25074 Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Notices

UNITED STATES SENTENCING

COMMISSION

Amendments to the Sentencing

Guidelines for United States Courts

AGENCY: United States Sentencing

Commission.

ACTION: Notice of submission to

Congress of amendments to the

sentencing guidelines.

SUMMARY: Pursuant to its authority

under section 994(p) of title 28, United

States Code, the United States

Sentencing Commission, on May 1,

1995, submitted to the Congress

amendments to the sentencing

guidelines, policy statements, and

official commentary together with

reasons for the amendments.

DATES: Pursuant to 28 U.S.C. 994(p), the

Commission has specified an effective

date of November 1, 1995, for these

amendments. Comments regarding

amendments that the Commission

should specify for retroactive

application to previously sentenced

defendants should be received no later

than June 16, 1995.

ADDRESSES: Comments should be sent

to: United States Sentencing

Commission, One Columbus Circle,

N.E., Suite 2–500, South Lobby,

Washington, DC 20002–8002, Attn:

Public Information.

FOR FURTHER INFORMATION CONTACT:

Mike Courlander, Public Information

Specialist, telephone: (202) 273–4590.

SUPPLEMENTARY INFORMATION: The

United States Sentencing Commission,

an independent agency in the judicial

branch of the U.S. Government, is

empowered by 28 U.S.C. 994(a) to

promulgate sentencing guidelines and

policy statements for federal sentencing

courts. The statute further directs the

Commission to review periodically and

revise guidelines previously

promulgated and authorizes it to submit

guideline amendments to the Congress

no later than the first day of May each

year. See 28 U.S.C. 994 (o), (p). Absent

action of Congress to the contrary, the

amendments become effective on the

date specified by the Commission (i.e.,

November 1, 1995) by operation of law.

Notice of the amendments submitted

to the Congress on May 1, 1995, was

published in the Federal Registers of

January 9, 1995 (60 FR 2430) and March

15, 1995 (60 FR 14054). A public

hearing on the proposed amendments

was held in Washington, DC, on March

14, 1995. After review of the hearing

testimony and additional public

comment, the Commission promulgated

the amendments set forth below, each

having been approved by at least four

voting Commissioners.

In connection with its ongoing

process of guideline review, the

Commission welcomes comment on any

aspect of the sentencing guidelines,

policy statements, and official

commentary. Specifically, the

Commission solicits comment on

which, if any, of the amendments

submitted to the Congress that may

result in a lower guideline range should

be made retroactive to previously

sentenced defendants under Policy

Statement 1B1.10.

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

Richard P. Conaboy,

Chairman.

Amendments to the Sentencing

Guidelines

Pursuant to Section 994(p) of Title 28,

United States Code, the United States

Sentencing Commission reports to the

Congress the following amendments to

the sentencing guidelines, and the

reasons therefor. As authorized by this

section, the Commission specifies an

effective date of November 1, 1995, for

these amendments.

Amendments to the Sentencing

Guidelines, Policy Statements, and

Official Commentary

1. Amendment: Section 2A2.3 is

amended by inserting the following

additional subsection:

‘‘(b) Specific Offense Characteristic

(1) If the offense resulted in

substantial bodily injury to an

individual under the age of sixteen

years, increase by 4 levels.’’.

The Commentary to § 2A2.3 captioned

‘‘Application Notes’’ is amended by

inserting the following additional note:

‘‘3. ‘Substantial bodily injury’ means

‘bodily injury which involves—(A) a

temporary but substantial

disfigurement; or (B) a temporary but

substantial loss or impairment of the

function of any bodily member, organ,

or mental faculty.’ 18 U.S.C. 113(b)(1).’’.

Reason for Amendment: This

amendment addresses the enactment of

18 U.S.C. 113(a)(7) (pertaining to certain

assaults against minors) by section

170201 of the Violent Crime Control and

Law Enforcement Act of 1994.

2. Amendment: The Commentary to

§ 2A3.1 captioned ‘‘Application Notes’’

is amended by inserting the following

additional notes:

‘‘6. If a victim was sexually abused by

more than one participant, an upward

departure may be warranted. See

§ 5K2.8 (Extreme Conduct).

‘‘7. If the defendant’s criminal history

includes a prior sentence for conduct

that is similar to the instant offense, an

upward departure may be warranted.’’.

The Commentary to § 2A3.2 captioned

‘‘Application Notes’’ is amended by

inserting the following additional note:

‘‘4. If the defendant’s criminal history

includes a prior sentence for conduct

that is similar to the instant offense, an

upward departure may be warranted.’’.

The Commentary to § 2A3.3 captioned

‘‘Application Note’’ is amended by

deleting ‘‘Note’’ and inserting in lieu

thereof ‘‘Notes’’; and by inserting the

following additional note:

‘‘2. If the defendant’s criminal history

includes a prior sentence for conduct

that is similar to the instant offense, an

upward departure may be warranted.’’.

The Commentary to § 2A3.4 captioned

‘‘Application Notes’’ is amended by

inserting the following additional note:

‘‘5. If the defendant’s criminal history

includes a prior sentence for conduct

that is similar to the instant offense, an

upward departure may be warranted.’’.

Reason for Amendment: Section

40111 of the Violent Crime Control and

Law Enforcement Act of 1994 doubles

the authorized maximum term of

imprisonment for defendants convicted

of sexual abuse offenses who have been

convicted previously of aggravated

sexual abuse, sexual abuse, or

aggravated sexual contact (18 U.S.C.

2247). Section 40111 also directs the

Sentencing Commission to implement

this provision by promulgating

amendments, if appropriate, to the

applicable sentencing guidelines.

Although the Chapter Two sexual abuse

guidelines do not provide for

enhancement for repeat sex offenses,

Chapter Four (Criminal History and

Criminal Livelihood) does include a

determination of the seriousness of the

defendant’s criminal record based upon

prior convictions (§ 4A1.1). Section

4B1.1 (Career Offender) also provides

substantially enhanced penalties for

offenders who engage in a crime of

violence (including forcible sexual

offenses) or controlled substance

trafficking offense, having been

sentenced previously on two or more

occasions for offenses of either type.

Moreover, § 4A1.3 (Adequacy of

Criminal History category) provides that

an upward departure may be considered

‘‘[i]f reliable information indicates that

the criminal history category does not

reflect the seriousness of the defendant’s

past criminal conduct or the likelihood

that the defendant will commit other

crimes.’’ This amendment strengthens

the sexual offense guidelines by

expressly listing as a basis for upward

departure the fact that the defendant has

a prior sentence for conduct similar to

the instant sexual offense.
Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Notices 25075

Section 40112 of the Violent Crime

Control and Law Enforcement Act of

1994 directs the Commission to conduct

a study and consider the adequacy of

the guidelines for sexual offenses with

respect to a number of factors. The

provision also requires the preparation

of a report to Congress analyzing federal

rape sentences and obtaining comment

from independent experts. See Report to

Congress: Analysis of Penalties for

Federal Rape Cases (March 13, 1995).

The Commission found that, in general,

the current guidelines provide

appropriate penalties for these offenses.

This amendment strengthens § 2A3.1

(Criminal Sexual Abuse; Attempt to

Commit Criminal Sexual Abuse) in one

respect by expressly listing as a basis for

an upward departure the fact that a

victim was sexually abused by more

than one participant.

3. Amendment: Section 2B1.1(b) is

amended by deleting subdivision (2);

and by renumbering the remaining

subdivisions, and any references

thereto, accordingly.

Section 2B1.1 is amended by inserting

the following additional subsection:

‘‘(c) Cross Reference

(1) If (A) a firearm, destructive device,

explosive material, or controlled

substance was taken, or the taking of

such item was an object of the offense,

or (B) the stolen property received,

transported, transferred, transmitted, or

possessed was a firearm, destructive

device, explosive material, or controlled

substance, apply § 2D1.1, § 2D2.1,

§ 2K1.3, or § 2K2.1, as appropriate, if the

resulting offense level is greater than

that determined above.’’.

The Commentary to § 2B1.1 captioned

‘‘Background’’ is amended by deleting

the fourth paragraph.

Reason for Amendment: This

amendment addresses an inconsistency

in guideline penalties between theft

offenses involving the taking of firearms

or controlled substances that are

sentenced under § 2B1.1 (Larceny,

Embezzlement, and Other Forms of

Theft; Receiving, Transporting,

Transferring, Transmitting, or

Possessing Stolen Property) and similar

offenses sentenced under § 2D1.1

(Unlawful Manufacturing, Importing,

Exporting, or Trafficking; Attempt or

Conspiracy), § 2D2.1 (Unlawful

Possession; Attempt or Conspiracy),

§ 2K1.3 (Unlawful Receipt, Possession,

or Transportation of Explosive

Materials; Prohibited Transactions

Involving Explosive Materials), or

§ 2K2.1 (Unlawful Receipt, Possession,

or Transportation of Firearms or

Ammunition; Prohibited Transactions

Involving Firearms or Ammunition). It

accomplishes this by providing a cross

reference in § 2B1.1 directing the

application of § 2D1.1, § 2D2.1, § 2K1.3,

or § 2K2.1, as appropriate, if the

resulting offense level is greater.

4. Amendment: Section 2B5.1(b) is

amended by inserting the following

additional subdivision:

‘‘(3) If a dangerous weapon (including

a firearm) was possessed in connection

with the offense, increase by 2 levels. If

the resulting offense level is less than

level 13, increase to level 13.’’.

The Commentary to § 2B5.1 captioned

‘‘Application Notes’’ is amended in

Note 2 by deleting ‘‘2B5.2’’ and

inserting in lieu thereof ‘‘2F1.1’’.

The Commentary to § 2B5.1 captioned

‘‘Background’’ is amended by inserting

the following additional paragraph as

the second paragraph:

‘‘ Subsection (b)(3) implements, in

a broader form, the instruction to the

Commission in section 110512 of Public

Law 103–322.’’.

Section 2F1.1(b)(4) is amended by

inserting ‘‘(A)’’ immediately after

‘‘involved’’; and by inserting ‘‘or (B)

possession of a dangerous weapon

(including a firearm) in connection with

the offense,’’ immediately after

‘‘injury,’’.

The Commentary to § 2F1.1 captioned

‘‘Background’’ is amended by inserting

the following additional paragraph as

the sixth paragraph:

‘‘ Subsection (b)(4)(B) implements,

in a broader form, the instruction to the

Commission in section 110512 of Public

Law 103–322.’’.

Reason for Amendment: Section

110512 of the Violent Crime Control and

Law Enforcement Act of 1994 directs

the Commission to amend its sentencing

guidelines to provide an appropriate

enhancement for a defendant convicted

of a felony under Chapter 25

(Counterfeiting and Forgery) of title 18,

United States Code, if the defendant

used or carried a firearm during and in

relation to the offense. This amendment

implements this directive in a

somewhat broader form. In addition, it

corrects an outdated reference in the

Commentary to § 2B5.1 (Offenses

Involving Counterfeit Bearer Obligations

of the United States).

5. Amendment: Section 2D1.1(b) is

amended by deleting subdivision (1); by

renumbering subdivision (2) as (3); and

by inserting:

‘‘(1) (Apply the greatest):

(A) If the defendant discharged a

firearm, increase by 6 levels, but if the

resulting offense level is less than level

24, increase to level 24.

(B) If the defendant brandished or

otherwise used a dangerous weapon

(including a firearm), increase by 4

levels, but if the resulting offense level

is less than level 19, increase to level 19.

(C) If a dangerous weapon (including

a firearm) was possessed, increase by 3

levels, but if the dangerous weapon was

a firearm and the resulting offense level

is less than level 18, increase to level 18.

(2) If the defendant possessed a

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

or 18 U.S.C. 921(a)(30), increase by 2

levels.’’.

Section 2D1.1(c)(1) is amended by

deleting ‘‘1.5 KG or more of Cocaine

Base;’’.

Section 2D1.1(c)(2) is amended by

deleting ‘‘At least 500 G but less than

1.5 KG of Cocaine Base;’’.

Section 2D1.1(c)(3) is amended by

deleting ‘‘At least 150 G but less than

500 G of Cocaine Base;’’.

Section 2D1.1(c)(4) is amended by

deleting ‘‘At least 50 G but less than 150

G of Cocaine Base;’’.

Section 2D1.1(c)(5) is amended by

deleting ‘‘At least 35 G but less than 50

G of Cocaine Base;’’.

Section 2D1.1(c)(6) is amended by

deleting ‘‘At least 20 G but less than 35

G of Cocaine Base;’’.

Section 2D1.1(c)(7) is amended by

deleting ‘‘At least 5 G but less than 20

G of Cocaine Base;’’.

Section 2D1.1(c)(8) is amended by

deleting ‘‘At least 4 G but less than 5 G

of Cocaine Base;’’.

Section 2D1.1(c)(9) is amended by

deleting ‘‘At least 3 G but less than 4 G

of Cocaine Base;’’.

Section 2D1.1(c)(10) is amended by

deleting ‘‘At least 2 G but less than 3 G

of Cocaine Base;’’.

Section 2D1.1(c)(11) is amended by

deleting ‘‘At least 1 G but less than 2 G

of Cocaine Base;’’.

Section 2D1.1(c)(12) is amended by

deleting ‘‘At least 500 MG but less than

1 G of Cocaine Base;’’.

Section 2D1.1(c)(13) is amended by

deleting ‘‘At least 250 MG but less than

500 MG of Cocaine Base;’’.

Section 2D1.1(c)(14) is amended by

deleting ‘‘Less than 250 MG of Cocaine

Base;’’.

Section 2D1.1(c) is amended by

deleting:

‘‘ ‘Cocaine base,’ for the purposes of

this guideline, means ‘crack.’ ‘Crack’ is

the street name for a form of cocaine

base, usually prepared by processing

cocaine hydrochloride and sodium

bicarbonate, and usually appearing in a

lumpy, rocklike form.’’,

and inserting in lieu thereof:

‘‘ ‘Cocaine,’ for the purposes of this

guideline, includes cocaine

hydrochloride, cocaine base, and crack

cocaine.’’.

The Commentary to § 2D1.1 captioned

‘‘Application Notes’’ is amended in
25076 Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Notices

Note 10 in the subdivision captioned

‘‘Cocaine and Other Schedule I and II

Stimulants’’ by deleting:

‘‘1 gm of Cocaine Base (‘Crack’) = 20

kg of marihuana’’.

