CHAPTER FIVE - DETERMINING THE SENTENCEIntroductory Commentary
For certain categories of offenses and offenders, the guidelines
permit the court to impose either imprisonment or some other
sanction or combination of sanctions. In determining the type of
sentence to impose, the sentencing judge should consider the nature
and seriousness of the conduct, the statutory purposes of
sentencing, and the pertinent offender characteristics. A sentence
is within the guidelines if it complies with each applicable
section of this chapter. The court should impose a sentence
sufficient, but not greater than necessary, to comply with the
statutory purposes of sentencing. 18 U.S.C. § 3553(a).
Historical Note: Effective November 1, 1987.
PART A - SENTENCING TABLE
The Sentencing Table used to determine the guideline range follows:
Criminal
History Category (Criminal History Points)
Offense
Level
I
(0 or 1)
II
(2 or 3)
III
(4, 5, 6)
IV
(7, 8, 9)
V
(10, 11, 12)
VI
(13 or more)
Zone A
1
0-6
0-6
0-6
0-6
0-6
0-6
2
0-6
0-6
0-6
0-6
0-6
1-7
3
0-6
0-6
0-6
0-6
2-8
3-9
4
0-6
0-6
0-6
2-8
4-10
6-12
5
0-6
0-6
1-7
4-10
6-12
9-15
6
0-6
1-7
2-8
6-12
9-15
12-18
7
0-6
2-8
4-10
8-14
12-18
15-21
8
0-6
4-10
6-12
10-16
15-21
18-24
Zone
B
9
4-10
6-12
8-14
12-18
18-24
21-27
10
6-12
8-14
10-16
15-21
21-27
24-30
Zone
C
11
8-14
10-16
12-18
18-24
24-30
27-33
12
10-16
12-18
15-21
21-27
27-33
30-37
Zone
D
13
12-18
15-21
18-24
24-30
30-37
33-41
14
15-21
18-24
21-27
27-33
33-41
37-46
15
18-24
21-27
24-30
30-37
37-46
41-51
16
21-27
24-30
27-33
33-41
41-51
46-57
17
24-30
27-33
30-37
37-46
46-57
51-63
18
27-33
30-37
33-41
41-51
51-63
57-71
19
30-37
33-41
37-46
46-57
57-71
63-78
20
33-41
37-46
41-51
51-63
63-78
70-87
21
37-46
41-51
46-57
57-71
70-87
77-96
22
41-51
46-57
51-63
63-78
77-96
84-105
23
46-57
51-63
57-71
70-87
84-105
92-115
24
51-63
57-71
63-78
77-96
92-115
100-125
25
57-71
63-78
70-87
84-105
100-125
110-137
26
63-78
70-87
78-97
92-115
110-137
120-150
27
70-87
78-97
87-108
100-125
120-150
130-162
28
78-97
87-108
97-121
110-137
130-162
140-175
29
87-108
97-121
108-135
121-151
140-175
151-188
30
97-121
108-135
121-151
135-168
151-188
168-210
31
108-135
121-151
135-168
151-188
168-210
188-235
32
121-151
135-168
151-188
168-210
188-235
210-262
33
135-168
151-188
168-210
188-235
210-262
235-293
34
151-188
168-210
188-235
210-262
235-293
262-327
35
168-210
188-235
210-262
235-293
262-327
292-365
36
188-235
210-262
235-293
262-327
292-365
324-405
37
210-262
235-293
262-327
292-365
324-405
360-life
38
235-293
262-327
292-365
324-405
360-life
360-life
39
262-327
292-365
324-405
360-life
360-life
360-life
40
292-365
324-405
360-life
360-life
360-life
360-life
41
324-405
360-life
360-life
360-life
360-life
360-life
42
360-life
360-life
360-life
360-life
360-life
360-life
43
life
life
life
life
life
life
Commentary to Sentencing Table
Application Notes:
1. The Offense Level (1-43) forms the vertical axis of the
Sentencing Table. The Criminal History Category (I-VI) forms the
horizontal axis of the Table. The intersection of the Offense Level
and Criminal History Category displays the Guideline Range in
months of imprisonment. "Life" means life imprisonment. For
example, the guideline range applicable to a defendant with an
Offense Level of 15 and a Criminal History Category of III is 24-30
months of imprisonment.
2. In rare cases, a total offense level of less than 1 or more than
43 may result from application of the guidelines. A total offense
level of less than 1 is to be treated as an offense level of 1. An
offense level of more than 43 is to be treated as an offense level
of 43.
3. The Criminal History Category is determined by the total
criminal history points from Chapter Four, Part A, except as
provided in §§4B1.1 (Career Offender) and 4B1.4 (Armed Career
Criminal). The total criminal history points associated with each
Criminal History Category are shown under each Criminal History
Category in the Sentencing Table.
Historical Note: Effective November 1, 1987. Amended effective
November 1, 1989 (see Appendix C, amendment 270); November 1, 1991
(see Appendix C, amendment 418); November 1, 1992 (see Appendix C,
amendment 462).
PART B - PROBATION
Introductory Commentary
The Comprehensive Crime Control Act of 1984 makes probation a
sentence in and of itself. 18 U.S.C. § 3561. Probation may be used
as an alternative to incarceration, provided that the terms and
conditions of probation can be fashioned so as to meet fully the
statutory purposes of sentencing, including promoting respect for
law, providing just punishment for the offense, achieving general
deterrence, and protecting the public from further crimes by the
defendant.
Historical Note: Effective November 1, 1987.
§5B1.1. Imposition of a Term of Probation
(a) Subject to the statutory restrictions in subsection (b) below,
a sentence of probation is authorized if:
(1) the applicable guideline range is in Zone A of the Sentencing
Table; or
(2) the applicable guideline range is in Zone B of the Sentencing
Table and the court imposes a condition or combination of
conditions requiring intermittent confinement, community
confinement, or home detention as provided in subsection (c)(3) of
§5C1.1 (Imposition of a Term of Imprisonment).
(b) A sentence of probation may not be imposed in the event:
(1) the offense of conviction is a Class A or B felony, 18 U.S.C.
§ 3561(a)(1);
(2) the offense of conviction expressly precludes probation as a
sentence, 18 U.S.C. § 3561(a)(2);
(3) the defendant is sentenced at the same time to a sentence of
imprisonment for the same or a different offense, 18 U.S.C.
§ 3561(a)(3).
Commentary
Application Notes:
1. Except where prohibited by statute or by the guideline
applicable to the offense in Chapter Two, the guidelines authorize,
but do not require, a sentence of probation in the following
circumstances:
(a) Where the applicable guideline range is in Zone A of the
Sentencing Table (i.e., the minimum term of imprisonment specified
in the applicable guideline range is zero months). In such cases,
a condition requiring a period of community confinement, home
detention, or intermittent confinement may be imposed but is not
required.
(b) Where the applicable guideline range is in Zone B of the
Sentencing Table (i.e., the minimum term of imprisonment specified
in the applicable guideline range is at least one but not more than
six months). In such cases, the court may impose probation only if
it imposes a condition or combination of conditions requiring a
period of community confinement, home detention, or intermittent
confinement sufficient to satisfy the minimum term of imprisonment
specified in the guideline range. For example, where the offense
level is 7 and the criminal history category is II, the guideline
range from the Sentencing Table is 2-8 months. In such a case, the
court may impose a sentence of probation only if it imposes a
condition or conditions requiring at least two months of community
confinement, home detention, or intermittent confinement, or a
combination of community confinement, home detention, and
intermittent confinement totaling at least two months.
2. Where the applicable guideline range is in Zone C or D of the
Sentencing Table (i.e., the minimum term of imprisonment specified
in the applicable guideline range is eight months or more), the
guidelines do not authorize a sentence of probation. See §5C1.1
(Imposition of a Term of Imprisonment).
Background: This section provides for the imposition of a sentence
of probation. The court may sentence a defendant to a term of
probation in any case unless (1) prohibited by statute, or (2)
where a term of imprisonment is required under §5C1.1 (Imposition
of a Term of Imprisonment). Under 18 U.S.C. § 3561(a)(3), the
imposition of a sentence of probation is prohibited where the
defendant is sentenced at the same time to a sentence of
imprisonment for the same or a different offense. Although this
provision has effectively abolished the use of "split sentences"
imposable pursuant to the former 18 U.S.C. § 3651, the drafters of
the Sentencing Reform Act noted that the functional equivalent of
the split sentence could be "achieved by a more direct and
logically consistent route" by providing that a defendant serve a
term of imprisonment followed by a period of supervised release.
(S. Rep. No. 225, 98th Cong., 1st Sess. 89 (1983)). Section
5B1.1(a)(2) provides a transition between the circumstances under
which a "straight" probationary term is authorized and those where
probation is prohibited.
Historical Note: Effective November 1, 1987. Amended effective
November 1, 1989 (see Appendix C, amendment 302); November 1, 1992
(see Appendix C, amendment 462).
§5B1.2. Term of Probation
(a) When probation is imposed, the term shall be:
(1) at least one year but not more than five years if the offense
level is 6 or greater;
(2) no more than three years in any other case.
Commentary
Background: This section governs the length of a term of probation.
Subject to statutory restrictions, the guidelines provide that a
term of probation may not exceed three years if the offense level
is less than 6. If a defendant has an offense level of 6 or
greater, the guidelines provide that a term of probation be at
least one year but not more than five years. Although some
distinction in the length of a term of probation is warranted based
on the circumstances of the case, a term of probation may also be
used to enforce conditions such as fine or restitution payments, or
attendance in a program of treatment such as drug rehabilitation.
Often, it may not be possible to determine the amount of time
required for the satisfaction of such payments or programs in
advance. This issue has been resolved by setting forth two broad
ranges for the duration of a term of probation depending upon the
offense level. Within the guidelines set forth in this section, the
determination of the length of a term of probation is within the
discretion of the sentencing judge.
Historical Note: Effective November 1, 1987.
§5B1.3. Conditions of Probation
(a) Mandatory Conditions--
(1) for any offense, the defendant shall not commit another
federal, state or local offense (see 18 U.S.C. § 3563(a));
(2) for a felony, the defendant shall (A) make restitution, (B)
give notice to victims of the offense pursuant to 18 U.S.C. § 3555,
or (C) reside, or refrain from residing, in a specified place or
area, unless the court finds on the record that extraordinary
circumstances exist that would make such a condition plainly
unreasonable, in which event the court shall impose one or more of
the discretionary conditions set forth under 18 U.S.C. § 3563(b)
(see 18 U.S.C. § 3563(a)(2));
Note: Section 3563(a)(2) of Title 18, United States Code, provides
that, absent unusual circumstances, a defendant convicted of a
felony shall abide by at least one of the conditions set forth in
18 U.S.C. § 3563(b)(2), (b)(3), and (b)(13). Before the enactment
of the Antiterrorism and Effective Death Penalty Act of 1996, those
conditions were a fine ((b)(2)), an order of restitution ((b)(3)),
and community service ((b)(13)). Whether or not the change was
intended, the Act deleted the fine condition and renumbered the
restitution and community service conditions in 18 U.S.C. §
3563(b), but failed to make a corresponding change in the
referenced paragraphs under 18 U.S.C. § 3563(a)(2). Accordingly,
the conditions now referenced are restitution ((b)(2)), notice to
victims pursuant to 18 U.S.C. § 3555 ((b)(3)), and an order that
the defendant reside, or refrain from residing, in a specified
place or area ((b)(13)).
