Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices 40651 

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

USSC Rules of Practice and Procedure 4.4. 

William H. Pryor, Jr., 

Acting Chair. 

[FR Doc. 2017–18077 Filed 8–24–17; 8:45 am] 

BILLING CODE 2210–40–P 

UNITED STATES SENTENCING 

COMMISSION 

Sentencing Guidelines for United 

States Courts 

AGENCY: United States Sentencing 

Commission 

ACTION: Notice of 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: The United States Sentencing 

Commission is considering 

promulgating 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 several issues for 

comment, some of which are set forth 

together with the proposed 

amendments, and one of which 

(regarding retroactive application of 

proposed amendments) is set forth in 

the Supplementary Information section 

of this notice. 

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 October 10, 2017. Written reply 

comments, which may only respond to 

issues raised in the original comment 

period, should be received by the 

Commission not later than November 6, 

2017. Public comment regarding a 

proposed amendment received after the 

close of the comment period, and reply 

comment received on issues not raised 

in the original comment period, may not 

be considered. 

(2) Public Hearing.—The Commission 

may hold a public hearing regarding the 

proposed amendments and issues for 

comment set forth in this notice. Further 

information regarding any public 

hearing that may be scheduled, 

including requirements for testifying 

and providing written testimony, as 

well as the date, time, location, and 

scope of the hearing, will be provided 

by the Commission on its Web site at 

www.ussc.gov. 

ADDRESSES: All written 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: 

Christine Leonard, Director, Office of 

Legislative and Public Affairs, (202) 

502–4500, pubaffairs@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). 

Publication of a proposed amendment 

requires the affirmative vote of at least 

three voting members of the 

Commission 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). 

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, policy statement, 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 

suggestions on how the Commission 

should respond to those issues. 

In summary, the proposed 

amendments and issues for comment set 

forth in this notice are as follows: 

(1) A multi-part proposed amendment 

to respond to the Bipartisan Budget Act 

of 2015, Public Law 114–74 (Nov. 2, 

2015), including (A) revisions to 

Appendix A (Statutory Index), and a 

related issue for comment; and (B) 

amending § 2B1.1 (Theft, Property 

Destruction, and Fraud) to address new 

increased penalties for certain persons 

who commit fraud offenses under 

certain Social Security programs, and 

related issues for comment; 

(2) a multi-part proposed amendment 

relating to the findings and 

recommendations contained in the May 

2016 Report of the Commission’s Tribal 

Issues Advisory Group, including (A) 

amending the Commentary to § 4A1.3 

(Departures Based on Inadequacy of 

Criminal History Category (Policy 

Statement)) to set forth a non-exhaustive 

list of factors for the court to consider 

in determining whether, and to what 

extent, an upward departure based on a 

tribal court conviction is appropriate, 

and related issues for comment; and (B) 

amending the Commentary to § 1B1.1 

(Application Instructions) to provide a 

definition of ‘‘court protection order,’’ 

and a related issue for comment; 

(3) a multi-part proposed amendment 

to Chapters Four (Criminal History and 

Criminal Livelihood) and Five 

(Determining the Sentence), including 

(A) setting forth options for a new 

Chapter Four guideline, at § 4C1.1 (First 

Offenders), and amending § 5C1.1 

(Imposition of a Term of Imprisonment) 

to provide lower guideline ranges for 

‘‘first offenders’’ generally and increase 

the availability of alternatives to 

incarceration for such offenders at the 

lower levels of the Sentencing Table, 

and related issues for comment; and (B) 

revising Chapter Five to (i) amend the 

Sentencing Table in Chapter Five, Part 

A to expand Zone B by consolidating 

Zones B and C and (ii) amend the 

Commentary to § 5F1.2 (Home 

Detention) to revise language requiring 

electronic monitoring, and related 

issues for comment. 

(4) a proposed amendment to the 

Commentary to § 3E1.1 (Acceptance of 

Responsibility) setting forth options to 

revise how a defendant’s challenge to 

relevant conduct should be considered 

in determining whether the defendant 

has accepted responsibility for purposes 

of the guideline, and a related issue for 

comment; 

(5) a multi-part proposed amendment 

to the Guidelines Manual to respond to 

recently enacted legislation and 


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40652 Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices 

miscellaneous guideline issues, 

including (A) amending § 2B5.3 

(Criminal Infringement of Copyright or 

Trademark) to respond to changes made 

by the Transnational Drug Trafficking 

Act of 2015, Public Law 114–154 (May 

16, 2016); (B) amending § 2A3.5 (Failure 

to Register as a Sex Offender), § 2A3.6 

(Aggravated Offenses Relating to 

Registration as a Sex Offender), and 

Appendix A (Statutory Index) to 

respond to changes made by the 

International Megan’s Law to Prevent 

Child Exploitation and Other Sexual 

Crimes Through Advanced Notification 

of Traveling Sex Offenders Act, Public 

Law 114–119 (Feb. 8, 2016); (C) 

revisions to Appendix A (Statutory 

Index) to respond to a new offense 

established by the Frank R. Lautenberg 

Chemical Safety for the 21st Century 

Act, Public Law 114–182 (June 22, 

2016); (D) a technical amendment to 

§ 2G1.3 (Promoting a Commercial Sex 

Act or Prohibited Sexual Conduct with 

a Minor; Transportation of Minors to 

Engage in a Commercial Sex Act or 

Prohibited Sexual Conduct; Travel to 

Engage in Commercial Sex Act or 

Prohibited Sexual Conduct with a 

Minor; Sex Trafficking of Children; Use 

of Interstate Facilities to Transport 

Information about a Minor); and (E) 

amending § 5D1.3 (Conditions of 

Supervised Release) to respond to 

changes made by the Justice for All 

Reauthorization Act of 2016, Public Law 

114–324 (Dec. 16, 2016). 

(6) a proposed amendment to make 

technical changes to § 2D1.1 (Unlawful 

Manufacturing, Importing, Exporting, or 

Trafficking (Including Possession with 

Intent to Commit These Offenses); 

Attempt or Conspiracy) to replace 

‘‘marihuana equivalency’’ as the 

conversion factor in the Drug 

Equivalency Tables for determining 

penalties for certain controlled 

substances; 

(7) a proposed amendment to make 

various technical changes to the 

Guidelines Manual, including (A) an 

explanatory note in Chapter One, Part 

A, Subpart 1(4)(b) (Departures) and 

clarifying changes to the Commentary to 

§ 2B1.1 (Theft, Property Destruction, 

and Fraud); (B) technical changes to 

§ 4A1.2 (Definitions and Instructions for 

Computing Criminal History) and to the 

Commentary of other guidelines to 

correct title references to § 4A1.3 

(Departures Based on Inadequacy of 

Criminal History Category (Policy 

Statement)); and (C) clerical changes to 

§ 2D1.11 (Unlawful Distributing, 

Importing, Exporting or Possessing a 

Listed Chemical; Attempt or 

Conspiracy), § 5D1.3 (Conditions of 

Supervised Release), Appendix A 

(Statutory Index), and to the 

Commentary of other guidelines. 

In addition, 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 (d) 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(d) 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(d). To the extent practicable, 

public comment should address each of 

these factors. 

The text of the proposed amendments 

and related issues for comment are set 

forth below. Additional information 

pertaining to the proposed amendments 

and issues for comment 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 4.3, 

4.4. 

William H. Pryor, Jr., 

Acting Chair. 

Proposed Amendments to the 

Sentencing Guidelines, Policy 

Statements, and Official Commentary 

1. Bipartisan Budget Act 

Synopsis of Proposed Amendment: 

This proposed amendment responds to 

the Bipartisan Budget Act of 2015, 

Public Law 114–74 (Nov. 2, 2015), 

which, among other things, amended 

three existing criminal statutes 

concerned with fraudulent claims under 

certain Social Security programs. 

The three criminal statutes amended 

by the Bipartisan Budget Act of 2015 are 

sections 208 (Penalties [for fraud 

involving the Federal Old-Age and 

Survivors Insurance Trust Fund]), 811 

(Penalties for fraud [involving special 

benefits for certain World War II 

veterans]), and 1632 (Penalties for fraud 

[involving supplemental security 

income for the aged, blind, and 

disabled]) of the Social Security Act (42 

U.S.C. 408, 1011, and 1383a, 

respectively). 

(A) Conspiracy To Commit Social 

Security Fraud 

The Bipartisan Budget Act of 2015 

added new subdivisions prohibiting 

conspiracy to commit fraud for 

substantive offenses already contained 

in the three statutes (42 U.S.C. 408, 

1011, and 1383a). For each of the three 

statutes, the new subdivision provides 

that whoever ‘‘conspires to commit any 

offense described in any of [the] 

paragraphs’’ enumerated shall be 

imprisoned for not more than five years, 

the same statutory maximum penalty 

applicable to the substantive offense. 

The three amended statutes are 

currently referenced in Appendix A 

(Statutory Index) to § 2B1.1 (Theft, 

Property Destruction, and Fraud). The 

proposed amendment would amend 

Appendix A so that sections 408, 1011, 

and 1383a of Title 42 are referenced not 

only to § 2B1.1 but also to § 2X1.1 

(Attempt, Solicitation, or Conspiracy 

(Not Covered by a Specific Office 

Guideline)). 

An issue for comment is provided. 

(B) Increased Penalties for Certain 

Individuals Violating Positions of Trust 

The Bipartisan Budget Act of 2015 

also amended sections 408, 1011, and 

1383a of Title 42 to add increased 

penalties for certain persons who 

commit fraud offenses under the 

relevant Social Security programs. The 

Act included a provision in all three 

statutes identifying such a person as: 

a person who receives a fee or other 

income for services performed in 

connection with any determination with 

respect to benefits under this title 

(including a claimant representative, 

translator, or current or former 

employee of the Social Security 

Administration), or who is a physician 

or other health care provider who 

submits, or causes the submission of, 

medical or other evidence in connection 

with any such determination . . . . 

A person who meets this requirement 

and is convicted of a fraud offense 

under one of the three amended statutes 

may be imprisoned for not more than 

ten years, double the otherwise 

applicable five-year penalty for other 

offenders. The new increased penalties 

apply to all of the fraudulent conduct in 

subsection (a) of the three statutes. 

The proposed amendment would 

amend § 2B1.1 to address cases in 

which the defendant was convicted 

under 42 U.S.C. 408(a), 1011(a), or 

1383a(a) and the statutory maximum 

term of ten years’ imprisonment applies. 


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Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices 40653 

It provides an enhancement of [4][2] 

levels and a minimum offense level of 

[14][12] for such cases. It also adds 

Commentary specifying whether an 

adjustment under § 3B1.3 (Abuse of 

Position of Trust or Use of Special Skill) 

applies — bracketing two possibilities: 

if the enhancement applies, the 

adjustment does not apply; and if the 

enhancement applies, the adjustment is 

not precluded from applying. 

Issues for comment are also provided. 

(A) Conspiracy To Commit Social 

Security Fraud 

Proposed Amendment 

Appendix A (Statutory Index) is 

amended in the line referenced to 42 

U.S.C. 408 by inserting ‘‘, 2X1.1’’ at the 

end; in the line referenced to 42 U.S.C. 

1011 by inserting ‘‘, 2X1.1’’ at the end; 

and in the line referenced to 42 U.S.C. 

1383a(a) by inserting ‘‘, 2X1.1’’ at the 

end. 

Issue for Comment 

1. Part A of the proposed amendment 

would reference the new conspiracy 

offenses under 42 U.S.C. 408, 1011, and 

1383a to § 2X1.1 (Attempt, Solicitation, 

or Conspiracy (Not Covered by a 

Specific Office Guideline)). The 

Commission invites comment on 

whether the guidelines covered by the 

proposed amendment adequately 

account for these offenses. If not, what 

revisions to the guidelines would be 

appropriate to account for these 

offenses? Should the Commission 

reference these new offenses to other 

guidelines instead of, or in addition to, 

the guidelines covered by the proposed 

amendment? 

(B) Increased Penalties for Certain 

Individuals Violating Positions of Trust 

Proposed Amendment 

Section 2B1.1(b) is amended by 

redesignating paragraphs (13) through 

(19) as paragraphs (14) through (20), 

respectively, and by inserting the 

following new paragraph (13): 

‘‘(13) If the defendant was convicted 

under 42 U.S.C. 408(a), 1011(a), or 

1383a(a) and the statutory maximum 

term of ten years’ imprisonment applies, 

increase by [4][2] levels. If the resulting 

offense level is less than [14][12], 

increase to level [14][12].’’. 

The Commentary to § 2B1.1 captioned 

‘‘Application Notes’’ is amended by 

redesignating Notes 11 through 20 as 

Notes 12 through 21, respectively, and 

by inserting the following new Note 11: 

‘‘11. Interaction of Subsection (b)(13) 

and § 3B1.3.—[If subsection (b)(13) 

applies, do not apply § 3B1.3 (Abuse of 

Position of Trust or Use of Special 

Skill).][Application of subsection (b)(13) 

does not preclude a defendant from 

consideration for an adjustment under 

§ 3B1.3 (Abuse of Position of Trust or 

Use of Special Skill).]’’. 

Issues for Comment 

1. The Bipartisan Budget Act of 2015 

amended sections 408, 1011, and 1383a 

of Title 42 to include a provision in all 

three statutes increasing the statutory 

maximum term of imprisonment from 

five years to ten years for certain 

persons who commit fraud offenses 

under subsection (a) of the three 

statutes. The Act identifies such a 

person as: 

a person who receives a fee or other 

income for services performed in 

connection with any determination with 

respect to benefits under this title 

(including a claimant representative, 

translator, or current or former 

employee of the Social Security 

Administration), or who is a physician 

or other health care provider who 

submits, or causes the submission of, 

medical or other evidence in connection 

with any such determination . . . . 