The Commentary to § 2D1.1 captioned

‘‘Application Notes’’ is amended in

Note 3 by deleting ‘‘ ‘firearm’ and

‘dangerous weapon’ ’’ and inserting in

lieu thereof ‘‘ ‘firearm,’ ‘dangerous

weapon,’ ‘brandished,’ and ‘otherwise

used’ ’’; and by inserting the following

additional paragraph at the end:

‘‘A ‘firearm described in 18 U.S.C.

921(a)(30)’ (pertaining to semiautomatic

assault weapons) does not include a

weapon exempted under the provisions

of 18 U.S.C. 922(v)(3). A ‘firearm

described in 26 U.S.C. 5845(a)’ is

discussed in the Commentary to § 2K2.1

(Unlawful Receipt, Possession, or

Transportation of Firearms or

Ammunition; Prohibited Transactions

Involving Firearms or Ammunition).’’.

The Commentary to § 2D1.1 captioned

‘‘Application Notes’’ is amended in

Note 13 by deleting ‘‘(b)(2)(B)’’ and

inserting in lieu thereof ‘‘(b)(3)(B)’’.

The Commentary to § 2D1.1 captioned

‘‘Application Notes’’ is amended by

inserting the following additional notes:

‘‘20. Under subsections (b)(1) (A), (B)

and (b)(2), the defendant is accountable

for his own conduct and the conduct of

others that he aided, abetted, counseled,

commanded, induced, procured, or

willfully caused. If a firearm is

discharged by a participant in the same

vehicle as the defendant, or otherwise in

close proximity to the defendant, there

shall be a rebuttable presumption that

the defendant aided or abetted,

counseled, commanded, or induced the

discharge of the firearm.

‘‘21. If the offense resulted in bodily

injury to any victim, an upward

departure may be warranted.’’.

The Commentary to § 2D1.1 captioned

‘‘Background’’ is amended in the fifth

paragraph by deleting ‘‘(b)(2)’’ and

inserting in lieu thereof ‘‘(b)(3)’’.

Section 2D2.1 is amended in

subsection (a)(1) by deleting ‘‘, an

analogue of these, or cocaine base’’ and

inserting in lieu thereof ‘‘(or an

analogue thereof)’’.

Section 2D2.1 is amended by deleting

subsection (b).

The Commentary to § 2D2.1 captioned

‘‘Background’’ is amended by deleting

the second paragraph.

Reason for Amendment: This

amendment further implements section

280006 of the Violent Crime Control and

Law Enforcement Act of 1994 in which

Congress directed the Commission to

study federal sentencing policy as it

relates to possession and distribution of

all forms of cocaine, specifically

including the differences in penalty

levels that apply to powder cocaine and

crack cocaine. The Commission

conducted public hearings, received

written comment, and conducted its

own analyses of the relevant research

and of the Commission’s extensive

database on cocaine sentences imposed

in the federal courts. The results of this

study are contained in the Special

Report to Congress: Cocaine and Federal

Sentencing Policy (February 1995).

This amendment specifically

responds to the Congressional directive

to make recommendations for retention

or modification of current cocaine

penalties. The Commission is

recommending separately that Congress

eliminate the differential treatment of

crack and powder cocaine in the

mandatory minimum penalties found in

current statutes. With this amendment,

the Commission also makes changes in

the sentencing guidelines that it

believes will better accomplish the

purposes of sentencing and will do so

more fairly than the current guidelines.

This amendment equalizes sentences for

offenses involving similar amounts of

crack cocaine and powder cocaine at the

level currently provided for powder

cocaine. It also increases punishment

for all drug offenses that involve

firearms or other dangerous weapons,

and authorizes an upward departure for

bodily injury.

In public comment and testimony

received by the Commission, several

problems with the current penalty

differential between crack and powder

cocaine were cited. Critics questioned

whether lengthier penalties for crack are

justified by differences between the two

forms of cocaine. Also, many

commentators and a study issued by the

U.S. Department of Justice, Bureau of

Justice Statistics, noted that the

discrepancy in the sentence lengths for

crack and powder cocaine has been a

major factor in a growing gap between

the average sentence imposed on Whites

and on minorities in the federal courts.

(See Sentencing in the Federal Courts:

Does Race Matter?, November 1993.)

To evaluate current cocaine

sentencing policy, the Commission

reviewed the legislative history of the

relevant penalty provisions and the

goals that Congress has established for

cocaine sentencing. On the question of

the impact of current penalties on

Blacks, the Commission concluded that

no evidence supports a finding that

racial bias or animus undergirded the

current penalty structure. However, the

Commission was deeply concerned that

almost ninety percent of offenders

convicted of crack cocaine offenses in

the federal courts are Black. The

Commission concluded that it is

important that sufficient policy bases

exist to justify a penalty differential that

has a severe impact on a particular

minority group.

For reasons discussed below, the

Commission concluded that sufficient

policy bases for the current penalty

differential do not exist. Instead of

differential treatment of crack and

powder cocaine defendants based solely

on the form of the drug involved in the

offense, the Commission concluded that

fairer sentencing would result from

guideline enhancements that are

targeted to the particular harms that are

associated with some, but not all, crack

cocaine offenses. Harm-specific

guideline enhancements will better

punish the most culpable offenders and

protect the public from the most

dangerous offenders, while avoiding

blanket increases for all offenders

involved with the crack form of cocaine.

As described in the Special Report,

the 100-to-1 quantity ratio was

established before the guideline system

was in effect and before Congress could

know how many of the harms associated

with crack cocaine offenses would be

captured by other guideline sentence

enhancements. For example, the

guidelines ensure lengthier

imprisonment for leaders and managers

of drug distribution offenses (§ 3B1.1),

for the sale of controlled substances to

juveniles or pregnant women (§ 2D1.2),

for the sale of controlled substances in

protected locations (§ 2D1.2), for the use

of juveniles in controlled substance

offenses (§ 2D1.2), and for repeat

offenders (Chapter 4). For offenses

involving death, a cross-reference to the

first-degree murder guideline is

provided (§ 2D1.1). Consequently, to the

extent that these other guideline

provisions take into account the

increased harms associated with some

crack offenses, the Commission has

concluded that the higher offense levels

based solely on the form of the drug that

are found in the current drug quantity

table should be reduced.

The Commission also has determined

that, given the increased dangers posed

by the possession and use of firearms or

other dangerous weapons in connection

with controlled substance offenses

(including crack cocaine offenses), the

enhancements provided by the

guidelines for these factors should be

increased. Consequently, the

amendment increases the enhancement

for possession of a firearm or other

dangerous weapon from two to three

levels, with a minimum offense level of

18 for possession of a firearm. A new

four-level adjustment for brandishing or

otherwise using a dangerous weapon
Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Notices 25077

and a six-level adjustment for

discharging a firearm are added.

Additionally, a two-level enhancement

for possession of a firearm of the type

described in 26 U.S.C. 5845(a) or 18

U.S.C. 921(a)(30) is added (e.g., a

machine gun, sawed-off shotgun, or a

semi-automatic assault weapon). A new

application note expressly lists bodily

injury to any victim as a grounds for an

upward departure.

With guideline enhancements that are

targeted to factors associated with some

crack cocaine offenses, the Commission

concluded that the penalty differential

based solely on the form of the drug

should be eliminated. Crack and powder

cocaine are pharmacologically the same

drug. Both are dangerous and have a

serious potential for abuse. Cocaine is

imported and distributed in powder

form, meaning that those persons

highest in the distribution chain—

whom the Commission considers the

most culpable and the most responsible

for the nation’s cocaine problem—deal

only in powder. Crack is manufactured

from powder cocaine, generally near the

point of retail sale, using a simple

conversion process.

This cocaine distribution pattern, in

combination with the current penalty

differential, has resulted in cases in

which retail crack dealers sometimes get

longer sentences than the wholesale

powder distributors who supply them.

Under this amendment, the drug

trafficking guidelines (§§ 2D1.1, 2D1.2,

2D1.5) will provide for the same

significant punishment for crack

distributors that is currently provided

for distributors of like quantities of

powder cocaine. The amended

guideline will base punishment on the

amount of cocaine involved and other

associated, systematic harms, not on the

form of cocaine. Hence, large-scale

powder or crack cocaine suppliers will

get longer sentences than small-scale

street dealers. Conforming changes are

also made in the simple possession

guideline (§ 2D2.1).

The Commission is aware that an

increase in cocaine addiction has been

attributed to crack cocaine. Addiction is

more likely when a drug is

administered, as is crack, through

smoking rather than through nasal

insufflation (snorting). However, the

Commission determined that this is not

a reliable basis for establishing longer

penalties for crack cocaine, because

powder cocaine may be injected and

injection is even more likely to lead to

addiction than is smoking.

After careful consideration, the

Commission concluded that increased

penalties are also not an appropriate

response to concerns about social

maladies that have been associated with

crack, such as health problems and

parental neglect among user groups. The

Commission was unable to establish

that these social problems result from

the drug itself rather than from the

disadvantaged social and economic

environment in which the drug often is

used. Moreover, these problems are not

unique to crack cocaine but are

associated with any serious drug or

alcohol abuse. The Commission believes

that increased punishment for crack

cocaine solely because it is more

commonly used by members of

disadvantaged groups is not

appropriate. Nor does the fact that crack

cocaine is typically sold in smaller

amounts, which may make it more

readily available among lower-income

groups, justify increased punishment

compared to a form of the drug that is

more commonly sold in amounts

available only to more affluent persons.

After consideration of the factors in

the Special Report to Congress and the

purposes of sentencing set forth in 18

U.S.C. 3553, the Commission has

concluded that the guideline provisions,

as amended, will better take into

account the increased harms associated

with some crack cocaine offenses and,

thus, the different offense levels based

solely on the form of cocaine are not

required.

6. Amendment: Section 2D1.1(b) is

amended by inserting the following

additional subdivision:

‘‘(4) If the object of the offense was the

distribution of a controlled substance in

a prison, correctional facility, or

detention facility, increase by 2 levels.’’.

Section 2D2.1 is amended by inserting

the following new subsection:

‘‘(b) Cross Reference

(1) If the offense involved possession

of a controlled substance in a prison,

correctional facility, or detention

facility, apply § 2P1.2 (Providing or

Possessing Contraband in Prison).’’.

Reason for Amendment: Section

90103 of the Violent Crime Control and

Law Enforcement Act of 1994 directs

the Commission to amend the

guidelines to provide an adequate

enhancement for an offense under 21

U.S.C. 841 that involves distributing a

controlled substance in a federal prison

or detention facility. This amendment

addresses this directive by adding a

two-level enhancement to § 2D1.1

(Unlawful Manufacturing, Importing,

Exporting, or Trafficking; Attempt or

Conspiracy) for an offense involving a

prison or detention facility, similar to

the two-level increase provided for

other protected locations in § 2D1.2

(Drug Offenses Occurring Near

Protected Locations or Involving

Underage or Pregnant Individuals;

Attempt or Conspiracy).

Section 90103 also directs the

Commission to amend the guidelines to

provide an appropriate enhancement for

an offense of simple possession of a

controlled substance under 21 U.S.C.

844 that occurs in a federal prison or

detention facility. This amendment

addresses this directive by providing a

cross reference from § 2D2.1 (Unlawful

Possession; Attempt or Conspiracy) to

§ 2P1.2 (Providing or Possessing

Contraband in Prison) in such cases.

7. Amendment: Section 2D1.1(b) is

amended by inserting the following

additional subdivision:

‘‘(5) If the defendant meets the criteria

set forth in subdivisions (1)–(5) of

§ 5C1.2 (Limitation on Applicability of

Statutory Minimum Sentences in

Certain Cases) and the offense level

determined above is level 26 or greater,

decrease by 2 levels.’’.

Section 5C1.2 is repromulgated

without change.

Reason for Amendment: Section

80001(b) of the Violent Crime Control

and Law Enforcement Act of 1994 (the

‘‘Safety Valve’’ provision) directs the

Commission to promulgate guidelines

and policy statements to implement

section 80001(a) (providing an

exception to otherwise applicable

statutory mandatory minimum

sentences for certain defendants

convicted of specified drug offenses).

Pursuant to this provision, the

Commission promulgated § 5C1.2

(Limitation on Applicability of Statutory

Minimum Sentences in Certain Cases)

as an emergency amendment effective

September 23, 1994. Under the terms of

the congressionally-granted authority,

this amendment is temporary unless

repromulgated in the next amendment

cycle under regularly applicable

amendment procedures. See Public Law

No. 100–182, section 21, set forth as an

editorial note under 28 U.S.C. 994. This

amendment repromulgates § 5C1.2, as

set forth in the Guidelines Manual

effective November 1, 1994. In addition,

this amendment adds a new subsection

to § 2D1.1 to implement this provision

by providing a two-level decrease in

offense level for cases meeting the

criteria set forth in § 5C1.2(1)–(5).

8. Amendment: Section 2D1.1(c) is

amended in the fifth note immediately

following the Drug Quantity Table by

deleting ‘‘if the offense involved (A) 50

or more marihuana plants, treat each

plant as equivalent to 1 KG of

marihuana; (B) fewer than 50 marihuana

plants,’’, and by inserting ‘‘, regardless

of sex,’’ immediately following ‘‘plant’’.

The Commentary to § 2D1.1 captioned

‘‘Background’’ is amended in the fourth
25078 Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Notices

paragraph by deleting ‘‘In cases

involving fifty or more marihuana

plants, an equivalency of one plant to

one kilogram of marihuana is derived

from the statutory penalty provisions of

21 U.S.C. 841(b)(1)(A), (B), and (D). In

cases involving fewer than fifty plants,

the statute is silent as to the

equivalency. For cases involving fewer

than fifty’’ and inserting in lieu thereof

‘‘For marihuana’’; and by deleting ‘‘, in

the case of fewer than fifty marihuana

plants,’’.

Reason for Amendment: For offenses

involving 50 or more marihuana plants,

the guidelines currently use an

equivalency of one plant = one kilogram

of marihuana, reflecting the quantities

associated with the five- and ten-year

mandatory minimum penalties in 21

U.S.C. 841. For offenses involving fewer

than 50 marihuana plants, the

guidelines use an equivalency of one

plant = 100 grams of marihuana, unless

the weight of the actual marihuana is

greater. In actuality, a marihuana plant

does not produce a yield of one

kilogram of marihuana. The one plant =

100 grams of marihuana equivalency

used by the Commission for offenses

involving fewer than 50 marihuana

plants was selected as a reasonable

approximation of the actual average

yield of marihuana plants taking into

account (1) studies reporting the actual

yield of marihuana plants (37.5 to 412

grams depending on growing

conditions); (2) that all plants regardless

of size are counted for guideline

purposes while, in actuality, not all

plants will produce useable marihuana

(e.g., some plants may die of disease

before maturity, and when plants are

grown outdoors some plants may be

consumed by animals); and (3) that male

plants, which are counted for guideline

purposes, are frequently culled because

they do not produce the same quality of

marihuana as do female plants. To

enhance fairness and consistency, this

amendment adopts the equivalency of

100 grams per marihuana plant for all

guideline determinations.

