27388 Federal Register / Vol. 75, No. 93 / Friday, May 14, 2010 / Notices 

UNITED STATES SENTENCING 

COMMISSION 

Sentencing Guidelines for United 

States Courts 

AGENCY: United States Sentencing 

Commission. 

ACTION: Notice of submission to 

Congress of amendments to the 

sentencing guidelines effective 

November 1, 2010. 

SUMMARY: Pursuant to its authority 

under 28 U.S.C. 994(p), the Commission 

has promulgated amendments to the 

sentencing guidelines, policy 

statements, commentary, and statutory 

index. This notice sets forth the 

amendments and the reason for each 

amendment. 

DATES: The Commission has specified 

an effective date of November 1, 2010, 

for the amendments set forth in this 

notice. 

FOR FURTHER INFORMATION CONTACT: 

Michael Courlander, Public Affairs 

Officer, 202–502–4597. The 

amendments set forth in this notice also 

may be accessed through the 

Commission’s Web site at http:// 

www.ussc.gov. 

SUPPLEMENTARY INFORMATION: The 

United States Sentencing Commission is 

an independent agency in the judicial 

branch of the United States 

Government. The Commission 

promulgates sentencing guidelines and 

policy statements for federal sentencing 

courts pursuant to 28 U.S.C. 994(a). The 

Commission also periodically reviews 

and revises previously promulgated 

guidelines pursuant to 28 U.S.C. 994(o) 

and generally submits guideline 

amendments to Congress pursuant to 28 

U.S.C. 994(p) not later than the first day 

of May each year. Absent action of 

Congress to the contrary, submitted 

amendments become effective by 

operation of law on the date specified 

by the Commission (generally November 

1 of the year in which the amendments 

are submitted to Congress). 

Notice of proposed amendments was 

published in the Federal Register on 

January 21, 2010 (see 75 FR 3525). The 

Commission held a public hearing on 

the proposed amendments in 

Washington, DC, on March 17, 2010. On 

April 29, 2010, the Commission 

submitted these amendments to 

Congress and specified an effective date 

of November 1, 2010. 

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

USSC Rule of Practice and Procedure 4.1. 

William K. Sessions III, 

Chair. 

1. Amendment: Chapter Five, Part A, 

is amended in the Sentencing Table by 

redesignating Zones A, B, C, and D (as 

designated by Amendment 462, see 

USSG Appendix C, Amendment 462 

(effective November 1, 1992)) as follows: 

Zone A (containing all guideline ranges 

having a minimum of zero months); 

Zone B (containing all guideline ranges 

having a minimum of at least one but 

not more than nine months); Zone C 

(containing all guideline ranges having 

a minimum of at least ten but not more 

than twelve months); and Zone D 

(containing all guideline ranges having 

a minimum of fifteen months or more). 

The Commentary to § 5B1.1 captioned 

‘‘Application Notes’’ is amended in Note 

1(b) by striking ‘‘six’’ and inserting 

‘‘nine’’; and in Note 2 by striking ‘‘eight’’ 

and inserting ‘‘ten’’. 

The Commentary to § 5C1.1 captioned 

‘‘Application Notes’’ is amended in Note 

3 in the first paragraph by striking ‘‘six’’ 

and inserting ‘‘nine’’; in Note 4 by 

striking ‘‘eight, nine, or ten months’’ and 

inserting ‘‘ten or twelve months’’; by 

striking ‘‘8–14’’ and inserting ‘‘10–16’’ 

both places it appears; by striking 

‘‘sentence of four’’ and inserting 

‘‘sentence of five’’ both places it appears; 

by striking ‘‘four’’ before ‘‘months 

community’’and inserting ‘‘five’’; by 

striking ‘‘five’’ after ‘‘and a sentence of’’ 

and inserting ‘‘ten’’; by striking Note 6 

and inserting the following: 

‘‘6. There may be cases in which a 

departure from the sentencing options 

authorized for Zone C of the Sentencing 

Table (under which at least half the 

minimum term must be satisfied by 

imprisonment) to the sentencing options 

authorized for Zone B of the Sentencing 

Table (under which all or most of the 

minimum term may be satisfied by 

intermittent confinement, community 

confinement, or home detention instead of 

imprisonment) is appropriate to accomplish 

a specific treatment purpose. Such a 

departure should be considered only in cases 

where the court finds that (A) the defendant 

is an abuser of narcotics, other controlled 

substances, or alcohol, or suffers from a 

significant mental illness, and (B) the 

defendant’s criminality is related to the 

treatment problem to be addressed. 

In determining whether such a departure is 

appropriate, the court should consider, 

among other things, (1) the likelihood that 

completion of the treatment program will 

successfully address the treatment problem, 

thereby reducing the risk to the public from 

further crimes of the defendant, and (2) 

whether imposition of less imprisonment 

than required by Zone C will increase the 

risk to the public from further crimes of the 

defendant. 

Examples: The following examples both 

assume the applicable guideline range is 12– 

18 months and the court departs in 

accordance with this application note. Under 

Zone C rules, the defendant must be 

sentenced to at least six months 

imprisonment. (1) The defendant is a 

nonviolent drug offender in Criminal History 

Category I and probation is not prohibited by 

statute. The court departs downward to 

impose a sentence of probation, with twelve 

months of intermittent confinement, 

community confinement, or home detention 

and participation in a substance abuse 

treatment program as conditions of 

probation. (2) The defendant is convicted of 

a Class A or B felony, so probation is 

prohibited by statute (see § 5B1.1(b)). The 

court departs downward to impose a 

sentence of one month imprisonment, with 

eleven months in community confinement or 

home detention and participation in a 

substance abuse treatment program as 

conditions of supervised release.’’ 

In Note 7 by striking the last sentence; 

in Note 8 by striking ‘‘twelve’’ and 

inserting ‘‘15’’; and by redesignating 

Note 8 as Note 9 and inserting after Note 

7 the following: 

‘‘8. In a case in which community 

confinement in a residential treatment 

program is imposed to accomplish a specific 

treatment purpose, the court should consider 

the effectiveness of the residential treatment 

program.’’ 

Reason for Amendment: This 

amendment is a two-part amendment 

expanding the availability of 

alternatives to incarceration. The 

amendment provides a greater range of 

sentencing options to courts with 

respect to certain offenders by 

expanding Zones B and C of the 

Sentencing Table by one level each and 

addresses cases in which a departure 

from imprisonment to an alternative to 

incarceration (such as intermittent 

confinement, community confinement, 

or home confinement) may be 

appropriate to accomplish a specific 

treatment purpose. 

The amendment is a result of the 

Commission’s continued multi-year 

study of alternatives to incarceration. 

The Commission initiated this study in 

recognition of increased interest in 

alternatives to incarceration by all three 

branches of government and renewed 

public debate about the size of the 

federal prison population and the need 

for greater availability of alternatives to 

incarceration for certain nonviolent first 

offenders. See generally 28 U.S.C. 

994(g), (j). 

As part of the study, the Commission 

held a two-day national symposium at 

which the Commission heard from 

experts on alternatives to incarceration, 

including federal and state judges, 

congressional staff, professors of law 


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Federal Register / Vol. 75, No. 93 / Friday, May 14, 2010 / Notices 27389 

and the social sciences, corrections and 

alternative sentencing practitioners and 

specialists, federal and state prosecutors 

and defense attorneys, prison officials, 

and others involved in criminal justice. 

See United States Sentencing 

Commission, Symposium on 

Alternatives to Incarceration (July 

2008). In considering the amendment, 

the Commission also reviewed federal 

sentencing data, public comment and 

testimony, recent scholarly literature, 

current federal and state practices, and 

feedback in various forms from federal 

judges. 

First, the amendment expands Zones 

B and C of the Sentencing Table in 

Chapter Five. Specifically, it expands 

Zone B by one level for each Criminal 

History Category (taking this area from 

Zone C), and expands Zone C by one 

level for each Criminal History Category 

(taking this area from Zone D). 

Accordingly, under the amendment, 

defendants in Zone C with an applicable 

guideline range of 8–14 months or 9–15 

months are moved to Zone B, and 

defendants in Zone D with an 

applicable guideline range of 12–18 

months are moved to Zone C. 

Conforming changes also are made to 

§§ 5B1.1 (Imposition of a Term of 

Probation) and 5C1.1. In considering 

this one-level expansion, the 

Commission observed that 

approximately 42 percent of the Zone C 

offenders covered by the amendment 

and approximately 52 percent of the 

Zone D offenders covered by the 

amendment already receive sentences 

below the applicable guideline range. 

The Commission estimates that of the 

71,054 offenders sentenced in fiscal year 

2009 for which complete sentencing 

guideline application information is 

available, 1,565 offenders in Zone C, or 

2.2 percent, would have been in Zone B 

of the Sentencing Table under the 

amendment, and 2,734 offenders in 

Zone D, or 3.8 percent, would have been 

in Zone C. Not all of these offenders 

would have been eligible for an 

alternative to incarceration, however, 

because many were non-citizens who 

may have been subject to an 

immigration detainer and some were 

statutorily prohibited from being 

sentenced to a term of probation, see, 

e.g., 18 U.S.C. 3561(a)(1) (prohibiting a 

defendant convicted of a Class A or 

Class B felony from being sentenced to 

a term of probation). 

As a further reason for the zone 

expansion, Commission data indicate 

that courts often sentence offenders in 

Zone D with an applicable guideline 

range of 12–18 months to a term of 

imprisonment of 12 months and one day 

for the specific purpose of making such 

offenders eligible for credit for 

satisfactory behavior while in prison. 

See 18 U.S.C. 624(b). For such an 

offender, assuming the maximum ‘‘good 

time credit’’ is earned, the sentence 

effectively becomes approximately ten 

and one-half months. Given that prior to 

the amendment the highest guideline 

range in Zone C was 10–16 months, the 

Commission determined that offenders 

in Zone D with an applicable guideline 

range of 12–18 months, many of whom 

effectively serve a sentence at the lower 

end of the highest Zone C sentencing 

range, should be included in Zone C. 

Second, the amendment clarifies and 

illustrates certain cases in which a 

departure may be appropriate to 

accomplish a specific treatment 

purpose. Specifically, it amends an 

existing departure provision at § 5C1.1 

(Imposition of a Term of Imprisonment), 

Application Note 6. As amended, the 

application note states that a departure 

from the sentencing options authorized 

for Zone C of the Sentencing Table to 

accomplish a specific treatment purpose 

should be considered only in cases 

where the court finds that (A) the 

defendant is an abuser of narcotics, 

other controlled substances, or alcohol, 

or suffers from a significant mental 

illness, and (B) the defendant’s 

criminality is related to the treatment 

problem to be addressed. 

