Amendments to the Sentencing Guidelines for United States Courts

SUMMARY: Pursuant to its authority under section 994(p) of title 28,

United States Code, the Commission on April 28, 1994, submitted to the

Congress amendments to the sentencing guidelines, policy statements,

and official commentary together with reasons for the amendments.

DATES: Pursuant to 28 U.S.C. 994(p), as amended by section 7109 of the

Anti-Drug Abuse Act of 1988 (Pub. L. 100-690, Nov. 18, 1988), the

Commission has specified an effective date of November 1, 1994, for

these amendments. Comments regarding amendments that the Commission

should specify for retroactive application to previously sentenced

defendants should be received no later than June 30, 1994.

ADDRESSES: Comments should be sent to: United States Sentencing

Commission, One Columbus Circle, N.E., Suite 2-500, South Lobby,

Washington, DC 20002-8002, Attn: Public Information.

FOR FURTHER INFORMATION CONTACT: Mike Courlander, Public Information

Specialist, telephone: (202) 273-4590.

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission, an

independent agency in the judicial branch of the U.S. Government, is

empowered by 28 U.S.C. 994(a) to promulgate sentencing guidelines and

policy statements for federal sentencing courts. The statute further

directs the Commission to review periodically and revise guidelines

previously promulgated and authorizes it to submit guideline amendments

to the Congress no later than the first day of May each year. See 28

U.S.C. 994(o), (p). Absent action of Congress to the contrary, the

amendments become effective on the date specified by the Commission

(i.e., November 1, 1994) by operation of law.

Notice of the amendments submitted to the Congress on April 28,

1994, was published in the Federal Register of December 21, 1993 (58 FR

67521). A public hearing on the proposed amendments was held in

Washington, DC, on March 24, 1994. After review of the hearing

testimony and additional public comment, the Commission promulgated the

amendments, each having been approved by at least four voting

Commissioners.

In connection with its ongoing process of guideline review, the

Commission welcomes comment on any aspect of the sentencing guidelines,

policy statements, and official commentary. Specifically, the

Commission solicits comment on which, if any, of the amendments

submitted to the Congress that may result in a lower guideline range

should be made retroactive to previously sentenced defendants under

Policy Statement 1B1.10.

Authority: 28 U.S.C. 994(a), (o), (p); sec. 7109 of the Anti-

Drug Abuse Act of 1988 (Pub. L. 100-690).

William W. Wilkins, Jr.,

Chairman.

Amendments to the Sentencing Guidelines

Pursuant to section 994(p) of title 28, United States Code, as

amended by section 7109 of the Anti-Drug Abuse Act of 1988 [Pub. L.

100-690, Nov. 18, 1988, the United States Sentencing Commission reports

to the Congress the following amendments to the sentencing guidelines,

and the reasons therefor. As authorized by this section, the Commission

specifies an effective date of November 1, 1994, for these amendments.

Policy Statements, and Official Commentary

1. Amendment: The Commentary to Sec. 1B1.3 captioned ``Application

Notes'' is amended in Note 2 by inserting the following additional

paragraph as the eighth paragraph:

``A defendant's relevant conduct does not include the conduct of

members of a conspiracy prior to the defendant's joining the

conspiracy, even if the defendant knows of that conduct (e.g., in the

case of a defendant who joins an ongoing drug distribution conspiracy

knowing that it had been selling two kilograms of cocaine per week, the

cocaine sold prior to the defendant's joining the conspiracy is not

included as relevant conduct in determining the defendant's offense

level). The Commission does not foreclose the possibility that there

may be some unusual set of circumstances in which the exclusion of such

conduct may not adequately reflect the defendant's culpability; in such

a case, an upward departure may be warranted.''.

The Commentary to Sec. 1B1.3 captioned ``Application Notes'' is

amended in Note 9(B) by deleting ``and the time interval between

offenses'' and inserting in lieu thereof:

``, the regularity (repetitions) of the offenses, and the time interval

between the offenses. When one of the above factors is absent, a

stronger presence of at least one of the other factors is required. For

example, where the conduct alleged to be relevant is relatively remote

to the offense of conviction, a stronger showing of similarity or

regularity is necessary to compensate for the absence of temporal

proximity.''.

Reason for Amendment: This amendment clarifies the operation of

Sec. 1B1.3 (Relevant Conduct) with respect to the defendant's

accountability for the actions of other conspirators prior to the

defendant's joining the conspiracy. The amendment is in accord with the

rule stated in recent caselaw. See, e.g., United States v. Carreon, 11

F.3d 1225 (5th Cir. 1994); United States v. Petty, 982 F.2d 1374, 1377

(9th Cir. 1993); United States v. O'Campo, 973 F.2d 1015, 1026 (1st

Cir. 1992). Cf. United States v. Miranda-Ortiz, 926 F.2d 172, 178 (2d

Cir. 1991); United States v. Edwards, 945 F.2d 1387, 1393 (7th Cir.

