128 Federal Register / Vol. 90, No. 1 / Thursday, January 2, 2025 / 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 proposed 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 3, 

2025. Written reply comments, which 

may only respond to issues raised 

during the original comment period, 

should be received by the Commission 

not later than February 18, 2025. Public 

comment regarding a proposed 

amendment received after the close of 

the comment period, and reply 

comment received on issues not raised 

during the original comment period, 

may not be considered. 

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 relating to 

§ 4B1.2 (Definitions of Terms Used in 

Section 4B1.1), including amendments 

to (A) § 4B1.2 to eliminate the use of the 

categorical and modified categorical 

approaches by providing a definition for 

‘‘crime of violence’’ that is based on a 

defendant’s conduct and a definition of 

‘‘controlled substance offense’’ that lists 

specific federal drug statutes; (B) the 

commentary to the guidelines that use 

the terms ‘‘crime of violence’’ and 

‘‘controlled substance offense’’ and 

define these terms by making specific 

reference to § 4B1.2; and (C) related 

issues for comment. 

(2) A two-part proposed amendment 

to § 2K2.1 (Unlawful Receipt, 

Possession, or Transportation of 

Firearms or Ammunition; Prohibited 

Transactions Involving Firearms or 

Ammunition), including (A) 

amendments to § 2K2.1 to address its 

application to offenses involving 

machinegun conversion devices 

(MCDs), and related issues for comment; 

and (B) an amendment to § 2K2.1(b)(4) 

to establish a mens rea requirement for 

the enhancements for stolen firearms 

and firearms with modified serial 

numbers, and a related issue for 

comment. 

(3) A two-part proposed amendment 

addressing certain circuit conflicts 

involving § 2B3.1 (Robbery) and § 4A1.2 

(Definitions and Instructions for 

Computing Criminal History), including 

(A) three options for amending 

§ 2B3.1(b)(4)(B) to address a circuit 

conflict concerning whether the 

‘‘physically restrained’’ enhancement 

can be applied to situations in which a 

victim is restricted from moving at 

gunpoint but is not otherwise 

immobilized through physical measures 

such as those listed in the ‘‘physically 

restrained’’ definition set forth in the 

Commentary to § 1B1.1 (Application 

Instructions), and related issues for 

comment; and (B) an amendment to 

§ 4A1.2(a)(2) to address a circuit conflict 

concerning whether a traffic stop is an 

‘‘intervening arrest’’ for purposes of 

determining whether multiple prior 

sentences should be ‘‘counted 

separately or treated as a single 

sentence’’ when assigning criminal 

history points (‘‘single-sentence rule’’). 

(4) 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 


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‘‘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-2025- 

amendments-federal-sentencingguidelines-published-december-2024. 

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. Career Offender 

Synopsis of Proposed Amendment: In 

August 2024, the Commission identified 

as one of its policy priorities for the 

amendment cycle ending May 1, 2025, 

‘‘[s]implifying the guidelines and 

clarifying their role in sentencing,’’ 

including ‘‘revising the ‘categorical 

approach’ for purposes of the career 

offender guideline.’’ U.S. Sent’g 

Comm’n, ‘‘Notice of Final Priorities,’’ 89 

FR 66176 (Aug. 14, 2024). 

The proposed amendment addresses 

recurrent criticism of the categorical 

approach and modified categorical 

approach, which courts have applied in 

the context of § 4B1.1 (Career Offender). 

It would eliminate the categorical 

approach when determining whether an 

offense qualifies as a crime of violence 

by providing a definition for ‘‘crime of 

violence’’ that is based on a defendant’s 

conduct and a definition of ‘‘controlled 

substance offense’’ that is limited to 

specific federal drug statutes. These 

changes are intended to correct some of 

the ‘‘odd’’ and ‘‘arbitrary’’ results that 

the categorical approach has produced 

relating to the ‘‘crime of violence’’ 

definition (see, e.g., United States v. 

Davis, 875 F.3d 592, 595 (11th Cir. 

2017); United States v. McCollum, 885 

F.3d 300, 309–14 (4th Cir. 2018) 

(Traxler, J., concurring); id. (Wilkinson, 

J., dissenting)), and to provide a 

definition of ‘‘controlled substance 

offense’’ that is based on enumerated 

federal drug trafficking offenses. 

The Categorical Approach as Developed 

by Supreme Court Jurisprudence 

Several statutes and guidelines 

provide enhanced penalties for 

defendants convicted of offenses that 

meet the definition of a particular 

category of crimes. Courts typically 

determine whether a conviction fits 

within the definition of a particular 

category of crimes through the 

application of the ‘‘categorical 

approach’’ and ‘‘modified categorical 

approach,’’ as set forth by Supreme 

Court jurisprudence. The categorical 

and modified categorical approaches 

require courts to look only to the 

elements of the offense, rather than the 

particular facts underlying the 

conviction, to determine whether the 

offense meets the definition of a 

particular category of crimes. In 

applying the modified categorical 

approach, courts may look to certain 

additional sources of information, now 

commonly referred to as the ‘‘Shepard 

documents,’’ to determine the elements 

of the offense of conviction. See Taylor 

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

(holding that, under the ‘‘categorical 

approach,’’ courts must compare the 

elements of the offense as described in 

the statute of conviction to the elements 

of the applicable definition of a 

particular category of crimes to 

determine if such offense criminalizes 

the same or a narrower range of conduct 

than the definition captures in order to 

serve as a predicate offense); Shepard v. 

United States, 544 U.S. 13 (2005) 

(holding that courts may use a 

‘‘modified categorical approach’’ in 

cases where the statute of conviction is 

‘‘overbroad,’’ that is, the statute contains 

multiple offenses with different offense 

elements). 

Application of the Categorical 

Approach in the Guidelines 

Supreme Court jurisprudence on this 

subject pertains to statutory provisions 

(e.g., 18 U.S.C. 924(e)), but courts have 

applied the categorical and modified 

categorical approaches to guideline 

provisions. For example, courts have 

used these approaches to determine if a 

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

‘‘controlled substance offense’’ for 

purposes of applying the career offender 

guideline at § 4B1.1. 

Commission data indicates that of the 

64,124 individuals sentenced in fiscal 

year 2023, 1,351 individuals (2.1%) 

were sentenced under the career 

offender guideline. While representing a 

relatively small portion of the federal 

caseload each year, the categorical 

approach continues to result in 

substantial litigation. 

General Criticism of the Categorical 

Approach as Developed by Supreme 

Court Jurisprudence 

The Commission has received 

significant comment over the years 

regarding the complexity and 

limitations of the categorical approach, 

as developed by Supreme Court 

jurisprudence. Courts have criticized 

the categorical approach as a ‘‘legal 

fiction,’’ in which an offense that a 

defendant commits violently is deemed 

to be a non-violent offense because 

other defendants at other times could 

have been convicted of violating the 

same statute without violence, often 

leading to ‘‘odd’’ and ‘‘arbitrary’’ results 

(e.g., United States v. Davis, 875 F.3d 

592, 595 (11th Cir. 2017); United States 

v. McCollum, 885 F.3d 300, 309–14 (4th 

Cir. 2018) (Traxler, J., concurring); id. 

(Wilkinson, J., dissenting)). 

Feedback From Stakeholders 

The Commission has also received 

input at roundtable discussions with 

several stakeholders with diverse 

perspective and expertise within the 

criminal justice system. Many 

stakeholders suggested that the 

Commission should eliminate the 

categorical approach to capture violent 

offenses that are currently excluded 

while also narrowing the scope of the 

‘‘controlled substance offense’’ 

definition, particularly its reach over 

predicate offenses. Many stakeholders 

also recommend that the definition of 

‘‘controlled substance offense’’ should 

only cover federal drug offenses and 


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130 Federal Register / Vol. 90, No. 1 / Thursday, January 2, 2025 / Notices 

exclude prior state drug offenses for 

purposes of the career offender 

guideline. 

Many stakeholders have remarked 

that the Commission should limit the 

number of qualifying prior offenses 

overall for purposes the career offender 

guideline. Some stakeholders suggested 

that the Commission should condition 

which convictions qualify as predicate 

offenses by establishing a minimum 

sentence length threshold. 

Proposed Changes to § 4B1.2 

The proposed amendment would 

amend § 4B1.2 (Definitions of Terms 

Used in Section 4B1.1) in several ways. 

First, the proposed amendment would 

move the definition of ‘‘controlled 

substance offense’’ from subsection (b) 

to subsection (a). It would also revise 

the definition of ‘‘controlled substance 

offense’’ to exclude state drug offenses 

from the scope of its application by 

listing specific federal statutes relating 

to drug offenses. The proposed 

amendment lists the federal statutes that 

are controlled substance offenses under 

the current definition to maintain the 

status quo with respect to federal drug 

trafficking statutes. The federal drug 

trafficking statutes that do not appear in 

brackets are specifically referenced in 

the career offender directive at 28 U.S.C. 

994(h). The proposed amendment 

would also move to subsection (a) the 

provision currently located in 

Commentary to § 4B1.2 stating that a 

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

a ‘‘controlled substance offense’’ if the 

offense of conviction established that 

the underlying offense was a 

‘‘controlled substance offense.’’ 

Second, the proposed amendment 

would place all provisions related to 

‘‘crime of violence’’ in subsection (b). It 

would define the term ‘‘crime of 

violence’’ based on the defendant’s own 

offense conduct which, consistent with 

subsection (a)(1)(A) of § 1B1.3 (Relevant 

Conduct), is the conduct that the 

defendant committed, aided or abetted, 

counseled, commanded, induced, 

procured, or willfully caused during the 

commission of the offense, in 

preparation for that offense, or in the 

course of attempting to avoid detection 

or responsibility for that offense. It 

provides a list of types of qualifying 

conduct that includes a ‘‘force clause’’ 

at § 4B1.2(b)(1)(A) (which closely tracks 

the language of current § 4B1.2(a)(1) but 

would incorporate a parenthetical insert 

defining the term ‘‘physical force’’ as 

‘‘force capable of causing physical pain 

or injury to another person’’) and 

provisions relating to conduct that 

would constitute certain specific 

offenses that currently qualify as a 

‘‘crime of violence,’’ such as forcible sex 

offenses, robbery, arson, and extortion. 

The proposed amendment would also 

include a provision at subsection (b)(2) 

that would allow certain inchoate 

offenses to still qualify as ‘‘crimes of 

violence.’’ In addition, the proposed 

amendment would require the 

government to make a prima facie 

showing that an offense is a ‘‘crime of 

violence’’ by using only a specific list of 

sources of information from the record. 

Third, the proposed amendment sets 

forth three options for setting a 

minimum sentence length requirement 

for a prior conviction to qualify as a 

‘‘crime of violence’’ or ‘‘controlled 

substance offense.’’ Option 1 would 

limit qualifying prior convictions to 

only convictions that are counted 

separately under § 4A1.1(a) [or (b)]. 

Option 2 would limit qualifying prior 

convictions to only convictions that 

resulted in a sentence imposed of [five 

years][three years][one year] or more 

that are counted separately under 

§ 4A1.1(a) [or (b)]. Option 2 brackets the 

possibility of including a provision that 

provides that a conviction shall not 

qualify as a prior felony conviction 

under § 4B1.2 if the defendant can 

establish that the conviction resulted in 

a sentence for which the defendant 

served less than [three years] [two 

years][six months] in prison. Option 3 

would limit qualifying prior convictions 

to only convictions that resulted in a 

sentence for which the defendant served 

[five years][three years][one year] or 

more in prison and that are counted 

separately under § 4A1.1(a) [or (b)]. All 

three options include two suboptions. 

Suboption A in each option would set 

the minimum sentence length 

requirement for purposes of both ‘‘crime 

of violence’’ and ‘‘controlled substance 

offense.’’ Suboption B in each option 

would set the minimum sentence length 

requirement for purposes of ‘‘crime of 

violence’’ only. 

Changes to Other Guidelines 

The current definitions of ‘‘crime of 

violence’’ and ‘‘controlled substance’’ at 

§ 4B1.2 are incorporated by reference in 

several other guidelines in the 

Guidelines Manual. The proposed 

amendment would maintain the status 

quo by amending the Commentary to 

these guidelines to incorporate the 

relevant part or parts of § 4B1.2. The 

proposed amendment would make such 

changes 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), § 2S1.1 (Laundering of 

Monetary Instruments; Engaging in 

Monetary Transactions in Property 

Derived from Unlawful Activity), 

§ 4A1.2 (Definitions and Instructions for 

Computing Criminal History), § 4B1.4 

(Armed Career Criminal), § 5K2.17 

(Semiautomatic Firearms Capable of 

Accepting Large Capacity Magazine 

(Policy Statement)), and § 7B1.1 

(Classification of Violations (Policy 

Statement)). 

Issues for comment are also provided. 

Proposed Amendment 

Section 4B1.2 is amended by striking 

the following: 

‘‘(a) Crime of Violence.—The term 

‘crime of violence’ means any offense 

under federal or state law, punishable 

by imprisonment for a term exceeding 

one year, that— 

(1) has as an element the use, 

attempted use, or threatened use of 

physical force against the person of 

another; or 

(2) is murder, voluntary 

manslaughter, kidnapping, aggravated 

assault, a forcible sex offense, robbery, 

arson, extortion, or the use or unlawful 

possession of a firearm described in 26 

U.S.C. 5845(a) or explosive material as 

defined in 18 U.S.C. 841(c). 

(b) Controlled Substance Offense.— 

The term ‘controlled substance offense’ 

means an offense under federal or state 

law, punishable by imprisonment for a 

term exceeding one year, that— 

(1) prohibits the manufacture, import, 

export, distribution, or dispensing of a 

controlled substance (or a counterfeit 

substance) or the possession of a 

controlled substance (or a counterfeit 

substance) with intent to manufacture, 

import, export, distribute, or dispense; 

or 

(2) is an offense described in 46 

U.S.C. 70503(a) or § 70506(b). 

(c) Two Prior Felony Convictions.— 

The term ‘two prior felony convictions’ 

means (1) the defendant committed the 

instant offense of conviction subsequent 

to sustaining at least two felony 

convictions of either a crime of violence 

or a controlled substance offense (i.e., 

two felony convictions of a crime of 

violence, two felony convictions of a 

controlled substance offense, or one 

felony conviction of a crime of violence 

and one felony conviction of a 

controlled substance offense), and (2) 

the sentences for at least two of the 

aforementioned felony convictions are 

counted separately under the provisions 

of § 4A1.1(a), (b), or (c). The date that a 

defendant sustained a conviction shall 

be the date that the guilt of the 

defendant has been established, whether 


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Federal Register / Vol. 90, No. 1 / Thursday, January 2, 2025 / Notices 131 

by guilty plea, trial, or plea of nolo 

contendere. 

(d) Inchoate Offenses Included.—The 

terms ‘crime of violence’ and ‘controlled 

substance offense’ include the offenses 

of aiding and abetting, attempting to 

commit, or conspiring to commit any 

such offense. 

(e) Additional Definitions.— 

(1) Forcible Sex Offense.—‘Forcible 

sex offense’ includes where consent to 

the conduct is not given or is not legally 

valid, such as where consent to the 

conduct is involuntary, incompetent, or 

coerced. The offenses of sexual abuse of 

a minor and statutory rape are included 

only if the sexual abuse of a minor or 

statutory rape was (A) an offense 

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

offense under state law that would have 

been an offense under section 2241(c) if 

the offense had occurred within the 

special maritime and territorial 

jurisdiction of the United States. 

(2) Extortion.—‘Extortion’ is obtaining 

something of value from another by the 

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

physical injury, or (C) threat of physical 

injury. 

(3) Robbery.—‘Robbery’ is the 

unlawful taking or obtaining of personal 

property from the person or in the 

presence of another, against his will, by 

means of actual or threatened force, or 

violence, or fear of injury, immediate or 

future, to his person or property, or 

property in his custody or possession, or 

the person or property of a relative or 

member of his family or of anyone in his 

company at the time of the taking or 

obtaining. The phrase ‘actual or 

threatened force’ refers to force that is 

sufficient to overcome a victim’s 

resistance. 

(4) Prior Felony Conviction.—‘Prior 

felony conviction’ means a prior adult 

federal or state conviction for an offense 

punishable by death or imprisonment 

for a term exceeding one year, regardless 

of whether such offense is specifically 

designated as a felony and regardless of 

the actual sentence imposed. A 

conviction for an offense committed at 

age eighteen or older is an adult 

conviction. 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). 

Commentary 

Application Notes: 

1. Further Considerations Regarding 

‘Crime of Violence’ and ‘Controlled 

Substance Offense’.—For purposes of 

this guideline— 

Unlawfully possessing a listed 

chemical with intent to manufacture a 

controlled substance (21 U.S.C. 

841(c)(1)) is a ‘controlled substance 

offense.’ 

Unlawfully possessing a prohibited 

flask or equipment with intent to 

manufacture a controlled substance (21 

U.S.C. 843(a)(6)) is a ‘controlled 

substance offense.’ 

Maintaining any place for the purpose 

of facilitating a drug offense (21 U.S.C. 

856) is a ‘controlled substance offense’ 

if the offense of conviction established 

that the underlying offense (the offense 

facilitated) was a ‘controlled substance 

offense.’ 

Using a communications facility in 

committing, causing, or facilitating a 

drug offense (21 U.S.C. 843(b)) is a 

‘controlled substance offense’ if the 

offense of conviction established that 

the underlying offense (the offense 

committed, caused, or facilitated) was a 

‘controlled substance offense.’ 

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

§ 929(a) is a ‘crime of violence’ or a 

‘controlled substance offense’ if the 

offense of conviction established that 

the underlying offense was a ‘crime of 

violence’ or a ‘controlled substance 

offense’. (Note that in the case of a prior 

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

if the defendant also was convicted of 

the underlying offense, the sentences for 

the two prior convictions will be treated 

as a single sentence under § 4A1.2 

(Definitions and Instructions for 

Computing Criminal History).) 

2. Offense of Conviction as Focus of 

Inquiry.—Section 4B1.1 (Career 

Offender) expressly provides that the 

instant and prior offenses must be 

crimes of violence or controlled 

substance offenses of which the 

defendant was convicted. Therefore, in 

determining whether an offense is a 

crime of violence or controlled 

substance for the purposes of § 4B1.1 

(Career Offender), the offense of 

conviction (i.e., the conduct of which 

the defendant was convicted) is the 

focus of inquiry. 

3. Applicability of § 4A1.2.—The 

provisions of § 4A1.2 (Definitions and 

Instructions for Computing Criminal 

History) are applicable to the counting 

of convictions under § 4B1.1. 

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.’’; 

and inserting the following: 

‘‘(a) Controlled Substance Offense.— 

(1) Definition.—The term ‘controlled 

substance offense’ means an offense 

under 21 U.S.C. 841, § 952(a), § 955, or 

§ 959, or 46 U.S.C. 70503(a) or 

§ 70506(b), [or 21 U.S.C. 843(a)(6), 

§ 843(b), § 846 (if the object of the 

conspiracy or attempt was to commit an 

offense covered by this provision), 

§ 856, § 860, § 960, or § 963 (if the object 

of the conspiracy or attempt was to 

commit an offense covered by this 

provision)]. 

(2) Additional Consideration.—A 

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

is a ‘controlled substance offense’ if the 

offense of conviction established that 

the underlying offense was a ‘controlled 

substance offense.’ (Note that in the case 

of a prior 18 U.S.C. 924(c) or § 929(a) 

conviction, if the defendant also was 

convicted of the underlying offense, the 

sentences for the two prior convictions 

will be treated as a single sentence 

under § 4A1.2 (Definitions and 

Instructions for Computing Criminal 

History).) 

