Sentencing Guidelines for United States Courts

SUMMARY: The Commission is considering promulgating certain amendments

to the sentencing guidelines, policy statements, and commentary. The

proposed amendments and a synopsis of issues to be addressed are set

forth below. The Commission may report amendments to the Congress on or

before May 1, 1995. Comment is sought on all proposals, alternative

proposals, and any other aspect of the sentencing guidelines, policy

statements, and commentary.

DATES: The Commission has scheduled a public hearing on these proposed

amendments for March 14, 1995, at 9:30 a.m. in the Thurgood Marshall

Federal Judiciary Building, One Columbus Circle, NE., Washington, DC

20002-8002.

Persons interested in attending the public hearing should contact

the Commission at a later date to learn the room in which the hearing

will take place. Anyone wishing to testify at the public hearing should

notify Michael Courlander, Public Information Specialist, at (202) 273-

4590 by February 28, 1995.

Public comment, including written testimony for the hearing, should

be received by the Commission no later than March 7, 1995, to be

considered by the Commission in the promulgation of amendments due to

the Congress by May 1, 1995.

ADDRESSES: Public comment should be sent to: United States Sentencing

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

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

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Information

Specialist, Telephone: (202) 273-4590.

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is

an independent agency in the judicial branch of the United States

Government. The Commission is empowered under 28 U.S.C. Sec. 994(a) to

promulgate sentencing guidelines and policy statements for federal

courts. The statute further directs the Commission to review and revise

periodically 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. Sec. 994(o), (p).

Ordinarily, the Administrative Procedure Act rule-making

requirements are inapplicable to judicial agencies; however, 28 U.S.C.

Sec. 994(x) makes the Administrative Procedure Act rule-making

provisions of 5 U.S.C. Sec. 553 applicable to the promulgation of

sentencing guidelines by the Commission.

The proposed amendments are presented in one of three formats.

First, a number of the amendments are proposed as specific revisions of

a guideline, policy statement, or commentary. Second, for some

amendments, the Commission has published alternative methods of

addressing an issue, shown in brackets. Commentators are encouraged to

state their preference among listed alternatives or to suggest a new

alternative. Third, the Commission has highlighted certain issues for

comment and invites suggestions for specific amendment language.

Section 1B1.10 of the United States Sentencing Commission

Guidelines Manual sets forth the Commission's policy statement

regarding retroactivity of amended guideline ranges. Comment is

requested as to whether any of the proposed amendments should be made

retroactive under this policy statement.

Although the amendments below are specifically proposed for public

comment and possible submission to the Congress by May 1, 1995, the

Commission emphasizes that it welcomes comment on any aspect of the

sentencing guidelines, policy statements, and commentary, whether or

not the subject of a proposed amendment.

Publication of a proposed amendment or issue for comment signifies

only that at least three Commissioners consider the amendment or issue

worthy of comment by interested groups and individuals. Publication

should not be regarded as an indication that the Commission or any

individual Commissioner has formed a view on the merits of the proposed

amendment or issue.

Authority: 28 U.S.C. Sec. 994(a), (o), (p), (x).

Phyllis J. Newton,

Staff Director.

I. Amendments Relating to Congressional Directives to the Commission

and Other Statutory Changes

Chapter One, Part B (General Application Principles)

1. Issue for Comment: Section 40503 of the Violent Crime Control

and Law Enforcement Act of 1994 directs the Commission to conduct a

study and consider appropriate guideline amendments relating to

offenses in which an HIV-infected individual engages in sexual activity

with knowledge of his or her HIV infection status and with the intent

through such sexual activity to expose another to HIV. A report is to

be submitted to Congress by March 13, 1995. The Commission invites

comment on any aspect of this issue. In addition, the Commission

invites comment on whether the infectious bodily fluid of a person

should be defined expressly as a ``dangerous weapon.'' The Commission

further invites comment on whether the definitions relating to serious

bodily injury and permanent or life-threatening bodily injury should be

amended to expressly include infection by HIV-infected bodily fluid.

The Commission also invites comment on whether basing enhanced

penalties for willful sexual exposure to HIV will have any implications

for HIV testing behavior.

Chapter Two, Part A (Offenses Against the Person)

2. Issue for Comment: Section 170201 of the Violent Crime Control

and Law Enforcement Act of 1994 establishes a new offense with a five-

year statutory maximum for an assault against a person under the age of

16 years that results in substantial bodily injury (18 U.S.C.

Sec. 113(a)(7)). Substantial bodily injury is defined as ``bodily

injury that involves a temporary but substantial disfigurement or a

temporary but substantial loss or impairment of the function of any

bodily member, organ, or mental facility.'' The Commission invites

comment as to whether Sec. 2A2.3 provides an adequate penalty for a

violation of 18 U.S.C. Sec. 113(a)(7). If not, how and to what extent

should Sec. 2A2.3 be amended? For example, should the Commission amend

Sec. 2A2.3(a)(1) by deleting ``physical contact'' and inserting

``bodily injury,'' thus providing a base offense level of six for

bodily injury or weapon possession with a threat of use and a base

offense level of three for other cases? Should the

[[Page 2431]] Commission instead add a specific offense characteristic

for bodily injury or a specific offense characteristic if the defendant

is convicted of a violation of 18 U.S.C. Sec. 113(a)(7)? Should

Sec. 2A2.3 be amended by providing a cross reference to Sec. 2A2.2

(Aggravated Assault) to account for cases in which the underlying

conduct involves serious bodily injury or use of a weapon with intent

to cause bodily harm although the offense of conviction does not

qualify as aggravated assault?

3. Issue for Comment: Section 320102 of the Violent Crime Control

and Law Enforcement Act of 1994 increases the maximum imprisonment

penalty for involuntary manslaughter from three years to six years. The

proposed amendment responds to the Commission's recommendation that

Congress raise the penalty in order to achieve parity with the

sentencing practices of the majority of the states and to allow the

guideline sentence for this offense to operate without undue

constraint. Guideline 2A1.4 (Involuntary Manslaughter) applies a base

offense level of level 10 (if the conduct was criminally negligent) or

level 14 (if the conduct was reckless) to offenses under 18 U.S.C.

Sec. 1112. These offense levels may have reflected, in part, the

previous relatively low maximum term of imprisonment authorized for

this offense. The Commission invites comment on whether the base

offense levels under Sec. 2A1.4 (Involuntary Manslaughter) provide

adequate punishment and, if not, to what extent they should be

increased.

4. Synopsis of Proposed Amendment: The International Parental

Kidnapping Crime Act of 1993 (Public Law 103-73, codified at 18 U.S.C.

Sec. 1204) makes it unlawful to remove a child from the United States

with intent to obstruct the lawful exercise of parental rights. The

statutorily authorized maximum term of imprisonment for this offense is

three years. In contrast, other kidnapping offenses (e.g., 18 U.S.C.

Sec. 1201) have a statutory maximum sentence of life or death. Two

options are shown. Option 1 references this statute to Sec. 2A4.1

(Kidnapping, Abduction, Unlawful Restraint) with a separate base

offense level for a conviction under this statute. Option 2 references

this statute to Sec. 2J1.2 (Obstruction of Justice) because the

underlying conduct involves interference with a court's child-custody

order.

Proposed Amendment: [Option 1: Section Sec. 2A4.1(a) is amended by

deleting ``24'' and inserting in lieu thereof:

``(1) 24, except as provided below;

(2) 12, if the defendant was convicted under 18 U.S.C.

Sec. 1204.'';

and by inserting the following additional subsection:

``(d) Special Instruction

(1) If the base offense level is determined under subsection

(a)(2), do not apply subsection (b)(4).''.

Appendix A (Statutory Index) is amended by inserting the following

at the appropriate place by title and section:

``18 U.S.C. Sec. 1204 2A4.1''.]

[Option 2: Appendix A (Statutory Index) is amended by inserting the

following at the appropriate place by title and section:

``18 U.S.C. Sec. 1204 2J1.2''.]

5. Issue for Comment: Section 40112 of the Violent Crime Control

and Law Enforcement Act of 1994 directs the Commission to conduct a

study and consider appropriate amendments to Secs. 2A3.1 (Aggravated

Sexual Abuse) and 2A3.2 (Sexual Abuse) to address four concerns: (1)

enhancing the sentence if more than one defendant is involved in the

offense; (2) reducing unwarranted disparity between defendants who are

known by the victim and those who are unknown by the victim; (3) making

federal penalties commensurate with state penalties; and (4)

considering the general problem of recidivism, severity of the offense,

and devastating effects on survivors. The provision also requires the

preparation of a report to Congress analyzing federal rape sentences

and obtaining comment from independent experts on: (1) comparative

federal sentences between assailants who were known vs. unknown to

their victims; (2) comparative federal sentences with those of states;

and (3) the effect of rape sentences on Native American and U.S.

military populations relative to the impact of sentences for other

federal offenses on these populations. This report is to be submitted

to Congress by March 13, 1995.

The Commission invites comment on any aspect of this directive or

any amendment to the guidelines appropriate to address this directive.

Specifically, comment is requested on whether Sec. 2A3.1 (Criminal

Sexual Abuse) should be amended to include an enhancement for more than

one assailant. If such a factor is added, comment is requested as to

the weight to be given to that factor and how its inclusion should

affect the application of an adjustment for the defendant's role in the

offense under Chapter Three, Part B. Comment is further invited as to

whether the guidelines adequately account for the seriousness of the

sexual abuse offense (including the effects on the victim of sexual

abuse) and how any suggested changes should be applied. Currently,

through specific offense characteristics and other instructions in

Sec. 2A3.1, the guidelines consider the degree of bodily injury, age of

victim, sexual abuse of a person held within a correctional facility,

use of a dangerous weapon, circumstances in which the defendant holds a

supervisory or custodial role, circumstances in which the victim was

abducted, and death of the victim. The Commission invites comment on

additional factors that might appropriately be considered and the

weights such factors should be given.

Chapter Two, Parts A (Offenses Against the Person); G (Offenses

Involving Prostitution, Sexual Exploitation of Minors, and Obscenity);

J (Offenses Involving the Administration of Justice); and L (Offenses

Involving Immigration, Naturalization, and Passports)

6. Synopsis of Proposed Amendment: Sections 60010, 60011, 60016,

60017, and 60024 of the Violent Crime Control and Law Enforcement Act

of 1994 increase the penalty for various offenses resulting in the

death of a victim. It is not clear whether imposition of the penalties

in the new law will require proof of the conduct by a preponderance of

the evidence or beyond a reasonable doubt. For example, the ``beyond a

reasonable doubt standard'' contemplated in some instances by McMillan

v. United States, 477 U.S. 79 (1986), might be triggered by section

60010, which increases the six-month maximum imprisonment penalty for

abusive sexual contact of a ward to a maximum sentence of death or

imprisonment for any term of years or life if death results from that

contact.

Two options are shown. Option 1 amends the Statutory Index to

reference the new provisions to guidelines in Chapter Two, Part A, when

death results from the underlying offense. Under Sec. 1B1.2 (Applicable

Guidelines), this reference will apply only if it is found beyond a

reasonable doubt that death resulted from the offense. Option 2 amends

the guidelines for the underlying offenses to include a cross reference

to Chapter Two, Part A, if death results from the offense. Under Option

2, it need only be found by a preponderance of the evidence that death

resulted from the offense for the cross reference to apply, consistent

with Sec. 1B1.3 (Relevant Conduct).

Proposed Amendment: [Option 1: Appendix A (Statutory Index) is

amended in the line referenced to 8 U.S.C. Sec. 1324(a) by inserting

``2A1.1, [[Page 2432]] 2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2,'' immediately

before ``2L1.1'';

In the line referenced to 18 U.S.C. Sec. 1503 by inserting ``2A1.1,

2A1.2, 2A1.3, 2A2.1,'' immediately before ``2J1.2'';

In the line referenced to 18 U.S.C. Sec. 1513 by inserting ``(b)''

immediately following ``1513'';

By inserting the following at the appropriate place by title and

section:

``18 U.S.C. Sec. 1513(a) 2A1.1, 2A1.2, 2A1.3, 2A2.1 (2J1.2 for

offenses committed prior to September 13, 1994)'';

In the line referenced to 18 U.S.C. Sec. 2243(a) by inserting

``2A1.1, 2A1.2, 2A1.3, 2A1.4,'' immediately before ``2A3.2'';

In the line referenced to 18 U.S.C. Sec. 2243(b) by inserting

``2A1.1, 2A1.2, 2A1.3, 2A1.4,'' immediately before ``2A3.3'';

In the line referenced to 18 U.S.C. Sec. 2244 by inserting ``2A1.1,

2A1.2, 2A1.3, 2A1.4,'' immediately before ``2A3.4''; and

In the lines referenced to 18 U.S.C. Sec. 2251(a), (b) and to 18

U.S.C. Sec. 2251(c)(1)(B) by inserting ``2A1.1, 2A1.2, 2A1.3, 2A1.4,''

immediately before ``2G2.1''.]

[Option 2: Section 2A3.2(c) is amended by inserting the following

additional subdivision:

``(2) If death resulted, apply the most analogous offense guideline

from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting

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

Section 2A3.3 is amended by inserting the following additional

subsection:

``(b) Cross Reference

(1) If death resulted, apply the most analogous offense guideline

from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting

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

Section 2A3.4(c) is amended by inserting the following additional

subdivision:

``(3) If death resulted, apply the most analogous offense guideline

from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting

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

Section 2G2.1 is amended by redesignating subsection (c) as (d);

and by inserting the following as subsection (c):

``(c) Cross Reference

(1) If death resulted, apply the most analogous offense guideline

from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting

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

Section 2J1.2(c) is amended by deleting ``Reference'' and inserting

in lieu thereof ``References''; and by inserting the following

additional subdivision:

``(2) If death resulted, apply the most analogous offense guideline

from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting

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

Section 2L1.1 is amended by inserting the following additional

subsection:

``(c) Cross Reference

(1) If death resulted, apply the most analogous offense guideline

from Chapter Two, Part A, Subpart 1 (Homicide), if the resulting

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

Chapter Two, Part A (Offenses Against the Person)

Chapter Four, Part A (Criminal History)

7. Synopsis of Proposed Amendment: Section 40111 of the Violent

Crime Control and Law Enforcement Act of 1994 adds a new section 2247

to title 18 that doubles the statutory maximum term of imprisonment for

defendants convicted of offenses under chapter 109A (Sexual Abuse) of

title 18 who have been convicted previously in federal or state court

of aggravated sexual abuse, sexual abuse, or aggravated sexual contact.

The section also directs the Sentencing Commission to implement this

provision ``by promulgating amendments, if appropriate, in the

sentencing guidelines applicable to chapter 109A offenses.''

