Revisions to the Sentencing Guidelines for the United States Courts

UNITED STATES SENTENCING COMMISSION

Revisions to the Sentencing Guidelines for the United States

Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of final action regarding amendments to sentencing

guidelines and policy statements effective November 1, 1995.

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

SUMMARY: The Sentencing Commission hereby gives notice of several

amendments to policy statements and commentary made pursuant to its

authority under section 217(a) of the Comprehensive Crime Control Act

of 1984 (28 U.S.C. 994(a) and (u)). The Commission has reviewed

amendments submitted to Congress on May 1, 1995, that may result in a

lower guideline range and has designated one such amendment for

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

Guideline Range). An earlier amendment (effective November 1, 1994) was

also designated for inclusion in policy statement Sec. 1B1.10. Two

amendments, previously passed by the Commission, concerning crack

cocaine and money laundering were disapproved by Congress (Pub. L. 104-

38, 109 Stat. 34 (Oct. 30, 1995)).

DATES: The effective date of these policy statement and commentary

amendments is November 1, 1995.

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 U.S. Government.

The Commission is empowered by 28 U.S.C. 994(a) to promulgate

sentencing guidelines and policy statements for federal sentencing

courts. Sections 994(o) and (p) of title 28, United States Code,

further direct the Commission to periodically review and revise

guidelines and policy statements previously promulgated, and require

that guideline amendments be submitted to Congress for review. Absent

action of the Congress to the contrary, guideline amendments become

effective following 180 days of Congressional review on the date

specified by the Commission (i.e., November 1, 1995). Unlike new

guidelines and amendments to existing guidelines issued pursuant to 28

U.S.C. 994(a) and (p), sentencing policy statements, commentary, and

amendments thereto promulgated by the Commission are not required to be

submitted to Congress for 180 days' review prior to their taking

effect.

In connection with its ongoing review of the Guidelines Manual, the

Commission continues to welcome comment on any aspect of the sentencing

guidelines, policy statements, and official commentary. Comments should

be sent to: United States Sentencing Commission, One Columbus Circle,

N.E., Suite 2-500, Washington, DC 20002-8002, Attn: Office of

Communications.

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

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

Richard P. Conaboy,

Chairman.

Additional Revisions to the Guidelines Manual

1. The replacement guideline for Sec. 2H1.1 (see 60 FR 25082

(1995)) is amended by deleting Application Note 1 of the Commentary as

follows:

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

the offense guideline applicable to any conduct established by the

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

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

Chapter Two, Part H, Subpart 1).

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

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

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

cases, determine the number and nature of underlying offenses by

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

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

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

greater than, the alternative base offense level under subsection

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

each underlying offense as if contained in a separate count of

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

applicable, to determine the base offense level.'',

and inserting in lieu thereof:

``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, use the following comparative procedure to determine the

applicable base offense level: (i) determine the underlying offenses

encompassed within the count of conviction as if the defendant had been

charged with a conspiracy to commit multiple offenses. See Application

Note 5 of Sec. 1B1.2 (Applicable Guidelines); (ii) determine the

Chapter Two offense level (i.e., the base offense level, specific

offense characteristics, cross references, and special instructions)

for each such underlying offense; and (iii) compare each of the Chapter

Two offense levels determined above with the alternative base offense

level under subsection (a)(2), (3), or (4). The determination of the

applicable alternative base offense level is to be based on the entire

conduct underlying the count of conviction (i.e., the conduct taken as

a whole). Use the alternative base offense

[[Page 62290]]

level only if it is greater than each of the Chapter Two offense levels

determined above. Otherwise, use the Chapter Two offense levels for

each of the underlying offenses (with each underlying offense treated

as if contained in a separate count of conviction). Then apply

subsection (b) to the alternative base offense level, or to the Chapter

Two offense levels for each of the underlying offenses, as

appropriate.''.