The Commission seeks comment on 

how, if at all, the guidelines should be 

amended to address cases in which the 

offense of conviction is 42 U.S.C. 408, 

1011, or 1383a, and the statutory 

maximum term of ten years’ 

imprisonment applies because the 

defendant was a person described in 42 

U.S.C. 408(a), 1011(a), or 1383a(a). Are 

these cases adequately addressed by 

existing provisions in the guidelines, 

such as the adjustment in § 3B1.3 

(Abuse of Position of Trust or Use of 

Special Skill)? If so, as an alternative to 

the proposed amendment, should the 

Commission amend § 2B1.1 only to 

provide an application note that 

expressly provides that, for a defendant 

subject to the ten years’ statutory 

maximum in such cases, an adjustment 

under § 3B1.3 ordinarily would apply? 

If not, how should the Commission 

amend the guidelines to address these 

cases? 

2. The proposed amendment would 

amend § 2B1.1 to provide an 

enhancement and a minimum offense 

level for cases in which the defendant 

was convicted under 42 U.S.C. 408(a), 

1011(a), or 1383a(a) and the statutory 

maximum term of ten years’ 

imprisonment applies because the 

defendant was a person described in 42 

U.S.C. 408(a), 1011(a), or 1383a(a). 

However, there may be cases in which 

a defendant, who meets the criteria set 

forth for the new statutory maximum 

term of ten years’ imprisonment, is 

convicted under a general fraud statute 

(e.g., 18 U.S.C. 1341) for an offense 

involving conduct described in 42 

U.S.C. 408(a), 1011(a), or 1383a(a). 

The Commission seeks comment on 

whether the Commission should instead 

amend § 2B1.1 to provide a general 

specific offense characteristic for such 

cases. For example, should the 

Commission provide an enhancement 

for cases in which the offense involved 

conduct described in 42 U.S.C. 408(a), 

1011(a), or 1383a(a) and the defendant 

is a person ‘‘who receives a fee or other 

income for services performed in 

connection with any determination with 

respect to benefits [covered by those 

statutory provisions] (including a 

claimant representative, translator, or 

current or former employee of the Social 

Security Administration), or who is a 

physician or other health care provider 

who submits, or causes the submission 

of, medical or other evidence in 

connection with any such 

determination’’? If so, how many levels 

would be appropriate for such an 

enhancement? How should such an 

enhancement interact with the existing 

enhancements at § 2B1.1 and the 

Chapter Three adjustment at § 3B1.3 

(Abuse of Position of Trust or Use of 

Special Skill)? 

2. Tribal Issues 

Synopsis of Proposed Amendment: 

This proposed amendment is the result 

of the Commission’s study of the May 

2016 Report of the Commission’s Tribal 

Issues Advisory Group. See U.S. 

Sentencing Comm’n, ‘‘Notice of Final 

Priorities,’’ 82 FR 39949 (Aug. 22, 2017). 

See also Report of the Tribal Issues 

Advisory Group (May 16, 2016), at 

http://www.ussc.gov/research/researchpublications/report-tribal-issuesadvisory-group. 

In 2015, the Commission established 

the Tribal Issues Advisory Group (TIAG) 

as an ad hoc advisory group to the 

Commission. Among other things, the 

Commission tasked the TIAG with 

studying the following issues— 

(A) the operation of the federal 

sentencing guidelines as they relate to 

American Indian defendants and 

victims and to offenses committed in 

Indian Country, and any viable methods 

for revising the guidelines to (i) improve 

their operation or (ii) address particular 

concerns of tribal communities and 

courts; 

(B) whether there are disparities in 

the application of the federal sentencing 

guidelines to American Indian 

defendants, and, if so, how to address 

them; 

(C) the impact of the federal 

sentencing guidelines on offenses 

committed in Indian Country in 


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40654 Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices 

comparison with analogous offenses 

prosecuted in state courts and tribal 

courts; 

(D) the use of tribal court convictions 

in the computation of criminal history 

scores, risk assessment, and for other 

purposes; 

(E) how the federal sentencing 

guidelines should account for protection 

orders issued by tribal courts; and 

(F) any other issues relating to 

American Indian defendants and 

victims, or to offenses committed in 

Indian Country, that the TIAG considers 

appropriate. See Tribal Issues Advisory 

Group Charter § 1(b)(3). 

The Commission also directed the 

TIAG to present a final report with its 

findings and recommendations, 

including any recommendations that the 

TIAG considered appropriate on 

potential amendments to the guidelines 

and policy statements. See id. § 6(a). On 

May 16, 2016, the TIAG presented to the 

Commission its final report. Among the 

recommendations suggested in the 

Report, the TIAG recommends revisions 

to the Guidelines Manual relating to the 

use of tribal court convictions in the 

computation of criminal history points 

and how the guidelines should account 

for protection orders issued by tribal 

courts. 

The proposed amendment contains 

two parts (Parts A and B). The 

Commission is considering whether to 

promulgate one or both of these parts, 

as they are not mutually exclusive. 

(A) Tribal Court Convictions 

Pursuant to Chapter Four, Part A 

(Criminal History), sentences resulting 

from tribal court convictions are not 

counted for purposes of calculating 

criminal history points, but may be 

considered under § 4A1.3 (Departures 

Based on Inadequacy of Criminal 

History Category (Policy Statement)). 

See USSG § 4A1.2(i). The policy 

statement at § 4A1.3 allows for upward 

departures if reliable information 

indicates that the defendant’s criminal 

history category substantially 

underrepresents the seriousness of the 

defendant’s criminal history. Among the 

grounds for departure, the policy 

statement includes ‘‘[p]rior sentences 

not used in computing the criminal 

history category (e.g., sentences for 

foreign and tribal offenses).’’ USSG 

§ 4A1.3(a)(2)(A). 

As noted in the TIAG’s report, in 

recent years there have been important 

changes in tribal criminal jurisdiction. 

In 2010, Congress enacted the Tribal 

Law and Order Act of 2010 (TLOA), 

Public Law 111–211, to address high 

rates of violent crime in Indian Country 

by improving criminal justice funding 

and infrastructure in tribal government, 

and expanding the sentencing authority 

of tribal court systems. In 2013, the 

Violence Against Women 

Reauthorization Act of 2013 (VAWA 

Reauthorization), Public Law 113–4, 

was enacted to expand the criminal 

jurisdiction of tribes to prosecute, 

sentence, and convict Indians and nonIndians who assault Indian spouses or 

dating partners or violate a protection 

order in Indian Country. It also 

established new assault offenses and 

enhanced existing assault offenses. Both 

statutes increased criminal jurisdiction 

for tribal courts, but also required more 

robust court procedures and provided 

more procedural protections for 

defendants. 

The TIAG notes in its report that 

‘‘[w]hile some tribes have exercised 

expanded jurisdiction under TLOA and 

the VAWA Reauthorization, most have 

not done so. Given the lack of tribal 

resources, and the absence of significant 

additional funding under TLOA and the 

VAWA Reauthorization to date, it is not 

certain that more tribes will be able to 

do so any time soon.’’ TIAG Report, at 

10–11. Members of the TIAG describe 

their experience with tribal courts as 

‘‘widely varied,’’ expressing among their 

findings certain concerns about funding, 

perceptions of judicial bias or political 

influence, due process protections, and 

access to tribal court records. Id. at 11– 

12. 

The TIAG report highlights that 

‘‘[t]ribal courts occupy a unique and 

valuable place in the criminal justice 

system,’’ while also recognizing that 

‘‘[t]ribal courts range in style.’’ Id. at 13. 

According to the TIAG, the differences 

in style and the concerns expressed 

above ‘‘make it often difficult for a 

federal court to determine how to weigh 

tribal court convictions in rendering a 

sentencing decision.’’ Id. at 11. It also 

asserts that ‘‘taking a single approach to 

the consideration of tribal court 

convictions would be very difficult and 

could potentially lead to a disparate 

result among Indian defendants in 

federal courts.’’ Id. at 12. Thus, the 

TIAG concludes that tribal convictions 

should not be counted for purposes of 

determining criminal history points 

pursuant to Chapter Four, Part A, and 

that ‘‘the current use of USSG § 4A1.3 

to depart upward in individual cases 

continues to allow the best formulation 

of ‘sufficient but not greater than 

necessary’ sentences for defendants, 

while not increasing sentencing 

disparities or introducing due process 

concerns.’’ Id. Nevertheless, the TIAG 

recommends that the Commission 

amend § 4A1.3 to provide guidance and 

a more structured analytical framework 

for courts to consider when determining 

whether a departure is appropriate 

based on a defendant’s record of tribal 

court convictions. The guidance 

recommended by the TIAG ‘‘collectively 

. . . reflect[s] important considerations 

for courts to balance the rights of 

defendants, the unique and important 

status of tribal courts, the need to avoid 

disparate sentences in light of disparate 

tribal court practices and circumstances, 

and the goal of accurately assessing the 

severity of any individual defendant’s 

criminal history.’’ Id. at 13. 

The proposed amendment would 

amend the Commentary to § 4A1.3 to set 

forth a non-exhaustive list of factors for 

the court to consider in determining 

whether, and to what extent, an upward 

departure based on a tribal court 

conviction is appropriate. 

Issues for comment are also provided. 

(B) Court Protection Orders 

Under the Guidelines Manual, the 

violation of a court protection order is 

a specific offense characteristic in three 

Chapter Two offense guidelines. See 

USSG §§ 2A2.2 (Aggravated Assault), 

2A6.1 (Threatening or Harassing 

Communications; Hoaxes; False Liens), 

and 2A6.2 (Stalking or Domestic 

Violence). The Commission has heard 

concerns that the term ‘‘court protection 

order’’ has not been defined in the 

guidelines and should be clarified. 

The TIAG notes in its report the 

importance of defining ‘‘court 

protection order’’ in the guidelines, 

because— 

[a] clear definition of that term will ensure 

that orders used for sentencing 

enhancements are the result of court 

proceedings assuring appropriate due process 

protections, that there is consistent 

identification and treatment of such orders, 

and that such orders issued by tribal courts 

receive treatment consistent with that of 

other issuing jurisdictions. TIAG Report, at 

14. 

The TIAG recommends that the 

Commission adopt a definition of ‘‘court 

protection order’’ that incorporates the 

statutory provisions at 18 U.S.C. 2265 

and 2266. Section 2266(5) provides that 

the term ‘‘protection order’’ includes: 

(A) any injunction, restraining order, or 

any other order issued by a civil or criminal 

court for the purpose of preventing violent or 

threatening acts or harassment against, sexual 

violence, or contact or communication with 

or physical proximity to, another person, 

including any temporary or final order issued 

by a civil or criminal court whether obtained 

by filing an independent action or as a 

pendente lite order in another proceeding so 

long as any civil or criminal order was issued 

in response to a complaint, petition, or 

motion filed by or on behalf of a person 

seeking protection; and 


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(B) any support, child custody or visitation 

provisions, orders, remedies or relief issued 

as part of a protection order, restraining 

order, or injunction pursuant to State, tribal, 

territorial, or local law authorizing the 

issuance of protection orders, restraining 

orders, or injunctions for the protection of 

victims of domestic violence, sexual assault, 

dating violence, or stalking. 18 U.S.C. 

2266(5). 

Section 2265(b) provides that 

A protection order issued by a State, tribal, 

or territorial court is consistent with this 

subsection if— 

(1) such court has jurisdiction over the 

parties and matter under the law of such 

State, Indian tribe, or territory; and 

(2) reasonable notice and opportunity to be 

heard is given to the person against whom 

the order is sought sufficient to protect that 

person’s right to due process. In the case of 

ex parte orders, notice and opportunity to be 

heard must be provided within the time 

required by State, tribal, or territorial law, 

and in any event within a reasonable time 

after the order is issued, sufficient to protect 

the respondent’s due process rights. 18 

U.S.C. 2265(b). 

The proposed amendment would 

amend the Commentary to § 1B1.1 

(Application Instructions) to provide a 

definition of court protection order 

derived from 18 U.S.C. 2266(5), with a 

provision that it must be consistent with 

18 U.S.C. 2265(b). 

An issue for comment is also 

provided. 

(A) Tribal Court Convictions 

Proposed Amendment 

Section 4A1.3(a)(2) is amended by 

striking ‘‘subsection (a)’’ and inserting 

‘‘subsection (a)(1)’’; and by striking 

‘‘tribal offenses’’ and inserting ‘‘tribal 

convictions’’. 

The Commentary to § 4A1.3 captioned 

‘‘Application Notes’’ is amended in 

Note 2 by inserting at the end the 

following new paragraph (C): 

‘‘(C) Upward Departures Based on 

Tribal Court Convictions.—In 

determining whether, or to what extent, 

an upward departure based on a tribal 

court conviction is appropriate, the 

court shall consider the factors set forth 

in § 4A1.3(a) above and, in addition, 

may consider relevant factors such as 

the following: 

(i) The defendant was represented by 

a lawyer, had the right to a trial by jury, 

and received other due process 

protections consistent with those 

provided to criminal defendants under 

the United States Constitution. 

(ii) The tribe was exercising expanded 

jurisdiction under the Tribal Law and 

Order Act of 2010, Public Law 111–211 

(July 29, 2010), and the Violence 

Against Women Reauthorization Act of 

2013, Public Law 113–4 (March 7, 

2013). 