None of the Chapter Two sexual abuse guidelines currently provides

for enhancement for repeat sex offenses. However, 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). Guideline 4B1.1 (Career Offender) also

provides enhanced penalties for offenders who engage in a crime of

violence or controlled substance offense, having been sentenced

previously for two or more crimes of either type. Crimes of violence

include sexual abuse offenses committed with violence or force or

threat of force (Sec. 4B1.2(1)). For cases in which a defendant is

sentenced for a current sexual offense, has only one prior sexual

offense, and no other prior crimes of violence or controlled substance

offenses, the prior sexual offense is accounted for within the

calculation of Criminal History Score. The Criminal History Score

classifies prior convictions based upon type and length of prior

sentence. Consequently, the sexual nature of the prior offense is not

considered specifically although it may be related to the type and

length of prior sentence.

Although, as noted above, the guidelines currently do not enhance

specifically for one prior repeat sex crime, Sec. 4A1.3 (Adequacy of

Criminal History Category) generally 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.'' The proposed amendment builds on Sec. 4A1.3

by specifically listing as a basis for upward departure the fact that

the defendant has a prior sentence for conduct similar to the instant

sexual offense. This approach implements the directive to the

Commission in a broader but more flexible form.

Proposed Amendment: The Commentary to Sec. 2A3.1 captioned

``Application Notes'' is amended by inserting the following additional

note:

``6. 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 under Sec. 4A1.3 (Adequacy of Criminal History

Category).''.

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 under Sec. 4A1.3 (Adequacy of Criminal History

Category).''.

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

amended 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 under Sec. 4A1.3 (Adequacy of Criminal History

Category).''.

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 under Sec. 4A1.3 (Adequacy of Criminal History

Category).''.

Section 4A1.3 is amended by inserting the following new paragraph

as the third paragraph:

``An upward departure under this provision, to reflect a

defendant's demonstrated pattern of particularly egregious criminal

conduct, also may be warranted if all of the following apply: (A) the

instant offense involves death, serious bodily injury, the attempted

[[Page 2433]] infliction of death or serious bodily injury, or a

forcible sexual offense; (B) the defendant's prior criminal history

includes one or more sentences for conduct that is similar to the

instant offense; and (C) the provisions of Secs. 4A1.1 (Career

Offender) or 4A1.4 (Armed Career Criminal) do not apply.''.

Additional Issue for Comment: The Commission invites comment on

whether, as an alternative to the proposed amendment, it should amend

the guidelines in Chapter Two, Part A, Subpart 3 (Criminal Sexual

Abuse) to provide higher offense levels if the defendant has a prior

conviction in federal or state court for aggravated sexual abuse,

sexual abuse, or aggravated sexual contact, and, if so, how such a

provision might best be drafted to account for the wide variations in

offenses of conviction that may involve such underlying conduct. The

Commission also invites comment on the appropriate amount of any such

increase in offense levels. Note that in circumstances in which the

defendant has two or more prior felony convictions of either a crime of

violence (which includes forcible sex offenses) or a controlled

substance offense, Sec. 4B1.1 (Career Offender) will provide a sentence

at or near the statutory maximum for the current offense.

Chapter Two, Part B (Offenses Involving Property)

Chapter Two, Part F (Offenses Involving Fraud Or Deceit)

8. Synopsis of Proposed 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

of the punishment for a defendant convicted of a felony under chapter

25 (Counterfeiting and Forgery) of title 18, United States Code

(sections 471-513), if the defendant used or carried a firearm (as

defined in section 921(a)(3) of title 18, United States Code) during

and in relation to the felony.'' The vast majority of offenses in

chapter 25 are covered by Secs. 2B5.1 (Offenses Involving Counterfeit

Bearer Obligations of the United States) and 2F1.1 (Fraud and Deceit;

Offenses Involving Altered or Counterfeit Instruments Other than

Counterfeit Bearer Obligations of the United States). Neither

Sec. 2B5.1 nor Sec. 2F1.1 provides an adjustment for possession of a

firearm during and in relation to a felony. Commission data suggest

that the frequency of firearm possession in such cases is very low.

Two options are shown. Option 1 amends Secs. 2B5.1 and 2F1.1 to

provide an adjustment for using or carrying a weapon in connection with

the offense. Option 2 amends Secs. 2B5.1 and 2F1.1 to recommend an

upward departure in such circumstances.

Proposed Amendment: [Option 1: 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 ``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 next to the last

paragraph:

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

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

322.''.]

[Option 2: The Commentary to Sec. 2B5.1 captioned ``Application

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

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

connection with the offense, an upward departure may be warranted.''.

The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is

amended by inserting the following additional Note:

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

connection with the offense, an upward departure may be warranted.''.]

Additional Issue for Comment: The Commission, at the request of the

Department of Justice, invites comment on whether the form of any

enhancement for a dangerous weapon should be that used in Sec. 2B3.1

(Robbery) or that used in Chapter Two, Part D (Offenses Involving

Drugs).

Chapter Two, Part D (Offenses Involving Drugs)

9. Synopsis of Proposed Amendment: Section 60008 of the Violent

Crime Control and Law Enforcement Act of 1994 creates a new offense

codified at 18 U.S.C. Sec. 36 that makes it unlawful to fire a weapon

into a group of two or more persons in furtherance of, or to escape

detection of, a major drug offense with intent to intimidate, harass,

injure, or maim, and in the course of such conduct cause grave risk to

any human life or kill any person. A ``major drug offense'' is defined

to mean a continuing criminal enterprise, 21 U.S.C. Sec. 848(c), a drug

distribution conspiracy under 21 U.S.C. Sec. 846 or Sec. 963, or an

offense involving large quantities of drugs that is punishable under 21

U.S.C. Sec. 841(b)(1)(A) or Sec. 960(b)(1).

Two options are shown. Option 1 references this offense to

Sec. 2D1.1 in the Statutory Index. Option 2, in addition, references

the applicable Chapter Two, Part A, offenses.

Proposed Amendment: [Option 1: Appendix A (Statutory Index) is

amended by inserting the following in the appropriate place by title

and section:

``18 U.S.C. Sec. 36 2D1.1''.]

[Option 2: Appendix A (Statutory Index) is amended by inserting the

following in the appropriate place by title and section:

``18 U.S.C. Sec. 36 2A1.1, 2A1.2, 2A2.1, 2A2.2, 2D1.1''.]

Additional Issue for Comment: The Commission, at the request of the

Department of Justice, invites comment as to whether there should be an

enhancement under Sec. 2D1.1 for reckless endangerment by firing a

weapon into a group of two or more persons in a circumstance set forth

in section 60008 when no injury occurs.

10(A). Issue for Comment: Section 90101 of the Violent Crime

Control and Law Enforcement Act of 1994 amends 18 U.S.C. Sec. 1791

(providing or possessing contraband in prison) to provide four

different maximum penalties depending on the type of controlled

substance. The Commission invites comment on the appropriate treatment

of offenses under 18 U.S.C. Sec. 1791 involving drug trafficking in

correctional facilities. Specifically, should the enhanced offense

level in the cross reference in Sec. 2P1.2 (two levels plus the offense

level from Sec. 2D1.1) be expanded to apply to all drug trafficking

offenses under 18 U.S.C. Sec. 1791? Should the minimum offense level of

26 in this cross reference be applied to methamphetamine offenses to

reflect that such offenses now have the same 20-year statutory maximum

penalty as the other controlled substance distribution offenses to

which this cross reference applies? The Commission also invites comment

on the appropriate offense levels under Sec. 2P1.2 for offenses

involving the simple possession of controlled substances that occur in

correctional facilities. [[Page 2434]]

(B). Issue for Comment: Section 90103 of the Violent Crime and Law

Enforcement Act of 1994 directs the Commission to amend the guidelines

to provide an adequate enhancement for (1) an offense of simple

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

occurs in a federal prison or detention facility, and (2) an offense

under 21 U.S.C. Sec. 841 that involves distributing a controlled

substance in a federal prison or detention facility. The Commission

invites comment as to the best methods of implementing this directive.

With respect to distribution offenses, the Commission specifically

invites comment as to whether such offenses should be referenced to

Sec. 2D1.2, which provides enhanced penalties for controlled substance

distribution offenses involving protected locations. With respect to

simple possession offenses, the Commission specifically invites comment

as to whether an enhancement of two levels would be an appropriate

enhancement, or whether a higher or lower enhancement should be used.

In addition, the Commission invites comment on how the offense levels

for simple possession offenses in a correctional facility under

Secs. 2D2.1 and 2P1.2 might better be coordinated.

11. Issue for Comment: Section 90102 of the Violent Crime Control

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

guidelines to provide ``an appropriate enhancement'' for a defendant

convicted of violating 21 U.S.C. Sec. 860. This statute prohibits drug

trafficking in protected locations (e.g., near schools, playgrounds,

video arcades). Guideline 2D1.2 currently contains an enhanced penalty

for such offenses based on a congressional directive to the Commission

in section 6454 of Public Law 100-690 (pertaining to drug offenses

involving persons less than 18 years of age). The Commission seeks

comment on whether the enhancement for these offenses in Sec. 2D1.2 is

adequate to account for the directive set forth in section 90102 or, if

the current enhancement is not adequate, how and to what extent

Sec. 2D1.2 should be amended to provide an appropriate enhancement.

Additional Issue for Comment: The Commission, at the request of the

Federal and Community Defenders, invites comment as to whether the

guidelines should be amended to provide a lower base offense level if

an offense is committed in a protected location selected by law

enforcement or its agents. The Commission specifically invites comment

on the following proposal.

Section 2D1.2(a)(4) is amended by deleting ``otherwise'' and

inserting in lieu thereof:

``(A) if the offense involved a protected location and the

protected location was selected by law enforcement personnel, or

someone acting under the direction or control of law enforcement

personnel, or (B) in any case not covered by subdivisions 1 through 3

of this subsection.''.

12. Synopsis of Proposed Amendment: Section Two of the Domestic

Chemical Diversion Act of 1993 (Public Law 103-200) changes the

designations of the listed chemicals from ``listed precursor

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

and ``list II chemicals,'' respectively. Guideline 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 the new terminology to avoid confusion.

Section Two of the Act also adds pills containing ephedrine as a

list I chemical. Ephedrine is a list I chemical under 21 U.S.C.

Sec. 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 could

be used to make methamphetamine). Unlike ephedrine, which is purchased

from a chemical company and is virtually 100 percent pure, these

tablets contain about 25 percent ephedrine. To avoid unwarranted

disparity, this amendment adds a note to Sec. 2D1.11 providing that

only the amount of actual ephedrine contained in the pill is to be used

in determining the offense level.

Section Eight of the Act removes three chemicals from the listed

chemicals controlled under the Controlled Substances Act and adds two

chemicals. Two of the chemicals removed from the list are not currently

listed in Sec. 2D1.11 because the Commission was aware that they were

erroneously included in the statute (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. To conform

Sec. 2D1.11 to this change, the proposed amendment deletes 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. Base offense levels for listed chemicals

in Sec. 2D1.11 are determined by their relationship to the most common

controlled substance they are used to manufacture. The proposed

amendment adds these chemicals to the Chemical Quantity Table in

Sec. 2D1.11 based on information provided by the Drug Enforcement

Administration regarding their use in the production of

methamphetamine.

Several of the chemicals in the Chemical Quantity Table are used in

the same process to make a controlled substance, such as hydriodic acid

and ephedrine as well the two chemicals added above. The current note

at the end of the Precursor Chemical Equivalency Table states ``[i]n

cases involving both hydriodic acid and ephedrine, calculate the

offense level for each separately and use the quantity that results in

the greatest offense level.'' The proposed amendment expands this note

to cover other chemicals that may be used together, including the two

chemicals added by the statute.

Proposed 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;'', ``12.56 KG or more of

Nitroethane;'',

(2) ``At least 5.34 KG but less than 17.8 KG of Benzaldehyde;'',

``At least 3.768 KG but less than 12.56 KG of Nitroethane;'',

(3) ``At least 1.78 KG but less than 5.34 KG of Benzaldehyde;'',

``At least 1.256 KG but less than 3.768 KG of Nitroethane;'',

(4) ``At least 1.25 KG but less than 5.34 KG of Benzaldehyde;'',

``At least 879 G but less than 1.256 KG of Nitroethane;'',

(5) ``At least 712 G but less than 1.25 KG of Benzaldehyde;'', ``At

least 502 G but less than 879 G of Nitroethane;'', [[Page 2435]]

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

least 126 G but less than 879 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 = 1.121 gm of Ephedrine'',

``1 gm of Nitroethane = 1.6 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 means 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.'';

By deleting Note D and inserting in lieu thereof:

``(D) 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 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 ``two or more list I

chemicals used together in the same manufacturing process''.

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

amended by deleting Note 4 in its entirety 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 purposes

of calculating the base offense level.

Examples:

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

and three kilograms of hydriodic acid. Both of these list I chemicals

are typically used together to manufacture methamphetamine. Therefore,

the base offense level for each listed chemical would be calculated

separately and the list I chemical with the highest base offense level

would be 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 used in two

different manufacturing processes and thus would not be used together.

In this case, the two kilograms of phenylacetic acid would 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 in its entirety, and by renumbering the

remaining notes accordingly.

13. Synopsis of Proposed Amendment: Section Three of the Domestic

Chemical Diversion Act of 1993 (Public Law 103-200) broadens the

prohibition in 21 U.S.C. Sec. 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. Guideline 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 revises Sec. 2D1.12

to provide a three-level reduction in the offense level for cases 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.

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

the greatest)'' 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.''.

Chapter Two, Part H (Offenses Involving Individual Rights)

Chapter Three, Part A (Victim-Related Adjustments)

14. Synopsis of Proposed Amendment: This is a three-part amendment.

First, the amendment adds an additional subsection to Sec. 3A1.1 to

implement the directive contained in Section 280003 of the Violent

Crime Control and Law Enforcement Act of 1994. 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,

better reflect the seriousness of the underlying conduct, and reflect

the revision of Sec. 3A1.1. Third, the amendment references violations

of 18 U.S.C. Sec. 248 (the Freedom of Access to Clinic Entrances Act of

1994, Public Law 103-259) to the consolidated guideline.

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 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.

Since their inception, the guidelines have provided enhanced

penalties for [[Page 2436]] offenses involving individual rights (hate

crimes or other offenses committed under color of law). These enhanced

penalties reflect that, in such offenses, the harm includes both the

underlying criminal conduct and an added civil rights component. Under

the current civil rights offense guidelines, there is a two-level

enhancement for hate crimes committed by a person other than a public

official. There is a six-level enhancement for all offenses committed

under color of law, including both hate and non-hate crimes.

