82 FR 40651 - Sentencing Guidelines for United States Courts
UNITED STATES SENTENCING COMMISSION Federal Register Volume 82, Issue 164 (August 25, 2017)
Federal Register Volume 82, Issue 164 (August 25, 2017)
| Page Range | 40651-40666 | |
| FR Document | 2017-18076 |
[Federal Register Volume 82, Number 164 (Friday, August 25, 2017)] [Notices] [Pages 40651-40666] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-18076] ----------------------------------------------------------------------- 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 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 several 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 section 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 October 10, 2017. Written reply comments, which may only respond to issues raised in the original comment period, should be received by the Commission not later than November 6, 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). 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). 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. In summary, the proposed amendments and issues for comment set forth in this notice are as follows: (1) 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; (2) a multi-part proposed amendment relating to the findings and recommendations contained in the May 2016 Report of 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, and 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 a related issue for comment; (3) 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) revising Chapter Five to (i) amend the Sentencing Table in Chapter Five, Part A to expand Zone B by consolidating Zones B and C and (ii) amend the Commentary to Sec. 5F1.2 (Home Detention) to revise language requiring electronic monitoring, and related issues for comment. (4) a proposed amendment to the Commentary to Sec. 3E1.1 (Acceptance of Responsibility) setting forth options to revise how a defendant's challenge to relevant conduct should be considered in determining whether the defendant has accepted responsibility for purposes of the guideline, and a related issue for comment; (5) a multi-part proposed amendment to the Guidelines Manual to respond to recently enacted legislation and [[Page 40652]] 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); (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); and (E) amending Sec. 5D1.3 (Conditions of Supervised Release) to respond to changes made by the Justice for All Reauthorization Act of 2016, Public Law 114-324 (Dec. 16, 2016). (6) 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 ``marihuana equivalency'' as the conversion factor in the Drug Equivalency Tables for determining penalties for certain controlled substances; (7) 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. In addition, 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. The text of the proposed amendments and related issues for comment are set forth below. 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. William H. Pryor, Jr., Acting Chair. Proposed Amendments to the Sentencing Guidelines, Policy Statements, and Official Commentary 1. Bipartisan Budget Act Synopsis of Proposed Amendment: This proposed amendment responds to the Bipartisan Budget Act of 2015, Public Law 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 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 a person 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), 1011(a), or 1383a(a) and the statutory maximum term of ten years' imprisonment applies. [[Page 40653]] 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), 1011(a), or 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 a person 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, 1011, or 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), 1011(a), or 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), 1011(a), or 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), 1011(a), or 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), 1011(a), or 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), 1011(a), or 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 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)? 2. Tribal Issues Synopsis of Proposed Amendment: This proposed amendment is the result of the Commission's study of the May 2016 Report of the Commission's Tribal Issues Advisory Group. See U.S. Sentencing Comm'n, ``Notice of Final Priorities,'' 82 FR 39949 (Aug. 22, 2017). 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. 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 [[Page 40654]] 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 points and how the guidelines should account for protection orders issued by tribal courts. The proposed amendment contains two parts (Parts A and B). The Commission is considering whether to promulgate one or both of these parts, as they are not 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), Public Law 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), Public Law 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 statutes 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, 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, and 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 order'' 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 [[Page 40655]] (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). An issue for comment is 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, Public Law 111-211 (July 29, 2010), and the Violence Against Women Reauthorization Act of 2013, Public Law 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. Part A of 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, Part A of 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 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 same as other sentences imposed for federal, state, and local offenses that may be used to compute criminal history points? Should the guidelines treat sentences resulting from tribal court convictions more akin to military sentences and distinguish 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): [[Page 40656]] ``(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).''. Issue for Comment 1. Part B of 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) and consistent with 18 U.S.C. 2265(b). Is this definition appropriate? If not, what definition, if any, should the Commission provide? 3. 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 mutually exclusive. (A) First Offenders Part A of the proposed amendment is primarily informed by the Commission's multi-year study of recidivism, including the circumstances that correlate with increased or reduced recidivism. See U.S. Sentencing Comm'n, ``Notice of Final Priorities,'' 82 FR 39949 (Aug. 22, 2017). It is also informed by the Commission's continued study 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 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. Sentencing 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). Part A of the proposed amendment provides two options for defining a ``first offender'' who would be eligible for a decrease in offense level under the new guideline. Option 1 defines a defendant as a ``first offender'' if the defendant did not receive any criminal history points from Chapter Four, Part A. Option 2 defines a defendant as a ``first offender'' if the defendant has no prior convictions of any kind. Part A also provides two options for the decrease in offense level that would apply to a first offender. 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 alternatives to incarceration. See U.S. Sentencing Comm'n, ``Notice of Final Priorities,'' 82 FR 39949 (Aug. 22, 2017). 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 [[Page 40657]] 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 [Definition of ``First Offender'' [Option 1: (a) A defendant is a first offender if the defendant did not receive any criminal history points from Chapter Four, Part A.] [Option 2: (a) A defendant is a first offender if the defendant has no prior convictions of any kind.]] [Decrease in Offense Level for First Offenders [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. 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. Part A of the proposed amendment provides two options for how to define ``first offender'' for purposes of applying the new Sec. 4C1.1 (First Offender). Option 1 defines a defendant as a ``first offender'' if the defendant did not receive any criminal history points from Chapter Four, Part A. Option 2 defines a defendant as a ``first offender'' if the defendant has no prior convictions of any kind. The Commission seeks comment on the proposed definition. Should the Commission adopt a broader definition than either Option 1 or Option 2? Should the Commission adopt a narrower definition than either option? Should the Commission adopt a definition that is narrower than Option 1 but broader than Option 2? For example, should the Commission define ``first offender'' as a defendant who did not receive any criminal history points from Chapter Four, Part A and has no prior felony convictions? Should the Commission instead define ``first offender'' as a defendant who either has no prior convictions of any kind or has only prior convictions that are not counted under Sec. 4A1.2 for a reason other than being too remote in time? 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 provides two options for the decrease in offense level that would apply to a first offender. One of the options, 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 [[Page 40658]] 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 the 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: ``(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)''. [[Page 40659]] 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 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? 4. Acceptance of Responsibility Synopsis of Proposed Amendment: This proposed amendment is the result of the Commission's consideration of miscellaneous guideline application issues, including whether a defendant's denial of relevant conduct should be considered in determining whether the defendant has accepted responsibility for purposes of Sec. 3E1.1. See U.S. Sentencing Comm'n, ``Notice of Final Priorities,'' 82 FR 39949 (Aug. 22, 2017). 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 a defendant's challenge to relevant conduct should be considered in determining whether the defendant has accepted responsibility for purposes of the guideline. Specifically, the proposed amendment would revise Application Note 1(A) by substituting a new sentence for 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 includes two options for the substitute. Option 1 would provide that ``a defendant may make a non-frivolous challenge to relevant conduct without affecting his ability to obtain a reduction.'' Option 2 would provide that ``a defendant may make a challenge to relevant conduct without affecting his ability to obtain a reduction, unless the challenge lacks an arguable basis either in law or in fact.'' 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: [Option 1: ``In addition, a defendant may make a non-frivolous challenge to relevant conduct without affecting his ability to obtain a reduction''.] [Option 2: ``In addition, a defendant may make a challenge to relevant conduct without affecting his ability to obtain a reduction, unless the challenge lacks an arguable basis either in law or in fact''.] 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 [[Page 40660]] Sec. 3E1.1. If so, what changes should the Commission make to Sec. 3E1.1? One of the options included in the proposed amendment, Option 1, would provide that ``a defendant may make a non-frivolous challenge to relevant conduct without affecting his ability to obtain a reduction'' under Sec. 3E1.1(a). If the Commission were to adopt Option 1, what additional guidance, if any, should the Commission provide on the meaning of ``non-frivolous''? The second option included in the proposed amendment, Option 2, would provide that ``a defendant may make a challenge to relevant conduct without affecting his ability to obtain a reduction, unless the challenge lacks an arguable basis either in law or in fact.'' If the Commission were to adopt Option 2, should the Commission provide additional guidance on when a challenge ``lacks an arguable basis either in law or in fact''? For example, should the Commission state explicitly that the fact that a challenge is unsuccessful does not by itself establish that the challenge lacked an arguable basis either in law or in fact? If the Commission were to adopt either Option 1 or Option 2, should the challenges covered by the amendment 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 address other sentencing considerations, such as departures or variances? Should the Commission, instead of adopting either option in the proposed amendment, 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? 5. Miscellaneous Synopsis of Proposed Amendment: This proposed amendment responds to recently enacted legislation and miscellaneous guideline issues. The proposed amendment contains five parts (Parts A through E). The Commission is considering whether to promulgate any or all of these parts, as they are not mutually exclusive. They are as follows-- Part A responds to the Transnational Drug Trafficking Act of 2015, Public Law 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, Public Law 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, Public Law 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. Part E responds to the Justice for All Reauthorization Act of 2016, Public Law 114-324 (Dec. 16, 2016), by amending Sec. 5D1.3 (Conditions of Supervised Release). (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, Public Law 114-154 (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).''. [[Page 40661]] (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''), Public Law 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. 2250(c) by the International Megan's Law. Proposed Amendment The Commentary to Sec. 2A3.5 captioned ``Statutory Provision'' 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)''. The Commentary to Sec. 2A3.6 captioned ``Application Notes'' 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, Public Law 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 [[Page 40662]] 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 445, 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)''. (E) Justice for All Reauthorization Act of 2016 Synopsis of Proposed Amendment: Part E of the proposed amendment responds to the Justice for All Reauthorization Act of 2016, Public Law 114-324 (Dec. 16, 2016). The Act made statutory changes to protect the rights of crime victims and to address the use of DNA and other forensic evidence. Among other things, the Act amended 18 U.S.C. 3583, the statute addressing supervised release. Section 3583(d) requires a court, when imposing a sentence of supervised release, to impose certain specified conditions of supervised release. The Act amended section 3583(d) to require the court to include, as one of those conditions, ``that the defendant make restitution in accordance with sections 3663 and 3663A [of Title 18, United States Code], or any other statute authorizing a sentence of restitution.'' Part E of the proposed amendment amends the ``mandatory'' condition of supervised release set forth in subsection (a)(6)(A) of Sec. 5D1.3 (Conditions of Supervised Release). It conforms Sec. 5D1.3(a)(6)(A) to section 3583(d) as amended by the Justice for All Reauthorization Act. Proposed Amendment Section 5D1.3(a)(6)(A) is amended by striking ``18 U.S.C. 2248, 2259, 2264, 2327, 3663, 3663A, and 3664'' and inserting ``18 U.S.C. 3663 and 3663A, or any other statute authorizing a sentence of restitution''. 6. 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 certain controlled substances. The Commentary to Sec. 2D1.1 sets forth a series of Drug Equivalency Tables. These tables provide a conversion factor 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 Table, 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 Drug Equivalency 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, 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, some commenters suggested that the Commission should replace ``marihuana equivalency'' with another term. The proposed amendment would amend Sec. 2D1.1 to replace ``marihuana equivalency'' as the conversion factor for determining penalties for controlled substances that are not specifically referenced in the Drug Quantity Table or when combining differing controlled substances, with a new value termed ``converted drug weight.'' Specifically, the proposed amendment would add the new conversion factor to all provisions of the Drug Quantity Table at Sec. 2D1.1(c). In addition, the proposed amendment would change the title of the ``Drug Equivalency Tables'' to ``Drug Conversion Tables,'' and revise the commentary to Sec. 2D1.1 to change all references to marihuana as a conversion factor and replace it with the new value. All changes set forth in the proposed amendment are not intended as a substantive change in policy for Sec. 2D1.1. 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 [[Page 40663]] 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 ``Drug Equivalency'' and inserting ``Drug 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'' 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: [[Page 40664]] ``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 ``Drug Equivalency'' and inserting ``Drug 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 II Converted Drug Weight''; 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 II Converted Drug Weight''; 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 (except Converted Drug Weight''; 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 ``1 gm of marihuana'' and inserting ``1 gm''; by striking ``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, [[Page 40665]] 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 flunitrazepam, Converted Drug Weight''; 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''. 7. 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. (A) Clarifying Changes Proposed Amendment 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 after the first paragraph the following new paragraph: ``*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 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 Proposed Amendment 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), (i), and (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 Proposed Amendment 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 [[Page 40666]] 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 numerical order; and in the line referencing 18 U.S.C. 1591 by rearranging the guidelines to place them in proper numerical order. [FR Doc. 2017-18076 Filed 8-24-17; 8:45 am] BILLING CODE 2210-40-P
![Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices 40651
Authority: 28 U.S.C. 994(a), (o), (p), (x); scope of the hearing, will be provided suggestions on how the Commission
USSC Rules of Practice and Procedure 4.4. by the Commission on its Web site at should respond to those issues.
