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AMENDMENTS TO THE SENTENCING GUIDELINES
Pursuant to section 994(p) of title 28, United States Code, the United States Sentencing
Commission hereby submits to the Congress the following amendments to the Guidelines
Manual and the reasons therefor. As authorized by such section, the Commission
specifies an effective date of November 1, 2016, for these amendments.
Amendments to the Sentencing Guidelines,
Policy Statements, and Official Commentary
1. Amendment: Section 1B1.13 is amended in the heading by striking “as a Result of
Motion by Director of Bureau of Prisons” and inserting “Under 18 U.S.C.
§ 3582(c)(1)(A)”.
The Commentary to §1B1.13 captioned “Application Notes” is amended in Note 1 by
striking the heading as follows: “Application of Subdivision (1)(A).—; by striking Note
1(A) as follows:
(A) Extraordinary and Compelling Reasons.—Provided the defendant meets the
requirements of subdivision (2), extraordinary and compelling reasons exist under
any of the following circumstances:
(i) The defendant is suffering from a terminal illness.
(ii) The defendant is suffering from a permanent physical or medical
condition, or is experiencing deteriorating physical or mental health
because of the aging process, that substantially diminishes the ability of
the defendant to provide self-care within the environment of a correctional
facility and for which conventional treatment promises no substantial
improvement.
(iii) The death or incapacitation of the defendant’s only family member
capable of caring for the defendant’s minor child or minor children.
(iv) As determined by the Director of the Bureau of Prisons, there exists in the
defendant’s case an extraordinary and compelling reason other than, or in
combination with, the reasons described in subdivisions (i), (ii), and (iii).”;
by redesignating Notes 1(B) and 2 as Notes 3 and 5, respectively, and inserting before
Note 3 (as so redesignated) the following new Notes 1 and 2:
“1. Extraordinary and Compelling Reasons.—Provided the defendant meets the
requirements of subdivision (2), extraordinary and compelling reasons exist under
any of the circumstances set forth below:
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(A) Medical Condition of the Defendant.—
(i) The defendant is suffering from a terminal illness (i.e., a serious and
advanced illness with an end of life trajectory). A specific prognosis
of life expectancy (i.e., a probability of death within a specific time
period) is not required. Examples include metastatic solid-tumor
cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease,
and advanced dementia.
(ii) The defendant is—
(I) suffering from a serious physical or medical condition,
(II) suffering from a serious functional or cognitive impairment,
or
(III) experiencing deteriorating physical or mental health because
of the aging process,
that substantially diminishes the ability of the defendant to provide
self-care within the environment of a correctional facility and from
which he or she is not expected to recover.
(B) Age of the Defendant.—The defendant (i) is at least 65 years old; (ii) is
experiencing a serious deterioration in physical or mental health because of
the aging process; and (iii) has served at least 10 years or 75 percent of his or
her term of imprisonment, whichever is less.
(C) Family Circumstances.
(i) The death or incapacitation of the caregiver of the defendant’s minor
child or minor children.
(ii) The incapacitation of the defendant’s spouse or registered partner
when the defendant would be the only available caregiver for the
spouse or registered partner.
(D) Other Reasons.—As determined by the Director of the Bureau of Prisons,
there exists in the defendant’s case an extraordinary and compelling reason
other than, or in combination with, the reasons described in subdivisions (A)
through (C).
2. Foreseeability of Extraordinary and Compelling Reasons.—For purposes of this
policy statement, an extraordinary and compelling reason need not have been
unforeseen at the time of sentencing in order to warrant a reduction in the term of
imprisonment. Therefore, the fact that an extraordinary and compelling reason
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reasonably could have been known or anticipated by the sentencing court does not
preclude consideration for a reduction under this policy statement.”;
in Note 3 (as so redesignated) by striking “subdivision (1)(A)” and inserting “this policy
statement”;
and by inserting after Note 3 (as so redesignated) the following new Note 4:
“4. Motion by the Director of the Bureau of Prisons.—A reduction under this policy
statement may be granted only upon motion by the Director of the Bureau of
Prisons pursuant to 18 U.S.C. § 3582(c)(1)(A). The Commission encourages the
Director of the Bureau of Prisons to file such a motion if the defendant meets any
of the circumstances set forth in Application Note 1. The court is in a unique
position to determine whether the circumstances warrant a reduction (and, if so,
the amount of reduction), after considering the factors set forth 18 U.S.C.
§ 3553(a) and the criteria set forth in this policy statement, such as the
defendant’s medical condition, the defendant’s family circumstances, and whether
the defendant is a danger to the safety of any other person or to the community.
This policy statement shall not be construed to confer upon the defendant any
right not otherwise recognized in law.”.
The Commentary to §1B1.13 captioned “Background” is amended by striking “This
policy statement implements 28 U.S.C. § 994(t).” and inserting the following:
“The Commission is required by 28 U.S.C. § 994(a)(2) to develop general policy
statements regarding application of the guidelines or other aspects of sentencing that in
the view of the Commission would further the purposes of sentencing (18 U.S.C.
§ 3553(a)(2)), including, among other things, the appropriate use of the sentence
modification provisions set forth in 18 U.S.C. § 3582(c). In doing so, the Commission is
authorized by 28 U.S.C. § 994(t) to ‘describe what should be considered extraordinary
and compelling reasons for sentence reduction, including the criteria to be applied and a
list of specific examples.’ This policy statement implements 28 U.S.C. § 994(a)(2) and
(t).”.
Reason for Amendment: This amendment is a result of the Commission’s review of the
policy statement pertaining to “compassionate release” at §1B1.13 (Reduction in Term of
Imprisonment as a Result of Motion by Director of Bureau of Prisons). The amendment
broadens certain eligibility criteria and encourages the Director of the Bureau of Prisons
to file a motion for compassionate release when “extraordinary and compelling reasons
exist.
Section 3582(c)(1)(A) of title 18, United States Code, authorizes a federal court, upon
motion of the Director of the Bureau of Prisons, to reduce the term of imprisonment of a
defendant if “extraordinary and compelling reasons” warrant such a reduction or the
defendant is at least 70 years of age and meets certain other criteria. Such a reduction
must be consistent with applicable policy statements issued by the Sentencing
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Commission. See 18 U.S.C. § 3582(c)(1)(A); see also 28 U.S.C. §§ 992(a)(2) (stating
that the Commission shall promulgate general policy statements regarding “the sentence
modification provisions set forth in section[] . . . 3582(c) of title 18”); and 994(t) (stating
that the Commission, in promulgating any such policy statements, “shall describe what
should be considered extraordinary and compelling reasons for sentence reduction,
including the criteria to be applied and a list of specific examples”). In turn, the
Commission promulgated the policy statement at §1B1.13, which defines “extraordinary
and compelling reasons” for compassionate release.
The Bureau of Prisons has developed its own criteria for the implementation of section
3582(c)(1)(A). See U.S. Department of Justice, Federal Bureau of Prisons,
Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18
U.S.C. §§ 3582(c)(1)(A) and 4205(g) (Program Statement 5050.49, CN-1). Under its
program statement, a sentence reduction may be based on the defendant’s medical
circumstances (e.g., a terminal or debilitating medical condition; see 5050.49(3)(a)–(b))
or on certain non-medical circumstances (e.g., an elderly defendant, the death or
incapacitation of the family member caregiver of an inmate’s minor child, or the
incapacitation of the defendant’s spouse or registered partner when the inmate would be
the only available caregiver; see 5050.49(4),(5),(6)).
The Commission has conducted an in-depth review of this topic, including consideration
of Bureau of Prisons data documenting lengthy review of compassionate release
applications and low approval rates, as well as two reports issued by the Department of
Justice Office of the Inspector General that are critical of the Bureau of Prisons’
implementation of its compassionate release program. See U.S. Department of Justice,
Office of the Inspector General, The Federal Bureau of Prisons’ Compassionate Release
Program, I-2013-006 (April 2013); U.S. Department of Justice, Office of the Inspector
General, The Impact of the Aging Inmate Population on the Federal Bureau of Prisons, E-
15-05 (May 2015). In February 2016, the Commission held a public hearing on
compassionate release and received testimony from witnesses and experts about the need
to broaden the criteria for eligibility, to add guidance to the medical criteria, and to
remove other administrative hurdles that limit the availability of compassionate release
for otherwise eligible defendants.
The amendment revises §1B1.13 in several ways. First, the amendment broadens the
Commission’s guidance on what should be considered “extraordinary and compelling
reasons” for compassionate release. It provides four categories of criteria: “Medical
Condition of the Defendant,” “Age of the Defendant,” “Family Circumstances,” and
“Other Reasons.”
The “Medical Condition of the Defendant” category has two prongs: one for defendants
with terminal illness, and one that applies to defendants with a debilitating condition. For
the first subcategory, the amendment clarifies that terminal illness means “a serious and
advanced illness with an end of life trajectory,” and it explicitly states that a “specific
prognosis of life expectancy (i.e. a probability of death within a specific time period) is
not required.” These changes respond to testimony and public comment on the
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challenges associated with diagnosing terminal illness. In particular, while an end-of-life
trajectory may be determined by medical professionals with some certainty, it is
extremely difficult to determine death within a specific time period. For that reason, the
Commission concluded that requiring a specified prognosis (such as the 18-month
prognosis in the Bureau of Prisons’ program statement) is unnecessarily restrictive both
in terms of the administrative review and the scope of eligibility for compassionate
release applications. For added clarity, the amendment also provides a non-exhaustive
list of illnesses that may qualify as a terminal illness.
For the non-terminal medical category, the amendment provides three broad criteria to
include defendants who are (i) suffering from a serious condition, (ii) suffering from a
serious functional or cognitive impairment, or (iii) experiencing deteriorating health
because of the aging process, for whom the medical condition substantially diminishes
the defendant’s ability to provide self-care within a correctional facility and from which
he or she is not expected to recover. The primary change to this category is the addition
of prong (II) regarding a serious functional or cognitive impairment. This additional
prong is intended to include a wide variety of permanent, serious impairments and
disabilities, whether functional or cognitive, that make life in prison overly difficult for
certain inmates.
The amendment also adds an age-based category (“Age of the Defendant”) for eligibility
in §1B1.13. This new category would apply if the defendant (i) is at least 65 years old,
(ii) is experiencing a serious deterioration in health because of the aging process, and (iii)
has served at least 10 years or 75 percent of his or her term of imprisonment (whichever
is less). The age-based category resembles criteria in the Bureau of Prisons’ program
statement, but adds a limitation that the defendant must be experiencing seriously
deteriorating health because of the aging process. The amendment also clarifies that the
time-served aspect should be applied with regard to “whichever is less,” an important
distinction from the Bureau of Prisons’ criteria, which has limited application to only
those elderly offenders serving significant terms of imprisonment. The Commission
determined that 65 years should be the age for eligibility under the age-based category
after considering the Commission’s recidivism research, which finds that inmates aged 65
years and older exhibit a very low rate of recidivism (13.3%) as compared to other age
groups. The Commission expects that the broadening of the medical conditions
categories, cited above, will lead to increased eligibility for inmates who suffer from
certain conditions or impairments, and who experience a diminished ability to provide
self-care in prison, regardless of their age.
The amendment also includes a “Family Circumstances” category for eligibility that
applies to (i) the death or incapacitation of the caregiver of the defendant’s minor child,
or (ii) the incapacitation of the defendant’s spouse or registered partner when the
defendant would be the only available caregiver. The amendment deletes the
requirement under prong (i) regarding the death or incapacitation of the “defendant’s only
family member” caregiver, given the possibility that the existing caregiver may not be of
family relation. The Commission also added prong (ii), which makes this category of
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criteria consistent with similar considerations in the Bureau of Prisons’ program
statement.
Second, the amendment updates the Commentary in §1B1.13 to provide that an
extraordinary and compelling reason need not have been unforeseen at the time of
sentencing in order to warrant a reduction. The Commission heard from stakeholders and
medical experts that the corresponding limitation in the Bureau of Prisons’ program
statement ignores the often precipitous decline in health or circumstances that can occur
after imprisonment. The Commission determined that potential foreseeability at the time
of sentencing should not automatically preclude the defendant’s eligibility for early
release under §1B1.13.
Finally, the amendment adds a new application note that encourages the Director of the
Bureau of Prisons to file a motion under 18 U.S.C. § 3582(c)(1)(A) if the defendant
meets any of the circumstances listed as “extraordinary and compelling reasons” in
§1B1.13. The Commission heard testimony and received public comment concerning the
inefficiencies that exist within the Bureau of Prisons’ administrative review of
compassionate release applications, which can delay or deny release, even in cases where
the applicant appears to meet the criteria for eligibility. While only the Director of the
Bureau of Prisons has the statutory authority to file a motion for compassionate release,
the Commission finds that the court is in a unique position to assess whether the
circumstances exist, and whether a reduction is warranted (and, if so, the amount of
reduction), including the factors set forth 18 U.S.C. § 3553(a) and the criteria set forth in
this policy statement, such as the defendant’s medical condition, the defendant’s family
circumstances, and whether the defendant is a danger to the safety of any other person or
to the community.” The Commission’s policy statement is not legally binding on the
Bureau of Prisons and does not confer any rights on the defendant, but the new
commentary is intended to encourage the Director of the Bureau of Prisons to exercise his
or her authority to file a motion under section 3582(c)(1)(A) when the criteria in this
policy statement are met.
The amendment also adds to the Background that the Commission’s general policy-
making authority at 28 U.S.C. § 994(a)(2) serves as an additional basis for this and other
guidance set forth in §1B1.13, and the amendment changes the title of the policy
statement. These changes are clerical.
Effective Date: The effective date of this amendment is November 1, 2016.
2. Amendment: Section 2E3.1 is amended in subsection (a) by striking subsection (a)(2) as
follows:
(2) 10, if the offense involved an animal fighting venture; or”;
by redesignating subsections (a)(1) and (a)(3) as subsections (a)(2) and (a)(4),
respectively; in subsection (a)(2) (as so redesignated) by striking “operation; or” and
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inserting “operation;”; by inserting before subsection (a)(2) (as so redesignated) the
following new subsection (a)(1):
(1) 16, if the offense involved an animal fighting venture, except as provided in
subdivision (3) below;”;
and by inserting before subsection (a)(4) (as so redesignated) the following new
subsection (a)(3):
(3) 10, if the defendant was convicted under 7 U.S.C. § 2156(a)(2)(B); or”.
The Commentary to §2E3.1 captioned “Statutory Provisions” is amended by inserting
after “7 U.S.C. § 2156” the following: “(felony provisions only)”.
