8968 Federal Register / Vol. 90, No. 22 / Tuesday, February 4, 2025 / Notices 

UNITED STATES SENTENCING 

COMMISSION 

Sentencing Guidelines for United 

States Courts 

AGENCY: United States Sentencing 

Commission. 

ACTION: Notice and request for public 

comment and hearing. 

SUMMARY: The United States Sentencing 

Commission is considering 

promulgating amendments to the 

sentencing guidelines, policy 

statements, and commentary. This 

notice sets forth the proposed 

amendments and, for each proposed 

amendment, a synopsis of the issues 

addressed by that proposed amendment. 

This notice also sets forth several issues 

for comment, some of which are set 

forth together with the proposed 

amendments, and one of which 

(regarding retroactive application of 

proposed amendments) is set forth in 

the SUPPLEMENTARY INFORMATION section 

of this notice. 

DATES: 

Written Public Comment. Written 

public comment regarding the proposed 

amendments and issues for comment set 

forth in this notice, including public 

comment regarding retroactive 

application of any of the proposed 

amendments, should be received by the 

Commission not later than 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 § 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 § 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 

§ 2D1.1 to address offenses involving 

‘‘Ice,’’ and related issues for comment; 

and (ii) two options for amending 

§ 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 § 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 § 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 § 5C1.2 (Limitation on 

Applicability of Statutory Minimum 

Sentences in Certain Cases) to address 

the manner by which a defendant may 

satisfy § 5C1.2(a)(5)’s requirement of 

providing truthful information and 


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Federal Register / Vol. 90, No. 22 / Tuesday, February 4, 2025 / Notices 8969 

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 § 1B1.10 

(Reduction in Term of Imprisonment as 

a Result of Amended Guideline Range 

(Policy Statement)) as an amendment 

that may be applied retroactively to 

previously sentenced defendants. The 

Commission lists in § 1B1.10(d) the 

specific guideline amendments that the 

court may apply retroactively under 18 

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

Commentary to § 1B1.10 lists the 

purpose of the amendment, the 

magnitude of the change in the 

guideline range made by the 

amendment, and the difficulty of 

applying the amendment retroactively 

to determine an amended guideline 

range under § 1B1.10(b) as among the 

factors the Commission considers in 

selecting the amendments included in 

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

public comment should address each of 

these factors. 

The text of the proposed amendments 

and related issues for comment are set 

forth below. Additional information 

pertaining to the proposed amendments 

and issues for comment described in 

this notice may be accessed through the 

Commission’s website at www.ussc.gov. 

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

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

the proposed amendments are available 

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

amendments/proposed-2025- 

amendments-federal-sentencingguidelines-published-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 § 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, § 5D1.1(b) 

treats the decision to impose a term of 

supervised release as discretionary. The 

commentary to § 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 § 5D1.1 comment. (n.3). 

Section 5D1.1(c) provides an 

exception to the rule in § 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, § 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, § 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, § 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 § 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 § 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 § 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 § 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 § 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 

§ 1B1.10 (Reduction in Term of 

Imprisonment as a Result of Amended 

Guideline Range (Policy Statement)), the 

Commentary to § 4B1.5 (Repeat and 

Dangerous Sex Offenders Against 

Minors), § 5B1.3 (Conditions of 

Probation), § 5H1.3 (Mental and 

Emotional Conditions (Policy 

Statement)), and § 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 


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


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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 § 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); § 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 § 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); 

§ 5D1.4 (Modification, Early 

Termination, and Extension of 

Supervised Release (Policy 

Statement)).’’. 

The Commentary to § 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 


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release that is to be imposed. Subsection 

(c) applies to statutes, such as the AntiDrug 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 


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(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 § 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 § 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 § 5F1.2 (Home Detention). 

(3) Community Service 

Community service may be imposed 

as a condition of supervised release. See 

§ 5F1.3 (Community Service). 

(4) Occupational Restrictions 

Occupational restrictions may be 

imposed as a condition of supervised 

release. See § 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 § 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 


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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 § 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 § 5F1.2 (Home Detention). 

(L) Community Service 

Community service may be imposed 

as a condition of supervised release. See 

§ 5F1.3 (Community Service). 

(M) Occupational Restrictions 

Occupational restrictions may be 

imposed as a condition of supervised 

release. See § 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 § 5F1.8 

(Intermittent Confinement).’’. 

The Commentary to § 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 


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8976 Federal Register / Vol. 90, No. 22 / Tuesday, February 4, 2025 / Notices 

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 

§ 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 

§ 5D1.4: 

‘‘§ 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 

§ 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 § 1B1.10 

captioned ‘‘Application Notes’’ is 

amended in Note 8(B) by inserting after 

‘‘18 U.S.C. 3583(e)(1).’’ the following: 

‘‘See § 5D1.4 (Modification, Early 

Termination, and Extension of 

Supervised Release (Policy 

Statement)).’’. 

[The Commentary to § 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 § 4B1.5 

captioned ‘‘Application Notes’’ is 

amended in Note 5— 

by striking the following: 

‘‘Treatment and Monitoring.— 


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(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 § 5D1.2 

(Term of Supervised Release)’’. 

