2570 Federal Register / Vol. 80, No. 11 / Friday, January 16, 2015 / Notices 

UNITED STATES SENTENCING 

COMMISSION 

Sentencing Guidelines for United 

States Courts 

AGENCY: United States Sentencing 

Commission. 

ACTION: Notice of proposed amendments 

to sentencing guidelines, policy 

statements, and commentary. Request 

for public comment, including public 

comment regarding retroactive 

application of any of the proposed 

amendments. Notice of public hearing. 

SUMMARY: Pursuant to section 994(a), 

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

Code, the United States Sentencing 

Commission is considering 

promulgating certain amendments to the 

sentencing guidelines, policy 

statements, and commentary. This 

notice sets forth the proposed 

amendments and, for each proposed 

amendment, a synopsis of the issues 

addressed by that amendment. This 

notice also sets forth a number of issues 

for comment, some of which are set 

forth together with the proposed 

amendments; one of which is set forth 

independent of any proposed 

amendment; and one of which 

(regarding retroactive application of 

proposed amendments) is set forth in 

the Supplementary Information portion 

of this notice. 

The proposed amendments and issues 

for comment in this notice are as 

follows: 

(1) a proposed amendment to make 

certain technical changes to the 

Guidelines Manual, including (A) 

technical changes to reflect the editorial 

reclassification of certain sections of the 

United States Code, (B) stylistic and 

technical changes to the Commentary 

following § 3D1.5 (Determining the 

Total Punishment) captioned 

‘‘Illustrations of the Operation of the 

Multiple-Count Rules’’ to better reflect 

its purpose as a concluding commentary 

to Part D of Chapter Three, and (C) 

clerical changes to § 2D1.11 (Unlawful 

Distributing, Importing, Exporting or 

Possessing a Listed Chemical; Attempt 

or Conspiracy) and to the commentary 

of other guidelines; 

(2) a proposed amendment to § 4A1.2 

(Definitions and Instructions for 

Computing Criminal History) to respond 

to a circuit conflict regarding the 

meaning of the ‘‘single sentence’’ rule 

and its implications for the career 

offender guideline and other guidelines 

that use predicate offenses, and related 

issues for comment; 

(3) a proposed amendment to § 1B1.3 

(Relevant Conduct (Factors that 

Determine the Guideline Range)) to 

provide more guidance on the use of 

‘‘jointly undertaken criminal activity’’ 

in determining relevant conduct under 

the guidelines, and a related issue for 

comment on whether the Commission 

should make changes for policy reasons 

to the operation of ‘‘jointly undertaken 

criminal activity’’; 

(4) a proposed amendment to revise 

the monetary tables throughout the 

Guidelines Manual, including options 

for amending the monetary tables in the 

guidelines to adjust for inflation, 

conforming changes to other guidelines 

that refer to monetary tables, and related 

issues for comment; 

(5) a proposed amendment to § 3B1.2 

(Mitigating Role) to respond to a circuit 

conflict regarding what determining the 

‘‘average participant’’ requires, to revise 

the Commentary to state that certain 

individuals who perform limited 

functions in criminal activity may 

receive a mitigating role adjustment, 

and to provide a non-exhaustive list of 

factors for the court to consider in 

determining whether to apply a 

mitigating role adjustment and the 

amount of the adjustment, and a related 

issue for comment on the application of 

the mitigating role adjustment; 

(6) a detailed request for comment on 

offenses in which controlled substances 

are colored, packaged, or flavored in 

ways to appear to be designed to attract 

use by children; 

(7) a proposed amendment to § 2D1.1 

(Unlawful Manufacturing, Importing, 

Exporting, or Trafficking (Including 

Possession with Intent to Commit These 

Offenses); Attempt or Conspiracy) to 

address the new statutory penalty 

structure for offenses involving 

hydrocodone and hydrocodone 

combination products in light of recent 

administrative actions by the Food and 

Drug Administration and the Drug 

Enforcement Administration, and a 

related issue for comment; and 

(8) a proposed amendment to § 2B1.1 

(Theft, Property, Destruction, and 

Fraud), including (A) options to revise 

the definition of ‘‘intended loss’’ at 

§ 2B1.1, comment. (n.3(A)(ii)), (B) 

options to address the impact of the 

victims table in § 2B1.1(b)(2), (C) a 

proposed amendment to revise the 

specific offense characteristic for 

sophisticated means in subsection 

(b)(10)(C), and (D) a proposed 

amendment to address offenses 

involving fraud on the market and 

related offenses, and related issues for 

comment. 

DATES: (1) Written Public Comment.— 

Written public comment regarding the 

proposed amendments and issues for 

comment set forth in this notice, 

including public comment regarding 

retroactive application of any of the 

proposed amendments, should be 

received by the Commission not later 

than March 18, 2015. 

(2) Public Hearing.—The Commission 

plans to hold a public hearing regarding 

the proposed amendments and issues 

for comment set forth in this notice on 

March 12, 2015. Further information 

regarding the public hearing, including 

requirements for testifying and 

providing written testimony, as well as 

the location, time, and scope of the 

hearing, will be provided by the 

Commission on its Web site at 

www.ussc.gov. 

ADDRESSES: Public comment should be 

sent to the Commission by electronic 

mail or regular mail. The email address 

for public comment is Public_

Comment@ussc.gov. The regular mail 

address for public comment is United 

States Sentencing Commission, One 

Columbus Circle NE., Suite 2–500, 

Washington, DC 20002–8002, Attention: 

Public Affairs. 

FOR FURTHER INFORMATION CONTACT: 

Jeanne Doherty, Public Affairs Officer, 

(202) 502–4502, jdoherty@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 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 each year pursuant to 28 U.S.C. 

994(p). 

The proposed amendments in this 

notice are presented in one of two 

formats. First, some of the amendments 

are proposed as specific revisions to a 

guideline or commentary. Bracketed text 

within a proposed amendment indicates 

a heightened interest on the 

Commission’s part in 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 


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Federal Register / Vol. 80, No. 11 / Friday, January 16, 2015 / Notices 2571 

suggestions on how the Commission 

should respond to those issues. 

The Commission requests public 

comment regarding whether, pursuant 

to 18 U.S.C. 3582(c)(2) and 28 U.S.C. 

994(u), any proposed amendment 

published in this notice should be 

included in subsection (c) of § 1B1.10 

(Reduction in Term of Imprisonment as 

a Result of Amended Guideline Range 

(Policy Statement)) as an amendment 

that may be applied retroactively to 

previously sentenced defendants. The 

Commission lists in § 1B1.10(c) the 

specific guideline amendments that the 

court may apply retroactively under 18 

U.S.C. 3582(c)(2). The background 

commentary to § 1B1.10 lists the 

purpose of the amendment, the 

magnitude of the change in the 

guideline range made by the 

amendment, and the difficulty of 

applying the amendment retroactively 

to determine an amended guideline 

range under § 1B1.10(b) as among the 

factors the Commission considers in 

selecting the amendments included in 

§ 1B1.10(c). To the extent practicable, 

public comment should address each of 

these factors. 

Publication of a proposed amendment 

requires the affirmative vote of at least 

three voting members and is deemed to 

be a request for public comment on the 

proposed amendment. See Rules 2.2 and 

4.4 of the Commission’s Rules of 

Practice and Procedure. In contrast, the 

affirmative vote of at least four voting 

members is required to promulgate an 

amendment and submit it to Congress. 

See Rule 2.2; 28 U.S.C. 994(p). 

Additional information pertaining to 

the proposed amendments described in 

this notice may be accessed through the 

Commission’s Web site at 

www.ussc.gov. 

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

USSC Rules of Practice and Procedure, Rule 

4.4. 

Patti B. Saris, 

Chair. 

1. Technical Amendment 

Synopsis of Proposed Amendment: 

This proposed amendment makes 

certain technical changes to the 

Guidelines Manual. 

The proposed amendment contains 

three parts, as follows. 

Part A sets forth technical changes to 

reflect the editorial reclassification of 

certain sections in the United States 

Code. Effective February 2014, the 

Office of the Law Revision Counsel 

transferred provisions relating to voting 

and elections from titles 2 and 42 to a 

new title 52. It also transferred 

provisions of the National Security Act 

of 1947 from one place to another in 

title 50. To reflect the new section 

numbers of the reclassified provisions, 

changes are made to— 

(1) the Commentary to § 2C1.8 

(Making, Receiving, or Failing to Report 

a Contribution, Donation, or 

Expenditure in Violation of the Federal 

Election Campaign Act; Fraudulently 

Misrepresenting Campaign Authority; 

Soliciting or Receiving a Donation in 

Connection with an Election While on 

Certain Federal Property); 

(2) the Commentary to § 2H2.1 

(Obstructing an Election or 

Registration); 

(3) the Commentary to § 2M3.9 

(Disclosure of Information Identifying a 

Covert Agent); 

(4) Application Note 5 to § 5E1.2 

(Fines for Individual Defendants); and 

(5) Appendix A (Statutory Index). 

Part B makes stylistic and technical 

changes to the Commentary following 

§ 3D1.5 (Determining the Total 

Punishment) captioned ‘‘Illustrations of 

the Operation of the Multiple-Count 

Rules’’ to better reflect its purpose as a 

concluding commentary to Part D of 

Chapter Three. 

Part C makes clerical changes to— 

(1) the Background Commentary to 

§ 1B1.11 (Use of Guidelines Manual in 

Effect on Date of Sentencing (Policy 

Statement)), to correct a typographical 

error in a U.S. Reports citation; 

(2) the Commentary to § 2B4.1 

(Bribery in Procurement of Bank Loan 

and Other Commercial Bribery), to 

correct certain United States Code 

citations to correspond with their 

respective references in Appendix A 

that were revised by Amendment 769 

(effective November 1, 2012); 

(3) subsection (e)(7) to § 2D1.11 

(Unlawfully Distributing, Importing, 

Exporting or Possessing a Listed 

Chemical; Attempt or Conspiracy), to 

add a missing measurement unit to the 

line referencing Norpseudoephedrine; 

and 

(4) Application Note 2 to § 2H4.2 

(Willful Violations of the Migrant and 

Seasonal Agricultural Worker Protection 

Act), to correct a typographical error in 

an abbreviation. 

(A) Reclassification of Sections of 

United States Code 

Proposed Amendment 

The Commentary to § 2C1.8 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘2 U.S.C.’’ and all that follows 

through ‘‘441k;’’ and after ‘‘18 U.S.C. 

607’’ inserting ‘‘; 52 U.S.C. 30109(d), 

30114, 30116, 30117, 30118, 30119, 

30120, 30121, 30122, 30123, 30124(a), 

30125, 30126’’; and by striking 

‘‘Statutory Index (Appendix A)’’ and 

inserting ‘‘Appendix A (Statutory 

Index)’’. 

The Commentary to § 2C1.8 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by striking ‘‘2 U.S.C. 441e(b)’’ 

and inserting ‘‘52 U.S.C. 30121(b)’’; by 

striking ‘‘2 U.S.C. 431 et seq’’ and 

inserting ‘‘52 U.S.C. 30101 et seq.’’; and 

by striking ‘‘(2 U.S.C. 431(8) and (9))’’ 

and inserting ‘‘(52 U.S.C. 30101(8) and 

(9))’’. 

The Commentary to § 2H2.1 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘42 U.S.C. 1973i, 1973j(a), (b)’’ 

and inserting ‘‘52 U.S.C. 10307, 

10308(a), (b)’’. 

The Commentary to § 2M3.9 is 

amended by striking ‘‘§ 421’’ each place 

such term appears and inserting 

‘‘§ 3121’’; and by striking ‘‘§ 421(d)’’ and 

inserting ‘‘§ 3121(d)’’. 

The Commentary to § 5E1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 5 by striking ‘‘2 U.S.C. 

437g(d)(1)(D)’’ and inserting ‘‘52 U.S.C. 

30109(d)(1)(D)’’; and by striking ‘‘2 

U.S.C. 441f’’ and inserting ‘‘52 U.S.C. 

30122’’. 

Appendix A (Statutory Index) is 

amended by striking the following line 

references: 

‘‘2 U.S.C. 437g(d) 2C1.8 

2 U.S.C. 439a 2C1.8 

2 U.S.C. 441a 2C1.8 

2 U.S.C. 441a–1 2C1.8 

2 U.S.C. 441b 2C1.8 

2 U.S.C. 441c 2C1.8 

2 U.S.C. 441d 2C1.8 

2 U.S.C. 441e 2C1.8 

2 U.S.C. 441f 2C1.8 

2 U.S.C. 441g 2C1.8 

2 U.S.C. 441h(a) 2C1.8 

2 U.S.C. 441i 2C1.8 

2 U.S.C. 441k 2C1.8’’, 

and inserting at the end the following 

new line references: 

‘‘52 U.S.C. 30109 2C1.8 

52 U.S.C. 30114 2C1.8 

52 U.S.C. 30116 2C1.8 

52 U.S.C. 30117 2C1.8 

52 U.S.C. 30118 2C1.8 

52 U.S.C. 30119 2C1.8 

52 U.S.C. 30120 2C1.8 

52 U.S.C. 30121 2C1.8 

52 U.S.C. 30122 2C1.8 

52 U.S.C. 30123 2C1.8 

52 U.S.C. 30124(a) 2C1.8 

52 U.S.C. 30125 2C1.8 

52 U.S.C. 30126 2C1.8’’; 

by striking the following line references: 

‘‘42 U.S.C. 1973i(c) 2H2.1 

42 U.S.C. 1973i(d) 2H2.1 

42 U.S.C. 1973i(e) 2H2.1 

42 U.S.C. 1973j(a) 2H2.1 

42 U.S.C. 1973j(b) 2H2.1 

42 U.S.C. 1973j(c) 2X1.1 

42 U.S.C. 1973aa 2H2.1 


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42 U.S.C. 1973aa–1 2H2.1 

42 U.S.C. 1973aa–1a 2H2.1 

42 U.S.C. 1973aa–3 2H2.1 

42 U.S.C. 1973bb 2H2.1 

42 U.S.C. 1973gg–10 2H2.1’’, 

and inserting after the line referenced 

to 50 U.S.C. App. 2410 the following 

new line references: 

‘‘52 U.S.C. 10307(c) 2H2.1 

52 U.S.C. 10307(d) 2H2.1 

52 U.S.C. 10307(e) 2H2.1 

52 U.S.C. 10308(a) 2H2.1 

52 U.S.C. 10308(b) 2H2.1 

52 U.S.C. 10308(c) 2X1.1 

52 U.S.C. 10501 2H2.1 

52 U.S.C. 10502 2H2.1 

52 U.S.C. 10503 2H2.1 

52 U.S.C. 10505 2H2.1 

52 U.S.C. 10701 2H2.1 

52 U.S.C. 20511 2H2.1’’; 

and by striking the line referenced to 

50 U.S.C. 421 and inserting after the line 

referenced to 50 U.S.C. 1705 the 

following new line reference: 

‘‘50 U.S.C. 3121 2M3.9’’. 

(B) Stylistic Changes to the Illustrations 

of the Operation of the Multiple-Count 

Rules 

Proposed Amendment 

The Commentary following § 3D1.5 

captioned ‘‘Illustrations of the 

Operation of the Multiple-Count Rules’’ 

is amended by striking the heading as 

follows: 

‘‘ Illustrations of the Operation of the 

Multiple-Count Rules’’, 

and inserting the following new 

heading: 

‘‘ Concluding Commentary to Part D 

of Chapter Three Illustrations of the 

Operation of the Multiple-Count Rules’’; 

in Examples 1 and 2 by striking 

‘‘convicted on’’ both places such term 

appears and inserting ‘‘convicted of’’; 

in Example 2 by striking ‘‘Defendant 

C’’ and inserting ‘‘Defendant B’’; 

and in Example 3 by striking 

‘‘Defendant D’’ and inserting 

‘‘Defendant C’’; by striking ‘‘$27,000’’, 

‘‘$12,000’’, ‘‘$15,000’’, and ‘‘$20,000’’ 

and inserting ‘‘$1,000’’ in each place 

such terms appear; by striking 

‘‘$74,000’’ and inserting ‘‘$4,000’’; and 

by striking ‘‘16’’ both places such term 

appears and inserting ‘‘9’’. 

(C) Clerical Changes 

Proposed Amendment 

The Commentary to § 1B1.11 

captioned ‘‘Background’’ is amended by 

striking ‘‘144 S. Ct.’’ and inserting ‘‘133 

S. Ct.’’. 

The Commentary to § 2B4.1 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘41 U.S.C. 53, 54’’ and inserting 

‘‘41 U.S.C. 8702, 8707’’. 

The Commentary to § 2B4.1 captioned 

‘‘Background’’ is amended by striking 

‘‘41 U.S.C. 51, 53–54’’ and inserting ‘‘41 

U.S.C. 8702, 8707’’. 

Section 2D1.11(e)(7) is amended in 

the line referenced to 

Norpseudoephedrine by striking ‘‘400’’ 

and inserting ‘‘400 G’’. 

The Commentary to § 2H4.2 captioned 

‘‘Application Notes’’ is amended in 

Note 2 by striking ‘‘et. seq.’’ and 

inserting ‘‘et seq.’’. 

2. ‘‘Single Sentence’’ Rule 

Synopsis of Proposed Amendment: 

This proposed amendment responds to 

a circuit conflict regarding the meaning 

of the ‘‘single sentence’’ rule and its 

implications for the career offender 

guideline and other guidelines that use 

predicate offenses. 

When the defendant’s criminal 

history includes two or more prior 

sentences that meet certain criteria 

specified in § 4A1.2(a)(2), those prior 

sentences are counted as a ‘‘single 

sentence’’ rather than separately. This 

operates to reduce the cumulative 

impact of the prior sentences on the 

criminal history score. Courts are now 

divided over whether this ‘‘single 

sentence’’ rule also causes certain prior 

sentences that ordinarily would qualify 

as predicates under the career offender 

guideline to be disqualified from serving 

as predicates. See § 4B1.2, comment. 