William H. Pryor, Jr., www.ussc.gov. In summary, the proposed
Acting Chair.
amendments and issues for comment set
ADDRESSES: All written comment should forth in this notice are as follows:
[FR Doc. 2017–18077 Filed 8–24–17; 8:45 am] be sent to the Commission by electronic (1) A multi-part proposed amendment
BILLING CODE 2210–40–P mail or regular mail. The email address to respond to the Bipartisan Budget Act
for public comment is Public_ of 2015, Public Law 114–74 (Nov. 2,
Comment@ussc.gov. The regular mail 2015), including (A) revisions to
UNITED STATES SENTENCING address for public comment is United Appendix A (Statutory Index), and a
COMMISSION States Sentencing Commission, One related issue for comment; and (B)
Columbus Circle NE., Suite 2–500, amending § 2B1.1 (Theft, Property
Sentencing Guidelines for United Washington, DC 20002–8002, Attention:
States Courts Destruction, and Fraud) to address new
Public Affairs. increased penalties for certain persons
AGENCY: United States Sentencing FOR FURTHER INFORMATION CONTACT: who commit fraud offenses under
Commission Christine Leonard, Director, Office of certain Social Security programs, and
ACTION: Notice of proposed amendments Legislative and Public Affairs, (202) related issues for comment;
to sentencing guidelines, policy 502–4500, pubaffairs@ussc.gov. (2) a multi-part proposed amendment
statements, and commentary. Request SUPPLEMENTARY INFORMATION: The
relating to the findings and
for public comment, including public United States Sentencing Commission is recommendations contained in the May
comment regarding retroactive 2016 Report of the Commission’s Tribal
an independent agency in the judicial
application of any of the proposed Issues Advisory Group, including (A)
branch of the United States
amendments. Notice of public hearing. amending the Commentary to § 4A1.3
Government. The Commission
(Departures Based on Inadequacy of
SUMMARY: The United States Sentencing promulgates sentencing guidelines and
Criminal History Category (Policy
Commission is considering policy statements for federal courts
Statement)) to set forth a non-exhaustive
promulgating amendments to the pursuant to 28 U.S.C. 994(a). The
list of factors for the court to consider
sentencing guidelines, policy Commission also periodically reviews
in determining whether, and to what
statements, and commentary. This and revises previously promulgated
extent, an upward departure based on a
notice sets forth the proposed guidelines pursuant to 28 U.S.C. 994(o)
tribal court conviction is appropriate,
amendments and, for each proposed and submits guideline amendments to and related issues for comment; and (B)
amendment, a synopsis of the issues the Congress not later than the first day amending the Commentary to § 1B1.1
addressed by that amendment. This of May each year pursuant to 28 U.S.C. (Application Instructions) to provide a
notice also sets forth several issues for 994(p). definition of ‘‘court protection order,’’
comment, some of which are set forth Publication of a proposed amendment and a related issue for comment;
together with the proposed requires the affirmative vote of at least (3) a multi-part proposed amendment
amendments, and one of which three voting members of the to Chapters Four (Criminal History and
(regarding retroactive application of Commission and is deemed to be a Criminal Livelihood) and Five
proposed amendments) is set forth in request for public comment on the (Determining the Sentence), including
the Supplementary Information section proposed amendment. See Rules 2.2 and (A) setting forth options for a new
of this notice. 4.4 of the Commission’s Rules of Chapter Four guideline, at § 4C1.1 (First
DATES: (1) Written Public Comment.— Practice and Procedure. In contrast, the Offenders), and amending § 5C1.1
Written public comment regarding the affirmative vote of at least four voting (Imposition of a Term of Imprisonment)
proposed amendments and issues for members is required to promulgate an to provide lower guideline ranges for
comment set forth in this notice, amendment and submit it to Congress. ‘‘first offenders’’ generally and increase
including public comment regarding See Rule 2.2; 28 U.S.C. 994(p). the availability of alternatives to
retroactive application of any of the The proposed amendments in this incarceration for such offenders at the
proposed amendments, should be notice are presented in one of two lower levels of the Sentencing Table,
received by the Commission not later formats. First, some of the amendments and related issues for comment; and (B)
than October 10, 2017. Written reply are proposed as specific revisions to a revising Chapter Five to (i) amend the
comments, which may only respond to guideline, policy statement, or Sentencing Table in Chapter Five, Part
issues raised in the original comment commentary. Bracketed text within a A to expand Zone B by consolidating
period, should be received by the proposed amendment indicates a Zones B and C and (ii) amend the
Commission not later than November 6, heightened interest on the Commentary to § 5F1.2 (Home
2017. Public comment regarding a Commission’s part in comment and Detention) to revise language requiring
proposed amendment received after the suggestions regarding alternative policy electronic monitoring, and related
close of the comment period, and reply choices; for example, a proposed issues for comment.
comment received on issues not raised enhancement of [2][4][6] levels indicates (4) a proposed amendment to the
in the original comment period, may not that the Commission is considering, and Commentary to § 3E1.1 (Acceptance of
be considered. invites comment on, alternative policy Responsibility) setting forth options to
(2) Public Hearing.—The Commission choices regarding the appropriate level revise how a defendant’s challenge to
may hold a public hearing regarding the of enhancement. Similarly, bracketed
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relevant conduct should be considered
proposed amendments and issues for text within a specific offense in determining whether the defendant
comment set forth in this notice. Further characteristic or application note means has accepted responsibility for purposes
information regarding any public that the Commission specifically invites of the guideline, and a related issue for
hearing that may be scheduled, comment on whether the proposed comment;
including requirements for testifying provision is appropriate. Second, the (5) a multi-part proposed amendment
and providing written testimony, as Commission has highlighted certain to the Guidelines Manual to respond to
well as the date, time, location, and issues for comment and invites recently enacted legislation and
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miscellaneous guideline issues, (Statutory Index), and to the U.S.C. 408, 1011, and 1383a,
including (A) amending § 2B5.3 Commentary of other guidelines. respectively).
(Criminal Infringement of Copyright or In addition, the Commission requests (A) Conspiracy To Commit Social
Trademark) to respond to changes made public comment regarding whether, Security Fraud
by the Transnational Drug Trafficking pursuant to 18 U.S.C. 3582(c)(2) and 28
Act of 2015, Public Law 114–154 (May U.S.C. 994(u), any proposed amendment The Bipartisan Budget Act of 2015
16, 2016); (B) amending § 2A3.5 (Failure published in this notice should be added new subdivisions prohibiting
to Register as a Sex Offender), § 2A3.6 included in subsection (d) of § 1B1.10 conspiracy to commit fraud for
(Aggravated Offenses Relating to (Reduction in Term of Imprisonment as substantive offenses already contained
Registration as a Sex Offender), and a Result of Amended Guideline Range in the three statutes (42 U.S.C. 408,
Appendix A (Statutory Index) to (Policy Statement)) as an amendment 1011, and 1383a). For each of the three
respond to changes made by the that may be applied retroactively to statutes, the new subdivision provides
International Megan’s Law to Prevent previously sentenced defendants. The that whoever ‘‘conspires to commit any
Child Exploitation and Other Sexual Commission lists in § 1B1.10(d) the offense described in any of [the]
Crimes Through Advanced Notification specific guideline amendments that the paragraphs’’ enumerated shall be
of Traveling Sex Offenders Act, Public court may apply retroactively under 18 imprisoned for not more than five years,
Law 114–119 (Feb. 8, 2016); (C) U.S.C. 3582(c)(2). The background the same statutory maximum penalty
revisions to Appendix A (Statutory commentary to § 1B1.10 lists the applicable to the substantive offense.
Index) to respond to a new offense purpose of the amendment, the The three amended statutes are
established by the Frank R. Lautenberg magnitude of the change in the currently referenced in Appendix A
Chemical Safety for the 21st Century guideline range made by the (Statutory Index) to § 2B1.1 (Theft,
Act, Public Law 114–182 (June 22, amendment, and the difficulty of Property Destruction, and Fraud). The
2016); (D) a technical amendment to applying the amendment retroactively proposed amendment would amend
§ 2G1.3 (Promoting a Commercial Sex to determine an amended guideline Appendix A so that sections 408, 1011,
Act or Prohibited Sexual Conduct with range under § 1B1.10(b) as among the and 1383a of Title 42 are referenced not
a Minor; Transportation of Minors to factors the Commission considers in only to § 2B1.1 but also to § 2X1.1
Engage in a Commercial Sex Act or selecting the amendments included in (Attempt, Solicitation, or Conspiracy
Prohibited Sexual Conduct; Travel to § 1B1.10(d). To the extent practicable, (Not Covered by a Specific Office
Engage in Commercial Sex Act or public comment should address each of Guideline)).
Prohibited Sexual Conduct with a these factors. An issue for comment is provided.
