80 FR 49314 - Sentencing Guidelines for United States Courts

UNITED STATES SENTENCING COMMISSION

Federal Register Volume 80, Issue 158 (August 17, 2015)

Pursuant to section 994(a), (o), and (p) of title 28, United States Code, the United States Sentencing Commission is considering promulgating an amendment to the sentencing guidelines and commentary. This notice sets forth the proposed amendment and a synopsis of the issues addressed by the amendment. This notice also sets forth a number of issues for comment, most of which are set forth together with the proposed amendment and one of which (regarding retroactive application of the proposed amendment) is set forth in the SUPPLEMENTARY INFORMATION portion of this notice. The proposed amendment and issues for comment in this notice are as follows: A proposed amendment to revise the ``crime of violence'' and ``drug trafficking offense'' definitions in the career offender guideline and the illegal reentry guideline, including (A) a proposed amendment to Sec. 4B1.2 (Definitions of Terms Used in Section 4B1.1) to delete the residual clause and revise the list of enumerated offenses in the ``crime of violence'' definition, (B) a proposed amendment to Sec. 4B1.2 to implement an additional requirement related to the state felony classification in determining whether an offense qualifies as a felony under Sec. 4B1.2, and (C) corresponding changes to the ``crime of violence'' and ``drug trafficking offense'' definitions in Sec. 2L1.2 (Unlawfully Entering or Remaining in the United States) to bring them more into parallel with the definitions at Sec. 4B1.2, and related issues for comment.

[Federal Register Volume 80, Number 158 (Monday, August 17, 2015)]
[Notices]
[Pages 49314-49318]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-20107]



[[Page 49314]]

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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of proposed amendment to the sentencing guidelines and 
commentary. Request for public comment, including public comment 
regarding retroactive application of the proposed amendment. Notice of 
public hearing.

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SUMMARY: Pursuant to section 994(a), (o), and (p) of title 28, United 
States Code, the United States Sentencing Commission is considering 
promulgating an amendment to the sentencing guidelines and commentary. 
This notice sets forth the proposed amendment and a synopsis of the 
issues addressed by the amendment. This notice also sets forth a number 
of issues for comment, most of which are set forth together with the 
proposed amendment and one of which (regarding retroactive application 
of the proposed amendment) is set forth in the SUPPLEMENTARY 
INFORMATION portion of this notice.
    The proposed amendment and issues for comment in this notice are as 
follows: A proposed amendment to revise the ``crime of violence'' and 
``drug trafficking offense'' definitions in the career offender 
guideline and the illegal reentry guideline, including (A) a proposed 
amendment to Sec.  4B1.2 (Definitions of Terms Used in Section 4B1.1) 
to delete the residual clause and revise the list of enumerated 
offenses in the ``crime of violence'' definition, (B) a proposed 
amendment to Sec.  4B1.2 to implement an additional requirement related 
to the state felony classification in determining whether an offense 
qualifies as a felony under Sec.  4B1.2, and (C) corresponding changes 
to the ``crime of violence'' and ``drug trafficking offense'' 
definitions in Sec.  2L1.2 (Unlawfully Entering or Remaining in the 
United States) to bring them more into parallel with the definitions at 
Sec.  4B1.2, and related issues for comment.

DATES: (1) Written Public Comment.--Written public comment regarding 
the proposed amendment and issues for comment set forth in this notice, 
including public comment regarding retroactive application of the 
proposed amendment, should be received by the Commission not later than 
November 12, 2015.
    (2) Public Hearing.--The Commission plans to hold a public hearing 
regarding the proposed amendment and issues for comment set forth in 
this notice. Further information regarding the public hearing, 
including requirements for testifying and providing written testimony, 
as well as the location, time, and scope of the hearing, will be 
provided by the Commission on its Web site at www.ussc.gov.

ADDRESSES: Public comment should be sent to the Commission by 
electronic mail or regular mail. The email address for public comment 
is [email protected]. The regular mail address for public comment 
is United States Sentencing Commission, One Columbus Circle NE., Suite 
2-500, Washington, DC 20002-8002, Attention: Public Affairs.

FOR FURTHER INFORMATION CONTACT: Jeanne Doherty, Public Affairs 
Officer, (202) 502-4502, [email protected].