(n.3). 

The ‘‘single sentence’’ rule in 

subsection (a)(2) to § 4A1.2 (Definitions 

and Instructions for Computing 

Criminal History) provides: 

If the defendant has multiple prior 

sentences, determine whether those 

sentences are counted separately or as a 

single sentence. Prior sentences always are 

counted separately if the sentences were 

imposed for offenses that were separated by 

an intervening arrest (i.e., the defendant is 

arrested for the first offense prior to 

committing the second offense). If there is no 

intervening arrest, prior sentences are 

counted separately unless (A) the sentences 

resulted from offenses contained in the same 

charging instrument; or (B) the sentences 

were imposed on the same day. Count any 

prior sentence covered by (A) or (B) as a 

single sentence. See also § 4A1.1(e). 

For purposes of applying § 4A1.1(a), (b), 

and (c), if prior sentences are counted as a 

single sentence, use the longest sentence of 

imprisonment if concurrent sentences were 

imposed. If consecutive sentences were 

imposed, use the aggregate sentence of 

imprisonment. 

See § 4A1.2(a)(2). 

In 2010, in King v. United States, the 

Eighth Circuit held that when two or 

more prior sentences are counted as a 

single sentence, all the criminal history 

points attributable to the single sentence 

are assigned to only one of the prior 

sentences—specifically, the one that 

was the longest. King, 595 F.3d 844, 852 

(8th Cir. 2010). Accordingly, only that 

prior sentence may be considered a 

predicate for purposes of the career 

offender guideline. Id. at 849, 852. 

In King, there were two different sets 

of prior sentences that each qualified as 

a single sentence. Each set of prior 

sentences included a sentence that 

ordinarily would qualify as a career 

offender predicate and several other 

sentences that were not career offender 

predicates, imposed to run 

concurrently. The panel indicated that, 

within a ‘‘single sentence,’’ only one 

sentence receives the criminal history 

points. For the first set of sentences, one 

of the non-predicate sentences ‘‘should 

receive the criminal history point for 

this group because it was the longest.’’ 

Id. at 849. Accordingly, the sentence 

that ordinarily would qualify as a career 

offender predicate did not receive 

criminal history points and therefore 

did not qualify as a career offender 

predicate. Id. For the second set of 

sentences, the sentence that ordinarily 

would qualify as a career offender 

predicate was the same length as the 

one of the non-predicate sentences, and 

longer than any of the other sentences; 

it was unclear which of the two should 

be treated as the ‘‘longest.’’ Given the 

uncertainty, the panel applied the rule 

of lenity and attributed the criminal 

history points to the sentence that was 

not a career offender predicate. Id. As a 

result, the sentence that ordinarily 

would qualify as a career offender 

predicate did not receive criminal 

history points and did not qualify as a 

career offender predicate. 

In June 2014, in United States v. 

Williams, a panel of the Sixth Circuit 

considered and rejected King as 

‘‘nonsensical,’’ because it permitted the 

defendant to ‘‘evade career offender 

status because he committed more 

crimes.’’ Williams, 753 F.3d 626, 639 

(6th Cir. 2014) (emphasis in original). 

The facts in Williams were similar to the 

second set of sentences in King: The 

single sentence included one sentence 

that ordinarily would qualify as a career 

offender predicate and one sentence that 

was not a career offender predicate. The 

two sentences were equally long. 

Because each of the sentences ordinarily 

would receive criminal history points, 

the panel held, the sentence that 

ordinarily would qualify as a career 

offender predicate was not disqualified 

by the single sentence rule; it remained 

eligible to serve as a career offender 

predicate. Id. 

On August 26, 2014, a different panel 

of the Eighth Circuit agreed with the 


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Sixth Circuit’s analysis in Williams but 

was not in a position to overrule the 

earlier panel’s decision in King. See 

Donnell v. United States, 765 F.3d 817, 

820 (8th Cir. 2014) (‘‘we are bound by 

this court’s prior decision in King even 

though a majority of the panel believe 

it should now be overruled to eliminate 

a conflict with the Sixth Circuit’’). 

Before then, other panels of the Eighth 

Circuit had followed King, applying it to 

a case involving the firearms guideline 

rather than the career offender guideline 

and to a case in which the prior 

sentences were consecutive rather than 

concurrent. See, e.g., Pierce v. United 

States, 686 F.3d 529, 533 n.3 (8th Cir. 

2012) (indicating that the reasoning of 

King would also apply to predicate 

offenses under the firearms guideline); 

United States v. Parker, 762 F.3d 801, 

808 (8th Cir. 2014) (‘‘King’s logic is 

equally applicable to consecutive 

sentences’’). 

The Eleventh Circuit anticipated this 

issue in dicta in United States v. 

Cornog, a 1991 decision not cited by 

either King or Williams. See 945 F.2d 

1504 (11th Cir. 1991). The defendant in 

Cornog had two prior sentences, one 

that ordinarily would qualify as a career 

offender predicate and another that was 

not a career offender predicate but was 

the longer of the two. He argued under 

the ‘‘related cases’’ rule (predecessor to 

the ‘‘single sentence’’ rule) that only the 

longer sentence should receive criminal 

history points and therefore the shorter 

sentence should be disqualified from 

serving as a career offender predicate. 

The Eleventh Circuit found this 

unpersuasive: ‘‘It would be illogical . . . 

to ignore a conviction for a violent 

felony just because it happened to be 

coupled with a nonviolent felony 

conviction having a longer sentence.’’ 

See 945 F.2d at 1506 n.3. 

Of the other cases discussing this 

issue, some have been consistent with 

the Sixth Circuit’s approach in 

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

Carr, 2013 WL 4855341 (N.D. Ga. 2013); 

United States v. Augurs, 2014 WL 

3735584 (W.D. Pa., July 28, 2014). 

Others have been consistent with the 

Eighth Circuit’s approach in King. See, 

e.g., United States v. Santiago, 387 F. 

App’x 223 (3d Cir. 2010); United States 

v. McQueen, 2014 WL 3749215 (E.D. 

Wash., July 29, 2014). 

The proposed amendment generally 

follows the Sixth Circuit’s approach in 

Williams. It amends the commentary to 

§ 4A1.2 to provide that, when multiple 

prior sentences are counted as a single 

sentence, the court should treat each of 

the multiple prior sentences as if it 

received criminal history points for 

purposes of determining predicate 

offenses. As a result, it also states that 

a prior sentence included in a single 

sentence may serve as a predicate under 

the career offender guideline (or other 

guidelines that involve predicates) if it 

independently would have received 

criminal history points. 

In addition, the proposed amendment 

provides two issues for comment. The 

first issue for comment is on whether 

the Commission should use a different 

approach to respond to the King/

Williams conflict over the ‘‘single 

sentence’’ rule. The second issue for 

comment is on whether the application 

issues presented by the ‘‘single 

sentence’’ rule are also presented by 

other provisions involved in calculating 

the criminal history score, such as the 

provision in § 4A1.1(c) (adding 1 point 

for certain prior offenses up to a total of 

4 points). 

Proposed Amendment 

The Commentary to § 4A1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 3 by redesignating Note 3 as Note 

3(B), and by inserting at the beginning 

the following: 

‘‘Counting Multiple Prior Sentences 

Separately or as a Single Sentence 

(Subsection (a)(2)).— 

(A) In General.—In some cases, 

multiple prior sentences are counted as 

a single sentence for purposes of 

calculating the criminal history score 

under § 4A1.1(a), (b), and (c). However, 

for purposes of determining predicate 

offenses, each of the multiple prior 

sentences included in the single 

sentence should be treated as if it 

received criminal history points, if it 

independently would have received 

criminal history points. Therefore, an 

individual prior sentence may serve as 

a predicate under the career offender 

guideline (see § 4B1.2(c)) or other 

guidelines with predicate offenses, such 

as § 2K1.3(a) and § 2K2.1(a), if it 

independently would have received 

criminal history points. 

For example, a defendant’s criminal 

history includes one robbery conviction 

and one theft conviction. The sentences 

for these offenses were imposed on the 

same day and are counted as a single 

sentence under § 4A1.2(a)(2). If the 

defendant received a one-year sentence 

of imprisonment for the robbery and a 

two-year sentence of imprisonment for 

the theft, to be served concurrently, a 

total of 3 points is added under 

§ 4A1.1(a). Because this particular 

robbery met the definition of a felony 

crime of violence and independently 

would have received 2 criminal history 

points under § 4A1.1(b), it may serve as 

a predicate under the career offender 

guideline.’’. 

Issues for Comment 

1. The proposed amendment follows 

the Sixth Circuit’s approach in Williams 

regarding the meaning of the ‘‘single 

sentence’’ rule and its implications for 

guidelines that use predicate offenses. 

The Commission seeks comment on 

whether a different approach should be 

used to respond to the King/Williams 

conflict over the ‘‘single sentence’’ rule. 

For example, should the Commission 

follow the Eighth Circuit’s approach in 

King, and amend the commentary to 

§ 4A1.2 to provide that, if prior 

sentences are counted as a single 

sentence, only one of the sentences 

included in the single sentence is 

counted (the sentence with the longest 

term of imprisonment) and any other 

sentences included in the single 

sentence cannot serve as a predicate 

under the career offender guideline (or 

other guidelines that involve 

predicates)? 

2. The Commission seeks comment on 

whether the application issues 

presented by the King/Williams conflict 

over the ‘‘single sentence’’ rule are also 

presented by other provisions involved 

in calculating the criminal history score 

and, if so, whether and how they should 

be addressed. 

In particular, there may be cases in 

which the defendant has more than four 

sentences that each could qualify for a 

criminal history point under § 4A1.1(c), 

which instructs the court to add 1 point 

for each such sentence, ‘‘up to a total of 

4 points.’’ In a case in which the 

defendant has more than four such 

sentences, and one of the sentences 

would ordinarily qualify as a career 

offender predicate, should that sentence 

(A) always qualify as a career offender 

predicate, following the reasoning of 

Williams; (B) never qualify as a career 

offender predicate, following the 

reasoning of King; or (C) qualify as a 

career offender predicate in some 

circumstances but not in others? For 

example, some helpline callers have 

asked whether the sentences under 

§ 4A1.1(c) should be placed in 

chronological sequence, with the first 

four sentences each receiving a point 

(and being eligible to serve as a career 

offender predicate) and any remaining 

sentences not receiving a point (and 

being ineligible to serve as a career 

offender predicate). A similar issue may 

also be presented by the 3-point 

limitation in § 4A1.1(e), which instructs 

courts to add 1 point for certain prior 

sentences ‘‘up to a total of 3 points.’’ 

Are there application issues presented 

by these provisions, or other provisions 

in the guidelines, that are similar to the 

issues presented by the King/Williams 


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2574 Federal Register / Vol. 80, No. 11 / Friday, January 16, 2015 / Notices 

conflict over the ‘‘single sentence’’ rule? 

If so, how, if at all, should the 

Commission address them? 

Finally, if the Commission were to 

address this circuit conflict and/or any 

similar application issues, what 

conforming or clarifying changes, if any, 

should be made to other provisions of 

the guidelines? In particular, are there 

places in the guidelines that refer to the 

‘‘single sentence’’ rule (or, conversely, 

refer to whether prior sentences are 

‘‘counted separately’’) that should be 

revised to clarify how they operate? If 

so, which ones, and how should the 

Commission address them? 

3. Jointly Undertaken Criminal Activity 

Synopsis of Proposed Amendment: 

This proposed amendment is a result of 

the Commission’s effort to simplify the 

operation of the guidelines, including, 

among other matters, the use of relevant 

conduct in offenses involving multiple 

participants. See United States 

Sentencing Commission, ‘‘Notice of 

Final Priorities,’’ 79 FR 49378 (Aug. 20, 

2014). 

This proposed amendment is being 

published to inform the Commission’s 

consideration of these issues. The 

Commission seeks comment on 

revisions that would provide further 

guidance on the operation of the 

‘‘jointly undertaken criminal activity’’ 

provision as well as on possible 

revisions that would change the 

operation of the provision. 

Proposed Additional Guidance 

The proposed amendment would 

revise § 1B1.3 (Relevant Conduct 

(Factors that Determine the Guideline 

Range)) to provide more guidance on the 

use of ‘‘jointly undertaken criminal 

activity’’ in determining relevant 

conduct under the guidelines. See 

§ 1B1.3(a)(1)(B). Specifically, it 

restructures the guideline and its 

commentary to set out more clearly the 

three-step analysis the court applies to 

hold the defendant accountable for acts 

of others in the jointly undertaken 

criminal activity. The three-step test 

requires that the court (1) identify the 

scope of the criminal activity the 

defendant agreed to jointly undertake; 

(2) determine whether the conduct of 

others in the jointly undertaken 

criminal activity was in furtherance of 

that criminal activity; and (3) determine 

whether the conduct of others was 

reasonably foreseeable in connection 

with that criminal activity. 

Possible Policy Changes 

An issue for comment is provided on 

whether the Commission should make 

changes for policy reasons to the 

operation of ‘‘jointly undertaken 

criminal activity.’’ Several options are 

presented for comment. 

Proposed Amendment 

Section 1B1.3(a)(1)(B) is amended by 

striking ‘‘all reasonably foreseeable acts 

and omissions of others in furtherance 

of the jointly undertaken criminal 

activity,’’ and inserting the following: 

‘‘all acts and omissions of others that 

were— 

(i) within the scope of the criminal 

activity that the defendant agreed to 

jointly undertake, 

(ii) in furtherance of the jointly 

undertaken criminal activity, and 

(iii) reasonably foreseeable in 

connection with that criminal activity;’’. 

The Commentary to § 1B1.3 captioned 

‘‘Application Notes’’ is amended by 

striking Note 2 as follows: 

‘‘2. A ‘jointly undertaken criminal 

activity’ is a criminal plan, scheme, 

endeavor, or enterprise undertaken by 

the defendant in concert with others, 

whether or not charged as a conspiracy. 

In the case of a jointly undertaken 

criminal activity, subsection (a)(1)(B) 

provides that a defendant is accountable 

for the conduct (acts and omissions) of 

others that was both: 

(A) in furtherance of the jointly 

undertaken criminal activity; and 

(B) reasonably foreseeable in 

connection with that criminal activity. 

Because a count may be worded 

broadly and include the conduct of 

many participants over a period of time, 

the scope of the criminal activity jointly 

undertaken by the defendant (the 

‘jointly undertaken criminal activity’) is 

not necessarily the same as the scope of 

the entire conspiracy, and hence 

relevant conduct is not necessarily the 

same for every participant. In order to 

determine the defendant’s 

accountability for the conduct of others 

under subsection (a)(1)(B), the court 

must first determine the scope of the 

criminal activity the particular 

defendant agreed to jointly undertake 

(i.e., the scope of the specific conduct 

and objectives embraced by the 

defendant’s agreement). The conduct of 

others that was both in furtherance of, 

and reasonably foreseeable in 

connection with, the criminal activity 

jointly undertaken by the defendant is 

relevant conduct under this provision. 

The conduct of others that was not in 

furtherance of the criminal activity 

jointly undertaken by the defendant, or 

was not reasonably foreseeable in 

connection with that criminal activity, 

is not relevant conduct under this 

provision. 

In determining the scope of the 

criminal activity that the particular 

defendant agreed to jointly undertake 

(i.e., the scope of the specific conduct 

and objectives embraced by the 

defendant’s agreement), the court may 

consider any explicit agreement or 

implicit agreement fairly inferred from 

the conduct of the defendant and others. 

Note that the criminal activity that the 

defendant agreed to jointly undertake, 

and the reasonably foreseeable conduct 

of others in furtherance of that criminal 

activity, are not necessarily identical. 

For example, two defendants agree to 

commit a robbery and, during the course 

of that robbery, the first defendant 

assaults and injures a victim. The 

second defendant is accountable for the 

assault and injury to the victim (even if 

the second defendant had not agreed to 

the assault and had cautioned the first 

defendant to be careful not to hurt 

anyone) because the assaultive conduct 

was in furtherance of the jointly 

undertaken criminal activity (the 

robbery) and was reasonably foreseeable 

in connection with that criminal activity 

(given the nature of the offense). 

With respect to offenses involving 

contraband (including controlled 

substances), the defendant is 

accountable for all quantities of 

contraband with which he was directly 

involved and, in the case of a jointly 

undertaken criminal activity, all 

reasonably foreseeable quantities of 

contraband that were within the scope 

of the criminal activity that he jointly 

undertook. 

The requirement of reasonable 

foreseeability applies only in respect to 

the conduct (i.e., acts and omissions) of 

others under subsection (a)(1)(B). It does 

not apply to conduct that the defendant 

personally undertakes, aids, abets, 

counsels, commands, induces, procures, 

or willfully causes; such conduct is 

addressed under subsection (a)(1)(A). 

A defendant’s relevant conduct does 

not include the conduct of members of 

a conspiracy prior to the defendant 

joining the conspiracy, even if the 

defendant knows of that conduct (e.g., 

in the case of a defendant who joins an 

ongoing drug distribution conspiracy 

knowing that it had been selling two 

kilograms of cocaine per week, the 

cocaine sold prior to the defendant 

joining the conspiracy is not included as 

relevant conduct in determining the 

defendant’s offense level). The 

Commission does not foreclose the 

possibility that there may be some 

unusual set of circumstances in which 

the exclusion of such conduct may not 

adequately reflect the defendant’s 

culpability; in such a case, an upward 

departure may be warranted. 


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Illustrations of Conduct for Which the 

Defendant Is Accountable 

(a) Acts and omissions aided or 

abetted by the defendant 

(1) Defendant A is one of ten persons 

hired by Defendant B to off-load a ship 

containing marihuana. The off-loading 

of the ship is interrupted by law 

enforcement officers and one ton of 

marihuana is seized (the amount on the 

ship as well as the amount off-loaded). 

