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 United States Sentencing Commission, on May 1,

1995, 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), the Commission has specified an

effective date of November 1, 1995, 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 16, 1995.

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, 1995) by operation of law.

Notice of the amendments submitted to the Congress on May 1, 1995,

was published in the Federal Registers of January 9, 1995 (60 FR 2430)

and March 15, 1995 (60 FR 14054). A public hearing on the proposed

amendments was held in Washington, DC, on March 14, 1995. After review

of the hearing testimony and additional public comment, the Commission

promulgated the amendments set forth below, 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).

Richard P. Conaboy,

Chairman.

Amendments to the Sentencing Guidelines

Pursuant to Section 994(p) of Title 28, United States Code, 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, 1995, for these amendments.

Amendments to the Sentencing Guidelines, Policy Statements, and

Official Commentary

1. Amendment: Section 2A2.3 is amended by inserting the following

additional subsection:

``(b) Specific Offense Characteristic

(1) If the offense resulted in substantial bodily injury to an

individual under the age of sixteen years, increase by 4 levels.''.

The Commentary to Sec. 2A2.3 captioned ``Application Notes'' is

amended by inserting the following additional note:

``3. `Substantial bodily injury' means `bodily injury which

involves--(A) a temporary but substantial disfigurement; or (B) a

temporary but substantial loss or impairment of the function of any

bodily member, organ, or mental faculty.' 18 U.S.C. 113(b)(1).''.

Reason for Amendment: This amendment addresses the enactment of 18

U.S.C. 113(a)(7) (pertaining to certain assaults against minors) by

section 170201 of the Violent Crime Control and Law Enforcement Act of

1994.

2. Amendment: The Commentary to Sec. 2A3.1 captioned ``Application

Notes'' is amended by inserting the following additional notes:

``6. If a victim was sexually abused by more than one participant,

an upward departure may be warranted. See Sec. 5K2.8 (Extreme Conduct).

``7. If the defendant's criminal history includes a prior sentence

for conduct that is similar to the instant offense, an upward departure

may be warranted.''.

The Commentary to Sec. 2A3.2 captioned ``Application Notes'' is

amended by inserting the following additional note:

``4. If the defendant's criminal history includes a prior sentence

for conduct that is similar to the instant offense, an upward departure

may be warranted.''.

The Commentary to Sec. 2A3.3 captioned ``Application Note'' is

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

and by inserting the following additional note:

``2. If the defendant's criminal history includes a prior sentence

for conduct that is similar to the instant offense, an upward departure

may be warranted.''.

The Commentary to Sec. 2A3.4 captioned ``Application Notes'' is

amended by inserting the following additional note:

``5. If the defendant's criminal history includes a prior sentence

for conduct that is similar to the instant offense, an upward departure

may be warranted.''.

Reason for Amendment: Section 40111 of the Violent Crime Control

and Law Enforcement Act of 1994 doubles the authorized maximum term of

imprisonment for defendants convicted of sexual abuse offenses who have

been convicted previously of aggravated sexual abuse, sexual abuse, or

aggravated sexual contact (18 U.S.C. 2247). Section 40111 also directs

the Sentencing Commission to implement this provision by promulgating

amendments, if appropriate, to the applicable sentencing guidelines.

Although the Chapter Two sexual abuse guidelines do not provide for

enhancement for repeat sex offenses, Chapter Four (Criminal History and

Criminal Livelihood) does include a determination of the seriousness of

the defendant's criminal record based upon prior convictions

(Sec. 4A1.1). Section 4B1.1 (Career Offender) also provides

substantially enhanced penalties for offenders who engage in a crime of

violence (including forcible sexual offenses) or controlled substance

trafficking offense, having been sentenced previously on two or more

occasions for offenses of either type. Moreover, Sec. 4A1.3 (Adequacy

of Criminal History category) provides that an upward departure may be

considered ``[i]f reliable information indicates that the criminal

history category does not reflect the seriousness of the defendant's

past criminal conduct or the likelihood that the defendant will commit

other crimes.'' This amendment strengthens the sexual offense

guidelines by expressly listing as a basis for upward departure the

fact that the defendant has a prior sentence for conduct similar to the

instant sexual offense. [[Page 25075]]

Section 40112 of the Violent Crime Control and Law Enforcement Act

of 1994 directs the Commission to conduct a study and consider the

adequacy of the guidelines for sexual offenses with respect to a number

of factors. The provision also requires the preparation of a report to

Congress analyzing federal rape sentences and obtaining comment from

independent experts. See Report to Congress: Analysis of Penalties for

Federal Rape Cases (March 13, 1995). The Commission found that, in

general, the current guidelines provide appropriate penalties for these

offenses. This amendment strengthens Sec. 2A3.1 (Criminal Sexual Abuse;

Attempt to Commit Criminal Sexual Abuse) in one respect by expressly

listing as a basis for an upward departure the fact that a victim was

sexually abused by more than one participant.

3. Amendment: Section 2B1.1(b) is amended by deleting subdivision

(2); and by renumbering the remaining subdivisions, and any references

thereto, accordingly.

Section 2B1.1 is amended by inserting the following additional

subsection:

``(c) Cross Reference

(1) If (A) a firearm, destructive device, explosive material, or

controlled substance was taken, or the taking of such item was an

object of the offense, or (B) the stolen property received,

transported, transferred, transmitted, or possessed was a firearm,

destructive device, explosive material, or controlled substance, apply

Sec. 2D1.1, Sec. 2D2.1, Sec. 2K1.3, or Sec. 2K2.1, as appropriate, if

the resulting offense level is greater than that determined above.''.

The Commentary to Sec. 2B1.1 captioned ``Background'' is amended by

deleting the fourth paragraph.

Reason for Amendment: This amendment addresses an inconsistency in

guideline penalties between theft offenses involving the taking of

firearms or controlled substances that are sentenced under Sec. 2B1.1

(Larceny, Embezzlement, and Other Forms of Theft; Receiving,

Transporting, Transferring, Transmitting, or Possessing Stolen

Property) and similar offenses sentenced under Sec. 2D1.1 (Unlawful

Manufacturing, Importing, Exporting, or Trafficking; Attempt or

Conspiracy), Sec. 2D2.1 (Unlawful Possession; Attempt or Conspiracy),

Sec. 2K1.3 (Unlawful Receipt, Possession, or Transportation of

Explosive Materials; Prohibited Transactions Involving Explosive

Materials), or Sec. 2K2.1 (Unlawful Receipt, Possession, or

Transportation of Firearms or Ammunition; Prohibited Transactions

Involving Firearms or Ammunition). It accomplishes this by providing a

cross reference in Sec. 2B1.1 directing the application of Sec. 2D1.1,

Sec. 2D2.1, Sec. 2K1.3, or Sec. 2K2.1, as appropriate, if the resulting

offense level is greater.

4. Amendment: Section 2B5.1(b) is amended by inserting the

following additional subdivision:

``(3) If a dangerous weapon (including a firearm) was possessed in

connection with the offense, increase by 2 levels. If the resulting

offense level is less than level 13, increase to level 13.''.

The Commentary to Sec. 2B5.1 captioned ``Application Notes'' is

amended in Note 2 by deleting ``2B5.2'' and inserting in lieu thereof

``2F1.1''.

The Commentary to Sec. 2B5.1 captioned ``Background'' is amended by

inserting the following additional paragraph as the second paragraph:

`` Subsection (b)(3) implements, in a broader form, the

instruction to the Commission in section 110512 of Public Law 103-

322.''.

Section 2F1.1(b)(4) is amended by inserting ``(A)'' immediately

after ``involved''; and by inserting ``or (B) possession of a dangerous

weapon (including a firearm) in connection with the offense,''

immediately after ``injury,''.

The Commentary to Sec. 2F1.1 captioned ``Background'' is amended by

inserting the following additional paragraph as the sixth paragraph:

`` Subsection (b)(4)(B) implements, in a broader form, the

instruction to the Commission in section 110512 of Public Law 103-

322.''.

Reason for Amendment: Section 110512 of the Violent Crime Control

and Law Enforcement Act of 1994 directs the Commission to amend its

sentencing guidelines to provide an appropriate enhancement for a

defendant convicted of a felony under Chapter 25 (Counterfeiting and

Forgery) of title 18, United States Code, if the defendant used or

carried a firearm during and in relation to the offense. This amendment

implements this directive in a somewhat broader form. In addition, it

corrects an outdated reference in the Commentary to Sec. 2B5.1

(Offenses Involving Counterfeit Bearer Obligations of the United

States).

5. Amendment: Section 2D1.1(b) is amended by deleting subdivision

(1); by renumbering subdivision (2) as (3); and by inserting:

``(1) (Apply the greatest):

(A) If the defendant discharged a firearm, increase by 6 levels,

but if the resulting offense level is less than level 24, increase to

level 24.

(B) If the defendant brandished or otherwise used a dangerous

weapon (including a firearm), increase by 4 levels, but if the

resulting offense level is less than level 19, increase to level 19.

(C) If a dangerous weapon (including a firearm) was possessed,

increase by 3 levels, but if the dangerous weapon was a firearm and the

resulting offense level is less than level 18, increase to level 18.

(2) If the defendant possessed a firearm described in 26 U.S.C.

5845(a) or 18 U.S.C. 921(a)(30), increase by 2 levels.''.

Section 2D1.1(c)(1) is amended by deleting ``1.5 KG or more of

Cocaine Base;''.

Section 2D1.1(c)(2) is amended by deleting ``At least 500 G but

less than 1.5 KG of Cocaine Base;''.

Section 2D1.1(c)(3) is amended by deleting ``At least 150 G but

less than 500 G of Cocaine Base;''.

Section 2D1.1(c)(4) is amended by deleting ``At least 50 G but less

than 150 G of Cocaine Base;''.

Section 2D1.1(c)(5) is amended by deleting ``At least 35 G but less

than 50 G of Cocaine Base;''.

Section 2D1.1(c)(6) is amended by deleting ``At least 20 G but less

than 35 G of Cocaine Base;''.

Section 2D1.1(c)(7) is amended by deleting ``At least 5 G but less

than 20 G of Cocaine Base;''.

Section 2D1.1(c)(8) is amended by deleting ``At least 4 G but less

than 5 G of Cocaine Base;''.

Section 2D1.1(c)(9) is amended by deleting ``At least 3 G but less

than 4 G of Cocaine Base;''.

Section 2D1.1(c)(10) is amended by deleting ``At least 2 G but less

than 3 G of Cocaine Base;''.

Section 2D1.1(c)(11) is amended by deleting ``At least 1 G but less

than 2 G of Cocaine Base;''.

Section 2D1.1(c)(12) is amended by deleting ``At least 500 MG but

less than 1 G of Cocaine Base;''.

Section 2D1.1(c)(13) is amended by deleting ``At least 250 MG but

less than 500 MG of Cocaine Base;''.

Section 2D1.1(c)(14) is amended by deleting ``Less than 250 MG of

Cocaine Base;''.

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

```Cocaine base,' for the purposes of this guideline, means

`crack.' `Crack' is the street name for a form of cocaine base, usually

prepared by processing cocaine hydrochloride and sodium bicarbonate,

and usually appearing in a lumpy, rocklike form.'',

and inserting in lieu thereof:

```Cocaine,' for the purposes of this guideline, includes cocaine

hydrochloride, cocaine base, and crack cocaine.''.

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

amended in [[Page 25076]] Note 10 in the subdivision captioned

``Cocaine and Other Schedule I and II Stimulants'' by deleting:

``1 gm of Cocaine Base (`Crack') = 20 kg of marihuana''.

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

amended in Note 3 by deleting ```firearm' and `dangerous weapon''' and

inserting in lieu thereof ```firearm,' `dangerous weapon,'

`brandished,' and `otherwise used'''; and by inserting the following

additional paragraph at the end:

``A `firearm described in 18 U.S.C. 921(a)(30)' (pertaining to

semiautomatic assault weapons) does not include a weapon exempted under

the provisions of 18 U.S.C. 922(v)(3). A `firearm described in 26

U.S.C. 5845(a)' is discussed in the Commentary to Sec. 2K2.1 (Unlawful

Receipt, Possession, or Transportation of Firearms or Ammunition;

Prohibited Transactions Involving Firearms or Ammunition).''.

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

amended in Note 13 by deleting ``(b)(2)(B)'' and inserting in lieu

thereof ``(b)(3)(B)''.

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

amended by inserting the following additional notes:

``20. Under subsections (b)(1) (A), (B) and (b)(2), the defendant

is accountable for his own conduct and the conduct of others that he

aided, abetted, counseled, commanded, induced, procured, or willfully

caused. If a firearm is discharged by a participant in the same vehicle

as the defendant, or otherwise in close proximity to the defendant,

there shall be a rebuttable presumption that the defendant aided or

abetted, counseled, commanded, or induced the discharge of the firearm.

``21. If the offense resulted in bodily injury to any victim, an

upward departure may be warranted.''.

The Commentary to Sec. 2D1.1 captioned ``Background'' is amended in

the fifth paragraph by deleting ``(b)(2)'' and inserting in lieu

thereof ``(b)(3)''.

Section 2D2.1 is amended in subsection (a)(1) by deleting ``, an

analogue of these, or cocaine base'' and inserting in lieu thereof

``(or an analogue thereof)''.

Section 2D2.1 is amended by deleting subsection (b).

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

deleting the second paragraph.

