54700 Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Notices 

on, and analysis of, recidivism by child 

pornography offenders; and (C) possible 

recommendations to Congress on any 

statutory changes that may be 

appropriate. 

(7) Continuation of its review of 

departures within the guidelines, 

including provisions in Parts H and K 

of Chapter Five of the Guidelines 

Manual, and the extent to which 

pertinent statutory provisions prohibit, 

discourage, or encourage certain factors 

as forming the basis for departure from 

the guideline sentence. 

(8) Continuation of its multi-year 

study of the statutory and guideline 

definitions of ‘‘crime of violence’’, 

‘‘aggravated felony’’, ‘‘violent felony’’, 

and ‘‘drug trafficking offense’’, including 

(A) an examination of relevant circuit 

conflicts regarding whether any offense 

is categorically a ‘‘crime of violence’’, 

‘‘aggravated felony’’, ‘‘violent felony’’, or 

‘‘drug trafficking offense’’ for purposes of 

triggering an enhanced sentence under 

certain Federal statutes and guidelines; 

(B) possible consideration of an 

amendment to provide an alternative 

approach to the ‘‘categorical approach’’, 

see Taylor v. United States, 495 U.S. 575 

(1990); Shepard v. United States, 544 

U.S. 13 (2005), for determining the 

applicability of guideline 

enhancements; and (C) possible 

consideration of an amendment to 

provide that the time period limitations 

in subsection (e) of § 4A1.2 (Definitions 

and Instructions for Computing 

Criminal History) apply for purposes of 

determining the applicability of 

enhancements in § 2L1.2 (Unlawfully 

Entering or Remaining in the United 

States). 

(9) Consideration of a possible 

amendment to provide a reduction in 

the offense level for certain deportable 

aliens who agree to a stipulated order of 

deportation. 

(10) Examination of, and possible 

amendments to, the guidelines and 

policy statements in Part D of Chapter 

Five of the Guidelines Manual 

pertaining to supervised release. 

(11) Continued study of alternatives to 

incarceration, including possible 

consideration of any changes to the 

Guidelines Manual that might be 

appropriate in light of the information 

obtained from that study. 

(12) Resolution of circuit conflicts, 

pursuant to the Commission’s 

continuing authority and responsibility, 

under 28 U.S.C. 991(b)(1)(B) and 

Braxton v. United States, 500 U.S. 344 

(1991), to resolve conflicting 

interpretations of the guidelines by the 

Federal courts. 

(13) Multi-year review of the 

guidelines pertaining to environmental 

crimes, with particular consideration of 

whether the fine provisions in Part C of 

Chapter Eight of the Guidelines Manual 

should apply to such offenses. 

(14) Consideration of miscellaneous 

guideline application issues coming to 

the Commission’s attention from case 

law and other sources. 

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

Rules of Practice and Procedure 5.2. 

William K. Sessions III, 

Chair. 

[FR Doc. 2010–22340 Filed 9–7–10; 8:45 am] 

BILLING CODE 2211–01–P 

UNITED STATES SENTENCING 

COMMISSION 

Sentencing Guidelines for United 

States Courts 

AGENCY: United States Sentencing 

Commission. 

ACTION: Notice of proposed amendment; 

request for comment. 

SUMMARY: Pursuant to section 994(a), 

(o), and (p) of title 28, United States 

Code, and section 8 of the Fair 

Sentencing Act of 2010, Public Law 

111–220, the Commission is considering 

promulgating a temporary, emergency 

amendment to the sentencing 

guidelines, policy statements, and 

commentary to decrease penalties for 

offenses involving cocaine base (‘‘crack’’ 

cocaine) and to account for certain 

aggravating and mitigating 

circumstances in drug trafficking cases. 

This notice sets forth the proposed 

amendment and, for each part of the 

proposed amendment, a synopsis of the 

issues addressed by that part. This 

notice also provides multiple issues for 

comment, some of which are contained 

within the proposed amendment. 

The specific proposed amendment 

(and issues for comment) in this notice 

is as follows: A proposed temporary, 

emergency amendment and issues for 

comment regarding offenses involving 

crack cocaine (particularly offenses 

covered by §§ 2D1.1 (Unlawful 

Manufacturing, Importing, Exporting, or 

Trafficking (Including Possession with 

Intent to Commit These Offenses); 

(Attempt or Conspiracy) and 2D2.1 

(Unlawful Possession; Attempt or 

Conspiracy)) and to account for certain 

aggravating and mitigating 

circumstances in drug trafficking cases 

(particularly cases under § 2D1.1) to 

implement section 8 of the Fair 

Sentencing Act of 2010, Public Law 

111–220. 

DATES: Written public comment on the 

proposed emergency amendment should 

be received by the Commission not later 

than October 8, 2010, in anticipation of 

a vote to promulgate the emergency 

amendment by November 1, 2010. 

ADDRESSES: Public comment should be 

sent to: United States Sentencing 

Commission, One Columbus Circle, NE., 

Suite 2–500, Washington, DC 20002– 

8002, Attention: Public Affairs. 

FOR FURTHER INFORMATION CONTACT: 

Michael Courlander, Public Affairs 

Officer, Telephone: (202) 502–4597. 

