81_FR_2305 81 FR 2295 - Sentencing Guidelines for United States Courts

81 FR 2295 - Sentencing Guidelines for United States Courts

UNITED STATES SENTENCING COMMISSION

Federal Register Volume 81, Issue 10 (January 15, 2016)

Page Range2295-2312
FR Document2016-00766

Pursuant to section 994(a), (o), and (p) of title 28, United States Code, the United States Sentencing Commission is considering promulgating certain amendments to the sentencing guidelines, policy statements, and commentary. This notice sets forth the proposed amendments and, for each proposed amendment, a synopsis of the issues addressed by that amendment. This notice also sets forth a number of issues for comment, some of which are set forth together with the proposed amendments, and one of which (regarding retroactive application of proposed amendments) is set forth in the SUPPLEMENTARY INFORMATION portion of this notice. The proposed amendments and issues for comment in this notice are as follows: (1) A multi-part proposed amendment to the Guidelines Manual to respond to recently enacted legislation and miscellaneous guideline issues, including (A) revisions to Appendix A (Statutory Index) to respond to new offenses established by the Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act (USA FREEDOM Act) of 2015, Public Law 114-23 (June 2, 2015), and related issues for comment; (B) revisions to Appendix A (Statutory Index) to respond to changes made by the Bipartisan Budget Act of 2015, Public Law 114-74 (Nov. 2, 2015), to existing criminal statutes, and related issues for comment; (C) a revision to Appendix A (Statutory Index) to reference offenses under 18 U.S.C. 1715 (Firearms as nonmailable items) to Sec. 2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) and a revision to Sec. 2K2.1 to establish a base offense level for such offenses, and a related issue for comment; and (D) a technical amendment to the Background Commentary to Sec. 2T1.6 (Failing to Collect or Truthfully Account for and Pay Over Tax); (2) a two-part proposed amendment to the policy statement pertaining to ``compassionate release,'' Sec. 1B1.13 (Reduction in Term of Imprisonment as a Result of Motion by Director of Bureau of Prisons), including (A) a detailed request for comment on whether any changes should be made to the policy statement and (B) a proposed amendment illustrating one possible set of changes to the policy statement, i.e., to reflect the criteria set forth in the program statement used by the Bureau of Prisons; (3) a proposed amendment to Sec. Sec. 5B1.3 (Conditions of Probation) and 5D1.3 (Conditions of Supervised Release) to revise, clarify, and rearrange the provisions in the Guidelines Manual on conditions of probation and supervised release, and related issues for comment; (4) a proposed amendment to Sec. 2E3.1 (Gambling; Animal Fighting Offenses) to provide higher penalties for animal fighting offenses and to respond to two new offenses relating to attending an animal fighting venture that were established by section 12308 of the Agricultural Act of 2014, Public Law 113-79 (Feb. 7, 2014), and related issues for comment; (5) a proposed amendment to the child pornography guidelines, Sec. Sec. 2G2.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material; Custodian Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in Production), 2G2.2 (Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, Soliciting, or Advertising Material Involving the Sexual Exploitation of a Minor; Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic; Possessing Material Involving the Sexual Exploitation of a Minor), and 2G2.6 (Child Exploitation Enterprises), to address circuit conflicts and application issues that have arisen when applying these guidelines, including issues in (A) application of the vulnerable victim adjustment when the offense involves minors who are unusually young and vulnerable (such as infants or toddlers) and (B) application of the tiered distribution enhancement and, in particular, determining the appropriate tier of enhancement to apply when the offense involves a peer-to-peer file-sharing program or network, and related issues for comment; and (6) a multi-part proposed amendment to the guidelines for immigration offenses, including (A) revisions to Sec. 2L1.1 (Smuggling, Transporting, or Harboring an Unlawful Alien) to provide options for raising the base offense level for alien smuggling offenses and address offenses involving unaccompanied minors in alien smuggling offenses, and a related issue for comment, and (B) revisions to Sec. 2L1.2 (Unlawfully Entering or Remaining in the United States) to (i) generally reduce the use of the ``categorical approach'' in applying the guidelines by measuring the seriousness of a defendant's prior conviction by the length of the sentence imposed on the prior conviction rather than by the type of offense (e.g., ``crime of violence''); (ii) provide higher alternative base offense levels for defendants who have one or more prior convictions for illegal reentry offenses; (iii) provide a new tiered enhancement for defendants who engage in criminal conduct after reentering the United States; (iv) correspondingly reduce the existing tiered enhancement at subsection (b)(1) for defendants who had one or more prior convictions before being deported; and (v) related issues for comment.

Federal Register, Volume 81 Issue 10 (Friday, January 15, 2016)
[Federal Register Volume 81, Number 10 (Friday, January 15, 2016)]
[Notices]
[Pages 2295-2312]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-00766]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of proposed amendments to sentencing guidelines, policy 
statements, and commentary. Request for public comment, including 
public comment regarding retroactive application of any of the proposed 
amendments; 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 certain amendments to the sentencing guidelines, policy 
statements, and commentary. This notice sets forth the proposed 
amendments and, for each proposed amendment, a synopsis of the issues 
addressed by that amendment. This notice also sets forth a number of 
issues for comment, some of which are set forth together with the 
proposed amendments, and one of which (regarding retroactive 
application of proposed amendments) is set forth in the SUPPLEMENTARY 
INFORMATION portion of this notice.
    The proposed amendments and issues for comment in this notice are 
as follows:
    (1) A multi-part proposed amendment to the Guidelines Manual to 
respond to recently enacted legislation and miscellaneous guideline 
issues, including (A) revisions to Appendix A (Statutory Index) to 
respond to new offenses established by the Uniting and Strengthening 
America by Fulfilling Rights and Ensuring Effective Discipline Over 
Monitoring Act (USA FREEDOM Act) of 2015, Public Law 114-23 (June 2, 
2015), and related issues for comment; (B) revisions to Appendix A 
(Statutory Index) to respond to changes made by the Bipartisan Budget 
Act of 2015, Public Law 114-74 (Nov. 2, 2015), to existing criminal 
statutes, and related issues for comment; (C) a revision to Appendix A 
(Statutory Index) to reference offenses under 18 U.S.C. 1715 (Firearms 
as nonmailable items) to Sec.  2K2.1 (Unlawful Receipt, Possession, or 
Transportation of Firearms or Ammunition; Prohibited Transactions 
Involving Firearms or Ammunition) and a revision to Sec.  2K2.1 to 
establish a base offense level for such offenses, and a related issue 
for comment; and (D) a technical amendment to the Background Commentary 
to Sec.  2T1.6 (Failing to Collect or Truthfully Account for and Pay 
Over Tax);
    (2) a two-part proposed amendment to the policy statement 
pertaining to ``compassionate release,'' Sec.  1B1.13 (Reduction in 
Term of Imprisonment as a Result of Motion by Director of Bureau of 
Prisons), including (A) a detailed request for comment on whether any 
changes should be made to the policy statement and (B) a proposed 
amendment illustrating one possible set of changes to the policy 
statement, i.e., to reflect the criteria set forth in the program 
statement used by the Bureau of Prisons;
    (3) a proposed amendment to Sec. Sec.  5B1.3 (Conditions of 
Probation) and 5D1.3 (Conditions of Supervised Release) to revise, 
clarify, and rearrange the provisions in the Guidelines Manual on

[[Page 2296]]

conditions of probation and supervised release, and related issues for 
comment;
    (4) a proposed amendment to Sec.  2E3.1 (Gambling; Animal Fighting 
Offenses) to provide higher penalties for animal fighting offenses and 
to respond to two new offenses relating to attending an animal fighting 
venture that were established by section 12308 of the Agricultural Act 
of 2014, Public Law 113-79 (Feb. 7, 2014), and related issues for 
comment;
    (5) a proposed amendment to the child pornography guidelines, 
Sec. Sec.  2G2.1 (Sexually Exploiting a Minor by Production of Sexually 
Explicit Visual or Printed Material; Custodian Permitting Minor to 
Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage 
in Production), 2G2.2 (Trafficking in Material Involving the Sexual 
Exploitation of a Minor; Receiving, Transporting, Shipping, Soliciting, 
or Advertising Material Involving the Sexual Exploitation of a Minor; 
Possessing Material Involving the Sexual Exploitation of a Minor with 
Intent to Traffic; Possessing Material Involving the Sexual 
Exploitation of a Minor), and 2G2.6 (Child Exploitation Enterprises), 
to address circuit conflicts and application issues that have arisen 
when applying these guidelines, including issues in (A) application of 
the vulnerable victim adjustment when the offense involves minors who 
are unusually young and vulnerable (such as infants or toddlers) and 
(B) application of the tiered distribution enhancement and, in 
particular, determining the appropriate tier of enhancement to apply 
when the offense involves a peer-to-peer file-sharing program or 
network, and related issues for comment; and
    (6) a multi-part proposed amendment to the guidelines for 
immigration offenses, including (A) revisions to Sec.  2L1.1 
(Smuggling, Transporting, or Harboring an Unlawful Alien) to provide 
options for raising the base offense level for alien smuggling offenses 
and address offenses involving unaccompanied minors in alien smuggling 
offenses, and a related issue for comment, and (B) revisions to Sec.  
2L1.2 (Unlawfully Entering or Remaining in the United States) to (i) 
generally reduce the use of the ``categorical approach'' in applying 
the guidelines by measuring the seriousness of a defendant's prior 
conviction by the length of the sentence imposed on the prior 
conviction rather than by the type of offense (e.g., ``crime of 
violence''); (ii) provide higher alternative base offense levels for 
defendants who have one or more prior convictions for illegal reentry 
offenses; (iii) provide a new tiered enhancement for defendants who 
engage in criminal conduct after reentering the United States; (iv) 
correspondingly reduce the existing tiered enhancement at subsection 
(b)(1) for defendants who had one or more prior convictions before 
being deported; and (v) related issues for comment.

DATES: (1) Written Public Comment.--Written public comment regarding 
the proposed amendments and issues for comment set forth in this 
notice, including public comment regarding retroactive application of 
any of the proposed amendments, should be received by the Commission 
not later than March 21, 2016.
    (2) Public Hearings.--The Commission plans to hold public hearings 
regarding the proposed amendments and issues for comment set forth in 
this notice on February 17, 2016, and March 16, 2016. Further 
information regarding the public hearings, including requirements for 
testifying and providing written testimony, as well as the location, 
time, and scope of the hearings, 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: Matt Osterrieder, Legislative 
Specialist, (202) 502-4500, [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 amendments in this notice are presented in one of two 
formats. First, some of the amendments are proposed as specific 
revisions to a guideline or commentary. 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. 
Similarly, bracketed text within a specific offense characteristic or 
application note means that the Commission specifically invites comment 
on whether the proposed provision is appropriate. Second, the 
Commission has 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), any 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 amendments 
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. Miscellaneous

    Synopsis of Proposed Amendment: This proposed amendment responds to 
recently enacted legislation and miscellaneous guideline issues.

[[Page 2297]]

A. USA FREEDOM Act of 2015

    Part A of the proposed amendment responds to the Uniting and 
Strengthening America by Fulfilling Rights and Ensuring Effective 
Discipline Over Monitoring Act (USA FREEDOM Act) of 2015, Pub. L. 114-
23 (June 2, 2015), which, among other things, set forth changes to 
statutes related to maritime navigation and provided new and expanded 
criminal offenses to implement certain provisions in international 
conventions relating to maritime and nuclear terrorism. The Act also 
added these new offenses to the list of offenses specifically 
enumerated at 18 U.S.C. 2332b(g)(5) as federal crimes of terrorism.
    The USA FREEDOM Act created a new criminal offense at 18 U.S.C. 
2280a (Violence against maritime navigation and maritime transport 
involving weapons of mass destruction) to prohibit certain terrorism 
acts and threats against maritime navigation committed in a manner that 
causes or is likely to cause death, serious injury, or damage, when the 
purpose of the conduct is to intimidate a population or to compel a 
government or international organization to do or abstain from doing 
any act. The prohibited acts include (i) the use against or on a ship, 
or discharge from a ship, of any explosive or radioactive material, 
biological, chemical, or nuclear weapon or other nuclear explosive 
device; (ii) the discharge from a ship of oil, liquefied natural gas, 
or other hazardous or noxious substance; (iii) any use of a ship that 
causes death or serious injury or damage; and (iv) the transportation 
aboard a ship of any explosive or radioactive material. Section 2280a 
also prohibits the transportation on board a ship of any biological, 
chemical or nuclear weapon or other nuclear explosive device, and any 
components, delivery means, or materials for a nuclear weapon or other 
nuclear explosive device, under specified circumstances, but this 
conduct does not contain a mens rea requirement. Further, section 2280a 
prohibits the transportation onboard a ship of a person who committed 
an offense under section 2280 or 2280a, with the intent of assisting 
that person evade criminal prosecution. The penalties for violations of 
section 2280a are a fine, imprisonment for no more than 20 years, or 
both, or, if the death of a person results, imprisonment for any term 
of years or life. Section 2280a also prohibits threats to commit the 
offenses not related to transportation on board a ship and provides a 
penalty of imprisonment of up to five years.
    Part A of the proposed amendment addresses these new offenses at 
section 2280a by referencing them in Appendix A (Statutory Index) to 
the following Chapter Two guidelines: Sec. Sec.  2A1.1 (First Degree 
Murder); 2A1.2 (Second Degree Murder); 2A1.3 (Voluntary Manslaughter); 
2A1.4 (Involuntary Manslaughter); 2A2.1 (Assault with Intent to Commit 
Murder; Attempted Murder); 2A2.2 (Aggravated Assault), 2A2.3 (Assault); 
2A6.1 (Threatening or Harassing Communications); 2B1.1 (Fraud); 2B3.2 
(Extortion); 2K1.3 (Unlawful Receipt, Possession, or Transportation of 
Explosive Materials; Prohibited Transactions Involving Explosive 
Materials); 2K1.4 (Arson); 2M5.2 (Exportation of Arms, Munitions, or 
Military Equipment or Services Without Required Validated Export 
License); 2M5.3 (Providing Material Support or Resources to Designated 
Foreign Terrorist Organizations or Specially Designated Global 
Terrorists, or For a Terrorist Purpose); 2M6.1 (Nuclear, Biological, 
and Chemical Weapons, and Other Weapons of Mass Destruction); 2Q1.1 
(Knowing Endangerment Resulting From Mishandling Hazardous or Toxic 
Substances, Pesticides or Other Pollutants); 2Q1.2 (Mishandling of 
Hazardous or Toxic Substances or Pesticides); 2X1.1 (Conspiracy); 2X2.1 
(Aiding and Abetting); and 2X3.1 (Accessory After the Fact).
    The USA FREEDOM Act also created a new criminal offense at 18 
U.S.C. Sec.  2281a (Additional offenses against maritime fixed 
platforms) to prohibit certain maritime terrorism acts that occur 
either on a fixed platform or to a fixed platform committed in a manner 
that may cause death, serious injury, or damage, when the purpose of 
the conduct is to intimidate a population or to compel a government or 
international organization to do or abstain from doing any act. Section 
2281a prohibits specific conduct, including (i) the use against or 
discharge from a fixed platform, of any explosive or radioactive 
material, or biological, chemical, or nuclear weapon and (ii) the 
discharge from a fixed platform of oil, liquefied natural gas, or 
another hazardous or noxious substance. The penalties for violations of 
section 2281a are a fine, imprisonment for no more than 20 years, or 
both, or, if the death of a person results, imprisonment for any term 
of years or life. Section 2281a also prohibits threats to commit the 
offenses related to acts on or against fixed platforms and provides a 
penalty of imprisonment of up to five years.
    Part A of the proposed amendment amends Appendix A (Statutory 
Index) so the new offenses at 18 U.S.C. 2281a are referenced to 
Sec. Sec.  2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2, 2A2.3, 2A6.1, 
2B1.1, 2B3.2, 2K1.4, 2M6.1, 2Q1.1, 2Q1.2, and 2X1.1.
    In addition, the USA FREEDOM Act created a new criminal offense at 
18 U.S.C. 2332i that prohibits (i) the possession or production of 
radioactive material or a device with the intent to cause death or 
serious bodily injury or to cause substantial damage to property or the 
environment; and (ii) the use of a radioactive material or a device, or 
the use, damage, or interference with the operation of a nuclear 
facility that causes the release of radioactive material, radioactive 
contamination, or exposure to radiation with the intent (or knowledge 
that such act is likely) to cause death or serious bodily injury or 
substantial damage to property or the environment, or with the intent 
to compel a person, international organization or country to do or 
refrain from doing an act. Section 2332i also prohibits threats to 
commit any such acts. The penalties for violations of section 2332i are 
a fine for not more than $2,000,000 and imprisonment for any term of 
years or life.
    Part A of the proposed amendment amends Appendix A (Statutory 
Index) to reference the new offenses at 18 U.S.C. 2332i to Sec. Sec.  
2A6.1, 2K1.4, 2M2.1 (Destruction of, or Production of Defective, War 
Material, Premises, or Utilities), 2M2.3 (Destruction of, or Production 
of Defective, National Defense Material, Premises, or Utilities), and 
2M6.1.
    Finally, Part A makes clerical changes to Application Note 1 to 
Sec.  2M6.1 (Nuclear, Biological, and Chemical Weapons, and Other 
Weapons of Mass Destruction) to reflect the redesignation of a section 
in the United States Code by the USA FREEDOM Act.
    Part A of the proposed amendment also sets forth two issues for 
comment.

B. Bipartisan Budget Act of 2015

    Part B of the proposed amendment responds to the Bipartisan Budget 
Act of 2015, Pub. L. 114-74 (Nov. 2, 2015), which, among other things, 
amended three existing criminal statutes concerned with fraudulent 
claims under certain Social Security programs.
    The three criminal statutes amended by the Bipartisan Budget Act of 
2015 are sections 208 (Penalties [for fraud involving the Federal Old-
Age and Survivors Insurance Trust Fund]), 811 (Penalties for fraud 
[involving special benefits for certain World War II veterans]), and 
1632 (Penalties for fraud [involving supplemental security income for 
the aged, blind, and

[[Page 2298]]

disabled]) of the Social Security Act (42 U.S.C. 408, 1011, and 1383a, 
respectively). The three amended statutes are currently referenced in 
Appendix A (Statutory Index) of the Guidelines Manual to Sec.  2B1.1 
(Theft, Property Destruction, and Fraud). The Act added new 
subdivisions criminalizing conspiracy to commit fraud for selected 
offense conduct already in the three statutes. For each of the three 
statutes, the new subdivision provides that whoever ``conspires to 
commit any offense described in any of [the] paragraphs'' enumerated 
shall be imprisoned for not more than five years, the same statutory 
maximum penalty applicable to the substantive offense.
    Part B amends Appendix A (Statutory Index) so that sections 408, 
1011, and 1383a of Title 42 are referenced not only to Sec.  2B1.1 but 
also to Sec.  2X1.1 (Attempt, Solicitation, or Conspiracy (Not Covered 
by a Specific Office Guideline)).
    Part B of the proposed amendment also includes issues for comment.

C. 18 U.S.C. 1715 (Firearms as Nonmailable Items)

    Section 1715 of title 18, United States Code (Firearms as 
nonmailable items), makes it unlawful to deposit for mailing or 
delivery by the mails pistols, revolvers, and other firearms capable of 
being concealed on the person and declared nonmailable (as prescribed 
by Postal Service regulations). For any violation of section 1715, the 
statutory maximum term of imprisonment is two years. The current 
Guidelines Manual does not provide a guideline reference in Appendix A 
for offenses under section 1715.
    The Department of Justice in its annual letter to the Commission 
has proposed that section 1715 offenses should be assigned a guideline 
reference, base offense level, and appropriate specific offense 
characteristics. The Department indicates that in recent years the 
United States Attorney's Office for the Virgin Islands has brought 
several cases charging section 1715, where firearms were illegally 
brought onto the islands by simply mailing them from mainland United 
States.
    Part C of the proposed amendment amends Appendix A (Statutory 
Index) to reference offenses under section 1715 to Sec.  2K2.1 
(Unlawful Receipt, Possession, or Transportation of Firearms or 
Ammunition; Prohibited Transactions Involving Firearms or Ammunition). 
It also adds 18 U.S.C. 1715 to subsection (a)(8) of Sec.  2K2.1, 
establishing a base offense level of 6 for such offenses.
    Part C of the proposed amendment also includes an issue for comment 
regarding section 1715 offenses and whether other changes to the 
guidelines are appropriate to address these offenses.

D. Technical Amendment to Sec.  2T1.6

    The Internal Revenue Code (Title 26, United States Code) requires 
employers to withhold from their employees' paychecks money 
representing the employees' personal income and Social Security taxes. 
The Code directs the employer to collect taxes as wages are paid, but 
only requires a periodic payment of such taxes to the IRS. If an 
employer willfully fails to collect, truthfully account for, or pay 
over such taxes, 26 U.S.C. 7202 provides both civil and criminal 
remedies. Section 7202 provides as criminal penalty a term of 
imprisonment with a statutory maximum of five years.
    Section 7202 is referenced in Appendix A (Statutory Index) to Sec.  
2T1.6 (Failing to Collect or Truthfully Account for and Pay Over Tax). 
The Background commentary to Sec.  2T1.6 states that ``[t]he offense is 
a felony that is infrequently prosecuted.'' The Department of Justice 
in its annual letter to the Commission has proposed that the 
``infrequently prosecuted'' statement should be deleted. The Department 
points out that while that statement may have been accurate when the 
relevant commentary was originally written (in 1987), the number of 
prosecutions under section 7202 have since increased substantially. The 
use of Sec.  2T1.6 increased from three cases in 2002 to 46 cases in 
2014. See United States Sentencing Commission, Use of Guidelines and 
Specific Offense Characteristics: Guideline Calculation Based (Fiscal 
Year 2002), at http://www.ussc.gov/research-and-publications/federal-sentencing-statistics/guideline-application-frequencies/guideline-application-frequencies-2002; United States Sentencing Commission, Use 
of Guidelines and Specific Offense Characteristics: Guideline 
Calculation Based (Fiscal Year 2014), at http://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/guideline-application-frequencies/2014/Use_of_SOC_Guideline_Based.pdf.
    Part D of the proposed amendment amends the Background Commentary 
to Sec.  2T6.1 to delete the sentence that states ``The offense is a 
felony that is infrequently prosecuted.''

Proposed Amendment:

(A) USA FREEDOM Act of 2015

    The Commentary to Sec.  2M6.1 captioned ``Application Notes'' is 
amended in Note 1 by striking ``831(f)(2)'' and inserting 
``831(g)(2)'', and by striking ``831(f)(1)'' and inserting 
``831(g)(1)''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. Sec.  2280 the following:
    ``18 U.S.C. Sec.  2280a 2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2, 
2A2.3, 2A6.1, 2B1.1, 2B3.2, 2K1.3, 2K1.4, 2M5.2, 2M5.3, 2M6.1, 2Q1.1, 
2Q1.2, 2X1.1, 2X2.1, 2X3.1'';
    by inserting after the line referenced to 18 U.S.C. Sec.  2281 the 
following:
    ``18 U.S.C. 2281a 2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2, 2A2.3, 
2A6.1, 2B1.1, 2B3.2, 2K1.4, 2M6.1, 2Q1.1, 2Q1.2, 2X1.1'';
    and by inserting after the line referenced to 18 U.S.C. 2332h the 
following:
    ``18 U.S.C. 2332i 2A6.1, 2K1.4, 2M2.1, 2M2.3, 2M6.1''.

Issues for Comment:

    1. The USA FREEDOM Act was enacted as a reauthorization of the USA 
PATRIOT Act, Pub. L. 107-56 (October 26, 2001), relating to the 
collection of telephone metadata by various national security agencies. 
Title VII of the Act also amended four existing criminal statutes and 
created three new criminal statutes to implement certain provisions in 
international conventions relating to maritime and nuclear terrorism. 
One of the existing criminal statutes amended by the USA FREEDOM Act 
was 18 U.S.C. 2280. Although the Act did not amend the substantive 
offense conduct in section 2280, it added 19 new definitions and terms 
to the statute and made them applicable to other criminal statutes, 
including the new offenses created by the Act.
    The Commission seeks comment on whether the guidelines should be 
amended to address the changes made by the USA FREEDOM Act. Are the 
existing provisions in the guidelines adequate to address the changes 
to existing criminal statutes and the new offenses created by the Act? 
If not, how should the Commission amend the guidelines to address them?
    2. The proposed amendment would reference the offenses under 18 
U.S.C. 2280a, 18 U.S.C. 2281a, and 18 U.S.C. 2332i to various 
guidelines. The Commission invites comment on offenses under these new 
statutes, including in particular the conduct involved in such offenses 
and the nature

[[Page 2299]]

and seriousness of the harms posed by such offenses. Do the guidelines 
covered by the proposed amendment adequately account for these 
offenses? If not, what revisions to the guidelines would be appropriate 
to account for these offenses? In particular, should the Commission 
provide one or more new alternative base offense levels, specific 
offense characteristics, or departure provisions in one or more of 
these guidelines to better account for these offenses? If so, what 
should the Commission provide?
    In addition, the Commission seeks comment on whether the Commission 
should reference these new offenses to other guidelines instead of, or 
in addition to, the guidelines covered by the proposed amendment. 
Alternatively, should the Commission defer action in response to these 
new offenses this amendment cycle, undertake a broader review of the 
guidelines pertaining to offenses involving terrorism and weapons of 
mass destruction, and include responding to the new offenses as part of 
that broader review?

(B) Bipartisan Budget Act of 2015

    Appendix A (Statutory Index) is amended in each of the lines 
referenced to 42 U.S.C. 408, 1011, and 1383a(a) by inserting ``, 
2X1.1'' at the end.

Issues for Comment:

    1. Part B of the proposed amendment would reference the new 
conspiracy offenses under 42 U.S.C. 408, 1011, and 1383a to Sec.  2X1.1 
(Attempt, Solicitation, or Conspiracy (Not Covered by a Specific Office 
Guideline)). The Commission invites comment on whether the guidelines 
covered by the proposed amendment adequately account for these 
offenses. If not, what revisions to the guidelines would be appropriate 
to account for these offenses?
    2. In addition to the amendments to the criminal statutes described 
above, the Bipartisan Budget Act of 2015 also amended sections 408, 
1011, and 1383a of Title 42 to add increased penalties for certain 
persons who commit fraud offenses under the relevant social security 
programs. The Act included a provision in all three statutes 
identifying such persons as:
    a person who receives a fee or other income for services performed 
in connection with any determination with respect to benefits under 
this title (including a claimant representative, translator, or current 
or former employee of the Social Security Administration), or who is a 
physician or other health care provider who submits, or causes the 
submission of, medical or other evidence in connection with any such 
determination . . . .
    In light of this new provision, a person who meets this criteria 
and is convicted of a fraud offense under one of the three amended 
statutes may be imprisoned for not more than ten years, double the 
otherwise applicable five-year penalty for other offenders. The new 
increased penalties apply to all of the fraudulent conduct in 
subsection (a) of the three statutes.
    The Commission seeks comment on whether the guidelines should be 
amended to address cases involving defendants convicted of a fraud 
offense under one of the three amended statutes and who meet this new 
criteria set forth by the Bipartisan Budget Act of 2015. Are the 
existing provisions in the guidelines, such as the provisions at Sec.  
2B1.1 and the Chapter Three adjustment at Sec.  3B1.3 (Abuse of 
Position of Trust or Use of Special Skill), adequate to address these 
cases? If not, how should the Commission amend the guidelines to 
address them?

(C) 18 U.S.C. 1715 (Firearms as Non-mailable Items)

    Section 2K2.1 is amended in subsection (a)(8) by inserting ``, or 
Sec.  1715'' before the period at the end.
    The Commentary to Sec.  2K2.1 captioned ``Statutory Provisions'' is 
amended by inserting after ``(k)-(o),'' the following: ``1715,''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. 1712 the following:
    ``18 U.S.C. 1715 2K2.1''.

Issue for Comment:

    1. Part C of the proposed amendment would reference offenses under 
18 U.S.C. 1715 to Sec.  2K2.1. The Commission invites comment on 
offenses under section 1715, including in particular the conduct 
involved in such offenses and the nature and seriousness of the harms 
posed by such offenses. What guideline or guidelines are appropriate 
for these offenses? Does Sec.  2K2.1 adequately account for these 
offenses? To the extent the Commission does provide a reference to one 
or more guidelines, what revisions, if any, to those guidelines would 
be appropriate to account for offenses under section 1715?

(D) Technical Amendment to Sec.  2T1.6

    The Commentary to Sec.  2T1.6 captioned ``Background'' is amended 
by striking ``The offense is a felony that is infrequently 
prosecuted.''.

2. Compassionate Release

    Synopsis of Proposed Amendment: In August 2015, the Commission 
indicated that one of its policy priorities would be ``possible 
consideration of amending the policy statement pertaining to 
`compassionate release,' Sec.  1B1.13 (Reduction in Term of 
Imprisonment as a Result of Motion by Director of Bureau of Prisons).'' 
See United States Sentencing Commission, ``Notice of Final 
Priorities,'' 80 FR 48957 (Aug. 14, 2015). The Commission is publishing 
this proposed amendment to inform the Commission's consideration of the 
issues related to this policy priority.
    The proposed amendment contains two parts. Part A sets forth a 
detailed request for comment on whether any changes should be made to 
the Commission's policy statement at Sec.  1B1.13 (Reduction in Term of 
Imprisonment as a Result of Motion by Director of Bureau of Prisons). 
Part B illustrates one possible set of changes to the policy statement 
at Sec.  1B1.13.

