Sentencing Guidelines for United States Courts

UNITED STATES SENTENCING COMMISSION

Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of: (a) Final action regarding amendments to sentencing

guidelines and policy statements effective November 1, 1997; and (b) an

amendment to correct a clerical error in USSG Sec. 2K2.1(a)(3), as

amended by amendment 522 (November 1, 1995).

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SUMMARY: The Sentencing Commission hereby gives notice of: (a) Several

amendments to policy statements and commentary made pursuant to its

authority under 28 U.S.C. 994(a); (b)

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conforming and technical amendments to several amendments submitted to

Congress on May 1, 1997; and (c) an amendment to correct a clerical

error that omitted the word ``felony'' from the phrase ``prior felony''

in USSG Sec. 2K2.1(a)(3), as amended by amendment 522 (November 1,

1995).

DATES: The effective date of these amendments is November 1, 1997.

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Information

Specialist, Telephone: (202) 273-4590.

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

Richard P. Conaboy,

Chairman.

1. Amendment: The Commentary to new guideline Sec. 2A6.2 (see 62

F.R. 26615 (1997)) captioned ``Application Notes'' is amended in Note 1

by inserting at the beginning the following:

For purposes of this guideline--

`Bodily injury' and `dangerous weapon' are defined in the

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

Reason for Amendment: This amendment incorporates into Sec. 2A6.2

the definitions of ``bodily injury'' and ``dangerous weapon'' found in

Sec. 1B1.1 (Application Instructions). The definition of bodily injury

found in the guidelines differs from the definition of bodily injury in

18 U.S.C. 2266 that is applicable to interstate stalking and interstate

domestic violence offenses. The definition of ``bodily injury'' in 18

U.S.C. 2266 explicitly include sexual abuse, but the guideline

definition of ``bodily injury'' does not. However, the Commission is

fully aware that criminal sexual abuse often is part of a domestic

violence offense under 18 U.S.C. 2261 and 2262 and may be part of a

stalking offense under 18 U.S.C. 2261A. It is the view of the

Commission that the new guideline provides an adequate mechanism for

taking into account the occurrence of criminal sexual abuse in any of

these offenses. This is because the guideline definition of ``serious

bodily injury'' in Sec. 1B1.1 deems serious bodily injury--a more

serious gradient of bodily injury--to have occurred if the offense

involved conduct constituting criminal sexual abuse under 18 U.S.C.

2241 or 2242 or any similar offense under state law. Under the new

guideline, any offense that involved criminal sexual abuse almost

certainly will be subject to the cross reference to another offense

guideline and to the rule deeming such conduct to be serious bodily

injury (for purposes of applying a serious bodily injury enhancement in

that other guideline to the offense). Therefore, in all likelihood, the

sentence will be enhanced for the occurrence of criminal sexual abuse

because the case will be cross referenced to another guideline that

enhances for serious bodily injury.

2. Amendment: The Commentary to Sec. 2B4.1 captioned ``Statutory

Provisions'' is amended by deleting ``Secs. 11907(a), (b)'' and

inserting in lieu thereof ``Sec. 11902''.

The Commentary to Sec. 2N3.1 captioned ``Statutory Provisions'' is

amended by deleting ``15 U.S.C. Secs. 1983-1988, 1990c'' and inserting

in lieu thereof ``49 U.S.C. Secs. 32703-32705, 32709(b).''.

The Commentary to Sec. 2Q1.2 captioned ``Statutory Provisions'' is

amended by deleting ``Sec. 1809(b)'' and inserting in lieu thereof

``Sec. 60123(d)''.

Reason for Amendment: This amendment makes technical corrections to

Sec. 2B4.1 (Bribery in Procurement of Bank Loan and Other Commercial

Bribery), Sec. 2N3.1(Odometer Laws and Regulations), Sec. 2Q1.2

(Mishandling of Hazardous or Toxic Substances or Pesticides;

Recordkeeping, Tampering, and Falsification; Unlawfully Transporting

Hazardous Materials in Commerce), to reflect changes made to statutory

references when Congress codified Title 49 (Transportation), United

States Code. Pub. L. 103-272, Sec. 1(e), July 5, 1994, 108 Stat. 1356;

Pub. L. 104-88, Title I, Sec. 102(a), December 29, 1995, 109 Stat. 850.