SUPPLEMENTARY INFORMATION: The 

United States Sentencing Commission is 

an independent agency in the judicial 

branch of the United States 

Government. The Commission 

promulgates sentencing guidelines and 

policy statements for federal courts 

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

Commission also periodically reviews 

and revises previously promulgated 

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

and submits guideline amendments to 

the Congress not later than the first day 

of May of each year pursuant to 28 

U.S.C. 994(p). 

The Commission seeks comment on 

the proposed amendment and issues for 

comment. 

The parts of the proposed amendment 

in this notice are presented in one of 

two formats. First, some parts of the 

proposed amendment are proposed as 

specific revisions to a guideline or 

commentary. Bracketed text within a 

part of the proposed amendment 

indicates a heightened interest on the 

Commission=s part on comment and 

suggestions regarding alternative policy 

choices; for example, a proposed 

enhancement of [2][4][6] levels indicates 

that the Commission is considering, and 

invites comment on, alternative policy 

choices regarding the appropriate level 

of enhancement. Similarly, bracketed 

text within a specific offense 

characteristic or application note means 

that the Commission specifically invites 

comment on whether the proposed 

provision is appropriate. Second, the 

Commission has highlighted certain 

issues for comment and invites 

suggestions on how the Commission 

should respond to those issues. 

Additional information pertaining to 

the proposed amendment described in 

this notice may be accessed through the 

Commission’s Web site at http:// 

www.ussc.gov. 

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

section 8 of the Fair Sentencing Act of 2010, 


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Pub. L. 111–220; USSC Rules of Practice and 

Procedure, Rules 4.4, 4.5. 

William K. Sessions, III, 

Chair. 

1. Proposed Emergency Amendment: 

Fair Sentencing Act of 2010 

Synopsis of Proposed Amendment: 

The Fair Sentencing Act of 2010, Public 

Law 111–220 (the ‘‘Act’’), was signed 

into law on August 3, 2010. The Act 

reduces statutory penalties for cocaine 

base (crack cocaine) offenses and 

eliminates the mandatory minimum 

sentence for simple possession of crack 

cocaine. The Act also contains 

directives to the Commission to review 

and amend the sentencing guidelines to 

account for certain aggravating and 

mitigating circumstances in drug 

trafficking cases. 

Section 8 of the Act invokes the 

Commission’s emergency, temporary 

amendment authority under section 

21(a) of the Sentencing Act of 1987 (28 

U.S.C. 994 note) and directs the 

Commission to promulgate within 90 

days—i.e., not later than November 1, 

2010—the amendments to the 

Guidelines Manual provided for by the 

Act. It provides in full as follows: 

Sec. 8. Emergency Authority for United 

States Sentencing Commission 

The United States Sentencing 

Commission shall— 

(1) Promulgate the guidelines, policy 

statements, or amendments provided for 

in this Act as soon as practicable, and 

in any event not later than 90 days after 

the date of enactment of this Act, in 

accordance with the procedure set forth 

in section 21(a) of the Sentencing Act of 

1987 (28 U.S.C. 994 note), as though the 

authority under that Act had not 

expired; and 

(2) Pursuant to the emergency 

authority provided under paragraph (1), 

make such conforming amendments to 

the Federal sentencing guidelines as the 

Commission determines necessary to 

achieve consistency with other 

guideline provisions and applicable 

law. 

Section 21(a) of the Sentencing Act of 

1987 provides in full as follows: 

Sec. 21. Emergency Guidelines 

Promulgation Authority 

(a) In General.—In the case of— 

(1) An invalidated sentencing 

guideline; 

(2) The creation of a new offense or 

amendment of an existing offense; or 

(3) Any other reason relating to the 

application of a previously established 

sentencing guideline, and determined 

by the United States Sentencing 

Commission to be urgent and 

compelling; 

the Commission, by affirmative vote of 

at least four members of the 

Commission, and pursuant to its rules 

and regulations and consistent with all 

pertinent provisions of title 28 and title 

18, United States Code, shall 

promulgate and distribute to all courts 

of the United States and to the United 

States Probation System a temporary 

guideline or amendment to an existing 

guideline, to remain in effect until and 

during the pendency of the next report 

to Congress under section 994(p) of title 

28, United States Code. 

Any temporary amendment 

promulgated by the Commission under 

the section 21(a) authority will expire 

not later than November 1, 2011. See 

section 21(a); 28 U.S.C. 994(p). The 

Commission will continue work on the 

issues raised by the Act during the 

regular amendment cycle ending May 1, 

2011, with a view to re-promulgating 

any temporary amendment as a 

permanent amendment (in its original 

form, or with revisions) under 28 U.S.C. 

994(p). 

The proposed amendment and issues 

for comment address the issues arising 

under the Act in the following manner: 

(A) Changes to Statutory Terms of 

Imprisonment for Crack Cocaine 

Issue for Comment: 

1. Federal drug laws establish three 

tiers of penalties for manufacturing and 

trafficking in cocaine, each based on the 

amount of cocaine involved. See 21 

U.S.C. 841(b)(1)(A), (B), (C), 960(b)(1), 

(2), (3). For smaller quantities, the 

maximum term of imprisonment is 20 

years, and there is no mandatory 

minimum term of imprisonment. If the 

amount of cocaine involved reaches a 

specified quantity, however, the 

maximum term increases to 40 years, 

and a mandatory minimum term of 5 

years applies. If the amount of cocaine 

reaches ten times that specified 

quantity, the maximum term is life, and 

a mandatory minimum term of 10 years 

applies. 