(A) Request for Public Comment on Whether Any Changes Should Be Made to 
the Commission's Policy Statement at Sec.  1B1.13 (Reduction in Term of 
Imprisonment as a Result of Motion by Director of Bureau of Prisons)

Issue for Comment:

    1. Statutory Provisions Related to Compassionate Release. Section 
3582(c)(1)(A) of title 18, United States Code, authorizes a federal 
court, upon motion of the Director of the Bureau of Prisons, to reduce 
the term of imprisonment of a defendant in certain circumstances, i.e., 
if ``extraordinary and compelling reasons'' warrant such a reduction or 
the defendant is at least 70 years of age and meets certain other 
criteria. Such a reduction must be consistent with applicable policy 
statements issued by the Sentencing Commission. See 18 U.S.C. 
3582(c)(1); see also 28 U.S.C. 994(t) (stating that the Commission, in 
promulgating any such policy statements, ``shall describe what should 
be considered extraordinary and compelling reasons for sentence 
reduction, including the criteria to be applied and a list of specific 
examples'').
    Policy Statement at Sec.  1B1.13. The Commission's policy 
statement, Sec.  1B1.13 (Reduction in Term of Imprisonment as a Result 
of Motion by Director of Bureau of Prisons), provides that 
``extraordinary and compelling reasons'' exist if (1) the defendant is 
suffering from a terminal illness; (2) the defendant is suffering from 
certain permanent physical or medical conditions, or experiencing

[[Page 2300]]

deteriorating physical or mental health because of the aging process; 
or (3) the defendant has a minor child and the defendant's only family 
member capable of caring for the child has died or is incapacitated. 
See Sec.  1B1.13, comment. (n.1(A)(i)-(iii)). In addition, the policy 
statement provides that extraordinary and compelling reasons exist if, 
as determined by the Director of the Bureau of Prisons, there exists in 
the defendant's case an extraordinary and compelling reason other than, 
or in combination with, the reasons described above. See Sec.  1B1.13, 
comment. (n.1(A)(iv)). The policy statement was last amended in 2007 to 
provide the current criteria to be applied and a list of the specific 
circumstances which constitute ``extraordinary and compelling reasons'' 
for compassionate release consideration.
    Bureau of Prisons Program Statement on Compassionate Release. On 
August 12, 2013, the Bureau of Prisons issued a new program statement, 
5050.49, that changes how the Bureau implements section 3582(c)(1)(A). 
Among other things, the new program statement expands and details the 
range of circumstances that the Bureau may consider ``extraordinary and 
compelling reasons'' warranting such a reduction. Under the program 
statement, a sentence reduction may be based on the defendant's medical 
circumstances (e.g., a terminal or debilitating medical condition; see 
5050.49(3)(a)-(b)) or on certain non-medical circumstances (e.g., an 
elderly defendant, the death or incapacitation of the family member 
caregiver, or the incapacitation of the defendant's spouse or 
registered partner; see 5050.49(4),(5),(6)).
    Report of the Department of Justice's Office of the Inspector 
General. In May 2015, the Department of Justice's Office of the 
Inspector General (OIG) released a report on the Bureau of Prisons' 
implementation of the compassionate release program provisions related 
to elderly inmates. See U.S. Department of Justice, Office of the 
Inspector General, The Impact of the Aging Inmate Population on the 
Federal Bureau of Prisons, E-15-05 (May 2015), available at https://oig.justice.gov/reports/2015/e1505.pdf. The report found that while 
aging inmates (age 50 years or older) make up a disproportionate share 
of the inmate population, are more costly to incarcerate (primarily due 
to medical needs), engage in less misconduct while in prison, and have 
a lower rate of re-arrest once released than their younger 
counterparts, ``BOP policies limit the number of aging inmates who can 
be considered for early release and, as a result, few are actually 
released early.'' In addition, the report found that the eligibility 
requirements for both medical and non-medical provisions as applied to 
inmates 65 years or older are ``unclear'' and ``confusing.''
    In light of its review, the OIG recommended that the Bureau of 
Prisons should consider revising its compassionate release program to 
facilitate the release of appropriate elderly inmates. The report 
provided the following specific recommendations, among others: (1) 
Revising the inmate age provisions to define an aging inmate as age 50 
or above; and (2) revising the time-served provision for those inmates 
65 and older without medical conditions to remove the requirement that 
they serve 10 years, and require only that they serve 75 percent of 
their sentence. In April 2015, the Bureau of Prisons responded to a 
draft of the OIG report and concurred with each of the recommendations 
made by the OIG.
    Issue for Comment. The Commission seeks comment whether any changes 
should be made to the Commission's policy statement at Sec.  1B1.13 
(Reduction in Term of Imprisonment as a Result of Motion by Director of 
Bureau of Prisons). Should the Commission amend the current policy 
statement describing what constitutes ``extraordinary and compelling 
reasons'' and, if so, how?
    Should the list of extraordinary and compelling reasons in the 
Guidelines Manual closely track the criteria set forth by the Bureau of 
Prisons in its program statement? Should the Commission develop further 
criteria and examples of what circumstances constitute ``extraordinary 
and compelling reasons''? If so, what specific criteria and examples 
should the Commission provide? Should the Commission further define and 
expand the medical and non-medical criteria provided in the Bureau's 
program statement?
    In addition, the Commission seeks comment on how, if at all, the 
policy statement at Sec.  1B1.13 should be revised to address the 
recommendations in the OIG report. Should the Commission adopt the 
recommendations in the OIG report as part of its revision of the policy 
statement at Sec.  1B1.13? Should the Commission expand upon these 
recommendations to revise the Bureau's requirements that limit the 
availability of compassionate release for aging inmates? Alternatively, 
should the Commission defer action on this issue during this amendment 
cycle to consider any possible changes that the Bureau of Prisons might 
promulgate to its compassionate release program statement in response 
to the OIG report?
    Finally, the Commission adopted the policy statement at Sec.  
1B1.13 to implement the directive in 28 U.S.C. 994(t). As noted above, 
the directive requires the Commission to ``describe what should be 
considered extraordinary and compelling reasons for sentence reduction, 
including the criteria to be applied and a list of specific examples.'' 
The Commission also has authority to promulgate general policy 
statements regarding application of the guidelines or other aspects of 
sentencing that in the view of the Commission would further the 
purposes of sentencing (18 U.S.C. 3553(a)(2)), including, among other 
things, the appropriate use of the sentence modification provisions set 
forth in 18 U.S.C. 3582(c). See 28 U.S.C. 994(a)(2)(C). Under this 
general authority, should the Commission further develop the policy 
statement at Sec.  1B1.13 to provide additional guidance or limitations 
regarding the circumstance in which sentences may be reduced as a 
result of a motion by the Director of the Bureau of Prisons? If so, 
what should the specific guidance or limitations be? For example, 
should the Commission provide that the Director of the Bureau of 
Prisons should not withhold a motion under 18 U.S.C. 3582(c)(1)(A) if 
the defendant meets any of the circumstances listed as ``extraordinary 
and compelling reasons'' in Sec.  1B1.13?

(B) Proposed Amendment

    Synopsis of Proposed Amendment: This part of the proposed amendment 
illustrates one possible set of changes to the Commission's policy 
statement at Sec.  1B1.13. The proposed amendment would revise the list 
of ``extraordinary and compelling reasons'' for compassionate release 
consideration in the Commentary to Sec.  1B1.13 to reflect the criteria 
set forth in the Bureau of Prisons' program statement. The language 
used in this part parallels the language in the Bureau's program 
statement.

Proposed Amendment:

    The Commentary to Sec.  1B1.13 captioned ``Application Notes'' is 
amended in Note 1(A) by striking ``following circumstances'' and 
inserting ``circumstances set forth below''; by redesignating clause 
(iv) as clause (viii); by striking clauses (i) through (iii) and 
inserting the following:
    ``(i) The defendant (I) has been diagnosed with a terminal, 
incurable disease; and (II) has a life expectancy of 18 months or less.
    (ii) The defendant has an incurable, progressive illness.

[[Page 2301]]

    (iii) The defendant has suffered a debilitating injury from which 
he or she will not recover.
    (iv) The defendant meets the following criteria--
    (I) the defendant is at least 65 years old;
    (II) the defendant has served at least 50 percent of his or her 
sentence;
    (III) the defendant suffers from a chronic or serious medical 
condition related to the aging process;
    (IV) the defendant is experiencing deteriorating mental or physical 
health that substantially diminishes his or her ability to function in 
a correctional facility; and
    (V) conventional treatment promises no substantial improvement to 
the defendant's mental health or physical condition.
    (v) The defendant (I) is at least 65 years old; and (II) has served 
at least 10 years or 75 percent of his or her sentence, whichever is 
greater.
    (vi) The death or incapacitation of the family member caregiver of 
the defendant's child.
    [``Incapacitation'' means the family member caregiver suffered a 
severe injury or suffers from a severe illness that renders the 
caregiver incapable of caring for the child. ``Child'' means an 
individual who had not attained the age of 18 years.]
    (vii) The incapacitation of the defendant's spouse or registered 
partner when the defendant would be the only available caregiver for 
the spouse or registered partner.
    [``Incapacitation'' means the spouse or registered partner (I) has 
suffered a serious injury or suffers from a debilitating physical 
illness and the result of the injury or illness is that the spouse or 
registered partner is completely disabled, meaning that the spouse or 
registered partner cannot carry on any self-care and is totally 
confined to a bed or chair; or (II) has a severe cognitive deficit, 
caused by an illness or injury, that has severely affected the spouse's 
or registered partner's mental capacity or function but may not be 
confined to a bed or chair. ``Spouse'' means an individual in a 
relationship with the defendant, where that relationship has been 
legally recognized as a marriage, including a legally-recognized 
common-law marriage. ``Registered partner'' means an individual in 
relationship with the defendant, where the relationship has been 
legally recognized as a civil union or registered domestic 
partnership.]'';
    and in clause (viii), as so redesignated, by striking ``(i), (ii), 
and (iii)'' and inserting ``(i) through (vii)''.

3. Conditions of Probation and Supervised Release

    Synopsis of Proposed Amendment: This proposed amendment revises, 
clarifies, and rearranges the conditions of probation and supervised 
release. It is a result of the Commission's multi-year review of 
federal sentencing practices relating to conditions of probation and 
supervised release. See United States Sentencing Commission, ``Notice 
of Final Priorities,'' 80 FR 48957 (Aug. 14, 2015). It is also informed 
by a series of opinions issued by the Seventh Circuit in recent years.
    Specifically, the Seventh Circuit has found several of the standard 
conditions to be unduly vague, overbroad, or inappropriately applied. 
See, e.g., United States v. Adkins, 743 F.3d 176 (7th Cir. 2014); 
United States v. Goodwin, 717 F.3d 511 (7th Cir. 2013); United States 
v. Quinn, 698 F.3d 651 (7th Cir. 2012); United States v. Siegel, 753 
F.3d 705 (7th Cir. 2014). The Seventh Circuit has also suggested that 
the language of the conditions be revised to be more comprehensible to 
defendants and probation officers, and to contain a stated mens rea 
requirement where one was lacking. United States v. Kappes, 782 F.3d 
828, 848 (7th Cir. 2015) (``We have suggested that sentencing judges 
define the crucial terms in a condition in a way that provides clear 
notice to the defendant (preferably through objective rather than 
subjective terms), and/or includes a mens rea requirement (such as 
intentional conduct). We have further suggested that the judge make 
sure that each condition imposed is simply worded, bearing in mind 
that, with rare exceptions, neither the defendant nor the probation 
officer is a lawyer and that when released from prison the defendant 
will not have a lawyer to consult.'' (quotation and alteration marks 
omitted)).

The Statutory and Guidelines Framework

    When imposing a sentence of probation, the court is required to 
impose certain conditions of probation listed by statute. See 18 U.S.C. 
3563(a). In addition, the court has discretion to impose additional 
conditions of probation ``to the extent that such conditions are 
reasonably related to the factors set forth in sections 3553(a)(1) and 
(a)(2) and to the extent that such conditions involve only such 
deprivations of liberty or property as are reasonably necessary for the 
purposes indicated in section 3553(a)(2).'' See 18 U.S.C. 3563(b). 
Similarly, when imposing a sentence of supervised release, the court is 
required to impose certain conditions of supervised release listed by 
statute, and the court has discretion to impose additional conditions 
of supervised release, to the extent that the additional condition ``is 
reasonably related to the factors set forth in section 3553(a)(1), 
(a)(2)(B), (a)(2)(C), and (a)(2)(D)'' and ``involves no greater 
deprivation of liberty than is reasonably necessary for the purposes 
set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D).'' See 18 
U.S.C. 3583(d). The additional condition of supervised release must 
also be consistent with any pertinent policy statements issued by the 
Sentencing Commission. See 18 U.S.C. 3583(d)(3).
    In addition, the court is required to direct that the probation 
officer provide the defendant with a written statement that sets forth 
all the conditions to which he or she is subject, which must be 
``sufficiently clear and specific to serve as a guide for the 
defendant's conduct and for such supervision as is required.'' See 18 
U.S.C. 3563(d), 3583(f). The Judgment in a Criminal Case Form, AO 245B, 
sets forth a series of mandatory and ``standard'' conditions in 
standardized form and provides space for the court to impose additional 
``standard'' and ``special'' conditions devised by the court.
    The Commission is directed by its organic statute to promulgate 
policy statements on the appropriate use of the conditions of probation 
and supervised release. See 28 U.S.C. 994(a)(2)(B). Sections 5B1.3 
(Conditions of Probation) and 5D1.3 (Conditions of Supervised Release) 
implement this directive. Subsections (a) and (b) of Sec.  5B1.3 set 
forth the conditions of probation that are required by statute. 
Subsections (c), (d), and (e) of Sec.  5B1.3 provide guidance on 
discretionary conditions of probation, which are categorized as 
``standard'' conditions, ``special'' conditions, and ``additional'' 
special conditions, respectively. Subsections (a) through (e) of Sec.  
5D1.3 follow the same structure in setting forth the mandatory 
conditions of supervised release and providing guidance on 
discretionary conditions of supervised release.

The Proposed Changes to Sec. Sec.  5B1.3 and 5D1.3

    The changes made by the proposed amendment would revise, clarify, 
and rearrange the provisions in the Guidelines Manual on conditions of 
probation and supervised release. These changes would not necessarily 
affect the conditions of probation and supervised release as set forth 
in the Judgment in a Criminal Case Form, AO 245B. However, in light of 
the responsibilities

[[Page 2302]]

of the Judicial Conference of the United States and the Administrative 
Office of the United States Courts in this area, the Commission works 
with the Criminal Law Committee and the Probation and Pretrial Services 
Office on these issues and anticipates that the Commission's work on 
this proposed amendment may inform their consideration of possible 
changes to the judgment form.
    In general, the changes are intended to make the conditions more 
focused and precise as well as easier for defendants to understand and 
probation officers to enforce. For some conditions that do not have a 
mens rea standard, a ``knowing'' standard is inserted.
    First, the proposed amendment amends the ``mandatory'' conditions 
set forth in subsection (a) of Sec. Sec.  5B1.3 and 5D1.3. It inserts 
new language directing that, if there is a court-established payment 
schedule for making restitution or paying a special assessment, the 
defendant shall adhere to the schedule. See 18 U.S.C. 3572(d). This new 
language is similar to paragraph (14) of the ``standard'' conditions; 
accordingly, paragraph (14) of the ``standard'' conditions is deleted, 
as described below.
    Second, the proposed amendment amends the ``standard'' conditions 
set forth in subsection (c) of Sec. Sec.  5B1.3 and 5D1.3. Paragraphs 
(1)-(3), (5)-(6), and (9)-(13) are revised, clarified, and rearranged 
into a new set of paragraphs (1) through (12). A new paragraph (13) is 
added, which provides that the defendant ``must follow the instructions 
of the probation officer related to the conditions of supervision.''
    Several provisions are moved from the ``standard'' conditions list 
to the ``special'' conditions list, or vice versa. Specifically, 
paragraph (1) of the ``special'' conditions list (relating to 
possession of a firearm or dangerous weapon) is moved to the 
``standard'' conditions list. Paragraphs (4) and (7) of the 
``standard'' conditions list (relating to support of dependents and 
child support, and alcohol use, respectively) are moved to the 
``special'' conditions list. In addition, as mentioned above, paragraph 
(14) on the ``standard'' conditions list (relating to payment of 
special assessment) is incorporated into the ``mandatory'' conditions 
list. Finally, paragraph (8) of the ``standard'' conditions list 
(relating to frequenting places where controlled substances are 
trafficked) is deleted.
    Third, the proposed amendment adds two new provisions to the 
``special'' conditions set forth in subsection (d) of Sec. Sec.  5B1.3 
and 5D1.3. The first new provision, based on paragraph (7) of the 
``standard'' conditions, would specify that the defendant must not use 
or possess alcohol. The second new provision, based on paragraph (4) of 
the ``standard'' conditions, would specify that, if the defendant has 
one or more dependents, the defendant must support his or her 
dependents; and if the defendant is ordered by the government to make 
child support payments or to make payments to support a person caring 
for a child, the defendant must make the payments and comply with the 
other terms of the order.
    Issues for comment are also included.

Proposed Amendment:

    Section 5B1.3 is amended in subsection (a)(6) by inserting before 
the semicolon at the end the following: ``. If there is a court-
established payment schedule for making restitution or paying the 
assessment (see 18 U.S.C. 3572(d)), the defendant shall adhere to the 
schedule'';
    in subsection (b) by striking ``The'' and inserting the following:

``Discretionary Conditions

    The'';
    in subsection (c) by striking ``(Policy Statement) The'' and 
inserting the following:

`` `Standard' Conditions (Policy Statement)

    The'';
    and by striking paragraphs (1) through (14) and inserting the 
following:
    ``(1) The defendant must report to the probation office in the 
federal judicial district where he or she is authorized to reside 
within 72 hours of the time the defendant was sentenced, unless the 
probation officer tells the defendant to report to a different 
probation office or within a different time frame.
    (2) After initially reporting to the probation office, the 
defendant will receive instructions from the court or the probation 
officer about how and when to report to the probation officer, and the 
defendant must report to the probation officer as instructed.
    (3) The defendant must not knowingly leave the federal judicial 
district where he or she is authorized to reside without first getting 
permission from the court or the probation officer.
    (4) The defendant must [answer truthfully][be truthful when 
responding to] the questions asked by the probation officer.
    (5) The defendant must live at a place approved by the probation 
officer. If the defendant plans to change where he or she lives or 
anything about his or her living arrangements (such as the people the 
defendant lives with), the defendant must notify the probation officer 
at least 10 calendar days before the change. If notifying the probation 
officer in advance is not possible due to unanticipated circumstances, 
the defendant must notify the probation officer within 72 hours of 
becoming aware of a change or expected change.
    (6) The defendant must allow the probation officer to visit the 
defendant at his or her home or elsewhere, and the defendant must 
permit the probation officer to take any items prohibited by the 
conditions of the defendant's supervision that he or she observes in 
plain view.
    (7) The defendant must work full time (at least 30 hours per week) 
at a lawful type of employment, unless the probation officer excuses 
the defendant from doing so. If the defendant does not have full-time 
employment he or she must try to find full-time employment, unless the 
probation officer excuses the defendant from doing so. If the defendant 
plans to change where the defendant works or anything about his or her 
work (such as the position or the job responsibilities), the defendant 
must notify the probation officer at least 10 calendar days before the 
change. If notifying the probation officer in advance is not possible 
due to unanticipated circumstances, the defendant must notify the 
probation officer within 72 hours of becoming aware of a change or 
expected change.
    (8) The defendant must not communicate or interact with someone the 
defendant knows is engaged in criminal activity. If the defendant knows 
someone has been convicted of a felony, the defendant must not 
knowingly communicate or interact with that person without first 
getting the permission of the probation officer.
    (9) If the defendant is arrested or has any official contact with a 
law enforcement officer, the defendant must notify the probation 
officer within 72 hours.
    (10) The defendant must not own, possess, or have access to a 
firearm, ammunition, destructive device, or dangerous weapon (i.e., 
anything that was designed, or was modified for, the specific purpose 
of causing bodily injury or death to another person, such as nunchakus 
or tasers).
    (11) The defendant must not act or make any agreement with a law 
enforcement agency to act as a confidential human source or informant 
without first getting the permission of the court.
    (12) If the probation officer determines that the defendant poses a 
risk to another person (including an organization), the probation 
officer may require the defendant to tell the person

[[Page 2303]]

about the risk and the defendant must comply with that instruction. The 
probation officer may contact the person and confirm that the defendant 
has told the person about the risk.
    (13) The defendant must follow the instructions of the probation 
officer related to the conditions of supervision.'';
    and in subsection (d) by striking ``(Policy Statement) The'' and 
inserting the following:
    `` `Special' Conditions (Policy Statement)
    The'';
    by striking paragraph (1) and inserting the following:

``(1) Support of Dependents

    If the defendant--
    (A) has one or more dependents--a condition specifying that the 
defendant must support his or her dependents; and
    (B) is ordered by the government to make child support payments or 
to make payments to support a person caring for a child--a condition 
specifying that the defendant must make the payments and comply with 
the other terms of the order.'';
    and in paragraph (4) by striking ``Program Participation'' in the 
heading; by inserting ``(A)'' before ``a condition requiring''; and by 
inserting ``; and (B) a condition specifying that the defendant must 
not use or possess alcohol'' before the period at the end.
    Section 5D1.3 is amended in subsection (a)(6) by inserting before 
the semicolon at the end the following: ``. If there is a court-
established payment schedule for making restitution or paying the 
assessment (see 18 U.S.C. 3572(d)), the defendant shall adhere to the 
schedule'';
    in subsection (b) by striking ``The'' and inserting the following:

``Discretionary Conditions

    The'';
    in subsection (c) by striking ``(Policy Statement) The'' and 
inserting the following:
    `` `Standard' Conditions (Policy Statement)
    The'';
    and by striking paragraphs (1) through (15) and inserting the 
following:
    ``(1) The defendant must report to the probation office in the 
federal judicial district where he or she is authorized to reside 
within 72 hours of release from imprisonment, unless the probation 
officer tells the defendant to report to a different probation office 
or within a different time frame.
    (2) After initially reporting to the probation office, the 
defendant will receive instructions from the court or the probation 
officer about how and when to report to the probation officer, and the 
defendant must report to the probation officer as instructed.
    (3) The defendant must not knowingly leave the federal judicial 
district where he or she is authorized to reside without first getting 
permission from the court or the probation officer.
    (4) The defendant must [answer truthfully][be truthful when 
responding to] the questions asked by the probation officer.
    (5) The defendant must live at a place approved by the probation 
officer. If the defendant plans to change where he or she lives or 
anything about his or her living arrangements (such as the people the 
defendant lives with), the defendant must notify the probation officer 
at least 10 calendar days before the change. If notifying the probation 
officer in advance is not possible due to unanticipated circumstances, 
the defendant must notify the probation officer within 72 hours of 
becoming aware of a change or expected change.
    (6) The defendant must allow the probation officer to visit the 
defendant at his or her home or elsewhere, and the defendant must 
permit the probation officer to take any items prohibited by the 
conditions of the defendant's supervision that he or she observes in 
plain view.
    (7) The defendant must work full time (at least 30 hours per week) 
at a lawful type of employment, unless the probation officer excuses 
the defendant from doing so. If the defendant does not have full-time 
employment he or she must try to find full-time employment, unless the 
probation officer excuses the defendant from doing so. If the defendant 
plans to change where the defendant works or anything about his or her 
work (such as the position or the job responsibilities), the defendant 
must notify the probation officer at least 10 calendar days before the 
change. If notifying the probation officer in advance is not possible 
due to unanticipated circumstances, the defendant must notify the 
probation officer within 72 hours of becoming aware of a change or 
expected change.
    (8) The defendant must not communicate or interact with someone the 
defendant knows is engaged in criminal activity. If the defendant knows 
someone has been convicted of a felony, the defendant must not 
knowingly communicate or interact with that person without first 
getting the permission of the probation officer.
    (9) If the defendant is arrested or has any official contact with a 
law enforcement officer, the defendant must notify the probation 
officer within 72 hours.
    (10) The defendant must not own, possess, or have access to a 
firearm, ammunition, destructive device, or dangerous weapon (i.e., 
anything that was designed, or was modified for, the specific purpose 
of causing bodily injury or death to another person, such as nunchakus 
or tasers).
    (11) The defendant must not act or make any agreement with a law 
enforcement agency to act as a confidential human source or informant 
without first getting the permission of the court.
    (12) If the probation officer determines that the defendant poses a 
risk to another person (including an organization), the probation 
officer may require the defendant to tell the person about the risk and 
the defendant must comply with that instruction. The probation officer 
may contact the person and confirm that the defendant has told the 
person about the risk.
    (13) The defendant must follow the instructions of the probation 
officer related to the conditions of supervision.
    (14) The defendant shall notify the probation officer of any 
material change in the defendant's economic circumstances that might 
affect the defendant's ability to pay any unpaid amount of restitution, 
fines, or special assessments.'';
    and in subsection (d) by striking ``(Policy Statement) The'' and 
inserting the following:
    `` `Special' Conditions (Policy Statement)
    The'';
    by striking paragraph (1) and inserting the following:

``(1) Support of Dependents

    If the defendant--
    (A) has one or more dependents--a condition specifying that the 
defendant must support his or her dependents; and
    (B) is ordered by the government to make child support payments or 
to make payments to support a person caring for a child -- a condition 
specifying that the defendant must make the payments and comply with 
the other terms of the order.'';

and in paragraph (4) by striking ``Program Participation'' in the 
heading; by inserting ``(A)'' before ``a condition requiring''; and by 
inserting ``; and (B) a condition specifying that the defendant must 
not use or possess alcohol'' before the period at the end.

Issues for Comment:

    1. The Commission seeks comment on the bracketed options in 
paragraph (3) of the ``special'' conditions, which would

[[Page 2304]]

become (4) under the proposed amendment. Specifically, the proposed 
amendment brackets whether the defendant should ``answer truthfully'' 
the questions of the probation officer or, instead, should ``be 
truthful when responding to'' the questions of the probation officer. 
The Commission seeks comment on the policy implications and the Fifth 
Amendment implications of each of these bracketed options. Which 
option, if any, is appropriate? Should the Commission clarify that an 
offender's legitimate invocation of the Fifth Amendment privilege 
against self-incrimination in response to a probation officer's 
question shall not be considered a violation of this special condition?
    2. The Commission seeks comment on the standard condition of 
supervised release in Sec.  5D1.3(c)(15), which states that the 
defendant ``shall notify the probation officer of any material change 
in the defendant's economic circumstances that might affect the 
defendant's ability to pay any unpaid amount of restitution, fines, or 
special assessments.'' Under the proposed amendment, this would remain 
a standard condition and would be redesignated as subsection (c)(14). 
The Commission seeks comment on whether this condition should be made a 
special condition rather than a standard condition.

4. Animal Fighting

    Synopsis of Proposed Amendment: This proposed amendment revises 
Sec.  2E3.1 (Gambling; Animal Fighting Offenses) to provide higher 
penalties for animal fighting offenses and to respond to two new 
offenses, relating to attending an animal fighting venture, established 
by section 12308 of the Agricultural Act of 2014, Public Law 113-79 
(Feb. 7, 2014).
    Animal fighting ventures are prohibited by the Animal Welfare Act, 
7 U.S.C. 2156. Under that statute, an ``animal fighting venture'' is an 
event that involves a fight between at least two animals for purposes 
of sport, wagering, or entertainment. See 7 U.S.C. 2156(g)(1). Section 
2156 prohibits a range of conduct relating to animal fighting ventures, 
including making it unlawful to knowingly--
     sponsor or exhibit an animal in an animal fighting 
venture, see Sec.  2156(a)(1);
     sell, buy, possess, train, transport, deliver, or receive 
an animal for purposes of having the animal participate in an animal 
fighting venture, see Sec.  2156(b);
     advertise an animal (or a sharp instrument designed to be 
attached to the leg of a bird) for use in an animal fighting venture or 
promoting or in any other manner furthering an animal fighting venture, 
see Sec.  2156(c); and
     sell, buy, transport, or deliver a sharp instrument 
designed to be attached to the leg of a bird for use in an animal 
fighting venture, see Sec.  2156(e).
    The criminal penalties for violations of section 2156 are provided 
in 18 U.S.C. 49. For any violation of section 2156 listed above, the 
statutory maximum term of imprisonment is 5 years. See 18 U.S.C. 49(a).
    However, two new types of animal fighting offenses were added by 
the Agricultural Act of 2014. They make it unlawful to knowingly--
     attend an animal fighting venture, see Sec.  
2156(a)(2)(A); or
     cause an individual under 16 to attend an animal fighting 
venture, see Sec.  2156(a)(2)(B).
    The statutory maximum is 3 years if the offense of conviction is 
causing an individual under 16 to attend an animal fighting venture, 
see 18 U.S.C. 49(c), and 1 year if the offense of conviction is 
attending an animal fighting venture, see 18 U.S.C. 49(b).
    All offenses under section 2156 are referenced in Appendix A 
(Statutory Index) to Sec.  2E3.1 (Gambling Offenses; Animal Fighting 
Offenses). Under the penalty structure of that guideline, a defendant 
convicted of an animal fighting offense receives a base offense level 
of 12 if the offense involved gambling--specifically, if the offense 
was engaging in a gambling business, transmitting wagering information, 
or part of a commercial gambling operation--and a base offense level of 
10 otherwise. The guideline contains no specific offense 
characteristics. There is an upward departure provision if an animal 
fighting offense involves exceptional cruelty.

Higher Penalties for Animal Fighting Offenses

    First, the proposed amendment revises Sec.  2E3.1 to provide a base 
offense level of [14][16] if the offense involved an animal fighting 
venture.
    In addition, it revises the existing upward departure provision to 
cover not only offenses involving exceptional cruelty but also offenses 
involving animal fighting on an exceptional scale.

New Offenses Relating to Attending an Animal Fighting Venture

    Next, the proposed amendment responds to the two new offenses 
relating to attendance at an animal fighting venture. It establishes 
new base offense levels for such offenses. Specifically, a base offense 
level of [8][10] in Sec.  2E3.1 would apply if the defendant was 
convicted under section 2156(a)(2)(B) (causing an individual under 16 
to attend an animal fighting venture). The class A misdemeanor at 
section 2156(a)(2)(A) (attending an animal fighting venture) would not 
be referenced in Appendix A (Statutory Index) to Sec.  2E3.1; it would 
receive a base offense level of 6 in Sec.  2X5.2 (Class A Misdemeanors 
(Not Covered by Another Specific Offense Guideline)).
    Issues for comment are also included.

Proposed Amendment:

    Section 2E3.1 is amended in subsection (a) by striking subsection 
(a)(2); by redesignating subsections (a)(1) and (a)(3) as subsections 
(a)(2) and (a)(4), respectively; by striking ``or'' in subsection 
(a)(2), as so redesignated; by inserting before subsection (a)(2) (as 
so redesignated) the following new subsection (a)(1):
    ``(1) [14][16], if the offense involved an animal fighting venture, 
except as provided in subdivision (3) below;'';
    and by inserting before subsection (a)(4), as so redesignated, the 
following new subsection (b)(3):
    ``(3) [8][10], if the defendant was convicted under 7 U.S.C. 
2156(a)(2)(B); or''.
    The Commentary to Sec.  2E3.1 captioned ``Statutory Provisions'' is 
amended by inserting after ``7 U.S.C. 2156'' the following: ``(felony 
provisions only)''.
    The Commentary to Sec.  2E3.1 captioned ``Application Notes'' is 
amended in Note 2 by striking ``If the offense involved extraordinary 
cruelty to an animal that resulted in, for example, maiming or death to 
an animal, an upward departure may be warranted.'', and inserting 
``There may be cases in which the offense level determined under this 
guideline substantially understates the seriousness of the offense. In 
such cases, an upward departure may be warranted. For example, an 
upward departure may be warranted if (A) the offense involved 
extraordinary cruelty to an animal; or (B) the offense involved animal 
fighting on an exceptional scale (such as an offense involving an 
unusually large number of animals).''.
    Appendix A (Statutory Index) is amended in the line referenced to 7 
U.S.C. 2156 by inserting after ``Sec.  2156'' the following: ``(felony 
provisions only)''.

