Part B of the proposed amendment would also amend 2A3.3 to provide a cross reference to 2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse) for cases where the offense involved criminal sexual abuse or attempt to commit criminal sexual abuse (as defined in 18 U.S.C. Upward Departure for Burglary Involving Violence. The Commission identified over 3,300 written opinions over the past five years in which federal courts have invoked, discussed, or applied the categorical approach. SeeUnited States In 2013, the Commission promulgated Amendment 775 to address two circuit conflicts over the 3E1.1(b) motion requirement. Garcon, Appendix A (Statutory Index).. (Consideration of possible amendments to the Synopsis of Proposed Amendment: 2020) (The career-offender guideline defines the term controlled substance offense broadly, and the definition is most plainly read to `include state-law offenses[.]' The Commission seeks comment on whether the limitation on the use of acquitted conduct is too broad or too narrow. 504 U.S. 181, 185-86 (1992) ( Thus, the court would not be required to determine whether an indivisible statute criminalizes conduct that does not meet the applicable definition; rather, the court would be required to determine only whether the Chapter Two guideline that covers the type of conduct most similar to the offense charged in the count of which the defendant was convicted is listed in 4B1.2. Descamps Part B of the proposed amendment would amend Appendix A (Statutory Index) to reference 18 U.S.C. The first new offense, codified at 18 U.S.C. 5845(a)), 2K2.4 (Using Certain Firearms, Ammunition, or Explosives During or in Relation to Certain Crimes); Mathis, 3. ; In this section, you will find the Commissions comprehensive archive of yearly amendments and Guidelines Manuals dating back to 1987. The First, Second, Ninth, Tenth, and D.C. If so, what are these practical issues or challenges? to Category I; by striking whose criminal history category is Category I after receipt of and inserting who receives; by striking criterion and inserting criminal history requirement; and by striking if, before receipt of the downward departure, the defendant had more than one criminal history point under 4A1.1 (Criminal History Category) and inserting if the defendant did not otherwise meet such Part G of the proposed amendment would amend Appendix A (Statutory Index) to reference 10 U.S.C. The Commission invites comment on whether the proposed amendmentin particular proposed subsections (b)(5) and (6)exceeds the Commission's authority under 28 U.S.C. Start Printed Page 7205 Option 2 also provides for an upward departure that would be applicable if the adjustment under new 4C1.1 substantially underrepresents the seriousness of the defendant's criminal history. 2023. 2241 or 2242). Until the ACFR grants it official status, the XML 220(b). If so, how should the Commission account for such status? The Commission seeks comment on whether the proposed alternative enhancement at 2D1.1(b)(13)(B) is appropriate to address the concerns raised by the Drug Enforcement Administration. WebOur Mission. Specifically, 6A1.3 provides for resolution of any reasonably disputed factors important to the sentencing determination. It eliminates the categorical approach from the guidelines by defining crime of violence and controlled substance offense based upon a list of guidelines, rather than offenses or elements of an offense. C, Amendment 798 (effective Aug. 1, 2016). The directive in the Bipartisan Safer Communities Act requires the Commission to ensure that defendants convicted of the new offenses at 18 U.S.C. Start Printed Page 7214 3572(d) to eliminate the requirement that if the court permits something other than the immediate payment of a fine or other monetary payment, the period for payment shall not exceed five years. Proposed 2023 Amendments to the Federal Sentencing Guidelines. Two options are presented. 4. 4B1.2(a) and Application Note 1 of the Commentary to 4B1.2 and inserting means a `crime of violence' as defined and determined in accordance with 4B1.2 (Definitions of Terms Used in Section 4B1.1); and in Note 3 by striking is defined in 4B1.2 (Definitions of Terms Used in Section 4B1.1). 6 the following new line references: The Commentary to 2B1.1 captioned Statutory Provisions is amended by striking 7 U.S.C. Start Printed Page 7213. 