Section 2 of the Act amended these 

laws to raise the specified quantities of 

crack cocaine associated with these two 

higher tiers of penalties. Before the Act, 

the 5-year mandatory minimum applied 

to offenses involving 5 grams (or more) 

of crack cocaine, and the 10-year 

mandatory minimum applied to 

offenses involving 50 grams (or more) of 

crack cocaine. Section 2 of the Act 

raised these quantities to 28 grams and 

280 grams, respectively. 

The Commission requests comment 

on what temporary amendments to the 

Guidelines Manual it should promulgate 

in response to the statutory changes 

made by section 2 of the Act. In 

particular, the Commission requests 

comment on what amendments should 

be made to the Drug Quantity Table in 

§ 2D1.1 (Unlawful Manufacturing, 

Importing, Exporting, or Trafficking 

(Including Possession with Intent to 

Commit These Offenses); Attempt or 

Conspiracy). When Congress has 

provided statutory mandatory minimum 

sentences based on drug quantity, the 

Commission has generally responded by 

incorporating the statutory mandatory 

minimum sentences into the Drug 

Quantity Table and extrapolating 

upward and downward to set guideline 

sentencing ranges for all drug quantities. 

The drug quantity thresholds in the 

Drug Quantity Table have generally 

been set so as to provide base offense 

levels corresponding to guideline ranges 

that are above the statutory mandatory 

minimum penalties. 

Until 2007, the drug quantity 

thresholds for crack cocaine followed 

the same principle. Accordingly, 

offenses involving 5 grams or more of 

crack cocaine were assigned a base 

offense level (level 26) corresponding to 

a sentencing guideline range of 63 to 78 

months for a defendant in Criminal 

History Category I (a guideline range 

that exceeds the 5-year statutory 

minimum for such offenses by at least 

three months). Similarly, offenses 

involving 50 grams or more of crack 

cocaine were assigned a base offense 

level (level 32) corresponding to a 

sentencing guideline range of 121 to 151 

months for a defendant in Criminal 

History Category I (a guideline range 

that exceeds the 10-year statutory 

minimum for such offenses by at least 

1 month). In Amendment 706, the 

Commission amended the Drug 

Quantity Table for crack cocaine, 

reducing the base offense levels for 

these quantities to level 24 and level 30, 

respectively, and extrapolating upward 

and downward for other crack cocaine 

quantities. See USSG App. C, 

Amendment 706 (effective November 1, 

2007). Base offense levels 24 and 30 

each correspond to a guideline range for 

a defendant in Criminal History 

Category I that includes the statutory 

mandatory minimum penalty. 

For base offense level 24, the 

guideline range is 51–63 months; for 

base offense level 30, the guideline 

range is 97–121 months. The 

Commission also amended the 

commentary to § 2D1.1 to revise the 

manner in which combined offense 

levels are determined in cases involving 

both crack cocaine and one or more 

other controlled substances. See USSG 


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App. C, Amendment 715 (effective May 

1, 2008). 

Given the statutory changes made by 

section 2 of the Act, how should the 

Commission revise the Drug Quantity 

Table for offenses involving crack 

cocaine? 

In particular, should the base offense 

levels for crack cocaine again be set so 

that the statutory minimum penalties 

correspond to levels 26 and 32, using 

the new drug quantities established by 

the Act (the ‘‘level 26 option’’)? Or 

should the base offense levels for crack 

cocaine continue to be set so that the 

statutory minimum penalties 

correspond to levels 24 and 30, using 

the new drug quantities established by 

the Act (the ‘‘level 24 option’’)? A 

comparison of the base offense levels 

(‘‘BOL’’) and quantities for these options 

is as follows: 

BOL Quantity under level 26 option Quantity under level 24 option 

38 ......................................... 8.4 KG or more ............................................................... 25.2 KG or more. 

36 ......................................... At least 2.8 KG but less than 8.4 KG ............................. At least 8.4 KG but less than 25.2 KG. 

34 ......................................... At least 840 G but less than 2.8 KG .............................. At least 2.8 KG but less than 8.4 KG. 

32 ......................................... At least 280 G but less than 840 G ................................ At least 840 G but less than 2.8 KG. 

30 ......................................... At least 196 G but less than 280 G ................................ At least 280 G but less than 840 G. 

28 ......................................... At least 112 G but less than 196 G ................................ At least 196 G but less than 280 G. 

26 ......................................... At least 28 G but less than 112 G .................................. At least 112 G but less than 196 G. 

24 ......................................... At least 22.4 G but less than 28 G ................................. At least 28 G but less than 112 G. 

22 ......................................... At least 16.8 G but less than 22.4 G .............................. At least 22.4 G but less than 28 G. 

20 ......................................... At least 11.2 G but less than 16.8 G .............................. At least 16.8 G but less than 22.4 G. 