Issues for Comment:

    1. The Commission seeks comment on offenses involving animal 
fighting. How prevalent are these offenses, and do the guidelines 
adequately address these offenses? If not, how should the

[[Page 2305]]

Commission revise the guidelines to provide appropriate penalties in 
such cases?
    What, if any, aggravating and mitigating factors are involved in 
these offenses that the guidelines should take into account? Should the 
Commission provide new departure provisions, enhancements, adjustments, 
or minimum offense levels to account for such aggravating or mitigating 
factors? If so, what should the Commission provide, and with what 
penalty levels?
    For example, should the Commission provide an enhancement if the 
defendant possessed a dangerous weapon (including a firearm)? Should 
the Commission provide an enhancement if the defendant was in the 
business of breeding, selling, buying, possessing, training, 
transporting, delivering, or receiving animals for use in animal 
fighting ventures, or brokering such activities?
    2. The proposed amendment includes an upward departure provision if 
the offense involved animal fighting ``on an exceptional scale (such as 
an offense involving an unusually large number of animals).'' What 
additional guidance, if any, should the Commission provide on what 
constitutes animal fighting on an exceptional scale?
    Under the proposed amendment, the factors of exceptional cruelty 
and exceptional scale are departure provisions. Should the Commission 
provide enhancements, rather than departure provisions, for these 
factors? If so, what penalty levels should be provided?
    3. The Commission seeks comment on how the multiple count rules 
should operate when the defendant is convicted of multiple counts of 
animal fighting offenses. How, if at all, should the guideline 
calculation be affected by the presence of multiple counts of 
conviction? For example, should the Commission specify that multiple 
counts involving animal fighting ventures are to be grouped together 
under subsection (d) of Sec.  3D1.2 (Groups of Closely Related Counts)? 
Should the Commission specify that multiple counts involving animal 
fighting ventures are not to be grouped together?

5. Child Pornography Circuit Conflicts

    Synopsis of Proposed Amendment: This proposed amendment addresses 
circuit conflicts and application issues that have arisen when applying 
the guidelines to child pornography offenses. One of the issues 
typically arises under both the child pornography production guideline 
and the child pornography distribution guideline when the offense 
involves victims who are unusually young and vulnerable. The other two 
issues typically arise when the offense involves a peer-to-peer file-
sharing program or network. These issues were noted by the Commission 
in its 2012 report to Congress on child pornography offenses. See 
United States Sentencing Commission, ``Report to the Congress: Federal 
Child Pornography Offenses'' at 33-35 (2012), available at http://www.ussc.gov/news/congressional-testimony-and-reports/sex-offense-topics/report-congress-federal-child-pornography-offenses.

Offenses Involving Unusually Young and Vulnerable Minors

    First, the proposed amendment responds to differences among the 
circuits in cases in which the offense involves minors who are 
unusually young and vulnerable (such as infants or toddlers). The 
production guideline provides a 4-level enhancement if the offense 
involved a minor who had not attained the age of 12 years and a 2-level 
enhancement if the minor had not attained the age of 16 years. See 
Sec.  2G2.1(b)(1). A similar tiered enhancement is contained in Sec.  
2G2.6 (Child Exploitation Enterprises). See Sec.  2G2.6(b)(1). The non-
production guideline provides a 2-level enhancement if the material 
involved a prepubescent minor or a minor who had not attained the age 
of 12 years. See Sec.  2G2.2(b)(2).
    These three guidelines do not provide a further enhancement for 
cases in which the victim was unusually young and vulnerable. However, 
the adjustment at Sec.  3A1.1(b)(1) provides a 2-level increase if the 
defendant knew or should have known that the victim was a ``vulnerable 
victim,'' i.e., a victim ``who is unusually vulnerable due to age, 
physical or mental condition, or who is otherwise particularly 
susceptible to the criminal conduct.'' See Sec.  3A1.1, comment. (n.2). 
The Commentary further provides:
    Do not apply subsection (b) if the factor that makes the person a 
vulnerable victim is incorporated in the offense guideline. For 
example, if the offense guideline provides an enhancement for the age 
of the victim, this subsection would not be applied unless the victim 
was unusually vulnerable for reasons unrelated to age.
    See Sec.  3A1.1, comment. (n.2).
    There are differences among the circuits over whether the 
vulnerable victim adjustment applies when the victim is extremely 
young, such as an infant or toddler. The Ninth Circuit has indicated 
that the under-12 enhancement ``does not take especially vulnerable 
stages of childhood into account'' and that, ``[t]hough the 
characteristics of being an infant or toddler tend to correlate with 
age, they can exist independently of age, and are not the same thing as 
merely not having `attained the age of twelve years.' '' United States 
v. Wright, 373 F.3d 935, 943 (9th Cir. 2004). Accordingly, it held, a 
vulnerable victim adjustment may be applied based on extreme youth and 
small physical size, such as when the victim is in the infant or 
toddler stage. Id. Similarly, the Fifth Circuit has stated, ``we do not 
see any logical reason why a `victim under the age of twelve' 
enhancement should bar application of the `vulnerable victim' 
enhancement when the victim is especially vulnerable, even as compared 
to most children under twelve.'' United States v. Jenkins, 712 F.3d 
209, 214 (5th Cir. 2013).
    The Fourth Circuit, in contrast, has indicated that the vulnerable 
victim adjustment may not be applied based solely on extreme youth or 
on factors that are for conditions that ``necessarily are related to . 
. . age.'' United States v. Dowell, 771 F.3d 162, 175 (4th Cir. 2014). 
The line drawn by the under-12 enhancement ``implicitly preclude[s] 
courts from drawing additional lines below that point,'' and ``once the 
offense involves a child under twelve, any additional considerations 
based solely on age simply are not appropriate to the Guidelines 
calculation.'' Id.
    The proposed amendment generally adopts the approach of the Fifth 
and Ninth Circuits. It amends the Commentary in the child pornography 
guidelines to provide that application of the age enhancement does not 
preclude application of the vulnerable victim adjustment. Specifically, 
if the minor's extreme youth and small physical size made the minor 
especially vulnerable compared to most minors under the age of 12 
years, Sec.  3A1.1(b) applies, assuming the mens rea requirement of 
Sec.  3A1.1(b) is also met (i.e., the defendant knew or should have 
known of this vulnerability).

Two Issues Relating to the Tiered Enhancement for Distribution in Sec.  
2G2.2

    Second, the proposed amendment responds to differences among the 
circuits in applying the tiered enhancement for distribution in Sec.  
2G2.2(b)(3), which provides an enhancement ranging from 2 levels to 7 
levels depending on specific factors.
    There are two related issues that typically arise in child 
pornography cases when the offense involves a peer-to-peer file-sharing 
program or network. The first issue is when a participant's use of a 
peer-to-peer file sharing

[[Page 2306]]

program or network warrants at minimum a 2-level enhancement under 
subsection (b)(3)(F). The second issue is when, if at all, the use of a 
peer-to-peer file sharing program or network warrants a 5-level 
enhancement under (b)(3)(B) instead.
(1) The 2-Level Distribution Enhancement at Subsection (b)(3)(F)
    The Fifth, Tenth, and Eleventh Circuits have each held that the 2-
level distribution enhancement applies if the defendant used a file 
sharing program, regardless of whether he did so purposefully, 
knowingly, or negligently. See, e.g., United States v. Baker, 742 F.3d 
618, 621 (5th Cir. 2014) (the enhancement applies ``regardless of the 
defendant's mental state''); United States v. Ray, 704 F.3d 1307, 1312 
(10th Cir. 2013) (the enhancement ``does not require that a defendant 
know about the distribution capability of the program he is using''; 
the enhancement ``requires no particular state of mind''); United 
States v. Creel, 783 F.3d 1357, 1360 (11th Cir. 2015) (``No element of 
mens rea is expressed or implied . . . The definition requires only 
that the `act . . . relates to the transfer of child pornography.' '').
    The Second, Fourth, and Fifth Circuits, in contrast, have held that 
the 2-level distribution enhancement requires a showing that the 
defendant knew, or at least acted in reckless disregard of, the file 
sharing properties of the program. See, e.g., United States v. Baldwin, 
743 F.3d 357, 361 (2nd Cir. 2015) (requiring knowledge); United States 
v. Robinson, 714 F.3d 466, 468 (7th Cir. 2013) (knowledge); United 
States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009) (knowledge or 
reckless disregard).
    Other circuits appear to follow somewhat different approaches. The 
Eighth Circuit has stated that knowledge is required, but knowledge may 
be inferred from the fact that a file sharing program was used, absent 
``concrete evidence'' of ignorance. United States v. Dodd, 598 F.3d 
449, 452 (8th Cir. 2010). The Sixth Circuit has stated in an 
unpublished opinion that there is a ``presumption'' that ``users of 
file-sharing software understand others can access their files.'' 
United States v. Conner, 521 Fed. App'x 493, 499 (6th Cir. 2013).
    The proposed amendment generally adopts the approach of the Second, 
Fourth, and Fifth Circuits. It amends subsection (b)(3)(F) to provide 
that the 2-level enhancement requires ``knowing'' distribution by the 
defendant.
    As a conforming change, the proposed amendment also revises the 2-
level distribution enhancement at Sec.  2G2.1(b)(3) to provide that the 
enhancement requires that the defendant knowingly distributed.
(2) The 5-Level Distribution Enhancement at Subsection (b)(3)(B)
    The 5-level distribution enhancement at subsection (b)(3)(B) 
applies if the offense involved distribution ``for the receipt, or 
expectation of receipt, of a thing of value, but not for pecuniary 
gain.'' The Commentary provides, as one example, that in a case 
involving the bartering of child pornographic material, the ``thing of 
value'' is the material received in exchange.
    The circuits have taken different approaches to this issue. The 
Fifth Circuit has indicated that when the defendant knowingly uses file 
sharing software, the requirements for the 5-level enhancement are 
generally satisfied. See United States v. Groce, 784 F.3d 291, 294 (5th 
Cir. 2015) (``Generally, when a defendant knowingly uses peer-to-peer 
file sharing software . . . he engages in the kind of distribution 
contemplated by'' the 5-level enhancement).
    The Fourth Circuit appears to have a higher standard. It has 
required the government to show that the defendant (1) ``knowingly made 
child pornography in his possession available to others by some 
means''; and (2) did so ``for the specific purpose of obtaining 
something of valuable consideration, such as more pornography.'' United 
States v. McManus, 734 F.3d 315, 319 (4th Cir. 2013).
    The proposed amendment revises subsection (b)(3)(B) to clarify that 
the enhancement applies if the defendant distributed in exchange for 
any valuable consideration. Specifically, this means that the defendant 
agreed to an exchange with another person under which the defendant 
knowingly distributed to that other person for the specific purpose of 
obtaining something of valuable consideration from that other person, 
such as other child pornographic material, preferential access to child 
pornographic material, or access to a child.

Proposed Amendment:

    Section 2G2.1 is amended in subsection (b)(3) by striking ``offense 
involved distribution'' and inserting ``defendant knowingly 
distributed''.
    The Commentary to Sec.  2G2.1 captioned ``Application Notes'' is 
amended by redesignating Notes 2 through 6 as Notes 3 through 7, 
respectively, and by inserting after Note 1 the following new Note 2:
    ``2. Interaction of Age Enhancement (Subsection (b)(1)) and 
Vulnerable Victim (Sec.  3A1.1(b)).--If subsection (b)(1) applies, 
Sec.  3A1.1(b) ordinarily would not apply unless the minor was 
unusually vulnerable for reasons unrelated to age. See Sec.  3A1.1, 
comment. (n.2). However, if the minor's extreme youth and small 
physical size made the minor especially vulnerable compared to most 
minors under the age of 12 years, and the defendant knew or should have 
known this, apply Sec.  3A1.1(b).''.
    Section 2G2.2 is amended in subsection (b)(3) by striking ``If the 
offense involved'';
    in subparagraphs (A), (C), (D), and (E) by striking 
``Distribution'' and inserting ``If the offense involved 
distribution'';
    in subparagraph (B) by striking ``Distribution for the receipt, or 
expectation of receipt, of a thing of value,'' and inserting ``If the 
defendant distributed in exchange for any valuable consideration,'';
    and in subparagraph (F) by striking ``Distribution'' and inserting 
``If the defendant knowingly distributed,''.
    The Commentary to Sec.  2G2.2 captioned ``Application Notes'' is 
amended in Note 1 by striking the paragraph that begins `` 
`Distribution for the receipt, or expectation of receipt, of a thing of 
value, but not for pecuniary gain' means'' and inserting `` `The 
defendant distributed in exchange for any valuable consideration' means 
the defendant agreed to an exchange with another person under which the 
defendant knowingly distributed to that other person for the specific 
purpose of obtaining something of valuable consideration from that 
other person, such as other child pornographic material, preferential 
access to child pornographic material, or access to a child.'';
    and by redesignating Notes 2 through 7 as Notes 3 through 8, 
respectively, and by inserting after Note 1 the following new Note 2:
    ``2. Interaction of Age Enhancement (Subsection (b)(2)) and 
Vulnerable Victim (Sec.  3A1.1(b)).--If subsection (b)(2) applies, 
Sec.  3A1.1(b) ordinarily would not apply unless the minor was 
unusually vulnerable for reasons unrelated to age. See Sec.  3A1.1, 
comment. (n.2). However, if the minor's extreme youth and small 
physical size made the minor especially vulnerable compared to most 
minors under the age of 12 years, and the defendant knew or should have 
known this, apply Sec.  3A1.1(b).''.
    The Commentary to Sec.  2G2.6 captioned ``Application Notes'' is 
amended by redesignating Notes 2 and 3 as Notes 3

[[Page 2307]]

and 4, respectively, and by inserting after Note 1 the following new 
Note 2:
    ``2. Interaction of Age Enhancement (Subsection (b)(1)) and 
Vulnerable Victim (Sec.  3A1.1(b)).--If subsection (b)(1) applies, 
Sec.  3A1.1(b) ordinarily would not apply unless the minor was 
unusually vulnerable for reasons unrelated to age. See Sec.  3A1.1, 
comment. (n.2). However, if the minor's extreme youth and small 
physical size made the minor especially vulnerable compared to most 
minors under the age of 12 years, and the defendant knew or should have 
known this, apply Sec.  3A1.1(b).''.

Issues for Comment

    1. With respect to the interaction of the age enhancements and the 
vulnerable victim adjustment, the proposed amendment would respond to 
the circuit conflict by clarifying the circumstances under which the 
vulnerable victim adjustment would also apply. Should the Commission 
use a different approach to resolving the circuit conflict? If so, what 
approach should the Commission use to clarify how the age enhancements 
interact with the vulnerable victim adjustment? For example, should the 
Commission revise the tiered age enhancements to provide an additional 
tier, 2 levels higher than the existing tiers, for cases involving 
unusually young and vulnerable victims, such as infants or toddlers? In 
the alternative, should the Commission provide an upward departure 
provision to address this factor?
    Application Note 2 to Sec.  3A1.1 provides that, ``if the offense 
guideline provides an enhancement for the age of the victim, this 
subsection would not be applied unless the victim was unusually 
vulnerable for reasons unrelated to age.'' Should the Commission revise 
this provision to change or clarify how age enhancements in the 
guidelines (whether for child pornography offenses or otherwise) 
interact with the vulnerable victim adjustment? For example, should the 
Commission change ``unless the victim was unusually vulnerable for 
reasons unrelated to age'' to ``unless the victim was unusually 
vulnerable for reasons not based on age per se''?
    2. With respect to the 2-level distribution enhancement, the 
proposed amendment generally adopts the approach of the circuits that 
require ``knowing'' distribution. The Commission seeks comment on 
whether a different approach should be used, particularly in cases 
involving a file sharing program or network. For example, should the 
Commission provide a bright-line rule that use of a file sharing 
program qualifies for the 2-level enhancement, even in cases where the 
defendant was in fact ignorant that use of the program would result in 
files being shared to others?
    3. With respect to the 5-level distribution enhancement, the 
proposed amendment would generally require an agreement with another 
person in which the defendant trades child pornography for other child 
pornography or another thing of value, such as access to a child. The 
Commission seeks comment on whether a different approach should be 
used, particularly in cases involving a file sharing program or 
network. For example, should the Commission provide a bright-line rule 
that use of a file sharing program qualifies for the 5-level 
enhancement?
    4. The proposed amendment amends Sec.  2G2.2 to provide that the 2-
level enhancement at subsection (b)(3) requires ``knowing'' 
distribution by the defendant. Should the Commission change any other 
enhancements in subsection (b) from an ``offense involved'' approach to 
a ``defendant-based'' approach? If so, should the Commission include a 
culpable state of mind requirement, such as, for example, requiring 
``knowing'' distribution by the defendant?
    5. The guideline for obscenity offenses, Sec.  2G3.1 (Importing, 
Mailing, or Transporting Obscene Matter; Transferring Obscene Matter to 
a Minor; Misleading Domain Names), contains a tiered distribution 
enhancement similar to the tiered distribution enhancement in Sec.  
2G2.2. If the Commission were to make revisions to the tiered 
distribution enhancement in Sec.  2G2.2, should the Commission make 
similar revisions to Sec.  2G3.1?

6. Immigration

    Synopsis of Proposed Amendment: This proposed amendment is a result 
of the Commission's multi-year study of the guidelines applicable to 
immigration offenses and related criminal history rules. See United 
States Sentencing Commission, ``Notice of Final Priorities,'' 80 FR 
48957 (Aug. 14, 2015). The Commission is publishing this proposed 
amendment to inform the Commission's consideration of these issues.
    The proposed amendment contains two parts. The Commission is 
considering whether to promulgate any one or both of these parts, as 
they are not necessarily mutually exclusive. They are as follows--
    Part A revises the alien smuggling guideline at Sec.  2L1.1 
(Smuggling, Transporting, or Harboring an Unlawful Alien). An issue for 
comment is also provided.
    Part B revises the illegal reentry guideline at Sec.  2L1.2 
(Unlawfully Entering or Remaining in the United States). Issues for 
comment are also included.

(A) Alien Smuggling

    Synopsis of Proposed Amendment: This part of the proposed amendment 
revises the alien smuggling guideline at Sec.  2L1.1 (Smuggling, 
Transporting, or Harboring an Unlawful Alien). The Commission has 
received comment expressing concern that the guideline provides for 
inadequate sentences for alien smugglers, particularly those who 
smuggle unaccompanied minors. See, e.g., Annual Letter from the 
Department of Justice to the Commission (July 24, 2015), at http://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/20150727/DOJ.pdf.
    First, the proposed amendment revises the alternative base offense 
levels at Sec.  2L1.1(a). Two options are provided. Option 1 would 
raise the base offense level at subsection (a)(3) from 12 to [16]. 
Option 2 adds an alternative base offense level of [16] if the 
defendant smuggled, transported, or harbored an unlawful alien as part 
of an ongoing commercial organization.
    Second, the proposed amendment addresses offenses involving 
unaccompanied minors in alien smuggling offenses. The Department of 
Justice in its annual letter to the Commission has suggested that the 
enhancement for smuggling, transporting, or harboring unaccompanied 
minors under Sec.  2L1.1(b)(4) is inadequate in light of the serious 
nature of such offenses. The Department states that ``[t]hese smugglers 
often treat children as human cargo and subject them to a multitude of 
abuses throughout a long and dangerous journey, including sexual 
assault, extortion, and other crimes.'' The proposed amendment would 
amend Sec.  2L1.1 to address the issue of unaccompanied minors. The 
proposed amendment first amends Sec.  2L1.1(b)(4) to make the 
enhancement offense-based (with a mens rea requirement) as opposed to 
exclusively defendant-based. The proposed amendment would also amend 
the commentary to Sec.  2L1.1 to clarify that the term ``serious bodily 
injury'' included in subsection (b)(7)(B) has the meaning given to that 
term in the Commentary to Sec.  1B1.1 (Application Instructions), which 
states that ``serious bodily injury'' is deemed to have occurred if the 
offense involved conduct constituting criminal sexual abuse under 18 
U.S.C. 2241 or Sec.  2242 or any similar offense under state law.

[[Page 2308]]

    Finally, the proposed amendment would revise the definition of 
``minor'' for purposes of the ``unaccompanied minor'' enhancement at 
Sec.  2L1.1(b)(4) and change it from minors under the age of 16 to 
minors under the age of [18]. The proposed amendment also brackets the 
possibility of including a new departure provision in the commentary to 
Sec.  2L1.1 for cases in which the offense involved the smuggling, 
transporting, or harboring of six or more unaccompanied minors.
    An issue for comment is also provided.

Proposed Amendment

    Section 2L1.1 is amended--
    [Option 1:
    in subsection (a)(3) by striking ``12, otherwise'' and inserting 
``[16], otherwise'';]
    [Option 2:
    in subsection (a) by redesignating paragraph (3) as paragraph (4), 
and by inserting after paragraph (2) the following new paragraph (3):
    ``(3) [16], if the defendant smuggled, transported, or harbored an 
unlawful alien as part of an ongoing commercial organization; or'';]
    and in subsection (b)(4) by striking ``If the defendant smuggled, 
transported, or harbored a minor who was unaccompanied by the minor's 
parent or grandparent'' and inserting ``If the offense involved the 
smuggling, transporting, or harboring of a minor who the defendant knew 
[or had reason to believe] was unaccompanied by the minor's parent or 
grandparent''.
    The Commentary to Sec.  2L1.1 captioned ``Application Notes'' is 
amended--
    in Note 1--
    [Option 2 (continued):
    by inserting before the paragraph that begins `` `The offense was 
committed other than for profit' means'' the following new paragraph:
    `` `As part of an ongoing commercial organization' means that the 
defendant participated (A) in a continuing organization or enterprise 
of five or more persons that had as one of its primary purposes the 
smuggling, transporting, or harboring of unlawful aliens for profit, 
and (B) with knowledge [or reason to believe] that the members of the 
continuing organization or enterprise smuggled, transported, or 
harbored different groups of unlawful aliens on more than one 
occasion.'';]
    in the paragraph that begins `` `Minor' means'' by striking ``16 
years'' and inserting ``[18] years'';
    and by inserting after the paragraph that begins ```Parent' means'' 
the following new paragraph:
    `` `Bodily injury,' `serious bodily injury,' and `permanent or 
life-threatening bodily injury' have the meaning given those terms in 
the Commentary to Sec.  1B1.1 (Application Instructions).'';
    by redesignating Notes 2 through 6 as Notes 3 through 7, 
respectively, and by inserting after Note 1 the following new Note 2:
    ``2. Application of Subsection (b)(7) to Conduct Constituting 
Criminal Sexual Abuse.--Consistent with Application Note 1(L) of Sec.  
1B1.1 (Application Instructions), `serious bodily injury' is deemed to 
have occurred if the offense involved conduct constituting criminal 
sexual abuse under 18 U.S.C. 2241 or Sec.  2242 or any similar offense 
under state law.'';
    and in Note 4, as so redesignated, by inserting at the end the 
following new subdivision:
    ``[(D) The offense involved the smuggling, transporting, or 
harboring of six or more minors who were unaccompanied by their parents 
or grandparents.]''.

Issue for Comment

    1. The Department of Justice has stated that alien smuggling 
offenses often involved sexual abuse of the aliens smuggled, 
transported, or harbored, particularly of unaccompanied minors. The 
proposed amendment would amend the commentary to Sec.  2L1.1 to clearly 
state that the term ``serious bodily injury'' included in subsection 
(b)(7)(B) has the meaning given to that term in the Commentary to Sec.  
1B1.1 (Application Instructions), which is deemed to have occurred if 
the offense involved conduct constituting criminal sexual abuse under 
18 U.S.C. 2241 or Sec.  2242 or any similar offense under state law. 
The Commission invites comment on whether the 4-level enhancement at 
Sec.  2L1.1(b)(7)(B) adequately accounts for cases in which the offense 
covered by this guideline involved sexual abuse of an alien who was 
smuggled, transported, or harbored. If not, what revisions to Sec.  
2L1.1 would be appropriate to account for this conduct? For example, 
should the Commission provide one or more specific offense 
characteristics or departure provisions to better account for this 
conduct? If so, what should the Commission provide?

(B) Illegal Reentry

    Synopsis of the Proposed Amendment: This part of the proposed 
amendment is also informed by the Commission's recent report on 
offenders sentenced under Sec.  2L1.2 (Unlawfully Entering or Remaining 
in the United States). See United States Sentencing Commission, Illegal 
Reentry Offenses (2015), available at http://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-and-surveys/immigration/2015_Illegal-Reentry-Report.pdf.
    The key findings from the report include--
     the average sentence for illegal reentry offenders was 18 
months;
     all but two of the 18,498 illegal reentry offenders--
including the 40 percent with the most serious criminal histories 
triggering a statutory maximum penalty of 20 years under 8 U.S.C. 
1326(b)(2)--were sentenced at or below the ten-year statutory maximum 
under 8 U.S.C. 1326(b)(1) for offenders with less serious criminal 
histories (i.e., those without ``aggravated felony'' convictions);
     the rate of within-guideline range sentences was 
significantly lower among offenders who received 16-level enhancements 
pursuant to Sec.  2L1.2(b)(1)(A) for predicate convictions (31.3%), as 
compared to the within-range rate for those who received no 
enhancements under Sec.  2L1.2(b) (92.7%);
     significant differences in the rates of application of the 
various enhancements in Sec.  2L1.2(b) appeared among the districts 
where most illegal reentry offenders were prosecuted;
     the average illegal reentry offender was deported 3.2 
times before his instant illegal reentry prosecution, and over one-
third (38.1%) were previously deported after a prior illegal entry or 
illegal reentry conviction;
     61.9 percent of offenders were convicted of at least one 
criminal offense after illegally reentering the United States;
     4.7 percent of illegal reentry offenders had no prior 
convictions and not more than one prior deportation before their 
instant illegal reentry prosecutions; and
     most illegal reentry offenders were apprehended by 
immigration officials at or near the border.
    The statutory penalty structure for illegal reentry offenses is 
based on whether the defendant had a criminal conviction before he or 
she was deported. The offense of illegal reentry, set forth in 8 U.S.C. 
1326, applies to defendants who previously were deported from, or 
unlawfully remained in, the United States. Specifically, the statutory 
maximum term of imprisonment is--
     two years, in general (see 8 U.S.C. 1326(a)); but
     10 years, if the defendant was deported after sustaining 
(A) three misdemeanor convictions involving drugs or crimes against the 
person, or

[[Page 2309]]

both, or (B) one felony conviction (see 8 U.S.C. Sec.  1326(b)(1)); or
     20 years, if the defendant was deported after sustaining 
an ``aggravated felony''--a term that covers a range of offense types, 
listed in 8 U.S.C. Sec.  1101(a)(43), that includes such different 
offense types as murder and tax evasion (see 8 U.S.C. Sec.  
1326(b)(2)).
    The penalty structure of the guideline is similar to the statutory 
penalty structure. The guideline provides a base offense level of 8 and 
a tiered enhancement based on whether the defendant had a criminal 
conviction before he or she was deported. Specifically, the enhancement 
is--
     4 levels, for (A) three misdemeanor convictions for crimes 
of violence or drug trafficking offenses, or (B) any felony (see Sec.  
2L1.2(b)(1)(D),(E));
     8 levels, for an ``aggravated felony'' (see Sec.  
2L1.2(b)(1)(C));
     12 levels, for a felony drug trafficking offense for which 
the sentence imposed was 13 months or less (see Sec.  2L1.2(b)(1)(B)); 
and
     16 levels, for specific types of felonies: a drug 
trafficking offense for which the sentence imposed was more than 13 
months, a crime of violence, a firearms offense, a child pornography 
offense, a national security or terrorism offense, a human trafficking 
offense, or an alien smuggling offense (see Sec.  2L1.2(b)(1)(A)).
    The penalties in the illegal reentry statute apply based on the 
criminal convictions the defendant had before he or she was deported, 
regardless of the age of the prior conviction. Likewise, until 2011, 
the enhancements in Sec.  2L1.2 applied regardless of the age of the 
prior conviction. In 2011, the Commission revised the guideline to 
provide that the 16- and 12-level enhancements would be reduced to 12 
and 8 levels, respectively, if the conviction was too remote in time 
(too ``stale'') to receive criminal history points under the timing 
limits set forth in Chapter Four (Criminal History and Criminal 
Livelihood). See USSG App. C, Amend. 754 (effective Nov. 1, 2011). The 
other enhancements continue to apply regardless of the age of the prior 
conviction (i.e., without regard to whether the conviction receives 
criminal history points). See Sec.  2L1.2, comment. (n.1(C)).
    Part B of the proposed amendment amends Sec.  2L1.2 to lessen the 
emphasis on pre-deportation convictions by providing new enhancements 
for more recent, post-reentry convictions and a corresponding reduction 
in the enhancements for past, pre-deportation convictions. The 
enhancements for these convictions would be based on the sentence 
imposed rather than on the type of offense (e.g., ``crime of 
violence'')--in other words, the proposed amendment would eliminate the 
use of the ``categorical approach'' for predicate felony convictions in 
Sec.  2L1.2. Also, the proposed amendment accounts for prior 
convictions for illegal reentry separately from other types of 
convictions.
    First, the proposed amendment amends subsection (a) of Sec.  2L1.2 
to provide alternative base offense levels of [14] and [12] if the 
defendant had one or more prior convictions for illegal reentry 
offenses under 8 U.S.C. 1253, Sec.  1325(a), or Sec.  1326. For 
defendants without such prior convictions, the proposed amendment 
increases the otherwise applicable base offense level from 8 to [10]. 
The alternative base offense levels at subsection (a) apply without 
regard to whether the prior conviction receives criminal history 
points.
    Second, the proposed amendment changes how subsection (b)(1) 
accounts for pre-deportation convictions--basing them not on the type 
of offense (e.g., ``crime of violence'') but on the length of the 
sentence imposed for a felony conviction. The proposed amendment 
incorporates these new enhancements in subdivision (A) through (C) at 
subsection (b)(1). Specifically, if the defendant had a felony 
conviction and the sentence imposed was [24] months or more, an 
enhancement of [8] levels would apply. If the defendant had a felony 
conviction and the sentence imposed was at least [12] months but less 
than [24] months, an enhancement of [6] levels would apply. If the 
defendant had a felony conviction and the sentence imposed was less 
than [12] months, an enhancement of [4] levels would apply. Finally, an 
enhancement of [2] levels would apply if the defendant had three or 
more convictions for misdemeanors involving drugs or crimes against the 
person. If more than one of these enhancements apply, the court is 
instructed to apply the greatest.
    Third, the proposed amendment would permit prior convictions to be 
considered under subsection (b)(1) only if they receive criminal 
history points under Chapter Four.
    To account for post-reentry criminal activity, the proposed 
amendment inserts a new subsection (b)(2) to provide a tiered 
enhancement for a defendant who engaged in criminal conduct resulting 
in a conviction for one or more felony offenses after the defendant's 
first deportation or first order of removal. The structure of the new 
subsection (b)(2) parallels the proposed changes to subsection (b)(1), 
both in the sentence length required and the level of enhancement to be 
applied. As with subsection (b)(1), prior convictions would be 
considered under subsection (b)(2) only if they receive criminal 
history points under Chapter Four.
    Finally, the proposed amendment provides a new departure provision 
for cases in which the defendant was previously deported on multiple 
occasions not reflected in prior convictions under 8 U.S.C. 1253, Sec.  
1325(a), or Sec.  1326. It also revises the departure provision based 
on seriousness of a prior conviction to bring it more into parallel 
with Sec.  4A1.3 (Adequacy of Criminal History Category) and provide 
examples related to: (1) cases in which serious offenses do not qualify 
for an adjustment under subsection (b)(1) and the new subsection (b)(2) 
because they did not receive criminal history points; and (2) for cases 
in which a defendant committed one or more felony offenses but no 
conviction resulted from the commission of such offense or offenses. 
The proposed amendment also brackets the possibility of deleting the 
departure based on time served in state custody.
    In addition, the proposed amendment would make conforming changes 
to the application notes, including the consolidation of all guideline 
definitions in one place.
    Issues for comment are also included.