(3) for any offense, the defendant shall not unlawfully possess a
controlled substance (see 18 U.S.C. § 3563(a));
(4) for a domestic violence crime as defined in 18 U.S.C. § 3561(b)
by a defendant convicted of such an offense for the first time, the
defendant shall attend a public, private, or non-profit offender
rehabilitation program that has been approved by the court, in
consultation with a State Coalition Against Domestic Violence or
other appropriate experts, if an approved program is available
within a 50-mile radius of the legal residence of the defendant
(see 18 U.S.C. § 3563(a));
(5) for any offense, the defendant shall refrain from any unlawful
use of a controlled substance and submit to one drug test within 15
days of release on probation and at least two periodic drug tests
thereafter (as determined by the court) for use of a controlled
substance, but the condition stated in this paragraph may be
ameliorated or suspended by the court for any individual defendant
if the defendant’s presentence report or other reliable information
indicates a low risk of future substance abuse by the defendant
(see 18 U.S.C. § 3563(a));
(6) the defendant shall (A) make restitution in accordance with
18 U.S.C. §§ 2248, 2259, 2264, 2327, 3663, 3663A, and 3664; and (B)
pay the assessment imposed in accordance with 18 U.S.C. § 3013;
(7) the defendant shall notify the court of any material change in
the defendant’s economic circumstances that might affect the
defendant’s ability to pay restitution, fines, or special
assessments (see 18 U.S.C. § 3563(a));
(8) if the court has imposed a fine, the defendant shall pay the
fine or adhere to a court-established payment schedule (see 18
U.S.C. § 3563(a));
(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;
(10) the defendant shall submit to the collection of a DNA sample
from the defendant at the direction of the United States Probation
Office if the collection of such a sample is authorized pursuant to
section 3 of the DNA Analysis Backlog Elimination Act of 2000 (42
U.S.C. § 14135a).
(b) The court may impose other conditions of probation to the
extent that such conditions (1) are reasonably related to (A) the
nature and circumstances of the offense and the history and
characteristics of the defendant; (B) the need for the sentence
imposed to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense; (C) the need for the sentence imposed to afford adequate
deterrence to criminal conduct; (D) the need to protect the public
from further crimes of the defendant; and (E) the need to provide
the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective
manner; and (2) involve only such deprivations of liberty or
property as are reasonably necessary for the purposes of sentencing
indicated in 18 U.S.C. § 3553(a) (see 18 U.S.C. § 3563(b)).
(c) (Policy Statement) The following "standard" conditions are
recommended for probation. Several of the conditions are expansions
of the conditions required by statute:
(1) the defendant shall not leave the judicial district or other
specified geographic area without the permission of the court or
probation officer;
(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;
(14) the defendant shall pay the special assessment imposed or
adhere to a court-ordered installment schedule for the payment of
the special assessment.
(d) (Policy Statement) The following "special" conditions of
probation are recommended in the circumstances described and, in
addition, may otherwise be appropriate in particular cases:
(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.
(2) Debt Obligations
If an installment schedule of payment of restitution or a fine is
imposed -- a condition prohibiting the defendant from incurring new
credit charges or opening additional lines of credit without
approval of the probation officer unless the defendant is in
compliance with the payment schedule.
(3) Access to Financial Information
If the court imposes an order of restitution, forfeiture, or notice
to victims, or orders the defendant to pay a fine -- a condition
requiring the defendant to provide the probation officer access to
any requested financial information.
(4) Substance Abuse Program Participation
If the court has reason to believe that the defendant is an abuser
of narcotics, other controlled substances or alcohol -- a condition
requiring the defendant to participate in a program approved by the
United States Probation Office for substance abuse, which program
may include testing to determine whether the defendant has reverted
to the use of drugs or alcohol.
(5) Mental Health Program Participation
If the court has reason to believe that the defendant is in need of
psychological or psychiatric treatment -- a condition requiring
that the defendant participate in a mental health program approved by the
United States Probation Office.
(6) Deportation
If (A) the defendant and the United States entered into a
stipulation of deportation pursuant to section 238(c)(5) of the
Immigration and Nationality Act (8 U.S.C. § 1228(c)(5)*); or (B) in
the absence of a stipulation of deportation, if, after notice and
hearing pursuant to such section, the Attorney General demonstrates
by clear and convincing evidence that the alien is deportable -- a
condition ordering deportation by a United States district court or
a United States magistrate judge.
* So in original. Probably should be 8 U.S.C. § 1228(d)(5).
(7) Sex Offenses
If the instant offense of conviction is a sex offense, as defined
in Application Note 1 of the Commentary to §5D1.2 (Term of
Supervised Release) --
(A) A condition requiring the defendant to participate in a program
approved by the United States Probation Office for the treatment
and monitoring of sex offenders.
(B) A condition limiting the use of a computer or an interactive
computer service in cases in which the defendant used such items.
(C) A condition requiring the defendant to submit to a search, at
any time, with or without a warrant, and by any law enforcement or
probation officer, of the defendant’s person and any property,
house, residence, vehicle, papers, computer, other electronic
communication or data storage devices or media, and effects, upon
reasonable suspicion concerning a violation of a condition of
probation or unlawful conduct by the defendant, or by any probation
officer in the lawful discharge of the officer’s supervision
functions.
(e) Additional Conditions (Policy Statement)
The following "special conditions" may be appropriate on a case-by-case basis:
(1) Community Confinement
Residence in a community treatment center, halfway house or similar
facility may be imposed as a condition of probation.
(2) Home Detention
Home detention may be imposed as a condition of probation but only
as a substitute for imprisonment. See §5F1.2 (Home Detention).
(3) Community Service
Community service may be imposed as a condition of probation. See §5F1.3 (Community Service).
(4) Occupational Restrictions
Occupational restrictions may be imposed as a condition of
probation. See §5F1.5 (Occupational Restrictions).
(5) Curfew
A condition imposing a curfew may be imposed if the court concludes
that restricting the defendant to his place of residence during
evening and nighttime hours is necessary to provide just punishment
for the offense, to protect the public from crimes that the
defendant might commit during those hours, or to assist in the
rehabilitation of the defendant. Electronic monitoring may be used
as a means of surveillance to ensure compliance with a curfew
order.
(6) Intermittent Confinement
Intermittent confinement (custody for intervals of time) may be
ordered as a condition of probation during the first year of
probation.
Commentary
Application Note:
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.)
Historical Note: Effective November 1, 1987. Amended effective
November 1, 1989 (see Appendix C, amendments 273, 274, and 302);
November 1, 1997 (see Appendix C, amendment 569); November 1, 1998
(see Appendix C, amendment 584) ; November 1, 2000 (see Appendix C,
amendment 605); November 1, 2001 (see Appendix C, amendment 615);
November 1, 2002 (see Appendix C, amendment 644); November 1, 2004
(see Appendix C, amendment 664); November 1, 2007 (see Appendix C,
amendments 701 and 711) .
§5B1.4. [Deleted]
Historical Note: Effective November 1, 1987. Amended effective
November 1, 1989 (see Appendix C, amendments 271, 272, and 302),
was deleted by consolidation with §§5B1.3 and 5D1.3 effective
November 1, 1997 (see Appendix C, amendment 569).
PART C - IMPRISONMENT
§5C1.1. Imposition of a Term of Imprisonment
(a) A sentence conforms with the guidelines for imprisonment if it
is within the minimum and maximum terms of the applicable guideline
range.
(b) If the applicable guideline range is in Zone A of the
Sentencing Table, a sentence of imprisonment is not required,
unless the applicable guideline in Chapter Two expressly requires
such a term.
(c) If the applicable guideline range is in Zone B of the
Sentencing Table, the minimum term may be satisfied by --
(1) a sentence of imprisonment; or
(2) a sentence of imprisonment that includes a term of supervised
release with a condition that substitutes community confinement* or
home detention according to the schedule in subsection (e),
provided that at least one month is satisfied by imprisonment; or
(3) a sentence of probation that includes a condition or
combination of conditions that substitute intermittent confinement,
community confinement, or home detention for imprisonment according
to the schedule in subsection (e).
(d) If the applicable guideline range is in Zone C of the
Sentencing Table, the minimum term may be satisfied by --
(1) a sentence of imprisonment; or
(2) a sentence of imprisonment that includes a term of supervised
release with a condition that substitutes community confinement* or
home detention according to the schedule in subsection (e),
provided that at least one-half of the minimum term is satisfied by
imprisonment.
(e) Schedule of Substitute Punishments:
(1) One day of intermittent confinement in prison or jail for one
day of imprisonment (each 24 hours of confinement is credited as
one day of intermittent confinement, provided, however, that one
day shall be credited for any calendar day during which the
defendant is employed in the community and confined during all
remaining hours);
(2) One day of community confinement (residence in a community
treatment center, halfway house, or similar residential facility)
for one day of imprisonment;
(3) One day of home detention for one day of imprisonment.
(f) If the applicable guideline range is in Zone D of the
Sentencing Table, the minimum term shall be satisfied by a sentence
of imprisonment.
Commentary
Application Notes:
1. Subsection (a) provides that a sentence conforms with the
guidelines for imprisonment if it is within the minimum and maximum
terms of the applicable guideline range specified in the Sentencing
Table in Part A of this Chapter. For example, if the defendant has
an Offense Level of 20 and a Criminal History Category of I, the
applicable guideline range is 33-41 months of imprisonment.
Therefore, a sentence of imprisonment of at least thirty-three
months, but not more than forty-one months, is within the
applicable guideline range.
2. Subsection (b) provides that where the applicable guideline
range is in Zone A of the Sentencing Table (i.e., the minimum term
of imprisonment specified in the applicable guideline range is zero
months), the court is not required to impose a sentence of
imprisonment unless a sentence of imprisonment or its equivalent is
specifically required by the guideline applicable to the offense.
Where imprisonment is not required, the court, for example, may
impose a sentence of probation. In some cases, a fine appropriately
may be imposed as the sole sanction.
3. Subsection (c) provides that where the applicable guideline
range is in Zone B of the Sentencing Table (i.e., the minimum term
of imprisonment specified in the applicable guideline range is at
least one but not more than six months), the court has three
options:
(A) It may impose a sentence of imprisonment.
(B) It may impose a sentence of probation provided that it includes
a condition of probation requiring a period of intermittent
confinement, community confinement, or home detention, or
combination of intermittent confinement, community confinement, and
home detention, sufficient to satisfy the minimum period of
imprisonment specified in the guideline range. For example, where
the guideline range is 4-10 months, a sentence of probation with a
condition requiring at least four months of intermittent
confinement, community confinement, or home detention would satisfy
the minimum term of imprisonment specified in the guideline range.
(C) Or, it may impose a sentence of imprisonment that includes a
term of supervised release with a condition that requires community
confinement* or home detention. In such case, at least one month
must be satisfied by actual imprisonment and the remainder of the
minimum term specified in the guideline range must be satisfied by
community confinement or home detention. For example, where the
guideline range is 4-10 months, a sentence of imprisonment of one month followed by a term of supervised release with a
condition requiring three months of community confinement or home
detention would satisfy the minimum term of imprisonment specified
in the guideline range.
The preceding examples illustrate sentences that satisfy the
minimum term of imprisonment required by the guideline range. The
court, of course, may impose a sentence at a higher point within
the applicable guideline range. For example, where the guideline
range is 4-10 months, both a sentence of probation with a condition
requiring six months of community confinement or home detention
(under subsection (c)(3)) and a sentence of two months imprisonment
followed by a term of supervised release with a condition requiring
four months of community confinement or home detention (under
subsection (c)(2)) would be within the guideline range.
4. Subsection (d) provides that where the applicable guideline
range is in Zone C of the Sentencing Table (i.e., the minimum term
specified in the applicable guideline range is eight, nine, or ten
months), the court has two options:
(A) It may impose a sentence of imprisonment.
(B) Or, it may impose a sentence of imprisonment that includes a
term of supervised release with a condition requiring community
confinement* or home detention. In such case, at least one-half of
the minimum term specified in the guideline range must be satisfied
by imprisonment, and the remainder of the minimum term specified in
the guideline range must be satisfied by community confinement or
home detention. For example, where the guideline range is 8-14
months, a sentence of four months imprisonment followed by a term
of supervised release with a condition requiring four months
community confinement or home detention would satisfy the minimum
term of imprisonment required by the guideline range.
