Sentencing Guidelines for United States Courts

Federal RegisterJan 2, 2025

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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 proposed 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 3, 2025. Written reply comments, which may only respond to issues raised during the original comment period, should be received by the Commission not later than February 18, 2025. Public comment regarding a proposed amendment received after the close of the comment period, and reply comment received on issues not raised during the original 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 relating to § 4B1.2 (Definitions of Terms Used in Section 4B1.1), including amendments to (A) § 4B1.2 to eliminate the use of the categorical and modified categorical approaches by providing a definition for “crime of violence” that is based on a defendant's conduct and a definition of “controlled substance offense” that lists specific federal drug statutes; (B) the commentary to the guidelines that use the terms “crime of violence” and “controlled substance offense” and define these terms by making specific reference to § 4B1.2; and (C) related issues for comment.

(2) A two-part proposed amendment to § 2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition), including (A) amendments to § 2K2.1 to address its application to offenses involving machinegun conversion devices (MCDs), and related issues for comment; and (B) an amendment to § 2K2.1(b)(4) to establish a

mens rea

requirement for the enhancements for stolen firearms and firearms with modified serial numbers, and a related issue for comment.

(3) A two-part proposed amendment addressing certain circuit conflicts involving § 2B3.1 (Robbery) and § 4A1.2 (Definitions and Instructions for Computing Criminal History), including (A) three options for amending § 2B3.1(b)(4)(B) to address a circuit conflict concerning whether the “physically restrained” enhancement can be applied to situations in which a victim is restricted from moving at gunpoint but is not otherwise immobilized through physical measures such as those listed in the “physically restrained” definition set forth in the Commentary to § 1B1.1 (Application Instructions), and related issues for comment; and (B) an amendment to § 4A1.2(a)(2) to address a circuit conflict concerning whether a traffic stop is an “intervening arrest” for purposes of determining whether multiple prior sentences should be “counted separately or treated as a single sentence” when assigning criminal history points (“single-sentence rule”).

(4) 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-2025-amendments-federal-sentencing-guidelines-published-december-2024.

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. Career Offender

Synopsis of Proposed Amendment:

In August 2024, the Commission identified as one of its policy priorities for the amendment cycle ending May 1, 2025, “[s]implifying the guidelines and clarifying their role in sentencing,” including “revising the `categorical approach' for purposes of the career offender guideline.” U.S. Sent'g Comm'n, “Notice of Final Priorities,” 89 FR 66176 (Aug. 14, 2024).

The proposed amendment addresses recurrent criticism of the categorical approach and modified categorical approach, which courts have applied in the context of § 4B1.1 (Career Offender). It would eliminate the categorical approach when determining whether an offense qualifies as a crime of violence by providing a definition for “crime of violence” that is based on a defendant's conduct and a definition of “controlled substance offense” that is limited to specific federal drug statutes. These changes are intended to correct some of the “odd” and “arbitrary” results that the categorical approach has produced relating to the “crime of violence” definition (

see, e.g., United States

Davis,

875 F.3d 592, 595 (11th Cir. 2017);

United States

McCollum,

885 F.3d 300, 309-14 (4th Cir. 2018) (Traxler, J., concurring);

id.

(Wilkinson, J., dissenting)), and to provide a definition of “controlled substance offense” that is based on enumerated federal drug trafficking offenses.

The Categorical Approach as Developed by Supreme Court Jurisprudence

Several statutes and guidelines provide enhanced penalties for defendants convicted of offenses that meet the definition of a particular category of crimes. Courts typically determine whether a conviction fits within the definition of a particular category of crimes through the application of the “categorical approach” and “modified categorical approach,” as set forth by Supreme Court jurisprudence. The categorical and modified categorical approaches require courts to look only to the elements of the offense, rather than the particular facts underlying the conviction, to determine whether the offense meets the definition of a particular category of crimes. In applying the modified categorical approach, courts may look to certain additional sources of information, now commonly referred to as the “

Shepard

documents,” to determine the elements of the offense of conviction.

See Taylor

United States,

495 U.S. 575 (1990) (holding that, under the “categorical approach,” courts must compare the elements of the offense as described in the statute of conviction to the elements of the applicable definition of a particular category of crimes to determine if such offense criminalizes the same or a narrower range of conduct than the definition captures in order to serve as a predicate offense);

Shepard

United States,

544 U.S. 13 (2005) (holding that courts may use a “modified categorical approach” in cases where the statute of conviction is “overbroad,” that is, the statute contains multiple offenses with different offense elements).

Application of the Categorical Approach in the Guidelines

Supreme Court jurisprudence on this subject pertains to statutory provisions (

e.g.,

18 U.S.C. 924(e)), but courts have applied the categorical and modified categorical approaches to guideline provisions. For example, courts have used these approaches to determine if a conviction is a “crime of violence” or a “controlled substance offense” for purposes of applying the career offender guideline at § 4B1.1.

Commission data indicates that of the 64,124 individuals sentenced in fiscal year 2023, 1,351 individuals (2.1%) were sentenced under the career offender guideline. While representing a relatively small portion of the federal caseload each year, the categorical approach continues to result in substantial litigation.

General Criticism of the Categorical Approach as Developed by Supreme Court Jurisprudence

The Commission has received significant comment over the years regarding the complexity and limitations of the categorical approach, as developed by Supreme Court jurisprudence. Courts have criticized the categorical approach as a “legal fiction,” in which an offense that a defendant commits violently is deemed to be a non-violent offense because other defendants at other times could have been convicted of violating the same statute without violence, often leading to “odd” and “arbitrary” results (

e.g., United States

Davis,

875 F.3d 592, 595 (11th Cir. 2017);

United States

McCollum,

885 F.3d 300, 309-14 (4th Cir. 2018) (Traxler, J., concurring);

id.

(Wilkinson, J., dissenting)).

Feedback From Stakeholders

The Commission has also received input at roundtable discussions with several stakeholders with diverse perspective and expertise within the criminal justice system. Many stakeholders suggested that the Commission should eliminate the categorical approach to capture violent offenses that are currently excluded while also narrowing the scope of the “controlled substance offense” definition, particularly its reach over predicate offenses. Many stakeholders also recommend that the definition of “controlled substance offense” should only cover federal drug offenses and

exclude prior state drug offenses for purposes of the career offender guideline.

Many stakeholders have remarked that the Commission should limit the number of qualifying prior offenses overall for purposes the career offender guideline. Some stakeholders suggested that the Commission should condition which convictions qualify as predicate offenses by establishing a minimum sentence length threshold.

Proposed Changes to § 4B1.2

The proposed amendment would amend § 4B1.2 (Definitions of Terms Used in Section 4B1.1) in several ways.

First, the proposed amendment would move the definition of “controlled substance offense” from subsection (b) to subsection (a). It would also revise the definition of “controlled substance offense” to exclude state drug offenses from the scope of its application by listing specific federal statutes relating to drug offenses. The proposed amendment lists the federal statutes that are controlled substance offenses under the current definition to maintain the status quo with respect to federal drug trafficking statutes. The federal drug trafficking statutes that do not appear in brackets are specifically referenced in the career offender directive at 28 U.S.C. 994(h). The proposed amendment would also move to subsection (a) the provision currently located in Commentary to § 4B1.2 stating that a violation of 18 U.S.C. 924(c) or 929(a) is a “controlled substance offense” if the offense of conviction established that the underlying offense was a “controlled substance offense.”

Second, the proposed amendment would place all provisions related to “crime of violence” in subsection (b). It would define the term “crime of violence” based on the defendant's own offense conduct which, consistent with subsection (a)(1)(A) of § 1B1.3 (Relevant Conduct), is the conduct that the defendant committed, aided or abetted, counseled, commanded, induced, procured, or willfully caused during the commission of the offense, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense. It provides a list of types of qualifying conduct that includes a “force clause” at § 4B1.2(b)(1)(A) (which closely tracks the language of current § 4B1.2(a)(1) but would incorporate a parenthetical insert defining the term “physical force” as “force capable of causing physical pain or injury to another person”) and provisions relating to conduct that would constitute certain specific offenses that currently qualify as a “crime of violence,” such as forcible sex offenses, robbery, arson, and extortion. The proposed amendment would also include a provision at subsection (b)(2) that would allow certain inchoate offenses to still qualify as “crimes of violence.” In addition, the proposed amendment would require the government to make a prima facie showing that an offense is a “crime of violence” by using only a specific list of sources of information from the record.

Third, the proposed amendment sets forth three options for setting a minimum sentence length requirement for a prior conviction to qualify as a “crime of violence” or “controlled substance offense.” Option 1 would limit qualifying prior convictions to only convictions that are counted separately under § 4A1.1(a) [or (b)]. Option 2 would limit qualifying prior convictions to only convictions that resulted in a sentence imposed of [five years][three years][one year] or more that are counted separately under § 4A1.1(a) [or (b)]. Option 2 brackets the possibility of including a provision that provides that a conviction shall not qualify as a prior felony conviction under § 4B1.2 if the defendant can establish that the conviction resulted in a sentence for which the defendant served less than [three years] [two years][six months] in prison. Option 3 would limit qualifying prior convictions to only convictions that resulted in a sentence for which the defendant served [five years][three years][one year] or more in prison and that are counted separately under § 4A1.1(a) [or (b)]. All three options include two suboptions. Suboption A in each option would set the minimum sentence length requirement for purposes of both “crime of violence” and “controlled substance offense.” Suboption B in each option would set the minimum sentence length requirement for purposes of “crime of violence” only.

Changes to Other Guidelines

The current definitions of “crime of violence” and “controlled substance” at § 4B1.2 are incorporated by reference in several other guidelines in the

Guidelines Manual.