933(a)(2) or (a)(3). `Misdemeanor crime of domestic violence' has the meaning given that term in 18 U.S.C. Zero-Point Offenders in Zones A and B of the Sentencing Table. enhancement in 2K2.1 based on the criminal affiliations of the defendant. Application Note 8(A) of 2K2.1 provides that this 2-level enhancement should not apply if the base offense level is set at level 12 under 2K2.1(a)(7) ( If so, what should that specific offense characteristic provide and why? The Commentary to 2X5.2 captioned Statutory Provisions is amended by striking 18 U.S.C. 393 U.S. 286, 290 (1969) (defining extortion for purposes of 18 U.S.C. in or have engaged in criminal activity; and. In fiscal year 2021, there were approximately 17,500 offenders who received zero criminal history points, of whom approximately 13,200 had no prior convictions. Sentencing 922(d), 932, or 933(a)(1), as well as other offenses, including violations of 18 U.S.C. 2243(c) (discussed in Part A of the proposed amendment). U.S. Justice Department tells panel changes in law don't warrant Federal 2421A from the definitions of covered sex crime and sex offense for purposes of 4B1.5 and 5D1.2 is appropriate due to the nature of such offenses. 1. i.e., Sentencing Commission . . Start Printed Page 7234 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking); 2D1.9 (Placing or Maintaining Dangerous Devices on Federal Property to Protect Unlawful Production of Drugs); 2D1.11 (Unlawfully Distributing, Importing, Exporting, or Possessing Listed Chemicals)[;]. 18 U.S.C. Edling, Part A of the proposed amendment provides two options for amending subsection (b)(18) of 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) and subsection Register, and does not replace the official print version or the official 897 F.3d 66, 74 (2d Cir. Part C cert denied, The Commentary to 4B1.2 is amended by adding at the end the following: et seq.)..]. In addition, Part B brackets the possibility of amending the Commentary to 4B1.5 (Repeat and Dangerous Sex Offender Against Minors) and 5D1.2 (Term of Supervised Release) to exclude offenses under 18 U.S.C. January 2023. The proposed amendment brackets the possibility of adding a new category of extraordinary and compelling reasons to 1B1.13 relating to defendants who are victims of sexual assault or physical abuse resulting in serious bodily injury committed by a correctional officer or other employee or contractor of the Bureau of Prisons while in custody. The Commentary to 5G1.3 captioned Background is amended by striking 132 S. Ct. 1463, 1468 and inserting 566 U.S. 231, 236, and by striking 132 S. Ct. at 1468 and inserting 566 U.S. at 236. v. Section 70506(b) remained unchanged. Section 2D1.11(b)(6) is amended by striking subdivisions and inserting paragraphs. A violation of any of these prohibitions is punishable by a fine, not more than one year in prison, or both. 21 U.S.C. Part A of the proposed amendment would amend 3D1.2(d) to add 2G1.3 to the list of guidelines for which the covered offenses are specifically excluded from grouping. Should the Commission provide a different similar in nature and consequence $69.99 . 1227(b) and 1232(b). As part of its work on this priority, the Commission is publishing these issues for comment on alternative-to-incarceration programs to inform the Commission's consideration of this policy priority. See73 FR 39863 (July 11, 2008).. Lopez, The proposed amendment contains two parts (Part A and Part B). v. Synopsis of Proposed Amendment: See28 U.S.C. In response to the Foundations for Evidence-Based Policymaking Act of 2018, Part F of the proposed amendment would reference 44 U.S.C. Weban annual basis in the Commissions Annual Report and Sourcebook of Federal Sentencing Statistics.2 The Commission also reports preliminary data for an ongoing fiscal year in order to provide real-time analysis of sentencing practices in the federal courts. Sexual Conduct with a Minor; Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Sex Trafficking of Children; Use of Interstate Facilities to Transport Information about a Minor) are not grouped under 3D1.2(d). The Department of Justice has raised a concern that courts have held that state drug statutes that include an offense involving an offer to sell a controlled substance do not qualify as a controlled substance offense under 4B1.2(b) because such statutes encompass conduct that is broader than 4B1.2(b)'s definition of a controlled substance offense. 