`[Federal Register Volume 90, Number 22 (Tuesday, February 4, 2025)]
[Notices]
[Pages 8968-8999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-02129]



[[Page 8967]]

Vol. 90

Tuesday,

No. 22

February 4, 2025

Part II





United States Sentencing Commission





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Sentencing Guidelines for United States Courts; Notice

  Federal Register / Vol. 90, No. 22 / Tuesday, February 4, 2025 / 
Notices  

[[Page 8968]]


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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 March 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 March 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 Commission published a notice of proposed amendments in the 
Federal Register on January 2, 2025 (see 90 FR 128). Those proposed 
amendments have a public comment period ending on February 3, 2025, and 
a reply comment period ending on February 18, 2025. The Commission is 
now considering promulgating additional amendments to the sentencing 
guidelines, policy statements, and commentary. This notice sets forth 
those proposed amendments.
    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 two-part proposed amendment relating to supervised release, 
including (A) amendments to Chapter Five, Part D (Supervised Release) 
to provide courts greater discretion to impose a term of supervised 
release in the manner it determines is most appropriate based on an 
individualized assessment of the defendant and to ensure the provisions 
in this Chapter fulfill rehabilitative ends, distinct from those of 
incarceration, and related issues for comment; and (B) amendments to 
Chapter Seven (Violations of Probation and Supervised Release) to 
provide courts greater discretion to respond to a violation of a 
condition of supervised release and to ensure the provisions in this 
Chapter reflect the differences between probation and supervised 
release, and related issues for comment.
    (2) A multi-part proposed amendment relating to drug offenses, 
including (A) (i) three options for amending Sec.  2D1.1 (Unlawful 
Manufacturing, Importing, Exporting, or Trafficking (Including 
Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy) to set the highest base offense level in the Drug Quantity 
Table at subsection (c) at a lower base offense level, and related 
issues for comment; and (ii) two options for amending Sec.  2D1.1 to 
add a new specific offense characteristic providing for a reduction 
relating to low-level trafficking functions, and related issues for 
comment; (B) (i) amendments to Sec.  2D1.1 to address offenses 
involving ``Ice,'' and related issues for comment; and (ii) two options 
for amending Sec.  2D1.1 to address the purity distinction between 
methamphetamine in ``actual'' form and methamphetamine as part of a 
mixture, and related issues for comment; (C) amendments to Sec.  2D1.1 
to revise the enhancement for misrepresentation of fentanyl and 
fentanyl analogue at subsection (b)(13), and related issues for 
comment; (D) amendments to Sec.  2D1.1 to address the application of 
subsection (b)(1) to machineguns, and a related issue for comment; and 
(E) amendments to the Commentary to Sec.  5C1.2 (Limitation on 
Applicability of Statutory Minimum Sentences in Certain Cases) to 
address the manner by which a defendant may satisfy Sec.  5C1.2(a)(5)'s 
requirement of providing truthful information and

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evidence to the Government, and a related issue for comment.
    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-january-2025.
    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. Supervised Release

    Synopsis of Proposed Amendment: The Sentencing Reform Act of 1984 
establishes a framework for courts to order supervised release to be 
served after a term of imprisonment. See 18 U.S.C. 3583. For certain 
offenses, the court is statutorily required to impose a term of 
supervised release. See id. This framework aims to ``assure that 
[those] who will need post-release supervision will receive it'' while 
``prevent[ing] probation system resources from being wasted on 
supervisory services for releasees who do not need them.'' See S. Rep. 
No. 225, 98th Cong., 1st Sess. 54 (1983); see also Johnson v. United 
States, 529 U.S. 694, 701 (2000) (``Supervised release departed from 
the parole system it replaced by giving district courts the freedom to 
provide postrelease supervision for those, and only those, who needed 
it.'').
    The length of the term of supervised release that a court may 
select depends on the class of the offense of conviction. The term may 
be not more than five years for a Class A or Class B felony, not more 
than three years for a Class C or Class D felony, and not more than one 
year for a Class E felony or a misdemeanor (other than a petty 
offense). See 18 U.S.C. 3583(b). There is an exception for certain sex 
offenses and terrorism offenses, for which the term of supervised 
release may be up to life. See 18 U.S.C. 3583(j) and (k).
    If a court imposes a term of supervised release, the court must 
order certain conditions of supervised release, such as that the 
defendant not commit another crime or unlawfully possess a controlled 
substance during the term, and that the defendant make restitution. See 
18 U.S.C. 3583(d). The court may order other discretionary conditions 
it considers appropriate, as long as the condition meets certain 
criteria. See id. In determining whether to impose a term of supervised 
release and the length of the term and conditions of supervised 
release, the court must consider certain 18 U.S.C. 3553 factors. See 18 
U.S.C. 3583(c).
    Courts are authorized, under certain conditions, to extend or 
terminate a term of supervised release, or modify, enlarge, or reduce 
the conditions thereof. See 18 U.S.C. 3583(f). Before doing so, the 
court must consider the 18 U.S.C. 3553 factors listed above. See id. 
For certain violations, courts are required to revoke supervised 
release. See 18 U.S.C. 3583(g).
    The Sentencing Commission's policies regarding supervised release 
are included in Part D (Supervised Release) of Chapter Five 
(Determining the Sentence) and Part B (Probation and Supervised Release 
Violations) of Chapter Seven (Probation and Supervised Release 
Violations) of the Guidelines Manual. This proposed amendment contains 
two parts revising those policies:
    Part A would amend Part D of Chapter Five, which addresses the 
imposition of a term of supervised release. Issues for comment are also 
provided.
    Part B would amend Chapter Seven, which addresses the procedures 
for handling a violation of the terms of probation and supervised 
release. Issues for comment are also provided.
    The Commission is considering whether to implement one or both 
parts, as they are not mutually exclusive.

(A) Imposition of a Term of Supervised Release

    Synopsis of Proposed Amendment: Chapter Five, Part D (Supervised 
Release) of the Guidelines Manual covers supervised release, including 
the imposition decision itself, the length of a term of supervised 
release, and the conditions of supervised release.
    Section 5D1.1 (Imposition of a Term of Supervised Release) governs 
the imposition of a term of supervised release. Under Sec.  5D1.1(a), a 
court shall order a term of supervised release (1) when it is required 
by statute or (2) when a sentence of more than one year is imposed. In 
any other case, Sec.  5D1.1(b) treats the decision to impose a term of 
supervised release as discretionary. The commentary to Sec.  5D1.1 
describes the factors to consider in determining whether to impose a 
term of supervised release: (1) certain 18 U.S.C. 3553 factors, which 
the court is statutorily required to consider (see 18 U.S.C. 3583(c)); 
(2) an individual's criminal history; (3) whether an individual is an 
abuser of controlled substances or alcohol; and (4) whether an offense 
involved domestic violence or stalking. USSG Sec.  5D1.1 comment. 
(n.3).
    Section 5D1.1(c) provides an exception to the rule in Sec.  
5D1.1(a), directing that ``[t]he court ordinarily should not impose a 
term of supervised release in a case in which supervised release is not 
required by statute and the defendant is a deportable alien who likely 
will be deported after imprisonment.'' However, Application Note 5 
directs that a court should consider imposing a term of supervised 
release if ``it would provide an added measure of deterrence and 
protection based on the facts and circumstances of a particular case.''
    Section 5D1.2 (Term of Supervised Release) governs the length of a 
term of supervised release. First, Sec.  5D1.2(a) sets forth the 
recommended terms of supervised release for each classification of 
offense: (1) two to five years for an individual convicted of a Class A 
or B felony; (2) one to three years for an individual convicted of a 
Class C or D felony; and (3) one year for an individual convicted of a 
Class E felony or a Class A misdemeanor. Second, for offenses involving 
terrorism or a sex offense, Sec.  5D1.2(b) provides for a term of 
supervised release up to life, and a policy statement further directs 
that for a sex offense, as defined in Application Note 1, the statutory 
maximum term of supervised release is

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recommended. Lastly, Sec.  5D1.2(c) instructs that the term of 
supervised release shall not be less than any statutorily required term 
of supervised release.
    The Commentary to Sec.  5D1.2 provides further guidance for setting 
a term of supervised release. Application Note 4 directs that the 
factors to be considered in selecting the length of a term of 
supervised release are the same as those for determining whether to 
impose such a term. Application Note 5 states that courts have 
``authority to terminate or extend a term of supervised release'' and 
encourages courts to ``exercise this authority in appropriate cases.''
    Section 5D1.3 (Conditions of Supervised Release) sets forth the 
mandatory, ``standard,'' ``special,'' and additional conditions of 
supervised release. It provides a framework for courts to use when 
imposing the standard, special, and additional conditions--those 
considered ``discretionary.''
    The Commission has received feedback from commenters that the 
guidelines should provide courts with greater discretion to make 
determinations regarding the imposition of supervised release that are 
based on an individualized assessment of the defendant. Additionally, a 
bipartisan coalition in Congress has sought to address similar 
concerns. See, e.g., Safer Supervision Act of 2023, S.2681, 118th Cong. 
(2023) and H.R. 5005, 118th Cong. (1st Sess. 2023).
    Part A of the proposed amendment seeks to revise Chapter Five, Part 
D to accomplish two goals. The first is to provide courts greater 
discretion to impose a term of supervised release in the manner it 
determines is most appropriate based on an individualized assessment of 
the defendant. The second is to ensure the provisions in Chapter Five 
``fulfill[] rehabilitative ends, distinct from those of 
incarceration.'' United States v. Johnson, 529 U.S. 53, 59 (2000).
    Part A of the proposed amendment would make a number of changes to 
the supervised release provisions in Chapters Five to serve these 
goals.
    First, Part A of the proposed amendment would add introductory 
commentary to Part D of Chapter Five expressing the Commission's view 
that, when making determinations regarding supervised release, courts 
should assess a wide range of factors to ensure its decisions fulfill 
the rehabilitative needs of the defendant and protect the public from 
further crimes of the defendant.
    Second, Part A of the proposed amendment would amend the provisions 
of Sec.  5D1.1 addressing the imposition of a term of supervised 
release. It would remove the requirement that a court impose a term of 
supervised release when a sentence of imprisonment of more than one 
year is imposed, so a court would be required to impose supervised 
release only when required by statute. For cases in which the decision 
whether to impose supervised release is discretionary, the court may 
order a term of supervised release when warranted by an individualized 
assessment of the need for supervision. Additionally, the court should 
state the reason for its decision on the record.
    Third, Part A of the proposed amendment would amend Sec.  5D1.2, 
which addresses the length of the term of supervised release. The 
proposed amendment would remove the provisions requiring a minimum term 
of supervised release of two years for a Class A or B felony and one 
year for a Class C, D, or E felony or Class A misdemeanor. Instead, 
Part A of the proposed amendment would require the court to conduct an 
individualized assessment to determine the length of the term of 
supervised release, which must not exceed the maximum term allowed by 
statute. It would remove the policy statement recommending a supervised 
release term of life for sex offense cases and add a policy statement 
that the court should state on the record its reasons for selecting the 
length of the term of supervised release.
    Fourth, Part A of the proposed amendment would amend Sec.  5D1.3, 
which addresses the conditions of supervised release. It would add a 
provision stating that courts should conduct an individualized 
assessment to determine what discretionary conditions are warranted. It 
brackets the possibility of redesignating ``standard'' conditions as 
``examples of common conditions'' and brackets either that such 
conditions may be warranted in some appropriate cases or may be 
modified, omitted, or expanded in appropriate cases. It would also add 
an example of a ``special'' condition that would require a defendant 
who has not obtained a high school or equivalent diploma to participate 
in a program to obtain such a diploma.
    Finally, Part A of the proposed amendment would add a new policy 
statement at Sec.  5D1.4 (Modification, Early Termination, and 
Extension of Supervised Release (Policy Statement)) addressing a 
court's authority to extend or terminate a term of supervised release 
or modify the conditions thereof. It would encourage a court, as soon 
as practicable after a defendant's release from imprisonment, to 
conduct an individualized assessment to determine whether it is 
warranted to modify, reduce, or enlarge the conditions of supervised 
release. Additionally, any time after the expiration of one year of 
supervised release, it would encourage a court to terminate the 
remaining term of supervision and discharge the defendant if the court 
determines, following consultation with the government and the 
probation officer, that the termination is warranted by the conduct of 
the defendant and the interest of justice. Part A of the proposed 
amendment provides an option to list factors for a court to consider 
when determining whether to terminate supervised release. It would also 
provide that a court, any time before the expiration of a term of 
supervised release, may extend the term in a case in which the maximum 
term was not imposed.
    Conforming changes are also made to Sec.  1B1.10 (Reduction in Term 
of Imprisonment as a Result of Amended Guideline Range (Policy 
Statement)), the Commentary to Sec.  4B1.5 (Repeat and Dangerous Sex 
Offenders Against Minors), Sec.  5B1.3 (Conditions of Probation), Sec.  
5H1.3 (Mental and Emotional Conditions (Policy Statement)), and Sec.  
5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or 
Abuse; Gambling Addiction (Policy Statement)).
    Issues for comment are also provided.
Proposed Amendment
    Chapter Five, Part D is amended by inserting at the beginning the 
following new Introductory Commentary:
``Introductory Commentary
    The Sentencing Reform Act of 1984 requires the court to assess a 
wide range of factors `in determining whether to include a term of 
supervised release, and, if a term of supervised release is to be 
included, in determining the length of the term and the conditions of 
supervised release.' 18 U.S.C. 3583(c). These determinations aim to 
make the imposition and scope of supervised release `dependent on the 
needs of the defendant for supervision.' See S. Rep. No. 225, 98th 
Cong., 1st Sess. 124 (1983). In conducting such an individualized 
assessment, the court can `assure that [those] who will need post-
release supervision will receive it' while `prevent[ing] probation 
system resources from being wasted on supervisory services for 
releasees who do not need them.' Id. at 54; see also Johnson v. United 
States, 529 U.S. 694, 701 (2000) (`Supervised release departed from the 
parole system it replaced by giving district courts the freedom to

[[Page 8971]]

provide postrelease supervision for those, and only those, who needed 
it. . . . Congress aimed, then, to use the district courts' 
discretionary judgment to allocate supervision to those releasees who 
needed it most.'). Supervised release `fulfills rehabilitative ends, 
distinct from those served by incarceration,' United States v. Johnson, 
529 U.S. 53, 59 (2000). Accordingly, a court should consider whether 
the defendant needs supervision in order to ease transition into the 
community or to provide further rehabilitation and whether supervision 
will promote public safety. See 18 U.S.C. 3583(c), 3553(a)(2)(C)); see 
also S. Rep. No. 225, 98th Cong., 1st Sess. 124 (1983) (indicating that 
a `primary goal of [a term of supervised release] is to ease the 
defendant's transition into the community after the service of a long 
prison term for a particularly serious offense, or to provide 
rehabilitation to a defendant who has spent a fairly short period in 
prison for punishment or other purposes but still needs supervision and 
training programs after release').''.
    Section 5D1.1 is amended--
    by striking subsections (a) and (b) as follows:
    ``(a) The court shall order a term of supervised release to follow 
imprisonment--
    (1) when required by statute (see 18 U.S.C. 3583(a)); or
    (2) except as provided in subsection (c), when a sentence of 
imprisonment of more than one year is imposed.
    (b) The court may order a term of supervised release to follow 
imprisonment in any other case. See 18 U.S.C. 3583(a).'';
    and inserting the following new subsections (a) and (b):
    ``(a) The court shall order a term of supervised release to follow 
imprisonment when required by statute (see 18 U.S.C. 3583(a)).
    (b) When a term of supervised release is not required by statute, 
the court should order a term of supervised release to follow 
imprisonment when, and only when, warranted by an individualized 
assessment of the need for supervision.'';
    and by inserting at the end the following new subsection (d):
    ``(d) The court should state on the record the reasons for imposing 
[or not imposing] a term of supervised release.''.
    The Commentary to Sec.  5D1.1 captioned ``Application Notes'' is 
amended--
    by striking Notes 1, 2, and 3 as follows:
    ``1. Application of Subsection (a).--Under subsection (a), the 
court is required to impose a term of supervised release to follow 
imprisonment when supervised release is required by statute or, except 
as provided in subsection (c), when a sentence of imprisonment of more 
than one year is imposed. The court may depart from this guideline and 
not impose a term of supervised release if supervised release is not 
required by statute and the court determines, after considering the 
factors set forth in Note 3, that supervised release is not necessary.
    2. Application of Subsection (b).--Under subsection (b), the court 
may impose a term of supervised release to follow a term of 
imprisonment in any other case, after considering the factors set forth 
in Note 3.
    3. Factors to Be Considered.--
    (A) Statutory Factors.--In determining whether to impose a term of 
supervised release, the court is required by statute to consider, among 
other factors:
    (i) the nature and circumstances of the offense and the history and 
characteristics of the defendant;
    (ii) the need to afford adequate deterrence to criminal conduct, to 
protect the public from further crimes of the defendant, and to provide 
the defendant with needed educational or vocational training, medical 
care, or other correctional treatment in the most effective manner;
    (iii) the need to avoid unwarranted sentence disparities among 
defendants with similar records who have been found guilty of similar 
conduct; and
    (iv) the need to provide restitution to any victims of the offense.
    See 18 U.S.C. 3583(c).
    (B) Criminal History.--The court should give particular 
consideration to the defendant's criminal history (which is one aspect 
of the `history and characteristics of the defendant' in subparagraph 
(A)(i), above). In general, the more serious the defendant's criminal 
history, the greater the need for supervised release.
    (C) Substance Abuse.--In a case in which a defendant sentenced to 
imprisonment is an abuser of controlled substances or alcohol, it is 
highly recommended that a term of supervised release also be imposed. 
See Sec.  5H1.4 (Physical Condition, Including Drug or Alcohol 
Dependence or Abuse; Gambling Addiction).
    (D) 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 supervised release is required by statute. See 18 U.S.C. 
3583(a). 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. 3583(d); Sec.  
5D1.3(a)(3). In any other case involving domestic violence or stalking 
in which the defendant is sentenced to imprisonment, it is highly 
recommended that a term of supervised release also be imposed.'';
    by redesignating Notes 4 and 5 as Notes 5 and 6, respectively;
    and by inserting at the beginning the following new Notes 1, 2, 3, 
and 4:
    ``1. Individualized Assessment.--The statutory framework of 
supervised release aims to `assure that [those] who will need post-
release supervision will receive it' while `prevent[ing] probation 
system resources from being wasted on supervisory services for 
releasees who do not need them.' See S. Rep. No. 225, 98th Cong., 1st 
Sess. 54 (1983). To that end, 18 U.S.C. 3583(c) requires the court to, 
`in determining whether to include a term of supervised release, and, 
if a term of supervised release is to be included, in determining the 
length of the term and the conditions of supervised release,' consider 
the following:
    (A) the nature and circumstances of the offense and the history and 
characteristics of the defendant (18 U.S.C. 3553(a)(1));
    (B) the need to afford adequate deterrence to criminal conduct, to 
protect the public from further crimes of the defendant, and to provide 
the defendant with needed educational or vocational training, medical 
care, or other correctional treatment in the most effective manner (18 
U.S.C. 3553(a)(2)(B)-(D));
    (C) the kinds of sentence and the sentencing range established for 
the applicable category of offense committed by the applicable category 
of defendant as set forth in the guidelines (18 U.S.C. 3553(a)(4));
    (D) any pertinent policy statement issued by the Sentencing 
Commission (18 U.S.C. 3553(a)(5));
    (E) the need to avoid unwarranted sentence disparities among 
defendants with similar records who have been found guilty of similar 
conduct (18 U.S.C. 3553(a)(6)); and
    (F) the need to provide restitution to any victims of the offense 
(18 U.S.C. 3553(a)(7)).
    See 18 U.S.C. 3583(c).
    2. Criminal History.--The court should give particular 
consideration to the defendant's criminal history (which is one aspect 
of the `history and characteristics of the defendant' in Application 
Note 1(A) above). In general, the more serious the defendant's criminal 
history, the greater the need for supervised release.

[[Page 8972]]

    3. Substance Abuse.--In a case in which a defendant sentenced to 
imprisonment is an abuser of controlled substances or alcohol, it is 
highly recommended that a term of supervised release also be imposed. 
See Sec.  5H1.4 (Physical Condition, Including Drug or Alcohol 
Dependence or Abuse; Gambling Addiction).
    4. 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 supervised release is required by statute. See 18 U.S.C. 
3583(a). 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. 3583(d); Sec.  
5D1.3(a)(3). In any other case involving domestic violence or stalking 
in which the defendant is sentenced to imprisonment, it is highly 
recommended that a term of supervised release also be imposed.''.
    Section 5D1.2 is amended--
    by striking subsections (a) and (b) as follows:
    ``(a) Except as provided in subsections (b) and (c), if a term of 
supervised release is ordered, the length of the term shall be:
    (1) At least two years but not more than five years for a defendant 
convicted of a Class A or B felony. See 18 U.S.C. 3583(b)(1).
    (2) At least one year but not more than three years for a defendant 
convicted of a Class C or D felony. See 18 U.S.C. 3583(b)(2).
    (3) One year for a defendant convicted of a Class E felony or a 
Class A misdemeanor. See 18 U.S.C. 3583(b)(3).
    (b) Notwithstanding subdivisions (a)(1) through (3), the length of 
the term of supervised release shall be not less than the minimum term 
of years specified for the offense under subdivisions (a)(1) through 
(3) and may be up to life, if the offense is--
    (1) any offense listed in 18 U.S.C. 2332b(g)(5)(B), the commission 
of which resulted in, or created a foreseeable risk of, death or 
serious bodily injury to another person; or
    (2) a sex offense.
    (Policy Statement) If the instant offense of conviction is a sex 
offense, however, the statutory maximum term of supervised release is 
recommended.'';
    by inserting at the beginning the following new subsection (a):
    ``(a) If a term of supervised release is ordered, the court shall 
conduct an individualized assessment to determine the length of the 
term, not to exceed the relevant statutory maximum term.'';
    by redesignating subsection (c) as subsection (b);
    and by inserting at the end the following new subsection (c):
    ``(c) The court should state on the record the reasons for the 
length of the term imposed.''.
    The Commentary to Sec.  5D1.2 captioned ``Application Notes'' is 
amended--
    by striking Note 1 as follows:
    ``1. Definitions.--For purposes of this guideline:
    `Sex offense' means (A) an offense, perpetrated against a minor, 
under (i) chapter 109A of title 18, United States Code; (ii) chapter 
110 of such title, not including a recordkeeping offense; (iii) chapter 
117 of such title, not including transmitting information about a minor 
or filing a factual statement about an alien individual; (iv) an 
offense under 18 U.S.C. 1201; or (v) an offense under 18 U.S.C. 1591; 
or (B) an attempt or a conspiracy to commit any offense described in 
subdivisions (A)(i) through (v) of this note. Such term does not 
include an offense under 18 U.S.C. 2250 (Failure to register).
    `Minor' means (A) an individual who had not attained the age of 18 
years; (B) an individual, whether fictitious or not, who a law 
enforcement officer represented to a participant (i) had not attained 
the age of 18 years; and (ii) could be provided for the purposes of 
engaging in sexually explicit conduct; or (C) an undercover law 
enforcement officer who represented to a participant that the officer 
had not attained the age of 18 years.'';
    by redesignating Notes 2, 3, and 4 as Notes 1, 2, and 3, 
respectively;
    in Note 1 (as so redesignated) by striking ``shall be'' and 
inserting ``is'';
    in Note 2 (as so redesignated) by striking ``or the guidelines'';
    in Note 3 (as so redesignated) by striking ``Factors Considered.--
The factors to be considered in determining the length of a term of 
supervised release'' and inserting ``Individualized Assessment.--When 
conducting an individualized assessment to determine the length of a 
term of supervised release, the factors to be considered''; by striking 
``Application Note 3'' and inserting ``Application Note 1''; and by 
striking ``long enough'' and inserting ``sufficient'';
    by striking Notes 5 and 6 as follows:
    ``5. Early Termination and Extension.--The court has authority to 
terminate or extend a term of supervised release. See 18 U.S.C. 
3583(e)(1), (2). The court is encouraged to exercise this authority in 
appropriate cases. The prospect of exercising this authority is a 
factor the court may wish to consider in determining the length of a 
term of supervised release. For example, the court may wish to consider 
early termination of supervised release if the defendant is an abuser 
of narcotics, other controlled substances, or alcohol who, while on 
supervised release, successfully completes a treatment program, thereby 
reducing the risk to the public from further crimes of the defendant.
    6. Application of Subsection (c).--Subsection (c) specifies how a 
statutorily required minimum term of supervised release may affect the 
minimum term of supervised release provided by the guidelines.
    For example, if subsection (a) provides a range of two years to 
five years, but the relevant statute requires a minimum term of 
supervised release of three years and a maximum term of life, the term 
of supervised release provided by the guidelines is restricted by 
subsection (c) to three years to five years. Similarly, if subsection 
(a) provides a range of two years to five years, but the relevant 
statute requires a minimum term of supervised release of five years and 
a maximum term of life, the term of supervised release provided by the 
guidelines is five years.
    The following example illustrates the interaction of subsections 
(a) and (c) when subsection (b) is also involved. In this example, 
subsection (a) provides a range of two years to five years; the 
relevant statute requires a minimum term of supervised release of five 
years and a maximum term of life; and the offense is a sex offense 
under subsection (b). The effect of subsection (b) is to raise the 
maximum term of supervised release from five years (as provided by 
subsection (a)) to life, yielding a range of two years to life. The 
term of supervised release provided by the guidelines is then 
restricted by subsection (c) to five years to life. In this example, a 
term of supervised release of more than five years would be a guideline 
sentence. In addition, subsection (b) contains a policy statement 
recommending that the maximum--a life term of supervised release--be 
imposed.'';
    and by inserting at the end the following new Note 4:
    ``4. Early Termination and Extension.--The court has authority to 
terminate or extend a term of supervised release. See 18 U.S.C. 
3583(e)(1), (2); Sec.  5D1.4 (Modification, Early Termination, and 
Extension of Supervised Release (Policy Statement)).''.
    The Commentary to Sec.  5D1.2 is amended by striking the Commentary 
captioned ``Background'' in its entirety as follows:
    ``Background: This section specifies the length of a term of 
supervised