This amendment clarifies the operation of this guideline in cases

involving multiple underlying offenses.

2. Section 5G1.3 is amended by deleting:

``(c) (Policy Statement) In any other case, the sentence for the

instant offense shall be imposed to run consecutively to the prior

undischarged term of imprisonment to the extent necessary to achieve a

reasonable incremental punishment for the instant offense.'',

and inserting in lieu thereof:

``(c) (Policy Statement) In any other case, the sentence for the

instant offense may be imposed to run concurrently, partially

concurrently, or consecutively to the prior undischarged term of

imprisonment to achieve a reasonable punishment for the instant

offense.''.

The Commentary to Sec. 5G1.3 captioned ``Application Notes'' is

amended in Note 1 by inserting ``Consecutive sentence--subsection (a)

cases.'' immediately before ``Under''; and by deleting ``where the

instant offense (or any part thereof)'' and inserting in lieu thereof

``when the instant offense''.

The Commentary to Sec. 5G1.3 captioned ``Application Notes'' is

amended by deleting:

``2. Subsection (b) (which may apply only if subsection (a) does

not apply), addresses cases in which the conduct resulting in the

undischarged term of imprisonment has been fully taken into account

under Sec. 1B1.3 (Relevant Conduct) in determining the offense level

for the instant offense. This can occur, for example, where a defendant

is prosecuted in both federal and state court, or in two or more

federal jurisdictions, for the same criminal conduct or for different

criminal transactions that were part of the same course of conduct.

When a sentence is imposed pursuant to subsection (b), the court

should adjust for any term of imprisonment already served as a result

of the conduct taken into account in determining the sentence for the

instant offense. Example: The defendant has been convicted of a federal

offense charging the sale of 30 grams of cocaine. Under Sec. 1B1.3

(Relevant Conduct), the defendant is held accountable for the sale of

an additional 15 grams of cocaine that is part of the same course of

conduct for which the defendant has been convicted and sentenced in

state court (the defendant received a nine-month sentence of

imprisonment, of which he has served six months at the time of

sentencing on the instant federal offense). The guideline range

applicable to the defendant is 10-16 months (Chapter Two offense level

of 14 for sale of 45 grams of cocaine; 2-level reduction for acceptance

of responsibility; final offense level of 12; Criminal History Category

I). The court determines that a sentence of 13 months provides the

appropriate total punishment. Because the defendant has already served

six months on the related state charge, a sentence of seven months,

imposed to run concurrently with the remainder of the defendant's state

sentence, achieves this result. For clarity, the court should note on

the Judgment in a Criminal Case Order that the sentence imposed is not

a departure from the guidelines because the defendant has been credited

for guideline purposes under Sec. 5G1.3(b) with six months served in

state custody.

3. Where the defendant is subject to an undischarged term of

imprisonment in circumstances other than those set forth in subsections

(a) or (b), subsection (c) applies and the court shall impose a

consecutive sentence to the extent necessary to fashion a sentence

resulting in a reasonable incremental punishment for the multiple

offenses. In some circumstances, such incremental punishment can be

achieved by the imposition of a sentence that is concurrent with the

remainder of the unexpired term of imprisonment. In such cases, a

consecutive sentence is not required. To the extent practicable, the

court should consider a reasonable incremental penalty to be a sentence

for the instant offense that results in a combined sentence of

imprisonment that approximates the total punishment that would have

been imposed under Sec. 5G1.2 (Sentencing on Multiple Counts of

Conviction) had all of the offenses been federal offenses for which

sentences were being imposed at the same time. It is recognized that

this determination frequently will require an approximation. Where the

defendant is serving a term of imprisonment for a state offense, the

information available may permit only a rough estimate of the total

punishment that would have been imposed under the guidelines. Where the

offense resulting in the undischarged term of imprisonment is a federal

offense for which a guideline determination has previously been made,

the task will be somewhat more straightforward, although even in such

cases a precise determination may not be possible.