Defendant A and the other off-loaders 

are arrested and convicted of 

importation of marihuana. Regardless of 

the number of bales he personally 

unloaded, Defendant A is accountable 

for the entire one-ton quantity of 

marihuana. Defendant A aided and 

abetted the off-loading of the entire 

shipment of marihuana by directly 

participating in the off-loading of that 

shipment (i.e., the specific objective of 

the criminal activity he joined was the 

off-loading of the entire shipment). 

Therefore, he is accountable for the 

entire shipment under subsection 

(a)(1)(A) without regard to the issue of 

reasonable foreseeability. This is 

conceptually similar to the case of a 

defendant who transports a suitcase 

knowing that it contains a controlled 

substance and, therefore, is accountable 

for the controlled substance in the 

suitcase regardless of his knowledge or 

lack of knowledge of the actual type or 

amount of that controlled substance. 

In certain cases, a defendant may be 

accountable for particular conduct 

under more than one subsection of this 

guideline. As noted in the preceding 

paragraph, Defendant A is accountable 

for the entire one-ton shipment of 

marihuana under subsection (a)(1)(A). 

Defendant A also is accountable for the 

entire one-ton shipment of marihuana 

on the basis of subsection 

(a)(1)(B)(applying to a jointly 

undertaken criminal activity). 

Defendant A engaged in a jointly 

undertaken criminal activity (the scope 

of which was the importation of the 

shipment of marihuana). A finding that 

the one-ton quantity of marihuana was 

reasonably foreseeable is warranted 

from the nature of the undertaking itself 

(the importation of marihuana by ship 

typically involves very large quantities 

of marihuana). The specific 

circumstances of the case (the defendant 

was one of ten persons off-loading the 

marihuana in bales) also support this 

finding. In an actual case, of course, if 

a defendant’s accountability for 

particular conduct is established under 

one provision of this guideline, it is not 

necessary to review alternative 

provisions under which such 

accountability might be established. 

(b) Acts and omissions aided or 

abetted by the defendant; requirement 

that the conduct of others be in 

furtherance of the jointly undertaken 

criminal activity and reasonably 

foreseeable 

(1) Defendant C is the getaway driver 

in an armed bank robbery in which 

$15,000 is taken and a teller is assaulted 

and injured. Defendant C is accountable 

for the money taken under subsection 

(a)(1)(A) because he aided and abetted 

the act of taking the money (the taking 

of money was the specific objective of 

the offense he joined). Defendant C is 

accountable for the injury to the teller 

under subsection (a)(1)(B) because the 

assault on the teller was in furtherance 

of the jointly undertaken criminal 

activity (the robbery) and was 

reasonably foreseeable in connection 

with that criminal activity (given the 

nature of the offense). 

As noted earlier, a defendant may be 

accountable for particular conduct 

under more than one subsection. In this 

example, Defendant C also is 

accountable for the money taken on the 

basis of subsection (a)(1)(B) because the 

taking of money was in furtherance of 

the jointly undertaken criminal activity 

(the robbery) and was reasonably 

foreseeable (as noted, the taking of 

money was the specific objective of the 

jointly undertaken criminal activity). 

(c) Requirement that the conduct of 

others be in furtherance of the jointly 

undertaken criminal activity and 

reasonably foreseeable; scope of the 

criminal activity 

(1) Defendant D pays Defendant E a 

small amount to forge an endorsement 

on an $800 stolen government check. 

Unknown to Defendant E, Defendant D 

then uses that check as a down payment 

in a scheme to fraudulently obtain 

$15,000 worth of merchandise. 

Defendant E is convicted of forging the 

$800 check and is accountable for the 

forgery of this check under subsection 

(a)(1)(A). Defendant E is not accountable 

for the $15,000 because the fraudulent 

scheme to obtain $15,000 was not in 

furtherance of the criminal activity he 

jointly undertook with Defendant D (i.e., 

the forgery of the $800 check). 

(2) Defendants F and G, working 

together, design and execute a scheme 

to sell fraudulent stocks by telephone. 

Defendant F fraudulently obtains 

$20,000. Defendant G fraudulently 

obtains $35,000. Each is convicted of 

mail fraud. Defendants F and G each are 

accountable for the entire amount 

($55,000). Each defendant is 

accountable for the amount he 

personally obtained under subsection 

(a)(1)(A). Each defendant is accountable 

for the amount obtained by his 

accomplice under subsection (a)(1)(B) 

because the conduct of each was in 

furtherance of the jointly undertaken 

criminal activity and was reasonably 

foreseeable in connection with that 

criminal activity. 

(3) Defendants H and I engaged in an 

ongoing marihuana importation 

conspiracy in which Defendant J was 

hired only to help off-load a single 

shipment. Defendants H, I, and J are 

included in a single count charging 

conspiracy to import marihuana. 

Defendant J is accountable for the entire 

single shipment of marihuana he helped 

import under subsection (a)(1)(A) and 

any acts and omissions in furtherance of 

the importation of that shipment that 

were reasonably foreseeable (see the 

discussion in example (a)(1) above). He 

is not accountable for prior or 

subsequent shipments of marihuana 

imported by Defendants H or I because 

those acts were not in furtherance of his 

jointly undertaken criminal activity (the 

importation of the single shipment of 

marihuana). 

(4) Defendant K is a wholesale 

distributor of child pornography. 

Defendant L is a retail-level dealer who 

purchases child pornography from 

Defendant K and resells it, but 

otherwise operates independently of 

Defendant K. Similarly, Defendant M is 

a retail-level dealer who purchases child 

pornography from Defendant K and 

resells it, but otherwise operates 

independently of Defendant K. 

Defendants L and M are aware of each 

other’s criminal activity but operate 

independently. Defendant N is 

Defendant K’s assistant who recruits 

customers for Defendant K and 

frequently supervises the deliveries to 

Defendant K’s customers. Each 

defendant is convicted of a count 

charging conspiracy to distribute child 

pornography. Defendant K is 

accountable under subsection (a)(1)(A) 

for the entire quantity of child 

pornography sold to Defendants L and 

M. Defendant N also is accountable for 

the entire quantity sold to those 

defendants under subsection (a)(1)(B) 

because the entire quantity was within 

the scope of his jointly undertaken 

criminal activity and reasonably 

foreseeable. Defendant L is accountable 

under subsection (a)(1)(A) only for the 

quantity of child pornography that he 

purchased from Defendant K because 

the scope of his jointly undertaken 

criminal activity is limited to that 

amount. For the same reason, Defendant 

M is accountable under subsection 

(a)(1)(A) only for the quantity of child 

pornography that he purchased from 

Defendant K. 


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(5) Defendant O knows about her 

boyfriend’s ongoing drug-trafficking 

activity, but agrees to participate on 

only one occasion by making a delivery 

for him at his request when he was ill. 

Defendant O is accountable under 

subsection (a)(1)(A) for the drug 

quantity involved on that one occasion. 

Defendant O is not accountable for the 

other drug sales made by her boyfriend 

because those sales were not in 

furtherance of her jointly undertaken 

criminal activity (i.e., the one delivery). 

(6) Defendant P is a street-level drug 

dealer who knows of other street-level 

drug dealers in the same geographic area 

who sell the same type of drug as he 

sells. Defendant P and the other dealers 

share a common source of supply, but 

otherwise operate independently. 

Defendant P is not accountable for the 

quantities of drugs sold by the other 

street-level drug dealers because he is 

not engaged in a jointly undertaken 

criminal activity with them. In contrast, 

Defendant Q, another street-level drug 

dealer, pools his resources and profits 

with four other street-level drug dealers. 

Defendant Q is engaged in a jointly 

undertaken criminal activity and, 

therefore, he is accountable under 

subsection (a)(1)(B) for the quantities of 

drugs sold by the four other dealers 

during the course of his joint 

undertaking with them because those 

sales were in furtherance of the jointly 

undertaken criminal activity and 

reasonably foreseeable in connection 

with that criminal activity. 

(7) Defendant R recruits Defendant S 

to distribute 500 grams of cocaine. 

Defendant S knows that Defendant R is 

the prime figure in a conspiracy 

involved in importing much larger 

quantities of cocaine. As long as 

Defendant S’s agreement and conduct is 

limited to the distribution of the 500 

grams, Defendant S is accountable only 

for that 500 gram amount (under 

subsection (a)(1)(A)), rather than the 

much larger quantity imported by 

Defendant R. 

(8) Defendants T, U, V, and W are 

hired by a supplier to backpack a 

quantity of marihuana across the border 

from Mexico into the United States. 

Defendants T, U, V, and W receive their 

individual shipments from the supplier 

at the same time and coordinate their 

importation efforts by walking across 

the border together for mutual 

assistance and protection. Each 

defendant is accountable for the 

aggregate quantity of marihuana 

transported by the four defendants. The 

four defendants engaged in a jointly 

undertaken criminal activity, the object 

of which was the importation of the four 

backpacks containing marihuana 

(subsection (a)(1)(B)), and aided and 

abetted each other’s actions (subsection 

(a)(1)(A)) in carrying out the jointly 

undertaken criminal activity. In 

contrast, if Defendants T, U, V, and W 

were hired individually, transported 

their individual shipments at different 

times, and otherwise operated 

independently, each defendant would 

be accountable only for the quantity of 

marihuana he personally transported 

(subsection (a)(1)(A)). As this example 

illustrates, in cases involving 

contraband (including controlled 

substances), the scope of the jointly 

undertaken criminal activity (and thus 

the accountability of the defendant for 

the contraband that was the object of 

that jointly undertaken activity) may 

depend upon whether, in the particular 

circumstances, the nature of the offense 

is more appropriately viewed as one 

jointly undertaken criminal activity or 

as a number of separate criminal 

activities.’’; 

by redesignating Notes 3 through 10 

as Notes 5 through 12, respectively, and 

inserting the following new Notes 2, 3 

and 4: 

‘‘2. Accountability Under More Than 

One Provision.—In certain cases, a 

defendant may be accountable for 

particular conduct under more than one 

subsection of this guideline. If a 

defendant’s accountability for particular 

conduct is established under one 

provision of this guideline, it is not 

necessary to review alternative 

provisions under which such 

accountability might be established. 

3. Jointly Undertaken Criminal 

Activity (Subsection (a)(1)(B)).— 

(A) In General.—A ‘jointly undertaken 

criminal activity’ is a criminal plan, 

scheme, endeavor, or enterprise 

undertaken by the defendant in concert 

with others, whether or not charged as 

a conspiracy. 

In the case of a jointly undertaken 

criminal activity, subsection (a)(1)(B) 

provides that a defendant is accountable 

for the conduct (acts and omissions) of 

others that was: 

(i) within the scope of the criminal 

activity that the defendant agreed to 

jointly undertake; 

(ii) in furtherance of the jointly 

undertaken criminal activity; and 

(iii) reasonably foreseeable in 

connection with that criminal activity. 

The conduct of others that was within 

the scope of, in furtherance of, and 

reasonably foreseeable in connection 

with, the criminal activity jointly 

undertaken by the defendant is relevant 

conduct under this provision. The 

conduct of others that was not within 

the scope of the criminal activity that 

the defendant agreed to jointly 

undertake, was not in furtherance of the 

criminal activity jointly undertaken by 

the defendant, or was not reasonably 

foreseeable in connection with that 

criminal activity, is not relevant 

conduct under this provision. 

(B) Scope.—Because a count may be 

worded broadly and include the 

conduct of many participants over a 

period of time, the scope of the criminal 

activity jointly undertaken by the 

defendant (the ‘jointly undertaken 

criminal activity’) is not necessarily the 

same as the scope of the entire 

conspiracy, and hence relevant conduct 

is not necessarily the same for every 

participant. In order to determine the 

defendant’s accountability for the 

conduct of others under subsection 

(a)(1)(B), the court must first determine 

the scope of the criminal activity the 

particular defendant agreed to jointly 

undertake (i.e., the scope of the specific 

conduct and objectives embraced by the 

defendant’s agreement). In doing so, the 

court may consider any explicit 

agreement or implicit agreement fairly 

inferred from the conduct of the 

defendant and others. Accordingly, the 

accountability of the defendant for the 

acts of others is limited by the scope of 

his or her agreement to jointly 

undertake the particular criminal 

activity. Acts of others that were not 

within the scope of the defendant’s 

agreement, even if those acts were 

known or reasonably foreseeable to the 

defendant, are not relevant conduct 

under subsection (a)(1)(B). 

In cases involving contraband 

(including controlled substances), the 

scope of the jointly undertaken criminal 

activity (and thus the accountability of 

the defendant for the contraband that 

was the object of that jointly undertaken 

activity) may depend upon whether, in 

the particular circumstances, the nature 

of the offense is more appropriately 

viewed as one jointly undertaken 

criminal activity or as a number of 

separate criminal activities. 

A defendant’s relevant conduct does 

not include the conduct of members of 

a conspiracy prior to the defendant 

joining the conspiracy, even if the 

defendant knows of that conduct (e.g., 

in the case of a defendant who joins an 

ongoing drug distribution conspiracy 

knowing that it had been selling two 

kilograms of cocaine per week, the 

cocaine sold prior to the defendant 

joining the conspiracy is not included as 

relevant conduct in determining the 

defendant’s offense level). The 

Commission does not foreclose the 

possibility that there may be some 

unusual set of circumstances in which 

the exclusion of such conduct may not 

adequately reflect the defendant’s 


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Federal Register / Vol. 80, No. 11 / Friday, January 16, 2015 / Notices 2577 

culpability; in such a case, an upward 

departure may be warranted. 

(C) In Furtherance.—The court must 

determine if the conduct (acts and 

omissions) of others was in furtherance 

of the criminal activity that the 

defendant agreed to jointly undertake. 

(D) Reasonably Foreseeable.—The 

court must then determine if the 

conduct (acts and omissions) of others 

in furtherance of the jointly undertaken 

criminal activity was reasonably 

foreseeable in connection with the 

criminal activity that the defendant 

agreed to jointly undertake. 

Note that the criminal activity that the 

defendant agreed to jointly undertake, 

and the reasonably foreseeable conduct 

of others in furtherance of that criminal 

activity, are not necessarily identical. 

For example, two defendants agree to 

commit a robbery and, during the course 

of that robbery, the first defendant 

assaults and injures a victim. The 

second defendant is accountable for the 

assault and injury to the victim (even if 

the second defendant had not agreed to 

the assault and had cautioned the first 

defendant to be careful not to hurt 

anyone) because the assaultive conduct 

was within the scope of the criminal 

activity that the defendant agreed to 

jointly undertake (the robbery), was in 

furtherance of that criminal activity (the 

robbery), and was reasonably 

foreseeable in connection with that 

criminal activity (given the nature of the 

offense). 

With respect to offenses involving 

contraband (including controlled 

substances), the defendant is 

accountable under subsection (a)(1)(A) 

for all quantities of contraband with 

which he was directly involved and, in 

the case of a jointly undertaken criminal 

activity under subsection (a)(1)(B), all 

reasonably foreseeable quantities of 

contraband that were within the scope 

of, and in furtherance of, the criminal 

activity that he jointly undertook. 

The requirement of reasonable 

foreseeability applies only in respect to 

the conduct (i.e., acts and omissions) of 

others under subsection (a)(1)(B). It does 

not apply to conduct that the defendant 

personally undertakes, aids, abets, 

counsels, commands, induces, procures, 

or willfully causes; such conduct is 

addressed under subsection (a)(1)(A). 

4. Illustrations of Conduct for Which 

the Defendant is Accountable under 

Subsections (a)(1)(A) and (B).— 

(A) Acts and omissions aided or 

abetted by the defendant.— 

(i) Defendant A is one of ten persons 

hired by Defendant B to off-load a ship 

containing marihuana. The off-loading 

of the ship is interrupted by law 

enforcement officers and one ton of 

marihuana is seized (the amount on the 

ship as well as the amount off-loaded). 

Defendant A and the other off-loaders 

are arrested and convicted of 

importation of marihuana. Regardless of 

the number of bales he personally 

unloaded, Defendant A is accountable 

for the entire one-ton quantity of 

marihuana. Defendant A aided and 

abetted the off-loading of the entire 

shipment of marihuana by directly 

participating in the off-loading of that 

shipment (i.e., the specific objective of 

the criminal activity he joined was the 

off-loading of the entire shipment). 

Therefore, he is accountable for the 

entire shipment under subsection 

(a)(1)(A) without regard to the issue of 

reasonable foreseeability. This is 

conceptually similar to the case of a 

defendant who transports a suitcase 

knowing that it contains a controlled 

substance and, therefore, is accountable 

for the controlled substance in the 

suitcase regardless of his knowledge or 

lack of knowledge of the actual type or 

amount of that controlled substance. 

In certain cases, a defendant may be 

accountable for particular conduct 

under more than one subsection of this 

guideline. As noted in the preceding 

paragraph, Defendant A is accountable 

for the entire one-ton shipment of 

marihuana under subsection (a)(1)(A). 

Defendant A also is accountable for the 

entire one-ton shipment of marihuana 

on the basis of subsection (a)(1)(B) 

(applying to a jointly undertaken 

criminal activity). Defendant A engaged 

in a jointly undertaken criminal activity 

that meets all three criteria of subsection 

(a)(1)(B). First, the criminal activity was 

within the scope of what the defendant 

agreed to jointly undertake (the 

importation of the shipment of 

marihuana). Second, the off-loading of 

the shipment of marihuana was in 

furtherance of the criminal activity, as 

described above. And third, a finding 

that the one-ton quantity of marihuana 

was reasonably foreseeable is warranted 

from the nature of the undertaking itself 

(the importation of marihuana by ship 

typically involves very large quantities 

of marihuana). The specific 

circumstances of the case (the defendant 

was one of ten persons off-loading the 

marihuana in bales) also support this 

finding. In an actual case, of course, if 

a defendant’s accountability for 

particular conduct is established under 

one provision of this guideline, it is not 

necessary to review alternative 

provisions under which such 

accountability might be established. See 

Application Note 2. 