The Commentary to §2E3.1 captioned “Application Notes” is amended in Note 1 by
striking “: ‘Animal” and inserting “, ‘animal”;
and in Note 2 by striking “If the offense involved extraordinary cruelty to an animal that
resulted in, for example, maiming or death to an animal, an upward departure may be
warranted.”, and inserting the following:
“The base offense levels provided for animal fighting ventures in subsection (a)(1) and
(a)(3) reflect that an animal fighting venture involves one or more violent fights between
animals and that a defeated animal often is severely injured in the fight, dies as a result of
the fight, or is killed afterward. Nonetheless, there may be cases in which the offense
level determined under this guideline substantially understates the seriousness of the
offense. In such a case, an upward departure may be warranted. For example, an upward
departure may be warranted if (A) the offense involved extraordinary cruelty to an animal
beyond the violence inherent in such a venture (such as by killing an animal in a way that
prolongs the suffering of the animal); or (B) the offense involved animal fighting on an
exceptional scale (such as an offense involving an unusually large number of animals).”.
Appendix A (Statutory Index) is amended in the line referenced to 7 U.S.C. § 2156 by
inserting after “§ 2156” the following: “(felony provisions only)”.
Reason for Amendment: This amendment responds to two legislative changes to the
Animal Welfare Act (the “Act”) (codified at 7 U.S.C. § 2156) made by Congress in 2008
and 2014. First, in 2008, Congress amended the Act to increase the maximum term of
imprisonment for offenses involving an animal fighting venture from three years to five
years. See Food, Conservation, and Energy Act of 2008, Pub. L. No. 110–234,
§ 14207(b), 122 Stat. 1461, 1462 (May 22, 2008). Second, in 2014, Congress again
amended the Act to create two new offenses the offense of attending an animal fight
and the offense of causing an individual under the age of 16 to attend an animal fight,
with respective statutory maximum terms of imprisonment of one and three years. See
Agricultural Act of 2014, Pub. L. 113–79, § 12308, 128 Stat. 990, 990 (Feb. 7, 2014).
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The amendment makes several changes to §2E3.1 (Gambling Offenses, Animal Fighting
Offenses) to account for these legislative actions. The amendment is informed by
extensive public comment, recent case law, and analysis of Commission data regarding
the current penalties for animal fighting offenses.
Higher Penalties for Animal Fighting Venture Offenses
First, the amendment increases the base offense level for offenses involving an animal
fighting venture from 10 to 16. This change reflects the increase in the statutory
maximum penalty from three to five years for offenses prohibited under 7 U.S.C.
§ 2156(a)–(e). See 18 U.S.C. § 49 (containing the criminal penalties for violations of
section 2156). The Commission also determined that the increased base offense level
better accounts for the cruelty and violence that is characteristic of these crimes, as
reflected in the extensive public comment and testimony noting that a defeated animal is
often severely injured or killed during or after a fight and that the animals used in these
crimes are commonly exposed to inhumane living conditions or other forms of neglect.
In making this change, the Commission was also informed by data evidencing a high
percentage of above range sentences in these cases. During fiscal years 2011 through
2014, almost one-third (31.0%) of the seventy-four offenders who received the base
offense level of 10 under §2E3.1 received an above range sentence, compared to a
national above range rate of 2.0 percent for all offenders. For those animal fighting
offenders sentenced above the range, the average extent of the upward departure was
more than twice the length of imprisonment at the high end of the guideline range,
resulting in an average sentence of 18 months (and a median sentence of 16 months).
Comparably, the amended base offense level will result in a guideline range of 12 to
18 months for the typical animal fighting venture offender who is in Criminal History
Category I and receives a three-level reduction for acceptance of responsibility under
§3E1.1 (Acceptance of Responsibility). Additionally, for offenders in the higher criminal
history categories, the guideline range at base offense level 16 allows for applicable
Chapter Three increases while remaining within the statutory maximum.
New Offenses Relating to Attending an Animal Fighting Venture
The amendment also establishes a base offense level of 10 in §2E3.1 if the defendant was
convicted under section 2156(a)(2)(B) for causing an individual under 16 to attend an
animal fighting venture. The Commission believes this level of punishment best reflects
Congress’s intent in creating this new crime. A base offense level of 10 for this new
offense will result in a guideline range (before acceptance of responsibility) of 6 to
12 months of imprisonment for offenders in Criminal History Category I, while allowing
for a guideline range approaching the three-year statutory maximum for offenders in
higher criminal history categories. The Commission also noted that assigning a base
offense level of 10 is consistent with the policy decision made by the Commission when
it assigned a base offense level of 10 to an animal fighting crime in 2008, which, at that
time, also had a three-year statutory maximum penalty. See USSG App. C, amend. 721
(effective November 1, 2008).
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Lastly, the amendment establishes a base offense level of 6 for the new class A
misdemeanor of attending an animal fighting venture prohibited by section 2156(a)(2)(A)
by including only the felony provisions of 7 U.S.C. §2156 in the Appendix A reference to
§2E3.1. Consistent with other Class A misdemeanor offenses, this base offense level is
established through application of §2X5.2 (Class A Misdemeanors (Not Covered by
Another Specific Offense Guideline)).
Departure Provision
The amendment also revises and expands the existing upward departure language in two
ways.
First, the amendment clarifies the circumstances in which an upward departure for
exceptional cruelty may be warranted. As reflected in the revised departure provision,
the base offense levels provided for animal fighting ventures in subsections (a)(1) and
(a)(3) reflect the fact that an animal fighting venture involves one or more violent fights
between animals and that a defeated animal often is severely injured in the fight, dies as a
result of the fight, or is killed afterward. The Commission heard testimony that in a
typical dog fight, dogs puncture and tear at each other, until one animal is too injured to
continue, and during a cock fight, roosters strike each other with their beaks and with
sharp blades that have been strapped to their legs, suffering punctured lungs, broken
bones, and pierced eyes. Nonetheless, as informed by public comment and testimony, the
Commission’s study indicates that some animal fighting offenses involve extraordinary
cruelty to an animal beyond that which is common to such crimes, such as killing an
animal in a way that prolongs the suffering of the animal. The Commission determined
that such extraordinary cruelty may fall outside the heartland of conduct encompassed by
the base offense level for animal fighting ventures and, therefore, that an upward
departure may be warranted in those cases.
Similarly, the amendment expands the existing departure provision to include offenses
involving animal fighting on an exceptional scale (such as offenses involving an
unusually large number of animals) as another example of conduct that may warrant an
upward departure. As with the example of extraordinary cruelty, the Commission
determined that the base offense level under the revised guideline may understate the
seriousness of the offense in those cases.
Effective Date: The effective date of this amendment is November 1, 2016.
3. Amendment: Section 2G2.1 is amended in subsection (b)(3) by strikingIf the offense
involved distribution” and inserting “If the defendant knowingly engaged in distribution”;
and in subsection (b)(4) by inserting “(A)” before “sadistic or masochistic”, and by
inserting after “violence” the following: “; or (B) an infant or toddler”.
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The Commentary to §2G2.1 captioned “Statutory Provisions” is amended by inserting at
the end the following: “For additional statutory provision(s), see Appendix A (Statutory
Index).”.
The Commentary to §2G2.1 captioned “Application Notes” is amended by redesignating
Notes 3, 4, 5, and 6 as Notes 5, 6, 7, and 8, respectively, and by inserting after Note 2 the
following new Notes 3 and 4:
“3. Application of Subsection (b)(3).— For purposes of subsection (b)(3), the
defendant ‘knowingly engaged in distribution’ if the defendant (A) knowingly
committed the distribution, (B) aided, abetted, counseled, commanded, induced,
procured, or willfully caused the distribution, or (C) conspired to distribute.
4. Interaction of Subsection (b)(4)(B) and Vulnerable Victim (§3A1.1(b)).—If
subsection (b)(4)(B) applies, do not apply §3A1.1(b).”.
Section 2G2.2 is amended in subsection (b)(3) by striking “If the offense involved”;
in subparagraphs (A), (C), (D), and (E) by striking “Distribution” and inserting “If the
offense involved distribution”;
in subparagraph (B) by striking “Distribution for the receipt, or expectation of receipt, of
a thing of value,” and inserting “If the defendant distributed in exchange for any valuable
consideration,”;
and in subparagraph (F) by striking “Distribution” and inserting “If the defendant
knowingly engaged in distribution,”;
and in subsection (b)(4) by inserting “(A)” before “sadistic or masochistic”, and by
inserting after “violence” the following: “; or (B) sexual abuse or exploitation of an
infant or toddler”.
The Commentary to §2G2.2 captioned “Statutory Provisions” is amended by inserting at
the end the following: “For additional statutory provision(s), see Appendix A (Statutory
Index).”.
The Commentary to §2G2.2 captioned “Application Notes” is amended in Note 1 by
striking the fourth undesignated paragraph as follows:
Distribution for the receipt, or expectation of receipt, of a thing of value, but not for
pecuniary gain’ means any transaction, including bartering or other in-kind transaction,
that is conducted for a thing of value, but not for profit. ‘Thing of value’ means anything
of valuable consideration. For example, in a case involving the bartering of child
pornographic material, the ‘thing of value’ is the child pornographic material received in
exchange for other child pornographic material bartered in consideration for the material
received.”,
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and inserting the following:
The defendant distributed in exchange for any valuable consideration’ means the
defendant agreed to an exchange with another person under which the defendant
knowingly distributed to that other person for the specific purpose of obtaining something
of valuable consideration from that other person, such as other child pornographic
material, preferential access to child pornographic material, or access to a child.”;
by redesignating Notes 2 through 7 as Notes 3, 5, 6, 7, 8, and 9, respectively;
by inserting after Note 1 the following new Note 2:
“2. Application of Subsection (b)(3)(F).— For purposes of subsection (b)(3)(F), the
defendant ‘knowingly engaged in distribution’ if the defendant (A) knowingly
committed the distribution, (B) aided, abetted, counseled, commanded, induced,
procured, or willfully caused the distribution, or (C) conspired to distribute.”;
in Note 3 (as so redesignated) by inserting “(A)” after “(b)(4)” both places such term
appears;
and by inserting after Note 3 (as so redesignated) the following new Note 4:
“4. Interaction of Subsection (b)(4)(B) and Vulnerable Victim (§3A1.1(b)).—If
subsection (b)(4)(B) applies, do not apply §3A1.1(b).”.
Section 2G3.1 is amended in subsection (b)(1) by striking “If the offense involved”;
in subparagraphs (A), (C), (D), and (E) by striking “Distribution” and inserting “If the
offense involved distribution”;
in subparagraph (B) by striking “Distribution for the receipt, or expectation of receipt, of
a thing of value,” and inserting “If the defendant distributed in exchange for any valuable
consideration,”;
and in subparagraph (F) by striking “Distribution” and inserting “If the defendant
knowingly engaged in distribution,”.
The Commentary to §2G3.1 captioned “Application Notes” is amended in Note 1 by
striking the fourth undesignated paragraph as follows:
Distribution for the receipt, or expectation of receipt, of a thing of value, but not for
pecuniary gain’ means any transaction, including bartering or other in-kind transaction,
that is conducted for a thing of value, but not for profit. ‘Thing of value’ means anything
of valuable consideration.”,
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and inserting the following:
The defendant distributed in exchange for any valuable consideration’ means the
defendant agreed to an exchange with another person under which the defendant
knowingly distributed to that other person for the specific purpose of obtaining something
of valuable consideration from that other person, such as other obscene material,
preferential access to obscene material, or access to a child.”;
by redesignating Notes 2 and 3 as Notes 3 and 4, respectively;
and by inserting after Note 1 the following new Note 2:
“2. Application of Subsection (b)(1)(F).— For purposes of subsection (b)(1)(F), the
defendant ‘knowingly engaged in distribution’ if the defendant (A) knowingly
committed the distribution, (B) aided, abetted, counseled, commanded, induced,
procured, or willfully caused the distribution, or (C) conspired to distribute.”.
Reason for Amendment: This amendment addresses circuit conflicts and application
issues related to the child pornography guidelines. One issue generally arises under both
the child pornography production guideline and the child pornography distribution
guideline when the offense involves victims who are unusually young and vulnerable.
The other two issues frequently arise when the offense involves a peer-to-peer file-
sharing program or network. These issues were noted by the Commission in its 2012
report to Congress on child pornography offenses. See United States Sentencing
Commission, “Report to the Congress: Federal Child Pornography Offenses,” at 33–35
(2012).
Offenses Involving Infants and Toddlers
First, the amendment addresses differences among the circuits when cases involve infant
and toddler victims. The production guideline at §2G2.1 (Sexually Exploiting a Minor
by Production of Sexually Explicit Visual or Printed Material; Custodian Permitting
Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in
Production) provides a 4-level enhancement if the offense involved a minor who had not
attained the age of 12 years and a 2-level enhancement if the minor had not attained the
age of 16 years. See §2G2.1(b)(1)(A)–(B). The non-production guideline at §2G2.2
(Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving,
Transporting, Shipping, Soliciting, or Advertising Material Involving the Sexual
Exploitation of a Minor; Possessing Material Involving the Sexual Exploitation of a
minor with Intent to Traffic; Possessing Material Involving the Sexual Exploitation of a
Minor) provides a 2-level enhancement if the material involved a prepubescent minor or
a minor who had not attained the age of 12 years. See §2G2.2(b)(2).
A circuit conflict has arisen as to whether a defendant who receives an age enhancement
under §§2G2.1 and 2G2.2 may also receive a vulnerable victim adjustment at §3A1.1
(Hate Crime Motivation or Vulnerable Victim) when the victim is extremely young and
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vulnerable, such as an infant or toddler. Section 3A1.1(b)(1) provides for a 2-level
increase if the defendant knew or should have known that a victim was a “vulnerable
victim,” which is defined in the accompanying commentary as a victim “who is unusually
vulnerable due to age, physical or mental condition, or who is otherwise particularly
susceptible to the criminal conduct.” See §3A1.1, comment. (n.2). The commentary also
provides that the vulnerable victim adjustment does not apply if the factor that makes the
victim a “vulnerable victim,” such as age, is incorporated in the offense guidelines,
“unless the victim was unusually vulnerable for reasons unrelated to age.” Id.
The Fifth and Ninth Circuits have held that it is permissible to apply both enhancements
in cases involving infant or toddler victims because their level of vulnerability is not fully
incorporated in the offense guidelines. See United States v. Jenkins, 712 F.3d 209, 214
(5th Cir. 2013); United States v. Wright, 373 F.3d 935, 943 (9th Cir. 2004). These
circuits have reasoned that although the victim’s small physical size and extreme
vulnerability tend to correlate with age, such characteristics are not the same as compared
to most children under 12 years. Jenkins, 712 F.3d at 214; Wright, 373 F.3d at 942–43.