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is 
an independent agency in the judicial branch of the United States 
Government. The Commission promulgates sentencing guidelines and policy 
statements for federal courts pursuant to 28 U.S.C. 994(a). The 
Commission also periodically reviews and revises previously promulgated 
guidelines pursuant to 28 U.S.C. 994(o) and submits guideline 
amendments to the Congress not later than the first day of May each 
year pursuant to 28 U.S.C. 994(p).
    The proposed amendment as presented in this notice contains 
bracketed text to indicate a heightened interest on the Commission's 
part in comment and suggestions regarding alternative policy choices 
and on whether the proposed provision is appropriate. The Commission 
has also highlighted certain issues for comment and invites suggestions 
on how the Commission should respond to those issues.
    The Commission requests public comment regarding whether, pursuant 
to 18 U.S.C. 3582(c)(2) and 28 U.S.C. 994(u), the proposed amendment 
published in this notice should be included in subsection (d) of Sec.  
1B1.10 (Reduction in Term of Imprisonment as a Result of Amended 
Guideline Range (Policy Statement)) as an amendment that may be applied 
retroactively to previously sentenced defendants. The Commission lists 
in Sec.  1B1.10(d) the specific guideline amendments that the court may 
apply retroactively under 18 U.S.C. 3582(c)(2). The background 
commentary to Sec.  1B1.10 lists the purpose of the amendment, the 
magnitude of the change in the guideline range made by the amendment, 
and the difficulty of applying the amendment retroactively to determine 
an amended guideline range under Sec.  1B1.10(b) as among the factors 
the Commission considers in selecting the amendments included in Sec.  
1B1.10(d). To the extent practicable, public comment should address 
each of these factors.
    Publication of a proposed amendment requires the affirmative vote 
of at least three voting members and is deemed to be a request for 
public comment on the proposed amendment. See Rules 2.2 and 4.4 of the 
Commission's Rules of Practice and Procedure. In contrast, the 
affirmative vote of at least four voting members is required to 
promulgate an amendment and submit it to Congress. See Rule 2.2; 28 
U.S.C. 994(p).
    Additional information pertaining to the proposed amendment 
described in this notice may be accessed through the Commission's Web 
site at www.ussc.gov.

    Authority: 28 U.S.C. 994(a), (o), (p), (x); USSC Rules of 
Practice and Procedure, Rule 4.4.

Patti B. Saris,
Chair.

1. ``Crime of Violence'' and Related Issues

    Synopsis of Proposed Amendment: This proposed amendment is a result 
of the Commission's multi-year study of statutory and guideline 
definitions relating to the nature of a defendant's prior conviction 
(e.g., ``crime of violence,'' ``aggravated felony,'' ``violent 
felony,'' ``drug trafficking offense,'' and ``felony drug offense'') 
and the impact of such definitions on the relevant statutory and 
guideline provisions (e.g., career offender, illegal reentry, and armed 
career criminal). See United States Sentencing Commission, ``Notice of 
Final Priorities,'' 79 FR 49378 (Aug. 20, 2014); ``Proposed Priorities 
for Amendment Cycle,'' 80 FR 36594 (June 25, 2015).
    The proposed amendment is also informed by the Supreme Court's 
recent decision in Johnson v. United States, __U.S. __, 135 S. Ct. 2551 
(2015), relating to the statutory definition of ``violent felony'' in 
18 U.S.C. 924(e), which held that an increased sentence under the 
``residual clause'' of that definition violates due process. As the 
Court explained in Johnson, the term ``residual clause'' refers to the 
closing words of the statutory definition of ``violent felony.'' Under 
those closing words, a crime is a ``violent felony'' if it ``otherwise 
involves conduct that presents a serious potential risk of physical 
injury to another.'' See 18 U.S.C. 924(e)(2)(B)(ii) [emphasis added].

[[Page 49315]]

This clause, the Court held in Johnson, is unconstitutionally vague. 
The Court's holding did not implicate other parts of the statutory 
definition; a crime may still qualify as a ``violent felony'' under the 
statute if, for example, it ``has as an element the use, attempted use, 
or threatened use of physical force against the person of another'' 
(sometimes referred to as the ``elements'' clause) or if it ``is 
burglary, arson, or extortion'' (sometimes referred to as the 
``enumerated'' clause).