The existing civil rights offense guidelines provide alternative

base offense levels: (1) the offense level applicable to the underlying

offense plus the additional levels for the civil rights component; and

(2) a minimum or ``default'' offense level. The enhanced offense levels

for civil rights offenses do not apply to hate crimes prosecuted under

other statutes. Official misconduct offenses (offenses committed under

color of law) prosecuted under other statutes generally receive an

enhanced penalty of two levels under Sec. 3B1.3 (Abuse of Position of

Special Trust) rather than the six levels applicable under the civil

rights offense guidelines.

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. The proposed 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, the

Commission will avoid unwarranted sentencing disparity based on the

mode of conviction. The Commission's authority, pursuant to 28 U.S.C.

Sec. 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.

Proposed Sec. 2H1.1 provides alternative offense levels using the

greatest of the following: (1) the base offense level for the

underlying offense; (2) level 10, for offenses involving the use or

threatened use of force or the actual or threatened destruction of

property; or (3) level 6, otherwise. In addition, two options for

setting the default offense level for conspiracies involving individual

rights are shown. One option sets a default level of 12 for offenses

involving two or more participants. This option is two levels higher

than the default offense level for substantive offenses involving force

or the threat of force and six levels higher than the default offense

level for substantive offenses not involving force or the threat of

force. A second option sets the default offense level of 10, which is

consistent with the default offense level for substantive civil rights

offenses involving force or the threat of force and four levels higher

than the offense level for substantive civil rights offenses not

involving force or the threat of force.

Proposed Sec. 2H1.1, working together with the proposed Sec. 3A1.1,

provides enhanced penalties for civil rights offenses. For hate crimes

committed by persons who are not public officials, the enhancement is

three levels under proposed Sec. 3A1.1, one level greater than under

the current guidelines. Unlike the current guidelines, however, the

proposed guideline differentiates between hate crimes and non-hate

crimes committed under color of law, punishing hate crimes committed by

public officials more severely than non-hate crimes. Proposed

Sec. 2H1.1 provides an enhancement for non-hate crimes committed under

color of law of either two, three, or four levels above the offense

level for the underlying offense. A two-level enhancement would be

consistent with the generally applicable enhancement under Sec. 3B1.3

(Abuse of Position of Special Trust). A three- or four-level

enhancement would be higher than the generally applicable enhancement

under Sec. 3B1.3 and arguably would reflect the greater harm done by

those in positions of authority when the harm involves violations of

individual rights. Because of the additional three-level hate crime

enhancement under Sec. 3A1.1, the proposed amendment would provide a

combined enhancement for hate crimes committed by public officials of

five, six, or seven levels.

The clinic access law, like the other criminal civil rights

statutes, criminalizes a broad array of conduct, from non-violent

obstruction of the entrance to a clinic to murder. The proposed

amendment treats these violations in the same way as other offenses

involving individual rights.

Two options are shown. Option 1 sets forth an amendment consistent

with the preceding discussion. An alternative to this proposed

amendment, published at the request of the Department of Justice, is

set forth as Option 2.

Proposed Amendment: [Option 1: Section 3A1.1 and accompanying

commentary is deleted in its entirety 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;

or

(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.

Commentary

Application Notes:

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

that special evidentiary requirements govern the application of this

subsection.

2. Subsection (b) applies to offenses in which an unusually

vulnerable victim is made a target of criminal activity by the

defendant and the defendant knew or should have known of the victim's

unusual vulnerability. The adjustment would apply, for example, in a

fraud 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.

3. 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.

4. 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.

5. If subsection (a) applies, do not apply subsection (b). In the

case of an offense that both is a ``hate'' crime and involves an

unusually vulnerable [[Page 2437]] victim, a sentence at or near the

upper limit of the applicable guideline range (which will include a 3-

level enhancement from subsection (a)) typically will be appropriate.

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 Introductory Commentary to Chapter Two, Part H, Subpart I and

Secs. 2H1.1, 2H1.3, 2H1.4, and 2H1.5 are deleted in their entirety 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) 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 (C) two or more participants; or

(3) 6, otherwise.]

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

(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 [2][3][4] levels. If the resulting offense level is less than level

10, increase to level 10.

Commentary

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

248, 1091; 42 U.S.C. Sec. 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) or (3)] [(a)(2), (3), (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) or (3)] [(a)(2),

(3), (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)[(2)][(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).''.]

[Option 2: Section 2H1.1(b) is amended by inserting the following

additional subdivision:

``(2) If proof of the conspiracy requires a showing that a

defendant acted for an improper purpose as defined in 18 U.S.C.

Secs. 245, or 247, or 42 U.S.C. Sec. 3631, increase by [1] level.''.

Section 2H1.3(a) is amended--

(1) in subdivision (1) by deleting ``10'' and inserting in lieu

thereof ``[11]'';

(2) in subdivision (2) by deleting ``15'' and inserting in lieu

thereof ``[16]''; and

(3) in subdivision (3) by deleting ``2'' and inserting in lieu

thereof ``[3]''.

Chapter Three, Part A, is amended by adding the following

additional section:

Sec. 3A1.4. Hate Crime Motivation

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.

Commentary

Application Notes:

1. Do not apply this adjustment if the offense guideline

specifically incorporates this factor. For example, do not apply this

adjustment if Sec. 2H1.1(b)(2) or Sec. 2H1.3 applies. Similarly, do not

apply this adjustment 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 established by the Chapter Two offense guideline.

2. Note that special evidentiary requirements govern the

application of this subsection.

Background: This section reflects the directive to the Commission

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., that the

defendant intentionally selected a victim or property as the object of

the offense because of a factor listed in this section). 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.''.

Additional Issue for Comment: If Option 2 is adopted, the

Commission seeks comment on how it should implement the penalty

provisions of the Freedom of Access to Clinic Entrances Act of 1994.]

Chapter Two, Part K (Offenses Involving Public Safety)

15. Synopsis of Proposed Amendment: Section 110102 of the Violent

Crime Control and Law Enforcement Act of 1994 amends 18 U.S.C. Sec. 922

to add subsection (v), making it unlawful to manufacture, transfer, or

possess ``semiautomatic assault weapons.'' Previously, only importation

and possession (pursuant to 18 U.S.C. Sec. 925(d)(3)) and assembly of

imported parts (pursuant to 18 U.S.C. Sec. 922(r)) of semiautomatic

assault rifles [[Page 2438]] and shotguns (but not pistols) were

prohibited. Section 110102 also increases the penalty for using or

carrying a semiautomatic assault weapon ``during and in relation to any

crime of violence or drug trafficking crime'' to a fixed, mandatory

consecutive term of 10 years or, in the case of a second or subsequent

conviction, 20 years. The term ``semiautomatic assault weapon'' is

defined at new 18 U.S.C. Sec. 921(a)(30).

Guideline 2K2.1 covers other firearm offenses involving

semiautomatic assault weapons. For example, the base offense level for

possession of an unlawfully imported semiautomatic assault weapon is

level 12. Additional adjustments may apply and an upward departure is

recommended if the offense involved multiple military-style assault

rifles.

Proposed Amendment: Appendix A (Statutory Index) is amended by

inserting the following in the appropriate place by title and section:

``18 U.S.C. Sec. 922(v) 2K2.1''.

Additional Issue for Comment: At the request of the Department of

Justice, the Commission invites comment as to whether there should be

an enhanced offense level under Sec. 2K2.1 for a conviction under 18

U.S.C. Sec. 922(v).

16. Synopsis of Proposed Amendment: Section 110201 of the Violent

Crime Control and Law Enforcement Act of 1994 adds a new provision at

18 U.S.C. Sec. 922(x) making it unlawful, with some exceptions, to sell

or transfer a handgun, or ammunition that is suitable for use only in a

handgun, to a juvenile. The provision also prohibits, with some

exceptions, a juvenile from possessing a handgun or ammunition. A

juvenile is defined as a person who is less than eighteen years of age.

The maximum imprisonment penalty for a person who violates this section

is one year. However, if an adult defendant transfers a handgun or

ammunition to a juvenile ``knowing or having reasonable cause to know

that the juvenile intended to carry or otherwise possess or discharge

or otherwise use the handgun or ammunition in the commission of a crime

of violence,'' the maximum authorized term of imprisonment is ten

years.

In addition, section 110401 of the Violent Crime Control and Law

Enforcement Act of 1994 amends 18 U.S.C. Sec. 922(d) to make it

unlawful to sell or otherwise dispose of any firearm or ammunition to

any person, knowing or having reasonable grounds to believe that such

person ``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.'' This section also amends 18

U.S.C. Sec. 922(g) to make it unlawful for a person who is subject to

such a court order to possess or receive any firearm or ammunition in

or affecting commerce.

Guideline 1B1.12 provides that the guidelines do not apply to a

juvenile sentenced under the Juvenile Delinquency Act, 18 U.S.C.

Sec. 5031-5042. Guideline 2K2.1 typically applies a base offense level

of 6 to a misdemeanor offense or to a felony recordkeeping offense.

Guideline 2K2.1 provides a base offense level of 12 for the transfer of

a firearm by a licensed dealer to a juvenile or to a person prohibited

under 18 U.S.C. Sec. 922(g) from possessing a firearm. The section also

provides a base offense level of 14 for possession of a firearm by a

prohibited person and increases the base offense level depending on the

prior criminal history of the defendant. A specific offense

characteristic may apply in the case of multiple firearms. A defendant

who transfers a firearm knowing or having reason to believe that it may

be used in connection with another felony offense is subject to the

greater of a four-level adjustment with a minimum offense level of 18,

or a cross reference to the guideline for the other offense.

The proposed amendment adds a person under the court order

described in section 110401 to the definition of a ``prohibited

person.'' In addition, three amendment options are shown regarding the

offense level for transfer of a firearm to a juvenile. Option 1 would

result in a base offense level of 6; Option 2 would result in a base

offense level of 12; Option 3, published at the request of the

Department of Justice, would result in a base offense level of 14 if

the defendant transferred a firearm to an underage person or to another

prohibited person. Such a defendant currently would receive a base

offense level of 12 under Sec. 2K2.1.

Proposed Amendment: 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 the defendant from harassing,

stalking, or threatening an intimate partner or child or from engaging

in related conduct.'' immediately following ``States''.

[Option 1: Section Sec. 2K2.1(a)(8) is amended by deleting ``or''

and by inserting ``, or (x)'' immediately following ``(m)''.

Appendix A (Statutory Index) is amended by inserting the following

in the appropriate place by title and section:

``18 U.S.C. Sec. 922(x) 2K2.1''.]

[Option 2: Appendix A (Statutory Index) is amended by inserting the

following in the appropriate place by title and section:

``18 U.S.C. Sec. 922(x) 2K2.1''.]

[Option 3: Section 2K2.1(a)(6) is amended by inserting ``or if the

transferor knew or had reasonable cause to believe that the transferee

was a prohibited person or was underage'' immediately following

``prohibited person''.

