81 FR 92003 - Sentencing Guidelines for United States Courts
UNITED STATES SENTENCING COMMISSION Federal Register Volume 81, Issue 243 (December 19, 2016)
Federal Register Volume 81, Issue 243 (December 19, 2016)
| Page Range | 92003-92021 | |
| FR Document | 2016-30493 |
[Federal Register Volume 81, Number 243 (Monday, December 19, 2016)] [Notices] [Pages 92003-92021] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-30493] ======================================================================= ----------------------------------------------------------------------- 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. Notice of public hearing. ----------------------------------------------------------------------- SUMMARY: 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. 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 February 20, 2017. Written reply comments, which may only respond to issues raised in the original comment period, should be received by the Commission on March 10, 2017. Public comment regarding a proposed amendment received after the close of the comment period, and reply comment received on issues not raised in the original comment period, may not be considered. (2) Public Hearing.--The Commission may hold a public hearing regarding the proposed amendments and issues for comment set forth in this notice. Further information regarding any public hearing that may be scheduled, including requirements for testifying and providing written testimony, as well as the date, time, location, and scope of the hearing, will be provided by the Commission on its Web site at www.ussc.gov. ADDRESSES: All written comment should be sent to the Commission by electronic mail or regular mail. The email address for public comment is [email protected]. The regular mail address for public comment is United States Sentencing Commission, One Columbus Circle NE., Suite 2-500, Washington, DC 20002-8002, Attention: Public Affairs. FOR FURTHER INFORMATION CONTACT: Christine Leonard, Director, Office of Legislative and Public Affairs, (202) 502-4500, [email protected]. SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for federal courts pursuant to 28 U.S.C. 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. 994(o) and submits guideline amendments to the Congress not later than the first day of May each year pursuant to 28 U.S.C. 994(p). The proposed amendments in this notice are presented in one of two formats. First, some of the amendments are proposed as specific revisions to a guideline, policy statement, 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 proposed amendments and issues for comment in this notice are as follows: (1) A multi-part proposed amendment to Chapters Four (Criminal History and Criminal Livelihood) and Five (Determining the Sentence), including (A) setting forth options for a new Chapter Four guideline, at Sec. 4C1.1 (First Offenders), and amending Sec. 5C1.1 (Imposition of a Term of Imprisonment) to provide lower guideline ranges for ``first offenders'' generally and increase the availability of alternatives to incarceration for such offenders at the lower levels of the Sentencing Table, and related issues for comment; and (B) revisions to Chapter Five to (i) amend the Sentencing Table in Chapter Five, Part A to expand Zone B by consolidating Zones B and C, (ii) amend the Commentary to Sec. 5F1.2 (Home Detention) to revise language requiring electronic monitoring, and (iii) related issues for comment. (2) a multi-part proposed amendment relating to the findings and recommendations contained in the May 2016 Report issued by the Commission's Tribal Issues Advisory Group, including (A) amending the Commentary to Sec. 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)) to set forth a non-exhaustive list of factors for the court to consider in determining whether, or to what extent, an upward departure based on a tribal court conviction is appropriate, and related issues for comment; and (B) amending the Commentary to Sec. 1B1.1 (Application Instructions) to provide a definition of ``court protection order,'' and related issues for comment; (3) a proposed amendment to Sec. 4A1.2 (Definitions and Instructions for Computing Criminal History) to revise how juvenile sentences are considered for purposes of calculating criminal [[Page 92004]] history points, and to the Commentary to Sec. 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)) to account for cases in which a defendant had an adult conviction for an offense committed prior to age eighteen counted in the criminal history score that would have been classified as a juvenile adjudication (and therefore not counted) if the laws of the jurisdiction in which the defendant was convicted did not categorically consider offenders below the age of eighteen years as ``adults;'' and related issues for comment; (4) a multi-part proposed amendment to Chapter Four, Part A (Criminal History), including (A) amending Sec. 4A1.2 (Definitions and Instructions for Computing Criminal History) to revise how revocations of probation, parole, supervised release, special parole, or mandatory release are considered for purposes of calculating criminal history points, and related issues for comment; and (B) amending the Commentary to Sec. 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)) to account for cases in which the period of imprisonment actually served by the defendant was substantially less than the length of the sentence imposed for a conviction counted in the criminal history score, and a related issue for comment; (5) a multi-part proposed amendment to respond to the Bipartisan Budget Act of 2015, Public Law 114-74 (Nov. 2, 2015), including (A) revisions to Appendix A (Statutory Index), and a related issue for comment; and (B) amending Sec. 2B1.1 (Theft, Property Destruction, and Fraud) to address new increased penalties for certain persons who commit fraud offenses under certain Social Security programs, and related issues for comment; (6) a proposed amendment to the Commentary to Sec. 3E1.1 (Acceptance of Responsibility) to revise how the defendant's challenge of relevant conduct should be considered in determining whether the defendant has accepted responsibility for purposes of the guideline, and a related issue for comment; (7) a multi-part proposed amendment to the Guidelines Manual to respond to recently enacted legislation and miscellaneous guideline issues, including (A) amending Sec. 2B5.3 (Criminal Infringement of Copyright or Trademark) to respond to changes made by the Transnational Drug Trafficking Act of 2015, Public Law 114-154 (May 16, 2016); (B) amending Sec. 2A3.5 (Failure to Register as a Sex Offender), Sec. 2A3.6 (Aggravated Offenses Relating to Registration as a Sex Offender), and Appendix A (Statutory Index) to respond to changes made by the International Megan's Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders Act, Public Law 114-119 (Feb. 8, 2016); (C) revisions to Appendix A (Statutory Index) to respond to a new offense established by the Frank R. Lautenberg Chemical Safety for the 21st Century Act, Public Law 114- 182 (June 22, 2016); and (D) a technical amendment to Sec. 2G1.3 (Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Sex Trafficking of Children; Use of Interstate Facilities to Transport Information about a Minor); (8) a proposed amendment to make technical changes to Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) to replace the term ``marihuana equivalency'' used in the Drug Equivalency Tables when determining penalties for controlled substances; (9) a proposed amendment to make various technical changes to the Guidelines Manual, including (A) an explanatory note in Chapter One, Part A, Subpart 1(4)(b)(Departures) and clarifying changes to the Commentary to Sec. 2B1.1 (Theft, Property Destruction, and Fraud); (B) technical changes to Sec. 4A1.2 (Definitions and Instructions for Computing Criminal History) and to the Commentary of other guidelines to correct title references to Sec. 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)); and (C) clerical changes to Sec. 2D1.11 (Unlawful Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy), Sec. 5D1.3 (Conditions of Supervised Release), Appendix A (Statutory Index), and to the Commentary of other guidelines; 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 of the Commission 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 and issues for comment 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 4.3, 4.4. Patti B. Saris, Chair. 1. First Offenders/Alternatives to Incarceration Synopsis of Proposed Amendment: The proposed amendment contains two parts (Part A and Part B). The Commission is considering whether to promulgate either or both of these parts, as they are not necessarily mutually exclusive. (A) First Offenders Part A of the proposed amendment is primarily informed by the Commission's multi-year study of recidivism, which included an examination of circumstances that correlate with increased or reduced recidivism. See United States Sentencing Commission, ``Notice of Final Priorities,'' 81 FR 58004 (Aug. 24, 2016). It is also informed by the Commission's continued study of approaches to encourage the use of alternatives to incarceration. Id. Under the Guidelines Manual, offenders with minimal or no criminal history are classified into Criminal History Category I. ``First offenders,'' offenders with no criminal history, are [[Page 92005]] addressed in the guidelines only by reference to Criminal History Category I. However, Criminal History Category I includes not only ``first'' offenders but also offenders with varying criminal histories, such as offenders with no criminal history points and those with one criminal history point. Accordingly, the following offenders are classified in the same category: (1) First time offenders with no prior convictions; (2) offenders who have prior convictions that are not counted because they were not within the time limits set forth in Sec. 4A1.2(d) and (e); (3) offenders who have prior convictions that are not used in computing the criminal history category for reasons other than their ``staleness'' (e.g., sentences resulting from foreign or tribal court convictions, minor misdemeanor convictions or infractions); and (4) offenders with a prior conviction that received only one criminal history point. Part A sets forth a new Chapter Four guideline, at Sec. 4C1.1 (First Offenders), that would provide lower guideline ranges for ``first offenders'' generally and increase the availability of alternatives to incarceration for such offenders at the lower levels of the Sentencing Table (compared to otherwise similar offenders in Criminal History Category I). Recidivism data analyzed by the Commission indicate that ``first offenders'' generally pose the lowest risk of recidivism. See, e.g., U.S. Sent. Comm'n, ``Recidivism Among Federal Offenders: A Comprehensive Overview,'' at 18 (2016), available at http://www.ussc.gov/research/research-publications/recidivism-among-federal-offenders-comprehensive-overview. In addition, 28 U.S.C. 994(j) directs that alternatives to incarceration are generally appropriate for first offenders not convicted of a violent or otherwise serious offense. The new Chapter Four Guideline, in conjunction with the revision to Sec. 5C1.1 (Imposition of a Term of Imprisonment) described below, would further implement the congressional directive at section 994(j). The new Chapter Four guideline would apply if [(1) the defendant did not receive any criminal history points under the rules contained in Chapter Four, Part A, and (2)] the defendant has no prior convictions of any kind. Part A of the proposed amendment sets forth two options for providing such an adjustment. Option 1 provides a decrease of [1] level from the offense level determined under Chapters Two and Three. Option 2 provides a decrease of [2] levels if the final offense level determined under Chapters Two and Three is less than level [16], or a decrease of [1] level if the offense level determined under Chapters Two and Three is level [16] or greater. Part A also amends Sec. 5C1.1 (Imposition of a Term of Imprisonment) to add a new subsection (g) that provides that if (1) the defendant is determined to be a first offender under Sec. 4C1.1 (First Offender), (2) [the instant offense of conviction is not a crime of violence][the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon in connection with the offense], and (3) the guideline range applicable to that defendant is in Zone A or Zone B of the Sentencing Table, the court ordinarily should impose a sentence other than a sentence of imprisonment in accordance with the other sentencing options. Finally, Part A of the proposed amendment also provides issues for comment. (B) Consolidation of Zones B and C in the Sentencing Table Part B of the proposed amendment is a result of the Commission's continued study of approaches to encourage the use of alternatives to incarceration. See United States Sentencing Commission, ``Notice of Final Priorities,'' 81 FR 58004 (Aug. 24, 2016). The Guidelines Manual defines and allocates sentencing options in Chapter Five (Determining the Sentence). This chapter sets forth ``zones'' in the Sentencing Table based on the minimum months of imprisonment in each cell. The Sentencing Table sorts all sentencing ranges into four zones, labeled A through D. Each zone allows for different sentencing options, as follows: Zone A.--All sentence ranges within Zone A, regardless of the underlying offense level or criminal history category, are zero to six months. A sentencing court has the discretion to impose a sentence that is a fine-only, probation-only, probation with a confinement condition (home detention, community confinement, or intermittent confinement), a split sentence (term of imprisonment with term of supervised release with condition of confinement), or imprisonment. Zone A allows for probation without any conditions of confinement. Zone B.--Sentence ranges in Zone B are from one to 15 months of imprisonment. Zone B allows for a probation term to be substituted for imprisonment, contingent upon the probation term including conditions of confinement. Zone B allows for non-prison sentences, which technically result in sentencing ranges larger than six months, because the minimum term of imprisonment is one month and the maximum terms begin at seven months. To avoid sentencing ranges exceeding six months, the guidelines require that probationary sentences in Zone B include conditions of confinement. Zone B also allows for a term of imprisonment (of at least one month) followed by a term of supervised release with a condition of confinement (i.e., a ``split sentence'') or a term of imprisonment only. Zone C.--Sentences in Zone C range from 10 to 18 months of imprisonment. Zone C allows for split sentences, which must include a term of imprisonment equivalent to at least half of the minimum of the applicable guideline range. The remaining half of the term requires supervised release with a condition of community confinement or home detention. Alternatively, the court has the option of imposing a term of imprisonment only. Zone D.--The final zone, Zone D, allows for imprisonment only, ranging from 15 months to life. Part B of the proposed amendment expands Zone B by consolidating Zones B and C. The expanded Zone B would include sentence ranges from one to 18 months and allow for the sentencing options described above. Although the proposed amendment would in fact delete Zone C by its consolidation with Zone B, Zone D would not be redesignated. Finally, Part B makes conforming changes to Sec. Sec. 5B1.1 (Imposition of a Term of Probation) and 5C1.1 (Imposition of a Term of Imprisonment). Part B also amends the Commentary to Sec. 5F1.2 (Home Detention) to remove the language instructing that (1) electronic monitoring ``ordinarily should be used in connection with'' home detention; (2) alternative means of surveillance may be used ``so long as they are effective as electronic monitoring;'' and (3) ``surveillance necessary for effective use of home detention ordinarily requires'' electronic monitoring. Issues for comment are also provided. (A) First Offenders Proposed Amendment Chapter Four is amended by inserting at the end the following new Part C: Part C--First Offender Sec. 4C1.1. First Offender (a) A defendant is a first offender if [(1) the defendant did not receive any criminal history points from Chapter Four, Part A, and (2)] the defendant has no prior convictions of any kind. [[Page 92006]] [Option 1: (b) If the defendant is determined to be a first offender under subsection (a), decrease the offense level determined under Chapters Two and Three by [1] level.] [Option 2: (b) If the defendant is determined to be a first offender under subsection (a), decrease the offense level as follows: (1) if the offense level determined under Chapters Two and Three is less than level [16], decrease by [2] levels; or (2) if the offense level determined under Chapters Two and Three is level [16] or greater, decrease by [1] level.] Commentary Application Note: 1. Cases Involving Mandatory Minimum Penalties.--If the case involves a statutorily required minimum sentence of at least five years and the defendant meets the criteria set forth in subsection (a) of Sec. 5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases), the offense level determined under this section shall be not less than level 17. See Sec. 5C1.2(b).''. Section 5C1.1 is amended by inserting at the end the following new subsection (g): ''(g) In cases in which (1) the defendant is determined to be a first offender under Sec. 4C1.1 (First Offender), (2) [the instant offense of conviction is not a crime of violence][the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon in connection with the offense], and (3) the guideline range applicable to that defendant is in Zone A or B of the Sentencing Table, the court ordinarily should impose a sentence other than a sentence of imprisonment in accordance with the other sentencing options set forth in this guideline.''. The Commentary to Sec. 5C1.1 captioned ``Application Notes'' is amended by inserting at the end the following new Note 10: ``10. Application of Subsection (g).-- (A) Sentence of Probation Prohibited.--The court may not impose a sentence of probation pursuant to this provision if prohibited by statute or where a term of imprisonment is required under this guideline. See Sec. 5B1.1 (Imposition of a Term of Probation). [(B) Definition of `Crime of Violence'.--For purposes of subsection (g), `crime of violence' has the meaning given that term in Sec. 4B1.2 (Definitions of Terms Used in Section 4B1.1). (C) Sentence of Imprisonment for First Offenders.--A sentence of imprisonment may be appropriate in cases in which the defendant used violence or credible threats of violence or possessed a firearm or other dangerous weapon in connection with the offense].''. Issues for Comment 1. The Commission seeks comment on ``first offenders,'' defined in the proposed amendment as defendants with no prior convictions of any kind. Should the Commission broaden the scope of the term ``first offender'' to include other defendants who did not receive criminal history points and, if so, how? For example, should the term ``first offender'' include defendants who have prior convictions that are not used in computing criminal history points under Chapter Four (e.g., sentences resulting from foreign or tribal court convictions, misdemeanors and petty offenses listed in Sec. 4A1.2(c))? Should the Commission instead limit the scope of the term? If so, how? Should the Commission provide additional or different guidance for determining whether a defendant is, or is not, a first offender? 2. Part A of the proposed amendment sets forth a new Chapter Four guideline that would apply if [(1) the defendant did not receive any criminal history points under the rules contained in Chapter Four, Part A, and (2)] the defendant has no prior convictions of any kind. One of the options set forth for this new guideline, Option 1, would provide that if the defendant is determined to be a first offender (as defined in the new guideline) a decrease of [1] level from the offense level determined under Chapters Two and Three would apply. Should the Commission limit the applicability of the adjustment to defendants with an offense level determined under Chapters Two and Three that is less than a certain number of levels? For example, should the Commission provide that if the offense level determined under Chapters Two and Three is less than level [16], the offense level shall be decreased by [1] level? What other limitations or requirements, if any, should the Commission provide for such an adjustment? 3. Part A of the proposed amendment would amend Sec. 5C1.1 (Imposition of a Term of Imprisonment) to provide that if the defendant is determined to be a first offender under the new Sec. 4C1.1 (First Offender), [the defendant's instant offense of conviction is not a crime of violence][the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon in connection with the offense], and the guideline range applicable to that defendant is in Zone A or Zone B of the Sentencing Table, the court ordinarily should impose a sentence other than a sentence of imprisonment in accordance with the other sentencing options. Should the Commission further limit the application of such a rebuttable ``presumption'' and exclude certain categories of non-violent offenses? If so, what offenses should be excluded from the presumption of a non- incarceration sentence? For example, should the Commission exclude public corruption, tax, and other white-collar offenses? 4. If the Commission were to promulgate Part A of the proposed amendment, what conforming changes, if any, should the Commission make to other provisions of the Guidelines Manual? (B) Consolidation of Zones B and C in the Sentencing Table Proposed Amendment Chapter Five, Part A is amended in the Sentencing Table by striking ``Zone C''; by redesignating Zone B to contain all guideline ranges having a minimum of at least one month but not more than twelve months; and by inserting below ``Zone B'' the following: ``[Zone C Deleted]''. The Commentary to Chapter Five, Part A (Sentencing Table) is amended by inserting at the end the following: ``Background: The Sentencing Table previously provided four ``zones,'' labeled A through D, based on the minimum months of imprisonment in each cell. The Commission expanded Zone B by consolidating former Zones B and C. Zone B in the Sentencing Table now contains all guideline ranges having a minimum term of imprisonment of at least one but not more than twelve months. Although Zone C was deleted by its consolidation with Zone B, the Commission decided not to redesignate Zone D as Zone C, to avoid unnecessary confusion that may result from different meanings of ``Zone C'' and ``Zone D'' through different editions of the Guidelines Manual.''. The Commentary to Sec. 5B1.1 captioned ``Application Notes'' is amended in Note 1(B), in the heading, by striking ``nine months'' and inserting ``twelve months''; and in Note 2 by striking ``Zone C or D'' and inserting ``Zone D'', and by striking ``ten months'' and inserting ``fifteen months''. Section 5C1.1 is amended-- in subsection (c) by striking ``subsection (e)'' both places such term appears and inserting ``subsection (d)''; by striking subsection (d) as follows: [[Page 92007]] ``(d) If the applicable guideline range is in Zone C of the Sentencing Table, the minimum term may be satisfied by-- (1) a sentence of imprisonment; or (2) a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement or home detention according to the schedule in subsection (e), provided that at least one-half of the minimum term is satisfied by imprisonment.''; and by redesignating subsections (e) and (f) as subsections (d) and (e), respectively. The Commentary to Sec. 5C1.1 captioned ``Application Notes'' is amended-- in Note 3 by striking ``nine months'' and inserting ``twelve months''; by striking Note 4 as follows: ``4. Subsection (d) provides that where the applicable guideline range is in Zone C of the Sentencing Table (i.e., the minimum term specified in the applicable guideline range is ten or twelve months), the court has two options: (A) It may impose a sentence of imprisonment. (B) Or, it may impose a sentence of imprisonment that includes a term of supervised release with a condition requiring community confinement or home detention. In such case, at least one-half of the minimum term specified in the guideline range must be satisfied by imprisonment, and the remainder of the minimum term specified in the guideline range must be satisfied by community confinement or home detention. For example, where the guideline range is 10-16 months, a sentence of five months imprisonment followed by a term of supervised release with a condition requiring five months community confinement or home detention would satisfy the minimum term of imprisonment required by the guideline range. The preceding example illustrates a sentence that satisfies the minimum term of imprisonment required by the guideline range. The court, of course, may impose a sentence at a higher point within the guideline range. For example, where the guideline range is 10-16 months, both a sentence of five months imprisonment followed by a term of supervised release with a condition requiring six months of community confinement or home detention (under subsection (d)), and a sentence of ten months imprisonment followed by a term of supervised release with a condition requiring four months of community confinement or home detention (also under subsection (d)) would be within the guideline range.''; by striking Note 6 as follows: ``6. There may be cases in which a departure from the sentencing options authorized for Zone C of the Sentencing Table (under which at least half the minimum term must be satisfied by imprisonment) to the sentencing options authorized for Zone B of the Sentencing Table (under which all or most of the minimum term may be satisfied by intermittent confinement, community confinement, or home detention instead of imprisonment) is appropriate to accomplish a specific treatment purpose. Such a departure should be considered only in cases where the court finds that (A) the defendant is an abuser of narcotics, other controlled substances, or alcohol, or suffers from a significant mental illness, and (B) the defendant's criminality is related to the treatment problem to be addressed. In determining whether such a departure is appropriate, the court should consider, among other things, (1) the likelihood that completion of the treatment program will successfully address the treatment problem, thereby reducing the risk to the public from further crimes of the defendant, and (2) whether imposition of less imprisonment than required by Zone C will increase the risk to the public from further crimes of the defendant. Examples: The following examples both assume the applicable guideline range is 12-18 months and the court departs in accordance with this application note. Under Zone C rules, the defendant must be sentenced to at least six months imprisonment. (1) The defendant is a nonviolent drug offender in Criminal History Category I and probation is not prohibited by statute. The court departs downward to impose a sentence of probation, with twelve months of intermittent confinement, community confinement, or home detention and participation in a substance abuse treatment program as conditions of probation. (2) The defendant is convicted of a Class A or B felony, so probation is prohibited by statute (see Sec. 5B1.1(b)). The court departs downward to impose a sentence of one month imprisonment, with eleven months in community confinement or home detention and participation in a substance abuse treatment program as conditions of supervised release.''; by redesignating Notes 5, 7, 8, and 9 as Notes 4, 5, 6, and 7, respectively; in Note 4 (as so redesignated) by striking ``Subsection (e)'' and inserting ``Subsection (d)''; in Note 5 (as so redesignated) by striking ``subsections (c) and (d)'' and inserting ``subsection (c)''; and in Note 7 (as so redesignated) by striking ``Subsection (f)'' and inserting ``Subsection (e)'', and by striking ``subsection (e)'' and inserting ``subsection (d)''. The Commentary to Sec. 5F1.2 captioned ``Application Notes'' is amended in Note 1 [by striking ``Electronic monitoring is an appropriate means of surveillance and ordinarily should be used in connection with home detention'' and inserting ``Electronic monitoring is an appropriate means of surveillance for home detention''; and] by striking ``may be used so long as they are as effective as electronic monitoring'' and inserting ``may be used if appropriate''. The Commentary to Sec. 5F1.2 captioned ``Background'' is amended by striking ``The Commission has concluded that the surveillance necessary for effective use of home detention ordinarily requires electronic monitoring'' and inserting ``The Commission has concluded that electronic monitoring is an appropriate means of surveillance for home detention''; and by striking ``the court should be confident that an alternative form of surveillance will be equally effective'' and inserting ``the court should be confident that an alternative form of surveillance is appropriate considering the facts and circumstances of the defendant's case''. Issues for Comment 1. The Commission requests comment on whether the zone changes contemplated by Part B of the proposed amendment should apply to all offenses, or only to certain categories of offenses. The zone changes would increase the number of offenders who are eligible under the guidelines to receive a non-incarceration sentence. Should the Commission provide a mechanism to exempt certain offenses from these zone changes? For example, should the Commission provide a mechanism to exempt public corruption, tax, and other white-collar offenses from these zone changes (e.g., to reflect a view that it would not be appropriate to increase the number of public corruption, tax, and other white-collar offenders who are eligible to receive a non-incarceration sentence)? If so, what mechanism should the Commission provide, and what offenses should be covered by it? 2. The proposed amendment would consolidate Zones B and C to create an expanded Zone B. Such an adjustment would provide probation with conditions of confinement as a sentencing option for current Zone C [[Page 92008]] defendants, an option that was not available to such defendants before. The Commission seeks comment on whether the Commission should provide additional guidance to address these new Zone B defendants. If so, what guidance should the Commission provide? 