[Federal Register Volume 75, Number 207 (Wednesday, October 27, 2010)]
[Notices]
[Pages 66188-66193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-27147]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of a temporary, emergency amendment to sentencing 
guidelines and commentary.

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SUMMARY: Pursuant to section 8 of the Fair Sentencing Act of 2010, 
Public Law 111-220, the Commission hereby gives notice of a temporary, 
emergency amendment to the sentencing guidelines and commentary. This 
notice sets forth the temporary, emergency amendment and the reason for 
amendment.
    The specific amendment in this notice is as follows: An amendment 
regarding offenses involving crack cocaine (particularly offenses 
covered by Sec. Sec.  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 Sec.  2D1.1) to implement section 8 of the Fair Sentencing Act of 
2010, Public Law 111-220.

DATES: The Commission has specified an effective date of November 1, 
2010, for the emergency amendment.

[[Page 66189]]


FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs 
Officer, Telephone: (202) 502-4597.

SUPPLEMENTARY INFORMATION: The Commission must promulgate a temporary, 
emergency amendment to implement the directive in section 8 the Fair 
Sentencing Act of 2010, Public Law 111-220, by November 1, 2010. On 
September 8, 2010, the Commission published in the Federal Register a 
proposed amendment and issues for comment regarding the implementation 
of this directive. See 75 FR 54700 (September 8, 2010).
    The temporary, emergency amendment set forth in this notice also 
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, Pub. L. 111-220.

William K. Sessions III,
Chair.

Fair Sentencing Act of 2010

    1. 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 the 4-level (`minimal participant') reduction in 
Sec.  3B1.2(a), decrease to level 32.''.
    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 levels.'';
    By inserting after subdivision (10), as redesignated by this 
amendment, the following:
    ``(11) If the defendant bribed, or attempted to bribe, a law 
enforcement officer to facilitate the commission of the offense, 
increase by 2 levels.
    (12) If the defendant maintained a premises for the purpose of 
manufacturing or distributing a controlled substance, increase by 2 
levels.'';
    By inserting after subdivision (13), as redesignated by this 
amendment, the following:
    ``(14) If the defendant receives an adjustment under Sec.  3B1.1 
(Aggravating Role) and the offense involved 1 or more of the following 
factors:
    (A)(i) The defendant used fear, impulse, friendship, affection, or 
some combination thereof to involve another individual in the illegal 
purchase, sale, transport, or storage of controlled substances, (ii) 
the individual received little or no compensation from the illegal 
purchase, sale, transport, or storage of controlled substances, and 
(iii) the individual had minimal knowledge of the scope and structure 
of the enterprise;
    (B) The defendant, knowing that an individual was (i) less than 18 
years of age, (ii) 65 or more years of age, (iii) pregnant, or (iv) 
unusually vulnerable due to physical or mental condition or otherwise 
particularly susceptible to the criminal conduct, distributed a 
controlled substance to that individual or involved that individual in 
the offense;
    (C) The defendant was directly involved in the importation of a 
controlled substance;
    (D) 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;
    (E) The defendant committed the offense as part of a pattern of 
criminal conduct engaged in as a livelihood,
    Increase by 2 levels.
    (15) If the defendant receives the 4-level (`minimal participant') 