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

amended in Note 6 by inserting the following at the end thereof:

```Underage,' as used in subsection (a)(6), means under the ages set

forth in 18 U.S.C. Sec. 922(b)(1).

Appendix A (Statutory Index) is amended by inserting the following

in the appropriate place by title and section:

``18 U.S.C. Sec. 922(x) 2K2.1''.]

17. Issue for Comment: Section 110501 of the Violent Crime Control

and Law Enforcement Act of 1994 directs the Commission to provide an

appropriate enhancement for a crime of violence or drug trafficking

crime if a semiautomatic firearm is involved. The Commission requests

comment on the most appropriate way to implement this directive.

Information available to the Commission indicates that 50 to 70 percent

of offenses involving a firearm involve a semiautomatic firearm; thus,

offenses involving semiautomatic firearms represent the typical or

``heartland'' cases. Specifically, the Commission requests comment on

how the offense level for an offense involving a semiautomatic firearm

should be modified to address the directive. The Commission also

requests comment on whether such an increase should apply to all

semiautomatic firearms or whether the Commission should focus this

enhancement on firearms that have characteristics that make them more

dangerous than other firearms (e.g., semiautomatic firearms with a

large magazine capacity). In addition, the Commission requests comment

on whether any such enhancement should apply only to crimes of violence

and drug trafficking offenses as specified in the directive or whether

it should apply to other offenses such as firearms offenses covered by

Sec. 2K2.1 or to all offenses.

18. Issue for Comment: Section 110502 of the Violent Crime Control

and [[Page 2439]] Law Enforcement Act of 1994 directs the Commission to

``appropriately enhance penalties for cases in which a defendant

convicted under 18 U.S.C. Sec. 844(h) has previously been convicted

under that section.'' Section 320106 revises the previous fixed,

mandatory consecutive 5-year penalty for a first offense under 18

U.S.C. Sec. 844(h) to provide a range of 5 to 15 years, and changes the

previous fixed, mandatory consecutive penalty for a second offense from

10 years to a range of 10 to 25 years. The Commission requests comment

as to how Sec. 2K2.4 can be amended appropriately to address this

directive and statutory change. Possible approaches might include: (1)

an amendment to Sec. 2K2.4 to increase the sentence by a specific

amount if the defendant previously has been convicted under 18 U.S.C.

Sec. 844(h); (2) application under Sec. 2K2.4 of the minimum term of

imprisonment required by statute, with a departure recommended when

this sentence, combined with the sentence for the underlying offense,

does not provide adequate punishment; or (3) an amendment to Sec. 2K2.4

to reference the underlying offense plus an appropriate enhancement for

the weapon or explosive, and a provision for apportioning the sentence

imposed to avoid double counting.

19. Issue for Comment: Section 110513 of the Violent Crime Control

and Law Enforcement Act of 1994 directs the Commission to

``appropriately enhance'' penalties (1) for cases in which a defendant

convicted under 18 U.S.C. Sec. 922(g) has one prior conviction for a

violent felony (as defined in 18 U.S.C. Sec. 924(e)(2)(B)) or a serious

drug offense (as defined in 18 U.S.C. Sec. 924(e)(2)(A)); and (2) for

cases in which a defendant has two such prior convictions. The

statutory maximum for the offense remains at ten years.

Guideline 2K2.1 covers violations of 18 U.S.C. Sec. 922(g).

Alternative base offense level apply depending on the number of prior

convictions of one or more ``crime[s] of violence'' or ``controlled

substance offense[s].'' For example, a defendant with one such prior

conviction would receive a base offense level of at least 20. A

defendant with two or more such prior convictions would receive a base

offense level of at least 24. In addition, a four-level enhancement or

a cross reference may apply if the weapon was to be used in another

felony. Other enhancements may apply depending on the type and number

of weapons, and whether the weapon was stolen.

The Commission's definitions of ``crime of violence'' and

``controlled substance offense'' are similar but not identical to those

referenced in the directive. Guideline 2K2.1 draws its definition of

``crime of violence'' from 18 U.S.C. Sec. 924(e) with a minor

modification. Whereas the section 924(e) definition of ``violent

felony'' includes any burglary, including a burglary of an abandoned

commercial building, Taylor v. United States, 495 U.S. 575, 602 (1990),

the definition of ``crime of violence'' in Sec. 2K2.1 includes only

burglary of a dwelling, consistent with the career offender provisions

of the guidelines. United States v. Talbott, 902 F.2d 1129, 1133 (4th

Cir. 1990).

Further, the Sec. 2K2.1 definition of ``controlled substance

offense,'' drawn from 18 U.S.C. Sec. 924(c) and the career offender

provisions of the guidelines, is slightly different from that in 18

U.S.C. Sec. 924(e). The section 924(e) definition of ``serious drug

offense'' requires that the drug offense (whether federal or state)

have a maximum term of imprisonment of ten years or more. This narrower

definition precludes, for example, counting a federal conviction under

21 U.S.C. Sec. 843(b) (four year statutory maximum for using a

communication facility to facilitate drug distribution). By contrast,

the definition of ``controlled substance offense'' in Sec. 2K2.1

includes such ``telephone counts.'' United States v. Vea-Gonzales, 999

F.2d 1326, 1329-30 (9th Cir. 1993). Moreover, where one state imposes a

five-year maximum for certain drug conduct while another state imposes

a ten-year maximum for the identical conduct, the section 924(e)

definition would not count a defendant's conviction in the first state

but would count the defendant's conviction in the second state.

The Commission invites comment on whether the current offense

levels in these guidelines should be increased and, if so, by what

amount. The Commission also invites comment on whether, for

consistency, the definitions and counting of prior conviction of crime

of violence and drug trafficking offense used in these guidelines

should be the same as those used in Sec. 4B1.1 (Career Offender).

20. Synopsis of Proposed Amendment: Section 110504 of the Violent

Crime Control and Law Enforcement Act of 1994 amends 18 U.S.C. Sec. 924

to add subsection (k) making it unlawful to steal any firearm that is

moving or has moved in interstate commerce. Likewise, 18 U.S.C.

Sec. 844 is amended to add subsection (k) making it unlawful to steal

any explosive that is moving or has moved in interstate commerce.

Section 110511 amends 18 U.S.C. Sec. 922(j) to clarify that it is

unlawful to receive or possess any stolen firearm that has moved in

interstate commerce regardless of whether the movement occurred

``before or after it [the firearm] was stolen.''

Section 110515 amends 18 U.S.C. Sec. 924 to add a new subsection

(l) making it a federal crime to steal any firearm from a licensed

importer, manufacturer, dealer, or collector. The section also amends

18 U.S.C. Sec. 844 to add a new subsection (l) with regard to stealing

explosives from licensees.

Current law also proscribes shipping a stolen firearm (18 U.S.C.

Sec. 922(i)), stealing from the person or premises of a licensee any

firearm in the business inventory (18 U.S.C. Sec. 922(u)), and shipping

stolen explosives (18 U.S.C. Sec. 842(h)). Further, the general theft

statute, 18 U.S.C. Sec. 659, provides a maximum imprisonment penalty of

ten years for stealing ``goods or chattels,'' including a firearm,

``moving as or which are part of or which constitute an interstate or

foreign shipment of freight, express, or other property.'' Other theft

and receipt of stolen property statutes may also apply to a theft of a

firearm.

Guideline 2K2.1 covers offenses involving stolen firearms. These

offenses are subject to a base offense level of 12. Additional

adjustments may also apply. A two-level enhancement applies if a

firearm is stolen unless the only count of conviction is a stolen

firearm offense. This conditional adjustment has resulted in several

calls to the Commission's hotline regarding cases involving a felon in

possession of a stolen firearm who may be charged either under 18

U.S.C. Sec. 922(g) (felon in possession) or with 18 U.S.C. Sec. 922(j)

(receipt of stolen firearm). A conviction under section 922(g) will

result in a total offense level of 16 (base offense level of 14 plus

two-level adjustment for stolen firearm). A conviction under section

922(j) will result in a total offense level of 14 (base offense level

of 14 but, per application note 12, no two-level adjustment for stolen

firearm because the only offense of conviction is a stolen firearm

offense). Further, the list of stolen firearm statutes has not been

updated to reflect recent amendments to the code. Indeed, 18 U.S.C.

Sec. 922(u) (theft from dealer) as well as 18 U.S.C. Secs. 922(s) and

922(t) (Brady bill provisions) are not listed in the Statutory Index.

Guideline 2B1.1 governs general theft offenses, including offenses

of goods traveling in interstate commerce and offenses within the

special federal maritime or territorial jurisdiction or within Indian

territory. Guideline [[Page 2440]] 2B1.1(b)(2)(A) provides for a one-

level increase (to no less than level 7) if a firearm or destructive

device was taken, compared with a base offense level 12 under

Sec. 2K2.1.

Two options are proposed to address the disparity in Sec. 2B1.1 and

Sec. 2K2.1 penalties. Option 1 amends Sec. 2B1.1 to include a cross

reference to Sec. 2K2.1. Option 2 amends Sec. 2B1.1 to recommend an

upward departure. The amendment also specifies a base offense level of

6 for convictions under 18 U.S.C. Sec. 922 (s) or (t) and clarifies

application of Note 6 only to cases in which the base offense level is

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

Proposed Amendment: Section 2K2.1(a)(8) is amended by deleting

``or'' and inserting in lieu thereof ``(s), or (t)''.

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

amended in Note 12 by deleting ``or (k),'' and inserting in lieu

thereof ``(u), or Sec. 924 (j) or (k),''; and by inserting ``and the

base offense level is determined under Sec. 2K2.1(a)(7),'' immediately

following ``guideline,''.

[Option 1: Section 2B1.1(b) is amended by deleting subdivision (2).

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.''.]

[Option 2: Section 2B1.1(b) is amended by deleting subdivision (2).

The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is

amended by inserting the following additional Note:

``15. If the offense involved the unlawful taking, receipt,

transportation, transfer, transmittal, or possession of a firearm,

destructive device, explosive material, or controlled substance, an

upward departure to an offense level comparable to that provided under

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

be warranted.''.]

Appendix A (Statutory Index) is amended by inserting the following

in the appropriate place by title and section:

``18 U.S.C. Sec. 922(s)-(u) 2K2.1'',

``18 U.S.C. Sec. 924(k),(l) 2K2.1''.

21. Synopsis of Proposed Amendment: Section 110518 of the Violent

Crime Control and Law Enforcement Act of 1994 amends 18 U.S.C. Sec. 924

to add a new subsection (n) to provide that ``[a] person who conspires

to commit an offense under subsection (c) shall be imprisoned for not

more than 20 years, fined under this title, or both; and if the firearm

is a machinegun or destructive device, or is equipped with a firearm

silencer or muffler, shall be imprisoned for any term of years or

life.'' This section also amends 18 U.S.C. Sec. 844 to add a new

subsection (m) increasing to 20 years the maximum imprisonment penalty

for a conspiracy to violate 18 U.S.C. Sec. 844(h). This section does

not alter the fixed, mandatory consecutive penalty for the underlying

substantive offenses of using or carrying a firearm or explosive during

and in relation to a crime of violence or drug trafficking crime. Thus,

identical offense conduct covered by these statutes may be subject, for

example, to a fixed, mandatory five-year term to run consecutively to

any underlying offense if indicted under 18 U.S.C. Sec. 924(c), a 5-

year mandatory minimum term and 15-year maximum term to run

consecutively to any underlying offense if indicted under 18 U.S.C.

Sec. 844(h), a 5-year maximum term under 18 U.S.C. Sec. 371, or a 20-

year maximum term under 18 U.S.C. Sec. 924(n).

Guideline 2K2.4 provides for the term of imprisonment required by

18 U.S.C. Sec. 924(c). Guideline 2K2.1 applies to an offense under 18

U.S.C. Sec. 371 involving conspiracy to violate 18 U.S.C. Sec. 924(c)

and provides for an offense level of at least 18 (base offense level 12

plus increase to an offense level of at least 18 if the firearm or

ammunition was used or intended to be used in connection with another

offense). Additional adjustments may apply. The explosives guideline,

Sec. 2K1.3, also provides an offense level of at least 18 for a

conviction under 18 U.S.C. Sec. 371 for conspiracy to violate 18 U.S.C.

Sec. 844(h).

Proposed Amendment: Appendix A (Statutory Index) is amended in the

line referenced to 18 U.S.C. Sec. 371 by inserting ``2K2.1 (if a

conspiracy to violate 18 U.S.C. Sec. 924(c)),'' immediately before

``2X1.1''.

Appendix A (Statutory Index) is amended by inserting the following

in the appropriate place by title and section:

``18 U.S.C. Sec. 844(m) 2K1.3

18 U.S.C. Sec. 924(n) 2K2.1''.

Additional Issue for Comment: At the request of the Department of

Justice, the Commission invites comment as to whether a conviction for

a conspiracy to violate section 924(c) should be more closely

referenced to the penalty in 18 U.S.C. Sec. 924(c) or to the guideline

for the underlying offense.

Chapter Two, Part L (Offenses Involving Immigration, Naturalization,

and Passports)

22(A). Issue for Comment: Section 60024 of the Violent Crime

Control and Law Enforcement Act of 1994 increases the statutory penalty

for bringing in or harboring an alien from five to ten years,

establishes a penalty of up to 20 years imprisonment if serious bodily

injury results, and establishes a penalty of imprisonment for any term

of years or life, if death results. In view of these statutory penalty

changes, the Commission invites comment on whether the offense levels

under the applicable guideline, Sec. 2L1.1 (Smuggling, Transporting, or

Harboring an Unlawful Alien), should be increased, and if so, by what

amount.

(B). Issue for Comment: Section 130001 of the Violent Crime Control

and Law Enforcement Act of 1994 alters the penalties for failing to

depart and for reentering the United States in violation of 8 U.S.C.

Secs. 1252(e) and 1326(b), respectively. This provision reduces the

statutory maximum penalties for some offenses from ten years to four

years, and increases the statutory maximum penalties for reentry after

commission of a felony or an aggravated felony from five to ten years,

and from 15 to 20 years, respectively. This provision also establishes

the offense of reentry after conviction for three or more misdemeanors

involving drugs, crimes against the person, or both. The Commission

invites comment on whether amendment of the applicable guideline is

appropriate. Specifically, are the current offense levels provided for

reentry after conviction of a felony or aggravated felony appropriate,

and if not, how should the guidelines be amended? Should the offense

level currently applicable for reentry after deportation for a felony

also be applied to deportation after conviction of three or more

misdemeanors involving drugs, crimes against the person, or both?

(C). Synopsis of Proposed Amendment: This proposed amendment,

published at the request of the Department of Justice, increases the

base offense level for immigration offenses committed by certain means

and increases the offense level if any person sustained bodily injury.

Proposed Amendment: Section 2L1.1(a) is amended by redesignating

subdivision (2) as subdivision (3) and inserting the following new

subdivision:

``(2) 13, if the offense was committed by means set forth in 8

U.S.C. Sec. 1324(a)(1)(A)(i) or 1324(a)(2)(B).''. [[Page 2441]]

Section 2L1.1(b) is amended by inserting the following additional

subdivision:

``(4) If any person sustained bodily injury, increase the offense

level according to the seriousness of the injury:

------------------------------------------------------------------------

Increase in

Degree of bodily Injury level

------------------------------------------------------------------------

(A) Bodily Injury......................................... Add 2.

(B) Serious Bodily Injury................................. Add 4.

(C) Permanent or Life-Threatening Bodily Injury........... Add 6.

(D) If the degree of injury is between that specified in Add 3.

subdivisions (A) and (B).

(E) If the degree of injury is between that specified in Add 5.''.

subdivisions (B) and (C).

------------------------------------------------------------------------

The Commentary to Sec. 2L1.1 captioned ``Application Notes'' is

amended in Note 5 by deleting ``dangerous or inhumane treatment, death

or bodily injury,''.

(D). Synopsis of Proposed Amendment: This proposed amendment,

published at the request of the Department of Justice, suggests an

additional ground for an upward departure for certain cases under

Sec. 2L1.2.

Proposed 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'' and inserting

``an upward departure'' in lieu thereof.

23(A). Issue for Comment: Section 130009 of the Violent Crime

Control and Law Enforcement Act of 1994 increases the statutory maximum

penalties for passport and visa offenses to ten years. Previously,