2. Tribal Issues Synopsis of Proposed Amendment: In August 2016, the Commission indicated that one of its priorities would be the ``[s]tudy of the findings and recommendations contained in the May 2016 Report issued by the Commission's Tribal Issues Advisory Group, and consideration of any amendments to the Guidelines Manual that may be appropriate in light of the information obtained from such study.'' See United States Sentencing Commission, ``Notice of Final Priorities,'' 81 FR 58004 (Aug. 24, 2016). See also Report of the Tribal Issues Advisory Group (May 16, 2016), at http://www.ussc.gov/research/research-publications/report-tribal-issues-advisory-group. The Commission is publishing this proposed amendment to inform the Commission's consideration of the issues related to this policy priority. In 2015, the Commission established the Tribal Issues Advisory Group (TIAG) as an ad hoc advisory group to the Commission. Among other things, the Commission tasked the TIAG with studying the following issues-- (A) the operation of the federal sentencing guidelines as they relate to American Indian defendants and victims and to offenses committed in Indian Country, and any viable methods for revising the guidelines to (i) improve their operation or (ii) address particular concerns of tribal communities and courts; (B) whether there are disparities in the application of the federal sentencing guidelines to American Indian defendants, and, if so, how to address them; (C) the impact of the federal sentencing guidelines on offenses committed in Indian Country in comparison with analogous offenses prosecuted in state courts and tribal courts; (D) the use of tribal court convictions in the computation of criminal history scores, risk assessment, and for other purposes; (E) how the federal sentencing guidelines should account for protection orders issued by tribal courts; and (F) any other issues relating to American Indian defendants and victims, or to offenses committed in Indian Country, that the TIAG considers appropriate. See Tribal Issues Advisory Group Charter Sec. 1(b)(3). The Commission also directed the TIAG to present a final report with its findings and recommendations, including any recommendations that the TIAG considered appropriate on potential amendments to the guidelines and policy statements. See id. Sec. 6(a). On May 16, 2016, the TIAG presented to the Commission its final report. Among the recommendations suggested in the Report, the TIAG recommends revisions to the Guidelines Manual relating to ``the use of tribal court convictions in the computation of criminal history scores'' and ``how the federal sentencing guidelines should account for protection orders issued by tribal courts.'' 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 one or both of these parts, as they are not necessarily mutually exclusive. (A) Tribal Court Convictions Pursuant to Chapter Four, Part A (Criminal History), sentences resulting from tribal court convictions are not counted for purposes of calculating criminal history points, but may be considered under Sec. 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)). See USSG Sec. 4A1.2(i). The policy statement at Sec. 4A1.3 allows for upward departures if reliable information indicates that the defendant's criminal history category substantially underrepresents the seriousness of the defendant's criminal history. Among the grounds for departure, the policy statement includes ``[p]rior sentences not used in computing the criminal history category (e.g., sentences for foreign and tribal offenses).'' USSG Sec. 4A1.3(a)(2)(A). As noted in the TIAG's report, in recent years there have been important changes in tribal criminal jurisdiction. In 2010, Congress enacted the Tribal Law and Order Act of 2010 (TLOA), Pub. L. 111-211, to address high rates of violent crime in Indian Country by improving criminal justice funding and infrastructure in tribal government, and expanding the sentencing authority of tribal court systems. In 2013, the Violence Against Women Reauthorization Act of 2013 (VAWA Reauthorization), Pub. L. 113-4, was enacted to expand the criminal jurisdiction of tribes to prosecute, sentence, and convict Indians and non-Indians who assault Indian spouses or dating partners or violate a protection order in Indian Country. It also established new assault offenses and enhanced existing assault offenses. Both Acts increased criminal jurisdiction for tribal courts, but also required more robust court procedures and provided more procedural protections for defendants. The TIAG notes in its report that ``[w]hile some tribes have exercised expanded jurisdiction under TLOA and the VAWA Reauthorization, most have not done so. Given the lack of tribal resources, and the absence of significant additional funding under TLOA and the VAWA Reauthorization to date, it is not certain that more tribes will be able to do so any time soon.'' TIAG Report, at 10-11. Members of the TIAG describe their experience with tribal courts as ``widely varied,'' expressing among their findings certain concerns about funding, perceptions of judicial bias or political influence, due process protections, and access to tribal court records. Id. at 11-12. The TIAG report highlights that ``[t]ribal courts occupy a unique and valuable place in the criminal justice system,'' while also recognizing that ``[t]ribal courts range in style''. Id. at 13. According to the TIAG, the differences in style and the concerns expressed above ``make it often difficult for a federal court to determine how to weigh tribal court convictions in rendering a sentencing decision.'' Id. at 11. It also asserts that ``taking a single approach to the consideration of tribal court convictions would be very difficult and could potentially lead to a disparate result among Indian defendants in federal courts.'' Id. at 12. Thus, the TIAG concludes that tribal convictions should not be counted for purposes of determining criminal history points pursuant to Chapter Four, Part A, and that ``the current use of USSG Sec. 4A1.3 to depart upward in individual cases continues to allow the best formulation of `sufficient but not greater than necessary' sentences for defendants, while not increasing sentencing disparities or introducing due process concerns.'' Id. Nevertheless, the TIAG recommends that the Commission amend Sec. 4A1.3 to provide guidance and a more structured analytical framework for courts to consider when determining whether a departure is appropriate based on a defendant's record of tribal court convictions. The guidance recommended by the TIAG ``collectively . . . reflect[s] important considerations for courts to balance the rights of defendants, the unique and important status of tribal courts, the need to avoid disparate sentences in light of disparate tribal court practices and circumstances, [[Page 92009]] and the goal of accurately assessing the severity of any individual defendant's criminal history.'' Id. at 13. The proposed amendment would amend the Commentary to Sec. 4A1.3 to set forth a non-exhaustive list of factors for the court to consider in determining whether, or to what extent, an upward departure based on a tribal court conviction is appropriate. Issues for comment are also provided. (B) Court Protection Orders Under the Guidelines Manual, the violation of a court protection order is a specific offense characteristic in three Chapter Two offense guidelines. See USSG Sec. Sec. 2A2.2 (Aggravated Assault), 2A6.1 (Threatening or Harassing Communications; Hoaxes; False Liens), and 2A6.2 (Stalking or Domestic Violence). The Commission has heard concerns that the term ``court protection order'' has not been defined in the guidelines and should be clarified. The TIAG notes in its report the importance of defining ``court protection orders'' in the guidelines, because-- [a] clear definition of that term will ensure that orders used for sentencing enhancements are the result of court proceedings assuring appropriate due process protections, that there is consistent identification and treatment of such orders, and that such orders issued by tribal courts receive treatment consistent with that of other issuing jurisdictions. TIAG Report, at 14. The TIAG recommends that the Commission adopt a definition of ``court protection order'' that incorporates the statutory provisions at 18 U.S.C. 2265 and 2266. Section 2266(5) provides that the term ``protection order'' includes: (A) any injunction, restraining order, or any other order issued by a civil or criminal court for the purpose of preventing violent or threatening acts or harassment against, sexual violence, or contact or communication with or physical proximity to, another person, including any temporary or final order issued by a civil or criminal court whether obtained by filing an independent action or as a pendente lite order in another proceeding so long as any civil or criminal order was issued in response to a complaint, petition, or motion filed by or on behalf of a person seeking protection; and (B) any support, child custody or visitation provisions, orders, remedies or relief issued as part of a protection order, restraining order, or injunction pursuant to State, tribal, territorial, or local law authorizing the issuance of protection orders, restraining orders, or injunctions for the protection of victims of domestic violence, sexual assault, dating violence, or stalking. 18 U.S.C. 2266(5). Section 2265(b) provides that A protection order issued by a State, tribal, or territorial court is consistent with this subsection if-- (1) such court has jurisdiction over the parties and matter under the law of such State, Indian tribe, or territory; and (2) reasonable notice and opportunity to be heard is given to the person against whom the order is sought sufficient to protect that person's right to due process. In the case of ex parte orders, notice and opportunity to be heard must be provided within the time required by State, tribal, or territorial law, and in any event within a reasonable time after the order is issued, sufficient to protect the respondent's due process rights. 18 U.S.C. 2265(b). The proposed amendment would amend the Commentary to Sec. 1B1.1 (Application Instructions) to provide a definition of court protection order derived from 18 U.S.C. 2266(5), with a provision that it must be consistent with 18 U.S.C. 2265(b). Issues for comment are also provided. (A) Tribal Court Convictions Proposed Amendment Section 4A1.3(a)(2) is amended by striking ``subsection (a)'' and inserting ``subsection (a)(1)''; and by striking ``tribal offenses'' and inserting ``tribal convictions''. The Commentary to Sec. 4A1.3 captioned ``Application Notes'' is amended in Note 2 by inserting at the end the following new paragraph (C): ``(C) Upward Departures Based on Tribal Court Convictions.--In determining whether, or to what extent, an upward departure based on a tribal court conviction is appropriate, the court shall consider the factors set forth in Sec. 4A1.3(a) above and, in addition, may consider relevant factors such as the following: (i) The defendant was represented by a lawyer, had the right to a trial by jury, and received other due process protections consistent with those provided to criminal defendants under the United States Constitution. (ii) The tribe was exercising expanded jurisdiction under the Tribal Law and Order Act of 2010, Pub. L. 111-211 (July 29, 2010), and the Violence Against Women Reauthorization Act of 2013, Pub. L. 113-4 (March 7, 2013). (iii) The tribal court conviction is not based on the same conduct that formed the basis for a conviction from another jurisdiction that receives criminal history points pursuant to this Chapter. (iv) The conviction is for an offense that otherwise would be counted under Sec. 4A1.2 (Definitions and Instructions for Computing Criminal History). [(v) At the time the defendant was sentenced, the tribal government had formally expressed a desire that convictions from its courts should be counted for purposes of computing criminal history pursuant to the Guidelines Manual.]''. Issues for Comment 1. The proposed amendment would provide a list of relevant factors that courts may consider, in addition to the factors set forth in Sec. 4A1.3(a), in determining whether an upward departure based on a tribal court conviction may be warranted. The Commission seeks comment on whether the factors provided in the proposed amendment are appropriate. Should any factors be deleted or changed? Should the Commission provide additional or different guidance? If so, what guidance should the Commission provide? In particular, the Commission seeks comment on how these factors should interact with each other and with the factors already contained in Sec. 4A1.3(a). Should the Commission provide greater emphasis on one or more factors set forth in the proposed amendment? For example, how much weight should be given to factors that address due process concerns (subdivisions (i) and (ii)) in relation to the other factors provided in the proposed amendment, such as those factors relevant to preventing unwarranted double counting (subdivisions (iii) and (iv))? Should the Commission provide that in order to consider whether an upward departure based on a tribal court conviction is appropriate, and before taking into account any other factor, the court must first determine as a threshold factor that the defendant received due process protections consistent with those provided to criminal defendants under the United States Constitution? Finally, the proposed amendment brackets the possibility of including as a factor that courts may consider in deciding whether to depart based on a tribal court conviction if, ``at the time the defendant was sentenced, the tribal government had formally expressed a desire that convictions from its courts should be counted for purposes of computing criminal history pursuant to the Guidelines Manual.'' The Commission invites broad comment on this factor and its interaction with the other factors set forth in the proposed amendment. Is this factor relevant to the court's determination of whether to depart? What are the advantages and disadvantages of including such a factor? How much weight should be given to this factor in relation to the other factors provided in the proposed amendment? What criteria should be used in determining when a tribal government has ``formally expressed a [[Page 92010]] desire'' that convictions from its courts should count? How would tribal governments notify and make available such statements? 2. Pursuant to subsection (i) of Sec. 4A1.2 (Definitions and Instructions for Computing Criminal History), sentences resulting from tribal court convictions are not counted for purposes of calculating criminal history points, but may be considered under Sec. 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)). As stated above, the policy statement at Sec. 4A1.3 allows for upward departures if reliable information indicates that the defendant's criminal history category substantially underrepresents the seriousness of the defendant's criminal history. The Commission invites comment on whether the Commission should consider changing how the guidelines account for sentences resulting from tribal court convictions for purposes of determining criminal history points pursuant to Chapter Four, Part A (Criminal History). Should the Commission consider amending Sec. 4A1.2(i) and, if so, how? For example, should the guidelines treat sentences resulting from tribal court convictions like other sentences imposed for federal, state, and local offenses that may be used to compute criminal history points? Should the Commission treat sentences resulting from tribal court convictions more akin to military sentences and provide a distinction between certain types of tribal courts? Is there a different approach the Commission should follow in addressing the use of tribal court convictions in the computation of criminal history scores? (B) Court Protection Orders Proposed Amendment The Commentary to Sec. 1B1.1 captioned ``Application Notes'' is amended in Note 1 by redesignating paragraphs (D) through (L) as paragraphs (E) through (M), respectively; and by inserting the following new paragraph (D): ``(D) `court protection order' means `protection order' as defined by 18 U.S.C. 2266(5) and consistent with 18 U.S.C. 2265(b).''. Issues for Comment 1. The proposed amendment would include in the Commentary to Sec. 1B1.1 (Application Instructions) a definition of court protection order derived from 18 U.S.C. 2266(5), that is consistent with 18 U.S.C. 2265(b). Is this definition appropriate? If not, what definition, if any, should the Commission provide? 2. The Commission has heard concerns about cases in which the offense involved the violation of a court protection order. As stated above, the violation of a court protection order is a specific offense characteristic in three Chapter Two offense guidelines (see Sec. Sec. 2A2.2, 2A6.1, and 2A6.2). However, other guidelines in which the offense might involve a violation of a court protection order do not provide for such an enhancement. The Commission seeks comment on whether the Guidelines Manual should provide higher penalties for cases involving the violation of a court protection order. How, if at all, should the Commission amend the guidelines to provide appropriate penalties in such cases? For example, should the Commission address this factor throughout the guidelines by establishing a Chapter Three adjustment if the offense involved the violation of a court protection order? If so, how should this provision interact with other provisions in the Guidelines Manual that may involve the violation of an order, such as Sec. 2B1.1(b)(9)(C) (``If the offense involved . . . (C) a violation of any prior specific judicial or administrative order, injunction, decree, or process not addressed elsewhere in the guidelines . . . increase by 2 levels.''), Sec. 2J1.1 (Contempt), and Sec. 3C1.1 (Obstructing or Impeding the Administration of Justice)? Alternatively, should the Commission identify and amend particular offense guidelines in Chapter Two to include the violation of a court protection order as a specific offense characteristic? If so, which guidelines should be amended to include such a new specific offense characteristic? For example, should the Commission include such a new specific offense characteristic in the guidelines related to offenses against the person, sexual offenses, and offenses that create a risk of injury? Should the Commission include such a new specific offense characteristic in offenses that caused a financial harm, such as identity theft? 3. Youthful Offenders Synopsis of Proposed Amendment: This proposed amendment is a result of the Commission's study of the treatment of youthful offenders under the Guidelines Manual. See United States Sentencing Commission, ``Notice of Final Priorities,'' 81 FR 5280004 (Aug. 24, 2016). This policy priority stemmed from recommendations about the treatment of youthful offenders contained in the May 2016 Report issued by the Commission's Tribal Issues Advisory Group. See Report of the Tribal Issues Advisory Group (May 16, 2016), at http://www.ussc.gov/research/research-publications/report-tribal-issues-advisory-group. Pursuant to Chapter Four, Part A (Criminal History), sentences for offenses committed prior to age eighteen are considered in the calculation of the defendant's criminal history score. The guidelines distinguish between an ``adult sentence'' in which the defendant committed the offense before age eighteen and was convicted as an adult, and a ``juvenile sentence'' resulting from a juvenile adjudication. Under Sec. 4A1.2 (Definitions and Instructions for Computing Criminal History), if the defendant was convicted as an adult for an offense committed before age eighteen and received a sentence exceeding one year and one month, the sentence is counted so long as it was imposed, or resulted in the defendant being incarcerated, within fifteen years of the defendant's commencement of the instant offense. See USSG Sec. 4A1.2(d), (e). All other sentences for offenses committed prior to age eighteen are counted only if the sentence was imposed, or resulted in the defendant being incarcerated, within five years of the defendant's commencement of the instant offense. See USSG Sec. 4A1.2(d). The Commentary to Sec. 4A1.2 provides that, to avoid disparities from jurisdiction to jurisdiction in the age at which a defendant is considered a ``juvenile,'' the rules set forth in Sec. 4A1.2(d) apply to all offenses committed prior to age eighteen. Juvenile adjudications are addressed in two other places in the guidelines. First, Sec. 4A1.2(c)(2) provides a list of certain offenses that are ``never counted'' for purposes of the criminal history score, including ``juvenile status offenses and truancy.'' Second, Sec. 4A1.2(f) provides that adult diversionary dispositions resulting from a finding or guilt, or a nolo contendere, are counted even if a conviction is not formally entered. However, the same provision further provides that ``diversion from juvenile court is not counted.'' The proposed amendment amends Sec. 4A1.2(d) to exclude juvenile sentences from being considered in the calculation of the defendant's criminal history score. The proposed amendment also amends the Commentary to Sec. 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)) to provide an example of an instance in which a downward departure from the defendant's criminal history may be warranted. Specifically, the proposed amendment provides that [[Page 92011]] a downward departure may be warranted if the defendant had an adult conviction for an offense committed prior to age eighteen counted in the criminal history score that would have been classified as a juvenile adjudication (and therefore not counted) if the laws of the jurisdiction in which the defendant was convicted did not categorically consider offenders below the age of eighteen years as ``adults.'' Issues for comment are provided. Proposed Amendment The Commentary to Sec. 4A1.1 captioned ``Application Notes'' is amended in Note 2 by striking ``An adult or juvenile sentence'' and inserting ``An adult sentence''; and in Note 3 by striking ``An adult or juvenile sentence'' and inserting ``An adult sentence''. Section 4A1.2 is amended-- [in subsection (c)(2) by striking ``Juvenile status offenses and truancy'';] in subsection (d) by striking ``or juvenile'' both places such term appears in paragraph (2), and by inserting at the end the following new paragraph (3): ''(3) Sentences resulting from juvenile adjudications are not counted.''; [and in subsection (f) by striking: ``, except that diversion from juvenile court is not counted'']. The Commentary to Sec. 4A1.2 captioned ``Application Notes'' is amended in Note 7 by striking the following: ``Section 4A1.2(d) covers offenses committed prior to age eighteen. Attempting to count every juvenile adjudication would have the potential for creating large disparities due to the differential availability of records. Therefore, for offenses committed prior to age eighteen, only those that resulted in adult sentences of imprisonment exceeding one year and one month, or resulted in imposition of an adult or juvenile sentence or release from confinement on that sentence within five years of the defendant's commencement of the instant offense are counted. To avoid disparities from jurisdiction to jurisdiction in the age at which a defendant is considered a `juvenile,' this provision applies to all offenses committed prior to age eighteen.'', and inserting the following: ``Section 4A1.2(d) applies only when the defendant was convicted as an adult for an offense committed prior to age eighteen. This provision also sets forth the time period within which such prior adult sentences are counted.''. The Commentary to Sec. 4A1.3 captioned ``Application Notes'' is amended in Note 3 by striking the following: '' Downward Departures.--A downward departure from the defendant's criminal history category may be warranted if, for example, the defendant had two minor misdemeanor convictions close to ten years prior to the instant offense and no other evidence of prior criminal behavior in the intervening period. A departure below the lower limit of the applicable guideline range for Criminal History Category I is prohibited under subsection (b)(2)(B), due to the fact that the lower limit of the guideline range for Criminal History Category I is set for a first offender with the lowest risk of recidivism.'', and inserting the following: '' Downward Departures.-- (A) Examples.--A downward departure from the defendant's criminal history category may be warranted based on any of the following circumstances: (i) The defendant had two minor misdemeanor convictions close to ten years prior to the instant offense and no other evidence of prior criminal behavior in the intervening period. (ii) The defendant had an adult conviction for an offense committed prior to age eighteen counted in the criminal history score that would have been classified as a juvenile adjudication (and therefore not counted) if the laws of the jurisdiction in which the defendant was convicted did not categorically consider offenders below the age of eighteen years as `adults.' (B) Downward Departures from Criminal History Category I.--A departure below the lower limit of the applicable guideline range for Criminal History Category I is prohibited under subsection (b)(2)(A), due to the fact that the lower limit of the guideline range for Criminal History Category I is set for a first offender with the lowest risk of recidivism.''