[[Page 8973]]

release that is to be imposed. Subsection (c) applies to statutes, such 
as the Anti-Drug Abuse Act of 1986, that require imposition of a 
specific minimum term of supervised release.''.
    Section 5D1.3 is amended--
    by striking subsections (b), (c), and (d) as follows:
    ``(b) Discretionary Conditions
    The court may impose other conditions of supervised release to the 
extent that such conditions (1) are reasonably related to (A) the 
nature and circumstances of the offense and the history and 
characteristics of the defendant; (B) the need for the sentence imposed 
to afford adequate deterrence to criminal conduct; (C) the need to 
protect the public from further crimes of the defendant; and (D) the 
need to provide the defendant with needed educational or vocational 
training, medical care, or other correctional treatment in the most 
effective manner; and (2) involve no greater deprivation of liberty 
than is reasonably necessary for the purposes set forth above and are 
consistent with any pertinent policy statements issued by the 
Sentencing Commission.
    (c) `Standard' Conditions (Policy Statement)
    The following `standard' conditions are recommended for supervised 
release. Several of the conditions are expansions of the conditions 
required by statute:
    (1) The defendant shall report to the probation office in the 
federal judicial district where he or she is authorized to reside 
within 72 hours of release from imprisonment, unless the probation 
officer instructs the defendant to report to a different probation 
office or within a different time frame.
    (2) After initially reporting to the probation office, the 
defendant will receive instructions from the court or the probation 
officer about how and when to report to the probation officer, and the 
defendant shall report to the probation officer as instructed.
    (3) The defendant shall not knowingly leave the federal judicial 
district where he or she is authorized to reside without first getting 
permission from the court or the probation officer.
    (4) The defendant shall answer truthfully the questions asked by 
the probation officer.
    (5) The defendant shall live at a place approved by the probation 
officer. If the defendant plans to change where he or she lives or 
anything about his or her living arrangements (such as the people the 
defendant lives with), the defendant shall notify the probation officer 
at least 10 days before the change. If notifying the probation officer 
at least 10 days in advance is not possible due to unanticipated 
circumstances, the defendant shall notify the probation officer within 
72 hours of becoming aware of a change or expected change.
    (6) The defendant shall allow the probation officer to visit the 
defendant at any time at his or her home or elsewhere, and the 
defendant shall permit the probation officer to take any items 
prohibited by the conditions of the defendant's supervision that he or 
she observes in plain view.
    (7) The defendant shall work full time (at least 30 hours per week) 
at a lawful type of employment, unless the probation officer excuses 
the defendant from doing so. If the defendant does not have full-time 
employment he or she shall try to find full-time employment, unless the 
probation officer excuses the defendant from doing so. If the defendant 
plans to change where the defendant works or anything about his or her 
work (such as the position or the job responsibilities), the defendant 
shall notify the probation officer at least 10 days before the change. 
If notifying the probation officer in advance is not possible due to 
unanticipated circumstances, the defendant shall notify the probation 
officer within 72 hours of becoming aware of a change or expected 
change.
    (8) The defendant shall not communicate or interact with someone 
the defendant knows is engaged in criminal activity. If the defendant 
knows someone has been convicted of a felony, the defendant shall not 
knowingly communicate or interact with that person without first 
getting the permission of the probation officer.
    (9) If the defendant is arrested or questioned by a law enforcement 
officer, the defendant shall notify the probation officer within 72 
hours.
    (10) The defendant shall not own, possess, or have access to a 
firearm, ammunition, destructive device, or dangerous weapon (i.e., 
anything that was designed, or was modified for, the specific purpose 
of causing bodily injury or death to another person, such as nunchakus 
or tasers).
    (11) The defendant shall not act or make any agreement with a law 
enforcement agency to act as a confidential human source or informant 
without first getting the permission of the court.
    (12) If the probation officer determines that the defendant poses a 
risk to another person (including an organization), the probation 
officer may require the defendant to notify the person about the risk 
and the defendant shall comply with that instruction. The probation 
officer may contact the person and confirm that the defendant has 
notified the person about the risk.
    (13) The defendant shall follow the instructions of the probation 
officer related to the conditions of supervision.
    (d) `Special' Conditions (Policy Statement)
    The following `special' conditions of supervised release are 
recommended in the circumstances described and, in addition, may 
otherwise be appropriate in particular cases:
    (1) Support of Dependents
    (A) If the defendant has one or more dependents--a condition 
specifying that the defendant shall support his or her dependents.
    (B) If the defendant is ordered by the government to make child 
support payments or to make payments to support a person caring for a 
child--a condition specifying that the defendant shall make the 
payments and comply with the other terms of the order.
    (2) Debt Obligations
    If an installment schedule of payment of restitution or a fine is 
imposed--a condition prohibiting the defendant from incurring new 
credit charges or opening additional lines of credit without approval 
of the probation officer unless the defendant is in compliance with the 
payment schedule.
    (3) Access to Financial Information
    If the court imposes an order of restitution, forfeiture, or notice 
to victims, or orders the defendant to pay a fine--a condition 
requiring the defendant to provide the probation officer access to any 
requested financial information.
    (4) Substance Abuse
    If the court has reason to believe that the defendant is an abuser 
of narcotics, other controlled substances or alcohol--(A) a condition 
requiring the defendant to participate in a program approved by the 
United States Probation Office for substance abuse, which program may 
include testing to determine whether the defendant has reverted to the 
use of drugs or alcohol; and (B) a condition specifying that the 
defendant shall not use or possess alcohol.
    (5) Mental Health Program Participation
    If the court has reason to believe that the defendant is in need of 
psychological or psychiatric treatment--a condition requiring that the 
defendant participate in a mental health program approved by the United 
States Probation Office.
    (6) Deportation
    If (A) the defendant and the United States entered into a 
stipulation of deportation pursuant to section 238(c)(5) of the 
Immigration and Nationality Act (8 U.S.C. 1228(c)(5)*); or

[[Page 8974]]

(B) in the absence of a stipulation of deportation, if, after notice 
and hearing pursuant to such section, the Attorney General demonstrates 
by clear and convincing evidence that the alien is deportable--a 
condition ordering deportation by a United States district court or a 
United States magistrate judge.
    * So in original. Probably should be 8 U.S.C. 1228(d)(5).
    (7) Sex Offenses
    If the instant offense of conviction is a sex offense, as defined 
in Application Note 1 of the Commentary to Sec.  5D1.2 (Term of 
Supervised Release)--
    (A) A condition requiring the defendant to participate in a program 
approved by the United States Probation Office for the treatment and 
monitoring of sex offenders.
    (B) A condition limiting the use of a computer or an interactive 
computer service in cases in which the defendant used such items.
    (C) A condition requiring the defendant to submit to a search, at 
any time, with or without a warrant, and by any law enforcement or 
probation officer, of the defendant's person and any property, house, 
residence, vehicle, papers, computer, other electronic communication or 
data storage devices or media, and effects upon reasonable suspicion 
concerning a violation of a condition of supervised release or unlawful 
conduct by the defendant, or by any probation officer in the lawful 
discharge of the officer's supervision functions.
    (8) Unpaid Restitution, Fines, or Special Assessments
    If the defendant has any unpaid amount of restitution, fines, or 
special assessments, the defendant shall notify the probation officer 
of any material change in the defendant's economic circumstances that 
might affect the defendant's ability to pay.
    (e) Additional Conditions (Policy Statement)
    The following `special conditions' may be appropriate on a case-by-
case basis:
    (1) Community Confinement
    Residence in a community treatment center, halfway house or similar 
facility may be imposed as a condition of supervised release. See Sec.  
5F1.1 (Community Confinement).
    (2) Home Detention
    Home detention may be imposed as a condition of supervised release, 
but only as a substitute for imprisonment. See Sec.  5F1.2 (Home 
Detention).
    (3) Community Service
    Community service may be imposed as a condition of supervised 
release. See Sec.  5F1.3 (Community Service).
    (4) Occupational Restrictions
    Occupational restrictions may be imposed as a condition of 
supervised release. See Sec.  5F1.5 (Occupational Restrictions).
    (5) Curfew
    A condition imposing a curfew may be imposed if the court concludes 
that restricting the defendant to his place of residence during evening 
and nighttime hours is necessary to protect the public from crimes that 
the defendant might commit during those hours, or to assist in the 
rehabilitation of the defendant. Electronic monitoring may be used as a 
means of surveillance to ensure compliance with a curfew order.
    (6) Intermittent Confinement
    Intermittent confinement (custody for intervals of time) may be 
ordered as a condition of supervised release during the first year of 
supervised release, but only for a violation of a condition of 
supervised release in accordance with 18 U.S.C. 3583(e)(2) and only 
when facilities are available. See Sec.  5F1.8 (Intermittent 
Confinement).'';
    and inserting the following new subsection (b):
    ``(b) Discretionary Conditions
    (1) In General.--The court should conduct an individualized 
assessment to determine what, if any, other conditions of supervised 
release are warranted.
    Such conditions are warranted to the extent that they (A) are 
reasonably related to (i) the nature and circumstances of the offense 
and the history and characteristics of the defendant; (ii) the need for 
the sentence imposed to afford adequate deterrence to criminal conduct; 
(iii) the need to protect the public from further crimes of the 
defendant; and (iv) the need to provide the defendant with needed 
educational or vocational training, medical care, or other correctional 
treatment in the most effective manner; and (B) involve no greater 
deprivation of liberty than is reasonably necessary for the purposes 
set forth above and are consistent with any pertinent policy statements 
issued by the Sentencing Commission. See 18 U.S.C. 3583(d).
    (2) [`Standard'][Examples of Common] Conditions (Policy Statement)
    The following are [`standard' conditions of supervised release, 
which the court may modify, expand, or omit in appropriate cases] 
[examples of common conditions of supervised release that may be 
warranted in appropriate cases][. Several of the conditions are 
expansions of the conditions required by statute]:
    (A) The defendant shall report to the probation office in the 
federal judicial district where he or she is authorized to reside 
within 72 hours of release from imprisonment, unless the probation 
officer instructs the defendant to report to a different probation 
office or within a different time frame.
    (B) After initially reporting to the probation office, the 
defendant will receive instructions from the court or the probation 
officer about how and when to report to the probation officer, and the 
defendant shall report to the probation officer as instructed.
    (C) The defendant shall not knowingly leave the federal judicial 
district where he or she is authorized to reside without first getting 
permission from the court or the probation officer.
    (D) The defendant shall answer truthfully the questions asked by 
the probation officer.
    (E) The defendant shall live at a place approved by the probation 
officer. If the defendant plans to change where he or she lives or 
anything about his or her living arrangements (such as the people the 
defendant lives with), the defendant shall notify the probation officer 
at least 10 days before the change. If notifying the probation officer 
at least 10 days in advance is not possible due to unanticipated 
circumstances, the defendant shall notify the probation officer within 
72 hours of becoming aware of a change or expected change.
    (F) The defendant shall allow the probation officer to visit the 
defendant at any time at his or her home or elsewhere, and the 
defendant shall permit the probation officer to take any items 
prohibited by the conditions of the defendant's supervision that he or 
she observes in plain view.
    (G) The defendant shall work full time (at least 30 hours per week) 
at a lawful type of employment, unless the probation officer excuses 
the defendant from doing so. If the defendant does not have full-time 
employment he or she shall try to find full-time employment, unless the 
probation officer excuses the defendant from doing so. If the defendant 
plans to change where the defendant works or anything about his or her 
work (such as the position or the job responsibilities), the defendant 
shall notify the probation officer at least 10 days before the change. 
If notifying the probation officer in advance is not possible due to 
unanticipated circumstances, the defendant shall notify the probation 
officer within 72 hours of becoming aware of a change or expected 
change.
    (H) The defendant shall not communicate or interact with someone 
the defendant knows is engaged in criminal activity. If the defendant 
knows someone has been convicted of a felony, the defendant shall not

[[Page 8975]]

knowingly communicate or interact with that person without first 
getting the permission of the probation officer.
    (I) If the defendant is arrested or questioned by a law enforcement 
officer, the defendant shall notify the probation officer within 72 
hours.
    (J) The defendant shall not own, possess, or have access to a 
firearm, ammunition, destructive device, or dangerous weapon (i.e., 
anything that was designed, or was modified for, the specific purpose 
of causing bodily injury or death to another person, such as nunchakus 
or tasers).
    (K) The defendant shall not act or make any agreement with a law 
enforcement agency to act as a confidential human source or informant 
without first getting the permission of the court.
    (L) If the probation officer determines that the defendant poses a 
risk to another person (including an organization), the probation 
officer may require the defendant to notify the person about the risk 
and the defendant shall comply with that instruction. The probation 
officer may contact the person and confirm that the defendant has 
notified the person about the risk.
    (M) The defendant shall follow the instructions of the probation 
officer related to the conditions of supervision.
    (3) `Special' Conditions (Policy Statement)
    One or more conditions from the following non-exhaustive list of 
`special' conditions of supervised release may be appropriate in a 
particular case, including in the circumstances described:
    (A) Support of Dependents
    (i) If the defendant has one or more dependents--a condition 
specifying that the defendant shall support his or her dependents.
    (ii) If the defendant is ordered by the government to make child 
support payments or to make payments to support a person caring for a 
child--a condition specifying that the defendant shall make the 
payments and comply with the other terms of the order.
    (B) Debt Obligations
    If an installment schedule of payment of restitution or a fine is 
imposed--a condition prohibiting the defendant from incurring new 
credit charges or opening additional lines of credit without approval 
of the probation officer unless the defendant is in compliance with the 
payment schedule.
    (C) Access to Financial Information
    If the court imposes an order of restitution, forfeiture, or notice 
to victims, or orders the defendant to pay a fine--a condition 
requiring the defendant to provide the probation officer access to any 
requested financial information.
    (D) Substance Abuse
    If the court has reason to believe that the defendant is an abuser 
of narcotics, other controlled substances or alcohol--(i) a condition 
requiring the defendant to participate in a program approved by the 
United States Probation Office for substance abuse, which program may 
include testing to determine whether the defendant has reverted to the 
use of drugs or alcohol; and (ii) a condition specifying that the 
defendant shall not use or possess alcohol.
    (E) Mental Health Program Participation
    If the court has reason to believe that the defendant is in need of 
psychological or psychiatric treatment--a condition requiring that the 
defendant participate in a mental health program approved by the United 
States Probation Office.
    (F) Deportation
    If (i) the defendant and the United States entered into a 
stipulation of deportation pursuant to section 238(c)(5) of the 
Immigration and Nationality Act (8 U.S.C. 1228(c)(5)*); or (ii) in the 
absence of a stipulation of deportation, if, after notice and hearing 
pursuant to such section, the Attorney General demonstrates by clear 
and convincing evidence that the alien is deportable--a condition 
ordering deportation by a United States district court or a United 
States magistrate judge.
    * So in original. Probably should be 8 U.S.C. 1228(d)(5).
    (G) Sex Offenses
    If the instant offense of conviction is a sex offense--
    (i) A condition requiring the defendant to participate in a program 
approved by the United States Probation Office for the treatment and 
monitoring of sex offenders.
    (ii) A condition limiting the use of a computer or an interactive 
computer service in cases in which the defendant used such items.
    (iii) A condition requiring the defendant to submit to a search, at 
any time, with or without a warrant, and by any law enforcement or 
probation officer, of the defendant's person and any property, house, 
residence, vehicle, papers, computer, other electronic communication or 
data storage devices or media, and effects upon reasonable suspicion 
concerning a violation of a condition of supervised release or unlawful 
conduct by the defendant, or by any probation officer in the lawful 
discharge of the officer's supervision functions.
    (H) Unpaid Restitution, Fines, or Special Assessments
    If the defendant has any unpaid amount of restitution, fines, or 
special assessments, the defendant shall notify the probation officer 
of any material change in the defendant's economic circumstances that 
might affect the defendant's ability to pay.
    (I) High School or Equivalent Diploma
    If the defendant has not obtained a high school or equivalent 
diploma, a condition requiring the defendant to participate in a 
program to obtain such a diploma.
    (J) Community Confinement
    Residence in a community treatment center, halfway house or similar 
facility may be imposed as a condition of supervised release. See Sec.  
5F1.1 (Community Confinement).
    (K) Home Detention
    Home detention may be imposed as a condition of supervised release, 
but only as a substitute for imprisonment. See Sec.  5F1.2 (Home 
Detention).
    (L) Community Service
    Community service may be imposed as a condition of supervised 
release. See Sec.  5F1.3 (Community Service).
    (M) Occupational Restrictions
    Occupational restrictions may be imposed as a condition of 
supervised release. See Sec.  5F1.5 (Occupational Restrictions).
    (N) Curfew
    A condition imposing a curfew may be imposed if the court concludes 
that restricting the defendant to his place of residence during evening 
and nighttime hours is necessary to protect the public from crimes that 
the defendant might commit during those hours, or to assist in the 
rehabilitation of the defendant. Electronic monitoring may be used as a 
means of surveillance to ensure compliance with a curfew order.
    (O) Intermittent Confinement
    Intermittent confinement (custody for intervals of time) may be 
ordered as a condition of supervised release during the first year of 
supervised release, but only for a violation of a condition of 
supervised release in accordance with 18 U.S.C. 3583(e)(2) and only 
when facilities are available. See Sec.  5F1.8 (Intermittent 
Confinement).''.
    The Commentary to Sec.  5D1.3 captioned ``Applications Notes'' is 
amended--
    in the caption by striking ``Note'' and inserting ``Notes'';
    by redesignating Note 1 as Note 2;
    by inserting at the beginning the following new Note 1:
    ``1. Individualized Assessment.--When conducting an individualized 
assessment under this section, the court must consider the same factors 
used to determine whether to impose a term of

[[Page 8976]]

supervised release, and shall impose conditions of supervision not 
required by statute only to the extent such conditions meet the 
requirements listed at 18 U.S.C. 3583(d). See 18 U.S.C. 3583(c), (d); 
Application Note 1 to Sec.  5D1.1 (Imposition of a Term of Supervised 
Release).'';
    in Note 2 (as so redesignated) by striking ``(c)(4)'' both places 
it appears and inserting ``(b)(2)(D)'';
    and by inserting at the end the following new Note 3:
    ``3. Application of Subsection (b)(3)(G).--For purposes of 
subsection (b)(3)(G):
    `Sex offense' means (A) an offense, perpetrated against a minor, 
under (i) chapter 109A of title 18, United States Code; (ii) chapter 
110 of such title, not including a recordkeeping offense; (iii) chapter 
117 of such title, not including transmitting information about a minor 
or filing a factual statement about an alien individual; (iv) an 
offense under 18 U.S.C. 1201; or (v) an offense under 18 U.S.C. 1591; 
or (B) an attempt or a conspiracy to commit any offense described in 
subdivisions (A)(i) through (v) of this note. Such term does not 
include an offense under 18 U.S.C. 2250 (Failure to register).
    `Minor' means (A) an individual who had not attained the age of 18 
years; (B) an individual, whether fictitious or not, who a law 
enforcement officer represented to a participant (i) had not attained 
the age of 18 years; and (ii) could be provided for the purposes of 
engaging in sexually explicit conduct; or (C) an undercover law 
enforcement officer who represented to a participant that the officer 
had not attained the age of 18 years.''.
    Chapter Five, Part D is amended by inserting at the end the 
following new Sec.  5D1.4:
    ``Sec.  5D1.4. Modification, Early Termination, and Extension of 
Supervised Release (Policy Statement)
    (a) Modification of Conditions.--At any time prior to the 
expiration or termination of the term of supervised release, the court 
[should][may] modify, reduce, or enlarge the conditions of supervised 
release whenever warranted by an individualized assessment of the 
appropriateness of existing conditions. See 18 U.S.C. 3583(e)(2). The 
court is encouraged to conduct such an assessment as soon as 
practicable after the defendant's release from imprisonment.
    (b) Early Termination.--Any time after the expiration of one year 
of supervised release and after an individualized assessment of the 
need for ongoing supervision, the court [should][may] terminate the 
remaining term of supervision and discharge the defendant if the court 
determines, following consultation with the government and the 
probation officer, that the termination is warranted by the conduct of 
the defendant and the interest of justice. See 18 U.S.C. 3583(e)(1).
    [In determining whether termination is warranted, the court should 
consider the following non-exhaustive list of factors:
    (1) any history of court-reported violations over the term of 
supervision;
    (2) the ability of the defendant to lawfully self-manage beyond the 
period of supervision;
    (3) the defendant's substantial compliance with all conditions of 
supervision;
    (4) the defendant's engagement in appropriate prosocial activities 
and the existence or lack of prosocial support to remain lawful beyond 
the period of supervision;
    (5) a demonstrated reduction in risk level over the period of 
supervision; and
    (6) whether termination will jeopardize public safety, as evidenced 
by the nature of the defendant's offense, the defendant's criminal 
history, the defendant's record while incarcerated, the defendant's 
efforts to reintegrate into the community and avoid recidivism, any 
statements or information provided by the victims of the offense, and 
other factors the court finds relevant.]
    The court is encouraged to conduct such assessments upon the 
expiration of one year of supervision and periodically throughout the 
term of supervision thereafter.
    (c) Extending a Term of Supervised Release.--The court may, at any 
time prior to the expiration or termination of a term of supervised 
release, extend the term of supervised release if less than the maximum 
authorized term of supervised release was previously imposed and the 
extension is warranted by an individualized assessment of the need for 
further supervision. See 18 U.S.C. 3583(e)(2).
Commentary
    Application Notes:
    1. Individualized Assessment.--When making an individualized 
assessment under this section, the factors to be considered are the 
same factors used to determine whether to impose a term of supervised 
release. See 18 U.S.C. 3583(c), (e); Application Note 1 to Sec.  5D1.1 
(Imposition of a Term of Supervised Release). [In particular, the court 
is encouraged to consider (A) the defendant's needs and risks and the 
conditions of supervised release imposed at the original sentencing; 
and (B) the defendant's conduct in custody, post-release circumstances, 
and the availability of resources required for compliance with 
conditions (e.g., the availability of treatment facilities).]
    2. Extension or Modification of Conditions.--In a case involving an 
extension of the term or a modification of the conditions of supervised 
release, the court shall comply with Rule 32.1 (Revoking or Modifying 
Probation or Supervised Release) of the Federal Rules of Criminal 
Procedure and the provisions applicable to the initial setting of the 
terms and conditions of post-release supervision. See 18 U.S.C. 
3583(e)(2). In both situations, the Commission encourages the court to 
make its best effort to ensure that any victim of the offense [and of 
any violation of a condition of supervised release] is reasonably, 
accurately, and timely notified, and provided, to the extent 
practicable, with an opportunity to be reasonably heard, unless any 
such victim previously requested not to be notified.
    3. Application of Subsection (c).--Subsection (c) addresses a 
court's authority to extend a term of supervised release. In some 
cases, extending a term may be more appropriate than taking other 
measures, such as revoking the supervised release. For example, if a 
defendant violates a condition of supervised release, a court should 
determine whether extending the term would be more appropriate than 
revocation.''.
    The Commentary to Sec.  1B1.10 captioned ``Application Notes'' is 
amended in Note 8(B) by inserting after ``18 U.S.C. 3583(e)(1).'' the 
following: ``See Sec.  5D1.4 (Modification, Early Termination, and 
Extension of Supervised Release (Policy Statement)).''.
    [The Commentary to Sec.  4B1.5 captioned ``Application Notes'' is 
amended by striking Note 5 as follows:
    ``5. Treatment and Monitoring.--
    (A) Recommended Maximum Term of Supervised Release.--The statutory 
maximum term of supervised release is recommended for offenders 
sentenced under this guideline.
    (B) Recommended Conditions of Probation and Supervised Release.--
Treatment and monitoring are important tools for supervising offenders 
and should be considered as special conditions of any term of probation 
or supervised release that is imposed.''.]
    [The Commentary to Sec.  4B1.5 captioned ``Application Notes'' is 
amended in Note 5--
    by striking the following:
    ``Treatment and Monitoring.--