The proposed amendment would maintain the status quo by amending the Commentary to these guidelines to incorporate the relevant part or parts of § 4B1.2. The proposed amendment would make such changes 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), § 2S1.1 (Laundering of Monetary Instruments; Engaging in Monetary Transactions in Property Derived from Unlawful Activity), § 4A1.2 (Definitions and Instructions for Computing Criminal History), § 4B1.4 (Armed Career Criminal), § 5K2.17 (Semiautomatic Firearms Capable of Accepting Large Capacity Magazine (Policy Statement)), and § 7B1.1 (Classification of Violations (Policy Statement)).

Issues for comment are also provided.

Proposed Amendment

Section 4B1.2 is amended by striking the following:

“(a)

Crime of Violence.

—The term `crime of violence' means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. 5845(a) or explosive material as defined in 18 U.S.C. 841(c).

(b)

Controlled Substance Offense.

—The term `controlled substance offense' means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense; or

(2) is an offense described in 46 U.S.C. 70503(a) or § 70506(b).

(c)

Two Prior Felony Convictions.

—The term `two prior felony convictions' means (1) the defendant committed the instant offense of conviction subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense (

i.e.,

two felony convictions of a crime of violence, two felony convictions of a controlled substance offense, or one felony conviction of a crime of violence and one felony conviction of a controlled substance offense), and (2) the sentences for at least two of the aforementioned felony convictions are counted separately under the provisions of § 4A1.1(a), (b), or (c). The date that a defendant sustained a conviction shall be the date that the guilt of the defendant has been established, whether

by guilty plea, trial, or plea of

nolo contendere.

(d)

Inchoate Offenses Included.—

The terms `crime of violence' and `controlled substance offense' include the offenses of aiding and abetting, attempting to commit, or conspiring to commit any such offense.

(e)

Additional Definitions.

—

(1)

Forcible Sex Offense.

—`Forcible sex offense' includes where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced. The offenses of sexual abuse of a minor and statutory rape are included only if the sexual abuse of a minor or statutory rape was (A) an offense described in 18 U.S.C. 2241(c) or (B) an offense under state law that would have been an offense under section 2241(c) if the offense had occurred within the special maritime and territorial jurisdiction of the United States.

(2)

Extortion.

—`Extortion' is obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.

(3)

Robbery.

—`Robbery' is the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining. The phrase `actual or threatened force' refers to force that is sufficient to overcome a victim's resistance.

(4)

Prior Felony Conviction.

—`Prior felony conviction' means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed. A conviction for an offense committed at age eighteen or older is an adult conviction. 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).

Commentary

Application Notes:

Further Considerations Regarding `Crime of Violence' and `Controlled Substance Offense'.

—For purposes of this guideline—

Unlawfully possessing a listed chemical with intent to manufacture a controlled substance (21 U.S.C. 841(c)(1)) is a `controlled substance offense.'

Unlawfully possessing a prohibited flask or equipment with intent to manufacture a controlled substance (21 U.S.C. 843(a)(6)) is a `controlled substance offense.'

Maintaining any place for the purpose of facilitating a drug offense (21 U.S.C. 856) is a `controlled substance offense' if the offense of conviction established that the underlying offense (the offense facilitated) was a `controlled substance offense.'

Using a communications facility in committing, causing, or facilitating a drug offense (21 U.S.C. 843(b)) is a `controlled substance offense' if the offense of conviction established that the underlying offense (the offense committed, caused, or facilitated) was a `controlled substance offense.'

A violation of 18 U.S.C. 924(c) or § 929(a) is a `crime of violence' or a `controlled substance offense' if the offense of conviction established that the underlying offense was a `crime of violence' or a `controlled substance offense'. (Note that in the case of a prior 18 U.S.C. 924(c) or § 929(a) conviction, if the defendant also was convicted of the underlying offense, the sentences for the two prior convictions will be treated as a single sentence under § 4A1.2 (Definitions and Instructions for Computing Criminal History).)

Offense of Conviction as Focus of Inquiry.

—Section 4B1.1 (Career Offender) expressly provides that the instant and prior offenses must be crimes of violence or controlled substance offenses of which the defendant was convicted. Therefore, in determining whether an offense is a crime of violence or controlled substance for the purposes of § 4B1.1 (Career Offender), the offense of conviction (

i.e.,

the conduct of which the defendant was convicted) is the focus of inquiry.

Applicability of § 4A1.2.—

The provisions of § 4A1.2 (Definitions and Instructions for Computing Criminal History) are applicable to the counting of convictions under § 4B1.1.

Upward Departure for Burglary Involving Violence.

—There may be cases in which a burglary involves violence, but does not qualify as a `crime of violence' as defined in § 4B1.2(a) and, as a result, the defendant does not receive a higher offense level or higher Criminal History Category that would have applied if the burglary qualified as a `crime of violence.' In such a case, an upward departure may be appropriate.”;

and inserting the following:

“(a)

Controlled Substance Offense.

—

(1)

Definition.

—The term `controlled substance offense' means an offense under 21 U.S.C. 841, § 952(a), § 955, or § 959, or 46 U.S.C. 70503(a) or § 70506(b), [or 21 U.S.C. 843(a)(6), § 843(b), § 846 (if the object of the conspiracy or attempt was to commit an offense covered by this provision), § 856, § 860, § 960, or § 963 (if the object of the conspiracy or attempt was to commit an offense covered by this provision)].

(2)

Additional Consideration.

—A violation of 18 U.S.C. 924(c) or § 929(a) is a `controlled substance offense' if the offense of conviction established that the underlying offense was a `controlled substance offense.' (Note that in the case of a prior 18 U.S.C. 924(c) or § 929(a) conviction, if the defendant also was convicted of the underlying offense, the sentences for the two prior convictions will be treated as a single sentence under § 4A1.2 (Definitions and Instructions for Computing Criminal History).)

(b)

Crime of Violence.

—

(1)

Definition.

—The term `crime of violence' means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, in which the defendant engaged in any of the following conduct:

(A) The use, attempted use, or threatened use of physical force (

i.e.,

force capable of causing physical pain or injury to another person) against the person of another.

(B) A sexual act with a person where the person does not consent or gives consent that is not legally valid (such as involuntary, incompetent, or coerced consent). However, conduct constituting sexual abuse of a minor and statutory rape is included only if the defendant engaged in conduct that constitutes (i) an offense described in 18 U.S.C. 2241(c), or (ii) an offense under state law that would have been an offense under 18 U.S.C. 2241(c) if the offense had occurred within the special maritime and territorial jurisdiction of the United States.

(C) The unlawful taking or obtaining of personal property from a person, or in the presence of a person, against the person's will by means of actual or threatened force (

i.e.,

force that is sufficient to overcome a victim's resistance), or violence, or fear of injury against: (i) the person, the property of such person, or property in the custody

or possession of such person; (ii) a relative or family member of the person, or the property of such relative or family member; or (iii) anyone in the company of the person at the time of the taking or obtaining, or their property.

(D) The obtaining something of value from another by the wrongful use of (i) force, (ii) fear of physical injury, or (iii) threat of physical injury.

(E) The willful or malicious setting of fire to or burning of property.

(F) The use or unlawful possession of a firearm described in 26 U.S.C. 5845(a) or explosive materials as defined in 18 U.S.C. 841(c).

(2)

Covered Inchoate Offenses.

—An offense is a `crime of violence' if the defendant engaged in any of the conduct described in subsection (b)(1) regardless of whether the offense of conviction was for a substantive offense, aiding and abetting the commission of an offense, attempting to commit an offense, or conspiring to commit an offense.

(3)

Determination of Whether an Offense Is a `Crime of Violence'.

—In determining whether an offense is a `crime of violence,' the focus of inquiry is on the conduct that the defendant committed, aided or abetted, counseled, commanded, induced, procured, or willfully caused during the commission of the offense, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.

See

subsection (a)(1)(A) of § 1B1.3 (Relevant Conduct).

(4)

Sources of Information.

—In making a prima facie showing that the offense is a `crime of violence,' the government may only use the following sources of information from the record:

(A) The charging document.

(B) The jury instructions and accompanying verdict form.

(C) The plea agreement or transcript of colloquy between judge and defendant in which the factual basis of the guilty plea was confirmed by the defendant.

[(D) The judge's formal rulings of law or findings of fact.

(E) The judgment of conviction.

(F) Any explicit factual finding by the trial judge to which the defendant assented.]

(G) Any comparable judicial record of the sources described in paragraphs (A) through (F).

[

Option 1 for Subsection (c) (Limiting Prior Convictions to Sentences Receiving Points under § 4A1.1(a)

[

or (b)

]):

[

Suboption 1A (Limitation applicable to both “crime of violence” and “controlled substance offense”

(c)

Two Prior Felony Convictions.

—The term `two prior felony convictions' means: (1) the defendant committed the instant offense of conviction subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense (

i.e.,

two felony convictions of a crime of violence, two felony convictions of a controlled substance offense, or one felony conviction of a crime of violence and one felony conviction of a controlled substance offense); and (2) the sentences for at least two of the aforementioned felony convictions are counted separately under § 4A1.1(a) [or (b)]. The date that a defendant sustained a conviction shall be the date that the guilt of the defendant has been established, whether by guilty plea, trial, or plea of

nolo contendere.

]

[

Suboption 1B (Limitation applicable only to “crime of violence”

(c)

Two Prior Felony Convictions.

—The term `two prior felony convictions' means the defendant committed the instant offense of conviction subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense (

i.e.,

two felony convictions of a crime of violence, two felony convictions of a controlled substance offense, or one felony conviction of a crime of violence and one felony conviction of a controlled substance offense). The date that a defendant sustained a conviction shall be the date that the guilt of the defendant has been established, whether by guilty plea, trial, or plea of

nolo contendere.