Under the application note as 

amended, the court may depart from the 

sentencing options authorized for Zone 

C (under which at least half the 

minimum term must be satisfied by 

imprisonment) to the sentencing options 

authorized for Zone B (under which all 

or most of the minimum term may be 

satisfied by intermittent confinement, 

community confinement, or home 

detention instead of imprisonment) to 

accomplish a specific treatment 

purpose. The application note also 

provides that, in determining whether 

such a departure is appropriate, the 

court should consider, among other 

things, two factors relating to public 

safety: (1) The likelihood that 

completion of the treatment program 

will successfully address the treatment 

problem, thereby reducing the risk to 

the public from further crimes of the 

defendant, and (2) whether imposition 

of less imprisonment than required by 

Zone C will increase the risk to the 

public from further crimes of the 

defendant. Some public comment, 

testimony, and research suggested that 

successful completion of treatment 

programs may reduce recidivism rates 

and that, for some defendants, 

confinement at home or in the 

community instead of imprisonment 

may better address both the defendant’s 

need for treatment and the need to 

protect the public. Accordingly, the 

Commission amended the application 

note to clarify the criteria and to provide 

examples of such cases. 

The amendment also makes two other 

changes to the Commentary to § 5C1.1 

regarding the factors to be considered in 

determining whether to impose an 

alternative to incarceration. The 

amendment adds an application note 

providing that, in a case in which 

community confinement in a residential 

treatment program is imposed to 

accomplish a specific treatment 

purpose, the court should consider the 

effectiveness of the treatment program. 

The amendment also deletes as 

unnecessary the second sentence of 

Application Note 7. 

2. Amendment: Chapter Five, Part H, 

is amended in the Introductory 

Commentary by striking the first 

paragraph and inserting the following: 

‘‘This Part addresses the relevance of 

certain specific offender characteristics in 

sentencing. The Sentencing Reform Act (the 

‘Act’) contains several provisions regarding 

specific offender characteristics: 

First, the Act directs the Commission to 

ensure that the guidelines and policy 

statements ‘are entirely neutral’ as to five 

characteristics—race, sex, national origin, 

creed, and socioeconomic status. See 28 

U.S.C. 994(d). 

Second, the Act directs the Commission to 

consider whether eleven specific offender 

characteristics, ‘among others’, have any 

relevance to the nature, extent, place of 

service, or other aspects of an appropriate 

sentence, and to take them into account in 

the guidelines and policy statements only to 

the extent that they do have relevance. See 

28 U.S.C. 994(d). 

Third, the Act directs the Commission to 

ensure that the guidelines and policy 

statements, in recommending a term of 

imprisonment or length of a term of 

imprisonment, reflect the ‘general 

inappropriateness’ of considering five of 

those characteristics—education; vocational 

skills; employment record; family ties and 

responsibilities; and community ties. See 28 

U.S.C. 994(e). 

Fourth, the Act also directs the sentencing 

court, in determining the particular sentence 

to be imposed, to consider, among other 

factors, ‘the history and characteristics of the 

defendant’. 

See 18 U.S.C. 3553(a)(1). 

Specific offender characteristics are 

taken into account in the guidelines in 

several ways. One important specific 

offender characteristic is the defendant’s 

criminal history, see 28 U.S.C. 

994(d)(10), which is taken into account 

in the guidelines in Chapter Four 

(Criminal History and Criminal 

Livelihood). See § 5H1.8 (Criminal 

History). Another specific offender 

characteristic in the guidelines is the 


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degree of dependence upon criminal 

history for a livelihood, see 28 U.S.C. 

994(d)(11), which is taken into account 

in Chapter Four, Part B (Career 

Offenders and Criminal Livelihood). See 

§ 5H1.9 (Dependence upon Criminal 

Activity for a Livelihood). Other specific 

offender characteristics are accounted 

for elsewhere in this manual. See, e.g., 

§§ 2C1.1(a)(1) and 2C1.2(a)(1) (providing 

alternative base offense levels if the 

defendant was a public official); 3B1.3 

(Abuse of Position of Trust or Use of 

Special Skill); and 3E1.1 (Acceptance of 

Responsibility). 

The Supreme Court has emphasized 

that the advisory guideline system 

should ‘continue to move sentencing in 

Congress’ preferred direction, helping to 

avoid excessive sentencing disparities 

while maintaining flexibility sufficient 

to individualize sentences where 

necessary.’ See United States v. Booker, 

543 U.S. 220, 264–65 (2005). Although 

the court must consider ‘the history and 

characteristics of the defendant’ among 

other factors, see 18 U.S.C. 3553(a), in 

order to avoid unwarranted sentencing 

disparities the court should not give 

them excessive weight. Generally, the 

most appropriate use of specific 

offender characteristics is to consider 

them not as a reason for a sentence 

outside the applicable guideline range 

but for other reasons, such as in 

determining the sentence within the 

applicable guideline range, the type of 

sentence (e.g., probation or 

imprisonment) within the sentencing 

options available for the applicable 

Zone on the Sentencing Table, and 

various other aspects of an appropriate 

sentence. To avoid unwarranted 

sentencing disparities among 

defendants with similar records who 

have been found guilty of similar 

conduct, see 18 U.S.C. 3553(a)(6), 28 

U.S.C. 991(b)(1)(B), the guideline range, 

which reflects the defendant’s criminal 

conduct and the defendant’s criminal 

history, should continue to be ‘the 

starting point and the initial 

benchmark.’ Gall v. United States, 552 

U.S. 38, 49 (2007). 

Accordingly, the purpose of this Part 

is to provide sentencing courts with a 

framework for addressing specific 

offender characteristics in a reasonably 

consistent manner. Using such a 

framework in a uniform manner will 

help ‘secure nationwide consistency,’ 

see Gall v. United States, 552 U.S. 38, 

49 (2007), ‘avoid unwarranted 

sentencing disparities,’ see 28 U.S.C. 

991(b)(1)(B), 18 U.S.C. 3553(a)(6), 

‘provide certainty and fairness,’ see 28 

U.S.C. 991(b)(1)(B), and ‘promote 

respect for the law,’ see 18 U.S.C. 

3553(a)(2)(A). 

This Part allocates specific offender 

characteristics into three general 

categories. 

In the first category are specific 

offender characteristics the 

consideration of which Congress has 

prohibited (e.g., § 5H1.10 (Race, Sex, 

National Origin, Creed, Religion, and 

Socio-Economic Status)) or that the 

Commission has determined should be 

prohibited. 

In the second category are specific 

offender characteristics that Congress 

directed the Commission to take into 

account in the guidelines only to the 

extent that they have relevance to 

sentencing. See 28 U.S.C. 994(d). For 

some of these, the policy statements 

indicate that these characteristics may 

be relevant in determining whether a 

sentence outside the applicable 

guideline range is warranted (e.g., age; 

mental and emotional condition; 

physical condition). These 

characteristics may warrant a sentence 

outside the applicable guideline range if 

the characteristic, individually or in 

combination with other such 

characteristics, is present to an unusual 

degree and distinguishes the case from 

the typical cases covered by the 

guidelines. These specific offender 

characteristics also may be considered 

for other reasons, such as in 

determining the sentence within the 

applicable guideline range, the type of 

sentence (e.g., probation or 

imprisonment) within the sentencing 

options available for the applicable 

Zone on the Sentencing Table, and 

various other aspects of an appropriate 

sentence.’’; in the second paragraph by 

striking ‘‘The Commission has 

determined that certain circumstances’’ 

and inserting the following: ‘‘In the third 

category are specific offender 

characteristics that Congress directed 

the Commission to ensure are reflected 

in the guidelines and policy statements 

as generally inappropriate in 

recommending a term of imprisonment 

or length of a term of imprisonment. See 

28 U.S.C. 994(e). The policy statements 

indicate that these characteristics’’; by 

striking ‘‘or to the determination of’’ and 

inserting ‘‘, the type of sentence (e.g., 

probation or imprisonment) within the 

sentencing options available for the 

applicable Zone on the Sentencing 

Table, or’’; by striking ‘‘incidents’’ and 

inserting ‘‘aspects’’; and by striking the 

last paragraph and inserting the 

following: 

‘‘As with the other provisions in this 

manual, these policy statements ‘are 

evolutionary in nature’. See Chapter One, 

Part A, Subpart 2 (Continuing Evolution and 

Role of the Guidelines); 28 U.S.C. 994(o). The 

Commission expects, and the Sentencing 

Reform Act contemplates, that continuing 

research, experience, and analysis will result 

in modifications and revisions. 

The nature, extent, and significance of 

specific offender characteristics can involve 

a range of considerations. The Commission 

will continue to provide information to the 

courts on the relevance of specific offender 

characteristics in sentencing, as the 

Sentencing Reform Act contemplates. See, 

e.g., 28 U.S.C. 995(a)(12)(A) (the Commission 

serves as a ‘clearinghouse and information 

center’ on federal sentencing). Among other 

things, this may include information on the 

use of specific offender characteristics, 

individually and in combination, in 

determining the sentence to be imposed 

(including, where available, information on 

rates of use, criteria for use, and reasons for 

use); the relationship, if any, between 

specific offender characteristics and (A) the 

‘forbidden factors’ specified in 28 U.S.C. 

994(d) and (B) the ‘discouraged factors’ 

specified in 28 U.S.C. 994(e); and the 

relationship, if any, between specific 

offender characteristics and the statutory 

purposes of sentencing.’’ 

Section 5H1.1 is amended by striking 

the first sentence and inserting the 

following: 

‘‘Age (including youth) may be relevant in 

determining whether a departure is 

warranted, if considerations based on age, 

individually or in combination with other 

offender characteristics, are present to an 

unusual degree and distinguish the case from 

the typical cases covered by the guidelines.’’ 

Section 5H1.3 is amended by striking 

the first paragraph and inserting the 

following: 

‘‘Mental and emotional conditions may be 

relevant in determining whether a departure 

is warranted, if such conditions, individually 

or in combination with other offender 

characteristics, are present to an unusual 

degree and distinguish the case from the 

typical cases covered by the guidelines. See 

also Chapter Five, Part K, Subpart 2 (Other 

Grounds for Departure). 

In certain cases a downward departure may 

be appropriate to accomplish a specific 

treatment purpose. See § 5C1.1, Application 

Note 6.’’ 

