted 

from the offense as an alternative 

measure of loss only if there is a loss but 

it reasonably cannot be determined.’’ 

USSG § 2B1.1, comment. (n.3(B)). 

In Banks, the Third Circuit held that 

‘‘the term ‘loss’ is unambiguous in the 

context of § 2B1.1’’—meaning ‘‘actual 

loss’’—and that ‘‘[b]ecause the 

commentary expands the definition of 

‘loss’ by explaining that generally ‘loss 


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is the greater of actual loss or intended 

loss,’ we accord the commentary no 

weight.’’ Banks, 55 F.4th at 253, 258. To 

date, the Third Circuit is the only 

appellate court to reach this conclusion. 

However, the loss calculations for 

defendants in this circuit are now 

computed differently than in circuits 

that continue to apply Application Note 

3(A). 

The Commission estimates that 

approximately one-fifth of individuals 

sentenced under § 2B1.1 in fiscal year 

2022 were sentenced using intended 

loss. This estimate is based on the 

Commission’s review of a 30 percent 

representative sample of the 3,811 

individuals sentenced under § 2B1.1 in 

fiscal year 2022 with a known, non-zero 

loss amount. Intended loss was used for 

sentencing in 19.8 percent of cases in 

the sample. Using these findings to 

extrapolate to all § 2B1.1 cases with a 

loss amount, the Commission estimates 

that approximately 750 individuals 

were sentenced using intended loss in 

fiscal year 2022. Of those 750 

individuals, approximately 50 were 

sentenced in the Third Circuit prior to 

the Banks decision. 

This proposed amendment would 

address the decision from the Third 

Circuit regarding the validity and 

enforceability of Application Note 3(A) 

of the Commentary to § 2B1.1 to ensure 

consistent loss calculation across 

circuits. 

The proposed amendment would 

create Notes to the loss table in 

§ 2B1.1(b)(1) and move the general rule 

establishing loss as the greater of actual 

loss or intended loss from the 

commentary to the guideline itself as 

part of the Notes. The proposed 

amendment would also move the rule 

providing for the use of gain as an 

alternative measure of loss, as well as 

the definitions of ‘‘actual loss,’’ 

‘‘intended loss,’’ ‘‘pecuniary harm,’’ and 

‘‘reasonably foreseeable pecuniary 

harm’’ from the commentary to the 

Notes. In addition, the proposed 

amendment would make corresponding 

changes to the Commentary to §§ 2B2.3 

(Trespass), 2C1.1 (Offering, Giving, 

Soliciting, or Receiving a Bribe; 

Extortion Under Color of Official Right; 

Fraud Involving the Deprivation of the 

Intangible Right to Honest Services of 

Public Officials; Conspiracy to Defraud 

by Interference with Governmental 

Functions), and 8A1.2 (Application 

Instructions—Organizations), which 

calculate loss by reference to the 

Commentary to § 2B1.1. 

An issue for comment is also 

provided. 

Proposed Amendment: Section 

2B1.1(b)(1) is amended by inserting the 

following at the end: 

‘‘*Notes to Table: 

(A) Loss.—Loss is the greater of actual 

loss or intended loss. 

(B) Gain.—The court shall use the 

gain that resulted from the offense as an 

alternative measure of loss only if there 

is a loss but it reasonably cannot be 

determined. 

(C) For purposes of this guideline— 

(i) ‘Actual loss’ means the reasonably 

foreseeable pecuniary harm that 

resulted from the offense. 

(ii) ‘Intended loss’ (I) means the 

pecuniary harm that the defendant 

purposely sought to inflict; and (II) 

includes intended pecuniary harm that 

would have been impossible or unlikely 

to occur (e.g., as in a government sting 

operation, or an insurance fraud in 

which the claim exceeded the insured 

value). 

(iii) ‘Pecuniary harm’ means harm 

that is monetary or that otherwise is 

readily measurable in money. 

Accordingly, pecuniary harm does not 

include emotional distress, harm to 

reputation, or other non-economic 

harm. 

(iv) ‘Reasonably foreseeable 

pecuniary harm’ means pecuniary harm 

that the defendant knew or, under the 

circumstances, reasonably should have 

known, was a potential result of the 

offense.’’. 

The Commentary to § 2B1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 3—by striking subparagraphs (A) 

and (B) as follows: 

‘‘(A) General Rule.—Subject to the 

exclusions in subdivision (D), loss is the 

greater of actual loss or intended loss. 

(i) Actual Loss.—‘Actual loss’ means 

the reasonably foreseeable pecuniary 

harm that resulted from the offense. 

(ii) Intended Loss.—‘Intended loss’ (I) 

means the pecuniary harm that the 

defendant purposely sought to inflict; 

and (II) includes intended pecuniary 

harm that would have been impossible 

or unlikely to occur (e.g., as in a 

government sting operation, or an 

insurance fraud in which the claim 

exceeded the insured value). 

(iii) Pecuniary Harm.—‘Pecuniary 

harm’ means harm that is monetary or 

that otherwise is readily measurable in 

money. Accordingly, pecuniary harm 

does not include emotional distress, 

harm to reputation, or other noneconomic harm. 

(iv) Reasonably Foreseeable 

Pecuniary Harm.—For purposes of this 

guideline, ‘reasonably foreseeable 

pecuniary harm’ means pecuniary harm 

that the defendant knew or, under the 

circumstances, reasonably should have 

known, was a potential result of the 

offense. 

(v) Rules of Construction in Certain 

Cases.—In the cases described in 

subdivisions (I) through (III), reasonably 

foreseeable pecuniary harm shall be 

considered to include the pecuniary 

harm specified for those cases as 

follows: 

(I) Product Substitution Cases.—In the 

case of a product substitution offense, 

the reasonably foreseeable pecuniary 

harm includes the reasonably 

foreseeable costs of making substitute 

transactions and handling or disposing 

of the product delivered, or of 

retrofitting the product so that it can be 

used for its intended purpose, and the 

reasonably foreseeable costs of 

rectifying the actual or potential 

disruption to the victim’s business 

operations caused by the product 

substitution. 

(II) Procurement Fraud Cases.—In the 

case of a procurement fraud, such as a 

fraud affecting a defense contract award, 

reasonably foreseeable pecuniary harm 

includes the reasonably foreseeable 

administrative costs to the government 

and other participants of repeating or 

correcting the procurement action 

affected, plus any increased costs to 

procure the product or service involved 

that was reasonably foreseeable. 

(III) Offenses Under 18 U.S.C. 1030.— 

In the case of an offense under 18 U.S.C. 

1030, actual loss includes the following 

pecuniary harm, regardless of whether 

such pecuniary harm was reasonably 

foreseeable: any reasonable cost to any 

victim, including the cost of responding 

to an offense, conducting a damage 

assessment, and restoring the data, 

program, system, or information to its 

condition prior to the offense, and any 

revenue lost, cost incurred, or other 

damages incurred because of 

interruption of service. 

(B) Gain.—The court shall use the 

gain that resulted from the offense as an 

alternative measure of loss only if there 

is a loss but it reasonably cannot be 

determined.’’; 

inserting the following new 

subparagraph (A): 

‘‘(A) Rules of Construction in Certain 

Cases.—In the cases described in 

clauses (i) through (iii), reasonably 

foreseeable pecuniary harm shall be 

considered to include the pecuniary 

harm specified for those cases as 

follows: 

(i) Product Substitution Cases.—In the 

case of a product substitution offense, 

the reasonably foreseeable pecuniary 

harm includes the reasonably 

foreseeable costs of making substitute 

transactions and handling or disposing 

of the product delivered, or of 


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retrofitting the product so that it can be 

used for its intended purpose, and the 

reasonably foreseeable costs of 

rectifying the actual or potential 

disruption to the victim’s business 

operations caused by the product 

substitution. 

(ii) Procurement Fraud Cases.—In the 

case of a procurement fraud, such as a 

fraud affecting a defense contract award, 

reasonably foreseeable pecuniary harm 

includes the reasonably foreseeable 

administrative costs to the government 

and other participants of repeating or 

correcting the procurement action 

affected, plus any increased costs to 

procure the product or service involved 

that was reasonably foreseeable. 

(iii) Offenses Under 18 U.S.C. 1030.— 

In the case of an offense under 18 U.S.C. 

1030, actual loss includes the following 

pecuniary harm, regardless of whether 

such pecuniary harm was reasonably 

foreseeable: any reasonable cost to any 

victim, including the cost of responding 

to an offense, conducting a damage 

assessment, and restoring the data, 

program, system, or information to its 

condition prior to the offense, and any 

revenue lost, cost incurred, or other 

damages incurred because of 

interruption of service.’’; 

and by redesignating subparagraphs (C), 

(D), (E), and (F) as subparagraphs (B), 

(C), (D), and (E), respectively. 

The Commentary to § 2B2.3 captioned 

‘‘Application Notes’’ is amended in 

Note 2 by striking ‘‘the Commentary to 

§ 2B1.1 (Theft, Property Destruction, 

and Fraud)’’ and inserting ‘‘§ 2B1.1 

(Theft, Property Destruction, and Fraud) 

and the Commentary to § 2B1.1’’. 

The Commentary to § 2C1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 3 by striking ‘‘Application Note 3 

of the Commentary to § 2B1.1 (Theft, 

Property Destruction, and Fraud)’’ and 

inserting ‘‘§ 2B1.1 (Theft, Property 

Destruction, and Fraud) and 

Application Note 3 of the Commentary 

to § 2B1.1’’. 

The Commentary to § 8A1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 3 by striking ‘‘the Commentary to 

§ 2B1.1 (Theft, Property Destruction, 

and Fraud)’’ and inserting ‘‘§ 2B1.1 

(Theft, Property Destruction, and Fraud) 

and the Commentary to § 2B1.1’’. 

Issue for Comment: 

1. As part of the Commission’s 

priority to address case law concerning 

the validity and enforceability of 

guideline commentary, the proposed 

amendment would address the Third 

Circuit’s decision regarding the 

deference to be given to Application 

Note 3(A) of the Commentary to § 2B1.1 

(Theft, Property Destruction, and 

Fraud). See United States v. Banks, 55 

F.4th 246 (3d Cir. 2022). The 

Commission’s current priorities also 

include the ‘‘[e]xamination of the 

Guidelines Manual, including 

exploration of ways to simplify the 

guidelines and possible consideration of 

amendments that might be appropriate.’’ 

See U.S. Sent’g Comm’n, ‘‘Notice of 

Final Priorities,’’ 88 FR 60536 (Sept. 1, 

2023). As part of that simplification 

priority, the Commission is considering 

conducting a comprehensive 

examination of § 2B1.1 during an 

upcoming amendment cycle. 

The Commission seeks comment on 

whether it should adopt this proposed 

amendment addressing Application 

Note 3(A) of the Commentary to § 2B1.1 

during this amendment cycle, or 

whether it should defer making changes 

to § 2B1.1 and its commentary until a 

future amendment cycle that may 

include a comprehensive examination 

of § 2B1.1. 

2. Youthful Individuals 

Synopsis of Proposed Amendment: In 

September 2023, the Commission 

identified as one of its policy priorities 

for the amendment cycle ending May 1, 

2024, an examination of the treatment of 

youthful offenders and offenses 

involving youths under the Guidelines 

Manual, including possible 

consideration of amendments that might 

be appropriate. U.S. Sent’g Comm’n, 

‘‘Notice of Final Priorities,’’ 88 FR 

60536 (Sept. 1, 2023). As part of this 

priority, the Commission is examining 

two provisions related to youthful 

individuals: (1) subsection (d) of § 4A1.2 

(Definitions and Instructions for 

Computing Criminal History), which 

covers criminal history calculations for 

offenses committed prior to age 

eighteen; and (2) § 5H1.1 (Age (Policy 

Statement)), a departure provision 

related to age, including youth. Section 

4A1.2(d) is unchanged from the original 

guideline enacted in 1987. Section 

5H1.1 was last amended in 2010. 

This proposed amendment contains 

two parts (Part A and Part B). The 

Commission is considering whether to 

promulgate either or both parts, as they 

are not mutually exclusive. Part A 

addresses the computation of criminal 

history points for offenses committed 

prior to age eighteen. Part B addresses 

the sentencing of youthful individuals. 

Computing Criminal History for 

Offenses Committed Prior to Age 

Eighteen 

Under Chapter Four, Part A (Criminal 

History), certain sentences for offenses 

committed prior to age eighteen are 

considered in the calculation of a 

defendant’s criminal history score. The 

guidelines distinguish between an 

‘‘adult sentence’’ in which the 

defendant committed the offense before 

age eighteen and was convicted as an 

adult, and a ‘‘juvenile sentence’’ 

resulting from a juvenile adjudication. 

See USSG § 4A1.2(d). 

The Commentary to § 4A1.2 

(Definitions and Instructions for 

Computing Criminal History) provides 

that, to avoid disparities from 

jurisdiction to jurisdiction in the age at 

which a defendant is considered a 

‘‘juvenile,’’ the rules set forth in 

§ 4A1.2(d) apply to all offenses 

committed prior to age eighteen. See 

USSG § 4A1.2, comment. (n.7). The 

Commentary also states that 

‘‘[a]ttempting to count every juvenile 

adjudication would have the potential 

for creating large disparities due to the 

differential availability of records,’’ and 

thus only certain offenses committed 

prior to age eighteen are counted. Id. 

Courts assign three criminal history 

points if a defendant was convicted as 

an adult for an offense committed before 

age eighteen and received a sentence of 

imprisonment exceeding one year and 

one month, if the sentence was 

imposed, or the defendant was 

incarcerated, within fifteen years of the 

commencement of the instant offense. 

See USSG § 4A1.2(d)(1), (e). Courts 

assign two criminal history points for 

‘‘each adult or juvenile sentence to 

confinement of at least sixty days if the 

defendant was released from such 

confinement within five years of his 

commencement of the instant offense.’’ 

USSG § 4A1.2(d)(2)(A). One criminal 

history point is added for ‘‘each adult or 

juvenile sentence imposed within five 

years of the defendant’s commencement 

of the instant offense not covered in 

(A).’’ USSG § 4A1.2(d)(2)(B). 

Juvenile offenses are also addressed in 

two other places in § 4A1.2. First, 

§ 4A1.2(c)(2) provides a list of certain 

offenses that are ‘‘never counted’’ for 

purposes of the criminal history score, 

including ‘‘juvenile status offenses and 

truancy.’’ Second, § 4A1.2(f) provides 

that diversionary dispositions resulting 

from a finding or admission of guilt, or 

a plea of nolo contendere, are counted 

even if a conviction is not formally 

entered, but ‘‘diversion from juvenile 

court is not counted.’’ 

With this proposed amendment, the 

Commission seeks to strike the right 

balance between various considerations 

related to the sentencing of youthful 

individuals, including difficulties in 

obtaining supporting documentation for 

juvenile adjudications and in assessing 

‘‘confinement,’’ recent brain 

development research, demographic 


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disparities, higher rearrest rates for 

younger individuals, and protection of 

the public. 

Juvenile Proceedings in General 

Juvenile adjudications involve some 

procedural safeguards akin to adult 

criminal proceedings (e.g., right to 

counsel, privilege against selfincrimination), but not all criminal 

constitutional protections apply. For 

example, in most states, juveniles are 

not entitled to a jury trial, although 

some states provide juveniles with a 

jury trial upon request. Additionally, 

‘‘[i]n 2019, there were 24 states with 

statutes allowing delinquency 

adjudication hearings to be generally 

open to the public,’’ while ‘‘[i]n the 

remaining states and the District of 

Columbia the public is restricted from 

attending delinquency adjudication 

hearings,’’ with possible limited 

exceptions. Charles Puzzanchera et al., 

Nat’l Ctr. for Juv. Just., Youth and the 

Juvenile Justice System: 2022 National 

Report 93 (2022). Dispositions of 

confinement and residential placement 

may also differ in manner and purpose 

from adult sentences of incarceration. 

Residential placement facilities vary in 

their degree of security and security 

features, with some having a ‘‘secure 

prison-like environment’’ and others ‘‘a 

more open (even home-like) setting.’’ Id. 

at 91. Almost all states and the District 

of Columbia have statutes or case law 

providing that a juvenile adjudication 

shall not be deemed a criminal 

conviction or impose any civil 

disabilities that ordinarily result from 

an adult conviction, though many states 

permit the use of juvenile adjudications 

to enhance a subsequent sentence. 

With respect to records of juvenile 

proceedings, practices vary by state. 

Many states allow for sealing or 

expungement, though few states seal or 

expunge such records automatically, 

instead requiring a motion. See, e.g., 

Riya Saha Shah, et al., Juv. L. Ctr., A 

National Review of State Laws on 

Confidentiality, Sealing and 

Expungement 36–39 (2014). States often 

include various eligibility requirements 

for sealing or expungement, such as that 

(1) a certain period of time has elapsed 

since the case concluded or the juvenile 

completed any sentence of supervision, 

(2) the person has not been convicted of 

certain types of offenses, such as drug 

or sex offenses or offenses against 

persons, and/or (3) the individual has 

reached a certain age. Id. at 32–35. 

The determination of whether a 

person under the age of eighteen may be 

tried as an adult varies by jurisdiction 

and often may be based on certain 

offense types or a finding that the 

individual would not benefit from the 

juvenile court. In 2019, 47 states 

allowed juvenile court judges to make 

the transfer decision, 27 states had 

statutory provisions that mandated 

transfer to criminal court for certain 

cases, and 14 states gave prosecutors 

discretion on where to file charges. 

Puzzanchera et al., supra, at 95–97. 

States vary with respect to the minimum 

age at which an individual can be 

transferred to criminal court to be tried 

as an adult; where specified, the 

minimum age ranges from ten to 

sixteen. Id. at 97–99. For juveniles who 

had been tried as adults, 35 states had 

‘‘once an adult, always an adult’’ 

provisions requiring that they be 

prosecuted in criminal court for any 

subsequent offense. Id. at 95–96. 

Sentencing of Youthful Individuals 

Chapter Five, Part H (Specific 

Offender Characteristics) sets forth 

policy statements addressing the 

relevance of certain specific offender 

characteristics in sentencing. 

Specifically, § 5H1.1 (Age (Policy 

Statement)) provides, in relevant part, 

that ‘‘[a]ge (including youth) may be 

relevant in determining whether a 

departure is warranted, if considerations 

based on age, individually or in 

combination with other offender 

characteristics, are present to an 

unusual degree and distinguish the case 

from the typical cases covered by the 

guidelines.’’ 

Studies on Age and Brain Development 

Research has shown that brain 

development continues until the mid20s on average, potentially contributing 

to impulsive actions and reward-seeking 

behavior, although a more precise age 

would have to be determined on an 

individualized basis. See, e.g., U.S. 

Sent’g Comm’n, Youthful Offenders in 

the Federal System 6–7 (2017); Daniel 

Romer et al., Beyond Stereotypes of 

Adolescent Risk Taking: Placing the 

Adolescent Brain in Developmental 

Context, 27 Developmental Cognitive 

Neuroscience 19 (2017); Laurence 

Steinberg & Grace Icenogle, Using 

Developmental Science to Distinguish 

Adolescents and Adults Under the Law, 

1 Ann. Rev. Developmental Psych. 21 

(2019). 

Studies on Age and Rearrest Rates 

Research has shown a correlation 

between age and rearrest rates, with 

younger individuals being rearrested at 

higher rates, and sooner after release, 

than older individuals. See Ryan Cotter, 

Courtney Semisch & David Rutter, U.S. 

Sent’g Comm’n, Recidivism of Federal 

Offenders Released in 2010 (2021); see 

also Kim Steven Hunt & Billy Easley II, 

U.S. Sent’g Comm’n, The Effects of 

Aging on Recidivism Among Federal 

Offenders (2017). 

Part A of the Proposed Amendment 

Part A of the proposed amendment 

sets forth three options to change how 

sentences for offenses committed prior 

to age eighteen are considered in the 

calculation of a defendant’s criminal 

history score. 

Option 1 would amend 

§ 4A1.2(d)(2)(A) to exclude juvenile 

sentences from receiving two criminal 

history points, limiting this provision to 

adult sentences of imprisonment of at 

least 60 days. As a result, juvenile 

sentences, including those that involved 

confinement, would receive at most one 

criminal history point under 

§ 4A1.2(d)(2)(B). In addition, Option 1 

would amend § 4A1.2(k)(2)(B) to 

explain how the applicable time period 

for revocations would work in light of 

the proposed changes. Finally, Option 1 

would make conforming changes to the 

Commentary to §§ 4A1.2 and 4A1.1. 

Option 2 would amend § 4A1.2(d) to 

exclude all juvenile sentences from 

being considered in the calculation of 

the criminal history score. It also 

includes bracketed language providing 

that such sentences may be considered 

for purposes of an upward departure 

under § 4A1.3 (Departures Based on 

Inadequacy of Criminal History 

Category (Policy Statement)). In 

addition, Option 2 would amend 

§ 4A1.2(k)(2)(B) to explain how the 

applicable time period for revocations 

would work in light of the proposed 

changes. It also would amend 

§ 4A1.2(c)(2) to delete the reference to 

‘‘juvenile status offenses and truancy’’ 

and amend § 4A1.2(f) to delete the 

reference to ‘‘diversion from juvenile 

court.’’ Finally, Option 2 would make 

conforming changes to the Commentary 

to §§ 4A1.2 and 4A1.1. 

Option 3 would amend § 4A1.2(d) to 

exclude all sentences resulting from 

offenses committed prior to age eighteen 

from being considered in the calculation 

of the criminal history score. It also 

includes bracketed language providing 

that such sentences may be considered 

for purposes of an upward departure 

under § 4A1.3. In addition, Option 3 

would amend § 4A1.2(e) and (k) to 

delete all references to sentences 

resulting from offenses committed prior 

to age eighteen. It also would amend 

§ 4A1.2(c)(2) to delete the reference to 

‘‘juvenile status offenses and truancy’’ 

and amend § 4A1.2(f) to delete the 

reference to ‘‘diversion from juvenile 

court.’’ Additionally, Option 3 would 


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make conforming changes to the 

Commentary to §§ 4A1.2 and 4A1.1. 

Finally, Option 3 would make 

changes to the Commentary to §§ 2K1.3 

(Unlawful Receipt, Possession, or 

Transportation of Explosive Materials; 

Prohibited Transactions Involving 

Explosive Materials), 2K2.1 (Unlawful 

Receipt, Possession, or Transportation 

of Firearms or Ammunition; Prohibited 

Transactions Involving Firearms or 

Ammunition), and 2L1.2 (Unlawfully 

Entering or Remaining in the United 

States), and to subsection (e)(4) of 

§ 4B1.2 (Definitions of Terms Used in 

Section 4B1.1), to delete references to 

convictions for offenses committed prior 

to age eighteen being used to increase 

offense levels. 

Issues for comment are provided. 

Part B of the Proposed Amendment 

Part B of the proposed amendment 

would amend the first sentence in 

§ 5H1.1 to delete ‘‘(including youth)’’ 

and ‘‘if considerations based on age, 

individually or in combination with 

other offender characteristics, are 

present to an unusual degree and 

distinguish the case from the typical 

cases covered by the guidelines.’’ Thus, 

the first sentence in § 5H1.1 would 

provide solely that ‘‘[a]ge may be 

relevant in determining whether a 

departure is warranted.’’ It would also 

add language specifically providing for 

a downward departure for cases in 

which the defendant was youthful at the 

time of the offense and set forth 

considerations for the court in 

determining whether a departure based 

on youth is warranted. 

Issues for comment are provided. 

(A) Computing Criminal History for 

Offenses Committed Prior to Age 

Eighteen 

Proposed Amendment: 

[Option 1 (Deleting the references to 

juvenile sentences that require a 

determination of ‘‘confinement’’): 

Section 4A1.2(d)(2)(A) is amended by 

striking: ‘‘add 2 points under § 4A1.1(b) 

for each adult or juvenile sentence to 

confinement of at least sixty days if the 

defendant was released from such 

confinement within five years of his 

commencement of the instant offense’’ 

and inserting ‘‘add 2 points under 

§ 4A1.1(b) for each adult sentence of 

imprisonment of at least sixty days that 

resulted in the defendant being 

incarcerated within five years of his 

commencement of the instant offense’’. 

Section 4A1.2(k)(2)(B) is amended by 

striking ‘‘in the case of any other 

confinement sentence for an offense 

committed prior to the defendant’s 

eighteenth birthday, the date of the 

defendant’s last release from 

confinement on such sentence (see 

§ 4A1.2(d)(2)(A))’’ and inserting ‘‘in the 

case of an adult term of imprisonment 

of at least sixty days for an offense 

committed prior to the defendant’s 

eighteenth birthday, the date of the 

defendant’s last release from 

incarceration on such sentence (see 

§ 4A1.2(d)(2)(A))’’. 

The Commentary to § 4A1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 7 by striking ‘‘Therefore, for 

offenses committed prior to age 

eighteen, only those that resulted in 

adult sentences of imprisonment 

exceeding one year and one month, or 

resulted in imposition of an adult or 

juvenile sentence or release from 

confinement on that sentence within 

five years of the defendant’s 

commencement of the instant offense 

are counted’’ and inserting ‘‘Therefore, 

for offenses committed prior to age 

eighteen, only certain adult or juvenile 

sentences are counted’’. 

The Commentary to § 4A1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 2 by striking ‘‘An adult or juvenile 

sentence imposed for an offense 

committed prior to the defendant’s 

eighteenth birthday is counted only if 

confinement resulting from such 

sentence extended into the five-year 

period preceding the defendant’s 

commencement of the instant offense’’ 

and inserting ‘‘An adult sentence 

imposed for an offense committed prior 

to the defendant’s eighteenth birthday is 

counted only if the defendant’s 

incarceration resulting from such 

sentence extended into the five-year 

period preceding the defendant’s 

commencement of the instant offense’’.] 

[Option 2 (Deleting all references to 

juvenile sentences as part of the 

criminal history calculation rules): 

Section 4A1.2(c)(2) is amended by 

striking ‘‘Juvenile status offenses and 

truancy’’. 

Section 4A1.2(d) is amended— 

in paragraph (2)(A) by striking: ‘‘add 

2 points under § 4A1.1(b) for each adult 

or juvenile sentence to confinement of 

at least sixty days if the defendant was 

released from such confinement within 

five years of his commencement of the 

instant offense’’ and inserting ‘‘add 2 

points under § 4A1.1(b) for each adult 

sentence of imprisonment of at least 

sixty days that resulted in the defendant 

being incarcerated within five years of 

his commencement of the instant 

offense’’; 

in paragraph (2)(B) by striking ‘‘adult 

or juvenile sentence’’ and inserting 

‘‘adult sentence’’; 

and by inserting at the end the 

following new paragraph (3): 

‘‘(3) Sentences resulting from juvenile 

adjudications are not counted[, but may 

be considered under § 4A1.3 

(Departures Based on Inadequacy of 

Criminal History Category (Policy 

Statement))].’’. 

Section 4A1.2(f) is amended by 

striking ‘‘, except that diversion from 

juvenile court is not counted’’. 

Section 4A1.2(k)(2)(B) is amended by 

striking ‘‘in the case of any other 

confinement sentence for an offense 

committed prior to the defendant’s 

eighteenth birthday, the date of the 

defendant’s last release from 

confinement on such sentence (see 

§ 4A1.2(d)(2)(A))’’ and inserting ‘‘in the 

case of an adult term of imprisonment 

of at least sixty days for an offense 

committed prior to the defendant’s 

eighteenth birthday, the date of the 

defendant’s last release from 

incarceration on such sentence (see 

§ 4A1.2(d)(2)(A))’’. 

The Commentary to § 4A1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 7 by striking the following: 

‘‘Offenses Committed Prior to Age 

Eighteen.—Section 4A1.2(d) covers 

offenses committed prior to age 

eighteen. Attempting to count every 

juvenile adjudication would have the 

potential for creating large disparities 

due to the differential availability of 

records. Therefore, for offenses 

committed prior to age eighteen, only 

those that resulted in adult sentences of 

imprisonment exceeding one year and 

one month, or resulted in imposition of 

an adult or juvenile sentence or release 

from confinement on that sentence 

within five years of the defendant’s 

commencement of the instant offense 

are counted. To avoid disparities from 

jurisdiction to jurisdiction in the age at 

which a defendant is considered a 

‘juvenile,’ this provision applies to all 

offenses committed prior to age 

eighteen.’’; 

and inserting the following: 

‘‘Offenses Committed Prior to Age 

Eighteen.—Section 4A1.2(d) covers 

offenses committed prior to age 

eighteen. Offenses prior to age eighteen 

are counted only if the defendant was 

convicted and sentenced as an adult. If 

the defendant was convicted as an adult 

for an offense committed before age 

eighteen and received a sentence 

exceeding one year and one month, 

§ 4A1.2(e) provides the applicable time 

period for counting the sentence. All 

other adult sentences for offenses 

committed prior to age eighteen are 

counted in accordance with 

§ 4A1.2(d)(2).’’. 

The Commentary to § 4A1.1 captioned 

‘‘Application Notes’’ is amended— 


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in Note 2 by striking ‘‘An adult or 

juvenile sentence imposed for an 

offense committed prior to the 

defendant’s eighteenth birthday is 

counted only if confinement resulting 

from such sentence extended into the 

five-year period preceding the 

defendant’s commencement of the 

instant offense’’ and inserting ‘‘An adult 

sentence imposed for an offense 

committed prior to the defendant’s 

eighteenth birthday is counted only if 

the defendant’s incarceration resulting 

from such sentence extended into the 

five-year period preceding the 

defendant’s commencement of the 

instant offense’’; 

and in Note 3 by striking ‘‘An adult 

or juvenile sentence’’ and inserting ‘‘An 

adult sentence’’.] 

[Option 3 (Deleting all criminal 

history rules requiring counting of 

offenses committed prior to age 

eighteen): 

Section 4A1.2(c)(2) is amended by 

striking ‘‘Juvenile status offenses and 

truancy’’. 

Section 4A1.2(d) is amended by 

striking the following: 

‘‘(1) If the defendant was convicted as 

an adult and received a sentence of 

imprisonment exceeding one year and 

one month, add 3 points under 

§ 4A1.1(a) for each such sentence. 

(2) In any other case, 

(A) add 2 points under § 4A1.1(b) for 

each adult or juvenile sentence to 

confinement of at least sixty days if the 

defendant was released from such 

confinement within five years of his 

commencement of the instant offense; 

(B) add 1 point under § 4A1.1(c) for 

each adult or juvenile sentence imposed 

within five years of the defendant’s 

commencement of the instant offense 

not covered in (A).’’; 

and inserting the following: 

‘‘Sentences resulting from offenses 

committed prior to age eighteen are not 

counted[, but may be considered under 

§ 4A1.3 (Departures Based on 

Inadequacy of Criminal History 

Category (Policy Statement))].’’. 

Section 4A1.2(e) is amended by 

striking paragraph (4) as follows: 

‘‘(4) The applicable time period for 

certain sentences resulting from offenses 

committed prior to age eighteen is 

governed by § 4A1.2(d)(2).’’. 

Section 4A1.2(f) is amended by 

striking ‘‘, except that diversion from 

juvenile court is not counted’’. 

Section 4A1.2(k)(2) is amended by 

striking the following: 

‘‘Revocation of probation, parole, 

supervised release, special parole, or 

mandatory release may affect the time 

period under which certain sentences 

are counted as provided in § 4A1.2(d)(2) 

and (e). For the purposes of determining 

the applicable time period, use the 

following: (A) in the case of an adult 

term of imprisonment totaling more 

than one year and one month, the date 

of last release from incarceration on 

such sentence (see § 4A1.2(e)(1)); (B) in 

the case of any other confinement 

sentence for an offense committed prior 

to the defendant’s eighteenth birthday, 

the date of the defendant’s last release 

from confinement on such sentence (see 

§ 4A1.2(d)(2)(A)); and (C) in any other 

case, the date of the original sentence 

(see § 4A1.2(d)(2)(B) and (e)(2)).’’; 

and inserting the following: 

‘‘Revocation of probation, parole, 

supervised release, special parole, or 

mandatory release may affect the time 

period under which certain sentences 

are counted as provided in § 4A1.2(e). 

For the purposes of determining the 

applicable time period, use the 

following: (A) in the case of an adult 

term of imprisonment totaling more 

than one year and one month, the date 

of last release from incarceration on 

such sentence (see § 4A1.2(e)(1)); and 

(B) in any other case, the date of the 

original sentence (see § 4A1.2(e)).’’. 

The Commentary to § 4A1.2 captioned 

‘‘Application Notes’’ is amended— 

in Note 7 by striking the following: 

‘‘Offenses Committed Prior to Age 

Eighteen.—Section 4A1.2(d) covers 

offenses committed prior to age 

eighteen. Attempting to count every 

juvenile adjudication would have the 

potential for creating large disparities 

due to the differential availability of 

records. Therefore, for offenses 

committed prior to age eighteen, only 

those that resulted in adult sentences of 

imprisonment exceeding one year and 

one month, or resulted in imposition of 

an adult or juvenile sentence or release 

from confinement on that sentence 

within five years of the defendant’s 

commencement of the instant offense 

are counted. To avoid disparities from 

jurisdiction to jurisdiction in the age at 

which a defendant is considered a 

‘juvenile,’ this provision applies to all 

offenses committed prior to age 

eighteen.’’; 

and inserting the following: 

‘‘Offenses Committed Prior to Age 

Eighteen.—Sentences resulting from 

offenses committed prior to age eighteen 

are not counted. [Nonetheless, the 

criminal conduct underlying any 

conviction resulting from offenses 

committed prior to age eighteen may be 

considered pursuant to § 4A1.3 

(Departures Based on Inadequacy of 

Criminal History Category (Policy 

Statement)).]’’; 

and in Note 8 by striking ‘‘Section 

4A1.2(d)(2) and (e) establishes the time 

period within which prior sentences are 

counted. As used in § 4A1.2(d)(2) and 

(e), the term ‘commencement of the 

instant offense’ includes any relevant 

conduct’’ and inserting ‘‘Section 

4A1.2(e) establishes the time period 

within which prior sentences are 

counted. As used in § 4A1.2(e), the term 

‘commencement of the instant offense’ 

includes any relevant conduct’’. 

The Commentary to § 4A1.1 captioned 

‘‘Application Notes’’ is amended— 

in note 1 by striking ‘‘A sentence 

imposed for an offense committed prior 

to the defendant’s eighteenth birthday is 

counted under this subsection only if it 

resulted from an adult conviction’’ and 

inserting ‘‘A sentence imposed for an 

offense committed prior to the 

defendant’s eighteenth birthday is not 

counted’’; 

in Note 2 by striking ‘‘An adult or 

juvenile sentence imposed for an 

offense committed prior to the 

defendant’s eighteenth birthday is 

counted only if confinement resulting 

from such sentence extended into the 

five-year period preceding the 

defendant’s commencement of the 

instant offense’’ and inserting ‘‘A 

sentence imposed for an offense 

committed prior to the defendant’s 

eighteenth birthday is not counted’’; 

and in Note 3 by striking ‘‘An adult 

or juvenile sentence imposed for an 

offense committed prior to the 

defendant’s eighteenth birthday is 

counted only if imposed within five 

years of the defendant’s commencement 

of the current offense’’ and inserting ‘‘A 

sentence imposed for an offense 

committed prior to the defendant’s 

eighteenth birthday is not counted’’. 

The Commentary to § 2K1.3 captioned 

‘‘Application Notes’’ is amended in 

Note 2, in the paragraph that begins ’’ 

‘Felony conviction’ means’’, by striking 

‘‘A conviction for an offense committed 

prior to age eighteen years is an adult 

conviction if it is classified as an adult 

conviction under the laws of the 

jurisdiction in which the defendant was 

convicted (e.g., a federal conviction for 

an offense committed prior to the 

defendant’s eighteenth birthday is an 

adult conviction if the defendant was 

expressly proceeded against as an 

adult).’’. 

The Commentary to § 2K2.1 captioned 

‘‘Application Notes’’ is amended in 

Note 1, in the paragraph that begins ’’ 

‘Felony conviction’ means’’, by striking 

‘‘A conviction for an offense committed 

prior to age eighteen years is an adult 

conviction if it is classified as an adult 

conviction under the laws of the 

jurisdiction in which the defendant was 

convicted (e.g., a federal conviction for 

an offense committed prior to the 


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defendant’s eighteenth birthday is an 

adult conviction if the defendant was 

expressly proceeded against as an 

adult).’’. 

The Commentary to § 2L1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by striking the following: 

‘‘In General.— 

(A) ‘Ordered Deported or Ordered 

Removed from the United States for the 

First Time’.—For purposes of this 

guideline, a defendant shall be 

considered ‘ordered deported or ordered 

removed from the United States’ if the 

defendant was ordered deported or 

ordered removed from the United States 

based on a final order of exclusion, 

deportation, or removal, regardless of 

whether the order was in response to a 

conviction. ‘For the first time’ refers to 

the first time the defendant was ever the 

subject of such an order. 

(B) Offenses Committed Prior to Age 

Eighteen.—Subsections (b)(1), (b)(2), 

and (b)(3) do not apply to a conviction 

for an offense committed before the 

defendant was eighteen years of age 

unless such conviction is classified as 

an adult conviction under the laws of 

the jurisdiction in which the defendant 

was convicted.’’; 

and inserting the following: 

‘‘ ‘Ordered Deported or Ordered 

Removed from the United States for the 

First Time’.—For purposes of this 

guideline, a defendant shall be 

considered ‘ordered deported or ordered 

removed from the United States’ if the 

defendant was ordered deported or 

ordered removed from the United States 

based on a final order of exclusion, 

deportation, or removal, regardless of 

whether the order was in response to a 

conviction. ‘For the first time’ refers to 

the first time the defendant was ever the 

subject of such an order.’’. 

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

striking ‘‘A conviction for an offense 

committed prior to age eighteen is an 

adult conviction if it is classified as an 

adult conviction under the laws of the 

jurisdiction in which the defendant was 

convicted (e.g., a federal conviction for 

an offense committed prior to the 

defendant’s eighteenth birthday is an 

adult conviction if the defendant was 

expressly proceeded against as an 

adult).’’.] 

Issues for Comment: 

1. The Commission seeks general 

comment on juvenile court systems and 

sentencing of youthful individuals. In 

particular, the Commission requests 

input on: (a) how different jurisdictions 

sentence younger individuals (e.g., 

youthful rehabilitation statutes); (b) how 

judges make decisions regarding 

residential placement or confinement 

upon an adjudication of guilt; (c) the 

factors that influence transfer to adult 

court for offenses committed prior to age 

eighteen; (d) racial disparities; and (e) 

practices related to expungement and 

sealing of records in different 

jurisdictions. For example, are there 

particular research studies, experts, or 

practitioners that the Commission 

should consult? 

2. The Commission seeks comment on 

whether it should make any of the 

changes set forth in Part A of the 

proposed amendment with respect to 

juvenile sentences and sentences for 

offenses committed prior to age eighteen 

for purposes of Chapter Four, Part A 

(Criminal History). Should the 

Commission limit any of the options 

based on: (a) the type of crime involved 

in the offense committed prior to age 

eighteen; (b) the age of the individual at 

the time of the offense committed prior 

to age eighteen; or (c) any other factor? 

Should the Commission consider an 

alternative approach in accounting for 

offenses committed prior to age 

eighteen, such as a downward 

departure? 

3. If the Commission were to 

promulgate Option 2 (exclude juvenile 

sentences) or Option 3 (exclude all 

sentences for offenses committed prior 

to age eighteen) in Part A of the 

proposed amendment, should the 

Commission provide that any such 

sentence may be considered for 

purposes of an upward departure under 

§ 4A1.3 (Departures Based on 

Inadequacy of Criminal History 

Category (Policy Statement)) as 

provided in the bracketed language? If 

so, should the Commission limit the 

consideration of such departures to 

certain offenses? 

4. Option 3 would amend subsection 

(d) of § 4A1.2 (Definitions and 

Instructions for Computing Criminal 

History) to exclude all sentences 

resulting from offenses committed prior 

to age eighteen from being considered in 

the calculation of the criminal history 

score. This change would impact the 

use of predicate offenses in multiple 

guidelines, including §§ 2K1.3 

(Unlawful Receipt, Possession, or 

Transportation of Explosive Materials; 

Prohibited Transactions Involving 

Explosive Materials), 2K2.1 (Unlawful 

Receipt, Possession, or Transportation 

of Firearms or Ammunition; Prohibited 

Transactions Involving Firearms or 

Ammunition), 2L1.2 (Unlawfully 

Entering or Remaining in the United 

States), and 4B1.2 (Definitions of Terms 

Used in Section 4B1.1). Some of these 

guideline provisions were promulgated 

in response to directives, such as 28 

U.S.C. 994(h). The Commission invites 

comment on whether Option 3 exceeds 

the Commission’s authority under 28 

U.S.C. 994(h) or any other congressional 

directives. 

5. If the Commission were to 

promulgate any of the options in Part A 

of the proposed amendment and amend 

subsection (d) of § 4A1.2 (Definitions 

and Instructions for Computing 

Criminal History), should the 

Commission make any changes to 

§ 3B1.4 (Using a Minor to Commit a 

Crime)? If so, what changes should the 

Commission make? For example, should 

the Commission expand the scope of 

application or increase the magnitude of 

the adjustment? If so, how? 

(B) Sentencing of Youthful Individuals 

Proposed Amendment: 

Section 5H1.1 is amended by striking 

the following: 

‘‘Age (including youth) may be 

relevant in determining whether a 

departure is warranted, if considerations 

based on age, individually or in 

combination with other offender 

characteristics, are present to an 

unusual degree and distinguish the case 

from the typical cases covered by the 

guidelines. Age may be a reason to 

depart downward in a case in which the 

defendant is elderly and infirm and 

where a form of punishment such as 

home confinement might be equally 

efficient as and less costly than 

incarceration. Physical condition, which 

may be related to age, is addressed at 

§ 5H1.4 (Physical Condition, Including 

Drug or Alcohol Dependence or Abuse; 

Gambling Addiction).’’; 

and inserting the following: 

‘‘Age may be relevant in determining 

whether a departure is warranted. Age 

may be a reason to depart downward in 

a case in which the defendant is elderly 

and infirm and where a form of 

punishment such as home confinement 

might be equally efficient as and less 

costly than incarceration. A downward 

departure also may be warranted due to 

the defendant’s youthfulness at the time 

of the offense. In an appropriate case, 

the court may consider whether a form 

of punishment other than imprisonment 

might be sufficient to meet the purposes 

of sentencing. In determining whether a 

departure based on youth is warranted, 

and the extent of such departure, the 

court should consider the following: 

(1) Scientific studies on brain 

development showing that psychosocial 

maturity, which involves impulse 

control, risk assessment, decisionmaking, and resistance to peer pressure, 

is generally not developed until the 

mid-20s. 

(2) Research showing a correlation 

between age and rearrest rates, with 

younger individuals rearrested at higher 


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rates and sooner after release than older 

individuals. 

Physical condition, which may be 

related to age, is addressed at § 5H1.4 

(Physical Condition, Including Drug or 

Alcohol Dependence or Abuse; 

Gambling Addiction).’’. 

Issues for Comment: 

1. The Commission seeks general 

comment on sentencing of younger 

individuals, including how to balance 

brain development research suggesting 

potentially lower culpability with 

research on higher rearrest rates and 

potential dangerousness. The 

Commission further seeks comment on 

any relevant developments in legal or 

scientific literature relating to the 

impact of brain development and age on 

youthful criminal behavior. For 

example, are there particular research 

studies, experts, or practitioners that the 

Commission should consult? 

2. The Commission seeks comment on 

whether it should amend § 5H1.1 (Age 

(Policy Statement)) as set forth in Part 

B of the proposed amendment or 

otherwise change the provision in any 

other way with respect to youthful 

individuals. Should the Commission 

include additional or different factors 

for courts to consider in determining 

whether a downward departure based 

on youth may be warranted? 

3. Acquitted Conduct 

Synopsis of Proposed Amendment: 

This proposed amendment is a result of 

the Commission’s consideration of 

possible amendments to the Guidelines 

Manual to prohibit the use of acquitted 

conduct in applying the guidelines. See 

U.S. Sent’g Comm’n, ‘‘Notice of Final 

Priorities,’’ 88 FR 60536 (Sept. 1, 2023). 

Acquitted conduct is not expressly 

addressed in the Guidelines Manual, 

except for a reference in the 

parenthetical summary of the holding in 

United States v. Watts, 519 U.S. 148 

(1997). See USSG § 6A1.3, comment. 

However, consistent with the Supreme 

Court’s holding in Watts, consideration 

of acquitted conduct is permitted under 

the guidelines through the operation of 

§ 1B1.3 (Relevant Conduct (Factors that 

Determine the Guideline Range)), in 

conjunction with § 1B1.4 (Information 

to be Used in Imposing Sentence) and 

§ 6A1.3 (Resolution of Disputed Factors 

(Policy Statement)). 

Section 1B1.3 sets forth the principles 

and limits of sentencing accountability 

for purposes of determining a 

defendant’s guideline range, a concept 

referred to as ‘‘relevant conduct.’’ 

Relevant conduct impacts nearly every 

aspect of guidelines application, 

including the determination of: base 

offense levels where more than one 

level is provided, specific offense 

characteristics, and any cross references 

in Chapter Two (Offense Conduct); any 

adjustments in Chapter Three 

(Adjustment); and certain departures 

and adjustments in Chapter Five 

(Determining the Sentence). 

Specifically, § 1B1.3(a)(1) provides 

that relevant conduct comprises ‘‘all 

acts and omissions committed, aided, 

abetted, counseled, commanded, 

induced, procured, or willfully caused 

by the defendant,’’ and all acts and 

omissions of others ‘‘in the case of a 

jointly undertaken criminal activity,’’ 

that ‘‘occurred during the commission 

of the offense of conviction, in 

preparation for that offense, or in the 

course of attempting to avoid detection 

or responsibility for that offense.’’ 

Relevant conduct also includes, for 

some offense types, ‘‘all acts and 

omissions described in subdivisions 

(1)(A) and (1)(B) above that were part of 

the same course of conduct or common 

scheme or plan as the offense of 

conviction,’’ ‘‘all harm that resulted 

from the acts and omissions specified in 

subsections (a)(1) and (a)(2) above, and 

all harm that was the object of such acts 

and omissions,’’ and ‘‘any other 

information specified in the applicable 

guideline.’’ See USSG § 1B1.3(a)(2)– 

(a)(4). The background commentary to 

§ 1B1.3 explains that ‘‘[c]onduct that is 

not formally charged or is not an 

element of the offense of conviction may 

enter into the determination of the 

applicable guideline sentencing range.’’ 

The Guidelines Manual also includes 

Chapter Six, Part A (Sentencing 

Procedures) addressing sentencing 

procedures that are applicable in all 

cases. Specifically, § 6A1.3 provides for 

resolution of any reasonably disputed 

factors important to the sentencing 

determination. Section 6A1.3(a) 

provides, in pertinent part, that ‘‘[i]n 

resolving any dispute concerning a 

factor important to sentencing 

determination, the court may consider 

relevant information without regard to 

its admissibility under the rules of 

evidence applicable at trial, provided 

that the information has sufficient 

indicia of reliability to support its 

probable accuracy.’’ The Commentary to 

§ 6A1.3 instructs that ‘‘[i]n determining 

the relevant facts, sentencing judges are 

not restricted to information that would 

be admissible at trial’’ and that ‘‘[a]ny 

information may be considered’’ so long 

as it has sufficient indicia of reliability 

to support its probable accuracy. The 

Commentary cites to 18 U.S.C. 3661 and 

Supreme Court case law upholding the 

sentencing court’s discretion in 

considering any information at 

sentencing, so long as it is proved by a 

preponderance of the evidence. 

Consistent with the Supreme Court case 

law, the Commentary also provides that 

‘‘[t]he Commission believes that use of 

a preponderance of the evidence 

standard is appropriate to meet due 

process requirements and policy 

concerns in resolving disputes regarding 

application of the guidelines to the facts 

of a case.’’ 

In fiscal year 2022, nearly all 

sentenced individuals (62,529; 97.5%) 

were convicted through a guilty plea. 

The remaining 1,613 sentenced 

individuals (2.5% of all sentenced 

individuals) were convicted and 

sentenced after a trial, and 286 of those 

sentenced individuals (0.4% of all 

sentenced individuals) were acquitted 

of at least one offense or found guilty of 

only a lesser included offense. 

The proposed amendment would 

amend the Guidelines Manual to 

address the use of acquitted conduct for 

purposes of determining a sentence. 

Three options are presented. 

Option 1 would amend § 1B1.3 to add 

a new subsection (c) providing that 

acquitted conduct is not relevant 

conduct for purposes of determining the 

guideline range. It would define 

‘‘acquitted conduct’’ as conduct 

[underlying] [constituting an element of] 

a charge of which the defendant has 

been acquitted by the trier of fact in 

federal court or upon a motion of 

acquittal pursuant to Rule 29 of the 

Federal Rules of Criminal Procedure. It 

brackets possible language that would 

exclude from the definition of 

‘‘acquitted conduct’’ conduct 

establishing, in whole or in part, the 

instant offense of conviction that was 

admitted by the defendant during a 

guilty plea colloquy or found by the 

trier of fact beyond a reasonable doubt. 

The proposed amendment further 

brackets the possibility of clarifying that 

such conduct is excluded from the 

definition regardless of whether the 

conduct also underlies a charge of 

which the defendant has been acquitted. 

Option 1 would also amend the 

Commentary to § 6A1.3 (Resolution of 

Disputed Factors (Policy Statement)) to 

make conforming revisions addressing 

the use of acquitted conduct for 

purposes of determining the guideline 

range. 

Option 2 would amend the 

Commentary to § 1B1.3 to add a new 

application note providing that a 

downward departure may be warranted 

if the use of acquitted conduct has a 

disproportionate impact in determining 

the guideline range relative to the 

offense of conviction. It brackets the 

possibility of limiting the departure’s 

application to cases in which the impact 


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is ‘‘extremely’’ disproportionate. It 

clarifies in a parenthetical that acquitted 

conduct is conduct [underlying] 

[constituting an element of] a charge of 

which the defendant has been acquitted 

by the trier of fact in federal court or 

upon a motion of acquittal pursuant to 

Rule 29 of the Federal Rules of Criminal 

Procedure. 

Option 3 would amend § 6A1.3 to add 

a new subsection (c) addressing the 

standard of proof required to resolve 

disputes involving sentencing factors. It 

provides that a preponderance of the 

evidence standard generally is 

appropriate to meet due process 

requirements and policy concerns in 

resolving such disputes. However, it 

further provides that acquitted conduct 

should not be considered unless it is 

established by clear and convincing 

evidence. 

It would define ‘‘acquitted conduct’’ 

as conduct [underlying] [constituting an 

element of] a charge of which the 

defendant has been acquitted by the 

trier of fact in federal court or upon a 

motion of acquittal pursuant to Rule 29 

of the Federal Rules of Criminal 

Procedure. 

Option 3 would also make conforming 

changes to the Commentary of §§ 6A1.3 

and 1B1.3. 

Issues for comment are also provided. 

Proposed Amendment: 

[Option 1 (Acquitted conduct 

excluded from guideline range): 

Section 1B1.3 is amended— 

in subsection (a), in the heading, by 

striking ‘‘Chapters Two (Offense 

Conduct) and Three (Adjustments).’’ 

and inserting ‘‘Chapters Two (Offense 

Conduct) and Three (Adjustments).—’’; 

in subsection (b), in the heading, by 

striking ‘‘Chapters Four (Criminal 

History and Criminal Livelihood) and 

Five (Determining the Sentence).’’ and 

inserting ‘‘Chapters Four (Criminal 

History and Criminal Livelihood) and 

Five (Determining the Sentence).—’’; 

and by inserting at the end the 

following new subsection (c): 

‘‘(c) Acquitted Conduct.— 

(1) Exclusion.—Acquitted conduct is 

not relevant conduct for purposes of 

determining the guideline range. 

(2) Definition of Acquitted Conduct.— 

‘Acquitted conduct’ means conduct (i.e., 

any acts or omission) [underlying] 

[constituting an element of] a charge of 

which the defendant has been acquitted 

by the trier of fact in federal court or 

upon a motion of acquittal pursuant to 

Rule 29 of the Federal Rules of Criminal 

Procedure. 

[‘Acquitted conduct’ does not include 

conduct that— 

(A) was admitted by the defendant 

during a guilty plea colloquy; or 

(B) was found by the trier of fact 

beyond a reasonable doubt; 

to establish, in whole or in part, the 

instant offense of conviction[, regardless 

of whether such conduct also underlies 

a charge of which the defendant has 

been acquitted].]’’. 

The Commentary to § 6A1.3 is 

amended— 

by striking ‘‘see also United States v. 

Watts, 519 U.S. 148, 154 (1997) (holding 

that lower evidentiary standard at 

sentencing permits sentencing court’s 

consideration of acquitted conduct); 

Witte v. United States, 515 U.S. 389, 

399–401 (1995) (noting that sentencing 

courts have traditionally considered 

wide range of information without the 

procedural protections of a criminal 

trial, including information concerning 

criminal conduct that may be the 

subject of a subsequent prosecution);’’ 

and inserting ‘‘Witte v. United States, 

515 U.S. 389, 397–401 (1995) (noting 

that sentencing courts have traditionally 

considered a wide range of information 

without the procedural protections of a 

criminal trial, including information 

concerning uncharged criminal conduct, 

in sentencing a defendant within the 

range authorized by statute);’’; 

by striking ‘‘Watts, 519 U.S. at 157’’ 

and inserting ‘‘Witte, 515 U.S. at 399– 

401’’; 

and by inserting at the end of the 

paragraph that begins ‘‘The Commission 

believes that use of a preponderance of 

the evidence standard’’ the following: 

‘‘Acquitted conduct, however, is not 

relevant conduct for purposes of 

determining the guideline range. See 

subsection (c) of § 1B1.3 (Relevant 

Conduct). The court is not precluded 

from considering acquitted conduct in 

determining the sentence to impose 

within the guideline range, or whether 

a departure from the guidelines is 

warranted. See § 1B1.4 (Information to 

be Used in Imposing a Sentence 

(Selecting a Point Within the Guideline 

Range or Departing from the 

Guidelines)).’’.] 

[Option 2 (Downward departure): 

The Commentary to § 1B1.3 captioned 

‘‘Application Notes’’ is amended by 

inserting at the end the following new 

Note 10: 

‘‘10. Downward Departure 

Consideration for Acquitted Conduct.— 

If the use of acquitted conduct (i.e., 

conduct [underlying] [constituting an 

element of] a charge of which the 

defendant has been acquitted by the 

trier of fact in federal court or upon a 

motion of acquittal pursuant to Rule 29 

of the Federal Rules of Criminal 

Procedure) has [an extremely] [a] 

disproportionate impact in determining 

the guideline range relative to the 

offense of conviction, a downward 

departure may be warranted.’’.] 

[Option 3 (Clear and convincing 

evidence standard): 

Section 6A1.3 is amended— 

in subsection (a) by inserting at the 

beginning the following new heading: 

‘‘Presentation of Information.—’’; 

in subsection (b) by inserting at the 

beginning the following new heading: 

‘‘Sentencing Hearing.—’’; 

and by inserting at the end the 

following new subsection (c): 

‘‘(c) Standard of Proof.—The use of a 

preponderance of the evidence standard 

generally is appropriate to meet due 

process requirements and policy 

concerns in resolving disputes regarding 

application of the guidelines to the facts 

of a case. However, the court shall not 

consider acquitted conduct unless such 

conduct is established by clear and 

convincing evidence. 

For purposes of this guideline, 

‘acquitted conduct’ means conduct (i.e., 

any acts or omission) [underlying] 

[constituting an element of] a charge of 

which the defendant has been acquitted 

by the trier of fact in federal court or 

upon a motion of acquittal pursuant to 

Rule 29 of the Federal Rules of Criminal 

Procedure.’’. 

The Commentary to § 6A1.3 is 

amended by striking the last paragraph 

as follows: 

‘‘The Commission believes that use of 

a preponderance of the evidence 

standard is appropriate to meet due 

process requirements and policy 

concerns in resolving disputes regarding 

application of the guidelines to the facts 

of a case.’’. 

The Commentary to § 1B1.3 captioned 

‘‘Application Notes’’ is amended by 

inserting at the end the following new 

Note 10: 

‘‘10. Acquitted Conduct.—In 

accordance with § 6A1.3 (Resolution of 

Disputed Factors (Policy Statement), a 

court may not consider acquitted 

conduct for purposes of determining the 

guideline range unless such conduct is 

established by clear and convincing 

evidence.’’.] 

Issues for Comment: 

1. Option 1 of the proposed 

amendment would provide that 

acquitted conduct is not relevant 

conduct for purposes of determining the 

guideline range. It clarifies that a court 

is not precluded from considering 

acquitted conduct in determining the 

sentence to impose within the guideline 

range, or whether a departure from the 

guidelines is warranted. The 

Commission seeks comment on whether 

it should prohibit the consideration of 

acquitted conduct for purposes other 

than determining the guideline range. 


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For example, should the Commission 

prohibit a court from considering 

acquitted conduct in determining the 

sentence to impose within the guideline 

range, or whether a departure from the 

guidelines is warranted? Should the 

Commission go further by prohibiting 

the consideration of acquitted conduct 

for all purposes when imposing a 

sentence? The Commission seeks 

comment on the interaction between 

these more expansive potential 

prohibitions and 18 U.S.C. 3661, which 

provides that ‘‘[n]o limitation shall be 

placed on the information concerning 

the background, character, and conduct 

of a person convicted of an offense 

which a court of the United States may 

receive and consider for the purpose of 

imposing an appropriate sentence.’’ The 

Commission further seeks comment on 

whether any of these more expansive 

potential prohibitions exceeds the 

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

994 or any other congressional 

directives. 

The Commission further seeks 

comment on whether alternatively it 

should adopt a policy statement 

recommending against, rather than 

prohibiting, the consideration of 

acquitted conduct for certain sentencing 

steps. If so, what steps in the sentencing 

process should be included in such a 

policy statement? For example, should 

the policy statement recommend against 

the consideration of acquitted conduct 

for purposes of determining the 

guideline range, the sentence to impose 

within the guideline range, whether a 

departure from the guidelines is 

warranted, or any factor when imposing 

a sentence? 

2. The proposed amendment would 

define ‘‘acquitted conduct’’ as ‘‘conduct 

(i.e., any acts or omission) [underlying] 

[constituting an element of] a charge of 

which the defendant has been acquitted 

by the trier of fact in federal court or 

upon a motion of acquittal pursuant to 

Rule 29 of the Federal Rules of Criminal 

Procedure.’’ The Commission seeks 

comment on whether it should expand 

the proposed definition of ‘‘acquitted 

conduct’’ to also include acquittals from 

state, local, or tribal jurisdictions. 

Alternatively, should the Commission 

adopt the definition used in the 

‘‘Prohibiting Punishment of Acquitted 

Conduct Act of 2023,’’ S. 2788, 118th 

Cong. (1st Sess. 2023)? That bill would 

define ‘‘acquitted conduct’’ as ‘‘(1) an 

act (A) for which a person was 

criminally charged and adjudicated not 

guilty after trial in a Federal, State, or 

Tribal court; or (B) in the case of a 

juvenile, that was charged and for 

which the juvenile was found not 

responsible after a juvenile adjudication 

hearing; or (2) any act underlying a 

criminal charge or juvenile information 

dismissed (A) in a Federal court upon 

a motion for acquittal under rule 29 of 

the Federal Rules of Criminal 

Procedure; or (B) in a State or Tribal 

court upon a motion for acquittal or an 

analogous motion under the applicable 

State or Tribal rule of criminal 

procedure.’’ 

3. Option 1 of the proposed 

amendment brackets language that 

would exclude from the definition of 

‘‘acquitted conduct’’ conduct 

establishing, in whole or in part, the 

instant offense of conviction that was 

admitted by the defendant during a 

guilty plea colloquy or found by the 

trier of fact beyond a reasonable doubt. 

This exclusion is meant to address cases 

in which conduct underlying an 

acquitted charge overlaps with conduct 

that establishes the instant offense of 

conviction. The Commission seeks 

comment on whether such an exclusion 

is necessary to address ‘‘overlapping’’ 

conduct. If so, does the proposed 

exclusion adequately address 

overlapping conduct, or should the 

Commission provide additional or 

different guidance to address 

overlapping conduct? Alternatively, 

should the Commission add 

commentary to § 1B1.3 providing that 

courts should use their discretion under 

18 U.S.C. 3553(a) when considering 

acquitted conduct in anomalous cases 

involving overlapping conduct, such as 

cases involving interrelated charges 

(e.g., charges for inchoate offenses and 

the underlying offense)? 

4. The Commission seeks comment on 

whether any or all of the options 

presented should be revised to 

specifically address acquittals based on 

reasons unrelated to the substantive 

evidence, such as jurisdiction, venue, or 

statute of limitations. If so, how? For 

example, should conduct underlying 

such acquittals be excluded from the 

definition of ‘‘acquitted conduct’’? 

4. Circuit Conflicts 

Synopsis of Proposed Amendment: 

This proposed amendment addresses 

certain circuit conflicts involving 

§ 2K2.1 (Unlawful Receipt, Possession, 

or Transportation of Firearms or 

Ammunition; Prohibited Transactions 

Involving Firearms or Ammunition) and 

§ 2K2.4 (Use of Firearm, Armor-Piercing 

Ammunition, or Explosive During or in 

Relation to Certain Crimes). See U.S. 

