Sentencing Guidelines for United States Courts

UNITED STATES SENTENCING COMMISSION

Sentencing Guidelines for United States Courts

AGENCY:

United States Sentencing Commission.

ACTION:

Notice of submission to Congress of amendments to the sentencing guidelines effective November 1, 2025, and request for comment.

SUMMARY:

The United States Sentencing Commission hereby gives notice that the Commission has promulgated amendments to the sentencing guidelines, policy statements, and commentary; and the Commission requests comment regarding whether it should include in the

Guidelines Manual

as changes that may be applied retroactively to previously sentenced defendants any or all of the following amendments: Parts A and B of Amendment 1; and Subparts 1 and 2 of Part A of Amendment 2. This notice sets forth the text of the amendments and the reason for each amendment, and the request for comment regarding possible retroactive application of the amendments listed above.

DATES:

Effective Date of Amendments.

The Commission has specified an effective date of November 1, 2025, for the amendments set forth in this notice.

Written Public Comment.

Written public comment regarding possible retroactive application of Parts A and B of Amendment 1, and Subparts 1 and 2 of Part A of Amendment 2, should be received by the Commission not later than June 2, 2025. Any public comment received after the close of the comment period may not be considered.

ADDRESSES:

There are two methods for submitting written 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—Issue for Comment on Retroactivity.

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). Absent action of the Congress to the contrary, submitted amendments become effective by operation of law on the date specified by the Commission (generally November 1 of the year in which the amendments are submitted to Congress).

(1) Amendments to the Sentencing Guidelines, Policy Statements, and Official Commentary

Pursuant to its authority under 28 U.S.C. 994(p), the Commission has promulgated amendments to the sentencing guidelines, policy statements, and commentary. Notices of proposed amendments were published in the

Federal Register

on January 2, 2025 (

see

90 FR 128) and February 4, 2025 (

see

90 FR 8968). The Commission held public hearings on the proposed amendments in Washington, DC, on February 12, 2025, and March 12-13, 2025. On April 30, 2025, the Commission submitted the promulgated amendments to the Congress and specified an effective date of November 1, 2025.

The text of the amendments to the sentencing guidelines, policy statements, and commentary, and the reason for each amendment, is set forth below. Additional information pertaining to the amendments described in this notice may be accessed through the Commission's website at

www.ussc.gov.

(2) Request for Comment on Possible Retroactive Application of Parts A and B of Amendment 1, and Subparts 1 and 2 of Part A of Amendment 2

This notice sets forth a request for comment regarding whether the Commission should list 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 any or all of the following subparts or parts of these amendments: Part A (Circuit Conflict Relating to “Physically Restrained” Enhancements) and Part B (Circuit Conflict Relating to the Meaning of “Intervening Arrest” in § 4A1.2(a)(2)) of Amendment 1, and Subpart 1 (Mitigating Role Provisions at § 2D1.1(a)(5)) and Subpart 2 (Special Instruction Relating to § 3B1.2) of Part A of Amendment 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.

Authority:

28 U.S.C. 994(a), (o), (p), and (u); USSC Rules of Practice and Procedure 2.2, 4.1, and 4.1A.

Carlton W. Reeves,

Chair.

(1) Amendments to the Sentencing Guidelines, Policy Statements, and Official Commentary

1. Amendment

Part A (Circuit Conflict Concerning “Physically Restrained” Enhancements)

Section 2B3.1(b)(2)(B) is amended by striking “if a firearm was otherwise used” and inserting “if a firearm was used to convey a specific (not general) threat of harm (

e.g.,

pointing the firearm at a specific victim or victims; directing the movement of a specific victim or victims with the firearm) or to make physical contact with a victim (

e.g.,

pistol whip; firearm placed against victim's body)”.

Section 2B3.1(b)(4)(B) is amended by striking “if any person was physically restrained” and inserting “if any person's freedom of movement was restricted through physical contact or confinement, such as by being tied, bound, or locked up,”.

The Commentary to § 2B3.1 captioned “Application Notes” is amended in Note 1 by striking ” `abducted,' and `physically restrained' are defined” and inserting “and `abducted' have the meaning given such terms”.

The Commentary to § 2B3.1 captioned “Background” is amended by striking “was physically restrained by being tied, bound, or lock up” and inserting “a victim's freedom of movement was restricted through physical contact or confinement, such as by being tied, bound, or locked up”.

Section 2B3.2(b)(3)(A)(ii) is amended by striking “if a firearm was otherwise used” and inserting “if a firearm was used to convey a specific (not general) threat of harm (

e.g.,

pointing the firearm at a specific victim or victims; directing

the movement of a specific victim or victims with the firearm) or to make physical contact with a victim (

e.g.,

pistol whip; firearm placed against victim's body)”.

Section 2B3.2(b)(5)(B) is amended by striking “if any person was physically restrained” and inserting “if any person's freedom of movement was restricted through physical contact or confinement, such as by being tied, bound, or locked up,”.

The Commentary to § 2B3.2 captioned “Application Notes” is amended in Note 1 by striking ” `physically restrained,' ”.

Section 2E2.1(b)(1)(B) is amended by striking “if a dangerous weapon (including a firearm) was otherwise used” and inserting “if a dangerous weapon (including a firearm) was used to convey a specific (not general) threat of harm (

e.g.,

pointing the weapon at a specific victim or victims; directing the movement of a specific victim or victims with the weapon) or to make physical contact with a victim (

e.g.,

pistol whip; weapon placed against victim's body)”.

Section 2E2.1(b)(3)(B) is amended by striking “if any person was physically restrained” and inserting “if any person's freedom of movement was restricted through physical contact or confinement, such as by being tied, bound, or locked up,”.

The Commentary to § 2E2.1 captioned “Application Notes” is amended in Note 1 by striking “ ‘otherwise used,’ ”; and by striking “ ‘abducted,’ and ‘physically restrained’ ” and inserting “and ‘abducted’ ”.

The Commentary to § 2X1.1 captioned “Application Notes” is amended in Note 2 by striking “the defendants actually intended to physically restrain the teller, the specific offense characteristic for physical restraint would be added” and inserting “the defendants actually intended to restrict the teller's freedom of movement through physical contact or confinement, the specific offense characteristic for such restriction would be added”.

Part B (Circuit Conflict Concerning Meaning of “Intervening Arrest” in § 4A1.2(a)(2))

Section 4A1.2(a)(2) is amended in the paragraph that begins “If the defendant” by inserting after “the second offense).” the following: “For purposes of this provision, a traffic stop is not an intervening arrest.”.

Reason for Amendment:

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

Part A—Circuit Conflict Concerning “Physically Restrained” Enhancements

Part A of the amendment responds to a circuit conflict over whether § 2B3.1(b)(4)(B)—which provides for a 2-level increase “if any person was physically restrained to facilitate commission of the offense or to facilitate escape”—applies where a robbery victim is restricted from moving at gunpoint but is not otherwise immobilized through measures like those in the definition of “physically restrained” in Application Note 1 to § 1B1.1 (Application Instructions) (

i.e.,

“by being tied, bound, or locked up”).

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

See, e.g., United States

v.

Anglin

, 169 F.3d 154, 164 (2d Cir. 1999);

United States

v.

Bell

, 947 F.3d 49, 57 (3d Cir. 2020);

United States

v.

Garcia

, 857 F.3d 708, 713-14 (5thCir. 2017);

United States

v.

Herman

, 930 F.3d 872, 877 (7thCir. 2019);

United States

v.

Parker

, 241 F.3d 1114, 1118-19 (9th Cir. 2001). By contrast, the First, Fourth, Sixth, Tenth, and Eleventh Circuits have held that restricting a victim's movement at gunpoint suffices for the enhancement.

See, e.g., United States

v.

Wallace

, 461 F.3d 15, 34-35 (1st Cir. 2006);

United States

v.

Dimache

, 665 F.3d 603, 608 (4th Cir. 2011);

United States

v.

Howell

, 17F.4th 673, 692 (6th Cir. 2021);

United States

v.

Miera

, 539 F.3d 1232, 1235-36 (10th Cir. 2008);

United States

v.

Deleon

, 116 F.4th 1260, 1264 (11th Cir. 2024).

The Commission received public comment and testimony indicating that the conduct at issue in the circuit split (pointing a gun at a victim during a robbery) is treated differently not only under § 2B3.1(b)(4)(B) but also under the separate § 2B3.1(b)(2) enhancement. Section 2B3.1(b)(2) provides for tiered offense level increases for threats and weapon involvement in a robbery, including a 5-level enhancement “if a firearm was brandished or possessed” and a 6-level enhancement “if a firearm was otherwise used.” The terms “brandished” and “otherwise used” are defined in Application Note 1 to § 1B1.1.

Circuits that have considered the difference between these definitions generally agree that while “brandished” covers the general display of a weapon, a firearm is “otherwise used” where it is employed for a specific threat.

See, e.g., United States

v.

Jordan

, 945 F.3d 245, 264 (5th Cir. 2019) (“While brandishing ‘can mean as little as displaying part of a firearm or making the presence of the firearm known in order to intimidate,’ otherwise using a weapon includes pointing the weapon at an individual in a specifically threatening manner.” (citation omitted));

United States

v.

Johnson

, 803 F.3d 610, 616 (11th Cir. 2015) (“[T]he ‘otherwise use[ ]’ of a firearm includes the use of the firearm to make an explicit or implicit threat against a specific person.”).

Commission data shows, however, that pointing a gun at a victim during a robbery has resulted in the 5-level “brandished” increase in some cases and the 6-level “otherwise used” increase in others. The combination of these differing applications of the firearms enhancement and the conflict among the circuits regarding the 2-level “physically restrained” enhancement has led to disparities: the total resulting enhancements have ranged from five to eight levels for pointing a gun at a victim during a robbery.

To promote uniformity and consistency in guideline application, Part A of the amendment generally adopts the approach of the Second, Third, Fifth, Seventh, and Ninth Circuits that § 2B3.1(b)(4)(B) does not apply solely based on the coercion of using a firearm to restrict a victim's movement. Rather, the increase applies only “if any person's freedom of movement was restricted through physical contact or confinement, such as by being tied, bound, or locked up, to facilitate commission of the offense or to facilitate escape.”

Part A of the amendment also revises § 2B3.1(b)(2) to ensure that use of a firearm during a robbery is accounted for under this enhancement with more uniformity. It amends § 2B3.1(b)(2)(B) to state that the 6-level increase applies “if a firearm was used to convey a specific (not general) threat of harm (

e.g.,

pointing the firearm at a specific victim or victims; directing the movement of a specific victim or victims with the firearm) or to make physical contact with a victim (

e.g.,

pistol whip; firearm placed against victim's body).”

To further promote consistency in application of offense guidelines with similar specific offense characteristics, the amendment makes parallel changes to two Chapter Two guidelines with “physically restrained” and “otherwise used” enhancements: §§ 2B3.2 (Extortion by Force or Threat of Injury or Serious Damage) and 2E2.1 (Making or Financing an Extortionate Extension of Credit; Collecting an Extension of

Credit by Extortionate Means). The amendment does not make parallel changes to § 3A1.3 (Restraint of Victim), which also uses the term “physically restrained” but differs from § 2B3.1(b)(4)(B) in other respects. No inferences as to the scope of that Chapter Three adjustment should be drawn from this amendment.

Part B—Circuit Conflict Concerning Meaning of “Intervening Arrest” in § 4A1.2(a)(2)

Part B of the amendment addresses a circuit conflict over 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”) under § 4A1.2(a)(2).

The Third, Sixth, Ninth, and Eleventh Circuits have held that a formal, custodial arrest is required, and that a citation or summons following a traffic stop does not qualify.

See United States

v.

Ley

, 876 F.3d 103, 109 (3d Cir. 2017);

United States

v.

Rogers

, 86 F.4th 259, 264-65 (6th Cir. 2023);

United States

v.

Leal-Felix

, 665 F.3d 1037, 1041-42 (9th Cir. 2011) (en banc);

United States

v.

Wright

, 862 F.3d 1265, 1282 (11th Cir. 2017). By contrast, the Seventh Circuit has adopted a broad view of the term, holding that a traffic stop amounts to an intervening arrest.

See United States

v.

Morgan

, 354 F.3d 621, 624 (7th Cir. 2003).

After reviewing public comment and testimony, the Commission determined that a traffic stop should not be considered an “intervening arrest” for purposes of the single-sentence rule. The amendment revises § 4A1.2(a)(2) to include that clarification.

2. Amendment

Part A (Application of Mitigating Role Adjustment in Drug Trafficking Cases)

Subpart 1 (Mitigating Role Provisions at § 2D1.1(a)(5))

Section 2D1.1(a)(5) is amended by striking “the offense level specified in the Drug Quantity Table set forth in subsection (c), except that if (A) the defendant receives an adjustment under § 3B1.2 (Mitigating Role); and (B) the base offense level under subsection (c) is (i) level 32, decrease by 2 levels; (ii) level 34 or level 36, decrease by 3 levels; or (iii) level 38, decrease by 4 levels. If the resulting offense level is greater than level 32 and the defendant receives the 4-level (‘minimal participant’) reduction in § 3B1.2(a), decrease to level 32” and inserting “the offense level specified in the Drug Quantity Table set forth in subsection (c), except that if (A) the defendant receives an adjustment under § 3B1.2 (Mitigating Role); and (B) the base offense level under subsection (c) is (i) level 32, decrease by 2 levels; (ii) level 34, decrease by 3 levels; or (iii) above level 34, decrease to level 32. If the resulting offense level is greater than level 30 and the defendant receives the 4-level reduction in § 3B1.2(a), decrease to level 30”.

Section 2D1.1(b)(17) is amended by striking “(‘minimal participant’)”.

Subpart 2 (Special Instruction Relating to § 3B1.2)

Section 2D1.1(e) is amended—

in the heading by striking “Instruction” and inserting “Instructions”;

and by inserting at the end the following new paragraph (2):

“(2) Application of § 3B1.2 (Mitigating Role) to § 2D1.1 Cases

(A) Determine whether an adjustment under § 3B1.2 (Mitigating Role) applies.

(B) In addition to the circumstances identified in § 3B1.2, an adjustment under § 3B1.2 is generally warranted if the defendant's primary function in the offense was performing a low-level trafficking function.

(i) An adjustment under § 3B1.2(a) is generally warranted if the defendant's primary function in the offense was plainly among the lowest level of drug trafficking functions, such as serving as a courier, running errands, sending or receiving phone calls or messages, or acting as a lookout; or

(ii) an adjustment under § 3B1.2(b) is generally warranted if the defendant's primary function in the offense was performing another low-level trafficking function, such as distributing controlled substances in user-level quantities for little or no monetary compensation or with a primary motivation other than profit (

e.g.,

the defendant was otherwise unlikely to commit such an offense and was motivated by an intimate or familial relationship, or by threats or fear to commit the offense).

For purposes of subsection (e)(2)(B), the provisions of § 3B1.2 apply in determining whether a mitigating role adjustment is warranted, except that the adjustment shall apply regardless of whether the offense involved other participants in addition to the defendant, and regardless of whether the defendant was substantially less culpable than the average participant in the criminal activity. The extent of the adjustment shall be based on the totality of the circumstances and involves a determination that is heavily dependent upon the facts of the particular case.

(C) The mitigating role provisions at subsection (a)(5) and the 2-level reduction at subsection (b)(17) apply regardless of whether the defendant receives the required adjustment from § 3B1.2 (Mitigating Role) by direct application of § 3B1.2 or by use of the special instruction in subsection (e)(2)(B).”.