(iii) The tribal court conviction is not 

based on the same conduct that formed 

the basis for a conviction from another 

jurisdiction that receives criminal 

history points pursuant to this Chapter. 

(iv) The conviction is for an offense 

that otherwise would be counted under 

§ 4A1.2 (Definitions and Instructions for 

Computing Criminal History). 

[(v) At the time the defendant was 

sentenced, the tribal government had 

formally expressed a desire that 

convictions from its courts should be 

counted for purposes of computing 

criminal history pursuant to the 

Guidelines Manual.]’’. 

Issues for Comment 

1. Part A of the proposed amendment 

would provide a list of relevant factors 

that courts may consider, in addition to 

the factors set forth in § 4A1.3(a), in 

determining whether an upward 

departure based on a tribal court 

conviction may be warranted. The 

Commission seeks comment on whether 

the factors provided in the proposed 

amendment are appropriate. Should any 

factors be deleted or changed? Should 

the Commission provide additional or 

different guidance? If so, what guidance 

should the Commission provide? 

In particular, the Commission seeks 

comment on how these factors should 

interact with each other and with the 

factors already contained in § 4A1.3(a). 

Should the Commission provide greater 

emphasis on one or more factors set 

forth in the proposed amendment? For 

example, how much weight should be 

given to factors that address due process 

concerns (subdivisions (i) and (ii)) in 

relation to the other factors provided in 

the proposed amendment, such as those 

factors relevant to preventing 

unwarranted double counting 

(subdivisions (iii) and (iv))? Should the 

Commission provide that in order to 

consider whether an upward departure 

based on a tribal court conviction is 

appropriate, and before taking into 

account any other factor, the court must 

first determine as a threshold factor that 

the defendant received due process 

protections consistent with those 

provided to criminal defendants under 

the United States Constitution? 

Finally, Part A of the proposed 

amendment brackets the possibility of 

including as a factor that courts may 

consider in deciding whether to depart 

based on a tribal court conviction if, ‘‘at 

the time the defendant was sentenced, 

the tribal government had formally 

expressed a desire that convictions from 

its courts should be counted for 

purposes of computing criminal history 

pursuant to the Guidelines Manual.’’ 

The Commission invites broad comment 

on this factor and its interaction with 

the other factors set forth in the 

proposed amendment. Is this factor 

relevant to the court’s determination of 

whether to depart? What are the 

advantages and disadvantages of 

including such a factor? How much 

weight should be given to this factor in 

relation to the other factors provided in 

the proposed amendment? What criteria 

should be used in determining when a 

tribal government has ‘‘formally 

expressed a desire’’ that convictions 

from its courts should count? How 

would tribal governments notify and 

make available such statements? 

2. Pursuant to subsection (i) of 

§ 4A1.2 (Definitions and Instructions for 

Computing Criminal History), sentences 

resulting from tribal court convictions 

are not counted for purposes of 

calculating criminal history points, but 

may be considered under § 4A1.3 

(Departures Based on Inadequacy of 

Criminal History Category (Policy 

Statement)). As stated above, the policy 

statement at § 4A1.3 allows for upward 

departures if reliable information 

indicates that the defendant’s criminal 

history category substantially 

underrepresents the seriousness of the 

defendant’s criminal history. 

The Commission invites comment on 

whether the Commission should 

consider changing how the guidelines 

account for sentences resulting from 

tribal court convictions for purposes of 

determining criminal history points 

pursuant to Chapter Four, Part A 

(Criminal History). Should the 

Commission consider amending 

§ 4A1.2(i) and, if so, how? For example, 

should the guidelines treat sentences 

resulting from tribal court convictions 

same as other sentences imposed for 

federal, state, and local offenses that 

may be used to compute criminal 

history points? Should the guidelines 

treat sentences resulting from tribal 

court convictions more akin to military 

sentences and distinguish between 

certain types of tribal courts? Is there a 

different approach the Commission 

should follow in addressing the use of 

tribal court convictions in the 

computation of criminal history scores? 

(B) Court Protection Orders 

Proposed Amendment 

The Commentary to § 1B1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by redesignating paragraphs (D) 

through (L) as paragraphs (E) through 

(M), respectively; and by inserting the 

following new paragraph (D): 


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‘‘(D) ‘court protection order’ means 

‘protection order’ as defined by 18 

U.S.C. 2266(5) and consistent with 18 

U.S.C. 2265(b).’’. 

Issue for Comment 

1. Part B of the proposed amendment 

would include in the Commentary to 

§ 1B1.1 (Application Instructions) a 

definition of court protection order 

derived from 18 U.S.C. 2266(5) and 

consistent with 18 U.S.C. 2265(b). Is this 

definition appropriate? If not, what 

definition, if any, should the 

Commission provide? 

3. First Offenders/Alternatives to 

Incarceration 

Synopsis of Proposed Amendment: 

The proposed amendment contains two 

parts (Part A and Part B). The 

Commission is considering whether to 

promulgate either or both of these parts, 

as they are not mutually exclusive. 

(A) First Offenders 

Part A of the proposed amendment is 

primarily informed by the Commission’s 

multi-year study of recidivism, 

including the circumstances that 

correlate with increased or reduced 

recidivism. See U.S. Sentencing 

Comm’n, ‘‘Notice of Final Priorities,’’ 82 

FR 39949 (Aug. 22, 2017). It is also 

informed by the Commission’s 

continued study of alternatives to 

incarceration. Id. 

Under the Guidelines Manual, 

offenders with minimal or no criminal 

history are classified into Criminal 

History Category I. ‘‘First offenders,’’ 

offenders with no criminal history, are 

addressed in the guidelines only by 

reference to Criminal History Category I. 

However, Criminal History Category I 

includes not only ‘‘first’’ offenders but 

also offenders with varying criminal 

histories, such as offenders with no 

criminal history points and those with 

one criminal history point. Accordingly, 

the following offenders are classified in 

the same category: (1) first time 

offenders with no prior convictions; (2) 

offenders who have prior convictions 

that are not counted because they were 

not within the time limits set forth in 

§ 4A1.2(d) and (e); (3) offenders who 

have prior convictions that are not used 

in computing the criminal history 

category for reasons other than their 

‘‘staleness’’ (e.g., sentences resulting 

from foreign or tribal court convictions, 

minor misdemeanor convictions or 

infractions); and (4) offenders with a 

prior conviction that received only one 

criminal history point. 

Part A sets forth a new Chapter Four 

guideline, at § 4C1.1 (First Offenders), 

that would provide lower guideline 

ranges for ‘‘first offenders’’ generally 

and increase the availability of 

alternatives to incarceration for such 

offenders at the lower levels of the 

Sentencing Table (compared to 

otherwise similar offenders in Criminal 

History Category I). Recidivism data 

analyzed by the Commission indicate 

that ‘‘first offenders’’ generally pose the 

lowest risk of recidivism. See, e.g., U.S. 

Sentencing Comm’n, ‘‘Recidivism 

Among Federal Offenders: A 

Comprehensive Overview,’’ at 18 (2016), 

available at http://www.ussc.gov/ 

research/research-publications/ 

recidivism-among-federal-offenderscomprehensive-overview. In addition, 28 

U.S.C. 994(j) directs that alternatives to 

incarceration are generally appropriate 

for first offenders not convicted of a 

violent or otherwise serious offense. The 

new Chapter Four guideline, in 

conjunction with the revision to § 5C1.1 

(Imposition of a Term of Imprisonment) 

described below, would further 

implement the congressional directive 

at section 994(j). 

Part A of the proposed amendment 

provides two options for defining a 

‘‘first offender’’ who would be eligible 

for a decrease in offense level under the 

new guideline. Option 1 defines a 

defendant as a ‘‘first offender’’ if the 

defendant did not receive any criminal 

history points from Chapter Four, Part 

A. Option 2 defines a defendant as a 

‘‘first offender’’ if the defendant has no 

prior convictions of any kind. 

Part A also provides two options for 

the decrease in offense level that would 

apply to a first offender. Option 1 

provides a decrease of [1] level from the 

offense level determined under Chapters 

Two and Three. Option 2 provides a 

decrease of [2] levels if the final offense 

level determined under Chapters Two 

and Three is less than level [16], or a 

decrease of [1] level if the offense level 

determined under Chapters Two and 

Three is level [16] or greater. 

Part A also amends § 5C1.1 

(Imposition of a Term of Imprisonment) 

to add a new subsection (g) that 

provides that if (1) the defendant is 

determined to be a first offender under 

§ 4C1.1 (First Offender), (2) [the instant 

offense of conviction is not a crime of 

violence][the defendant did not use 

violence or credible threats of violence 

or possess a firearm or other dangerous 

weapon in connection with the offense], 

and (3) the guideline range applicable to 

that defendant is in Zone A or Zone B 

of the Sentencing Table, the court 

ordinarily should impose a sentence 

other than a sentence of imprisonment 

in accordance with the other sentencing 

options. 

Finally, Part A of the proposed 

amendment also provides issues for 

comment. 

(B) Consolidation of Zones B and C in 

the Sentencing Table 

Part B of the proposed amendment is 

a result of the Commission’s continued 

study of alternatives to incarceration. 

See U.S. Sentencing Comm’n, ‘‘Notice of 

Final Priorities,’’ 82 FR 39949 (Aug. 22, 

2017). 

The Guidelines Manual defines and 

allocates sentencing options in Chapter 

Five (Determining the Sentence). This 

chapter sets forth ‘‘zones’’ in the 

Sentencing Table based on the 

minimum months of imprisonment in 

each cell. The Sentencing Table sorts all 

sentencing ranges into four zones, 

labeled A through D. Each zone allows 

for different sentencing options, as 

follows: 

Zone A.—All sentence ranges within 

Zone A, regardless of the underlying 

offense level or criminal history 

category, are zero to six months. A 

sentencing court has the discretion to 

impose a sentence that is a fine-only, 

probation-only, probation with a 

confinement condition (home detention, 

community confinement, or intermittent 

confinement), a split sentence (term of 

imprisonment with term of supervised 

release with condition of confinement), 

or imprisonment. Zone A allows for 

probation without any conditions of 

confinement. 

Zone B.—Sentence ranges in Zone B 

are from one to 15 months of 

imprisonment. Zone B allows for a 

probation term to be substituted for 

imprisonment, contingent upon the 

probation term including conditions of 

confinement. Zone B allows for nonprison sentences, which technically 

result in sentencing ranges larger than 

six months, because the minimum term 

of imprisonment is one month and the 

maximum terms begin at seven months. 

To avoid sentencing ranges exceeding 

six months, the guidelines require that 

probationary sentences in Zone B 

include conditions of confinement. 

Zone B also allows for a term of 

imprisonment (of at least one month) 

followed by a term of supervised release 

with a condition of confinement (i.e., a 

‘‘split sentence’’) or a term of 

imprisonment only. 

Zone C.—Sentences in Zone C range 

from 10 to 18 months of imprisonment. 

Zone C allows for split sentences, which 

must include a term of imprisonment 

equivalent to at least half of the 

minimum of the applicable guideline 

range. The remaining half of the term 

requires supervised release with a 

condition of community confinement or 


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home detention. Alternatively, the court 

has the option of imposing a term of 

imprisonment only. 

Zone D.—The final zone, Zone D, 

allows for imprisonment only, ranging 

from 15 months to life. 

Part B of the proposed amendment 

expands Zone B by consolidating Zones 

B and C. The expanded Zone B would 

include sentence ranges from one to 18 

months and allow for the sentencing 

options described above. Although the 

proposed amendment would in fact 

delete Zone C by its consolidation with 

Zone B, Zone D would not be 

redesignated. Finally, Part B makes 

conforming changes to §§ 5B1.1 

(Imposition of a Term of Probation) and 

5C1.1 (Imposition of a Term of 

Imprisonment). 

Part B also amends the Commentary 

to § 5F1.2 (Home Detention) to remove 

the language instructing that (1) 

electronic monitoring ‘‘ordinarily 

should be used in connection with’’ 

home detention; (2) alternative means of 

surveillance may be used ‘‘so long as 

they are effective as electronic 

monitoring;’’ and (3) ‘‘surveillance 

necessary for effective use of home 

detention ordinarily requires’’ electronic 

monitoring. 

Issues for comment are also provided. 

(A) First Offenders 

Proposed Amendment 

Chapter Four is amended by inserting 

at the end the following new Part C: 

PART C—FIRST OFFENDER 

§ 4C1.1. First Offender 

[Definition of ‘‘First Offender’’ 

[Option 1: 

(a) A defendant is a first offender if 

the defendant did not receive any 

criminal history points from Chapter 

Four, Part A.] 

[Option 2: 

(a) A defendant is a first offender if 

the defendant has no prior convictions 

of any kind.]] 

[Decrease in Offense Level for First 

Offenders 

[Option 1: 

(b) If the defendant is determined to 

be a first offender under subsection (a), 

decrease the offense level determined 

under Chapters Two and Three by [1] 

level.] 

[Option 2: 

(b) If the defendant is determined to 

be a first offender under subsection (a), 

decrease the offense level as follows: 

(1) if the offense level determined 

under Chapters Two and Three is less 

than level [16], decrease by [2] levels; or 

(2) if the offense level determined 

under Chapters Two and Three is level 

[16] or greater, decrease by [1] level.]] 

Commentary 

Application Note: 

1. Cases Involving Mandatory 

Minimum Penalties.—If the case 

involves a statutorily required minimum 

sentence of at least five years and the 

defendant meets the criteria set forth in 

subsection (a) of § 5C1.2 (Limitation on 

Applicability of Statutory Minimum 

Sentences in Certain Cases), the offense 

level determined under this section 

shall be not less than level 17. See 

§ 5C1.2(b).’’. 