Sent’g Comm’n, ‘‘Notice of Final 

Priorities,’’ 88 FR 60536 (Sept. 1, 2023) 

(identifying resolution of circuit 

conflicts as a priority). The proposed 

amendment contains two parts (Part A 

and Part B). The Commission is 

considering whether to promulgate 

either or both parts, as they are not 

mutually exclusive. 

Part A would amend § 2K2.1 to 

address a circuit conflict concerning 

whether a serial number must be 

illegible in order to apply the 4-level 

increase in § 2K2.1(b)(4)(B)(i) for a 

firearm that ‘‘had an altered or 

obliterated serial number.’’ Two options 

are presented. An issue for comment is 

also provided. 

Part B would amend the Commentary 

to § 2K2.4 to address a circuit conflict 

concerning whether subsection (c) of 

§ 3D1.2 (Groups of Closely Related 

Counts) permits grouping of a firearms 

count under 18 U.S.C. 922(g) with a 

drug trafficking count, where the 

defendant also has a separate count 

under 18 U.S.C. 924(c) based on the 

drug trafficking count. An issue for 

comment is also provided. 

(A) Circuit Conflict Concerning 

§ 2K2.1(b)(4)(B)(ii) 

Synopsis of Proposed Amendment: 

Subsection (b)(4) of § 2K2.1 (Unlawful 

Receipt, Possession, or Transportation 

of Firearms or Ammunition; Prohibited 

Transactions Involving Firearms or 

Ammunition) provides an alternative 

enhancement for a firearm that was 

stolen, that had an altered or obliterated 

serial number, or that was not otherwise 

marked with a serial number (other than 

a firearm manufactured prior to the 

effective date of the Gun Control Act of 

1968). Specifically, subsection (b)(4)(A) 

provides for a 2-level increase where a 

firearm is stolen, while subsection 

(b)(4)(B) provides for a 4-level increase 

where (i) a firearm has an altered or 

obliterated serial number or (ii) the 

defendant knew that any firearm 

involved in the offense was not 

otherwise marked with a serial number 

(other than a firearm manufactured prior 

to the effective date of the Gun Control 

Act of 1968) or was willfully blind to or 

consciously avoided knowledge of such 

fact. The Commentary to § 2K2.1 

provides that subsection (b)(4)(A) and 

(B)(i) apply regardless of whether the 

defendant knew or had reason to believe 

that the firearm was stolen or had an 

altered or obliterated serial number. 

USSG § 2K2.1, comment. (n.8(B)). 

The circuits are split regarding 

whether a serial number must be 

illegible in order to apply the 4-level 

increase in § 2K2.1(b)(4)(B)(i) for a 

firearm that ‘‘had an altered or 

obliterated serial number.’’ The Ninth 

Circuit first analyzed the meaning of 

‘‘altered or obliterated’’ and determined 

that ‘‘a firearm’s serial number is 

‘altered or obliterated’ when it is 

materially changed in a way that makes 


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accurate information less accessible.’’ 

See United States v. Carter, 421 F.3d 

909, 916 (9th Cir. 2005). Various circuits 

have cited this decision, with different 

conclusions on the extent of legibility. 

The Sixth Circuit has determined that 

a serial number must be illegible, 

adopting a ‘‘naked eye test’’, that is, ‘‘a 

serial number that is defaced but 

remains visible to the naked eye is not 

‘altered or obliterated’ under the 

guideline.’’ United States v. Sands, 948 

F.3d 709, 719 (6th Cir. 2020). This 

holding is based on the Sixth Circuit’s 

determination that ‘‘[a]ny person with 

basic vision and reading ability would 

be able to tell immediately whether a 

serial number is legible,’’ and may be 

less inclined to purchase a firearm 

without a legible serial number. Id. at 

717. The Second Circuit has followed 

the Sixth Circuit in holding that 

‘‘altered’’ means illegible for the same 

reasons. See United States v. St. Hilaire, 

960 F.3d 61, 66 (2d Cir. 2020) (‘‘We 

follow the Sixth Circuit, which defines 

‘altered’ to mean illegible.’’ (citing 

Sands, 948 F.3d at 715, 719)). 

By contrast, the Fourth, Fifth, and 

Eleventh Circuits have upheld the 

enhancement where a serial number is 

legible or ‘‘less legible.’’ See, e.g., 

United States v. Millender, 791 F. App’x 

782 (11th Cir. 2019); United States v. 

Harris, 720 F.3d 499 (4th Cir. 2013); 

United States v. Perez, 585 F.3d 880 (5th 

Cir. 2009). The Fourth Circuit held that 

‘‘a serial number that is made less 

legible is made different and therefore is 

altered for purposes of the 

enhancement.’’ Harris, 720 F.3d at 501. 

Similarly, the Fifth Circuit affirmed the 

enhancement where the damage did not 

render the serial number unreadable but 

‘‘the serial number of the firearm [ ] had 

been materially changed in a way that 

made its accurate information less 

accessible.’’ Perez, 585 F.3d at 884. 

While the Eleventh Circuit reasoned 

that an interpretation where altered 

means illegible ‘‘would render 

‘obliterated’ superfluous.’’ Millender, 

791 App’x at 783. 

Part A of the proposed amendment 

would amend § 2K2.1(b)(4) to include a 

definition for ‘‘altered or obliterated 

serial number’’ to address the circuit 

conflict. Two options are provided. 

Option 1 would set forth a definition 

of ‘‘altered or obliterated serial number’’ 

that adopts an approach similar to the 

approach of the Second and Sixth 

Circuits. It would provide that such 

term ‘‘[ordinarily] means a serial 

number of a firearm that has been 

changed, modified, affected, defaced, 

scratched, erased, or replaced such that 

the original information is rendered 

illegible or unrecognizable to the 

unaided eye.’’ 

Option 2 would set forth a definition 

of ‘‘altered or obliterated serial number’’ 

that adopts an approach similar to the 

approach of the Fourth, Fifth, Ninth, 

and Eleventh Circuits. It would provide 

that such term ‘‘[ordinarily] means a 

serial number of a firearm that has been 

changed, modified, affected, defaced, 

scratched, erased, or replaced to make 

the [original] information less 

accessible, even if such information 

remains legible.’’ 

An issue for comment is also 

provided. 

Proposed Amendment: 

[Option 1: 

Section 2K2.1(b)(4) is amended by 

inserting after ‘‘4 levels.’’ the following: 

‘‘For purposes of subsection (b)(4)(B)(i), 

an ‘altered or obliterated serial number’ 

[ordinarily] means a serial number of a 

firearm that has been changed, 

modified, affected, defaced, scratched, 

erased, or replaced such that the 

original information is rendered 

illegible or unrecognizable to the 

unaided eye.’’.] 

[Option 2: 

Section 2K2.1(b)(4) is amended by 

inserting after ‘‘4 levels.’’ the following: 

‘‘For purposes of subsection (b)(4)(B)(i), 

an ‘altered or obliterated serial number’ 

[ordinarily] means a serial number of a 

firearm that has been changed, 

modified, affected, defaced, scratched, 

erased, or replaced to make the 

[original] information less accessible, 

even if such information remains 

legible.’’.] 

Issue for Comment: 

1. Part A of the proposed amendment 

sets forth two options to address the 

circuit conflict described in the 

synopsis above. The Commission seeks 

comment on whether it should address 

the circuit conflict in a manner other 

than the options provided in Part A of 

the proposed amendment. If so, how? 

(B) Circuit Conflict Concerning the 

Interaction Between § 2K2.4 and 

§ 3D1.2(c) 

Synopsis of Proposed Amendment: 

Section 3D1.2 (Grouping of Closely 

Related Counts) addresses the grouping 

of closely related counts for purposes of 

determining the offense level when a 

defendant has been convicted on 

multiple counts. Subsection (c) states 

that counts are grouped together 

‘‘[w]hen one of the counts embodies 

conduct that is treated as a specific 

offense characteristic in, or other 

adjustment to, the guideline applicable 

to another of the counts.’’ The 

Commentary to § 3D1.2 further explains 

that ‘‘[s]ubsection (c) provides that 

when conduct that represents a separate 

count, e.g., bodily injury or obstruction 

of justice, is also a specific offense 

characteristic in or other adjustment to 

another count, the count represented by 

that conduct is to be grouped with the 

count to which it constitutes an 

aggravating factor.’’ USSG § 3D1.2, 

comment. (n.5). 

Section 2K2.4 (Use of Firearm, ArmorPiercing Ammunition, or Explosive 

During or in Relation to Certain Crimes) 

is the guideline applicable to certain 

statutes with mandatory minimum 

terms of imprisonment (e.g., 18 U.S.C. 

924(c)). The guideline provides that if a 

defendant, whether or not convicted of 

another crime, was convicted of a 

violation of any of these statutes, the 

guideline sentence is the minimum term 

of imprisonment required by statute. 

See USSG § 2K2.4(a)–(b). Chapters 

Three (Adjustments) and Four (Criminal 

History and Criminal Livelihood) do not 

apply to that count of conviction. Id. In 

addition, the Commentary to § 2K2.4 

provides that ‘‘[i]f a sentence under this 

guideline is imposed in conjunction 

with a sentence for an underlying 

offense, do not apply any specific 

offense characteristic for possession, 

brandishing, use, or discharge of an 

explosive or firearm when determining 

the sentence for the underlying 

offense.’’ Id. comment. (n.4). The 

examples included in the application 

note specifically referenced 18 U.S.C. 

924(c) (which penalizes the possession 

or use of a firearm during, and in 

relation to, an underlying ‘‘crime of 

violence’’ or ‘‘drug trafficking crime’’ by 

imposing a mandatory minimum 

penalty consecutive to the sentence for 

the underlying offense). 

The circuits are split regarding 

whether § 3D1.2(c) permits grouping of 

a firearms count under 18 U.S.C. 922(g) 

with a drug trafficking count, where the 

defendant also has a separate count 

under 18 U.S.C. 924(c) based on the 

drug trafficking count. Ordinarily, the 

firearms and drug trafficking counts 

would group under § 3D1.2(c). The 

circuit conflict focuses on the presence 

of the count under 18 U.S.C. 924(c) and 

its interaction with the Commentary to 

§ 2K2.4 cited above precluding 

application of the relevant specific 

offense characteristics where the 

conduct covered by any such 

enhancement forms the basis of the 

conviction under 18 U.S.C.§ 924(c). 

The Sixth, Eighth, and Eleventh 

Circuits have held that such counts can 

be grouped in this situation. See, e.g., 

United States v. Gibbs, 395 F. App’x 

248, 250 (6th Cir. 2010) (‘‘The district 

court properly grouped together Gibbs’s 

drug and felon-in-possession 


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offenses.’’); United States v. Bell, 477 

F.3d 607, 615–16 (8th Cir. 2007) (‘‘the 

felon in possession count and the crack 

cocaine count should have been 

grouped together for sentencing 

purposes’’); United States v. King, 201 F. 

App’x 715, 718 (11th Cir. 2006) 

(grouping permitted; felon-in-possession 

count ‘‘embodies conduct that is treated 

as a specific offense characteristic’’ to 

drug trafficking counts). These circuits 

held that grouping was permissible as 

the Chapter Two guidelines for the 

felon-in-possession conviction and drug 

conviction each include ‘‘conduct that 

is treated as specific offense 

characteristics in the other offense,’’ 

regardless of whether the enhancements 

are used due to the rules in § 2K2.4 

related to 18 U.S.C. 924(c)). Bell, 477 

F.3d at 615–16. 

By contrast, the Seventh Circuit has 

held that there is no basis for grouping 

felon-in-possession and drug trafficking 

counts since grouping rules are to be 

applied only after the offense level for 

each count has been determined and 

‘‘by virtue of § 2K2.4, [the counts] did 

not operate as specific offense 

characteristics of each other, and the 

enhancements in §§ 2D1.1(b)(1) and 

2K2.1(b)(6)(B) did not apply.’’ United 

States v. Sinclair, 770 F.3d 1148, 1157– 

58 (7th Cir. 2014); see also United States 

v. Lamon, 893 F.3d 369, 371 (7th Cir. 

2018) (declining to overturn Sinclair to 

rectify the circuit split; ‘‘the mere 

existence of a circuit split does not 

justify overturning precedent . . . 

especially true here, because in Sinclair 

we knew that we were creating the split, 

and in doing so weighed the impact that 

our contrary decision would have on 

uniformity among the circuits’’). The 

Seventh Circuit further explained, 

‘‘[w]ith this particular combination of 

offenses, the otherwise applicable basis 

for grouping the drug-trafficking and 

felon-in-possession counts dropped out 

of the case.’’ Sinclair, 770 F.3d at 1157– 

58. 

Part B of the proposed amendment 

generally follows the Sixth, Eighth, and 

Eleventh Circuits’ approach. It would 

amend the Commentary to § 2K2.4 to 

restate the grouping rule in § 3D1.2(c) 

and provide an example stating that, in 

accordance with § 3D1.2(c), in case in 

which the defendant is convicted of a 

felon-in-possession count under 18 

U.S.C. 922(g) and a drug trafficking 

count underlying a conviction under 18 

U.S.C. 924(c), such counts shall be 

grouped. 

An issue for comment is also 

provided. 

Proposed Amendment: The 

Commentary to § 2K2.4 captioned 

‘‘Application Notes’’ is amended in 

Note 4 by striking the following: 

‘‘Weapon Enhancement.—If a 

sentence under this guideline is 

imposed in conjunction with a sentence 

for an underlying offense, do not apply 

any specific offense characteristic for 

possession, brandishing, use, or 

discharge of an explosive or firearm 

when determining the sentence for the 

underlying offense. A sentence under 

this guideline accounts for any 

explosive or weapon enhancement for 

the underlying offense of conviction, 

including any such enhancement that 

would apply based on conduct for 

which the defendant is accountable 

under § 1B1.3 (Relevant Conduct). Do 

not apply any weapon enhancement in 

the guideline for the underlying offense, 

for example, if (A) a co-defendant, as 

part of the jointly undertaken criminal 

activity, possessed a firearm different 

from the one for which the defendant 

was convicted under 18 U.S.C. 924(c); 

or (B) in an ongoing drug trafficking 

offense, the defendant possessed a 

firearm other than the one for which the 

defendant was convicted under 18 

U.S.C. 924(c). However, if a defendant is 

convicted of two armed bank robberies, 

but is convicted under 18 U.S.C. 924(c) 

in connection with only one of the 

robberies, a weapon enhancement 

would apply to the bank robbery which 

was not the basis for the 18 U.S.C. 

924(c) conviction. 

A sentence under this guideline also 

accounts for conduct that would subject 

the defendant to an enhancement under 

§ 2D1.1(b)(2) (pertaining to use of 

violence, credible threat to use violence, 

or directing the use of violence). Do not 

apply that enhancement when 

determining the sentence for the 

underlying offense. 

If the explosive or weapon that was 

possessed, brandished, used, or 

discharged in the course of the 

underlying offense also results in a 

conviction that would subject the 

defendant to an enhancement under 

§ 2K1.3(b)(3) (pertaining to possession 

of explosive material in connection with 

another felony offense) or 

§ 2K2.1(b)(6)(B) (pertaining to 

possession of any firearm or 

ammunition in connection with another 

felony offense), do not apply that 

enhancement. A sentence under this 

guideline accounts for the conduct 

covered by these enhancements because 

of the relatedness of that conduct to the 

conduct that forms the basis for the 

conviction under 18 U.S.C. 844(h), 

§ 924(c) or § 929(a). For example, if in 

addition to a conviction for an 

underlying offense of armed bank 

robbery, the defendant was convicted of 

being a felon in possession under 18 

U.S.C. 922(g), the enhancement under 

§ 2K2.1(b)(6)(B) would not apply. 

In a few cases in which the defendant 

is determined not to be a career 

offender, the offense level for the 

underlying offense determined under 

the preceding paragraphs may result in 

a guideline range that, when combined 

with the mandatory consecutive 

sentence under 18 U.S.C. 844(h), 

§ 924(c), or § 929(a), produces a total 

maximum penalty that is less than the 

maximum of the guideline range that 

would have resulted had there not been 

a count of conviction under 18 U.S.C. 

844(h), § 924(c), or § 929(a) (i.e., the 

guideline range that would have 

resulted if the enhancements for 

possession, use, or discharge of a 

firearm had been applied). In such a 

case, an upward departure may be 

warranted so that the conviction under 

18 U.S.C. 844(h), § 924(c), or § 929(a) 

does not result in a decrease in the total 

punishment. An upward departure 

under this paragraph shall not exceed 

the maximum of the guideline range 

that would have resulted had there not 

been a count of conviction under 18 

U.S.C. 844(h), § 924(c), or § 929(a).’’; 

and inserting the following: 

‘‘Non-Applicability of Certain 

Enhancements.— 

(A) In General.—If a sentence under 

this guideline is imposed in conjunction 

with a sentence for an underlying 

offense, do not apply any specific 

offense characteristic for possession, 

brandishing, use, or discharge of an 

explosive or firearm when determining 

the sentence for the underlying offense. 

A sentence under this guideline 

accounts for any explosive or weapon 

enhancement for the underlying offense 

of conviction, including any such 

enhancement that would apply based on 

conduct for which the defendant is 

accountable under § 1B1.3 (Relevant 

Conduct). Do not apply any weapon 

enhancement in the guideline for the 

underlying offense, for example, if (A) a 

co-defendant, as part of the jointly 

undertaken criminal activity, possessed 

a firearm different from the one for 

which the defendant was convicted 

under 18 U.S.C. 924(c); or (B) in an 

ongoing drug trafficking offense, the 

defendant possessed a firearm other 

than the one for which the defendant 

was convicted under 18 U.S.C. 924(c). 

However, if a defendant is convicted of 

two armed bank robberies, but is 

convicted under 18 U.S.C. 924(c) in 

connection with only one of the 

robberies, a weapon enhancement 

would apply to the bank robbery which 

was not the basis for the 18 U.S.C. 

924(c) conviction. 


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A sentence under this guideline also 

accounts for conduct that would subject 

the defendant to an enhancement under 

§ 2D1.1(b)(2) (pertaining to use of 

violence, credible threat to use violence, 

or directing the use of violence). Do not 

apply that enhancement when 

determining the sentence for the 

underlying offense. 

If the explosive or weapon that was 

possessed, brandished, used, or 

discharged in the course of the 

underlying offense also results in a 

conviction that would subject the 

defendant to an enhancement under 

§ 2K1.3(b)(3) (pertaining to possession 

of explosive material in connection with 

another felony offense) or 

§ 2K2.1(b)(6)(B) (pertaining to 

possession of any firearm or 

ammunition in connection with another 

felony offense), do not apply that 

enhancement. A sentence under this 

guideline accounts for the conduct 

covered by these enhancements because 

of the relatedness of that conduct to the 

conduct that forms the basis for the 

conviction under 18 U.S.C. 844(h), 

§ 924(c) or § 929(a). For example, if in 

addition to a conviction for an 

underlying offense of armed bank 

robbery, the defendant was convicted of 

being a felon in possession under 18 

U.S.C. 922(g), the enhancement under 

§ 2K2.1(b)(6)(B) would not apply. 

(B) Impact on Grouping.—If two or 

more counts would otherwise group 

under subsection (c) of § 3D1.2 (Groups 

of Closely Related Counts), the counts 

are to be grouped together under 

§ 3D1.2(c) despite the non-applicability 

of certain enhancements under 

Application Note 4(A). Thus, for 

example, in a case in which the 

defendant is convicted of a felon-inpossession count under 18 U.S.C. 922(g) 

and a drug trafficking count underlying 

a conviction under 18 U.S.C. 924(c), the 

counts shall be grouped pursuant to 

§ 3D1.2(c). The applicable Chapter Two 

guidelines for the felon-in-possession 

count and the drug trafficking count 

each include ‘conduct that is treated as 

a specific offense characteristic’ in the 

other count, but the otherwise 

applicable enhancements did not apply 

due to the rules in § 2K2.4 related to 18 

U.S.C. 924(c) convictions. 

(C) Upward Departure Provision.—In 

a few cases in which the defendant is 

determined not to be a career offender, 

the offense level for the underlying 

offense determined under the preceding 

paragraphs may result in a guideline 

range that, when combined with the 

mandatory consecutive sentence under 

18 U.S.C. 844(h), § 924(c), or § 929(a), 

produces a total maximum penalty that 

is less than the maximum of the 

guideline range that would have 

resulted had there not been a count of 

conviction under 18 U.S.C. 844(h), 

§ 924(c), or § 929(a) (i.e., the guideline 

range that would have resulted if the 

enhancements for possession, use, or 

discharge of a firearm had been 

applied). In such a case, an upward 

departure may be warranted so that the 

conviction under 18 U.S.C. 844(h), 

§ 924(c), or § 929(a) does not result in a 

decrease in the total punishment. An 

upward departure under this paragraph 

shall not exceed the maximum of the 

guideline range that would have 

resulted had there not been a count of 

conviction under 18 U.S.C. 844(h), 

§ 924(c), or § 929(a).’’. 

Issue for Comment: 

1. Part B of the proposed amendment 

would amend the Commentary to 

§ 2K2.4 (Use of Firearm, Armor-Piercing 

Ammunition, or Explosive During or in 

Relation to Certain Crimes) to address 

the circuit conflict described in the 

synopsis above. It would amend 

Application Note 4 in the Commentary 

to § 2K2.4 to restate the grouping rule in 

subsection (c) of § 3D1.2 (Grouping of 

Closely Related Counts) and provide an 

example stating that, in accordance with 

§ 3D1.2(c), in a case in which the 

defendant is convicted of a felon-inpossession count under 18 U.S.C. 922(g) 

and a drug trafficking count underlying 

a conviction under 18 U.S.C. 924(c), 

such counts shall be grouped. The 

Commission seeks comment on whether 

it should provide additional or different 

guidance to address this circuit conflict. 

In the alternative, should the 

Commission address the circuit conflict 

in a manner other than the one provided 

in Part B of the proposed amendment? 

For example, should the Commission 

amend § 3D1.2 to provide additional or 

different guidance about how to apply 

§ 3D1.2(c)? 

5. Miscellaneous 

Synopsis of Proposed Amendment: 

This proposed amendment responds to 

recently enacted legislation and 

miscellaneous guideline issues. See U.S. 

Sent’g Comm’n, ‘‘Notice of Final 

Priorities,’’ 88 FR 60536 (Sept. 1, 2023) 

(identifying as priorities 

‘‘[i]mplementation of any legislation 

warranting Commission action’’ and 

‘‘[c]onsideration of other miscellaneous 

issues coming to the Commission’s 

attention’’). The proposed amendment 

contains six parts (Parts A through F). 

The Commission is considering whether 

to promulgate any or all these parts, as 

they are not mutually exclusive. 

Part A responds to the Safeguard 

Tribal Objects of Patrimony (‘‘STOP’’) 

Act of 2021, Public Law 117–258 (2022), 

by amending Appendix A (Statutory 

Index) and the Commentary to § 2B1.5 

(Theft of, Damage to, or Destruction of, 

Cultural Heritage Resources or 

Paleontological Resources; Unlawful 

Sale, Purchase, Exchange, 

Transportation, or Receipt of Cultural 

Heritage Resources or Paleontological 

Resources). An issue for comment is 

also provided. 

Part B responds to the Export Control 

Reform Act of 2018, enacted as part of 

the John McCain National Defense 

Authorization Act for Fiscal Year 2019, 

Public Law 115–232 (Aug. 13, 2018), 

and to concerns raised by the 

Department of Justice and the 

Disruptive Technology Strike Force (an 

interagency collaboration between the 

Department of Justice’s National 

Security Division and the Department of 

Commerce’s Bureau of Industry and 

Security), by amending Appendix A and 

§ 2M5.1 (Evasion of Export Controls; 

Financial Transactions with Countries 

Supporting International Terrorism). 

Two issues for comment are also 

provided. 

Part C responds to concerns raised by 

the Department of Justice relating to 

offenses under 31 U.S.C. 5322 and 5336 

and § 2S1.3 (Structuring Transactions to 

Evade Reporting Requirements; Failure 

to Report Cash or Monetary 

Transactions; Failure to File Currency 

and Monetary Instrument Report; 

Knowingly Filing False Reports; Bulk 

Cash Smuggling; Establishing or 

Maintaining Prohibited Accounts), by 

amending the specific offense 

characteristic at § 2S1.3(b)(2)(B) to 

reflect the enhanced penalty applicable 

to offenses under those statutes. 

Part D responds to concerns raised by 

the Department of Justice relating to the 

statutes referenced in Appendix A to 

§ 2R1.1 (Bid-Rigging, Price-Fixing or 

Market-Allocation Agreements Among 

Competitors), by amending Appendix A 

and the Commentary to § 2R1.1 to 

replace the reference to 15 U.S.C. 3(b) 

with a reference to 15 U.S.C. 3(a). 

Part E addresses a miscellaneous 

issue regarding the application of the 

base offense levels at subsections (a)(1)– 

(a)(4) of § 2D1.1 (Unlawful 

Manufacturing, Importing, Exporting, or 

Trafficking (Including Possession with 

Intent to Commit These Offenses); 

Attempt or Conspiracy). Two options 

are presented. 

Part F responds to concerns raised by 

the Department of Justice relating to the 

scope of the definition of ‘‘sex offense’’ 

in subsection (b)(2) of § 4C1.1 

(Adjustment for Certain Zero-Point 

Offenders). Two options are presented. 


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(A) Safeguard Tribal Objects of 

Patrimony (‘‘STOP’’) Act of 2021 

Synopsis of Proposed Amendment: 

Part A of the proposed amendment 

responds to the Safeguard Tribal Objects 

of Patrimony (‘‘STOP’’) Act of 2021, 

Public Law 117–258 (Dec. 21, 2022). 

The Act added two new criminal 

offenses at 25 U.S.C. 3073 (Export 

prohibitions; export certification 

system; international agreements). In 

addition, the Act increased the penalties 

for offenses under 18 U.S.C. 1170 

(Illegal trafficking in Native American 

human remains and cultural items). 

The first new offense, created by the 

Act and codified at 25 U.S.C. 3073(a)(1), 

prohibits exporting, attempting to 

export, or otherwise transporting from 

the United States any ‘‘Item Prohibited 

from Exportation,’’ and conspiring to 

engage in and concealing such activity. 

An ‘‘Item Prohibited from Exportation’’ 

means (A) a cultural item prohibited 

from being trafficked (including through 

sale, purchase, use for profit, or 

transport for sale or profit) by 18 U.S.C. 

1170(b) or any other federal law or 

treaty; and (B) an archaeological 

resource prohibited from being 

trafficked (including through sale, 

purchase, exchange, transport, receipt, 

or offer to sell, purchase, or exchange, 

including in interstate or foreign 

commerce) by subsections (b) and (c) of 

16 U.S.C. 470ee (Archaeological 

Resources Protection; Prohibited acts 

and criminal penalties) or any other 

federal law or treaty. 25 U.S.C. 3072(5). 

A violation of this offense, if the person 

knew, or should have known, that the 

item was taken, possessed, transported, 

or sold in violation of, or in a manner 

that is unlawful under, any federal law 

or treaty, is punishable by a maximum 

term of imprisonment of one year and 

one day for a first violation (and not 

more than ten years for a second or 

subsequent violation), a fine, or both. 25 

U.S.C. 3073(a)(2). 

The second new offense, codified at 

25 U.S.C. 3073(b)(5)(A)(i), prohibits 

exporting, attempting to export, or 

otherwise transporting from the United 

States any ‘‘Item Requiring Export 

Certification’’ without first obtaining an 

export certification. An ‘‘Item Requiring 

Export Certification’’ means a cultural 

item and an archaeological resource but 

does not include any such item or 

resource for which an Indian Tribe or 

Native Hawaiian organization with a 

cultural affiliation with the item has 

provided a certificate authorizing 

exportation of the item. 25 U.S.C. 

3072(6). A violation of this provision is 

subject to a civil penalty and any other 

applicable penalties under chapter 32B 

(Safeguard Tribal Objects of Patrimony) 

of title 25, United States Code. 25 U.S.C. 

3073(b)(5)(A)(ii). 

In addition, the Act increased the 

maximum terms of imprisonment for 

offenses under 18 U.S.C. 1170. Section 

1170(a) prohibits knowingly selling, 

purchasing, using for profit, or 

transporting for sale or profit, the 

human remains of a Native American 

without the right of possession to those 

remains. The Act increased the penalty 

for this offense from a maximum term 

of imprisonment of 12 months to one 

year and one day, changing its 

classification from a misdemeanor to a 

felony. It further increased the 

maximum term of imprisonment for a 

second or subsequent offense under 

section 1170(a) from five to ten years. 

The Act also increased the maximum 

term of imprisonment for a second or 

subsequent offense under 18 U.S.C. 

1170(b) from five to ten years. Section 

1170(b) prohibits knowingly selling, 

purchasing, using for profit, or 

transporting for sale or profit, any 

Native American cultural items 

obtained in violation of the Native 

American Grave Protection and 

Repatriation Act. Section 1170 offenses 

are currently referenced in Appendix A 

(Statutory Index) to § 2B1.5 (Theft of, 

Damage to, or Destruction of, Cultural 

Heritage Resources or Paleontological 

Resources; Unlawful Sale, Purchase, 

Exchange, Transportation, or Receipt of 

Cultural Heritage Resources or 

Paleontological Resources). The 

maximum terms of imprisonment for 

offenses under 18 U.S.C. 1170, as 

revised by the Act, are still within the 

maximum penalty range of one year to 

20 years for other offenses referenced to 

§ 2B1.5. 

Part A of the proposed amendment 

would amend Appendix A to reference 

the new offenses under 25 U.S.C. 3073 

to § 2B1.5. The conduct prohibited by 

25 U.S.C. 3073 is similar to the conduct 

prohibited by 18 U.S.C. 1170. Part A of 

the proposed amendment would also 

amend the Commentary to § 2B1.5 to 

reflect that 25 U.S.C. 3073 is referenced 

to the guideline. In addition, it would 

make additional technical changes to 

the Commentary to § 2B1.5, including 

specifying that 18 U.S.C. 666(a)(1)(A) is 

referenced to the guideline. 

An issue for comment is also 

provided. 

Proposed Amendment: Appendix A 

(Statutory Index) is amended by 

inserting before the line referenced to 25 

U.S.C. 5306 the following new line 

reference: 

‘‘25 U.S.C. 3073 2B1.5’’. 

The Commentary to § 2B1.5 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘16 U.S.C. 470aaa–5, 470ee, 

668(a), 707(b); 18 U.S.C. 541–546, 554, 

641, 661–662, 666, 668, 1163, 1168, 

1170, 1361, 1369, 2232, 2314–2315’’ and 

inserting: ‘‘16 U.S.C. 470aaa–5, 470ee, 

668(a), 707(b); 18 U.S.C. 541–546, 554, 

641, 661–662, 666(a)(1)(A), 668, 1163, 

1168, 1170, 1361, 1369, 2232, 2314– 

2315; 25 U.S.C. 3073. For additional 

statutory provision(s), see Appendix A 

(Statutory Index)’’. 

Issue for Comment: 

1. In response to the Safeguard Tribal 

Objects of Patrimony (‘‘STOP’’) Act of 

2021, Public Law 117–258 (2022), Part 

A of the proposed amendment would 

reference 25 U.S.C. 3073 to § 2B1.5 

(Theft of, Damage to, or Destruction of, 

Cultural Heritage Resources or 

Paleontological Resources; Unlawful 

Sale, Purchase, Exchange, 

Transportation, or Receipt of Cultural 

Heritage Resources or Paleontological 

Resources). The Commission seeks 

comment on whether any additional 

changes to the guidelines are required in 

response to the Act. Specifically, should 

the Commission amend § 2B1.5 to 

provide a higher or lower base offense 

level in response to the changes brought 

by the Act? If so, what should that base 

offense level be and why? Should the 

Commission add a specific offense 

characteristic to § 2B1.5 in response to 

the Act? If so, what should that specific 

offense characteristic provide and why? 

(B) Evasion of Export Controls 

Synopsis of Proposed Amendment: 

Part B of the proposed amendment 

responds to the Export Control Reform 

Act of 2018, enacted as part of the John 

McCain National Defense Authorization 

Act for Fiscal Year 2019, Public Law 

115–232 (Aug. 13, 2018), and to 

concerns raised by the Department of 

Justice and the Disruptive Technology 

Strike Force (an interagency 

collaboration between the Department 

of Justice’s National Security Division 

and the Department of Commerce’s 

Bureau of Industry and Security). 

The Export Control Reform Act of 

2018 repealed the Export 

Administration Act of 1979 (previously 

codified at 50 U.S.C. 4601–4623) 

regarding export controls of dual-use 

items. Dual-use items have both civilian 

and military applications and are 

subject to export licensing requirements. 

The Export Control Reform Act of 2018 

also included new provisions, codified 

at 50 U.S.C. 4801–4826, relating to 

export controls for national security and 

foreign policy purposes, to further the 

policy of the United States ‘‘to restrict 

the export of items which would make 

a significant contribution to the military 

potential of any other country or 


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combination of countries which would 

prove detrimental to the national 

security of the United States’’ and ‘‘to 

restrict the export of items if necessary 

to further significantly the foreign 

policy of the United States or to fulfill 

its declared international obligations.’’ 

See 50 U.S.C. 4811. These new 

provisions authorize the Department of 

Commerce to develop the Export 

Administration Regulations, which 

establish the export controls governing 

dual-use and other items. In addition, 

the Export Control Reform Act of 2018 

is the first export control statute to 

explicitly consider the economic 

security of the United States as a 

component or element of national 

security. 

The Export Control Reform Act of 

2018 maintained much of the dual-use 

export controls previously established 

under the Export Administration Act of 

1979, but in a process that is still 

ongoing, the agencies charged with 

administering and enforcing the Act are 

still making significant changes to what 

items are controlled and have increased 

the overall restrictions on export 

licensing. In addition to the items and 

services already controlled by the 

Export Administration Regulations, the 

Export Control Reform Act of 2018 

requires the President to establish an 

interagency process to identify 

‘‘emerging and foundational 

technologies that are ‘essential to the 

national security of the United States’ ’’ 

but are not already included in the 

definition of ‘‘critical technologies’’ in 

the Foreign Investment Risk Review 

Modernization Act. See 50 U.S.C. 

4817(a). Examples of ‘‘emerging 

technologies’’ include artificial 

intelligence and machine learning; 

quantum information and sensing 

technology; robotics; and biotechnology. 

‘‘Foundational technologies’’ are 

described as technologies that may 

warrant stricter controls if an 

application or capability of that 

technology poses a national security 

threat. The Export Control Reform Act 

of 2018 also requires the Department of 

Commerce to ‘‘establish and maintain a 

list’’ of controlled items, foreign 

persons, and end uses determined to be 

a threat to national security and foreign 

policy. Id. § 4813. 

The Export Control Reform Act of 

2018 includes a criminal offense at new 

section 4819 (replacing repealed 50 

U.S.C. 4610 (Violations)), which 

prohibits willfully committing, willfully 

attempting or conspiring to commit, or 

aiding and abetting a violation of the 

Act or of any regulation, order, license, 

or other authorization issued under the 

Act. Any such violation is punishable 

by a fine of not more than $1,000,000, 

a maximum term of imprisonment of 20 

years, or both. See 50 U.S.C. 4819(b). 

Offenses under repealed section 4610 

are currently referenced in Appendix A 

(Statutory Index) to § 2M5.1 (Evasion of 

Export Controls; Financial Transactions 

with Countries Supporting International 

Terrorism), which also appears to be the 

most analogous guideline for the 

offenses under new section 4819. The 

maximum term of imprisonment at new 

section 4819(b) is greater than the 

maximum penalties of five and ten years 

provided in the repealed section 4610 

but is within the maximum penalty 

range of ten to 20 years for other 

offenses referenced to § 2M5.1. 

In addition, the Department of Justice 

and the Disruptive Technology Strike 

Force recommended that the 

Commission consider amending § 2M5.1 

to ensure that all controls related to 

national security are covered by the 

guideline provisions. See Annual Letter 

from the U.S. Department of Justice to 

the Commission (Aug. 1, 2023), at 

https://www.ussc.gov/sites/default/files/ 

pdf/amendment-process/publiccomment/202308/88FR39907_publiccomment_R.pdf#page=38; Letter from 

U.S. Department of Justice National 

Security Division & U.S. Department of 

Commerce Bureau of Industry and 

Security (Aug. 1, 2023), at https://www.

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

amendment-process/public-comment/ 

202308/88FR39907_public-comment_

R.pdf#page=55. Both the Department of 

Justice and the Disruptive Technology 

Strike Force are concerned that, given 

the wide-range of national securityrelated controls in force, some courts 

have applied § 2M5.1 too narrowly. 

The Department of Justice explained 

that under the Export Administration 

Regulations and the Commerce Control 

List (contained within the Export 

Administration Regulations) export 

controls related to national security can 

carry different designations correlating 

to the specific reason certain items (i.e., 

commodities, software, technology) are 

subject to the nation’s export licensing 

authority and are thus controlled. One 

such designation is ‘‘NS’’ (National 

Security), while other designations 

include ‘‘MT’’ (Missile Technology), 

‘‘RS,’’ (Regional Stability), ‘‘CB’’ 

(Proliferation of Chemical and 

Biological Weapons), ‘‘AT’’ (AntiTerrorism), and ‘‘NP’’ (Nuclear 

Nonproliferation). The Department of 

Justice further clarified that other export 

controls comprise ‘‘the full spectrum of 

national security related controls,’’ 

including export controls to certain 

military end-users and foreign entities 

when they present an unacceptable 

security risk to national security policy 

interests and export controls placed on 

certain goods and destinations based on 

sanctions and embargoes imposed by 

the President pursuant to the 

International Emergency Economic 

Powers Act (50 U.S.C. 1701–1705) or 

other specific acts of Congress. 

According to the Department of 

Justice, because § 2M5.1(a)(1)(A) 

specifically refers to ‘‘national security 

controls,’’ some sentencing courts may 

erroneously conclude that only the 

goods controlled under the Commerce 

Control List’s ‘‘NS’’ designation, and not 

the goods controlled under separate 

sections of the Export Administration 

Regulations or the International 

Emergency Economic Powers Act, 

qualify for the higher alternative base 

offense level 26 at § 2M5.1(a)(1)(A). 

Both the Department of Justice and the 

Disruptive Technology Strike Force 

recommend replacing the term 

‘‘national security controls’’ currently 

used at § 2M5.1(a)(1)(A) with the term 

‘‘controls related to national security,’’ 

to ensure that the provision includes 

‘‘the full spectrum’’ of national securitycontrols, including anti-terrorism, 

missile technology, regional stability, 

proliferation of chemical and biological 

weapons, nuclear nonproliferation, and 

military and weapons of mass 

destruction end-uses and end-users and 

entity-specific controls, and sanctions 

and embargoes. 

Part B of the proposed amendment 

would amend Appendix A and the 

Commentary to § 2M5.1 to reflect the 

new United States Code section 

numbers relating to export controls for 

national security and foreign policy. 

Additionally, Part B of the proposed 

amendment would amend 

§ 2M5.1(a)(1)(A) in response to the 

concerns raised by the Department of 

Justice and the Disruptive Technology 

Strike Force. It would replace the term 

‘‘national security controls’’ with 

‘‘controls relating to national security 

[(including controls on emerging and 

foundational technologies)].’’ 

Finally, Part B of the proposed 

amendment would make technical 

changes to the Commentary to § 2M5.1 

by reorganizing the application notes 

and adding headings. 

Two issues for comment are also 

provided. 

Proposed Amendment: Appendix A 

(Statutory Index) is amended in the line 

referenced to 50 U.S.C. 4610 by striking 

‘‘§ 4610’’ and inserting ‘‘§ 4819’’. 

Section 2M5.1(a)(1) is amended by 

striking ‘‘national security controls’’ and 

inserting ‘‘controls relating to national 

security [(including controls on 


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emerging and foundational 

technologies)]’’. 

The Commentary to § 2M5.1 

captioned ‘‘Statutory Provisions’’ is 

amended by striking ‘‘50 U.S.C. 1705; 50 

U.S.C. 4601–4623’’ and inserting ‘‘50 

U.S.C. 1705, 4819’’. 

The Commentary to § 2M5.1 

captioned ‘‘Application Notes’’ is 

amended— 

by striking Notes 1 through 4 as 

follows: 

‘‘1. In the case of a violation during 

time of war or armed conflict, an 

upward departure may be warranted. 

2. In determining the sentence within 

the applicable guideline range, the court 

may consider the degree to which the 

violation threatened a security interest 

of the United States, the volume of 

commerce involved, the extent of 

planning or sophistication, and whether 

there were multiple occurrences. Where 

such factors are present in an extreme 

form, a departure from the guidelines 

may be warranted. See Chapter Five, 

Part K (Departures). 

3. In addition to the provisions for 

imprisonment, 50 U.S.C. 4610 contains 

provisions for criminal fines and 

forfeiture as well as civil penalties. The 

maximum fine for individual 

defendants is $250,000. In the case of 

corporations, the maximum fine is five 

times the value of the exports involved 

or $1 million, whichever is greater. 

When national security controls are 

violated, in addition to any other 

sanction, the defendant is subject to 

forfeiture of any interest in, security of, 

or claim against: any goods or tangible 

items that were the subject of the 

violation; property used to export or 

attempt to export that was the subject of 

the violation; and any proceeds 

obtained directly or indirectly as a 

result of the violation. 

4. For purposes of subsection 

(a)(1)(B), ‘a country supporting 

international terrorism’ means a country 

designated under section 6(j) of the 

Export Administration Act (50 U.S.C. 

4605).’’; 

and by inserting the following new 

Notes 1, 2, and 3: 

‘‘1. Definition.—For purposes of 

subsection (a)(1)(B), ‘a country 

supporting international terrorism’ 

means a country designated under 

section 1754 of the Export Controls Act 

of 2018 (50 U.S.C. 4813). 

2. Additional Penalties.—In addition 

to the provisions for imprisonment, 50 

U.S.C. 4819 contains provisions for 

criminal fines and forfeiture as well as 

civil penalties. 

3. Departure Provisions.— 

(A) In General.—In determining the 

sentence within the applicable 

guideline range, the court may consider 

the degree to which the violation 

threatened a security interest of the 

United States, the volume of commerce 

involved, the extent of planning or 

sophistication, and whether there were 

multiple occurrences. Where such 

factors are present in an extreme form, 

a departure from the guidelines may be 

warranted. See Chapter Five, Part K 

(Departures). 

(B) War or Armed Conflict.—In the 

case of a violation during time of war or 

armed conflict, an upward departure 

may be warranted.’’. 

Issues for Comment: 

1. In response to the Export Control 

Reform Act of 2018, enacted as part of 

the John McCain National Defense 

Authorization Act for Fiscal Year 2019, 

Public Law 115–232 (Aug. 13, 2018), 

Part B of the proposed amendment 

would amend Appendix A (Statutory 

Index) and the Commentary to § 2M5.1 

(Evasion of Export Controls; Financial 

Transactions with Countries Supporting 

International Terrorism). The current 

provisions of § 2M5.1, including the 

term ‘‘national security controls’’ used 

in subsection (a)(1), are mostly based on 

the statutory provisions of the Export 

Administration Act of 1979. As 

explained in the synopsis above, the 

Export Control Reform Act of 2018 

repealed and replaced the 1979 Act and 

expanded the meaning of national 

security (to explicitly include the 

economic security of the United States 

as a component or element of national 

security), the types of items controlled 

(e.g., emerging and foundational 

technologies), and the reasons for 

control (e.g., persons and firms involved 

in activities contrary to national security 

or foreign policy interests). In addition, 

the agencies charged with administering 

and enforcing the Export Control 

Reform Act of 2018 are still making 

significant changes to what items are 

controlled and have increased the 

overall restrictions on export licensing. 

Accordingly, the Commission seeks 

general comment on whether any 

different or additional changes to the 

guidelines are required in response to 

the changes brought by the Export 

Control Reform Act of 2018. 

Specifically, should the Commission 

revise the base offense levels at 

§ 2M5.1(a)? If so, what revision should 

the Commission make and why? Should 

the Commission add additional specific 

offense characteristics to § 2M5.1? If so, 

what should any such specific offense 

characteristic provide and why? For 

example, should the Commission 

provide a definition of the term 

‘‘controls relating to national security’’? 

Should the Commission include in the 

provisions of § 2M5.1 specific references 

to controls relating to foreign policy or 

economic interest of the United States 

or to certain end-users and entities? 

2. Part B of the proposed amendment 

would also amend § 2M5.1 in response 

to the concerns raised by the 

Department of Justice and the 

Disruptive Technology Strike Force (an 

interagency collaboration between the 

Department of Justice’s National 

Security Division and the Department of 

Commerce’s Bureau of Industry and 

Security). The Commission invites 

general comment on the Department of 

Justice’s and Disruptive Technology 

Strike Force’s concerns discussed in the 

synopsis above. Are the changes to 

§ 2M5.1 appropriate to address those 

concerns? Should the Commission 

provide additional or different guidance 

for applying § 2M5.1? Is there an 

alternative approach that the 

Commission should consider in 

response to the concerns raised by the 

Department of Justice and the 

Disruptive Technology Strike Force? 

(C) Offenses Involving Records and 

Reports on Monetary Instruments 

Transactions 

Synopsis of Proposed Amendment: 

Part C of the proposed amendment 

responds to concerns raised by the 

Department of Justice relating to 

enhanced penalties under 31 U.S.C. 

5322 (Criminal penalties) and covered 

by § 2S1.3 (Structuring Transactions to 

Evade Reporting Requirements; Failure 

to Report Cash or Monetary 

Transactions; Failure to File Currency 

and Monetary Instrument Report; 

Knowingly Filing False Reports; Bulk 

Cash Smuggling; Establishing or 

Maintaining Prohibited Accounts). 

Section 5322 is a penalty provision 

for the substantive criminal offenses in 

subchapter II (Records and Reports on 

Monetary Instruments Transactions) of 

chapter 53 of title 31, United States 

Code. The provisions of this subchapter 

are the reporting requirements of the 

Bank Secrecy Act (BSA) and impose 

substantial compliance requirements on 

financial institutions. A simple 

violation of an offense in this 

subchapter is punishable by a five-year 

maximum term of imprisonment, a fine, 

or both under 31 U.S.C. 5322(a). 

However, if the offense also involved 

‘‘violating another law of the United 

States or as part of a pattern of any 

illegal activity involving more than 

$100,000 in a 12-month period,’’ the 

maximum term of imprisonment 

increases to ten years as provided for at 

31 U.S.C. 5322(b). Notably, other 

penalty provisions in subchapter II of 

chapter 53 of title 31, United States 


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Code, increase the maximum term of 

imprisonment if the offense involved 

‘‘violating another law of the United 

States or as part of a pattern of any 

illegal activity involving more than 

$100,000 in a 12-month period.’’ See 31 

U.S.C. 5324(d) and 5336(h). 

The majority of the substantive 

criminal offenses in subchapter II of 

chapter 53 of title 31, United States 

Code, including 31 U.S.C. 5322, 5324 

and 5336, are referenced in Appendix A 

(Statutory Index) to § 2S1.3. Relevant to 

this issue, § 2S1.3(b)(2) provides for a 2- 

level enhancement if ‘‘the defendant (A) 

was convicted of an offense under 

subchapter II of chapter 53 of title 31, 

United States Code; and (B) committed 

the offense as part of a pattern of 

unlawful activity involving more than 

$100,000 in a 12-month period.’’ USSG 

§ 2S1.3(b)(2). 

During the 2022–2023 amendment 

cycle, the Department of Justice, in its 

letter addressing a proposed crime 

legislation amendment, noted that when 

the Commission promulgated 

§ 2S1.3(b)(2) it did not include the 

additional factor set forth in 31 U.S.C. 

5322(b) that qualifies a defendant for the 

enhanced penalty, which is when an 

individual commits an offense under 

subchapter II of chapter 53 of title 31, 

United States Code, ‘‘while violating 

another law of the United States.’’ At 

the time, the Commission expressed 

interest in addressing this 

miscellaneous issue during the 2023– 

2024 amendment cycle. 

Part C of the proposed amendment 

would amend the specific offense 

characteristic at § 2S1.3(b)(2)(B) to 

reflect the additional enhanced penalty 

factor under 31 U.S.C. 5322(b), 5324(d), 

and 5336. Specifically, it would revise 

the 2-level enhancement at 

§ 2S1.3(b)(2)(B) to also apply if the 

defendant committed the offense ‘‘while 

violating another law of the United 

States.’’ 

Proposed Amendment: Section 

2S1.3(b)(2)(B) is amended by striking 

‘‘committed the offense as part of a 

pattern of unlawful activity’’ and 

inserting ‘‘committed the offense while 

violating another law of the United 

States or as part of a pattern of unlawful 

activity’’. 

(D) Antitrust Offenses 

Synopsis of Proposed Amendment: 

Part D of the proposed amendment 

responds to concerns raised by the 

Department of Justice relating to the 

statutes referenced in Appendix A 

(Statutory Index) to § 2R1.1 (BidRigging, Price-Fixing or MarketAllocation Agreements Among 

Competitors). 

Section 2R1.1 is intended to apply to 

antitrust offenses, particularly offenses 

relating to agreements among 

competitors, such as horizontal pricefixing (including bid-rigging) and 

horizontal market-allocation, ‘‘that are 

intended to, and serve no purpose other 

than to, restrict output and raise prices, 

and that are so plainly anticompetitive 

that they have been recognized as illegal 

per se, i.e., without any inquiry in 

individual cases as to their actual 

competitive effect.’’ USSG § 2R1.1, 

comment. (backg’d.). 

In the original 1987 Guidelines 

Manual, the only statute referenced in 

Appendix A to § 2R1.1 was 15 U.S.C. 1 

(Trusts, etc., in restraint of trade illegal; 

penalty), a provision of the Sherman 

Antitrust Act of 1890 that prohibits any 

contract or combination in the form of 

a trust or otherwise (or any such 

conspiracy) in restraint of trade or 

commerce among the several states or 

with foreign nations. In 1990, the 

Commission amended Appendix A to 

reference 18 U.S.C. 1860 (Bids at land 

sales) to § 2R1.1. See Appendix C, 

amendment 359 (effective Nov. 1, 1990). 

Section 1860 prohibits bargaining, 

contracting, or agreeing, or attempting to 

bargain, contract, or agree with another 

person that such person shall not bid 

upon or purchase any parcel of lands of 

the United States offered at public sale. 

It also prohibits using intimidation, 

combination, or unfair management, to 

hinder, prevent, or attempt to hinder or 

prevent, any person from bidding upon 

or purchasing any tract of land so 

offered for sale. 

In 2002, Congress amended 15 U.S.C. 

3 to create a new criminal offense. See 

Section 14102 of the Antitrust Technical 

Corrections Act of 2002, Public Law 

107–273 (Nov. 2, 2002). Prior to the 

Antitrust Technical Corrections Act of 

2002, 15 U.S.C. 3 contained only one 

provision prohibiting any contract or 

combination in the form of trust or 

otherwise (or any such conspiracy) in 

restraint of trade or commerce in any 

territory of the United States or the 

District of Columbia. The Act 

redesignated the existing provision as 

subsection (a) and added a new criminal 

offense at a new subsection (b). Section 

3(b) prohibits monopolization, attempts 

to monopolize, and combining or 

conspiring with another person to 

monopolize any part of the trade or 

commerce in or involving any territory 

of the United States or the District of 

Columbia. 15 U.S.C. 3(b). 

In 2003, the Commission amended 

Appendix A to reference 15 U.S.C. 3(b) 

to § 2R1.1 and the Commentary to 

§ 2R1.1 to reflect such reference. See 

Appendix C, amendment 661 (effective 

Nov. 1, 2003). The Commission did not 

include a reference in Appendix A to 

the then newly redesignated 15 U.S.C. 

3(a). Section 3(a) is not currently 

referenced in Appendix A to any 

guideline. 

The Department of Justice has raised 

a concern that Appendix A and § 2R1.1 

contain inaccurate references to 15 

U.S.C. 3(b). According to the 

Department of Justice, both Appendix A 

and the Commentary to § 2R1.1 lists 15 

U.S.C. 3(b) as a statutory provision 

covered by § 2R1.1 when, in fact, the 

guideline should instead cover 15 

U.S.C. 3(a). The Department of Justice 

indicates that, other than 15 U.S.C. 3(b), 

the statutes currently referenced in 

Appendix A to § 2R1.1 cover offenses 

relating to agreements or combinations 

in restraint of trade or commerce. 

Section 3(b) offenses address conduct 

relating to the acquisition or 

maintenance of monopoly power in a 

relevant market, which may be 

committed by a single entity and does 

not depend on agreement among 

competitors. According to the 

Department of Justice, these types of 

monopolization offenses are beyond the 

scope of § 2R1.1, as described in the 

Background Commentary, thus 

maintaining the Appendix A reference 

to the guideline has the potential to sow 

confusion in antitrust prosecutions. The 

Department of Justice suggests that the 

Commission replace the reference to 15 

U.S.C. 3(b) in Appendix A and § 2R1.1 

with a reference to 15 U.S.C. 3(a), which 

is the provision in section 3 that 

addresses offenses relating to 

agreements in restraint of trade or 

commerce and is more similar to the 

other offenses already covered by 

§ 2R1.1. 

Part D of the proposed amendment 

would amendment Appendix A and the 

Commentary to § 2R1.1 to replace the 

reference to 15 U.S.C. 3(b) with a 

reference to 15 U.S.C. 3(a). In addition, 

it would make technical changes to the 

Commentary to § 2R1.1, including the 

addition of headings to some 

application notes. 

Proposed Amendment: Appendix A 

(Statutory Index) is amended in the line 

referenced to 15 U.S.C. 3(b) by striking 

‘‘§ 3(b)’’ and inserting ‘‘§ 3(a)’’. 

The Commentary to § 2R1.1 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘§§ 1, 3(b)’’ and inserting ‘‘§§ 1, 

3(a)’’. 

The Commentary to § 2R1.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 3 by inserting at the beginning 

the following new heading: ‘‘Fines for 

Organizations.—’’; 


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in Note 4 by inserting at the beginning 

the following new heading: ‘‘Another 

Consideration in Setting Fine.—’’; 

in Note 5 by inserting at the beginning 

the following new heading: ‘‘Use of 

Alternatives Other Than 

Imprisonment.—’’; 

in Note 6 by inserting at the beginning 

the following new heading: 

‘‘Understatement of Seriousness.—’’; 

and in Note 7 by inserting at the 

beginning the following new heading: 

‘‘Defendant with Previous Antitrust 

Convictions.—’’. 

The Commentary to § 2R1.1 captioned 

‘‘Background’’ is amended by striking 

‘‘These guidelines apply’’ and inserting 

‘‘This guideline applies’’. 

(E) Enhanced Penalties for Drug 

Offenders 

Synopsis of Proposed Amendment: 

Part E of the proposed amendment 

addresses a miscellaneous issue 

regarding the application of the 

enhanced base offense levels at 

subsections (a)(1)–(a)(4) of § 2D1.1 

(Unlawful Manufacturing, Importing, 

Exporting, or Trafficking (Including 

Possession with Intent to Commit These 

Offenses); Attempt or Conspiracy). 

The most common drug offenses that 

carry mandatory minimum penalties are 

set forth in 21 U.S.C. 841 and 960. 

Under both provisions, the mandatory 

minimum penalties are tied to the 

quantity and type of controlled 

substance involved in an offense. 

Enhanced mandatory minimum 

penalties are set forth in 21 U.S.C. 

841(b) and 960(b) for defendants whose 

instant offense resulted in death or 

serious bodily injury, or who have prior 

convictions for certain specified 

offenses. Greater enhanced mandatory 

minimum penalties are provided for 

those defendants whose instant offense 

resulted in death or serious bodily 

injury and who have a qualifying prior 

conviction. 

Section 2D1.1 provides specific base 

offense levels to reflect this enhanced 

penalty structure at § 2D1.1(a)(1)–(a)(4). 

Section 2D1.1(a)(1)(A) provides for a 

base offense level of 43 if ‘‘the 

defendant is convicted under 21 U.S.C. 

841(b)(1)(A) or (b)(1)(B), or 21 U.S.C. 

960(b)(1) or (b)(2), and the offense of 

conviction establishes that death or 

serious bodily injury resulted from the 

use of the substance and that the 

defendant committed the offense after 

one or more prior convictions for a 

serious drug felony or serious violent 

felony.’’ Similarly, § 2D1.1(a)(1)(B) 

provides for a base offense level of 43 

if ‘‘the defendant is convicted under 21 

U.S.C. 841(b)(1)(C) or 21 U.S.C. 

960(b)(3) and the offense of conviction 

establishes that death or serious bodily 

injury resulted from the use of the 

substance and that the defendant 

committed the offense after one or more 

prior convictions for a felony drug 

offense.’’ Each of the six statutory 

provisions enumerated within 

§ 2D1.1(a)(1)(A) and (B) require a 

mandatory term of life imprisonment for 

any defendant who has a qualifying 

prior offense and whose instant offense 

involved a substance that resulted in 

death or serious bodily injury. 

Section 2D1.1(a)(2) provides for a base 

offense level of 38 ‘‘if the defendant is 

convicted under 21 U.S.C. 841(b)(1)(A), 

(b)(1)(B), or (b)(1)(C), or 21 U.S.C. 

960(b)(1), (b)(2), or (b)(3), and the 

offense of conviction establishes that 

death or serious bodily injury resulted 

from the use of the substance.’’ Each of 

the six statutory provisions enumerated 

within § 2D1.1(a)(2) provides for a 

mandatory minimum term of 

imprisonment of not less than 20 years 

for a defendant whose instant offense 

involved a substance that resulted in 

death or serious bodily injury. 

Section 2D1.1(a)(3) provides for a base 

offense level of 30 if ‘‘the defendant is 

convicted under 21 U.S.C. 841(b)(1)(E) 

or 21 U.S.C. 960(b)(5), and the offense 

of conviction establishes that death or 

serious bodily injury resulted from the 

use of the substance and that the 

defendant committed the offense after 

one or more prior convictions for a 

felony drug offense.’’ Both statutory 

provisions enumerated within 

§ 2D1.1(a)(3) provide for an increased 

statutory maximum term of 

imprisonment of 30 years for any 

defendant who has a qualifying prior 

offense and whose instant offense 

involved a substance that resulted in 

death or serious bodily injury. 

Section 2D1.1(a)(4) provides for a base 

offense level of 26 if ‘‘if the defendant 

is convicted under 21 U.S.C. 

841(b)(1)(E) or 21 U.S.C. 960(b)(5), and 

the offense of conviction establishes that 

death or serious bodily injury resulted 

from the use of the substance.’’ Both 

statutory provisions enumerated within 

§ 2D1.1(a)(4) provide for an increased 

statutory maximum term of 

imprisonment of 15 years for any 

defendant whose instant offense 

involved a substance that resulted in 

death or serious bodily injury. 

The Commission has heard concerns 

that it is not clear whether the enhanced 

base offense levels at § 2D1.1(a)(1)–(a)(4) 

apply only when the defendant was 

convicted under the enhanced penalty 

provision of 21 U.S.C. 841 or 21 U.S.C. 

960 because each statutory element was 

established, or whether they also apply 

whenever a defendant meets the 

applicable requirements, regardless of 

whether the defendant was in fact 

convicted under the enhanced penalty 

provision. 

Part E of the proposed amendment 

would amend § 2D1.1(a)(1)–(4) to 

address these concerns. Two options are 

provided. 

Option 1 would amend § 2D1.1(a)(1)– 

(4) to provide that the base offense 

levels in those provisions apply only if 

the defendant was convicted under 21 

U.S.C. 841 or 21 U.S.C. 960, and was 

subject to a statutorily enhanced 

sentence under title 21, United States 

Code, for the offense of conviction 

because the specific statutory elements 

were established in accordance with the 

relevant provision in title 21, United 

States Code. 

Option 2 would amend § 2D1.1(a)(1)– 

(4) so that the base offense levels in 

those provisions apply if the defendant 

was convicted under 21 U.S.C. 841 or 21 

U.S.C. 960 and the offense involved the 

applicable requirements. However, 

§ 2D1.1(a)(1) and (a)(3) would require 

that the fact that the offense was 

committed after one or more prior 

convictions for a serious drug felony, 

serious violent felony, or felony drug 

offense be established by the 

information filed by the government 

pursuant to 21 U.S.C. 851. 