The Commentary to § 3B1.2 captioned “Application Notes” is amended in Note 3(A) by striking the following:

“A defendant who is accountable under § 1B1.3 (Relevant Conduct) only for the conduct in which the defendant personally was involved and who performs a limited function in the criminal activity may receive an adjustment under this guideline. For example, a defendant who is convicted of a drug trafficking offense, whose participation in that offense was limited to transporting or storing drugs and who is accountable under § 1B1.3 only for the quantity of drugs the defendant personally transported or stored may receive an adjustment under this guideline.

Likewise, a defendant who is accountable under § 1B1.3 for a loss amount under § 2B1.1 (Theft, Property Destruction, and Fraud) that greatly exceeds the defendant's personal gain from a fraud offense or who had limited knowledge of the scope of the scheme may receive an adjustment under this guideline. For example, a defendant in a health care fraud scheme, whose participation in the scheme was limited to serving as a nominee owner and who received little personal gain relative to the loss amount, may receive an adjustment under this guideline.”;

and inserting the following:

“A defendant who is accountable under § 1B1.3 (Relevant Conduct) only for the conduct in which the defendant personally was involved and who performs a limited function in the criminal activity may receive an adjustment under this guideline. For example, a defendant who is accountable under § 1B1.3 for a loss amount under § 2B1.1 (Theft, Property Destruction, and Fraud) that greatly exceeds the defendant's personal gain from a fraud offense or who had limited knowledge of the scope of the scheme may receive an adjustment under this guideline. For example, a defendant in a health care fraud scheme, whose participation in the scheme was limited to serving as a nominee owner and who received little personal gain relative to the loss amount, may receive an adjustment under this guideline.”.

Part B (Representing or Marketing Fentanyl or a Fentanyl Analogue as a Legitimately Manufactured Drug)

Section 2D1.1(b)(13)(B) is amended by striking “and acted with willful blindness or conscious avoidance of knowledge that such mixture or substance was not the legitimately manufactured drug” and inserting “with reckless disregard that such mixture or substance was not the legitimately manufactured drug”.

Reason for Amendment:

This two-part amendment is the result of Commission study on the operation of § 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy). As part of its study, the Commission considered feedback from the field, including at a roundtable discussion on drug sentencing, a public hearing, and public comment. The Commission also analyzed a range of drug trafficking sentencing data, including data on sentences imposed at the highest base offense levels, the application of the “mitigating role cap” and mitigating role adjustment, sentences imposed based on function, and the application of enhancements in fentanyl and fentanyl analogue cases. The Commission determined that targeted changes were warranted to ensure appropriate penalties commensurate with an individual's function in a drug trafficking offense and to better address the harms of representing or marketing fentanyl or a fentanyl analogue as a legitimately manufactured drug.

Part A—Application of Mitigating Role Adjustment in Drug Trafficking Cases

Part A of the amendment contains two subparts to address concerns that § 2D1.1 and § 3B1.2 (Mitigating Role) as they currently apply in tandem do not adequately account for the lower culpability of individuals performing low-level functions in a drug trafficking offense.

Subpart 1 (Mitigating Role Provisions at § 2D1.1(a)(5))

Subpart 1 of Part A amends the mitigating role provisions in § 2D1.1(a)(5) to refine the drug trafficking guideline in cases where an individual receives an adjustment under § 3B1.2. The Commission initially added the mitigating role cap to “somewhat limit[ ] the sentencing impact of drug quantity for offenders who perform relatively low level trafficking functions.” USSG App. C, amend. 640 (effective Nov. 1, 2002). As previously amended, § 2D1.1(a)(5) provided a graduated 2-, 3-, or 4-level decrease, depending on the base offense level under § 2D1.1(c), when a defendant received a mitigating role adjustment under § 3B1.2. USSG App. C, amend. 668 (effective Nov. 1, 2004).

This amendment maintains the approach of graduated decreases depending on the base offense level but amends § 2D1.1(a)(5) in two ways. First, it sets a mitigating role cap at level 32 if the defendant receives an adjustment under § 3B1.2 and has a base offense level above 34. Second, if the defendant has a resulting offense level greater than 30 and receives a 4-level adjustment under § 3B1.2(a), then a mitigating role cap of 30 applies.

As explained further below in Subpart 2, the mitigating role provisions in § 2D1.1(a)(5) and the 2-level reduction at § 2D1.1(b)(17) apply regardless of whether the defendant receives the required adjustment from § 3B1.2 by direct application of § 3B1.2 or by use of the new special instruction in § 2D1.1(e)(2)(B). Thus, the amendment deletes the phrase “minimal participant” from § 2D1.1(a)(5) and § 2D1.1(b)(17) to clarify that those provisions are triggered regardless of whether a defendant receives a 4-level reduction by direct application of § 3B1.2(a) or by use of the new special instruction in § 2D1.1(e)(2)(B).

Subpart 2 (Special Instruction Relating to § 3B1.2)

Subpart 2 of Part A adds a new special instruction at § 2D1.1(e) to address the inconsistent application of § 3B1.2 in § 2D1.1 cases and to encourage broader use of § 3B1.2 in these cases.

Section 3B1.2 provides a range of reductions depending on the defendant's role in the criminal activity. Subsection (a) sets forth a 4-level reduction if the defendant was a “minimal participant in any criminal activity.” Subsection (b) sets forth a 2-level reduction if the defendant was “a minor participant in any criminal activity.” Section 3B1.2 also provides for a 3-level reduction where the case “fall[s] between (a) and (b).”

The Commission previously amended the Commentary to § 3B1.2 to increase its usage (

see, e.g.,

USSG App. C, amend. 794 (effective Nov. 1, 2015)). However, Commission data shows that the prior amendment did not result in a sustained increase in application of the mitigating role adjustment in § 2D1.1 cases. Commission data show that when § 3B1.2 is applied in § 2D1.1 cases, the vast majority of these cases receive only a 2-level reduction; 3- and 4-level reductions are rarely applied. Furthermore, Commission data shows variations across districts in application of § 3B1.2 to § 2D1.1 cases. The new special instruction at § 2D1.1(e) addresses the application of § 3B1.2 to § 2D1.1 cases as follows.

The amendment expands the circumstances in which an adjustment under § 3B1.2 is warranted in § 2D1.1 cases by instructing courts that an adjustment is generally warranted if the defendant's “primary function” in the offense was performing a low-level trafficking function. Section 2D1.1(e)(2)(A) directs the court to determine whether an adjustment under § 3B1.2 applies as a court already does under the

Guidelines Manual.

Section 2D1.1(e)(2)(B) then provides that, in addition to the circumstances identified in § 3B1.2, an adjustment under § 3B1.2 is generally warranted if the defendant's primary function in the offense was performing a low-level trafficking function. Thus, a defendant sentenced under § 2D1.1 may qualify for a mitigating role adjustment under § 3B1.2 by direct application of that adjustment or by use of the special instruction in § 2D1.1(e)(2)(B).

To ensure courts focus on a defendant's predominant trafficking-related activities, the Commission selected “primary function” to guide courts in determining whether an adjustment is appropriate. Due to the wide variety of functions performed by individuals in drug trafficking offenses, the examples listed in § 2D1.1(e)(2)(B) are illustrative rather than a definitive list.

To assist courts in determining the appropriate level of reduction, the amendment provides examples of functions generally warranting an adjustment under § 3B1.2(a) and (b). Section 2D1.1(e)(2)(B)(i) states that a four-level adjustment under § 3B1.2(a) is generally warranted if the defendant's primary function in the offense was plainly among the lowest level of drug trafficking functions. It lists as examples serving as a courier, running errands, sending or receiving phone calls or messages, or acting as a lookout. Section 2D1.1(e)(2)(B)(ii) states that a two-level adjustment under § 3B1.2(b) is generally warranted if the defendant's primary function in the offense was another low-level trafficking function. It lists as examples distributing controlled substances in user-level quantities for little or no monetary compensation or with a primary motivation other than profit (

e.g.,

the defendant was otherwise unlikely to commit such an offense and was motivated by an intimate or familial relationship or by threats or fear to commit the offense).

The amendment places the special instruction in § 2D1.1 instead of § 3B1.2 to highlight that the rules for determining § 3B1.2 eligibility are different in § 2D1.1 cases. For purposes of the special instruction at § 2D1.1(e)(2)(B), the provisions of § 3B1.2 apply in determining whether a mitigating role adjustment is warranted, with two exceptions: the amendment provides that the adjustment shall apply regardless of whether the offense involved other participants in addition to the defendant, and also regardless of whether the defendant was substantially less culpable than the average participant in the criminal activity. The Commission determined that these two provisions in the Commentary to § 3B1.2 may discourage a court from applying a mitigating role adjustment in single-defendant drug trafficking cases or drug trafficking cases where the defendant performed a similar low-level function as other participants in the criminal activity, but an adjustment may nevertheless be appropriate. Accordingly, the Commission concluded that these provisions shall not apply in assessing whether a mitigating role adjustment is warranted based on a defendant's low-level function in a drug trafficking offense.

The amendment specifies that the mitigating role provisions in § 2D1.1(a)(5) and the 2-level reduction at § 2D1.1(b)(17) apply regardless of whether the defendant receives the § 3B1.2 adjustment by direct application of § 3B1.2 or by use of the special instruction in § 2D1.1(e)(2)(B). This instruction ensures that any individual who receives a mitigating role adjustment, regardless of the mechanism, may also receive the reductions in § 2D1.1(a)(5) and § 2D1.1(b)(17).

Part B—Representing or Marketing Fentanyl or a Fentanyl Analogue as a Legitimately Manufactured Drug

Part B of the amendment changes the

mens rea

requirement in § 2D1.1(b)(13)(B). In light of the continuing danger associated with the misrepresentation of fake prescription pills containing fentanyl or a fentanyl analogue, the Commission addressed concerns that the

mens rea

requirement was vague and difficult to apply.

Section 2D1.1(b)(13)(A) provides a 4-level increase when the defendant knowingly misrepresented or knowingly marketed as another substance a mixture or substance containing fentanyl or a fentanyl analogue. The Commission added this specific offense characteristic in 2018 in response to rising numbers of fentanyl and fentanyl analogue cases.

See

USSG, App. C. amend. 807 (effective Nov. 1, 2018). In 2023, the Commission added an alternative 2-level enhancement at § 2D1.1(b)(13)(B) for offenses where the defendant represented or marketed as a legitimately manufactured drug another mixture or substance containing fentanyl or a fentanyl analogue, and acted with willful blindness or conscious avoidance of knowledge that such mixture or substance was not the legitimately manufactured drug. The Commission added this specific offense characteristic based on the continued increase in fentanyl and fentanyl analogue distribution and data showing that most fake prescription pills seized containing fentanyl had a potentially lethal dose of the substance.

See

USSG, App. C. amend. 818 (effective Nov. 1, 2023).

The Commission received comment that § 2D1.1(b)(13)(B) is being applied inconsistently, in part, because the current

mens rea

requirement has generated confusion. In particular, commenters have urged the Commission to revise § 2D1.1(b)(13)(B) because the mental state of “willful blindness or conscious avoidance of knowledge” is vague, and cases construe willful blindness as legally equivalent to knowledge, causing uncertainty over when the enhancement should be applied. The Commission further heard concerns about the continuing dangers associated with representing or marketing fentanyl or a fentanyl analogue as a legitimately manufactured drug.

Informed by those concerns, the amendment changes the

mens rea

requirement in § 2D1.1(b)(13)(B) from “willful blindness or conscious avoidance of knowledge” to “reckless disregard.”

3.

Amendment:

Section 2K2.1(b) is amended—

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

by redesignating paragraphs (5) through (9) as paragraphs (6) through (10), respectively;

by inserting after paragraph (4) the following new paragraph (5):

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

(A)(i) possessed four or more machinegun conversion devices; or (ii) transferred or sold any machinegun conversion device to another person, or attempted or conspired to commit such a transfer or sale, increase by 2 levels; or

(B) possessed 30 or more machinegun conversion devices, increase by 4 levels.

For purposes of subsection (b)(5), ‘machinegun conversion device’ means any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun (

i.e.,

any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger).”;

in the paragraph that begins “The cumulative offense level” by striking “(b)(4)” and inserting “(b)(5)”;

in paragraph (6) (as so redesignated), in the subparagraph that begins “

Provided,

however,” by striking “(b)(5)(C)(i)(I)” and inserting “(b)(6)(C)(i)(I)”;

in paragraph (9)(A) (as so redesignated) by striking “(b)(5)” and inserting “(b)(6)”;

and in paragraph (10)(A) (as so redesignated) by striking “(b)(5)” and inserting “(b)(6)”.

The Commentary to § 2K2.1 caption “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”;

in Note 3 by striking “(b)(5)” and inserting “(b)(6)”;

in Note 9 by striking “

Application of Subsection (b)(7).—

Under subsection (b)(7), if a record-keeping offense” and inserting “

Application of Subsection (b)(8).—

Under subsection (b)(8), if a recordkeeping offense”;

in Note 13—

in the heading by striking “(b)(5)” and inserting “(b)(6)”;

and in subparagraph (C) by striking “(b)(5)” and inserting “(b)(6)”; and by striking “(b)(6)(B)” and inserting “(b)(7)(B)”;

and in Note 14—

in the heading by striking “(b)(6)(B)” and inserting “(b)(7)(B)”;

in subparagraph (A) by striking “(b)(6)(B)” and inserting “(b)(7)(B)”;

in subparagraph (B) by striking “(b)(6)(B)” both places it appears and inserting “(b)(7)(B)”;

in subparagraph (C) by striking “(b)(6)(B)” and inserting “(b)(7)(B)”;

and in subparagraph (E) by striking “(b)(6)(B)” each place it appears and inserting “(b)(7)(B)”.

The Commentary to § 2K2.4 captioned “Application Notes” is amended in Note 4(A) in the paragraph that begins “If the explosive” by striking “§ 2K2.1(b)(6)(B)” both places it appears and inserting “§ 2K2.1(b)(7)(B)”.

Reason for Amendment:

This amendment revises § 2K2.1 (Unlawful

Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition), the primary firearms guideline, to more fully account for machinegun conversion devices (MCDs).

Commonly referred to as “Glock switches” and “auto sears,” MCDs are devices designed to convert semi-automatic firearms into fully automatic weapons. Under the National Firearms Act (NFA), 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). An MCD therefore qualifies as a machinegun under federal law, and—as in the case of other machineguns—federal law generally prohibits the possession and transfer of such devices, with limited exceptions.

See

18 U.S.C. 922(o).

As a technical matter, the definition of “firearm” is not uniform throughout federal law. Because the NFA defines “firearm” to include machineguns—and “machinegun” to include MCDs—MCDs qualify as “firearms” under the NFA definition at 26 U.S.C. 5845(a). By contrast, MCDs are not firearms under the definition of that term provided in the Gun Control Act (GCA), which is limited (as relevant) to a weapon “which will or is designed to or may readily be converted to expel a projectile by the action of an explosive” and “the frame or receiver of any such weapon.” 18 U.S.C. 921(a)(3).

Prior to this amendment, § 2K2.1 accounted for MCDs solely through base offense levels. It provided certain enhanced base offense levels for offenses involving NFA firearms, including MCDs.

See

USSG § 2K2.1(a)(1), (3), (4), (5). Although § 2K2.1's base offense levels specifically incorporated the NFA definition of firearm, the remainder of § 2K2.1 used the GCA definition.