The Fourth Circuit, by contrast, has held that the age enhancement and vulnerable victim
adjustment may not be simultaneously applied because the child pornography guidelines
fully address age-related factors. See United States v. Dowell, 771 F.3d 162, 175 (4th
Cir. 2014). The Fourth Circuit reasoned that cognitive development or psychological
susceptibility necessarily is related to age. Id.
The amendment resolves the circuit conflict by explicitly accounting for infant and
toddler victims in the child pornography guidelines. Specifically, the amendment revises
§§2G2.1 and 2G2.2 by adding a new basis for application of the “sadistic or masochistic”
enhancement when the offense involves infants or toddlers. The amendment amends
§2G2.1(b)(4) to provide for a 4-level increase “if the offense involved material that
portrays (A) sadistic or masochistic conduct or other depictions of violence; or (B) an
infant or toddler,” and amends §2G2.2(b)(4) to provide a 4-level increase “if the offense
involved material that portrays (A) sadistic or masochistic conduct or other depictions of
violence; or (B) sexual abuse or exploitation of an infant or toddler.” The accompanying
application note to each guideline provides that if subsection (b)(4)(B) applies, do not
apply the vulnerable victim adjustment in Chapter Three.
The amendment reflects the Commission’s view, based on testimony and public
comment, that child pornography offenses involving infants and toddlers warrant an
enhancement. Because application of the vulnerable victim adjustment necessarily relies
on a fact-specific inquiry, the Commission determined that expanding the “sadistic or
masochisticenhancement (§§2G2.1(b)(4) and 2G2.2(b)(4)) to include infant and toddler
victims would promote more consistent application of the child pornography guidelines
and reduce unwarranted sentencing disparities. In making its determination, the
Commission was informed by case law indicating that most circuits have found
depictions of the sexual abuse or exploitation of infants or toddlers involving penetration
or pain portray sadistic conduct. See, e.g., United States v. Hoey, 508 F.3d 687, 691 (1st
Cir. 2007) (“We agree with the many circuits which have found that images depicting the
sexual penetration of young and prepubescent children by adult males represent conduct
14
sufficiently likely to involve pain such as to support a finding that it is inherently
‘sadistic’ or similarly ‘violent’ . . . .”); United States v. Delmarle, 99 F.3d 80, 83 (2d Cir.
1996) (“[S]ubjection of a young child to a sexual act that would have to be painful is
excessively cruel and hence is sadistic . . . .”); United States v. Maurer, 639 F.3d 72, 79
(3d Cir. 2011) (“[W]e join other circuits in holding that the application of §2G2.2(b)(4) is
appropriate where an image depicts sexual activity involving a prepubescent minor that
would have caused pain to the minor.”); United States v. Burgess, 684 F.3d 445, 454 (4th
Cir. 2012) (image depicting vaginal penetration of five-year-old girl by adult male, which
would “necessarily cause physical pain to the victim,” qualified for sentencing
enhancement under §2G2.2(b)); United States v. Lyckman, 235 F.3d 234, 238–39 (5th
Cir. 2000) (agreeing with the Second, Seventh, and Eleventh Circuits that application of
subsection (b)(4) is warranted when the image depicts the physical penetration of a
young child by an adult male.”); United States v. Groenendal, 557 F.3d 419, 424–26 (6th
Cir. 2009) (penetration of a prepubescent child by an adult male constitutes inherently
sadistic conduct that justifies application of §2G2.2(b)(4)); United States v. Meyers, 355
F.3d 1040, 1043 (7th Cir. 2004) (finding vaginal intercourse between a prepubescent girl
and an adult male sadistic); United States v. Belflower, 390 F.3d 560, 562 (8th Cir. 2004)
(images involving the anal penetration of minor boy or girl adult male are per se sadistic
or violent within the meaning of subsection (b)(4)); United States v. Henderson, 649 F.3d
995 (9th Cir. 2010) (vaginal penetration of prepubescent minor qualifies for (b)(4)
enhancement); United States v. Kimler, 335 F.3d 1132, 1143 (10th Cir. 2003) (finding no
expert testimony necessary for a sentence enhancement [(b)(4)] when the images
depicted penetration of prepubescent children by adults); United States v. Bender, 290
F.3d 1279, 1286 (11th Cir. 2002) (photograph was sadistic within the meaning of
subsection (b)(4) when it depicts the “subjugation of a young child to a sexual act that
would have to be painful”). The Commission intends the new enhancement to apply to
any sexual images of an infant or toddler.
The Two and Five Level Distribution Enhancements
Next, the amendment addresses differences among the circuits involving application of
the tiered distribution enhancements in §2G2.2. Section 2G2.2(b)(3) provides for an
increase for distribution of child pornographic material ranging from 2 to 7 levels
depending on certain factors. See §2G2.2(b)(3)(A)–(F). The circuits have reached
different conclusions regarding the mental state required for application of the 2-level
enhancement for “generic” distribution as compared to the 5-level enhancement for
distribution not for pecuniary gain. The circuit conflicts involving these two
enhancements have arisen frequently, although not exclusively, in cases involving the use
of peer-to-peer file-sharing programs or networks.
Peer-to-Peer File-Sharing Programs
The Commission’s 2012 report to Congress discussed the use of file-sharing programs,
such as Peer-to-Peer (“P2P”), in the context of cases involving distribution of child
pornography. See 2012 Report at 33–35, 48–62. Specifically, P2P is a software
application that enables computer users to share files easily over the Internet. These
15
applications do not require a central server or use of email. Rather, the file-sharing
application allows two or more users to essentially have access each other’s computers
and to directly swap files from their computers. Some file-sharing programs require a
user to designate files to be shared during the installation process, meaning that at the
time of installation the user can “opt in” to share files, and the software will automatically
scan the user’s computer and then compile a list of files to share. Other programs employ
a default file-sharing setting, meaning the user can “opt out” of automatically sharing
files by changing the default setting to limit which, if any, files are available for sharing.
Once the user has downloaded and set up the file-sharing software, the user can begin
searching for files shared on the connected network using search keywords in the same
way one regularly uses a search engine such as Google. Users may choose to “opt in” for
a variety of reasons, including, for example, to obtain faster download speeds, to have
access to a greater range of material, or because the particular site mandates sharing.
The 2-Level Distribution Enhancement
The circuits have reached different conclusions regarding whether application of the 2-
level distribution enhancement at §2G2.2(b)(3)(F) requires a mental state (mens rea),
particularly in cases involving use of a file-sharing program or network. The Fifth,
Tenth, and Eleventh Circuits have held that the 2-level distribution enhancement applies
if the defendant used a file-sharing program, regardless of whether the defendant did so
purposefully, knowingly, or negligently. See, e.g., United States v. Baker, 742 F.3d 618,
621 (5th Cir. 2014); United States v. Ray, 704 F.3d 1307, 1312 (10th Cir. 2013); United
States v. Creel, 783 F.3d 1357, 1360 (11th Cir. 2015). The Second, Fourth, and Seventh
Circuits have held that the 2-level distribution enhancement requires a showing that the
defendant knew of the file-sharing properties of the program. See, e.g., United States v.
Baldwin, 743 F.3d 357, 361 (2d Cir. 2015) (requiring knowledge); United States v.
Robinson, 714 F.3d 466, 468 (7th Cir. 2013) (knowledge); United States v. Layton, 564
F.3d 330, 335 (4th Cir. 2009) (knowledge or reckless disregard). The Eighth Circuit has
held that knowledge is required, but knowledge may be inferred from the fact that a file-
sharing program was used, absent “concrete evidence” of ignorance. See United States v.
Dodd, 598 F.3d 449, 452 (8th Cir. 2010). The Sixth Circuit has held that there is a
“presumption” that “users of file-sharing software understand others can access their
files.United States v. Conner, 521 Fed. App’x 493, 499 (6th Cir. 2013); see also United
States v. Abbring, 788 F.3d 565, 567 (6th Cir. 2015) (“the whole point of a file-sharing
program is to share, sharing creates a transfer, and transferring equals distribution”).
The amendment generally adopts the approach of the Second, Fourth, and Seventh
Circuits. It amends §2G2.2(b)(3)(F) to provide that the 2-level distribution enhancement
applies if “the defendant knowingly engaged in distribution.” Based on testimony, public
comment, and data analysis, the Commission determined that the 2-level distribution
enhancement is appropriate only in cases in which the defendant knowingly engaged in
distribution. An accompanying application note clarifies that: “For purposes of
subsection (b)(3)(F), the defendant ‘knowingly engaged in distribution’ if the defendant
(A) knowingly committed the distribution, (B) aided, abetted, counseled, commanded,
induced, procured, or willfully caused the distribution, or (C) conspired to distribute.”
16
Similar changes are made to the 2-level distribution enhancement at §2G2.1(b)(3) and the
obscenity guideline, §2G3.1 (Importing, Mailing, or Transporting Obscene Matter;
Transferring Obscene Matter to a Minor; Misleading Domain Names), which contains a
similarly tiered distribution enhancement.
The 5-Level Distribution Enhancement
Finally, the amendment responds to differences among the circuits in applying the 5-level
enhancement for distribution not for pecuniary gain at §2G2.2(b)(3)(B). While courts
generally agree that mere use of a file-sharing program or network, without more, is
insufficient for application of the 5-level distribution enhancement, the circuits have
taken distinct approaches with respect to the circumstances under which the 5-level rather
than the 2-level enhancement is appropriate in such circumstances. The Fourth Circuit
has held that the 5-level distribution enhancement applies when the defendant (1)
“knowingly made child pornography in his possession available to others by some
means”; and (2) did so “for the specific purpose of obtaining something of valuable
consideration, such as more pornography.” United States v. McManus, 734 F.3d 315,
319 (4th Cir. 2013). In contrast, while holding that the 5-level enhancement applies
when the defendant knew he was distributing child pornographic material in exchange for
a thing of value, the Fifth Circuit has indicated that when the defendant knowingly uses
file-sharing software, the requirements for the 5-level enhancement are generally
satisfied. See United States v. Groce, 784 F.3d 291, 294 (5th Cir. 2015).
The amendment revises §2G2.2(b)(3)(B) and commentary to clarify that the 5-level
enhancement applies “if the defendant distributed in exchange for any valuable
consideration.” The amendment further explains in the accompanying application note
that this means “the defendant agreed to an exchange with another person under which
the defendant knowingly distributed to that other person for the specific purpose of
obtaining something of valuable consideration from that other person, such as other child
pornographic material, preferential access to child pornographic material, or access to a
child.” The amendment makes parallel changes to the obscenity guideline at §2G3.1,
which has a similar tiered distribution enhancement.
As with the 2-level distribution enhancement, the amendment resolves differences among
the circuits in applying the 5-level distribution enhancement by clarifying the mental state
required for distribution of child pornographic material for non-pecuniary gain,
particularly when the case involves a file-sharing program or network. The Commission
determined that the amendment is an appropriate way to account for the higher level of
culpability when the defendant had the specific purpose of distributing child
pornographic material to another person in exchange for valuable consideration.
Effective Date: The effective date of this amendment is November 1, 2016.
17
4. Amendment: Section 2L1.1 is amended in subsection (b)(4) by striking the following:
“If the defendant smuggled, transported, or harbored a minor who was unaccompanied by
the minor’s parent or grandparent, increase by 2 levels.”,
and inserting the following:
“If the offense involved the smuggling, transporting, or harboring of a minor who was
unaccompanied by the minor’s parent, adult relative, or legal guardian, increase by 4
levels.”.
The Commentary to §2L1.1 captioned “Application Notes” is amended in Note 1 by
striking the third undesignated paragraph as follows:
Aggravated felony’ is defined in the Commentary to §2L1.2 (Unlawfully Entering or
Remaining in the United States).”,
and inserting the following:
Aggravated felony’ has the meaning given that term in section 101(a)(43) of the
Immigration and Nationality Act (8 U.S.C. § 1101(a)(43)), without regard to the date of
conviction for the aggravated felony.”;
in the paragraph that begins “ Minor’ means” by striking “16 years” and inserting “18
years”;
and by inserting after the paragraph that begins “ Parent’ means” the following new
paragraph:
Bodily injury,’ ‘serious bodily injury,’ and ‘permanent or life-threatening bodily injury’
have the meaning given those terms in the Commentary to §1B1.1 (Application
Instructions).”;
by renumbering Notes 2 through 6 according to the following table:
Before Amendment After Amendment
4 2
5 3
6 5
2 6
3 7
and by rearranging those Notes, as so renumbered, to place them in proper order;
and by inserting after Note 3 (as so renumbered) the following new Note 4:
18
“4. Application of Subsection (b)(7) to Conduct Constituting Criminal Sexual
Abuse.—Consistent with Application Note 1(L) of §1B1.1 (Application
Instructions), ‘serious bodily injury’ is deemed to have occurred if the offense
involved conduct constituting criminal sexual abuse under 18 U.S.C. § 2241 or
§ 2242 or any similar offense under state law.”.
Section 2L1.2 is amended by striking subsections (a) and (b) as follows:
(a) Base Offense Level: 8
(b) Specific Offense Characteristic
(1) Apply the Greatest:
If the defendant previously was deported, or unlawfully remained
in the United States, after
(A) a conviction for a felony that is (i) a drug trafficking
offense for which the sentence imposed exceeded 13
months; (ii) a crime of violence; (iii) a firearms offense;
(iv) a child pornography offense; (v) a national security or
terrorism offense; (vi) a human trafficking offense; or (vii)
an alien smuggling offense, increase by 16 levels if the
conviction receives criminal history points under Chapter
Four or by 12 levels if the conviction does not receive
criminal history points;
(B) a conviction for a felony drug trafficking offense for which
the sentence imposed was 13 months or less, increase by 12
levels if the conviction receives criminal history points
under Chapter Four or by 8 levels if the conviction does not
receive criminal history points;
(C) a conviction for an aggravated felony, increase by 8 levels;
(D) a conviction for any other felony, increase by 4 levels; or
(E) three or more convictions for misdemeanors that are crimes
of violence or drug trafficking offenses, increase by 4
levels.”,
and inserting the following:
(a) Base Offense Level: 8
(b) Specific Offense Characteristics
19
(1) (Apply the Greater) If the defendant committed the instant offense
after sustaining
(A) a conviction for a felony that is an illegal reentry offense,
increase by 4 levels; or
(B) two or more convictions for misdemeanors under 8 U.S.C.
§ 1325(a), increase by 2 levels.
(2) (Apply the Greatest) If, before the defendant was ordered deported
or ordered removed from the United States for the first time, the
defendant sustained—
(A) a conviction for a felony offense (other than an illegal
reentry offense) for which the sentence imposed was five
years or more, increase by 10 levels;
(B) a conviction for a felony offense (other than an illegal
reentry offense) for which the sentence imposed was two
years or more, increase by 8 levels;
(C) a conviction for a felony offense (other than an illegal
reentry offense) for which the sentence imposed exceeded
one year and one month, increase by 6 levels;
(D) a conviction for any other felony offense (other than an
illegal reentry offense), increase by 4 levels; or
(E) three or more convictions for misdemeanors that are crimes
of violence or drug trafficking offenses, increase by 2
levels.