Proposed Amendment

    Section 2L1.2 is amended--
    in subsection (a) by striking ``Base Offense Level: 8'' and 
inserting the following:
    ``Base Offense Level (Apply the Greatest):
    (1) [14], if the defendant committed the instant offense of 
conviction after sustaining two or more convictions for illegal reentry 
offenses;
    (2) [12], if the defendant committed the instant offense of 
conviction after sustaining a conviction for an illegal reentry 
offense;
    (3) [10], otherwise.'';
    in subsection (b) by striking ``Characteristic'' in the heading and 
inserting ``Characteristics''; by striking subsection (b)(1) and 
inserting the following new subsection (b)(1):
    ``(1) Apply the Greatest:
    If, before the defendant's first deportation or first order of 
removal, the defendant sustained--
    (A) a conviction for a felony offense (other than an illegal 
reentry offense) for which the sentence imposed was [24] months or 
more, increase by [8] levels;
    (B) a conviction for a felony offense (other than an illegal 
reentry offense) for

[[Page 2310]]

which the sentence imposed was at least [12] months but less than [24] 
months, increase by [6] levels;
    (C) a conviction for a felony offense (other than an illegal 
reentry offense) for which the sentence imposed was less than [12] 
months, increase by [4] levels; or
    (D) three or more convictions for misdemeanors involving drugs, 
crimes against the person, or both, increase by [2] levels.'';
    and by inserting at the end the following new subsection (b)(2):
    ``(2) Apply the Greatest:
    If, at any time after the defendant's first deportation or first 
order of removal, the defendant engaged in criminal conduct resulting 
in--
    (A) a conviction for a felony offense (other than an illegal 
reentry offense) for which the sentence imposed was [24] months or 
more, increase by [8] levels;
    (B) a conviction for a felony offense (other than an illegal 
reentry offense) for which the sentence imposed was at least [12] 
months but less than [24] months, increase by [6] levels;
    (C) a conviction for a felony offense (other than an illegal 
reentry offense) for which the sentence imposed was less than [12] 
months, increase by [4] levels; or
    (D) three or more convictions for misdemeanors involving drugs, 
crimes against the person, or both, increase by [2] levels.''.
    The Commentary to Sec.  2L1.2 captioned ``Statutory Provisions'' is 
amended by inserting after ``8 U.S.C.'' the following: ``Sec.  1253,''.
    The Commentary to Sec.  2L1.2 captioned ``Application Notes'' is 
amended--
    in Note 1, in the heading, by striking ``Subsection (b)(1)'' and 
inserting ``Subsections (b)(1) and (b)(2)'';
    in Note 1(A) by striking ``For purposes of subsection (b)(1)'' and 
inserting ``For purposes of this guideline'';
    by striking Notes 1(B) and 1(C), and inserting the following new 
Note 1(B):
    ``(B) Interaction of Subsections (b)(1) and (b)(2).--Subsections 
(b)(1) and (b)(2) are intended to divide the defendant's criminal 
history into two time periods. Subsection (b)(1) reflects the 
convictions, if any, that the defendant sustained before his first 
deportation or order of removal (whichever event occurs first). 
Subsection (b)(2) reflects the convictions, if any, that the defendant 
sustained after that event (when the criminal conduct that resulted in 
the conviction took place after that event).'';
    by striking Notes 2 through 7 and inserting the following new Notes 
2, 3, 4, and 5:
    ``2. Definitions.--For purposes of this guideline:
    `Felony' means any federal, state, or local offense punishable by 
imprisonment for a term exceeding one year.
    `Illegal reentry offense' means (A) an offense under 8 U.S.C. 1253 
or Sec.  1326, or (B) a second or subsequent offense under 8 U.S.C. 
1325(a) (regardless of whether the conviction was designated a felony 
or misdemeanor).
    `Misdemeanor' means any federal, state, or local offense punishable 
by a term of imprisonment of one year or less.
    `Sentence imposed' has the meaning given the term `sentence of 
imprisonment' in Application Note 2 and subsection (b) of Sec.  4A1.2 
(Definitions and Instructions for Computing Criminal History), without 
regard to the date of the conviction. The length of the sentence 
imposed includes any term of imprisonment given upon revocation of 
probation, parole, or supervised release, but only if the revocation 
occurred before the defendant was deported or unlawfully remained in 
the United States.
    `Three or more convictions' means at least three convictions for 
offenses that are not treated as a single sentence pursuant to 
subsection (a)(2) of Sec.  4A1.2 (Definitions and Instructions for 
Computing Criminal History).
    3. Criminal History Points.--The alternative base offense levels at 
subsection (a) apply without regard to whether a conviction for an 
illegal reentry offense receives criminal history points. However, for 
purposes of applying subsections (b)(1) and (b)(2), use only those 
convictions that receive criminal history points under Sec.  4A1.1(a), 
(b), or (c), and that are counted separately under Sec.  4A1.2(a)(2).
    A conviction taken into account under subsection (a) or (b) is not 
excluded from consideration of whether that conviction receives 
criminal history points pursuant to Chapter Four, Part A (Criminal 
History).
    4. Departure Based on Multiple Prior Deportations not Reflected in 
Prior Convictions.--There may be cases in which the alternative base 
offense levels at subsections (a)(1) and (a)(2) do not apply and the 
defendant was previously deported (voluntarily or involuntarily) on 
multiple occasions not reflected in prior convictions under 8 U.S.C. 
1253, Sec.  1325(a), or Sec.  1326. In such a case, an upward departure 
may be warranted to reflect both the increased culpability of a 
defendant with multiple prior deportations, as well as the increased 
risk of future illegal reentry (as reflected in the defendant's record 
of multiple prior deportations). For example, an upward departure may 
be warranted for a defendant who is convicted under 8 U.S.C. 1326 for 
the first time but was deported five times prior to the instant offense 
of illegal reentry.
    5. Departure Based on Seriousness of Criminal History.--There may 
be cases in which the applicable offense level substantially overstates 
or understates the seriousness of a defendant's criminal history. In 
such a case, a departure may be warranted. See Sec.  4A1.3 (Departures 
Based on Inadequacy of Criminal History Category (Policy Statement)). 
Examples: (A) In a case in which an adjustment under subsection (b)(1) 
or (b)(2) does not apply because a prior serious conviction (e.g., 
murder) is not within the time limits set forth in Sec.  4A1.2(e) and 
did not receive criminal history points, an upward departure may be 
warranted to reflect the serious nature of the defendant's prior 
conviction. (B) In a case in which a defendant committed one or more 
felony offenses but subsections (b)(1) and (b)(2) do not apply because 
no conviction resulted from the commission of such offense or offenses, 
an upward departure may be warranted.'';
    [by striking Note 8 as follows:
    8. Departure Based on Time Served in State Custody.--In a case in 
which the defendant is located by immigration authorities while the 
defendant is serving time in state custody, whether pre- or post-
conviction, for a state offense, the time served is not covered by an 
adjustment under Sec.  5G1.3(b) and, accordingly, is not covered by a 
departure under Sec.  5K2.23 (Discharged Terms of Imprisonment). See 
Sec.  5G1.3(a). In such a case, the court may consider whether a 
departure is appropriate to reflect all or part of the time served in 
state custody, from the time immigration authorities locate the 
defendant until the service of the federal sentence commences, that the 
court determines will not be credited to the federal sentence by the 
Bureau of Prisons. Any such departure should be fashioned to achieve a 
reasonable punishment for the instant offense.
    Such a departure should be considered only in cases where the 
departure is not likely to increase the risk to the public from further 
crimes of the defendant. In determining whether such a departure is 
appropriate, the court should consider, among other things, (A) whether 
the defendant engaged in additional criminal activity after illegally 
reentering the United States; (B) the seriousness of any such 
additional criminal activity, including (1) whether the defendant used 
violence or credible threats of violence or possessed a firearm or 
other dangerous

[[Page 2311]]

weapon (or induced another person to do so) in connection with the 
criminal activity, (2) whether the criminal activity resulted in death 
or serious bodily injury to any person, and (3) whether the defendant 
was an organizer, leader, manager, or supervisor of others in the 
criminal activity; and (C) the seriousness of the defendant's other 
criminal history.'';]
    and by redesignating Note 9 as Note 6.

Issues for Comment

    1. Some commentators have expressed concern about the operation of 
the illegal reentry guideline and the severity of the enhancements 
available in subsection (b) for some offenders. The Commission's recent 
report found that the rate of within-range sentences differed 
substantially depending on the level of enhancement under Sec.  
2L1.2(b)(1). The rate of within-guideline range sentences was 
significantly lower among defendants who received the 16-level 
enhancement (31.3%) as compared to the within-range rate for those who 
received no enhancements (92.7%). The report showed that the greater 
enhancements result in the lowest within-range sentences (52.5% within 
range for 4-level enhancement, 46.7% within range for 8-level 
enhancement, 32.8% within range for 12-level enhancement).
    The Commission seeks comment on whether illegal reentry offenses 
are adequately addressed by the guidelines. Should the Commission 
consider amending Sec.  2L1.2 and, if so, how?
    2. Currently, Sec.  2L1.2 requires the court to classify the 
defendant's prior convictions by type (e.g., is it a ``crime of 
violence'' or is it an ``aggravated felony''?), a task that involves 
the Supreme Court's ``categorical approach.'' In recent years, the 
Commission has received commentary from stakeholders in the federal 
criminal justice system--including district and circuit judges, federal 
probation officers, the Department of Justice, and some defense 
counsel--that the use of a ``categorical approach'' to determine if a 
predicate conviction qualifies for an enhancement under Sec.  2L1.2(b) 
requires a cumbersome, overly detailed, and resource-intensive legal 
analysis that often is under- or over-inclusive regarding the actual 
seriousness of offenders' predicate convictions. See, e.g., Comment 
Received by the Commission in Response to Request for Public Comment on 
Proposed Priorities from 2010 to 2015 (available on the Commission's 
Web site at www.ussc.gov/amendment-process/public-comment). Cf. 
Almanza-Arenda v. Lynch, __F.3d __, 2015 WL 9462976 at *8-*9 (9th Cir. 
Dec. 28, 2015) (Owens, J., concurring, joined by Tallman, Bybee & 
Callahan) (``The bedeviling . . . [`]categorical approach' will 
continue to spit out intra- and inter-circuit splits and confusion, 
which are inevitable when we have hundreds of federal judges reviewing 
thousands of criminal state laws and certain documents to determine if 
an offense is `categorically['] [a predicate offense]. . . . A better 
mousetrap is long overdue. Rather than compete with Rube Goldberg, we 
instead should look to a more objective standard, such as the length of 
the underlying sentence [to determine what is a predicate offense].'').
    The proposed amendment would eliminate the use of the ``categorical 
approach'' for predicate felony convictions and provide for 
enhancements based on the sentence imposed rather than on the type of 
offense. What are the advantages and disadvantages of basing the 
enhancement on the type of the prior conviction? What are the 
advantages and disadvantages of basing the enhancement on the length of 
the sentence imposed on the prior conviction? If the Commission were to 
adopt the sentence-imposed model, are the 24- and 12-month gradations 
included in the proposed amendment appropriate? Should the Commission 
adopt different gradations, such as the ones currently used in Chapter 
Four of the Guidelines Manual (i.e., ``exceeding one year and one 
month'' and ``at least sixty days''), or more or fewer gradations? If 
the Commission were to provide a different approach to apply the 
enhancements at Sec.  2L1.2, what should that different approach be?
    3. As noted in the Commission's recent report, both the illegal 
reentry statute and Sec.  2L1.2 provide enhanced penalties only if the 
defendant sustained a conviction before being deported. A defendant 
receives at most a single enhancement under Sec.  2L1.2--based on the 
most serious conviction. Additional convictions that occurred before 
the defendant's most recent deportation, and convictions that occurred 
after the defendant's most recent illegal reentry, are not taken into 
account in the calculation of the offense level (although they may be 
taken into account in the criminal history score).
    Should the Commission amend how the enhancements at Sec.  2L1.2 
work and, if so, how? Should the Commission amend Sec.  2L1.2 to 
account not only for pre-deportation convictions but also for other 
aggravating factors relevant to a defendant's culpability and need for 
incapacitation and deterrence?
    For example, the proposed amendment would amend subsection (a) of 
Sec.  2L1.2 to provide alternative base offense levels if the defendant 
had one or more prior convictions for illegal reentry offenses under 8 
U.S.C. Sec.  1253, Sec.  1325(a), or Sec.  1326. What are the 
advantages and disadvantages of basing alternative base offense levels 
on illegal reentry convictions? Should the Commission use a different 
approach for such alternative base offense levels? Should the 
Commission use deportations and orders of removal instead to apply the 
base offense levels?
    If the Commission provided additional enhancements to account for 
aggravating factors relevant to a defendant's culpability other than 
pre-deportation convictions, how should these enhancements interact? 
How much weight should be given to pre-deportation convictions in 
relation to prior illegal reentry convictions or post-reentry 
convictions in driving the guideline range? Should the guideline 
provide greater emphasis on one or more of these factors? For example, 
should the guideline give more weight to post-reentry convictions and 
less weight to pre-deportation convictions (e.g., a 10-level 
enhancement for a post-reentry conviction for which the sentence 
imposed was 24 months or more with a corresponding 6-level enhancement 
for a pre-deportation conviction for which the sentence imposed was 24 
months or more)?
    What other aggravating factors, if any, should the Commission 
incorporate into Sec.  2L1.2, and how should the Commission incorporate 
them? Should the factor be an enhancement, an alternative base offense 
level, a minimum offense level, an upward departure provision, or some 
combination of these? If so, what level of enhancement should apply?
    What mitigating factors, if any, should the Commission incorporate 
into Sec.  2L1.2, and how should the Commission incorporate them? For 
example, should the Commission provide a new departure provision for 
cases in which the defendant's predicate felony conviction is based on 
an offense that was classified by the laws of the state as a 
misdemeanor?
    4. Currently, Sec.  2L1.2 provides enhanced penalties based on 
convictions sustained prior to the defendant's most recent deportation 
from the United States. The proposed amendment would modify how the 
enhancements work in the illegal reentry guideline. Specifically, it 
would divide the defendant's criminal history

[[Page 2312]]

into two time periods. Subsection (b)(1) would reflect the convictions 
that the defendant sustained before his or her first deportation or 
order of removal (whichever event occurs first). Subsection (b)(2) 
would then reflect the convictions that the defendant sustained after 
that event (when the criminal conduct that resulted in the conviction 
took place after that event).
    What are the advantages and disadvantages of using a particular 
deportation or order of removal as the determining event for whether a 
prior conviction qualifies for an enhancement under subsection (b)(1) 
or subsection (b)(2)? Should the Commission use a different approach to 
distinguish pre-deportation convictions from post-reentry convictions? 
For example, should the Commission provide instead that a prior 
conviction sustained before any deportation would qualify for an 
enhancement for pre-deportation convictions? If so, how should such 
enhancement interact with an enhancement based on post-reentry 
convictions as provided in the proposed amendment?
    5. In 2014, the Commission amended the Commentary to Sec.  2L1.1 to 
add a departure provision for cases in which the defendant is located 
by immigration authorities while the defendant is in state custody for 
a state offense unrelated to the federal illegal reentry offense. In 
such a case, the time served is not covered by adjustment under Sec.  
5G1.3 (Imposition of a Sentence on a Defendant Subject to an 
Undischarged Term of Imprisonment or Anticipated State Term of 
Imprisonment) and, accordingly, is not covered by a departure under 
Sec.  5K2.23 (Discharged Terms of Imprisonment). Under the current 
guideline, the departure allows courts to depart to reflect all or part 
of the time served in state custody for the unrelated offense, from the 
time federal immigration authorities locate the defendant until the 
service of the federal sentence commences, that the court determines 
will not be credited to the federal sentence by the Bureau of Prisons. 
The proposed amendment brackets the possibility of deleting the 
departure provision at Application Note 8 to Sec.  2L1.2.
    If the Commission were to promulgate the proposed amendment 
revising how the enhancements at the illegal reentry guideline work, 
should the Commission delete the departure based on time served in 
state custody? If not, how should the new enhancements at Sec.  2L1.2 
interact with the departure provision? For example, should the 
Commission limit the applicability of the departure provision?
    6. The Commission recently promulgated an amendment that amends the 
definition of ``crime of violence'' in subsection (a) of Sec.  4B1.2 
(Definitions of Terms Used in Section 4B1.1), effective August 1, 2016 
(to be published in a forthcoming edition of the Federal Register). The 
changes made by that amendment include revising the list of enumerated 
offenses and adding definitions for the enumerated offenses of 
extortion and a forcible sex offense. Finally, the amendment includes a 
downward departure provision in Sec.  4B1.1 for cases in which the 
defendant's prior ``crime of violence'' or ``controlled substance 
offense'' is based on an offense that was classified by the laws of the 
state as a misdemeanor.
    The proposed amendment would eliminate the use of the term ``crime 
of violence'' in Sec.  2L1.2. In the event that the Commission does not 
promulgate the proposed amendment, and retains the term ``crime of 
violence'' in Sec.  2L1.2, should the Commission incorporate all or 
part of the definition of ``crime of violence'' provided in the 
recently amended Sec.  4B1.2 into Sec.  2L1.2? If the Commission were 
to conform Sec.  2L1.2 to the new definition in Sec.  4B1.2(a), are 
there any particular offenses that would no longer qualify as a ``crime 
of violence'' but that nonetheless should receive an enhancement under 
subsection (b)(1) (e.g., statutory rape or burglary of a dwelling)?

[FR Doc. 2016-00766 Filed 1-14-16; 8:45 am]
 BILLING CODE 2210-40-P



                                                                                 Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Notices                                             2295

                                                    Issued in Washington, DC, on January 11,              advisory committee under 5 U.S.C. App.                 sentencing guidelines, policy
                                                  2016, under authority delegated in 49 CFR               2, 3.                                                  statements, and commentary. This
                                                  1.97.                                                      Although the Treasury’s final                       notice sets forth the proposed
                                                  John A. Gale,                                           announcement of financing plans may                    amendments and, for each proposed
                                                  Director, Office of Standards and                       not reflect the recommendations                        amendment, a synopsis of the issues
                                                  Rulemaking.                                             provided in reports of the Committee,                  addressed by that amendment. This
                                                  [FR Doc. 2016–00626 Filed 1–14–16; 8:45 am]             premature disclosure of the Committee’s                notice also sets forth a number of issues
                                                  BILLING CODE 4910–60–P                                  deliberations and reports would be                     for comment, some of which are set
                                                                                                          likely to lead to significant financial                forth together with the proposed
                                                                                                          speculation in the securities market.                  amendments, and one of which
                                                                                                          Thus, this meeting falls within the                    (regarding retroactive application of
                                                  DEPARTMENT OF THE TREASURY                              exemption covered by 5 U.S.C.                          proposed amendments) is set forth in
                                                                                                          552b(c)(9)(A).                                         the SUPPLEMENTARY INFORMATION portion
                                                  Departmental Offices; Debt                                 Treasury staff will provide a technical             of this notice.
                                                  Management Advisory Committee                           briefing to the press on the day before                   The proposed amendments and issues
                                                  Meeting                                                 the Committee meeting, following the                   for comment in this notice are as
                                                                                                          release of a statement of economic                     follows:
                                                     Notice is hereby given, pursuant to 5
                                                                                                          conditions and financing estimates. This                  (1) A multi-part proposed amendment
                                                  U.S.C. App. 2, 10(a)(2), that a meeting
                                                                                                          briefing will give the press an                        to the Guidelines Manual to respond to
                                                  will be held at the Hay-Adams Hotel,
                                                                                                          opportunity to ask questions about                     recently enacted legislation and
                                                  16th Street and Pennsylvania Avenue
                                                                                                          financing projections. The day after the               miscellaneous guideline issues,
                                                  NW., Washington, DC, on February 2,                     Committee meeting, Treasury will
                                                  2016 at 11:30 a.m. of the following debt                                                                       including (A) revisions to Appendix A
                                                                                                          release the minutes of the meeting, any
                                                  management advisory committee:                                                                                 (Statutory Index) to respond to new
                                                                                                          charts that were discussed at the
                                                     Treasury Borrowing Advisory                                                                                 offenses established by the Uniting and
                                                                                                          meeting, and the Committee’s report to
                                                  Committee of The Securities Industry                                                                           Strengthening America by Fulfilling
                                                                                                          the Secretary.
                                                  and Financial Markets Association.                                                                             Rights and Ensuring Effective Discipline
                                                                                                             The Office of Debt Management is
                                                     The agenda for the meeting provides                                                                         Over Monitoring Act (USA FREEDOM
                                                                                                          responsible for maintaining records of
                                                  for a charge by the Secretary of the                                                                           Act) of 2015, Public Law 114–23 (June
                                                                                                          debt management advisory committee
                                                  Treasury or his designate that the                                                                             2, 2015), and related issues for
                                                                                                          meetings and for providing annual
                                                  Committee discuss particular issues and                                                                        comment; (B) revisions to Appendix A
                                                                                                          reports setting forth a summary of
                                                  conduct a working session. Following                                                                           (Statutory Index) to respond to changes
                                                                                                          Committee activities and such other
                                                  the working session, the Committee will                                                                        made by the Bipartisan Budget Act of
                                                                                                          matters as may be informative to the
                                                  present a written report of its                                                                                2015, Public Law 114–74 (Nov. 2, 2015),
                                                                                                          public consistent with the policy of 5
                                                  recommendations. The meeting will be                                                                           to existing criminal statutes, and related
                                                                                                          U.S.C. 552(b). The Designated Federal
                                                  closed to the public, pursuant to 5                                                                            issues for comment; (C) a revision to
                                                                                                          Officer or other responsible agency
                                                  U.S.C. App. 2, 10(d) and Public Law                                                                            Appendix A (Statutory Index) to
                                                                                                          official who may be contacted for
                                                  103–202, 202(c)(1)(B) (31 U.S.C. 3121                                                                          reference offenses under 18 U.S.C. 1715
                                                                                                          additional information is Fred
                                                  note).                                                                                                         (Firearms as nonmailable items) to
                                                                                                          Pietrangeli, Director for Office of Debt
                                                     This notice shall constitute my                                                                             § 2K2.1 (Unlawful Receipt, Possession,
                                                                                                          Management (202) 622–1876.
                                                  determination, pursuant to the authority                                                                       or Transportation of Firearms or
                                                  placed in heads of agencies by 5 U.S.C.                   Dated: January 8, 2016.                              Ammunition; Prohibited Transactions
                                                  App. 2, 10(d) and vested in me by                       James Clark,                                           Involving Firearms or Ammunition) and
                                                  Treasury Department Order No. 101–05,                   Deputy Assistant Secretary for Federal                 a revision to § 2K2.1 to establish a base
                                                  that the meeting will consist of                        Finance.                                               offense level for such offenses, and a
                                                  discussions and debates of the issues                   [FR Doc. 2016–00527 Filed 1–14–16; 8:45 am]            related issue for comment; and (D) a
                                                  presented to the Committee by the                       BILLING CODE 4810–25–M                                 technical amendment to the Background
                                                  Secretary of the Treasury and the                                                                              Commentary to § 2T1.6 (Failing to
                                                  making of recommendations of the                                                                               Collect or Truthfully Account for and
                                                  Committee to the Secretary, pursuant to                 UNITED STATES SENTENCING                               Pay Over Tax);
                                                  Public Law 103–202, 202(c)(1)(B). Thus,                 COMMISSION                                                (2) a two-part proposed amendment to
                                                  this information is exempt from                                                                                the policy statement pertaining to
                                                  disclosure under that provision and 5                   Sentencing Guidelines for United                       ‘‘compassionate release,’’ § 1B1.13
                                                  U.S.C. 552b(c)(3)(B). In addition, the                  States Courts                                          (Reduction in Term of Imprisonment as
                                                  meeting is concerned with information                   AGENCY:  United States Sentencing                      a Result of Motion by Director of Bureau
                                                  that is exempt from disclosure under 5                  Commission.                                            of Prisons), including (A) a detailed
                                                  U.S.C. 552b(c)(9)(A). The public interest               ACTION: Notice of proposed amendments
                                                                                                                                                                 request for comment on whether any
                                                  requires that such meetings be closed to                to sentencing guidelines, policy                       changes should be made to the policy
                                                  the public because the Treasury                         statements, and commentary. Request                    statement and (B) a proposed
                                                  Department requires frank and full                      for public comment, including public                   amendment illustrating one possible set
                                                  advice from representatives of the                      comment regarding retroactive                          of changes to the policy statement, i.e.,
mstockstill on DSK4VPTVN1PROD with NOTICES




                                                  financial community prior to making its                 application of any of the proposed                     to reflect the criteria set forth in the
                                                  final decisions on major financing                      amendments; public hearing.                            program statement used by the Bureau
                                                  operations. Historically, this advice has                                                                      of Prisons;
                                                  been offered by debt management                         SUMMARY:   Pursuant to section 994(a),                    (3) a proposed amendment to §§ 5B1.3
                                                  advisory committees established by the                  (o), and (p) of title 28, United States                (Conditions of Probation) and 5D1.3
                                                  several major segments of the financial                 Code, the United States Sentencing                     (Conditions of Supervised Release) to
                                                  community. When so utilized, such a                     Commission is considering                              revise, clarify, and rearrange the
                                                  committee is recognized to be an                        promulgating certain amendments to the                 provisions in the Guidelines Manual on


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                                                  2296                           Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Notices

                                                  conditions of probation and supervised                  tiered enhancement for defendants who                  enhancement of [2][4][6] levels indicates
                                                  release, and related issues for comment;                engage in criminal conduct after                       that the Commission is considering, and
                                                     (4) a proposed amendment to § 2E3.1                  reentering the United States; (iv)                     invites comment on, alternative policy
                                                  (Gambling; Animal Fighting Offenses) to                 correspondingly reduce the existing                    choices regarding the appropriate level
                                                  provide higher penalties for animal                     tiered enhancement at subsection (b)(1)                of enhancement. Similarly, bracketed
                                                  fighting offenses and to respond to two                 for defendants who had one or more                     text within a specific offense
                                                  new offenses relating to attending an                   prior convictions before being deported;               characteristic or application note means
                                                  animal fighting venture that were                       and (v) related issues for comment.                    that the Commission specifically invites
                                                  established by section 12308 of the                     DATES: (1) Written Public Comment.—                    comment on whether the proposed
                                                  Agricultural Act of 2014, Public Law                    Written public comment regarding the                   provision is appropriate. Second, the
                                                  113–79 (Feb. 7, 2014), and related issues               proposed amendments and issues for                     Commission has highlighted certain
                                                  for comment;                                            comment set forth in this notice,                      issues for comment and invites
                                                     (5) a proposed amendment to the                      including public comment regarding                     suggestions on how the Commission
                                                  child pornography guidelines, §§ 2G2.1                  retroactive application of any of the                  should respond to those issues.
                                                  (Sexually Exploiting a Minor by                         proposed amendments, should be                            The Commission requests public
                                                  Production of Sexually Explicit Visual                  received by the Commission not later                   comment regarding whether, pursuant
                                                  or Printed Material; Custodian                          than March 21, 2016.                                   to 18 U.S.C. 3582(c)(2) and 28 U.S.C.
                                                  Permitting Minor to Engage in Sexually                     (2) Public Hearings.—The                            994(u), any proposed amendment
                                                  Explicit Conduct; Advertisement for                     Commission plans to hold public                        published in this notice should be
                                                  Minors to Engage in Production), 2G2.2                  hearings regarding the proposed                        included in subsection (d) of § 1B1.10
                                                  (Trafficking in Material Involving the                  amendments and issues for comment set                  (Reduction in Term of Imprisonment as
                                                  Sexual Exploitation of a Minor;                         forth in this notice on February 17,                   a Result of Amended Guideline Range
                                                  Receiving, Transporting, Shipping,                      2016, and March 16, 2016. Further                      (Policy Statement)) as an amendment
                                                  Soliciting, or Advertising Material                     information regarding the public                       that may be applied retroactively to
                                                  Involving the Sexual Exploitation of a                  hearings, including requirements for                   previously sentenced defendants. The
                                                  Minor; Possessing Material Involving                    testifying and providing written                       Commission lists in § 1B1.10(d) the
                                                  the Sexual Exploitation of a Minor with                 testimony, as well as the location, time,              specific guideline amendments that the
                                                  Intent to Traffic; Possessing Material                  and scope of the hearings, will be                     court may apply retroactively under 18
                                                  Involving the Sexual Exploitation of a                  provided by the Commission on its Web                  U.S.C. 3582(c)(2). The background
                                                  Minor), and 2G2.6 (Child Exploitation                   site at www.ussc.gov.                                  commentary to § 1B1.10 lists the
                                                  Enterprises), to address circuit conflicts                                                                     purpose of the amendment, the
                                                                                                          ADDRESSES: Public comment should be
                                                  and application issues that have arisen                                                                        magnitude of the change in the
                                                                                                          sent to the Commission by electronic
                                                  when applying these guidelines,                                                                                guideline range made by the
                                                                                                          mail or regular mail. The email address
                                                  including issues in (A) application of                                                                         amendment, and the difficulty of
                                                                                                          for public comment is Public_
                                                  the vulnerable victim adjustment when                                                                          applying the amendment retroactively
                                                                                                          Comment@ussc.gov. The regular mail
                                                  the offense involves minors who are                                                                            to determine an amended guideline
                                                                                                          address for public comment is United
                                                  unusually young and vulnerable (such                                                                           range under § 1B1.10(b) as among the
                                                                                                          States Sentencing Commission, One
                                                  as infants or toddlers) and (B)                                                                                factors the Commission considers in
                                                  application of the tiered distribution                  Columbus Circle NE., Suite 2–500,
                                                                                                          Washington, DC 20002–8002, Attention:                  selecting the amendments included in
                                                  enhancement and, in particular,                                                                                § 1B1.10(d). To the extent practicable,
                                                  determining the appropriate tier of                     Public Affairs.
                                                                                                          FOR FURTHER INFORMATION CONTACT: Matt                  public comment should address each of
                                                  enhancement to apply when the offense
                                                                                                          Osterrieder, Legislative Specialist, (202)             these factors.
                                                  involves a peer-to-peer file-sharing                                                                              Publication of a proposed amendment
                                                  program or network, and related issues                  502–4500, pubaffairs@ussc.gov.
                                                                                                          SUPPLEMENTARY INFORMATION: The
                                                                                                                                                                 requires the affirmative vote of at least
                                                  for comment; and                                                                                               three voting members and is deemed to
                                                     (6) a multi-part proposed amendment                  United States Sentencing Commission is
                                                                                                          an independent agency in the judicial                  be a request for public comment on the
                                                  to the guidelines for immigration
                                                                                                          branch of the United States                            proposed amendment. See Rules 2.2 and
                                                  offenses, including (A) revisions to
                                                                                                          Government. The Commission                             4.4 of the Commission’s Rules of
                                                  § 2L1.1 (Smuggling, Transporting, or
                                                                                                          promulgates sentencing guidelines and                  Practice and Procedure. In contrast, the
                                                  Harboring an Unlawful Alien) to
                                                                                                          policy statements for federal courts                   affirmative vote of at least four voting
                                                  provide options for raising the base
                                                  offense level for alien smuggling                       pursuant to 28 U.S.C. 994(a). The                      members is required to promulgate an
                                                  offenses and address offenses involving                 Commission also periodically reviews                   amendment and submit it to Congress.
                                                  unaccompanied minors in alien                           and revises previously promulgated                     See Rule 2.2; 28 U.S.C. 994(p).
                                                                                                                                                                    Additional information pertaining to
                                                  smuggling offenses, and a related issue                 guidelines pursuant to 28 U.S.C. 994(o)
                                                                                                                                                                 the proposed amendments described in
                                                  for comment, and (B) revisions to                       and submits guideline amendments to
                                                                                                                                                                 this notice may be accessed through the
                                                  § 2L1.2 (Unlawfully Entering or                         the Congress not later than the first day
                                                                                                                                                                 Commission’s Web site at www.ussc.gov
                                                  Remaining in the United States) to (i)                  of May each year pursuant to 28 U.S.C.
                                                  generally reduce the use of the                         994(p).                                                  Authority: 28 U.S.C. 994(a), (o), (p), (x);
                                                  ‘‘categorical approach’’ in applying the                   The proposed amendments in this                     USSC Rules of Practice and Procedure, Rule
                                                  guidelines by measuring the seriousness                 notice are presented in one of two                     4.4.
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                                                  of a defendant’s prior conviction by the                formats. First, some of the amendments                 Patti B. Saris,
                                                  length of the sentence imposed on the                   are proposed as specific revisions to a                Chair.
                                                  prior conviction rather than by the type                guideline or commentary. Bracketed text
                                                  of offense (e.g., ‘‘crime of violence’’); (ii)          within a proposed amendment indicates                  1. Miscellaneous
                                                  provide higher alternative base offense                 a heightened interest on the                              Synopsis of Proposed Amendment:
                                                  levels for defendants who have one or                   Commission’s part in comment and                       This proposed amendment responds to
                                                  more prior convictions for illegal                      suggestions regarding alternative policy               recently enacted legislation and
                                                  reentry offenses; (iii) provide a new                   choices; for example, a proposed                       miscellaneous guideline issues.