Section 5C1.1 is amended by inserting 

at the end the following new subsection 

(g): 

‘‘(g) In cases in which (1) the 

defendant is determined to be a first 

offender under § 4C1.1 (First Offender), 

(2) [the instant offense of conviction is 

not a crime of violence][the defendant 

did not use violence or credible threats 

of violence or possess a firearm or other 

dangerous weapon in connection with 

the offense], and (3) the guideline range 

applicable to that defendant is in Zone 

A or B of the Sentencing Table, the 

court ordinarily should impose a 

sentence other than a sentence of 

imprisonment in accordance with the 

other sentencing options set forth in this 

guideline.’’. 

The Commentary to § 5C1.1 captioned 

‘‘Application Notes’’ is amended by 

inserting at the end the following new 

Note 10: 

‘‘10. Application of Subsection (g).— 

(A) Sentence of Probation 

Prohibited.—The court may not impose 

a sentence of probation pursuant to this 

provision if prohibited by statute. See 

§ 5B1.1 (Imposition of a Term of 

Probation). 

[(B) Definition of ‘Crime of 

Violence’.—For purposes of subsection 

(g), ‘crime of violence’ has the meaning 

given that term in § 4B1.2 (Definitions of 

Terms Used in Section 4B1.1). 

(C) Sentence of Imprisonment for First 

Offenders.—A sentence of 

imprisonment may be appropriate in 

cases in which the defendant used 

violence or credible threats of violence 

or possessed a firearm or other 

dangerous weapon in connection with 

the offense].’’. 

Issues for Comment 

1. Part A of the proposed amendment 

provides two options for how to define 

‘‘first offender’’ for purposes of applying 

the new § 4C1.1 (First Offender). Option 

1 defines a defendant as a ‘‘first 

offender’’ if the defendant did not 

receive any criminal history points from 

Chapter Four, Part A. Option 2 defines 

a defendant as a ‘‘first offender’’ if the 

defendant has no prior convictions of 

any kind. The Commission seeks 

comment on the proposed definition. 

Should the Commission adopt a broader 

definition than either Option 1 or 

Option 2? Should the Commission 

adopt a narrower definition than either 

option? Should the Commission adopt a 

definition that is narrower than Option 

1 but broader than Option 2? For 

example, should the Commission define 

‘‘first offender’’ as a defendant who did 

not receive any criminal history points 

from Chapter Four, Part A and has no 

prior felony convictions? Should the 

Commission instead define ‘‘first 

offender’’ as a defendant who either has 

no prior convictions of any kind or has 

only prior convictions that are not 

counted under § 4A1.2 for a reason 

other than being too remote in time? 

Should the Commission provide 

additional or different guidance for 

determining whether a defendant is, or 

is not, a first offender? 

2. Part A of the proposed amendment 

provides two options for the decrease in 

offense level that would apply to a first 

offender. One of the options, Option 1, 

would provide that if the defendant is 

determined to be a first offender (as 

defined in the new guideline) a decrease 

of [1] level from the offense level 

determined under Chapters Two and 

Three would apply. Should the 

Commission limit the applicability of 

the adjustment to defendants with an 

offense level determined under Chapters 

Two and Three that is less than a certain 

number of levels? For example, should 

the Commission provide that if the 

offense level determined under Chapters 

Two and Three is less than level [16], 

the offense level shall be decreased by 

[1] level? What other limitations or 

requirements, if any, should the 

Commission provide for such an 

adjustment? 

3. Part A of the proposed amendment 

would amend § 5C1.1 (Imposition of a 

Term of Imprisonment) to provide that 

if the defendant is determined to be a 

first offender under the new § 4C1.1 

(First Offender), [the defendant’s instant 

offense of conviction is not a crime of 

violence][the defendant did not use 

violence or credible threats of violence 

or possess a firearm or other dangerous 

weapon in connection with the offense], 

and the guideline range applicable to 

that defendant is in Zone A or Zone B 

of the Sentencing Table, the court 

ordinarily should impose a sentence 


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other than a sentence of imprisonment 

in accordance with the other sentencing 

options. Should the Commission further 

limit the application of such a 

rebuttable ‘‘presumption’’ and exclude 

certain categories of non-violent 

offenses? If so, what offenses should be 

excluded from the presumption of a 

non-incarceration sentence? For 

example, should the Commission 

exclude public corruption, tax, and 

other white-collar offenses? 

4. If the Commission were to 

promulgate Part A of the proposed 

amendment, what conforming changes, 

if any, should the Commission make to 

other provisions of the Guidelines 

Manual? 

(B) Consolidation of Zones B and C in 

the Sentencing Table 

Proposed Amendment 

Chapter Five, Part A is amended in 

the Sentencing Table by striking ‘‘Zone 

C’’; by redesignating Zone B to contain 

all guideline ranges having a minimum 

of at least one month but not more than 

twelve months; and by inserting below 

‘‘Zone B’’ the following: ‘‘[Zone C 

Deleted]’’. 

The Commentary to the Sentencing 

Table is amended by inserting at the end 

the following: 

‘‘Background: The Sentencing Table 

previously provided four ‘zones,’ 

labeled A through D, based on the 

minimum months of imprisonment in 

each cell. The Commission expanded 

Zone B by consolidating former Zones B 

and C. Zone B in the Sentencing Table 

now contains all guideline ranges 

having a minimum term of 

imprisonment of at least one but not 

more than twelve months. Although 

Zone C was deleted by its consolidation 

with Zone B, the Commission decided 

not to redesignate Zone D as Zone C, to 

avoid unnecessary confusion that may 

result from different meanings of ‘Zone 

C’ and ‘Zone D’ through different 

editions of the Guidelines Manual.’’. 

The Commentary to § 5B1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 1(B), in the heading, by striking 

‘‘nine months’’ and inserting ‘‘twelve 

months’’; and in Note 2 by striking 

‘‘Zone C or D’’ and inserting ‘‘Zone D’’, 

and by striking ‘‘ten months’’ and 

inserting ‘‘fifteen months’’. 

Section 5C1.1 is amended— 

in subsection (c) by striking 

‘‘subsection (e)’’ both places such term 

appears and inserting ‘‘subsection (d)’’; 

by striking subsection (d) as follows: 

‘‘(d) If the applicable guideline range 

is in Zone C of the Sentencing Table, the 

minimum term may be satisfied by— 

(1) a sentence of imprisonment; or 

(2) a sentence of imprisonment that 

includes a term of supervised release 

with a condition that substitutes 

community confinement or home 

detention according to the schedule in 

subsection (e), provided that at least 

one-half of the minimum term is 

satisfied by imprisonment.’’; 

and by redesignating subsections (e) 

and (f) as subsections (d) and (e), 

respectively. 

The Commentary to § 5C1.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 3 by striking ‘‘nine months’’ 

and inserting ‘‘twelve months’’; 

by striking Note 4 as follows: 

‘‘4. Subsection (d) provides that 

where the applicable guideline range is 

in Zone C of the Sentencing Table (i.e., 

the minimum term specified in the 

applicable guideline range is ten or 

twelve months), the court has two 

options: 

(A) It may impose a sentence of 

imprisonment. 

(B) Or, it may impose a sentence of 

imprisonment that includes a term of 

supervised release with a condition 

requiring community confinement or 

home detention. In such case, at least 

one-half of the minimum term specified 

in the guideline range must be satisfied 

by imprisonment, and the remainder of 

the minimum term specified in the 

guideline range must be satisfied by 

community confinement or home 

detention. For example, where the 

guideline range is 10–16 months, a 

sentence of five months imprisonment 

followed by a term of supervised release 

with a condition requiring five months 

community confinement or home 

detention would satisfy the minimum 

term of imprisonment required by the 

guideline range. 

The preceding example illustrates a 

sentence that satisfies the minimum 

term of imprisonment required by the 

guideline range. The court, of course, 

may impose a sentence at a higher point 

within the guideline range. For 

example, where the guideline range is 

10–16 months, both a sentence of five 

months imprisonment followed by a 

term of supervised release with a 

condition requiring six months of 

community confinement or home 

detention (under subsection (d)), and a 

sentence of ten months imprisonment 

followed by a term of supervised release 

with a condition requiring four months 

of community confinement or home 

detention (also under subsection (d)) 

would be within the guideline range.’’; 

by striking Note 6 as follows: 

‘‘6. There may be cases in which a 

departure from the sentencing options 

authorized for Zone C of the Sentencing 

Table (under which at least half the 

minimum term must be satisfied by 

imprisonment) to the sentencing options 

authorized for Zone B of the Sentencing 

Table (under which all or most of the 

minimum term may be satisfied by 

intermittent confinement, community 

confinement, or home detention instead 

of imprisonment) is appropriate to 

accomplish a specific treatment 

purpose. Such a departure should be 

considered only in cases where the 

court finds that (A) the defendant is an 

abuser of narcotics, other controlled 

substances, or alcohol, or suffers from a 

significant mental illness, and (B) the 

defendant’s criminality is related to the 

treatment problem to be addressed. 

In determining whether such a 

departure is appropriate, the court 

should consider, among other things, (1) 

the likelihood that completion of the 

treatment program will successfully 

address the treatment problem, thereby 

reducing the risk to the public from 

further crimes of the defendant, and (2) 

whether imposition of less 

imprisonment than required by Zone C 

will increase the risk to the public from 

further crimes of the defendant. 

Examples: The following examples 

both assume the applicable guideline 

range is 12–18 months and the court 

departs in accordance with this 

application note. Under Zone C rules, 

the defendant must be sentenced to at 

least six months imprisonment. (1) The 

defendant is a nonviolent drug offender 

in Criminal History Category I and 

probation is not prohibited by statute. 

The court departs downward to impose 

a sentence of probation, with twelve 

months of intermittent confinement, 

community confinement, or home 

detention and participation in a 

substance abuse treatment program as 

conditions of probation. (2) The 

defendant is convicted of a Class A or 

B felony, so probation is prohibited by 

statute (see § 5B1.1(b)). The court 

departs downward to impose a sentence 

of one month imprisonment, with 

eleven months in community 

confinement or home detention and 

participation in a substance abuse 

treatment program as conditions of 

supervised release.’’; 

by redesignating Notes 5, 7, 8, and 9 

as Notes 4, 5, 6, and 7, respectively; 

in Note 4 (as so redesignated) by 

striking ‘‘Subsection (e)’’ and inserting 

‘‘Subsection (d)’’; 

in Note 5 (as so redesignated) by 

striking ‘‘subsections (c) and (d)’’ and 

inserting ‘‘subsection (c)’’; 

and in Note 7 (as so redesignated) by 

striking ‘‘Subsection (f)’’ and inserting 

‘‘Subsection (e)’’, and by striking 

‘‘subsection (e)’’ and inserting 

‘‘subsection (d)’’. 


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The Commentary to § 5F1.2 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by striking ‘‘Electronic 

monitoring is an appropriate means of 

surveillance and ordinarily should be 

used in connection with home 

detention’’ and inserting ‘‘Electronic 

monitoring is an appropriate means of 

surveillance for home detention’’; and 

by striking ‘‘may be used so long as they 

are as effective as electronic 

monitoring’’ and inserting ‘‘may be used 

if appropriate’’. 

The Commentary to § 5F1.2 captioned 

‘‘Background’’ is amended by striking 

‘‘The Commission has concluded that 

the surveillance necessary for effective 

use of home detention ordinarily 

requires electronic monitoring’’ and 

inserting ‘‘The Commission has 

concluded that electronic monitoring is 

an appropriate means of surveillance for 

home detention’’; and by striking ‘‘the 

court should be confident that an 

alternative form of surveillance will be 

equally effective’’ and inserting ‘‘the 

court should be confident that an 

alternative form of surveillance is 

appropriate considering the facts and 

circumstances of the defendant’s case’’. 

Issues for Comment 

1. The Commission requests comment 

on whether the zone changes 

contemplated by Part B of the proposed 

amendment should apply to all offenses, 

or only to certain categories of offenses. 

The zone changes would increase the 

number of offenders who are eligible 

under the guidelines to receive a nonincarceration sentence. Should the 

Commission provide a mechanism to 

exempt certain offenses from these zone 

changes? For example, should the 

Commission provide a mechanism to 

exempt public corruption, tax, and other 

white-collar offenses from these zone 

changes (e.g., to reflect a view that it 

would not be appropriate to increase the 

number of public corruption, tax, and 

other white-collar offenders who are 

eligible to receive a non-incarceration 

sentence)? If so, what mechanism 

should the Commission provide, and 

what offenses should be covered by it? 

2. The proposed amendment would 

consolidate Zones B and C to create an 

expanded Zone B. Such an adjustment 

would provide probation with 

conditions of confinement as a 

sentencing option for current Zone C 

defendants, an option that was not 

available to such defendants before. The 

Commission seeks comment on whether 

the Commission should provide 

additional guidance to address these 

new Zone B defendants. If so, what 

guidance should the Commission 

provide? 

4. Acceptance of Responsibility 

Synopsis of Proposed Amendment: 

This proposed amendment is the result 

of the Commission’s consideration of 

miscellaneous guideline application 

issues, including whether a defendant’s 

denial of relevant conduct should be 

considered in determining whether the 

defendant has accepted responsibility 

for purposes of § 3E1.1. See U.S. 

Sentencing Comm’n, ‘‘Notice of Final 

Priorities,’’ 82 FR 39949 (Aug. 22, 2017). 