Proposed Amendment: 

[Option 1: 

Section 2D1.1(a) is amended by 

striking paragraphs (1) through (4) as 

follows: 

‘‘(1) 43, if— 

(A) the defendant is convicted under 

21 U.S.C. 841(b)(1)(A) or (b)(1)(B), or 21 

U.S.C. 960(b)(1) or (b)(2), and the 

offense of conviction establishes that 

death or serious bodily injury resulted 

from the use of the substance and that 

the defendant committed the offense 

after one or more prior convictions for 

a serious drug felony or serious violent 

felony; or 

(B) the defendant is convicted under 

21 U.S.C. 841(b)(1)(C) or 21 U.S.C. 

960(b)(3) and the offense of conviction 

establishes that death or serious bodily 

injury resulted from the use of the 

substance and that the defendant 

committed the offense after one or more 

prior convictions for a felony drug 

offense; or 

(2) 38, if the defendant is convicted 

under 21 U.S.C. 841(b)(1)(A), (b)(1)(B), 

or (b)(1)(C), or 21 U.S.C. 960(b)(1), 

(b)(2), or (b)(3), and the offense of 

conviction establishes that death or 

serious bodily injury resulted from the 

use of the substance; or 

(3) 30, if the defendant is convicted 

under 21 U.S.C. 841(b)(1)(E) or 21 

U.S.C. 960(b)(5), and the offense of 


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conviction establishes that death or 

serious bodily injury resulted from the 

use of the substance and that the 

defendant committed the offense after 

one or more prior convictions for a 

felony drug offense; or 

(4) 26, if the defendant is convicted 

under 21 U.S.C. 841(b)(1)(E) or 21 

U.S.C. 960(b)(5), and the offense of 

conviction establishes that death or 

serious bodily injury resulted from the 

use of the substance; or’’; 

and by inserting the following new 

paragraphs (1) through (4): 

‘‘(1) 43, if— 

(A) the defendant (i) is convicted 

under 21 U.S.C. 841(b)(1)(A) or (b)(1)(B), 

or 21 U.S.C. 960(b)(1) or (b)(2); and (ii) 

is subject to a statutorily enhanced 

sentence under title 21, United States 

Code, for the offense of conviction 

because (I) death or serious bodily 

injury resulted from the use of the 

substance; and (II) the defendant 

committed the offense after one or more 

prior convictions for a serious drug 

felony or serious violent felony, as 

established by the information filed by 

the government pursuant to 21 U.S.C. 

851; or 

(B) the defendant (i) is convicted 

under 21 U.S.C. 841(b)(1)(C) or 21 

U.S.C. 960(b)(3); and (ii) is subject to a 

statutorily enhanced sentence under 

title 21, United States Code, for the 

offense of conviction because (I) death 

or serious bodily injury resulted from 

the use of the substance; and (II) the 

defendant committed the offense after 

one or more prior convictions for a 

felony drug offense, as established by 

the information filed by the government 

pursuant to 21 U.S.C. 851; or 

(2) 38, if the defendant (A) is 

convicted under 21 U.S.C. 841(b)(1)(A), 

(b)(1)(B), or (b)(1)(C), or 21 U.S.C. 

960(b)(1), (b)(2), or (b)(3); and (B) is 

subject to a statutorily enhanced 

sentence under title 21, United States 

Code, for the offense of conviction 

because death or serious bodily injury 

resulted from the use of the substance; 

or 

(3) 30, if the defendant (A) is 

convicted under 21 U.S.C. 841(b)(1)(E) 

or 21 U.S.C. 960(b)(5); and (B) is subject 

to a statutorily enhanced sentence under 

title 21, United States Code, for the 

offense of conviction because (i) death 

or serious bodily injury resulted from 

the use of the substance; and (ii) the 

defendant committed the offense after 

one or more prior convictions for a 

felony drug offense, as established by 

the information filed by the government 

pursuant to 21 U.S.C. 851; or 

(4) 26, if the defendant (A) is 

convicted under 21 U.S.C. 841(b)(1)(E) 

or 21 U.S.C. 960(b)(5); and (B) is subject 

to a statutorily enhanced sentence under 

title 21, United States Code, for the 

offense of conviction because death or 

serious bodily injury resulted from the 

use of the substance; or’’.] 

[Option 2: 

Section 2D1.1(a) is amended by 

striking paragraphs (1) through (4) as 

follows: 

‘‘(1) 43, if— 

(A) the defendant is convicted under 

21 U.S.C. 841(b)(1)(A) or (b)(1)(B), or 21 

U.S.C. 960(b)(1) or (b)(2), and the 

offense of conviction establishes that 

death or serious bodily injury resulted 

from the use of the substance and that 

the defendant committed the offense 

after one or more prior convictions for 

a serious drug felony or serious violent 

felony; or 

(B) the defendant is convicted under 

21 U.S.C. 841(b)(1)(C) or 21 U.S.C. 

960(b)(3) and the offense of conviction 

establishes that death or serious bodily 

injury resulted from the use of the 

substance and that the defendant 

committed the offense after one or more 

prior convictions for a felony drug 

offense; or 

(2) 38, if the defendant is convicted 

under 21 U.S.C. 841(b)(1)(A), (b)(1)(B), 

or (b)(1)(C), or 21 U.S.C. 960(b)(1), 

(b)(2), or (b)(3), and the offense of 

conviction establishes that death or 

serious bodily injury resulted from the 

use of the substance; or 

(3) 30, if the defendant is convicted 

under 21 U.S.C. 841(b)(1)(E) or 21 

U.S.C. 960(b)(5), and the offense of 

conviction establishes that death or 

serious bodily injury resulted from the 

use of the substance and that the 

defendant committed the offense after 

one or more prior convictions for a 

felony drug offense; or 

(4) 26, if the defendant is convicted 

under 21 U.S.C. 841(b)(1)(E) or 21 

U.S.C. 960(b)(5), and the offense of 

conviction establishes that death or 

serious bodily injury resulted from the 

use of the substance; or’’; 

and by inserting the following new 

paragraphs (1) through (4): 

‘‘(1) 43, if— 

(A) (i) the defendant is convicted 

under 21 U.S.C. 841(b)(1)(A) or (b)(1)(B), 

or 21 U.S.C. 960(b)(1) or (b)(2); (ii) the 

offense involved death or serious bodily 

injury resulting from the use of the 

substance; and (iii) the defendant 

committed the offense after one or more 

prior convictions for a serious drug 

felony or serious violent felony, as 

established by the information filed by 

the government pursuant to 21 U.S.C. 

851; or 

(B) (i) the defendant is convicted 

under 21 U.S.C. 841(b)(1)(C) or 21 

U.S.C. 960(b)(3); (ii) the offense 

involved death or serious bodily injury 

resulting from the use of the substance; 

and (iii) the defendant committed the 

offense after one or more prior 

convictions for a felony drug offense, as 

established by the information filed by 

the government pursuant to 21 U.S.C. 

851; or 

(2) 38, if (A) the defendant is 

convicted under 21 U.S.C. 841(b)(1)(A), 

(b)(1)(B), or (b)(1)(C), or 21 U.S.C. 

960(b)(1), (b)(2), or (b)(3); and (B) the 

offense involved death or serious bodily 

injury resulting from the use of the 

substance; or 

(3) 30, if (A) the defendant is 

convicted under 21 U.S.C. 841(b)(1)(E) 

or 21 U.S.C. 960(b)(5); (B) the offense 

involved death or serious bodily injury 

resulting from the use of the substance; 

and (C) the defendant committed the 

offense after one or more prior 

convictions for a felony drug offense, as 

established by the information filed by 

the government pursuant to 21 U.S.C. 

851; or 

(4) 26, if (A) the defendant is 

convicted under 21 U.S.C. 841(b)(1)(E) 

or 21 U.S.C. 960(b)(5); and (B) the 

offense involved death or serious bodily 

injury resulting from the use of the 

substance; or’’.] 

(F) ‘‘Sex Offense’’ Definition in § 4C1.1 

Synopsis of Proposed Amendment: 

Part F of the proposed amendment 

responds to concerns raised by the 

Department of Justice relating to the 

scope of the definition of ‘‘sex offense’’ 

in subsection (b)(2) of § 4C1.1 

(Adjustment for Certain Zero-Point 

Offenders). 

In 2023, the Commission added a new 

Chapter Four guideline, at § 4C1.1 

(Adjustment for Certain Zero-Point 

Offenders), providing a decrease of 2 

levels from the offense level determined 

under Chapters Two and Three for 

‘‘zero-point’’ offenders who meet certain 

criteria. See USSG App. C, amendment 

821 (effective Nov. 1, 2023). The 2-level 

adjustment for defendants with zero 

criminal history points at § 4C1.1 

applies only if none of the exclusionary 

criteria set forth in subsections (a)(1) 

through (a)(10) apply. Among the 

exclusionary criteria is subsection (a)(5), 

requiring that ‘‘the [defendant’s] instant 

offense of conviction is not a sex 

offense.’’ Section 4C1.1(b)(2) defines 

‘‘sex offense’’ as ‘‘(A) an offense, 

perpetrated against a minor, under (i) 

chapter 109A of title 18, United States 

Code; (ii) chapter 110 of title 18, not 

including a recordkeeping offense; (iii) 

chapter 117 of title 18, not including 

transmitting information about a minor 

or filing a factual statement about an 

alien individual; or (iv) 18 U.S.C. 1591; 


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89162 Federal Register / Vol. 88, No. 246 / Tuesday, December 26, 2023 / Notices 

or (B) an attempt or a conspiracy to 

commit any offense described in 

subparagraphs (A)(i) through (iv) of this 

definition.’’ 

The Department of Justice has raised 

a concern that the current definition of 

‘‘sex offense’’ is too restrictive because 

it applies only to offenses perpetrated 

against minors. The Department of 

Justice first raised this issue during the 

2022–2023 amendment cycle. In its 

letter addressing the proposed 

amendment on sexual abuse offenses, 

the Department of Justice noted that the 

restrictive definition of ‘‘sex offense’’ in 

the then-proposed § 4C1.1 would run 

counter to the Commission’s thenproposed amendment to increase the 

base offense level from level 14 to level 

18 at § 2A3.3 (Criminal Sexual Abuse of 

a Ward or Attempt to Commit Such 

Acts; Criminal Sexual Abuse of an 

Individual in Federal Custody). 

Part F of the proposed amendment 

would amend § 4C1.2(b)(2) to broaden 

the definition of ‘‘sex offense.’’ Two 

options are provided. 

Option 1 would revise the current 

definition of ‘‘sex offense’’ at 

§ 4C1.1(b)(2) to also cover sexual abuse 

offenses against wards and individuals 

in federal custody under 18 U.S.C. 

2243(b) and (c). 

Option 2 would expand the definition 

of ‘‘sex offense’’ at § 4C1.1(b)(2) to cover 

all offenses described in the listed 

provisions instead of only to offenses 

perpetrated against minors. 

Proposed Amendment: 

[Option 1: 

Section 4C1.1(b)(2) is amended by 

striking ‘‘ ‘Sex offense’ means (A) an 

offense, perpetrated against a minor, 

under (i) chapter 109A of title 18, 

United States Code; (ii) chapter 110 of 

title 18, not including a recordkeeping 

offense; (iii) chapter 117 of title 18, not 

including transmitting information 

about a minor or filing a factual 

statement about an alien individual; or 

(iv) 18 U.S.C. 1591; or (B) an attempt or 

a conspiracy to commit any offense 

described in subparagraphs (A)(i) 

through (iv) of this definition’’; and 

inserting: ‘‘ ‘Sex offense’ means (A) an 

offense under 18 U.S.C. 2243(b) or (c); 

(B) an offense, perpetrated against a 

minor, under (i) chapter 109A of title 

18, United States Code; (ii) chapter 110 

of title 18, not including a 

recordkeeping offense; (iii) chapter 117 

of title 18, not including transmitting 

information about a minor or filing a 

factual statement about an alien 

individual; or (iv) 18 U.S.C. 1591; or (C) 

an attempt or a conspiracy to commit 

any offense described in subparagraphs 

(A) and (B) of this definition’’.] 

[Option 2: 

Section 4C1.1(b)(2) is amended by 

striking ‘‘ ‘Sex offense’ means (A) an 

offense, perpetrated against a minor, 

under’’; and inserting ‘‘ ‘Sex offense’ 

means (A) an offense under’’.] 

6. Technical 

Synopsis of Proposed Amendment: 

This proposed amendment would make 

technical and other non-substantive 

changes to the Guidelines Manual. The 

proposed amendment contains two 

parts (Part A and Part B). The 

Commission is considering whether to 

promulgate either or both parts, as they 

are not mutually exclusive. 

Technical and Conforming Changes 

Relating to § 4C1.1 

In 2023, the Commission added a new 

Chapter Four guideline, at § 4C1.1 

(Adjustment for Certain Zero-Point 

Offenders), providing a decrease of 2 

levels from the offense level determined 

under Chapters Two and Three for 

‘‘zero-point’’ offenders who meet certain 

criteria. See USSG App. C, amendment 

821 (effective Nov. 1, 2023). Part A of 

the proposed amendment would make 

technical and conforming changes 

relating to § 4C1.1. 

First, Part A of the proposed 

amendment would amend § 4C1.1. The 

2-level adjustment for defendants with 

zero criminal history points at § 4C1.1 

applies only if none of exclusionary 

criteria set forth in subsections (a)(1) 

through (a)(10) applies. Among the 

exclusionary criteria is subsection 

(a)(10), requiring that ‘‘the defendant 

did not receive an adjustment under 

§ 3B1.1 (Aggravating Role) and was not 

engaged in a continuing criminal 

enterprise, as defined in 21 U.S.C. 848.’’ 

Several provisions in § 4C1.1 track 

similar language found in the safety 

valve criteria at 18 U.S.C. 3553(f). In 

particular, § 4C1.1(a)(10) mirrors 18 

U.S.C. 3553(f)(4), which provides as a 

requirement that ‘‘the defendant was not 

an organizer, leader, manager, or 

supervisor of others in the offense, as 

determined under the sentencing 

guidelines and was not engaged in a 

continuing criminal enterprise, as 

defined in section 408 of the Controlled 

Substances Act.’’ 

Historically, courts have generally 

interpreted 18 U.S.C. 3553(f)(4) as 

excluding a defendant from safety valve 

eligibility if such defendant had either 

an aggravating role or were engaged in 

a continuing criminal enterprise, given 

the otherwise exclusionary language 

beginning each phrase of subsection 

(f)(4) (i.e., ‘‘the defendant was not . . .’’ 

and ‘‘. . . was not engaged in’’). The 

Sixth and the Seventh Circuits have 

squarely addressed this issue and held 

that defendants are ineligible for safety 

valve relief if they either have an 

aggravating role or engaged in a 

continuing criminal enterprise, but that 

it is not required to demonstrate both. 

See, e.g., United States v. Bazel, 80 F.3d 

1140, 1143 (6th Cir. 1996); United States 

v. Draheim, 958 F.3d 651, 660 (7th Cir. 

2020). 

The Commission intended 

§ 4C1.1(b)(10) to track the safety valve 

criteria at 18 U.S.C. 3553(f)(4) and be 

applied by courts in the same way— 

namely, that a defendant is ineligible for 

the adjustment if the defendant meets 

either of the disqualifying conditions in 

the provision. Nevertheless, since 

promulgation of new § 4C1.1, several 

stakeholders have raised the question of 

whether the ‘‘and’’ in the subsection 

(a)(10) is conjunctive or disjunctive. 

To address the confusion caused by 

the use of the word ‘‘and’’ in that 

provision, Part A of the proposed 

amendment would make technical 

changes to § 4C1.1 to divide subsection 

(a)(10) into two separate provisions, 

clarifying the Commission’s intention 

that a defendant is ineligible for the 

adjustment if the defendant meets either 

of the disqualifying conditions listed in 

the provision. 

Finally, Part A of the proposed 

amendment would make conforming 

changes relating to § 4C1.1 by adding 

necessary references to new Chapter 

Four, Part C (Adjustment for Certain 

Zero-Point Offenders) in subsection 

(a)(6) of § 1B1.1 (Application 

Instructions), the Introductory 

Commentary to Chapter Two (Offense 

Conduct), and the Commentary to 

§§ 3D1.1 (Procedure for Determining 

Offense Level on Multiple Counts) and 

3D1.5 (Determining the Total 

Punishment). These guidelines and 

commentaries refer to the order in 

which the chapters of the Guidelines 

Manual should be applied. 

Additional Technical and Clerical 

Changes 

Part B of the proposed amendment 

would make technical and clerical 

changes to— 

(1) the Commentary to § 1B1.1 

(Application Instructions), to add 

headings to some application notes, 

provide stylistic consistency in how 

subdivisions are designated, and correct 

a typographical error; 

(2) § 2B1.1 (Theft, Property 

Destruction, and Fraud), to provide 

consistency in the use of capitalization 

and how subdivisions are designated, 

and to correct a reference to the term 

‘‘equity security’’; 

(3) the Commentary to § 2B1.6 

(Aggravated Identity Theft), to correct 


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some typographical errors and provide 

stylistic consistency in how 

subdivisions are designated; 

(4) § 2B3.1 (Robbery), to provide 

stylistic consistency in how 

subdivisions are designated and add 

headings to the application notes in the 

Commentary; 

(5) § 2B3.2 (Extortion by Force or 

Threat of Injury or Serious Damage), to 

provide stylistic consistency in how 

subdivisions are designated and add 

headings to some application notes in 

the Commentary; 

(6) § 2C1.8 (Making, Receiving, or 

Failing to Report a Contribution, 

Donation, or Expenditure in Violation of 

the Federal Election Campaign Act; 

Fraudulently Misrepresenting Campaign 

Authority; Soliciting or Receiving a 

Donation in Connection with an 

Election While on Certain Federal 

Property), to provide consistency in the 

use of capitalization; 

(7) § 2D1.1 (Unlawful Manufacturing, 

Importing, Exporting, or Trafficking 

(Including Possession with Intent to 

Commit These Offenses)), to provide 

stylistic consistency in how 

subdivisions are designated, make 

clerical changes to some controlled 

substances references in the Drug 

Conversion Tables at Application Note 

8(D) and the Typical Weight Per Unit 

Table at Application Note 9, and correct 

a reference to a statute in the 

Background commentary; 

(8) the Background Commentary to 

§ 2D1.2 (Drug Offenses Occurring Near 

Protected Locations or Involving 

Underage or Pregnant Individuals; 

Attempt or Conspiracy), to correct a 

reference to a statute; 

(9) the Commentary to § 2D1.5 

(Continuing Criminal Enterprise; 

Attempt or Conspiracy), to add headings 

to application notes and correct a 

reference to a statutory provision; 

(10) § 2E2.1 (Making or Financing an 

Extortionate Extension of Credit; 

Collecting an Extension of Credit by 

Extortionate Means), to provide stylistic 

consistency in how subdivisions are 

designated and add headings to the 

application notes in the Commentary; 

(11) § 2E3.1 (Gambling Offenses; 

Animal Fighting Offenses), to provide 

stylistic consistency in how 

subdivisions are designated and correct 

a reference to a statutory provision in 

the Commentary; 

(12) § 2H2.1 (Obstructing an Election 

or Registration), to provide stylistic 

consistency in how subdivisions are 

designated and add a heading to the 

application note in the Commentary; 

(13) § 2K1.4 (Arson; Property Damage 

by Use of Explosives), to provide 

stylistic consistency in how 

subdivisions are designated; 

(14) the Commentary to § 2K2.4 (Use 

of Firearm, Armor-Piercing 

Ammunition, or Explosive During or in 

Relation to Certain Crimes), to correct 

some typographical errors; 

(15) the Commentary to § 2S1.1 

(Laundering of Monetary Instruments; 

Engaging in Monetary Transactions in 

Property Derived from Unlawful 

Activity), to provide consistency in the 

use of capitalization and how 

subdivisions are designated; 

(16) § 3B1.1 (Aggravating Role), to 

provide stylistic consistency in how 

subdivisions are designated, add 

headings to the application notes in the 

Commentary, and correct a 

typographical error; 

(17) the Commentary to § 3D1.1 

(Procedure for Determining Offense 

Level on Multiple Counts), to add a 

heading to an application note; 

(18) § 4A1.1 (Criminal History 

Category), to provide stylistic 

consistency in how subdivisions are 

designated and correct the headings of 

the application notes in the 

Commentary; 

(19) § 4A1.2 (Definitions and 

Instructions for Computing Criminal 

History), to provide stylistic consistency 

in how subdivisions are designated; 

(20) the Commentary to § 5G1.2 

(Sentencing on Multiple Counts of 

Conviction), to provide stylistic 

consistency in how subdivisions are 

designated, fix typographical errors in 

the Commentary, and update an 

example that references 18 U.S.C. 924(c) 

(which was amended by the First Step 

Act of 2018, Pub. L. 115–391 (2018)); 

(21) the Commentary to § 5K1.1 

(Substantial Assistance to Authorities 

(Policy Statement)), to add headings to 

application notes and correct a 

typographical error; 

(22) § 5K2.0 (Grounds for Departure 

(Policy Statement)), to correct a 

typographical error and provide stylistic 

consistency in how subdivisions are 

designated; 

(23) § 5E1.2 (Fines for Individual 

Defendants), to provide stylistic 

consistency in how subdivisions are 

designated; 

(24) § 5F1.6 (Denial of Federal 

Benefits to Drug Traffickers and 

Possessors), to provide consistency in 

the use of capitalization and add a 

heading to an application note in the 

Commentary; 

(25) § 6A1.5 (Crime Victims’ Rights 

(Policy Statement)), to provide 

consistency in the use of capitalization; 

and 

(26) the Commentary to § 8B2.1 

(Effective Compliance and Ethics 

Program), to provide consistency in the 

use of capitalization. 

(A) Technical and Conforming Changes 

Relating to § 4C1.1 

Proposed Amendment: Section 

4C1.1(a) is amended— 

in paragraph (9) by striking ‘‘and’’; 

by striking paragraph (10) as follows: 

‘‘(10) the defendant did not receive an 

adjustment under § 3B1.1 (Aggravating 

Role) and was not engaged in a 

continuing criminal enterprise, as 

defined in 21 U.S.C. 848;’’; 

and by inserting at the end the 

following new paragraphs (10) and (11): 

‘‘(10) the defendant did not receive an 

adjustment under § 3B1.1 (Aggravating 

Role); and 

(11) the defendant was not engaged in 

a continuing criminal enterprise, as 

defined in 21 U.S.C. 848;’’. 

Section 1B1.1(a)(6) is amended by 

striking ‘‘Part B of Chapter Four’’ and 

inserting ‘‘Parts B and C of Chapter 

Four’’. 

Chapter Two is amended in the 

Introductory Commentary by striking 

‘‘Chapter Four, Part B (Career Offenders 

and Criminal Livelihood)’’ and inserting 

‘‘Chapter Four, Parts B (Career 

Offenders and Criminal Livelihood) and 

C (Adjustment for Certain Zero-Point 

Offenders)’’. 

The Commentary to § 3D1.1 captioned 

‘‘Background’’ is amended by striking 

‘‘Chapter Four, Part B (Career Offenders 

and Criminal Livelihood)’’ and inserting 

‘‘Chapter Four, Parts B (Career 

Offenders and Criminal Livelihood) and 

C (Adjustment for Certain Zero-Point 

Offenders)’’. 

The Commentary to § 3D1.5 is 

amended by striking ‘‘Chapter Four, Part 

B (Career Offenders and Criminal 

Livelihood)’’ and inserting ‘‘Chapter 

Four, Parts B (Career Offenders and 

Criminal Livelihood) and C (Adjustment 

for Certain Zero-Point Offenders)’’. 

(B) Additional Technical and Clerical 

Changes 

Proposed Amendment: The 

Commentary to § 1B1.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 1 by inserting at the beginning 

the following new heading: ‘‘Frequently 

Used Terms Defined.—’’; 

in Note 1(F) by striking ‘‘subdivision’’ 

and inserting ‘‘clause’’; 

in Note 2 by inserting at the beginning 

the following new heading: ‘‘Definition 

of Additional Terms.—’’; and by striking 

‘‘case by case basis’’ and inserting ‘‘caseby-case basis’’; 

in Note 3 by inserting at the beginning 

the following new heading: ‘‘List of 

Statutory Provisions.—’’; 

in Note 4 by inserting at the beginning 

the following new heading: 


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‘‘Cumulative Application of Multiple 

Adjustments.—’’; 

in Note 4(A) by striking 

‘‘subdivisions’’ and inserting 

‘‘subparagraphs’’; 

and in Note 5 by inserting at the 

beginning the following new heading: 

‘‘Two or More Guideline Provisions 

Equally Applicable.—’’. 

Section 2B1.1(b)(7) is amended by 

striking ‘‘Federal’’ and inserting 

‘‘federal’’; and by striking 

‘‘Government’’ both places such term 

appears and inserting ‘‘government’’. 

Section 2B1.1(b)(17) is amended by 

striking ‘‘subdivision’’ both places such 

term appears and inserting 

‘‘subparagraph’’. 

Section 2B1.1(b)(19)(B) is amended by 

striking ‘‘subdivision’’ and inserting 

‘‘subparagraph’’. 

Section 2B1.1(c) is amended by 

striking ‘‘subdivision’’ and inserting 

‘‘paragraph’’. 

The Commentary to 2B1.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 1 by striking ’’ ‘Equity 

securities’ ’’ and inserting ‘‘ ‘Equity 

security’ ’’; 

in Note 3(A) by striking ‘‘subdivision’’ 

and inserting ‘‘subparagraph’’; 

in Note 3(A)(v) by striking 

‘‘subdivisions’’ and inserting 

‘‘subclauses’’; 

in Note 3(F) by striking ‘‘subdivision 

(A)’’ and inserting ‘‘subparagraph (A)’’; 

in Note 3(F)(i) by striking ‘‘this 

subdivision’’ and inserting ‘‘this 

clause’’; 

in Note 3(F)(viii) by striking ‘‘a 

Federal health care offense’’ and 

inserting ‘‘a federal health care offense’’; 

and by striking ‘‘Government health 

care program’’ both places such term 

appears and inserting ‘‘government 

health care program’’; 

and in Note 4(C)(ii) by striking 

‘‘subdivision’’ and inserting 

‘‘subparagraph’’. 

The Commentary to § 2B6.1 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by striking ‘‘United State Code’’ 

both places such term appears and 

inserting ‘‘United States Code’’; and by 

striking ‘‘subdivision’’ and inserting 

‘‘subparagraph’’. 

Section 2B3.1(b)(3) is amended by 

striking ‘‘subdivisions’’ both places such 

term appears and inserting 

‘‘subparagraphs’’; and by striking 

‘‘cumulative adjustments from (2) and 

(3)’’ and inserting ‘‘cumulative 

adjustments from application of 

paragraphs (2) and (3)’’. 

The Commentary to § 2B3.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 1 by inserting at the beginning 

the following new heading: 

‘‘Definitions.—’’; 

in Note 2 by inserting at the beginning 

the following new heading: ‘‘Dangerous 

Weapon.—’’; 

in Note 3 by inserting at the beginning 

the following new heading: ‘‘Definition 

of ‘Loss’.—’’; 

in Note 4 by inserting at the beginning 

the following new heading: 

‘‘Cumulative Application of Subsections 

(b)(2) and (b)(3).—’’; 

in Note 5 by inserting at the beginning 

the following new heading: ‘‘Upward 

Departure Provision.—’’; 

and in Note 6 by inserting at the 

beginning the following new heading: 

‘‘ ‘A Threat of Death’.—’’. 

Section 2B3.2(b)(3)(B) is amended by 

striking ‘‘subdivisions’’ and inserting 

‘‘clauses’’. 

Section 2B3.2(b)(4) is amended by 

striking ‘‘subdivisions’’ both places such 

term appears and inserting 

‘‘subparagraphs’’; and by striking 

‘‘cumulative adjustments from (3) and 

(4)’’ and inserting ‘‘cumulative 

adjustments from application of 

paragraphs (3) and (4)’’. 

The Commentary to § 2B3.2 captioned 

‘‘Application Notes’’ is amended— 

in Note 2 by inserting at the beginning 

the following new heading: ‘‘Threat of 

Injury or Serious Damage.—’’; 

in Note 3 by inserting at the beginning 

the following new heading: ‘‘Offenses 

Involving Public Officials and Other 

Extortion Offenses.—’’; 

in Note 4 by inserting at the beginning 

the following new heading: 

‘‘Cumulative Application of Subsections 

(b)(3) and (b)(4).—’’; 

in Note 5 by inserting at the beginning 

the following new heading: ‘‘Definition 

of ‘Loss to the Victim’.—’’; 

in Note 6 by inserting at the beginning 

the following new heading: 

‘‘Defendant’s Preparation or Ability to 

Carry Out a Threat.—’’; 

in Note 7 by inserting at the beginning 

the following new heading: ‘‘Upward 

Departure Based on Threat of Death or 

Serious Bodily Injury to Numerous 

Victims.—’’; 

and in Note 8 by inserting at the 

beginning the following new heading: 

‘‘Upward Departure Based on Organized 

Criminal Activity or Threat to Family 

Member of Victim.—’’. 

Section 2C1.8(b)(3) is amended by 

striking ‘‘Federal’’ and inserting 

‘‘federal’’. 

The Commentary to § 2C1.8 captioned 

‘‘Application Notes’’ is amended in 

Note 2 by striking ‘‘Federal’’ both places 

such term appears and inserting 

‘‘federal’’; and by striking ‘‘Presidential’’ 

and inserting ‘‘presidential’’. 

Section 2D1.1(b)(14)(C)(ii) is amended 

by striking ‘‘subdivision’’ and inserting 

‘‘subparagraph’’. 

The Commentary to § 2D1.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 8(D)— 

under the heading relating to LSD, 

PCP, and Other Schedule I and II 

Hallucinogens (and their immediate 

precursors), by striking the following: 

‘‘1 gm of 1- 

Piperidinocyclohexanecarbonitrile 

(PCC) = 680 gm 

1 gm of 4-Bromo-2,5- 

Dimethoxyamphetamine (DOB) = 2.5 kg 

1 gm of 2,5-Dimethoxy-4- 

methylamphetamine (DOM) = 1.67 kg 

1 gm of 3,4- 

Methylenedioxyamphetamine (MDA) = 

500 gm 

1 gm of 3,4- 

Methylenedioxymethamphetamine 

(MDMA) = 500 gm 

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

and inserting the following: 

‘‘1 gm of 1- 

Piperidinocyclohexanecarbonitrile 

(PCC) = 680 gm 

1 gm of 2,5-Dimethoxy-4- 

methylamphetamine (DOM) = 1.67 kg 

1 gm of 3,4- 

Methylenedioxyamphetamine (MDA) = 

500 gm 

1 gm of 3,4- 

Methylenedioxymethamphetamine 

(MDMA) = 500 gm 

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

1 gm of 4-Bromo-2,5- 

Dimethoxyamphetamine (DOB) = 2.5 

kg’’; 

and under the heading relating to 

Schedule III Substances (except 

ketamine), by striking ‘‘1 unit of a 

Schedule III Substance’’ and inserting 

‘‘1 unit of a Schedule III Substance 

(except Ketamine)’’; 

and in Note 9, under the heading 

relating to Hallucinogens, by striking 

the following: 

‘‘2,5-Dimethoxy-4- 

methylamphetamine (STP, DOM)* 3 mg 

MDA 250 mg 

MDMA 250 mg 

Mescaline 500 mg 

PCP* 5 mg’’; 

and inserting the following: 

‘‘2,5-Dimethoxy-4- 

methylamphetamine (STP, DOM)* 3 mg 

3,4-Methylenedioxyamphetamine 

(MDA) 250 mg 

3,4- 

Methylenedioxymethamphetamine 

(MDMA) 250 mg 

Mescaline 500 mg 

Phencyclidine (PCP)* 5 mg’’. 

The Commentary to § 2D1.1 captioned 

‘‘Background’’ is amended by striking 

‘‘Section 6453 of the Anti-Drug Abuse 

Act of 1988’’ and inserting ‘‘section 

6453 of Public Law 100–690’’. 


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The Commentary to § 2D1.2 captioned 

‘‘Background’’ is amended by striking 

‘‘Section 6454 of the Anti-Drug Abuse 

Act of 1988’’ and inserting ‘‘section 

6454 of Public Law 100–690’’. 

The Commentary to § 2D1.5 captioned 

‘‘Application Notes’’ is amended— 

in Note 1 by inserting at the beginning 

the following new heading: 

‘‘Inapplicability of Chapter Three 

Adjustment.—’’; 

in Note 2 by inserting at the beginning 

the following new heading: ‘‘Upward 

Departure Provision.—’’; 

in Note 3 by inserting at the beginning 

the following new heading: 

‘‘ ‘Continuing Series of Violations’.—’’; 

and in Note 4 by inserting at the 

beginning the following new heading: 

‘‘Multiple Counts.—’’. 

The Commentary to § 2D1.5 captioned 

‘‘Background’’ is amended by striking 

‘‘Title 21 U.S.C. 848’’ and inserting 

‘‘Section 848 of title 21, United States 

Code,’’. 

Section 2E2.1(b)(2) is amended by 

striking ‘‘subdivisions’’ both places such 

term appears and inserting 

‘‘subparagraphs’’; and by striking ‘‘the 

combined increase from (1) and (2)’’ and 

inserting ‘‘the combined increase from 

application of paragraphs (1) and (2)’’. 

The Commentary to § 2E2.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 1 by inserting at the beginning 

the following new heading: 

‘‘Definitions.—’’; 

and in Note 2 by inserting at the 

beginning the following new heading: 

‘‘Interpretation of Specific Offense 

Characteristics.—’’. 

Section 2E3.1(a)(1) is amended by 

striking ‘‘subdivision’’ and inserting 

‘‘paragraph’’. 

The Commentary to § 2E3.1 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by striking ‘‘§ 2156(g)’’ and 

inserting ‘‘§ 2156(f)’’. 

Section 2H2.1(a)(2) is amended by 

striking ‘‘in (3)’’ and inserting ‘‘in 

paragraph (3)’’. 

The Commentary to § 2H2.1 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by inserting at the beginning the 

following new heading: ‘‘Upward 

Departure Provision.—’’. 

Section 2K1.4(b)(2) is amended by 

striking ‘‘under (a)(4)’’ and inserting 

‘‘under subsection (a)(4)’’. 

The Commentary to § 2K2.4 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by striking ‘‘United State Code’’ 

both place such term appears and 

inserting ‘‘United States Code’’. 

The Commentary to § 2S1.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 1 by striking ‘‘Federal’’ and 

inserting ‘‘federal’’; 

and in Note 4(B)(vi) by striking 

‘‘subdivisions’’ and inserting ‘‘clauses’’. 

Section 3B1.1(c) is amended by 

striking ‘‘in (a) or (b)’’ and inserting ‘‘in 

subsection (a) or (b)’’. 

The Commentary to § 3B1.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 1 by inserting at the beginning 

the following new heading: ‘‘Definition 

of ‘Participant’.—’’; 

in Note 2 by inserting at the beginning 

the following new heading: ‘‘Organizer, 

Leader, Manager, or Supervisor of One 

or More Participants.—’’; 

in Note 3 by inserting at the beginning 

the following new heading: ‘‘ ‘Otherwise 

Extensive’.—’’; 

and in Note 4 by inserting at the 

beginning the following new heading: 

‘‘Factors to Consider.—’’; and by 

striking ‘‘decision making’’ and 

inserting ‘‘decision-making’’. 

The Commentary to § 3D1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 2 by inserting at the beginning the 

following new heading: ‘‘Application of 

Subsection (b).—’’. 

Section 4A1.1(b) is amended by 

striking ‘‘in (a)’’ and inserting ‘‘in 

subsection (a)’’. 

Section 4A1.1(c) is amended by 

striking ‘‘in (a) or (b)’’ and inserting ‘‘in 

subsection (a) or (b)’’. 

Section 4A1.1(d) is amended by 

striking ‘‘under (a), (b), or (c)’’ and 

inserting ‘‘under subsection (a), (b), or 

(c)’’. 

The Commentary to § 4A1.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 1, in the heading, by striking 

‘‘§ 4A1.1(a).’’ and inserting 

‘‘§ 4A1.1(a).—’’; 

in Note 2, in the heading, by striking 

‘‘§ 4A1.1(b).’’ and inserting 

‘‘§ 4A1.1(b).—’’; 

in Note 3, in the heading, by striking 

‘‘§ 4A1.1(c).’’ and inserting 

‘‘§ 4A1.1(c).—’’; 

in Note 4, in the heading, by striking 

‘‘§ 4A1.1(d).’’ and inserting 

‘‘§ 4A1.1(d).—’’; 

and in Note 5, in the heading, by 

striking ‘‘§ 4A1.1(e).’’ and inserting 

‘‘§ 4A1.1(e).—’’. 

Section 4A1.2(a)(2) is amended by 

striking ‘‘by (A) or (B)’’ and inserting 

‘‘by subparagraph (A) or (B)’’. 

Section 4A1.2(d)(2)(B) is amended by 

striking ‘‘in (A)’’ and inserting ‘‘in 

subparagraph (A)’’. 

Section 5E1.2(c)(2) is amended by 

striking ‘‘in (4)’’ and inserting ‘‘in 

paragraph (4)’’. 

Section 5F1.6 is amended by striking 

‘‘Federal’’ and inserting ‘‘federal’’. 

The Commentary to 5F1.6 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by inserting at the beginning the 

following new heading: ‘‘Definition of 

‘Federal Benefit’.—’’. 

The Commentary to § 5G1.2 captioned 

‘‘Application Notes’’ is amended— 

in Note 1 by striking ‘‘See Note 3’’ and 

inserting ‘‘See Application Note 3’’. 

in Note 2(A) by striking ‘‘subdivision’’ 

and inserting ‘‘subparagraph’’; 

in Note 4(B)(i) by striking ‘‘a drug 

trafficking offense (5 year mandatory 

minimum), and one count of violating 

21 U.S.C. 841(b)(1)(C) (20 year statutory 

maximum)’’ and inserting ‘‘a drug 

trafficking offense (5-year mandatory 

minimum), and one count of violating 

21 U.S.C. 841(b)(1)(C) (20-year statutory 

maximum)’’; 

in Note 4(B)(ii) by striking ‘‘one count 

of 18 U.S.C. 924(c) (5 year mandatory 

minimum), and one count of violating 

21 U.S.C. 841(b)(1)(C) (20 year statutory 

maximum)’’ and inserting ‘‘one count of 

18 U.S.C. 924(c) (5-year mandatory 

minimum), and one count of violating 

21 U.S.C. 841(b)(1)(C) (20-year statutory 

maximum)’’; 

and in Note 4(B)(iii) by striking the 

following: 

‘‘The defendant is convicted of two 

counts of 18 U.S.C. 924(c) (5 year 

mandatory minimum on first count, 25 

year mandatory minimum on second 

count) and one count of violating 18 

U.S.C. 113(a)(3) (10 year statutory 

maximum). Applying § 4B1.1(c), the 

court determines that a sentence of 460 

months is appropriate (applicable 

guideline range of 460–485 months). 

The court then imposes (I) a sentence of 

60 months on the first 18 U.S.C. 924(c) 

count; (II) a sentence of 300 months on 

the second 18 U.S.C. 924(c) count; and 

(III) a sentence of 100 months on the 18 

U.S.C. 113(a)(3) count. The sentence on 

each count is imposed to run 

consecutively to the other counts.’’; 

and inserting the following: 

‘‘The defendant is convicted of two 

counts of 18 U.S.C. 924(c) (5-year 

mandatory minimum on each count) 

and one count of violating 18 U.S.C. 

113(a)(3) (10-year statutory maximum). 

Applying § 4B1.1(c), the court 

determines that a sentence of 262 

months is appropriate (applicable 

guideline range of 262–327 months). 

The court then imposes (I) a sentence of 

82 months on the first 18 U.S.C. 924(c) 

count; (II) a sentence of 60 months on 

the second 18 U.S.C. 924(c) count; and 

(III) a sentence of 120 months on the 18 

U.S.C. 113(a)(3) count. The sentence on 

each count is imposed to run 

consecutively to the other counts.’’. 

The Commentary to § 5K1.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 1 by inserting at the beginning 

the following new heading: ‘‘Sentence 

Below Statutorily Required Minimum 

Sentence.—’’; 

in Note 2 by inserting at the beginning 

the following new heading: ‘‘Interaction 


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with Acceptance of Responsibility 

Reduction.—’’; 

and in Note 3 by inserting at the 

beginning the following new heading: 

‘‘Government’s Evaluation of Extent of 

Defendant’s Assistance.—’’. 

The Commentary to § 5K1.1 captioned 

‘‘Background’’ is amended by striking 

‘‘in camera’’ and inserting ‘‘in camera’’. 

Section 5K2.0(e) is amended by 

striking ‘‘in camera’’ and inserting ‘‘in 

camera’’. 

The Commentary to § 5K2.0 captioned 

‘‘Application Notes’’ is amended in 

Note 3(C) by striking ‘‘subdivision’’ and 

inserting ‘‘subparagraph’’. 

Section 6A1.5 is amended by striking 

‘‘Federal’’ and inserting ‘‘federal’’. 

The Commentary to § 8B2.1 captioned 

‘‘Application Notes’’ is amended in 

Note 4(A) by striking ‘‘any Federal, 

State,’’ and inserting ‘‘any federal, 

state,’’. 

7. Simplification of Three-Step Process 

Synopsis of Proposed Amendment: In 

September 2023, the Commission 

identified as one of its policy priorities 

for the amendment cycle ending May 1, 

2024, the ‘‘exploration of ways to 

simplify the guidelines and possible 

consideration of amendments that might 

be appropriate.’’ U.S. Sent’g Comm’n, 

‘‘Notice of Final Priorities,’’ 88 FR 

60536 (Sept. 1, 2023). Consistent with 

this priority, the Commission is 

publishing these issues for comment 

and proposed amendment to inform the 

Commission’s consideration of these 

issues. 

The Three-Step Process in the 

Guidelines Manual 

The Sentencing Reform Act of 1984 

(Title II of the Comprehensive Crime 

Control Act of 1984) (the ‘‘Act’’) 

provides for the development of 

guidelines that will further the basic 

purposes of criminal sentencing: 

deterrence, incapacitation, retribution, 

and rehabilitation. The Act delegates 

broad authority to the Commission to 

review and rationalize the federal 

sentencing process. The Act contains 

detailed instructions as to how this 

determination should be made, the most 

important of which directs the 

Commission to establish categories of 

offenses and categories of defendants for 

use in prescribing guideline ranges that 

specify an appropriate sentence and to 

consider whether, and to what extent, 

specific offense-based and offenderbased factors are relevant to sentencing. 

See 28 U.S.C. 994(c) and (d). In relation 

to the establishment of categories of 

defendants, the Act placed several 

limitations upon the Commission’s 

ability to consider certain personal and 

individual characteristics in 

establishing the guidelines and policy 

statements. See 28 U.S.C. 994(d), (e). 

In United States v. Booker, 543 U.S. 

220 (2005), the Supreme Court held that 

the portion of 18 U.S.C. 3553 making 

the guidelines mandatory was 

unconstitutional. The Court has further 

explained that the guideline range, 

which reflects the defendant’s criminal 

conduct and the defendant’s criminal 

history, should continue to be ‘‘the 

starting point and the initial 

benchmark’’ in sentencing proceedings. 

See Gall v. United States, 552 U.S. 38, 

49 (2007); see also Peugh v. United 

States, 569 U.S. 530 (2013) (noting that 

‘‘the post-Booker federal sentencing 

system adopted procedural measures 

that make the guidelines the ‘lodestone’ 

of sentencing’’). After determining the 

kinds of sentence and guideline range, 

however, the court must also fully 

consider the factors in 18 U.S.C. 

3553(a), including, among other factors, 

‘‘the nature and circumstances of the 

offense and the history and 

characteristics of the defendant,’’ to 

determine a sentence that is sufficient 

but not greater than necessary. 

In the wake of Booker and other cases, 

§ 1B1.1 (Application Instructions) sets 

forth the instructions for determining 

the applicable guideline range and type 

of sentence to impose, in accordance 

with the Guidelines Manual. It sets forth 

a three-step process for determining the 

sentence to be imposed, which is 

reflected in the three main subdivisions 

of § 1B1.1 (subsections (a) through (c)). 

The three-step process can be 

summarized as follows: (1) the court 

calculates the applicable guideline 

range and determines the sentencing 

requirements and options related to 

probation, imprisonment, supervision 

conditions, fines, and restitution; (2) the 

court considers policy statements and 

guideline commentary relating to 

departures and specific personal 

characteristics that might warrant 

consideration in imposing the sentence; 

and (3) the court considers the 

applicable factors in 18 U.S.C. 3553(a) 

in deciding what sentence to impose 

(whether within the applicable 

guideline range, or whether as a 

departure or as a variance (or as both)). 

The first step in the three-step 

process, as set forth in § 1B1.1(a), 

requires the court to calculate the 

applicable guideline range and 

determine the kind of sentence by 

applying Chapters Two (Offense 

Conduct), Three (Adjustments), and 

Four (Criminal History and Criminal 

Livelihood), and Parts B through G of 

Chapter Five (Determining the 

Sentence). 

The second step in the three-step 

process, as set forth in § 1B1.1(b), 

requires the court to consider ‘‘Parts H 

and K of Chapter Five, Specific Offender 

Characteristics and Departures, and any 

other policy statements or commentary 

in the guidelines that might warrant 

consideration in imposing sentence.’’ 

Authorized grounds for departures 

based on various circumstances of the 

offense, specific personal characteristics 

of the offender, and certain procedural 

history of the case are described 

throughout the Guidelines Manual: 

several Chapter Two offense guidelines 

and Chapter Eight organizational 

guidelines contain departure provisions 

within their corresponding 

Commentary; grounds for departure 

based on criminal history are provided 

in Chapter Four; and Chapter Five sets 

forth various policy statements with 

additional grounds for departure. 

Chapter Five, Part H, addresses the 

relevance of certain specific personal 

characteristics in sentencing by 

allocating them into three general 

categories. The first category includes 

specific personal characteristics that 

Congress has prohibited from 

consideration or that the Commission 

has determined should be prohibited. 

See, e.g., USSG § 5H1.10 (Race, Sex, 

National Origin, Creed, Religion, and 

Socio-Economic Status (Policy 

Statement)). The second category 

includes specific personal 

characteristics that Congress directed 

the Commission to ensure are reflected 

in the guidelines and policy statements 

as generally inappropriate in 

recommending a term of imprisonment 

or length of a term of imprisonment. 

See, e.g., §§ 5H1.2 (Employment 

Record); 5H1.6 (Family Ties and 

Responsibilities (Policy Statement)). 

The third category includes specific 

personal characteristics that Congress 

directed the Commission to consider in 

the guidelines only to the extent that 

they have relevance to sentencing. See, 

e.g., USSG §§ 5H1.1 (Age (Policy 

Statement)); 5H1.3 (Mental and 

Emotional Conditions (Policy 

Statement)). 

The third step in the three-step 

process, as set forth in § 1B1.1(c), 

requires the court to ‘‘consider the 

applicable factors in 18 U.S.C. 3553(a) 

taken as a whole.’’ Specifically, section 

3553(a) provides: 

The court shall impose a sentence 

sufficient, but not greater than 

necessary, to comply with the purposes 

set forth in paragraph (2) of this 

subsection. The court, in determining 

the particular sentence to be imposed, 

shall consider— 


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(1) the nature and circumstances of 

the offense and the history and 

characteristics of the defendant; 

(2) the need for the sentence 

imposed— 

(A) to reflect the seriousness of the 

offense, to promote respect for the law, 

and to provide just punishment for the 

offense; 

(B) to afford adequate deterrence to 

criminal conduct; 

(C) to protect the public from further 

crimes of the defendant; and 

(D) to provide the defendant with 

needed educational or vocational 

training, medical care, or other 

correctional treatment in the most 

effective manner; 

(3) the kinds of sentences available; 

(4) the kinds of sentence and the 

sentencing range established for— 

(A) the applicable category of offense 

committed by the applicable category of 

defendant as set forth in the 

guidelines— 

(i) issued by the Sentencing 

Commission pursuant to section 

994(a)(1) of title 28, United States Code, 

subject to any amendments made to 

such guidelines by act of Congress 

(regardless of whether such 

amendments have yet to be incorporated 

by the Sentencing Commission into 

amendments issued under section 

994(p) of title 28); and 

(ii) that, except as provided in section 

3742(g), are in effect on the date the 

defendant is sentenced; or 

(B) in the case of a violation of 

probation or supervised release, the 

applicable guidelines or policy 

statements issued by the Sentencing 

Commission pursuant to section 

994(a)(3) of title 28, United States Code, 

taking into account any amendments 

made to such guidelines or policy 

statements by act of Congress (regardless 

of whether such amendments have yet 

to be incorporated by the Sentencing 

Commission into amendments issued 

under section 994(p) of title 28); 

(5) any pertinent policy statement— 

(A) issued by the Sentencing 

Commission pursuant to section 

994(a)(2) of title 28, United States Code, 

subject to any amendments made to 

such policy statement by act of Congress 

(regardless of whether such 

amendments have yet to be incorporated 

by the Sentencing Commission into 

amendments issued under section 

994(p) of title 28); and 

(B) that, except as provided in section 

3742(g), is in effect on the date the 

defendant is sentenced. 

(6) the need to avoid unwarranted 

sentence disparities among defendants 

with similar records who have been 

found guilty of similar conduct; and 

(7) the need to provide restitution to 

any victims of the offense. 

18 U.S.C. 3553(a). 

Post-Booker, courts have been using 

departures provided under step two of 

the three-step process with less 

frequency in favor of variances. Given 

this trend, the Commission has 

identified the reconceptualization of the 

three-step process as one potential 

method of simplifying the guidelines. 

Proposed Amendment 

The proposed amendment contains 

two parts. Part A contains issues for 

comment on whether any changes 

should be made to the Guidelines 

Manual relating to the three-step 

process set forth in § 1B1.1 and the use 

of departures and policy statements 

relating to specific personal 

characteristics. Part B contains a 

proposed amendment that would 

restructure the Guidelines Manual to 

simplify both (1) the current three-step 

process utilized in determining a 

sentence that is ‘‘sufficient, but not 

greater than necessary,’’ and (2) existing 

guidance in the Guidelines Manual 

regarding a court’s consideration of the 

individual circumstances of the 

defendant as well as certain offense 

characteristics. The proposed 

amendment set forth in Part B also seeks 

to better address the distinction between 

the statutory limitations on the 

Commission’s ability to consider certain 

offense characteristics and individual 

circumstances in recommending a term 

of imprisonment or length of 

imprisonment, and the requirement that 

the court consider a broad range of 

individual and offense characteristics in 

determining an appropriate sentence 

pursuant to 18 U.S.C. 3553(a). 

The proposed amendment would 

make changes to better align the 

requirements placed on the court and 

acknowledge the growing shift away 

from the use of departures provided for 

within the Guidelines Manual in the 

wake of Booker and subsequent 

decisions. See United States v. Booker, 

543 U.S. 220 (2005); Irizarry v. United 

States, 553 U.S. 708 (2008) (holding that 

Rule 32(h) of the Federal Rules of 

Criminal Procedure, which requires a 

court to give ‘‘reasonable notice’’ that 

the court is contemplating a ‘‘departure’’ 

from the recommended guideline range 

on a ground not identified for departure 

in the presentence report or in a party’s 

prehearing submission, does not apply 

to a ‘‘variance’’ from a recommended 

guideline range). 

The proposed amendment would 

revise Chapter One in multiple ways. 

First, it would delete the ‘‘Original 

Introduction to the Guidelines Manual’’ 

currently contained in Chapter One, 

Part A. This introduction would be 

published as a historical background in 

Appendix B (Selected Sentencing 

Statutes) of the Guidelines Manual. 

Second, the proposed amendment 

would revise the application 

instructions provided in § 1B1.1 to 

reflect the simplification of the threestep process into two steps. 

Additionally, the definition of 

‘‘departures’’ is removed from the 

application notes to § 1B1.1, and the 

Background Commentary is revised 

accordingly. 

Consistent with the revised approach, 

the proposed amendment would 

reclassify most ‘‘departures’’ currently 

provided throughout the Guidelines 

Manual. Under the new approach, 

current departure provisions would be 

retained in more generalized language. 

Instead of being identified as 

departures, they would be generally 

reclassified as ‘‘Additional 

Considerations’’ that may be relevant to 

the court’s determination under 18 

U.S.C. 3553(a). Changes would be made 

throughout the Guidelines Manual by 

revising the departure provisions 

currently contained in commentary to 

various guidelines. Such provisions 

would be maintained in a new section 

to the commentary titled ‘‘Additional 

Considerations’’ and are intended to 

retain, to the extent possible, the 

guidance and considerations provided 

by the deleted provisions and to be 

neutral as to the scope and content of 

the conduct covered. 

The proposed amendment would also 

retitle Chapter Five to reflect its focus 

on the rules pertaining to the 

calculation of the guideline range, 

specifically to better reflect the chapter’s 

purpose in the introductory 

commentary noting that ‘‘a sentence is 

within the guidelines if it complies with 

each applicable section of this chapter.’’ 

All current provisions contained in 

Chapter Five, Part H (Specific Offender 

Characteristics) would be deleted. 

Similarly, most of the provisions in 

Chapter Five, Part K (Departures), 

would be deleted. Only the provisions 

pertaining to substantial assistance 

would be retained, while the provision 

pertaining to early disposition programs 

would be moved to a new Part F in 

Chapter Three. 

The proposed amendment would also 

create a new Chapter Six (renumbering 

existing chapters accordingly) to 

facilitate the court’s consideration of 18 

U.S.C. 3553(a). The new chapter is 

divided into three guidelines. The first 

generally reflects the court’s 

consideration of the section 3553(a) 

factors and specifically references those 


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factors. The second and third guidelines 

compile factors which generally are not 

considered in the calculation of the 

guideline range in Chapters Two 

through Five, but which may be relevant 

to the court’s consideration of ‘‘the 

nature and circumstances of the offense 

and the history and characteristics of 

the defendant’’ pursuant to 18 U.S.C. 

3553(a)(1). These factors set forth 

reasons from former Parts H and K of 

Chapter Five, including factors that are 

generally not considered in the 

calculation of the guideline range in 

Chapters Two through Five, but which 

courts regularly consider pursuant to 

section 3553(a). While the list of factors 

is provided to both facilitate the court’s 

consideration and to assist with the 

collection of data by the Commission, 

the proposed amendment includes 

language recognizing that the nature, 

extent, and significance of specific 

personal characteristics can involve a 

range of considerations that are difficult 

or impossible to quantify for purposes of 

establishing the guideline ranges. As 

such, the new chapter notes that the 

factors identified are not weighted in 

any manner or intended to be 

comprehensive or to otherwise infringe 

upon the court’s unique position to 

determine the most appropriate 

sentence. 

The issues for comment set forth 

below are informed by the proposed 

amendment contained in Part B. In 

addition to receiving input from the 

issues for comment below, the 

Commission anticipates both general 

comment on Part B of the proposed 

amendment and welcomes line edits on 

the specific changes proposed. 

(A) Issues for Comment 

1. Part B of the proposed amendment 

would reconceptualize and simplify the 

three-step process, as set forth in § 1B1.1 

(Application Instructions), to streamline 

the application of the Guidelines 

Manual and to better reflect the 

interaction between 18 U.S.C. 3553(a) 

and the guidelines. It would do so by 

removing the second step in the threestep process, as set forth in § 1B1.1(b), 

requiring the court to consider the 

departure provisions set forth 

throughout the Guidelines Manual and 

the policy statements contained in 

Chapter Five, Part H, relating to specific 

personal characteristics. The Guidelines 

Manual currently contains more than 

two hundred departure provisions in 

Chapter Five, Part K, and the 

commentary to various guidelines 

elsewhere in the Manual. Chapter Five, 

Part H, contains twelve policy 

statements addressing the relevance of 

certain specific personal characteristics 

in sentencing. The Commission invites 

general comment on whether the 

Commission should reconceptualize 

and simplify the three-step process in 

this manner. If so, what, if any, 

revisions would be appropriate to 

further the Commission’s goal to 

reconceptualize and simplify the threestep process? If not, are there any other 

approaches that the Commission should 

consider to reconceptualize and 

simplify the three-step process, and if 

so, what are they? 

2. The Commission seeks comment on 

whether revising the three-step process 

either in general or as implemented in 

any particular provision in Part B of the 

proposed amendment, is consistent with 

28 U.S.C. 994 and 995 and all other 

provisions of federal law. In particular, 

the Commission seeks comment 

regarding whether providing guidance 

to the courts regarding consideration of 

the other factors in 18 U.S.C. 3553(a), 

including providing examples of factors 

that may be relevant to the court’s 

determination of the appropriate 

sentence, is consistent with the 

Commission’s authority. Similarly, the 

Commission seeks comment on whether 

revising the three-step process is 

consistent with other congressional 

directives to the Commission. 

3. The proposed amendment 

contained in Part B would continue to 

account for factors contained in most of 

the two hundred departure provisions 

in Chapter Five, Parts H and K, and the 

commentary to various guidelines in 

different ways. If the Commission were 

to remove the second step in the threestep process, as proposed in Part B, 

should the Commission continue to 

account for these factors? If so, how and 

why? Should the Commission account 

for these factors in the manner set forth 

in Part B of the proposed amendment? 

If not, should the Commission consider 

a different approach? For example, 

should the Commission remove some or 

all of the specific factors and rely on a 

more general policy statement 

referencing the sentencing factors in 18 

U.S.C.§ 3553(a)? What should such a 

policy statement specifically provide? 

What factors should be retained or 

removed, and why? 

4. The proposed amendment would 

create a new Chapter Six (and renumber 

existing chapters accordingly) that 

consolidate in three policy statements 

many of the factors in contained in 

Chapter Five, Parts H and K. The new 

Chapter Six set forth in Part B of the 

proposed amendment would facilitate 

the court’s consideration of 18 U.S.C. 

3553(a). The new chapter is divided into 

three guidelines, § 6A1.1 through 

§ 6A1.3. New § 6A1.1 generally reflects 

the court’s consideration of the section 

3553(a) factors and specifically 

references those factors. New §§ 6A1.2 

and 6A1.3 compile factors which 

generally are not considered in the 

calculation of the guideline range in 

Chapters Two through Five, but which 

may be relevant to the court’s 

consideration of ‘‘the nature and 

circumstances of the offense and the 

history and characteristics of the 

defendant’’ pursuant to 18 U.S.C. 

3553(a)(1). New § 6A1.2 enumerates 

certain personal characteristics, while 

§ 6A1.3 provides a list of offense 

characteristics along with some 

guidance for consideration of the court. 

The Commission does not intend to 

expand the list of personal and offense 

characteristics beyond those set forth in 

the proposed amendment. The 

Commission does, however, seek 

comment on whether the policy 

statement compiling factors relating to 

personal characteristics in § 6A1.2 

should include more specific guidance 

to the court regarding when and under 

what types of circumstances any such 

characteristic may be relevant to the 

court’s sentencing determination in a 

manner that is more similar to new 

§ 6A1.3. Similarly, should the 

Commission provide different guidance 

regarding the offense characteristics in 

§ 6A1.3? If so, what guidance should the 

Commission provide for both personal 

characteristics and offense 

characteristics, and why? If not, how 

should the Commission lay out such 

characteristics and why? 

5. In addition to new Chapter Six, Part 

B of the proposed amendment would 

reclassify most ‘‘departures’’ currently 

provided throughout the Guidelines 

Manual. Instead of being identified as 

departures, they would be generally 

reclassified in the corresponding 

Chapter Two provisions as ‘‘Additional 

Offense Specific Considerations’’ that 

may be relevant to the court’s 

determination under 18 U.S.C. 3553(a). 

Under the new approach, the current 

departure provisions would be retained 

in more generalized language but are 

intended to be neutral as to the scope 

and content of the conduct covered by 

the existing departures. The 

Commission seeks comment on whether 

some or all of the factors contained in 

the commentary to various guidelines 

should be consolidated in the new 

Chapter Six. If so, which factors should 

be moved into new Chapter Six, and 

why? Which factors should be retained 

in their current guideline or policy 

statement, and why? 

The Commission further seeks 

comment regarding whether any 

revisions made in reclassifying 


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departures as ‘‘Additional 

Considerations’’ unintentionally remove 

guidance and considerations provided 

by the deleted provisions or 

unintentionally expand or contract the 

scope and content of those provisions. 

6. If the Commission were to remove 

or limit the departure provisions in the 

Guidelines Manual, how should the 

Commission continue to account for 

sentencing considerations for 

substantial assistance to authorities and 

refusal to assist authorities, currently 

provided for in §§ 5K1.1 (Substantial 

Assistance to Authorities (Policy 

Statement)) and 5K1.2 (Refusal to Assist 

(Policy Statement))? 

7. If the Commission were to remove 

or limit the departure provisions in the 

Guidelines Manual, how should the 

Commission continue to account for 

sentencing considerations relating to 

early disposition programs, currently 

provided for in § 5K3.1 (Early 

Disposition Programs (Policy 

Statement))? 

8. The Commission seeks general 

comment on whether the proposed 

changes to the Guidelines Manual, as set 

forth in Part B of the proposed 

amendment, would make it easier for 

courts to report the reasons for their 

sentences and allow possible 

improvements in data collection on all 

of the factors courts consider when 

imposing a sentence consistent with 18 

U.S.C. 3553(a). What, if any, changes to 

the proposed amendment would 

enhance such reporting and data 

collection efforts? What changes should 

the Commission consider, in 

conjunction with the Judicial 

Conference of the United States, to the 

Statement of Reasons form if the 

proposed amendment is adopted? 