(b) Crime of Violence.— 

(1) Definition.—The term ‘crime of 

violence’ means any offense under 

federal or state law, punishable by 

imprisonment for a term exceeding one 

year, in which the defendant engaged in 

any of the following conduct: 

(A) The use, attempted use, or 

threatened use of physical force (i.e., 

force capable of causing physical pain 

or injury to another person) against the 

person of another. 

(B) A sexual act with a person where 

the person does not consent or gives 

consent that is not legally valid (such as 

involuntary, incompetent, or coerced 

consent). However, conduct constituting 

sexual abuse of a minor and statutory 

rape is included only if the defendant 

engaged in conduct that constitutes (i) 

an offense described in 18 U.S.C. 

2241(c), or (ii) an offense under state 

law that would have been an offense 

under 18 U.S.C. 2241(c) if the offense 

had occurred within the special 

maritime and territorial jurisdiction of 

the United States. 

(C) The unlawful taking or obtaining 

of personal property from a person, or 

in the presence of a person, against the 

person’s will by means of actual or 

threatened force (i.e., force that is 

sufficient to overcome a victim’s 

resistance), or violence, or fear of injury 

against: (i) the person, the property of 

such person, or property in the custody 


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or possession of such person; (ii) a 

relative or family member of the person, 

or the property of such relative or family 

member; or (iii) anyone in the company 

of the person at the time of the taking 

or obtaining, or their property. 

(D) The obtaining something of value 

from another by the wrongful use of (i) 

force, (ii) fear of physical injury, or (iii) 

threat of physical injury. 

(E) The willful or malicious setting of 

fire to or burning of property. 

(F) The use or unlawful possession of 

a firearm described in 26 U.S.C. 5845(a) 

or explosive materials as defined in 18 

U.S.C. 841(c). 

(2) Covered Inchoate Offenses.—An 

offense is a ‘crime of violence’ if the 

defendant engaged in any of the conduct 

described in subsection (b)(1) regardless 

of whether the offense of conviction was 

for a substantive offense, aiding and 

abetting the commission of an offense, 

attempting to commit an offense, or 

conspiring to commit an offense. 

(3) Determination of Whether an 

Offense Is a ‘Crime of Violence’.—In 

determining whether an offense is a 

‘crime of violence,’ the focus of inquiry 

is on the conduct that the defendant 

committed, aided or abetted, counseled, 

commanded, induced, procured, or 

willfully caused during the commission 

of the offense, in preparation for that 

offense, or in the course of attempting 

to avoid detection or responsibility for 

that offense. See subsection (a)(1)(A) of 

§ 1B1.3 (Relevant Conduct). 

(4) Sources of Information.—In 

making a prima facie showing that the 

offense is a ‘crime of violence,’ the 

government may only use the following 

sources of information from the record: 

(A) The charging document. 

(B) The jury instructions and 

accompanying verdict form. 

(C) The plea agreement or transcript 

of colloquy between judge and 

defendant in which the factual basis of 

the guilty plea was confirmed by the 

defendant. 

[(D) The judge’s formal rulings of law 

or findings of fact. 

(E) The judgment of conviction. 

(F) Any explicit factual finding by the 

trial judge to which the defendant 

assented.] 

(G) Any comparable judicial record of 

the sources described in paragraphs (A) 

through (F). 

[Option 1 for Subsection (c) (Limiting 

Prior Convictions to Sentences 

Receiving Points under § 4A1.1(a)[or 

(b)]): 

[Suboption 1A (Limitation applicable 

to both ‘‘crime of violence’’ and 

‘‘controlled substance offense’’): 

(c) Two Prior Felony Convictions.— 

The term ‘two prior felony convictions’ 

means: (1) the defendant committed the 

instant offense of conviction subsequent 

to sustaining at least two felony 

convictions of either a crime of violence 

or a controlled substance offense (i.e., 

two felony convictions of a crime of 

violence, two felony convictions of a 

controlled substance offense, or one 

felony conviction of a crime of violence 

and one felony conviction of a 

controlled substance offense); and (2) 

the sentences for at least two of the 

aforementioned felony convictions are 

counted separately under § 4A1.1(a) [or 

(b)]. The date that a defendant sustained 

a conviction shall be the date that the 

guilt of the defendant has been 

established, whether by guilty plea, 

trial, or plea of nolo contendere.] 

[Suboption 1B (Limitation applicable 

only to ‘‘crime of violence’’): 

(c) Two Prior Felony Convictions.— 

The term ‘two prior felony convictions’ 

means the defendant committed the 

instant offense of conviction subsequent 

to sustaining at least two felony 

convictions of either a crime of violence 

or a controlled substance offense (i.e., 

two felony convictions of a crime of 

violence, two felony convictions of a 

controlled substance offense, or one 

felony conviction of a crime of violence 

and one felony conviction of a 

controlled substance offense). The date 

that a defendant sustained a conviction 

shall be the date that the guilt of the 

defendant has been established, whether 

by guilty plea, trial, or plea of nolo 

contendere. For purposes of 

determining whether the defendant 

sustained at least two felony convictions 

of either a crime of violence or a 

controlled substance offense, use only: 

(1) any such felony conviction of a 

‘controlled substance offense’ that is 

counted separately under § 4A1.1(a), (b), 

or (c); or (2) any such felony conviction 

of a ‘crime of violence’ that is counted 

separately under § 4A1.1(a) [or (b)].]] 

[Option 2 for Subsection (c) (Limiting 

Prior Convictions Through a SentenceImposed Approach): 

[Suboption 2A (Limitation applicable 

to both ‘‘crime of violence’’ and 

‘‘controlled substance offense’’): 

(c) Two Prior Felony Convictions.— 

The term ‘two prior felony convictions’ 

means: (1) the defendant committed the 

instant offense of conviction subsequent 

to sustaining at least two felony 

convictions of either a crime of violence 

or a controlled substance offense (i.e., 

two felony convictions of a crime of 

violence, two felony convictions of a 

controlled substance offense, or one 

felony conviction of a crime of violence 

and one felony conviction of a 

controlled substance offense); and (2) 

each of at least two of the 

aforementioned felony convictions (A) 

is counted separately under § 4A1.1(a) 

[or (b)], and (B) resulted in a sentence 

imposed of [five years][three years][one 

year] or more. The date that a defendant 

sustained a conviction shall be the date 

that the guilt of the defendant has been 

established, whether by guilty plea, 

trial, or plea of nolo contendere. For 

purposes of this provision, ‘sentence 

imposed’ has the meaning given the 

term ‘sentence of imprisonment’ in 

§ 4A1.2(b) and Application Note 2 of the 

Commentary to § 4A1.2. The length of 

the sentence imposed includes any term 

of imprisonment given upon revocation 

of probation, parole, or supervised 

release, regardless of when the 

revocation occurred. 

[A conviction shall not qualify as a 

prior felony conviction under this 

provision if the defendant can establish 

that the conviction resulted in a 

sentence for which the defendant served 

less than [three years] [two years][six 

months] in prison.]] 

[Suboption 2B (Limitation applicable 

only to ‘‘crime of violence’’): 

(c) Two Prior Felony Convictions.— 

The term ‘two prior felony convictions’ 

means the defendant committed the 

instant offense of conviction subsequent 

to sustaining at least two felony 

convictions of either a crime of violence 

or a controlled substance offense (i.e., 

two felony convictions of a crime of 

violence, two felony convictions of a 

controlled substance offense, or one 

felony conviction of a crime of violence 

and one felony conviction of a 

controlled substance offense). The date 

that a defendant sustained a conviction 

shall be the date that the guilt of the 

defendant has been established, whether 

by guilty plea, trial, or plea of nolo 

contendere. For purposes of 

determining whether the defendant 

sustained at least two felony convictions 

of either a crime of violence or a 

controlled substance offense, use only: 

(1) any such felony conviction of a 

‘controlled substance offense’ that is 

counted separately under § 4A1.1(a), (b), 

or (c); or (2) any such felony conviction 

of a ‘crime of violence’ that (A) is 

counted separately under § 4A1.1(a) [or 

(b)], and (B) resulted in a sentence 

imposed of [five years][three years][one 

year] or more. For purposes of this 

provision, ‘sentence imposed’ has the 

meaning given the term ‘sentence of 

imprisonment’ in § 4A1.2(b) and 

Application Note 2 of the Commentary 

to § 4A1.2. The length of the sentence 

imposed includes any term of 

imprisonment given upon revocation of 

probation, parole, or supervised release, 

regardless of when the revocation 

occurred. 


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[A conviction of a crime of violence 

shall not qualify as a prior felony 

conviction under this provision if the 

defendant can establish that the 

conviction resulted in a sentence for 

which the defendant served less than 

[three years] [two years][six months] in 

prison.]]] 

[Option 3 for Subsection (c) (Limiting 

Prior Convictions Through a TimeServed Approach): 

[Suboption 3A (Limitation applicable 

to both ‘‘crime of violence’’ and 

‘‘controlled substance offense’’): 

(c) Two Prior Felony Convictions.— 

The term ‘two prior felony convictions’ 

means: (1) the defendant committed the 

instant offense of conviction subsequent 

to sustaining at least two felony 

convictions of either a crime of violence 

or a controlled substance offense (i.e., 

two felony convictions of a crime of 

violence, two felony convictions of a 

controlled substance offense, or one 

felony conviction of a crime of violence 

and one felony conviction of a 

controlled substance offense); and (2) 

each of at least two of the 

aforementioned felony convictions (A) 

is counted separately under § 4A1.1(a) 

[or (b)], and (B) resulted in a sentence 

for which the defendant served [five 

years][three years][one year] or more in 

prison. The date that a defendant 

sustained a conviction shall be the date 

that the guilt of the defendant has been 

established, whether by guilty plea, 

trial, or plea of nolo contendere.] 

[Suboption 3B (Limitation applicable 

only to ‘‘crime of violence’’): 

(c) Two Prior Felony Convictions.— 

The term ‘two prior felony convictions’ 

means the defendant committed the 

instant offense of conviction subsequent 

to sustaining at least two felony 

convictions of either a crime of violence 

or a controlled substance offense (i.e., 

two felony convictions of a crime of 

violence, two felony convictions of a 

controlled substance offense, or one 

felony conviction of a crime of violence 

and one felony conviction of a 

controlled substance offense). The date 

that a defendant sustained a conviction 

shall be the date that the guilt of the 

defendant has been established, whether 

by guilty plea, trial, or plea of nolo 

contendere. For purposes of 

determining whether the defendant 

sustained at least two felony convictions 

of either a crime of violence or a 

controlled substance offense, use only: 

(1) any such felony conviction of a 

‘controlled substance offense’ that is 

counted separately under § 4A1.1(a), (b), 

or (c); or (2) any such felony conviction 

of a ‘crime of violence’ that (A) is 

counted separately under § 4A1.1(a) [or 

(b)], and (B) resulted in a sentence for 

which the defendant served [five 

years][three years][one year] or more in 

prison.]] 

(d) Prior Felony Conviction.—‘Prior 

felony conviction’ means a prior adult 

conviction for an offense punishable by 

death or imprisonment for a term 

exceeding one year, regardless of 

whether such offense is specifically 

designated as a felony and regardless of 

the actual sentence imposed. A 

conviction for an offense committed at 

age eighteen or older is an adult 

conviction. 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). 

Commentary 

Application Note: 

1. Conduct Constituting Robbery and 

Extortion Offenses.—The Commission 

anticipates that subsection (b)(1)(A) will 

be sufficient to include as crimes of 

violence conduct that would constitute 

most robbery and extortion offenses that 

involve violence. Subsections (b)(1)(C) 

and (b)(1)(D) are included to provide 

clarity and ease of application. 

Background: Section 4B1.2 defines 

the terms ‘crime of violence,’ ‘controlled 

substance offense,’ and ‘two prior felony 

convictions.’ Prior to [amendment year], 

to determine if an offense met the 

definition of ‘crime of violence’ or 

‘controlled substance offense’ in 

§ 4B1.2, courts used the categorical 

approach and the modified categorical 

approach, as set forth in Supreme Court 

jurisprudence. See, e.g., Taylor v. 

United States, 495 U.S. 575 (1990); 

Shepard v. United States, 544 U.S. 13 

(2005); Descamps v. United States, 570 

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

579 U.S. 500 (2016). These Supreme 

Court cases, however, involved statutory 

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

than guideline provisions. 

In [amendment year], the Commission 

amended § 4B1.2 to eliminate the use of 

the categorical approach and modified 

categorical approach established by 

Supreme Court jurisprudence for 

purposes of determining whether an 

offense is a ‘crime of violence’ or a 

‘controlled substance offense’ in 

§ 4B1.2. See USSG App. C, Amendment 

[ll] (effective [Date]). Section 4B1.2 

provides a list of the federal drug 

statutes that qualify as a ‘controlled 

substance offense.’ The approach set out 

in the guideline for determining 

whether an offense of conviction is a 

‘crime of violence’ allows a court to 

consider the conduct of the defendant 

underlying the offense of conviction. 

The approach set forth by this guideline 

requires the court to consider the 

defendant’s own conduct and conduct 

that the defendant aided or abetted, 

counseled, commanded, induced, 

procured, or willfully caused. The 

government must make a prima facie 

showing that an offense of conviction is 

a ‘crime of violence’ only by using the 

limited list of sources of information, 

commonly referred to as the ‘Shepard 

documents,’ that Supreme Court 

jurisprudence has determined is 

permissible to determine whether a 

conviction fits within the definition of 

a particular category of crimes.’’. 

The Commentary to § 2K1.3 captioned 

‘‘Application Notes’’ is amended in 

Note 2 by striking the following: 

‘‘For purposes of this guideline: 

‘Controlled substance offense’ has the 

meaning given that term in § 4B1.2(b) 

and Application Note 1 of the 

Commentary to § 4B1.2 (Definitions of 

Terms Used in Section 4B1.1). 

‘Crime of violence’ has the meaning 

given that term in § 4B1.2(a) and 

Application Note 1 of the Commentary 

to § 4B1.2. 

‘Felony conviction’ means a prior 

adult federal or state conviction for an 

offense punishable by death or 

imprisonment for a term exceeding one 

year, regardless of whether such offense 

is specifically designated as a felony 

and regardless of the actual sentence 

imposed. A conviction for an offense 

committed at age eighteen years or older 

is an adult conviction. A conviction for 

an offense committed prior to age 

eighteen years is an adult conviction if 

it is classified as an adult conviction 

under the laws of the jurisdiction in 

which the defendant was convicted 

(e.g., a federal conviction for an offense 

committed prior to the defendant’s 

eighteenth birthday is an adult 

conviction if the defendant was 

expressly proceeded against as an 

adult).’’; 

and inserting the following: 

‘‘Definitions for Purposes of 

Subsections (a)(1) and (a)(2).— 

(A) Crime of Violence.— 

(i) Definition.—‘Crime of violence’’ 

means any offense under federal or state 

law, punishable by imprisonment for a 

term exceeding one year, that (I) has as 

an element the use, attempted use, or 

threatened use of physical force against 

the person of another; or (II) is murder, 

voluntary manslaughter, kidnapping, 

aggravated assault, a forcible sex 

offense, robbery, arson, extortion, or the 

use or unlawful possession of a firearm 


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described in 26 U.S.C. 5845(a) or 

explosive material as defined in 18 

U.S.C. 841(c). 

(ii) Additional Considerations.— 

(I) The term ‘crime of violence’ 

includes the offenses of aiding and 

abetting, attempting to commit, or 

conspiring to commit any such offense. 

(II) ‘Forcible sex offense’ includes 

where consent to the conduct is not 

given or is not legally valid, such as 

where consent to the conduct is 

involuntary, incompetent, or coerced. 

The offenses of sexual abuse of a minor 

and statutory rape are included only if 

the sexual abuse of a minor or statutory 

rape was (aa) an offense described in 18 

U.S.C. 2241(c) or (bb) an offense under 

state law that would have been an 

offense under section 2241(c) if the 

offense had occurred within the special 

maritime and territorial jurisdiction of 

the United States. 

(III) ‘Extortion’ is obtaining something 

of value from another by the wrongful 

use of (aa) force, (bb) fear of physical 

injury, or (cc) threat of physical injury. 

(IV) ‘Robbery’ is the unlawful taking 

or obtaining of personal property from 

the person or in the presence of another, 

against his will, by means of actual or 

threatened force, or violence, or fear of 

injury, immediate or future, to his 

person or property, or property in his 

custody or possession, or the person or 

property of a relative or member of his 

family or of anyone in his company at 

the time of the taking or obtaining. The 

phrase ‘actual or threatened force’ refers 

to force that is sufficient to overcome a 

victim’s resistance. 

(V) A violation of 18 U.S.C. 924(c) or 

§ 929(a) is a ‘crime of violence’ if the 

offense of conviction established that 

the underlying offense was a ‘crime of 

violence’. (Note that in the case of a 

prior 18 U.S.C. 924(c) or § 929(a) 

conviction, if the defendant also was 

convicted of the underlying offense, the 

sentences for the two prior convictions 

will be treated as a single sentence 

under § 4A1.2 (Definitions and 

Instructions for Computing Criminal 

History).) 

(VI) In determining whether an 

offense is a crime of violence, the 

offense of conviction (i.e., the conduct 

of which the defendant was convicted) 

is the focus of inquiry. 

(B) Controlled Substance Offense.— 

(i) Definition.—‘Controlled substance 

offense’ means an offense under federal 

or state law, punishable by 

imprisonment for a term exceeding one 

year, that (I) prohibits the manufacture, 

import, export, distribution, or 

dispensing of a controlled substance (or 

a counterfeit substance) or the 

possession of a controlled substance (or 

a counterfeit substance) with intent to 

manufacture, import, export, distribute, 

or dispense; or (II) is an offense 

described in 46 U.S.C. 70503(a) or 

§ 70506(b). 

(ii) Additional Considerations.— 

(I) The term ‘controlled substance 

offense’ include the offenses of aiding 

and abetting, attempting to commit, or 

conspiring to commit any such offense. 

(II) Unlawfully possessing a listed 

chemical with intent to manufacture a 

controlled substance (21 U.S.C. 

841(c)(1)) is a ‘controlled substance 

offense.’ 

(III) Unlawfully possessing a 

prohibited flask or equipment with 

intent to manufacture a controlled 

substance (21 U.S.C. 843(a)(6)) is a 

‘controlled substance offense.’ 

(IV) Maintaining any place for the 

purpose of facilitating a drug offense (21 

U.S.C. 856) is a ‘controlled substance 

offense’ if the offense of conviction 

established that the underlying offense 

(the offense facilitated) was a ‘controlled 

substance offense.’ 

(V) Using a communications facility 

in committing, causing, or facilitating a 

drug offense (21 U.S.C. 843(b)) is a 

‘controlled substance offense’ if the 

offense of conviction established that 

the underlying offense (the offense 

committed, caused, or facilitated) was a 

‘controlled substance offense.’ 

(VI) A violation of 18 U.S.C. 924(c) or 

§ 929(a) is a ‘controlled substance 

offense’ if the offense of conviction 

established that the underlying offense 

was a ‘controlled substance offense.’ 

(Note that in the case of a prior 18 

U.S.C. 924(c) or § 929(a) conviction, if 

the defendant also was convicted of the 

underlying offense, the sentences for the 

two prior convictions will be treated as 

a single sentence under § 4A1.2 

(Definitions and Instructions for 

Computing Criminal History).) 