[

Option 2 for Subsection (c) (Limiting Prior Convictions Through a Sentence-Imposed Approach

[

Suboption 2A (Limitation applicable to both “crime of violence” and “controlled substance offense”

(c)

Two Prior Felony Convictions.

i.e.,

two felony convictions of a crime of violence, two felony convictions of a controlled substance offense, or one felony conviction of a crime of violence and one felony conviction of a controlled substance offense); and (2) each of at least two of the aforementioned felony convictions (A) is counted separately under § 4A1.1(a) [or (b)], and (B) resulted in a sentence imposed of [five years][three years][one year] or more. The date that a defendant sustained a conviction shall be the date that the guilt of the defendant has been established, whether by guilty plea, trial, or plea of

nolo contendere.

For purposes of this provision, `sentence imposed' has the meaning given the term `sentence of imprisonment' in § 4A1.2(b) and Application Note 2 of the Commentary to § 4A1.2. The length of the sentence imposed includes any term of imprisonment given upon revocation of probation, parole, or supervised release, regardless of when the revocation occurred.

[A conviction shall not qualify as a prior felony conviction under this provision if the defendant can establish that the conviction resulted in a sentence for which the defendant served less than [three years] [two years][six months] in prison.]]

[

Suboption 2B (Limitation applicable only to “crime of violence”

(c)

Two Prior Felony Convictions.

i.e.,

two felony convictions of a crime of violence, two felony convictions of a controlled substance offense, or one felony conviction of a crime of violence and one felony conviction of a controlled substance offense). The date that a defendant sustained a conviction shall be the date that the guilt of the defendant has been established, whether by guilty plea, trial, or plea of

nolo contendere.

For purposes of determining whether the defendant sustained at least two felony convictions of either a crime of violence or a controlled substance offense, use only: (1) any such felony conviction of a `controlled substance offense' that is counted separately under § 4A1.1(a), (b), or (c); or (2) any such felony conviction of a `crime of violence' that (A) is counted separately under § 4A1.1(a) [or (b)], and (B) resulted in a sentence imposed of [five years][three years][one year] or more. For purposes of this provision, `sentence imposed' has the meaning given the term `sentence of imprisonment' in § 4A1.2(b) and Application Note 2 of the Commentary to § 4A1.2. The length of the sentence imposed includes any term of imprisonment given upon revocation of probation, parole, or supervised release, regardless of when the revocation occurred.

[A conviction of a crime of violence shall not qualify as a prior felony conviction under this provision if the defendant can establish that the conviction resulted in a sentence for which the defendant served less than [three years] [two years][six months] in prison.]]]

[

Option 3 for Subsection (c) (Limiting Prior Convictions Through a Time-Served Approach

[

Suboption 3A (Limitation applicable to both “crime of violence” and “controlled substance offense”

(c)

Two Prior Felony Convictions.

i.e.,

two felony convictions of a crime of violence, two felony convictions of a controlled substance offense, or one felony conviction of a crime of violence and one felony conviction of a controlled substance offense); and (2) each of at least two of the aforementioned felony convictions (A) is counted separately under § 4A1.1(a) [or (b)], and (B) resulted in a sentence for which the defendant served [five years][three years][one year] or more in prison. The date that a defendant sustained a conviction shall be the date that the guilt of the defendant has been established, whether by guilty plea, trial, or plea of

nolo contendere.

]

[

Suboption 3B (Limitation applicable only to “crime of violence”

(c)

Two Prior Felony Convictions.

i.e.,

two felony convictions of a crime of violence, two felony convictions of a controlled substance offense, or one felony conviction of a crime of violence and one felony conviction of a controlled substance offense). The date that a defendant sustained a conviction shall be the date that the guilt of the defendant has been established, whether by guilty plea, trial, or plea of

nolo contendere.

(d)

Prior Felony Conviction.

—`Prior felony conviction' means a prior adult conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed. A conviction for an offense committed at age eighteen or older is an adult conviction. 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).

Commentary

Application Note:

Conduct Constituting Robbery and Extortion Offenses.

—The Commission anticipates that subsection (b)(1)(A) will be sufficient to include as crimes of violence conduct that would constitute most robbery and extortion offenses that involve violence. Subsections (b)(1)(C) and (b)(1)(D) are included to provide clarity and ease of application.

Background:

Section 4B1.2 defines the terms `crime of violence,' `controlled substance offense,' and `two prior felony convictions.' Prior to [amendment year], to determine if an offense met the definition of `crime of violence' or `controlled substance offense' in § 4B1.2, courts used the categorical approach and the modified categorical approach, as set forth in Supreme Court jurisprudence.

See, e.g., Taylor

United States,

495 U.S. 575 (1990);

Shepard

United States,

544 U.S. 13 (2005);

Descamps

United States,

570 U.S. 254 (2013);

Mathis

United States,

579 U.S. 500 (2016). These Supreme Court cases, however, involved statutory provisions (

e.g.,

18 U.S.C. 924(e)) rather than guideline provisions.

In [amendment year], the Commission amended § 4B1.2 to eliminate the use of the categorical approach and modified categorical approach established by Supreme Court jurisprudence for purposes of determining whether an offense is a `crime of violence' or a `controlled substance offense' in § 4B1.2.

See

USSG App. C, Amendment [__] (effective [Date]). Section 4B1.2 provides a list of the federal drug statutes that qualify as a `controlled substance offense.' The approach set out in the guideline for determining whether an offense of conviction is a `crime of violence' allows a court to consider the conduct of the defendant underlying the offense of conviction. The approach set forth by this guideline requires the court to consider the defendant's own conduct and conduct that the defendant aided or abetted, counseled, commanded, induced, procured, or willfully caused. The government must make a prima facie showing that an offense of conviction is a `crime of violence' only by using the limited list of sources of information, commonly referred to as the `

Shepard

documents,' that Supreme Court jurisprudence has determined is permissible to determine whether a conviction fits within the definition of a particular category of crimes.”.

The Commentary to § 2K1.3 captioned “Application Notes” is amended in Note 2 by striking the following:

“For purposes of this guideline:

`Controlled substance offense' has the meaning given that term in § 4B1.2(b) and Application Note 1 of the Commentary to § 4B1.2 (Definitions of Terms Used in Section 4B1.1).

`Crime of violence' has the meaning given that term in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2.

`Felony conviction' means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed. A conviction for an offense committed at age eighteen years or older is an adult conviction. 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).”;

and inserting the following:

“

Definitions for Purposes of Subsections (a)(1) and (a)(2).

—

(A)

Crime of Violence.—

(i)

Definition.

—`Crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that (I) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (II) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm

described in 26 U.S.C. 5845(a) or explosive material as defined in 18 U.S.C. 841(c).

(ii)

Additional Considerations.

—

(I) The term `crime of violence' includes the offenses of aiding and abetting, attempting to commit, or conspiring to commit any such offense.

(II) `Forcible sex offense' includes where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced. The offenses of sexual abuse of a minor and statutory rape are included only if the sexual abuse of a minor or statutory rape was (aa) an offense described in 18 U.S.C. 2241(c) or (bb) an offense under state law that would have been an offense under section 2241(c) if the offense had occurred within the special maritime and territorial jurisdiction of the United States.

(III) `Extortion' is obtaining something of value from another by the wrongful use of (aa) force, (bb) fear of physical injury, or (cc) threat of physical injury.

(IV) `Robbery' is the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining. The phrase `actual or threatened force' refers to force that is sufficient to overcome a victim's resistance.

(V) A violation of 18 U.S.C. 924(c) or § 929(a) is a `crime of violence' if the offense of conviction established that the underlying offense was a ‘crime of violence’. (Note that in the case of a prior 18 U.S.C. 924(c) or § 929(a) conviction, if the defendant also was convicted of the underlying offense, the sentences for the two prior convictions will be treated as a single sentence under § 4A1.2 (Definitions and Instructions for Computing Criminal History).)

(VI) In determining whether an offense is a crime of violence, the offense of conviction (

i.e.,

the conduct of which the defendant was convicted) is the focus of inquiry.

(B)

Controlled Substance Offense.

—

(i)

Definition.

—`Controlled substance offense' means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that (I) prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense; or (II) is an offense described in 46 U.S.C. 70503(a) or § 70506(b).

(ii)

Additional Considerations.

—

(I) The term `controlled substance offense' include the offenses of aiding and abetting, attempting to commit, or conspiring to commit any such offense.

(II) Unlawfully possessing a listed chemical with intent to manufacture a controlled substance (21 U.S.C. 841(c)(1)) is a `controlled substance offense.'

(III) Unlawfully possessing a prohibited flask or equipment with intent to manufacture a controlled substance (21 U.S.C. 843(a)(6)) is a `controlled substance offense.'

(IV) Maintaining any place for the purpose of facilitating a drug offense (21 U.S.C. 856) is a `controlled substance offense' if the offense of conviction established that the underlying offense (the offense facilitated) was a `controlled substance offense.'

(V) Using a communications facility in committing, causing, or facilitating a drug offense (21 U.S.C. 843(b)) is a `controlled substance offense' if the offense of conviction established that the underlying offense (the offense committed, caused, or facilitated) was a `controlled substance offense.'

(VI) A violation of 18 U.S.C. 924(c) or § 929(a) is a `controlled substance offense' if the offense of conviction established that the underlying offense was a `controlled substance offense.' (Note that in the case of a prior 18 U.S.C. 924(c) or § 929(a) conviction, if the defendant also was convicted of the underlying offense, the sentences for the two prior convictions will be treated as a single sentence under § 4A1.2 (Definitions and Instructions for Computing Criminal History).)

(VII) In determining whether an offense is a controlled substance offense, the offense of conviction (

i.e.,

the conduct of which the defendant was convicted) is the focus of inquiry.

(C)

Felony Conviction.