The preceding example illustrates a sentence that satisfies the
minimum term of imprisonment required by the guideline range. The
court, of course, may impose a sentence at a higher point within
the guideline range. For example, where the guideline range is 8-14
months, both a sentence of four months imprisonment followed by a
term of supervised release with a condition requiring six months of
community confinement or home detention (under subsection (d)), and
a sentence of five months imprisonment followed by a term of
supervised release with a condition requiring four months of
community confinement or home detention (also under subsection (d))
would be within the guideline range.
5. Subsection (e) sets forth a schedule of imprisonment
substitutes.
6. There may be cases in which a departure from the guidelines by
substitution of a longer period of community confinement* than
otherwise authorized for an equivalent number of months of
imprisonment is warranted to accomplish a specific treatment
purpose (e.g., substitution of twelve months in an approved
residential drug treatment program for twelve months of
imprisonment). Such a substitution should be considered only in
cases where the defendant’s criminality is related to the treatment problem to be addressed and
there is a reasonable likelihood that successful completion of the
treatment program will eliminate that problem.
7. The use of substitutes for imprisonment as provided in
subsections (c) and (d) is not recommended for most defendants with
a criminal history category of III or above. Generally, such
defendants have failed to reform despite the use of such
alternatives.
8. Subsection (f) provides that, where the applicable guideline
range is in Zone D of the Sentencing Table (i.e., the minimum term
of imprisonment specified in the applicable guideline range is
twelve months or more), the minimum term must be satisfied by a
sentence of imprisonment without the use of any of the imprisonment
substitutes in subsection (e).
*Note: Section 3583(d) of title 18, United States Code, provides
that "[t]he court may order, as a further condition of supervised
release...any condition set forth as a discretionary condition of
probation in section 3563(b)(1) through (b)(10) and (b)(12) through
(b)(20), and any other condition it considers to be appropriate."
Subsection (b)(11) of section 3563 of title 18, United States Code,
is explicitly excluded as a condition of supervised release. Before
the enactment of the Antiterrorism and Effective Death Penalty Act
of 1996, the condition at 18 U.S.C. § 3563(b)(11) was intermittent
confinement. The Act deleted 18 U.S.C. § 3563(b)(2), authorizing
the payment of a fine as a condition of probation, and redesignated
the remaining conditions of probation set forth in 18 U.S.C. §
3563(b); intermittent confinement is now set forth at subsection
(b)(10), whereas subsection (b)(11) sets forth the condition of
residency at a community corrections facility. It would appear that
intermittent confinement now is authorized as a condition of
supervised release and that community confinement now is not
authorized as a condition of supervised release.
However, there is some question as to whether Congress intended
this result. Although the Antiterrorism and Effective Death Penalty
Act of 1996 redesignated the remaining paragraphs of section
3563(b), it failed to make the corresponding redesignations in 18
U.S.C. § 3583(d), regarding discretionary conditions of supervised
release.
Historical Note: Effective November 1, 1987. Amended effective
January 15, 1988 (see Appendix C, amendment 51); November 1, 1989
(see Appendix C, amendments 271, 275, and 302); November 1, 1992
(see Appendix C, amendment 462) ; November 1, 2002 (see Appendix C,
amendment 646).
§5C1.2. Limitation on Applicability of Statutory Minimum Sentences
in Certain Cases
(a) Except as provided in subsection (b), in the case of an offense
under 21 U.S.C. § 841, § 844, § 846, § 960, or § 963, the court
shall impose a sentence in accordance with the applicable
guidelines without regard to any statutory minimum sentence, if the
court finds that the defendant meets the criteria in 18 U.S.C.
§ 3553(f)(1)-(5) set forth below:
(1) the defendant does not have more than 1 criminal history point,
as determined under the sentencing guidelines before application of
subsection (b) of §4A1.3 (Departures Based on Inadequacy of
Criminal History Category);
(2) the defendant did not use violence or credible threats of
violence or possess a firearm or other dangerous weapon (or induce
another participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to
any person;
(4) the defendant was not an organizer, leader, manager, or
supervisor of others in the offense, as determined under the
sentencing guidelines and was not engaged in a continuing criminal
enterprise, as defined in 21 U.S.C. § 848; and
(5) not later than the time of the sentencing hearing, the
defendant has truthfully provided to the Government all information
and evidence the defendant has concerning the offense or offenses
that were part of the same course of conduct or of a common scheme
or plan, but the fact that the defendant has no relevant or useful
other information to provide or that the Government is already
aware of the information shall not preclude a determination by the
court that the defendant has complied with this requirement.
(b) In the case of a defendant (1) who meets the criteria set forth
in subsection (a); and (2) for whom the statutorily required
minimum sentence is at least five years, the offense level
applicable from Chapters Two (Offense Conduct) and Three
(Adjustments) shall be not less than level 17.
Commentary
Application Notes:
1. "More than 1 criminal history point, as determined under the
sentencing guidelines," as used in subsection (a)(1), means more
than one criminal history point as determined under §4A1.1
(Criminal History Category) before application of subsection (b) of
§4A1.3 (Departures Based on Inadequacy of Criminal History
Category).
2. "Dangerous weapon" and "firearm," as used in subsection (a)(2),
and "serious bodily injury," as used in subsection (a)(3), are
defined in the Commentary to §1B1.1 (Application Instructions).
3. "Offense," as used in subsection (a)(2)-(4), and "offense or
offenses that were part of the same course of conduct or of a
common scheme or plan," as used in subsection (a)(5), mean the
offense of conviction and all relevant conduct.
4. Consistent with §1B1.3 (Relevant Conduct), the term "defendant,"
as used in subsection (a)(2), limits the accountability of the
defendant to his own conduct and conduct that he aided or abetted,
counseled, commanded, induced, procured, or willfully caused.
5. "Organizer, leader, manager, or supervisor of others in the
offense, as determined under the sentencing guidelines," as used in
subsection (a)(4), means a defendant who receives an adjustment for
an aggravating role under §3B1.1 (Aggravating Role).
6. "Engaged in a continuing criminal enterprise," as used in
subsection (a)(4), is defined in 21 U.S.C. § 848(c). As a practical
matter, it should not be necessary to apply this prong of
subsection (a)(4) because (i) this section does not apply to a
conviction under 21 U.S.C. § 848, and (ii) any defendant who "engaged in a continuing criminal
enterprise" but is convicted of an offense to which this section applies will be an "organizer,
leader, manager, or supervisor of others in the offense."
7. Information disclosed by the defendant with respect to
subsection (a)(5) may be considered in determining the applicable
guideline range, except where the use of such information is
restricted under the provisions of §1B1.8 (Use of Certain
Information). That is, subsection (a)(5) does not provide an
independent basis for restricting the use of information disclosed
by the defendant.
8. Under 18 U.S.C. § 3553(f), prior to its determination, the court
shall afford the government an opportunity to make a
recommendation. See also Fed. R. Crim. P. 32(c)(1), (3).
9. A defendant who meets the criteria under this section is exempt
from any otherwise applicable statutory minimum sentence of
imprisonment and statutory minimum term of supervised release.
Background: This section sets forth the relevant provisions of 18
U.S.C. § 3553(f), as added by section 80001(a) of the Violent Crime
Control and Law Enforcement Act of 1994, which limit the
applicability of statutory minimum sentences in certain cases.
Under the authority of section 80001(b) of that Act, the Commission
has promulgated application notes to provide guidance in the
application of 18 U.S.C. § 3553(f). See also H. Rep. No. 460, 103d
Cong., 2d Sess. 3 (1994) (expressing intent to foster greater
coordination between mandatory minimum sentencing and the
sentencing guideline system).
Historical Note: Effective September 23, 1994 (see Appendix C,
amendment 509). Amended effective November 1, 1995 (see Appendix C,
amendment 515); November 1, 1996 (see Appendix C, amendment 540);
November 1, 1997 (see Appendix C, amendment 570) ; November 1, 2001
(see Appendix C, amendment 624); October 27, 2003 (see Appendix C,
amendment 651); November 1, 2004 (see Appendix C, amendment 674).
PART D - SUPERVISED RELEASE
§5D1.1. Imposition of a Term of Supervised Release
(a) The court shall order a term of supervised release to follow
imprisonment when a sentence of imprisonment of more than one year
is imposed, or when required by statute.
(b) The court may order a term of supervised release to follow
imprisonment in any other case.
Commentary
Application Notes:
1. Under subsection (a), the court is required to impose a term of
supervised release to follow imprisonment if a sentence of
imprisonment of more than one year is imposed or if a term of
supervised release is required by a specific statute. The court may
depart from this guideline and not impose a term of supervised
release if it determines that supervised release is neither
required by statute nor required for any of the following reasons:
(1) to protect the public welfare; (2) to enforce a financial
condition; (3) to provide drug or alcohol treatment or testing; (4)
to assist the reintegration of the defendant into the community; or
(5) to accomplish any other sentencing purpose authorized by
statute.
2. Under subsection (b), the court may impose a term of supervised
release to follow a term of imprisonment of one year or less for
any of the reasons set forth in Application Note 1.
Historical Note: Effective November 1, 1987. Amended effective
November 1, 1989 (see Appendix C, amendment 302); November 1, 1995
(see Appendix C, amendment 529).
§5D1.2. Term of Supervised Release
(a) Except as provided in subsections (b) and (c), if a term of
supervised release is ordered, the length of the term shall be:
(1) At least three years but not more than five years for a
defendant convicted of a Class A or B felony.
(2) At least two years but not more than three years for a
defendant convicted of a Class C or D felony.
(3) One year for a defendant convicted of a Class E felony or a
Class A misdemeanor.
(b) Notwithstanding subdivisions (a)(1) through (3), the length of
the term of supervised release shall be not less than the minimum
term of years specified for the offense under subdivisions (a)(1) through (3) and may be up to
life, if the offense is—
(1) any offense listed in 18 U.S.C. § 2332b(g)(5)(B), the
commission of which resulted in, or created a foreseeable risk of,
death or serious bodily injury to another person; or
(2) a sex offense.
(Policy Statement) If the instant offense of conviction is a sex
offense, however, the statutory maximum term of supervised release
is recommended.
(c) The term of supervised release imposed shall be not less than
any statutorily required term of supervised release.
Commentary
Application Notes:
1. Definitions.—For purposes of this guideline:
"Sex offense" means (A) an offense, perpetrated against a minor,
under (i) chapter 109A of title 18, United States Code; (ii)
chapter 109B of such title; (iii) chapter 110 of such title, not
including a recordkeeping offense; (iv) chapter 117 of such title,
not including transmitting information about a minor or filing a
factual statement about an alien individual; (v) an offense under
18 U.S.C. § 1201; or (vi) an offense under 18 U.S.C. § 1591; or (B)
an attempt or a conspiracy to commit any offense described in
subdivisions (A)(i) through (vi) of this note.
"Minor" means (A) an individual who had not attained the age of 18
years; (B) an individual, whether fictitious or not, who a law
enforcement officer represented to a participant (i) had not
attained the age of 18 years; and (ii) could be provided for the
purposes of engaging in sexually explicit conduct; or (C) an
undercover law enforcement officer who represented to a participant
that the officer had not attained the age of 18 years.
2. Safety Valve Cases.—A defendant who qualifies under §5C1.2 (
Limitation on Applicability of Statutory Minimum Sentence in
Certain Cases) is not subject to any statutory minimum sentence of
supervised release. See 18 U.S.C. § 3553(f). In such a case, the
term of supervised release shall be determined under subsection
(a).
3. Substantial Assistance Cases.—Upon motion of the Government, a
defendant who has provided substantial assistance in the
investigation or prosecution of another person who has committed an
offense may be sentenced to a term of supervised release that is
less than any minimum required by statute or the guidelines. See 18
U.S.C. § 3553(e), §5K1.1 (Substantial Assistance to Authorities).