reduction in Sec.  3B1.2(a) and the offense involved all of the 
following factors:
    (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 received no monetary compensation from the 
illegal purchase, sale, transport, or storage of controlled substances; 
and
    (C) The defendant had minimal knowledge of the scope and structure 
of the enterprise,
    Decrease by 2 levels.''.
    Section 2D1.1(c) is amended in subdivision (1) in the third entry 
by striking ``4.5'' and inserting ``8.4''; in subdivision (2) in the 
third entry by striking ``1.5'' and inserting ``2.8''; by striking 
``4.5'' and inserting ``8.4''; in subdivision (3) in the third entry by 
striking ``500'' and inserting ``840''; by striking ``1.5'' and 
inserting ``2.8''; in subdivision (4) in the third entry by striking 
``150'' and inserting ``280''; by striking ``500'' and inserting 
``840''; in subdivision (5) in the third entry by striking ``50'' and 
inserting ``196''; by striking ``150'' and inserting ``280''; in 
subdivision (6) in the third entry by striking ``35'' and inserting 
``112''; by striking ``50'' and inserting ``196''; in subdivision (7) 
in the third entry by striking ``20'' and inserting ``28''; by striking 
``35'' and inserting ``112''; in subdivision (8) in the third entry by 
striking ``5'' and inserting ``22.4''; by striking ``20'' and inserting 
``28''; in subdivision (9) in the third entry by striking ``4'' and 
inserting ``16.8''; by striking ``5'' and inserting ``22.4''; in 
subdivision (10) in the third entry by striking ``3'' and inserting 
``11.2''; by striking ``4'' and inserting ``16.8''; in subdivision (11) 
in the third entry by striking ``2'' and inserting ``5.6''; by striking 
``3'' and inserting ``11.2''; in subdivision (12) in the third entry by 
striking ``1'' and inserting ``2.8''; by striking ``2'' and inserting 
``5.6''; in subdivision (13) in the third entry by striking ``500 MG'' 
and inserting ``1.4 G''; by striking ``1'' and inserting ``2.8''; and 
in subdivision (14) in the third entry by striking ``500 MG'' and 
inserting ``1.4 G''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 3 by inserting ``Application of Subsections (b)(1) and 
(b)(2).--
    (A) Application of Subsection (b)(1).--'' before ``Definitions'';
    By inserting ``in subsection (b)(1)'' after ``weapon possession''; 
by striking ``adjustment'' and inserting ``enhancement''; by striking 
``his'' and inserting ``the defendant's''; and by adding at the end the 
following:
    ``(B) Interaction of Subsections (b)(1) and (b)(2).--The 
enhancements in subsections (b)(1) and (b)(2) may be applied 
cumulatively (added together), as is generally the case when two or 
more specific offense characteristics each apply. See Sec.  1B1.1 
(Application Instructions), Application Note 4(A). However, in a case 
in which the defendant merely possessed a dangerous weapon but did not 
use violence, make a credible threat to use violence, or direct the use 
of violence, subsection (b)(2) would not apply.''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 8 in the last paragraph by striking ``(2)'' and 
inserting ``(3)''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 10(B) in the first paragraph by striking ``(Except 
Cocaine Base)'' after ``Differing Controlled Substances''; and by 
striking the sentence beginning ``To determine''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 10(C) by striking ``(Except Cocaine Base)'' after 
``Differing Controlled Substances''; and in subdivision (C)(iii) by 
striking ``five kilograms of marihuana'' and inserting ``2 grams of 
cocaine base''; by inserting ``, and the cocaine base is equivalent to 
7.142 kilograms of marihuana'' after ``16 kilograms of marihuana''; and 
by striking ``21'' and inserting ``23.142''.

