1994 Guideline Manual

Appendix B

Title 28 JUDICIARY AND JUDICIAL PROCEDURE

CHAPTER 58 - UNITED STATES SENTENCING COMMISSION

Section

991. United States Sentencing Commission; establishment and purposes.

992. Terms of office; compensation.

993. Powers and duties of Chairman.

994. Duties of the Commission.

995. Powers of the Commission.

996. Director and staff.

997. Annual report.

998. Definitions.

991. United States Sentencing Commission; establishment and purposes

(a) There is established as an independent commission in the judicial branch of the United States a United States Sentencing Commission which shall consist of seven voting members and one nonvoting member. The President, after consultation with representatives of judges, prosecuting attorneys, defense attorneys, law enforcement officials, senior citizens, victims of crime, and others interested in the criminal justice process, shall appoint the voting members of the Commission, by and with the advice and consent of the Senate, one of whom shall be appointed, by and with the advice and consent of the Senate, as the Chair and three of whom shall be designated by the President as Vice Chairs. At least three of the members shall be Federal judges selected after considering a list of six judges recommended to the President by the Judicial Conference of the United States. Not more than four of the members of the Commission shall be members of the same political party, and of the three Vice Chairs, no more than two shall be members of the same political party. The Attorney General, or the Attorney General's designee, shall be an ex officio, nonvoting member of the Commission. The Chair, Vice Chairs, and members of the Commission shall be subject to removal from the Commission by the President only for neglect of duty or malfeasance in office or for other good cause shown.

(b) The purposes of the United States Sentencing Commission are to

(1) establish sentencing policies and practices for the Federal criminal justice system that

(A) assure the meeting of the purposes of sentencing as set forth in section 3553(a)(2) of title 18, United States Code;

(B) provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices; and

(C) reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process; and

(2) develop means of measuring the degree to which the sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing as set forth in section 3553(a)(2) of title 18, United States Code.

(Added Pub.L. 98-473, Title II, 217(a), Oct. 12, 1984, 98 Stat. 2017, and amended Pub.L. 99-22, 1(1), Apr. 15, 1985, 99 Stat. 46; Pub.L. 103-322, Title XXVIII, 280005, Sept. 13, 1994, 108 Stat. .)

EDITORIAL NOTES

Effective Date. Section effective Oct. 12, 1984, see section 235(a)(1)(B)(i) of Pub.L. 98-473, set out as a note under section 3551 of Title 18, Crimes and Criminal Procedure.

992. Terms of office; compensation

(a) The voting members of the United States Sentencing Commission shall be appointed for six-year terms, except that the initial terms of the first members of the Commission shall be staggered so that

(1) two members, including the Chair, serve terms of six years;

(2) three members serve terms of four years; and

(3) two members serve terms of two years.

(b)(1) Subject to paragraph (2)

(A) no voting member of the Commission may serve more than two full terms; and

(B) a voting member appointed to fill a vacancy that occurs before the expiration of the term for which a predecessor was appointed shall be appointed only for the remainder of such term.

(2) A voting member of the Commission whose term has expired may continue to serve until the earlier of

(A) the date on which a successor has taken office; or

(B) the date on which the Congress adjourns sine die to end the session of Congress that commences after the date on which the member's term expired.

(c) The Chair and Vice Chairs of the Commission shall hold full-time positions and shall be compensated during their terms of office at the annual rate at which judges of the United States courts of appeals are compensated. The voting members of the Commission, other than the Chair and Vice Chair, shall hold full-time positions until the end of the first six years after the sentencing guidelines go into effect pursuant to section 235(a)(1)(B)(ii) of the Sentencing Reform Act of 1984, and shall be compensated at the annual rate at which judges of the United States courts of appeals are compensated. Thereafter, the voting members of the commission, other than the Chair and Vice Chairs, shall hold part-time positions and shall be paid at the daily rate at which judges of the United States courts of appeals are compensated. A Federal judge may serve as a member of the Commission without resigning the judge's appointment as a Federal judge.

(d) Sections 44(c) and 134(b) of this title (relating to the residence of judges) do not apply to any judge holding a full-time position on the Commission under subsection (c) of this section.

(Added Pub.L. 98-473, Title II, 217(a), Oct. 12, 1984, 98 Stat. 2018, and amended Pub.L. 99-646, 4, 6(a), Nov. 10, 1986; 100 Stat. 3592; Pub.L. 102-349, 1, Aug. 26, 1992, 106 Stat. 933; Pub.L. 103-322, Tittle XXVIII, 280005, Sept. 13, 1994, 108 Stat. .)

EDITORIAL NOTES

References in Text. Section 235(a)(1)(B)(ii) of the Sentencing Reform Act of 1984, referred to in subsec. (c), is section 235(a)(1)(B)(ii) of Pub.L. 98-473, which is set out as a note under section 3551 of Title 18, Crimes and Criminal Procedure.

Effective Date. Section effective Oct. 12, 1984, see section 235(a)(1)(B)(i) of Pub.L. 98-473, set out as a note under section 3551 of Title 18, Crimes and Criminal Procedure.

Commencement of Terms of First Members of Commission. For provisions directing that, for purposes of subsec. (a) of this section, the terms of the first members of the United States Sentencing Commission shall not begin to run until the sentencing guidelines go into effect pursuant to section 235(a)(1)(B)(ii) of Pub.L. 98-473, set out as a note under section 994 of this title, see section 235(a)(2) of Pub.L. 98-473, set out as a note under section 3551 of Title 18, Crimes and Criminal Procedure.

993. Powers and duties of Chair

The Chair shall

(a) call and preside at meetings of the Commission, which shall be held for at least two weeks in each quarter after the members of the Commission hold part-time positions; and

(b) direct

(1) the preparation of requests for appropriations for the Commission; and

(2) the use of funds made available to the Commission.

(Added Pub.L. 98-473, Title II, 217(a), Oct. 12, 1984, 98 Stat. 2019, and amended Pub.L. 99-22, 1(2), Apr. 15, 1985, 99 Stat. 46; Pub.L. 99-646, 5, Nov. 10, 1986, 100 Stat. 3592; Pub.L. 103-322, Title XXVIII, 280005(c)(1), Sept. 13, 1994, 108 Stat. .)

EDITORIAL NOTES

Effective Date. Section effective Oct. 12, 1984, see section 235(a)(1)(B)(i) of Pub.L. 98-473, set out as a note under section 3551 of Title 18, Crimes and Criminal Procedure.

994. Duties of the Commission

(a) The Commission, by affirmative vote of at least four members of the Commission, and pursuant to its rules and regulations and consistent with all pertinent provisions of this title and title 18, United States Code, shall promulgate and distribute to all courts of the United States and to the United States Probation System

(1) guidelines, as described in this section, for use of a sentencing court in determining the sentence to be imposed in a criminal case, including

(A) a determination whether to impose a sentence to probation, a fine, or a term of imprisonment;

(B) a determination as to the appropriate amount of a fine or the appropriate length of a term of probation or a term of imprisonment;

(C) a determination whether a sentence to a term of imprisonment should include a requirement that the defendant be placed on a term of supervised release after imprisonment, and, if so, the appropriate length of such a term;

(D) a determination whether multiple sentences to terms of imprisonment should be ordered to run concurrently or consecutively; and

(E) a determination under paragraphs (6) and (11) of section 3563(b) of title 18;

(2) general policy statements regarding application of the guidelines or any other aspect of sentencing or sentence implementation that in the view of the Commission would further the purposes set forth in section 3553(a)(2) of title 18, United States Code, including the appropriate use of

(A) the sanctions set forth in sections 3554, 3555, and 3556 of title 18;

(B) the conditions of probation and supervised release set forth in sections 3563(b) and 3583(d) of title 18;

(C) the sentence modification provisions set forth in sections 3563(c), 3564, 3573, and 3582(c) of title 18;

(D) the fine imposition provisions set forth in section 3572 of title 18;

(E) the authority granted under rule 11(e)(2) of the Federal Rules of Criminal Procedure to accept or reject a plea agreement entered into pursuant to rule 11(e)(1); and

(F) the temporary release provisions set forth in section 3622 of title 18, and the prerelease custody provisions set forth in section 3624(c) of title 18; and

(3) guidelines or general policy statements regarding the appropriate use of the provisions for revocation of probation set forth in section 3565 of title 18, and the provisions for modification of the term or conditions of supervised release and revocation of supervised release set forth in section 3583(e) of title 18.

