Sentencing Guidelines for United States Courts

Federal RegisterDec 26, 2023

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UNITED STATES SENTENCING COMMISSION

Sentencing Guidelines for United States Courts

AGENCY:

United States Sentencing Commission.

ACTION:

Notice and request for public comment and 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:

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 February 22, 2024. Any public comment received after the close of the comment period may not be considered.

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 website at

www.ussc.gov.

ADDRESSES:

There are two methods for submitting public comment.

Electronic Submission of Comments.

Comments may be submitted electronically via the Commission's Public Comment Submission Portal at

https://comment.ussc.gov.

Follow the online instructions for submitting comments.

Submission of Comments by Mail.

Comments may be submitted by mail to the following address: United States Sentencing Commission, One Columbus Circle NE, Suite 2-500, Washington, DC 20002-8002, Attention: Public Affairs—Proposed Amendments.

FOR FURTHER INFORMATION CONTACT:

Jennifer Dukes, Senior Public Affairs Specialist, (202) 502-4597.

SUPPLEMENTARY INFORMATION:

The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for federal courts pursuant to 28 U.S.C. 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. 994(o) and submits guideline amendments to the Congress not later than the first day of May 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

USSC Rules of Practice and Procedure 2.2, 4.4. In contrast, the affirmative vote of at least four voting members is required to promulgate an amendment and submit it to Congress.

See id.

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 proposed amendment to § 2B1.1 (Theft, Property Destruction, and Fraud) that would create Notes to the loss table in § 2B1.1(b)(1) and move some of the general rules relating to loss from the commentary to the guideline itself as part of the Notes, as well as make corresponding changes to the Commentary of certain guidelines that refer to the loss rules in § 2B1.1, and a related issue for comment.

(2) A two-part proposed amendment relating to the provisions of § 4A1.2 (Definitions and Instructions for Computing Criminal History) that cover criminal history calculations for offenses committed prior to age eighteen and on § 5H1.1 (Age (Policy Statement)), including (A) three options for amending § 4A1.2 to change how sentences for offenses committed prior to age eighteen are considered in the calculation of a defendant's criminal history score, and related issues for comment; and (B) an amendment to § 5H1.1 to address unique sentencing considerations relating to youthful individuals, and related issues for comment.

(3) A proposed amendment to the

Guidelines Manual

that includes three options to address the use of acquitted conduct for purposes of determining a sentence, and related issues for comment.

(4) A two-part proposed amendment addressing certain circuit conflicts involving § 2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) and § 2K2.4 (Use of Firearm, Armor-Piercing Ammunition, or Explosive During or in Relation to Certain Crimes), including (A) two options for amending § 2K2.1(b)(4)(B)(i) to address a circuit conflict concerning whether a serial number must be illegible in order to apply the 4-level increase for a firearm that “had an altered or obliterated serial number,” and a related issue for comment; and (B) amendments to the Commentary to § 2K2.4 to address a circuit conflict concerning whether subsection (c) of § 3D1.2 (Groups of Closely Related Counts) permits grouping of a firearms count under 18 U.S.C. 922(g) with a drug trafficking count, where the defendant also has a separate count under 18 U.S.C. 924(c) based on the drug trafficking count, and a related issue for comment.

(5) A multi-part proposed amendment in response to recently enacted legislation and miscellaneous guideline issues, including (A) amendments to Appendix A (Statutory Index) and the Commentary to § 2B1.5 (Theft of, Damage to, or Destruction of, Cultural Heritage Resources or Paleontological Resources; Unlawful Sale, Purchase, Exchange, Transportation, or Receipt of Cultural Heritage Resources or Paleontological Resources) in response to the Safeguard Tribal Objects of Patrimony (“STOP”) Act of 2021, Public Law 117-258 (2022), and a related issue for comment; (B) amendments to Appendix A and § 2M5.1 (Evasion of

Export Controls; Financial Transactions with Countries Supporting International Terrorism) in response to the Export Control Reform Act of 2018, enacted as part of the John McCain National Defense Authorization Act for Fiscal Year 2019, Public Law 115-232 (2018), and to concerns raised by the Department of Justice and the Disruptive Technology Strike Force (an interagency collaboration between the Department of Justice's National Security Division and the Department of Commerce's Bureau of Industry and Security), and related issues for comment; (C) an amendment to subsection (b)(2)(B) of § 2S1.3 (Structuring Transactions to Evade Reporting Requirements; Failure to Report Cash or Monetary Transactions; Failure to File Currency and Monetary Instrument Report; Knowingly Filing False Reports; Bulk Cash Smuggling; Establishing or Maintaining Prohibited Accounts) to reflect the enhanced penalty applicable to offenses under 31 U.S.C. 5322 and 5336; (D) amendments to Appendix A and the Commentary to § 2R1.1 (Bid-Rigging, Price-Fixing or Market-Allocation Agreements Among Competitors) to replace references to 15 U.S.C. 3(b) with references to 15 U.S.C. 3(a); (E) two options for amending § 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) to address a miscellaneous issue regarding the application of the base offense levels at subsections (a)(1)-(a)(4); and (F) two options for amending § 4C1.1 (Adjustment for Certain Zero-Point Offenders) to address concerns raised by the Department of Justice relating to the scope of the definition of “sex offense” in subsection (b)(2).

(6) A two-part proposed amendment to make technical and other non-substantive changes to the

Guidelines Manual,

including (A) technical and conforming changes relating to § 4C1.1 (Adjustment for Certain Zero-Point Offenders); and (B) technical and clerical changes to several guidelines and their corresponding commentaries to add missing headings to application notes; provide stylistic consistency in how subdivisions are designated; provide consistency in the use of capitalization; correct certain references and typographical errors; and update an example in a Commentary that references 18 U.S.C. 924(c), which was amended by the First Step Act of 2018, Public Law 115-391 (Dec. 21, 2018).

(7) A two-part proposed amendment to the

Guidelines Manual,

including (A) request for public comment on whether any changes should be made to the

Guidelines Manual

relating to the three-step process set forth in § 1B1.1 (Application Instructions) and the use of departures and policy statements relating to specific personal characteristics; and (B) amendments that would restructure the

Guidelines Manual

to simplify both (1) the current three-step process utilized in determining a sentence that is “sufficient, but not greater than necessary,” and (2) existing guidance in the

Guidelines Manual

regarding a court's consideration of the individual circumstances of the defendant as well as certain offense characteristics.

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 website at

www.ussc.gov.

In addition, as required by 5 U.S.C. 553(b)(4), plain-language summaries of the proposed amendments are available at

https://www.ussc.gov/guidelines/amendments/proposed-2024-amendments-federal-sentencing-guidelines.

Authority:

28 U.S.C. 994(a), (o), (p), (x); USSC Rules of Practice and Procedure 2.2, 4.3, 4.4.

Carlton W. Reeves,

Chair.

Proposed Amendments to the Sentencing Guidelines, Policy Statements, and Official Commentary

1. Rule for Calculating Loss

Synopsis of Proposed Amendment:

This proposed amendment is a result of the Commission's continued study of the

Guidelines Manual

to address case law concerning the validity and enforceability of guideline commentary.

See

U.S. Sent'g Comm'n, “Notice of Final Priorities,” 88 FR 60536 (Sept. 1, 2023).

Stinson

United States,

508 U.S. 36, 38 (1993), the Supreme Court held that commentary “that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” In recent years, however, the deference afforded to various guideline commentary provisions has been debated, particularly since

Kisor

Wilkie,

139 S. Ct. 2400, 2415 (2019), which limited deference to agency interpretation of regulations to situations in which the regulation is “genuinely ambiguous.” Applying

Kisor,

the Third Circuit recently held that Application Note 3(A) of the Commentary to § 2B1.1 (Theft, Property Destruction, and Fraud) is not entitled to deference.

United States

Banks,

55 F.4th 246 (3d Cir. 2022).

Section 2B1.1 includes a loss table that increases the offense level based on the amount of loss resulting from an offense. USSG § 2B1.1(b)(1). Application Note 3(A) of the Commentary to § 2B1.1 provides a general rule for courts to use to calculate loss for purposes of the loss table. USSG § 2B1.1, comment. (n.3(A)). Under the rule, “loss is the greater of actual loss or intended loss.”

Id.

The commentary then defines the terms “actual loss,” “intended loss,” “pecuniary harm,” and “reasonably foreseeable pecuniary harm.” USSG § 2B1.1, comment. (n.3(A)(i)-(iv)). The commentary also provides that “[t]he court shall use the gain that resulted from the offense as an alternative measure of loss only if there is a loss but it reasonably cannot be determined.” USSG § 2B1.1, comment. (n.3(B)).

Banks,

the Third Circuit held that “the term `loss' is unambiguous in the context of § 2B1.1”—meaning “actual loss”—and that “[b]ecause the commentary expands the definition of `loss' by explaining that generally `loss

is the greater of actual loss or intended loss,' we accord the commentary no weight.”

Banks,

55 F.4th at 253, 258. To date, the Third Circuit is the only appellate court to reach this conclusion. However, the loss calculations for defendants in this circuit are now computed differently than in circuits that continue to apply Application Note 3(A).

The Commission estimates that approximately one-fifth of individuals sentenced under § 2B1.1 in fiscal year 2022 were sentenced using intended loss. This estimate is based on the Commission's review of a 30 percent representative sample of the 3,811 individuals sentenced under § 2B1.1 in fiscal year 2022 with a known, non-zero loss amount. Intended loss was used for sentencing in 19.8 percent of cases in the sample. Using these findings to extrapolate to all § 2B1.1 cases with a loss amount, the Commission estimates that approximately 750 individuals were sentenced using intended loss in fiscal year 2022. Of those 750 individuals, approximately 50 were sentenced in the Third Circuit prior to the

Banks

decision.

This proposed amendment would address the decision from the Third Circuit regarding the validity and enforceability of Application Note 3(A) of the Commentary to § 2B1.1 to ensure consistent loss calculation across circuits.

The proposed amendment would create Notes to the loss table in § 2B1.1(b)(1) and move the general rule establishing loss as the greater of actual loss or intended loss from the commentary to the guideline itself as part of the Notes. The proposed amendment would also move the rule providing for the use of gain as an alternative measure of loss, as well as the definitions of “actual loss,” “intended loss,” “pecuniary harm,” and “reasonably foreseeable pecuniary harm” from the commentary to the Notes. In addition, the proposed amendment would make corresponding changes to the Commentary to §§ 2B2.3 (Trespass), 2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right; Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials; Conspiracy to Defraud by Interference with Governmental Functions), and 8A1.2 (Application Instructions—Organizations), which calculate loss by reference to the Commentary to § 2B1.1.

An issue for comment is also provided.

Proposed Amendment:

Section 2B1.1(b)(1) is amended by inserting the following at the end:

“

*Notes to Table:

(A)

Loss.

—Loss is the greater of actual loss or intended loss.

(B)

Gain.

—The court shall use the gain that resulted from the offense as an alternative measure of loss only if there is a loss but it reasonably cannot be determined.

(i) `Actual loss' means the reasonably foreseeable pecuniary harm that resulted from the offense.

(ii) `Intended loss' (I) means the pecuniary harm that the defendant purposely sought to inflict; and (II) includes intended pecuniary harm that would have been impossible or unlikely to occur (

e.g.,

as in a government sting operation, or an insurance fraud in which the claim exceeded the insured value).

(iii) `Pecuniary harm' means harm that is monetary or that otherwise is readily measurable in money. Accordingly, pecuniary harm does not include emotional distress, harm to reputation, or other non-economic harm.

(iv) `

Reasonably foreseeable pecuniary harm'

means pecuniary harm that the defendant knew or, under the circumstances, reasonably should have known, was a potential result of the offense.”.

The Commentary to § 2B1.1 captioned “Application Notes” is amended in Note 3—by striking subparagraphs (A) and (B) as follows:

“(A)

General Rule.

—Subject to the exclusions in subdivision (D), loss is the greater of actual loss or intended loss.

(i)

Actual Loss.

—`Actual loss' means the reasonably foreseeable pecuniary harm that resulted from the offense.

(ii)

Intended Loss.

—`Intended loss' (I) means the pecuniary harm that the defendant purposely sought to inflict; and (II) includes intended pecuniary harm that would have been impossible or unlikely to occur (

e.g.,

as in a government sting operation, or an insurance fraud in which the claim exceeded the insured value).

(iii)

Pecuniary Harm.

—`Pecuniary harm' means harm that is monetary or that otherwise is readily measurable in money. Accordingly, pecuniary harm does not include emotional distress, harm to reputation, or other non-economic harm.

(iv)

Reasonably Foreseeable Pecuniary Harm.

—For purposes of this guideline, `reasonably foreseeable pecuniary harm' means pecuniary harm that the defendant knew or, under the circumstances, reasonably should have known, was a potential result of the offense.

(v)

Rules of Construction in Certain Cases.

—In the cases described in subdivisions (I) through (III), reasonably foreseeable pecuniary harm shall be considered to include the pecuniary harm specified for those cases as follows:

(I)

Product Substitution Cases.

—In the case of a product substitution offense, the reasonably foreseeable pecuniary harm includes the reasonably foreseeable costs of making substitute transactions and handling or disposing of the product delivered, or of retrofitting the product so that it can be used for its intended purpose, and the reasonably foreseeable costs of rectifying the actual or potential disruption to the victim's business operations caused by the product substitution.