(B) Proposed Amendment 

Chapter One is amended by striking 

Part A as follows: 

‘‘Part A—Introduction and Authority 

Introductory Commentary 

Subparts 1 and 2 of this Part provide 

an introduction to the Guidelines 

Manual describing the historical 

development and evolution of the 

federal sentencing guidelines. Subpart 1 

sets forth the original introduction to 

the Guidelines Manual as it first 

appeared in 1987, with the inclusion of 

amendments made occasionally thereto 

between 1987 and 2000. The original 

introduction, as so amended, explained 

a number of policy decisions made by 

the United States Sentencing 

Commission (‘Commission’) when it 

promulgated the initial set of guidelines 

and therefore provides a useful 

reference for contextual and historical 

purposes. Subpart 2 further describes 

the evolution of the federal sentencing 

guidelines after the initial guidelines 

were promulgated. 

Subpart 3 of this Part states the 

authority of the Commission to 

promulgate federal sentencing 

guidelines, policy statements, and 

commentary. 

1. Original Introduction to the 

Guidelines Manual 

The following provisions of this 

Subpart set forth the original 

introduction to this manual, effective 

November 1, 1987, and as amended 

through November 1, 2000: 

1. Authority 

The United States Sentencing 

Commission (‘Commission’) is an 

independent agency in the judicial 

branch composed of seven voting and 

two non-voting, ex officio members. Its 

principal purpose is to establish 

sentencing policies and practices for the 

federal criminal justice system that will 

assure the ends of justice by 

promulgating detailed guidelines 

prescribing the appropriate sentences 

for offenders convicted of federal 

crimes. 

The guidelines and policy statements 

promulgated by the Commission are 

issued pursuant to Section 994(a) of 

Title 28, United States Code. 

2. The Statutory Mission 

The Sentencing Reform Act of 1984 

(Title II of the Comprehensive Crime 

Control Act of 1984) provides for the 

development of guidelines that will 

further the basic purposes of criminal 

punishment: deterrence, incapacitation, 

just punishment, and rehabilitation. The 

Act delegates broad authority to the 

Commission to review and rationalize 

the federal sentencing process. 

The Act contains detailed instructions 

as to how this determination should be 

made, the most important of which 

directs the Commission to create 

categories of offense behavior and 

offender characteristics. An offense 

behavior category might consist, for 

example, of ‘bank robbery/committed 

with a gun/$2500 taken.’ An offender 

characteristic category might be 

‘offender with one prior conviction not 

resulting in imprisonment.’ The 

Commission is required to prescribe 

guideline ranges that specify an 

appropriate sentence for each class of 

convicted persons determined by 

coordinating the offense behavior 

categories with the offender 

characteristic categories. Where the 

guidelines call for imprisonment, the 

range must be narrow: the maximum of 

the range cannot exceed the minimum 

by more than the greater of 25 percent 

or six months. 28 U.S.C. 994(b)(2). 

Pursuant to the Act, the sentencing 

court must select a sentence from within 

the guideline range. If, however, a 

particular case presents atypical 

features, the Act allows the court to 

depart from the guidelines and sentence 

outside the prescribed range. In that 

case, the court must specify reasons for 

departure. 18 U.S.C. 3553(b). If the court 

sentences within the guideline range, an 

appellate court may review the sentence 

to determine whether the guidelines 

were correctly applied. If the court 

departs from the guideline range, an 

appellate court may review the 

reasonableness of the departure. 18 

U.S.C. 3742. The Act also abolishes 

parole, and substantially reduces and 

restructures good behavior adjustments. 

The Commission’s initial guidelines 

were submitted to Congress on April 13, 

1987. After the prescribed period of 

Congressional review, the guidelines 

took effect on November 1, 1987, and 

apply to all offenses committed on or 

after that date. The Commission has the 

authority to submit guideline 

amendments each year to Congress 

between the beginning of a regular 

Congressional session and May 1. Such 

amendments automatically take effect 

180 days after submission unless a law 

is enacted to the contrary. 28 U.S.C. 

994(p). 

The initial sentencing guidelines and 

policy statements were developed after 

extensive hearings, deliberation, and 

consideration of substantial public 

comment. The Commission emphasizes, 

however, that it views the guidelinewriting process as evolutionary. It 

expects, and the governing statute 

anticipates, that continuing research, 

experience, and analysis will result in 

modifications and revisions to the 

guidelines through submission of 

amendments to Congress. To this end, 

the Commission is established as a 

permanent agency to monitor 

sentencing practices in the federal 

courts. 

3. The Basic Approach (Policy 

Statement) 

To understand the guidelines and 

their underlying rationale, it is 

important to focus on the three 

objectives that Congress sought to 

achieve in enacting the Sentencing 

Reform Act of 1984. The Act’s basic 

objective was to enhance the ability of 

the criminal justice system to combat 

crime through an effective, fair 

sentencing system. To achieve this end, 

Congress first sought honesty in 


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sentencing. It sought to avoid the 

confusion and implicit deception that 

arose out of the pre-guidelines 

sentencing system which required the 

court to impose an indeterminate 

sentence of imprisonment and 

empowered the parole commission to 

determine how much of the sentence an 

offender actually would serve in prison. 

This practice usually resulted in a 

substantial reduction in the effective 

length of the sentence imposed, with 

defendants often serving only about 

one-third of the sentence imposed by 

the court. 

Second, Congress sought reasonable 

uniformity in sentencing by narrowing 

the wide disparity in sentences imposed 

for similar criminal offenses committed 

by similar offenders. Third, Congress 

sought proportionality in sentencing 

through a system that imposes 

appropriately different sentences for 

criminal conduct of differing severity. 

Honesty is easy to achieve: the 

abolition of parole makes the sentence 

imposed by the court the sentence the 

offender will serve, less approximately 

fifteen percent for good behavior. There 

is a tension, however, between the 

mandate of uniformity and the mandate 

of proportionality. Simple uniformity— 

sentencing every offender to five years— 

destroys proportionality. Having only a 

few simple categories of crimes would 

make the guidelines uniform and easy to 

administer, but might lump together 

offenses that are different in important 

respects. For example, a single category 

for robbery that included armed and 

unarmed robberies, robberies with and 

without injuries, robberies of a few 

dollars and robberies of millions, would 

be far too broad. 

A sentencing system tailored to fit 

every conceivable wrinkle of each case 

would quickly become unworkable and 

seriously compromise the certainty of 

punishment and its deterrent effect. For 

example: a bank robber with (or 

without) a gun, which the robber kept 

hidden (or brandished), might have 

frightened (or merely warned), injured 

seriously (or less seriously), tied up (or 

simply pushed) a guard, teller, or 

customer, at night (or at noon), in an 

effort to obtain money for other crimes 

(or for other purposes), in the company 

of a few (or many) other robbers, for the 

first (or fourth) time. 

The list of potentially relevant 

features of criminal behavior is long; the 

fact that they can occur in multiple 

combinations means that the list of 

possible permutations of factors is 

virtually endless. The appropriate 

relationships among these different 

factors are exceedingly difficult to 

establish, for they are often context 

specific. Sentencing courts do not treat 

the occurrence of a simple bruise 

identically in all cases, irrespective of 

whether that bruise occurred in the 

context of a bank robbery or in the 

context of a breach of peace. This is so, 

in part, because the risk that such a 

harm will occur differs depending on 

the underlying offense with which it is 

connected; and also because, in part, the 

relationship between punishment and 

multiple harms is not simply additive. 

The relation varies depending on how 

much other harm has occurred. Thus, it 

would not be proper to assign points for 

each kind of harm and simply add them 

up, irrespective of context and total 

amounts. 

The larger the number of 

subcategories of offense and offender 

characteristics included in the 

guidelines, the greater the complexity 

and the less workable the system. 

Moreover, complex combinations of 

offense and offender characteristics 

would apply and interact in unforeseen 

ways to unforeseen situations, thus 

failing to cure the unfairness of a 

simple, broad category system. Finally, 

and perhaps most importantly, 

probation officers and courts, in 

applying a complex system having 

numerous subcategories, would be 

required to make a host of decisions 

regarding whether the underlying facts 

were sufficient to bring the case within 

a particular subcategory. The greater the 

number of decisions required and the 

greater their complexity, the greater the 

risk that different courts would apply 

the guidelines differently to situations 

that, in fact, are similar, thereby 

reintroducing the very disparity that the 

guidelines were designed to reduce. 

In view of the arguments, it would 

have been tempting to retreat to the 

simple, broad category approach and to 

grant courts the discretion to select the 

proper point along a broad sentencing 

range. Granting such broad discretion, 

however, would have risked 

correspondingly broad disparity in 

sentencing, for different courts may 

exercise their discretionary powers in 

different ways. Such an approach would 

have risked a return to the wide 

disparity that Congress established the 

Commission to reduce and would have 

been contrary to the Commission’s 

mandate set forth in the Sentencing 

Reform Act of 1984. 

In the end, there was no completely 

satisfying solution to this problem. The 

Commission had to balance the 

comparative virtues and vices of broad, 

simple categorization and detailed, 

complex subcategorization, and within 

the constraints established by that 

balance, minimize the discretionary 

powers of the sentencing court. Any 

system will, to a degree, enjoy the 

benefits and suffer from the drawbacks 

of each approach. 

A philosophical problem arose when 

the Commission attempted to reconcile 

the differing perceptions of the purposes 

of criminal punishment. Most observers 

of the criminal law agree that the 

ultimate aim of the law itself, and of 

punishment in particular, is the control 

of crime. Beyond this point, however, 

the consensus seems to break down. 

Some argue that appropriate 

punishment should be defined 

primarily on the basis of the principle 

of ‘just deserts.’ Under this principle, 

punishment should be scaled to the 

offender’s culpability and the resulting 

harms. Others argue that punishment 

should be imposed primarily on the 

basis of practical ‘crime control’ 

considerations. This theory calls for 

sentences that most effectively lessen 

the likelihood of future crime, either by 

deterring others or incapacitating the 

defendant. 

Adherents of each of these points of 

view urged the Commission to choose 

between them and accord one primacy 

over the other. As a practical matter, 

however, this choice was unnecessary 

because in most sentencing decisions 

the application of either philosophy will 

produce the same or similar results. 

In its initial set of guidelines, the 

Commission sought to solve both the 

practical and philosophical problems of 

developing a coherent sentencing 

system by taking an empirical approach 

that used as a starting point data 

estimating pre-guidelines sentencing 

practice. It analyzed data drawn from 

10,000 presentence investigations, the 

differing elements of various crimes as 

distinguished in substantive criminal 

statutes, the United States Parole 

Commission’s guidelines and statistics, 

and data from other relevant sources in 

order to determine which distinctions 

were important in pre-guidelines 

practice. After consideration, the 

Commission accepted, modified, or 

rationalized these distinctions. 

This empirical approach helped the 

Commission resolve its practical 

problem by defining a list of relevant 

distinctions that, although of 

considerable length, was short enough 

to create a manageable set of guidelines. 

Existing categories are relatively broad 

and omit distinctions that some may 

believe important, yet they include most 

of the major distinctions that statutes 

and data suggest made a significant 

difference in sentencing decisions. 

Relevant distinctions not reflected in 

the guidelines probably will occur 

rarely and sentencing courts may take 


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such unusual cases into account by 

departing from the guidelines. 

The Commission’s empirical 

approach also helped resolve its 

philosophical dilemma. Those who 

adhere to a just deserts philosophy may 

concede that the lack of consensus 

might make it difficult to say exactly 

what punishment is deserved for a 

particular crime. Likewise, those who 

subscribe to a philosophy of crime 

control may acknowledge that the lack 

of sufficient data might make it difficult 

to determine exactly the punishment 

that will best prevent that crime. Both 

groups might therefore recognize the 

wisdom of looking to those distinctions 

that judges and legislators have, in fact, 

made over the course of time. These 

established distinctions are ones that 

the community believes, or has found 

over time, to be important from either a 

just deserts or crime control perspective. 

The Commission did not simply copy 

estimates of pre-guidelines practice as 

revealed by the data, even though 

establishing offense values on this basis 

would help eliminate disparity because 

the data represent averages. Rather, it 

departed from the data at different 

points for various important reasons. 

Congressional statutes, for example, 

suggested or required departure, as in 

the case of the Anti-Drug Abuse Act of 

1986 that imposed increased and 

mandatory minimum sentences. In 

addition, the data revealed 

inconsistencies in treatment, such as 

punishing economic crime less severely 

than other apparently equivalent 

behavior. 

Despite these policy-oriented 

departures from pre-guidelines practice, 

the guidelines represent an approach 

that begins with, and builds upon, 

empirical data. The guidelines will not 

please those who wish the Commission 

to adopt a single philosophical theory 

and then work deductively to establish 

a simple and perfect set of 

categorizations and distinctions. The 

guidelines may prove acceptable, 

however, to those who seek more 

modest, incremental improvements in 

the status quo, who believe the best is 

often the enemy of the good, and who 

recognize that these guidelines are, as 

the Act contemplates, but the first step 

in an evolutionary process. After 

spending considerable time and 

resources exploring alternative 

approaches, the Commission developed 

these guidelines as a practical effort 

toward the achievement of a more 

honest, uniform, equitable, 

proportional, and therefore effective 

sentencing system. 

4. The Guidelines’ Resolution of Major 

Issues (Policy Statement) 

The guideline-drafting process 

required the Commission to resolve a 

host of important policy questions 

typically involving rather evenly 

balanced sets of competing 

considerations. As an aid to 

understanding the guidelines, this 

introduction briefly discusses several of 

those issues; commentary in the 

guidelines explains others. 

(a) Real Offense vs. Charge Offense 

Sentencing 

One of the most important questions 

for the Commission to decide was 

whether to base sentences upon the 

actual conduct in which the defendant 

engaged regardless of the charges for 

which he was indicted or convicted 

(‘real offense’ sentencing), or upon the 

conduct that constitutes the elements of 

the offense for which the defendant was 

charged and of which he was convicted 

(‘charge offense’ sentencing). A bank 

robber, for example, might have used a 

gun, frightened bystanders, taken 

$50,000, injured a teller, refused to stop 

when ordered, and raced away 

damaging property during his escape. A 

pure real offense system would sentence 

on the basis of all identifiable conduct. 

A pure charge offense system would 

overlook some of the harms that did not 

constitute statutory elements of the 

offenses of which the defendant was 

convicted. 

The Commission initially sought to 

develop a pure real offense system. 

After all, the pre-guidelines sentencing 

system was, in a sense, this type of 

system. The sentencing court and the 

parole commission took account of the 

conduct in which the defendant actually 

engaged, as determined in a presentence 

report, at the sentencing hearing, or 

before a parole commission hearing 

officer. The Commission’s initial efforts 

in this direction, carried out in the 

spring and early summer of 1986, 

proved unproductive, mostly for 

practical reasons. To make such a 

system work, even to formalize and 

rationalize the status quo, would have 

required the Commission to decide 

precisely which harms to take into 

account, how to add them up, and what 

kinds of procedures the courts should 

use to determine the presence or 

absence of disputed factual elements. 

The Commission found no practical way 

to combine and account for the large 

number of diverse harms arising in 

different circumstances; nor did it find 

a practical way to reconcile the need for 

a fair adjudicatory procedure with the 

need for a speedy sentencing process 

given the potential existence of hosts of 

adjudicated ‘real harm’ facts in many 

typical cases. The effort proposed as a 

solution to these problems required the 

use of, for example, quadratic roots and 

other mathematical operations that the 

Commission considered too complex to 

be workable. In the Commission’s view, 

such a system risked return to wide 

disparity in sentencing practice. 

In its initial set of guidelines 

submitted to Congress in April 1987, the 

Commission moved closer to a charge 

offense system. This system, however, 

does contain a significant number of 

real offense elements. For one thing, the 

hundreds of overlapping and 

duplicative statutory provisions that 

make up the federal criminal law forced 

the Commission to write guidelines that 

are descriptive of generic conduct rather 

than guidelines that track purely 

statutory language. For another, the 

guidelines take account of a number of 

important, commonly occurring real 

offense elements such as role in the 

offense, the presence of a gun, or the 

amount of money actually taken, 

through alternative base offense levels, 

specific offense characteristics, cross 

references, and adjustments. 

The Commission recognized that a 

charge offense system has drawbacks of 

its own. One of the most important is 

the potential it affords prosecutors to 

influence sentences by increasing or 

decreasing the number of counts in an 

indictment. Of course, the defendant’s 

actual conduct (that which the 

prosecutor can prove in court) imposes 

a natural limit upon the prosecutor’s 

ability to increase a defendant’s 

sentence. Moreover, the Commission 

has written its rules for the treatment of 

multicount convictions with an eye 

toward eliminating unfair treatment that 

might flow from count manipulation. 

For example, the guidelines treat a 

three-count indictment, each count of 

which charges sale of 100 grams of 

heroin or theft of $10,000, the same as 

a single-count indictment charging sale 

of 300 grams of heroin or theft of 

$30,000. Furthermore, a sentencing 

court may control any inappropriate 

manipulation of the indictment through 

use of its departure power. Finally, the 

Commission will closely monitor 

charging and plea agreement practices 

and will make appropriate adjustments 

should they become necessary. 

(b) Departures 

The sentencing statute permits a court 

to depart from a guideline-specified 

sentence only when it finds ‘an 

aggravating or mitigating circumstance 

of a kind, or to a degree, not adequately 

taken into consideration by the 


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Sentencing Commission in formulating 

the guidelines that should result in a 

sentence different from that described.’ 

18 U.S.C. 3553(b). The Commission 

intends the sentencing courts to treat 

each guideline as carving out a 

‘heartland,’ a set of typical cases 

embodying the conduct that each 

guideline describes. When a court finds 

an atypical case, one to which a 

particular guideline linguistically 

applies but where conduct significantly 

differs from the norm, the court may 

consider whether a departure is 

warranted. Section 5H1.10 (Race, Sex, 

National Origin, Creed, Religion, and 

Socio-Economic Status), § 5H1.12 (Lack 

of Guidance as a Youth and Similar 

Circumstances), the third sentence of 

§ 5H1.4 (Physical Condition, Including 

Drug or Alcohol Dependence or Abuse), 

the last sentence of § 5K2.12 (Coercion 

and Duress), and § 5K2.19 (PostSentencing Rehabilitative Efforts) * list 

several factors that the court cannot take 

into account as grounds for departure. 

With those specific exceptions, 

however, the Commission does not 

intend to limit the kinds of factors, 

whether or not mentioned anywhere 

else in the guidelines, that could 

constitute grounds for departure in an 

unusual case. 

* Note: Section 5K2.19 (PostSentencing Rehabilitative Efforts) was 

deleted by Amendment 768, effective 

November 1, 2012. (See USSG App. C, 

amendment 768.) 

The Commission has adopted this 

departure policy for two reasons. First, 

it is difficult to prescribe a single set of 

guidelines that encompasses the vast 

range of human conduct potentially 

relevant to a sentencing decision. The 

Commission also recognizes that the 

initial set of guidelines need not do so. 

The Commission is a permanent body, 

empowered by law to write and rewrite 

guidelines, with progressive changes, 

over many years. By monitoring when 

courts depart from the guidelines and by 

analyzing their stated reasons for doing 

so and court decisions with references 

thereto, the Commission, over time, will 

be able to refine the guidelines to 

specify more precisely when departures 

should and should not be permitted. 

Second, the Commission believes that 

despite the courts’ legal freedom to 

depart from the guidelines, they will not 

do so very often. This is because the 

guidelines, offense by offense, seek to 

take account of those factors that the 

Commission’s data indicate made a 

significant difference in pre-guidelines 

sentencing practice. Thus, for example, 

where the presence of physical injury 

made an important difference in preguidelines sentencing practice (as in the 

case of robbery or assault), the 

guidelines specifically include this 

factor to enhance the sentence. Where 

the guidelines do not specify an 

augmentation or diminution, this is 

generally because the sentencing data 

did not permit the Commission to 

conclude that the factor was empirically 

important in relation to the particular 

offense. Of course, an important factor 

(e.g., physical injury) may infrequently 

occur in connection with a particular 

crime (e.g., fraud). Such rare 

occurrences are precisely the type of 

events that the courts’ departure powers 

were designed to cover—unusual cases 

outside the range of the more typical 

offenses for which the guidelines were 

designed. 

It is important to note that the 

guidelines refer to two different kinds of 

departure. The first involves instances 

in which the guidelines provide specific 

guidance for departure by analogy or by 

other numerical or non-numerical 

suggestions. The Commission intends 

such suggestions as policy guidance for 

the courts. The Commission expects that 

most departures will reflect the 

suggestions and that the courts of 

appeals may prove more likely to find 

departures ‘unreasonable’ where they 

fall outside suggested levels. 

A second type of departure will 

remain unguided. It may rest upon 

grounds referred to in Chapter Five, Part 

K (Departures) or on grounds not 

mentioned in the guidelines. While 

Chapter Five, Part K lists factors that the 

Commission believes may constitute 

grounds for departure, the list is not 

exhaustive. The Commission recognizes 

that there may be other grounds for 

departure that are not mentioned; it also 

believes there may be cases in which a 

departure outside suggested levels is 

warranted. In its view, however, such 

cases will be highly infrequent. 

(c) Plea Agreements 

Nearly ninety percent of all federal 

criminal cases involve guilty pleas and 

many of these cases involve some form 

of plea agreement. Some commentators 

on early Commission guideline drafts 

urged the Commission not to attempt 

any major reforms of the plea agreement 

process on the grounds that any set of 

guidelines that threatened to change 

pre-guidelines practice radically also 

threatened to make the federal system 

unmanageable. Others argued that 

guidelines that failed to control and 

limit plea agreements would leave 

untouched a ‘loophole’ large enough to 

undo the good that sentencing 

guidelines would bring. 

The Commission decided not to make 

major changes in plea agreement 

practices in the initial guidelines, but 

rather to provide guidance by issuing 

general policy statements concerning 

the acceptance of plea agreements in 

Chapter Six, Part B (Plea Agreements). 

The rules set forth in Fed. R. Crim. P. 

11(e) govern the acceptance or rejection 

of such agreements. The Commission 

will collect data on the courts’ plea 

practices and will analyze this 

information to determine when and why 

the courts accept or reject plea 

agreements and whether plea agreement 

practices are undermining the intent of 

the Sentencing Reform Act. In light of 

this information and analysis, the 

Commission will seek to further regulate 

the plea agreement process as 

appropriate. Importantly, if the policy 

statements relating to plea agreements 

are followed, circumvention of the 

Sentencing Reform Act and the 

guidelines should not occur. 

The Commission expects the 

guidelines to have a positive, 

rationalizing impact upon plea 

agreements for two reasons. First, the 

guidelines create a clear, definite 

expectation in respect to the sentence 

that a court will impose if a trial takes 

place. In the event a prosecutor and 

defense attorney explore the possibility 

of a negotiated plea, they will no longer 

work in the dark. This fact alone should 

help to reduce irrationality in respect to 

actual sentencing outcomes. Second, the 

guidelines create a norm to which 

courts will likely refer when they decide 

whether, under Rule 11(e), to accept or 

to reject a plea agreement or 

recommendation. 

(d) Probation and Split Sentences 

The statute provides that the 

guidelines are to ‘reflect the general 

appropriateness of imposing a sentence 

other than imprisonment in cases in 

which the defendant is a first offender 

who has not been convicted of a crime 

of violence or an otherwise serious 

offense . . . .’ 28 U.S.C. 994(j). Under 

pre-guidelines sentencing practice, 

courts sentenced to probation an 

inappropriately high percentage of 

offenders guilty of certain economic 

crimes, such as theft, tax evasion, 

antitrust offenses, insider trading, fraud, 

and embezzlement, that in the 

Commission’s view are ‘serious.’ 

The Commission’s solution to this 

problem has been to write guidelines 

that classify as serious many offenses for 

which probation previously was 

frequently given and provide for at least 

a short period of imprisonment in such 

cases. The Commission concluded that 

the definite prospect of prison, even 

though the term may be short, will serve 

as a significant deterrent, particularly 


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when compared with pre-guidelines 

practice where probation, not prison, 

was the norm. 

More specifically, the guidelines work 

as follows in respect to a first offender. 

For offense levels one through eight, the 

sentencing court may elect to sentence 

the offender to probation (with or 

without confinement conditions) or to a 

prison term. For offense levels nine and 

ten, the court may substitute probation 

for a prison term, but the probation 

must include confinement conditions 

(community confinement, intermittent 

confinement, or home detention). For 

offense levels eleven and twelve, the 

court must impose at least one-half the 

minimum confinement sentence in the 

form of prison confinement, the 

remainder to be served on supervised 

release with a condition of community 

confinement or home detention.* The 

Commission, of course, has not dealt 

with the single acts of aberrant behavior 

that still may justify probation at higher 

offense levels through departures.** 

* Note: The Commission expanded 

Zones B and C of the Sentencing Table 

in 2010 to provide a greater range of 

sentencing options to courts with 

respect to certain offenders. (See USSG 

App. C, amendment 738.) In 2018, the 

Commission added a new application 

note to the Commentary to § 5C1.1 

(Imposition of a Term of Imprisonment), 

stating that if a defendant is a 

‘nonviolent first offender and the 

applicable guideline range is in Zone A 

or B of the Sentencing Table, the court 

should consider imposing a sentence 

other than a sentence of imprisonment.’ 

(See USSG App. C, amendment 801.) In 

2023, the Commission added a new 

Chapter Four guideline, at § 4C1.1 

(Adjustment for Certain Zero-Point 

Offenders), providing a decrease of 2 

levels from the offense level determined 

under Chapters Two and Three for 

‘zero-point’ offenders who meet certain 

criteria. In addition, the Commission 

further amended the Commentary to 

§ 5C1.1 to address the alternatives to 

incarceration available to ‘zero-point’ 

offenders by revising the application 

note in § 5C1.1 that addressed 

‘nonviolent first offenders’ to focus on 

‘zero-point’ offenders. (See USSG App. 

C, amendment 821.) 

** Note: Although the Commission 

had not addressed ‘single acts of 

aberrant behavior’ at the time the 

Introduction to the Guidelines Manual 

originally was written, it subsequently 

addressed the issue in Amendment 603, 

effective November 1, 2000. (See USSG 

App. C, amendment 603.) 

(e) Multi-Count Convictions 

The Commission, like several state 

sentencing commissions, has found it 

particularly difficult to develop 

guidelines for sentencing defendants 

convicted of multiple violations of law, 

each of which makes up a separate 

count in an indictment. The difficulty is 

that when a defendant engages in 

conduct that causes several harms, each 

additional harm, even if it increases the 

extent to which punishment is 

warranted, does not necessarily warrant 

a proportionate increase in punishment. 

A defendant who assaults others during 

a fight, for example, may warrant more 

punishment if he injures ten people 

than if he injures one, but his conduct 

does not necessarily warrant ten times 

the punishment. If it did, many of the 

simplest offenses, for reasons that are 

often fortuitous, would lead to 

sentences of life imprisonment— 

sentences that neither just deserts nor 

crime control theories of punishment 

would justify. 

Several individual guidelines provide 

special instructions for increasing 

punishment when the conduct that is 

the subject of that count involves 

multiple occurrences or has caused 

several harms. The guidelines also 

provide general rules for aggravating 

punishment in light of multiple harms 

charged separately in separate counts. 

These rules may produce occasional 

anomalies, but normally they will 

permit an appropriate degree of 

aggravation of punishment for multiple 

offenses that are the subjects of separate 

counts. 

These rules are set out in Chapter 

Three, Part D (Multiple Counts). They 

essentially provide: (1) when the 

conduct involves fungible items (e.g., 

separate drug transactions or thefts of 

money), the amounts are added and the 

guidelines apply to the total amount; (2) 

when nonfungible harms are involved, 

the offense level for the most serious 

count is increased (according to a 

diminishing scale) to reflect the 

existence of other counts of conviction. 

The guidelines have been written in 

order to minimize the possibility that an 

arbitrary casting of a single transaction 

into several counts will produce a 

longer sentence. In addition, the 

sentencing court will have adequate 

power to prevent such a result through 

departures. 

(f) Regulatory Offenses 

Regulatory statutes, though primarily 

civil in nature, sometimes contain 

criminal provisions in respect to 

particularly harmful activity. Such 

criminal provisions often describe not 

only substantive offenses, but also more 

technical, administratively-related 

offenses such as failure to keep accurate 

records or to provide requested 

information. These statutes pose two 

problems: first, which criminal 

regulatory provisions should the 

Commission initially consider, and 

second, how should it treat technical or 

administratively-related criminal 

violations? 

In respect to the first problem, the 

Commission found that it could not 

comprehensively treat all regulatory 

violations in the initial set of guidelines. 

There are hundreds of such provisions 

scattered throughout the United States 

Code. To find all potential violations 

would involve examination of each 

individual federal regulation. Because of 

this practical difficulty, the Commission 

sought to determine, with the assistance 

of the Department of Justice and several 

regulatory agencies, which criminal 

regulatory offenses were particularly 

important in light of the need for 

enforcement of the general regulatory 

scheme. The Commission addressed 

these offenses in the initial guidelines. 

In respect to the second problem, the 

Commission has developed a system for 

treating technical recordkeeping and 

reporting offenses that divides them into 

four categories. First, in the simplest of 

cases, the offender may have failed to 

fill out a form intentionally, but without 

knowledge or intent that substantive 

harm would likely follow. He might fail, 

for example, to keep an accurate record 

of toxic substance transport, but that 

failure may not lead, nor be likely to 

lead, to the release or improper 

handling of any toxic substance. 

Second, the same failure may be 

accompanied by a significant likelihood 

that substantive harm will occur; it may 

make a release of a toxic substance more 

likely. Third, the same failure may have 

led to substantive harm. Fourth, the 

failure may represent an effort to 

conceal a substantive harm that has 

occurred. 

The structure of a typical guideline 

for a regulatory offense provides a low 

base offense level (e.g., 6) aimed at the 

first type of recordkeeping or reporting 

offense. Specific offense characteristics 

designed to reflect substantive harms 

that do occur in respect to some 

regulatory offenses, or that are likely to 

occur, increase the offense level. A 

specific offense characteristic also 

provides that a recordkeeping or 

reporting offense that conceals a 

substantive offense will have the same 

offense level as the substantive offense. 


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(g) Sentencing Ranges 

In determining the appropriate 

sentencing ranges for each offense, the 

Commission estimated the average 

sentences served within each category 

under the pre-guidelines sentencing 

system. It also examined the sentences 

specified in federal statutes, in the 

parole guidelines, and in other relevant, 

analogous sources. The Commission’s 

Supplementary Report on the Initial 

Sentencing Guidelines (1987) contains a 

comparison between estimates of preguidelines sentencing practice and 

sentences under the guidelines. 

While the Commission has not 

considered itself bound by preguidelines sentencing practice, it has 

not attempted to develop an entirely 

new system of sentencing on the basis 

of theory alone. Guideline sentences, in 

many instances, will approximate 

average pre-guidelines practice and 

adherence to the guidelines will help to 

eliminate wide disparity. For example, 

where a high percentage of persons 

received probation under pre-guidelines 

practice, a guideline may include one or 

more specific offense characteristics in 

an effort to distinguish those types of 

defendants who received probation from 

those who received more severe 

sentences. In some instances, short 

sentences of incarceration for all 

offenders in a category have been 

substituted for a pre-guidelines 

sentencing practice of very wide 

variability in which some defendants 

received probation while others 

received several years in prison for the 

same offense. Moreover, inasmuch as 

those who pleaded guilty under preguidelines practice often received lesser 

sentences, the guidelines permit the 

court to impose lesser sentences on 

those defendants who accept 

responsibility for their misconduct. For 

defendants who provide substantial 

assistance to the government in the 

investigation or prosecution of others, a 

downward departure may be warranted. 

The Commission has also examined 

its sentencing ranges in light of their 

likely impact upon prison population. 

Specific legislation, such as the AntiDrug Abuse Act of 1986 and the career 

offender provisions of the Sentencing 

Reform Act of 1984 (28 U.S.C. 994(h)), 

required the Commission to promulgate 

guidelines that will lead to substantial 

prison population increases. These 

increases will occur irrespective of the 

guidelines. The guidelines themselves, 

insofar as they reflect policy decisions 

made by the Commission (rather than 

legislated mandatory minimum or 

career offender sentences), are projected 

to lead to an increase in prison 

population that computer models, 

produced by the Commission and the 

Bureau of Prisons in 1987, estimated at 

approximately 10 percent over a period 

of ten years. 

(h) The Sentencing Table 

The Commission has established a 

sentencing table that for technical and 

practical reasons contains 43 levels. 

Each level in the table prescribes ranges 

that overlap with the ranges in the 

preceding and succeeding levels. By 

overlapping the ranges, the table should 

discourage unnecessary litigation. Both 

prosecution and defense will realize 

that the difference between one level 

and another will not necessarily make a 

difference in the sentence that the court 

imposes. Thus, little purpose will be 

served in protracted litigation trying to 

determine, for example, whether 

$10,000 or $11,000 was obtained as a 

result of a fraud. At the same time, the 

levels work to increase a sentence 

proportionately. A change of six levels 

roughly doubles the sentence 

irrespective of the level at which one 

starts. The guidelines, in keeping with 

the statutory requirement that the 

maximum of any range cannot exceed 

the minimum by more than the greater 

of 25 percent or six months (28 U.S.C. 

994(b)(2)), permit courts to exercise the 

greatest permissible range of sentencing 

discretion. The table overlaps offense 

levels meaningfully, works 

proportionately, and at the same time 

preserves the maximum degree of 

allowable discretion for the court within 

each level. 

Similarly, many of the individual 

guidelines refer to tables that correlate 

amounts of money with offense levels. 

These tables often have many rather 

than a few levels. Again, the reason is 

to minimize the likelihood of 

unnecessary litigation. If a money table 

were to make only a few distinctions, 

each distinction would become more 

important and litigation over which 

category an offender fell within would 

become more likely. Where a table has 

many small monetary distinctions, it 

minimizes the likelihood of litigation 

because the precise amount of money 

involved is of considerably less 

importance. 

5. A Concluding Note 

The Commission emphasizes that it 

drafted the initial guidelines with 

considerable caution. It examined the 

many hundreds of criminal statutes in 

the United States Code. It began with 

those that were the basis for a 

significant number of prosecutions and 

sought to place them in a rational order. 

It developed additional distinctions 

relevant to the application of these 

provisions and it applied sentencing 

ranges to each resulting category. In 

doing so, it relied upon pre-guidelines 

sentencing practice as revealed by its 

own statistical analyses based on 

summary reports of some 40,000 

convictions, a sample of 10,000 

augmented presentence reports, the 

parole guidelines, and policy 

judgments. 

The Commission recognizes that some 

will criticize this approach as overly 

cautious, as representing too little a 

departure from pre-guidelines 

sentencing practice. Yet, it will cure 

wide disparity. The Commission is a 

permanent body that can amend the 

guidelines each year. Although the data 

available to it, like all data, are 

imperfect, experience with the 

guidelines will lead to additional 

information and provide a firm 

empirical basis for consideration of 

revisions. 

Finally, the guidelines will apply to 

more than 90 percent of all felony and 

Class A misdemeanor cases in the 

federal courts. Because of time 

constraints and the nonexistence of 

statistical information, some offenses 

that occur infrequently are not 

considered in the guidelines. Their 

exclusion does not reflect any judgment 

regarding their seriousness and they 

will be addressed as the Commission 

refines the guidelines over time. 

2. Continuing Evolution and Role of the 

Guidelines 

The Sentencing Reform Act of 1984 

changed the course of federal 

sentencing. Among other things, the Act 

created the United States Sentencing 

Commission as an independent agency 

in the Judicial Branch, and directed it to 

develop guidelines and policy 

statements for sentencing courts to use 

when sentencing offenders convicted of 

federal crimes. Moreover, it empowered 

the Commission with ongoing 

responsibilities to monitor the 

guidelines, submit to Congress 

appropriate modifications of the 

guidelines and recommended changes 

in criminal statutes, and establish 

education and research programs. The 

mandate rested on congressional 

awareness that sentencing is a dynamic 

field that requires continuing review by 

an expert body to revise sentencing 

policies, in light of application 

experience, as new criminal statutes are 

enacted, and as more is learned about 

what motivates and controls criminal 

behavior. 

This statement finds resonance in a 

line of Supreme Court cases that, taken 

together, echo two themes. The first 


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theme is that the guidelines are the 

product of a deliberative process that 

seeks to embody the purposes of 

sentencing set forth in the Sentencing 

Reform Act, and as such they continue 

to play an important role in the 

sentencing court’s determination of an 

appropriate sentence in a particular 

case. The Supreme Court alluded to this 

in Mistretta v. United States, 488 U.S. 

361 (1989), which upheld the 

constitutionality of both the federal 

sentencing guidelines and the 

Commission against nondelegation and 

separation of powers challenges. 

Therein the Court stated: 

Developing proportionate penalties 

for hundreds of different crimes by a 

virtually limitless array of offenders is 

precisely the sort of intricate, laborintensive task for which delegation to an 

expert body is especially appropriate. 

Although Congress has delegated 

significant discretion to the Commission 

to draw judgments from its analysis of 

existing sentencing practice and 

alternative sentencing models, . . . [w]e 

have no doubt that in the hands of the 

Commission ‘the criteria which 

Congress has supplied are wholly 

adequate for carrying out the general 

policy and purpose’ of the Act. 

Id. at 379 (internal quotation marks 

and citations omitted). 

The continuing importance of the 

guidelines in federal sentencing was 

further acknowledged by the Court in 

United States v. Booker, 543 U.S. 220 

(2005), even as that case rendered the 

guidelines advisory in nature. In 

Booker, the Court held that the 

imposition of an enhanced sentence 

under the federal sentencing guidelines 

based on the sentencing judge’s 

determination of a fact (other than a 

prior conviction) that was not found by 

the jury or admitted by the defendant 

violated the Sixth Amendment. The 

Court reasoned that an advisory 

guideline system, while lacking the 

mandatory features that Congress 

enacted, retains other features that help 

to further congressional objectives, 

including providing certainty and 

fairness in meeting the purposes of 

sentencing, avoiding unwarranted 

sentencing disparities, and maintaining 

sufficient flexibility to permit 

individualized sentences when 

warranted. The Court concluded that an 

advisory guideline system would 

‘continue to move sentencing in 

Congress’ preferred direction, helping to 

avoid excessive sentencing disparities 

while maintaining flexibility sufficient 

to individualize sentences where 

necessary.’ Id. at 264–65. An advisory 

guideline system continues to assure 

transparency by requiring that sentences 

be based on articulated reasons stated in 

open court that are subject to appellate 

review. An advisory guideline system 

also continues to promote certainty and 

predictability in sentencing, thereby 

enabling the parties to better anticipate 

the likely sentence based on the 

individualized facts of the case. 

The continuing importance of the 

guidelines in the sentencing 

determination is predicated in large part 

on the Sentencing Reform Act’s intent 

that, in promulgating guidelines, the 

Commission must take into account the 

purposes of sentencing as set forth in 18 

U.S.C. 3553(a). See 28 U.S.C. 994(f), 

991(b)(1). The Supreme Court reinforced 

this view in Rita v. United States, 551 

U.S. 338 (2007), which held that a court 

of appeals may apply a presumption of 

reasonableness to a sentence imposed 

by a district court within a properly 

calculated guideline range without 

violating the Sixth Amendment. In Rita, 

the Court relied heavily on the 

complementary roles of the Commission 

and the sentencing court in federal 

sentencing, stating: 

[T]he presumption reflects the nature 

of the Guidelines-writing task that 

Congress set for the Commission and the 

manner in which the Commission 

carried out that task. In instructing both 

the sentencing judge and the 

Commission what to do, Congress 

referred to the basic sentencing 

objectives that the statute sets forth in 

18 U.S.C. 3553(a) . . . . The provision 

also tells the sentencing judge to 

‘impose a sentence sufficient, but not 

greater than necessary, to comply with’ 

the basic aims of sentencing as set out 

above. Congressional statutes then tell 

the Commission to write Guidelines that 

will carry out these same § 3553(a) 

objectives. 

Id. at 347–48 (emphasis in original). 

The Court concluded that ‘[t]he upshot 

is that the sentencing statutes envision 

both the sentencing judge and the 

Commission as carrying out the same 

basic § 3553(a) objectives, the one, at 

retail, the other at wholesale[,]’ id. at 

348, and that the Commission’s process 

for promulgating guidelines results in ‘a 

set of Guidelines that seek to embody 

the § 3553(a) considerations, both in 

principle and in practice.’ Id. at 350. 

Consequently, district courts are 

required to properly calculate and 

consider the guidelines when 

sentencing, even in an advisory 

guideline system. See 18 U.S.C. 

3553(a)(4), (a)(5); Booker, 543 U.S. at 

264 (‘The district courts, while not 

bound to apply the Guidelines, must 

. . . take them into account when 

sentencing.’); Rita, 551 U.S. at 351 

(stating that a district court should begin 

all sentencing proceedings by correctly 

calculating the applicable Guidelines 

range); Gall v. United States, 552 U.S. 

38, 49 (2007) (‘As a matter of 

administration and to secure nationwide 

consistency, the Guidelines should be 

the starting point and the initial 

benchmark.’). The district court, in 

determining the appropriate sentence in 

a particular case, therefore, must 

consider the properly calculated 

guideline range, the grounds for 

departure provided in the policy 

statements, and then the factors under 

18 U.S.C. 3553(a). See Rita, 551 U.S. at 

351. The appellate court engages in a 

two-step process upon review. The 

appellate court ‘first ensure[s] that the 

district court committed no significant 

procedural error, such as failing to 

calculate (or improperly calculating) the 

Guidelines range . . . [and] then 

consider[s] the substantive 

reasonableness of the sentence imposed 

under an abuse-of-discretion standard[,] 

. . . tak[ing] into account the totality of 

the circumstances, including the extent 

of any variance from the Guidelines 

range.’ Gall, 552 U.S. at 51. 

The second and related theme 

resonant in this line of Supreme Court 

cases is that, as contemplated by the 

Sentencing Reform Act, the guidelines 

are evolutionary in nature. They are the 

product of the Commission’s fulfillment 

of its statutory duties to monitor federal 

sentencing law and practices, to seek 

public input on the operation of the 

guidelines, and to revise the guidelines 

accordingly. As the Court acknowledged 

in Rita: 

The Commission’s work is ongoing. 

The statutes and the Guidelines 

themselves foresee continuous 

evolution helped by the sentencing 

courts and courts of appeals in that 

process. The sentencing courts, 

applying the Guidelines in individual 

cases may depart (either pursuant to the 

Guidelines or, since Booker, by 

imposing a non-Guidelines sentence). 

The judges will set forth their reasons. 

The Courts of Appeals will determine 

the reasonableness of the resulting 

sentence. The Commission will collect 

and examine the results. In doing so, it 

may obtain advice from prosecutors, 

defenders, law enforcement groups, 

civil liberties associations, experts in 

penology, and others. And it can revise 

the Guidelines accordingly. 

Rita, 551 U.S. at 350; see also Booker, 

543 U.S. at 264 (‘[T]he Sentencing 

Commission remains in place, writing 

Guidelines, collecting information about 

actual district court sentencing 

decisions, undertaking research, and 

revising the Guidelines accordingly.’); 

Gall, 552 U.S. at 46 (‘[E]ven though the 


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Guidelines are advisory rather than 

mandatory, they are, as we pointed out 

in Rita, the product of careful study 

based on extensive empirical evidence 

derived from the review of thousands of 

individual sentencing decisions.’). 

Provisions of the Sentencing Reform 

Act promote and facilitate this 

evolutionary process. For example, 

pursuant to 28 U.S.C. 994(x), the 

Commission publishes guideline 

amendment proposals in the Federal 

Register and conducts hearings to solicit 

input on those proposals from experts 

and other members of the public. 

Pursuant to 28 U.S.C. 994(o), the 

Commission periodically reviews and 

revises the guidelines in consideration 

of comments it receives from members 

of the federal criminal justice system, 

including the courts, probation officers, 

the Department of Justice, the Bureau of 

Prisons, defense attorneys and the 

federal public defenders, and in 

consideration of data it receives from 

sentencing courts and other sources. 

Statutory mechanisms such as these 

bolster the Commission’s ability to take 

into account fully the purposes of 

sentencing set forth in 18 U.S.C. 

3553(a)(2) in its promulgation of the 

guidelines. 

Congress retains authority to require 

certain sentencing practices and may 

exercise its authority through specific 

directives to the Commission with 

respect to the guidelines. As the 

Supreme Court noted in Kimbrough v. 

United States, 552 U.S. 85 (2007), 

‘Congress has shown that it knows how 

to direct sentencing practices in express 

terms. For example, Congress has 

specifically required the Sentencing 

Commission to set Guideline sentences 

for serious recidivist offenders ‘at or 

near’ the statutory maximum.’ Id. at 103; 

28 U.S.C. 994(h). 

As envisioned by Congress, 

implemented by the Commission, and 

reaffirmed by the Supreme Court, the 

guidelines are the product of a 

deliberative and dynamic process that 

seeks to embody within federal 

sentencing policy the purposes of 

sentencing set forth in the Sentencing 

Reform Act. As such, the guidelines 

continue to be a key component of 

federal sentencing and to play an 

important role in the sentencing court’s 

determination of an appropriate 

sentence in any particular case. 

3. Authority 

§ 1A3.1. Authority 

The guidelines, policy statements, 

and commentary set forth in this 

Guidelines Manual, including 

amendments thereto, are promulgated 

by the United States Sentencing 

Commission pursuant to: (1) section 

994(a) of title 28, United States Code; 

and (2) with respect to guidelines, 

policy statements, and commentary 

promulgated or amended pursuant to 

specific congressional directive, 

pursuant to the authority contained in 

that directive in addition to the 

authority under section 994(a) of title 

28, United States Code.’’; 

and inserting the following: 

‘‘Part A—Introduction and Authority 

Introductory Commentary 

The United States Sentencing 

Commission (‘Commission’) is an 

independent agency in the judicial 

branch composed of seven voting and 

two non-voting, ex officio members. Its 

principal purpose is to establish 

sentencing policies and practices for the 

federal criminal justice system that will 

assure the ends of justice by 

promulgating detailed guidelines 

prescribing the appropriate sentences 

for offenders convicted of federal 

crimes. This Part provides the statutory 

authority and mission of the 

Commission to promulgate federal 

sentencing guidelines, policy 

statements, and commentary. 

Further information describing the 

historical development and evolution of 

the federal sentencing guidelines is set 

forth in Appendix D of the Guidelines 

Manual. 

1. Authority 

§ 1A1.1. Authority 

The Sentencing Reform Act of 1984 

(Title II of the Comprehensive Crime 

Control Act of 1984) provides for the 

development of guidelines that will 

further the basic purposes of criminal 

punishment: deterrence, incapacitation, 

just punishment, and rehabilitation. The 

Act delegates broad authority to the 

Commission to review and rationalize 

the federal sentencing process. 

The guidelines, policy statements, 

and commentary set forth in this 

Guidelines Manual, including 

amendments thereto, are promulgated 

by the United States Sentencing 

Commission pursuant to: (1) section 

994(a) of title 28, United States Code; 

and (2) with respect to guidelines, 

policy statements, and commentary 

promulgated or amended pursuant to 

specific congressional directive, 

pursuant to the authority contained in 

that directive in addition to the 

authority under section 994(a) of title 

28, United States Code.’’. 

Section 1B1.1(a) is amended— 

by inserting at the beginning the 

following new heading: ‘‘Step One: 

Calculation of Guideline Range and 

Determination of Sentencing 

Requirements and Options under the 

Guidelines Manual.—’’; 

in paragraph 5 by striking ‘‘Apply the 

adjustment as appropriate for the 

defendant’s acceptance of responsibility 

from Part E of Chapter Three’’ and 

inserting ‘‘Apply the adjustment for the 

defendant’s acceptance of responsibility 

and the reduction pursuant to an early 

disposition program, as appropriate, 

from Parts E and F of Chapter Three’’; 

in paragraph 6 by striking ‘‘Part B’’ 

and inserting ‘‘Parts B and C’’; 

and by inserting at the end the 

following new paragraph 9: 

‘‘(9) Apply, as appropriate, Part K of 

Chapter Five.’’. 

Section 1B1.1 is amended by striking 

subsections (b) and (c) as follows: 

‘‘(b) The court shall then consider 

Parts H and K of Chapter Five, Specific 

Offender Characteristics and Departures, 

and any other policy statements or 

commentary in the guidelines that 

might warrant consideration in 

imposing sentence. See 18 U.S.C. 

3553(a)(5). 

(c) The court shall then consider the 

applicable factors in 18 U.S.C. 3553(a) 

taken as a whole. See 18 U.S.C. 

3553(a).’’; 

and inserting the following new 

subsection (b): 

‘‘(b) Step Two: Consideration of 

Factors Set Forth in 18 U.S.C. 3553(a) 

and Related Guidance.—The court shall 

then consider as a whole the additional 

factors identified in 18 U.S.C. 3553(a) 

and the guidance provided in Chapter 

Six to determine the sentence that is 

sufficient, but not greater than 

necessary, to comply with the purposes 

set forth in 18 U.S.C. 3553(a)(2). See 18 

U.S.C. 3553(a).’’. 

The Commentary to § 1B1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 1— 

by striking subparagraph (F) as 

follows: 

‘‘(F) ‘Departure’ means (i) for 

purposes other than those specified in 

subdivision (ii), imposition of a 

sentence outside the applicable 

guideline range or of a sentence that is 

otherwise different from the guideline 

sentence; and (ii) for purposes of 

§ 4A1.3 (Departures Based on 

Inadequacy of Criminal History 

Category), assignment of a criminal 

history category other than the 

otherwise applicable criminal history 

category, in order to effect a sentence 

outside the applicable guideline range. 

‘Depart’ means grant a departure. 


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‘Downward departure’ means 

departure that effects a sentence less 

than a sentence that could be imposed 

under the applicable guideline range or 

a sentence that is otherwise less than 

the guideline sentence. ‘Depart 

downward’ means grant a downward 

departure. 

‘Upward departure’ means departure 

that effects a sentence greater than a 

sentence that could be imposed under 

the applicable guideline range or a 

sentence that is otherwise greater than 

the guideline sentence. ‘Depart upward’ 

means grant an upward departure.’’; 

and by redesignating subparagraphs 

(G) through (M) as subparagraphs (F) 

through (L), respectively. 

The Commentary to § 1B1.1 captioned 

‘‘Background’’ is amended by striking 

the following: 

‘‘The court must impose a sentence 

‘sufficient, but not greater than 

necessary,’ to comply with the purposes 

of sentencing set forth in 18 U.S.C. 

3553(a)(2). See 18 U.S.C. 3553(a). 

Subsections (a), (b), and (c) are 

structured to reflect the three-step 

process used in determining the 

particular sentence to be imposed. If, 

after step (c), the court imposes a 

sentence that is outside the guidelines 

framework, such a sentence is 

considered a ‘variance’. See Irizarry v. 

United States, 553 U.S. 708, 709–16 

(2008) (describing within-range 

sentences and departures as ‘sentences 

imposed under the framework set out in 

the Guidelines’).’’; 

and inserting the following: 

‘‘The court must impose a sentence 

‘sufficient, but not greater than 

necessary,’ to comply with the purposes 

of sentencing set forth in 18 U.S.C. 

3553(a)(2). See 18 U.S.C. 3553(a). This 

guideline is structured to reflect the 

advisory sentencing scheme established 

following the Supreme Court’s decision 

in United States v. Booker, 543 U.S. 220 

(2005), by setting forth both essential 

steps of the court’s inquiry in making 

this determination. 

District courts are required to 

properly calculate and consider the 

guidelines when sentencing. See 18 

U.S.C. 3553(a)(4), (a)(5); Booker, 543 

U.S. at 264 (‘The district courts, while 

not bound to apply the Guidelines, must 

. . . take them into account when 

sentencing.’); Rita v. United States, 551 

U.S. 338, 351 (2007) (stating that a 

district court should begin all 

sentencing proceedings by correctly 

calculating the applicable Guidelines 

range); Gall v. United States, 552 U.S. 

38, 49 (2007) (‘As a matter of 

administration and to secure nationwide 

consistency, the Guidelines should be 

the starting point and the initial 

benchmark.’); Peugh v. United States, 

569 U.S. 530 (2013) (noting that ‘the 

post-Booker federal sentencing system 

adopted procedural measures that make 

the guidelines the ‘lodestone’ of 

sentencing’). Step one sets forth the 

steps for properly calculating the 

guidelines. 

District courts are then required to 

fully and carefully consider the 

additional factors set forth in 18 U.S.C. 

3553(a), which include: (1) the nature 

and circumstances of the offense and 

the history and characteristics of the 

defendant; (2) the need for the sentence 

imposed to meet the purposes of 

sentencing listed in 18 U.S.C. 

3553(a)(2); (3) the kinds of sentence 

available; (4) the need to avoid 

unwarranted sentence disparities among 

defendants with similar records who 

have been found guilty of similar 

conduct; and (5) the need to provide 

restitution to any victims of the offense. 

See Rita, 551 U.S. at 351. Step two, as 

set forth in subsection (b), reflects this 

step of the sentencing process and also 

instructs courts to consider guidance 

provided by the Commission in Chapter 

Six.’’. 

The Commentary to § 1B1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by striking ‘‘the court would be 

forced to use an artificial guideline and 

then depart from it’’ and inserting ‘‘the 

court would be forced to use an artificial 

guideline and then impose a sentence 

that is greater than the otherwise 

applicable guideline range’’; by striking 

‘‘the probation officer might need to 

calculate the robbery guideline to assist 

the court in determining the appropriate 

degree of departure’’ and inserting ‘‘the 

probation officer might need to calculate 

the robbery guideline to assist the court 

in determining an appropriate 

sentence’’; and by striking ‘‘Chapter Six, 

Part B (Plea Agreements)’’ and inserting 

’’ Chapter Seven, Part B (Plea 

Agreements)’’. 

Section 1B1.3(b) is amended in the 

heading by striking ‘‘Five (Determining 

the Sentence)’’ and inserting ‘‘Five 

(Determining the Sentencing Range and 

Options Under the Guidelines)’’. 

The Commentary to § 1B1.3 captioned 

‘‘Application Notes’’ is amended— 

in Note 3(B) by striking ‘‘The 

Commission does not foreclose the 

possibility that there may be some 

unusual set of circumstances in which 

the exclusion of such conduct may not 

adequately reflect the defendant’s 

culpability; in such a case, an upward 

departure may be warranted.’’; 

and in Note 6(B) by striking ‘‘In a case 

in which creation of risk is not 

adequately taken into account by the 

applicable offense guideline, an upward 

departure may be warranted. See 

generally § 1B1.4 (Information to be 

Used in Imposing Sentence); § 5K2.0 

(Grounds for Departure).’’. 

The Commentary to § 1B1.3 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

of the following may be relevant: 

(A) The conduct of members of a 

conspiracy prior to the defendant 

joining the conspiracy, which is not 

otherwise considered as part of the 

defendant’s relevant conduct. 

(B) The applicable guideline does not 

adequately account the risk or danger of 

harm created. 

See §§ 6A1.1; 6A1.3.’’. 

Section 1B1.4 is amended— 

in the heading by striking ‘‘(Selecting 

a Point Within the Guideline Range or 

Departing from the Guidelines)’’; 

and by striking ‘‘In determining the 

sentence to impose within the guideline 

range, or whether a departure from the 

guidelines is warranted’’ and inserting 

‘‘In determining the sentence to 

impose’’. 

The Commentary to 1B1.4 captioned 

‘‘Background’’ is amended by striking 

the following: 

‘‘This section distinguishes between 

factors that determine the applicable 

guideline sentencing range (§ 1B1.3) and 

information that a court may consider in 

imposing a sentence within that range. 

The section is based on 18 U.S.C. 3661, 

which recodifies 18 U.S.C. 3577. The 

recodification of this 1970 statute in 

1984 with an effective date of 1987 (99 

Stat. 1728), makes it clear that Congress 

intended that no limitation would be 

placed on the information that a court 

may consider in imposing an 

appropriate sentence under the future 

guideline sentencing system. A court is 

not precluded from considering 

information that the guidelines do not 

take into account in determining a 

sentence within the guideline range or 

from considering that information in 

determining whether and to what extent 

to depart from the guidelines. For 

example, if the defendant committed 

two robberies, but as part of a plea 

negotiation entered a guilty plea to only 

one, the robbery that was not taken into 

account by the guidelines would 

provide a reason for sentencing at the 

top of the guideline range and may 

provide a reason for an upward 

departure. Some policy statements do, 

however, express a Commission policy 


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that certain factors should not be 

considered for any purpose, or should 

be considered only for limited purposes. 

See, e.g., Chapter Five, Part H (Specific 

Offender Characteristics).’’; 

and inserting the following: 

‘‘This section distinguishes between 

factors that determine the applicable 

guideline sentencing range (§ 1B1.3) and 

information that a court may consider in 

imposing a sentence. The section is 

based on 18 U.S.C. 3661, which 

recodifies 18 U.S.C. 3577. The 

recodification of this 1970 statute in 

1984 with an effective date of 1987 (99 

Stat. 1728), makes it clear that Congress 

intended that no limitation would be 

placed on the information that a court 

may consider in imposing an 

appropriate sentence under the future 

guideline sentencing system. A court is 

not precluded from considering 

information that the guidelines do not 

take into account. For example, if the 

defendant committed two robberies, but 

as part of a plea negotiation entered a 

guilty plea to only one, the robbery that 

was not taken into account by the 

guidelines may provide a reason for 

sentencing at the top of, or above, the 

guideline range. Chapter Six, Part A 

(Consideration of Factors in 18 U.S.C. 

3553(a)) details factors which generally 

are not considered in the calculation of 

the guideline range, but which courts 

regularly consider pursuant to 18 U.S.C. 

3553(a).’’. 

Section 1B1.7 is amended by striking 

‘‘the commentary may suggest 

circumstances which, in the view of the 

Commission, may warrant departure 

from the guidelines’’ and inserting ‘‘the 

commentary may suggest additional 

considerations for the court to take into 

account in determining the appropriate 

sentence to impose pursuant to 18 

U.S.C. 3553(a)’’; and by striking ‘‘such 

commentary may provide guidance in 

assessing the reasonableness of any 

departure from the guidelines’’ and 

inserting ‘‘such commentary may 

provide guidance in determining the 

appropriate sentence to impose’’. 

Section 1B1.8(b)(5) is amended by 

striking ‘‘in determining whether, or to 

what extent, a downward departure 

from the guidelines is warranted 

pursuant to a government motion under 

§ 5K1.1 (Substantial Assistance to 

Authorities)’’ and inserting ‘‘in 

determining whether, or to what extent, 

to impose a sentence that is below the 

otherwise applicable guideline range 

pursuant to a government motion under 

§ 5K1.1 (Substantial Assistance to 

Authorities)’’. 

The Commentary to § 1B1.8 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by striking ‘‘Although the 

guideline itself affects only the 

determination of the guideline range, 

the policy of the Commission, as a 

corollary, is that information prohibited 

from being used to determine the 

applicable guideline range shall not be 

used to depart upward. In contrast, 

subsection (b)(5) provides that 

consideration of such information is 

appropriate in determining whether, 

and to what extent, a downward 

departure is warranted pursuant to a 

government motion under § 5K1.1 

(Substantial Assistance to Authorities); 

e.g., a court may refuse to depart 

downward on the basis of such 

information.’’ and inserting ‘‘Although 

the guideline itself affects only the 

determination of the guideline range, 

the policy of the Commission, as a 

corollary, is that information prohibited 

from being used to determine the 

applicable guideline range shall not be 

used to increase a defendant’s 

applicable guideline range. In contrast, 

subsection (b)(5) provides that 

consideration of such information is 

appropriate in determining whether, or 

to what extent, to impose a sentence 

that is below the otherwise applicable 

guideline range pursuant to a 

government motion under § 5K1.1 

(Substantial Assistance to Authorities). 

For example, a court may refuse to 

impose a sentence that is below the 

otherwise applicable guideline range on 

the basis of such information.’’. 

The Commentary to § 1B1.10 

captioned ‘‘Application Notes’’ is 

amended— 

in Note 1(A) by striking ‘‘(i.e., the 

guideline range that corresponds to the 

offense level and criminal history 

category determined pursuant to 

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

consideration of any departure 

provision in the Guidelines Manual or 

any variance)’’ and inserting ‘‘(i.e., the 

guideline range that corresponds to the 

offense level and criminal history 

category determined pursuant to 

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

consideration of the remaining 

provisions in § 1B1.1)’’; 

and in Note 3 by striking 

‘‘representing a downward departure of 

20 percent’’ and inserting ‘‘representing 

a reduction of 20 percent’’; and by 

striking ‘‘authorizing, upon government 

motion, a downward departure based on 

the defendant’s substantial assistance’’ 

and inserting ‘‘authorizing the court, 

upon government motion, to impose a 

sentence that is below the otherwise 

applicable guideline range based on the 

defendant’s substantial assistance’’. 

Section 1B.12 is amended by striking 

‘‘sufficient to warrant an upward 

departure from that guideline range’’ 

and inserting ‘‘sufficient to warrant 

imposing a sentence that exceeds that 

guideline range’’. 

Chapter Two is amended in the 

Introductory Commentary by inserting 

after ‘‘adjust the offense level upward or 

downward.’’ the following: 

‘‘Additionally, each guideline may 

identify certain conduct not fully 

accounted for in the base offense level 

or specific offense characteristics that 

the district court may choose to 

consider pursuant to the additional 

factors set forth in 18 U.S.C. 3553(a) and 

the guidance set forth in Chapter Six 

(Determining the Sentence Imposed).’’; 

and by striking ‘‘Chapter Four, Part B 

(Career Offenders and Criminal 

Livelihood); and Chapter Five, Part K 

(Departures)’’ and inserting: ‘‘and 

Chapter Four, Part B (Career Offenders 

and Criminal Livelihood). Additionally, 

Chapter Six, Part A (Consideration of 

Factors in 18 U.S.C. 3553(a)) sets forth 

other factors that a court may 

nevertheless consider in determining 

the appropriate sentence in a particular 

case pursuant to 18 U.S.C. 3553(a)’’. 