Background: This section specifies the length of a term of
supervised release that is to be imposed. Subsection (b) applies to
statutes, such as the Anti-Drug Abuse Act of 1986, that require
imposition of a specific minimum term of supervised release.
Historical Note: Effective November 1, 1987. Amended effective
January 15, 1988 (see Appendix C, amendment 52); November 1, 1989
(see Appendix C, amendment 302); November 1, 1995 (see Appendix C,
amendment 529); November 1, 1997 (see Appendix C, amendment 570) ;
November 1, 2001 (see Appendix C, amendment 615) ; November 1, 2002
(see Appendix C, amendments 637 and 646); November 1, 2004 (see
Appendix C, amendment 664); November 1, 2005 (see Appendix C,
amendment 679); November 1, 2007 (see Appendix C, amendment 701).
§5D1.3. Conditions of Supervised Release
(a) Mandatory Conditions--
(1) the defendant shall not commit another federal, state or local
offense (see 18 U.S.C. § 3583(d));
(2) the defendant shall not unlawfully possess a controlled
substance (see 18 U.S.C. § 3583(d));
(3) the defendant who is convicted for a domestic violence crime as
defined in 18 U.S.C. § 3561(b) for the first time shall attend a
public, private, or private non-profit offender rehabilitation
program that has been approved by the court, in consultation with
a State Coalition Against Domestic Violence or other appropriate
experts, if an approved program is available within a 50-mile
radius of the legal residence of the defendant (see 18 U.S.C. §
3583(d));
(4) the defendant shall refrain from any unlawful use of a
controlled substance and submit to one drug test within 15 days of
release on probation and at least two periodic drug tests
thereafter (as determined by the court) for use of a controlled
substance, but the condition stated in this paragraph may be
ameliorated or suspended by the court for any individual defendant
if the defendant’s presentence report or other reliable information
indicates a low risk of future substance abuse by the defendant
(see 18 U.S.C. § 3583(d));
(5) if a fine is imposed and has not been paid upon release to
supervised release, the defendant shall adhere to an installment
schedule to pay that fine (see 18 U.S.C. § 3624(e));
(6) the defendant shall (A) make restitution in accordance with 18
U.S.C. §§ 2248, 2259, 2264, 2327, 3663, 3663A, and 3664; and (B)
pay the assessment imposed in accordance with 18 U.S.C. § 3013;
(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;
(8) the defendant shall submit to the collection of a DNA sample
from the defendant at the direction of the United States Probation
Office if the collection of such a sample is authorized pursuant to
section 3 of the DNA Analysis Backlog Elimination Act of 2000 (42
U.S.C. § 14135a).
(b) The court may impose other conditions of supervised release to
the extent that such conditions (1) are reasonably related to (A)
the nature and circumstances of the offense and the history and
characteristics of the defendant; (B) the need for the sentence
imposed to afford adequate deterrence to criminal conduct; (C) the
need to protect the public from further crimes of the defendant;
and (D) the need to provide the defendant with needed educational
or vocational training, medical care, or other correctional
treatment in the most effective manner; and (2) involve no greater
deprivation of liberty than is reasonably necessary for the
purposes set forth above and are consistent with any pertinent
policy statements issued by the Sentencing Commission.
(c) (Policy Statement) The following "standard" conditions are
recommended for supervised release. Several of the conditions are
expansions of the conditions required by statute:
(1) the defendant shall not leave the judicial district or other
specified geographic area without the permission of the court or
probation officer;
(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;
(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.
(d) (Policy Statement) The following "special" conditions of
supervised release are recommended in the circumstances described
and, in addition, may otherwise be appropriate in particular cases:
(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.
(2) Debt Obligations
If an installment schedule of payment of restitution or a fine is
imposed -- a condition prohibiting the defendant from incurring new
credit charges or opening additional lines of credit without
approval of the probation officer unless the defendant is in
compliance with the payment schedule.
(3) Access to Financial Information
If the court imposes an order of restitution, forfeiture, or notice
to victims, or orders the defendant to pay a fine -- a condition
requiring the defendant to provide the probation officer access to any requested
financial information.
(4) Substance Abuse Program Participation
If the court has reason to believe that the defendant is an abuser
of narcotics, other controlled substances or alcohol -- a condition
requiring the defendant to participate in a program approved by the
United States Probation Office for substance abuse, which program
may include testing to determine whether the defendant has reverted
to the use of drugs or alcohol.
(5) Mental Health Program Participation
If the court has reason to believe that the defendant is in need of
psychological or psychiatric treatment -- a condition requiring
that the defendant participate in a mental health program approved
by the United States Probation Office.
(6) Deportation
If (A) the defendant and the United States entered into a
stipulation of deportation pursuant to section 238(c)(5) of the
Immigration and Nationality Act (8 U.S.C. § 1228(c)(5)*); or (B) in
the absence of a stipulation of deportation, if, after notice and
hearing pursuant to such section, the Attorney General demonstrates
by clear and convincing evidence that the alien is deportable -- a
condition ordering deportation by a United States district court or
a United States magistrate judge.
* So in original. Probably should be 8 U.S.C. § 1228(d)(5).
(7) Sex Offenses
If the instant offense of conviction is a sex offense, as defined
in Application Note 1 of the Commentary to §5D1.2 (Term of
Supervised Release) --
(A) A condition requiring the defendant to participate in a program
approved by the United States Probation Office for the treatment
and monitoring of sex offenders.
(B) A condition limiting the use of a computer or an interactive
computer service in cases in which the defendant used such items.
(C) A condition requiring the defendant to submit to a search, at
any time, with or without a warrant, and by any law enforcement or
probation officer, of the defendant’s person and any property,
house, residence, vehicle, papers, computer, other electronic
communication or data storage devices or media, and effects upon
reasonable suspicion concerning a violation of a condition of
supervised release or unlawful conduct by the defendant, or by any
probation officer in the lawful discharge of the officer’s
supervision functions.
(e) Additional Conditions (Policy Statement)
The following "special conditions" may be appropriate on a case-by-case basis:
(1) Community Confinement*
Residence in a community treatment center, halfway house or similar
facility may be imposed as a condition of supervised release. See §5F1.1 (Community Confinement).
*Note: Section 3583(d) of title 18, United States Code, provides
that "[t]he court may order, as a further condition of supervised
release...any condition set forth as a discretionary condition of
probation in section 3563(b)(1) through (b)(10) and (b)(12) through
(b)(20), and any other condition it considers to be appropriate."
Subsection (b)(11) of section 3563 of title 18, United States Code,
is explicitly excluded as a condition of supervised release. Before
the enactment of the Antiterrorism and Effective Death Penalty Act
of 1996, the condition at 18 U.S.C. § 3563(b)(11) was intermittent
confinement. The Act deleted 18 U.S.C. § 3563(b)(2), authorizing
the payment of a fine as a condition of probation, and redesignated
the remaining conditions of probation set forth in 18 U.S.C. §
3563(b); intermittent confinement is now set forth at subsection
(b)(10), whereas subsection (b)(11) sets forth the condition of
residency at a community corrections facility. It would appear that
intermittent confinement now is authorized as a condition of
supervised release and that community confinement now is not
authorized as a condition of supervised release.
However, there is some question as to whether Congress intended
this result. Although the Antiterrorism and Effective Death Penalty
Act of 1996 redesignated the remaining paragraphs of section
3563(b), it failed to make the corresponding redesignations in 18
U.S.C. § 3583(d), regarding discretionary conditions of supervised
release.
(2) Home Detention
Home detention may be imposed as a condition of supervised release,
but only as a substitute for imprisonment. See §5F1.2 (Home
Detention).
(3) Community Service
Community service may be imposed as a condition of supervised
release. See §5F1.3 (Community Service).
(4) Occupational Restrictions
Occupational restrictions may be imposed as a condition of
supervised release. See §5F1.5 (Occupational Restrictions).
(5) Curfew
A condition imposing a curfew may be imposed if the court concludes
that restricting the defendant to his place of residence during
evening and nighttime hours is necessary to protect the public from
crimes that the defendant might commit during those hours, or to assist in the
rehabilitation of the defendant. Electronic monitoring may be used
as a means of surveillance to ensure compliance with a curfew
order.
Commentary
Application Note:
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.)
Historical Note: Effective November 1, 1987. Amended effective
November 1, 1989 (see Appendix C, amendments 276, 277, and 302);
November 1, 1997 (see Appendix C, amendment 569); November 1, 1998
(see Appendix C, amendment 584) ; November 1, 2000 (see Appendix C,
amendment 605); November 1, 2001 (see Appendix C, amendment 615);
November 1, 2002 (see Appendix C, amendments 644 and 646); November
1, 2004 (see Appendix C, amendment 664); November 1, 2007 (see
Appendix C, amendments 701and 711).
PART E - RESTITUTION, FINES, ASSESSMENTS, FORFEITURES
§5E1.1. Restitution
(a) In the case of an identifiable victim, the court shall --
(1) enter a restitution order for the full amount of the victim’s
loss, if such order is authorized under 18 U.S.C. § 1593, § 2248,
§ 2259, § 2264, § 2327, § 3663, or § 3663A , or 21 U.S.C. § 853(q)
; or
(2) impose a term of probation or supervised release with a
condition requiring restitution for the full amount of the victim’s
loss, if the offense is not an offense for which restitution is
authorized under 18 U.S.C. § 3663(a)(1) but otherwise meets the
criteria for an order of restitution under that section.
(b) Provided, that the provisions of subsection (a) do not apply --
(1) when full restitution has been made; or
(2) in the case of a restitution order under 18 U.S.C. § 3663; a
restitution order under 18 U.S.C. § 3663A that pertains to an
offense against property described in 18 U.S.C.
§ 3663A(c)(1)(A)(ii); or a condition of restitution imposed
pursuant to subsection (a)(2) above, to the extent the court finds,
from facts on the record, that (A) the number of identifiable
victims is so large as to make restitution impracticable; or (B)
determining complex issues of fact related to the cause or amount
of the victim’s losses would complicate or prolong the sentencing
process to a degree that the need to provide restitution to any
victim is outweighed by the burden on the sentencing process.
(c) If a defendant is ordered to make restitution to an
identifiable victim and to pay a fine, the court shall order that
any money paid by the defendant shall first be applied to satisfy
the order of restitution.
(d) In a case where there is no identifiable victim and the
defendant was convicted under 21 U.S.C. § 841, § 848(a), § 849, §
856, § 861, or § 863, the court, taking into consideration the
amount of public harm caused by the offense and other relevant
factors, shall order an amount of community restitution not to
exceed the fine imposed under §5E1.2.
(e) A restitution order may direct the defendant to make a single,
lump sum payment, partial payments at specified intervals, in-kind
payments, or a combination of payments at specified intervals and
in-kind payments. See 18 U.S.C. § 3664(f)(3)(A). An in-kind payment
may be in the form of (1) return of property; (2) replacement of
property; or (3) if the victim agrees, services rendered to the
victim or to a person or organization other than the victim. See
18 U.S.C. § 3664(f)(4).
(f) A restitution order may direct the defendant to make nominal
periodic payments if the court finds from facts on the record that
the economic circumstances of the defendant do not allow the
payment of any amount of a restitution order and do not allow for
the payment of the full amount of a restitution order in the
foreseeable future under any reasonable schedule of payments.
(g) Special Instruction
(1) This guideline applies only to a defendant convicted of an
offense committed on or after November 1, 1997. Notwithstanding the
provisions of §1B1.11 (Use of Guidelines Manual in Effect on Date
of Sentencing), use the former §5E1.1 (set forth in Appendix C,
amendment 571) in lieu of this guideline in any other case.
Commentary
Application Note:
1. The court shall not order community restitution under subsection
(d) if it appears likely that such an award would interfere with a
forfeiture under Chapter 46 or 96 of Title 18, United States Code,
or under the Controlled Substances Act (21 U.S.C. § 801 et seq.).
See 18 U.S.C. § 3663(c)(4).