1991)) (applying earlier versions of Sec. 1B1.3). By expressly

addressing this issue, this amendment will ensure consistency in

guideline interpretation. In addition, this amendment adds a well-

phrased formulation developed by the Ninth Circuit in United States v.

Hahn, 960 F.2d 903 (9th Cir. 1992), to the commentary addressing the

circumstances in which multiple acts constitute the ``same course of

conduct.''.

2. Amendment: Section 1B1.10(a) is amended by deleting

``guidelines'' and inserting in lieu thereof ``Guidelines Manual'', by

deleting ``may be considered'' and inserting in lieu thereof ``is

authorized'', by inserting ``and thus is not authorized'' immediately

following ``policy statement'', and by deleting ``subsection (d)''

wherever it appears and inserting in lieu thereof in each instance

``subsection (c)''.

Section 1B1.10(b) is amended by inserting ``, and to what extent,''

immediately before ``a reduction'', and by deleting ``originally

imposed had the guidelines, as amended, been in effect at that time''

and inserting in lieu thereof ``imposed had the amendment(s) to the

guidelines listed in subsection (c) been in effect at the time the

defendant was sentenced''.

Section 1B1.10 is amended by deleting subsection (c), and by

redesignating subsection (d) as subsection (c).

'The Commentary to Sec. 1B1.10 captioned ``Application Note'' is

amended by deleting ``Note'' and inserting in lieu thereof ``Notes'',

and by deleting Note 1 and inserting in lieu thereof:

``1. Eligibility for consideration under 18 U.S.C. 3582(c)(2) is

triggered only by an amendment listed in subsection (c) that lowers the

applicable guideline range.

2. In determining the amended guideline range under subsection (b),

the court shall substitute only the amendments listed in subsection (c)

for the corresponding guideline provisions that were applied when the

defendant was sentenced. All other guideline application decisions

remain unaffected.''.

The Commentary to Sec. 1B1.10 captioned ``Background'' is amended

in the last paragraph by deleting ``subsection (d)'' and inserting in

lieu thereof ``subsection (c)''.

Reason for Amendment: This amendment revises Sec. 1B1.10 to

substantially simplify its operation. Under this amendment, the court

will recalculate the guideline range using only those amendments

expressly designated as retroactive. In addition, this amendment

deletes current Sec. 1B1.10(c), a rather complex subsection, as an

unnecessary restriction on the court's consideration of a revised

sentence in response to an amended guideline range. Finally, this

amendment makes a number of minor clarifying revisions.

3. Amendment: Section 2D1.1(c) is amended by deleting subdivisions

1-3, by renumbering subdivisions 4-19 as 2-17, and by inserting the

following as subdivision 1:

``(1) 30 KG or more of Heroin (or the equivalent Level 38 amount of

other Schedule I or II Opiates);

150 KG or more of Cocaine (or the equivalent amount of other Schedule I

or II Stimulants);

1.5 KG or more of Cocaine Base;

30 KG or more of PCP, or 3 KG or more of PCP (actual);

30 KG or more of Methamphetamine, or 3 KG or more of Methamphetamine

(actual), or 3 KG or more of `Ice';

300 G or more of LSD (or the equivalent amount of other Schedule I or

II Hallucinogens);

12 KG or more of Fentanyl;

3 KG or more of a Fentanyl Analogue;

30,000 KG or more of Marihuana;

6,000 KG or more of Hashish;

600 KG or more of Hashish Oil.''.

The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is

amended in Note 16 by deleting ``40'' and inserting in lieu thereof

``38'', by deleting ``35'' wherever it appears and inserting in lieu

thereof in each instance ``33'', and by deleting ``4 levels'' and

inserting in lieu thereof ``2 levels''.

The Commentary to Sec. 2D1.6 captioned ``Application Note'' is

amended in Note 1 by deleting ``(Sec. 2D1.1(c)(16))'' and inserting in

lieu thereof ``(Sec. 2D1.1(c)(14))'', and by deleting

``(Sec. 2D1.1(c)(19))'' and inserting in lieu thereof

``(Sec. 2D1.1(c)(17))''.

Reason for Amendment: This amendment sets the upper limit of the

Drug Quantity Table in Sec. 2D1.1 at level 38. The Commission has

determined that the extension of the Drug Quantity Table above level 38

for quantity itself is not required to ensure adequate punishment given

that organizers, leaders, managers, and supervisors of such offenses

will receive a 4-, 3-, or 2-level enhancement for their role in the

offense, and any participant will receive an additional 2-level

enhancement if a dangerous weapon is possessed in the offense.