[[Page 8977]]

    (A) Recommended Maximum Term of Supervised Release.--The statutory 
maximum term of supervised release is recommended for offenders 
sentenced under this guideline.
    (B) Recommended Conditions of Probation and Supervised Release.--
Treatment and monitoring are important tools for supervising offenders 
and should be considered as special conditions of any term of probation 
or supervised release that is imposed.'';
    and by inserting the following:
    ``Treatment and Monitoring.--Treatment and monitoring are important 
tools for supervising offenders and may be considered as special 
conditions of any term of probation or supervised release that is 
imposed.''.]
    Section 5B1.3(d)(7) is amended by striking ``, as defined in 
Application Note 1 of the Commentary to Sec.  5D1.2 (Term of Supervised 
Release)''.
    The Commentary to Sec.  5B1.3 captioned ``Application Note'' is 
amended--
    in the caption by striking ``Note'' and inserting ``Notes'';
    and by inserting at the end the following new Note 2:
    ``2. Application of Subsection (d)(7).--For purposes of subsection 
(d)(7):
    `Sex offense' means (A) an offense, perpetrated against a minor, 
under (i) chapter 109A of title 18, United States Code; (ii) chapter 
110 of such title, not including a recordkeeping offense; (iii) chapter 
117 of such title, not including transmitting information about a minor 
or filing a factual statement about an alien individual; (iv) an 
offense under 18 U.S.C. 1201; or (v) an offense under 18 U.S.C. 1591; 
or (B) an attempt or a conspiracy to commit any offense described in 
subdivisions (A)(i) through (v) of this note. Such term does not 
include an offense under 18 U.S.C. 2250 (Failure to register).
    `Minor' means (A) an individual who had not attained the age of 18 
years; (B) an individual, whether fictitious or not, who a law 
enforcement officer represented to a participant (i) had not attained 
the age of 18 years; and (ii) could be provided for the purposes of 
engaging in sexually explicit conduct; or (C) an undercover law 
enforcement officer who represented to a participant that the officer 
had not attained the age of 18 years.''.
    Section 5H1.3 is amended in the paragraph that begins ``Mental and 
emotional conditions may be relevant in determining the conditions'' by 
striking ``5D1.3(d)(5)'' and inserting ``5D1.3(b)(3)(E)''.
    Section 5H1.4 is amended in the paragraph that begins ``Drug or 
alcohol dependence'' by striking ``Sec.  5D1.3(d)(4)'' and inserting 
``Sec.  5D1.3(b)(3)(D)''.
Issues for Comment
    1. The Commission has received feedback that courts should be 
afforded more discretion to tailor their supervised release decisions 
based on an individualized assessment of the defendant. At the same 
time, the Commission has received feedback that courts and probation 
officers would benefit from more guidance concerning the imposition, 
length, and conditions of supervised release.
    (A) Part A of the proposed amendment would add language throughout 
Chapter Five, Part D (Supervised Release) directing courts that 
supervised release decisions should be based on an ``individualized 
assessment'' of the statutory factors listed in 18 U.S.C. 3583(c)-(e) 
and remove recommended minimum terms of supervised release. The 
Commission seeks comment on whether the inclusion of an individualized 
assessment based on statutory factors is sufficient to provide both 
discretion and useful guidance.
    (B) Part A of the proposed amendment would maintain the Commentary 
to Sec.  5D1.1 (Imposition of a Term of Supervised Release) that 
directs courts to pay particular attention to a defendant's criminal or 
substance abuse history. In addition, new proposed policy statement at 
Sec.  5D1.4 (Modification, Early Termination, and Extension of 
Supervised Release (Policy Statement)) includes as a bracketed option a 
non-exhaustive list of factors that a court should consider in 
determining whether early termination of supervised release is 
warranted. The Commission seeks comment on whether such guidance should 
be retained or deleted and whether similar guidance should be included 
elsewhere. If the Commission provides further guidance, what should 
that guidance be?
    (C) Is there any other approach the Commission should consider to 
provide courts with appropriate discretion while also including useful 
guidance, either throughout Chapter Five, Part D, or for certain 
guideline provisions?
    2. Section 5D1.1(c) instructs that ``[t]he court ordinarily should 
not impose a term of supervised release in a case in which supervised 
release is not required by statute and the defendant is a deportable 
alien who likely will be deported after imprisonment.'' The Commission 
has received feedback that imposition of a term of supervised release 
in such cases varies substantially by jurisdiction, may be excessive, 
and may divert resources. Should the Commission amend Sec.  5D1.1(c) to 
further discourage the imposition of supervised release for individuals 
who are likely to be deported?
    3. In Sec.  5D1.4, Part A of the proposed amendment provides an 
option to include a non-exhaustive list of factors for courts to 
consider when determining whether early termination is warranted. These 
factors are drawn from the Post-Conviction Supervision Policies in the 
Guide to Judiciary Policy (Vol. 8E, Ch. 3, Sec.  360.20, available at 
https://www.uscourts.gov/file/78805/download) and the Safer Supervision 
Act--a bipartisan bill introduced in the Senate and House of 
Representatives in the 118th Congress that would have amended 18 U.S.C. 
3583. See S. 2861, H.R. 5005. Are the listed factors appropriate? 
Should the Commission omit or amend any of the listed factors, or 
should it include other specific factors?
    4. The First Step Act of 2018 (FSA), Public Law 115--391, allows 
individuals in custody who successfully complete evidence-based 
recidivism reduction programming or productive activities to earn time 
credits. See 18 U.S.C. 3632(d)(4)(A). How those time credits are 
applied may depend on whether the defendant's sentence includes a term 
of supervised release. Specifically, the FSA provides ``[i]f the 
sentencing court included as a part of the prisoner's sentence a 
requirement that the prisoner be placed on a term of supervised release 
after imprisonment pursuant to [18 U.S.C. 3583], the Director of the 
Bureau of Prisons may transfer the prisoner to begin any such term of 
supervised release at an earlier date, not to exceed 12 months, based 
on the application of time credits under [18 U.S.C. 3632].'' 18 U.S.C. 
3624(g)(3).
    The Commission seeks comment on whether and how the changes to 
supervised release set forth in Part A of the proposed amendment may 
impact defendants' eligibility to benefit from the FSA earned time 
credits. Should the Commission make any additional or different changes 
to Chapter Five to avoid any unintended consequences that would impact 
a defendant's eligibility? If so, what changes should be made?
    5. At Sec.  5D1.3 (Conditions of Supervised Release), Part A of the 
proposed amendment retains two general categories of discretionary 
conditions of supervised release without amending their substance--
``standard'' and ``special'' conditions. In doing so, the Commission 
brackets language that would alternatively refer to ``standard'' 
conditions as ``examples of common conditions that may be warranted in 
appropriate cases.'' Part A of the proposed amendment also includes in

[[Page 8978]]

its listing of ``special'' conditions those conditions that currently 
are labeled as ``Additional Conditions.'' The Commission seeks comment 
on these proposals and on whether another approach is warranted.
    6. Part A of the proposed amendment would establish a new policy 
statement at Sec.  5D1.4 (Modification, Early Termination, and 
Extension of Supervised Release (Policy Statement)), which, among other 
things, addresses a court's determination whether to terminate a term 
of supervised release. The Commission seeks comment on whether it 
should provide that the completion of reentry programs (more 
information available at https://www.ussc.gov/education/problem-solving-court-resources), such as the Supervision to Aid Reentry 
Program in the Eastern District of Pennsylvania, should be considered 
by a court when determining whether to terminate the supervision.
    7. Furthermore, the Commission seeks comment on whether the new 
policy statement at Sec.  5D1.4 should provide guidance to courts on 
the appropriate procedures to employ when determining whether to 
terminate a term of supervised release. For example, should the 
Commission recommend that courts make the determination pursuant to a 
full public proceeding, or is a more informal proceeding sufficient? In 
either case, should the Commission encourage courts to appoint counsel 
to represent the defendant? How might the Commission encourage courts 
to ensure that any victim of the offense (or of any violation of a 
condition of supervised release) is notified of the early termination 
consideration and afforded a reasonable opportunity to be heard? Are 
there other appropriate approaches the Commission should recommend?

(B) Revocation of Supervised Release

    Synopsis of Proposed Amendment: Chapter Seven (Violations of 
Probation and Supervised Release) of the Guidelines Manual addresses 
violations of probation and supervised release by means of an 
introductory framework and a series of policy statements. The 
introduction to Chapter Seven, Part A (Introduction to Chapter Seven) 
explains the framework the Guidelines Manual uses to address violations 
of probation and supervised release. It describes the Commission's 
resolution of several issues. First, the Commission decided in 1990 to 
promulgate policy statements rather than guidelines because of the 
flexibility of this option. See generally USSG Ch.7, Pt.A. Next, 
``[a]fter lengthy consideration,'' the Commission adopted a ``breach of 
trust'' framework for violations of supervised release; the alternative 
option would have sanctioned individuals who committed new criminal 
conduct by applying the offense guidelines in Chapters Two and Three to 
the criminal conduct that formed the basis of the new violation, along 
with a recalculated criminal history score. Id. Under this approach, 
the ``sentence imposed upon revocation [is] intended to sanction the 
violator for failing to abide by the conditions of the court-ordered 
supervision, leaving the punishment for any new criminal conduct to the 
court responsible for imposing the sentence for that offense.'' Id. 
Finally, despite some debate, the Commission opted to ``develop a 
single set of policy statements for revocation of both probation and 
supervised release.'' Id. The Commission signaled that it intended 
ultimately to issue ``revocation guidelines,'' but it has not done so. 
Id.
    Section 7B1.1 (Classification of Violations (Policy Statement)) 
governs the classification of violations of supervised release. Grade A 
Violations consist of conduct constituting (A) a federal, state, or 
local offense punishable by a term of imprisonment exceeding one year 
that (i) is a crime of violence, (ii) is a controlled substance 
offense, or (iii) involves possession of a firearm or destructive 
device of a type described in 26 U.S.C. 5845(a); or (B) any other 
federal, state, or local offense punishable by a term of imprisonment 
exceeding twenty years. USSG Sec.  7B1.1(a)(1). Grade B Violations 
involve conduct constituting any other federal, state, or local offense 
punishable by a term of imprisonment exceeding on year. USSG Sec.  
7B1.1(a)(2). Grade C Violations involve conduct constituting (A) a 
federal, state, or local offense punishable by a term of imprisonment 
of one year or less; or (B) a violation of any other condition of 
supervision. USSG Sec.  7B1.1(a)(3). In cases with more than one 
violation of the conditions of supervision, or a single violation with 
conduct constituting more than one offense, the grade of the violation 
is determined by the violation having the most serious grade. USSG 
Sec.  7B1.1(b).
    Section 7B1.2 (Reporting of Violations of Probation and Supervised 
Release (Policy Statement)) concerns the reporting of violations of 
supervised release to the court. In cases of Grade A or B violations, 
Sec.  7B1.2(a) directs that the probation officer ``shall'' promptly 
report them to the court. For Grade C violations, the probation officer 
also ``shall'' promptly report them to the court unless the officer 
determines that (1) the violation is minor and not part of a continuing 
pattern, and (2) non-reporting will not present an undue risk to the 
individual or the public or be inconsistent with any directive of the 
court. USSG Sec.  7B1.2(b).
    Section 7B1.3 (Revocation of Probation or Supervised Release 
(Policy Statement)) governs a court's options when it finds that a 
violation of the terms of supervised release have occurred. Upon the 
finding of a Grade A or B violation, the court shall revoke an 
individual's supervised release; upon the finding of a Grade C 
violation, the court may either revoke supervised release, or it may 
extend the term of supervision and/or modify the conditions of 
supervision. USSG Sec.  7B1.3(a). When a court does revoke supervised 
release, Sec.  7B1.3(b) directs that the applicable range of 
imprisonment is the one set forth in Sec.  7B1.4. Section 7B1.3(c) 
provides that in the case of a Grade B or C violation, certain 
community confinement or home detention sentences are available to 
satisfy at least a portion of the sentence. Section 7B1.3(f) directs 
that any term of imprisonment imposed upon revocation shall be ordered 
to be served consecutively to any sentence of imprisonment the 
individual is serving, regardless of whether that other sentence 
resulted from the conduct that is the basis for the revocation. If 
supervised release is revoked, the court may also include an additional 
term of supervised release to be imposed upon release from 
imprisonment, but that term may not exceed statutory limits. USSG Sec.  
7B1.3(g).
    Section 7B1.4 (Term of Imprisonment (Policy Statement)) contains 
the revocation table, which sets forth recommended ranges of 
imprisonment based on the grade of violation and an individual's 
criminal history category. Increased sentencing ranges apply where the 
individual has committed a Grade A violation while also on supervised 
release following imprisonment for a Class A felony. USSG Sec.  
7B1.4(a)(2). An asterisked note to the revocation table notes that the 
criminal history category to be applied is the one ``applicable at the 
time the defendant originally was sentenced to a term of supervision.'' 
USSG Sec.  7B1.4(a)(2). Trumping mechanisms apply if the terms of 
imprisonment required by statute exceed or fall below the suggested 
range. USSG Sec.  7B1.4(b).
    Subsection (b) of 7B1.5 (No Credit for Time Under Supervision 
(Policy Statement)) directs that upon revocation of supervised release, 
``no credit shall be given (toward any term of imprisonment ordered) 
for time previously served on post-release supervision.'' An exception 
applies for individuals serving a period

[[Page 8979]]

of supervised release on a foreign sentence under the provisions of 18 
U.S.C. 4106A. USSG Sec.  7B1.5(c).
    Part B of the proposed amendment seeks to revise Chapter Seven to 
accomplish two goals. The first is to provide courts greater discretion 
to respond to a violation of a condition of supervised release. The 
second is to ensure the provisions in Chapter Seven reflect the 
differences between probation and supervised release.
    Part B of the proposed amendment revises the introductory 
commentary in Part A of Chapter Seven. It would add commentary 
explaining that the Commission has updated the policy statements 
addressing violations of supervised release in response to feedback 
from stakeholders identifying the need for more flexible, 
individualized responses to such violations. It would also add 
commentary highlighting the differences between probation and 
supervised release and how those differences have led the Commission to 
recommend different approaches to handling violations of probation, 
which serves a punitive function, and supervised release, a primary 
function of which is to ``fulfill[] rehabilitative ends, distinct from 
those served by incarceration.'' United States v. Johnson, 529 U.S. 53, 
59 (2000).
    Part B of the proposed amendment separates the provisions 
addressing violations of probation from those addressing violations of 
supervised release by removing all references to supervised release 
from Part B of Chapter Seven. It then duplicates the provisions of Part 
B as they pertain to supervised release in a new Part C.
    Part B of the proposed amendment would create a new Part C in 
Chapter Seven to address supervised release violations. Part C would 
begin with introductory commentary explaining that--in responding to an 
allegation that a supervisee has violated the terms of supervision, 
addressing a violation found during revocation proceedings, or imposing 
a sentence upon revocation--the court should conduct the same kind of 
individualized assessment used throughout the process of imposing a 
term of supervised release. It would also express the Commission's view 
that courts should consider a wide array of options to address 
violations of supervised release.
    The specific policy statements of Part C would duplicate the 
provisions of Part B as they pertain to supervised release, with a 
number of changes. Under the new Sec.  7C1.1 (Classification of 
Violations (Policy Statement)), which duplicates Sec.  7B1.1, there 
would be a fourth classification of violation: Grade D, which would 
include ``a violation of any other condition of supervised release,'' 
which is currently classified as a Grade C violation.
    Part B of the proposed amendment would duplicate Sec.  7B1.2, which 
addresses a probation officer's duty to report violations, in the new 
Sec.  7C1.2.
    Part B of the proposed amendment would create a new Sec.  7C1.3 
(Responses to Violations of Supervised Release (Policy Statement)), 
establishing the actions a court may take in response to an allegation 
of non-compliance with supervised release. Under the policy statement, 
upon an allegation of non-compliance, the court would be instructed to 
conduct an individualized assessment to determine the appropriate 
response. Part B of the proposed amendment brackets the possibility of 
creating in the guideline a non-exhaustive list of possible responses 
and brackets the possibility of including a list of other possible 
responses in an Application Note. It provides two options for 
addressing a court's response to a finding of a violation. Under Option 
1, upon a finding of a violation for which revocation is not required, 
the court would be authorized, subject to an individualized assessment, 
to continue the term of supervised release without modification, extend 
the term of supervised release or modify the conditions, terminate the 
term, or revoke supervised release. Upon a finding of a violation for 
which revocation is required by statute, the court would be required to 
revoke supervised release. Under Option 2, the court would be required 
to revoke supervised release upon a finding of a violation for which 
revocation is required by statute or for a Grade A or B violation. Upon 
a finding of any other violation, the court would be authorized, 
subject to an individualized assessment, to continue the term of 
supervised release without modification, extend the term of supervised 
release or modify the conditions, terminate the term, or revoke 
supervised release.
    Section 7C1.4 (Revocation of Supervised Release (Policy Statement)) 
would address instances of revocation. In such a case, the court would 
be required to conduct an individualized assessment to determine the 
appropriate length of the term of imprisonment. Part B of the proposed 
amendment provides two options, Option 1 and Option 2, for addressing 
whether such a term should be served concurrently or consecutively to 
any sentence of imprisonment the defendant is serving. Under Option 1, 
the court would be instructed to conduct an individualized assessment 
to determine whether that term should be served concurrently, partially 
concurrently, or consecutively to any sentence of imprisonment the 
defendant is serving. Option 2 would maintain the current provision 
requiring the term to be served consecutively. Part B of the proposed 
amendment would also continue to recognize the court's authority to 
include a requirement that the defendant be placed on a term of 
supervised release upon release from imprisonment.
    Section 7C1.5 (Term of Imprisonment--Supervised Release (Policy 
Statement)), which duplicates Sec.  7B1.4, would set forth the 
Supervised Release Revocation Table. The Supervised Release Revocation 
Table would include recommended ranges of imprisonment, which would be 
subject to an individualized assessment conducted by the court. The 
Table would also include recommended ranges for Grade D violations. It 
would also remove the guidance addressing statutory maximum and minimum 
terms of imprisonment.
    Finally, Sec.  7C1.6 (No Credit for Time Under Supervision (Policy 
Statement)) would duplicate Sec.  7B1.5, which provides that, upon 
revocation of supervised release, no credit shall be given for time 
previously served on post-release supervision.
    Issues for comment are also provided.
Proposed Amendment
    Chapter Seven, Part A is amended--
    in Subpart 1 by striking ``Under 28 U.S.C. 994(a)(3), the 
Sentencing Commission is required to issue guidelines or policy 
statements applicable to the revocation of probation and supervised 
release. At this time, the Commission has chosen to promulgate policy 
statements only. These policy statements will provide guidance while 
allowing for the identification of any substantive or procedural issues 
that require further review. The Commission views these policy 
statements as evolutionary and will review relevant data and materials 
concerning revocation determinations under these policy statements. 
Revocation guidelines will be issued after federal judges, probation 
officers, practitioners, and others have the opportunity to evaluate 
and comment on these policy statements.'' and inserting ``Under 28 
U.S.C. 994(a)(3), the Sentencing Commission is required to issue 
guidelines or policy statements applicable to the revocation of 
probation and supervised release. Initially, the Commission chose to 
promulgate policy statements only. These policy