(VII) In determining whether an 

offense is a controlled substance 

offense, the offense of conviction (i.e., 

the conduct of which the defendant was 

convicted) is the focus of inquiry. 

(C) Felony Conviction.—‘Felony 

conviction’ means a prior adult federal 

or state conviction for an offense 

punishable by death or imprisonment 

for a term exceeding one year, regardless 

of whether such offense is specifically 

designated as a felony and regardless of 

the actual sentence imposed. A 

conviction for an offense committed at 

age eighteen years or older is an adult 

conviction. A conviction for an offense 

committed prior to age eighteen years is 

an adult conviction if it is classified as 

an adult conviction under the laws of 

the jurisdiction in which the defendant 

was convicted (e.g., a federal conviction 

for an offense committed prior to the 

defendant’s eighteenth birthday is an 

adult conviction if the defendant was 

expressly proceeded against as an 

adult).’’. 

The Commentary to § 2K2.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 1 by striking the following: 

’’ ‘Controlled substance offense’ has 

the meaning given that term in 

§ 4B1.2(b) and Application Note 1 of the 

Commentary to § 4B1.2 (Definitions of 

Terms Used in Section 4B1.1). 

‘Crime of violence’ has the meaning 

given that term in § 4B1.2(a) and 

Application Note 1 of the Commentary 

to § 4B1.2.’’; 

by redesignating Notes 3 through 14 

as Notes 4 through 15, respectively; 

by inserting after Note 2 the following 

new Note 3: 

‘‘3. ‘Crime of Violence’ and 

‘Controlled Substance Offense’.— 

(A) Crime of Violence.— 

(i) Definition.—‘Crime of violence’ 

means any offense under federal or state 

law, punishable by imprisonment for a 

term exceeding one year, that (I) has as 

an element the use, attempted use, or 

threatened use of physical force against 

the person of another; or (II) is murder, 

voluntary manslaughter, kidnapping, 

aggravated assault, a forcible sex 

offense, robbery, arson, extortion, or the 

use or unlawful possession of a firearm 

described in 26 U.S.C. 5845(a) or 

explosive material as defined in 18 

U.S.C. 841(c). 

(ii) Additional Considerations.— 

(I) The term ‘crime of violence’ 

includes the offenses of aiding and 

abetting, attempting to commit, or 

conspiring to commit any such offense. 

(II) ‘Forcible sex offense’ includes 

where consent to the conduct is not 

given or is not legally valid, such as 

where consent to the conduct is 

involuntary, incompetent, or coerced. 

The offenses of sexual abuse of a minor 

and statutory rape are included only if 

the sexual abuse of a minor or statutory 

rape was (aa) an offense described in 18 

U.S.C. 2241(c) or (bb) an offense under 

state law that would have been an 

offense under section 2241(c) if the 

offense had occurred within the special 

maritime and territorial jurisdiction of 

the United States. 

(III) ‘Extortion’ is obtaining something 

of value from another by the wrongful 

use of (aa) force, (bb) fear of physical 

injury, or (cc) threat of physical injury. 

(IV) ‘Robbery’ is the unlawful taking 

or obtaining of personal property from 

the person or in the presence of another, 

against his will, by means of actual or 

threatened force, or violence, or fear of 

injury, immediate or future, to his 

person or property, or property in his 


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Federal Register / Vol. 90, No. 1 / Thursday, January 2, 2025 / Notices 135 

custody or possession, or the person or 

property of a relative or member of his 

family or of anyone in his company at 

the time of the taking or obtaining. The 

phrase ‘actual or threatened force’ refers 

to force that is sufficient to overcome a 

victim’s resistance. 

(V) A violation of 18 U.S.C. 924(c) or 

§ 929(a) is a ‘crime of violence’ if the 

offense of conviction established that 

the underlying offense was a ‘crime of 

violence.’ (Note that in the case of a 

prior 18 U.S.C. 924(c) or § 929(a) 

conviction, if the defendant also was 

convicted of the underlying offense, the 

sentences for the two prior convictions 

will be treated as a single sentence 

under § 4A1.2 (Definitions and 

Instructions for Computing Criminal 

History).) 

(VI) In determining whether an 

offense is a crime of violence, the 

offense of conviction (i.e., the conduct 

of which the defendant was convicted) 

is the focus of inquiry. 

(B) Controlled Substance Offense.— 

(i) Definition.—‘Controlled substance 

offense’ means an offense under federal 

or state law, punishable by 

imprisonment for a term exceeding one 

year, that (I) prohibits the manufacture, 

import, export, distribution, or 

dispensing of a controlled substance (or 

a counterfeit substance) or the 

possession of a controlled substance (or 

a counterfeit substance) with intent to 

manufacture, import, export, distribute, 

or dispense; or (II) is an offense 

described in 46 U.S.C. 70503(a) or 

§ 70506(b). 

(ii) Additional Considerations.— 

(I) The term ‘controlled substance 

offense’ include the offenses of aiding 

and abetting, attempting to commit, or 

conspiring to commit any such offense. 

(II) Unlawfully possessing a listed 

chemical with intent to manufacture a 

controlled substance (21 U.S.C. 

841(c)(1)) is a ‘controlled substance 

offense.’ 

(III) Unlawfully possessing a 

prohibited flask or equipment with 

intent to manufacture a controlled 

substance (21 U.S.C. 843(a)(6)) is a 

‘controlled substance offense.’ 

(IV) Maintaining any place for the 

purpose of facilitating a drug offense (21 

U.S.C. 856) is a ‘controlled substance 

offense’ if the offense of conviction 

established that the underlying offense 

(the offense facilitated) was a ‘controlled 

substance offense.’ 

(V) Using a communications facility 

in committing, causing, or facilitating a 

drug offense (21 U.S.C. 843(b)) is a 

‘controlled substance offense’ if the 

offense of conviction established that 

the underlying offense (the offense 

committed, caused, or facilitated) was a 

‘controlled substance offense.’ 

(VI) A violation of 18 U.S.C. 924(c) or 

§ 929(a) is a ‘controlled substance 

offense’ if the offense of conviction 

established that the underlying offense 

was a ‘controlled substance offense.’ 

(Note that in the case of a prior 18 

U.S.C. 924(c) or § 929(a) conviction, if 

the defendant also was convicted of the 

underlying offense, the sentences for the 

two prior convictions will be treated as 

a single sentence under § 4A1.2 

(Definitions and Instructions for 

Computing Criminal History).) 

(VII) In determining whether an 

offense is a controlled substance 

offense, the offense of conviction (i.e., 

the conduct of which the defendant was 

convicted) is the focus of inquiry.’’; 

in Note 12 (as so redesignated) by 

striking ‘‘see Application Note 7’’ and 

inserting ‘‘see Application Note 8’’; 

and in Note 14 (as so redesignated) by 

striking the following: 

’’ ‘Crime of violence’ and ‘controlled 

substance offense’ have the meaning 

given those terms in § 4B1.2 (Definitions 

of Terms Used in Section 4B1.1).’’. 

The Commentary to § 2S1.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 1 by striking the following: 

’’ ‘Crime of violence’ has the meaning 

given that term in subsection (a)(1) of 

§ 4B1.2 (Definitions of Terms Used in 

Section 4B1.1).’’; 

by redesignating Notes 4, 5, and 6 as 

Notes 5, 6, and 7; 

and by inserting after Note 3 the 

following new Note 4: 

‘‘4. ‘Crime of Violence’ under 

Subsection (b)(1).— 

(A) Definition.—For purposes of 

subsection (b)(1), ‘crime of violence’ 

means any offense under federal or state 

law, punishable by imprisonment for a 

term exceeding one year, that has as an 

element the use, attempted use, or 

threatened use of physical force against 

the person of another. 

(B) Additional Considerations.— 

(i) The term ‘crime of violence’ 

includes the offenses of aiding and 

abetting, attempting to commit, or 

conspiring to commit any such offense. 

(ii) A violation of 18 U.S.C. 924(c) or 

§ 929(a) is a ‘crime of violence’ if the 

offense of conviction established that 

the underlying offense was a ‘crime of 

violence.’ (Note that in the case of a 

prior 18 U.S.C. 924(c) or § 929(a) 

conviction, if the defendant also was 

convicted of the underlying offense, the 

sentences for the two prior convictions 

will be treated as a single sentence 

under § 4A1.2 (Definitions and 

Instructions for Computing Criminal 

History).) 

(iii) In determining whether an 

offense is a crime of violence, the 

offense of conviction (i.e., the conduct 

of which the defendant was convicted) 

is the focus of inquiry.’’. 

The Commentary to § 4A1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 4 by striking ’’ ‘crime of violence’ 

has the meaning given that term in 

§ 4B1.2(a). See § 4A1.2(p)’’ and inserting 

’’ ‘crime of violence’ has the meaning 

given that term in § 4A1.2(p)’’. 

Section 4A1.2(p) is amended by 

striking the following: 

‘‘For the purposes of § 4A1.1(d), the 

definition of ‘crime of violence’ is that 

set forth in § 4B1.2(a).’’; 

and inserting the following: 

‘‘(1) Definition.—For purposes 

§ 4A1.1(d), ‘crime of violence’ means 

any offense under federal or state law, 

punishable by imprisonment for a term 

exceeding one year, that (A) has as an 

element the use, attempted use, or 

threatened use of physical force against 

the person of another; or (B) is murder, 

voluntary manslaughter, kidnapping, 

aggravated assault, a forcible sex 

offense, robbery, arson, extortion, or the 

use or unlawful possession of a firearm 

described in 26 U.S.C. 5845(a) or 

explosive material as defined in 18 

U.S.C. 841(c). 

(2) Additional Considerations.— 

(A) The term ‘crime of violence’ 

includes the offenses of aiding and 

abetting, attempting to commit, or 

conspiring to commit any such offense. 

(B) ‘Forcible sex offense’ includes 

where consent to the conduct is not 

given or is not legally valid, such as 

where consent to the conduct is 

involuntary, incompetent, or coerced. 

The offenses of sexual abuse of a minor 

and statutory rape are included only if 

the sexual abuse of a minor or statutory 

rape was (i) an offense described in 18 

U.S.C. 2241(c) or (ii) an offense under 

state law that would have been an 

offense under section 2241(c) if the 

offense had occurred within the special 

maritime and territorial jurisdiction of 

the United States. 

(C) ‘Extortion’ is obtaining something 

of value from another by the wrongful 

use of (i) force, (ii) fear of physical 

injury, or (iii) threat of physical injury. 

(D) ‘Robbery’ is the unlawful taking or 

obtaining of personal property from the 

person or in the presence of another, 

against his will, by means of actual or 

threatened force, or violence, or fear of 

injury, immediate or future, to his 

person or property, or property in his 

custody or possession, or the person or 

property of a relative or member of his 

family or of anyone in his company at 

the time of the taking or obtaining. The 

phrase ‘actual or threatened force’ refers 

to force that is sufficient to overcome a 

victim’s resistance. 


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(E) A violation of 18 U.S.C. 924(c) or 

§ 929(a) is a ‘crime of violence’ if the 

offense of conviction established that 

the underlying offense was a ‘crime of 

violence.’ (Note that in the case of a 

prior 18 U.S.C. 924(c) or § 929(a) 

conviction, if the defendant also was 

convicted of the underlying offense, the 

sentences for the two prior convictions 

will be treated as a single sentence 

under § 4A1.2 (Definitions and 

Instructions for Computing Criminal 

History).) 

(F) In determining whether an offense 

is a crime of violence, the offense of 

conviction (i.e., the conduct of which 

the defendant was convicted) is the 

focus of inquiry.’’. 

Section 4B1.4(b)(3) is amended by 

striking ‘‘either a crime of violence, as 

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

substance offense, as defined in 

§ 4B1.2(b)’’ and inserting ‘‘either a crime 

of violence or a controlled substance 

offense’’. 

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

striking ‘‘either a crime of violence, as 

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

substance offense, as defined in 

§ 4B1.2(b)’’ and inserting ‘‘either a crime 

of violence or a controlled substance 

offense’’. 

The Commentary to § 4B1.4 captioned 

‘‘Application Notes’’ is amended by 

inserting at the end the following new 

Note 3: 

‘‘3. ‘Crime of Violence’ and 

‘Controlled Substance Offense’.— 

(A) Crime of Violence.— 

(i) Definition.—‘Crime of violence’ 

means any offense under federal or state 

law, punishable by imprisonment for a 

term exceeding one year, that (I) has as 

an element the use, attempted use, or 

threatened use of physical force against 

the person of another; or (II) is murder, 

voluntary manslaughter, kidnapping, 

aggravated assault, a forcible sex 

offense, robbery, arson, extortion, or the 

use or unlawful possession of a firearm 

described in 26 U.S.C. 5845(a) or 

explosive material as defined in 18 

U.S.C. 841(c). 

(ii) Additional Considerations.— 

(I) The term ‘crime of violence’ 

includes the offenses of aiding and 

abetting, attempting to commit, or 

conspiring to commit any such offense. 

(II) ‘Forcible sex offense’ includes 

where consent to the conduct is not 

given or is not legally valid, such as 

where consent to the conduct is 

involuntary, incompetent, or coerced. 

The offenses of sexual abuse of a minor 

and statutory rape are included only if 

the sexual abuse of a minor or statutory 

rape was (aa) an offense described in 18 

U.S.C. 2241(c) or (bb) an offense under 

state law that would have been an 

offense under section 2241(c) if the 

offense had occurred within the special 

maritime and territorial jurisdiction of 

the United States. 

(III) ‘Extortion’ is obtaining something 

of value from another by the wrongful 

use of (aa) force, (bb) fear of physical 

injury, or (cc) threat of physical injury. 

(IV) ‘Robbery’ is the unlawful taking 

or obtaining of personal property from 

the person or in the presence of another, 

against his will, by means of actual or 

threatened force, or violence, or fear of 

injury, immediate or future, to his 

person or property, or property in his 

custody or possession, or the person or 

property of a relative or member of his 

family or of anyone in his company at 

the time of the taking or obtaining. The 

phrase ‘actual or threatened force’ refers 

to force that is sufficient to overcome a 

victim’s resistance. 

(V) A violation of 18 U.S.C. 924(c) or 

§ 929(a) is a ‘crime of violence’ if the 

offense of conviction established that 

the underlying offense was a ‘crime of 

violence.’ (Note that in the case of a 

prior 18 U.S.C. 924(c) or § 929(a) 

conviction, if the defendant also was 

convicted of the underlying offense, the 

sentences for the two prior convictions 

will be treated as a single sentence 

under § 4A1.2 (Definitions and 

Instructions for Computing Criminal 

History).) 

(VI) In determining whether an 

offense is a crime of violence, the 

offense of conviction (i.e., the conduct 

of which the defendant was convicted) 

is the focus of inquiry. 

(B) Controlled Substance Offense.— 

(i) Definition.—‘Controlled substance 

offense’ means an offense under federal 

or state law, punishable by 

imprisonment for a term exceeding one 

year, that (I) prohibits the manufacture, 

import, export, distribution, or 

dispensing of a controlled substance (or 

a counterfeit substance) or the 

possession of a controlled substance (or 

a counterfeit substance) with intent to 

manufacture, import, export, distribute, 

or dispense; or (II) is an offense 

described in 46 U.S.C. 70503(a) or 

§ 70506(b). 

(ii) Additional Considerations.— 

(I) The term ‘controlled substance 

offense’ include the offenses of aiding 

and abetting, attempting to commit, or 

conspiring to commit any such offense. 

(II) Unlawfully possessing a listed 

chemical with intent to manufacture a 

controlled substance (21 U.S.C. 

841(c)(1)) is a ‘controlled substance 

offense.’ 

(III) Unlawfully possessing a 

prohibited flask or equipment with 

intent to manufacture a controlled 

substance (21 U.S.C. 843(a)(6)) is a 

‘controlled substance offense.’ 

(IV) Maintaining any place for the 

purpose of facilitating a drug offense (21 

U.S.C. 856) is a ‘controlled substance 

offense’ if the offense of conviction 

established that the underlying offense 

(the offense facilitated) was a ‘controlled 

substance offense.’ 

(V) Using a communications facility 

in committing, causing, or facilitating a 

drug offense (21 U.S.C. 843(b)) is a 

‘controlled substance offense’ if the 

offense of conviction established that 

the underlying offense (the offense 

committed, caused, or facilitated) was a 

‘controlled substance offense.’ 

(VI) A violation of 18 U.S.C. 924(c) or 

§ 929(a) is a ‘controlled substance 

offense’ if the offense of conviction 

established that the underlying offense 

was a ‘controlled substance offense.’ 

(Note that in the case of a prior 18 

U.S.C. 924(c) or § 929(a) conviction, if 

the defendant also was convicted of the 

underlying offense, the sentences for the 

two prior convictions will be treated as 

a single sentence under § 4A1.2 

(Definitions and Instructions for 

Computing Criminal History).) 

(VII) In determining whether an 

offense is a controlled substance 

offense, the offense of conviction (i.e., 

the conduct of which the defendant was 

convicted) is the focus of inquiry.’’. 

The Commentary to § 5K2.17 

captioned ‘‘Application Notes’’ is 

amended— 

in the caption by striking ‘‘Note’’ and 

inserting ‘‘Notes’’; 

by striking Note 1 as follows: 

‘‘1. ‘Crime of violence’ and ‘controlled 

substance offense’ are defined in § 4B1.2 

(Definitions of Terms Used in Section 

4B1.1).’’; 

and by inserting the following new 

Notes 1 and 2: 

‘‘1. Crime of Violence.— 

(A) Definition.—‘Crime of violence’ 

means any offense under federal or state 

law, punishable by imprisonment for a 

term exceeding one year, that (i) has as 

an element the use, attempted use, or 

threatened use of physical force against 

the person of another; or (ii) is murder, 

voluntary manslaughter, kidnapping, 

aggravated assault, a forcible sex 

offense, robbery, arson, extortion, or the 

use or unlawful possession of a firearm 

described in 26 U.S.C. 5845(a) or 

explosive material as defined in 18 

U.S.C. 841(c). 

(B) Additional Considerations.— 

(i) The term ‘crime of violence’ 

includes the offenses of aiding and 

abetting, attempting to commit, or 

conspiring to commit any such offense. 

(ii) ‘Forcible sex offense’ includes 

where consent to the conduct is not 


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Federal Register / Vol. 90, No. 1 / Thursday, January 2, 2025 / Notices 137 

given or is not legally valid, such as 

where consent to the conduct is 

involuntary, incompetent, or coerced. 

The offenses of sexual abuse of a minor 

and statutory rape are included only if 

the sexual abuse of a minor or statutory 

rape was (I) an offense described in 18 

U.S.C. 2241(c) or (II) an offense under 

state law that would have been an 

offense under section 2241(c) if the 

offense had occurred within the special 

maritime and territorial jurisdiction of 

the United States. 

(iii) ‘Extortion’ is obtaining something 

of value from another by the wrongful 

use of (I) force, (II) fear of physical 

injury, or (III) threat of physical injury. 

(iv) ‘Robbery’ is the unlawful taking 

or obtaining of personal property from 

the person or in the presence of another, 

against his will, by means of actual or 

threatened force, or violence, or fear of 

injury, immediate or future, to his 

person or property, or property in his 

custody or possession, or the person or 

property of a relative or member of his 

family or of anyone in his company at 

the time of the taking or obtaining. The 

phrase ‘actual or threatened force’ refers 

to force that is sufficient to overcome a 

victim’s resistance. 