Section 5H1.4 is amended in the first 

paragraph by striking the first sentence 

and inserting the following: ‘‘Physical 

condition or appearance, including 

physique, may be relevant in 

determining whether a departure is 

warranted, if the condition or 

appearance, individually or in 

combination with other offender 

characteristics, is present to an unusual 

degree and distinguishes the case from 

the typical cases covered by the 

guidelines.’’; in the second sentence by 

striking ‘‘However, an’’ and inserting 

‘‘An’’; in the second paragraph by 

inserting ‘‘ordinarily’’ after ‘‘or abuse’’; in 

the last sentence by striking 

‘‘supervisory body’’ and inserting 


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‘‘probation office’’; by inserting as the 

third paragraph the following: ‘‘In 

certain cases a downward departure 

may be appropriate to accomplish a 

specific treatment purpose. See § 5C1.1, 

Application Note 6.’’; and in the fourth 

paragraph, as amended by this 

amendment, by striking ‘‘Similarly, 

where’’ and inserting ‘‘In a case in 

which’’. 

Section 5H1.11 is amended by 

inserting as the first paragraph the 

following: ‘‘Military service may be 

relevant in determining whether a 

departure is warranted, if the military 

service, individually or in combination 

with other offender characteristics, is 

present to an unusual degree and 

distinguishes the case from the typical 

cases covered by the guidelines.’’; and in 

the second paragraph, as amended by 

this amendment, by striking ‘‘Military, 

civic’’ and inserting ‘‘Civic’’. 

Section 5K2.0(d)(1) is amended by 

striking ‘‘third and last sentences’’ and 

inserting ‘‘last sentence’’. 

Reason for Amendment: This multipart amendment revises the 

introductory commentary to Chapter 

Five, Part H (Specific Offender 

Characteristics), amends the policy 

statements relating to age, mental and 

emotional conditions, physical 

condition, and military service, and 

makes conforming changes to § 5K2.0 

(Grounds for Departure). The 

amendment is a result of a review of the 

departure provisions in the Guidelines 

Manual begun by the Commission this 

year. See 74 FR 46478, 46479 

(September 9, 2009). The Commission 

undertook this review, in part, in 

response to an observed decrease in 

reliance on departure provisions in the 

Guidelines Manual in favor of an 

increased use of variances. 

First, the amendment revises the 

introductory commentary to Chapter 

Five, Part H. As amended, the 

introductory commentary explains that 

the purpose of Part H is to provide 

sentencing courts with a framework for 

addressing specific offender 

characteristics in a reasonably 

consistent manner. Using such a 

framework in a uniform manner will 

help ‘‘secure nationwide consistency,’’ 

Gall v. United States, 552 U.S. 38, 49 

(2007), ‘‘avoid unwarranted sentencing 

disparities,’’ 28 U.S.C. 991(b)(1)(B), and 

‘‘promote respect for the law,’’ 18 U.S.C. 

3553(a)(2)(A). 

Accordingly, the amended 

introductory commentary outlines three 

categories of specific offender 

characteristics described in the 

Sentencing Reform Act and the statutory 

and guideline standards that apply to 

consideration of each category. Courts 

must consider ‘‘the history and 

characteristics of the defendant’’ among 

other factors. See 18 U.S.C. 3553(a). 

However, in order to avoid unwarranted 

sentencing disparities, see 18 U.S.C. 

3553(a)(6), 28 U.S.C. 991(b)(1)(B), courts 

should not give specific offender 

characteristics excessive weight. The 

guideline range, which reflects the 

defendant’s criminal conduct and the 

defendant’s criminal history, should 

continue to be ‘‘the starting point and 

the initial benchmark.’’ Gall, supra, at 

49. 

The amended introductory 

commentary also states that the 

Commission will continue to provide 

information to the courts on the 

relevance of specific offender 

characteristics in sentencing, as 

contemplated by the Sentencing Reform 

Act. See, e.g., 28 U.S.C. 995(a)(12)(A). 

The Commission expects that providing 

such information on an ongoing basis 

will promote nationwide consistency in 

the consideration of specific offender 

characteristics by courts and help avoid 

unwarranted sentencing disparities. 

Second, the amendment amends 

several policy statements that cover 

specific offender characteristics 

addressed in 28 U.S.C. 994(d): §§ 5H1.1 

(Age), 5H1.3 (Mental and Emotional 

Conditions), and 5H1.4 (Physical 

Condition, Including Drug or Alcohol 

Dependence or Abuse; Gambling 

Addiction). As amended, these policy 

statements generally provide that age; 

mental and emotional conditions; and 

physical condition or appearance, 

including physique, ‘‘may be relevant in 

determining whether a departure is 

warranted, if [the offender 

characteristic], individually or in 

combination with other offender 

characteristics, is present to an unusual 

degree and distinguishes the case from 

the typical cases covered by the 

guidelines.’’ The Commission adopted 

this departure standard after reviewing 

recent federal sentencing data, trial and 

appellate court case law, scholarly 

literature, public comment and 

testimony, and feedback in various 

forms from federal judges. 

The amendment also amends 

§§ 5H1.3 and 5H1.4 to provide that in 

certain cases described in Application 

Note 6 to § 5C1.1 (Imposition of a Term 

of Imprisonment) a departure may be 

appropriate. 

Third, the amendment amends 

§ 5H1.11 (Military, Civic, Charitable, or 

Public Service; Employment-Related 

Contributions; Record of Prior Good 

Works) to draw a distinction between 

military service and the other 

circumstances covered by that policy 

statement. As amended, the policy 

statement provides that military service 

‘‘may be relevant in determining 

whether a departure is warranted, if the 

military service, individually or in 

combination with other offender 

characteristics, is present to an unusual 

degree and distinguishes the case from 

the typical cases covered by the 

guidelines.’’ The Commission 

determined that applying this departure 

standard to consideration of military 

service is appropriate because such 

service has been recognized as a 

traditional mitigating factor at 

sentencing. See, e.g., Porter v. 

McCollum, 130 S. Ct. 447, 455 (2009) 

(‘‘Our Nation has a long tradition of 

according leniency to veterans in 

recognition of their service, especially 

for those who fought on the front lines 

***’’). 

Finally, the amendment makes 

conforming changes to § 5K2.0 (Grounds 

for Departure). 

3. Amendment: The Commentary to 

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

amended in Note 7 by striking 

‘‘Consideration’’ and inserting ‘‘Based on 

Seriousness of a Prior Conviction.’’ 

The Commentary to § 2L1.2 captioned 

‘‘Application Notes’’ is amended by 

adding at the end the following: 

‘‘8. Departure Based on Cultural 

Assimilation.—There may be cases in which 

a downward departure may be appropriate 

on the basis of cultural assimilation. Such a 

departure should be considered only in cases 

where (A) the defendant formed cultural ties 

primarily with the United States from having 

resided continuously in the United States 

from childhood, (B) those cultural ties 

provided the primary motivation for the 

defendant’s illegal reentry or continued 

presence in the United States, and (C) such 

a departure is not likely to increase the risk 

to the public from further crimes of the 

defendant. 

In determining whether such a departure is 

appropriate, the court should consider, 

among other things, (1) the age in childhood 

at which the defendant began residing 

continuously in the United States, (2) 

whether and for how long the defendant 

attended school in the United States, (3) the 

duration of the defendant’s continued 

residence in the United States, (4) the 

duration of the defendant’s presence outside 

the United States, (5) the nature and extent 

of the defendant’s familial and cultural ties 

inside the United States, and the nature and 

extent of such ties outside the United States, 

(6) the seriousness of the defendant’s 

criminal history, and (7) whether the 

defendant engaged in additional criminal 

activity after illegally reentering the United 

States.’’ 

Reason for Amendment: This 

amendment addresses when a 

downward departure may be 

appropriate in an illegal reentry case 

sentenced under § 2L1.2 (Unlawfully 


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Entering or Remaining in the United 

States) on the basis of the defendant’s 

cultural assimilation to the United 

States. 

Several circuits have upheld 

departures based on cultural 

assimilation. See, e.g., United States v. 

Rodriguez-Montelongo, 263 F.3d 429, 

433 (5th Cir. 2001); United States v. 

Sanchez-Valencia, 148 F.3d 1273, 1274 

(11th Cir. 1998); United States v. 

Lipman, 133 F.3d 726, 730 (9th Cir. 

1998). Other circuits have declined to 

rule on whether such a departure may 

be warranted. See, e.g., United States v. 

Galarza-Payan, 441 F.3d 885, 889 (10th 

Cir. 2006) (‘‘We need not address that 

debate in the altered post-Booker 

landscape.’’); United States v. MelendezTorres, 420 F.3d 45, 51 n.3 (1st Cir. 

2005); see also United States v. Ticas, 

219 F. App’x 44, 45 (2d Cir. 2007) 

(acknowledging that the Second Circuit 

has never recognized cultural 

assimilation as a basis for a downward 

departure). Some circuits, though not 

foreclosing the possibility of cultural 

assimilation departures, have stated that 

district courts are within their 

discretion to deny such departures in 

light of a defendant’s criminal past and 

society’s increased interest in *keeping 

aliens who have committed crimes out 

of the United States following their 

deportation.* United States v. RocheMartinez, 467 F.3d 591, 595 (7th Cir. 

2006); see also Galarza-Payan, supra, at 

889–90 (stating that *in assessing the 

reasonableness of a sentence [] a 

particular defendant’s cultural ties must 

be weighed against other factors such as 

(1) sentencing disparities among 

defendants with similar backgrounds 

and characteristics, and (2) the need for 

the sentence to reflect the seriousness of 

the crime and promote respect for the 

law*). 

In order to promote uniform 

consideration of cultural assimilation by 

courts, the amendment adds an 

application note to § 2L1.2 providing 

that a downward departure may be 

appropriate on the basis of cultural 

assimilation. The application note 

provides that such a departure may be 

appropriate if (A) the defendant formed 

cultural ties primarily with the United 

States from having resided continuously 

in the United States from childhood, (B) 

those cultural ties provided the primary 

motivation for the defendant’s illegal 

reentry or continued presence in the 

United States, and (C) such a departure 

is not likely to increase the risk to the 

public from further crimes of the 

defendant. The application note also 

provides a non-exhaustive list of factors 

the court should consider in 

determining whether such a departure is 

appropriate. 

4. Amendment: Section 1B1.1 is 

amended by redesignating subdivisions 

(a) through (h) as (1) through (8), 

respectively; in subdivision (4) (as so 

redesignated) by striking ‘‘(a)’’ and 

inserting ‘‘(1)’’, and by striking ‘‘(c)’’ and 

inserting ‘‘(3)’’; by striking the first 

paragraph and inserting the following: 

‘‘(a) The court shall determine the kinds 

of sentence and the guideline range as 

set forth in the guidelines (see 18 U.S.C. 