—`Felony conviction' means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed. A conviction for an offense committed at age eighteen years or older is an adult conviction. 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 by striking the following:

” `Controlled substance offense' has the meaning given that term in § 4B1.2(b) and Application Note 1 of the Commentary to § 4B1.2 (Definitions of Terms Used in Section 4B1.1).

`Crime of violence' has the meaning given that term in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2.”;

by redesignating Notes 3 through 14 as Notes 4 through 15, respectively;

by inserting after Note 2 the following new Note 3:

“3.

`Crime of Violence' and `Controlled Substance Offense'.

—

(A)

Crime of Violence.

—

(i)

Definition.

—`Crime of violence' means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that (I) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (II) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. 5845(a) or explosive material as defined in 18 U.S.C. 841(c).

(ii)

Additional Considerations.

—

(I) The term `crime of violence' includes the offenses of aiding and abetting, attempting to commit, or conspiring to commit any such offense.

(III) `Extortion' is obtaining something of value from another by the wrongful use of (aa) force, (bb) fear of physical injury, or (cc) threat of physical injury.

custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining. The phrase `actual or threatened force' refers to force that is sufficient to overcome a victim's resistance.

(V) A violation of 18 U.S.C. 924(c) or § 929(a) is a `crime of violence' if the offense of conviction established that the underlying offense was a `crime of violence.' (Note that in the case of a prior 18 U.S.C. 924(c) or § 929(a) conviction, if the defendant also was convicted of the underlying offense, the sentences for the two prior convictions will be treated as a single sentence under § 4A1.2 (Definitions and Instructions for Computing Criminal History).)

(VI) In determining whether an offense is a crime of violence, the offense of conviction (

i.e.,

the conduct of which the defendant was convicted) is the focus of inquiry.

(B)

Controlled Substance Offense.

—

(i)

Definition.

(ii)

Additional Considerations.

—

(I) The term `controlled substance offense' include the offenses of aiding and abetting, attempting to commit, or conspiring to commit any such offense.

(II) Unlawfully possessing a listed chemical with intent to manufacture a controlled substance (21 U.S.C. 841(c)(1)) is a `controlled substance offense.'

(III) Unlawfully possessing a prohibited flask or equipment with intent to manufacture a controlled substance (21 U.S.C. 843(a)(6)) is a `controlled substance offense.'

(VII) In determining whether an offense is a controlled substance offense, the offense of conviction (

i.e.,

the conduct of which the defendant was convicted) is the focus of inquiry.”;

in Note 12 (as so redesignated) by striking “

see

Application Note 7” and inserting “

see

Application Note 8”;

and in Note 14 (as so redesignated) by striking the following:

” `Crime of violence' and `controlled substance offense' have the meaning given those terms in § 4B1.2 (Definitions of Terms Used in Section 4B1.1).”.

The Commentary to § 2S1.1 captioned “Application Notes” is amended—

in Note 1 by striking the following:

” `Crime of violence' has the meaning given that term in subsection (a)(1) of § 4B1.2 (Definitions of Terms Used in Section 4B1.1).”;

by redesignating Notes 4, 5, and 6 as Notes 5, 6, and 7;

and by inserting after Note 3 the following new Note 4:

“4.

`Crime of Violence' under Subsection (b)(1).

—

(A)

Definition.

—For purposes of subsection (b)(1), `crime of violence' means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that has as an element the use, attempted use, or threatened use of physical force against the person of another.

(B)

Additional Considerations.

—

(i) The term `crime of violence' includes the offenses of aiding and abetting, attempting to commit, or conspiring to commit any such offense.

(ii) A violation of 18 U.S.C. 924(c) or § 929(a) is a `crime of violence' if the offense of conviction established that the underlying offense was a `crime of violence.' (Note that in the case of a prior 18 U.S.C. 924(c) or § 929(a) conviction, if the defendant also was convicted of the underlying offense, the sentences for the two prior convictions will be treated as a single sentence under § 4A1.2 (Definitions and Instructions for Computing Criminal History).)

(iii) In determining whether an offense is a crime of violence, the offense of conviction (

i.e.,

the conduct of which the defendant was convicted) is the focus of inquiry.”.

The Commentary to § 4A1.1 captioned “Application Notes” is amended in Note 4 by striking ” `crime of violence' has the meaning given that term in § 4B1.2(a).

See

§ 4A1.2(p)” and inserting ” `crime of violence' has the meaning given that term in § 4A1.2(p)”.

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

“For the purposes of § 4A1.1(d), the definition of `crime of violence' is that set forth in § 4B1.2(a).”;

and inserting the following:

“(1)

Definition.

—For purposes § 4A1.1(d), `crime of violence' means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that (A) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (B) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. 5845(a) or explosive material as defined in 18 U.S.C. 841(c).

(2)

Additional Considerations.

—

(A) The term `crime of violence' includes the offenses of aiding and abetting, attempting to commit, or conspiring to commit any such offense.

(B) `Forcible sex offense' includes where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced. The offenses of sexual abuse of a minor and statutory rape are included only if the sexual abuse of a minor or statutory rape was (i) an offense described in 18 U.S.C. 2241(c) or (ii) an offense under state law that would have been an offense under section 2241(c) if the offense had occurred within the special maritime and territorial jurisdiction of the United States.

(C) `Extortion' is obtaining something of value from another by the wrongful use of (i) force, (ii) fear of physical injury, or (iii) threat of physical injury.

(D) `Robbery' is the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining. The phrase `actual or threatened force' refers to force that is sufficient to overcome a victim's resistance.

(E) A violation of 18 U.S.C. 924(c) or § 929(a) is a `crime of violence' if the offense of conviction established that the underlying offense was a `crime of violence.' (Note that in the case of a prior 18 U.S.C. 924(c) or § 929(a) conviction, if the defendant also was convicted of the underlying offense, the sentences for the two prior convictions will be treated as a single sentence under § 4A1.2 (Definitions and Instructions for Computing Criminal History).)

(F) In determining whether an offense is a crime of violence, the offense of conviction (

i.e.,

the conduct of which the defendant was convicted) is the focus of inquiry.”.

Section 4B1.4(b)(3) is amended by striking “either a crime of violence, as defined in § 4B1.2(a), or a controlled substance offense, as defined in § 4B1.2(b)” and inserting “either a crime of violence or a controlled substance offense”.

Section 4B1.4(c)(2) is amended by striking “either a crime of violence, as defined in § 4B1.2(a), or a controlled substance offense, as defined in § 4B1.2(b)” and inserting “either a crime of violence or a controlled substance offense”.

The Commentary to § 4B1.4 captioned “Application Notes” is amended by inserting at the end the following new Note 3:

“3.

`Crime of Violence' and `Controlled Substance Offense'.

—

(A)

Crime of Violence.

—

(i)

Definition.

(ii)

Additional Considerations.

—

(I) The term `crime of violence' includes the offenses of aiding and abetting, attempting to commit, or conspiring to commit any such offense.

(III) `Extortion' is obtaining something of value from another by the wrongful use of (aa) force, (bb) fear of physical injury, or (cc) threat of physical injury.

(VI) In determining whether an offense is a crime of violence, the offense of conviction (

i.e.,

the conduct of which the defendant was convicted) is the focus of inquiry.

(B)

Controlled Substance Offense.

—

(i) Definition.—`Controlled substance offense' means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that (I) prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense; or (II) is an offense described in 46 U.S.C. 70503(a) or § 70506(b).

(ii)

Additional Considerations.

—

(I) The term `controlled substance offense' include the offenses of aiding and abetting, attempting to commit, or conspiring to commit any such offense.

(II) Unlawfully possessing a listed chemical with intent to manufacture a controlled substance (21 U.S.C. 841(c)(1)) is a `controlled substance offense.'

(III) Unlawfully possessing a prohibited flask or equipment with intent to manufacture a controlled substance (21 U.S.C. 843(a)(6)) is a `controlled substance offense.'

(VII) In determining whether an offense is a controlled substance offense, the offense of conviction (

i.e.,

the conduct of which the defendant was convicted) is the focus of inquiry.”.

The Commentary to § 5K2.17 captioned “Application Notes” is amended—

in the caption by striking “Note” and inserting “Notes”;

by striking Note 1 as follows:

“1. `Crime of violence' and `controlled substance offense' are defined in § 4B1.2 (Definitions of Terms Used in Section 4B1.1).”;

and by inserting the following new Notes 1 and 2:

“1.

Crime of Violence.

—

(A)

Definition.

—`Crime of violence' means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. 5845(a) or explosive material as defined in 18 U.S.C. 841(c).

(B)

Additional Considerations.

—

(i) The term `crime of violence' includes the offenses of aiding and abetting, attempting to commit, or conspiring to commit any such offense.

(ii) `Forcible sex offense' includes where consent to the conduct is not

given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced. The offenses of sexual abuse of a minor and statutory rape are included only if the sexual abuse of a minor or statutory rape was (I) an offense described in 18 U.S.C. 2241(c) or (II) an offense under state law that would have been an offense under section 2241(c) if the offense had occurred within the special maritime and territorial jurisdiction of the United States.

(iii) `Extortion' is obtaining something of value from another by the wrongful use of (I) force, (II) fear of physical injury, or (III) threat of physical injury.

(iv) `Robbery' is the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining. The phrase `actual or threatened force' refers to force that is sufficient to overcome a victim's resistance.

(v) A violation of 18 U.S.C. 924(c) or § 929(a) is a `crime of violence' if the offense of conviction established that the underlying offense was a `crime of violence.' (Note that in the case of a prior 18 U.S.C. 924(c) or § 929(a) conviction, if the defendant also was convicted of the underlying offense, the sentences for the two prior convictions will be treated as a single sentence under § 4A1.2 (Definitions and Instructions for Computing Criminal History).)

(vi) In determining whether an offense is a crime of violence, the offense of conviction (

i.e.,

the conduct of which the defendant was convicted) is the focus of inquiry.