(B) Acts and omissions aided or 

abetted by the defendant; acts and 

omissions in a jointly undertaken 

criminal activity.— 

(i) Defendant C is the getaway driver 

in an armed bank robbery in which 

$15,000 is taken and a teller is assaulted 

and injured. Defendant C is accountable 

for the money taken under subsection 

(a)(1)(A) because he aided and abetted 

the act of taking the money (the taking 

of money was the specific objective of 

the offense he joined). Defendant C is 

accountable for the injury to the teller 

under subsection (a)(1)(B) because the 

assault on the teller was within the 

scope and in furtherance of the jointly 

undertaken criminal activity (the 

robbery), and was reasonably 

foreseeable in connection with that 

criminal activity (given the nature of the 

offense). 

As noted earlier, a defendant may be 

accountable for particular conduct 

under more than one subsection. In this 

example, Defendant C also is 

accountable for the money taken on the 

basis of subsection (a)(1)(B) because the 

taking of money was within the scope 

and in furtherance of the jointly 

undertaken criminal activity (the 

robbery), and was reasonably 

foreseeable (as noted, the taking of 

money was the specific objective of the 

jointly undertaken criminal activity). 

(C) Requirements that the conduct of 

others be within the scope of the jointly 

undertaken criminal activity, in 

furtherance of that criminal activity and 

reasonably foreseeable.— 

(i) Defendant D pays Defendant E a 

small amount to forge an endorsement 

on an $800 stolen government check. 

Unknown to Defendant E, Defendant D 

then uses that check as a down payment 

in a scheme to fraudulently obtain 

$15,000 worth of merchandise. 

Defendant E is convicted of forging the 

$800 check and is accountable for the 

forgery of this check under subsection 

(a)(1)(A). Defendant E is not accountable 

for the $15,000 because the fraudulent 

scheme to obtain $15,000 was not 

within the scope of the criminal activity 

he agreed to jointly undertake with 

Defendant D (i.e., the forgery of the $800 

check). 

(ii) Defendants F and G, working 

together, design and execute a scheme 

to sell fraudulent stocks by telephone. 

Defendant F fraudulently obtains 

$20,000. Defendant G fraudulently 

obtains $35,000. Each is convicted of 

mail fraud. Defendants F and G each are 

accountable for the entire amount 

($55,000). Each defendant is 

accountable for the amount he 

personally obtained under subsection 

(a)(1)(A). Each defendant is accountable 

for the amount obtained by his 

accomplice under subsection (a)(1)(B) 


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because the conduct of each was within 

the scope of the criminal activity they 

agreed to jointly undertake (the scheme 

to sell fraudulent stocks), was in 

furtherance of that criminal activity, and 

was reasonably foreseeable in 

connection with that criminal activity. 

(iii) Defendants H and I engaged in an 

ongoing marihuana importation 

conspiracy in which Defendant J was 

hired only to help off-load a single 

shipment. Defendants H, I, and J are 

included in a single count charging 

conspiracy to import marihuana. 

Defendant J is accountable for the entire 

single shipment of marihuana he helped 

import under subsection (a)(1)(A) and 

any acts and omissions of others related 

to the importation of that shipment on 

the basis of subsection (a)(1)(B) (see the 

discussion in example (A)(i) above). He 

is not accountable for prior or 

subsequent shipments of marihuana 

imported by Defendants H or I because 

those acts were not within the scope of 

his jointly undertaken criminal activity 

(the importation of the single shipment 

of marihuana). 

(iv) Defendant K is a wholesale 

distributor of child pornography. 

Defendant L is a retail-level dealer who 

purchases child pornography from 

Defendant K and resells it, but 

otherwise operates independently of 

Defendant K. Similarly, Defendant M is 

a retail-level dealer who purchases child 

pornography from Defendant K and 

resells it, but otherwise operates 

independently of Defendant K. 

Defendants L and M are aware of each 

other’s criminal activity but operate 

independently. Defendant N is 

Defendant K’s assistant who recruits 

customers for Defendant K and 

frequently supervises the deliveries to 

Defendant K’s customers. Each 

defendant is convicted of a count 

charging conspiracy to distribute child 

pornography. Defendant K is 

accountable under subsection (a)(1)(A) 

for the entire quantity of child 

pornography sold to Defendants L and 

M. Defendant N also is accountable for 

the entire quantity sold to those 

defendants under subsection (a)(1)(B) 

because the entire quantity was within 

the scope of his jointly undertaken 

criminal activity (to distribute child 

pornography with Defendant K), in 

furtherance of that criminal activity, and 

reasonably foreseeable. Defendant L is 

accountable under subsection (a)(1)(A) 

only for the quantity of child 

pornography that he purchased from 

Defendant K because he is not engaged 

in a jointly undertaken criminal activity 

with the other defendants. For the same 

reason, Defendant M is accountable 

under subsection (a)(1)(A) only for the 

quantity of child pornography that he 

purchased from Defendant K. 

(v) Defendant O knows about her 

boyfriend’s ongoing drug-trafficking 

activity, but agrees to participate on 

only one occasion by making a delivery 

for him at his request when he was ill. 

Defendant O is accountable under 

subsection (a)(1)(A) for the drug 

quantity involved on that one occasion. 

Defendant O is not accountable for the 

other drug sales made by her boyfriend 

because those sales were not within the 

scope of her jointly undertaken criminal 

activity (i.e., the one delivery). 

(vi) Defendant P is a street-level drug 

dealer who knows of other street-level 

drug dealers in the same geographic area 

who sell the same type of drug as he 

sells. Defendant P and the other dealers 

share a common source of supply, but 

otherwise operate independently. 

Defendant P is not accountable for the 

quantities of drugs sold by the other 

street-level drug dealers because he is 

not engaged in a jointly undertaken 

criminal activity with them. In contrast, 

Defendant Q, another street-level drug 

dealer, pools his resources and profits 

with four other street-level drug dealers. 

Defendant Q is engaged in a jointly 

undertaken criminal activity and, 

therefore, he is accountable under 

subsection (a)(1)(B) for the quantities of 

drugs sold by the four other dealers 

during the course of his joint 

undertaking with them because those 

sales were within the scope of the 

jointly undertaken criminal activity, in 

furtherance of that criminal activity, and 

reasonably foreseeable in connection 

with that criminal activity. 

(vii) Defendant R recruits Defendant S 

to distribute 500 grams of cocaine. 

Defendant S knows that Defendant R is 

the prime figure in a conspiracy 

involved in importing much larger 

quantities of cocaine. As long as 

Defendant S’s agreement and conduct is 

limited to the distribution of the 500 

grams, Defendant S is accountable only 

for that 500 gram amount (under 

subsection (a)(1)(A)), rather than the 

much larger quantity imported by 

Defendant R. Defendant S is not 

accountable under subsection (a)(1)(B) 

for the other quantities imported by 

Defendant R because those quantities 

were not within the scope of his jointly 

undertaken criminal activity (i.e., the 

500 grams). 

(viii) Defendants T, U, V, and W are 

hired by a supplier to backpack a 

quantity of marihuana across the border 

from Mexico into the United States. 

Defendants T, U, V, and W receive their 

individual shipments from the supplier 

at the same time and coordinate their 

importation efforts by walking across 

the border together for mutual 

assistance and protection. Each 

defendant is accountable for the 

aggregate quantity of marihuana 

transported by the four defendants. The 

four defendants engaged in a jointly 

undertaken criminal activity, the object 

of which was the importation of the four 

backpacks containing marihuana 

(subsection (a)(1)(B)), and aided and 

abetted each other’s actions (subsection 

(a)(1)(A)) in carrying out the jointly 

undertaken criminal activity (which 

under subsection (a)(1)(B) were also in 

furtherance of, and reasonably 

foreseeable in connection with, the 

criminal activity). In contrast, if 

Defendants T, U, V, and W were hired 

individually, transported their 

individual shipments at different times, 

and otherwise operated independently, 

each defendant would be accountable 

only for the quantity of marihuana he 

personally transported (subsection 

(a)(1)(A)). As this example illustrates, 

the scope of the jointly undertaken 

criminal activity may depend upon 

whether, in the particular 

circumstances, the nature of the offense 

is more appropriately viewed as one 

jointly undertaken criminal activity or 

as a number of separate criminal 

activities. See Application Note 3(A).’’. 

Issues for Comment 

1. Additional Guidance. The 

Commission seeks comment on whether 

additional or different guidance should 

be provided on the ‘‘jointly undertaken 

criminal activity’’ provision in 

subsection (a)(1)(B). In particular, 

should the Commission provide further 

guidance on how to determine (A) the 

scope of the jointly undertaken criminal 

activity, (B) whether the conduct of 

others was in furtherance of the 

criminal activity, and (C) whether the 

conduct of others was reasonably 

foreseeable in connection with the 

criminal activity? Does the proposed 

amendment provide adequate guidance 

on the operation of ‘‘jointly undertaken 

criminal activity’’? 

Should the Commission provide 

additional or different examples to 

better explain the operation of ‘‘jointly 

undertaken criminal activity’’? If so, 

what examples should be provided? Are 

there examples that are no longer good 

illustrations of present-day criminal 

cases? If so, should those examples be 

deleted or revised, or should they be 

replaced with more appropriate 

illustrations of present-day criminal 

cases? 

2. Possible Policy Changes. The 

Commission seeks comment on whether 

changes should be made for policy 

reasons to the operation of ‘‘jointly 


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Federal Register / Vol. 80, No. 11 / Friday, January 16, 2015 / Notices 2579 

undertaken criminal activity,’’ such as 

to provide greater limitations on the 

extent to which a defendant is held 

accountable at sentencing for the 

conduct of co-participants that the 

defendant did not aid, abet, counsel, 

command, induce, procure, or willfully 

cause. (Such conduct is covered by 

§ 1B1.3(a)(1)(A).) In particular, but 

without limitation, the Commission 

seeks comment on two options for 

possible changes that could be made to 

the operation of ‘‘jointly undertaken 

criminal activity’’, as follows. 

(A) Option A: Requiring a Higher State 

of Mind Than ‘‘Reasonable 

Foreseeability’’ 

This option would revise ‘‘jointly 

undertaken criminal activity’’ by 

changing the ‘‘reasonable foreseeability’’ 

part of the analysis. The requirement 

that the other participant’s conduct be 

reasonably foreseeable has been 

described as a ‘‘negligence’’ standard, 

that is, the defendant should have 

known or should have foreseen the 

conduct. 

The Commission seeks specific 

comment on whether ‘‘jointly 

undertaken criminal activity’’ should 

require a higher state of mind, such as 

recklessness or deliberate indifference; 

knowledge; or intent. For example, if a 

co-participant possessed a weapon, 

should the defendant be held 

accountable for the weapon only if he 

was deliberately indifferent to whether 

a weapon would be possessed; or only 

if he knew the weapon would be 

possessed; or only if he intended that 

the weapon be possessed? 

(B) Option B: Requiring a Conviction for 

Conspiracy or At Least a ‘‘Pinkerton 

Conviction’’ 

This option would hold a defendant 

accountable for a ‘‘jointly undertaken 

criminal activity’’ only when the 

defendant (1) was convicted of a 

conspiracy charge related to a coconspirator’s conduct in furtherance of 

the jointly undertaken criminal activity; 

or (2) was convicted by a jury that was 

specifically instructed on Pinkerton 

liability regarding a substantive offense; 

or (3) admitted facts sufficient to 

constitute Pinkerton liability. 

The Commission seeks specific 

comment on what the practical impact 

of such a change would be on charging 

and sentencing practices. 

Does the current provision on ‘‘jointly 

undertaken criminal activity’’ 

appropriately further the purposes of 

sentencing? If not, what changes, if any, 

should the Commission make to ‘‘jointly 

undertaken criminal activity’’ to more 

appropriately further the purposes of 

sentencing? Do any of the options 

described above more appropriately 

further the purposes of sentencing? Are 

there other possible changes, whether or 

not identified in the options described 

above, that should be made to ‘‘jointly 

undertaken criminal activity’’ to more 

appropriately further the purposes of 

sentencing? 

4. Inflationary Adjustments 

Synopsis of Proposed Amendment: 

This proposed amendment is a result of 

the Commission’s work in examining 

the overall structure of the guidelines 

post-Booker. See United States 

Sentencing Commission, ‘‘Notice of 

Final Priorities,’’ 79 FR 49378 (Aug. 20, 

2014). As part of that work, the 

Commission is considering whether to 

adjust monetary tables in the guidelines 

for inflation. Congress has generally 

mandated that agencies in the executive 

branch must, every four years, adjust the 

civil monetary penalties they impose to 

account for inflation. See Section 4 of 

the Federal Civil Penalties Inflationary 

Adjustment Act of 1990 (28 U.S.C. 2461 

note). The work of the Commission does 

not involve civil monetary penalties. It 

involves establishing appropriate 

criminal sentences for categories of 

offenses and offenders, including 

appropriate amounts for criminal fines. 

See, e.g., 28 U.S.C. 994(b)(1), (a)(1)(B). 

While some of the monetary values in 

the Chapter Two offense guidelines 

have been revised since they were 

originally established in 1987 (e.g., the 

loss table in § 2B1.1 was substantially 

amended in 2001), they have never been 

revised specifically to account for 

inflation. Other monetary values in the 

Chapter Two offense guidelines, as well 

as the monetary values in the fine tables 

for individual defendants and for 

organizational defendants, have never 

been revised. 

The proposed amendment, including 

the issues for comment set forth below, 

are intended to inform the 

Commission’s work across all the 

relevant guidelines and its examination 

of rulemaking practices generally. The 

proposed amendment illustrates one 

possible approach for implementing an 

inflationary adjustment during this 

amendment cycle. Specifically, it sets 

forth options for amending the monetary 

tables in the guidelines to adjust for 

inflation, i.e., the tables in §§ 2B1.1 

(Theft, Property, Destruction, and 

Fraud), 2B2.1 (Burglary), 2B3.1 

(Robbery), 2R1.1 (Bid-Rigging, PriceFixing or Market-Allocation Agreements 

Among Competitors), 2T4.1 (Tax Table), 

5E1.2 (Fines for Individual Defendants), 

and 8C2.4 (Base Fine). The options are 

based on changes to the Bureau of Labor 

Statistics’ Consumer Price Index and on 

different time frames (taking into 

consideration the year each monetary 

table was last amended). For each of the 

seven tables, two options are presented. 

They are as follows. 

Option 1 adjusts the amounts in the 

monetary tables using a specific 

multiplier derived from the Consumer 

Price Index, and then rounds the 

amounts using the rounding 

methodology applied when adjusting 

civil monetary penalties for inflation 

under section 5(a) of the Federal Civil 

Penalties Inflation Adjustment Act of 

1990 (28 U.S.C. 2461 note). In effect, 

this rounds— 

amounts greater than $200,000 to the 

nearest multiple of $25,000; 

amounts greater than $100,000 to the 

nearest multiple of $10,000; 

amounts greater than $10,000 to the 

nearest multiple of $5,000; 

amounts greater than $1,000 to the 

nearest multiple of $1,000; 

amounts greater than $100 to the 

nearest multiple of $100; and 

amounts less than or equal to $100 to 

the nearest multiple of $10. 

Option 2 adjusts the amounts in the 

monetary tables using a specific 

multiplier derived from the Consumer 

Price Index, but then rounds the 

amounts using a different set of 

rounding rules extrapolated from the 

methodology used in Option 1. This 

‘‘extrapolated’’ methodology provides 

rules that address a wider range of 

values than Option 1, such as by 

providing rounder numbers for amounts 

significantly greater than $200,000. 

Specifically, this methodology rounds— 

amounts greater than $100,000,000 to 

the nearest multiple of $50,000,000; 

amounts greater than $10,000,000 to 

the nearest multiple of $5,000,000; 

amounts greater than $1,000,000 to 

the nearest multiple of $500,000; 

amounts greater than $100,000 to the 

nearest multiple of $50,000; 

amounts greater than $10,000 to the 

nearest multiple of $5,000; 

amounts greater than $1,000 to the 

nearest multiple of $500; and 

amounts of $1,000 or less to the 

nearest multiple of $50. 

For the loss table in § 2B1.1(b)(1) and 

the tax table in § 2B4.1, the options 

would adjust for inflation since 2001, 

the year both tables were last amended. 

According to the Consumer Price Index, 

$1.00 in 2001 has the same buying 

power as $1.34 in 2014. For the loss 

tables in §§ 2B2.1 (Burglary) and 2B3.1 

(Robbery), and the fine table for 

individual defendants at § 5E1.2(c)(3), 

the options would adjust for inflation 

since 1989, the year these tables were 

last amended. The adjustments would 


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take into account that $1.00 in 1989 has 

the same buying power as $1.91 in 2014, 

according to the Consumer Price Index. 

The options for the antitrust table in 

§ 2R1.1(b)(2) would adjust for inflation 

since 2005, the year the table was last 

amended. According to the Consumer 

Price Index, $1.00 in 2005 has the same 

buying power as $1.22 in 2014. And, 

finally, for the fine table for 

organizational defendants at § 8C2.4(d), 

the options would adjust for inflation 

since 1991, as the table has not been 

substantially amended since it was 

promulgated. The adjustments would 

take into account that, according to the 

Consumer Price Index, $1.00 in 1991 

has the same buying power as $1.74 in 

2014. 

Each of the tables shows the initial 

multiplier used to make the adjustments 

for inflation taken from the Consumer 

Price Index. In addition, the proposed 

amendment includes conforming 

changes to other Chapter Two 

guidelines that refer to the monetary 

tables. 