. Issues for Comment 1. The Commission seeks comment on whether the Commission should consider changing how the guidelines account for juvenile sentences for purposes of determining the defendant's criminal history pursuant to Chapter Four, Part A (Criminal History). Should the Commission amend the guidelines to provide that sentences resulting from juvenile adjudications shall not be counted in the criminal history score? Alternatively, should the Commission amend the guidelines to count juvenile sentences only if the offense involved violence or was an otherwise serious offense? Should the Commission provide instead that sentences for offenses committed prior to age eighteen are not to be counted in the criminal history score, regardless of whether the sentence was classified as a ``juvenile'' or ``adult'' sentence? 2. If the Commission were to promulgate the proposed amendment, should the Commission provide that juvenile sentences may be considered for purposes of an upward departure under Sec. 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement))? If so, should the Commission limit the consideration of such departures to certain offenses? For example, should the Commission provide that an upward departure under Sec. 4A1.3 may be warranted if the juvenile sentence was imposed for an offense involving violence or that was an otherwise serious offense? 3. The proposed amendment would provide that a departure may be warranted in cases in which the defendant had an adult conviction for an offense committed prior to age eighteen counted in the criminal history score that would have been classified as a juvenile adjudication (and therefore not counted) if the laws of the jurisdiction in which the defendant was convicted did not categorically consider offenders below the age of eighteen years as ``adults.'' Should the Commission provide that a downward departure may be warranted for such cases? How would courts determine that the defendant would have received a juvenile adjudication if the laws of the jurisdiction in which the defendant was convicted did not categorically consider offenders below the age of eighteen years as ``adults''? Should the Commission provide specific examples or guidance for determining whether a downward departure is warranted in such cases? If so, what guidance or examples should the Commission provide? Should the Commission use a different approach to address these cases and, if so, what should that approach be? Are there other circumstances that the Commission should identify as an appropriate basis for a downward departure? 4. Criminal History Issues Synopsis of Proposed Amendment: This proposed amendment is a result of the Commission's work in examining Chapter Four, Part A (Criminal History) ``to (A) study the treatment of revocation sentences under Sec. 4A1.2(k), and (B) consider a possible amendment of Sec. 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)) to account for instances in which the time actually served was substantially less than the length of the sentence imposed for a [[Page 92012]] conviction counted under the Guidelines Manual.'' See United States Sentencing Commission, ``Notice of Final Priorities,'' 81 FR 58004 (Aug. 24, 2016). (A) Treatment of Revocation Sentences Under Sec. 4A1.2(k) Pursuant to Chapter Four, Part A (Criminal History), revocations of probation, parole, supervised release, special parole, or mandatory release are counted for purposes of calculating criminal history points. Section 4A1.2(k) provides that a sentence of imprisonment given upon revocation should be added to the original sentence of imprisonment, if any, and the total should be counted as if it were one sentence for purposes of computing criminal history points under Sec. 4A1.1(a), (b), or (c). The Commentary to Sec. 4A1.2 provides that where a revocation applies to multiple sentences, and such sentences are counted separately under Sec. 4A1.2(a)(2), the term of imprisonment imposed upon revocation is added to the sentence that will result in the greatest increase in criminal history points. See USSG Sec. 4A1.2, comment. (n.11). Section 4A1.2(k)(2) further provides that aggregating the revocation sentence to the original sentence of imprisonment may affect the time period under which certain sentences are counted under Chapter Four. See USSG Sec. 4A1.2(d)(2) and (e). The resulting total of adding both sentences could affect the applicable time period by increasing the length of a defendant's term of imprisonment or by changing the defendant's date of release from imprisonment. Part A of the proposed amendment would amend Sec. 4A1.2(k) to provide that revocations of probation, parole, supervised release, special parole, or mandatory release are not to be counted for purposes of calculating criminal history points. It would also state that such revocation sentences may be considered under Sec. 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)). Issues for comment are also provided. (B) Departure Based on Substantial Difference Between Time-Served and Sentence Imposed Section 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)) provides for upward and downward departures where the defendant's criminal history category substantially understates or substantially overstates the seriousness of the defendant's criminal history or the likelihood of recidivism. The Commentary to Sec. 4A1.3 provides guidance in determining when a downward departure from the defendant's criminal history may be warranted. Part B of the proposed amendment would amend the Commentary to Sec. 4A1.3 to provide that a downward departure from the defendant's criminal history may warranted in a case in which the period of imprisonment actually served by the defendant was substantially less than the length of the sentence imposed for a conviction counted in the criminal history score. An issue for comment is also provided. (A) Treatment of Revocation Sentences Under Sec. 4A1.2(k) Proposed Amendment The Commentary to Sec. 4A1.1 captioned ``Application Notes'' is amended in Note 1 by striking ``Where a prior sentence of imprisonment resulted from a revocation of probation, parole, or a similar form of release, see Sec. 4A1.2(k).''; and in Note 2 by striking ``Where a prior sentence of imprisonment resulted from a revocation of probation, parole, or a similar form of release, see Sec. 4A1.2(k).''. Section 4A1.2(k) is amended by striking paragraphs (1) and (2) as follows: `` (1) In the case of a prior revocation of probation, parole, supervised release, special parole, or mandatory release, add the original term of imprisonment to any term of imprisonment imposed upon revocation. The resulting total is used to compute the criminal history points for Sec. 4A1.1(a), (b), or (c), as applicable. (2) Revocation of probation, parole, supervised release, special parole, or mandatory release may affect the time period under which certain sentences are counted as provided in Sec. 4A1.2(d)(2) and (e). For the purposes of determining the applicable time period, use the following: (A) in the case of an adult term of imprisonment totaling more than one year and one month, the date of last release from incarceration on such sentence (see Sec. 4A1.2(e)(1)); (B) in the case of any other confinement sentence for an offense committed prior to the defendant's eighteenth birthday, the date of the defendant's last release from confinement on such sentence (see Sec. 4A1.2(d)(2)(A)); and (C) in any other case, the date of the original sentence (see Sec. 4A1.2(d)(2)(B) and (e)(2)).'', and inserting the following: `` Sentences upon revocation of probation, parole, supervised release, special parole, or mandatory release are not counted, but may be considered under Sec. 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)).''. The Commentary to Sec. 4A1.2 captioned ``Application Notes'' is amended by striking Note 11 as follows: ``11. Revocations to be Considered.--Section 4A1.2(k) covers revocations of probation and other conditional sentences where the original term of imprisonment imposed, if any, did not exceed one year and one month. Rather than count the original sentence and the resentence after revocation as separate sentences, the sentence given upon revocation should be added to the original sentence of imprisonment, if any, and the total should be counted as if it were one sentence. By this approach, no more than three points will be assessed for a single conviction, even if probation or conditional release was subsequently revoked. If the sentence originally imposed, the sentence imposed upon revocation, or the total of both sentences exceeded one year and one month, the maximum three points would be assigned. If, however, at the time of revocation another sentence was imposed for a new criminal conviction, that conviction would be computed separately from the sentence imposed for the revocation. Where a revocation applies to multiple sentences, and such sentences are counted separately under Sec. 4A1.2(a)(2), add the term of imprisonment imposed upon revocation to the sentence that will result in the greatest increase in criminal history points. Example: A defendant was serving two probationary sentences, each counted separately under Sec. 4A1.2(a)(2); probation was revoked on both sentences as a result of the same violation conduct; and the defendant was sentenced to a total of 45 days of imprisonment. If one sentence had been a `straight' probationary sentence and the other had been a probationary sentence that had required service of 15 days of imprisonment, the revocation term of imprisonment (45 days) would be added to the probationary sentence that had the 15-day term of imprisonment. This would result in a total of 2 criminal history points under Sec. 4A1.1(b) (for the combined 60-day term of imprisonment) and 1 criminal history point under Sec. 4A1.1(c) (for the other probationary sentence).''; and by redesignating Note 12 as Note 11. Issues for Comment 1. The Commission invites comment on whether the Commission should consider changing how the guidelines currently account for revocations of [[Page 92013]] probation, parole, supervised release, special parole, or mandatory release for purposes of determining criminal history points pursuant to Chapter Four, Part A (Criminal History). Should the Commission consider amending Sec. 4A1.2(k) and, if so, how? For example, should revocation sentences not be counted in determining the criminal history score, as provided in the proposed amendment? Should the Commission provide instead a different approach for counting revocation sentences, such as counting the original sentence and the revocation sentences as separate sentences instead of aggregating them? If the Commission were to provide a different approach for counting revocation sentences, what should that different approach be? 2. The proposed amendment would amend Sec. 4A1.2(k) to provide that revocations of probation, parole, supervised release, special parole, or mandatory release are not to be counted for purposes of calculating criminal history points, but may be considered under Sec. 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)). The policy statement at Sec. 4A1.3 provides upward departures for cases in which reliable information indicates that the defendant's criminal history category substantially underrepresents the seriousness of the defendant's criminal history. The Commission seeks comment on whether revocation sentences, if not counted for purposes of calculating criminal history points, may be considered for a departure under Sec. 4A1.3. Should the Commission provide specific guidance for determining whether an upward departure based on a revocation sentence may be warranted? If so, what specific guidance should the Commission provide? 3. The Commission recently promulgated an amendment to the illegal reentry guideline at Sec. 2L1.2 (Unlawfully Entering or Remaining in the United States) that, among other things, revised the specific offense characteristics to account for prior convictions primarily through a sentence-imposed approach rather than through a type of offense approach (i.e., ``categorical approach''). See USSG App. C, amendment 802 (effective November 1, 2016). The amendment retained in the Commentary to Sec. 2L1.2 a definition of ``sentence imposed'' that includes as part of the length of the sentence ``any term of imprisonment given upon revocation of probation, parole, or supervised release.'' USSG Sec. 2L1.2, comment. (n.2). If the Commission were to promulgate the proposed amendment changing how the guidelines account for revocation sentences for purposes of determining criminal history points, should the Commission revise the definition of ``sentence imposed'' at Sec. 2L1.2 and, if so, how? How, if at all, should the Commission revise the ``sentence imposed'' definition to address any term of imprisonment given upon a revocation sentence? Should the Commission provide that revocation sentences should not be considered in determining the length of the ``sentence imposed'' for purposes of applying the enhancements at Sec. 2L1.2? (B) Departure Based on Substantial Difference Between Time-Served and Sentence Imposed Proposed Amendment The Commentary to Sec. 4A1.3 captioned ``Application Notes'' is amended in Note 3 by striking the following: '' Downward Departures.--A downward departure from the defendant's criminal history category may be warranted if, for example, the defendant had two minor misdemeanor convictions close to ten years prior to the instant offense and no other evidence of prior criminal behavior in the intervening period. A departure below the lower limit of the applicable guideline range for Criminal History Category I is prohibited under subsection (b)(2)(B), due to the fact that the lower limit of the guideline range for Criminal History Category I is set for a first offender with the lowest risk of recidivism.'', and inserting the following: '' Downward Departures.-- (A) Examples.--A downward departure from the defendant's criminal history category may be warranted based on any of the following circumstances: (i) The defendant had two minor misdemeanor convictions close to ten years prior to the instant offense and no other evidence of prior criminal behavior in the intervening period. (ii) The period of imprisonment actually served by the defendant was substantially less than the length of the sentence imposed for a conviction counted in the criminal history score. (B) Downward Departures from Criminal History Category I.--A departure below the lower limit of the applicable guideline range for Criminal History Category I is prohibited under subsection (b)(2)(A), due to the fact that the lower limit of the guideline range for Criminal History Category I is set for a first offender with the lowest risk of recidivism.''. Issue for Comment 1. Part B of the proposed amendment would amend the Commentary to Sec. 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)) to provide that a downward departure from the defendant's criminal history may be warranted in a case in which the period of imprisonment actually served by the defendant was substantially less than the length of the sentence imposed for a conviction counted in the criminal history score. Should the Commission exclude the consideration of such a downward departure in cases in which the time actually served by the defendant was substantially less than the length of the sentence imposed due to reasons unrelated to the facts and circumstances of the defendant's case, e.g., in order to minimize overcrowding or due to state budget concerns? 5. Bipartisan Budget Act Synopsis of Proposed Amendment: This 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 disabled]) of the Social Security Act (42 U.S.C. 408, 1011, and 1383a, respectively). (A) Conspiracy To Commit Social Security Fraud The Bipartisan Budget Act of 2015 added new subdivisions prohibiting conspiracy to commit fraud for substantive offenses already contained in the three statutes (42 U.S.C. 408, 1011, and 1383a). 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. The three amended statutes are currently referenced in Appendix A (Statutory Index) to Sec. 2B1.1 (Theft, Property Destruction, and Fraud). The [[Page 92014]] proposed amendment would amend Appendix A 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)). An issue for comment is provided. (B) Increased Penalties for Certain Individuals Violating Positions of Trust 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 . . . . A person who meets this requirement 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 proposed amendment would amend Sec. 2B1.1 to address cases in which the defendant was convicted under 42 U.S.C. 408(a), Sec. 1011(a), or Sec. 1383a(a) and the statutory maximum term of ten years' imprisonment applies. It provides an enhancement of [4][2] levels and a minimum offense level of [14][12] for such cases. It also adds Commentary specifying whether an adjustment under Sec. 3B1.3 (Abuse of Position of Trust or Use of Special Skill) applies -- bracketing two possibilities: if the enhancement applies, the adjustment does not apply; and if the enhancement applies, the adjustment is not precluded from applying. Issues for comment are also provided. (A) Conspiracy to Commit Social Security Fraud Proposed Amendment Appendix A (Statutory Index) is amended in the line referenced to 42 U.S.C. 408 by inserting ``, 2X1.1'' at the end; in the line referenced to 42 U.S.C. 1011 by inserting ``, 2X1.1'' at the end; and in the line referenced to 42 U.S.C. 1383a(a) by inserting ``, 2X1.1'' at the end. Issue for Comment 1. Part A 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? Should the Commission reference these new offenses to other guidelines instead of, or in addition to, the guidelines covered by the proposed amendment? (B) Increased Penalties for Certain Individuals Violating Positions of Trust Proposed Amendment Section 2B1.1(b) is amended by redesignating paragraphs (13) through (19) as paragraphs (14) through (20), respectively, and by inserting the following new paragraph (13): ``(13) If the defendant was convicted under 42 U.S.C. 408(a), Sec. 1011(a), or Sec. 1383a(a) and the statutory maximum term of ten years' imprisonment applies, increase by [4][2] levels. If the resulting offense level is less than [14][12], increase to level [14][12].''. The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is amended by redesignating Notes 11 through 20 as Notes 12 through 21, respectively, and by inserting the following new Note 11: ``11. Interaction of Subsection (b)(13) and Sec. 3B1.3.--[If subsection (b)(13) applies, do not apply Sec. 3B1.3 (Abuse of Position of Trust or Use of Special Skill).][Application of subsection (b)(13) does not preclude a defendant from consideration for an adjustment under Sec. 3B1.3 (Abuse of Position of Trust or Use of Special Skill).]''. Issues for Comment 1. The Bipartisan Budget Act of 2015 amended sections 408, 1011, and 1383a of Title 42 to include a provision in all three statutes increasing the statutory maximum term of imprisonment from five years to ten years for certain persons who commit fraud offenses under subsection (a) of the three statutes. The Act identifies 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 . . . . The Commission seeks comment on how, if at all, the guidelines should be amended to address cases in which the offense of conviction is 42 U.S.C. 408, Sec. 1011, or Sec. 1383a, and the statutory maximum term of ten years' imprisonment applies because the defendant was a person described in 42 U.S.C. 408(a), Sec. 1011(a), or Sec. 1383a(a). Are these cases adequately addressed by existing provisions in the guidelines, such as the adjustment in Sec. 3B1.3 (Abuse of Position of Trust or Use of Special Skill)? If so, as an alternative to the proposed amendment, should the Commission amend Sec. 2B1.1 only to provide an application note that expressly provides that, for a defendant subject to the ten years' statutory maximum in such cases, an adjustment under Sec. 3B1.3 ordinarily would apply? If not, how should the Commission amend the guidelines to address these cases? 2. The proposed amendment would amend Sec. 2B1.1 to provide an enhancement and a minimum offense level for cases in which the defendant was convicted under 42 U.S.C. 408(a), Sec. 1011(a), or Sec. 1383a(a) and the statutory maximum term of ten years' imprisonment applies because the defendant was a person described in 42 U.S.C. 408(a), Sec. 1011(a), or Sec. 1383a(a). However, there may be cases in which a defendant, who meets the criteria set forth for the new statutory maximum term of ten years' imprisonment, is convicted under a general fraud statute (e.g., 18 U.S.C. 1341) for an offense involving conduct described in 42 U.S.C. 408(a), Sec. 1011(a), or Sec. 1383a(a). The Commission seeks comment on whether the Commission should instead amend Sec. 2B1.1 to provide a general specific offense characteristic for such cases. For example, should the Commission provide an enhancement for cases in which the offense involved conduct described in 42 U.S.C. 408(a), Sec. 1011(a), or Sec. 1383a(a) and the defendant is a person ``who receives a fee or other income for services performed in connection with any determination with respect to benefits [covered by those statutory provisions] (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''? If so, how many levels would be appropriate for such an enhancement? How should [[Page 92015]] such an enhancement interact with the existing enhancements at Sec. 2B1.1 and the Chapter Three adjustment at Sec. 3B1.3 (Abuse of Position of Trust or Use of Special Skill)? 6. Acceptance of Responsibility Synopsis of Proposed Amendment: In August 2016, the Commission indicated that one of its priorities would be the consideration of miscellaneous guideline application issues, ``including possible consideration of whether a defendant's denial of relevant conduct should be considered in determining whether a defendant has accepted responsibility for purposes of Sec. 3E1.1.'' See United States Sentencing Commission, ``Notice of Final Priorities,'' 81 FR 58004 (Aug. 24, 2016). Section 3E1.1 (Acceptance of Responsibility) provides for a 2-level reduction for a defendant who clearly demonstrates acceptance of responsibility. Application Note 1(A) of Sec. 3E1.1 provides as one of the appropriate considerations in determining whether a defendant ``clearly demonstrate[d] acceptance of responsibility'' the following: truthfully admitting the conduct comprising the offense(s) of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which the defendant is accountable under Sec. 1B1.3 (Relevant Conduct). Note that a defendant is not required to volunteer, or affirmatively admit, relevant conduct beyond the offense of conviction in order to obtain a reduction under subsection (a). A defendant may remain silent in respect to relevant conduct beyond the offense of conviction without affecting his ability to obtain a reduction under this subsection. However, a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility; In addition, Application Note 3 provides further guidance on evidence that might demonstrate acceptance of responsibility, as follows: Entry of a plea of guilty prior to the commencement of trial combined with truthfully admitting the conduct comprising the offense of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which he is accountable under Sec. 1B1.3 (Relevant Conduct) (see Application Note 1(A)), will constitute significant evidence of acceptance of responsibility for the purposes of subsection (a). However, this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility. A defendant who enters a guilty plea is not entitled to an adjustment under this section as a matter of right. The Commission has heard concerns that the Commentary to Sec. 3E1.1 (particularly the provisions cited above) encourages courts to deny a reduction in sentence when a defendant pleads guilty and accepts responsibility for the offense of conviction, but unsuccessfully challenges the presentence report's assessments of relevant conduct. These commenters suggest this has a chilling effect because defendants are concerned such objections may jeopardize their eligibility for a reduction for acceptance of responsibility. The proposed amendment amends the Commentary to Sec. 3E1.1 to revise how the defendant's challenge of relevant conduct should be considered in determining whether the defendant has accepted responsibility for purposes of the guideline. Specifically, it would amend Application Note 1(A) to delete the sentence that states ``a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility.'' The proposed amendment would instead provide that a defendant who makes a non-frivolous challenge to relevant conduct is not precluded from consideration for a reduction under Sec. 3E1.1(a). An issue for comment is also provided. Proposed Amendment The Commentary to Sec. 3E1.1 captioned ``Application Notes'' is amended in Note 1(A) by striking ``However, a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility'' and inserting the following: ``In addition, a defendant who makes a non-frivolous challenge to relevant conduct is not precluded from consideration for a reduction under subsection (a)''. Issue for Comment 1. The Commission seeks comment on whether the Commission should amend the Commentary to Sec. 3E1.1 (Acceptance of Responsibility) to change or clarify how a defendant's challenge to relevant conduct should be considered in determining whether a defendant has accepted responsibility for purposes of Sec. 3E1.1? If so, what changes should the Commission make to Sec. 3E1.1? For example, the proposed amendment would provide that a defendant who makes a non-frivolous challenge to relevant conduct is not precluded from consideration for a reduction under Sec. 3E1.1(a). What additional guidance, if any, should the Commission provide on what constitutes ``a non-frivolous challenge to relevant conduct''? Should such challenges include informal challenges to relevant conduct during the sentencing process, whether or not the issues challenged are determinative to the applicable guideline range? Should the Commission broaden the proposed provision to include other sentencing considerations, such as departures or variances? Should the Commission instead remove from Sec. 3E1.1 all references to relevant conduct for which the defendant is accountable under Sec. 1B1.3, and reference only the elements of the offense of conviction? 