Reason for Amendment: This amendment further implements section

280006 of the Violent Crime Control and Law Enforcement Act of 1994 in

which Congress directed the Commission to study federal sentencing

policy as it relates to possession and distribution of all forms of

cocaine, specifically including the differences in penalty levels that

apply to powder cocaine and crack cocaine. The Commission conducted

public hearings, received written comment, and conducted its own

analyses of the relevant research and of the Commission's extensive

database on cocaine sentences imposed in the federal courts. The

results of this study are contained in the Special Report to Congress:

Cocaine and Federal Sentencing Policy (February 1995).

This amendment specifically responds to the Congressional directive

to make recommendations for retention or modification of current

cocaine penalties. The Commission is recommending separately that

Congress eliminate the differential treatment of crack and powder

cocaine in the mandatory minimum penalties found in current statutes.

With this amendment, the Commission also makes changes in the

sentencing guidelines that it believes will better accomplish the

purposes of sentencing and will do so more fairly than the current

guidelines. This amendment equalizes sentences for offenses involving

similar amounts of crack cocaine and powder cocaine at the level

currently provided for powder cocaine. It also increases punishment for

all drug offenses that involve firearms or other dangerous weapons, and

authorizes an upward departure for bodily injury.

In public comment and testimony received by the Commission, several

problems with the current penalty differential between crack and powder

cocaine were cited. Critics questioned whether lengthier penalties for

crack are justified by differences between the two forms of cocaine.

Also, many commentators and a study issued by the U.S. Department of

Justice, Bureau of Justice Statistics, noted that the discrepancy in

the sentence lengths for crack and powder cocaine has been a major

factor in a growing gap between the average sentence imposed on Whites

and on minorities in the federal courts. (See Sentencing in the Federal

Courts: Does Race Matter?, November 1993.)

To evaluate current cocaine sentencing policy, the Commission

reviewed the legislative history of the relevant penalty provisions and

the goals that Congress has established for cocaine sentencing. On the

question of the impact of current penalties on Blacks, the Commission

concluded that no evidence supports a finding that racial bias or

animus undergirded the current penalty structure. However, the

Commission was deeply concerned that almost ninety percent of offenders

convicted of crack cocaine offenses in the federal courts are Black.

The Commission concluded that it is important that sufficient policy

bases exist to justify a penalty differential that has a severe impact

on a particular minority group.

For reasons discussed below, the Commission concluded that

sufficient policy bases for the current penalty differential do not

exist. Instead of differential treatment of crack and powder cocaine

defendants based solely on the form of the drug involved in the

offense, the Commission concluded that fairer sentencing would result

from guideline enhancements that are targeted to the particular harms

that are associated with some, but not all, crack cocaine offenses.

Harm-specific guideline enhancements will better punish the most

culpable offenders and protect the public from the most dangerous

offenders, while avoiding blanket increases for all offenders involved

with the crack form of cocaine.

As described in the Special Report, the 100-to-1 quantity ratio was

established before the guideline system was in effect and before

Congress could know how many of the harms associated with crack cocaine

offenses would be captured by other guideline sentence enhancements.

For example, the guidelines ensure lengthier imprisonment for leaders

and managers of drug distribution offenses (Sec. 3B1.1), for the sale

of controlled substances to juveniles or pregnant women (Sec. 2D1.2),

for the sale of controlled substances in protected locations

(Sec. 2D1.2), for the use of juveniles in controlled substance offenses

(Sec. 2D1.2), and for repeat offenders (Chapter 4). For offenses

involving death, a cross-reference to the first-degree murder guideline

is provided (Sec. 2D1.1). Consequently, to the extent that these other

guideline provisions take into account the increased harms associated

with some crack offenses, the Commission has concluded that the higher

offense levels based solely on the form of the drug that are found in

the current drug quantity table should be reduced.

The Commission also has determined that, given the increased

dangers posed by the possession and use of firearms or other dangerous

weapons in connection with controlled substance offenses (including

crack cocaine offenses), the enhancements provided by the guidelines

for these factors should be increased. Consequently, the amendment

increases the enhancement for possession of a firearm or other

dangerous weapon from two to three levels, with a minimum offense level

of 18 for possession of a firearm. A new four-level adjustment for

brandishing or otherwise using a dangerous weapon [[Page 25077]] and a

six-level adjustment for discharging a firearm are added. Additionally,

a two-level enhancement for possession of a firearm of the type

described in 26 U.S.C. 5845(a) or 18 U.S.C. 921(a)(30) is added (e.g.,

a machine gun, sawed-off shotgun, or a semi-automatic assault weapon).

A new application note expressly lists bodily injury to any victim as a

grounds for an upward departure.

With guideline enhancements that are targeted to factors associated

with some crack cocaine offenses, the Commission concluded that the

penalty differential based solely on the form of the drug should be

eliminated. Crack and powder cocaine are pharmacologically the same

drug. Both are dangerous and have a serious potential for abuse.

Cocaine is imported and distributed in powder form, meaning that those

persons highest in the distribution chain--whom the Commission

considers the most culpable and the most responsible for the nation's

cocaine problem--deal only in powder. Crack is manufactured from powder

cocaine, generally near the point of retail sale, using a simple

conversion process.

This cocaine distribution pattern, in combination with the current

penalty differential, has resulted in cases in which retail crack

dealers sometimes get longer sentences than the wholesale powder

distributors who supply them. Under this amendment, the drug

trafficking guidelines (Secs. 2D1.1, 2D1.2, 2D1.5) will provide for the

same significant punishment for crack distributors that is currently

provided for distributors of like quantities of powder cocaine. The

amended guideline will base punishment on the amount of cocaine

involved and other associated, systematic harms, not on the form of

cocaine. Hence, large-scale powder or crack cocaine suppliers will get

longer sentences than small-scale street dealers. Conforming changes

are also made in the simple possession guideline (Sec. 2D2.1).

The Commission is aware that an increase in cocaine addiction has

been attributed to crack cocaine. Addiction is more likely when a drug

is administered, as is crack, through smoking rather than through nasal

insufflation (snorting). However, the Commission determined that this

is not a reliable basis for establishing longer penalties for crack

cocaine, because powder cocaine may be injected and injection is even

more likely to lead to addiction than is smoking.

After careful consideration, the Commission concluded that

increased penalties are also not an appropriate response to concerns

about social maladies that have been associated with crack, such as

health problems and parental neglect among user groups. The Commission

was unable to establish that these social problems result from the drug

itself rather than from the disadvantaged social and economic

environment in which the drug often is used. Moreover, these problems

are not unique to crack cocaine but are associated with any serious

drug or alcohol abuse. The Commission believes that increased

punishment for crack cocaine solely because it is more commonly used by

members of disadvantaged groups is not appropriate. Nor does the fact

that crack cocaine is typically sold in smaller amounts, which may make

it more readily available among lower-income groups, justify increased

punishment compared to a form of the drug that is more commonly sold in

amounts available only to more affluent persons.

After consideration of the factors in the Special Report to

Congress and the purposes of sentencing set forth in 18 U.S.C. 3553,

the Commission has concluded that the guideline provisions, as amended,

will better take into account the increased harms associated with some

crack cocaine offenses and, thus, the different offense levels based

solely on the form of cocaine are not required.

6. Amendment: Section 2D1.1(b) is amended by inserting the

following additional subdivision:

``(4) If the object of the offense was the distribution of a

controlled substance in a prison, correctional facility, or detention

facility, increase by 2 levels.''.

Section 2D2.1 is amended by inserting the following new subsection:

``(b) Cross Reference

(1) If the offense involved possession of a controlled substance in

a prison, correctional facility, or detention facility, apply

Sec. 2P1.2 (Providing or Possessing Contraband in Prison).''.

Reason for Amendment: Section 90103 of the Violent Crime Control

and Law Enforcement Act of 1994 directs the Commission to amend the

guidelines to provide an adequate enhancement for an offense under 21

U.S.C. 841 that involves distributing a controlled substance in a

federal prison or detention facility. This amendment addresses this

directive by adding a two-level enhancement to Sec. 2D1.1 (Unlawful

Manufacturing, Importing, Exporting, or Trafficking; Attempt or

Conspiracy) for an offense involving a prison or detention facility,

similar to the two-level increase provided for other protected

locations in Sec. 2D1.2 (Drug Offenses Occurring Near Protected

Locations or Involving Underage or Pregnant Individuals; Attempt or

Conspiracy).

Section 90103 also directs the Commission to amend the guidelines

to provide an appropriate enhancement for an offense of simple

possession of a controlled substance under 21 U.S.C. 844 that occurs in

a federal prison or detention facility. This amendment addresses this

directive by providing a cross reference from Sec. 2D2.1 (Unlawful

Possession; Attempt or Conspiracy) to Sec. 2P1.2 (Providing or

Possessing Contraband in Prison) in such cases.

7. Amendment: Section 2D1.1(b) is amended by inserting the

following additional subdivision:

``(5) If the defendant meets the criteria set forth in subdivisions

(1)-(5) of Sec. 5C1.2 (Limitation on Applicability of Statutory Minimum

Sentences in Certain Cases) and the offense level determined above is

level 26 or greater, decrease by 2 levels.''.

Section 5C1.2 is repromulgated without change.

Reason for Amendment: Section 80001(b) of the Violent Crime Control

and Law Enforcement Act of 1994 (the ``Safety Valve'' provision)

directs the Commission to promulgate guidelines and policy statements

to implement section 80001(a) (providing an exception to otherwise

applicable statutory mandatory minimum sentences for certain defendants

convicted of specified drug offenses). Pursuant to this provision, the

Commission promulgated Sec. 5C1.2 (Limitation on Applicability of

Statutory Minimum Sentences in Certain Cases) as an emergency amendment

effective September 23, 1994. Under the terms of the congressionally-

granted authority, this amendment is temporary unless repromulgated in

the next amendment cycle under regularly applicable amendment

procedures. See Public Law No. 100-182, section 21, set forth as an

editorial note under 28 U.S.C. 994. This amendment repromulgates

Sec. 5C1.2, as set forth in the Guidelines Manual effective November 1,

1994. In addition, this amendment adds a new subsection to Sec. 2D1.1

to implement this provision by providing a two-level decrease in

offense level for cases meeting the criteria set forth in

Sec. 5C1.2(1)-(5).

8. Amendment: Section 2D1.1(c) is amended in the fifth note

immediately following the Drug Quantity Table by deleting ``if the

offense involved (A) 50 or more marihuana plants, treat each plant as

equivalent to 1 KG of marihuana; (B) fewer than 50 marihuana plants,'',

and by inserting ``, regardless of sex,'' immediately following

``plant''. The Commentary to Sec. 2D1.1 captioned ``Background'' is

amended in the fourth [[Page 25078]] paragraph by deleting ``In cases

involving fifty or more marihuana plants, an equivalency of one plant

to one kilogram of marihuana is derived from the statutory penalty

provisions of 21 U.S.C. 841(b)(1)(A), (B), and (D). In cases involving

fewer than fifty plants, the statute is silent as to the equivalency.

For cases involving fewer than fifty'' and inserting in lieu thereof

``For marihuana''; and by deleting ``, in the case of fewer than fifty

marihuana plants,''.

Reason for Amendment: For offenses involving 50 or more marihuana

plants, the guidelines currently use an equivalency of one plant = one

kilogram of marihuana, reflecting the quantities associated with the

five- and ten-year mandatory minimum penalties in 21 U.S.C. 841. For

offenses involving fewer than 50 marihuana plants, the guidelines use

an equivalency of one plant = 100 grams of marihuana, unless the weight

of the actual marihuana is greater. In actuality, a marihuana plant

does not produce a yield of one kilogram of marihuana. The one plant =

100 grams of marihuana equivalency used by the Commission for offenses

involving fewer than 50 marihuana plants was selected as a reasonable

approximation of the actual average yield of marihuana plants taking

into account (1) studies reporting the actual yield of marihuana plants

(37.5 to 412 grams depending on growing conditions); (2) that all

plants regardless of size are counted for guideline purposes while, in

actuality, not all plants will produce useable marihuana (e.g., some

plants may die of disease before maturity, and when plants are grown

outdoors some plants may be consumed by animals); and (3) that male

plants, which are counted for guideline purposes, are frequently culled

because they do not produce the same quality of marihuana as do female

plants. To enhance fairness and consistency, this amendment adopts the

equivalency of 100 grams per marihuana plant for all guideline

determinations.

9. Amendment: Section 2D1.1(c)(10) is amended by deleting:

``20 KG or more of Secobarbital (or the equivalent amount of other

Schedule I or II Depressants) or Schedule III substances (except

Anabolic Steroids); 40,000 or more units of Anabolic Steroids.'',

and by inserting in lieu thereof:

``40,000 or more units of Schedule I or II Depressants or Schedule

III substances.''.

Section 2D1.1(c)(11) is amended by deleting:

``At least 10 KG but less than 20 KG of Secobarbital (or the

equivalent amount of other Schedule I or II Depressants) or Schedule

III substances (except Anabolic Steroids);

At least 20,000 but less than 40,000 units of Anabolic Steroids.'',

and by inserting in lieu thereof:

``At least 20,000 but less than 40,000 units of Schedule I or II

Depressants or Schedule III substances.''.

Section 2D1.1(c)(12) is amended by deleting:

``At least 5 KG but less than 10 KG of Secobarbital (or the

equivalent amount of other Schedule I or II Depressants) or Schedule

III substances (except Anabolic Steroids);

At least 10,000 but less than 20,000 units of Anabolic Steroids.'',

and by inserting in lieu thereof:

``At least 10,000 but less than 20,000 units of Schedule I or II

Depressants or Schedule III substances.''.