(3) (Apply the Greatest) If, at any time after the defendant was ordered
deported or ordered removed from the United States for the first
time, the defendant engaged in criminal conduct resulting in—
(A) a conviction for a felony offense (other than an illegal
reentry offense) for which the sentence imposed was five
years or more, increase by 10 levels;
(B) a conviction for a felony offense (other than an illegal
reentry offense) for which the sentence imposed was two
years or more, increase by 8 levels;
20
(C) a conviction for a felony offense (other than an illegal
reentry offense) for which the sentence imposed exceeded
one year and one month, increase by 6 levels;
(D) a conviction for any other felony offense (other than an
illegal reentry offense), increase by 4 levels; or
(E) three or more convictions for misdemeanors that are crimes
of violence or drug trafficking offenses, increase by 2
levels.”.
The Commentary to §2L1.2 captioned “Statutory Provisions” is amended by striking
“8 U.S.C. § 1325(a) (second or subsequent offense only), 8 U.S.C. § 1326” and inserting
“8 U.S.C. § 1253, § 1325(a) (second or subsequent offense only), § 1326”.
The Commentary to §2L1.2 captioned “Application Notes” is amended by striking Notes
1 through 7 as follows:
“1. Application of Subsection (b)(1).—
(A) In General.—For purposes of subsection (b)(1):
(i) A defendant shall be considered to be deported after a conviction if
the defendant has been removed or has departed the United States
while an order of exclusion, deportation, or removal was
outstanding.
(ii) A defendant shall be considered to be deported after a conviction if
the deportation was subsequent to the conviction, regardless of
whether the deportation was in response to the conviction.
(iii) A defendant shall be considered to have unlawfully remained in
the United States if the defendant remained in the United States
following a removal order issued after a conviction, regardless of
whether the removal order was in response to the conviction.
(iv) Subsection (b)(1) does not apply to a conviction for an offense
committed before the defendant was eighteen years of age unless
such conviction is classified as an adult conviction under the laws
of the jurisdiction in which the defendant was convicted.
(B) Definitions.—For purposes of subsection (b)(1):
(i) ‘Alien smuggling offense’ has the meaning given that term in
section 101(a)(43)(N) of the Immigration and Nationality Act (8
U.S.C. § 1101(a)(43)(N)).
21
(ii) ‘Child pornography offense’ means (I) an offense described in 18
U.S.C. § 2251, § 2251A, § 2252, § 2252A, or § 2260; or (II) an
offense under state or local law consisting of conduct that would
have been an offense under any such section if the offense had
occurred within the special maritime and territorial jurisdiction of
the United States.
(iii) ‘Crime of violence’ means any of the following offenses under
federal, state, or local law: murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses (including where consent
to the conduct is not given or is not legally valid, such as where
consent to the conduct is involuntary, incompetent, or coerced),
statutory rape, sexual abuse of a minor, robbery, arson, extortion,
extortionate extension of credit, burglary of a dwelling, or any
other offense under federal, state, or local law that has as an
element the use, attempted use, or threatened use of physical force
against the person of another.
(iv) Drug trafficking offensemeans an offense under federal, state, or
local law that prohibits the manufacture, import, export,
distribution, or dispensing of, or offer to sell a controlled substance
(or a counterfeit substance) or the possession of a controlled
substance (or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense.
(v) Firearms offensemeans any of the following:
(I) An offense under federal, state, or local law that prohibits
the importation, distribution, transportation, or trafficking
of a firearm described in 18 U.S.C. § 921, or of an
explosive material as defined in 18 U.S.C. § 841(c).
(II) An offense under federal, state, or local law that prohibits
the possession of a firearm described in 26 U.S.C.
§ 5845(a), or of an explosive material as defined in 18
U.S.C. § 841(c).
(III) A violation of 18 U.S.C. § 844(h).
(IV) A violation of 18 U.S.C. § 924(c).
(V) A violation of 18 U.S.C. § 929(a).
(VI) An offense under state or local law consisting of conduct
that would have been an offense under subdivision (III),
22
(IV), or (V) if the offense had occurred within the special
maritime and territorial jurisdiction of the United States.
(vi) Human trafficking offense’ means (I) any offense described in 18
U.S.C. § 1581, § 1582, § 1583, § 1584, § 1585, § 1588, § 1589,
§ 1590, or § 1591; or (II) an offense under state or local law
consisting of conduct that would have been an offense under any
such section if the offense had occurred within the special
maritime and territorial jurisdiction of the United States.
(vii) Sentence imposedhas the meaning given the term sentence of
imprisonment’ in Application Note 2 and subsection (b) of §4A1.2
(Definitions and Instructions for Computing Criminal History),
without regard to the date of the conviction. The length of the
sentence imposed includes any term of imprisonment given upon
revocation of probation, parole, or supervised release, but only if
the revocation occurred before the defendant was deported or
unlawfully remained in the United States.
(viii) Terrorism offense’ means any offense involving, or intending to
promote, a ‘Federal crime of terrorism, as that term is defined in
18 U.S.C. § 2332b(g)(5).
(C) Prior Convictions.—In determining the amount of an enhancement under
subsection (b)(1), note that the levels in subsections (b)(1)(A) and (B)
depend on whether the conviction receives criminal history points under
Chapter Four (Criminal History and Criminal Livelihood), while
subsections (b)(1)(C), (D), and (E) apply without regard to whether the
conviction receives criminal history points.
2. Definition of ‘Felony’.—For purposes of subsection (b)(1)(A), (B), and (D),
felony’ means any federal, state, or local offense punishable by imprisonment for
a term exceeding one year.
3. Application of Subsection (b)(1)(C).—
(A) Definitions.—For purposes of subsection (b)(1)(C), ‘aggravated felony
has the meaning given that term in section 101(a)(43) of the Immigration
and Nationality Act (8 U.S.C. § 1101(a)(43)), without regard to the date of
conviction for the aggravated felony.
(B) In General.—The offense level shall be increased under subsection
(b)(1)(C) for any aggravated felony (as defined in subdivision (A)), with
respect to which the offense level is not increased under subsections
(b)(1)(A) or (B).
23
4. Application of Subsection (b)(1)(E).—For purposes of subsection (b)(1)(E):
(A) ‘Misdemeanormeans any federal, state, or local offense punishable by a
term of imprisonment of one year or less.
(B) ‘Three or more convictions’ means at least three convictions for offenses
that are not treated as a single sentence pursuant to subsection (a)(2) of
§4A1.2 (Definitions and Instructions for Computing Criminal History).
5. Aiding and Abetting, Conspiracies, and Attempts.—Prior convictions of offenses
counted under subsection (b)(1) include the offenses of aiding and abetting,
conspiring, and attempting, to commit such offenses.
6. Computation of Criminal History Points.—A conviction taken into account under
subsection (b)(1) is not excluded from consideration of whether that conviction
receives criminal history points pursuant to Chapter Four, Part A (Criminal
History).
7. Departure Based on Seriousness of a Prior Conviction.—There may be cases in
which the applicable offense level substantially overstates or understates the
seriousness of a prior conviction. In such a case, a departure may be warranted.
Examples: (A) In a case in which subsection (b)(1)(A) or (b)(1)(B) does not
apply and the defendant has a prior conviction for possessing or transporting a
quantity of a controlled substance that exceeds a quantity consistent with personal
use, an upward departure may be warranted. (B) In a case in which the 12-level
enhancement under subsection (b)(1)(A) or the 8-level enhancement in subsection
(b)(1)(B) applies but that enhancement does not adequately reflect the extent or
seriousness of the conduct underlying the prior conviction, an upward departure
may be warranted. (C) In a case in which subsection (b)(1)(A) applies, and the
prior conviction does not meet the definition of aggravated felony at 8 U.S.C.
§ 1101(a)(43), a downward departure may be warranted.”;
by redesignating Notes 8 and 9 as Notes 6 and 7, respectively, and inserting before Note
6 (as so redesignated) the following new Notes 1, 2, 3, 4, and 5:
“1. In General.—
(A) ‘Ordered Deported or Ordered Removed from the United States for the
First Time’.—For purposes of this guideline, a defendant shall be
considered ‘ordered deported or ordered removed from the United States’
if the defendant was ordered deported or ordered removed from the United
States based on a final order of exclusion, deportation, or removal,
regardless of whether the order was in response to a conviction. ‘For the
first timerefers to the first time the defendant was ever the subject of
such an order.
24
(B) Offenses Committed Prior to Age Eighteen.—Subsections (b)(1), (b)(2),
and (b)(3) do not apply to a conviction for an offense committed before
the defendant was eighteen years of age unless such conviction is
classified as an adult conviction under the laws of the jurisdiction in which
the defendant was convicted.
2. Definitions.—For purposes of this guideline:
‘Crime of violence’ means any of the following offenses under federal, state, or
local law: murder, voluntary manslaughter, kidnapping, aggravated assault, a
forcible sex offense, robbery, arson, extortion, the use or unlawful possession of a
firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18
U.S.C. § 841(c), or any other offense under federal, state, or local law that has as
an element the use, attempted use, or threatened use of physical force against the
person of another. ‘Forcible sex offense’ includes where consent to the conduct is
not given or is not legally valid, such as where consent to the conduct is
involuntary, incompetent, or coerced. The offenses of sexual abuse of a minor
and statutory rape are included only if the sexual abuse of a minor or statutory
rape was (A) an offense described in 18 U.S.C. § 2241(c) or (B) an offense under
state law that would have been an offense under section 2241(c) if the offense had
occurred within the special maritime and territorial jurisdiction of the United
States. Extortion’ is obtaining something of value from another by the wrongful
use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.
Drug trafficking offensemeans an offense under federal, state, or local law that
prohibits the manufacture, import, export, distribution, or dispensing of, or offer
to sell a controlled substance (or a counterfeit substance) or the possession of a
controlled substance (or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense.
Felony’ means any federal, state, or local offense punishable by imprisonment
for a term exceeding one year.
Illegal reentry offense’ means (A) an offense under 8 U.S.C. § 1253 or § 1326, or
(B) a second or subsequent offense under 8 U.S.C. § 1325(a).
Misdemeanor’ means any federal, state, or local offense punishable by a term of
imprisonment of one year or less.
Sentence imposedhas the meaning given the term ‘sentence of imprisonment’ in
Application Note 2 and subsection (b) of §4A1.2 (Definitions and Instructions for
Computing Criminal History). The length of the sentence imposed includes any
term of imprisonment given upon revocation of probation, parole, or supervised
release.
25
3. Criminal History Points.—For purposes of applying subsections (b)(1), (b)(2),
and (b)(3), use only those convictions that receive criminal history points under
§4A1.1(a), (b), or (c). In addition, for purposes of subsections (b)(1)(B),
(b)(2)(E), and (b)(3)(E), use only those convictions that are counted separately
under §4A1.2(a)(2).
A conviction taken into account under subsection (b)(1), (b)(2), or (b)(3) is not
excluded from consideration of whether that conviction receives criminal history
points pursuant to Chapter Four, Part A (Criminal History).
4. Cases in Which Sentences for An Illegal Reentry Offense and Another Felony
Offense were Imposed at the Same Time.—There may be cases in which the
sentences for an illegal reentry offense and another felony offense were imposed
at the same time and treated as a single sentence for purposes of calculating the
criminal history score under §4A1.1(a), (b), and (c). In such a case, use the illegal
reentry offense in determining the appropriate enhancement under subsection
(b)(1), if it independently would have received criminal history points. In
addition, use the prior sentence for the other felony offense in determining the
appropriate enhancement under subsection (b)(3), if it independently would have
received criminal history points.
5. Departure Based on Seriousness of a Prior Offense.—There may be cases in
which the offense level provided by an enhancement in subsection (b)(2) or (b)(3)
substantially understates or overstates the seriousness of the conduct underlying
the prior offense, because (A) the length of the sentence imposed does not reflect
the seriousness of the prior offense; (B) the prior conviction is too remote to
receive criminal history points (see §4A1.2(e)); or (C) the time actually served
was substantially less than the length of the sentence imposed for the prior
offense. In such a case, a departure may be warranted.”.
The Commentary to §5G1.3 captioned “Application Notes” is amended in Note 2(B) by
striking “an aggravated felony” and inserting “a prior conviction”.
Reason for Amendment: This multi-part amendment is a result of the Commission’s
multi-year study of immigration offenses and related guidelines, and reflects extensive
data collection and analysis relating to immigration offenses and offenders. Based on this
data, legal analysis, and public comment, the Commission identified a number of specific
areas where changes were appropriate. The first part of this amendment makes several
discrete changes to the alien smuggling guideline, §2L1.1 (Smuggling, Transporting, or
Harboring an Unlawful Alien), while the second part significantly revises the illegal
reentry guideline, §2L1.2 (Unlawfully Entering or Remaining in the United States).
Alien Smuggling
The first part of the amendment amends the alien smuggling guideline (§2L1.1). A 2014
letter from the Deputy Attorney General asked the Commission to examine several
26
aspects of this guideline in light of changing circumstances surrounding the commission
of these offenses. See Letter from James M. Cole to Hon. Patti B. Saris (Oct. 9, 2014).
In response, the Commission undertook a data analysis that, in conjunction with
additional public comment, suggested two primary areas for change in the guideline.
Unaccompanied Minors
The specific offense characteristic at §2L1.1(b)(4) provides an enhancement “[i]f the
defendant smuggled, transported, or harbored a minor who was unaccompanied by the
minor’s parent or grandparent.” The amendment makes several changes to this
enhancement.
First, the amendment increases the enhancement at subsection (b)(4) from 2 levels to 4
levels, and broadens its scope to offense-based rather than defendant-based. These two
changes were made in light of data, testimony, and public comment indicating that: (1) in
recent years there has been a significant increase in the number of unaccompanied minors
smuggled into the United States; (2) unaccompanied minors being smuggled are often
exposed to deprivation and physical danger (including sexual abuse); (3) the smuggling
of unaccompanied minors places a particularly severe burden on public resources when
they are taken into custody; and (4) alien smuggling is typically conducted by
multimember commercial enterprises that accept smuggling victims without regard to
their age, such that an individual defendant is likely to be aware of the risk that
unaccompanied minors are being smuggled as part of the offense.