(b)(1) The Commission, in the guidelines promulgated pursuant to subsection (a)(1), shall, for each category of offense involving each category of defendant, establish a sentencing range that is consistent with all pertinent provisions of title 18, United States Code.

(2) If a sentence specified by the guidelines includes a term of imprisonment, the maximum of the range established for such a term shall not exceed the minimum of that range by more than the greater of 25 percent or 6 months, except that, if the minimum term of the range is 30 years or more, the maximum may be life imprisonment.

(c) The Commission, in establishing categories of offenses for use in the guidelines and policy statements governing the imposition of sentences of probation, a fine, or imprisonment, governing the imposition of other authorized sanctions, governing the size of a fine or the length of a term of probation, imprisonment, or supervised release, and governing the conditions of probation, supervised release, or imprisonment, shall consider whether the following matters, among others, have any relevance to the nature, extent, place of service, or other incidents1So in original. Probably should be "incidence". of an appropriate sentence, and shall take them into account only to the extent that they do have relevance

(1) the grade of the offense;

(2) the circumstances under which the offense was committed which mitigate or aggravate the seriousness of the offense;

(3) the nature and degree of the harm caused by the offense, including whether it involved property, irreplaceable property, a person, a number of persons, or a breach of public trust;

(4) the community view of the gravity of the offense;

(5) the public concern generated by the offense;

(6) the deterrent effect a particular sentence may have on the commission of the offense by others; and

(7) the current incidence of the offense in the community and in the Nation as a whole.

(d) The Commission in establishing categories of defendants for use in the guidelines and policy statements governing the imposition of sentences of probation, a fine, or imprisonment, governing the imposition of other authorized sanctions, governing the size of a fine or the length of a term of probation, imprisonment, or supervised release, and governing the conditions of probation, supervised release, or imprisonment, shall consider whether the following matters, among others with respect to a defendant, have any relevance to the nature, extent, place of service, or other incidents1So in original. Probably should be "incidence". of an appropriate sentence, and shall take them into account only to the extent that they do have relevance

(1) age;

(2) education;

(3) vocational skills;

(4) mental and emotional condition to the extent that such condition mitigates the defendant's culpability or to the extent that such condition is otherwise plainly relevant;

(5) physical condition, including drug dependence;

(6) previous employment record;

(7) family ties and responsibilities;

(8) community ties;

(9) role in the offense;

(10) criminal history; and

(11) degree of dependence upon criminal activity for a livelihood.

The Commission shall assure that the guidelines and policy statements are entirely neutral as to the race, sex, national origin, creed, and socioeconomic status of offenders.

(e) The Commission shall assure that the guidelines and policy statements, in recommending a term of imprisonment or length of a term of imprisonment, reflect the general inappropriateness of considering the education, vocational skills, employment record, family ties and responsibilities, and community ties of the defendant.

(f) The Commission, in promulgating guidelines pursuant to subsection (a)(1), shall promote the purposes set forth in section 991(b)(1), with particular attention to the requirements of subsection 991(b)(1)(B) for providing certainty and fairness in sentencing and reducing unwarranted sentence disparities.

(g) The Commission, in promulgating guidelines pursuant to subsection (a)(1) to meet the purposes of sentencing as set forth in section 3553(a)(2) of title 18, United States Code, shall take into account the nature and capacity of the penal, correctional, and other facilities and services available, and shall make recommendations concerning any change or expansion in the nature or capacity of such facilities and services that might become necessary as a result of the guidelines promulgated pursuant to the provisions of this chapter. The sentencing guidelines prescribed under this chapter shall be formulated to minimize the likelihood that the Federal prison population will exceed the capacity of the Federal prisons, as determined by the Commission.

(h) The Commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for categories of defendants in which the defendant is eighteen years old or older and

(1) has been convicted of a felony that is

(A) a crime of violence; or

(B) an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, and 959), and the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.) and

(2) has previously been convicted of two or more prior felonies, each of which is

(A) a crime of violence; or

(B) an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, and 959), and the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.).

(i) The Commission shall assure that the guidelines specify a sentence to a substantial term of imprisonment for categories of defendants in which the defendant

(1) has a history of two or more prior Federal, State, or local felony convictions for offenses committed on different occasions;

(2) committed the offense as part of a pattern of criminal conduct from which the defendant derived a substantial portion of the defendant's income;

(3) committed the offense in furtherance of a conspiracy with three or more persons engaging in a pattern of racketeering activity in which the defendant participated in a managerial or supervisory capacity;

(4) committed a crime of violence that constitutes a felony while on release pending trial, sentence, or appeal from a Federal, State, or local felony for which he was ultimately convicted; or

(5) committed a felony that is set forth in section 401 or 1010 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 841 and 960), and that involved trafficking in a substantial quantity of a controlled substance.

(j) The Commission shall insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense, and the general appropriateness of imposing a term of imprisonment on a person convicted of a crime of violence that results in serious bodily injury.

(k) The Commission shall insure that the guidelines reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing the defendant with needed educational or vocational training, medical care, or other correctional treatment.

(l) The Commission shall insure that the guidelines promulgated pursuant to subsection (a)(1) reflect

(1) the appropriateness of imposing an incremental penalty for each offense in a case in which a defendant is convicted of

(A) multiple offenses committed in the same course of conduct that result in the exercise of ancillary jurisdiction over one or more of the offenses; and

(B) multiple offenses committed at different times, including those cases in which the subsequent offense is a violation of section 3146 (penalty for failure to appear) or is committed while the person is released pursuant to the provisions of section 3147 (penalty for an offense committed while on release) of title 18; and

(2) the general inappropriateness of imposing consecutive terms of imprisonment for an offense of conspiring to commit an offense or soliciting commission of an offense and for an offense that was the sole object of the conspiracy or solicitation.

(m) The Commission shall insure that the guidelines reflect the fact that, in many cases, current sentences do not accurately reflect the seriousness of the offense. This will require that, as a starting point in its development of the initial sets of guidelines for particular categories of cases, the Commission ascertain the average sentences imposed in such categories of cases prior to the creation of the Commission, and in cases involving sentences to terms of imprisonment, the length of such terms actually served. The Commission shall not be bound by such average sentences, and shall independently develop a sentencing range that is consistent with the purposes of sentencing described in section 3553(a)(2) of Title 18, United States Code.

(n) The Commission shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by statute as a minimum sentence, to take into account a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense.