[[Page 8980]]

statements were intended to provide guidance and allow for the 
identification of any substantive or procedural issues that require 
further review. The Commission viewed these policy statements as 
evolutionary and intended to review relevant data and materials 
concerning revocation determinations under these policy statements. 
Updated policies would be issued after federal judges, probation 
officers, practitioners, and others had the opportunity to evaluate and 
comment on these policy statements.'';
    in Subpart 3(a), in the paragraph that begins ``Moreover, the 
Commission'' by striking ``anticipates'' and inserting ``anticipated''; 
by striking ``will provide'' and inserting ``would provide''; by 
striking ``represent'' and inserting ``represented''; and by striking 
``intends to promulgate revocation guidelines'' and inserting 
``intended to promulgate updated revocation policies'';
    in Subpart 3(b)--
    in the paragraph that begins ``The Commission debated'' by 
inserting after ``the Commission'' the following: ``initially'';
    in the paragraph that begins ``After lengthy consideration'' by 
inserting after ``the Commission'' the following: ``initially'';
    in the paragraph that begins ``Given the relatively narrow'' by 
inserting after ``the Commission'' the following: ``initially'';
    and in the paragraph that begins ``Accordingly, the Commission'' by 
inserting after ``the Commission'' the following: ``initially'';
    in Subpart 4--
    in the paragraph that begins ``The revocation policy'' by striking 
``categorize'' and inserting ``initially categorized''; and by striking 
``fix'' and inserting ``fixed'';
    and in the paragraph that begins ``The Commission'' by striking 
``has elected'' and inserting ``initially elected''; by striking ``the 
Commission determined'' and inserting ``the Commission had 
determined''; and by striking ``the Commission has initially 
concluded'' and inserting ``the Commission initially concluded'';
    by striking Subpart 5 as follows:
    ``5. A Concluding Note
    The Commission views these policy statements for revocation of 
probation and supervised release as the first step in an evolutionary 
process. The Commission expects to issue revocation guidelines after 
judges, probation officers, and practitioners have had an opportunity 
to apply and comment on the policy statements.
    In developing these policy statements, the Commission assembled two 
outside working groups of experienced probation officers representing 
every circuit in the nation, officials from the Probation Division of 
the Administrative Office of the U.S. Courts, the General Counsel's 
office at the Administrative Office of the U.S. Courts, and the U.S. 
Parole Commission. In addition, a number of federal judges, members of 
the Criminal Law and Probation Administration Committee of the Judicial 
Conference, and representatives from the Department of Justice and 
federal and community defenders provided considerable input into this 
effort.'';
    and by inserting at the end the following new Subpart 5:
    ``5. Updating the Approach
    The Commission viewed the original policy statements for revocation 
of probation and supervised release as the first step in an 
evolutionary process. The Commission intended to revise its approach 
after judges, probation officers, and practitioners have had an 
opportunity to apply and comment on the policy statements. In the three 
decades since the promulgation of those policy statements, a broad 
array of stakeholders has identified the need for more flexible, 
individualized responses to violations of supervised release.
    In response, the Commission updated the policy statements in this 
Chapter to ensure judges have the discretion necessary to properly 
manage supervised release. The revised policy statements encourage 
judges to take an individualized approach in: (1) responding to 
allegations of non-compliance before initiating revocation proceedings; 
(2) addressing violations found during revocation proceedings; and (3) 
imposing a sentence of imprisonment upon revocation. These changes are 
intended to better allocate taxpayer dollars and probation resources, 
encourage compliance and improve public safety, and facilitate the 
reentry and rehabilitation of defendants.
    This Chapter proceeds in two parts: Part B addresses violations of 
probation, and Part C addresses violations of supervised release. Both 
parts maintain an approach in which the court addresses primarily the 
defendant's failure to comply with court-ordered conditions, while 
reflecting, to a limited degree, the seriousness of the underlying 
violation and the criminal history of the individual. The Commission 
determined that violations of probation and supervised release should 
be addressed separately to reflect their different purposes. While 
probation serves a punitive function, supervised release `fulfills 
rehabilitative ends, distinct from those served by incarceration,' 
United States v. Johnson, 529 U.S. 53, 59 (2000). In light of these 
differences, Part B continues to recommend revocation for most 
probation violations. Part C encourages courts to consider a graduated 
response to a violation of supervised release, including considering 
all available options focused on facilitating a defendant's transition 
into the community and promoting public safety. Parts B and C both 
recognize the important role of the court, which is best situated to 
consider the individual defendant's risks and needs and respond 
accordingly within its broad discretion.''.
    Chapter Seven, Part B is amended in the Introductory Commentary--
    in the paragraph that begins ``The policy statements'' by striking 
``chapter'' and inserting ``part''; and by striking ``supervision'' and 
inserting ``probation'';
    by striking the following paragraph:
    ``Because these policy statements focus on the violation of the 
court-ordered supervision, this chapter, to the extent permitted by 
law, treats violations of the conditions of probation and supervised 
release as functionally equivalent.'';
    by striking the last paragraph as follows:
    ``This chapter is applicable in the case of a defendant under 
supervision for a felony or Class A misdemeanor. Consistent with Sec.  
1B1.9 (Class B or C Misdemeanors and Infractions), this chapter does 
not apply in the case of a defendant under supervision for a Class B or 
C misdemeanor or an infraction.''
    and by inserting at the end the following new paragraph:
    ``This part is applicable in the case of a defendant on probation 
for a felony or Class A misdemeanor. Consistent with Sec.  1B1.9 (Class 
B or C Misdemeanors and Infractions), this part does not apply in the 
case of a defendant on probation for a Class B or C misdemeanor or an 
infraction.''.
    Section 7B1.1 is amended--
    in subsection (a) by striking ``and supervised release'';
    in subsection (a)(3) by striking ``supervision'' and inserting 
``probation'';
    and in subsection (b) by striking ``supervision'' and inserting 
``probation''.
    The Commentary to Sec.  7B1.1 captioned ``Application Notes'' is 
amended--
    in Note 1 by striking ``18 U.S.C. 3563(a)(1) and 3583(d), a 
mandatory condition of probation and supervised release'' and inserting 
``18 U.S.C.

[[Page 8981]]

3563(a)(1), a mandatory condition of probation'';
    and in Note 5 by striking ``under supervision'' and inserting ``on 
probation''.
    Section 7B1.2 is amended in the heading by striking ``and 
Supervised Release''.
    Section 7B1.3 is amended--
    in the heading by striking ``or Supervised Release'';
    in subsection (a)(1) by striking ``or supervised release'';
    in subsection (a)(2) by striking ``revoke probation or supervised 
release; or (B) extend the term of probation or supervised release and/
or modify the conditions of supervision'' and inserting ``revoke 
probation; or (B) extend the term of probation and/or modify the 
conditions thereof'';
    in subsection (b) by striking ``or supervised release'';
    in subsection (e) by striking ``or supervised release'' both places 
such phrase appears;
    in subsection (f) by striking ``or supervised release'' both places 
such phrase appears;
    in subsection (g) by striking the following:
    ``(1) If probation is revoked and a term of imprisonment is 
imposed, the provisions of Sec. Sec.  5D1.1-1.3 shall apply to the 
imposition of a term of supervised release.
    (2) If supervised release is revoked, the court may include a 
requirement that the defendant be placed on a term of supervised 
release upon release from imprisonment. The length of such a term of 
supervised release shall not exceed the term of supervised release 
authorized by statute for the offense that resulted in the original 
term of supervised release, less any term of imprisonment that was 
imposed upon revocation of supervised release. 18 U.S.C. 3583(h).'';
    and inserting the following:
    ``If probation is revoked and a term of imprisonment is imposed, 
the provisions of Sec. Sec.  5D1.1-1.3 shall apply to the imposition of 
a term of supervised release.''.
    The Commentary to Sec.  7B1.3 captioned ``Application Notes'' is 
amended--
    in Note 1 by striking ``or supervised release''; and by striking 
``supervision'' both places such term appears and inserting 
``probation'';
    by striking Note 2 as follows:
    ``2. The provisions for the revocation, as well as early 
termination and extension, of a term of supervised release are found in 
18 U.S.C. 3583(e), (g)-(i). Under 18 U.S.C. 3583(h) (effective 
September 13, 1994), the court, in the case of revocation of supervised 
release, may order an additional period of supervised release to follow 
imprisonment.'';
    by redesignating Notes 3, 4, and 5 as Notes 2, 3, and 4, 
respectively;
    in Note 2 (as so redesignated) by striking ``or supervised 
release''; and by striking ``Bureau of Prisons'' and inserting 
``Federal Bureau of Prisons'';
    in Note 3 (as so redesignated) by striking ``or supervised 
release'' both places such phrase appears;
    and in Note 4 (as so redesignated) by striking ``. Intermittent 
confinement is authorized as a condition of supervised release during 
the first year of supervised release, but only for a violation of a 
condition of supervised release in accordance with 18 U.S.C. 3583(e)(2) 
and only when facilities are available. See'' and inserting ``; see 
also''.
    Section 7B1.4 is amended in the heading by striking 
``Imprisonment'' and inserting ``Imprisonment--Probation'';
    Section 7B1.4(a) is amended in the Table--
    in the heading by striking ``Revocation Table'' and inserting 
``Probation Revocation Table'';
    by striking the following:
    ``Grade A (1) Except as provided in subdivision (2) below:
    12-18 15-21 18-24 24-30 30-37 33-41
    (2) Where the defendant was on probation or supervised release as a 
result of a sentence for a Class A felony:
    24-30 27-33 30-37 37-46 46-57 51-63.
    * The criminal history category is the category applicable at the 
time the defendant originally was sentenced to a term of 
supervision.'';
    and by inserting at the end the following:
    ``Grade A 12-18 15-21 18-24 24-30 30-37 33-41.
    * The criminal history category is the category applicable at the 
time the defendant originally was sentenced to a term of probation.''.
    The Commentary to Sec.  7B1.4 captioned ``Application Notes'' is 
amended--
    in Note 1 by striking ``supervision'' each place such term appears 
and inserting ``probation'';
    in Note 2 by striking ``Revocation Table'' and inserting 
``Probation Revocation Table''; and by striking ``supervision'' both 
places such term appears and inserting ``probation'';
    in Note 3 by striking ``under supervision'' and inserting ``on 
probation'';
    in Note 5 by striking ``or supervised release'' both places such 
phrase appears; and by striking ``18 U.S.C. 3565(b), 3583(g)'' and 
inserting ``18 U.S.C. 3565(b)'';
    and in Note 6 by striking ``18 U.S.C. 3565(b) and 3583(g). 18 
U.S.C. 3563(a), 3583(d)'' and inserting ``18 U.S.C. 3565(b). 18 U.S.C. 
3563(a)''.
    Section 7B1.5 is amended--
    in the heading by striking ``Under Supervision'' and inserting ``on 
Probation'';
    by striking subsections (a), (b), and (c) as follows:
    ``(a) Upon revocation of probation, no credit shall be given 
(toward any sentence of imprisonment imposed) for any portion of the 
term of probation served prior to revocation.
    (b) Upon revocation of supervised release, no credit shall be given 
(toward any term of imprisonment ordered) for time previously served on 
post-release supervision.
    (c) Provided, that in the case of a person serving a period of 
supervised release on a foreign sentence under the provisions of 18 
U.S.C. 4106A, credit shall be given for time on supervision prior to 
revocation, except that no credit shall be given for any time in escape 
or absconder status.'';
    and inserting the following:
    ``Upon revocation of probation, no credit shall be given (toward 
any sentence of imprisonment imposed) for any portion of the term of 
probation served prior to revocation.''.
    The Commentary to Sec.  7B1.5 is amended by striking the Commentary 
captioned ``Application Note'' in its entirety as follows:
    ``Application Note:
    1. Subsection (c) implements 18 U.S.C. 4106A(b)(1)(C), which 
provides that the combined periods of imprisonment and supervised 
release in transfer treaty cases shall not exceed the term of 
imprisonment imposed by the foreign court.''.
    The Commentary to Sec.  7B1.5 captioned ``Background'' is amended 
by striking ``or supervised release''; by striking ``with supervision'' 
and inserting ``with probation''; and by striking ``under supervision'' 
and inserting ``on probation''.
    Chapter Seven is amended by inserting at the end the following new 
Part C:

``Part C--Supervised Release Violations

Introductory Commentary
    At the time of original sentencing, the court may impose a term of 
supervised release to follow the sentence of imprisonment. See 18 
U.S.C. 3583(a). During that term, the court may receive allegations 
that the supervisee has violated a term of supervision. In

[[Page 8982]]

responding to such allegations, addressing a violation found during 
revocation proceedings, and imposing a sentence upon revocation, the 
court should conduct the same kind of individualized assessment used 
`in determining whether to include a term of supervised release, and, 
if a term of supervised release is to be included, in determining the 
length of the term and the conditions of supervised release.' See 18 
U.S.C. 3583(c), (e); Application Note 1 to Sec.  5D1.1 (Imposition of a 
Term of Supervised Release).
    If the court finds that the defendant violated a condition of 
supervised release, it may continue the defendant on supervised release 
under existing conditions, modify the conditions, extend the term, or 
revoke supervised release and impose a term of imprisonment. See 18 
U.S.C. 3583(e)(3). The court also has authority to terminate a term of 
supervised release and discharge the defendant at any time after the 
expiration of one year of supervised release if it is satisfied that 
such action is warranted by the conduct of the defendant and the 
interest of justice. 18 U.S.C. 3583(e)(1).
    Because supervised release is intended to promote rehabilitation 
and ease the defendant's transition back into the community, the 
Commission encourages courts--where possible--to consider a wide array 
of options to respond to non-compliant behavior and violations of the 
conditions of supervised release. These interim steps before revocation 
are intended to allow courts to address the defendant's failure to 
comply with court-imposed conditions and to better address the needs of 
the defendant while also maintaining public safety. If revocation is 
mandated by statute or the court otherwise determines revocation to be 
necessary, the sentence imposed upon revocation should be tailored to 
address the failure to abide by the conditions of the court-ordered 
supervision; imposition of an appropriate punishment for new criminal 
conduct is not the primary goal of a revocation sentence. The 
determination of the appropriate sentence on any new criminal 
conviction that is also a basis of the violation should be a separate 
determination for the court having jurisdiction over such conviction.

Sec.  7C1.1. Classification of Violations (Policy Statement)

    (a) There are four grades of supervised release violations:
    (1) Grade A Violations--conduct constituting (A) a federal, state, 
or local offense punishable by a term of imprisonment exceeding one 
year that (i) is a crime of violence, (ii) is a controlled substance 
offense, or (iii) involves possession of a firearm or destructive 
device of a type described in 26 U.S.C. 5845(a); or (B) any other 
federal, state, or local offense punishable by a term of imprisonment 
exceeding twenty years;
    (2) Grade B Violations--conduct constituting any other federal, 
state, or local offense punishable by a term of imprisonment exceeding 
one year;
    (3) Grade C Violations--conduct constituting a federal, state, or 
local offense punishable by a term of imprisonment of one year or less;
    (4) Grade D Violations--a violation of any other condition of 
supervised release.
    (b) Where there is more than one violation of the conditions of 
supervised release, or the violation includes conduct that constitutes 
more than one offense, the grade of the violation is determined by the 
violation having the most serious grade.
Commentary
    Application Notes:
    1. Under 18 U.S.C. 3583(d), a mandatory condition of supervised 
release is that the defendant not commit another federal, state, or 
local crime. A violation of this condition may be charged whether or 
not the defendant has been the subject of a separate federal, state, or 
local prosecution for such conduct. The grade of violation does not 
depend upon the conduct that is the subject of criminal charges or of 
which the defendant is convicted in a criminal proceeding. Rather, the 
grade of the violation is to be based on the defendant's actual 
conduct.
    2. `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.
    3. `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.
    4. A `firearm or destructive device of a type described in 26 
U.S.C. 5845(a)' includes a shotgun, or a weapon made from a shotgun, 
with a barrel or barrels of less than 18 inches in length; a weapon 
made from a shotgun or rifle with an overall length of less than 26 
inches; a rifle, or a weapon made from a rifle, with a barrel or 
barrels of less than 16 inches in length; a machine gun; a muffler or 
silencer for a firearm; a destructive device; and certain large bore 
weapons.
    5. Where the defendant is on supervised release in connection with 
a felony conviction, or has a prior felony conviction, possession of a 
firearm (other than a firearm of a type described in 26 U.S.C. 5845(a)) 
will generally constitute a Grade B violation, because 18 U.S.C. 922(g) 
prohibits a convicted felon from possessing a firearm. The term 
`generally' is used in the preceding sentence, however, because there 
are certain limited exceptions to the applicability of 18 U.S.C. 
922(g). See, e.g., 18 U.S.C. 925(c).

Sec.  7C1.2. Reporting of Violations of Supervised Release (Policy 
Statement)

    (a) The probation officer shall promptly report to the court any 
alleged Grade A or B violation.
    (b) The probation officer shall promptly report to the court any 
alleged Grade C or D violation unless the officer determines: (1) that 
such violation is minor, and not part of a continuing pattern of 
violations; and (2) that non-reporting will not present an undue risk 
to an individual or the public or be inconsistent with any directive of 
the court relative to the reporting of violations.
Commentary
    Application Note:
    1. Under subsection (b), a Grade C or D violation must be promptly 
reported to the court unless the probation officer makes an affirmative 
determination that the alleged violation meets the criteria for non-
reporting. For example, an isolated failure to file a monthly report or 
a minor traffic infraction generally would not require reporting.

Sec.  7C1.3. Responses to Violations of Supervised Release (Policy 
Statement)

    (a) Allegation of Non-Compliance.--Upon receiving an allegation 
that the defendant is in non-compliance with a condition of supervised 
release, the court should conduct an individualized assessment to 
determine what response, if any, is appropriate. [When warranted by an 
individualized assessment, the court may, for example:
    (1) Continue the term of supervised release without modification;
    (2) Extend the term of supervised release and/or modify the 
conditions thereof;
    (3) Terminate the term of supervised release, if more than one year 
of the term of supervised release has expired; or
    (4) Initiate revocation proceedings.]
    [Option 1 (Mandatory Revocation only when Statutorily Required):
    (b) Finding of a Violation.--Upon a finding of a violation for 
which revocation is not required by statute, the court should conduct 
an individualized

[[Page 8983]]

assessment to determine what response, if any, is appropriate. When 
warranted by an individualized assessment, the court may:
    (1) Continue the term of supervised release without modification;
    (2) Extend the term of supervised release and/or modify the 
conditions thereof;
    (3) Terminate the term of supervised release, if more than one year 
of the term of supervised release has expired; or
    (4) Revoke supervised release.
    (c) Upon a finding of a violation for which revocation is required 
by statute, the court shall revoke supervised release. See 18 U.S.C. 
3583(g).]
    [Option 2 (Mandatory Revocation when Statutorily Required and for 
Grade A and B Violations):
    (b) Finding of a Violation.--Upon a finding of a violation for 
which revocation is required by statute (see 18 U.S.C. 3583(g)) or a 
Grade A or B violation, the court shall revoke supervised release.
    (c) Upon a finding of any other violation, the court should conduct 
an individualized assessment to determine what response, if any, is 
appropriate. When warranted by an individualized assessment, the court 
may:
    (1) Continue the term of supervised release without modification;
    (2) Extend the term of supervised release and/or modify the 
conditions thereof;
    (3) Terminate the term of supervised release, if more than one year 
of the term of supervised release has expired; or
    (4) Revoke supervised release.]
Commentary
    Application Notes:
    1. Individualized Assessment.--When making an individualized 
assessment under this section, the factors to be considered are the 
same as the factors considered in determining whether to impose a term 
of supervised release. See 18 U.S.C. 3583(c), (e); Application Note 2 
to Sec.  5D1.1 (Imposition of a Term of Supervised Release).
    [2. Application of Subsection (a).--Examples of responses to an 
allegation of non-compliance with a condition of supervised release 
include continuing a violation hearing to provide the defendant time to 
come into compliance or directing the defendant to additional resources 
needed to come into compliance.]

Sec.  7C1.4. Revocation of Supervised Release (Policy Statement)

    [Option 1 (Concurrent or Consecutive Sentences):
    (a) In the case of a revocation of supervised release, the court 
shall conduct an individualized assessment to determine:
    (1) the appropriate length of the term of imprisonment, given the 
recommended range of imprisonment set forth in Sec.  7C1.5 (Term of 
Imprisonment--Supervised Release (Policy Statement)); and
    (2) whether that term should be served concurrently, partially 
concurrently, or consecutively to any sentence of imprisonment that the 
defendant is serving, whether or not the sentence of imprisonment being 
served resulted from the conduct that is the basis of the revocation of 
supervised release.]
    [Option 2 (Consecutive Sentences Only):
    (a) In the case of a revocation of supervised release, the court 
shall conduct an individualized assessment to determine the appropriate 
length of the term of imprisonment, given the recommended range of 
imprisonment set forth in Sec.  7C1.5 (Term of Imprisonment--Supervised 
Release (Policy Statement)).
    (b) Any term of imprisonment imposed upon the revocation of 
supervised release should be ordered to be served consecutively to any 
sentence of imprisonment that the defendant is serving, whether or not 
the sentence of imprisonment being served resulted from the conduct 
that is the basis of the revocation of supervised release.]
    ([b][c]) If supervised release is revoked, the court may include a 
requirement that the defendant be placed on a term of supervised 
release upon release from imprisonment. The length of such a term of 
supervised release shall not exceed the term of supervised release 
authorized by statute for the offense that resulted in the original 
term of supervised release, less any term of imprisonment that was 
imposed upon revocation of supervised release. 18 U.S.C. 3583(h).
Commentary
    Application Notes:
    1. Individualized Assessment.--When making an individualized 
assessment under subsection (a), the factors to be considered are the 
same as the factors considered in determining whether to impose a term 
of supervised release. See 18 U.S.C. 3583(c), (e); Application Note 1 
to Sec.  5D1.1 (Imposition of a Term of Supervised Release).
    2. The provisions for the revocation, as well as early termination 
and extension, of a term of supervised release are found in 18 U.S.C. 
3583(e), (g)-(i). Under 18 U.S.C. 3583(h) (effective September 13, 
1994), the court, in the case of revocation of supervised release, may 
order an additional period of supervised release to follow 
imprisonment.
    3. In the case of a revocation based, at least in part, on a 
violation of a condition specifically pertaining to community 
confinement, intermittent confinement, or home detention, use of the 
same or a less restrictive sanction is not recommended.
    4. Any restitution, fine, community confinement, home detention, or 
intermittent confinement previously imposed in connection with the 
sentence for which revocation is ordered that remains unpaid or 
unserved at the time of revocation shall be ordered to be paid or 
served in addition to the sanction determined under Sec.  7C1.5 (Term 
of Imprisonment--Supervised Release), and any such unserved period of 
community confinement, home detention, or intermittent confinement may 
be converted to an equivalent period of imprisonment.

Sec.  7C1.5. Term of Imprisonment--Supervised Release (Policy 
Statement)

    Unless otherwise required by statute, and subject to an 
individualized assessment, the recommended range of imprisonment 
applicable upon revocation is set forth in the following table:

                                                           Supervised Release Revocation Table
                                                               [In months of imprisonment]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Criminal history category *
---------------------------------------------------------------------------------------------------------------------------------------------------------
                   Grade of violation                            I              II              III             IV               V              VI
--------------------------------------------------------------------------------------------------------------------------------------------------------
Grade D.................................................         Up to 7             2-8             3-9            4-10            5-11            6-12
Grade C.................................................             3-9            4-10            5-11            6-12            7-13            8-14

[[Page 8984]]

 
Grade B.................................................            4-10            6-12            8-14           12-18           18-24           21-27
                                                         -----------------------------------------------------------------------------------------------
Grade A.................................................  (1) Except as provided in subdivision (2) below:
                                                         -----------------------------------------------------------------------------------------------
                                                                   12-18           15-21           18-24           24-30           30-37           33-41
                                                         -----------------------------------------------------------------------------------------------
                                                          (2) Where the defendant was on supervised release as a result of a sentence for a Class A
                                                          felony:
                                                         -----------------------------------------------------------------------------------------------
                                                                   24-30           27-33           30-37           37-46           46-57           51-63
--------------------------------------------------------------------------------------------------------------------------------------------------------
* The criminal history category is the category applicable at the time the defendant originally was sentenced to a term of supervised release.

Commentary
    Application Notes:
    1. The criminal history category to be used in determining the 
applicable range of imprisonment in the Supervised Release Revocation 
Table is the category determined at the time the defendant originally 
was sentenced to the term of supervision. The criminal history category 
is not to be recalculated because the ranges set forth in the 
Supervised Release Revocation Table have been designed to take into 
account that the defendant violated supervision. In the rare case in 
which no criminal history category was determined when the defendant 
originally was sentenced to the term of supervision being revoked, the 
court shall determine the criminal history category that would have 
been applicable at the time the defendant originally was sentenced to 
the term of supervision. (See the criminal history provisions of 
Sec. Sec.  4A1.1-4B1.4.)
    2. In the case of a Grade D violation and a criminal history 
category of I, the recommended range of imprisonment in the Supervised 
Release Revocation Table is up to 7 months. This range allows for a 
sentence of less than 1 month.
    3. Departure from the applicable range of imprisonment in the 
Supervised Release 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 supervised release. 
Additionally, an upward departure may be warranted when a defendant, 
subsequent to the federal sentence resulting in supervised release, has 
been sentenced for an offense that is not the basis of the violation 
proceeding.
    4. In the case of a Grade C or D violation that is associated with 
a high risk of new felonious conduct (e.g., a defendant, under 
supervised release 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.
    5. 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.
    6. Upon a finding that a defendant violated a condition of 
supervised release by being in possession of a controlled substance or 
firearm or by refusing to comply with a condition requiring drug 
testing, the court is required to revoke supervised release and impose 
a sentence that includes a term of imprisonment. 18 U.S.C. 3583(g).
    7. The availability of appropriate substance abuse programs, or a 
defendant's current or past participation in such programs, may warrant 
an exception from the requirement of mandatory revocation and 
imprisonment under 18 U.S.C. 3583(g). 18 U.S.C. 3583(d).