Second, the amendment narrows the scope of the enhancement at subsection (b)(4) by
revising the meaning of an “unaccompanied” minor. Prior to the amendment, the
enhancement did not apply if the minor was accompanied by the minor’s parent or
grandparent. The amendment narrows the class of offenders who would receive the
enhancement by specifying that the enhancement does not apply if the minor was
accompanied by the minor’s “parent, adult relative, or legal guardian.” This change
reflects the view that minors who are accompanied by a parent or another responsible
adult relative or legal guardian ordinarily are not subject to the same level of risk as
minors unaccompanied by such adults.
Third, the amendment expands the definition of “minor” in the guideline, as it relates to
the enhancement in subsection (b)(4), to include an individual under the age of 18. The
guideline currently defines “minor” to include only individuals under 16 years of age.
The Commission determined that an expanded definition of minor that includes 16- and
17-year-olds is consistent with other aspects of federal immigration law, including the
statute assigning responsibility for unaccompanied minors under age 18 to the
Department of Health and Human Services. See 6 U.S.C. § 279(g)(2)(B). The
Commission also believed that it was appropriate to conform the definition of minor in
the alien smuggling guideline to the definition of minor in §3B1.4 (Using a Minor to
Commit a Crime).
27
Clarification of the Enhancement Applicable to Sexual Abuse of Aliens
The amendment addresses offenses in which an alien (whether or not a minor) is sexually
abused. Specifically, it ensures that a “serious bodily injury” enhancement of 4 levels
will apply in such a case. It achieves this by amending the commentary to §2L1.1 to
clarify that the term “serious bodily injury” included in subsection (b)(7)(B) has the
meaning given that term in the commentary to §1B1.1 (Application Instructions). That
instruction states that “serious bodily injury” is deemed to have occurred if the offense
involved conduct constituting criminal sexual abuse under 18 U.S.C. § 2241 or § 2242 or
any similar offense under state law.
The Commission’s data indicated that the (b)(7)(B) enhancement has not been applied in
some cases in which a smuggled alien had been sexually assaulted. The Commission
determined that this clarification is warranted to ensure that the 4-level enhancement is
consistently applied when the offense involves the sexual abuse of an alien.
Illegal Reentry
The second part of the amendment is the product of the Commission’s multi-year study
of the illegal reentry guideline. In considering this amendment, the Commission was
informed by the Commission’s 2015 report, Illegal Reentry Offenses; its previous
consideration of the “categorical approach” in the context of the definition of “crimes of
violence”; and extensive public testimony and public comment, in particular from judges
from the southwest border districts where the majority of illegal reentry prosecutions
occur.
The amendment responds to three primary concerns. First, the Commission has received
significant comment over several years from courts and stakeholders that the “categorical
approach” used to determine the particular level of enhancement under the existing
guideline is overly complex and resource-intensive and often leads to litigation and
uncertainty. The existing guideline’s single specific offense characteristic provides for
enhancements of between 4 levels and 16 levels, based on the nature of a defendant’s
most serious conviction that occurred before the defendant was “deported” or
“unlawfully remained in the United States.” Determining whether a predicate conviction
qualifies for a particular level of enhancement requires application of the categorical
approach to the penal statute underlying the prior conviction. See generally United States
v. Taylor, 495 U.S. 575 (1990) (establishing the categorical approach). Instead of the
categorical approach, the amendment adopts a much simpler sentence-imposed model for
determining the applicability of predicate convictions. The level of the sentencing
enhancement for a prior conviction generally will be determined by the length of the
sentence imposed for the prior offense, not by the type of offense for which the defendant
had been convicted. The definition of “sentence imposed” is the same definition that
appears in Chapter Four of the Guidelines Manual.
Second, comment received by the Commission and sentencing data indicated that the
existing 16- and 12-level enhancements for certain prior felonies committed before a
28
defendant’s deportation were overly severe. In fiscal year 2015, only 29.7 percent of
defendants who received the 16-level enhancement were sentenced within the applicable
sentencing guideline range, and only 32.4 percent of defendants who received the 12-
level enhancement were sentenced within the applicable sentencing guideline range.
Third, the Commission’s research identified a concern that the existing guideline did not
account for other types of criminal conduct committed by illegal reentry offenders. The
Commission’s 2015 report found that 48.0 percent of illegal reentry offenders were
convicted of at least one offense (other than their instant illegal reentry conviction) after
their first deportations.
The amendment addresses these concerns by accounting for prior criminal conduct in a
broader and more proportionate manner. The amendment reduces somewhat the level of
enhancements for criminal conduct occurring before the defendant’s first order of
deportation and adds a new enhancement for criminal conduct occurring after the
defendant’s first order of deportation. It also responds to concerns that prior convictions
for illegal reentry offenses may not be adequately accounted for in the existing guideline
by adding an enhancement for prior illegal reentry and multiple prior illegal entry
convictions.
The manner in which the amendment responds to each of these concerns is discussed in
more detail below.
Accounting for Prior Illegal Reentry Offenses
The amendment provides at subsection (b)(1) a new tiered enhancement based on prior
convictions for illegal reentry offenses under 8 U.S.C. § 1253, § 1325(a), or § 1326. A
defendant who has one or more felony illegal reentry convictions will receive an increase
of 4 levels. “Illegal reentry offense” is defined in the commentary to include all
convictions under 8 U.S.C. §§ 1253 (failure to depart after an order of removal) and 1326
(illegal reentry), as well as second or subsequent illegal entry convictions under
§ 1325(a). A defendant who has two or more misdemeanor illegal entry convictions
under 8 U.S.C. § 1325(a) will receive an increase of 2 levels.
The Commission’s data indicates that the extent of a defendant’s history of illegal reentry
convictions is associated with the number of his or her prior deportations or removals
from the United States, with the average illegal reentry defendant having been removed
from the United States 3.2 times. Illegal Reentry Offenses, at 14. Over one-third
(38.1%) of the defendants were previously deported after an illegal entry or reentry
conviction. Id. at 15. The Commission determined that a defendant’s demonstrated
history of violating §§ 1325(a) and 1326 is appropriately accounted for in a separate
enhancement. Because defendants with second or successive § 1325(a) convictions
(whether they were charged as felonies or misdemeanors) have entered illegally more
than once, the Commission determined that this conduct is appropriately accounted for
under this enhancement.
29
For a defendant with a conviction under § 1326, or a felony conviction under § 1325(a),
the 4-level enhancement in the new subsection (b)(1)(A) is identical in magnitude to the
enhancement the defendant would receive under the existing subsection (b)(1)(D). The
Commission concluded that an enhancement is also appropriate for defendants previously
convicted of two or more misdemeanor offenses under § 1325(a).
Accounting for Other Prior Convictions
Subsections (b)(2) and (b)(3) of the amended guideline account for convictions (other
than illegal entry or reentry convictions) primarily through a sentence-imposed approach,
which is similar to how Chapter Four of the Guidelines Manual determines a defendant’s
criminal history score based on his or her prior convictions. The two subsections are
intended to divide the defendant’s criminal history into two time periods. Subsection
(b)(2) reflects the convictions, if any, that the defendant sustained before being ordered
deported or removed from the United States for the first time. Subsection (b)(3) reflects
the convictions, if any, that the defendant sustained after that event (but only if the
criminal conduct that resulted in the conviction took place after that event).
The specific offense characteristics at subsections (b)(2) and (b)(3) each contain a parallel
set of enhancements of:
10 levels for a prior felony conviction that received a sentence of
imprisonment of five years or more;
8 levels for a prior felony conviction that received a sentence of two years
or more;
6 levels for a prior felony conviction that received a sentence exceeding
one year and one month;
4 levels for any other prior felony conviction
2 levels for three or more convictions for misdemeanors that are crimes of
violence or drug trafficking offenses.
The (b)(2) and (b)(3) specific offense characteristics are to be calculated separately, but
within each specific offense characteristic, a defendant may receive only the single
greatest applicable increase.
The Commission determined that the new specific offense characteristics more
appropriately provide for incremental punishment to reflect the varying levels of
culpability and risk of recidivism reflected in illegal reentry defendants’ prior
convictions. The (b)(2) specific offense characteristic reflects the same general rationale
as the illegal reentry statute’s increased statutory maximum penalties for offenders with
certain types of serious pre-deportation predicate offenses (in particular, “aggravated
felonies” and “felonies”). See 8 U.S.C. § 1326(b)(1) and (b)(2). The Commission’s data
analysis of offenders’ prior felony convictions showed that the more serious types of
offenses, such as drug-trafficking offenses, crimes of violence, and sex offenses, tended
to receive sentences of imprisonment of two years or more, while the less serious felony
30
offenses, such as felony theft or drug possession, tended to receive much shorter
sentences. The sentence-length benchmarks in (b)(2) are based on this data.
The (b)(3) specific offense characteristic focuses on post-reentry criminal conduct which,
if it occurred after a defendant’s most recent illegal reentry, would receive no
enhancement under the existing guideline. The Commission concluded that a defendant
who sustains criminal convictions occurring before and after the defendant’s first order of
deportation warrants separate sentencing enhancement.
The Commission concluded that the length of sentence imposed by a sentencing court is a
strong indicator of the court’s assessment of the seriousness of the predicate offense at
the time, and this approach is consistent with how criminal history is generally scored in
the Chapter Four of the Guidelines Manual. In amending the guideline, the Commission
also took into consideration public testimony and comment indicating that tiered
enhancements based on the length of the sentence imposed, rather than the classification
of a prior offense under the categorical approach, would greatly simplify application of
the guideline. With respect an offender’s prior felony convictions, the amendment
eliminates the use of the categorical approach, which has been criticized as cumbersome
and overly legalistic.
The amendment retains the use of the categorical approach for predicate misdemeanor
convictions in the new subsections (b)(2)(E) and (b)(3)(E) in view of a congressional
directive requiring inclusion of an enhancement for certain types of misdemeanor
offenses. See Illegal Immigration and Immigrant Responsibility Act of 1996, Pub. L.
104–208, § 344, 110 Stat. 3009.
The amendment also addresses another frequent criticism of the existing guideline – that
its use of a single predicate conviction sustained by a defendant before being deported or
removed from the United States to impose an enhancement of up to 16 levels is often
disproportionate to a defendant’s culpability or recidivism risk. The Commission’s data
shows an unusually high rate of downward variances and departures from the guideline
for such defendants. For example, the Commission’s report found that less than one-third
of defendants who qualify for a 16-level enhancement have received a within-range
sentence, while 92.7 percent of defendants who currently qualify for no enhancement
receive a within-range sentence. Illegal Reentry Report, at 11.
The lengths of the terms of imprisonment triggering each level of enhancement were set
based on Commission data showing differing median sentence lengths for a variety of
predicate offense categories. For example, the Commission’s data indicated that
sentences for more serious predicate offenses, such as drug-trafficking and felony assault,
exceeded the two- and five-year benchmarks far more frequently than did sentences for
less serious felony offenses, such as drug possession and theft. With respect to drug-
trafficking offenses, the Commission found that 34.6 percent of such offenses received
sentences of between two and five years, and 17.0 percent of such offenses received
sentences of five years or more. With respect to felony assault offenses, the Commission
found that 42.1 percent of such offenses received sentences of between two and five
31
years, and 9.0 percent of such offenses received sentences of five years or more. With
respect to felony drug possession offenses, 67.7 percent of such offenses received
sentences of 13 months or less, while only 21.3 percent received sentences between two
years and five years and only 3.0 percent received sentences of five years or more. With
respect to felony theft offenses, 57.1 percent of such offenses received sentences of 13
months or less, while only 17.4 percent received sentences between two years and five
years and only 2.0 percent received sentences of five years or more.
The Commission considered public comment suggesting that the term of imprisonment a
defendant actually served for a prior conviction was a superior means of assessing the
seriousness of the prior offense. The Commission determined that such an approach
would be administratively impractical due to difficulties in obtaining accurate
documentation. The Commission determined that a sentence-imposed approach is
consistent with the Chapter Four criminal history rules, easily applied, and appropriately
calibrated to account for the seriousness of prior offenses.
Departure Provision
The amendment adds a new departure provision, at Application Note 5, applicable to
situations where “an enhancement in subsection (b)(2) or (b)(3) substantially understates
or overstates the seriousness of the conduct underlying the prior offense.” This departure
accounts for three situations in which an enhancement based on the length of a prior
imposed sentence appears either inadequate or excessive in light of the defendant’s
underlying conduct. For example, if a prior serious conviction (e.g., murder) is not
accounted for because it is not within the time limits set forth in §4A1.2(e) and did not
receive criminal history points, an upward departure may be warranted. Conversely, if
the time actually served by the defendant for the prior offense was substantially less than
the length of the original sentence imposed, a downward departure may be warranted.
Excluding Stale Convictions
For all three specific offense characteristics, the amendment considers prior convictions
only if the convictions receive criminal history points under the rules in Chapter Four.
Counting only convictions that receive criminal history points addresses concerns that the
existing guideline sometimes has provided for an unduly severe enhancement based on a
single offense so old it did not receive criminal history points. The Commission’s
research has found that a defendant’s criminal history score is a strong indicator of
recidivism risk, and it is therefore appropriate to employ the criminal history rules in this
context. See U.S. Sent. Comm’n, Recidivism Among Federal Offenders: A
Comprehensive Overview (2016). The limitation to offenses receiving criminal history
points also promotes ease of application and uniformity throughout the guidelines. See
28 U.S.C. § 994(c)(2) (directing the Commission to establish categories of offenses based
on appropriate mitigating and aggravating factors); cf. USSG §2K2.1, comment. (n.10)
(imposing enhancements based on a defendant’s predicate convictions only if they
received criminal history points).
32
Application of the “Single Sentence Rule”
The amendment also contains an application note addressing the situation when a
defendant was simultaneously sentenced for an illegal reentry offense and another federal
felony offense. It clarifies that, in such a case, the illegal reentry offense counts towards
subsection (b)(1), while the other felony offense counts towards subsection (b)(3).
Because the amendment is intended to make a distinction between illegal reentry offenses
and other types of offenses, the Commission concluded that it was appropriate to ensure
that such convictions are separately accounted for under the applicable specific offense
characteristics, even if they might otherwise constitute a “single sentence” under
§4A1.2(a)(2). For example, if the single sentence rule applied, a defendant who was
sentenced simultaneously for an illegal reentry and a federal felony drug-trafficking
offense might receive an enhancement of only 4 levels under subsection (b)(1), even
though, if the two sentences had been imposed separately, the drug offense would result
in an additional enhancement of between 4 and 10 levels under subsection (b)(3).
Definition of “Crime of Violence”
The amendment continues to use the term “crime of violence,” although now solely in
reference to the 2-level enhancement for three or more misdemeanor convictions at
subsections (b)(2)(E) and (b)(3)(E). The amendment conforms the definition of “crime
of violence” in Application Note 2 to that adopted for use in the career offender guideline
effective August 1, 2016. See Notice of Submission to Congress of Amendment to the
Sentencing Guidelines Effective August 1, 2016, 81 FR 4741 (Jan. 27, 2016).