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                                                                                 Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Notices                                             2297

                                                  A. USA FREEDOM Act of 2015                                 Part A of the proposed amendment                    so the new offenses at 18 U.S.C. 2281a
                                                     Part A of the proposed amendment                     addresses these new offenses at section                are referenced to §§ 2A1.1, 2A1.2,
                                                  responds to the Uniting and                             2280a by referencing them in Appendix                  2A1.3, 2A1.4, 2A2.1, 2A2.2, 2A2.3,
                                                  Strengthening America by Fulfilling                     A (Statutory Index) to the following                   2A6.1, 2B1.1, 2B3.2, 2K1.4, 2M6.1,
                                                  Rights and Ensuring Effective Discipline                Chapter Two guidelines: §§ 2A1.1 (First                2Q1.1, 2Q1.2, and 2X1.1.
                                                  Over Monitoring Act (USA FREEDOM                        Degree Murder); 2A1.2 (Second Degree                      In addition, the USA FREEDOM Act
                                                  Act) of 2015, Pub. L. 114–23 (June 2,                   Murder); 2A1.3 (Voluntary                              created a new criminal offense at 18
                                                  2015), which, among other things, set                   Manslaughter); 2A1.4 (Involuntary                      U.S.C. 2332i that prohibits (i) the
                                                  forth changes to statutes related to                    Manslaughter); 2A2.1 (Assault with                     possession or production of radioactive
                                                  maritime navigation and provided new                    Intent to Commit Murder; Attempted                     material or a device with the intent to
                                                                                                          Murder); 2A2.2 (Aggravated Assault),                   cause death or serious bodily injury or
                                                  and expanded criminal offenses to
                                                                                                          2A2.3 (Assault); 2A6.1 (Threatening or                 to cause substantial damage to property
                                                  implement certain provisions in
                                                                                                          Harassing Communications); 2B1.1                       or the environment; and (ii) the use of
                                                  international conventions relating to
                                                                                                          (Fraud); 2B3.2 (Extortion); 2K1.3                      a radioactive material or a device, or the
                                                  maritime and nuclear terrorism. The Act
                                                                                                          (Unlawful Receipt, Possession, or                      use, damage, or interference with the
                                                  also added these new offenses to the list
                                                                                                          Transportation of Explosive Materials;                 operation of a nuclear facility that
                                                  of offenses specifically enumerated at 18
                                                                                                          Prohibited Transactions Involving                      causes the release of radioactive
                                                  U.S.C. 2332b(g)(5) as federal crimes of
                                                                                                          Explosive Materials); 2K1.4 (Arson);                   material, radioactive contamination, or
                                                  terrorism.
                                                                                                          2M5.2 (Exportation of Arms, Munitions,                 exposure to radiation with the intent (or
                                                     The USA FREEDOM Act created a
                                                                                                          or Military Equipment or Services                      knowledge that such act is likely) to
                                                  new criminal offense at 18 U.S.C. 2280a
                                                                                                          Without Required Validated Export                      cause death or serious bodily injury or
                                                  (Violence against maritime navigation
                                                                                                          License); 2M5.3 (Providing Material                    substantial damage to property or the
                                                  and maritime transport involving
                                                                                                          Support or Resources to Designated                     environment, or with the intent to
                                                  weapons of mass destruction) to
                                                                                                          Foreign Terrorist Organizations or                     compel a person, international
                                                  prohibit certain terrorism acts and
                                                                                                          Specially Designated Global Terrorists,                organization or country to do or refrain
                                                  threats against maritime navigation
                                                                                                          or For a Terrorist Purpose); 2M6.1                     from doing an act. Section 2332i also
                                                  committed in a manner that causes or is
                                                                                                          (Nuclear, Biological, and Chemical                     prohibits threats to commit any such
                                                  likely to cause death, serious injury, or
                                                                                                          Weapons, and Other Weapons of Mass                     acts. The penalties for violations of
                                                  damage, when the purpose of the
                                                                                                          Destruction); 2Q1.1 (Knowing                           section 2332i are a fine for not more
                                                  conduct is to intimidate a population or
                                                                                                          Endangerment Resulting From                            than $2,000,000 and imprisonment for
                                                  to compel a government or international
                                                                                                          Mishandling Hazardous or Toxic                         any term of years or life.
                                                  organization to do or abstain from doing                                                                          Part A of the proposed amendment
                                                                                                          Substances, Pesticides or Other
                                                  any act. The prohibited acts include (i)                                                                       amends Appendix A (Statutory Index)
                                                                                                          Pollutants); 2Q1.2 (Mishandling of
                                                  the use against or on a ship, or discharge                                                                     to reference the new offenses at 18
                                                                                                          Hazardous or Toxic Substances or
                                                  from a ship, of any explosive or                                                                               U.S.C. 2332i to §§ 2A6.1, 2K1.4, 2M2.1
                                                                                                          Pesticides); 2X1.1 (Conspiracy); 2X2.1
                                                  radioactive material, biological,                       (Aiding and Abetting); and 2X3.1                       (Destruction of, or Production of
                                                  chemical, or nuclear weapon or other                    (Accessory After the Fact).                            Defective, War Material, Premises, or
                                                  nuclear explosive device; (ii) the                         The USA FREEDOM Act also created                    Utilities), 2M2.3 (Destruction of, or
                                                  discharge from a ship of oil, liquefied                 a new criminal offense at 18 U.S.C.                    Production of Defective, National
                                                  natural gas, or other hazardous or                      § 2281a (Additional offenses against                   Defense Material, Premises, or Utilities),
                                                  noxious substance; (iii) any use of a ship              maritime fixed platforms) to prohibit                  and 2M6.1.
                                                  that causes death or serious injury or                  certain maritime terrorism acts that                      Finally, Part A makes clerical changes
                                                  damage; and (iv) the transportation                     occur either on a fixed platform or to a               to Application Note 1 to § 2M6.1
                                                  aboard a ship of any explosive or                       fixed platform committed in a manner                   (Nuclear, Biological, and Chemical
                                                  radioactive material. Section 2280a also                that may cause death, serious injury, or               Weapons, and Other Weapons of Mass
                                                  prohibits the transportation on board a                 damage, when the purpose of the                        Destruction) to reflect the redesignation
                                                  ship of any biological, chemical or                     conduct is to intimidate a population or               of a section in the United States Code
                                                  nuclear weapon or other nuclear                         to compel a government or international                by the USA FREEDOM Act.
                                                  explosive device, and any components,                   organization to do or abstain from doing                  Part A of the proposed amendment
                                                  delivery means, or materials for a                      any act. Section 2281a prohibits specific              also sets forth two issues for comment.
                                                  nuclear weapon or other nuclear                         conduct, including (i) the use against or
                                                  explosive device, under specified                                                                              B. Bipartisan Budget Act of 2015
                                                                                                          discharge from a fixed platform, of any
                                                  circumstances, but this conduct does                    explosive or radioactive material, or                     Part B of the proposed amendment
                                                  not contain a mens rea requirement.                     biological, chemical, or nuclear weapon                responds to the Bipartisan Budget Act of
                                                  Further, section 2280a prohibits the                    and (ii) the discharge from a fixed                    2015, Pub. L. 114–74 (Nov. 2, 2015),
                                                  transportation onboard a ship of a                      platform of oil, liquefied natural gas, or             which, among other things, amended
                                                  person who committed an offense under                   another hazardous or noxious                           three existing criminal statutes
                                                  section 2280 or 2280a, with the intent                  substance. The penalties for violations                concerned with fraudulent claims under
                                                  of assisting that person evade criminal                 of section 2281a are a fine,                           certain Social Security programs.
                                                  prosecution. The penalties for violations               imprisonment for no more than 20                          The three criminal statutes amended
                                                  of section 2280a are a fine,                            years, or both, or, if the death of a                  by the Bipartisan Budget Act of 2015 are
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                                                  imprisonment for no more than 20                        person results, imprisonment for any                   sections 208 (Penalties [for fraud
                                                  years, or both, or, if the death of a                   term of years or life. Section 2281a also              involving the Federal Old-Age and
                                                  person results, imprisonment for any                    prohibits threats to commit the offenses               Survivors Insurance Trust Fund]), 811
                                                  term of years or life. Section 2280a also               related to acts on or against fixed                    (Penalties for fraud [involving special
                                                  prohibits threats to commit the offenses                platforms and provides a penalty of                    benefits for certain World War II
                                                  not related to transportation on board a                imprisonment of up to five years.                      veterans]), and 1632 (Penalties for fraud
                                                  ship and provides a penalty of                             Part A of the proposed amendment                    [involving supplemental security
                                                  imprisonment of up to five years.                       amends Appendix A (Statutory Index)                    income for the aged, blind, and


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                                                  2298                           Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Notices

                                                  disabled]) of the Social Security Act (42                 Part C of the proposed amendment                     Proposed Amendment:
                                                  U.S.C. 408, 1011, and 1383a,                            also includes an issue for comment                     (A) USA FREEDOM Act of 2015
                                                  respectively). The three amended                        regarding section 1715 offenses and
                                                  statutes are currently referenced in                    whether other changes to the guidelines                   The Commentary to § 2M6.1
                                                  Appendix A (Statutory Index) of the                     are appropriate to address these                       captioned ‘‘Application Notes’’ is
                                                  Guidelines Manual to § 2B1.1 (Theft,                                                                           amended in Note 1 by striking
                                                                                                          offenses.
                                                  Property Destruction, and Fraud). The                                                                          ‘‘831(f)(2)’’ and inserting ‘‘831(g)(2)’’,
                                                  Act added new subdivisions                              D. Technical Amendment to § 2T1.6                      and by striking ‘‘831(f)(1)’’ and inserting
                                                  criminalizing conspiracy to commit                                                                             ‘‘831(g)(1)’’.
                                                                                                             The Internal Revenue Code (Title 26,                   Appendix A (Statutory Index) is
                                                  fraud for selected offense conduct
                                                                                                          United States Code) requires employers                 amended by inserting after the line
                                                  already in the three statutes. For each of
                                                  the three statutes, the new subdivision                 to withhold from their employees’                      referenced to 18 U.S.C. § 2280 the
                                                  provides that whoever ‘‘conspires to                    paychecks money representing the                       following:
                                                  commit any offense described in any of                  employees’ personal income and Social                     ‘‘18 U.S.C. § 2280a 2A1.1, 2A1.2,
                                                  [the] paragraphs’’ enumerated shall be                  Security taxes. The Code directs the                   2A1.3, 2A1.4, 2A2.1, 2A2.2, 2A2.3,
                                                  imprisoned for not more than five years,                employer to collect taxes as wages are                 2A6.1, 2B1.1, 2B3.2, 2K1.3, 2K1.4,
                                                  the same statutory maximum penalty                      paid, but only requires a periodic                     2M5.2, 2M5.3, 2M6.1, 2Q1.1, 2Q1.2,
                                                  applicable to the substantive offense.                  payment of such taxes to the IRS. If an                2X1.1, 2X2.1, 2X3.1’’;
                                                                                                          employer willfully fails to collect,                      by inserting after the line referenced
                                                     Part B amends Appendix A (Statutory
                                                                                                          truthfully account for, or pay over such               to 18 U.S.C. § 2281 the following:
                                                  Index) so that sections 408, 1011, and
                                                                                                          taxes, 26 U.S.C. 7202 provides both civil                 ‘‘18 U.S.C. 2281a 2A1.1, 2A1.2, 2A1.3,
                                                  1383a of Title 42 are referenced not only
                                                                                                          and criminal remedies. Section 7202                    2A1.4, 2A2.1, 2A2.2, 2A2.3, 2A6.1,
                                                  to § 2B1.1 but also to § 2X1.1 (Attempt,
                                                                                                                                                                 2B1.1, 2B3.2, 2K1.4, 2M6.1, 2Q1.1,
                                                  Solicitation, or Conspiracy (Not Covered                provides as criminal penalty a term of
                                                                                                                                                                 2Q1.2, 2X1.1’’;
                                                  by a Specific Office Guideline)).                       imprisonment with a statutory                             and by inserting after the line
                                                     Part B of the proposed amendment                     maximum of five years.                                 referenced to 18 U.S.C. 2332h the
                                                  also includes issues for comment.                          Section 7202 is referenced in                       following:
                                                  C. 18 U.S.C. 1715 (Firearms as                          Appendix A (Statutory Index) to § 2T1.6                   ‘‘18 U.S.C. 2332i 2A6.1, 2K1.4, 2M2.1,
                                                  Nonmailable Items)                                      (Failing to Collect or Truthfully Account              2M2.3, 2M6.1’’.
                                                                                                          for and Pay Over Tax). The Background                  Issues for Comment:
                                                     Section 1715 of title 18, United States
                                                                                                          commentary to § 2T1.6 states that ‘‘[t]he
                                                  Code (Firearms as nonmailable items),                                                                             1. The USA FREEDOM Act was
                                                                                                          offense is a felony that is infrequently
                                                  makes it unlawful to deposit for mailing                                                                       enacted as a reauthorization of the USA
                                                  or delivery by the mails pistols,                       prosecuted.’’ The Department of Justice
                                                                                                          in its annual letter to the Commission                 PATRIOT Act, Pub. L. 107–56 (October
                                                  revolvers, and other firearms capable of                                                                       26, 2001), relating to the collection of
                                                  being concealed on the person and                       has proposed that the ‘‘infrequently
                                                                                                                                                                 telephone metadata by various national
                                                  declared nonmailable (as prescribed by                  prosecuted’’ statement should be
                                                                                                                                                                 security agencies. Title VII of the Act
                                                  Postal Service regulations). For any                    deleted. The Department points out that
                                                                                                                                                                 also amended four existing criminal
                                                  violation of section 1715, the statutory                while that statement may have been                     statutes and created three new criminal
                                                  maximum term of imprisonment is two                     accurate when the relevant commentary                  statutes to implement certain provisions
                                                  years. The current Guidelines Manual                    was originally written (in 1987), the                  in international conventions relating to
                                                  does not provide a guideline reference                  number of prosecutions under section                   maritime and nuclear terrorism. One of
                                                  in Appendix A for offenses under                        7202 have since increased substantially.               the existing criminal statutes amended
                                                  section 1715.                                           The use of § 2T1.6 increased from three                by the USA FREEDOM Act was 18
                                                     The Department of Justice in its                     cases in 2002 to 46 cases in 2014. See                 U.S.C. 2280. Although the Act did not
                                                  annual letter to the Commission has                     United States Sentencing Commission,                   amend the substantive offense conduct
                                                  proposed that section 1715 offenses                     Use of Guidelines and Specific Offense                 in section 2280, it added 19 new
                                                  should be assigned a guideline                          Characteristics: Guideline Calculation                 definitions and terms to the statute and
                                                  reference, base offense level, and                      Based (Fiscal Year 2002), at http://                   made them applicable to other criminal
                                                  appropriate specific offense                            www.ussc.gov/research-and-                             statutes, including the new offenses
                                                  characteristics. The Department                         publications/federal-sentencing-                       created by the Act.
                                                  indicates that in recent years the United               statistics/guideline-application-                         The Commission seeks comment on
                                                  States Attorney’s Office for the Virgin                 frequencies/guideline-application-                     whether the guidelines should be
                                                  Islands has brought several cases                       frequencies-2002; United States                        amended to address the changes made
                                                  charging section 1715, where firearms                   Sentencing Commission, Use of                          by the USA FREEDOM Act. Are the
                                                  were illegally brought onto the islands                 Guidelines and Specific Offense                        existing provisions in the guidelines
                                                  by simply mailing them from mainland                    Characteristics: Guideline Calculation                 adequate to address the changes to
                                                  United States.                                                                                                 existing criminal statutes and the new
                                                                                                          Based (Fiscal Year 2014), at http://
                                                     Part C of the proposed amendment                     www.ussc.gov/sites/default/files/pdf/                  offenses created by the Act? If not, how
                                                  amends Appendix A (Statutory Index)                                                                            should the Commission amend the
                                                                                                          research-and-publications/federal-
                                                  to reference offenses under section 1715                                                                       guidelines to address them?
                                                                                                          sentencing-statistics/guideline-
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                                                  to § 2K2.1 (Unlawful Receipt,                                                                                     2. The proposed amendment would
                                                                                                          application-frequencies/2014/Use_of_
                                                  Possession, or Transportation of                                                                               reference the offenses under 18 U.S.C.
                                                                                                          SOC_Guideline_Based.pdf.                               2280a, 18 U.S.C. 2281a, and 18 U.S.C.
                                                  Firearms or Ammunition; Prohibited
                                                  Transactions Involving Firearms or                         Part D of the proposed amendment                    2332i to various guidelines. The
                                                  Ammunition). It also adds 18 U.S.C.                     amends the Background Commentary to                    Commission invites comment on
                                                  1715 to subsection (a)(8) of § 2K2.1,                   § 2T6.1 to delete the sentence that states             offenses under these new statutes,
                                                  establishing a base offense level of 6 for              ‘‘The offense is a felony that is                      including in particular the conduct
                                                  such offenses.                                          infrequently prosecuted.’’                             involved in such offenses and the nature


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                                                                                 Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Notices                                              2299

                                                  and seriousness of the harms posed by                   medical or other evidence in connection                2. Compassionate Release
                                                  such offenses. Do the guidelines covered                with any such determination . . . .                       Synopsis of Proposed Amendment: In
                                                  by the proposed amendment adequately                      In light of this new provision, a                    August 2015, the Commission indicated
                                                  account for these offenses? If not, what                person who meets this criteria and is                  that one of its policy priorities would be
                                                  revisions to the guidelines would be                    convicted of a fraud offense under one                 ‘‘possible consideration of amending the
                                                  appropriate to account for these                        of the three amended statutes may be                   policy statement pertaining to
                                                  offenses? In particular, should the                     imprisoned for not more than ten years,                ‘compassionate release,’ § 1B1.13
                                                  Commission provide one or more new                      double the otherwise applicable five-                  (Reduction in Term of Imprisonment as
                                                  alternative base offense levels, specific               year penalty for other offenders. The                  a Result of Motion by Director of Bureau
                                                  offense characteristics, or departure                   new increased penalties apply to all of                of Prisons).’’ See United States
                                                  provisions in one or more of these                      the fraudulent conduct in subsection (a)               Sentencing Commission, ‘‘Notice of
                                                  guidelines to better account for these                  of the three statutes.                                 Final Priorities,’’ 80 FR 48957 (Aug. 14,
                                                  offenses? If so, what should the                                                                               2015). The Commission is publishing
                                                  Commission provide?                                       The Commission seeks comment on
                                                                                                          whether the guidelines should be                       this proposed amendment to inform the
                                                     In addition, the Commission seeks                                                                           Commission’s consideration of the
                                                  comment on whether the Commission                       amended to address cases involving
                                                                                                                                                                 issues related to this policy priority.
                                                  should reference these new offenses to                  defendants convicted of a fraud offense
                                                                                                                                                                    The proposed amendment contains
                                                  other guidelines instead of, or in                      under one of the three amended statutes
                                                                                                                                                                 two parts. Part A sets forth a detailed
                                                  addition to, the guidelines covered by                  and who meet this new criteria set forth
                                                                                                                                                                 request for comment on whether any
                                                  the proposed amendment. Alternatively,                  by the Bipartisan Budget Act of 2015.
                                                                                                                                                                 changes should be made to the
                                                  should the Commission defer action in                   Are the existing provisions in the
                                                                                                                                                                 Commission’s policy statement at
                                                  response to these new offenses this                     guidelines, such as the provisions at
                                                                                                                                                                 § 1B1.13 (Reduction in Term of
                                                  amendment cycle, undertake a broader                    § 2B1.1 and the Chapter Three
                                                                                                                                                                 Imprisonment as a Result of Motion by
                                                  review of the guidelines pertaining to                  adjustment at § 3B1.3 (Abuse of Position
                                                                                                                                                                 Director of Bureau of Prisons). Part B
                                                  offenses involving terrorism and                        of Trust or Use of Special Skill),
                                                                                                                                                                 illustrates one possible set of changes to
                                                  weapons of mass destruction, and                        adequate to address these cases? If not,
                                                                                                                                                                 the policy statement at § 1B1.13.
                                                  include responding to the new offenses                  how should the Commission amend the
                                                  as part of that broader review?                         guidelines to address them?                            (A) Request for Public Comment on
                                                                                                                                                                 Whether Any Changes Should Be Made
                                                  (B) Bipartisan Budget Act of 2015                       (C) 18 U.S.C. 1715 (Firearms as Non-                   to the Commission’s Policy Statement at
                                                    Appendix A (Statutory Index) is                       mailable Items)                                        § 1B1.13 (Reduction in Term of
                                                  amended in each of the lines referenced                    Section 2K2.1 is amended in                         Imprisonment as a Result of Motion by
                                                  to 42 U.S.C. 408, 1011, and 1383a(a) by                 subsection (a)(8) by inserting ‘‘, or                  Director of Bureau of Prisons)
                                                  inserting ‘‘, 2X1.1’’ at the end.                       § 1715’’ before the period at the end.                 Issue for Comment:
                                                  Issues for Comment:                                        The Commentary to § 2K2.1 captioned                   1. Statutory Provisions Related to
                                                     1. Part B of the proposed amendment                  ‘‘Statutory Provisions’’ is amended by                 Compassionate Release. Section
                                                  would reference the new conspiracy                      inserting after ‘‘(k)–(o),’’ the following:            3582(c)(1)(A) of title 18, United States
                                                  offenses under 42 U.S.C. 408, 1011, and                 ‘‘1715,’’.                                             Code, authorizes a federal court, upon
                                                  1383a to § 2X1.1 (Attempt, Solicitation,                   Appendix A (Statutory Index) is                     motion of the Director of the Bureau of
                                                  or Conspiracy (Not Covered by a                         amended by inserting after the line                    Prisons, to reduce the term of
                                                  Specific Office Guideline)). The                        referenced to 18 U.S.C. 1712 the                       imprisonment of a defendant in certain
                                                  Commission invites comment on                           following:                                             circumstances, i.e., if ‘‘extraordinary
                                                  whether the guidelines covered by the                                                                          and compelling reasons’’ warrant such a
                                                                                                             ‘‘18 U.S.C. 1715 2K2.1’’.
                                                  proposed amendment adequately                                                                                  reduction or the defendant is at least 70
                                                  account for these offenses. If not, what                Issue for Comment:                                     years of age and meets certain other
                                                  revisions to the guidelines would be                                                                           criteria. Such a reduction must be
                                                  appropriate to account for these                          1. Part C of the proposed amendment                  consistent with applicable policy
                                                  offenses?                                               would reference offenses under 18                      statements issued by the Sentencing
                                                     2. In addition to the amendments to                  U.S.C. 1715 to § 2K2.1. The Commission                 Commission. See 18 U.S.C. 3582(c)(1);
                                                  the criminal statutes described above,                  invites comment on offenses under                      see also 28 U.S.C. 994(t) (stating that the
                                                  the Bipartisan Budget Act of 2015 also                  section 1715, including in particular the              Commission, in promulgating any such
                                                  amended sections 408, 1011, and 1383a                   conduct involved in such offenses and                  policy statements, ‘‘shall describe what
                                                  of Title 42 to add increased penalties for              the nature and seriousness of the harms                should be considered extraordinary and
                                                  certain persons who commit fraud                        posed by such offenses. What guideline                 compelling reasons for sentence
                                                  offenses under the relevant social                      or guidelines are appropriate for these                reduction, including the criteria to be
                                                  security programs. The Act included a                   offenses? Does § 2K2.1 adequately                      applied and a list of specific
                                                  provision in all three statutes                         account for these offenses? To the extent              examples’’).
                                                  identifying such persons as:                            the Commission does provide a                            Policy Statement at § 1B1.13. The
                                                     a person who receives a fee or other                 reference to one or more guidelines,                   Commission’s policy statement,
                                                  income for services performed in                        what revisions, if any, to those                       § 1B1.13 (Reduction in Term of
                                                                                                          guidelines would be appropriate to
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                                                  connection with any determination with                                                                         Imprisonment as a Result of Motion by
                                                  respect to benefits under this title                    account for offenses under section 1715?               Director of Bureau of Prisons), provides
                                                  (including a claimant representative,                   (D) Technical Amendment to § 2T1.6                     that ‘‘extraordinary and compelling
                                                  translator, or current or former                                                                               reasons’’ exist if (1) the defendant is
                                                  employee of the Social Security                            The Commentary to § 2T1.6 captioned                 suffering from a terminal illness; (2) the
                                                  Administration), or who is a physician                  ‘‘Background’’ is amended by striking                  defendant is suffering from certain
                                                  or other health care provider who                       ‘‘The offense is a felony that is                      permanent physical or medical
                                                  submits, or causes the submission of,                   infrequently prosecuted.’’.                            conditions, or experiencing


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                                                  2300                           Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Notices

                                                  deteriorating physical or mental health                 In addition, the report found that the                    Finally, the Commission adopted the
                                                  because of the aging process; or (3) the                eligibility requirements for both medical              policy statement at § 1B1.13 to
                                                  defendant has a minor child and the                     and non-medical provisions as applied                  implement the directive in 28 U.S.C.
                                                  defendant’s only family member capable                  to inmates 65 years or older are                       994(t). As noted above, the directive
                                                  of caring for the child has died or is                  ‘‘unclear’’ and ‘‘confusing.’’                         requires the Commission to ‘‘describe
                                                  incapacitated. See § 1B1.13, comment.                      In light of its review, the OIG                     what should be considered
                                                  (n.1(A)(i)–(iii)). In addition, the policy              recommended that the Bureau of                         extraordinary and compelling reasons
                                                  statement provides that extraordinary                   Prisons should consider revising its                   for sentence reduction, including the
                                                  and compelling reasons exist if, as                     compassionate release program to                       criteria to be applied and a list of
                                                  determined by the Director of the                       facilitate the release of appropriate                  specific examples.’’ The Commission
                                                  Bureau of Prisons, there exists in the                  elderly inmates. The report provided the               also has authority to promulgate general
                                                  defendant’s case an extraordinary and                   following specific recommendations,                    policy statements regarding application
                                                  compelling reason other than, or in                     among others: (1) Revising the inmate                  of the guidelines or other aspects of
                                                  combination with, the reasons described                 age provisions to define an aging inmate               sentencing that in the view of the
                                                  above. See § 1B1.13, comment.                           as age 50 or above; and (2) revising the               Commission would further the purposes
                                                  (n.1(A)(iv)). The policy statement was                  time-served provision for those inmates                of sentencing (18 U.S.C. 3553(a)(2)),
                                                  last amended in 2007 to provide the                     65 and older without medical                           including, among other things, the
                                                  current criteria to be applied and a list               conditions to remove the requirement                   appropriate use of the sentence
                                                  of the specific circumstances which                     that they serve 10 years, and require                  modification provisions set forth in 18
                                                  constitute ‘‘extraordinary and                          only that they serve 75 percent of their               U.S.C. 3582(c). See 28 U.S.C.
                                                  compelling reasons’’ for compassionate                  sentence. In April 2015, the Bureau of                 994(a)(2)(C). Under this general
                                                  release consideration.                                  Prisons responded to a draft of the OIG                authority, should the Commission
                                                     Bureau of Prisons Program Statement                  report and concurred with each of the                  further develop the policy statement at
                                                  on Compassionate Release. On August                     recommendations made by the OIG.                       § 1B1.13 to provide additional guidance
                                                  12, 2013, the Bureau of Prisons issued                     Issue for Comment. The Commission                   or limitations regarding the
                                                  a new program statement, 5050.49, that                  seeks comment whether any changes                      circumstance in which sentences may
                                                  changes how the Bureau implements                       should be made to the Commission’s                     be reduced as a result of a motion by the
                                                  section 3582(c)(1)(A). Among other                      policy statement at § 1B1.13 (Reduction                Director of the Bureau of Prisons? If so,
                                                  things, the new program statement                       in Term of Imprisonment as a Result of                 what should the specific guidance or
                                                  expands and details the range of                        Motion by Director of Bureau of                        limitations be? For example, should the
                                                  circumstances that the Bureau may                       Prisons). Should the Commission                        Commission provide that the Director of
                                                  consider ‘‘extraordinary and compelling                 amend the current policy statement                     the Bureau of Prisons should not
                                                  reasons’’ warranting such a reduction.                  describing what constitutes                            withhold a motion under 18 U.S.C.
                                                  Under the program statement, a                          ‘‘extraordinary and compelling reasons’’               3582(c)(1)(A) if the defendant meets any
                                                  sentence reduction may be based on the                  and, if so, how?                                       of the circumstances listed as
                                                  defendant’s medical circumstances (e.g.,                   Should the list of extraordinary and                ‘‘extraordinary and compelling reasons’’
                                                  a terminal or debilitating medical                      compelling reasons in the Guidelines                   in § 1B1.13?
                                                  condition; see 5050.49(3)(a)–(b)) or on                 Manual closely track the criteria set
                                                  certain non-medical circumstances (e.g.,                forth by the Bureau of Prisons in its                  (B) Proposed Amendment
                                                  an elderly defendant, the death or                      program statement? Should the                             Synopsis of Proposed Amendment:
                                                  incapacitation of the family member                     Commission develop further criteria and                This part of the proposed amendment
                                                  caregiver, or the incapacitation of the                 examples of what circumstances                         illustrates one possible set of changes to
                                                  defendant’s spouse or registered partner;               constitute ‘‘extraordinary and                         the Commission’s policy statement at
                                                  see 5050.49(4),(5),(6)).                                compelling reasons’’? If so, what                      § 1B1.13. The proposed amendment
                                                     Report of the Department of Justice’s                specific criteria and examples should                  would revise the list of ‘‘extraordinary
                                                  Office of the Inspector General. In May                 the Commission provide? Should the                     and compelling reasons’’ for
                                                  2015, the Department of Justice’s Office                Commission further define and expand                   compassionate release consideration in
                                                  of the Inspector General (OIG) released                 the medical and non-medical criteria                   the Commentary to § 1B1.13 to reflect
                                                  a report on the Bureau of Prisons’                      provided in the Bureau’s program                       the criteria set forth in the Bureau of
                                                  implementation of the compassionate                     statement?                                             Prisons’ program statement. The
                                                  release program provisions related to                      In addition, the Commission seeks                   language used in this part parallels the
                                                  elderly inmates. See U.S. Department of                 comment on how, if at all, the policy                  language in the Bureau’s program
                                                  Justice, Office of the Inspector General,               statement at § 1B1.13 should be revised                statement.
                                                  The Impact of the Aging Inmate                          to address the recommendations in the
                                                  Population on the Federal Bureau of                     OIG report. Should the Commission                      Proposed Amendment:
                                                  Prisons, E–15–05 (May 2015), available                  adopt the recommendations in the OIG                      The Commentary to § 1B1.13
                                                  at https://oig.justice.gov/reports/2015/                report as part of its revision of the                  captioned ‘‘Application Notes’’ is
                                                  e1505.pdf. The report found that while                  policy statement at § 1B1.13? Should the               amended in Note 1(A) by striking
                                                  aging inmates (age 50 years or older)                   Commission expand upon these                           ‘‘following circumstances’’ and inserting
                                                  make up a disproportionate share of the                 recommendations to revise the Bureau’s                 ‘‘circumstances set forth below’’; by
                                                  inmate population, are more costly to                   requirements that limit the availability               redesignating clause (iv) as clause (viii);
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                                                  incarcerate (primarily due to medical                   of compassionate release for aging                     by striking clauses (i) through (iii) and
                                                  needs), engage in less misconduct while                 inmates? Alternatively, should the                     inserting the following:
                                                  in prison, and have a lower rate of re-                 Commission defer action on this issue                     ‘‘(i) The defendant (I) has been
                                                  arrest once released than their younger                 during this amendment cycle to                         diagnosed with a terminal, incurable
                                                  counterparts, ‘‘BOP policies limit the                  consider any possible changes that the                 disease; and (II) has a life expectancy of
                                                  number of aging inmates who can be                      Bureau of Prisons might promulgate to                  18 months or less.
                                                  considered for early release and, as a                  its compassionate release program                         (ii) The defendant has an incurable,
                                                  result, few are actually released early.’’              statement in response to the OIG report?               progressive illness.