9. Amendment: Section 2D1.1(c)(10)

is amended by deleting:

‘‘20 KG or more of Secobarbital (or the

equivalent amount of other Schedule I

or II Depressants) or Schedule III

substances (except Anabolic Steroids);

40,000 or more units of Anabolic

Steroids.’’,

and by inserting in lieu thereof:

‘‘40,000 or more units of Schedule I

or II Depressants or Schedule III

substances.’’.

Section 2D1.1(c)(11) is amended by

deleting:

‘‘At least 10 KG but less than 20 KG

of Secobarbital (or the equivalent

amount of other Schedule I or II

Depressants) or Schedule III substances

(except Anabolic Steroids);

At least 20,000 but less than 40,000

units of Anabolic Steroids.’’,

and by inserting in lieu thereof:

‘‘At least 20,000 but less than 40,000

units of Schedule I or II Depressants or

Schedule III substances.’’.

Section 2D1.1(c)(12) is amended by

deleting:

‘‘At least 5 KG but less than 10 KG of

Secobarbital (or the equivalent amount

of other Schedule I or II Depressants) or

Schedule III substances (except

Anabolic Steroids);

At least 10,000 but less than 20,000

units of Anabolic Steroids.’’,

and by inserting in lieu thereof:

‘‘At least 10,000 but less than 20,000

units of Schedule I or II Depressants or

Schedule III substances.’’.

Section 2D1.1(c)(13) is amended by

deleting:

‘‘At least 2.5 KG but less than 5 KG

of Secobarbital (or the equivalent

amount of other Schedule I or II

Depressants) or Schedule III substances

(except Anabolic Steroids);

At least 5,000 but less than 10,000

units of Anabolic Steroids.’’,

and by inserting in lieu thereof:

‘‘At least 5,000 but less than 10,000

units of Schedule I or II Depressants or

Schedule III substances.’’.

Section 2D1.1(c)(14) is amended by

deleting:

‘‘At least 1.25 KG but less than 2.5 KG

of Secobarbital (or the equivalent

amount of other Schedule I or II

Depressants) or Schedule III substances

(except Anabolic Steroids);

At least 2,500 but less than 5,000

units of Anabolic Steroids; 20 KG or

more of Schedule IV substances.’’,

and inserting in lieu thereof:

‘‘At least 2,500 but less than 5,000

units of Schedule I or II Depressants or

Schedule III substances.

40,000 or more units of Schedule IV

substances.’’.

Section 2D1.1(c)(15) is amended by

deleting:

‘‘At least 500 G but less than 1.25 KG

of Secobarbital (or the equivalent

amount of other Schedule I or II

Depressants) or Schedule III substances

(except Anabolic Steroids);

At least 1,000 but less than 2,500

units of Anabolic Steroids;

At least 8 KG but less than 20 KG of

Schedule IV substances.’’,

and inserting in lieu thereof:

‘‘At least 1,000 but less than 2,500

units of Schedule I or II Depressants or

Schedule III substances;

At least 16,000 but less than 40,000 or

more units of Schedule IV substances.’’.

Section 2D1.1(c)(16) is amended by

deleting:

‘‘At least 125 G but less than 500 G

of Secobarbital (or the equivalent

amount of other Schedule I or II

Depressants) or Schedule III substances

(except Anabolic Steroids);

At least 250 but less than 1,000 units

of Anabolic Steroids;

At least 2 KG but less than 8 KG of

Schedule IV substances; 20 KG or more

of Schedule V substances.’’,

and inserting in lieu thereof:

‘‘At least 250 but less than 1,000 units

of Schedule I or II Depressants or

Schedule III substances;

At least 4,000 but less than 16,000

units of Schedule IV substances;

At least 40,000 or more units of

Schedule V substances.’’.

Section 2D1.1(c)(17) is amended by

deleting:

‘‘Less than 125 G of Secobarbital (or

the equivalent amount of other

Schedule I or II Depressants) or

Schedule III substances (except

Anabolic Steroids);

Less than 250 units of Anabolic

Steroids;

Less than 2 KG of Schedule IV

substances;

Less than 20 KG of Schedule V

substances.’’,

and inserting in lieu thereof:

‘‘Less than 250 units of Schedule I or

II Depressants or Schedule III

substances;

Less than 4,000 units of Schedule IV

substances;

Less than 40,000 units of Schedule V

substances.’’.

Section 2D1.1(c) is amended in the

notes following the Drug Quantity Table

by inserting the following additional

note as the sixth note:

‘‘In the case of Schedule I or II

Depressants, Schedule III substances

(except anabolic steroids), Schedule IV

substances, and Schedule V substances,

one ‘unit’ means one pill, capsule, or

tablet. If the substance is in liquid form,

one ‘unit’ means 0.5 gms.’’.

The Commentary to § 2D1.1 captioned

‘‘Application Notes’’ is amended in

Note 10d by deleting ‘‘28 kilograms’’

and inserting in lieu thereof ‘‘56,000

units’’; by deleting ‘‘50 kilograms’’ and

inserting in lieu thereof ‘‘100,000

units’’; and by deleting ‘‘100 kilograms’’

and inserting in lieu thereof ‘‘200,000

units’’.

The Commentary to § 2D1.1 captioned

‘‘Application Notes’’ is amended in

Note 10 in the Drug Equivalency Tables

in the subsection captioned

‘‘Secobarbital and Other Schedule I or II

Depressants’’ by deleting ‘‘ Secobarbital

and Other’’; and by deleting:
Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Notices 25079

‘‘1 gm of Amobarbital = 2 gm of

marihuana

1 gm of Glutethimide = 0.4 gm of

marihuana

1 gm of Methaqualone = 0.7 gm of

marihuana

1 gm of Pentobarbital = 2 gm of

marihuana

1 gm of Secobarbital = 2 gm of

marihuana’’, and inserting in lieu

thereof:

‘‘1 unit of a Schedule I or II

Depressant = 1 gm of marihuana’’.

The Commentary to § 2D1.1 captioned

‘‘Application Notes’’ is amended in

Note 10 in the Drug Equivalency Tables

in the subsection captioned ‘‘Schedule

III Substances’’ by deleting:

‘‘1 gm of a Schedule III Substance

(except anabolic steroids) = 2 gm of

marihuana

1 unit of anabolic steroids = 1 gm of

marihuana’’,

and inserting in lieu thereof:

‘‘1 unit of a Schedule III Substance =

1 gm of marihuana’’.

The Commentary to § 2D1.1 captioned

‘‘Application Notes’’ is amended in

Note 10 in the Drug Equivalency Tables

in the subsection captioned ‘‘Schedule

IV Substances’’ by deleting:

‘‘1 gm of a Schedule IV Substance =

0.125 gm of marihuana’’,

and inserting in lieu thereof:

‘‘1 unit of a Schedule IV Substance =

0.0625 gm of marihuana’’.

The Commentary to § 2D1.1 captioned

‘‘Application Notes’’ is amended in

Note 10 in the Drug Equivalency Tables

in the subsection captioned ‘‘Schedule

V Substances’’ by deleting:

‘‘1 gm of a Schedule V Substance =

0.0125 gm of marihuana’’,

and inserting in lieu thereof:

‘‘1 unit of a Schedule V Substance =

0.00625 gm of marihuana’’.

The Commentary to § 2D1.1 captioned

‘‘Application Notes’’ is amended in

Note 11 in the ‘‘Typical Weight Per Unit

Table’’ by deleting the caption

‘‘Depressants’’; and by deleting

‘‘Methaqualone* 300 mg’’.

Reason for Amendment: This

amendment modifies the determination

of the base offense level with respect to

Schedule I and II Depressants and

Schedule III, IV, and V controlled

substances by applying the Drug

Quantity Table according to the number

of pills, capsules, or tablets rather than

by the gross weight of the pills,

capsules, or tablets. Schedule I and II

Depressants and Schedule III, IV, and V

substances are almost always in pill,

capsule, or tablet form. The current

guidelines use the total weight of the

pill, tablet, or capsule containing the

controlled substance. This method leads

to anomalies because the weight of most

pills is determined primarily by the

filler rather than the controlled

substance. Thus, heavy pills lead to

higher offense levels even though there

is little or no relationship between gross

weight and the potency of the pill.

Applying the Drug Quantity Table

according to the number of pills will

both simplify guideline application and

more fairly assess the scale and

seriousness of the offense.

10. Amendment: Section 2D1.1(c) is

amended in the notes following the

Drug Quantity Table by inserting the

following additional notes at the end:

‘‘Hashish, for the purposes of this

guideline, means a resinous substance

of cannabis that includes (i) one or more

of the tetrahydrocannabinols (as listed

in 21 CFR § 1308.11(d)(25)), (ii) at least

two of the following: cannabinol,

cannabidiol, or cannabichromene, and

(iii) fragments of plant material (such as

cystolith fibers).

Hashish oil, for the purposes of this

guideline, means a preparation of the

soluble cannabinoids derived from

cannabis that includes (i) one or more

of the tetrahydrocannabinols (as listed

in 21 CFR 1308.11(d)(25)) and (ii) at

least two of the following: cannabinol,

cannabidiol, or cannabichromene, and

(iii) is essentially free of plant material

(e.g., plant fragments). Typically,

hashish oil is a viscous, dark colored

oil, but it can vary from a dry resin to

a colorless liquid.’’.

Section 2D1.1(c) is amended by

inserting ‘‘Notes to Drug Quantity

Table:’’ immediately following the

asterisk at the beginning of the notes to

the Drug Quantity Table; and by

inserting a letter designation

immediately before each note in

alphabetical order beginning with ‘‘(A)’’.

The Commentary to § 2D1.1 captioned

‘‘Application Notes’’ is amended in

Note 1 by inserting the following

additional paragraph at the end:

‘‘Similarly, in the case of marihuana

having a moisture content that renders

the marihuana unsuitable for

consumption without drying (this might

occur, for example, with a bale of rainsoaked marihuana or freshly harvested

marihuana that had not been dried), an

approximation of the weight of the

marihuana without such excess

moisture content is to be used.’’.

The Commentary to § 2D1.1 captioned

‘‘Application Notes’’ is amended in

Note 10 in the Drug Equivalency Table

in the subdivision captioned ‘‘Schedule

I or II Opiates’’ by inserting at the end:

‘‘1 gm of Levo-alpha-acetylmethadol

(LAAM)= 3 kg of marihuana’’.

The Commentary to § 2D1.1 captioned

‘‘Application Notes’’ is amended in

Note 10 in the Drug Equivalency Table

in the subdivision captioned ‘‘Cocaine

and Other Schedule I and II Stimulants’’

by deleting:

‘‘1 gm of L-Methamphetamine/Levomethamphetamine/L-Desoxyephedrine

= 40 gm of marihuana’’;

and inserting in lieu thereof:

‘‘1 gm of Khat = .01 gm of

marihuana’’.

The Commentary to § 2D1.1 captioned

‘‘Application Notes’’ is amended in

Note 12 by deleting:

‘‘In an offense involving negotiation

to traffic in a controlled substance, the

weight under negotiation in an

uncompleted distribution shall be used

to calculate the applicable amount.

However, where the court finds that the

defendant did not intend to produce

and was not reasonably capable of

producing the negotiated amount, the

court shall exclude from the guideline

calculation the amount that it finds the

defendant did not intend to produce

and was not reasonably capable of

producing.’’,

and by inserting in lieu thereof:

‘‘In an offense involving an agreement

to sell a controlled substance, the

agreed-upon quantity of the controlled

substance shall be used to determine the

offense level unless the sale is

completed and the amount delivered

more accurately reflects the scale of the

offense. For example, a defendant agrees

to sell 500 grams of cocaine, the

transaction is completed by the delivery

of the controlled substance—actually

480 grams of cocaine, and no further

delivery is scheduled. In this example,

the amount delivered more accurately

reflects the scale of the offense. In

contrast, in a reverse sting, the agreedupon quantity of the controlled

substance would more accurately reflect

the scale of the offense because the

amount actually delivered is controlled

by the government, not by the

defendant. If, however, the defendant

establishes that he or she did not intend

to provide, or was not reasonably

capable of providing, the agreed-upon

quantity of the controlled substance, the

court shall exclude from the offense

level determination the amount of

controlled substance that the defendant

establishes that he or she did not intend

to provide or was not reasonably

capable of providing.’’.

The Commentary to § 2D1.1 captioned

‘‘Application Notes’’ is amended by

inserting the following additional note:

‘‘22. For purposes of the guidelines, a

‘plant’ is an organism having leaves and

a readily observable root formation (e.g.,

a marihuana cutting having roots, a

rootball, or root hairs is a marihuana

plant).’’.
25080 Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Notices

Reason for Amendment: This is a sixpart amendment. First, this amendment

adds definitions of hashish and hashish

oil to § 2D1.1 (Unlawful Manufacturing,

Importing, Exporting, or Trafficking;

Attempt or Conspiracy) in the notes

following the Drug Quantity Table.

Currently, these terms are not defined

by statute or in the guidelines, leading

to litigation as to which substances are

to be classified as hashish or hashish

oil, as opposed to marihuana. See

United States v. Gravelle, 819 F. Supp.

1076 (S.D. Fla. 1993); United States v.

Schultz, 810 F. Supp. 230 (S.D. Ohio

1992).

Second, this amendment clarifies the

treatment of marihuana that has a

moisture content sufficient to render it

unusable without drying (e.g., a bale of

marihuana left in the rain or recently

harvested marihuana that has not had

time to dry). In such cases, using the

weight of the wet marihuana can

increase the offense level for a factor

that bears no relationship to the scale of

the offense or the marketable form of the

marihuana. Prior to the effective date of

the 1993 amendments, two circuits had

approved weighing wet marihuana

despite the fact that the marihuana was

not in a usable form. United States v.

Pinedo-Montoya, 966 F.2d 591 (10th

Cir. 1992); United States v. Garcia, 925

F.2d 170 (7th Cir. 1991). Although

Application Note 1 in the Commentary

to § 2D1.1, effective November 1, 1993

(pertaining to unusable parts of a

mixture or substance) should produce

the appropriate result because

marihuana must be dried before being

used, this type of case is sufficiently

distinct to warrant a specific reference

in this application note to ensure correct

application of the guideline.