Section 2D1.1(c)(13) is amended by deleting:

``At least 2.5 KG but less than 5 KG of Secobarbital (or the

equivalent amount of other Schedule I or II Depressants) or Schedule

III substances (except Anabolic Steroids);

At least 5,000 but less than 10,000 units of Anabolic Steroids.'',

and by inserting in lieu thereof:

``At least 5,000 but less than 10,000 units of Schedule I or II

Depressants or Schedule III substances.''.

Section 2D1.1(c)(14) is amended by deleting:

``At least 1.25 KG but less than 2.5 KG of Secobarbital (or the

equivalent amount of other Schedule I or II Depressants) or Schedule

III substances (except Anabolic Steroids);

At least 2,500 but less than 5,000 units of Anabolic Steroids; 20

KG or more of Schedule IV substances.'',

and inserting in lieu thereof:

``At least 2,500 but less than 5,000 units of Schedule I or II

Depressants or Schedule III substances.

40,000 or more units of Schedule IV substances.''.

Section 2D1.1(c)(15) is amended by deleting:

``At least 500 G but less than 1.25 KG of Secobarbital (or the

equivalent amount of other Schedule I or II Depressants) or Schedule

III substances (except Anabolic Steroids);

At least 1,000 but less than 2,500 units of Anabolic Steroids;

At least 8 KG but less than 20 KG of Schedule IV substances.'',

and inserting in lieu thereof:

``At least 1,000 but less than 2,500 units of Schedule I or II

Depressants or Schedule III substances;

At least 16,000 but less than 40,000 or more units of Schedule IV

substances.''.

Section 2D1.1(c)(16) is amended by deleting:

``At least 125 G but less than 500 G of Secobarbital (or the

equivalent amount of other Schedule I or II Depressants) or Schedule

III substances (except Anabolic Steroids);

At least 250 but less than 1,000 units of Anabolic Steroids;

At least 2 KG but less than 8 KG of Schedule IV substances; 20 KG

or more of Schedule V substances.'',

and inserting in lieu thereof:

``At least 250 but less than 1,000 units of Schedule I or II

Depressants or Schedule III substances;

At least 4,000 but less than 16,000 units of Schedule IV

substances;

At least 40,000 or more units of Schedule V substances.''.

Section 2D1.1(c)(17) is amended by deleting:

``Less than 125 G of Secobarbital (or the equivalent amount of

other Schedule I or II Depressants) or Schedule III substances (except

Anabolic Steroids);

Less than 250 units of Anabolic Steroids;

Less than 2 KG of Schedule IV substances;

Less than 20 KG of Schedule V substances.'',

and inserting in lieu thereof:

``Less than 250 units of Schedule I or II Depressants or Schedule

III substances;

Less than 4,000 units of Schedule IV substances;

Less than 40,000 units of Schedule V substances.''.

Section 2D1.1(c) is amended in the notes following the Drug

Quantity Table by inserting the following additional note as the sixth

note:

``In the case of Schedule I or II Depressants, Schedule III

substances (except anabolic steroids), Schedule IV substances, and

Schedule V substances, one `unit' means one pill, capsule, or tablet.

If the substance is in liquid form, one `unit' means 0.5 gms.''.

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

amended in Note 10d by deleting ``28 kilograms'' and inserting in lieu

thereof ``56,000 units''; by deleting ``50 kilograms'' and inserting in

lieu thereof ``100,000 units''; and by deleting ``100 kilograms'' and

inserting in lieu thereof ``200,000 units''.

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

amended in Note 10 in the Drug Equivalency Tables in the subsection

captioned ``Secobarbital and Other Schedule I or II Depressants'' by

deleting `` Secobarbital and Other''; and by deleting:

[[Page 25079]] ``1 gm of Amobarbital = 2 gm of marihuana

1 gm of Glutethimide = 0.4 gm of marihuana

1 gm of Methaqualone = 0.7 gm of marihuana

1 gm of Pentobarbital = 2 gm of marihuana

1 gm of Secobarbital = 2 gm of marihuana'', and inserting in lieu

thereof:

``1 unit of a Schedule I or II Depressant = 1 gm of marihuana''.

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

amended in Note 10 in the Drug Equivalency Tables in the subsection

captioned ``Schedule III Substances'' by deleting:

``1 gm of a Schedule III Substance (except anabolic steroids) = 2

gm of marihuana

1 unit of anabolic steroids = 1 gm of marihuana'',

and inserting in lieu thereof:

``1 unit of a Schedule III Substance = 1 gm of marihuana''.

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

amended in Note 10 in the Drug Equivalency Tables in the subsection

captioned ``Schedule IV Substances'' by deleting:

``1 gm of a Schedule IV Substance = 0.125 gm of marihuana'',

and inserting in lieu thereof:

``1 unit of a Schedule IV Substance = 0.0625 gm of marihuana''.

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

amended in Note 10 in the Drug Equivalency Tables in the subsection

captioned ``Schedule V Substances'' by deleting:

``1 gm of a Schedule V Substance = 0.0125 gm of marihuana'',

and inserting in lieu thereof:

``1 unit of a Schedule V Substance = 0.00625 gm of marihuana''.

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

amended in Note 11 in the ``Typical Weight Per Unit Table'' by deleting

the caption ``Depressants''; and by deleting ``Methaqualone* 300 mg''.

Reason for Amendment: This amendment modifies the determination of

the base offense level with respect to Schedule I and II Depressants

and Schedule III, IV, and V controlled substances by applying the Drug

Quantity Table according to the number of pills, capsules, or tablets

rather than by the gross weight of the pills, capsules, or tablets.

Schedule I and II Depressants and Schedule III, IV, and V substances

are almost always in pill, capsule, or tablet form. The current

guidelines use the total weight of the pill, tablet, or capsule

containing the controlled substance. This method leads to anomalies

because the weight of most pills is determined primarily by the filler

rather than the controlled substance. Thus, heavy pills lead to higher

offense levels even though there is little or no relationship between

gross weight and the potency of the pill. Applying the Drug Quantity

Table according to the number of pills will both simplify guideline

application and more fairly assess the scale and seriousness of the

offense.

10. Amendment: Section 2D1.1(c) is amended in the notes following

the Drug Quantity Table by inserting the following additional notes at

the end:

``Hashish, for the purposes of this guideline, means a resinous

substance of cannabis that includes (i) one or more of the

tetrahydrocannabinols (as listed in 21 CFR Sec. 1308.11(d)(25)), (ii)

at least two of the following: cannabinol, cannabidiol, or

cannabichromene, and (iii) fragments of plant material (such as

cystolith fibers).

Hashish oil, for the purposes of this guideline, means a

preparation of the soluble cannabinoids derived from cannabis that

includes (i) one or more of the tetrahydrocannabinols (as listed in 21

CFR 1308.11(d)(25)) and (ii) at least two of the following: cannabinol,

cannabidiol, or cannabichromene, and (iii) is essentially free of plant

material (e.g., plant fragments). Typically, hashish oil is a viscous,

dark colored oil, but it can vary from a dry resin to a colorless

liquid.''.

Section 2D1.1(c) is amended by inserting ``Notes to Drug Quantity

Table:'' immediately following the asterisk at the beginning of the

notes to the Drug Quantity Table; and by inserting a letter designation

immediately before each note in alphabetical order beginning with

``(A)''.

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

amended in Note 1 by inserting the following additional paragraph at

the end:

``Similarly, in the case of marihuana having a moisture content

that renders the marihuana unsuitable for consumption without drying

(this might occur, for example, with a bale of rain-soaked marihuana or

freshly harvested marihuana that had not been dried), an approximation

of the weight of the marihuana without such excess moisture content is

to be used.''.

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

amended in Note 10 in the Drug Equivalency Table in the subdivision

captioned ``Schedule I or II Opiates'' by inserting at the end:

``1 gm of Levo-alpha-acetylmethadol (LAAM)= 3 kg of marihuana''.

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

amended in Note 10 in the Drug Equivalency Table in the subdivision

captioned ``Cocaine and Other Schedule I and II Stimulants'' by

deleting:

``1 gm of L-Methamphetamine/Levo-methamphetamine/L-Desoxyephedrine

= 40 gm of marihuana'';

and inserting in lieu thereof:

``1 gm of Khat = .01 gm of marihuana''.

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

amended in Note 12 by deleting:

``In an offense involving negotiation to traffic in a controlled

substance, the weight under negotiation in an uncompleted distribution

shall be used to calculate the applicable amount. However, where the

court finds that the defendant did not intend to produce and was not

reasonably capable of producing the negotiated amount, the court shall

exclude from the guideline calculation the amount that it finds the

defendant did not intend to produce and was not reasonably capable of

producing.'',

and by inserting in lieu thereof:

``In an offense involving an agreement to sell a controlled

substance, the agreed-upon quantity of the controlled substance shall

be used to determine the offense level unless the sale is completed and

the amount delivered more accurately reflects the scale of the offense.

For example, a defendant agrees to sell 500 grams of cocaine, the

transaction is completed by the delivery of the controlled substance--

actually 480 grams of cocaine, and no further delivery is scheduled. In

this example, the amount delivered more accurately reflects the scale

of the offense. In contrast, in a reverse sting, the agreed-upon

quantity of the controlled substance would more accurately reflect the

scale of the offense because the amount actually delivered is

controlled by the government, not by the defendant. If, however, the

defendant establishes that he or she did not intend to provide, or was

not reasonably capable of providing, the agreed-upon quantity of the

controlled substance, the court shall exclude from the offense level

determination the amount of controlled substance that the defendant

establishes that he or she did not intend to provide or was not

reasonably capable of providing.''.

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

amended by inserting the following additional note:

``22. For purposes of the guidelines, a `plant' is an organism

having leaves and a readily observable root formation (e.g., a

marihuana cutting having roots, a rootball, or root hairs is a

marihuana plant).''. [[Page 25080]]

Reason for Amendment: This is a six-part amendment. First, this

amendment adds definitions of hashish and hashish oil to Sec. 2D1.1

(Unlawful Manufacturing, Importing, Exporting, or Trafficking; Attempt

or Conspiracy) in the notes following the Drug Quantity Table.

Currently, these terms are not defined by statute or in the guidelines,

leading to litigation as to which substances are to be classified as

hashish or hashish oil, as opposed to marihuana. See United States v.

Gravelle, 819 F. Supp. 1076 (S.D. Fla. 1993); United States v. Schultz,

810 F. Supp. 230 (S.D. Ohio 1992).

Second, this amendment clarifies the treatment of marihuana that

has a moisture content sufficient to render it unusable without drying

(e.g., a bale of marihuana left in the rain or recently harvested

marihuana that has not had time to dry). In such cases, using the

weight of the wet marihuana can increase the offense level for a factor

that bears no relationship to the scale of the offense or the

marketable form of the marihuana. Prior to the effective date of the

1993 amendments, two circuits had approved weighing wet marihuana

despite the fact that the marihuana was not in a usable form. United

States v. Pinedo-Montoya, 966 F.2d 591 (10th Cir. 1992); United States

v. Garcia, 925 F.2d 170 (7th Cir. 1991). Although Application Note 1 in

the Commentary to Sec. 2D1.1, effective November 1, 1993 (pertaining to

unusable parts of a mixture or substance) should produce the

appropriate result because marihuana must be dried before being used,

this type of case is sufficiently distinct to warrant a specific

reference in this application note to ensure correct application of the

guideline.

Third, this amendment addresses the issue of what constitutes a

marihuana plant. Several circuits have confronted the issue of when a

cutting from a marihuana plant becomes a ``plant.'' The appellate

courts generally have held that the term ``plant'' should be defined by

``its plain and ordinary dictionary meaning * * *. [A] marihuana

`plant' includes those cuttings accompanied by root balls.'' United

States v. Edge, 989 F.2d 871, 878 (6th Cir. 1993) (quoting United

States v. Eves, 932 F.2d 856, 860 (10th Cir. 1991), appeal after remand

30 F.3d 134 (6th Cir. 1994)). See also United States v. Malbrough, 922

F.2d 458, 465 (8th Cir. 1990) (acquiescing in the district court's

apparent determination that certain marihuana cuttings that did not

have their own ``root system'' should not be counted as plants), cert.

denied, 501 S. Ct. 1258 (1991); United States v. Carlisle, 907 F.2d 94,

96 (9th Cir. 1990)(finding that cuttings were plants where each cutting

had previous degrees of root formation not clearly erroneous); United

States v. Angell, 794 F. Supp. 874, 875 (D. Minn. 1990) (refusing to

count as plants marihuana cuttings that have no visible root

structure), aff'd in part and rev'd in part, 11 F.3d 806 (8th Cir.),

cert. denied, 114 S. Ct. 3747 (1994); United States v. Fitol, 733 F.

Supp. 1312, 1316 (D. Minn. 1990) (``individual cuttings, planted with

the intent of growing full size plants, and which had grown roots, are

`plants' both within common parlance and within Section 841(b)'');

United States v. Speltz, 733 F. Supp. 1311, 1312 (D. Minn. 1990) (small

marihuana plants, e.g., cuttings with roots, are nonetheless still

marihuana plants), aff'd. 938 F.2d 188 (8th Cir. 1991). Because this

issue arises frequently, this amendment adds an application note to the

Commentary of Sec. 2D1.1 setting forth the definition of a plant for

guidelines purposes.

Fourth, this amendment provides equivalencies for two additional

controlled substances: (1) Khat, and (2) levo-alpha-acetylmethadol

(LAAM) in the Drug Equivalency Tables in the Commentary to Sec. 2D1.1.