(II)

Procurement Fraud Cases.

—In the case of a procurement fraud, such as a fraud affecting a defense contract award, reasonably foreseeable pecuniary harm includes the reasonably foreseeable administrative costs to the government and other participants of repeating or correcting the procurement action affected, plus any increased costs to procure the product or service involved that was reasonably foreseeable.

(III)

Offenses Under 18 U.S.C. 1030.

—In the case of an offense under 18 U.S.C. 1030, actual loss includes the following pecuniary harm, regardless of whether such pecuniary harm was reasonably foreseeable: any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other damages incurred because of interruption of service.

(B)

Gain.

—The court shall use the gain that resulted from the offense as an alternative measure of loss only if there is a loss but it reasonably cannot be determined.”;

inserting the following new subparagraph (A):

“(A)

Rules of Construction in Certain Cases.

—In the cases described in clauses (i) through (iii), reasonably foreseeable pecuniary harm shall be considered to include the pecuniary harm specified for those cases as follows:

(i)

Product Substitution Cases.

retrofitting the product so that it can be used for its intended purpose, and the reasonably foreseeable costs of rectifying the actual or potential disruption to the victim's business operations caused by the product substitution.

(ii)

Procurement Fraud Cases.

(iii)

Offenses Under 18 U.S.C. 1030.

and by redesignating subparagraphs (C), (D), (E), and (F) as subparagraphs (B), (C), (D), and (E), respectively.

The Commentary to § 2B2.3 captioned “Application Notes” is amended in Note 2 by striking “the Commentary to § 2B1.1 (Theft, Property Destruction, and Fraud)” and inserting “§ 2B1.1 (Theft, Property Destruction, and Fraud) and the Commentary to § 2B1.1”.

The Commentary to § 2C1.1 captioned “Application Notes” is amended in Note 3 by striking “Application Note 3 of the Commentary to § 2B1.1 (Theft, Property Destruction, and Fraud)” and inserting “§ 2B1.1 (Theft, Property Destruction, and Fraud) and Application Note 3 of the Commentary to § 2B1.1”.

The Commentary to § 8A1.2 captioned “Application Notes” is amended in Note 3 by striking “the Commentary to § 2B1.1 (Theft, Property Destruction, and Fraud)” and inserting “§ 2B1.1 (Theft, Property Destruction, and Fraud) and the Commentary to § 2B1.1”.

Issue for Comment:

1. As part of the Commission's priority to address case law concerning the validity and enforceability of guideline commentary, the proposed amendment would address the Third Circuit's decision regarding the deference to be given to Application Note 3(A) of the Commentary to § 2B1.1 (Theft, Property Destruction, and Fraud).

See

United States

Banks,

55 F.4th 246 (3d Cir. 2022). The Commission's current priorities also include the “[e]xamination of the

Guidelines Manual,

including exploration of ways to simplify the guidelines and possible consideration of amendments that might be appropriate.” See U.S. Sent'g Comm'n, “Notice of Final Priorities,” 88 FR 60536 (Sept. 1, 2023). As part of that simplification priority, the Commission is considering conducting a comprehensive examination of § 2B1.1 during an upcoming amendment cycle.

The Commission seeks comment on whether it should adopt this proposed amendment addressing Application Note 3(A) of the Commentary to § 2B1.1 during this amendment cycle, or whether it should defer making changes to § 2B1.1 and its commentary until a future amendment cycle that may include a comprehensive examination of § 2B1.1.

2. Youthful Individuals

Synopsis of Proposed Amendment:

In September 2023, the Commission identified as one of its policy priorities for the amendment cycle ending May 1, 2024, an examination of the treatment of youthful offenders and offenses involving youths under the

Guidelines Manual,

including possible consideration of amendments that might be appropriate. U.S. Sent'g Comm'n, “Notice of Final Priorities,” 88 FR 60536 (Sept. 1, 2023). As part of this priority, the Commission is examining two provisions related to youthful individuals: (1) subsection (d) of § 4A1.2 (Definitions and Instructions for Computing Criminal History), which covers criminal history calculations for offenses committed prior to age eighteen; and (2) § 5H1.1 (Age (Policy Statement)), a departure provision related to age, including youth. Section 4A1.2(d) is unchanged from the original guideline enacted in 1987. Section 5H1.1 was last amended in 2010.

This proposed amendment contains two parts (Part A and Part B). The Commission is considering whether to promulgate either or both parts, as they are not mutually exclusive. Part A addresses the computation of criminal history points for offenses committed prior to age eighteen. Part B addresses the sentencing of youthful individuals.

Computing Criminal History for Offenses Committed Prior to Age Eighteen

Under Chapter Four, Part A (Criminal History), certain sentences for offenses committed prior to age eighteen are considered in the calculation of a defendant's criminal history score. The guidelines distinguish between an “adult sentence” in which the defendant committed the offense before age eighteen and was convicted as an adult, and a “juvenile sentence” resulting from a juvenile adjudication.

See

USSG § 4A1.2(d).

The Commentary to § 4A1.2 (Definitions and Instructions for Computing Criminal History) provides that, to avoid disparities from jurisdiction to jurisdiction in the age at which a defendant is considered a “juvenile,” the rules set forth in § 4A1.2(d) apply to all offenses committed prior to age eighteen.

See

USSG § 4A1.2, comment. (n.7). The Commentary also states that “[a]ttempting to count every juvenile adjudication would have the potential for creating large disparities due to the differential availability of records,” and thus only certain offenses committed prior to age eighteen are counted.

Id.

Courts assign three criminal history points if a defendant was convicted as an adult for an offense committed before age eighteen and received a sentence of imprisonment exceeding one year and one month, if the sentence was imposed, or the defendant was incarcerated, within fifteen years of the commencement of the instant offense.

See

USSG § 4A1.2(d)(1), (e). Courts assign two criminal history points for “each adult or juvenile sentence to confinement of at least sixty days if the defendant was released from such confinement within five years of his commencement of the instant offense.” USSG § 4A1.2(d)(2)(A). One criminal history point is added for “each adult or juvenile sentence imposed within five years of the defendant's commencement of the instant offense not covered in (A).” USSG § 4A1.2(d)(2)(B).

Juvenile offenses are also addressed in two other places in § 4A1.2. First, § 4A1.2(c)(2) provides a list of certain offenses that are “never counted” for purposes of the criminal history score, including “juvenile status offenses and truancy.” Second, § 4A1.2(f) provides that diversionary dispositions resulting from a finding or admission of guilt, or a plea of nolo contendere, are counted even if a conviction is not formally entered, but “diversion from juvenile court is not counted.”

With this proposed amendment, the Commission seeks to strike the right balance between various considerations related to the sentencing of youthful individuals, including difficulties in obtaining supporting documentation for juvenile adjudications and in assessing “confinement,” recent brain development research, demographic

disparities, higher rearrest rates for younger individuals, and protection of the public.

Juvenile Proceedings in General

Juvenile adjudications involve some procedural safeguards akin to adult criminal proceedings (

e.g.,

right to counsel, privilege against self-incrimination), but not all criminal constitutional protections apply. For example, in most states, juveniles are not entitled to a jury trial, although some states provide juveniles with a jury trial upon request. Additionally, “[i]n 2019, there were 24 states with statutes allowing delinquency adjudication hearings to be generally open to the public,” while “[i]n the remaining states and the District of Columbia the public is restricted from attending delinquency adjudication hearings,” with possible limited exceptions. Charles Puzzanchera et al., Nat'l Ctr. for Juv. Just., Youth and the Juvenile Justice System: 2022 National Report 93 (2022). Dispositions of confinement and residential placement may also differ in manner and purpose from adult sentences of incarceration. Residential placement facilities vary in their degree of security and security features, with some having a “secure prison-like environment” and others “a more open (even home-like) setting.”

Id.

at 91. Almost all states and the District of Columbia have statutes or case law providing that a juvenile adjudication shall not be deemed a criminal conviction or impose any civil disabilities that ordinarily result from an adult conviction, though many states permit the use of juvenile adjudications to enhance a subsequent sentence.

With respect to records of juvenile proceedings, practices vary by state. Many states allow for sealing or expungement, though few states seal or expunge such records automatically, instead requiring a motion.

See, e.g.,

Riya Saha Shah, et al., Juv. L. Ctr., A National Review of State Laws on Confidentiality, Sealing and Expungement 36-39 (2014). States often include various eligibility requirements for sealing or expungement, such as that (1) a certain period of time has elapsed since the case concluded or the juvenile completed any sentence of supervision, (2) the person has not been convicted of certain types of offenses, such as drug or sex offenses or offenses against persons, and/or (3) the individual has reached a certain age.

Id.

at 32-35.

The determination of whether a person under the age of eighteen may be tried as an adult varies by jurisdiction and often may be based on certain offense types or a finding that the individual would not benefit from the juvenile court. In 2019, 47 states allowed juvenile court judges to make the transfer decision, 27 states had statutory provisions that mandated transfer to criminal court for certain cases, and 14 states gave prosecutors discretion on where to file charges. Puzzanchera et al.,

supra,

at 95-97. States vary with respect to the minimum age at which an individual can be transferred to criminal court to be tried as an adult; where specified, the minimum age ranges from ten to sixteen.

Id.

at 97-99. For juveniles who had been tried as adults, 35 states had “once an adult, always an adult” provisions requiring that they be prosecuted in criminal court for any subsequent offense.

Id.

at 95-96.

Sentencing of Youthful Individuals

Chapter Five, Part H (Specific Offender Characteristics) sets forth policy statements addressing the relevance of certain specific offender characteristics in sentencing. Specifically, § 5H1.1 (Age (Policy Statement)) provides, in relevant part, that “[a]ge (including youth) may be relevant in determining whether a departure is warranted, if considerations based on age, individually or in combination with other offender characteristics, are present to an unusual degree and distinguish the case from the typical cases covered by the guidelines.”

Studies on Age and Brain Development

Research has shown that brain development continues until the mid-20s on average, potentially contributing to impulsive actions and reward-seeking behavior, although a more precise age would have to be determined on an individualized basis.

See, e.g.,

U.S. Sent'g Comm'n, Youthful Offenders in the Federal System 6-7 (2017); Daniel Romer et al.,

Beyond Stereotypes of Adolescent Risk Taking: Placing the Adolescent Brain in Developmental Context,

27 Developmental Cognitive Neuroscience 19 (2017); Laurence Steinberg & Grace Icenogle,

Using Developmental Science to Distinguish Adolescents and Adults Under the Law,

1 Ann. Rev. Developmental Psych. 21 (2019).

Studies on Age and Rearrest Rates

Research has shown a correlation between age and rearrest rates, with younger individuals being rearrested at higher rates, and sooner after release, than older individuals.

See

Ryan Cotter, Courtney Semisch & David Rutter, U.S. Sent'g Comm'n, Recidivism of Federal Offenders Released in 2010 (2021);

see also

Kim Steven Hunt & Billy Easley II, U.S. Sent'g Comm'n, The Effects of Aging on Recidivism Among Federal Offenders (2017).

Part A of the Proposed Amendment

Part A of the proposed amendment sets forth three options to change how sentences for offenses committed prior to age eighteen are considered in the calculation of a defendant's criminal history score.

Option 1

would amend § 4A1.2(d)(2)(A) to exclude juvenile sentences from receiving two criminal history points, limiting this provision to adult sentences of imprisonment of at least 60 days. As a result, juvenile sentences, including those that involved confinement, would receive at most one criminal history point under § 4A1.2(d)(2)(B). In addition, Option 1 would amend § 4A1.2(k)(2)(B) to explain how the applicable time period for revocations would work in light of the proposed changes. Finally, Option 1 would make conforming changes to the Commentary to §§ 4A1.2 and 4A1.1.

Option 2

would amend § 4A1.2(d) to exclude all juvenile sentences from being considered in the calculation of the criminal history score. It also includes bracketed language providing that such sentences may be considered for purposes of an upward departure under § 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)). In addition, Option 2 would amend § 4A1.2(k)(2)(B) to explain how the applicable time period for revocations would work in light of the proposed changes. It also would amend § 4A1.2(c)(2) to delete the reference to “juvenile status offenses and truancy” and amend § 4A1.2(f) to delete the reference to “diversion from juvenile court.” Finally, Option 2 would make conforming changes to the Commentary to §§ 4A1.2 and 4A1.1.

Option 3

would amend § 4A1.2(d) to exclude all sentences resulting from offenses committed prior to age eighteen from being considered in the calculation of the criminal history score. It also includes bracketed language providing that such sentences may be considered for purposes of an upward departure under § 4A1.3. In addition, Option 3 would amend § 4A1.2(e) and (k) to delete all references to sentences resulting from offenses committed prior to age eighteen. It also would amend § 4A1.2(c)(2) to delete the reference to “juvenile status offenses and truancy” and amend § 4A1.2(f) to delete the reference to “diversion from juvenile court.” Additionally, Option 3 would

make conforming changes to the Commentary to §§ 4A1.2 and 4A1.1.

Finally, Option 3 would make changes to the Commentary to §§ 2K1.3 (Unlawful Receipt, Possession, or Transportation of Explosive Materials; Prohibited Transactions Involving Explosive Materials), 2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition), and 2L1.2 (Unlawfully Entering or Remaining in the United States), and to subsection (e)(4) of § 4B1.2 (Definitions of Terms Used in Section 4B1.1), to delete references to convictions for offenses committed prior to age eighteen being used to increase offense levels.