Third, this amendment addresses the

issue of what constitutes a marihuana

plant. Several circuits have confronted

the issue of when a cutting from a

marihuana plant becomes a ‘‘plant.’’

The appellate courts generally have held

that the term ‘‘plant’’ should be defined

by ‘‘its plain and ordinary dictionary

meaning * * *. [A] marihuana ‘plant’

includes those cuttings accompanied by

root balls.’’ United States v. Edge, 989

F.2d 871, 878 (6th Cir. 1993) (quoting

United States v. Eves, 932 F.2d 856, 860

(10th Cir. 1991), appeal after remand 30

F.3d 134 (6th Cir. 1994)). See also

United States v. Malbrough, 922 F.2d

458, 465 (8th Cir. 1990) (acquiescing in

the district court’s apparent

determination that certain marihuana

cuttings that did not have their own

‘‘root system’’ should not be counted as

plants), cert. denied, 501 S. Ct. 1258

(1991); United States v. Carlisle, 907

F.2d 94, 96 (9th Cir. 1990)(finding that

cuttings were plants where each cutting

had previous degrees of root formation

not clearly erroneous); United States v.

Angell, 794 F. Supp. 874, 875 (D. Minn.

1990) (refusing to count as plants

marihuana cuttings that have no visible

root structure), aff’d in part and rev’d in

part, 11 F.3d 806 (8th Cir.), cert. denied,

114 S. Ct. 3747 (1994); United States v.

Fitol, 733 F. Supp. 1312, 1316 (D. Minn.

1990) (‘‘individual cuttings, planted

with the intent of growing full size

plants, and which had grown roots, are

‘plants’ both within common parlance

and within Section 841(b)’’); United

States v. Speltz, 733 F. Supp. 1311, 1312

(D. Minn. 1990) (small marihuana

plants, e.g., cuttings with roots, are

nonetheless still marihuana plants),

aff’d. 938 F.2d 188 (8th Cir. 1991).

Because this issue arises frequently, this

amendment adds an application note to

the Commentary of § 2D1.1 setting forth

the definition of a plant for guidelines

purposes.

Fourth, this amendment provides

equivalencies for two additional

controlled substances: (1) Khat, and (2)

levo-alpha-acetylmethadol (LAAM) in

the Drug Equivalency Tables in the

Commentary to § 2D1.1.

Fifth, this amendment deletes the

distinction between d- and lmethamphetamine in the Drug

Equivalency Tables in the Commentary

to § 2D1.1. L-methamphetamine, which

is a rather weak form of

methamphetamine, is rarely seen and is

not made intentionally, but rather

results from a botched attempt to

produce d-methamphetamine. Under

this amendment, l-methamphetamine

would be treated the same as dmethamphetamine (i.e., as if an attempt

to manufacture or distribute dmethamphetamine). Currently, unless

the methamphetamine is specifically

tested to determine its form, litigation

can result over whether the

methamphetamine is lmethamphetamine or dmethamphetamine. In addition, there is

another form of methamphetamine (dlmethamphetamine) that is not listed in

the Drug Equivalency Table. The listing

of l-methamphetamine as a separate

form of methamphetamine has led to

litigation as to how dlmethamphetamine should be treated. In

United States v. Carroll, 6 F.3d 735

(11th Cir. 1993), cert. denied, 114 S. Ct.

1234 (1994), a case in which the

Eleventh Circuit held that dlmethamphetamine should be treated as

d-methamphetamine, the majority and

dissenting opinions both point out the

complexity engendered by the current

distinction between d- and lmethamphetamine. Under this

amendment, all forms of

methamphetamine are treated alike,

thereby simplifying guideline

application.

Sixth, this amendment revises the

Commentary to § 2D1.1 to provide that

in a case involving negotiation for a

quantity of a controlled substance, the

negotiated quantity is used to determine

the offense level unless the completed

transaction establishes a different

quantity, or the defendant establishes

that he or she was not reasonably

capable of producing the negotiated

amount or otherwise did not intend to

produce that amount. Disputes over the

interpretation of this application note

have produced much litigation. See,

e.g., United States v. Tillman, 8 F.3d 17

(11th Cir. 1993); United States v.

Smiley, 997 F.2d 475 (8th Cir. 1993);

United States v. Barnes, 993 F.2d 680

(9th Cir. 1993), cert. denied, 115 S. Ct.

96 (1994); United States v. Rodriguez,

975 F.2d 999 (3d Cir. 1992); United

States v. Christian, 942 F.2d 363 (6th

Cir. 1991), cert. denied, 502 U.S. 1045

(1992); United States v. Richardson, 939

F.2d 135 (4th Cir.), 502 U.S. 987 (1991);

United States v. Ruiz, 932 F.2d 1174

(7th Cir.), cert. denied, 502 U.S. 849

(1991); United States v. Bradley, 917

F.2d 601 (1st Cir. 1990).

11. Amendment: Section 2D1.11 and

the commentary thereto is amended by

deleting ‘‘listed precursor’’ wherever it

appears and inserting in lieu thereof

‘‘list I’’; by deleting ‘‘listed essential’’

wherever it appears and inserting in lieu

thereof ‘‘list II’’; and by deleting

‘‘Precursor Chemical Equivalency

Table’’ wherever it appears and

inserting in lieu thereof ‘‘List I Chemical

Equivalency Table’’.

Section 2D1.11(d) is amended by

deleting all lines referencing d-lysergic

acid.

The Chemical Quantity Table in

§ 2D1.11(d) is amended in subdivisions

(1)–(9) by adding the following list I

chemicals (formerly Listed Precursor

Chemicals) in the appropriate place in

alphabetical order by subdivision as

follows:

(1) ‘‘17.8 KG or more of Benzaldehyde;’’,

‘‘12.6 KG or more of Nitroethane;’’,

(2) ‘‘At least 5.3 KG but less than 17.8

KG of Benzaldehyde;’’,

‘‘At least 3.8 KG but less than 12.6 KG

of Nitroethane;’’,

(3) ‘‘At least 1.8 KG but less than 5.3 KG

of Benzaldehyde;’’,

‘‘At least 1.3 KG but less than 3.8 KG

of Nitroethane;’’,

(4) ‘‘At least 1.2 KG but less than 1.8 KG

of Benzaldehyde;’’,

‘‘At least 879 G but less than 1.3 KG

of Nitroethane;’’,
Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Notices 25081

(5) ‘‘At least 712 G but less than 1.2 KG

of Benzaldehyde;’’,

‘‘At least 503 G but less than 879 G

of Nitroethane;’’,

(6) ‘‘At least 178 G but less than 712 G

of Benzaldehyde;’’,

‘‘At least 126 G but less than 503 G

of Nitroethane;’’,

(7) ‘‘At least 142 G but less than 178 G

of Benzaldehyde;’’,

‘‘At least 100 G but less than 126 G

of Nitroethane;’’,

(8) ‘‘At least 107 G but less than 142 G

of Benzaldehyde;’’,

‘‘At least 75 G but less than 100 G of

Nitroethane;’’,

(9) ‘‘Less than 107 G of Benzaldehyde;’’,

‘‘Less than 75 G of Nitroethane;’’;

and by adding the following chemicals,

in the appropriate place in alphabetical

order, to the List I Chemical

Equivalency Table:

‘‘1 gm of Benzaldehyde** = 1.124 gm of

Ephedrine’’,

‘‘1 gm of Nitroethane** = 1.592 gm of

Ephedrine’’.

Section 2D1.11(d) is amended in the

notes following the Chemical Quantity

Table by deleting Note (A) and inserting

in lieu thereof:

‘‘(A) The List I Chemical Equivalency

Table provides a method for combining

different precursor chemicals to obtain

a single offense level. In a case

involving two or more list I chemicals

used to manufacture different controlled

substances or to manufacture one

controlled substance by different

manufacturing processes, convert each

to its ephedrine equivalency from the

table below, add the quantities, and use

the Chemical Quantity Table to

determine the base offense level. In a

case involving two or more list I

chemicals used together to manufacture

a controlled substance in the same

manufacturing process, use the quantity

of the single list I chemical that results

in the greatest base offense level.’’;

and by deleting the first paragraph of

Note D and inserting in lieu thereof:

‘‘In a case involving ephedrine tablets,

use the weight of the ephedrine

contained in the tablets, not the weight

of the entire tablets, in calculating the

base offense level.’’.

Section 2D1.11(d) is amended by

designating the List I Chemical

Equivalency Table (formerly the

Precursor Chemical Equivalency Table)

as Note ‘‘(E)’’.

Section 2D1.11(d) is amended in the

List I Chemical Equivalency Table

(formerly the Precursor Chemical

Equivalency Table) by inserting ‘‘**’’

immediately after each of the following

substances: Ethylamine, NMethylephedrine, NMethylpseudoephedrine,

Norpseudoephedrine,

Phenylpropanolamine,

Pseudoephedrine, and 3,4-

Methylenedioxyphenyl-2-propanone.

Section 2D1.11(d) is amended in the

note following the List I Chemical

Equivalency Table (formerly the

Precursor Chemical Equivalency Table)

designated by two asterisks by deleting

‘‘both hydriodic acid and ephedrine’’

and inserting in lieu thereof:

‘‘(A) hydriodic acid and one of the

following: ephedrine, Nmethylephedrine, Nmethylpseudoephedrine,

norpseudoephedrine,

phenylpropanolamine, or

pseudoephedrine; or (B) ethylamine and

3,4-methylenedioxyphenyl-2-

propanone; or (C) benzaldehyde and

nitroethane,’’.

The Commentary to § 2D1.11

captioned ‘‘Application Notes’’ is

amended in Note 3 by deleting ‘‘3, 4

methylenedioxphenyl-2-propanone’’

wherever it appears and inserting in lieu

thereof in each instance ‘‘methylamine’’.

The Commentary to § 2D1.11

captioned ‘‘Application Notes’’ is

amended by deleting Note 4 and

inserting in lieu thereof:

‘‘4. When two or more list I chemicals

are used together in the same

manufacturing process, calculate the

offense level for each separately and use

the quantity that results in the greatest

base offense level. In any other case, the

quantities should be added together

(using the List I Chemical Equivalency

Table) for the purpose of calculating the

base offense level.

Examples:

(a) The defendant was in possession

of five kilograms of ephedrine and three

kilograms of hydriodic acid. Ephedrine

and hydriodic acid typically are used

together in the same manufacturing

process to manufacture

methamphetamine. Therefore, the base

offense level for each listed chemical is

calculated separately and the list I

chemical with the higher base offense

level is used. Five kilograms of

ephedrine result in a base offense level

of 24; 300 grams of hydriodic acid result

in base offense level of 14. In this case,

the base offense level would be 24.

(b) The defendant was in possession

of five kilograms of ephedrine and two

kilograms of phenylacetic acid.

Although both of these chemicals are

used to manufacture methamphetamine,

they are not used together in the same

manufacturing process. Therefore, the

quantity of phenylacetic acid should be

converted to an ephedrine equivalency

using the List I Chemical Equivalency

Table and then added to the quantity of

ephedrine. In this case, the two

kilograms of phenylacetic acid convert

to two kilograms of ephedrine (see List

I Chemical Equivalency Table), resulting

in a total equivalency of seven

kilograms of ephedrine.’’.

The Commentary to § 2D1.11

captioned ‘‘Background’’ is amended in

the second sentence by deleting ‘‘Listed

precursor’’ and inserting in lieu thereof

‘‘List I’’; by deleting ‘‘critical to the

formation’’ and inserting in lieu thereof

‘‘important to the manufacture’’; and by

inserting ‘‘usually’’ immediately before

‘‘become’’.

The Commentary to § 2D1.11

captioned ‘‘Background’’ is amended in

the last sentence by deleting ‘‘Listed

essential’’ and inserting in lieu thereof

‘‘List II’’; by inserting ‘‘used as’’

immediately following ‘‘generally’’; and

by deleting ‘‘, and do not become part

of the finished product’’.

The Commentary to § 2D1.1 captioned

‘‘Application Notes’’ is amended by

deleting Note 14; and by renumbering

the remaining notes accordingly.

Reason for Amendment: The

Domestic Chemical Diversion Act of

1993, Public Law 103–200, 107 Stat.

2333, changed the designations of the

listed chemicals from ‘‘listed precursor

chemicals’’ and ‘‘listed essential

chemicals’’ to ‘‘list I chemicals’’ and

‘‘list II chemicals,’’ respectively. Section

2D1.11 (Unlawfully Distributing,

Importing, Exporting or Possessing a

Listed Chemical; Attempt or

Conspiracy) currently refers to ‘‘listed

precursor chemicals’’ and ‘‘listed

essential chemicals.’’ This amendment

conforms § 2D1.11 to these statutory

changes.

The Act also adds pills containing

ephedrine as a list I chemical.

Ephedrine itself is a list I chemical

under 21 U.S.C. 802(34). Pills

containing ephedrine previously were

not covered by the statute and thus

legally could be purchased ‘‘over the

counter.’’ Purchases of these pills were

sometimes made in large quantities and

the pills crushed and processed to

extract the ephedrine (which can be

used to make methamphetamine).

Unlike ephedrine, which is purchased

from a chemical company and is

virtually 100 percent pure, these tablets

contain a substantially lower percentage

of ephedrine (about 25 percent). To

avoid unwarranted disparity, this

amendment adds a note to § 2D1.11

providing that the amount of actual

ephedrine contained in a pill is to be

used in determining the offense level.

In addition, the Act removes three

chemicals from, and adds two others to,

the listed chemicals controlled under

the Controlled Substances Act. Two of
25082 Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Notices

the chemicals removed from the list are

not currently listed in § 2D1.11 because

the Commission was aware that they are

not used in the manufacture of any

controlled substance. The third

chemical removed from the list, dlysergic acid, was listed both as a listed

chemical in § 2D1.11 and as a controlled

substance in § 2D1.1. This amendment

conforms § 2D1.11 by deleting all

references to d-lysergic acid. The two

chemicals added as listed chemicals are

benzaldehyde and nitroethane. Both of

these chemicals are used to make

methamphetamine. The base offense

levels for listed chemicals in § 2D1.11

are determined by reference to the most

common controlled substance the

chemical is used to manufacture;

consequently, this amendment adds

these chemicals to the Chemical

Quantity Table based on information

provided by the Drug Enforcement

Administration regarding their use in

the production of methamphetamine.

A number of the chemicals in the

Chemical Quantity Table are used in the

same process to make a controlled

substance. Currently, a note at the end

of the Precursor Chemical Equivalency

Table addresses this situation for

hydriodic acid and ephedrine. This

amendment expands this note to cover

other chemicals that similarly are used

together.