Procedure

    The Commission's ordinary practice with amendments to the 
sentencing guidelines is to publish proposals for comment in January, 
hold hearings in February or March, promulgate amendments in April, and 
submit final amendments to Congress on or shortly before May 1, to take 
effect on November 1. However, the Commission's organic statute 
authorizes the Commission to promulgate and submit amendments at any 
point after the beginning of a session of Congress and to specify an 
effective date sooner than November 1. See 28 U.S.C. 994(p). Publishing 
this proposed amendment at this time allows for the possibility that an 
amendment could be promulgated and submitted to Congress earlier than 
May 1 and could take effect earlier than November 1.
    Accordingly, the Commission anticipates that in Fall 2015 it will 
hold a hearing on the proposed amendment and that in January 2016 it 
may, if appropriate, promulgate a final amendment and submit it to 
Congress (to take effect earlier than November 1) or publish a revised 
version of this proposed amendment for an additional period of comment.

Parts of the Proposed Amendment

    The proposed amendment contains several parts. The Commission is 
considering whether to promulgate any one or more of these parts, as 
they are not necessarily mutually exclusive. Issues for comment are 
also included.

A. Elimination of ``Crime of Violence'' Residual Clause and Related 
Revisions to Definition of ``Crime of Violence''

    The guidelines definition of ``crime of violence'' in Sec.  
4B1.2(a) was modeled after the statutory definition of ``violent 
felony.'' This guidelines definition is used in determining whether a 
defendant is a career offender under Sec.  4B1.1 (Career Offender), and 
is also used in certain other guidelines. See, e.g., Sec. Sec.  2K1.3 
(Unlawful Receipt, Possession, or Transportation of Explosive 
Materials; Prohibited Transactions Involving Explosive Materials), 
2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or 
Ammunition; Prohibited Transactions Involving Firearms and 
Ammunitions), 2S1.1 (Laundering of Monetary Instruments; Engaging in 
Monetary Transactions in Property Derived from Unlawful Activity), 
4A1.2 (Definitions and Instructions for Computing Criminal History), 
and 5K2.17 (Semiautomatic Firearms Capable of Accepting Large Quantity 
Magazine (Policy Statement)).
    While the statutory definition of ``violent felony'' in section 
924(e) and the guidelines definition of ``crime of violence'' in Sec.  
4B1.2 are not identical in all respects -- for example, they have 
different ``enumerated'' clauses -- their residual clauses are 
identical. The proposed amendment amends Sec.  4B1.2 to delete the 
residual clause.
    In addition, the proposed amendment amends Sec.  4B1.2 to clarify 
and revise the list of ``enumerated'' offenses. While some offenses 
covered by the definition are listed in the guideline (such as burglary 
of a dwelling, arson, and extortion), many other offenses covered by 
the definition are listed in the commentary instead (e.g., murder, 
kidnapping, aggravated assault, robbery). The proposed amendment makes 
some revisions to the list of enumerated offenses, moves all enumerated 
offenses to the guideline, and provides definitions for the enumerated 
offenses in the commentary.

B. Use of the State Felony Classification in Determining Whether an 
Offense Qualifies as a ``Felony'' Under Sec.  4B1.2

    Under the career offender guideline, the court must analyze both 
the instant offense of conviction and the defendant's prior offenses of 
conviction. To be a career offender, the court must find (1) that the 
instant offense is a felony that is a crime of violence or a controlled 
substance offense, and (2) that the defendant has at least two prior 
felony convictions of either a crime of violence or a controlled 
substance offense. See Sec.  4B1.1(a), 4B1.2; see also 28 U.S.C. 
994(h).
    To implement the requirement that the offense be a ``felony,'' the 
definitions in Sec.  4B1.2(a) and (b) specify that the instant offense 
(whether a ``crime of violence'' or a ``controlled substance offense'') 
must have been an offense under federal or state law, punishable by 
imprisonment for a term exceeding one year. The proposed amendment adds 
an additional requirement: the offense must also have been classified 
[at the time defendant was initially sentenced] as a felony (or 
comparable classification) under the laws of the jurisdiction in which 
the defendant was convicted. If the jurisdiction does not have a 
``felony'' classification, the offense must have been given a 
classification comparable to a felony classification.