3. Amendment: The Commentary to Sec. 2D1.11 captioned ``Application

Notes'' is amended in Note 4(a) in the fourth sentence by deleting

``14'' and inserting in lieu thereof ``16''.

Reason for Amendment: This amendment corrects a clerical error.

4. Amendment: The Commentary to Sec. 2K1.5 captioned ``Background''

is amended by deleting:

Except under the circumstances specified in 49 U.S.C. 46505(c),

the offense covered by this section is a misdemeanor for which the

maximum term of imprisonment authorized by statute is one year;

by deleting ``An'' and inserting in lieu thereof ``This guideline

provides an''; and by deleting ``is provided'' immediately after

``enhancement''.

Reason for Amendment: This amendment strikes background commentary

in guideline Sec. 2K1.5 that is no longer correct because of a recent

change in statutory penalties. Specifically, the Antiterrorism Act of

1996 increased the statutory maximum penalty for violations of 49

U.S.C. 46505(b) from not more than one year to not more than 10 years.

This increase changes the classification of an offense under subsection

(b) from a class A misdemeanor to a class D felony.

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

Notes'' is amended in Note 2 by deleting ``not'' after ``offense,'' in

the first sentence; by deleting ``(b)(1)(B), (b)(1)(C), and (b)(1)(D)''

and inserting in lieu thereof ``(B), (C), and (D)''; by deleting

``where'' and inserting in lieu thereof ``in a case in which''; by

inserting ``for that defendant'' after ``Maximum'''; by deleting

``twenty years and not thirty years'' and inserting in lieu thereof

``thirty years and not twenty years''; by deleting ``authorizes'' and

inserting in lieu thereof ``has''; and by deleting ``maximum term of

imprisonment'' and inserting in lieu thereof ``offense statutory

maximum''.

The Commentary to Sec. 4B1.1 captioned ``Background'' is amended by

deleting:

The legislative history of this provision suggests that the

phrase `maximum term authorized' should be construed as the maximum

term authorized by statute. See S. Rep. No. 225, 98th Cong., 1st

Sess. 175 (1983); 128 Cong. Rec. 26, 511-12 (1982) (text of `Career

Criminals' amendment by Senator Kennedy); id. at 26,515 (brief

summary of amendment); id. at 26,517-18 (statement of Senator

Kennedy).

Reason for Amendment: This amendment responds to United States v.

LaBonte, 117 S.Ct. 1673. In LaBonte, the Supreme Court held that the

way in which the Commission defined ``maximum term authorized'', for

purposes of fulfilling the requirement under 28 U.S.C. 994(h) to

specify sentences for certain categories of career offenders at or near

the maximum term authorized for those offenders, is inconsistent with

section 994(h)'s plain and unambiguous language and is therefore

invalid. The Commission defined ``maximum term authorized'' to mean the

maximum term authorized for the offense of conviction not including any

sentencing enhancement provisions that apply because of the defendant's

prior criminal record. The Supreme Court held that under section 994's

plain and unambiguous language, ``maximum term authorized'' must be

read to include all applicable statutory sentencing enhancements. The

proposed amendment makes a straightforward change to the commentary to

Sec. 4B1.1, the career offender guideline, to reflect the LaBonte

decision. Specifically, the definition of ``maximum term authorized''

is proposed to be changed to reflect that the ``maximum term

authorized'' includes all sentencing enhancements that apply because of

the defendant's prior criminal record.

6. Amendment: The Commentary to Sec. 2K1.3 captioned ``Application

Notes'' is amended in Note 2 by deleting ``Note 3'' and inserting in

lieu thereof ``Note 1''.

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

amended in Note 5 by deleting ``Note 3'' and inserting in lieu thereof

``Note 1''.

The Commentary to Sec. 7B1.1 captioned ``Application Notes'' is

amended in Note 2 by deleting ``Sec. 4B1.2(1)'' and inserting in lieu

thereof ``Sec. 4B1.2(a)''; and by deleting ``Notes 1 and 2'' and

inserting in lieu thereof ``Note 1''.