[[Page 66190]]

    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 10 by striking subdivision (D); and by redesignating 
subdivision (E) as subdivision (D).
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 10(D), as redesignated by this amendment, in the table 
captioned ``Cocaine and Other Schedule I and II Stimulants (and their 
immediate precursors)*'' in the line referenced to Cocaine Base by 
striking ``20 kg'' and inserting ``3,571 gm''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended 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 Sec.  2D1.1 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``27. Application of Subsection (b)(11).--Subsection (b)(11) does 
not apply if the purpose of the bribery was to obstruct or impede the 
investigation, prosecution, or sentencing of the defendant. Such 
conduct is covered by Sec.  3C1.1 (Obstructing or Impeding the 
Administration of Justice) and, if applicable, Sec.  2D1.1(b)(14)(D).
    28. Application of Subsection (b)(12).--Subsection (b)(12) applies 
to a defendant who knowingly maintains a premises (i.e., a `building, 
room, or enclosure,' see Sec.  2D1.8, comment. (backg'd.)) for the 
purpose of manufacturing or distributing a controlled substance.
    Among the factors the court should consider in determining whether 
the defendant `maintained' the premises are (A) whether the defendant 
held a possessory interest in (e.g., owned or rented) the premises and 
(B) the extent to which the defendant controlled access to, or 
activities at, the premises.
    Manufacturing or distributing a controlled substance need not be 
the sole purpose for which the premises was maintained, but must be one 
of the defendant's primary or principal uses for the premises, rather 
than one of the defendant's incidental or collateral uses for the 
premises. In making this determination, the court should consider how 
frequently the premises was used by the defendant for manufacturing or 
distributing a controlled substance and how frequently the premises was 
used by the defendant for lawful purposes.
    29. Application of Subsection (b)(14).--
    (A) Distributing to a Specified Individual or Involving Such an 
Individual in the Offense (Subsection (b)(14)(B)).--If the defendant 
distributes a controlled substance to an individual or involves an 
individual in the offense, as specified in subsection (b)(14)(B), the 
individual is not a `vulnerable victim' for purposes of Sec.  3A1.1(b).
    (B) Directly Involved in the Importation of a Controlled Substance 
(Subsection (b)(14)(C)).--Subsection (b)(14)(C) applies if the 
defendant is accountable for the importation of a controlled substance 
under subsection (a)(1)(A) of Sec.  1B1.3 (Relevant Conduct (Factors 
that Determine the Guideline Range)), i.e., the defendant committed, 
aided, abetted, counseled, commanded, induced, procured, or willfully 
caused the importation of a controlled substance.
    If subsection (b)(3) or (b)(5) applies, do not apply subsection 
(b)(14)(C).
    (C) Pattern of Criminal Conduct Engaged in as a Livelihood 
(Subsection (b)(14)(E)).--For purposes of subsection (b)(14)(E), 
`pattern of criminal conduct' and `engaged in as a livelihood' have the 
meaning given such terms in Sec.  4B1.3 (Criminal Livelihood).''.
    The Commentary to Sec.  2D1.1 captioned ``Background'' is amended 
by inserting after the paragraph that begins ``For marihuana plants'' 
the following:
    ``The last sentence of subsection (a)(5) implements the directive 
to the Commission in section 7(1) of Public Law 111-220.
    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(3) 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)''.
    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 Sec.  2D2.1 captioned ``Background'' is amended 
by striking ``five'' and inserting ``three''; and by striking the last 
paragraph.
    Section 2K2.4 captioned ``Application Notes'' is amended in Note 4 
by inserting after the first paragraph the following:
    ``A sentence under this guideline also accounts for conduct that 
would subject the defendant to an enhancement under Sec.  2D1.1(b)(2) 
(pertaining to use of violence, credible threat to use violence, or 
directing the use of violence). Do not apply that enhancement when 
determining the sentence for the underlying offense.''.
    The Commentary to Sec.  3B1.4 captioned ``Application Notes'' is 
amended in Note 2 by adding at the end as the last sentence the 
following: ``For example, if the defendant receives an enhancement 
under Sec.  2D1.1(b)(14)(B) for involving an individual less than 18 
years of age in the offense, do not apply this adjustment.''.
    The Commentary to Sec.  3C1.1 captioned ``Application Notes'' is 
amended in Note 7 by adding at the end the following new paragraph:
    ``Similarly, if the defendant receives an enhancement under Sec.  
2D1.1(b)(14)(D), do not apply this adjustment.''.
    Reason for Amendment: This amendment implements the emergency 
directive in section 8 of the Fair Sentencing Act of 2010, Public Law 
111-220 (the ``Act''). The Act reduced the statutory penalties for 
cocaine base (``crack cocaine'') offenses, eliminated the statutory 
mandatory minimum sentence for simple possession of crack cocaine, and 
contained directives requiring the Commission to review and amend the 
guidelines to account for specified aggravating and mitigating 
circumstances in certain drug cases. The emergency amendment authority 
provided in section 8 of the Act required the Commission to promulgate 
the guidelines, policy statements, or amendments provided for in the 
Act, and to make such conforming changes to the guidelines as the 
Commission determines necessary to achieve

[[Page 66191]]