C. Corresponding Changes to the Illegal Reentry Guideline, Sec.  2L1.2

    The definition of ``crime of violence'' in Sec.  4B1.2 is not the 
only definition of ``crime of violence'' in the guidelines. In 
particular, Sec.  2L1.2 (Unlawfully Entering or Remaining in the United 
States) sets forth a definition of ``crime of violence'' that contains 
a somewhat different list of ``enumerated'' offenses and does not 
contain a ``residual'' clause. It also sets forth a definition of 
``drug trafficking offense'' that is somewhat different from the 
definition of ``controlled substance offense'' in Sec.  4B1.2.
    The proposed amendment would revise the definitions of ``crime of 
violence'' and ``drug trafficking offense'' in Sec.  2L1.2 to bring 
them more into parallel with the definitions in Sec.  4B1.2. Under the 
proposed amendment, the definitions in Sec.  2L1.2 would generally 
follow the definitions in Sec.  4B1.2, as revised by Parts A and B of 
the proposed amendment.

Proposed Amendment:

(A) ``Crime of Violence'' in Sec.  4B1.2

    Section Sec.  4B1.2(a) is amended by striking paragraph (2) as 
follows:
    `` (2) is burglary of a dwelling, arson, or extortion, involves use 
of explosives, or otherwise involves conduct that presents a serious 
potential risk of physical injury to another.'';

and inserting the following:

    `` (2) is murder, voluntary manslaughter, kidnapping, aggravated 
assault, a forcible sex offense, robbery, [burglary of a 
dwelling][burglary], arson, or extortion, or involves use of 
explosives.''.
    The Commentary to Sec.  4B1.2 captioned ``Application Notes'' is 
amended in Note 1 by striking the second and third undesignated 
paragraphs as follows:
    `` `Crime of violence' includes murder, manslaughter, kidnapping, 
aggravated assault, forcible sex offenses, robbery, arson, extortion, 
extortionate extension of credit, and burglary of a dwelling. Other 
offenses are included as `crimes of violence' if (A) that offense has 
as an element the use, attempted use, or threatened use of physical 
force against the person of another, or (B) the conduct set forth 
(i.e., expressly charged) in the count of which the defendant was 
convicted involved use of explosives (including any explosive material 
or

[[Page 49316]]

destructive device) or, by its nature, presented a serious potential 
risk of physical injury to another.
    `Crime of violence' does not include the offense of unlawful 
possession of a firearm by a felon, unless the possession was of a 
firearm described in 26 U.S.C. 5845(a). Where the instant offense of 
conviction is the unlawful possession of a firearm by a felon, Sec.  
2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or 
Ammunition; Prohibited Transactions Involving Firearms or Ammunition) 
provides an increase in offense level if the defendant had one or more 
prior felony convictions for a crime of violence or controlled 
substance offense; and, if the defendant is sentenced under the 
provisions of 18 U.S.C. 924(e), Sec.  4B1.4 (Armed Career Criminal) 
will apply.'',

and by striking the fifth undesignated paragraph as follows:

    `` Unlawfully possessing a firearm described in 26 U.S.C. 5845(a) 
(e.g., a sawed-off shotgun or sawed-off rifle, silencer, bomb, or 
machine gun) is a `crime of violence'.'';

and by redesignating Notes 2 and 3 as Notes 3 and 4, respectively, and 
by inserting after Note 1 the following new Note 2:

    ``2. Enumerated Offenses under Subsection (a).--For purposes of 
subsection (a):
    (A) `Murder' is (i) the unlawful killing of a human being with 
malice aforethought (including killing a human being purposefully, 
knowingly, or recklessly under circumstances manifesting extreme 
indifference to the value of human life); or (ii) causing the death of 
a human being in the course of committing another felony offense.
    (B) `Voluntary manslaughter' is (i) the unlawful killing of a human 
being without malice, upon a sudden quarrel or heat of passion; or (ii) 
causing the death of a human being through actions intended to cause 
serious physical injury to another human being.
    (C) `Kidnapping' is an offense that includes at least (i) an act of 
restraining, removing, or confining another; (ii) an unlawful means of 
accomplishing that act; and (iii) at least one or more of the following 
aggravating factors: (I) the offense was committed for a nefarious 
purpose; (II) the offense substantially interfered with the victim's 
liberty; or (III) the offense exposed the victim to a substantial risk 
of bodily injury, sexual assault, or involuntary servitude.
    (D) `Aggravated assault' is (i) attempting to cause serious or 
substantial bodily injury to another, or causing such injury 
purposefully, knowingly, or recklessly; or (ii) attempting to cause, or 
purposefully, knowingly, or recklessly causing, bodily injury to 
another through use of a deadly weapon.
    (E) A `forcible sex offense' is any offense requiring a sexual act 
or sexual contact to which consent to the actor's conduct (i) is not 
given, or (ii) is not legally valid, such as where consent to the 
conduct is involuntary, incompetent, or coerced. The terms `sexual act' 
and `sexual contact' have the meaning given in 18 U.S.C. 2246.
    (F) `Robbery' is the misappropriation of property under 
circumstances involving immediate danger to the person of another.
    (G) [lsqbb]`Burglary of a dwelling' is an unlawful or unprivileged 
entry into or remaining in a dwelling with intent to commit a 
[lsqbb]crime[rsqbb][lsqbb]felony[rsqbb].[rsqbb] [lsqbb]`Burglary' is an 
unlawful or unprivileged entry into or remaining in a building or other 
structure with intent to commit a 
[lsqbb]crime[rsqbb][lsqbb]felony[rsqbb].[rsqbb]
    (H) `Arson' is the intentional damaging, by fire or the use of 
explosives, of any building, vehicle, or other real property.
    (I) `Extortion' is obtaining something of value from another by the 
wrongful use of (i) force, (ii) fear of physical injury, or (iii) 
threat of physical injury.''.