Minor; Sex Trafficking of Children; Use The text of the proposed amendments
of Interstate Facilities to Transport (B) Increased Penalties for Certain
and related issues for comment are set Individuals Violating Positions of Trust
Information about a Minor); and (E) forth below. Additional information
amending § 5D1.3 (Conditions of pertaining to the proposed amendments The Bipartisan Budget Act of 2015
Supervised Release) to respond to and issues for comment described in also amended sections 408, 1011, and
changes made by the Justice for All this notice may be accessed through the 1383a of Title 42 to add increased
Reauthorization Act of 2016, Public Law penalties for certain persons who
Commission’s Web site at
114–324 (Dec. 16, 2016). commit fraud offenses under the
www.ussc.gov.
(6) a proposed amendment to make relevant Social Security programs. The
technical changes to § 2D1.1 (Unlawful Authority: 28 U.S.C. 994(a), (o), (p), (x); Act included a provision in all three
Manufacturing, Importing, Exporting, or USSC Rules of Practice and Procedure 4.3,
4.4.
statutes identifying such a person as:
Trafficking (Including Possession with
a person who receives a fee or other
Intent to Commit These Offenses); William H. Pryor, Jr., income for services performed in
Attempt or Conspiracy) to replace Acting Chair. connection with any determination with
‘‘marihuana equivalency’’ as the
Proposed Amendments to the respect to benefits under this title
conversion factor in the Drug
Sentencing Guidelines, Policy (including a claimant representative,
Equivalency Tables for determining
Statements, and Official Commentary translator, or current or former
penalties for certain controlled
employee of the Social Security
substances; 1. Bipartisan Budget Act
(7) a proposed amendment to make Administration), or who is a physician
various technical changes to the Synopsis of Proposed Amendment: or other health care provider who
Guidelines Manual, including (A) an This proposed amendment responds to submits, or causes the submission of,
explanatory note in Chapter One, Part the Bipartisan Budget Act of 2015, medical or other evidence in connection
A, Subpart 1(4)(b) (Departures) and Public Law 114–74 (Nov. 2, 2015), with any such determination . . . .
clarifying changes to the Commentary to which, among other things, amended A person who meets this requirement
§ 2B1.1 (Theft, Property Destruction, three existing criminal statutes and is convicted of a fraud offense
and Fraud); (B) technical changes to concerned with fraudulent claims under under one of the three amended statutes
§ 4A1.2 (Definitions and Instructions for certain Social Security programs. may be imprisoned for not more than
Computing Criminal History) and to the The three criminal statutes amended ten years, double the otherwise
Commentary of other guidelines to by the Bipartisan Budget Act of 2015 are applicable five-year penalty for other
correct title references to § 4A1.3 sections 208 (Penalties [for fraud offenders. The new increased penalties
involving the Federal Old-Age and apply to all of the fraudulent conduct in
sradovich on DSK3GMQ082PROD with NOTICES
(Departures Based on Inadequacy of
Criminal History Category (Policy Survivors Insurance Trust Fund]), 811 subsection (a) of the three statutes.
Statement)); and (C) clerical changes to (Penalties for fraud [involving special The proposed amendment would
§ 2D1.11 (Unlawful Distributing, benefits for certain World War II amend § 2B1.1 to address cases in
Importing, Exporting or Possessing a veterans]), and 1632 (Penalties for fraud which the defendant was convicted
Listed Chemical; Attempt or [involving supplemental security under 42 U.S.C. 408(a), 1011(a), or
Conspiracy), § 5D1.3 (Conditions of income for the aged, blind, and 1383a(a) and the statutory maximum
Supervised Release), Appendix A disabled]) of the Social Security Act (42 term of ten years’ imprisonment applies.
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![Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices 40653
It provides an enhancement of [4][2] Skill).][Application of subsection (b)(13) (e.g., 18 U.S.C. 1341) for an offense
levels and a minimum offense level of does not preclude a defendant from involving conduct described in 42
[14][12] for such cases. It also adds consideration for an adjustment under U.S.C. 408(a), 1011(a), or 1383a(a).
Commentary specifying whether an § 3B1.3 (Abuse of Position of Trust or The Commission seeks comment on
adjustment under § 3B1.3 (Abuse of Use of Special Skill).]’’. whether the Commission should instead
Position of Trust or Use of Special Skill) amend § 2B1.1 to provide a general
Issues for Comment specific offense characteristic for such
applies — bracketing two possibilities:
if the enhancement applies, the 1. The Bipartisan Budget Act of 2015 cases. For example, should the
adjustment does not apply; and if the amended sections 408, 1011, and 1383a Commission provide an enhancement
enhancement applies, the adjustment is of Title 42 to include a provision in all for cases in which the offense involved
not precluded from applying. three statutes increasing the statutory conduct described in 42 U.S.C. 408(a),
Issues for comment are also provided. maximum term of imprisonment from 1011(a), or 1383a(a) and the defendant
five years to ten years for certain is a person ‘‘who receives a fee or other
(A) Conspiracy To Commit Social persons who commit fraud offenses income for services performed in
Security Fraud under subsection (a) of the three connection with any determination with
Proposed Amendment statutes. The Act identifies such a respect to benefits [covered by those
person as: statutory provisions] (including a
Appendix A (Statutory Index) is
a person who receives a fee or other claimant representative, translator, or
amended in the line referenced to 42
income for services performed in current or former employee of the Social
U.S.C. 408 by inserting ‘‘, 2X1.1’’ at the
connection with any determination with Security Administration), or who is a
end; in the line referenced to 42 U.S.C.
respect to benefits under this title physician or other health care provider
1011 by inserting ‘‘, 2X1.1’’ at the end;
(including a claimant representative, who submits, or causes the submission
and in the line referenced to 42 U.S.C.
translator, or current or former of, medical or other evidence in
1383a(a) by inserting ‘‘, 2X1.1’’ at the
employee of the Social Security connection with any such
end.
Administration), or who is a physician determination’’? If so, how many levels
Issue for Comment or other health care provider who would be appropriate for such an
1. Part A of the proposed amendment submits, or causes the submission of, enhancement? How should such an
would reference the new conspiracy medical or other evidence in connection enhancement interact with the existing
offenses under 42 U.S.C. 408, 1011, and with any such determination . . . . enhancements at § 2B1.1 and the
1383a to § 2X1.1 (Attempt, Solicitation, Chapter Three adjustment at § 3B1.3
The Commission seeks comment on
or Conspiracy (Not Covered by a (Abuse of Position of Trust or Use of
how, if at all, the guidelines should be
Specific Office Guideline)). The Special Skill)?
amended to address cases in which the
Commission invites comment on offense of conviction is 42 U.S.C. 408, 2. Tribal Issues
whether the guidelines covered by the 1011, or 1383a, and the statutory Synopsis of Proposed Amendment:
proposed amendment adequately maximum term of ten years’ This proposed amendment is the result
account for these offenses. If not, what imprisonment applies because the of the Commission’s study of the May
revisions to the guidelines would be defendant was a person described in 42 2016 Report of the Commission’s Tribal
appropriate to account for these U.S.C. 408(a), 1011(a), or 1383a(a). Are Issues Advisory Group. See U.S.
offenses? Should the Commission these cases adequately addressed by Sentencing Comm’n, ‘‘Notice of Final
reference these new offenses to other existing provisions in the guidelines, Priorities,’’ 82 FR 39949 (Aug. 22, 2017).
guidelines instead of, or in addition to, such as the adjustment in § 3B1.3 See also Report of the Tribal Issues
the guidelines covered by the proposed (Abuse of Position of Trust or Use of Advisory Group (May 16, 2016), at
amendment? Special Skill)? If so, as an alternative to http://www.ussc.gov/research/research-
(B) Increased Penalties for Certain the proposed amendment, should the publications/report-tribal-issues-
Individuals Violating Positions of Trust Commission amend § 2B1.1 only to advisory-group.
provide an application note that In 2015, the Commission established
Proposed Amendment expressly provides that, for a defendant the Tribal Issues Advisory Group (TIAG)
Section 2B1.1(b) is amended by subject to the ten years’ statutory as an ad hoc advisory group to the
redesignating paragraphs (13) through maximum in such cases, an adjustment Commission. Among other things, the
(19) as paragraphs (14) through (20), under § 3B1.3 ordinarily would apply? Commission tasked the TIAG with
respectively, and by inserting the If not, how should the Commission studying the following issues—
following new paragraph (13): amend the guidelines to address these (A) the operation of the federal
‘‘(13) If the defendant was convicted cases? sentencing guidelines as they relate to
under 42 U.S.C. 408(a), 1011(a), or 2. The proposed amendment would American Indian defendants and
1383a(a) and the statutory maximum amend § 2B1.1 to provide an victims and to offenses committed in
term of ten years’ imprisonment applies, enhancement and a minimum offense Indian Country, and any viable methods
increase by [4][2] levels. If the resulting level for cases in which the defendant for revising the guidelines to (i) improve
offense level is less than [14][12], was convicted under 42 U.S.C. 408(a), their operation or (ii) address particular
increase to level [14][12].’’. 1011(a), or 1383a(a) and the statutory concerns of tribal communities and
The Commentary to § 2B1.1 captioned maximum term of ten years’ courts;
imprisonment applies because the
sradovich on DSK3GMQ082PROD with NOTICES
‘‘Application Notes’’ is amended by (B) whether there are disparities in
redesignating Notes 11 through 20 as defendant was a person described in 42 the application of the federal sentencing
Notes 12 through 21, respectively, and U.S.C. 408(a), 1011(a), or 1383a(a). guidelines to American Indian
by inserting the following new Note 11: However, there may be cases in which defendants, and, if so, how to address
‘‘11. Interaction of Subsection (b)(13) a defendant, who meets the criteria set them;
and § 3B1.3.—[If subsection (b)(13) forth for the new statutory maximum (C) the impact of the federal
applies, do not apply § 3B1.3 (Abuse of term of ten years’ imprisonment, is sentencing guidelines on offenses
Position of Trust or Use of Special convicted under a general fraud statute committed in Indian Country in
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![40654 Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices
comparison with analogous offenses and infrastructure in tribal government, for courts to consider when determining
prosecuted in state courts and tribal and expanding the sentencing authority whether a departure is appropriate
courts; of tribal court systems. In 2013, the based on a defendant’s record of tribal
(D) the use of tribal court convictions Violence Against Women court convictions. The guidance
in the computation of criminal history Reauthorization Act of 2013 (VAWA recommended by the TIAG ‘‘collectively
scores, risk assessment, and for other Reauthorization), Public Law 113–4, . . . reflect[s] important considerations
purposes; was enacted to expand the criminal for courts to balance the rights of
(E) how the federal sentencing jurisdiction of tribes to prosecute, defendants, the unique and important
guidelines should account for protection sentence, and convict Indians and non- status of tribal courts, the need to avoid
orders issued by tribal courts; and Indians who assault Indian spouses or disparate sentences in light of disparate
(F) any other issues relating to dating partners or violate a protection tribal court practices and circumstances,
American Indian defendants and order in Indian Country. It also and the goal of accurately assessing the
victims, or to offenses committed in established new assault offenses and severity of any individual defendant’s
Indian Country, that the TIAG considers enhanced existing assault offenses. Both criminal history.’’ Id. at 13.