Uniformity and ease of application weigh in favor of using a consistent definition for the
same term throughout the Guidelines Manual.
Effective Date: The effective date of this amendment is November 1, 2016.
5. Amendment: Section 5B1.3 is amended in the heading by striking “Conditions—” and
insertingConditions”;
in subsections (a)(1) through (a)(8) by striking the initial letter of the first word in each
subsection and inserting the appropriate capital letter for the word, and by striking the
semicolon at the end of each subsection and inserting a period;
in subsection (a)(6), as so amended, by inserting before the period at the end the
following: “. If there is a court-established payment schedule for making restitution or
paying the assessment (see 18 U.S.C. § 3572(d)), the defendant shall adhere to the
schedule”;
by striking subsection (a)(9) as follows:
33
(9) (A) in a state in which the requirements of the Sex Offender Registration and
Notification Act (see 42 U.S.C. §§ 16911 and 16913) do not apply, a
defendant convicted of a sexual offense as described in 18 U.S.C.
§ 4042(c)(4) (Pub. L. 105–119, § 115(a)(8), Nov. 26, 1997) shall report
the address where the defendant will reside and any subsequent change of
residence to the probation officer responsible for supervision, and shall
register as a sex offender in any State where the person resides, is
employed, carries on a vocation, or is a student; or
(B) in a state in which the requirements of Sex Offender Registration and
Notification Act apply, a sex offender shall (i) register, and keep such
registration current, where the offender resides, where the offender is an
employee, and where the offender is a student, and for the initial
registration, a sex offender also shall register in the jurisdiction in which
convicted if such jurisdiction is different from the jurisdiction of
residence; (ii) provide information required by 42 U.S.C. § 16914; and
(iii) keep such registration current for the full registration period as set
forth in 42 U.S.C. § 16915;”,
and inserting the following:
(9) If the defendant is required to register under the Sex Offender Registration and
Notification Act, the defendant shall comply with the requirements of that Act
(see 18 U.S.C. § 3563(a)).”;
and in subsection (a)(10) by striking “the defendant” and inserting “The defendant”;
in subsection (b) by striking “The court” and inserting the following:
“Discretionary Conditions
The court”;
in subsection (c) by striking “(Policy Statement) The” and inserting the following:
Standard’ Conditions (Policy Statement)
The”;
and by striking paragraphs (1) through (14) as follows:
(1) the defendant shall not leave the judicial district or other specified geographic
area without the permission of the court or probation officer;
34
(2) the defendant shall report to the probation officer as directed by the court or
probation officer and shall submit a truthful and complete written report within
the first five days of each month;
(3) the defendant shall answer truthfully all inquiries by the probation officer and
follow the instructions of the probation officer;
(4) the defendant shall support the defendant’s dependents and meet other family
responsibilities (including, but not limited to, complying with the terms of any
court order or administrative process pursuant to the law of a state, the District of
Columbia, or any other possession or territory of the United States requiring
payments by the defendant for the support and maintenance of any child or of a
child and the parent with whom the child is living);
(5) the defendant shall work regularly at a lawful occupation unless excused by the
probation officer for schooling, training, or other acceptable reasons;
(6) the defendant shall notify the probation officer at least ten days prior to any
change of residence or employment;
(7) the defendant shall refrain from excessive use of alcohol and shall not purchase,
possess, use, distribute, or administer any controlled substance, or any
paraphernalia related to any controlled substance, except as prescribed by a
physician;
(8) the defendant shall not frequent places where controlled substances are illegally
sold, used, distributed, or administered, or other places specified by the court;
(9) the defendant shall not associate with any persons engaged in criminal activity,
and shall not associate with any person convicted of a felony unless granted
permission to do so by the probation officer;
(10) the defendant shall permit a probation officer to visit the defendant at any time at
home or elsewhere and shall permit confiscation of any contraband observed in
plain view by the probation officer;
(11) the defendant shall notify the probation officer within seventy-two hours of being
arrested or questioned by a law enforcement officer;
(12) the defendant shall not enter into any agreement to act as an informer or a special
agent of a law enforcement agency without the permission of the court;
(13) as directed by the probation officer, the defendant shall notify third parties of risks
that may be occasioned by the defendant’s criminal record or personal history or
characteristics, and shall permit the probation officer to make such notifications
and to confirm the defendant’s compliance with such notification requirement;
35
(14) the defendant shall pay the special assessment imposed or adhere to a court-
ordered installment schedule for the payment of the special assessment.”,
and inserting the following:
(1) The defendant shall report to the probation office in the federal judicial district
where he or she is authorized to reside within 72 hours of the time the defendant
was sentenced, unless the probation officer instructs the defendant to report to a
different probation office or within a different time frame.
(2) After initially reporting to the probation office, the defendant will receive
instructions from the court or the probation officer about how and when to report
to the probation officer, and the defendant shall report to the probation officer as
instructed.
(3) The defendant shall not knowingly leave the federal judicial district where he or
she is authorized to reside without first getting permission from the court or the
probation officer.
(4) The defendant shall answer truthfully the questions asked by the probation officer.
(5) The defendant shall live at a place approved by the probation officer. If the
defendant plans to change where he or she lives or anything about his or her
living arrangements (such as the people the defendant lives with), the defendant
shall notify the probation officer at least 10 days before the change. If notifying
the probation officer at least 10 days in advance is not possible due to
unanticipated circumstances, the defendant shall notify the probation officer
within 72 hours of becoming aware of a change or expected change.
(6) The defendant shall allow the probation officer to visit the defendant at any time
at his or her home or elsewhere, and the defendant shall permit the probation
officer to take any items prohibited by the conditions of the defendant’s
supervision that he or she observes in plain view.
(7) The defendant shall work full time (at least 30 hours per week) at a lawful type of
employment, unless the probation officer excuses the defendant from doing so. If
the defendant does not have full-time employment he or she shall try to find full-
time employment, unless the probation officer excuses the defendant from doing
so. If the defendant plans to change where the defendant works or anything about
his or her work (such as the position or the job responsibilities), the defendant
shall notify the probation officer at least 10 days before the change. If notifying
the probation officer at least 10 days in advance is not possible due to
unanticipated circumstances, the defendant shall notify the probation officer
within 72 hours of becoming aware of a change or expected change.
36
(8) The defendant shall not communicate or interact with someone the defendant
knows is engaged in criminal activity. If the defendant knows someone has been
convicted of a felony, the defendant shall not knowingly communicate or interact
with that person without first getting the permission of the probation officer.
(9) If the defendant is arrested or questioned by a law enforcement officer, the
defendant shall notify the probation officer within 72 hours.
(10) The defendant shall not own, possess, or have access to a firearm, ammunition,
destructive device, or dangerous weapon (i.e., anything that was designed, or was
modified for, the specific purpose of causing bodily injury or death to another
person, such as nunchakus or tasers).
(11) The defendant shall not act or make any agreement with a law enforcement
agency to act as a confidential human source or informant without first getting the
permission of the court.
(12) If the probation officer determines that the defendant poses a risk to another
person (including an organization), the probation officer may require the
defendant to notify the person about the risk and the defendant shall comply with
that instruction. The probation officer may contact the person and confirm that
the defendant has notified the person about the risk.
(13) The defendant shall follow the instructions of the probation officer related to the
conditions of supervision.”;
and in subsection (d) by striking “(Policy Statement) The” and inserting the following:
“ ‘Special’ Conditions (Policy Statement)
The”;
by striking paragraph (1) as follows:
(1) Possession of Weapons
If the instant conviction is for a felony, or if the defendant was previously
convicted of a felony or used a firearm or other dangerous weapon in the course
of the instant offense — a condition prohibiting the defendant from possessing a
firearm or other dangerous weapon.”,
and inserting the following:
(1) Support of Dependents
37
(A) If the defendant has one or more dependents — a condition specifying that
the defendant shall support his or her dependents.
(B) If the defendant is ordered by the government to make child support
payments or to make payments to support a person caring for a child — a
condition specifying that the defendant shall make the payments and
comply with the other terms of the order.”;
and in paragraph (4) by striking “Program Participation” in the heading; by inserting
“(A)” before “a condition requiring”; and by inserting before the period at the end the
following: “; and (B) a condition specifying that the defendant shall not use or possess
alcohol”.
The Commentary to §5B1.3 captioned “Application Note” is amended by striking Note 1
as follows:
“1. Application of Subsection (a)(9)(A) and (B).—Some jurisdictions continue to
register sex offenders pursuant to the sex offender registry in place prior to
July 27, 2006, the date of enactment of the Adam Walsh Act, which contained the
Sex Offender Registration and Notification Act. In such a jurisdiction, subsection
(a)(9)(A) will apply. In a jurisdiction that has implemented the requirements of
the Sex Offender Registration and Notification Act, subsection (a)(9)(B) will
apply. (See 42 U.S.C. §§ 16911 and 16913.)”,
and inserting the following:
“1. Application of Subsection (c)(4).—Although the condition in subsection (c)(4)
requires the defendant to ‘answer truthfully’ the questions asked by the probation
officer, a defendant’s legitimate invocation of the Fifth Amendment privilege
against self-incrimination in response to a probation officer’s question shall not be
considered a violation of this condition.”.
Section 5D1.3 is amended is amended in the heading by striking “Conditions—” and
insertingConditions”;
in subsections (a)(1) through (a)(6) by striking the initial letter of the first word in each
subsection and inserting the appropriate capital letter for the word, and by striking the
semicolon at the end of each subsection and inserting a period;
in subsection (a)(6), as so amended, by inserting before the period at the end the
following: “. If there is a court-established payment schedule for making restitution or
paying the assessment (see 18 U.S.C. § 3572(d)), the defendant shall adhere to the
schedule”;
by striking subsection (a)(7) as follows:
38
(7) (A) in a state in which the requirements of the Sex Offender Registration and
Notification Act (see 42 U.S.C. §§ 16911 and 16913) do not apply, a
defendant convicted of a sexual offense as described in 18 U.S.C.
§ 4042(c)(4) (Pub. L. 105–119, § 115(a)(8), Nov. 26, 1997) shall report
the address where the defendant will reside and any subsequent change of
residence to the probation officer responsible for supervision, and shall
register as a sex offender in any State where the person resides, is
employed, carries on a vocation, or is a student; or
(B) in a state in which the requirements of Sex Offender Registration and
Notification Act apply, a sex offender shall (i) register, and keep such
registration current, where the offender resides, where the offender is an
employee, and where the offender is a student, and for the initial
registration, a sex offender also shall register in the jurisdiction in which
convicted if such jurisdiction is different from the jurisdiction of
residence; (ii) provide information required by 42 U.S.C. § 16914; and
(iii) keep such registration current for the full registration period as set
forth in 42 U.S.C. § 16915;”,
and inserting the following:
“(7) If the defendant is required to register under the Sex Offender Registration and
Notification Act, the defendant shall comply with the requirements of that Act
(see 18 U.S.C. § 3583(d)).”;
and in subsection (a)(8) by striking “the defendant” and inserting “The defendant”;
in subsection (b) by striking “The court” and inserting the following:
“Discretionary Conditions
The court”;
in subsection (c) by striking “(Policy Statement) The” and inserting the following:
Standard’ Conditions (Policy Statement)
The”;
and by striking paragraphs (1) through (15) as follows:
(1) the defendant shall not leave the judicial district or other specified geographic
area without the permission of the court or probation officer;
39
(2) the defendant shall report to the probation officer as directed by the court or
probation officer and shall submit a truthful and complete written report within
the first five days of each month;
(3) the defendant shall answer truthfully all inquiries by the probation officer and
follow the instructions of the probation officer;
(4) the defendant shall support the defendant’s dependents and meet other family
responsibilities (including, but not limited to, complying with the terms of any
court order or administrative process pursuant to the law of a state, the District of
Columbia, or any other possession or territory of the United States requiring
payments by the defendant for the support and maintenance of any child or of a
child and the parent with whom the child is living);
(5) the defendant shall work regularly at a lawful occupation unless excused by the
probation officer for schooling, training, or other acceptable reasons;
(6) the defendant shall notify the probation officer at least ten days prior to any
change of residence or employment;
(7) the defendant shall refrain from excessive use of alcohol and shall not purchase,
possess, use, distribute, or administer any controlled substance, or any
paraphernalia related to any controlled substance, except as prescribed by a
physician;
(8) the defendant shall not frequent places where controlled substances are illegally
sold, used, distributed, or administered, or other places specified by the court;
(9) the defendant shall not associate with any persons engaged in criminal activity,
and shall not associate with any person convicted of a felony unless granted
permission to do so by the probation officer;
(10) the defendant shall permit a probation officer to visit the defendant at any time at
home or elsewhere and shall permit confiscation of any contraband observed in
plain view by the probation officer;
(11) the defendant shall notify the probation officer within seventy-two hours of being
arrested or questioned by a law enforcement officer;
(12) the defendant shall not enter into any agreement to act as an informer or a special
agent of a law enforcement agency without the permission of the court;
(13) as directed by the probation officer, the defendant shall notify third parties of risks
that may be occasioned by the defendant’s criminal record or personal history or
characteristics, and shall permit the probation officer to make such notifications
and to confirm the defendant’s compliance with such notification requirement;
40
(14) the defendant shall pay the special assessment imposed or adhere to a court-
ordered installment schedule for the payment of the special assessment;
(15) the defendant shall notify the probation officer of any material change in the
defendant’s economic circumstances that might affect the defendant’s ability to
pay any unpaid amount of restitution, fines, or special assessments.”,
and inserting the following:
“(1) The defendant shall report to the probation office in the federal judicial district
where he or she is authorized to reside within 72 hours of release from
imprisonment, unless the probation officer instructs the defendant to report to a
different probation office or within a different time frame.
(2) After initially reporting to the probation office, the defendant will receive
instructions from the court or the probation officer about how and when to report
to the probation officer, and the defendant shall report to the probation officer as
instructed.
(3) The defendant shall not knowingly leave the federal judicial district where he or
she is authorized to reside without first getting permission from the court or the
probation officer.
(4) The defendant shall answer truthfully the questions asked by the probation officer.
(5) The defendant shall live at a place approved by the probation officer. If the
defendant plans to change where he or she lives or anything about his or her
living arrangements (such as the people the defendant lives with), the defendant
shall notify the probation officer at least 10 days before the change. If notifying
the probation officer at least 10 days in advance is not possible due to
unanticipated circumstances, the defendant shall notify the probation officer
within 72 hours of becoming aware of a change or expected change.
(6) The defendant shall allow the probation officer to visit the defendant at any time
at his or her home or elsewhere, and the defendant shall permit the probation
officer to take any items prohibited by the conditions of the defendant’s
supervision that he or she observes in plain view.