Finally, the proposed amendment sets 

forth a series of issues for comment 

related to additional changes to the 

monetary tables that could be 

considered instead of, or in conjunction 

with, the proposed amendment. 

Proposed Amendment 

Section 2B1.1(b)(1) is amended— 

[Option 1: 

By striking $5,000 each place such 

term appears and inserting $7,000; 

by striking $10,000 and inserting 

$15,000; 

by striking $30,000 and inserting 

$40,000; 

by striking $70,000 and inserting 

$95,000; 

by striking $120,000 and inserting 

$160,000; 

by striking $200,000 and inserting 

$275,000; 

by striking $400,000 and inserting 

$525,000; 

by striking $1,000,000 and inserting 

$1,350,000; 

by striking $2,500,000 and inserting 

$3,350,000; 

by striking $7,000,000 and inserting 

$9,375,000; 

by striking $20,000,000 and inserting 

$26,800,000; 

by striking $50,000,000 and inserting 

$67,000,000; 

by striking $100,000,000 and inserting 

$134,000,000; 

by striking $200,000,000 and inserting 

$268,000,000; and 

by striking $400,000,000 and inserting 

$536,000,000.] 

[Option 2: 

By striking $5,000 each place such 

term appears and inserting $6,500; 

by striking $10,000 and inserting 

$15,000; 

by striking $30,000 and inserting 

$40,000; 

by striking $70,000 and inserting 

$95,000; 

by striking $120,000 and inserting 

$150,000; 

by striking $200,000 and inserting 

$250,000; 

by striking $400,000 and inserting 

$550,000; 

by striking $1,000,000 and inserting 

$1,500,000; 

by striking $2,500,000 and inserting 

$3,500,000; 

by striking $7,000,000 and inserting 

$9,500,000; 

by striking $20,000,000 and inserting 

$30,000,000; 

by striking $50,000,000 and inserting 

$70,000,000; 

by striking $100,000,000 and inserting 

$150,000,000; 

by striking $200,000,000 and inserting 

$300,000,000; and 

by striking $400,000,000 and inserting 

$550,000,000.] 

Section 2B1.4(b)(1) is amended— 

[Option 1: 

By striking $5,000 and inserting 

$7,000.] 

[Option 2: 

By striking $5,000 and inserting 

$6,500.] 

Section 2B1.5(b)(1) is amended— 

[Option 1: 

By striking $2,000 and inserting 

$3,000; and 

by striking $5,000 both places such 

term appears and inserting $7,000.] 

[Option 2: 

By striking $2,000 and inserting 

$2,500; and 

by striking $5,000 both places such 

term appears and inserting $6,500.] 

Section 2B2.1(b)(2) is amended— 

[Option 1: 

By striking $2,500 each place such 

term appears and inserting $5,000; 

by striking $10,000 and inserting 

$20,000; 

by striking $50,000 and inserting 

$95,000; 

by striking $250,000 and inserting 

$475,000; 

by striking $800,000 and inserting 

$1,525,000; 

by striking $1,500,000 and inserting 

$2,875,000; 

by striking $2,500,000 and inserting 

$4,775,000; 

by striking $5,000,000 and inserting 

$9,550,000.] 

[Option 2: 

By striking $2,500 each place such 

term appears and inserting $5,000; 

by striking $10,000 and inserting 

$20,000; 

by striking $50,000 and inserting 

$95,000; 

by striking $250,000 and inserting 

$500,000; 

by striking $800,000 and inserting 

$1,500,000; 

by striking $1,500,000 and inserting 

$3,000,000; 

by striking $2,500,000 and inserting 

$5,000,000; 

by striking $5,000,000 and inserting 

$9,500,000.] 

Section 2B2.3(b)(3) is amended— 

[Option 1: 

By striking $2,000 and inserting 

$3,000; and 

by striking $5,000 both places such 

term appears and inserting $7,000.] 

[Option 2: 

By striking $2,000 and inserting 

$2,500; and 

by striking $5,000 both places such 

term appears and inserting $6,500.] 

Section 2B3.1(b)(7) is amended— 

[Option 1: 

By striking $10,000 each place such 

term appears and inserting $20,000; 

by striking $50,000 and inserting 

$95,000; 

by striking $250,000 and inserting 

$475,000; 

by striking $800,000 and inserting 

$1,525,000; 

by striking $1,500,000 and inserting 

$2,875,000; 

by striking $2,500,000 and inserting 

$4,775,000; 

by striking $5,000,000 and inserting 

$9,550,000.] 

[Option 2: 

By striking $10,000 each place such 

term appears and inserting $20,000; 

by striking $50,000 and inserting 

$95,000; 

by striking $250,000 and inserting 

$500,000; 

by striking $800,000 and inserting 

$1,500,000; 

by striking $1,500,000 and inserting 

$3,000,000; 

by striking $2,500,000 and inserting 

$5,000,000; 

by striking $5,000,000 and inserting 

$9,500,000.] 

Section 2B3.2(b)(2) is amended by 

striking $10,000 and inserting $20,000. 

Sections 2B3.3(b)(1), 2B4.1(b)(1), 

2B5.1(b)(1), 2B5.3(b)(1), and 2B6.1(b)(1) 

are each amended— 

[Option 1: 

By striking $2,000 and inserting 

$3,000; and 

by striking $5,000 both places such 

term appears and inserting $7,000.] 

[Option 2: 

By striking $2,000 and inserting 

$2,500; and 

by striking $5,000 both places such 

term appears and inserting $6,500.] 


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Sections 2C1.1(b)(2), 2C1.2(b)(2), and 

2C1.8(b)(1) are each amended— 

[Option 1: 

By striking $5,000 and inserting 

$7,000.] 

[Option 2: 

By striking $5,000 and inserting 

$6,500.] 

Sections 2E5.1(b)(2) and 2Q2.1(b)(3) 

are each amended— 

[Option 1: 

By striking $2,000 and inserting 

$3,000; and 

by striking $5,000 both places such 

term appears and inserting $7,000.] 

[Option 2: 

By striking $2,000 and inserting 

$2,500; and 

by striking $5,000 both places such 

term appears and inserting $6,500.] 

Section 2R1.1(b)(2) is amended— 

[Option 1: 

By striking $1,000,000 each place 

such term appears and inserting 

$1,225,000; 

by striking $10,000,000 and inserting 

$12,200,000; 

by striking $40,000,000 and inserting 

$48,800,000; 

by striking $100,000,000 and inserting 

$122,000,000; 

by striking $250,000,000 and inserting 

$305,000,000; 

by striking $500,000,000 and inserting 

$610,000,000; 

by striking $1,000,000,000 and 

inserting $1,220,000,000; 

by striking $1,500,000,000 and 

inserting $1,830,000,000.] 

[Option 2: 

By striking $1,000,000 each place 

such term appears and inserting 

$1,000,000; 

by striking $10,000,000 and inserting 

$10,000,000; 

by striking $40,000,000 and inserting 

$50,000,000; 

by striking $100,000,000 and inserting 

$100,000,000; 

by striking $250,000,000 and inserting 

$300,000,000; 

by striking $500,000,000 and inserting 

$600,000,000; 

by striking $1,000,000,000 and 

inserting $1,200,000,000; 

by striking $1,500,000,000 and 

inserting $1,850,000,000.] 

Section 2T3.1(a) is amended— 

[Option 1: 

By striking $1,000 both places such 

term appears and inserting $2,000; 

by striking $100 both places such 

term appears and inserting $200.] 

[Option 2: 

By striking $1,000 both places such 

term appears and inserting $1,500; 

by striking $100 both places such 

term appears and inserting $200.] 

Section 2T4.1 is amended— 

[Option 1: 

By striking $2,000 both places such 

term appears and inserting $3,000; 

by striking $5,000 and inserting 

$7,000; 

by striking $12,500 and inserting 

$15,000; 

by striking $30,000 and inserting 

$40,000; 

by striking $80,000 and inserting 

$110,000; 

by striking $200,000 and inserting 

$275,000; 

by striking $400,000 and inserting 

$525,000; 

by striking $1,000,000 and inserting 

$1,350,000; 

by striking $2,500,000 and inserting 

$3,350,000; 

by striking $7,000,000 and inserting 

$9,375,000; 

by striking $20,000,000 and inserting 

$26,800,000; 

by striking $50,000,000 and inserting 

$67,000,000; 

by striking $100,000,000 and inserting 

$134,000,000; 

by striking $200,000,000 and inserting 

$268,000,000; and 

by striking $400,000,000 and inserting 

$536,000,000.] 

[Option 2: 

By striking $2,000 both places such 

term appears and inserting $2,500; 

by striking $5,000 and inserting 

$6,500; 

by striking $12,500 and inserting 

$15,000; 

by striking $30,000 and inserting 

$40,000; 

by striking $80,000 and inserting 

$100,000; 

by striking $200,000 and inserting 

$250,000; 

by striking $400,000 and inserting 

$550,000; 

by striking $1,000,000 and inserting 

$1,500,000; 

by striking $2,500,000 and inserting 

$3,500,000; 

by striking $7,000,000 and inserting 

$9,500,000; 

by striking $20,000,000 and inserting 

$25,000,000; 

by striking $50,000,000 and inserting 

$65,000,000; 

by striking $100,000,000 and inserting 

$150,000,000; 

by striking $200,000,000 and inserting 

$250,000,000; and 

by striking $400,000,000 and inserting 

$550,000,000.] 

Section 5E1.2(c)(3) is amended— 

[Option 1: 

In Column A— 

by striking $100 and inserting $200; 

by striking $250 and inserting $500; 

by striking $500 and inserting $1,000; 

by striking $1,000 and inserting 

$2,000; 

by striking $2,000 and inserting 

$4,000; 

by striking $3,000 and inserting 

$6,000; 

by striking $4,000 and inserting 

$8,000; 

by striking $5,000 and inserting 

$10,000; 

by striking $6,000 and inserting 

$10,000; 

by striking $7,500 and inserting 

$15,000; 

by striking $10,000 and inserting 

$20,000; 

by striking $12,500 and inserting 

$25,000; 

by striking $15,000 and inserting 

$30,000; 

by striking $17,500 and inserting 

$35,000; 

by striking $20,000 and inserting 

$40,000; 

by striking $25,000 and inserting 

$50,000; 

and in Column B— 

by striking $5,000 each place such 

term appears and inserting $10,000; 

by striking $10,000 and inserting 

$20,000; 

by striking $20,000 and inserting 

$40,000; 

by striking $30,000 and inserting 

$55,000; 

by striking $40,000 and inserting 

$75,000; 

by striking $50,000 and inserting 

$95,000; 

by striking $60,000 and inserting 

$110,000; 

by striking $75,000 and inserting 

$140,000; 

by striking $100,000 and inserting 

$190,000; 

by striking $125,000 and inserting 

$250,000; 

by striking $150,000 and inserting 

$275,000; 

by striking $175,000 and inserting 

$325,000; 

by striking $200,000 and inserting 

$375,000; and 

by striking $250,000 and inserting 

$475,000.] 

[Option 2: 

In Column A— 

by striking $100 and inserting $200; 

by striking $250 and inserting $500; 

by striking $500 and inserting $1,000; 

by striking $1,000 and inserting 

$2,000; 

by striking $2,000 and inserting 

$4,000; 

by striking $3,000 and inserting 

$5,500; 

by striking $4,000 and inserting 

$7,500; 

by striking $5,000 and inserting 

$10,000; 

by striking $6,000 and inserting 

$10,000; 


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by striking $7,500 and inserting 

$15,000; 

by striking $10,000 and inserting 

$20,000; 

by striking $12,500 and inserting 

$25,000; 

by striking $15,000 and inserting 

$30,000; 

by striking $17,500 and inserting 

$35,000; 

by striking $20,000 and inserting 

$40,000; 

by striking $25,000 and inserting 

$50,000; 

and in Column B— 

by striking $5,000 each place such 

term appears and inserting $9,500; 

by striking $10,000 and inserting 

$20,000; 

by striking $20,000 and inserting 

$40,000; 

by striking $30,000 and inserting 

$55,000; 

by striking $40,000 and inserting 

$75,000; 

by striking $50,000 and inserting 

$95,000; 

by striking $60,000 and inserting 

$100,000; 

by striking $75,000 and inserting 

$150,000; 

by striking $100,000 and inserting 

$200,000; 

by striking $125,000 and inserting 

$250,000; 

by striking $150,000 and inserting 

$300,000; 

by striking $175,000 and inserting 

$350,000; 

by striking $200,000 and inserting 

$400,000; and 

by striking $250,000 and inserting 

$500,000.] 

Section 8C2.4(d) is amended— 

[Option 1: 

By striking $5,000 and inserting 

$9,000; 

by striking $7,500 and inserting 

$15,000; 

by striking $10,000 and inserting 

$15,000; 

by striking $15,000 and inserting 

$25,000; 

by striking $20,000 and inserting 

$35,000; 

by striking $30,000 and inserting 

$50,000; 

by striking $40,000 and inserting 

$70,000; 

by striking $60,000 and inserting 

$100,000; 

by striking $85,000 and inserting 

$150,000; 

by striking $125,000 and inserting 

$225,000; 

by striking $175,000 and inserting 

$300,000; 

by striking $250,000 and inserting 

$425,000; 

by striking $350,000 and inserting 

$600,000; 

by striking $500,000 and inserting 

$875,000; 

by striking $650,000 and inserting 

$1,125,000; 

by striking $910,000 and inserting 

$1,575,000; 

by striking $1,200,000 and inserting 

$2,100,000; 

by striking $1,600,000 and inserting 

$2,775,000; 

by striking $2,100,000 and inserting 

$3,650,000; 

by striking $2,800,000 and inserting 

$4,875,000; 

by striking $3,700,000 and inserting 

$6,450,000; 

by striking $4,800,000 and inserting 

$8,350,000; 

by striking $6,300,000 and inserting 

$10,950,000; 

by striking $8,100,000 and inserting 

$14,100,000; 

by striking $10,500,000 and inserting 

$18,275,000; 

by striking $13,500,000 and inserting 

$23,500,000; 

by striking $17,500,000 and inserting 

$30,450,000; 

by striking $22,000,000 and inserting 

$38,275,000; 

by striking $28,500,000 and inserting 

$49,600,000; 

by striking $36,000,000 and inserting 

$62,650,000; 

by striking $45,500,000 and inserting 

$79,175,000; 

by striking $57,500,000 and inserting 

$100,050,000; 

by striking $72,500,000 and inserting 

$126,150,000.] 

[Option 2: 

by striking $5,000 and inserting 

$8,500; 

by striking $7,500 and inserting 

$15,000; 

by striking $10,000 and inserting 

$15,000; 

by striking $15,000 and inserting 

$25,000; 

by striking $20,000 and inserting 

$35,000; 

by striking $30,000 and inserting 

$50,000; 

by striking $40,000 and inserting 

$70,000; 

by striking $60,000 and inserting 

$100,000; 

by striking $85,000 and inserting 

$150,000; 

by striking $125,000 and inserting 

$200,000; 

by striking $175,000 and inserting 

$300,000; 

by striking $250,000 and inserting 

$450,000; 

by striking $350,000 and inserting 

$600,000; 

by striking $500,000 and inserting 

$850,000; 

by striking $650,000 and inserting 

$1,000,000; 

by striking $910,000 and inserting 

$1,500,000; 

by striking $1,200,000 and inserting 

$2,000,000; 

by striking $1,600,000 and inserting 

$3,000,000; 

by striking $2,100,000 and inserting 

$3,500,000; 

by striking $2,800,000 and inserting 

$5,000,000; 

by striking $3,700,000 and inserting 

$6,500,000; 

by striking $4,800,000 and inserting 

$8,500,000; 

by striking $6,300,000 and inserting 

$10,000,000; 

by striking $8,100,000 and inserting 

$15,000,000; 

by striking $10,500,000 and inserting 

$20,000,000; 

by striking $13,500,000 and inserting 

$25,000,000; 

by striking $17,500,000 and inserting 

$30,000,000; 

by striking $22,000,000 and inserting 

$40,000,000; 

by striking $28,500,000 and inserting 

$50,000,000; 

by striking $36,000,000 and inserting 

$65,000,000; 

by striking $45,500,000 and inserting 

$80,000,000; 

by striking $57,500,000 and inserting 

$100,000,000; 

by striking $72,500,000 and inserting 

$150,000,000.] 

Issues for Comment 

1. The Commission seeks comment on 

whether the monetary tables in the 

guidelines should be adjusted for 

inflation. The monetary tables set forth 

in the proposed amendment relate to a 

variety of different offenses and apply to 

a number of different criminal statutes. 

Given the difference between the types 

of offenses, should all monetary tables 

be adjusted for inflation in the same 

way? Does the type of offenses or 

statutory provisions related to any of the 

monetary tables suggest that it should 

not be adjusted for inflation? 

2. As set forth in the proposed 

amendment, should an adjustment for 

inflation be made during the 2014–2015 

amendment cycle? Should the 

Commission make it a practice to make, 

or consider making, an inflationary 

adjustment at periodic intervals, such as 

every four or ten years, or at particular 

inflationary measures, such as when 

$1.00 in the year the table was last 

adjusted has the same buying power as 

$1.25 or $1.33 or $1.50 in the current 

year? Should the Commission 


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incorporate directly into the guidelines 

a mechanism for automatically adjusting 

for inflation? 

3. In each of the options presented 

above, the amounts associated with the 

offense level increases in the monetary 

tables would be adjusted for inflation. 

The Commission seeks comment on 

whether the changes, if any, to account 

for inflation should be made using a 

different methodology than the options 

presented above. Should the changes be 

based on a different indicator than the 

changes to the Consumer Price Index? 

Should the changes be based on 

different time frames than the ones 

provided? Should the changes be 

rounded using a different method than 

presented in the options above? 