3553(a)(4)) by applying the provisions of 

this manual in the following order, 

except as specifically directed:’’; by 

redesignating subdivision (i) as 

subsection (b) and, in that subsection, 

by striking ‘‘Refer to’’ and inserting ‘‘The 

court shall then consider’’; by striking 

‘‘to’’ before ‘‘any’’; and by adding at the 

end ‘‘See 18 U.S.C. 3553(a)(5).’’; and by 

adding at the end the following: ‘‘(c) The 

court shall then consider the applicable 

factors in 18 U.S.C. 3553(a) taken as a 

whole. See 18 U.S.C. 3553(a).’’. 

The Commentary to § 1B1.1 is 

amended by adding at the end the 

following: 

‘‘Background: The court must impose a 

sentence ‘sufficient, but not greater than 

necessary,’ to comply with the purposes of 

sentencing set forth in 18 U.S.C. 3553(a)(2). 

See 18 U.S.C. 3553(a). Subsections (a), (b), 

and (c) are structured to reflect the three-step 

process used in determining the particular 

sentence to be imposed. If, after step (c), the 

court imposes a sentence that is outside the 

guidelines framework, such a sentence is 

considered a ‘variance’. See Irizarry v. United 

States, 128 S. Ct. 2198, 2200–03 (2008) 

(describing within-range sentences and 

departures as ‘sentences imposed under the 

framework set out in the Guidelines’).’’. 

Reason for Amendment: This 

amendment amends § 1B1.1 

(Application Instructions) in light of 

United States v. Booker, 543 U.S. 220 

(2005), and subsequent case law. 

As explained more fully in Chapter 

One, Part A, Subpart 2 (Continuing 

Evolution and Role of the Guidelines) of 

the Guidelines Manual, a district court 

is required to properly calculate and 

consider the guidelines when 

sentencing. See 18 U.S.C. 3553(a)(4); 

Booker, 543 U.S. at 264 (‘‘The district 

courts, while not bound to apply the 

Guidelines, must * * * take them into 

account when sentencing.’’); Rita v. 

United States, 551 U.S. 338, 347–48 

(2007) (stating that a district court 

should begin all sentencing proceedings 

by correctly calculating the applicable 

Guidelines range); Gall v. United States, 

552 U.S. 38, 49 (2007) (‘‘As a matter of 

administration and to secure nationwide 

consistency, the Guidelines should be 

the starting point and the initial 

benchmark.’’). 

After determining the guideline range, 

the district court should refer to the 

Guidelines Manual and consider 

whether the case warrants a departure. 

See 18 U.S.C. 3553(a)(5). ‘‘‘Departure’ is 

a term of art under the Guidelines and 

refers only to non-Guidelines sentences 

imposed under the framework set out in 

the Guidelines.’’ Irizarry v. United 

States, 128 S.Ct. 2198, 2202 (2008). A 

‘‘variance’’—i.e., a sentence outside the 

guideline range other than as provided 

for in the Guidelines Manual—is 

considered by the court only after 

departures have been considered. 

Most circuits agree on a three-step 

approach, including the consideration 

of departure provisions in the 

Guidelines Manual, in determining the 

sentence to be imposed. See United 

States v. Dixon, 449 F.3d 194, 203–04 

(1st Cir. 2006) (court must consider ‘‘any 

applicable departures’’); United States v. 

Selioutsky, 409 F.3d 114, 118 (2d Cir. 

2005) (court must consider ‘‘available 

departure authority’’); United States v. 

Jackson, 467 F.3d 834, 838 (3d Cir. 

2006) (same); United States v. Moreland, 

437 F.3d 424, 433 (4th Cir. 2006) 

(departures ‘‘remain an important part of 

sentencing even after Booker’’); United 

States v. Tzep-Mejia, 461 F.3d 522, 525 

(5th Cir. 2006) (‘‘Post-Booker case law 

recognizes three types of sentences 

under the new advisory sentencing 

regime: (1) A sentence within a properly 

calculated Guideline range; (2) a 

sentence that includes an upward or 

downward departure as allowed by the 

Guidelines, which sentence is also a 

Guideline sentence; or (3) a nonGuideline sentence which is either 

higher or lower than the relevant 

Guideline sentence.’’ (internal footnote 

and citation omitted)); United States v. 

McBride, 434 F.3d 470, 476 (6th Cir. 

2006) (district court ‘‘still required to 

consider * * * whether a Chapter 5 

departure is appropriate’’); United States 

v. Hawk Wing, 433 F.3d 622, 631 (8th 

Cir. 2006) (‘‘the district court must 

decide if a traditional departure is 

appropriate’’, and after that must 

consider a variance (internal quotation 

omitted)); United States v. Robertson, 

568 F.3d 1203, 1210 (10th Cir. 2009) 

(district courts must continue to apply 

departures); United States v. Jordi, 418 

F.3d 1212, 1215 (11th Cir. 2005) (stating 

that ‘‘the application of the guidelines is 

not complete until the departures, if 

any, that are warranted are 

appropriately considered’’). But see 

United States v. Johnson, 427 F.3d 423, 

426 (7th Cir. 2006) (stating that 

departures are ‘‘obsolete’’). 

The amendment resolves the circuit 

conflict and adopts the three-step 

approach followed by a majority of 


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circuits in determining the sentence to 

be imposed. The amendment 

restructures § 1B1.1 into three 

subsections to reflect the three-step 

process. As amended, subsection (a) 

addresses how to apply the provisions 

in the Guidelines Manual to properly 

determine the kinds of sentence and the 

guideline range. Subsection (b) 

addresses the need to consider the 

policy statements and commentary to 

determine whether a departure is 

warranted. Subsection (c) addresses the 

need to consider the applicable factors 

under 18 U.S.C. 3553(a) taken as a 

whole in determining the appropriate 

sentence. The amendment also adds 

background commentary referring to the 

statutory requirements of 18 U.S.C. 

3553(a) and defining the term ‘‘variance’’ 

as ‘‘a sentence that is outside the 

guidelines framework’’. 

5. Amendment: Section 4A1.1 is 

amended by striking ‘‘items (a) through 

(f)’’ and inserting ‘‘subsections (a) 

through (e)’’; in subsection (c) by 

striking ‘‘item’’ and inserting 

‘‘subsection’’; by striking subsection (e) 

and redesignating subsection (f) as (e); 

and in subsection (e) (as so 

redesignated) by striking ‘‘item’’ and 

inserting ‘‘subsection’’. 

The Commentary to § 4A1.1 captioned 

‘‘Application Notes’’ is amended by 

striking ‘‘item’’ and inserting 

‘‘subsection’’ each place it appears; by 

striking Note 5 and redesignating Note 

6 as Note 5; and in Note 5 (as so 

redesignated) by striking ‘‘(f)’’ and 

inserting ‘‘(e)’’ each place it appears. 

The Commentary to § 4A1.1 captioned 

‘‘Background’’ is amended by striking 

‘‘Subdivisions’’ and inserting 

‘‘Subsections’’; by striking ‘‘implements 

one measure of recency by adding’’ and 

inserting ‘‘adds’’; and by striking the 

paragraph that begins ‘‘Section 

4A1.1(e)’’. 

Section 4A1.2 is amended in 

subsection (a)(2) by striking ‘‘(f)’’ and 

inserting ‘‘(e)’’; in subsection (k)(2) by 

striking subparagraph (A) and by 

striking ‘‘(B)’’; in subsection (l) by 

striking ‘‘(f)’’ and inserting ‘‘(e)’’, and by 

striking ‘‘; § 4A1.1(e) shall not apply’’; in 

subsection (n) by striking ‘‘and (e)’’; and 

in subsection (p) by striking ‘‘(f)’’ and 

inserting ‘‘(e)’’. 

The Commentary to § 4A1.2 captioned 

‘‘Application Notes’’ is amended in Note 

12(A) by striking ‘‘subdivision’’ and 

inserting ‘‘subsection’’. 

Reason for Amendment: This 

amendment addresses a factor included 

in the calculation of the criminal history 

score in Chapter Four of the Guidelines 

Manual. Specifically, this amendment 

eliminates the ‘‘recency’’ points 

provided in subsection (e) of § 4A1.1 

(Criminal History Category). Under 

§ 4A1.1(e), one or two points are added 

to the criminal history score if the 

defendant committed the instant offense 

less than two years after release from 

imprisonment on a sentence counted 

under subsection (a) or (b) or while in 

imprisonment or escape status on such 

a sentence. In addition to recency, 

subsections (a), (b), (c), (d), and (f) add 

points to the criminal history score to 

account for the seriousness of the prior 

offense and the status of the defendant. 

These other factors remain included in 

the criminal history score after the 

amendment. 

The amendment is a result of the 

Commission’s continued review of 

criminal history issues. This multi-year 

review was prompted in part because 

criminal history issues are often cited by 

sentencing courts as reasons for 

imposing non-government sponsored 

below range sentences, particularly in 

cases in which recency points were 

added to the criminal history score 

under § 4A1.1(e). 

As part of its review, the Commission 

undertook analyses to determine the 

extent to which recency points 

contribute to the ability of the criminal 

history score to predict the defendant’s 

risk of recidivism. See generally USSG 

Ch. 4, Pt. A, intro. comment (‘‘To protect 

the public from further crimes of the 

particular defendant, the likelihood of 

recidivism and future criminal behavior 

must be considered.’’). Recent research 

isolating the effect of § 4A1.1(e) on the 

predictive ability of the criminal history 

score indicated that consideration of 

recency only minimally improves the 

predictive ability. 

In addition, the Commission received 

public comment and testimony 

suggesting that the recency of the 

instant offense to the defendant’s release 

from imprisonment does not necessarily 

reflect increased culpability. Public 

comment and testimony indicated that 

defendants who recidivate tend to do so 

relatively soon after being released from 

prison but suggested that, for many 

defendants, this may reflect the 

challenges to successful reentry after 

imprisonment rather than increased 

culpability. 

Finally, Commission data indicated 

that many of the cases in which recency 

points apply are sentenced under 

Chapter Two guidelines that have 

provisions based on criminal history. 

The amendment responds to suggestions 

that recency points are not necessary to 

adequately account for criminal history 

in such cases. 

6. Amendment: The Commentary to 

§ 2H1.1 captioned ‘‘Statutory 

Provisions’’ is amended by inserting 

‘‘249,’’ after ‘‘248,’’. 

The Commentary to § 2H1.1 captioned 

‘‘Application Notes’’ is amended in Note 

4 by inserting ‘‘gender identity,’’ after 

‘‘gender,’’. 

Section 3A1.1(a) is amended by 

inserting ‘‘gender identity,’’ after 

‘‘gender,’’. 