Issues for comment are provided.

Part B of the Proposed Amendment

Part B of the proposed amendment would amend the first sentence in § 5H1.1 to delete “(including youth)” and “if considerations based on age, individually or in combination with other offender characteristics, are present to an unusual degree and distinguish the case from the typical cases covered by the guidelines.” Thus, the first sentence in § 5H1.1 would provide solely that “[a]ge may be relevant in determining whether a departure is warranted.” It would also add language specifically providing for a downward departure for cases in which the defendant was youthful at the time of the offense and set forth considerations for the court in determining whether a departure based on youth is warranted.

Issues for comment are provided.

(A) Computing Criminal History for Offenses Committed Prior to Age Eighteen

Proposed Amendment:

[Option 1 (Deleting the references to juvenile sentences that require a determination of “confinement”):

Section 4A1.2(d)(2)(A) is amended by striking: “add 2 points under § 4A1.1(b) for each adult or juvenile sentence to confinement of at least sixty days if the defendant was released from such confinement within five years of his commencement of the instant offense” and inserting “add 2 points under § 4A1.1(b) for each adult sentence of imprisonment of at least sixty days that resulted in the defendant being incarcerated within five years of his commencement of the instant offense”.

Section 4A1.2(k)(2)(B) is amended by striking “in the case of any other confinement sentence for an offense committed prior to the defendant's eighteenth birthday, the date of the defendant's last release from confinement on such sentence (

see

§ 4A1.2(d)(2)(A))” and inserting “in the case of an adult term of imprisonment of at least sixty days for an offense committed prior to the defendant's eighteenth birthday, the date of the defendant's last release from incarceration on such sentence (

see

§ 4A1.2(d)(2)(A))”.

The Commentary to § 4A1.2 captioned “Application Notes” is amended in Note 7 by striking “Therefore, for offenses committed prior to age eighteen, only those that resulted in adult sentences of imprisonment exceeding one year and one month, or resulted in imposition of an adult or juvenile sentence or release from confinement on that sentence within five years of the defendant's commencement of the instant offense are counted” and inserting “Therefore, for offenses committed prior to age eighteen, only certain adult or juvenile sentences are counted”.

The Commentary to § 4A1.1 captioned “Application Notes” is amended in Note 2 by striking “An adult or juvenile sentence imposed for an offense committed prior to the defendant's eighteenth birthday is counted only if confinement resulting from such sentence extended into the five-year period preceding the defendant's commencement of the instant offense” and inserting “An adult sentence imposed for an offense committed prior to the defendant's eighteenth birthday is counted only if the defendant's incarceration resulting from such sentence extended into the five-year period preceding the defendant's commencement of the instant offense”.]

[Option 2 (Deleting all references to juvenile sentences as part of the criminal history calculation rules):

Section 4A1.2(c)(2) is amended by striking “Juvenile status offenses and truancy”.

Section 4A1.2(d) is amended—

in paragraph (2)(A) by striking: “add 2 points under § 4A1.1(b) for each adult or juvenile sentence to confinement of at least sixty days if the defendant was released from such confinement within five years of his commencement of the instant offense” and inserting “add 2 points under § 4A1.1(b) for each adult sentence of imprisonment of at least sixty days that resulted in the defendant being incarcerated within five years of his commencement of the instant offense”;

in paragraph (2)(B) by striking “adult or juvenile sentence” and inserting “adult sentence”;

and by inserting at the end the following new paragraph (3):

“(3) Sentences resulting from juvenile adjudications are not counted[, but may be considered under § 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement))].”.

Section 4A1.2(f) is amended by striking “, except that diversion from juvenile court is not counted”.

see

§ 4A1.2(d)(2)(A))”.

The Commentary to § 4A1.2 captioned “Application Notes” is amended in Note 7 by striking the following:

“

Offenses Committed Prior to Age Eighteen.

—Section 4A1.2(d) covers offenses committed prior to age eighteen. Attempting to count every juvenile adjudication would have the potential for creating large disparities due to the differential availability of records. Therefore, for offenses committed prior to age eighteen, only those that resulted in adult sentences of imprisonment exceeding one year and one month, or resulted in imposition of an adult or juvenile sentence or release from confinement on that sentence within five years of the defendant's commencement of the instant offense are counted. To avoid disparities from jurisdiction to jurisdiction in the age at which a defendant is considered a `juvenile,' this provision applies to all offenses committed prior to age eighteen.”;

and inserting the following:

“

Offenses Committed Prior to Age Eighteen.

—Section 4A1.2(d) covers offenses committed prior to age eighteen. Offenses prior to age eighteen are counted only if the defendant was convicted and sentenced as an adult. If the defendant was convicted as an adult for an offense committed before age eighteen and received a sentence exceeding one year and one month, § 4A1.2(e) provides the applicable time period for counting the sentence. All other adult sentences for offenses committed prior to age eighteen are counted in accordance with § 4A1.2(d)(2).”.

The Commentary to § 4A1.1 captioned “Application Notes” is amended—

in Note 2 by striking “An adult or juvenile sentence imposed for an offense committed prior to the defendant's eighteenth birthday is counted only if confinement resulting from such sentence extended into the five-year period preceding the defendant's commencement of the instant offense” and inserting “An adult sentence imposed for an offense committed prior to the defendant's eighteenth birthday is counted only if the defendant's incarceration resulting from such sentence extended into the five-year period preceding the defendant's commencement of the instant offense”;

and in Note 3 by striking “An adult or juvenile sentence” and inserting “An adult sentence”.]

[Option 3 (Deleting all criminal history rules requiring counting of offenses committed prior to age eighteen):

Section 4A1.2(c)(2) is amended by striking “Juvenile status offenses and truancy”.

Section 4A1.2(d) is amended by striking the following:

“(1) If the defendant was convicted as an adult and received a sentence of imprisonment exceeding one year and one month, add 3 points under § 4A1.1(a) for each such sentence.

(2) In any other case,

(A) add 2 points under § 4A1.1(b) for each adult or juvenile sentence to confinement of at least sixty days if the defendant was released from such confinement within five years of his commencement of the instant offense;

(B) add 1 point under § 4A1.1(c) for each adult or juvenile sentence imposed within five years of the defendant's commencement of the instant offense not covered in (A).”;

and inserting the following:

“Sentences resulting from offenses committed prior to age eighteen are not counted[, but may be considered under § 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement))].”.

Section 4A1.2(e) is amended by striking paragraph (4) as follows:

“(4) The applicable time period for certain sentences resulting from offenses committed prior to age eighteen is governed by § 4A1.2(d)(2).”.

Section 4A1.2(f) is amended by striking “, except that diversion from juvenile court is not counted”.

Section 4A1.2(k)(2) is amended by striking the following:

“Revocation of probation, parole, supervised release, special parole, or mandatory release may affect the time period under which certain sentences are counted as provided in § 4A1.2(d)(2) and (e). For the purposes of determining the applicable time period, use the following: (A) in the case of an adult term of imprisonment totaling more than one year and one month, the date of last release from incarceration on such sentence (

see

§ 4A1.2(e)(1)); (B) in the case of any other confinement sentence for an offense committed prior to the defendant's eighteenth birthday, the date of the defendant's last release from confinement on such sentence (

see

§ 4A1.2(d)(2)(A)); and (C) in any other case, the date of the original sentence (

see

§ 4A1.2(d)(2)(B) and (e)(2)).”;

and inserting the following:

“Revocation of probation, parole, supervised release, special parole, or mandatory release may affect the time period under which certain sentences are counted as provided in § 4A1.2(e). For the purposes of determining the applicable time period, use the following: (A) in the case of an adult term of imprisonment totaling more than one year and one month, the date of last release from incarceration on such sentence (

see

§ 4A1.2(e)(1)); and (B) in any other case, the date of the original sentence (

see

§ 4A1.2(e)).”.

The Commentary to § 4A1.2 captioned “Application Notes” is amended—

in Note 7 by striking the following:

“

Offenses Committed Prior to Age Eighteen.

and inserting the following:

“

Offenses Committed Prior to Age Eighteen.

—Sentences resulting from offenses committed prior to age eighteen are not counted. [Nonetheless, the criminal conduct underlying any conviction resulting from offenses committed prior to age eighteen may be considered pursuant to § 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)).]”;

and in Note 8 by striking “Section 4A1.2(d)(2) and (e) establishes the time period within which prior sentences are counted. As used in § 4A1.2(d)(2) and (e), the term `commencement of the instant offense' includes any relevant conduct” and inserting “Section 4A1.2(e) establishes the time period within which prior sentences are counted. As used in § 4A1.2(e), the term `commencement of the instant offense' includes any relevant conduct”.

The Commentary to § 4A1.1 captioned “Application Notes” is amended—

in note 1 by striking “A sentence imposed for an offense committed prior to the defendant's eighteenth birthday is counted under this subsection only if it resulted from an adult conviction” and inserting “A sentence imposed for an offense committed prior to the defendant's eighteenth birthday is not counted”;

in Note 2 by striking “An adult or juvenile sentence imposed for an offense committed prior to the defendant's eighteenth birthday is counted only if confinement resulting from such sentence extended into the five-year period preceding the defendant's commencement of the instant offense” and inserting “A sentence imposed for an offense committed prior to the defendant's eighteenth birthday is not counted”;

and in Note 3 by striking “An adult or juvenile sentence imposed for an offense committed prior to the defendant's eighteenth birthday is counted only if imposed within five years of the defendant's commencement of the current offense” and inserting “A sentence imposed for an offense committed prior to the defendant's eighteenth birthday is not counted”.

The Commentary to § 2K1.3 captioned “Application Notes” is amended in Note 2, in the paragraph that begins ” `Felony conviction' means”, by striking “A conviction for an offense committed prior to age eighteen years is an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted (

e.g.,

a federal conviction for an offense committed prior to the defendant's eighteenth birthday is an adult conviction if the defendant was expressly proceeded against as an adult).”.

The Commentary to § 2K2.1 captioned “Application Notes” is amended in Note 1, in the paragraph that begins ” `Felony conviction' means”, by striking “A conviction for an offense committed prior to age eighteen years is an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted (

e.g.,

a federal conviction for an offense committed prior to the

defendant's eighteenth birthday is an adult conviction if the defendant was expressly proceeded against as an adult).”.

The Commentary to § 2L1.2 captioned “Application Notes” is amended in Note 1 by striking the following:

“

In General.

—

(A)

`Ordered Deported or Ordered Removed from the United States for the First Time'.

—For purposes of this guideline, a defendant shall be considered `ordered deported or ordered removed from the United States' if the defendant was ordered deported or ordered removed from the United States based on a final order of exclusion, deportation, or removal, regardless of whether the order was in response to a conviction. `For the first time' refers to the first time the defendant was ever the subject of such an order.

(B)

Offenses Committed Prior to Age Eighteen.

—Subsections (b)(1), (b)(2), and (b)(3) do not apply to a conviction for an offense committed before the defendant was eighteen years of age unless such conviction is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted.”;

and inserting the following:

“

`Ordered Deported or Ordered Removed from the United States for the First Time'.

Section 4B1.2(e)(4) is amended by striking “A conviction for an offense committed prior to age eighteen is an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted (

e.g.,

a federal conviction for an offense committed prior to the defendant's eighteenth birthday is an adult conviction if the defendant was expressly proceeded against as an adult).”.]

Issues for Comment:

1. The Commission seeks general comment on juvenile court systems and sentencing of youthful individuals. In particular, the Commission requests input on: (a) how different jurisdictions sentence younger individuals (

e.g.,

youthful rehabilitation statutes); (b) how judges make decisions regarding residential placement or confinement upon an adjudication of guilt; (c) the factors that influence transfer to adult court for offenses committed prior to age eighteen; (d) racial disparities; and (e) practices related to expungement and sealing of records in different jurisdictions. For example, are there particular research studies, experts, or practitioners that the Commission should consult?

2. The Commission seeks comment on whether it should make any of the changes set forth in Part A of the proposed amendment with respect to juvenile sentences and sentences for offenses committed prior to age eighteen for purposes of Chapter Four, Part A (Criminal History). Should the Commission limit any of the options based on: (a) the type of crime involved in the offense committed prior to age eighteen; (b) the age of the individual at the time of the offense committed prior to age eighteen; or (c) any other factor? Should the Commission consider an alternative approach in accounting for offenses committed prior to age eighteen, such as a downward departure?

3. If the Commission were to promulgate Option 2 (exclude juvenile sentences) or Option 3 (exclude all sentences for offenses committed prior to age eighteen) in Part A of the proposed amendment, should the Commission provide that any such sentence may be considered for purposes of an upward departure under § 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)) as provided in the bracketed language? If so, should the Commission limit the consideration of such departures to certain offenses?

4. Option 3 would amend subsection (d) of § 4A1.2 (Definitions and Instructions for Computing Criminal History) to exclude all sentences resulting from offenses committed prior to age eighteen from being considered in the calculation of the criminal history score. This change would impact the use of predicate offenses in multiple guidelines, including §§ 2K1.3 (Unlawful Receipt, Possession, or Transportation of Explosive Materials; Prohibited Transactions Involving Explosive Materials), 2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition), 2L1.2 (Unlawfully Entering or Remaining in the United States), and 4B1.2 (Definitions of Terms Used in Section 4B1.1). Some of these guideline provisions were promulgated in response to directives, such as 28 U.S.C. 994(h). The Commission invites comment on whether Option 3 exceeds the Commission's authority under 28 U.S.C. 994(h) or any other congressional directives.