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                                                                                 Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Notices                                              2301

                                                     (iii) The defendant has suffered a                   3. Conditions of Probation and                         release, the court is required to impose
                                                  debilitating injury from which he or she                Supervised Release                                     certain conditions of supervised release
                                                  will not recover.                                          Synopsis of Proposed Amendment:                     listed by statute, and the court has
                                                     (iv) The defendant meets the                         This proposed amendment revises,                       discretion to impose additional
                                                  following criteria—                                     clarifies, and rearranges the conditions               conditions of supervised release, to the
                                                     (I) the defendant is at least 65 years               of probation and supervised release. It is             extent that the additional condition ‘‘is
                                                  old;                                                    a result of the Commission’s multi-year                reasonably related to the factors set forth
                                                     (II) the defendant has served at least               review of federal sentencing practices                 in section 3553(a)(1), (a)(2)(B), (a)(2)(C),
                                                  50 percent of his or her sentence;                      relating to conditions of probation and                and (a)(2)(D)’’ and ‘‘involves no greater
                                                     (III) the defendant suffers from a                                                                          deprivation of liberty than is reasonably
                                                                                                          supervised release. See United States
                                                  chronic or serious medical condition                                                                           necessary for the purposes set forth in
                                                                                                          Sentencing Commission, ‘‘Notice of
                                                  related to the aging process;                                                                                  section 3553(a)(2)(B), (a)(2)(C), and
                                                                                                          Final Priorities,’’ 80 FR 48957 (Aug. 14,
                                                     (IV) the defendant is experiencing                                                                          (a)(2)(D).’’ See 18 U.S.C. 3583(d). The
                                                                                                          2015). It is also informed by a series of
                                                  deteriorating mental or physical health                                                                        additional condition of supervised
                                                                                                          opinions issued by the Seventh Circuit
                                                  that substantially diminishes his or her                                                                       release must also be consistent with any
                                                                                                          in recent years.
                                                  ability to function in a correctional                                                                          pertinent policy statements issued by
                                                                                                             Specifically, the Seventh Circuit has
                                                  facility; and                                                                                                  the Sentencing Commission. See 18
                                                                                                          found several of the standard conditions
                                                     (V) conventional treatment promises                                                                         U.S.C. 3583(d)(3).
                                                                                                          to be unduly vague, overbroad, or                         In addition, the court is required to
                                                  no substantial improvement to the                       inappropriately applied. See, e.g.,
                                                  defendant’s mental health or physical                                                                          direct that the probation officer provide
                                                                                                          United States v. Adkins, 743 F.3d 176                  the defendant with a written statement
                                                  condition.                                              (7th Cir. 2014); United States v.
                                                     (v) The defendant (I) is at least 65                                                                        that sets forth all the conditions to
                                                                                                          Goodwin, 717 F.3d 511 (7th Cir. 2013);                 which he or she is subject, which must
                                                  years old; and (II) has served at least 10              United States v. Quinn, 698 F.3d 651                   be ‘‘sufficiently clear and specific to
                                                  years or 75 percent of his or her                       (7th Cir. 2012); United States v. Siegel,              serve as a guide for the defendant’s
                                                  sentence, whichever is greater.                         753 F.3d 705 (7th Cir. 2014). The                      conduct and for such supervision as is
                                                     (vi) The death or incapacitation of the              Seventh Circuit has also suggested that                required.’’ See 18 U.S.C. 3563(d),
                                                  family member caregiver of the                          the language of the conditions be                      3583(f). The Judgment in a Criminal
                                                  defendant’s child.                                      revised to be more comprehensible to                   Case Form, AO 245B, sets forth a series
                                                     [‘‘Incapacitation’’ means the family                 defendants and probation officers, and                 of mandatory and ‘‘standard’’ conditions
                                                  member caregiver suffered a severe                      to contain a stated mens rea requirement               in standardized form and provides
                                                  injury or suffers from a severe illness                 where one was lacking. United States v.                space for the court to impose additional
                                                  that renders the caregiver incapable of                 Kappes, 782 F.3d 828, 848 (7th Cir.                    ‘‘standard’’ and ‘‘special’’ conditions
                                                  caring for the child. ‘‘Child’’ means an                2015) (‘‘We have suggested that                        devised by the court.
                                                  individual who had not attained the age                 sentencing judges define the crucial                      The Commission is directed by its
                                                  of 18 years.]                                           terms in a condition in a way that                     organic statute to promulgate policy
                                                     (vii) The incapacitation of the                      provides clear notice to the defendant                 statements on the appropriate use of the
                                                  defendant’s spouse or registered partner                (preferably through objective rather than              conditions of probation and supervised
                                                  when the defendant would be the only                    subjective terms), and/or includes a                   release. See 28 U.S.C. 994(a)(2)(B).
                                                  available caregiver for the spouse or                   mens rea requirement (such as                          Sections 5B1.3 (Conditions of Probation)
                                                  registered partner.                                     intentional conduct). We have further                  and 5D1.3 (Conditions of Supervised
                                                     [‘‘Incapacitation’’ means the spouse or              suggested that the judge make sure that                Release) implement this directive.
                                                  registered partner (I) has suffered a                   each condition imposed is simply                       Subsections (a) and (b) of § 5B1.3 set
                                                  serious injury or suffers from a                        worded, bearing in mind that, with rare                forth the conditions of probation that
                                                  debilitating physical illness and the                   exceptions, neither the defendant nor                  are required by statute. Subsections (c),
                                                  result of the injury or illness is that the             the probation officer is a lawyer and that             (d), and (e) of § 5B1.3 provide guidance
                                                  spouse or registered partner is                         when released from prison the                          on discretionary conditions of
                                                  completely disabled, meaning that the                   defendant will not have a lawyer to                    probation, which are categorized as
                                                  spouse or registered partner cannot                     consult.’’ (quotation and alteration                   ‘‘standard’’ conditions, ‘‘special’’
                                                  carry on any self-care and is totally                   marks omitted)).                                       conditions, and ‘‘additional’’ special
                                                  confined to a bed or chair; or (II) has a                                                                      conditions, respectively. Subsections (a)
                                                  severe cognitive deficit, caused by an                  The Statutory and Guidelines
                                                                                                          Framework                                              through (e) of § 5D1.3 follow the same
                                                  illness or injury, that has severely                                                                           structure in setting forth the mandatory
                                                  affected the spouse’s or registered                        When imposing a sentence of                         conditions of supervised release and
                                                  partner’s mental capacity or function                   probation, the court is required to                    providing guidance on discretionary
                                                  but may not be confined to a bed or                     impose certain conditions of probation                 conditions of supervised release.
                                                  chair. ‘‘Spouse’’ means an individual in                listed by statute. See 18 U.S.C. 3563(a).
                                                  a relationship with the defendant,                      In addition, the court has discretion to               The Proposed Changes to §§ 5B1.3 and
                                                  where that relationship has been legally                impose additional conditions of                        5D1.3
                                                  recognized as a marriage, including a                   probation ‘‘to the extent that such                      The changes made by the proposed
                                                  legally-recognized common-law                           conditions are reasonably related to the               amendment would revise, clarify, and
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                                                  marriage. ‘‘Registered partner’’ means an               factors set forth in sections 3553(a)(1)               rearrange the provisions in the
                                                  individual in relationship with the                     and (a)(2) and to the extent that such                 Guidelines Manual on conditions of
                                                  defendant, where the relationship has                   conditions involve only such                           probation and supervised release. These
                                                  been legally recognized as a civil union                deprivations of liberty or property as are             changes would not necessarily affect the
                                                  or registered domestic partnership.]’’;                 reasonably necessary for the purposes                  conditions of probation and supervised
                                                     and in clause (viii), as so                          indicated in section 3553(a)(2).’’ See 18              release as set forth in the Judgment in
                                                  redesignated, by striking ‘‘(i), (ii), and              U.S.C. 3563(b). Similarly, when                        a Criminal Case Form, AO 245B.
                                                  (iii)’’ and inserting ‘‘(i) through (vii)’’.            imposing a sentence of supervised                      However, in light of the responsibilities


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                                                  2302                           Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Notices

                                                  of the Judicial Conference of the United                that the defendant must not use or                     10 calendar days before the change. If
                                                  States and the Administrative Office of                 possess alcohol. The second new                        notifying the probation officer in
                                                  the United States Courts in this area, the              provision, based on paragraph (4) of the               advance is not possible due to
                                                  Commission works with the Criminal                      ‘‘standard’’ conditions, would specify                 unanticipated circumstances, the
                                                  Law Committee and the Probation and                     that, if the defendant has one or more                 defendant must notify the probation
                                                  Pretrial Services Office on these issues                dependents, the defendant must support                 officer within 72 hours of becoming
                                                  and anticipates that the Commission’s                   his or her dependents; and if the                      aware of a change or expected change.
                                                  work on this proposed amendment may                     defendant is ordered by the government                    (6) The defendant must allow the
                                                  inform their consideration of possible                  to make child support payments or to                   probation officer to visit the defendant
                                                  changes to the judgment form.                           make payments to support a person                      at his or her home or elsewhere, and the
                                                     In general, the changes are intended                 caring for a child, the defendant must                 defendant must permit the probation
                                                  to make the conditions more focused                     make the payments and comply with                      officer to take any items prohibited by
                                                  and precise as well as easier for                       the other terms of the order.                          the conditions of the defendant’s
                                                  defendants to understand and probation                     Issues for comment are also included.               supervision that he or she observes in
                                                  officers to enforce. For some conditions                                                                       plain view.
                                                  that do not have a mens rea standard,                   Proposed Amendment:                                       (7) The defendant must work full time
                                                  a ‘‘knowing’’ standard is inserted.                       Section 5B1.3 is amended in                          (at least 30 hours per week) at a lawful
                                                     First, the proposed amendment                        subsection (a)(6) by inserting before the              type of employment, unless the
                                                  amends the ‘‘mandatory’’ conditions set                 semicolon at the end the following: ‘‘. If             probation officer excuses the defendant
                                                  forth in subsection (a) of §§ 5B1.3 and                 there is a court-established payment                   from doing so. If the defendant does not
                                                  5D1.3. It inserts new language directing                schedule for making restitution or                     have full-time employment he or she
                                                  that, if there is a court-established                   paying the assessment (see 18 U.S.C.                   must try to find full-time employment,
                                                  payment schedule for making restitution                 3572(d)), the defendant shall adhere to                unless the probation officer excuses the
                                                  or paying a special assessment, the                     the schedule’’;                                        defendant from doing so. If the
                                                  defendant shall adhere to the schedule.                   in subsection (b) by striking ‘‘The’’                defendant plans to change where the
                                                  See 18 U.S.C. 3572(d). This new                         and inserting the following:                           defendant works or anything about his
                                                  language is similar to paragraph (14) of                                                                       or her work (such as the position or the
                                                  the ‘‘standard’’ conditions; accordingly,               ‘‘Discretionary Conditions                             job responsibilities), the defendant must
                                                  paragraph (14) of the ‘‘standard’’                        The’’;                                               notify the probation officer at least 10
                                                  conditions is deleted, as described                       in subsection (c) by striking ‘‘(Policy              calendar days before the change. If
                                                  below.                                                  Statement) The’’ and inserting the                     notifying the probation officer in
                                                     Second, the proposed amendment                       following:                                             advance is not possible due to
                                                  amends the ‘‘standard’’ conditions set                                                                         unanticipated circumstances, the
                                                  forth in subsection (c) of §§ 5B1.3 and                 ‘‘ ‘Standard’ Conditions (Policy
                                                                                                                                                                 defendant must notify the probation
                                                  5D1.3. Paragraphs (1)–(3), (5)–(6), and                 Statement)
                                                                                                                                                                 officer within 72 hours of becoming
                                                  (9)–(13) are revised, clarified, and                       The’’;                                              aware of a change or expected change.
                                                  rearranged into a new set of paragraphs                    and by striking paragraphs (1) through                 (8) The defendant must not
                                                  (1) through (12). A new paragraph (13)                  (14) and inserting the following:                      communicate or interact with someone
                                                  is added, which provides that the                          ‘‘(1) The defendant must report to the              the defendant knows is engaged in
                                                  defendant ‘‘must follow the instructions                probation office in the federal judicial               criminal activity. If the defendant
                                                  of the probation officer related to the                 district where he or she is authorized to              knows someone has been convicted of a
                                                  conditions of supervision.’’                            reside within 72 hours of the time the                 felony, the defendant must not
                                                     Several provisions are moved from                    defendant was sentenced, unless the                    knowingly communicate or interact
                                                  the ‘‘standard’’ conditions list to the                 probation officer tells the defendant to               with that person without first getting the
                                                  ‘‘special’’ conditions list, or vice versa.             report to a different probation office or              permission of the probation officer.
                                                  Specifically, paragraph (1) of the                      within a different time frame.                            (9) If the defendant is arrested or has
                                                  ‘‘special’’ conditions list (relating to                   (2) After initially reporting to the                any official contact with a law
                                                  possession of a firearm or dangerous                    probation office, the defendant will                   enforcement officer, the defendant must
                                                  weapon) is moved to the ‘‘standard’’                    receive instructions from the court or                 notify the probation officer within 72
                                                  conditions list. Paragraphs (4) and (7) of              the probation officer about how and                    hours.
                                                  the ‘‘standard’’ conditions list (relating              when to report to the probation officer,                  (10) The defendant must not own,
                                                  to support of dependents and child                      and the defendant must report to the                   possess, or have access to a firearm,
                                                  support, and alcohol use, respectively)                 probation officer as instructed.                       ammunition, destructive device, or
                                                  are moved to the ‘‘special’’ conditions                    (3) The defendant must not knowingly                dangerous weapon (i.e., anything that
                                                  list. In addition, as mentioned above,                  leave the federal judicial district where              was designed, or was modified for, the
                                                  paragraph (14) on the ‘‘standard’’                      he or she is authorized to reside without              specific purpose of causing bodily
                                                  conditions list (relating to payment of                 first getting permission from the court or             injury or death to another person, such
                                                  special assessment) is incorporated into                the probation officer.                                 as nunchakus or tasers).
                                                  the ‘‘mandatory’’ conditions list.                         (4) The defendant must [answer                         (11) The defendant must not act or
                                                  Finally, paragraph (8) of the ‘‘standard’’              truthfully][be truthful when responding                make any agreement with a law
                                                  conditions list (relating to frequenting                to] the questions asked by the probation               enforcement agency to act as a
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                                                  places where controlled substances are                  officer.                                               confidential human source or informant
                                                  trafficked) is deleted.                                    (5) The defendant must live at a place              without first getting the permission of
                                                     Third, the proposed amendment adds                   approved by the probation officer. If the              the court.
                                                  two new provisions to the ‘‘special’’                   defendant plans to change where he or                     (12) If the probation officer
                                                  conditions set forth in subsection (d) of               she lives or anything about his or her                 determines that the defendant poses a
                                                  §§ 5B1.3 and 5D1.3. The first new                       living arrangements (such as the people                risk to another person (including an
                                                  provision, based on paragraph (7) of the                the defendant lives with), the defendant               organization), the probation officer may
                                                  ‘‘standard’’ conditions, would specify                  must notify the probation officer at least             require the defendant to tell the person


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                                                                                 Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Notices                                             2303

                                                  about the risk and the defendant must                   the probation officer about how and                    notify the probation officer within 72
                                                  comply with that instruction. The                       when to report to the probation officer,               hours.
                                                  probation officer may contact the person                and the defendant must report to the                      (10) The defendant must not own,
                                                  and confirm that the defendant has told                 probation officer as instructed.                       possess, or have access to a firearm,
                                                  the person about the risk.                                 (3) The defendant must not knowingly                ammunition, destructive device, or
                                                     (13) The defendant must follow the                   leave the federal judicial district where              dangerous weapon (i.e., anything that
                                                  instructions of the probation officer                   he or she is authorized to reside without              was designed, or was modified for, the
                                                  related to the conditions of                            first getting permission from the court or             specific purpose of causing bodily
                                                  supervision.’’;                                         the probation officer.                                 injury or death to another person, such
                                                     and in subsection (d) by striking                       (4) The defendant must [answer                      as nunchakus or tasers).
                                                  ‘‘(Policy Statement) The’’ and inserting                truthfully][be truthful when responding                   (11) The defendant must not act or
                                                  the following:                                          to] the questions asked by the probation               make any agreement with a law
                                                     ‘‘ ‘Special’ Conditions (Policy                      officer.                                               enforcement agency to act as a
                                                  Statement)                                                 (5) The defendant must live at a place              confidential human source or informant
                                                     The’’;                                               approved by the probation officer. If the              without first getting the permission of
                                                     by striking paragraph (1) and inserting              defendant plans to change where he or                  the court.
                                                  the following:                                          she lives or anything about his or her                    (12) If the probation officer
                                                                                                          living arrangements (such as the people                determines that the defendant poses a
                                                  ‘‘(1) Support of Dependents
                                                                                                          the defendant lives with), the defendant               risk to another person (including an
                                                     If the defendant—                                    must notify the probation officer at least             organization), the probation officer may
                                                     (A) has one or more dependents—a                                                                            require the defendant to tell the person
                                                                                                          10 calendar days before the change. If
                                                  condition specifying that the defendant                                                                        about the risk and the defendant must
                                                                                                          notifying the probation officer in
                                                  must support his or her dependents; and                                                                        comply with that instruction. The
                                                                                                          advance is not possible due to
                                                     (B) is ordered by the government to                                                                         probation officer may contact the person
                                                                                                          unanticipated circumstances, the
                                                  make child support payments or to                                                                              and confirm that the defendant has told
                                                                                                          defendant must notify the probation
                                                  make payments to support a person                                                                              the person about the risk.
                                                                                                          officer within 72 hours of becoming
                                                  caring for a child—a condition                                                                                    (13) The defendant must follow the
                                                                                                          aware of a change or expected change.
                                                  specifying that the defendant must make                                                                        instructions of the probation officer
                                                                                                             (6) The defendant must allow the
                                                  the payments and comply with the other                                                                         related to the conditions of supervision.
                                                                                                          probation officer to visit the defendant
                                                  terms of the order.’’;                                                                                            (14) The defendant shall notify the
                                                                                                          at his or her home or elsewhere, and the
                                                     and in paragraph (4) by striking                                                                            probation officer of any material change
                                                                                                          defendant must permit the probation
                                                  ‘‘Program Participation’’ in the heading;                                                                      in the defendant’s economic
                                                                                                          officer to take any items prohibited by
                                                  by inserting ‘‘(A)’’ before ‘‘a condition                                                                      circumstances that might affect the
                                                                                                          the conditions of the defendant’s
                                                  requiring’’; and by inserting ‘‘; and (B)                                                                      defendant’s ability to pay any unpaid
                                                                                                          supervision that he or she observes in
                                                  a condition specifying that the                                                                                amount of restitution, fines, or special
                                                                                                          plain view.
                                                  defendant must not use or possess                                                                              assessments.’’;
                                                  alcohol’’ before the period at the end.                    (7) The defendant must work full time
                                                                                                                                                                    and in subsection (d) by striking
                                                     Section 5D1.3 is amended in                          (at least 30 hours per week) at a lawful
                                                                                                                                                                 ‘‘(Policy Statement) The’’ and inserting
                                                  subsection (a)(6) by inserting before the               type of employment, unless the
                                                                                                                                                                 the following:
                                                  semicolon at the end the following: ‘‘. If              probation officer excuses the defendant                   ‘‘ ‘Special’ Conditions (Policy
                                                  there is a court-established payment                    from doing so. If the defendant does not               Statement)
                                                  schedule for making restitution or                      have full-time employment he or she                       The’’;
                                                  paying the assessment (see 18 U.S.C.                    must try to find full-time employment,                    by striking paragraph (1) and inserting
                                                  3572(d)), the defendant shall adhere to                 unless the probation officer excuses the               the following:
                                                  the schedule’’;                                         defendant from doing so. If the
                                                                                                          defendant plans to change where the                    ‘‘(1) Support of Dependents
                                                     in subsection (b) by striking ‘‘The’’
                                                  and inserting the following:                            defendant works or anything about his                     If the defendant—
                                                                                                          or her work (such as the position or the                  (A) has one or more dependents—a
                                                  ‘‘Discretionary Conditions                              job responsibilities), the defendant must              condition specifying that the defendant
                                                    The’’;                                                notify the probation officer at least 10               must support his or her dependents; and
                                                    in subsection (c) by striking ‘‘(Policy               calendar days before the change. If                       (B) is ordered by the government to
                                                  Statement) The’’ and inserting the                      notifying the probation officer in                     make child support payments or to
                                                  following:                                              advance is not possible due to                         make payments to support a person
                                                    ‘‘ ‘Standard’ Conditions (Policy                      unanticipated circumstances, the                       caring for a child — a condition
                                                  Statement)                                              defendant must notify the probation                    specifying that the defendant must make
                                                    The’’;                                                officer within 72 hours of becoming                    the payments and comply with the other
                                                    and by striking paragraphs (1) through                aware of a change or expected change.                  terms of the order.’’;
                                                  (15) and inserting the following:                          (8) The defendant must not                          and in paragraph (4) by striking
                                                    ‘‘(1) The defendant must report to the                communicate or interact with someone                   ‘‘Program Participation’’ in the heading;
                                                  probation office in the federal judicial                the defendant knows is engaged in                      by inserting ‘‘(A)’’ before ‘‘a condition
                                                  district where he or she is authorized to               criminal activity. If the defendant                    requiring’’; and by inserting ‘‘; and (B)
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                                                  reside within 72 hours of release from                  knows someone has been convicted of a                  a condition specifying that the
                                                  imprisonment, unless the probation                      felony, the defendant must not                         defendant must not use or possess
                                                  officer tells the defendant to report to a              knowingly communicate or interact                      alcohol’’ before the period at the end.
                                                  different probation office or within a                  with that person without first getting the
                                                  different time frame.                                   permission of the probation officer.                   Issues for Comment:
                                                    (2) After initially reporting to the                     (9) If the defendant is arrested or has               1. The Commission seeks comment on
                                                  probation office, the defendant will                    any official contact with a law                        the bracketed options in paragraph (3) of
                                                  receive instructions from the court or                  enforcement officer, the defendant must                the ‘‘special’’ conditions, which would


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                                                  2304                           Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Notices

                                                  become (4) under the proposed                           fighting venture or promoting or in any                [8][10] in § 2E3.1 would apply if the
                                                  amendment. Specifically, the proposed                   other manner furthering an animal                      defendant was convicted under section
                                                  amendment brackets whether the                          fighting venture, see § 2156(c); and                   2156(a)(2)(B) (causing an individual
                                                  defendant should ‘‘answer truthfully’’                     • sell, buy, transport, or deliver a                under 16 to attend an animal fighting
                                                  the questions of the probation officer or,              sharp instrument designed to be                        venture). The class A misdemeanor at
                                                  instead, should ‘‘be truthful when                      attached to the leg of a bird for use in               section 2156(a)(2)(A) (attending an
                                                  responding to’’ the questions of the                    an animal fighting venture, see                        animal fighting venture) would not be
                                                  probation officer. The Commission                       § 2156(e).                                             referenced in Appendix A (Statutory
                                                  seeks comment on the policy                                The criminal penalties for violations               Index) to § 2E3.1; it would receive a
                                                  implications and the Fifth Amendment                    of section 2156 are provided in 18                     base offense level of 6 in § 2X5.2 (Class
                                                  implications of each of these bracketed                 U.S.C. 49. For any violation of section                A Misdemeanors (Not Covered by
                                                  options. Which option, if any, is                       2156 listed above, the statutory                       Another Specific Offense Guideline)).
                                                  appropriate? Should the Commission                      maximum term of imprisonment is 5                        Issues for comment are also included.
                                                  clarify that an offender’s legitimate                   years. See 18 U.S.C. 49(a).
                                                  invocation of the Fifth Amendment                          However, two new types of animal                    Proposed Amendment:
                                                  privilege against self-incrimination in                 fighting offenses were added by the                       Section 2E3.1 is amended in
                                                  response to a probation officer’s                       Agricultural Act of 2014. They make it                 subsection (a) by striking subsection
                                                  question shall not be considered a                      unlawful to knowingly—                                 (a)(2); by redesignating subsections
                                                  violation of this special condition?                       • attend an animal fighting venture,                (a)(1) and (a)(3) as subsections (a)(2) and
                                                    2. The Commission seeks comment on                    see § 2156(a)(2)(A); or                                (a)(4), respectively; by striking ‘‘or’’ in
                                                  the standard condition of supervised                       • cause an individual under 16 to                   subsection (a)(2), as so redesignated; by
                                                  release in § 5D1.3(c)(15), which states                 attend an animal fighting venture, see                 inserting before subsection (a)(2) (as so
                                                  that the defendant ‘‘shall notify the                   § 2156(a)(2)(B).                                       redesignated) the following new
                                                  probation officer of any material change                   The statutory maximum is 3 years if                 subsection (a)(1):
                                                  in the defendant’s economic                             the offense of conviction is causing an                   ‘‘(1) [14][16], if the offense involved
                                                  circumstances that might affect the                     individual under 16 to attend an animal                an animal fighting venture, except as
                                                  defendant’s ability to pay any unpaid                   fighting venture, see 18 U.S.C. 49(c),                 provided in subdivision (3) below;’’;
                                                  amount of restitution, fines, or special                and 1 year if the offense of conviction                   and by inserting before subsection
                                                  assessments.’’ Under the proposed                       is attending an animal fighting venture,               (a)(4), as so redesignated, the following
                                                  amendment, this would remain a                          see 18 U.S.C. 49(b).                                   new subsection (b)(3):
                                                  standard condition and would be                            All offenses under section 2156 are                    ‘‘(3) [8][10], if the defendant was
                                                  redesignated as subsection (c)(14). The                 referenced in Appendix A (Statutory                    convicted under 7 U.S.C. 2156(a)(2)(B);
                                                  Commission seeks comment on whether                     Index) to § 2E3.1 (Gambling Offenses;                  or’’.
                                                  this condition should be made a special                 Animal Fighting Offenses). Under the                      The Commentary to § 2E3.1 captioned
                                                  condition rather than a standard                        penalty structure of that guideline, a                 ‘‘Statutory Provisions’’ is amended by
                                                  condition.                                              defendant convicted of an animal                       inserting after ‘‘7 U.S.C. 2156’’ the
                                                                                                          fighting offense receives a base offense               following: ‘‘(felony provisions only)’’.
                                                  4. Animal Fighting                                      level of 12 if the offense involved                       The Commentary to § 2E3.1 captioned
                                                     Synopsis of Proposed Amendment:                      gambling—specifically, if the offense                  ‘‘Application Notes’’ is amended in
                                                  This proposed amendment revises                         was engaging in a gambling business,                   Note 2 by striking ‘‘If the offense
                                                  § 2E3.1 (Gambling; Animal Fighting                      transmitting wagering information, or                  involved extraordinary cruelty to an
                                                  Offenses) to provide higher penalties for               part of a commercial gambling                          animal that resulted in, for example,
                                                  animal fighting offenses and to respond                 operation—and a base offense level of                  maiming or death to an animal, an
                                                  to two new offenses, relating to                        10 otherwise. The guideline contains no                upward departure may be warranted.’’,
                                                  attending an animal fighting venture,                   specific offense characteristics. There is             and inserting ‘‘There may be cases in
                                                  established by section 12308 of the                     an upward departure provision if an                    which the offense level determined
                                                  Agricultural Act of 2014, Public Law                    animal fighting offense involves                       under this guideline substantially
                                                  113–79 (Feb. 7, 2014).                                  exceptional cruelty.                                   understates the seriousness of the
                                                     Animal fighting ventures are                                                                                offense. In such cases, an upward
                                                  prohibited by the Animal Welfare Act,                   Higher Penalties for Animal Fighting                   departure may be warranted. For
                                                  7 U.S.C. 2156. Under that statute, an                   Offenses                                               example, an upward departure may be
                                                  ‘‘animal fighting venture’’ is an event                   First, the proposed amendment                        warranted if (A) the offense involved
                                                  that involves a fight between at least                  revises § 2E3.1 to provide a base offense              extraordinary cruelty to an animal; or
                                                  two animals for purposes of sport,                      level of [14][16] if the offense involved              (B) the offense involved animal fighting
                                                  wagering, or entertainment. See 7 U.S.C.                an animal fighting venture.                            on an exceptional scale (such as an
                                                  2156(g)(1). Section 2156 prohibits a                      In addition, it revises the existing                 offense involving an unusually large
                                                  range of conduct relating to animal                     upward departure provision to cover not                number of animals).’’.
                                                  fighting ventures, including making it                  only offenses involving exceptional                       Appendix A (Statutory Index) is
                                                  unlawful to knowingly—                                  cruelty but also offenses involving                    amended in the line referenced to 7
                                                     • sponsor or exhibit an animal in an                 animal fighting on an exceptional scale.               U.S.C. 2156 by inserting after ‘‘§ 2156’’
                                                  animal fighting venture, see § 2156(a)(1);                                                                     the following: ‘‘(felony provisions
                                                     • sell, buy, possess, train, transport,              New Offenses Relating to Attending an
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                                                                                                                                                                 only)’’.
                                                  deliver, or receive an animal for                       Animal Fighting Venture
                                                  purposes of having the animal                              Next, the proposed amendment                        Issues for Comment:
                                                  participate in an animal fighting                       responds to the two new offenses                         1. The Commission seeks comment on
                                                  venture, see § 2156(b);                                 relating to attendance at an animal                    offenses involving animal fighting. How
                                                     • advertise an animal (or a sharp                    fighting venture. It establishes new base              prevalent are these offenses, and do the
                                                  instrument designed to be attached to                   offense levels for such offenses.                      guidelines adequately address these
                                                  the leg of a bird) for use in an animal                 Specifically, a base offense level of                  offenses? If not, how should the