7. Miscellaneous Synopsis of Proposed Amendment: This proposed amendment responds to recently enacted legislation and miscellaneous guideline issues. The proposed amendment contains four parts (Parts A through D). The Commission is considering whether to promulgate any or all of these parts, as they are not necessarily mutually exclusive. They are as follows-- Part A responds to the Transnational Drug Trafficking Act of 2015, Pub. L. 114-154 (May 16, 2016), by amending Sec. 2B5.3 (Criminal Infringement of Copyright or Trademark). Part B responds to the International Megan's Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders Act, Pub. L. 114-119 (Feb. 8, 2016), by amending Sec. 2A3.5 (Failure to Register as a Sex Offender), Sec. 2A3.6 (Aggravated Offenses Relating to Registration as a Sex Offender), and Appendix A (Statutory Index). Part C responds to the Frank R. Lautenberg Chemical Safety for the 21st Century Act, Pub. L. 114-182 (June 22, 2016), by amending Appendix A (Statutory Index). Part D amends Sec. 2G1.3 (Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Sex Trafficking of Children; Use of Interstate Facilities to Transport Information about a Minor) to clarify how the use of a computer enhancement at subsection (b)(3) interacts with its correlating commentary. (A) Transnational Drug Trafficking Act of 2015 Synopsis of Proposed Amendment: Part A of the proposed amendment responds to the Transnational Drug Trafficking Act of 2015, Pub. L. 114-154 [[Page 92016]] (May 16, 2016). The primary purpose of the Act is to enable the Department of Justice to target extraterritorial drug trafficking activity. Among other things, the Act clarified the mens rea requirement for offenses related to trafficking in counterfeit drugs, without changing the statutory penalties associated with such offenses. The Act amended 18 U.S.C. 2230 (Trafficking in Counterfeit Goods or Services), which prohibits trafficking in a range of goods and services, including counterfeit drugs. The amended statute is currently referenced in Appendix A (Statutory Index) of the Guidelines Manual to Sec. 2B5.3 (Criminal Infringement of Copyright or Trademark). In particular, the Act made changes relating to counterfeit drugs. First, the Act amended the penalty provision at section 2320, replacing the term ``counterfeit drug'' with the phrase ``drug that uses a counterfeit mark on or in connection with the drug.'' Second, the Act revised section 2320(f)(6) to define only the term ``drug'' instead of ``counterfeit drug.'' The amended provision defines ``drug'' as ``a drug, as defined in section 201 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321).'' The Act did not amend the definition of ``counterfeit mark'' contained in section 2230(f)(1), which provides that-- the term ``counterfeit mark'' means-- (A) a spurious mark-- (i) that is used in connection with trafficking in any goods, services, labels, patches, stickers, wrappers, badges, emblems, medallions, charms, boxes, containers, cans, cases, hangtags, documentation, or packaging of any type or nature; (ii) that is identical with, or substantially indistinguishable from, a mark registered on the principal register in the United States Patent and Trademark Office and in use, whether or not the defendant knew such mark was so registered; (iii) that is applied to or used in connection with the goods or services for which the mark is registered with the United States Patent and Trademark Office, or is applied to or consists of a label, patch, sticker, wrapper, badge, emblem, medallion, charm, box, container, can, case, hangtag, documentation, or packaging of any type or nature that is designed, marketed, or otherwise intended to be used on or in connection with the goods or services for which the mark is registered in the United States Patent and Trademark Office; and (iv) the use of which is likely to cause confusion, to cause mistake, or to deceive; or (B) a spurious designation that is identical with, or substantially indistinguishable from, a designation as to which the remedies of the Lanham Act are made available by reason of section 220506 of title 36 . . . . Part A of the proposed amendment amends Sec. 2B5.3(b)(5) to replace the term ``counterfeit drug'' with ``drug that uses a counterfeit mark on or in connection with the drug.'' The proposed amendment would also amend the Commentary to Sec. 2B5.3 to delete the ``counterfeit drug'' definition and provide that ``drug'' and ``counterfeit mark'' have the meaning given those terms in 18 U.S.C. 2320(f). Proposed Amendment Section 2B5.3(b)(5) is amended by striking ``counterfeit drug'' and inserting ``drug that uses a counterfeit mark on or in connection with the drug''. The Commentary to Sec. 2B5.3 captioned ``Application Notes'' is amended in Note 1 by striking the third undesignated paragraph as follows: ```Counterfeit drug' has the meaning given that term in 18 U.S.C. 2320(f)(6).'', and by inserting after the paragraph that begins ```Counterfeit military good or service' has the meaning'' the following new paragraph: ```Drug' and `counterfeit mark' have the meaning given those terms in 18 U.S.C. 2320(f).''. (B) International Megan's Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders Synopsis of Proposed Amendment: Part B of the proposed amendment responds to the International Megan's Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders Act (``International Megan's Law''), Pub. L. 114-119 (Feb. 8, 2016). The Act added a new notification requirement to 42 U.S.C. 16914 (Information required in [sex offender] registration). Section 16914 states that sex offenders who are required to register under the Sex Offender Registration and Notification Act (SORNA) must provide certain information for inclusion in the sex offender registry. Those provisions include the offender's name, Social Security number, address of all residences, name and address where the offender is an employee, the name and address where the offender is a student, license plate number and description of any vehicle. The International Megan's Law added as an additional requirement that the sex offender must provide ``information relating to intended travel of the sex offender outside of the United States, including any anticipated dates and places of departure, arrival or return, carrier and flight numbers for air travel, destination country and address or other contact information therein, means and purpose of travel, and any other itinerary or other travel-related information required by the Attorney General.'' The International Megan's Law also added a new criminal offense at 18 U.S.C. 2250(b) (Failure to register). The new subsection (b) provides that whoever is required to register under SORNA who knowingly fails to provide the above described information required by SORNA relating to intended travel in foreign commerce and who engages or attempts to engage in the intended travel, is subject to a 10 year statutory maximum penalty. Section 2250 offenses are referenced in Appendix A (Statutory Index) to Sec. 2A3.5 (Failure to Register as a Sex Offender). Part B of the proposed amendment amends Appendix A (Statutory Index) so the new offenses at 18 U.S.C. 2250(b) are referenced to Sec. 2A3.5. The proposed amendment also brackets the possibility of adding a new application note to the Commentary to Sec. 2A3.5 providing that for purposes of Sec. 2A3.5(b), a defendant shall be deemed to be in a ``failure to register status'' during the period in which the defendant engaged in conduct described in 18 U.S.C. 2250(a) or (b). Finally, Part B makes clerical changes to Sec. 2A3.6 (Aggravated Offenses Relating to Registration as a Sex Offender) to reflect the redesignation of 18 U.S.C.Sec. 2250(c) by the International Megan's Law. Proposed Amendment The Commentary to Sec. 2A3.5 captioned ``Statutory Provisions'' is amended by striking ``Sec. 2250(a)'' and inserting ``Sec. 2250(a), (b)''. [The Commentary to Sec. 2A3.5 captioned ``Application Notes'' is amended by redesignating Note 2 as Note 3, and by inserting the following new Note 2: ``2. Application of Subsection (b)(1).--For purposes of subsection (b)(1), a defendant shall be deemed to be in a `failure to register status' during the period in which the defendant engaged in conduct described in 18 U.S.C. 2250(a) or (b).''.] Section 2A3.6(a) is amended by striking ``Sec. 2250(c)'' and inserting ``Sec. 2250(d)''. The Commentary to Sec. 2A3.6 captioned ``Statutory Provisions'' is amended by striking ``2250(c)'' and inserting ``2250(d)''. [[Page 92017]] The Commentary to Sec. 2A3.6 captioned ``Statutory provisions is amended-- in Note 1 by striking ``Section 2250(c)'' and inserting ``Section 2250(d)'', and by inserting after ``18 U.S.C. 2250(a)'' the following: ``or (b)''; in Note 3 by striking ``Sec. 2250(c)'' and inserting ``Sec. 2250(d)''; and in Note 4 by striking ``Sec. 2250(c)'' and inserting ``Sec. 2250(d)''. Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. 2250(a) by striking ``Sec. 2250(a)'' and inserting ``Sec. 2250(a), (b)''; and in the line referenced to 18 U.S.C. 2250(c) by striking ``Sec. 2250(c)'' and inserting ``Sec. 2250(d)''. (C) Frank R. Lautenberg Chemical Safety for the 21st Century Act Synopsis of Proposed Amendment: Part C of the proposed amendment responds to the Frank R. Lautenberg Chemical Safety for the 21st Century Act, Pub. L. 114-182 (June 22, 2016). The Act, among other things, amended section 16 of the Toxic Substances Control Act (15 U.S.C. 2615) to add a new subsection that provides that any person who knowingly and willfully violates certain provisions of the Toxic Substances Control Act and who knows at the time of the violation that the violation places an individual in imminent danger of death or bodily injury shall be subject to a fine up to $250,000, imprisonment of up to 15 years, or both. Part C of the proposed amendment amends Appendix A (Statutory Index) so that the new provision, 15 U.S.C. 2615(b)(2) is referenced to Sec. 2Q1.1 (Knowing Endangerment Resulting From Mishandling Hazardous or Toxic Substances, Pesticides or Other Pollutants), while maintaining the reference to Sec. 2Q1.2 (Mishandling of Hazardous or Toxic Substances or Pesticides; Recordkeeping, Tampering, and Falsification; Unlawfully Transporting Hazardous Materials in Commerce) for 15 U.S.C. 2615(b)(1). Proposed Amendment Appendix A (Statutory Index) is amended-- in the line referenced to 15 U.S.C. 2615 by striking ``Sec. 2615'' and inserting ``Sec. 2615(b)(1)''; and by inserting before the line referenced to 15 U.S.C. 6821 the following new line reference: ``15 U.S.C. 2615(b)(2) 2Q1.1''. D) Use of a Computer Enhancement in Sec. 2G1.3 Synopsis of Proposed Amendment: Part D of the proposed amendment clarifies how the use of a computer enhancement at Sec. 2G1.3(b)(3) interacts with its corresponding commentary at Application Note 4. Section 2G1.3 (Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Sex Trafficking of Children; Use of Interstate Facilities to Transport Information about a Minor) applies to several offenses involving the transportation of a minor for illegal sexual activity. Subsection (b)(3) of Sec. 2G1.3 provides a 2-level enhancement if-- the offense involved the use of a computer or an interactive computer service to (A) persuade, induce, entice, coerce, or facilitate the travel of, the minor to engage in prohibited sexual conduct; or (B) entice, encourage, offer, or solicit a person to engage in prohibited sexual conduct with the minor. Application Note 4 to Sec. 2G1.3 sets forth guidance on this enhancement providing as follows: Subsection (b)(3) is intended to apply only to the use of a computer or an interactive computer service to communicate directly with a minor or with a person who exercises custody, care, or supervisory control of the minor. Accordingly, the enhancement in subsection (b)(3) would not apply to the use of a computer or an interactive computer service to obtain airline tickets for the minor from an airline's Internet site. An application issue has arisen as to whether Application Note 4, by failing to distinguish between the two prongs of subsection (b)(3), prohibits application of the enhancement where a computer was used to solicit a third party to engage in prohibited sexual conduct with a minor. Most courts to have addressed this issue have concluded that Application Note 4 is inconsistent with the language of Sec. 2G1.3(b)(3), and have permitted the application of the enhancement for use of a computer in third party solicitation cases. See, e.g., United States v. Cramer, 777 F.3d 597, 606 (2d Cir. 2015) (``We conclude that Application Note 4 is plainly inconsistent with subsection (b)(3)(B). . . . The plain language of subsection (b)(3)(B) is clear, and there is no indication that the drafters of the Guidelines intended to limit this plain language through Application Note 4.''); United States v. McMillian, 777 F.3d 444, 449-50 (7th Cir. 2015) (``[The defendant] points out that Application Note 4 states that `Subsection (b)(3) is intended to apply only to the use of a computer or an interactive computer service to communicate directly with a minor or with a person who exercises custody, care, or supervisory control of the minor.[`]. . . . But the note is wrong. The guideline section provides a 2-level enhancement whenever the defendant uses a computer to `entice, encourage, offer, or solicit a person to engage in prohibited sexual conduct with the minor. . . . When an application note clashes with the guideline, the guideline prevails.''); United States v. Hill, 783 F.3d 842, 846 (11th Cir. 2015) (``Because the application note is inconsistent with the plain language of U.S.S.G. Sec. 2G1.3(b)(3)(B), the plain language of the guideline controls.''); United States v. Pringler, 765 F.3d 455 (5th Cir. 2014) (``[W]e hold that the commentary in application note 4 is `inconsistent with' Guideline Sec. 2G1.3(b)(3)(B), and we therefore follow the plain language of the Guideline alone.''). Part D of the proposed amendment would amend the Commentary to Sec. 2G1.3 to clarify that the guidance contained in Application Note 4 refers only to subsection (b)(3)(A) and does not control the application of the enhancement for use of a computer in third party solicitation cases (as provided in subsection (b)(3)(B)). Proposed Amendment The Commentary to Sec. 2G1.3 captioned ``Application Notes'' is amended in Note 4 by striking ``(b)(3)'' each place such term appears and inserting ``(b)(3)(A)''. 8. Marihuana Equivalency Synopsis of Proposed Amendment This proposed amendment makes technical changes to Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) to replace the term ``marihuana equivalency'' which is used in the Drug Equivalency Tables when determining penalties for controlled substances. The Commentary to Sec. 2D1.1 sets forth a series of Drug Equivalency Tables. These tables provide a value termed ``marihuana equivalency'' for certain controlled substances that is used to determine the offense level for cases in which the controlled substance involved in the offense is not specifically listed in the Drug Quantity Tables, or where there is more than one controlled substance involved in the offense (whether or not listed in the Drug Quantity Table). See Sec. 2D1.1, comment. (n.8). The tables are separated by drug type and schedule. In a case involving a controlled substance that is not specifically referenced in the Drug Quantity Table, [[Page 92018]] the base offense level is determined by using the Drug Equivalency Tables to convert the quantity of the controlled substance involved in the offense to its marihuana equivalency, then finding the offense level in the Drug Quantity Table that corresponds to that quantity of marihuana. In a case involving more than one controlled substance, each of the drugs is converted into its marihuana equivalency, the converted quantities are added, and the aggregate quantity is used to find the offense level in the Drug Quantity Table. The Commission received comment expressing concern that the term ``marihuana equivalency'' is misleading and results in confusion for individuals not fully versed in the guidelines. In particular, they suggested that the Commission should replace ``marihuana equivalency'' with another term. The proposed amendment amends Sec. 2D1.1 to replace ``marihuana equivalency'' in the Drug Equivalency Tables for determining penalties for controlled substances. It replaces that term throughout the guideline with the term ``converted drug weight.'' It also changes the title of the ``Drug Equivalency Tables'' to ``Drug Conversion Tables.'' The proposed amendment is not intended as a substantive change in policy. Finally, the proposed amendment makes certain clerical and conforming changes to reflect the changes to the Drug Equivalency Tables. Proposed Amendment Section 2D1.1(c)(1) is amended by striking the period at the end of the line referenced to Flunitrazepam and inserting a semicolon, and by adding at the end the following: ''90,000 KG or more of Converted Drug Weight.''. Section 2D1.1(c)(2) is amended by striking the period at the end of the line referenced to Flunitrazepam and inserting a semicolon, and by adding at the end the following: '' At least 30,000 KG but less than 90,000 KG of Converted Drug Weight.''. Section 2D1.1(c)(3) is amended by striking the period at the end of the line referenced to Flunitrazepam and inserting a semicolon, and by adding at the end the following: '' At least 10,000 KG but less than 30,000 KG of Converted Drug Weight.''. Section 2D1.1(c)(4) is amended by striking the period at the end of the line referenced to Flunitrazepam and inserting a semicolon, and by adding at the end the following: '' At least 3,000 KG but less than 10,000 KG of Converted Drug Weight.''. Section 2D1.1(c)(5) is amended by striking the period at the end of the line referenced to Flunitrazepam and inserting a semicolon, and by adding at the end the following: '' At least 1,000 KG but less than 3,000 KG of Converted Drug Weight.''. Section 2D1.1(c)(6) is amended by striking the period at the end of the line referenced to Flunitrazepam and inserting a semicolon, and by adding at the end the following: '' At least 700 KG but less than 1,000 KG of Converted Drug Weight.''. Section 2D1.1(c)(7) is amended by striking the period at the end of the line referenced to Flunitrazepam and inserting a semicolon, and by adding at the end the following: '' At least 400 KG but less than 700 KG of Converted Drug Weight.''. Section 2D1.1(c)(8) is amended by striking the period at the end of the line referenced to Flunitrazepam and inserting a semicolon, and by adding at the end the following: '' At least 100 KG but less than 400 KG of Converted Drug Weight.''. Section 2D1.1(c)(9) is amended by striking the period at the end of the line referenced to Flunitrazepam and inserting a semicolon, and by adding at the end the following: '' At least 80 KG but less than 100 KG of Converted Drug Weight.''. Section 2D1.1(c)(10) is amended by striking the period at the end of the line referenced to Flunitrazepam and inserting a semicolon, and by adding at the end the following: '' At least 60 KG but less than 80 KG of Converted Drug Weight.''. Section 2D1.1(c)(11) is amended by striking the period at the end of the line referenced to Flunitrazepam and inserting a semicolon, and by adding at the end the following: '' At least 40 KG but less than 60 KG of Converted Drug Weight.''. Section 2D1.1(c)(12) is amended by striking the period at the end of the line referenced to Flunitrazepam and inserting a semicolon, and by adding at the end the following: '' At least 20 KG but less than 40 KG of Converted Drug Weight.''. Section 2D1.1(c)(13) is amended by striking the period at the end of the line referenced to Flunitrazepam and inserting a semicolon, and by adding at the end the following: '' At least 10 KG but less than 20 KG of Converted Drug Weight.''. Section 2D1.1(c)(14) is amended by striking the period at the end of the line referenced to Schedule IV substances (except Flunitrazepam) and inserting a semicolon, and by adding at the end the following: '' At least 5 KG but less than 10 KG of Converted Drug Weight.''. Section 2D1.1(c)(15) is amended by striking the period at the end of the line referenced to Schedule IV substances (except Flunitrazepam) and inserting a semicolon, and by adding at the end the following: '' At least 2.5 KG but less than 5 KG of Converted Drug Weight.''. Section 2D1.1(c)(16) is amended by striking the period at the end of the line referenced to Schedule V substances and inserting a semicolon, and by adding at the end the following: '' At least 1 KG but less than 2.5 KG of Converted Drug Weight.''. Section 2D1.1(c)(17) is amended by striking the period at the end of the line referenced to Schedule V substances and inserting a semicolon, and by adding at the end the following: '' Less than 1 KG of Converted Drug Weight.''. The annotation to Sec. 2D1.1(c) captioned ``Notes to Drug Quantity Table'' is amended by inserting at the end the following new Note (J): ``(J) The term `Converted Drug Weight,' for purposes of this guideline, refers to a nominal reference designation that is to be used as a conversion factor in the Drug Conversion Tables set forth in the Commentary below, to determine the offense level for controlled substances that are not specifically referenced in the Drug Quantity Table or when combining differing controlled substances.''. The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is amended-- in Note 6 by striking ``marihuana equivalency'' and inserting ``converted drug weight'' and by inserting after ``the most closely related controlled substance referenced in this guideline.'' the following: ``See Application Note 8.''; in the heading of Note 8 by striking ``Equivalency'' and inserting ``Conversion''; in Note 8(A) by striking ``Drug Equivalency Tables'' both places such term appears and inserting ``Drug Conversion Tables''; by striking ``to convert the quantity of the controlled substance involved in the offense to its equivalent quantity of marihuana'' and inserting ``to find the converted drug weight of the controlled substance involved in the offense''; by striking ``Find the equivalent quantity of marihuana'' and inserting ``Find the corresponding converted drug weight''; by striking ``Use the offense level that corresponds to the equivalent quantity of marihuana'' [[Page 92019]] and inserting ``Use the offense level that corresponds to the converted drug weight determined above''; by striking ``an equivalent quantity of 5 kilograms of marihuana'' and inserting ``5 kilogram of converted drug weight''; and by striking ``the equivalent quantity of marihuana would be 500 kilograms'' and inserting ``the converted drug weight would be 500 kilograms''; in Note 8(B) by striking ``Drug Equivalency Tables'' each place such term appears and inserting ``Drug Conversion Tables''; by striking ``convert each of the drugs to its marihuana equivalent'' and inserting ``convert each of the drugs to its converted drug weight''; by striking ``For certain types of controlled substances, the marihuana equivalencies'' and inserting ``For certain types of controlled substances, the converted drug weights assigned''; by striking ``e.g., the combined equivalent weight of all Schedule V controlled substances shall not exceed 2.49 kilograms of marihuana'' and inserting ``e.g., the combined converted weight of all Schedule V controlled substances shall not exceed 2.49 kilograms of converted drug weight''; by striking ``determine the marihuana equivalency for each schedule separately'' and inserting ``determine the converted drug weight for each schedule separately''; and by striking ``Then add the marihuana equivalencies to determine the combined marihuana equivalency'' and inserting ``Then add the converted drug weights to determine the combined converted drug weight''; in Note 8(C)(i) by striking ``of marihuana'' each place such term appears and inserting ``of converted drug weight''; and by striking ``The total is therefore equivalent to 95 kilograms'' and inserting ``The total therefore converts to 95 kilograms''; in Note 8(C)(ii) by striking the following: ``The defendant is convicted of selling 500 grams of marihuana (Level 6) and 10,000 units of diazepam (Level 6). The diazepam, a Schedule IV drug, is equivalent to 625 grams of marihuana. The total, 1.125 kilograms of marihuana, has an offense level of 8 in the Drug Quantity Table.'', and inserting the following: ``The defendant is convicted of selling 500 grams of marihuana (Level 6) and 10,000 units of diazepam (Level 6). The amount of marihuana converts to 500 grams of converted drug weight. The diazepam, a Schedule IV drug, converts to 625 grams of converted drug weight. The total, 1.125 kilograms of converted drug weight, has an offense level of 8 in the Drug Quantity Table.''; in Note 8(C)(iii) by striking ``is equivalent'' both places such term appears and inserting ``converts''; by striking ``of marihuana'' each place such term appears and inserting ``of converted drug weight''; and by striking ``The total is therefore equivalent'' and inserting ``The total therefore converts''; in Note 8(C)(iv) by striking ``marihuana equivalency'' each place such term appears and inserting ``converted drug weight''; by striking ``76 kilograms of marihuana'' and inserting ``76 kilograms''; by striking ``79.99 kilograms of marihuana'' both places such term appears and inserting ``79.99 kilograms of converted drug weight''; by striking ``equivalent weight'' each place such term appears and inserting ``converted weight''; by striking ``9.99 kilograms of marihuana'' and inserting ``9.99 kilograms''; and by striking ``2.49 kilograms of marihuana'' and inserting ``2.49 kilograms''; and in Note 8(D)-- in the heading, by striking ``Equivalency'' and inserting ``Conversion''; under the heading relating to Schedule I or II Opiates, by striking the heading as follows: ``Schedule I or II Opiates*'', and inserting the following new heading: ``Schedule I or II Opiates* Converted Drug Weight''; and by striking ``of marihuana'' each place such term appears; under the heading relating Cocaine and Other Schedule I and II Stimulants (and their immediate precursors), by striking the heading as follows: ``Cocaine and Other Schedule I and II Stimulants (and their immediate precursors)*'', and inserting the following new heading: ``Cocaine and Other Schedule I and Converted Drug Weight''; II Stimulants (and their immediate precursors)* and by striking ``of marihuana'' each place such term appears; under the heading relating to LSD, PCP, and Other Schedule I and II Hallucinogens (and their immediate precursors), by striking the heading as follows: ``LSD, PCP, and Other Schedule I and II Hallucinogens (and their immediate precursors)*'', and inserting the following new heading: ``LSD, PCP, and Other Schedule I and Converted Drug Weight''; II Hallucinogens (and their immediate precursors)* and by striking ``of marihuana'' each place such term appears; under the heading relating to Schedule I Marihuana, by striking the heading as follows: ``Schedule I Marihuana'', and inserting the following new heading: ``Schedule I Marihuana Converted Drug Weight''; and by striking ``of marihuana'' each place such term appears; under the heading relating to Flunitrazepam, by striking the heading as follows: ``Flunitrazepam**'', and inserting the following new heading: ``Flunitrazepam** Converted Drug Weight''; and by striking ``of marihuana''; under the heading relating to Schedule I or II Depressants (except gamma-hydroxybutyric acid), by striking the heading as follows: ``Schedule I or II Depressants (except gamma-hydroxybutyric acid)'', and inserting the following new heading: ``Schedule I or II Depressants Converted Drug Weight''; (except gamma-hydroxybutyric acid) and by striking ``of marihuana''; under the heading relating to Gamma-hydroxybutyric Acid, by striking the heading as follows: ``Gamma-hydroxybutyric Acid'', and inserting the following new heading: ``Gamma-hydroxybutyric Acid Converted Drug Weight''; and by striking ``of marihuana''; under the heading relating to Schedule III Substances (except ketamine), by striking the heading as follows: ``Schedule III Substances (except ketamine)***'', and inserting the following new heading: ``Schedule III Substances (except Converted Drug Weight''; ketamine)*** by striking ``1gm of marihuana'' and inserting ``1 gm''; by striking [[Page 92020]] ``equivalent weight'' and inserting ``converted weight''; and by striking ``79.99 kilograms of marihuana'' and inserting ``79.99 kilograms of converted drug weight''; under the heading relating to Ketamine, by striking the heading as follows: ``Ketamine'', and inserting the following new heading: ``Ketamine Converted Drug Weight''; and by striking ``of marihuana''; under the heading relating to Schedule IV Substances (except flunitrazepam), by striking the heading as follows: ``Schedule IV Substances (except flunitrazepam)*****'', and inserting the following new heading: ``Schedule IV Substances (except Converted Drug Weight''; flunitrazepam)***** by striking ``0.0625 gm of marihuana'' and inserting ``0.0625 gm''; by striking ``equivalent weight'' and inserting ``converted weight''; and by striking ``9.99 kilograms of marihuana'' and inserting ``9.99 kilograms of converted drug weight''; under the heading relating to Schedule V Substances, by striking the heading as follows: ``Schedule V Substances******'', and inserting the following new heading: ``Schedule V Substances****** Converted Drug Weight''; by striking ``0.00625 gm of marihuana'' and inserting ``0.00625 gm''; by striking ``equivalent weight'' and inserting ``converted weight''; and by striking ``2.49 kilograms of marihuana'' and inserting ``2.49 kilograms of converted drug weight''; under the heading relating to List I Chemicals (relating to the manufacture of amphetamine or methamphetamine), by striking the heading as follows: ``List I Chemicals (relating to the manufacture of amphetamine or methamphetamine)*******'', and inserting the following new heading: ``List I Chemicals (relating to the Converted Drug Weight''; manufacture of amphetamine or methamphetamine)******* and by striking ``of marihuana'' each place such term appears; under the heading relating to Date Rape Drugs (except flunitrazepam, GHB, or ketamine), by striking the heading as follows: ``Date Rape Drugs (except flunitrazepam, GHB, or ketamine)'', and inserting the following new heading: ``Date Rape Drugs (except Converted Drug Weight''; flunitrazepam, GHB, or ketamine) and by striking ``marihuana'' each place such term appears; and in the text before the heading relating to Measurement Conversion Table, by striking ``To facilitate conversions to drug equivalencies'' and inserting ``To facilitate conversions to converted drug weights''. 