II Calendar No. 320 113th CONGRESS 2d Session S. 1410 IN THE SENATE OF THE UNITED STATES July 31, 2013 Mr. Durbin (for himself, Mr. Lee , Mr. Leahy , Mr. Whitehouse , Mr. Paul , Mr. King , Mr. Heinrich , Mr. Levin , Mr. Flake , Mr. Cruz , Mrs. Gillibrand , Mr. Cardin , Mr. Murphy , Mr. Udall of New Mexico , and Ms. Landrieu ) introduced the following bill; which was read twice and referred to the Committee on the Judiciary March 11, 2014 Reported by Mr. Leahy , with an amendment Strike out all after the enacting clause and insert the part printed in italic A BILL To focus limited Federal resources on the most serious offenders.

1. Short title This Act may be cited as the Smarter Sentencing Act of 2013 . 2. Applicability of statutory minimums Section 3553(f)(1) of title 18, United States Code, is amended by striking defendant and all that follows through point and inserting criminal history category for the defendant is not higher than category 2 . 3. Clarification of applicability of the Fair Sentencing Act (a) Definition of covered offense In this section, the term covered offense means a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 ( Public Law 111–220 ; 124 Stat. 2372), that was committed before August 3, 2010. (b) Defendants previously sentenced A court that imposed a sentence for a covered offense, may, on motion of the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court, impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111–220; 124 Stat. 2372) were in effect at the time the covered offense was committed. (c) Limitations No court shall entertain a motion made under this section to reduce a sentence if the sentence was previously imposed or previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010 ( Public Law 111–220 ; 124 Stat. 2372) or if a motion made under this section to reduce the sentence was previously denied. Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section. 4. Sentencing modifications for certain drug offenses (a) Controlled Substances Act Section 401(b)(1) of the Controlled Substances Act ( 21 U.S.C. 841(b)(1) ) is amended— (1) in subparagraph (A), in the flush text following clause (viii)— (A) by striking 10 years or more and inserting 5 years or more ; and (B) by striking such person shall be sentenced to a term of imprisonment which may not be less than 20 years and and inserting such person shall be sentenced to a term of imprisonment which may not be less than 10 years and ; and (2) in subparagraph (B), in the flush text following clause (viii)— (A) by striking 5 years and inserting 2 years ; and (B) by striking not be less than 10 years and inserting not be less than 5 years . (b) Controlled Substances Import and Export Act Section 1010(b) of the Controlled Substances Import and Export Act ( 21 U.S.C. 960(b) ) is amended— (1) in paragraph (1), in the flush text following subparagraph (H)— (A) by striking not less than 10 years and inserting not less than 5 years ; and (B) by striking such person shall be sentenced to a term of imprisonment of not less than 20 years and inserting such person shall be sentenced to a term of imprisonment of not less than 10 years ; and (2) in paragraph (2), in the flush text following subparagraph (H)— (A) by striking 5 years and inserting 2 years ; and (B) by striking 10 years and inserting 5 years . 5. Directive to the Sentencing Commission (a) Directive to Sentencing Commission Pursuant to its authority under section 994(p) of title 28, United States Code, and in accordance with this section, the United States Sentencing Commission shall review and amend, if appropriate, its guidelines and its policy statements applicable to persons convicted of an offense under section 401 of the Controlled Substances Act ( 21 U.S.C. 841 ) or section 1010 of the Controlled Substances Import and Export Act (21 U.S.C. 960) to ensure that the guidelines and policy statements are consistent with the amendments made by sections 2 and 4 of this Act and reflect the intent of Congress that such penalties be decreased in accordance with the amendments made by section 4 of this Act. (b) Considerations In carrying out this section, the United States Sentencing Commission shall consider— (1) the mandate of the United States Sentencing Commission, under section 994(g) of title 28, United States Code, to formulate the sentencing guidelines in such a way as to minimize the likelihood that the Federal prison population will exceed the capacity of the Federal prisons ; (2) the findings and conclusions of the United States Sentencing Commission in its October 2011 report to Congress entitled, Mandatory Minimum Penalties in the Federal Criminal Justice System; (3) the fiscal implications of any amendments or revisions to the sentencing guidelines or policy statements made by the United States Sentencing Commission; (4) the relevant public safety concerns involved in the considerations before the United States Sentencing Commission; (5) the intent of Congress that penalties for violent and serious drug traffickers who present public safety risks remain appropriately severe; and (6) the need to reduce and prevent racial disparities in Federal sentencing. (c) Emergency authority The United States Sentencing Commission shall— (1) promulgate the guidelines, policy statements, or amendments provided for in this Act as soon as practicable, and in any event not later than 120 days after the date of enactment of this Act, in accordance with the procedure set forth in section 21(a) of the Sentencing Act of 1987 ( 28 U.S.C. 994 note), as though the authority under that Act had not expired; and (2) pursuant to the emergency authority provided under paragraph (1), make such conforming amendments to the Federal sentencing guidelines as the Commission determines necessary to achieve consistency with other guideline provisions and applicable law. 6. Report by Attorney General Not later than 6 months after the date of enactment of this Act, the Attorney General shall submit to the Committees on the Judiciary of the House of Representatives and the Senate a report outlining how the reduced expenditures on Federal corrections and the cost savings resulting from this Act will be used to help reduce overcrowding in the Federal Bureau of Prisons, help increase proper investment in law enforcement and crime prevention, and help reduce criminal recidivism, thereby increasing the effectiveness of Federal criminal justice spending.