(v) A violation of 18 U.S.C. 924(c) or 

§ 929(a) is a ‘crime of violence’ if the 

offense of conviction established that 

the underlying offense was a ‘crime of 

violence.’ (Note that in the case of a 

prior 18 U.S.C. 924(c) or § 929(a) 

conviction, if the defendant also was 

convicted of the underlying offense, the 

sentences for the two prior convictions 

will be treated as a single sentence 

under § 4A1.2 (Definitions and 

Instructions for Computing Criminal 

History).) 

(vi) In determining whether an offense 

is a crime of violence, the offense of 

conviction (i.e., the conduct of which 

the defendant was convicted) is the 

focus of inquiry. 

2. Controlled Substance Offense.— 

(A) Definition.—‘Controlled substance 

offense’ means an offense under federal 

or state law, punishable by 

imprisonment for a term exceeding one 

year, that (i) prohibits the manufacture, 

import, export, distribution, or 

dispensing of a controlled substance (or 

a counterfeit substance) or the 

possession of a controlled substance (or 

a counterfeit substance) with intent to 

manufacture, import, export, distribute, 

or dispense; or (ii) is an offense 

described in 46 U.S.C. 70503(a) or 

§ 70506(b). 

(B) Additional Considerations.— 

(i) The term ‘controlled substance 

offense’ include the offenses of aiding 

and abetting, attempting to commit, or 

conspiring to commit any such offense. 

(ii) Unlawfully possessing a listed 

chemical with intent to manufacture a 

controlled substance (21 U.S.C. 

841(c)(1)) is a ‘controlled substance 

offense.’ 

(iii) Unlawfully possessing a 

prohibited flask or equipment with 

intent to manufacture a controlled 

substance (21 U.S.C. 843(a)(6)) is a 

‘controlled substance offense.’ 

(iv) Maintaining any place for the 

purpose of facilitating a drug offense (21 

U.S.C. 856) is a ‘controlled substance 

offense’ if the offense of conviction 

established that the underlying offense 

(the offense facilitated) was a ‘controlled 

substance offense.’ 

(v) Using a communications facility in 

committing, causing, or facilitating a 

drug offense (21 U.S.C. 843(b)) is a 

‘controlled substance offense’ if the 

offense of conviction established that 

the underlying offense (the offense 

committed, caused, or facilitated) was a 

‘controlled substance offense.’ 

(vi) A violation of 18 U.S.C. 924(c) or 

§ 929(a) is a ‘controlled substance 

offense’ if the offense of conviction 

established that the underlying offense 

was a ‘controlled substance offense.’ 

(Note that in the case of a prior 18 

U.S.C. 924(c) or § 929(a) conviction, if 

the defendant also was convicted of the 

underlying offense, the sentences for the 

two prior convictions will be treated as 

a single sentence under § 4A1.2 

(Definitions and Instructions for 

Computing Criminal History).) 

(vii) In determining whether an 

offense is a controlled substance 

offense, the offense of conviction (i.e., 

the conduct of which the defendant was 

convicted) is the focus of inquiry.’’. 

The Commentary to § 7B1.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 2 by striking the following: 

‘‘ ‘Crime of violence’ is defined in 

§ 4B1.2 (Definitions of Terms Used in 

Section 4B1.1). See § 4B1.2(a) and 

Application Note 1 of the Commentary 

to § 4B1.2.’’; 

and inserting the following: 

‘‘Crime of Violence.— 

(A) Definition.—‘Crime of violence’ 

means any offense under federal or state 

law, punishable by imprisonment for a 

term exceeding one year, that (i) has as 

an element the use, attempted use, or 

threatened use of physical force against 

the person of another; or (ii) is murder, 

voluntary manslaughter, kidnapping, 

aggravated assault, a forcible sex 

offense, robbery, arson, extortion, or the 

use or unlawful possession of a firearm 

described in 26 U.S.C. 5845(a) or 

explosive material as defined in 18 

U.S.C. 841(c). 

(B) Additional Considerations.— 

(i) The term ‘crime of violence’ 

includes the offenses of aiding and 

abetting, attempting to commit, or 

conspiring to commit any such offense. 

(ii) ‘Forcible sex offense’ includes 

where consent to the conduct is not 

given or is not legally valid, such as 

where consent to the conduct is 

involuntary, incompetent, or coerced. 

The offenses of sexual abuse of a minor 

and statutory rape are included only if 

the sexual abuse of a minor or statutory 

rape was (I) an offense described in 18 

U.S.C. 2241(c) or (II) an offense under 

state law that would have been an 

offense under section 2241(c) if the 

offense had occurred within the special 

maritime and territorial jurisdiction of 

the United States. 

(iii) ‘Extortion’ is obtaining something 

of value from another by the wrongful 

use of (I) force, (II) fear of physical 

injury, or (III) threat of physical injury. 

(iv) ‘Robbery’ is the unlawful taking 

or obtaining of personal property from 

the person or in the presence of another, 

against his will, by means of actual or 

threatened force, or violence, or fear of 

injury, immediate or future, to his 

person or property, or property in his 

custody or possession, or the person or 

property of a relative or member of his 

family or of anyone in his company at 

the time of the taking or obtaining. The 

phrase ‘actual or threatened force’ refers 

to force that is sufficient to overcome a 

victim’s resistance. 

(v) A violation of 18 U.S.C. 924(c) or 

§ 929(a) is a ‘crime of violence’ if the 

offense of conviction established that 

the underlying offense was a ‘crime of 

violence.’ (Note that in the case of a 

prior 18 U.S.C. 924(c) or § 929(a) 

conviction, if the defendant also was 

convicted of the underlying offense, the 

sentences for the two prior convictions 

will be treated as a single sentence 

under § 4A1.2 (Definitions and 

Instructions for Computing Criminal 

History).) 

(vi) In determining whether an offense 

is a crime of violence, the offense of 

conviction (i.e., the conduct of which 

the defendant was convicted) is the 

focus of inquiry.’’; 

and in Note 3 by striking the 

following: 

‘‘ ‘Controlled substance offense’ is 

defined in § 4B1.2 (Definitions of Terms 

Used in Section 4B1.1). See § 4B1.2(b) 

and Application Note 1 of the 

Commentary to § 4B1.2.’’; 

and inserting the following: 

‘‘Controlled Substance Offense.— 

(A) Definition.—‘Controlled substance 

offense’ means an offense under federal 

or state law, punishable by 

imprisonment for a term exceeding one 

year, that (i) prohibits the manufacture, 


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import, export, distribution, or 

dispensing of a controlled substance (or 

a counterfeit substance) or the 

possession of a controlled substance (or 

a counterfeit substance) with intent to 

manufacture, import, export, distribute, 

or dispense; or (ii) is an offense 

described in 46 U.S.C. 70503(a) or 

§ 70506(b). 

(B) Additional Considerations.— 

(i) The term ‘controlled substance 

offense’ include the offenses of aiding 

and abetting, attempting to commit, or 

conspiring to commit any such offense. 

(ii) Unlawfully possessing a listed 

chemical with intent to manufacture a 

controlled substance (21 U.S.C. 

841(c)(1)) is a ‘controlled substance 

offense.’ 

(iii) Unlawfully possessing a 

prohibited flask or equipment with 

intent to manufacture a controlled 

substance (21 U.S.C. 843(a)(6)) is a 

‘controlled substance offense.’ 

(iv) Maintaining any place for the 

purpose of facilitating a drug offense (21 

U.S.C. 856) is a ‘controlled substance 

offense’ if the offense of conviction 

established that the underlying offense 

(the offense facilitated) was a ‘controlled 

substance offense.’ 

(v) Using a communications facility in 

committing, causing, or facilitating a 

drug offense (21 U.S.C. 843(b)) is a 

‘controlled substance offense’ if the 

offense of conviction established that 

the underlying offense (the offense 

committed, caused, or facilitated) was a 

‘controlled substance offense.’ 

(vi) A violation of 18 U.S.C. 924(c) or 

§ 929(a) is a ‘controlled substance 

offense’ if the offense of conviction 

established that the underlying offense 

was a ‘controlled substance offense.’ 

(Note that in the case of a prior 18 

U.S.C. 924(c) or § 929(a) conviction, if 

the defendant also was convicted of the 

underlying offense, the sentences for the 

two prior convictions will be treated as 

a single sentence under § 4A1.2 

(Definitions and Instructions for 

Computing Criminal History).) 

(vii) In determining whether an 

offense is a controlled substance 

offense, the offense of conviction (i.e., 

the conduct of which the defendant was 

convicted) is the focus of inquiry.’’. 

Issues for Comment 

1. As explained above, courts use the 

‘‘categorical approach’’ and the 

‘‘modified categorical approach,’’ as set 

forth in Supreme Court jurisprudence, 

to determine whether a conviction is a 

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

substance offense’’ for purposes of 

§ 4B1.2 (Definitions of Terms Used in 

Section 4B1.1). These Supreme Court 

cases, however, involved statutory 

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

than guideline provisions. 

The Commission seeks comment on 

whether determinations under the 

career offender guideline should use a 

different approach, such as the 

approach provided above, that permits 

the court to consider the defendant’s 

conduct underlying the offense of 

conviction for purposes of the ‘‘crime of 

violence’’ definition. What are the 

advantages and disadvantages of the 

‘‘categorical approach’’ as opposed to 

the approach set forth in the proposed 

amendment above? 

2. The proposed amendment provides 

that courts may consider the full scope 

of the defendant’s conduct under 

subsection (a)(1)(A) of § 1B1.3 (Relevant 

Conduct) (i.e., ‘‘all acts and omissions 

committed, aided, abetted, counseled, 

commanded, induced, procured, or 

willfully caused by the defendant . . . 

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’’) for 

purposes of the ‘‘crime of violence’’ 

definition. Should the focus of the 

inquiry be limited to the conduct that 

formed the basis of the conviction? If 

not, should the Commission limit the 

consideration of the defendant’s 

conduct in some other way? If so, how 

should the Commission set forth such 

limitation? Should the Commission 

limit the consideration of the 

defendant’s conduct only to such acts 

and omissions that occurred ‘‘during the 

commission of the offense of 

conviction’’ and exclude conduct ‘‘in 

preparation for that offense, or in the 

course of attempting to avoid detection 

or responsibility for that offense’’ or 

make any other changes? 

3. The proposed amendment would 

revise the definition of ‘‘controlled 

substance offense’’ in § 4B1.2 to exclude 

state drug offenses by listing specific 

federal statutes relating to drug offenses. 

The proposed amendment lists the 

federal statutes that are controlled 

substance offenses under the current 

definition to maintain the status quo. 

The federal drug trafficking statutes that 

do not appear in brackets are 

specifically referenced in the career 

offender directive at 28 U.S.C. 994(h). 

Are there federal drug offenses that are 

covered by the proposed amendment 

but should not be? Are there federal 

drug offenses that are not covered by the 

proposed amendment but should be? 

The Commission also seeks comment 

on whether, instead of excluding state 

drug offenses, it should limit the 

definition of ‘‘controlled substance 

offense’’ in some other way. For 

example, should the Commission keep 

the current definition of ‘‘controlled 

substance offense’’ and limit qualifying 

prior convictions to only convictions 

that received a certain number of 

criminal history points or a certain 

length of sentence imposed or served? If 

so, how should the Commission set that 

limit and why? 

4. The definition of ‘‘crime of 

violence’’ set forth in the proposed 

amendment above includes a ‘‘force 

clause’’ proposed at § 4B1.2(b)(1)(A). 

The provision closely tracks the 

language of current § 4B1.2(a)(1) but 

would incorporate a parenthetical insert 

defining the term ‘‘physical force’’ as 

‘‘force capable of causing physical pain 

or injury to another person.’’ The 

Commission seeks comment on whether 

this definition is appropriate. 

The definition of ‘‘crime of violence’’ 

also includes provisions relating to 

conduct that would constitute certain 

specific offenses that currently qualify 

as a ‘‘crime of violence,’’ such forcible 

sex offenses, robbery, arson, and 

extortion. The Commission seeks 

comment on whether the force clause 

set forth in proposed § 4B1.2(b)(1)(A) 

would be sufficient to cover the other 

types of conduct specifically listed in 

the ‘‘crime of violence’’ definition. 

Specifically, the Commission seeks 

comment on whether the force clause 

would cover conduct constituting 

robbery and extortion offenses. 

5. The definition of ‘‘crime of 

violence’’ includes a provision relating 

to forcible sexual acts at proposed 

§ 4B1.2(b)(1)(B). The Commission seeks 

comment generally on whether the 

scope of this provision for purposes of 

the ‘‘crime of violence’’ definition is 

appropriate. 

6. The ‘‘crime of violence’’ definition 

includes a provision that would cover 

conduct constituting an arson offense at 

proposed § 4B1.2(b)(1)(E). The 

Commission seeks comment generally 

on whether the proposed provision is 

appropriate. 

7. The Commission seeks comment on 

whether the definition of ‘‘crime of 

violence’’ should still address the 

offenses of attempting to commit a 

substantive offense and conspiracy to 

commit a substantive offense. Should 

the Commission provide additional 

requirements or guidance to address 

these types of offenses? 

8. The proposed amendment would 

require the government to make a prima 

facie showing that an offense is a ‘‘crime 

of violence’’ only by using a specific list 

of sources of information from the 

record. The sources of information that 

do not appear within brackets in the 

proposed amendment are specifically 


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Federal Register / Vol. 90, No. 1 / Thursday, January 2, 2025 / Notices 139 

identified in Shepard v. United States, 

544 U.S. 13 (2005), for use in the 

modified categorical approach. The 

sources of information listed within 

brackets are comparable judicial 

documents identified in subsequent 

case law for the same purpose. 

The Commission seeks comment on 

whether it should limit the sources of 

information that the government needs 

to make a prima facie showing that an 

offense of conviction is a ‘‘crime of 

violence.’’ Should the Commission list 

specific sources or types of sources that 

courts may consider in addition to the 

sources listed in the proposed 

amendment? If so, what documents or 

types of information should be included 

in this list? Are there any documents or 

types of information that should be 

excluded? 

9. The proposed amendment sets forth 

three options for setting a minimum 

sentence length requirement for a prior 

conviction to qualify as a ‘‘crime of 

violence’’ or ‘‘controlled substance 

offense.’’ The Commission seeks 

comment on whether including a 

minimum sentence length requirement 

for prior offenses to qualify as a ‘‘crime 

of violence’’ or ‘‘controlled substance 

offense’’ is consistent with the 

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

994(h). The Commission also seeks 

comment on each of these options and 

suboptions. Should the Commission 

differentiate between ‘‘crimes of 

violence’’ and ‘‘controlled substance 

offenses’’ in setting a minimum 

sentence length requirement? 

10. As indicated above, several 

guidelines use the terms ‘‘crime of 

violence’’ and ‘‘controlled substance 

offense’’ and define these terms by 

making specific reference to § 4B1.2. See 

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), § 2S1.1 (Laundering of 

Monetary Instruments; Engaging in 

Monetary Transactions in Property 

Derived from Unlawful Activity), 

§ 4A1.2 (Definitions and Instructions for 

Computing Criminal History), § 4B1.4 

(Armed Career Criminal), § 5K2.17 

(Semiautomatic Firearms Capable of 

Accepting Large Capacity Magazine 

(Policy Statement)), and § 7B1.1 

(Classification of Violations (Policy 

Statement)). 

The proposed amendment would 

maintain the status quo by amending 

the Commentary to these guidelines to 

incorporate the relevant part or parts of 

§ 4B1.2. The Commission seeks 

comment on whether this is the 

appropriate approach or, in the 

alternative, whether any or all of these 

guidelines should continue to define the 

terms ‘‘crime of violence’’ and 

‘‘controlled substance offense’’ by 

making specific references to § 4B1.2 if 

the Commission were to promulgate the 

proposed amendment making changes 

to the definitions contained in § 4B1.2. 

Should the Commission consider 

moving these definitions from the 

commentary of these guidelines to the 

guidelines themselves? 

2. Firearms Offenses 

Synopsis of Proposed Amendment: 

The proposed amendment contains two 

parts (Part A and Part B) addressing 

offenses involving firearms. The 

Commission is considering whether to 

promulgate either or both parts, as they 

are not mutually exclusive. 

Part A of the proposed amendment 

addresses the application of § 2K2.1 

(Unlawful Receipt, Possession, or 

Transportation of Firearms or 

Ammunition; Prohibited Transactions 

Involving Firearms or Ammunition) to 

machinegun conversion devices 

(MCDs), which are designed to convert 

weapons to fully automatic firearms. 

Issues for comment are also provided. 

Part B of the proposed amendment 

establishes a mens rea requirement for 

the enhancements under § 2K2.1(b)(4) 

for stolen firearms and firearms with 

modified serial numbers. An issue for 

comment is also provided. 

(A) Machinegun Conversion Devices 

(MCDs) 

Synopsis of Proposed Amendment: 

Section 2K2.1 (Unlawful Receipt, 

Possession, or Transportation of 

Firearms or Ammunition; Prohibited 

Transactions Involving Firearms or 

Ammunition) employs, for different 

purposes, two distinct definitions of the 

term ‘‘firearm’’ drawn from separate 

statutory sources: 21 U.S.C. 921(a)(3) 

(‘‘Gun Control Act (GCA) definition of 

firearm’’) and 26 U.S.C. 5845(a) 

(‘‘National Firearms Act (NFA) 

definition of firearm’’). One difference 

between the definitions is the inclusion 

of machinegun conversion devices 

(MCDs). Commonly referred to as 

‘‘Glock switches’’ or ‘‘auto sears,’’ MCDs 

are devices designed to convert 

weapons into fully automatic firearms. 

The NFA definition of firearm includes 

‘‘machineguns,’’ 26 U.S.C. 5845(a), and 

the definition of ‘‘machinegun’’ 

includes ‘‘any part designed and 

intended solely and exclusively, or 

combination of parts designed and 

intended, for use in converting a 

weapon into a machinegun,’’ 26 U.S.C. 

5845(b). Therefore, MCDs fall within the 

NFA definition of firearm. However, the 

GCA definition of firearm does not 

encompass MCDs. See 21 U.S.C. 

921(a)(3). 

Section 2K2.1 uses the NFA definition 

of firearm for certain enhanced base 

offense levels. See, e.g., USSG 

§ 2K2.1(a)(1), (3), (4), and (5). Therefore, 

those enhanced base offense levels 

apply to offenses involving MCDs. 

However, the remainder of § 2K2.1, 

including the specific offense 

characteristics and the cross reference, 

uses the GCA definition of firearm. 

USSG § 2K2.1, comment. (n.1). 

Therefore, MCDs do not trigger § 2K2.1’s 

specific offense characteristics or the 

cross reference. For example, an 

individual convicted under 18 U.S.C. 

922(o) for possessing five MCDs would 

receive an enhanced base offense level 

because the offense involved a firearm 

described in 26 U.S.C. 5845(a). See 

USSG § 2K2.1(a)(5). However, this 

individual would not receive an 

enhancement under § 2K2.1(b)(1) for the 

number of firearms involved in the 

offense because the MCDs are not 

firearms under the GCA definition. See 

USSG § 2K2.1(b)(1). 

Commenters have expressed concern 

that § 2K2.1 insufficiently addresses 

offenses involving MCDs. Commenters 

have described a significant recent 

proliferation of MCDs and pointed out 

the increased danger to bystanders and 

law enforcement officials when a 

weapon is equipped with an MCD 

because those weapons can fire more 

quickly and are more difficult to 

control. 

