Revisions to the Sentencing Guidelines for the United States Courts

UNITED STATES SENTENCING COMMISSION

Revisions to the Sentencing Guidelines for the United States

Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of (1) promulgation of a temporary, emergency sentencing

guideline amendment limiting the applicability of statutory minimum

sentences in certain cases; and (2) final action regarding

retroactivity of amendments.

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SUMMARY: The Sentencing Commission hereby gives notice of the following

actions: (1) Pursuant to its authority under section 80001(b) of the

Violent Crime Control and Law Enforcement Act of 1994, section 21(a) of

the Sentencing Act of 1987, and section 217(a) of the Comprehensive

Crime Control Act of 1984 (28 U.S.C. 994 (a) and (p)), the Commission

has promulgated a new guideline, Sec. 5C1.2 (Limitation on Application

of Statutory Minimum Sentences in Certain Cases), with accompanying

commentary, to assist federal courts in applying section 3553(f) of

title 18 (a statutory provision enacted by section 80001 of the Violent

Crime Control and Law Enforcement Act of 1994) and has made conforming

amendments to the commentary of Secs. 2D1.1 and 2D2.1; and (2) pursuant

to its authority under section 217(a) of the Comprehensive Crime

Control Act of 1984 (28 U.S.C. 994 (a) and (u)), the Commission has

reviewed amendments previously submitted to Congress that may result in

a lower guideline range and has designated two such amendments for

inclusion in policy statement Sec. 1B1.10 (Retroactivity of Amended

Guideline Range).

DATES: The Commission has specified an effective date of September 23,

1994, for the amendment creating Sec. 5C1.2 and the conforming

commentary amendments to Secs. 2D1.1 and 2D2.1. It has specified an

effective date of November 1, 1994, for the amendment to Sec. 1B1.10.

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Information

Specialist, telephone (202)273-4590.

SUPPLEMENTARY INFORMATION: General Guideline Amendment Authority--The

United States Sentencing Commission is an independent agency in the

judicial branch of the U.S. Government. The Commission is empowered by

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

statements for federal sentencing courts. Sections 994 (o) and (p) of

title 28, United States Code, further direct the Commission to review

and revise periodically guidelines and policy statements previously

promulgated, and require that guideline amendments be submitted to

Congress for review. Absent action of the Congress to the contrary,

guideline amendments become effective following 180 days of

Congressional review on the date specified by the Commission. Pursuant

to this general amendment authority, on April 28, 1994, the Commission

submitted to Congress for review six amendments to the sentencing

guidelines, policy statements, and commentary. Unless Congress

legislates to the contrary, these amendments will take effect November

1, 1994. See 59 F.R. 23608.

Retroactivity--Pursuant to its authority under 28 U.S.C. 994(u),

the Commission has reviewed the aforementioned amendments to determine

which, if any, of the amendments that may result in a lower guideline

range for an affected class of defendants should be made retroactive

with respect to previously sentenced defendants. The Commission has

determined that one such amendment, designated as amendment 506

(pertaining to the definition of ``offense statutory maximum'' for

purposes of determining the offense level under Sec. 4B1.1, the career

offender guideline), and one previously promulgated amendment,

designated as amendment 371 (creating additional guidelines

Secs. 2D1.11, 2D1.12, and 2D1.13 with conforming commentary pertaining

to violations involving listed chemicals, flasks, and certain machines

used in the manufacture of controlled substances), should be made

retroactive. This action is accomplished by amending Policy Statement

Sec. 1B1.10, effective November 1, 1994, to list these two amendments

as eligible for retroactive application by courts when considering a

motion to modify an imposed term of imprisonment pursuant to 18 U.S.C.

3582(c)(2).

Emergency Amendment Action--Section 80001(b)(2) of the Violent

Crime Control and Law Enforcement Act of 1994 reestablished, for a

limited purpose, the Commission's authority under section 21(a) of the

Sentencing Act of 1987 to promulgate temporary, emergency guidelines or

amend existing guidelines. Unlike amendments issued pursuant to 28

U.S.C. 994(p), temporary amendments promulgated by the Commission are

not required to be submitted to Congress for review prior to their

taking effect; nor is the Commission required to publish proposed

temporary, emergency guideline amendments prior to promulgation, though

it may do so if circumstances permit. Emergency amendments are

temporary (i.e., unless submitted to Congress as regular amendments in

the next regular amendment report, they expire upon the disposition of

that report).

Pursuant to this limited-purpose authorization of emergency

amendment authority, the Commission has implemented the instruction in

section 80001(b)(1) of the Violent Crime Control and Law Enforcement

Act of 1994 by promulgating a new guideline designated as Sec. 5C1.2

(Limitation on Applicability of Statutory Minimum Sentences in Certain

Cases) with accompanying commentary. Conforming commentary amendments

to Secs. 2D1.1 and 2D2.1 have also been made.