18 ......................................... At least 5.6 G but less than 11.2 G ................................ At least 11.2 G but less than 16.8 G. 

16 ......................................... At least 2.8 G but less than 5.6 G .................................. At least 5.6 G but less than 11.2 G. 

14 ......................................... At least 1.4 G but less than 2.8 G .................................. At least 2.8 G but less than 5.6 G. 

12 ......................................... Less than 1.4 G .............................................................. Less than 2.8 G. 

Whichever option is adopted, 

conforming changes to the commentary 

to § 2D1.1 will need to be made to revise 

the manner in which combined offense 

levels are determined in cases involving 

crack cocaine and one or more other 

controlled substances. Under either 

option, 1 gram of crack cocaine would 

be equivalent to 3,571 grams of 

marijuana. However, if the level 26 

option is adopted, the combined offense 

level in such a case would be 

determined under Application Note 10 

in the same manner as for any other case 

involving more than one controlled 

substance, i.e., Application Note 10(D) 

would not apply. If the level 24 option 

is adopted, in contrast, Application 

Note 10(D) would continue to apply, 

except that Application Note 10(D)(ii)(I) 

would be amended to read ‘‘the offense 

involved 25.2 kg or more, or less than 

1.4 g, of cocaine base; or’’, and the 

examples in Application Note 10(D)(iii) 

would be revised. 

(B) Elimination of Mandatory Minimum 

for Simple Possession of Crack Cocaine 

Synopsis of Proposed Amendment: 

This part of the proposed amendment 

responds to section 3 of the Act, which 

amended 21 U.S.C. 844(a) to eliminate 

the 5-year mandatory minimum term of 

imprisonment (and 20-year statutory 

maximum) for simple possession of 

more than 5 grams of crack cocaine (or, 

for certain repeat offenders, more than 

1 gram of crack cocaine). Accordingly, 

the statutory penalty for simple 

possession of crack cocaine is now the 

same as for simple possession of most 

other controlled substances: for a first 

offender, a maximum term of 

imprisonment of one year; for repeat 

offenders, maximum terms of 2 years or 

3 years, and minimum terms of 15 days 

or 90 days, depending on the prior 

convictions. See 21 U.S.C. 844(a). 

Offenses under section 844(a) are 

referenced in Appendix A (Statutory 

Index) to § 2D2.1 (Unlawful Possession; 

Attempt or Conspiracy). Section 2D2.1 

contains a cross reference at subsection 

(b)(1) that was established by the 

Commission in 1989 to address the 

statutory minimum in section 844(a). 

See USSG App. C, Amendment 304 

(effective November 1, 1989). Under the 

cross reference, an offender who 

possessed more than 5 grams of crack 

cocaine is sentenced under the drug 

trafficking guideline, § 2D1.1. 

To reflect the elimination of this 

statutory minimum, the proposed 

amendment deletes as obsolete the cross 

reference at § 2D2.1(b)(1). Conforming 

changes to the commentary are also 

made. 

Proposed Amendment: 

Section 2D2.1(b) is amended by 

striking ‘‘References’’ and inserting 

‘‘Reference’’; by striking subdivision (1); 

and by redesignating subdivision (2) as 

subdivision (1). 

The Commentary to § 2D2.1 captioned 

‘‘Background’’ is amended by striking 

‘‘five’’ and inserting ‘‘three’’; and by 

striking the last paragraph. 

(C) Enhancements and Adjustments 

Synopsis of Proposed Amendment: 

This part of the proposed amendment 

responds to sections 5, 6, and 7 of the 

Act, which contain directives to the 

Commission to provide certain 

enhancements and adjustments for drug 

trafficking offenses. 

Violence Enhancement 

First, this part of the proposed 

amendment responds to section 5 of the 

Act, which directs the Commission to 

‘‘review and amend the Federal 

sentencing guidelines to ensure that the 

guidelines provide an additional 

penalty increase of at least 2 offense 

levels if the defendant used violence, 

made a credible threat to use violence, 

or directed the use of violence during a 

drug trafficking offense.’’ 

This part of the proposed amendment 

implements this directive by amending 

§ 2D1.1 to provide a new specific 

offense characteristic at subsection 

(b)(2) that provides an enhancement of 

[2][4][6] levels if violence as described 

in the directive was involved. A 

conforming amendment to Application 

Note 3 is also made. 

Bribery Enhancement 

Second, this part of the proposed 

amendment responds to section 6(1) of 

the Act, which directs the Commission 

to ‘‘review and amend the Federal 

sentencing guidelines to ensure an 

additional increase of at least 2 offense 

levels if * * * the defendant bribed, or 

attempted to bribe, a Federal, State, or 

local law enforcement official in 

connection with a drug trafficking 

offense.’’ 

This part of the proposed amendment 

implements this directive by amending 

§ 2D1.1 to establish a new specific 

offense characteristic at subsection 

(b)(11) that provides an enhancement of 

[2][4] levels if the defendant [was 


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convicted of bribing or attempting to 

bribe][bribed or attempted to bribe] a 

law enforcement officer to facilitate the 

commission of the offense. 