Fifth, this amendment deletes the distinction between d- and l-

methamphetamine in the Drug Equivalency Tables in the Commentary to

Sec. 2D1.1. L-methamphetamine, which is a rather weak form of

methamphetamine, is rarely seen and is not made intentionally, but

rather results from a botched attempt to produce d-methamphetamine.

Under this amendment, l-methamphetamine would be treated the same as d-

methamphetamine (i.e., as if an attempt to manufacture or distribute d-

methamphetamine). Currently, unless the methamphetamine is specifically

tested to determine its form, litigation can result over whether the

methamphetamine is l-methamphetamine or d-methamphetamine. In addition,

there is another form of methamphetamine (dl-methamphetamine) that is

not listed in the Drug Equivalency Table. The listing of l-

methamphetamine as a separate form of methamphetamine has led to

litigation as to how dl-methamphetamine should be treated. In United

States v. Carroll, 6 F.3d 735 (11th Cir. 1993), cert. denied, 114 S.

Ct. 1234 (1994), a case in which the Eleventh Circuit held that dl-

methamphetamine should be treated as d-methamphetamine, the majority

and dissenting opinions both point out the complexity engendered by the

current distinction between d- and l- methamphetamine. Under this

amendment, all forms of methamphetamine are treated alike, thereby

simplifying guideline application.

Sixth, this amendment revises the Commentary to Sec. 2D1.1 to

provide that in a case involving negotiation for a quantity of a

controlled substance, the negotiated quantity is used to determine the

offense level unless the completed transaction establishes a different

quantity, or the defendant establishes that he or she was not

reasonably capable of producing the negotiated amount or otherwise did

not intend to produce that amount. Disputes over the interpretation of

this application note have produced much litigation. See, e.g., United

States v. Tillman, 8 F.3d 17 (11th Cir. 1993); United States v. Smiley,

997 F.2d 475 (8th Cir. 1993); United States v. Barnes, 993 F.2d 680

(9th Cir. 1993), cert. denied, 115 S. Ct. 96 (1994); United States v.

Rodriguez, 975 F.2d 999 (3d Cir. 1992); United States v. Christian, 942

F.2d 363 (6th Cir. 1991), cert. denied, 502 U.S. 1045 (1992); United

States v. Richardson, 939 F.2d 135 (4th Cir.), 502 U.S. 987 (1991);

United States v. Ruiz, 932 F.2d 1174 (7th Cir.), cert. denied, 502 U.S.

849 (1991); United States v. Bradley, 917 F.2d 601 (1st Cir. 1990).

11. Amendment: Section 2D1.11 and the commentary thereto is amended

by deleting ``listed precursor'' wherever it appears and inserting in

lieu thereof ``list I''; by deleting ``listed essential'' wherever it

appears and inserting in lieu thereof ``list II''; and by deleting

``Precursor Chemical Equivalency Table'' wherever it appears and

inserting in lieu thereof ``List I Chemical Equivalency Table''.

Section 2D1.11(d) is amended by deleting all lines referencing d-

lysergic acid.

The Chemical Quantity Table in Sec. 2D1.11(d) is amended in

subdivisions (1)-(9) by adding the following list I chemicals (formerly

Listed Precursor Chemicals) in the appropriate place in alphabetical

order by subdivision as follows:

(1) ``17.8 KG or more of Benzaldehyde;'',

``12.6 KG or more of Nitroethane;'',

(2) ``At least 5.3 KG but less than 17.8 KG of Benzaldehyde;'',

``At least 3.8 KG but less than 12.6 KG of Nitroethane;'',

(3) ``At least 1.8 KG but less than 5.3 KG of Benzaldehyde;'',

``At least 1.3 KG but less than 3.8 KG of Nitroethane;'',

(4) ``At least 1.2 KG but less than 1.8 KG of Benzaldehyde;'',

``At least 879 G but less than 1.3 KG of Nitroethane;'',

[[Page 25081]]

(5) ``At least 712 G but less than 1.2 KG of Benzaldehyde;'',

``At least 503 G but less than 879 G of Nitroethane;'',

(6) ``At least 178 G but less than 712 G of Benzaldehyde;'',

``At least 126 G but less than 503 G of Nitroethane;'',

(7) ``At least 142 G but less than 178 G of Benzaldehyde;'',

``At least 100 G but less than 126 G of Nitroethane;'',

(8) ``At least 107 G but less than 142 G of Benzaldehyde;'',

``At least 75 G but less than 100 G of Nitroethane;'',

(9) ``Less than 107 G of Benzaldehyde;'',

``Less than 75 G of Nitroethane;'';

and by adding the following chemicals, in the appropriate place in

alphabetical order, to the List I Chemical Equivalency Table:

``1 gm of Benzaldehyde** = 1.124 gm of Ephedrine'',

``1 gm of Nitroethane** = 1.592 gm of Ephedrine''.

Section 2D1.11(d) is amended in the notes following the Chemical

Quantity Table by deleting Note (A) and inserting in lieu thereof:

``(A) The List I Chemical Equivalency Table provides a method for

combining different precursor chemicals to obtain a single offense

level. In a case involving two or more list I chemicals used to

manufacture different controlled substances or to manufacture one

controlled substance by different manufacturing processes, convert each

to its ephedrine equivalency from the table below, add the quantities,

and use the Chemical Quantity Table to determine the base offense

level. In a case involving two or more list I chemicals used together

to manufacture a controlled substance in the same manufacturing

process, use the quantity of the single list I chemical that results in

the greatest base offense level.'';

and by deleting the first paragraph of Note D and inserting in lieu

thereof:

``In a case involving ephedrine tablets, use the weight of the

ephedrine contained in the tablets, not the weight of the entire

tablets, in calculating the base offense level.''.

Section 2D1.11(d) is amended by designating the List I Chemical

Equivalency Table (formerly the Precursor Chemical Equivalency Table)

as Note ``(E)''.

Section 2D1.11(d) is amended in the List I Chemical Equivalency

Table (formerly the Precursor Chemical Equivalency Table) by inserting

``**'' immediately after each of the following substances: Ethylamine,

N-Methylephedrine, N-Methylpseudoephedrine, Norpseudoephedrine,

Phenylpropanolamine, Pseudoephedrine, and 3,4-Methylenedioxyphenyl-2-

propanone.

Section 2D1.11(d) is amended in the note following the List I

Chemical Equivalency Table (formerly the Precursor Chemical Equivalency

Table) designated by two asterisks by deleting ``both hydriodic acid

and ephedrine'' and inserting in lieu thereof:

``(A) hydriodic acid and one of the following: ephedrine, N-

methylephedrine, N-methylpseudoephedrine, norpseudoephedrine,

phenylpropanolamine, or pseudoephedrine; or (B) ethylamine and 3,4-

methylenedioxyphenyl-2-propanone; or (C) benzaldehyde and

nitroethane,''.

The Commentary to Sec. 2D1.11 captioned ``Application Notes'' is

amended in Note 3 by deleting ``3, 4 methylenedioxphenyl-2-propanone''

wherever it appears and inserting in lieu thereof in each instance

``methylamine''.

The Commentary to Sec. 2D1.11 captioned ``Application Notes'' is

amended by deleting Note 4 and inserting in lieu thereof:

``4. When two or more list I chemicals are used together in the

same manufacturing process, calculate the offense level for each

separately and use the quantity that results in the greatest base

offense level. In any other case, the quantities should be added

together (using the List I Chemical Equivalency Table) for the purpose

of calculating the base offense level.

Examples:

(a) The defendant was in possession of five kilograms of ephedrine

and three kilograms of hydriodic acid. Ephedrine and hydriodic acid

typically are used together in the same manufacturing process to

manufacture methamphetamine. Therefore, the base offense level for each

listed chemical is calculated separately and the list I chemical with

the higher base offense level is used. Five kilograms of ephedrine

result in a base offense level of 24; 300 grams of hydriodic acid

result in base offense level of 14. In this case, the base offense

level would be 24.

(b) The defendant was in possession of five kilograms of ephedrine

and two kilograms of phenylacetic acid. Although both of these

chemicals are used to manufacture methamphetamine, they are not used

together in the same manufacturing process. Therefore, the quantity of

phenylacetic acid should be converted to an ephedrine equivalency using

the List I Chemical Equivalency Table and then added to the quantity of

ephedrine. In this case, the two kilograms of phenylacetic acid convert

to two kilograms of ephedrine (see List I Chemical Equivalency Table),

resulting in a total equivalency of seven kilograms of ephedrine.''.

The Commentary to Sec. 2D1.11 captioned ``Background'' is amended

in the second sentence by deleting ``Listed precursor'' and inserting

in lieu thereof ``List I''; by deleting ``critical to the formation''

and inserting in lieu thereof ``important to the manufacture''; and by

inserting ``usually'' immediately before ``become''.

The Commentary to Sec. 2D1.11 captioned ``Background'' is amended

in the last sentence by deleting ``Listed essential'' and inserting in

lieu thereof ``List II''; by inserting ``used as'' immediately

following ``generally''; and by deleting ``, and do not become part of

the finished product''.

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

amended by deleting Note 14; and by renumbering the remaining notes

accordingly.

Reason for Amendment: The Domestic Chemical Diversion Act of 1993,

Public Law 103-200, 107 Stat. 2333, changed the designations of the

listed chemicals from ``listed precursor chemicals'' and ``listed

essential chemicals'' to ``list I chemicals'' and ``list II

chemicals,'' respectively. Section 2D1.11 (Unlawfully Distributing,

Importing, Exporting or Possessing a Listed Chemical; Attempt or

Conspiracy) currently refers to ``listed precursor chemicals'' and

``listed essential chemicals.'' This amendment conforms Sec. 2D1.11 to

these statutory changes.

The Act also adds pills containing ephedrine as a list I chemical.

Ephedrine itself is a list I chemical under 21 U.S.C. 802(34). Pills

containing ephedrine previously were not covered by the statute and

thus legally could be purchased ``over the counter.'' Purchases of

these pills were sometimes made in large quantities and the pills

crushed and processed to extract the ephedrine (which can be used to

make methamphetamine). Unlike ephedrine, which is purchased from a

chemical company and is virtually 100 percent pure, these tablets

contain a substantially lower percentage of ephedrine (about 25

percent). To avoid unwarranted disparity, this amendment adds a note to

Sec. 2D1.11 providing that the amount of actual ephedrine contained in

a pill is to be used in determining the offense level.

In addition, the Act removes three chemicals from, and adds two

others to, the listed chemicals controlled under the Controlled

Substances Act. Two of [[Page 25082]] the chemicals removed from the

list are not currently listed in Sec. 2D1.11 because the Commission was

aware that they are not used in the manufacture of any controlled

substance. The third chemical removed from the list, d-lysergic acid,

was listed both as a listed chemical in Sec. 2D1.11 and as a controlled

substance in Sec. 2D1.1. This amendment conforms Sec. 2D1.11 by

deleting all references to d-lysergic acid. The two chemicals added as

listed chemicals are benzaldehyde and nitroethane. Both of these

chemicals are used to make methamphetamine. The base offense levels for

listed chemicals in Sec. 2D1.11 are determined by reference to the most

common controlled substance the chemical is used to manufacture;

consequently, this amendment adds these chemicals to the Chemical

Quantity Table based on information provided by the Drug Enforcement

Administration regarding their use in the production of

methamphetamine.

A number of the chemicals in the Chemical Quantity Table are used

in the same process to make a controlled substance. Currently, a note

at the end of the Precursor Chemical Equivalency Table addresses this

situation for hydriodic acid and ephedrine. This amendment expands this

note to cover other chemicals that similarly are used together.

Finally, the amendment corrects the Commentary to Sec. 2D1.11 with

respect to an example of a listed chemical that is used with P2P to

manufacture methamphetamine.

12. Amendment: Section 2D1.12(a) is amended by inserting ``(Apply

the greater)'' immediately after ``Base Offense Level''; and by

deleting ``12'' and inserting in lieu thereof:

``(1) 12, if the defendant intended to manufacture a controlled

substance or knew or believed the prohibited equipment was to be used

to manufacture a controlled substance; or

(2) 9, if the defendant had reasonable cause to believe the

prohibited equipment was to be used to manufacture a controlled

substance.''.

Reason for Amendment: The Domestic Chemical Diversion Act of 1993,

Public Law 103-200, 107 Stat. 2333, broadens the prohibition in 21

U.S.C. 843(a) to cover possessing, manufacturing, distributing,

exporting, or importing three-neck, round-bottom flasks, tableting

machines, encapsulating machines, or gelatin capsules having reasonable

cause to believe they will be used to manufacture a controlled

substance. Section 2D1.12 (Unlawful Possession, Manufacture,

Distribution, or Importation of Prohibited Flask or Equipment; Attempt

or Conspiracy) applies to this conduct. Consistent with the treatment

of similar conduct under Secs. 2D1.11(b)(2) and 2D1.13(b)(2), this

amendment provides an alternative base offense level in Sec. 2D1.12 to

address the case in which the defendant had reasonable cause to

believe, but not actual knowledge or belief, that the equipment was to

be used to manufacture a controlled substance.

13. Amendment: The Introductory Commentary to Chapter Two, Part H,

Subpart I, and Secs. 2H1.1, 2H1.3, 2H1.4, and 2H1.5 are deleted and the

following inserted in lieu thereof:

``Sec. 2H1.1. Offenses Involving Individual Rights

(a) Base Offense Level (Apply the greatest):

(1) the offense level from the offense guideline applicable to any

underlying offense;

(2) 12, if the offense involved two or more participants;

(3) 10, if the offense involved (A) the use or threat of force

against a person; or (B) property damage or the threat of property

damage; or

(4) 6, otherwise.