9. Technical Amendment Synopsis of Amendment: This proposed amendment makes various technical changes to the Guidelines Manual. Part A of the proposed amendment makes certain clarifying changes to two guidelines. First, the proposed amendment amends Chapter One, Part A, Subpart 1(4)(b) (Departures) to provide an explanatory note addressing the fact that Sec. 5K2.19 (Post-Sentencing Rehabilitative Efforts) was deleted by Amendment 768, effective November 1, 2012. Second, the proposed amendment makes minor clarifying changes to Application Note 2(A) to Sec. 2B1.1 (Theft, Property Destruction, and Fraud), to make clear that, for purposes of subsection (a)(1)(A), an offense is ``referenced to this guideline'' if Sec. 2B1.1 is the applicable Chapter Two guideline specifically referenced in Appendix A (Statutory Index) for the offense of conviction. Part B of the proposed amendment makes technical changes in Sec. Sec. 2Q1.3 (Mishandling of Other Environmental Pollutants; Recordkeeping, Tampering, and Falsification), 2R1.1 (Bid-Rigging, Price-Fixing or Market-Allocation Agreements Among Competitors), 4A1.2 (Definitions and Instructions for Computing Criminal History), and 4B1.4 (Armed Career Criminal), to correct title references to Sec. 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)). Part C of the proposed amendment makes clerical changes to-- (1) the Commentary to Sec. 1B1.13 (Reduction in Term of Imprisonment Under 18 U.S.C. 3582(c)(1)(A) (Policy Statement)) to correct a typographical error by inserting a missing word in Application Note 4; (2) subsection (d)(6) to Sec. 2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy) to correct a typographical error in the line referencing Pseudoephedrine; (3) subsection (e)(2) to Sec. 2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy) to correct a punctuation mark under the heading relating to List I Chemicals; (4) the Commentary to Sec. 2M2.1 (Destruction of, or Production of Defective, War Material, Premises, or Utilities) captioned ``Statutory Provisions'' to add a missing section symbol and a reference to Appendix A (Statutory Index); (5) the Commentary to Sec. 2Q1.1 (Knowing Endangerment Resulting From Mishandling Hazardous or Toxic Substances, Pesticides or Other Pollutants) captioned ``Statutory Provisions'' to add a missing reference to 42 U.S.C. 7413(c)(5) and a reference to Appendix A (Statutory Index); (6) the Commentary to Sec. 2Q1.2 (Mishandling of Hazardous or Toxic Substances or Pesticides; Recordkeeping, Tampering, and Falsification; Unlawfully Transporting Hazardous Materials in Commerce) captioned ``Statutory Provisions'' to add a specific reference to 42 U.S.C. 7413(c)(1)-(4); (7) the Commentary to Sec. 2Q1.3 (Mishandling of Other Environmental Pollutants; Recordkeeping, Tampering, and Falsification) captioned ``Statutory Provisions'' to add a specific reference to 42 U.S.C. 7413(c)(1)-(4); (8) subsection (a)(4) to Sec. 5D1.3. (Conditions of Supervised Release) to change an inaccurate reference to ``probation'' to ``supervised release''; and (9) the lines referencing ``18 U.S.C. 371'' and ``18 U.S.C. 1591'' in Appendix A (Statutory Index) to rearrange the order of certain Chapter Two guidelines references to place them in proper numerical order. Proposed Amendment: (A) Clarifying Changes Chapter One, Part A is amended in Subpart 1(4)(b) (Departures) by inserting an asterisk after ``Sec. 5K2.19 (Post-Sentencing Rehabilitative Efforts)'', and by inserting at the end [of the first paragraph] the following: ``*Note: Section 5K2.19 (Post-Sentencing Rehabilitative Efforts) was deleted by Amendment 768, effective November 1, 2012. (See USSG App. C, amendment 768.)''; and in the note at the end of Subpart 1(4)(d) (Probation and Split Sentences) by striking ``Supplement to Appendix C'' and inserting ``USSG App. C''. The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is amended in [[Page 92021]] Note 2(A)(i) by striking ``as determined under the provisions of Sec. 1B1.2 (Applicable Guidelines) for the offense of conviction'' and inserting the following: ``specifically referenced in Appendix A (Statutory Index) for the offense of conviction, as determined under the provisions of Sec. 1B1.2 (Applicable Guidelines)''. (B) Title References to Sec. 4A1.3 The Commentary to Sec. 2Q1.3 captioned ``Application Notes'' is amended in Note 8 by striking ``Adequacy of Criminal History Category'' and inserting ``Departures Based on Inadequacy of Criminal History Category (Policy Statement)''. The Commentary to Sec. 2R1.1 captioned ``Application Notes'' is amended in Note 7 by striking ``Adequacy of Criminal History Category'' and inserting ``Departures Based on Inadequacy of Criminal History Category (Policy Statement)''. Section 4A1.2 is amended in subsections (h) through (j) by striking ``Adequacy of Criminal History Category'' each place such term appears and inserting ``Departures Based on Inadequacy of Criminal History Category (Policy Statement)''. The Commentary to Sec. 4A1.2 captioned ``Application Notes'' is amended in Notes 6 and 8 by striking ``Adequacy of Criminal History Category'' both places such term appears and inserting ``Departures Based on Inadequacy of Criminal History Category (Policy Statement)''. The Commentary to Sec. 4B1.4 captioned ``Background'' is amended by striking ``Adequacy of Criminal History Category'' and inserting ``Departures Based on Inadequacy of Criminal History Category (Policy Statement)''. (C) Clerical Changes The Commentary to Sec. 1B1.13 captioned ``Application Notes'' is amended in Note 4 by striking ``factors set forth 18 U.S.C. 3553(a)'' and inserting ``factors set forth in 18 U.S.C. 3553(a)''. Section 2D1.11 is amended in subsection (d)(6) by striking ``Pseuodoephedrine'' and inserting ``Pseudoephedrine''; and in subsection (e)(2), under the heading relating to List I Chemicals, by striking the period at the end and inserting a semicolon. The Commentary to Sec. 2M2.1 captioned ``Statutory Provisions'' is amended by striking ``Sec. 2153'' and inserting ``Sec. Sec. 2153'', and by inserting at the end the following: ``For additional statutory provision(s), see Appendix A (Statutory Index).''. The Commentary to Sec. 2Q1.1 captioned ``Statutory Provisions'' is amended by striking ``42 U.S.C. 6928(e)'' and inserting ``42 U.S.C. 6928(e), 7413(c)(5)'', and by inserting at the end the following: ``For additional statutory provision(s), see Appendix A (Statutory Index).''. The Commentary to Sec. 2Q1.2 captioned ``Statutory Provisions'' is amended by striking ``7413'' and inserting ``7413(c)(1)-(4)''. The Commentary to Sec. 2Q1.3 captioned ``Statutory Provisions'' is amended by striking ``7413'' and inserting ``7413(c)(1)-(4)''. Section 5D1.3(a)(4) is amended by striking ``release on probation'' and inserting ``release on supervised release''. Appendix A (Statutory Index) is amended in the line referenced to 18 U.S.C. 371 by rearranging the guidelines to place them in proper order, and in the line referencing 18 U.S.C. 1591 by rearranging the guidelines to place them in proper order. [FR Doc. 2016-30493 Filed 12-16-16; 8:45 am] BILLING CODE 2210-40-P
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for purposes of the health coverage tax proposed amendments) is set forth in commentary. Bracketed text within a
credit (HCTC) under section 35 of the the SUPPLEMENTARY INFORMATION portion proposed amendment indicates a
Internal Revenue Code. The collection of this notice. heightened interest on the
of information is voluntary. However, if DATES: (1) Written Public Comment.— Commission’s part in comment and
a state does not make an election, Written public comment regarding the suggestions regarding alternative policy
eligible residents of the state may be proposed amendments and issues for choices; for example, a proposed
impeded in their efforts to claim the comment set forth in this notice, enhancement of [2][4][6] levels indicates
HCTC. including public comment regarding that the Commission is considering, and
Affected Public: State, Local, and retroactive application of any of the invites comment on, alternative policy
Tribal Governments. proposed amendments, should be choices regarding the appropriate level
Estimated Total Annual Burden received by the Commission not later of enhancement. Similarly, bracketed
Hours: 26. than February 20, 2017. Written reply text within a specific offense
OMB Control Number: 1545–2079. comments, which may only respond to characteristic or application note means
Type of Review: Extension without issues raised in the original comment that the Commission specifically invites
change of a currently approved period, should be received by the comment on whether the proposed
collection. Commission on March 10, 2017. Public provision is appropriate. Second, the
Title: Disclosure by taxable party to comment regarding a proposed Commission has highlighted certain
the tax-exempt entity. amendment received after the close of issues for comment and invites
Abstract: This document contains the comment period, and reply suggestions on how the Commission
final regulations that provide guidance comment received on issues not raised should respond to those issues.
under section 4965 of the Internal in the original comment period, may not The proposed amendments and issues
Revenue Code (Code), relating to excise be considered. for comment in this notice are as
taxes with respect to prohibited tax (2) Public Hearing.—The Commission follows:
shelter transactions to which tax-exempt may hold a public hearing regarding the (1) A multi-part proposed amendment
entities are parties, and sections proposed amendments and issues for to Chapters Four (Criminal History and
6033(a)(2) and 6011(g) of the Code, comment set forth in this notice. Further Criminal Livelihood) and Five
relating to certain disclosure obligations information regarding any public (Determining the Sentence), including
with respect to such transactions. hearing that may be scheduled, (A) setting forth options for a new
Affected Public: Businesses or other including requirements for testifying Chapter Four guideline, at § 4C1.1 (First
for-profits. and providing written testimony, as Offenders), and amending § 5C1.1
Estimated Total Annual Burden well as the date, time, location, and (Imposition of a Term of Imprisonment)
Hours: 98,500. scope of the hearing, will be provided to provide lower guideline ranges for
by the Commission on its Web site at ‘‘first offenders’’ generally and increase
Bob Faber, www.ussc.gov. the availability of alternatives to
Acting Treasury PRA Clearance Officer. incarceration for such offenders at the
ADDRESSES: All written comment should
[FR Doc. 2016–30404 Filed 12–16–16; 8:45 am] lower levels of the Sentencing Table,
be sent to the Commission by electronic
BILLING CODE 4830–01–P and related issues for comment; and (B)
mail or regular mail. The email address revisions to Chapter Five to (i) amend
for public comment is Public_ the Sentencing Table in Chapter Five,
Comment@ussc.gov. The regular mail Part A to expand Zone B by
UNITED STATES SENTENCING address for public comment is United
COMMISSION consolidating Zones B and C, (ii) amend
States Sentencing Commission, One the Commentary to § 5F1.2 (Home
Columbus Circle NE., Suite 2–500, Detention) to revise language requiring
Sentencing Guidelines for United Washington, DC 20002–8002, Attention:
States Courts electronic monitoring, and (iii) related
Public Affairs. issues for comment.
AGENCY: United States Sentencing FOR FURTHER INFORMATION CONTACT: (2) a multi-part proposed amendment
Commission. Christine Leonard, Director, Office of relating to the findings and
ACTION: Notice of proposed amendments Legislative and Public Affairs, (202) recommendations contained in the May
to sentencing guidelines, policy 502–4500, pubaffairs@ussc.gov. 2016 Report issued by the Commission’s
statements, and commentary. Request SUPPLEMENTARY INFORMATION: The Tribal Issues Advisory Group, including
for public comment, including public United States Sentencing Commission is (A) amending the Commentary to
comment regarding retroactive an independent agency in the judicial § 4A1.3 (Departures Based on
application of any of the proposed branch of the United States Inadequacy of Criminal History
amendments. Notice of public hearing. Government. The Commission Category (Policy Statement)) to set forth
promulgates sentencing guidelines and a non-exhaustive list of factors for the
SUMMARY: The United States Sentencing policy statements for federal courts court to consider in determining
Commission is considering pursuant to 28 U.S.C. 994(a). The whether, or to what extent, an upward
promulgating certain amendments to the Commission also periodically reviews departure based on a tribal court
sentencing guidelines, policy and revises previously promulgated conviction is appropriate, and related
statements, and commentary. This guidelines pursuant to 28 U.S.C. 994(o) issues for comment; and (B) amending
notice sets forth the proposed and submits guideline amendments to the Commentary to § 1B1.1 (Application
amendments and, for each proposed
sradovich on DSK3GMQ082PROD with NOTICES
the Congress not later than the first day Instructions) to provide a definition of
amendment, a synopsis of the issues of May each year pursuant to 28 U.S.C. ‘‘court protection order,’’ and related
addressed by that amendment. This 994(p). issues for comment;
notice also sets forth a number of issues The proposed amendments in this (3) a proposed amendment to § 4A1.2
for comment, some of which are set notice are presented in one of two (Definitions and Instructions for
forth together with the proposed formats. First, some of the amendments Computing Criminal History) to revise
amendments, and one of which are proposed as specific revisions to a how juvenile sentences are considered
(regarding retroactive application of guideline, policy statement, or for purposes of calculating criminal
VerDate Sep<11>2014 20:55 Dec 16, 2016 Jkt 241001 PO 00000 Frm 00104 Fmt 4703 Sfmt 4703 E:\FR\FM\19DEN1.SGM 19DEN1](https://thefederalregister.org/doc/81_FR_92246/page/1.svg)
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addressed in the guidelines only by decrease of [1] level if the offense level six months, because the minimum term
reference to Criminal History Category I. determined under Chapters Two and of imprisonment is one month and the
However, Criminal History Category I Three is level [16] or greater. maximum terms begin at seven months.
includes not only ‘‘first’’ offenders but Part A also amends § 5C1.1 To avoid sentencing ranges exceeding
also offenders with varying criminal (Imposition of a Term of Imprisonment) six months, the guidelines require that
histories, such as offenders with no to add a new subsection (g) that probationary sentences in Zone B
criminal history points and those with provides that if (1) the defendant is include conditions of confinement.
one criminal history point. Accordingly, determined to be a first offender under Zone B also allows for a term of
the following offenders are classified in § 4C1.1 (First Offender), (2) [the instant imprisonment (of at least one month)
the same category: (1) First time offense of conviction is not a crime of followed by a term of supervised release
offenders with no prior convictions; (2) violence][the defendant did not use with a condition of confinement (i.e., a
offenders who have prior convictions violence or credible threats of violence ‘‘split sentence’’) or a term of
that are not counted because they were or possess a firearm or other dangerous imprisonment only.
not within the time limits set forth in weapon in connection with the offense], Zone C.—Sentences in Zone C range
§ 4A1.2(d) and (e); (3) offenders who and (3) the guideline range applicable to from 10 to 18 months of imprisonment.
have prior convictions that are not used that defendant is in Zone A or Zone B Zone C allows for split sentences, which
in computing the criminal history of the Sentencing Table, the court must include a term of imprisonment
category for reasons other than their ordinarily should impose a sentence equivalent to at least half of the
‘‘staleness’’ (e.g., sentences resulting other than a sentence of imprisonment minimum of the applicable guideline
from foreign or tribal court convictions, in accordance with the other sentencing range. The remaining half of the term
minor misdemeanor convictions or options. requires supervised release with a
infractions); and (4) offenders with a Finally, Part A of the proposed condition of community confinement or
prior conviction that received only one amendment also provides issues for home detention. Alternatively, the court
criminal history point. comment. has the option of imposing a term of
Part A sets forth a new Chapter Four (B) Consolidation of Zones B and C in imprisonment only.
guideline, at § 4C1.1 (First Offenders), the Sentencing Table Zone D.—The final zone, Zone D,
that would provide lower guideline allows for imprisonment only, ranging
ranges for ‘‘first offenders’’ generally Part B of the proposed amendment is
from 15 months to life.
and increase the availability of a result of the Commission’s continued Part B of the proposed amendment
alternatives to incarceration for such study of approaches to encourage the expands Zone B by consolidating Zones
offenders at the lower levels of the use of alternatives to incarceration. See B and C. The expanded Zone B would
Sentencing Table (compared to United States Sentencing Commission, include sentence ranges from one to 18
otherwise similar offenders in Criminal ‘‘Notice of Final Priorities,’’ 81 FR months and allow for the sentencing
History Category I). Recidivism data 58004 (Aug. 24, 2016). options described above. Although the
analyzed by the Commission indicate The Guidelines Manual defines and
proposed amendment would in fact
that ‘‘first offenders’’ generally pose the allocates sentencing options in Chapter
delete Zone C by its consolidation with
lowest risk of recidivism. See, e.g., U.S. Five (Determining the Sentence). This
Zone B, Zone D would not be
Sent. Comm’n, ‘‘Recidivism Among chapter sets forth ‘‘zones’’ in the
redesignated. Finally, Part B makes
Federal Offenders: A Comprehensive Sentencing Table based on the
conforming changes to §§ 5B1.1
Overview,’’ at 18 (2016), available at minimum months of imprisonment in
(Imposition of a Term of Probation) and
http://www.ussc.gov/research/research- each cell. The Sentencing Table sorts all
5C1.1 (Imposition of a Term of
publications/recidivism-among-federal- sentencing ranges into four zones,
Imprisonment).
offenders-comprehensive-overview. In labeled A through D. Each zone allows
Part B also amends the Commentary
addition, 28 U.S.C. 994(j) directs that for different sentencing options, as
to § 5F1.2 (Home Detention) to remove
alternatives to incarceration are follows:
Zone A.—All sentence ranges within the language instructing that (1)
generally appropriate for first offenders electronic monitoring ‘‘ordinarily
not convicted of a violent or otherwise Zone A, regardless of the underlying
offense level or criminal history should be used in connection with’’
serious offense. The new Chapter Four home detention; (2) alternative means of
Guideline, in conjunction with the category, are zero to six months. A
sentencing court has the discretion to surveillance may be used ‘‘so long as
revision to § 5C1.1 (Imposition of a they are effective as electronic
Term of Imprisonment) described impose a sentence that is a fine-only,
probation-only, probation with a monitoring;’’ and (3) ‘‘surveillance
below, would further implement the necessary for effective use of home
congressional directive at section 994(j). confinement condition (home detention,
community confinement, or intermittent detention ordinarily requires’’ electronic
The new Chapter Four guideline
confinement), a split sentence (term of monitoring.
would apply if [(1) the defendant did Issues for comment are also provided.
not receive any criminal history points imprisonment with term of supervised
under the rules contained in Chapter release with condition of confinement), (A) First Offenders
Four, Part A, and (2)] the defendant has or imprisonment. Zone A allows for
Proposed Amendment
no prior convictions of any kind. Part A probation without any conditions of
of the proposed amendment sets forth confinement. Chapter Four is amended by inserting
two options for providing such an Zone B.—Sentence ranges in Zone B at the end the following new Part C:
are from one to 15 months of
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adjustment. Part C—First Offender
Option 1 provides a decrease of [1] imprisonment. Zone B allows for a
level from the offense level determined probation term to be substituted for § 4C1.1. First Offender
under Chapters Two and Three. imprisonment, contingent upon the (a) A defendant is a first offender if
Option 2 provides a decrease of [2] probation term including conditions of [(1) the defendant did not receive any
levels if the final offense level confinement. Zone B allows for non- criminal history points from Chapter
determined under Chapters Two and prison sentences, which technically Four, Part A, and (2)] the defendant has
Three is less than level [16], or a result in sentencing ranges larger than no prior convictions of any kind.
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[Option 1: imprisonment may be appropriate in and the guideline range applicable to
(b) If the defendant is determined to cases in which the defendant used that defendant is in Zone A or Zone B
be a first offender under subsection (a), violence or credible threats of violence of the Sentencing Table, the court
decrease the offense level determined or possessed a firearm or other ordinarily should impose a sentence
under Chapters Two and Three by [1] dangerous weapon in connection with other than a sentence of imprisonment
level.] the offense].’’. in accordance with the other sentencing
[Option 2: Issues for Comment options. Should the Commission further
(b) If the defendant is determined to limit the application of such a
be a first offender under subsection (a), 1. The Commission seeks comment on rebuttable ‘‘presumption’’ and exclude
decrease the offense level as follows: ‘‘first offenders,’’ defined in the certain categories of non-violent
(1) if the offense level determined proposed amendment as defendants offenses? If so, what offenses should be
under Chapters Two and Three is less with no prior convictions of any kind. excluded from the presumption of a
than level [16], decrease by [2] levels; or Should the Commission broaden the non-incarceration sentence? For
(2) if the offense level determined scope of the term ‘‘first offender’’ to example, should the Commission
under Chapters Two and Three is level include other defendants who did not exclude public corruption, tax, and
[16] or greater, decrease by [1] level.] receive criminal history points and, if other white-collar offenses?
so, how? For example, should the term 4. If the Commission were to
Commentary ‘‘first offender’’ include defendants who promulgate Part A of the proposed
Application Note: have prior convictions that are not used amendment, what conforming changes,
in computing criminal history points if any, should the Commission make to
1. Cases Involving Mandatory under Chapter Four (e.g., sentences
Minimum Penalties.—If the case other provisions of the Guidelines
resulting from foreign or tribal court Manual?
involves a statutorily required minimum convictions, misdemeanors and petty
sentence of at least five years and the offenses listed in § 4A1.2(c))? Should (B) Consolidation of Zones B and C in
defendant meets the criteria set forth in the Commission instead limit the scope the Sentencing Table
subsection (a) of § 5C1.2 (Limitation on of the term? If so, how? Should the
Applicability of Statutory Minimum Proposed Amendment
Commission provide additional or
Sentences in Certain Cases), the offense different guidance for determining Chapter Five, Part A is amended in
level determined under this section whether a defendant is, or is not, a first the Sentencing Table by striking ‘‘Zone
shall be not less than level 17. See offender? C’’; by redesignating Zone B to contain
§ 5C1.2(b).’’. 2. Part A of the proposed amendment all guideline ranges having a minimum
Section 5C1.1 is amended by inserting sets forth a new Chapter Four guideline of at least one month but not more than
at the end the following new subsection that would apply if [(1) the defendant twelve months; and by inserting below
(g): did not receive any criminal history ‘‘Zone B’’ the following: ‘‘[Zone C
’’(g) In cases in which (1) the Deleted]’’.
points under the rules contained in
defendant is determined to be a first The Commentary to Chapter Five, Part
Chapter Four, Part A, and (2)] the
offender under § 4C1.1 (First Offender), A (Sentencing Table) is amended by
defendant has no prior convictions of
(2) [the instant offense of conviction is inserting at the end the following:
any kind. One of the options set forth
not a crime of violence][the defendant ‘‘Background: The Sentencing Table
for this new guideline, Option 1, would
did not use violence or credible threats previously provided four ‘‘zones,’’
provide that if the defendant is
of violence or possess a firearm or other labeled A through D, based on the
determined to be a first offender (as
dangerous weapon in connection with minimum months of imprisonment in
defined in the new guideline) a decrease
the offense], and (3) the guideline range each cell. The Commission expanded
of [1] level from the offense level
applicable to that defendant is in Zone Zone B by consolidating former Zones B
determined under Chapters Two and
A or B of the Sentencing Table, the and C. Zone B in the Sentencing Table
Three would apply. Should the
court ordinarily should impose a now contains all guideline ranges
Commission limit the applicability of
sentence other than a sentence of having a minimum term of
the adjustment to defendants with an
imprisonment in accordance with the imprisonment of at least one but not
offense level determined under Chapters
other sentencing options set forth in this more than twelve months. Although
Two and Three that is less than a certain
guideline.’’. Zone C was deleted by its consolidation
The Commentary to § 5C1.1 captioned number of levels? For example, should
the Commission provide that if the with Zone B, the Commission decided
‘‘Application Notes’’ is amended by
offense level determined under Chapters not to redesignate Zone D as Zone C, to
inserting at the end the following new
Note 10: Two and Three is less than level [16], avoid unnecessary confusion that may
‘‘10. Application of Subsection (g).— the offense level shall be decreased by result from different meanings of ‘‘Zone
(A) Sentence of Probation [1] level? What other limitations or C’’ and ‘‘Zone D’’ through different
Prohibited.—The court may not impose requirements, if any, should the editions of the Guidelines Manual.’’.
a sentence of probation pursuant to this Commission provide for such an The Commentary to § 5B1.1 captioned
provision if prohibited by statute or adjustment? ‘‘Application Notes’’ is amended in
where a term of imprisonment is 3. Part A of the proposed amendment Note 1(B), in the heading, by striking
required under this guideline. See would amend § 5C1.1 (Imposition of a ‘‘nine months’’ and inserting ‘‘twelve
§ 5B1.1 (Imposition of a Term of Term of Imprisonment) to provide that months’’; and in Note 2 by striking
if the defendant is determined to be a ‘‘Zone C or D’’ and inserting ‘‘Zone D’’,
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Probation).
[(B) Definition of ‘Crime of first offender under the new § 4C1.1 and by striking ‘‘ten months’’ and
Violence’.—For purposes of subsection (First Offender), [the defendant’s instant inserting ‘‘fifteen months’’.