appropriate. See Tribal Issues Advisory statutes increased criminal jurisdiction The proposed amendment would
Group Charter § 1(b)(3). for tribal courts, but also required more amend the Commentary to § 4A1.3 to set
The Commission also directed the robust court procedures and provided forth a non-exhaustive list of factors for
TIAG to present a final report with its more procedural protections for the court to consider in determining
findings and recommendations, defendants. whether, and to what extent, an upward
including any recommendations that the The TIAG notes in its report that departure based on a tribal court
TIAG considered appropriate on ‘‘[w]hile some tribes have exercised conviction is appropriate.
potential amendments to the guidelines expanded jurisdiction under TLOA and Issues for comment are also provided.
and policy statements. See id. § 6(a). On the VAWA Reauthorization, most have
May 16, 2016, the TIAG presented to the not done so. Given the lack of tribal (B) Court Protection Orders
Commission its final report. Among the resources, and the absence of significant Under the Guidelines Manual, the
recommendations suggested in the additional funding under TLOA and the violation of a court protection order is
Report, the TIAG recommends revisions VAWA Reauthorization to date, it is not a specific offense characteristic in three
to the Guidelines Manual relating to the certain that more tribes will be able to Chapter Two offense guidelines. See
use of tribal court convictions in the do so any time soon.’’ TIAG Report, at USSG §§ 2A2.2 (Aggravated Assault),
computation of criminal history points 10–11. Members of the TIAG describe 2A6.1 (Threatening or Harassing
and how the guidelines should account their experience with tribal courts as Communications; Hoaxes; False Liens),
for protection orders issued by tribal ‘‘widely varied,’’ expressing among their and 2A6.2 (Stalking or Domestic
courts. findings certain concerns about funding, Violence). The Commission has heard
The proposed amendment contains perceptions of judicial bias or political concerns that the term ‘‘court protection
two parts (Parts A and B). The influence, due process protections, and order’’ has not been defined in the
Commission is considering whether to access to tribal court records. Id. at 11– guidelines and should be clarified.
promulgate one or both of these parts, 12. The TIAG notes in its report the
as they are not mutually exclusive. The TIAG report highlights that importance of defining ‘‘court
‘‘[t]ribal courts occupy a unique and protection order’’ in the guidelines,
(A) Tribal Court Convictions
valuable place in the criminal justice because—
Pursuant to Chapter Four, Part A system,’’ while also recognizing that [a] clear definition of that term will ensure
(Criminal History), sentences resulting ‘‘[t]ribal courts range in style.’’ Id. at 13. that orders used for sentencing
from tribal court convictions are not According to the TIAG, the differences enhancements are the result of court
counted for purposes of calculating in style and the concerns expressed proceedings assuring appropriate due process
criminal history points, but may be above ‘‘make it often difficult for a protections, that there is consistent
considered under § 4A1.3 (Departures federal court to determine how to weigh identification and treatment of such orders,
Based on Inadequacy of Criminal tribal court convictions in rendering a and that such orders issued by tribal courts
History Category (Policy Statement)). sentencing decision.’’ Id. at 11. It also receive treatment consistent with that of
See USSG § 4A1.2(i). The policy asserts that ‘‘taking a single approach to other issuing jurisdictions. TIAG Report, at
statement at § 4A1.3 allows for upward 14.
the consideration of tribal court
departures if reliable information convictions would be very difficult and The TIAG recommends that the
indicates that the defendant’s criminal could potentially lead to a disparate Commission adopt a definition of ‘‘court
history category substantially result among Indian defendants in protection order’’ that incorporates the
underrepresents the seriousness of the federal courts.’’ Id. at 12. Thus, the statutory provisions at 18 U.S.C. 2265
defendant’s criminal history. Among the TIAG concludes that tribal convictions and 2266. Section 2266(5) provides that
grounds for departure, the policy should not be counted for purposes of the term ‘‘protection order’’ includes:
statement includes ‘‘[p]rior sentences determining criminal history points (A) any injunction, restraining order, or
not used in computing the criminal pursuant to Chapter Four, Part A, and any other order issued by a civil or criminal
history category (e.g., sentences for that ‘‘the current use of USSG § 4A1.3 court for the purpose of preventing violent or
foreign and tribal offenses).’’ USSG to depart upward in individual cases threatening acts or harassment against, sexual
§ 4A1.3(a)(2)(A). continues to allow the best formulation violence, or contact or communication with
As noted in the TIAG’s report, in or physical proximity to, another person,
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of ‘sufficient but not greater than
recent years there have been important necessary’ sentences for defendants, including any temporary or final order issued
changes in tribal criminal jurisdiction. by a civil or criminal court whether obtained
while not increasing sentencing
by filing an independent action or as a
In 2010, Congress enacted the Tribal disparities or introducing due process pendente lite order in another proceeding so
Law and Order Act of 2010 (TLOA), concerns.’’ Id. Nevertheless, the TIAG long as any civil or criminal order was issued
Public Law 111–211, to address high recommends that the Commission in response to a complaint, petition, or
rates of violent crime in Indian Country amend § 4A1.3 to provide guidance and motion filed by or on behalf of a person
by improving criminal justice funding a more structured analytical framework seeking protection; and
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(B) any support, child custody or visitation 2013, Public Law 113–4 (March 7, pursuant to the Guidelines Manual.’’
provisions, orders, remedies or relief issued 2013). The Commission invites broad comment
as part of a protection order, restraining (iii) The tribal court conviction is not on this factor and its interaction with
order, or injunction pursuant to State, tribal, based on the same conduct that formed the other factors set forth in the
territorial, or local law authorizing the the basis for a conviction from another
issuance of protection orders, restraining
proposed amendment. Is this factor
orders, or injunctions for the protection of
jurisdiction that receives criminal relevant to the court’s determination of
victims of domestic violence, sexual assault, history points pursuant to this Chapter. whether to depart? What are the
dating violence, or stalking. 18 U.S.C. (iv) The conviction is for an offense advantages and disadvantages of
2266(5). that otherwise would be counted under including such a factor? How much
§ 4A1.2 (Definitions and Instructions for weight should be given to this factor in
Section 2265(b) provides that Computing Criminal History). relation to the other factors provided in
A protection order issued by a State, tribal, [(v) At the time the defendant was the proposed amendment? What criteria
or territorial court is consistent with this sentenced, the tribal government had should be used in determining when a
subsection if— formally expressed a desire that
(1) such court has jurisdiction over the
tribal government has ‘‘formally
convictions from its courts should be expressed a desire’’ that convictions
parties and matter under the law of such counted for purposes of computing
State, Indian tribe, or territory; and from its courts should count? How
criminal history pursuant to the would tribal governments notify and
(2) reasonable notice and opportunity to be
heard is given to the person against whom
Guidelines Manual.]’’. make available such statements?
the order is sought sufficient to protect that Issues for Comment 2. Pursuant to subsection (i) of
person’s right to due process. In the case of
1. Part A of the proposed amendment § 4A1.2 (Definitions and Instructions for
ex parte orders, notice and opportunity to be
heard must be provided within the time would provide a list of relevant factors Computing Criminal History), sentences
required by State, tribal, or territorial law, that courts may consider, in addition to resulting from tribal court convictions
and in any event within a reasonable time the factors set forth in § 4A1.3(a), in are not counted for purposes of
after the order is issued, sufficient to protect determining whether an upward calculating criminal history points, but
the respondent’s due process rights. 18 departure based on a tribal court may be considered under § 4A1.3
U.S.C. 2265(b). conviction may be warranted. The (Departures Based on Inadequacy of
The proposed amendment would Commission seeks comment on whether Criminal History Category (Policy
amend the Commentary to § 1B1.1 the factors provided in the proposed Statement)). As stated above, the policy
(Application Instructions) to provide a amendment are appropriate. Should any statement at § 4A1.3 allows for upward
definition of court protection order factors be deleted or changed? Should departures if reliable information
derived from 18 U.S.C. 2266(5), with a the Commission provide additional or indicates that the defendant’s criminal
provision that it must be consistent with different guidance? If so, what guidance history category substantially
18 U.S.C. 2265(b). should the Commission provide? underrepresents the seriousness of the
An issue for comment is also In particular, the Commission seeks defendant’s criminal history.
provided. comment on how these factors should The Commission invites comment on
interact with each other and with the whether the Commission should
(A) Tribal Court Convictions factors already contained in § 4A1.3(a). consider changing how the guidelines
Proposed Amendment Should the Commission provide greater account for sentences resulting from
emphasis on one or more factors set tribal court convictions for purposes of
Section 4A1.3(a)(2) is amended by forth in the proposed amendment? For determining criminal history points
striking ‘‘subsection (a)’’ and inserting example, how much weight should be pursuant to Chapter Four, Part A
‘‘subsection (a)(1)’’; and by striking given to factors that address due process (Criminal History). Should the
‘‘tribal offenses’’ and inserting ‘‘tribal concerns (subdivisions (i) and (ii)) in Commission consider amending
convictions’’. relation to the other factors provided in § 4A1.2(i) and, if so, how? For example,
The Commentary to § 4A1.3 captioned the proposed amendment, such as those should the guidelines treat sentences
‘‘Application Notes’’ is amended in factors relevant to preventing resulting from tribal court convictions
Note 2 by inserting at the end the unwarranted double counting same as other sentences imposed for
following new paragraph (C): (subdivisions (iii) and (iv))? Should the federal, state, and local offenses that
‘‘(C) Upward Departures Based on Commission provide that in order to may be used to compute criminal
Tribal Court Convictions.—In consider whether an upward departure history points? Should the guidelines
determining whether, or to what extent, based on a tribal court conviction is treat sentences resulting from tribal
an upward departure based on a tribal appropriate, and before taking into court convictions more akin to military
court conviction is appropriate, the account any other factor, the court must sentences and distinguish between
court shall consider the factors set forth first determine as a threshold factor that certain types of tribal courts? Is there a
in § 4A1.3(a) above and, in addition, the defendant received due process different approach the Commission
may consider relevant factors such as protections consistent with those should follow in addressing the use of
the following: provided to criminal defendants under tribal court convictions in the
(i) The defendant was represented by the United States Constitution? computation of criminal history scores?
a lawyer, had the right to a trial by jury, Finally, Part A of the proposed
and received other due process amendment brackets the possibility of (B) Court Protection Orders
protections consistent with those including as a factor that courts may
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Proposed Amendment
provided to criminal defendants under consider in deciding whether to depart
the United States Constitution. based on a tribal court conviction if, ‘‘at The Commentary to § 1B1.1 captioned
(ii) The tribe was exercising expanded the time the defendant was sentenced, ‘‘Application Notes’’ is amended in
jurisdiction under the Tribal Law and the tribal government had formally Note 1 by redesignating paragraphs (D)
Order Act of 2010, Public Law 111–211 expressed a desire that convictions from through (L) as paragraphs (E) through
(July 29, 2010), and the Violence its courts should be counted for (M), respectively; and by inserting the
Against Women Reauthorization Act of purposes of computing criminal history following new paragraph (D):
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![40656 Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices
‘‘(D) ‘court protection order’ means ranges for ‘‘first offenders’’ generally Finally, Part A of the proposed
‘protection order’ as defined by 18 and increase the availability of amendment also provides issues for
U.S.C. 2266(5) and consistent with 18 alternatives to incarceration for such comment.