Drug Establishment Enhancement 

Third, this part of the proposed 

amendment responds to section 6(2) of 

the Act, which directs the Commission 

to ‘‘review and amend the Federal 

sentencing guidelines to ensure an 

additional increase of at least 2 offense 

levels if * * * the defendant 

maintained an establishment for the 

manufacture or distribution of a 

controlled substance, as generally 

described in section 416 of the 

Controlled Substances Act (21 U.S.C. 

856).’’ 

This part of the proposed amendment 

implements this directive by amending 

§ 2D1.1 to establish a new specific 

offense characteristic at subsection 

(b)(12) that provides an enhancement of 

[2][4] levels if the defendant maintained 

an establishment for the manufacture or 

distribution of a controlled substance, as 

described in 21 U.S.C. 856. 

Enhancement Based on ‘‘SuperAggravating’’ Factors 

Fourth, this part of the proposed 

amendment responds to section 6(3) of 

the Act, which directs the Commission 

to ‘‘review and amend the Federal 

sentencing guidelines to ensure an 

additional increase of at least 2 offense 

levels if * * * (A) the defendant is an 

organizer, leader, manager, or 

supervisor of drug trafficking activity 

subject to an aggravating role 

enhancement under the guidelines; and 

(B) the offense involved 1 or more of the 

following super-aggravating factors:’’ 

(i) The defendant— 

(I) Used another person to purchase, 

sell, transport, or store controlled 

substances; 

(II) Used impulse, fear, friendship, 

affection, or some combination thereof 

to involve such person in the offense; 

and 

(III) Such person had a minimum 

knowledge of the illegal enterprise and 

was to receive little or no compensation 

from the illegal transaction. 

(ii) The defendant— 

(I) Knowingly distributed a controlled 

substance to a person under the age of 

18 years, a person over the age of 64 

years, or a pregnant individual; 

(II) Knowingly involved a person 

under the age of 18 years, a person over 

the age of 64 years, or a pregnant 

individual in drug trafficking; 

(III) Knowingly distributed a 

controlled substance to an individual 

who was unusually vulnerable due to 

physical or mental condition, or who 

was particularly susceptible to criminal 

conduct; or 

(IV) Knowingly involved an 

individual who was unusually 

vulnerable due to physical or mental 

condition, or who was particularly 

susceptible to criminal conduct, in the 

offense. 

(iii) The defendant was involved in 

the importation into the United States of 

a controlled substance. 

(iv) The defendant engaged in witness 

intimidation, tampered with or 

destroyed evidence, or otherwise 

obstructed justice in connection with 

the investigation or prosecution of the 

offense. 

(v) The defendant committed the drug 

trafficking offense as part of a pattern of 

criminal conduct engaged in as a 

livelihood. 

This part of the proposed amendment 

implements this directive by creating a 

new enhancement of [2][4] levels in 

subsection (b)(14) of § 2D1.1 if the 

defendant receives an adjustment under 

§ 3B1.1 and the offense involved one or 

more of the factors described in the 

directive. 

Downward Adjustment Based on 

Certain Mitigating Factors 

Fifth, this part of the proposed 

amendment responds to section 7(2) of 

the Act, which directs the Commission 

to ‘‘review and amend the Federal 

sentencing guidelines and policy 

statements to ensure that * * * there is 

an additional reduction of 2 offense 

levels if the defendant—’’ 

(A) Otherwise qualifies for a minimal 

role adjustment under the guidelines 

and had a minimum knowledge of the 

illegal enterprise; 

(B) Was to receive no monetary 

compensation from the illegal 

transaction; and 

(C) Was motivated by an intimate or 

familial relationship or by threats or fear 

when the defendant was otherwise 

unlikely to commit such an offense. 

This part of the proposed amendment 

implements this directive by creating a 

new downward adjustment of 2 levels 

in subsection (b)(15) of § 2D1.1 if the 

defendant receives an adjustment under 

§ 3B1.2(a) and the other factors 

described in the directive apply. 

Technical and Conforming Changes 

Finally, to reflect the renumbering of 

specific offense characteristics in 

§ 2D1.1(b) by this part of the proposed 

amendment, this part of the proposed 

amendment makes technical and 

conforming changes to the commentary 

to § 2D1.1 and to § 2D1.14 (NarcoTerrorism). 

Issues for comment are also included. 

Proposed Amendment: 

Section 2D1.1(b) is amended by 

redesignating subdivisions (10) and (11) 

as subdivisions (13) and (16); by 

redesignating subdivisions (2) through 

(9) as subdivisions (3) through (10); by 

inserting after subdivision (1) the 

following: 

‘‘(2) If the defendant used violence, 

made a credible threat to use violence, 

or directed the use of violence, increase 

by [2][4][6] levels.’’; 

by inserting after subdivision (10), as 

redesignated by this amendment, the 

following: 

‘‘(11) If the defendant [was convicted 

of bribing or attempting to bribe][bribed 

or attempted to bribe] a law enforcement 

officer to facilitate the commission of 

the offense, increase by [2][4] levels. 

