`[Federal Register Volume 90, Number 1 (Thursday, January 2, 2025)]
[Notices]
[Pages 128-183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-31279]



[[Page 127]]

Vol. 90

Thursday,

No. 1

January 2, 2025

Part II





United States Sentencing Commission





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Sentencing Guidelines for United States Courts; Notice

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

[[Page 128]]



UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice and request for public comment and hearing.

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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 Sec.  4B1.2 (Definitions of 
Terms Used in Section 4B1.1), including amendments to (A) Sec.  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 Sec.  4B1.2; and (C) related issues for comment.
    (2) A two-part proposed amendment to Sec.  2K2.1 (Unlawful Receipt, 
Possession, or Transportation of Firearms or Ammunition; Prohibited 
Transactions Involving Firearms or Ammunition), including (A) 
amendments to Sec.  2K2.1 to address its application to offenses 
involving machinegun conversion devices (MCDs), and related issues for 
comment; and (B) an amendment to Sec.  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 Sec.  2B3.1 (Robbery) and Sec.  4A1.2 (Definitions 
and Instructions for Computing Criminal History), including (A) three 
options for amending Sec.  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 Sec.  1B1.1 (Application Instructions), and 
related issues for comment; and (B) an amendment to Sec.  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 three-step process set 
forth in Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  
1B1.10(b) as among the factors the Commission considers in selecting 
the amendments included in Sec.  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-sentencing-guidelines-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 Sec.  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 
Sec.  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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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 Sec.  4B1.2

    The proposed amendment would amend Sec.  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 Sec.  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 Sec.  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 Sec.  4B1.2(b)(1)(A) (which closely 
tracks the language of current Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  4B1.2. The proposed 
amendment would make such changes to Sec.  2K1.3 (Unlawful Receipt, 
Possession, or Transportation of Explosive Materials; Prohibited 
Transactions Involving Explosive Materials), Sec.  2K2.1 (Unlawful 
Receipt, Possession, or Transportation of Firearms or Ammunition; 
Prohibited Transactions Involving Firearms or Ammunition), Sec.  2S1.1 
(Laundering of Monetary Instruments; Engaging in Monetary Transactions 
in Property Derived from Unlawful Activity), Sec.  4A1.2 (Definitions 
and Instructions for Computing Criminal History), Sec.  4B1.4 (Armed 
Career Criminal), Sec.  5K2.17 (Semiautomatic Firearms Capable of 
Accepting Large Capacity Magazine (Policy Statement)), and Sec.  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 Sec.  
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 Sec.  
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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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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  4A1.2.--The provisions of Sec.  4A1.2 
(Definitions and Instructions for Computing Criminal History) are 
applicable to the counting of convictions under Sec.  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 Sec.  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, Sec.  952(a), Sec.  955, or Sec.  959, or 
46 U.S.C. 70503(a) or Sec.  70506(b), [or 21 U.S.C. 843(a)(6), Sec.  
843(b), Sec.  846 (if the object of the conspiracy or attempt was to 
commit an offense covered by this provision), Sec.  856, Sec.  860, 
Sec.  960, or Sec.  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 
Sec.  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 Sec.  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 Sec.  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

[[Page 132]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  4A1.1(a), (b), or (c); or (2) any 
such felony conviction of a `crime of violence' that is counted 
separately under Sec.  4A1.1(a) [or (b)].]]
    [Option 2 for Subsection (c) (Limiting Prior Convictions Through a 
Sentence-Imposed 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 Sec.  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 Sec.  4A1.2(b) and Application Note 2 of the 
Commentary to Sec.  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 Sec.  4A1.1(a), (b), or (c); or (2) any 
such felony conviction of a `crime of violence' that (A) is counted 
separately under Sec.  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 Sec.  4A1.2(b) and Application 
Note 2 of the Commentary to Sec.  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.