It is not intended that the above methodology be applied in a

manner that unduly complicates or prolongs the sentencing process.

Additionally, this methodology does not, itself, require the court to

depart from the guideline range established for the instant federal

offense. Rather, this methodology is meant to assist the court in

determining the appropriate sentence (e.g., the appropriate point

within the applicable guideline range, whether to order the sentence to

run concurrently or consecutively to the undischarged term of

imprisonment, or whether a departure is warranted). Generally, the

court may achieve an appropriate sentence through its determination of

an appropriate point within the applicable guideline range for the

instant federal offense, combined with its determination of whether

that sentence will run concurrently or consecutively to the

undischarged term of imprisonment.

Illustrations of the Application of Subsection (c):

(A) The guideline range applicable to the instant federal offense

is 24-30 months. The court determines that a total punishment of 36

months' imprisonment would appropriately reflect the instant federal

offense and the offense resulting in the undischarged term of

imprisonment. The undischarged term of imprisonment is an indeterminate

sentence of imprisonment with a 60-month maximum. At the time of

sentencing on the instant federal offense, the defendant has served ten

months on the undischarged term of imprisonment. In this case, a

sentence of 26 months' imprisonment to be served concurrently with the

remainder of the undischarged term of imprisonment would (1) be within

the guideline range for the instant federal offense, and (2) achieve an

appropriate total punishment (36 months).

(B) The applicable guideline range for the instant federal offense

is 24-30 months. The court determines that a total punishment of 36

months' imprisonment would appropriately reflect the instant federal

offense and the offense resulting in the undischarged term of

imprisonment. The undischarged term of imprisonment is a six-month

determinate sentence. At the time of sentencing on the instant federal

offense, the defendant has served three months on the undischarged term

of imprisonment. In this case, a sentence of 30 months' imprisonment to

be served

[[Page 62291]]

consecutively to the undischarged term of imprisonment would (1) be

within the guideline range for the instant federal offense, and (2)

achieve an appropriate total punishment (36 months).

(C) The applicable guideline range for the instant federal offense

is 24-30 months. The court determines that a total punishment of 60

months' imprisonment would appropriately reflect the instant federal

offense and the offense resulting in the undischarged term of

imprisonment. The undischarged term of imprisonment is a 12-month

determinate sentence. In this case, a sentence of 30 months'

imprisonment to be served consecutively to the undischarged term of

imprisonment would be the greatest sentence imposable without departure

for the instant federal offense.

(D) The applicable guideline range for the instant federal offense

is 24-30 months. The court determines that a total punishment of 36

months' imprisonment would appropriately reflect the instant federal

offense and the offense resulting in the undischarged term of

imprisonment. The undischarged term of imprisonment is an indeterminate

sentence with a 60-month maximum. At the time of sentencing on the

instant federal offense, the defendant has served 22 months on the

undischarged term of imprisonment. In this case, a sentence of 24

months to be served concurrently with the remainder of the undischarged

term of imprisonment would be the lowest sentence imposable without

departure for the instant federal offense.

4. If the defendant was on federal or state probation, parole, or

supervised release at the time of the instant offense, and has had such

probation, parole, or supervised release revoked, the sentence for the

instant offense should be imposed to be served consecutively to the

term imposed for the violation of probation, parole, or supervised

release in order to provide an incremental penalty for the violation of

probation, parole, or supervised release (in accord with the policy

expressed in Secs. 7B1.3 and 7B1.4)'',

and inserting in lieu thereof:

``2. Adjusted concurrent sentence--subsection (b) cases. When a

sentence is imposed pursuant to subsection (b), the court should adjust

the sentence for any period of imprisonment already served as a result

of the conduct taken into account in determining the guideline range

for the instant offense if the court determines that period of

imprisonment will not be credited to the federal sentence by the Bureau

of Prisons. Example: The defendant is convicted of a federal offense

charging the sale of 30 grams of cocaine. Under Sec. 1B1.3 (Relevant

Conduct), the defendant is held accountable for the sale of an

additional 15 grams of cocaine, an offense for which the defendant has

been convicted and sentenced in state court. The defendant received a

nine-month sentence of imprisonment for the state offense and has

served six months on that sentence at the time of sentencing on the

instant federal offense. The guideline range applicable to the

defendant is 10-16 months (Chapter Two offense level of 14 for sale of

45 grams of cocaine; 2-level reduction for acceptance of

responsibility; final offense level of 12; Criminal History Category

I). The court determines that a sentence of 13 months provides the

appropriate total punishment. Because the defendant has already served

six months on the related state charge as of the date of sentencing on

the instant federal offense, a sentence of seven months, imposed to run

concurrently with the three months remaining on the defendant's State

sentence, achieves this result. For clarity, the court should note on

the Judgment in a Criminal Case Order that the sentence imposed is not

a departure from the guideline range because the defendant has been

credited for guideline purposes under Sec. 5G1.3(b) with six months

served in state custody that will not be credited to the federal

sentence under 18 U.S.C. Sec. 3585(b).

3. Concurrent or consecutive sentence--subsection (c) cases. In

circumstances not covered under subsection (a) or (b), subsection (c)

applies. Under this subsection, the court may impose a sentence

concurrently, partially concurrently, or consecutively. To achieve a

reasonable punishment and avoid unwarranted disparity, the court should

consider the factors set forth in 18 U.S.C. Sec. 3584 (referencing 18

U.S.C. Sec. 3553(a)) and be cognizant of:

(a) The type (e.g., determinate, indeterminate/parolable) and

length of the prior undischarged sentence;

(b) The time served on the undischarged sentence and the time

likely to be served before release;

(c) The fact that the prior undischarged sentence may have been

imposed in state court rather than federal court, or at a different

time before the same or different federal court; and

(d) Any other circumstance relevant to the determination of an

appropriate sentence for the instant offense.

4. Partially concurrent sentence. In some cases under subsection

(c), a partially concurrent sentence may achieve most appropriately the

desired result. To impose a partially concurrent sentence, the court

may provide in the Judgment in a Criminal Case Order that the sentence

for the instant offense shall commence (A) when the defendant is

released from the prior undischarged sentence, or (B) on a specified

date, whichever is earlier. This order provides for a fully consecutive

sentence if the defendant is released on the undischarged term of

imprisonment on or before the date specified in the order, and a

partially concurrent sentence if the defendant is not released on the

undischarged term of imprisonment by that date.

5. Complex situations. Occasionally, the court may be faced with a

complex case in which a defendant may be subject to multiple

undischarged terms of imprisonment that seemingly call for the

application of different rules. In such a case, the court may exercise

its discretion in accordance with subsection (c) to fashion a sentence

of appropriate length and structure it to run in any appropriate manner

to achieve a reasonable punishment for the instant offense.

6. Revocations. If the defendant was on federal or state probation,

parole, or supervised release at the time of the instant offense, and

has had such probation, parole, or supervised release revoked, the

sentence for the instant offense should be imposed to run consecutively

to the term imposed for the violation of probation, parole, or

supervised release in order to provide an incremental penalty for the

violation of probation, parole, or supervised release. See Sec. 7B1.3

(Revocation of Probation or Supervised Release) (setting forth a policy

that any imprisonment penalty imposed for violating probation or

supervised release should be consecutive to any sentence of

imprisonment being served or subsequently imposed).''.