Part A of the proposed amendment 

would amend § 2K2.1 to address these 

concerns. 

The proposed amendment provides 

two options to amend § 2K2.1. 

Option 1 would amend the definition 

of ‘‘firearm’’ applicable to § 2K2.1 to 

include any firearm described in 18 

U.S.C. 921(a)(3) (i.e., the GCA definition 

of firearm) or 26 U.S.C. 5845(a) (i.e., the 

NFA definition of firearm). It would 

move the definition from the 

Commentary to the guideline itself in 

newly created subsection (d). 

Option 2 would expand the 

application of the following subsections, 

which now apply only to GCA firearms, 

so that those subsections would also 

apply to NFA firearms: 

• Subsection (b)(1), which provides 

an enhancement based on the number of 

firearms involved in the offense; 

• Subsection (b)(4), which provides 

an enhancement for offenses involving 

firearms that were stolen, had a 


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modified serial number, or were not 

marked with a serial number; 

• Subsection (b)(5), which provides 

an enhancement for certain offenses 

involving the transport, transfer, sale, or 

other disposition of a firearm to another 

person; 

• Subsection (b)(6), which provides 

an enhancement for offenses involving 

transportation of a firearm outside the 

United States or the possession of a 

firearm in connection with another 

felony; 

• Subsection (b)(7), which provides 

an enhancement for recordkeeping 

offenses that reflect an effort to conceal 

a substantive offense involving firearms 

or ammunition; and 

• Subsection (c), which cross 

references other guidelines for cases in 

which the defendant used or possessed 

any firearm cited in the offense of 

conviction in connection with the 

commission or attempted commission of 

another offense, or possessed or 

transferred a firearm cited in the offense 

of conviction with knowledge or intent 

that it would be used or possessed in 

connection with another offense. 

Option 2, if applied to all of the listed 

subsections, would produce an 

equivalent result to Option 1, but 

Option 2 highlights the policy question 

as to whether expansion of the 

definition of ‘‘firearm’’ should apply to 

all relevant provisions. 

Issues for comment are also provided. 

Proposed Amendment 

Option 1 (‘‘Firearm’’ definition 

includes GCA firearms and NFA 

firearms): 

Section 2K1.1 is amended by inserting 

at the end the following new subsection 

(d): 

‘‘(d) Definition 

(1) For purposes of this guideline, 

‘firearm’ includes any firearm described 

in 18 U.S.C. 921(a)(3) or 26 U.S.C. 

5845(a).’’. 

The Commentary to § 2K2.1 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by striking the following: 

‘‘ ‘Firearm’ has the meaning given that 

term in 18 U.S.C. 921(a)(3).’’. 

Option 2 (‘‘Firearm’’ definition 

depends on statutory references in 

specific subsections): 

Section 2K2.1 is amended— 

in subsection (b)(1) by inserting after 

‘‘three or more firearms’’ the following: 

‘‘(as described in 18 U.S.C. 921(a)(3) or 

26 U.S.C. 5845(a))’’; 

in subsection (b)(3)(B), by striking 

‘‘subdivision’’ and inserting 

‘‘paragraph’’; 

by striking subsection (b)(4) as 

follows: 

‘‘(4) If (A) any firearm was stolen, 

increase by 2 levels; or (B)(i) any firearm 

had a serial number that was modified 

such that the original information is 

rendered illegible or unrecognizable to 

the unaided eye; 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, 

increase by 4 levels.’’, 

and inserting the following new 

subsection (b)(4) as follows: 

‘‘(4) If any firearm (as described in 18 

U.S.C. 921(a)(3) or 26 U.S.C. 5845(a)) 

(A) was stolen, increase by 2 levels; (B) 

had a serial number that was modified 

such that the original information is 

rendered illegible or unrecognizable to 

the unaided eye, increase by 4 levels; or 

(C) 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) and the 

defendant knew, was willfully blind to, 

or consciously avoided knowledge of 

such fact, increase by 4 levels.’’; 

by striking subsections (b)(5), (b)(6), 

and (b)(7) as follows: 

‘‘(5) (Apply the Greatest) If the 

defendant— 

(A) was convicted under 18 U.S.C. 

933(a)(2) or (a)(3), increase by 2 levels; 

(B) (i) transported, transferred, sold, 

or otherwise disposed of, or purchased 

or received with intent to transport, 

transfer, sell, or otherwise dispose of, a 

firearm or any ammunition knowing or 

having reason to believe that such 

conduct would result in the receipt of 

the firearm or ammunition by an 

individual who (I) was a prohibited 

person; or (II) intended to use or dispose 

of the firearm or ammunition 

unlawfully; (ii) attempted or conspired 

to commit the conduct described in 

clause (i); or (iii) received a firearm or 

any ammunition as a result of inducing 

the conduct described in clause (i), 

increase by 2 levels; or 

(C) (i) transported, transferred, sold, 

or otherwise disposed of, or purchased 

or received with intent to transport, 

transfer, sell, or otherwise dispose of, 

two or more firearms knowing or having 

reason to believe that such conduct 

would result in the receipt of the 

firearms by an individual who (I) had a 

prior conviction for a crime of violence, 

controlled substance offense, or 

misdemeanor crime of domestic 

violence; (II) was under a criminal 

justice sentence at the time of the 

offense; or (III) intended to use or 

dispose of the firearms unlawfully; (ii) 

attempted or conspired to commit the 

conduct described in clause (i); or (iii) 

received two or more firearms as a result 

of inducing the conduct described in 

clause (i), increase by 5 levels. 

Provided, however, that subsection 

(b)(5)(C)(i)(I) shall not apply based upon 

the receipt or intended receipt of the 

firearms by an individual with a prior 

conviction for a misdemeanor crime of 

domestic violence against a person in a 

dating relationship if, at the time of the 

instant offense, such individual met the 

criteria set forth in the proviso of 18 

U.S.C. 921(a)(33)(C). 

(6) If the defendant— 

(A) possessed any firearm or 

ammunition while leaving or attempting 

to leave the United States, or possessed 

or transferred any firearm or 

ammunition with knowledge, intent, or 

reason to believe that it would be 

transported out of the United States; or 

(B) used or possessed any firearm or 

ammunition in connection with another 

felony offense; or possessed or 

transferred any firearm or ammunition 

with knowledge, intent, or reason to 

believe that it would be used or 

possessed in connection with another 

felony offense, 

increase by 4 levels. If the resulting 

offense level is less than level 18, 

increase to level 18. 

(7) If a recordkeeping offense reflected 

an effort to conceal a substantive offense 

involving firearms or ammunition, 

increase to the offense level for the 

substantive offense.’’, 

and inserting the following new 

subsections (b)(5), (b)(6), and (b)(7): 

‘‘(5) (Apply the Greatest) If the 

defendant— 

(A) was convicted under 18 U.S.C. 

933(a)(2) or (a)(3), increase by 2 levels; 

(B) (i) transported, transferred, sold, 

or otherwise disposed of, or purchased 

or received with intent to transport, 

transfer, sell, or otherwise dispose of, a 

firearm (as described in 18 U.S.C. 

921(a)(3) or 26 U.S.C. 5845(a)) or any 

ammunition knowing or having reason 

to believe that such conduct would 

result in the receipt of the firearm or 

ammunition by an individual who (I) 

was a prohibited person; or (II) intended 

to use or dispose of the firearm or 

ammunition unlawfully; (ii) attempted 

or conspired to commit the conduct 

described in clause (i); or (iii) received 

a firearm (as described in 18 U.S.C. 

921(a)(3) or 26 U.S.C. 5845(a)) or any 

ammunition as a result of inducing the 

conduct described in clause (i), increase 

by 2 levels; or 

(C) (i) transported, transferred, sold, 

or otherwise disposed of, or purchased 

or received with intent to transport, 

transfer, sell, or otherwise dispose of, 

two or more firearms (as described in 18 

U.S.C. 921(a)(3) or 26 U.S.C. 5845(a)) 

knowing or having reason to believe that 


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such conduct would result in the receipt 

of the firearms by an individual who (I) 

had a prior conviction for a crime of 

violence, controlled substance offense, 

or misdemeanor crime of domestic 

violence; (II) was under a criminal 

justice sentence at the time of the 

offense; or (III) intended to use or 

dispose of the firearms unlawfully; (ii) 

attempted or conspired to commit the 

conduct described in clause (i); or (iii) 

received two or more firearms (as 

described in 18 U.S.C. 921(a)(3) or 26 

U.S.C. 5845(a)) as a result of inducing 

the conduct described in clause (i), 

increase by 5 levels. 

Provided, however, that subsection 

(b)(5)(C)(i)(I) shall not apply based upon 

the receipt or intended receipt of the 

firearms by an individual with a prior 

conviction for a misdemeanor crime of 

domestic violence against a person in a 

dating relationship if, at the time of the 

instant offense, such individual met the 

criteria set forth in the proviso of 18 

U.S.C. 921(a)(33)(C). 

(6) If the defendant— 

(A) possessed any firearm (as 

described in 18 U.S.C. 921(a)(3) or 26 

U.S.C. 5845(a)) or ammunition while 

leaving or attempting to leave the 

United States, or possessed or 

transferred any firearm (as described in 

18 U.S.C. 921(a)(3) or 26 U.S.C. 5845(a)) 

or ammunition with knowledge, intent, 

or reason to believe that it would be 

transported out of the United States; or 

(B) used or possessed any firearm (as 

described in 18 U.S.C. 921(a)(3) or 26 

U.S.C. 5845(a)) or ammunition in 

connection with another felony offense; 

or possessed or transferred any firearm 

(as described in 18 U.S.C. 921(a)(3) or 

26 U.S.C. 5845(a)) or ammunition with 

knowledge, intent, or reason to believe 

that it would be used or possessed in 

connection with another felony offense, 

increase by 4 levels. If the resulting 

offense level is less than level 18, 

increase to level 18. 

(7) If a recordkeeping offense reflected 

an effort to conceal a substantive offense 

involving firearms (as described in 18 

U.S.C. 921(a)(3) or 26 U.S.C. 5845(a)) or 

ammunition, increase to the offense 

level for the substantive offense.’’; 

and in subsection (c)(1) by inserting 

after ‘‘any firearm’’ the following: ‘‘(as 

described in 18 U.S.C. 921(a)(3) or 26 

U.S.C. 5845(a))’’; and inserting after 

‘‘transferred a firearm’’ the following: 

‘‘(as described in 18 U.S.C. 921(a)(3) or 

26 U.S.C. 5845(a))’’. 

The Commentary to § 2K2.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 1, in the paragraph that begins 

’’ ‘Firearm’ has the meaning’’ by 

inserting after ‘‘18 U.S.C. 921(a)(3)’’ the 

following: ‘‘unless otherwise specified’’; 

by striking Note 8 as follows: 

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

(A) Interaction with Subsection 

(a)(7).—If the only offense to which 

§ 2K2.1 applies is 18 U.S.C. 922(i), (j), or 

(u), or 18 U.S.C. 924(l) or (m) (offenses 

involving a stolen firearm or stolen 

ammunition) and the base offense level 

is determined under subsection (a)(7), 

do not apply the enhancement in 

subsection (b)(4)(A). This is because the 

base offense level takes into account 

that the firearm or ammunition was 

stolen. However, if the offense involved 

a firearm with a serial number that was 

modified such that the original 

information is rendered illegible or 

unrecognizable to the unaided eye, or if 

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, apply subsection (b)(4)(B)(i) or (ii). 

Similarly, if the offense to which 

§ 2K2.1 applies is 18 U.S.C. 922(k) or 26 

U.S.C. 5861(g) or (h) (offenses involving 

an altered or obliterated serial number) 

and the base offense level is determined 

under subsection (a)(7), do not apply the 

enhancement in subsection (b)(4)(B)(i). 

However, if the offense involved a 

stolen firearm or stolen ammunition, or 

if 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, apply subsection (b)(4)(A) or (B)(ii). 

(B) Defendant’s State of Mind.— 

Subsection (b)(4)(A) or (B)(i) applies 

regardless of whether the defendant 

knew or had reason to believe that the 

firearm was stolen or had a serial 

number that was modified such that the 

original information is rendered 

illegible or unrecognizable to the 

unaided eye. However, subsection 

(b)(4)(B)(ii) only applies if 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.’’, 

and inserting the following new Note 

8: 

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

(A) Interaction with Subsection 

(a)(7).—If the only offense to which 

§ 2K2.1 applies is 18 U.S.C. 922(i), (j), or 

(u), or 18 U.S.C. 924(l) or (m) (offenses 

involving a stolen firearm or stolen 

ammunition) and the base offense level 

is determined under subsection (a)(7), 

do not apply the enhancement in 

subsection (b)(4)(A). This is because the 

base offense level takes into account 

that the firearm or ammunition was 

stolen. However, if the offense involved 

a firearm with a serial number that was 

modified such that the original 

information is rendered illegible or 

unrecognizable to the unaided eye, or if 

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, apply subsection (b)(4)(B) or (C). 

Similarly, if the offense to which 

§ 2K2.1 applies is 18 U.S.C. 922(k) or 26 

U.S.C. 5861(g) or (h) (offenses involving 

an altered or obliterated serial number) 

and the base offense level is determined 

under subsection (a)(7), do not apply the 

enhancement in subsection (b)(4)(B). 

However, if the offense involved a 

stolen firearm or stolen ammunition, or 

if 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, apply subsection (b)(4)(A) or (C). 

(B) Defendant’s State of Mind.— 

Subsection (b)(4)(A) or (B) applies 

regardless of whether the defendant 

knew or had reason to believe that the 

firearm was stolen or had a serial 

number that was modified such that the 

original information is rendered 

illegible or unrecognizable to the 

unaided eye. However, subsection 

(b)(4)(C) only applies if 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.’’; 

and in Note 9 by striking ‘‘recordkeeping’’ and inserting 

‘‘recordkeeping’’. 

Issues for Comment 

1. Part A of the proposed amendment 

seeks to respond to concerns that 

§ 2K2.1 (Unlawful Receipt, Possession, 

or Transportation of Firearms or 

Ammunition; Prohibited Transactions 

Involving Firearms or Ammunition) 

insufficiently addresses the dangers 

presented by machinegun conversion 

devices (MCDs). The Commission seeks 

comment on whether the proposed 

amendment appropriately addresses 

those concerns. Should the Commission 


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address those concerns in another way? 

If so, how? 

2. Under Options 1 and 2 of Part A of 

the proposed amendment, an MCD 

would be treated as a firearm for 

purposes of § 2K2.1. The Commission 

seeks comment on whether it is 

appropriate for MCDs to be given the 

same weight as other firearms. Should 

MCDs be treated differently from other 

firearms? If so, how? 

3. Section 2K2.1(b)(1) and (b)(5)(C) 

provide enhancements based, in whole 

or in part, on the number of ‘‘firearms’’ 

involved in the offense. Under Options 

1 and 2, an MCD would be considered 

a firearm. MCDs are designed to be 

affixed to another firearm. The 

Commission seeks comment on how 

MCDs should be factored when 

calculating the number of firearms for 

purposes of § 2K2.1(b)(1) and (b)(5)(C). 

Should the calculation depend on 

whether the MCD was affixed to another 

firearm? If an MCD is affixed to a semiautomatic firearm, should the resulting 

weapon be counted as one firearm or 

two firearms? 

4. Section 2K2.1(b)(1), (b)(4), (b)(5), 

(b)(6), (b)(7), and (c) currently apply to 

firearms defined in 18 U.S.C. 921(a)(3) 

(the GCA definition of firearm). Under 

Options 1 and 2, the term ‘‘firearm,’’ as 

used in those provisions, would also 

include any firearm described in 26 

U.S.C. 5845(a) (the NFA definition of 

firearm), such as an MCD. The 

Commission seeks comment on whether 

this change should apply to all of the 

listed provisions. Should one or more of 

these provisions be excluded from the 

change? For example, should the 

Commission make an exception to 

§ 2K2.1(b)(4)(C), as redesignated, which 

provides an enhancement for certain 

cases involving firearms that were not 

marked with a serial number, for MCDs, 

which are often privately made and not 

marked with a serial number? 

5. With few exceptions (e.g., MCDs), 

a weapon that meets the NFA definition 

of firearm also meets the GCA definition 

of firearm. Apart from MCDs, the 

Commission seeks comment on whether 

there are any exceptions (i.e., weapons 

that meet the NFA definition of firearm 

but not the GCA definition) that should 

not be treated as firearms for purposes 

of § 2K2.1. If so, what types of weapons 

should be excluded? In Option 2 of Part 

A of the proposed amendment, should 

the Commission expand the application 

of subsection (b)(1), (b)(4), (b)(5), (b)(6), 

(b)(7), or (c) to include machineguns (as 

defined in 26 U.S.C. 5845(b)), rather 

than all NFA firearms? 

6. In addition to amending the 

definition of ‘‘firearm’’ for purposes of 

§ 2K2.1, Option 1 of Part A of the 

amendment would move the definition 

from the Commentary to the guideline 

itself. However, the option would not 

move any other § 2K2.1 definitions from 

the Commentary to the guideline. The 

Commission seeks comment on whether 

leaving some definitions in the 

Commentary will lead to inconsistent 

application of those definitions. Should 

the Commission move other definitions 

from the Commentary to § 2K2.1 to the 

guideline itself? If so, which ones? 

(B) Mens Rea Requirement 

Synopsis of Proposed Amendment: 

Section 2K2.1 provides for offense level 

increases in cases involving stolen 

firearms, firearms with modified serial 

numbers, and firearms not marked with 

a serial number (commonly referred to 

as ghost guns). See USSG § 2K2.1(b)(4). 

Subsection (b)(4)(A) provides a 2-level 

enhancement if a firearm is stolen. 

USSG § 2K2.1(b)(4)(A). Subsections 

(B)(i) and (ii) provide a 4-level 

enhancement based upon the existence 

and state of any serial number on 

firearms considered for purposes of 

§ 2K2.1. USSG § 2K2.1(b)(4)(B)(i) and 

(ii). The 4-level enhancement may 

apply, under subsection (b)(4)(B)(i), if a 

‘‘firearm had a serial number that was 

modified such that the original 

information is rendered illegible or 

unrecognizable to the unaided eye,’’ 

and, under subsection (b)(4)(B)(ii), if a 

‘‘firearm involved in the offense was not 

otherwise marked with a serial 

number.’’ Id. The court may not apply 

both § 2K2.1(b)(4)(A) and (b)(4)(B) 

cumulatively, as the provisions are 

alternative. See USSG § 1B1.1, 

comment. (n.4(A)) (‘‘Within each 

specific offense characteristic 

subsection, . . . the offense level 

adjustments are alternative; only the one 

that best describes the conduct is to be 

used.’’). 

The enhancements for stolen firearms 

and modified serial numbers impose no 

requirement of the defendant’s 

knowledge or other mental state. USSG 

§ 2K2.1(b)(4)(A) and (B)(i). The 

Commentary to § 2K2.1 states that these 

enhancements apply ‘‘regardless of 

whether the defendant knew or had 

reason to believe that the firearm was 

stolen or had serial number that was 

modified such that the original 

information is rendered illegible or 

unrecognizable to the unaided eye.’’ 

USSG § 2K2.1, comment. (n.8(B)). 

However, subsection (b)(4)(B)(ii) for 

firearms not marked with a serial 

number applies only ‘‘if the defendant 

knew that any firearm involved in the 

offense was not otherwise marked with 

a serial number . . . or was willfully 

blind to or consciously avoided 

knowledge of such fact.’’ Id. 