(o) The Commission periodically shall review and revise, in consideration of comments and data coming to its attention, the guidelines promulgated pursuant to the provisions of this section. In fulfilling its duties and in exercising its powers, the Commission shall consult with authorities on, and individual and institutional representatives of, various aspects of the Federal criminal justice system. The United States Probation System, the Bureau of Prisons, the Judicial Conference of the United States, the Criminal Division of the United States Department of Justice, and a representative of the Federal Public Defenders shall submit to the Commission any observations, comments, or questions pertinent to the work of the Commission whenever they believe such communication would be useful, and shall, at least annually, submit to the Commission a written report commenting on the operation of the Commission's guidelines, suggesting changes in the guidelines that appear to be warranted, and otherwise assessing the Commission's work.

(p) The Commission, at or after the beginning of a regular session of Congress, but not later than the first day of May, may promulgate under subsection (a) of this section and submit to Congress amendments to the guidelines and modifications to previously submitted amendments that have not taken effect, including modifications to the effective dates of such amendments. Such an amendment or modification shall be accompanied by a statement of the reasons therefor and shall take effect on a date specified by the Commission, which shall be no earlier than 180 days after being so submitted and no later than the first day of November of the calendar year in which the amendment or modification is submitted, except to the extent that the effective date is revised or the amendment is otherwise modified or disapproved by Act of Congress.

(q) The Commission and the Bureau of Prisons shall submit to Congress an analysis and recommendations concerning maximum utilization of resources to deal effectively with the Federal prison population. Such report shall be based upon consideration of a variety of alternatives, including

(1) modernization of existing facilities;

(2) inmate classification and periodic review of such classification for use in placing inmates in the least restrictive facility necessary to ensure adequate security; and

(3) use of existing Federal facilities, such as those currently within military jurisdiction.

(r) The Commission, not later than two years after the initial set of sentencing guidelines promulgated under subsection (a) goes into effect, and thereafter whenever it finds it advisable, shall recommend to the Congress that it raise or lower the grades, or otherwise modify the maximum penalties, of those offenses for which such an adjustment appears appropriate.

(s) The Commission shall give due consideration to any petition filed by a defendant requesting modification of the guidelines utilized in the sentencing of such defendant, on the basis of changed circumstances unrelated to the defendant, including changes in

(1) the community view of the gravity of the offense;

(2) the public concern generated by the offense; and

(3) the deterrent effect particular sentences may have on the commission of the offense by others.

(t) The Commission, in promulgating general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A) of title 18, 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. Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.

(u) If the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.

(v) The Commission shall ensure that the general policy statements promulgated pursuant to subsection (a)(2) include a policy limiting consecutive terms of imprisonment for an offense involving a violation of a general prohibition and for an offense involving a violation of a specific prohibition encompassed within the general prohibition.

(w) The appropriate judge or officer shall submit to the Commission in connection with each sentence imposed (other than a sentence imposed for a petty offense, as defined in title 18, for which there is no applicable sentencing guideline) a written report of the sentence, the offense for which it is imposed, the age, race, and sex of the offender, information regarding factors made relevant by the guidelines, and such other information as the Commission finds appropriate. The Commission shall submit to Congress at least annually an analysis of these reports and any recommendations for legislation that the Commission concludes is warranted by that analysis.

(x) The provisions of section 553 of title 5, relating to publication in the Federal Register and public hearing procedure, shall apply to the promulgation of guidelines pursuant to this section.

(y) The Commission, in promulgating guidelines pursuant to subsection (a)(1), may include, as a component of a fine, the expected costs to the Government of any imprisonment, supervised release, or probation sentence that is ordered.

(Added Pub.L. 98-473, Title II, 217(a), Oct. 12, 1984, 98 Stat. 2019, and amended Pub.L. 99-217, 3, Dec. 26, 1985, 99 Stat. 1728; Pub.L. 99-363, 2, July 11, 1986, 100 Stat. 770; Pub.L. 99-570, Title I, 1006(b), 1008, Oct. 27, 1986, 100 Stat. 3214; Pub.L. 99-646, 6(b), 56, Nov. 10, 1986, 100 Stat. 3592, 3611; Pub.L. 100-182, 16(b), 23, Dec. 7, 1987, 101 Stat. 1269, 1271; Pub.L. 100-690, Title VII, 7083, 7103(b), 7109, Nov. 18, 1988, 102 Stat. 4408, 4418, 4419; Pub.L. 103-322, Title II 20403(b) Title XXVII, 280005(c)(4), Title XXXIII, 330003(f)(1), Sept. 13, 1994, 108 Stat. , , .)

EDITORIAL NOTES

Codification. Amendment by Pub.L. 99-646 to subsec. (t) of this section has been executed to subsec. (u) as the probable intent of Congress in view of redesignation of subsec. (t) as (u) by Pub.L. 99-570.

Effective Date of 1987 Amendment. Amendment by Pub.L. 100-182 applicable with respect to offenses committed after Dec. 7, 1987, see section 26 of Pub.L. 100-182.

Effective Date. Section effective Oct. 12, 1984, see section 235(a)(1)(B)(i) of Pub.L. 98-473, set out as a note under section 3551 of Title 18, Crimes and Criminal Procedure.

Sexual Offenses by Repeat Offenders; Amendment of Sentencing Guidelines. Pub.L. 103-322, Title IV, 40111(b), Sept. 13, 1994, 108 Stat. , provided that: "The Sentencing Commission shall implement the amendment made by subsection (a)[of this section (pertaining to repeat sexual offenders)] by promulgating amendments, if appropriate, in the sentencing guidelines applicable to chapter 109A [of title 18] offenses."

Sexual Offenses; Amendment of Sentencing Guidelines. Pub.L. 103-322, Title IV, 40112, Sept. 13, 1994,

108 Stat. , provided that:

"(a) Amendment of Sentencing Guidelines.Pursuant to its authority under section 994(p) of title 28, United States Code, the United States Sentencing Commission shall review and amend, where necessary, its sentencing guidelines on aggravated sexual abuse under section 2241 of title 18, United States Code, or sexual abuse under section 2242 of title 18 United States Code, as follows:

"(1) The Commission shall review and promulgate amendments to the guidelines, if appropriate, to enhance penalties if more than 1 offender is involved in the offense.

"(2) The Commission shall review and promulgate amendments to the guidelines, if appropriate, to reduce unwarranted disparities between the sentences for sex offenders who are known to the victim and sentences for sex offenders who are not known to the victim.

"(3) The Commission shall review and promulgate amendments to the guidelines to enhance penalties, if appropriate, to render Federal penalties on Federal territory commensurate with penalties for similar offenses in the States.

"(4) The Commission shall review and promulgate amendments to the guidelines, if appropriate, to account for the general problem of recidivism in cases of sex offenses, the severity of the offense, and its devastating effects on survivors.

"(b) Report.Not later than 180 days after the date of enactment of this Act, the United States Sentencing Commission shall review and submit to Congress a report containing an analysis of Federal rape sentencing, accompanied by comment from independent experts in the field, describing

"(1) comparative Federal sentences for cases in which the rape victim is known to the defendant and cases in which the rape victim is not known to the defendant;

"(2) comparative Federal sentences for cases on Federal territory and sentences in surrounding States; and

"(3) an analysis of the effect of rape sentences on populations residing primarily on Federal territory relative to the impact of other Federal offenses in which the existence of Federal jurisdiction depends upon the offense's being committed on Federal territory."