(12) If the defendant maintained an 

establishment for the manufacture or 

distribution of a controlled substance, as 

described in 21 U.S.C. § 856, increase by 

[2][4] levels.’’; 

by inserting after subdivision (13), as 

redesignated by this amendment, the 

following: 

‘‘(14) If the defendant receives an 

adjustment under § 3B1.1 (Aggravating 

Role) and the offense involved 1 or more 

of the following factors: 

(A) (i) The defendant used impulse, 

fear, friendship, affection, or some 

combination thereof to involve another 

individual in the purchase, sale, 

transport, or storage of controlled 

substances; and (ii) the individual (I) 

was to receive little or no compensation 

from that purchase, sale, transport, or 

storage of controlled substances and (II) 

had minimal knowledge of [the scope 

and structure of] the enterprise; 

(B) the defendant knowingly (i) 

distributed a controlled substance to an 

individual under the age of 18 years, an 

individual over the age of 64 years, a 

pregnant individual, an individual who 

was unusually vulnerable due to 

physical or mental condition, or an 

individual who was particularly 

susceptible to criminal conduct, or (ii) 

involved such an individual in the 

offense; 

(C) the defendant was involved in the 

importation of a controlled substance; 

(D) the defendant engaged in witness 

intimidation, tampered with or 

destroyed evidence, or otherwise 

obstructed justice; 

(E) the defendant committed the 

offense as part of a pattern of criminal 

conduct engaged in as a livelihood; 

increase by [2][4] levels. 

(15) If the defendant receives an 

adjustment under subsection (a) of 

§ 3B1.2 (Mitigating Role) and the offense 

involved all of the following factors: 


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(A) The defendant was motivated by 

an intimate or familial relationship or 

by threats or fear to commit the offense 

and was otherwise unlikely to commit 

such an offense; 

(B) the defendant was to receive no 

monetary compensation from the 

offense; and 

(C) the defendant had minimal 

knowledge of [the scope and structure 

of] the enterprise, 

decrease by 2 levels.’’. 

The Commentary to § 2D1.1 captioned 

‘‘Application Notes’’ is amended in Note 

3 by inserting ‘‘in subsection (b)(1)’’ after 

‘‘weapon possession’’; by striking ‘‘The 

adjustment’’ and inserting ‘‘Subsection 

(b)(1)’’; by striking ‘‘the enhancement’’ 

and inserting ‘‘subsection (b)(1)’’; and by 

striking the last sentence and inserting 

the following: 

‘‘Although the enhancements for 

weapon possession in subsection (b)(1) 

and violence in subsection (b)(2) may be 

triggered by the same conduct (such as 

where the defendant uses the possessed 

weapon to make a credible threat to use 

violence), they are to be applied 

cumulatively (added together), as is 

generally the case when two or more 

specific offense characteristics each 

apply. See § 1B1.1 (Application 

Instructions), Application Note 4(A).’’. 

The Commentary to § 2D1.1 captioned 

‘‘Application Notes’’ is amended in Note 

8 in the last paragraph by striking ‘‘(2)’’ 

and inserting ‘‘(3)’’; 

in Note 18 by striking ‘‘(2)’’ and inserting 

‘‘(3)’’, and by striking ‘‘(4)’’ and 

inserting ‘‘(5)’’; 

in Note 19 by striking ‘‘(10)’’ and 

inserting ‘‘(13)’’ in both places; 

in Note 20 by striking ‘‘(10)’’ and 

inserting ‘‘(13)’’ in both places; 

in Note 21 by striking ‘‘(11)’’ and 

inserting ‘‘(16)’’ each place it appears; 

in Note 23 by striking ‘‘(6)’’ and inserting 

‘‘(7)’’ each place it appears; 

in Note 25 by striking ‘‘(7)’’ and inserting 

‘‘(8)’’ in both places; 

and in Note 26 by striking ‘‘(8)’’ and 

inserting ‘‘(9)’’ in both places. 

The Commentary to § 2D1.1 captioned 

‘‘Background’’ is amended by inserting 

after the paragraph that begins ‘‘For 

marihuana plants’’ the following: 

‘‘Subsection (b)(2) implements the 

directive to the Commission in section 

5 of Public Law 111–220.’’; 

In the paragraph that begins ‘‘Specific 

Offense Characteristic’’ by striking 

‘‘Specific Offense Characteristic (b)(2)’’ 

and inserting ‘‘Subsection (b)(3)’’; 

By inserting after the paragraph that 

begins ‘‘The dosage weight’’ the 

following: 

‘‘Subsection (b)(11) implements the 

directive to the Commission in section 

6(1) of Public Law 111–220. 

Subsection (b)(12) implements the 

directive to the Commission in section 

6(2) of Public Law 111–220.’’; 

In the paragraph that begins 

‘‘Subsection (b)(10)(A)’’ by striking ‘‘(10)’’ 

and inserting ‘‘(13)’’; 

In the paragraph that begins 

‘‘Subsections (b)(10)(C)(ii)’’ by striking 

‘‘(10)’’ and inserting ‘‘(13)’’; 

and by adding at the end the 

following: 

‘‘Subsection (b)(14) implements the 

directive to the Commission in section 

6(1) of Public Law 111–220. 

Subsection (b)(15) implements the 

directive to the Commission in section 

7(2) of Public Law 111–220.’’ 

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

striking ‘‘(11)’’ and inserting ‘‘(16)’’. 