See

USSG § 2K2.1, comment. (n.1). Therefore, MCDs did not trigger the specific offense characteristics in § 2K2.1. For example, if an individual were convicted of a firearms offense in which he possessed one semi-automatic firearm and five MCDs, an enhanced base offense level would apply because the offense involved a firearm described in 26 U.S.C. 5845(a),

see

USSG § 2K2.1(a)(1), (3), (4), (5), but there would be no enhancement under the specific offense characteristic at § 2K2.1(b)(1) for the number of MCDs possessed because MCDs are not firearms under the GCA definition.

See

USSG § 2K2.1(b)(1). For the same reason, if the individual transferred the MCDs to another person, this conduct would not support a trafficking enhancement under the specific offense characteristic at § 2K2.1(b)(5) the way the transfer of a GCA firearm (or ammunition) would.

See

USSG § 2K2.1(b)(5).

The Commission's amendment responds to concerns by the Department of Justice and other commenters about the proliferation of MCDs, which pose a heightened danger to the public because a weapon equipped with an MCD fires more rapidly and with less control than an identical weapon without an MCD. Of note, the Department of Justice pointed to a 570% rise in MCD recoveries in 2021 as compared to 2017 and to the growing involvement of automatic gunfire reported in shootings. Commission data similarly reflects a recent rise in firearms cases involving MCDs. In fiscal year 2023, 4.5 percent of cases sentenced under § 2K2.1 involved an MCD—an increase from one percent of § 2K2.1 cases in fiscal year 2019. While most cases involving MCDs in fiscal year 2023 involved a single MCD, more than 18 percent involved four or more devices. In addition, in more than 25 percent of § 2K2.1 cases involving MCDs, the sentenced individual transferred at least one MCD to another person.

To address these concerns and in recognition that MCDs pose different risks than functional firearms, the amendment establishes a new tiered specific offense characteristic at § 2K2.1(b)(5) for cases involving MCDs. New subsection (b)(5)(A) provides a two-level enhancement when a defendant (i) possessed four or more MCDs or (ii) transferred or sold an MCD or attempted or conspired to commit such a transfer or sale. New subsection (b)(5)(B) provides a four-level enhancement when a defendant possessed 30 or more MCDs. The amendment includes a definition of “machinegun conversion device” consistent with the NFA's statutory definition at 26 U.S.C. 5845(b). To tailor the enhancement to the most culpable conduct, the Commission determined that it should apply only to the acts of the defendant. The Commission also concluded that the new specific offense characteristic should be subject to the offense level cap in § 2K2.1. The amendment revises the cap to provide that the cumulative offense level may not exceed level 29 after application of subsections (b)(1) through the new subsection (b)(5), unless subsection (b)(3)(A) applies.

The amendment also includes conforming changes, including to the Commentary to § 2K2.1 and § 2K2.4 (Use of Firearm, Armor-Piercing Ammunition, or Explosive During or in Relation to Certain Crimes), to address the renumbering of the prior § 2K2.1(b)(5) through (9).

4.

Amendment:

The Commentary to § 1B1.10 captioned “Application Notes” is amended in Note 8(B) by inserting after “18 U.S.C. 3583(e)(1).” the following: “

See

§ 5D1.4 (Modification, Early Termination, and Extension of Supervised Release (Policy Statement)).”.

The Commentary to § 4B1.5 captioned “Application Notes” is amended in Note 5 by striking the following:

“

Treatment and Monitoring.—

(A)

Recommended Maximum Term of Supervised Release.—

The statutory maximum term of supervised release is recommended for offenders sentenced under this guideline.

(B)

Recommended Conditions of Probation and Supervised Release.—

Treatment and monitoring are important tools for supervising offenders and should be considered as special conditions of any term of probation or supervised release that is imposed.”;

and by inserting the following:

“

Treatment and Monitoring.—

Treatment and monitoring are important tools for supervising offenders and should be considered as special conditions of any term of probation or supervised release that is imposed.”.

Section 5B1.3(d)(7) is amended by striking “, as defined in Application Note 1 of the Commentary to § 5D1.2 (Term of Supervised Release)”.

The Commentary to § 5B1.3 captioned “Application Note” is amended—

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

and by inserting at the end the following new Note 2:

“2.

Application of Subsection (d)(7).—

For purposes of subsection (d)(7):

‘Sex offense’ means (A) an offense, perpetrated against a minor, under (i) chapter 109A of title 18, United States Code; (ii) chapter 110 of such title, not including a recordkeeping offense; (iii) chapter 117 of such title, not including transmitting information about a minor or filing a factual statement about an alien individual; (iv) an offense under 18 U.S.C. 1201; or (v) an offense under 18 U.S.C. 1591; or (B) an attempt or a conspiracy to commit any offense described in subparagraphs (A)(i) through (v) of this note. Such term does not include an offense under 18 U.S.C. 2250 (Failure to register).

‘Minor’ means (A) an individual who had not attained the age of 18 years; (B) an individual, whether fictitious or not, who a law enforcement officer

represented to a participant (i) had not attained the age of 18 years; and (ii) could be provided for the purposes of engaging in sexually explicit conduct; or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.”.

Chapter Five, Part D is amended by inserting at the beginning the following new Introductory Commentary:

“

Introductory Commentary

The Sentencing Reform Act of 1984 requires the court to assess a wide range of factors ‘in determining whether to include a term of supervised release, and, if a term of supervised release is to be included, in determining the length of the term and the conditions of supervised release.’ 18 U.S.C. 3583(c). These determinations aim to make the imposition and scope of supervised release ‘dependent on the needs of the defendant for supervision.’

See

S. Rep. No. 225, 98th Cong., 1st Sess. 124 (1983). In conducting such an individualized assessment, the court can ‘assure that [those] who will need post-release supervision will receive it’ while ‘prevent[ing] probation system resources from being wasted on supervisory services for releasees who do not need them.’

Id.

at 54;

see also Johnson

v.

United States,

529 U.S. 694, 709 (2000) (‘Supervised release departed from the parole system it replaced by giving district courts the freedom to provide postrelease supervision for those, and only those, who needed it . . . . Congress aimed, then, to use the district courts' discretionary judgment to allocate supervision to those releasees who needed it most.’). Supervised release ‘fulfills rehabilitative ends, distinct from those served by incarceration.’

United States

v.

Johnson,

529 U.S. 53, 59 (2000). Accordingly, a court should consider whether the defendant needs supervision in order to ease transition into the community or to provide further rehabilitation and whether supervision will promote public safety.

See

18 U.S.C. 3583(c), 3553(a)(2)(C));

see also

S. Rep. No. 225, 98th Cong., 1st Sess. 124 (1983) (indicating that a ‘primary goal of [a term of supervised release] is to ease the defendant's transition into the community after the service of a long prison term for a particularly serious offense, or to provide rehabilitation to a defendant who has spent a fairly short period in prison for punishment or other purposes but still needs supervision and training programs after release’).”.

Section 5D1.1 is amended—

by striking subsections (a) and (b) as follows:

“(a) The court shall order a term of supervised release to follow imprisonment—

(1) when required by statute (

see

18 U.S.C. 3583(a)); or

(2) except as provided in subsection (c), when a sentence of imprisonment of more than one year is imposed.

(b) The court may order a term of supervised release to follow imprisonment in any other case.

See

18 U.S.C. 3583(a).”;

and inserting the following new subsections (a) and (b):

“(a) The court shall order a term of supervised release to follow imprisonment when required by statute (

see

18 U.S.C. 3583(a)).

(b) When a term of supervised release is not required by statute, the court should order a term of supervised release to follow imprisonment when warranted by an individualized assessment of the need for supervision.”;

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

“(d) The court should state in open court the reasons for imposing or not imposing a term of supervised release.

See

18 U.S.C. 3553(c).”.

The Commentary to § 5D1.1 captioned “Application Notes” is amended—

by striking Notes 1, 2, and 3 as follows:

“1.

Application of Subsection (a).—

Under subsection (a), the court is required to impose a term of supervised release to follow imprisonment when supervised release is required by statute or, except as provided in subsection (c), when a sentence of imprisonment of more than one year is imposed. The court may depart from this guideline and not impose a term of supervised release if supervised release is not required by statute and the court determines, after considering the factors set forth in Note 3, that supervised release is not necessary.

2.

Application of Subsection (b).—

Under subsection (b), the court may impose a term of supervised release to follow a term of imprisonment in any other case, after considering the factors set forth in Note 3.

3.

Factors to Be Considered.—

(A)

Statutory Factors.—

In determining whether to impose a term of supervised release, the court is required by statute to consider, among other factors:

(i) the nature and circumstances of the offense and the history and characteristics of the defendant;

(ii) the need to afford adequate deterrence to criminal conduct, to protect the public from further crimes of the defendant, and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(iii) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(iv) the need to provide restitution to any victims of the offense.

See

18 U.S.C. 3583(c).

(B)

Criminal History.—

The court should give particular consideration to the defendant's criminal history (which is one aspect of the ‘history and characteristics of the defendant’ in subparagraph (A)(i), above). In general, the more serious the defendant's criminal history, the greater the need for supervised release.

(C)

Substance Abuse.—

In a case in which a defendant sentenced to imprisonment is an abuser of controlled substances or alcohol, it is highly recommended that a term of supervised release also be imposed.

See

§ 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction).

(D)

Domestic Violence.—

If the defendant is convicted for the first time of a domestic violence crime as defined in 18 U.S.C. 3561(b), a term of supervised release is required by statute.

See

18 U.S.C. 3583(a). Such a defendant is also required by statute to attend an approved rehabilitation program, if available within a 50-mile radius of the legal residence of the defendant.

See

18 U.S.C. 3583(d); § 5D1.3(a)(3). In any other case involving domestic violence or stalking in which the defendant is sentenced to imprisonment, it is highly recommended that a term of supervised release also be imposed.”;

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

by inserting at the beginning the following new Notes 1, 2, 3, and 4:

“1.

Individualized Assessment.—

The statutory framework of supervised release aims to ‘assure that [those] who will need post-release supervision will receive it’ while ‘prevent[ing] probation system resources from being wasted on supervisory services for releasees who do not need them.’

See

S. Rep. No. 225, 98th Cong., 1st Sess. 54 (1983). To that end, 18 U.S.C. 3583(c) requires the court to, ‘in determining whether to include a term of supervised release, and, if a term of supervised release is to be included, in determining the length of the term and the conditions of supervised release,’ consider the following:

(A) the nature and circumstances of the offense and the history and characteristics of the defendant (18 U.S.C. 3553(a)(1));

(B) the need to afford adequate deterrence to criminal conduct, to protect the public from further crimes of the defendant, and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner (18 U.S.C. 3553(a)(2)(B)-(D));

(C) the kinds of sentence and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines (18 U.S.C. 3553(a)(4));

(D) any pertinent policy statement issued by the Sentencing Commission (18 U.S.C. 3553(a)(5));

(E) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct (18 U.S.C. 3553(a)(6)); and

(F) the need to provide restitution to any victims of the offense (18 U.S.C. 3553(a)(7)).

See

18 U.S.C. 3583(c).

2.

Criminal History.—

The court should give particular consideration to the defendant's criminal history (which is one aspect of the ‘history and characteristics of the defendant’ in Application Note 1(A) above). In general, the more serious the defendant's criminal history, the greater the need for supervised release.

3.

Substance Abuse.—

In a case in which a defendant sentenced to imprisonment is an abuser of controlled substances or alcohol, it is highly recommended that a term of supervised release also be imposed.

See

§ 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction).

4.

Domestic Violence.—

If the defendant is convicted for the first time of a domestic violence crime as defined in 18 U.S.C. 3561(b), a term of supervised release is required by statute.

See

18 U.S.C. 3583(a). Such a defendant is also required by statute to attend an approved rehabilitation program, if available within a 50-mile radius of the legal residence of the defendant.

See

18 U.S.C. 3583(d); § 5D1.3(a)(3). In any other case involving domestic violence or stalking in which the defendant is sentenced to imprisonment, it is highly recommended that a term of supervised release also be imposed.”;

and by inserting at the end the following new Note 7:

“7.

Evidence-Based Recidivism Reduction Programming.—

Whether a defendant's sentence includes a term of supervised release may impact the application of time credits earned by the defendant under the First Step Act of 2018, Pub. L. 115-391. The First Step Act of 2018 allows individuals in custody who successfully complete evidence-based recidivism reduction programming or productive activities to earn time credits.

See

18 U.S.C. 3632(d)(4)(A). Regarding the application of those time credits, the First Step Act of 2018 provides: ‘If the sentencing court included as a part of the prisoner's sentence a requirement that the prisoner be placed on a term of supervised release after imprisonment pursuant to [18 U.S.C. 3583], the Director of the Bureau of Prisons may transfer the prisoner to begin any such term of supervised release at an earlier date, not to exceed 12 months, based on the application of time credits under [18 U.S.C. 3632].’ 18 U.S.C. 3624(g)(3).”.

Section 5D1.2 is amended—

by striking subsections (a), (b), and (c) as follows:

“(a) Except as provided in subsections (b) and (c), if a term of supervised release is ordered, the length of the term shall be:

(1) At least two years but not more than five years for a defendant convicted of a Class A or B felony.

See

18 U.S.C. 3583(b)(1).

(2) At least one year but not more than three years for a defendant convicted of a Class C or D felony.

See

18 U.S.C. 3583(b)(2).

(3) One year for a defendant convicted of a Class E felony or a Class A misdemeanor.

See

18 U.S.C. 3583(b)(3).

(b) Notwithstanding subdivisions (a)(1) through (3), the length of the term of supervised release shall be not less than the minimum term of years specified for the offense under subdivisions (a)(1) through (3) and may be up to life, if the offense is—

(1) any offense listed in 18 U.S.C. 2332b(g)(5)(B), the commission of which resulted in, or created a foreseeable risk of, death or serious bodily injury to another person; or

(2) a sex offense.

(Policy Statement) If the instant offense of conviction is a sex offense, however, the statutory maximum term of supervised release is recommended.

(c) The term of supervised release imposed shall be not less than any statutorily required term of supervised release.”;

and by inserting the following new subsections (a) and (b):

“(a) If a term of supervised release is ordered, the court shall conduct an individualized assessment to determine the length of the term, which shall not be less than any statutorily required minimum term. Except as otherwise provided by statute, the maximum term of supervised release is as follows:

(1) Not more than five years for a defendant convicted of a Class A or B felony.

See

18 U.S.C. 3583(b)(1).

(2) Not more than three years for a defendant convicted of a Class C or D felony.

See

18 U.S.C. 3583(b)(2).

(3) Not more than one year for a defendant convicted of a Class E felony or a misdemeanor (other than a petty offense).

See

18 U.S.C. 3583(b)(3).

(b) The court should state in open court the reasons for the length of the term imposed.

See

18 U.S.C. 3553(c).”.

The Commentary to § 5D1.2 captioned “Application Notes” is amended—

by striking Note 1 as follows:

“1.

Definitions.

—For purposes of this guideline:

‘Sex offense’ means (A) an offense, perpetrated against a minor, under (i) chapter 109A of title 18, United States Code; (ii) chapter 110 of such title, not including a recordkeeping offense; (iii) chapter 117 of such title, not including transmitting information about a minor or filing a factual statement about an alien individual; (iv) an offense under 18 U.S.C. 1201; or (v) an offense under 18 U.S.C. 1591; or (B) an attempt or a conspiracy to commit any offense described in subdivisions (A)(i) through (v) of this note. Such term does not include an offense under 18 U.S.C. 2250 (Failure to register).