Section 3E1.1 (Acceptance of 

Responsibility) provides for a 2-level 

reduction for a defendant who clearly 

demonstrates acceptance of 

responsibility. Application Note 1(A) of 

§ 3E1.1 provides as one of the 

appropriate considerations in 

determining whether a defendant 

‘‘clearly demonstrate[d] acceptance of 

responsibility’’ the following: 

truthfully admitting the conduct comprising 

the offense(s) of conviction, and truthfully 

admitting or not falsely denying any 

additional relevant conduct for which the 

defendant is accountable under § 1B1.3 

(Relevant Conduct). Note that a defendant is 

not required to volunteer, or affirmatively 

admit, relevant conduct beyond the offense 

of conviction in order to obtain a reduction 

under subsection (a). A defendant may 

remain silent in respect to relevant conduct 

beyond the offense of conviction without 

affecting his ability to obtain a reduction 

under this subsection. However, a defendant 

who falsely denies, or frivolously contests, 

relevant conduct that the court determines to 

be true has acted in a manner inconsistent 

with acceptance of responsibility; 

In addition, Application Note 3 

provides further guidance on evidence 

that might demonstrate acceptance of 

responsibility, as follows: 

Entry of a plea of guilty prior to the 

commencement of trial combined with 

truthfully admitting the conduct comprising 

the offense of conviction, and truthfully 

admitting or not falsely denying any 

additional relevant conduct for which he is 

accountable under § 1B1.3 (Relevant 

Conduct) (see Application Note 1(A)), will 

constitute significant evidence of acceptance 

of responsibility for the purposes of 

subsection (a). However, this evidence may 

be outweighed by conduct of the defendant 

that is inconsistent with such acceptance of 

responsibility. A defendant who enters a 

guilty plea is not entitled to an adjustment 

under this section as a matter of right. 

The Commission has heard concerns 

that the Commentary to § 3E1.1 

(particularly the provisions cited above) 

encourages courts to deny a reduction in 

sentence when a defendant pleads 

guilty and accepts responsibility for the 

offense of conviction, but 

unsuccessfully challenges the 

presentence report’s assessments of 

relevant conduct. These commenters 

suggest this has a chilling effect because 

defendants are concerned such 

objections may jeopardize their 

eligibility for a reduction for acceptance 

of responsibility. 

The proposed amendment amends the 

Commentary to § 3E1.1 to revise how a 

defendant’s challenge to relevant 

conduct should be considered in 

determining whether the defendant has 

accepted responsibility for purposes of 

the guideline. Specifically, the proposed 

amendment would revise Application 

Note 1(A) by substituting a new 

sentence for the sentence that states ‘‘a 

defendant who falsely denies, or 

frivolously contests, relevant conduct 

that the court determines to be true has 

acted in a manner inconsistent with 

acceptance of responsibility.’’ The 

proposed amendment includes two 

options for the substitute. 

Option 1 would provide that ‘‘a 

defendant may make a non-frivolous 

challenge to relevant conduct without 

affecting his ability to obtain a 

reduction.’’ 

Option 2 would provide that ‘‘a 

defendant may make a challenge to 

relevant conduct without affecting his 

ability to obtain a reduction, unless the 

challenge lacks an arguable basis either 

in law or in fact.’’ 

An issue for comment is also 

provided. 

Proposed Amendment 

The Commentary to § 3E1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 1(A) by striking ‘‘However, a 

defendant who falsely denies, or 

frivolously contests, relevant conduct 

that the court determines to be true has 

acted in a manner inconsistent with 

acceptance of responsibility’’, and 

inserting the following: 

[Option 1: 

‘‘In addition, a defendant may make a 

non-frivolous challenge to relevant 

conduct without affecting his ability to 

obtain a reduction’’.] 

[Option 2: 

‘‘In addition, a defendant may make a 

challenge to relevant conduct without 

affecting his ability to obtain a 

reduction, unless the challenge lacks an 

arguable basis either in law or in fact’’.] 

Issue for Comment 

1. The Commission seeks comment on 

whether the Commission should amend 

the Commentary to § 3E1.1 (Acceptance 

of Responsibility) to change or clarify 

how a defendant’s challenge to relevant 

conduct should be considered in 

determining whether a defendant has 

accepted responsibility for purposes of 


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§ 3E1.1. If so, what changes should the 

Commission make to § 3E1.1? 

One of the options included in the 

proposed amendment, Option 1, would 

provide that ‘‘a defendant may make a 

non-frivolous challenge to relevant 

conduct without affecting his ability to 

obtain a reduction’’ under § 3E1.1(a). If 

the Commission were to adopt Option 1, 

what additional guidance, if any, should 

the Commission provide on the meaning 

of ‘‘non-frivolous’’? The second option 

included in the proposed amendment, 

Option 2, would provide that ‘‘a 

defendant may make a challenge to 

relevant conduct without affecting his 

ability to obtain a reduction, unless the 

challenge lacks an arguable basis either 

in law or in fact.’’ If the Commission 

were to adopt Option 2, should the 

Commission provide additional 

guidance on when a challenge ‘‘lacks an 

arguable basis either in law or in fact’’? 

For example, should the Commission 

state explicitly that the fact that a 

challenge is unsuccessful does not by 

itself establish that the challenge lacked 

an arguable basis either in law or in 

fact? If the Commission were to adopt 

either Option 1 or Option 2, should the 

challenges covered by the amendment 

include informal challenges to relevant 

conduct during the sentencing process, 

whether or not the issues challenged are 

determinative to the applicable 

guideline range? Should the 

Commission broaden the proposed 

provision to address other sentencing 

considerations, such as departures or 

variances? Should the Commission, 

instead of adopting either option in the 

proposed amendment, remove from 

§ 3E1.1 all references to relevant 

conduct for which the defendant is 

accountable under § 1B1.3, and 

reference only the elements of the 

offense of conviction? 

5. Miscellaneous 

Synopsis of Proposed Amendment: 

This proposed amendment responds to 

recently enacted legislation and 

miscellaneous guideline issues. 

The proposed amendment contains 

five parts (Parts A through E). The 

Commission is considering whether to 

promulgate any or all of these parts, as 

they are not mutually exclusive. They 

are as follows— 

Part A responds to the Transnational 

Drug Trafficking Act of 2015, Public 

Law 114–154 (May 16, 2016), by 

amending § 2B5.3 (Criminal 

Infringement of Copyright or 

Trademark). 

Part B responds to the International 

Megan’s Law to Prevent Child 

Exploitation and Other Sexual Crimes 

Through Advanced Notification of 

Traveling Sex Offenders Act, Public 

Law 114–119 (Feb. 8, 2016), by 

amending § 2A3.5 (Failure to Register as 

a Sex Offender), § 2A3.6 (Aggravated 

Offenses Relating to Registration as a 

Sex Offender), and Appendix A 

(Statutory Index). 

Part C responds to the Frank R. 

Lautenberg Chemical Safety for the 21st 

Century Act, Public Law 114–182 (June 

22, 2016), by amending Appendix A 

(Statutory Index). 

Part D amends § 2G1.3 (Promoting a 

Commercial Sex Act or Prohibited 

Sexual Conduct with a Minor; 

Transportation of Minors to Engage in a 

Commercial Sex Act or Prohibited 

Sexual Conduct; Travel to Engage in 

Commercial Sex Act or Prohibited 

Sexual Conduct with a Minor; Sex 

Trafficking of Children; Use of Interstate 

Facilities to Transport Information 

about a Minor) to clarify how the use of 

a computer enhancement at subsection 

(b)(3) interacts with its correlating 

commentary. 

Part E responds to the Justice for All 

Reauthorization Act of 2016, Public Law 

114–324 (Dec. 16, 2016), by amending 

§ 5D1.3 (Conditions of Supervised 

Release). 

(A) Transnational Drug Trafficking Act 

of 2015 

Synopsis of Proposed Amendment: 

Part A of the proposed amendment 

responds to the Transnational Drug 

Trafficking Act of 2015, Public Law 

114–154 (May 16, 2016). The primary 

purpose of the Act is to enable the 

Department of Justice to target 

extraterritorial drug trafficking activity. 

Among other things, the Act clarified 

the mens rea requirement for offenses 

related to trafficking in counterfeit 

drugs, without changing the statutory 

penalties associated with such offenses. 

The Act amended 18 U.S.C. 2230 

(Trafficking in Counterfeit Goods or 

Services), which prohibits trafficking in 

a range of goods and services, including 

counterfeit drugs. The amended statute 

is currently referenced in Appendix A 

(Statutory Index) of the Guidelines 

Manual to § 2B5.3 (Criminal 

Infringement of Copyright or 

Trademark). 

In particular, the Act made changes 

relating to counterfeit drugs. First, the 

Act amended the penalty provision at 

section 2320, replacing the term 

‘‘counterfeit drug’’ with the phrase 

‘‘drug that uses a counterfeit mark on or 

in connection with the drug.’’ Second, 

the Act revised section 2320(f)(6) to 

define only the term ‘‘drug’’ instead of 

‘‘counterfeit drug.’’ The amended 

provision defines ‘‘drug’’ as ‘‘a drug, as 

defined in section 201 of the Federal 

Food, Drug, and Cosmetic Act (21 U.S.C. 

321).’’ The Act did not amend the 

definition of ‘‘counterfeit mark’’ 

contained in section 2230(f)(1), which 

provides that— 

the term ‘‘counterfeit mark’’ means— 

(A) a spurious mark— 

(i) that is used in connection with 

trafficking in any goods, services, labels, 

patches, stickers, wrappers, badges, emblems, 

medallions, charms, boxes, containers, cans, 

cases, hangtags, documentation, or packaging 

of any type or nature; 

(ii) that is identical with, or substantially 

indistinguishable from, a mark registered on 

the principal register in the United States 

Patent and Trademark Office and in use, 

whether or not the defendant knew such 

mark was so registered; 

(iii) that is applied to or used in connection 

with the goods or services for which the mark 

is registered with the United States Patent 

and Trademark Office, or is applied to or 

consists of a label, patch, sticker, wrapper, 

badge, emblem, medallion, charm, box, 

container, can, case, hangtag, documentation, 

or packaging of any type or nature that is 

designed, marketed, or otherwise intended to 

be used on or in connection with the goods 

or services for which the mark is registered 

in the United States Patent and Trademark 

Office; and 

(iv) the use of which is likely to cause 

confusion, to cause mistake, or to deceive; or 

(B) a spurious designation that is identical 

with, or substantially indistinguishable from, 

a designation as to which the remedies of the 

Lanham Act are made available by reason of 

section 220506 of title 36 . . . . 

Part A of the proposed amendment 

amends § 2B5.3(b)(5) to replace the term 

‘‘counterfeit drug’’ with ‘‘drug that uses 

a counterfeit mark on or in connection 

with the drug.’’ The proposed 

amendment would also amend the 

Commentary to § 2B5.3 to delete the 

‘‘counterfeit drug’’ definition and 

provide that ‘‘drug’’ and ‘‘counterfeit 

mark’’ have the meaning given those 

terms in 18 U.S.C. 2320(f). 

Proposed Amendment 

Section 2B5.3(b)(5) is amended by 

striking ‘‘counterfeit drug’’ and inserting 

‘‘drug that uses a counterfeit mark on or 

in connection with the drug’’. 

The Commentary to § 2B5.3 captioned 

‘‘Application Notes’’ is amended in 

Note 1 by striking the third 

undesignated paragraph as follows: 

‘‘ ‘Counterfeit drug’ has the meaning 

given that term in 18 U.S.C. 2320(f)(6).’’, 

and by inserting after the paragraph 

that begins ‘‘‘Counterfeit military good 

or service’ has the meaning’’ the 

following new paragraph: 

‘‘ ‘Drug’ and ‘counterfeit mark’ have 

the meaning given those terms in 18 

U.S.C. 2320(f).’’. 


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(B) International Megan’s Law To 

Prevent Child Exploitation and Other 

Sexual Crimes Through Advanced 

Notification of Traveling Sex Offenders 

Synopsis of Proposed Amendment: 

Part B of the proposed amendment 

responds to the International Megan’s 

Law to Prevent Child Exploitation and 

Other Sexual Crimes Through Advanced 

Notification of Traveling Sex Offenders 

Act (‘‘International Megan’s Law’’), 

Public Law 114–119 (Feb. 8, 2016). The 

Act added a new notification 

requirement to 42 U.S.C. 16914 

(Information required in [sex offender] 

registration). Section 16914 states that 

sex offenders who are required to 

register under the Sex Offender 

Registration and Notification Act 

(SORNA) must provide certain 

information for inclusion in the sex 

offender registry. Those provisions 

include the offender’s name, Social 

Security number, address of all 

residences, name and address where the 

offender is an employee, the name and 

address where the offender is a student, 

license plate number and description of 

any vehicle. The International Megan’s 

Law added as an additional requirement 

that the sex offender must provide 

‘‘information relating to intended travel 

of the sex offender outside of the United 

States, including any anticipated dates 

and places of departure, arrival or 

return, carrier and flight numbers for air 

travel, destination country and address 

or other contact information therein, 

means and purpose of travel, and any 

other itinerary or other travel-related 

information required by the Attorney 

General.’’ 

The International Megan’s Law also 

added a new criminal offense at 18 

U.S.C. 2250(b) (Failure to register). The 

new subsection (b) provides that 

whoever is required to register under 

SORNA who knowingly fails to provide 

the above described information 

required by SORNA relating to intended 

travel in foreign commerce and who 

engages or attempts to engage in the 

intended travel, is subject to a 10-year 

statutory maximum penalty. Section 

2250 offenses are referenced in 

Appendix A (Statutory Index) to § 2A3.5 

(Failure to Register as a Sex Offender). 