Finally, the amendment corrects the

Commentary to § 2D1.11 with respect to

an example of a listed chemical that is

used with P2P to manufacture

methamphetamine.

12. Amendment: Section 2D1.12(a) is

amended by inserting ‘‘(Apply the

greater)’’ immediately after ‘‘Base

Offense Level’’; and by deleting ‘‘12’’

and inserting in lieu thereof:

‘‘(1) 12, if the defendant intended to

manufacture a controlled substance or

knew or believed the prohibited

equipment was to be used to

manufacture a controlled substance; or

(2) 9, if the defendant had reasonable

cause to believe the prohibited

equipment was to be used to

manufacture a controlled substance.’’.

Reason for Amendment: The

Domestic Chemical Diversion Act of

1993, Public Law 103–200, 107 Stat.

2333, broadens the prohibition in 21

U.S.C. 843(a) to cover possessing,

manufacturing, distributing, exporting,

or importing three-neck, round-bottom

flasks, tableting machines,

encapsulating machines, or gelatin

capsules having reasonable cause to

believe they will be used to manufacture

a controlled substance. Section 2D1.12

(Unlawful Possession, Manufacture,

Distribution, or Importation of

Prohibited Flask or Equipment; Attempt

or Conspiracy) applies to this conduct.

Consistent with the treatment of similar

conduct under §§ 2D1.11(b)(2) and

2D1.13(b)(2), this amendment provides

an alternative base offense level in

§ 2D1.12 to address the case in which

the defendant had reasonable cause to

believe, but not actual knowledge or

belief, that the equipment was to be

used to manufacture a controlled

substance.

13. Amendment: The Introductory

Commentary to Chapter Two, Part H,

Subpart I, and §§ 2H1.1, 2H1.3, 2H1.4,

and 2H1.5 are deleted and the following

inserted in lieu thereof:

‘‘§ 2H1.1. Offenses Involving

Individual Rights

(a) Base Offense Level (Apply the

greatest):

(1) the offense level from the offense

guideline applicable to any underlying

offense;

(2) 12, if the offense involved two or

more participants;

(3) 10, if the offense involved (A) the

use or threat of force against a person;

or (B) property damage or the threat of

property damage; or

(4) 6, otherwise.

(b) Specific Offense Characteristics

(1) If (A) the defendant was a public

official at the time of the offense; or (B)

the offense was committed under color

of law, increase by 6 levels.

Commentary

Statutory Provisions: 18 U.S.C. 241,

242, 245(b), 246, 247, 248, 1091; 42

U.S.C. 3631.

Application Notes

1. ‘Offense guideline applicable to any

underlying offense’ means the offense

guideline applicable to any conduct

established by the offense of conviction

that constitutes an offense under

federal, state, or local law (other than an

offense that is itself covered under

Chapter Two, Part H, Subpart 1).

In certain cases, conduct set forth in

the count of conviction may constitute

more than one underlying offense (e.g.,

two instances of assault, or one instance

of assault and one instance of arson). In

such cases, determine the number and

nature of underlying offenses by

applying the procedure set forth in

Application Note 5 of § 1B1.2

(Applicable Guidelines). If the Chapter

Two offense level for any of the

underlying offenses under subsection

(a)(1) is the same as, or greater than, the

alternative base offense level under

subsection (a)(2), (3), or (4), as

applicable, use subsection (a)(1) and

treat each underlying offense as if

contained in a separate count of

conviction. Otherwise, use subsection

(a)(2), (3), or (4), as applicable, to

determine the base offense level.

2. ‘Participant’ is defined in the

Commentary to § 3B1.1 (Aggravating

Role).

3. The burning or defacement of a

religious symbol with an intent to

intimidate shall be deemed to involve

the threat of force against a person for

the purposes of subsection (a)(3)(A).

4. If the finder of fact at trial or, in the

case of a plea of guilty or nolo

contendere, the court at sentencing

determines beyond a reasonable doubt

that the defendant intentionally selected

any victim or any property as the object

of the offense because of the actual or

perceived race, color, religion, national

origin, ethnicity, gender, disability, or

sexual orientation of any person, an

additional 3-level enhancement from

§ 3A1.1(a) will apply.

5. If subsection (b)(1) applies, do not

apply § 3B1.3 (Abuse of Position of

Trust or Use of Special Skill).’’.

Section 3A1.1 is deleted and the

following inserted in lieu thereof:

‘‘§ 3A1.1. Hate Crime Motivation or

Vulnerable Victim

(a) If the finder of fact at trial or, in

the case of a plea of guilty or nolo

contendere, the court at sentencing

determines beyond a reasonable doubt

that the defendant intentionally selected

any victim or any property as the object

of the offense because of the actual or

perceived race, color, religion, national

origin, ethnicity, gender, disability, or

sexual orientation of any person,

increase by 3 levels.

(b) If the defendant knew or should

have known that a victim of the offense

was unusually vulnerable due to age,

physical or mental condition, or that a

victim was otherwise particularly

susceptible to the criminal conduct,

increase by 2 levels.

(c) Special Instruction

(1) Subsection (a) shall not apply if an

adjustment from § 2H1.1(b)(1) applies.

Commentary

Application Notes

1. Subsection (a) applies to offenses

that are hate crimes. Note that special

evidentiary requirements govern the

application of this subsection.

Do not apply subsection (a) on the

basis of gender in the case of a sexual

offense. In such cases, this factor is

taken into account by the offense level

of the Chapter Two offense guideline.

2. Subsection (b) applies to offenses

involving an unusually vulnerable

victim in which the defendant knows or

should have known of the victim’s

unusual vulnerability. The adjustment

would apply, for example, in a fraud
Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Notices 25083

case where the defendant marketed an

ineffective cancer cure or in a robbery

where the defendant selected a

handicapped victim. But it would not

apply in a case where the defendant

sold fraudulent securities by mail to the

general public and one of the victims

happened to be senile. Similarly, for

example, a bank teller is not an

unusually vulnerable victim solely by

virtue of the teller’s position in a bank.

Do not apply subsection (b) if the

offense guideline specifically

incorporates this factor. For example, if

the offense guideline provides an

enhancement for the age of the victim,

this subsection should not be applied

unless the victim was unusually

vulnerable for reasons unrelated to age.

3. The adjustments from subsections

(a) and (b) are to be applied

cumulatively. Do not, however, apply

subsection (b) in a case in which

subsection (a) applies unless a victim of

the offense was unusually vulnerable for

reasons unrelated to race, color,

religion, national origin, ethnicity,

gender, disability, or sexual orientation.

4. If an enhancement from subsection

(b) applies and the defendant’s criminal

history includes a prior sentence for an

offense that involved the selection of a

vulnerable victim, an upward departure

may be warranted.

Background: Subsection (a) reflects

the directive to the Commission,

contained in Section 280003 of the

Violent Crime Control and Law

Enforcement Act of 1994, to provide an

enhancement of not less than three

levels for an offense when the finder of

fact at trial determines beyond a

reasonable doubt that the defendant had

a hate crime motivation (i.e., a primary

motivation for the offense was the race,

color, religion, national origin,

ethnicity, gender, disability, or sexual

orientation of the victim). To avoid

unwarranted sentencing disparity based

on the method of conviction, the

Commission has broadened the

application of this enhancement to

include offenses that, in the case of a

plea of guilty or nolo contendere, the

court at sentencing determines are hate

crimes.’’.

The Commentary to § 1B1.5 captioned

‘‘Application Notes’’ is amended in

Note 1 by deleting ‘‘2H1.1(a)(2)’’ and

inserting in lieu thereof ‘‘2H1.1(a)(1)’’.

The Commentary to § 2H4.1 captioned

‘‘Application Note’’ is amended in Note

1 by deleting ‘‘2 plus the offense’’ and

inserting in lieu thereof ‘‘Offense’’.

Section 3D1.2(d) is amended in the

third paragraph by deleting ‘‘2H1.2,

2H1.3, 2H1.4,’’.

Reason for Amendment: This is a fivepart amendment. First, the amendment

adds an additional subsection to § 3A1.1

(Vulnerable Victim) to implement the

directive contained in Section 280003 of

the Violent Crime Control and Law

Enforcement Act of 1994 by providing a

three-level increase in the offense level

for offenses that are ‘‘hate crimes.’’

Second, the amendment consolidates

§§ 2H1.1, 2H1.3, 2H1.4, and 2H1.5, and

adjusts the offense levels in these

guidelines to harmonize them with each

other, reflect the additional

enhancement now contained in § 3A1.1,

and better reflect the seriousness of the

underlying conduct. Third, the

amendment references violations of 18

U.S.C. 248 (the Freedom of Access to

Clinic Entrances Act of 1994, Public

Law 103–259, 108 Stat. 694) to the

consolidated § 2H1.1. Fourth, the

amendment clarifies the operation of

§ 3A1.1 with respect to a vulnerable

victim. Fifth, the amendment addresses

the directive to the Commission in

section 240002 of the Violent Crime

Control and Law Enforcement Act of

1994 (pertaining to elderly victims of

crimes of violence).

Section 280003 of the Violent Crime

Control and Law Enforcement Act of

1994 directs the Commission to provide

a minimum enhancement of three levels

for offenses that the finder of fact at trial

determines are hate crimes. This

directive also instructs the Commission

to ensure that there is reasonable

consistency with other guidelines and

that duplicative punishments for the

same offense are avoided. The

congressional directive in section

280003 requires that the three-level hate

crimes enhancement apply where ‘‘the

finder of fact at trial determines beyond

a reasonable doubt’’ that the offense of

conviction was a hate crime. This

amendment makes the enhancement

applicable if either the finder of fact at

trial or, in the case of a guilty or nolo

contendere plea, the court at sentencing

determines that the offense was a hate

crime. By broadening the applicability

of the congressionally mandated

enhancement, this amendment will

avoid unwarranted sentencing disparity

based on the mode of conviction. The

Commission’s general guideline

promulgation authority, see 28 U.S.C.

994, permits such a broadening of the

enhancement.

The addition of a generally applicable

Chapter Three hate crimes enhancement

requires amendment of the civil rights

offense guidelines to avoid duplicative

punishments. In addition, to further the

Commission’s goal of simplifying the

operation of the guidelines, the

proposed amendment consolidates the

four current civil rights offense

guidelines into one guideline and

adjusts these guidelines to take into

account the new enhancement under

§ 3A1.1(a).

The Freedom of Access to Clinic

Entrances Act of 1994 makes it a crime

to interfere with access to reproductive

services or to interfere with certain

religious activities. This Act

criminalizes a broad array of conduct,

from non-violent obstruction of the

entrance to a clinic to murder. The

amendment treats these violations in the

same way as other offenses involving

individual rights.

Section 240002 of the Violent Crime

Control and Law Enforcement Act of

1994 directs the Commission to ensure

that the guidelines provide sufficiently

stringent penalties for crimes of

violence against elderly victims. Upon

review of the guidelines, the

Commission determined that the

penalties currently provided generally

appear appropriate; however, this

amendment strengthens the

Commentary to § 3A1.1 in one area by

expressly providing a basis for an

upward departure if both the current

offense and a prior offense involved a

vulnerable victim (including an elderly

victim), regardless of the type of offense.

Finally, Section 250003 of the Violent

Control and Law Enforcement Act of

1994 directs the Commission to review,

and if necessary, amend the sentencing

guidelines to ensure that victim-related

adjustments for fraud offenses against

older victims are adequate. Section

250003 also directs the Commission to

study and report to the Congress on this

issue. See Report to Congress: Adequacy

of Penalties for Fraud Offenses

Involving Elderly Victims (March 13,

1995). Although the Commission found

that the current guidelines generally

provided adequate penalties in these

cases, it noted some inconsistency in

the application of § 3A1.1 regarding

whether this adjustment required proof

that the defendant had ‘‘targeted the

victim on account of the victim’s

vulnerability.’’ This amendment revises

the Commentary of § 3A1.1 to clarify

application with respect to this issue.

14. Amendment: Section 2K2.1(a)(1)

is amended by deleting: ‘‘defendant had

at least two prior felony convictions of

either a crime of violence or a controlled

substance offense, and the instant

offense involved a firearm listed in 26

U.S.C. 5845(a)’’,

and inserting in lieu thereof:

‘‘offense involved a firearm described

in 26 U.S.C 5845(a) or 18 U.S.C.

921(a)(30), and the defendant had at

least two prior felony convictions of

either a crime of violence or a controlled

substance offense’’.
25084 Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Notices

Section 2K2.1(a)(3) is amended by

deleting:

‘‘defendant had one prior felony

conviction of either a crime of violence

or a controlled substance offense, and

the instant offense involved a firearm

listed in 26 U.S.C. 5845(a)’’,

and inserting in lieu thereof:

‘‘offense involved a firearm described

in 26 U.S.C 5845(a) or 18 U.S.C.

921(a)(30), and the defendant had one

prior conviction of either a crime of

violence or controlled substance

offense’’.

Section 2K2.1(a)(4)(B) is amended by

deleting ‘‘listed in 26 U.S.C. 5845(a)’’

and inserting in lieu thereof ‘‘described

in 26 U.S.C 5845(a) or 18 U.S.C.

921(a)(30)’’.

Section 2K2.1(a)(5) is amended by

deleting ‘‘listed in 26 U.S.C. 5845(a)’’

and inserting in lieu thereof ‘‘described

in 26 U.S.C 5845(a) or 18 U.S.C.

921(a)(30)’’.

Section 2K2.1(a)(8) is amended by

deleting ‘‘or (m)’’ and by inserting in

lieu thereof ‘‘(m),(s),(t), or (x)(1)’’.

The Commentary to § 2K2.1 captioned

‘‘Statutory Provisions’’ is amended by

inserting ‘‘–(w), (x)(1)’’ immediately

following ‘‘(r)’’, and by inserting ‘‘, (h),

(j)–(n)’’ immediately following ‘‘(g)’’.

The Commentary to § 2K2.1 captioned

‘‘Application Notes’’ is amended by

deleting Note 3 and inserting in lieu

thereof:

‘‘3. A ‘firearm described in 26 U.S.C.

5845(a)’ includes: (i) A shotgun having

a barrel or barrels of less than 18 inches

in length; a weapon made from a

shotgun if such weapon as modified has

an overall length of less than 26 inches

or a barrel or barrels of less than 18

inches in length; a rifle having a barrel

or barrels of less than 16 inches in

length; or a weapon made from a rifle

if such weapon as modified has an

overall length of less than 26 inches or

a barrel or barrels of less than 16 inches

in length; (ii) a machinegun; (iii) a

silencer; (iv) a destructive device; and

(v) certain unusual weapons defined in

26 U.S.C. 5845(e) (that are not

conventional, unaltered handguns,

rifles, or shotguns). For a more detailed

definition, refer to 26 U.S.C. 5845.