The Commentary to Sec. 7B1.1 captioned ``Application Notes'' is

amended in Note 3 by deleting ``Sec. 4B1.2(2)'' and inserting in lieu

thereof ``Sec. 4B1.2(b)''.

Reason for Amendment: This amendment conforms Secs. 2K1.3, 2K2.1

and 7B1.1 to Sec. 4B1.2, as amended November 1, 1997 (see 62 FR 26615

(1997)).

7. Amendment: The replacement guideline for Sec. 5B1.3 (see 62 FR

26615 (1997)) is amended in subsection (a)(2) by inserting the

following additional paragraph:

Note: Section 3563(a)(2) of Title 18, United States Code,

provides that, absent unusual circumstances, a defendant convicted

of a felony shall abide by at least one of the conditions set forth

in 18 U.S.C. 3563(b)(2), (b)(3), and (b)(13). Before the enactment

of the Antiterrorism and Effective Death Penalty Act of 1996, those

conditions were a fine ((b)(2)), an order of restitution ((b)(3)),

and community service ((b)(13)). Whether or not the change was

intended, the Act deleted the fine condition and renumbered the

restitution and community service conditions in 18 U.S.C. 3563(b),

but failed to make a corresponding change in the referenced

paragraphs under 18 U.S.C. 3563(a)(2). Accordingly, the conditions

now referenced are restitution ((b)(2)), notice to victims pursuant

to 18 U.S.C. 3555((b)(3)), and an order that the defendant reside,

or refrain from residing, in a specified place or area ((b)(13)).

The Commentary to Sec. 2X5.1 captioned ``Application Note'' is

amended in Note 1 by deleting: ``Sec. 5B1.4 (Recommended Conditions of

Probation and Supervised Release);''.

Section 5H1.3 is amended by deleting ``recommended condition (24)

at Sec. 5B1.4 (Recommended Conditions of Probation and Supervised

Release)'' and inserting in lieu thereof ``Secs. 5B1.3(d)(5) and

5D1.3(d)(5)''.

Section 5H1.4 is amended in the second paragraph by deleting

``recommended condition (23) at Sec. 5B1.4 (Recommended Conditions of

Probation and Supervised Release)'' and inserting in lieu thereof

``Sec. 5D1.3(d)(4)''; and in the third paragraph by deleting

``recommended condition (23) at Sec. 5B1.4 (Recommended Conditions of

Probation and Supervised Release)'' and inserting in lieu thereof

``Sec. 5B1.3(d)(4)''.

Section 8D1.3(a) is amended by deleting ``shall'' immediately after

``organization''.

Section 8D1.3(b) is amended by deleting ``a fine, restitution, or

community service,'' and inserting in lieu thereof ``(1) restitution,

(2) notice to victims of the offense pursuant to 18 U.S.C. 3555, or (3)

an order requiring the organization to reside, or refrain from

residing, in a specified place or area,'';

and by adding at the end:

Note: Section 3563(a)(2) of Title 18, United States Code,

provides that, absent unusual circumstances, a defendant convicted

of a felony shall abide by at least one of the conditions set forth

in 18 U.S.C. 3563 (b)(2), (b)(3), and (b)(13). Before the enactment

of the Antiterrorism and Effective Death Penalty Act of 1996, those

conditions were a fine ((b)(2)), an order of restitution ((b)(3)),

and community service ((b)(13)). Whether or not the change was

intended, the Act deleted the fine condition and renumbered the

restitution and community service conditions in 18 U.S.C. 3563(b),

but failed to make a corresponding change in the referenced

paragraphs under 18 U.S.C. 3563(a)(2). Accordingly, the conditions

now referenced are restitution ((b)(2)), notice to victims pursuant

to 18 U.S.C. 3555((b)(3)), and an order that the defendant reside,

or refrain from residing, in a specified place or area ((b)(13)).