1. Short title This Act may be cited as the Smarter Sentencing Act of 2014 . 2. Applicability of statutory minimums Section 3553(f)(1) of title 18, United States Code, is amended to read as follows: (1) the defendant— (A) does not have more than 1 criminal history point, as determined under the sentencing guidelines; or (B) (i) does not have more than 2 criminal history points, as determined under the sentencing guidelines; (ii) has no prior convictions for any offense that has as an element the use, attempted use, or threatened use of physical force against the person of another; and (iii) has not been convicted of— (I) a firearm offense under section 922 or 924; (II) a sex offense (as defined in section 111 of the Adam Walsh Child Protection and Safety Act of 2006 ( 42 U.S.C. 16911 )); (III) a Federal crime of terrorism (as defined in section 2332b(g)(5)); (IV) a racketeering offense under section 1962; or (V) conspiring to use and invest illicit drug profits under section 414 of the Controlled Substances Act ( 21 U.S.C. 854 ); . 3. Clarification of applicability of the Fair Sentencing Act (a) Definition of covered offense In this section, the term covered offense means a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 ( Public Law 111–220 ; 124 Stat. 2372), that was committed before August 3, 2010. (b) Defendants previously sentenced A court that imposed a sentence for a covered offense, may, on motion of the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court, impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111–220; 124 Stat. 2372) were in effect at the time the covered offense was committed. (c) Limitations No court shall entertain a motion made under this section to reduce a sentence if the sentence was previously imposed or previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010 ( Public Law 111–220 ; 124 Stat. 2372) or if a motion made under this section to reduce the sentence was previously denied. Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section. 4. Sentencing modifications for certain drug offenses (a) Controlled Substances Act Section 401(b)(1) of the Controlled Substances Act ( 21 U.S.C. 841(b)(1) ) is amended— (1) in subparagraph (A), in the flush text following clause (viii)— (A) by striking 10 years or more and inserting 5 years or more ; and (B) by striking such person shall be sentenced to a term of imprisonment which may not be less than 20 years and and inserting such person shall be sentenced to a term of imprisonment which may not be less than 10 years and ; and (2) in subparagraph (B), in the flush text following clause (viii)— (A) by striking 5 years and inserting 2 years ; and (B) by striking not be less than 10 years and inserting not be less than 5 years . (b) Controlled Substances Import and Export Act Section 1010(b) of the Controlled Substances Import and Export Act ( 21 U.S.C. 960(b) ) is amended— (1) in paragraph (1), in the flush text following subparagraph (H)— (A) by striking not less than 10 years and inserting not less than 5 years ; and (B) by striking such person shall be sentenced to a term of imprisonment of not less than 20 years and inserting such person shall be sentenced to a term of imprisonment of not less than 10 years ; and (2) in paragraph (2), in the flush text following subparagraph (H)— (A) by striking 5 years and inserting 2 years ; and (B) by striking 10 years and inserting 5 years . 5. Directive to the Sentencing Commission (a) Directive to Sentencing Commission Pursuant to its authority under section 994(p) of title 28, United States Code, and in accordance with this section, the United States Sentencing Commission shall review and amend, if appropriate, its guidelines and its policy statements applicable to persons convicted of an offense under section 401 of the Controlled Substances Act ( 21 U.S.C. 841 ) or section 1010 of the Controlled Substances Import and Export Act (21 U.S.C. 960) to ensure that the guidelines and policy statements are consistent with the amendments made by sections 2 and 4 of this Act and reflect the intent of Congress that such penalties be decreased in accordance with the amendments made by section 4 of this Act. (b) Considerations In carrying out this section, the United States Sentencing Commission shall consider— (1) the mandate of the United States Sentencing Commission, under section 994(g) of title 28, United States Code, to formulate the sentencing guidelines in such a way as to minimize the likelihood that the Federal prison population will exceed the capacity of the Federal prisons ; (2) the findings and conclusions of the United States Sentencing Commission in its October 2011 report to Congress entitled, Mandatory Minimum Penalties in the Federal Criminal Justice System; (3) the fiscal implications of any amendments or revisions to the sentencing guidelines or policy statements made by the