‘Minor’ means (A) an individual who had not attained the age of 18 years; (B) an individual, whether fictitious or not, who a law enforcement officer represented to a participant (i) had not attained the age of 18 years; and (ii) could be provided for the purposes of engaging in sexually explicit conduct; or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.”;

by striking Notes 4, 5, and 6 as follows:

“4.

Factors Considered.—

The factors to be considered in determining the length of a term of supervised release are the same as the factors considered in determining whether to impose such a term.

See

18 U.S.C. 3583(c); Application Note 3 to § 5D1.1 (Imposition of a Term of Supervised Release). The court should ensure that the term imposed on the defendant is long enough to address the purposes of imposing supervised release on the defendant.

5.

Early Termination and Extension.—

The court has authority to terminate or extend a term of supervised release.

See

18 U.S.C. 3583(e)(1), (2). The court is encouraged to exercise this authority in appropriate cases. The prospect of exercising this authority is a factor the court may wish to consider in determining the length of a term of

supervised release. For example, the court may wish to consider early termination of supervised release if the defendant is an abuser of narcotics, other controlled substances, or alcohol who, while on supervised release, successfully completes a treatment program, thereby reducing the risk to the public from further crimes of the defendant.

6.

Application of Subsection (c).—

Subsection (c) specifies how a statutorily required minimum term of supervised release may affect the minimum term of supervised release provided by the guidelines.

For example, if subsection (a) provides a range of two years to five years, but the relevant statute requires a minimum term of supervised release of three years and a maximum term of life, the term of supervised release provided by the guidelines is restricted by subsection (c) to three years to five years. Similarly, if subsection (a) provides a range of two years to five years, but the relevant statute requires a minimum term of supervised release of five years and a maximum term of life, the term of supervised release provided by the guidelines is five years.

The following example illustrates the interaction of subsections (a) and (c) when subsection (b) is also involved. In this example, subsection (a) provides a range of two years to five years; the relevant statute requires a minimum term of supervised release of five years and a maximum term of life; and the offense is a sex offense under subsection (b). The effect of subsection (b) is to raise the maximum term of supervised release from five years (as provided by subsection (a)) to life, yielding a range of two years to life. The term of supervised release provided by the guidelines is then restricted by subsection (c) to five years to life. In this example, a term of supervised release of more than five years would be a guideline sentence. In addition, subsection (b) contains a policy statement recommending that the maximum—a life term of supervised release—be imposed.”;

by redesignating Notes 2 and 3 as Notes 4 and 5, respectively;

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

“1.

Individualized Assessment.—

When conducting an individualized assessment to determine the length of a term of supervised release, the factors to be considered are the same as the factors considered in determining whether to impose such a term.

See

18 U.S.C. 3583(c); Application Note 1 to § 5D1.1 (Imposition of a Term of Supervised Release). The court should ensure that the term imposed on the defendant is sufficient, but not greater than necessary, to address the purposes of imposing supervised release on the defendant.

2.

Terrorism and Sex Offenses.—

Congress has authorized a term of supervised release that exceeds the maximum terms described in subsection (a) for certain serious offenses.

See

18 U.S.C. 3583(j), (k). For certain terrorism offenses, the authorized term of supervised release is any term of years or life. 18 U.S.C. 3583(j). For certain sex offenses, the authorized term of supervised release is any term of years not less than five, or up to life. 18 U.S.C. 3583(k).

3.

Drug Offenses.—

For certain drug offenses, Congress has established statutory minimum terms of supervised release.

See, e.g.,

21 U.S.C. 841(b), 960(b) (providing minimum terms of supervised release depending on drug type and quantity and criminal history).”;

in Note 4 (as so redesignated) by striking “shall be determined” and inserting “is determined”;

in Note 5 (as so redesignated) by striking “or the guidelines”;

and by inserting at the end the following new Note 6:

“6.

Early Termination and Extension.—

The court has authority to terminate or extend a term of supervised release.

See

18 U.S.C. 3583(e)(1), (2); § 5D1.4 (Modification, Early Termination, and Extension of Supervised Release (Policy Statement)).”.

The Commentary to § 5D1.2 is amended by striking the Commentary captioned “Background” in its entirety as follows:

“

Background:

This section specifies the length of a term of supervised release that is to be imposed. Subsection (c) applies to statutes, such as the Anti-Drug Abuse Act of 1986, that require imposition of a specific minimum term of supervised release.”.

Section 5D1.3 is amended—

by striking subsections (b), (c), (d), and (e) as follows:

“(b)

Discretionary Conditions

The court may impose other conditions of supervised release to the extent that such conditions (1) are reasonably related to (A) the nature and circumstances of the offense and the history and characteristics of the defendant; (B) the need for the sentence imposed to afford adequate deterrence to criminal conduct; (C) the need to protect the public from further crimes of the defendant; and (D) the need to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; and (2) involve no greater deprivation of liberty than is reasonably necessary for the purposes set forth above and are consistent with any pertinent policy statements issued by the Sentencing Commission.

(c)

‘Standard’ Conditions (Policy Statement)

The following ‘standard’ conditions are recommended for supervised release. Several of the conditions are expansions of the conditions required by statute:

(1) The defendant shall report to the probation office in the federal judicial district where he or she is authorized to reside within 72 hours of release from imprisonment, unless the probation officer instructs the defendant to report to a different probation office or within a different time frame.

(2) After initially reporting to the probation office, the defendant will receive instructions from the court or the probation officer about how and when to report to the probation officer, and the defendant shall report to the probation officer as instructed.

(3) The defendant shall not knowingly leave the federal judicial district where he or she is authorized to reside without first getting permission from the court or the probation officer.

(4) The defendant shall answer truthfully the questions asked by the probation officer.

(5) The defendant shall live at a place approved by the probation officer. If the defendant plans to change where he or she lives or anything about his or her living arrangements (such as the people the defendant lives with), the defendant shall notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10 days in advance is not possible due to unanticipated circumstances, the defendant shall notify the probation officer within 72 hours of becoming aware of a change or expected change.

(6) The defendant shall allow the probation officer to visit the defendant at any time at his or her home or elsewhere, and the defendant shall permit the probation officer to take any items prohibited by the conditions of the defendant's supervision that he or she observes in plain view.

(7) The defendant shall work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses the defendant from doing so. If the defendant does not have full-time employment he or she shall try to find full-time employment, unless the probation officer excuses the defendant from doing so. If the

defendant plans to change where the defendant works or anything about his or her work (such as the position or the job responsibilities), the defendant shall notify the probation officer at least 10 days before the change. If notifying the probation officer in advance is not possible due to unanticipated circumstances, the defendant shall notify the probation officer within 72 hours of becoming aware of a change or expected change.

(8) The defendant shall not communicate or interact with someone the defendant knows is engaged in criminal activity. If the defendant knows someone has been convicted of a felony, the defendant shall not knowingly communicate or interact with that person without first getting the permission of the probation officer.

(9) If the defendant is arrested or questioned by a law enforcement officer, the defendant shall notify the probation officer within 72 hours.

(10) The defendant shall not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (

i.e.,

anything that was designed, or was modified for, the specific purpose of causing bodily injury or death to another person, such as nunchakus or tasers).

(11) The defendant shall not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without first getting the permission of the court.

(12) If the probation officer determines that the defendant poses a risk to another person (including an organization), the probation officer may require the defendant to notify the person about the risk and the defendant shall comply with that instruction. The probation officer may contact the person and confirm that the defendant has notified the person about the risk.

(13) The defendant shall follow the instructions of the probation officer related to the conditions of supervision.

(d)

‘Special’ Conditions (Policy Statement)

The following ‘special’ conditions of supervised release are recommended in the circumstances described and, in addition, may otherwise be appropriate in particular cases:

(1)

Support of Dependents

(A) If the defendant has one or more dependents—a condition specifying that the defendant shall support his or her dependents.

(B) If the defendant is ordered by the government to make child support payments or to make payments to support a person caring for a child—a condition specifying that the defendant shall make the payments and comply with the other terms of the order.

(2)

Debt Obligations

If an installment schedule of payment of restitution or a fine is imposed—a condition prohibiting the defendant from incurring new credit charges or opening additional lines of credit without approval of the probation officer unless the defendant is in compliance with the payment schedule.

(3)

Access to Financial Information

If the court imposes an order of restitution, forfeiture, or notice to victims, or orders the defendant to pay a fine—a condition requiring the defendant to provide the probation officer access to any requested financial information.

(4)

Substance Abuse

If the court has reason to believe that the defendant is an abuser of narcotics, other controlled substances or alcohol—(A) a condition requiring the defendant to participate in a program approved by the United States Probation Office for substance abuse, which program may include testing to determine whether the defendant has reverted to the use of drugs or alcohol; and (B) a condition specifying that the defendant shall not use or possess alcohol.

(5)

Mental Health Program Participation

If the court has reason to believe that the defendant is in need of psychological or psychiatric treatment—a condition requiring that the defendant participate in a mental health program approved by the United States Probation Office.

(6)

Deportation

If (A) the defendant and the United States entered into a stipulation of deportation pursuant to section 238(c)(5) of the Immigration and Nationality Act (8 U.S.C. 1228(c)(5)*); or (B) in the absence of a stipulation of deportation, if, after notice and hearing pursuant to such section, the Attorney General demonstrates by clear and convincing evidence that the alien is deportable—a condition ordering deportation by a United States district court or a United States magistrate judge.

* So in original. Probably should be 8 U.S.C. 1228(d)(5).

(7)

Sex Offenses

If the instant offense of conviction is a sex offense, as defined in Application Note 1 of the Commentary to § 5D1.2 (Term of Supervised Release)—

(A) A condition requiring the defendant to participate in a program approved by the United States Probation Office for the treatment and monitoring of sex offenders.

(B) A condition limiting the use of a computer or an interactive computer service in cases in which the defendant used such items.

(C) A condition requiring the defendant to submit to a search, at any time, with or without a warrant, and by any law enforcement or probation officer, of the defendant's person and any property, house, residence, vehicle, papers, computer, other electronic communication or data storage devices or media, and effects upon reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct by the defendant, or by any probation officer in the lawful discharge of the officer's supervision functions.

(8)

Unpaid Restitution, Fines, or Special Assessments

If the defendant has any unpaid amount of restitution, fines, or special assessments, the defendant shall notify the probation officer of any material change in the defendant's economic circumstances that might affect the defendant's ability to pay.

(e)

Additional Conditions (Policy Statement)

The following ‘special conditions’ may be appropriate on a case-by-case basis:

(1)

Community Confinement

Residence in a community treatment center, halfway house or similar facility may be imposed as a condition of supervised release.

See

§ 5F1.1 (Community Confinement).

(2)

Home Detention

Home detention may be imposed as a condition of supervised release, but only as a substitute for imprisonment.

See

§ 5F1.2 (Home Detention).

(3)

Community Service

Community service may be imposed as a condition of supervised release.

See

§ 5F1.3 (Community Service).

(4)

Occupational Restrictions

Occupational restrictions may be imposed as a condition of supervised release.

See

§ 5F1.5 (Occupational Restrictions).

(5)

Curfew

A condition imposing a curfew may be imposed if the court concludes that restricting the defendant to his place of residence during evening and nighttime hours is necessary to protect the public from crimes that the defendant might commit during those hours, or to assist in the rehabilitation of the defendant. Electronic monitoring may be used as a means of surveillance to ensure compliance with a curfew order.

(6)

Intermittent Confinement

Intermittent confinement (custody for intervals of time) may be ordered as a condition of supervised release during

the first year of supervised release, but only for a violation of a condition of supervised release in accordance with 18 U.S.C. 3583(e)(2) and only when facilities are available.

See

§ 5F1.8 (Intermittent Confinement).”;

and inserting at the end the following new subsection (b):

“(b)

Discretionary Conditions

(1)

In General.—

The court should conduct an individualized assessment to determine what, if any, other conditions of supervised release are warranted.

Such conditions are warranted to the extent that they (A) are reasonably related to (i) the nature and circumstances of the offense and the history and characteristics of the defendant; (ii) the need for the sentence imposed to afford adequate deterrence to criminal conduct; (iii) the need to protect the public from further crimes of the defendant; and (iv) the need to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; and (B) involve no greater deprivation of liberty than is reasonably necessary for the purposes set forth above and are consistent with any pertinent policy statements issued by the Sentencing Commission.

See

18 U.S.C. 3583(d).

(2)

‘Standard’ Conditions (Policy Statement)

The following are ‘standard’ conditions of supervised release, which the court may modify, expand, or omit in appropriate cases:

(A) The defendant shall report to the probation office in the federal judicial district where he or she is authorized to reside within 72 hours of release from imprisonment, unless the probation officer instructs the defendant to report to a different probation office or within a different time frame.

(B) After initially reporting to the probation office, the defendant will receive instructions from the court or the probation officer about how and when to report to the probation officer, and the defendant shall report to the probation officer as instructed.

(C) The defendant shall not knowingly leave the federal judicial district where he or she is authorized to reside without first getting permission from the court or the probation officer.

(D) The defendant shall answer truthfully the questions asked by the probation officer.

(E) The defendant shall live at a place approved by the probation officer. If the defendant plans to change where he or she lives or anything about his or her living arrangements (such as the people the defendant lives with), the defendant shall notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10 days in advance is not possible due to unanticipated circumstances, the defendant shall notify the probation officer within 72 hours of becoming aware of a change or expected change.

(F) The defendant shall allow the probation officer to visit the defendant at any time at his or her home or elsewhere, and the defendant shall permit the probation officer to take any items prohibited by the conditions of the defendant's supervision that he or she observes in plain view.

(G) The defendant shall work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses the defendant from doing so. If the defendant does not have full-time employment he or she shall try to find full-time employment, unless the probation officer excuses the defendant from doing so. If the defendant plans to change where the defendant works or anything about his or her work (such as the position or the job responsibilities), the defendant shall notify the probation officer at least 10 days before the change. If notifying the probation officer in advance is not possible due to unanticipated circumstances, the defendant shall notify the probation officer within 72 hours of becoming aware of a change or expected change.

(H) The defendant shall not communicate or interact with someone the defendant knows is engaged in criminal activity. If the defendant knows someone has been convicted of a felony, the defendant shall not knowingly communicate or interact with that person without first getting the permission of the probation officer.

(I) If the defendant is arrested or questioned by a law enforcement officer, the defendant shall notify the probation officer within 72 hours.

(J) The defendant shall not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (

i.e.,

anything that was designed, or was modified for, the specific purpose of causing bodily injury or death to another person, such as nunchakus or tasers).

(K) The defendant shall not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without first getting the permission of the court.

(L) If the probation officer determines that the defendant poses a risk to another person (including an organization), the probation officer may require the defendant to notify the person about the risk and the defendant shall comply with that instruction. The probation officer may contact the person and confirm that the defendant has notified the person about the risk.

(M) The defendant shall follow the instructions of the probation officer related to the conditions of supervision.

(3)

‘Special’ Conditions (Policy Statement)

One or more conditions from the following non-exhaustive list of ‘special’ conditions of supervised release may be appropriate in a particular case, including in the circumstances described therein:

(A)

Support of Dependents

(i) If the defendant has one or more dependents—a condition specifying that the defendant shall support his or her dependents.

(ii) If the defendant is ordered by the government to make child support payments or to make payments to support a person caring for a child—a condition specifying that the defendant shall make the payments and comply with the other terms of the order.