Part B of the proposed amendment 

amends Appendix A (Statutory Index) 

so the new offenses at 18 U.S.C. 2250(b) 

are referenced to § 2A3.5. The proposed 

amendment also brackets the possibility 

of adding a new application note to the 

Commentary to § 2A3.5 providing that 

for purposes of § 2A3.5(b), a defendant 

shall be deemed to be in a ‘‘failure to 

register status’’ during the period in 

which the defendant engaged in 

conduct described in 18 U.S.C. 2250(a) 

or (b). 

Finally, Part B makes clerical changes 

to § 2A3.6 (Aggravated Offenses Relating 

to Registration as a Sex Offender) to 

reflect the redesignation of 18 U.S.C. 

2250(c) by the International Megan’s 

Law. 

Proposed Amendment 

The Commentary to § 2A3.5 captioned 

‘‘Statutory Provision’’ is amended by 

striking ‘‘§ 2250(a)’’ and inserting 

‘‘§ 2250(a), (b)’’. 

[The Commentary to § 2A3.5 

captioned ‘‘Application Notes’’ is 

amended by redesignating Note 2 as 

Note 3, and by inserting the following 

new Note 2: 

‘‘2. Application of Subsection (b)(1).— 

For purposes of subsection (b)(1), a 

defendant shall be deemed to be in a 

‘failure to register status’ during the 

period in which the defendant engaged 

in conduct described in 18 U.S.C. 

2250(a) or (b).’’.] 

Section 2A3.6(a) is amended by 

striking ‘‘§ 2250(c)’’ and inserting 

‘‘§ 2250(d)’’. 

The Commentary to § 2A3.6 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘2250(c)’’ and inserting 

‘‘2250(d)’’. 

The Commentary to § 2A3.6 captioned 

‘‘Application Notes’’ is amended— 

in Note 1 by striking ‘‘Section 

2250(c)’’ and inserting ‘‘Section 

2250(d)’’, and by inserting after ‘‘18 

U.S.C. 2250(a)’’ the following: ‘‘or (b)’’; 

in Note 3 by striking ‘‘§ 2250(c)’’ and 

inserting ‘‘§ 2250(d)’’; 

and in Note 4 by striking ‘‘§ 2250(c)’’ 

and inserting ‘‘§ 2250(d)’’. 

Appendix A (Statutory Index) is 

amended in the line referenced to 18 

U.S.C. 2250(a) by striking ‘‘§ 2250(a)’’ 

and inserting ‘‘§ 2250(a), (b)’’; and in the 

line referenced to 18 U.S.C. 2250(c) by 

striking ‘‘§ 2250(c)’’ and inserting 

‘‘§ 2250(d)’’. 

(C) Frank R. Lautenberg Chemical Safety 

for the 21st Century Act 

Synopsis of Proposed Amendment: 

Part C of the proposed amendment 

responds to the Frank R. Lautenberg 

Chemical Safety for the 21st Century 

Act, Public Law 114–182 (June 22, 

2016). The Act, among other things, 

amended section 16 of the Toxic 

Substances Control Act (15 U.S.C. 2615) 

to add a new subsection that provides 

that any person who knowingly and 

willfully violates certain provisions of 

the Toxic Substances Control Act and 

who knows at the time of the violation 

that the violation places an individual 

in imminent danger of death or bodily 

injury shall be subject to a fine up to 

$250,000, imprisonment of up to 15 

years, or both. 

Part C of the proposed amendment 

amends Appendix A (Statutory Index) 

so that the new provision, 15 U.S.C. 

2615(b)(2), is referenced to § 2Q1.1 

(Knowing Endangerment Resulting 

From Mishandling Hazardous or Toxic 

Substances, Pesticides or Other 

Pollutants), while maintaining the 

reference to § 2Q1.2 (Mishandling of 

Hazardous or Toxic Substances or 

Pesticides; Recordkeeping, Tampering, 

and Falsification; Unlawfully 

Transporting Hazardous Materials in 

Commerce) for 15 U.S.C. 2615(b)(1). 

Proposed Amendment 

Appendix A (Statutory Index) is 

amended— 

in the line referenced to 15 U.S.C. 

2615 by striking ‘‘§ 2615’’ and inserting 

‘‘§ 2615(b)(1)’’; 

and by inserting before the line 

referenced to 15 U.S.C. 6821 the 

following new line reference: 

‘‘15 U.S.C. 2615(b)(2) 2Q1.1’’. 

(D) Use of a Computer Enhancement in 

§ 2G1.3 

Synopsis of Proposed Amendment: 

Part D of the proposed amendment 

clarifies how the use of a computer 

enhancement at § 2G1.3(b)(3) interacts 

with its corresponding commentary at 

Application Note 4. Section 2G1.3 

(Promoting a Commercial Sex Act or 

Prohibited Sexual Conduct with a 

Minor; Transportation of Minors to 

Engage in a Commercial Sex Act or 

Prohibited Sexual Conduct; Travel to 

Engage in Commercial Sex Act or 

Prohibited Sexual Conduct with a 

Minor; Sex Trafficking of Children; Use 

of Interstate Facilities to Transport 

Information about a Minor) applies to 

several offenses involving the 

transportation of a minor for illegal 

sexual activity. Subsection (b)(3) of 

§ 2G1.3 provides a 2-level enhancement 

if— 

the offense involved the use of a computer 

or an interactive computer service to (A) 

persuade, induce, entice, coerce, or facilitate 

the travel of, the minor to engage in 

prohibited sexual conduct; or (B) entice, 

encourage, offer, or solicit a person to engage 

in prohibited sexual conduct with the minor. 

Application Note 4 to § 2G1.3 sets 

forth guidance on this enhancement 

providing as follows: 

Subsection (b)(3) is intended to apply only 

to the use of a computer or an interactive 

computer service to communicate directly 

with a minor or with a person who exercises 

custody, care, or supervisory control of the 

minor. Accordingly, the enhancement in 

subsection (b)(3) would not apply to the use 

of a computer or an interactive computer 


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service to obtain airline tickets for the minor 

from an airline’s Internet site. 

An application issue has arisen as to 

whether Application Note 4, by failing 

to distinguish between the two prongs 

of subsection (b)(3), prohibits 

application of the enhancement where a 

computer was used to solicit a third 

party to engage in prohibited sexual 

conduct with a minor. 

Most courts to have addressed this 

issue have concluded that Application 

Note 4 is inconsistent with the language 

of § 2G1.3(b)(3), and have permitted the 

application of the enhancement for use 

of a computer in third party solicitation 

cases. See, e.g., United States v. Cramer, 

777 F.3d 597, 606 (2d Cir. 2015) (‘‘We 

conclude that Application Note 4 is 

plainly inconsistent with subsection 

(b)(3)(B) . . . . The plain language of 

subsection (b)(3)(B) is clear, and there is 

no indication that the drafters of the 

Guidelines intended to limit this plain 

language through Application Note 4.’’); 

United States v. McMillian, 777 F.3d 

444, 449–50 (7th Cir. 2015) (‘‘[The 

defendant] points out that Application 

Note 4 states that ‘Subsection (b)(3) is 

intended to apply only to the use of a 

computer or an interactive computer 

service to communicate directly with a 

minor or with a person who exercises 

custody, care, or supervisory control of 

the minor.[’] . . . . But the note is 

wrong. The guideline section provides a 

2-level enhancement whenever the 

defendant uses a computer to ‘entice, 

encourage, offer, or solicit a person to 

engage in prohibited sexual conduct 

with the minor’ . . . . When an 

application note clashes with the 

guideline, the guideline prevails.’’); 

United States v. Hill, 783 F.3d 842, 846 

(11th Cir. 2015) (‘‘Because the 

application note is inconsistent with the 

plain language of U.S.S.G. 

§ 2G1.3(b)(3)(B), the plain language of 

the guideline controls.’’); United States 

v. Pringler, 765 F.3d 445, 455 (5th Cir. 

2014) (‘‘[W]e hold that the commentary 

in application note 4 is ‘inconsistent 

with’ Guideline § 2G1.3(b)(3)(B), and we 

therefore follow the plain language of 

the Guideline alone.’’). 

Part D of the proposed amendment 

would amend the Commentary to 

§ 2G1.3 to clarify that the guidance 

contained in Application Note 4 refers 

only to subsection (b)(3)(A) and does 

not control the application of the 

enhancement for use of a computer in 

third party solicitation cases (as 

provided in subsection (b)(3)(B)). 

Proposed Amendment 

The Commentary to § 2G1.3 captioned 

‘‘Application Notes’’ is amended in 

Note 4 by striking ‘‘(b)(3)’’ each place 

such term appears and inserting 

‘‘(b)(3)(A)’’. 

(E) Justice for All Reauthorization Act of 

2016 

Synopsis of Proposed Amendment: 

Part E of the proposed amendment 

responds to the Justice for All 

Reauthorization Act of 2016, Public Law 

114–324 (Dec. 16, 2016). The Act made 

statutory changes to protect the rights of 

crime victims and to address the use of 

DNA and other forensic evidence. 

Among other things, the Act amended 

18 U.S.C. 3583, the statute addressing 

supervised release. Section 3583(d) 

requires a court, when imposing a 

sentence of supervised release, to 

impose certain specified conditions of 

supervised release. The Act amended 

section 3583(d) to require the court to 

include, as one of those conditions, 

‘‘that the defendant make restitution in 

accordance with sections 3663 and 

3663A [of Title 18, United States Code], 

or any other statute authorizing a 

sentence of restitution.’’ 

Part E of the proposed amendment 

amends the ‘‘mandatory’’ condition of 

supervised release set forth in 

subsection (a)(6)(A) of § 5D1.3 

(Conditions of Supervised Release). It 

conforms § 5D1.3(a)(6)(A) to section 

3583(d) as amended by the Justice for 

All Reauthorization Act. 

Proposed Amendment 

Section 5D1.3(a)(6)(A) is amended by 

striking ‘‘18 U.S.C. 2248, 2259, 2264, 

2327, 3663, 3663A, and 3664’’ and 

inserting ‘‘18 U.S.C. 3663 and 3663A, or 

any other statute authorizing a sentence 

of restitution’’. 

6. Marihuana Equivalency 

Synopsis of Proposed Amendment: 

This proposed amendment makes 

technical changes to § 2D1.1 (Unlawful 

Manufacturing, Importing, Exporting, or 

Trafficking (Including Possession with 

Intent to Commit These Offenses); 

Attempt or Conspiracy) to replace the 

term ‘‘marihuana equivalency’’ which is 

used in the Drug Equivalency Tables 

when determining penalties for certain 

controlled substances. 

The Commentary to § 2D1.1 sets forth 

a series of Drug Equivalency Tables. 

These tables provide a conversion factor 

termed ‘‘marihuana equivalency’’ for 

certain controlled substances that is 

used to determine the offense level for 

cases in which the controlled substance 

involved in the offense is not 

specifically listed in the Drug Quantity 

Table, or where there is more than one 

controlled substance involved in the 

offense (whether or not listed in the 

Drug Quantity Table). See § 2D1.1, 

comment. (n.8). The Drug Equivalency 

Tables are separated by drug type and 

schedule. 

In a case involving a controlled 

substance that is not specifically 

referenced in the Drug Quantity Table, 

the base offense level is determined by 

using the Drug Equivalency Tables to 

convert the quantity of the controlled 

substance involved in the offense to its 

marihuana equivalency, then finding 

the offense level in the Drug Quantity 

Table that corresponds to that quantity 

of marihuana. In a case involving more 

than one controlled substance, each of 

the drugs is converted into its 

marihuana equivalency, the converted 

quantities are added, and the aggregate 

quantity is used to find the offense level 

in the Drug Quantity Table. 

The Commission received comment 

expressing concern that the term 

‘‘marihuana equivalency’’ is misleading 

and results in confusion for individuals 

not fully versed in the guidelines. In 

particular, some commenters suggested 

that the Commission should replace 

‘‘marihuana equivalency’’ with another 

term. 

The proposed amendment would 

amend § 2D1.1 to replace ‘‘marihuana 

equivalency’’ as the conversion factor 

for determining penalties for controlled 

substances that are not specifically 

referenced in the Drug Quantity Table or 

when combining differing controlled 

substances, with a new value termed 

‘‘converted drug weight.’’ Specifically, 

the proposed amendment would add the 

new conversion factor to all provisions 

of the Drug Quantity Table at § 2D1.1(c). 

In addition, the proposed amendment 

would change the title of the ‘‘Drug 

Equivalency Tables’’ to ‘‘Drug 

Conversion Tables,’’ and revise the 

commentary to § 2D1.1 to change all 

references to marihuana as a conversion 

factor and replace it with the new value. 

All changes set forth in the proposed 

amendment are not intended as a 

substantive change in policy for § 2D1.1. 

Proposed Amendment 

Section 2D1.1(c)(1) is amended by 

striking the period at the end of the line 

referenced to Flunitrazepam and 

inserting a semicolon, and by adding at 

the end the following: 

‘‘• 90,000 KG or more of Converted 

Drug Weight.’’. 

Section 2D1.1(c)(2) is amended by 

striking the period at the end of the line 

referenced to Flunitrazepam and 

inserting a semicolon, and by adding at 

the end the following: 

‘‘• At least 30,000 KG but less than 

90,000 KG of Converted Drug Weight.’’. 