[[Page 133]]

    [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 
Time-Served 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 Sec.  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 Sec.  4A1.1(a), (b), or (c); or (2) any 
such felony conviction of a `crime of violence' that (A) is counted 
separately under Sec.  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 
Sec.  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 Sec.  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 Sec.  4B1.2. See USSG App. C, 
Amendment [__] (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 Sec.  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 
Sec.  4B1.2(b) and Application Note 1 of the Commentary to Sec.  4B1.2 
(Definitions of Terms Used in Section 4B1.1).
    `Crime of violence' has the meaning given that term in Sec.  
4B1.2(a) and Application Note 1 of the Commentary to Sec.  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

[[Page 134]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  2K2.1 captioned ``Application Notes'' is 
amended--
    in Note 1 by striking the following:
    '' `Controlled substance offense' has the meaning given that term 
in Sec.  4B1.2(b) and Application Note 1 of the Commentary to Sec.  
4B1.2 (Definitions of Terms Used in Section 4B1.1).
    `Crime of violence' has the meaning given that term in Sec.  
4B1.2(a) and Application Note 1 of the Commentary to Sec.  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

[[Page 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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  4B1.2 (Definitions of Terms Used in 
Section 4B1.1).''.
    The Commentary to Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  4A1.1 captioned ``Application Notes'' is 
amended in Note 4 by striking '' `crime of violence' has the meaning 
given that term in Sec.  4B1.2(a). See Sec.  4A1.2(p)'' and inserting 
'' `crime of violence' has the meaning given that term in Sec.  
4A1.2(p)''.
    Section 4A1.2(p) is amended by striking the following:
    ``For the purposes of Sec.  4A1.1(d), the definition of `crime of 
violence' is that set forth in Sec.  4B1.2(a).'';
    and inserting the following:
    ``(1) Definition.--For purposes Sec.  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.

[[Page 136]]

    (E) A violation of 18 U.S.C. 924(c) or Sec.  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 Sec.  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 Sec.  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 Sec.  4B1.2(a), or a controlled substance 
offense, as defined in Sec.  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 Sec.  4B1.2(a), or a controlled substance 
offense, as defined in Sec.  4B1.2(b)'' and inserting ``either a crime 
of violence or a controlled substance offense''.
    The Commentary to Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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

[[Page 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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  7B1.1 captioned ``Application Notes'' is 
amended--
    in Note 2 by striking the following:
    `` `Crime of violence' is defined in Sec.  4B1.2 (Definitions of 
Terms Used in Section 4B1.1). See Sec.  4B1.2(a) and Application Note 1 
of the Commentary to Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  4B1.2 
(Definitions of Terms Used in Section 4B1.1). See Sec.  4B1.2(b) and 
Application Note 1 of the Commentary to Sec.  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,

[[Page 138]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  
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 
Sec.  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 Sec.  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 Sec.  
4B1.2(b)(1)(A). The provision closely tracks the language of current 
Sec.  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 Sec.  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 Sec.  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 Sec.  
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

[[Page 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 Sec.  4B1.2. See Commentary to Sec.  
2K1.3 (Unlawful Receipt, Possession, or Transportation of Explosive 
Materials; Prohibited Transactions Involving Explosive Materials), 
Sec.  2K2.1 (Unlawful Receipt, Possession, or Transportation of 
Firearms or Ammunition; Prohibited Transactions Involving Firearms or 
Ammunition), Sec.  2S1.1 (Laundering of Monetary Instruments; Engaging 
in Monetary Transactions in Property Derived from Unlawful Activity), 
Sec.  4A1.2 (Definitions and Instructions for Computing Criminal 
History), Sec.  4B1.4 (Armed Career Criminal), Sec.  5K2.17 
(Semiautomatic Firearms Capable of Accepting Large Capacity Magazine 
(Policy Statement)), and Sec.  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 Sec.  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 Sec.  4B1.2 if the Commission were to promulgate the 
proposed amendment making changes to the definitions contained in Sec.  
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 Sec.  
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 Sec.  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 Sec.  2K2.1(a)(1), (3), 
(4), and (5). Therefore, those enhanced base offense levels apply to 
offenses involving MCDs. However, the remainder of Sec.  2K2.1, 
including the specific offense characteristics and the cross reference, 
uses the GCA definition of firearm. USSG Sec.  2K2.1, comment. (n.1). 
Therefore, MCDs do not trigger Sec.  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 Sec.  2K2.1(a)(5). However, 
this individual would not receive an enhancement under Sec.  
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 Sec.  
2K2.1(b)(1).
    Commenters have expressed concern that Sec.  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 Sec.  2K2.1 to address 
these concerns.
    The proposed amendment provides two options to amend Sec.  2K2.1.
    Option 1 would amend the definition of ``firearm'' applicable to 
Sec.  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

[[Page 140]]

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 Sec.  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