United States Sentencing Commission; (4) the relevant public safety concerns involved in the considerations before the United States Sentencing Commission; (5) the intent of Congress that severe sentences for violent, repeat, and serious drug traffickers who present public safety risks remain in place; and (6) the need to reduce and prevent racial disparities in Federal sentencing. (c) Emergency authority The United States Sentencing Commission shall— (1) promulgate the guidelines, policy statements, or amendments provided for in this Act as soon as practicable, and in any event not later than 120 days after the date of enactment of this Act, in accordance with the procedure set forth in section 21(a) of the Sentencing Act of 1987 ( 28 U.S.C. 994 note), as though the authority under that Act had not expired; and (2) pursuant to the emergency authority provided under paragraph (1), make such conforming amendments to the Federal sentencing guidelines as the Commission determines necessary to achieve consistency with other guideline provisions and applicable law. 6. Report by Attorney General Not later than 6 months after the date of enactment of this Act, the Attorney General shall submit to the Committees on the Judiciary of the House of Representatives and the Senate a report outlining how the reduced expenditures on Federal corrections and the cost savings resulting from this Act will be used to help reduce overcrowding in the Federal Bureau of Prisons, help increase proper investment in law enforcement and crime prevention, and help reduce criminal recidivism, thereby increasing the effectiveness of Federal criminal justice spending. 7. Report on Federal criminal offenses (a) Definitions In this section— (1) the term criminal regulatory offense means a Federal regulation that is enforceable by a criminal penalty; and (2) the term criminal statutory offense means a criminal offense under a Federal statute. (b) Report on criminal statutory offenses Not later than 1 year after the date of enactment of this Act, the Attorney General shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report, which shall include— (1) a list of all criminal statutory offenses, including a list of the elements for each criminal statutory offense; and (2) for each criminal statutory offense listed under paragraph (1)— (A) the potential criminal penalty for the criminal statutory offense; (B) the number of prosecutions for the criminal statutory offense brought by the Department of Justice each year for the 15-year period preceding the date of enactment of this Act; and (C) the mens rea requirement for the criminal statutory offense. (c) Report on criminal regulatory offenses (1) Reports Not later than 1 year after the date of enactment of this Act, the head of each Federal agency described in paragraph (2) shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report, which shall include— (A) a list of all criminal regulatory offenses enforceable by the agency; and (B) for each criminal regulatory offense listed under subparagraph (A)— (i) the potential criminal penalty for a violation of the criminal regulatory offense; (ii) the number of violations of the criminal regulatory offense referred to the Department of Justice for prosecution in each of the years during the 15-year period preceding the date of enactment of this Act; and (iii) the mens rea requirement for the criminal regulatory offense. (2) Agencies described The Federal agencies described in this paragraph are the Department of Agriculture, the Department of Commerce, the Department of Education, the Department of Energy, the Department of Health and Human Services, the Department of Homeland Security, the Department of Housing and Urban Development, the Department of the Interior, the Department of Labor, the Department of Transportation, the Department of the Treasury, the Commodity Futures Trading Commission, the Consumer Product Safety Commission, the Equal Employment Opportunity Commission, the Export-Import Bank of the United States, the Farm Credit Administration, the Federal Communications Commission, the Federal Deposit Insurance Corporation, the Federal Election Commission, the Federal Labor Relations Authority, the Federal Maritime Commission, the Federal Mine Safety and Health Review Commission, the Federal Trade Commission, the National Labor Relations Board, the National Transportation Safety Board, the Nuclear Regulatory Commission, the Occupational Safety and Health Review Commission, the Office of Compliance, the Postal Regulatory Commission, the Securities and Exchange Commission, the Securities Investor Protection Corporation, the Environmental Protection Agency, the Small Business Administration, the Federal Housing Finance Agency, and the Office of Government Ethics. (d) Index Not later than 2 years after the date of enactment of this Act— (1) the Attorney General shall establish a publically accessible index of each criminal statutory offense listed in the report required under subsection (b) and make the index available and freely accessible on the website of the Department of Justice; and (2) the head of each agency described in subsection (c)(2) shall establish a publically accessible index of each criminal regulatory offense listed in the report required under subsection (c)(1) and make the index available and freely accessible on the website of the agency. (e) Rule of construction Nothing in this section shall be construed to require or authorize appropriations. 