The Commentary to § 3A1.1 captioned 

‘‘Application Notes’’ is amended in Note 

3 by inserting ‘‘gender identity,’’ after 

‘‘gender,’’; and by adding after Note 4 the 

following: 

‘‘5. For purposes of this guideline, ‘gender 

identity’ means actual or perceived genderrelated characteristics. See 18 U.S.C. 

249(c)(4).’’. 

The Commentary to § 3A1.1 captioned 

‘‘Background’’ is amended in the first 

paragraph by striking ‘‘(i.e.’’ and all that 

follows through ‘‘victim)’’; and by 

adding at the end of that paragraph the 

following: ‘‘In section 4703(a) of Public 

Law 111–84, Congress broadened the 

scope of that directive to include gender 

identity; to reflect that congressional 

action, the Commission has broadened 

the scope of this enhancement to 

include gender identity.’’. 

Appendix A (Statutory Index) is 

amended by inserting after the line 

referenced to 18 U.S.C. 247 the 

following: ‘‘18 U.S.C. 249 2H1.1’’; and by 

inserting after the line referenced to 18 

U.S.C. 1369 the following: ‘‘18 U.S.C. 

1389 2A2.2, 2A2.3, 2B1.1’’. 

Reason for Amendment: This 

amendment responds to the Matthew 

Shepard and James Byrd, Jr. Hate 

Crimes Prevention Act (division E of 

Pub. L. 111–84) (the ‘‘Act’’). The Act 

created two new offenses and amended 

a 1994 directive to the Commission 

regarding crimes motivated by hate. 

The first new offense, 18 U.S.C. 249 

(Hate crime acts), makes it unlawful, 

whether or not acting under color of 

law, to willfully cause bodily injury to 

any person or, through the use of fire, 

a firearm, a dangerous weapon, or an 

explosive or incendiary device, to 

attempt to cause bodily injury to any 

person because of the actual or 

perceived race, color, religion, national 

origin, gender, sexual orientation, 

gender identity, or disability of any 

person. A person who violates 18 U.S.C. 

249 is subject to a term of imprisonment 

of up to 10 years or, if the offense 

includes kidnapping, aggravated sexual 

abuse, or an attempt to kill, or if death 

results from the offense, to 

imprisonment for any term of years or 

life. The amendment amends Appendix 

A (Statutory Index) to refer offenses 

under 18 U.S.C. 249 to § 2H1.1 (Offenses 

Involving Individual Rights) because 


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that guideline covers similar offenses, 

e.g., 18 U.S.C. 241 (Conspiracy against 

rights) and 242 (Deprivation of rights 

under color of law), and contains 

appropriate enhancements to account 

for aggravating circumstances that may 

be involved in a section 249 offense, 

e.g., subsection (b)(1), which provides a 

6-level increase if the offense was 

committed under color of law. 

The Act also amended section 280003 

of the Violent Crime Control and Law 

Enforcement Act of 1994 (Pub. L. 103– 

322; 28 U.S.C. 994 note), which contains 

a directive to the Commission regarding 

hate crimes. The Commission 

implemented that directive by 

promulgating subsection (a) of § 3A1.1 

(Hate Crime Motivation or Vulnerable 

Victim). See USSG App. C, Amendment 

521 (effective November 1, 1995). The 

Act broadened the definition of ‘‘hate 

crime’’ in section 280003(a) to include 

crimes motivated by actual or perceived 

‘‘gender identity’’, which has the effect 

of expanding the scope of the directive 

in section 280003(b) so that it now 

requires the Commission to provide an 

enhancement for crimes motivated by 

actual or perceived ‘‘gender identity’’. To 

reflect the broadened definition, the 

amendment amends § 3A1.1 so that the 

enhancement in subsection (a) covers 

crimes motivated by actual or perceived 

‘‘gender identity’’ and makes conforming 

changes to §§ 2H1.1. The amendment 

also deletes as unnecessary the 

parenthetical in the Background to 

§ 3A1.1, which provided an example of 

*hate crime motivation*. 

The second new offense, 18 U.S.C. 

1389 (Prohibition on attacks on United 

States servicemen on account of 

service), makes it unlawful to 

knowingly assault or batter a United 

States serviceman or an immediate 

family member of a United States 

serviceman, or to knowingly destroy or 

injure the property of such serviceman 

or immediate family member, on the 

account of the military service of that 

serviceman or the status of that 

individual as a United States 

serviceman. A person who violates 18 

U.S.C. 1389 is subject to a term of 

imprisonment of not more than 2 years 

in the case of a simple assault, or 

damage of not more than $500, of not 

more than 5 years in the case of damage 

of more than $500, or of not less than 

6 months nor more than 10 years in the 

case of a battery, or an assault resulting 

in bodily injury. The Commission 

determined that offenses under 18 

U.S.C. 1389 are similar to offenses 

involving assault or property damage 

that are already referenced to §§ 2A2.2 

(Aggravated Assault), 2A2.3 (Minor 

Assault), and 2B1.1 (Theft, Property 

Destruction, and Fraud) and therefore 

amended Appendix A (Statutory Index) 

to refer the new offense to those 

guidelines. 

7. Amendment: Section 8B2.1(b)(4) is 

amended by striking ‘‘subdivision’’ and 

inserting ‘‘subparagraph’’ each place it 

appears. 

The Commentary to § 8B2.1 captioned 

‘‘Application Notes’’ is amended in Note 

2(D) by striking ‘‘subdivision’’ and 

inserting ‘‘subparagraph’’. 

The Commentary to § 8B2.1 captioned 

‘‘Application Notes’’ is amended by 

redesignating Note 6 as Note 7, and by 

inserting after Note 5 the following: ‘‘6. 

Application of Subsection (b)(7).— 

Subsection (b)(7) has two aspects. 

First, the organization should respond 

appropriately to the criminal conduct. 

The organization should take reasonable 

steps, as warranted under the 

circumstances, to remedy the harm 

resulting from the criminal conduct. 

These steps may include, where 

appropriate, providing restitution to 

identifiable victims, as well as other 

forms of remediation. Other reasonable 

steps to respond appropriately to the 

criminal conduct may include selfreporting and cooperation with 

authorities. 

Second, the organization should act 

appropriately to prevent further similar 

criminal conduct, including assessing 

the compliance and ethics program and 

making modifications necessary to 

ensure the program is effective. The 

steps taken should be consistent with 

subsections (b)(5) and (c) and may 

include the use of an outside 

professional advisor to ensure adequate 

assessment and implementation of any 

modifications.’’; and in Note 7, as 

redesignated by this amendment, by 

striking ‘‘subdivision’’ and inserting 

‘‘subparagraph’’ each place it appears. 

Section 8C2.5(f)(3) is amended in 

subparagraph (A) by striking 

‘‘subdivision (B)’’ and inserting 

‘‘subparagraphs (B) and (C)’’; and by 

adding at the end the following: 

‘‘(C) Subparagraphs (A) and (B) shall not 

apply if— 

(i) The individual or individuals with 

operational responsibility for the compliance 

and ethics program (see § 8B2.1(b)(2)(C)) 

have direct reporting obligations to the 

governing authority or an appropriate 

subgroup thereof (e.g., an audit committee of 

the board of directors); 

(ii) The compliance and ethics program 

detected the offense before discovery outside 

the organization or before such discovery was 

reasonably likely; 

(iii) The organization promptly reported 

the offense to appropriate governmental 

authorities; and 

(iv) No individual with operational 

responsibility for the compliance and ethics 

program participated in, condoned, or was 

willfully ignorant of the offense.’’. 

The Commentary to § 8C2.5 captioned 

‘‘Application Notes’’ is amended in Note 

10 in the second sentence by inserting 

‘‘or (f)(3)(C)(iii)’’ after ‘‘subsection (f)(2)’’; 

by redesignating Notes 11 through 14 as 

Notes 12 through 15, respectively; and 

by inserting after Note 10 the following: 

11. For purposes of subsection (f)(3)(C)(i), 

an individual has ‘direct reporting 

obligations’ to the governing authority or an 

appropriate subgroup thereof if the 

individual has express authority to 

communicate personally to the governing 

authority or appropriate subgroup thereof (A) 

promptly on any matter involving criminal 

conduct or potential criminal conduct, and 

(B) no less than annually on the 

implementation and effectiveness of the 

compliance and ethics program. 

Section 8D1.4 is amended by striking 

subsections (b) and (c) and inserting the 

following: 

(b) If probation is imposed under § 8D1.1, 

the following conditions may be appropriate: 

(1) The organization shall develop and 

submit to the court an effective compliance 

and ethics program consistent with § 8B2.1 

(Effective Compliance and Ethics Program). 

The organization shall include in its 

submission a schedule for implementation of 

the compliance and ethics program. 

(2) Upon approval by the court of a 

program referred to in paragraph (1), the 

organization shall notify its employees and 

shareholders of its criminal behavior and its 

program referred to in paragraph (1). Such 

notice shall be in a form prescribed by the 

court. 

(3) The organization shall make periodic 

submissions to the court or probation officer, 

at intervals specified by the court, (A) 

reporting on the organization’s financial 

condition and results of business operations, 

and accounting for the disposition of all 

funds received, and (B) reporting on the 

organization’s progress in implementing the 

program referred to in paragraph (1). Among 

other things, reports under subparagraph (B) 

shall disclose any criminal prosecution, civil 

litigation, or administrative proceeding 

commenced against the organization, or any 

investigation or formal inquiry by 

governmental authorities of which the 

organization learned since its last report. 

(4) The organization shall notify the court 

or probation officer immediately upon 

learning of (A) any material adverse change 

in its business or financial condition or 

prospects, or (B) the commencement of any 

bankruptcy proceeding, major civil litigation, 

criminal prosecution, or administrative 

proceeding against the organization, or any 

investigation or formal inquiry by 

governmental authorities regarding the 

organization. 

(5) The organization shall submit to: (A) A 

reasonable number of regular or 

unannounced examinations of its books and 

records at appropriate business premises by 

the probation officer or experts engaged by 

the court; and (B) interrogation of 


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knowledgeable individuals within the 

organization. Compensation to and costs of 

any experts engaged by the court shall be 

paid by the organization. 

(6) The organization shall make periodic 

payments, as specified by the court, in the 

following priority: (A) Restitution; (B) fine; 

and (C) any other monetary sanction.’’. 

The Commentary to § 8D1.4 captioned 

‘‘Application Note’’ is amended in Note 

1 by striking ‘‘(a)(3) through (6)’’; and by 

striking ‘‘(c)(3)’’ and inserting ‘‘(b)(3)’’. 

Reason for Amendment: This 

amendment makes several changes to 

Chapter Eight of the Guidelines Manual 

regarding the sentencing of 

organizations. 