Sec.  7C1.6. No Credit for Time Under Supervision (Policy Statement)

    (a) Upon revocation of supervised release, no credit shall be given 
(toward any term of imprisonment ordered) for time previously served on 
post-release supervision. See 18 U.S.C. 3583(e)(3).
    (b) Provided, that in the case of a person serving a period of 
supervised release on a foreign sentence under the provisions of 18 
U.S.C. 4106A, credit shall be given for time on supervision prior to 
revocation, except that no credit shall be given for any time in escape 
or absconder status.
Commentary
    Application Note:
    1. Subsection (b) implements 18 U.S.C. 4106A(b)(1)(C), which 
provides that the combined periods of imprisonment and supervised 
release in transfer treaty cases shall not exceed the term of 
imprisonment imposed by the foreign court.
    Background: This section provides that time served on supervised 
release is not to be credited in the determination of any term of 
imprisonment imposed upon revocation. Other aspects of the defendant's 
conduct, such as compliance with supervision conditions and adjustment 
while under supervision, appropriately may be considered by the court 
in the determination of the sentence to be imposed within the 
applicable revocation range.''.
Issues for Comment
    1. Part B of the proposed amendment adds language to address 
feedback indicating both that courts and probation officers should be 
afforded more discretion in their ability to address a defendant's non-
compliant behavior while on supervised release and that they would 
benefit from more guidance concerning revocations of supervised 
release.
    (A) Part B would include throughout Chapter Seven, Part C 
(Supervised Release Violations) a recommendation that courts use an 
``individualized assessment'' based on the statutory factors listed in 
18 U.S.C. 3583(e) when addressing non-compliant behavior. The 
Commission seeks comment on whether the recommendation of an 
individualized assessment based on statutory factors is sufficient to 
provide both discretion and useful guidance.
    (B) New policy statement Sec.  7C1.3 (Responses to Violations of 
Supervised Release (Policy Statement)) includes in the Commentary 
examples of how a court might address allegations of non-

[[Page 8985]]

compliant behavior short of the more formal options listed in 18 U.S.C. 
3583(e). In addition, Part B maintains instructions on violations 
related to community confinement conditions in the Commentary to new 
policy statement Sec.  7C1.4 (Revocation of Supervised Release (Policy 
Statement)). The Commission seeks comment on whether such guidance 
should be retained or deleted and whether similar guidance should be 
included elsewhere. If the Commission provides further guidance, what 
should that guidance be?
    (C) Is there any other approach the Commission should consider to 
provide courts with appropriate discretion while also providing useful 
guidance, either throughout Chapter Seven, Part C, or for certain 
guideline provisions?
    2. Part B of the proposed amendment includes two options to address 
when revocation is required or appropriate under new Sec.  7C1.3 
(Responses to Violations of Supervised Release (Policy Statement)). 
Option 1 would remove the language indicating that revocation is 
mandatory in all cases of Grade A or B violations and provide that the 
court should conduct an individualized assessment to determine whether 
to revoke in any cases that revocation is not required by statute. 
Option 2 would duplicate the language in Sec.  7B1.3(a) that provides 
that ``the court shall revoke'' supervised release upon a finding of a 
Grade A or B violation and may revoke in other cases. Should the 
Commission continue to provide guidance tying whether revocation is 
required to the grade of the violation, or should the Commission remove 
this instruction and permit courts to make revocation determinations 
based on an individualized assessment in all cases? If the latter, 
should the Commission provide further guidance about when revocation is 
appropriate?
    3. Given the proposed amendment's goal of promoting judicial 
discretion at revocation, the Commission seeks comment on whether it 
should replace the Supervised Release Revocation Table set forth in 
proposed Sec.  7C1.4 (Term of Imprisonment--Supervised Release) with 
guidance indicating that courts abide by the statutory limits regarding 
maximum and minimum terms. If the Commission decides to retain the 
Revocation Table, would any further changes beyond those set forth in 
Part B of the proposed amendment be appropriate? For example, should 
the Commission recommend a sentence range that begins at less than one 
month in all cases, not just those involving Grade D violations for 
individuals in Criminal History Category I? Should it eliminate the 
higher set of ranges for cases in which the defendant is on supervised 
release as a result of a sentence for a Class A felony?
    4. The Commission further seeks comment on whether and how a 
retained Supervised Release Revocation Table should make 
recommendations to courts regarding their consideration of criminal 
history. Should the defendant's criminal history category be 
recalculated at the time of revocation for a violation of supervised 
release? For example, should a court recalculate a defendant's criminal 
history score to exclude prior sentences that are no longer countable 
under the rules in Sec.  4A1.2 (Definitions and Instructions for 
Computing Criminal History) or to account for new offenses a defendant 
may have been sentenced for after commission of the offense for which 
probation or supervised release is being revoked?
    5. The Commission seeks comment on whether it should issue more 
specific guidance on the appropriate response to Grade D violations. 
Should the Commission state that revocation is not ordinarily 
appropriate for such violations, unless revocation is required under 18 
U.S.C. 3583(g)? Should the Commission further state that revocation may 
be appropriate for Grade D violations if there have been multiple 
violations or if the court determines that revocation is necessary for 
protection of the public? Would such statements imply that revocation 
is ordinarily appropriate for Grade A, B, and C violations?
    6. The recommended ranges of imprisonment set forth in the 
Revocation Tables at Sec.  7B1.4 (Term of Imprisonment--Probation) and 
Sec.  7C1.4 (Term of Imprisonment--Supervised Release) are determined, 
in part, by the defendant's criminal history category. For both tables, 
the criminal history category ``is the category applicable at the time 
the defendant originally was sentenced'' to a term of probation or 
supervised release. The Commission seeks comment on whether a 
defendant's criminal history score should be recalculated at the time 
of revocation to reflect changes made by amendments listed in 
subsection (d) of Sec.  1B1.10 (Reduction in Term of Imprisonment as a 
Result of Amended Guideline Range (Policy Statement)) if one or more of 
those amendments have the effect of lowering the defendant's criminal 
history category. For example, Part A of Amendment 821, which is 
applied retroactively, limits the overall criminal history impact of 
``status points,'' potentially resulting in a defendant's criminal 
history being lowered (e.g., a defendant assigned criminal history 
category IV at the time of original sentencing may have that category 
reduced to III). Should the Revocation Tables at Sec.  7B1.4 (Term of 
Imprisonment--Probation) and Sec.  7C1.4 (Term of Imprisonment--
Supervised Release) allow for a defendant to benefit from these types 
of retroactive changes? Should these changes apply equally to both 
tables or, given the different purposes of probation and supervised 
release, should the Commission adopt different rules for each table?
2. Drug Offenses
    Synopsis of Proposed Amendment: This proposed amendment contains 
five parts (Parts A through E). The Commission is considering whether 
to promulgate any or all of these parts, as they are not mutually 
exclusive.
    Part A of the proposed amendment includes two subparts to address 
concerns that the Drug Quantity Table at subsection (c) of Sec.  2D1.1 
(Unlawful Manufacturing, Importing, Exporting, or Trafficking 
(Including Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy) overly relies on drug type and quantity as a measure of 
offense culpability and results in sentences greater than necessary to 
accomplish the purposes of sentencing. Subpart 1 sets forth three 
options for amending Sec.  2D1.1 to set the highest base offense level 
in the Drug Quantity Table at a lower base offense level. Subpart 2 
sets forth two options for amending Sec.  2D1.1 to add a new specific 
offense characteristic providing for a reduction relating to low-level 
trafficking functions. Both subparts include issues for comment.
    Part B of the proposed amendment includes two subparts. Subpart 1 
would amend Sec.  2D1.1 to address offenses involving ``Ice.'' Subpart 
2 sets forth two options for amending Sec.  2D1.1 to address the purity 
distinction in Sec.  2D1.1 between methamphetamine in ``actual'' form 
and methamphetamine as part of a mixture. Both subparts include issues 
for comment.
    Part C of the proposed amendment would amend Sec.  2D1.1 to revise 
the enhancement for misrepresentation of fentanyl and fentanyl analogue 
at subsection (b)(13). Issues for comment are also provided.
    Part D of the proposed amendment addresses the application of Sec.  
2D1.1(b)(1) to machineguns. An issue for comment is also provided.
    Part E of the proposed amendment would amend the Commentary to 
Sec.  5C1.2 (Limitation on Applicability of Statutory Minimum Sentences 
in Certain Cases) to address the manner by

[[Page 8986]]

which a defendant may satisfy Sec.  5C1.2(a)(5)'s requirement of 
providing truthful information and evidence to the Government. An issue 
for comment is also provided.
(A) Recalibrating the Use of Drug Weight in Sec.  2D1.1
    Synopsis of Proposed Amendment: Part A of the proposed amendment 
contains two subparts (Subpart 1 and Subpart 2). The Commission is 
considering whether to promulgate one or both of these subparts, as 
they are not mutually exclusive.
    Subpart 1 sets forth three options for amending Sec.  2D1.1 
(Unlawful Manufacturing, Importing, Exporting, or Trafficking 
(Including Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy) to set the highest base offense level in the Drug Quantity 
Table at subsection (c) at a lower base offense level.
    Subpart 2 sets forth two options for amending Sec.  2D1.1 to add a 
new specific offense characteristic providing for a reduction relating 
to low-level trafficking functions.
Drug Penalties in General
    The most commonly prosecuted federal drug statutes prohibit the 
manufacture, distribution, importation, and exportation of controlled 
substances. The statutory penalties for these offenses vary based on 
(1) the quantity of the drug, (2) the defendant's prior commission of 
certain felony offenses, and (3) any serious bodily injury or death 
that resulted from using the drug. Section 2D1.1 applies to violations 
of 21 U.S.C. 841 and 960, among other drug statutes. This guideline 
provides five alternative base offense levels, 18 specific offense 
characteristics, and two cross references.
    The first four base offense levels, set out in Sec.  2D1.1(a)(1)-
(a)(4), apply when the defendant was convicted of an offense under 21 
U.S.C. 841(b) or Sec.  960(b) to which the applicable enhanced 
statutory minimum or maximum term of imprisonment applies or when the 
parties have stipulated to such an offense or such base offense level. 
The fifth base offense level, at Sec.  2D1.1(a)(5), applies in any 
other case and sets forth as the base offense level ``the offense level 
specified in the Drug Quantity Table,'' subject to special provisions 
that apply when a defendant receives a mitigating role adjustment under 
Sec.  3B1.2 (Mitigating Role).
    The Drug Quantity Table at Sec.  2D1.1(c) applies in the 
overwhelming majority of drug cases. The penalty structure of the Drug 
Quantity Table is based on the penalty structure of federal drug laws 
for most major drug types. That penalty structure generally establishes 
several tiers of penalties for manufacturing and trafficking in 
controlled substances, each based on the type and quantity of 
controlled substances involved. See generally 21 U.S.C. 841(b)(1)(A), 
(B), (C), 960(b)(1), (2), (3). Thus, the offense levels set forth in 
the Drug Quantity Table depend primarily on drug type and drug 
quantity. For most drugs listed in the Drug Quantity Table, quantity is 
determined by the drug's weight. The Drug Quantity Table also includes 
``Converted Drug Weight,'' which is used to determine the base offense 
level in two circumstances: (1) when the defendant's relevant conduct 
involves two or more controlled substances (and not merely a single 
mixture of two substances); and (2) when the defendant's relevant 
conduct involves a controlled substance not specifically listed on the 
Drug Quantity Table. In either situation, the weight of the controlled 
substances is converted into a Converted Drug Weight using the Drug 
Conversion Tables set forth in Application Note 8(D) of the Commentary 
to Sec.  2D1.1.
    Section 2D1.1 generally incorporates the statutory mandatory 
minimum sentences into the guidelines and extrapolates upward and 
downward to set offense levels for all drug quantities. Under the 
original guidelines, the quantity thresholds in the Drug Quantity Table 
were set to provide base offense levels corresponding to guideline 
ranges that were slightly above the statutory mandatory minimum 
penalties. Accordingly, offenses involving drug quantities that 
triggered a five-year statutory minimum were assigned a base offense 
level of 26, corresponding to a sentencing guideline range of 63 to 78 
months for a defendant in Criminal History Category I (a guideline 
range that exceeds the five-year statutory minimum for such offenses by 
at least three months). Similarly, offenses that triggered a ten-year 
statutory minimum were assigned a base offense level of 32, 
corresponding to a sentencing guideline range of 121 to 151 months for 
a defendant in Criminal History Category I (a guideline range that 
exceeds the ten-year statutory minimum for such offenses by at least 
one month).
    In 2014, the Commission determined that setting the base offense 
levels slightly above the mandatory minimum penalties was no longer 
necessary and instead set the base offense levels to straddle the 
mandatory minimum penalties. See USSG App. C, amend. 782 (effective 
Nov. 1, 2014). Accordingly, offenses involving drug quantities that 
trigger a five-year statutory minimum are assigned a base offense level 
of 24, corresponding to a sentencing guideline range of 51 to 63 months 
for a defendant in Criminal History Category I (a guideline range that 
straddles the five-year statutory minimum). Similarly, offenses that 
trigger a ten-year statutory minimum are assigned a base offense level 
of 30, corresponding to a sentencing guideline range of 97 to 121 
months for a defendant in Criminal History Category I (a guideline 
range that straddles the ten-year statutory minimum).
Feedback From Stakeholders
    The Commission has received comment over the years indicating that 
Sec.  2D1.1 overly relies on drug type and quantity as a measure of 
offense culpability and results in sentences greater than necessary to 
accomplish the purposes of sentencing. Some commenters have suggested 
that the Commission should again lower penalties in Sec.  2D1.1, citing 
Commission data indicating that judges impose sentences below the 
guideline range in most drug trafficking cases. Commission data 
reflects that the difference between the average guideline minimum and 
average sentence imposed varies depending on the base offense level, 
with the greatest difference occurring at the highest offense levels on 
the Drug Quantity Table. In addition, commenters have raised concerns 
that the mitigating role adjustment from Chapter Three, Part B (Role in 
the Offense) is applied inconsistently in drug trafficking cases and 
does not adequately reflect individuals' roles in drug trafficking 
offenses.
Subpart 1 (Setting a New Highest Base Offense Level in Drug Quantity 
Table)
    Subpart 1 of Part A of the proposed amendment sets forth three 
options for amending Sec.  2D1.1 to set the highest base offense level 
in the Drug Quantity Table at subsection (c) at a lower base offense 
level.
    Option 1 would set the highest base offense level in the Drug 
Quantity Table at level 34. Accordingly, it would delete subsections 
(c)(1) and (c)(2) of the table, redesignate subsection (c)(3) as 
subsection (c)(1), and renumber the remainder of the provisions of the 
table accordingly.
    Option 2 would set the highest base offense level in the Drug 
Quantity Table at level 32. Accordingly, it would delete subsections 
(c)(1) through (c)(3) of the table, redesignate subsection (c)(4) as 
subsection (c)(1), and renumber the

[[Page 8987]]

remainder of the provisions of the table accordingly.
    Option 3 would set the highest base offense level in the Drug 
Quantity Table at level 30. Accordingly, it would delete subsections 
(c)(1) through (c)(4) of the table, redesignate subsection (c)(5) as 
subsection (c)(1), and renumber the remainder of the provisions of the 
table accordingly.
    Subpart 1 brackets Sec.  2D1.1(a)(5) to indicate that all three 
options would require changes to the special provisions that apply when 
a defendant receives a mitigating role adjustment under Sec.  3B1.2. 
The third issue for comment below provides some background information 
on Sec.  2D1.1(a)(5) and sets forth a request for comment on the 
changes that should be made to this provision in light of the revisions 
proposed by the three options described above.
    Additional issues for comment are also provided.
Subpart 2 (New Trafficking Functions Adjustment)
    Subpart 2 of Part A of the proposed amendment would add a new 
specific offense characteristic providing for a [2][4][6]-level 
reduction relating to low-level trafficking functions. It provides two 
options for this new reduction.
    Option 1 would make the reduction applicable if Sec.  2D1.1(b)(2) 
(relating to use of violence) does not apply, [the defendant did not 
possess a firearm or other dangerous weapon (or induce another 
participant to do so) in connection with the offense,] and [the 
defendant's most serious conduct in the offense was limited to][the 
defendant's primary function in the offense was] performing any of the 
low-level trafficking functions listed in the new provision.
    Option 2, like Option 1, would make the reduction applicable if 
Sec.  2D1.1(b)(2) does not apply, [the defendant did not possess a 
firearm or other dangerous weapon (or induce another participant to do 
so) in connection with the offense,] and [the defendant's most serious 
conduct in the offense was limited to][the defendant's primary function 
in the offense was] a low-level trafficking function. However, unlike 
Option 1, Option 2 would not list low-level trafficking functions to 
which the reduction would necessarily apply. Instead, Option 2 would 
list functions that may qualify for the reduction as examples.
    Both options would include a provision indicating that the 
reduction at proposed Sec.  2D1.1(b)(17) shall apply regardless of 
whether the defendant acted alone or in concert with others. In 
addition, Options 1 and 2 would add a special instruction to Sec.  
2D1.1 providing that Sec.  3B1.2 does not apply to cases where the 
defendant's offense level is determined under Sec.  2D1.1. It would 
also include a new application note in the Commentary to Sec.  2D1.1 
relating to the new low-level trafficking functions adjustment. The new 
application note would provide guidance taken from the Commentary to 
Sec.  3B1.2. Options 1 and 2 would also make conforming changes in 
Sec.  2D1.1 to replace all references to Sec.  3B1.2 with references to 
the new low-level trafficking functions reduction. These conforming 
changes include tying the additional decreases and mitigating role cap 
at Sec.  2D1.1(a)(5) to the application of the proposed reduction at 
new Sec.  2D1.1(b)(17) for low-level trafficking functions.
    Issues for comment are also provided.
Subpart 1 (Setting a New Highest Base Offense Level in Drug Quantity 
Table)
Proposed Amendment
    [Options 1, 2, and 3 set forth in this subpart would require 
changes to Sec.  2D1.1(a)(5). See the third issue for comment below on 
possible changes that should be made to Sec.  2D1.1(a)(5) in light of 
the revisions proposed by these three options.]
    [Option 1 (Highest Base Offense Level at Level 34):
    Section 2D1.1(c) is amended--
    by striking paragraphs (1), (2), and (3) as follows:
    ``(1)  90 KG or more of Heroin; Level 38
     450 KG or more of Cocaine;
     25.2 KG or more of Cocaine Base;
     90 KG or more of PCP, or 9 KG or more of PCP (actual);
     45 KG or more of Methamphetamine, or
    4.5 KG or more of Methamphetamine (actual), or
    4.5 KG or more of `Ice';
     45 KG or more of Amphetamine, or
    4.5 KG or more of Amphetamine (actual);
     900 G or more of LSD;
     36 KG or more of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-
4-piperidinyl] Propanamide);
     9 KG or more of a Fentanyl Analogue;
     90,000 KG or more of Marihuana;
     18,000 KG or more of Hashish;
     1,800 KG or more of Hashish Oil;
     90,000,000 units or more of Ketamine;
     90,000,000 units or more of Schedule I or II Depressants;
     5,625,000 units or more of Flunitrazepam;
     90,000 KG or more of Converted Drug Weight.
    (2)  At least 30 KG but less than 90 KG of Heroin; Level 36
     At least 150 KG but less than 450 KG of Cocaine;
     At least 8.4 KG but less than 25.2 KG of Cocaine Base;
     At least 30 KG but less than 90 KG of PCP, or
    at least 3 KG but less than 9 KG of PCP (actual);
     At least 15 KG but less than 45 KG of Methamphetamine, or
    at least 1.5 KG but less than 4.5 KG of Methamphetamine (actual), 
or
    at least 1.5 KG but less than 4.5 KG of `Ice';
     At least 15 KG but less than 45 KG of Amphetamine, or
    at least 1.5 KG but less than 4.5 KG of Amphetamine (actual);
     At least 300 G but less than 900 G of LSD;
     At least 12 KG but less than 36 KG of Fentanyl (N-phenyl-
N-[1-(2-phenylethyl)-4-piperidinyl] Propanamide);
     At least 3 KG but less than 9 KG of a Fentanyl Analogue;
     At least 30,000 KG but less than 90,000 KG of Marihuana;
     At least 6,000 KG but less than 18,000 KG of Hashish;
     At least 600 KG but less than 1,800 KG of Hashish Oil;
     At least 30,000,000 units but less than 90,000,000 units 
of Ketamine;
     At least 30,000,000 units but less than 90,000,000 units 
of Schedule I or II Depressants;
     At least 1,875,000 units but less than 5,625,000 units of 
Flunitrazepam;
     At least 30,000 KG but less than 90,000 KG of Converted 
Drug Weight.
    (3)  At least 10 KG but less than 30 KG of Heroin; Level 34
     At least 50 KG but less than 150 KG of Cocaine;
     At least 2.8 KG but less than 8.4 KG of Cocaine Base;
     At least 10 KG but less than 30 KG of PCP, or
    at least 1 KG but less than 3 KG of PCP (actual);
     At least 5 KG but less than 15 KG of Methamphetamine, or
    at least 500 G but less than 1.5 KG of Methamphetamine (actual), or
    at least 500 G but less than 1.5 KG of `Ice';
     At least 5 KG but less than 15 KG of Amphetamine, or
    at least 500 G but less than 1.5 KG of Amphetamine (actual);
     At least 100 G but less than 300 G of LSD;
     At least 4 KG but less than 12 KG of Fentanyl (N-phenyl-N-
[1-(2-phenylethyl)-4-piperidinyl] Propanamide);

[[Page 8988]]