(g), ‘crime of violence’ has the meaning offense of conviction is not a crime of Section 5C1.1 is amended—
given that term in § 4B1.2 (Definitions of violence][the defendant did not use in subsection (c) by striking ‘‘subsection
Terms Used in Section 4B1.1). violence or credible threats of violence (e)’’ both places such term appears
(C) Sentence of Imprisonment for First or possess a firearm or other dangerous and inserting ‘‘subsection (d)’’;
Offenders.—A sentence of weapon in connection with the offense], by striking subsection (d) as follows:
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‘‘(d) If the applicable guideline range by striking Note 6 as follows: in Note 5 (as so redesignated) by striking
is in Zone C of the Sentencing Table, the ‘‘subsections (c) and (d)’’ and
‘‘6. There may be cases in which a
minimum term may be satisfied by— inserting ‘‘subsection (c)’’;
(1) a sentence of imprisonment; or departure from the sentencing options and in Note 7 (as so redesignated) by
(2) a sentence of imprisonment that authorized for Zone C of the Sentencing striking ‘‘Subsection (f)’’ and inserting
includes a term of supervised release Table (under which at least half the ‘‘Subsection (e)’’, and by striking
with a condition that substitutes minimum term must be satisfied by ‘‘subsection (e)’’ and inserting
community confinement or home imprisonment) to the sentencing options ‘‘subsection (d)’’.
detention according to the schedule in authorized for Zone B of the Sentencing The Commentary to § 5F1.2 captioned
subsection (e), provided that at least Table (under which all or most of the ‘‘Application Notes’’ is amended in
one-half of the minimum term is minimum term may be satisfied by Note 1 [by striking ‘‘Electronic
satisfied by imprisonment.’’; intermittent confinement, community monitoring is an appropriate means of
confinement, or home detention instead surveillance and ordinarily should be
and by redesignating subsections (e) and
of imprisonment) is appropriate to used in connection with home
(f) as subsections (d) and (e),
respectively. accomplish a specific treatment detention’’ and inserting ‘‘Electronic
The Commentary to § 5C1.1 captioned purpose. Such a departure should be monitoring is an appropriate means of
‘‘Application Notes’’ is amended— considered only in cases where the surveillance for home detention’’; and]
court finds that (A) the defendant is an by striking ‘‘may be used so long as they
in Note 3 by striking ‘‘nine months’’ and
abuser of narcotics, other controlled are as effective as electronic
inserting ‘‘twelve months’’;
substances, or alcohol, or suffers from a monitoring’’ and inserting ‘‘may be used
by striking Note 4 as follows:
significant mental illness, and (B) the if appropriate’’.
‘‘4. Subsection (d) provides that defendant’s criminality is related to the The Commentary to § 5F1.2 captioned
where the applicable guideline range is treatment problem to be addressed. ‘‘Background’’ is amended by striking
in Zone C of the Sentencing Table (i.e., ‘‘The Commission has concluded that
the minimum term specified in the In determining whether such a
departure is appropriate, the court the surveillance necessary for effective
applicable guideline range is ten or use of home detention ordinarily
twelve months), the court has two should consider, among other things, (1)
the likelihood that completion of the requires electronic monitoring’’ and
options: inserting ‘‘The Commission has
(A) It may impose a sentence of treatment program will successfully
address the treatment problem, thereby concluded that electronic monitoring is
imprisonment. an appropriate means of surveillance for
(B) Or, it may impose a sentence of reducing the risk to the public from
further crimes of the defendant, and (2) home detention’’; and by striking ‘‘the
imprisonment that includes a term of court should be confident that an
supervised release with a condition whether imposition of less
imprisonment than required by Zone C alternative form of surveillance will be
requiring community confinement or equally effective’’ and inserting ‘‘the
home detention. In such case, at least will increase the risk to the public from
further crimes of the defendant. court should be confident that an
one-half of the minimum term specified alternative form of surveillance is
in the guideline range must be satisfied Examples: The following examples appropriate considering the facts and
by imprisonment, and the remainder of both assume the applicable guideline circumstances of the defendant’s case’’.
the minimum term specified in the range is 12–18 months and the court
guideline range must be satisfied by departs in accordance with this Issues for Comment
community confinement or home application note. Under Zone C rules, 1. The Commission requests comment
detention. For example, where the the defendant must be sentenced to at on whether the zone changes
guideline range is 10–16 months, a least six months imprisonment. (1) The contemplated by Part B of the proposed
sentence of five months imprisonment defendant is a nonviolent drug offender amendment should apply to all offenses,
followed by a term of supervised release in Criminal History Category I and or only to certain categories of offenses.
with a condition requiring five months probation is not prohibited by statute. The zone changes would increase the
community confinement or home The court departs downward to impose number of offenders who are eligible
detention would satisfy the minimum a sentence of probation, with twelve under the guidelines to receive a non-
term of imprisonment required by the months of intermittent confinement, incarceration sentence. Should the
guideline range. community confinement, or home Commission provide a mechanism to
The preceding example illustrates a detention and participation in a exempt certain offenses from these zone
sentence that satisfies the minimum substance abuse treatment program as changes? For example, should the
term of imprisonment required by the conditions of probation. (2) The Commission provide a mechanism to
guideline range. The court, of course, defendant is convicted of a Class A or exempt public corruption, tax, and other
may impose a sentence at a higher point B felony, so probation is prohibited by white-collar offenses from these zone
within the guideline range. For statute (see § 5B1.1(b)). The court changes (e.g., to reflect a view that it
example, where the guideline range is departs downward to impose a sentence would not be appropriate to increase the
10–16 months, both a sentence of five of one month imprisonment, with number of public corruption, tax, and
months imprisonment followed by a eleven months in community other white-collar offenders who are
term of supervised release with a confinement or home detention and eligible to receive a non-incarceration
condition requiring six months of participation in a substance abuse sentence)? If so, what mechanism
community confinement or home
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treatment program as conditions of should the Commission provide, and
detention (under subsection (d)), and a supervised release.’’; what offenses should be covered by it?
sentence of ten months imprisonment 2. The proposed amendment would
followed by a term of supervised release by redesignating Notes 5, 7, 8, and 9 as consolidate Zones B and C to create an
with a condition requiring four months Notes 4, 5, 6, and 7, respectively; expanded Zone B. Such an adjustment
of community confinement or home in Note 4 (as so redesignated) by striking would provide probation with
detention (also under subsection (d)) ‘‘Subsection (e)’’ and inserting conditions of confinement as a
would be within the guideline range.’’; ‘‘Subsection (d)’’; sentencing option for current Zone C
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![92008 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Notices
defendants, an option that was not appropriate. See Tribal Issues Advisory order in Indian Country. It also
available to such defendants before. The Group Charter § 1(b)(3). established new assault offenses and
Commission seeks comment on whether The Commission also directed the enhanced existing assault offenses. Both
the Commission should provide TIAG to present a final report with its Acts increased criminal jurisdiction for
additional guidance to address these findings and recommendations, tribal courts, but also required more
new Zone B defendants. If so, what including any recommendations that the robust court procedures and provided
guidance should the Commission TIAG considered appropriate on more procedural protections for
provide? potential amendments to the guidelines defendants.
and policy statements. See id. § 6(a). On The TIAG notes in its report that
2. Tribal Issues May 16, 2016, the TIAG presented to the ‘‘[w]hile some tribes have exercised
Synopsis of Proposed Amendment: In Commission its final report. Among the expanded jurisdiction under TLOA and
August 2016, the Commission indicated recommendations suggested in the the VAWA Reauthorization, most have
that one of its priorities would be the Report, the TIAG recommends revisions not done so. Given the lack of tribal
‘‘[s]tudy of the findings and to the Guidelines Manual relating to resources, and the absence of significant
recommendations contained in the May ‘‘the use of tribal court convictions in additional funding under TLOA and the
2016 Report issued by the Commission’s the computation of criminal history VAWA Reauthorization to date, it is not
Tribal Issues Advisory Group, and scores’’ and ‘‘how the federal sentencing certain that more tribes will be able to
consideration of any amendments to the guidelines should account for protection do so any time soon.’’ TIAG Report, at
Guidelines Manual that may be orders issued by tribal courts.’’ 10–11. Members of the TIAG describe
appropriate in light of the information The Commission is publishing this their experience with tribal courts as
obtained from such study.’’ See United proposed amendment to inform the ‘‘widely varied,’’ expressing among their
States Sentencing Commission, ‘‘Notice Commission’s consideration of these findings certain concerns about funding,
of Final Priorities,’’ 81 FR 58004 (Aug. issues. The proposed amendment perceptions of judicial bias or political
24, 2016). See also Report of the Tribal contains two parts. The Commission is influence, due process protections, and
Issues Advisory Group (May 16, 2016), considering whether to promulgate one access to tribal court records. Id. at 11–
at http://www.ussc.gov/research/ or both of these parts, as they are not 12.
research-publications/report-tribal- necessarily mutually exclusive. The TIAG report highlights that
issues-advisory-group. The Commission ‘‘[t]ribal courts occupy a unique and
(A) Tribal Court Convictions
is publishing this proposed amendment valuable place in the criminal justice
to inform the Commission’s Pursuant to Chapter Four, Part A system,’’ while also recognizing that
consideration of the issues related to (Criminal History), sentences resulting ‘‘[t]ribal courts range in style’’. Id. at 13.
this policy priority. from tribal court convictions are not According to the TIAG, the differences
In 2015, the Commission established counted for purposes of calculating in style and the concerns expressed
the Tribal Issues Advisory Group (TIAG) criminal history points, but may be above ‘‘make it often difficult for a
as an ad hoc advisory group to the considered under § 4A1.3 (Departures federal court to determine how to weigh
Commission. Among other things, the Based on Inadequacy of Criminal tribal court convictions in rendering a
Commission tasked the TIAG with History Category (Policy Statement)). sentencing decision.’’ Id. at 11. It also
studying the following issues— See USSG § 4A1.2(i). The policy asserts that ‘‘taking a single approach to
(A) the operation of the federal statement at § 4A1.3 allows for upward the consideration of tribal court
sentencing guidelines as they relate to departures if reliable information convictions would be very difficult and
American Indian defendants and indicates that the defendant’s criminal could potentially lead to a disparate
victims and to offenses committed in history category substantially result among Indian defendants in
Indian Country, and any viable methods underrepresents the seriousness of the federal courts.’’ Id. at 12. Thus, the
for revising the guidelines to (i) improve defendant’s criminal history. Among the TIAG concludes that tribal convictions
their operation or (ii) address particular grounds for departure, the policy should not be counted for purposes of
concerns of tribal communities and statement includes ‘‘[p]rior sentences determining criminal history points
courts; not used in computing the criminal pursuant to Chapter Four, Part A, and
(B) whether there are disparities in history category (e.g., sentences for that ‘‘the current use of USSG § 4A1.3
the application of the federal sentencing foreign and tribal offenses).’’ USSG to depart upward in individual cases
guidelines to American Indian § 4A1.3(a)(2)(A). continues to allow the best formulation
defendants, and, if so, how to address As noted in the TIAG’s report, in of ‘sufficient but not greater than
them; recent years there have been important necessary’ sentences for defendants,
(C) the impact of the federal changes in tribal criminal jurisdiction. while not increasing sentencing
sentencing guidelines on offenses In 2010, Congress enacted the Tribal disparities or introducing due process
committed in Indian Country in Law and Order Act of 2010 (TLOA), concerns.’’ Id. Nevertheless, the TIAG
comparison with analogous offenses Pub. L. 111–211, to address high rates recommends that the Commission
prosecuted in state courts and tribal of violent crime in Indian Country by amend § 4A1.3 to provide guidance and
courts; improving criminal justice funding and a more structured analytical framework
(D) the use of tribal court convictions infrastructure in tribal government, and for courts to consider when determining
in the computation of criminal history expanding the sentencing authority of whether a departure is appropriate
scores, risk assessment, and for other tribal court systems. In 2013, the based on a defendant’s record of tribal
Violence Against Women
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purposes; court convictions. The guidance
(E) how the federal sentencing Reauthorization Act of 2013 (VAWA recommended by the TIAG ‘‘collectively
guidelines should account for protection Reauthorization), Pub. L. 113–4, was . . . reflect[s] important considerations
orders issued by tribal courts; and enacted to expand the criminal for courts to balance the rights of
(F) any other issues relating to jurisdiction of tribes to prosecute, defendants, the unique and important
American Indian defendants and sentence, and convict Indians and non- status of tribal courts, the need to avoid
victims, or to offenses committed in Indians who assault Indian spouses or disparate sentences in light of disparate
Indian Country, that the TIAG considers dating partners or violate a protection tribal court practices and circumstances,
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![Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Notices 92009
and the goal of accurately assessing the A protection order issued by a State, tribal, convictions from its courts should be
severity of any individual defendant’s or territorial court is consistent with this counted for purposes of computing
criminal history.’’ Id. at 13. subsection if— criminal history pursuant to the
(1) such court has jurisdiction over the Guidelines Manual.]’’.
The proposed amendment would parties and matter under the law of such
amend the Commentary to § 4A1.3 to set State, Indian tribe, or territory; and Issues for Comment
forth a non-exhaustive list of factors for (2) reasonable notice and opportunity to be
the court to consider in determining heard is given to the person against whom 1. The proposed amendment would
whether, or to what extent, an upward the order is sought sufficient to protect that provide a list of relevant factors that
departure based on a tribal court person’s right to due process. In the case of courts may consider, in addition to the
conviction is appropriate. ex parte orders, notice and opportunity to be factors set forth in § 4A1.3(a), in
Issues for comment are also provided. heard must be provided within the time determining whether an upward
required by State, tribal, or territorial law, departure based on a tribal court
(B) Court Protection Orders and in any event within a reasonable time conviction may be warranted. The
after the order is issued, sufficient to protect Commission seeks comment on whether
Under the Guidelines Manual, the the respondent’s due process rights. 18
violation of a court protection order is the factors provided in the proposed
U.S.C. 2265(b).
a specific offense characteristic in three amendment are appropriate. Should any
Chapter Two offense guidelines. See The proposed amendment would factors be deleted or changed? Should
USSG §§ 2A2.2 (Aggravated Assault), amend the Commentary to § 1B1.1 the Commission provide additional or
2A6.1 (Threatening or Harassing (Application Instructions) to provide a different guidance? If so, what guidance
Communications; Hoaxes; False Liens), definition of court protection order should the Commission provide?
and 2A6.2 (Stalking or Domestic derived from 18 U.S.C. 2266(5), with a In particular, the Commission seeks
Violence). The Commission has heard provision that it must be consistent with comment on how these factors should
concerns that the term ‘‘court protection 18 U.S.C. 2265(b). interact with each other and with the
Issues for comment are also provided. factors already contained in § 4A1.3(a).
order’’ has not been defined in the
guidelines and should be clarified. (A) Tribal Court Convictions Should the Commission provide greater
emphasis on one or more factors set
The TIAG notes in its report the
Proposed Amendment forth in the proposed amendment? For
importance of defining ‘‘court
Section 4A1.3(a)(2) is amended by example, how much weight should be
protection orders’’ in the guidelines,
striking ‘‘subsection (a)’’ and inserting given to factors that address due process
because—
‘‘subsection (a)(1)’’; and by striking concerns (subdivisions (i) and (ii)) in
[a] clear definition of that term will ensure relation to the other factors provided in
that orders used for sentencing
‘‘tribal offenses’’ and inserting ‘‘tribal
convictions’’. the proposed amendment, such as those
enhancements are the result of court factors relevant to preventing
proceedings assuring appropriate due process The Commentary to § 4A1.3 captioned
‘‘Application Notes’’ is amended in unwarranted double counting
protections, that there is consistent
identification and treatment of such orders, Note 2 by inserting at the end the (subdivisions (iii) and (iv))? Should the
and that such orders issued by tribal courts following new paragraph (C): Commission provide that in order to
receive treatment consistent with that of ‘‘(C) Upward Departures Based on consider whether an upward departure
other issuing jurisdictions. TIAG Report, at Tribal Court Convictions.—In based on a tribal court conviction is
14. determining whether, or to what extent, appropriate, and before taking into
The TIAG recommends that the an upward departure based on a tribal account any other factor, the court must
Commission adopt a definition of ‘‘court court conviction is appropriate, the first determine as a threshold factor that
protection order’’ that incorporates the court shall consider the factors set forth the defendant received due process
in § 4A1.3(a) above and, in addition, protections consistent with those
statutory provisions at 18 U.S.C. 2265
may consider relevant factors such as provided to criminal defendants under
and 2266. Section 2266(5) provides that
the following: the United States Constitution?
the term ‘‘protection order’’ includes: Finally, the proposed amendment
(i) The defendant was represented by
(A) any injunction, restraining order, or brackets the possibility of including as
a lawyer, had the right to a trial by jury,
any other order issued by a civil or criminal a factor that courts may consider in
court for the purpose of preventing violent or and received other due process
protections consistent with those deciding whether to depart based on a
threatening acts or harassment against, sexual
provided to criminal defendants under tribal court conviction if, ‘‘at the time
violence, or contact or communication with
or physical proximity to, another person, the United States Constitution. the defendant was sentenced, the tribal
including any temporary or final order issued (ii) The tribe was exercising expanded government had formally expressed a
by a civil or criminal court whether obtained jurisdiction under the Tribal Law and desire that convictions from its courts
by filing an independent action or as a Order Act of 2010, Pub. L. 111–211 (July should be counted for purposes of
pendente lite order in another proceeding so 29, 2010), and the Violence Against computing criminal history pursuant to
long as any civil or criminal order was issued Women Reauthorization Act of 2013, the Guidelines Manual.’’ The
in response to a complaint, petition, or Commission invites broad comment on
Pub. L. 113–4 (March 7, 2013).
motion filed by or on behalf of a person this factor and its interaction with the
seeking protection; and
(iii) The tribal court conviction is not
based on the same conduct that formed other factors set forth in the proposed
(B) any support, child custody or visitation
provisions, orders, remedies or relief issued the basis for a conviction from another amendment. Is this factor relevant to the
as part of a protection order, restraining jurisdiction that receives criminal court’s determination of whether to
depart? What are the advantages and
sradovich on DSK3GMQ082PROD with NOTICES
order, or injunction pursuant to State, tribal, history points pursuant to this Chapter.
territorial, or local law authorizing the (iv) The conviction is for an offense disadvantages of including such a
issuance of protection orders, restraining that otherwise would be counted under factor? How much weight should be
orders, or injunctions for the protection of § 4A1.2 (Definitions and Instructions for given to this factor in relation to the
victims of domestic violence, sexual assault, Computing Criminal History). other factors provided in the proposed
dating violence, or stalking. 18 U.S.C. [(v) At the time the defendant was amendment? What criteria should be
2266(5).
sentenced, the tribal government had used in determining when a tribal
Section 2265(b) provides that formally expressed a desire that government has ‘‘formally expressed a
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a downward departure may be defendant’s criminal history category history score, regardless of whether the
warranted if the defendant had an adult may be warranted if, for example, the sentence was classified as a ‘‘juvenile’’
conviction for an offense committed defendant had two minor misdemeanor or ‘‘adult’’ sentence?
prior to age eighteen counted in the convictions close to ten years prior to 2. If the Commission were to
criminal history score that would have the instant offense and no other promulgate the proposed amendment,
been classified as a juvenile evidence of prior criminal behavior in should the Commission provide that
adjudication (and therefore not counted) the intervening period. A departure juvenile sentences may be considered
if the laws of the jurisdiction in which below the lower limit of the applicable for purposes of an upward departure
the defendant was convicted did not guideline range for Criminal History under § 4A1.3 (Departures Based on
categorically consider offenders below Category I is prohibited under Inadequacy of Criminal History
the age of eighteen years as ‘‘adults.’’ subsection (b)(2)(B), due to the fact that Category (Policy Statement))? If so,
Issues for comment are provided. the lower limit of the guideline range for should the Commission limit the
Criminal History Category I is set for a consideration of such departures to
Proposed Amendment certain offenses? For example, should
first offender with the lowest risk of
The Commentary to § 4A1.1 captioned recidivism.’’, the Commission provide that an upward
‘‘Application Notes’’ is amended in and inserting the following: departure under § 4A1.3 may be
Note 2 by striking ‘‘An adult or juvenile warranted if the juvenile sentence was
sentence’’ and inserting ‘‘An adult ’’ Downward Departures.— imposed for an offense involving
sentence’’; and in Note 3 by striking (A) Examples.—A downward violence or that was an otherwise
‘‘An adult or juvenile sentence’’ and departure from the defendant’s criminal serious offense?
inserting ‘‘An adult sentence’’. history category may be warranted 3. The proposed amendment would
Section 4A1.2 is amended— based on any of the following provide that a departure may be
[in subsection (c)(2) by striking circumstances: warranted in cases in which the
‘‘Juvenile status offenses and truancy’’;] (i) The defendant had two minor defendant had an adult conviction for
in subsection (d) by striking ‘‘or misdemeanor convictions close to ten an offense committed prior to age
juvenile’’ both places such term appears years prior to the instant offense and no eighteen counted in the criminal history
in paragraph (2), and by inserting at the other evidence of prior criminal score that would have been classified as
end the following new paragraph (3): behavior in the intervening period. a juvenile adjudication (and therefore
’’(3) Sentences resulting from juvenile (ii) The defendant had an adult not counted) if the laws of the
adjudications are not counted.’’; conviction for an offense committed jurisdiction in which the defendant was
[and in subsection (f) by striking: ‘‘, prior to age eighteen counted in the convicted did not categorically consider
except that diversion from juvenile criminal history score that would have offenders below the age of eighteen
court is not counted’’]. been classified as a juvenile years as ‘‘adults.’’ Should the
The Commentary to § 4A1.2 captioned adjudication (and therefore not counted) Commission provide that a downward
‘‘Application Notes’’ is amended in if the laws of the jurisdiction in which departure may be warranted for such
Note 7 by striking the following: the defendant was convicted did not cases? How would courts determine that
‘‘Section 4A1.2(d) covers offenses categorically consider offenders below the defendant would have received a
committed prior to age eighteen. the age of eighteen years as ‘adults.’ juvenile adjudication if the laws of the
Attempting to count every juvenile (B) Downward Departures from jurisdiction in which the defendant was
adjudication would have the potential Criminal History Category I.—A convicted did not categorically consider
for creating large disparities due to the departure below the lower limit of the offenders below the age of eighteen
differential availability of records. applicable guideline range for Criminal years as ‘‘adults’’? Should the
Therefore, for offenses committed prior History Category I is prohibited under Commission provide specific examples
to age eighteen, only those that resulted subsection (b)(2)(A), due to the fact that or guidance for determining whether a
in adult sentences of imprisonment the lower limit of the guideline range for downward departure is warranted in
exceeding one year and one month, or Criminal History Category I is set for a such cases? If so, what guidance or
resulted in imposition of an adult or first offender with the lowest risk of examples should the Commission
juvenile sentence or release from recidivism.’’. provide? Should the Commission use a
confinement on that sentence within different approach to address these
Issues for Comment
five years of the defendant’s cases and, if so, what should that
commencement of the instant offense 1. The Commission seeks comment on approach be? Are there other
are counted. To avoid disparities from whether the Commission should circumstances that the Commission
jurisdiction to jurisdiction in the age at consider changing how the guidelines should identify as an appropriate basis
which a defendant is considered a account for juvenile sentences for for a downward departure?