(B) Requirement That Offense Be Classified as Felony Under State Law

    Section 4B1.2 is amended in each of subsections (a) and (b) by 
inserting after ``a term exceeding one year'' both places such term 
appears the following: ``and classified [lsqbb]at the time the 
defendant was initially sentenced[rsqbb] as a felony (or comparable 
classification) under the laws of the jurisdiction in which the 
defendant was convicted''.
    The Commentary to Sec.  4B1.2 is amended in Note 1 in the paragraph 
that begins `` `Prior felony conviction' means'' by inserting after ``a 
term exceeding one year'' the following: ``and classified [lsqbb]at the 
time the defendant was initially sentenced[rsqbb] as a felony (or 
comparable classification) under the laws of the jurisdiction in which 
the defendant was convicted''; and by striking ``regardless of whether 
such offense is specifically designated as a felony and''.

(C) Corresponding Revisions to Sec.  2L1.2

    The Commentary to Sec.  2L1.2 captioned ``Application Notes'' is 
amended in Note 1 by striking subparagraph (B)(iii) as follows:
    `` (iii) `Crime of violence' means any of the following offenses 
under federal, state, or local law: murder, manslaughter, kidnapping, 
aggravated assault, forcible sex offenses (including where consent to 
the conduct is not given or is not legally valid, such as where consent 
to the conduct is involuntary, incompetent, or coerced), statutory 
rape, sexual abuse of a minor, robbery, arson, extortion, extortionate 
extension of credit, burglary of a dwelling, or any other offense under 
federal, state, or local law that has as an element the use, attempted 
use, or threatened use of physical force against the person of 
another.'',

and inserting the following:

    ``(iii) `Crime of violence' has the meaning given that term in 
Sec.  4B1.2(a). However, for purposes of subsection (b)(1)(E), which 
applies to misdemeanor crimes of violence, the requirements in Sec.  
4B1.2(a) that the offense be a felony (i.e., punishable by a term more 
than one year and classified as a felony) do not apply.'';
    in Note 2 by adding at the end as the last sentence the following: 
``In addition, a crime of violence or a drug trafficking offense is a 
`felony' only if it was classified [lsqbb]at the time the defendant was 
initially sentenced[rsqbb] as a felony (or comparable classification) 
under the laws of the jurisdiction in which the defendant was 
convicted.'';
    and in Note 4(A) by striking ``any federal, state, or local offense 
punishable by a term of imprisonment of one year or less'' and 
inserting ``a federal or state offense, punishable by a term of 
imprisonment, that is not a `felony' as defined in Application Note 
2''.