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                                                                                 Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Notices                                              2305

                                                  Commission revise the guidelines to                     are unusually young and vulnerable.                    account’’ and that, ‘‘[t]hough the
                                                  provide appropriate penalties in such                   The other two issues typically arise                   characteristics of being an infant or
                                                  cases?                                                  when the offense involves a peer-to-peer               toddler tend to correlate with age, they
                                                     What, if any, aggravating and                        file-sharing program or network. These                 can exist independently of age, and are
                                                  mitigating factors are involved in these                issues were noted by the Commission in                 not the same thing as merely not having
                                                  offenses that the guidelines should take                its 2012 report to Congress on child                   ‘attained the age of twelve years.’ ’’
                                                  into account? Should the Commission                     pornography offenses. See United States                United States v. Wright, 373 F.3d 935,
                                                  provide new departure provisions,                       Sentencing Commission, ‘‘Report to the                 943 (9th Cir. 2004). Accordingly, it held,
                                                  enhancements, adjustments, or                           Congress: Federal Child Pornography                    a vulnerable victim adjustment may be
                                                  minimum offense levels to account for                   Offenses’’ at 33–35 (2012), available at               applied based on extreme youth and
                                                  such aggravating or mitigating factors? If              http://www.ussc.gov/news/                              small physical size, such as when the
                                                  so, what should the Commission                          congressional-testimony-and-reports/                   victim is in the infant or toddler stage.
                                                  provide, and with what penalty levels?                  sex-offense-topics/report-congress-                    Id. Similarly, the Fifth Circuit has
                                                     For example, should the Commission                   federal-child-pornography-offenses.                    stated, ‘‘we do not see any logical reason
                                                  provide an enhancement if the                                                                                  why a ‘victim under the age of twelve’
                                                  defendant possessed a dangerous                         Offenses Involving Unusually Young
                                                                                                                                                                 enhancement should bar application of
                                                  weapon (including a firearm)? Should                    and Vulnerable Minors
                                                                                                                                                                 the ‘vulnerable victim’ enhancement
                                                  the Commission provide an                                  First, the proposed amendment                       when the victim is especially
                                                  enhancement if the defendant was in                     responds to differences among the                      vulnerable, even as compared to most
                                                  the business of breeding, selling,                      circuits in cases in which the offense                 children under twelve.’’ United States v.
                                                  buying, possessing, training,                           involves minors who are unusually                      Jenkins, 712 F.3d 209, 214 (5th Cir.
                                                  transporting, delivering, or receiving                  young and vulnerable (such as infants or               2013).
                                                  animals for use in animal fighting                      toddlers). The production guideline                       The Fourth Circuit, in contrast, has
                                                  ventures, or brokering such activities?                 provides a 4-level enhancement if the                  indicated that the vulnerable victim
                                                     2. The proposed amendment includes                   offense involved a minor who had not                   adjustment may not be applied based
                                                  an upward departure provision if the                    attained the age of 12 years and a 2-level             solely on extreme youth or on factors
                                                  offense involved animal fighting ‘‘on an                enhancement if the minor had not                       that are for conditions that ‘‘necessarily
                                                  exceptional scale (such as an offense                   attained the age of 16 years. See                      are related to . . . age.’’ United States v.
                                                  involving an unusually large number of                  § 2G2.1(b)(1). A similar tiered                        Dowell, 771 F.3d 162, 175 (4th Cir.
                                                  animals).’’ What additional guidance, if                enhancement is contained in § 2G2.6                    2014). The line drawn by the under-12
                                                  any, should the Commission provide on                   (Child Exploitation Enterprises). See                  enhancement ‘‘implicitly preclude[s]
                                                  what constitutes animal fighting on an                  § 2G2.6(b)(1). The non-production                      courts from drawing additional lines
                                                  exceptional scale?                                      guideline provides a 2-level                           below that point,’’ and ‘‘once the offense
                                                     Under the proposed amendment, the                    enhancement if the material involved a                 involves a child under twelve, any
                                                  factors of exceptional cruelty and                      prepubescent minor or a minor who had                  additional considerations based solely
                                                  exceptional scale are departure                         not attained the age of 12 years. See                  on age simply are not appropriate to the
                                                  provisions. Should the Commission                       § 2G2.2(b)(2).                                         Guidelines calculation.’’ Id.
                                                  provide enhancements, rather than                          These three guidelines do not provide                  The proposed amendment generally
                                                  departure provisions, for these factors?                a further enhancement for cases in                     adopts the approach of the Fifth and
                                                  If so, what penalty levels should be                    which the victim was unusually young                   Ninth Circuits. It amends the
                                                  provided?                                               and vulnerable. However, the                           Commentary in the child pornography
                                                     3. The Commission seeks comment on                   adjustment at § 3A1.1(b)(1) provides a 2-              guidelines to provide that application of
                                                  how the multiple count rules should                     level increase if the defendant knew or                the age enhancement does not preclude
                                                  operate when the defendant is convicted                 should have known that the victim was                  application of the vulnerable victim
                                                  of multiple counts of animal fighting                   a ‘‘vulnerable victim,’’ i.e., a victim                adjustment. Specifically, if the minor’s
                                                  offenses. How, if at all, should the                    ‘‘who is unusually vulnerable due to                   extreme youth and small physical size
                                                  guideline calculation be affected by the                age, physical or mental condition, or                  made the minor especially vulnerable
                                                  presence of multiple counts of                          who is otherwise particularly                          compared to most minors under the age
                                                  conviction? For example, should the                     susceptible to the criminal conduct.’’                 of 12 years, § 3A1.1(b) applies, assuming
                                                  Commission specify that multiple                        See § 3A1.1, comment. (n.2). The                       the mens rea requirement of § 3A1.1(b)
                                                  counts involving animal fighting                        Commentary further provides:                           is also met (i.e., the defendant knew or
                                                  ventures are to be grouped together                        Do not apply subsection (b) if the                  should have known of this
                                                  under subsection (d) of § 3D1.2 (Groups                 factor that makes the person a                         vulnerability).
                                                  of Closely Related Counts)? Should the                  vulnerable victim is incorporated in the
                                                  Commission specify that multiple                        offense guideline. For example, if the                 Two Issues Relating to the Tiered
                                                  counts involving animal fighting                        offense guideline provides an                          Enhancement for Distribution in § 2G2.2
                                                  ventures are not to be grouped together?                enhancement for the age of the victim,                   Second, the proposed amendment
                                                                                                          this subsection would not be applied                   responds to differences among the
                                                  5. Child Pornography Circuit Conflicts                                                                         circuits in applying the tiered
                                                                                                          unless the victim was unusually
                                                     Synopsis of Proposed Amendment:                      vulnerable for reasons unrelated to age.               enhancement for distribution in
                                                  This proposed amendment addresses                          See § 3A1.1, comment. (n.2).                        § 2G2.2(b)(3), which provides an
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                                                  circuit conflicts and application issues                   There are differences among the                     enhancement ranging from 2 levels to 7
                                                  that have arisen when applying the                      circuits over whether the vulnerable                   levels depending on specific factors.
                                                  guidelines to child pornography                         victim adjustment applies when the                       There are two related issues that
                                                  offenses. One of the issues typically                   victim is extremely young, such as an                  typically arise in child pornography
                                                  arises under both the child pornography                 infant or toddler. The Ninth Circuit has               cases when the offense involves a peer-
                                                  production guideline and the child                      indicated that the under-12                            to-peer file-sharing program or network.
                                                  pornography distribution guideline                      enhancement ‘‘does not take especially                 The first issue is when a participant’s
                                                  when the offense involves victims who                   vulnerable stages of childhood into                    use of a peer-to-peer file sharing


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                                                  2306                           Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Notices

                                                  program or network warrants at                            As a conforming change, the proposed                 inserting after Note 1 the following new
                                                  minimum a 2-level enhancement under                     amendment also revises the 2-level                     Note 2:
                                                  subsection (b)(3)(F). The second issue is               distribution enhancement at                               ‘‘2. Interaction of Age Enhancement
                                                  when, if at all, the use of a peer-to-peer              § 2G2.1(b)(3) to provide that the                      (Subsection (b)(1)) and Vulnerable
                                                  file sharing program or network                         enhancement requires that the                          Victim (§ 3A1.1(b)).—If subsection (b)(1)
                                                  warrants a 5-level enhancement under                    defendant knowingly distributed.                       applies, § 3A1.1(b) ordinarily would not
                                                  (b)(3)(B) instead.                                                                                             apply unless the minor was unusually
                                                                                                          (2) The 5-Level Distribution                           vulnerable for reasons unrelated to age.
                                                  (1) The 2-Level Distribution                            Enhancement at Subsection (b)(3)(B)                    See § 3A1.1, comment. (n.2). However,
                                                  Enhancement at Subsection (b)(3)(F)                                                                            if the minor’s extreme youth and small
                                                                                                             The 5-level distribution enhancement
                                                     The Fifth, Tenth, and Eleventh                       at subsection (b)(3)(B) applies if the                 physical size made the minor especially
                                                  Circuits have each held that the 2-level                offense involved distribution ‘‘for the                vulnerable compared to most minors
                                                  distribution enhancement applies if the                 receipt, or expectation of receipt, of a               under the age of 12 years, and the
                                                  defendant used a file sharing program,                  thing of value, but not for pecuniary                  defendant knew or should have known
                                                  regardless of whether he did so                         gain.’’ The Commentary provides, as                    this, apply § 3A1.1(b).’’.
                                                  purposefully, knowingly, or negligently.                one example, that in a case involving                     Section 2G2.2 is amended in
                                                  See, e.g., United States v. Baker, 742                  the bartering of child pornographic                    subsection (b)(3) by striking ‘‘If the
                                                  F.3d 618, 621 (5th Cir. 2014) (the                      material, the ‘‘thing of value’’ is the                offense involved’’;
                                                  enhancement applies ‘‘regardless of the                 material received in exchange.                            in subparagraphs (A), (C), (D), and (E)
                                                  defendant’s mental state’’); United                        The circuits have taken different                   by striking ‘‘Distribution’’ and inserting
                                                  States v. Ray, 704 F.3d 1307, 1312 (10th                approaches to this issue. The Fifth                    ‘‘If the offense involved distribution’’;
                                                  Cir. 2013) (the enhancement ‘‘does not                  Circuit has indicated that when the                       in subparagraph (B) by striking
                                                  require that a defendant know about the                 defendant knowingly uses file sharing                  ‘‘Distribution for the receipt, or
                                                  distribution capability of the program he               software, the requirements for the 5-                  expectation of receipt, of a thing of
                                                  is using’’; the enhancement ‘‘requires no               level enhancement are generally                        value,’’ and inserting ‘‘If the defendant
                                                  particular state of mind’’); United States              satisfied. See United States v. Groce,                 distributed in exchange for any valuable
                                                  v. Creel, 783 F.3d 1357, 1360 (11th Cir.                784 F.3d 291, 294 (5th Cir. 2015)                      consideration,’’;
                                                                                                                                                                    and in subparagraph (F) by striking
                                                  2015) (‘‘No element of mens rea is                      (‘‘Generally, when a defendant
                                                                                                                                                                 ‘‘Distribution’’ and inserting ‘‘If the
                                                  expressed or implied . . . The                          knowingly uses peer-to-peer file sharing
                                                                                                                                                                 defendant knowingly distributed,’’.
                                                  definition requires only that the ‘act                  software . . . he engages in the kind of                  The Commentary to § 2G2.2 captioned
                                                  . . . relates to the transfer of child                  distribution contemplated by’’ the 5-                  ‘‘Application Notes’’ is amended in
                                                  pornography.’ ’’).                                      level enhancement).                                    Note 1 by striking the paragraph that
                                                     The Second, Fourth, and Fifth                           The Fourth Circuit appears to have a                begins ‘‘ ‘Distribution for the receipt, or
                                                  Circuits, in contrast, have held that the               higher standard. It has required the                   expectation of receipt, of a thing of
                                                  2-level distribution enhancement                        government to show that the defendant                  value, but not for pecuniary gain’
                                                  requires a showing that the defendant                   (1) ‘‘knowingly made child pornography                 means’’ and inserting ‘‘ ‘The defendant
                                                  knew, or at least acted in reckless                     in his possession available to others by               distributed in exchange for any valuable
                                                  disregard of, the file sharing properties               some means’’; and (2) did so ‘‘for the                 consideration’ means the defendant
                                                  of the program. See, e.g., United States                specific purpose of obtaining something                agreed to an exchange with another
                                                  v. Baldwin, 743 F.3d 357, 361 (2nd Cir.                 of valuable consideration, such as more                person under which the defendant
                                                  2015) (requiring knowledge); United                     pornography.’’ United States v.                        knowingly distributed to that other
                                                  States v. Robinson, 714 F.3d 466, 468                   McManus, 734 F.3d 315, 319 (4th Cir.                   person for the specific purpose of
                                                  (7th Cir. 2013) (knowledge); United                     2013).                                                 obtaining something of valuable
                                                  States v. Layton, 564 F.3d 330, 335 (4th                   The proposed amendment revises                      consideration from that other person,
                                                  Cir. 2009) (knowledge or reckless                       subsection (b)(3)(B) to clarify that the               such as other child pornographic
                                                  disregard).                                             enhancement applies if the defendant                   material, preferential access to child
                                                     Other circuits appear to follow                      distributed in exchange for any valuable               pornographic material, or access to a
                                                  somewhat different approaches. The                      consideration. Specifically, this means                child.’’;
                                                  Eighth Circuit has stated that knowledge                that the defendant agreed to an                           and by redesignating Notes 2 through
                                                  is required, but knowledge may be                       exchange with another person under                     7 as Notes 3 through 8, respectively, and
                                                  inferred from the fact that a file sharing              which the defendant knowingly                          by inserting after Note 1 the following
                                                  program was used, absent ‘‘concrete                     distributed to that other person for the               new Note 2:
                                                  evidence’’ of ignorance. United States v.               specific purpose of obtaining something                   ‘‘2. Interaction of Age Enhancement
                                                  Dodd, 598 F.3d 449, 452 (8th Cir. 2010).                of valuable consideration from that                    (Subsection (b)(2)) and Vulnerable
                                                  The Sixth Circuit has stated in an                      other person, such as other child                      Victim (§ 3A1.1(b)).—If subsection (b)(2)
                                                  unpublished opinion that there is a                     pornographic material, preferential                    applies, § 3A1.1(b) ordinarily would not
                                                  ‘‘presumption’’ that ‘‘users of file-                   access to child pornographic material,                 apply unless the minor was unusually
                                                  sharing software understand others can                  or access to a child.                                  vulnerable for reasons unrelated to age.
                                                  access their files.’’ United States v.                                                                         See § 3A1.1, comment. (n.2). However,
                                                                                                          Proposed Amendment:
                                                  Conner, 521 Fed. App’x 493, 499 (6th                                                                           if the minor’s extreme youth and small
                                                  Cir. 2013).                                                Section 2G2.1 is amended in
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                                                                                                                                                                 physical size made the minor especially
                                                     The proposed amendment generally                     subsection (b)(3) by striking ‘‘offense                vulnerable compared to most minors
                                                  adopts the approach of the Second,                      involved distribution’’ and inserting                  under the age of 12 years, and the
                                                  Fourth, and Fifth Circuits. It amends                   ‘‘defendant knowingly distributed’’.                   defendant knew or should have known
                                                  subsection (b)(3)(F) to provide that the                   The Commentary to § 2G2.1 captioned                 this, apply § 3A1.1(b).’’.
                                                  2-level enhancement requires                            ‘‘Application Notes’’ is amended by                       The Commentary to § 2G2.6 captioned
                                                  ‘‘knowing’’ distribution by the                         redesignating Notes 2 through 6 as                     ‘‘Application Notes’’ is amended by
                                                  defendant.                                              Notes 3 through 7, respectively, and by                redesignating Notes 2 and 3 as Notes 3


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                                                                                 Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Notices                                             2307

                                                  and 4, respectively, and by inserting                   level enhancement, even in cases where                   Part B revises the illegal reentry
                                                  after Note 1 the following new Note 2:                  the defendant was in fact ignorant that                guideline at § 2L1.2 (Unlawfully
                                                     ‘‘2. Interaction of Age Enhancement                  use of the program would result in files               Entering or Remaining in the United
                                                  (Subsection (b)(1)) and Vulnerable                      being shared to others?                                States). Issues for comment are also
                                                  Victim (§ 3A1.1(b)).—If subsection (b)(1)                  3. With respect to the 5-level                      included.
                                                  applies, § 3A1.1(b) ordinarily would not                distribution enhancement, the proposed
                                                  apply unless the minor was unusually                    amendment would generally require an                   (A) Alien Smuggling
                                                  vulnerable for reasons unrelated to age.                agreement with another person in which                    Synopsis of Proposed Amendment:
                                                  See § 3A1.1, comment. (n.2). However,                   the defendant trades child pornography                 This part of the proposed amendment
                                                  if the minor’s extreme youth and small                  for other child pornography or another                 revises the alien smuggling guideline at
                                                  physical size made the minor especially                 thing of value, such as access to a child.             § 2L1.1 (Smuggling, Transporting, or
                                                  vulnerable compared to most minors                      The Commission seeks comment on                        Harboring an Unlawful Alien). The
                                                  under the age of 12 years, and the                      whether a different approach should be                 Commission has received comment
                                                  defendant knew or should have known                     used, particularly in cases involving a                expressing concern that the guideline
                                                  this, apply § 3A1.1(b).’’.                              file sharing program or network. For                   provides for inadequate sentences for
                                                                                                          example, should the Commission                         alien smugglers, particularly those who
                                                  Issues for Comment
                                                                                                          provide a bright-line rule that use of a               smuggle unaccompanied minors. See,
                                                     1. With respect to the interaction of                file sharing program qualifies for the 5-              e.g., Annual Letter from the Department
                                                  the age enhancements and the                            level enhancement?                                     of Justice to the Commission (July 24,
                                                  vulnerable victim adjustment, the                          4. The proposed amendment amends                    2015), at http://www.ussc.gov/sites/
                                                  proposed amendment would respond to                     § 2G2.2 to provide that the 2-level                    default/files/pdf/amendment-process/
                                                  the circuit conflict by clarifying the                  enhancement at subsection (b)(3)                       public-comment/20150727/DOJ.pdf.
                                                  circumstances under which the                           requires ‘‘knowing’’ distribution by the
                                                  vulnerable victim adjustment would                                                                                First, the proposed amendment
                                                                                                          defendant. Should the Commission
                                                  also apply. Should the Commission use                                                                          revises the alternative base offense
                                                                                                          change any other enhancements in
                                                  a different approach to resolving the                                                                          levels at § 2L1.1(a). Two options are
                                                                                                          subsection (b) from an ‘‘offense
                                                  circuit conflict? If so, what approach                                                                         provided. Option 1 would raise the base
                                                                                                          involved’’ approach to a ‘‘defendant-
                                                  should the Commission use to clarify                                                                           offense level at subsection (a)(3) from 12
                                                                                                          based’’ approach? If so, should the
                                                  how the age enhancements interact with                                                                         to [16]. Option 2 adds an alternative
                                                                                                          Commission include a culpable state of
                                                  the vulnerable victim adjustment? For                                                                          base offense level of [16] if the
                                                                                                          mind requirement, such as, for example,
                                                  example, should the Commission revise                                                                          defendant smuggled, transported, or
                                                                                                          requiring ‘‘knowing’’ distribution by the
                                                  the tiered age enhancements to provide                                                                         harbored an unlawful alien as part of an
                                                                                                          defendant?
                                                  an additional tier, 2 levels higher than                                                                       ongoing commercial organization.
                                                                                                             5. The guideline for obscenity
                                                  the existing tiers, for cases involving                 offenses, § 2G3.1 (Importing, Mailing, or                 Second, the proposed amendment
                                                  unusually young and vulnerable                          Transporting Obscene Matter;                           addresses offenses involving
                                                  victims, such as infants or toddlers? In                Transferring Obscene Matter to a Minor;                unaccompanied minors in alien
                                                  the alternative, should the Commission                  Misleading Domain Names), contains a                   smuggling offenses. The Department of
                                                  provide an upward departure provision                   tiered distribution enhancement similar                Justice in its annual letter to the
                                                  to address this factor?                                 to the tiered distribution enhancement                 Commission has suggested that the
                                                     Application Note 2 to § 3A1.1                        in § 2G2.2. If the Commission were to                  enhancement for smuggling,
                                                  provides that, ‘‘if the offense guideline               make revisions to the tiered distribution              transporting, or harboring
                                                  provides an enhancement for the age of                  enhancement in § 2G2.2, should the                     unaccompanied minors under
                                                  the victim, this subsection would not be                Commission make similar revisions to                   § 2L1.1(b)(4) is inadequate in light of the
                                                  applied unless the victim was unusually                 § 2G3.1?                                               serious nature of such offenses. The
                                                  vulnerable for reasons unrelated to age.’’                                                                     Department states that ‘‘[t]hese
                                                  Should the Commission revise this                       6. Immigration                                         smugglers often treat children as human
                                                  provision to change or clarify how age                     Synopsis of Proposed Amendment:                     cargo and subject them to a multitude of
                                                  enhancements in the guidelines                          This proposed amendment is a result of                 abuses throughout a long and dangerous
                                                  (whether for child pornography offenses                 the Commission’s multi-year study of                   journey, including sexual assault,
                                                  or otherwise) interact with the                         the guidelines applicable to immigration               extortion, and other crimes.’’ The
                                                  vulnerable victim adjustment? For                       offenses and related criminal history                  proposed amendment would amend
                                                  example, should the Commission                          rules. See United States Sentencing                    § 2L1.1 to address the issue of
                                                  change ‘‘unless the victim was                          Commission, ‘‘Notice of Final                          unaccompanied minors. The proposed
                                                  unusually vulnerable for reasons                        Priorities,’’ 80 FR 48957 (Aug. 14, 2015).             amendment first amends § 2L1.1(b)(4) to
                                                  unrelated to age’’ to ‘‘unless the victim               The Commission is publishing this                      make the enhancement offense-based
                                                  was unusually vulnerable for reasons                    proposed amendment to inform the                       (with a mens rea requirement) as
                                                  not based on age per se’’?                              Commission’s consideration of these                    opposed to exclusively defendant-based.
                                                     2. With respect to the 2-level                       issues.                                                The proposed amendment would also
                                                  distribution enhancement, the proposed                     The proposed amendment contains                     amend the commentary to § 2L1.1 to
                                                  amendment generally adopts the                          two parts. The Commission is                           clarify that the term ‘‘serious bodily
                                                  approach of the circuits that require                   considering whether to promulgate any                  injury’’ included in subsection (b)(7)(B)
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                                                  ‘‘knowing’’ distribution. The                           one or both of these parts, as they are                has the meaning given to that term in
                                                  Commission seeks comment on whether                     not necessarily mutually exclusive.                    the Commentary to § 1B1.1 (Application
                                                  a different approach should be used,                    They are as follows—                                   Instructions), which states that ‘‘serious
                                                  particularly in cases involving a file                     Part A revises the alien smuggling                  bodily injury’’ is deemed to have
                                                  sharing program or network. For                         guideline at § 2L1.1 (Smuggling,                       occurred if the offense involved conduct
                                                  example, should the Commission                          Transporting, or Harboring an Unlawful                 constituting criminal sexual abuse
                                                  provide a bright-line rule that use of a                Alien). An issue for comment is also                   under 18 U.S.C. 2241 or § 2242 or any
                                                  file sharing program qualifies for the 2-               provided.                                              similar offense under state law.


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                                                  2308                           Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Notices

                                                    Finally, the proposed amendment                       threatening bodily injury’ have the        sites/default/files/pdf/research-and-
                                                  would revise the definition of ‘‘minor’’                meaning given those terms in the           publications/research-projects-and-
                                                  for purposes of the ‘‘unaccompanied                     Commentary to § 1B1.1 (Application         surveys/immigration/2015_Illegal-
                                                  minor’’ enhancement at § 2L1.1(b)(4)                    Instructions).’’;                          Reentry-Report.pdf.
                                                  and change it from minors under the age                   by redesignating Notes 2 through 6 as       The key findings from the report
                                                  of 16 to minors under the age of [18].                  Notes 3 through 7, respectively, and by    include—
                                                  The proposed amendment also brackets                    inserting after Note 1 the following new      • the average sentence for illegal
                                                  the possibility of including a new                      Note 2:                                    reentry offenders was 18 months;
                                                  departure provision in the commentary                     ‘‘2. Application of Subsection (b)(7) to    • all but two of the 18,498 illegal
                                                  to § 2L1.1 for cases in which the offense               Conduct Constituting Criminal Sexual       reentry offenders—including the 40
                                                  involved the smuggling, transporting, or                Abuse.—Consistent with Application         percent with the most serious criminal
                                                  harboring of six or more unaccompanied                  Note 1(L) of § 1B1.1 (Application          histories triggering a statutory maximum
                                                  minors.                                                 Instructions), ‘serious bodily injury’ is  penalty of 20 years under 8 U.S.C.
                                                    An issue for comment is also                          deemed to have occurred if the offense     1326(b)(2)—were sentenced at or below
                                                  provided.                                               involved conduct constituting criminal     the ten-year statutory maximum under 8
                                                                                                          sexual abuse under 18 U.S.C. 2241 or       U.S.C. 1326(b)(1) for offenders with less
                                                  Proposed Amendment
                                                                                                          § 2242 or any similar offense under state  serious criminal histories (i.e., those
                                                     Section 2L1.1 is amended—                            law.’’;                                    without ‘‘aggravated felony’’
                                                     [Option 1:                                             and in Note 4, as so redesignated, by
                                                     in subsection (a)(3) by striking ‘‘12,                                                          convictions);
                                                                                                          inserting at the end the following new        • the rate of within-guideline range
                                                  otherwise’’ and inserting ‘‘[16],                       subdivision:
                                                  otherwise’’;]                                                                                      sentences was significantly lower
                                                                                                            ‘‘[(D) The offense involved the
                                                     [Option 2:                                                                                      among offenders who received 16-level
                                                                                                          smuggling, transporting, or harboring of
                                                     in subsection (a) by redesignating                                                              enhancements pursuant to
                                                                                                          six or more minors who were
                                                  paragraph (3) as paragraph (4), and by                                                             § 2L1.2(b)(1)(A) for predicate
                                                                                                          unaccompanied by their parents or
                                                  inserting after paragraph (2) the                                                                  convictions (31.3%), as compared to the
                                                                                                          grandparents.]’’.
                                                  following new paragraph (3):                                                                       within-range rate for those who received
                                                     ‘‘(3) [16], if the defendant smuggled,               Issue for Comment                          no enhancements under § 2L1.2(b)
                                                  transported, or harbored an unlawful                       1. The Department of Justice has        (92.7%);
                                                  alien as part of an ongoing commercial                  stated that alien smuggling offenses          • significant differences in the rates
                                                  organization; or’’;]                                    often involved sexual abuse of the aliens  of application of the various
                                                     and in subsection (b)(4) by striking ‘‘If            smuggled, transported, or harbored,        enhancements in § 2L1.2(b) appeared
                                                  the defendant smuggled, transported, or                 particularly of unaccompanied minors.      among the districts where most illegal
                                                  harbored a minor who was                                The proposed amendment would amend reentry offenders were prosecuted;
                                                  unaccompanied by the minor’s parent or                  the commentary to § 2L1.1 to clearly          • the average illegal reentry offender
                                                  grandparent’’ and inserting ‘‘If the                    state that the term ‘‘serious bodily       was deported 3.2 times before his
                                                  offense involved the smuggling,                         injury’’ included in subsection (b)(7)(B)  instant illegal reentry prosecution, and
                                                  transporting, or harboring of a minor                   has the meaning given to that term in      over one-third (38.1%) were previously
                                                  who the defendant knew [or had reason                   the Commentary to § 1B1.1 (Application deported after a prior illegal entry or
                                                  to believe] was unaccompanied by the                    Instructions), which is deemed to have     illegal reentry conviction;
                                                  minor’s parent or grandparent’’.
                                                                                                          occurred if the offense involved conduct      • 61.9 percent of offenders were
                                                     The Commentary to § 2L1.1 captioned                                                             convicted of at least one criminal
                                                                                                          constituting criminal sexual abuse
                                                  ‘‘Application Notes’’ is amended—                                                                  offense after illegally reentering the
                                                     in Note 1—                                           under 18 U.S.C. 2241 or § 2242 or any
                                                                                                          similar offense under state law. The       United States;
                                                     [Option 2 (continued):
                                                                                                          Commission invites comment on                 • 4.7 percent of illegal reentry
                                                     by inserting before the paragraph that
                                                                                                          whether the 4-level enhancement at         offenders had no prior convictions and
                                                  begins ‘‘ ‘The offense was committed
                                                  other than for profit’ means’’ the                      § 2L1.1(b)(7)(B) adequately accounts for not more than one prior deportation
                                                  following new paragraph:                                cases in which the offense covered by      before their instant illegal reentry
                                                     ‘‘ ‘As part of an ongoing commercial                 this guideline involved sexual abuse of    prosecutions; and
                                                  organization’ means that the defendant                  an alien who was smuggled,                    • most illegal reentry offenders were
                                                  participated (A) in a continuing                        transported, or harbored. If not, what     apprehended by immigration officials at
                                                  organization or enterprise of five or                   revisions to § 2L1.1 would be              or near the border.
                                                  more persons that had as one of its                     appropriate to account for this conduct?      The statutory penalty structure for
                                                  primary purposes the smuggling,                         For example, should the Commission         illegal reentry offenses is based on
                                                  transporting, or harboring of unlawful                  provide one or more specific offense       whether the defendant had a criminal
                                                  aliens for profit, and (B) with knowledge               characteristics or departure provisions    conviction before he or she was
                                                  [or reason to believe] that the members                 to better account for this conduct? If so, deported. The offense of illegal reentry,
                                                  of the continuing organization or                       what should the Commission provide?        set forth in 8 U.S.C. 1326, applies to
                                                  enterprise smuggled, transported, or                                                               defendants who previously were
                                                                                                          (B) Illegal Reentry                        deported from, or unlawfully remained
                                                  harbored different groups of unlawful
                                                  aliens on more than one occasion.’’;]                      Synopsis of the Proposed                in, the United States. Specifically, the
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                                                     in the paragraph that begins ‘‘ ‘Minor’              Amendment: This part of the proposed       statutory maximum term of
                                                  means’’ by striking ‘‘16 years’’ and                    amendment is also informed by the          imprisonment is—
                                                  inserting ‘‘[18] years’’;                               Commission’s recent report on offenders       • two years, in general (see 8 U.S.C.
                                                     and by inserting after the paragraph                 sentenced under § 2L1.2 (Unlawfully        1326(a)); but
                                                  that begins ‘‘‘Parent’ means’’ the                      Entering or Remaining in the United           • 10 years, if the defendant was
                                                  following new paragraph:                                States). See United States Sentencing      deported after sustaining (A) three
                                                     ‘‘ ‘Bodily injury,’ ‘serious bodily                  Commission, Illegal Reentry Offenses       misdemeanor convictions involving
                                                  injury,’ and ‘permanent or life-                        (2015), available at http://www.ussc.gov/ drugs or crimes against the person, or