The enhancement regarding firearms 

not marked with a serial number is the 

result of a 2023 amendment. USSG App. 

C, amend. 819 (effective Nov. 1, 2023). 

The amendment extended the 4-level 

enhancement at § 2K2.1(b)(4)(B) to 

firearms not marked with a serial 

number. Id. The Commission 

determined, however, ‘‘that the 

enhancement should apply only to 

those defendants who knew or 

consciously avoided knowing that the 

firearm was not marked with a serial 

number.’’ Id. 

Accordingly, in its current form, 

§ 2K2.1(b)(4) imposes a mental state 

requirement when the enhancement 

applies based on a firearm not marked 

with a serial number but includes no 

such requirement when it applies based 

on a stolen firearm or firearm with a 

modified serial number. 

Part B of the proposed amendment 

would apply the current mental state 

requirement from § 2K2.1(b)(4)(B)(ii) to 

all of subsection (b)(4). 

Under the proposed amendment, a 

defendant would be subject to the 2- 

level enhancement under 

§ 2K2.1(b)(4)(A) only if the defendant 

‘‘knew, was willfully blind to the fact, 

or consciously avoided knowing that 

. . . any firearm was stolen.’’ Similarly, 

a defendant would be subject to the 4- 

level enhancement under 

§ 2K2.1(b)(4)(B)(i) only if the defendant 

‘‘knew, was willfully blind to the fact, 

or consciously avoided knowing that 

. . . any firearm had a serial number 

that was modified such that the original 

information is rendered illegible or 

unrecognizable to the unaided eye.’’ The 

proposed amendment would also make 

conforming changes to Application Note 

8 of the Commentary to § 2K2.1. 

An issue for comment is also 

provided. 

Proposed Amendment 

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

inserting after ‘‘If’’ the following: ‘‘the 

defendant knew, was willfully blind to 

the fact, or consciously avoided 

knowing that’’; by striking ‘‘or (B)(i) any 

firearm’’ and inserting ‘‘(B) any 

firearm’’; by striking ‘‘(ii) the defendant 

knew that any firearm’’ and inserting 

‘‘(C) any firearm’’; and by striking ‘‘or 

was willfully blind to or consciously 

avoided knowledge of such fact’’. 

The Commentary to § 2K2.1 captioned 

‘‘Application Notes’’ is amended by 

striking Note 8 as follows: 

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

(A) Interaction with Subsection 

(a)(7).—If the only offense to which 

§ 2K2.1 applies is 18 U.S.C. 922(i), (j), or 


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(u), or 18 U.S.C. 924(l) or (m) (offenses 

involving a stolen firearm or stolen 

ammunition) and the base offense level 

is determined under subsection (a)(7), 

do not apply the enhancement in 

subsection (b)(4)(A). This is because the 

base offense level takes into account 

that the firearm or ammunition was 

stolen. However, if the offense involved 

a firearm with a serial number that was 

modified such that the original 

information is rendered illegible or 

unrecognizable to the unaided eye, or if 

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, apply subsection (b)(4)(B)(i) or (ii). 

Similarly, if the offense to which 

§ 2K2.1 applies is 18 U.S.C. 922(k) or 26 

U.S.C. 5861(g) or (h) (offenses involving 

an altered or obliterated serial number) 

and the base offense level is determined 

under subsection (a)(7), do not apply the 

enhancement in subsection (b)(4)(B)(i). 

However, if the offense involved a 

stolen firearm or stolen ammunition, or 

if 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, apply subsection (b)(4)(A) or (B)(ii). 

(B) Defendant’s State of Mind.— 

Subsection (b)(4)(A) or (B)(i) applies 

regardless of whether the defendant 

knew or had reason to believe that the 

firearm was stolen or had a serial 

number that was modified such that the 

original information is rendered 

illegible or unrecognizable to the 

unaided eye. However, subsection 

(b)(4)(B)(ii) only applies if 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.’’, 

and inserting the following new Note 

8: 

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

If the only offense to which § 2K2.1 

applies is 18 U.S.C. 922(i), (j), or (u), or 

18 U.S.C. 924(l) or (m) (offenses 

involving a stolen firearm or stolen 

ammunition) and the base offense level 

is determined under subsection (a)(7), 

do not apply the enhancement in 

subsection (b)(4)(A). This is because the 

base offense level takes into account 

that the firearm or ammunition was 

stolen. However, if the defendant knew, 

was willfully blind to the fact, or 

consciously avoided knowing that a 

firearm had a serial number that was 

modified such that the original 

information is rendered illegible or 

unrecognizable to the unaided eye, or 

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), apply 

subsection (b)(4)(B) or (C). 

Similarly, if the offense to which 

§ 2K2.1 applies is 18 U.S.C. 922(k) or 26 

U.S.C. 5861(g) or (h) (offenses involving 

an altered or obliterated serial number) 

and the base offense level is determined 

under subsection (a)(7), do not apply the 

enhancement in subsection (b)(4)(B). 

However, if the defendant knew, was 

willfully blind to the fact, or 

consciously avoided knowing that a 

firearm or ammunition was stolen, or 

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), apply 

subsection (b)(4)(A) or (C).’’. 

Issue for Comment 

1. Under Part B of the proposed 

amendment, a defendant would be 

subject to the 2-level enhancement 

under § 2K2.1(b)(4)(A) only if the 

defendant ‘‘knew, was willfully blind to 

the fact, or consciously avoided 

knowing that’’ a firearm was stolen. 

Similarly, a defendant would be subject 

to the 4-level enhancement under 

§ 2K2.1(b)(4)(B) only if the defendant 

‘‘knew, was willfully blind to the fact, 

or consciously avoided knowing that 

. . . any firearm had a serial number 

that was modified such that the original 

information is rendered illegible or 

unrecognizable to the unaided eye.’’ The 

Commission seeks comment on whether 

there are evidentiary challenges in 

firearms cases to proving a defendant’s 

mental state. Are there changes the 

Commission should make to the 

proposed amendment to address 

potential evidentiary issues? If so, what 

changes should the Commission make? 

3. Circuit Conflicts 

Synopsis of Proposed Amendment: 

This proposed amendment addresses 

two circuit conflicts involving § 2B3.1 

(Robbery) and § 4A1.2 (Definitions and 

Instructions for Computing Criminal 

History). See U.S. Sent’g Comm’n, 

‘‘Notice of Final Priorities,’’ 89 FR 

66176, 66177 (Aug. 14, 2024) 

(identifying resolution of circuit 

conflicts as a priority). The proposed 

amendment contains two parts (Parts A 

and B). The Commission is considering 

whether to promulgate any or all of 

these parts, as they are not mutually 

exclusive. 

Part A addresses a circuit conflict 

concerning whether the ‘‘physically 

restrained’’ enhancement at 

§ 2B3.1(b)(4)(B) can be applied to 

situations in which a victim is restricted 

from moving at gunpoint but is not 

otherwise immobilized through physical 

measures such as those listed in the 

‘‘physically restrained’’ definition set 

forth in the Commentary to § 1B1.1 

(Application Instructions). Three 

options are presented. Issues for 

comment are also included. 

Part B addresses a circuit conflict 

concerning whether a traffic stop is an 

‘‘intervening arrest’’ for purposes of 

determining whether multiple prior 

sentences should be ‘‘counted 

separately or treated as a single 

sentence’’ when assigning criminal 

history points (‘‘single-sentence rule’’). 

See USSG § 4A1.2(a)(2). 

(A) Circuit Conflict Concerning the 

‘‘Physically Restrained’’ Enhancement 

at § 2B3.1(b)(4)(B) 

Synopsis of Proposed Amendment: 

Subsection (b)(4)(B) of § 2B3.1 (Robbery) 

provides for a 2-level enhancement ‘‘if 

any person was physically restrained to 

facilitate commission of the offense or to 

facilitate escape.’’ For purposes of 

§ 2B3.1(b)(4)(B), the term ‘‘physically 

restrained’’ is defined in Application 

Note 1(L) to § 1B1.1 (Application 

Instructions) as ‘‘the forcible restraint of 

the victim such as by being tied, bound, 

or locked up.’’ 

A circuit conflict has arisen 

concerning whether the enhancement at 

§ 2B3.1(b)(4)(B) can be applied to 

situations in which a victim is restricted 

from moving at gunpoint but is not 

otherwise immobilized through physical 

measures such as those outlined in the 

Commentary to § 1B1.1 (i.e., ‘‘being tied, 

bound, or locked up’’). 

The First, Fourth, Sixth, Tenth, and 

Eleventh Circuits have held that 

restricting a victim from moving at 

gunpoint suffices for the enhancement. 

See, e.g., United States v. Wallace, 461 

F.3d 15, 34–35 (1st Cir. 2006) (affirming 

application of enhancement where one 

victim had her path blocked and was 

ordered at gunpoint to stop, and the 

other had a gun pointed directly at his 

face and chest, ‘‘at close range,’’ and 

was commanded to ‘‘look straight ahead 

into the gun and not to move’’); United 

States v. Dimache, 665 F.3d 603, 608 

(4th Cir. 2011) (upholding enhancement 

where ‘‘two bank tellers ordered to the 

floor at gunpoint were prevented from 

both leaving the bank and thwarting the 

bank robbery’’); United States v. Howell, 


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17 F.4th 673, 692 (6th Cir. 2021) (noting 

that the Sixth Circuit has ‘‘rejected the 

notion of a ‘physical component’ 

limitation as inapt’’ and upholding 

enhancement where victim was ordered 

at gunpoint to lie down on the floor 

(citation omitted)); United States v. 

Miera, 539 F.3d 1232, 1235–36 (10th 

Cir. 2008) (pointing gun around, 

commanding bank occupants not to 

move, and blocking door sufficed for 

enhancement); United States v. Deleon, 

116 F.4th 1260, 1261–62 (11th Cir. 

2024) (affirming application of 

enhancement where the defendant 

‘‘pointed a gun at the cashier while 

demanding money’’ but never ‘‘actually 

touched the cashier’’). 

By contrast, the Second, Third, Fifth, 

Seventh, Ninth, and D.C. Circuits 

largely agree that a restraint must be 

‘‘physical’’ for the enhancement to 

apply and that the psychological 

coercion of pointing a gun at a victim, 

without more, does not qualify. See, 

e.g., United States v. Anglin, 169 F.3d 

154, 164 (2d Cir. 1999) (‘‘displaying a 

gun and telling people to get down and 

not move, without more, is insufficient 

to trigger the ‘physical restraint’ 

enhancement’’); United States v. Bell, 

947 F.3d 49, 57, 60–61 (3d Cir. 2020) 

(adopting ‘‘the requirement that the 

restraint involve some physical aspect’’; 

placing fake gun on victim’s neck and 

forcing him to floor did not suffice); 

United States v. Garcia, 857 F.3d 708, 

713–14 (5th Cir. 2017) (vacating 

enhancement because ‘‘standing near a 

door, holding a firearm, and instructing 

a victim to get on the ground’’ did not 

‘‘differentiate th[e] case in any 

meaningful way from a typical armed 

robbery’’); United States v. Herman, 930 

F.3d 872, 877 (7th Cir. 2019) (‘‘more 

than pointing a gun at someone and 

ordering that person not to move is 

necessary’’); United States v. Parker, 

241 F.3d 1114, 1118–19 (9th Cir. 2001) 

(‘‘briefly pointing a gun at a victim and 

commanding her once to get down’’ did 

not constitute ‘‘physical restraint, given 

that nearly all armed bank robberies will 

presumably involve such acts’’); see also 

United States v. Drew, 200 F.3d 871, 880 

(D.C. Cir. 2000) (‘‘the phrase ‘being tied, 

bound, or locked up’ indicates that 

physical restraint requires the defendant 

either to restrain the victim through 

bodily contact or to confine the victim 

in some way’’; physically restrained 

adjustment did not apply where victim 

was ordered to walk down the stairs at 

gunpoint). 

Part A of the proposed amendment 

presents three options for responding to 

this circuit conflict by amending the 

enhancement at § 2B3.1(b)(4)(B). 

Option 1 would generally adopt the 

approach of the First, Fourth, Sixth, 

Tenth, and Eleventh Circuits that the 

enhancement applies with or without 

physical measures. It would amend the 

language of § 2B3.1(b)(4)(B) to specify 

that the increase applies to cases in 

which ‘‘any person’s freedom of 

movement was restricted through 

physical contact or confinement (such 

as being tied, bound, or locked up) or 

other means (such as being held at 

gunpoint or having a path of escape 

blocked) to facilitate commission of the 

offense or to facilitate escape.’’ Option 

1 also includes conforming changes to 

the Commentary to § 2B3.1. 

Option 2 would generally adopt the 

approach of the Second, Third, Fifth, 

Seventh, Ninth, and D.C. Circuits that 

physical measures must be used for the 

enhancement to apply. It would amend 

the language of § 2B3.1(b)(4)(B) to 

clarify that the increase applies only in 

cases in which ‘‘any person’s freedom of 

movement was restricted through 

physical contact or confinement, such 

as being tied, bound, or locked up, to 

facilitate commission of the offense or to 

facilitate escape.’’ Option 2 also 

includes conforming changes to the 

Commentary to § 2B3.1. 

Option 3 would combine the 

approaches from both sides of the 

circuit split into a two-tiered 

enhancement that would replace the 

current ‘‘physically restrained’’ 

enhancement at § 2B3.1(b)(4)(B). The 

new enhancement would provide for a 

2-level enhancement for offenses in 

which ‘‘any person’s freedom of 

movement was restricted through 

physical contact or confinement, such 

as being tied, bound, or locked up, to 

facilitate commission of the offense or to 

facilitate escape.’’ It would also add a 1- 

level enhancement for offenses in which 

‘‘any person’s freedom of movement 

was restricted through means other than 

physical contact or confinement, such 

as being held at gunpoint or having a 

path of escape blocked, to facilitate 

commission of the offense or to facilitate 

escape.’’ Option 3 includes conforming 

changes to the Commentary to § 2B3.1. 

Issues for comment are also provided. 

Proposed Amendment 

Option 1 (First, Fourth, Sixth, Tenth, 

and Eleventh Approach—Physical or 

Non-Physical Means): 

Section 2B3.1(b)(4)(B) is amended by 

striking ‘‘if any person was physically 

restrained’’ and inserting ‘‘if any 

person’s freedom of movement was 

restricted through physical contact or 

confinement (such as being tied, bound, 

or locked up) or other means (such as 

being held at gunpoint or having a path 

of escape blocked)’’. 

The Commentary to § 2B3.1 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by striking ‘‘ ‘abducted,’ and 

‘physically restrained’ are defined’’ and 

inserting ‘‘and ‘abducted,’ have the 

meaning given such terms’’. 

The Commentary to § 2B3.1 captioned 

‘‘Background’’ is amended by striking 

‘‘was physically restrained by being 

tied, bound, or lock up’’ and inserting 

‘‘a victim’s freedom of movement was 

restricted’’. 

Option 2 (Second, Third, Fifth, 

Seventh, Ninth, and D.C. Circuits 

Approach—Physical Contact or 

Confinement Required): 

Section 2B3.1(b)(4)(B) is amended by 

striking ‘‘if any person was physically 

restrained’’ and inserting ‘‘if any 

person’s freedom of movement was 

restricted through physical contact or 

confinement, such as being tied, bound, 

or locked up,’’. 

The Commentary to § 2B3.1 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by striking ‘‘ ‘abducted,’ and 

‘physically restrained’ are defined’’ and 

inserting ‘‘and ‘abducted,’ have the 

meaning given such terms’’. 

The Commentary to § 2B3.1 captioned 

‘‘Background’’ is amended by striking 

‘‘was physically restrained by being 

tied, bound, or lock up’’ and inserting 

‘‘a victim’s freedom of movement was 

restricted’’. 

Option 3 (Combination of Both 

Approaches): 

Section 2B3.1(b)(4) is amended by 

striking the following: 

‘‘(A) If any person was abducted to 

facilitate commission of the offense or to 

facilitate escape, increase by 4 levels; or 

(B) if any person was physically 

restrained to facilitate commission of 

the offense or to facilitate escape, 

increase by 2 levels’’; 

and inserting the following: 

‘‘(A) If any person was abducted to 

facilitate escape, increase by 4 levels; 

(B) if any person’s freedom of movement 

was restricted through physical contact 

or confinement, such as being tied, 

bound, or locked up, to facilitate 

commission of the offense or to facilitate 

escape, increase by 2 levels; or (C) if any 

person’s freedom of movement was 

restricted through means other than 

physical contact or confinement, such 

as being held at gunpoint or having a 

path of escape blocked, to facilitate 

commission of the offense or to facilitate 

escape, increase by 1 level’’. 

The Commentary to § 2B3.1 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by striking ‘‘ ‘abducted,’ and 

‘physically restrained’ are defined’’ and 


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inserting ‘‘and ‘abducted,’ have the 

meaning given such terms’’. 

The Commentary to § 2B3.1 captioned 

‘‘Background’’ is amended by striking 

‘‘was physically restrained by being 

tied, bound, or lock up’’ and inserting 

‘‘a victim’s freedom of movement was 

restricted’’. 

Issues for Comment 

1. Part A of the proposed amendment 

sets forth three 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? 

2. The term ‘‘physically restrained,’’ 

as used in § 2B3.1 (Robbery), is defined 

in Application Note 1(L) of the 

Commentary to § 1B1.1 (Application 

Instructions). Other guidelines also use 

the term ‘‘physically restrained’’ and 

define such term by reference to the 

Commentary to § 1B1.1. See 

§§ 2B3.2(b)(5)(B) (‘‘[I]f any person was 

physically restrained to facilitate 

commission of the offense or to facilitate 

escape, increase by 2 levels.’’), 

2E2.1(b)(3)(B) (‘‘[I]f any person was 

physically restrained to facilitate 

commission of the offense or to facilitate 

escape, increase by 2 levels.’’), 3A1.3 

(‘‘If a victim was physically restrained 

in the course of the offense, increase by 

2 levels.’’). 

If the Commission were to promulgate 

Part A of the proposed amendment, 

should the Commission also amend any 

or all of these other guidelines to mirror 

the proposed approach for § 2B3.1? 

Instead of amending § 2B3.1 or the other 

guidelines, should the Commission 

amend Application Note 1(L) of the 

Commentary to § 1B1.1 to mirror the 

proposed approach for § 2B3.1? 

(B) Circuit Conflict Concerning Meaning 

of ‘‘Intervening Arrest’’ in § 4A1.2(a)(2) 

Synopsis of Proposed Amendment: 

Subsection (a)(2) of § 4A1.2 (Definitions 

and Instructions for Computing 

Criminal History) outlines whether 

multiple prior sentences should be 

‘‘counted separately or treated as a 

single sentence’’ for purposes of 

assigning criminal history points 

(‘‘single-sentence rule’’). Prior sentences 

should be ‘‘counted separately if the 

sentences were imposed for offenses 

that were separated by an intervening 

arrest (i.e., the defendant is arrested for 

the first offense prior to committing the 

second offense).’’ USSG § 4A1.2(a)(2) 

(emphasis added). If ‘‘there is no 

intervening arrest, prior sentences are 

counted separately unless (A) the 

sentences resulted from offenses 

contained in the same charging 

instrument; or (B) the sentences were 

imposed on the same day.’’ Id. 

(emphasis added). 