(7) The defendant shall work full time (at least 30 hours per week) at a lawful type of
employment, unless the probation officer excuses the defendant from doing so. If
the defendant does not have full-time employment he or she shall try to find full-
time employment, unless the probation officer excuses the defendant from doing
so. If the defendant plans to change where the defendant works or anything about
his or her work (such as the position or the job responsibilities), the defendant
shall notify the probation officer at least 10 days before the change. If notifying
41
the probation officer in advance is not possible due to unanticipated
circumstances, the defendant shall notify the probation officer within 72 hours of
becoming aware of a change or expected change.
(8) The defendant shall not communicate or interact with someone the defendant
knows is engaged in criminal activity. If the defendant knows someone has been
convicted of a felony, the defendant shall not knowingly communicate or interact
with that person without first getting the permission of the probation officer.
(9) If the defendant is arrested or questioned by a law enforcement officer, the
defendant shall notify the probation officer within 72 hours.
(10) The defendant shall not own, possess, or have access to a firearm, ammunition,
destructive device, or dangerous weapon (i.e., anything that was designed, or was
modified for, the specific purpose of causing bodily injury or death to another
person, such as nunchakus or tasers).
(11) The defendant shall not act or make any agreement with a law enforcement
agency to act as a confidential human source or informant without first getting the
permission of the court.
(12) If the probation officer determines that the defendant poses a risk to another
person (including an organization), the probation officer may require the
defendant to notify the person about the risk and the defendant shall comply with
that instruction. The probation officer may contact the person and confirm that
the defendant has notified the person about the risk.
(13) The defendant shall follow the instructions of the probation officer related to the
conditions of supervision.”;
and in subsection (d) by striking “(Policy Statement) The” and inserting the following:
Special’ Conditions (Policy Statement)
The”;
by striking paragraph (1) as follows:
(1) Possession of Weapons
If the instant conviction is for a felony, or if the defendant was previously
convicted of a felony or used a firearm or other dangerous weapon in the course
of the instant offense — a condition prohibiting the defendant from possessing a
firearm or other dangerous weapon.”,
and inserting the following:
42
(1) Support of Dependents
(A) If the defendant has one or more dependents — a condition specifying that
the defendant shall support his or her dependents.
(B) If the defendant is ordered by the government to make child support
payments or to make payments to support a person caring for a child — a
condition specifying that the defendant shall make the payments and
comply with the other terms of the order.”;
in paragraph (4) by striking “Program Participation” in the heading; by inserting “(A)”
before “a condition requiring”; and by inserting before the period at the end the
following: “; and (B) a condition specifying that the defendant shall not use or possess
alcohol”;
and by inserting at the end the following new paragraph (8):
(8) Unpaid Restitution, Fines, or Special Assessments
If the defendant has any unpaid amount of restitution, fines, or special
assessments, the defendant shall notify the probation officer of any material
change in the defendant’s economic circumstances that might affect the
defendant’s ability to pay.”.
The Commentary to §5D1.3 captioned “Application Note” is amended by striking Note 1
as follows:
“1. Application of Subsection (a)(7)(A) and (B).—Some jurisdictions continue to
register sex offenders pursuant to the sex offender registry in place prior to July
27, 2006, the date of enactment of the Adam Walsh Act, which contained the Sex
Offender Registration and Notification Act. In such a jurisdiction, subsection
(a)(7)(A) will apply. In a jurisdiction that has implemented the requirements of
the Sex Offender Registration and Notification Act, subsection (a)(7)(B) will
apply. (See 42 U.S.C. §§ 16911 and 16913.)”,
and inserting the following:
“1. Application of Subsection (c)(4).—Although the condition in subsection (c)(4)
requires the defendant to ‘answer truthfully’ the questions asked by the probation
officer, a defendant’s legitimate invocation of the Fifth Amendment privilege
against self-incrimination in response to a probation officer’s question shall not be
considered a violation of this condition.”.
Reason for Amendment: This amendment is a result of the Commission’s multi-year
review of sentencing practices relating to federal probation and supervised release. The
43
amendment makes several changes to the guidelines and policy statements related to
conditions of probation, §5B1.3 (Conditions of Probation), and supervised release,
§5D1.3 (Conditions of Supervised Release).
When imposing a sentence of probation or a sentence of imprisonment that includes a
period of supervised release, the court is required to impose certain conditions of
supervision listed by statute. 18 U.S.C. §§ 3563(a) and 3583(d). Congress has also
empowered courts to impose additional conditions of probation and supervised release
that are reasonably related to statutory sentencing factors contained in 18 U.S.C. §
3553(a), so long as those conditions “involve only such deprivations of liberty or
property as are reasonably necessary for the purposes indicated in 3553(a)(2).” 18 U.S.C.
§ 3563(b); see also 18 U.S.C. § 3583(d). Additional conditions of supervised release
must also be consistent with any pertinent policy statements issued by the Commission.
See 18 U.S.C. § 3583(d)(3).
The Commission is directed by its organic statute to promulgate policy statements on the
appropriate use of the conditions of probation and supervised release, see 28 U.S.C.
§ 994(a)(2)(B), and has implemented this directive in §§5B1.3 and 5D1.3. The
provisions follow a parallel structure, first setting forth those conditions of supervision
that are required by statute in their respective subsections (a) and (b), and then providing
guidance on discretionary conditions, which are categorized as “standard” conditions,
“special” conditions, and “additional” special conditions, in subsections (c), (d), and (e),
respectively.
In a number of cases, defendants have raised objections (with varied degrees of success)
to the conditions of supervised release and probation imposed upon them at the time of
sentencing. See, e.g., United States v. Munoz, 812 F.3d 809 (10th Cir. 2016); United
States v. Kappes, 782 F.3d 828, 848 (7th Cir. 2015); United States v. Siegel, 753 F.3d 705
(7th Cir. 2014); United States v. Bahr, 730 F.3d 963 (9th Cir. 2013); United States v.
Maloney, 513 F.3d 350, 357–59 (3d Cir. 2008); United States v. Saechao, 418 F.3d 1073,
1081 (9th Cir. 2005). Challenges have been made on the basis that certain conditions are
vaguely worded, pose constitutional concerns, or have been categorized as “standard
conditions in a manner that has led to their improper imposition upon particular
offenders.
The amendment responds to many of the concerns raised in these challenges by revising,
clarifying, and rearranging the conditions contained in §§5B1.3 and 5D1.3 in order to
make them easier for defendants to understand and probation officers to enforce. Many
of the challenged conditions are those laid out in the Judgment in a Criminal Case Form,
AO245B, which are nearly identical to the conditions in §§5B1.3 and 5D1.3.
The amendment was supported by the Criminal Law Committee (CLC) of the Judicial
Conference of the United States. The CLC has long taken an active and ongoing role in
developing, monitoring and recommending revisions to the condition of supervision,
which represent the core supervision practices required by the federal supervision model.
The changes in the amendment are consistent with proposed changes to the national
44
judgment form recently endorsed by the CLC and Administrative Office of the U.S.
Courts, after an exhaustive review of those conditions aided by probation officers from
throughout the country.
As part of this broader revision, the conditions in §§5B1.3 and 5D1.3 have been
renumbered. Where the specific conditions discussed below are identified by a
guidelines provision reference, that numeration is in reference to their pre-amendment
order.
Court-Established Payment Schedules
First, the amendment amends §§5B1.3(a)(6) and 5D1.3(a)(6) to set forth as a
“mandatory” condition that if there is a court-established payment schedule for making
restitution or paying a special assessment, the defendant shall adhere to the schedule.
Previously, those conditions were classified as “standard.” As a conforming change,
similar language at §§5B1.3(c)(14) and 5D1.3(c)(14) is deleted. This change is made to
more closely adhere to the requirements of 18 U.S.C. § 3572(d).
Sex Offender Registration and Notification Act
Second, the amendment amends §§5B1.3(a)(9) and 5D1.3(a)(7) to clarify that, if the
defendant is required to register under the Sex Offender Registration and Notification Act
(SORNA), the defendant shall comply with the requirements of the SORNA. Language
in the guideline provisions and the accompanying commentary indicating that the Act
applies in some states and not in others is correspondingly deleted. After receiving
testimony from the Department of Justice suggesting the current condition could be
misread, the Commission determined that the condition’s language should be simplified
and updated to unambiguously reflect that federal sex offender registration requirements
apply in all states.
Reporting to the Probation Officer
Third, the amendment divides the initial and regular reporting requirements,
§§5B1.3(a)(2) and 5D1.3(a)(2), into two more definite provisions. The amendment also
amends the conditions to require that the defendant report to the probation office in the
jurisdiction where he or she is authorized to reside, within 72 hours of release unless
otherwise directed, and that the defendant must thereafter report to the probation officer
as instructed by the court or the probation officer.
Leaving the Jurisdiction
Fourth, the amendment revises §§5B1.3(c)(1) and 5D1.3(c)(1), which prohibit defendants
from leaving the judicial district without permission, for clarity and to insert a mental
state (mens rea) requirement that a defendant must not leave the district “knowingly.
Testimony received by the Commission has observed that a rule prohibiting a defendant
from leaving the district without permission of the court or probation officer may be
45
unfairly applied to a defendant who unknowingly moves between districts. The
Commission concluded that this change appropriately responds to that concern.
Answering Truthfully; Following Instructions
Fifth, the amendment divides §§5B1.3(c)(3) and 5D1.3(c)(3) into separate conditions
which individually require the defendant to “answer truthfully” the questions of the
probation officer and to follow the instructions of the probation officer “related to the
conditions of supervision.”
The amendment also adds commentary to clarify that a defendant’s legitimate invocation
of the Fifth Amendment privilege against self-incrimination in response to a probation
officer’s question shall not be considered a violation of the “answer truthfully” condition.
The Commission determined that this approach adequately addresses Fifth Amendment
concerns raised by some courts, see, e.g., United States v. Kappes, 782 F.3d 828, 848 (7th
Cir. 2015) and United States v. Saechao, 418 F.3d 1073, 1081 (9th Cir. 2005), while
preserving the probation officer’s ability to adequately supervise the defendant.
Residence and Employment
Sixth, the amendment clarifies the standard conditions relating to a defendant’s residence,
§§5B1.3(c)(6) and 5D1.3(c)(6), and the requirement that the defendant work full time,
§§5B1.3(c)(5) and 5D1.3(c)(5). The revised conditions spell out in plain language that
the defendant must live at a place “approved by the probation officer,” and that the
defendant must work full time (at least 30 hours per week) at a lawful type of
employment — or seek to do so — unless excused by the probation officer. The
defendant must also notify the probation officer of changes in residence or employment
at least 10 days in advance of the change or, if this is not possible, within 72 hours of
becoming aware of a change. The Commission determined that these changes are
appropriate to ensure that defendants are made aware of what will be required of them
while under supervision. These requirements and associated benchmarks (e.g., 30 hours
per week) are supported by testimony from the CLC as appropriate to meet supervision
needs.
Visits by Probation Officer
Seventh, the amendment amends the conditions requiring the defendant to permit the
probation officer to visit the defendant at any time, at home or elsewhere, and to permit
the probation officer to confiscate items prohibited by the defendant’s terms of release,
§§5B1.3(c)(10) and 5D1.3(c)(10). The revision provides plain language notice to
defendants and guidance to probation officers.
The Seventh Circuit has criticized this condition as intrusive and not necessarily
connected to the offense of conviction, see United States v. Kappes, 782 F.3d 828, 850–
51 (7th Cir. 2015) and United States v. Thompson, 777 F.3d 368, 379–80 (7th Cir. 2015),
but the Commission has determined that, in some circumstance, adequate supervision of
46
defendants may require probation officers to have the flexibility to visit defendants at off-
hours, at their workplaces, and without advance notice to the supervisee. For example,
some supervisees work overnight shifts and, in order to verify that they are in compliance
with the condition of supervision requiring employment, a probation officer might have
to visit them at their workplace very late in the evening.
Association with Criminals
Eighth, the amendment revises and clarifies the conditions mandating that the defendant
not associate with persons engaged in criminal activity or persons convicted of a felony
unless granted permission to do so by the probation officer, §§5B1.3(c)(9) and
5D1.3(c)(9). As amended, the condition requires that the defendant must not
“communicate or interact with” any person whom the defendant “knows” to be engaged
in “criminal activity” and prohibits the defendant from communicating or interacting with
those whom the defendant “knows” to have been “convicted of a felony” without
advance permission of the probation officer.
These revisions address concerns expressed by the Seventh Circuit that the condition is
vague and lacks a mens rea requirement. See United States v. Kappes, 782 F.3d 828,
848–49 (7th Cir. 2015); see also United States v. King, 608 F.3d 1122, 1128 (9th Cir.
2010) (upholding the condition by interpreting it to have an implicit mens rea
requirement). The revision adds an express mental state requirement and replaces the
term “associate” with more definite language.
Arrested or Questioned by a Law Enforcement Officer
Ninth, the amendment makes clerical changes to the “standard” conditions requiring that
the defendant notify the probation officer after being arrested or questioned by a law
enforcement officer. See §§5B1.3(11) and 5D1.3(11).
Firearms and Dangerous Weapons
Tenth, the amendment reclassifies the “special” conditions which require that the
defendant not possess a firearm or other dangerous weapon, §§5B1.3(d)(1) and
5D1.3(d)(1), as “standard” conditions and clarifies those conditions. As amended, the
defendant must not “own, possess, or have access to” a firearm, ammunition, destructive
device, or dangerous weapon. After reviewing the testimony from the CLC and others,
the Commission determined that reclassifying this condition as a “standard” condition
will promote public safety and reduce safety risks to probation officers. The amendment
also defines “dangerous weapon” as “anything that was designed, or was modified for,
the specific purpose of causing bodily injury or death to another person, such as
nunchakus or tasers.”
47
Acting as an Informant
Eleventh, the amendment rewords the “standard” condition at §§5B1.3(c)(12) and
5D1.3(c)(12) requiring that the defendant not enter into an agreement to act as an
informant without permission of the court. The condition is revised to improve clarity.
Duty to Notify of Risks Posed by the Defendant
Twelfth, the amendment revises the conditions requiring the defendant, at the direction of
the probation officer, to notify others of risks the defendant may pose based on his or her
personal history or characteristics, §§5B1.3(c)(13) and 5D1.3(c)(13). As amended, the
condition provides that, if the probation officer determines that the defendant poses a risk
to another person, the probation officer may require the defendant to tell the person about
the risk and permits the probation officer to confirm that the defendant has done so. The
Commission determined that this revision is appropriate to address criticism by the
Seventh Circuit regarding potential ambiguity in how the condition is currently phrased.
See United States v. Thompson, 777 F.3d 368, 379 (7th Cir. 2015).