U.S.C. 2265(b).’’. offenders at the lower levels of the
(B) Consolidation of Zones B and C in
Sentencing Table (compared to the Sentencing Table
Issue for Comment
otherwise similar offenders in Criminal
1. Part B of the proposed amendment History Category I). Recidivism data Part B of the proposed amendment is
would include in the Commentary to analyzed by the Commission indicate a result of the Commission’s continued
§ 1B1.1 (Application Instructions) a that ‘‘first offenders’’ generally pose the study of alternatives to incarceration.
definition of court protection order lowest risk of recidivism. See, e.g., U.S. See U.S. Sentencing Comm’n, ‘‘Notice of
derived from 18 U.S.C. 2266(5) and Sentencing Comm’n, ‘‘Recidivism Final Priorities,’’ 82 FR 39949 (Aug. 22,
consistent with 18 U.S.C. 2265(b). Is this Among Federal Offenders: A 2017).
definition appropriate? If not, what Comprehensive Overview,’’ at 18 (2016), The Guidelines Manual defines and
definition, if any, should the available at http://www.ussc.gov/ allocates sentencing options in Chapter
Commission provide? research/research-publications/ Five (Determining the Sentence). This
recidivism-among-federal-offenders- chapter sets forth ‘‘zones’’ in the
3. First Offenders/Alternatives to Sentencing Table based on the
Incarceration comprehensive-overview. In addition, 28
U.S.C. 994(j) directs that alternatives to minimum months of imprisonment in
Synopsis of Proposed Amendment: incarceration are generally appropriate each cell. The Sentencing Table sorts all
The proposed amendment contains two for first offenders not convicted of a sentencing ranges into four zones,
parts (Part A and Part B). The violent or otherwise serious offense. The labeled A through D. Each zone allows
Commission is considering whether to for different sentencing options, as
new Chapter Four guideline, in
promulgate either or both of these parts, follows:
conjunction with the revision to § 5C1.1
as they are not mutually exclusive. Zone A.—All sentence ranges within
(Imposition of a Term of Imprisonment) Zone A, regardless of the underlying
(A) First Offenders described below, would further offense level or criminal history
Part A of the proposed amendment is implement the congressional directive category, are zero to six months. A
primarily informed by the Commission’s at section 994(j). sentencing court has the discretion to
multi-year study of recidivism, Part A of the proposed amendment impose a sentence that is a fine-only,
including the circumstances that provides two options for defining a probation-only, probation with a
correlate with increased or reduced ‘‘first offender’’ who would be eligible confinement condition (home detention,
recidivism. See U.S. Sentencing for a decrease in offense level under the community confinement, or intermittent
Comm’n, ‘‘Notice of Final Priorities,’’ 82 new guideline. Option 1 defines a confinement), a split sentence (term of
FR 39949 (Aug. 22, 2017). It is also defendant as a ‘‘first offender’’ if the imprisonment with term of supervised
informed by the Commission’s defendant did not receive any criminal release with condition of confinement),
continued study of alternatives to history points from Chapter Four, Part or imprisonment. Zone A allows for
incarceration. Id. A. Option 2 defines a defendant as a probation without any conditions of
Under the Guidelines Manual, ‘‘first offender’’ if the defendant has no confinement.
offenders with minimal or no criminal prior convictions of any kind. Zone B.—Sentence ranges in Zone B
history are classified into Criminal Part A also provides two options for are from one to 15 months of
History Category I. ‘‘First offenders,’’ the decrease in offense level that would imprisonment. Zone B allows for a
offenders with no criminal history, are apply to a first offender. Option 1 probation term to be substituted for
addressed in the guidelines only by provides a decrease of [1] level from the imprisonment, contingent upon the
reference to Criminal History Category I. offense level determined under Chapters probation term including conditions of
However, Criminal History Category I Two and Three. Option 2 provides a confinement. Zone B allows for non-
includes not only ‘‘first’’ offenders but decrease of [2] levels if the final offense prison sentences, which technically
also offenders with varying criminal level determined under Chapters Two result in sentencing ranges larger than
histories, such as offenders with no and Three is less than level [16], or a six months, because the minimum term
criminal history points and those with decrease of [1] level if the offense level of imprisonment is one month and the
one criminal history point. Accordingly, determined under Chapters Two and maximum terms begin at seven months.
the following offenders are classified in Three is level [16] or greater. To avoid sentencing ranges exceeding
the same category: (1) first time Part A also amends § 5C1.1 six months, the guidelines require that
offenders with no prior convictions; (2) (Imposition of a Term of Imprisonment) probationary sentences in Zone B
offenders who have prior convictions to add a new subsection (g) that include conditions of confinement.
that are not counted because they were provides that if (1) the defendant is Zone B also allows for a term of
not within the time limits set forth in determined to be a first offender under imprisonment (of at least one month)
§ 4A1.2(d) and (e); (3) offenders who § 4C1.1 (First Offender), (2) [the instant followed by a term of supervised release
have prior convictions that are not used offense of conviction is not a crime of with a condition of confinement (i.e., a
in computing the criminal history violence][the defendant did not use ‘‘split sentence’’) or a term of
category for reasons other than their violence or credible threats of violence imprisonment only.
‘‘staleness’’ (e.g., sentences resulting or possess a firearm or other dangerous Zone C.—Sentences in Zone C range
weapon in connection with the offense], from 10 to 18 months of imprisonment.
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from foreign or tribal court convictions,
minor misdemeanor convictions or and (3) the guideline range applicable to Zone C allows for split sentences, which
infractions); and (4) offenders with a that defendant is in Zone A or Zone B must include a term of imprisonment
prior conviction that received only one of the Sentencing Table, the court equivalent to at least half of the
criminal history point. ordinarily should impose a sentence minimum of the applicable guideline
Part A sets forth a new Chapter Four other than a sentence of imprisonment range. The remaining half of the term
guideline, at § 4C1.1 (First Offenders), in accordance with the other sentencing requires supervised release with a
that would provide lower guideline options. condition of community confinement or
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home detention. Alternatively, the court (1) if the offense level determined the new § 4C1.1 (First Offender). Option
has the option of imposing a term of under Chapters Two and Three is less 1 defines a defendant as a ‘‘first
imprisonment only. than level [16], decrease by [2] levels; or offender’’ if the defendant did not
Zone D.—The final zone, Zone D, (2) if the offense level determined receive any criminal history points from
allows for imprisonment only, ranging under Chapters Two and Three is level Chapter Four, Part A. Option 2 defines
from 15 months to life. [16] or greater, decrease by [1] level.]] a defendant as a ‘‘first offender’’ if the
Part B of the proposed amendment defendant has no prior convictions of
Commentary any kind. The Commission seeks
expands Zone B by consolidating Zones
B and C. The expanded Zone B would Application Note: comment on the proposed definition.
include sentence ranges from one to 18 1. Cases Involving Mandatory Should the Commission adopt a broader
months and allow for the sentencing Minimum Penalties.—If the case definition than either Option 1 or
options described above. Although the involves a statutorily required minimum Option 2? Should the Commission
proposed amendment would in fact sentence of at least five years and the adopt a narrower definition than either
delete Zone C by its consolidation with defendant meets the criteria set forth in option? Should the Commission adopt a
Zone B, Zone D would not be subsection (a) of § 5C1.2 (Limitation on definition that is narrower than Option
redesignated. Finally, Part B makes 1 but broader than Option 2? For
Applicability of Statutory Minimum
conforming changes to §§ 5B1.1 example, should the Commission define
Sentences in Certain Cases), the offense
(Imposition of a Term of Probation) and ‘‘first offender’’ as a defendant who did
level determined under this section
5C1.1 (Imposition of a Term of not receive any criminal history points
shall be not less than level 17. See
Imprisonment). from Chapter Four, Part A and has no
§ 5C1.2(b).’’.
Part B also amends the Commentary prior felony convictions? Should the
Section 5C1.1 is amended by inserting
to § 5F1.2 (Home Detention) to remove Commission instead define ‘‘first
at the end the following new subsection
the language instructing that (1) offender’’ as a defendant who either has
(g):
electronic monitoring ‘‘ordinarily no prior convictions of any kind or has
‘‘(g) In cases in which (1) the
should be used in connection with’’ only prior convictions that are not
defendant is determined to be a first counted under § 4A1.2 for a reason
home detention; (2) alternative means of offender under § 4C1.1 (First Offender),
surveillance may be used ‘‘so long as other than being too remote in time?