4. The Commission seeks comment on 

whether, in addition to or instead of any 

of the options above, the Commission 

should consider any other changes to 

the monetary tables, such as to promote 

proportionality or to reduce complexity. 

5. There are 18 other Chapter Two 

guidelines that refer to the loss table at 

§ 2B1.1(b)(1) (see §§ 2B1.4, 2B1.5, 2B2.3, 

2B3.3, 2B4.1, 2B5.1, 2B5.3, 2B6.1, 

2C1.1, 2C1.2, 2C1.8, 2E5.1, 2G2.2, 

2G3.1, 2G3.2, 2Q2.1, 2S1.1, 2S1.3); 1 

other Chapter Two guideline that refers 

to the loss table at § 2B3.1(b)(7) (see 

§ 2B3.2); and 8 other Chapter Two 

guidelines that refer to the tax table at 

§ 2T4.1 (see §§ 2E4.1, 2T1.1, 2T1.4, 

2T1.6, 2T1.7, 2T1.9, 2T2.1, 2T3.1). If the 

Commission were to adjust the 

monetary tables in the guidelines, 

should the revised tables apply to these 

other guidelines as well? In the 

alternative, should the Commission 

provide separate, alternative monetary 

tables specifically for these other 

guidelines? If so, which ones? 

6. Are there other places in the 

guidelines that refer to monetary values 

that should be adjusted, if the 

Commission were to adjust the tables in 

the guidelines? 

5. Mitigating Role 

Synopsis of Proposed Amendment: 

This proposed amendment is a result of 

the Commission’s study of the operation 

of § 3B1.2 (Mitigating Role) and related 

provisions in the Guidelines Manual. 

See United States Sentencing 

Commission, ‘‘Notice of Final 

Priorities,’’ 79 FR 49378 (Aug. 20, 2014). 

First, there are differences among the 

circuits about what determining the 

‘‘average participant’’ requires. The 

Seventh and Ninth Circuits have 

concluded that the ‘‘average 

participant’’ means only those persons 

who actually participated in the 

criminal activity at issue in the 

defendant’s case, so that the defendant’s 

relative culpability is determined only 

by reference to his or her coparticipants. See, e.g., United States v. 

Benitez, 34 F.3d 1489, 1498 (9th Cir. 

1994) (explaining that ‘‘the relevant 

comparison . . . is to the conduct of coparticipants in the case at hand.’’); 

United States v. Cantrell, 433 F.3d 1269, 

1283 (9th Cir. 2006) (‘‘While a 

comparison to the conduct of a 

hypothetical average participant may be 

appropriate in determining whether a 

downward adjustment is warranted at 

all, the relevant comparison in 

determining which of the § 3B1.2 

adjustments to grant a given defendant 

is to the conduct of co-participants in 

the case at hand.’’) (internal quotations 

omitted); United States v. DePriest, 6 

F.3d 1201, 1214 (7th Cir. 1993) (‘‘The 

controlling standard for an offense level 

reduction under [§ 3B1.2] is whether the 

defendant was substantially less 

culpable than the conspiracy’s other 

participants.’’). The First and Second 

Circuits have concluded that the 

‘‘average participant’’ also includes 

typical offenders who commit similar 

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

Santos, 357 F.3d 136, 142 (1st Cir. 2004) 

(‘‘[A] defendant must prove that he is 

both less culpable than his cohorts in 

the particular criminal endeavor and 

less culpable than the majority of those 

within the universe of persons 

participating in similar crimes.’’); 

United States v. Rahman, 189 F.3d 88, 

159 (2d Cir. 1999) (‘‘A reduction will 

not be available simply because the 

defendant played a lesser role than his 

co-conspirators; to be eligible for a 

reduction, the defendant’s conduct must 

be ‘minor’ or ‘minimal’ as compared to 

the average participant in such a 

crime.’’). Under this latter approach, 

courts will ordinarily consider the 

defendant’s culpability relative both to 

his co-participants and to the typical 

offender. The proposed amendment 

would generally adopt the approach of 

the Seventh and Ninth Circuits. 

Second, the Commentary to § 3B1.2 

provides that certain individuals who 

perform limited functions in criminal 

activity are not precluded from 

consideration for a mitigating role 

adjustment. The proposed amendment 

would revise this language to state that 

such an individual may receive a 

mitigating role adjustment. 

Third, the proposed amendment 

provides a non-exhaustive list of factors 

for the court to consider in determining 

whether to apply a mitigating role 

adjustment and, if so, the amount of the 

adjustment. 

An issue for comment is also 

included. 

Proposed Amendment 

The Commentary to § 3B1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 3(A) by inserting after ‘‘that makes 

him substantially less culpable than the 

average participant’’ the following: ‘‘in 

the criminal activity’’, by striking 

‘‘concerted’’ and inserting ‘‘the’’, by 

striking ‘‘is not precluded from 

consideration for’’ each place such term 

appears and inserting ‘‘may receive’’, by 

striking ‘‘role’’ both places such term 

appears and inserting ‘‘participation’’, 

and by striking ‘‘personal gain from a 

fraud offense and who had limited 

knowledge’’ and inserting ‘‘personal 

gain from a fraud offense or who had 

limited knowledge’’; 

in Note 3(C) by inserting at the end 

the following new paragraph: 

‘‘In determining whether to apply 

subsection (a) or (b), or an intermediate 

adjustment, the court should consider 

the following non-exhaustive list of 

factors: 

(i) the degree to which the defendant 

understood the scope and structure of 

the criminal activity; 

(ii) the degree to which the defendant 

participated in planning or organizing 

the criminal activity; and 

(iii) the degree to which the defendant 

stood to benefit from the criminal 

activity.’’; 

in Note 4 by striking ‘‘concerted’’ and 

inserting ‘‘the criminal’’; 

and in Note 5 by inserting after ‘‘than 

most participants’’ the following: ‘‘in 

the criminal activity’’. 

Issue for Comment 

1. The Commission seeks comment on 

the application of the mitigating role 

adjustment. Are there application issues 

relating to this adjustment that the 

Commission should address and, if so, 

how should the Commission address 

them? 

The proposed amendment would 

provide additional guidance on 

applying the mitigating role adjustment. 

Is the additional guidance in the 

proposed amendment appropriate? 

What additional or different guidance 

should the Commission provide on 

applying mitigating role adjustments? 

6. Flavored Drugs 

Issue for Comment 

1. The Commission seeks comment on 

offenses in which controlled substances 

are colored, packaged, or flavored in 

ways that appear to be designed to 

attract use by children. How prevalent 

are these offenses, and do the guidelines 

adequately address these offenses? 

The Commission has received 

comment, for example, that drugs are 


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being flavored with additives to make 

them taste like candy, with flavors such 

as strawberry, lemon, coconut, 

cinnamon and chocolate, and are being 

marketed in smaller amounts, making 

them cheaper and more accessible to 

children. The Commission has also 

received comment about incidents in 

which candy and soft drinks were laced 

with marijuana and packaged to look 

like well-known, brand-name products. 

Under the Controlled Substances Act, 

a person who distributes a controlled 

substance to a person under 21 years of 

age is generally subject to twice the 

statutory maximum term of 

imprisonment that would otherwise 

apply, and a statutory minimum term of 

imprisonment of one year, unless a 

higher statutory minimum applies. See 

21 U.S.C. 859(a). If such a person 

already has a prior conviction under 

section 859, he or she is generally 

subject to three times the statutory 

maximum term of imprisonment that 

would otherwise apply. See 21 U.S.C. 

859(b). Notably, these provisions apply 

only to the distribution of the controlled 

substance, not to the manufacture of the 

controlled substance. 

The Commission seeks comment on 

whether the guidelines provide 

appropriate penalties for offenders who 

manufacture or create drugs that are 

packaged or modified by coloring or 

flavoring with the intent of appealing to 

children, or who combine drugs with 

candy or soft drinks with the intent of 

appealing to children. If not, how 

should the Commission revise the 

guidelines to provide appropriate 

penalties in such cases? Should the 

Commission provide new departure 

provisions, enhancements, adjustments, 

or minimum offense levels to account 

for such offenses? If so, what provision 

or provisions should the Commission 

provide, and what penalty increase 

should be provided? 

If the Commission were to provide 

such a provision, what specific offense 

conduct, harm, or other factor should be 

the basis for applying the provision? For 

example, should the provision apply to 

any type of manufacturing conduct as 

long as the defendant had the specific 

intent to appeal to children? Or should 

the provision apply without regard to 

specific intent, as long as a specific type 

of offense conduct was involved, such 

as (1) combining with soft drinks or 

candy, (2) marketing or packaging to 

look like soft drinks or candy, or (3) 

flavoring or coloring? 

Should the provision take the form of 

a specific instruction to apply a 

vulnerable victim adjustment under 

subsection (b) of § 3A1.1 (Hate Crime 

Motivation or Vulnerable Victim)? For 

example, should the Commission 

provide a specific instruction at 

§ 2D1.1(d)(2) stating that, if a specific 

objective of the offense was to 

manufacture a controlled substance 

product for marketing to, or use by, 

minors, an adjustment under § 3A1.1(b) 

would apply? 

7. Hydrocodone 

Synopsis of Proposed Amendment: 

This proposed amendment addresses 

the new statutory penalty structure for 

offenses involving hydrocodone and 

hydrocodone combination products in 

light of two recent administrative 

actions. As a result of those actions, all 

hydrocodone products are now 

schedule II controlled substances rather 

than schedule III controlled substances. 

A. Until Recently, the Scheduling of 

Hydrocodone Has Depended on 

Whether It Is a Single-Entity Product 

(Schedule II) or a Combination Product 

(Schedule III) 

Products featuring hydrocodone in 

combination with one or more 

unscheduled active pharmaceutical 

ingredients have been schedule III 

controlled substances, until recently. 

Such ‘‘hydrodocone combination’’ 

products are the most frequently 

prescribed opioids in the United States, 

with nearly 137 million prescriptions 

for such products dispensed in 2013, 

according to the Drug Enforcement 

Administration. See Drug Enforcement 

Administration, ‘‘Schedules of 

Controlled Substances: Rescheduling of 

Hydrocodone Combination Products 

From Schedule III to Schedule II,’’ 79 

FR 49661 (August 22, 2014). There are 

several hundred hydrocodone 

combination products on the market. 

The hydrocodone combination products 

that were most frequently prescribed in 

2013 were combinations of 

hydrocodone and acetaminophen, with 

brand names such as Vicodin and 

Lortab as well as generics. Id. 

In contrast, single-entity, or 

‘‘standalone,’’ hydrocodone products 

have been, and continue to be, schedule 

II controlled substances. However, there 

have been no single-entity hydrocodone 

products on the United States market, 

until recently. 

B. All Hydrocodone Products Are Now 

Schedule II Controlled Substances 

Two recent administrative actions 

have had the effect of moving all 

offenses involving hydrocodone 

(whether in combination or standing 

alone) to schedule II. 

First, in October 2013 the Food and 

Drug Administration approved a singleentity hydrocodone product (brand 

name Zohydro), the first such product to 

be approved for the United States 

market. According to the Food and Drug 

Administration, Zohydro is ‘‘an opioid 

analgesic medication for the 

management of moderate to severe 

chronic pain when a continuous, 

around-the-clock opioid analgesic is 

needed for an extended period of time.’’ 

It is marketed in extended-release 

capsules and formulated in dose 

strengths up to 50 milligrams. See Food 

and Drug Administration, ‘‘Anesthetic 

and Analgesic Drug Products Advisory 

Committee: Notice of Meeting,’’ 77 FR 

67380 (November 9, 2012). As 

mentioned above, such a product is a 

schedule II controlled substance. Other 

single-entity hydrocodone products are 

also being considered for the U.S. 

market. 

Second, the Drug Enforcement 

Administration published a final rule 

that moved all hydrocodone 

combination products from schedule III 

to schedule II. See Drug Enforcement 

Administration, ‘‘Schedules of 

Controlled Substances: Rescheduling of 

Hydrocodone Combination Products 

From Schedule III to Schedule II,’’ 79 

FR 49661 (August 22, 2014). This action 

imposes stronger regulatory controls 

and administrative and civil sanctions 

on persons who handle hydrocodone 

combination products. As discussed in 

more detail below, it also changes the 

statutory and guideline penalty 

structure for offenses involving 

hydrocodone combination products. 

C. The Statutory and Guideline Penalty 

Structures 

By statute, an offense involving a 

schedule III controlled substance has a 

statutory maximum term of 

imprisonment of 10 years, unless certain 

aggravating factors are present (such as 

a prior conviction for a felony drug 

offense or the use of the substance 

resulting in death or bodily injury). See 

21 U.S.C. 841(b)(1)(E). An offense 

involving a schedule II controlled 

substance, in contrast, has a statutory 

maximum term of imprisonment of 20 

years, unless such an aggravating factor 

is present. See 21 U.S.C. 841(b)(1)(C). 

Under the guidelines, an offense 

involving ‘‘schedule III hydrocodone’’ 

generally has a base offense level 

determined by the number of pills, 

tablets, or capsules, without regard to 

the weight of the pills, tablets, or 

capsules or the quantity of hydrocodone 

in them. The base offense levels for 

schedule III hydrocodone range from a 

minimum of level 6 to a maximum of 

level 30, and quantity is determined by 

a marijuana equivalency under which 1 


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‘‘unit’’ (i.e., 1 pill, tablet, or capsule) 

equals 1 gram of marijuana. 

An offense involving schedule II 

hydrocodone generally has a base 

offense level determined by the weight 

of the entire pill, tablet, or capsule 

involved. The base offense levels for 

schedule II hydrocodone range from a 

minimum of level 12 to a maximum of 

level 38, and quantity is determined by 

a marijuana equivalency under which 1 

gram of the pills, tablets, or capsules 

equals 500 grams of marijuana. 

D. The Proposed Amendment Deletes 

the Reference to ‘‘Schedule III 

Hydrocodone’’ and Proposes a 

Marijuana Equivalency Using 

‘‘Hydrocodone (Actual)’’ 

The proposed amendment responds to 

the administrative actions in two ways. 

First, the proposed amendment deletes 

references in the guidelines to 

‘‘Schedule III Hydrocodone.’’ In light of 

the rescheduling of hydrocodone 

combination products from schedule III 

to schedule II, the references to 

schedule III hydrocodone are obsolete. 

Second, the proposed amendment 

provides a single marijuana equivalency 

for hydrocodone offenses, whether 

single-entity or in combination, that is 

based on the actual weight of the 

hydrocodone involved rather than the 

number of pills involved or the weight 

of an entire pill. Specifically, a 

marijuana equivalency under which 1 

gram of ‘‘hydrocodone (actual)’’ equates 

to [4,467]/[6,700] grams of marijuana is 

proposed. 

The use of an ‘‘actual’’ approach for 

hydrocodone in the proposed 

amendment is informed by the 

Commission’s decision in 2003 to use 

an ‘‘actual’’ approach for oxycodone. 

See USSG App. C, amend. 657 (effective 

November 1, 2003). Oxycodone is an 

opium alkaloid found in certain 

prescription pain relievers such as 

Percocet and OxyContin, generally sold 

in pill form. The Commission 

determined that a penalty structure 

based on the weight of the entire pill 

resulted in proportionality issues 

because (1) products come in different 

pill sizes and formulations and (2) 

products of the same size and 

formulation come in different dosages, 

containing different amounts of 

oxycodone. The Commission remedied 

these proportionality issues by adopting 

a penalty structure for oxycodone 

offenses using the weight of the actual 

oxycodone instead of the weight of the 

entire pill. See USSG App. C, amend. 

657 (Reason for Amendment). 

Such proportionality issues may also 

arise with offenses involving 

hydrocodone products, to the extent 

those products come in different pill 

sizes, formulations, or dosages. The 

proposed use of an ‘‘actual’’ approach 

for hydrocodone would address these 

proportionality issues by providing 

sentences for hydrocodone offenses 

using the weight of the actual 

hydrocodone instead of the number of 

pills or the weight of an entire pill. 

The rescheduling of hydrocodone 

combination products also raises 

severity issues, and the proposed 

amendment addresses the severity 

issues by bracketing two possible 

severity levels, one that assigns 

hydrocodone (actual) the same 

marijuana equivalency as oxycodone 

(actual), and one that assigns a lower 

marijuana equivalency. The higher 

severity level (6,700 gm) is based on a 

1:1 ratio of hydrocodone to oxycodone 

in marijuana equivalency, which would 

reflect a view that equivalent amounts 

of hydrocodone and oxycodone cause 

the same pharmacological effects on the 

body. The lower severity level (4,467 

gm) is based on a 3:2 ratio of 

hydrocodone to oxycodone in marijuana 

equivalency, which would reflect a view 

that it takes more hydrocodone than 

oxycodone to achieve the same 

pharmacological effects on the body. 

Compare ‘‘Dosing Data for Clinically 

Employed Opioid Analgesics’’ in 

Goodman and Gilman’s The 

Pharmacological Basis of Therapeutics, 

12th edition (2011), p. 496 

(recommending equivalent amounts of 

hydrocodone and oxycodone) with 

University of Chicago Department of 

Palliative Care, Opioid Analgesic Chart, 

available at http://

champ.bsd.uchicago.edu/documents/

Pallpaincard2009update.pdf 

(recommending 15 milligrams of 

hydrocodone as equivalent to 10 

milligrams of oxycodone). 

A multi-part issue for comment is also 

provided, seeking comment on 

hydrocodone offenses and offenders and 

how the proportionality and severity 

issues raised by the administrative 

actions should be addressed, either by 

the approach taken in the proposed 

amendment or some other manner. 