Support of Dependents
Thirteenth, the amendment clarifies and moves the dependent support requirement from
the list of “standard” conditions, §§5B1.3(c)(4) and 5D1.3(c)(4), to the list of “special”
conditions in subsection (d). As amended, the conditions require that, if the defendant
has dependents, he or she must support those dependents; and if the defendant is ordered
to make child support payments, he or she must make the payments and comply with the
other terms of the order.
These changes address concerns expressed by the Seventh Circuit that the current
condition — which requires a defendant to “support his or her dependents and meet other
family responsibilities” — is vague and does apply to defendants who have no
dependents. See United States v. Kappes, 782 F.3d 828, 849 (7th Cir. 2015) and United
States v. Thompson, 777 F.3d 368, 379–80 (7th Cir. 2015). The amendment uses plainer
language to provide better notice to the defendant about what is required. The
Commission determined that this condition need not apply to all defendants but only to
those with dependents.
Alcohol; Controlled Substances; Frequenting Places Where Controlled
Substances are Sold
Fourteenth, the standard conditions requiring that the defendant refrain from excessive
use of alcohol, not possess or distribute controlled substances or paraphernalia, and not
frequent places where controlled substances are illegally sold, §§5B1.3(c)(7)–(8) and
5D1.3(c)(7)–(8), have been deleted. The Commission determined that these conditions
are either best dealt with as special conditions or are redundant with other conditions.
Specifically, to account for the supervision needs of defendants with alcohol abuse
problems, a new special condition that the defendant “must not use or possess alcohol”
48
has been added. The requirement that the defendant abstain from the illegal use of
controlled substances is covered by the “mandatory” conditions prohibiting commission
of additional crimes and requiring substance abuse testing. Finally, the prohibition on
frequenting places where controlled substances are illegally sold is encompassed by the
“standard” condition that defendants not associate with those they know to be criminals
or who are engaged in criminal activity.
Material Change in Economic Circumstances (§5D1.3 Only)
Finally, with respect to supervised release only, the “standard” condition requiring that
the defendant notify the probation officer of any material change in the defendant’s
economic circumstances that might affect the defendant’s ability to pay any unpaid
amount of restitution, fines, or special assessments, §5D1.3(c)(15), is reclassified as a
“special” condition in subsection (d). Testimony from the CLC and others indicated that
defendants on supervised release often have no outstanding restitution, fines, or special
assessments remaining at the time of their release, rendering the condition superfluous in
those cases. No change has been made to the parallel “mandatory” condition of
probation at §5B1.3(a)(7).
Effective Date: The effective date of this amendment is November 1, 2016.
6. Amendment: Section 2K2.1 is amended in subsection (a)(8) by inserting “, or 18 U.S.C.
§ 1715” before the period at the end.
The Commentary to §2K2.1 captioned “Statutory Provisions” is amended by inserting
after “(k)-(o),” the following: “1715,”.
The Commentary to §2M6.1 captioned “Application Notes” is amended in Note 1 by
striking “831(f)(2)” and inserting “831(g)(2)”, and by striking “831(f)(1)” and inserting
“831(g)(1)”.
The Commentary to §2T1.6 captioned “Background” is amended by striking “The
offense is a felony that is infrequently prosecuted.”.
Chapter Two, Part T, Subpart 2, is amended in the Introductory Commentary by striking
“Because these offenses are no longer a major enforcement priority, no effort” and
inserting “No effort”.
Section 2T2.1 is amended by striking the Commentary captioned “Background” as
follows:
“Background: The most frequently prosecuted conduct violating this section is operating
an illegal still. 26 U.S.C. § 5601(a)(1).”.
49
Section 2T2.2 is amended by striking the Commentary captioned “Background” as
follows:
“Background: Prosecutions of this type are infrequent.”.
Appendix A (Statutory Index) is amended by inserting after the line referenced to 18
U.S.C. § 1712 the following:
“18 U.S.C. § 1715 2K2.1”;
by inserting after the line referenced to 18 U.S.C. § 2280 the following:
“18 U.S.C. § 2280a 2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2, 2A2.3, 2A6.1,
2B1.1, 2B3.2, 2K1.3, 2K1.4, 2M5.2, 2M5.3, 2M6.1, 2Q1.1,
2Q1.2, 2X1.1, 2X2.1, 2X3.1”;
by inserting after the line referenced to 18 U.S.C. § 2281 the following:
“18 U.S.C. § 2281a 2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2, 2A2.3, 2A6.1,
2B1.1, 2B3.2, 2K1.4, 2M6.1, 2Q1.1, 2Q1.2, 2X1.1”;
and by inserting after the line referenced to 18 U.S.C. § 2332h the following:
“18 U.S.C. § 2332i 2A6.1, 2K1.4, 2M2.1, 2M2.3, 2M6.1”.
Reason for Amendment: This amendment responds to recently enacted legislation and
miscellaneous guideline application issues.
USA FREEDOM Act
The Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective
Discipline Over Monitoring Act (“USA FREEDOM Act”) of 2015, Pub. L. 114–23 (June
2, 2015), set forth changes to statutes related to maritime navigation and nuclear
terrorism and provided new and expanded criminal offenses to implement the United
States’ obligations under certain provisions of four international conventions. The USA
FREEDOM Act also specified that the new crimes constitute “federal crimes of
terrorism.” See 18 U.S.C. § 2332b(g)(5). The amendment responds to the USA
FREEDOM Act by referencing the new offenses in Appendix A (Statutory Index) to
various Chapter Two guidelines covering murder and assault, weapons, national security,
and environmental offenses.
First, the USA FREEDOM Act enacted 18 U.S.C. § 2280a (Violence against maritime
navigation and maritime transport involving weapons of mass destruction). Subsections
2280a(a)(1)(A) and (a)(1)(B)(i) prohibit certain acts against maritime navigation
committed in a manner that causes or is likely to cause death, serious injury, or damage,
when the purpose of the conduct is to intimidate a population or to compel a government
50
or international organization to do or abstain from doing any act. Subsections
2280a(a)(1)(B)(ii)(vi) prohibit certain other acts against maritime navigation.
Subsection 2280a(a)(1)(C) prohibits transporting another person on board a ship knowing
the person has committed a violation under 18 U.S.C. § 2280 (Violence against maritime
navigation) or certain subsections of section 2280a, or an offense under a listed
counterterrorism treaty. Subsection 2280a(a)(1)(D) prohibits injuring or killing a person
in connection with the commission of certain offenses under section 2280a. Subsection
2280a(a)(1)(E) prohibits attempts and conspiracies under the statute. The penalty for a
violation of these subsections is a term of imprisonment for not more than 20 years. If
the death of a person results, the penalty is imprisonment for any term of years or for life.
Subsection 2280a(a)(2) prohibits threats to commit offenses under subsection
2280a(a)(1)(A), with a penalty of imprisonment of up to five years.
The new offenses at section 2280a are referenced in Appendix A (Statutory Index) to the
following Chapter Two guidelines: §§2A1.1 (First Degree Murder); 2A1.2 (Second
Degree Murder); 2A1.3 (Voluntary Manslaughter); 2A1.4 (Involuntary Manslaughter);
2A2.1 (Assault with Intent to Commit Murder; Attempted Murder); 2A2.2 (Aggravated
Assault); 2A2.3 (Assault); 2A6.1 (Threatening or Harassing Communications); 2B1.1
(Fraud); 2B3.2 (Extortion); 2K1.3 (Unlawful Receipt, Possession, or Transportation of
Explosive Materials; Prohibited Transactions Involving Explosive Materials); 2K1.4
(Arson; Property Damage by Use of Explosives); 2M5.2 (Exportation of Arms,
Munitions, or Military Equipment or Services Without Required Validated Export
License); 2M5.3 (Providing Material Support or Resources to Designated Foreign
Terrorist Organizations or Specially Designated Global Terrorists, or For a Terrorist
Purpose); 2M6.1 (Nuclear, Biological, and Chemical Weapons, and Other Weapons of
Mass Destruction); 2Q1.1 (Knowing Endangerment Resulting From Mishandling
Hazardous or Toxic Substances, Pesticides or Other Pollutants); 2Q1.2 (Mishandling of
Hazardous or Toxic Substances or Pesticides); 2X1.1 (Conspiracy); 2X2.1 (Aiding and
Abetting); and 2X3.1 (Accessory After the Fact).
Second, the USA FREEDOM Act enacted 18 U.S.C. § 2281a (Additional offenses
against maritime fixed platforms). Subsection 2281a(a)(1) prohibits certain acts that
occur either on a fixed platform or to a fixed platform committed in a manner that may
cause death, serious injury, or damage, when the purpose of the conduct is to intimidate a
population or to compel a government or international organization to do or abstain from
doing any act. The penalty for a violation of subsection 2281a(a)(1) is a term of
imprisonment for not more than 20 years. If the death of a person results, the penalty is
imprisonment for any term of years or for life. Subsection 2281a(a)(2) prohibits threats
to commit offenses under subsection 2281a(a)(1), and the penalty for a violation of
subsection 2281a(a)(2) is imprisonment of up to five years.
The new offenses at 18 U.S.C. § 2281a are referenced to §§2A1.1, 2A1.2, 2A1.3, 2A1.4,
2A2.1, 2A2.2, 2A2.3, 2A6.1, 2B1.1, 2B3.2, 2K1.4, 2M6.1, 2Q1.1, 2Q1.2, and 2X1.1.
Third, the USA FREEDOM Act enacted 18 U.S.C. § 2332i (Acts of nuclear terrorism).
Section 2332i prohibits the possession or use of certain radioactive materials or devices
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with the intent to cause death or serious bodily injury or to cause substantial damage to
property or the environment, as well as threats to commit any such acts. The penalty for
a violation of section 2332i is imprisonment for any term of years or for life.
The new offenses at 18 U.S.C. § 2332i are referenced to §§2A6.1, 2K1.4, 2M2.1
(Destruction of, or Production of Defective, War Material, Premises, or Utilities), 2M2.3
(Destruction of, or Production of Defective, National Defense Material, Premises, or
Utilities), and 2M6.1.
The amendment also makes clerical changes to Application Note 1 to §2M6.1 (Nuclear,
Biological, and Chemical Weapons, and Other Weapons of Mass Destruction) to reflect
the redesignation of a section in the United States Code by the USA FREEDOM Act.
The three new statutes provide a wide range of elements meaning that the statutes can
be violated in a large number of alternative ways. The Commission performed a section-
by-section analysis of the elements of the new statutes and identified the Chapter Two
offense guidelines that appear most analogous. As a result, the Commission determined
that referencing the new statutes in Appendix A (Statutory Index) to a range of guidelines
will allow the courts to select the most appropriate guideline in light of the nature of the
conviction. For example, a reference to §2K1.4 (Arson; Property Damage by Use of
Explosives) is provided to account for when the defendant is convicted under section
2280a(a)(1)(A)(i) for the use of an explosive device on a ship in a manner that causes or
is likely to cause death or serious injury. See USSG App. A, Introduction (Where the
statute is referenced to more than one guideline section, the court is to “use the guideline
most appropriate for the offense conduct charged in the count of which the defendant was
convicted.”). The Commission also found it persuasive that other similar statutes are
referenced in Appendix A to a similar list of Chapter Two guidelines. Referencing these
three new statutes in a manner consistent with the treatment of existing related statutes is
reasonable to achieve parity, and will lead to consistent application of the guidelines.
Firearms As Nonmailable Items under 18 U.S.C. § 1715
Section 1715 of title 18 of the United States Code (Firearms as nonmailable; regulations)
makes it unlawful to deposit for mailing or delivery by the mails pistols, revolvers, and
other firearms capable of being concealed on the person, and the penalty for a violation of
this statute is a term of imprisonment up to two years. Section 1715 is not referenced in
Appendix A (Statutory Index). The amendment amends Appendix A to reference
offenses under section 1715 to §2K2.1 (Unlawful Receipt, Possession, or Transportation
of Firearms or Ammunition; Prohibited Transactions Involving Firearms or
Ammunition). The amendment also amends §2K2.1 to provide a base offense level of 6
under §2K2.1(a)(8) for convictions under section 1715.
The Commission received public comment suggesting that the lack of specific guidance
for section 1715 offenses caused unwarranted sentencing disparity. Commission data
provided further support for the need for an amendment to address this issue. Although
the data indicated that courts routinely applied §2K2.1 to violations of section 1715, it
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also evidenced that courts were reaching different results in the base offense level
applied. The Commission was persuaded by the data and public comment that an
Appendix A reference and corresponding changes to §2K2.1 would reduce those
unwarranted sentencing disparities. The Commission determined that §2K2.1 is the most
analogous guideline for these types of firearms offenses. By providing an Appendix A
reference for section 1715, the amendment ensures that §2K2.1 will be consistently
applied to these offenses. Moreover, the Commission decided that the accompanying
changes to §2K2.1 will eliminate the disparate application of the base offense levels in
that guideline. The Commission selected the base offense level of 6 for these offenses
because similar statutory provisions with similar penalties are referenced to §2K2.1(a)(8).
The Commission concluded that referencing section 1715 will promote consistency in
application and avoid unwarranted sentencing disparities.
Background Commentary to §2T1.6 (Failing to Collect or Truthfully Account for
and Pay Over Tax)
The Background Commentary in §2T1.6 (Failing to Collect or Truthfully Account for
and Pay Over Tax) states that “[t]he offense is a felony that is infrequently prosecuted.”
Section 2T1.6 applies to violations of 26 U.S.C. § 7202 (Willful failure to collect or pay
over tax) which requires employers to withhold from an employee’s paychecks money
representing the employee’s personal income and Social Security taxes. If an employer
willfully fails to collect, truthfully account for, or pay over such taxes, 26 U.S.C. § 7202
provides both civil and criminal remedies. The amendment makes a clerical change to
the Background Commentary to §2T1.6 to delete the statement that section 7202 offenses
are infrequently prosecuted. The amendment makes additional clerical changes in the
Introductory Commentary to Chapter Two, Part T, Subpart 2 (Alcohol and Tobacco
Taxes), and the Background Commentary to §§2T2.1 (Non-Payment of Taxes) and 2T2.2
(Regulatory Offenses) which has similar language.
The amendment reflects public comment received by the Commission that indicated
while the statement in the Background Commentary to §2T1.6 may have been accurate
when the commentary was originally written in 1987, the number of prosecutions under
section 7202 have since increased. Additionally, the Commission decided that removing
language characterizing the frequency of prosecutions for the tax offenses sentenced
under §§2T1.6, 2T2.1, and 2T2.2 will remove the perception that the Commission has
taken a position regarding the relative frequency of prosecution of such offenses.
Effective Date: The effective date of this amendment is November 1, 2016.