Section 2D1.1(c)(3) is amended by 

striking the period at the end of the line 


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Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices 40663 

referenced to Flunitrazepam and 

inserting a semicolon, and by adding at 

the end the following: 

‘‘• At least 10,000 KG but less than 

30,000 KG of Converted Drug Weight.’’. 

Section 2D1.1(c)(4) is amended by 

striking the period at the end of the line 

referenced to Flunitrazepam and 

inserting a semicolon, and by adding at 

the end the following: 

‘‘• At least 3,000 KG but less than 

10,000 KG of Converted Drug Weight.’’. 

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

striking the period at the end of the line 

referenced to Flunitrazepam and 

inserting a semicolon, and by adding at 

the end the following: 

‘‘• At least 1,000 KG but less than 

3,000 KG of Converted Drug Weight.’’. 

Section 2D1.1(c)(6) is amended by 

striking the period at the end of the line 

referenced to Flunitrazepam and 

inserting a semicolon, and by adding at 

the end the following: 

‘‘• At least 700 KG but less than 1,000 

KG of Converted Drug Weight.’’. 

Section 2D1.1(c)(7) is amended by 

striking the period at the end of the line 

referenced to Flunitrazepam and 

inserting a semicolon, and by adding at 

the end the following: 

‘‘• At least 400 KG but less than 700 

KG of Converted Drug Weight.’’. 

Section 2D1.1(c)(8) is amended by 

striking the period at the end of the line 

referenced to Flunitrazepam and 

inserting a semicolon, and by adding at 

the end the following: 

‘‘• At least 100 KG but less than 400 

KG of Converted Drug Weight.’’. 

Section 2D1.1(c)(9) is amended by 

striking the period at the end of the line 

referenced to Flunitrazepam and 

inserting a semicolon, and by adding at 

the end the following: 

‘‘• At least 80 KG but less than 100 

KG of Converted Drug Weight.’’. 

Section 2D1.1(c)(10) is amended by 

striking the period at the end of the line 

referenced to Flunitrazepam and 

inserting a semicolon, and by adding at 

the end the following: 

‘‘• At least 60 KG but less than 80 KG 

of Converted Drug Weight.’’. 

Section 2D1.1(c)(11) is amended by 

striking the period at the end of the line 

referenced to Flunitrazepam and 

inserting a semicolon, and by adding at 

the end the following: 

‘‘• At least 40 KG but less than 60 KG 

of Converted Drug Weight.’’. 

Section 2D1.1(c)(12) is amended by 

striking the period at the end of the line 

referenced to Flunitrazepam and 

inserting a semicolon, and by adding at 

the end the following: 

‘‘• At least 20 KG but less than 40 KG 

of Converted Drug Weight.’’. 

Section 2D1.1(c)(13) is amended by 

striking the period at the end of the line 

referenced to Flunitrazepam and 

inserting a semicolon, and by adding at 

the end the following: 

‘‘• At least 10 KG but less than 20 KG 

of Converted Drug Weight.’’. 

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

striking the period at the end of the line 

referenced to Schedule IV substances 

(except Flunitrazepam) and inserting a 

semicolon, and by adding at the end the 

following: 

‘‘• At least 5 KG but less than 10 KG 

of Converted Drug Weight.’’. 

Section 2D1.1(c)(15) is amended by 

striking the period at the end of the line 

referenced to Schedule IV substances 

(except Flunitrazepam) and inserting a 

semicolon, and by adding at the end the 

following: 

‘‘• At least 2.5 KG but less than 5 KG 

of Converted Drug Weight.’’. 

Section 2D1.1(c)(16) is amended by 

striking the period at the end of the line 

referenced to Schedule V substances 

and inserting a semicolon, and by 

adding at the end the following: 

‘‘• At least 1 KG but less than 2.5 KG 

of Converted Drug Weight.’’. 

Section 2D1.1(c)(17) is amended by 

striking the period at the end of the line 

referenced to Schedule V substances 

and inserting a semicolon, and by 

adding at the end the following: 

‘‘• Less than 1 KG of Converted Drug 

Weight.’’. 

The annotation to § 2D1.1(c) 

captioned ‘‘Notes to Drug Quantity 

Table’’ is amended by inserting at the 

end the following new Note (J): 

‘‘(J) The term ‘Converted Drug 

Weight,’ for purposes of this guideline, 

refers to a nominal reference 

designation that is to be used as a 

conversion factor in the Drug 

Conversion Tables set forth in the 

Commentary below, to determine the 

offense level for controlled substances 

that are not specifically referenced in 

the Drug Quantity Table or when 

combining differing controlled 

substances.’’. 

The Commentary to § 2D1.1 captioned 

‘‘Application Notes’’ is amended— 

in Note 6 by striking ‘‘marihuana 

equivalency’’ and inserting ‘‘converted 

drug weight’’ and by inserting after ‘‘the 

most closely related controlled 

substance referenced in this guideline.’’ 

the following: ‘‘See Application Note 

8.’’; 

in the heading of Note 8 by striking 

‘‘Drug Equivalency’’ and inserting ‘‘Drug 

Conversion’’; 

in Note 8(A) by striking ‘‘Drug 

Equivalency Tables’’ both places such 

term appears and inserting ‘‘Drug 

Conversion Tables’’; by striking ‘‘to 

convert the quantity of the controlled 

substance involved in the offense to its 

equivalent quantity of marihuana’’ and 

inserting ‘‘to find the converted drug 

weight of the controlled substance 

involved in the offense’’; by striking 

‘‘Find the equivalent quantity of 

marihuana’’ and inserting ‘‘Find the 

corresponding converted drug weight’’; 

by striking ‘‘Use the offense level that 

corresponds to the equivalent quantity 

of marihuana’’ and inserting ‘‘Use the 

offense level that corresponds to the 

converted drug weight determined 

above’’; by striking ‘‘an equivalent 

quantity of 5 kilograms of marihuana’’ 

and inserting ‘‘5 kilogram of converted 

drug weight’’; and by striking ‘‘the 

equivalent quantity of marihuana would 

be 500 kilograms’’ and inserting ‘‘the 

converted drug weight would be 500 

kilograms’’; 

in Note 8(B) by striking ‘‘Drug 

Equivalency Tables’’ each place such 

term appears and inserting ‘‘Drug 

Conversion Tables’’; by striking 

‘‘convert each of the drugs to its 

marihuana equivalent’’ and inserting 

‘‘convert each of the drugs to its 

converted drug weight’’; by striking 

‘‘For certain types of controlled 

substances, the marihuana 

equivalencies’’ and inserting ‘‘For 

certain types of controlled substances, 

the converted drug weights assigned’’; 

by striking ‘‘e.g., the combined 

equivalent weight of all Schedule V 

controlled substances shall not exceed 

2.49 kilograms of marihuana’’ and 

inserting ‘‘e.g., the combined converted 

weight of all Schedule V controlled 

substances shall not exceed 2.49 

kilograms of converted drug weight’’; by 

striking ‘‘determine the marihuana 

equivalency for each schedule 

separately’’ and inserting ‘‘determine 

the converted drug weight for each 

schedule separately’’; and by striking 

‘‘Then add the marihuana equivalencies 

to determine the combined marihuana 

equivalency’’ and inserting ‘‘Then add 

the converted drug weights to determine 

the combined converted drug weight’’; 

in Note 8(C)(i) by striking ‘‘of 

marihuana’’ each place such term 

appears and inserting ‘‘of converted 

drug weight’’; and by striking ‘‘The total 

is therefore equivalent to 95 kilograms’’ 

and inserting ‘‘The total therefore 

converts to 95 kilograms’’; 

in Note 8(C)(ii) by striking the 

following: 

‘‘The defendant is convicted of selling 

500 grams of marihuana (Level 6) and 

10,000 units of diazepam (Level 6). The 

diazepam, a Schedule IV drug, is 

equivalent to 625 grams of marihuana. 

The total, 1.125 kilograms of marihuana, 

has an offense level of 8 in the Drug 

Quantity Table.’’, 

and inserting the following: 


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40664 Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices 

‘‘The defendant is convicted of selling 

500 grams of marihuana (Level 6) and 

10,000 units of diazepam (Level 6). The 

amount of marihuana converts to 500 

grams of converted drug weight. The 

diazepam, a Schedule IV drug, converts 

to 625 grams of converted drug weight. 

The total, 1.125 kilograms of converted 

drug weight, has an offense level of 8 in 

the Drug Quantity Table.’’; 

in Note 8(C)(iii) by striking ‘‘is 

equivalent’’ both places such term 

appears and inserting ‘‘converts’’; by 

striking ‘‘of marihuana’’ each place such 

term appears and inserting ‘‘of 

converted drug weight’’; and by striking 

‘‘The total is therefore equivalent’’ and 

inserting ‘‘The total therefore converts’’; 

in Note 8(C)(iv) by striking 

‘‘marihuana equivalency’’ each place 

such term appears and inserting 

‘‘converted drug weight’’; by striking 

‘‘76 kilograms of marihuana’’ and 

inserting ‘‘76 kilograms’’; by striking 

‘‘79.99 kilograms of marihuana’’ both 

places such term appears and inserting 

‘‘79.99 kilograms of converted drug 

weight’’; by striking ‘‘equivalent 

weight’’ each place such term appears 

and inserting ‘‘converted weight’’; by 

striking ‘‘9.99 kilograms of marihuana’’ 

and inserting ‘‘9.99 kilograms’’; and by 

striking ‘‘2.49 kilograms of marihuana’’ 

and inserting ‘‘2.49 kilograms’’; 

and in Note 8(D)— 

in the heading, by striking ‘‘Drug 

Equivalency’’ and inserting ‘‘Drug 

Conversion’’; 

under the heading relating to 

Schedule I or II Opiates, by striking the 

heading as follows: 

‘‘Schedule I or II Opiates*’’, 

and inserting the following new 

heading: 

‘‘Schedule I or II 

Opiates*.

Converted Drug 

Weight’’; 

and by striking ‘‘of marihuana’’ each 

place such term appears; 

under the heading relating Cocaine 

and Other Schedule I and II Stimulants 

(and their immediate precursors), by 

striking the heading as follows: 

‘‘Cocaine and Other Schedule I and II 

Stimulants (and their immediate 

precursors)*’’, 

and inserting the following new 

heading: 

‘‘Cocaine and Other 

Schedule I and II 

Stimulants (and 

their immediate 

precursors)*.

Converted Drug 

Weight’’; 

and by striking ‘‘of marihuana’’ each 

place such term appears; 

under the heading relating to LSD, 

PCP, and Other Schedule I and II 

Hallucinogens (and their immediate 

precursors), by striking the heading as 

follows: 

‘‘LSD, PCP, and Other Schedule I and 

II Hallucinogens (and their immediate 

precursors)*’’, 

and inserting the following new 

heading: 

‘‘LSD, PCP, and 

Other Schedule I 

and II 

Hallucinogens 

(and their immediate precursors)*.

Converted Drug 

Weight’’; 

and by striking ‘‘of marihuana’’ each 

place such term appears; 

under the heading relating to 

Schedule I Marihuana, by striking the 

heading as follows: 

‘‘Schedule I Marihuana’’, 

and inserting the following new 

heading: 

‘‘Schedule I Marihuana.Converted Drug 

Weight’’; 

and by striking ‘‘of marihuana’’ each 

place such term appears; 

under the heading relating to 

Flunitrazepam, by striking the heading 

as follows: 

‘‘Flunitrazepam**’’, 

and inserting the following new 

heading: 

‘‘Flunitrazepam** .... Converted Drug 

Weight’’; 

and by striking ‘‘of marihuana’’; 

under the heading relating to 

Schedule I or II Depressants (except 

gamma-hydroxybutyric acid), by 

striking the heading as follows: 

‘‘Schedule I or II Depressants (except 

gamma-hydroxybutyric acid)’’, 

and inserting the following new 

heading: 

‘‘Schedule I or II Depressants (except 

gamma-hydroxybutyric acid).

Converted Drug 

Weight’’; 

and by striking ‘‘of marihuana’’; 

under the heading relating to Gammahydroxybutyric Acid, by striking the 

heading as follows: 

‘‘Gamma-hydroxybutyric Acid’’, 

and inserting the following new 

heading: 

‘‘Gamma-hydroxybutyric Acid.Converted Drug 

Weight’’; 

and by striking ‘‘of marihuana’’; 

under the heading relating to 

Schedule III Substances (except 

ketamine), by striking the heading as 

follows: 

‘‘Schedule III Substances (except 

ketamine)***’’, 

and inserting the following new 

heading: 

‘‘Schedule III Substances (except 

ketamine)***.