Furthermore, a penalty assessment under 18 U.S.C. § 3013 or a fine
under Subchapter C of Chapter 227 of Title 18, United States Code,
shall take precedence over an order of community restitution under
subsection (d). See 18 U.S.C. § 3663(c)(5).
Background: Section 3553(a)(7) of Title 18, United States Code,
requires the court, "in determining the particular sentence to be
imposed," to consider "the need to provide restitution to any
victims of the offense." Orders of restitution are authorized under
18 U.S.C. §§ 1593, 2248, 2259, 2264, 2327, 3663, and 3663A , and 21
U.S.C. § 853(q) . For offenses for which an order of restitution is
not authorized, restitution may be imposed as a condition of
probation or supervised release.
Subsection (d) implements the instruction to the Commission in
section 205 of the Antiterrorism and Effective Death Penalty Act of
1996. This provision directs the Commission to develop guidelines
for community restitution in connection with certain drug offenses
where there is no identifiable victim but the offense causes
"public harm."
To the extent that any of the above-noted statutory provisions
conflict with the provisions of this guideline, the applicable
statutory provision shall control.
Historical Note: Effective November 1, 1987. Amended effective
January 15, 1988 (see Appendix C, amendment 53); November 1, 1989
(see Appendix C, amendments 278, 279, and 302); November 1, 1991
(see Appendix C, amendment 383); November 1, 1993 (see Appendix C,
amendment 501); November 1, 1995 (see Appendix C, amendment 530);
November 1, 1997 (see Appendix C, amendment 571); May 1, 2001 (see
Appendix C, amendment 612); November 1, 2001 (see Appendix C,
amendment 627) .
§5E1.2. Fines for Individual Defendants
(a) The court shall impose a fine in all cases, except where the
defendant establishes that he is unable to pay and is not likely to
become able to pay any fine.
(b) The applicable fine guideline range is that specified in
subsection (c) below. If, however, the guideline for the offense in
Chapter Two provides a specific rule for imposing a fine, that rule
takes precedence over subsection (c) of this section.
(c) (1) The minimum of the fine guideline range is the amount shown
in column A of the table below.
(2) Except as specified in (4) below, the maximum of the fine
guideline range is the amount shown in column B of the table below.
(3) Fine Table
Offense Level
A Minimum
B Maximum
3 and below
$100
$5,000
4-5
$250
$5,000
6-7
$5000
$5,000
8-9
$1,000
$10,000
10-11
$2,000
$20,000
12-13
$3,000
$30,000
14-15
$4,000
$40,000
16-17
$5,000
$50,000
18-19
$6,000
$60,000
20-22
$7,500
$75,000
23-25
$10,000
$100,000
26-28
$12,500
$125,000
29-31
$15,000
$150,000
32-34
$17,500
$175,000
35-37
$20,000
$200,000
38 and above
$25,000
$250,000.
(4) Subsection (c)(2), limiting the maximum fine, does not apply if
the defendant is convicted under a statute authorizing (A) a
maximum fine greater than $250,000, or (B) a fine for each day of
violation. In such cases, the court may impose a fine up to the
maximum authorized by the statute.
(d) In determining the amount of the fine, the court shall
consider:
(1) the need for the combined sentence to reflect the seriousness
of the offense (including the harm or loss to the victim and the
gain to the defendant), to promote respect for the law, to provide
just punishment and to afford adequate deterrence;
(2) any evidence presented as to the defendant’s ability to pay the
fine (including the ability to pay over a period of time) in light
of his earning capacity and financial resources;
(3) the burden that the fine places on the defendant and his dependents relative to alternative punishments;
(4) any restitution or reparation that the defendant has made or is
obligated to make;
(5) any collateral consequences of conviction, including civil
obligations arising from the defendant’s conduct;
(6) whether the defendant previously has been fined for a similar
offense;
(7) the expected costs to the government of any term of probation,
or term of imprisonment and term of supervised release imposed; and
(8) any other pertinent equitable considerations.
The amount of the fine should always be sufficient to ensure that
the fine, taken together with other sanctions imposed, is punitive.
(e) If the defendant establishes that (1) he is not able and, even
with the use of a reasonable installment schedule, is not likely to
become able to pay all or part of the fine required by the
preceding provisions, or (2) imposition of a fine would unduly
burden the defendant’s dependents, the court may impose a lesser
fine or waive the fine. In these circumstances, the court shall
consider alternative sanctions in lieu of all or a portion of the
fine, and must still impose a total combined sanction that is
punitive. Although any additional sanction not proscribed by the
guidelines is permissible, community service is the generally
preferable alternative in such instances.
(f) If the defendant establishes that payment of the fine in a lump
sum would have an unduly severe impact on him or his dependents,
the court should establish an installment schedule for payment of
the fine. The length of the installment schedule generally should
not exceed twelve months, and shall not exceed the maximum term of
probation authorized for the offense. The defendant should be
required to pay a substantial installment at the time of
sentencing. If the court authorizes a defendant sentenced to
probation or supervised release to pay a fine on an installment
schedule, the court shall require as a condition of probation or
supervised release that the defendant pay the fine according to the
schedule. The court also may impose a condition prohibiting the
defendant from incurring new credit charges or opening additional lines of credit unless he is
in compliance with the payment schedule.
(g) If the defendant knowingly fails to pay a delinquent fine, the
court shall resentence him in accordance with 18 U.S.C. § 3614.
Commentary
Application Notes:
1. A fine may be the sole sanction if the guidelines do not require
a term of imprisonment. If, however, the fine is not paid in full
at the time of sentencing, it is recommended that the court
sentence the defendant to a term of probation, with payment of the
fine as a condition of probation. If a fine is imposed in addition
to a term of imprisonment, it is recommended that the court impose
a term of supervised release following imprisonment as a means of
enforcing payment of the fine.
2. In general, the maximum fine permitted by law as to each count
of conviction is $250,000 for a felony or for any misdemeanor
resulting in death; $100,000 for a Class A misdemeanor; and $5,000
for any other offense. 18 U.S.C. § 3571(b)(3)-(7). However, higher
or lower limits may apply when specified by statute. 18 U.S.C.
§ 3571(b)(1), (e). As an alternative maximum, the court may fine
the defendant up to the greater of twice the gross gain or twice
the gross loss. 18 U.S.C. § 3571(b)(2), (d).
3. The determination of the fine guideline range may be dispensed
with entirely upon a court determination of present and future
inability to pay any fine. The inability of a defendant to post
bail bond (having otherwise been determined eligible for release)
and the fact that a defendant is represented by (or was determined
eligible for) assigned counsel are significant indicators of
present inability to pay any fine. In conjunction with other
factors, they may also indicate that the defendant is not likely to
become able to pay any fine.
4. The Commission envisions that for most defendants, the maximum
of the guideline fine range from subsection (c) will be at least
twice the amount of gain or loss resulting from the offense. Where,
however, two times either the amount of gain to the defendant or
the amount of loss caused by the offense exceeds the maximum of the
fine guideline, an upward departure from the fine guideline may be
warranted.
Moreover, where a sentence within the applicable fine guideline
range would not be sufficient to ensure both the disgorgement of
any gain from the offense that otherwise would not be disgorged
(e.g., by restitution or forfeiture) and an adequate punitive fine,
an upward departure from the fine guideline range may be warranted.
5. Subsection (c)(4) applies to statutes that contain special
provisions permitting larger fines; the guidelines do not limit
maximum fines in such cases. These statutes include, among others:
21 U.S.C. §§ 841(b) and 960(b), which authorize fines up to
$8 million in offenses involving the manufacture, distribution, or
importation of certain controlled substances; 21 U.S.C. § 848(a),
which authorizes fines up to $4 million in offenses involving the
manufacture or distribution of controlled substances by a
continuing criminal enterprise; 18 U.S.C. § 1956(a), which
authorizes a fine equal to the greater of $500,000 or two times the
value of the monetary instruments or funds involved in offenses
involving money laundering of financial instruments; 18 U.S.C.
§ 1957(b)(2), which authorizes a fine equal to two times the amount
of any criminally derived property involved in a money laundering
transaction; 33 U.S.C. § 1319(c), which authorizes a fine of up to
$50,000 per day for violations of the Water Pollution Control Act;
42 U.S.C. § 6928(d), which authorizes a fine of up to $50,000 per
day for violations of the Resource Conservation Act; and 2 U.S.C.
§ 437g(d)(1)(D), which authorizes, for violations of the Federal
Election Campaign Act under 2 U.S.C. § 441f, a fine up to the
greater of $50,000 or 1,000 percent of the amount of the violation,
and which requires, in the case of such a violation, a minimum fine
of not less than 300 percent of the amount of the violation.
There may be cases in which the defendant has entered into a
conciliation agreement with the Federal Election Commission under
section 309 of the Federal Election Campaign Act of 1971 in order
to correct or prevent a violation of such Act by the defendant. The
existence of a conciliation agreement between the defendant and
Federal Election Commission, and the extent of compliance with that
conciliation agreement, may be appropriate factors in determining
at what point within the applicable fine guideline range to
sentence the defendant, unless the defendant began negotiations
toward a conciliation agreement after becoming aware of a criminal
investigation.
6. The existence of income or assets that the defendant failed to
disclose may justify a larger fine than that which otherwise would
be warranted under this section. The court may base its conclusion
as to this factor on information revealing significant unexplained
expenditures by the defendant or unexplained possession of assets
that do not comport with the defendant’s reported income. If the
court concludes that the defendant willfully misrepresented all or
part of his income or assets, it may increase the offense level and
resulting sentence in accordance with Chapter Three, Part C
(Obstruction).
7. In considering subsection (d)(7), the court may be guided by
reports published by the Bureau of Prisons and the Administrative
Office of the United States Courts concerning average costs.
Historical Note: Effective November 1, 1987. Amended effective
January 15, 1988 (see Appendix C, amendment 54); November 1, 1989
(see Appendix C, amendments 280, 281, and 302); November 1, 1990
(see Appendix C, amendment 356); November 1, 1991 (see Appendix C,
amendment 384); November 1, 1997 (see Appendix C, amendment 572);
November 1, 2002 (see Appendix C, amendment 646); January 25, 2003
(see Appendix C, amendment 648); November 1, 2003 (see Appendix C,
amendment 656).
§5E1.3. Special Assessments
A special assessment must be imposed on a convicted defendant in
the amount prescribed by statute.
Commentary
Application Notes:
1. This guideline applies only if the defendant is an individual.
See §8E1.1 for special assessments applicable to organizations.
2. The following special assessments are provided by statute (18
U.S.C. § 3013):
For Offenses Committed By Individuals On Or After April
24, 1996:
(A)
$100, if convicted of a felony;
(B)
$25, if convicted of a Class A misdemeanor;
(C)
$10, if convicted of a Class B misdemeanor;
(D)
$5, if convicted of a Class C misdemeanor or an
infraction.
For Offenses Committed By Individuals On Or After November
18, 1988 But Prior To April 24, 1996:
(E)
$50, if convicted of a felony;
(F)
$25, if convicted of a Class A misdemeanor;
(G)
$10, if convicted of a Class B misdemeanor;
(H)
$5, if convicted of a Class C misdemeanor or an
infraction.
For Offenses Committed By Individuals Prior To November
18, 1988:
(I)
$50, if convicted of a felony;
(J)
$25, if convicted of a misdemeanor.
3. A special assessment is required by statute for each count of
conviction.
Background: Section 3013 of Title 18, United States Code, added by
The Victims of Crimes Act of 1984, Pub. L. No. 98-473, Title II,
Chap. XIV, requires courts to impose special assessments on
convicted defendants for the purpose of funding the Crime Victims
Fund established by the same legislation.
Historical Note: Effective November 1, 1987. Amended effective
November 1, 1989 (see Appendix C, amendments 282 and 302); November
1, 1997 (see Appendix C, amendment 573 ).
§5E1.4. Forfeiture
Forfeiture is to be imposed upon a convicted defendant as provided
by statute.