There is a circuit split over the 

meaning of ‘‘intervening arrest.’’ The 

Third, Sixth, Ninth, and Eleventh 

Circuits have held that a formal, 

custodial arrest is required, and that a 

citation or summons following a traffic 

stop does not qualify. See United States 

v. Ley, 876 F.3d 103, 109 (3d Cir. 2017) 

(‘‘[A] traffic stop, followed by the 

issuance of a summons, is not an arrest. 

The Court therefore holds that, for 

purposes of section 4A1.2(a)(2) of the 

Sentencing Guidelines, an arrest is a 

formal, custodial arrest.’’); United States 

v. Rogers, 86 F.4th 259, 264–65 (6th Cir. 

2023) (‘‘for purposes of § 4A1.2(a)(2), an 

arrest requires placing someone in 

police custody as part of a criminal 

investigation’’; ‘‘subtle interactions with 

law enforcement—such as traffic stops’’ 

are not ‘‘the focus of the Guidelines’ 

approach’’ to prior sentences); United 

States v. Leal-Felix, 665 F.3d 1037, 1041 

(9th Cir. 2011) (en banc) (for purposes 

of the guidelines, ‘‘an arrest is a ‘formal 

arrest’ ’’ not a ‘‘mere citation’’ and ‘‘may 

be indicated by informing the suspect 

that he is under arrest, transporting the 

suspect to the police station, and/or 

booking the suspect into jail’’); United 

States v. Wright, 862 F.3d 1265, 1282 

(11th Cir. 2017) (‘‘traffic citation for 

driving with a suspended license is not 

an arrest under § 4A1.2(a)(2)’’). By 

contrast, the Seventh Circuit has 

adopted a broad view of the term, 

holding that a traffic stop amounts to an 

intervening arrest. See United States v. 

Morgan, 354 F.3d 621, 624 (7th Cir. 

2003) (‘‘A traffic stop is an ‘arrest’ in 

federal parlance.’’). 

Part B of the proposed amendment 

responds to this circuit conflict. It 

would add a provision to § 4A1.2(a)(2) 

clarifying that an ‘‘[i]ntervening arrest 

. . . requires a formal, custodial arrest 

and is ordinarily indicated by placing 

someone in police custody as part of a 

criminal investigation, informing the 

suspect that the suspect is under arrest, 

transporting the suspect to the police 

station, or booking the suspect into jail.’’ 

It would also specify that a 

‘‘noncustodial encounter with law 

enforcement, such as a traffic stop, is 

not an intervening arrest.’’ 

Proposed Amendment 

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

inserting at the end the following new 

paragraph: 

‘‘ ‘Intervening arrest,’ for purposes of 

this provision, requires a formal, 

custodial arrest and is ordinarily 

indicated by placing someone in police 

custody as part of a criminal 

investigation, informing the suspect that 

the suspect is under arrest, transporting 

the suspect to the police station, or 

booking the suspect into jail. A 

noncustodial encounter with law 

enforcement, such as a traffic stop, is 

not an intervening arrest.’’. 

4. Simplification of Three-Step Process 

Synopsis of Proposed Amendment: In 

August 2024, the Commission identified 

as one of its policy priorities for the 

amendment cycle ending May 1, 2025, 

‘‘[s]implifying the guidelines and 

clarifying their role in sentencing,’’ 

including ‘‘possibly amending the 

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

(Application Instructions) and the use of 

departures and policy statements 

relating to specific personal 

characteristics.’’ U.S. Sent’g Comm’n, 

‘‘Notice of Final Priorities,’’ 89 FR 

66176 (Aug. 14, 2024). 

In December 2023, the Commission 

published a proposed amendment that 

would have provided for a two-step 

process in § 1B1.1 (Application 

Instructions) with accompanying 

changes throughout the Guidelines 

Manual to convert the Commission’s 

existing departures and policy 

statements to ‘‘additional 

considerations.’’ More specifically, that 

proposed amendment would have 

revised § 1B1.1 to account for a two-step 

sentencing process, established a new 

Chapter Six further addressing the 

court’s consideration of the factors set 

forth in 18 U.S.C. 3553(a), eliminated 

Chapter Five, Part H and most of Part K, 

and reclassified most ‘‘departures’’ 

currently provided throughout the 

Guidelines Manual as ‘‘Additional 

Considerations’’ that may be relevant to 

the court’s determination under 18 

U.S.C. 3553(a). See Proposed 

Amendments to the Sentencing 

Guidelines (Dec. 2023) at https://

www.ussc.gov/guidelines/amendments/ 

proposed-2024-amendments-federalsentencing-guidelines. 

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 the Commission with broad 

authority to develop guidelines that will 

further the basic purposes of criminal 

sentencing: deterrence, incapacitation, 

retribution, and rehabilitation. The Act 

contains detailed instructions as to how 

this determination should be made, 

including that the Commission establish 

categories of offenses and categories of 

defendants for use in prescribing 


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guideline ranges that specify an 

appropriate sentence and to consider 

whether, and to what extent, specific 

offense-based and defendant-based 

factors are relevant to sentencing. See 28 

U.S.C. 994(c), (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 

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 postBooker federal sentencing system 

adopted procedural measures that make 

the guidelines the ‘lodestone’ of 

sentencing’’). After determining the 

kinds of sentence and guideline 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 a sentence that 

is sufficient but not greater than 

necessary. See Rita v. United States, 551 

U.S. 338, 347–48 (2007). 

Section 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. 

Post-Booker, the Commission 

incorporated 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; (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 imposing a sentence that is sufficient, 

but not greater than necessary (whether 

within or outside the applicable 

guideline range). 

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 defendant, 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 generally 

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— 

(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. 


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(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. For 

further information pertaining to the 

application of departure provisions 

other than § 5K1.1 or § 5K3.1 (either 

alone or in conjunction with § 5K1.1 or 

§ 5K3.1), see https://www.ussc.gov/ 

education/backgrounders/2024- 

simplification-data. 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. 

Part B of 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). 

Part B of 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 

an Appendix of the Guidelines Manual. 

Second, Part B of the proposed 

amendment would revise the 

application instructions provided in 

§ 1B1.1 to reflect the simplification of 

the three-step process into two steps. 

Part B of the proposed amendment sets 

forth the calculation of guideline range 

and determination of sentencing 

requirements and options under the 

Guidelines Manual as the first step of 

the sentencing process in § 1B1.1(a). 

The court’s consideration of the section 

3553(a) factors is set forth as the second 

and final step of the sentencing process 

in § 1B1.1(b). As revised, § 1B1.1(b) 

expressly lists the factors courts must 

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

Additionally, the definition of 

‘‘departures’’ is removed from the 

application notes to § 1B1.1, and the 

Background Commentary is revised 

accordingly. 

In addition, Part B of the proposed 

amendment 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). More 

specifically, Part B of the proposed 

amendment revises current § 1A3.1 

(Authority), which sets forth the 

Commission’s authority in developing 

the guidelines. First, the provision is 

redesignated as § 1A1.1 and, for clarity, 

is retitled as ‘‘Commission’s Authority.’’ 

Second, in addition to referring to 28 

U.S.C. 994(a) as the basis of the 

Commission’s authority to promulgate 

guidelines, policy statements, and 

commentary, the provision would also 

explain how the Commission has 

complied with the requirements placed 

by Congress, noting what is not 

considered by the Commission in 

formulating the guidelines used to 

calculate the guideline range. 

A new background commentary 

explains that the requirements and 

limitations imposed upon the 

Commission by 28 U.S.C. 994, do not 

apply to sentencing courts. It makes 

clear that ‘‘Congress set forth the factors 

that a court must consider in imposing 

a sentence that is ‘sufficient but not 

greater than necessary’ to comply with 

the purposes of sentencing in 18 U.S.C. 

3553(a)’’ and that ‘‘[t]hese statutory 

factors permit a sentencing court to 

consider the ‘widest possible breadth of 

information’ about a defendant ensuring 

the court is in ‘possession of the fullest 

information possible concerning the 

defendant’s life and characteristics.’ ’’ 

The new background commentary 

concludes by noting that the application 

instructions set forth in § 1B1.1 are 

structured to reflect a two-step process 

in which the sentencing court must first 

correctly calculate the applicable 

guideline range as the ‘‘starting point 

and initial benchmark’’ and then must 

determine an appropriate sentence upon 

consideration of all the factors set forth 

by Congress in 18 U.S.C. 3553(a). 

Consistent with the revised approach, 

Part B of the proposed amendment 

would delete most ‘‘departures’’ 

currently provided throughout the 

Guidelines Manual. Changes would be 

made throughout the Guidelines Manual 

by deleting the departure provisions 

currently contained in commentary to 

various guidelines. Part B of 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, all 

provisions in Chapter Five, Part K 

(Departures), with the exception of 

those pertaining to substantial 

assistance to the authorities and early 

disposition programs, 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. 

Finally, Chapter Five is also amended 

by revising the Commentary to § 5B1.1 

(Imposition of a Term of Probation) and 

§ 5D1.1 (Imposition of a Term of 

Supervised Release) to emphasize the 

factors courts are statutorily required to 

consider in determining the conditions 

of probation or supervised release. The 

commentary is further revised to retain 

factors the Commission had previously 

identified as relevant in Chapter Five, 

Part H pursuant to the congressional 

guidance provided to the Commission 

in 28 U.S.C. 994(d) and (e). 

The issues for comment set forth 

below are informed by the proposed 

amendment contained in Part B. 

(A) Issues for Comment 

1. Part B of the proposed amendment 

would remove the second step in the 

three-step process, as set forth in 

subsection (b) of § 1B1.1 (Application 


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Instructions), 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 Commission invites general 

comment on whether reconceptualizing 

the three-step process in this manner 

streamlines the application of the 

Guidelines Manual and better reflects 

the interaction between 18 U.S.C. 

3553(a) and the guidelines. Does the 

approach set forth in Part B of the 

proposed amendment better achieve 

these goals than the proposed 

amendment published in December 

2023 (available at https://www.ussc.gov/ 

guidelines/amendments/proposed-2024- 

amendments-federal-sentencingguidelines), which would have retained 

current departure provisions in more 

generalized language and reclassified 

them as ‘‘Additional Considerations’’ 

that may be relevant to the court’s 

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

Are there any other approaches that the 

Commission should consider to 

reconceptualize and simplify the threestep 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 

Part B of the proposed amendment, is 

consistent with the Commission’s 

authority under 28 U.S.C. 994 and 995 

and all other provisions of federal law. 

Similarly, the Commission seeks 

comment on whether revising the threestep process is consistent with other 

congressional directives to the 

Commission, such as the restrictions on 

the Commission’s authority to 

promulgate further reasons for 

downward departures set forth in the 

Prosecutorial Remedies and Other Tools 

to end the Exploitation of Children 

Today Act of 2003 (‘‘PROTECT Act’’), 

Public Law 108–21, 117 Stat. 649 

(2003). 

3. The Guidelines Manual currently 

contains more than two hundred 

departure provisions in Chapter Five, 

Part K (Departures), 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. Such provisions were 

either included by the original 

Commission or through subsequent 

guideline amendments to provide 

guidance to courts in identifying 

‘‘aggravating or mitigating 

circumstance(s) 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.’’ See 18 U.S.C. 3553(b). 

The proposed amendment contained 

in Part B would delete most 

‘‘departures’’ currently provided 

throughout the Guidelines Manual. 

Only the provisions pertaining to 

substantial assistance to authorities 

(currently provided for in Chapter Five, 

Part K, Subpart 1) and early disposition 

programs (currently provided for in 

§ 5K3.1 (Early Disposition Programs 

(Policy Statement)) would be retained in 

the Manual, while other deleted 

‘‘departures’’ would be accounted for 

through the court’s consideration of the 

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

If the Commission were to remove the 

second step in the three-step process, as 

proposed in Part B, should the 

Commission continue to expressly 

account for any ‘‘departure provisions’’ 

in the Guidelines Manual beside 

substantial assistance and Early 

Disposition Programs? If so, which 

provisions should be retained and how? 

Alternatively, should the Commission 

remove the departures contained in 

Chapter Five, Part K, and the provisions 

in Chapter Five, Part H, addressing the 

relevance of certain specific personal 

characteristics in sentencing, while 

retaining other departure provisions 

throughout the Guidelines Manual? 

The Commission also seeks comment 

on whether it should consolidate and 

preserve for historical purposes any 

deleted departure provisions. If so, how 

should the Commission do so? For 

example, should the Commission 

somehow preserve the content of 

deleted departures in a new Appendix 

to the Guidelines Manual or in some 

other format? 

4. At some places in the Guidelines 

Manual, commentary including a 

departure provision also provides 

background information that the 

Commission determined was relevant to 

the court’s consideration. For example, 

in setting forth a series of departure 

considerations, Application Note 27 of 

the Commentary to § 2D1.1 (Unlawful 

Manufacturing, Importing, Exporting, or 

Trafficking) also provides background 

information regarding the nature and 

impact of certain controlled substances, 

such as synthetic cathinones and 

cannabinoids, that may be informative 

to a court’s determination as to whether 

a departure is warranted. The 

Commission seeks comment on whether 

it should retain such type of background 

information even if the departure 

language is removed. If so, which 

provisions in the Guidelines Manual 

currently contain background 

information that should be retained? 

(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 


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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 

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 


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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 

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 


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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 

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 (Post-Sentencing 

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. 


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(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 

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 ‘zeropoint’ 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 


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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. 

(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. 


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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 

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. 


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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 

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. 

Congress directed the Commission to 

establish sentencing policies and 

practices for the federal criminal justice 

system and develop guidelines that 

further the purposes of sentencing. The 

guidelines set forth throughout this 

Manual represent the first step in the 

sentencing process and are one of 

multiple factors judges must consider in 

arriving at sentence that is sufficient but 

not greater than necessary under 18 

U.S.C. 3553(a). 

This Part provides the statutory 

authority and mission of the 

Commission to promulgate federal 

sentencing guidelines, policy 

statements, and commentary. 

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. Commission’s Authority 

The Sentencing Reform Act of 1984 

(Title II of the Comprehensive Crime 

Control Act of 1984) provides that a 

sentencing court ‘shall impose a 

sentence sufficient, but not greater than 

necessary, to comply with’ the purposes 

of sentencing: (1) to reflect the 

seriousness of the offense, to promote 

respect for the law, and to provide just 

punishment for the offense; (2) 

deterrence; (3) protection of the public 

from further crimes; and (4) 

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


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The Act also provides for the 

development of guidelines by the 

Commission that further those purposes. 

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. 

The Commission has ensured that the 

guidelines, policy statements, and 

commentary used to calculate the 

guideline range are: (1) neutral as to the 

race, sex, national origin, creed, and 

socioeconomic status of the defendant; 

and (2) generally do not reflect 

consideration of education, vocational 

skills, employment record, family ties 

and responsibilities, and community 

ties of the defendant, in recommending 

a term of imprisonment or length of 

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

Commentary 

Background: 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 of sentencing as set forth 

in the Act—to reflect the seriousness of 

the offense, to promote respect for the 

law, to provide just punishment for the 

offense, deterrence, protection of the 

public from further crimes, and 

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

Act provides for the development of 

guidelines that will (1) further these 

statutory purposes of sentencing; (2) 

provide certainty and fairness in 

meeting the purposes of sentencing, 

avoiding unwarranted sentencing 

disparities among defendants with 

similar records who have been found 

guilty of similar criminal conduct while 

maintaining sufficient flexibility to 

permit individualized sentences when 

warranted by mitigating or aggravating 

factors not taken into account in the 

establishment of general sentencing 

practices; and (3) reflect, to the extent 

practicable, advancement in knowledge 

of human behavior as it relates to the 

criminal justice process. 28 U.S.C. 

994(f). 

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, the Act directs the Commission 

to consider, for purposes of establishing 

categories of offenses, whether the 

following seven matters, ‘among others,’ 

have any relevance to the nature, extent, 

place of service, or other aspects of an 

appropriate sentence: (1) the grade of 

the offense; (2) the circumstances under 

which the offense was committed which 

mitigate or aggravate the seriousness of 

the offense; (3) the nature and degree of 

the harm caused by the offense, 

including whether it involved property, 

irreplaceable property, a person, a 

number of persons, or a breach of public 

trust; (4) the community view of the 

gravity of the offense; (5) the public 

concern generated by the offense; (6) the 

deterrent effect a particular sentence 

may have on the commission of the 

offense by others; and (7) the current 

incidence of the offense in the 

community and in the Nation as a 

whole. See 28 U.S.C. 994(c). 

Second, the Act directs the 

Commission to consider, for purposes of 

establishing categories of defendants, 

whether the following eleven matters, 

‘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: (1) age; (2) education; (3) 

vocational skills; (4) mental and 

emotional condition to the extent that 

such condition mitigates the defendant’s 

culpability or to the extent that such 

condition is otherwise plainly relevant; 

(5) physical condition, including drug 

dependence; (6) previous employment 

record; (7) family ties and 

responsibilities; (8) community ties; (9) 

role in the offense; (10) criminal history; 

and (11) degree of dependence upon 

criminal activity for a livelihood. See 28 

U.S.C. 994(d). The Act also 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). 

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). 

In formulating the guidelines used to 

calculate the guideline range, the 

Commission remains cognizant of these 

detailed instructions directing the 

Commission to consider whether, and to 

what extent, specific offense-based and 

offender-based factors are relevant to 

sentencing. See 28 U.S.C. 994(c), (d). 

Similarly, the Commission has ensured 

that the guidelines, policy statements, 

and commentary used to calculate the 

guideline range are: (1) neutral as to the 

race, sex, national origin, creed, and 

socioeconomic status of the defendant; 

and (2) generally do not reflect 

consideration of education, vocational 

skills, employment record, family ties 

and responsibilities, and community 

ties of the defendant in recommending 

a term of imprisonment or length of 

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

The requirements and limitations 

imposed upon the Commission by 28 

U.S.C. 994, however, do not apply to the 

sentencing court. To the contrary, 

Congress set forth the factors that a 

court must consider in imposing a 

sentence that is ‘sufficient but not 

greater than necessary’ to comply with 

the purposes of sentencing in 18 U.S.C. 

3553(a). These statutory factors permit a 

sentencing court to consider the ‘widest 

possible breadth of information’ about a 

defendant ensuring the court is in 

‘possession of the fullest information 

possible concerning the defendant’s life 

and characteristics.’ See Pepper v. 

United States, 562 U.S. 476, 488 (2011); 

see also Concepcion v. United States, 

597 U.S. 481, 493 (2022). Accordingly, 

the application instructions set forth in 

the following part are structured to 

reflect this two-step process whereby 

the sentencing court must first correctly 

calculate the applicable guideline range 

as the ‘starting point and initial 

benchmark’ and then must determine an 

appropriate sentence upon 

consideration of all the factors set forth 

by Congress in 18 U.S.C. 3553(a). See 

Gall v. United States, 552 U.S. 38, 49– 

51 (2007).’’. 

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’’; 

and by inserting at the end the 

following new paragraph 9: 


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‘‘(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).— 

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, to comply with the purposes 

of sentencing. 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.’’. 

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 

clause (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. 

‘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. 

Originally, the guidelines were 

mandatory, 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, 

district courts are first 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.’’. 

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’’; and 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’’. 

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 


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generally § 1B1.4 (Information to be 

Used in Imposing Sentence); § 5K2.0 

(Grounds for Departure).’’. 

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 

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.’’. 

Section 1B1.7 is amended by striking 

the following: 

‘‘The Commentary that accompanies 

the guideline sections may serve a 

number of purposes. First, it may 

interpret the guideline or explain how it 

is to be applied. Failure to follow such 

commentary could constitute an 

incorrect application of the guidelines, 

subjecting the sentence to possible 

reversal on appeal. See 18 U.S.C. 3742. 