Converted Drug 

Weight’’; 

by striking ‘‘1 gm of marihuana’’ and 

inserting ‘‘1 gm’’; by striking 

‘‘equivalent weight’’ and inserting 

‘‘converted weight’’; and by striking 

‘‘79.99 kilograms of marihuana’’ and 

inserting ‘‘79.99 kilograms of converted 

drug weight’’; 

under the heading relating to 

Ketamine, by striking the heading as 

follows: 

‘‘Ketamine’’, 

and inserting the following new 

heading: 

‘‘Ketamine ................. Converted Drug 

Weight’’; 

and by striking ‘‘of marihuana’’; 

under the heading relating to 

Schedule IV Substances (except 

flunitrazepam), by striking the heading 

as follows: 

‘‘Schedule IV Substances (except 

flunitrazepam)*****’’, 

and inserting the following new 

heading: 

‘‘Schedule IV Substances (except 

flunitrazepam) 

*****.

Converted Drug 

Weight’’; 

by striking ‘‘0.0625 gm of marihuana’’ 

and inserting ‘‘0.0625 gm’’; by striking 

‘‘equivalent weight’’ and inserting 

‘‘converted weight’’; and by striking 

‘‘9.99 kilograms of marihuana’’ and 

inserting ‘‘9.99 kilograms of converted 

drug weight’’; 

under the heading relating to 

Schedule V Substances, by striking the 

heading as follows: 

‘‘Schedule V Substances******’’, 

and inserting the following new 

heading: 

‘‘Schedule V Substances******.Converted Drug 

Weight’’; 

by striking ‘‘0.00625 gm of 

marihuana’’ and inserting ‘‘0.00625 

gm’’; by striking ‘‘equivalent weight’’ 

and inserting ‘‘converted weight’’; and 

by striking ‘‘2.49 kilograms of 

marihuana’’ and inserting ‘‘2.49 

kilograms of converted drug weight’’; 

under the heading relating to List I 

Chemicals (relating to the manufacture 

of amphetamine or methamphetamine), 

by striking the heading as follows: 

‘‘List I Chemicals (relating to the 

manufacture of amphetamine or 

methamphetamine)*******’’, 

and inserting the following new 

heading: 

‘‘List I Chemicals (relating to the manufacture of amphetamine or methamphetamine)*******.Converted Drug 

Weight’’; 

and by striking ‘‘of marihuana’’ each 

place such term appears; 

under the heading relating to Date 

Rape Drugs (except flunitrazepam, GHB, 


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or ketamine), by striking the heading as 

follows: 

‘‘Date Rape Drugs (except 

flunitrazepam, GHB, or ketamine)’’, 

and inserting the following new 

heading: 

‘‘Date Rape Drugs 

(except 

flunitrazepam, 

GHB, or ketamine).

Converted Drug 

Weight’’; 

and by striking ‘‘marihuana’’ each 

place such term appears; 

and in the text before the heading 

relating to Measurement Conversion 

Table, by striking ‘‘To facilitate 

conversions to drug equivalencies’’ and 

inserting ‘‘To facilitate conversions to 

converted drug weights’’. 

7. Technical Amendment 

Synopsis of Amendment: This 

proposed amendment makes various 

technical changes to the Guidelines 

Manual. 

Part A of the proposed amendment 

makes certain clarifying changes to two 

guidelines. First, the proposed 

amendment amends Chapter One, Part 

A, Subpart 1(4)(b) (Departures) to 

provide an explanatory note addressing 

the fact that § 5K2.19 (Post-Sentencing 

Rehabilitative Efforts) was deleted by 

Amendment 768, effective November 1, 

2012. Second, the proposed amendment 

makes minor clarifying changes to 

Application Note 2(A) to § 2B1.1 (Theft, 

Property Destruction, and Fraud), to 

make clear that, for purposes of 

subsection (a)(1)(A), an offense is 

‘‘referenced to this guideline’’ if § 2B1.1 

is the applicable Chapter Two guideline 

specifically referenced in Appendix A 

(Statutory Index) for the offense of 

conviction. 

Part B of the proposed amendment 

makes technical changes in §§ 2Q1.3 

(Mishandling of Other Environmental 

Pollutants; Recordkeeping, Tampering, 

and Falsification), 2R1.1 (Bid-Rigging, 

Price-Fixing or Market-Allocation 

Agreements Among Competitors), 4A1.2 

(Definitions and Instructions for 

Computing Criminal History), and 4B1.4 

(Armed Career Criminal), to correct title 

references to § 4A1.3 (Departures Based 

on Inadequacy of Criminal History 

Category (Policy Statement)). 

Part C of the proposed amendment 

makes clerical changes to— 

(1) the Commentary to § 1B1.13 

(Reduction in Term of Imprisonment 

Under 18 U.S.C. 3582(c)(1)(A) (Policy 

Statement)), to correct a typographical 

error by inserting a missing word in 

Application Note 4; 

(2) subsection (d)(6) to § 2D1.11 

(Unlawfully Distributing, Importing, 

Exporting or Possessing a Listed 

Chemical; Attempt or Conspiracy), to 

correct a typographical error in the line 

referencing Pseudoephedrine; 

(3) subsection (e)(2) to § 2D1.11 

(Unlawfully Distributing, Importing, 

Exporting or Possessing a Listed 

Chemical; Attempt or Conspiracy), to 

correct a punctuation mark under the 

heading relating to List I Chemicals; 

(4) the Commentary to § 2M2.1 

(Destruction of, or Production of 

Defective, War Material, Premises, or 

Utilities) captioned ‘‘Statutory 

Provisions,’’ to add a missing section 

symbol and a reference to Appendix A 

(Statutory Index); 

(5) the Commentary to § 2Q1.1 

(Knowing Endangerment Resulting 

From Mishandling Hazardous or Toxic 

Substances, Pesticides or Other 

Pollutants) captioned ‘‘Statutory 

Provisions,’’ to add a missing reference 

to 42 U.S.C. 7413(c)(5) and a reference 

to Appendix A (Statutory Index); 

(6) the Commentary to § 2Q1.2 

(Mishandling of Hazardous or Toxic 

Substances or Pesticides; 

Recordkeeping, Tampering, and 

Falsification; Unlawfully Transporting 

Hazardous Materials in Commerce) 

captioned ‘‘Statutory Provisions,’’ to 

add a specific reference to 42 U.S.C. 

7413(c)(1)–(4); 

(7) the Commentary to § 2Q1.3 

(Mishandling of Other Environmental 

Pollutants; Recordkeeping, Tampering, 

and Falsification) captioned ‘‘Statutory 

Provisions,’’ to add a specific reference 

to 42 U.S.C. 7413(c)(1)–(4); 

(8) subsection (a)(4) to § 5D1.3. 

(Conditions of Supervised Release), to 

change an inaccurate reference to 

‘‘probation’’ to ‘‘supervised release’’; 

and 

(9) the lines referencing ‘‘18 U.S.C. 

371’’ and ‘‘18 U.S.C. 1591’’ in Appendix 

A (Statutory Index), to rearrange the 

order of certain Chapter Two guidelines 

references to place them in proper 

numerical order. 

(A) Clarifying Changes 

Proposed Amendment 

Chapter One, Part A is amended— 

in Subpart 1(4)(b) (Departures) by 

inserting an asterisk after ‘‘§ 5K2.19 

(Post-Sentencing Rehabilitative 

Efforts)’’, and by inserting after the first 

paragraph the following new paragraph: 

‘‘*Note: Section 5K2.19 (PostSentencing Rehabilitative Efforts) was 

deleted by Amendment 768, effective 

November 1, 2012. (See USSG App. C, 

amendment 768.)’’; 

and in the note at the end of Subpart 

1(4)(d) (Probation and Split Sentences) 

by striking ‘‘Supplement to Appendix 

C’’ and inserting ‘‘USSG App. C’’. 

The Commentary to § 2B1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 2(A)(i) by striking ‘‘as determined 

under the provisions of § 1B1.2 

(Applicable Guidelines) for the offense 

of conviction’’ and inserting the 

following: ‘‘specifically referenced in 

Appendix A (Statutory Index) for the 

offense of conviction, as determined 

under the provisions of § 1B1.2 

(Applicable Guidelines)’’. 

(B) Title References to § 4A1.3 

Proposed Amendment 

The Commentary to § 2Q1.3 captioned 

‘‘Application Notes’’ is amended in 

Note 8 by striking ‘‘Adequacy of 

Criminal History Category’’ and 

inserting ‘‘Departures Based on 

Inadequacy of Criminal History 

Category (Policy Statement)’’. 

The Commentary to § 2R1.1 captioned 

‘‘Application Notes’’ is amended in 

Note 7 by striking ‘‘Adequacy of 

Criminal History Category’’ and 

inserting ‘‘Departures Based on 

Inadequacy of Criminal History 

Category (Policy Statement)’’. 

Section 4A1.2 is amended in 

subsections (h), (i), and (j) by striking 

‘‘Adequacy of Criminal History 

Category’’ each place such term appears 

and inserting ‘‘Departures Based on 

Inadequacy of Criminal History 

Category (Policy Statement)’’. 

The Commentary to § 4A1.2 captioned 

‘‘Application Notes’’ is amended in 

Notes 6 and 8 by striking ‘‘Adequacy of 

Criminal History Category’’ both places 

such term appears and inserting 

‘‘Departures Based on Inadequacy of 

Criminal History Category (Policy 

Statement)’’. 

The Commentary to § 4B1.4 captioned 

‘‘Background’’ is amended by striking 

‘‘Adequacy of Criminal History 

Category’’ and inserting ‘‘Departures 

Based on Inadequacy of Criminal 

History Category (Policy Statement)’’. 

(C) Clerical Changes 

Proposed Amendment 

The Commentary to § 1B1.13 

captioned ‘‘Application Notes’’ is 

amended in Note 4 by striking ‘‘factors 

set forth 18 U.S.C. 3553(a)’’ and 

inserting ‘‘factors set forth in 18 U.S.C. 

3553(a)’’. 

Section 2D1.11 is amended— 

in subsection (d)(6) by striking 

‘‘Pseuodoephedrine’’ and inserting 

‘‘Pseudoephedrine’’; 

and in subsection (e)(2), under the 

heading relating to List I Chemicals, by 

striking the period at the end and 

inserting a semicolon. 

The Commentary to § 2M2.1 

captioned ‘‘Statutory Provisions’’ is 

amended by striking ‘‘§ 2153’’ and 

inserting ‘‘§§ 2153’’, and by inserting at 


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40666 Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices 

the end the following: ‘‘For additional 

statutory provision(s), see Appendix A 

(Statutory Index).’’. 

The Commentary to § 2Q1.1 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘42 U.S.C. 6928(e)’’ and 

inserting ‘‘42 U.S.C. 6928(e), 

7413(c)(5)’’, and by inserting at the end 

the following: ‘‘For additional statutory 

provision(s), see Appendix A (Statutory 

Index).’’. 

The Commentary to § 2Q1.2 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘7413’’ and inserting 

‘‘7413(c)(1)–(4)’’. 

The Commentary to § 2Q1.3 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘7413’’ and inserting 

‘‘7413(c)(1)–(4)’’. 

Section 5D1.3(a)(4) is amended by 

striking ‘‘release on probation’’ and 

inserting ‘‘release on supervised 

release’’. 

Appendix A (Statutory Index) is 

amended in the line referenced to 18 

U.S.C. 371 by rearranging the guidelines 

to place them in proper numerical 

order; and in the line referencing 18 

U.S.C. 1591 by rearranging the 

guidelines to place them in proper 

numerical order. 

[FR Doc. 2017–18076 Filed 8–24–17; 8:45 am] 

BILLING CODE 2210–40–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

[OMB Control No. 2900–0067] 

Agency Information Collection Activity 

Under OMB Review: Application for 

Automobile or Other Conveyance and 

Adaptive Equipment 

AGENCY: Veterans Benefits 

Administration, Department of Veterans 

Affairs. 

ACTION: Notice. 

SUMMARY: In compliance with the 

Paperwork Reduction Act (PRA) of 

1995, this notice announces that the 

Veterans Benefits Administration, 

Department of Veterans Affairs, will 

submit the collection of information 

abstracted below to the Office of 

Management and Budget (OMB) for 

review and comment. The PRA 

submission describes the nature of the 

information collection and its expected 

cost and burden and it includes the 

actual data collection instrument. 

DATES: Comments must be submitted on 

or before September 25, 2017. 

ADDRESSES: Submit written comments 

on the collection of information through 

www.Regulations.gov, or to Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, Attn: 

VA Desk Officer; 725 17th St. NW., 

Washington, DC 20503 or sent through 

electronic mail to oira_submission@

omb.eop.gov. Please refer to ‘‘OMB 

Control No. 2900–0067’’ in any 

correspondence. 

FOR FURTHER INFORMATION CONTACT: 

Cynthia Harvey-Pryor, Enterprise 

Records Service (005R1B), Department 

of Veterans Affairs, 810 Vermont 

Avenue NW., Washington, DC 20420, 

(202) 461–5870 or email cynthia.harveypryor@va.gov. Please refer to ‘‘OMB 

Control No. 2900–0067’’ in any 

correspondence. 

SUPPLEMENTARY INFORMATION: 

Authority: 44 U.S.C. 3501–21. 

Title: Application for Automobile or 

Other Conveyance and Adaptive 

Equipment (Under 38 U.S.C. 3901– 

3904) (VA Form 21–4502). 

OMB Control Number: 2900–0067. 

Type of Review: Extension of a 

currently approved collection. 

Abstract: VA Form 21–4502 is used to 

gather the necessary information to 

determine if a veteran or serviceperson 

is entitled to an automobile allowance 

and adaptive equipment. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. The Federal Register 

Notice with a 60-day comment period 

soliciting comments on this collection 

of information was published at 82 FR 

113 on June 14, 2017, page 27328. 

Affected Public: Individuals or 

Households. 

Estimated Annual Burden: 388. 

Estimated Average Burden per 

Respondent: 15 minutes. 

Frequency of Response: One time. 

Estimated Number of Respondents: 

1,552. 

By direction of the Secretary. 

Cynthia Harvey-Pryor, 

Department Clearance Officer, Office of 

Quality and Compliance, Department of 

Veterans Affairs. 

[FR Doc. 2017–17982 Filed 8–24–17; 8:45 am] 

BILLING CODE 8320–01–P 


sradovich on DSK3GMQ082PROD with NOTICES