Report on Penalties for Intentional Transmission of HIV. Pub.L. 103-322, Title IV, 40503(c), Sept. 13, 1994, 108 Stat. , provided that: "Not later than 6 months after the date of enactment of this Act, the United States Sentencing Commission shall conduct a study and prepare and submit to the committees on the Judiciary of the Senate and the House of Representatives a report concerning recommendations for the revision of sentencing guidelines that relate to offenses in which an HIV infected individual engages in sexual activity if the individual knows that he or she is infected with HIV and intends, through such sexual activity, to expose another to HIV."

Limitation on Applicability of Mandatory Minimum Penalties in Certain Cases; Sentencing Commission Authority. Pub.L. 103-322, Title VIII, 80001(b), Sept. 13, 1994, 108 Stat. , provided that:

"(1) In General.(A) The United States Sentencing Commission (referred to in this subsection as the `Commission'), under section 994(a)(1) and (p) of title 28

"(i) shall promulgate guidelines, or amendments to guidelines, to carry out the purposes of this section and the amendment made by this section; and

"(ii) may promulgate policy statements, or amendments to policy statements, to assist in the application of this section and that amendment.

"(B) In the case of a defendant for whom the statutorily required minimum sentence of 5 years, such guidelines and amendments to guidelines issued under subparagraph (A) shall call for a guideline range in which the lowest term of imprisonment is at least 24 months.

"(2) Procedures.If the Commission determines that it is necessary to do so in order that the amendments made under paragraph (1) may take effect on the effective date of the amendment made by subsection (a), the Commission may promulgate the amendments made under paragraph (1) in accordance with the procedures set forth in section 21(a) of the Sentencing Act of 1987, as though the authority under that section had not expired."

Increased Penalties for Drug-Dealing in "Drug-Free" Zones; Amendment of Sentencing Guidelines. Pub.L. 103-322, Title IX, 90102, Sept. 13, 1994, 108 Stat. , provided that: "Pursuant to its authority under section 994 of title 28, United States Code, the United States Sentencing Commission shall amend its sentencing guidelines to provide an appropriate enhancement for a defendant convicted of violating section 419 of the Controlled Substances Act (21 U.S.C. 860)."

Enhanced Penalties for Illegal Drug Use in Federal Prisons and for Smuggling Drugs into Federal Prisons; Amendment of Sentencing Guidelines. Pub.L. 103-322, Title IX, 90103, Sept. 13, 1994, 108 Stat. , provided that:

"(a) Declaration of Policy.It is the policy of the Federal Government that the use or distribution of illegal drugs in the Nation's Federal prisons will not be tolerated and that such crimes shall be prosecuted to the fullest extent of the law.

"(b) Sentencing Guidelines.Pursuant to its authority under section 994 of title 28, United States Code, the United States Sentencing Commission shall amend its sentencing guidelines to appropriately enhance the penalty for a person convicted of an offense

"(1) under section 404 of the Controlled Substances Act involving simple possession of a controlled substance within a Federal prison or other Federal detention facility; or

"(2) under section 401(b) of the Controlled Substances Act involving the smuggling of a controlled substance into a Federal prison or other Federal detention facility or the distribution or intended distribution of a controlled substance within a Federal prison or other Federal detention facility.

"(c) No Probation.Notwithstanding any other law, the court shall not sentence a person convicted of an offense described in subsection (b) to probation."

Enhanced Penalty for Use of a Semiautomatic Firearm During a Crime of Violence or a Drug Trafficking Crime; Amendment to Sentencing Guidelines. Pub.L. 103-322, Title XI, 110501, Sept. 13, 1994, 108 Stat. , provided that:

"(a) Amendment to Sentencing Guidelines.Pursuant to its authority under section 994 of title 28, United States Code, the United States Sentencing Commission shall amend its sentencing guidelines to provide an appropriate enhancement of the punishment for a crime of violence (as defined in section 924(c)(3) of title 18, United States Code) or a drug trafficking crime (as defined in section 924(c)(2) of title 18, United States Code) if a semiautomatic firearm is involved.

"(b) Semiautomatic Firearm.In subsection (a), `semiautomatic firearm' means any repeating firearm that utilizes a portion of the energy of a firing cartridge to extract the fired cartridge case and chamber the next round and that requires a separate pull of the trigger to fire each cartridge."

Enhanced Penalty for Second Offense of Using an Explosive to Commit a Felony; Amendment of Sentencing Guidelines. Pub.L. 103-322, Title XI, 110502, Sept. 13, 1994, 108 Stat. , provided that: "Pursuant to its authority under section 994 of title 28, United States Code, the United States Sentencing Commission shall promulgate amendments to the sentencing guidelines to appropriately enhance penalties in a case in which a defendant convicted under section 844(h) of title 18, United States Code, has previously been convicted under that section."

Using a Firearm in the Commission of Counterfeiting or Forgery; Amendment of Sentencing Guidelines. Pub.L. 103-322, Title XI, 110512, Sept. 13, 1994, 108 Stat. , provided that: "Pursuant to its authority under section 994 of title 28, United States Code, the United States Sentencing Commission shall amend its sentencing guidelines to provide an appropriate enhancement of the punishment for a defendant convicted of a felony under chapter 25 of title 18, United States Code, if the defendant used or carried a firearm (as defined in section 921(a)(3) of title 18, United States Code) during and in relation to the felony."

Enhanced Penalties for Firearms Possession by Violent Felons and Serious Drug Offenders; Amendment of Sentencing Guidelines. Pub.L. 103-322, Title XI, 110513, Sept. 13, 1994, 108 Stat. , provided that: "Pursuant to its authority under section 994 of title 28, United States Code, the United States Sentencing Commission shall amend its sentencing guidelines to

"(1) appropriately enhance penalties in cases in which a defendant convicted under section 922(g) of title 18, United States Code, has 1 prior conviction by any court referred to in section 922(g)(1) of title 18 for a violent felony (as defined in section 924(e)(2)(B) of that title) or a serious drug offense (as defined in section 924(e)(2)(A) of that title); and

"(2) appropriately enhance penalties in cases in which such a defendant has 2 prior convictions for a violent felony (as so defined) or a serious drug offense (as so defined)."

Sentencing Guidelines Increase for Terrorist Crimes. Pub.L. 103-322, Title XII, 120004, Sept. 13, 1994,

108 Stat. , provided that: "The United States Sentencing Commission is directed to amend its sentencing guidelines to provide an appropriate enhancement for any felony, whether committed within or outside the United States, that involves or is intended to promote international terrorism, unless such involvement or intent is itself an element of the crime."

Solicitation of Minor to Commit Crime; Amendment of Sentencing Guidelines. Pub.L. 103-322, Title XIV, 140008, Sept. 13, 1994, 108 Stat. , provided that:

"(a) Directive to Sentencing Commission.(1) The United States Sentencing Commission shall promulgate guidelines or amend existing guidelines to provide that a defendant 21 years of age or older who has been convicted of an offense shall receive an appropriate sentence enhancement if the defendant involved a minor in the commission of the offense.

"(2) The Commission shall provide that the guidelines enhancement promulgated pursuant to paragraph (1) shall apply for any offense in relation to which the defendant has solicited, procured, recruited, counseled, encouraged, trained, directed, commanded, intimidated, or otherwise used or attempted to use any person less than 18 years of age with the intent that the minor would commit a Federal offense.

"(b) Relevant Considerations.In implementing the directive in subsection (a), the Sentencing Commission shall consider

"(1) the severity of the crime that the defendant intended the minor to commit;

"(2) the number of minors that the defendant used or attempted to use in relation to the offense;

"(3) the fact that involving a minor in a crime of violence is frequently of even greater seriousness than involving a minor in a drug trafficking offense, for which the guidelines already provide a two-level enhancement; and

"(4) the possible relevance of the proximity in age between the offender and the minor(s) involved in the offense."