Issues for Comment: 

1. In the proposed new violence 

enhancement in subsection (b)(2) of 

§ 2D1.1, should the Commission provide 

a single level of enhancement for any 

conduct covered by the violence 

enhancement, or should the 

Commission distinguish among the 

different categories of conduct (use of 

violence; credible threat to use violence; 

directing others to use violence) by 

assigning different levels of 

enhancement to each? 

2. The proposed amendment would 

amend Application Note 3 to § 2D1.1 to 

provide that the enhancements for 

weapon possession in subsection (b)(1) 

and violence in subsection (b)(2) are to 

be applied cumulatively. Should the 

Commission instead provide that the 

enhancements are not to be applied 

cumulatively? 

3. The Guidelines Manual uses the 

term ‘‘violence’’ in several provisions, 

e.g., § 5C1.2 (Limitation on 

Applicability of Statutory Minimum 

Sentences in Certain Cases) (the ‘‘safety 

valve’’ provision), without defining the 

term. Should the term ‘‘violence’’ be 

defined for purposes of the new 

violence enhancement in subsection 

(b)(2)? If so, what should the definition 

be? How, if at all, should such a 

definition interact with the other 

provisions in the Manual where the 

term is not defined? 

4. The proposed new bribery 

enhancement in § 2D1.1(b)(11) may 

interact with other provisions in the 

Guidelines Manual, such as § 3C1.1 

(Obstructing or Impeding the 

Administration of Justice). How should 

the new bribery enhancement interact 

with such other provisions? In 

particular, should they be applied 

cumulatively, or should they not be 

applied cumulatively? 

5. The proposed new enhancement in 

§ 2D1.1(b)(12) would apply if the 

defendant ‘‘maintained an establishment 

for the manufacture or distribution of a 

controlled substance, as described in 21 

U.S.C. 856.’’ Should this enhancement 

apply more broadly, e.g., if the 

defendant ‘‘committed an offense 

described in 21 U.S.C. 856’’? How 

should this proposed new enhancement 

in subsection (b)(12) interact with 

§ 2D1.8 (Renting or Managing a Drug 

Establishment; Attempt or Conspiracy)? 

In particular, should the Commission 

raise the alternative base offense level 

26 in § 2D1.8 to [28][30]? 

6. As an alternative to establishing 

new specific offense characteristics at 

subsections (b)(14) and (15) of § 2D1.1, 

should the Commission instead 

implement these directives in Chapter 

Three? In particular, should the 

Commission amend §§ 3B1.1 and 3B1.2, 

or establish new Chapter Three 

guidelines, to provide the adjustments 

required by the directives? 

7. For the proposed new specific 

offense characteristic in § 2D1.1(b)(14), 

should the Commission distinguish 

among the different factors described by 

the directive (e.g., the factors set forth in 

subparagraphs (A) through (E) of the 

proposed new § 2D1.1(b)(14)) by 

assigning different levels to each? For 

example, should the most egregious 

factor be assigned an adjustment of [6] 

levels, and other factors assigned 

adjustments of [4] or [2] levels? If more 

than one factor is present, should that 

have a cumulative effect, warranting a 

higher total adjustment for that 

defendant? As an alternative, should the 

Commission provide an upward 

departure provision for cases in which 

more than one factor is present? 

8. The proposed new specific offense 

characteristic in § 2D1.1(b)(14) may 

interact with other provisions in the 

Guidelines Manual, such as § 2D1.2 

(Drug Offenses Occurring Near 

Protected Locations or Involving 

Underage or Pregnant Individuals; 

Attempt or Conspiracy), § 3B1.4 (Using 

a Minor to Commit a Crime), § 3C1.1 

(Obstructing or Impeding the 

Administration of Justice), and § 4B1.3 

(Criminal Livelihood). How should the 

new specific offense characteristic in 

subsection (b)(14) interact with such 

other provisions? In particular, should 

they be applied cumulatively, or should 

they not be applied cumulatively? 

9. The proposed new specific offense 

characteristic in § 2D1.1(b)(14) and the 

proposed new specific offense 

characteristics in § 2D1.1 for bribery (see 

Part C of this proposed amendment) and 

maintenance of a drug establishment 

(see Part D of this proposed amendment) 

all respond to section 6 of the Fair 

Sentencing Act of 2010. How should 

these provisions interact with each 


jlentini on DSKJ8SOYB1PROD with NOTICES
Federal Register / Vol. 75, No. 173 / Wednesday, September 8, 2010 / Notices 54705 

other? In particular, should they be 

applied cumulatively, or should they 

not be applied cumulatively? 

10. This part of the proposed 

amendment establishes several new 

specific offense characteristics in 

§ 2D1.1. What, if any, changes should 

the Commission make to other Chapter 

Two offense guidelines involving drug 

trafficking to ensure consistency and 

proportionality? Many such guidelines 

refer to § 2D1.1 in determining the 

offense level, but not in all cases. For 

example, if the base offense level is 

determined under subsection (a)(3) or 

(a)(4) of § 2D1.2 (Drug Offenses 

Occurring Near Protected Locations or 

Involving Underage or Pregnant 

Individuals; Attempt or Conspiracy), or 

under subsection (a)(2) of § 2D1.5 

(Continuing Criminal Enterprise; 

Attempt or Conspiracy), or under 

§ 2D1.11 (Unlawfully Distributing, 

Importing, Exporting or Possessing a 

Listed Chemical; Attempt or 

Conspiracy), the new specific offense 

characteristics would not apply. Should 

the Commission establish similar 

specific offense characteristics in 

§ 2D1.2, § 2D1.5, and § 2D1.11? 