Commentary
Background: Forfeiture provisions exist in various statutes. For
example, 18 U.S.C. § 3554 requires the court imposing a sentence
under 18 U.S.C. § 1962 (proscribing the use of the proceeds of
racketeering activities in the operation of an enterprise engaged
in interstate commerce) or Titles II and III of the Comprehensive
Drug Abuse Prevention and Control Act of 1970 (proscribing the
manufacture and distribution of controlled substances) to order the
forfeiture of property in accordance with 18 U.S.C. § 1963 and 21
U.S.C. § 853, respectively. Those provisions require the automatic
forfeiture of certain property upon conviction of their respective
underlying offenses.
In addition, the provisions of 18 U.S.C. §§ 3681-3682 authorizes
the court, in certain circumstances, to order the forfeiture of a
violent criminal’s proceeds from the depiction of his crime in a
book, movie, or other medium. Those sections authorize the deposit
of proceeds in an escrow account in the Crime Victims Fund of the
United States Treasury. The money is to remain available in the account for five years to satisfy claims brought against the
defendant by the victim(s) of his offenses. At the end of the five-year period, the court may require
that any proceeds remaining in the account be released from escrow
and paid into the Fund. 18 U.S.C. § 3681(c)(2).
Historical Note: Effective November 1, 1987. Amended effective
November 1, 1989 (see Appendix C, amendment 302).
§5E1.5. Costs of Prosecution (Policy Statement)
Costs of prosecution shall be imposed on a defendant as required by
statute.
Commentary
Background: Various statutes require the court to impose the costs
of prosecution: 7 U.S.C. § 13 (larceny or embezzlement in
connection with commodity exchanges); 21 U.S.C. § 844 (simple
possession of controlled substances) (unless the court finds that
the defendant lacks the ability to pay); 26 U.S.C. § 7201 (attempt
to defeat or evade income tax); 26 U.S.C. § 7202 (willful failure
to collect or pay tax); 26 U.S.C. § 7203 (willful failure to file
income tax return, supply information, or pay tax); 26 U.S.C. §
7206 (fraud and false statements); 26 U.S.C. § 7210 (failure to
obey summons); 26 U.S.C. § 7213 (unauthorized disclosure of
information); 26 U.S.C. § 7215 (offenses with respect to collected
taxes); 26 U.S.C. § 7216 (disclosure or use of information by
preparers of returns); 26 U.S.C. § 7232 (failure to register or
false statement by gasoline manufacturer or producer); 42 U.S.C. §
1302c-9 (improper FOIA disclosure); 43 U.S.C. § 942-6 (rights of
way for Alaskan wagon roads).
Historical Note: Effective November 1, 1992 (see Appendix C,
amendment 463).
PART F - SENTENCING OPTIONS
§5F1.1. Community Confinement
Community confinement may be imposed as a condition of probation or
supervised release.*
*Note: Section 3583(d) of title 18, United States Code, provides
that "[t]he court may order, as a further condition of supervised
release...any condition set forth as a discretionary condition of
probation in section 3563(b)(1) through (b)(10) and (b)(12) through
(b)(20), and any other condition it considers to be appropriate."
Subsection (b)(11) of section 3563 of title 18, United States Code,
is explicitly excluded as a condition of supervised release. Before
the enactment of the Antiterrorism and Effective Death Penalty Act
of 1996, the condition at 18 U.S.C. § 3563(b)(11) was intermittent
confinement. The Act deleted 18 U.S.C. § 3563(b)(2), authorizing
the payment of a fine as a condition of probation, and redesignated
the remaining conditions of probation set forth in 18 U.S.C. §
3563(b); intermittent confinement is now set forth at subsection
(b)(10), whereas subsection (b)(11) sets forth the condition of
residency at a community corrections facility. It would appear that
intermittent confinement now is authorized as a condition of
supervised release and that community confinement now is not
authorized as a condition of supervised release.
However, there is some question as to whether Congress intended
this result. Although the Antiterrorism and Effective Death Penalty
Act of 1996 redesignated the remaining paragraphs of section
3563(b), it failed to make the corresponding redesignations in 18
U.S.C. § 3583(d), regarding discretionary conditions of supervised
release.
Commentary
Application Notes:
1. "Community confinement" means residence in a community treatment
center, halfway house, restitution center, mental health facility,
alcohol or drug rehabilitation center, or other community facility;
and participation in gainful employment, employment search efforts,
community service, vocational training, treatment, educational
programs, or similar facility-approved programs during non-residential hours.
2. Community confinement generally should not be imposed for a
period in excess of six months. A longer period may be imposed to
accomplish the objectives of a specific rehabilitative program,
such as drug rehabilitation. The sentencing judge may impose other
discretionary conditions of probation or supervised release
appropriate to effectuate community confinement.
Historical Note: Effective November 1, 1987. Amended effective
November 1, 1989 (see Appendix C, amendment 302); November 1, 2002
(see Appendix C, amendment 646).
§5F1.2. Home Detention
Home detention may be imposed as a condition of probation or
supervised release, but only as a substitute for imprisonment.
Commentary
Application Notes:
1. "Home detention" means a program of confinement and supervision
that restricts the defendant to his place of residence
continuously, except for authorized absences, enforced by
appropriate means of surveillance by the probation office. When an
order of home detention is imposed, the defendant is required to be
in his place of residence at all times except for approved absences
for gainful employment, community service, religious services,
medical care, educational or training programs, and such other
times as may be specifically authorized. Electronic monitoring is
an appropriate means of surveillance and ordinarily should be used
in connection with home detention. However, alternative means of
surveillance may be used so long as they are as effective as
electronic monitoring.
2. The court may impose other conditions of probation or supervised
release appropriate to effectuate home detention. If the court
concludes that the amenities available in the residence of a
defendant would cause home detention not to be sufficiently
punitive, the court may limit the amenities available.
3. The defendant’s place of residence, for purposes of home
detention, need not be the place where the defendant previously
resided. It may be any place of residence, so long as the owner of
the residence (and any other person(s) from whom consent is
necessary) agrees to any conditions that may be imposed by the
court, e.g., conditions that a monitoring system be installed, that
there will be no "call forwarding" or "call waiting" services, or
that there will be no cordless telephones or answering machines.
Background: The Commission has concluded that the surveillance
necessary for effective use of home detention ordinarily requires
electronic monitoring. However, in some cases home detention may
effectively be enforced without electronic monitoring, e.g., when
the defendant is physically incapacitated, or where some other
effective means of surveillance is available. Accordingly, the
Commission has not required that electronic monitoring be a
necessary condition for home detention. Nevertheless, before
ordering home detention without electronic monitoring, the court
should be confident that an alternative form of surveillance will
be equally effective.
In the usual case, the Commission assumes that a condition
requiring that the defendant seek and maintain gainful employment
will be imposed when home detention is ordered.
Historical Note: Effective November 1, 1987. Amended effective
November 1, 1989 (see Appendix C, amendments 271 and 302).
§5F1.3. Community Service
Community service may be ordered as a condition of probation or
supervised release.
Commentary
Application Note:
1. Community service generally should not be imposed in excess of
400 hours. Longer terms of community service impose heavy
administrative burdens relating to the selection of suitable
placements and the monitoring of attendance.
Historical Note: Effective November 1, 1987. Amended effective
November 1, 1989 (see Appendix C, amendments 283 and 302);
November 1, 1991 (see Appendix C, amendment 419).
§5F1.4. Order of Notice to Victims
The court may order the defendant to pay the cost of giving notice
to victims pursuant to 18 U.S.C. § 3555. This cost may be set off
against any fine imposed if the court determines that the
imposition of both sanctions would be excessive.
Commentary
Background: In cases where a defendant has been convicted of an
offense involving fraud or "other intentionally deceptive
practices," the court may order the defendant to "give reasonable
notice and explanation of the conviction, in such form as the court
may approve" to the victims of the offense. 18 U.S.C. § 3555. The
court may order the notice to be given by mail, by advertising in
specific areas or through specific media, or by other appropriate
means. In determining whether a notice is appropriate, the court
must consider the generally applicable sentencing factors listed in
18 U.S.C. § 3553(a) and the cost involved in giving the notice as
it relates to the loss caused by the crime. The court may not
require the defendant to pay more than $20,000 to give notice.
If an order of notice to victims is under consideration, the court
must notify the government and the defendant. 18 U.S.C. § 3553(d).
Upon motion of either party, or on its own motion, the court must:
(1) permit the parties to submit affidavits and memoranda relevant
to the imposition of such an order; (2) provide counsel for both
parties the opportunity to address orally, in open court, the
appropriateness of such an order; and (3) if it issues such an
order, state its reasons for doing so. The court may also order any
additional procedures that will not unduly complicate or prolong
the sentencing process.
Historical Note: Effective November 1, 1987. Amended effective
November 1, 1989 (see Appendix C, amendments 284 and 302).
§5F1.5. Occupational Restrictions
(a) The court may impose a condition of probation or supervised
release prohibiting the defendant from engaging in a specified
occupation, business, or profession, or limiting the terms on which
the defendant may do so, only if it determines that:
(1) a reasonably direct relationship existed between the
defendant’s occupation, business, or profession and the conduct
relevant to the offense of conviction; and
(2) imposition of such a restriction is reasonably necessary to
protect the public because there is reason to believe that, absent
such restriction, the defendant will continue to engage in unlawful
conduct similar to that for which the defendant was convicted.
(b) If the court decides to impose a condition of probation or
supervised release restricting a defendant’s engagement in a
specified occupation, business, or profession, the court shall
impose the condition for the minimum time and to the minimum extent
necessary to protect the public.
Commentary
Background: The Comprehensive Crime Control Act authorizes the
imposition of occupational restrictions as a condition of probation, 18 U.S.C. § 3563(b)(5),
or supervised release, 18 U.S.C. § 3583(d). Pursuant to §
3563(b)(5), a court may require a defendant to:
[R]efrain, in the case of an individual, from engaging in a
specified occupation, business, or profession bearing a reasonably
direct relationship to the conduct constituting the offense, or
engage in such a specified occupation, business, or profession only
to a stated degree or under stated circumstances.
Section 3583(d) incorporates this section by reference. The Senate
Judiciary Committee Report on the Comprehensive Crime Control Act
explains that the provision was "intended to be used to preclude
the continuation or repetition of illegal activities while avoiding
a bar from employment that exceeds that needed to achieve that
result." S. Rep. No. 225, 98th Cong., 1st Sess. 96-97. The
condition "should only be used as reasonably necessary to protect
the public. It should not be used as a means of punishing the
convicted person." Id. at 96. Section 5F1.5 accordingly limits the
use of the condition and, if imposed, limits its scope, to the
minimum reasonably necessary to protect the public.
The appellate review provisions permit a defendant to challenge the
imposition of a probation condition under 18 U.S.C. § 3563(b)(5) if
the sentence includes a more limiting condition of probation or
supervised release than the maximum established in the guideline.
See 18 U.S.C. § 3742(a)(3). The government may appeal if the
sentence includes a less limiting condition of probation than the
minimum established in the guideline. See 18 U.S.C. § 3742(b)(3).
Historical Note: Effective November 1, 1987. Amended effective
November 1, 1989 (see Appendix C, amendments 285 and 302);
November 1, 1991 (see Appendix C, amendment 428); November 1, 2002
(see Appendix C, amendment 646).
§5F1.6. Denial of Federal Benefits to Drug Traffickers and
Possessors
The court, pursuant to 21 U.S.C. § 862, may deny the eligibility
for certain Federal benefits of any individual convicted of
distribution or possession of a controlled substance.
Commentary
Application Note:
1. "Federal benefit" is defined in 21 U.S.C. § 862(d) to mean "any
grant, contract, loan, professional license, or commercial license
provided by an agency of the United States or by appropriated funds
of the United States" but "does not include any retirement,
welfare, Social Security, health, disability, veterans benefit,
public housing, or other similar benefit, or any other benefit for
which payments or services are required for eligibility."