Reason for Amendment: This amendment conforms Secs. 2X5.1, 5H1.3,

and 5H1.4 to the replacement guideline for Sec. 5B1.3 and the deletion

of Sec. 5B1.4 (see 62 FR 26615 (1997)). The amendment also adds a note

to Secs. 5B1.3 and 8D1.3 explaining an ambiguity created by the

enactment of the Antiterrorism and Effective Death Penalty Act of 1996,

Pub.L. 104-132, 110 Stat. 1227.

8. Amendment: Section 5K2.0 is amended in the third paragraph by

deleting ``immigration violations'' and inserting in lieu thereof

``other guidelines''; and by deleting ``for an immigration violation''

and inserting in lieu thereof ``under one of these other guidelines''.

Reason for Amendment: This amendment conforms Sec. 5K2.0 to

Sec. 2L1.1 (see 62 FR 26615 (1997)).

9. Amendment: The Commentary to Sec. 6A1.3 is amended in the first

paragraph by deleting ``will no longer exist'' and inserting in lieu

thereof ``no longer exists''; by deleting ``will usually have'' and

inserting in lieu thereof ``usually has'';

and by deleting:

Although lengthy sentencing hearings should seldom be necessary,

disputes about sentencing factors must be resolved with care. When a

reasonable dispute exists about any factor important to the

sentencing determination, the court must ensure that the parties

have an adequate opportunity to present relevant information.

Written statements of counsel or affidavits of witnesses may be

adequate under many circumstances. An evidentiary hearing may

sometimes be the only reliable way to resolve disputed issues. See

United States v. Fatico, 603 F.2d 1053, 1057 n.9 (2d Cir. 1979)

cert. denied, 444 U.S. 1073 (1980). The sentencing court must

determine the appropriate procedure in light of the nature of the

dispute, its relevance to the sentencing determination, and

applicable case law.

and inserting in lieu thereof:

Although lengthy sentencing hearings seldom should be necessary,

disputes about sentencing factors must be resolved with care. When a

dispute exists about any factor important to the sentencing

determination, the court must ensure that the parties have an

adequate opportunity to present relevant information. Written

statements of counsel or affidavits of witnesses may be adequate

under many circumstances. See, e.g., United States v. Ibanez, 924

F.2d 427 (2d Cir. 1991). An evidentiary hearing may sometimes be the

only reliable way to resolve disputed issues. See, e.g., United

States v. Jimenez Martinez, 83 F.3d 488, 494-95 (1st Cir. 1996)

(finding error in district court's denial of defendant's motion for

evidentiary hearing given questionable reliability of affidavit on

which the district court relied at sentencing); United States v.

Roberts, 14 F.3d 502, 521(10th Cir. 1993) (remanding because

district court did not hold evidentiary hearing to address

defendants' objections to drug quantity determination or make

requisite findings of fact regarding drug quantity); see also,

United States v. Fatico, 603 F.2d 1053, 1057 n.9 (2d Cir. 1979),

cert. denied, 444 U.S. 1073 (1980). The sentencing court must

determine the appropriate procedure in light of the nature of the

dispute, its relevance to the sentencing determination, and

applicable case law.

The Commentary to Sec. 6A1.3 is amended by deleting:

In determining the relevant facts, sentencing judges are not

restricted to information that would be admissible at trial. 18

U.S.C. 3661. Any information may be considered, so long as it has

``sufficient indicia of reliability to support its probable

accuracy.'' United States v. Marshall, 519 F. Supp. 751 (E.D. Wis.

1981), aff'd, 719 F.2d 887 (7th Cir. 1983); United States v. Fatico,

579 F.2d 707 (2d Cir. 1978) cert. denied, 444 U.S. 1073 (1980).

Reliable hearsay evidence may be considered. Out-of-court

declarations by an unidentified informant may be considered ``where

there is good cause for the nondisclosure of his identity and there

is sufficient corroboration by other means.'' United States v.