First, the amendment amends the 

Commentary to § 8B2.1 (Effective 

Compliance and Ethics Program) by 

adding an application note that clarifies 

the remediation efforts required to 

satisfy the seventh minimal requirement 

for an effective compliance and ethics 

program under subsection (b)(7). 

Subsection (b)(7) requires an 

organization, after criminal conduct has 

been detected, to take reasonable steps 

(1) to respond appropriately to the 

criminal conduct and (2) to prevent 

further similar criminal conduct. 

The new application note describes 

the two aspects of subsection (b)(7). 

With respect to the first aspect, the 

application note provides that the 

organization should take reasonable 

steps, as warranted under the 

circumstances, to remedy the harm 

resulting from the criminal conduct. 

The application note further provides 

that such steps may include, where 

appropriate, providing restitution to 

identifiable victims, other forms of 

remediation, and self-reporting and 

cooperation with authorities. With 

respect to the second aspect, the 

application note provides that an 

organization should assess the 

compliance and ethics program and 

make modifications necessary to ensure 

the program is effective. The application 

note further provides that such steps 

should be consistent with § 8B2.1(b)(5) 

and (c), which also require assessment 

and modification of the program, and 

may include the use of an outside 

professional advisor to ensure adequate 

assessment and implementation of any 

modifications. 

This application note was added in 

response to public comment and 

testimony suggesting that further 

guidance regarding subsection (b)(7) 

may encourage organizations to take 

reasonable steps upon discovery of 

criminal conduct. The steps outlined by 

the application note are consistent with 

factors considered by enforcement 

agencies in evaluating organizational 

compliance and ethics practices. 

Second, the amendment amends 

subsection (f) of § 8C2.5 (Culpability 

Score) to create a limited exception to 

the general prohibition against applying 

the 3-level decrease for having an 

effective compliance and ethics program 

when an organization’s high-level or 

substantial authority personnel are 

involved in the offense. Specifically, the 

amendment adds subsection (f)(3)(C), 

which allows an organization to receive 

the decrease if the organization meets 

four criteria: (1) The individual or 

individuals with operational 

responsibility for the compliance and 

ethics program have direct reporting 

obligations to the organization’s 

governing authority or appropriate 

subgroup thereof; (2) the compliance 

and ethics program detected the offense 

before discovery outside the 

organization or before such discovery 

was reasonably likely; (3) the 

organization promptly reported the 

offense to the appropriate governmental 

authorities; and (4) no individual with 

operational responsibility for the 

compliance and ethics program 

participated in, condoned, or was 

willfully ignorant of the offense. 

The new subsection (f)(3)(C) responds 

to concerns expressed in public 

comment and testimony that the general 

prohibition in § 8C2.5(f)(3) operates too 

broadly and that internal and external 

reporting of criminal conduct could be 

better encouraged by providing an 

exception to that general prohibition in 

appropriate cases. 

The amendment also adds an 

application note that describes the 

‘‘direct reporting obligations’’ necessary 

to meet the first criterion under 

§ 8C2.5(f)(3)(C). The application note 

provides that an individual has ‘‘direct 

reporting obligations’’ if the individual 

has express authority to communicate 

personally to the governing authority 

‘‘promptly on any matter involving 

criminal conduct or potential criminal 

conduct’’ and ‘‘no less than annually on 

the implementation and effectiveness of 

the compliance and ethics program’’. 

The application note responds to public 

comment and testimony regarding the 

challenges operational compliance 

personnel may face when seeking to 

report criminal conduct to the governing 

authority of an organization and 

encourages compliance and ethics 

policies that provide operational 

compliance personnel with access to the 

governing authority when necessary. 

Third, the amendment amends 

§ 8D1.4 (Recommended Conditions of 

Probation—Organizations (Policy 

Statement)) to augment and simplify the 

recommended conditions of probation 

for organizations. The amendment 

removes the distinction between 

conditions of probation imposed solely 

to enforce a monetary penalty and 

conditions of probation imposed for any 

other reason so that all conditional 

probation terms are available for 

consideration by the court in 

determining an appropriate sentence. 

Finally, the amendment makes 

technical and conforming changes to 

various provisions in Chapter Eight. 

8. Amendment: Section 2B1.1(c)(4) is 

amended by inserting ‘‘or a 

paleontological resource’’ after 

‘‘resource’’; and by inserting ‘‘or 

Paleontological Resources’’ after 

‘‘Heritage Resources’’ each place it 

appears. 

The Commentary to § 2B1.1 captioned 

‘‘Application Notes’’ is amended in Note 

1 by inserting after the paragraph that 

begins ‘‘‘National cemetery’ means’’ the 

following: 

‘‘ ‘Paleontological resource’ has the 

meaning given that term in Application Note 

1 of the Commentary to § 2B1.5 (Theft of, 

Damage to, or Destruction of, Cultural 

Heritage Resources or Paleontological 

Resources; Unlawful Sale, Purchase, 

Exchange, Transportation, or Receipt of 

Cultural Heritage Resources or 

Paleontological Resources).’’. 

The Commentary to § 2B1.1 captioned 

‘‘Application Notes’’ is amended in Note 

14(A) by inserting ‘‘and 18 U.S.C. 1348’’ 

after ‘‘7 U.S.C. 1 et seq.)’’. 

Section 2B1.5 is amended in the 

heading by inserting ‘‘or Paleontological 

Resources’’ after ‘‘Heritage Resources’’ 

each place it appears. 

Section 2B1.5(b) is amended in each 

of paragraphs (1) and (2) by inserting ‘‘or 

paleontological resource’’ after ‘‘heritage 

resource’’; and in paragraph (5) by 

inserting ‘‘or paleontological resources’’ 

after ‘‘heritage resources’’. 

The Commentary to § 2B1.5 captioned 

‘‘Statutory Provisions’’ is amended by 

inserting ‘‘470aaa–5,’’ after ‘‘16 U.S.C. 

§§ ’’. 

The Commentary to § 2B1.5 captioned 

‘‘Application Notes’’ is amended in Note 

1 by redesignating subparagraphs (A) 

through (G) as (i) through (vii), 

respectively; by striking ‘‘ ‘Cultural 

Heritage Resource’ Defined.—For 

purposes of this guideline, ‘cultural 

heritage resource’ means any of the 

following:’’ and inserting: 

‘‘Definitions.—For purposes of this 

guideline: 

(A) ‘Cultural heritage resource’ means 

any of the following:’’; by striking ‘‘(A)’’ 

before ‘‘has the meaning’’ and inserting 

‘‘(I)’’; by striking ‘‘(B)’’ before ‘‘includes’’ 

and inserting ‘‘(II)’’; and by adding at the 

end the following: 


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‘‘(B) ‘Paleontological resource’ has the 

meaning given such term in 16 U.S.C. 

470aaa.’’. 

The Commentary to § 2B1.5 captioned 

‘‘Application Notes’’ is amended in Note 

2 by striking ‘‘Cultural Heritage’’ both 

places it appears; by striking ‘‘cultural 

heritage’’ each place it appears; and by 

inserting ‘‘, e.g.,’’ after ‘‘See’’ each place 

it appears. 

The Commentary to § 2B1.5 captioned 

‘‘Application Notes’’ is amended in Note 

5(B) by striking ‘‘cultural heritage’’; in 

Note 6(A) by inserting ‘‘or 

paleontological resources’’ after 

‘‘resources’’, and by striking ‘‘cultural 

heritage’’ after ‘‘involving a’’ each place 

it appears; in Note 8 by striking 

‘‘cultural heritage’’ each place it appears; 

and in Note 9 by inserting ‘‘or 

paleontological resources’’ after 

‘‘resources’’ the first place it appears; 

and by inserting ‘‘or paleontological 

resources’’ after ‘‘resources)’’. 

Section 2D1.11(e) is amended in 

subdivisions (1)–(10) by inserting the 

following list I chemicals in the 

appropriate place in alphabetical order 

by subdivision as follows: 

(1) ‘‘1.3 KG or more of Iodine;’’, 

(2) ‘‘At least 376.2 G but less than 1.3 

KG of Iodine;’’, 

(3) ‘‘At least 125.4 G but less than 

376.2 G of Iodine;’’, 

(4) ‘‘At least 87.8 G but less than 125.4 

G of Iodine;’’, 

(5) ‘‘At least 50.2 G but less than 87.8 

G of Iodine;’’, 

(6) ‘‘At least 12.5 G but less than 50.2 

G of Iodine;’’, 

(7) ‘‘At least 10 G but less than 12.5 

G of Iodine;’’, 

(8) ‘‘At least 7.5 G but less than 10 G 

of Iodine;’’, 

(9) ‘‘At least 5 G but less than 7.5 G 

of Iodine;’’, 

(10) ‘‘Less than 5 G of Iodine;’’; and in 

subdivisions (2)–(10), in list II 

chemicals, by striking the lines 

referenced to ‘‘Iodine’’, including the 

period, and in the lines referenced to 

‘‘Toluene’’ by striking the semicolon and 

inserting a period. 

Appendix A (Statutory Index) is 

amended by inserting after the line 

referenced to 16 U.S.C. 413 the 

following: ‘‘16 U.S.C. 470aaa–5 2B1.1, 

2B1.5’’; and by inserting after the line 

referenced to 42 U.S.C. 1396h(b)(2) the 

following: ‘‘42 U.S.C. 1396w–2 2H3.1’’. 

Reason for Amendment: This multipart amendment responds to 

miscellaneous issues arising from 

legislation recently enacted and other 

miscellaneous guideline application 

issues. 

First, the amendment responds to the 

Fraud Enforcement and Recovery Act of 

2009, Public Law 111–21, which 

broadened 18 U.S.C. 1348, a securities 

fraud statute, to cover commodities 

fraud. Offenses under 18 U.S.C. 1348 are 

referenced in Appendix A (Statutory 

Index) to § 2B1.1 (Larceny, 

Embezzlement, and Other Forms of 

Theft; Offenses Involving Stolen 

Property; Property Damage or 

Destruction; Fraud and Deceit; Forgery; 

Offenses Involving Altered or 

Counterfeit Instruments Other than 

Counterfeit Bearer Obligations of the 

United States). Section 2B1.1 includes 

an enhancement at subsection (b)(17)(B) 

that applies when specified persons 

who have fiduciary duties violate 

commodities law. ‘‘Commodities law’’ is 

defined in Application Note 14 to mean 

the Commodities Exchange Act (7 

U.S.C. 1 et seq.), including the rules, 

regulations, and orders issued by the 

Commodity Futures Trading 

Commission. The amendment adds 18 

U.S.C. 1348 to the definition of 

‘‘commodities law’’ for purposes of 

subsection (b)(17)(B). The Commission 

determined that including 18 U.S.C. 