The Commentary to § 2A1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 2 by striking the following: 

‘‘Imposition of Life Sentence.— 

(A) Offenses Involving Premeditated 

Killing.—In the case of premeditated 

killing, life imprisonment is the 

appropriate sentence if a sentence of 

death is not imposed. A downward 

departure would not be appropriate in 

such a case. A downward departure 

from a mandatory statutory term of life 

imprisonment is permissible only in 

cases in which the government files a 

motion for a downward departure for 

the defendant’s substantial assistance, 

as provided in 18 U.S.C. 3553(e). 

(B) Felony Murder.—If the defendant 

did not cause the death intentionally or 

knowingly, a downward departure may 

be warranted. For example, a downward 

departure may be warranted if in 

robbing a bank, the defendant merely 

passed a note to the teller, as a result of 

which the teller had a heart attack and 

died. The extent of the departure should 

be based upon the defendant’s state of 

mind (e.g., recklessness or negligence), 

the degree of risk inherent in the 

conduct, and the nature of the 

underlying offense conduct. However, 

departure below the minimum guideline 

sentence provided for second degree 

murder in § 2A1.2 (Second Degree 

Murder) is not likely to be appropriate. 

Also, because death obviously is an 

aggravating factor, it necessarily would 

be inappropriate to impose a sentence at 

a level below that which the guideline 

for the underlying offense requires in 

the absence of death.’’; 


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and inserting the following: 

‘‘Offenses Involving Premeditated 

Killing.—In the case of premeditated 

killing, life imprisonment is the 

appropriate sentence if a sentence of 

death is not imposed. If a mandatory 

statutory term of life imprisonment 

applies, a lesser term of imprisonment 

is permissible only in cases in which 

the government files a motion 

pertaining to the defendant’s substantial 

assistance, as provided in 18 U.S.C. 

3553(e).’’. 

The Commentary to § 2A1.1 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Defendant’s Intent in Felony 

Murder Case.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the defendant did not intentionally 

or knowingly cause death in the course 

of the commission of a felony (e.g., 

defendant passed a note to a bank teller 

in the course of a robbery causing the 

teller to have a heart attack) may be 

relevant. See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2A1.2 is 

amended— 

by striking the Commentary captioned 

‘‘Application Note’’ in its entirety as 

follows: 

‘‘Application Note: 

1. Upward Departure Provision.—If 

the defendant’s conduct was 

exceptionally heinous, cruel, brutal, or 

degrading to the victim, an upward 

departure may be warranted. See 

§ 5K2.8 (Extreme Conduct).’’; 

and by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Extreme Conduct.—In determining 

the appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the defendant’s conduct was 

unusually heinous, cruel, brutal, or 

degrading to the victim may be relevant. 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2A2.1 captioned 

‘‘Application Notes’’ is amended— 

in the caption by striking ‘‘Notes’’ and 

inserting ‘‘Note’’; 

and by striking Note 2 as follows: 

‘‘2. Upward Departure Provision.—If 

the offense created a substantial risk of 

death or serious bodily injury to more 

than one person, an upward departure 

may be warranted.’’. 

The Commentary to § 2A2.1 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Substantial Risk of Death or 

Serious Bodily Injury to Multiple 

Victims.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the offense created a substantial 

risk of death or serious bodily injury to 

more than one person may be relevant. 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2A2.4 captioned 

‘‘Application Notes’’ is amended by 

striking Note 3 as follows: 

‘‘3. Upward Departure Provision.— 

The base offense level does not assume 

any significant disruption of 

governmental functions. In situations 

involving such disruption, an upward 

departure may be warranted. See 

§ 5K2.7 (Disruption of Governmental 

Function).’’. 

The Commentary to § 2A2.4 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Disruption of Governmental 

Function.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the defendant’s conduct resulted in 

a significant disruption of a 

governmental function may be relevant. 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2A3.1 captioned 

‘‘Application Notes’’ is amended by 

striking Note 6 as follows: 

‘‘6. Upward Departure Provision.—If a 

victim was sexually abused by more 

than one participant, an upward 

departure may be warranted. See 

§ 5K2.8 (Extreme Conduct).’’. 

The Commentary to § 2A3.1 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Victim Sexually Abused by More 

Than One Participant.—In determining 

the appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that a victim was sexually abused by 

more than one participant may be 

relevant. See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2A3.2 captioned 

‘‘Application Notes’’ is amended by 

striking Note 6 as follows: 

‘‘6. Upward Departure 

Consideration.—There may be cases in 

which the offense level determined 

under this guideline substantially 

understates the seriousness of the 

offense. In such cases, an upward 

departure may be warranted. For 

example, an upward departure may be 

warranted if the defendant committed 

the criminal sexual act in furtherance of 

a commercial scheme such as 

pandering, transporting persons for the 

purpose of prostitution, or the 

production of pornography.’’. 

The Commentary to § 2A3.2 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Underrepresentation of Seriousness 

of the Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the offense level determined under 

this guideline substantially 

underrepresents the seriousness of the 

offense (e.g., the defendant committed 

the criminal sexual act in furtherance of 

a commercial scheme such as 

pandering, transporting persons for the 

purpose of prostitution, or the 

production of pornography) may be 

relevant. See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2A3.6 captioned 

‘‘Application Notes’’ is amended by 

striking Note 4 as follows: 

‘‘4. Upward Departure.—In a case in 

which the guideline sentence is 

determined under subsection (a), a 

sentence above the minimum term 

required by 18 U.S.C. 2250(d) is an 

upward departure from the guideline 

sentence. A departure may be 

warranted, for example, in a case 

involving a sex offense committed 

against a minor or if the offense resulted 

in serious bodily injury to a minor.’’. 

The Commentary to § 2A3.6 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Characteristic: 

1. Sex Offense Against or Serious 

Bodily Injury to a Minor.—In 

determining the appropriate sentence to 

impose pursuant to 18 U.S.C. 3553(a), 

evidence that a sex offense was 

committed against a minor, or resulted 

in serious bodily injury to a minor, may 

be relevant. See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2A5.3 captioned 

‘‘Application Notes’’ is amended— 

in the caption by striking ‘‘Notes’’ and 

inserting ‘‘Note’’; 

and by striking Note 2 as follows: 

‘‘2. If the conduct intentionally or 

recklessly endangered the safety of the 

aircraft or passengers, an upward 

departure may be warranted.’’. 

The Commentary to § 2A5.3 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Endangering the Safety of the 

Aircraft or Passengers.—In determining 

the appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the conduct intentionally or 

recklessly endangered the safety of the 

aircraft or passengers may be relevant. 

See §§ 6A1.1; 6A1.3.’’. 


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The Commentary to § 2A6.1 captioned 

‘‘Application Notes’’ is amended by 

striking Note 4 as follows: 

‘‘4. Departure Provisions.— 

(A) In General.—The Commission 

recognizes that offenses covered by this 

guideline may include a particularly 

wide range of conduct and that it is not 

possible to include all of the potentially 

relevant circumstances in the offense 

level. Factors not incorporated in the 

guideline may be considered by the 

court in determining whether a 

departure from the guidelines is 

warranted. See Chapter Five, Part K 

(Departures). 

(B) Multiple Threats, False Liens or 

Encumbrances, or Victims; Pecuniary 

Harm.—If the offense involved (i) 

substantially more than two threatening 

communications to the same victim, (ii) 

a prolonged period of making harassing 

communications to the same victim, (iii) 

substantially more than two false liens 

or encumbrances against the real or 

personal property of the same victim, 

(iv) multiple victims, or (v) substantial 

pecuniary harm to a victim, an upward 

departure may be warranted.’’. 

The Commentary to § 2A6.1 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Multiple Victims or Multiple Harms 

to Same Victim.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the offense involved (A) 

substantially more than two threatening 

communications to the same victim, (B) 

a prolonged period of making harassing 

communications to the same victim, (C) 

substantially more than two false liens 

or encumbrances against the real or 

personal property of the same victim, 

(D) multiple victims, or (E) substantial 

pecuniary harm to a victim, may be 

relevant. See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2A6.2 captioned 

‘‘Application Notes’’ is amended by 

striking Note 5 as follows: 

‘‘5. If the defendant received an 

enhancement under subsection (b)(1) 

but that enhancement does not 

adequately reflect the extent or 

seriousness of the conduct involved, an 

upward departure may be warranted. 

For example, an upward departure may 

be warranted if the defendant stalked 

the victim on many occasions over a 

prolonged period of time.’’. 

The Commentary to § 2A6.2 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Aggravating Factor Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the offense level determined under 

this guideline does not adequately 

reflect the extent or seriousness of the 

conduct involved (e.g., that the 

defendant stalked the victim on many 

occasions over a prolonged period of 

time) may be relevant. See §§ 6A1.1; 

6A1.3.’’. 

The Commentary to § 2B1.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 8(A) by striking ‘‘If, in a 

particular case, however, more than one 

of the enumerated factors applied, an 

upward departure may be warranted.’’; 

in Note 14(B)(i) by striking ‘‘§ 8A1.1 

(Applicability of Chapter Eight)’’ and 

inserting ‘‘§ 9A1.1 (Applicability of 

Chapter Nine)’’; 

and by striking Note 21 as follows: 

‘‘21. Departure Considerations.— 

(A) Upward Departure 

Considerations.—There may be cases in 

which the offense level determined 

under this guideline substantially 

understates the seriousness of the 

offense. In such cases, an upward 

departure may be warranted. The 

following is a non-exhaustive list of 

factors that the court may consider in 

determining whether an upward 

departure is warranted: 

(i) A primary objective of the offense 

was an aggravating, non-monetary 

objective. For example, a primary 

objective of the offense was to inflict 

emotional harm. 

(ii) The offense caused or risked 

substantial non-monetary harm. For 

example, the offense caused physical 

harm, psychological harm, or severe 

emotional trauma, or resulted in a 

substantial invasion of a privacy interest 

(through, for example, the theft of 

personal information such as medical, 

educational, or financial records). An 

upward departure would be warranted, 

for example, in an 18 U.S.C. 1030 

offense involving damage to a protected 

computer, if, as a result of that offense, 

death resulted. An upward departure 

also would be warranted, for example, 

in a case involving animal enterprise 

terrorism under 18 U.S.C. 43, if, in the 

course of the offense, serious bodily 

injury or death resulted, or substantial 

scientific research or information were 

destroyed. Similarly, an upward 

departure would be warranted in a case 

involving conduct described in 18 

U.S.C. 670 if the offense resulted in 

serious bodily injury or death, including 

serious bodily injury or death resulting 

from the use of the pre-retail medical 

product. 

(iii) The offense involved a substantial 

amount of interest of any kind, finance 

charges, late fees, penalties, amounts 

based on an agreed-upon return or rate 

of return, or other similar costs, not 

included in the determination of loss for 

purposes of subsection (b)(1). 

(iv) The offense created a risk of 

substantial loss beyond the loss 

determined for purposes of subsection 

(b)(1), such as a risk of a significant 

disruption of a national financial 

market. 

(v) In a case involving stolen 

information from a ‘protected 

computer’, as defined in 18 U.S.C. 

1030(e)(2), the defendant sought the 

stolen information to further a broader 

criminal purpose. 

(vi) In a case involving access devices 

or unlawfully produced or unlawfully 

obtained means of identification: 

(I) The offense caused substantial 

harm to the victim’s reputation, or the 

victim suffered a substantial 

inconvenience related to repairing the 

victim’s reputation. 

(II) An individual whose means of 

identification the defendant used to 

obtain unlawful means of identification 

is erroneously arrested or denied a job 

because an arrest record has been made 

in that individual’s name. 

(III) The defendant produced or 

obtained numerous means of 

identification with respect to one 

individual and essentially assumed that 

individual’s identity. 

(B) Upward Departure for Debilitating 

Impact on a Critical Infrastructure.—An 

upward departure would be warranted 

in a case in which subsection 

(b)(19)(A)(iii) applies and the disruption 

to the critical infrastructure(s) is so 

substantial as to have a debilitating 

impact on national security, national 

economic security, national public 

health or safety, or any combination of 

those matters. 

(C) Downward Departure 

Consideration.—There may be cases in 

which the offense level determined 

under this guideline substantially 

overstates the seriousness of the offense. 

In such cases, a downward departure 

may be warranted. 

For example, a securities fraud 

involving a fraudulent statement made 

publicly to the market may produce an 

aggregate loss amount that is substantial 

but diffuse, with relatively small loss 

amounts suffered by a relatively large 

number of victims. In such a case, the 

loss table in subsection (b)(1) and the 

victims table in subsection (b)(2) may 

combine to produce an offense level that 

substantially overstates the seriousness 

of the offense. If so, a downward 

departure may be warranted. 


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(D) Downward Departure for Major 

Disaster or Emergency Victims.—If (i) 

the minimum offense level of level 12 

in subsection (b)(12) applies; (ii) the 

defendant sustained damage, loss, 

hardship, or suffering caused by a major 

disaster or an emergency as those terms 

are defined in 42 U.S.C. 5122; and (iii) 

the benefits received illegally were only 

an extension or overpayment of benefits 

received legitimately, a downward 

departure may be warranted.’’. 

The Commentary to § 2B1.1 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Considerations: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

of the following may be relevant: 

(A) The offense level determined 

under this guideline substantially 

understates the seriousness of the 

offense. 

(B) A primary objective of the offense 

was an aggravating, non-monetary 

objective (e.g., to inflict emotional 

harm). 

(C) The offense caused or risked 

substantial non-monetary harm (e.g., 

physical harm, psychological harm, or 

severe emotional trauma, or resulted in 

a substantial invasion of a privacy 

interest). 

(D) The offense involved a substantial 

amount of interest of any kind, finance 

charges, late fees, penalties, amounts 

based on an agreed-upon return or rate 

of return, or other similar costs, not 

included in the determination of loss. 

(E) The offense created a risk of 

substantial loss beyond the loss 

determination, such as a significant 

disruption of a national financial 

market. 

(F) The offense caused substantial 

harm to the victim’s reputation, or the 

victim suffered a substantial 

inconvenience related to repairing the 

victim’s reputation. 

(G) The application of a particular 

enhancement is premised upon 

alternative factors and more than one of 

the enumerated factors applied (e.g., 

§ 2B1.1(b)(9)). 

(H) The information stolen as part of 

the offense was stolen in furtherance of 

a broader criminal purpose. 

See §§ 6A1.1; 6A1.3. 

2. Mitigating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

of the following may be relevant: 

(A) The offense level determined 

under this guideline substantially 

overstates the seriousness of the offense. 

(B) The offense produces an aggregate 

loss amount that is substantial but 

diffuse, with relatively small loss 

amounts suffered by a relatively large 

number of victims. 

(C) The defendant had little or no gain 

as related to the loss. 

(D) The defendant took steps (such as 

voluntary reporting or cessation, or 

payment of restitution) to mitigate the 

harm from the offense. 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2B1.5 captioned 

‘‘Application Notes’’ is amended by 

striking Note 9 as follows: 

‘‘9. Upward Departure Provision.— 

There may be cases in which the offense 

level determined under this guideline 

substantially understates the 

seriousness of the offense. In such cases, 

an upward departure may be warranted. 

For example, an upward departure may 

be warranted if (A) in addition to 

cultural heritage resources or 

paleontological resources, the offense 

involved theft of, damage to, or 

destruction of, items that are not 

cultural heritage resources (such as an 

offense involving the theft from a 

national cemetery of lawnmowers and 

other administrative property in 

addition to historic gravemarkers or 

other cultural heritage resources) or 

paleontological resources; or (B) the 

offense involved a cultural heritage 

resource that has profound significance 

to cultural identity (e.g., the Statue of 

Liberty or the Liberty Bell).’’. 

The Commentary to § 2B1.5 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Cultural Heritage Resources.—In 

determining the appropriate sentence to 

impose pursuant to 18 U.S.C. 3553(a), 

evidence of the following may be 

relevant: 

(A) The offense level determined 

under this guideline substantially 

understates the seriousness of the 

offense may be relevant. 

(B) The offense also involved theft of, 

damage to, or destruction of, items that 

are not cultural heritage resources (such 

as an offense involving the theft from a 

national cemetery of lawnmowers and 

other administrative property in 

addition to historic gravemarkers or 

other cultural heritage resources) or 

paleontological resources. 

(C) The offense involved a cultural 

heritage resource that has profound 

significance to cultural identity (e.g., the 

Statue of Liberty or the Liberty Bell). 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2B2.1 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Characteristic: 

1. Use of a Weapon.—In determining 

the appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the offense involved the use of a 

weapon may be relevant. See §§ 6A1.1; 

6A1.3.’’. 

The Commentary to § 2B2.1 captioned 

‘‘Background’’ is amended by striking 

‘‘Weapon use would be a ground for 

upward departure.’’. 

The Commentary to § 2B3.1 captioned 

‘‘Application Notes’’ is amended— 

by striking Note 5 as follows: 

‘‘5. If the defendant intended to 

murder the victim, an upward departure 

may be warranted; see § 2A2.1 (Assault 

with Intent to Commit Murder; 

Attempted Murder).’’; 

and by renumbering Note 6 as Note 5. 

The Commentary to § 2B3.1 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Intent to Murder Victim.—In 

determining the appropriate sentence to 

impose pursuant to 18 U.S.C. 3553(a), 

evidence that the defendant intended to 

murder the victim may be relevant. See 

§§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2B3.2 captioned 

‘‘Application Notes’’ is amended by 

striking Notes 7 and 8 as follows: 

‘‘7. If the offense involved the threat 

of death or serious bodily injury to 

numerous victims (e.g., in the case of a 

plan to derail a passenger train or 

poison consumer products), an upward 

departure may be warranted. 

8. If the offense involved organized 

criminal activity, or a threat to a family 

member of the victim, an upward 

departure may be warranted.’’. 

The Commentary to § 2B3.2 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Considerations: 

1. Threat of Death or Serious Bodily 

Injury to Numerous Victims.—In 

determining the appropriate sentence to 

impose pursuant to 18 U.S.C. 3553(a), 

evidence that the offense involved the 

threat of death or serious bodily injury 

to numerous victims (e.g., in the case of 

a plan to derail a passenger train or 

poison consumer products) may be 

relevant. See §§ 6A1.1; 6A1.3. 

2. Organized Criminal Activity.—In 

determining the appropriate sentence to 

impose pursuant to 18 U.S.C. 3553(a), 


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evidence that the offense involved 

organized criminal activity may be 

relevant. See §§ 6A1.1; 6A1.3.’’. 

Section 2B4.1(c)(1) is amended by 

striking ‘‘§ 8C2.4’’ and inserting 

‘‘§ 9C2.4’’. 

The Commentary to § 2B5.3 captioned 

‘‘Application Notes’’ is amended by 

striking Note 5 as follows: 

‘‘5. Departure Considerations.—If the 

offense level determined under this 

guideline substantially understates or 

overstates the seriousness of the offense, 

a departure may be warranted. The 

following is a non-exhaustive list of 

factors that the court may consider in 

determining whether a departure may 

be warranted: 

(A) The offense involved substantial 

harm to the reputation of the copyright 

or trademark owner. 

(B) The offense was committed in 

connection with, or in furtherance of, 

the criminal activities of a national, or 

international, organized criminal 

enterprise. 

(C) The method used to calculate the 

infringement amount is based upon a 

formula or extrapolation that results in 

an estimated amount that may 

substantially exceed the actual 

pecuniary harm to the copyright or 

trademark owner. 

(D) The offense resulted in death or 

serious bodily injury.’’. 

The Commentary to § 2B5.3 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Additional Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

of the following may be relevant: 

(A) The offense involved substantial 

harm to the reputation of the copyright 

or trademark owner. 

(B) The offense was committed in 

connection with, or in furtherance of, 

the criminal activities of a national, or 

international, organized criminal 

enterprise. 

(C) The method used to calculate the 

infringement amount is based upon a 

formula or extrapolation that results in 

an estimated amount that may 

substantially exceed the actual 

pecuniary harm to the copyright or 

trademark owner. 

(D) The offense resulted in death or 

serious bodily injury. 

See §§ 6A1.1; 6A1.3.’’. 

Section 2C1.1(d)(1) is amended by 

striking ‘‘§ 8C2.4’’ and inserting 

‘‘§ 9C2.4’’. 

The Commentary to § 2C1.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 5 by striking ‘‘Chapter Three, 

Parts A–D’’ and inserting ‘‘Chapter 

Three, Parts A–E’’; 

and by striking Note 7 as follows: 

‘‘7. Upward Departure Provisions.—In 

some cases the monetary value of the 

unlawful payment may not be known or 

may not adequately reflect the 

seriousness of the offense. For example, 

a small payment may be made in 

exchange for the falsification of 

inspection records for a shipment of 

defective parachutes or the destruction 

of evidence in a major narcotics case. In 

part, this issue is addressed by the 

enhancements in § 2C1.1(b)(2) and 

(c)(1), (2), and (3). However, in cases in 

which the seriousness of the offense is 

still not adequately reflected, an upward 

departure is warranted. See Chapter 

Five, Part K (Departures). 

In a case in which the court finds that 

the defendant’s conduct was part of a 

systematic or pervasive corruption of a 

governmental function, process, or 

office that may cause loss of public 

confidence in government, an upward 

departure may be warranted. See 

§ 5K2.7 (Disruption of Governmental 

Function).’’. 

The Commentary to § 2C1.1 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Considerations: 

1. Monetary Value of the Unlawful 

Payment.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the monetary value of the unlawful 

payment is not known or evidence that 

the monetary value of the unlawful 

payment does not adequately reflect the 

seriousness of the offense may be 

relevant. See §§ 6A1.1; 6A1.3. 

2. Systematic or Pervasive Corruption 

of Governmental Function.—In 

determining the appropriate sentence to 

impose pursuant to 18 U.S.C. 3553(a), 

evidence that the defendant’s conduct 

was part of a systematic or pervasive 

corruption of a governmental function, 

process, or office that may cause loss of 

public confidence in government may 

be relevant. See §§ 6A1.1; 6A1.3.’’. 

Section 2C1.2(c)(1) is amended by 

striking ‘‘§ 8C2.4’’ and inserting 

‘‘§ 9C2.4’’. 

The Commentary to § 2C1.8 captioned 

‘‘Application Notes’’ is amended by 

striking Note 4 as follows: 

‘‘4. Departure Provision.—In a case in 

which the defendant’s conduct was part 

of a systematic or pervasive corruption 

of a governmental function, process, or 

office that may cause loss of public 

confidence in government, an upward 

departure may be warranted.’’. 

The Commentary to § 2C1.8 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Systematic or Pervasive Corruption 

of Governmental Function.—In 

determining the appropriate sentence to 

impose pursuant to 18 U.S.C. 3553(a), 

evidence that the defendant’s conduct 

was part of a systematic or pervasive 

corruption of a governmental function, 

process, or office that may cause loss of 

public confidence in government may 

be relevant. See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2D1.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 2 by striking the following: 

‘‘An upward departure nonetheless 

may be warranted when the mixture or 

substance counted in the Drug Quantity 

Table is combined with other, noncountable material in an unusually 

sophisticated manner in order to avoid 

detection.’’; 

in Note 10 by striking the following: 

‘‘In the case of liquid LSD (LSD that 

has not been placed onto a carrier 

medium), using the weight of the LSD 

alone to calculate the offense level may 

not adequately reflect the seriousness of 

the offense. In such a case, an upward 

departure may be warranted.’’; 

in Note 18(A) by striking ‘‘In some 

cases, the enhancement under 

subsection (b)(14)(A) may not account 

adequately for the seriousness of the 

environmental harm or other threat to 

public health or safety (including the 

health or safety of law enforcement and 

cleanup personnel). In such cases, an 

upward departure may be warranted.’’; 

in Note 22 by striking the following: 

‘‘Application of Subsection (e)(1).— 

(A) Definition.—For purposes of this 

guideline, ‘sexual offense’ means a 

‘sexual act’ or ‘sexual contact’ as those 

terms are defined in 18 U.S.C. 2246(2) 

and (3), respectively. 

(B) Upward Departure Provision.—If 

the defendant committed a sexual 

offense against more than one 

individual, an upward departure would 

be warranted.’’, 

and inserting the following: 

‘‘Application of Subsection (e)(1).— 

For purposes of this guideline, ‘sexual 

offense’ means a ‘sexual act’ or ‘sexual 

contact’ as those terms are defined in 18 

U.S.C. 2246(2) and (3), respectively.’’; 

in Note 24 by striking ‘‘a lower 

sentence imposed (including a 

downward departure)’’ and inserting ‘‘a 

lower sentence imposed’’; 

and by striking Note 27 as follows: 

‘‘27. Departure Considerations.— 

(A) Downward Departure Based on 

Drug Quantity in Certain Reverse Sting 

Operations.—If, in a reverse sting (an 


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operation in which a government agent 

sells or negotiates to sell a controlled 

substance to a defendant), the court 

finds that the government agent set a 

price for the controlled substance that 

was substantially below the market 

value of the controlled substance, 

thereby leading to the defendant’s 

purchase of a significantly greater 

quantity of the controlled substance 

than his available resources would have 

allowed him to purchase except for the 

artificially low price set by the 

government agent, a downward 

departure may be warranted. 

(B) Upward Departure Based on Drug 

Quantity.—In an extraordinary case, an 

upward departure above offense level 38 

on the basis of drug quantity may be 

warranted. For example, an upward 

departure may be warranted where the 

quantity is at least ten times the 

minimum quantity required for level 38. 

Similarly, in the case of a controlled 

substance for which the maximum 

offense level is less than level 38, an 

upward departure may be warranted if 

the drug quantity substantially exceeds 

the quantity for the highest offense level 

established for that particular controlled 

substance. 

(C) Upward Departure Based on 

Unusually High Purity.—Trafficking in 

controlled substances, compounds, or 

mixtures of unusually high purity may 

warrant an upward departure, except in 

the case of PCP, amphetamine, 

methamphetamine, hydrocodone, or 

oxycodone for which the guideline itself 

provides for the consideration of purity 

(see the footnote to the Drug Quantity 

Table). The purity of the controlled 

substance, particularly in the case of 

heroin, may be relevant in the 

sentencing process because it is 

probative of the defendant’s role or 

position in the chain of distribution. 

Since controlled substances are often 

diluted and combined with other 

substances as they pass down the chain 

of distribution, the fact that a defendant 

is in possession of unusually pure 

narcotics may indicate a prominent role 

in the criminal enterprise and proximity 

to the source of the drugs. As large 

quantities are normally associated with 

high purities, this factor is particularly 

relevant where smaller quantities are 

involved. 

(D) Departure Based on Potency of 

Synthetic Cathinones.—In addition to 

providing converted drug weights for 

specific controlled substances and 

groups of substances, the Drug 

Conversion Tables provide converted 

drug weights for certain classes of 

controlled substances, such as synthetic 

cathinones. In the case of a synthetic 

cathinone that is not specifically 

referenced in this guideline, the 

converted drug weight for the class 

should be used to determine the 

appropriate offense level. However, 

there may be cases in which a 

substantially lesser or greater quantity of 

a synthetic cathinone is needed to 

produce an effect on the central nervous 

system similar to the effect produced by 

a typical synthetic cathinone in the 

class, such as methcathinone or alphaPVP. In such a case, a departure may be 

warranted. For example, an upward 

departure may be warranted in cases 

involving MDPV, a substance of which 

a lesser quantity is usually needed to 

produce an effect on the central nervous 

system similar to the effect produced by 

a typical synthetic cathinone. In 

contrast, a downward departure may be 

warranted in cases involving methylone, 

a substance of which a greater quantity 

is usually needed to produce an effect 

on the central nervous system similar to 

the effect produced by a typical 

synthetic cathinone. 

(E) Departures for Certain Cases 

involving Synthetic Cannabinoids.— 

(i) Departure Based on Concentration 

of Synthetic Cannabinoids.—Synthetic 

cannabinoids are manufactured as 

powder or crystalline substances. The 

concentrated substance is then usually 

sprayed on or soaked into a plant or 

other base material, and trafficked as 

part of a mixture. Nonetheless, there 

may be cases in which the substance 

involved in the offense is a synthetic 

cannabinoid not combined with any 

other substance. In such a case, an 

upward departure would be warranted. 

There also may be cases in which the 

substance involved in the offense is a 

mixture containing a synthetic 

cannabinoid diluted with an unusually 

high quantity of base material. In such 

a case, a downward departure may be 

warranted. 

(ii) Downward Departure Based on 

Potency of Synthetic Cannabinoids.—In 

the case of a synthetic cannabinoid that 

is not specifically referenced in this 

guideline, the converted drug weight for 

the class should be used to determine 

the appropriate offense level. However, 

there may be cases in which a 

substantially greater quantity of a 

synthetic cannabinoid is needed to 

produce an effect on the central nervous 

system similar to the effect produced by 

a typical synthetic cannabinoid in the 

class, such as JWH–018 or AM–2201. In 

such a case, a downward departure may 

be warranted.’’. 

The Commentary to § 2D1.1 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Considerations: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

of the following may be relevant: 

(A) Sophisticated Manner.—The 

mixture or substance counted in the 

Drug Quantity Table is combined with 

other, non-countable material in an 

unusually sophisticated manner in 

order to avoid detection. 

(B) Drug Quantity.—The drug 

quantity used to determine the base 

offense level substantially exceeds the 

quantity for the highest offense level 

established for that particular controlled 

substance. 

(C) Unusual High Purity.—The offense 

involved trafficking in controlled 

substances, compounds, or mixtures of 

unusually high purity, except in the 

case of PCP, amphetamine, 

methamphetamine, hydrocodone, or 

oxycodone, for which the guideline 

itself provides for the consideration of 

purity (see the Notes to Drug Quantity 

Table). 

(D) Environmental Harm or Other 

Threat to Public Health or Safety.—The 

seriousness of the environmental harm 

or other threat to public health or safety 

(including the health or safety of law 

enforcement and cleanup personnel) is 

understated based upon scope or impact 

of the discharge, emission, or release of 

a hazardous or toxic substance. 

(E) LSD.—The potential harm of 

liquid D-Lysergic Acid Diethylamide/ 

Lysergide (LSD) (i.e., LSD that has not 

been placed onto a carrier medium) is 

understated as a result of using the 

weight of the LSD alone to calculate the 

offense level. 

(F) Potency of Synthetic Cathinone.— 

The potency of a synthetic cathinone is 

understated because a substantially 

lesser quantity of a synthetic cathinone 

is needed to produce an effect on the 

central nervous system similar to the 

effect produced by a typical synthetic 

cathinone in the class. 

(G) Unusually High Concentration of 

Synthetic Cannabinoid.—A synthetic 

cannabinoid is sprayed on or soaked 

into a plant or other base material in an 

unusually high concentration or is 

trafficked in a pure form as opposed to 

being combined with another substance. 

See §§ 6A1.1; 6A1.3. 

2. Mitigating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

of the following may be relevant: 

(A) Reversed Sting.—The offense 

involved a reverse sting (i.e., an 

operation in which a government agent 


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sells or negotiates to sell a controlled 

substance to a defendant) in which the 

government agent set a price for the 

controlled substance that was 

substantially below the market value 

resulting in the defendant purchasing a 

significantly greater quantity than 

available resources would have 

otherwise allowed. 

(B) Potency of Synthetic Cathinone or 

Synthetic Cannabinoid.—The potency 

of a synthetic cathinone or synthetic 

cannabinoid is overstated because a 

substantially greater quantity of the 

synthetic cathinone or synthetic 

cannabinoid is needed to produce an 

effect on the central nervous system 

similar to the effect produced by a 

typical synthetic cathinone or synthetic 

cannabinoid in the class. 

(C) Synthetic Cannabinoid Diluted.— 

The substance involved in the offense is 

a mixture containing a synthetic 

cannabinoid diluted with an unusually 

high quantity of base material. 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2D1.5 captioned 

‘‘Application Notes’’ is amended— 

by striking Note 2 as follows: 

‘‘2. If as part of the enterprise the 

defendant sanctioned the use of 

violence, or if the number of persons 

managed by the defendant was 

extremely large, an upward departure 

may be warranted.’’; 

and by renumbering Notes 3 and 4 as 

Notes 2 and 3, respectively. 

The Commentary to § 2D1.5 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the defendant sanctioned the use of 

violence as part of the enterprise, or that 

the number of persons managed by the 

defendant was extremely large, may be 

relevant. See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2D1.7 is 

amended— 

by striking the Commentary captioned 

‘‘Application Note’’ in its entirety as 

follows: 

‘‘Application Note: 

1. The typical case addressed by this 

guideline involves small-scale 

trafficking in drug paraphernalia 

(generally from a retail establishment 

that also sells items that are not 

unlawful). In a case involving a largescale dealer, distributor, or 

manufacturer, an upward departure may 

be warranted. Conversely, where the 

offense was not committed for 

pecuniary gain (e.g., transportation for 

the defendant’s personal use), a 

downward departure may be 

warranted.’’; 

and by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Considerations: 

1. Aggravating Factor for Large-Scale 

Trafficking.—The typical case addressed 

by this guideline involves small-scale 

trafficking in drug paraphernalia 

(generally from a retail establishment 

that also sells items that are not 

unlawful). In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the offense involved a large-scale 

dealer, distributor, or manufacturer may 

be relevant. See §§ 6A1.1; 6A1.3. 

2. Offense Not Committed for 

Pecuniary Gain.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the offense was not committed for 

pecuniary gain (e.g., transportation for 

the defendant’s personal use) may be 

relevant. See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2D1.11 

captioned ‘‘Application Notes’’ is 

amended— 

in Note 1 by striking subparagraph (C) 

as follows: 

‘‘(C) Upward Departure.—In a case 

involving two or more chemicals used 

to manufacture different controlled 

substances, or to manufacture one 

controlled substance by different 

manufacturing processes, an upward 

departure may be warranted if the 

offense level does not adequately 

address the seriousness of the offense.’’; 

and in Note 4 by striking ‘‘In some 

cases, the enhancement under 

subsection (b)(3) may not adequately 

account for the seriousness of the 

environmental harm or other threat to 

public health or safety (including the 

health or safety of law enforcement and 

cleanup personnel). In such cases, an 

upward departure may be warranted.’’. 

The Commentary to § 2D1.11 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

of the following may be relevant: 

(A) The offense level determined 

under this guideline does not 

adequately address the seriousness of 

the offense because the offense involved 

two or more chemicals used to 

manufacture different controlled 

substances, or to manufacture one 

controlled substance by different 

manufacturing processes. 

(B) The seriousness of the 

environmental harm or other threat to 

public health or safety (including the 

health or safety of law enforcement and 

cleanup personnel) is understated based 

upon scope or impact of the discharge, 

emission, or release of a hazardous or 

toxic substance. 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2D1.12 

captioned ‘‘Application Notes’’ is 

amended— 

by striking Note 1 as follows: 

‘‘1. If the offense involved the largescale manufacture, distribution, 

transportation, exportation, or 

importation of prohibited flasks, 

equipment, chemicals, products, or 

material, an upward departure may be 

warranted.’’; 

by redesignating Notes 2, 3, and 4 as 

Notes 1, 2, and 3, respectively; 

and in Note 2 (as so redesignated) by 

striking ‘‘In some cases, the 

enhancement under subsection (b)(2) 

may not adequately account for the 

seriousness of the environmental harm 

or other threat to public health or safety 

(including the health or safety of law 

enforcement and cleanup personnel). In 

such cases, an upward departure may be 

warranted.’’. 

The Commentary to § 2D1.12 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

of the following may be relevant: 

(A) The offense involved the largescale manufacture, distribution, 

transportation, exportation, or 

importation of prohibited flasks, 

equipment, chemicals, products, or 

material. 

(B) The seriousness of the 

environmental harm or other threat to 

public health or safety (including the 

health or safety of law enforcement and 

cleanup personnel) is understated based 

upon scope or impact of the discharge, 

emission, or release of a hazardous or 

toxic substance. 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2D2.1 is 

amended— 

by striking the Commentary captioned 

‘‘Application Note’’ in its entirety as 

follows: 

‘‘Application Note: 

1. The typical case addressed by this 

guideline involves possession of a 

controlled substance by the defendant 

for the defendant’s own consumption. 


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Where the circumstances establish 

intended consumption by a person other 

than the defendant, an upward 

departure may be warranted.’’; 

and by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Intended Consumption by 

Another.—The typical case addressed 

by this guideline involves possession of 

a controlled substance by the defendant 

for the defendant’s own consumption. 

In determining the appropriate sentence 

to impose pursuant to 18 U.S.C. 3553(a), 

evidence establishing intended 

consumption by a person other than the 

defendant may be relevant. See 

§§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2D2.3 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Considerations: 

1. Numerous Persons.—In 

determining the appropriate sentence to 

impose pursuant to 18 U.S.C. 3553(a), 

evidence that the offense resulted in the 

death or serious bodily injury of a large 

number of persons may be relevant. See 

§§ 6A1.1; 6A1.3. 

2. Risk to Passengers.—This guideline 

assumes that the offense involved the 

operation of a common carrier carrying 

a number of passengers (e.g., a bus). In 

determining the appropriate sentence to 

impose pursuant to 18 U.S.C. 3553(a), 

evidence that no or only a few 

passengers were placed at risk may be 

relevant. See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2D2.3 captioned 

‘‘Background’’ is amended by striking 

‘‘The offense levels assume that the 

offense involved the operation of a 

common carrier carrying a number of 

passengers, e.g., a bus. If no or only a 

few passengers were placed at risk, a 

downward departure may be warranted. 

If the offense resulted in the death or 

serious bodily injury of a large number 

of persons, such that the resulting 

offense level under subsection (b) would 

not adequately reflect the seriousness of 

the offense, an upward departure may 

be warranted.’’. 

The Commentary to § 2E1.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 1 by striking ‘‘Chapter Three, 

Parts A, B, C, and D’’ and inserting 

‘‘Chapter Three, Parts A, B, C, D, and 

E’’; 

and in Note 4 by striking ‘‘If this 

treatment produces an anomalous result 

in a particular case, a guideline 

departure may be warranted.’’. 

The Commentary to § 2E1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by striking ‘‘Chapter Three, Parts 

A, B, C, and D’’ and inserting ‘‘Chapter 

Three, Parts A, B, C, D, and E’’. 

The Commentary to § 2E3.1 captioned 

‘‘Application Notes’’ is amended— 

in the caption by striking ‘‘Notes’’ and 

inserting ‘‘Note’’; 

and by striking Note 2 as follows: 

‘‘2. Upward Departure Provision.— 

The base offense levels provided for 

animal fighting ventures in subsection 

(a)(1) and (a)(3) reflect that an animal 

fighting venture involves one or more 

violent fights between animals and that 

a defeated animal often is severely 

injured in the fight, dies as a result of 

the fight, or is killed afterward. 

Nonetheless, there may be cases in 

which the offense level determined 

under this guideline substantially 

understates the seriousness of the 

offense. In such a case, an upward 

departure may be warranted. For 

example, an upward departure may be 

warranted if (A) the offense involved 

extraordinary cruelty to an animal 

beyond the violence inherent in such a 

venture (such as by killing an animal in 

a way that prolongs the suffering of the 

animal); or (B) the offense involved 

animal fighting on an exceptional scale 

(such as an offense involving an 

unusually large number of animals).’’. 

The Commentary to § 2E3.1 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Extraordinary Cruelty or 

Exceptional Scale.—The base offense 

levels provided for animal fighting 

ventures in subsections (a)(1) and (a)(3) 

reflect that an animal fighting venture 

involves one or more violent fights 

between animals and that a defeated 

animal often is severely injured in the 

fight, dies as a result of the fight, or is 

killed afterward. In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

of the following may be relevant: 

(A) The offense involved 

extraordinary cruelty to an animal 

beyond the violence inherent in such a 

venture (such as by killing an animal in 

a way that prolongs the suffering of the 

animal). 

(B) The offense involved animal 

fighting on an exceptional scale (such as 

an offense involving an unusually large 

number of animals). 

See §§ 6A1.1; 6A1.3.’’. 

Section 2E5.1(c)(1) is amended by 

striking ‘‘§ 8C2.4’’ and inserting 

‘‘§ 9C2.4’’. 

The Commentary to § 2G1.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 2 by striking ‘‘Subsection 

(b)(1) provides an enhancement for 

fraud or coercion that occurs as part of 

the offense and anticipates no bodily 

injury. If bodily injury results, an 

upward departure may be warranted. 

See Chapter Five, Part K (Departures)’’ 

and inserting ‘‘Subsection (b)(1) 

provides an enhancement for fraud or 

coercion that occurs as part of the 

offense’’; 

and by striking Note 6 as follows: 

‘‘6. Upward Departure Provision.—If 

the offense involved more than ten 

victims, an upward departure may be 

warranted.’’. 

The Commentary to § 2G1.1 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the offense resulted in bodily injury 

or involved more than ten victims may 

be relevant. See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2G1.3 captioned 

‘‘Application Notes’’ is amended by 

striking Note 7 as follows: 

‘‘7. Upward Departure Provision.—If 

the offense involved more than ten 

minors, an upward departure may be 

warranted.’’. 

The Commentary to § 2G1.3 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. More than Ten Minors.—In 

determining the appropriate sentence to 

impose pursuant to 18 U.S.C. 3553(a), 

evidence that the offense involved more 

than ten minors may be relevant. See 

§§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2G2.1 captioned 

‘‘Application Notes’’ is amended by 

striking Note 8 as follows: 

‘‘8. Upward Departure Provision.—An 

upward departure may be warranted if 

the offense involved more than 10 

minors.’’. 

The Commentary to § 2G2.1 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. More than Ten Minors.—In 

determining the appropriate sentence to 

impose pursuant to 18 U.S.C. 3553(a), 

evidence that the offense involved more 

than ten minors may be relevant. See 

§§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2G2.2 captioned 

‘‘Application Notes’’ is amended— 

in Note 6(B)(i) by striking ‘‘If the 

number of images substantially 

underrepresents the number of minors 

depicted, an upward departure may be 

warranted.’’; 


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in Note 6(B)(ii) by striking ‘‘If the 

length of the visual depiction is 

substantially more than 5 minutes, an 

upward departure may be warranted.’’; 

and by striking Note 9 as follows: 

‘‘9. Upward Departure Provision.—If 

the defendant engaged in the sexual 

abuse or exploitation of a minor at any 

time (whether or not such abuse or 

exploitation occurred during the course 

of the offense or resulted in a conviction 

for such conduct) and subsection (b)(5) 

does not apply, an upward departure 

may be warranted. In addition, an 

upward departure may be warranted if 

the defendant received an enhancement 

under subsection (b)(5) but that 

enhancement does not adequately 

reflect the seriousness of the sexual 

abuse or exploitation involved.’’. 

The Commentary to § 2G2.2 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

of the following may be relevant: 

(A) The number of images involved in 

the offense substantially 

underrepresents the number of minors 

depicted. 

(B) The length of any video, videoclip, movie, or visual depiction 

involved in the offense is substantially 

more than 5 minutes. 

(C) The defendant engaged in the 

sexual abuse or exploitation of a minor 

at any time (whether or not such abuse 

occurred during the course of the 

offense or resulted in a conviction for 

such conduct) and subsection (b)(5) did 

not apply or subsection (b)(5) did apply 

but the enhancement does not 

adequately reflect the seriousness of the 

abuse or exploitation. 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2H2.1 is 

amended— 

by striking the Commentary captioned 

‘‘Application Note’’ in its entirety as 

follows: 

‘‘Application Note: 

1. If the offense resulted in bodily 

injury or significant property damage, or 

involved corrupting a public official, an 

upward departure may be warranted. 

See Chapter Five, Part K (Departures).’’; 

and by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Bodily Injury or Significant 

Property Damage.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the offense resulted in bodily injury 

or significant property damage may be 

relevant. See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2H3.1 captioned 

‘‘Application Notes’’ is amended by 

striking Note 5 as follows: 

‘‘5. Upward Departure.—There may 

be cases in which the offense level 

determined under this guideline 

substantially understates the 

seriousness of the offense. In such a 

case, an upward departure may be 

warranted. The following are examples 

of cases in which an upward departure 

may be warranted: 

(A) The offense involved personal 

information, means of identification, 

confidential phone records information, 

or tax return information of a substantial 

number of individuals. 

(B) The offense caused or risked 

substantial non-monetary harm (e.g., 

physical harm, psychological harm, or 

severe emotional trauma, or resulted in 

a substantial invasion of privacy 

interest) to individuals whose private or 

protected information was obtained.’’. 

The Commentary to § 2H3.1 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

of the following may be relevant: 

(A) The offense involved personal 

information, means of identification, 

confidential phone records information, 

or tax return information of a substantial 

number of individuals. 

(B) The offense caused or risked 

substantial non-monetary harm (e.g., 

physical harm, psychological harm, or 

severe emotional trauma, or resulted in 

a substantial invasion of privacy 

interest) to individuals whose private or 

protected information was obtained. 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2H4.1 captioned 

‘‘Application Notes’’ is amended by 

striking Notes 3 and 4 as follows: 

‘‘3. If the offense involved the holding 

of more than ten victims in a condition 

of peonage or involuntary servitude, an 

upward departure may be warranted. 

4. In a case in which the defendant 

was convicted under 18 U.S.C. 1589(b) 

or 1593A, a downward departure may 

be warranted if the defendant benefitted 

from participating in a venture 

described in those sections without 

knowing that (i.e., in reckless disregard 

of the fact that) the venture had engaged 

in the criminal activity described in 

those sections.’’. 

The Commentary to § 2H4.1 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Considerations: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the offense involved the holding of 

more than ten victims in a condition of 

peonage or involuntary servitude may 

be relevant. See §§ 6A1.1; 6A1.3. 

2. Mitigating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that a defendant convicted under 18 

U.S.C. 1589(b) or 1593A benefitted from 

participating in a venture described in 

those sections without knowing that 

(i.e., in reckless disregard of the fact 

that) the venture had engaged in the 

criminal activity described in those 

sections may be relevant. See §§ 6A1.1; 

6A1.3.’’. 

The Commentary to § 2J1.2 captioned 

‘‘Application Notes’’ is amended— 

by striking Note 4 as follows: 

‘‘4. Upward Departure 

Considerations.—If a weapon was used, 

or bodily injury or significant property 

damage resulted, an upward departure 

may be warranted. See Chapter Five, 

Part K (Departures). In a case involving 

an act of extreme violence (for example, 

retaliating against a government witness 

by throwing acid in the witness’s face) 

or a particularly serious sex offense, an 

upward departure would be 

warranted.’’; 

and by redesignating Note 5 as Note 

4. 

The Commentary to § 2J1.2 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the offense involved any of the 

following may be relevant: 

(A) A weapon was used, or bodily 

injury or significant property damage 

resulted. 

(B) The offense involved an act of 

extreme violence (for example, 

retaliating against a government witness 

by throwing acid in the witness’s face) 

or a particularly serious sex offense. 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2J1.3 captioned 

‘‘Application Notes’’ is amended— 

by striking Note 4 as follows: 

‘‘4. If a weapon was used, or bodily 

injury or significant property damage 


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resulted, an upward departure may be 

warranted. See Chapter Five, Part K 

(Departures).’’; 

and by redesignating Note 5 as Note 

4. 

The Commentary to § 2J1.3 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Weapon Used or Bodily Injury or 

Significant Property Damage 

Resulted.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that a weapon was used, or bodily 

injury or significant property damage 

resulted, may be relevant. See §§ 6A1.1; 

6A1.3.’’. 

The Commentary to § 2J1.6 captioned 

‘‘Application Notes’’ is amended— 

by striking Note 4 as follows: 

‘‘4. If a defendant is convicted of both 

the underlying offense and the failure to 

appear count, and the defendant 

committed additional acts of obstructive 

behavior (e.g., perjury) during the 

investigation, prosecution, or sentencing 

of the instant offense, an upward 

departure may be warranted. The 

upward departure will ensure an 

enhanced sentence for obstructive 

conduct for which no adjustment under 

§ 3C1.1 (Obstructing or Impeding the 

Administration of Justice) is made 

because of the operation of the rules set 

out in Application Note 3.’’; 

and by redesignating Note 5 as Note 

4. 

The Commentary to § 2J1.6 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Additional Acts of Obstructive 

Behavior.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a) in a case 

where the defendant is convicted of 

both the underlying offense and the 

failure to appear count, evidence that 

the defendant committed additional acts 

of obstructive behavior (e.g., perjury) 

during the investigation, prosecution, or 

sentencing of the instant offense may be 

relevant. See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2K1.3 captioned 

‘‘Application Notes’’ is amended— 

by striking Note 10 as follows: 

‘‘10. An upward departure may be 

warranted in any of the following 

circumstances: (A) the quantity of 

explosive materials significantly 

exceeded 1000 pounds; (B) the 

explosive materials were of a nature 

more volatile or dangerous than 

dynamite or conventional powder 

explosives (e.g., plastic explosives); (C) 

the defendant knowingly distributed 

explosive materials to a person under 

twenty-one years of age; or (D) the 

offense posed a substantial risk of death 

or bodily injury to multiple 

individuals.’’; 

by redesignating Note 11 as Note 10; 

and in Note 10 (as so redesignated) by 

striking ‘‘However, where the defendant 

used or possessed a firearm or explosive 

to facilitate another firearms or 

explosives offense (e.g., the defendant 

used or possessed a firearm to protect 

the delivery of an unlawful shipment of 

explosives), an upward departure under 

§ 5K2.6 (Weapons and Dangerous 

Instrumentalities) may be warranted.’’. 

The Commentary to § 2K1.3 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the offense involved any of the 

following may be relevant: 

(A) The quantity of explosive 

materials significantly exceeded 1000 

pounds. 

(B) The explosive materials were of a 

nature more volatile or dangerous than 

dynamite or conventional powder 

explosives (e.g., plastic explosives). 

(C) The defendant knowingly 

distributed explosive materials to a 

person under twenty-one years of age. 

(D) The offense posed a substantial 

risk of death or bodily injury to multiple 

individuals. 

(E) The defendant used or possessed 

a firearm or explosive to facilitate 

another firearms or explosives offense 

(e.g., the defendant used or possessed a 

firearm to protect the delivery of an 

unlawful shipment of explosives). 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2K1.4 captioned 

‘‘Application Notes’’ is amended by 

striking Note 3 as follows: 

‘‘3. Upward Departure Provision.—If 

bodily injury resulted, an upward 

departure may be warranted. See 

Chapter Five, Part K (Departures).’’. 

The Commentary to § 2K1.4 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Bodily Injury Resulted.—In 

determining the appropriate sentence to 

impose pursuant to 18 U.S.C. 3553(a), 

evidence that the offense resulted in 

bodily injury may be relevant. See 

§§ 6A1.1; 6A1.3.’’. 

Section 2K2.1(b)(9)(B) is amended by 

striking ‘‘subsection (b) of § 4A1.3 

(Departures Based on Inadequacy of 

Criminal History Category)’’ and 

inserting ‘‘§ 4A1.3 (Additional 

Considerations Based on Inadequacy of 

Criminal History Category)’’. 

The Commentary to § 2K2.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 7 by striking ‘‘In a case in 

which the cumulative result of the 

increased base offense level and the 

enhancement under subsection (b)(3) 

does not adequately capture the 

seriousness of the offense because of the 

type of destructive device involved, the 

risk to the public welfare, or the risk of 

death or serious bodily injury that the 

destructive device created, an upward 

departure may be warranted. See also 

§§ 5K2.1 (Death), 5K2.2 (Physical 

Injury), and 5K2.14 (Public Welfare).’’; 

by striking Note 11 as follows: 

‘‘11. Upward Departure Provisions.— 

An upward departure may be warranted 

in any of the following circumstances: 

(A) the number of firearms substantially 

exceeded 200; (B) the offense involved 

multiple National Firearms Act 

weapons (e.g., machineguns, destructive 

devices), military type assault rifles, 

non-detectable (‘plastic’) firearms 

(defined at 18 U.S.C. 922(p)); (C) the 

offense involved large quantities of 

armor-piercing ammunition (defined at 

18 U.S.C. 921(a)(17)(B)); or (D) the 

offense posed a substantial risk of death 

or bodily injury to multiple individuals 

(see Application Note 7).’’; 

by redesignating Notes 12, 13, and 14 

as Notes 11, 12, and 13, respectively; 

in Note 12 (as so redesignated)— 

by striking subparagraph (B) as 

follows: 

‘‘(B) Upward Departure Provision.—If 

the defendant transported, transferred, 

sold, or otherwise disposed of, or 

purchased or received with intent to 

transport, transfer, sell, or otherwise 

dispose of, substantially more than 25 

firearms, an upward departure may be 

warranted.’’; 

and by redesignating subparagraph (C) 

as subparagraph (B); 

and in Note 13 (as so redesignated)— 

by striking subparagraph (D) as 

follows: 

‘‘(D) Upward Departure Provision.—In 

a case in which the defendant used or 

possessed a firearm or explosive to 

facilitate another firearms or explosives 

offense (e.g., the defendant used or 

possessed a firearm to protect the 

delivery of an unlawful shipment of 

explosives), an upward departure under 

§ 5K2.6 (Weapons and Dangerous 

Instrumentalities) may be warranted.’’; 

and by redesignating subparagraph (E) 

as subparagraph (D). 


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The Commentary to § 2K2.1 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

of the following may be relevant: 

(A) The offense level determined 

under this guideline does not 

adequately capture the seriousness of 

the offense because of the type of 

destructive device involved, the risk to 

the public welfare, or the risk of death 

or serious bodily injury that the 

destructive device created. 

(B) The offense posed a substantial 

risk of death or bodily injury to multiple 

individuals. 

(C) The number of firearms involved 

in the offense substantially exceeded 

200. 

(D) The defendant transported, 

transferred, sold, or otherwise disposed 

of, or purchased or received with intent 

to transport, transfer, sell, or otherwise 

dispose of, substantially more than 25 

firearms. 

(E) The offense involved multiple 

National Firearms Act weapons (e.g., 

machineguns, destructive devices), 

military type assault rifles, or nondetectable (‘plastic’) firearms (defined at 

18 U.S.C. 922(p)). 

(F) The offense involved large 

quantities of armor-piercing 

ammunition (defined at 18 U.S.C. 

921(a)(17)(B)). 

(G) The defendant used or possessed 

a firearm or explosive to facilitate 

another firearms or explosives offense 

(e.g., the defendant used or possessed a 

firearm to protect the delivery of an 

unlawful shipment of explosives). 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2K2.4 captioned 

‘‘Application Notes’’ is amended— 

in Note 2 by striking the following: 

‘‘Application of Subsection (b).— 

(A) In General.—Sections 924(c) and 

929(a) of title 18, United States Code, 

provide mandatory minimum terms of 

imprisonment (e.g., not less than five 

years). Except as provided in subsection 

(c), in a case in which the defendant is 

convicted under 18 U.S.C. 924(c) or 

§ 929(a), the guideline sentence is the 

minimum term required by the relevant 

statute. Each of 18 U.S.C. 924(c) and 

929(a) also requires that a term of 

imprisonment imposed under that 

section shall run consecutively to any 

other term of imprisonment. 

(B) Upward Departure Provision.—In 

a case in which the guideline sentence 

is determined under subsection (b), a 

sentence above the minimum term 

required by 18 U.S.C. 924(c) or § 929(a) 

is an upward departure from the 

guideline sentence. A departure may be 

warranted, for example, to reflect the 

seriousness of the defendant’s criminal 

history in a case in which the defendant 

is convicted of an 18 U.S.C. 924(c) or 

§ 929(a) offense but is not determined to 

be a career offender under § 4B1.1.’’; 

and inserting the following: 

‘‘Application of Subsection (b).— 

Sections 924(c) and 929(a) of title 18, 

United States Code, provide mandatory 

minimum terms of imprisonment (e.g., 

not less than five years). Except as 

provided in subsection (c), in a case in 

which the defendant is convicted under 

18 U.S.C. 924(c) or § 929(a), the 

guideline sentence is the minimum term 

required by the relevant statute. Each of 

18 U.S.C. 924(c) and 929(a) also requires 

that a term of imprisonment imposed 

under that section shall run 

consecutively to any other term of 

imprisonment.’’; 

and in Note 4 by striking the 

following: 

‘‘In a few cases in which the 

defendant is determined not to be a 

career offender, the offense level for the 

underlying offense determined under 

the preceding paragraphs may result in 

a guideline range that, when combined 

with the mandatory consecutive 

sentence under 18 U.S.C. 844(h), 

§ 924(c), or § 929(a), produces a total 

maximum penalty that is less than the 

maximum of the guideline range that 

would have resulted had there not been 

a count of conviction under 18 U.S.C. 

844(h), § 924(c), or § 929(a) (i.e., the 

guideline range that would have 

resulted if the enhancements for 

possession, use, or discharge of a 

firearm had been applied). In such a 

case, an upward departure may be 

warranted so that the conviction under 

18 U.S.C. 844(h), § 924(c), or § 929(a) 

does not result in a decrease in the total 

punishment. An upward departure 

under this paragraph shall not exceed 

the maximum of the guideline range 

that would have resulted had there not 

been a count of conviction under 18 

U.S.C. 844(h), § 924(c), or § 929(a).’’. 

The Commentary to § 2K2.4 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Seriousness of the Offense.—In 

determining the appropriate sentence to 

impose pursuant to 18 U.S.C. 3553(a), 

evidence that the minimum term 

required by 18 U.S.C. 924(c) or § 929(a) 

understates the seriousness of the 

offense involved (e.g., the underlying 

offense determined under this guideline 

results in a guideline range that, when 

combined with the mandatory 

consecutive sentence under 18 U.S.C. 

844(h), § 924(c), or § 929(a), produces a 

total maximum penalty that is less than 

the maximum of the guideline range 

that would have resulted had otherwise 

applicable Chapter Two enhancements 

for possession, use, or discharge of a 

firearm been applied) may be relevant. 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2K2.5 captioned 

‘‘Application Notes’’ is amended by 

striking Note 4 as follows: 

‘‘4. Where the firearm was 

brandished, discharged, or otherwise 

used, in a federal facility, federal court 

facility, or school zone, and the cross 

reference from subsection (c)(1) does not 

apply, an upward departure may be 

warranted.’’. 

The Commentary to § 2K2.5 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Firearm Brandished, Discharged, or 

Otherwise Used.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a) in a case 

where the cross reference from 

subsection (c)(1) does not apply, 

evidence that the firearm was 

brandished, discharged, or otherwise 

used, in a federal facility, federal court 

facility, or school zone may be relevant. 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2L1.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 4 by striking ‘‘Application 

Note 1(M) of § 1B1.1’’ and inserting 

‘‘Application Note 1(L) of § 1B1.1’’; 

and by striking Note 7 as follows: 

‘‘7. Upward Departure Provisions.— 

An upward departure may be warranted 

in any of the following cases: 

(A) The defendant smuggled, 

transported, or harbored an alien 

knowing that the alien intended to enter 

the United States to engage in 

subversive activity, drug trafficking, or 

other serious criminal behavior. 

(B) The defendant smuggled, 

transported, or harbored an alien the 

defendant knew was inadmissible for 

reasons of security and related grounds, 

as set forth under 8 U.S.C. 1182(a)(3). 

(C) The offense involved substantially 

more than 100 aliens.’’. 

The Commentary to § 2L1.1 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 


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that the offense involved any of the 

following may be relevant: 

(A) The defendant smuggled, 

transported, or harbored an alien 

knowing that the alien intended to enter 

the United States to engage in 

subversive activity, drug trafficking, or 

other serious criminal behavior. 

(B) The defendant smuggled, 

transported, or harbored an alien the 

defendant knew was inadmissible for 

reasons of security and related grounds, 

as set forth under 8 U.S.C. 1182(a)(3). 

(C) The offense involved substantially 

more than 100 aliens. 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2L1.2 captioned 

‘‘Application Notes’’ is amended by 

striking Notes 6, 7, and 8 as follows: 

‘‘6. Departure Based on Seriousness of 

a Prior Offense.—There may be cases in 

which the offense level provided by an 

enhancement in subsection (b)(2) or 

(b)(3) substantially understates or 

overstates the seriousness of the 

conduct underlying the prior offense, 

because (A) the length of the sentence 

imposed does not reflect the seriousness 

of the prior offense; (B) the prior 

conviction is too remote to receive 

criminal history points (see § 4A1.2(e)); 

or (C) the time actually served was 

substantially less than the length of the 

sentence imposed for the prior offense. 

In such a case, a departure may be 

warranted. 

7. Departure Based on Time Served in 

State Custody.—In a case in which the 

defendant is located by immigration 

authorities while the defendant is 

serving time in state custody, whether 

pre- or post-conviction, for a state 

offense, the time served is not covered 

by an adjustment under § 5G1.3(b) and, 

accordingly, is not covered by a 

departure under § 5K2.23 (Discharged 

Terms of Imprisonment). See § 5G1.3(a). 

In such a case, the court may consider 

whether a departure is appropriate to 

reflect all or part of the time served in 

state custody, from the time 

immigration authorities locate the 

defendant until the service of the federal 

sentence commences, that the court 

determines will not be credited to the 

federal sentence by the Bureau of 

Prisons. Any such departure should be 

fashioned to achieve a reasonable 

punishment for the instant offense. 