Controlled Substance Offense.

—

(A)

Definition.

—`Controlled substance offense' means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that (i) prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense; or (ii) is an offense described in 46 U.S.C. 70503(a) or § 70506(b).

(B)

Additional Considerations.

—

(i) The term `controlled substance offense' include the offenses of aiding and abetting, attempting to commit, or conspiring to commit any such offense.

(ii) Unlawfully possessing a listed chemical with intent to manufacture a controlled substance (21 U.S.C. 841(c)(1)) is a `controlled substance offense.'

(iii) Unlawfully possessing a prohibited flask or equipment with intent to manufacture a controlled substance (21 U.S.C. 843(a)(6)) is a `controlled substance offense.'

(iv) Maintaining any place for the purpose of facilitating a drug offense (21 U.S.C. 856) is a `controlled substance offense' if the offense of conviction established that the underlying offense (the offense facilitated) was a `controlled substance offense.'

(v) Using a communications facility in committing, causing, or facilitating a drug offense (21 U.S.C. 843(b)) is a `controlled substance offense' if the offense of conviction established that the underlying offense (the offense committed, caused, or facilitated) was a `controlled substance offense.'

(vi) A violation of 18 U.S.C. 924(c) or § 929(a) is a `controlled substance offense' if the offense of conviction established that the underlying offense was a `controlled substance offense.' (Note that in the case of a prior 18 U.S.C. 924(c) or § 929(a) conviction, if the defendant also was convicted of the underlying offense, the sentences for the two prior convictions will be treated as a single sentence under § 4A1.2 (Definitions and Instructions for Computing Criminal History).)

(vii) In determining whether an offense is a controlled substance offense, the offense of conviction (

i.e.,

the conduct of which the defendant was convicted) is the focus of inquiry.”.

The Commentary to § 7B1.1 captioned “Application Notes” is amended—

in Note 2 by striking the following:

“ `Crime of violence' is defined in § 4B1.2 (Definitions of Terms Used in Section 4B1.1). See § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2.”;

and inserting the following:

“

Crime of Violence.

—

(A)

Definition.

(B)

Additional Considerations.

—

(i) The term `crime of violence' includes the offenses of aiding and abetting, attempting to commit, or conspiring to commit any such offense.

(ii) `Forcible sex offense' includes where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced. The offenses of sexual abuse of a minor and statutory rape are included only if the sexual abuse of a minor or statutory rape was (I) an offense described in 18 U.S.C. 2241(c) or (II) an offense under state law that would have been an offense under section 2241(c) if the offense had occurred within the special maritime and territorial jurisdiction of the United States.

(iii) `Extortion' is obtaining something of value from another by the wrongful use of (I) force, (II) fear of physical injury, or (III) threat of physical injury.

(vi) In determining whether an offense is a crime of violence, the offense of conviction (

i.e.,

the conduct of which the defendant was convicted) is the focus of inquiry.”;

and in Note 3 by striking the following:

“ `Controlled substance offense' is defined in § 4B1.2 (Definitions of Terms Used in Section 4B1.1).

See

§ 4B1.2(b) and Application Note 1 of the Commentary to § 4B1.2.”;

and inserting the following:

“

Controlled Substance Offense.

—

(A)

Definition.

—`Controlled substance offense' means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that (i) prohibits the manufacture,

import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense; or (ii) is an offense described in 46 U.S.C. 70503(a) or § 70506(b).

(B) Additional Considerations.—

(i) The term `controlled substance offense' include the offenses of aiding and abetting, attempting to commit, or conspiring to commit any such offense.

(ii) Unlawfully possessing a listed chemical with intent to manufacture a controlled substance (21 U.S.C. 841(c)(1)) is a `controlled substance offense.'

(iii) Unlawfully possessing a prohibited flask or equipment with intent to manufacture a controlled substance (21 U.S.C. 843(a)(6)) is a `controlled substance offense.'

(vii) In determining whether an offense is a controlled substance offense, the offense of conviction (

i.e.,

the conduct of which the defendant was convicted) is the focus of inquiry.”.

Issues for Comment

1. As explained above, courts use the “categorical approach” and the “modified categorical approach,” as set forth in Supreme Court jurisprudence, to determine whether a conviction is a “crime of violence” or a “controlled substance offense” for purposes of § 4B1.2 (Definitions of Terms Used in Section 4B1.1). These Supreme Court cases, however, involved statutory provisions (

e.g.,

18 U.S.C. 924(e)) rather than guideline provisions.

The Commission seeks comment on whether determinations under the career offender guideline should use a different approach, such as the approach provided above, that permits the court to consider the defendant's conduct underlying the offense of conviction for purposes of the “crime of violence” definition. What are the advantages and disadvantages of the “categorical approach” as opposed to the approach set forth in the proposed amendment above?

2. The proposed amendment provides that courts may consider the full scope of the defendant's conduct under subsection (a)(1)(A) of § 1B1.3 (Relevant Conduct) (

i.e.,

“all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant . . . 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”) for purposes of the “crime of violence” definition. Should the focus of the inquiry be limited to the conduct that formed the basis of the conviction? If not, should the Commission limit the consideration of the defendant's conduct in some other way? If so, how should the Commission set forth such limitation? Should the Commission limit the consideration of the defendant's conduct only to such acts and omissions that occurred “during the commission of the offense of conviction” and exclude conduct “in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense” or make any other changes?

3. The proposed amendment would revise the definition of “controlled substance offense” in § 4B1.2 to exclude state drug offenses by listing specific federal statutes relating to drug offenses. The proposed amendment lists the federal statutes that are controlled substance offenses under the current definition to maintain the status quo. The federal drug trafficking statutes that do not appear in brackets are specifically referenced in the career offender directive at 28 U.S.C. 994(h). Are there federal drug offenses that are covered by the proposed amendment but should not be? Are there federal drug offenses that are not covered by the proposed amendment but should be?

The Commission also seeks comment on whether, instead of excluding state drug offenses, it should limit the definition of “controlled substance offense” in some other way. For example, should the Commission keep the current definition of “controlled substance offense” and limit qualifying prior convictions to only convictions that received a certain number of criminal history points or a certain length of sentence imposed or served? If so, how should the Commission set that limit and why?

4. The definition of “crime of violence” set forth in the proposed amendment above includes a “force clause” proposed at § 4B1.2(b)(1)(A). The provision closely tracks the language of current § 4B1.2(a)(1) but would incorporate a parenthetical insert defining the term “physical force” as “force capable of causing physical pain or injury to another person.” The Commission seeks comment on whether this definition is appropriate.

The definition of “crime of violence” also includes provisions relating to conduct that would constitute certain specific offenses that currently qualify as a “crime of violence,” such forcible sex offenses, robbery, arson, and extortion. The Commission seeks comment on whether the force clause set forth in proposed § 4B1.2(b)(1)(A) would be sufficient to cover the other types of conduct specifically listed in the “crime of violence” definition. Specifically, the Commission seeks comment on whether the force clause would cover conduct constituting robbery and extortion offenses.

5. The definition of “crime of violence” includes a provision relating to forcible sexual acts at proposed § 4B1.2(b)(1)(B). The Commission seeks comment generally on whether the scope of this provision for purposes of the “crime of violence” definition is appropriate.

6. The “crime of violence” definition includes a provision that would cover conduct constituting an arson offense at proposed § 4B1.2(b)(1)(E). The Commission seeks comment generally on whether the proposed provision is appropriate.

7. The Commission seeks comment on whether the definition of “crime of violence” should still address the offenses of attempting to commit a substantive offense and conspiracy to commit a substantive offense. Should the Commission provide additional requirements or guidance to address these types of offenses?

8. The proposed amendment would require the government to make a prima facie showing that an offense is a “crime of violence” only by using a specific list of sources of information from the record. The sources of information that do not appear within brackets in the proposed amendment are specifically

identified in

Shepard

United States,

544 U.S. 13 (2005), for use in the modified categorical approach. The sources of information listed within brackets are comparable judicial documents identified in subsequent case law for the same purpose.

The Commission seeks comment on whether it should limit the sources of information that the government needs to make a prima facie showing that an offense of conviction is a “crime of violence.” Should the Commission list specific sources or types of sources that courts may consider in addition to the sources listed in the proposed amendment? If so, what documents or types of information should be included in this list? Are there any documents or types of information that should be excluded?

9. The proposed amendment sets forth three options for setting a minimum sentence length requirement for a prior conviction to qualify as a “crime of violence” or “controlled substance offense.” The Commission seeks comment on whether including a minimum sentence length requirement for prior offenses to qualify as a “crime of violence” or “controlled substance offense” is consistent with the Commission's authority under 28 U.S.C. 994(h). The Commission also seeks comment on each of these options and suboptions. Should the Commission differentiate between “crimes of violence” and “controlled substance offenses” in setting a minimum sentence length requirement?

10. As indicated above, several guidelines use the terms “crime of violence” and “controlled substance offense” and define these terms by making specific reference to § 4B1.2.

See

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), § 2S1.1 (Laundering of Monetary Instruments; Engaging in Monetary Transactions in Property Derived from Unlawful Activity), § 4A1.2 (Definitions and Instructions for Computing Criminal History), § 4B1.4 (Armed Career Criminal), § 5K2.17 (Semiautomatic Firearms Capable of Accepting Large Capacity Magazine (Policy Statement)), and § 7B1.1 (Classification of Violations (Policy Statement)).

The proposed amendment would maintain the status quo by amending the Commentary to these guidelines to incorporate the relevant part or parts of § 4B1.2. The Commission seeks comment on whether this is the appropriate approach or, in the alternative, whether any or all of these guidelines should continue to define the terms “crime of violence” and “controlled substance offense” by making specific references to § 4B1.2 if the Commission were to promulgate the proposed amendment making changes to the definitions contained in § 4B1.2. Should the Commission consider moving these definitions from the commentary of these guidelines to the guidelines themselves?