Drug Free Truck Stops and Safety Rest Areas; Amendment of Sentencing Guidelines. Pub.L. 103-322, Title XVIII, 180201(c), Sept. 13, 1994, 108 Stat. , provided that: "Pursuant to its authority under section 994 of title 28, United States Code, and section 21 of the Sentencing Act of 1987 (28 U.S.C. 994 note), the United States Sentencing Commission shall promulgate guidelines, or shall amend existing guidelines, to provide an appropriate enhancement of punishment for a defendant convicted of violating section 409 of the Controlled Substances Act, as added by subsection (b) [of this section]."

Crimes Against the Elderly; Amendment of Sentencing Guidelines. Pub.L. 103-322, Title XXIV, 240002, Sept. 13, 1994, 108 Stat. , provided that:

"(a) In General.Pursuant to its authority under the Sentencing Reform Act of 1984 and section 21 of the Sentencing Act of 1987 (including its authority to amend the sentencing guidelines and policy statements) and its authority to make such amendments on an emergency basis, the United States Sentencing Commission shall ensure that the applicable guideline range for a defendant convicted of a crime of violence against an elderly victim is sufficiently stringent to deter such a crime, to protect the public from additional crimes of such a defendant, and to adequately reflect the heinous nature of such an offense.

"(b) Criteria.In carrying out subsection (a), the United States Sentencing Commission shall ensure that

"(1) the guidelines provide for increasingly severe punishment for a defendant commensurate with the degree of physical harm caused to the elderly victim;

"(2) the guidelines take appropriate account of the vulnerability of the victim; and

"(3) the guidelines provide enhanced punishment for a defendant convicted of a crime of violence against an elderly victim who has previously been convicted of a crime of violence against an elderly victim, regardless of whether the conviction occurred in Federal or State court.

"(c) Definitions.In this section

"`crime of violence' means an offense under section 113, 114, 1111, 1112, 1113, 1117, 2241, 2242, or 2244 of title 18, United States Code.

"`elderly victim' means a victim who is 65 years of age or older at the time of an offense."

Increased Penalties for Fraud Against Older Victims; Amendment of Sentencing Guidelines. Pub.L. 103-322, Title XXV, 250003, Sept. 13, 1994, 108 Stat. , provided that:

"(a) Review.The United States Sentencing Commission shall review and, if necessary, amend the sentencing guidelines to ensure that victim related adjustments for fraud offenses against older victims over the age of 55 are adequate.

"(b) Report.Not later than 180 days after the date of enactment of this Act, the Sentencing Commission shall report to Congress the result of its review under subsection (a)."

Direction to United States Sentencing Commission regarding Sentencing Enhancements for Hate Crimes. Pub.L. 103-322, Title XXVIII, 280003, Sept. 13, 1994, 108 Stat. , provided that:

"(a) Definition.In this section, `hate crime' means a crime in which the defendant intentionally selects a victim, or in the case of a property crime, the property that is the object of the crime, because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person.

"(b) Sentencing Enhancement.Pursuant to section 994 of title 28, United States Code, the United States Sentencing Commission shall promulgate guidelines or amend existing guidelines to provide sentencing enhancements of not less than 3 offense levels for offenses that the finder of fact at trial determines beyond a reasonable doubt are hate crimes. In carrying out this section, the United States Sentencing Commission shall ensure that there is reasonable consistency with other guidelines, avoid duplicative punishments for substantially the same offense, and take into account any mitigating circumstances that might justify exceptions."

Cocaine Penalty Study. Pub.L. 103-322, Title XXVIII, 280006, Sept. 13, 1994, 108 Stat. , provided that: "Not later than December 31, 1994, the United States Sentencing Commission shall submit a report to Congress on issues relating to sentences applicable to offenses involving the possession or distribution of all forms of cocaine. The report shall address the differences in penalty levels that apply to different forms of cocaine and include any recommendations that the Commission may have for retention or modification of such differences in penalty levels."

Sexual Abuse and Exploitation of Minors; Amendment of Sentencing Guidelines. Pub.L. 102-141, Title VI, 632, Oct. 28, 1991, 105 Stat. 876, provided that:

"(1) Pursuant to its authority under section 994 of title 28, United States Code [this section], the Sentencing Commission shall promulgate guidelines, or amend existing or proposed guidelines as follows:

"(A) Guideline 2G2.2 to provide a base offense level of not less than 15 and to provide at least a 5 level increase for offenders who have engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.

"(B) Guideline 2G2.4 to provide that such guideline shall apply only to offense conduct that involves the simple possession of materials proscribed by chapter 110 of title 18, United States Code [section 2251 et seq. of Title 18, Crimes and Criminal Procedure] and guideline 2G2.2 to provide that such guideline shall apply to offense conduct that involves receipt or trafficking (including, but not limited to transportation, distribution, or shipping).

"(C) Guideline 2G2.4 to provide a base offense level of not less than 13, and to provide at least a 2 level increase for possessing 10 or more books, magazines, periodicals, films, video tapes or other items containing a visual depiction involving the sexual exploitation of a minor.

"(D) Section 2G3.1 to provide a base offense level of not less than 10.

"(2)(A) Notwithstanding any other provision of law, the Sentencing Commission shall promulgate the amendments mandated in subsection (1) by November 1, 1991, or within 30 days after enactment [probably means date of enactment of Pub.L. 102-141, which was approved Oct. 28, 1991], whichever is later. The amendments to the guidelines promulgated under subsection (1) shall take effect November 1, 1991, or 30 days after enactment, and shall supersede any amendment to the contrary contained in the amendments to the sentencing guidelines submitted to the Congress by the Sentencing Commission on or about May 1, 1991.

"(B) The provisions of section 944(x) of title 28, United States Code [subsec. (x) of this section], shall not apply to the promulgation or amendment of guidelines under this section."

Sexual Crimes Against Children; Amendment of Sentencing Guidelines. Pub.L. 101-647, Title III, 321, Nov. 29, 1990, 104 Stat. 4817, provided that: "The United States Sentencing Commission shall amend existing guidelines for sentences involving sexual crimes against children, including offenses contained in chapter 109A of title 18 [chapter 109A of Title 18, Crimes and Criminal Procedure], so that more substantial penalties may be imposed if the Commission determines current penalties are inadequate."

Enhanced Penalties for Kidnapping Offenses Involving Children; Promulgation of Guidelines. Pub.L. 101-647, Title IV, 401, Nov. 29, 1990, 104 Stat 4819, amended 18 U.S.C. 1201 by adding the following new subsection:

"(g) Special Rule for Certain Offenses Involving Children.-

"(1) To Whom Applicable.-If-

"(A) the victim of an offense under this section has not attained the age of eighteen years; and

"(B) the offender-

"(i) has attained such age; and

"(ii) is not-

"(I) a parent;

"(II) a grandparent;

"(III) a brother;

"(IV) a sister;

"(V) an aunt;

"(VI) an uncle; or

"(VII) an individual having legal custody of the victim;

the sentence under this section for such offense shall be subject to paragraph (2) of this subsection.

"(2) Guidelines.-The United States Sentencing Commission is directed to amended the existing guidelines for the offense of `kidnapping, abduction, or unlawful restraint,' by including the following additional specific offense characteristics: If the victim was intentionally maltreated (i.e., denied either food or medical care) to a life-threatening degree, increase by 4 levels; if the victim was sexually exploited (i.e., abused, used involuntarily for pornographic purposes) increase by 3 levels; if the victim was placed in the care or custody of another person who does not have a legal right to such care or custody of the child either in exchange for money or other consideration, increase by 3 levels; if the defendant allowed the child to be subjected to any of the conduct specified in this section by another person, then increase by 2 levels."