5. If the Commission were to promulgate any of the options in Part A of the proposed amendment and amend subsection (d) of § 4A1.2 (Definitions and Instructions for Computing Criminal History), should the Commission make any changes to § 3B1.4 (Using a Minor to Commit a Crime)? If so, what changes should the Commission make? For example, should the Commission expand the scope of application or increase the magnitude of the adjustment? If so, how?

(B) Sentencing of Youthful Individuals

Proposed Amendment:

Section 5H1.1 is amended by striking the following:

“Age (including youth) may be relevant in determining whether a departure is warranted, if considerations based on age, individually or in combination with other offender characteristics, are present to an unusual degree and distinguish the case from the typical cases covered by the guidelines. Age may be a reason to depart downward in a case in which the defendant is elderly and infirm and where a form of punishment such as home confinement might be equally efficient as and less costly than incarceration. Physical condition, which may be related to age, is addressed at § 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction).”;

and inserting the following:

“Age may be relevant in determining whether a departure is warranted. Age may be a reason to depart downward in a case in which the defendant is elderly and infirm and where a form of punishment such as home confinement might be equally efficient as and less costly than incarceration. A downward departure also may be warranted due to the defendant's youthfulness at the time of the offense. In an appropriate case, the court may consider whether a form of punishment other than imprisonment might be sufficient to meet the purposes of sentencing. In determining whether a departure based on youth is warranted, and the extent of such departure, the court should consider the following:

(1) Scientific studies on brain development showing that psychosocial maturity, which involves impulse control, risk assessment, decision-making, and resistance to peer pressure, is generally not developed until the mid-20s.

(2) Research showing a correlation between age and rearrest rates, with younger individuals rearrested at higher

rates and sooner after release than older individuals.

Physical condition, which may be related to age, is addressed at § 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction).”.

Issues for Comment:

1. The Commission seeks general comment on sentencing of younger individuals, including how to balance brain development research suggesting potentially lower culpability with research on higher rearrest rates and potential dangerousness. The Commission further seeks comment on any relevant developments in legal or scientific literature relating to the impact of brain development and age on youthful criminal behavior. For example, are there particular research studies, experts, or practitioners that the Commission should consult?

2. The Commission seeks comment on whether it should amend § 5H1.1 (Age (Policy Statement)) as set forth in Part B of the proposed amendment or otherwise change the provision in any other way with respect to youthful individuals. Should the Commission include additional or different factors for courts to consider in determining whether a downward departure based on youth may be warranted?

3. Acquitted Conduct

Synopsis of Proposed Amendment:

This proposed amendment is a result of the Commission's consideration of possible amendments to the

Guidelines Manual

to prohibit the use of acquitted conduct in applying the guidelines.

See

U.S. Sent'g Comm'n, “Notice of Final Priorities,” 88 FR 60536 (Sept. 1, 2023).

Acquitted conduct is not expressly addressed in the

Guidelines Manual,

except for a reference in the parenthetical summary of the holding in

United States

Watts,

519 U.S. 148 (1997).

See

USSG § 6A1.3, comment. However, consistent with the Supreme Court's holding in

Watts,

consideration of acquitted conduct is permitted under the guidelines through the operation of § 1B1.3 (Relevant Conduct (Factors that Determine the Guideline Range)), in conjunction with § 1B1.4 (Information to be Used in Imposing Sentence) and § 6A1.3 (Resolution of Disputed Factors (Policy Statement)).

Section 1B1.3 sets forth the principles and limits of sentencing accountability for purposes of determining a defendant's guideline range, a concept referred to as “relevant conduct.” Relevant conduct impacts nearly every aspect of guidelines application, including the determination of: base offense levels where more than one level is provided, specific offense characteristics, and any cross references in Chapter Two (Offense Conduct); any adjustments in Chapter Three (Adjustment); and certain departures and adjustments in Chapter Five (Determining the Sentence).

Specifically, § 1B1.3(a)(1) provides that relevant conduct comprises “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant,” and all acts and omissions of others “in the case of a jointly undertaken criminal activity,” that “occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.”

Relevant conduct also includes, for some offense types, “all acts and omissions described in subdivisions (1)(A) and (1)(B) above that were part of the same course of conduct or common scheme or plan as the offense of conviction,” “all harm that resulted from the acts and omissions specified in subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts and omissions,” and “any other information specified in the applicable guideline.”

See

USSG § 1B1.3(a)(2)-(a)(4). The background commentary to § 1B1.3 explains that “[c]onduct that is not formally charged or is not an element of the offense of conviction may enter into the determination of the applicable guideline sentencing range.”

The

Guidelines Manual

also includes Chapter Six, Part A (Sentencing Procedures) addressing sentencing procedures that are applicable in all cases. Specifically, § 6A1.3 provides for resolution of any reasonably disputed factors important to the sentencing determination. Section 6A1.3(a) provides, in pertinent part, that “[i]n resolving any dispute concerning a factor important to sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” The Commentary to § 6A1.3 instructs that “[i]n determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial” and that “[a]ny information may be considered” so long as it has sufficient indicia of reliability to support its probable accuracy. The Commentary cites to 18 U.S.C. 3661 and Supreme Court case law upholding the sentencing court's discretion in considering any information at sentencing, so long as it is proved by a preponderance of the evidence. Consistent with the Supreme Court case law, the Commentary also provides that “[t]he Commission believes that use of a preponderance of the evidence standard is appropriate to meet due process requirements and policy concerns in resolving disputes regarding application of the guidelines to the facts of a case.”

In fiscal year 2022, nearly all sentenced individuals (62,529; 97.5%) were convicted through a guilty plea. The remaining 1,613 sentenced individuals (2.5% of all sentenced individuals) were convicted and sentenced after a trial, and 286 of those sentenced individuals (0.4% of all sentenced individuals) were acquitted of at least one offense or found guilty of only a lesser included offense.

The proposed amendment would amend the

Guidelines Manual

to address the use of acquitted conduct for purposes of determining a sentence. Three options are presented.

Option 1

would amend § 1B1.3 to add a new subsection (c) providing that acquitted conduct is not relevant conduct for purposes of determining the guideline range. It would define “acquitted conduct” as conduct [underlying] [constituting an element of] a charge of which the defendant has been acquitted by the trier of fact in federal court or upon a motion of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. It brackets possible language that would exclude from the definition of “acquitted conduct” conduct establishing, in whole or in part, the instant offense of conviction that was admitted by the defendant during a guilty plea colloquy or found by the trier of fact beyond a reasonable doubt. The proposed amendment further brackets the possibility of clarifying that such conduct is excluded from the definition regardless of whether the conduct also underlies a charge of which the defendant has been acquitted.

Option 1

would also amend the Commentary to § 6A1.3 (Resolution of Disputed Factors (Policy Statement)) to make conforming revisions addressing the use of acquitted conduct for purposes of determining the guideline range.

Option 2

would amend the Commentary to § 1B1.3 to add a new application note providing that a downward departure may be warranted if the use of acquitted conduct has a disproportionate impact in determining the guideline range relative to the offense of conviction. It brackets the possibility of limiting the departure's application to cases in which the impact

is “extremely” disproportionate. It clarifies in a parenthetical that acquitted conduct is conduct [underlying] [constituting an element of] a charge of which the defendant has been acquitted by the trier of fact in federal court or upon a motion of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure.

Option 3

would amend § 6A1.3 to add a new subsection (c) addressing the standard of proof required to resolve disputes involving sentencing factors. It provides that a preponderance of the evidence standard generally is appropriate to meet due process requirements and policy concerns in resolving such disputes. However, it further provides that acquitted conduct should not be considered unless it is established by clear and convincing evidence.

It would define “acquitted conduct” as conduct [underlying] [constituting an element of] a charge of which the defendant has been acquitted by the trier of fact in federal court or upon a motion of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure.

Option 3 would also make conforming changes to the Commentary of §§ 6A1.3 and 1B1.3.

Issues for comment are also provided.

Proposed Amendment:

[Option 1 (Acquitted conduct excluded from guideline range):

Section 1B1.3 is amended—

in subsection (a), in the heading, by striking “

Chapters Two (Offense Conduct) and Three (Adjustments).”

and inserting “

Chapters Two (Offense Conduct) and Three (Adjustments).

—”;

in subsection (b), in the heading, by striking “

Chapters Four (Criminal History and Criminal Livelihood) and Five (Determining the Sentence).”

and inserting “

Chapters Four (Criminal History and Criminal Livelihood) and Five (Determining the Sentence).

—”;

and by inserting at the end the following new subsection (c):

“(c)

Acquitted Conduct.

—

(1)

Exclusion.

—Acquitted conduct is not relevant conduct for purposes of determining the guideline range.

(2)

Definition of Acquitted Conduct.

—`Acquitted conduct' means conduct (

i.e.,

[`Acquitted conduct' does not include conduct that—

(A) was admitted by the defendant during a guilty plea colloquy; or

(B) was found by the trier of fact beyond a reasonable doubt;

to establish, in whole or in part, the instant offense of conviction[, regardless of whether such conduct also underlies a charge of which the defendant has been acquitted].]”.

The Commentary to § 6A1.3 is amended—

by striking “

see also

United States

Lamon,

893 F.3d 369, 371 (7th Cir. 2018) (declining to overturn Sinclair to rectify the circuit split; “the mere existence of a circuit split does not justify overturning precedent . . . especially true here, because in Sinclair we knew that we were creating the split, and in doing so weighed the impact that our contrary decision would have on uniformity among the circuits”). The Seventh Circuit further explained, “[w]ith this particular combination of offenses, the otherwise applicable basis for grouping the drug-trafficking and felon-in-possession counts dropped out of the case.” Sinclair, 770 F.3d at 1157-58.

Part B of the proposed amendment generally follows the Sixth, Eighth, and Eleventh Circuits' approach. It would amend the Commentary to § 2K2.4 to restate the grouping rule in § 3D1.2(c) and provide an example stating that, in accordance with § 3D1.2(c), in case in which the defendant is convicted of a felon-in-possession count under 18 U.S.C. 922(g) and a drug trafficking count underlying a conviction under 18 U.S.C. 924(c), such counts shall be grouped.

An issue for comment is also provided.

Proposed Amendment:

The Commentary to § 2K2.4 captioned “Application Notes” is amended in Note 4 by striking the following:

“

Weapon Enhancement.

—If a sentence under this guideline is imposed in conjunction with a sentence for an underlying offense, do not apply any specific offense characteristic for possession, brandishing, use, or discharge of an explosive or firearm when determining the sentence for the underlying offense. A sentence under this guideline accounts for any explosive or weapon enhancement for the underlying offense of conviction, including any such enhancement that would apply based on conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct). Do not apply any weapon enhancement in the guideline for the underlying offense, for example, if (A) a co-defendant, as part of the jointly undertaken criminal activity, possessed a firearm different from the one for which the defendant was convicted under 18 U.S.C. 924(c); or (B) in an ongoing drug trafficking offense, the defendant possessed a firearm other than the one for which the defendant was convicted under 18 U.S.C. 924(c). However, if a defendant is convicted of two armed bank robberies, but is convicted under 18 U.S.C. 924(c) in connection with only one of the robberies, a weapon enhancement would apply to the bank robbery which was not the basis for the 18 U.S.C. 924(c) conviction.

A sentence under this guideline also accounts for conduct that would subject the defendant to an enhancement under § 2D1.1(b)(2) (pertaining to use of violence, credible threat to use violence, or directing the use of violence). Do not apply that enhancement when determining the sentence for the underlying offense.

If the explosive or weapon that was possessed, brandished, used, or discharged in the course of the underlying offense also results in a conviction that would subject the defendant to an enhancement under § 2K1.3(b)(3) (pertaining to possession of explosive material in connection with another felony offense) or § 2K2.1(b)(6)(B) (pertaining to possession of any firearm or ammunition in connection with another felony offense), do not apply that enhancement. A sentence under this guideline accounts for the conduct covered by these enhancements because of the relatedness of that conduct to the conduct that forms the basis for the conviction under 18 U.S.C. 844(h), § 924(c) or § 929(a). For example, if in addition to a conviction for an underlying offense of armed bank robbery, the defendant was convicted of being a felon in possession under 18 U.S.C. 922(g), the enhancement under § 2K2.1(b)(6)(B) would not apply.

In a few cases in which the defendant is determined not to be a career offender, the offense level for the underlying offense determined under the preceding paragraphs may result in a guideline range that, when combined with the mandatory consecutive sentence under 18 U.S.C. 844(h), § 924(c), or § 929(a), produces a total maximum penalty that is less than the maximum of the guideline range that would have resulted had there not been a count of conviction under 18 U.S.C. 844(h), § 924(c), or § 929(a) (

i.e.,

the guideline range that would have resulted if the enhancements for possession, use, or discharge of a firearm had been applied). In such a case, an upward departure may be warranted so that the conviction under 18 U.S.C. 844(h), § 924(c), or § 929(a) does not result in a decrease in the total punishment. An upward departure under this paragraph shall not exceed the maximum of the guideline range that would have resulted had there not been a count of conviction under 18 U.S.C. 844(h), § 924(c), or § 929(a).”;

and inserting the following:

“

Non-Applicability of Certain Enhancements.