(b) Specific Offense Characteristics

(1) If (A) the defendant was a public official at the time of the

offense; or (B) the offense was committed under color of law, increase

by 6 levels.

Commentary

Statutory Provisions: 18 U.S.C. 241, 242, 245(b), 246, 247, 248,

1091; 42 U.S.C. 3631.

Application Notes

1. `Offense guideline applicable to any underlying offense' means

the offense guideline applicable to any conduct established by the

offense of conviction that constitutes an offense under federal, state,

or local law (other than an offense that is itself covered under

Chapter Two, Part H, Subpart 1).

In certain cases, conduct set forth in the count of conviction may

constitute more than one underlying offense (e.g., two instances of

assault, or one instance of assault and one instance of arson). In such

cases, determine the number and nature of underlying offenses by

applying the procedure set forth in Application Note 5 of Sec. 1B1.2

(Applicable Guidelines). If the Chapter Two offense level for any of

the underlying offenses under subsection (a)(1) is the same as, or

greater than, the alternative base offense level under subsection

(a)(2), (3), or (4), as applicable, use subsection (a)(1) and treat

each underlying offense as if contained in a separate count of

conviction. Otherwise, use subsection (a)(2), (3), or (4), as

applicable, to determine the base offense level.

2. `Participant' is defined in the Commentary to Sec. 3B1.1

(Aggravating Role).

3. The burning or defacement of a religious symbol with an intent

to intimidate shall be deemed to involve the threat of force against a

person for the purposes of subsection (a)(3)(A).

4. If the finder of fact at trial or, in the case of a plea of

guilty or nolo contendere, the court at sentencing determines beyond a

reasonable doubt that the defendant intentionally selected any victim

or any property as the object of the offense because of the actual or

perceived race, color, religion, national origin, ethnicity, gender,

disability, or sexual orientation of any person, an additional 3-level

enhancement from Sec. 3A1.1(a) will apply.

5. If subsection (b)(1) applies, do not apply Sec. 3B1.3 (Abuse of

Position of Trust or Use of Special Skill).''.

Section 3A1.1 is deleted and the following inserted in lieu

thereof:

``Sec. 3A1.1. Hate Crime Motivation or Vulnerable Victim

(a) If the finder of fact at trial or, in the case of a plea of

guilty or nolo contendere, the court at sentencing determines beyond a

reasonable doubt that the defendant intentionally selected any victim

or any property as the object of the offense because of the actual or

perceived race, color, religion, national origin, ethnicity, gender,

disability, or sexual orientation of any person, increase by 3 levels.

(b) If the defendant knew or should have known that a victim of the

offense was unusually vulnerable due to age, physical or mental

condition, or that a victim was otherwise particularly susceptible to

the criminal conduct, increase by 2 levels.

(c) Special Instruction

(1) Subsection (a) shall not apply if an adjustment from

Sec. 2H1.1(b)(1) applies.

Commentary

Application Notes

1. Subsection (a) applies to offenses that are hate crimes. Note

that special evidentiary requirements govern the application of this

subsection.

Do not apply subsection (a) on the basis of gender in the case of a

sexual offense. In such cases, this factor is taken into account by the

offense level of the Chapter Two offense guideline.

2. Subsection (b) applies to offenses involving an unusually

vulnerable victim in which the defendant knows or should have known of

the victim's unusual vulnerability. The adjustment would apply, for

example, in a fraud [[Page 25083]] case where the defendant marketed an

ineffective cancer cure or in a robbery where the defendant selected a

handicapped victim. But it would not apply in a case where the

defendant sold fraudulent securities by mail to the general public and

one of the victims happened to be senile. Similarly, for example, a

bank teller is not an unusually vulnerable victim solely by virtue of

the teller's position in a bank.

Do not apply subsection (b) if the offense guideline specifically

incorporates this factor. For example, if the offense guideline

provides an enhancement for the age of the victim, this subsection

should not be applied unless the victim was unusually vulnerable for

reasons unrelated to age.

3. The adjustments from subsections (a) and (b) are to be applied

cumulatively. Do not, however, apply subsection (b) in a case in which

subsection (a) applies unless a victim of the offense was unusually

vulnerable for reasons unrelated to race, color, religion, national

origin, ethnicity, gender, disability, or sexual orientation.

4. If an enhancement from subsection (b) applies and the

defendant's criminal history includes a prior sentence for an offense

that involved the selection of a vulnerable victim, an upward departure

may be warranted.

Background: Subsection (a) reflects the directive to the

Commission, contained in Section 280003 of the Violent Crime Control

and Law Enforcement Act of 1994, to provide an enhancement of not less

than three levels for an offense when the finder of fact at trial

determines beyond a reasonable doubt that the defendant had a hate

crime motivation (i.e., a primary motivation for the offense was the

race, color, religion, national origin, ethnicity, gender, disability,

or sexual orientation of the victim). To avoid unwarranted sentencing

disparity based on the method of conviction, the Commission has

broadened the application of this enhancement to include offenses that,

in the case of a plea of guilty or nolo contendere, the court at

sentencing determines are hate crimes.''.

The Commentary to Sec. 1B1.5 captioned ``Application Notes'' is

amended in Note 1 by deleting ``2H1.1(a)(2)'' and inserting in lieu

thereof ``2H1.1(a)(1)''.

The Commentary to Sec. 2H4.1 captioned ``Application Note'' is

amended in Note 1 by deleting ``2 plus the offense'' and inserting in

lieu thereof ``Offense''.

Section 3D1.2(d) is amended in the third paragraph by deleting

``2H1.2, 2H1.3, 2H1.4,''.

Reason for Amendment: This is a five-part amendment. First, the

amendment adds an additional subsection to Sec. 3A1.1 (Vulnerable

Victim) to implement the directive contained in Section 280003 of the

Violent Crime Control and Law Enforcement Act of 1994 by providing a

three-level increase in the offense level for offenses that are ``hate

crimes.'' Second, the amendment consolidates Secs. 2H1.1, 2H1.3, 2H1.4,

and 2H1.5, and adjusts the offense levels in these guidelines to

harmonize them with each other, reflect the additional enhancement now

contained in Sec. 3A1.1, and better reflect the seriousness of the

underlying conduct. Third, the amendment references violations of 18

U.S.C. 248 (the Freedom of Access to Clinic Entrances Act of 1994,

Public Law 103-259, 108 Stat. 694) to the consolidated Sec. 2H1.1.

Fourth, the amendment clarifies the operation of Sec. 3A1.1 with

respect to a vulnerable victim. Fifth, the amendment addresses the

directive to the Commission in section 240002 of the Violent Crime

Control and Law Enforcement Act of 1994 (pertaining to elderly victims

of crimes of violence).

Section 280003 of the Violent Crime Control and Law Enforcement Act

of 1994 directs the Commission to provide a minimum enhancement of

three levels for offenses that the finder of fact at trial determines

are hate crimes. This directive also instructs the Commission to ensure

that there is reasonable consistency with other guidelines and that

duplicative punishments for the same offense are avoided. The

congressional directive in section 280003 requires that the three-level

hate crimes enhancement apply where ``the finder of fact at trial

determines beyond a reasonable doubt'' that the offense of conviction

was a hate crime. This amendment makes the enhancement applicable if

either the finder of fact at trial or, in the case of a guilty or nolo

contendere plea, the court at sentencing determines that the offense

was a hate crime. By broadening the applicability of the

congressionally mandated enhancement, this amendment will avoid

unwarranted sentencing disparity based on the mode of conviction. The

Commission's general guideline promulgation authority, see 28 U.S.C.

994, permits such a broadening of the enhancement.

The addition of a generally applicable Chapter Three hate crimes

enhancement requires amendment of the civil rights offense guidelines

to avoid duplicative punishments. In addition, to further the

Commission's goal of simplifying the operation of the guidelines, the

proposed amendment consolidates the four current civil rights offense

guidelines into one guideline and adjusts these guidelines to take into

account the new enhancement under Sec. 3A1.1(a).

The Freedom of Access to Clinic Entrances Act of 1994 makes it a

crime to interfere with access to reproductive services or to interfere

with certain religious activities. This Act criminalizes a broad array

of conduct, from non-violent obstruction of the entrance to a clinic to

murder. The amendment treats these violations in the same way as other

offenses involving individual rights.

Section 240002 of the Violent Crime Control and Law Enforcement Act

of 1994 directs the Commission to ensure that the guidelines provide

sufficiently stringent penalties for crimes of violence against elderly

victims. Upon review of the guidelines, the Commission determined that

the penalties currently provided generally appear appropriate; however,

this amendment strengthens the Commentary to Sec. 3A1.1 in one area by

expressly providing a basis for an upward departure if both the current

offense and a prior offense involved a vulnerable victim (including an

elderly victim), regardless of the type of offense.

Finally, Section 250003 of the Violent Control and Law Enforcement

Act of 1994 directs the Commission to review, and if necessary, amend

the sentencing guidelines to ensure that victim-related adjustments for

fraud offenses against older victims are adequate. Section 250003 also

directs the Commission to study and report to the Congress on this

issue. See Report to Congress: Adequacy of Penalties for Fraud Offenses

Involving Elderly Victims (March 13, 1995). Although the Commission

found that the current guidelines generally provided adequate penalties

in these cases, it noted some inconsistency in the application of

Sec. 3A1.1 regarding whether this adjustment required proof that the

defendant had ``targeted the victim on account of the victim's

vulnerability.'' This amendment revises the Commentary of Sec. 3A1.1 to

clarify application with respect to this issue.

14. Amendment: Section 2K2.1(a)(1) is amended by deleting:

``defendant had at least two prior felony convictions of either a crime

of violence or a controlled substance offense, and the instant offense

involved a firearm listed in 26 U.S.C. 5845(a)'',

and inserting in lieu thereof:

``offense involved a firearm described in 26 U.S.C 5845(a) or 18

U.S.C. 921(a)(30), and the defendant had at least two prior felony

convictions of either a crime of violence or a controlled substance

offense''. [[Page 25084]]

Section 2K2.1(a)(3) is amended by deleting:

``defendant had one prior felony conviction of either a crime of

violence or a controlled substance offense, and the instant offense

involved a firearm listed in 26 U.S.C. 5845(a)'',

and inserting in lieu thereof:

``offense involved a firearm described in 26 U.S.C 5845(a) or 18

U.S.C. 921(a)(30), and the defendant had one prior conviction of either

a crime of violence or controlled substance offense''.

Section 2K2.1(a)(4)(B) is amended by deleting ``listed in 26 U.S.C.

5845(a)'' and inserting in lieu thereof ``described in 26 U.S.C 5845(a)

or 18 U.S.C. 921(a)(30)''.

Section 2K2.1(a)(5) is amended by deleting ``listed in 26 U.S.C.

5845(a)'' and inserting in lieu thereof ``described in 26 U.S.C 5845(a)

or 18 U.S.C. 921(a)(30)''.

Section 2K2.1(a)(8) is amended by deleting ``or (m)'' and by

inserting in lieu thereof ``(m),(s),(t), or (x)(1)''.

The Commentary to Sec. 2K2.1 captioned ``Statutory Provisions'' is

amended by inserting ``-(w), (x)(1)'' immediately following ``(r)'',

and by inserting ``, (h), (j)-(n)'' immediately following ``(g)''.

The Commentary to Sec. 2K2.1 captioned ``Application Notes'' is

amended by deleting Note 3 and inserting in lieu thereof:

``3. A `firearm described in 26 U.S.C. 5845(a)' includes: (i) A

shotgun having a barrel or barrels of less than 18 inches in length; a

weapon made from a shotgun if such weapon as modified has an overall

length of less than 26 inches or a barrel or barrels of less than 18

inches in length; a rifle having a barrel or barrels of less than 16

inches in length; or a weapon made from a rifle if such weapon as

modified has an overall length of less than 26 inches or a barrel or

barrels of less than 16 inches in length; (ii) a machinegun; (iii) a

silencer; (iv) a destructive device; and (v) certain unusual weapons

defined in 26 U.S.C. 5845(e) (that are not conventional, unaltered

handguns, rifles, or shotguns). For a more detailed definition, refer

to 26 U.S.C. 5845.

A `firearm described in 18 U.S.C. 921(a)(30)' (pertaining to

semiautomatic assault weapons) does not include a weapon exempted under

the provisions of 18 U.S.C. 922(v)(3).''.

The Commentary to Sec. 2K2.1 captioned ``Application Notes'' is

amended in Note 6 by deleting ``or (v)'' and inserting ``(v)'' in lieu

thereof; and by inserting ``; or (vi) is subject to a court order that

restrains such person from harassing, stalking, or threatening an

intimate partner of such person or child of such intimate partner or

person, or engaging in other conduct that would place an intimate

partner in reasonable fear of bodily injury to the partner or child as

defined in 18 U.S.C. 922(d)(8)'' immediately following ``States''.

The Commentary to Sec. 2K2.1 captioned ``Application Notes'' is

amended by deleting Note 12 and inserting in lieu thereof:

``12. If the only offense to which Sec. 2K2.1 applies is 18 U.S.C.