(B)

Debt Obligations

If an installment schedule of payment of restitution or a fine is imposed—a condition prohibiting the defendant from incurring new credit charges or opening additional lines of credit without approval of the probation officer unless the defendant is in compliance with the payment schedule.

(C)

Access to Financial Information

If the court imposes an order of restitution, forfeiture, or notice to victims, or orders the defendant to pay a fine—a condition requiring the defendant to provide the probation officer access to any requested financial information.

(D)

Substance Abuse

If the court has reason to believe that the defendant is an abuser of narcotics, other controlled substances or alcohol—(i) a condition requiring the defendant to participate in a program approved by the United States Probation Office for substance abuse, which program may include testing to determine whether the defendant has reverted to the use of drugs or alcohol; and (ii) a condition specifying that the defendant shall not use or possess alcohol.

(E)

Mental Health Program Participation

If the court has reason to believe that the defendant is in need of psychological or psychiatric treatment—a condition requiring that the defendant participate in a mental health program approved by the United States Probation Office.

(F)

Deportation

If (i) the defendant and the United States entered into a stipulation of

deportation pursuant to section 238(c)(5) of the Immigration and Nationality Act (8 U.S.C. 1228(c)(5)*); or (ii) in the absence of a stipulation of deportation, if, after notice and hearing pursuant to such section, the Attorney General demonstrates by clear and convincing evidence that the alien is deportable—a condition ordering deportation by a United States district court or a United States magistrate judge.

* So in original. Probably should be 8 U.S.C. 1228(d)(5).

(G)

Sex Offenses

If the instant offense of conviction is a sex offense—

(i) A condition requiring the defendant to participate in a program approved by the United States Probation Office for the treatment and monitoring of sex offenders.

(ii) A condition limiting the use of a computer or an interactive computer service in cases in which the defendant used such items.

(iii) A condition requiring the defendant to submit to a search, at any time, with or without a warrant, and by any law enforcement or probation officer, of the defendant's person and any property, house, residence, vehicle, papers, computer, other electronic communication or data storage devices or media, and effects upon reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct by the defendant, or by any probation officer in the lawful discharge of the officer's supervision functions.

(iv) A condition prohibiting the defendant from communicating, or otherwise interacting, with any victim of the offense, either directly or through someone else.

(H)

Unpaid Restitution, Fines, or Special Assessments

If the defendant has any unpaid amount of restitution, fines, or special assessments, the defendant shall notify the probation officer of any material change in the defendant's economic circumstances that might affect the defendant's ability to pay.

(I)

Educational or Vocational Training

If the court has reason to believe that a course of study or vocational training would be appropriate and would equip the defendant for suitable employment, a condition specifying that the defendant participate in a General Education Development (or similar) program, vocational training, or skills training, unless the probation officer excuses the defendant from doing so.

(J)

Victim Contact

If there is an identifiable victim of the offense, a condition prohibiting the defendant from communicating, or otherwise interacting, with any of the victims, either directly or through someone else.

(K)

Community Confinement

Residence in a community treatment center, halfway house or similar facility may be imposed as a condition of supervised release.

See

§ 5F1.1 (Community Confinement).

(L)

Home Detention

Home detention may be imposed as a condition of supervised release, but only as a substitute for imprisonment.

See

§ 5F1.2 (Home Detention).

(M)

Community Service

Community service may be imposed as a condition of supervised release.

See

§ 5F1.3 (Community Service).

(N)

Occupational Restrictions

Occupational restrictions may be imposed as a condition of supervised release.

See

§ 5F1.5 (Occupational Restrictions).

(O)

Curfew

A condition imposing a curfew may be imposed if the court concludes that restricting the defendant to his place of residence during evening and nighttime hours is necessary to protect the public from crimes that the defendant might commit during those hours, or to assist in the rehabilitation of the defendant. Electronic monitoring may be used as a means of surveillance to ensure compliance with a curfew order.

(P)

Intermittent Confinement

Intermittent confinement (custody for intervals of time) may be ordered as a condition of supervised release during the first year of supervised release, but only for a violation of a condition of supervised release in accordance with 18 U.S.C. 3583(e)(2) and only when facilities are available.

See

§ 5F1.8 (Intermittent Confinement).”.

The Commentary to § 5D1.3 captioned “Applications Note” is amended—

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

by redesignating Note 1 as Note 2;

by inserting at the beginning the following new Note 1:

“1.

Individualized Assessment.—

When conducting an individualized assessment under this section, the court must consider the same factors used to determine whether to impose a term of supervised release, and shall impose conditions of supervision not required by statute only to the extent such conditions meet the requirements listed at 18 U.S.C. 3583(d).

See

18 U.S.C. 3583(c), (d); Application Note 1 to § 5D1.1 (Imposition of a Term of Supervised Release).”;

in Note 2 (as so redesignated) by striking “(c)(4)” both places it appears and inserting “(b)(2)(D)”;

and by inserting at the end the following new Note 3:

“3.

Application of Subsection (b)(3)(G).—

For purposes of subsection (b)(3)(G):

‘Sex offense’ means (A) an offense, perpetrated against a minor, under (i) chapter 109A of title 18, United States Code; (ii) chapter 110 of such title, not including a recordkeeping offense; (iii) chapter 117 of such title, not including transmitting information about a minor or filing a factual statement about an alien individual; (iv) an offense under 18 U.S.C. 1201; or (v) an offense under 18 U.S.C. 1591; or (B) an attempt or a conspiracy to commit any offense described in subparagraphs (A)(i) through (v) of this note. Such term does not include an offense under 18 U.S.C. 2250 (Failure to register).

‘Minor’ means (A) an individual who had not attained the age of 18 years; (B) an individual, whether fictitious or not, who a law enforcement officer represented to a participant (i) had not attained the age of 18 years; and (ii) could be provided for the purposes of engaging in sexually explicit conduct; or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.”.

Chapter Five, Part D is amended by inserting at the end the following new § 5D1.4:

“§ 5D1.4.

Modification, Early Termination, and Extension of Supervised Release (Policy Statement)

(a)

Modification of Conditions.—

At any time prior to the expiration or termination of the term of supervised release, the court may modify, reduce, or enlarge the conditions of supervised release whenever warranted by an individualized assessment of the appropriateness of existing conditions.

See

18 U.S.C. 3583(e)(2). The court is encouraged to conduct such an assessment in consultation with the probation officer after the defendant's release from imprisonment.

(b)

Early Termination.—

Any time after the expiration of one year of supervised release and after an individualized assessment of the need for ongoing supervision, the court may terminate the remaining term of supervision and discharge the defendant if the court determines, following consultation with the government and the probation officer, that the termination is warranted by the conduct of the defendant and in the interest of justice.

See

18 U.S.C. 3583(e)(1).

(c)

Extending a Term of Supervised Release.—

The court may, at any time prior to the expiration or termination of

a term of supervised release, extend the term of supervised release if less than the maximum authorized term of supervised release was previously imposed and the extension is warranted by an individualized assessment of the need for further supervision.

See

18 U.S.C. 3583(e)(2).

Commentary

Application Notes:

1.

Individualized Assessment.—

(A)

In General.—

When making an individualized assessment under this section, the factors to be considered are the same factors used to determine whether to impose a term of supervised release.

See

18 U.S.C. 3583(c), (e); Application Note 1 to § 5D1.1 (Imposition of a Term of Supervised Release).

(B)

Early Termination.—

When determining whether to terminate the remaining term of supervised release under subsection (b), the court may wish to consider such factors as:

(i) any history of court-reported violations over the term of supervision;

(ii) the ability of the defendant to lawfully self-manage (

e.g.,

the ability to problem-solve and avoid situations that may result in a violation of a condition of supervised release or new criminal charges);

(iii) the defendant's substantial compliance with all conditions of supervision;

(iv) the defendant's engagement in appropriate prosocial activities and the existence or lack of prosocial support to remain lawful beyond the period of supervision;

(v) a demonstrated reduction in risk level or maintenance of the lowest category of risk over the period of supervision; and

(vi) whether termination will jeopardize public safety, as evidenced by the nature of the defendant's offense, the defendant's criminal history, the defendant's record while incarcerated, the defendant's efforts to reintegrate into the community and avoid recidivism, any statements or information provided by the victims of the offense, and other factors the court finds relevant.

2.

Notification of Victims.—

When determining whether to modify any condition of supervised release that would be relevant to a victim or to terminate the remaining term of supervised release, the Commission encourages the court, in coordination with the government, to ensure that any victim of the offense is reasonably, accurately, and timely notified, and provided, to the extent practicable, with an opportunity to be reasonably heard, unless any such victim previously requested not to be notified.

3.

Application of Subsection (c).—

Subsection (c) addresses a court's authority to extend a term of supervised release. In some cases, extending a term may be more appropriate than taking other measures, such as revoking the term of supervised release.”.

The Commentary to § 5G1.3 captioned “Application Notes” is amended in Note 4(C) by striking “Application Note 4 and subsection (f) of § 7B1.3 (Revocation of Probation or Supervised Release)” and inserting “Application Note 3 and subsection (f) of § 7B1.3 (Revocation of Probation)”.

Section 5H1.3 is amended in the paragraph that begins “Mental and emotional conditions may be relevant in determining the conditions” by striking “5D1.3(d)(5)” and inserting “5D1.3(b)(3)(E)”.

Section 5H1.4 is amended in the paragraph that begins “Drug or alcohol dependence or abuse” by striking “§ 5D1.3(d)(4)” and inserting “§ 5D1.3(b)(3)(D)”.

Chapter Seven, Part A is amended—

in Subpart 1 by striking the following:

“Under 28 U.S.C. 994(a)(3), the Sentencing Commission is required to issue guidelines or policy statements applicable to the revocation of probation and supervised release. At this time, the Commission has chosen to promulgate policy statements only. These policy statements will provide guidance while allowing for the identification of any substantive or procedural issues that require further review. The Commission views these policy statements as evolutionary and will review relevant data and materials concerning revocation determinations under these policy statements. Revocation guidelines will be issued after federal judges, probation officers, practitioners, and others have the opportunity to evaluate and comment on these policy statements.”;

and inserting the following:

“Under 28 U.S.C. 994(a)(3), the Sentencing Commission is required to issue guidelines or policy statements applicable to the revocation of probation and supervised release. The Commission chose to promulgate policy statements only. These policy statements were intended to provide guidance and allow for the identification of any substantive or procedural issues that require further review. The Commission viewed these policy statements as evolutionary and intended to review relevant data and materials concerning revocation determinations under these policy statements. Updated policies would be issued after federal judges, probation officers, practitioners, and others had the opportunity to evaluate and comment on these policy statements.”;

in Subpart 3(a), in the paragraph that begins “Moreover, the Commission” by striking “anticipates” and inserting “anticipated”; by striking “will provide” and inserting “would provide”; by striking “represent” and inserting “represented”; and by striking “intends to promulgate revocation guidelines” and inserting “intended to promulgate updated revocation policies”;

in Subpart 3(b)—

in the paragraph that begins “The Commission debated” by striking “debated” and inserting “initially debated”;

and in the paragraph that begins “Given the relatively narrow ranges” by striking “this time” and inserting “that time”;

in Subpart 4—

in the paragraph that begins “The revocation policy statements” by striking “categorize” and inserting “categorized”; and by striking “fix” and inserting “fixed”;

and in the paragraph that begins “The Commission” by striking “has elected” and inserting “initially elected”; by striking “the Commission determined” and inserting “the Commission had determined”; and by striking “the Commission has initially concluded” and inserting “the Commission initially concluded”;

by striking Subpart 5 as follows:

“

5. A Concluding Note

The Commission views these policy statements for revocation of probation and supervised release as the first step in an evolutionary process. The Commission expects to issue revocation guidelines after judges, probation officers, and practitioners have had an opportunity to apply and comment on the policy statements.

In developing these policy statements, the Commission assembled two outside working groups of experienced probation officers representing every circuit in the nation, officials from the Probation Division of the Administrative Office of the U.S. Courts, the General Counsel's office at the Administrative Office of the U.S. Courts, and the U.S. Parole Commission. In addition, a number of federal judges, members of the Criminal Law and Probation Administration Committee of the Judicial Conference, and representatives from the Department of Justice and federal and community defenders provided considerable input into this effort.”;

and by inserting at the end the following new Subpart 5:

“

5. Updating the Approach

The Commission viewed the original policy statements for revocation of probation and supervised release as the first step in an evolutionary process. The Commission intended to revise its approach after judges, probation officers, and practitioners had an opportunity to apply and comment on the policy statements. Since the promulgation of those policy statements, a broad array of stakeholders has identified the need for more flexible, individualized responses to violations of supervised release.

In response, the Commission updated the policy statements in this chapter to ensure judges have the discretion necessary to properly manage supervised release. The revised policy statements encourage judges to take an individualized approach in: (1) responding to reports of non-compliance before initiating revocation proceedings; (2) addressing violations found during revocation proceedings; and (3) imposing a sentence of imprisonment upon revocation. These changes are intended to better allocate taxpayer dollars and probation resources, encourage compliance and improve public safety, and facilitate the reentry and rehabilitation of defendants.

This chapter proceeds in two parts: Part B addresses violations of probation, and Part C addresses violations of supervised release. Both parts maintain an approach in which the court addresses primarily the defendant's failure to comply with court-ordered conditions, while reflecting, to a limited degree, the seriousness of the underlying violation and the criminal history of the individual. The Commission determined that violations of probation and supervised release should be addressed separately to reflect their different purposes. While probation serves all the goals of sentencing, including punishment, supervised release primarily ‘fulfills rehabilitative ends, distinct from those served by incarceration.’

United States

v.

Johnson,

529 U.S. 53, 59 (2000). In light of these differences, Part B continues to recommend revocation for most probation violations. Part C encourages courts to consider a graduated response to a violation of supervised release, including considering all available options focused on facilitating a defendant's transition into the community and promoting public safety. Parts B and C both recognize the important role of the court, which is best situated to consider the individual defendant's risks and needs and respond accordingly within its broad discretion.”.

Chapter Seven, Part B is amended—

in the heading by striking “Probation and Supervised Release Violations” and inserting “Violations of Probation”;

and in the Introductory Commentary—

in the paragraph that begins “The policy statements” by striking “chapter” and inserting “part”; and by striking “supervision” and inserting “probation”;

by striking the following paragraph:

“Because these policy statements focus on the violation of the court-ordered supervision, this chapter, to the extent permitted by law, treats violations of the conditions of probation and supervised release as functionally equivalent.”;

by striking the last paragraph as follows:

“This chapter is applicable in the case of a defendant under supervision for a felony or Class A misdemeanor. Consistent with § 1B1.9 (Class B or C Misdemeanors and Infractions), this chapter does not apply in the case of a defendant under supervision for a Class B or C misdemeanor or an infraction.”;

and by inserting at the end the following new paragraph:

“This part is applicable in the case of a defendant on probation for a felony or Class A misdemeanor. Consistent with § 1B1.9 (Class B or C Misdemeanors and Infractions), this part does not apply in the case of a defendant on probation for a Class B or C misdemeanor or an infraction.”.

Section 7B1.1 is amended—

in subsection (a) by striking “and supervised release”;

in subsection (a)(3) by striking “supervision” and inserting “probation”;

and in subsection (b) by striking “supervision” and inserting “probation”.

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

in Note 1 by striking “18 U.S.C. 3563(a)(1) and 3583(d), a mandatory condition of probation and supervised release” and inserting “18 U.S.C. 3563(a)(1), a mandatory condition of probation”;

and in Note 5 by striking “under supervision” and inserting “on probation”.