Sentencing Guidelines Increased Penalties in Major Bank Crimes Cases. Pub.L. 101-647, Title XXV, 2507, Nov. 29, 1990, 104 Stat. 4862, provided that:

"(a) Increased Penalties.-Pursuant to section 994 of title 28, United States Code [this section], and section 21 of the Sentencing Act of 1987 [Pub.L. 100-182, 21, set out as a note under this section] the United States Sentencing Commission shall promulgate guidelines, or amend existing guidelines, to provide that a defendant convicted of violating, or conspiring to violate, section 215, 656, 657, 1005, 1006, 1007, 1014, 1032, or 1344 of title 18, United States Code [sections 215, 656, 657, 1005, 1006, 1007, 1014, 1032, or 1344 of Title 18, Crimes and Criminal Procedure], or section 1341 or 1343 [section 1341 or 1343 of Title 18] affecting a financial institution (as defined in section 20 of title 18, United States Code) [section 20 of Title 18] shall be assigned not less than offense level 24 under chapter 2 of the sentencing guidelines if the defendant derives more than $1,000,000 in gross receipts from the offense.

"(b) Amendments to Sentencing Guidelines.-If the sentencing guidelines are amended after the effective date of this section, the Sentencing Commission shall implement the instruction set forth in subsection (a) so as to achieve a comparable result.

Sentencing Guidelines Relating to Methamphetamine Offenses. Pub.L. 101-647, Title XXVII, 2701, Nov. 29, 1990, 104 Stat. 4912, provided that: "The United States Sentencing Commission is instructed to amend the existing guidelines for offenses involving smokable crystal methamphetamine under section 401(b) of the Controlled Substances Act (21 U.S.C. 841(b)) [section 841(b) of Title 21, Food and Drugs] so that convictions for offenses involving smokable crystal methamphetamine will be assigned an offense level under the guidelines which is two levels above that which would have been assigned to the same offense involving other forms of methamphetamine."

Sentencing Guidelines for Crimes Involving Federally Insured Financial Institutions. Pub.L. 101-73, Title IX, 961(m), Aug. 9, 1989, 103 Stat. 501, provided that:

"Pursuant to section 994 of title 28, United States Code [this section], and section 21 of the Sentencing Act of 1987 [Pub.L. 100-182, 21, set out as a note under this section], the United States Sentencing Commission shall promulgate guidelines, or amend existing guidelines, to provide for a substantial period of incarceration for a violation of, or a conspiracy to violate, section 215, 656, 657, 1005, 1006, 1007, 1014, 1341, 1343, or 1344 of title 18, United States Code [sections 215, 656, 657, 1005, 1006, 1007, 1014, 1341, 1343, or 1344 of Title 18, Crimes and Criminal Procedure], that substantially jeopardizes the safety and soundness of a federally insured financial institution."

Sentencing Guidelines for Personal Injury From Fraud. Pub.L. 100-700, Chapter 47, 2(b), Nov. 19, 1988,

102 Stat. 4632, provided that:

"Pursuant to its authority under section 994(p) of title 28, United States Code [section 994(p) of Title 28, Judiciary and Judicial Procedure] and section 21 of the Sentencing Act of 1987 [Pub.L. 100-182, 21, set out as a note under this section], the United States Sentencing Commission shall promulgate guidelines, or shall amend existing guidelines, to provide for appropriate penalty enhancements, where conscious or reckless risk of serious personal injury resulting from the fraud has occurred. The Commission shall consider the appropriateness of assigning to such a defendant an offense level under Chapter Two of the sentencing guidelines that is at least two levels greater than the level that would have been assigned had conscious or reckless risk of serious personal injury not resulted from the fraud."

Penalties For Importation of Controlled Substances by Aircraft and Other Vessels; Promulgation of Sentencing Guidelines. Section 6453 of Pub.L. 100-690 provided that:

"(a) In general.Pursuant to its authority under section 994(p) of title 28, United States Code [subsec. (p) of this section], and section 21 of the Sentencing Act of 1987 [section 21 of Pub.L. 100-182, set out as a note under this section], the United States Sentencing Commission shall promulgate guidelines, or shall amend existing guidelines, to provide that a defendant convicted of violating section 1010(a) of the Controlled Substances Import and Export Act (21 U.S.C. 960(a)) [section 960(a) of Title 21, Food and Drugs] under circumstances in which

"(1) an aircraft other than a regularly scheduled commercial air carrier was used to import the controlled substance; or

"(2) the defendant acted as a pilot, copilot, captain, navigator, flight officer, or any other operation officer aboard any craft of vessel carrying a controlled substance.

shall be assigned an offense level under chapter 2 of the sentencing guidelines that is

"(A) two levels greater than the level that would have been assigned had the offense not been committed under circumstances set forth in (A) or (B) above; and

"(B) in no event less than level 26.

"(b) Effect of amendment.If the sentencing guidelines are amended after the effective date of this section [probably means date of enactment of this section, Nov. 18, 1988], the Sentencing Commission shall implement the instruction set forth in subsection (a) so as to achieve a comparable result."

Enhanced Penalties For Offenses Involving Children; Promulgation of Sentencing Guidelines. Section 6454 of Pub.L. 100-690 provided that:

"(a) In general.Pursuant to its authority under section 994(p) of title 28, United States Code [subsec. (p) of this section], and section 21 of the Sentencing Act of 1987 [section 21 of Pub.L. 100-182, set out as a note under this section], the United States Sentencing Commission shall promulgate guidelines, or shall amend existing guidelines, to provide that a defendant convicted of violating sections 405, 405A, or 405B of the Controlled Substances Act (21 U.S.C. 845, 845a or 845b) [sections 845, 845a, and 845b of Title 21, Food and Drugs] involving a person under 18 years of age shall be assigned an offense level under chapter 2 of the sentencing guidelines that is

"(1) two levels greater than the level that would have been assigned for the underlying controlled substance offense; and

"(2) in no event less than level 26.

"(b) Effects of amendment.If the sentencing guidelines are amended after the effective date of this section [probably means date of enactment of this section, Nov. 18, 1988], the Sentencing Commission shall implement the instruction set forth in subsection (a) so as to achieve a comparable result.

"(c) Multiple enhancements.The guidelines referred to in subsection (a), as promulgated or amended under such subsection, shall provide that an offense that could be subject to multiple enhancements pursuant to such subsection is subject to not more than one such enhancement."

Drug Offenses Within Federal Prisons; Promulgation of Sentencing Guidelines. Section 6468(c) and (d) of Pub.L. 100-690 provided that:

"(c) Pursuant to its authority under section 994(p) of title 28, United States Code [subsec. (p) of this section], and section 21 of the Sentencing Act of 1987 [section 21 of Pub.L. 100-182, set out as a note under this section], the United States Sentencing Commission shall promulgate guidelines, or shall amend existing guidelines, to provide that a defendant convicted of violating section 1791(a)(1) of title 18, United States Code [section 1791(a)(1) of Title 18, Crimes and Criminal Procedure], and punishable under section 1791(b)(1) of that title [section 1791(b)(1) of Title 18] as so redesignated, shall be assigned an offense level under chapter 2 of the sentencing guidelines that is

"(1) two levels greater than the level that would have been assigned had the offense not been committed in prison; and

"(2) in no event less than level 26.