—

(A)

In General.

(B)

Impact on Grouping.

—If two or more counts would otherwise group under subsection (c) of § 3D1.2 (Groups of Closely Related Counts), the counts are to be grouped together under § 3D1.2(c) despite the non-applicability of certain enhancements under Application Note 4(A). Thus, for example, in a case in which the defendant is convicted of a felon-in-possession count under 18 U.S.C. 922(g) and a drug trafficking count underlying a conviction under 18 U.S.C. 924(c), the counts shall be grouped pursuant to § 3D1.2(c). The applicable Chapter Two guidelines for the felon-in-possession count and the drug trafficking count each include `conduct that is treated as a specific offense characteristic' in the other count, but the otherwise applicable enhancements did not apply due to the rules in § 2K2.4 related to 18 U.S.C. 924(c) convictions.

(C)

Upward Departure Provision.

—In a few cases in which the defendant is determined not to be a career offender, the offense level for the underlying offense determined under the preceding paragraphs may result in a guideline range that, when combined with the mandatory consecutive sentence under 18 U.S.C. 844(h), § 924(c), or § 929(a), produces a total maximum penalty that is less than the maximum of the guideline range that would have resulted had there not been a count of conviction under 18 U.S.C. 844(h), § 924(c), or § 929(a) (

i.e.,

Issue for Comment:

1. Part B of the proposed amendment would amend the Commentary to § 2K2.4 (Use of Firearm, Armor-Piercing Ammunition, or Explosive During or in Relation to Certain Crimes) to address the circuit conflict described in the synopsis above. It would amend Application Note 4 in the Commentary to § 2K2.4 to restate the grouping rule in subsection (c) of § 3D1.2 (Grouping of Closely Related Counts) and provide an example stating that, in accordance with § 3D1.2(c), in a case in which the defendant is convicted of a felon-in-possession count under 18 U.S.C. 922(g) and a drug trafficking count underlying a conviction under 18 U.S.C. 924(c), such counts shall be grouped. The Commission seeks comment on whether it should provide additional or different guidance to address this circuit conflict.

In the alternative, should the Commission address the circuit conflict in a manner other than the one provided in Part B of the proposed amendment? For example, should the Commission amend § 3D1.2 to provide additional or different guidance about how to apply § 3D1.2(c)?

5. Miscellaneous

Synopsis of Proposed Amendment:

This proposed amendment responds to recently enacted legislation and miscellaneous guideline issues.

See

U.S. Sent'g Comm'n, “Notice of Final Priorities,” 88 FR 60536 (Sept. 1, 2023) (identifying as priorities “[i]mplementation of any legislation warranting Commission action” and “[c]onsideration of other miscellaneous issues coming to the Commission's attention”). The proposed amendment contains six parts (Parts A through F). The Commission is considering whether to promulgate any or all these parts, as they are not mutually exclusive.

Part A

responds to the Safeguard Tribal Objects of Patrimony (“STOP”) Act of 2021, Public Law 117-258 (2022), by amending Appendix A (Statutory Index) and the Commentary to § 2B1.5 (Theft of, Damage to, or Destruction of, Cultural Heritage Resources or Paleontological Resources; Unlawful Sale, Purchase, Exchange, Transportation, or Receipt of Cultural Heritage Resources or Paleontological Resources). An issue for comment is also provided.

Part B

responds to the Export Control Reform Act of 2018, enacted as part of the John McCain National Defense Authorization Act for Fiscal Year 2019, Public Law 115-232 (Aug. 13, 2018), and to concerns raised by the Department of Justice and the Disruptive Technology Strike Force (an interagency collaboration between the Department of Justice's National Security Division and the Department of Commerce's Bureau of Industry and Security), by amending Appendix A and § 2M5.1 (Evasion of Export Controls; Financial Transactions with Countries Supporting International Terrorism). Two issues for comment are also provided.

Part C

responds to concerns raised by the Department of Justice relating to offenses under 31 U.S.C. 5322 and 5336 and § 2S1.3 (Structuring Transactions to Evade Reporting Requirements; Failure to Report Cash or Monetary Transactions; Failure to File Currency and Monetary Instrument Report; Knowingly Filing False Reports; Bulk Cash Smuggling; Establishing or Maintaining Prohibited Accounts), by amending the specific offense characteristic at § 2S1.3(b)(2)(B) to reflect the enhanced penalty applicable to offenses under those statutes.

Part D

responds to concerns raised by the Department of Justice relating to the statutes referenced in Appendix A to § 2R1.1 (Bid-Rigging, Price-Fixing or Market-Allocation Agreements Among Competitors), by amending Appendix A and the Commentary to § 2R1.1 to replace the reference to 15 U.S.C. 3(b) with a reference to 15 U.S.C. 3(a).

Part E

addresses a miscellaneous issue regarding the application of the base offense levels at subsections (a)(1)-(a)(4) of § 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy). Two options are presented.

Part F

responds to concerns raised by the Department of Justice relating to the scope of the definition of “sex offense” in subsection (b)(2) of § 4C1.1 (Adjustment for Certain Zero-Point Offenders). Two options are presented.

(A) Safeguard Tribal Objects of Patrimony (“STOP”) Act of 2021

Synopsis of Proposed Amendment:

Part A of the proposed amendment responds to the Safeguard Tribal Objects of Patrimony (“STOP”) Act of 2021, Public Law 117-258 (Dec. 21, 2022). The Act added two new criminal offenses at 25 U.S.C. 3073 (Export prohibitions; export certification system; international agreements). In addition, the Act increased the penalties for offenses under 18 U.S.C. 1170 (Illegal trafficking in Native American human remains and cultural items).

The first new offense, created by the Act and codified at 25 U.S.C. 3073(a)(1), prohibits exporting, attempting to export, or otherwise transporting from the United States any “Item Prohibited from Exportation,” and conspiring to engage in and concealing such activity. An “Item Prohibited from Exportation” means (A) a cultural item prohibited from being trafficked (including through sale, purchase, use for profit, or transport for sale or profit) by 18 U.S.C. 1170(b) or any other federal law or treaty; and (B) an archaeological resource prohibited from being trafficked (including through sale, purchase, exchange, transport, receipt, or offer to sell, purchase, or exchange, including in interstate or foreign commerce) by subsections (b) and (c) of 16 U.S.C. 470ee (Archaeological Resources Protection; Prohibited acts and criminal penalties) or any other federal law or treaty. 25 U.S.C. 3072(5). A violation of this offense, if the person knew, or should have known, that the item was taken, possessed, transported, or sold in violation of, or in a manner that is unlawful under, any federal law or treaty, is punishable by a maximum term of imprisonment of one year and one day for a first violation (and not more than ten years for a second or subsequent violation), a fine, or both. 25 U.S.C. 3073(a)(2).

The second new offense, codified at 25 U.S.C. 3073(b)(5)(A)(i), prohibits exporting, attempting to export, or otherwise transporting from the United States any “Item Requiring Export Certification” without first obtaining an export certification. An “Item Requiring Export Certification” means a cultural item and an archaeological resource but does not include any such item or resource for which an Indian Tribe or Native Hawaiian organization with a cultural affiliation with the item has provided a certificate authorizing exportation of the item. 25 U.S.C. 3072(6). A violation of this provision is subject to a civil penalty and any other applicable penalties under chapter 32B (Safeguard Tribal Objects of Patrimony) of title 25, United States Code. 25 U.S.C. 3073(b)(5)(A)(ii).

In addition, the Act increased the maximum terms of imprisonment for offenses under 18 U.S.C. 1170. Section 1170(a) prohibits knowingly selling, purchasing, using for profit, or transporting for sale or profit, the human remains of a Native American without the right of possession to those remains. The Act increased the penalty for this offense from a maximum term of imprisonment of 12 months to one year and one day, changing its classification from a misdemeanor to a felony. It further increased the maximum term of imprisonment for a second or subsequent offense under section 1170(a) from five to ten years. The Act also increased the maximum term of imprisonment for a second or subsequent offense under 18 U.S.C. 1170(b) from five to ten years. Section 1170(b) prohibits knowingly selling, purchasing, using for profit, or transporting for sale or profit, any Native American cultural items obtained in violation of the Native American Grave Protection and Repatriation Act. Section 1170 offenses are currently referenced in Appendix A (Statutory Index) to § 2B1.5 (Theft of, Damage to, or Destruction of, Cultural Heritage Resources or Paleontological Resources; Unlawful Sale, Purchase, Exchange, Transportation, or Receipt of Cultural Heritage Resources or Paleontological Resources). The maximum terms of imprisonment for offenses under 18 U.S.C. 1170, as revised by the Act, are still within the maximum penalty range of one year to 20 years for other offenses referenced to § 2B1.5.

Part A of the proposed amendment would amend Appendix A to reference the new offenses under 25 U.S.C. 3073 to § 2B1.5. The conduct prohibited by 25 U.S.C. 3073 is similar to the conduct prohibited by 18 U.S.C. 1170. Part A of the proposed amendment would also amend the Commentary to § 2B1.5 to reflect that 25 U.S.C. 3073 is referenced to the guideline. In addition, it would make additional technical changes to the Commentary to § 2B1.5, including specifying that 18 U.S.C. 666(a)(1)(A) is referenced to the guideline.

An issue for comment is also provided.

Proposed Amendment:

Appendix A (Statutory Index) is amended by inserting before the line referenced to 25 U.S.C. 5306 the following new line reference:

“25 U.S.C. 3073 2B1.5”.

The Commentary to § 2B1.5 captioned “Statutory Provisions” is amended by striking “16 U.S.C. 470aaa-5, 470ee, 668(a), 707(b); 18 U.S.C. 541-546, 554, 641, 661-662, 666, 668, 1163, 1168, 1170, 1361, 1369, 2232, 2314-2315” and inserting: “16 U.S.C. 470aaa-5, 470ee, 668(a), 707(b); 18 U.S.C. 541-546, 554, 641, 661-662, 666(a)(1)(A), 668, 1163, 1168, 1170, 1361, 1369, 2232, 2314-2315; 25 U.S.C. 3073. For additional statutory provision(s),

see

Appendix A (Statutory Index)”.

Issue for Comment:

1. In response to the Safeguard Tribal Objects of Patrimony (“STOP”) Act of 2021, Public Law 117-258 (2022), Part A of the proposed amendment would reference 25 U.S.C. 3073 to § 2B1.5 (Theft of, Damage to, or Destruction of, Cultural Heritage Resources or Paleontological Resources; Unlawful Sale, Purchase, Exchange, Transportation, or Receipt of Cultural Heritage Resources or Paleontological Resources). The Commission seeks comment on whether any additional changes to the guidelines are required in response to the Act. Specifically, should the Commission amend § 2B1.5 to provide a higher or lower base offense level in response to the changes brought by the Act? If so, what should that base offense level be and why? Should the Commission add a specific offense characteristic to § 2B1.5 in response to the Act? If so, what should that specific offense characteristic provide and why?

(B) Evasion of Export Controls

Synopsis of Proposed Amendment:

Part B of the proposed amendment responds to the Export Control Reform Act of 2018, enacted as part of the John McCain National Defense Authorization Act for Fiscal Year 2019, Public Law 115-232 (Aug. 13, 2018), and to concerns raised by the Department of Justice and the Disruptive Technology Strike Force (an interagency collaboration between the Department of Justice's National Security Division and the Department of Commerce's Bureau of Industry and Security).

The Export Control Reform Act of 2018 repealed the Export Administration Act of 1979 (previously codified at 50 U.S.C. 4601-4623) regarding export controls of dual-use items. Dual-use items have both civilian and military applications and are subject to export licensing requirements. The Export Control Reform Act of 2018 also included new provisions, codified at 50 U.S.C. 4801-4826, relating to export controls for national security and foreign policy purposes, to further the policy of the United States “to restrict the export of items which would make a significant contribution to the military potential of any other country or

combination of countries which would prove detrimental to the national security of the United States” and “to restrict the export of items if necessary to further significantly the foreign policy of the United States or to fulfill its declared international obligations.”

See

50 U.S.C. 4811. These new provisions authorize the Department of Commerce to develop the Export Administration Regulations, which establish the export controls governing dual-use and other items. In addition, the Export Control Reform Act of 2018 is the first export control statute to explicitly consider the economic security of the United States as a component or element of national security.

The Export Control Reform Act of 2018 maintained much of the dual-use export controls previously established under the Export Administration Act of 1979, but in a process that is still ongoing, the agencies charged with administering and enforcing the Act are still making significant changes to what items are controlled and have increased the overall restrictions on export licensing. In addition to the items and services already controlled by the Export Administration Regulations, the Export Control Reform Act of 2018 requires the President to establish an interagency process to identify “emerging and foundational technologies that are `essential to the national security of the United States' ” but are not already included in the definition of “critical technologies” in the Foreign Investment Risk Review Modernization Act.

See

50 U.S.C. 4817(a). Examples of “emerging technologies” include artificial intelligence and machine learning; quantum information and sensing technology; robotics; and biotechnology. “Foundational technologies” are described as technologies that may warrant stricter controls if an application or capability of that technology poses a national security threat. The Export Control Reform Act of 2018 also requires the Department of Commerce to “establish and maintain a list” of controlled items, foreign persons, and end uses determined to be a threat to national security and foreign policy.