these offenses had statutory maximum penalties of one year or five

years. It also provides an increased statutory maximum penalty of 15

years if the offense is committed to facilitate a drug trafficking

crime, and 20 years if the offense is committed to facilitate an act of

international terrorism. Considering the existing policy statements at

Secs. 5K2.9 and 5K2.15 suggesting an upward departure in cases where

the offense was committed to facilitate another offense or in

furtherance of a terroristic action, the Commission invites comment on

whether, and if so, how, the guidelines should be amended with respect

to passport and visa offenses.

(B). Synopsis of Proposed Amendment: This proposed amendment,

published at the request of the Department of Justice, consolidates

Secs. 2L2.1 and 2L2.2 and provides additional enhancements if the

offense was committed to facilitate certain unlawful conduct.

Proposed Amendment: Sections 2L2.1 and 2L2.2 are deleted in their

entirety and the following is inserted in lieu thereof.

``Sec. 2L2.1. Fraudulently Issuing, Acquiring or Improperly Using

Passports or Visas; False Statements in Respect to Passports and Visas;

Forging, Counterfeiting or Altering Passports or Visas; Trafficking in

International Travel Documents, or Birth Certificates, Driver Licenses

or Other Documents to Fraudulently Obtain Issuance of Passports or

Visas; Use of Passports or Visas to Facilitate Narcotics Trafficking or

International Terrorism.

(a) Base Offense Level:

(1) 26, if the offense was committed to facilitate an act of

international terrorism.

(2) 20, if the offense was committed to facilitate a drug

trafficking crime;

(3) 13, otherwise.

(b) Specific Offense Characteristics

(1) If the offense involves six or more documents or passports,

increase as follows:

------------------------------------------------------------------------

Passports

Number of documents increase in

level

------------------------------------------------------------------------

(A) 6-24.................................................. Add 2.

(B) 25-99................................................. Add 4.

(C) 100 or more........................................... Add 6.

------------------------------------------------------------------------

(2) If the defendant is an unlawful alien who has been previously

deported (voluntarily or involuntarily) on one or more occasions prior

to the instant offense, increase by 2 levels.

(3) If the offense was committed to facilitate racketeering

activity, increase by 3 levels.

(4) If the offense was committed to facilitate unlawful flight from

justice, increase by 3 levels.

(5) If the defendant committed the offense other than for profit

(except as provided in paragraph (3) or (4)), decrease by 3 levels.

Commentary

Statutory Provisions: 8 U.S.C. Secs. 1160(b)(7)(A), 1185(a)(3),

(4), (5), 1325(b), (c); 18 U.S.C. Secs. 911, 1015, 1028, 1423-1427,

1541-1544, 1546, 1547.

Application Notes:

1. Where it is established that multiple documents are part of a

set intended for use by one person, treat the documents in the set as

one document for the purposes of subsection (b).

2. If the offense involved possession of a dangerous weapon, an

upward departure may be warranted.

3. `Racketeering activity' is defined at 18 U.S.C. Sec. 1961.

4. `Drug trafficking crime' is defined at 18 U.S.C. Sec. 929(a).

5. `International terrorism' is defined at 18 U.S.C. Sec. 2331.

6. If two or more factors warranting an upward departure as

enumerated in subsection (b) apply, only the paragraph specifying the

highest level will be used.

7. `For profit' means for financial gain or commercial advantage.

8. If the offense was committed only for the purpose of concealing

age, a downward departure may be warranted.

9. For the purposes of Chapter Three, Part D (Multiple Counts), a

conviction for unlawfully entering or remaining in the United States

(Sec. 2L1.2) arising from the same course of conduct is treated as a

closely related count, and is therefore grouped with an offense covered

by this guideline.''.

Chapter Three (Adjustments)

Chapter Five, Part K (Departures)

24. Issue for Comment: 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 (unless such involvement or intent is

itself an element of the crime). Considering the existing policy

statement in Sec. 5K2.15 recommending an upward departure in such

cases, the Commission invites comment on whether, and if so how, the

guidelines should be amended to address this directive appropriately.

For example, should the Commission add an adjustment to Chapter Three

that would apply to all Chapter Two offenses and that would prescribe a

specific increase in offense level if the offense involved or was

intended to promote terrorism? If so, what level of enhancement would

be appropriate? Or, should the Commission amend Sec. 4B1.1 (Career

Offender) to enhance the sentences of such defendants under this

section as if they were career offenders?

25(A). Issue for Comment: Section 140008 of the Violent Crime

Control and Law Enforcement Act of 1994 directs the Commission to

provide an enhancement applicable to a defendant 21 or older who

involved a person under 18 in the offense. The directive further

specifies that the Commission consider the severity of the crime, the

number of minors used, the relevance of the proximity in age between

the offender and the minor, and the fact that involving a minor in a

crime of violence is often more serious than involving a minor in a

drug offense (for which the Commission has already provided a

[[Page 2442]] two-level enhancement). The Commission invites comment as

to whether it should implement section 140008 by creating (1) a

generally applicable departure policy statement in Chapter Five, Part K

(Departures), or (2) a Chapter Three adjustment. The Commission also

invites comment as to whether, if a Chapter Three adjustment is

appropriate, the adjustment should be two levels, commensurate with the

adjustment for abuse of position of trust, or a higher or lower number

of levels.

(B). Synopsis of Proposed Amendment: This proposed amendment,

published at the request of the Department of Justice, sets forth

Chapter Three adjustments for using a minor to commit a crime.

Proposed Amendment: Part B of Chapter Three is amended by

redesignating Sec. 3B1.4 as Sec. 3B1.5 and by inserting the following

new section:

``Sec. 3B1.4. Using a Minor to Commit a Crime

(a) If a defendant 21 years of age or older used or attempted to

use any person less than 18 years of age with the intent that the minor

would commit an offense or assist in avoiding detection of or

apprehension for an offense, increase by 2 levels.

(b) If the defendant used or attempted to use 5 or more minors,

increase by 1 additional level; if the defendant used or attempted to

use 15 or more minors, increase by 2 additional levels.

Commentary

Application Notes:

1. To `use a person less than 18 years of age' includes

soliciting, procuring, recruiting, counseling, encouraging, training,

directing, commanding, intimidating, or otherwise using such a person.

2. Do not apply this adjustment if the offense guideline

specifically incorporates this factor. However, if the adjustment under

this section is greater, apply this section in lieu of the adjustment

under the offense guideline.''.

26(A). Issue for Comment: Section 150001 of the Violent Crime

Control and Law Enforcement Act of 1994 creates a new section, 18

U.S.C. Sec. 521, that provides a statutory sentence enhancement of up

to ten years if a person commits a specified felony controlled

substance offense or crime of violence and participates in, intends to

further the felonious activities of, or seeks to maintain or increase

his or her position in, a criminal street gang. Section 150001 defines

a ``criminal street gang'' as an ongoing group, club, organization, or

association of five or more persons: (A) that has as one of its primary

purposes the commission of one or more of the following offenses: a

federal felony involving a controlled substance for which the maximum

penalty is not less than five years, a federal felony crime of violence

that has as an element the use or attempted use of physical force

against another, and the corresponding conspiracies; (B) whose members

engage (or have engaged during the past five years) in a continuing

series of these same offenses; and (C) the activities of which affect

interstate or foreign commerce.

The Commission invites comment on whether, and how, it should

incorporate into the sentencing guidelines the statutory sentence

enhancement described above. Specifically, the Commission invites

comment as to whether it should implement section 150001 by creating a

generally applicable departure policy statement in Chapter Five, Part K

(Departures) providing that if the enhancement contained in 18 U.S.C.

Sec. 521 (Criminal Street Gangs) is determined to apply, the court may

increase the sentence above the authorized guideline range.

Alternatively, the Commission could create a Chapter Three adjustment

that would apply to all Chapter Two offenses and that would provide a

specific enhancement.

(B). Synopsis of Proposed Amendment: This proposed amendment is

published at the request of the Department of Justice. The proposed

amendment would increase the offense level provided under Secs. 2K2.1

and 2K2.5 by four levels if the defendant committed the offense in

connection with a criminal street gang. In addition, the amendment

would increase the offense level provided under Sec. 2K2.5 by two to

seven levels, depending on the nature of the possession or use of the

firearm involved in the offense. With respect to the amendment to

Sec. 2K2.1, the enhancement would apply in addition to the existing

four-level enhancement for an offense involving a firearm that was used

or possessed in connection with another felony offense, or with

knowledge or reason to believe it would be used or possessed in such

connection. If a Chapter Three adjustment is adopted that provides a

general enhancement for offenses related to criminal street gangs, that

amendment would replace the portion of this amendment dealing with

criminal street gangs.

Proposed Amendment: Section 2K2.1(b) is amended by inserting the

following additional subdivision:

``(7) If the defendant committed the offense as a member of, on

behalf of, or in association with a criminal street gang, increase by 4

levels.''.

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

amended by inserting the following additional Note:

``20. `Criminal street gang' is defined as a group, club,

organization, or association of five or more persons whose members

engage, or have engaged within the past five years, in a continuing

series of crimes of violence and/or controlled substance offenses as

defined in Sec. 4B1.2 (Definitions of Terms Used in Section 4B1.1).''.

Section 2K2.5(b) is amended by inserting the following additional

subdivision:

``(2) If the defendant was convicted of violating 18 U.S.C.

Sec. 922(q) and (A) the firearm was discharged, increase by 7 levels;

(B) the firearm was otherwise used, increase by 6 levels; (C) the

firearm was brandished, increased by 5 levels; (D) the firearm was

loaded, increase by 3 levels; (E) an express threat of death was made

or ammunition was possessed, increase by 2 levels.

(3) If the defendant was convicted of violating 18 U.S.C.

Sec. 922(q) and committed the offense as a member of, on behalf of, or

in association with a criminal street gang, increase by 4 levels.''.

The Commentary to Sec. 2K2.5 captioned ``Application Notes'' is

amended in Note 4 by deleting ``federal facility, federal court

facility, or school zone'' and inserting in lieu thereof ``federal

facility or federal court facility.''

The Commentary to Sec. 2K2.5 captioned ``Application Notes'' is

amended by inserting the following additional Note:

``5. `Criminal street gang' is defined as a group, club,

organization, or association of five or more persons whose members

engage, or have engaged within the past five years, in a continuing

series of crimes of violence and/or controlled substance offenses as

defined in Sec. 4B1.2 (Definitions of Terms Used in Section 4B1.1).''.

Chapter Three, Part A (Victim-Related Adjustments)

27(A). Issue for Comment: Section 240002 of the Violent Crime

Control and Law Enforcement Act of 1994 directs the Commission to

ensure that the guidelines provide sufficiently stringent punishment

for a defendant convicted of a ``crime of violence'' against an

``elderly victim.'' The directive requires that the guidelines: (1)

provide for increasingly severe punishment commensurate with the degree

of physical harm caused to the elderly victim; (2) take appropriate

account of the vulnerability of the victim; and (3) provide enhanced

punishment for a [[Page 2443]] subsequent conviction for a crime of

violence against an elderly victim.

Currently, the guidelines account for victim harm in a number of

ways. For federal offenses that are most apt to cause physical harm

(e.g., assault, criminal sexual abuse, kidnapping, robbery), the

guidelines expressly require a higher sentence, regardless of the

victim's age, if the victim sustained bodily injury. Additionally,

Sec. 3A1.1 (Vulnerable Victim), provides a two-level upward adjustment

if the defendant knew or should have known that a victim was unusually

vulnerable due to, among other factors, the victim's age. Furthermore,

the guidelines, both generally, through Sec. 5K2.0 (Grounds for

Departure), and specifically, through, e.g., Sec. 5K2.8 (Extreme

Conduct) (involving unusually heinous, cruel, brutal, or degrading

conduct), invite courts to depart upward for circumstances that

potentially involve elderly victims. The guidelines also account for

the seriousness, recency, and relatedness of a defendant's prior record

of criminal conduct. See Chapter Four (Criminal History and Criminal

Livelihood).

The Commission invites comment on whether the guidelines provide

sufficiently stringent punishment for a defendant convicted of a crime

of violence against an elderly victim. If not, the Commission invites

comment on how, and to what extent, existing factors might be modified

as well as how, and to what extent, additional factors should be

considered.

(B). Synopsis of Proposed Amendment: This proposed amendment

implements the third criterion of the directive in section 240002,

pertaining to enhanced punishment for a defendant with a prior

conviction for a crime of violence against an elderly victim. This

amendment recommends a departure under Sec. 3A1.1 (Vulnerable Victim).

Proposed Amendment: The Commentary to Sec. 3A1.1 captioned

``Application Notes'' is amended by inserting the following additional

note:

``3. If (A) an adjustment applies under this section; and (B) 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.''.

(C). Issue for Comment: Section 250002 of the Violent Crime Control

and Law Enforcement Act of 1994 provides enhanced imprisonment

penalties of up to five years when certain fraud offenses involve

telemarketing conduct and enhanced imprisonment penalties of up to ten

years when a telemarketing fraud offense involves victimizing ten or

more persons over the age of 55 or targeting persons over the age of

55. Section 250003 directs the Commission to review and, if necessary,

amend the sentencing guidelines to ensure that victim-related

adjustments for fraud offenses against older victims (defined as over

the age of 55) are adequate.

Violations of fraud statutes are covered under Sec. 2F1.1 (Fraud

and Deceit), which increases penalties proportionately based on a

number of factors, including the amount of loss sustained by victims,

the sophistication of the offense, and whether particular types of harm

occurred. In addition, a two-level increase under Sec. 3A1.1

(Vulnerable Victim) applies if the fraud exploited vulnerable victims,

including victims who are vulnerable because of age.

The Commission invites comment on whether the current victim-

related adjustments are adequate to address such cases or whether

Sec. 2F1.1 or Sec. 3A1.1 should be amended. Focusing on Sec. 3A1.1 as a

possible vehicle for remedying any inadequately addressed concerns

regarding older victims, the Commission specifically invites comment as

to how this adjustment might best be amended. For example, should

commentary be added to establish a rebuttable presumption related to

age? If so, what threshold victim age should be equated with victim

vulnerability (recognizing that section 250002 uses age 55 for fraud

offenses while section 240002 uses age 65 for certain violent

offenses)? If such a presumption for older victims is established,

should there also be a counterpart presumptive age for vulnerability of

young victims (e.g., victims under age 16)? In lieu of a rebuttable

presumption, should Sec. 3A1.1 be amended to require an upward

adjustment in the offense level if the offense involved victim(s) older

or younger than the designated threshold ages? The Commission also

invites comment on whether the provisions concerning vulnerable victims

should be different for telemarketing fraud than other types of fraud

offenses.

Chapter Four, Part B (Career Offenders and Criminal Livelihood)

28. Issue for Comment: Section 70001 of the Violent Crime Control

and Law Enforcement Act of 1994 amends 18 U.S.C. Sec. 3559 to mandate a

sentence of life imprisonment for a defendant convicted of a ``serious

violent felony'' if the defendant has been convicted on separate prior

occasions in federal or state court of two or more serious violent

felonies or one or more serious violent felonies and one or more

serious drug offenses. The Commission invites comment on how it should

incorporate into the sentencing guidelines the amendments to 18 U.S.C.

Sec. 3559. In particular, the Commission invites comment as to whether

the career offender guidelines should be replaced with a new guideline