A ‘firearm described in 18 U.S.C.

921(a)(30)’ (pertaining to semiautomatic

assault weapons) does not include a

weapon exempted under the provisions

of 18 U.S.C. 922(v)(3).’’.

The Commentary to § 2K2.1 captioned

‘‘Application Notes’’ is amended in

Note 6 by deleting ‘‘or (v)’’ and inserting

‘‘(v)’’ in lieu thereof; and by inserting ‘‘;

or (vi) is subject to a court order that

restrains such person from harassing,

stalking, or threatening an intimate

partner of such person or child of such

intimate partner or person, or engaging

in other conduct that would place an

intimate partner in reasonable fear of

bodily injury to the partner or child as

defined in 18 U.S.C. 922(d)(8)’’

immediately following ‘‘States’’.

The Commentary to § 2K2.1 captioned

‘‘Application Notes’’ is amended by

deleting Note 12 and inserting in lieu

thereof:

‘‘12. If the only offense to which

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

or (u), 18 U.S.C. 924 (j) or (k), or 26

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

a stolen firearm or ammunition) and the

base offense level is determined under

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

adjustment in subsection (b)(4) unless

the offense involved a firearm with an

altered or obliterated serial number.

This is because the base offense level

takes into account that the firearm or

ammunition was stolen.

Similarly, if the only offense to which

§ 2K2.1 applies is 18 U.S.C. 922(k)

(offenses involving an altered or

obliterated serial number) and the base

offense level is determined under

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

adjustment in subsection (b)(4) unless

the offense involved a stolen firearm or

ammunition. This is because the base

offense level takes into account that the

firearm had an altered or obliterated

serial number.’’.

Reason for Amendment: This is a fivepart amendment. First, the amendment

revises § 2K2.1 (Unlawful Receipt,

Possession, or Transportation of

Firearms or Ammunition; Prohibited

Transactions Involving Firearms or

Ammunition) to provide increased

offense levels for possession of a

semiautomatic assault weapon that

correspond to those currently provided

for possession of machineguns and

other firearms described in 26 U.S.C.

5845(a). Second, the amendment

addresses section 110201 of the Violent

Crime Control Law Enforcement Act of

1994 by providing an offense level of six

for the misdemeanor portion of 18

U.S.C. 922(x)(1) (involving sale or

transfer of a handgun or ammunition to

a juvenile). For an offense under the

felony portion of 18 U.S.C. 922(x)(1)

(involving the sale or transfer of a

handgun or handgun ammunition to a

juvenile knowing or having reasonable

cause to believe that the handgun or

ammunition was intended to be used in

a crime), the enhancement in subsection

(b)(5) will provide a minimum offense

level of 18. Third, the amendment

addresses section 110401 of the Violent

Crime Control and Law Enforcement

Act of 1994 by adding to the definition

of a ‘‘prohibited person’’ in § 2K2.1 a

person under the court order described

in that crime bill section. Fourth, the

amendment provides an offense level of

six for the misdemeanors set forth in 18

U.S.C. 922 (s) and (t) (involving

violations of the Brady Act). Fifth, the

amendment clarifies that Application

Note 6 in § 2K2.1 applies only to cases

in which the base offense level is

determined under § 2K2.1(a)(7).

15. Amendment: The Commentary to

§ 2L1.2 captioned ‘‘Application Notes’’

is amended in Note 2 by deleting:

‘‘a sentence at or near the maximum

of the applicable guideline range may be

warranted’’,

and inserting in lieu thereof:

‘‘an upward departure may be

warranted. See § 4A1.3 (Adequacy of

Criminal History Category)’’.

Reason for Amendment: This

amendment revises § 2L1.2 (Unlawfully

Entering or Remaining in the United

States) to authorize the court to consider

an upward departure in the case of a

defendant with repeated prior instances

of deportation not resulting in a

criminal conviction.

16. Amendment: Section 2L2.1(b)(2)

is amended by deleting ‘‘sets of’’, and by

deleting ‘‘Sets of’’.

Section 2L2.1(b) is amended by

inserting the following additional

subdivision:

‘‘(3) If the defendant knew, believed,

or had reason to believe that a passport

or visa was to be used to facilitate the

commission of a felony offense, other

than an offense involving violation of

the immigration laws, increase by 4

levels.’’.

The Commentary to § 2L2.1 captioned

‘‘Application Notes’’ is amended in

Note 2 by inserting ‘‘of documents’’

immediately before ‘‘intended’’; and by

deleting ‘‘documents as one set’’ and

inserting in lieu thereof ‘‘set as one

document’’.

The Commentary to § 2L2.1 captioned

‘‘Application Notes’’ is amended by

inserting the following additional note:

‘‘3. Subsection (b)(3) provides an

enhancement if the defendant knew,

believed, or had reason to believe that

a passport or visa was to be used to

facilitate the commission of a felony

offense, other than an offense involving

violation of the immigration laws. If the

defendant knew, believed, or had reason

to believe that the felony offense to be

committed was of an especially serious

type, an upward departure may be

warranted.’’.

Section 2L2.2 is amended by inserting

the following additional subsection:

‘‘(c) Cross Reference

(1) If the defendant used a passport or

visa in the commission or attempted
Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Notices 25085

commission of a felony offense, other

than an offense involving violation of

the immigration laws, apply—

(A) § 2X1.1 (Attempt, Solicitation, or

Conspiracy) in respect to that felony

offense, if the resulting offense level is

greater than that determined above; or

(B) if death resulted, the most

analogous offense guideline from

Chapter Two, Part A, Subpart 1

(Homicide), if the resulting offense level

is greater than that determined above.’’.

Reason for Amendment: This is a

three-part amendment. First, this

amendment provides an enhancement

in § 2L2.1 (Trafficking in a Document

Relating to Naturalization, Citizenship,

or Legal Resident Status, or a United

States Passport; False Statement in

Respect to the Citizenship or

Immigration Status of Another;

Fraudulent Marriage to Assist Alien to

Evade Immigration Law) if the

defendant trafficked in a passport or

visa knowing, believing, or having

reason to believe that the passport or

visa was to be used to facilitate the

commission of a felony offense, other

than an offense involving violation of

the immigration laws. Second, this

amendment corrects a technical error in

§ 2L2.1(b)(2). Third, this amendment

adds a cross reference to § 2L2.2

(Fraudulently Acquiring Documents

Relating to Naturalization, Citizenship,

or Legal Resident Status for Own Use;

False Personation or Fraudulent

Marriage by Alien to Evade Immigration

Law; Fraudulently Acquiring or

Improperly Using a United States

Passport) that addresses the case of a

defendant who uses a passport or visa

in the commission or attempted

commission of a felony offense, other

than an offense involving violation of

the immigration laws.

17. Amendment: Section 2P1.2(a)(2) is

amended by inserting

‘‘methamphetamine,’’ immediately

following ‘‘PCP,’’.

Section 2P1.2(a)(3) is amended by

inserting ‘‘methamphetamine,’’

immediately following ‘‘PCP,’’.

Section 2P1.2 is amended by deleting

subsection (c)(1) and inserting in lieu

thereof:

‘‘(1) If the object of the offense was the

distribution of a controlled substance,

apply the offense level from § 2D1.1

(Unlawful Manufacturing, Importing,

Exporting, or Trafficking; Attempt or

Conspiracy). Provided, that if the

defendant is convicted under 18 U.S.C.

1791(a)(1) and is punishable under 18

U.S.C. 1791(b)(1), and the resulting

offense level is less than level 26,

increase to level 26.’’.

Reason for Amendment: This

amendment conforms the offense level

for methamphetamine offenses in a

correctional or detention facility to that

of other controlled substance offenses

committed in a correctional or detention

facility that have the same statutory

maximum penalty. This change reflects

the increase in the maximum penalty for

methamphetamine offenses in section

90101 of the Violent Crime Control and

Law Enforcement Act of 1994. In

addition, the amendment expands the

cross reference in subsection (c)(1) to

cover distribution of all controlled

substances in a correctional or detention

facility.

18. Amendment: Sections 2S1.1 and

2S1.2 are deleted and the following

inserted in lieu thereof:

‘‘§ 2S1.1. Laundering of Monetary

Instruments; Engaging in Monetary

Transactions in Property Derived from

Unlawful Activity

(a) Base Offense Level (Apply the

greatest):

(1) The offense level for the

underlying offense from which the

funds were derived, if the defendant

committed the underlying offense (or

otherwise would be accountable for the

commission of the underlying offense

under § 1B1.3 (Relevant Conduct)) and

the offense level for that offense can be

determined; or

(2) 12 plus the number of offense

levels from the table in § 2F1.1 (Fraud

and Deceit) corresponding to the value

of the funds, if the defendant knew or

believed that the funds were the

proceeds of, or were to be used to

promote, an offense involving the

manufacture, importation, or

distribution of controlled substances or

listed chemicals; a crime of violence; or

an offense involving firearms or

explosives, national security, or

international terrorism; or

(3) 8 plus the number of offense levels

from the table in § 2F1.1 (Fraud and

Deceit) corresponding to the value of the

funds.

(b) Specific Offense Characteristics

(1) If the defendant knew or believed

that (A) the financial or monetary

transactions, transfers, transportation, or

transmissions were designed in whole

or in part to conceal or disguise the

proceeds of criminal conduct, or (B) the

funds were to be used to promote

further criminal conduct, increase by 2

levels.

(2) If subsection (b)(1)(A) is applicable

and the offense (A) involved placement

of funds into, or movement of funds

through or from, a company or financial

institution outside the United States, or

(B) otherwise involved a sophisticated

form of money laundering, increase by

2 levels.

Commentary

Statutory Provisions: 18 U.S.C. 1956,

1957.

Application Notes

1. ‘Value of the funds’ means the

value of the funds or property involved

in the financial or monetary

transactions, transportation, transfers, or

transmissions that the defendant knew

or believed (A) were criminally derived

funds or property, or (B) were to be used

to promote criminal conduct.

When a financial or monetary

transaction, transfer, transportation, or

transmission involves legitimately

derived funds that have been

commingled with criminally derived

funds, the value of the funds is the

amount of the criminally derived funds,

not the total amount of the commingled

funds. For example, if the defendant

deposited $50,000 derived from a bribe

together with $25,000 of legitimately

derived funds, the value of the funds is

$50,000, not $75,000.

Criminally derived funds are any

funds that are derived from a criminal

offense; e.g., in a drug trafficking

offense, the total proceeds of the offense

are criminally derived funds. In a case

involving fraud, however, the loss

attributable to the offense occasionally

may be considerably less than the value

of the criminally derived funds (e.g., the

defendant fraudulently sells stock for

$200,000 that is worth $120,000 and

deposits the $200,000 in a bank; the

value of the criminally derived funds is

$200,000, but the loss is $80,000). If the

defendant is able to establish that the

loss, as defined in § 2F1.1 (Fraud and

Deceit), was less than the value of the

funds (or property) involved in the

financial or monetary transactions,

transfers, transportation, or

transmissions, the loss from the offense

shall be used as the ‘‘value of the

funds.’’

2. If the defendant is to be sentenced

both on a count for an offense from

which the funds were derived and on a

count under this guideline, the counts

will be grouped together under

subsection (c) of § 3D1.2 (Groups of

Closely-Related Counts).

3. Subsection (b)(1)(A) provides an

increase for those cases that involve

efforts to make criminally derived funds

appear to have a legitimate source. This

subsection will apply, for example,

when the defendant conducted a

transaction through a straw party or a

front company, concealed a moneylaundering transaction in a legitimate

business, or used an alias or otherwise

provided false information to disguise

the true source or ownership of the

funds.
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4. In order for subsection (b)(1)(B) to

apply, the defendant must have known

or believed that the funds would be

used to promote further criminal

conduct, i.e., criminal conduct beyond

the underlying criminal conduct from

which the funds were derived.

5. Subsection (b)(2) provides an

additional increase for those money

laundering cases that are more difficult

to detect because sophisticated steps

were taken to conceal the origin of the

money. Subsection (b)(2)(B) will apply,

for example, if the offense involved the

‘‘layering’’ of transactions, i.e., the

creation of two or more levels of

transactions that were intended to

appear legitimate.

Background: The statutes covered by

this guideline were enacted as part of

the Anti-Drug Abuse Act of 1986. These

statutes cover a wide range of conduct.

For example, they apply to large-scale

operations that engage in international

laundering of illegal drug proceeds.

They also apply to a defendant who

deposits $11,000 of fraudulently

obtained funds in a bank. In order to

achieve proportionality in sentencing,

this guideline generally starts from a

base offense level equivalent to that

which would apply to the specified

unlawful activity from which the funds

were derived. The specific offense

characteristics provide enhancements

‘‘if the offense was designed to conceal

or disguise the proceeds of criminal

conduct and if the offense involved

sophisticated money laundering.’’.

Section 3D1.2(d) is amended in the

second paragraph by deleting ‘‘2S1.2,’’.

Section 8C2.1(a) is amended by

deleting ‘‘2S1.2,’’.

The Commentary to § 8C2.4 captioned

‘‘Application Notes’’ is amended in

Note 5 by deleting ‘‘§ 2S1.1 (Laundering

of Monetary Instruments); § 2S1.2

(Engaging in Monetary Transactions in

Property Derived from Specified

Unlawful Activity); and § 2S1.3

(Structuring Transactions to Evade

Reporting Requirements; Failure to

Report Cash or Monetary Transactions;

Failure to File Currency and Monetary

Instrument Report; Knowingly Filing

False Reports)’’; and by inserting ‘‘or’’

immediately before ‘‘§ 2R1.1’’.

Appendix A (Statutory Index) is

amended in the line reference to 18

U.S.C. 1957 by deleting ‘‘2S1.2’’ and

inserting in lieu thereof ‘‘2S1.1’’.

Reason for Amendment: This revises

and consolidates §§ 21/1 and 2S1.2 to

simplify application and better assure

that the offense levels comport with the

relative seriousness of the offense

conduct. When the Commission

originally promulgated §§ 2S1.1 and

2S1.2 to govern sentencing for the

money laundering and monetary

transaction offenses found at 18 U.S.C.

1956 and 1957, these statutes were

relatively new and, therefore, the

Commission had little case experience

upon which to base the guidelines.