922 (i), (j), or (u), 18 U.S.C. 924 (j) or (k), or 26 U.S.C. 5861 (g)

or (h) (offenses involving a stolen firearm or ammunition) and the base

offense level is determined under subsection (a)(7), do not apply the

adjustment in subsection (b)(4) unless the offense involved a firearm

with an altered or obliterated serial number. This is because the base

offense level takes into account that the firearm or ammunition was

stolen.

Similarly, if the only offense to which Sec. 2K2.1 applies is 18

U.S.C. 922(k) (offenses involving an altered or obliterated serial

number) and the base offense level is determined under subsection

(a)(7), do not apply the adjustment in subsection (b)(4) unless the

offense involved a stolen firearm or ammunition. This is because the

base offense level takes into account that the firearm had an altered

or obliterated serial number.''.

Reason for Amendment: This is a five-part amendment. First, the

amendment revises Sec. 2K2.1 (Unlawful Receipt, Possession, or

Transportation of Firearms or Ammunition; Prohibited Transactions

Involving Firearms or Ammunition) to provide increased offense levels

for possession of a semiautomatic assault weapon that correspond to

those currently provided for possession of machineguns and other

firearms described in 26 U.S.C. 5845(a). Second, the amendment

addresses section 110201 of the Violent Crime Control Law Enforcement

Act of 1994 by providing an offense level of six for the misdemeanor

portion of 18 U.S.C. 922(x)(1) (involving sale or transfer of a handgun

or ammunition to a juvenile). For an offense under the felony portion

of 18 U.S.C. 922(x)(1) (involving the sale or transfer of a handgun or

handgun ammunition to a juvenile knowing or having reasonable cause to

believe that the handgun or ammunition was intended to be used in a

crime), the enhancement in subsection (b)(5) will provide a minimum

offense level of 18. Third, the amendment addresses section 110401 of

the Violent Crime Control and Law Enforcement Act of 1994 by adding to

the definition of a ``prohibited person'' in Sec. 2K2.1 a person under

the court order described in that crime bill section. Fourth, the

amendment provides an offense level of six for the misdemeanors set

forth in 18 U.S.C. 922 (s) and (t) (involving violations of the Brady

Act). Fifth, the amendment clarifies that Application Note 6 in

Sec. 2K2.1 applies only to cases in which the base offense level is

determined under Sec. 2K2.1(a)(7).

15. Amendment: The Commentary to Sec. 2L1.2 captioned ``Application

Notes'' is amended in Note 2 by deleting:

``a sentence at or near the maximum of the applicable guideline

range may be warranted'',

and inserting in lieu thereof:

``an upward departure may be warranted. See Sec. 4A1.3 (Adequacy of

Criminal History Category)''.

Reason for Amendment: This amendment revises Sec. 2L1.2 (Unlawfully

Entering or Remaining in the United States) to authorize the court to

consider an upward departure in the case of a defendant with repeated

prior instances of deportation not resulting in a criminal conviction.

16. Amendment: Section 2L2.1(b)(2) is amended by deleting ``sets

of'', and by deleting ``Sets of''.

Section 2L2.1(b) is amended by inserting the following additional

subdivision:

``(3) If the defendant knew, believed, or had reason to believe

that a passport or visa was to be used to facilitate the commission of

a felony offense, other than an offense involving violation of the

immigration laws, increase by 4 levels.''.

The Commentary to Sec. 2L2.1 captioned ``Application Notes'' is

amended in Note 2 by inserting ``of documents'' immediately before

``intended''; and by deleting ``documents as one set'' and inserting in

lieu thereof ``set as one document''.

The Commentary to Sec. 2L2.1 captioned ``Application Notes'' is

amended by inserting the following additional note:

``3. Subsection (b)(3) provides an enhancement if the defendant

knew, believed, or had reason to believe that a passport or visa was to

be used to facilitate the commission of a felony offense, other than an

offense involving violation of the immigration laws. If the defendant

knew, believed, or had reason to believe that the felony offense to be

committed was of an especially serious type, an upward departure may be

warranted.''.

Section 2L2.2 is amended by inserting the following additional

subsection:

``(c) Cross Reference

(1) If the defendant used a passport or visa in the commission or

attempted [[Page 25085]] commission of a felony offense, other than an

offense involving violation of the immigration laws, apply--

(A) Sec. 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to

that felony offense, if the resulting offense level is greater than

that determined above; or

(B) if death resulted, the most analogous offense guideline from

Chapter Two, Part A, Subpart 1 (Homicide), if the resulting offense

level is greater than that determined above.''.

Reason for Amendment: This is a three-part amendment. First, this

amendment provides an enhancement in Sec. 2L2.1 (Trafficking in a

Document Relating to Naturalization, Citizenship, or Legal Resident

Status, or a United States Passport; False Statement in Respect to the

Citizenship or Immigration Status of Another; Fraudulent Marriage to

Assist Alien to Evade Immigration Law) if the defendant trafficked in a

passport or visa knowing, believing, or having reason to believe that

the passport or visa was to be used to facilitate the commission of a

felony offense, other than an offense involving violation of the

immigration laws. Second, this amendment corrects a technical error in

Sec. 2L2.1(b)(2). Third, this amendment adds a cross reference to

Sec. 2L2.2 (Fraudulently Acquiring Documents Relating to

Naturalization, Citizenship, or Legal Resident Status for Own Use;

False Personation or Fraudulent Marriage by Alien to Evade Immigration

Law; Fraudulently Acquiring or Improperly Using a United States

Passport) that addresses the case of a defendant who uses a passport or

visa in the commission or attempted commission of a felony offense,

other than an offense involving violation of the immigration laws.

17. Amendment: Section 2P1.2(a)(2) is amended by inserting

``methamphetamine,'' immediately following ``PCP,''.

Section 2P1.2(a)(3) is amended by inserting ``methamphetamine,''

immediately following ``PCP,''.

Section 2P1.2 is amended by deleting subsection (c)(1) and

inserting in lieu thereof:

``(1) If the object of the offense was the distribution of a

controlled substance, apply the offense level from Sec. 2D1.1 (Unlawful

Manufacturing, Importing, Exporting, or Trafficking; Attempt or

Conspiracy). Provided, that if the defendant is convicted under 18

U.S.C. 1791(a)(1) and is punishable under 18 U.S.C. 1791(b)(1), and the

resulting offense level is less than level 26, increase to level 26.''.

Reason for Amendment: This amendment conforms the offense level for

methamphetamine offenses in a correctional or detention facility to

that of other controlled substance offenses committed in a correctional

or detention facility that have the same statutory maximum penalty.

This change reflects the increase in the maximum penalty for

methamphetamine offenses in section 90101 of the Violent Crime Control

and Law Enforcement Act of 1994. In addition, the amendment expands the

cross reference in subsection (c)(1) to cover distribution of all

controlled substances in a correctional or detention facility.

18. Amendment: Sections 2S1.1 and 2S1.2 are deleted and the

following inserted in lieu thereof:

``Sec. 2S1.1. Laundering of Monetary Instruments; Engaging in

Monetary Transactions in Property Derived from Unlawful Activity

(a) Base Offense Level (Apply the greatest):

(1) The offense level for the underlying offense from which the

funds were derived, if the defendant committed the underlying offense

(or otherwise would be accountable for the commission of the underlying

offense under Sec. 1B1.3 (Relevant Conduct)) and the offense level for

that offense can be determined; or

(2) 12 plus the number of offense levels from the table in

Sec. 2F1.1 (Fraud and Deceit) corresponding to the value of the funds,

if the defendant knew or believed that the funds were the proceeds of,

or were to be used to promote, an offense involving the manufacture,

importation, or distribution of controlled substances or listed

chemicals; a crime of violence; or an offense involving firearms or

explosives, national security, or international terrorism; or

(3) 8 plus the number of offense levels from the table in

Sec. 2F1.1 (Fraud and Deceit) corresponding to the value of the funds.

(b) Specific Offense Characteristics

(1) If the defendant knew or believed that (A) the financial or

monetary transactions, transfers, transportation, or transmissions were

designed in whole or in part to conceal or disguise the proceeds of

criminal conduct, or (B) the funds were to be used to promote further

criminal conduct, increase by 2 levels.

(2) If subsection (b)(1)(A) is applicable and the offense (A)

involved placement of funds into, or movement of funds through or from,

a company or financial institution outside the United States, or (B)

otherwise involved a sophisticated form of money laundering, increase

by 2 levels.

Commentary

Statutory Provisions: 18 U.S.C. 1956, 1957.

Application Notes

1. `Value of the funds' means the value of the funds or property

involved in the financial or monetary transactions, transportation,

transfers, or transmissions that the defendant knew or believed (A)

were criminally derived funds or property, or (B) were to be used to

promote criminal conduct.

When a financial or monetary transaction, transfer, transportation,

or transmission involves legitimately derived funds that have been

commingled with criminally derived funds, the value of the funds is the

amount of the criminally derived funds, not the total amount of the

commingled funds. For example, if the defendant deposited $50,000

derived from a bribe together with $25,000 of legitimately derived

funds, the value of the funds is $50,000, not $75,000.

Criminally derived funds are any funds that are derived from a

criminal offense; e.g., in a drug trafficking offense, the total

proceeds of the offense are criminally derived funds. In a case

involving fraud, however, the loss attributable to the offense

occasionally may be considerably less than the value of the criminally

derived funds (e.g., the defendant fraudulently sells stock for

$200,000 that is worth $120,000 and deposits the $200,000 in a bank;

the value of the criminally derived funds is $200,000, but the loss is

$80,000). If the defendant is able to establish that the loss, as

defined in Sec. 2F1.1 (Fraud and Deceit), was less than the value of

the funds (or property) involved in the financial or monetary

transactions, transfers, transportation, or transmissions, the loss

from the offense shall be used as the ``value of the funds.''

2. If the defendant is to be sentenced both on a count for an

offense from which the funds were derived and on a count under this

guideline, the counts will be grouped together under subsection (c) of

Sec. 3D1.2 (Groups of Closely-Related Counts).

3. Subsection (b)(1)(A) provides an increase for those cases that

involve efforts to make criminally derived funds appear to have a

legitimate source. This subsection will apply, for example, when the

defendant conducted a transaction through a straw party or a front

company, concealed a money-laundering transaction in a legitimate

business, or used an alias or otherwise provided false information to

disguise the true source or ownership of the funds. [[Page 25086]]

4. In order for subsection (b)(1)(B) to apply, the defendant must

have known or believed that the funds would be used to promote further

criminal conduct, i.e., criminal conduct beyond the underlying criminal

conduct from which the funds were derived.

5. Subsection (b)(2) provides an additional increase for those

money laundering cases that are more difficult to detect because

sophisticated steps were taken to conceal the origin of the money.

Subsection (b)(2)(B) will apply, for example, if the offense involved

the ``layering'' of transactions, i.e., the creation of two or more

levels of transactions that were intended to appear legitimate.

Background: The statutes covered by this guideline were enacted as

part of the Anti-Drug Abuse Act of 1986. These statutes cover a wide

range of conduct. For example, they apply to large-scale operations

that engage in international laundering of illegal drug proceeds. They

also apply to a defendant who deposits $11,000 of fraudulently obtained

funds in a bank. In order to achieve proportionality in sentencing,

this guideline generally starts from a base offense level equivalent to

that which would apply to the specified unlawful activity from which

the funds were derived. The specific offense characteristics provide

enhancements ``if the offense was designed to conceal or disguise the

proceeds of criminal conduct and if the offense involved sophisticated

money laundering.''.

Section 3D1.2(d) is amended in the second paragraph by deleting

``2S1.2,''.

Section 8C2.1(a) is amended by deleting ``2S1.2,''.

The Commentary to Sec. 8C2.4 captioned ``Application Notes'' is

amended in Note 5 by deleting ``Sec. 2S1.1 (Laundering of Monetary

Instruments); Sec. 2S1.2 (Engaging in Monetary Transactions in Property

Derived from Specified Unlawful Activity); and Sec. 2S1.3 (Structuring

Transactions to Evade Reporting Requirements; Failure to Report Cash or

Monetary Transactions; Failure to File Currency and Monetary Instrument

Report; Knowingly Filing False Reports)''; and by inserting ``or''

immediately before ``Sec. 2R1.1''.

Appendix A (Statutory Index) is amended in the line reference to 18

U.S.C. 1957 by deleting ``2S1.2'' and inserting in lieu thereof

``2S1.1''.

Reason for Amendment: This revises and consolidates Secs. 21/1 and

2S1.2 to simplify application and better assure that the offense levels

comport with the relative seriousness of the offense conduct. When the

Commission originally promulgated Secs. 2S1.1 and 2S1.2 to govern

sentencing for the money laundering and monetary transaction offenses

found at 18 U.S.C. 1956 and 1957, these statutes were relatively new

and, therefore, the Commission had little case experience upon which to

base the guidelines. Since then, courts have construed the elements of

these offenses broadly. As a result, the Commission has found that

Secs. 2S1.1 and 2S1.2 do not adequately distinguish the varying degrees

of offense conduct that are sentenced under these guidelines.

This amendment responds to concerns about the operation of these

guidelines by tying the base offense levels of the revised guideline

more closely to the underlying conduct that was the source of the

illegal proceeds. If the defendant committed the underlying offense and

the offense level can be determined, subsection (a)(1) provides a base

offense level equal to that for the underlying offense. In other

instances, the base offense level is keyed to the value of funds

involved. The amendment uses specific offense characteristics to assure

greater punishment when the defendant knew or believed that the

transactions were designed to conceal the criminal nature of the

proceeds or when the funds were to be used to promote further criminal

activity. An additional increase is provided under subsection (b)(2) if

sophisticated efforts at concealment were involved.