1348 within the scope of subsection 

(b)(17)(B) is appropriate to reflect the 

expanded scope of the statute. 

Second, the amendment responds to 

the Omnibus Public Land Management 

Act of 2009, Public Law 111–11, which 

created a new offense at 16 U.S.C. 

470aaa–5 making it unlawful to remove, 

damage, alter, traffic in, or make a false 

record relating to a paleontological 

resource on federal land. The 

amendment amends Appendix A 

(Statutory Index) to refer offenses under 

16 U.S.C. 470aaa–5 to 2B1.1 and 2B1.5 

(Theft of, Damage to, or Destruction of, 

Cultural Heritage Resources; Unlawful 

Sale, Purchase, Exchange, 

Transportation, or Receipt of Cultural 

Heritage Resources) because such 

offenses are similar either to offenses 

involving cultural heritage resources or, 

to the extent they involve false records, 

to fraud offenses. The amendment also 

makes technical and conforming 

changes to §§ 2B1.1 and 2B1.5. 

Third, the amendment responds to the 

Children’s Health Insurance Program 

Reauthorization Act of 2009, Public Law 

111–3, which created a new Class A 

misdemeanor offense at 42 U.S.C. 

1396w–2 regarding the unlawful 

disclosure of certain protected 

information related to social security 

eligibility. The amendment amends 

Appendix A (Statutory Index) to refer 

offenses under 42 U.S.C. 1396w–2 to 

§ 2H3.1 (Interception of 

Communications; Eavesdropping; 

Disclosure of Certain Private or 

Protected Information) because such 

offenses involve invasions of privacy. 

Fourth, the amendment responds to a 

regulatory change in which iodine was 

upgraded from a List II chemical to a 

List I chemical. Offenses involving 

listed chemicals are sentenced under 

§ 2D1.11 (Unlawfully Distributing, 

Importing, Exporting or Possessing a 

Listed Chemical; Attempt or 

Conspiracy). Because the maximum 

base offense level for List I chemicals 

(level 30) is higher than that for List II 

chemicals (level 28), the amendment 

increases the maximum base offense 

level for offenses involving iodine to 

level 30 and specifies the amount of 

iodine needed (1.3 kilograms) for base 

offense level 30 to apply. 

9. Amendment: The Commentary to 

§ 1B1.3 captioned ‘‘Application Notes’’ 

is amended in Note 2 in the second 

paragraph by striking ‘‘(i)’’ and inserting 

‘‘(A)’’; and by striking ‘‘(ii)’’ and inserting 

‘‘(B)’’; in Note 6, in the first paragraph by 

striking ‘‘ ‘is’’ and inserting ‘‘ ‘was’’; and 

by striking ‘‘was committed by the 

means set forth in’’ and inserting 

‘‘involved conduct described in’’. 

The Commentary to § 1B1.8 captioned 

‘‘Application Notes’’ is amended in Note 

2 by striking ‘‘Probation Service’’ and 

inserting ‘‘probation office’’. 

The Commentary to § 1B1.9 captioned 

‘‘Application Notes’’ is amended in Note 

1 by inserting ‘‘or for which no 

imprisonment is authorized. See 18 

U.S.C. 3559’’ after ‘‘not more than five 

days’’. 

The Commentary to § 1B1.11 

captioned ‘‘Application Notes’’ is 

amended in Note 2 by striking 

‘‘Guideline’’ and inserting ‘‘Guidelines’’. 

The Commentary to § 1B1.13 

captioned ‘‘Application Notes’’ is 

amended in Note 1 by striking 

‘‘Subsection’’ and inserting 

‘‘Subdivision’’. 

The Commentary to § 2A1.1 captioned 

‘‘Application Notes’’ is amended in Note 

1 by inserting ‘‘, see § 2A4.1(c)(1)’’ after 

‘‘occurs’’; and by inserting ‘‘, see 

§ 2E1.3(a)(2)’’ after ‘‘racketeering’’. 

The Commentary to § 2A3.2 captioned 

‘‘Application Notes’’ is amended in Note 

5 by striking ‘‘kidnaping’’ and inserting 

‘‘kidnapping’’ each place it appears. 

The Commentary to § 2A3.3 captioned 

‘‘Application Notes’’ is amended in Note 

1 by inserting ‘‘years’’ before ‘‘; (B)’’. 

The Commentary to § 2A3.5 captioned 

‘‘Application Notes’’ is amended in Note 

1 by striking ‘‘those terms in 42 U.S.C. 

16911(2), (3) and (4), respectively’’ and 

inserting ‘‘the terms ‘tier I sex offender’, 

‘tier II sex offender’, and ‘tier III sex 

offender’, respectively, in 42 U.S.C. 

16911’’. 

The Commentary to § 2B1.4 captioned 

‘‘Application Notes’’ is amended in Note 

1 by striking ‘‘Subsection of’’. 


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The Commentary to § 2B1.5 captioned 

‘‘Application Notes’’ is amended in Note 

1 by striking ‘‘299’’ and inserting ‘‘229’’; 

and by striking ‘‘section 2(c) of Public 

Law 99–652 (40 U.S.C. 1002(c))’’ and 

inserting ‘‘40 U.S.C. 8902(a)(1)’’. 

The Commentary to § 2B3.1 captioned 

‘‘Application Notes’’ is amended in Note 

2 by striking ‘‘(d)’’ and inserting ‘‘(D)’’. 

The Commentary to § 2B4.1 captioned 

‘‘Background’’ is amended in the fourth 

paragraph by striking ‘‘was recently 

increased from two to’’ and inserting 

‘‘is’’; and by striking ‘‘Violations’’ and all 

that follows through ‘‘to the Medicaid 

program.’’ and inserting ‘‘Violations of 

42 U.S.C. 1320a–7b involve the offer or 

acceptance of a payment to refer an 

individual for services or items paid for 

under a federal health care program 

(e.g., the Medicare and Medicaid 

programs).’’. 

The Commentary to § 2B6.1 captioned 

‘‘Background’’ is amended by striking 

‘‘§§ 511 and 553(a)(2)’’ and inserting 

‘‘§ 511’’; and by inserting ‘‘§ 553(a)(2) 

and’’ before ‘‘2321’’. 

The Commentary to § 2C1.1 captioned 

‘‘Application Notes’’ is amended in Note 

3 by striking ‘‘(A)’’ after ‘‘(b)(2)’’. 

The Commentary to § 2C1.2 captioned 

‘‘Application Notes’’ is amended in Note 

4 by striking ‘‘or’’ before ‘‘Trust’’ and 

inserting ‘‘of’’. 

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

of Notes (H) and (I) to the Drug Quantity 

Table by striking ‘‘(25)’’ and inserting 

‘‘(30)’’. 

The Commentary to § 2D1.11 

captioned ‘‘Application Notes’’ is 

amended in Note 6 by striking ‘‘or’’ after 

‘‘1319(c),’’; by striking ‘‘§ 5124,’’; and by 

inserting after ‘‘9603(b)’’ the following: ‘‘, 

and 49 U.S.C. 5124 (relating to 

violations of laws and regulations 

enforced by the Department of 

Transportation with respect to the 

transportation of hazardous material)’’. 

The Commentary to § 2D1.12 

captioned ‘‘Application Notes’’ is 

amended in Note 3 by striking ‘‘or’’ after 

‘‘1319(c),’’; by striking ‘‘§ 5124,’’; and by 

inserting after ‘‘9603(b)’’ the following: ‘‘, 

and 49 U.S.C. 5124 (relating to 

violations of laws and regulations 

enforced by the Department of 

Transportation with respect to the 

transportation of hazardous material)’’. 

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

striking ‘‘(3)’’ and inserting ‘‘(5)’’ both 

places it appears. 

The Commentary to § 2D2.1 captioned 

‘‘Background’’ is amended in the last 

paragraph by striking ‘‘Section 6371 of 

the Anti-Drug Abuse Act of 1988’’ and 

inserting ‘‘21 U.S.C. 844(a)’’ both places 

it appears. 

The Commentary to § 2G3.1 captioned 

‘‘Application Notes’’ is amended in Note 

1 in the paragraph that begins 

‘‘ ‘Distribution’ means’’ by inserting 

‘‘transmission,’’ after ‘‘production,’’. 

Section 2H4.2(b)(1) is amended by 

striking ‘‘(i)’’ and inserting ‘‘(A)’’; and by 

striking ‘‘(ii)’’ and inserting ‘‘(B)’’. 

The Commentary to § 2K1.3 captioned 

‘‘Application Notes’’ is amended in Note 

10 by striking ‘‘(1)’’ and inserting ‘‘(A)’’; 

by striking ‘‘(2)’’ and inserting ‘‘(B)’’; by 

striking ‘‘(3)’’ and inserting ‘‘(C)’’; and by 

striking ‘‘(4)’’ and inserting ‘‘(D)’’. 

The Commentary to § 2K2.1 captioned 

‘‘Application Notes’’ is amended in Note 

2 by inserting ‘‘That Is’’ after ‘‘Firearm’’; 

and by inserting ‘‘that is’’ after 

‘‘semiautomatic firearm’’. 

The Commentary to § 2K2.1 captioned 

‘‘Application Notes’’ is amended in Note 

10 in the first paragraph by striking ‘‘; 

§ 4A1.2, comment. (n.3)’’; in Note 11 by 

striking ‘‘(1)’’ and inserting ‘‘(A)’’; by 

striking ‘‘(2)’’ and inserting ‘‘(B)’’; by 

striking ‘‘(3)’’ and inserting ‘‘(C)’’; and by 

striking ‘‘(4)’’ and inserting ‘‘(D)’’. 

The Commentary to § 2K2.5 captioned 

‘‘Application Notes’’ is amended in Note 

2 by striking ‘‘(f)’’ and inserting ‘‘(g)’’; and 

in Note 3 by inserting ‘‘See 18 U.S.C. 

924(a)(4).’’ after ‘‘other offense.’’. 

The Commentary to § 2L2.1 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘(b),’’ after ‘‘1325’’; and by 

inserting ‘‘, (d)’’ after ‘‘(c)’’. 

The Commentary to § 2L2.2 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘(b),’’ after ‘‘1325’’; and by 

inserting ‘‘, (d)’’ after ‘‘(c)’’. 

The Commentary to § 2M3.1 

captioned ‘‘Application Notes’’ is 

amended in Note 1 by striking ‘‘12356’’ 

and inserting ‘‘12958 (50 U.S.C. 435 

note)’’. 

The Commentary to § 2M3.3 

captioned ‘‘Statutory Provisions’’ is 

amended by striking ‘‘(b), (c)’’. 