(2) [the instant offense of conviction is Should the Commission provide
they are effective as electronic not a crime of violence][the defendant
monitoring;’’ and (3) ‘‘surveillance additional or different guidance for
did not use violence or credible threats determining whether a defendant is, or
necessary for effective use of home of violence or possess a firearm or other is not, a first offender?
detention ordinarily requires’’ electronic dangerous weapon in connection with 2. Part A of the proposed amendment
monitoring. the offense], and (3) the guideline range provides two options for the decrease in
Issues for comment are also provided. applicable to that defendant is in Zone offense level that would apply to a first
(A) First Offenders A or B of the Sentencing Table, the offender. One of the options, Option 1,
court ordinarily should impose a would provide that if the defendant is
Proposed Amendment sentence other than a sentence of determined to be a first offender (as
Chapter Four is amended by inserting imprisonment in accordance with the defined in the new guideline) a decrease
at the end the following new Part C: other sentencing options set forth in this of [1] level from the offense level
guideline.’’. determined under Chapters Two and
PART C—FIRST OFFENDER The Commentary to § 5C1.1 captioned Three would apply. Should the
§ 4C1.1. First Offender ‘‘Application Notes’’ is amended by Commission limit the applicability of
inserting at the end the following new the adjustment to defendants with an
[Definition of ‘‘First Offender’’ Note 10: offense level determined under Chapters
[Option 1: ‘‘10. Application of Subsection (g).— Two and Three that is less than a certain
(A) Sentence of Probation number of levels? For example, should
(a) A defendant is a first offender if Prohibited.—The court may not impose the Commission provide that if the
the defendant did not receive any a sentence of probation pursuant to this offense level determined under Chapters
criminal history points from Chapter provision if prohibited by statute. See Two and Three is less than level [16],
Four, Part A.] § 5B1.1 (Imposition of a Term of the offense level shall be decreased by
[Option 2: Probation). [1] level? What other limitations or
[(B) Definition of ‘Crime of requirements, if any, should the
(a) A defendant is a first offender if Violence’.—For purposes of subsection Commission provide for such an
the defendant has no prior convictions (g), ‘crime of violence’ has the meaning adjustment?
of any kind.]] given that term in § 4B1.2 (Definitions of 3. Part A of the proposed amendment
[Decrease in Offense Level for First Terms Used in Section 4B1.1). would amend § 5C1.1 (Imposition of a
Offenders (C) Sentence of Imprisonment for First Term of Imprisonment) to provide that
Offenders.—A sentence of if the defendant is determined to be a
[Option 1:
imprisonment may be appropriate in first offender under the new § 4C1.1
(b) If the defendant is determined to cases in which the defendant used (First Offender), [the defendant’s instant
be a first offender under subsection (a), violence or credible threats of violence offense of conviction is not a crime of
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decrease the offense level determined or possessed a firearm or other violence][the defendant did not use
under Chapters Two and Three by [1] dangerous weapon in connection with violence or credible threats of violence
level.] the offense].’’. or possess a firearm or other dangerous
weapon in connection with the offense],
[Option 2: Issues for Comment and the guideline range applicable to
(b) If the defendant is determined to 1. Part A of the proposed amendment that defendant is in Zone A or Zone B
be a first offender under subsection (a), provides two options for how to define of the Sentencing Table, the court
decrease the offense level as follows: ‘‘first offender’’ for purposes of applying ordinarily should impose a sentence
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![40658 Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices
other than a sentence of imprisonment (2) a sentence of imprisonment that minimum term must be satisfied by
in accordance with the other sentencing includes a term of supervised release imprisonment) to the sentencing options
options. Should the Commission further with a condition that substitutes authorized for Zone B of the Sentencing
limit the application of such a community confinement or home Table (under which all or most of the
rebuttable ‘‘presumption’’ and exclude detention according to the schedule in minimum term may be satisfied by
certain categories of non-violent subsection (e), provided that at least intermittent confinement, community
offenses? If so, what offenses should be one-half of the minimum term is confinement, or home detention instead
excluded from the presumption of a satisfied by imprisonment.’’; of imprisonment) is appropriate to
non-incarceration sentence? For and by redesignating subsections (e) accomplish a specific treatment
example, should the Commission and (f) as subsections (d) and (e), purpose. Such a departure should be
exclude public corruption, tax, and respectively. considered only in cases where the
other white-collar offenses? The Commentary to § 5C1.1 captioned court finds that (A) the defendant is an
4. If the Commission were to ‘‘Application Notes’’ is amended— abuser of narcotics, other controlled
promulgate Part A of the proposed in Note 3 by striking ‘‘nine months’’ substances, or alcohol, or suffers from a
amendment, what conforming changes, and inserting ‘‘twelve months’’; significant mental illness, and (B) the
if any, should the Commission make to by striking Note 4 as follows: defendant’s criminality is related to the
other provisions of the Guidelines ‘‘4. Subsection (d) provides that treatment problem to be addressed.
Manual? where the applicable guideline range is In determining whether such a
in Zone C of the Sentencing Table (i.e., departure is appropriate, the court
(B) Consolidation of Zones B and C in the minimum term specified in the should consider, among other things, (1)
the Sentencing Table applicable guideline range is ten or the likelihood that completion of the
Proposed Amendment twelve months), the court has two treatment program will successfully
options: address the treatment problem, thereby
Chapter Five, Part A is amended in (A) It may impose a sentence of reducing the risk to the public from
the Sentencing Table by striking ‘‘Zone imprisonment. further crimes of the defendant, and (2)
C’’; by redesignating Zone B to contain (B) Or, it may impose a sentence of whether imposition of less
all guideline ranges having a minimum imprisonment that includes a term of imprisonment than required by Zone C
of at least one month but not more than supervised release with a condition will increase the risk to the public from
twelve months; and by inserting below requiring community confinement or further crimes of the defendant.
‘‘Zone B’’ the following: ‘‘[Zone C home detention. In such case, at least Examples: The following examples
Deleted]’’. one-half of the minimum term specified both assume the applicable guideline
The Commentary to the Sentencing in the guideline range must be satisfied range is 12–18 months and the court
Table is amended by inserting at the end by imprisonment, and the remainder of departs in accordance with this
the following: the minimum term specified in the application note. Under Zone C rules,
‘‘Background: The Sentencing Table guideline range must be satisfied by the defendant must be sentenced to at
previously provided four ‘zones,’ community confinement or home least six months imprisonment. (1) The
labeled A through D, based on the detention. For example, where the defendant is a nonviolent drug offender
minimum months of imprisonment in guideline range is 10–16 months, a in Criminal History Category I and
each cell. The Commission expanded sentence of five months imprisonment probation is not prohibited by statute.
Zone B by consolidating former Zones B followed by a term of supervised release The court departs downward to impose
and C. Zone B in the Sentencing Table with a condition requiring five months a sentence of probation, with twelve
now contains all guideline ranges community confinement or home months of intermittent confinement,
having a minimum term of detention would satisfy the minimum community confinement, or home
imprisonment of at least one but not term of imprisonment required by the detention and participation in a
more than twelve months. Although guideline range. substance abuse treatment program as
Zone C was deleted by its consolidation The preceding example illustrates a conditions of probation. (2) The
with Zone B, the Commission decided sentence that satisfies the minimum defendant is convicted of a Class A or
not to redesignate Zone D as Zone C, to term of imprisonment required by the B felony, so probation is prohibited by
avoid unnecessary confusion that may guideline range. The court, of course, statute (see § 5B1.1(b)). The court
result from different meanings of ‘Zone may impose a sentence at a higher point departs downward to impose a sentence
C’ and ‘Zone D’ through different within the guideline range. For of one month imprisonment, with
editions of the Guidelines Manual.’’. example, where the guideline range is eleven months in community
The Commentary to § 5B1.1 captioned 10–16 months, both a sentence of five confinement or home detention and
‘‘Application Notes’’ is amended in months imprisonment followed by a participation in a substance abuse
Note 1(B), in the heading, by striking term of supervised release with a treatment program as conditions of
‘‘nine months’’ and inserting ‘‘twelve condition requiring six months of supervised release.’’;
months’’; and in Note 2 by striking community confinement or home by redesignating Notes 5, 7, 8, and 9
‘‘Zone C or D’’ and inserting ‘‘Zone D’’, detention (under subsection (d)), and a as Notes 4, 5, 6, and 7, respectively;
and by striking ‘‘ten months’’ and sentence of ten months imprisonment in Note 4 (as so redesignated) by
inserting ‘‘fifteen months’’. followed by a term of supervised release striking ‘‘Subsection (e)’’ and inserting
Section 5C1.1 is amended— with a condition requiring four months ‘‘Subsection (d)’’;
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in subsection (c) by striking of community confinement or home in Note 5 (as so redesignated) by
‘‘subsection (e)’’ both places such term detention (also under subsection (d)) striking ‘‘subsections (c) and (d)’’ and
appears and inserting ‘‘subsection (d)’’; would be within the guideline range.’’; inserting ‘‘subsection (c)’’;
by striking subsection (d) as follows: by striking Note 6 as follows: and in Note 7 (as so redesignated) by
‘‘(d) If the applicable guideline range ‘‘6. There may be cases in which a striking ‘‘Subsection (f)’’ and inserting
is in Zone C of the Sentencing Table, the departure from the sentencing options ‘‘Subsection (e)’’, and by striking
minimum term may be satisfied by— authorized for Zone C of the Sentencing ‘‘subsection (e)’’ and inserting
(1) a sentence of imprisonment; or Table (under which at least half the ‘‘subsection (d)’’.
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The Commentary to § 5F1.2 captioned 4. Acceptance of Responsibility suggest this has a chilling effect because
‘‘Application Notes’’ is amended in Synopsis of Proposed Amendment: defendants are concerned such
Note 1 by striking ‘‘Electronic This proposed amendment is the result objections may jeopardize their
monitoring is an appropriate means of of the Commission’s consideration of eligibility for a reduction for acceptance
surveillance and ordinarily should be miscellaneous guideline application of responsibility.
used in connection with home issues, including whether a defendant’s The proposed amendment amends the
detention’’ and inserting ‘‘Electronic denial of relevant conduct should be Commentary to § 3E1.1 to revise how a
monitoring is an appropriate means of considered in determining whether the defendant’s challenge to relevant
surveillance for home detention’’; and defendant has accepted responsibility conduct should be considered in
by striking ‘‘may be used so long as they for purposes of § 3E1.1. See U.S. determining whether the defendant has
are as effective as electronic Sentencing Comm’n, ‘‘Notice of Final accepted responsibility for purposes of
monitoring’’ and inserting ‘‘may be used Priorities,’’ 82 FR 39949 (Aug. 22, 2017). the guideline. Specifically, the proposed
if appropriate’’. Section 3E1.1 (Acceptance of amendment would revise Application
The Commentary to § 5F1.2 captioned Responsibility) provides for a 2-level Note 1(A) by substituting a new
‘‘Background’’ is amended by striking reduction for a defendant who clearly sentence for the sentence that states ‘‘a
‘‘The Commission has concluded that defendant who falsely denies, or
demonstrates acceptance of
the surveillance necessary for effective frivolously contests, relevant conduct
responsibility. Application Note 1(A) of
use of home detention ordinarily that the court determines to be true has
§ 3E1.1 provides as one of the
requires electronic monitoring’’ and acted in a manner inconsistent with
appropriate considerations in
inserting ‘‘The Commission has acceptance of responsibility.’’ The
determining whether a defendant
concluded that electronic monitoring is proposed amendment includes two
‘‘clearly demonstrate[d] acceptance of
an appropriate means of surveillance for options for the substitute.
responsibility’’ the following:
home detention’’; and by striking ‘‘the Option 1 would provide that ‘‘a
court should be confident that an truthfully admitting the conduct comprising defendant may make a non-frivolous
alternative form of surveillance will be the offense(s) of conviction, and truthfully
admitting or not falsely denying any
challenge to relevant conduct without
equally effective’’ and inserting ‘‘the affecting his ability to obtain a
additional relevant conduct for which the
court should be confident that an defendant is accountable under § 1B1.3 reduction.’’