[[Page 141]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 ``record-keeping'' and inserting 
``recordkeeping''.
Issues for Comment
    1. Part A of the proposed amendment seeks to respond to concerns 
that Sec.  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

[[Page 142]]

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 Sec.  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 Sec.  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 semi-automatic 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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  2K2.1(b)(4). 
Subsection (b)(4)(A) provides a 2-level enhancement if a firearm is 
stolen. USSG Sec.  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 Sec.  2K2.1. USSG Sec.  
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 Sec.  
2K2.1(b)(4)(A) and (b)(4)(B) cumulatively, as the provisions are 
alternative. See USSG Sec.  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 Sec.  2K2.1(b)(4)(A) and (B)(i). The Commentary to Sec.  
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 
Sec.  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 Sec.  
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, Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  2K2.1 applies is 18 U.S.C. 922(i), (j), or

[[Page 143]]

(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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  2B3.1 (Robbery) and Sec.  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 Sec.  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 Sec.  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 Sec.  4A1.2(a)(2).

(A) Circuit Conflict Concerning the ``Physically Restrained'' 
Enhancement at Sec.  2B3.1(b)(4)(B)

    Synopsis of Proposed Amendment: Subsection (b)(4)(B) of Sec.  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 Sec.  2B3.1(b)(4)(B), the term 
``physically restrained'' is defined in Application Note 1(L) to Sec.  
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 
Sec.  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 
Sec.  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,

[[Page 144]]

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 
Sec.  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 Sec.  
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 Sec.  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 Sec.  
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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  2B3.1 
(Robbery), is defined in Application Note 1(L) of the Commentary to 
Sec.  1B1.1 (Application Instructions). Other guidelines also use the 
term ``physically restrained'' and define such term by reference to the 
Commentary to Sec.  1B1.1. See Sec. Sec.  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 Sec.  2B3.1? Instead of 
amending Sec.  2B3.1 or the other guidelines, should the Commission 
amend Application Note 1(L) of the Commentary to Sec.  1B1.1 to mirror 
the proposed approach for Sec.  2B3.1?

(B) Circuit Conflict Concerning Meaning of ``Intervening Arrest'' in 
Sec.  4A1.2(a)(2)

    Synopsis of Proposed Amendment: Subsection (a)(2) of Sec.  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 Sec.  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 Sec.  
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 Sec.  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 Sec.  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 three-step process set forth in Sec.  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 Sec.  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 Sec.  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-federal-sentencing-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

[[Page 146]]

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 post-Booker federal sentencing 
system adopted procedural measures that make the guidelines the 
`lodestone' of sentencing''). After determining the kinds of sentence 
and guideline range, 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 Sec.  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 Sec.  
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 Sec.  
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 Sec.  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., Sec. Sec.  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 
Sec. Sec.  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 Sec.  
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.

[[Page 147]]

    (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 Sec.  5K1.1 or Sec.  5K3.1 (either 
alone or in conjunction with Sec.  5K1.1 or Sec.  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 Sec.  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 Sec.  
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 Sec.  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 Sec.  1B1.1(b). As revised, Sec.  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 Sec.  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 Sec.  1A3.1 
(Authority), which sets forth the Commission's authority in developing 
the guidelines. First, the provision is redesignated as Sec.  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 
Sec.  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 
Sec.  5B1.1 (Imposition of a Term of Probation) and Sec.  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 Sec.  1B1.1 
(Application

[[Page 148]]

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-sentencing-guidelines), 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 
three-step process, and if so, what are they?
    2. The Commission seeks comment on whether revising the three-step 
process, either in general or as implemented in 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 three-step 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 Sec.  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 Sec.  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 guideline-writing 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

[[Page 150]]

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

[[Page 151]]

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), Sec.  5H1.12 (Lack of Guidance as a Youth and Similar 
Circumstances), the third sentence of Sec.  5H1.4 (Physical Condition, 
Including Drug or Alcohol Dependence or Abuse), the last sentence of 
Sec.  5K2.12 (Coercion and Duress), and Sec.  5K2.19 (Post-Sentencing 
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 pre-guidelines 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.

[[Page 152]]

(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 Sec.  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 
Sec.  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 Sec.  5C1.1 to address the alternatives to incarceration 
available to `zero-point' offenders by revising the application note 
in Sec.  5C1.1 that addressed `nonviolent first offenders' to focus 
on `zero-point' offenders. (See USSG App. C, amendment 821.)