     At least 1 KG but less than 3 KG of a Fentanyl Analogue;
     At least 10,000 KG but less than 30,000 KG of Marihuana;
     At least 2,000 KG but less than 6,000 KG of Hashish;
     At least 200 KG but less than 600 KG of Hashish Oil;
     At least 10,000,000 but less than 30,000,000 units of 
Ketamine;
     At least 10,000,000 but less than 30,000,000 units of 
Schedule I or II Depressants;
     At least 625,000 but less than 1,875,000 units of 
Flunitrazepam;
     At least 10,000 KG but less than 30,000 KG of Converted 
Drug Weight.'';
    by inserting the following new paragraph (1):
    ``(1)  10 KG or more of Heroin; Level 34
     50 KG or more of Cocaine;
     2.8 KG or more of Cocaine Base;
     10 KG or more of PCP, or
    1 KG or more of PCP (actual);
     5 KG or more of Methamphetamine, or
    500 G or more of Methamphetamine (actual), or
    500 G or more of `Ice';
     5 KG or more of Amphetamine, or
    500 G or more of Amphetamine (actual);
     100 G or more of LSD;
     4 KG or more of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] Propanamide);
     1 KG or more of a Fentanyl Analogue;
     10,000 KG or more of Marihuana;
     2,000 KG or more of Hashish;
     200 KG or more of Hashish Oil;
     10,000,000 units or more of Ketamine;
     10,000,000 units or more of Schedule I or II Depressants;
     625,000 units or more of Flunitrazepam;
     10,000 KG or more of Converted Drug Weight.'';
    and by redesignating paragraphs (4) through (17) as paragraphs (2) 
through (15), respectively.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 27(B) by striking ``level 38'' each place such term 
appears and inserting ``level 34''.]
    [Option 2 (Highest Base Offense Level at Level 32):
    Section 2D1.1(c) is amended--
    by striking paragraphs (1), (2), (3), and (4) as follows:
    ``(1)  90 KG or more of Heroin; Level 38
     450 KG or more of Cocaine;
     25.2 KG or more of Cocaine Base;
     90 KG or more of PCP, or 9 KG or more of PCP (actual);
     45 KG or more of Methamphetamine, or
    4.5 KG or more of Methamphetamine (actual), or
    4.5 KG or more of `Ice';
     45 KG or more of Amphetamine, or
    4.5 KG or more of Amphetamine (actual);
     900 G or more of LSD;
     36 KG or more of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-
4-piperidinyl] Propanamide);
     9 KG or more of a Fentanyl Analogue;
     90,000 KG or more of Marihuana;
     18,000 KG or more of Hashish;
     1,800 KG or more of Hashish Oil;
     90,000,000 units or more of Ketamine;
     90,000,000 units or more of Schedule I or II Depressants;
     5,625,000 units or more of Flunitrazepam;
     90,000 KG or more of Converted Drug Weight.
    (2)  At least 30 KG but less than 90 KG of Heroin; Level 36
     At least 150 KG but less than 450 KG of Cocaine;
     At least 8.4 KG but less than 25.2 KG of Cocaine Base;
     At least 30 KG but less than 90 KG of PCP, or
    at least 3 KG but less than 9 KG of PCP (actual);
     At least 15 KG but less than 45 KG of Methamphetamine, or
    at least 1.5 KG but less than 4.5 KG of Methamphetamine (actual), 
or
    at least 1.5 KG but less than 4.5 KG of `Ice';
     At least 15 KG but less than 45 KG of Amphetamine, or
    at least 1.5 KG but less than 4.5 KG of Amphetamine (actual);
     At least 300 G but less than 900 G of LSD;
     At least 12 KG but less than 36 KG of Fentanyl (N-phenyl-
N-[1-(2-phenylethyl)-4-piperidinyl] Propanamide);
     At least 3 KG but less than 9 KG of a Fentanyl Analogue;
     At least 30,000 KG but less than 90,000 KG of Marihuana;
     At least 6,000 KG but less than 18,000 KG of Hashish;
     At least 600 KG but less than 1,800 KG of Hashish Oil;
     At least 30,000,000 units but less than 90,000,000 units 
of Ketamine;
     At least 30,000,000 units but less than 90,000,000 units 
of Schedule I or II Depressants;
     At least 1,875,000 units but less than 5,625,000 units of 
Flunitrazepam;
     At least 30,000 KG but less than 90,000 KG of Converted 
Drug Weight.
    (3)  At least 10 KG but less than 30 KG of Heroin; Level 34
     At least 50 KG but less than 150 KG of Cocaine;
     At least 2.8 KG but less than 8.4 KG of Cocaine Base;
     At least 10 KG but less than 30 KG of PCP, or
    at least 1 KG but less than 3 KG of PCP (actual);
     At least 5 KG but less than 15 KG of Methamphetamine, or
    at least 500 G but less than 1.5 KG of Methamphetamine (actual), or
    at least 500 G but less than 1.5 KG of `Ice';
     At least 5 KG but less than 15 KG of Amphetamine, or
    at least 500 G but less than 1.5 KG of Amphetamine (actual);
     At least 100 G but less than 300 G of LSD;
     At least 4 KG but less than 12 KG of Fentanyl (N-phenyl-N-
[1-(2-phenylethyl)-4-piperidinyl] Propanamide);
     At least 1 KG but less than 3 KG of a Fentanyl Analogue;
     At least 10,000 KG but less than 30,000 KG of Marihuana;
     At least 2,000 KG but less than 6,000 KG of Hashish;
     At least 200 KG but less than 600 KG of Hashish Oil;
     At least 10,000,000 but less than 30,000,000 units of 
Ketamine;
     At least 10,000,000 but less than 30,000,000 units of 
Schedule I or II Depressants;
     At least 625,000 but less than 1,875,000 units of 
Flunitrazepam;
     At least 10,000 KG but less than 30,000 KG of Converted 
Drug Weight.
    (4)  At least 3 KG but less than 10 KG of Heroin; Level 32
     At least 15 KG but less than 50 KG of Cocaine;
     At least 840 G but less than 2.8 KG of Cocaine Base;
     At least 3 KG but less than 10 KG of PCP, or
    at least 300 G but less than 1 KG of PCP (actual);
     At least 1.5 KG but less than 5 KG of Methamphetamine, or
    at least 150 G but less than 500 G of Methamphetamine (actual), or
    at least 150 G but less than 500 G of `Ice';
     At least 1.5 KG but less than 5 KG of Amphetamine, or
    at least 150 G but less than 500 G of Amphetamine (actual);
     At least 30 G but less than 100 G of LSD;
     At least 1.2 KG but less than 4 KG of Fentanyl (N-phenyl-
N-[1-(2-phenylethyl)-4-piperidinyl] Propanamide);
     At least 300 G but less than 1 KG of a Fentanyl Analogue;

[[Page 8989]]

     At least 3,000 KG but less than 10,000 KG of Marihuana;
     At least 600 KG but less than 2,000 KG of Hashish;
     At least 60 KG but less than 200 KG of Hashish Oil;
     At least 3,000,000 but less than 10,000,000 units of 
Ketamine;
     At least 3,000,000 but less than 10,000,000 units of 
Schedule I or II Depressants;
     At least 187,500 but less than 625,000 units of 
Flunitrazepam;
     At least 3,000 KG but less than 10,000 KG of Converted 
Drug Weight.'';
    by inserting the following new paragraph (1):
    ``(1)  3 KG or more of Heroin; Level 32
     15 KG or more of Cocaine;
     840 G or more of Cocaine Base;
     3 KG or more of PCP, or
    300 G or more of PCP (actual);
     1.5 KG or more of Methamphetamine, or
    150 G or more of Methamphetamine (actual), or
    150 G or more of `Ice';
     1.5 KG or more of Amphetamine, or
    150 G or more of Amphetamine (actual);
     30 G or more of LSD;
     1.2 KG or more of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-
4-piperidinyl] Propanamide);
     300 G or more of a Fentanyl Analogue;
     3,000 KG or more of Marihuana;
     600 KG or more of Hashish;
     60 KG or more of Hashish Oil;
     3,000,000 units or more of Ketamine;
     3,000,000 units or more of Schedule I or II Depressants;
     187,500 units or more of Flunitrazepam;
     3,000 KG or more of Converted Drug Weight.'';
    and by redesignating paragraphs (5) through (17) as paragraphs (2) 
through (14), respectively.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 27(B) by striking ``level 38'' each place such term 
appears and inserting ``level 32''.]
    [Option 3 (Highest Base Offense Level at Level 30):
    Section 2D1.1(c) is amended--
    by striking paragraphs (1), (2), (3), (4), and (5) as follows:
    ``(1)  90 KG or more of Heroin; Level 38
     450 KG or more of Cocaine;
     25.2 KG or more of Cocaine Base;
     90 KG or more of PCP, or 9 KG or more of PCP (actual);
     45 KG or more of Methamphetamine, or
    4.5 KG or more of Methamphetamine (actual), or
    4.5 KG or more of `Ice';
     45 KG or more of Amphetamine, or
    4.5 KG or more of Amphetamine (actual);
     900 G or more of LSD;
     36 KG or more of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-
4-piperidinyl] Propanamide);
     9 KG or more of a Fentanyl Analogue;
     90,000 KG or more of Marihuana;
     18,000 KG or more of Hashish;
     1,800 KG or more of Hashish Oil;
     90,000,000 units or more of Ketamine;
     90,000,000 units or more of Schedule I or II Depressants;
     5,625,000 units or more of Flunitrazepam;
     90,000 KG or more of Converted Drug Weight.
    (2)  At least 30 KG but less than 90 KG of Heroin; Level 36
     At least 150 KG but less than 450 KG of Cocaine;
     At least 8.4 KG but less than 25.2 KG of Cocaine Base;
     At least 30 KG but less than 90 KG of PCP, or
    at least 3 KG but less than 9 KG of PCP (actual);
     At least 15 KG but less than 45 KG of Methamphetamine, or
    at least 1.5 KG but less than 4.5 KG of Methamphetamine (actual), 
or
    at least 1.5 KG but less than 4.5 KG of `Ice';
     At least 15 KG but less than 45 KG of Amphetamine, or
    at least 1.5 KG but less than 4.5 KG of Amphetamine (actual);
     At least 300 G but less than 900 G of LSD;
     At least 12 KG but less than 36 KG of Fentanyl (N-phenyl-
N-[1-(2-phenylethyl)-4-piperidinyl] Propanamide);
     At least 3 KG but less than 9 KG of a Fentanyl Analogue;
     At least 30,000 KG but less than 90,000 KG of Marihuana;
     At least 6,000 KG but less than 18,000 KG of Hashish;
     At least 600 KG but less than 1,800 KG of Hashish Oil;
     At least 30,000,000 units but less than 90,000,000 units 
of Ketamine;
     At least 30,000,000 units but less than 90,000,000 units 
of Schedule I or II Depressants;
     At least 1,875,000 units but less than 5,625,000 units of 
Flunitrazepam;
     At least 30,000 KG but less than 90,000 KG of Converted 
Drug Weight.
    (3)  At least 10 KG but less than 30 KG of Heroin; Level 34
     At least 50 KG but less than 150 KG of Cocaine;
     At least 2.8 KG but less than 8.4 KG of Cocaine Base;
     At least 10 KG but less than 30 KG of PCP, or
    at least 1 KG but less than 3 KG of PCP (actual);
     At least 5 KG but less than 15 KG of Methamphetamine, or
    at least 500 G but less than 1.5 KG of Methamphetamine (actual), or
    at least 500 G but less than 1.5 KG of `Ice';
     At least 5 KG but less than 15 KG of Amphetamine, or
    at least 500 G but less than 1.5 KG of Amphetamine (actual);
     At least 100 G but less than 300 G of LSD;
     At least 4 KG but less than 12 KG of Fentanyl (N-phenyl-N-
[1-(2-phenylethyl)-4-piperidinyl] Propanamide);
     At least 1 KG but less than 3 KG of a Fentanyl Analogue;
     At least 10,000 KG but less than 30,000 KG of Marihuana;
     At least 2,000 KG but less than 6,000 KG of Hashish;
     At least 200 KG but less than 600 KG of Hashish Oil;
     At least 10,000,000 but less than 30,000,000 units of 
Ketamine;
     At least 10,000,000 but less than 30,000,000 units of 
Schedule I or II Depressants;
     At least 625,000 but less than 1,875,000 units of 
Flunitrazepam;
     At least 10,000 KG but less than 30,000 KG of Converted 
Drug Weight.
    (4)  At least 3 KG but less than 10 KG of Heroin; Level 32
     At least 15 KG but less than 50 KG of Cocaine;
     At least 840 G but less than 2.8 KG of Cocaine Base;
     At least 3 KG but less than 10 KG of PCP, or
    at least 300 G but less than 1 KG of PCP (actual);
     At least 1.5 KG but less than 5 KG of Methamphetamine, or
    at least 150 G but less than 500 G of Methamphetamine (actual), or
    at least 150 G but less than 500 G of `Ice';
     At least 1.5 KG but less than 5 KG of Amphetamine, or
    at least 150 G but less than 500 G of Amphetamine (actual);
     At least 30 G but less than 100 G of LSD;
     At least 1.2 KG but less than 4 KG of Fentanyl (N-phenyl-
N-[1-(2-phenylethyl)-4-piperidinyl] Propanamide);
     At least 300 G but less than 1 KG of a Fentanyl Analogue;
     At least 3,000 KG but less than 10,000 KG of Marihuana;

[[Page 8990]]

     At least 600 KG but less than 2,000 KG of Hashish;
     At least 60 KG but less than 200 KG of Hashish Oil;
     At least 3,000,000 but less than 10,000,000 units of 
Ketamine;
     At least 3,000,000 but less than 10,000,000 units of 
Schedule I or II Depressants;
     At least 187,500 but less than 625,000 units of 
Flunitrazepam;
     At least 3,000 KG but less than 10,000 KG of Converted 
Drug Weight.
    (5)  At least 1 KG but less than 3 KG of Heroin; Level 30
     At least 5 KG but less than 15 KG of Cocaine;
     At least 280 G but less than 840 G of Cocaine Base;
     At least 1 KG but less than 3 KG of PCP, or
    at least 100 G but less than 300 G of PCP (actual);
     At least 500 G but less than 1.5 KG of Methamphetamine, or
    at least 50 G but less than 150 G of Methamphetamine (actual), or
    at least 50 G but less than 150 G of `Ice';
     At least 500 G but less than 1.5 KG of Amphetamine, or
    at least 50 G but less than 150 G of Amphetamine (actual);
     At least 10 G but less than 30 G of LSD;
     At least 400 G but less than 1.2 KG of Fentanyl (N-phenyl-
N-[1-(2-phenylethyl)-4-piperidinyl] Propanamide);
     At least 100 G but less than 300 G of a Fentanyl Analogue;
     At least 1,000 KG but less than 3,000 KG of Marihuana;
     At least 200 KG but less than 600 KG of Hashish;
     At least 20 KG but less than 60 KG of Hashish Oil;
     At least 1,000,000 but less than 3,000,000 units of 
Ketamine;
     At least 1,000,000 but less than 3,000,000 units of 
Schedule I or II Depressants;
     At least 62,500 but less than 187,500 units of 
Flunitrazepam;
     At least 1,000 KG but less than 3,000 KG of Converted Drug 
Weight.'';
    by inserting the following new paragraph (1):
    ``(1)  1 KG or more of Heroin; Level 30
     5 KG or more of Cocaine;
     280 G or more of Cocaine Base;
     1 KG or more of PCP, or
    100 G or more of PCP (actual);
     500 G or more of Methamphetamine, or
    50 G or more of Methamphetamine (actual), or
    50 G or more of `Ice';
     500 G or more of Amphetamine, or
    50 G or more of Amphetamine (actual);
     10 G or more of LSD;
     400 G or more of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-
4-piperidinyl] Propanamide);
     100 G or more of a Fentanyl Analogue;
     1,000 KG or more of Marihuana;
     200 KG or more of Hashish;
     20 KG or more of Hashish Oil;
     1,000,000 units or more of Ketamine;
     1,000,000 units or more of Schedule I or II Depressants;
     62,500 units or more of Flunitrazepam;
     1,000 KG or more of Converted Drug Weight.'';
    and by redesignating paragraphs (6) through (17) as paragraphs (2) 
through (13), respectively.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 27(B) by striking ``level 38'' each place such term 
appears and inserting ``level 30''.]
Issues for Comment
    1. Commission data reflects that the difference between the average 
guideline minimum and average sentence imposed varies depending on the 
base offense level, with the greatest difference occurring at the 
highest base offense levels. Subpart 1 sets forth three options for 
amending the Drug Quantity Table at subsection (c) of Sec.  2D1.1 
(Unlawful Manufacturing, Importing, Exporting, or Trafficking 
(Including Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy) to set the highest base offense level at [34][32][30]. 
Should the Commission consider setting the highest base offense level 
at another level? If so, what is the appropriate highest base offense 
level for the Drug Quantity Table?
    2. Subpart 1 of Part A of the proposed amendment would amend Sec.  
2D1.1 to reduce the highest base offense level in the Drug Quantity 
Table. The Commission seeks comment on whether it should instead 
consider reducing all base offense levels in the Drug Quantity Table. 
If so, to what extent? Should this reduction apply to all drug types 
and at all offense levels? Are there drug types for which the base 
offense levels should not be reduced or for which there should be a 
different base offense level reduction?
    3. The mitigating role cap at Sec.  2D1.1(a)(5) provides a decrease 
for base offense levels of 32 or greater when the mitigating role 
adjustment at Sec.  3B1.2 applies. The mitigating role cap also sets 
forth a maximum base offense level of 32 based on the application of 
the 4-level reduction (``minimal participant'') at Sec.  3B1.2(a). 
Subpart 1 sets forth three options to decrease the highest base offense 
level of the Drug Quantity Table to level [34][32][30]. If the 
Commission adopts any of these options, it will require changes to the 
mitigating role cap at Sec.  2D1.1(a)(5). The Commission seeks comment 
on how it should address the interaction between the options set forth 
in Subpart 1 and the mitigating role cap. Specifically, should the 
Commission retain some or all clauses in the mitigating role cap if it 
sets a highest base offense level at or below the current mitigating 
role cap? If so, what base offense levels should trigger the mitigating 
role cap? What is the appropriate decrease from those base offense 
levels?
    4. Section 2D1.11 (Unlawfully Distributing, Importing, Exporting or 
Possessing a Listed Chemical; Attempt or Conspiracy) includes two 
chemical quantity tables at subsections (d) and (e). Section 2D1.11 is 
generally structured to provide base offense levels that are tied to, 
but less severe than, the base offense levels in Sec.  2D1.1 for 
offenses involving the same substance. If the Commission were to 
promulgate Option 1, 2, or 3 from Subpart 1, should the Commission 
amend the chemical quantity tables at Sec.  2D1.11?
    5. Subpart 1 of Part A of the Proposed Amendment sets forth three 
options to decrease the highest base offense level of the Drug Quantity 
Table from level 38 to level [34][32][30]. Part B of the proposed 
amendment would revise the Drug Quantity Table with respect to 
methamphetamine, which is the most common drug type in federal drug 
trafficking offenses. The Commission seeks comment on the interaction 
between these parts of the proposed amendment. If the Commission were 
to amend the Drug Quantity Table relating to methamphetamine, should 
that affect the Commission's consideration of a reduction of the 
highest base offense level in the Drug Quantity Table? If so, how?
Subpart 2 (New Trafficking Functions Adjustment)
Proposed Amendment
    Section 2D1.1(a)(5) is amended by striking ``an adjustment under 
Sec.  3B1.2 (Mitigating Role)'' and inserting ``a reduction under 
subsection (b)(17)'', and by striking ``the 4-level (`minimal 
participant') reduction in Sec.  3B1.2(a)'' and inserting ``a reduction 
under subsection (b)(17)''.
    Section 2D1.1(b) is amended--

[[Page 8991]]

    in paragraph (5) by striking ``an adjustment under Sec.  3B1.2 
(Mitigating Role)'' and inserting ``a reduction under subsection 
(b)(17)'';
    by redesignating paragraphs (17) and (18) as paragraphs (18) and 
(19), respectively;
    by inserting the following new paragraph (17):
    [Option 1 (Specifying functions that trigger reduction):
    ``(17) If--
    (A) subsection (b)(2) does not apply;
    [(B) the defendant did not possess a firearm or other dangerous 
weapon (or induce another participant to do so) in connection with the 
offense;] and
    (C) [the defendant's most serious conduct in the offense was 
limited to performing any of the following low-level trafficking 
functions][the defendant's primary function in the offense was 
performing any of the following low-level trafficking functions]--
    (i) carried one or more controlled substances (regardless of the 
quantity of the controlled substance involved) on their person, 
vehicle, vessel, or aircraft for purposes of transporting the 
controlled substance, without holding an ownership interest in the 
controlled substance or claiming a significant share of profits from 
the offense;
    (ii) performed any low-level function in the offense other than the 
selling of controlled substances (such as running errands, sending or 
receiving phone calls or messages, scouting, receiving packages, 
packaging controlled substances, acting as a lookout, storing 
controlled substances, or acting as a deckhand or crew member on a 
vessel or aircraft used to transport controlled substances), without 
holding an ownership interest in the controlled substance or claiming a 
significant share of profits from the offense; or
    (iii) distributed retail or user-level quantities of controlled 
substances to end users [or similarly situated distributors] and [one 
or more of the following factors is][two or more of the following 
factors are] present: (I) the defendant was motivated by an intimate or 
familial relationship or by threats or fear to commit the offense and 
was otherwise unlikely to commit such an offense; (II) the defendant 
was motivated primarily by a substance abuse disorder; (III) the 
defendant was engaged in the distribution of controlled substances 
infrequently or for brief duration; (IV) the defendant received little 
or no compensation from the distribution of the controlled substance 
involved in the offense; [or (V) the defendant had limited knowledge of 
the distribution network and an additional factor similar to any of the 
factors described in subclauses (I) through (IV) is present];
    decrease by [2][4][6] levels. This reduction shall apply regardless 
of whether the defendant acted alone or in concert with others.'';]
    [Option 2 (Functions listed as examples):
    ``(17) If--
    (A) subsection (b)(2) does not apply;
    [(B) the defendant did not possess a firearm or other dangerous 
weapon (or induce another participant to do so) in connection with the 
offense;] and
    (C) [the defendant's most serious conduct in the offense was 
limited to performing a low-level trafficking function][the defendant's 
primary function in the offense was performing a low-level trafficking 
function]; decrease by [2][4][6] levels. This reduction shall apply 
regardless of whether the defendant acted alone or in concert with 
others.
    Examples:
    Functions that may qualify as low-level trafficking functions, 
depending on the scope and structure of the criminal activity, include 
where the defendant:
    (A) carried one or more controlled substances (regardless of the 
quantity of the controlled substance involved) on their person, 
vehicle, vessel, or aircraft for purposes of transporting the 
controlled substance, without holding an ownership interest in the 
controlled substance or claiming a significant share of profits from 
the offense;
    (B) performed any low-level function in the offense other than the 
selling of controlled substances (such as running errands, sending or 
receiving phone calls or messages, scouting, receiving packages, 
packaging controlled substances, acting as a lookout, storing 
controlled substances, or acting as a deckhand or crew member on a 
vessel or aircraft used to transport controlled substances), without 
holding an ownership interest in the controlled substance or claiming a 
significant share of profits from the offense; or
    (C) distributed retail or user-level quantities of controlled 
substances to end users [or similarly situated distributors] and [one 
or more of the following factors is][two or more of the following 
factors are] present: (i) the defendant was motivated by an intimate or 
familial relationship or by threats or fear to commit the offense and 
was otherwise unlikely to commit such an offense; (ii) the defendant 
was motivated primarily by a substance abuse disorder; (iii) the 
defendant was engaged in the distribution of controlled substances 
infrequently or for brief duration; (iv) the defendant received little 
or no compensation from the distribution of the controlled substance 
involved in the offense; [or (v) the defendant had limited knowledge of 
the distribution network and an additional factor similar to any of the 
factors described in clauses (i) through (iv) is present].'';]
    and in paragraph (18) (as so redesignated) by striking ``the 4-
level (`minimal participant') reduction in Sec.  3B1.2(a)'' and 
inserting ``a reduction under subsection (b)(17)''.
    Section 2D1.1(e) is amended--
    in the heading by striking ``Instruction'' and inserting 
``Instructions'';
    and by inserting at the end the following new paragraph (2):
    ``(2) If the defendant's offense level is determined under this 
guideline, do not apply Sec.  3B1.2 (Mitigating Role).''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended--
    by redesignating Notes 21 through 27 as Notes 22 through 28, 
respectively;
    by inserting the following new Note 21:
    ``21. Application of Subsection (b)(17).--
    (A) A defendant who is accountable under Sec.  1B1.3 (Relevant 
Conduct) only for the conduct in which the defendant personally was 
involved and who performs a low-level trafficking function may receive 
an adjustment under subsection (b)(17). For example, a defendant who is 
convicted of a drug trafficking offense, whose participation in that 
offense was limited to transporting or storing drugs, and who is 
accountable under Sec.  1B1.3 only for the quantity of drugs the 
defendant personally transported or stored may receive an adjustment 
under subsection (b)(17).
    (B) If a defendant has received a lower offense level by virtue of 
being convicted of an offense significantly less serious than warranted 
by the defendant's actual criminal conduct, a reduction under 
subsection (b)(17) ordinarily is not warranted because such defendant 
is not substantially less culpable than a defendant whose only conduct 
involved the less serious offense.'';
    and in Note 22 (as so redesignated) by striking ``(b)(18)'' both 
places it appears and inserting ``(b)(19)''.
    The Commentary to Sec.  2D1.1 captioned ``Background'' is amended 
by striking ``(b)(17)'' and inserting ``(b)(18)''.
    Section 2D1.14(a)(1) is amended by striking ``(b)(18)'' and 
inserting ``(b)(19)''.
    The Commentary to Sec.  3B1.2 captioned ``Application Notes'' is 
amended--