Issues for Comment:

    1. The Commission invites broad comment on the ``residual clause'' 
in the definition of ``crime of violence'' in Sec.  4B1.2. Should the 
residual clause be eliminated, as proposed by the proposed amendment? 
If so, what other changes, if any, should be made to the guidelines 
definition of ``crime of violence''?
    In the alternative, should the residual clause be revised? If so, 
how should it be revised? Should the Commission consider a different 
type of residual clause, such as the residual clause in 18 U.S.C. 16?
    2. The Commission similarly invites broad comment on the list of 
``enumerated'' offenses in the definition of ``crime of violence'' in 
Sec.  4B1.2. Should the list of enumerated offenses be clarified and 
revised, as proposed by the proposed amendment? What offenses should be 
enumerated, and how (if at all) should they be defined?
    For example, should the list of enumerated offenses be limited to 
common law offenses against the person? Should the list also include 
any

[[Page 49317]]

offense resulting in death or bodily injury to another if the 
defendant's conduct was knowing, intentional, or reckless?
    Should the list of enumerated offenses include offenses where harm 
did not result, but could have resulted because of the risk involved? 
If so, what offenses should be included on the list, and how (if at 
all) should they be defined?
    3. The Commission seeks comment on offenses against property and 
the extent to which they should be included in the guidelines 
definition of ``crime of violence.'' Statutory definitions relating to 
``violent'' offenses account for property offenses in various ways. For 
example, the statutory definition of ``crime of violence'' in 18 U.S.C. 
16 does not enumerate any specific property offenses, but its elements 
clause extends to offenses that have as an element the use, attempted 
use, or threatened use of physical force against the property of 
another, and its residual clause extends to offenses that involve a 
substantial risk of physical force against the property of another. In 
contrast, the statutory definition of ``violent felony'' in 18 U.S.C. 
924(e) enumerates arson and burglary, but its elements clause and 
residual clause do not extend to property offenses. How, if at all, 
should the guidelines definition of ``crime of violence'' apply to 
property offenses?
    4. The proposed amendment seeks comment on the enumerated offense 
definitions, as set forth in Part A of the proposed amendment. The 
definitions were derived from broad contemporary, generic definitions 
of the elements for the listed offenses. The Commission seeks comment 
generally on whether providing definitions for enumerated offenses is 
appropriate and specifically on whether the definitions provided are 
appropriate. Are there offenses that are covered by the proposed 
definitions but should not be? Are there offenses that are not covered 
by the proposed definitions but should be?
    In addition, the Commission seeks specific comment on the 
following:
    (A) The proposed definition of ``murder'' would include offenses in 
which the defendant causes the death of another in the course of 
committing any felony. This definition is worded more broadly than 
felony murder statutes in some states to minimize complexity and avoid 
difficulties with differing state law definition. The Commission seeks 
comment on whether such a definition is appropriate.
    (B) The proposed definition of ``kidnapping'' attempts to capture 
the kinds of aggravating factors that some courts have held are present 
in state statutes. The Commission seeks comment on whether there are 
other factors that should be included as possible elements of 
kidnapping.
    (C) The proposed definition of ``aggravated assault'' does not 
include as an aggravating factor that the victim has a special status, 
such as law enforcement, elderly, or minor. Should those type of 
assaults qualify as ``aggravated assault''? In particular, the 
Commission seeks comment on whether the definition of ``aggravated 
assault'' should include, as a possible alternative element, attempting 
to cause, or purposefully, knowingly, or recklessly causing, bodily 
injury to a person classified as a special victim under the statute of 
conviction (including public servants, minors, the elderly, pregnant 
women, and any other similar group).
    (D) The proposed definition of ``forcible sex offense'' 
incorporates the definitions of ``sexual act'' and ``sexual contact'' 
in 18 U.S.C. 2246. Are there types of sex offenses that would be 
included in the definition of ``forcible sex offense'' set forth in the 
proposed amendment that should not be considered ``crimes of 
violence''? Are there types of sex offenses that would not be included 
under this definition, but should be? Should statutory rape be 
expressly included? Should it be expressly excluded?
    (E) The proposed amendment defines ``robbery'' as the 
misappropriation of property under circumstances involving immediate 
danger to the person of another. The Commission seeks comment on 
whether this definition is adequately clear and on whether it is 
appropriate in scope. Are there types of offenses that would be 
included in the definition set forth in the proposed amendment that 
should not be considered ``crimes of violence''? Are there types of 
offenses that would not be included under this definition, but should 
be? For example, in some jurisdictions the elements of robbery may be 
established by a taking of property from a person or person's presence 
by fear (rather than, for example, by force or by injury). If the 
defendant was convicted of such a taking by fear, would it qualify as 
``robbery'' as defined by the proposed amendment? In the alternative, 
would it qualify as ``extortion'' as defined by the proposed amendment? 
Should such a robbery (i.e., the taking of property from a person or 
person's presence by fear) qualify as a crime of violence?
    (F) The Supreme Court has determined that burglary under section 
924(e) includes structures other than dwellings, but the Commission has 
included only burglaries of dwellings under the current definition of 
``crime of violence'' at Sec.  4B1.2. The Commission seeks comment on 
whether burglaries of buildings and other structures that are not 
dwellings should be included as ``crimes of violence.''
    (G) Many states define ``arson'' to include burning of personal 
property. The proposed amendment does not include that type of arson in 
its definition of arson. The Commission seeks comment on whether the 
exclusion of such type of arson is appropriate. In those states that 
punish burning of personal property under arson statutes, what type of 
conduct is covered? Is it conduct that should be considered a crime of 
violence? Does it typically pose a risk of injury to a person?
    (H) Extortion has been defined in case law as including non-violent 
threats, such as a threat to reveal embarrassing personal information. 
The definition of ``extortion'' in the proposed amendment requires the 
threat to be a ``threat of physical injury'' against the person. 
Similarly, extortion has been defined in case law as including fear, 
and the definition of ``extortion'' in the proposed amendment requires 
the fear to be a ``fear of physical injury.'' The Commission seeks 
comment on whether including these limitations in the ``extortion'' 
definition is appropriate.
    5. Some commentators have suggested that the definition of ``crime 
of violence'' should not provide a list of enumerated offenses (e.g., 
murder, voluntary manslaughter, aggravated assault), but should contain 
only an elements clause (i.e., the use, attempted use, or threatened 
use of physical force against the person [or property] of another). The 
Commission seeks comment on whether such a single-prong approach would 
provide a sufficient and appropriate definition of ``crime of 
violence.'' If so, what should the ``elements clause'' provide?
    6. The Commentary to Sec.  4B1.2 states that ``crime of violence'' 
and ``controlled substance offense'' include the offenses of aiding and 
abetting, conspiring, and attempting to commit such offenses. The 
Commission seeks comment on whether the definitions of ``crime of 
violence'' and ``controlled substance offense'' should include 
attempts, conspiracies, and aiding and abetting. If so, should any 
limitations apply?
    7. Part B of the proposed amendment would amend Sec.  4B1.2 to 
revise the definition of ``felony.'' The Commission seeks comment on 
the advantages and disadvantages of using different definitions of 
``felony'' in the guidelines. Should the Commission adopt a single 
definition of ``felony'' throughout the guidelines?