alternative form of surveillance is (Relevant Conduct). Note that a defendant is Option 2 would provide that ‘‘a
appropriate considering the facts and not required to volunteer, or affirmatively defendant may make a challenge to
circumstances of the defendant’s case’’. admit, relevant conduct beyond the offense relevant conduct without affecting his
of conviction in order to obtain a reduction ability to obtain a reduction, unless the
Issues for Comment under subsection (a). A defendant may challenge lacks an arguable basis either
1. The Commission requests comment remain silent in respect to relevant conduct in law or in fact.’’
on whether the zone changes beyond the offense of conviction without
An issue for comment is also
contemplated by Part B of the proposed affecting his ability to obtain a reduction
under this subsection. However, a defendant provided.
amendment should apply to all offenses,
or only to certain categories of offenses. who falsely denies, or frivolously contests, Proposed Amendment
relevant conduct that the court determines to
The zone changes would increase the The Commentary to § 3E1.1 captioned
be true has acted in a manner inconsistent
number of offenders who are eligible with acceptance of responsibility; ‘‘Application Notes’’ is amended in
under the guidelines to receive a non- Note 1(A) by striking ‘‘However, a
incarceration sentence. Should the In addition, Application Note 3
provides further guidance on evidence defendant who falsely denies, or
Commission provide a mechanism to frivolously contests, relevant conduct
exempt certain offenses from these zone that might demonstrate acceptance of
responsibility, as follows: that the court determines to be true has
changes? For example, should the acted in a manner inconsistent with
Commission provide a mechanism to Entry of a plea of guilty prior to the acceptance of responsibility’’, and
exempt public corruption, tax, and other commencement of trial combined with inserting the following:
white-collar offenses from these zone truthfully admitting the conduct comprising
changes (e.g., to reflect a view that it the offense of conviction, and truthfully [Option 1:
would not be appropriate to increase the admitting or not falsely denying any
additional relevant conduct for which he is ‘‘In addition, a defendant may make a
number of public corruption, tax, and non-frivolous challenge to relevant
accountable under § 1B1.3 (Relevant
other white-collar offenders who are Conduct) (see Application Note 1(A)), will conduct without affecting his ability to
eligible to receive a non-incarceration constitute significant evidence of acceptance obtain a reduction’’.]
sentence)? If so, what mechanism of responsibility for the purposes of
should the Commission provide, and subsection (a). However, this evidence may [Option 2:
what offenses should be covered by it? be outweighed by conduct of the defendant ‘‘In addition, a defendant may make a
2. The proposed amendment would that is inconsistent with such acceptance of challenge to relevant conduct without
consolidate Zones B and C to create an responsibility. A defendant who enters a affecting his ability to obtain a
expanded Zone B. Such an adjustment guilty plea is not entitled to an adjustment reduction, unless the challenge lacks an
would provide probation with under this section as a matter of right.
arguable basis either in law or in fact’’.]
conditions of confinement as a The Commission has heard concerns
sentencing option for current Zone C that the Commentary to § 3E1.1 Issue for Comment
defendants, an option that was not (particularly the provisions cited above) 1. The Commission seeks comment on
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available to such defendants before. The encourages courts to deny a reduction in whether the Commission should amend
Commission seeks comment on whether sentence when a defendant pleads the Commentary to § 3E1.1 (Acceptance
the Commission should provide guilty and accepts responsibility for the of Responsibility) to change or clarify
additional guidance to address these offense of conviction, but how a defendant’s challenge to relevant
new Zone B defendants. If so, what unsuccessfully challenges the conduct should be considered in
guidance should the Commission presentence report’s assessments of determining whether a defendant has
provide? relevant conduct. These commenters accepted responsibility for purposes of
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(B) International Megan’s Law To conduct described in 18 U.S.C. 2250(a) $250,000, imprisonment of up to 15
Prevent Child Exploitation and Other or (b). years, or both.
Sexual Crimes Through Advanced Finally, Part B makes clerical changes Part C of the proposed amendment
Notification of Traveling Sex Offenders to § 2A3.6 (Aggravated Offenses Relating amends Appendix A (Statutory Index)
Synopsis of Proposed Amendment: to Registration as a Sex Offender) to so that the new provision, 15 U.S.C.
Part B of the proposed amendment reflect the redesignation of 18 U.S.C. 2615(b)(2), is referenced to § 2Q1.1
responds to the International Megan’s 2250(c) by the International Megan’s (Knowing Endangerment Resulting
Law to Prevent Child Exploitation and Law. From Mishandling Hazardous or Toxic
Other Sexual Crimes Through Advanced Substances, Pesticides or Other
Proposed Amendment
Notification of Traveling Sex Offenders Pollutants), while maintaining the
The Commentary to § 2A3.5 captioned reference to § 2Q1.2 (Mishandling of
Act (‘‘International Megan’s Law’’),
‘‘Statutory Provision’’ is amended by Hazardous or Toxic Substances or
Public Law 114–119 (Feb. 8, 2016). The
striking ‘‘§ 2250(a)’’ and inserting Pesticides; Recordkeeping, Tampering,
Act added a new notification
‘‘§ 2250(a), (b)’’. and Falsification; Unlawfully
requirement to 42 U.S.C. 16914 [The Commentary to § 2A3.5
(Information required in [sex offender] Transporting Hazardous Materials in
captioned ‘‘Application Notes’’ is Commerce) for 15 U.S.C. 2615(b)(1).
registration). Section 16914 states that amended by redesignating Note 2 as
sex offenders who are required to Note 3, and by inserting the following Proposed Amendment
register under the Sex Offender new Note 2: Appendix A (Statutory Index) is
Registration and Notification Act ‘‘2. Application of Subsection (b)(1).— amended—
(SORNA) must provide certain For purposes of subsection (b)(1), a in the line referenced to 15 U.S.C.
information for inclusion in the sex defendant shall be deemed to be in a 2615 by striking ‘‘§ 2615’’ and inserting
offender registry. Those provisions ‘failure to register status’ during the ‘‘§ 2615(b)(1)’’;
include the offender’s name, Social period in which the defendant engaged and by inserting before the line
Security number, address of all in conduct described in 18 U.S.C. referenced to 15 U.S.C. 6821 the
residences, name and address where the 2250(a) or (b).’’.] following new line reference:
offender is an employee, the name and Section 2A3.6(a) is amended by ‘‘15 U.S.C. 2615(b)(2) 2Q1.1’’.
address where the offender is a student, striking ‘‘§ 2250(c)’’ and inserting
license plate number and description of ‘‘§ 2250(d)’’. (D) Use of a Computer Enhancement in
any vehicle. The International Megan’s The Commentary to § 2A3.6 captioned § 2G1.3
Law added as an additional requirement ‘‘Statutory Provisions’’ is amended by Synopsis of Proposed Amendment:
that the sex offender must provide striking ‘‘2250(c)’’ and inserting Part D of the proposed amendment
‘‘information relating to intended travel ‘‘2250(d)’’. clarifies how the use of a computer
of the sex offender outside of the United The Commentary to § 2A3.6 captioned enhancement at § 2G1.3(b)(3) interacts
States, including any anticipated dates ‘‘Application Notes’’ is amended— with its corresponding commentary at
and places of departure, arrival or in Note 1 by striking ‘‘Section Application Note 4. Section 2G1.3
return, carrier and flight numbers for air 2250(c)’’ and inserting ‘‘Section (Promoting a Commercial Sex Act or
travel, destination country and address 2250(d)’’, and by inserting after ‘‘18 Prohibited Sexual Conduct with a
or other contact information therein, U.S.C. 2250(a)’’ the following: ‘‘or (b)’’;
Minor; Transportation of Minors to
means and purpose of travel, and any in Note 3 by striking ‘‘§ 2250(c)’’ and
Engage in a Commercial Sex Act or
other itinerary or other travel-related inserting ‘‘§ 2250(d)’’; Prohibited Sexual Conduct; Travel to
information required by the Attorney and in Note 4 by striking ‘‘§ 2250(c)’’
Engage in Commercial Sex Act or
General.’’ and inserting ‘‘§ 2250(d)’’. Prohibited Sexual Conduct with a
The International Megan’s Law also Appendix A (Statutory Index) is Minor; Sex Trafficking of Children; Use
added a new criminal offense at 18 amended in the line referenced to 18 of Interstate Facilities to Transport
U.S.C. 2250(b) (Failure to register). The U.S.C. 2250(a) by striking ‘‘§ 2250(a)’’ Information about a Minor) applies to
new subsection (b) provides that and inserting ‘‘§ 2250(a), (b)’’; and in the
several offenses involving the
whoever is required to register under line referenced to 18 U.S.C. 2250(c) by transportation of a minor for illegal
SORNA who knowingly fails to provide striking ‘‘§ 2250(c)’’ and inserting sexual activity. Subsection (b)(3) of
the above described information ‘‘§ 2250(d)’’. § 2G1.3 provides a 2-level enhancement
required by SORNA relating to intended
travel in foreign commerce and who (C) Frank R. Lautenberg Chemical Safety if—
engages or attempts to engage in the for the 21st Century Act the offense involved the use of a computer
or an interactive computer service to (A)
intended travel, is subject to a 10-year Synopsis of Proposed Amendment:
persuade, induce, entice, coerce, or facilitate
statutory maximum penalty. Section Part C of the proposed amendment the travel of, the minor to engage in
2250 offenses are referenced in responds to the Frank R. Lautenberg prohibited sexual conduct; or (B) entice,
Appendix A (Statutory Index) to § 2A3.5 Chemical Safety for the 21st Century encourage, offer, or solicit a person to engage
(Failure to Register as a Sex Offender). Act, Public Law 114–182 (June 22, in prohibited sexual conduct with the minor.
Part B of the proposed amendment 2016). The Act, among other things, Application Note 4 to § 2G1.3 sets
amends Appendix A (Statutory Index) amended section 16 of the Toxic forth guidance on this enhancement
so the new offenses at 18 U.S.C. 2250(b) Substances Control Act (15 U.S.C. 2615) providing as follows:
are referenced to § 2A3.5. The proposed to add a new subsection that provides
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amendment also brackets the possibility that any person who knowingly and Subsection (b)(3) is intended to apply only
of adding a new application note to the willfully violates certain provisions of to the use of a computer or an interactive
computer service to communicate directly
Commentary to § 2A3.5 providing that the Toxic Substances Control Act and with a minor or with a person who exercises
for purposes of § 2A3.5(b), a defendant who knows at the time of the violation custody, care, or supervisory control of the
shall be deemed to be in a ‘‘failure to that the violation places an individual minor. Accordingly, the enhancement in
register status’’ during the period in in imminent danger of death or bodily subsection (b)(3) would not apply to the use
which the defendant engaged in injury shall be subject to a fine up to of a computer or an interactive computer
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![40662 Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices
service to obtain airline tickets for the minor such term appears and inserting comment. (n.8). The Drug Equivalency
from an airline’s Internet site. ‘‘(b)(3)(A)’’. Tables are separated by drug type and
An application issue has arisen as to schedule.