8. Sexual assault offenses Chapter 109A of title 18, United States Code, is amended— (1) in section 2241— (A) in subsection (a), in the flush text following paragraph (2), by inserting not less than 5 after term of years ; and (B) in subsection (b), in the flush text following paragraph (2)(B), by inserting not less than 5 after term of years ; (2) in section 2242, in the flush text following paragraph (2)(B), by inserting not less than 5 after term of years ; (3) in section 2243— (A) in subsection (a), in the flush text following paragraph (2), by inserting not less than 5 years and after imprisoned ; and (B) in subsection (b), in the flush text following paragraph (2), by inserting not less than 5 years and after imprisoned ; and (4) by amending section 2245 to read as follows: 2245. Offenses resulting in death A person who— (1) in the course of an offense under this chapter or section 1591, 2251, 2251A, or 2260 murders an individual, shall be punished by death or imprisoned for any term of years not less than 5 years or for life; and (2) in the course of an offense under section 2421, 2422, 2423, or 2425 murders an individual, shall be punished by death or imprisoned for any term of years or for life. . 9. Domestic violence offenses Section 2261(b) of title 18, United States Code, is amended by striking paragraphs (1), (2), and (3) and inserting the following: (1) if death of the victim results— (A) in the case of a violation of this section, for any term of years not less than 10 or for life; and (B) in the case of a violation of section 2261A, for life or any term of years; (2) if permanent disfigurement or life threatening bodily injury to the victim results— (A) in the case of a violation of this section, for not more than 25 years; and (B) in the case of a violation of section 2261A, for not more than 20 years; (3) if serious bodily injury to the victim results or if the offender uses a dangerous weapon during the offense— (A) in the case of a violation of this section, for not more than 15 years; and (B) in the case of a violation of section 2261A, for not more than 10 years; . 10. Mandatory minimum sentences for certain offenses relating to the provision of arms to terrorists or proliferators of weapons of mass destruction (a) International Emergency Economic Powers Act Section 206 of the International Emergency Economic Powers Act ( 50 U.S.C. 1705 ) is amended— (1) in subsection (c), by striking A person and inserting Subject to subsection (d), a person ; and (2) by adding at the end the following: (d) Minimum term of imprisonment for certain acts relating to the provision of arms to terrorists or proliferators of weapons of mass destruction (1) In general A natural person who willfully commits, willfully attempts to commit, or willfully conspires to commit, or aids or abets in the commission of, an unlawful act described in paragraph (2) shall, upon conviction, be imprisoned for a term of not less than 5 years. (2) Unlawful acts described An unlawful act described in this paragraph is an unlawful act described in subsection (a) that involves— (A) the provision of defense articles or defense services to— (i) a state sponsor of terrorism; (ii) an organization designated as a foreign terrorist organization under section 219(a) of the Immigration and Nationality Act ( 8 U.S.C. 1189(a) ); or (iii) a person on the list of specially designated nationals and blocked persons maintained by the Office of Foreign Assets Control of the Department of the Treasury for an activity relating to support for international terrorism or the proliferation of weapons of mass destruction; or (B) the exportation of goods or services to any person in connection with a program of a foreign country or foreign person to develop weapons of mass destruction. (3) Definitions In this subsection: (A) Defense article; defense service The terms defense article and defense service have the meanings given those terms in section 47 of the Arms Export Control Act ( 22 U.S.C. 2794 ). (B) State sponsor of terrorism The term state sponsor of terrorism means any country the government of which the Secretary of State has determined has repeatedly provided support for acts of international terrorism pursuant to— (i) section 6(j)(1)(A) of the Export