Second, the commentary may suggest 

circumstances which, in the view of the 

Commission, may warrant departure 

from the guidelines. Such commentary 

is to be treated as the legal equivalent 

of a policy statement. Finally, the 

commentary may provide background 

information, including factors 

considered in promulgating the 

guideline or reasons underlying 

promulgation of the guideline. As with 

a policy statement, such commentary 

may provide guidance in assessing the 

reasonableness of any departure from 

the guidelines.’’; 

and inserting the following: 

‘‘The Commentary that accompanies 

the guideline sections may serve a 

number of purposes. It may interpret the 

guideline or explain how it is to be 

applied. Failure to follow such 

commentary could constitute an 

incorrect application of the guidelines, 

subjecting the sentence to possible 

reversal on appeal. See 18 U.S.C. 3742. 

In addition, the commentary may 

provide background information, 

including factors considered in 

promulgating the guideline or reasons 

underlying promulgation of the 

guideline.’’. 

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 ‘‘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)(1)–(7), which is determined 

before consideration of Part K of 

Chapter Five and § 1B1.1(b))’’; 

and in Note 3 by striking 

‘‘(constituting a downward departure or 

variance)’’ and inserting ‘‘(constituting a 

sentence that is below the otherwise 

applicable guideline range)’’; 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 1B1.12 is amended by striking 

‘‘sufficient to warrant an upward 

departure from that guideline range. 

United States v. R.L.C., 503 U.S. 291 

(1992)’’ and inserting ‘‘sufficient to 

warrant imposing a sentence greater 

than that guideline range in determining 

the appropriate sentence to impose 


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

U.S.C. 5037(c); United States v. R.L.C., 

503 U.S. 291 (1992)’’. 

Chapter Two is amended in the 

Introductory Commentary by striking 

‘‘Chapter Four, Parts B (Career 

Offenders and Criminal Livelihood) and 

C (Adjustment for Certain Zero-Point 

Offenders); and Chapter Five, Part K 

(Departures)’’ and inserting: ‘‘and 

Chapter Four, Parts B (Career Offenders 

and Criminal Livelihood) and C 

(Adjustment for Certain Zero-Point 

Offenders)’’. 

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.’’; 

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 § 2A1.2 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).’’. 

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 § 2A2.4 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 § 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 § 2A3.2 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 § 2A3.6 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 § 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 § 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 § 2A6.2 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 § 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.’’; 

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 


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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. 

(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 § 2B1.5 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 § 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. Upward Departure Provision.—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 § 2B3.2 captioned 

‘‘Application Notes’’ is amended by 

striking Notes 7 and 8 as follows: 

‘‘7. Upward Departure Based on 

Threat of Death or Serious Bodily Injury 

to Numerous Victims.—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. Upward Departure Based on 

Organized Criminal Activity or Threat to 

Family Member of Victim.—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 § 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 § 2C1.1 captioned 

‘‘Application Notes’’ is amended— 


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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 § 2C1.8 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 § 2D1.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 3 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. 

Additionally, in determining’’; and 

inserting ‘‘In determining’’; 

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 

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. 


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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 § 2D1.5 captioned 

‘‘Application Notes’’ is amended— 

by striking Note 2 as follows: 

‘‘2. Upward Departure Provision.—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 § 2D1.7 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.’’. 

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. 

Additionally, any costs’’; and inserting 

‘‘Any costs’’. 

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. Additionally, any costs’’; 

and inserting ‘‘Any costs’’. 

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. 

Where the circumstances establish 

intended consumption by a person other 

than the defendant, an upward 

departure may be warranted.’’. 

The Commentary to § 2D2.3 captioned 

‘‘Background’’ is amended by striking 

‘‘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 4 by striking ‘‘If this treatment 

produces an anomalous result in a 

particular case, a guideline departure 

may be warranted.’’. 

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 § 2G1.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 2 by striking ‘‘If bodily injury 

results, an upward departure may be 

warranted. See Chapter Five, Part K 

(Departures).’’; 

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 § 2G1.3 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 § 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 § 2G2.2 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.’’; 

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) 


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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 § 2H2.1 is 

amended by striking the Commentary 

captioned ‘‘Application Note’’ in its 

entirety as follows: 

‘‘Application Note: 

1. Upward Departure Provision.—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).’’. 

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 § 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 § 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 § 2J1.3 captioned 

‘‘Application Notes’’ is amended— 

by striking Note 4 as follows: 

‘‘4. If a weapon was used, or bodily 

injury or significant property damage 

resulted, an upward departure may be 

warranted. See Chapter Five, Part K 

(Departures).’’; 

and by redesignating Note 5 as Note 

4. 

The Commentary to § 2J1.6 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 § 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 § 2K1.4 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).’’. 

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

striking ‘‘, before application of 

subsection (b) of § 4A1.3 (Departures 

Based on Inadequacy of Criminal 

History Category)’’. 

The Commentary to § 2K2.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 7 by striking the following: 

‘‘Offenses involving such devices 

cover a wide range of offense conduct 

and involve different degrees of risk to 

the public welfare depending on the 

type of destructive device involved and 

the location or manner in which that 

destructive device was possessed or 

transported. For example, a pipe bomb 

in a populated train station creates a 

substantially greater risk to the public 

welfare, and a substantially greater risk 

of death or serious bodily injury, than 

an incendiary device in an isolated area. 

In a case in which the cumulative result 

of the increased base offense level and 

the enhancement under subsection 

(b)(3) does not adequately capture the 

seriousness of the offense because of the 

type of destructive device involved, the 

risk to the public welfare, or the risk of 

death or serious bodily injury that the 

destructive device created, an upward 

departure may be warranted. See also 

§§ 5K2.1 (Death), 5K2.2 (Physical 

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

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 


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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). 

Section 2K2.4(a) is amended by 

striking ‘‘Chapters Three (Adjustments) 

and Four (Criminal History and 

Criminal Livelihood)’’ and inserting 

‘‘Chapters Three (Adjustments), Parts A 

through E, and Four (Criminal History 

and Criminal Livelihood)’’. 

Section 2K2.4(b) is amended by 

striking ‘‘Chapters Three and Four’’ and 

inserting ‘‘Chapters Three, Parts A 

through E, and Four’’. 

Section 2K2.4(c) is amended by 

striking ‘‘Chapters Three and Four’’ and 

inserting ‘‘Chapters Three, Parts A 

through E, and Four’’. 

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.’’; 

in Note 4 by striking the subparagraph 

(C) as follows: 

‘‘(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).’’; 

and in Note 5 by striking ‘‘Chapter 

Three (Adjustment) and Chapter Four 

(Criminal History and Criminal 

Livelihood)’’ and inserting ‘‘Chapter 

Three (Adjustment), Parts A through E, 

and Chapter Four (Criminal History and 

Criminal Livelihood)’’; and by striking 

‘‘no other adjustments in Chapter 

Three’’ and inserting ‘‘no other 

adjustments in Chapter Three, Parts A 

through D,’’. 

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 § 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 § 2L1.2 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 


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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 § 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 § 2L2.2 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 § 2M3.1 

captioned ‘‘Application Notes’’ is 

amended— 

in Note 2 by striking ‘‘When 

revelation is likely to cause little or no 

harm, a downward departure may be 

warranted. See Chapter Five, Part K 

(Departures).’’; 

and by striking Note 3 as follows: 

‘‘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 § 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.’’. 

The Commentary to § 2M5.1 

captioned ‘‘Application Notes’’ is 

amended by striking Note 3 as follows: 

‘‘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.’’. 

The Commentary to § 2M5.2 

captioned ‘‘Application Notes’’ is 

amended— 

in the caption by striking ‘‘Notes’’ and 

inserting ‘‘Note’’; 

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 § 2M5.3 

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 § 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 


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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 § 2N1.2 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).’’. 

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).’’. 

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 § 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 § 2P1.3 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).’’. 

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).’’. 

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.’’; 

by 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 § 2Q1.3 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, respectively; 

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 § 2Q1.4 captioned 

‘‘Application Notes’’ is amended by 

striking Note 3 as follows: 

‘‘3. Departure Provisions.— 


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(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 § 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 

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 § 2R1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 7 by striking ‘‘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))’’ 

and inserting ‘‘a sentence at the 

maximum of the applicable guideline 

range may be warranted’’. 

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.’’. 

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.’’. 

Chapter Two, Part T, Subpart 3 is 

amended in the Introductory 

Commentary by striking ‘‘, or for 

departing upward if there is not another 

more specific applicable guideline’’. 

The Commentary to § 2T3.1 captioned 

‘‘Application Notes’’ is amended— 

by striking Note 2 as follows: 

‘‘2. Particular attention should be 

given to those items for which entry is 

prohibited, limited, or restricted. 

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. A 

sentence based upon an alternative 

measure of the ‘duty’ evaded, such as 

the increase in market value due to 

importation, or 25 percent of the items’ 

fair market value in the United States if 

the increase in market value due to 

importation is not readily ascertainable, 

might be considered.’’; 

and by redesignating Note 3 as Note 

2. 

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 Six, 

Part A (Sentencing Procedures); and 

Chapter Six, Part B (Plea Agreements)’’; 

and in Note 2 by striking the 

following: 

‘‘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 

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 § 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.’’. 

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 § 3A1.2 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 § 3A1.3 captioned 

‘‘Application Notes’’ is amended by 

striking Note 3 as follows: 

‘‘3. If the restraint was sufficiently 

egregious, an upward departure may be 


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warranted. See § 5K2.4 (Abduction or 

Unlawful Restraint).’’. 

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 § 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 § 3B1.4 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 § 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 § 3D1.1 captioned 

‘‘Background’’ is amended by striking 

‘‘Chapter Three, Part E (Acceptance of 

Responsibility)’’ and inserting ‘‘Chapter 

Three, Parts E (Acceptance of 

Responsibility) and F (Early Disposition 

Program),’’; and 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 

‘‘it was rejected because it probably 

would require departure in many cases 

in order to capture adequately the 

criminal behavior’’ and inserting ‘‘it was 

rejected because, in many cases, it 

would not adequately 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 § 3D1.4 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 

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 


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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)’’; and by striking 

‘‘Chapter Three, Part E (Acceptance of 

Responsibility)’’ and inserting ‘‘Chapter 

Three, Parts E (Acceptance of 

Responsibility) and F (Early Disposition 

Program),’’. 

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).’’. 

Chapter Four, Part A is amended in 

the Introductory Commentary by 

striking ‘‘and § 4A1.3’’. 

The Commentary to § 4A1.1 captioned 

‘‘Background’’ is amended by striking 

‘‘In recognition of the imperfection of 

this measure however, § 4A1.3 

authorizes the court to depart from the 

otherwise applicable criminal history 

category in certain circumstances.’’. 

Section 4A1.2(h) is amended by 

striking ‘‘, but may be considered under 

§ 4A1.3 (Departures Based on 

Inadequacy of Criminal History 

Category (Policy Statement))’’. 

Section 4A1.2(i) is amended by 

striking ‘‘, but may be considered under 

§ 4A1.3 (Departures Based on 

Inadequacy of Criminal History 

Category (Policy Statement))’’. 

Section 4A1.2(j) is amended by 

striking ‘‘, but may be considered under 

§ 4A1.3 (Departures 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 

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 the following: 

‘‘Nonetheless, the criminal conduct 

underlying any conviction that is not 

counted in the criminal history score 

may be considered pursuant to § 4A1.3 

(Departures Based on Inadequacy of 


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Criminal History Category (Policy 

Statement)).’’; 

and in Note 8 by striking ‘‘If the court 

finds that a sentence imposed outside 

this time period is evidence of similar, 

or serious dissimilar, criminal conduct, 

the court may consider this information 

in determining whether an upward 

departure is warranted under § 4A1.3 

(Departures Based on Inadequacy of 

Criminal History Category (Policy 

Statement)).’’. 

Chapter Four, Part A is amended by 

striking § 4A1.3 and its accompanying 

commentary in its entirety as follows: 

‘‘§ 4A1.3. Departures Based on 

Inadequacy of Criminal History 

Category (Policy Statement) 

(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. 

Commentary 

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, 


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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.’’. 

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 § 4B1.4 captioned 

‘‘Application Notes’’ is amended in 

Note 2 by striking the following: 

‘‘In a few cases, the rule provided in 

the preceding paragraph 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 subsections (b)(3)(A) and 

(c)(2) 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 § 4B1.4 captioned 

‘‘Background’’ is amended by striking 

‘‘In some cases, the criminal history 

category may not adequately reflect the 

defendant’s criminal history; see 

§ 4A1.3 (Departures 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.’’. 

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. Additionally, the 

provisions in this chapter set forth the 

sentencing requirements and options 

under the guidelines related to 

probation, imprisonment, supervision 


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conditions, fines, and restitution for the 

particular guideline range. For example, 

for certain categories of offenses and 

offenders, the guidelines permit the 

court to impose either imprisonment or 

some other sanction or combination of 

sanctions. After applying the provisions 

of this chapter to determine the 

sentencing options recommended under 

the guidelines pursuant to subsection (a) 

of § 1B1.1 (Application Instructions), 

the court shall consider the other 

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

to determine the length and type of 

sentence that is sufficient but not greater 

than necessary. A sentence is within the 

guidelines if it complies with each 

applicable section of this chapter.’’. 

The Commentary to § 5B1.1 captioned 

‘‘Applications Notes’’ is amended by 

inserting at the end the following new 

Note 3— 

‘‘3. Factors To Be Considered.— 

(A) Statutory Factors.—The court, in 

determining whether to impose a term 

of probation, and, if a term of probation 

is to be imposed, in determining the 

length of the term and the conditions of 

probation, is required by statute to 

consider the factors set forth in 18 

U.S.C. 3553(a) to the extent that they are 

applicable. See 18 U.S.C. 3562(a). 

(B) Substance Abuse.—In a case in 

which a defendant sentenced to 

probation is an abuser of controlled 

substances or alcohol, it is 

recommended that the court consider 

imposing a condition requiring the 

defendant to participate in a program 

approved by the United States Probation 

Office for substance abuse may be 

appropriate. See § 5B1.3(d)(4). 

(C) Domestic Violence.—If the 

defendant is convicted for the first time 

of a domestic violence crime as defined 

in 18 U.S.C. 3561(b), a term of probation 

is required by statute if the defendant is 

not sentenced to a term of 

imprisonment. See 18 U.S.C. 3561(b). 

Such a defendant is also required by 

statute to attend an approved 

rehabilitation program, if available 

within a 50-mile radius of the legal 

residence of the defendant. See 18 

U.S.C. 3563(a); § 5B1.3(a)(4). 

(D) Mental and Emotional 

Conditions.—In a case in which a 

defendant sentenced to probation is in 

need of psychological or psychiatric 

treatment, it is recommended that the 

court consider imposing a condition 

requiring that the defendant participate 

in a mental health program approved by 

the United States Probation Office. See 

§ 5B1.3(d)(5). 

(E) Education and Vocational 

Skills.—Education and vocational skills 

may be relevant in determining the 

conditions of probation 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. 

(F) Employment Record.—A 

defendant’s employment record may be 

relevant in determining the conditions 

of probation (e.g., the appropriate hours 

of home detention).’’. 

The Commentary to § 5C1.1 captioned 

‘‘Application 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 

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 § 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 need not 

impose a term of supervised release’’; 

and in Note 3— 

in subparagraph (C), by striking ‘‘See 

§ 5H1.4 (Physical Condition, Including 

Drug or Alcohol Dependence or Abuse; 

Gambling Addiction)’’ and inserting 

‘‘See § 5D1.3(d)(4)’’; 

and by inserting at the end the 

following new subparagraphs (E), (F), 

and (G): 

‘‘(E) Mental and Emotional 

Conditions.—In a case in which a 

defendant sentenced to imprisonment is 

in need of psychological or psychiatric 

treatment, it is recommended that the 


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court consider imposing a condition 

requiring that the defendant participate 

in a mental health program approved by 

the United States Probation Office. See 

5D1.3(d)(5). 

(F) Education and Vocational 

Skills.—Education and vocational skills 

may be relevant in determining the 

conditions of 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. 

(G) Employment Record.—A 

defendant’s employment record may be 

relevant in determining the conditions 

of supervised release (e.g., the 

appropriate hours of home detention).’’. 

Section 5D1.3(d)(4) is amended by 

inserting after ‘‘possess alcohol.’’ the 

following: ‘‘If participation in a 

substance abuse program is required, 

the length of the term of supervised 

release should take into account the 

length of time necessary for the 

probation office to judge the success of 

the program.’’. 

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 § 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— 

by striking Note 4(E) as follows: 

‘‘(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).’’. 

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 

applicable guideline range, the type of 


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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 addressing 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 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 

or prior offenses. Certain risk factors 

may affect a youthful individual’s 

development into the mid-20’s and 

contribute to involvement in criminal 

justice systems, including environment, 

adverse childhood experiences, 

substance use, lack of educational 

opportunities, and familial 

relationships. In addition, youthful 

individuals generally are more 

impulsive, risk-seeking, and susceptible 

to outside influence as their brains 

continue to develop into young 

adulthood. Youthful individuals also 

are more amenable to rehabilitation. 

The age-crime curve, one of the most 

consistent findings in criminology, 

demonstrates that criminal behavior 

tends to decrease with age. Ageappropriate interventions and other 

protective factors may promote 

desistance from crime. Accordingly, 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. 

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 


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§ 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). 

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 depart 

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, 


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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 

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 ‘‘a sentence 

that is below the otherwise applicable 

guideline range may be appropriate’’. 

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: 


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(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 

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 Written 

Reasons for Departure.—If the court 

departs from the applicable guideline 

range, it shall state, pursuant to 18 

U.S.C. 3553(c), its specific reasons for 

departure in open court at the time of 

sentencing and, with limited exception 

in the case of statements received in 

camera, shall state those reasons with 

specificity in the 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, 


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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 

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 

subparagraph 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 


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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 

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. 


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(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 

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, 


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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 

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 Six, Part A is amended by 

striking § 6A1.4 and its accompanying 

commentary in its entirety 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 


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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.’’. 

Chapter Six, Part B 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 § 6B1.2 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.’’; 

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 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. 

Section 8A1.2(b) is amended— 

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 § 8C4.1 

(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) 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 § 8A1.2 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)’’. 

The Commentary to § 8C2.3 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)’’. 

The Commentary to § 8C2.8 captioned 

‘‘Application Notes’’ is amended in 

Note 5 by striking ‘‘In a case involving 

a pattern of illegality, an upward 

departure may be warranted.’’. 

The Commentary to § 8C2.8 captioned 

‘‘Background’’ is amended by striking 

‘‘In unusual cases, factors listed in this 

section may provide a basis for 

departure.’’. 

Chapter Eight, Part C, Subpart 4 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 

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 8C4.1(a) is amended by 

striking ‘‘the court may depart from the 

guidelines’’ and inserting ‘‘a fine that is 

below the otherwise applicable 

guideline fine range may be 

appropriate’’. 

The Commentary to § 8C4.1 captioned 

‘‘Application Note’’ is amended in Note 

1 by striking ‘‘Departure under this 

section’’ and inserting ‘‘Fine reduction 

under this section’’. 

Chapter Eight, Part C is further 

amended by striking §§ 8C4.2 through 

8C4.11 in their entirety 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 

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. 


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§ 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).’’. 

[FR Doc. 2024–31279 Filed 12–31–24; 8:45 am] 

BILLING CODE 2210–40–P 


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