The Commentary to § 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 ‘‘§ 5D1.3(d)(4)’’ 

and inserting ‘‘§ 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 

§ 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 § 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 § 5D1.1(c) to further 

discourage the imposition of supervised 

release for individuals who are likely to 

be deported? 

3. In § 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 PostConviction Supervision Policies in the 

Guide to Judiciary Policy (Vol. 8E, Ch. 

3, § 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 § 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 


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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 § 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/problemsolving-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 § 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 

§ 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 § 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 § 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 § 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, § 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) nonreporting will not present an undue risk 

to the individual or the public or be 

inconsistent with any directive of the 

court. USSG § 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 

§ 7B1.3(a). When a court does revoke 

supervised release, § 7B1.3(b) directs 

that the applicable range of 

imprisonment is the one set forth in 

§ 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 § 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 § 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 

§ 7B1.4(a)(2). Trumping mechanisms 

apply if the terms of imprisonment 

required by statute exceed or fall below 

the suggested range. USSG § 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 


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of supervised release on a foreign 

sentence under the provisions of 18 

U.S.C. 4106A. USSG § 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 § 7C1.1 (Classification of Violations 

(Policy Statement)), which duplicates 

§ 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 § 7B1.2, which 

addresses a probation officer’s duty to 

report violations, in the new § 7C1.2. 

Part B of the proposed amendment 

would create a new § 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 noncompliance, 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 nonexhaustive 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 

§ 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, § 7C1.6 (No Credit for Time 

Under Supervision (Policy Statement)) 

would duplicate § 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 


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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 noncompliance 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 courtordered 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 § 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 

§ 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 § 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. 


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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 §§ 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 §§ 5D1.1–1.3 shall apply 

to the imposition of a term of supervised 

release.’’. 

The Commentary to § 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 § 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 § 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 § 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 


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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 § 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. 

§ 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 

§ 4B1.2 (Definitions of Terms Used in 

Section 4B1.1). See § 4B1.2(a) and 

Application Note 1 of the Commentary 

to § 4B1.2. 

3. ‘Controlled substance offense’ is 

defined in § 4B1.2 (Definitions of Terms 

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

and Application Note 1 of the 

Commentary to § 4B1.2. 

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). 

§ 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 nonreporting 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. 

§ 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 


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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 § 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.] 

§ 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 § 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 § 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 § 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 § 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. 

§ 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 


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SUPERVISED RELEASE REVOCATION TABLE—Continued 

[In months of imprisonment] 

Criminal history category * 

Grade of violation I II III IV V VI 

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 §§ 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 § 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). 

§ 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 § 7C1.3 

(Responses to Violations of Supervised 

Release (Policy Statement)) includes in 

the Commentary examples of how a 

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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 § 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 § 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 § 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 § 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 

§ 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 § 7B1.4 (Term of 

Imprisonment—Probation) and § 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 

§ 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 § 7B1.4 (Term of 

Imprisonment—Probation) and § 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 § 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 § 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 

§ 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 § 2D1.1 to address offenses 

involving ‘‘Ice.’’ Subpart 2 sets forth two 

options for amending § 2D1.1 to address 

the purity distinction in § 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 § 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 

§ 2D1.1(b)(1) to machineguns. An issue 

for comment is also provided. 

Part E of the proposed amendment 

would amend the Commentary to 

§ 5C1.2 (Limitation on Applicability of 

Statutory Minimum Sentences in 

Certain Cases) to address the manner by 


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which a defendant may satisfy 

§ 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 § 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 § 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 § 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 § 2D1.1(a)(1)–(a)(4), apply when 

the defendant was convicted of an 

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

§ 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 

§ 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 § 3B1.2 (Mitigating Role). 

The Drug Quantity Table at § 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 § 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 fiveyear statutory minimum for such 

offenses by at least three months). 

Similarly, offenses that triggered a tenyear 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 

§ 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 § 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 § 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 


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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 § 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 § 3B1.2. The third issue for 

comment below provides some 

background information on § 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 lowlevel trafficking functions. It provides 

two options for this new reduction. 

Option 1 would make the reduction 

applicable if § 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 § 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 lowlevel 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 § 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 § 2D1.1 providing 

that § 3B1.2 does not apply to cases 

where the defendant’s offense level is 

determined under § 2D1.1. It would also 

include a new application note in the 

Commentary to § 2D1.1 relating to the 

new low-level trafficking functions 

adjustment. The new application note 

would provide guidance taken from the 

Commentary to § 3B1.2. Options 1 and 

2 would also make conforming changes 

in § 2D1.1 to replace all references to 

§ 3B1.2 with references to the new lowlevel trafficking functions reduction. 