The Commentary to Sec. 5G1.3 captioned ``Background'' is amended by

deleting:

``This guideline provides direction to the court when a term of

imprisonment is imposed on a defendant who is already subject to an

undischarged term of imprisonment. See 18 U.S.C. Sec. 3584. Except in

the cases in which subsection (a) applies, this guideline is intended

to result in an appropriate incremental punishment for the instant

offense that most nearly approximates the sentence that would have been

imposed had all the sentences been imposed at the same time.'',

and inserting in lieu thereof:

``In a case in which a defendant is subject to an undischarged

sentence of imprisonment, the court generally has

[[Page 62292]]

authority to impose an imprisonment sentence on the current offense to

run concurrently with or consecutively to the prior undischarged term.

18 U.S.C. Sec. 3584(a). Exercise of that authority, however, is

predicated on the court's consideration of the factors listed in 18

U.S.C. Sec. 3553(a), including any applicable guidelines or policy

statements issued by the Sentencing Commission.''.

This is a two-part amendment. First, this amendment clarifies the

application of subsections (a) and (b) of this guideline. Second, in

circumstances covered by the policy statement in subsection (c), this

amendment affords the sentencing court additional flexibility to

impose, as appropriate, a consecutive, concurrent, or partially

concurrent sentence in order to achieve a reasonable punishment for the

instant offense.

Authority to impose a partially concurrent sentence is found in the

Sentencing Reform Act of 1984 (SRA). In enacting 28 U.S.C.

Sec. 994(l)(1), Congress contemplated that 18 U.S.C. Sec. 3584 would

allow imposition of partially concurrent sentences, in addition to

fully concurrent or consecutive sentences. (``It is the Committee's

intent that, to the extent feasible, the sentences for each of the

multiple offenses be determined separately and the degree to which they

should overlap be specified.'') S. Rep. No. 225, 98th Cong., 1st Sess.

177 (1983). Without the ability to fashion such a sentence, the

instruction to the Commission in 28 U.S.C. Sec. 994(l)(1) to provide a

reasonable incremental penalty for additional offenses could not be

implemented successfully in certain situations, particularly when the

defendant's release date on an undischarged term of imprisonment cannot

be determined readily in advance (e.g., in the case of an indeterminate

sentence subject to parole release).

Prior to the SRA, only the Bureau of Prisons had the authority to

commence a federal sentence prior to the defendant's release from

imprisonment on a state sentence. See, e.g., United States v. Segal,

549 F.2d 1293, 1301 (9th Cir. 1977). SRA legislative history pertaining

to 18 U.S.C. Sec. 3584 indicates that this new section was intended to

authorize imposition of a federal prison sentence to run concurrently

or consecutively to a state prison sentence. ``This * * * [section

3584] changes the law that now applies to a person sentenced for a

Federal offense who is already serving a term of imprisonment for a

state offense.'' S. Rep. No. 225, supra at 127. ``Thus, it is intended

that this provision be construed contrary to the holding in United

States v. Segal. * * *'' Id. (at 127 n.314). See United States v.

Hardesty, 958 F.2d 910, 914 (stating that, under section 3584,

``Congress has expressly granted federal judges the discretion to

impose a sentence concurrent to a state prison term''), aff'd en banc,

977 F.2d 1347 (9th Cir. 1992).

3. Section 1B1.10(c) is amended by deleting ``and 506'' and

inserting in lieu thereof ``505, 506, and 516''.

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

in the fourth paragraph by inserting an asterisk immediately following

``old guidelines''; and by inserting, as a note, following the

Background Commentary:

``*So in original. Probably should be `to fall above the amended

guidelines'.''.

This amendment expands the listing in Sec. 1B1.10(d) to implement

the directive in 28 U.S.C. Sec. 994(u) in respect to guideline

amendments that may be considered for retroactive application. The

amendment also makes an editorial addition to the Commentary to

Sec. 1B1.10 (Retroactivity of Amended Guideline Range).

In addition, the Commission has updated the ``Historical Notes''

following the amended guideline sections, and has made a number of

additional minor conforming and editorial revisions to improve the

internal consistency and appearance of the Manual.

[FR Doc. 95-29514 Filed 12-4-95; 8:45 am]

BILLING CODE 2210-40-P