consistency with other guideline provisions and applicable law, not 
later than 90 days after the date of enactment of the Act.
    First, the amendment amends the Drug Quantity Table in Sec.  2D1.1 
(Unlawful Manufacturing, Importing, Exporting, or Trafficking 
(Including Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy) to account for the changes in the statutory penalties made 
in section 2 of the Act. Section 2 of the Act reduced the statutory 
penalties for offenses involving manufacturing or trafficking in crack 
cocaine by increasing the quantity thresholds required to trigger a 
mandatory minimum term of imprisonment. The quantity threshold required 
to trigger the 5-year mandatory minimum term of imprisonment was 
increased from 5 grams to 28 grams, and the quantity threshold required 
to trigger the 10-year mandatory minimum term of imprisonment was 
increased from 50 grams to 280 grams. See 21 U.S.C. 841(b)(1)(A), (B), 
(C), 960(b)(1), (2), (3).
    To account for these statutory changes, the amendment conforms the 
guideline penalty structure for crack cocaine offenses to the approach 
followed for other drugs, i.e., the base offense levels for crack 
cocaine are set in the Drug Quantity Table so that the statutory 
minimum penalties correspond to levels 26 and 32. See generally Sec.  
2D1.1, comment. (backg'd.). Accordingly, using the new drug quantities 
established by the Act, offenses involving 28 grams or more of crack 
cocaine are assigned a base offense level of 26, offenses involving 280 
grams or more of crack cocaine are assigned a base offense level of 32, 
and other offense levels are established by extrapolating upward and 
downward. Conforming to this approach ensures that the relationship 
between the statutory penalties for crack cocaine offenses and the 
statutory penalties for offenses involving other drugs is consistently 
and proportionally reflected throughout the Drug Quantity Table.
    To provide a means of obtaining a single offense level in cases 
involving crack cocaine and one or more other controlled substances, 
the amendment also establishes a marihuana equivalency for crack 
cocaine under which 1 gram of crack cocaine is equivalent to 3,571 
grams of marihuana. (The marihuana equivalency for any controlled 
substance is a constant that can be calculated using any threshold in 
the Drug Quantity Table by dividing the amount of marihuana 
corresponding to that threshold by the amount of the other controlled 
substance corresponding to that threshold. For example, the threshold 
quantities at base offense level 26 are 100,000 grams of marihuana and 
28 grams of crack cocaine; 100,000 grams divided by 28 is 3,571 grams.) 
In the commentary to Sec.  2D1.1, the amendment makes a conforming 
change to the rules for cases involving both crack cocaine and one or 
more other controlled substances.
    The amendment deletes the special rules in Note 10(D) for cases 
involving crack cocaine and one or more other controlled substances, 
and revises Note 10(C) so that it provides an example of such a case.
    Second, the amendment amends Sec.  2D1.1 to add a sentence at the 
end of subsection (a)(5) (often referred to as the ``mitigating role 
cap''). The new provision provides that if the offense level otherwise 
resulting from subsection (a)(5) is greater than level 32, and the 
defendant receives the 4-level (``minimal participant'') reduction in 
subsection (a) of Sec.  3B1.2 (Mitigating Role), the base offense level 
shall be decreased to level 32. This provision responds to section 7(1) 
of the Act, which directed the Commission 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.''
    Third, the amendment amends Sec.  2D1.1 to create a new specific 
offense characteristic at subsection (b)(2) providing an enhancement of 
2 levels if the defendant used violence, made a credible threat to use 
violence, or directed the use of violence. The new specific offense 
characteristic responds to section 5 of the Act, which directed the 
Commission 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.''
    The amendment also revises the commentary to Sec.  2D1.1 to clarify 
how this new specific offense characteristic interacts with subsection 
(b)(1). Specifically, Application Note 3 is amended to provide that the 
enhancements in subsections (b)(1) (regarding possession of a dangerous 
weapon) and (b)(2) may be applied cumulatively. However, in a case in 
which the defendant merely possessed a dangerous weapon but did not use 
violence, make a credible threat to use violence, or direct the use of 
violence, subsection (b)(2) would not apply.
    In addition, the amendment makes a conforming change to the 
commentary to Sec.  2K2.4 (Use of Firearm, Armor-Piercing Ammunition, 
or Explosive During or in Relation to Certain Crimes) to address cases 
in which the defendant is sentenced under both Sec.  2D1.1 (for a drug 
trafficking offense) and Sec.  2K2.4 (for an offense under 18 U.S.C. 
924(c)). In such a case, the sentence under Sec.  2K2.4 accounts for 
any weapon enhancement; therefore, in determining the sentence under 
Sec.  2D1.1, the weapon enhancement in Sec.  2D1.1(b)(1) does not 
apply. See Sec.  2K2.4, comment. (n. 4). The amendment amends this 
commentary to similarly provide that, in a case in which the defendant 
is sentenced under both Sec. Sec.  2D1.1 and 2K2.4, the new enhancement 
at Sec.  2D1.1(b)(2) also is accounted for by Sec.  2K2.4 and, 
therefore, does not apply.
    Fourth, the amendment amends Sec.  2D1.1 to create a new specific 
offense characteristic at subsection (b)(11) providing an enhancement 
of 2 levels if the defendant bribed, or attempted to bribe, a law 
enforcement officer to facilitate the commission of the offense. The 
new specific offense characteristic responds to section 6(1) of the 
Act, which directed the Commission ``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.''
    The amendment also revises the commentary to Sec.  2D1.1 to clarify 
how this new specific offense characteristic interacts with the 
adjustment at Sec.  3C1.1 (Obstructing or Impeding the Administration 
of Justice). Specifically, new Application Note 27 provides that 
subsection (b)(11) does not apply if the purpose of the bribery was to 
obstruct or impede the investigation, prosecution, or sentencing of the 
defendant because such conduct is covered by Sec.  3C1.1.
    Fifth, the amendment amends Sec.  2D1.1 to create a new specific 
offense characteristic at subsection (b)(12) providing an enhancement 
of 2 levels if the defendant maintained a premises for the purpose of 
manufacturing or distributing a controlled substance. The new specific 
offense characteristic responds to section 6(2) of the Act, which 
directed the Commission 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).''
    The amendment also adds commentary in Sec.  2D1.1 at Application