    **Note: Although the Commission had not addressed `single acts 
of aberrant behavior' at the time the Introduction to the Guidelines 
Manual originally was written, it subsequently addressed the issue 
in Amendment 603, effective November 1, 2000. (See USSG App. C, 
amendment 603.)

(e) Multi-Count Convictions
    The Commission, like several state sentencing commissions, has 
found it particularly difficult to develop guidelines for sentencing 
defendants convicted of multiple violations of law, each of which makes 
up a separate count in an indictment. The difficulty is that when a 
defendant engages in conduct that causes several harms, each additional 
harm, even if it increases the extent to which punishment is warranted, 
does not necessarily warrant a proportionate increase in punishment. A 
defendant who assaults others during a fight, for example, may warrant 
more punishment if he injures ten people than if he injures one, but 
his conduct does not necessarily warrant ten times the punishment. If 
it did, many of the simplest offenses, for reasons that are often 
fortuitous, would lead to sentences of life imprisonment--sentences 
that neither just deserts nor crime control theories of punishment 
would justify.
    Several individual guidelines provide special instructions for 
increasing punishment when the conduct that is the subject of that 
count involves multiple occurrences or has caused several harms. The 
guidelines also provide general rules for aggravating punishment in 
light of multiple harms charged separately in separate counts. These 
rules may produce occasional anomalies, but normally they will permit 
an appropriate degree of aggravation of punishment for multiple 
offenses that are the subjects of separate counts.
    These rules are set out in Chapter Three, Part D (Multiple Counts). 
They essentially provide: (1) when the conduct involves fungible items 
(e.g., separate drug transactions or thefts of money), the amounts are 
added and the guidelines apply to the total amount; (2) when 
nonfungible harms are involved, the offense level for the most serious 
count is increased (according to a diminishing scale) to reflect the 
existence of other counts of conviction. The guidelines have been 
written in order to minimize the possibility that an arbitrary casting 
of a single transaction

[[Page 153]]

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 pre-guidelines sentencing 
practice and sentences under the guidelines.
    While the Commission has not considered itself bound by pre-
guidelines 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 pre-guidelines 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 Anti-Drug 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, labor-intensive 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 Sec.  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 
Sec.  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 Sec.  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
Sec.  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
Sec.  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).

[[Page 156]]

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:

[[Page 157]]

    ``(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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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

[[Page 158]]

generally Sec.  1B1.4 (Information to be Used in Imposing Sentence); 
Sec.  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 (Sec.  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 (Sec.  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 Sec.  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 Sec.  5K1.1 (Substantial Assistance to Authorities)''.
    The Commentary to Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  1B1.1(a)(1)-(7), which is determined 
before consideration of Part K of Chapter Five and Sec.  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

[[Page 159]]

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 Sec.  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 Sec.  
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 Sec.  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 Sec.  5K2.8 (Extreme 
Conduct).''.
    The Commentary to Sec.  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 Sec.  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 Sec.  5K2.7 (Disruption of Governmental Function).''.
    The Commentary to Sec.  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 
Sec.  5K2.8 (Extreme Conduct).''.
    The Commentary to Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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

[[Page 160]]

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 Sec.  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 Sec.  2B2.1 captioned ``Background'' is amended 
by striking ``Weapon use would be a ground for upward departure.''.
    The Commentary to Sec.  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 Sec.  
2A2.1 (Assault with Intent to Commit Murder; Attempted Murder).'';
    and by renumbering Note 6 as Note 5.
    The Commentary to Sec.  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 Sec.  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 Sec.  2C1.1 captioned ``Application Notes'' is 
amended--

[[Page 161]]

    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 Sec.  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 Sec.  5K2.7 
(Disruption of Governmental Function).''.
    The Commentary to Sec.  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 Sec.  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, 
non-countable 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 alpha-PVP. 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.