Background: Subsections (a) and (b) of 21 U.S.C. § 862 provide that
an individual convicted of a state or federal drug trafficking or
possession offense may be denied certain federal benefits. Except
for an individual convicted of a third or subsequent drug
distribution offense, the period of benefit ineligibility, within
the applicable maximum term set forth in 21 U.S.C. § 862(a)(1) (for
distribution offenses) and (b)(1)(for possession offenses), is at
the discretion of the court. In the case of an individual convicted
of a third or subsequent drug distribution offense, denial of
benefits is mandatory and permanent under 21 U.S.C. § 862(a)(1)(C)
(unless suspended by the court under 21 U.S.C. § 862(c)).
Subsection (b)(2) of 21 U.S.C. § 862 provides that the period of
benefit ineligibility that may be imposed in the case of a drug
possession offense "shall be waived in the case of a person who, if
there is a reasonable body of evidence to substantiate such
declaration, declares himself to be an addict and submits himself
to a long-term treatment program for addiction, or is deemed to be
rehabilitated pursuant to rules established by the Secretary of
Health and Human Services."
Subsection (c) of 21 U.S.C. § 862 provides that the period of
benefit ineligibility shall be suspended "if the individual (A)
completes a supervised drug rehabilitation program after becoming
ineligible under this section; (B) has otherwise been
rehabilitated; or (C) has made a good faith effort to gain
admission to a supervised drug rehabilitation program, but is
unable to do so because of inaccessibility or unavailability of
such a program, or the inability of the individual to pay for such
a program."
Subsection (e) of 21 U.S.C. § 862 provides that a period of benefit
ineligibility "shall not apply to any individual who cooperates or
testifies with the Government in the prosecution of a Federal or
State offense or who is in a Government witness protection
program."
Historical Note: Effective November 1, 1989 (see Appendix C,
amendment 305); November 1, 1992 (see Appendix C, amendment 464).
§5F1.7. Shock Incarceration Program (Policy Statement)
The court, pursuant to 18 U.S.C. §§ 3582(a) and 3621(b)(4), may
recommend that a defendant who meets the criteria set forth in 18
U.S.C. § 4046 participate in a shock incarceration program.
Commentary
Background: Section 4046 of title 18, United States Code, provides
--
"(a) the Bureau of Prisons may place in a shock incarceration
program any person who is sentenced to a term of more than 12, but
not more than 30 months, if such person consents to that placement.
(b) For such initial portion of the term of imprisonment as the
Bureau of Prisons may determine, not to exceed six months, an
inmate in the shock incarceration program shall be required to -
(1) adhere to a highly regimented schedule that provides the strict
discipline, physical training, hard labor, drill, and ceremony
characteristic of military basic training; and
(2) participate in appropriate job training and educational
programs (including literacy programs) and drug, alcohol, and other
counseling programs.
(c) An inmate who in the judgment of the Director of the Bureau of
Prisons has successfully completed the required period of shock
incarceration shall remain in the custody of the Bureau for such
period (not to exceed the remainder of the prison term otherwise
required by law to be served by that inmate), and under such
conditions, as the Bureau deems appropriate. 18 U.S.C. § 4046."
The Bureau of Prisons has issued an operations memorandum (174-90
(5390), November 20, 1990) that outlines eligibility criteria and
procedures for the implementation of this program (which the Bureau
of Prisons has titled "intensive confinement program"). Under these
procedures, the Bureau will not place a defendant in an intensive
confinement program unless the sentencing court has approved,
either at the time of sentencing or upon consultation after the
Bureau has determined that the defendant is otherwise eligible. In
return for the successful completion of the "intensive confinement"
portion of the program, the defendant is eligible to serve the
remainder of his term of imprisonment in a graduated release
program comprised of community corrections center and home
confinement phases.
Historical Note: Effective November 1, 1991 (see Appendix C,
amendment 424). Amended effective November 1, 2002 (see Appendix C,
amendment 646).
PART G - IMPLEMENTING THE TOTAL SENTENCE OF IMPRISONMENT
§5G1.1. Sentencing on a Single Count of Conviction
(a) Where the statutorily authorized maximum sentence is less than
the minimum of the applicable guideline range, the statutorily
authorized maximum sentence shall be the guideline sentence.
(b) Where a statutorily required minimum sentence is greater than
the maximum of the applicable guideline range, the statutorily
required minimum sentence shall be the guideline sentence.
(c) In any other case, the sentence may be imposed at any point
within the applicable guideline range, provided that the sentence
--
(1) is not greater than the statutorily authorized maximum
sentence, and
(2) is not less than any statutorily required minimum sentence.
Commentary
This section describes how the statutorily authorized maximum
sentence, or a statutorily required minimum sentence, may affect
the determination of a sentence under the guidelines. For example,
if the applicable guideline range is 51-63 months and the maximum
sentence authorized by statute for the offense of conviction is 48
months, the sentence required by the guidelines under subsection
(a) is 48 months; a sentence of less than 48 months would be a
guideline departure. If the applicable guideline range is 41-51
months and there is a statutorily required minimum sentence of 60
months, the sentence required by the guidelines under subsection
(b) is 60 months; a sentence of more than 60 months would be a
guideline departure. If the applicable guideline range is 51-63
months and the maximum sentence authorized by statute for the
offense of conviction is 60 months, the guideline range is
restricted to 51-60 months under subsection (c).
Historical Note: Effective November 1, 1987. Amended effective
November 1, 1989 (see Appendix C, amendment 286).
§5G1.2. Sentencing on Multiple Counts of Conviction
(a) Except as provided in subsection (e), the sentence to be
imposed on a count for which the statute (1) specifies a term of
imprisonment to be imposed; and (2) requires that such term of
imprisonment be imposed to run consecutively to any other term of
imprisonment, shall be determined by that statute and imposed
independently.
(b) Except as otherwise required by law (see §5G1.1(a), (b)), the
sentence imposed on each other count shall be the total punishment
as determined in accordance with Part D of Chapter Three, and
Part C of this Chapter.
(c) If the sentence imposed on the count carrying the highest
statutory maximum is adequate to achieve the total punishment, then
the sentences on all counts shall run concurrently, except to the
extent otherwise required by law.
(d) If the sentence imposed on the count carrying the highest
statutory maximum is less than the total punishment, then the
sentence imposed on one or more of the other counts shall run
consecutively, but only to the extent necessary to produce a
combined sentence equal to the total punishment. In all other
respects, sentences on all counts shall run concurrently, except to
the extent otherwise required by law.
(e) In a case in which subsection (c) of §4B1.1 (Career Offender)
applies, to the extent possible, the total punishment is to be
apportioned among the counts of conviction, except that (1) the
sentence to be imposed on a count requiring a minimum term of
imprisonment shall be at least the minimum required by statute; and
(2) the sentence to be imposed on the 18 U.S.C. § 924(c) or §
929(a) count shall be imposed to run consecutively to any other
count.
Commentary
Application Notes:
1. In General.—This section specifies the procedure for determining
the specific sentence to be formally imposed on each count in a
multiple-count case. The combined length of the sentences ("total
punishment") is determined by the court after determining the
adjusted combined offense level and the Criminal History Category.
Except as otherwise required by subsection (e) or any other law,
the total punishment is to be imposed on each count and the
sentences on all counts are to be imposed to run concurrently to
the extent allowed by the statutory maximum sentence of
imprisonment for each count of conviction.
This section applies to multiple counts of conviction (1) contained
in the same indictment or information, or (2) contained in
different indictments or informations for which sentences are to be
imposed at the same time or in a consolidated proceeding.
Usually, at least one of the counts will have a statutory maximum
adequate to permit imposition of the total punishment as the
sentence on that count. The sentence on each of the other counts
will then be set at the lesser of the total punishment and the
applicable statutory maximum, and be made to run concurrently with
all or part of the longest sentence. If no count carries an
adequate statutory maximum, consecutive sentences are to be imposed
to the extent necessary to achieve the total punishment.
2. Mandatory Minimum and Mandatory Consecutive Terms of
Imprisonment (Not Covered by Subsection (e)).—
(A) In General.— Subsection (a) applies if a statute (i) specifies
a term of imprisonment to be imposed; and (ii) requires that such
term of imprisonment be imposed to run consecutively to any other
term of imprisonment. See, e.g., 18 U.S.C. § 924(c) (requiring
mandatory minimum terms of imprisonment, based on the conduct
involved, and also requiring the sentence imposed to run
consecutively to any other term of imprisonment) and 18 U.S.C. §
1028A (requiring a mandatory term of imprisonment of either two or
five years, based on the conduct involved, and also requiring,
except in the circumstances described in subdivision (B), the
sentence imposed to run consecutively to any other term of
imprisonment) . Except for certain career offender situations in
which subsection (c) of §4B1.1 (Career Offender) applies, the term
of years to be imposed consecutively is the minimum required by the
statute of conviction and is independent of the guideline sentence
on any other count. See, e.g., the Commentary to §§2K2.4 (Use of
Firearm, Armor-Piercing Ammunition, or Explosive During or in
Relation to Certain Crimes) and 3D1.1 (Procedure for Determining
Offense Level on Multiple Counts) regarding the determination of
the offense levels for related counts when a conviction under
18 U.S.C. § 924(c) is involved. Subsection (a) also applies in
certain other instances in which an independently determined and
consecutive sentence is required. See, e.g., Application Note 3 of
the Commentary to §2J1.6 (Failure to Appear by Defendant), relating
to failure to appear for service of sentence.
(B) Multiple Convictions Under 18 U.S.C. § 1028A.—Section 1028A of
title 18, United States Code, generally requires that the mandatory
term of imprisonment for a violation of such section be imposed
consecutively to any other term of imprisonment. However, 18 U.S.C.
§ 1028A(b)(4) permits the court, in its discretion, to impose the
mandatory term of imprisonment on a defendant for a violation of
such section "concurrently, in whole or in part, only with another
term of imprisonment that is imposed by the court at the same time
on that person for an additional violation of this section,
provided that such discretion shall be exercised in accordance with
any applicable guidelines and policy statements issued by the
Sentencing Commission. . .".
In determining whether multiple counts of 18 U.S.C. § 1028A should
run concurrently with, or consecutively to, each other, the court
should consider the following non-exhaustive list of factors:
(i) The nature and seriousness of the underlying offenses. For
example, the court should consider the appropriateness of imposing
consecutive, or partially consecutive, terms of imprisonment for
multiple counts of 18 U.S.C. § 1028A in a case in which an
underlying offense for one of the 18 U.S.C. § 1028A offenses is a
crime of violence or an offense enumerated in 18 U.S.C. §
2332b(g)(5)(B).
(ii) Whether the underlying offenses are groupable under §3D1.2
(Groups of Closely Related Counts ). Generally, multiple counts of
18 U.S.C. § 1028A should run concurrently with one another in cases
in which the underlying offenses are groupable under §3D1.2.
(iii) Whether the purposes of sentencing set forth in 18 U.S.C. §
3553(a)(2) are better achieved by imposing a concurrent or a
consecutive sentence for multiple counts of 18 U.S.C. § 1028A.
(C) Imposition of Supervised Release.—In the case of a consecutive
term of imprisonment imposed under subsection (a), any term of
supervised release imposed is to run concurrently with any other
term of supervised release imposed. See 18 U.S.C. § 3624(e).
3. Career Offenders Covered under Subsection (e).—
(A) Imposing Sentence.—The sentence imposed for a conviction under
18 U.S.C. § 924(c) or § 929(a) shall, under that statute, consist
of a minimum term of imprisonment imposed to run consecutively to
the sentence on any other count. Subsection (e) requires that the
total punishment determined under §4B1.1(c) be apportioned among
all the counts of conviction. In most cases this can be achieved by
imposing the statutory minimum term of imprisonment on the 18
U.S.C. § 924(c) or § 929(a) count, subtracting that minimum term of
imprisonment from the total punishment determined under §4B1.1(c),
and then imposing the balance of the total punishment on the other
counts of conviction. In some cases covered by subsection (e), a
consecutive term of imprisonment longer than the minimum required
by 18 U.S.C. § 924(c) or § 929(a) will be necessary in order both
to achieve the total punishment determined by the court and to
comply with the applicable statutory requirements.
