81 FR 2295 - Sentencing Guidelines for United States Courts
UNITED STATES SENTENCING COMMISSION Federal Register Volume 81, Issue 10 (January 15, 2016)
Federal Register Volume 81, Issue 10 (January 15, 2016)
| Page Range | 2295-2312 | |
| FR Document | 2016-00766 |
[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] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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 Public_Comment@ussc.gov. 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, pubaffairs@ussc.gov. 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
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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.
mstockstill on DSK4VPTVN1PROD with NOTICES
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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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 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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![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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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
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| 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. | |
| 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. | |
| Contact | Matt Osterrieder, Legislative Specialist, (202) 502-4500, [email protected] | |
| FR Citation | 81 FR 2295 |
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