11. What other changes, if any, should 

the Commission make to the Guidelines 

Manual under the emergency authority 

provided by section 8 of the Act? 

(D) Maximum Base Offense Level for 

Minimal Role (‘‘Minimal Role Cap’’) 

Synopsis of Proposed Amendment: 

This part of the proposed amendment 

responds to section 7(1) of the Act, 

which contains a directive to the 

Commission to ‘‘review and amend the 

Federal sentencing guidelines and 

policy statements to ensure that * * * 

if the defendant is subject to a minimal 

role adjustment under the guidelines, 

the base offense level for the defendant 

based solely on drug quantity shall not 

exceed level 32.’’ 

This part of the proposed amendment 

implements the directive by adding a 

new sentence to the end of § 2D1.1(a)(5) 

(the so-called ‘‘mitigating role cap’’), to 

reflect the ‘‘minimal role cap’’ of level 32 

required by the directive. 

Proposed Amendment: 

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

adding at the end the following: 

‘‘If the resulting offense level is greater 

than level 32 and the defendant receives 

an adjustment under subsection (a) of 

§ 3B1.2, decrease to level 32.’’. 

[FR Doc. 2010–22337 Filed 9–7–10; 8:45 am] 

BILLING CODE 2210–40–P 

UNITED STATES SENTENCING 

COMMISSION 

Sentencing Guidelines for United 

States Courts 

AGENCY: United States Sentencing 

Commission. 

ACTION: Notice of period during which 

individuals may apply to be appointed 

to certain voting memberships of the 

Practitioners Advisory Group; request 

for applications. 

SUMMARY: Because the terms of certain 

voting members of the Practitioners 

Advisory Group are expiring as of 

October 2010, the United States 

Sentencing Commission hereby invites 

any individual who is eligible to be 

appointed to succeed such a voting 

member to apply. The voting 

memberships covered by this notice are 

two circuit memberships (for the 

Second Circuit and District of Columbia 

Circuit) and one at-large voting 

membership. Applications should be 

received by the Commission not later 

than November 8, 2010. Applications 

may be sent to Michael Courlander at 

the address listed below. 

DATES: Applications for voting 

membership of the Practitioners 

Advisory Group should be received not 

later than November 8, 2010. 

ADDRESSES: Send applications to: 

United States Sentencing Commission, 

One Columbus Circle, NE., Suite 2–500, 

South Lobby, Washington, DC 20002– 

8002, Attention: Public Affairs. 

FOR FURTHER INFORMATION CONTACT: 

Michael Courlander, Public Affairs 

Officer, Telephone: (202) 502–4597. 

SUPPLEMENTARY INFORMATION: The 

Practitioners Advisory Group of the 

United States Sentencing Commission is 

a standing advisory group of the United 

States Sentencing Commission pursuant 

to 28 U.S.C. 995 and Rule 5.4 of the 

Commission’s Rules of Practice and 

Procedure. Under the charter for the 

advisory group, the purpose of the 

advisory group is (1) To assist the 

Commission in carrying out its statutory 

responsibilities under 28 U.S.C. 994(o); 

(2) to provide to the Commission its 

views on the Commission’s activities 

and work, including proposed priorities 

and amendments; (3) to disseminate to 

defense attorneys, and to other 

professionals in the defense community, 

information regarding federal 

sentencing issues; and (4) to perform 

other related functions as the 

Commission requests. The advisory 

group consists of not more than 17 

voting members, each of whom may 

serve not more than two consecutive 

three-year terms. Of those 17 voting 

members, one shall be Chair, one shall 

be Vice Chair, 12 shall be circuit 

members (one for each federal judicial 

circuit other than the Federal Circuit), 

and three shall be at-large members. 

To be eligible to serve as a voting 

member, an individual must be an 

attorney who (1) devotes a substantial 

portion of his or her professional work 

to advocating the interests of privatelyrepresented individuals, or of 

individuals represented by private 

practitioners through appointment 

under the Criminal Justice Act of 1964, 

within the federal criminal justice 

system; (2) has significant experience 

with federal sentencing or postconviction issues related to criminal 

sentences; and (3) is in good standing of 

the highest court of the jurisdiction or 

jurisdictions in which he or she is 

admitted to practice. Additionally, to be 

eligible to serve as a circuit member, the 

individual’s primary place of business 

or a substantial portion of his or her 

practice must be in the circuit 

concerned. Each voting member is 

appointed by the Commission. 

The Commission invites any 

individual who is eligible to be 

appointed to a voting membership 

covered by this notice to apply. 

Authority: 28 U.S.C. 994(a), (o), (p), § 995; 

USSC Rules of Practice and Procedure 5.2, 

5.4. 

William K. Sessions III, 

Chair. 

[FR Doc. 2010–22343 Filed 9–7–10; 8:45 am] 

BILLING CODE 2211–04–P 


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