[[Page 162]]

    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 Sec.  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 Sec.  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 large-scale 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 Sec.  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 Sec.  2D1.12 captioned ``Application Notes'' is 
amended--
    by striking Note 1 as follows:
    ``1. If the offense involved the large-scale 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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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)

[[Page 163]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  5K2.6 (Weapons and 
Dangerous Instrumentalities) may be warranted.''.
    The Commentary to Sec.  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 Sec.  4A1.3 (Departures Based on 
Inadequacy of Criminal History Category)''.
    The Commentary to Sec.  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 Sec. Sec.  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

[[Page 164]]

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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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 Sec.  929(a) offense but is not determined to be a career 
offender under Sec.  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 Sec.  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), Sec.  924(c), or Sec.  
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), Sec.  924(c), or Sec.  
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), Sec.  924(c), or Sec.  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), Sec.  924(c), or Sec.  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 Sec.  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 Sec.  2L1.1 captioned ``Application Notes'' is 
amended--
    in Note 4 by striking ``Application Note 1(M) of Sec.  1B1.1'' and 
inserting ``Application Note 1(L) of Sec.  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 Sec.  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 Sec.  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 Sec.  5G1.3(b) and, accordingly, is not covered by a 
departure under Sec.  5K2.23 (Discharged Terms of Imprisonment). See 
Sec.  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

[[Page 165]]

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 Sec.  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 Sec.  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 Sec.  
3A1.4 (Terrorism).''.
    The Commentary to Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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

[[Page 166]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  3A1.4 
(Terrorism).''.
    The Commentary to Sec.  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 Sec.  
4A1.3 (Departures Based on Inadequacy of Criminal History Category 
(Policy Statement)).''.
    The Commentary to Sec.  2Q1.4 captioned ``Application Notes'' is 
amended by striking Note 3 as follows:
    ``3. Departure Provisions.--

[[Page 167]]

    (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 Sec.  3A1.4 (Terrorism).''.
    The Commentary to Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  2X5.1 captioned ``Application Notes'' is 
amended--
    in Note 1 by inserting after ``include:'' the following: ``Sec.  
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 Sec.  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 Sec.  2A3.1 (Criminal Sexual 
Abuse; Attempt to Commit Criminal Sexual Abuse).''.
    The Commentary to Sec.  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 Sec.  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 Sec.  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 Sec.  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

[[Page 168]]

warranted. See Sec.  5K2.4 (Abduction or Unlawful Restraint).''.
    The Commentary to Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 (Sec.  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 Sec.  5K2.5 (Property Damage or Loss).''.
    The Commentary to Sec.  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

[[Page 169]]

plus one-half) and the combined offense level would be 17.''.
    The Commentary to Sec.  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
Sec.  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 Sec.  4A1.3''.
    The Commentary to Sec.  4A1.1 captioned ``Background'' is amended 
by striking ``In recognition of the imperfection of this measure 
however, Sec.  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 Sec.  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 Sec.  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 Sec.  4A1.3 (Departures Based on Inadequacy of Criminal History 
Category (Policy Statement))''.
    The Commentary to Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  4A1.1(b), because it 
was not imposed within ten years of the defendant's commencement of the 
instant offense. See Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  4A1.1(b), because it 
was not imposed within ten years of the defendant's commencement of the 
instant offense. See Sec.  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 Sec.  4A1.3 (Departures Based on Inadequacy of

[[Page 170]]

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 Sec.  
4A1.3 (Departures Based on Inadequacy of Criminal History Category 
(Policy Statement)).''.
    Chapter Four, Part A is amended by striking Sec.  4A1.3 and its 
accompanying commentary in its entirety as follows:
``Sec.  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 
over-represents 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 Sec.  4B1.4 (Armed Career 
Criminal); and (ii) a repeat and dangerous sex offender against minors 
within the meaning of Sec.  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 Sec.  4B1.1 (Career Offender) 
may not exceed one criminal history category.
    (B) Limitation on Applicability of Sec.  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 Sec.  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 Sec.  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 Sec.  4A1.3(a) above and, in addition,

[[Page 171]]

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 Sec.  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 Sec.  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 Sec.  4A1.3(b)(3)(A).''.
    The Commentary to Sec.  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 Sec.  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 Sec.  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), Sec.  924(c), or Sec.  
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), Sec.  924(c), or Sec.  
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), Sec.  924(c), or Sec.  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), Sec.  924(c), or Sec.  929(a).''.
    The Commentary to Sec.  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 Sec.  4A1.3 
(Departures Based on Inadequacy of Criminal History Category (Policy 
Statement)).''.
    The Commentary to Sec.  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 Sec.  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 Sec.  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 Sec.  
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); Sec.  
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 Sec.  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 Sec.  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 Sec.  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 Sec.  4C1.1 
(Adjustment for Certain Zero-Point 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 Sec.  4C1.1 
(Adjustment for Certain Zero-Point 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 Sec.  4C1.1 (Adjustment 
for Certain Zero-Point 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 Sec.  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 Sec.  5H1.4 (Physical 
Condition, Including Drug or Alcohol Dependence or Abuse; Gambling 
Addiction)'' and inserting ``See Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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 Sec.  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 
Sec.  5H1.9 (Dependence upon Criminal Activity for a Livelihood). Other 
specific offender characteristics are accounted for elsewhere in this 
manual. See, e.g., Sec. Sec.  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., Sec.  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 Sec.  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.
Sec.  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. Age-appropriate 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 
Sec.  5H1.4 (Physical Condition, Including Drug or Alcohol Dependence 
or Abuse; Gambling Addiction).
Sec.  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

