[Federal Register Volume 60, Number 90 (Wednesday, May 10, 1995)]
[Notices]
[Pages 25074-25090]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11371]




[[Page 25073]]

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Part IV





United States Sentencing Commission





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Amendments to the Sentencing Guidelines for United States Courts; 
Notice

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

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.

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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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 
(Sec. 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, Sec. 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. [[Page 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 Sec. 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 
Sec. 2D1.1, Sec. 2D2.1, Sec. 2K1.3, or Sec. 2K2.1, as appropriate, if 
the resulting offense level is greater than that determined above.''.
    The Commentary to Sec. 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 Sec. 2B1.1 
(Larceny, Embezzlement, and Other Forms of Theft; Receiving, 
Transporting, Transferring, Transmitting, or Possessing Stolen 
Property) and similar offenses sentenced under Sec. 2D1.1 (Unlawful 
Manufacturing, Importing, Exporting, or Trafficking; Attempt or 
Conspiracy), Sec. 2D2.1 (Unlawful Possession; Attempt or Conspiracy), 
Sec. 2K1.3 (Unlawful Receipt, Possession, or Transportation of 
Explosive Materials; Prohibited Transactions Involving Explosive 
Materials), or Sec. 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 Sec. 2B1.1 directing the application of Sec. 2D1.1, 
Sec. 2D2.1, Sec. 2K1.3, or Sec. 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 Sec. 2B5.1 captioned ``Application Notes'' is 
amended in Note 2 by deleting ``2B5.2'' and inserting in lieu thereof 
``2F1.1''.
    The Commentary to Sec. 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 Sec. 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 Sec. 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 Sec. 2D1.1 captioned ``Application Notes'' is 
amended in [[Page 25076]] 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 Sec. 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 Sec. 2K2.1 (Unlawful 
Receipt, Possession, or Transportation of Firearms or Ammunition; 
Prohibited Transactions Involving Firearms or Ammunition).''.
    The Commentary to Sec. 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 Sec. 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 Sec. 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 Sec. 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 (Sec. 3B1.1), for the sale 
of controlled substances to juveniles or pregnant women (Sec. 2D1.2), 
for the sale of controlled substances in protected locations 
(Sec. 2D1.2), for the use of juveniles in controlled substance offenses 
(Sec. 2D1.2), and for repeat offenders (Chapter 4). For offenses 
involving death, a cross-reference to the first-degree murder guideline 
is provided (Sec. 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 [[Page 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 (Secs. 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 (Sec. 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 
Sec. 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 Sec. 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 Sec. 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 Sec. 2D2.1 (Unlawful 
Possession; Attempt or Conspiracy) to Sec. 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 Sec. 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 Sec. 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 
Sec. 5C1.2, as set forth in the Guidelines Manual effective November 1, 
1994. In addition, this amendment adds a new subsection to Sec. 2D1.1 
to implement this provision by providing a two-level decrease in 
offense level for cases meeting the criteria set forth in 
Sec. 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 Sec. 2D1.1 captioned ``Background'' is 
amended in the fourth [[Page 25078]] 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 Sec. 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 Sec. 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:

[[Page 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 rain-soaked 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 Sec. 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 Sec. 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/Levo-methamphetamine/L-Desoxyephedrine 
= 40 gm of marihuana'';