‘juvenile,’ this provision applies to all purposes of determining the defendant’s
offenses committed prior to age criminal history pursuant to Chapter 4. Criminal History Issues
eighteen.’’, Four, Part A (Criminal History). Should Synopsis of Proposed Amendment:
and inserting the following: the Commission amend the guidelines This proposed amendment is a result of
‘‘Section 4A1.2(d) applies only when to provide that sentences resulting from the Commission’s work in examining
the defendant was convicted as an adult juvenile adjudications shall not be Chapter Four, Part A (Criminal History)
for an offense committed prior to age counted in the criminal history score? ‘‘to (A) study the treatment of revocation
Alternatively, should the Commission sentences under § 4A1.2(k), and (B)
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eighteen. This provision also sets forth
the time period within which such prior amend the guidelines to count juvenile consider a possible amendment of
adult sentences are counted.’’. sentences only if the offense involved § 4A1.3 (Departures Based on
The Commentary to § 4A1.3 captioned violence or was an otherwise serious Inadequacy of Criminal History
‘‘Application Notes’’ is amended in offense? Should the Commission Category (Policy Statement)) to account
Note 3 by striking the following: provide instead that sentences for for instances in which the time actually
’’ Downward Departures.—A offenses committed prior to age eighteen served was substantially less than the
downward departure from the are not to be counted in the criminal length of the sentence imposed for a
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![Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Notices 92013
probation, parole, supervised release, If the Commission were to promulgate first offender with the lowest risk of
special parole, or mandatory release for the proposed amendment changing how recidivism.’’.
purposes of determining criminal the guidelines account for revocation
Issue for Comment
history points pursuant to Chapter Four, sentences for purposes of determining
Part A (Criminal History). Should the criminal history points, should the 1. Part B of the proposed amendment
Commission consider amending Commission revise the definition of would amend the Commentary to
§ 4A1.2(k) and, if so, how? For example, ‘‘sentence imposed’’ at § 2L1.2 and, if § 4A1.3 (Departures Based on
should revocation sentences not be so, how? How, if at all, should the Inadequacy of Criminal History
counted in determining the criminal Commission revise the ‘‘sentence Category (Policy Statement)) to provide
history score, as provided in the imposed’’ definition to address any term that a downward departure from the
proposed amendment? Should the of imprisonment given upon a defendant’s criminal history may be
Commission provide instead a different revocation sentence? Should the warranted in a case in which the period
approach for counting revocation Commission provide that revocation of imprisonment actually served by the
sentences, such as counting the original sentences should not be considered in defendant was substantially less than
sentence and the revocation sentences determining the length of the ‘‘sentence the length of the sentence imposed for
as separate sentences instead of imposed’’ for purposes of applying the a conviction counted in the criminal
aggregating them? If the Commission enhancements at § 2L1.2? history score. Should the Commission
were to provide a different approach for exclude the consideration of such a
counting revocation sentences, what (B) Departure Based on Substantial downward departure in cases in which
should that different approach be? Difference Between Time-Served and the time actually served by the
2. The proposed amendment would Sentence Imposed defendant was substantially less than
amend § 4A1.2(k) to provide that Proposed Amendment the length of the sentence imposed due
revocations of probation, parole, to reasons unrelated to the facts and
supervised release, special parole, or The Commentary to § 4A1.3 captioned circumstances of the defendant’s case,
mandatory release are not to be counted ‘‘Application Notes’’ is amended in e.g., in order to minimize overcrowding
for purposes of calculating criminal Note 3 by striking the following: or due to state budget concerns?
history points, but may be considered ’’ Downward Departures.—A
under § 4A1.3 (Departures Based on downward departure from the 5. Bipartisan Budget Act
Inadequacy of Criminal History defendant’s criminal history category Synopsis of Proposed Amendment:
Category (Policy Statement)). The policy may be warranted if, for example, the This proposed amendment responds to
statement at § 4A1.3 provides upward defendant had two minor misdemeanor the Bipartisan Budget Act of 2015, Pub.
departures for cases in which reliable convictions close to ten years prior to L. 114–74 (Nov. 2, 2015), which, among
information indicates that the the instant offense and no other other things, amended three existing
defendant’s criminal history category evidence of prior criminal behavior in criminal statutes concerned with
substantially underrepresents the the intervening period. A departure fraudulent claims under certain Social
seriousness of the defendant’s criminal below the lower limit of the applicable Security programs.
history. guideline range for Criminal History The three criminal statutes amended
The Commission seeks comment on Category I is prohibited under by the Bipartisan Budget Act of 2015 are
whether revocation sentences, if not subsection (b)(2)(B), due to the fact that sections 208 (Penalties [for fraud
counted for purposes of calculating the lower limit of the guideline range for involving the Federal Old-Age and
criminal history points, may be Criminal History Category I is set for a Survivors Insurance Trust Fund]), 811
considered for a departure under first offender with the lowest risk of (Penalties for fraud [involving special
§ 4A1.3. Should the Commission recidivism.’’, benefits for certain World War II
provide specific guidance for and inserting the following: veterans]), and 1632 (Penalties for fraud
determining whether an upward [involving supplemental security
departure based on a revocation ’’ Downward Departures.—
income for the aged, blind, and
sentence may be warranted? If so, what (A) Examples.—A downward disabled]) of the Social Security Act (42
specific guidance should the departure from the defendant’s criminal U.S.C. 408, 1011, and 1383a,
Commission provide? history category may be warranted respectively).
3. The Commission recently based on any of the following
promulgated an amendment to the circumstances: (A) Conspiracy To Commit Social
illegal reentry guideline at § 2L1.2 (i) The defendant had two minor Security Fraud
(Unlawfully Entering or Remaining in misdemeanor convictions close to ten The Bipartisan Budget Act of 2015
the United States) that, among other years prior to the instant offense and no added new subdivisions prohibiting
things, revised the specific offense other evidence of prior criminal conspiracy to commit fraud for
characteristics to account for prior behavior in the intervening period. substantive offenses already contained
convictions primarily through a (ii) The period of imprisonment in the three statutes (42 U.S.C. 408,
sentence-imposed approach rather than actually served by the defendant was 1011, and 1383a). For each of the three
through a type of offense approach (i.e., substantially less than the length of the statutes, the new subdivision provides
‘‘categorical approach’’). See USSG App. sentence imposed for a conviction that whoever ‘‘conspires to commit any
C, amendment 802 (effective November counted in the criminal history score. offense described in any of [the]
1, 2016). The amendment retained in (B) Downward Departures from
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paragraphs’’ enumerated shall be
the Commentary to § 2L1.2 a definition Criminal History Category I.—A imprisoned for not more than five years,
of ‘‘sentence imposed’’ that includes as departure below the lower limit of the the same statutory maximum penalty
part of the length of the sentence ‘‘any applicable guideline range for Criminal applicable to the substantive offense.
term of imprisonment given upon History Category I is prohibited under The three amended statutes are
revocation of probation, parole, or subsection (b)(2)(A), due to the fact that currently referenced in Appendix A
supervised release.’’ USSG § 2L1.2, the lower limit of the guideline range for (Statutory Index) to § 2B1.1 (Theft,
comment. (n.2). Criminal History Category I is set for a Property Destruction, and Fraud). The
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![92014 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Notices
proposed amendment would amend Issue for Comment causes the submission of, medical or other
Appendix A so that sections 408, 1011, evidence in connection with any such
1. Part A of the proposed amendment determination . . . .
and 1383a of Title 42 are referenced not would reference the new conspiracy
only to § 2B1.1 but also to § 2X1.1 offenses under 42 U.S.C. 408, 1011, and The Commission seeks comment on
(Attempt, Solicitation, or Conspiracy 1383a to § 2X1.1 (Attempt, Solicitation, how, if at all, the guidelines should be
(Not Covered by a Specific Office or Conspiracy (Not Covered by a amended to address cases in which the
Guideline)). Specific Office Guideline)). The offense of conviction is 42 U.S.C. 408,
An issue for comment is provided. § 1011, or § 1383a, and the statutory
Commission invites comment on
(B) Increased Penalties for Certain whether the guidelines covered by the maximum term of ten years’
Individuals Violating Positions of Trust imprisonment applies because the
proposed amendment adequately
defendant was a person described in 42
The Bipartisan Budget Act of 2015 account for these offenses. If not, what
U.S.C. 408(a), § 1011(a), or § 1383a(a).
also amended sections 408, 1011, and revisions to the guidelines would be
Are these cases adequately addressed by
1383a of Title 42 to add increased appropriate to account for these
existing provisions in the guidelines,
penalties for certain persons who offenses? Should the Commission
such as the adjustment in § 3B1.3
commit fraud offenses under the reference these new offenses to other
(Abuse of Position of Trust or Use of
relevant Social Security programs. The guidelines instead of, or in addition to,
Special Skill)? If so, as an alternative to
Act included a provision in all three the guidelines covered by the proposed
the proposed amendment, should the
statutes identifying such persons as: amendment?
Commission amend § 2B1.1 only to
a person who receives a fee or other income (B) Increased Penalties for Certain provide an application note that
for services performed in connection with Individuals Violating Positions of Trust expressly provides that, for a defendant
any determination with respect to benefits subject to the ten years’ statutory
under this title (including a claimant Proposed Amendment maximum in such cases, an adjustment
representative, translator, or current or Section 2B1.1(b) is amended by under § 3B1.3 ordinarily would apply?
former employee of the Social Security redesignating paragraphs (13) through If not, how should the Commission
Administration), or who is a physician or
other health care provider who submits, or (19) as paragraphs (14) through (20), amend the guidelines to address these
causes the submission of, medical or other respectively, and by inserting the cases?
evidence in connection with any such following new paragraph (13): 2. The proposed amendment would
determination . . . . ‘‘(13) If the defendant was convicted amend § 2B1.1 to provide an
A person who meets this requirement under 42 U.S.C. 408(a), § 1011(a), or enhancement and a minimum offense
and is convicted of a fraud offense § 1383a(a) and the statutory maximum level for cases in which the defendant
under one of the three amended statutes term of ten years’ imprisonment applies, was convicted under 42 U.S.C. 408(a),
increase by [4][2] levels. If the resulting § 1011(a), or § 1383a(a) and the statutory
may be imprisoned for not more than
offense level is less than [14][12], maximum term of ten years’
ten years, double the otherwise
increase to level [14][12].’’. imprisonment applies because the
applicable five-year penalty for other
The Commentary to § 2B1.1 captioned defendant was a person described in 42
offenders. The new increased penalties
‘‘Application Notes’’ is amended by U.S.C. 408(a), § 1011(a), or § 1383a(a).
apply to all of the fraudulent conduct in
redesignating Notes 11 through 20 as However, there may be cases in which
subsection (a) of the three statutes.
The proposed amendment would Notes 12 through 21, respectively, and a defendant, who meets the criteria set
amend § 2B1.1 to address cases in by inserting the following new Note 11: forth for the new statutory maximum
‘‘11. Interaction of Subsection (b)(13) term of ten years’ imprisonment, is
which the defendant was convicted
and § 3B1.3.—[If subsection (b)(13) convicted under a general fraud statute
under 42 U.S.C. 408(a), § 1011(a), or
applies, do not apply § 3B1.3 (Abuse of (e.g., 18 U.S.C. 1341) for an offense
§ 1383a(a) and the statutory maximum
Position of Trust or Use of Special involving conduct described in 42
term of ten years’ imprisonment applies.
Skill).][Application of subsection (b)(13) U.S.C. 408(a), § 1011(a), or § 1383a(a).
It provides an enhancement of [4][2] The Commission seeks comment on
levels and a minimum offense level of does not preclude a defendant from
consideration for an adjustment under whether the Commission should instead
[14][12] for such cases. It also adds amend § 2B1.1 to provide a general
Commentary specifying whether an § 3B1.3 (Abuse of Position of Trust or
Use of Special Skill).]’’. specific offense characteristic for such
adjustment under § 3B1.3 (Abuse of cases. For example, should the
Position of Trust or Use of Special Skill) Issues for Comment Commission provide an enhancement
applies — bracketing two possibilities: for cases in which the offense involved
if the enhancement applies, the 1. The Bipartisan Budget Act of 2015
amended sections 408, 1011, and 1383a conduct described in 42 U.S.C. 408(a),
adjustment does not apply; and if the § 1011(a), or § 1383a(a) and the
enhancement applies, the adjustment is of Title 42 to include a provision in all
three statutes increasing the statutory defendant is a person ‘‘who receives a
not precluded from applying. fee or other income for services
Issues for comment are also provided. maximum term of imprisonment from
five years to ten years for certain performed in connection with any
(A) Conspiracy to Commit Social persons who commit fraud offenses determination with respect to benefits
Security Fraud under subsection (a) of the three [covered by those statutory provisions]
statutes. The Act identifies such persons (including a claimant representative,
Proposed Amendment translator, or current or former
as:
Appendix A (Statutory Index) is
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employee of the Social Security
amended in the line referenced to 42 a person who receives a fee or other income Administration), or who is a physician
U.S.C. 408 by inserting ‘‘, 2X1.1’’ at the for services performed in connection with
or other health care provider who
any determination with respect to benefits
end; in the line referenced to 42 U.S.C. under this title (including a claimant submits, or causes the submission of,
1011 by inserting ‘‘, 2X1.1’’ at the end; representative, translator, or current or medical or other evidence in connection
and in the line referenced to 42 U.S.C. former employee of the Social Security with any such determination’’? If so,
1383a(a) by inserting ‘‘, 2X1.1’’ at the Administration), or who is a physician or how many levels would be appropriate
end. other health care provider who submits, or for such an enhancement? How should
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![Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Notices 92015
such an enhancement interact with the encourages courts to deny a reduction in relevant conduct’’? Should such
existing enhancements at § 2B1.1 and sentence when a defendant pleads challenges include informal challenges
the Chapter Three adjustment at § 3B1.3 guilty and accepts responsibility for the to relevant conduct during the
(Abuse of Position of Trust or Use of offense of conviction, but sentencing process, whether or not the
Special Skill)? unsuccessfully challenges the issues challenged are determinative to
presentence report’s assessments of the applicable guideline range? Should
6. Acceptance of Responsibility
relevant conduct. These commenters the Commission broaden the proposed
Synopsis of Proposed Amendment: In suggest this has a chilling effect because provision to include other sentencing
August 2016, the Commission indicated defendants are concerned such considerations, such as departures or
that one of its priorities would be the objections may jeopardize their variances? Should the Commission
consideration of miscellaneous eligibility for a reduction for acceptance instead remove from § 3E1.1 all
guideline application issues, ‘‘including of responsibility. references to relevant conduct for which
possible consideration of whether a The proposed amendment amends the the defendant is accountable under
defendant’s denial of relevant conduct Commentary to § 3E1.1 to revise how § 1B1.3, and reference only the elements
should be considered in determining the defendant’s challenge of relevant of the offense of conviction?
whether a defendant has accepted conduct should be considered in
responsibility for purposes of § 3E1.1.’’ determining whether the defendant has 7. Miscellaneous
See United States Sentencing accepted responsibility for purposes of Synopsis of Proposed Amendment:
Commission, ‘‘Notice of Final the guideline. Specifically, it would This proposed amendment responds to
Priorities,’’ 81 FR 58004 (Aug. 24, 2016). amend Application Note 1(A) to delete recently enacted legislation and
Section 3E1.1 (Acceptance of the sentence that states ‘‘a defendant miscellaneous guideline issues.
Responsibility) provides for a 2-level who falsely denies, or frivolously The proposed amendment contains
reduction for a defendant who clearly contests, relevant conduct that the court four parts (Parts A through D). The
demonstrates acceptance of determines to be true has acted in a Commission is considering whether to
responsibility. Application Note 1(A) of manner inconsistent with acceptance of promulgate any or all of these parts, as
§ 3E1.1 provides as one of the responsibility.’’ The proposed they are not necessarily mutually
appropriate considerations in amendment would instead provide that exclusive. They are as follows—
determining whether a defendant a defendant who makes a non-frivolous Part A responds to the Transnational
‘‘clearly demonstrate[d] acceptance of challenge to relevant conduct is not Drug Trafficking Act of 2015, Pub. L.
responsibility’’ the following: precluded from consideration for a 114–154 (May 16, 2016), by amending
truthfully admitting the conduct comprising reduction under § 3E1.1(a). § 2B5.3 (Criminal Infringement of
the offense(s) of conviction, and truthfully An issue for comment is also Copyright or Trademark).
admitting or not falsely denying any provided. Part B responds to the International
additional relevant conduct for which the Megan’s Law to Prevent Child
defendant is accountable under § 1B1.3 Proposed Amendment Exploitation and Other Sexual Crimes
(Relevant Conduct). Note that a defendant is The Commentary to § 3E1.1 captioned Through Advanced Notification of
not required to volunteer, or affirmatively ‘‘Application Notes’’ is amended in Traveling Sex Offenders Act, Pub. L.
admit, relevant conduct beyond the offense Note 1(A) by striking ‘‘However, a 114–119 (Feb. 8, 2016), by amending
of conviction in order to obtain a reduction
under subsection (a). A defendant may
defendant who falsely denies, or § 2A3.5 (Failure to Register as a Sex
remain silent in respect to relevant conduct frivolously contests, relevant conduct Offender), § 2A3.6 (Aggravated Offenses
beyond the offense of conviction without that the court determines to be true has Relating to Registration as a Sex
affecting his ability to obtain a reduction acted in a manner inconsistent with Offender), and Appendix A (Statutory
under this subsection. However, a defendant acceptance of responsibility’’ and Index).
who falsely denies, or frivolously contests, inserting the following: ‘‘In addition, a Part C responds to the Frank R.
relevant conduct that the court determines to defendant who makes a non-frivolous Lautenberg Chemical Safety for the 21st
be true has acted in a manner inconsistent challenge to relevant conduct is not Century Act, Pub. L. 114–182 (June 22,
with acceptance of responsibility;
precluded from consideration for a 2016), by amending Appendix A
In addition, Application Note 3 reduction under subsection (a)’’. (Statutory Index).
provides further guidance on evidence Part D amends § 2G1.3 (Promoting a
that might demonstrate acceptance of Issue for Comment Commercial Sex Act or Prohibited
responsibility, as follows: 1. The Commission seeks comment on Sexual Conduct with a Minor;
Entry of a plea of guilty prior to the whether the Commission should amend Transportation of Minors to Engage in a
commencement of trial combined with the Commentary to § 3E1.1 (Acceptance Commercial Sex Act or Prohibited
truthfully admitting the conduct comprising of Responsibility) to change or clarify Sexual Conduct; Travel to Engage in
the offense of conviction, and truthfully how a defendant’s challenge to relevant Commercial Sex Act or Prohibited
admitting or not falsely denying any conduct should be considered in Sexual Conduct with a Minor; Sex
additional relevant conduct for which he is determining whether a defendant has Trafficking of Children; Use of Interstate
accountable under § 1B1.3 (Relevant
accepted responsibility for purposes of Facilities to Transport Information
Conduct) (see Application Note 1(A)), will
constitute significant evidence of acceptance § 3E1.1? If so, what changes should the about a Minor) to clarify how the use of
of responsibility for the purposes of Commission make to § 3E1.1? a computer enhancement at subsection
subsection (a). However, this evidence may For example, the proposed (b)(3) interacts with its correlating
amendment would provide that a
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be outweighed by conduct of the defendant commentary.
that is inconsistent with such acceptance of defendant who makes a non-frivolous
responsibility. A defendant who enters a challenge to relevant conduct is not (A) Transnational Drug Trafficking Act
guilty plea is not entitled to an adjustment precluded from consideration for a of 2015
under this section as a matter of right. reduction under § 3E1.1(a). What Synopsis of Proposed Amendment:
The Commission has heard concerns additional guidance, if any, should the Part A of the proposed amendment
that the Commentary to § 3E1.1 Commission provide on what responds to the Transnational Drug
(particularly the provisions cited above) constitutes ‘‘a non-frivolous challenge to Trafficking Act of 2015, Pub. L. 114–154
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![92016 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Notices
(May 16, 2016). The primary purpose of (B) a spurious designation that is of the sex offender outside of the United
the Act is to enable the Department of identical with, or substantially States, including any anticipated dates
Justice to target extraterritorial drug indistinguishable from, a designation as and places of departure, arrival or
trafficking activity. Among other things, to which the remedies of the Lanham return, carrier and flight numbers for air
the Act clarified the mens rea Act are made available by reason of travel, destination country and address
requirement for offenses related to section 220506 of title 36 . . . . or other contact information therein,
trafficking in counterfeit drugs, without Part A of the proposed amendment means and purpose of travel, and any
changing the statutory penalties amends § 2B5.3(b)(5) to replace the term other itinerary or other travel-related
associated with such offenses. The Act ‘‘counterfeit drug’’ with ‘‘drug that uses information required by the Attorney
amended 18 U.S.C. 2230 (Trafficking in a counterfeit mark on or in connection General.’’
Counterfeit Goods or Services), which with the drug.’’ The proposed The International Megan’s Law also
prohibits trafficking in a range of goods amendment would also amend the added a new criminal offense at 18
and services, including counterfeit Commentary to § 2B5.3 to delete the U.S.C. 2250(b) (Failure to register). The
drugs. The amended statute is currently ‘‘counterfeit drug’’ definition and new subsection (b) provides that
referenced in Appendix A (Statutory provide that ‘‘drug’’ and ‘‘counterfeit whoever is required to register under
Index) of the Guidelines Manual to mark’’ have the meaning given those SORNA who knowingly fails to provide
§ 2B5.3 (Criminal Infringement of terms in 18 U.S.C. 2320(f). the above described information
Copyright or Trademark). required by SORNA relating to intended
In particular, the Act made changes Proposed Amendment travel in foreign commerce and who
relating to counterfeit drugs. First, the Section 2B5.3(b)(5) is amended by engages or attempts to engage in the
Act amended the penalty provision at striking ‘‘counterfeit drug’’ and inserting intended travel, is subject to a 10 year
section 2320, replacing the term ‘‘drug that uses a counterfeit mark on or statutory maximum penalty. Section
‘‘counterfeit drug’’ with the phrase in connection with the drug’’. 2250 offenses are referenced in
‘‘drug that uses a counterfeit mark on or The Commentary to § 2B5.3 captioned Appendix A (Statutory Index) to § 2A3.5
in connection with the drug.’’ Second, ‘‘Application Notes’’ is amended in (Failure to Register as a Sex Offender).
the Act revised section 2320(f)(6) to Note 1 by striking the third Part B of the proposed amendment
define only the term ‘‘drug’’ instead of undesignated paragraph as follows: amends Appendix A (Statutory Index)
‘‘counterfeit drug.’’ The amended ‘‘‘Counterfeit drug’ has the meaning so the new offenses at 18 U.S.C. 2250(b)
provision defines ‘‘drug’’ as ‘‘a drug, as given that term in 18 U.S.C. 2320(f)(6).’’, are referenced to § 2A3.5. The proposed
defined in section 201 of the Federal amendment also brackets the possibility
and by inserting after the paragraph that
Food, Drug, and Cosmetic Act (21 U.S.C. of adding a new application note to the
begins ‘‘‘Counterfeit military good or
321).’’ The Act did not amend the Commentary to § 2A3.5 providing that
service’ has the meaning’’ the following
definition of ‘‘counterfeit mark’’ for purposes of § 2A3.5(b), a defendant
new paragraph:
contained in section 2230(f)(1), which shall be deemed to be in a ‘‘failure to
provides that— ‘‘‘Drug’ and ‘counterfeit mark’ have
register status’’ during the period in
the term ‘‘counterfeit mark’’ means— the meaning given those terms in 18
which the defendant engaged in
(A) a spurious mark— U.S.C. 2320(f).’’.
conduct described in 18 U.S.C. 2250(a)
(i) that is used in connection with (B) International Megan’s Law to or (b).
trafficking in any goods, services, labels, Prevent Child Exploitation and Other Finally, Part B makes clerical changes
patches, stickers, wrappers, badges, Sexual Crimes Through Advanced to § 2A3.6 (Aggravated Offenses Relating
emblems, medallions, charms, boxes, Notification of Traveling Sex Offenders to Registration as a Sex Offender) to
containers, cans, cases, hangtags, reflect the redesignation of 18
documentation, or packaging of any Synopsis of Proposed Amendment:
U.S.C.§ 2250(c) by the International
type or nature; Part B of the proposed amendment
Megan’s Law.