Since then, courts have construed the

elements of these offenses broadly. As a

result, the Commission has found that

§§ 2S1.1 and 2S1.2 do not adequately

distinguish the varying degrees of

offense conduct that are sentenced

under these guidelines.

This amendment responds to

concerns about the operation of these

guidelines by tying the base offense

levels of the revised guideline more

closely to the underlying conduct that

was the source of the illegal proceeds.

If the defendant committed the

underlying offense and the offense level

can be determined, subsection (a)(1)

provides a base offense level equal to

that for the underlying offense. In other

instances, the base offense level is keyed

to the value of funds involved. The

amendment uses specific offense

characteristics to assure greater

punishment when the defendant knew

or believed that the transactions were

designed to conceal the criminal nature

of the proceeds or when the funds were

to be used to promote further criminal

activity. An additional increase is

provided under subsection (b)(2) if

sophisticated efforts at concealment

were involved.

Subsections (a)(2) and (a)(3) provide

‘‘fallback’’ offense levels that will apply

primarily in cases in which the offense

level for the underlying conduct cannot

be determined. Subsection (a)(3)

provides an offense level of eight plus

the offense level from the table in

§ 2F1.1 (Fraud and Deceit). This offense

level generally corresponds to the

offense level for fraud and theft offenses

with more than minimal planning.

Subsection (a)(2) provides an offense

level of 12 plus the offense level from

the table in § 2F1.1 for cases in which

the defendant knew or believed the

funds were derived from, or were to be

used to further, certain serious offenses

(e.g., drug trafficking offenses). This

approach is consistent with the current

guideline structure, which generally

treats such offenses as at least four

levels more serious than typical

economic offenses (e.g., fraud).

19. Amendment: Chapter Three, Part

A, is amended by inserting the

following additional section:

‘‘§ 3A1.4. International Terrorism

(a) If the offense is a felony that

involved, or was intended to promote,

international terrorism, increase by 12

levels; but if the resulting offense level

is less than level 32, increase to level 32.

(b) In each such case, the defendant’s

criminal history category from Chapter

Four (Criminal History and Criminal

Livelihood) shall be Category VI.

Commentary

Application Notes

1. Subsection (a) increases the offense

level if the offense involved, or was

intended to promote, international

terrorism. ‘International terrorism’ is

defined at 18 U.S.C. 2331.

2. Under subsection (b), if the

defendant’s criminal history category as

determined under Chapter Four

(Criminal History and Criminal

Livelihood) is less than Category VI, it

shall be increased to Category VI.’’.

Section 5K2.15 is deleted.

Reason for Amendment: Section

120004 of the Violent Crime Control and

Law Enforcement Act of 1994 directs

the Commission to provide an

appropriate enhancement for any felony

that involves or is intended to promote

international terrorism. The amendment

addresses this directive by adding a

Chapter Three enhancement at § 3A1.4

(Terrorism) in place of the current

upward departure provision at § 5K2.15

(Terrorism).

20. Amendment: Section 3B1.4 is

deleted and the following inserted in

lieu thereof:

‘‘§ 3B1.4. Using a Minor To Commit a

Crime

If the defendant used or attempted to

use a person less than eighteen years of

age to commit the offense or assist in

avoiding detection of, or apprehension

for, the offense, increase by 2 levels.

Commentary

Application Note

1. ‘Used or attempted to use’ includes

directing, commanding, encouraging,

intimidating, counseling, training,

processing, recruiting, or soliciting.

2. Do not apply this adjustment if the

Chapter Two offense guideline

incorporates this factor.

3. If the defendant used or attempted

to use more than one person less than

eighteen years of age, an upward

departure may be warranted.’’.

Reason for Amendment: This

amendment implements the directive in

Section 140008 of the Violent Crime

Control and Law Enforcement Act of

1994 (pertaining to the use of a minor

in the commission of an offense) in a

slightly broader form.

21. Amendment: The Commentary to

§ 4B1.1 captioned ‘‘Background’’ is

amended by deleting the text and

inserting in lieu thereof:

‘‘Section 994(h) of title 28, United

States Code, mandates that the
Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Notices 25087

Commission assure that certain ‘career’

offenders receive a sentence of

imprisonment ‘at or near the maximum

term authorized.’ Section 4B1.1

implements this directive, with the

definition of a career offender tracking

in large part the criteria set forth in 28

U.S.C. 994(h). However, in accord with

its general guideline promulgation

authority under 28 U.S.C. 994(a)–(f),

and its amendment authority under 28

U.S.C. 994 (o) and (p), the Commission

has modified this definition in several

respects to focus more precisely on the

class of recidivist offenders for whom a

lengthy term of imprisonment is

appropriate and avoid ‘unwarranted

sentencing disparities among

defendants with similar records who

have been found guilty of similar

criminal conduct * * * ’ 28 U.S.C.

991(b)(1)(B). The Commission’s

refinement of this definition over time

is consistent with Congress’ choice of a

directive to the Commission rather than

a mandatory minimum sentencing

statute (‘The [Senate Judiciary]

Committee believes that such a directive

to the Commission will be more

effective; the guidelines development

process can assure consistent and

rational implementation for the

Committee’s view that substantial

prison terms should be imposed on

repeat violent offenders and repeat drug

traffickers.’ S. Rep. No. 225, 98th Cong.,

1st Sess. 175 (1983)).

The legislative history of this

provision suggests that the phrase

‘maximum term authorized’ should be

construed as the maximum term

authorized by statute. See S. Rep. No.

225, 98th Cong., 1st Sess. 175 (1983),

128 Cong. Rec. 26, 511–12 (1982) (text

of ‘Career Criminals’ amendment by

Senator Kennedy) id. at 26, 515 (brief

summary of amendment) id. at 26, 517–

18 (statement of Senator Kennedy).’’.

Application Note 1 of the

Commentary to § 4B1.2 is

repromulgated without change.

Reason for Amendment: This

amendment inserts additional

background commentary explaining the

Commission’s rationale and authority

for § 4B1.1 (Career Offender). The

amendment responds to a decision by

the United States Court of Appeals for

the District of Columbia Circuit in

United States v. Price, 990 F.2d 1367

(D.C. Cir. 1993). In Price, the court

invalidated application of the career

offender guideline to a defendant

convicted of a drug conspiracy because

28 U.S.C. 994(h), which the Commission

cites as the mandating authority for the

career offender guideline, does not

expressly refer to inchoate offenses. The

court indicated that it did not foreclose

Commission authority to include

conspiracy offenses under the career

offender guideline by drawing upon its

broader guideline promulgation

authority in 28 U.S.C. 994(a). See also

United States v. Mendoza-Figueroa, 28

F.3d 766 (8th Cir. 1994), vacated (Sept.

2, 1994); United States v. Bellazerius, 24

F.3d 698 (5th Cir.), cert. denied, 115 S.

Ct. 375 (1994). Other circuits have

rejected the Price analysis and upheld

the Commission’s definition of

‘‘controlled substance offense.’’ For

example, the Ninth Circuit considered

the legislative history to 994(h) and

determined that the Senate Report

clearly indicated that 994(h) was not the

sole enabling statute for the career

offender guidelines. United States v.

Heim, 15 F.3d 830 (9th Cir.), cert.

denied, 115 S. Ct. 55 (1994). See also

United States v. Hightower, 25 F.3d 182

(3d Cir.), cert. denied, 115 S. Ct. 370

(1994); United States v. Damerville, 27

F.3d 254 (7th Cir.), cert. denied, 115 S.

Ct. 445 (1994); United States v. Allen,

24 F.3d 1180 (10th Cir.), cert. denied,

115 S. Ct. 493 (1994); United States v.

Baker, 16 F.3d 854 (8th Cir. 1994);

United States v. Linnear, 40 F.3d 215

(7th Cir. 1994); United States v.

Kennedy, 32 F.3d 876 (4th Cir. 1994),

cert. denied, 115 S. Ct. 939 (1995);

United States v. Piper, 35 F.3d 611 (1st

Cir. 1994), cert. denied, 115 S. Ct. 1118

(1995).

22. Amendment: The Commentary to

§ 5D1.1 captioned ‘‘Application Notes’’

is amended in Note 1 by deleting:

‘‘While there may be cases within this

category that do not require post release

supervision, these cases are the

exception and may be handled by a

departure from this guideline.’’,

and inserting in lieu thereof:

‘‘The court may depart from this

guideline and not impose a term of

supervised release if it determines that

supervised release is neither required by

statute nor required for any of the

following reasons: (1) To protect the

public welfare; (2) to enforce a financial

condition; (3) to provide drug or alcohol

treatment or testing; (4) to assist the

reintegration of the defendant into the

community; or (5) to accomplish any

other sentencing purpose.’’.

Section 5D1.2 is amended by deleting

subsection (a); and by redesignating

subsection (b) as subsection (a).

Section 5D1.2(a) (formerly § 5D1.2(b))

is amended by deleting ‘‘Otherwise,

when’’ and inserting in lieu thereof ‘‘If’’.

Section 5D1.2 is amended by inserting

the following additional subsection:

‘‘(b) Provided, that the term of

supervised release imposed shall in no

event be less than any statutorily

required term of supervised release.’’.

Reason for Amendment: This

amendment sets forth with greater

specificity the circumstances under

which the court may depart from the

requirements of § 5D1.1 (Imposition of a

Term of Supervised Release) and

impose no term of supervised release. In

addition, the amendment deletes, as

unnecessary, the requirement in § 5D1.2

(Term of Supervised Release) of a term

of supervised release of three to five

years whenever a statute requires any

term of supervised release. Instead, the

amendment provides that, in the case of

a statute requiring a term of supervised

release, the length of the term of

supervised release shall be determined

by the class of felony of which the

defendant was convicted, but shall not

be less than any term required by

statute.

23. Amendment: Section 5E1.1(a)(2) is

amended by deleting ‘‘§ 1472 (h), (i), (j),

or (n)’’ and inserting in lieu thereof

‘‘§ 46312, § 46502, or § 46504’’.

The Commentary to § 5E1.1 captioned

‘‘Background’’ is amended in the first

paragraph by deleting ‘‘and of

designated subdivisions of 49 U.S.C.

1472’’ and inserting in lieu thereof ‘‘or

49 U.S.C. 46312, 46502, or 46504’’.

The Commentary to § 5E1.1 captioned

‘‘Background’’ is amended in the second

paragraph by deleting ‘‘§ 1472 (h), (i), (j),

or (n)’’ wherever it appears and

inserting in lieu thereof in each instance

‘‘§ 46312, § 46502, or § 46504’’.

The Commentary to § 5E1.1 is

amended by inserting the following

immediately before ‘‘Background’’:

‘‘Application Note

1. In the case of a conviction under

certain statutes, additional requirements

regarding restitution apply. See 18

U.S.C. 2248 and 2259 (applying to

convictions under 18 U.S.C. 2241–2258

for sexual-abuse offenses and sexual

exploitation of minors); 18 U.S.C. 2327

(applying to convictions under 18

U.S.C. 1028–1029, 1341–1344 for

telemarketing-fraud offenses); 18 U.S.C.

2264 (applying to convictions under 18

U.S.C. 2261–2262 for domestic-violence

offenses). To the extent that any of the

above-noted statutory provisions

conflicts with the provisions of this

guideline, the applicable statutory

provision shall control.’’.

Reason for Amendment: Section

40113 of the Violent Crime Control and

Law Enforcement Act of 1994 requires

‘‘mandatory’’ restitution for offenses

involving sexual abuse and sexual

exploitation of children under 18 U.S.C.

2241–2258. Sections 250002 and 40221

add similar ‘‘mandatory’’ restitution

provisions for offenses involving

telemarketing fraud (18 U.S.C. 2327)
25088 Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Notices

and domestic violence (18 U.S.C. 2264).

These provisions also require that

compliance with a restitution order be

a condition of probation or supervised

release, have broader definitions of loss

than 18 U.S.C. 3663, and apply

‘‘notwithstanding section 3663, and in

addition to any civil or criminal penalty

authorized by law.’’ This amendment

adds commentary to § 5E1.1

(Restitution) to alert the courts to the

new statutory provisions.

In addition, this amendment conforms

§ 5E1.1 to the redesignation of 49 U.S.C.

1472 (h), (i), (j), and (n) as 49 U.S.C.

46312, 46502 (a), (b), and 46504.

24. Amendment: Chapter Five, Part K,

Subpart Two is amended by inserting

the following additional section:

‘‘§ 5K2.17. High-Capacity,

Semiautomatic Firearms (Policy

Statement)

If the defendant possessed a highcapacity, semiautomatic firearm in

connection with a crime of violence or

controlled substance offense, an upward

departure may be warranted. A ‘highcapacity, semiautomatic firearm’ means

a semiautomatic firearm that has a

magazine capacity of more than ten

cartridges. The extent of any increase

should depend upon the degree to

which the nature of the weapon

increased the likelihood of death or

injury in the circumstances of the

particular case.

Commentary

Application Note

1. ‘Crime of violence’ and ‘controlled

substance offense’ are defined in § 4B1.2

(Definitions of Terms Used in Section

4B1.1).’’.

Reason for Amendment: This

amendment addresses the directive in

section 110501 of the Violent Crime

Control and Law Enforcement Act of

1994 to provide an ‘‘appropriate’’

enhancement for a crime of violence or

drug trafficking crime if a

semiautomatic firearm is involved.

According to data reviewed by the

Commission, semiautomatic firearms

are used in 50–70 percent of offenses

involving a firearm. Thus, offenses

involving a semiautomatic firearm

represent the typical or ‘‘heartland’’ case

under the guidelines. Consequently, the

firearms enhancements in the guidelines

for crimes of violence and drug

trafficking can be considered to take

into account the fact that firearms

involved in these offenses typically are

semiautomatic. Moreover, the

‘‘firepower’’ or ‘‘dangerousness’’ of

semiautomatic firearms, compared to

other types of firearms, varies

substantially with caliber and magazine

capacity. For example, a .25 caliber, sixshot semiautomatic pistol is not

considered as having as much firepower

as a .38 caliber, six-shot revolver or a

.357 magnum, six-shot revolver. A ninemillimeter semiautomatic pistol fires a

somewhat more powerful cartridge than

a .38 caliber revolver and a somewhat

less powerful cartridge than a .357

magnum revolver. But some ninemillimeter semiautomatic pistols hold

from 14–18 cartridges, compared to six

cartridges for a revolver. A high

magazine capacity, nine-millimeter

semiautomatic pistol can be said to have

significantly more firepower than a

revolver because it can fire a

significantly larger number of shots

without reloading.