[[Page 8992]]

    in Note 3(A) by striking the following:
    ``A defendant who is accountable under Sec.  1B1.3 (Relevant 
Conduct) only for the conduct in which the defendant personally was 
involved and who performs a limited function in the criminal activity 
may receive an adjustment under this guideline. For example, a 
defendant who is convicted of a drug trafficking offense, whose 
participation in that offense was limited to transporting or storing 
drugs and who is accountable under Sec.  1B1.3 only for the quantity of 
drugs the defendant personally transported or stored may receive an 
adjustment under this guideline.
    Likewise, a defendant who is accountable under Sec.  1B1.3 for a 
loss amount under Sec.  2B1.1 (Theft, Property Destruction, and Fraud) 
that greatly exceeds the defendant's personal gain from a fraud offense 
or who had limited knowledge of the scope of the scheme may receive an 
adjustment under this guideline. For example, a defendant in a health 
care fraud scheme, whose participation in the scheme was limited to 
serving as a nominee owner and who received little personal gain 
relative to the loss amount, may receive an adjustment under this 
guideline.'',
    and inserting the following:
    ``A defendant who is accountable under Sec.  1B1.3 (Relevant 
Conduct) only for the conduct in which the defendant personally was 
involved and who performs a limited function in the criminal activity 
may receive an adjustment under this guideline. For example, a 
defendant who is accountable under Sec.  1B1.3 for a loss amount under 
Sec.  2B1.1 (Theft, Property Destruction, and Fraud) that greatly 
exceeds the defendant's personal gain from a fraud offense or who had 
limited knowledge of the scope of the scheme may receive an adjustment 
under this guideline. For example, a defendant in a health care fraud 
scheme, whose participation in the scheme was limited to serving as a 
nominee owner and who received little personal gain relative to the 
loss amount, may receive an adjustment under this guideline.'';
    and in Note 6 by striking the following:
    ``Application of Role Adjustment in Certain Drug Cases.--In a case 
in which the court applied Sec.  2D1.1 and the defendant's base offense 
level under that guideline was reduced by operation of the maximum base 
offense level in Sec.  2D1.1(a)(5), the court also shall apply the 
appropriate adjustment under this guideline.'',
    and inserting the following:
    ``Non-Applicability of Role Adjustment to Cases Where Offense Level 
is Determined under Sec.  2D1.1.--In accordance with subsection (e)(2) 
of Sec.  2D1.1 (Unlawful Manufacturing, Importing, Exporting, or 
Trafficking (Including Possession with Intent to Commit These 
Offenses); Attempt or Conspiracy), Sec.  3B1.2 does not apply to a 
defendant whose offense level is determined under Sec.  2D1.1.''.
Issues for Comment
    1. Subpart 2 of Part A of the proposed amendment would add a new 
specific offense characteristic at subsection (b) of Sec.  2D1.1 
(Unlawful Manufacturing, Importing, Exporting, or Trafficking 
(Including Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy) relating to low-level trafficking functions in drug 
offenses. The Commission has proposed that this specific offense 
characteristic decrease the offense levels by [2][4][6] levels. Should 
the adjustment be greater or lesser? Should the reduction be the same 
for all low-level trafficking functions?
    2. The Commission seeks comment on whether the new specific offense 
characteristic at Sec.  2D1.1(b)(17) properly captures low-level 
trafficking functions. Are there other factors that this provision 
should capture? Are there factors included in the proposed amendment 
that should not be included?
    3. One of the low-level trafficking functions listed in proposed 
Sec.  2D1.1(b)(17) is the distribution of retail or user-level 
quantities of controlled substances when certain mitigating 
circumstances are present. The Commission seeks comment on whether the 
distribution of retail or user-level quantities of controlled 
substances, when certain mitigating circumstances are present, merits a 
reduction. If so, what mitigating circumstances should the Commission 
provide?
    4. Section 2D1.1(a)(5) provides an additional decrease to the base 
offense level based on the application of the mitigating role 
adjustment at Sec.  3B1.2 (Mitigating Role). How should the Commission 
amend Sec.  2D1.1(a)(5) to account for the new low-level trafficking 
functions adjustment?
    5. Section 2D1.1(a)(5) also sets forth a maximum base offense level 
of 32 based on the application of the 4-level reduction (``minimal 
participant'') at Sec.  3B1.2(a). How should the Commission amend Sec.  
2D1.1(a)(5) to account for the new low-level trafficking functions 
adjustment?
    6. Subpart 2 of Part A of the proposed amendment includes a special 
instruction providing that Sec.  3B1.2 (Mitigating Role) does not apply 
to cases where the defendant's offense level is determined under Sec.  
2D1.1. The Commission seeks comment on whether this special instruction 
is appropriate.
    7. Some guidelines provide an instruction to use the offense level 
from another Chapter Two offense guideline, which generally refers to 
the entire offense guideline (i.e., the base offense level, specific 
offense characteristics, cross references, and special instructions). 
This can result in a case in which the defendant is sentenced under a 
guideline other than Sec.  2D1.1 but the offense level is determined 
under Sec.  2D1.1. In such a case, the defendant could qualify for both 
a low-level trafficking functions adjustment under Sec.  2D1.1 and a 
role adjustment under Chapter Three, Part B. The Commission seeks 
comment on how it should address this issue.
    8. Subpart 2 of Part A of the proposed amendment would add 
Commentary to Sec.  2D1.1 that closely tracks certain provisions 
currently contained in Application Note 3 of the Commentary to Sec.  
3B1.2. The proposed Commentary would provide that a low-level 
trafficking functions reduction applies even when the defendant's 
relevant conduct is limited to conduct in which the defendant was 
personally involved. Additionally, the proposed Commentary would state 
that a reduction ordinarily is not warranted when the defendant 
received a lower offense level by virtue of being convicted of a 
significantly less serious offense than warranted by the defendant's 
actual criminal conduct. The Commission seeks comment on whether 
including this guidance in the Commentary to Sec.  2D1.1 is 
appropriate. Is the guidance provided in these provisions applicable in 
the context of the new low-level trafficking functions adjustment at 
Sec.  2D1.1? If appropriate, should the Commission alternatively 
consider incorporating the prohibition and guidance by reference to the 
Commentary to Sec.  3B1.2?
(B) Methamphetamine
    Synopsis of Proposed Amendment: Part B of the proposed amendment 
contains two subparts (Subpart 1 and Subpart 2). The Commission is 
considering whether to promulgate one or both of these subparts, as 
they are not mutually exclusive.
    Subpart 1 addresses offenses involving ``Ice'' under Sec.  2D1.1 
(Unlawful Manufacturing, Importing, Exporting, or Trafficking 
(Including Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy).
    Subpart 2 addresses the purity distinction in Sec.  2D1.1 between

[[Page 8993]]

methamphetamine in ``actual'' form and methamphetamine as part of a 
mixture.
Methamphetamine in General
    The statutory provisions and penalties associated with the 
trafficking of methamphetamine are found at 21 U.S.C. 841 and 960. 
While the statutory penalties for most drug types are based solely on 
drug quantity, the statutory penalties for methamphetamine are also 
based on the purity of the substance involved in the offense. Sections 
841 and 960 contain quantity threshold triggers for five- and ten-year 
mandatory minimums for methamphetamine (actual) (i.e., ``pure'' 
methamphetamine) and methamphetamine (mixture) (i.e., ``a mixture or 
substance containing a detectable amount of methamphetamine''). See 21 
U.S.C. 841(b)(1)(A)(viii), (B)(viii), 960(b)(1)(H), & 960(b)(2)(H). Two 
different 10-to-1 quantity ratios set the mandatory minimum penalties 
for methamphetamine trafficking offenses. First, the quantity of 
substance triggering the ten-year minimum is ten times the quantity 
triggering the five-year minimum. Second, the quantity of 
methamphetamine mixture triggering each mandatory minimum is set at ten 
times the quantity of methamphetamine actual triggering the same 
statutory minimum penalty.
    Under Sec.  2D1.1, the base offense level for offenses involving 
methamphetamine varies based on the purity of the substance. 
Specifically, the Drug Quantity Table at Sec.  2D1.1(c) contains three 
different entries relating to methamphetamine: (1) ``Methamphetamine,'' 
which refers to the entire weight of a mixture or substance containing 
a detectable amount of methamphetamine; (2) ``Methamphetamine 
(actual),'' which refers to the weight of methamphetamine itself 
contained in a mixture or substance; and (3) ``Ice,'' which is defined 
as ``a mixture or substance containing d-methamphetamine hydrochloride 
of at least 80% purity'' (see USSG Sec.  2D1.1(c) (Note C)). The Drug 
Quantity Table sets base offense levels for methamphetamine mixture and 
methamphetamine (actual) in a manner that reflects the 10:1 quantity 
ratio of the applicable statutory provisions, such that it takes ten 
times more methamphetamine mixture than methamphetamine (actual) to 
trigger the same base offense level.
    Although ``Ice'' is included in the guidelines, the term ``Ice'' 
does not appear in the statutory provisions setting penalties for 
methamphetamine offenses. ``Ice'' was added to the guidelines in 
response to the 1990 Crime Control Act, which directed the Commission 
to amend the guidelines ``for offenses involving smokable crystal 
methamphetamine . . . so that convictions for [such offenses] will be 
assigned an offense level . . . two levels above that which would have 
been assigned to the same offense involving other forms of 
methamphetamine.'' See Public Law 101-67, 2701 (1990). The 1990 Crime 
Control Act did not, however, define ``smokable crystal 
methamphetamine,'' and the Commission and commenters struggled to 
determine its meaning. Ultimately, the Commission responded to the Act 
by adding ``Ice'' to the Drug Quantity Table--even though the 1990 
Crime Control Act did not use that term--and developed a definition of 
``Ice'' based on the type and purity of methamphetamine. See USSG App. 
C, amend. 370 (effective Nov. 1, 1991). The Commission set the base 
offense levels for quantities of ``Ice'' equal to the base offense 
levels for the same quantities of methamphetamine (actual).
Commission Data
    Commission data shows that, since fiscal year 2002, the number of 
offenses involving methamphetamine mixture has remained relatively 
steady, but the number of offenses involving methamphetamine (actual) 
and ``Ice'' has risen substantially. Offenses involving methamphetamine 
(actual) increased 299 percent from 910 offenses in fiscal year 2002 to 
3,634 offenses in fiscal year 2022. As a result, in fiscal year 2022, 
methamphetamine (actual) accounted for more than half (52.2%) of all 
methamphetamine cases. Offenses involving ``Ice'' also have risen 
during the past 20 years. In fiscal year 2002, there were 88 offenses 
involving ``Ice'' in the federal case load; that number rose by 881 
percent to 863 offenses in fiscal year 2022. Offenses involving ``Ice'' 
now make up more than ten percent (12.4%) of all methamphetamine cases. 
Offenses involving methamphetamine mixture comprise roughly a third 
(35.4%) of all methamphetamine cases.
    In addition, data published by the Commission in a recent report 
shows that methamphetamine today is highly and uniformly pure, with an 
average purity of 93.2 percent and a median purity of 98.0 percent. The 
methamphetamine tested in fiscal year 2022 was uniformly highly pure 
regardless of whether it was sentenced as methamphetamine mixture 
(91.0% pure on average), methamphetamine actual (92.6%), or ``Ice'' 
(97.6%). See U.S. Sent'g Comm'n, Methamphetamine Trafficking Offenses 
in the Federal Criminal Justice System 4 (June 2024) at https://www.ussc.gov/research/research-reports/methamphetamine-trafficking-offenses-federal-criminal-justice-system.
Feedback From Stakeholders
    The Commission has received significant comment regarding Sec.  
2D1.1's methamphetamine purity distinction. Some commenters suggest 
that the Commission should revisit or eliminate the disparity in Sec.  
2D1.1's treatment of methamphetamine mixture, on the one hand, and 
methamphetamine (actual) and ``Ice,'' on the other. Most of these 
commenters state that purity is no longer an accurate measure of 
offense culpability because methamphetamine today is highly and 
uniformly pure and that ``Ice'' cases do not involve a higher level of 
purity than other forms of methamphetamine. Some of these commenters 
also point to disparities in testing practices across judicial 
districts, which, in turn, have yielded disparate sentences.
Subpart 1 (``Ice'')
    Subpart 1 of Part B of the proposed amendment would amend the Drug 
Quantity Table at Sec.  2D1.1(c) and the Drug Equivalency Tables at 
Application Note 8(D) of the Commentary to Sec.  2D1.1 to delete all 
references to ``Ice.'' In addition, it brackets the possibility of 
adding a new specific offense characteristic at subsection (b)(19) that 
would provide a 2-level reduction if the offense involved 
methamphetamine in a non-smokable, non-crystalline form, which would 
continue to ensure that ``convictions for offenses involving smokable 
crystal methamphetamine will be assigned an offense level under the 
guidelines which is two levels above'' other forms of methamphetamine.
    Issues for comment are also provided.
Subpart 2 (Methamphetamine Purity Distinction)
    Subpart 2 of Part B of the proposed amendment would address the 
10:1 quantity ratio for methamphetamine mixture and methamphetamine 
(actual) by deleting all references to ``methamphetamine (actual)'' 
from the Drug Quantity Table at Sec.  2D1.1(c) and the Drug Conversion 
Tables at Application Note 8(D). The weight of methamphetamine in the 
tables would then be the entire weight of any mixture or substance 
containing a detectable amount of methamphetamine. Subpart 2 of Part B 
of the proposed amendment provides two options for setting the quantity 
thresholds applicable to methamphetamine.

[[Page 8994]]

    Option 1 would set the quantity thresholds for methamphetamine at 
the current level for methamphetamine mixture.
    Option 2 would set the quantity thresholds for methamphetamine at 
the current level of methamphetamine (actual).
    Issues for comment are also provided.
Subpart 1 (``Ice'')
Proposed Amendment
    [Section 2D1.1(b) is amended by inserting at the end the following 
new paragraph (19):
    ``(19) If the offense involved methamphetamine in a non-smokable, 
non-crystalline form, decrease by [2] levels.''.]
    Section 2D1.1(c)(1) is amended in the line referenced to 
Methamphetamine (actual) by striking ``, or'' and inserting a 
semicolon; and by striking the line referenced to ``Ice'' as follows: 
``4.5 KG or more of `Ice';''.
    Section 2D1.1(c)(2) is amended in the line referenced to 
Methamphetamine (actual) by striking ``, or'' and inserting a 
semicolon; and by striking the line referenced to ``Ice'' as follows: 
``at least 1.5 KG but less than 4.5 KG of `Ice';''.
    Section 2D1.1(c)(3) is amended in the line referenced to 
Methamphetamine (actual) by striking ``, or'' and inserting a 
semicolon; and by striking the line referenced to ``Ice'' as follows: 
``at least 500 G but less than 1.5 KG of `Ice';''.
    Section 2D1.1(c)(4) is amended in the line referenced to 
Methamphetamine (actual) by striking ``, or'' and inserting a 
semicolon; and by striking the line referenced to ``Ice'' as follows: 
``at least 150 G but less than 500 G of `Ice';''.
    Section 2D1.1(c)(5) is amended in the line referenced to 
Methamphetamine (actual) by striking ``, or'' and inserting a 
semicolon; and by striking the line referenced to ``Ice'' as follows: 
``at least 50 G but less than 150 G of `Ice';''.
    Section 2D1.1(c)(6) is amended in the line referenced to 
Methamphetamine (actual) by striking ``, or'' and inserting a 
semicolon; and by striking the line referenced to ``Ice'' as follows: 
``at least 35 G but less than 50 G of `Ice';''.
    Section 2D1.1(c)(7) is amended in the line referenced to 
Methamphetamine (actual) by striking ``, or'' and inserting a 
semicolon; and by striking the line referenced to ``Ice'' as follows: 
``at least 20 G but less than 35 G of `Ice';''.
    Section 2D1.1(c)(8) is amended in the line referenced to 
Methamphetamine (actual) by striking ``, or'' and inserting a 
semicolon; and by striking the line referenced to ``Ice'' as follows: 
``at least 5 G but less than 20 G of `Ice';''.
    Section 2D1.1(c)(9) is amended in the line referenced to 
Methamphetamine (actual) by striking ``, or'' and inserting a 
semicolon; and by striking the line referenced to ``Ice'' as follows: 
``at least 4 G but less than 5 G of `Ice';''.
    Section 2D1.1(c)(10) is amended in the line referenced to 
Methamphetamine (actual) by striking ``, or'' and inserting a 
semicolon; and by striking the line referenced to ``Ice'' as follows: 
``at least 3 G but less than 4 G of `Ice';''.
    Section 2D1.1(c)(11) is amended in the line referenced to 
Methamphetamine (actual) by striking ``, or'' and inserting a 
semicolon; and by striking the line referenced to ``Ice'' as follows: 
``at least 2 G but less than 3 G of `Ice';''.
    Section 2D1.1(c)(12) is amended in the line referenced to 
Methamphetamine (actual) by striking ``, or'' and inserting a 
semicolon; and by striking the line referenced to ``Ice'' as follows: 
``at least 1 G but less than 2 G of `Ice';''.
    Section 2D1.1(c)(13) is amended in the line referenced to 
Methamphetamine (actual) by striking ``, or'' and inserting a 
semicolon; and by striking the line referenced to ``Ice'' as follows: 
``at least 500 MG but less than 1 G of `Ice';''.
    Section 2D1.1(c)(14) is amended in the line referenced to 
Methamphetamine (actual) by striking ``, or'' and inserting a 
semicolon; and by striking the line referenced to ``Ice'' as follows: 
``less than 500 MG of `Ice';''.
    The annotation to Sec.  2D1.1(c) captioned ``Notes to Drug Quantity 
Table'' is amended--
    in Note (B) by striking the following:
    ``The terms `Hydrocodone (actual)' and `Oxycodone (actual)' refer 
to the weight of the controlled substance, itself, contained in the 
pill, capsule, or mixture.'';
    by striking Note (C) as follows:
    ``(C) `Ice,' for the purposes of this guideline, means a mixture or 
substance containing d-methamphetamine hydrochloride of at least 80% 
purity.'';
    and by inserting the following new Note (C):
    ``(C) The terms `Hydrocodone (actual)' and `Oxycodone (actual)' 
refer to the weight of the controlled substance, itself, contained in 
the pill, capsule, or mixture.''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 8(D), under the heading relating to Cocaine and Other 
Scheduled I and II Stimulants (and their immediate precursors), by 
striking the line referenced to ``Ice'' as follows:
    ``1 gm of `Ice' = 20 kg''.
    Issues for Comment:
    1. Subpart 1 of Part B of the proposed amendment would amend the 
Drug Quantity Table at subsection (c) of Sec.  2D1.1 (Unlawful 
Manufacturing, Importing, Exporting, or Trafficking (Including 
Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy) and the Drug Conversion Tables at Application Note 8(D) of 
the Commentary to Sec.  2D1.1 to delete all references to ``Ice.'' The 
Commission invites comment on whether deleting all references to 
``Ice'' in Sec.  2D1.1 is consistent with the 1990 congressional 
directive (Pub. L. 101-67, 2701 (1990)) and other provisions of federal 
law.
    2. Subpart 1 of Part B of the proposed amendment brackets the 
possibility of adding a new specific offense characteristic at Sec.  
2D1.1(b)(19) that provides a 2-level reduction if the offense involved 
methamphetamine in a non-smokable, non-crystalline form. The Commission 
invites comment on whether deleting all references to ``Ice,'' while 
adding a new specific offense characteristic addressing methamphetamine 
in a non-smokable, non-crystalline form, is consistent with the 1990 
congressional directive (Pub. L. 101-67, 2701 (1990)) and other 
provisions of federal law.
    In addition, the Commission invites general comment on 
methamphetamine in a non-smokable, non-crystalline form, particularly 
on its pharmacological effects, potential for addiction and abuse, the 
patterns of abuse and harms associated with their abuse, and the 
patterns of trafficking and harms associated with its trafficking. How 
is non-smokable, non-crystalline methamphetamine manufactured, 
distributed, possessed, and used? What are the characteristics of the 
individuals involved in these various criminal activities? What harms 
are posed by these activities? How do these harms differ from those 
associated with other forms of methamphetamine?
Subpart 2 (Methamphetamine Purity Distinction)
Proposed Amendment
    [Option 1 (Using methamphetamine mixture quantity thresholds):
    Section 2D1.1(c)(1) is amended by striking the line referenced to 
Methamphetamine (actual) as follows: ``4.5 KG or more of 
Methamphetamine (actual), or''.
    Section 2D1.1(c)(2) is amended by striking the line referenced to 
Methamphetamine (actual) as follows: ``at least 1.5 KG but less than 
4.5 KG of Methamphetamine (actual), or''.
    Section 2D1.1(c)(3) is amended by striking the line referenced to 
Methamphetamine (actual) as follows: ``at least 500 G but less than 1.5 
KG of Methamphetamine (actual), or''.

[[Page 8995]]