(ii) that is identical with, or responds to the International Megan’s
substantially indistinguishable from, a Law to Prevent Child Exploitation and Proposed Amendment
mark registered on the principal register Other Sexual Crimes Through Advanced The Commentary to § 2A3.5 captioned
in the United States Patent and Notification of Traveling Sex Offenders ‘‘Statutory Provisions’’ is amended by
Trademark Office and in use, whether or Act (‘‘International Megan’s Law’’), Pub. striking ‘‘§ 2250(a)’’ and inserting
not the defendant knew such mark was L. 114–119 (Feb. 8, 2016). The Act ‘‘§ 2250(a), (b)’’.
so registered; added a new notification requirement to [The Commentary to § 2A3.5
(iii) that is applied to or used in 42 U.S.C. 16914 (Information required captioned ‘‘Application Notes’’ is
connection with the goods or services in [sex offender] registration). Section amended by redesignating Note 2 as
for which the mark is registered with 16914 states that sex offenders who are Note 3, and by inserting the following
the United States Patent and Trademark required to register under the Sex new Note 2:
Office, or is applied to or consists of a Offender Registration and Notification ‘‘2. Application of Subsection (b)(1).—
label, patch, sticker, wrapper, badge, Act (SORNA) must provide certain For purposes of subsection (b)(1), a
emblem, medallion, charm, box, information for inclusion in the sex defendant shall be deemed to be in a
container, can, case, hangtag, offender registry. Those provisions ‘failure to register status’ during the
documentation, or packaging of any include the offender’s name, Social period in which the defendant engaged
type or nature that is designed, Security number, address of all in conduct described in 18 U.S.C.
residences, name and address where the
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marketed, or otherwise intended to be 2250(a) or (b).’’.]
used on or in connection with the goods offender is an employee, the name and Section 2A3.6(a) is amended by
or services for which the mark is address where the offender is a student, striking ‘‘§ 2250(c)’’ and inserting
registered in the United States Patent license plate number and description of ‘‘§ 2250(d)’’.
and Trademark Office; and any vehicle. The International Megan’s The Commentary to § 2A3.6 captioned
(iv) the use of which is likely to cause Law added as an additional requirement ‘‘Statutory Provisions’’ is amended by
confusion, to cause mistake, or to that the sex offender must provide striking ‘‘2250(c)’’ and inserting
deceive; or ‘‘information relating to intended travel ‘‘2250(d)’’.
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![Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Notices 92017
The Commentary to § 2A3.6 captioned clarifies how the use of a computer minor or with a person who exercises
‘‘Statutory provisions is amended— enhancement at § 2G1.3(b)(3) interacts custody, care, or supervisory control of
in Note 1 by striking ‘‘Section 2250(c)’’ with its corresponding commentary at the minor.[‘]. . . . But the note is wrong.
and inserting ‘‘Section 2250(d)’’, and Application Note 4. Section 2G1.3 The guideline section provides a 2-level
by inserting after ‘‘18 U.S.C. 2250(a)’’ (Promoting a Commercial Sex Act or enhancement whenever the defendant
the following: ‘‘or (b)’’; Prohibited Sexual Conduct with a uses a computer to ‘entice, encourage,
in Note 3 by striking ‘‘§ 2250(c)’’ and Minor; Transportation of Minors to offer, or solicit a person to engage in
inserting ‘‘§ 2250(d)’’; Engage in a Commercial Sex Act or prohibited sexual conduct with the
and in Note 4 by striking ‘‘§ 2250(c)’’ Prohibited Sexual Conduct; Travel to minor. . . . When an application note
and inserting ‘‘§ 2250(d)’’. Engage in Commercial Sex Act or clashes with the guideline, the guideline
Appendix A (Statutory Index) is Prohibited Sexual Conduct with a prevails.’’); United States v. Hill, 783
amended in the line referenced to 18 Minor; Sex Trafficking of Children; Use F.3d 842, 846 (11th Cir. 2015) (‘‘Because
U.S.C. 2250(a) by striking ‘‘§ 2250(a)’’ of Interstate Facilities to Transport the application note is inconsistent with
and inserting ‘‘§ 2250(a), (b)’’; and in the Information about a Minor) applies to the plain language of U.S.S.G.
line referenced to 18 U.S.C. 2250(c) by several offenses involving the § 2G1.3(b)(3)(B), the plain language of
striking ‘‘§ 2250(c)’’ and inserting transportation of a minor for illegal the guideline controls.’’); United States
‘‘§ 2250(d)’’. sexual activity. Subsection (b)(3) of v. Pringler, 765 F.3d 455 (5th Cir. 2014)
§ 2G1.3 provides a 2-level enhancement (‘‘[W]e hold that the commentary in
(C) Frank R. Lautenberg Chemical Safety if— application note 4 is ‘inconsistent with’
for the 21st Century Act the offense involved the use of a computer Guideline § 2G1.3(b)(3)(B), and we
Synopsis of Proposed Amendment: or an interactive computer service to (A) therefore follow the plain language of
Part C of the proposed amendment persuade, induce, entice, coerce, or facilitate the Guideline alone.’’).
responds to the Frank R. Lautenberg the travel of, the minor to engage in Part D of the proposed amendment
prohibited sexual conduct; or (B) entice, would amend the Commentary to
Chemical Safety for the 21st Century encourage, offer, or solicit a person to engage
Act, Pub. L. 114–182 (June 22, 2016). § 2G1.3 to clarify that the guidance
in prohibited sexual conduct with the minor. contained in Application Note 4 refers
The Act, among other things, amended
section 16 of the Toxic Substances Application Note 4 to § 2G1.3 sets only to subsection (b)(3)(A) and does
Control Act (15 U.S.C. 2615) to add a forth guidance on this enhancement not control the application of the
new subsection that provides that any providing as follows: enhancement for use of a computer in
person who knowingly and willfully Subsection (b)(3) is intended to apply only third party solicitation cases (as
violates certain provisions of the Toxic to the use of a computer or an interactive provided in subsection (b)(3)(B)).
Substances Control Act and who knows computer service to communicate directly
with a minor or with a person who exercises
Proposed Amendment
at the time of the violation that the custody, care, or supervisory control of the The Commentary to § 2G1.3 captioned
violation places an individual in minor. Accordingly, the enhancement in ‘‘Application Notes’’ is amended in
imminent danger of death or bodily subsection (b)(3) would not apply to the use Note 4 by striking ‘‘(b)(3)’’ each place
injury shall be subject to a fine up to of a computer or an interactive computer such term appears and inserting
$250,000, imprisonment of up to 15 service to obtain airline tickets for the minor
‘‘(b)(3)(A)’’.
years, or both. from an airline’s Internet site.
Part C of the proposed amendment An application issue has arisen as to 8. Marihuana Equivalency
amends Appendix A (Statutory Index) whether Application Note 4, by failing Synopsis of Proposed Amendment
so that the new provision, 15 U.S.C. to distinguish between the two prongs This proposed amendment makes
2615(b)(2) is referenced to § 2Q1.1 of subsection (b)(3), prohibits technical changes to § 2D1.1 (Unlawful
(Knowing Endangerment Resulting application of the enhancement where a Manufacturing, Importing, Exporting, or
From Mishandling Hazardous or Toxic computer was used to solicit a third Trafficking (Including Possession with
Substances, Pesticides or Other party to engage in prohibited sexual Intent to Commit These Offenses);
Pollutants), while maintaining the conduct with a minor. Attempt or Conspiracy) to replace the
reference to § 2Q1.2 (Mishandling of Most courts to have addressed this term ‘‘marihuana equivalency’’ which is
Hazardous or Toxic Substances or issue have concluded that Application used in the Drug Equivalency Tables
Pesticides; Recordkeeping, Tampering, Note 4 is inconsistent with the language when determining penalties for
and Falsification; Unlawfully of § 2G1.3(b)(3), and have permitted the controlled substances.
Transporting Hazardous Materials in application of the enhancement for use The Commentary to § 2D1.1 sets forth
Commerce) for 15 U.S.C. 2615(b)(1). of a computer in third party solicitation a series of Drug Equivalency Tables.
Proposed Amendment cases. See, e.g., United States v. Cramer, These tables provide a value termed
777 F.3d 597, 606 (2d Cir. 2015) (‘‘We ‘‘marihuana equivalency’’ for certain
Appendix A (Statutory Index) is conclude that Application Note 4 is controlled substances that is used to
amended— plainly inconsistent with subsection determine the offense level for cases in
in the line referenced to 15 U.S.C. (b)(3)(B). . . . The plain language of which the controlled substance
2615 by striking ‘‘§ 2615’’ and inserting subsection (b)(3)(B) is clear, and there is involved in the offense is not
‘‘§ 2615(b)(1)’’; no indication that the drafters of the specifically listed in the Drug Quantity
and by inserting before the line Guidelines intended to limit this plain Tables, or where there is more than one
referenced to 15 U.S.C. 6821 the language through Application Note 4.’’);
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controlled substance involved in the
following new line reference: United States v. McMillian, 777 F.3d offense (whether or not listed in the
‘‘15 U.S.C. 2615(b)(2) 2Q1.1’’. 444, 449–50 (7th Cir. 2015) (‘‘[The Drug Quantity Table). See § 2D1.1,
defendant] points out that Application comment. (n.8). The tables are separated
D) Use of a Computer Enhancement in Note 4 states that ‘Subsection (b)(3) is by drug type and schedule.
§ 2G1.3 intended to apply only to the use of a In a case involving a controlled
Synopsis of Proposed Amendment: computer or an interactive computer substance that is not specifically
Part D of the proposed amendment service to communicate directly with a referenced in the Drug Quantity Table,
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![92020 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Notices
‘‘equivalent weight’’ and inserting ketamine), by striking the heading as correct a typographical error in the line
‘‘converted weight’’; and by striking follows: referencing Pseudoephedrine;
‘‘79.99 kilograms of marihuana’’ and ‘‘Date Rape Drugs (except (3) subsection (e)(2) to § 2D1.11
inserting ‘‘79.99 kilograms of flunitrazepam, GHB, or ketamine)’’, (Unlawfully Distributing, Importing,
converted drug weight’’; and inserting the following new Exporting or Possessing a Listed
under the heading relating to Ketamine, heading: Chemical; Attempt or Conspiracy) to
by striking the heading as follows: ‘‘Date Rape Drugs Converted Drug correct a punctuation mark under the
‘‘Ketamine’’, (except Weight’’; heading relating to List I Chemicals;
flunitrazepam, (4) the Commentary to § 2M2.1
and inserting the following new GHB, or ketamine) (Destruction of, or Production of
heading:
and by striking ‘‘marihuana’’ each Defective, War Material, Premises, or
‘‘Ketamine Converted Drug Utilities) captioned ‘‘Statutory
Weight’’; place such term appears;
and in the text before the heading Provisions’’ to add a missing section
and by striking ‘‘of marihuana’’; relating to Measurement Conversion symbol and a reference to Appendix A
under the heading relating to Schedule Table, by striking ‘‘To facilitate (Statutory Index);
IV Substances (except flunitrazepam), conversions to drug equivalencies’’ and (5) the Commentary to § 2Q1.1
by striking the heading as follows: inserting ‘‘To facilitate conversions to (Knowing Endangerment Resulting
‘‘Schedule IV Substances (except converted drug weights’’. From Mishandling Hazardous or Toxic
flunitrazepam)*****’’, Substances, Pesticides or Other
9. Technical Amendment Pollutants) captioned ‘‘Statutory
and inserting the following new
heading: Synopsis of Amendment: This Provisions’’ to add a missing reference
proposed amendment makes various to 42 U.S.C. 7413(c)(5) and a reference
‘‘Schedule IV Sub- Converted Drug
technical changes to the Guidelines to Appendix A (Statutory Index);
stances (except Weight’’;
flunitrazepa- Manual. (6) the Commentary to § 2Q1.2
m)***** Part A of the proposed amendment (Mishandling of Hazardous or Toxic
makes certain clarifying changes to two Substances or Pesticides;
by striking ‘‘0.0625 gm of marihuana’’ guidelines. First, the proposed Recordkeeping, Tampering, and
and inserting ‘‘0.0625 gm’’; by striking amendment amends Chapter One, Part Falsification; Unlawfully Transporting
‘‘equivalent weight’’ and inserting A, Subpart 1(4)(b) (Departures) to Hazardous Materials in Commerce)
‘‘converted weight’’; and by striking provide an explanatory note addressing captioned ‘‘Statutory Provisions’’ to add
‘‘9.99 kilograms of marihuana’’ and the fact that § 5K2.19 (Post-Sentencing a specific reference to 42 U.S.C.
inserting ‘‘9.99 kilograms of converted Rehabilitative Efforts) was deleted by 7413(c)(1)–(4);
drug weight’’; Amendment 768, effective November 1, (7) the Commentary to § 2Q1.3
under the heading relating to Schedule 2012. Second, the proposed amendment (Mishandling of Other Environmental
V Substances, by striking the heading makes minor clarifying changes to Pollutants; Recordkeeping, Tampering,
as follows: Application Note 2(A) to § 2B1.1 (Theft, and Falsification) captioned ‘‘Statutory
‘‘Schedule V Substances******’’, Property Destruction, and Fraud), to Provisions’’ to add a specific reference
and inserting the following new make clear that, for purposes of to 42 U.S.C. 7413(c)(1)–(4);
heading: subsection (a)(1)(A), an offense is (8) subsection (a)(4) to § 5D1.3.
‘‘referenced to this guideline’’ if § 2B1.1 (Conditions of Supervised Release) to
‘‘Schedule V Sub- Converted Drug
stances****** Weight’’; is the applicable Chapter Two guideline change an inaccurate reference to
specifically referenced in Appendix A ‘‘probation’’ to ‘‘supervised release’’;
by striking ‘‘0.00625 gm of marihuana’’ and
and inserting ‘‘0.00625 gm’’; by (Statutory Index) for the offense of
conviction. (9) the lines referencing ‘‘18 U.S.C.
striking ‘‘equivalent weight’’ and 371’’ and ‘‘18 U.S.C. 1591’’ in Appendix
Part B of the proposed amendment
inserting ‘‘converted weight’’; and by A (Statutory Index) to rearrange the
makes technical changes in §§ 2Q1.3
striking ‘‘2.49 kilograms of order of certain Chapter Two guidelines
(Mishandling of Other Environmental
marihuana’’ and inserting ‘‘2.49 references to place them in proper
Pollutants; Recordkeeping, Tampering,
kilograms of converted drug weight’’; numerical order.
under the heading relating to List I and Falsification), 2R1.1 (Bid-Rigging,
Chemicals (relating to the Price-Fixing or Market-Allocation Proposed Amendment:
manufacture of amphetamine or Agreements Among Competitors), 4A1.2
(A) Clarifying Changes
methamphetamine), by striking the (Definitions and Instructions for
Computing Criminal History), and 4B1.4 Chapter One, Part A is amended in
heading as follows: Subpart 1(4)(b) (Departures) by inserting
(Armed Career Criminal), to correct title
‘‘List I Chemicals (relating to the references to § 4A1.3 (Departures Based an asterisk after ‘‘§ 5K2.19 (Post-
manufacture of amphetamine or on Inadequacy of Criminal History Sentencing Rehabilitative Efforts)’’, and
methamphetamine)*******’’, Category (Policy Statement)). by inserting at the end [of the first
and inserting the following new Part C of the proposed amendment paragraph] the following:
heading: makes clerical changes to— ‘‘*Note: Section 5K2.19 (Post-
‘‘List I Chemicals (re- Converted Drug (1) the Commentary to § 1B1.13 Sentencing Rehabilitative Efforts) was
lating to the manu- Weight’’; (Reduction in Term of Imprisonment deleted by Amendment 768, effective
November 1, 2012. (See USSG App. C,
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facture of amphet- Under 18 U.S.C. 3582(c)(1)(A) (Policy
amine or meth- Statement)) to correct a typographical amendment 768.)’’;
amphet- error by inserting a missing word in and in the note at the end of Subpart
amine)*******
Application Note 4; 1(4)(d) (Probation and Split Sentences)
and by striking ‘‘of marihuana’’ each (2) subsection (d)(6) to § 2D1.11 by striking ‘‘Supplement to Appendix
place such term appears; (Unlawfully Distributing, Importing, C’’ and inserting ‘‘USSG App. C’’.
under the heading relating to Date Rape Exporting or Possessing a Listed The Commentary to § 2B1.1 captioned
Drugs (except flunitrazepam, GHB, or Chemical; Attempt or Conspiracy) to ‘‘Application Notes’’ is amended in
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![Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Notices 92021
Note 2(A)(i) by striking ‘‘as determined The Commentary to § 2Q1.1 captioned ADDRESSES: All written comment should
under the provisions of § 1B1.2 ‘‘Statutory Provisions’’ is amended by be sent to the Commission by electronic
(Applicable Guidelines) for the offense striking ‘‘42 U.S.C. 6928(e)’’ and mail or regular mail. The email address
of conviction’’ and inserting the inserting ‘‘42 U.S.C. 6928(e), for public comment is Public_
following: ‘‘specifically referenced in 7413(c)(5)’’, and by inserting at the end Comment@ussc.gov. The regular mail
Appendix A (Statutory Index) for the the following: ‘‘For additional statutory address for public comment is United
offense of conviction, as determined provision(s), see Appendix A (Statutory States Sentencing Commission, One
under the provisions of § 1B1.2 Index).’’. Columbus Circle NE., Suite 2–500,
(Applicable Guidelines)’’. The Commentary to § 2Q1.2 captioned Washington, DC 20002–8002, Attention:
‘‘Statutory Provisions’’ is amended by Public Affairs.
(B) Title References to § 4A1.3 striking ‘‘7413’’ and inserting FOR FURTHER INFORMATION CONTACT:
The Commentary to § 2Q1.3 captioned ‘‘7413(c)(1)–(4)’’. Christine Leonard, Director, Office of
‘‘Application Notes’’ is amended in The Commentary to § 2Q1.3 captioned Legislative and Public Affairs, (202)
Note 8 by striking ‘‘Adequacy of ‘‘Statutory Provisions’’ is amended by 502–4500, pubaffairs@ussc.gov.
Criminal History Category’’ and striking ‘‘7413’’ and inserting SUPPLEMENTARY INFORMATION: The
inserting ‘‘Departures Based on ‘‘7413(c)(1)–(4)’’. United States Sentencing Commission is
Inadequacy of Criminal History Section 5D1.3(a)(4) is amended by an independent agency in the judicial
Category (Policy Statement)’’. striking ‘‘release on probation’’ and branch of the United States
The Commentary to § 2R1.1 captioned inserting ‘‘release on supervised Government. The Commission
‘‘Application Notes’’ is amended in release’’. promulgates sentencing guidelines and
Note 7 by striking ‘‘Adequacy of Appendix A (Statutory Index) is policy statements for federal courts
Criminal History Category’’ and amended in the line referenced to 18 pursuant to 28 U.S.C. 994(a). The
inserting ‘‘Departures Based on U.S.C. 371 by rearranging the guidelines Commission also periodically reviews
Inadequacy of Criminal History to place them in proper order, and in and revises previously promulgated
Category (Policy Statement)’’. the line referencing 18 U.S.C. 1591 by guidelines pursuant to 28 U.S.C. 994(o)
Section 4A1.2 is amended in rearranging the guidelines to place them and submits guideline amendments to
subsections (h) through (j) by striking in proper order. the Congress not later than the first day
‘‘Adequacy of Criminal History [FR Doc. 2016–30493 Filed 12–16–16; 8:45 am] of May each year pursuant to 28 U.S.C.
Category’’ each place such term appears BILLING CODE 2210–40–P 994(p).
and inserting ‘‘Departures Based on In August 2016, the Commission
Inadequacy of Criminal History indicated that one of its priorities would
Category (Policy Statement)’’. UNITED STATES SENTENCING be the ‘‘[s]tudy of offenses involving
The Commentary to § 4A1.2 captioned COMMISSION MDMA/Ecstasy, synthetic cannabinoids
‘‘Application Notes’’ is amended in (such as JWH–018 and AM–2201), and
Notes 6 and 8 by striking ‘‘Adequacy of Sentencing Guidelines for United synthetic cathinones (such as
Criminal History Category’’ both places States Courts Methylone, MDPV, and Mephedrone),
such term appears and inserting and consideration of any amendments
‘‘Departures Based on Inadequacy of AGENCY: United States Sentencing
Commission. to the Guidelines Manual that may be
Criminal History Category (Policy appropriate in light of the information
Statement)’’. ACTION: Request for public comment.
obtained from such study.’’ See 81 FR
The Commentary to § 4B1.4 captioned 58004 (Aug. 24, 2016). The Commission
SUMMARY: In August 2016, the
‘‘Background’’ is amended by striking intends that this study will be
Commission indicated that one of its
‘‘Adequacy of Criminal History conducted over a two-year period and
priorities would be the ‘‘[s]tudy of
Category’’ and inserting ‘‘Departures will solicit input, several times during
offenses involving MDMA/Ecstasy,
Based on Inadequacy of Criminal this period, from experts and other
synthetic cannabinoids (such as JWH–
History Category (Policy Statement)’’. members of the public. The Commission
018 and AM–2201), and synthetic
(C) Clerical Changes cathinones (such as Methylone, MDPV, further intends that in the amendment
and Mephedrone), and consideration of cycle ending May 1, 2018, it may, if
The Commentary to § 1B1.13
any amendments to the Guidelines appropriate, publish a proposed
captioned ‘‘Application Notes’’ is
Manual that may be appropriate in light amendment as a result of the study.
amended in Note 4 by striking ‘‘factors
of the information obtained from such MDMA, Synthetic Cathinones, and
set forth 18 U.S.C. 3553(a)’’ and
study.’’ See 81 FR 58004 (Aug. 24, Synthetic Cannabinoids.—As part of the
inserting ‘‘factors set forth in 18 U.S.C.
2016). As part of its statutory authority study related to this policy priority, the
3553(a)’’.
and responsibility to analyze sentencing Commission intends to examine
Section 2D1.11 is amended in
issues, including operation of the offenses involving the following
subsection (d)(6) by striking
federal sentencing guidelines, the controlled substances:
‘‘Pseuodoephedrine’’ and inserting Synthetic Cathinones
‘‘Pseudoephedrine’’; United States Sentencing Commission is
publishing this issue for comment to • MDPV (Methylenedioxypyrovalerone)
and in subsection (e)(2), under the • Methylone (3,4-Methylenedioxy-N-
heading relating to List I Chemicals, by inform the Commission’s consideration
Methylcathinone)
striking the period at the end and of the issues related to this policy
• Mephedrone (4-Methylmethcathinone
priority. The issue for comment is set
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inserting a semicolon. (4–MMC))
The Commentary to § 2M2.1 forth in the Supplementary Information Synthetic Cannabinoids
captioned ‘‘Statutory Provisions’’ is portion of this notice. • JWH-018 (1-Pentyl-1-3-1-(1-
amended by striking ‘‘§ 2153’’ and DATES: Public comment regarding the Naphthoyl)Indole)
inserting ‘‘§§ 2153’’, and by inserting at issue for comment set forth in this • AM-2201 (1-(5-Fluoropenty1)-3-(1-
the end the following: ‘‘For additional notice should be received by the Naphthoyl)Indole)
statutory provision(s), see Appendix A Commission not later than March 10, MDMA/Ecstasy (3,4-Methylenedioxy-
(Statutory Index).’’. 2017. Methamphetamine)
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Document Created: 2016-12-17 03:15:22
Document Modified: 2016-12-17 03:15:22
| 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. Notice of 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 February 20, 2017. Written reply comments, which may only respond to issues raised in the original comment period, should be received by the Commission on March 10, 2017. Public comment regarding a proposed amendment received after the close of the comment period, and reply comment received on issues not raised in the original comment period, may not be considered. | |
| Contact | Christine Leonard, Director, Office of Legislative and Public Affairs, (202) 502-4500, [email protected] | |
| FR Citation | 81 FR 92003 |
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