2. Firearms Offenses

Synopsis of Proposed Amendment:

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

Part A of the proposed amendment addresses the application of § 2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) to machinegun conversion devices (MCDs), which are designed to convert weapons to fully automatic firearms. Issues for comment are also provided.

Part B of the proposed amendment establishes a

mens rea

requirement for the enhancements under § 2K2.1(b)(4) for stolen firearms and firearms with modified serial numbers. An issue for comment is also provided.

(A) Machinegun Conversion Devices (MCDs)

Synopsis of Proposed Amendment:

Section 2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) employs, for different purposes, two distinct definitions of the term “firearm” drawn from separate statutory sources: 21 U.S.C. 921(a)(3) (“Gun Control Act (GCA) definition of firearm”) and 26 U.S.C. 5845(a) (“National Firearms Act (NFA) definition of firearm”). One difference between the definitions is the inclusion of machinegun conversion devices (MCDs). Commonly referred to as “Glock switches” or “auto sears,” MCDs are devices designed to convert weapons into fully automatic firearms. The NFA definition of firearm includes “machineguns,” 26 U.S.C. 5845(a), and the definition of “machinegun” includes “any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun,” 26 U.S.C. 5845(b). Therefore, MCDs fall within the NFA definition of firearm. However, the GCA definition of firearm does not encompass MCDs.

See

21 U.S.C. 921(a)(3).

Section 2K2.1 uses the NFA definition of firearm for certain enhanced base offense levels.

See, e.g.,

USSG § 2K2.1(a)(1), (3), (4), and (5). Therefore, those enhanced base offense levels apply to offenses involving MCDs. However, the remainder of § 2K2.1, including the specific offense characteristics and the cross reference, uses the GCA definition of firearm. USSG § 2K2.1, comment. (n.1). Therefore, MCDs do not trigger § 2K2.1's specific offense characteristics or the cross reference. For example, an individual convicted under 18 U.S.C. 922(o) for possessing five MCDs would receive an enhanced base offense level because the offense involved a firearm described in 26 U.S.C. 5845(a).

See

USSG § 2K2.1(a)(5). However, this individual would not receive an enhancement under § 2K2.1(b)(1) for the number of firearms involved in the offense because the MCDs are not firearms under the GCA definition.

See

USSG § 2K2.1(b)(1).

Commenters have expressed concern that § 2K2.1 insufficiently addresses offenses involving MCDs. Commenters have described a significant recent proliferation of MCDs and pointed out the increased danger to bystanders and law enforcement officials when a weapon is equipped with an MCD because those weapons can fire more quickly and are more difficult to control.

Part A of the proposed amendment would amend § 2K2.1 to address these concerns.

The proposed amendment provides two options to amend § 2K2.1.

Option 1 would amend the definition of “firearm” applicable to § 2K2.1 to include any firearm described in 18 U.S.C. 921(a)(3) (

i.e.,

the GCA definition of firearm) or 26 U.S.C. 5845(a) (

i.e.,

the NFA definition of firearm). It would move the definition from the Commentary to the guideline itself in newly created subsection (d).

Option 2 would expand the application of the following subsections, which now apply only to GCA firearms, so that those subsections would also apply to NFA firearms:

• Subsection (b)(1), which provides an enhancement based on the number of firearms involved in the offense;

• Subsection (b)(4), which provides an enhancement for offenses involving firearms that were stolen, had a

modified serial number, or were not marked with a serial number;

• Subsection (b)(5), which provides an enhancement for certain offenses involving the transport, transfer, sale, or other disposition of a firearm to another person;

• Subsection (b)(6), which provides an enhancement for offenses involving transportation of a firearm outside the United States or the possession of a firearm in connection with another felony;

• Subsection (b)(7), which provides an enhancement for recordkeeping offenses that reflect an effort to conceal a substantive offense involving firearms or ammunition; and

• Subsection (c), which cross references other guidelines for cases in which the defendant used or possessed any firearm cited in the offense of conviction in connection with the commission or attempted commission of another offense, or possessed or transferred a firearm cited in the offense of conviction with knowledge or intent that it would be used or possessed in connection with another offense.

Option 2, if applied to all of the listed subsections, would produce an equivalent result to Option 1, but Option 2 highlights the policy question as to whether expansion of the definition of “firearm” should apply to all relevant provisions.

Issues for comment are also provided.

Proposed Amendment

Option 1

(

“Firearm” definition includes GCA firearms and NFA firearms

Section 2K1.1 is amended by inserting at the end the following new subsection (d):

“(d) Definition

(1) For purposes of this guideline, `firearm' includes any firearm described in 18 U.S.C. 921(a)(3) or 26 U.S.C. 5845(a).”.

The Commentary to § 2K2.1 captioned “Application Notes” is amended in Note 1 by striking the following:

“ `

Firearm'

has the meaning given that term in 18 U.S.C. 921(a)(3).”.

Option 2

(

“Firearm” definition depends on statutory references in specific subsections

Section 2K2.1 is amended—

in subsection (b)(1) by inserting after “three or more firearms” the following: “(as described in 18 U.S.C. 921(a)(3) or 26 U.S.C. 5845(a))”;

in subsection (b)(3)(B), by striking “subdivision” and inserting “paragraph”;

by striking subsection (b)(4) as follows:

“(4) If (A) any firearm was stolen, increase by 2 levels; or (B)(i) any firearm had a serial number that was modified such that the original information is rendered illegible or unrecognizable to the unaided eye; or (ii) the defendant knew that any firearm involved in the offense was not otherwise marked with a serial number (other than a firearm manufactured prior to the effective date of the Gun Control Act of 1968) or was willfully blind to or consciously avoided knowledge of such fact, increase by 4 levels.”,

and inserting the following new subsection (b)(4) as follows:

“(4) If any firearm (as described in 18 U.S.C. 921(a)(3) or 26 U.S.C. 5845(a)) (A) was stolen, increase by 2 levels; (B) had a serial number that was modified such that the original information is rendered illegible or unrecognizable to the unaided eye, increase by 4 levels; or (C) was not otherwise marked with a serial number (other than a firearm manufactured prior to the effective date of the Gun Control Act of 1968) and the defendant knew, was willfully blind to, or consciously avoided knowledge of such fact, increase by 4 levels.”;

by striking subsections (b)(5), (b)(6), and (b)(7) as follows:

“(5) (Apply the Greatest) If the defendant—

(A) was convicted under 18 U.S.C. 933(a)(2) or (a)(3), increase by 2 levels;

(B) (i) transported, transferred, sold, or otherwise disposed of, or purchased or received with intent to transport, transfer, sell, or otherwise dispose of, a firearm or any ammunition knowing or having reason to believe that such conduct would result in the receipt of the firearm or ammunition by an individual who (I) was a prohibited person; or (II) intended to use or dispose of the firearm or ammunition unlawfully; (ii) attempted or conspired to commit the conduct described in clause (i); or (iii) received a firearm or any ammunition as a result of inducing the conduct described in clause (i), increase by 2 levels; or

(C) (i) transported, transferred, sold, or otherwise disposed of, or purchased or received with intent to transport, transfer, sell, or otherwise dispose of, two or more firearms knowing or having reason to believe that such conduct would result in the receipt of the firearms by an individual who (I) had a prior conviction for a crime of violence, controlled substance offense, or misdemeanor crime of domestic violence; (II) was under a criminal justice sentence at the time of the offense; or (III) intended to use or dispose of the firearms unlawfully; (ii) attempted or conspired to commit the conduct described in clause (i); or (iii) received two or more firearms as a result of inducing the conduct described in clause (i), increase by 5 levels.

Provided,

however, that subsection (b)(5)(C)(i)(I) shall not apply based upon the receipt or intended receipt of the firearms by an individual with a prior conviction for a misdemeanor crime of domestic violence against a person in a dating relationship if, at the time of the instant offense, such individual met the criteria set forth in the proviso of 18 U.S.C. 921(a)(33)(C).

(6) If the defendant—

(A) possessed any firearm or ammunition while leaving or attempting to leave the United States, or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be transported out of the United States; or

(B) used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense,

increase by 4 levels. If the resulting offense level is less than level 18, increase to level 18.

(7) If a recordkeeping offense reflected an effort to conceal a substantive offense involving firearms or ammunition, increase to the offense level for the substantive offense.”,

and inserting the following new subsections (b)(5), (b)(6), and (b)(7):

“(5) (Apply the Greatest) If the defendant—

(A) was convicted under 18 U.S.C. 933(a)(2) or (a)(3), increase by 2 levels;

(B) (i) transported, transferred, sold, or otherwise disposed of, or purchased or received with intent to transport, transfer, sell, or otherwise dispose of, a firearm (as described in 18 U.S.C. 921(a)(3) or 26 U.S.C. 5845(a)) or any ammunition knowing or having reason to believe that such conduct would result in the receipt of the firearm or ammunition by an individual who (I) was a prohibited person; or (II) intended to use or dispose of the firearm or ammunition unlawfully; (ii) attempted or conspired to commit the conduct described in clause (i); or (iii) received a firearm (as described in 18 U.S.C. 921(a)(3) or 26 U.S.C. 5845(a)) or any ammunition as a result of inducing the conduct described in clause (i), increase by 2 levels; or

such conduct would result in the receipt of the firearms by an individual who (I) had a prior conviction for a crime of violence, controlled substance offense, or misdemeanor crime of domestic violence; (II) was under a criminal justice sentence at the time of the offense; or (III) intended to use or dispose of the firearms unlawfully; (ii) attempted or conspired to commit the conduct described in clause (i); or (iii) received two or more firearms (as described in 18 U.S.C. 921(a)(3) or 26 U.S.C. 5845(a)) as a result of inducing the conduct described in clause (i), increase by 5 levels.