Section 7B1.2 is amended in the heading by striking “and Supervised Release”.

Section 7B1.3 is amended—

in the heading by striking “or Supervised Release”;

in subsection (a)(1) by striking “or supervised release”;

in subsection (a)(2) by striking “(A) revoke probation or supervised release; or (B) extend the term of probation or supervised release and/or modify the conditions of supervision” and inserting “(A) revoke probation; or (B) extend the term of probation and/or modify the conditions thereof”;

in subsection (b) by striking “or supervised release”;

in subsection (e) by striking “or supervised release” both places such phrase appears;

in subsection (f) by striking “or supervised release” both places such phrase appears;

in subsection (g) by striking the following:

“(1) If probation is revoked and a term of imprisonment is imposed, the provisions of §§ 5D1.1-1.3 shall apply to the imposition of a term of supervised release.

(2) If supervised release is revoked, the court may include a requirement that the defendant be placed on a term of supervised release upon release from imprisonment. The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release. 18 U.S.C. 3583(h).”;

and inserting the following:

“If probation is revoked and a term of imprisonment is imposed, the provisions of §§ 5D1.1-1.3 shall apply to the imposition of a term of supervised release.”.

The Commentary to § 7B1.3 captioned “Application Notes” is amended—

in Note 1 by striking “or supervised release”; and by striking “supervision” both places such term appears and inserting “probation”;

by striking Note 2 as follows:

“2. The provisions for the revocation, as well as early termination and extension, of a term of supervised release are found in 18 U.S.C. 3583(e), (g)-(i). Under 18 U.S.C. 3583(h) (effective September 13, 1994), the court, in the case of revocation of supervised release, may order an additional period of supervised release to follow imprisonment.”;

by redesignating Notes 3, 4, and 5 as Notes 2, 3, and 4, respectively;

in Note 2 (as so redesignated) by striking “or supervised release”; and by striking “Bureau of Prisons” and inserting “Federal Bureau of Prisons”;

in Note 3 (as so redesignated) by striking “or supervised release” both places such phrase appears;

and in Note 4 (as so redesignated) by striking “. Intermittent confinement is

authorized as a condition of supervised release during the first year of supervised release, but only for a violation of a condition of supervised release in accordance with 18 U.S.C. 3583(e)(2) and only when facilities are available.

See

§ 5F1.8 (Intermittent Confinement)” and inserting “;

see also

§ 5F1.8 (Intermittent Confinement)”.

Section 7B1.4 is amended in the heading by striking “

Imprisonment”

and inserting “

Imprisonment—Probation”.

Section 7B1.4(a) is amended in the Table—

in the heading by striking “

Revocation Table”

and inserting “

Probation Revocation Table”;

and by striking the following:

“

Grade A (1)

Except as provided in subdivision (2) below:

12-18 15-21 18-24 24-30 30-37 33-41.

(2)

Where the defendant was on probation or supervised release as a result of a sentence for a Class A felony:

24-30 27-33 30-37 37-46 46-57 51-63.

* The criminal history category is the category applicable at the time the defendant originally was sentenced to a term of supervision.”;

and inserting the following:

“

Grade A

12-18 15-21 18-24 24-30 30-37 33-41.

* The criminal history category is the category applicable at the time the defendant originally was sentenced to a term of probation.”.

The Commentary to § 7B1.4 captioned “Application Notes” is amended—

in Note 1 by striking the following:

“The criminal history category to be used in determining the applicable range of imprisonment in the Revocation Table is the category determined at the time the defendant originally was sentenced to the term of supervision. The criminal history category is not to be recalculated because the ranges set forth in the Revocation Table have been designed to take into account that the defendant violated supervision. In the rare case in which no criminal history category was determined when the defendant originally was sentenced to the term of supervision being revoked, the court shall determine the criminal history category that would have been applicable at the time the defendant originally was sentenced to the term of supervision. (

See

the criminal history provisions of §§ 4A1.1-4B1.4.)”;

and inserting the following:

“The criminal history category to be used in determining the applicable range of imprisonment in the Probation Revocation Table is the category determined at the time the defendant originally was sentenced to the term of probation. The criminal history category is not to be recalculated because the ranges set forth in the Probation Revocation Table have been designed to take into account that the defendant violated probation.

Example:

A defendant, who was originally sentenced in 2022, was determined to have a criminal history category of II due in part to having committed the offense ‘while under any criminal justice sentence.’

See

§ 4A1.1(d) (Criminal History Category) (Nov. 2021). For purposes of determining the applicable range of imprisonment in the Probation Revocation Table, the defendant's criminal history category is category II, regardless of whether the defendant's criminal history category would be reduced for other purposes based on the retroactive application of Part A of Amendment 821 pursuant to § 1B1.10 (Reduction of Imprisonment as a Result of Amended Guideline Range (Policy Statement)).

See

USSG App. C, Amendment 825 (effective November 1, 2023).

In the rare case in which no criminal history category was determined when the defendant originally was sentenced to the term of probation being revoked, the court shall determine the criminal history category that would have been applicable at the time the defendant originally was sentenced to the term of probation. (

See

the criminal history provisions of §§ 4A1.1-4B1.4.)”;

in Note 2 by striking “Revocation Table” and inserting “Probation Revocation Table”; and by striking “supervision” both places such term appears and inserting “probation”;

in Note 3 by striking “under supervision” and inserting “on probation”;

in Note 5 by striking “or supervised release” both places such phrase appears; and by striking “18 U.S.C. 3565(b), 3583(g)” and inserting “18 U.S.C. 3565(b)”;

and in Note 6 by striking “under 18 U.S.C. 3565(b) and 3583(g). 18 U.S.C. 3563(a), 3583(d)” and inserting “under 18 U.S.C. 3565(b). 18 U.S.C. 3563(a)”.

Section 7B1.5 is amended—

in the heading by striking “

Under Supervision

” and inserting “

on Probation

”;

by striking subsections (a), (b), and (c) as follows:

“(a) Upon revocation of probation, no credit shall be given (toward any sentence of imprisonment imposed) for any portion of the term of probation served prior to revocation.

(b) Upon revocation of supervised release, no credit shall be given (toward any term of imprisonment ordered) for time previously served on post-release supervision.

(c)

Provided,

that in the case of a person serving a period of supervised release on a foreign sentence under the provisions of 18 U.S.C. 4106A, credit shall be given for time on supervision prior to revocation, except that no credit shall be given for any time in escape or absconder status.”;

and inserting the following:

“Upon revocation of probation, no credit shall be given (toward any sentence of imprisonment imposed) for any portion of the term of probation served prior to revocation.”.

The Commentary to § 7B1.5 is amended by striking the Commentary captioned “Application Note” in its entirety as follows:

“

Application Note:

1. Subsection (c) implements 18 U.S.C. 4106A(b)(1)(C), which provides that the combined periods of imprisonment and supervised release in transfer treaty cases shall not exceed the term of imprisonment imposed by the foreign court.”.

The Commentary to § 7B1.5 captioned “Background” is amended by striking “or supervised release”; by striking “with supervision” and inserting “with probation”; and by striking “under supervision” and inserting “on probation”.

Chapter Seven is amended by inserting at the end the following new Part C:

“Part C—Violations of Supervised Release

Introductory Commentary

At the time of original sentencing, the court may—and in some cases, must—impose a term of supervised release to follow the sentence of imprisonment.

See

18 U.S.C. 3583(a). During that term, the court may receive allegations that the defendant has violated a condition of supervision. In responding to such allegations, addressing a violation found during revocation proceedings, and imposing a sentence upon revocation, the court should conduct the same kind of individualized assessment used ‘in determining whether to include a term of supervised release, and, if a term of supervised release is to be included, in determining the length of the term and the conditions of supervised release.’

See

18 U.S.C. 3583(c), (e); Application Note 1 to § 5D1.1 (Imposition of a Term of Supervised Release).

If the court finds that the defendant violated a condition of supervised release, it may continue the defendant on supervised release under existing

conditions, modify the conditions, extend the term, or revoke supervised release and impose a term of imprisonment.

See

18 U.S.C. 3583(e)(3). The court also has authority to terminate a term of supervised release and discharge the defendant at any time after the expiration of one year of supervised release if it is satisfied that such action is warranted by the conduct of the defendant and the interest of justice. 18 U.S.C. 3583(e)(1).

Because supervised release is intended to promote rehabilitation and ease the defendant's transition back into the community, the Commission encourages courts—where possible—to consider a wide array of options to respond to non-compliant behavior and violations of the conditions of supervised release. These interim steps before revocation are intended to allow courts to address the defendant's failure to comply with court-imposed conditions and to better address the needs of the defendant while also maintaining public safety. If revocation is mandated by statute or the court otherwise determines revocation to be appropriate, the sentence imposed upon revocation should be tailored to address the failure to abide by the conditions of the court-ordered supervision; imposition of an appropriate punishment for new criminal conduct is not the primary goal of a revocation sentence. The determination of the appropriate sentence on any new criminal conviction that is also a basis of the violation should be a separate determination for the court having jurisdiction over such conviction.

§ 7C1.1.

Classification of Violations (Policy Statement)

(a) There are four grades of supervised release violations:

(1)

Grade A Violations

—conduct constituting (A) a federal, state, or local offense punishable by a term of imprisonment exceeding one year that (i) is a crime of violence, (ii) is a controlled substance offense, or (iii) involves possession of a firearm or destructive device of a type described in 26 U.S.C. 5845(a); or (B) any other federal, state, or local offense punishable by a term of imprisonment exceeding twenty years;

(2)

Grade B Violations

—conduct constituting any other federal, state, or local offense punishable by a term of imprisonment exceeding one year;

(3)

Grade C Violations

—conduct constituting (A) a federal, state, or local offense punishable by a term of imprisonment of one year or less; or (B) a violation of any other condition of supervised release.

(b) Where there is more than one violation of the conditions of supervised release, or the violation includes conduct that constitutes more than one offense, the grade of the violation is determined by the violation having the most serious grade.

Commentary

Application Notes:

1. Under 18 U.S.C. § 3583(d), a mandatory condition of supervised release is that the defendant not commit another federal, state, or local crime. A violation of this condition may be charged whether or not the defendant has been the subject of a separate federal, state, or local prosecution for such conduct. The grade of violation does not depend upon the conduct that is the subject of criminal charges or of which the defendant is convicted in a criminal proceeding. Rather, the grade of the violation is to be based on the defendant's actual conduct.

2. ‘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.

3. ‘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.

4. A ‘firearm or destructive device of a type described in 26 U.S.C. 5845(a)’ includes a shotgun, or a weapon made from a shotgun, with a barrel or barrels of less than 18 inches in length; a weapon made from a shotgun or rifle with an overall length of less than 26 inches; a rifle, or a weapon made from a rifle, with a barrel or barrels of less than 16 inches in length; a machine gun; a muffler or silencer for a firearm; a destructive device; and certain large bore weapons.

5. Where the defendant is on supervised release in connection with a felony conviction, or has a prior felony conviction, possession of a firearm (other than a firearm of a type described in 26 U.S.C. 5845(a)) will generally constitute a Grade B violation, because 18 U.S.C. 922(g) prohibits a convicted felon from possessing a firearm. The term ‘generally’ is used in the preceding sentence, however, because there are certain limited exceptions to the applicability of 18 U.S.C. 922(g).

See, e.g.,

18 U.S.C. 925(c).

§ 7C1.2.

Reporting of Violations of Supervised Release (Policy Statement)

(a) The probation officer shall promptly report to the court any alleged Grade A or B violation.

(b) The probation officer shall promptly report to the court any alleged Grade C violation unless the officer determines: (1) that such violation is minor, and not part of a continuing pattern of violations; and (2) that non-reporting will not present an undue risk to an individual or the public or be inconsistent with any directive of the court relative to the reporting of violations.

Commentary

Application Note:

1. Under subsection (b), a Grade C violation must be promptly reported to the court unless the probation officer makes an affirmative determination that the alleged violation meets the criteria for non-reporting. For example, an isolated failure to file a monthly report or a minor traffic infraction generally would not require reporting.

§ 7C1.3.

Responses to Violations of Supervised Release (Policy Statement)

(a)

Report of Non-Compliance.

—Upon receiving a report that the defendant is in non-compliance with a condition of supervised release, the court should conduct an individualized assessment to determine what response, if any, is appropriate.

(b)

Finding of a Violation.

—Upon a finding of a violation for which revocation is required by statute (

see

18 U.S.C. 3583(g)), the court shall revoke supervised release. Upon a finding of any other violation, the court should conduct an individualized assessment, taking into consideration the grade of the violation, to determine whether to revoke supervised release. Revocation is generally appropriate for a Grade A violation, often appropriate for a Grade B violation, and may be appropriate for a Grade C violation.

Commentary

Application Notes:

1.

Individualized Assessment.—

When making an individualized assessment under this section, the factors to be considered are the same as the factors considered in determining whether to impose a term of supervised release.

See

18 U.S.C. 3583(c), (e); Application Note 1 to § 5D1.1 (Imposition of a Term of Supervised Release).

2.

Responses.—

Upon a report of non-compliance or a finding of a violation, the court may take any appropriate action provided under 18 U.S.C. § 3583, which includes extension, modification, revocation, or termination of supervised release. If revocation is not statutorily required, the court may also consider an informal response, such as issuing a warning while maintaining supervised release without modification, continuing the violation hearing to

provide the defendant time to come into compliance, or directing the defendant to additional resources needed to come into compliance.

3.

Issuing Summons.—

If the defendant's presence in court is required to address a report of non-compliance, the court should consider issuing a summons rather than an arrest warrant where appropriate.

§ 7C1.4.

Revocation of Supervised Release (Policy Statement)

(a) In the case of a revocation of supervised release, the court shall conduct an individualized assessment to determine the appropriate length of the term of imprisonment, given the recommended range of imprisonment set forth in § 7C1.5 (Term of Imprisonment—Supervised Release (Policy Statement)).

(b) Any term of imprisonment imposed upon the revocation of supervised release generally should be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of supervised release.

(c) If supervised release is revoked, the court may include a requirement that the defendant be placed on a term of supervised release upon release from imprisonment. The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release. 18 U.S.C. 3583(h).

Commentary

Application Notes:

1.

Individualized Assessment.—

When making an individualized assessment under subsection (a), the factors to be considered are the same as the factors considered in determining whether to impose a term of supervised release.

See

18 U.S.C. 3583(c), (e); Application Note 1 to § 5D1.1 (Imposition of a Term of Supervised Release).

2. The provisions for the revocation, as well as early termination and extension, of a term of supervised release are found in 18 U.S.C. 3583(e), (g)-(i). Under 18 U.S.C. 3583(h) (effective September 13, 1994), the court, in the case of revocation of supervised release, may order an additional period of supervised release to follow imprisonment.

3. In the case of a revocation based, at least in part, on a violation of a condition specifically pertaining to community confinement, intermittent confinement, or home detention, use of the same or a less restrictive sanction is not recommended.

4. Any restitution, fine, community confinement, home detention, or intermittent confinement previously imposed in connection with the sentence for which revocation is ordered that remains unpaid or unserved at the time of revocation shall be ordered to be paid or served in addition to the sanction determined under § 7C1.5 (Term of Imprisonment—Supervised Release), and any such unserved period of community confinement, home detention, or intermittent confinement may be converted to an equivalent period of imprisonment.

§ 7C1.5.