(E) Justice for All Reauthorization Act of In a case involving a controlled
whether Application Note 4, by failing 2016
to distinguish between the two prongs substance that is not specifically
of subsection (b)(3), prohibits Synopsis of Proposed Amendment: referenced in the Drug Quantity Table,
application of the enhancement where a Part E of the proposed amendment the base offense level is determined by
computer was used to solicit a third responds to the Justice for All using the Drug Equivalency Tables to
party to engage in prohibited sexual Reauthorization Act of 2016, Public Law convert the quantity of the controlled
conduct with a minor. 114–324 (Dec. 16, 2016). The Act made substance involved in the offense to its
Most courts to have addressed this statutory changes to protect the rights of marihuana equivalency, then finding
issue have concluded that Application crime victims and to address the use of the offense level in the Drug Quantity
Note 4 is inconsistent with the language DNA and other forensic evidence. Table that corresponds to that quantity
of § 2G1.3(b)(3), and have permitted the Among other things, the Act amended of marihuana. In a case involving more
application of the enhancement for use 18 U.S.C. 3583, the statute addressing than one controlled substance, each of
of a computer in third party solicitation supervised release. Section 3583(d) the drugs is converted into its
cases. See, e.g., United States v. Cramer, requires a court, when imposing a marihuana equivalency, the converted
777 F.3d 597, 606 (2d Cir. 2015) (‘‘We sentence of supervised release, to quantities are added, and the aggregate
conclude that Application Note 4 is impose certain specified conditions of quantity is used to find the offense level
plainly inconsistent with subsection supervised release. The Act amended in the Drug Quantity Table.
(b)(3)(B) . . . . The plain language of section 3583(d) to require the court to The Commission received comment
subsection (b)(3)(B) is clear, and there is include, as one of those conditions, expressing concern that the term
no indication that the drafters of the ‘‘that the defendant make restitution in ‘‘marihuana equivalency’’ is misleading
Guidelines intended to limit this plain accordance with sections 3663 and and results in confusion for individuals
language through Application Note 4.’’); 3663A [of Title 18, United States Code], not fully versed in the guidelines. In
United States v. McMillian, 777 F.3d or any other statute authorizing a particular, some commenters suggested
444, 449–50 (7th Cir. 2015) (‘‘[The sentence of restitution.’’ that the Commission should replace
defendant] points out that Application Part E of the proposed amendment ‘‘marihuana equivalency’’ with another
Note 4 states that ‘Subsection (b)(3) is amends the ‘‘mandatory’’ condition of term.
intended to apply only to the use of a supervised release set forth in The proposed amendment would
computer or an interactive computer subsection (a)(6)(A) of § 5D1.3 amend § 2D1.1 to replace ‘‘marihuana
service to communicate directly with a (Conditions of Supervised Release). It equivalency’’ as the conversion factor
minor or with a person who exercises conforms § 5D1.3(a)(6)(A) to section for determining penalties for controlled
custody, care, or supervisory control of 3583(d) as amended by the Justice for substances that are not specifically
the minor.[’] . . . . But the note is All Reauthorization Act. referenced in the Drug Quantity Table or
wrong. The guideline section provides a when combining differing controlled
Proposed Amendment
2-level enhancement whenever the substances, with a new value termed
defendant uses a computer to ‘entice, Section 5D1.3(a)(6)(A) is amended by ‘‘converted drug weight.’’ Specifically,
encourage, offer, or solicit a person to striking ‘‘18 U.S.C. 2248, 2259, 2264, the proposed amendment would add the
engage in prohibited sexual conduct 2327, 3663, 3663A, and 3664’’ and new conversion factor to all provisions
with the minor’ . . . . When an inserting ‘‘18 U.S.C. 3663 and 3663A, or of the Drug Quantity Table at § 2D1.1(c).
application note clashes with the any other statute authorizing a sentence In addition, the proposed amendment
guideline, the guideline prevails.’’); of restitution’’. would change the title of the ‘‘Drug
United States v. Hill, 783 F.3d 842, 846 6. Marihuana Equivalency Equivalency Tables’’ to ‘‘Drug
(11th Cir. 2015) (‘‘Because the Conversion Tables,’’ and revise the
application note is inconsistent with the Synopsis of Proposed Amendment:
commentary to § 2D1.1 to change all
plain language of U.S.S.G. This proposed amendment makes
references to marihuana as a conversion
§ 2G1.3(b)(3)(B), the plain language of technical changes to § 2D1.1 (Unlawful
factor and replace it with the new value.
the guideline controls.’’); United States Manufacturing, Importing, Exporting, or All changes set forth in the proposed
v. Pringler, 765 F.3d 445, 455 (5th Cir. Trafficking (Including Possession with amendment are not intended as a
2014) (‘‘[W]e hold that the commentary Intent to Commit These Offenses); substantive change in policy for § 2D1.1.
in application note 4 is ‘inconsistent Attempt or Conspiracy) to replace the
with’ Guideline § 2G1.3(b)(3)(B), and we term ‘‘marihuana equivalency’’ which is Proposed Amendment
therefore follow the plain language of used in the Drug Equivalency Tables Section 2D1.1(c)(1) is amended by
the Guideline alone.’’). when determining penalties for certain striking the period at the end of the line
Part D of the proposed amendment controlled substances. referenced to Flunitrazepam and
would amend the Commentary to The Commentary to § 2D1.1 sets forth inserting a semicolon, and by adding at
§ 2G1.3 to clarify that the guidance a series of Drug Equivalency Tables. the end the following:
contained in Application Note 4 refers These tables provide a conversion factor ‘‘• 90,000 KG or more of Converted
only to subsection (b)(3)(A) and does termed ‘‘marihuana equivalency’’ for Drug Weight.’’.
not control the application of the certain controlled substances that is Section 2D1.1(c)(2) is amended by
used to determine the offense level for
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enhancement for use of a computer in striking the period at the end of the line
third party solicitation cases (as cases in which the controlled substance referenced to Flunitrazepam and
provided in subsection (b)(3)(B)). involved in the offense is not inserting a semicolon, and by adding at
specifically listed in the Drug Quantity the end the following:
Proposed Amendment Table, or where there is more than one ‘‘• At least 30,000 KG but less than
The Commentary to § 2G1.3 captioned controlled substance involved in the 90,000 KG of Converted Drug Weight.’’.
‘‘Application Notes’’ is amended in offense (whether or not listed in the Section 2D1.1(c)(3) is amended by
Note 4 by striking ‘‘(b)(3)’’ each place Drug Quantity Table). See § 2D1.1, striking the period at the end of the line
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![40666 Federal Register / Vol. 82, No. 164 / Friday, August 25, 2017 / Notices
the end the following: ‘‘For additional DEPARTMENT OF VETERANS Avenue NW., Washington, DC 20420,
statutory provision(s), see Appendix A AFFAIRS (202) 461–5870 or email cynthia.harvey-
(Statutory Index).’’. pryor@va.gov. Please refer to ‘‘OMB
[OMB Control No. 2900–0067]
The Commentary to § 2Q1.1 captioned Control No. 2900–0067’’ in any
‘‘Statutory Provisions’’ is amended by Agency Information Collection Activity correspondence.
striking ‘‘42 U.S.C. 6928(e)’’ and Under OMB Review: Application for SUPPLEMENTARY INFORMATION:
inserting ‘‘42 U.S.C. 6928(e), Automobile or Other Conveyance and Authority: 44 U.S.C. 3501–21.
7413(c)(5)’’, and by inserting at the end Adaptive Equipment Title: Application for Automobile or
the following: ‘‘For additional statutory AGENCY: Veterans Benefits Other Conveyance and Adaptive
provision(s), see Appendix A (Statutory Administration, Department of Veterans Equipment (Under 38 U.S.C. 3901–
Index).’’. Affairs. 3904) (VA Form 21–4502).
OMB Control Number: 2900–0067.
The Commentary to § 2Q1.2 captioned ACTION: Notice.
Type of Review: Extension of a
‘‘Statutory Provisions’’ is amended by currently approved collection.
SUMMARY: In compliance with the
striking ‘‘7413’’ and inserting Paperwork Reduction Act (PRA) of Abstract: VA Form 21–4502 is used to
‘‘7413(c)(1)–(4)’’. 1995, this notice announces that the gather the necessary information to
The Commentary to § 2Q1.3 captioned Veterans Benefits Administration, determine if a veteran or serviceperson
‘‘Statutory Provisions’’ is amended by Department of Veterans Affairs, will is entitled to an automobile allowance
striking ‘‘7413’’ and inserting submit the collection of information and adaptive equipment.
‘‘7413(c)(1)–(4)’’. abstracted below to the Office of An agency may not conduct or
Management and Budget (OMB) for sponsor, and a person is not required to
Section 5D1.3(a)(4) is amended by
review and comment. The PRA respond to a collection of information
striking ‘‘release on probation’’ and
submission describes the nature of the unless it displays a currently valid OMB
inserting ‘‘release on supervised
information collection and its expected control number. The Federal Register
release’’. cost and burden and it includes the Notice with a 60-day comment period
Appendix A (Statutory Index) is actual data collection instrument. soliciting comments on this collection
amended in the line referenced to 18 DATES: Comments must be submitted on of information was published at 82 FR
U.S.C. 371 by rearranging the guidelines or before September 25, 2017. 113 on June 14, 2017, page 27328.
to place them in proper numerical ADDRESSES: Submit written comments Affected Public: Individuals or
order; and in the line referencing 18 on the collection of information through Households.
U.S.C. 1591 by rearranging the www.Regulations.gov, or to Office of Estimated Annual Burden: 388.
guidelines to place them in proper Information and Regulatory Affairs, Estimated Average Burden per
numerical order. Office of Management and Budget, Attn: Respondent: 15 minutes.
[FR Doc. 2017–18076 Filed 8–24–17; 8:45 am] VA Desk Officer; 725 17th St. NW., Frequency of Response: One time.
Washington, DC 20503 or sent through Estimated Number of Respondents:
BILLING CODE 2210–40–P
electronic mail to oira_submission@ 1,552.
omb.eop.gov. Please refer to ‘‘OMB By direction of the Secretary.
Control No. 2900–0067’’ in any Cynthia Harvey-Pryor,
correspondence. Department Clearance Officer, Office of
FOR FURTHER INFORMATION CONTACT: Quality and Compliance, Department of
Cynthia Harvey-Pryor, Enterprise Veterans Affairs.
Records Service (005R1B), Department [FR Doc. 2017–17982 Filed 8–24–17; 8:45 am]
of Veterans Affairs, 810 Vermont BILLING CODE 8320–01–P
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Document Created: 2018-10-24 12:43:05
Document Modified: 2018-10-24 12:43:05
| 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 October 10, 2017. Written reply comments, which may only respond to issues raised in the original comment period, should be received by the Commission not later than November 6, 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 | 82 FR 40651 |
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