incorporating the current career offender provisions and the statutory

requirements of section 70001. Alternatively, the Commission could add

an application note to Sec. 4B1.1 directing the court to refer to 18

U.S.C. Sec. 3559 for offenses to which this statute applies. The

Commission also invites comment as to whether no action need be taken

because Sec. 5G1.1 already provides instructions on the application of

mandatory statutory penalties that conflict with the guidelines.

Chapter Five, Part C (Imprisonment)

29. Synopsis of Proposed Amendment: Section 80001(b) of the Violent

Crime Control and Law Enforcement Act of 1994 (the ``Safety Valve''

provision) authorized and directed 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. 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 Pub. L. No.

100-182, Sec. 21, set forth as an editorial note under 28 U.S.C.

Sec. 994.

Proposed Amendment: Pursuant to its ``permanent'' amendment

authority under 28 U.S.C. Sec. 994(p), the Commission proposes to

repromulgate Sec. 5C1.2, as set forth in the Guidelines Manual

effective November 1, 1994. See also 59 Fed. Reg. 52210-13.

Additional Issue for Comment: The Commission also invites comment

on any aspect of Sec. 5C1.2 or other guideline that should be modified

to effectuate congressional intent regarding the ``safety valve''

provision.

Chapter Five, Part E (Restitution, Fines, Assessments, Forfeitures)

30. Synopsis of Proposed Amendment: Section 40113 of the Violent

Crime Control and Law Enforcement Act of 1994 requires mandatory

restitution for sexual abuse and sexual exploitation of children

offenses under 18 U.S.C. Secs. 2241-2258. These provisions also require

that compliance with a restitution order be a condition of probation or

supervised release. When there is more than one [[Page 2444]] offender,

the court can apportion liability for payment of the full amount of

restitution. When the court finds that more than one victim has

sustained a loss requiring restitution, the court must provide full

restitution for each victim, but may provide different payment

schedules to the victims. A victim or the offender may petition the

court for modification of the restitution order in light of a change in

the economic circumstances of the victim. Although the sections are

termed ``mandatory restitution,'' the statutes provide for the court to

order less than the full amount or no restitution at all if the court

finds ``the economic circumstances of the defendant are not sufficient

to satisfy the order in the foreseeable future.'' These new mandatory

restitution provisions have broader definitions of loss than 18 U.S.C.

Sec. 3663, and apply ``notwithstanding section 3663, and in addition to

any civil or criminal penalty authorized by law.'' Congress has also

added similar mandatory restitution provisions for offenses involving

telemarketing fraud (18 U.S.C. Sec. 2327) and domestic violence (18

U.S.C. Sec. 2264). The proposed amendment alerts the courts to the new

statutory requirements and directs application of the statutory

provisions if there is a conflict between the statutory provisions and

the guidelines.

Proposed Amendment: 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. Secs. 2248 and

2259 (pertaining to convictions under 18 U.S.C. Secs. 2241-2258 in

connection with sexual abuse or exploitation of minors); 18 U.S.C.

Sec. 2327 (pertaining to convictions under 18 U.S.C. Secs. 1028-1029,

1341-1344 in connection with telemarketing fraud); 18 U.S.C. Sec. 2264

(pertaining to convictions under 18 U.S.C. Secs. 2261-2262 in

connection with domestic violence). To the extent that any of the

above-noted statutory provisions conflict with the provisions of this

guideline, the applicable statutory provision shall control.''.

Chapter Seven (Violations of Probation and Supervised Release)

31(A). Synopsis of Proposed Amendment: Section 110505 of the

Violent Crime Control and Law Enforcement Act of 1994, a version of

which was proposed by the Commission, amends 18 U.S.C. Sec. 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. The courts of appeal were split as to

whether a sentencing court had authority to reimpose a term of

supervised release upon revocation of the original term of supervised

release.

Chapter Seven of the Guidelines Manual contains the policy

statements that must be considered by courts when determining the

sentence to be imposed upon revocation of probation or supervised

release. The policy statements were originally drafted under the

assumption that reimposition of supervised release was possible. The

proposed amendment eliminates outdated statutory references in those

policy statements.

Proposed Amendment: Section 7B1.3(g)(2) is amended by deleting ``,

to the extent permitted by law,''.

The Commentary to Sec. 7B1.3 captioned ``Application Notes'' is

amended in Note 2 by deleting the second sentence and inserting in lieu

thereof:

``This statute, as amended by Public Law 103-322, effective

September 13, 1994, expressly authorizes the court to order an

additional, limited period of supervision following revocation of

supervised release and reimprisonment.'';

By deleting Note 3 in its entirety; and by renumbering the

remaining notes accordingly.

(B). Synopsis of Proposed Amendment: 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. Sec. 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. Sec. 3563(a)(3).

Similar requirements are made with respect to conditions of supervised

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

Section 110506 of the Violent Crime Control and Law Enforcement Act

of 1994, a version of which was proposed by the Commission, mandates

revocation of probation and a term of imprisonment if the defendant

unlawfully possesses a controlled substance (in violation of section

3563(a)(3)), possesses a firearm, or refuses to comply with drug

testing (in violation of section 3563(a)(4)). 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 made in 18

U.S.C. Sec. 3583(g) with respect to conditions of supervised release.

See discussion of section 110505, supra.

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 would

not cover a defendant who refuses to take the test.

In at least two circuits (the Fourth and Tenth), a defendant who

failed a drug test was presumed to have possessed the drugs and

consequently was subject to the mandatory revocation provisions.

However, in other circuits, failing a drug test was considered no more

than evidence of possession and a separate finding of possession was

required by the court. The apparent congressional view of the matter is

that failure of a drug test may or may not be subject to mandatory

revocation, as evidenced by the conditional statement ``if the results

[of the drug test] are positive [and] the defendant is subject to

possible imprisonment.'' 18 U.S.C. Sec. 3563(a)(4). It is not clear

whether the Fourth and Tenth Circuits will consider their view of the

issue superseded by this provision.

The proposed amendment adds commentary that expressly reflects the

statutory exception from mandatory revocation if the offender fails a

drug test and amends the Commentary to Chapter Seven to eliminate

outdated statutory references.

Proposed Amendment: The Commentary to Sec. 7B1.4 captioned

``Application Notes'' is amended by deleting Notes 5 and 6 in their

entirety [[Page 2445]] and by inserting in lieu thereof the following

new notes:

``5. Under 18 U.S.C. Sec. 3565(b), upon a finding that a defendant

violated a condition of probation by being in possession of a

controlled substance or firearm, or by refusing to comply with drug

testing, the court is required to `revoke the sentence of probation and

resentence the defendant under subchapter A [of title 18, Chapter 227]

to a sentence that includes a term of imprisonment.' Under 18 U.S.C.

Sec. 3583(g), upon a finding that a defendant violated a condition of

supervised release by being in possession of a controlled substance,

the court is required to `revoke the term of supervised release and

require the defendant to serve a term of imprisonment not to exceed the

maximum term of imprisonment authorized under 18 U.S.C.

Sec. 3583(e)(3).'

6. Under 18 U.S.C. Sec. 3563(a), `[t]he court shall consider

whether the availability of appropriate substance abuse treatment

programs, or an individual's current or past participation in such

programs, warrants an exception from the rule of section 3565(b) when

considering any action against a defendant who fails a drug test

administered in accordance with 18 U.S.C. Sec. 3563(a)(4).'''.

Appendix A (Statutory Index)

32. Synopsis of Proposed Amendment: This proposed amendment makes

Appendix A more comprehensive by adding new offenses enacted by the

Violent Crime Control and Law Enforcement Act of 1994 (Public Law 103-

322). The amendment addresses provisions found in sections 40221,

60005, 60009, 60012, 60013, 60015, 60019, 60021, 60023, 90106, 110103,

110503, 110517, 120003, 160001, 170201, 180201, 320108, 320601, 320602,

320603, 320902, of the Act. In addition, the amendment adds new

offenses enacted by section 11 of the Fresh Cut Flowers and Fresh Cut

Greens Promotion and Information Act of 1993 (Public Law 103-190),

section 202 of the Food Stamp Program Improvements Act of 1994 (Public

Law 103-225), sections 312 and 313 of the Social Security Independence

and Program Improvements Act of 1994 (Public Law 103-296), and sections

3, 4, and 5 of the Domestic Chemical Diversion Act of 1993 (Public Law

103-200). Furthermore, the amendment conforms Appendix A to revisions

in existing statutes made by the above Acts. Finally, the amendment

revises the titles of several offense guidelines to better reflect

their scope.

Proposed Amendment: Appendix A (Statutory Index) is amended by

inserting the following at the appropriate place by title and section:

``7 U.S.C. Sec. 2018(c) Sec. 2N2.1'',

``7 U.S.C. Sec. 6810 Sec. 2N2.1'',

``18 U.S.C. Sec. 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. Sec. 113(a)(1) 2A2.1'',

``18 U.S.C. Sec. 113(a)(2) 2A2.2'',

``18 U.S.C. Sec. 113(a)(3) 2A2.2'',

``18 U.S.C. Sec. 113(a)(5) 2A2.3'',

(Class A misdemeanor provisions only)

``18 U.S.C. Sec. 113(a)(6) 2A2.2'',

``18 U.S.C. Sec. 113(a)(7) 2A2.3'',

``18 U.S.C. Sec. 333 2F1.1'',

``18 U.S.C. Sec. 470 2B5.1, 2F1.1'',

``18 U.S.C. Sec. 668 2B1.1'',

``18 U.S.C. Sec. 880 2B1.1'',

``18 U.S.C. Sec. 922(w) 2K2.1'',

``18 U.S.C. Sec. 924(i) 2A1.1, 2A1.2'',

``18 U.S.C. Sec. 924(j) 2K2.1'',

``18 U.S.C. Sec. 924(m) 2K2.1'',

``18 U.S.C. Sec. 1033 2B1.1, 2F1.1, 2J1.2'',

``18 U.S.C. Sec. 1118 2A1.1, 2A1.2'',

``18 U.S.C. Sec. 1119 2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1'',

``18 U.S.C. Sec. 1120 2A1.1, 2A1.2, 2A1.3, 2A1.4'',

``18 U.S.C. Sec. 1121 2A1.1, 2A1.2'',

``18 U.S.C. Sec. 1716D 2Q2.1'',

``18 U.S.C. Sec. 2114(b) 2B1.1'',

``18 U.S.C. Sec. 2332a 2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A1.5, 2A2.1,

2A2.2, 2B1.3, 2K1.4'',

``18 U.S.C. Sec. 2258(a),(b) 2G2.1, 2G2.2'',

``18 U.S.C. Sec. 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. Sec. 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. Sec. 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. Sec. 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. Sec. 2423(b) 2A3.1, 2A3.2, 2A3.3 [, 2G1.2],

``21 U.S.C. Sec. 843(a)(9) 2D3.2'',

``21 U.S.C. Sec. 843(c) Sec. 2D3.1'',

``21 U.S.C. Sec. 849 Sec. 2D1.2'',

``21 U.S.C. Sec. 960(d)(3), (4) 2D1.11'',

``21 U.S.C. Sec. 960(d)(5) 2D1.13'',

``21 U.S.C. Sec. 960(d)(6) 2D3.2'',

``42 U.S.C. Sec. 1307(b) 2F1.1''.

In the line referenced to 18 U.S.C. Sec. 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. Sec. 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. Sec. 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. Sec. 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. Sec. 1153 by inserting

``2A2.3,'' immediately before ``2A3.1'';

In the line referenced to 18 U.S.C. Sec. 2114 by deleting ``2114''

and inserting in lieu thereof ``2114(a)'';

And in the line referenced to 18 U.S.C. Sec. 2423 by deleting

``2423'' and by inserting in lieu thereof ``2423(a)''.

Section 2D3.1 is amended in the title by inserting at the end ``;

Unlawful Advertising Relating to Schedule I Controlled 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''.

II. Amendments Relating to Drug Offense Guidelines and Role in the

Offense

This Part contains two approaches to the revision of the guidelines

for controlled substance offenses.

The premise of Approach 1 (proposed amendments 33-42) is that the

type and quantity of the controlled substance involved in the offense,

as adjusted by the defendant's role in the offense, is an important and

appropriate measure of the seriousness of the offense, but that the

Commission assigned too much weight to drug quantity in constructing

its initial guidelines. Therefore, the proposed amendments in Approach

1 would compress the Drug Quantity Table; limit its impact on lower-

level defendants; somewhat increase the weight given to weapons,

serious bodily injury, and leadership role; and address anomalies in

the offense levels assigned to ``crack'' offenses and marijuana-plant

offenses compared to other drug offenses. In addition, Approach 1

contains proposed amendments, addressing narrower issues, that would

improve and make fairer the operation of these guidelines. The proposed

amendments are set forth separately because they address different

issues and, for the most part, operate independently.

The premise of Approach 2 is that the use of drug quantity to

measure the seriousness of drug trafficking offenses should be

abandoned or severely limited. Amendment 43 displays this approach.

[[Page 2446]]

Approach 1

33. Synopsis of Proposed Amendment: In the 1994 amendment cycle,

the Commission took a first step in compressing the Drug Quantity Table

by eliminating levels 40 and 42 from the table. Three options for

compressing the Drug Quantity Table further are shown in Attachment 1.

The thrust of this proposed amendment is that although drug quantity

(in conjunction with role in the offense) is an appropriate factor in

assessing offense seriousness (drug quantity directly measures the

scale of the offense and potential for harm) and thus should be

retained, the Commission's current guidelines contain too many quantity

distinctions. That is, the drug table increases too quickly for small

differences in quantity, particularly at certain offense levels. Under

this proposal, the Drug Quantity Table would be compressed so that its

contribution to the determination of the offense level would be

somewhat reduced.

Three options are shown. Although the different options reflect

somewhat different rationales, the effect of each option would be to

reduce the number of gradations in the Drug Quantity Table, thereby

making the guidelines somewhat less sensitive to drug quantity. Note

that each one-level increment in offense level changes the final

guideline range by about 12 percent above level 19, and increments of

more than one level are compounded (e.g., a six-level change roughly

doubles or halves the final guideline range). Thus, reductions of 2, 4,

or 6 levels, as shown in the various options below, can have a

substantial impact on the final guideline range.

For ease of presentation, only the current and proposed offense

levels for heroin offenses are shown. Because the controlled substances

in the Drug Quantity Table are related by established ratios, the

offense levels for the other controlled substances would be conformed

accordingly.

Option A. When the Commission initially developed the Drug Quantity

Table, it keyed the offense level for 1 KG of heroin (ten-year

mandatory minimum) at level 32 (121-151 months for a first offender)

and 100 grams of heroin (five-year mandatory minimum) at level 26 (63-

78 months for a first offender) because these guideline ranges

included, or were close to, the five- and ten-year mandatory minimum

sentences. However, offense levels 30 (97-121 months) and 24 (51-63

months) also include the five- and ten-year mandatory minimum

sentences, as do offense levels 31 (108-135 months) and 25 (57-71

months). Option A displays how the heroin offense levels would look if

the Commission used the offense levels corresponding to the lowest

(rather than the highest) guideline ranges that include the statutory

minimum sentence. The drug table is compressed because offense levels

lower than level 22 are not changed (offense levels 22 and 24 from the

current Drug Quantity Table are combined).

Option B. The legislative history of the Anti-Drug Abuse Act of

1986 provides support for the proposition that the heartland of the

conduct that the Congress envisioned it was addressing with the ten-

year mandatory minimum was the ringleader in large scale drug offenses.

Senator Byrd, then the Senate Minority Leader, explained the intent

during floor debate:

For the kingpins--the masterminds who are really running these

operations--and they can be identified by the amount of drugs with

which they are involved--we require a jail term upon conviction. If

it is their first conviction, the minimum term is 10 years. * * *

Our proposal would also provide mandatory minimum penalties for the

middle-level dealers as well. Those criminals would also have to

serve time in jail. The minimum sentences would be slightly less

than those for the kingpins, but they nevertheless would have to go

to jail--a minimum of 5 years for the first offense. 132 Cong. Rec.

S. 14300 (Sept. 30, 1986).

See also 132 Cong. Rec. 22993 (Oct. 11, 1986) (statement of Rep.

Lafalce) (``the bill * * * acknowledge[s] that there are differing

degrees of culpability in the drug world. Thus, separate penalties are

established for the biggest traffickers, with another set of penalties

for other serious drug pushers''); H.R. Rep. No. 9-845, 99th Cong., 2d

Sess., pt. 1 at 11-17 (1986) (construing penalty provisions of a

comparable bill, H.R. 5394, similarly).

The typical or heartland role adjustment for kingpins in such large