"(d) If the sentencing guidelines are amended after the effective date of this section [probably means the date of enactment of this section, Nov. 18, 1988], the Sentencing Commission shall implement the instruction set forth in subsection (c) so as to achieve a comparable result."

Common Carrier Operation Under Influence of Alcohol or Drugs; Promulgation of Sentencing Guidelines. Section 6482(c) of Pub.L. 100-690 provided that:

"(1) Pursuant to its authority under section 994(p) of title 28, United States Code [subsec. (p) of this section], and section 21 of the Sentencing Act of 1987 [section 21 of Pub.L. 100-182, set out as a note under this section], the United States Sentencing Commission shall promulgate guidelines, or shall amend existing guidelines, to provide that

"(A) a defendant convicted of violating section 342 of title 18, United States Code [section 342 of Title 18, Crimes and Criminal Procedure], under circumstances in which death results, shall be assigned an offense level under chapter 2 of the sentencing guidelines that is not less than level 26; and

"(B) a defendant convicted of violating section 342 of title 18, United States Code [section 342 of Title 18, Crimes and Criminal Procedure], under circumstances in which serious bodily injury results, shall be assigned an offense level under chapter 2 of the sentencing guidelines that is not less than level 21.

"(2) If the sentencing guidelines are amended after the effective date of this section [probably means date of enactment of this section, Nov. 18, 1988], the Sentencing Commission shall implement the instruction set forth in paragraph (1) so as to achieve a comparable result."

Emergency Guidelines Promulgation Authority. Section 21 of Pub.L. 100-182 provided that:

"(a) In general.In the case of

"(1) an invalidated sentencing guideline;

"(2) the creation of a new offense or amendment of an existing offense; or

"(3) any other reason relating to the application of a previously established sentencing guideline, and determined by the United States Sentencing Commission to be urgent and compelling;

the Commission, by affirmative vote of at least four members of the Commission, and pursuant to its rules and regulations and consistent with all pertinent provisions of title 28 and title 18, United States Code, shall promulgate and distribute to all courts of the United States and to the United States Probation System a temporary guideline or amendment to an existing guideline, to remain in effect until and during the pendency of the next report to Congress under section 994(p) of title 28, United States Code [subsec. (p) of this section].

"(b) Expiration of authority.The authority of the Commission under paragraphs (1) and (2) of subsection (a) shall expire on November 1, 1989. The authority of the Commission to promulgate and distribute guidelines under paragraph (3) of subsection (a) shall expire on May 1, 1988."

Initial Sentencing Guidelines. Provisions directing that the United States Sentencing Commission submit to Congress within 30 months of Oct. 12, 1984, the initial sentencing guidelines promulgated pursuant to subsec. (a)(1) of this section, see section 235(a)(1)(B)(i) of Pub.L. 98-473, as amended, set out as a note under section 3551 of Title 18, Crimes and Criminal Procedure.

Effective Date of Sentencing Guidelines. For provisions directing that the sentencing guidelines promulgated pursuant to subsec. (a)(1) of this section not go into effect until the day after

(I) the United States Sentencing Commission has submitted the initial set of sentencing guidelines to the Congress, along with a report stating the reasons for the Commission's recommendations;

(II) the General Accounting Office has undertaken a study of the guidelines, and their potential impact in comparison with the operation of the existing sentencing and parole release system, and has, within one hundred and fifty days of submission of the guidelines, reported to the Congress the results of its study; and

(III) the Congress has had six months after the date described in subclause (I) in which to examine the guidelines and consider the reports, see section 235(a)(1)(B)(ii) of Pub.L. 98-473, set out as a note under section 3551 of Title 18, Crimes and Criminal Procedure.

General Accounting Office Study of Impact and Operation of Sentencing Guideline System. Section 236 of Pub.L. 98-473 provided that:

"(a)(1) Four years after the sentencing guidelines promulgated pursuant to section 994(a)(1) [subsec. (a)(1) of this section], and the provisions of section 3581, 3583, and 3624 of title 18, United States Code, go into effect, the General Accounting Office shall undertake a study of the guidelines in order to determine their impact and compare the guideline system with the operation of the previous sentencing and parole release system, and within six months of the undertaking of such study, report to the Congress the results of its study.

"(2) Within one month of the start of the study required under subsection (a), the United States Sentencing Commission shall submit a report to the General Accounting Office, all appropriate courts, the Department of Justice, and the Congress detailing the operation of the sentencing guideline system and discussing any problems with the system or reforms needed. The report shall include an evaluation of the impact of the sentencing guidelines on prosecutorial discretion, plea bargaining, disparities in sentencing, and the use of incarceration, and shall be issued by affirmative vote of a majority of the voting members of the Commission.

"(b) The Congress shall review the study submitted pursuant to subsection (a) in order to determine

"(1) whether the sentencing guideline system has been effective;

"(2) whether any changes should be made in the sentencing guideline system; and

"(3) whether the parole system should be reinstated in some form and the life of the Parole Commission extended."

Study of Sentencing Guidelines. Section 236 of Pub.L. 98-473 provided that:

"(a)(1) Four years after the sentencing guidelines promulgated pursuant to section 994(a)(1) [subsec. (a)(1) of this section], and the provisions of sections 3581, 3583, and 3624 of title 18, United States Code, go into effect, the General Accounting Office shall undertake a study of the guidelines in order to determine their impact and compare the guidelines system with the operation of the previous sentencing and parole release system, and, within six months of the undertaking of such study, report to the Congress the results of its study.

"(2) Within one month of the start of the study required under subsection (a), the United States Sentencing Commission shall submit a report to the General Accounting Office, all appropriate courts, the Department of Justice, and the Congress detailing the operation of the sentencing guideline system and discussing any problems with the system or reforms needed. The report shall include an evaluation of the impact of the sentencing guidelines on prosecutorial discretion, plea bargaining, disparities in sentencing, and the use of incarceration, and shall be issued by affirmative vote of a majority of the voting members of the Commission.

"(b) The Congress shall review the study submitted pursuant to subsection (a) in order to determine

"(1) whether the sentencing guideline system has been effective;

"(2) whether any changes should be made in the sentencing guideline system; and

"(3) whether the parole system should be reinstated in some form and the life of the Parole Commission extended."

995. Powers of the Commission

(a) The Commission, by vote of a majority of the members present and voting, shall have the power to

(1) establish general policies and promulgate such rules and regulations for the Commission as are necessary to carry out the purposes of this chapter;

(2) appoint and fix the salary and duties of the Staff Director of the Sentencing Commission, who shall serve at the discretion of the Commission and who shall be compensated at a rate not to exceed the highest rate now or hereafter prescribed for Level 6 of the Senior Executive Service Schedule (5 U.S.C. 5382);

(3) deny, revise, or ratify any request for regular, supplemental, or deficiency appropriations prior to any submission of such request to the Office of Management and Budget by the Chair;

(4) procure for the Commission temporary and intermittent services to the same extent as is authorized by section 3109(b) of title 5, United States Code;

(5) utilize, with their consent, the services, equipment, personnel, information, and facilities of other Federal, State, local, and private agencies and instrumentalities with or without reimbursement therefor;

(6) without regard to 31 U.S.C. 3324, enter into and perform such contracts, leases, cooperative agreements, and other transactions as may be necessary in the conduct of the functions of the Commission, with any public agency, or with any person, firm, association, corporation, educational institution, or nonprofit organization;