Term of Imprisonment—Supervised Release (Policy Statement)

Unless otherwise required by statute, and subject to an individualized assessment, the recommended range of imprisonment applicable upon revocation is set forth in the following table:

Supervised Release Revocation Table (In Months of Imprisonment)

Criminal History Category *

Grade of violation

I

II

III

IV

V

VI

Grade C

3-9

4-10

5-11

6-12

7-13

8-14

Grade B

4-10

6-12

8-14

12-18

18-24

21-27

Grade A

(1)

Except as provided in subdivision (2) below:

12-18

15-21

18-24

24-30

30-37

33-41

(2)

Where the defendant was on supervised release as a result of a sentence for a Class A felony:

24-30

27-33

30-37

37-46

46-57

51-63.

* The criminal history category is the category applicable at the time the defendant originally was sentenced to a term of supervised release.

Commentary

Application Notes:

1. The criminal history category to be used in determining the applicable range of imprisonment in the Supervised Release Revocation Table is the category determined at the time the defendant originally was sentenced to the term of supervision. The criminal history category is not to be recalculated because the ranges set forth in the Supervised Release Revocation Table have been designed to take into account that the defendant violated supervision.

Example:

A defendant, who was originally sentenced in 2022, was determined to have a criminal history category of II due in part to having committed the offense ‘while under any criminal justice sentence.’

See

§ 4A1.1(d) (Criminal History Category) (Nov. 2021). For purposes of determining the applicable range of imprisonment in the Supervised Release Revocation Table, the defendant's criminal history category is category II, regardless of whether the defendant's criminal history category would be reduced for other purposes based on the retroactive application of Part A of Amendment 821 pursuant to § 1B1.10 (Reduction of Imprisonment as a Result of Amended Guideline Range (Policy Statement)).

See

USSG App. C, Amendment 825 (effective November 1, 2023).

In the rare case in which no criminal history category was determined when the defendant originally was sentenced to the term of supervision being revoked, the court shall determine the criminal history category that would have been applicable at the time the defendant originally was sentenced to the term of supervision. (

See

the criminal history provisions of §§ 4A1.1-4B1.4.)

2. Departure from the applicable range of imprisonment in the Supervised Release Revocation Table may be warranted when the court departed from the applicable range for reasons set forth

in § 4A1.3 (Departures Based on Inadequacy of Criminal History Category) in originally imposing the sentence that resulted in supervised release. Additionally, an upward departure may be warranted when a defendant, subsequent to the federal sentence resulting in supervised release, has been sentenced for an offense that is not the basis of the violation proceeding.

3. In the case of a Grade C violation that is associated with a high risk of new felonious conduct (

e.g.,

a defendant, under supervised release for conviction of criminal sexual abuse, violates the condition that the defendant not associate with children by loitering near a schoolyard), an upward departure may be warranted.

4. Where the original sentence was the result of a downward departure (

e.g.,

as a reward for substantial assistance), or a charge reduction that resulted in a sentence below the guideline range applicable to the defendant's underlying conduct, an upward departure may be warranted.

5. Upon a finding that a defendant violated a condition of supervised release by being in possession of a controlled substance or firearm or by refusing to comply with a condition requiring drug testing, the court is required to revoke supervised release and impose a sentence that includes a term of imprisonment. 18 U.S.C. 3583(g).

6. The availability of appropriate substance abuse programs, or a defendant's current or past participation in such programs, may warrant an exception from the requirement of mandatory revocation and imprisonment under 18 U.S.C. 3583(g). 18 U.S.C. 3583(d).

§ 7C1.6.

No Credit for Time Under Supervision (Policy Statement)

(a) Upon revocation of supervised release, no credit shall be given (toward any term of imprisonment ordered) for time previously served on post-release supervision.

See

18 U.S.C. 3583(e)(3).

(b)

Provided,

that in the case of a person serving a period of supervised release on a foreign sentence under the provisions of 18 U.S.C. 4106A, credit shall be given for time on supervision prior to revocation, except that no credit shall be given for any time in escape or absconder status.

Commentary

Application Note:

1. Subsection (b) implements 18 U.S.C. 4106A(b)(1)(C), which provides that the combined periods of imprisonment and supervised release in transfer treaty cases shall not exceed the term of imprisonment imposed by the foreign court.

Background:

This section provides that time served on supervised release is not to be credited in the determination of any term of imprisonment imposed upon revocation. Other aspects of the defendant's conduct, such as compliance with supervision conditions and adjustment while under supervision, appropriately may be considered by the court in the determination of the sentence to be imposed within the applicable revocation range.”.

Reason for Amendment:

This amendment updates the

Guidelines Manual'

s approach to supervised release by revising Part D (Supervised Release) of Chapter Five (Determining the Sentence) and Chapter Seven (Violations of Probation and Supervised Release).

The Sentencing Reform Act of 1984 established “supervised release” as a tool a court could use to impose post-release supervision on a defendant sentenced to a term of imprisonment.

See

18 U.S.C. 3583. The primary goal of supervised release is to “ease the defendant's transition into the community after the service of a long prison term for a particularly serious offense, or to provide rehabilitation to a defendant who has spent a fairly short period in prison . . . but still needs supervision and training programs after release.” S. Rep. No. 225, 98th Cong., 1st Sess. 54 (1983). Supervised release also functions as an important tool to promote public safety.

See

18 U.S.C. 3583(c), 3553(a)(2)(C).

While statutes mandate the imposition and minimum length of supervised release in some cases, courts generally have discretion to determine whether to impose supervised release, to set its length and conditions, modify those conditions, and to extend, revoke, or terminate the term. In making these decisions, the Act requires courts to examine a set of factors similar, but not identical, to those considered when imposing a sentence.

Compare

18 U.S.C. 3553(a)

with

18 U.S.C. 3583(c)-(e).

In November 2024, the Commission held a roundtable on supervised release attended by judges, retired federal probation officers, providers of reentry services, academics, federal probation, government and defense community representatives, and a reentry program graduate. The Commission also received extensive public comment and testimony from members of Congress, the Committee on Criminal Law of the Judicial Conference of the United States, the Department of Justice, the Federal Public and Community Defenders, the Commission's advisory groups, law professors, currently and formerly incarcerated individuals, and other criminal justice system stakeholders.

The amendment makes several overarching changes in response to this feedback and consistent with the statutory purposes and framework. First, it emphasizes the importance of judges making individualized decisions about supervised release at all relevant stages—including imposition, modification or extension, and revocation. Second, it underscores the authority of courts, in consultation with the probation officer, to reassess supervised release decisions after a defendant's release from imprisonment, including decisions about the length and conditions of supervision. Third, it underscores the rehabilitative purposes of supervised release by dividing the provisions addressing violations of probation and violations of supervised release into separate parts of Chapter Seven and providing courts with greater discretion to respond to a violation of a condition of supervised release, including where appropriate, through alternatives to revocation and imprisonment.

The amendment's specific changes to Chapters Five and Seven are discussed further below.

Chapter Five, Part D (Supervised Release)

The amendment revises Chapter Five, Part D of the

Guidelines Manual

to provide courts with greater discretion to impose a term of supervised release that is appropriate for the individual defendant. The amendment adds Introductory Commentary, revises each existing guideline, and adds a new policy statement at § 5D1.4, which addresses extending or terminating supervised release or modifying the conditions thereof.

Introductory Commentary

The amendment adds Introductory Commentary to Part D of Chapter Five emphasizing that supervised release is intended to ease a defendant's transition into the community, provide needed rehabilitation, and promote public safety. It highlights the importance of conducting an individualized assessment to determine whether a defendant needs supervision and how to appropriately tailor the term and conditions, as required by 18 U.S.C. 3583(c).

§ 5D1.1 (Imposition of a Term of Supervised Release)

The amendment revises § 5D1.1 to provide greater judicial discretion in determining whether any term of supervised release is warranted. The amendment removes the requirement to impose supervised release whenever the sentence of imprisonment is more than one year and instead requires supervised release only when mandated by statute. In any other case, “the court should order a term of supervised release when warranted by an individualized assessment of the need for supervision.” Application Note 1 defines the “individualized assessment” by reference to the 18 U.S.C. 3553(a) factors that courts must consider under 18 U.S.C. 3583(c). The Commentary to § 5D1.1 continues to instruct courts to consider the defendant's criminal history, substance abuse history, and history of domestic violence in determining whether to impose a term of supervised release.

These changes respond to widespread concern that supervised release often is ordered reflexively, potentially diverting supervision resources from individuals who most need them. Commission data shows that courts currently impose supervised release in most cases (82.5%). This focus on an individualized assessment aims to “assure that [individuals] who will need post-release supervision will receive it” while “prevent[ing] probation system resources from being wasted on supervisory services for releasees who do not need them,” as Congress intended.

See

S. Rep. No. 225, 98th Cong., 1st Sess. 54 (1983).

The amendment also adds new § 5D1.1(d), which instructs that “the court should state in open court the reasons for imposing or not imposing a term of supervised release,” consistent with 18 U.S.C. 3553(c).

Finally, it adds new Application Note 7, which alerts courts to the fact that the decision whether to impose a term of supervised release could affect subsequent application of First Step Act earned time credits.

§ 5D1.2 (Term of Supervised Release)

The amendment revises § 5D1.2 to provide courts with greater discretion in determining the appropriate length of the term of supervised release. It removes the recommended minimum terms by class of offense from § 5D1.2(a) and instead instructs the court to conduct an individualized assessment to determine the length of the term, which shall be not less than any statutorily required minimum term. It continues to list the maximum terms of supervised release by offense class, noting that some statutes may provide for a different term. Application Note 1 provides that the factors considered for purposes of determining the length of the term are the same as the factors considered in determining whether to impose a term and—consistent with 18 U.S.C. 3583(c) and 3553(a)—instructs that the court should ensure the term “is sufficient, but not greater than necessary, to address the purposes of imposing supervised release on the defendant.”

Similar to the changes made to § 5D1.1, the amendment adds a new instruction to § 5D1.2 that “the court should state in open court the reasons for the length of the term imposed.”

Additionally, the amendment removes the policy statement recommending the statutory maximum term of supervised release for sex offense cases. Although imposition of a statutory maximum term may be warranted in certain cases, the amendment leaves the appropriate term to the court's discretion. As a related change, the amendment deletes a similar maximum-term recommendation in the Commentary to § 4B1.5 (Repeat and Dangerous Sex Offender Against Minors), but it continues to recommend that treatment and monitoring be considered as special conditions of supervised release for individuals sentenced under that guideline.

Finally, in Application Notes 2 and 3, the amendment advises that Congress has authorized higher statutory maximum and/or minimum terms of supervised release for certain terrorism and sex offenses and for some drug offenses.

§ 5D1.3 (Conditions of Supervised Release)

Section 5D1.3 sets forth mandatory and discretionary conditions of supervised release. Discretionary conditions currently are further subdivided into “standard,” “special,” and additional conditions. The amendment restructures and revises the discretionary conditions of supervised release in four ways. First, it adds a general instruction at § 5D1.3(b)(1), which provides that the court “should conduct an individualized assessment to determine what, if any,” discretionary conditions are warranted. Second, in § 5D1.3(b)(2), it removes the instruction that “standard” conditions “are recommended for supervised release” and instead clarifies that they “may be modified, omitted, or expanded in appropriate cases.” Third, in § 5D1.3(b)(3), it removes the recommendation of imposing “special” conditions for listed circumstances and instead provides that “[o]ne or more conditions from the . . . non-exhaustive list of ‘special conditions’ may be appropriate in a particular case, including” the described circumstances. Fourth, it removes the “additional conditions” subheading and incorporates those conditions into the list of “special” conditions in § 5D1.3(b)(3).

These changes emphasize that any standard, special, or other discretionary conditions of supervised release—

i.e.,

those not required by statute—should be imposed only when warranted by an individualized assessment, reflecting the requirements of 18 U.S.C. 3583(d) and feedback that certain conditions are at times imposed by default. The Commission nonetheless recognizes the value of a list of “standard” conditions that establish basic behavioral expectations and facilitate probation officers' supervision. Accordingly, the amendment maintains the list of “standard” conditions without change but notes the court's authority to impose and adjust them as appropriate.

The amendment also adds three “special” conditions in response to commenters' concerns about cases where victims need special protection and cases where defendants could benefit from educational programs. The revised § 5D1.3 lists the following as “special” conditions: (1) a condition prohibiting the defendant from interacting with any victim if the instant conviction is a sex offense; (2) a condition prohibiting the defendant from interacting with any identifiable victim, applicable to all offenses generally; and (3) a condition that the defendant participate in a General Education Development (or similar) program, vocational training, or skills training if the court has reason to believe it would be appropriate and would equip the defendant for suitable employment.

New § 5D1.4 (Modification, Early Termination, and Extension of Supervised Release (Policy Statement))

The Commission sought to address with this amendment potential issues surrounding the fact that the terms and conditions of supervised release are imposed at original sentencing, often years before the defendant begins supervision. People and their circumstances may change in and after prison, such that the original term and conditions may no longer be appropriate after the defendant's release. Courts are encouraged to consider modifying the terms and conditions of supervised

release whenever changed individual circumstances so warrant.

While Commentary to § 5D1.2 previously noted the court's authority to terminate or extend supervised release and encouraged courts to “exercise this authority in appropriate cases,” the amendment adds a new policy statement at § 5D1.4 to more directly address a court's statutory authority to modify conditions or to terminate or extend the term of supervised release.

Subsection (a) (Modification of Conditions) restates the court's authority under 18 U.S.C. 3583(e)(2) to modify, reduce, or enlarge the conditions of supervised release and encourages the court to conduct an individualized assessment, in consultation with the probation officer, to determine whether any change to the conditions is warranted after a defendant's release from imprisonment. The Commission received feedback that while probation officers often meet with defendants approaching and after their release, judicial involvement varies by jurisdiction and individual court practice. The Commission believes that more consistent judicial participation in revisiting the conditions of supervised release will facilitate successful reintegration, increase compliance, and promote public safety, and, therefore, it is encouraged as a best practice.

To encourage appropriate use of early termination, subsection (b) (Early Termination) restates the court's authority under 18 U.S.C. 3583(e)(1) to terminate the remaining term of supervision any time after one year of supervised release if the court determines, following consultation with the government and the probation officer, that termination is warranted by the conduct of the defendant and in the interest of justice. Application Note 1(B) specifies factors a court might consider in determining whether to terminate the remaining term of supervised release, which are modeled in part after the factors in the

Guide to Judiciary Policy,

Vol. 8E, Ch. 3, § 360.20. Considering early termination at appropriate intervals will help ensure that resources are allocated to the individuals most in need of continued supervision and that the term is “sufficient, but not greater than necessary” to fulfill the purposes of imposing supervision.

See

18 U.S.C. 3583(c); 18 U.S.C. 3553(a); USSG § 5D1.2 comment. (n.1) (as revised by this amendment).

Subsection (c) (Extending a Term of Supervised Release) provides that the court may extend the term of supervised release any time before the expiration of a term if less than the maximum term was imposed and extension is warranted by an individualized assessment of the need for further supervision. Application Note 3 notes that extending a term may be more appropriate than revoking a term of supervised release in some cases.

Application Note 2 encourages the court, in coordination with the government, to ensure that any victim is reasonably, accurately, and timely notified, and provided, to the extent practicable, with an opportunity to be reasonably heard, unless any such victim previously requested not to be notified.

Conforming Changes

The amendment also makes conforming changes to § 1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)), § 5B1.3 (Conditions of Probation), § 5H1.3 (Mental and Emotional Conditions (Policy Statement)), and § 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction (Policy Statement)).