924(c) or 929(a) conviction, if the defendant also was convicted of the underlying offense, the sentences for the two prior convictions will be treated as a single sentence under 4A1.2(a)(2).; 3582(c)(1)(A) (Policy Statement)) and its corresponding commentary to implement the First Step Act of 2018, Public Law 115-391 (Dec. 21, 2018). These Supreme Court cases, however, involved statutory provisions ( Are the changes to the Commentary to 2K2.1 set forth in Options 1 and 2 adequate to address this new provision? 1951(b)(1). See The Commission seeks comment on whether the proposed reference is appropriate and whether any additional changes to the guidelines are required to account for section 1097(e) offenses. United States, 949 F.3d 81, 87-89 (2d Cir. ; by inserting at the beginning of Note 3 the following new heading: WebThe Commission promulgates guidelines that judges consult when sentencing federal offenders. 5335 or 5336 is the offense of conviction? The Commission promulgates sentencing guidelines and policy statements for federal sentencing courts pursuant to 28 U.S.C. 841(b) and 960(b) for defendants whose instant offense resulted in death or serious bodily injury, Synopsis of Proposed Amendment: Safety Valve Proposed 2023 Amendments to the Federal Sentencing If the Commission were to promulgate an option of 4C1.1 that excludes offenders with prior convictions not countable under Chapter Four, Part A (Criminal History), are there any practical issues or challenges that such an approach would present due to the availability of records documenting such convictions? Option 1 2421A, subsection (a)(2) would apply, and the defendant's base offense level would be level 14. Appendix A (Statutory Index).. Option 2 provides that the new enhancement would be applicable if the defendant is convicted under (i) 18 U.S.C. `Organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines,' as used in subsection (a)(4), means a defendant who receives an adjustment for an aggravating role under 3B1.1 (Aggravating Role). The career offender guideline includes convictions for inchoate offenses and offenses arising from accomplice liability, such as aiding and abetting, conspiring to commit, and attempting to commit a crime of violence and a controlled substance offense. e.g., See By contrast, the Fourth, Seventh, Eighth, and Tenth Circuits have held that a state conviction involving a controlled substance that is not identified in the CSA can qualify as a controlled substance offense under the guidelines. Bracketed text within a proposed amendment indicates a heightened interest on the Commission's part in comment and suggestions regarding alternative policy choices; for example, a proposed enhancement of [2][4][6] levels indicates that the Commission is considering, and invites comment on, alternative policy choices regarding the appropriate level of enhancement. 956 the following new line references: [Option 1 (Revised SOC Enhancement for Straw Purchase and Trafficking Offenses): Section 2K2.1(a)(4)(B) is amended by inserting after 18 U.S.C. 949 F.3d 81, 88 (2d Cir. The remaining 963 offenders (1.7% of all offenders) were convicted and sentenced after a trial, and of those offenders, 157 offenders (0.3% of all offenders) were acquitted of at least one offense. in paragraph (2) by striking (a)(4), or (a)(5) and inserting (a)(4), (a)(5), or (a)(6); in the paragraph after paragraph (4) by striking level 29 and inserting level [29][30][31]; and by adding at the end the following new paragraphs (8), (9), and (10): (A) is convicted under (i) 18 U.S.C. As a practical matter, it should not be necessary to apply this prong of subsection (a)(4) because (i) this section does not apply to a conviction under 21 U.S.C. 922(d)(10)-(11). The focus of inquiry set forth in the proposed approach is whether the defendant was convicted of a federal offense for which the applicable Chapter Two guideline is listed in 4B1.2 or a state offense for which the most appropriate offense guideline would have been one of the Chapter Two guidelines listed in 4B1.2 had the defendant been sentenced under the guideline in federal court. Commissioners are nominated by the President and confirmed by the Senate. ; by inserting at the beginning of Note 6 the following new