Fatico, 579 F.2d at 713. Unreliable allegations shall not be

considered. United States v. Weston, 448 F.2d 626 (9th Cir. 1971)

cert. denied, 404 U.S. 1061 (1972).

and inserting in lieu thereof:

In determining the relevant facts, sentencing judges are not

restricted to information that would be admissible at trial. See 18

U.S.C. 3661; see also United States v. Watts, 117 U.S. 633, 635

(1997) (holding that

[[Page 51923]]

lower evidentiary standard at sentencing permits sentencing court's

consideration of acquitted conduct); Witte v. United States, 515

U.S. 389, 399-401 (1995) (noting that sentencing courts have

traditionally considered wide range of information without the

procedural protections of a criminal trial, including information

concerning criminal conduct that may be the subject of a subsequent

prosecution); Nichols v. United States, 511 U.S. 738, 747-48 (1994)

(noting that district courts have traditionally considered

defendant's prior criminal conduct even when the conduct did not

result in a conviction). Any information may be considered, so long

as it has sufficient indicia of reliability to support its probable

accuracy. Watts, 117 U.S. at 637; Nichols, 511 U.S. at 748; United

States v. Zuleta-Alvarez, 922 F.2d 33 (1st Cir. 1990), cert. denied,

500 U.S. 927 (1991); United States v. Beaulieu, 893 F.2d 1177 (10th

Cir.), cert. denied, 497 U.S. 1038 (1990). Reliable hearsay evidence

may be considered. United States v. Petty, 982 F.2d 1365 (9th Cir.

1993), cert. denied, 510 U.S. 1040 (1994); United States v.

Sciarrino, 884 F.2d 95 (3d Cir.), cert. denied, 493 U.S. 997 (1989).

Out-of-court declarations by an unidentified informant may be

considered where there is good cause for the non-disclosure of the

informant's identity and there is sufficient corroboration by other

means. United States v. Rogers, 1 F.3d 341 (5th Cir. 1993); see also

United States v. Young, 981 F.2d 180 (5th Cir.), cert. denied, 508

U.S. 980 (1993); United States v. Fatico, 579 F.2d 707, 713 (2d Cir.

1978), cert. denied, 444 U.S. 1073 (1980). Unreliable allegations

shall not be considered. United States v. Ortiz, 993 F.2d 204 (10th

Cir. 1993).

Reason for Amendment: This amendment updates the case law

references in the commentary to Sec. 6A1.3 to include references to

sentencing guideline cases.

10. Amendment: Appendix A (Statutory Index) is amended by

inserting, in the appropriate place by title and section:

18 U.S.C. 514 2F1.1'';

18 U.S.C. 611 2H2.1'';

18 U.S.C. 669 2B1.1'';

18 U.S.C. 758 2A2.4'';

18 U.S.C. 1030(a)(7) 2B3.2'';

18 U.S.C. 1035 2F1.1'';

18 U.S.C. 1347 2F1.1'';

18 U.S.C. 1518 2J1.2'';

18 U.S.C. 1831 2B1.1'';

18 U.S.C. 1832 2B1.1'';

18 U.S.C. 2261A 2A6.2'';

21 U.S.C. 841(b)(7) 2D1.1'';

21 U.S.C. 960(d)(7) 2D1.11'';

47 U.S.C. 223(a)(1)(C) 2A6.1'';

47 U.S.C. 223(a)(1)(D) 2A6.1'';

47 U.S.C. 223(a)(1)(E) 2A6.1'';

49 U.S.C. 5124 2Q1.2'';

49 U.S.C. 32703 2N3.1'';

49 U.S.C. 32704 2N3.1'';

49 U.S.C. 32705 2N3.1'';

49 U.S.C. 32709(b) 2N3.1'';

49 U.S.C. 60123(d) 2B1.3'';

49 U.S.C. 80116 2F1.1'';

49 U.S.C. 80501 2B1.3'';

in the line referenced to ``15 U.S.C. 1281'' by inserting ``(for

offenses committed prior to July 5, 1994)'' immediately after

``2B1.3'';

in the line referenced to ``15 U.S.C. 1983'' by inserting ``(for

offenses committed prior to July 5, 1994)'' immediately after

``2N3.1'';

in the line referenced to ``15 U.S.C. 1984'' by inserting ``(for

offenses committed prior to July 5, 1994)'' immediately after

``2N3.1'';