Proposed Amendment 

Sections 2D1.1(c) is amended in 

subdivisions (5), (6), (7), (8) and (9) by 

striking the lines referenced to Schedule 

III Hydrocodone; 

and in subdivisions (10), (11), (12), 

(13), (14), (15), (16) and (17) by striking 

the lines referenced to Schedule III 

Hydrocodone, and in the lines 

referenced to Schedule III substances 

(except Ketamine or Hydrocodone) by 

striking ‘‘or Hydrocodone’’. 

The annotation to § 2D1.1(c) 

captioned ‘‘Notes to Drug Quantity 

Table’’ is amended in Note (B) in the 

last paragraph by striking ‘‘The term 

‘Oxycodone (actual)’ refers’’ and 

inserting ‘‘The terms ‘Hydrocodone 

(actual)’ and ‘Oxycodone (actual)’ 

refer’’. 

The Commentary to § 2D1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 8(D), under the heading relating to 

Schedule I or II Opiates, by striking the 

line referenced to Hydrocodone/

Dihydrocodeinone and inserting the 

following: 

‘‘1 gm of Hydrocodone (actual) = 

[4467]/[6700] gm of marihuana’’; 

in the heading relating to Schedule III 

Substances (except ketamine and 

hydrocodone) by striking ‘‘and 

hydrocodone’’ both places such term 

appears; 

and in the heading relating to 

Schedule III Hydrocodone by striking 

the heading and subsequent paragraphs 

as follows: 

‘‘Schedule III Hydrocodone * * * 

1 unit of Schedule III hydrocodone = 1 

gm of marihuana 

* * * Provided, that the combined 

equivalent weight of all Schedule III 

substances (except ketamine), Schedule 

IV substances (except flunitrazepam), 

and Schedule V substances shall not 

exceed 2,999.99 kilograms of 

marihuana.’’; 

and in Note 27(C) by inserting after 

‘‘methamphetamine,’’ the following 

‘‘hydrocodone,’’. 

Issue for Comment 

1. The Commission seeks comment on 

how, if at all, the guidelines for 

hydrocodone trafficking should be 

changed, such as to address the 

administrative actions described in the 

synopsis above, and the severity and 

proportionality issues that may result 

from those actions. 

A. Proportionality 

The proposed amendment would 

provide a marijuana equivalency for 

hydrocodone based on the actual weight 

of the controlled substance rather than 

on the number of pills or the weight of 

an entire pill. As discussed in the 

synopsis above, the Commission has 

used such an ‘‘actual’’ approach for 

offenses involving oxycodone. Is the use 

of an ‘‘actual’’ approach for 

hydrocodone offenses appropriate to 

address the proportionality issues that 

arise from differing pill sizes, 

formulations, and dosages? 

In the alternative, should the 

Commission continue to provide a 

marijuana equivalency for hydrocodone 

based on the entire weight of the pill? 


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If so, how, if at all, should the 

Commission address the proportionality 

issues that arise to the extent there are 

differing pill sizes, formulations, or 

dosages? For example, should the 

guidelines continue to distinguish 

between single-entity hydrocodone 

products and hydrocodone combination 

products? What distinctions, if any, 

should be made? 

B. Severity 

Whether the Commission continues to 

provide a marijuana equivalency for 

hydrocodone based on the entire weight 

of the pill or provides a marijuana 

equivalency using an ‘‘actual’’ approach 

(as proposed by the proposed 

amendment), the Commission seeks 

comment on what marijuana 

equivalency or equivalencies should be 

provided for hydrocodone trafficking, in 

light of the first-ever approval of a 

hydrocodone single-entity product and 

the rescheduling of hydrocodone 

combination products from schedule III 

to schedule II. 

Under the current guidelines, a 

schedule III hydrocodone product has a 

marijuana equivalency based on the 

number of pills, at 1 unit = 1 gram 

marijuana, and a schedule II 

hydrocodone product has a marijuana 

equivalency based on the weight of the 

entire pill, at 1 gram = 500 grams 

marijuana. In light of the rescheduling, 

the entry for schedule III hydrocodone 

products is obsolete, and all 

hydrocodone combination products are 

schedule II controlled substances, with 

a marijuana equivalency based on the 

weight of the entire pill, at 1 gram = 500 

grams marijuana. 

If the Commission were to continue to 

use the entire weight of the pill for all 

hydrocodone offenses, is this severity 

level (1 gram = 500 grams marijuana) 

appropriate? Should the Commission 

establish a different equivalency for all 

hydrocodone offenses, or several 

equivalencies, such as one equivalency 

for single-entity products and another 

for combination products? If so, what 

equivalency or equivalencies should the 

Commission provide? 

In the alternative, if the Commission 

were to use the ‘‘actual’’ approach in the 

proposed amendment, what marijuana 

equivalency should be used? Should 1 

gram of hydrocodone (actual) equate to 

[4,467] grams of marijuana, or to [6,700] 

grams of marijuana? Or should the 

Commission establish a different 

equivalency than either of these? If so, 

what equivalency should the 

Commission provide? 

C. General Comment on Hydrocodone 

Offenses and Offenders 

In determining the marijuana 

equivalencies for controlled substances, 

the Commission has considered, among 

other things, the chemical structure, the 

pharmacological effects, the potential 

for addiction and abuse, the patterns of 

abuse and harms associated with abuse, 

and the patterns of trafficking and 

harms associated with trafficking. 

The Commission invites general 

comment on hydrocodone offenses and 

hydrocodone offenders and how these 

offenses and offenders compare with 

other drug offenses and drug offenders. 

For example, how is hydrocodone 

manufactured, distributed, and 

marketed? How is it diverted? Once 

diverted, how is it distributed, 

possessed, and used? What are the 

characteristics of the offenders involved 

in these various activities? What harms 

are posed by these activities? 

Is the chemical structure of 

hydrocodone substantially similar to the 

chemical structure of a any other 

controlled substance referenced in 

§ 2D1.1? If so, to what substance? 

Is the effect on the central nervous 

system of hydrocodone substantially 

similar to the effect of any other 

controlled substance referenced in 

§ 2D1.1? If so, to what substance? Is the 

quantity of hydrocodone needed to 

produce that effect lesser or greater than 

the quantity needed of the other such 

substance? If so, what is the difference 

in relative potency? 

The Commission specifically invites 

comment on whether hydrocodone is 

similar to oxycodone. If so, should the 

Commission provide a marijuana 

equivalency for hydrocodone on this 

basis, e.g., by specifying a marijuana 

equivalency for hydrocodone (actual) 

equal to the marijuana equivalency for 

oxycodone (actual), which is 1 gram 

oxycodone (actual) = 6700 grams of 

marijuana? 

8. Economic Crime 

Synopsis of Proposed Amendment: 

This proposed amendment is a result of 

the Commission’s multi-year study of 

§ 2B1.1 (Theft, Property, Destruction, 

and Fraud), and related guidelines, 

including examination of the loss table, 

the definition of loss, role in the offense, 

and offenses involving fraud on the 

market. See United States Sentencing 

Commission, ‘‘Notice of Final 

Priorities,’’ 79 FR 49378 (Aug. 20, 2014). 

The proposed amendment contains 

four parts. The Commission is 

considering whether to promulgate any 

one or more of these parts, as they are 

not necessarily mutually exclusive. 

They are as follows: 

Part A revises the definition of 

‘‘intended loss’’ at § 2B1.1, comment. 

(n.3(A)(ii)). Two options are presented, 

one of which would reflect certain 

principles discussed in the Tenth 

Circuit’s decision in United States v. 

Manatau, 647 F.3d 1048 (10th Cir. 

2011). Issues for comment on intended 

loss are also provided. 

Part B addresses the impact of the 

victims table in § 2B1.1(b)(2). It 

proposes to establish a new 

enhancement for cases where one or 

more victims suffered substantial 

[financial] hardship and to reduce the 

levels of enhancement that apply based 

solely on the number of victims. Two 

options are provided. It includes issues 

for comment on the victims table and 

other provisions relating to victims. 

Part C revises the specific offense 

characteristic for sophisticated means in 

subsection (b)(10)(C) in several ways. 

An issue for comment is also included. 

Part D addresses offenses involving 

fraud on the market and related 

offenses. Issues for comment are also 

included. 

(A) Intended Loss 

Synopsis of Proposed Amendment: 

This part of the proposed amendment 

revises the definition of ‘‘intended loss’’ 

at § 2B1.1, comment. (n.3(A)(ii)). While 

the current definition for intended loss 

was added as part of the Economic 

Crime Package in 2001, see USSG App. 

C, amend. 617 (eff. Nov. 1, 2001), the 

concept of intended loss has been 

included in the fraud and theft 

guidelines since the inception of the 

guidelines, see USSG § 2F1.1, comment. 

(n.7) (1987). Note 3(A)(ii) states that 

‘‘intended loss’’— 

(I) means the pecuniary harm that was 

intended to result from the offense; and 

(II) includes intended pecuniary harm 

that would have been impossible or 

unlikely to occur (e.g., as in a 

government sting operation, or an 

insurance fraud in which the claim 

exceeded the insured value). 

The Commission has received 

comment expressing concern regarding 

the operation of intended loss, 

including suggestions that the 

Commission consider certain revisions 

to better reflect a defendant’s 

culpability. In addition to these 

comments, the Commission has 

observed some disagreement in the case 

law regarding whether intended loss 

requires a subjective or objective 

inquiry. In United States v. Manatau, 

647 F.3d 1048 (10th Cir. 2011), the 

Tenth Circuit held that a subjective 

inquiry is required, which is similar to 

holdings in the Second, Third and Fifth 

Circuits. See United States v. Confredo, 


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528 F.3d 143, 152 (2d Cir. 2008) 

(remanding for consideration of whether 

defendant had ‘‘proven a subjective 

intent to cause a loss of less than the 

aggregate amount’’ of fraudulent loans); 

United States v. Kopp, 951 F.2d 521 (3d 

Cir. 1991) (holding that intended loss is 

the loss the defendant subjectively 

intended to inflict on the victim); 

United States v. Diallo, 710 F.3d 147, 

151 (3d Cir. 2013) (‘‘To make this 

determination, we look to the 

defendant’s subjective expectation, not 

to the risk of loss to which he may have 

exposed his victims.’’); United States v. 

Sanders, 343 F.3d 511, 527 (5th Cir. 

2003) (‘‘our case law requires the 

government prove by a preponderance 

of the evidence that the defendant had 

the subjective intent to cause the loss 

that is used to calculate his offense 

level’’). On the other hand, the First and 

the Seventh Circuits have issued 

decisions that support a more objective 

inquiry. See United States v. Innarelli, 

524 F.3d 286, 291 (1st Cir. 2008) (‘‘we 

focus our loss inquiry for purposes of 

determining a defendant’s offense level 

on the objectively reasonable 

expectation of a person in his position 

at the time he perpetrated the fraud, not 

on his subjective intentions or hopes’’); 

United States v. Lane, 323 F.3d 568, 590 

(7th Cir. 2003) (‘‘The determination of 

intended loss under the Sentencing 

Guidelines therefore focuses on the 

conduct of the defendant and the 

objective financial risk to victims 

caused by that conduct’’). 

The Commission is publishing this 

proposed amendment and issues for 

comment to inform the Commission’s 

consideration of these issues. Two 

options are bracketed for comment. 

They are as follows: 

Option 1 would state that intended 

loss means the pecuniary harm ‘‘that the 

defendant purposely sought to inflict’’ 

and that the defendant’s purpose may be 

inferred from all available facts. This 

would reflect certain principles 

discussed in the Tenth Circuit’s 

decision in United States v. Manatau, 

647 F.3d 1048 (10th Cir. 2011). In 

Manatau, the defendant was convicted 

of bank fraud and aggravated identity 

theft. The district court determined that 

the intended loss should be determined 

by adding up the credit limits of the 

stolen convenience checks, because a 

loss up to those credit limits was ‘‘both 

possible and potentially contemplated 

by the defendant’s scheme.’’ 647 F.3d at 

1049–1050. On appeal, the Tenth 

Circuit reversed, holding that ‘‘intended 

loss’’ contemplates ‘‘a loss the 

defendant purposely sought to inflict,’’ 

and that the appropriate standard was 

one of ‘‘subjective intent to cause the 

loss.’’ 647 F.3d at 1055. Such an intent, 

the court held, may be based on making 

‘‘reasonable inferences about the 

defendant’s mental state from the 

available facts.’’ 647 F.3d at 1056. 

Option 2 is similar to Option 1, but 

would also encompass the pecuniary 

harm that any other participant 

purposely sought to inflict, if the 

defendant was accountable under 

§ 1B1.3(a)(1)(A) for the other 

participant. 

Issues for comment on intended loss 

are also provided. 

Proposed Amendment 

[Option 1: 

The Commentary to § 2B1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 3(A)(ii) by striking ‘‘(I) means the 

pecuniary harm that was intended to 

result from the offense; and’’ and 

inserting ‘‘(I) means the pecuniary harm 

that the defendant purposely sought to 

inflict; and’’; and by adding at the end 

the following new paragraph: 

‘‘The defendant’s purpose may be 

inferred from all available facts, 

including the defendant’s actions, the 

actions and intentions of other 

participants, and the natural and 

probable consequences of those 

actions.’’.] 

[Option 2: 

The Commentary to § 2B1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 3(A)(ii) by striking ‘‘(I) means the 

pecuniary harm that was intended to 

result from the offense; and’’ and 

inserting ‘‘(I) means (a) the pecuniary 

harm that the defendant purposely 

sought to inflict and (b) the pecuniary 

harm that any other participant 

purposely sought to inflict, if the 

defendant was accountable under 

§ 1B1.3(a)(1)(A) for the other 

participant; and’’; and by adding at the 

end the following new paragraph: 

‘‘An individual’s purpose may be 

inferred from all available facts, 

including the individual’s actions, the 

actions and intentions of other 

participants, and the natural and 

probable consequences of those 

actions.’’.] 

Issues for Comment 

1. The Commission seeks comment on 

whether the definition of ‘‘intended 

loss’’ should be revised or refined, in 

the manner contemplated by the 

proposed amendment or in some other 

manner, to clarify or simplify guideline 

operation or for other reasons consistent 

with the purposes of sentencing. What 

changes, if any, should the Commission 

make to the definition of ‘‘intended 

loss’’? 

How should the definition of 

‘‘intended loss’’ interact with other parts 

of the guidelines? For example: 

(A) Should intended loss be limited to 

the amount the defendant personally 

intended, or should it also include 

amounts intended by other participants, 

such as participants (i) that the 

defendant aided and abetted, and/or (ii) 

that were in a jointly undertaken 

criminal activity with the defendant? 

(B) How should intended loss interact 

with the commentary relating to 

partially completed offenses in § 2B1.1, 

Application Note 18 (providing that, in 

the case of a partially completed 

offense, the offense level is to be 

determined in accordance with the 

provisions of § 2X1.1 (Attempt, 

Solicitation, or Conspiracy))? 

2. Section 2B1.1 provides that for the 

determination of loss under subsection 

(b)(1), the court shall use the greater of 

‘‘actual loss’’ or ‘‘intended loss.’’ Should 

intended loss be limited in some 

manner? 

(B) Victims Table 

Synopsis of Proposed Amendment: 

This part of the proposed amendment 

addresses issues relating to the impact 

of the victims table in § 2B1.1(b)(2) as 

well as other provisions relating to 

victims in § 2B1.1. 

The victims table provides a tiered 

enhancement based on the number of 

victims. It provides an enhancement of 

2 levels if the offense involved 10 or 

more victims or was committed through 

mass-marketing; 4 levels if the offense 

involved 50 or more victims; and 6 

levels if the offense involved 250 or 

more victims. 

First, the proposed amendment 

provides a new enhancement at 

subsection (b)(3)(A) that applies if the 

offense resulted in substantial 

[financial] hardship to one or more 

victims. Two options are presented. 

Under Option 1, the enhancement 

applies if there are one or more such 

victims and the amount of the 

enhancement is bracketed at [2][3][4] 

levels. Option 2 provides a tiered 

enhancement based on the number of 

such victims. Specifically, if there is at 

least [one] such victim, the 

enhancement is [1][2] levels; if there are 

at least [five] such victims, the 

enhancement is [2][4] levels; and if 

there are at least [25] such victims, the 

enhancement is [3][6] levels. The 

proposed amendment also provides 

factors for the court to consider in 

determining whether substantial 

[financial] hardship resulted. Several of 

those factors, bracketed in the proposed 

amendment, are non-monetary and are 

derived from the upward departure 


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provision at Application Note 20(A)(vi). 

The proposed amendment also brackets 

the possibility of deleting Application 

Note 20(A)(vi). 

Both options also bracket the 

possibility of a ‘‘cap’’ that limits the 

cumulative impact of subsection (b)(2) 

and the new (b)(3)(A) to [6] levels. 

Second, the proposed amendment 

revises the impact of the victims table 

by reducing the enhancements in the 

table from 2, 4, and 6 levels to 1, 2, and 

3 levels, respectively. 

Third, the proposed amendment 

deletes prong (iii) of subsection 

(b)(16)(B), relating to an offense that 

substantially endangered the solvency 

or financial security of 100 or more 

victims. 

Finally, the proposed amendment 

includes issues for comment on other 

possible changes to the operation and 

impact of the victims table and other 

provisions relating to victims in § 2B1.1. 

Proposed Amendment 

Section 2B1.1 is amended in 

subsection (b)(2) by striking ‘‘2 levels’’, 

‘‘4 levels’’, and ‘‘6 levels’’ and inserting 

‘‘1 level’’, ‘‘2 levels’’, and ‘‘3 levels’’, 

respectively; 

by redesignating subsections (b)(3) 

through (b)(16) as (b)(4) through (b)(17), 

respectively (and conforming references 

to those subsections accordingly); 

by inserting after subsection (b)(2) the 

following new subsection (b)(3): 

[Option 1: 

‘‘(3)(A) If the offense resulted in 

substantial [financial] hardship to one 

or more victims, increase by [2][3][4] 

levels. 