Chapter Seven (Violations of Probation and Supervised Release)

The amendment revises Chapter Seven of the

Guidelines Manual

in two main ways to underscore the different purposes of probation and supervised release. First, it divides Chapter Seven into Part B (Violations of Probation) and Part C (Violations of Supervised Release) to reflect that probation serves all the goals of sentencing, including punishment, while supervised release primarily “fulfills rehabilitative ends, distinct from those served by incarceration.”

United States

v.

Johnson,

529 U.S. 53, 59 (2000). Second, it responds to stakeholder feedback on the need for a more flexible, individualized approach to supervised release violations by encouraging courts to consider a graduated response to a defendant's non-compliant behavior.

Chapter Seven—Part A (Introduction to Chapter Seven)

The amendment revises the Introduction to Chapter Seven to explain the Commission's updated approach that treats violations of probation and supervised release differently. To highlight the primarily rehabilitative purposes of supervised release, the new introductory language encourages courts to consider graduated responses to non-compliant behavior before revoking supervised release. The Commission believes that a graduated approach will better allocate resources, promote public safety, and facilitate the reentry and rehabilitation of defendants on supervised release.

Chapter Seven—Part B (Violations of Probation)

The amendment removes references to supervised release from Chapter Seven, Part B and adds an example to the commentary of § 7B1.4 (criminal history calculation) that mirrors an addition to the commentary of new § 7C1.5. The provisions in Chapter Seven, Part B are otherwise unchanged, reflecting the Commission's determination that violations of probation and supervised release should be treated differently.

Chapter Seven—Part C (Violations of Supervised Release), Introductory Commentary

The amendment includes Introductory Commentary to new Part C of Chapter Seven, which explains that in responding to a report of non-compliance, addressing a violation found during revocation proceedings, or imposing a sentence upon revocation, the court should conduct the same kind of individualized assessment used when imposing supervised release. The introduction highlights the Commission's view that courts should consider a wide array of options to address violations of supervised release and that any sentence imposed upon revocation should be tailored to address the failure to abide by supervision conditions, as imposition of an appropriate punishment for new criminal conduct is not the primary goal of a revocation sentence.

New § 7C1.1 (Classification of Violations (Policy Statement)) and § 7C1.2 (Reporting of Violations of Supervised Release (Policy Statement))

The amendment duplicates §§ 7B1.1 and 7B1.2 into new §§ 7C1.1 and 7C1.2 and retains the three existing grades of supervised release violations.

§ 7C1.3 (Responses to Violations of Supervised Release (Policy Statement))

New § 7C1.3 identifies actions a court may take in response to a report of non-compliance with supervised release conditions or a finding of a violation. This new policy statement underscores the importance of using a graduated response to non-compliant behavior.

Subsection (a) instructs the court to conduct an individualized assessment to determine what, if any, response is appropriate to a report of non-compliance. New § 7C1.3(a) reflects feedback that supervision is a dynamic process and often benefits from regular

communication between the defendant, the probation officer, and the court.

Subsection (b) instructs the court to (1) revoke supervised release upon a finding of a violation for which revocation is required by statute, and (2) upon a finding of any other violation, conduct an individualized assessment, taking into consideration the grade of the violation, to determine whether to revoke supervised release for any other violation. New § 7C1.3(b) further provides that revocation is generally appropriate for a Grade A violation, often appropriate for a Grade B violation, and may be appropriate for a Grade C violation. While revocation previously was required for both Grade A or B violations—and Commission data shows similar rates of prison-only revocations for both grades in recent years,

see

U.S. Sent'g Comm., Federal Probation and Supervised Release Violations 35 & Fig.13 (2020)—the amendment provides flexibility to assess the seriousness of the underlying conduct and account for any jurisdictional differences affecting the grade assigned to similar conduct.

For both reports of non-compliance and findings of a violation, Application Note 2 references the court's authority to “take any appropriate action provided under 18 U.S.C. 3583” and lists certain informal responses the court also may consider.

New Application Note 3 encourages the court to consider issuing a summons, rather than an arrest warrant, when appropriate, reflecting concerns that an arrest may result in unnecessary collateral consequences.

§ 7C1.4 (Revocation of Supervised Release (Policy Statement))

The amendment adds new § 7C1.4, which, in subsection (a), instructs the court to conduct an individualized assessment to determine the appropriate length of the term of imprisonment upon revocation, given the recommended ranges set forth in § 7C1.5 (Term of Imprisonment—Supervised Release (Policy Statement)).

Subsection (b) directs that any term of imprisonment “generally should” be ordered to be served consecutively to any sentence of imprisonment that the defendant is currently serving. This language replaces the former instruction that terms of imprisonment upon revocation “shall” be ordered to be served consecutively. This new provision continues to underscore the seriousness of violation conduct while reserving flexibility for courts to run sentences concurrently in extraordinary cases where justified.

Subsection (c) retains the instruction from the prior version of § 7B1.3(g)(2) which, consistent with 18 U.S.C. 3583(h), allows a court to reimpose a term of supervised release upon release from a term of imprisonment imposed upon revocation.

New Application Note 3 adopts and modifies § 7B1.3(c)(3) to state that “[i]n the case of a revocation based, at least in part, on a violation of a condition specifically pertaining to community confinement, intermittent confinement, or home detention, use of the same or a less restrictive sanction

generally

is not recommended” (emphasis added).

New Application Note 4 adopts and modifies § 7B1.3(d) to instruct that sentencing obligations that remain unpaid or unserved at the time of revocation “should” be ordered to be paid or served in addition to any sentence imposed upon revocation.

§ 7C1.5 (Term of Imprisonment—Supervised Release (Policy Statement))

The new § 7C1.5 adopts and modifies § 7B1.4 to set forth the Supervised Release Revocation Table and affirms the importance of conducting an individualized assessment to determine the length of a revocation sentence, in addition to consulting the recommended ranges in the Supervised Release Revocation Table.

The amendment adds an example to Application Note 1 to clarify that a defendant's criminal history category for purposes of determining the applicable range of imprisonment is not recalculated to reflect an amendment made retroactive under § 1B1.10 (Reduction of Imprisonment as a Result of Amended Guideline Range (Policy Statement)). It adds the same example to the commentary to § 7B1.4 (Term of Imprisonment—Probation (Policy Statement)).

§ 7C1.6 (No Credit for Time Under Supervision (Policy Statement))

The amendment adds § 7C1.6, which duplicates § 7B1.5(b) and (c).

5.

Amendment:

Chapter One is amended by striking Part A as follows:

“Part A—Introduction and Authority

Introductory Commentary

Subparts 1 and 2 of this Part provide an introduction to the Guidelines Manual describing the historical development and evolution of the federal sentencing guidelines. Subpart 1 sets forth the original introduction to the Guidelines Manual as it first appeared in 1987, with the inclusion of amendments made occasionally thereto between 1987 and 2000. The original introduction, as so amended, explained a number of policy decisions made by the United States Sentencing Commission (`Commission') when it promulgated the initial set of guidelines and therefore provides a useful reference for contextual and historical purposes. Subpart 2 further describes the evolution of the federal sentencing guidelines after the initial guidelines were promulgated.

Subpart 3 of this Part states the authority of the Commission to promulgate federal sentencing guidelines, policy statements, and commentary.

1. Original Introduction to the Guidelines Manual

The following provisions of this Subpart set forth the original introduction to this manual, effective November 1, 1987, and as amended through November 1, 2000:

1.

Authority

The United States Sentencing Commission (`Commission') is an independent agency in the judicial branch composed of seven voting and two non-voting,

ex officio

members. Its principal purpose is to establish sentencing policies and practices for the federal criminal justice system that will assure the ends of justice by promulgating detailed guidelines prescribing the appropriate sentences for offenders convicted of federal crimes.

The guidelines and policy statements promulgated by the Commission are issued pursuant to Section 994(a) of Title 28, United States Code.

2.

The Statutory Mission

The Sentencing Reform Act of 1984 (Title II of the Comprehensive Crime Control Act of 1984) provides for the development of guidelines that will further the basic purposes of criminal punishment: deterrence, incapacitation, just punishment, and rehabilitation. The Act delegates broad authority to the Commission to review and rationalize the federal sentencing process.

The Act contains detailed instructions as to how this determination should be made, the most important of which directs the Commission to create categories of offense behavior and offender characteristics. An offense behavior category might consist, for example, of `bank robbery/committed with a gun/$2500 taken.' An offender characteristic category might be `offender with one prior conviction not resulting in imprisonment.' The Commission is required to prescribe guideline ranges that specify an appropriate sentence for each class of convicted persons determined by

coordinating the offense behavior categories with the offender characteristic categories. Where the guidelines call for imprisonment, the range must be narrow: the maximum of the range cannot exceed the minimum by more than the greater of 25 percent or six months. 28 U.S.C. 994(b)(2).

Pursuant to the Act, the sentencing court must select a sentence from within the guideline range. If, however, a particular case presents atypical features, the Act allows the court to depart from the guidelines and sentence outside the prescribed range. In that case, the court must specify reasons for departure. 18 U.S.C. 3553(b). If the court sentences within the guideline range, an appellate court may review the sentence to determine whether the guidelines were correctly applied. If the court departs from the guideline range, an appellate court may review the reasonableness of the departure. 18 U.S.C. 3742. The Act also abolishes parole, and substantially reduces and restructures good behavior adjustments.

The Commission's initial guidelines were submitted to Congress on April 13, 1987. After the prescribed period of Congressional review, the guidelines took effect on November 1, 1987, and apply to all offenses committed on or after that date. The Commission has the authority to submit guideline amendments each year to Congress between the beginning of a regular Congressional session and May 1. Such amendments automatically take effect 180 days after submission unless a law is enacted to the contrary. 28 U.S.C. 994(p).

The initial sentencing guidelines and policy statements were developed after extensive hearings, deliberation, and consideration of substantial public comment. The Commission emphasizes, however, that it views the guideline-writing process as evolutionary. It expects, and the governing statute anticipates, that continuing research, experience, and analysis will result in modifications and revisions to the guidelines through submission of amendments to Congress. To this end, the Commission is established as a permanent agency to monitor sentencing practices in the federal courts.

3.

The Basic Approach (Policy Statement)

To understand the guidelines and their underlying rationale, it is important to focus on the three objectives that Congress sought to achieve in enacting the Sentencing Reform Act of 1984. The Act's basic objective was to enhance the ability of the criminal justice system to combat crime through an effective, fair sentencing system. To achieve this end, Congress first sought honesty in sentencing. It sought to avoid the confusion and implicit deception that arose out of the pre-guidelines sentencing system which required the court to impose an indeterminate sentence of imprisonment and empowered the parole commission to determine how much of the sentence an offender actually would serve in prison. This practice usually resulted in a substantial reduction in the effective length of the sentence imposed, with defendants often serving only about one-third of the sentence imposed by the court.

Second, Congress sought reasonable uniformity in sentencing by narrowing the wide disparity in sentences imposed for similar criminal offenses committed by similar offenders. Third, Congress sought proportionality in sentencing through a system that imposes appropriately different sentences for criminal conduct of differing severity.

Honesty is easy to achieve: the abolition of parole makes the sentence imposed by the court the sentence the offender will serve, less approximately fifteen percent for good behavior. There is a tension, however, between the mandate of uniformity and the mandate of proportionality. Simple uniformity—sentencing every offender to five years—destroys proportionality. Having only a few simple categories of crimes would make the guidelines uniform and easy to administer, but might lump together offenses that are different in important respects. For example, a single category for robbery that included armed and unarmed robberies, robberies with and without injuries, robberies of a few dollars and robberies of millions, would be far too broad.

A sentencing system tailored to fit every conceivable wrinkle of each case would quickly become unworkable and seriously compromise the certainty of punishment and its deterrent effect. For example: a bank robber with (or without) a gun, which the robber kept hidden (or brandished), might have frightened (or merely warned), injured seriously (or less seriously), tied up (or simply pushed) a guard, teller, or customer, at night (or at noon), in an effort to obtain money for other crimes (or for other purposes), in the company of a few (or many) other robbers, for the first (or fourth) time.

The list of potentially relevant features of criminal behavior is long; the fact that they can occur in multiple combinations means that the list of possible permutations of factors is virtually endless. The appropriate relationships among these different factors are exceedingly difficult to establish, for they are often context specific. Sentencing courts do not treat the occurrence of a simple bruise identically in all cases, irrespective of whether that bruise occurred in the context of a bank robbery or in the context of a breach of peace. This is so, in part, because the risk that such a harm will occur differs depending on the underlying offense with which it is connected; and also because, in part, the relationship between punishment and multiple harms is not simply additive. The relation varies depending on how much other harm has occurred. Thus, it would not be proper to assign points for each kind of harm and simply add them up, irrespective of context and total amounts.

The larger the number of subcategories of offense and offender characteristics included in the guidelines, the greater the complexity and the less workable the system. Moreover, complex combinations of offense and offender characteristics would apply and interact in unforeseen ways to unforeseen situations, thus failing to cure the unfairness of a simple, broad category system. Finally, and perhaps most importantly, probation officers and courts, in applying a complex system having numerous subcategories, would be required to make a host of decisions regarding whether the underlying facts were sufficient to bring the case within a particular subcategory. The greater the number of decisions required and the greater their complexity, the greater the risk that different courts would apply the guidelines differently to situations that, in fact, are similar, thereby reintroducing the very disparity that the guidelines were designed to reduce.

In view of the arguments, it would have been tempting to retreat to the simple, broad category approach and to grant courts the discretion to select the proper point along a broad sentencing range. Granting such broad discretion, however, would have risked correspondingly broad disparity in sentencing, for different courts may exercise their discretionary powers in different ways. Such an approach would have risked a return to the wide disparity that Congress established the Commission to reduce and would have been contrary to the Commission's mandate set forth in the Sentencing Reform Act of 1984.

In the end, there was no completely satisfying solution to this problem. The Commission had to balance the comparative virtues and vices of broad, simple categorization and detailed,

complex subcategorization, and within the constraints established by that balance, minimize the discretionary powers of the sentencing court. Any system will, to a degree, enjoy the benefits and suffer from the drawbacks of each approach.

A philosophical problem arose when the Commission attempted to reconcile the differing perceptions of the purposes of criminal punishment. Most observers of the criminal law agree that the ultimate aim of the law itself, and of punishment in particular, is the control of crime. Beyond this point, however, the consensus seems to break down. Some argue that appropriate punishment should be defined primarily on the basis of the principle of `just deserts.' Under this principle, punishment should be scaled to the offender's culpability and the resulting harms. Others argue that punishment should be imposed primarily on the basis of practical `crime control' considerations. This theory calls for sentences that most effectively lessen the likelihood of future crime, either by deterring others or incapacitating the defendant.

Adherents of each of these points of view urged the Commission to choose between them and accord one primacy over the other. As a practical matter, however, this choice was unnecessary because in most sentencing decisions the application of either philosophy will produce the same or similar results.

In its initial set of guidelines, the Commission sought to solve both the practical and philosophical problems of developing a coherent sentencing system by taking an empirical approach that used as a starting point data estimating pre-guidelines sentencing practice. It analyzed data drawn from 10,000 presentence investigations, the differing elements of various crimes as distinguished in substantive criminal statutes, the United States Parole Commission's guidelines and statistics, and data from other relevant sources in order to determine which distinctions were important in pre-guidelines practice. After consideration, the Commission accepted, modified, or rationalized these distinctions.

This empirical approach helped the Commission res

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