In carrying out this Congressional directive, the Commission was

required to construe and implement the specific language of section

80001(b)(1)(B). That provision instructs the Commission to provide that

a defendant with a five-year mandatory minimum sentence who meets the

criteria for an exemption from such mandatory minimum sentence will

receive a guideline range that has a minimum of at least 24 months of

imprisonment. (Note that this instruction to the Commission does not

prohibit a court from granting a downward departure from this guideline

if the court finds sufficient mitigating circumstances.) In general,

under the guidelines currently in effect, the guideline range for the

least culpable category of affected defendant will be at least 30-37

months. (A Chapter Two offense level of at least 26, minus 4 levels for

a minimal role and 3 levels for acceptance of responsibility, results

in a minimum offense level of 19. For Criminal History Category I, the

applicable guideline range is 30-37 months.) The Commission is aware

that there may be rare exceptions in which such a defendant may receive

an offense level that results in a guideline range with a minimum of

less than 24 months. For example, if the defendant's offense involves

LSD on a carrier medium, the court will apply the Commission's

provision that each LSD dose is to be treated as equivalent to 0.4

milligram per dose for guideline calculations. If the court uses the

entire weight of the carrier medium for the purposes of determining the

applicability of the mandatory minimum sentence and the defendant

nevertheless qualifies under 18 U.S.C. 3553(f) and Sec. 5C1.2 of the

sentencing guidelines for an exemption from such mandatory minimum, the

situation could arise in which the defendant is subject to a guideline

range with a minimum of less than 24 months.

The Commission believes that it has the authority to authorize such

minor variations from the literal language of the Congressional

instruction to ensure consistency with the guidelines as a whole. In

the Conference Report accompanying this legislation, the Congress

expressly noted that the Commission should interpret Congressional

instructions to the Commission in a manner that ``shall assure

reasonable consistency with other guidelines'' and ``take into account

any mitigating circumstances which might justify exceptions.'' H.R.

Conf. Rep. No. 711, 103d Cong., 2d Sess. 388 (title IX) (1994); see

also id., sec. 280003 at 312 (directing Commission to carry out a

specific instruction regarding sentencing enhancements for hate crimes

in a manner to ensure reasonable consistency with other guidelines).

The Commission similarly believes its interpretation of section

80001(b)(1)(B), within the overall context of a clearly ameliorative

sentencing provision for qualified defendants, is consistent with past

Congressional directives to the Commission and Congress's rationale for

employing such directives as a more flexible means of effecting

sentencing policy in particular situations. For example, under 28

U.S.C. 994(h), Congress directed the Commission to create specific

provisions within the guidelines for sentencing certain repeat

offenders. The Commission implemented this directive through

Secs. 4B1.1 and 4B1.2. Legislative history accompanying this directive

indicates that a principal Congressional consideration in choosing to

employ an instruction to the Commission in lieu of a legislated

mandatory minimum (the approach taken in an earlier version of the

legislation) was to afford the Commission a measure of flexibility to

interpret and implement the instruction in a way that best harmonizes

career offender sentencing policy with the guidelines as a whole,

thereby avoiding anomalous results. See S. Rep. No. 225, 98th Cong. 1st

Sess. 175 (1983). So, too, in this case, the Commission has sought to

implement the Congressional instruction in section 80001(b)(1)(B) in a

manner that best ``assure[s] reasonable consistency with other

guidelines * * * and take[s] into account * * * mitigating

circumstances which might justify exceptions.'' H.R. Conf. Rep. No.

711, supra.

Continuing Guidelines Review--In connection with its ongoing review

of the Guidelines Manual, the Commission continues to welcome comment

on any aspect of the sentencing guidelines, policy statements, and

official commentary. Comments should be sent to: The United States

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

Lobby, Washington, D.C. 20002-8002, Attn: Office of Communications.

Authority: Section 217(a) of the Comprehensive Crime Control Act

of 1984 (28 U.S.C. 994(a)).

William W. Wilkins, Jr.

Chairman.

Additional Guideline, Amendments to Commentary and Policy Statement

1. Amendment: Chapter Five, Part C, is amended by inserting the

following additional guideline with accompanying commentary:

``Sec. 5C1.2. Limitation on Applicability of Statutory Minimum

Sentences in Certain Cases

In the case of an offense under 21 U.S.C. 841, 844, 846, 960, or

963, the court shall impose a sentence in accordance with the

applicable guidelines without regard to any statutory minimum

sentence, if the court finds that the defendant meets the criteria

in 18 U.S.C. 3553(f)(1)-(5) set forth verbatim below:

(1) The defendant does not have more than 1 criminal history

point, as determined under the sentencing guidelines;

(2) The defendant did not use violence or credible threats of

violence or possess a firearm or other dangerous weapon (or induce

another participant to do so) in connection with the offense;

(3) The offense did not result in death or serious bodily injury

to any person;

(4) The defendant was not an organizer, leader, manager, or

supervisor of others in the offense, as determined under the

sentencing guidelines and was not engaged in a continuing criminal

enterprise, as defined in 21 U.S.C. 848; and

(5) Not later than the time of the sentencing hearing, the

defendant has truthfully provided to the Government all information

and evidence the defendant has concerning the offense or offenses

that were part of the same course of conduct or of a common scheme

or plan, but the fact that the defendant has no relevant or useful

other information to provide or that the Government is already aware

of the information shall not preclude a determination by the court

that the defendant has complied with this requirement.