[[Page 66192]]

Note 28 providing that among the factors the court should consider in 
determining whether the defendant ``maintained'' the premises are (A) 
whether the defendant held a possessory interest (e.g., owned or 
rented) the premises and (B) the extent to which the defendant 
controlled access to, or activities at, the premises. Application Note 
28 also provides that manufacturing or distributing a controlled 
substance need not be the sole purpose for which the premises was 
maintained, but must be one of the defendant's primary or principal 
uses for the premises, rather than one of the defendant's incidental or 
collateral uses of the premises. In making this determination, the 
court should consider how frequently the premises was used by the 
defendant for manufacturing or distributing a controlled substance and 
how frequently the premises was used by the defendant for lawful 
purposes.
    Sixth, the amendment amends Sec.  2D1.1 to create a new specific 
offense characteristic at subsection (b)(14) that provides an 
enhancement of 2 levels if the defendant receives an adjustment under 
Sec.  3B1.1 (Aggravating Role) and the offense involved one or more of 
five specified factors. The new specific offense characteristic 
responds to section 6(3) of the Act, which directed the Commission ``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.''
    The amendment also revises the commentary to Sec.  2D1.1 to provide 
guidance in applying the new specific offense characteristic at Sec.  
2D1.1(b)(14). Specifically, new Application Note 29 provides that if 
the defendant distributes a controlled substance to an individual or 
involves an individual in the offense, as specified in subsection 
(b)(14)(B), the individual is not a ``vulnerable victim'' for purposes 
of subsection (b) of Sec.  3A1.1 (Hate Crime Motivation or Vulnerable 
Victim). Application Note 29 also provides that subsection (b)(14)(C) 
applies if the defendant committed, aided, abetted, counseled, 
commanded, induced, procured, or willfully caused the importation of a 
controlled substance. Subsection (b)(14)(C), however, does not apply if 
subsection (b)(3) or (b)(5) (as redesignated by the amendment) applies 
because the defendant's involvement in importation is adequately 
accounted for by those subsections. In addition, Application Note 29 
defines ``pattern of criminal conduct'' and ``engaged in as a 
livelihood'' for purposes of subsection (b)(14)(E) as those terms are 
defined in Sec.  4B1.3 (Criminal Livelihood).
    The amendment also revises the commentary in Sec.  3B1.4 (Using a 
Minor To Commit a Crime) and Sec.  3C1.1 (Obstructing or Impeding the 
Administration of Justice) to specify how those adjustments interact 
with Sec.  2D1.1(b)(14)(B) and (D), respectively. Specifically, 
Application Note 2 to Sec.  3B1.4 is amended to clarify that the 
increase of two levels under this section would not apply if the 
defendant receives an enhancement under Sec.  2D1.1(b)(14)(B). 
Similarly, Application Note 7 to Sec.  3C1.1 is amended to clarify that 
the increase of two levels under this section would not apply if the 
defendant receives an enhancement under Sec.  2D1.1(b)(14)(D).
    Seventh, the amendment amends Sec.  2D1.1 to create a new specific 
offense characteristic providing a 2-level downward adjustment if the 
defendant receives the 4-level (``minimal participant'') reduction in 
subsection (a) of Sec.  3B1.2 (Mitigating Role) and the offense 
involved each of three additional specified factors: Namely, the 
defendant was motivated by an intimate or familial relationship or by 
threats or fear to commit the offense when the defendant was otherwise 
unlikely to commit such an offense; was to receive no monetary 
compensation from the illegal purchase, sale, transport, or storage of 
controlled substances; and had minimal knowledge of the scope and 
structure of the enterprise. The specific offense characteristic 
responds to section 7(2) of the Act, which directed the Commission 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.''
    Eighth, to reflect the renumbering of specific offense 
characteristics in Sec.  2D1.1(b) by the amendment, technical and 
conforming changes are made to the commentary to Sec.  2D1.1 and to 
Sec.  2D1.14 (Narco-Terrorism).
    Ninth, the amendment amends Sec.  2D2.1 (Unlawful Possession; 
Attempt or Conspiracy) to account for the changes in the statutory 
penalties for simple possession of crack cocaine made in section 3 of 
the Act. Section 3 of the Act 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). To account for this 
statutory change, the amendment deletes the cross reference at Sec.  
2D2.1(b)(1) under which an offender who possessed more than 5 grams of

[[Page 66193]]

crack cocaine was sentenced under the drug trafficking guideline, Sec.  
2D1.1.

[FR Doc. 2010-27147 Filed 10-26-10; 8:45 am]
BILLING CODE 2210-40-P