scale offenses is four levels. Thus, the Commission's current drug

offense levels (when applied in conjunction with the role in the

offense enhancements), in effect, result in double counting. That is,

although Congress envisioned a level 32 offense for a first offender,

large-scale dealer with one kilogram of heroin (or level 30, see Option

A), the Commission has provided a level 36 for the heartland case

(level 32 from the Drug Quantity Table plus a four-level increase from

Sec. 3B1.1). Similarly, the mid-level dealer at whom the five-year

mandatory minimum was aimed likely will receive a two-level enhancement

for role in the offense. If so, the Commission has assigned an offense

level of 28 (26 from the Drug Quantity Table plus two levels from

Sec. 3B1.1) to the heartland case for which Congress envisioned an

offense level of 26 (or level 24, see discussion at Option A). Option B

shows how the heroin offense levels would look if adjusted to avoid

this double counting (pegging the reductions to levels 32 and 26, the

highest offense levels containing the mandatory minimum penalties).

Option C. This option combines Options A and B, pegging the

quantity for the ten-year mandatory minimum at level 26 (level 32 minus

two levels from Option A and four levels from Option B) and the

quantity for the five-year mandatory minimum at level 22 (level 26

minus two levels from Option A and two levels from Option B). It is to

be noted, however, that the resulting offense level for the five-year

mandatory minimum quantity minus a four-level adjustment for a minimal

role and a three-level adjustment for acceptance of responsibility

would produce a guideline range with a minimum of less than 24 months,

thus seemingly conflicting with the recent congressional instruction in

Section 80001 of the Violent Crime Control and Law Enforcement Act of

1994. In contrast, the lowest offense level provided under Options A

and B for such cases has a lower limit (24 months), consistent with

this congressional instruction.

Proposed Amendment: Section 2D1.1(c) is amended by revision of the

quantities associated with offense level 24 and greater as shown in the

following chart. Note: The amounts shown are the minimum quantities

associated with each offense level offense (e.g., in the current

guidelines, offense level 38 covers 30 KG or more of heroin). For

simplicity of presentation, only the offense levels for heroin offenses

are shown. The offense levels for other controlled substances would be

adjusted accordingly (e.g., under Sec. 2D1.1(c), 5 kg of cocaine has

the same offense level as 1 kg of heroin; the proposed guideline

offense levels would maintain this relationship).

Offense Levels for Heroin Distribution [[Page 2447]]

Offenses (Current Guidelines and Options A, B, C)

------------------------------------------------------------------------

Offense

level Current guidelines Option A Option B Option C

------------------------------------------------------------------------

38...... 30 KG........................... ........ ........ ........

36...... 10 KG........................... 30 KG... ........ ........

34...... 3 KG............................ 10 KG... 30 KG... ........

32...... 1 KG............................ 3 KG.... 10 KG... 30 KG.

30...... 700 G........................... 1 KG.... 3 KG.... 10 KG.

28...... 400 G........................... 700 G... 1 KG.... 3 KG.

26...... 100 G........................... 400 G... 300 G... 1 KG.

24...... 80 G............................ 100 G... 100 G... 300 G.

22...... 60 G............................ 60 G.... 60 G.... 100 G.

20...... 40 G............................ 40 G.... 40 G.... 40 G.

18...... 20 G............................ 20 G.... 20 G.... 20 G.

16...... 10 G............................ 10 G.... 10 G.... 10 G.

14...... 5 G............................. 5 G..... 5 G..... 5 G.

12...... less than 5G.................... less less less

than 5G. than 5G. than

5G.

------------------------------------------------------------------------

34. Synopsis of Proposed Amendment: This proposed amendment would

limit the impact of drug quantity in the case of defendants who qualify

for a mitigating role adjustment under Sec. 3B1.2 (Mitigating Role). A

number of commentators have argued that the current guidelines over-

punish low-level defendants when the sentence is driven in large part

by the quantity of drugs involved in the offense. These commentators

have recommended that, above a certain level, drug quantity should not

further increase the offense level for defendants with minor or minimal

roles. That is, for example, the difference between 20,000 kilos and

200,000 kilos of marijuana may be relevant to the offense level for the

major actors in the offense but not relevant in determining the

culpability and offense level for the deckhands or offloaders involved

with that quantity. Historically, the U.S. Parole Commission limited

the impact of drug quantity for low-level defendants in its parole

release guidelines.

Under this proposed amendment, if the defendant qualified for a

minor or minimal role, the base offense level from the Drug Quantity

Table would not exceed level [28] even if the drug quantity table

otherwise would have called for a higher offense level. In addition,

the applicable role adjustment from Sec. 3B1.2 (Mitigating Role) will

further reduce the offense level by two or four levels.

The bracketing of offense level 28 in the proposed amendment

indicates that the Commission requests comment on whether offense level

28 is the appropriate offense level for use in this amendment or

whether the offense level should be higher or lower.

Proposed Amendment: Section 2D1.1(a)(3) is amended by inserting the

following additional sentence at the end:

``Provided, that if the defendant qualifies for a mitigating role

adjustment under Sec. 3B1.2 (Mitigating Role), the base offense level

determined under subsection (c) below shall not be greater than level

[28].''.

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

amended by deleting Note 16 and Inserting in lieu thereof:

``16. Subsection (a)(3) provides that if a defendant qualifies for

a mitigating role adjustment under Sec. 3B1.2 (Mitigating Role), the

base offense level from subsection (c) shall not exceed level [28].

This limitation on the base offense level is in addition to, and not in

lieu of, the appropriate adjustment from Sec. 3B1.2 (Mitigating

Role).''.

Additional Issue for Comment: The Commission, at the request of the

Practitioners' Advisory Group, requests comment on whether this

amendment should set different maximum offense levels from the Drug

Quantity Table for defendants with a minor or minimal role depending

upon the type of controlled substance. Specifically, should offenses

involving heroin, cocaine, cocaine base, PCP, LSD, N-phenyl-N-[l-(2

phenylethyl)-4-piperidinyl] propanamide, marihuana, and methamphetamine

have a different maximum offense level from the Drug Quantity Table for

lower level defendants (e.g., level 28) than other controlled substance

(e.g., level 22)?

35(A). Synopsis of Proposed Amendment: This is a three-part

amendment to improve the operation of Sec. 3B1.1 (Aggravating Role).

First, this amendment revises Sec. 3B1.1(b) to apply when the defendant

managed or supervised at least four other participants. This

formulation avoids what appears to be an anomaly in the current

guideline in that a defendant who supervises only one participant in an

offense with a total of five participants receives a higher offense

level than a defendant who is the leader or organizer of an offense

involving four participants and manages or supervises all of the

participants. This formulation also is more consistent with that of 21

U.S.C. Sec. 848 (Continuing Criminal Enterprise) (which requires the

supervision of at least five other participants). Second, this

amendment revises Sec. 3B1.1(a) and (b) to delete the term ``otherwise

extensive,'' a term of uncertain meaning that seems to have been

intended to deal with certain non-criminally responsible participants

(see current Application Note 3). This issue is addressed more directly

by revised Application Note 1. Third, this amendment clarifies the

interaction of Secs. 3B1.1 and 3B1.2 in the case of a defendant who

would qualify for a minor or minimal role but for his/her exercise of

supervision over other minor or minimal participants. This interaction

has been the subject of inconsistent interpretation and at least one

circuit court decision, United States v. Tsai, 945 F2d. 155 (3rd Cir.

1992), has required that Secs. 3B1.1 and 3B1.2 be sequentially applied

to the same defendant.

Proposed Amendment: Section Sec. 3B1.1 is amended by deleting

``follows:'' and inserting in lieu thereof ``follows (Apply the

Greatest):''

Section 3B1.1(a) is amended by deleting ``a criminal activity that

involved five or more participants or was otherwise extensive'' and

inserting in lieu thereof ``the offense and the offense involved at

least four other participants''.

Section 3B1.1(b) is amended by deleting ``(but not an organizer or

leader) and the criminal activity involved five or more participants or

was otherwise extensive'' and inserting in lieu thereof ``of at least

four other participants in the offense''.

Section 3B1.1(c) is amended by deleting ``in any criminal activity

other than described in (a) or (b)'' and inserting in lieu thereof ``of

at least one other participant in the offense''.

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

amended in Note 1 by inserting the following additional paragraph at

the end:

``In an unusual case, a person may be recruited by a criminally

responsible participant for a significant role in the offense (i.e., a

role that is typically held by a criminally responsible participant),

but the person recruited may not be criminally responsible because the

person recruited (1) is unaware that an offense is being committed, (2)

has not yet reached the age of criminal responsibility, or (3) has a

mental deficiency or condition that negates criminal responsibility. In

such a case, an upward departure to the offense level that would have

applied had such person been a criminally responsible participant may

be warranted. For example, a person hired by a defendant to solicit

money for a charitable organization who was unaware that the charitable

organization was fraudulent, a person duped by a defendant into driving

the getaway car from a bank robbery who was unaware that a robbery was

being committed, or a child recruited by a defendant to assist in a

theft would meet the criteria for the application of this provision.''.

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

amended in [[Page 2448]] Note 2 by inserting the Following additional

paragraph at the end:

``A `manager' or `supervisor' means a person who managed or

supervised another participant, whether directly or indirectly.''.

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

amended by deleting Note 3 and inserting in lieu thereof:

``3. In the case of a defendant who would have merited a minor or

minimal role adjustment but for the defendant's supervision of other

minor- or minimal-role participants, do not apply an adjustment from

Sec. 3B1.1 (Aggravating Role). For example, an increase for an

aggravating role would not be appropriate for a defendant whose only

function was to offload a large shipment of marihuana and who

supervised other offloaders of that shipment. Instead, consider this

factor in determining the appropriate reduction, if any, under

Sec. 3B1.2 (Mitigating Role). For example, in the case of a defendant

who would have merited a reduction for a minimal role but for his or

her supervision of other minimal-role participants, a reduction for a

minor, rather than minimal, role might be appropriate. In the case of a

defendant who would have merited a reduction for a minor role but for

his or her supervision of other minimal- or minor-role participants, no

reduction for role in the offense might be appropriate.

The interaction of Secs. 3B1.1 and 3B1.2 is to be addressed in the

manner described above. Thus, if an adjustment from Sec. 3B1.1 is

applied, an adjustment from Sec. 3B1.2 may not be applied.''.

(B). Synopsis of Proposed Amendment: This proposed amendment

revises Sec. 3B1.2 (Mitigating Role) and the Introductory Commentary to

Chapter Three, Part B (Role in the Offense) to provide clearer

definitions of the circumstances under which a defendant qualifies for

a mitigating role reduction. In addition, Sec. 3B1.4 is deleted as

unnecessary. This amendment is derived from the work of two Commission

working groups that found significant problems with the clarity of the

current definitions of mitigating role.

Proposed Amendment: The Introductory Commentary to Chapter Three,

Part B is amended by deleting the second paragraph and inserting the

following in lieu thereof:

``For Sec. 3B1.1 (Aggravating Role) or Sec. 3B1.2 (Mitigating Role)

to apply, the offense must involve the defendant and at least one other

participant, although that other participant need not be apprehended.

When an offense has only one participant, neither Sec. 3B1.1 nor

Sec. 3B1.2 will apply. In some cases, some participants may warrant an

upward adjustment under Sec. 3B1.1, other participants may warrant a

downward adjustment under Sec. 3B1.2, and still other participants may

warrant no adjustment. Section 3B1.3 (Abuse of Position of Trust or Use

of Special Skill) may apply to offenses committed by any number of

participants.

Sections 3B1.1 (Aggravating Role) and 3B1.2 (Mitigating Role)

authorize an increase or decrease in offense level for a defendant who

has an aggravating or mitigating role, respectively, in the offense

conduct for which the defendant is accountable under Sec. 1B1.3

(Relevant Conduct). Sections 3B1.1 and 3B1.2 are designed to work in

conjunction with Sec. 1B1.3, which focuses upon the acts and omissions

in which the defendant participated (i.e., that the defendant

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

willfully caused) and, in the case of a jointly undertaken criminal

activity, the acts and omissions of others in furtherance of the

jointly undertaken criminal activity that were reasonably foreseeable.

For example, in a controlled substance trafficking offense, the

Chapter Two offense level for Defendant A, who arranged the importation

of 1000 kilograms of marihuana and hired a number of other participants

to assist him, is level 32. The same Chapter Two offense level applies

to Defendant B, a hired hand whose only role was to assist in unloading

the ship upon which the marihuana was imported; Defendant C, a hired

hand whose only role was as a deckhand on that ship; and Defendant D, a

hired hand whose only role was to act as a lookout for that unloading.

Defendant E, who purchased the marihuana from Defendant A and resold

it, acting alone, also receives the same Chapter Two offense level.

Although the quantity of marihuana involved for each of these

defendants (and thus the Chapter Two offense level) is identical,

courts traditionally have distinguished among such defendants in

imposing sentence to take into account their relative culpabilities

(based on their respective roles). Defendant A logically would be seen

as having the most culpable role because he organized the importation

and recruited and managed others. Defendants B, C, and D logically

would be seen as having substantially less culpable roles. Defendant E,

who acted alone, would receive no role adjustment. Consistent with

these principles, Secs. 3B1.1 (Aggravating Role) and 3B1.2 (Mitigating

Role) are designed to provide the court with the ability to make

appropriate adjustments in offense levels on the basis of the

defendant's role and relative culpability in the offense conduct for

which the defendant is accountable under Sec. 1B1.3 (Relevant Conduct).

The fact that the conduct of one participant warrants an upward

adjustment for an aggravating role, or warrants no adjustment, does not

necessarily mean that another participant must be assigned a downward

adjustment for a mitigating role. For example, Defendant F plans a bank

robbery and hires Defendant G, who commits the robbery. Both defendants

plead guilty to bank robbery, and each has a Chapter Two offense level

of 24. Defendant G may be less culpable than Defendant F, who will

receive an upward adjustment under Sec. 3B1.1 for employing Defendant

G. Nevertheless, Defendant G does not have a minimal or minor role in

the robbery because his role is not substantially less culpable than

that of a defendant who committed the same robbery acting alone.''.

Section 3B1.2(a) is amended by deleting ``in any criminal

activity''.

Section 3B1.2(b) is amended by deleting ``in any criminal

activity''.

Section 3B1.2 is amended by deleting ``In cases falling between (a)

and (b), decrease by 3 levels.''.

The Commentary to Sec. 3B1.2 captioned ``Application Notes'' is

amended by renumbering Note 4 as Note 7; and by deleting Notes 1-3 and

inserting in lieu thereof:

``1. (A) Minimal Role. For subsection (a) to apply, the defendant

must--

(1) be substantially less culpable than a person who committed the

same offense without the involvement of any other participant;

(2) ordinarily have all of the characteristics listed in

Application Note 2(a)-(d); and

(3) not be precluded from receiving this adjustment under

Application Notes 3-7.

(B) Minor Role. For subsection (b) to apply, the defendant must--

(1) be substantially less culpable than a person who committed the

same offense without the involvement of any other participant;

(2) ordinarily have most of the characteristics listed in

Application Note 2(a)-(d); and

(3) not be precluded from receiving this adjustment under

Application Notes 3-7.

(C) The difference between a defendant with a minimal role and a

minor role is one of degree, and depends upon the presence and