Subsections (a)(2) and (a)(3) provide ``fallback'' offense levels

that will apply primarily in cases in which the offense level for the

underlying conduct cannot be determined. Subsection (a)(3) provides an

offense level of eight plus the offense level from the table in

Sec. 2F1.1 (Fraud and Deceit). This offense level generally corresponds

to the offense level for fraud and theft offenses with more than

minimal planning. Subsection (a)(2) provides an offense level of 12

plus the offense level from the table in Sec. 2F1.1 for cases in which

the defendant knew or believed the funds were derived from, or were to

be used to further, certain serious offenses (e.g., drug trafficking

offenses). This approach is consistent with the current guideline

structure, which generally treats such offenses as at least four levels

more serious than typical economic offenses (e.g., fraud).

19. Amendment: Chapter Three, Part A, is amended by inserting the

following additional section:

``Sec. 3A1.4. International Terrorism

(a) If the offense is a felony that involved, or was intended to

promote, international terrorism, increase by 12 levels; but if the

resulting offense level is less than level 32, increase to level 32.

(b) In each such case, the defendant's criminal history category

from Chapter Four (Criminal History and Criminal Livelihood) shall be

Category VI.

Commentary

Application Notes

1. Subsection (a) increases the offense level if the offense

involved, or was intended to promote, international terrorism.

`International terrorism' is defined at 18 U.S.C. 2331.

2. Under subsection (b), if the defendant's criminal history

category as determined under Chapter Four (Criminal History and

Criminal Livelihood) is less than Category VI, it shall be increased to

Category VI.''.

Section 5K2.15 is deleted.

Reason for Amendment: Section 120004 of the Violent Crime Control

and Law Enforcement Act of 1994 directs the Commission to provide an

appropriate enhancement for any felony that involves or is intended to

promote international terrorism. The amendment addresses this directive

by adding a Chapter Three enhancement at Sec. 3A1.4 (Terrorism) in

place of the current upward departure provision at Sec. 5K2.15

(Terrorism).

20. Amendment: Section 3B1.4 is deleted and the following inserted

in lieu thereof:

``Sec. 3B1.4. Using a Minor To Commit a Crime

If the defendant used or attempted to use a person less than

eighteen years of age to commit the offense or assist in avoiding

detection of, or apprehension for, the offense, increase by 2 levels.

Commentary

Application Note

1. `Used or attempted to use' includes directing, commanding,

encouraging, intimidating, counseling, training, processing,

recruiting, or soliciting.

2. Do not apply this adjustment if the Chapter Two offense

guideline incorporates this factor.

3. If the defendant used or attempted to use more than one person

less than eighteen years of age, an upward departure may be

warranted.''.

Reason for Amendment: This amendment implements the directive in

Section 140008 of the Violent Crime Control and Law Enforcement Act of

1994 (pertaining to the use of a minor in the commission of an offense)

in a slightly broader form.

21. Amendment: The Commentary to Sec. 4B1.1 captioned

``Background'' is amended by deleting the text and inserting in lieu

thereof:

``Section 994(h) of title 28, United States Code, mandates that the

[[Page 25087]] Commission assure that certain `career' offenders

receive a sentence of imprisonment `at or near the maximum term

authorized.' Section 4B1.1 implements this directive, with the

definition of a career offender tracking in large part the criteria set

forth in 28 U.S.C. 994(h). However, in accord with its general

guideline promulgation authority under 28 U.S.C. 994(a)-(f), and its

amendment authority under 28 U.S.C. 994 (o) and (p), the Commission has

modified this definition in several respects to focus more precisely on

the class of recidivist offenders for whom a lengthy term of

imprisonment is appropriate and avoid `unwarranted sentencing

disparities among defendants with similar records who have been found

guilty of similar criminal conduct * * * ' 28 U.S.C. 991(b)(1)(B). The

Commission's refinement of this definition over time is consistent with

Congress' choice of a directive to the Commission rather than a

mandatory minimum sentencing statute (`The [Senate Judiciary] Committee

believes that such a directive to the Commission will be more

effective; the guidelines development process can assure consistent and

rational implementation for the Committee's view that substantial

prison terms should be imposed on repeat violent offenders and repeat

drug traffickers.' S. Rep. No. 225, 98th Cong., 1st Sess. 175 (1983)).

The legislative history of this provision suggests that the phrase

`maximum term authorized' should be construed as the maximum term

authorized by statute. See S. Rep. No. 225, 98th Cong., 1st Sess. 175

(1983), 128 Cong. Rec. 26, 511-12 (1982) (text of `Career Criminals'

amendment by Senator Kennedy) id. at 26, 515 (brief summary of

amendment) id. at 26, 517-18 (statement of Senator Kennedy).''.

Application Note 1 of the Commentary to Sec. 4B1.2 is repromulgated

without change.

Reason for Amendment: This amendment inserts additional background

commentary explaining the Commission's rationale and authority for

Sec. 4B1.1 (Career Offender). The amendment responds to a decision by

the United States Court of Appeals for the District of Columbia Circuit

in United States v. Price, 990 F.2d 1367 (D.C. Cir. 1993). In Price,

the court invalidated application of the career offender guideline to a

defendant convicted of a drug conspiracy because 28 U.S.C. 994(h),

which the Commission cites as the mandating authority for the career

offender guideline, does not expressly refer to inchoate offenses. The

court indicated that it did not foreclose Commission authority to

include conspiracy offenses under the career offender guideline by

drawing upon its broader guideline promulgation authority in 28 U.S.C.

994(a). See also United States v. Mendoza-Figueroa, 28 F.3d 766 (8th

Cir. 1994), vacated (Sept. 2, 1994); United States v. Bellazerius, 24

F.3d 698 (5th Cir.), cert. denied, 115 S. Ct. 375 (1994). Other

circuits have rejected the Price analysis and upheld the Commission's

definition of ``controlled substance offense.'' For example, the Ninth

Circuit considered the legislative history to 994(h) and determined

that the Senate Report clearly indicated that 994(h) was not the sole

enabling statute for the career offender guidelines. United States v.

Heim, 15 F.3d 830 (9th Cir.), cert. denied, 115 S. Ct. 55 (1994). See

also United States v. Hightower, 25 F.3d 182 (3d Cir.), cert. denied,

115 S. Ct. 370 (1994); United States v. Damerville, 27 F.3d 254 (7th

Cir.), cert. denied, 115 S. Ct. 445 (1994); United States v. Allen, 24

F.3d 1180 (10th Cir.), cert. denied, 115 S. Ct. 493 (1994); United

States v. Baker, 16 F.3d 854 (8th Cir. 1994); United States v. Linnear,

40 F.3d 215 (7th Cir. 1994); United States v. Kennedy, 32 F.3d 876 (4th

Cir. 1994), cert. denied, 115 S. Ct. 939 (1995); United States v.

Piper, 35 F.3d 611 (1st Cir. 1994), cert. denied, 115 S. Ct. 1118

(1995).

22. Amendment: The Commentary to Sec. 5D1.1 captioned ``Application

Notes'' is amended in Note 1 by deleting:

``While there may be cases within this category that do not require

post release supervision, these cases are the exception and may be

handled by a departure from this guideline.'',

and inserting in lieu thereof:

``The court may depart from this guideline and not impose a term of

supervised release if it determines that supervised release is neither

required by statute nor required for any of the following reasons: (1)

To protect the public welfare; (2) to enforce a financial condition;

(3) to provide drug or alcohol treatment or testing; (4) to assist the

reintegration of the defendant into the community; or (5) to accomplish

any other sentencing purpose.''.

Section 5D1.2 is amended by deleting subsection (a); and by

redesignating subsection (b) as subsection (a).

Section 5D1.2(a) (formerly Sec. 5D1.2(b)) is amended by deleting

``Otherwise, when'' and inserting in lieu thereof ``If''.

Section 5D1.2 is amended by inserting the following additional

subsection:

``(b) Provided, that the term of supervised release imposed shall

in no event be less than any statutorily required term of supervised

release.''.

Reason for Amendment: This amendment sets forth with greater

specificity the circumstances under which the court may depart from the

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

and impose no term of supervised release. In addition, the amendment

deletes, as unnecessary, the requirement in Sec. 5D1.2 (Term of

Supervised Release) of a term of supervised release of three to five

years whenever a statute requires any term of supervised release.

Instead, the amendment provides that, in the case of a statute

requiring a term of supervised release, the length of the term of

supervised release shall be determined by the class of felony of which

the defendant was convicted, but shall not be less than any term

required by statute.

23. Amendment: Section 5E1.1(a)(2) is amended by deleting

``Sec. 1472 (h), (i), (j), or (n)'' and inserting in lieu thereof

``Sec. 46312, Sec. 46502, or Sec. 46504''.

The Commentary to Sec. 5E1.1 captioned ``Background'' is amended in

the first paragraph by deleting ``and of designated subdivisions of 49

U.S.C. 1472'' and inserting in lieu thereof ``or 49 U.S.C. 46312,

46502, or 46504''.

The Commentary to Sec. 5E1.1 captioned ``Background'' is amended in

the second paragraph by deleting ``Sec. 1472 (h), (i), (j), or (n)''

wherever it appears and inserting in lieu thereof in each instance

``Sec. 46312, Sec. 46502, or Sec. 46504''.

The Commentary to Sec. 5E1.1 is amended by inserting the following

immediately before ``Background'':

``Application Note

1. In the case of a conviction under certain statutes, additional

requirements regarding restitution apply. See 18 U.S.C. 2248 and 2259

(applying to convictions under 18 U.S.C. 2241-2258 for sexual-abuse

offenses and sexual exploitation of minors); 18 U.S.C. 2327 (applying

to convictions under 18 U.S.C. 1028-1029, 1341-1344 for telemarketing-

fraud offenses); 18 U.S.C. 2264 (applying to convictions under 18

U.S.C. 2261-2262 for domestic-violence offenses). To the extent that

any of the above-noted statutory provisions conflicts with the

provisions of this guideline, the applicable statutory provision shall

control.''.

Reason for Amendment: Section 40113 of the Violent Crime Control

and Law Enforcement Act of 1994 requires ``mandatory'' restitution for

offenses involving sexual abuse and sexual exploitation of children

under 18 U.S.C. 2241-2258. Sections 250002 and 40221 add similar

``mandatory'' restitution provisions for offenses involving

telemarketing fraud (18 U.S.C. 2327) [[Page 25088]] and domestic

violence (18 U.S.C. 2264). These provisions also require that

compliance with a restitution order be a condition of probation or

supervised release, have broader definitions of loss than 18 U.S.C.

3663, and apply ``notwithstanding section 3663, and in addition to any

civil or criminal penalty authorized by law.'' This amendment adds

commentary to Sec. 5E1.1 (Restitution) to alert the courts to the new

statutory provisions.

In addition, this amendment conforms Sec. 5E1.1 to the

redesignation of 49 U.S.C. 1472 (h), (i), (j), and (n) as 49 U.S.C.

46312, 46502 (a), (b), and 46504.

24. Amendment: Chapter Five, Part K, Subpart Two is amended by

inserting the following additional section:

``Sec. 5K2.17. High-Capacity, Semiautomatic Firearms (Policy

Statement)

If the defendant possessed a high-capacity, semiautomatic firearm

in connection with a crime of violence or controlled substance offense,

an upward departure may be warranted. A `high-capacity, semiautomatic

firearm' means a semiautomatic firearm that has a magazine capacity of

more than ten cartridges. The extent of any increase should depend upon

the degree to which the nature of the weapon increased the likelihood

of death or injury in the circumstances of the particular case.

Commentary

Application Note

1. `Crime of violence' and `controlled substance offense' are

defined in Sec. 4B1.2 (Definitions of Terms Used in Section 4B1.1).''.

Reason for Amendment: This amendment addresses the directive in

section 110501 of the Violent Crime Control and Law Enforcement Act of

1994 to provide an ``appropriate'' enhancement for a crime of violence

or drug trafficking crime if a semiautomatic firearm is involved.

According to data reviewed by the Commission, semiautomatic

firearms are used in 50-70 percent of offenses involving a firearm.

Thus, offenses involving a semiautomatic firearm represent the typical

or ``heartland'' case under the guidelines. Consequently, the firearms

enhancements in the guidelines for crimes of violence and drug

trafficking can be considered to take into account the fact that

firearms involved in these offenses typically are semiautomatic.

Moreover, the ``firepower'' or ``dangerousness'' of semiautomatic

firearms, compared to other types of firearms, varies substantially

with caliber and magazine capacity. For example, a .25 caliber, six-

shot semiautomatic pistol is not considered as having as much firepower

as a .38 caliber, six-shot revolver or a .357 magnum, six-shot

revolver. A nine-millimeter semiautomatic pistol fires a somewhat more

powerful cartridge than a .38 caliber revolver and a somewhat less

powerful cartridge than a .357 magnum revolver. But some nine-

millimeter semiautomatic pistols hold from 14-18 cartridges, compared

to six cartridges for a revolver. A high magazine capacity, nine-

millimeter semiautomatic pistol can be said to have significantly more

firepower than a revolver because it can fire a significantly larger

number of shots without reloading.

If harm actually results (e.g., death or bodily injury), the

guidelines generally take that harm into account directly.