and inserting in lieu thereof:
    ``1 gm of Khat = .01 gm of marihuana''.
    The Commentary to Sec. 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 agreed-upon 
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 Sec. 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).''. [[Page 25080]] 
    Reason for Amendment: This is a six-part amendment. First, this 
amendment adds definitions of hashish and hashish oil to Sec. 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 Sec. 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 Sec. 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 Sec. 2D1.1.
    Fifth, this amendment deletes the distinction between d- and l-
methamphetamine in the Drug Equivalency Tables in the Commentary to 
Sec. 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 d-
methamphetamine (i.e., as if an attempt to manufacture or distribute d-
methamphetamine). Currently, unless the methamphetamine is specifically 
tested to determine its form, litigation can result over whether the 
methamphetamine is l-methamphetamine or d-methamphetamine. In addition, 
there is another form of methamphetamine (dl-methamphetamine) 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 dl-methamphetamine 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 dl-
methamphetamine should be treated as d-methamphetamine, the majority 
and dissenting opinions both point out the complexity engendered by the 
current distinction between d- and l- methamphetamine. Under this 
amendment, all forms of methamphetamine are treated alike, thereby 
simplifying guideline application.
    Sixth, this amendment revises the Commentary to Sec. 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 Sec. 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;'', 
[[Page 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, 
N-Methylephedrine, N-Methylpseudoephedrine, 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, N-
methylephedrine, N-methylpseudoephedrine, norpseudoephedrine, 
phenylpropanolamine, or pseudoephedrine; or (B) ethylamine and 3,4-
methylenedioxyphenyl-2-propanone; or (C) benzaldehyde and 
nitroethane,''.
    The Commentary to Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 
Sec. 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 [[Page 25082]] the chemicals removed from the 
list are not currently listed in Sec. 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, d-lysergic acid, 
was listed both as a listed chemical in Sec. 2D1.11 and as a controlled 
substance in Sec. 2D1.1. This amendment conforms Sec. 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 Sec. 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 Sec. 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 Secs. 2D1.11(b)(2) and 2D1.13(b)(2), this 
amendment provides an alternative base offense level in Sec. 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 Secs. 2H1.1, 2H1.3, 2H1.4, and 2H1.5 are deleted and the 
following inserted in lieu thereof:
    ``Sec. 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 Sec. 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 Sec. 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 Sec. 3A1.1(a) will apply.
    5. If subsection (b)(1) applies, do not apply Sec. 3B1.3 (Abuse of 
Position of Trust or Use of Special Skill).''.
    Section 3A1.1 is deleted and the following inserted in lieu 
thereof:
    ``Sec. 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 
Sec. 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 [[Page 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 Sec. 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 Sec. 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 five-part amendment. First, the 
amendment adds an additional subsection to Sec. 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 Secs. 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 Sec. 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 Sec. 2H1.1. 
Fourth, the amendment clarifies the operation of Sec. 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 Sec. 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 Sec. 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 
Sec. 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 Sec. 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''. [[Page 25084]] 
    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 Sec. 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 Sec. 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 Sec. 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 Sec. 2K2.1 captioned ``Application Notes'' is 
amended by deleting Note 12 and inserting in lieu thereof:
    ``12. If the only offense to which Sec. 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 Sec. 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 five-part amendment. First, the 
amendment revises Sec. 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 Sec. 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 
Sec. 2K2.1 applies only to cases in which the base offense level is 
determined under Sec. 2K2.1(a)(7).
    15. Amendment: The Commentary to Sec. 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 Sec. 4A1.3 (Adequacy of 
Criminal History Category)''.
    Reason for Amendment: This amendment revises Sec. 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 Sec. 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 Sec. 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 [[Page 25085]] commission of a felony offense, other than an 
offense involving violation of the immigration laws, apply--
    (A) Sec. 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 Sec. 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 
Sec. 2L2.1(b)(2). Third, this amendment adds a cross reference to 
Sec. 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 Sec. 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:
    ``Sec. 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 Sec. 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 
Sec. 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 
Sec. 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 Sec. 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 
Sec. 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 money-laundering transaction in a legitimate 
business, or used an alias or otherwise provided false information to 
disguise the true source or ownership of the funds. [[Page 25086]] 
    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 Sec. 8C2.4 captioned ``Application Notes'' is 
amended in Note 5 by deleting ``Sec. 2S1.1 (Laundering of Monetary 
Instruments); Sec. 2S1.2 (Engaging in Monetary Transactions in Property 
Derived from Specified Unlawful Activity); and Sec. 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 ``Sec. 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 Secs. 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 Secs. 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 
Secs. 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 
Sec. 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 Sec. 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:
    ``Sec. 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 Sec. 3A1.4 (Terrorism) in 
place of the current upward departure provision at Sec. 5K2.15 
(Terrorism).
    20. Amendment: Section 3B1.4 is deleted and the following inserted 
in lieu thereof:
    ``Sec. 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 Sec. 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 
[[Page 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 Sec. 4B1.2 is repromulgated 
without change.
    Reason for Amendment: This amendment inserts additional background 
commentary explaining the Commission's rationale and authority for 
Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 
``Sec. 1472 (h), (i), (j), or (n)'' and inserting in lieu thereof 
``Sec. 46312, Sec. 46502, or Sec. 46504''.
    The Commentary to Sec. 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 Sec. 5E1.1 captioned ``Background'' is amended in 
the second paragraph by deleting ``Sec. 1472 (h), (i), (j), or (n)'' 
wherever it appears and inserting in lieu thereof in each instance 
``Sec. 46312, Sec. 46502, or Sec. 46504''.
    The Commentary to Sec. 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) [[Page 25088]] 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 Sec. 5E1.1 (Restitution) to alert the courts to the new 
statutory provisions.
    In addition, this amendment conforms Sec. 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:
    ``Sec. 5K2.17. High-Capacity, Semiautomatic Firearms (Policy 
Statement)
    If the defendant possessed a high-capacity, semiautomatic firearm 
in connection with a crime of violence or controlled substance offense, 
an upward departure may be warranted. A `high-capacity, 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 Sec. 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, six-
shot 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 nine-millimeter 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 nine-
millimeter 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 Sec. 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:
    ``Sec. 5K2.18. Violent Street Gangs (Policy Statement)
    If the defendant is subject to an enhanced sentence under 18 U.S.C. 
521 (pertaining to criminal street gangs), an upward departure may be 
warranted. The purpose of this departure provision is to enhance the 
sentences of defendants who participate in groups, clubs, 
organizations, or associations that use violence to further their ends. 
It is to be noted that there may be cases in which 18 U.S.C. 521 
applies, but no violence is established. In such cases, it is expected 
that the guidelines will account adequately for the conduct and, 
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 Sec. 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 Sec. 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 Sec. 7B1.3 captioned ``Application Notes is 
amended by deleting Note 3, and by renumbering the remaining notes 
accordingly.
    The Commentary to Sec. 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 [[Page 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 one-third 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 re-imprisonment.
    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 Secs. 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    2A2.3''                   
 provisions only).                                                      
``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''            
``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     
[[Page 25090]]
                                                                        
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]
BILLING CODE 2210-40-P