intensity of the types of factors described in Application Note 2(a)-

(d). [[Page 2449]]

(D) For the purposes of this section, the `same offense' means the

offense conduct (and Chapter Two offense level) for which the defendant

is accountable under Sec. 1B1.3 (Relevant Conduct). The determination

of whether a defendant is substantially less culpable than a person who

committed the same offense without the involvement of any other

participant requires a comparative assessment. In a drug trafficking

offense, for example, the role and culpability of a defendant who was

hired as a lookout for a drug transaction would be compared with the

role and culpability of the seller of the same quantity of the

controlled substance who acted alone. Similarly, the role and

culpability of a defendant who was hired to unload a shipment of

marihuana would be compared with that of an importer of the same

quantity of marihuana who acted alone. `Participant' is defined in the

Commentary to Sec. 3B1.1 (Aggravating Role).

Examples:

(1) Defendant A was hired by an unindicted participant to assist in

unloading a ship carrying 1,000 kilograms of marihuana (having a

Chapter Two offense level of Level 32). Defendant A had no decision-

making authority, was to be paid $2,000, had no supervisory authority

over another participant, and performed only unsophisticated tasks. The

appropriate comparison of relative culpability is with a defendant who,

acting alone, imported the same quantity of marihuana (such a defendant

would receive a Chapter Two offense level of Level 32 and no

aggravating or mitigating role adjustment). On the basis of this

comparison, Defendant A is a substantially less culpable participant.

(2) Defendant B was hired by Defendant C to commit an assault on

Defendant C's former business partner. Defendant B was told when and

where to find the victim alone, was instructed how to proceed, was to

be paid $3,000 to commit the offense, had no supervisory authority over

another participant, and performed only unsophisticated tasks. Although

Defendant B may be less culpable than Defendant C, Defendant B is not a

substantially less culpable participant than a defendant who, acting

alone, committed the same assault offense. Therefore, although

Defendant C receives an aggravating role adjustment for employing

Defendant B, Defendant B does not receive a mitigating role adjustment.

(E) Defendants who qualify as substantially less culpable

participants usually will fall into one of the following categories:

(1) a defendant who facilitates the successful commission of an

offense but is not essential to that offense (e.g., a lookout in a drug

trafficking offense);

(2) a defendant who provides essentially manual labor that is

necessary to the successful completion of an offense (e.g., a loader or

unloader of contraband, or a deckhand on a ship carrying contraband);

or

(3) a defendant who holds or transports contraband for the owner of

the contraband (such defendants provide a buffer that reduces the

likelihood of the owner being apprehended in possession of the

contraband).

(F) Because the determination of whether a defendant qualifies for

a mitigating (minimal or minor) role adjustment requires a comparative

judgment, the Commission recognizes that it will be heavily dependent

upon the facts of each case.

2. The following is a list of characteristics that ordinarily are

associated with a mitigating role:

(A) the defendant had no material decision-making authority or

responsibility;

(B) the total compensation or benefit to the defendant was very

small in comparison to the total profit typically associated with

offenses of the same type and scope;

(C) the defendant did not supervise other participant(s); and

(D) the defendant performed only unsophisticated tasks.

In addition, although not determinative, a defendant's lack of

knowledge or understanding of the scope and structure of the criminal

activity or of the activities of other participants may be indicative

of a mitigating role.

3. If the defendant received an adjustment from Sec. 3B1.1

(Aggravating Role), an adjustment for a minimal or minor role is not

authorized.

4. With regard to offenses involving contraband (including

controlled substances), a defendant who--

(A) sold, or played a substantial part in negotiating the terms of

the sale of, the contraband;

(B) had an ownership interest in any portion of the contraband; or

(C) financed any aspect of the offense,

shall not receive a mitigating role adjustment below the Chapter Two

offense level that the defendant would have received for the quantity

of contraband that the defendant sold, negotiated, or owned, or for

that aspect of the offense that the defendant financed because, with

regard to those acts, the defendant has acted as neither a minimal nor

a minor participant.

Thus, for example, a defendant who sells 100 grams of cocaine and

who is held accountable under Sec. 1B1.3 (Relevant Conduct) for only

that quantity is not eligible for a mitigating role adjustment. In

contrast, a defendant who sells 100 grams of cocaine, but who is held

accountable under Sec. 1B1.3 for a jointly undertaken criminal activity

involving five kilograms of cocaine, if otherwise qualified, may be

considered for a mitigating role adjustment in respect to that jointly

undertaken criminal activity, but the resulting offense level may not

be less than the Chapter Two offense level for the 100 grams of cocaine

that the defendant sold.

[5. A defendant who is entrusted with a quantity of contraband for

purposes of transporting such contraband (e.g., a courier or mule)

shall not receive a minimal role adjustment for the quantity of

contraband that the defendant transported. If such a defendant

otherwise qualifies for a mitigating role adjustment, consideration may

be given to a minor role adjustment.]

[6. A defendant who possessed a firearm or directed or induced

another participant to possess a firearm in connection with the offense

shall not receive a minimal role adjustment. If such a defendant

otherwise qualifies for a mitigating role adjustment, consideration may

be given to a minor role adjustment.]''.

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

amended by inserting the following additional note:

``8. Consistent with the overall structure of the guidelines, the

defendant bears the burden of persuasion in establishing entitlement to

a mitigating role adjustment. In determining whether a mitigating role

adjustment is warranted, the court should consider all of the available

facts, including any information arising from the circumstances of the

defendant's arrest that may be relevant to a determination of the

defendant's role in the offense. In weighing the totality of the

circumstances, a court is not required to find, based solely on the

defendant's bare assertion, that such a role adjustment is

warranted.''.

The Commentary to Sec. 3B1.2 captioned ``Background'' is amended by

deleting:

``This section provides a range of adjustments for a defendant who

plays a part in committing the offense that makes him substantially

less culpable than the average participant. The determination whether

to apply subsection (a) or (b) involves a determination that is heavily

dependent upon the facts of the particular case.'', [[Page 2450]]

And by inserting in lieu thereof:

``This section provides an adjustment for a defendant who has a

minor or minimal role in the offense. To qualify for a minor or minimal

role adjustment, the defendant must be substantially less culpable than

a hypothetical defendant who committed the same offense without the

involvement of any other indicted or unindicted participant. In a large

scale offense that cannot readily be committed by one person, the above

comparison would be made to a small number of equally culpable

participants who committed the offense without additional assistance.

In an offense involving importing, transporting, or storing contraband

(including controlled substances), the defendant's relative culpability

is to be assessed by comparison with a participant who owned the same

type and quantity of contraband because, in an offense involving

contraband that is committed without the involvement of any other

participant, the person committing the offense will be the owner of the

contraband.''.

Section 3B1.4 is deleted in its entirety.

36. Synopsis of Proposed Amendment: Some commentators have

suggested that if the Commission moderates the weight given to drug

quantity, it should also amend the guidelines to enhance the weight

given to firearm use, serious bodily injury, and organizer and leaders

in very large scale offenses.

Currently, under Sec. 2D1.1, possession of a weapon carries a 2-

level increase, which adds roughly 25% to the guideline range at higher

offense levels but little in absolute time at very low offense levels.

This amendment would address this issue by providing a minimum offense

level for weapon possession and added enhancements for firearm

discharge and serious bodily injury.

In addition, this amendment would provide an enhancement for

organizers and leaders of very large scale offenses; e.g., offenses

involving at least ten other participants. For consistency, this would

apply to all offenses, not just drug offenses. Two options are shown.

Option 1 would add an additional specific offense characteristic to

address this issue. Option 2 would address this issue by an application

note regarding the appropriate placement of the sentence within the

applicable guideline range.

Proposed Amendment: Section 2D1.1(b) is amended renumbering

subdivision (2) as subdivision (3); and by deleting subdivision (1) and

inserting in lieu thereof:

``(1) (Apply the greater):

(A) If the offense involved the discharge of a firearm, increase by

4 levels, but if the resulting offense level is less than level 20,

increase to level 20; or

(B) If the offense involved possession of a dangerous weapon

(including a firearm), increase by 2 levels; but if the resulting

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

(2) If a victim sustained serious bodily injury, other than that to

which subsection (a)(1) or (2) applies, increase by 2 levels.''.

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

amended by deleting Note 3 and inserting in lieu thereof:

``3. `Firearm,' `dangerous weapon,' and `serious bodily injury' are

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

`Discharge of a firearm' means the discharge of a firearm with intent

to injure or intimidate, or in circumstances that pose a risk a risk of

death or injury to a person.

The enhancement for weapon possession reflects the increased danger

of violence when drug traffickers possess weapons. If a dangerous

weapon is found in the same location as the controlled substance, there

shall be a rebuttable presumption that the offense involved the

possession of the weapon (i.e., that the possession of the weapon

facilitated, or was otherwise related to, the commission of the

offense).

The enhancements in subsection (b) also apply to offenses that are

referenced to Sec. 2D1.1; see Secs. 2D1.2(a)(1) and (2), 2D1.5(a)(1),

2D1.6, 2D1.7(b)(1), 2D1.8, 2D1.11(c)(1), 2D1.12(b)(1), and

2D2.1(b)(1).''.

Section 2D1.11(b) is amended by renumbering subdivision (2) as (3);

and by deleting subdivision (1) and inserting in lieu thereof:

``(1) (Apply the greater):

(A) If the offense involved the discharge of a firearm, increase by

4 levels, but if the resulting offense level is less than level 20,

increase to level 20; or

(B) If the offense involved possession of a dangerous weapon

(including a firearm), increase by 2 levels, but if the resulting

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

(2) If a victim sustained serious bodily injury, other than that to

which subsection (a)(1) or (2) applies, increase by 2 levels.''.

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

amended by deleting Note 1 and inserting in lieu thereof:

``1. `Firearm,' `dangerous weapon,' and `serious bodily injury' are

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

`Discharge of a firearm' refers to the discharge of a firearm with

intent to injure or in circumstances that pose a risk a risk of death

or injury to a person.

If a dangerous weapon is found in the same location as the

controlled substance, there shall be a rebuttable presumption that the

offense involved the possession of the weapon (i.e., that the

possession of the weapon facilitated, or was otherwise related to, the

commission of the offense).''.

[Option 1: Section 3B1.1 is amended by redesignating subsection

(a)-(c) as (b)-(d); and by inserting the following as subsection (a):

``(a) If the defendant was an organizer or leader of the offense,

and the offense involved at least ten other participants, increase by 5

levels.''.]

[Option 2: The Commentary to Sec. 3B1.1 captioned ``Application

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

``5. If the defendant was an organizer or leader of an offense

involving at least ten other participants, a sentence towards the upper

limit of the applicable guideline range typically will be

appropriate.''.]

Additional Issue for Comment: The Commission, at the request of the

Practitioners' Advisory Group, invites comment on an alternative to the

weapons portion of this enhancement in the following form:

``(1)(A) If a dangerous weapon (including a firearm) was actually

possessed by the defendant, or the defendant induced or directed

another participant to actually possess a dangerous weapon, increase by

2 levels.

(B) If the use of a dangerous weapon (including a firearm) was

threatened by the defendant, or the defendant induced or directed

another participant to threaten the use of a dangerous weapon, increase

by 3 levels.

(C) If a dangerous weapon (including a firearm) was actually

brandished or displayed by the defendant, or the defendant induced or

directed another participant to brandish or display a dangerous weapon,

increase by 4 levels.

(D) If a firearm was actually discharged by the defendant, or the

defendant induced or directed another participant to actually discharge

a firearm, increase by 5 levels.

2(A) If a dangerous weapon (including a firearm) was actually used

by the defendant and as a result someone other than the defendant

received bodily injury, or if the defendant induced or directed another

participant to actually [[Page 2451]] use a dangerous weapon and

someone other than that participant received bodily injury, increase by

2 levels. This increase should be applied in addition to any other

specific offense characteristic called for in this subsection.

(B) If a dangerous weapon (including a firearm) was actually used

by the defendant and as a result someone other than the defendant

received serious bodily injury, or if the defendant induced or directed

another participant to actually use a dangerous weapon and someone

other than that participant received serious bodily injury, increase by

3 levels. This increase should be applied in addition to any other

specific offense characteristic called for in this subsection.

(C) If a dangerous weapon (including a firearm) was actually used

by the defendant and as a result someone other than the defendant

received permanent or life-threatening bodily injury, or if the

defendant induced or directed another participant to actually use a

dangerous weapon and someone other than that participant received

permanent or life-threatening bodily injury, increase by 4 levels. This

increase should be applied in addition to any other specific offense

characteristic called for in this subsection.''.

37. Synopsis of Proposed Amendment: For offenses involving 50 or

more marihuana plants, the guidelines use an equivalency of one plant =

one kilogram of marihuana. This equivalency reflects the quantities

associated with the five- and ten-year mandatory minimum penalties in

21 U.S.C. Sec. 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. The

one plant = 100 grams of marihuana equivalency was selected as a

reasonable approximation of average yield taking into account (1)

studies reporting the actual yield of marihuana plants (37.5--412 grams

depending on growing conditions), (2) that for guideline purposes all

plants regardless of size are to be counted while, in reality, not all

plants will actually produce useable marihuana (e.g., some plants may

die of disease before maturity; when plants are grown outdoors, some

plants may be eaten 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. The one

plant to one kilogram ratio used in the statute has been criticized by

commentators as unrealistic. Courts have upheld this statutory ratio as

a legitimate exercise of legislative authority (although not on the

grounds that a marihuana plant actually produces anywhere close to one

kilogram of marihuana). This amendment would detach the equivalency

used in the guidelines from the one plant-one kilogram ratio used in

the statute and substitute the 100 grams per marihuana plant ratio

(currently used in the guidelines for cases involving fewer than 50

plants) for all cases.

Proposed 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,''.

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

the first sentence of the fourth 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. Sec. 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 in the last sentence of the fourth

paragraph by deleting ``, in the case of fewer than fifty marihuana

plants,''.

38. Issue for Comment: The 100 to 1 ratio between crack cocaine

base and cocaine used in the guidelines reflects the ratio found in 21

U.S.C. Sec. 841(b) with respect to the amounts that require a five- or

ten-year mandatory minimum sentence. This 100 to 1 ratio has been

criticized by a number of commentators as unwarranted. Congress has

directed the Commission to cond

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