[[Page 175]]

Sec.  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.
Sec.  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 Sec.  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 Sec. Sec.  5B1.3(d)(5) and 5D1.3(d)(5)).
Sec.  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 Sec.  
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 Sec.  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 Sec.  5B1.3(d)(4)).
    Addiction to gambling is not a reason for a downward departure.
Sec.  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).
Sec.  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 non-exhaustive 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.
Sec.  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 Sec.  5K2.0 (Grounds for Departures)).
Sec.  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 Sec.  4A1.3 (Departures Based on 
Inadequacy of Criminal History Category).
Sec.  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,

[[Page 176]]

Part B (Career Offenders and Criminal Livelihood).
Sec.  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.
Sec.  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.
Sec.  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
Sec.  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:

[[Page 177]]

    (1) Any circumstance specifically prohibited as a ground for 
departure in Sec. Sec.  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 Sec.  3E1.1 (Acceptance of 
Responsibility).
    (3) The defendant's aggravating or mitigating role in the offense, 
which may be taken into account only under Sec.  3B1.1 (Aggravating 
Role) or Sec.  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 Sec.  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 Sec.  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 Sec.  4A1.3 (Departures Based on Inadequacy of Criminal 
History Category)); (ii) departures based on the defendant's 
substantial assistance to the authorities (see Sec.  5K1.1 (Substantial 
Assistance to Authorities)); and (iii) departures based on early 
disposition programs (see Sec.  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 Sec.  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,

[[Page 178]]

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 Sec.  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

[[Page 179]]

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.
Sec.  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.
Sec.  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 Sec.  
5K2.1.
Sec.  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.
Sec.  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.
Sec.  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.
Sec.  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.
Sec.  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.
Sec.  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.
Sec.  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.
Sec.  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.

[[Page 180]]

    (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 non-violent 
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.
Sec.  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.
Sec.  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.
Sec.  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.
Sec.  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.
Sec.  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.
Sec.  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 Sec.  4B1.2 (Definitions of Terms Used in Section 4B1.1).
Sec.  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.
Sec.  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 law-abiding 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 Sec.  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 
Sec.  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 Sec.  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.
Sec.  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.
Sec.  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 Sec.  5H1.1.
    (2) An extraordinary physical impairment may be a reason to depart 
downward only if and to the extent permitted by Sec.  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.
Sec.  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 
Sec.  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.
Sec.  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
Sec.  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 Sec.  6A1.4 and its 
accompanying commentary in its entirety as follows:
``Sec.  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 Sec.  6B1.2 is amended--
    in the paragraph that begins ``Similarly, the court'' by striking 
``As set forth in subsection (d) of Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec. Sec.  
8C4.2 through 8C4.11 in their entirety as follows:
``Sec.  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.
Sec.  8C4.3. Threat to National Security (Policy Statement)
    If the offense constituted a threat to national security, an upward 
departure may be warranted.

[[Page 183]]

Sec.  8C4.4. Threat to the Environment (Policy Statement)
    If the offense presented a threat to the environment, an upward 
departure may be warranted.
Sec.  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).
Sec.  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.
Sec.  8C4.7. Public Entity (Policy Statement)
    If the organization is a public entity, a downward departure may be 
warranted.
Sec.  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.
Sec.  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.
Sec.  8C4.10. Mandatory Programs To Prevent and Detect Violations of 
Law (Policy Statement)
    If the organization's culpability score is reduced under Sec.  
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.
Sec.  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 Sec.  8C2.4(a)(1), Sec.  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 Sec.  8C2.4(a)(2).''.

[FR Doc. 2024-31279 Filed 12-31-24; 8:45 am]
BILLING CODE 2210-40-P`