heading: On April 27, 2023, the United States Sentencing Commission submitted to Congress an amendment to the federal sentencing guidelines revising two criminal history provisions found in Chapter Four of the Guidelines Manual. The enhancement at 2K2.1 currently does not apply to ghost guns. Ghost guns is the term commonly used to refer to firearms that are not marked by a serial number by which they can be identified and traced, and that are typically made by an unlicensed individual from purchased components (such as standalone parts or weapon parts kits) or homemade components. v. Annotated 2021 Chapter 5 Additional information pertaining to the proposed amendments and issues for comment described in this notice may be accessed through the Commission's website at Public Hearing. Victim of Assault. Wade 1B1.4 (Information to be Used in Imposing a Sentence (Selecting a Point Within the Guideline Range or Departing from the Guidelines)).. Part A of the proposed amendment addresses recurrent criticism of the categorical approach and modified categorical approach, which courts have applied in the context of 4B1.1 (Career Offender). 24(b)). 922(d), 932, or 933; or (ii) 18 U.S.C. Option 2 identifies the other offenses applicable to trafficking and straw purchasing as those for which Congress increased penalties in the Act. i.e., First, Part B of the proposed amendment would amend 2D1.1(a)(1) and split it into two subparagraphs. US v. Coplin-Benjamin, No. 21-1737 (1st Cir. 2023) :: Justia Alternatively, should the Commission exclude all sentences for possession of marihuana offenses from the criminal history score calculation, regardless of whether such offenses are punishable by a term of imprisonment or subject to criminal penalties in the jurisdiction in which the defendant was convicted at the time of sentencing for the instant offense? Currently, section 1320a-7b offenses are referenced in Appendix A to both 2B1.1 and 2B4.1. The Commission invites general comment on whether the . 250 to 2H1.1 (Offenses Involving Individual Rights), and offenses under 18 U.S.C. Currently, 2K2.1 provides at subsection (b)(4)(A) a 2-level enhancement if any firearm was stolen. Second, Part C of the proposed amendment would revise the provision to provide that the terms crime of violence and controlled substance offense include aiding and abetting, attempting to commit, or conspiring to commit any such offense, or any other inchoate offense or offense arising from accomplice liability involving a crime of violence or a controlled substance offense.. Appendix A (Statutory Index) is amended by inserting before the line referenced to 18 U.S.C. Option 1 Chapter Three, Part A is amended in the introductory commentary by striking Part and inserting part. Section 70506(b) provided that a person attempting or conspiring to violate section 70503 was subject to the same penalties as provided for violating section 70503. Sentencing Commission, a panel that advises the federal judiciary on criminal-sentencing issues, played an important role in the career of Supreme Court nominee Ketanji Brown Jackson. v. Circuits have held that a reduction may not be denied based on a suppression motion. . If not, how should the Commission take into account such aggravating factors? 2K1.3 (Unlawful Receipt, Possession, or Transportation of Explosive Materials), 2K1.4 (Arson); see, e.g., United States The background commentary to 1B1.3 explains that [c]onduct that is not formally charged or is not an element of the offense of conviction may enter into the determination of the applicable guideline sentencing range., The or 808 (effective Nov. 1, 2018). 2022) (government properly withheld motion where defendant caused [the government] to have to prepare for a two-day sentencing hearing; government did not act with an unconstitutional motive); [The phrase `actual or threatened force' refers to force that is sufficient to overcome a victim's resistance.]. Should the Commission instead revise 2B5.3 in general provide one or more specific offense characteristics or departure provisions to better account for this conduct? 31310. and inserting 18 U.S.C. 40A, 111. 333 are referenced in Appendix A (Statutory Index) to 2N2.1 (Violations of Statutes and Regulations Dealing With Any Food, Drug, Biological Product, Device, Cosmetic, or Agricultural Product). 