Such a departure should be 

considered only in cases where the 

departure is not likely to increase the 

risk to the public from further crimes of 

the defendant. In determining whether 

such a departure is appropriate, the 

court should consider, among other 

things, (A) whether the defendant 

engaged in additional criminal activity 

after illegally reentering the United 

States; (B) the seriousness of any such 

additional criminal activity, including 

(1) whether the defendant used violence 

or credible threats of violence or 

possessed a firearm or other dangerous 

weapon (or induced another person to 

do so) in connection with the criminal 

activity, (2) whether the criminal 

activity resulted in death or serious 

bodily injury to any person, and (3) 

whether the defendant was an organizer, 

leader, manager, or supervisor of others 

in the criminal activity; and (C) the 

seriousness of the defendant’s other 

criminal history. 

8. Departure Based on Cultural 

Assimilation.—There may be cases in 

which a downward departure may be 

appropriate on the basis of cultural 

assimilation. Such a departure should 

be considered only in cases where (A) 

the defendant formed cultural ties 

primarily with the United States from 

having resided continuously in the 

United States from childhood, (B) those 

cultural ties provided the primary 

motivation for the defendant’s illegal 

reentry or continued presence in the 

United States, and (C) such a departure 

is not likely to increase the risk to the 

public from further crimes of the 

defendant. 

In determining whether such a 

departure is appropriate, the court 

should consider, among other things, (1) 

the age in childhood at which the 

defendant began residing continuously 

in the United States, (2) whether and for 

how long the defendant attended school 

in the United States, (3) the duration of 

the defendant’s continued residence in 

the United States, (4) the duration of the 

defendant’s presence outside the United 

States, (5) the nature and extent of the 

defendant’s familial and cultural ties 

inside the United States, and the nature 

and extent of such ties outside the 

United States, (6) the seriousness of the 

defendant’s criminal history, and (7) 

whether the defendant engaged in 

additional criminal activity after 

illegally reentering the United States.’’. 

The Commentary to § 2L1.2 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Considerations: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the offense level determined under 

this guideline substantially understates 

the seriousness of the conduct 

underlying the prior offense may be 

relevant because of any of the following 

reasons: 

(A) The length of the sentence 

imposed does not reflect the seriousness 

of the prior offense. 

(B) The prior conviction is too remote 

to receive criminal history points (see 

§ 4A1.2(e)). 

See §§ 6A1.1; 6A1.3. 

2. Mitigating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

of the following may be relevant: 

(A) The offense level determined 

under this guideline overstates the 

seriousness of the conduct underlying 

the prior offense because the time 

actually served was substantially less 

than the length of the sentence imposed 

for the prior offense. 

(B) The defendant is located by 

immigration authorities while the 

defendant is serving time in state 

custody, whether pre- or postconviction, for a state offense and the 

time served is not covered by an 

adjustment under § 5G1.3(b). The court 

may also consider, among other things: 

(i) whether the defendant engaged in 

additional criminal activity after 

illegally reentering the United States; 

(ii) the seriousness of any such 

additional criminal activity, including 

(I) whether the defendant used violence 

or credible threats of violence or 

possessed a firearm or other dangerous 

weapon (or induced another person to 

do so) in connection with the criminal 

activity, (II) whether the criminal 

activity resulted in death or serious 

bodily injury to any person, and (III) 

whether the defendant was an organizer, 

leader, manager, or supervisor of others 

in the criminal activity; and (iii) the 

seriousness of the defendant’s other 

criminal history. 

(C) The defendant formed cultural ties 

primarily with the United States from 

having resided continuously in the 

United States from childhood, and those 

cultural ties provided the primary 

motivation for the defendant’s illegal 

reentry or continued presence in the 

United States. The court may also 

consider, among other things: (i) the age 

in childhood at which the defendant 

began residing continuously in the 

United States; (ii) whether and for how 

long the defendant attended school in 

the United States; (iii) the duration of 

the defendant’s continued residence in 

the United States; (iv) the duration of 

the defendant’s presence outside the 

United States; (v) the nature and extent 

of the defendant’s familial and cultural 

ties inside the United States, and the 

nature and extent of such ties outside 

the United States; (vi) the seriousness of 

the defendant’s criminal history; and 

(vii) whether the defendant engaged in 


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additional criminal activity after 

illegally reentering the United States. 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2L2.1 captioned 

‘‘Application Notes’’ is amended— 

by striking Note 3 as follows: 

‘‘3. Subsection (b)(3) provides an 

enhancement if the defendant knew, 

believed, or had reason to believe that 

a passport or visa was to be used to 

facilitate the commission of a felony 

offense, other than an offense involving 

violation of the immigration laws. If the 

defendant knew, believed, or had reason 

to believe that the felony offense to be 

committed was of an especially serious 

type, an upward departure may be 

warranted.’’; 

by redesignating Note 4 as Note 3; 

and by striking Note 5 as follows: 

‘‘5. If the offense involved 

substantially more than 100 documents, 

an upward departure may be 

warranted.’’. 

The Commentary to § 2L2.1 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the offense involved any of the 

following may be relevant: 

(A) The defendant knew, believed, or 

had reason to believe that a passport or 

visa was to be used to facilitate the 

commission of a felony offense, other 

than an offense involving violation of 

the immigration laws, that was of an 

especially serious type. 

(B) The offense involved substantially 

more than 100 documents. 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2L2.2 captioned 

‘‘Application Notes’’ is amended by 

striking Note 6 as follows: 

‘‘6. Upward Departure Provision.—If 

the defendant fraudulently obtained or 

used a United States passport for the 

purpose of entering the United States to 

engage in terrorist activity, an upward 

departure may be warranted. See 

Application Note 4 of the Commentary 

to § 3A1.4 (Terrorism).’’. 

The Commentary to § 2L2.2 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Entering the United States with 

Purpose to Engage in Terrorist 

Activity.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the defendant fraudulently obtained 

or used a United States passport for the 

purpose of entering the United States to 

engage in terrorist activity may be 

relevant. See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2M3.1 

captioned ‘‘Application Notes’’ is 

amended— 

in the caption by striking ‘‘Notes’’ and 

inserting ‘‘Note’’; 

and by striking Notes 2 and 3 as 

follows: 

‘‘2. The Commission has set the base 

offense level in this subpart on the 

assumption that the information at issue 

bears a significant relation to the 

nation’s security, and that the revelation 

will significantly and adversely affect 

security interests. When revelation is 

likely to cause little or no harm, a 

downward departure may be warranted. 

See Chapter Five, Part K (Departures). 

3. The court may depart from the 

guidelines upon representation by the 

President or his duly authorized 

designee that the imposition of a 

sanction other than authorized by the 

guideline is necessary to protect 

national security or further the 

objectives of the nation’s foreign 

policy.’’. 

The Commentary to § 2M3.1 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Considerations: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), 

representation by the President or his 

duly authorized designee that the 

imposition of a sanction other than 

authorized by the guideline is necessary 

to protect national security or further 

the objectives of the nation’s foreign 

policy may be relevant. See §§ 6A1.1; 

6A1.3. 

2. Mitigating Factors Relating to the 

Offense.—The Commission has set the 

base offense level in this subpart on the 

assumption that the information at issue 

bears a significant relation to the 

nation’s security, and that the revelation 

will significantly and adversely affect 

security interests. In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the revelation is likely to cause 

little or no harm may be relevant. See 

§§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2M4.1 is 

amended— 

by striking the Commentary captioned 

‘‘Application Note’’ in its entirety as 

follows: 

‘‘Application Note: 

1. Subsection (b)(1) does not 

distinguish between whether the offense 

was committed in peacetime or during 

time of war or armed conflict. If the 

offense was committed when persons 

were being inducted for compulsory 

military service during time of war or 

armed conflict, an upward departure 

may be warranted.’’; 

and by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. War or Armed Conflict.—This 

guideline does not distinguish between 

whether the offense was committed in 

peacetime or during time of war or 

armed conflict. In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the offense was committed when 

persons were being inducted for 

compulsory military service during time 

of war or armed conflict may be 

relevant. See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2M5.1 

captioned ‘‘Application Notes’’ is 

amended— 

by striking Notes 1 and 2 as follows: 

‘‘1. In the case of a violation during 

time of war or armed conflict, an 

upward departure may be warranted. 

2. In determining the sentence within 

the applicable guideline range, the court 

may consider the degree to which the 

violation threatened a security interest 

of the United States, the volume of 

commerce involved, the extent of 

planning or sophistication, and whether 

there were multiple occurrences. Where 

such factors are present in an extreme 

form, a departure from the guidelines 

may be warranted. See Chapter Five, 

Part K (Departures).’’; 

and by redesignating Notes 3 and 4 as 

Notes 1 and 2. 

The Commentary to § 2M5.1 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Considerations: 

1. War or Armed Conflict.—In 

determining the appropriate sentence to 

impose pursuant to 18 U.S.C. 3553(a), 

evidence that the offense was 

committed during time of war or armed 

conflict may be relevant. See §§ 6A1.1; 

6A1.3. 

2. Additional Aggravating Factors 

Relating to the Offense.—In determining 

the sentence within the applicable 

guideline range, the degree to which the 

violation threatened a security interest 

of the United States, the volume of 

commerce involved, the extent of 

planning or sophistication, and whether 

there were multiple occurrences may be 

relevant. See §§ 6A1.1; 6A1.3.’’ 

The Commentary to § 2M5.2 

captioned ‘‘Application Notes’’ is 

amended— 

in the caption by striking ‘‘Notes’’ and 

inserting ‘‘Note’’; 


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in Note 1 by striking the following: 

‘‘The base offense level assumes that 

the offense conduct was harmful or had 

the potential to be harmful to a security 

or foreign policy interest of the United 

States. In the unusual case where the 

offense conduct posed no such risk, a 

downward departure may be warranted. 

In the case of a violation during time of 

war or armed conflict, an upward 

departure may be warranted. See 

Chapter Five, Part K (Departures).’’; 

and by striking Note 2 as follows: 

‘‘2. In determining the sentence 

within the applicable guideline range, 

the court may consider the degree to 

which the violation threatened a 

security or foreign policy interest of the 

United States, the volume of commerce 

involved, the extent of planning or 

sophistication, and whether there were 

multiple occurrences. Where such 

factors are present in an extreme form, 

a departure from the guidelines may be 

warranted.’’. 

The Commentary to § 2M5.2 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Considerations: 

1. Aggravating Factors Relating to the 

Offense.—In determining the sentence 

within the applicable guideline range, 

the court may consider the degree to 

which the violation threatened a 

security or foreign policy interest of the 

United States, the volume of commerce 

involved, the extent of planning or 

sophistication, and whether there were 

multiple occurrences. Nonetheless, in 

determining the appropriate sentence to 

impose pursuant to 18 U.S.C. 3553(a), 

evidence that such factors are present in 

an extreme form may be relevant. See 

§§ 6A1.1; 6A1.3. 

2. War or Armed Conflict.—In 

determining the appropriate sentence to 

impose pursuant to 18 U.S.C. 3553(a), 

evidence that the offense was 

committed during time of war or armed 

conflict may be relevant. See §§ 6A1.1; 

6A1.3. 

3. Mitigating Factors Relating to the 

Offense.—This guideline assumes that 

the offense conduct was harmful or had 

the potential to be harmful to a security 

or foreign policy interest of the United 

States. In determining the appropriate 

sentence to impose pursuant to 18 

U.S.C. 3553(a), evidence that the offense 

conduct posed no such risk may be 

relevant. See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2M5.3 

captioned ‘‘Application Notes’’ is 

amended— 

in the caption by striking ‘‘Notes’’ and 

inserting ‘‘Note’’; 

and by striking Note 2 as follows: 

‘‘2. Departure Provisions.— 

(A) In General.—In determining the 

sentence within the applicable 

guideline range, the court may consider 

the degree to which the violation 

threatened a security interest of the 

United States, the volume of the funds 

or other material support or resources 

involved, the extent of planning or 

sophistication, and whether there were 

multiple occurrences. In a case in which 

such factors are present in an extreme 

form, a departure from the guidelines 

may be warranted. See Chapter Five, 

Part K (Departures). 

(B) War or Armed Conflict.—In the 

case of a violation during time of war or 

armed conflict, an upward departure 

may be warranted.’’. 

The Commentary to § 2M5.3 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Considerations: 

1. Aggravating Factors Relating to the 

Offense.—In determining the sentence 

within the applicable guideline range, 

the court may consider the degree to 

which the violation threatened a 

security interest of the United States, 

the volume of the funds or other 

material support or resources involved, 

the extent of planning or sophistication, 

and whether there were multiple 

occurrences. Nonetheless, in 

determining the appropriate sentence to 

impose pursuant to 18 U.S.C. 3553(a), 

evidence that such factors are present in 

an extreme form may be relevant. See 

§§ 6A1.1; 6A1.3. 

2. War or Armed Conflict.—In 

determining the appropriate sentence to 

impose pursuant to 18 U.S.C. 3553(a), 

evidence that the offense was 

committed during time of war or armed 

conflict may be relevant. See §§ 6A1.1; 

6A1.3.’’. 

The Commentary to § 2N1.1 captioned 

‘‘Application Notes’’ is amended— 

in the caption by striking ‘‘Notes’’ and 

inserting ‘‘Note’’; 

by striking Note 1 as follows: 

‘‘1. The base offense level reflects that 

this offense typically poses a risk of 

death or serious bodily injury to one or 

more victims; or causes, or is intended 

to cause, bodily injury. Where the 

offense posed a substantial risk of death 

or serious bodily injury to numerous 

victims, or caused extreme 

psychological injury or substantial 

property damage or monetary loss, an 

upward departure may be warranted. In 

the unusual case in which the offense 

did not cause a risk of death or serious 

bodily injury, and neither caused nor 

was intended to cause bodily injury, a 

downward departure may be 

warranted.’’; 

and by redesignating Note 2 as Note 

1. 

The Commentary to § 2N1.1 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Considerations: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the offense posed a substantial risk 

of death or serious bodily injury to 

numerous victims, or caused extreme 

psychological injury or substantial 

property damage or monetary loss may 

be relevant. See §§ 6A1.1; 6A1.3. 

2. Mitigating Factors Relating to the 

Offense.—This guideline reflects that 

this offense typically poses a risk of 

death or serious bodily injury to one or 

more victims; or causes, or is intended 

to cause, bodily injury. In determining 

the appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the offense did not cause a risk of 

death or serious bodily injury, and 

neither caused nor was intended to 

cause bodily injury, may be relevant. 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2N1.2 is 

amended— 

by striking the Commentary captioned 

‘‘Application Note’’ in its entirety as 

follows: 

‘‘Application Note: 

1. If death or bodily injury, extreme 

psychological injury, or substantial 

property damage or monetary loss 

resulted, an upward departure may be 

warranted. See Chapter Five, Part K 

(Departures).’’; 

and by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the offense resulted in death or 

bodily injury, extreme psychological 

injury, or substantial property damage 

or monetary loss may be relevant. See 

§§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2N1.3 is 

amended— 

by striking the Commentary captioned 

‘‘Application Note’’ in its entirety as 

follows: 

‘‘Application Note: 

1. If death or bodily injury, extreme 

psychological injury, or substantial 

property damage or monetary loss 

resulted, an upward departure may be 

warranted. See Chapter Five, Part K 

(Departures).’’; 

and by inserting at the end the 

following new Commentary: 


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‘‘Additional Offense Specific 

Consideration: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the offense resulted in death or 

bodily injury, extreme psychological 

injury, or substantial property damage 

or monetary loss may be relevant. See 

§§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2N2.1 captioned 

‘‘Application Notes’’ is amended— 

by striking Note 1 as follows: 

‘‘1. This guideline assumes a 

regulatory offense that involved 

knowing or reckless conduct. Where 

only negligence was involved, a 

downward departure may be warranted. 

See Chapter Five, Part K (Departures).’’; 

by redesignating Note 2 as Note 1; 

by striking Note 3 as follows: 

‘‘3. Upward Departure Provisions.— 

The following are circumstances in 

which an upward departure may be 

warranted: 

(A) The offense created a substantial 

risk of bodily injury or death; or bodily 

injury, death, extreme psychological 

injury, property damage, or monetary 

loss resulted from the offense. See 

Chapter Five, Part K (Departures). 

(B) The defendant was convicted 

under 7 U.S.C. 7734.’’; 

and by redesignating Note 4 as Note 

2. 

The Commentary to § 2N2.1 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Considerations: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

of the following may be relevant: 

(A) The offense created a substantial 

risk of bodily injury or death; or bodily 

injury, death, extreme psychological 

injury, property damage, or monetary 

loss resulted from the offense. 

(B) The defendant was convicted 

under 7 U.S.C. 7734. 

See §§ 6A1.1; 6A1.3. 

2. Mitigating Factors Relating to the 

Offense.—This guideline assumes a 

regulatory offense that involved 

knowing or reckless conduct. In 

determining the appropriate sentence to 

impose pursuant to 18 U.S.C. 3553(a), 

evidence that the offense only involved 

negligence may be relevant. See 

§§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2P1.1 captioned 

‘‘Application Notes’’ is amended— 

by striking Note 4 as follows: 

‘‘4. If death or bodily injury resulted, 

an upward departure may be warranted. 

See Chapter Five, Part K (Departures).’’; 

and by redesignating Notes 5 and 6 as 

Notes 4 and 5, respectively. 

The Commentary to § 2P1.1 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Death or Bodily Injury Resulted.— 

In determining the appropriate sentence 

to impose pursuant to 18 U.S.C. 3553(a), 

evidence that the offense resulted in 

death or bodily injury may be relevant. 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2P1.3 is 

amended— 

by striking the Commentary captioned 

‘‘Application Note’’ in its entirety as 

follows: 

‘‘Application Note: 

1. If death or bodily injury resulted, 

an upward departure may be warranted. 

See Chapter Five, Part K (Departures).’’; 

and by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Death or Bodily Injury Resulted.— 

In determining the appropriate sentence 

to impose pursuant to 18 U.S.C. 3553(a), 

evidence that the offense resulted in 

death or bodily injury may be relevant. 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2Q1.1 is 

amended— 

by striking the Commentary captioned 

‘‘Application Note’’ in its entirety as 

follows: 

‘‘Application Note: 

1. If death or serious bodily injury 

resulted, an upward departure may be 

warranted. See Chapter Five, Part K 

(Departures).’’; 

and by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Death or Serious Bodily Injury 

Resulted.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the offense resulted in death or 

serious bodily injury may be relevant. 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2Q1.2 captioned 

‘‘Application Notes’’ is amended— 

by striking Note 4 as follows: 

‘‘4. Except when the adjustment in 

subsection (b)(6) for simple 

recordkeeping offenses applies, this 

section assumes knowing conduct. In 

cases involving negligent conduct, a 

downward departure may be 

warranted.’’; 

redesignating Notes 5 through 8 as 

Notes 4 through 7, respectively; 

in Note 4 (as so redesignated) by 

striking ‘‘Depending upon the harm 

resulting from the emission, release or 

discharge, the quantity and nature of the 

substance or pollutant, the duration of 

the offense and the risk associated with 

the violation, a departure of up to two 

levels in either direction from the 

offense levels prescribed in these 

specific offense characteristics may be 

appropriate.’’; 

in Note 5 (as so redesignated) by 

striking ‘‘Depending upon the nature of 

the risk created and the number of 

people placed at risk, a departure of up 

to three levels upward or downward 

may be warranted. If death or serious 

bodily injury results, a departure would 

be called for. See Chapter Five, Part K 

(Departures).’’; 

in Note 6 (as so redesignated) by 

striking ‘‘Depending upon the nature of 

the contamination involved, a departure 

of up to two levels either upward or 

downward could be warranted.’’; 

in Note 7 (as so redesignated) by 

striking ‘‘Depending upon the nature 

and quantity of the substance involved 

and the risk associated with the offense, 

a departure of up to two levels either 

upward or downward may be 

warranted.’’; 

and by striking Note 9 as follows: 

‘‘9. Other Upward Departure 

Provisions.— 

(A) Civil Adjudications and Failure to 

Comply with Administrative Order.—In 

a case in which the defendant has 

previously engaged in similar 

misconduct established by a civil 

adjudication or has failed to comply 

with an administrative order, an upward 

departure may be warranted. See 

§ 4A1.3 (Departures Based on 

Inadequacy of Criminal History 

Category). 

(B) Extreme Psychological Injury.—If 

the offense caused extreme 

psychological injury, an upward 

departure may be warranted. See 

§ 5K2.3 (Extreme Psychological Injury). 

(C) Terrorism.—If the offense was 

calculated to influence or affect the 

conduct of government by intimidation 

or coercion, or to retaliate against 

government conduct, an upward 

departure would be warranted. See 

Application Note 4 of the Commentary 

to § 3A1.4 (Terrorism).’’. 

The Commentary to § 2Q1.2 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Considerations: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

of the following may be relevant: 

(A) The offense resulted in death or 

serious bodily injury. 


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(B) The defendant has previously 

engaged in similar misconduct 

established by a civil adjudication or 

has failed to comply with an 

administrative order. 

(C) The offense caused extreme 

psychological injury. 

(D) The offense was calculated to 

influence or affect the conduct of 

government by intimidation or coercion, 

or to retaliate against government 

conduct. 

See §§ 6A1.1; 6A1.3. 

2. Mitigating Factors Relating to the 

Offense.—Except when the adjustment 

in subsection (b)(6) for simple 

recordkeeping offenses applies, this 

guideline assumes knowing conduct. In 

determining the appropriate sentence to 

impose pursuant to 18 U.S.C. 3553(a), 

evidence that the offense only involved 

negligent conduct may be relevant. See 

§§ 6A1.1; 6A1.3. 

3. Additional Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the offense involved any of the 

following may be relevant: 

(A) The harm resulting from the 

emission, release or discharge into the 

environment, the quantity and nature of 

the substance or pollutant, the duration 

of the offense and the risk associated 

with the violation. 

(B) The nature of the risk created, and 

the number of people placed at risk. 

(C) The nature and quantity of the 

substance or contamination involved in, 

and the risk associated with, the offense. 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2Q1.3 captioned 

‘‘Application Notes’’ is amended— 

by striking Note 3 as follows: 

‘‘3. The specific offense 

characteristics in this section assume 

knowing conduct. In cases involving 

negligent conduct, a downward 

departure may be warranted.’’; 

by redesignating Notes 4 through 7 as 

Notes 3 through 6; 

in Note 3 (as so redesignated) by 

striking ‘‘Depending upon the harm 

resulting from the emission, release or 

discharge, the quantity and nature of the 

substance or pollutant, the duration of 

the offense and the risk associated with 

the violation, a departure of up to two 

levels in either direction from that 

prescribed in these specific offense 

characteristics may be appropriate.’’; 

in Note 4 (as so redesignated) by 

striking ‘‘Depending upon the nature of 

the risk created and the number of 

people placed at risk, a departure of up 

to three levels upward or downward 

may be warranted. If death or serious 

bodily injury results, a departure would 

be called for. See Chapter Five, Part K 

(Departures).’’; 

in Note 5 (as so redesignated) by 

striking ‘‘Depending upon the nature of 

the contamination involved, a departure 

of up to two levels in either direction 

could be warranted.’’; 

in Note 6 (as so redesignated) by 

striking ‘‘Depending upon the nature 

and quantity of the substance involved 

and the risk associated with the offense, 

a departure of up to two levels in either 

direction may be warranted.’’; 

and by striking Note 8 as follows: 

‘‘8. Where a defendant has previously 

engaged in similar misconduct 

established by a civil adjudication or 

has failed to comply with an 

administrative order, an upward 

departure may be warranted. See 

§ 4A1.3 (Departures Based on 

Inadequacy of Criminal History 

Category (Policy Statement)).’’. 

The Commentary to § 2Q1.3 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Considerations: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

of the following may be relevant: 

(A) The offense resulted in death or 

serious bodily injury. 

(B) The defendant has previously 

engaged in similar misconduct 

established by a civil adjudication or 

has failed to comply with an 

administrative order. 

See §§ 6A1.1; 6A1.3. 

2. Mitigating Factors Relating to the 

Offense.—This guideline assumes 

knowing conduct. In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the offense only involved negligent 

conduct may be relevant. See §§ 6A1.1; 

6A1.3. 

3. Additional Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the offense involved any of the 

following may be relevant: 

(A) The harm resulting from the 

emission, release or discharge into the 

environment, the quantity and nature of 

the substance or pollutant, the duration 

of the offense and the risk associated 

with the violation. 

(B) The nature of the risk created, and 

the number of people placed at risk. 

(C) The nature and quantity of the 

substance or contamination involved in, 

and the risk associated with, the offense. 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2Q1.4 captioned 

‘‘Application Notes’’ is amended by 

striking Note 3 as follows: 

‘‘3. Departure Provisions.— 

(A) Downward Departure Provision.— 

The base offense level in subsection 

(a)(1) reflects that offenses covered by 

that subsection typically pose a risk of 

death or serious bodily injury to one or 

more victims, or cause, or are intended 

to cause, bodily injury. In the unusual 

case in which such an offense did not 

cause a risk of death or serious bodily 

injury, and neither caused nor was 

intended to cause bodily injury, a 

downward departure may be warranted. 

(B) Upward Departure Provisions.—If 

the offense caused extreme 

psychological injury, or caused 

substantial property damage or 

monetary loss, an upward departure 

may be warranted. 

If the offense was calculated to 

influence or affect the conduct of 

government by intimidation or coercion, 

or to retaliate against government 

conduct, an upward departure would be 

warranted. See Application Note 4 of 

§ 3A1.4 (Terrorism).’’. 

The Commentary to § 2Q1.4 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Considerations: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the offense involved any of the 

following may be relevant: 

(A) The offense caused extreme 

psychological injury or caused 

substantial property damage or 

monetary loss. 

(B) The offense was calculated to 

influence or affect the conduct of 

government by intimidation or coercion, 

or to retaliate against government 

conduct. 

See §§ 6A1.1; 6A1.3. 

2. Mitigating Factors Relating to the 

Offense.—The base offense level in 

subsection (a)(1) reflects that offenses 

covered by that subsection typically 

pose a risk of death or serious bodily 

injury to one or more victims, or cause, 

or are intended to cause, bodily injury. 

In determining the appropriate sentence 

to impose pursuant to 18 U.S.C. 3553(a), 

evidence that the offense did not cause 

a risk of death or serious bodily injury, 

and neither caused nor was intended to 

cause bodily injury, may be relevant. 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2Q2.1 captioned 

‘‘Application Notes’’ is amended— 

by striking Note 5 as follows: 

‘‘5. If the offense involved the 

destruction of a substantial quantity of 


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fish, wildlife, or plants, and the 

seriousness of the offense is not 

adequately measured by the market 

value, an upward departure may be 

warranted.’’; 

and by redesignating Note 6 as Note 

5. 

The Commentary to § 2Q2.1 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the offense involved the destruction 

of a substantial quantity of fish, wildlife, 

or plants, and the seriousness of the 

offense is not adequately measured by 

the market value, may be relevant. See 

§§ 6A1.1; 6A1.3.’’. 

Section 2R1.1(d)(1) is amended by 

striking ‘‘§ 8C2.4’’ and inserting 

‘‘§ 9C2.4’’. 

Section 2R1.1(d)(2) is amended by 

striking ‘‘§ 8C2.6’’ and inserting 

‘‘§ 9C2.6’’. 

The Commentary to § 2R1.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 3 by striking ‘‘Chapter Eight’’ 

and inserting ‘‘Chapter Nine’’; and by 

striking ‘‘§ 8C2.4(a)(3)’’ and inserting 

‘‘§ 9C2.4(a)(3)’’; 

and by striking Note 7 as follows: 

‘‘7. In the case of a defendant with 

previous antitrust convictions, a 

sentence at the maximum of the 

applicable guideline range, or an 

upward departure, may be warranted. 

See § 4A1.3 (Departures Based on 

Inadequacy of Criminal History 

Category (Policy Statement)).’’. 

The Commentary to § 2R1.1 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Defendant with Previous Antitrust 

Convictions.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the defendant had prior antitrust 

convictions may be relevant. See 

§§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2R1.1 captioned 

‘‘Background’’ is amended by striking 

‘‘Chapter Eight’’ and inserting ‘‘Chapter 

Nine’’. 

The Commentary to § 2T1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 3 by striking ‘‘§ 6A1.3’’ both places 

such term appears and inserting 

‘‘§ 7A1.3’’. 

The Commentary to § 2T1.8 is 

amended— 

by striking the Commentary captioned 

‘‘Application Note’’ in its entirety as 

follows: 

‘‘Application Note: 

1. If the defendant was attempting to 

evade, rather than merely delay, 

payment of taxes, an upward departure 

may be warranted.’’; 

and by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Attempt to Evade Payment of 

Taxes.—In determining the appropriate 

sentence to impose pursuant to 18 

U.S.C. 3553(a), evidence that the 

defendant was attempting to evade, 

rather than merely delay, payment of 

taxes may be relevant. See §§ 6A1.1; 

6A1.3.’’. 

The Commentary to § 2T2.1 captioned 

‘‘Application Notes’’ is amended— 

in the caption by striking ‘‘Notes’’ and 

inserting ‘‘Note’’; 

and by striking Note 2 as follows: 

‘‘2. Offense conduct directed at more 

than tax evasion (e.g., theft or fraud) 

may warrant an upward departure.’’. 

The Commentary to § 2T2.1 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the offense conduct was directed at 

more than tax evasion (e.g., theft or 

fraud) may be relevant. See §§ 6A1.1; 

6A1.3.’’. 

Chapter Two, Part T, Subpart 3 is 

amended in the Introductory 

Commentary by striking ‘‘for departing 

upward if there is not another more 

specific applicable guideline’’ and 

inserting ‘‘for imposing a sentence that 

is greater than the otherwise applicable 

guideline range pursuant to Chapter Six, 

Part A (Consideration of Factors in 18 

U.S.C. 3553(a))’’. 

The Commentary to § 2T3.1 captioned 

‘‘Application Notes’’ is amended in 

Note 2 by striking ‘‘Especially when 

such items are harmful or protective 

quotas are in effect, the duties evaded 

on such items may not adequately 

reflect the harm to society or protected 

industries resulting from their 

importation. In such instances, an 

upward departure may be warranted.’’. 

The Commentary to § 2T3.1 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

that the duties evaded on the items 

involved in the offense do not 

adequately reflect the harm to society or 

protected industries resulting from their 

importation may be relevant. See 

§§ 6A1.1; 6A1.3.’’. 

The Commentary to § 2X5.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 1 by inserting after ‘‘include:’’ 

the following: ‘‘§ 3F1.1 (Early 

Disposition Programs (Policy 

Statement));’’; by striking ‘‘Chapter Five, 

Part H (Specific Offender 

Characteristics); Chapter Five, Part J 

(Relief from Disability); Chapter Five, 

Part K (Departures); Chapter Six, Part A 

(Sentencing Procedures); Chapter Six, 

Part B (Plea Agreements)’’ and inserting 

‘‘Chapter Five, Part J (Relief from 

Disability); Chapter Five, Part K 

(Assistance to Authorities); Chapter 

Seven, Part A (Sentencing Procedures); 

Chapter Seven, Part B (Plea 

Agreements)’’; 

and in Note 2 by striking the 

following: 

‘‘2. Convictions under 18 U.S.C. 

1841(a)(1).— 

(A) In General.—If the defendant is 

convicted under 18 U.S.C. 1841(a)(1), 

the Chapter Two offense guideline that 

applies is the guideline that covers the 

conduct the defendant is convicted of 

having engaged in, i.e., the conduct of 

which the defendant is convicted that 

violates a specific provision listed in 18 

U.S.C. 1841(b) and that results in the 

death of, or bodily injury to, a child in 

utero at the time of the offense of 

conviction. For example, if the 

defendant committed aggravated sexual 

abuse against the unborn child’s mother 

and it caused the death of the child in 

utero, the applicable Chapter Two 

guideline would be § 2A3.1 (Criminal 

Sexual Abuse; Attempt to Commit 

Criminal Sexual Abuse). 

(B) Upward Departure Provision.—For 

offenses under 18 U.S.C. 1841(a)(1), an 

upward departure may be warranted if 

the offense level under the applicable 

guideline does not adequately account 

for the death of, or serious bodily injury 

to, the child in utero.’’; 

and inserting the following: 

‘‘Convictions under 18 U.S.C. 

1841(a)(1).—If the defendant is 

convicted under 18 U.S.C. 1841(a)(1), 

the Chapter Two offense guideline that 

applies is the guideline that covers the 

conduct the defendant is convicted of 

having engaged in, i.e., the conduct of 

which the defendant is convicted that 

violates a specific provision listed in 18 

U.S.C. 1841(b) and that results in the 

death of, or bodily injury to, a child in 

utero at the time of the offense of 


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conviction. For example, if the 

defendant committed aggravated sexual 

abuse against the unborn child’s mother 

and it caused the death of the child in 

utero, the applicable Chapter Two 

guideline would be § 2A3.1 (Criminal 

Sexual Abuse; Attempt to Commit 

Criminal Sexual Abuse).’’. 

The Commentary to § 2X5.1 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a) for 

offenses under 18 U.S.C. 1841(a)(1), 

evidence that the offense level under the 

applicable guideline does not 

adequately account for the death of, or 

serious bodily injury to, the child in 

utero may be relevant. See §§ 6A1.1; 

6A1.3.’’. 

The Commentary to § 2X7.2 is 

amended— 

by striking the Commentary captioned 

‘‘Application Note’’ in its entirety as 

follows: 

‘‘Application Note: 

1. Upward Departure Provisions.—An 

upward departure may be warranted in 

any of the following cases: 

(A) The defendant engaged in a 

pattern of activity involving use of a 

submersible vessel or semi-submersible 

vessel described in 18 U.S.C. 2285 to 

facilitate other felonies. 

(B) The offense involved use of the 

vessel as part of an ongoing criminal 

organization or enterprise.’’; 

and by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), evidence 

of the following may be relevant: 

(A) The defendant engaged in a 

pattern of activity involving use of a 

submersible vessel or semi-submersible 

vessel described in 18 U.S.C. 2285 to 

facilitate other felonies. 

(B) The offense involved use of the 

vessel as part of an ongoing criminal 

organization or enterprise. 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 3A1.1 captioned 

‘‘Application Notes’’ is amended— 

by striking Note 4 as follows: 

‘‘4. If an enhancement from 

subsection (b) applies and the 

defendant’s criminal history includes a 

prior sentence for an offense that 

involved the selection of a vulnerable 

victim, an upward departure may be 

warranted.’’; and by redesignating Note 

5 as Note 4. 

The Commentary to § 3A1.1 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Consideration: 

1. Criminal History Involving 

Vulnerable Victims.—In determining 

the appropriate sentence to impose 

under 18 U.S.C. 3553(a), a prior offense 

that also involved the selection of a 

vulnerable victim may be relevant in a 

case in which an enhancement from 

subsection (b) applies. See §§ 6A1.1; 

6A1.3.’’. 

The Commentary to § 3A1.2 captioned 

‘‘Application Notes’’ is amended by 

striking Note 5 as follows: 

‘‘5. Upward Departure Provision.—If 

the official victim is an exceptionally 

high-level official, such as the President 

or the Vice President of the United 

States, an upward departure may be 

warranted due to the potential 

disruption of the governmental 

function.’’. 

The Commentary to § 3A1.2 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Exceptionally High-Level Official.— 

In determining the appropriate sentence 

to impose under 18 U.S.C. 3553(a), 

evidence that the official victim is an 

exceptionally high-level official, such as 

the President or the Vice President of 

the United States, may be relevant due 

to the potential disruption of the 

governmental function. See §§ 6A1.1; 

6A1.3.’’. 

The Commentary to § 3A1.3 captioned 

‘‘Application Notes’’ is amended by 

striking Note 3 as follows: 

‘‘3. If the restraint was sufficiently 

egregious, an upward departure may be 

warranted. See § 5K2.4 (Abduction or 

Unlawful Restraint).’’. 

The Commentary to § 3A1.3 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Sufficiently Egregious Restraint.— 

In determining the appropriate sentence 

to impose under 18 U.S.C. 3553(a), 

evidence that the restraint was 

sufficiently egregious may be relevant. 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 3A1.4 captioned 

‘‘Application Notes’’ is amended by 

striking Note 4 as follows: 

‘‘4. Upward Departure Provision.—By 

the terms of the directive to the 

Commission in section 730 of the 

Antiterrorism and Effective Death 

Penalty Act of 1996, the adjustment 

provided by this guideline applies only 

to federal crimes of terrorism. However, 

there may be cases in which (A) the 

offense was calculated to influence or 

affect the conduct of government by 

intimidation or coercion, or to retaliate 

against government conduct but the 

offense involved, or was intended to 

promote, an offense other than one of 

the offenses specifically enumerated in 

18 U.S.C. 2332b(g)(5)(B); or (B) the 

offense involved, or was intended to 

promote, one of the offenses specifically 

enumerated in 18 U.S.C. 2332b(g)(5)(B), 

but the terrorist motive was to 

intimidate or coerce a civilian 

population, rather than to influence or 

affect the conduct of government by 

intimidation or coercion, or to retaliate 

against government conduct. In such 

cases an upward departure would be 

warranted, except that the sentence 

resulting from such a departure may not 

exceed the top of the guideline range 

that would have resulted if the 

adjustment under this guideline had 

been applied.’’. 

The Commentary to § 3A1.4 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Aggravating Factors Relating to the 

Offense.—By the terms of the directive 

to the Commission in section 730 of the 

Antiterrorism and Effective Death 

Penalty Act of 1996, the adjustment 

provided by this guideline applies only 

to federal crimes of terrorism. However, 

in determining the appropriate sentence 

to impose under 18 U.S.C. 3553(a), 

evidence that the offense was calculated 

to influence or affect the conduct of 

government by intimidation or coercion, 

to retaliate against government conduct 

or to intimidate or coerce a civilian 

population may be relevant. See 

§§ 6A1.1; 6A1.3.’’. 

The Commentary to § 3B1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 2 by striking ‘‘An upward 

departure may be warranted, however, 

in the case of a defendant who did not 

organize, lead, manage, or supervise 

another participant, but who 

nevertheless exercised management 

responsibility over the property, assets, 

or activities of a criminal organization.’’. 

The Commentary to § 3B1.1 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Management of Property, Assets, or 

Activities.—In determining the 

appropriate sentence to impose under 

18 U.S.C. 3553(a), evidence that the 

defendant exercised management 


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responsibility over the property, assets, 

or activities of a criminal organization 

may be relevant, regardless of whether 

this adjustment applied. See §§ 6A1.1; 

6A1.2.’’. 

The Commentary to § 3B1.4 captioned 

‘‘Application Notes’’ is amended by 

striking Note 3 as follows: 

‘‘3. If the defendant used or attempted 

to use more than one person less than 

eighteen years of age, an upward 

departure may be warranted.’’. 

The Commentary to § 3B1.4 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Using Multiple Minors.—In 

determining the appropriate sentence to 

impose under 18 U.S.C. 3553(a), 

evidence that the defendant used or 

attempted to use more than one person 

less than eighteen years of age may be 

relevant. See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 3C1.2 captioned 

‘‘Application Notes’’ is amended— 

in Note 2 by striking ‘‘However, 

where a higher degree of culpability was 

involved, an upward departure above 

the 2-level increase provided in this 

section may be warranted.’’; 

and by striking Note 6 as follows: 

‘‘6. If death or bodily injury results or 

the conduct posed a substantial risk of 

death or bodily injury to more than one 

person, an upward departure may be 

warranted. See Chapter Five, Part K 

(Departures).’’. 

The Commentary to § 3C1.2 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose under 

18 U.S.C. 3553(a), evidence that the 

offense involved any of the following 

may be relevant: 

(A) The offense involved a degree of 

culpability higher than recklessness. 

(B) Death or bodily injury resulted 

from the offense, or the conduct posed 

a substantial risk of death or bodily 

injury to more than one person. 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 3D1.1 captioned 

‘‘Background’’ is amended by striking 

‘‘Chapter Five (Determining the 

Sentence)’’ both places such phrase 

appears and inserting ‘‘Chapter Five 

(Determining the Sentencing Range and 

Options Under the Guidelines)’’. 

The Commentary to § 3D1.2 captioned 

‘‘Background’’ is amended by striking 

‘‘because it probably would require 

departure in many cases in order to 

capture adequately the criminal 

behavior’’ and inserting ‘‘because, in 

many cases, it would not fully capture 

the scope and impact of the criminal 

behavior’’. 

The Commentary to § 3D1.3 captioned 

‘‘Application Notes’’ is amended by 

striking Note 4 as follows: 

‘‘4. Sometimes the rule specified in 

this section may not result in 

incremental punishment for additional 

criminal acts because of the grouping 

rules. For example, if the defendant 

commits forcible criminal sexual abuse 

(rape), aggravated assault, and robbery, 

all against the same victim on a single 

occasion, all of the counts are grouped 

together under § 3D1.2. The aggravated 

assault will increase the guideline range 

for the rape. The robbery, however, will 

not. This is because the offense 

guideline for rape (§ 2A3.1) includes the 

most common aggravating factors, 

including injury, that data showed to be 

significant in actual practice. The 

additional factor of property loss 

ordinarily can be taken into account 

adequately within the guideline range 

for rape, which is fairly wide. However, 

an exceptionally large property loss in 

the course of the rape would provide 

grounds for an upward departure. See 

§ 5K2.5 (Property Damage or Loss).’’. 

The Commentary to § 3D1.3 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Offense Specific 

Consideration: 

1. Aggravating Factors Relating to the 

Offense.—In determining the 

appropriate sentence to impose under 

18 U.S.C. 3553(a), evidence that the 

grouping rules under this section result 

in an offense level that substantially 

understates the seriousness of the 

defendant’s conduct may be relevant. 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 3D1.4 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Consideration: 

1. Factors Relating to Assignment of 

Units.—In determining the appropriate 

sentence to impose under 18 U.S.C. 

3553(a), the following may be relevant: 

(A) The total number of Units is 

significantly more than 5 Units. 

(B) There is no increase in the offense 

level under this guideline, because the 

most serious group has an offense level 

that is substantially higher than all of 

the other groups. 

(C) The case involved several 

ungrouped minor offenses resulting in 

an excessive increase in the offense 

level under this guideline. 

See §§ 6A1.1; 6A1.3.’’. 

The Commentary to § 3D1.4 captioned 

‘‘Background’’ is amended by striking 

the following: 

‘‘When Groups are of roughly 

comparable seriousness, each Group 

will represent one Unit. When the most 

serious Group carries an offense level 

substantially higher than that applicable 

to the other Groups, however, counting 

the lesser Groups fully for purposes of 

the table could add excessive 

punishment, possibly even more than 

those offenses would carry if prosecuted 

separately. To avoid this anomalous 

result and produce declining marginal 

punishment, Groups 9 or more levels 

less serious than the most serious Group 

should not be counted for purposes of 

the table, and that Groups 5 to 8 levels 

less serious should be treated as equal 

to one-half of a Group. Thus, if the most 

serious Group is at offense level 15 and 

if two other Groups are at level 10, there 

would be a total of two Units for 

purposes of the table (one plus one-half 

plus one-half) and the combined offense 

level would be 17. Inasmuch as the 

maximum increase provided in the 

guideline is 5 levels, departure would 

be warranted in the unusual case where 

the additional offenses resulted in a 

total of significantly more than 5 Units. 

In unusual circumstances, the 

approach adopted in this section could 

produce adjustments for the additional 

counts that are inadequate or excessive. 

If there are several groups and the most 

serious offense is considerably more 

serious than all of the others, there will 

be no increase in the offense level 

resulting from the additional counts. 

Ordinarily, the court will have latitude 

to impose added punishment by 

sentencing toward the upper end of the 

range authorized for the most serious 

offense. Situations in which there will 

be inadequate scope for ensuring 

appropriate additional punishment for 

the additional crimes are likely to be 

unusual and can be handled by 

departure from the guidelines. 

Conversely, it is possible that if there 

are several minor offenses that are not 

grouped together, application of the 

rules in this part could result in an 

excessive increase in the sentence range. 

Again, such situations should be 

infrequent and can be handled through 

departure. An alternative method for 

ensuring more precise adjustments 

would have been to determine the 

appropriate offense level adjustment 

through a more complicated 

mathematical formula; that approach 

was not adopted because of its 

complexity.’’; 

and inserting the following: 

‘‘When Groups are of roughly 

comparable seriousness, each Group 


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will represent one Unit. When the most 

serious Group carries an offense level 

substantially higher than that applicable 

to the other Groups, however, counting 

the lesser Groups fully for purposes of 

the table could add excessive 

punishment, possibly even more than 

those offenses would carry if prosecuted 

separately. To avoid this anomalous 

result and produce declining marginal 

punishment, Groups 9 or more levels 

less serious than the most serious Group 

should not be counted for purposes of 

the table, and that Groups 5 to 8 levels 

less serious should be treated as equal 

to one-half of a Group. Thus, if the most 

serious Group is at offense level 15 and 

if two other Groups are at level 10, there 

would be a total of two Units for 

purposes of the table (one plus one-half 

plus one-half) and the combined offense 

level would be 17.’’. 

The Commentary to § 3D1.5 is 

amended by striking ‘‘Chapter Five 

(Determining the Sentence)’’ and 

inserting ‘‘Chapter Five (Determining 

the Sentencing Range and Options 

Under the Guidelines)’’. 

Chapter Three is amended by 

inserting at the end the following new 

Part F: 

‘‘Part F—Early Disposition Program 

§ 3F1.1. Early Disposition Programs 

(Policy Statement) 

Upon motion of the Government, the 

court may decrease the defendant’s 

offense level pursuant to an early 

disposition program authorized by the 

Attorney General of the United States 

and the United States Attorney for the 

district in which the court resides. The 

level of the decrease shall be consistent 

with the authorized program within the 

filing district and the government 

motion filed, but shall be not more than 

4 levels. 

Commentary 

Background: This policy statement 

implements the directive to the 

Commission in section 401(m)(2)(B) of 

the Prosecutorial Remedies and Other 

Tools to end the Exploitation of 

Children Today Act of 2003 (the 

‘PROTECT Act ’, Public Law 108–21).’’. 

The Commentary to § 4A1.1 captioned 

‘‘Background’’ is amended by striking 

‘‘§ 4A1.3 authorizes the court to depart 

from the otherwise applicable criminal 

history category in certain 

circumstances’’ and inserting ‘‘§ 4A1.3 

(Additional Considerations Based on 

Inadequacy of Criminal History 

Category (Policy Statement)) provides a 

list of factors the court may consider in 

determining whether a defendant’s 

criminal history category under- or overrepresents the seriousness of the 

defendant’s criminal history or the 

likelihood that the defendant will 

commit other crimes’’. 

Section 4A1.2(h) is amended by 

striking ‘‘§ 4A1.3 (Departures Based on 

Inadequacy of Criminal History 

Category (Policy Statement))’’ and 

inserting ‘‘§ 4A1.3 (Additional 

Considerations Based on Inadequacy of 

Criminal History Category (Policy 

Statement))’’. 

Section 4A1.2(i) is amended by 

striking ‘‘§ 4A1.3 (Departures Based on 

Inadequacy of Criminal History 

Category (Policy Statement))’’ and 

inserting ‘‘§ 4A1.3 (Additional 

Considerations Based on Inadequacy of 

Criminal History Category (Policy 

Statement))’’. 

Section 4A1.2(j) is amended by 

striking ‘‘§ 4A1.3 (Departures Based on 

Inadequacy of Criminal History 

Category (Policy Statement))’’ and 

inserting ‘‘§ 4A1.3 (Additional 

Considerations Based on Inadequacy of 

Criminal History Category (Policy 

Statement))’’. 

The Commentary to § 4A1.2 captioned 

‘‘Applications Notes’’ is amended— 

in Note 3 by striking the following: 

‘‘Application of ‘Single Sentence ’ 

Rule (Subsection (a)(2)).— 

(A) Predicate Offenses.—In some 

cases, multiple prior sentences are 

treated as a single sentence for purposes 

of calculating the criminal history score 

under § 4A1.1(a), (b), and (c). However, 

for purposes of determining predicate 

offenses, a prior sentence included in 

the single sentence should be treated as 

if it received criminal history points, if 

it independently would have received 

criminal history points. Therefore, an 

individual prior sentence may serve as 

a predicate under the career offender 

guideline (see § 4B1.2(c)) or other 

guidelines with predicate offenses, if it 

independently would have received 

criminal history points. However, 

because predicate offenses may be used 

only if they are counted ‘separately’ 

from each other (see § 4B1.2(c)), no 

more than one prior sentence in a given 

single sentence may be used as a 

predicate offense. 

For example, a defendant’s criminal 

history includes one robbery conviction 

and one theft conviction. The sentences 

for these offenses were imposed on the 

same day, eight years ago, and are 

treated as a single sentence under 

§ 4A1.2(a)(2). If the defendant received 

a one-year sentence of imprisonment for 

the robbery and a two-year sentence of 

imprisonment for the theft, to be served 

concurrently, a total of 3 points is added 

under § 4A1.1(a). Because this particular 

robbery met the definition of a felony 

crime of violence and independently 

would have received 2 criminal history 

points under § 4A1.1(b), it may serve as 

a predicate under the career offender 

guideline. 

Note, however, that if the sentences in 

the example above were imposed 

thirteen years ago, the robbery 

independently would have received no 

criminal history points under 

§ 4A1.1(b), because it was not imposed 

within ten years of the defendant’s 

commencement of the instant offense. 

See § 4A1.2(e)(2). Accordingly, it may 

not serve as a predicate under the career 

offender guideline. 

(B) Upward Departure Provision.— 

Treating multiple prior sentences as a 

single sentence may result in a criminal 

history score that underrepresents the 

seriousness of the defendant’s criminal 

history and the danger that the 

defendant presents to the public. In 

such a case, an upward departure may 

be warranted. For example, if a 

defendant was convicted of a number of 

serious non-violent offenses committed 

on different occasions, and the resulting 

sentences were treated as a single 

sentence because either the sentences 

resulted from offenses contained in the 

same charging instrument or the 

defendant was sentenced for these 

offenses on the same day, the 

assignment of a single set of points may 

not adequately reflect the seriousness of 

the defendant’s criminal history or the 

frequency with which the defendant has 

committed crimes.’’; 

and inserting the following: 

‘‘Application of ‘Single Sentence’ 

Rule (Subsection (a)(2)).—In some cases, 

multiple prior sentences are treated as a 

single sentence for purposes of 

calculating the criminal history score 

under § 4A1.1(a), (b), and (c). However, 

for purposes of determining predicate 

offenses, a prior sentence included in 

the single sentence should be treated as 

if it received criminal history points, if 

it independently would have received 

criminal history points. Therefore, an 

individual prior sentence may serve as 

a predicate under the career offender 

guideline (see § 4B1.2(c)) or other 

guidelines with predicate offenses, if it 

independently would have received 

criminal history points. However, 

because predicate offenses may be used 

only if they are counted ‘separately’ 

from each other (see § 4B1.2(c)), no 

more than one prior sentence in a given 

single sentence may be used as a 

predicate offense. 

For example, a defendant’s criminal 

history includes one robbery conviction 

and one theft conviction. The sentences 

for these offenses were imposed on the 

same day, eight years ago, and are 


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treated as a single sentence under 

§ 4A1.2(a)(2). If the defendant received 

a one-year sentence of imprisonment for 

the robbery and a two-year sentence of 

imprisonment for the theft, to be served 

concurrently, a total of 3 points is added 

under § 4A1.1(a). Because this particular 

robbery met the definition of a felony 

crime of violence and independently 

would have received 2 criminal history 

points under § 4A1.1(b), it may serve as 

a predicate under the career offender 

guideline. 

Note, however, that if the sentences in 

the example above were imposed 

thirteen years ago, the robbery 

independently would have received no 

criminal history points under 

§ 4A1.1(b), because it was not imposed 

within ten years of the defendant’s 

commencement of the instant offense. 

See § 4A1.2(e)(2). Accordingly, it may 

not serve as a predicate under the career 

offender guideline.’’; 

in Note 6 by striking ‘‘§ 4A1.3 

(Departures Based on Inadequacy of 

Criminal History Category (Policy 

Statement))’’ and inserting ‘‘§ 4A1.3 

(Additional Considerations Based on 

Inadequacy of Criminal History 

Category (Policy Statement))’’; 

and in Note 8 by striking ‘‘in 

determining whether an upward 

departure is warranted under § 4A1.3 

(Departures Based on Inadequacy of 

Criminal History Category (Policy 

Statement))’’ and inserting ‘‘pursuant to 

§ 4A1.3 (Additional Considerations 

Based on Inadequacy of Criminal 

History Category (Policy Statement))’’. 

The Commentary to § 4A1.2 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Consideration: 

1. Multiple Prior Sentences.—In cases 

in which multiple prior sentences are 

treated as a single sentence, the court 

may, in determining the appropriate 

sentence to impose under 18 U.S.C. 

3553(a), consider whether such 

treatment results in a criminal history 

score that underrepresents the 

seriousness of the defendant’s criminal 

history and the danger that the 

defendant presents to the public. See 

§ 4A1.3.’’. 

Section 4A1.3 is amended— 

in the heading by striking 

‘‘Departures’’ and inserting ‘‘Additional 

Considerations’’; 

by striking the following: 

‘‘(a) Upward Departures.— 

(1) Standard for Upward Departure.— 

If reliable information indicates that the 

defendant’s criminal history category 

substantially under-represents the 

seriousness of the defendant’s criminal 

history or the likelihood that the 

defendant will commit other crimes, an 

upward departure may be warranted. 

(2) Types of Information Forming the 

Basis for Upward Departure.—The 

information described in subsection 

(a)(1) may include information 

concerning the following: 

(A) Prior sentence(s) not used in 

computing the criminal history category 

(e.g., sentences for foreign and tribal 

convictions). 

(B) Prior sentence(s) of substantially 

more than one year imposed as a result 

of independent crimes committed on 

different occasions. 

(C) Prior similar misconduct 

established by a civil adjudication or by 

a failure to comply with an 

administrative order. 

(D) Whether the defendant was 

pending trial or sentencing on another 

charge at the time of the instant offense. 

(E) Prior similar adult criminal 

conduct not resulting in a criminal 

conviction. 

(3) Prohibition.—A prior arrest record 

itself shall not be considered for 

purposes of an upward departure under 

this policy statement. 

(4) Determination of Extent of Upward 

Departure.— 

(A) In General.—Except as provided 

in subdivision (B), the court shall 

determine the extent of a departure 

under this subsection by using, as a 

reference, the criminal history category 

applicable to defendants whose criminal 

history or likelihood to recidivate most 

closely resembles that of the 

defendant’s. 

(B) Upward Departures from Category 

VI.—In a case in which the court 

determines that the extent and nature of 

the defendant’s criminal history, taken 

together, are sufficient to warrant an 

upward departure from Criminal 

History Category VI, the court should 

structure the departure by moving 

incrementally down the sentencing 

table to the next higher offense level in 

Criminal History Category VI until it 

finds a guideline range appropriate to 

the case. 

(b) Downward Departures.— 

(1) Standard for Downward 

Departure.—If reliable information 

indicates that the defendant’s criminal 

history category substantially overrepresents the seriousness of the 

defendant’s criminal history or the 

likelihood that the defendant will 

commit other crimes, a downward 

departure may be warranted. 

(2) Prohibitions.— 

(A) Criminal History Category I.— 

Unless otherwise specified, a departure 

below the lower limit of the applicable 

guideline range for Criminal History 

Category I is prohibited. 

(B) Armed Career Criminal and 

Repeat and Dangerous Sex Offender.— 

A downward departure under this 

subsection is prohibited for (i) an armed 

career criminal within the meaning of 

§ 4B1.4 (Armed Career Criminal); and 

(ii) a repeat and dangerous sex offender 

against minors within the meaning of 

§ 4B1.5 (Repeat and Dangerous Sex 

Offender Against Minors). 

(3) Limitations.— 

(A) Limitation on Extent of Downward 

Departure for Career Offender.—The 

extent of a downward departure under 

this subsection for a career offender 

within the meaning of § 4B1.1 (Career 

Offender) may not exceed one criminal 

history category. 

(B) Limitation on Applicability of 

§ 5C1.2 in Event of Downward 

Departure.—A defendant who receives a 

downward departure under this 

subsection does not meet the criminal 

history requirement of subsection (a)(1) 

of § 5C1.2 (Limitation on Applicability 

of Statutory Maximum Sentences in 

Certain Cases) if the defendant did not 

otherwise meet such requirement before 

receipt of the downward departure. 

(c) Written Specification of Basis for 

Departure.—In departing from the 

otherwise applicable criminal history 

category under this policy statement, 

the court shall specify in writing the 

following: 

(1) In the case of an upward 

departure, the specific reasons why the 

applicable criminal history category 

substantially under-represents the 

seriousness of the defendant’s criminal 

history or the likelihood that the 

defendant will commit other crimes. 

(2) In the case of a downward 

departure, the specific reasons why the 

applicable criminal history category 

substantially over-represents the 

seriousness of the defendant’s criminal 

history or the likelihood that the 

defendant will commit other crimes.’’; 

and inserting the following: 

‘‘(a) Aggravating and Mitigating 

Factors.—In determining the 

appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a), the court 

should consider whether the 

defendant’s criminal history category 

under- or over-represents the 

seriousness of the defendant’s criminal 

history or the likelihood that the 

defendant will commit other crimes. If 

established by reliable information, the 

following aggravating or mitigating 

factors may be relevant to this 

determination: 

(1) Aggravating Factors.— 

(A) Prior sentence(s) not used in 

computing the criminal history category 

(e.g., sentences for foreign and tribal 

convictions). 


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(B) Prior sentences of substantially 

more than one year imposed as a result 

of independent crimes committed on 

different occasions. 

(C) Prior similar misconduct 

established by a civil adjudication or by 

a failure to comply with an 

administrative order. 

(D) Whether the defendant was 

pending trial or sentencing on another 

charge at the time of the instant offense. 

(E) Prior similar adult criminal 

conduct not resulting in a criminal 

conviction. 

(2) Mitigating Factors.— 

(A) The defendant had two minor 

misdemeanor convictions close to ten 

years prior to the instant offense and no 

other evidence of prior criminal 

behavior in the intervening period. 

(B) The defendant received criminal 

history points from a sentence for 

possession of marihuana for personal 

use, without an intent to sell or 

distribute it to another person. 

(b) Prior Arrest Record.—A prior 

arrest record itself is not a relevant 

consideration under this policy 

statement.’’. 

The Commentary to § 4A1.3 is 

amended— 

by striking the Commentary captioned 

‘‘Application Notes’’ and ‘‘Background’’ 

in its entirety as follows: 

‘‘Application Notes: 

1. Definitions.—For purposes of this 

policy statement, the terms ‘depart’, 

‘departure’, ‘downward departure’, and 

‘upward departure’ have the meaning 

given those terms in Application Note 1 

of the Commentary to § 1B1.1 

(Application Instructions). 

2. Upward Departures.— 

(A) Examples.—An upward departure 

from the defendant’s criminal history 

category may be warranted based on any 

of the following circumstances: 

(i) A previous foreign sentence for a 

serious offense. 

(ii) Receipt of a prior consolidated 

sentence of ten years for a series of 

serious assaults. 

(iii) A similar instance of large scale 

fraudulent misconduct established by 

an adjudication in a Securities and 

Exchange Commission enforcement 

proceeding. 

(iv) Commission of the instant offense 

while on bail or pretrial release for 

another serious offense. 

(B) Upward Departures from Criminal 

History Category VI.—In the case of an 

egregious, serious criminal record in 

which even the guideline range for 

Criminal History Category VI is not 

adequate to reflect the seriousness of the 

defendant’s criminal history, a 

departure above the guideline range for 

a defendant with Criminal History 

Category VI may be warranted. In 

determining whether an upward 

departure from Criminal History 

Category VI is warranted, the court 

should consider that the nature of the 

prior offenses rather than simply their 

number is often more indicative of the 

seriousness of the defendant’s criminal 

record. For example, a defendant with 

five prior sentences for very large-scale 

fraud offenses may have 15 criminal 

history points, within the range of 

points typical for Criminal History 

Category VI, yet have a substantially 

more serious criminal history overall 

because of the nature of the prior 

offenses. 

(C) Upward Departures Based on 

Tribal Court Convictions.—In 

determining whether, or to what extent, 

an upward departure based on a tribal 

court conviction is appropriate, the 

court shall consider the factors set forth 

in § 4A1.3(a) above and, in addition, 

may consider relevant factors such as 

the following: 

(i) The defendant was represented by 

a lawyer, had the right to a trial by jury, 

and received other due process 

protections consistent with those 

provided to criminal defendants under 

the United States Constitution. 

(ii) The defendant received the due 

process protections required for 

criminal defendants under the Indian 

Civil Rights Act of 1968, Public Law 90– 

284, as amended. 

(iii) The tribe was exercising 

expanded jurisdiction under the Tribal 

Law and Order Act of 2010, Public Law 

111–211. 

(iv) The tribe was exercising 

expanded jurisdiction under the 

Violence Against Women 

Reauthorization Act of 2013, Public Law 

113–4. 