Provided,

(6) If the defendant—

(A) possessed any firearm (as described in 18 U.S.C. 921(a)(3) or 26 U.S.C. 5845(a)) or ammunition while leaving or attempting to leave the United States, or possessed or transferred any firearm (as described in 18 U.S.C. 921(a)(3) or 26 U.S.C. 5845(a)) or ammunition with knowledge, intent, or reason to believe that it would be transported out of the United States; or

(B) used or possessed any firearm (as described in 18 U.S.C. 921(a)(3) or 26 U.S.C. 5845(a)) or ammunition in connection with another felony offense; or possessed or transferred any firearm (as described in 18 U.S.C. 921(a)(3) or 26 U.S.C. 5845(a)) or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense,

increase by 4 levels. If the resulting offense level is less than level 18, increase to level 18.

(7) If a recordkeeping offense reflected an effort to conceal a substantive offense involving firearms (as described in 18 U.S.C. 921(a)(3) or 26 U.S.C. 5845(a)) or ammunition, increase to the offense level for the substantive offense.”;

and in subsection (c)(1) by inserting after “any firearm” the following: “(as described in 18 U.S.C. 921(a)(3) or 26 U.S.C. 5845(a))”; and inserting after “transferred a firearm” the following: “(as described in 18 U.S.C. 921(a)(3) or 26 U.S.C. 5845(a))”.

The Commentary to § 2K2.1 captioned “Application Notes” is amended—

in Note 1, in the paragraph that begins ” `Firearm' has the meaning” by inserting after “18 U.S.C. 921(a)(3)” the following: “unless otherwise specified”;

by striking Note 8 as follows:

“8.

Application of Subsection (b)(4).

—

(A)

Interaction with Subsection (a)(7).

—If the only offense to which § 2K2.1 applies is 18 U.S.C. 922(i), (j), or (u), or 18 U.S.C. 924(l) or (m) (offenses involving a stolen firearm or stolen ammunition) and the base offense level is determined under subsection (a)(7), do not apply the enhancement in subsection (b)(4)(A). This is because the base offense level takes into account that the firearm or ammunition was stolen. However, if the offense involved a firearm with a serial number that was modified such that the original information is rendered illegible or unrecognizable to the unaided eye, or if the defendant knew that any firearm involved in the offense was not otherwise marked with a serial number (other than a firearm manufactured prior to the effective date of the Gun Control Act of 1968) or was willfully blind to or consciously avoided knowledge of such fact, apply subsection (b)(4)(B)(i) or (ii).

Similarly, if the offense to which § 2K2.1 applies is 18 U.S.C. 922(k) or 26 U.S.C. 5861(g) or (h) (offenses involving an altered or obliterated serial number) and the base offense level is determined under subsection (a)(7), do not apply the enhancement in subsection (b)(4)(B)(i). However, if the offense involved a stolen firearm or stolen ammunition, or if the defendant knew that any firearm involved in the offense was not otherwise marked with a serial number (other than a firearm manufactured prior to the effective date of the Gun Control Act of 1968) or was willfully blind to or consciously avoided knowledge of such fact, apply subsection (b)(4)(A) or (B)(ii).

(B)

Defendant's State of Mind.

—Subsection (b)(4)(A) or (B)(i) applies regardless of whether the defendant knew or had reason to believe that the firearm was stolen or had a serial number that was modified such that the original information is rendered illegible or unrecognizable to the unaided eye. However, subsection (b)(4)(B)(ii) only applies if the defendant knew that any firearm involved in the offense was not otherwise marked with a serial number (other than a firearm manufactured prior to the effective date of the Gun Control Act of 1968) or was willfully blind to or consciously avoided knowledge of such fact.”,

and inserting the following new Note 8:

“8.

Application of Subsection (b)(4).

—

(A)

Interaction with Subsection (a)(7).

Similarly, if the offense to which § 2K2.1 applies is 18 U.S.C. 922(k) or 26 U.S.C. 5861(g) or (h) (offenses involving an altered or obliterated serial number) and the base offense level is determined under subsection (a)(7), do not apply the enhancement in subsection (b)(4)(B). However, if the offense involved a stolen firearm or stolen ammunition, or if the defendant knew that any firearm involved in the offense was not otherwise marked with a serial number (other than a firearm manufactured prior to the effective date of the Gun Control Act of 1968) or was willfully blind to or consciously avoided knowledge of such fact, apply subsection (b)(4)(A) or (C).

(B)

Defendant's State of Mind.

—Subsection (b)(4)(A) or (B) applies regardless of whether the defendant knew or had reason to believe that the firearm was stolen or had a serial number that was modified such that the original information is rendered illegible or unrecognizable to the unaided eye. However, subsection (b)(4)(C) only applies if the defendant knew that any firearm involved in the offense was not otherwise marked with a serial number (other than a firearm manufactured prior to the effective date of the Gun Control Act of 1968) or was willfully blind to or consciously avoided knowledge of such fact.”;

and in Note 9 by striking “record-keeping” and inserting “recordkeeping”.

Issues for Comment

1. Part A of the proposed amendment seeks to respond to concerns that § 2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) insufficiently addresses the dangers presented by machinegun conversion devices (MCDs). The Commission seeks comment on whether the proposed amendment appropriately addresses those concerns. Should the Commission

address those concerns in another way? If so, how?

2. Under Options 1 and 2 of Part A of the proposed amendment, an MCD would be treated as a firearm for purposes of § 2K2.1. The Commission seeks comment on whether it is appropriate for MCDs to be given the same weight as other firearms. Should MCDs be treated differently from other firearms? If so, how?

3. Section 2K2.1(b)(1) and (b)(5)(C) provide enhancements based, in whole or in part, on the number of “firearms” involved in the offense. Under Options 1 and 2, an MCD would be considered a firearm. MCDs are designed to be affixed to another firearm. The Commission seeks comment on how MCDs should be factored when calculating the number of firearms for purposes of § 2K2.1(b)(1) and (b)(5)(C). Should the calculation depend on whether the MCD was affixed to another firearm? If an MCD is affixed to a semi-automatic firearm, should the resulting weapon be counted as one firearm or two firearms?

4. Section 2K2.1(b)(1), (b)(4), (b)(5), (b)(6), (b)(7), and (c) currently apply to firearms defined in 18 U.S.C. 921(a)(3) (the GCA definition of firearm). Under Options 1 and 2, the term “firearm,” as used in those provisions, would also include any firearm described in 26 U.S.C. 5845(a) (the NFA definition of firearm), such as an MCD. The Commission seeks comment on whether this change should apply to all of the listed provisions. Should one or more of these provisions be excluded from the change? For example, should the Commission make an exception to § 2K2.1(b)(4)(C), as redesignated, which provides an enhancement for certain cases involving firearms that were not marked with a serial number, for MCDs, which are often privately made and not marked with a serial number?

5. With few exceptions (

e.g.,

MCDs), a weapon that meets the NFA definition of firearm also meets the GCA definition of firearm. Apart from MCDs, the Commission seeks comment on whether there are any exceptions (

i.e.,

weapons that meet the NFA definition of firearm but not the GCA definition) that should not be treated as firearms for purposes of § 2K2.1. If so, what types of weapons should be excluded? In Option 2 of Part A of the proposed amendment, should the Commission expand the application of subsection (b)(1), (b)(4), (b)(5), (b)(6), (b)(7), or (c) to include machineguns (as defined in 26 U.S.C. 5845(b)), rather than all NFA firearms?

6. In addition to amending the definition of “firearm” for purposes of § 2K2.1, Option 1 of Part A of the amendment would move the definition from the Commentary to the guideline itself. However, the option would not move any other § 2K2.1 definitions from the Commentary to the guideline. The Commission seeks comment on whether leaving some definitions in the Commentary will lead to inconsistent application of those definitions. Should the Commission move other definitions from the Commentary to § 2K2.1 to the guideline itself? If so, which ones?

(B)

Mens Rea

Requirement

Synopsis of Proposed Amendment:

Section 2K2.1 provides for offense level increases in cases involving stolen firearms, firearms with modified serial numbers, and firearms not marked with a serial number (commonly referred to as ghost guns).

See

USSG § 2K2.1(b)(4). Subsection (b)(4)(A) provides a 2-level enhancement if a firearm is stolen. USSG § 2K2.1(b)(4)(A). Subsections (B)(i) and (ii) provide a 4-level enhancement based upon the existence and state of any serial number on firearms considered for purposes of § 2K2.1. USSG § 2K2.1(b)(4)(B)(i) and (ii). The 4-level enhancement may apply, under subsection (b)(4)(B)(i), if a “firearm had a serial number that was modified such that the original information is rendered illegible or unrecognizable to the unaided eye,” and, under subsection (b)(4)(B)(ii), if a “firearm involved in the offense was not otherwise marked with a serial number.”

Id.

The court may not apply both § 2K2.1(b)(4)(A) and (b)(4)(B) cumulatively, as the provisions are alternative.

See

USSG § 1B1.1, comment. (n.4(A)) (“Within each specific offense characteristic subsection, . . . the offense level adjustments are alternative; only the one that best describes the conduct is to be used.”).

The enhancements for stolen firearms and modified serial numbers impose no requirement of the defendant's knowledge or other mental state. USSG § 2K2.1(b)(4)(A) and (B)(i). The Commentary to § 2K2.1 states that these enhancements apply “regardless of whether the defendant knew or had reason to believe that the firearm was stolen or had serial number that was modified such that the original information is rendered illegible or unrecognizable to the unaided eye.” USSG § 2K2.1, comment. (n.8(B)). However, subsection (b)(4)(B)(ii) for firearms not marked with a serial number applies only “if the defendant knew that any firearm involved in the offense was not otherwise marked with a serial number . . . or was willfully blind to or consciously avoided knowledge of such fact.”