1752 (Restricted building or grounds). The Commission seeks general comment on whether it should amend 2K2.1 to increase penalties for defendants who transfer a firearm to a minor. et seq. Dec. 23, 2022) (available here). The federal U.S. Finally, the proposed amendment would move current Application Note 3 (stating that, pursuant to 28 U.S.C. 2259(d)(4) to 2X5.2 (Class A Misdemeanors (Not Covered by Another Specific Offense Guideline)). A departure 88, No. 998 F.3d at 433. ], The Commentary to 5C1.1 captioned Application Notes is amended. ; In this section, you will find the Commissions comprehensive archive of yearly amendments and Guidelines Manuals dating back to 1987. A defendant's criminal history score is calculated pursuant to Chapter Four, Part A (Criminal History). (B) ; In this section, you will find the Commissions comprehensive archive of yearly amendments and Guidelines Manuals dating back to 1987. The Commentary to 4A1.3 captioned Application Notes is amended in Note 3 by striking the following: Section 207 of the Mandatory Victims Restitution Act of 1996, Public Law 104-132 (Apr. If so, what are those distinctions and how should they be accounted for in 2A3.3? 1503 & 1507. that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense. USSG 4B1.2(b). 922(g)][met the criteria set forth in the proviso of 18 U.S.C. U.S. Application Note 1(A) through (C) provides for three categories of extraordinary and compelling reasons, Applicability of Subsection (b)(18). 801 The Commission seeks comment on whether the guidelines should be amended to make this clarification by eliminating the two-step analysis some courts use in determining whether an inchoate offense is a crime of violence or a controlled substance offense. Should the guidelines adopt a different approach? If so, what should that specific offense characteristic provide and why? Two options are provided. at https://www.ussc.gov/policymaking/public-comment/public-comment-february-19-2019. Option 1 (Departure Provision for Status Points): The Commentary to 4A1.1 captioned Application Notes is amended in Note 4 by adding at the end the following new paragraph: There may be cases in which adding points under 4A1.1(d) results in a Criminal History Category that substantially overrepresents the seriousness of the defendant's criminal history. . In 2018, the Commission added a new application note to the Commentary to 5C1.1 (Imposition of a Term of Imprisonment), stating that if a defendant is a `nonviolent first offender and the applicable guideline range is in Zone A or B of the Sentencing Table, the court should consider imposing a sentence other than a sentence of imprisonment.' Synopsis of Proposed Amendment: denied, Section 924(k), as amended by the Act, prohibits smuggling or knowingly bringing into or out of the United States a firearm or ammunition, or attempting or conspiring to do so, with intent to engage in or to promote conduct that: (1) is punishable under the Controlled Substances Import and Export Act (21 U.S.C. Specifically, Congress revised section 70503(a) as follows: While on board a covered vessel, an individual may not knowingly or intentionally. Chapter Six, Part A is amended in the introductory commentary by striking Part and inserting part. 2X6.1 (Using Minors in Crimes of Violence). 2260(a) the following new line reference: The Commentary to 2X5.2 captioned Statutory Provisions is amended by striking 18 U.S.C. for use in converting a weapon into a machinegun which are firearms under section 5845(a) but not section 921(a)(3). 38 F.4th 341, 361 (3d Cir. responds to the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, Public Law 115-299 (2018), by amending Appendix A and the Commentary to 2X5.2. v. United States 2244(a)(2), with an enhanced maximum penalty of 20 years if such abusive sexual contact involved a child under the age of 12; (6) 2 years if the offense involved abusive sexual contact through the clothing of the type prohibited by 18 U.S.C. 922(a)(6), 922(d), or 924(a)(1)(A), a downward departure may be warranted if (A) none of the enhancements in subsection (b) apply, (B) the defendant was motivated by an intimate or familial relationship or by threats or fear to commit the offense and was otherwise unlikely to commit such an offense, and (C) the defendant received no monetary compensation from the offense.]