Id.

§ 4813.

The Export Control Reform Act of 2018 includes a criminal offense at new section 4819 (replacing repealed 50 U.S.C. 4610 (Violations)), which prohibits willfully committing, willfully attempting or conspiring to commit, or aiding and abetting a violation of the Act or of any regulation, order, license, or other authorization issued under the Act. Any such violation is punishable by a fine of not more than $1,000,000, a maximum term of imprisonment of 20 years, or both.

See

50 U.S.C. 4819(b). Offenses under repealed section 4610 are currently referenced in Appendix A (Statutory Index) to § 2M5.1 (Evasion of Export Controls; Financial Transactions with Countries Supporting International Terrorism), which also appears to be the most analogous guideline for the offenses under new section 4819. The maximum term of imprisonment at new section 4819(b) is greater than the maximum penalties of five and ten years provided in the repealed section 4610 but is within the maximum penalty range of ten to 20 years for other offenses referenced to § 2M5.1.

In addition, the Department of Justice and the Disruptive Technology Strike Force recommended that the Commission consider amending § 2M5.1 to ensure that all controls related to national security are covered by the guideline provisions.

See

Annual Letter from the U.S. Department of Justice to the Commission (Aug. 1, 2023), at

https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/202308/88FR39907_public-comment_R.pdf#page=38;

Letter from U.S. Department of Justice National Security Division & U.S. Department of Commerce Bureau of Industry and Security (Aug. 1, 2023),

at https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/202308/88FR39907_public-comment_R.pdf#page=55.

Both the Department of Justice and the Disruptive Technology Strike Force are concerned that, given the wide-range of national security-related controls in force, some courts have applied § 2M5.1 too narrowly.

The Department of Justice explained that under the Export Administration Regulations and the Commerce Control List (contained within the Export Administration Regulations) export controls related to national security can carry different designations correlating to the specific reason certain items (

i.e.,

commodities, software, technology) are subject to the nation's export licensing authority and are thus controlled. One such designation is “NS” (National Security), while other designations include “MT” (Missile Technology), “RS,” (Regional Stability), “CB” (Proliferation of Chemical and Biological Weapons), “AT” (Anti-Terrorism), and “NP” (Nuclear Nonproliferation). The Department of Justice further clarified that other export controls comprise “the full spectrum of national security related controls,” including export controls to certain military end-users and foreign entities when they present an unacceptable security risk to national security policy interests and export controls placed on certain goods and destinations based on sanctions and embargoes imposed by the President pursuant to the International Emergency Economic Powers Act (50 U.S.C. 1701-1705) or other specific acts of Congress.

According to the Department of Justice, because § 2M5.1(a)(1)(A) specifically refers to “national security controls,” some sentencing courts may erroneously conclude that only the goods controlled under the Commerce Control List's “NS” designation, and not the goods controlled under separate sections of the Export Administration Regulations or the International Emergency Economic Powers Act, qualify for the higher alternative base offense level 26 at § 2M5.1(a)(1)(A). Both the Department of Justice and the Disruptive Technology Strike Force recommend replacing the term “national security controls” currently used at § 2M5.1(a)(1)(A) with the term “controls related to national security,” to ensure that the provision includes “the full spectrum” of national security-controls, including anti-terrorism, missile technology, regional stability, proliferation of chemical and biological weapons, nuclear nonproliferation, and military and weapons of mass destruction end-uses and end-users and entity-specific controls, and sanctions and embargoes.

Part B of the proposed amendment would amend Appendix A and the Commentary to § 2M5.1 to reflect the new United States Code section numbers relating to export controls for national security and foreign policy.

Additionally, Part B of the proposed amendment would amend § 2M5.1(a)(1)(A) in response to the concerns raised by the Department of Justice and the Disruptive Technology Strike Force. It would replace the term “national security controls” with “controls relating to national security [(including controls on emerging and foundational technologies)].”

Finally, Part B of the proposed amendment would make technical changes to the Commentary to § 2M5.1 by reorganizing the application notes and adding headings.

Two issues for comment are also provided.

Proposed Amendment:

Appendix A (Statutory Index) is amended in the line referenced to 50 U.S.C. 4610 by striking “§ 4610” and inserting “§ 4819”.

Section 2M5.1(a)(1) is amended by striking “national security controls” and inserting “controls relating to national security [(including controls on

emerging and foundational technologies)]”.

The Commentary to § 2M5.1 captioned “Statutory Provisions” is amended by striking “50 U.S.C. 1705; 50 U.S.C. 4601-4623” and inserting “50 U.S.C. 1705, 4819”.

The Commentary to § 2M5.1 captioned “Application Notes” is amended—

by striking Notes 1 through 4 as follows:

“1. In the case of a violation during time of war or armed conflict, an upward departure may be warranted.

2. In determining the sentence within the applicable guideline range, the court may consider the degree to which the violation threatened a security interest of the United States, the volume of commerce involved, the extent of planning or sophistication, and whether there were multiple occurrences. Where such factors are present in an extreme form, a departure from the guidelines may be warranted.

See

Chapter Five, Part K (Departures).

3. In addition to the provisions for imprisonment, 50 U.S.C. 4610 contains provisions for criminal fines and forfeiture as well as civil penalties. The maximum fine for individual defendants is $250,000. In the case of corporations, the maximum fine is five times the value of the exports involved or $1 million, whichever is greater. When national security controls are violated, in addition to any other sanction, the defendant is subject to forfeiture of any interest in, security of, or claim against: any goods or tangible items that were the subject of the violation; property used to export or attempt to export that was the subject of the violation; and any proceeds obtained directly or indirectly as a result of the violation.

4. For purposes of subsection (a)(1)(B), `a country supporting international terrorism' means a country designated under section 6(j) of the Export Administration Act (50 U.S.C. 4605).”;

and by inserting the following new Notes 1, 2, and 3:

“1.

Definition.

—For purposes of subsection (a)(1)(B), `a country supporting international terrorism' means a country designated under section 1754 of the Export Controls Act of 2018 (50 U.S.C. 4813).

Additional Penalties.

—In addition to the provisions for imprisonment, 50 U.S.C. 4819 contains provisions for criminal fines and forfeiture as well as civil penalties.

Departure Provisions.

—

(A)

In General.

—In determining the sentence within the applicable guideline range, the court may consider the degree to which the violation threatened a security interest of the United States, the volume of commerce involved, the extent of planning or sophistication, and whether there were multiple occurrences. Where such factors are present in an extreme form, a departure from the guidelines may be warranted.

See

Chapter Five, Part K (Departures).

(B)

War or Armed Conflict.

—In the case of a violation during time of war or armed conflict, an upward departure may be warranted.”.

Issues for Comment:

1. In response to the Export Control Reform Act of 2018, enacted as part of the John McCain National Defense Authorization Act for Fiscal Year 2019, Public Law 115-232 (Aug. 13, 2018), Part B of the proposed amendment would amend Appendix A (Statutory Index) and the Commentary to § 2M5.1 (Evasion of Export Controls; Financial Transactions with Countries Supporting International Terrorism). The current provisions of § 2M5.1, including the term “national security controls” used in subsection (a)(1), are mostly based on the statutory provisions of the Export Administration Act of 1979. As explained in the synopsis above, the Export Control Reform Act of 2018 repealed and replaced the 1979 Act and expanded the meaning of national security (to explicitly include the economic security of the United States as a component or element of national security), the types of items controlled (

e.g.,

emerging and foundational technologies), and the reasons for control (

e.g.,

persons and firms involved in activities contrary to national security or foreign policy interests). In addition, the agencies charged with administering and enforcing the Export Control Reform Act of 2018 are still making significant changes to what items are controlled and have increased the overall restrictions on export licensing. Accordingly, the Commission seeks general comment on whether any different or additional changes to the guidelines are required in response to the changes brought by the Export Control Reform Act of 2018. Specifically, should the Commission revise the base offense levels at § 2M5.1(a)? If so, what revision should the Commission make and why? Should the Commission add additional specific offense characteristics to § 2M5.1? If so, what should any such specific offense characteristic provide and why? For example, should the Commission provide a definition of the term “controls relating to national security”? Should the Commission include in the provisions of § 2M5.1 specific references to controls relating to foreign policy or economic interest of the United States or to certain end-users and entities?

2. Part B of the proposed amendment would also amend § 2M5.1 in response to the concerns raised by the Department of Justice and the Disruptive Technology Strike Force (an interagency collaboration between the Department of Justice's National Security Division and the Department of Commerce's Bureau of Industry and Security). The Commission invites general comment on the Department of Justice's and Disruptive Technology Strike Force's concerns discussed in the synopsis above. Are the changes to § 2M5.1 appropriate to address those concerns? Should the Commission provide additional or different guidance for applying § 2M5.1? Is there an alternative approach that the Commission should consider in response to the concerns raised by the Department of Justice and the Disruptive Technology Strike Force?

Synopsis of Proposed Amendment:

Part C of the proposed amendment responds to concerns raised by the Department of Justice relating to enhanced penalties under 31 U.S.C. 5322 (Criminal penalties) and covered by § 2S1.3 (Structuring Transactions to Evade Reporting Requirements; Failure to Report Cash or Monetary Transactions; Failure to File Currency and Monetary Instrument Report; Knowingly Filing False Reports; Bulk Cash Smuggling; Establishing or Maintaining Prohibited Accounts).

Section 5322 is a penalty provision for the substantive criminal offenses in subchapter II (Records and Reports on Monetary Instruments Transactions) of chapter 53 of title 31, United States Code. The provisions of this subchapter are the reporting requirements of the Bank Secrecy Act (BSA) and impose substantial compliance requirements on financial institutions. A simple violation of an offense in this subchapter is punishable by a five-year maximum term of imprisonment, a fine, or both under 31 U.S.C. 5322(a). However, if the offense also involved “violating another law of the United States or as part of a pattern of any illegal activity involving more than $100,000 in a 12-month period,” the maximum term of imprisonment increases to ten years as provided for at 31 U.S.C. 5322(b). Notably, other penalty provisions in subchapter II of chapter 53 of title 31, United States

Code, increase the maximum term of imprisonment if the offense involved “violating another law of the United States or as part of a pattern of any illegal activity involving more than $100,000 in a 12-month period.”

See

31 U.S.C. 5324(d) and 5336(h).

The majority of the substantive criminal offenses in subchapter II of chapter 53 of title 31, United States Code, including 31 U.S.C. 5322, 5324 and 5336, are referenced in Appendix A (Statutory Index) to § 2S1.3. Relevant to this issue, § 2S1.3(b)(2) provides for a 2-level enhancement if “the defendant (A) was convicted of an offense under subchapter II of chapter 53 of title 31, United States Code; and (B) committed the offense as part of a pattern of unlawful activity involving more than $100,000 in a 12-month period.” USSG § 2S1.3(b)(2).

During the 2022-2023 amendment cycle, the Department of Justice, in its letter addressing a proposed crime legislation amendment, noted that when the Commission promulgated § 2S1.3(b)(2) it did not include the additional factor set forth in 31 U.S.C. 5322(b) that qualifies a defendant for the enhanced penalty, which is when an individual commits an offense under subchapter II of chapter 53 of title 31, United States Code, “while violating another law of the United States.” At the time, the Commission expressed interest in addressing this miscellaneous issue during the 2023-2024 amendment cycle.

Part C of the proposed amendment would amend the specific offense characteristic at § 2S1.3(b)(2)(B) to reflect the additional enhanced penalty factor under 31 U.S.C. 5322(b), 5324(d), and 5336. Specifically, it would revise the 2-level enhancement at § 2S1.3(b)(2)(B) to also apply if the defendant committed the offense “while violating another law of the United States.”

Proposed Amendment:

Section 2S1.3(b)(2)(B) is amended by striking “committed the offense as part of a pattern of unlawful activity” and inserting “committed the offense while violating another law of the United States or as part of a pattern of unlawful activity”.

(D) Antitrust Offenses

Synopsis of Proposed Amendment:

Part D of the proposed amendment responds to concerns raised by the Department of Justice relating to the statutes referenced in Appendix A (Statutory Index) to § 2R1.1 (Bid-Rigging, Price-Fixing or Market-Allocation Agreements Among Competitors).

Section 2R1.1 is intended to apply to antitrust offenses, particularly offenses relating to agreements among competitors, such as horizontal price-fixing (including bid-rigging) and horizontal market-allocation, “that are intended to, and serve no purpose other than to, restrict output and raise prices, and that are so plainly anticompetitive that they have been recognized as illegal

per se, i.e.,

without any inquiry in individual cases as to their actual competitive effect.” USSG § 2R1.1, comment. (backg'd.).

In the original 1987

Guidelines Manual,

the only statute referenced in Appendix A to § 2R1.1 was 15 U.S.C. 1 (Trusts, etc., in restraint of trade illegal; penalty), a provision of the Sherman Antitrust Act of 1890 that prohibits any contract or combination in the form of a trust or otherwise (or any such conspiracy) in restraint of trade or commerce among the several states or with foreign nations. In 1990, the Commission amended Appendix A to reference 18 U.S.C. 1860 (Bids at land sales) to § 2R1.1.