in the line referenced to ``15 U.S.C. 1985'' by inserting ``(for

offenses committed prior to July 5, 1994)'' immediately after

``2N3.1'';

in the line referenced to ``15 U.S.C. 1986'' by inserting ``(for

offenses committed prior to July 5, 1994)'' immediately after

``2N3.1'';

in the line referenced to ``15 U.S.C. 1987'' by inserting ``(for

offenses committed prior to July 5, 1994)'' immediately after

``2N3.1'';

in the line referenced to ``15 U.S.C. 1988'' by inserting ``(for

offenses committed prior to July 5, 1994)'' immediately after

``2N3.1'';

in the line referenced to ``15 U.S.C. 1990c'' by inserting ``(for

offenses committed prior to July 5, 1994)'' immediately after

``2N3.1'';

by deleting ``18 U.S.C. 1008 2F1.1, 2S1.3'';

in the line referenced to ``18 U.S.C. 1030(a)(2)'' by deleting

``2F1.1'' and inserting in lieu thereof ``2B1.1'';

in the line referenced to ``18 U.S.C. 1030(a)(3)'' by deleting

``2F1.1'' and inserting in lieu thereof ``2B2.3'';

in the line referenced to ``18 U.S.C. 1030(a)(5)'' by deleting

``2F1.1'' and inserting in lieu thereof ``2B1.3'';

by deleting:

``18 U.S.C. 2258(a), (b) 2G2.1, 2G2.2'', and inserting in lieu

thereof:

``18 U.S.C. 2260 2G2.1, 2G2.2'';

in the line referenced to ``18 U.S.C. 2261'' by deleting ``2A1.1,

2A1.2, 2A2.1, 2A2.2, 2A2.3, 2A3.1, 2A3.4, 2A4.1, 2B3.1, 2B3.2, 2K1.4''

and inserting in lieu thereof ``2A6.2'';

in the line referenced to ``18 U.S.C. 2262'' by deleting ``2A1.1,

2A1.2, 2A2.1, 2A2.2, 2A2.3, 2A3.1, 2A3.4, 2A4.1, 2B3.1, 2B3.2, 2K1.4''

and inserting in lieu thereof ``2A6.2'';

in the line referenced to ``21 U.S.C. 959'' by inserting ``, 2D1.11''

immediately after ``2D1.1''.

in the line referenced to ``49 U.S.C. 121'' by inserting ``(for

offenses committed prior to July 5, 1994)'' immediately after

``2F1.1'';

in the line referenced to ``49 U.S.C. 1809(b)'' by inserting ``(for

offenses committed prior to July 5, 1994)'' immediately after

``2Q1.2'';

in the line referenced to ``49 U.S.C. App. Sec. 1687(g)'' by inserting

``(for offenses committed prior to July 5, 1994)'' immediately after

``2B1.3''; and

by deleting ``49 U.S.C. 14904 2B4.1''.

The Commentary to Sec. 2G2.1 captioned ``Statutory Provisions'' is

amended by deleting ``2258(a), (b)'' and inserting in lieu thereof

``2260''.

The Commentary to Sec. 2G2.2 captioned ``Statutory Provisions'' is

amended by deleting ``2258(a), (b)'' and inserting in lieu thereof

``2260''.

Section 2K2.1(a)(3) is amended by inserting ``felony'' before

``prior''.

Reason for Amendment: This amendment makes Appendix A (Statutory

Index) more comprehensive. This amendment adds references for

additional offenses, including offenses created by recently enacted

legislation. In addition, this amendment revises Appendix A to conform

to the revision of existing statutes and to reflect the codification of

Title 49, United States Code. This amendment also corrects clerical

errors in Secs. 2G2.1 and 2G2.2.

Finally, this amendment corrects a clerical error in

Sec. 2K2.1(a)(3), as amended by amendment 522, effective November 1,

1995. During the execution of that amendment, which equalized offense

levels for semiautomatic assault weapon possession with machinegun

possession, the word ``felony'' was inadvertently omitted from the

phrase ``prior conviction'' in subsection (a)(3).

[FR Doc. 97-26312 Filed 10-2-97; 8:45 am]

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