Commentary

Application Notes

1. `More than 1 criminal history point, as determined under the

sentencing guidelines,' as used in subdivision (1), means more than one

criminal history point as determined under Sec. 4A1.1 (Criminal History

Category).

2. `Dangerous weapon' and `firearm,' as used in subdivision (2),

and `serious bodily injury,' as used in subdivision (3), are defined in

the Commentary to Sec. 1B1.1 (Application Instructions).

3. `Offense,' as used in subdivisions (2-(4), and `offense or

offenses that were part of the same course of conduct or of a common

scheme or plan,' as used in subdivision (5), mean the offense of

conviction and all relevant conduct.

4. Consistent with Sec. 1B1.3 (Relevant Conduct), the term

`defendant,' as used in subdivision (2), limits the accountability of

the defendant to his own conduct and conduct that he aided or abetted,

counseled, commanded, induced, procured, or willfully caused.

5. `Organizer, leader, manager, or supervisor of others in the

offense, as determined under the sentencing guidelines,' as used in

subdivision (4), means a defendant who receives an adjustment for an

aggravating role under Sec. 3B1.1 (Aggravating Role).

6. `Engaged in a continuing criminal enterprise,' as used in

subdivision (4), is defined in 21 U.S.C. 848(c). As a practical matter,

it should not be necessary to apply this prong of subdivision (4)

because (i) this section does not apply to a conviction under 21 U.S.C.

848, and (ii) any defendant who `engaged in a continuing criminal

enterprise' but is convicted of an offense to which this section

applies will be a `leader, organizer, manager, or supervisor of others

in the offense.'

7. Information disclosed by the defendant with respect to

subdivision (5) may be considered in determining the applicable

guideline range, except where the use of such information is restricted

under the provisions of Sec. 1B1.8 (Use of Certain Information). That

is, subdivision (5) does not provide an independent basis for

restricting the use of information disclosed by the defendant.

8. Under 18 U.S.C. 3553(f), prior to its determination, the court

shall afford the government an opportunity to make a recommendation.

See also Rule 32(a)(1), Fed. R. Crim. P.

Background

This section sets forth the relevant provisions of 18 U.S.C.

3553(f), as added by section 80001(a) of the Violent Crime Control and

Law Enforcement Act of 1994, which limit the applicability of statutory

minimum sentences in certain cases. Under the authority of section

80001(b) of that Act, the Commission has promulgated application notes

to provide guidance in the application of 18 U.S.C. 3553(f). See also

H. Rep. No. 103-460, 103d Cong., 2d Sess. 3 (1994) (expressing intent

to foster greater coordination between mandatory minimum sentencing and

the sentencing guideline system).''.

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

amended in Note 7 by inserting the following additional sentences at

the end:

In addition, 18 U.S.C. 3553(f) provides an exception to the

applicability of mandatory minimum sentences in certain cases. See

Sec. 5C1.2 (Limitation of Applicability of Statutory Minimum

Penalties in Certain Cases).

.The Commentary to Sec. 2D2.1 captioned ``Background'' is amended

in the first paragraph by inserting ``(statutory)'' immediately

following ``Mandatory''; and by deleting ``Sec. 5G1.1(b)'' and

inserting in lieu thereof:

See Sec. 5G1.1(b). Note, however, that 18 U.S.C. 3553(f)

provides an exception to the applicability of mandatory minimum

sentences in certain cases. See Sec. 5C1.2 (Limitation on

Applicability of Statutory Minimum Sentences in Certain Cases).

Reason for Amendment

This amendment is in response to section 80001(b) which authorizes

the Commission to issue amended guidelines and policy statements to

assist the courts in applying 18 U.S.C. 3553(f). The effective date of

this amendment is September 23, 1994.

2. Amendment

Section 1B1.10(c)(formerly subsection (d)) is amended by inserting

``371,'' immediately before ``379''; and by deleting ``and 499'' and

inserting in lieu thereof ``499, and 506''.

Reason for Amendment

This amendment expands the listing in Sec. 1B1.10(c) (formerly

subsection (d)) to implement the directive in 28 U.S.C. 994(u) in

respect to guideline amendments that may be considered for retroactive

application. The amendment numbers listed are those as they appear in

Appendix C of the Guidelines Manual.

[FR Doc. 94-25426 Filed 10-13-94; 8:45 am]

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