These conforming changes include tying 

the additional decreases and mitigating 

role cap at § 2D1.1(a)(5) to the 

application of the proposed reduction at 

new § 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 

§ 2D1.1(a)(5). See the third issue for 

comment below on possible changes 

that should be made to § 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 (Nphenyl-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); 


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• 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 (Nphenyl-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 § 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 (Nphenyl-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; 


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• 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 (Nphenyl-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 § 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 (Nphenyl-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; 


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• 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 (Nphenyl-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 § 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 § 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 § 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 

§ 2D1.1(a)(5) provides a decrease for 

base offense levels of 32 or greater when 

the mitigating role adjustment at § 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 § 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 § 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 § 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 § 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 § 3B1.2 

(Mitigating Role)’’ and inserting ‘‘a 

reduction under subsection (b)(17)’’, 

and by striking ‘‘the 4-level (‘minimal 

participant’) reduction in § 3B1.2(a)’’ 

and inserting ‘‘a reduction under 

subsection (b)(17)’’. 

Section 2D1.1(b) is amended— 


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in paragraph (5) by striking ‘‘an 

adjustment under § 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 lowlevel 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 lowlevel 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 

§ 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 § 3B1.2 (Mitigating Role).’’. 

The Commentary to § 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 § 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 § 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 § 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 § 3B1.2 captioned 

‘‘Application Notes’’ is amended— 


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in Note 3(A) by striking the following: 

‘‘A defendant who is accountable 

under § 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 § 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 § 1B1.3 for a loss 

amount under § 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 § 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 § 1B1.3 for a loss 

amount under § 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 § 2D1.1 and the 

defendant’s base offense level under 

that guideline was reduced by operation 

of the maximum base offense level in 

§ 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 § 2D1.1.—In 

accordance with subsection (e)(2) of 

§ 2D1.1 (Unlawful Manufacturing, 

Importing, Exporting, or Trafficking 

(Including Possession with Intent to 

Commit These Offenses); Attempt or 

Conspiracy), § 3B1.2 does not apply to 

a defendant whose offense level is 

determined under § 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 

§ 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 § 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 

§ 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 § 3B1.2 

(Mitigating Role). How should the 

Commission amend § 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 

§ 3B1.2(a). How should the Commission 

amend § 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 § 3B1.2 

(Mitigating Role) does not apply to cases 

where the defendant’s offense level is 

determined under § 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 § 2D1.1 but 

the offense level is determined under 

§ 2D1.1. In such a case, the defendant 

could qualify for both a low-level 

trafficking functions adjustment under 

§ 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 

§ 2D1.1 that closely tracks certain 

provisions currently contained in 

Application Note 3 of the Commentary 

to § 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 § 2D1.1 is appropriate. 

Is the guidance provided in these 

provisions applicable in the context of 

the new low-level trafficking functions 

adjustment at § 2D1.1? If appropriate, 

should the Commission alternatively 

consider incorporating the prohibition 

and guidance by reference to the 

Commentary to § 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 § 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 § 2D1.1 between 


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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 fiveyear 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 § 2D1.1, the base offense level 

for offenses involving 

methamphetamine varies based on the 

purity of the substance. Specifically, the 

Drug Quantity Table at § 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 dmethamphetamine hydrochloride of at 

least 80% purity’’ (see USSG § 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/methamphetaminetrafficking-offenses-federal-criminaljustice-system. 

Feedback From Stakeholders 

The Commission has received 

significant comment regarding § 2D1.1’s 

methamphetamine purity distinction. 

Some commenters suggest that the 

Commission should revisit or eliminate 

the disparity in § 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 § 2D1.1(c) and the 

Drug Equivalency Tables at Application 

Note 8(D) of the Commentary to § 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 § 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. 


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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 § 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 § 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 

§ 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 § 2D1.1 to delete all 

references to ‘‘Ice.’’ The Commission 

invites comment on whether deleting all 

references to ‘‘Ice’’ in § 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 § 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’’. 


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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 § 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 § 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 


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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 § 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 § 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 

§ 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 § 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 § 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 § 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 § 2D1.1(c) and the 

Drug Equivalency Tables at Application 

Note 8(D) of the Commentary to § 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 § 2D1.11(d) and make 

conforming changes to the quantity 

thresholds? Should the Commission 

revise the quantity thresholds in 

§ 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 § 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 

§ 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 § 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 § 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 


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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 § 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 § 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 

§ 2D1.1(b)(13) to address these concerns. 

Three options are provided. 

Option 1 would set forth an offensebased enhancement with no mens rea 

requirement at § 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 defendantbased enhancement with a mens rea 

requirement at § 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 

§ 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 (Nphenyl-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 

§ 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 

§ 2D1.1(b)(13)? If so, what mens rea 

requirement should the Commission 

provide? 

2. The Commission enacted 

§ 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 

§ 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 


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‘‘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 § 2D1.1(b)(13) to address the harm in 

these cases? 

(D) Machineguns 

Synopsis of Proposed Amendment: 

Subsection (b)(1) of § 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 § 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 

§ 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 § 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 § 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 § 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 

§ 2D1.1, comment. (n.11(A)). Therefore, 

§ 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 § 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, § 844, § 846, § 960, 

or § 963, or 46 U.S.C. 70503 or § 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 

§ 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 § 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 § 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— 


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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 


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