Administration Act of 1979 ( 50 U.S.C. App. 2405(j)(1)(A) ) (as in effect pursuant to this Act); (ii) section 40(d) of the Arms Export Control Act ( 22 U.S.C. 2780(d) ); or (iii) section 620A(a) of the Foreign Assistance Act of 1961 ( 22 U.S.C. 2371(a) ). . (b) Trading with the Enemy Act Section 5 of the Trading with the Enemy Act (50 U.S.C. App.) is amended by adding at the end the following: (c) Minimum term of imprisonment for certain acts relating to the provision of arms to terrorists or proliferators of weapons of mass destruction (1) In general A natural person who willfully commits, willfully attempts to commit, or willfully conspires to commit, or aids or abets in the commission of, an unlawful act described in paragraph (2) shall, upon conviction, be imprisoned for a term of not less than 5 years. (2) Unlawful acts described An unlawful act described in this paragraph is an act in violation of the provisions of this Act or any license, order, regulation, or prohibition issued under this Act that involves— (A) the provision of defense articles or defense services to— (i) a state sponsor of terrorism; (ii) an organization designated as a foreign terrorist organization under section 219(a) of the Immigration and Nationality Act ( 8 U.S.C. 1189(a) ); or (iii) a person on the list of specially designated nationals and blocked persons maintained by the Office of Foreign Assets Control of the Department of the Treasury for an activity relating to support for international terrorism or the proliferation of weapons of mass destruction; or (B) the exportation of goods or services to any person in connection with a program of a foreign country or foreign person to develop weapons of mass destruction. (3) Definitions In this subsection: (A) Defense article; defense service The terms defense article and defense service have the meanings given those terms in section 47 of the Arms Export Control Act ( 22 U.S.C. 2794 ). (B) State sponsor of terrorism The term state sponsor of terrorism has the meaning given that term in section 206(d)(3) of the International Emergency Economic Powers Act. . (c) Arms Export Control Act Section 38(c) of the Arms Export Control Act ( 22 U.S.C. 2778(c) ) is amended by striking shall upon conviction be fined and all that follows and inserting the following: “shall upon conviction— (1) subject to paragraph (2), be fined for each violation not more than $1,000,000 or imprisoned not more than 20 years, or both; and (2) be imprisoned not less than 5 years if the violation involves the export of defense articles or defense services to— (A) a state sponsor of terrorism (as defined in section 206(d)(3) of the International Emergency Economic Powers Act); (B) an organization designated as a foreign terrorist organization under section 219(a) of the Immigration and Nationality Act ( 8 U.S.C. 1189(a) ); (C) a person on the list of specially designated nationals and blocked persons maintained by the Office of Foreign Assets Control of the Department of the Treasury for an activity relating to support for international terrorism or the proliferation of weapons of mass destruction; or (D) any person in connection with a program of a foreign country or foreign person to develop weapons of mass destruction. . (d) Smuggling from the United States Section 554 of title 18, United States Code, is amended— (1) in subsection (a), by striking shall be fined and all that follows and inserting the following: “shall— (1) subject to paragraph (2), be fined under this title, imprisoned not more than 10 years, or both; and (2) be imprisoned not less than 5 years if the merchandise, article, or object— (A) is a defense article and was exported or sent, or was attempted to be exported or sent, to— (i) a state sponsor of terrorism; (ii) an organization designated as a foreign terrorist organization under section 219(a) of the Immigration and Nationality Act ( 8 U.S.C. 1189(a) ); or (iii) a person on the list of specially designated nationals and blocked persons maintained by the Office of Foreign Assets Control of the Department of the Treasury for an activity relating to support for international terrorism or the proliferation of weapons of mass destruction; or (B) was exported or sent, or was attempted to be exported or sent, to any person in connection with a program of a foreign country or foreign person to develop weapons of mass destruction. ; and (2) by amending subsection (b) to read as follows: (b) Definitions In this section: (1) Defense article; defense service The terms defense article and defense service have the meanings given those terms in section 47 of the Arms Export Control Act ( 22 U.S.C. 2794 ). (2) State sponsor of terrorism The term state sponsor of terrorism has the meaning given that term in section 206(d)(3) of the International Emergency Economic Powers Act. .

March 11, 2014 Reported with an amendment