(v) The tribal court conviction is not 

based on the same conduct that formed 

the basis for a conviction from another 

jurisdiction that receives criminal 

history points pursuant to this chapter. 

(vi) The tribal court conviction is for 

an offense that otherwise would be 

counted under § 4A1.2 (Definitions and 

Instructions for Computing Criminal 

History). 

3. Downward Departures.— 

(A) Examples.—A downward 

departure from the defendant’s criminal 

history category may be warranted 

based on any of the following 

circumstances: 

(i) The defendant had two minor 

misdemeanor convictions close to ten 

years prior to the instant offense and no 

other evidence of prior criminal 

behavior in the intervening period. 

(ii) The defendant received criminal 

history points from a sentence for 

possession of marihuana for personal 

use, without an intent to sell or 

distribute it to another person. 

(B) Downward Departures from 

Criminal History Category I.—A 

departure below the lower limit of the 

applicable guideline range for Criminal 

History Category I is prohibited under 

subsection (b)(2)(A), unless otherwise 

specified. 

Background: This policy statement 

recognizes that the criminal history 

score is unlikely to take into account all 

the variations in the seriousness of 

criminal history that may occur. For 

example, a defendant with an extensive 

record of serious, assaultive conduct 

who had received what might now be 

considered extremely lenient treatment 

in the past might have the same 

criminal history category as a defendant 

who had a record of less serious 

conduct. Yet, the first defendant’s 

criminal history clearly may be more 

serious. This may be particularly true in 

the case of younger defendants (e.g., 

defendants in their early twenties or 

younger) who are more likely to have 

received repeated lenient treatment, yet 

who may actually pose a greater risk of 

serious recidivism than older 

defendants. This policy statement 

authorizes the consideration of a 

departure from the guidelines in the 

limited circumstances where reliable 

information indicates that the criminal 

history category does not adequately 

reflect the seriousness of the defendant’s 

criminal history or likelihood of 

recidivism, and provides guidance for 

the consideration of such departures.’’; 

and inserting the following new 

Commentary: 

‘‘Application Note: 

1. Tribal Convictions.—In considering 

tribal court convictions not counted in 

the criminal history score, the presence 

of the following factors may be relevant 

to the court’s determination: 

(A) The defendant was represented by 

a lawyer, had the right to a trial by jury, 

and received other due process 

protections consistent with those 

provided to criminal defendants under 

the United States Constitution. 

(B) The defendant received the due 

process protections required for 

criminal defendants under the Indian 

Civil Rights Act of 1968, Public Law 90– 

284, as amended. 

(C) The tribe was exercising expanded 

jurisdiction under the Tribal Law and 

Order Act of 2010, Public Law 111–211. 

(D) The tribe was exercising expanded 

jurisdiction under the Violence Against 

Women Reauthorization Act of 2013, 

Public Law 113–4. 

(E) The tribal court conviction is not 

based on the same conduct that formed 


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the basis for a conviction from another 

jurisdiction that receives criminal 

history points pursuant to this chapter. 

(F) The tribal court conviction is for 

an offense that otherwise would be 

counted under § 4A1.2 (Definitions and 

Instructions for Computing Criminal 

History). 

Background: This policy statement 

recognizes that the criminal history 

score is unlikely to take into account all 

the variations in the seriousness of 

criminal history that may occur. This 

policy statement recognizes that 

consideration of whether additional 

aggravating or mitigating factors 

established by reliable information 

indicates that the criminal history 

category assigned does not adequately 

reflect the seriousness of the defendant’s 

criminal history or likelihood of 

recidivism is appropriate in determining 

the appropriate sentence to impose 

pursuant to 18 U.S.C. 3553(a).’’. 

The Commentary to § 4B1.1 captioned 

‘‘Application Notes’’ is amended by 

striking Note 4 as follows: 

‘‘4. Departure Provision for State 

Misdemeanors.—In a case in which one 

or both of the defendant’s ‘two prior 

felony convictions’ is based on an 

offense that was classified as a 

misdemeanor at the time of sentencing 

for the instant federal offense, 

application of the career offender 

guideline may result in a guideline 

range that substantially overrepresents 

the seriousness of the defendant’s 

criminal history or substantially 

overstates the seriousness of the instant 

offense. In such a case, a downward 

departure may be warranted without 

regard to the limitation in 

§ 4A1.3(b)(3)(A).’’. 

The Commentary to § 4B1.2 captioned 

‘‘Application Notes’’ is amended by 

striking Note 4 as follows: 

‘‘4. Upward Departure for Burglary 

Involving Violence.—There may be 

cases in which a burglary involves 

violence, but does not qualify as a 

‘crime of violence’ as defined in 

§ 4B1.2(a) and, as a result, the defendant 

does not receive a higher offense level 

or higher Criminal History Category that 

would have applied if the burglary 

qualified as a ‘crime of violence.’ In 

such a case, an upward departure may 

be appropriate.’’. 

The Commentary to § 4B1.2 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Considerations: 

1. State Misdemeanors.—In a case in 

which one or both of the defendant’s 

‘two prior felony convictions’ is based 

on an offense that was classified as a 

misdemeanor at the time of sentencing 

for the instant federal offense, evidence 

that application of the career offender 

guideline results in a guideline range 

that substantially overrepresents the 

seriousness of the defendant’s criminal 

history or substantially overstates the 

seriousness of the instant offense may 

be relevant in determining the 

appropriate sentence to impose under 

18 U.S.C. 3553(a). 

2. Offense Involving Violence.—In 

determining the appropriate sentence to 

impose under 18 U.S.C. 3553(a), 

evidence that a prior offense, such as 

burglary, involved violence but does not 

qualify as a ‘crime of violence’ as 

defined in § 4B1.2(a) may be relevant.’’. 

The Commentary to § 4B1.4 captioned 

‘‘Application Notes’’ is amended in 

Note 2, in the paragraph that begins ‘‘In 

a few cases’’, by striking ‘‘In such a case, 

an upward departure may be warranted 

so that the conviction under 18 U.S.C. 

844(h), § 924(c), or § 929(a) does not 

result in a decrease in the total 

punishment. An upward departure 

under this paragraph shall not exceed 

the maximum of the guideline range 

that would have resulted had there not 

been a count of conviction under 18 

U.S.C. 844(h), § 924(c), or § 929(a)’’ and 

inserting ‘‘In such a case, a sentence 

greater than the applicable guideline 

range may be warranted so that the 

conviction under 18 U.S.C. 844(h), 

§ 924(c), or § 929(a) does not result in a 

decrease in the total punishment. An 

increase in the total punishment under 

this paragraph shall not exceed the 

maximum of the guideline range that 

would have resulted had there not been 

a count of conviction under 18 U.S.C. 

844(h), § 924(c), or § 929(a)’’. 

The Commentary to § 4B1.4 captioned 

‘‘Background’’ is amended by striking 

‘‘§ 4A1.3 (Departures Based on 

Inadequacy of Criminal History 

Category (Policy Statement))’’ and 

inserting ‘‘§ 4A1.3 (Additional 

Considerations Based on Inadequacy of 

Criminal History Category (Policy 

Statement))’’. 

The Commentary to § 4C1.1 captioned 

‘‘Application Notes’’ is amended— 

in the heading by striking ‘‘Notes’’ 

and inserting ‘‘Note’’; 

and by striking Note 2 as follows: 

‘‘2. Upward Departure.—An upward 

departure may be warranted if an 

adjustment under this guideline 

substantially underrepresents the 

seriousness of the defendant’s criminal 

history. For example, an upward 

departure may be warranted if the 

defendant has a prior conviction or 

other comparable judicial disposition 

for an offense that involved violence or 

credible threats of violence.’’. 

The Commentary to § 4C1.1 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Consideration: 

1. Application of Adjustment.—In 

determining the appropriate sentence to 

impose under 18 U.S.C. 3553(a), 

information establishing that an 

adjustment under this guideline 

substantially underrepresents the 

seriousness of the defendant’s criminal 

history may be relevant. For example, a 

sentence greater than the applicable 

guideline range may be warranted if the 

defendant has a prior conviction or 

other comparable judicial disposition 

for an offense that involved violence or 

credible threats of violence.’’. 

Chapter Five is amended— 

in the heading by striking 

‘‘Determining the Sentence’’ and 

inserting ‘‘Determining the Sentencing 

Range and Options Under the 

Guidelines’’; 

and in the Introductory Commentary 

by striking the following: 

‘‘ For certain categories of offenses 

and offenders, the guidelines permit the 

court to impose either imprisonment or 

some other sanction or combination of 

sanctions. In determining the type of 

sentence to impose, the sentencing 

judge should consider the nature and 

seriousness of the conduct, the statutory 

purposes of sentencing, and the 

pertinent offender characteristics. A 

sentence is within the guidelines if it 

complies with each applicable section 

of this chapter. The court should impose 

a sentence sufficient, but not greater 

than necessary, to comply with the 

statutory purposes of sentencing. 18 

U.S.C. 3553(a).’’; 

and inserting the following: 

‘‘ Chapter Five sets forth the steps 

used to determine the applicable 

sentencing range based upon the 

guideline calculations made in Chapters 

Two through Four. For certain 

categories of offenses and offenders, the 

guidelines permit the court to impose 

either imprisonment or some other 

sanction or combination of sanctions. A 

sentence is within the guidelines if it 

complies with each applicable section 

of this chapter.’’. 

The Commentary to § 5C1.1 captioned 

‘‘Applications Notes’’ is amended— 

by striking Note 6 as follows: 

‘‘6. Departures Based on Specific 

Treatment Purpose.—There may be 

cases in which a departure from the 

sentencing options authorized for Zone 

C of the Sentencing Table (under which 

at least half the minimum term must be 

satisfied by imprisonment) to the 

sentencing options authorized for Zone 

B of the Sentencing Table (under which 

all or most of the minimum term may 


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be satisfied by intermittent confinement, 

community confinement, or home 

detention instead of imprisonment) is 

appropriate to accomplish a specific 

treatment purpose. Such a departure 

should be considered only in cases 

where the court finds that (A) the 

defendant is an abuser of narcotics, 

other controlled substances, or alcohol, 

or suffers from a significant mental 

illness, and (B) the defendant’s 

criminality is related to the treatment 

problem to be addressed. 

In determining whether such a 

departure is appropriate, the court 

should consider, among other things, (1) 

the likelihood that completion of the 

treatment program will successfully 

address the treatment problem, thereby 

reducing the risk to the public from 

further crimes of the defendant, and (2) 

whether imposition of less 

imprisonment than required by Zone C 

will increase the risk to the public from 

further crimes of the defendant. 

Examples: The following examples 

both assume the applicable guideline 

range is 12–18 months and the court 

departs in accordance with this 

application note. Under Zone C rules, 

the defendant must be sentenced to at 

least six months imprisonment. (1) The 

defendant is a nonviolent drug offender 

in Criminal History Category I and 

probation is not prohibited by statute. 

The court departs downward to impose 

a sentence of probation, with twelve 

months of intermittent confinement, 

community confinement, or home 

detention and participation in a 

substance abuse treatment program as 

conditions of probation. (2) The 

defendant is convicted of a Class A or 

B felony, so probation is prohibited by 

statute (see § 5B1.1(b)). The court 

departs downward to impose a sentence 

of one month imprisonment, with 

eleven months in community 

confinement or home detention and 

participation in a substance abuse 

treatment program as conditions of 

supervised release.’’; 

by redesignating Notes 7 through 10 

as Notes 6 through 9, respectively; 

and in Note 9 (as so redesignated) by 

striking the following: 

‘‘Zero-Point Offenders.— 

(A) Zero-Point Offenders in Zones A 

and B of the Sentencing Table.—If the 

defendant received an adjustment under 

§ 4C1.1 (Adjustment for Certain ZeroPoint Offenders) and the defendant’s 

applicable guideline range is in Zone A 

or B of the Sentencing Table, a sentence 

other than a sentence of imprisonment, 

in accordance with subsection (b) or 

(c)(3), is generally appropriate. See 28 

U.S.C. 994(j). 

(B) Departure for Cases Where the 

Applicable Guideline Range Overstates 

the Gravity of the Offense.—A 

departure, including a departure to a 

sentence other than a sentence of 

imprisonment, may be appropriate if the 

defendant received an adjustment under 

§ 4C1.1 (Adjustment for Certain ZeroPoint Offenders) and the defendant’s 

applicable guideline range overstates 

the gravity of the offense because the 

offense of conviction is not a crime of 

violence or an otherwise serious offense. 

See 28 U.S.C. 994(j).’’; 

and inserting the following: 

‘‘Zero-Point Offenders in Zones A and 

B of the Sentencing Table.—If the 

defendant received an adjustment under 

§ 4C1.1 (Adjustment for Certain ZeroPoint Offenders) and the defendant’s 

applicable guideline range is in Zone A 

or B of the Sentencing Table, a sentence 

other than a sentence of imprisonment, 

in accordance with subsection (b) or 

(c)(3), is generally appropriate. See 28 

U.S.C. 994(j).’’. 

The Commentary to § 5C1.1 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Considerations: 

1. Cases Where the Applicable 

Guideline Range of Zero-Point Offender 

Overstates the Gravity of the Offense.— 

A sentence other than a sentence of 

imprisonment may be appropriate if the 

defendant received an adjustment under 

§ 4C1.1 (Adjustment for Certain ZeroPoint Offenders) and the defendant’s 

applicable guideline range overstates 

the gravity of the offense because the 

offense of conviction is not a crime of 

violence or an otherwise serious offense. 

See 28 U.S.C. § 994(j). 

2. Specific Treatment Purpose.—A 

sentencing option other than those 

authorized by the applicable zone of the 

Sentencing Table may be appropriate to 

accomplish a specific treatment purpose 

addressing a problem (e.g., substance 

abuse, alcohol abuse, or mental illness) 

that is related to the defendant’s 

criminality.’’. 

The Commentary to § 5C1.2 captioned 

‘‘Application Notes’’ is amended by 

inserting at the end the following new 

Note 7: 

‘‘7. Interaction of § 5C1.2 and 

§ 4A1.3.—A defendant whose criminal 

history category was adjusted in 

accordance with § 4A1.3 (Additional 

Considerations Based on Inadequacy of 

Criminal History Category (Policy 

Statement)) does not meet the criminal 

history requirement of § 5C1.2(a)(1) if 

the defendant did not otherwise meet 

such requirement before application of 

§ 4A1.3.’’. 

The Commentary to § 5D1.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 1 by striking ‘‘The court may 

depart from this guideline and not 

impose a term of supervised release’’ 

and inserting ‘‘The court may not 

impose a term of supervised release’’; 

and in Note 3(C) by striking ‘‘§ 5H1.4 

(Physical Condition, Including Drug or 

Alcohol Dependence or Abuse; 

Gambling Addiction)’’ and inserting 

‘‘Subsection (a)(7) of § 6A1.2 (Factors 

Relating to Individual Circumstances 

(Policy Statement))’’. 

The Commentary to § 5E1.2 captioned 

‘‘Applications Notes’’ is amended— 

by striking Note 4 as follows: 

‘‘4. The Commission envisions that 

for most defendants, the maximum of 

the guideline fine range from subsection 

(c) will be at least twice the amount of 

gain or loss resulting from the offense. 

Where, however, two times either the 

amount of gain to the defendant or the 

amount of loss caused by the offense 

exceeds the maximum of the fine 

guideline, an upward departure from 

the fine guideline may be warranted. 

Moreover, where a sentence within 

the applicable fine guideline range 

would not be sufficient to ensure both 

the disgorgement of any gain from the 

offense that otherwise would not be 

disgorged (e.g., by restitution or 

forfeiture) and an adequate punitive 

fine, an upward departure from the fine 

guideline range may be warranted.’’; 

and by redesignating Notes 5, 6, and 

7 as Notes 4, 5, and 6, respectively. 

The Commentary to § 5E1.2 is 

amended by inserting at the end the 

following new Commentary: 

‘‘Additional Consideration: 

1. Additional Factors Relating to the 

Offense.—In determining the 

appropriate amount of the fine to 

impose pursuant to 18 U.S.C. 3553(a), 

evidence that the fine range determined 

under this guideline understates the 

seriousness of the offense (e.g., the 

applicable fine guideline range would 

not provide adequate punishment for 

the offense and ensure disgorgement of 

any gain from the offense) may be 

relevant.’’. 

The Commentary to § 5E1.3 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by striking ‘‘§ 8E1.1’’ and 

inserting ‘‘§ 9E1.1’’. 

The Commentary to § 5G1.1 is 

amended by striking ‘‘; a sentence of 

less than 48 months would be a 

guideline departure’’; and by striking ‘‘; 

a sentence of more than 60 months 

would be a guideline departure’’. 

The Commentary to § 5G1.3 captioned 

‘‘Application Notes’’ is amended— 

in Note 4(C) by striking ‘‘§ 7B1.3’’ and 

inserting ‘‘§ 8B1.3’’; 

by striking Note 4(E) as follows: 


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‘‘(E) Downward Departure.—Unlike 

subsection (b), subsection (d) does not 

authorize an adjustment of the sentence 

for the instant offense for a period of 

imprisonment already served on the 

undischarged term of imprisonment. 

However, in an extraordinary case 

involving an undischarged term of 

imprisonment under subsection (d), it 

may be appropriate for the court to 

downwardly depart. This may occur, for 

example, in a case in which the 

defendant has served a very substantial 

period of imprisonment on an 

undischarged term of imprisonment that 

resulted from conduct only partially 

within the relevant conduct for the 

instant offense. In such a case, a 

downward departure may be warranted 

to ensure that the combined punishment 

is not increased unduly by the fortuity 

and timing of separate prosecutions and 

sentencings. Nevertheless, it is intended 

that a departure pursuant to this 

application note result in a sentence 

that ensures a reasonable incremental 

punishment for the instant offense of 

conviction. 

To avoid confusion with the Bureau 

of Prisons’ exclusive authority provided 

under 18 U.S.C. 3585(b) to grant credit 

for time served under certain 

circumstances, the Commission 

recommends that any downward 

departure under this application note be 

clearly stated on the Judgment in a 

Criminal Case Order as a downward 

departure pursuant to § 5G1.3(d), rather 

than as a credit for time served.’’; 

and by striking Note 5 as follows: 

‘‘5. Downward Departure Provision.— 

In the case of a discharged term of 

imprisonment, a downward departure is 

not prohibited if the defendant (A) has 

completed serving a term of 

imprisonment; and (B) subsection (b) 

would have provided an adjustment had 

that completed term of imprisonment 

been undischarged at the time of 

sentencing for the instant offense. See 

§ 5K2.23 (Discharged Terms of 

Imprisonment).’’. 

The Commentary to § 5G1.3 is 

amended by inserting before the 

Commentary captioned ‘‘Background’’ 

the following new Commentary: 

‘‘Additional Considerations: 

1. Time Served on Undischarged 

Terms of Imprisonment.—Unlike 

subsection (b), subsection (d) does not 

authorize an adjustment of the sentence 

for the instant offense for a period of 

imprisonment already served on the 

undischarged term of imprisonment. 

However, in an extraordinary case 

involving an undischarged term of 

imprisonment under subsection (d), it 

may be appropriate for the court to 

impose a sentence below the otherwise 

applicable guideline range. This may 

occur, for example, in a case in which 

the defendant has served a very 

substantial period of imprisonment on 

an undischarged term of imprisonment 

that resulted from conduct only 

partially within the relevant conduct for 

the instant offense. In such a case, a 

sentence below the applicable guideline 

range may be warranted to ensure that 

the combined punishment is not 

increased unduly by the fortuity and 

timing of separate prosecutions and 

sentencings. Nevertheless, it is intended 

that a sentence below the applicable 

guideline range pursuant to this 

additional consideration result in a 

sentence that ensures a reasonable 

incremental punishment for the instant 

offense of conviction. 

To avoid confusion with the Bureau 

of Prisons’ exclusive authority provided 

under 18 U.S.C. 3585(b) to grant credit 

for time served under certain 

circumstances, the Commission 

recommends that any sentence below 

the applicable guideline range under 

this additional consideration be clearly 

stated as such on the Judgment in a 

Criminal Case Order, rather than as a 

credit for time served. 

2. Discharged Terms of 

Imprisonment.—In a case where (A) the 

defendant has completed serving a term 

of imprisonment, and (B) subsection (b) 

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

a Defendant Subject to Undischarged 

Term of Imprisonment or Anticipated 

Term of Imprisonment) would have 

provided an adjustment had that 

completed term of imprisonment been 

undischarged at the time of sentencing 

for the instant offense, it may be 

appropriate for the court to impose a 

sentence below the otherwise applicable 

guideline range.’’. 

Chapter Five is amended by striking 

Part H in its entirety as follows: 

‘‘Part H—Specific Offender 

Characteristics 

Introductory Commentary 

This part addresses the relevance of 

certain specific offender characteristics 

in sentencing. The Sentencing Reform 

Act (the ‘Act’) contains several 

provisions regarding specific offender 

characteristics: 

First, the Act directs the Commission 

to ensure that the guidelines and policy 

statements ‘are entirely neutral’ as to 

five characteristics—race, sex, national 

origin, creed, and socioeconomic status. 

See 28 U.S.C. 994(d). 

Second, the Act directs the 

Commission to consider whether eleven 

specific offender characteristics, ‘among 

others’, have any relevance to the 

nature, extent, place of service, or other 

aspects of an appropriate sentence, and 

to take them into account in the 

guidelines and policy statements only to 

the extent that they do have relevance. 

See 28 U.S.C. 994(d). 

Third, the Act directs the Commission 

to ensure that the guidelines and policy 

statements, in recommending a term of 

imprisonment or length of a term of 

imprisonment, reflect the ‘general 

inappropriateness’ of considering five of 

those characteristics—education; 

vocational skills; employment record; 

family ties and responsibilities; and 

community ties. See 28 U.S.C. 994(e). 

Fourth, the Act also directs the 

sentencing court, in determining the 

particular sentence to be imposed, to 

consider, among other factors, ‘the 

history and characteristics of the 

defendant’. See 18 U.S.C. 3553(a)(1). 

Specific offender characteristics are 

taken into account in the guidelines in 

several ways. One important specific 

offender characteristic is the defendant’s 

criminal history, see 28 U.S.C. 

994(d)(10), which is taken into account 

in the guidelines in Chapter Four 

(Criminal History and Criminal 

Livelihood). See § 5H1.8 (Criminal 

History). Another specific offender 

characteristic in the guidelines is the 

degree of dependence upon criminal 

history for a livelihood, see 28 U.S.C. 

994(d)(11), which is taken into account 

in Chapter Four, Part B (Career 

Offenders and Criminal Livelihood). See 

§ 5H1.9 (Dependence upon Criminal 

Activity for a Livelihood). Other specific 

offender characteristics are accounted 

for elsewhere in this manual. See, e.g., 

§§ 2C1.1(a)(1) and 2C1.2(a)(1) (providing 

alternative base offense levels if the 

defendant was a public official); 3B1.3 

(Abuse of Position of Trust or Use of 

Special Skill); and 3E1.1 (Acceptance of 

Responsibility). 

The Supreme Court has emphasized 

that the advisory guideline system 

should ‘continue to move sentencing in 

Congress’ preferred direction, helping to 

avoid excessive sentencing disparities 

while maintaining flexibility sufficient 

to individualize sentences where 

necessary.’ See United States v. Booker, 

543 U.S. 220, 264–65 (2005). Although 

the court must consider ‘the history and 

characteristics of the defendant’ among 

other factors, see 18 U.S.C. 3553(a), in 

order to avoid unwarranted sentencing 

disparities the court should not give 

them excessive weight. Generally, the 

most appropriate use of specific 

offender characteristics is to consider 

them not as a reason for a sentence 

outside the applicable guideline range 

but for other reasons, such as in 

determining the sentence within the 


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applicable guideline range, the type of 

sentence (e.g., probation or 

imprisonment) within the sentencing 

options available for the applicable 

Zone on the Sentencing Table, and 

various other aspects of an appropriate 

sentence. To avoid unwarranted 

sentencing disparities among 

defendants with similar records who 

have been found guilty of similar 

conduct, see 18 U.S.C. 3553(a)(6), 28 

U.S.C. 991(b)(1)(B), the guideline range, 

which reflects the defendant’s criminal 

conduct and the defendant’s criminal 

history, should continue to be ‘the 

starting point and the initial 

benchmark.’ Gall v. United States, 552 

U.S. 38, 49 (2007). 

Accordingly, the purpose of this part 

is to provide sentencing courts with a 

framework for ad-dressing specific 

offender characteristics in a reasonably 

consistent manner. Using such a 

framework in a uniform manner will 

help ‘secure nationwide consistency,’ 

see Gall v. United States, 552 U.S. 38, 

49 (2007), ‘avoid unwarranted 

sentencing disparities,’ see 28 U.S.C. 

991(b)(1)(B), 18 U.S.C. 3553(a)(6), 

‘provide certainty and fairness,’ see 28 

U.S.C. 991(b)(1)(B), and ‘promote 

respect for the law,’ see 18 U.S.C. 

3553(a)(2)(A). 

This part allocates specific offender 

characteristics into three general 

categories. 

In the first category are specific 

offender characteristics the 

consideration of which Congress has 

prohibited (e.g., § 5H1.10 (Race, Sex, 

National Origin, Creed, Religion, and 

Socio-Economic Status)) or that the 

Commission has determined should be 

prohibited. 

In the second category are specific 

offender characteristics that Congress 

directed the Commission to take into 

account in the guidelines only to the 

extent that they have relevance to 

sentencing. See 28 U.S.C. 994(d). For 

some of these, the policy statements 

indicate that these characteristics may 

be relevant in determining whether a 

sentence outside the applicable 

guideline range is warranted (e.g., age; 

mental and emotional condition; 

physical condition). These 

characteristics may warrant a sentence 

outside the applicable guideline range if 

the characteristic, individually or in 

combination with other such 

characteristics, is present to an unusual 

degree and distinguishes the case from 

the typical cases covered by the 

guidelines. These specific offender 

characteristics also may be considered 

for other reasons, such as in 

determining the sentence within the 

applicable guideline range, the type of 

sentence (e.g., probation or 

imprisonment) within the sentencing 

options available for the applicable 

Zone on the Sentencing Table, and 

various other aspects of an appropriate 

sentence. 

In the third category are specific 

offender characteristics that Congress 

directed the Commission to ensure are 

reflected in the guidelines and policy 

statements as generally inappropriate in 

recommending a term of imprisonment 

or length of a term of imprisonment. See 

28 U.S.C. 994(e). The policy statements 

indicate that these characteristics are 

not ordinarily relevant to the 

determination of whether a sentence 

should be outside the applicable 

guideline range. Unless expressly stated, 

this does not mean that the Commission 

views such circumstances as necessarily 

inappropriate to the determination of 

the sentence within the applicable 

guideline range, the type of sentence 

(e.g., probation or imprisonment) within 

the sentencing options available for the 

applicable Zone on the Sentencing 

Table, or various other aspects of an 

appropriate sentence (e.g., the 

appropriate conditions of probation or 

supervised release). Furthermore, 

although these circumstances are not 

ordinarily relevant to the determination 

of whether a sentence should be outside 

the applicable guideline range, they may 

be relevant to this determination in 

exceptional cases. They also may be 

relevant if a combination of such 

circumstances makes the case an 

exceptional one, but only if each such 

circumstance is identified as an 

affirmative ground for departure and is 

present in the case to a substantial 

degree. See § 5K2.0 (Grounds for 

Departure). 

As with the other provisions in this 

manual, these policy statements ‘are 

evolutionary in nature’. See Chapter 

One, Part A, Subpart 2 (Continuing 

Evolution and Role of the Guidelines); 

28 U.S.C. 994(o). The Commission 

expects, and the Sentencing Reform Act 

contemplates, that continuing research, 

experience, and analysis will result in 

modifications and revisions. 

The nature, extent, and significance of 

specific offender characteristics can 

involve a range of considerations. The 

Commission will continue to provide 

information to the courts on the 

relevance of specific offender 

characteristics in sentencing, as the 

Sentencing Reform Act contemplates. 

See, e.g., 28 U.S.C. 995(a)(12)(A) (the 

Commission serves as a ‘clearinghouse 

and information center’ on federal 

sentencing). Among other things, this 

may include information on the use of 

specific offender characteristics, 

individually and in combination, in 

determining the sentence to be imposed 

(including, where available, information 

on rates of use, criteria for use, and 

reasons for use); the relationship, if any, 

between specific offender characteristics 

and (A) the ‘forbidden factors’ specified 

in 28 U.S.C. 994(d) and (B) the 

‘discouraged factors’ specified in 28 

U.S.C. 994(e); and the relationship, if 

any, between specific offender 

characteristics and the statutory 

purposes of sentencing. 

§ 5H1.1. Age (Policy Statement) 

Age (including youth) may be relevant 

in determining whether a departure is 

warranted, if considerations based on 

age, individually or in combination with 

other offender characteristics, are 

present to an unusual degree and 

distinguish the case from the typical 

cases covered by the guidelines. Age 

may be a reason to depart downward in 

a case in which the defendant is elderly 

and in-firm and where a form of 

punishment such as home confinement 

might be equally efficient as and less 

costly than incarceration. Physical 

condition, which may be related to age, 

is addressed at § 5H1.4 (Physical 

Condition, Including Drug or Alcohol 

Dependence or Abuse; Gambling 

Addiction). 

§ 5H1.2. Education and Vocational 

Skills (Policy Statement) 

Education and vocational skills are 

not ordinarily relevant in determining 

whether a departure is warranted, but 

the extent to which a defendant may 

have misused special training or 

education to facilitate criminal activity 

is an express guideline factor. See 

§ 3B1.3 (Abuse of Position of Trust or 

Use of Special Skill). 

Education and vocational skills may 

be relevant in determining the 

conditions of probation or supervised 

release for rehabilitative purposes, for 

public protection by restricting 

activities that allow for the utilization of 

a certain skill, or in determining the 

appropriate type of community service. 

§ 5H1.3. Mental and Emotional 

Conditions (Policy Statement) 

Mental and emotional conditions may 

be relevant in determining whether a 

departure is warranted, if such 

conditions, individually or in 

combination with other offender 

characteristics, are present to an 

unusual degree and distinguish the case 

from the typical cases covered by the 

guidelines. See also Chapter Five, Part 

K, Subpart 2 (Other Grounds for 

Departure). 


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In certain cases a downward 

departure may be appropriate to 

accomplish a specific treatment 

purpose. See § 5C1.1, Application Note 

7. 

Mental and emotional conditions may 

be relevant in determining the 

conditions of probation or supervised 

release; e.g., participation in a mental 

health program (see §§ 5B1.3(d)(5) and 

5D1.3(d)(5)). 

§ 5H1.4. Physical Condition, Including 

Drug or Alcohol Dependence or Abuse; 

Gambling Addiction (Policy Statement) 

Physical condition or appearance, 

including physique, may be relevant in 

determining whether a departure is 

warranted, if the condition or 

appearance, individually or in 

combination with other offender 

characteristics, is present to an unusual 

degree and distinguishes the case from 

the typical cases covered by the 

guidelines. An extraordinary physical 

impairment may be a reason to de-part 

downward; e.g., in the case of a 

seriously infirm defendant, home 

detention may be as efficient as, and 

less costly than, imprisonment. 

Drug or alcohol dependence or abuse 

ordinarily is not a reason for a 

downward departure. Substance abuse 

is highly correlated to an increased 

propensity to commit crime. Due to this 

increased risk, it is highly 

recommended that a defendant who is 

incarcerated also be sentenced to 

supervised release with a requirement 

that the defendant participate in an 

appropriate substance abuse program 

(see § 5D1.3(d)(4)). If participation in a 

substance abuse program is required, 

the length of supervised release should 

take into account the length of time 

necessary for the probation office to 

judge the success of the program. 

In certain cases a downward 

departure may be appropriate to 

accomplish a specific treatment 

purpose. See § 5C1.1, Application Note 

7. 

In a case in which a defendant who 

is a substance abuser is sentenced to 

probation, it is strongly recommended 

that the conditions of probation contain 

a requirement that the defendant 

participate in an appropriate substance 

abuse program (see § 5B1.3(d)(4)). 

Addiction to gambling is not a reason 

for a downward departure. 

§ 5H1.5. Employment Record (Policy 

Statement) 

Employment record is not ordinarily 

relevant in determining whether a 

departure is warranted. 

Employment record may be relevant 

in determining the conditions of 

probation or supervised release (e.g., the 

appropriate hours of home detention). 

§ 5H1.6. Family Ties and 

Responsibilities (Policy Statement) 

In sentencing a defendant convicted 

of an offense other than an offense described in the following paragraph, 

family ties and responsibilities are not 

ordinarily relevant in determining 

whether a departure may be warranted. 

In sentencing a defendant convicted 

of an offense involving a minor victim 

under section 1201, an offense under 

section 1591, or an offense under 

chapter 71, 109A, 110, or 117, of title 

18, United States Code, family ties and 

responsibilities and community ties are 

not relevant in determining whether a 

sentence should be below the applicable 

guideline range. 

Family responsibilities that are 

complied with may be relevant to the 

determination of the amount of 

restitution or fine. 

Commentary 

Application Note: 

1. Circumstances to Consider.— 

(A) In General.—In determining 

whether a departure is warranted under 

this policy statement, the court shall 

consider the following non-exhaustive 

list of circumstances: 

(i) The seriousness of the offense. 

(ii) The involvement in the offense, if 

any, of members of the defendant’s 

family. 

(iii) The danger, if any, to members of 

the defendant’s family as a result of the 

offense. 

(B) Departures Based on Loss of 

Caretaking or Financial Support.—A 

departure under this policy statement 

based on the loss of caretaking or 

financial support of the defendant’s 

family requires, in addition to the 

court’s consideration of the nonexhaustive list of circumstances in 

subdivision (A), the presence of the 

following circumstances: 

(i) The defendant’s service of a 

sentence within the applicable 

guideline range will cause a substantial, 

direct, and specific loss of essential 

caretaking, or essential financial 

support, to the defendant’s family. 

(ii) The loss of caretaking or financial 

support substantially exceeds the harm 

ordinarily incident to incarceration for a 

similarly situated defendant. For 

example, the fact that the defendant’s 

family might incur some degree of 

financial hardship or suffer to some 

extent from the absence of a parent 

through incarceration is not in itself 

sufficient as a basis for departure 

because such hardship or suffering is of 

a sort ordinarily incident to 

incarceration. 

(iii) The loss of caretaking or financial 

support is one for which no effective 

remedial or ameliorative programs 

reasonably are available, making the 

defendant’s caretaking or financial 

support irreplaceable to the defendant’s 

family. 

(iv) The departure effectively will 

address the loss of caretaking or 

financial support. 

Background: Section 401(b)(4) of 

Public Law 108–21 directly amended 

this policy statement to add the second 

paragraph, effective April 30, 2003. 

§ 5H1.7. Role in the Offense (Policy 

Statement) 

A defendant’s role in the offense is 

relevant in determining the applicable 

guideline range (see Chapter Three, Part 

B (Role in the Offense)) but is not a basis 

for departing from that range (see 

subsection (d) of § 5K2.0 (Grounds for 

Departures)). 

§ 5H1.8. Criminal History (Policy 

Statement) 

A defendant’s criminal history is 

relevant in determining the applicable 

criminal history category. See Chapter 

Four (Criminal History and Criminal 

Livelihood). For grounds of departure 

based on the defendant’s criminal 

history, see § 4A1.3 (Departures Based 

on Inadequacy of Criminal History 

Category). 

§ 5H1.9. Dependence upon Criminal 

Activity for a Livelihood (Policy 

Statement) 

The degree to which a defendant 

depends upon criminal activity for a 

livelihood is relevant in determining the 

appropriate sentence. See Chapter Four, 

Part B (Career Offenders and Criminal 

Livelihood). 

§ 5H1.10. Race, Sex, National Origin, 

Creed, Religion, and Socio-Economic 

Status (Policy Statement) 

These factors are not relevant in the 

determination of a sentence. 

§ 5H1.11. Military, Civic, Charitable, or 

Public Service; Employment-Related 

Contributions; Record of Prior Good 

Works (Policy Statement) 

Military service may be relevant in 

determining whether a departure is warranted, if the military service, 

individually or in combination with 

other offender characteristics, is present 

to an unusual degree and distinguishes 

the case from the typical cases covered 

by the guidelines. 

Civic, charitable, or public service; 

employment-related contributions; and 


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similar prior good works are not 

ordinarily relevant in determining 

whether a departure is warranted. 

§ 5H1.12. Lack of Guidance as a Youth 

and Similar Circumstances (Policy 

Statement) 

Lack of guidance as a youth and 

similar circumstances indicating a 

disadvantaged upbringing are not 

relevant grounds in determining 

whether a departure is warranted.’’. 

Chapter Five, Part K is amended in 

the heading by striking ‘‘DEPARTURES’’ 

and inserting ‘‘ASSISTANCE TO 

AUTHORITIES’’. 

Chapter Five, Part K, Subpart 1 is 

amended by striking the heading as 

follows: 

‘‘1. Substantial Assistance To 

Authorities’’ 

Section 5K1.1 is amended by striking 

‘‘the court may depart from the 

guidelines’’ and inserting ‘‘the court 

may impose a sentence that is below the 

otherwise applicable guideline range’’. 

Chapter Five, Part K is amended by 

striking Subparts 2 and 3 in their 

entirety as follows: 

‘‘2. Other Grounds For Departure 

§ 5K2.0. Grounds for Departure (Policy 

Statement) 

(a) Upward Departures in General and 

Downward Departures in Criminal 

Cases Other than Child Crimes and 

Sexual Offenses.— 

(1) In General.—The sentencing court 

may depart from the applicable 

guideline range if— 

(A) in the case of offenses other than 

child crimes and sexual offenses, the 

court finds, pursuant to 18 U.S.C. 

3553(b)(1), that there exists an 

aggravating or mitigating circumstance; 

or 

(B) in the case of child crimes and 

sexual offenses, the court finds, 

pursuant to 18 U.S.C. 3553(b)(2)(A)(i), 

that there exists an aggravating 

circumstance, 

of a kind, or to a degree, not 

adequately taken into consideration by 

the Sentencing Commission in 

formulating the guidelines that, in order 

to advance the objectives set forth in 18 

U.S.C. 3553(a)(2), should result in a 

sentence different from that described. 

(2) Departures Based on 

Circumstances of a Kind Not 

Adequately Taken into Consideration.— 

(A) Identified Circumstances.—This 

subpart (Chapter Five, Part K, Subpart 2 

(Other Grounds for Departure)) 

identifies some of the circumstances 

that the Commission may have not 

adequately taken into consideration in 

determining the applicable guideline 

range (e.g., as a specific offense 

characteristic or other adjustment). If 

any such circumstance is present in the 

case and has not adequately been taken 

into consideration in determining the 

applicable guideline range, a departure 

consistent with 18 U.S.C. 3553(b) and 

the provisions of this subpart may be 

warranted. 

(B) Unidentified Circumstances.—A 

departure may be warranted in the 

exceptional case in which there is 

present a circumstance that the 

Commission has not identified in the 

guidelines but that nevertheless is 

relevant to determining the appropriate 

sentence. 

(3) Departures Based on 

Circumstances Present to a Degree Not 

Adequately Taken into Consideration.— 

A departure may be warranted in an 

exceptional case, even though the 

circumstance that forms the basis for the 

departure is taken into consideration in 

determining the guideline range, if the 

court determines that such circumstance 

is present in the offense to a degree 

substantially in excess of, or 

substantially below, that which 

ordinarily is involved in that kind of 

offense. 

(4) Departures Based on Not 

Ordinarily Relevant Offender 

Characteristics and Other 

Circumstances.—An offender 

characteristic or other circumstance 

identified in Chapter Five, Part H 

(Offender Characteristics) or elsewhere 

in the guidelines as not ordinarily 

relevant in determining whether a 

departure is warranted may be relevant 

to this determination only if such 

offender characteristic or other 

circumstance is present to an 

exceptional degree. 

(b) Downward Departures in Child 

Crimes and Sexual Offenses.—Under 18 

U.S.C. 3553(b)(2)(A)(ii), the sentencing 

court may impose a sentence below the 

range established by the applicable 

guidelines only if the court finds that 

there exists a mitigating circumstance of 

a kind, or to a degree, that— 

(1) has been affirmatively and 

specifically identified as a permissible 

ground of downward departure in the 

sentencing guidelines or policy 

statements issued under section 994(a) 

of title 28, United States Code, taking 

account of any amendments to such 

sentencing guidelines or policy 

statements by act of Congress; 

(2) has not adequately been taken into 

consideration by the Sentencing 

Commission in formulating the 

guidelines; and 

(3) should result in a sentence 

different from that described. 

The grounds enumerated in this Part 

K of Chapter Five are the sole grounds 

that have been affirmatively and 

specifically identified as a permissible 

ground of downward departure in these 

sentencing guidelines and policy 

statements. Thus, notwithstanding any 

other reference to authority to depart 

downward elsewhere in this Sentencing 

Manual, a ground of downward 

departure has not been affirmatively and 

specifically identified as a permissible 

ground of downward departure within 

the meaning of section 3553(b)(2) unless 

it is expressly enumerated in this Part 

K as a ground upon which a downward 

departure may be granted. 

(c) Limitation on Departures Based on 

Multiple Circumstances.—The court 

may depart from the applicable 

guideline range based on a combination 

of two or more offender characteristics 

or other circumstances, none of which 

independently is sufficient to provide a 

basis for departure, only if— 

(1) such offender characteristics or 

other circumstances, taken together, 

make the case an exceptional one; and 

(2) each such offender characteristic 

or other circumstance is— 

(A) present to a substantial degree; 

and 

(B) identified in the guidelines as a 

permissible ground for departure, even 

if such offender characteristic or other 

circumstance is not ordinarily relevant 

to a determination of whether a 

departure is warranted. 

(d) Prohibited Departures.— 

Notwithstanding subsections (a) and (b) 

of this policy statement, or any other 

provision in the guidelines, the court 

may not depart from the applicable 

guideline range based on any of the 

following circumstances: 

(1) Any circumstance specifically 

prohibited as a ground for departure in 

§§ 5H1.10 (Race, Sex, National Origin, 

Creed, Religion, and Socio-Economic 

Status), 5H1.12 (Lack of Guidance as a 

Youth and Similar Circumstances), the 

last sentence of 5H1.4 (Physical 

Condition, Including Drug or Alcohol 

Dependence or Abuse; Gambling 

Addiction), and the last sentence of 

5K2.12 (Coercion and Duress). 

(2) The defendant’s acceptance of 

responsibility for the offense, which 

may be taken into account only under 

§ 3E1.1 (Acceptance of Responsibility). 

(3) The defendant’s aggravating or 

mitigating role in the offense, which 

may be taken into account only under 

§ 3B1.1 (Aggravating Role) or § 3B1.2 

(Mitigating Role), respectively. 

(4) The defendant’s decision, in and 

of itself, to plead guilty to the offense or 

to enter a plea agreement with respect 

to the offense (i.e., a departure may not 


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be based merely on the fact that the 

defendant decided to plead guilty or to 

enter into a plea agreement, but a 

departure may be based on justifiable, 

non-prohibited reasons as part of a 

sentence that is recommended, or 

agreed to, in the plea agreement and 

accepted by the court. See § 6B1.2 

(Standards for Acceptance of Plea 

Agreement). 

(5) The defendant’s fulfillment of 

restitution obligations only to the extent 

required by law including the 

guidelines (i.e., a departure may not be 

based on unexceptional efforts to 

remedy the harm caused by the offense). 

(6) Any other circumstance 

specifically prohibited as a ground for 

departure in the guidelines. 

(e) Requirement of Specific Reasons 

for Departure.—If the court departs from 

the applicable guideline range, it shall 

state, pursuant to 18 U.S.C. 3553(c), its 

specific reasons for departure in open 

court at the time of sentencing and, with 

limited exception in the case of 

statements received in camera, shall 

state those reasons with specificity in 

the statement of reasons form. 

Commentary 

Application Notes: 

1. Definitions.—For purposes of this 

policy statement: 

‘Circumstance’ includes, as 

appropriate, an offender characteristic 

or any other offense factor. 

‘Depart’, ‘departure’, ‘downward 

departure’, and ‘upward departure’ have 

the meaning given those terms in 

Application Note 1 of the Commentary 

to § 1B1.1 (Application Instructions). 

2. Scope of this Policy Statement.— 

(A) Departures Covered by this Policy 

Statement.—This policy statement 

covers departures from the applicable 

guideline range based on offense 

characteristics or offender 

characteristics of a kind, or to a degree, 

not adequately taken into consideration 

in determining that range. See 18 U.S.C. 

3553(b). 

Subsection (a) of this policy statement 

applies to upward departures in all 

cases covered by the guidelines and to 

downward departures in all such cases 

except for downward departures in 

child crimes and sexual offenses. 

Subsection (b) of this policy statement 

applies only to downward departures in 

child crimes and sexual offenses. 

(B) Departures Covered by Other 

Guidelines.—This policy statement does 

not cover the following departures, 

which are addressed elsewhere in the 

guidelines: (i) departures based on the 

defendant’s criminal history (see 

Chapter Four (Criminal History and 

Criminal Livelihood), particularly 

§ 4A1.3 (Departures Based on 

Inadequacy of Criminal History 

Category)); (ii) departures based on the 

defendant’s substantial assistance to the 

authorities (see § 5K1.1 (Substantial 

Assistance to Authorities)); and (iii) 

departures based on early disposition 

programs (see § 5K3.1 (Early Disposition 

Programs)). 

3. Kinds and Expected Frequency of 

Departures under Subsection (a).—As 

set forth in subsection (a), there 

generally are two kinds of departures 

from the guidelines based on offense 

characteristics and/or offender 

characteristics: (A) departures based on 

circumstances of a kind not adequately 

taken into consideration in the 

guidelines; and (B) departures based on 

circumstances that are present to a 

degree not adequately taken into 

consideration in the guidelines. 

(A) Departures Based on 

Circumstances of a Kind Not 

Adequately Taken into Account in 

Guidelines.—Subsection (a)(2) 

authorizes the court to depart if there 

exists an aggravating or a mitigating 

circumstance in a case under 18 U.S.C. 

3553(b)(1), or an aggravating 

circumstance in a case under 18 U.S.C. 

3553(b)(2)(A)(i), of a kind not 

adequately taken into consideration in 

the guidelines. 

(i) Identified Circumstances.—This 

subpart (Chapter Five, Part K, Subpart 2) 

identifies several circumstances that the 

Commission may have not adequately 

taken into consideration in setting the 

offense level for certain cases. Offense 

guidelines in Chapter Two (Offense 

Conduct) and adjustments in Chapter 

Three (Adjustments) sometimes identify 

circumstances the Commission may 

have not adequately taken into 

consideration in setting the offense level 

for offenses covered by those guidelines. 

If the offense guideline in Chapter Two 

or an adjustment in Chapter Three does 

not adequately take that circumstance 

into consideration in setting the offense 

level for the offense, and only to the 

extent not adequately taken into 

consideration, a departure based on that 

circumstance may be warranted. 

(ii) Unidentified Circumstances.—A 

case may involve circumstances, in 

addition to those identified by the 

guidelines, that have not adequately 

been taken into consideration by the 

Commission, and the presence of any 

such circumstance may warrant 

departure from the guidelines in that 

case. However, inasmuch as the 

Commission has continued to monitor 

and refine the guidelines since their 

inception to take into consideration 

relevant circumstances in sentencing, it 

is expected that departures based on 

such unidentified circumstances will 

occur rarely and only in exceptional 

cases. 

(B) Departures Based on 

Circumstances Present to a Degree Not 

Adequately Taken into Consideration in 

Guidelines.— 

(i) In General.—Subsection (a)(3) 

authorizes the court to depart if there 

exists an aggravating or a mitigating 

circumstance in a case under 18 U.S.C. 

3553(b)(1), or an aggravating 

circumstance in a case under 18 U.S.C. 

3553(b)(2)(A)(i), to a degree not 

adequately taken into consideration in 

the guidelines. However, inasmuch as 

the Commission has continued to 

monitor and refine the guidelines since 

their inception to determine the most 

appropriate weight to be accorded the 

mitigating and aggravating 

circumstances specified in the 

guidelines, it is expected that departures 

based on the weight accorded to any 

such circumstance will occur rarely and 

only in exceptional cases. 

(ii) Examples.—As set forth in 

subsection (a)(3), if the applicable 

offense guideline and adjustments take 

into consideration a circumstance 

identified in this subpart, departure is 

warranted only if the circumstance is 

present to a degree substantially in 

excess of that which ordinarily is 

involved in the offense. Accordingly, a 

departure pursuant to § 5K2.7 for the 

disruption of a governmental function 

would have to be substantial to warrant 

departure from the guidelines when the 

applicable offense guideline is bribery 

or obstruction of justice. When the 

guideline covering the mailing of 

injurious articles is applicable, however, 

and the offense caused disruption of a 

governmental function, departure from 

the applicable guideline range more 

readily would be appropriate. Similarly, 

physical injury would not warrant 

departure from the guidelines when the 

robbery offense guideline is applicable 

because the robbery guideline includes 

a specific adjustment based on the 

extent of any injury. However, because 

the robbery guideline does not deal with 

injury to more than one victim, 

departure may be warranted if several 

persons were injured. 

(C) Departures Based on 

Circumstances Identified as Not 

Ordinarily Relevant.—Because certain 

circumstances are specified in the 

guidelines as not ordinarily relevant to 

sentencing (see, e.g., Chapter Five, Part 

H (Specific Offender Characteristics)), a 

departure based on any one of such 

circumstances should occur only in 

exceptional cases, and only if the 

circumstance is present in the case to an 

exceptional degree. If two or more of 


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such circumstances each is present in 

the case to a substantial degree, 

however, and taken together make the 

case an exceptional one, the court may 

consider whether a departure would be 

warranted pursuant to subsection (c). 

Departures based on a combination of 

not ordinarily relevant circumstances 

that are present to a substantial degree 

should occur extremely rarely and only 

in exceptional cases. 

In addition, as required by subsection 

(e), each circumstance forming the basis 

for a departure described in this 

subdivision shall be stated with 

specificity in the statement of reasons 

form. 

4. Downward Departures in Child 

Crimes and Sexual Offenses.— 

(A) Definition.—For purposes of this 

policy statement, the term ‘child crimes 

and sexual offenses’ means offenses 

under any of the following: 18 U.S.C. 

1201 (involving a minor victim), 18 

U.S.C. 1591, or chapter 71, 109A, 110, 

or 117 of title 18, United States Code. 

(B) Standard for Departure.— 

(i) Requirement of Affirmative and 

Specific Identification of Departure 

Ground.—The standard for a downward 

departure in child crimes and sexual 

offenses differs from the standard for 

other departures under this policy 

statement in that it includes a 

requirement, set forth in 18 U.S.C. 

3553(b)(2)(A)(ii)(I) and subsection (b)(1) 

of this guideline, that any mitigating 

circumstance that forms the basis for 

such a downward departure be 

affirmatively and specifically identified 

as a ground for downward departure in 

this part (i.e., Chapter Five, Part K). 

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

The commentary in Application Note 3 

of this policy statement, except for the 

commentary in Application Note 

3(A)(ii) relating to unidentified 

circumstances, shall apply to the court’s 

determination of whether a case meets 

the requirement, set forth in subsection 

18 U.S.C. 3553(b)(2)(A)(ii)(II) and 

subsection (b)(2) of this policy 

statement, that the mitigating 

circumstance forming the basis for a 

downward departure in child crimes 

and sexual offenses be of kind, or to a 

degree, not adequately taken into 

consideration by the Commission. 

5. Departures Based on Plea 

Agreements.—Subsection (d)(4) 

prohibits a downward departure based 

only on the defendant’s decision, in and 

of itself, to plead guilty to the offense or 

to enter a plea agreement with respect 

to the offense. Even though a departure 

may not be based merely on the fact that 

the defendant agreed to plead guilty or 

enter a plea agreement, a departure may 

be based on justifiable, non-prohibited 

reasons for departure as part of a 

sentence that is recommended, or 

agreed to, in the plea agreement and 

accepted by the court. See § 6B1.2 

(Standards for Acceptance of Plea 

Agreements). In cases in which the 

court departs based on such reasons as 

set forth in the plea agreement, the court 

must state the reasons for departure 

with specificity in the statement of 

reasons form, as required by subsection 

(e). 

Background: This policy statement 

sets forth the standards for departing 

from the applicable guideline range 

based on offense and offender 

characteristics of a kind, or to a degree, 

not adequately considered by the 

Commission. Circumstances the 

Commission has determined are not 

ordinarily relevant to determining 

whether a departure is warranted or are 

prohibited as bases for departure are 

addressed in Chapter Five, Part H 

(Offender Characteristics) and in this 

policy statement. Other departures, such 

as those based on the defendant’s 

criminal history, the defendant’s 

substantial assistance to authorities, and 

early disposition programs, are 

addressed elsewhere in the guidelines. 

As acknowledged by Congress in the 

Sentencing Reform Act and by the 

Commission when the first set of 

guidelines was promulgated, ‘it is 

difficult to prescribe a single set of 

guidelines that encompasses the vast 

range of human conduct potentially 

relevant to a sentencing decision.’ (See 

Chapter One, Part A). Departures, 

therefore, perform an integral function 

in the sentencing guideline system. 

Departures permit courts to impose an 

appropriate sentence in the exceptional 

case in which mechanical application of 

the guidelines would fail to achieve the 

statutory purposes and goals of 

sentencing. Departures also help 

maintain ‘sufficient flexibility to permit 

individualized sentences when 

warranted by mitigating or aggravating 

factors not taken into account in the 

establishment of general sentencing 

practices.’ 28 U.S.C. 991(b)(1)(B). By 

monitoring when courts depart from the 

guidelines and by analyzing their stated 

reasons for doing so, along with 

appellate cases reviewing these 

departures, the Commission can further 

refine the guidelines to specify more 

precisely when departures should and 

should not be permitted. 

As reaffirmed in the Prosecutorial 

Remedies and Other Tools to end the 

Exploitation of Children Today Act of 

2003 (the ‘PROTECT Act’, Public Law 

108–21), circumstances warranting 

departure should be rare. Departures 

were never intended to permit 

sentencing courts to substitute their 

policy judgments for those of Congress 

and the Sentencing Commission. 

Departure in such circumstances would 

produce unwarranted sentencing 

disparity, which the Sentencing Reform 

Act was designed to avoid. 

In order for appellate courts to fulfill 

their statutory duties under 18 U.S.C. 

3742 and for the Commission to fulfill 

its ongoing responsibility to refine the 

guidelines in light of information it 

receives on departures, it is essential 

that sentencing courts state with 

specificity the reasons for departure, as 

required by the PROTECT Act. 

This policy statement, including its 

commentary, was substantially revised, 

effective October 27, 2003, in response 

to directives contained in the PROTECT 

Act, particularly the directive in section 

401(m) of that Act to— 

‘(1) review the grounds of downward 

departure that are authorized by the 

sentencing guidelines, policy 

statements, and official commentary of 

the Sentencing Commission; and 

(2) promulgate, pursuant to section 

994 of title 28, United States Code— 

(A) appropriate amendments to the 

sentencing guidelines, policy 

statements, and official commentary to 

ensure that the incidence of downward 

departures is substantially reduced; 

(B) a policy statement authorizing a 

departure pursuant to an early 

disposition program; and 

(C) any other conforming amendments 

to the sentencing guidelines, policy 

statements, and official commentary of 

the Sentencing Commission 

necessitated by the Act, including a 

revision of . . . section 5K2.0’. 

The substantial revision of this policy 

statement in response to the PROTECT 

Act was intended to refine the standards 

applicable to departures while giving 

due regard for concepts, such as the 

‘heartland’, that have evolved in 

departure jurisprudence over time. 

Section 401(b)(1) of the PROTECT Act 

directly amended this policy statement 

to add subsection (b), effective April 30, 

2003. 

§ 5K2.1. Death (Policy Statement) 

If death resulted, the court may 

increase the sentence above the 

authorized guideline range. 

Loss of life does not automatically 

suggest a sentence at or near the 

statutory maximum. The sentencing 

judge must give consideration to matters 

that would normally distinguish among 

levels of homicide, such as the 

defendant’s state of mind and the degree 

of planning or preparation. Other 

appropriate factors are whether multiple 

deaths resulted, and the means by 


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which life was taken. The extent of the 

increase should depend on the 

dangerousness of the defendant’s 

conduct, the extent to which death or 

serious injury was intended or 

knowingly risked, and the extent to 

which the offense level for the offense 

of conviction, as determined by the 

other Chapter Two guidelines, already 

reflects the risk of personal injury. For 

example, a substantial increase may be 

appropriate if the death was intended or 

knowingly risked or if the underlying 

offense was one for which base offense 

levels do not reflect an allowance for the 

risk of personal injury, such as fraud. 

§ 5K2.2. Physical Injury (Policy 

Statement) 

If significant physical injury resulted, 

the court may increase the sentence 

above the authorized guideline range. 

The extent of the increase ordinarily 

should depend on the extent of the 

injury, the degree to which it may prove 

permanent, and the extent to which the 

injury was intended or knowingly 

risked. When the victim suffers a major, 

permanent disability and when such 

injury was intentionally inflicted, a 

substantial departure may be 

appropriate. If the injury is less serious 

or if the defendant (though criminally 

negligent) did not knowingly create the 

risk of harm, a less substantial departure 

would be indicated. In general, the same 

considerations apply as in § 5K2.1. 

§ 5K2.3. Extreme Psychological Injury 

(Policy Statement) 

If a victim or victims suffered 

psychological injury much more serious 

than that normally resulting from 

commission of the offense, the court 

may increase the sentence above the 

authorized guideline range. The extent 

of the increase ordinarily should 

depend on the severity of the 

psychological injury and the extent to 

which the injury was intended or 

knowingly risked. 

Normally, psychological injury would 

be sufficiently severe to warrant 

application of this adjustment only 

when there is a substantial impairment 

of the intellectual, psychological, 

emotional, or behavioral functioning of 

a victim, when the impairment is likely 

to be of an extended or continuous 

duration, and when the impairment 

manifests itself by physical or 

psychological symptoms or by changes 

in behavior patterns. The court should 

consider the extent to which such harm 

was likely, given the nature of the 

defendant’s conduct. 

§ 5K2.4. Abduction or Unlawful 

Restraint (Policy Statement) 

If a person was abducted, taken 

hostage, or unlawfully restrained to 

facilitate commission of the offense or to 

facilitate the escape from the scene of 

the crime, the court may increase the 

sentence above the authorized guideline 

range. 

§ 5K2.5. Property Damage or Loss 

(Policy Statement) 

If the offense caused property damage 

or loss not taken into account within the 

guidelines, the court may increase the 

sentence above the authorized guideline 

range. The extent of the increase 

ordinarily should depend on the extent 

to which the harm was intended or 

knowingly risked and on the extent to 

which the harm to property is more 

serious than other harm caused or 

risked by the conduct relevant to the 

offense of conviction. 

§ 5K2.6. Weapons and Dangerous 

Instrumentalities (Policy Statement) 

If a weapon or dangerous 

instrumentality was used or possessed 

in the commission of the offense the 

court may increase the sentence above 

the authorized guideline range. The 

extent of the increase ordinarily should 

depend on the dangerousness of the 

weapon, the manner in which it was 

used, and the extent to which its use 

endangered others. The discharge of a 

firearm might warrant a substantial 

sentence increase. 

§ 5K2.7. Disruption of Governmental 

Function (Policy Statement) 

If the defendant’s conduct resulted in 

a significant disruption of a 

governmental function, the court may 

increase the sentence above the 

authorized guideline range to reflect the 

nature and extent of the disruption and 

the importance of the governmental 

function affected. Departure from the 

guidelines ordinarily would not be 

justified when the offense of conviction 

is an offense such as bribery or 

obstruction of justice; in such cases 

interference with a governmental 

function is inherent in the offense, and 

unless the circumstances are unusual 

the guidelines will reflect the 

appropriate punishment for such 

interference. 

§ 5K2.8. Extreme Conduct (Policy 

Statement) 

If the defendant’s conduct was 

unusually heinous, cruel, brutal, or 

degrading to the victim, the court may 

increase the sentence above the 

guideline range to reflect the nature of 

the conduct. Examples of extreme 

conduct include torture of a victim, 

gratuitous infliction of injury, or 

prolonging of pain or humiliation. 

§ 5K2.9. Criminal Purpose (Policy 

Statement) 

If the defendant committed the 

offense in order to facilitate or conceal 

the commission of another offense, the 

court may increase the sentence above 

the guideline range to reflect the actual 

seriousness of the defendant’s conduct. 

§ 5K2.10. Victim’s Conduct (Policy 

Statement) 

If the victim’s wrongful conduct 

contributed significantly to provoking 

the offense behavior, the court may 

reduce the sentence below the guideline 

range to reflect the nature and 

circumstances of the offense. In 

deciding whether a sentence reduction 

is warranted, and the extent of such 

reduction, the court should consider the 

following: 

(1) The size and strength of the 

victim, or other relevant physical 

characteristics, in comparison with 

those of the defendant. 

(2) The persistence of the victim’s 

conduct and any efforts by the 

defendant to prevent confrontation. 

(3) The danger reasonably perceived 

by the defendant, including the victim’s 

reputation for violence. 

(4) The danger actually presented to 

the defendant by the victim. 

(5) Any other relevant conduct by the 

victim that substantially contributed to 

the danger presented. 