The Commentary to § 2M3.9 

captioned ‘‘Application Notes’’ is 

amended in Note 3 by inserting ‘‘See 50 

U.S.C. 421(d).’’ after ‘‘imprisonment.’’. 

The Commentary to § 2M6.1 

captioned ‘‘Application Notes’’ is 

amended in Note 1 in the paragraph that 

begins ‘‘ ‘Foreign terrorist’’ by striking 

‘‘1219’’ and inserting ‘‘1189’’; and in the 

paragraph that begins ‘‘ ‘Restricted 

person’’ by striking ‘‘(b)’’ and inserting 

‘‘(d)’’. 

The Commentary to § 2Q1.2 captioned 

‘‘Background’’ is amended by striking 

‘‘last two’’ and inserting ‘‘fifth and sixth’’. 

Section 2Q1.6(a)(1) is amended by 

striking ‘‘Substance’’ and inserting 

‘‘Substances’’. 

The Commentary to § 2Q2.1 captioned 

‘‘Application Notes’’ is amended in Note 

3 by inserting ‘‘, Subtitle B,’’ after ‘‘7 

CFR’’. 

Chapter Two, Part T, Subpart 2, is 

amended in the Introductory 

Commentary by striking ‘‘section’’ and 

inserting ‘‘subpart’’; and by inserting ‘‘of 

Chapter 51 of Subtitle E’’ after 

‘‘Subchapter J’’. 

The Commentary to § 2X5.2 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘§ 1129(a),’’. 

The Commentary to § 3C1.1 captioned 

‘‘Application Notes’’ is amended in Note 

4 by redesignating subdivisions (a) 

through (k) as (A) through (K); and in 

Note 5 by redesignating subdivisions (a) 

through (e) as (A) through (E). 

The Commentary to § 3E1.1 captioned 

‘‘Application Notes’’ is amended in Note 

1 by redesignating subdivisions (a) 

through (h) as (A) through (H). 

Section 5K2.17 is amended by striking 

‘‘(A)’’ and inserting ‘‘(1)’’; and by striking 

‘‘(B)’’ and inserting ‘‘(2)’’. 

Appendix A (Statutory Index) is 

amended in the line referenced to 7 

U.S.C. 13(f) by striking ‘‘(f)’’ and 

inserting ‘‘(e)’’; in the line referenced to 

8 U.S.C. 1325(b) by striking ‘‘(b)’’ and 

inserting ‘‘(c)’’; in the line referenced to 

8 U.S.C. 1325(c) by striking ‘‘(c)’’ and 

inserting ‘‘(d)’’; by inserting after the line 

referenced to 18 U.S.C. 247 the 

following: ‘‘18 U.S.C. 248 2H1.1’’; by 

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

1129(a); by inserting after the line 

referenced to 42 U.S.C. 1320a–7b the 

following: ‘‘42 U.S.C. 1320a–8b 2X5.1, 

2X5.2’’; in the line referenced to 50 

U.S.C. 783(b) by striking ‘‘(b)’’; and by 

striking the line referenced to 50 U.S.C. 

783(c). 

Reason for Amendment: This two-part 

amendment makes various technical 

and conforming changes to the 

guidelines. 

First, the amendment makes changes 

to the Guidelines Manual to promote 

accuracy and completeness. For 

example, it corrects typographical 

errors, and it addresses cases in which 

the Guidelines Manual provides 

information (such as a reference to a 

guideline, statute, or regulation) that has 

become incorrect or obsolete. 

Specifically, it amends: 

(1) § 1B1.3 (Relevant Conduct), 

Application Note 6, to ensure that two 

quotations contained in that note are 

accurate; 

(2) § 1B1.8 (Use of Certain 

Information), Application Note 2, to 

revise a reference to the ‘‘Probation 

Service’’; 

(3) § 1B1.9 (Class B or C 

Misdemeanors and Infractions), 

Application Note 1, to reflect that some 

infractions do not have any authorized 

term of imprisonment; 

(4) § 1B1.11 (Use of Guidelines 

Manual in Effect on Date of Sentencing), 


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Application Note 2, to correct a 

typographical error; 

(5) § 2A1.1 (First Degree Murder), 

Application Note 1, to provide specific 

citations for the examples given; 

(6) § 2A3.2 (Criminal Sexual Abuse of 

a Minor Under the Age of Sixteen Years 

(Statutory Rape) or Attempt to Commit 

Such Acts), Application Note 5, to 

correct typographical errors; 

(7) § 2A3.3 (Criminal Sexual Abuse of 

a Ward or Attempt to Commit Such 

Acts), Application Note 1, to correct a 

typographical error; 

(8) § 2A3.5 (Failure to Register as a 

Sex Offender), Application Note 1, to 

ensure that the statutory definitions 

referred to in that note are accurately 

cited; 

(9) § 2B1.4 (Insider Trading), 

Application Note 1, to correct a 

typographical error; 

(10) § 2B1.5 (Theft of, Damage to, or 

Destruction of, Cultural Heritage 

Resources), Application Note 1, to 

provide updated citations to statutes 

and regulations; 

(11) § 2B3.1 (Robbery), Application 

Note 2, to correct a typographical error; 

(12) § 2B4.1 (Bribery in Procurement 

of Bank Loan and Other Commercial 

Bribery), Background, to provide an 

updated description and reference to the 

statute criminalizing bribery in 

connection with Medicare and Medicaid 

referrals; 

(13) § 2B6.1 (Altering or Removing 

Motor Vehicle Identification Numbers), 

Background, to update the statutory 

maximum term of imprisonment for 

violations of 18 U.S.C. 553(a)(2); 

(14) § 2C1.1 (Offering, Giving, 

Soliciting, or Receiving a Bribe), 

Application Note 3, to ensure that the 

subsection relating to ‘‘loss’’ is 

accurately cited; 

(15) § 2C1.2 (Offering, Giving, 

Soliciting, or Receiving a Gratuity), 

Application Note 4, to correct a 

typographical error; 

(16) § 2D1.1 (Unlawful 

Manufacturing, Importing, Exporting, or 

Trafficking), in the Notes to the Drug 

Quantity Table, to provide updated 

citations to regulations; 

(17) both § 2D1.11 (Unlawfully 

Distributing, Importing, Exporting or 

Possessing a Listed Chemical), 

Application Note 6, and § 2D1.12 

(Unlawful Possession, Manufacture, 

Distribution, Transportation, 

Exportation, or Importation of 

Prohibited Flask, Equipment, Chemical, 

Product, or Material), Application Note 

3, to provide a more accurate statutory 

citation and description; 

(18) § 2D1.14 (Narco-Terrorism), 

subsection (a)(1), to provide an updated 

guideline reference; 

(19) § 2D2.1 (Unlawful Possession), 

Commentary, to provide updated 

statutory references; 

(20) § 2G3.1 (Importing, Mailing, or 

Transporting Obscene Matter), 

Application Note 1, to make the 

definition of ‘‘distribution’’ in that 

guideline consistent with the definition 

of ‘‘distribution’’ in the child 

pornography guidelines; 

(21) § 2K2.1 (Unlawful Receipt, 

Possession, or Transportation of 

Firearms or Ammunition), Application 

Notes 2 and 10, to ensure that a 

quotation contained in Note 2 is 

accurate and that a citation in Note 10 

is accurate; 

(22) § 2K2.5 (Possession of Firearm or 

Dangerous Weapon in Federal Facility; 

Possession or Discharge of Firearm in 

School Zone), Application Notes 2 and 

3, to provide updated statutory 

references; 

(23) both § 2L2.1 (Trafficking in a 

Document Relating to Naturalization, 

Citizenship, or Legal Resident Status, or 

a United States Passport), Statutory 

Provisions, and § 2L2.2 (Fraudulently 

Acquiring Documents Relating to 

Naturalization, Citizenship, or Legal 

Resident Status for Own Use), Statutory 

Provisions, to provide updated statutory 

references; 

(24) § 2M3.1 (Gathering or 

Transmitting National Defense 

Information to Aid a Foreign 

Government), Application Note 1, to 

provide an updated reference to an 

executive order; 

(25) § 2M3.3 (Transmitting National 

Defense Information), to provide an 

updated statutory reference; 

(26) § 2M3.9 (Disclosure of 

Information Identifying a Covert Agent), 

Application Note 3, to provide an 

updated statutory reference; 

(27) § 2M6.1 (Unlawful Activity 

Involving Nuclear Material, Weapons, or 

Facilities, Biological Agents, Toxins, or 

Delivery Systems, Chemical Weapons, 

or Other Weapons of Mass Destruction), 

Application Note 1, to provide updated 

statutory references; 

(28) § 2Q1.2 (Mishandling of 

Hazardous or Toxic Substances or 

Pesticides), Background, to provide 

updated guideline references; 

(29) § 2Q1.6 (Hazardous or Injurious 

Devices on Federal Lands), subsection 

(a)(1), to correct a typographical error; 

(30) § 2Q2.1 (Offenses Involving Fish, 

Wildlife, and Plants), Application Note 

3, to provide a more complete reference 

to regulations; 

(31) Chapter Two, Part T, Subpart 2 

(Alcohol and Tobacco Taxes), 

Introductory Commentary, to provide a 

more complete statutory reference; 

(32) § 2X5.2 (Class A Misdemeanors 

(Not Covered by Another Specific 

Offense Guideline)), to strike an 

erroneous statutory reference; 

(33) Appendix A (Statutory Index), to 

provide updated statutory references 

and strike an erroneous statutory 

reference. 

Second, the amendment makes a 

series of changes to the Guidelines 

Manual to promote stylistic consistency 

in how subdivisions are designated. 

When dividing guideline sections into 

subdivisions, the guidelines generally 

follow the structure used by Congress to 

divide statutory sections into 

subdivisions. Thus, a section is broken 

into subsections (starting with ‘‘(a)’’), 

which are broken into paragraphs 

(starting with ‘‘(1)’’), which are broken 

into subparagraphs (starting with ‘‘(A)’’), 

which are broken into clauses (starting 

with ‘‘(i)’’), which are broken into 

subclauses (starting with ‘‘(I)’’). For a 

generic term, ‘‘subdivision’’ is also used. 

When dividing application notes into 

subdivisions, the guidelines generally 

follow the same structure, except that 

subsections and paragraphs are not 

used; the first subdivisions used are 

subparagraphs (starting with ‘‘(A)’’). The 

amendment identifies places in the 

Guidelines Manual where these 

principles are not followed and brings 

them into conformity. 

[FR Doc. 2010–11552 Filed 5–13–10; 8:45 am] 

BILLING CODE P 


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