Consequently, in considering any distinction between semiautomatic

firearms and other firearms, the issue is whether there is any

significant difference in the risk of harm. The difference in the risk

of harm also varies widely with the circumstances of the offense. For

example, in a robbery at very close range, the difference in the

likelihood of death or bodily injury between a revolver and

semiautomatic pistol would seem to be small. In contrast, in a drive-by

shooting the greater firepower of a semiautomatic weapon likely would

have a more significant effect on the likelihood of death or injury.

After considering the above factors, the Commission determined that

the most appropriate approach at this time was to provide a specific

basis for an upward departure when a high-capacity semiautomatic

firearm is possessed in connection with a crime of violence or drug

trafficking offense, thereby allowing the courts the flexibility to

take this factor into account as appropriate in the circumstances of

the particular case. Additionally, the Commission amended Sec. 2D1.1

(Unlawful Manufacturing, Importing, Exporting, or Trafficking; Attempt

or Conspiracy) to provide greater enhancement when a firearm (including

a semiautomatic firearm) is involved.

25. Amendment: Chapter Five, Part K, Subpart Two is amended by

inserting the following additional section:

``Sec. 5K2.18. Violent Street Gangs (Policy Statement)

If the defendant is subject to an enhanced sentence under 18 U.S.C.

521 (pertaining to criminal street gangs), an upward departure may be

warranted. The purpose of this departure provision is to enhance the

sentences of defendants who participate in groups, clubs,

organizations, or associations that use violence to further their ends.

It is to be noted that there may be cases in which 18 U.S.C. 521

applies, but no violence is established. In such cases, it is expected

that the guidelines will account adequately for the conduct and,

consequently, this departure provision would not apply.''.

Reason for Amendment: This amendment expressly provides a basis for

an upward departure in the case of a defendant subject to a statutorily

enhanced maximum penalty under 18 U.S.C. 521 (pertaining to criminal

street gangs), as enacted by section 150000 of the Violent Crime and

Law Enforcement Act of 1994.

26. Amendment: Section 7B1.3(g)(2) is amended by deleting ``the

defendant may, to the extent permitted by law, be ordered to recommence

supervised release upon release from imprisonment'', and inserting in

lieu thereof:

``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)''.

The Commentary to Sec. 7B1.3 captioned ``Application Notes'' is

amended in Note 2 by deleting:

``. This statute, however, neither expressly authorizes nor

precludes a court from ordering that a term of supervised release

recommence after revocation. Under Sec. 7B1.3(g)(2), the court may

order, to the extent permitted by law, the recommencement of a

supervised release term following revocation'',

and inserting in lieu thereof:

``, (g)-(i). Under 18 U.S.C. 3583(h) (effective September 13,

1994), the court, in the case of revocation of supervised release and

imposition of less than the maximum imposable term of imprisonment, may

order an additional period of supervised release to follow

imprisonment''.

The Commentary to Sec. 7B1.3 captioned ``Application Notes is

amended by deleting Note 3, and by renumbering the remaining notes

accordingly.

The Commentary to Sec. 7B1.4 captioned ``Application Notes'' is

amended by deleting Notes 5 and 6 and inserting in lieu thereof:

``5. Upon a finding that a defendant violated a condition of

probation or [[Page 25089]] 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

probation or supervised release and impose a sentence that includes a

term of imprisonment. 18 U.S.C. 3565(b), 3583(g).

6. In the case of a defendant who fails a drug test, the court

shall consider whether the availability of appropriate substance abuse

programs, or a defendant's current or past participation in such

programs, warrants an exception from the requirement of mandatory

revocation and imprisonment under 18 U.S.C. 3565(b) and 3583(g). 18

U.S.C. 3563(a), 3583(d).''.

Reason for Amendment: Section 110505 of the Violent Crime Control

and Law Enforcement Act of 1994 amends 18 U.S.C. 3583(e)(3) by

specifying that a defendant whose supervised release term is revoked

may not be required to serve more than five years in prison if the

offense that resulted in the term of supervised release is a Class A

felony. The provision also amends section 3583(g) by eliminating the

mandatory re-imprisonment period of at least one-third of the term of

supervised release if the defendant possesses a controlled substance or

a firearm, or refuses to participate in drug testing. Finally, the

provision expressly authorizes the court to order an additional,

limited period of supervision following revocation of supervised

release and re-imprisonment.

Section 20414 of the Violent Crime Control and Law Enforcement Act

of 1994 makes mandatory a condition of probation requiring that the

defendant refrain from any unlawful use of a controlled substance. 18

U.S.C. 3563(a)(4). The section also establishes a condition that the

defendant, with certain exceptions, submit to periodic drug tests. The

existing mandatory condition of probation requiring the defendant not

to possess a controlled substance remains unchanged. 18 U.S.C.

3563(a)(3). Similar requirements are made with respect to conditions of

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

Section 110506 of the Violent Crime Control and Law Enforcement Act

of 1994 mandates revocation of probation and imposition of a term of

imprisonment if the defendant violates probation by possessing a

controlled substance or a firearm, or by refusing to comply with drug

testing. 18 U.S.C. 3565(b). It does not require revocation in the case

of use of a controlled substance (although use presumptively may

establish possession). No minimum term of imprisonment is required

other than a sentence that includes a ``term of imprisonment''

consistent with the sentencing guidelines and revocation policy

statements. Similar requirements are set forth in 18 U.S.C. 3583(g)

with respect to conditions of supervised release.

Section 20414 permits ``an exception in accordance with United

States Sentencing Commission guidelines'' from the mandatory revocation

provisions of section 3565(b), ``when considering any action against a

defendant who fails a drug test administered in accordance with

[section 3563(a)(4)].'' The exception from the mandatory revocation

provisions appears limited to a defendant who fails the test and does

not appear to apply to a defendant who refuses to take the test.

This amendment conforms Secs. 7B1.3 (Revocation of Probation or

Supervised Release) and 7B1.4 (Term of Imprisonment) to these revised

statutory provisions.

27. Amendment: Appendix A is amended by inserting the following at

the appropriate place by title and section:

------------------------------------------------------------------------

Title Section

------------------------------------------------------------------------

``7 U.S.C. 2018(c).......................... 2N2.1''

``7 U.S.C. 6810............................. 2N2.1''

``18 U.S.C. 36.............................. 2D1.1.''

``18 U.S.C. 37.............................. 2A1.1, 2A1.2, 2A1.3,

2A1.4, 2A2.1, 2A2.2,

2A2.3, 2A3.1, 2A3.4,

2A4.1, 2A5.1, 2A5.2,

2B1.3, 2B3.1, 2K1.4''

``18 U.S.C. 113(a)(1)....................... 2A2.1''

``18 U.S.C. 113(a)(2)....................... 2A2.2''

``18 U.S.C. 113(a)(3)....................... 2A2.2''

``18 U.S.C. 113(a)(5) (Class A misdemeanor 2A2.3''

provisions only).

``18 U.S.C. 113(a)(6)....................... 2A2.2''

``18 U.S.C. 113(a)(7)....................... 2A2.3''

``18 U.S.C. 470............................. 2B5.1, 2F1.1''

``18 U.S.C. 668............................. 2B1.1''

``18 U.S.C. 844(m).......................... 2K1.3''

``18 U.S.C. 880............................. 2B1.1''

``18 U.S.C. 922(s)-(w)...................... 2K2.1''

``18 U.S.C. 922(x)(1)....................... 2K2.1''

``18 U.S.C. 924(i).......................... 2A1.1, 2A1.2''

``18 U.S.C. 924(j)-(n)...................... 2K2.1''

``18 U.S.C. 1033............................ 2B1.1, 2F1.1, 2J1.2''

``18 U.S.C. 1118............................ 2A1.1, 2A1.2''

``18 U.S.C. 1119............................ 2A1.1, 2A1.2, 2A1.3,

2A1.4, 2A2.1''

``18 U.S.C. 1120............................ 2A1.1, 2A1.2, 2A1.3,

2A1.4''

``18 U.S.C. 1121............................ 2A1.1, 2A1.2''

``18 U.S.C. 1204............................ 2J1.2''

``18 U.S.C. 1716D........................... 2Q2.1''

``18 U.S.C. 2114(b)......................... 2B1.1''

``18 U.S.C. 2258(a),(b)..................... 2G2.1, 2G2.2''

``18 U.S.C. 2261............................ 2A1.1, 2A1.2, 2A2.1,

2A2.2, 2A2.3, 2A3.1,

2A3.4, 2A4.1, 2B3.1,

2B3.2, 2K1.4''

``18 U.S.C. 2262............................ 2A1.1, 2A1.2, 2A2.1,

2A2.2, 2A2.3, 2A3.1,

2A3.4, 2A4.1, 2B3.1,

2B3.2, 2K1.4''

``18 U.S.C. 2280............................ 2A1.1, 2A1.2, 2A1.3,

2A1.4, 2A2.1, 2A2.2,

2A2.3, 2A4.1, 2B1.3,

2B3.1, 2B3.2, 2K1.4''

``18 U.S.C. 2281............................ 2A1.1, 2A1.2, 2A1.3,

2A1.4, 2A2.1, 2A2.2,

2A2.3, 2A4.1, 2B1.3,

2B3.1, 2B3.2, 2K1.4''

``18 U.S.C. 2332a........................... 2A1.1, 2A1.2, 2A1.3,

2A1.4, 2A1.5, 2A2.1,

2A2.2, 2B1.3, 2K1.4''

``18 U.S.C. 2423(b)......................... 2A3.1, 2A3.2, 2A3.3''

``21 U.S.C. 843(a)(9)....................... 2D3.1''

``21 U.S.C. 843(c).......................... 2D3.1''

``21 U.S.C. 849............................. 2D1.2''

``21 U.S.C. 960(d)(3), (4).................. 2D1.11''

``21 U.S.C. 960(d)(5)....................... 2D1.13''

``21 U.S.C. 960(d)(6)....................... 2D3.1''

``42 U.S.C. 1307(b)......................... 2F1.1''

------------------------------------------------------------------------

In the line referenced to 18 U.S.C. 113(a) by inserting ``(for

offenses committed prior to September 13, 1994)'' immediately following

``2A2.1'';

In the line referenced to 18 U.S.C. 113(b) by inserting ``(for

offenses committed prior to September 13, 1994)'' immediately following

``2A2.2'';

In the line referenced to 18 U.S.C. 113(c) by inserting ``(for

offenses committed prior to September 13, 1994)'' immediately following

``2A2.2'';

In the line referenced to 18 U.S.C. 113(f) by inserting ``(for

offenses committed prior to September 13, 1994)'' immediately following

``2A2.2'';

In the line referenced to 18 U.S.C. 371 by inserting ``2K2.1 (if a

conspiracy to violate 18 U.S.C. 924(c)),'' immediately before

``2X1.1'';

In the line referenced to 18 U.S.C. 1153 by inserting ``2A2.3,''

immediately before ``2A3.1'';

In the line referenced to 18 U.S.C. 2114 by deleting ``2114'' and

inserting in lieu thereof ``2114(a)'';

and in the line referenced to 18 U.S.C. 2423 by deleting ``2423'' and

by inserting in lieu thereof ``2423(a)''.

Appendix A is amended by deleting:

``49 U.S.C. 1472(c)......................................... 2A5.2

49 U.S.C. 1472(h)(2)........................................ 2Q1.2

49 U.S.C. 1472(i)(1)........................................ 2A5.1

49 U.S.C. 1472(j)........................................... 2A5.2

49 U.S.C. 1472(k)(1)........................................ 2A5.3

49 U.S.C. 1472(l)........................................... 2K1.5

49 U.S.C. 1472(n)(1)........................................ 2A5.1''

and inserting in lieu thereof:

``49 U.S.C. 46308........................................... 2A5.2

49 U.S.C. 46312............................................. 2Q1.2

[[Page 25090]]

49 U.S.C. 46502(a), (b)..................................... 2A5.1

49 U.S.C. 46504............................................. 2A5.2

49 U.S.C. 46506............................................. 2A5.3

49 U.S.C. 46505............................................. 2K1.5

49 U.S.C. 46502(b).......................................... 2A5.1''

Section 2D3.1 is amended in the title by deleting: ``Illegal Use of

Registration Number to Manufacture, Distribute, Acquire, or Dispense a

Controlled Substance'' and inserting in lieu thereof ``Regulatory

Offenses Involving Registration Numbers; Unlawful Advertising Relating

to Schedule I Substances''.

Section 2D3.2 is amended by inserting ``or Listed Chemicals''

immediately after ``Controlled Substances''.

Section 2Q2.1 is amended by deleting the title and inserting in

lieu thereof ``Offenses Involving Fish, Wildlife, and Plants''.

Reason for Amendment: This amendment makes Appendix A (Statutory

Index) more comprehensive. References are added for new offenses

enacted by the Violent Crime Control and Law Enforcement Act of 1994,

Public Law 103-322, 108 Stat. 1796; the Fresh Cut Flowers and Fresh Cut

Greens Promotion and Information Act of 1993, Public Law 103-190, 107

Stat. 2266; the Food Stamp Program Improvements Act of 1994, Public Law

103-225, 108 Stat. 106; the Social Security Independence and Program

Improvements Act of 1994, Public Law 103-296 108 Stat. 1464; the

Domestic Chemical Diversion Act of 1993, Public Law 103-200, 107 Stat.

2333; and the International Parental Kidnapping Crime Act of 1993,

Public Law 103-173, 107 Stat. 1998. In addition, the amendment conforms

Appendix A to revisions in existing statutes. Finally, the amendment

revises the titles of several offense guidelines to better reflect

their scope.

[FR Doc. 95-11371 Filed 5-9-95; 8:45 am]

BILLING CODE 2210-40-P