(6) The proportionality and 

reasonableness of the defendant’s 

response to the victim’s provocation. 

Victim misconduct ordinarily would 

not be sufficient to warrant application 

of this provision in the context of 

offenses under Chapter Two, Part A, 

Subpart 3 (Criminal Sexual Abuse). In 

addition, this provision usually would 

not be relevant in the context of nonviolent offenses. There may, however, 

be unusual circumstances in which 

substantial victim misconduct would 

warrant a reduced penalty in the case of 

a non-violent offense. For example, an 

extended course of provocation and 

harassment might lead a defendant to 

steal or destroy property in retaliation. 

§ 5K2.11. Lesser Harms (Policy 

Statement) 

Sometimes, a defendant may commit 

a crime in order to avoid a perceived 

greater harm. In such instances, a 

reduced sentence may be appropriate, 

provided that the circumstances 

significantly diminish society’s interest 

in punishing the conduct, for example, 

in the case of a mercy killing. Where the 


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interest in punishment or deterrence is 

not reduced, a reduction in sentence is 

not warranted. For example, providing 

defense secrets to a hostile power 

should receive no lesser punishment 

simply because the defendant believed 

that the government’s policies were 

misdirected. 

In other instances, conduct may not 

cause or threaten the harm or evil 

sought to be prevented by the law 

proscribing the offense at issue. For 

example, where a war veteran possessed 

a machine gun or grenade as a trophy, 

or a school teacher possessed controlled 

substances for display in a drug 

education program, a reduced sentence 

might be warranted. 

§ 5K2.12. Coercion and Duress (Policy 

Statement) 

If the defendant committed the 

offense because of serious coercion, 

blackmail or duress, under 

circumstances not amounting to a 

complete defense, the court may depart 

downward. The extent of the decrease 

ordinarily should depend on the 

reasonableness of the defendant’s 

actions, on the proportionality of the 

defendant’s actions to the seriousness of 

coercion, blackmail, or duress involved, 

and on the extent to which the conduct 

would have been less harmful under the 

circumstances as the defendant believed 

them to be. Ordinarily coercion will be 

sufficiently serious to warrant departure 

only when it involves a threat of 

physical injury, substantial damage to 

property or similar injury resulting from 

the unlawful action of a third party or 

from a natural emergency. 

Notwithstanding this policy statement, 

personal financial difficulties and 

economic pressures upon a trade or 

business do not warrant a downward 

departure. 

§ 5K2.13. Diminished Capacity (Policy 

Statement) 

A downward departure may be 

warranted if (1) the defendant 

committed the offense while suffering 

from a significantly reduced mental 

capacity; and (2) the significantly 

reduced mental capacity contributed 

substantially to the commission of the 

offense. Similarly, if a departure is 

warranted under this policy statement, 

the extent of the departure should 

reflect the extent to which the reduced 

mental capacity contributed to the 

commission of the offense. 

However, the court may not depart 

below the applicable guideline range if 

(1) the significantly reduced mental 

capacity was caused by the voluntary 

use of drugs or other intoxicants; (2) the 

facts and circumstances of the 

defendant’s offense indicate a need to 

protect the public because the offense 

involved actual violence or a serious 

threat of violence; (3) the defendant’s 

criminal history indicates a need to 

incarcerate the defendant to protect the 

public; or (4) the defendant has been 

convicted of an offense under chapter 

71, 109A, 110, or 117, of title 18, United 

States Code. 

Commentary 

Application Note: 

1. For purposes of this policy 

statement— 

‘Significantly reduced mental 

capacity’ means the defendant, although 

convicted, has a significantly impaired 

ability to (A) understand the 

wrongfulness of the behavior 

comprising the offense or to exercise the 

power of reason; or (B) control behavior 

that the defendant knows is wrongful. 

Background: Section 401(b)(5) of 

Public Law 108–21 directly amended 

this policy statement to add subdivision 

(4), effective April 30, 2003. 

§ 5K2.14. Public Welfare (Policy 

Statement) 

If national security, public health, or 

safety was significantly endangered, the 

court may depart upward to reflect the 

nature and circumstances of the offense. 

§ 5K2.16. Voluntary Disclosure of 

Offense (Policy Statement) 

If the defendant voluntarily discloses 

to authorities the existence of, and 

accepts responsibility for, the offense 

prior to the discovery of such offense, 

and if such offense was unlikely to have 

been discovered otherwise, a downward 

departure may be warranted. For 

example, a downward departure under 

this section might be considered where 

a defendant, motivated by remorse, 

discloses an offense that otherwise 

would have remained undiscovered. 

This provision does not apply where the 

motivating factor is the defendant’s 

knowledge that discovery of the offense 

is likely or imminent, or where the 

defendant’s disclosure occurs in 

connection with the investigation or 

prosecution of the defendant for related 

conduct. 

§ 5K2.17. Semiautomatic Firearms 

Capable of Accepting Large Capacity 

Magazine (Policy Statement) 

If the defendant possessed a 

semiautomatic firearm capable of 

accepting a large capacity magazine in 

connection with a crime of violence or 

controlled substance offense, an upward 

departure may be warranted. A 

‘semiautomatic firearm capable of 

accepting a large capacity magazine’ 

means a semiautomatic firearm that has 

the ability to fire many rounds without 

reloading because at the time of the 

offense (1) the firearm had attached to 

it a magazine or similar device that 

could accept more than 15 rounds of 

ammunition; or (2) a magazine or 

similar device that could accept more 

than 15 rounds of ammunition was in 

close proximity to the firearm. The 

extent of any increase should depend 

upon the degree to which the nature of 

the weapon increased the likelihood of 

death or injury in the circumstances of 

the particular case. 

Commentary 

Application Note: 

1. ‘Crime of violence’ and ‘controlled 

substance offense’ are defined in § 4B1.2 

(Definitions of Terms Used in Section 

4B1.1). 

§ 5K2.18. Violent Street Gangs (Policy 

Statement) 

If the defendant is subject to an 

enhanced sentence under 18 U.S.C. 521 

(pertaining to criminal street gangs), an 

upward departure may be warranted. 

The purpose of this departure provision 

is to enhance the sentences of 

defendants who participate in groups, 

clubs, organizations, or associations that 

use violence to further their ends. It is 

to be noted that there may be cases in 

which 18 U.S.C. 521 applies, but no 

violence is established. In such cases, it 

is expected that the guidelines will 

account adequately for the conduct and, 

consequently, this departure provision 

would not apply. 

§ 5K2.20. Aberrant Behavior (Policy 

Statement) 

(a) In General.—Except where a 

defendant is convicted of an offense 

involving a minor victim under section 

1201, an offense under section 1591, or 

an offense under chapter 71, 109A, 110, 

or 117, of title 18, United States Code, 

a downward departure may be 

warranted in an exceptional case if (1) 

the defendant’s criminal conduct meets 

the requirements of subsection (b); and 

(2) the departure is not prohibited under 

subsection (c). 

(b) Requirements.—The court may 

depart downward under this policy 

statement only if the defendant 

committed a single criminal occurrence 

or single criminal transaction that (1) 

was committed without significant 

planning; (2) was of limited duration; 

and (3) represents a marked deviation 

by the defendant from an otherwise lawabiding life. 

(c) Prohibitions Based on the Presence 

of Certain Circumstances.—The court 

may not depart downward pursuant to 


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this policy statement if any of the 

following circumstances are present: 

(1) The offense involved serious 

bodily injury or death. 

(2) The defendant discharged a 

firearm or otherwise used a firearm or 

a dangerous weapon. 

(3) The instant offense of conviction 

is a serious drug trafficking offense. 

(4) The defendant has either of the 

following: (A) more than one criminal 

history point, as determined under 

Chapter Four (Criminal History and 

Criminal Livelihood) before application 

of subsection (b) of § 4A1.3 (Departures 

Based on Inadequacy of Criminal 

History Category); or (B) a prior federal 

or state felony conviction, or any other 

significant prior criminal behavior, 

regardless of whether the conviction or 

significant prior criminal behavior is 

countable under Chapter Four. 

Commentary 

Application Notes: 

1. Definitions.—For purposes of this 

policy statement: 

‘Dangerous weapon,’ ‘firearm,’ 

‘otherwise used,’ and ‘serious bodily 

injury’ have the meaning given those 

terms in the Commentary to § 1B1.1 

(Application Instructions). 

‘Serious drug trafficking offense’ 

means any controlled substance offense 

under title 21, United States Code, other 

than simple possession under 21 U.S.C. 

844, that provides for a mandatory 

minimum term of imprisonment of five 

years or greater, regardless of whether 

the defendant meets the criteria of 

§ 5C1.2 (Limitation on Applicability of 

Statutory Mandatory Minimum 

Sentences in Certain Cases). 

2. Repetitious or Significant, Planned 

Behavior.—Repetitious or significant, 

planned behavior does not meet the 

requirements of subsection (b). For 

example, a fraud scheme generally 

would not meet such requirements 

because such a scheme usually involves 

repetitive acts, rather than a single 

occurrence or single criminal 

transaction, and significant planning. 

3. Other Circumstances to Consider.— 

In determining whether the court 

should depart under this policy 

statement, the court may consider the 

defendant’s (A) mental and emotional 

conditions; (B) employment record; (C) 

record of prior good works; (D) 

motivation for committing the offense; 

and (E) efforts to mitigate the effects of 

the offense. 

Background: Section 401(b)(3) of 

Public Law 108–21 directly amended 

subsection (a) of this policy statement, 

effective April 30, 2003. 

§ 5K2.21. Dismissed and Uncharged 

Conduct (Policy Statement) 

The court may depart upward to 

reflect the actual seriousness of the 

offense based on conduct (1) underlying 

a charge dismissed as part of a plea 

agreement in the case, or underlying a 

potential charge not pursued in the case 

as part of a plea agreement or for any 

other reason; and (2) that did not enter 

into the determination of the applicable 

guideline range. 

§ 5K2.22. Specific Offender 

Characteristics as Grounds for 

Downward Departure in Child Crimes 

and Sexual Offenses (Policy Statement) 

In sentencing a defendant convicted 

of an offense involving a minor victim 

under section 1201, an offense under 

section 1591, or an offense under 

chapter 71, 109A, 110, or 117, of title 

18, United States Code: 

(1) Age may be a reason to depart 

downward only if and to the extent 

permitted by § 5H1.1. 

(2) An extraordinary physical 

impairment may be a reason to depart 

downward only if and to the extent 

permitted by § 5H1.4. 

(3) Drug, alcohol, or gambling 

dependence or abuse is not a reason to 

depart downward. 

Commentary 

Background: Section 401(b)(2) of 

Public Law 108–21 directly amended 

Chapter Five, Part K, to add this policy 

statement, effective April 30, 2003. 

§ 5K2.23. Discharged Terms of 

Imprisonment (Policy Statement) 

A downward departure may be 

appropriate if the defendant (1) has 

completed serving a term of 

imprisonment; and (2) subsection (b) of 

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

Defendant Subject to Undischarged 

Term of Imprisonment or Anticipated 

Term of Imprisonment) would have 

provided an adjustment had that 

completed term of imprisonment been 

undischarged at the time of sentencing 

for the instant offense. Any such 

departure should be fashioned to 

achieve a reasonable punishment for the 

instant offense. 

§ 5K2.24. Commission of Offense 

While Wearing or Displaying 

Unauthorized or Counterfeit Insignia or 

Uniform (Policy Statement) 

If, during the commission of the 

offense, the defendant wore or 

displayed an official, or counterfeit 

official, insignia or uniform received in 

violation of 18 U.S.C. 716, an upward 

departure may be warranted. 

Commentary 

Application Note: 

1. Definition.—For purposes of this 

policy statement, ‘official insignia or 

uniform’ has the meaning given that 

term in 18 U.S.C. § 716(c)(3). 

3. Early Disposition Programs 

§ 5K3.1. Early Disposition Programs 

(Policy Statement) 

Upon motion of the Government, the 

court may depart downward not more 

than 4 levels pursuant to an early 

disposition program authorized by the 

Attorney General of the United States 

and the United States Attorney for the 

district in which the court resides. 

Commentary 

Background: This policy statement 

implements the directive to the 

Commission in section 401(m)(2)(B) of 

the Prosecutorial Remedies and Other 

Tools to end the Exploitation of 

Children Today Act of 2003 (the 

‘PROTECT Act’, Public Law 108–21).’’. 

Chapter Eight is amended— 

by redesignating Chapter Eight as 

Chapter Nine; 

in the heading by striking ‘‘Chapter 

Eight’’ and inserting ‘‘Chapter Nine’’; 

in Part A by redesignating §§ 8A1.1 

and 8A1.2 as §§ 9A1.1 and 9A1.2, 

respectively; 

in Part B, Subpart 1 by redesignating 

§§ 8B1.1, 8B1.2, 8B1.3, and 8B1.4 as 

§§ 9B1.1, 9B1.2, 9B1.3, and 9B1.4, 

respectively; 

in Part B, Subpart 2 by redesignating 

§ 8B2.1 as § 9B2.1; 

in Part C, Subpart 1 by redesignating 

§ 8C1.1 as § 9C1.1; 

in Part C, Subpart 2 by redesignating 

§§ 8C2.1, 8C2.2, 8C2.3, 8C2.4, 8C2.5, 

8C2.6, 8C2.7, 8C2.8, 8C2.9, and 8C2.10 

as §§ 9C2.1, 9C2.2, 9C2.3, 9C2.4, 9C2.5, 

9C2.6, 9C2.7, 9C2.8, 9C2.9, and 9C2.10, 

respectively; 

in Part C, Subpart 3 by redesignating 

§§ 8C3.1, 8C3.2, 8C3.3, and 8C3.4 as 

§§ 9C3.1, 9C3.2, 9C3.3, and 9C3.4, 

respectively; 

in Part C, Subpart 4— 

by redesignating § 8C4.1 as § 9C4.1; 

and striking §§ 8C4.2 through 8C4.11 

as follows: 

‘‘§ 8C4.2. Risk of Death or Bodily 

Injury (Policy Statement) 

If the offense resulted in death or 

bodily injury, or involved a foreseeable 

risk of death or bodily injury, an 

upward departure may be warranted. 

The extent of any such departure should 

depend, among other factors, on the 

nature of the harm and the extent to 

which the harm was intended or 

knowingly risked, and the extent to 


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which such harm or risk is taken into 

account within the applicable guideline 

fine range. 

§ 8C4.3. Threat to National Security 

(Policy Statement) 

If the offense constituted a threat to 

national security, an upward departure 

may be warranted. 

§ 8C4.4. Threat to the Environment 

(Policy Statement) 

If the offense presented a threat to the 

environment, an upward departure may 

be warranted. 

§ 8C4.5. Threat to a Market (Policy 

Statement) 

If the offense presented a risk to the 

integrity or continued existence of a 

market, an upward departure may be 

warranted. This section is applicable to 

both private markets (e.g., a financial 

market, a commodities market, or a 

market for consumer goods) and public 

markets (e.g., government contracting). 

§ 8C4.6. Official Corruption (Policy 

Statement) 

If the organization, in connection with 

the offense, bribed or unlawfully gave a 

gratuity to a public official, or attempted 

or conspired to bribe or unlawfully give 

a gratuity to a public official, an upward 

departure may be warranted. 

§ 8C4.7. Public Entity (Policy 

Statement) 

If the organization is a public entity, 

a downward departure may be 

warranted. 

§ 8C4.8. Members or Beneficiaries of 

the Organization as Victims (Policy 

Statement) 

If the members or beneficiaries, other 

than shareholders, of the organization 

are direct victims of the offense, a 

downward departure may be warranted. 

If the members or beneficiaries of an 

organization are direct victims of the 

offense, imposing a fine upon the 

organization may increase the burden 

upon the victims of the offense without 

achieving a deterrent effect. In such 

cases, a fine may not be appropriate. For 

example, departure may be appropriate 

if a labor union is convicted of 

embezzlement of pension funds. 

§ 8C4.9. Remedial Costs that Greatly 

Exceed Gain (Policy Statement) 

If the organization has paid or has 

agreed to pay remedial costs arising 

from the offense that greatly exceed the 

gain that the organization received from 

the offense, a downward departure may 

be warranted. In such a case, a 

substantial fine may not be necessary in 

order to achieve adequate punishment 

and deterrence. In deciding whether 

departure is appropriate, the court 

should consider the level and extent of 

substantial authority personnel 

involvement in the offense and the 

degree to which the loss exceeds the 

gain. If an individual within high-level 

personnel was involved in the offense, 

a departure would not be appropriate 

under this section. The lower the level 

and the more limited the extent of 

substantial authority personnel 

involvement in the offense, and the 

greater the degree to which remedial 

costs exceeded or will exceed gain, the 

less will be the need for a substantial 

fine to achieve adequate punishment 

and deterrence. 

§ 8C4.10. Mandatory Programs to 

Prevent and Detect Violations of Law 

(Policy Statement) 

If the organization’s culpability score 

is reduced under § 8C2.5(f) (Effective 

Compliance and Ethics Program) and 

the organization had implemented its 

program in response to a court order or 

administrative order specifically 

directed at the organization, an upward 

departure may be warranted to offset, in 

part or in whole, such reduction. 

Similarly, if, at the time of the instant 

offense, the organization was required 

by law to have an effective compliance 

and ethics program, but the organization 

did not have such a program, an upward 

departure may be warranted. 

§ 8C4.11. Exceptional Organizational 

Culpability (Policy Statement) 

If the organization’s culpability score 

is greater than 10, an upward departure 

may be appropriate. 

If no individual within substantial 

authority personnel participated in, 

condoned, or was willfully ignorant of 

the offense; the organization at the time 

of the offense had an effective program 

to prevent and detect violations of law; 

and the base fine is determined under 

§ 8C2.4(a)(1), § 8C2.4(a)(3), or a special 

instruction for fines in Chapter Two 

(Offense Conduct), a downward 

departure may be warranted. In a case 

meeting these criteria, the court may 

find that the organization had 

exceptionally low culpability and 

therefore a fine based on loss, offense 

level, or a special Chapter Two 

instruction results in a guideline fine 

range higher than necessary to achieve 

the purposes of sentencing. 

Nevertheless, such fine should not be 

lower than if determined under 

§ 8C2.4(a)(2).’’; 

in Part D by redesignating §§ 8D1.1, 

8D1.2, 8D1.3, and 8D1.4 as §§ 9D1.1, 

9D1.2, 9D1.3, and 9D1.4, respectively; 

in Part E by redesignating §§ 8E1.1, 

8E1.2, and 8E1.3 as §§ 9E1.1, 9E1.2, and 

9E1.3, respectively; 

and in Part F by redesignating § 8F1.1 

as § 9F1.1. 

Chapter Seven is amended— 

by redesignating Chapter Seven as 

Chapter Eight; 

in the heading by striking ‘‘Chapter 

Seven’’ and inserting ‘‘Chapter Eight’’; 

and in Part B by redesignating 

§§ 7B1.1, 7B1.2, 7B1.3, 7B1.4, and 7B1.5 

as §§ 8B1.1, 8B1.2, 8B1.3, 8B1.4, and 

8B1.5. 

Chapter Six is amended— 

by redesignating Chapter Six as 

Chapter Seven; 

in the heading by striking ‘‘Chapter 

Six’’ and inserting ‘‘Chapter Seven’’; 

in Part A— 

by redesignating §§ 6A1.1, 6A1.2, 

6A1.3, and 6A1.5 as §§ 7A1.1, 7A1.2, 

7A1.3, and 7A1.4, respectively; 

and by striking § 6A1.4 as follows: 

‘‘§ 6A1.4. Notice of Possible Departure 

(Policy Statement) 

Before the court may depart from the 

applicable sentencing guideline range 

on a ground not identified for departure 

either in the presentence report or in a 

party’s prehearing submission, the court 

must give the parties reasonable notice 

that it is contemplating such a 

departure. The notice must specify any 

ground on which the court is 

contemplating a departure. Rule 32(h), 

Fed. R. Crim. P. 

Commentary 

Background: The Federal Rules of 

Criminal Procedure were amended, 

effective December 1, 2002, to 

incorporate into Rule 32(h) the holding 

in Burns v. United States, 501 U.S. 129, 

138–39 (1991). This policy statement 

parallels Rule 32(h), Fed. R. Crim. P.’’; 

and in Part B by redesignating 

§§ 6B1.1, 6B1.2, 6B1.3, and 6B1.4 as 

§§ 7B1.1, 7B1.2, 7B1.3, and 7B1.4, 

respectively. 

The Guidelines Manual is amended 

by inserting before Chapter Seven 

(Sentencing Procedures, Plea 

Agreements, and Crime Victims’ Rights) 

(as so redesignated) the following new 

Chapter Six: 

‘‘Chapter Six 

Determining the Sentence 

Introductory Commentary 

The Sentencing Reform Act of 1984 

(Title II of the Comprehensive Crime 

Control Act of 1984) (the ‘Act’) provides 

that courts must consider a variety of 

factors when imposing a sentence 

‘sufficient but not greater than 

necessary’ to comply with the purposes 


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of sentencing as set forth in the Act. 18 

U.S.C. 3553(a). The Act provides for the 

development of guidelines that will 

further the basic purposes of criminal 

punishment. 28 U.S.C. 994(f). 

Originally, those guidelines were 

mandatory under the Act, with limited 

exceptions. See 18 U.S.C. 3553(b). Later, 

in United States v. Booker, 543 U.S. 220 

(2005), the Supreme Court held that the 

provision in 18 U.S.C. 3553(b) making 

the guidelines mandatory was 

unconstitutional. Following Booker, the 

guideline ranges established by 

application of the Guidelines Manual 

remain ‘the starting point and the initial 

benchmark’ of sentencing, though the 

guidelines are advisory in nature. See 

Gall v. United States, 552 U.S. 38, 49 

(2007); Peugh v. United States, 569 U.S. 

530 (2013) (noting that ‘the post-Booker 

federal sentencing system adopted 

procedural measures that make the 

guidelines the ‘lodestone’ of 

sentencing’). Consistent with 18 U.S.C. 

3553(a), which remains binding on 

courts following Booker, courts must 

also consider a variety of additional 

factors when determining the sentence 

to be imposed. 

As background, Congress provided 

specific directives to the Commission 

when setting a guideline range for ‘each 

category of offense involving each 

category of defendant.’ 28 U.S.C. 

994(b)(1). 

First, to effectuate Congress’s intent 

that sentences not ‘afford preferential 

treatment to defendants of a particular 

race or religion or level of affluence, or 

to relegate to prisons defendants who 

are poor, uneducated, and in need of 

education and vocational training,’ Rep. 

225, 98th Cong., 1st Sess. 171 (1983), 

the Act directs the Commission to 

ensure that the guidelines and policy 

statements ‘are entirely neutral’ as to 

five characteristics—race, sex, national 

origin, creed, and socioeconomic status. 

See 28 U.S.C. 994(d). 

Second, the Act directs the 

Commission to consider (a) whether 

seven matters, ‘among others,’ have any 

relevance to the nature, extent, place of 

service, or other aspects of an 

appropriate sentence for purposes of 

establishing categories of offenses, and 

(b) whether eleven matters, ‘among 

others’, have any relevance to the 

nature, extent, place of service, or other 

aspects of an appropriate sentence for 

purposes of establishing categories of 

defendants, and to take them into 

account in the guidelines and policy 

statements only to the extent that they 

do have relevance. See 28 U.S.C. 994(d). 

Third, to effectuate Congress’s intent 

to ‘guard against the inappropriate use 

of incarceration for those defendants 

who lack education, employment, and 

stabilizing ties.’ S. Rep. 225, 98th Cong., 

1st Sess. 174 (1983), the Act directs the 

Commission to ensure that the 

guidelines and policy statements, in 

recommending a term of imprisonment 

or length of a term of imprisonment, 

reflect the ‘general inappropriateness’ of 

considering five of those 

characteristics—education; vocational 

skills; employment record; family ties 

and responsibilities; and community 

ties. See 28 U.S.C. 994(e). 

The statutory requirements placed by 

Congress upon courts in 18 U.S.C. 

3553(a), however, do not include the 

same limitations placed upon the 

Commission. Accordingly, the purpose 

of this chapter is to assist courts in 

complying with their obligation under 

18 U.S.C. 3553(a) to consider a variety 

of factors, including the ‘nature and 

circumstances of the offense and the 

history and characteristics of the 

defendant,’ in addition to the guideline 

range when determining the sentence to 

be imposed. This chapter provides 

examples of factors that are generally 

not considered in the calculation of the 

guideline range in Chapters Two 

through Five, but which courts regularly 

consider pursuant to section 3553(a). 

The Commission recognizes that the 

nature, extent, and significance of 

various considerations may be difficult 

or impossible to quantify for purposes of 

establishing the guideline ranges. As 

such, the factors identified in this 

chapter are neither weighted in any 

manner nor intended to be 

comprehensive so as to otherwise 

infringe upon the court’s unique 

position to determine the most 

appropriate sentence. 

Part A—Consideration of Factors in 18 

U.S.C. 3553(a) 

§ 6A1.1. Factors To Be Considered in 

Imposing a Sentence (Policy Statement) 

(a) After determining the kinds of 

sentence and guidelines range pursuant 

to subsection (a) of § 1B1.1 (Application 

Instructions) and 18 U.S.C. 3553(a)(4) 

and (5), the court shall consider the 

other applicable factors in 18 U.S.C. 

3553(a) to determine a sentence that is 

sufficient but not greater than necessary. 

Specifically, as set forth in 18 U.S.C. 

3553(a), in determining the particular 

sentence to be imposed, the court shall 

also consider— 

(1) the nature and circumstances of 

the offense and the history and 

characteristics of the defendant; 

(2) the need for the sentence imposed 

to meet the purposes of sentencing 

listed in 18 U.S.C. 3553(a)(2); 

(3) the kinds of sentences available; 

(4) the need to avoid unwarranted 

sentence disparities among defendants 

with similar records who have been 

found guilty of similar conduct; and 

(5) the need to provide restitution to 

any victims of the offense. 

Commentary 

Section 3553(a) of title 18, United 

States Code, requires courts to impose a 

sentence ‘sufficient, but not greater than 

necessary,’ to comply with the purposes 

of sentencing set forth in 18 U.S.C. 

3553(a)(2). See 18 U.S.C. 3553(a). After 

determining the kinds of sentence and 

guidelines range, the court must also 

fully consider the factors in 18 U.S.C. 

3553(a), including, among other factors, 

‘the nature and circumstances of the 

offense and the history and 

characteristics of the defendant,’ to 

determine an appropriate sentence. To 

the extent that any of the above-noted 

statutory provisions conflict with the 

provisions of this policy statement, the 

applicable statutory provision shall 

control. 

§ 6A1.2. Factors Relating to Individual 

Circumstances (Policy Statement) 

(a) In considering the history and 

characteristics of the defendant 

pursuant to 18 U.S.C. 3553(a)(1), the 

following factors may be relevant: 

(1) Age. 

(2) Education. 

(3) Vocational Skills. 

(4) Mental and Emotional Conditions. 

(5) Diminished Mental Capacity. 

(6) Physical Condition. 

(7) Drug or Alcohol Dependence. 

(8) Gambling Addiction. 

(9) Previous Employment Record. 

(10) Family Ties and Responsibilities. 

(11) Lack of Guidance as a Youth and 

Similar Circumstances. 

(12) Community Ties. 

(13) Role in the Offense. 

(14) Personal Financial Difficulties 

and Economic Pressures. 

(15) Degree of Dependence Upon 

Criminal Activity for a Livelihood. 

(16) Military Service. 

(17) Civic, Charitable, or Public 

Service. 

(18) Employment-Related 

Contributions. 

(19) Record of Prior Good Works. 

(20) Aberrant Behavior. 

(21) Other Individual Circumstances 

Relating to the Culpability of or the 

Need to Incapacitate the Defendant. 

Commentary 

This policy statement recognizes that 

the nature, extent, and significance of 

individual circumstances can involve a 

range of considerations that are difficult 

or impossible to quantify for purposes of 


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establishing the guideline range. This 

policy statement provides examples of 

factors relating to the history and 

characteristics of the defendant that are 

generally not considered in the 

calculation of the guideline range in 

Chapters Two through Five, but which 

courts regularly consider pursuant to 18 

U.S.C. 3553(a). The factors identified in 

this policy statement are not weighted 

in any manner or intended to be 

comprehensive or to otherwise infringe 

upon the court’s unique position to 

determine the most appropriate 

sentence. 

§ 6A1.3. Factors Relating to the Nature 

and Circumstances of the Offense 

(Policy Statement) 

(a) In considering the nature and 

circumstances of the offense pursuant to 

18 U.S.C. 3553(a)(1), the following 

factors, if not accounted for in the 

applicable Chapter Two guideline, may 

be relevant: 

(1) Other Offense Specific Conduct 

Over- or Under-Representing Serious of 

Offense.—Additional factors the court 

determines support a finding that the 

offense level determined under the 

applicable guideline over- or underrepresents the seriousness of the 

offense. Such factors may be identified 

in specific Chapter Two guidelines as 

‘Additional Considerations.’ 

(2) Death.—In cases in which death 

resulted, the court may consider, for 

example, whether multiple deaths 

resulted, the means by which life was 

taken, the defendant’s state of mind, and 

the degree of planning or preparation. 

(3) Extreme Physical Injury.—In cases 

in which extreme physical injury 

resulted, the court may consider, for 

example, whether multiple victims 

suffered such injury, the nature of the 

injury, and the extent to which the 

defendant intended the injury or 

knowingly created risk. 

(4) Extreme Psychological Injury.— 

The defendant caused extended or 

continuous substantial impairment of 

the intellectual, psychological, 

emotional, or behavioral functioning of 

the victim that is more serious than that 

normally resulting from the commission 

of the offense. 

(5) Abduction or Unlawful 

Restraint.—The defendant abducted, 

took hostage, or unlawfully restrained a 

person to facilitate the commission of 

the offense or escape. 

(6) Extreme Conduct.—The defendant 

engaged in unusually heinous, cruel, 

brutal, or degrading conduct such as the 

torture of a victim, gratuitous infliction 

of injury, or prolonging of pain or 

humiliation. 

(7) Weapons and Dangerous 

Instrumentalities.—In cases in which 

the defendant possessed a weapon or 

dangerous instrumentality, the court 

may consider, for example, the 

dangerousness of the weapon, the 

manner in which it was used, and the 

extent to which its use endangered 

others. 

(8) Semiautomatic Firearms Capable 

of Accepting Large Capacity 

Magazine.—The defendant possessed a 

semiautomatic firearm capable of 

accepting a large capacity magazine in 

connection with a crime of violence or 

controlled substance offense. 

(9) Property Damage or Loss.—In 

cases in which the offense caused 

property damage or loss not taken into 

account within the guidelines, the court 

may consider, for example, the extent to 

which the defendant knowingly 

intended or risked harm, and the extent 

to which the harm to property is more 

serious than other harm caused or 

risked by the defendant’s conduct. 

(10) Disruption of a Governmental 

Function.—The defendant’s conduct 

resulted in a significant disruption of a 

governmental function. 

(11) Public Welfare.—The defendant’s 

conduct significantly endangered 

national security, public health, or 

safety. 

(12) Commission of Offense While 

Wearing or Displaying Unauthorized or 

Counterfeit Insignia or Uniform.—The 

defendant wore or displayed an official, 

or counterfeit official, insignia or 

uniform during the commission of the 

offense. 

(13) Criminal Purpose.—The 

defendant committed the offense in 

order to facilitate or conceal the 

commission of another offense. 

(14) Victim’s Conduct.—The victim’s 

wrongful conduct contributed 

significantly to provoking the offense 

behavior. 

(15) Lesser Harms.—The defendant 

committed the offense in order to avoid 

a perceived greater harm. 

(16) Coercion or Duress.—The 

defendant committed the offense under 

coercion, blackmail, duress, or 

circumstances not amounting to a 

complete defense. 

(17) Dismissed and Uncharged 

Conduct.—The offense level determined 

under the applicable guideline underrepresents the seriousness of the offense 

because conduct underlying a charge 

dismissed as part of a plea agreement in 

the case or conduct underlying a 

potential charge not pursued in the case 

as part of a plea agreement or for any 

other reason did not enter into the 

determination of the applicable 

guideline range. 

(18) Voluntary Disclosure of 

Offense.—The defendant voluntarily 

disclosed to authorities the existence of, 

and accepted responsibility for, an 

offense that was unlikely to have been 

discovered otherwise. 

(19) Discharged Terms of 

Imprisonment.—In the case of a 

discharged term of imprisonment, (A) 

the defendant has completed serving a 

term of imprisonment; and (B) 

subsection (b) of § 5G1.3 (Imposition of 

a Sentence on a Defendant Subject to 

Undischarged Term of Imprisonment or 

Anticipated Term of Imprisonment) 

would have provided an adjustment had 

that completed term of imprisonment 

been undischarged at the time of 

sentencing for the instant offense. 

(20) Violent Street Gangs.—The 

defendant is subject to an enhanced 

sentence under 18 U.S.C. 521 

(pertaining to criminal street gangs) and 

the offense involved violence. 

Commentary 

This policy statement recognizes that 

the nature, extent, and significance of 

individual circumstances can involve a 

range of considerations that are difficult 

or impossible to quantify for purposes of 

establishing the guideline range. This 

policy statement provides examples of 

factors relating to the nature and 

circumstances of the offense that are 

generally not considered in the 

calculation of the guideline range in 

Chapters Two through Five, but which 

courts regularly consider pursuant to 18 

U.S.C. 3553(a). The factors identified in 

this policy statement are not weighted 

in any manner or intended to be 

comprehensive or to otherwise infringe 

upon the court’s unique position to 

determine the most appropriate 

sentence.’’. 

Chapter Seven, Part B (as so 

redesignated) is amended in the 

Introductory Commentary by striking 

‘‘The policy statements also ensure that 

the basis for any judicial decision to 

depart from the guidelines will be 

explained on the record.’’. 

The Commentary to § 7B1.1 (as so 

redesignated) is amended in the second 

paragraph by striking ‘‘Section 6B1.1(c)’’ 

and inserting ‘‘Section 7B1.1(c)’’. 

The Commentary to § 7B1.2 (as so 

redesignated) is amended— 

in the paragraph that begins 

‘‘Similarly, the court’’ by striking ‘‘As 

set forth in subsection (d) of § 5K2.0 

(Grounds for Departure), however, the 

court may not depart below the 

applicable guideline range merely 

because of the defendant’s decision to 

plead guilty to the offense or to enter a 

plea agreement with respect to the 

offense.’’; 


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and in the paragraph that begins ‘‘The 

second paragraph of subsection (a)’’ by 

striking ‘‘Section 5K2.21 (Dismissed and 

Uncharged Conduct) addresses the use, 

as a basis for upward departure, of 

conduct underlying a charge dismissed 

as part of a plea agreement in the case, 

or underlying a potential charge not 

pursued in the case as part of a plea 

agreement.’’. 

The Commentary to § 7B1.4 (as so 

redesignated) is amended— 

in the paragraph that begins ‘‘Because 

of the importance’’ by striking ‘‘§ 6A1.2’’ 

and inserting ‘‘§ 7A1.2’’; 

and in the final paragraph by striking 

‘‘Section 6B1.4(d)’’ and inserting 

‘‘Section 7B1.4(d)’’. 

Chapter Eight, Part A (as so 

redesignated) is amended in the heading 

by striking ‘‘CHAPTER SEVEN’’ and 

inserting ‘‘CHAPTER EIGHT’’. 

Section 8B1.3(b) (as so redesignated) 

is amended by striking ‘‘§ 7B1.4’’ and 

inserting ‘‘§ 8B1.4’’. 

Section 8B1.3(c)(1) (as so 

redesignated) is amended by striking 

‘‘§ 7B1.4’’ and inserting ‘‘§ 8B1.4’’. 

Section 8B1.3(c)(2) (as so 

redesignated) is amended by striking 

‘‘§ 7B1.4’’ and inserting ‘‘§ 8B1.4’’. 

Section 8B1.3(d) (as so redesignated) 

is amended by striking ‘‘§ 7B1.4’’ and 

inserting ‘‘§ 8B1.4’’. 

The Commentary to § 8B1.4 (as so 

redesignated) captioned ‘‘Application 

Notes’’ is amended— 

by striking Notes 2, 3, and 4 as 

follows: 

‘‘2. Departure from the applicable 

range of imprisonment in the 

Revocation Table may be warranted 

when the court departed from the 

applicable range for reasons set forth in 

§ 4A1.3 (Departures Based on 

Inadequacy of Criminal History 

Category) in originally imposing the 

sentence that resulted in supervision. 

Additionally, an upward departure may 

be warranted when a defendant, 

subsequent to the federal sentence 

resulting in supervision, has been 

sentenced for an offense that is not the 

basis of the violation proceeding. 

3. In the case of a Grade C violation 

that is associated with a high risk of 

new felonious conduct (e.g., a 

defendant, under supervision for 

conviction of criminal sexual abuse, 

violates the condition that the defendant 

not associate with children by loitering 

near a schoolyard), an upward departure 

may be warranted. 

4. Where the original sentence was 

the result of a downward departure (e.g., 

as a reward for substantial assistance), 

or a charge reduction that resulted in a 

sentence below the guideline range 

applicable to the defendant’s underlying 

conduct, an upward departure may be 

warranted.’’; 

and by redesignating Notes 5 and 6 as 

Notes 2 and 3, respectively. 

The Commentary to § 8B1.4 (as so 

redesignated) is amended by inserting at 

the end the following new Commentary: 

‘‘Additional Consideration: 

1. Aggravating Factors.—In 

determining the appropriate term of 

imprisonment upon revocation pursuant 

to 18 U.S.C. 3553(a), the following 

factors may be relevant: 

(A) The court previously departed or 

varied on the basis that the defendant’s 

criminal history category at the original 

sentencing substantially over- or underrepresented the seriousness of the 

defendant’s criminal history. 

(B) The defendant, subsequent to the 

federal sentence resulting in 

supervision, has been sentenced for an 

offense that is not the basis of the 

violation proceeding. 

(C) The revocation is the result of a 

Grade C violation that is associated with 

a high risk of new felonious conduct 

(e.g., a defendant, under supervision for 

conviction of criminal sexual abuse, 

violates the condition that the defendant 

not associate with children by loitering 

near a schoolyard). 

(D) The defendant was originally 

sentenced below the applicable 

guideline range as the result of a 

departure or variance (e.g., as a reward 

for substantial assistance) or charge 

reduction.’’. 

Section 9A1.1 (as so redesignated) is 

amended in the heading by striking 

‘‘Chapter Eight’’ and inserting ‘‘Chapter 

Nine’’. 

The Commentary to § 9A1.1 (as so 

redesignated) captioned ‘‘Application 

Notes’’ is amended in Note 2 by striking 

‘‘§§ 8C2.2 through 8C2.9’’ both places 

such phrase appears and inserting 

‘‘§§ 9C2.2 through 9C2.9’’. 

Section 9A1.2(b) (as so redesignated) 

is amended— 

in paragraph (1) by striking ‘‘§ 8C1.1’’ 

and inserting ‘‘§ 9C1.1’’. 

in paragraph (2) by striking ‘‘§ 8C2.1’’ 

and inserting ‘‘§ 9C2.1’’; and by striking 

‘‘§§ 8C2.2 through 8C2.9’’ and inserting 

‘‘§§ 9C2.2 through 9C2.9’’; 

in paragraph (2)(A) by striking 

‘‘§ 8C2.2’’ and inserting ‘‘§ 9C2.2’’; 

in paragraph (2)(B) by striking 

‘‘§ 8C2.3’’ and inserting ‘‘§ 9C2.3’’; 

in paragraph (2)(C) by striking 

‘‘§ 8C2.4’’ and inserting ‘‘§ 9C2.4’’; 

in paragraph (2)(D) by striking 

‘‘§ 8C2.5 (Culpability Score)’’ and 

inserting ‘‘§ 9C2.5 (Culpability Score)’’; 

by striking ‘‘§ 8C2.5(f)’’ and inserting 

‘‘§ 9C2.5(f)’’; and by striking ‘‘§ 8B2.1’’ 

and inserting ‘‘§ 9B2.1’’; 

in paragraph (2)(E) by striking 

‘‘§ 8C2.6’’ and inserting ‘‘§ 9C2.6’’; 

in paragraph (2)(F) by striking 

‘‘§ 8C2.7’’ and inserting ‘‘§ 9C2.7’’; 

in paragraph (2)(G) by striking 

‘‘§ 8C2.8’’ and inserting ‘‘§ 9C2.8’’; 

in paragraph (2)(H) by striking 

‘‘§ 8C2.9’’ and inserting ‘‘§ 9C2.9’’; 

in the paragraph that begins ‘‘For any 

count’’ by striking ‘‘§ 8C2.1’’ and 

inserting ‘‘§ 9C2.1’’; and by striking 

‘‘§ 8C2.10’’ and inserting ‘‘§ 9C2.10’’; 

in paragraph (4) by striking ‘‘For 

grounds for departure from the 

applicable guideline fine range, refer to 

Part C, Subpart 4 (Departures from the 

Guideline Fine Range)’’ and inserting 

‘‘Determine whether a sentence below 

the otherwise applicable guideline range 

is appropriate upon motion of the 

government pursuant to § 9C4.1 

(Substantial Assistance to Authorities— 

Organizations (Policy Statement))’’; 

and by inserting at the end the 

following new paragraph (5): 

‘‘(5) Consider as a whole the 

additional factors identified in 18 U.S.C. 

3553(a) and the guidance provided in 

Part C, Subpart 5 (Consideration of 

Factors in Determining the Guideline 

Fine Range) of this chapter to determine 

the sentence that is sufficient, but not 

greater than necessary, to comply with 

the purposes set forth in 18 U.S.C. 

3553(a)(2). See 18 U.S.C. 3553(a).’’. 

The Commentary to § 9A1.2 (as so 

redesignated) captioned ‘‘Application 

Notes’’ is amended— 

in Note 2 by striking ‘‘and E 

(Acceptance of Responsibility)’’ and 

inserting ‘‘E (Acceptance of 

Responsibility), and F (Early Disposition 

Program)’’; by striking ‘‘Chapter Six 

(Sentencing Procedures, Plea 

Agreements, and Crime Victims’ 

Rights)’’ and inserting ‘‘Chapter Seven 

(Sentencing Procedures, Plea 

Agreements, and Crime Victims’ 

Rights)’’; and by striking ‘‘Chapter 

Seven (Violations of Probation and 

Supervised Release)’’ and inserting 

‘‘Chapter Eight (Violations of Probation 

and Supervised Release)’’; 

and in Note 3(B) by striking ‘‘§ 8C2.5’’ 

and inserting ‘‘§ 9C2.5’’. 

Section 9B1.2(a) (as so redesignated) 

is amended by striking ‘‘§ 8B1.1’’ and 

inserting ‘‘§ 9B1.1’’. 

Section 9B2.1(a) (as so redesignated) 

is amended by striking ‘‘§ 8C2.5’’ and 

inserting ‘‘§ 9C2.5’’; and by striking 

‘‘§ 8D1.4’’ and inserting ‘‘§ 9D1.4’’. 

The Commentary to § 9B2.1 (as so 

redesignated) captioned ‘‘Application 

Notes’’ is amended— 

in Note 1 by striking ‘‘§ 8A1.2’’ and 

inserting ‘‘§ 9A1.2’’; 

and in Note 2(D) by striking ‘‘§ 8A1.2’’ 

and inserting ‘‘§ 9A1.2’’. 


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Section 9C1.1 (as so redesignated) is 

amended by striking ‘‘§ 8C3.4’’ and 

inserting ‘‘§ 9C3.4’’. 

Section 9C2.1 (as so redesignated) is 

amended by striking ‘‘§§ 8C2.2 through 

8C2.9’’ and inserting ‘‘§§ 9C2.2 through 

9C2.9’’. 

The Commentary to § 9C2.1 (as so 

redesignated) captioned ‘‘Applications 

Notes’’ is amended— 

in Note 1 by striking ‘‘§§ 8C2.2 

through 8C2.9’’ in both places such 

phrase appears and inserting ‘‘§§ 9C2.2 

through 9C2.9’’; 

and in Note 2 by striking ‘‘§§ 8C2.2 

through 8C2.9’’ in both places such 

phrase appears and inserting ‘‘§§ 9C2.2 

through 9C2.9’’. 

The Commentary to § 9C2.1 (as so 

redesignated) captioned ‘‘Background’’ 

is amended by striking ‘‘§§ 8C2.2 

through 8C2.9’’ and inserting ‘‘§§ 9C2.2 

through 9C2.9’’; and by striking 

‘‘§ 8C2.10’’ and inserting ‘‘§ 9C2.10’’. 

Section 9C2.2(a) (as so redesignated) 

is amended by striking ‘‘§ 8B1.1’’ and 

inserting ‘‘§ 9B1.1’’; and by striking 

‘‘§ 8C3.3(a)’’ and inserting ‘‘§ 9C3.3(a)’’. 

Section 9C2.2(b) (as so redesignated) 

is amended by striking ‘‘§§ 8C2.3 

through 8C2.7’’ and inserting ‘‘§§ 9C2.3 

through 9C2.7’’; and by striking 

‘‘§ 8C3.3’’ and inserting ‘‘§ 9C3.3’’. 

The Commentary to § 9C2.2 (as so 

redesignated) captioned ‘‘Background’’ 

is amended by striking ‘‘§ 8C2.7(a)’’ and 

inserting ‘‘§ 9C2.7(a)’’; by striking 

‘‘§ 8C2.7 (Guideline Fine Range— 

Organizations)’’ and inserting ‘‘§ 9C2.7 

(Guideline Fine Range— 

Organizations)’’; and by striking 

‘‘§ 8C3.3’’ and inserting ‘‘§ 9C3.3’’. 

Section 9C2.3(a) (as so redesignated) 

is amended by striking ‘‘§ 8C2.1’’ and 

inserting ‘‘§ 9C2.1’’. 

The Commentary to § 9C2.3 (as so 

redesignated) captioned ‘‘Application 

Notes’’ is amended in Note 2 by striking 

‘‘and E (Acceptance of Responsibility)’’ 

and inserting ‘‘E (Acceptance of 

Responsibility), and F (Early Disposition 

Program)’’. 

Section 9C2.4(a)(1) (as so 

redesignated) is amended by striking 

‘‘§ 8C2.3’’ and inserting ‘‘§ 9C2.3’’. 

The Commentary to § 9C2.4 (as so 

redesignated) captioned ‘‘Application 

Notes’’ is amended— 

in Note 1 by striking ‘‘§ 8A1.2’’ and 

inserting ‘‘§ 9A1.2’’; 

and in Note 4 by striking 

‘‘§ 8C2.4(a)(3)’’ and inserting 

‘‘§ 9C2.4(a)(3)’’. 

The Commentary to § 9C2.4 (as so 

redesignated) captioned ‘‘Background’’ 

is amended by striking ‘‘§ 8C2.5’’ and 

inserting ‘‘§ 9C2.5’’. 

Section 9C2.5(f) (as so redesignated) is 

amended— 

in paragraph (1) by striking ‘‘§ 8B2.1’’ 

and inserting ‘‘§ 9B2.1’’; 

in paragraph (3)(A) by striking 

‘‘§ 8B2.1(b)(2)(B) or (C)’’ and inserting 

‘‘§ 9B2.1(b)(2)(B) or (C)’’; 

and in paragraph (3)(C)(i) by striking 

‘‘§ 8B2.1(b)(2)(C)’’ and inserting 

‘‘§ 9B2.1(b)(2)(C)’’. 

The Commentary to § 9C2.5 (as so 

redesignated) captioned ‘‘Application 

Notes’’ is amended— 

in Note 1 by striking ‘‘§ 8A1.2’’ and 

inserting ‘‘§ 9A1.2’’; 

and in Note 3 by striking ‘‘§ 8A1.2’’ 

and inserting ‘‘§ 9A1.2’’. 

Section 9C2.6 (as so redesignated) is 

amended by striking ‘‘§ 8C2.5’’ and 

inserting ‘‘§ 9C2.5’’. 

Section 9C2.7(a) (as so redesignated) 

is amended by striking ‘‘§ 8C2.4’’ and 

inserting ‘‘§ 9C2.4’’; and by striking 

‘‘§ 8C2.6’’ and inserting ‘‘§ 9C2.6’’. 

Section 9C2.7(b) (as so redesignated) 

is amended by striking ‘‘§ 8C2.4’’ and 

inserting ‘‘§ 9C2.4’’; and by striking 

‘‘§ 8C2.6’’ and inserting ‘‘§ 9C2.6’’. 

Section 9C2.8(a)(7) (as so 

redesignated) is amended by striking 

‘‘§ 8C2.5(c)’’ and inserting ‘‘§ 9C2.5(c)’’. 

Section 9C2.8(a)(8) (as so 

redesignated) is amended by striking 

‘‘§ 8C2.5’’ and inserting ‘‘§ 9C2.5’’. 

Section 9C2.8(a)(9) (as so 

redesignated) is amended by striking 

‘‘§ 8C2.5’’ and inserting ‘‘§ 9C2.5’’. 

Section 9C2.8(a)(11) (as so 

redesignated) is amended by striking 

‘‘§ 8B2.1’’ and inserting ‘‘§ 9B2.1’’. 

The Commentary to § 9C2.8 (as so 

redesignated) captioned ‘‘Application 

Notes’’ is amended— 

in Note 5 by striking ‘‘§ 8C2.5(c)’’ each 

place such term appears and inserting 

‘‘§ 9C2.5(c)’’; and by striking ‘‘In a case 

involving a pattern of illegality, an 

upward departure may be warranted.’’; 

and in Note 7 by striking 

‘‘§ 8C2.5(c)(2)’’ and inserting 

‘‘§ 9C2.5(c)(2)’’. 

The Commentary to § 9C2.8 (as so 

redesignated) is amended by inserting 

before the Commentary captioned 

‘‘Background’’ the following new 

Commentary: 

‘‘Additional Consideration: 

1. Pattern of Illegality.—In 

determining the appropriate fine 

pursuant to 18 U.S.C. 3553(a) and 

3572(a), evidence of a pattern of 

illegality may be relevant.’’. 

The Commentary to § 9C2.8 (as so 

redesignated) captioned ‘‘Background’’ 

is amended by striking ‘‘a basis for 

departure’’ and inserting ‘‘a basis for 

setting the fine either above or below 

the otherwise applicable guideline fine 

range’’. 

Section 9C2.9 (as so redesignated) is 

amended by striking ‘‘§ 8C2.8’’ and 

inserting ‘‘§ 9C2.8’’. 

Section 9C2.10 (as so redesignated) is 

amended by striking ‘‘§ 8C2.1’’ and 

inserting ‘‘§ 9C2.1’’; by striking 

‘‘§ 8C2.8’’ and inserting ‘‘§ 9C2.8’’; and 

by striking ‘‘§ 8C2.9’’ and inserting 

‘‘§ 9C2.9’’. 

The Commentary to § 9C2.10 (as so 

redesignated) captioned ‘‘Background’’ 

is amended by striking ‘‘§ 8C2.1’’ and 

inserting ‘‘§ 9C2.1’’. 

Section 9C3.1(a) (as so redesignated) 

is amended by striking ‘‘§ 8C1.1’’ and 

inserting ‘‘§ 9C1.1’’; by striking 

‘‘§ 8C2.7’’ and inserting ‘‘§ 9C2.7’’; by 

striking ‘‘§ 8C2.9’’ and inserting 

‘‘§ 9C2.9’’; and by striking ‘‘§ 8C2.10’’ 

and inserting ‘‘§ 9C2.10’’. 

Section 9C3.3(a) (as so redesignated) 

is amended by striking ‘‘§ 8C1.1’’ and 

inserting ‘‘§ 9C1.1’’; by striking 

‘‘§ 8C2.7’’ and inserting ‘‘§ 9C2.7’’; and 

by striking ‘‘§ 8C2.9’’ and inserting 

‘‘§ 9C2.9’’. 

Section 9C3.3(b) (as so redesignated) 

is amended by striking ‘‘§ 8C2.7’’ both 

places such term appears and inserting 

‘‘§ 9C2.7’’; and by striking ‘‘§ 8C2.9’’ 

both places such term appears and 

inserting ‘‘§ 9C2.9’’. 

The Commentary to § 9C3.3 (as so 

redesignated) captioned ‘‘Application 

Notes’’ is amended in Note 1 by striking 

‘‘§ 8C3.2’’ and inserting ‘‘§ 9C3.2’’. 

Chapter Nine, Part C, Subpart 4 (as so 

redesignated) is amended— 

in the heading by striking 

‘‘DEPARTURES FROM THE GUIDELINE 

FINE RANGE’’ and inserting 

‘‘SUBSTANTIAL ASSISTANCE TO 

AUTHORITIES’’; 

and by striking the Introductory 

Commentary as follows: 

‘‘Introductory Commentary 

The statutory provisions governing 

departures are set forth in 18 U.S.C. 

3553(b). Departure may be warranted if 

the court finds ‘that there exists an 

aggravating or mitigating circumstance 

of a kind, or to a degree, not adequately 

taken into consideration by the 

Sentencing Commission in formulating 

the guidelines that should result in a 

sentence different from that described.’ 

This subpart sets forth certain factors 

that, in connection with certain 

offenses, may not have been adequately 

taken into consideration by the 

guidelines. In deciding whether 

departure is warranted, the court should 

consider the extent to which that factor 

is adequately taken into consideration 

by the guidelines and the relative 

importance or substantiality of that 

factor in the particular case. 

To the extent that any policy 

statement from Chapter Five, Part K 

(Departures) is relevant to the 

organization, a departure from the 


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89216 Federal Register / Vol. 88, No. 246 / Tuesday, December 26, 2023 / Notices 

applicable guideline fine range may be 

warranted. Some factors listed in 

Chapter Five, Part K that are particularly 

applicable to organizations are listed in 

this subpart. Other factors listed in 

Chapter Five, Part K may be applicable 

in particular cases. While this subpart 

lists factors that the Commission 

believes may constitute grounds for 

departure, the list is not exhaustive.’’. 

Section 9C4.1(a) (as so redesignated) 

is amended by striking ‘‘the court may 

depart from the guidelines’’ and 

inserting ‘‘the court may set a fine that 

is below the otherwise applicable 

guideline fine range’’. 

The Commentary to § 9C4.1 (as so 

redesignated) captioned ‘‘Application 

Note’’ is amended in Note 1 by striking 

‘‘Departure’’ and inserting ‘‘Fine 

reduction’’. 

Chapter Nine, Part C (as so 

redesignated) is amended by inserting at 

the end the following new Subpart 5: 

‘‘5. Consideration of Factors in 

Determining the Guideline Fine Range 

Introductory Commentary 

Following United States v. Booker, 

543 U.S. 220 (2005), the fine range 

established in this chapter remains ‘the 

starting point and the initial 

benchmark,’but the ranges established 

by application of the Guidelines Manual 

are advisory. See Gall v. United States, 

552 U.S. 38, 49 (2007); Peugh v. United 

States, 569 U.S. 530 (2013). Consistent 

with 18 U.S.C. 3553(a), which remains 

binding on courts, courts must also 

consider a variety of additional factors 

when determining the sentence to be 

im-posed. This subpart sets forth certain 

factors that, in connection with certain 

offenses, may not have been adequately 

taken into consideration by the 

guidelines. These factors are provided to 

assist courts in complying with their 

obligation under 18 U.S.C. 3553(a). 

To the extent that any policy 

statement from Chapter Six, Part A 

(Consideration of Factors in 18 U.S.C. 

3553(a)) is relevant to the organization, 

the court may consider such policy 

statement when determining the 

applicable guideline fine range. Some 

factors listed in Chapter Six, Part A that 

are particularly applicable to 

organizations are listed in this subpart. 

Other factors listed in Chapter Six, Part 

A may be applicable in particular cases. 

While this subpart lists factors that the 

Commission believes may be relevant, 

the list is not exhaustive. 

§ 9C5.1. Factors Relating to the Nature 

and Circumstances of the 

Organization’s Offense (Policy 

Statement) 

(a) In considering the nature and 

circumstances of the offense pursuant to 

18 U.S.C. 3553(a)(1), the following 

factors, if not accounted for in the 

applicable Chapter Two guideline, may 

be relevant: 

(1) Risk of Death or Bodily Injury— 

The court may consider whether the 

offense resulted in death or bodily 

injury or involved a foreseeable risk of 

death or bodily injury, the nature of the 

harm and the extent to which the harm 

was intended or knowingly risked, and 

the extent to which such harm or risk 

is taken into account within the 

applicable guideline fine range. 

(2) Threat to National Security.—The 

offense constituted a threat to national 

security. 

(3) Threat to the Environment.—The 

offense presented a threat to the 

environment. 

(4) Threat to a Market.—The offense 

presented a risk to the integrity or 

continued existence of a market, 

including either private markets (e.g., a 

financial market, a commodities market, 

or a market for consumer goods) or 

public markets (e.g., government 

contracting). 

(5) Official Corruption.—The 

organization, in connection with the 

offense, bribed or unlawfully gave a 

gratuity to a public official, or attempted or conspired to bribe or 

unlawfully give a gratuity to a public 

official. 

(6) Public Entity.—The organization is 

a public entity. 

(7) Members or Beneficiaries of the 

Organization as Victims.—In cases in 

which the members or beneficiaries, 

other than shareholders, of the 

organization are direct victims of the 

offense, the court may consider whether 

imposing a fine upon the organization 

may increase the burden upon the 

victims of the offense without achieving 

a deterrent effect. 

(8) Remedial Costs that Greatly 

Exceed Gain.—In cases in which the 

organization has paid or has agreed to 

pay remedial costs arising from the 

offense that greatly exceed the gain that 

the organization received from the 

offense, the court may consider whether 

a substantial fine is necessary in order 

to achieve adequate punishment and 

deterrence, the level and extent of 

substantial authority personnel 

involvement in the offense, and the 

degree to which the loss exceeds the 

gain. 

(9) Mandatory Programs to Prevent 

and Detect Violations of Law.—The 

organization’s culpability score is 

reduced under § 9C2.5(f) (Effective 

Compliance and Ethics Program) and 

the organization had implemented its 

program in response to a court order or 

administrative order specifically 

directed at the organization, or the 

organization was required by law to 

have an effective compliance and ethics 

pro-gram but did not have such a 

program. 

(10) Exceptionally High 

Organizational Culpability.—The 

organization’s culpability score is 

greater than 10. 

(11) Exceptionally Low Organizational 

Culpability.—No individual within 

substantial authority personnel 

participated in, condoned, or was 

willfully ignorant of the offense; the 

organization at the time of the offense 

had an effective program to prevent and 

detect violations of law; and the base 

fine is determined under § 9C2.4(a)(1), 

§ 9C2.4(a)(3), or a special instruction for 

fines in Chapter Two (Offense Conduct). 

Commentary 

This policy statement recognizes that 

the nature, extent, and significance of 

offense specific characteristics can 

involve a range of considerations that 

are difficult or impossible to quantify 

for purposes of establishing the 

guideline fine range. This policy 

statement provides examples of factors 

relating to the nature and circumstances 

of the offense that are generally not 

considered in the calculation of the 

guideline fine range, but which courts 

regularly consider pursuant to 18 U.S.C. 

3553(a). The factors identified in this 

policy statement are not weighted in 

any manner or intended to be 

comprehensive or to otherwise infringe 

upon the court’s unique position to 

determine the most appropriate 

sentence.’’. 

Chapter Nine, Part D is amended in 

the Introductory Commentary by 

striking ‘‘Section 8D1.1’’ and inserting 

‘‘Section 9D1.1’’; and by striking 

‘‘Sections 8D1.2 through 8D1.4, and 

8F1.1’’ and inserting ‘‘Sections 9D1.2 

through 9D1.4, and 9F1.1’’. 

Section 9D1.1(a)(1) (as so 

redesignated) is amended by striking 

‘‘§ 8B1.1’’ and inserting ‘‘§ 9B1.1’’; by 

striking ‘‘§ 8B1.2’’ and inserting 

‘‘§ 9B1.2’’; and by striking ‘‘§ 8B1.3’’ and 

inserting ‘‘§ 9B1.3’’. 

Section 9D1.4(b) (as so redesignated) 

is amended by striking ‘‘§ 8D1.1’’ and 

inserting ‘‘§ 9D1.1’’. 

Section 9D1.4(b)(1) (as so 

redesignated) is amended by striking 

‘‘§ 8B2.1’’ and inserting ‘‘§ 9B2.1’’. 

The Commentary to § 9D1.4 captioned 

‘‘Application Notes’’ is amended in 


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Federal Register / Vol. 88, No. 246 / Tuesday, December 26, 2023 / Notices 89217 

Note 1 by striking ‘‘§ 8D1.1’’ and 

inserting ‘‘§ 9D1.1’’; and by striking 

‘‘§ 8B2.1’’ and inserting ‘‘§ 9B2.1’’. 

The Commentary to § 9F1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 2 by striking ‘‘§§ 8D1.3 (Conditions 

of Probation—Organizations) and 8D1.4 

(Recommended Conditions of 

Probation—Organizations)’’ and 

inserting ‘‘§§ 9D1.3 (Conditions of 

Probation—Organizations) and 9D1.4 

(Recommended Conditions of 

Probation—Organizations)’’. 

[FR Doc. 2023–28317 Filed 12–22–23; 8:45 am] 

BILLING CODE 2210–40–P 


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