4. Amendment: The Commentary to Sec. 4B1.1 captioned ``Application

Notes'' is amended in Note 2 by deleting the first sentence and

inserting in lieu thereof:

```Offense Statutory Maximum,' for the purposes of this guideline,

refers to the maximum term of imprisonment authorized for the offense

of conviction that is a crime of violence or controlled substance

offense, not including any increase in that maximum term under a

sentencing enhancement provision that applies because of the

defendant's prior criminal record (such sentencing enhancement

provisions are contained, for example, in 21 U.S.C. 841(b)(1)(A),

(b)(1)(B), (b)(1)(C), and (b)(1)(D)). For example, where the statutory

maximum term of imprisonment under 21 U.S.C. Sec. 841(b)(1)(C) is

increased from twenty years to thirty years because the defendant has

one or more qualifying prior drug convictions, the `Offense Statutory

Maximum' for the purposes of this guideline is twenty years and not

thirty years.''.

Reason for Amendment: This amendment defines the term ``offense

statutory maximum'' in Sec. 4B1.1 to mean the statutory maximum prior

to any enhancement based on prior criminal record (i.e., an enhancement

of the statutory maximum sentence that itself was based upon the

defendant's prior criminal record would not be used in determining the

offense level under this guideline). This rule avoids unwarranted

double counting as well as unwarranted disparity associated with

variations in the exercise of prosecutional discretion in seeking

enhanced penalties based on prior convictions.

It is noted that when the instruction to the Commission that

underlies Sec. 4B1.1 (28 U.S.C. 994(h)) was enacted by the Congress in

1984, the enhanced maximum sentences provided for recidivist drug

offenders (e.g., under 21 U.S.C. 841) did not exist.

5. Amendment: The Commentary to Sec. 5G1.2 is amended in the fourth

paragraph by deleting ``3D1.2'' and inserting in lieu thereof

``3D1.1'', and by inserting the following additional sentence at the

end:

``Note, however, that even in the case of a consecutive term of

imprisonment imposed under subsection (a), any term of supervised

release imposed is to run concurrently with any other term of

supervised release imposed. See 18 U.S.C. 3624(e).''.

Reason for Amendment: This amendment revises the Commentary to

Sec. 5G1.2 to clarify that the Commission's interpretation is that 18

U.S.C. 3624(e) requires multiple terms of supervised release to run

concurrently in all cases. This interpretation is in accord with the

view stated in United States v. Gullickson, 982 F.2d 1231, 1236 (8th

Cir. 1993). In contrast, two courts of appeals have cited the current

commentary as supporting the view that, notwithstanding the language in

18 U.S.C. 3624(e) stating that terms of supervised release run

concurrently, a court may order that supervised release terms run

consecutively under certain circumstances. See United States v.

Shorthouse, 7 F.3d 149 (9th Cir. 1993); United States v. Maxwell, 966

F.2d 545, 551 (10th Cir. 1992).

6. Amendment: The Introductory Commentary to Chapter Five, Part H,

is amended in the second paragraph by inserting the following

additional sentence at the end:

``Furthermore, although these factors are not ordinarily relevant

to the determination of whether a sentence should be outside the

applicable guideline range, they may be relevant to this determination

in exceptional cases. See Sec. 5K2.0 (Grounds for Departure).''.

Section 5K2.0 is amended by inserting the following additional

paragraph as the fourth paragraph:

``An offender characteristic or other circumstance that is not

ordinarily relevant in determining whether a sentence should be outside

the applicable guideline range may be relevant to this determination if

such characteristic or circumstance is present to an unusual degree and

distinguishes the case from the `heartland' cases covered by the

guidelines in a way that is important to the statutory purposes of

sentencing.''.

Section 5K2.0 is amended by inserting the following commentary at

the end:

Commentary

The last paragraph of this policy statement sets forth the

conditions under which an offender characteristic or other circumstance

that is not ordinarily relevant to a departure from the applicable

guideline range may be relevant to this determination. The Commission

does not foreclose the possibility of an extraordinary case that,

because of a combination of such characteristics or circumstances,

differs significantly from the `heartland' cases covered by the

guidelines in a way that is important to the statutory purposes of

sentencing, even though none of the characteristics or circumstances

individually distinguishes the case. However, the Commission believes

that such cases will be extremely rare.

In the absence of a characteristic or circumstance that

distinguishes a case as sufficiently atypical to warrant a sentence

different from that called for under the guidelines, a sentence outside

the guideline range is not authorized. See 18 U.S.C. 3553(b). For

example, dissatisfaction with the available sentencing range or a

preference for a different sentence than that authorized by the

guidelines is not an appropriate basis for a sentence outside the

applicable guideline range.''.

Reason for Amendment: This amendment provides guidance as to when

an offender characteristic or other circumstance (or combination of

such characteristics or circumstances) that is not ordinarily relevant

to a determination of whether a sentence should be outside the

applicable guideline range may be relevant to this determination. Such

guidance should enhance consistency in decisions regarding guideline

departures.

[FR Doc. 94-10782 Filed 5-4-94; 8:45 am]

BILLING CODE BAC2210-40-P