    Section 2D1.1(c)(4) is amended by striking the line referenced to 
Methamphetamine (actual) as follows: ``at least 150 G but less than 500 
G of Methamphetamine (actual), or''.
    Section 2D1.1(c)(5) is amended by striking the line referenced to 
Methamphetamine (actual) as follows: ``at least 50 G but less than 150 
G of Methamphetamine (actual), or''.
    Section 2D1.1(c)(6) is amended by striking the line referenced to 
Methamphetamine (actual) as follows: ``at least 35 G but less than 50 G 
of Methamphetamine (actual), or''.
    Section 2D1.1(c)(7) is amended by striking the line referenced to 
Methamphetamine (actual) as follows: ``at least 20 G but less than 35 G 
of Methamphetamine (actual), or''.
    Section 2D1.1(c)(8) is amended by striking the line referenced to 
Methamphetamine (actual) as follows: ``at least 5 G but less than 20 G 
of Methamphetamine (actual), or''.
    Section 2D1.1(c)(9) is amended by striking the line referenced to 
Methamphetamine (actual) as follows: ``at least 4 G but less than 5 G 
of Methamphetamine (actual), or''.
    Section 2D1.1(c)(10) is amended by striking the line referenced to 
Methamphetamine (actual) as follows: ``at least 3 G but less than 4 G 
of Methamphetamine (actual), or''.
    Section 2D1.1(c)(11) is amended by striking the line referenced to 
Methamphetamine (actual) as follows: ``at least 2 G but less than 3 G 
of Methamphetamine (actual), or''.
    Section 2D1.1(c)(12) is amended by striking the line referenced to 
Methamphetamine (actual) as follows: ``at least 1 G but less than 2 G 
of Methamphetamine (actual), or''.
    Section 2D1.1(c)(13) is amended by striking the line referenced to 
Methamphetamine (actual) as follows: ``at least 500 MG but less than 1 
G of Methamphetamine (actual), or''.
    Section 2D1.1(c)(14) is amended by striking the line referenced to 
Methamphetamine (actual) as follows: ``less than 500 MG of 
Methamphetamine (actual), or''.
    The annotation to Sec.  2D1.1(c) captioned ``Notes to Drug Quantity 
Table'' is amended in Note (B) by striking the following:
    ``The terms `PCP (actual)', `Amphetamine (actual)', and 
`Methamphetamine (actual)' refer to the weight of the controlled 
substance, itself, contained in the mixture or substance. For example, 
a mixture weighing 10 grams containing PCP at 50% purity contains 5 
grams of PCP (actual). In the case of a mixture or substance containing 
PCP, amphetamine, or methamphetamine, use the offense level determined 
by the entire weight of the mixture or substance, or the offense level 
determined by the weight of the PCP (actual), amphetamine (actual), or 
methamphetamine (actual), whichever is greater.'',
    and inserting the following:
    ``The terms `PCP (actual)' and `Amphetamine (actual)' refer to the 
weight of the controlled substance, itself, contained in the mixture or 
substance. For example, a mixture weighing 10 grams containing PCP at 
50% purity contains 5 grams of PCP (actual). In the case of a mixture 
or substance containing PCP or amphetamine, use the offense level 
determined by the entire weight of the mixture or substance, or the 
offense level determined by the weight of the PCP (actual) or 
amphetamine (actual), whichever is greater.''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended--
    in Note 8(D), under the heading relating to Cocaine and Other 
Scheduled I and II Stimulants (and their immediate precursors), by 
striking the line referenced to Methamphetamine (actual) as follows:
    ``1 gm of Methamphetamine (actual) = 20 kg'';
    and in Note 27(C) by striking ``methamphetamine,''.]
    [Option 2 (Using methamphetamine (actual) quantity thresholds):
    Section 2D1.1(c)(1) is amended in the line referenced to 
Methamphetamine by striking ``45 KG'' and inserting ``4.5 KG''; and by 
striking the line referenced to Methamphetamine (actual) as follows: 
``4.5 KG or more of Methamphetamine (actual), or''.
    Section 2D1.1(c)(2) is amended in the line referenced to 
Methamphetamine by striking ``15 KG but less than 45 KG'' and inserting 
``1.5 KG but less than 4.5 KG''; and by striking the line referenced to 
Methamphetamine (actual) as follows: ``at least 1.5 KG but less than 
4.5 KG of Methamphetamine (actual), or''.
    Section 2D1.1(c)(3) is amended in the line referenced to 
Methamphetamine by striking ``5 KG but less than 15 KG'' and inserting 
``500 G but less than 1.5 KG''; and by striking the line referenced to 
Methamphetamine (actual) as follows: ``at least 500 G but less than 1.5 
KG of Methamphetamine (actual), or''.
    Section 2D1.1(c)(4) is amended in the line referenced to 
Methamphetamine by striking ``1.5 KG but less than 5 KG'' and inserting 
``150 G but less than 500 G''; and by striking the line referenced to 
Methamphetamine (actual) as follows: ``at least 150 G but less than 500 
G of Methamphetamine (actual), or''.
    Section 2D1.1(c)(5) is amended in the line referenced to 
Methamphetamine by striking ``500 G but less than 1.5 KG'' and 
inserting ``50 G but less than 150 G''; and by striking the line 
referenced to Methamphetamine (actual) as follows: ``at least 50 G but 
less than 150 G of Methamphetamine (actual), or''.
    Section 2D1.1(c)(6) is amended in the line referenced to 
Methamphetamine by striking ``350 G but less than 500 G'' and inserting 
``35 G but less than 50 G''; and by striking the line referenced to 
Methamphetamine (actual) as follows: ``at least 35 G but less than 50 G 
of Methamphetamine (actual), or''.
    Section 2D1.1(c)(7) is amended in the line referenced to 
Methamphetamine by striking ``200 G but less than 350 G'' and inserting 
``20 G but less than 35 G''; and by striking the line referenced to 
Methamphetamine (actual) as follows: ``at least 20 G but less than 35 G 
of Methamphetamine (actual), or''.
    Section 2D1.1(c)(8) is amended in the line referenced to 
Methamphetamine by striking ``50 G but less than 200 G'' and inserting 
``5 G but less than 20 G''; and by striking the line referenced to 
Methamphetamine (actual) as follows: ``at least 5 G but less than 20 G 
of Methamphetamine (actual), or''.
    Section 2D1.1(c)(9) is amended in the line referenced to 
Methamphetamine by striking ``40 G but less than 50 G'' and inserting 
``4 G but less than 5 G''; and by striking the line referenced to 
Methamphetamine (actual) as follows: ``at least 4 G but less than 5 G 
of Methamphetamine (actual), or''.
    Section 2D1.1(c)(10) is amended in the line referenced to 
Methamphetamine by striking ``30 G but less than 40 G'' and inserting 
``3 G but less than 4 G''; and by striking the line referenced to 
Methamphetamine (actual) as follows: ``at least 3 G but less than 4 G 
of Methamphetamine (actual), or''.
    Section 2D1.1(c)(11) is amended in the line referenced to 
Methamphetamine by striking ``20 G but less than 30 G'' and inserting 
``2 G but less than 3 G''; and by striking the line referenced to 
Methamphetamine (actual) as follows: ``at least 2 G but less than 3 G 
of Methamphetamine (actual), or''.
    Section 2D1.1(c)(12) is amended in the line referenced to 
Methamphetamine by striking ``10 G but less than 20 G'' and inserting 
``1 G but less than 2 G''; and by striking the line referenced to 
Methamphetamine (actual) as follows: ``at least 1 G but less than 2 G 
of Methamphetamine (actual), or''.
    Section 2D1.1(c)(13) is amended in the line referenced to 
Methamphetamine by striking ``5 G but

[[Page 8996]]

less than 10 G'' and inserting ``500 MG but less than 1 G''; and by 
striking the line referenced to Methamphetamine (actual) as follows: 
``at least 500 MG but less than 1 G of Methamphetamine (actual), or''.
    Section 2D1.1(c)(14) is amended in the line referenced to 
Methamphetamine by striking ``5 G'' and inserting ``500 MG''; and by 
striking the line referenced to Methamphetamine (actual) as follows: 
``less than 500 MG of Methamphetamine (actual), or''.
    The annotation to Sec.  2D1.1(c) captioned ``Notes to Drug Quantity 
Table'' is amended in Note (B) by striking the following:
    ``The terms `PCP (actual)', `Amphetamine (actual)', and 
`Methamphetamine (actual)' refer to the weight of the controlled 
substance, itself, contained in the mixture or substance. For example, 
a mixture weighing 10 grams containing PCP at 50% purity contains 5 
grams of PCP (actual). In the case of a mixture or substance containing 
PCP, amphetamine, or methamphetamine, use the offense level determined 
by the entire weight of the mixture or substance, or the offense level 
determined by the weight of the PCP (actual), amphetamine (actual), or 
methamphetamine (actual), whichever is greater.'',
    and inserting the following:
    ``The terms `PCP (actual)' and `Amphetamine (actual)' refer to the 
weight of the controlled substance, itself, contained in the mixture or 
substance. For example, a mixture weighing 10 grams containing PCP at 
50% purity contains 5 grams of PCP (actual). In the case of a mixture 
or substance containing PCP or amphetamine, use the offense level 
determined by the entire weight of the mixture or substance, or the 
offense level determined by the weight of the PCP (actual) or 
amphetamine (actual), whichever is greater.''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended--
    in Note 8(D), under the heading relating to Cocaine and Other 
Scheduled I and II Stimulants (and their immediate precursors)--
    in the line referenced to Methamphetamine by striking ``2 kg'' and 
inserting ``20 kg'';
    and by striking the line referenced to Methamphetamine (actual) as 
follows:
    ``1 gm of Methamphetamine (actual) = 20 kg'';
    and in Note 27(C) by striking ``methamphetamine,''.]
    Issues for Comment:
    1. The Commission seeks comment on how, if at all, the guidelines 
should be amended to address the 10:1 quantity ratio between 
methamphetamine mixture and methamphetamine (actual). Should the 
Commission adopt either of the above options or neither? Should the 
Commission equalize the treatment of methamphetamine mixture and 
methamphetamine (actual) but at some level other than the current 
quantity thresholds for methamphetamine mixture or methamphetamine 
(actual)? Should the Commission retain references to both 
methamphetamine mixture and methamphetamine (actual) and set a quantity 
ratio between these substances but at some level other than the current 
10:1 ratio? If so, what ratio should the Commission establish, and what 
is the basis for such ratio?
    2. Option 2 in Subpart 2 of Part B of the proposed amendment would 
amend Sec.  2D1.1 (Unlawful Manufacturing, Importing, Exporting, or 
Trafficking (Including Possession with Intent to Commit These 
Offenses); Attempt or Conspiracy) to establish a 1:1 quantity ratio for 
methamphetamine (actual) and methamphetamine mixture by setting the 
quantity thresholds for all methamphetamine at the level of 
methamphetamine (actual). However, this change may result in an 
increased offense level for some cases involving methamphetamine 
(actual). For example, under the current Sec.  2D1.1, 5 grams of a 
mixture or substance containing 80 percent methamphetamine is treated 
as 4 grams of methamphetamine (actual), which triggers a base offense 
level of 22. By contrast, under Option 2, 5 grams of a mixture or 
substance containing 80 percent methamphetamine would be treated as 5 
grams of methamphetamine, which would trigger a base offense level of 
24. Is this an appropriate outcome? Why or why not? If not, how should 
the Commission revise Sec.  2D1.1 to avoid this outcome?
    3. Section 2D1.11 (Unlawfully Distributing, Importing, Exporting or 
Possessing a Listed Chemical; Attempt or Conspiracy) includes a 
chemical quantity table specifically for ephedrine, pseudoephedrine, 
and phenylpropanolamine at subsection (d). The table ties the base 
offense levels for these chemicals to the base offense levels for 
methamphetamine (actual) set forth in Sec.  2D1.1, assuming a 50 
percent actual yield of the controlled substance from the chemicals.
    As provided above, Option 1 in Subpart 2 of Part B of the proposed 
amendment would amend the Drug Quantity Table at Sec.  2D1.1(c) and the 
Drug Equivalency Tables at Application Note 8(D) of the Commentary to 
Sec.  2D1.1 to set the quantity thresholds for methamphetamine (actual) 
at the same level as methamphetamine mixture. If the Commission were to 
promulgate Option 1, should the Commission amend the table at Sec.  
2D1.11(d) and make conforming changes to the quantity thresholds? 
Should the Commission revise the quantity thresholds in Sec.  2D1.11(d) 
in a different way? If so, what quantity thresholds should the 
Commission set and on what basis?
    4. Subpart 2 of Part B of the proposed amendment addresses the 
quantity ratio between methamphetamine mixture and methamphetamine 
(actual) in Sec.  2D1.1. In addition to comment on the methamphetamine 
purity distinction, the Commission has received comment suggesting that 
the Commission should reconsider the different treatment between 
cocaine (i.e., ``powder cocaine'') and cocaine base (i.e., ``crack 
cocaine'') in the Drug Quantity Table at Sec.  2D1.1(c). Section 2D1.1 
provides base offense levels for offenses involving powder cocaine and 
crack cocaine that reflect an 18:1 quantity ratio, which tracks the 
statutory penalty structure for those substances. See 21 U.S.C. 
841(b)(1)(A) & (B); 960(b)(1) & (2). The Commission has examined this 
issue for many years and seeks comment on whether to take action in a 
future amendment cycle. If so, what action should the Commission take?
    (C) Misrepresentation of Fentanyl and Fentanyl Analogues
    Synopsis of Proposed Amendment: In 2018, the Commission amended 
Sec.  2D1.1 (Unlawful Manufacturing, Importing, Exporting, or 
Trafficking (Including Possession with Intent to Commit These 
Offenses); Attempt or Conspiracy) to add a new specific offense 
characteristic at subsection (b)(13) providing a 4-level increase 
whenever the defendant knowingly misrepresented or knowingly marketed 
as another substance a mixture or substance containing fentanyl or a 
fentanyl analogue. See USSG, App. C. amend. 807 (effective Nov. 1, 
2018). To address the increase in cases involving the distribution of 
fentanyl and fentanyl analogues and the seizure of fake prescription 
pills containing fentanyl, the Commission revised Sec.  2D1.1(b)(13) in 
2023 to add a new subparagraph (B) with an alternative 2-level 
enhancement for offenses where the defendant represented or marketed as 
a legitimately manufactured drug another mixture or substance 
containing fentanyl or a fentanyl analogue, and acted with willful 
blindness or conscious avoidance of knowledge that such mixture or 
substance was not the

[[Page 8997]]

legitimately manufactured drug. See USSG, App. C. amend. 818 (effective 
Nov. 1, 2023). In doing so, the Commission cited data showing that, of 
the fake pills seized containing fentanyl, most contained a potentially 
lethal dose of the substance. Id.
    The Commission has received some comment urging the Commission to 
revise Sec.  2D1.1(b)(13) because courts rarely apply this enhancement. 
According to those commenters, the enhancement is vague and has led to 
disagreement on when it should be applied. Some commenters suggested 
that the Commission lower the mens rea requirement in Sec.  
2D1.1(b)(13) to solve the application issues with the enhancement and 
to address the dangerous nature of substances containing fentanyl or a 
fentanyl analogue.
    Part C of the proposed amendment would revise the enhancement at 
Sec.  2D1.1(b)(13) to address these concerns. Three options are 
provided.
    Option 1 would set forth an offense-based enhancement with no mens 
rea requirement at Sec.  2D1.1(b)(13). The revised enhancement would 
provide a [2][4]-level enhancement if the offense involved representing 
or marketing a mixture or substance containing fentanyl (N-phenyl-N-[1-
(2-phenylethyl)-4-piperidinyl] propanamide) or a fentanyl analogue as 
any other substance.
    Option 2 would set forth a defendant-based enhancement with a mens 
rea requirement at Sec.  2D1.1(b)(13). The revised enhancement would 
provide for a [2][4]-level enhancement if the defendant represented or 
marketed a mixture or substance containing fentanyl (N-phenyl-N-[1-(2-
phenylethyl)-4-piperidinyl] propanamide) or a fentanyl analogue as any 
other substance, with two bracketed alternatives for the mens rea 
requirement. The first bracketed alternative would require that the 
defendant had knowledge or reason to believe that the mixture or 
substance contained fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] propanamide) or a fentanyl analogue. The second bracketed 
alternative would require that the defendant acted with knowledge of or 
reckless disregard as to the actual content of the mixture or 
substance.
    Option 3 would set forth a tiered alternative enhancement at Sec.  
2D1.1(b)(13). Subparagraph (A) would provide for a [4]-level increase 
if the defendant represented or marketed a mixture or substance 
containing fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] 
propanamide) or a fentanyl analogue as any other substance, with two 
bracketed alternatives for the mens rea requirement. The first 
bracketed alternative would require that the defendant had knowledge or 
reason to believe that the mixture or substance contained fentanyl (N-
phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide) or a fentanyl 
analogue. The second bracketed alternative would require that the 
defendant acted with knowledge of or reckless disregard as to the 
actual content of the mixture or substance. Subparagraph (B) would 
provide for a [2]-level increase if the offense otherwise involved 
representing or marketing a mixture or substance containing fentanyl 
(N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide) or a 
fentanyl analogue as any other substance. Subparagraph (B) would not 
contain a mens rea requirement.
    Issues for comment are also provided.
Proposed Amendment
    Section 2D1.1(b)(13) is amended by striking the following:
    ``If the defendant (A) knowingly misrepresented or knowingly 
marketed as another substance a mixture or substance containing 
fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide) or 
a fentanyl analogue, increase by 4 levels; or (B) represented or 
marketed as a legitimately manufactured drug another mixture or 
substance containing fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] propanamide) or a fentanyl analogue, and acted with 
willful blindness or conscious avoidance of knowledge that such mixture 
or substance was not the legitimately manufactured drug, increase by 2 
levels. The term `drug,' as used in subsection (b)(13)(B), has the 
meaning given that term in 21 U.S.C. 321(g)(1).'';
    and inserting the following:
    [Option 1 (Offense-based enhancement with no mens rea requirement):
    ``If the offense involved representing or marketing a mixture or 
substance containing fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] propanamide) or a fentanyl analogue as any other 
substance, increase by [2][4] levels.''.]
    [Option 2 (Defendant-based enhancement with mens rea requirement):
    ``If the defendant represented or marketed a mixture or substance 
containing fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] 
propanamide) or a fentanyl analogue as any other substance, [with 
knowledge or reason to believe that it contained fentanyl (N-phenyl-N-
[1-(2-phenylethyl)-4-piperidinyl] propanamide) or a fentanyl 
analogue][with knowledge of or reckless disregard as to the actual 
content of the mixture or substance], increase by [2][4] levels.''.]
    [Option 3 (Tiered alternative provision with a defendant-based 
enhancement with mens rea requirement and an offense-based enhancement 
with no mens rea requirement):
    ``If (A) the defendant represented or marketed a mixture or 
substance containing fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] propanamide) or a fentanyl analogue as any other 
substance, [with knowledge or reason to believe that it contained 
fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide) or 
a fentanyl analogue][with knowledge of or reckless disregard as to the 
actual content of the mixture or substance], increase by [4] levels; or 
(B) the offense otherwise involved representing or marketing a mixture 
or substance containing fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-
piperidinyl] propanamide) or a fentanyl analogue as any other 
substance, increase by [2] levels.''.]
    Issues for Comment:
    1. Part C of the proposed amendment would amend subsection (b)(13) 
of Sec.  2D1.1 (Unlawful Manufacturing, Importing, Exporting, or 
Trafficking (Including Possession with Intent to Commit These 
Offenses); Attempt or Conspiracy) to address some concerns relating to 
application issues with the enhancement. The Commission seeks comment 
on whether any of the three options set forth above is appropriate to 
address the concerns raised by commenters. If not, is there an 
alternative approach that the Commission should consider? Should the 
Commission provide a different mens rea requirement for Sec.  
2D1.1(b)(13)? If so, what mens rea requirement should the Commission 
provide?
    2. The Commission enacted Sec.  2D1.1(b)(13) to address cases where 
individuals purchasing a mixture or substance containing fentanyl or a 
fentanyl analogue may believe they are purchasing a different 
substance. The Commission invites general comment on whether the 
proposed revisions to Sec.  2D1.1(b)(13) are appropriate to address 
this harm and the culpability of the defendants in these cases. Is the 
use of terms such as ``representing'' and

[[Page 8998]]

``marketing'' sufficient to achieve this purpose? If not, should the 
Commission use different terminology to appropriately reflect the 
criminal conduct in these cases? What terms should the Commission use? 
Should the Commission consider any other changes to Sec.  2D1.1(b)(13) 
to address the harm in these cases?
    (D) Machineguns
    Synopsis of Proposed Amendment: Subsection (b)(1) of Sec.  2D1.1 
(Unlawful Manufacturing, Importing, Exporting, or Trafficking 
(Including Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy) provides a 2-level enhancement for cases in which a 
``dangerous weapon (including a firearm)'' is possessed. Section 
2D1.1(b)(1) does not distinguish between different types of dangerous 
weapons involved in the offense, which is different from some statutory 
enhancements. For example, greater statutory penalties are imposed for 
possession of a machinegun in furtherance of a drug trafficking crime 
than possession of other firearms. See 18 U.S.C. 924(c).
    The Department of Justice has expressed concern that Sec.  
2D1.1(b)(1) fails to differentiate between machineguns and other 
weapons. The Department of Justice and other commenters have also noted 
the increased prevalence of machinegun conversion devices (``MCDs'') 
(i.e., devices designed to convert weapons into fully automatic 
firearms), pointing out that weapons equipped with MCDs pose an 
increased danger because they can fire more quickly and are more 
difficult to control.
    Part D of the proposed amendment would amend the enhancement at 
Sec.  2D1.1(b)(1) for cases involving the possession of a weapon. It 
would create a tiered enhancement based on whether the weapon possessed 
was a machinegun (as defined in 26 U.S.C. 5845(b)) or some other 
dangerous weapon. Courts would be instructed to apply the greater of 
either a 4-level enhancement if a machinegun was possessed or a 2-level 
enhancement if a dangerous weapon was possessed.
    An issue for comment is also provided.
Proposed Amendment
    Section 2D1.1(b)(1) is amended by striking the following:
    ``If a dangerous weapon (including a firearm) was possessed, 
increase by 2 levels.'';
    and inserting the following:
    ``(Apply the greater):
    (A) If a machinegun (as defined in 26 U.S.C. 5845(b)) was 
possessed, increase by [4] levels;
    (B) If a dangerous weapon (including a firearm) was possessed, 
increase by 2 levels.''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 11(B) by striking ``dangerous weapon'' and inserting 
``weapon''.
    Issue for Comment:
    1. Subsection (b)(1) of Sec.  2D1.1 (Unlawful Manufacturing, 
Importing, Exporting, or Trafficking (Including Possession with Intent 
to Commit These Offenses); Attempt or Conspiracy) applies if ``a 
dangerous weapon . . . was possessed'' as part of the offense and does 
not require that the defendant possessed the weapon. In addition, the 
Commentary to Sec.  2D1.1 provides that the enhancement ``should be 
applied if the weapon was present, unless it is clearly improbable that 
the weapon was connected with the offense.'' See USSG Sec.  2D1.1, 
comment. (n.11(A)). Therefore, Sec.  2D1.1(b)(1) may apply more broadly 
than other weapons-related provisions elsewhere in the guidelines. The 
Commission seeks comment on whether the changes set forth in Part D of 
the proposed amendment are appropriate in light of these factors. 
Should the Commission consider additional changes to Sec.  2D1.1(b)(1) 
to address these considerations? What changes, if any, should the 
Commission consider?
    (E) Safety Valve
    Synopsis of Proposed Amendment: Section 3553(f) of title 18, United 
States Code, allows a court to impose a sentence without regard to any 
statutory minimum penalty if it finds that a defendant meets certain 
criteria. The safety valve applies only to offenses under 21 U.S.C. 
841, Sec.  844, Sec.  846, Sec.  960, or Sec.  963, or 46 U.S.C. 70503 
or Sec.  70506, and to defendants who, among other things, ``truthfully 
provided to the Government all information and evidence the defendant 
has concerning the offense or offenses that were part of the same 
course of conduct or of a common scheme or plan.'' See 18 U.S.C. 
3553(f). When it first enacted the safety valve, Congress directed the 
Commission to promulgate or amend guidelines and policy statements to 
``carry out the purposes of [section 3553(f)].'' See Violent Crime 
Control and Law Enforcement Act of 1994, Pub. L. 103-322, 80001(b). The 
Commission implemented the directive by incorporating the statutory 
text of section 3553(f) into the guidelines at Sec.  5C1.2 (Limitation 
on Applicability of Statutory Minimum Sentences in Certain Cases).
    Section 5C1.2(a)(5) does not prescribe any particular manner by 
which a defendant must satisfy the requirement of providing truthful 
information and evidence to the Government. The Commission has heard 
concerns, however, that this requirement has been understood to require 
that the defendant meet directly with the Government. Due to safety 
concerns, defendants otherwise eligible for the safety valve may forego 
that benefit due to the requirement of an in-person meeting.
    Part E of the proposed amendment would address these concerns by 
amending the Commentary to Sec.  5C1.2 to add a provision stating that 
subsection (a)(5) does not specify how the defendant should provide 
such information and evidence to the Government. It would also provide 
that the specific manner by which the defendant has disclosed the 
information--whether by written disclosure or in-person meeting--should 
not preclude a determination by the court that the defendant has 
complied with the requirement of disclosing information about the 
offense, provided that the disclosure satisfies the requirements of 
completeness and truthfulness. It would state that the fact that the 
defendant provided the information as a written disclosure shall not by 
itself render the disclosure--if otherwise found complete and 
truthful--insufficient.
    An issue for comment is also provided.
Proposed Amendment
    The Commentary to Sec.  5C1.2 captioned ``Application Notes'' is 
amended in Note 4 by striking the following:
    ``Use of Information Disclosed under Subsection (a).--Information 
disclosed by a defendant under subsection (a) may not be used to 
enhance the sentence of the defendant unless the information relates to 
a violent offense, as defined in Application Note 1(A).'';
    and inserting the following:
    ``Application of Subsection (a)(5).--
    (A) Disclosure of Information by the Defendant.--Under subsection 
(a)(5), the defendant is required, not later than the time of the 
sentencing hearing, to truthfully provide to the Government all 
information and evidence the defendant has concerning the offense or 
offenses that were part of the same course of conduct or of a common 
scheme or plan. Subsection (a)(5) does not specify how the defendant 
should provide such information and evidence to the Government. The 
specific manner by which the defendant has disclosed the information--
whether by written disclosure or in-person meeting--

[[Page 8999]]

should not preclude a determination by the court that the defendant has 
complied with this requirement, provided that the disclosure satisfies 
the requirements of completeness and truthfulness. The fact that the 
defendant provided the information as a written disclosure shall not by 
itself render the disclosure--if otherwise found complete and 
truthful--insufficient.
    (B) Use of Information Disclosed.--Information disclosed by a 
defendant under subsection (a) may not be used to enhance the sentence 
of the defendant unless the information relates to a violent offense, 
as defined in Application Note 1(A).''.
    Issue for Comment:
    1. The Commission seeks comment on whether the changes set forth in 
Part E of the proposed amendment are appropriate to address the 
concerns raised by commenters. If not, is there an alternative approach 
that the Commission should consider?

[FR Doc. 2025-02129 Filed 2-3-25; 8:45 am]
BILLING CODE 2210-40-P`