(7) accept and employ, in carrying out the provisions of this title, voluntary and uncompensated services, notwithstanding the provisions of 31 U.S.C. 1342, however, individuals providing such services shall not be considered Federal employees except for purposes of chapter 81 of title 5, United States Code, with respect to job-incurred disability and title 28, United States Code, with respect to tort claims;

(8) request such information, data, and reports from any Federal agency or judicial officer as the Commission may from time to time require and as may be produced consistent with other law;

(9) monitor the performance of probation officers with regard to sentencing recommendations, including application of the Sentencing Commission guidelines and policy statements;

(10) issue instructions to probation officers concerning the application of Commission guidelines and policy statements;

(11) arrange with the head of any other Federal agency for the performance by such agency of any function of the Commission, with or without reimbursement;

(12) establish a research and development program within the Commission for the purpose of

(A) serving as a clearinghouse and information center for the collection, preparation, and dissemination of information on Federal sentencing practices; and

(B) assisting and serving in a consulting capacity to Federal courts, departments, and agencies in the development, maintenance, and coordination of sound sentencing practices;

(13) collect systematically the data obtained from studies, research, and the empirical experience of public and private agencies concerning the sentencing process;

(14) publish data concerning the sentencing process;

(15) collect systematically and disseminate information concerning sentences actually imposed, and the relationship of such sentences to the factors set forth in section 3553(a) of title 18, United States Code;

(16) collect systematically and disseminate information regarding effectiveness of sentences imposed;

(17) devise and conduct, in various geographical locations, seminars and workshops providing continuing studies for persons engaged in the sentencing field;

(18) devise and conduct periodic training programs of instruction in sentencing techniques for judicial and probation personnel and other persons connected with the sentencing process;

(19) study the feasibility of developing guidelines for the disposition of juvenile delinquents;

(20) make recommendations to Congress concerning modification or enactment of statutes relating to sentencing, penal, and correctional matters that the Commission finds to be necessary and advisable to carry out an effective, humane and rational sentencing policy;

(21) hold hearings and call witnesses that might assist the Commission in the exercise of its powers or duties;

(22) perform such other functions as are required to permit Federal courts to meet their responsibilities under section 3553(a) of title 18, United States Code, and to permit others involved in the Federal criminal justice system to meet their related responsibilities;

(23) retain private attorneys to provide legal advice to the Commission in the conduct of its work, or to appear for or represent the Commission in any case in which the Commission is authorized by law to represent itself, or in which the Commission is representing itself with the consent of the Department of Justice; and the Commission may in its discretion pay reasonable attorney's fees to private attorneys employed by it out of its appropriated funds. When serving as officers or employees of the United States, such private attorneys shall be considered special government employees as defined in section 202(a) of title 18; and

(24) grant incentive awards to its employees pursuant to chapter 45 of title 5, United States Code.

(b) The Commission shall have such other powers and duties and shall perform such other functions as may be necessary to carry out the purposes of this chapter, and may delegate to any member or designated person such powers as may be appropriate other than the power to establish general policy statements and guidelines pursuant to section 994(a)(1) and (2), the issuance of general policies and promulgation of rules and regulations pursuant to subsection (a)(1) of this section, and the decisions as to the factors to be considered in establishment of categories of offenses and offenders pursuant to section 994(b). The Commission shall, with respect to its activities under subsections (a)(9), (a)(10), (a)(11), (a)(12), (a)(13), (a)(14), (a)(15), (a)(16), (a)(17), and (a)(18), to the extent practicable, utilize existing resources of the Administrative Office of the United States Courts and the Federal Judicial Center for the purpose of avoiding unnecessary duplication.

(c) Upon the request of the Commission, each Federal agency is authorized and directed to make its services, equipment, personnel, facilities, and information available to the greatest practicable extent to the Commission in the execution of its functions.

(d) A simple majority of the membership then serving shall constitute a quorum for the conduct of business. Other than for the promulgation of guidelines and policy statements pursuant to section 994, the Commission may exercise its powers and fulfill its duties by the vote of a simple majority of the members present.

(e) Except as otherwise provided by law, the Commission shall maintain and make available for public inspection a record of the final vote of each member on any action taken by it.

(Added Pub.L. 98-473, Title II, 217(a), Oct. 12, 1984, 98 Stat. 2024; amended Pub.L. 100-690, Title VII, 7104, 7105, 7106(b), Nov. 18, 1988, 102 Stat. 4418; Pub.L. 101-650, Title III, 325(b)(5), Dec. 1, 1990, 104 Stat. 5121; Pub.L. 103-322, Title XXVIII, 280005(c)(1), Sept. 13, 1994, 108 Stat. .)

EDITORIAL NOTES

References in Text. The provisions of title 28, United States Code, with respect to tort claims, referred to in subsec. (a)(7), are classified generally to section 1346(b) and chapter 171 (section 2671 et seq.) of this title.

Effective Date. Section effective Oct. 12, 1984, see section 235(a)(1)(B)(i) of Pub.L. 98-473, set out as a note under section 3551 of Title 18, Crimes and Criminal Procedure.

996. Director and staff

(a) The Staff Director shall supervise the activities of persons employed by the Commission and perform other duties assigned to the Staff Director by the Commission.

(b) The Staff Director shall, subject to the approval of the Commission, appoint such officers and employees as are necessary in the execution of the functions of the Commission. The officers and employees of the Commission shall be exempt from the provisions of part III of title 5, United States Code, except the following chapters: 45 (Incentive Awards), 81 (Compensation for Work Injuries), 83 (Retirement), 85 (Unemployment Compensation), 87 (Life Insurance), and 89 (Health Insurance).

(Added Pub.L. 98-473, Title II, 217(a), Oct. 12, 1984, 98 Stat. 2026, and amended Pub.L. 100-690, Title VII, 7106(c), Nov. 18, 1988, 102 Stat. 4418; Pub.L. 101-650, Title III, 325(b)(6), Dec. 1, 1990, 104 Stat. 5121; Pub.L. 103-322, Title XXVIII, 280005(c)(5), Sept. 13, 1994, 108 Stat. .)

EDITORIAL NOTES

Effective Date. Section effective Oct. 12, 1984, see section 235(a)(1)(B)(i) of Pub.L. 98-473, set out as a note under section 3551 of Title 18, Crimes and Criminal Procedure.

997. Annual report

The Commission shall report annually to the Judicial Conference of the United States, the Congress, and the President of the United States on the activities of the Commission.

(Added Pub.L. 98-473, Title II, 217(a), Oct. 12, 1984, 98 Stat. 2026.)

EDITORIAL NOTES

Effective Date. Section effective Oct. 12, 1984, see section 235(a)(1)(B)(i) of Pub.L. 98-473, set out as a note under section 3551 of Title 18, Crimes and Criminal Procedure.

998. Definitions

As used in this chapter

(a) "Commission" means the United States Sentencing Commission;

(b) "Commissioner" means a member of the United States Sentencing Commission;

(c) "guidelines" means the guidelines promulgated by the Commission pursuant to section 994(a) of this title; and

(d) "rules and regulations" means rules and regulations promulgated by the Commission pursuant to section 995 of this title.

(Added Pub.L. 98-473, Title II, 217(a), Oct. 12, 1984, 98 Stat. 2026.)

EDITORIAL NOTES

Effective Date. Section effective Oct. 12, 1984, see section 235(a)(1)(B)(i) of Pub.L. 98-473, set out as a note under section 3551 of Title 18, Crimes and Criminal Procedure.


United States Sentencing Commission