[[Page 49318]]

    8. The revisions made by Part B would add a requirement that the 
offense have been classified as a felony under the laws of the 
jurisdiction in which the defendant was convicted. The Commission seeks 
comment on how this principle should apply to states that do not 
classify offenses as felonies, and to states (such as California) in 
which some offenses may be classified as either a felony or a 
misdemeanor at initial sentencing and the classification may change 
based on later events (such as a revocation of probation). The proposed 
amendment includes the parenthetical phrase ``(or comparable 
classification)'' and the bracketed phrase ``[at the time the defendant 
was initially sentenced]'' to address these situations. Do these 
phrases adequately address these situations? If not, how, if at all, 
should the Commission address these situations?
    9. Part C of the proposed amendment would adopt for the illegal 
reentry guideline the same definition of ``crime of violence'' used in 
the career offender guideline. The Commission seeks comment on the 
advantages and disadvantages of using different definitions for these 
guidelines. Should the Commission have separate definitions for ``crime 
of violence'' in these guidelines?
    10. The Commission seeks comment on whether any other guidelines 
that involve terms such as ``crime of violence,'' ``controlled 
substance offense,'' and ``drug trafficking offense'' should be revised 
to conform to the definitions used in the career offender guideline or 
the illegal reentry guideline (as revised by the proposed amendment). 
For example, what changes, if any, should be made to the firearms and 
explosives guidelines, Sec. Sec.  2K2.1 and 2K1.3, to conform to the 
revisions made by the proposed amendment? What changes, if any, should 
be made to guidelines that use the term ``crime of violence'' but do 
not define it by reference to Sec.  4B1.2 (such as guidelines that 
define it by reference to 18 U.S.C. 16)? Should the Commission revise 
those guidelines to promote a single definition of ``crime of 
violence'' (and terms such as ``controlled substance offense'') 
throughout the guidelines?
[FR Doc. 2015-20107 Filed 8-14-15; 8:45 am]
 BILLING CODE 2210-40-P