If harm actually results (e.g., death or

bodily injury), the guidelines generally

take that harm into account directly.

Consequently, in considering any

distinction between semiautomatic

firearms and other firearms, the issue is

whether there is any significant

difference in the risk of harm. The

difference in the risk of harm also varies

widely with the circumstances of the

offense. For example, in a robbery at

very close range, the difference in the

likelihood of death or bodily injury

between a revolver and semiautomatic

pistol would seem to be small. In

contrast, in a drive-by shooting the

greater firepower of a semiautomatic

weapon likely would have a more

significant effect on the likelihood of

death or injury.

After considering the above factors,

the Commission determined that the

most appropriate approach at this time

was to provide a specific basis for an

upward departure when a high-capacity

semiautomatic firearm is possessed in

connection with a crime of violence or

drug trafficking offense, thereby

allowing the courts the flexibility to take

this factor into account as appropriate in

the circumstances of the particular case.

Additionally, the Commission amended

§ 2D1.1 (Unlawful Manufacturing,

Importing, Exporting, or Trafficking;

Attempt or Conspiracy) to provide

greater enhancement when a firearm

(including a semiautomatic firearm) is

involved.

25. Amendment: Chapter Five, Part K,

Subpart Two is amended by inserting

the following additional section:

‘‘§ 5K2.18. Violent Street Gangs

(Policy Statement)

If the defendant is subject to an

enhanced sentence under 18 U.S.C. 521

(pertaining to criminal street gangs), an

upward departure may be warranted.

The purpose of this departure provision

is to enhance the sentences of

defendants who participate in groups,

clubs, organizations, or associations that

use violence to further their ends. It is

to be noted that there may be cases in

which 18 U.S.C. 521 applies, but no

violence is established. In such cases, it

is expected that the guidelines will

account adequately for the conduct and,

consequently, this departure provision

would not apply.’’.

Reason for Amendment: This

amendment expressly provides a basis

for an upward departure in the case of

a defendant subject to a statutorily

enhanced maximum penalty under 18

U.S.C. 521 (pertaining to criminal street

gangs), as enacted by section 150000 of

the Violent Crime and Law Enforcement

Act of 1994.

26. Amendment: Section 7B1.3(g)(2)

is amended by deleting ‘‘the defendant

may, to the extent permitted by law, be

ordered to recommence supervised

release upon release from

imprisonment’’, and inserting in lieu

thereof:

‘‘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)’’.

The Commentary to § 7B1.3 captioned

‘‘Application Notes’’ is amended in

Note 2 by deleting:

‘‘. This statute, however, neither

expressly authorizes nor precludes a

court from ordering that a term of

supervised release recommence after

revocation. Under § 7B1.3(g)(2), the

court may order, to the extent permitted

by law, the recommencement of a

supervised release term following

revocation’’,

and inserting in lieu thereof:

‘‘, (g)–(i). Under 18 U.S.C. 3583(h)

(effective September 13, 1994), the

court, in the case of revocation of

supervised release and imposition of

less than the maximum imposable term

of imprisonment, may order an

additional period of supervised release

to follow imprisonment’’.

The Commentary to § 7B1.3 captioned

‘‘Application Notes is amended by

deleting Note 3, and by renumbering the

remaining notes accordingly.

The Commentary to § 7B1.4 captioned

‘‘Application Notes’’ is amended by

deleting Notes 5 and 6 and inserting in

lieu thereof:

‘‘5. Upon a finding that a defendant

violated a condition of probation or
Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Notices 25089

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 probation or

supervised release and impose a

sentence that includes a term of

imprisonment. 18 U.S.C. 3565(b),

3583(g).

6. In the case of a defendant who fails

a drug test, the court shall consider

whether the availability of appropriate

substance abuse programs, or a

defendant’s current or past participation

in such programs, warrants an exception

from the requirement of mandatory

revocation and imprisonment under 18

U.S.C. 3565(b) and 3583(g). 18 U.S.C.

3563(a), 3583(d).’’.

Reason for Amendment: Section

110505 of the Violent Crime Control and

Law Enforcement Act of 1994 amends

18 U.S.C. 3583(e)(3) by specifying that

a defendant whose supervised release

term is revoked may not be required to

serve more than five years in prison if

the offense that resulted in the term of

supervised release is a Class A felony.

The provision also amends section

3583(g) by eliminating the mandatory

re-imprisonment period of at least onethird of the term of supervised release

if the defendant possesses a controlled

substance or a firearm, or refuses to

participate in drug testing. Finally, the

provision expressly authorizes the court

to order an additional, limited period of

supervision following revocation of

supervised release and reimprisonment.

Section 20414 of the Violent Crime

Control and Law Enforcement Act of

1994 makes mandatory a condition of

probation requiring that the defendant

refrain from any unlawful use of a

controlled substance. 18 U.S.C.

3563(a)(4). The section also establishes

a condition that the defendant, with

certain exceptions, submit to periodic

drug tests. The existing mandatory

condition of probation requiring the

defendant not to possess a controlled

substance remains unchanged. 18 U.S.C.

3563(a)(3). Similar requirements are

made with respect to conditions of

supervised release. 18 U.S.C. 3583(d).

Section 110506 of the Violent Crime

Control and Law Enforcement Act of

1994 mandates revocation of probation

and imposition of a term of

imprisonment if the defendant violates

probation by possessing a controlled

substance or a firearm, or by refusing to

comply with drug testing. 18 U.S.C.

3565(b). It does not require revocation

in the case of use of a controlled

substance (although use presumptively

may establish possession). No minimum

term of imprisonment is required other

than a sentence that includes a ‘‘term of

imprisonment’’ consistent with the

sentencing guidelines and revocation

policy statements. Similar requirements

are set forth in 18 U.S.C. 3583(g) with

respect to conditions of supervised

release.

Section 20414 permits ‘‘an exception

in accordance with United States

Sentencing Commission guidelines’’

from the mandatory revocation

provisions of section 3565(b), ‘‘when

considering any action against a

defendant who fails a drug test

administered in accordance with

[section 3563(a)(4)].’’ The exception

from the mandatory revocation

provisions appears limited to a

defendant who fails the test and does

not appear to apply to a defendant who

refuses to take the test.

This amendment conforms §§ 7B1.3

(Revocation of Probation or Supervised

Release) and 7B1.4 (Term of

Imprisonment) to these revised statutory

provisions.

27. Amendment: Appendix A is

amended by inserting the following at

the appropriate place by title and

section:

Title Section

‘‘7 U.S.C. 2018(c) ..... 2N2.1’’

‘‘7 U.S.C. 6810 ......... 2N2.1’’

‘‘18 U.S.C. 36 ........... 2D1.1.’’

‘‘18 U.S.C. 37 ........... 2A1.1, 2A1.2, 2A1.3,

2A1.4, 2A2.1, 2A2.2,

2A2.3, 2A3.1, 2A3.4,

2A4.1, 2A5.1, 2A5.2,

2B1.3, 2B3.1, 2K1.4’’

‘‘18 U.S.C. 113(a)(1) 2A2.1’’

‘‘18 U.S.C. 113(a)(2) 2A2.2’’

‘‘18 U.S.C. 113(a)(3) 2A2.2’’

‘‘18 U.S.C. 113(a)(5)

(Class A misdemeanor provisions only).

2A2.3’’

‘‘18 U.S.C. 113(a)(6) 2A2.2’’

‘‘18 U.S.C. 113(a)(7) 2A2.3’’

‘‘18 U.S.C. 470 ......... 2B5.1, 2F1.1’’

‘‘18 U.S.C. 668 ......... 2B1.1’’

‘‘18 U.S.C. 844(m) ... 2K1.3’’

‘‘18 U.S.C. 880 ......... 2B1.1’’

‘‘18 U.S.C. 922(s)–

(w).

2K2.1’’

‘‘18 U.S.C. 922(x)(1) 2K2.1’’

‘‘18 U.S.C. 924(i) ...... 2A1.1, 2A1.2’’

‘‘18 U.S.C. 924(j)–(n) 2K2.1’’

‘‘18 U.S.C. 1033 ....... 2B1.1, 2F1.1, 2J1.2’’

‘‘18 U.S.C. 1118 ....... 2A1.1, 2A1.2’’

‘‘18 U.S.C. 1119 ....... 2A1.1, 2A1.2, 2A1.3,

2A1.4, 2A2.1’’

‘‘18 U.S.C. 1120 ....... 2A1.1, 2A1.2, 2A1.3,

2A1.4’’

‘‘18 U.S.C. 1121 ....... 2A1.1, 2A1.2’’

‘‘18 U.S.C. 1204 ....... 2J1.2’’

‘‘18 U.S.C. 1716D .... 2Q2.1’’

‘‘18 U.S.C. 2114(b) .. 2B1.1’’

‘‘18 U.S.C.

2258(a),(b).

2G2.1, 2G2.2’’

Title Section

‘‘18 U.S.C. 2261 ....... 2A1.1, 2A1.2, 2A2.1,

2A2.2, 2A2.3, 2A3.1,

2A3.4, 2A4.1, 2B3.1,

2B3.2, 2K1.4’’

‘‘18 U.S.C. 2262 ....... 2A1.1, 2A1.2, 2A2.1,

2A2.2, 2A2.3, 2A3.1,

2A3.4, 2A4.1, 2B3.1,

2B3.2, 2K1.4’’

‘‘18 U.S.C. 2280 ....... 2A1.1, 2A1.2, 2A1.3,

2A1.4, 2A2.1, 2A2.2,

2A2.3, 2A4.1, 2B1.3,

2B3.1, 2B3.2, 2K1.4’’

‘‘18 U.S.C. 2281 ....... 2A1.1, 2A1.2, 2A1.3,

2A1.4, 2A2.1, 2A2.2,

2A2.3, 2A4.1, 2B1.3,

2B3.1, 2B3.2, 2K1.4’’

‘‘18 U.S.C. 2332a ..... 2A1.1, 2A1.2, 2A1.3,

2A1.4, 2A1.5, 2A2.1,

2A2.2, 2B1.3, 2K1.4’’

‘‘18 U.S.C. 2423(b) .. 2A3.1, 2A3.2, 2A3.3’’

‘‘21 U.S.C. 843(a)(9) 2D3.1’’

‘‘21 U.S.C. 843(c) ..... 2D3.1’’

‘‘21 U.S.C. 849 ......... 2D1.2’’

‘‘21 U.S.C. 960(d)(3),

(4).

2D1.11’’

‘‘21 U.S.C. 960(d)(5) 2D1.13’’

‘‘21 U.S.C. 960(d)(6) 2D3.1’’

‘‘42 U.S.C. 1307(b) .. 2F1.1’’

In the line referenced to 18 U.S.C.

113(a) by inserting ‘‘(for offenses

committed prior to September 13,

1994)’’ immediately following ‘‘2A2.1’’;

In the line referenced to 18 U.S.C.

113(b) by inserting ‘‘(for offenses

committed prior to September 13,

1994)’’ immediately following ‘‘2A2.2’’;

In the line referenced to 18 U.S.C.

113(c) by inserting ‘‘(for offenses

committed prior to September 13,

1994)’’ immediately following ‘‘2A2.2’’;

In the line referenced to 18 U.S.C.

113(f) by inserting ‘‘(for offenses

committed prior to September 13,

1994)’’ immediately following ‘‘2A2.2’’;

In the line referenced to 18 U.S.C. 371

by inserting ‘‘2K2.1 (if a conspiracy to

violate 18 U.S.C. 924(c)),’’ immediately

before ‘‘2X1.1’’;

In the line referenced to 18 U.S.C.

1153 by inserting ‘‘2A2.3,’’ immediately

before ‘‘2A3.1’’;

In the line referenced to 18 U.S.C.

2114 by deleting ‘‘2114’’ and inserting

in lieu thereof ‘‘2114(a)’’;

and in the line referenced to 18 U.S.C.

2423 by deleting ‘‘2423’’ and by

inserting in lieu thereof ‘‘2423(a)’’.

Appendix A is amended by deleting:

‘‘49 U.S.C. 1472(c) ........................ 2A5.2

49 U.S.C. 1472(h)(2) ..................... 2Q1.2

49 U.S.C. 1472(i)(1) ...................... 2A5.1

49 U.S.C. 1472(j) ........................... 2A5.2

49 U.S.C. 1472(k)(1) ...................... 2A5.3

49 U.S.C. 1472(l) ........................... 2K1.5

49 U.S.C. 1472(n)(1) ..................... 2A5.1’’

and inserting in lieu thereof:

‘‘49 U.S.C. 46308 .......................... 2A5.2

49 U.S.C. 46312 ............................ 2Q1.2
25090 Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Notices

49 U.S.C. 46502(a), (b) .................. 2A5.1

49 U.S.C. 46504 ............................ 2A5.2

49 U.S.C. 46506 ............................ 2A5.3

49 U.S.C. 46505 ............................ 2K1.5

49 U.S.C. 46502(b) ........................ 2A5.1’’

Section 2D3.1 is amended in the title

by deleting: ‘‘Illegal Use of Registration

Number to Manufacture, Distribute,

Acquire, or Dispense a Controlled

Substance’’ and inserting in lieu thereof

‘‘Regulatory Offenses Involving

Registration Numbers; Unlawful

Advertising Relating to Schedule I

Substances’’.

Section 2D3.2 is amended by inserting

‘‘or Listed Chemicals’’ immediately after

‘‘Controlled Substances’’.

Section 2Q2.1 is amended by deleting

the title and inserting in lieu thereof

‘‘Offenses Involving Fish, Wildlife, and

Plants’’.

Reason for Amendment: This

amendment makes Appendix A

(Statutory Index) more comprehensive.

References are added for new offenses

enacted by the Violent Crime Control

and Law Enforcement Act of 1994,

Public Law 103–322, 108 Stat. 1796; the

Fresh Cut Flowers and Fresh Cut Greens

Promotion and Information Act of 1993,

Public Law 103–190, 107 Stat. 2266; the

Food Stamp Program Improvements Act

of 1994, Public Law 103–225, 108 Stat.

106; the Social Security Independence

and Program Improvements Act of 1994,

Public Law 103–296 108 Stat. 1464; the

Domestic Chemical Diversion Act of

1993, Public Law 103–200, 107 Stat.

2333; and the International Parental

Kidnapping Crime Act of 1993, Public

Law 103–173, 107 Stat. 1998. In

addition, the amendment conforms

Appendix A to revisions in existing

statutes. Finally, the amendment revises

the titles of several offense guidelines to

better reflect their scope.

[FR Doc. 95–11371 Filed 5–9–95; 8:45 am]

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