. United States to qualify as a controlled substance offense under 4B1.2(b)). 1 gm of Phenylacetone (P2 Furthermore, ten percent (10.2%) of these 4,405 offenders had no other criminal history points. Controlled Substance Offense. Until 2016, the only substantive criminal offense included in chapter 705 of title 46 was codified in section 70503(a) and read as follows: An individual may not knowingly or intentionally manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance on board, (1) a vessel of the United States or a vessel subject to the jurisdiction of the United States; or. Start Printed Page 7209 United States Term of Imprisonment or Anticipated State Term of Imprisonment), to update the citation of Supreme Court cases. Any public comment received after the close of the comment period may not be considered. United States Sentencing Commission i.e., 2018) (Where the guideline present[ed] a very detailed `definition' of controlled substance offense that clearly excludes inchoate offenses, the Commentary's inclusion of such offenses had no grounding in the guidelines themselves.); 841(b)(1)(A) or (b)(1)(B), or 21 U.S.C. [The Commentary to 2D1.1 captioned Application Notes is amended in Note 21 by striking a minimum offense level of level 17 and inserting that the applicable guideline range shall not be less than 24 to 30 months of imprisonment.]. 16, that is punishable by imprisonment.. Both offenses apply to a representative payee. The Act added similar provisions to both chapters 83 and 84 of title 5 defining the term as a person (including an organization) designated under [section 8345(e)(1) or section 8466(c)(1)] to receive payments on behalf of a minor or an individual mentally incompetent or under other legal disability. 5 U.S.C. The proposed amendment would revise the categories of circumstances in which extraordinary and compelling reasons exist under the Commission's policy statement at 1B1.13. An issue for comment is also included. 994(a). U.S. Price, Shepard disjunctively, Issues for comment are also provided. *; * There are two methods for submitting public comment. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia. 39B (Unsafe operation of unmanned aircraft), prohibits the unsafe operation of drones. There may be cases in which a burglary involves violence, but does not qualify as a `crime of violence' as defined in 4B1.2(a) and, as a result, the defendant does not receive a higher offense level or higher Criminal History Category that would have applied if the burglary qualified as a `crime of violence.' Section 2D1.1(a)(1) is amended by striking the following: 43, if the defendant is convicted under 21 U.S.C. Specifically, should the Commission amend 2H3.1 to provide a higher or lower base offense level if 44 U.S.C. 2421A(b), is an aggravated form of the first. Part I of the proposed amendment would also amend the Commentary to 2B1.1 to reflect that 20 U.S.C. Departures and Variances 994(j).; by inserting at the beginning of Note 5 the following new heading: Use the PDF linked in the document sidebar for the official electronic format. 605 and inserting 44 U.S.C. If so, what other synthetic opioids should be included? United States, who have a qualifying prior conviction. 932 and 933. Part C of the proposed amendment responds to the FAA Reauthorization Act of 2018, Public Law 115-254 (2018). Section 39B(b) prohibits any person from knowingly operating an unmanned aircraft near an airport runway without authorization. Should the Commission provide additional or different criteria or examples of circumstances that constitute extraordinary and compelling reasons? See18 U.S.C. the material on FederalRegister.gov is accurately displayed, consistent with Upward Departure. The term `crime of violence' means any of the following offenses: Post-conviction matters (such as sentencing objections, appeal waivers, and related issues) are not considered `preparing for trial.' 5C1.2(b)(2)(requiring a minimum offense level of level 17 if the `statutorily required minimum sentence is at least five years').. In this section, you will find a comprehensive collection of research and data reports published on sentencing issues and other areas of federal crime. (2) Following the 2016 amendment, every circuit court addressing the issue has concluded that Hobbs Act robbery does not fall within 4B1.2's narrow definition of crime of violence.