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                                                                                 Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Notices                                              2309

                                                  both, or (B) one felony conviction (see                 sentence imposed rather than on the                    both in the sentence length required and
                                                  8 U.S.C. § 1326(b)(1)); or                              type of offense (e.g., ‘‘crime of                      the level of enhancement to be applied.
                                                     • 20 years, if the defendant was                     violence’’)—in other words, the                        As with subsection (b)(1), prior
                                                  deported after sustaining an ‘‘aggravated               proposed amendment would eliminate                     convictions would be considered under
                                                  felony’’—a term that covers a range of                  the use of the ‘‘categorical approach’’ for            subsection (b)(2) only if they receive
                                                  offense types, listed in 8 U.S.C.                       predicate felony convictions in § 2L1.2.               criminal history points under Chapter
                                                  § 1101(a)(43), that includes such                       Also, the proposed amendment                           Four.
                                                  different offense types as murder and                   accounts for prior convictions for illegal               Finally, the proposed amendment
                                                  tax evasion (see 8 U.S.C. § 1326(b)(2)).                reentry separately from other types of                 provides a new departure provision for
                                                     The penalty structure of the guideline               convictions.                                           cases in which the defendant was
                                                  is similar to the statutory penalty                        First, the proposed amendment                       previously deported on multiple
                                                  structure. The guideline provides a base                amends subsection (a) of § 2L1.2 to                    occasions not reflected in prior
                                                  offense level of 8 and a tiered                         provide alternative base offense levels of             convictions under 8 U.S.C. 1253,
                                                  enhancement based on whether the                        [14] and [12] if the defendant had one                 § 1325(a), or § 1326. It also revises the
                                                  defendant had a criminal conviction                     or more prior convictions for illegal                  departure provision based on
                                                  before he or she was deported.                          reentry offenses under 8 U.S.C. 1253,                  seriousness of a prior conviction to
                                                  Specifically, the enhancement is—                       § 1325(a), or § 1326. For defendants                   bring it more into parallel with § 4A1.3
                                                     • 4 levels, for (A) three misdemeanor                without such prior convictions, the                    (Adequacy of Criminal History
                                                  convictions for crimes of violence or                   proposed amendment increases the                       Category) and provide examples related
                                                  drug trafficking offenses, or (B) any                   otherwise applicable base offense level                to: (1) cases in which serious offenses
                                                  felony (see § 2L1.2(b)(1)(D),(E));                      from 8 to [10]. The alternative base                   do not qualify for an adjustment under
                                                     • 8 levels, for an ‘‘aggravated felony’’             offense levels at subsection (a) apply                 subsection (b)(1) and the new
                                                  (see § 2L1.2(b)(1)(C));                                 without regard to whether the prior                    subsection (b)(2) because they did not
                                                     • 12 levels, for a felony drug                       conviction receives criminal history                   receive criminal history points; and (2)
                                                  trafficking offense for which the                       points.                                                for cases in which a defendant
                                                  sentence imposed was 13 months or less                     Second, the proposed amendment                      committed one or more felony offenses
                                                  (see § 2L1.2(b)(1)(B)); and                             changes how subsection (b)(1) accounts
                                                     • 16 levels, for specific types of                                                                          but no conviction resulted from the
                                                                                                          for pre-deportation convictions—basing                 commission of such offense or offenses.
                                                  felonies: a drug trafficking offense for                them not on the type of offense (e.g.,
                                                  which the sentence imposed was more                                                                            The proposed amendment also brackets
                                                                                                          ‘‘crime of violence’’) but on the length               the possibility of deleting the departure
                                                  than 13 months, a crime of violence, a                  of the sentence imposed for a felony
                                                  firearms offense, a child pornography                                                                          based on time served in state custody.
                                                                                                          conviction. The proposed amendment                       In addition, the proposed amendment
                                                  offense, a national security or terrorism               incorporates these new enhancements                    would make conforming changes to the
                                                  offense, a human trafficking offense, or                in subdivision (A) through (C) at                      application notes, including the
                                                  an alien smuggling offense (see                         subsection (b)(1). Specifically, if the                consolidation of all guideline
                                                  § 2L1.2(b)(1)(A)).                                      defendant had a felony conviction and
                                                     The penalties in the illegal reentry                                                                        definitions in one place.
                                                                                                          the sentence imposed was [24] months                     Issues for comment are also included.
                                                  statute apply based on the criminal                     or more, an enhancement of [8] levels
                                                  convictions the defendant had before he                 would apply. If the defendant had a                    Proposed Amendment
                                                  or she was deported, regardless of the                  felony conviction and the sentence                        Section 2L1.2 is amended—
                                                  age of the prior conviction. Likewise,                  imposed was at least [12] months but                      in subsection (a) by striking ‘‘Base
                                                  until 2011, the enhancements in § 2L1.2                 less than [24] months, an enhancement                  Offense Level: 8’’ and inserting the
                                                  applied regardless of the age of the prior              of [6] levels would apply. If the                      following:
                                                  conviction. In 2011, the Commission                     defendant had a felony conviction and                     ‘‘Base Offense Level (Apply the
                                                  revised the guideline to provide that the               the sentence imposed was less than [12]                Greatest):
                                                  16- and 12-level enhancements would                     months, an enhancement of [4] levels                      (1) [14], if the defendant committed
                                                  be reduced to 12 and 8 levels,                          would apply. Finally, an enhancement                   the instant offense of conviction after
                                                  respectively, if the conviction was too                 of [2] levels would apply if the                       sustaining two or more convictions for
                                                  remote in time (too ‘‘stale’’) to receive               defendant had three or more convictions                illegal reentry offenses;
                                                  criminal history points under the timing                for misdemeanors involving drugs or                       (2) [12], if the defendant committed
                                                  limits set forth in Chapter Four                        crimes against the person. If more than                the instant offense of conviction after
                                                  (Criminal History and Criminal                          one of these enhancements apply, the                   sustaining a conviction for an illegal
                                                  Livelihood). See USSG App. C, Amend.                    court is instructed to apply the greatest.             reentry offense;
                                                  754 (effective Nov. 1, 2011). The other                    Third, the proposed amendment                          (3) [10], otherwise.’’;
                                                  enhancements continue to apply                          would permit prior convictions to be                      in subsection (b) by striking
                                                  regardless of the age of the prior                      considered under subsection (b)(1) only                ‘‘Characteristic’’ in the heading and
                                                  conviction (i.e., without regard to                     if they receive criminal history points                inserting ‘‘Characteristics’’; by striking
                                                  whether the conviction receives                         under Chapter Four.                                    subsection (b)(1) and inserting the
                                                  criminal history points). See § 2L1.2,                     To account for post-reentry criminal                following new subsection (b)(1):
                                                  comment. (n.1(C)).                                      activity, the proposed amendment                          ‘‘(1) Apply the Greatest:
                                                     Part B of the proposed amendment                     inserts a new subsection (b)(2) to                        If, before the defendant’s first
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                                                  amends § 2L1.2 to lessen the emphasis                   provide a tiered enhancement for a                     deportation or first order of removal, the
                                                  on pre-deportation convictions by                       defendant who engaged in criminal                      defendant sustained—
                                                  providing new enhancements for more                     conduct resulting in a conviction for                     (A) a conviction for a felony offense
                                                  recent, post-reentry convictions and a                  one or more felony offenses after the                  (other than an illegal reentry offense) for
                                                  corresponding reduction in the                          defendant’s first deportation or first                 which the sentence imposed was [24]
                                                  enhancements for past, pre-deportation                  order of removal. The structure of the                 months or more, increase by [8] levels;
                                                  convictions. The enhancements for                       new subsection (b)(2) parallels the                       (B) a conviction for a felony offense
                                                  these convictions would be based on the                 proposed changes to subsection (b)(1),                 (other than an illegal reentry offense) for


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                                                  2310                           Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Notices

                                                  which the sentence imposed was at least                    ‘Felony’ means any federal, state, or               a defendant who is convicted under 8
                                                  [12] months but less than [24] months,                  local offense punishable by                            U.S.C. 1326 for the first time but was
                                                  increase by [6] levels;                                 imprisonment for a term exceeding one                  deported five times prior to the instant
                                                     (C) a conviction for a felony offense                year.                                                  offense of illegal reentry.
                                                  (other than an illegal reentry offense) for                ‘Illegal reentry offense’ means (A) an                 5. Departure Based on Seriousness of
                                                  which the sentence imposed was less                     offense under 8 U.S.C. 1253 or § 1326,                 Criminal History.—There may be cases
                                                  than [12] months, increase by [4] levels;               or (B) a second or subsequent offense                  in which the applicable offense level
                                                  or                                                      under 8 U.S.C. 1325(a) (regardless of                  substantially overstates or understates
                                                     (D) three or more convictions for                    whether the conviction was designated                  the seriousness of a defendant’s
                                                  misdemeanors involving drugs, crimes                    a felony or misdemeanor).                              criminal history. In such a case, a
                                                  against the person, or both, increase by                   ‘Misdemeanor’ means any federal,                    departure may be warranted. See
                                                  [2] levels.’’;                                          state, or local offense punishable by a                § 4A1.3 (Departures Based on
                                                     and by inserting at the end the                      term of imprisonment of one year or                    Inadequacy of Criminal History
                                                  following new subsection (b)(2):                        less.                                                  Category (Policy Statement)). Examples:
                                                     ‘‘(2) Apply the Greatest:                               ‘Sentence imposed’ has the meaning                  (A) In a case in which an adjustment
                                                     If, at any time after the defendant’s                given the term ‘sentence of                            under subsection (b)(1) or (b)(2) does
                                                  first deportation or first order of                     imprisonment’ in Application Note 2                    not apply because a prior serious
                                                  removal, the defendant engaged in                       and subsection (b) of § 4A1.2                          conviction (e.g., murder) is not within
                                                  criminal conduct resulting in—                          (Definitions and Instructions for                      the time limits set forth in § 4A1.2(e)
                                                     (A) a conviction for a felony offense                Computing Criminal History), without                   and did not receive criminal history
                                                  (other than an illegal reentry offense) for             regard to the date of the conviction. The              points, an upward departure may be
                                                  which the sentence imposed was [24]                     length of the sentence imposed includes                warranted to reflect the serious nature of
                                                  months or more, increase by [8] levels;                 any term of imprisonment given upon                    the defendant’s prior conviction. (B) In
                                                     (B) a conviction for a felony offense                revocation of probation, parole, or                    a case in which a defendant committed
                                                  (other than an illegal reentry offense) for             supervised release, but only if the                    one or more felony offenses but
                                                  which the sentence imposed was at least                 revocation occurred before the                         subsections (b)(1) and (b)(2) do not
                                                  [12] months but less than [24] months,                  defendant was deported or unlawfully                   apply because no conviction resulted
                                                  increase by [6] levels;                                 remained in the United States.                         from the commission of such offense or
                                                     (C) a conviction for a felony offense                   ‘Three or more convictions’ means at                offenses, an upward departure may be
                                                  (other than an illegal reentry offense) for             least three convictions for offenses that              warranted.’’;
                                                  which the sentence imposed was less                     are not treated as a single sentence                      [by striking Note 8 as follows:
                                                  than [12] months, increase by [4] levels;               pursuant to subsection (a)(2) of § 4A1.2                  8. Departure Based on Time Served in
                                                  or                                                      (Definitions and Instructions for                      State Custody.—In a case in which the
                                                     (D) three or more convictions for                    Computing Criminal History).                           defendant is located by immigration
                                                  misdemeanors involving drugs, crimes                       3. Criminal History Points.—The                     authorities while the defendant is
                                                  against the person, or both, increase by                alternative base offense levels at                     serving time in state custody, whether
                                                  [2] levels.’’.                                          subsection (a) apply without regard to                 pre- or post-conviction, for a state
                                                     The Commentary to § 2L1.2 captioned                  whether a conviction for an illegal                    offense, the time served is not covered
                                                  ‘‘Statutory Provisions’’ is amended by                  reentry offense receives criminal history              by an adjustment under § 5G1.3(b) and,
                                                  inserting after ‘‘8 U.S.C.’’ the following:             points. However, for purposes of                       accordingly, is not covered by a
                                                  ‘‘§ 1253,’’.
                                                                                                          applying subsections (b)(1) and (b)(2),                departure under § 5K2.23 (Discharged
                                                     The Commentary to § 2L1.2 captioned
                                                                                                          use only those convictions that receive                Terms of Imprisonment). See § 5G1.3(a).
                                                  ‘‘Application Notes’’ is amended—
                                                     in Note 1, in the heading, by striking               criminal history points under                          In such a case, the court may consider
                                                  ‘‘Subsection (b)(1)’’ and inserting                     § 4A1.1(a), (b), or (c), and that are                  whether a departure is appropriate to
                                                  ‘‘Subsections (b)(1) and (b)(2)’’;                      counted separately under § 4A1.2(a)(2).                reflect all or part of the time served in
                                                     in Note 1(A) by striking ‘‘For purposes                 A conviction taken into account                     state custody, from the time
                                                  of subsection (b)(1)’’ and inserting ‘‘For              under subsection (a) or (b) is not                     immigration authorities locate the
                                                  purposes of this guideline’’;                           excluded from consideration of whether                 defendant until the service of the federal
                                                     by striking Notes 1(B) and 1(C), and                 that conviction receives criminal history              sentence commences, that the court
                                                  inserting the following new Note 1(B):                  points pursuant to Chapter Four, Part A                determines will not be credited to the
                                                     ‘‘(B) Interaction of Subsections (b)(1)              (Criminal History).                                    federal sentence by the Bureau of
                                                  and (b)(2).—Subsections (b)(1) and                         4. Departure Based on Multiple Prior                Prisons. Any such departure should be
                                                  (b)(2) are intended to divide the                       Deportations not Reflected in Prior                    fashioned to achieve a reasonable
                                                  defendant’s criminal history into two                   Convictions.—There may be cases in                     punishment for the instant offense.
                                                  time periods. Subsection (b)(1) reflects                which the alternative base offense levels                 Such a departure should be
                                                  the convictions, if any, that the                       at subsections (a)(1) and (a)(2) do not                considered only in cases where the
                                                  defendant sustained before his first                    apply and the defendant was previously                 departure is not likely to increase the
                                                  deportation or order of removal                         deported (voluntarily or involuntarily)                risk to the public from further crimes of
                                                  (whichever event occurs first).                         on multiple occasions not reflected in                 the defendant. In determining whether
                                                  Subsection (b)(2) reflects the                          prior convictions under 8 U.S.C. 1253,                 such a departure is appropriate, the
                                                  convictions, if any, that the defendant                 § 1325(a), or § 1326. In such a case, an               court should consider, among other
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                                                  sustained after that event (when the                    upward departure may be warranted to                   things, (A) whether the defendant
                                                  criminal conduct that resulted in the                   reflect both the increased culpability of              engaged in additional criminal activity
                                                  conviction took place after that event).’’;             a defendant with multiple prior                        after illegally reentering the United
                                                     by striking Notes 2 through 7 and                    deportations, as well as the increased                 States; (B) the seriousness of any such
                                                  inserting the following new Notes 2, 3,                 risk of future illegal reentry (as reflected           additional criminal activity, including
                                                  4, and 5:                                               in the defendant’s record of multiple                  (1) whether the defendant used violence
                                                     ‘‘2. Definitions.—For purposes of this               prior deportations). For example, an                   or credible threats of violence or
                                                  guideline:                                              upward departure may be warranted for                  possessed a firearm or other dangerous


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                                                                                 Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Notices                                            2311

                                                  weapon (or induced another person to                    public-comment). Cf. Almanza-Arenda                    defendant’s culpability and need for
                                                  do so) in connection with the criminal                  v. Lynch, llF.3d ll, 2015 WL                           incapacitation and deterrence?
                                                  activity, (2) whether the criminal                      9462976 at *8–*9 (9th Cir. Dec. 28,                       For example, the proposed
                                                  activity resulted in death or serious                   2015) (Owens, J., concurring, joined by                amendment would amend subsection (a)
                                                  bodily injury to any person, and (3)                    Tallman, Bybee & Callahan) (‘‘The                      of § 2L1.2 to provide alternative base
                                                  whether the defendant was an organizer,                 bedeviling . . . [‘]categorical approach’              offense levels if the defendant had one
                                                  leader, manager, or supervisor of others                will continue to spit out intra- and inter-            or more prior convictions for illegal
                                                  in the criminal activity; and (C) the                   circuit splits and confusion, which are                reentry offenses under 8 U.S.C. § 1253,
                                                  seriousness of the defendant’s other                    inevitable when we have hundreds of                    § 1325(a), or § 1326. What are the
                                                  criminal history.’’;]                                   federal judges reviewing thousands of                  advantages and disadvantages of basing
                                                     and by redesignating Note 9 as Note                  criminal state laws and certain                        alternative base offense levels on illegal
                                                  6.                                                      documents to determine if an offense is                reentry convictions? Should the
                                                                                                          ‘categorically[’] [a predicate                         Commission use a different approach for
                                                  Issues for Comment
                                                                                                          offense]. . . . A better mousetrap is                  such alternative base offense levels?
                                                     1. Some commentators have                            long overdue. Rather than compete with                 Should the Commission use
                                                  expressed concern about the operation                   Rube Goldberg, we instead should look                  deportations and orders of removal
                                                  of the illegal reentry guideline and the                to a more objective standard, such as the              instead to apply the base offense levels?
                                                  severity of the enhancements available                  length of the underlying sentence [to                     If the Commission provided
                                                  in subsection (b) for some offenders.                   determine what is a predicate                          additional enhancements to account for
                                                  The Commission’s recent report found                    offense].’’).                                          aggravating factors relevant to a
                                                  that the rate of within-range sentences                    The proposed amendment would                        defendant’s culpability other than pre-
                                                  differed substantially depending on the                 eliminate the use of the ‘‘categorical                 deportation convictions, how should
                                                  level of enhancement under                              approach’’ for predicate felony                        these enhancements interact? How
                                                  § 2L1.2(b)(1). The rate of within-                      convictions and provide for                            much weight should be given to pre-
                                                  guideline range sentences was                           enhancements based on the sentence                     deportation convictions in relation to
                                                  significantly lower among defendants                    imposed rather than on the type of                     prior illegal reentry convictions or post-
                                                  who received the 16-level enhancement                   offense. What are the advantages and                   reentry convictions in driving the
                                                  (31.3%) as compared to the within-                      disadvantages of basing the                            guideline range? Should the guideline
                                                  range rate for those who received no                    enhancement on the type of the prior                   provide greater emphasis on one or
                                                  enhancements (92.7%). The report                        conviction? What are the advantages                    more of these factors? For example,
                                                  showed that the greater enhancements                    and disadvantages of basing the                        should the guideline give more weight
                                                  result in the lowest within-range                       enhancement on the length of the                       to post-reentry convictions and less
                                                  sentences (52.5% within range for 4-                    sentence imposed on the prior                          weight to pre-deportation convictions
                                                  level enhancement, 46.7% within range                   conviction? If the Commission were to                  (e.g., a 10-level enhancement for a post-
                                                  for 8-level enhancement, 32.8% within                   adopt the sentence-imposed model, are                  reentry conviction for which the
                                                  range for 12-level enhancement).                        the 24- and 12-month gradations                        sentence imposed was 24 months or
                                                     The Commission seeks comment on                      included in the proposed amendment                     more with a corresponding 6-level
                                                  whether illegal reentry offenses are                    appropriate? Should the Commission                     enhancement for a pre-deportation
                                                  adequately addressed by the guidelines.                 adopt different gradations, such as the                conviction for which the sentence
                                                  Should the Commission consider                          ones currently used in Chapter Four of                 imposed was 24 months or more)?
                                                  amending § 2L1.2 and, if so, how?                       the Guidelines Manual (i.e., ‘‘exceeding                  What other aggravating factors, if any,
                                                     2. Currently, § 2L1.2 requires the                   one year and one month’’ and ‘‘at least                should the Commission incorporate into
                                                  court to classify the defendant’s prior                 sixty days’’), or more or fewer                        § 2L1.2, and how should the
                                                  convictions by type (e.g., is it a ‘‘crime              gradations? If the Commission were to                  Commission incorporate them? Should
                                                  of violence’’ or is it an ‘‘aggravated                  provide a different approach to apply                  the factor be an enhancement, an
                                                  felony’’?), a task that involves the                    the enhancements at § 2L1.2, what                      alternative base offense level, a
                                                  Supreme Court’s ‘‘categorical                           should that different approach be?                     minimum offense level, an upward
                                                  approach.’’ In recent years, the                           3. As noted in the Commission’s                     departure provision, or some
                                                  Commission has received commentary                      recent report, both the illegal reentry                combination of these? If so, what level
                                                  from stakeholders in the federal                        statute and § 2L1.2 provide enhanced                   of enhancement should apply?
                                                  criminal justice system—including                       penalties only if the defendant                           What mitigating factors, if any, should
                                                  district and circuit judges, federal                    sustained a conviction before being                    the Commission incorporate into
                                                  probation officers, the Department of                   deported. A defendant receives at most                 § 2L1.2, and how should the
                                                  Justice, and some defense counsel—that                  a single enhancement under § 2L1.2—                    Commission incorporate them? For
                                                  the use of a ‘‘categorical approach’’ to                based on the most serious conviction.                  example, should the Commission
                                                  determine if a predicate conviction                     Additional convictions that occurred                   provide a new departure provision for
                                                  qualifies for an enhancement under                      before the defendant’s most recent                     cases in which the defendant’s predicate
                                                  § 2L1.2(b) requires a cumbersome,                       deportation, and convictions that                      felony conviction is based on an offense
                                                  overly detailed, and resource-intensive                 occurred after the defendant’s most                    that was classified by the laws of the
                                                  legal analysis that often is under- or                  recent illegal reentry, are not taken into             state as a misdemeanor?
                                                  over-inclusive regarding the actual                     account in the calculation of the offense                 4. Currently, § 2L1.2 provides
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                                                  seriousness of offenders’ predicate                     level (although they may be taken into                 enhanced penalties based on
                                                  convictions. See, e.g., Comment                         account in the criminal history score).                convictions sustained prior to the
                                                  Received by the Commission in                              Should the Commission amend how                     defendant’s most recent deportation
                                                  Response to Request for Public                          the enhancements at § 2L1.2 work and,                  from the United States. The proposed
                                                  Comment on Proposed Priorities from                     if so, how? Should the Commission                      amendment would modify how the
                                                  2010 to 2015 (available on the                          amend § 2L1.2 to account not only for                  enhancements work in the illegal
                                                  Commission’s Web site at                                pre-deportation convictions but also for               reentry guideline. Specifically, it would
                                                  www.ussc.gov/amendment-process/                         other aggravating factors relevant to a                divide the defendant’s criminal history


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                                                  2312                           Federal Register / Vol. 81, No. 10 / Friday, January 15, 2016 / Notices

                                                  into two time periods. Subsection (b)(1)                   6. The Commission recently                          contains information concerning the
                                                  would reflect the convictions that the                  promulgated an amendment that                          SSVF Program, initial supportive
                                                  defendant sustained before his or her                   amends the definition of ‘‘crime of                    services grant application processes,
                                                  first deportation or order of removal                   violence’’ in subsection (a) of § 4B1.2                and the amount of funding available.
                                                  (whichever event occurs first).                         (Definitions of Terms Used in Section                  Awards made for supportive services
                                                  Subsection (b)(2) would then reflect the                4B1.1), effective August 1, 2016 (to be                grants will fund operations beginning
                                                  convictions that the defendant sustained                published in a forthcoming edition of                  October 1, 2016.
                                                  after that event (when the criminal                     the Federal Register). The changes                     DATES: Applications for supportive
                                                  conduct that resulted in the conviction                 made by that amendment include                         services grants under the SSVF Program
                                                  took place after that event).                           revising the list of enumerated offenses               must be received by the SSVF Program
                                                     What are the advantages and                          and adding definitions for the                         Office by 4:00 p.m. Eastern Time on
                                                  disadvantages of using a particular                     enumerated offenses of extortion and a                 February 5, 2016. In the interest of
                                                  deportation or order of removal as the                  forcible sex offense. Finally, the                     fairness to all competing applicants, this
                                                  determining event for whether a prior                   amendment includes a downward                          deadline is firm as to date and hour, and
                                                  conviction qualifies for an enhancement                 departure provision in § 4B1.1 for cases               VA will treat as ineligible for
                                                  under subsection (b)(1) or subsection                   in which the defendant’s prior ‘‘crime of              consideration any application that is
                                                  (b)(2)? Should the Commission use a                     violence’’ or ‘‘controlled substance                   received after the deadline. Applicants
                                                  different approach to distinguish pre-                  offense’’ is based on an offense that was              should take this practice into account
                                                  deportation convictions from post-                      classified by the laws of the state as a               and make early submission of their
                                                  reentry convictions? For example,                       misdemeanor.                                           materials to avoid any risk of loss of
                                                  should the Commission provide instead                      The proposed amendment would                        eligibility brought about by
                                                  that a prior conviction sustained before                eliminate the use of the term ‘‘crime of               unanticipated delays, computer service
                                                  any deportation would qualify for an                    violence’’ in § 2L1.2. In the event that               outages, or other delivery-related
                                                  enhancement for pre-deportation                         the Commission does not promulgate                     problems.
                                                  convictions? If so, how should such                     the proposed amendment, and retains                    ADDRESSES: For a Copy of the
                                                  enhancement interact with an                            the term ‘‘crime of violence’’ in § 2L1.2,
                                                  enhancement based on post-reentry                                                                              Application Package: Copies of the
                                                                                                          should the Commission incorporate all                  application can be downloaded directly
                                                  convictions as provided in the proposed                 or part of the definition of ‘‘crime of
                                                  amendment?                                                                                                     from the SSVF Program Web site at:
                                                                                                          violence’’ provided in the recently                    www.va.gov/homeless/ssvf.asp.
                                                     5. In 2014, the Commission amended                   amended § 4B1.2 into § 2L1.2? If the
                                                  the Commentary to § 2L1.1 to add a                                                                             Questions should be referred to the
                                                                                                          Commission were to conform § 2L1.2 to                  SSVF Program Office via email at
                                                  departure provision for cases in which                  the new definition in § 4B1.2(a), are
                                                  the defendant is located by immigration                                                                        SSVF@va.gov. For detailed SSVF
                                                                                                          there any particular offenses that would               Program information and requirements,
                                                  authorities while the defendant is in                   no longer qualify as a ‘‘crime of
                                                  state custody for a state offense                                                                              see part 62 of Title 38, Code of Federal
                                                                                                          violence’’ but that nonetheless should                 Regulations (38 CFR part 62).
                                                  unrelated to the federal illegal reentry                receive an enhancement under
                                                  offense. In such a case, the time served                                                                          Submission of Application Package:
                                                                                                          subsection (b)(1) (e.g., statutory rape or             Applicants are strongly encouraged to
                                                  is not covered by adjustment under                      burglary of a dwelling)?
                                                  § 5G1.3 (Imposition of a Sentence on a                                                                         submit applications electronically
                                                  Defendant Subject to an Undischarged                    [FR Doc. 2016–00766 Filed 1–14–16; 8:45 am]            following instructions found at
                                                  Term of Imprisonment or Anticipated                     BILLING CODE 2210–40–P                                 www.va.gov/homeless/ssvf.asp.
                                                  State Term of Imprisonment) and,                                                                               Alternatively, applicants can mail in
                                                  accordingly, is not covered by a                                                                               applications. If mailed, applicants must
                                                  departure under § 5K2.23 (Discharged                    DEPARTMENT OF VETERANS                                 submit two completed, collated, hard
                                                  Terms of Imprisonment). Under the                       AFFAIRS                                                copies of the application and two
                                                  current guideline, the departure allows                                                                        compact discs (CDs) containing
                                                  courts to depart to reflect all or part of              Funding Availability Under Supportive                  electronic versions of the entire
                                                  the time served in state custody for the                Services for Veteran Families Program                  application are required. Each
                                                  unrelated offense, from the time federal                                                                       application copy must (i) be fastened
                                                                                                          AGENCY: Veterans Health
                                                  immigration authorities locate the                                                                             with a binder clip, and (ii) contain tabs
                                                                                                          Administration, VA.
                                                  defendant until the service of the federal                                                                     listing the major sections of and exhibits
                                                                                                          ACTION: Notice of fund availability.
                                                  sentence commences, that the court                                                                             to the application. Each CD must be
                                                  determines will not be credited to the                  SUMMARY:                                               labeled with the applicant’s name and
                                                  federal sentence by the Bureau of                         Funding Opportunity Title:                           must contain an electronic copy of the
                                                  Prisons. The proposed amendment                         Supportive Services for Veteran                        entire application. A budget template
                                                  brackets the possibility of deleting the                Families Program.                                      must be attached in Excel format on the
                                                  departure provision at Application Note                   Announcement Type: Initial.                          CD, but all other application materials
                                                  8 to § 2L1.2.                                             Funding Opportunity Number: VA–                      may be attached in a PDF or other
                                                     If the Commission were to promulgate                 SSVF–011516.                                           format. The application copies and CDs
                                                  the proposed amendment revising how                       Catalog of Federal Domestic                          must be submitted to the following
                                                  the enhancements at the illegal reentry                 Assistance Number: 64.033, VA                          address: Supportive Services for Veteran
mstockstill on DSK4VPTVN1PROD with NOTICES




                                                  guideline work, should the Commission                   Supportive Services for Veteran                        Families Program Office National Center
                                                  delete the departure based on time                      Families Program.                                      on Homelessness Among Veterans, 4100
                                                  served in state custody? If not, how                      The Department of Veterans Affairs                   Chester Avenue, Suite 201,
                                                  should the new enhancements at § 2L1.2                  (VA) is announcing the availability of                 Philadelphia, PA 19104. Applicants
                                                  interact with the departure provision?                  funds for supportive services grants                   must submit two hard copies and two
                                                  For example, should the Commission                      under the Supportive Services for                      CDs. Applications may not be sent by
                                                  limit the applicability of the departure                Veteran Families (SSVF) Program. This                  facsimile (FAX). Applications must be
                                                  provision?                                              Notice of Fund Availability (NOFA)                     received in the SSVF Program Office by


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Document Created: 2018-02-02 12:32:17
Document Modified: 2018-02-02 12:32:17
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice of proposed amendments to sentencing guidelines, policy statements, and commentary. Request for public comment, including public comment regarding retroactive application of any of the proposed amendments; public hearing.
Dates(1) Written Public Comment.--Written public comment regarding the proposed amendments and issues for comment set forth in this notice, including public comment regarding retroactive application of any of the proposed amendments, should be received by the Commission not later than March 21, 2016.
ContactMatt Osterrieder, Legislative Specialist, (202) 502-4500, [email protected]
FR Citation81 FR 2295 

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