[(B) The cumulative adjustments from 

application of both subsections (b)(2) 

and (b)(3)(A) shall not exceed [6] 

levels.’’]]; 

[Option 2: 

‘‘(3)(A) (Apply the greatest) If the 

offense resulted in substantial 

[financial] hardship to— 

(i) [one] or more victims, increase by 

[1][2] levels; 

(ii) [five] or more victims, increase by 

[2][4] levels; or 

(iii) [25] or more victims, increase by 

[3][6] levels. 

[(B) The cumulative adjustments from 

application of both subsections (b)(2) 

and (b)(3)(A) shall not exceed [6] 

levels.’’]]; and 

in subsection (b)(17) (as so 

redesignated) by inserting ‘‘or’’ at the 

end of subdivision (B)(i); by striking ‘‘; 

or (iii) substantially endangered the 

solvency or financial security of 100 or 

more victims’’; and by striking 

‘‘(b)(16)(B)’’ and inserting ‘‘(b)(17)(B)’’. 

The Commentary to § 2B1.1 captioned 

‘‘Application Notes’’ is amended by 

redesignating Notes 5 through 20 as 

Notes 6 through 21, respectively; by 

inserting after Note 4 the following new 

Note 5: 

‘‘5. Enhancement for Substantial 

[Financial] Hardship (Subsection 

(b)(3)).—In determining whether the 

offense resulted in substantial 

[financial] hardship to a victim, the 

court shall consider, among other 

factors, whether the offense resulted in 

the victim— 

(A) becoming insolvent; 

(B) filing for bankruptcy under the 

Bankruptcy Code (title 11, United States 

Code); 

(C) suffering substantial loss of a 

retirement, education, or other savings 

or investment fund; 

(D) making substantial changes to his 

or her employment, such as postponing 

his or her retirement plans; 

(E) making substantial changes to his 

or her living arrangements, such as 

relocating to a less expensive home; 

[(F) suffering substantial harm to his 

or her reputation or credit record, or a 

substantial inconvenience related to 

repairing his or her reputation or a 

damaged credit record;] 

[(G) being erroneously arrested or 

denied a job because an arrest record 

has been made in his or her name;] 

[(H) having his or her identity 

assumed by someone else.]’’; and 

in Note 21 (as so redesignated) [by 

striking subdivision (A)(vi)]. 

Issues for Comment 

1. The Commission seeks comment on 

whether the victims table and other 

parts of § 2B1.1 adequately address the 

harms to victims. If not, what if any 

additional enhancements or other 

provisions should the Commission 

provide to address those harms? 

Alternatively, should the Commission 

amend § 2B1.1 to limit the impact of the 

victims table if no victims were 

substantially harmed by the offense? For 

example, should the Commission 

provide that the 4-level and 6-level 

prongs of the victim table apply only if 

the offense substantially endangered the 

solvency or financial security of at least 

one victim? 

2. The proposed amendment would 

establish a new enhancement if the 

offense resulted in substantial 

[financial] hardship to one or more 

victims, and provides factors for the 

court to consider in determining 

whether the enhancement applies. 

The Commission seeks comment on 

the scope of the enhancement and the 

factors provided. Should the new 

enhancement encompass non-monetary 

harms? If so, what non-monetary harms 

should it encompass? Should any 

factors be deleted or changed? Should 

any additional factors be added? If so, 

what factors? 

How should this new enhancement 

interact with other provisions in § 2B1.1 

that account for harm to victims? For 

example, how should this new 

enhancement interact with the victims 

table in subsection (b)(2), the 

enhancement for theft from the person 

of another in subsection (b)(3), the 

enhancement for means of identification 

in subsection (b)(11), and the 

enhancement for unauthorized public 

dissemination of personal information 

in subsection (b)(17)(B)? Should this 

new enhancement be fully cumulative 

with the victims table and the other 

enhancements, or should the 

Commission reduce the cumulative 

impact of these various provisions? 

3. Section 2B1.1(b)(16)(B)(iii) 

provides a 4-level enhancement if the 

offense ‘‘substantially endangered the 

solvency or financial security of 100 or 

more victims.’’ The Commission seeks 

comment on whether subsection 

(b)(16)(B)(iii) should be eliminated (as 

reflected in the proposed amendment) 

or, in the alternative, whether the 

number of victims required by 

subsection (b)(16)(B)(iii) should be 

reduced. If the number of victims 

should be reduced, what number of 

victims should be required? 

(C) Sophisticated Means 

Synopsis of the Proposed 

Amendment: As part of its overall 

examination of § 2B1.1, the Commission 

is considering issues relating to the 

application of the sophisticated means 

enhancement set forth in subsection 

(b)(10)(C). In doing so, the Commission 

identified two issues that are the subject 

of this part of the proposed amendment. 

First, the existing enhancement 

applies if ‘‘the offense otherwise 

involved sophisticated means.’’ 

Applying this language, courts have 

applied this enhancement without a 

determination of whether the 

defendant’s own conduct was 

‘‘sophisticated.’’ See, e.g., United States 

v. Bishop-Oyedepo, 480 Fed. App’x 431, 

433–34 (7th Cir. 2012) (affirming 

enhancement for mortgage loan officer 

who submitted three fraudulent 

applications because the other 

schemer’s actions were ‘‘reasonably 

foreseeable’’; stating that ‘‘because [the 

defendant] knew of the scheme and the 

scheme as a whole was sophisticated, 

the adjustment was appropriate 

regardless of the sophistication of her 

individual actions’’). Relatedly, courts 

have varied in their analysis as to 

whether a scheme must be 

‘‘sophisticated’’ in comparison to any 


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fraud that could be sentenced under 

§ 2B1.1 or if, instead, the scheme must 

be sophisticated in comparison to a 

scheme of the type at issue. Compare 

United States v. Jones, 530 F.3d 1292, 

1307 (10th Cir. 2008) (affirming 

application of enhancement because 

scheme at issue was ‘‘readily 

distinguishable from less sophisticated 

means by which the myriad crimes 

within the ambit of § 2B1.1 may be 

committed’’), with United States v. 

Wayland, 549 F.3d 526, 529 (7th Cir. 

2008) (affirming application of 

enhancement because the ‘‘scheme 

required a greater level of planning or 

concealment than the typical health care 

fraud case’’) and United States v. 

Hance, 501 F.3d 900, 909 (8th Cir. 2007) 

(stating that the sophisticated means 

enhancement is appropriate when the 

‘‘mail fraud, viewed as a whole, was 

notably more intricate than that of the 

garden-variety mail fraud scheme’’). 

The Commission is publishing this 

part of the proposed amendment to 

inform its consideration of whether the 

enhancement should be revised such 

that it applies based only on the 

defendant’s conduct rather than offense 

as a whole, and whether the conduct 

should be compared only to similar 

frauds or to all frauds that could fall 

within the scope of § 2B1.1. 

The proposed amendment revises the 

specific offense characteristic for 

sophisticated means in subsection 

(b)(10)(C) in several ways. 

Specifically, it specifies that 

sophisticated means is determined 

relative to offenses of the same kind, 

and it narrows the scope of the specific 

offense characteristic to cases in which 

the defendant used (rather than the 

offense involved) sophisticated means. 

An issue for comment is also 

included. 

Proposed Amendment 

Section 2B1.1(b)(10)(C) is amended by 

inserting after ‘‘otherwise involved 

sophisticated means’’ the following: 

‘‘and the defendant engaged in or 

caused the conduct constituting 

sophisticated means’’. 

The Commentary to § 2B1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 9 by striking ‘‘Sophisticated Means 

Enhancement under’’ in the heading 

and inserting ‘‘Application of’’; and by 

striking subdivision (B) as follows: 

‘‘(B) Sophisticated Means 

Enhancement under Subsection 

(b)(10)(C).—For purposes of subsection 

(b)(10)(C), ‘sophisticated means’ means 

especially complex or especially 

intricate offense conduct pertaining to 

the execution or concealment of an 

offense. For example, in a telemarketing 

scheme, locating the main office of the 

scheme in one jurisdiction but locating 

soliciting operations in another 

jurisdiction ordinarily indicates 

sophisticated means. Conduct such as 

hiding assets or transactions, or both, 

through the use of fictitious entities, 

corporate shells, or offshore financial 

accounts also ordinarily indicates 

sophisticated means.’’; and inserting the 

following new subdivision (B): 

‘‘(B) Sophisticated Means 

Enhancement under Subsection 

(b)(10)(C).—For purposes of subsection 

(b)(10)(C), ‘sophisticated means’ means 

especially complex or especially 

intricate offense conduct that displays a 

significantly greater level of planning or 

employs significantly more advanced 

methods in executing or concealing the 

offense than a typical offense of the 

same kind. Conduct that is common to 

offenses of the same kind ordinarily 

does not constitute sophisticated means. 

In addition, application of subsection 

(b)(10)(C) requires not only that the 

offense involve conduct constituting 

sophisticated means but also that the 

defendant engaged in or caused such 

conduct, i.e., the defendant committed 

such conduct or the defendant aided, 

abetted, counseled, commanded, 

induced, procured, or willfully caused 

such conduct. See § 1B1.3(a)(1)(A).’’. 

Issue for Comment 

1. The proposed amendment would 

specify that ‘‘sophisticated means’’ is 

determined relative to other offenses of 

the same kind. What guidance, if any, 

should the Commission provide for 

determining what offenses are of the 

same kind, for purposes of determining 

sophisticated means? For example, are 

all telemarketing fraud offenses of the 

same kind, or should distinctions be 

made among different kinds of 

telemarketing fraud offenses, or— 

conversely—are all telemarketing fraud 

offenses in fact a subset of a broader 

category? Similarly, are all theft offenses 

of the same kind, or are there broader 

or narrower distinctions that should be 

made? 

(D) Fraud on the Market and Related 

Offenses 

Synopsis of Proposed Amendment: 

This part of the proposed amendment 

addresses offenses involving the 

fraudulent inflation or deflation in the 

value of a publicly traded security or 

commodity. The proposed new 

guideline is a result of the Commission’s 

continued work on fraud offenses and, 

in particular, in the area of securities 

fraud and ‘‘fraud on the market’’ 

offenses. See 79 FR 49379 (August 20, 

2014) (identifying as a Commission 

priority for the current amendment 

cycle the continuation of its work on 

economic crimes, including among 

other things a study of offenses 

involving fraud on the market). 

The proposed amendment also 

involves the Commission’s past work in 

implementing the directive in section 

1079A(a)(1) of the Dodd-Frank Wall 

Street Reform and Consumer Protection 

Act, Public Law 111–203. 

Specifically, section 1079A(a)(1)(A) 

directed the Commission to ‘‘review 

and, if appropriate, amend’’ the 

guidelines and policy statements 

applicable to ‘‘persons convicted of 

offenses relating to securities fraud or 

any other similar provision of law, in 

order to reflect the intent of Congress 

that penalties for the offenses under the 

guidelines and policy statements 

appropriately account for the potential 

and actual harm to the public and the 

financial markets from the offenses.’’ 

In addition, section 1079A(a)(1)(B) 

provided that, in promulgating any such 

amendment, the Commission shall— 

(i) ensure that the guidelines and 

policy statements, particularly section 

2B1.1(b)(14) and section 2B1.1(b)(17) 

(and any successors thereto), reflect— 

(I) the serious nature of the offenses 

described in subparagraph (A); 

(II) the need for an effective deterrent 

and appropriate punishment to prevent 

the offenses; and 

(III) the effectiveness of incarceration 

in furthering the objectives described in 

subclauses (I) and (II); 

(ii) consider the extent to which the 

guidelines appropriately account for the 

potential and actual harm to the public 

and the financial markets resulting from 

the offenses; 

(iii) ensure reasonable consistency 

with other relevant directives and 

guidelines and Federal statutes; 

(iv) make any necessary conforming 

changes to guidelines; and 

(v) ensure that the guidelines 

adequately meet the purposes of 

sentencing, as set forth in section 

3553(a)(2) of title 18, United States 

Code. 

Securities fraud is prosecuted under 

18 U.S.C. 1348 (Securities and 

commodities fraud), which makes it 

unlawful to knowingly execute, or 

attempt to execute, a scheme or artifice 

(1) to defraud any person in connection 

with a security or (2) to obtain, by 

means of false or fraudulent pretenses, 

representations, or promises, any money 

or property in connection with the 

purchase or sale of a security. The 

statutory maximum term of 

imprisonment for an offense under 

section 1348 is 25 years. Offenses under 

section 1348 are referenced in Appendix 


rljohnson on DSK3VPTVN1PROD with NOTICES2
2590 Federal Register / Vol. 80, No. 11 / Friday, January 16, 2015 / Notices 

A (Statutory Index) to § 2B1.1 (Theft, 

Property Destruction, and Fraud). 

Securities fraud is also prosecuted 

under 18 U.S.C. 1350 (Failure of 

corporate officers to certify financial 

reports), violations of the provisions of 

law referred to in 15 U.S.C. 78c(a)(47), 

and violations of the rules, regulations, 

and orders issued by the Securities and 

Exchange Commission pursuant to those 

provisions of law. See § 2B1.1, 

comment. (n.14(A)). In addition, there 

are cases in which the defendant 

committed a securities law violation but 

is prosecuted under a general fraud 

statute. In general, these offenses are 

likewise referenced to § 2B1.1. 

Under the proposed amendment, the 

court is directed to use gain, rather than 

loss, for purposes of subsection (b)(1) if 

the offense involved (i) the fraudulent 

inflation or deflation in the value of a 

publicly traded security or commodity 

and (ii) the submission of false 

information in a public filing with the 

Securities and Exchange Commission or 

similar regulator. However, the 

enhancement under subsection (b)(1) 

shall be not less than [14]–[22] levels. 

While cases involving this conduct 

occur infrequently (the Commission 

identified seven such cases in fiscal 

years 2012 and 2013), the Commission 

has received comment that these cases 

are complex, resulting in courts 

applying a variety of methods to 

determine the appropriate enhancement 

under subsection (b)(1). In such cases in 

fiscal years 2012 and 2013, the median 

enhancement under subsection (b)(1) 

was 14 levels and the average sentence 

was 48 months. 

As a conforming change, the special 

rule at Application Note 3(F)(ix), 

relating to the calculation of loss in 

cases involving the fraudulent inflation 

in the value of a publicly traded security 

or commodity, is deleted. 

Issues for comment are also included. 

Proposed Amendment 

Section 2B1.1 is amended in 

subsection (b)(1) by adding after 

subparagraph (P) the following proviso 

to subsection (b)(1): 

‘‘Provided, that if the offense involved 

(i) the fraudulent inflation or deflation 

in the value of a publicly traded security 

or commodity and (ii) the submission of 

false information in a public filing with 

the Securities and Exchange 

Commission or similar regulator, the 

enhancement determined above shall be 

based on the gain that resulted from the 

offense rather than the loss. However, 

the enhancement under subsection 

(b)(1) shall be not less than [14]–[22] 

levels.’’. 

The Commentary to § 2B1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 3(F) by deleting subdivision (ix). 

Issues for Comment 

1. In 2012, the Commission responded 

to directives in the Dodd-Frank Wall 

Street Reform and Consumer Protection 

Act, Public Law 111–203, by providing, 

among other things, a special rule for 

determining actual loss in cases 

involving the fraudulent inflation or 

deflation in the value of a publicly 

traded security or commodity, see 

§ 2B1.1, comment. (n.3(F)(ix)), and 

departure provisions for cases in which 

there was risk of a significant disruption 

of a national financial market, see 

§ 2B1.1, comment. (n.20(A)(iv)), and 

cases in which there was a securities 

fraud involving a fraudulent statement 

made publicly to the market, see 

§ 2B1.1, comment. (n.20(C)). 

The Commission seeks comment on 

the operation of these provisions and 

whether they adequately address ‘‘fraud 

on the market’’ cases and similar types 

of cases involving the financial markets. 

Should the Commission revise these 

provisions to better address these types 

of cases? If so, how? Should the 

Commission make any other changes to 

the guidelines to address these types of 

cases? If so, what changes should the 

Commission make? For example, should 

the Commission provide a separate 

guideline for these cases? In the 

alternative, should these cases be 

sentenced under § 2B1.4 (Insider 

Trading) instead of § 2B1.1, and if so, 

what if any changes should be made to 

§ 2B1.4 to address these cases? 

2. The Commission seeks comment on 

whether gain, rather than loss, is a more 

appropriate method for determining the 

harm accountable to the defendant in 

‘‘fraud on the market’’ cases. What are 

the advantages and disadvantages of 

using gain to measure harm in such 

cases? Are there application issues that 

would arise in determining gain in such 

cases? If so, what are the issues and 

how, if at all, should the Commission 

address them? 

3. The Commission has heard 

concerns that gain and loss are difficult 

to measure in ‘‘fraud on the market’’ 

cases and may not effectively address 

the role of market forces and other 

factors. Accordingly, it has been argued, 

the use of gain or loss may over-punish 

some defendants and under-punish 

others. How, if at all, should the 

Commission address this issue? 

In particular, the Commission seeks 

comment on whether ‘‘fraud on the 

market’’ offenses should be structured to 

include a minimum level of 

enhancement of [14]–[22] levels (as 

bracketed in the proposed amendment) 

under subsection (b)(1). Would such an 

approach be consistent with the 

purposes of sentencing and the 

directives to the Commission in the 

Dodd-Frank Wall Street Reform and 

Consumer Protection Act? Should the 

Commission consider such an 

approach? If so, what minimum level of 

enhancement should be provided? 

If the Commission were to provide 

such a minimum enhancement for such 

cases, should the Commission also 

specify that certain other specific 

offense characteristics in the guideline 

should not apply in such cases? 

[FR Doc. 2015–00665 Filed 1–15–15; 8:45 am] 

BILLING CODE 2210–40–P 


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