Id.

The enhancement regarding firearms not marked with a serial number is the result of a 2023 amendment. USSG App. C, amend. 819 (effective Nov. 1, 2023). The amendment extended the 4-level enhancement at § 2K2.1(b)(4)(B) to firearms not marked with a serial number.

Id.

The Commission determined, however, “that the enhancement should apply only to those defendants who knew or consciously avoided knowing that the firearm was not marked with a serial number.”

Id.

Accordingly, in its current form, § 2K2.1(b)(4) imposes a mental state requirement when the enhancement applies based on a firearm not marked with a serial number but includes no such requirement when it applies based on a stolen firearm or firearm with a modified serial number.

Part B of the proposed amendment would apply the current mental state requirement from § 2K2.1(b)(4)(B)(ii) to all of subsection (b)(4).

Under the proposed amendment, a defendant would be subject to the 2-level enhancement under § 2K2.1(b)(4)(A) only if the defendant “knew, was willfully blind to the fact, or consciously avoided knowing that . . . any firearm was stolen.” Similarly, a defendant would be subject to the 4-level enhancement under § 2K2.1(b)(4)(B)(i) only if the defendant “knew, was willfully blind to the fact, or consciously avoided knowing that . . . any firearm had a serial number that was modified such that the original information is rendered illegible or unrecognizable to the unaided eye.” The proposed amendment would also make conforming changes to Application Note 8 of the Commentary to § 2K2.1.

An issue for comment is also provided.

Proposed Amendment

Section 2K2.1(b)(4) is amended by inserting after “If” the following: “the defendant knew, was willfully blind to the fact, or consciously avoided knowing that”; by striking “or (B)(i) any firearm” and inserting “(B) any firearm”; by striking “(ii) the defendant knew that any firearm” and inserting “(C) any firearm”; and by striking “or was willfully blind to or consciously avoided knowledge of such fact”.

The Commentary to § 2K2.1 captioned “Application Notes” is amended by striking Note 8 as follows:

“8.

Application of Subsection (b)(4).

—

(A)

Interaction with Subsection (a)(7).

—If the only offense to which § 2K2.1 applies is 18 U.S.C. 922(i), (j), or

(u), or 18 U.S.C. 924(l) or (m) (offenses involving a stolen firearm or stolen ammunition) and the base offense level is determined under subsection (a)(7), do not apply the enhancement in subsection (b)(4)(A). This is because the base offense level takes into account that the firearm or ammunition was stolen. However, if the offense involved a firearm with a serial number that was modified such that the original information is rendered illegible or unrecognizable to the unaided eye, or if the defendant knew that any firearm involved in the offense was not otherwise marked with a serial number (other than a firearm manufactured prior to the effective date of the Gun Control Act of 1968) or was willfully blind to or consciously avoided knowledge of such fact, apply subsection (b)(4)(B)(i) or (ii).

(B)

Defendant's State of Mind.

and inserting the following new Note 8:

“8.

Application of Subsection (b)(4).

—If the only offense to which § 2K2.1 applies is 18 U.S.C. 922(i), (j), or (u), or 18 U.S.C. 924(l) or (m) (offenses involving a stolen firearm or stolen ammunition) and the base offense level is determined under subsection (a)(7), do not apply the enhancement in subsection (b)(4)(A). This is because the base offense level takes into account that the firearm or ammunition was stolen. However, if the defendant knew, was willfully blind to the fact, or consciously avoided knowing that a firearm had a serial number that was modified such that the original information is rendered illegible or unrecognizable to the unaided eye, or that any firearm involved in the offense was not otherwise marked with a serial number (other than a firearm manufactured prior to the effective date of the Gun Control Act of 1968), apply subsection (b)(4)(B) or (C).

Similarly, if the offense to which § 2K2.1 applies is 18 U.S.C. 922(k) or 26 U.S.C. 5861(g) or (h) (offenses involving an altered or obliterated serial number) and the base offense level is determined under subsection (a)(7), do not apply the enhancement in subsection (b)(4)(B). However, if the defendant knew, was willfully blind to the fact, or consciously avoided knowing that a firearm or ammunition was stolen, or that any firearm involved in the offense was not otherwise marked with a serial number (other than a firearm manufactured prior to the effective date of the Gun Control Act of 1968), apply subsection (b)(4)(A) or (C).”.

Issue for Comment

1. Under Part B of the proposed amendment, a defendant would be subject to the 2-level enhancement under § 2K2.1(b)(4)(A) only if the defendant “knew, was willfully blind to the fact, or consciously avoided knowing that” a firearm was stolen. Similarly, a defendant would be subject to the 4-level enhancement under § 2K2.1(b)(4)(B) only if the defendant “knew, was willfully blind to the fact, or consciously avoided knowing that . . . any firearm had a serial number that was modified such that the original information is rendered illegible or unrecognizable to the unaided eye.” The Commission seeks comment on whether there are evidentiary challenges in firearms cases to proving a defendant's mental state. Are there changes the Commission should make to the proposed amendment to address potential evidentiary issues? If so, what changes should the Commission make?

3. Circuit Conflicts

Synopsis of Proposed Amendment:

This proposed amendment addresses two circuit conflicts involving § 2B3.1 (Robbery) and § 4A1.2 (Definitions and Instructions for Computing Criminal History).

See

U.S. Sent'g Comm'n, “Notice of Final Priorities,” 89 FR 66176, 66177 (Aug. 14, 2024) (identifying resolution of circuit conflicts as a priority). The proposed amendment contains two parts (Parts A and B). The Commission is considering whether to promulgate any or all of these parts, as they are not mutually exclusive.

Part A addresses a circuit conflict concerning whether the “physically restrained” enhancement at § 2B3.1(b)(4)(B) can be applied to situations in which a victim is restricted from moving at gunpoint but is not otherwise immobilized through physical measures such as those listed in the “physically restrained” definition set forth in the Commentary to § 1B1.1 (Application Instructions). Three options are presented. Issues for comment are also included.

Part B addresses a circuit conflict concerning whether a traffic stop is an “intervening arrest” for purposes of determining whether multiple prior sentences should be “counted separately or treated as a single sentence” when assigning criminal history points (“single-sentence rule”).

See

USSG § 4A1.2(a)(2).

(A) Circuit Conflict Concerning the “Physically Restrained” Enhancement at § 2B3.1(b)(4)(B)

Synopsis of Proposed Amendment:

Subsection (b)(4)(B) of § 2B3.1 (Robbery) provides for a 2-level enhancement “if any person was physically restrained to facilitate commission of the offense or to facilitate escape.” For purposes of § 2B3.1(b)(4)(B), the term “physically restrained” is defined in Application Note 1(L) to § 1B1.1 (Application Instructions) as “the forcible restraint of the victim such as by being tied, bound, or locked up.”

A circuit conflict has arisen concerning whether the enhancement at § 2B3.1(b)(4)(B) can be applied to situations in which a victim is restricted from moving at gunpoint but is not otherwise immobilized through physical measures such as those outlined in the Commentary to § 1B1.1 (

i.e.,

“being tied, bound, or locked up”).

The First, Fourth, Sixth, Tenth, and Eleventh Circuits have held that restricting a victim from moving at gunpoint suffices for the enhancement.

See, e.g., United States

Wallace

, 461 F.3d 15, 34-35 (1st Cir. 2006) (affirming application of enhancement where one victim had her path blocked and was ordered at gunpoint to stop, and the other had a gun pointed directly at his face and chest, “at close range,” and was commanded to “look straight ahead into the gun and not to move”);

United States

Dimache

, 665 F.3d 603, 608 (4th Cir. 2011) (upholding enhancement where “two bank tellers ordered to the floor at gunpoint were prevented from both leaving the bank and thwarting the bank robbery”);

United States

Howell

17 F.4th 673, 692 (6th Cir. 2021) (noting that the Sixth Circuit has “rejected the notion of a `physical component' limitation as inapt” and upholding enhancement where victim was ordered at gunpoint to lie down on the floor (citation omitted));

United States

Miera

, 539 F.3d 1232, 1235-36 (10th Cir. 2008) (pointing gun around, commanding bank occupants not to move, and blocking door sufficed for enhancement);

United States

Deleon

, 116 F.4th 1260, 1261-62 (11th Cir. 2024) (affirming application of enhancement where the defendant “pointed a gun at the cashier while demanding money” but never “actually touched the cashier”).

By contrast, the Second, Third, Fifth, Seventh, Ninth, and D.C. Circuits largely agree that a restraint must be “physical” for the enhancement to apply and that the psychological coercion of pointing a gun at a victim, without more, does not qualify.

See, e.g., United States

Anglin

, 169 F.3d 154, 164 (2d Cir. 1999) (“displaying a gun and telling people to get down and not move, without more, is insufficient to trigger the `physical restraint' enhancement”);

United States

Bell

, 947 F.3d 49, 57, 60-61 (3d Cir. 2020) (adopting “the requirement that the restraint involve some physical aspect”; placing fake gun on victim's neck and forcing him to floor did not suffice);

United States

Garcia

, 857 F.3d 708, 713-14 (5th Cir. 2017) (vacating enhancement because “standing near a door, holding a firearm, and instructing a victim to get on the ground” did not “differentiate th[e] case in any meaningful way from a typical armed robbery”);

United States

Herman

, 930 F.3d 872, 877 (7th Cir. 2019) (“more than pointing a gun at someone and ordering that person not to move is necessary”);

United States

Parker

, 241 F.3d 1114, 1118-19 (9th Cir. 2001) (“briefly pointing a gun at a victim and commanding her once to get down” did not constitute “physical restraint, given that nearly all armed bank robberies will presumably involve such acts”);