See

Appendix C, amendment 359 (effective Nov. 1, 1990). Section 1860 prohibits bargaining, contracting, or agreeing, or attempting to bargain, contract, or agree with another person that such person shall not bid upon or purchase any parcel of lands of the United States offered at public sale. It also prohibits using intimidation, combination, or unfair management, to hinder, prevent, or attempt to hinder or prevent, any person from bidding upon or purchasing any tract of land so offered for sale.

In 2002, Congress amended 15 U.S.C. 3 to create a new criminal offense.

See

Section 14102 of the Antitrust Technical Corrections Act of 2002, Public Law 107-273 (Nov. 2, 2002). Prior to the Antitrust Technical Corrections Act of 2002, 15 U.S.C. 3 contained only one provision prohibiting any contract or combination in the form of trust or otherwise (or any such conspiracy) in restraint of trade or commerce in any territory of the United States or the District of Columbia. The Act redesignated the existing provision as subsection (a) and added a new criminal offense at a new subsection (b). Section 3(b) prohibits monopolization, attempts to monopolize, and combining or conspiring with another person to monopolize any part of the trade or commerce in or involving any territory of the United States or the District of Columbia. 15 U.S.C. 3(b).

In 2003, the Commission amended Appendix A to reference 15 U.S.C. 3(b) to § 2R1.1 and the Commentary to § 2R1.1 to reflect such reference.

See

Appendix C, amendment 661 (effective Nov. 1, 2003). The Commission did not include a reference in Appendix A to the then newly redesignated 15 U.S.C. 3(a). Section 3(a) is not currently referenced in Appendix A to any guideline.

The Department of Justice has raised a concern that Appendix A and § 2R1.1 contain inaccurate references to 15 U.S.C. 3(b). According to the Department of Justice, both Appendix A and the Commentary to § 2R1.1 lists 15 U.S.C. 3(b) as a statutory provision covered by § 2R1.1 when, in fact, the guideline should instead cover 15 U.S.C. 3(a). The Department of Justice indicates that, other than 15 U.S.C. 3(b), the statutes currently referenced in Appendix A to § 2R1.1 cover offenses relating to agreements or combinations in restraint of trade or commerce. Section 3(b) offenses address conduct relating to the acquisition or maintenance of monopoly power in a relevant market, which may be committed by a single entity and does not depend on agreement among competitors. According to the Department of Justice, these types of monopolization offenses are beyond the scope of § 2R1.1, as described in the Background Commentary, thus maintaining the Appendix A reference to the guideline has the potential to sow confusion in antitrust prosecutions. The Department of Justice suggests that the Commission replace the reference to 15 U.S.C. 3(b) in Appendix A and § 2R1.1 with a reference to 15 U.S.C. 3(a), which is the provision in section 3 that addresses offenses relating to agreements in restraint of trade or commerce and is more similar to the other offenses already covered by § 2R1.1.

Part D of the proposed amendment would amendment Appendix A and the Commentary to § 2R1.1 to replace the reference to 15 U.S.C. 3(b) with a reference to 15 U.S.C. 3(a). In addition, it would make technical changes to the Commentary to § 2R1.1, including the addition of headings to some application notes.

Proposed Amendment:

Appendix A (Statutory Index) is amended in the line referenced to 15 U.S.C. 3(b) by striking “§ 3(b)” and inserting “§ 3(a)”.

The Commentary to § 2R1.1 captioned “Statutory Provisions” is amended by striking “§§ 1, 3(b)” and inserting “§§ 1, 3(a)”.

The Commentary to § 2R1.1 captioned “Application Notes” is amended—

in Note 3 by inserting at the beginning the following new heading: “

Fines for Organizations.

—”;

in Note 4 by inserting at the beginning the following new heading: “

Another Consideration in Setting Fine.

—”;

in Note 5 by inserting at the beginning the following new heading: “

Use of Alternatives Other Than Imprisonment.

—”;

in Note 6 by inserting at the beginning the following new heading: “

Understatement of Seriousness.

—”;

and in Note 7 by inserting at the beginning the following new heading: “

Defendant with Previous Antitrust Convictions.

—”.

The Commentary to § 2R1.1 captioned “Background” is amended by striking “These guidelines apply” and inserting “This guideline applies”.

(E) Enhanced Penalties for Drug Offenders

Synopsis of Proposed Amendment: Part E of the proposed amendment addresses a miscellaneous issue regarding the application of the enhanced base offense levels at subsections (a)(1)-(a)(4) of § 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy).

The most common drug offenses that carry mandatory minimum penalties are set forth in 21 U.S.C. 841 and 960. Under both provisions, the mandatory minimum penalties are tied to the quantity and type of controlled substance involved in an offense. Enhanced mandatory minimum penalties are set forth in 21 U.S.C. 841(b) and 960(b) for defendants whose instant offense resulted in death or serious bodily injury,

who have prior convictions for certain specified offenses. Greater enhanced mandatory minimum penalties are provided for those defendants whose instant offense resulted in death or serious bodily injury

and

who have a qualifying prior conviction.

Section 2D1.1 provides specific base offense levels to reflect this enhanced penalty structure at § 2D1.1(a)(1)-(a)(4). Section 2D1.1(a)(1)(A) provides for a base offense level of 43 if “the defendant is convicted under 21 U.S.C. 841(b)(1)(A) or (b)(1)(B), or 21 U.S.C. 960(b)(1) or (b)(2), and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance and that the defendant committed the offense after one or more prior convictions for a serious drug felony or serious violent felony.” Similarly, § 2D1.1(a)(1)(B) provides for a base offense level of 43 if “the defendant is convicted under 21 U.S.C. 841(b)(1)(C) or 21 U.S.C. 960(b)(3) and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance and that the defendant committed the offense after one or more prior convictions for a felony drug offense.” Each of the six statutory provisions enumerated within § 2D1.1(a)(1)(A) and (B) require a mandatory term of life imprisonment for any defendant who has a qualifying prior offense and whose instant offense involved a substance that resulted in death or serious bodily injury.

Section 2D1.1(a)(2) provides for a base offense level of 38 “if the defendant is convicted under 21 U.S.C. 841(b)(1)(A), (b)(1)(B), or (b)(1)(C), or 21 U.S.C. 960(b)(1), (b)(2), or (b)(3), and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance.” Each of the six statutory provisions enumerated within § 2D1.1(a)(2) provides for a mandatory minimum term of imprisonment of not less than 20 years for a defendant whose instant offense involved a substance that resulted in death or serious bodily injury.

Section 2D1.1(a)(3) provides for a base offense level of 30 if “the defendant is convicted under 21 U.S.C. 841(b)(1)(E) or 21 U.S.C. 960(b)(5), and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance and that the defendant committed the offense after one or more prior convictions for a felony drug offense.” Both statutory provisions enumerated within § 2D1.1(a)(3) provide for an increased statutory maximum term of imprisonment of 30 years for any defendant who has a qualifying prior offense and whose instant offense involved a substance that resulted in death or serious bodily injury.

Section 2D1.1(a)(4) provides for a base offense level of 26 if “if the defendant is convicted under 21 U.S.C. 841(b)(1)(E) or 21 U.S.C. 960(b)(5), and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance.” Both statutory provisions enumerated within § 2D1.1(a)(4) provide for an increased statutory maximum term of imprisonment of 15 years for any defendant whose instant offense involved a substance that resulted in death or serious bodily injury.

The Commission has heard concerns that it is not clear whether the enhanced base offense levels at § 2D1.1(a)(1)-(a)(4) apply only when the defendant was convicted under the enhanced penalty provision of 21 U.S.C. 841 or 21 U.S.C. 960 because each statutory element was established, or whether they also apply whenever a defendant meets the applicable requirements, regardless of whether the defendant was in fact convicted under the enhanced penalty provision.

Part E of the proposed amendment would amend § 2D1.1(a)(1)-(4) to address these concerns. Two options are provided.

Option 1

would amend § 2D1.1(a)(1)-(4) to provide that the base offense levels in those provisions apply only if the defendant was convicted under 21 U.S.C. 841 or 21 U.S.C. 960, and was subject to a statutorily enhanced sentence under title 21, United States Code, for the offense of conviction because the specific statutory elements were established in accordance with the relevant provision in title 21, United States Code.

Option 2

would amend § 2D1.1(a)(1)-(4) so that the base offense levels in those provisions apply if the defendant was convicted under 21 U.S.C. 841 or 21 U.S.C. 960 and the offense involved the applicable requirements. However, § 2D1.1(a)(1) and (a)(3) would require that the fact that the offense was committed after one or more prior convictions for a serious drug felony, serious violent felony, or felony drug offense be established by the information filed by the government pursuant to 21 U.S.C. 851.

Proposed Amendment:

[Option 1:

Section 2D1.1(a) is amended by striking paragraphs (1) through (4) as follows:

“(1) 43, if—

(A) the defendant is convicted under 21 U.S.C. 841(b)(1)(A) or (b)(1)(B), or 21 U.S.C. 960(b)(1) or (b)(2), and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance and that the defendant committed the offense after one or more prior convictions for a serious drug felony or serious violent felony; or

(B) the defendant is convicted under 21 U.S.C. 841(b)(1)(C) or 21 U.S.C. 960(b)(3) and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance and that the defendant committed the offense after one or more prior convictions for a felony drug offense; or

(2) 38, if the defendant is convicted under 21 U.S.C. 841(b)(1)(A), (b)(1)(B), or (b)(1)(C), or 21 U.S.C. 960(b)(1), (b)(2), or (b)(3), and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance; or

(3) 30, if the defendant is convicted under 21 U.S.C. 841(b)(1)(E) or 21 U.S.C. 960(b)(5), and the offense of

conviction establishes that death or serious bodily injury resulted from the use of the substance and that the defendant committed the offense after one or more prior convictions for a felony drug offense; or

(4) 26, if the defendant is convicted under 21 U.S.C. 841(b)(1)(E) or 21 U.S.C. 960(b)(5), and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance; or”;

and by inserting the following new paragraphs (1) through (4):

“(1) 43, if—

(A) the defendant (i) is convicted under 21 U.S.C. 841(b)(1)(A) or (b)(1)(B), or 21 U.S.C. 960(b)(1) or (b)(2); and (ii) is subject to a statutorily enhanced sentence under title 21, United States Code, for the offense of conviction because (I) death or serious bodily injury resulted from the use of the substance; and (II) the defendant committed the offense after one or more prior convictions for a serious drug felony or serious violent felony, as established by the information filed by the government pursuant to 21 U.S.C. 851; or

(B) the defendant (i) is convicted under 21 U.S.C. 841(b)(1)(C) or 21 U.S.C. 960(b)(3); and (ii) is subject to a statutorily enhanced sentence under title 21, United States Code, for the offense of conviction because (I) death or serious bodily injury resulted from the use of the substance; and (II) the defendant committed the offense after one or more prior convictions for a felony drug offense, as established by the information filed by the government pursuant to 21 U.S.C. 851; or

(2) 38, if the defendant (A) is convicted under 21 U.S.C. 841(b)(1)(A), (b)(1)(B), or (b)(1)(C), or 21 U.S.C. 960(b)(1), (b)(2), or (b)(3); and (B) is subject to a statutorily enhanced sentence under title 21, United States Code, for the offense of conviction because death or serious bodily injury resulted from the use of the substance; or

(3) 30, if the defendant (A) is convicted under 21 U.S.C. 841(b)(1)(E) or 21 U.S.C. 960(b)(5); and (B) is subject to a statutorily enhanced sentence under title 21, United States Code, for the offense of conviction because (i) death or serious bodily injury resulted from the use of the substance; and (ii) the defendant committed the offense after one or more prior convictions for a felony drug offense, as established by the information filed by the government pursuant to 21 U.S.C. 851; or

(4) 26, if the defendant (A) is convicted under 21 U.S.C. 841(b)(1)(E) or 21 U.S.C. 960(b)(5); and (B) is subject to a statutorily enhanced sentence under title 21, United States Code, for the offense of conviction because death or serious bodily injury resulted from the use of the substance; or”.]

[Option 2:

Section 2D1.1(a) is amended by striking paragraphs (1) through (4) as follows:

“(1) 43, if—

(3) 30, if the defendant is convicted under 21 U.S.C. 841(b)(1)(E) or 21 U.S.C. 960(b)(5), and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance and that the defendant committed the offense after one or more prior convictions for a felony drug offense; or

and by inserting the following new paragraphs (1) through (4):

“(1) 43, if—

(A) (i) the defendant is convicted under 21 U.S.C. 841(b)(1)(A) or (b)(1)(B), or 21 U.S.C. 960(b)(1) or (b)(2); (ii) the offense involved death or serious bodily injury resulting from the use of the substance; and (iii) the defendant committed the offense after one or more prior convictions for a serious drug felony or serious violent felony, as established by the information filed by the government pursuant to 21 U.S.C. 851; or

(B) (i) the defendant is convicted under 21 U.S.C. 841(b)(1)(C) or 21 U.S.C. 960(b)(3); (ii) the offense involved death or serious bodily injury resulting from the use of the substance; and (iii) the defendant committed the offense after one or more prior convictions for a felony drug offense, as established by the information filed by the government pursuant to 21 U.S.C. 851; or

(2) 38, if (A) the defendant is convicted under 21 U.S.C. 841(b)(1)(A), (b)(1)(B), or (b)(1)(C), or 21 U.S.C. 960(b)(1), (b)(2), or (b)(3); and (B) the offense involved death or serious bodily injury resulting from the use of the substance; or

(3) 30, if (A) the defendant is convicted under 21 U.S.C. 841(b)(1)(E) or 21 U.S.C. 960(b)(5); (B) the offense involved death or serious bodily injury resulting from the use of the substance; and (C) the defendant committed the offense after one or more prior convictions for a felony drug offense, as established by the information filed by the government pursuant to 21 U.S.C. 851; or

(4) 26, if (A) the defendant is convicted under 21 U.S.C. 841(b)(1)(E) or 21 U.S.C. 960(b)(5); and (B) the offense involved death or serious bodily injury resulting from the use of the substance; or”.]

(F) “Sex Offense” Definition in § 4C1.1

Synopsis of Proposed Amendment:

Part F of the proposed amendment responds to concerns raised by the Department of Justice relating to the scope of the definition of “sex offense” in subsection (b)(2) of § 4C1.1 (Adjustment for Certain Zero-Point Offenders).

In 2023, the Commission added a new Chapter Four guideline, at § 4C1.1 (Adjustment for Certain Zero-Point Offenders), providing a decrease of 2 levels from the offense level determined under Chapters Two and Three for “zero-point” offenders who meet certain criteria.

See

USSG App. C, amendment 821 (effective Nov. 1, 2023). The 2-level adjustment for defendants with zero criminal history points at § 4C1.1 applies only if none of the exclusionary criteria set forth in subsections (a)(1) through (a)(10) apply. Among the exclusionary criteria is subsection (a)(5), requiring that “the [defendant's] instant offense of conviction is not a sex offense.” Section 4C1.1(b)(2) defines “sex offense” as “(A) an offense, perpetrated against a minor, under (i) chapter 109A of title 18, United States Code; (ii) chapter 110 of title 18, not including a recordkeeping offense; (iii) chapter 117 of title 18, not including transmitting information about a minor or filing a factual statement about an alien individual; or (iv) 18 U.S.C. 1591;

or (B) an attempt or a conspiracy to commit any offense described in subparagraphs (A)(i) through (iv) of this definition.”

The Department of Justice has raised a concern that the current definition of “sex offense” is too restrictive because it applies only to offenses perpetrated against minors. The Department of Justice first raised this issue during the 2022-2023 amendment cycle. In its letter addressing the proposed amendment on sexual abuse offenses, the Department of Justice noted that the restrictive definition of “sex offense” in the then-proposed § 4C1.1 would run counter to the Commission's then-proposed amendment to increase the base offense level from level 14 to level 18 at § 2A3.3 (Criminal Sexual Abuse of a Ward or Attempt to Commit Such Acts; Criminal Sexual Abuse of an Individual in Federal Custody).

Part F of the proposed amendment would amend § 4C1.2(b)(2) to broaden the definition of “sex offense.” Two options are provided.

Option 1

would revise the current definition of “sex offense” at § 4C1.1(b)(2) to also cover sexual abuse offenses against wards and individuals in federal custody under 18 U.S.C. 2243(b) and (c).

Option 2

would expand the definition of “sex offense” at § 4C1.1(b)(2) to cover all offenses described in the listed provisions instead of only to offenses perpetrated against minors.

Proposed Amendment:

[Option 1:

Section 4C1.1(b)(2) is amended by striking “ `Sex offense' means (A) an offense, perpetrated against a minor, under (i) chapter 109A of title 18, United States Code; (ii) chapter 110 of title 18, not including a recordkeeping offense; (iii) chapter 117 of title 18, not including transmitting information about a minor or filing a factual statement about an alien individual; or (iv) 18 U.S.C. 1591; or (B) an attempt or a conspiracy to commit any offense described in subparagraphs (A)(i) through (iv) of this definition”; and inserting: “ `Sex offense' means (A) an offense under 18 U.S.C. 2243(b) or (c); (B) an offense, perpetrated against a minor, under (i) chapter 109A of title 18, United States Code; (ii) chapter 110 of title 18, not including a recordkeeping offense; (iii) chapter 117 of title 18, not including transmitting information about a minor or filing a factual statement about an alien individual; or (iv) 18 U.S.C. 1591; or (C) an attempt or a conspiracy to commit any offense described in subparagraphs (A) and (B) of this definition”.]

[Option 2:

Section 4C1.1(b)(2) is amended by striking “ `Sex offense' means (A) an offense, perpetrated against a minor, under”; and inserting “ `Sex offense' means (A) an offense under”.]

6. Technical

Synopsis of Proposed Amendment:

This proposed amendment would make technical and other non-substantive changes to the

Guidelines Manual.

The proposed amendment contains two parts (Part A and Part B). The Commission is considering whether to promulgate either or both parts, as they are not mutually exclusive.

Technical and Conforming Changes Relating to § 4C1.1

See

USSG App. C, amendment 821 (effective Nov. 1, 2023). Part A of the proposed amendment would make technical and conforming changes relating to § 4C1.1.

First, Part A of the proposed amendment would amend § 4C1.1. The 2-level adjustment for defendants with zero criminal history points at § 4C1.1 applies only if none of exclusionary criteria set forth in subsections (a)(1) through (a)(10) applies. Among the exclusionary criteria is subsection (a)(10), requiring that “the defendant did not receive an adjustment under § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. 848.” Several provisions in § 4C1.1 track similar language found in the safety valve criteria at 18 U.S.C. 3553(f). In particular, § 4C1.1(a)(10) mirrors 18 U.S.C. 3553(f)(4), which provides as a requirement that “the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act.”

Historically, courts have generally interpreted 18 U.S.C. 3553(f)(4) as excluding a defendant from safety valve eligibility if such defendant had either an aggravating role or were engaged in a continuing criminal enterprise, given the otherwise exclusionary language beginning each phrase of subsection (f)(4) (

i.e.,

“the defendant was not . . .” and “. . . was not engaged in”). The Sixth and the Seventh Circuits have squarely addressed this issue and held that defendants are ineligible for safety valve relief if they either have an aggravating role or engaged in a continuing criminal enterprise, but that it is not required to demonstrate both.

See, e.g.,

United States

Bazel,

80 F.3d 1140, 1143 (6th Cir. 1996);

United States

Draheim,

958 F.3d 651, 660 (7th Cir. 2020).

The Commission intended § 4C1.1(b)(10) to track the safety valve criteria at 18 U.S.C. 3553(f)(4) and be applied by courts in the same way—namely, that a defendant is ineligible for the adjustment if the defendant meets either of the disqualifying conditions in the provision. Nevertheless, since promulgation of new § 4C1.1, several stakeholders have raised the question of whether the “and” in the subsection (a)(10) is conjunctive or disjunctive.

To address the confusion caused by the use of the word “and” in that provision, Part A of the proposed amendment would make technical changes to § 4C1.1 to divide subsection (a)(10) into two separate provisions, clarifying the Commission's intention that a defendant is ineligible for the adjustment if the defendant meets either of the disqualifying conditions listed in the provision.

Finally, Part A of the proposed amendment would make conforming changes relating to § 4C1.1 by adding necessary references to new Chapter Four, Part C (Adjustment for Certain Zero-Point Offenders) in subsection (a)(6) of § 1B1.1 (Application Instructions), the Introductory Commentary to Chapter Two (Offense Conduct), and the Commentary to §§ 3D1.1 (Procedure for Determining Offense Level on Multiple Counts) and 3D1.5 (Determining the Total Punishment). These guidelines and commentaries refer to the order in which the chapters of the

Guidelines Manual

should be applied.

Additional Technical and Clerical Changes

Part B of the proposed amendment would make technical and clerical changes to—

(1) the Commentary to § 1B1.1 (Application Instructions), to add headings to some application notes, provide stylistic consistency in how subdivisions are designated, and correct a typographical error;

(2) § 2B1.1 (Theft, Property Destruction, and Fraud), to provide consistency in the use of capitalization and how subdivisions are designated, and to correct a reference to the term “equity security”;

(3) the Commentary to § 2B1.6 (Aggravated Identity Theft), to correct

some typographical errors and provide stylistic consistency in how subdivisions are designated;

(4) § 2B3.1 (Robbery), to provide stylistic consistency in how subdivisions are designated and add headings to the application notes in the Commentary;

(5) § 2B3.2 (Extortion by Force or Threat of Injury or Serious Damage), to provide stylistic consistency in how subdivisions are designated and add headings to some application notes in the Commentary;

(6) § 2C1.8 (Making, Receiving, or Failing to Report a Contribution, Donation, or Expenditure in Violation of the Federal Election Campaign Act; Fraudulently Misrepresenting Campaign Authority; Soliciting or Receiving a Donation in Connection with an Election While on Certain Federal Property), to provide consistency in the use of capitalization;

(7) § 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses)), to provide stylistic consistency in how subdivisions are designated, make clerical changes to some controlled substances references in the Drug Conversion Tables at Application Note 8(D) and the Typical Weight Per Unit Table at Application Note 9, and correct a reference to a statute in the Background commentary;

(8) the Background Commentary to § 2D1.2 (Drug Offenses Occurring Near Protected Locations or Involving Underage or Pregnant Individuals; Attempt or Conspiracy), to correct a reference to a statute;

(9) the Commentary to § 2D1.5 (Continuing Criminal Enterprise; Attempt or Conspiracy), to add headings to application notes and correct a reference to a statutory provision;

(10) § 2E2.1 (Making or Financing an Extortionate Extension of Credit; Collecting an Extension of Credit by Extortionate Means), to provide stylistic consistency in how subdivisions are designated and add headings to the application notes in the Commentary;

(11) § 2E3.1 (Gambling Offenses; Animal Fighting Offenses), to provide stylistic consistency in how subdivisions are designated and correct a reference to a statutory provision in the Commentary;

(12) § 2H2.1 (Obstructing an Election or Registration), to provide stylistic consistency in how subdivisions are designated and add a heading to the application note in the Commentary;

(13) § 2K1.4 (Arson; Property Damage by Use of Explosives), to provide stylistic consistency in how subdivisions are designated;

(14) the Commentary to § 2K2.4 (Use of Firearm, Armor-Piercing Ammunition, or Explosive During or in Relation to Certain Crimes), to correct some typographical errors;

(15) the Commentary to § 2S1.1 (Laundering of Monetary Instruments; Engaging in Monetary Transactions in Property Derived from Unlawful Activity), to provide consistency in the use of capitalization and how subdivisions are designated;

(16) § 3B1.1 (Aggravating Role), to provide stylistic consistency in how subdivisions are designated, add headings to the application notes in the Commentary, and correct a typographical error;

(17) the Commentary to § 3D1.1 (Procedure for Determining Offense Level on Multiple Counts), to add a heading to an application note;

(18) § 4A1.1 (Criminal History Category), to provide stylistic consistency in how subdivisions are designated and correct the headings of the application notes in the Commentary;

(19) § 4A1.2 (Definitions and Instructions for Computing Criminal History), to provide stylistic consistency in how subdivisions are designated;

(20) the Commentary to § 5G1.2 (Sentencing on Multiple Counts of Conviction), to provide stylistic consistency in how subdivisions are designated, fix typographical errors in the Commentary, and update an example that references 18 U.S.C. 924(c) (which was amended by the First Step Act of 2018, Pub. L. 115-391 (2018));

(21) the Commentary to § 5K1.1 (Substantial Assistance to Authorities (Policy Statement)), to add headings to application notes and correct a typographical error;

(22) § 5K2.0 (Grounds for Departure (Policy Statement)), to correct a typographical error and provide stylistic consistency in how subdivisions are designated;

(23) § 5E1.2 (Fines for Individual Defendants), to provide stylistic consistency in how subdivisions are designated;

(24) § 5F1.6 (Denial of Federal Benefits to Drug Traffickers and Possessors), to provide consistency in the use of capitalization and add a heading to an application note in the Commentary;

(25) § 6A1.5 (Crime Victims' Rights (Policy Statement)), to provide consistency in the use of capitalization; and

(26) the Commentary to § 8B2.1 (Effective Compliance and Ethics Program), to provide consistency in the use of capitalization.

(A) Technical and Conforming Changes Relating to § 4C1.1

Proposed Amendment:

Section 4C1.1(a) is amended—

in paragraph (9) by striking “and”;

by striking paragraph (10) as follows:

“(10) the defendant did not receive an adjustment under § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. 848;”;

and by inserting at the end the following new paragraphs (10) and (11):

“(10) the defendant did not receive an adjustment under § 3B1.1 (Aggravating Role); and

(11) the defendant was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. 848;”.

Section 1B1.1(a)(6) is amended by striking “Part B of Chapter Four” and inserting “Parts B and C of Chapter Four”.

Chapter Two is amended in the Introductory Commentary by striking “Chapter Four, Part B (Career Offenders and Criminal Livelihood)” and inserting “Chapter Four, Parts B (Career Offenders and Criminal Livelihood) and C (Adjustment for Certain Zero-Point Offenders)”.

The Commentary to § 3D1.1 captioned “Background” is amended by striking “Chapter Four, Part B (Career Offenders and Criminal Livelihood)” and inserting “Chapter Four, Parts B (Career Offenders and Criminal Livelihood) and C (Adjustment for Certain Zero-P

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