(B) Examples.—The following examples illustrate the application of
subsection (e) in a multiple count situation:
(i) The defendant is convicted of one count of violating 18 U.S.C.
§ 924(c) for possessing a firearm in furtherance of a drug
trafficking offense (5 year mandatory minimum), and one count of
violating 21 U.S.C. § 841(b)(1)(C) (20 year statutory maximum).
Applying §4B1.1(c), the court determines that a sentence of 300
months is appropriate (applicable guideline range of 262-327). The
court then imposes a sentence of 60 months on the 18 U.S.C.
§ 924(c) count, subtracts that 60 months from the total punishment
of 300 months and imposes the remainder of 240 months on the 21
U.S.C. § 841 count. As required by statute, the sentence on the 18
U.S.C. § 924(c) count is imposed to run consecutively.
(ii) The defendant is convicted of one count of 18 U.S.C. § 924(c)
(5 year mandatory minimum), and one count of violating 21 U.S.C.
§ 841(b)(1)(C) (20 year statutory maximum). Applying §4B1.1(c), the
court determines that a sentence of 327 months is appropriate
(applicable guideline range of 262-327). The court then imposes a
sentence of 240 months on the 21 U.S.C. § 841 count and a sentence of 87 months on the 18 U.S.C. § 924(c) count to run
consecutively to the sentence on the 21 U.S.C. § 841 count.
(iii) The defendant is convicted of two counts of 18 U.S.C. §
924(c) (5 year mandatory minimum on first count, 25 year mandatory
minimum on second count) and one count of violating 18 U.S.C.
§ 113(a)(3) (10 year statutory maximum). Applying §4B1.1(c), the
court determines that a sentence of 460 months is appropriate
(applicable guideline range of 460-485 months). The court then
imposes (I) a sentence of 60 months on the first 18 U.S.C. § 924(c)
count; (II) a sentence of 300 months on the second 18 U.S.C. §
924(c) count; and (III) a sentence of 100 months on the 18 U.S.C.
§ 113(a)(3) count. The sentence on each count is imposed to run
consecutively to the other counts.
Historical Note: Effective November 1, 1987. Amended effective
November 1, 1989 (see Appendix C, amendments 287 and 288);
November 1, 1994 (see Appendix C, amendment 507) ; November 1, 1998
(see Appendix C, amendment 579) ; November 1, 2000 (see Appendix C,
amendment 598); November 1, 2002 (see Appendix C, amendment 642);
November 1, 2004 (see Appendix C, amendment 674); November 1, 2005
(see Appendix C, amendments 677 and 680).
§5G1.3. Imposition of a Sentence on a Defendant Subject to an
Undischarged Term of Imprisonment
(a) If the instant offense was committed while the defendant was
serving a term of imprisonment (including work release, furlough,
or escape status) or after sentencing for, but before commencing
service of, such term of imprisonment, the sentence for the instant
offense shall be imposed to run consecutively to the undischarged
term of imprisonment.
(b) If subsection (a) does not apply, and a term of imprisonment
resulted from another offense that is relevant conduct to the
instant offense of conviction under the provisions of subsections
(a)(1), (a)(2), or (a)(3) of §1B1.3 (Relevant Conduct) and that was
the basis for an increase in the offense level for the instant
offense under Chapter Two (Offense Conduct) or Chapter Three
(Adjustments), the sentence for the instant offense shall be
imposed as follows:
(1) the court shall adjust the sentence for any period of
imprisonment already served on the undischarged term of
imprisonment if the court determines that such period of
imprisonment will not be credited to the federal sentence by the
Bureau of Prisons; and
(2) the sentence for the instant offense shall be imposed to run
concurrently to the remainder of the undischarged term of
imprisonment.
(c) (Policy Statement) In any other case involving an undischarged
term of imprisonment, the sentence for the instant offense may be
imposed to run concurrently, partially concurrently, or
consecutively to the prior undischarged term of imprisonment to
achieve a reasonable punishment for the instant offense.
Commentary
Application Notes:
1. Consecutive Sentence - Subsection (a) Cases. Under subsection
(a), the court shall impose a consecutive sentence when the instant
offense was committed while the defendant was serving an
undischarged term of imprisonment or after sentencing for, but
before commencing service of, such term of imprisonment.
2. Application of Subsection (b).—
(A) In General.—Subsection (b) applies in cases in which all of the
prior offense (i) is relevant conduct to the instant offense under
the provisions of subsection (a)(1), (a)(2), or (a)(3) of §1B1.3
(Relevant Conduct); and (ii) has resulted in an increase in the
Chapter Two or Three offense level for the instant offense. Cases
in which only part of the prior offense is relevant conduct to the
instant offense are covered under subsection (c).
(B) Inapplicability of Subsection (b).—Subsection (b) does not
apply in cases in which the prior offense increased the Chapter Two
or Three offense level for the instant offense but was not relevant
conduct to the instant offense under §1B1.3(a)(1), (a)(2), or
(a)(3) (e.g., the prior offense is an aggravated felony for which
the defendant received an increase under §2L1.2 (Unlawfully
Entering or Remaining in the United States), or the prior offense
was a crime of violence for which the defendant received an
increased base offense level under §2K2.1 (Unlawful Receipt,
Possession, or Transportation of Firearms or Ammunition; Prohibited
Transactions Involving Firearms or Ammunition)).
(C) Imposition of Sentence.—If subsection (b) applies, and the
court adjusts the sentence for a period of time already served, the
court should note on the Judgement in a Criminal Case Order (i) the
applicable subsection (e.g., §5G1.3(b)); (ii) the amount of time by
which the sentence is being adjusted; (iii) the undischarged term
of imprisonment for which the adjustment is being given; and (iv)
that the sentence imposed is a sentence reduction pursuant to
§5G1.3(b) for a period of imprisonment that will not be credited by
the Bureau of Prisons.
(D) Example.—The following is an example in which subsection (b)
applies and an adjustment to the sentence is appropriate:
The defendant is convicted of a federal offense charging the sale
of 40 grams of cocaine. Under §1B1.3, the defendant is held
accountable for the sale of an additional 15 grams of cocaine, an
offense for which the defendant has been convicted and sentenced in
state court. The defendant received a nine-month sentence of
imprisonment for the state offense and has served six months on
that sentence at the time of sentencing on the instant federal
offense. The guideline range applicable to the defendant is 12-18
months (Chapter Two offense level of level 16 for sale of 55 grams
of cocaine; 3 level reduction for acceptance of responsibility;
final offense level of level 13; Criminal History Category I). The
court determines that a sentence of 13 months provides the
appropriate total punishment. Because the defendant has already
served six months on the related state charge as of the date of
sentencing on the instant federal offense, a sentence of seven
months, imposed to run concurrently with the three months remaining
on the defendant’s state sentence, achieves this result.
3. Application of Subsection (c).—
(A) In General.—Under subsection (c), the court may impose a
sentence concurrently, partially concurrently, or consecutively to
the undischarged term of imprisonment. In order to achieve a
reasonable incremental punishment for the instant offense and avoid
unwarranted disparity, the court should consider the following:
(i) the factors set forth in 18 U.S.C. § 3584 (referencing
18 U.S.C. § 3553(a));
(ii) the type (e.g., determinate, indeterminate/parolable) and
length of the prior undischarged sentence;
(iii) the time served on the undischarged sentence and the time
likely to be served before release;
(iv) the fact that the prior undischarged sentence may have been
imposed in state court rather than federal court, or at a different
time before the same or different federal court; and
(v) any other circumstance relevant to the determination of an
appropriate sentence for the instant offense.
(B) Partially Concurrent Sentence.—In some cases under subsection
(c), a partially concurrent sentence may achieve most appropriately
the desired result. To impose a partially concurrent sentence, the
court may provide in the Judgment in a Criminal Case Order that the
sentence for the instant offense shall commence on the earlier of
(i) when the defendant is released from the prior undischarged
sentence; or (ii) on a specified date. This order provides for a
fully consecutive sentence if the defendant is released on the
undischarged term of imprisonment on or before the date specified
in the order, and a partially concurrent sentence if the defendant
is not released on the undischarged term of imprisonment by that
date.
(C) Undischarged Terms of Imprisonment Resulting from Revocations
of Probation, Parole or Supervised Release.—Subsection (c) applies
in cases in which the defendant was on federal or state probation,
parole, or supervised release at the time of the instant offense
and has had such probation, parole, or supervised release revoked.
Consistent with the policy set forth in Application Note 4 and
subsection (f) of §7B1.3 (Revocation of Probation or Supervised
Release), the Commission recommends that the sentence for the
instant offense be imposed consecutively to the sentence imposed
for the revocation.
(D) Complex Situations.—Occasionally, the court may be faced with
a complex case in which a defendant may be subject to multiple
undischarged terms of imprisonment that seemingly call for the
application of different rules. In such a case, the court may
exercise its discretion in accordance with subsection (c) to
fashion a sentence of appropriate length and structure it to run in
any appropriate manner to achieve a reasonable punishment for the
instant offense.
(E) Downward Departure.—Unlike subsection (b), subsection (c) does
not authorize an adjustment of the sentence for the instant offense
for a period of imprisonment already served on the undischarged
term of imprisonment. However, in an extraordinary case involving
an undischarged term of imprisonment under subsection (c), it may
be appropriate for the court to downwardly depart. This may occur,
for example, in a case in which the defendant has served a very
substantial period of imprisonment on an undischarged term of
imprisonment that resulted from conduct only partially within the
relevant conduct for the instant offense. In such a case, a
downward departure may be warranted to ensure that the combined
punishment is not increased unduly by the fortuity and timing of
separate prosecutions and sentencings. Nevertheless, it is intended
that a departure pursuant to this application note result in a
sentence that ensures a reasonable incremental punishment for the
instant offense of conviction.
To avoid confusion with the Bureau of Prisons’ exclusive authority
provided under 18 U.S.C. § 3585(b) to grant credit for time served
under certain circumstances, the Commission recommends that any
downward departure under this application note be clearly stated on
the Judgment in a Criminal Case Order as a downward departure
pursuant to §5G1.3(c), rather than as a credit for time served.
4. Downward Departure Provision.—In the case of a discharged term
of imprisonment, a downward departure is not prohibited if the
defendant (A) has completed serving a term of imprisonment; and (B)
subsection (b) would have provided an adjustment had that completed
term of imprisonment been undischarged at the time of sentencing
for the instant offense. See §5K2.23 (Discharged Terms of
Imprisonment).
Background: In a case in which a defendant is subject to an
undischarged sentence of imprisonment, the court generally has
authority to impose an imprisonment sentence on the current offense
to run concurrently with or consecutively to the prior undischarged
term. 18 U.S.C. § 3584(a). Exercise of that authority, however, is
predicated on the court’s consideration of the factors listed in
18 U.S.C. § 3553(a), including any applicable guidelines or policy
statements issued by the Sentencing Commission.
Historical Note: Effective November 1, 1987. Amended effective
November 1, 1989 (see Appendix C, amendment 289); November 1, 1991
(see Appendix C, amendment 385); November 1, 1992 (see Appendix C,
amendment 465); November 1, 1993 (see Appendix C, amendment 494);
November 1, 1995 (see Appendix C, amendment 535); November 1, 2002
(see Appendix C, amendment 645); November 1, 2003 (see Appendix C,
amendment 660).
PART H - SPECIFIC OFFENDER CHARACTERISTICS
Introductory Commentary
The following policy statements address the relevance of certain
offender characteristics to the determination of whether a sentence
should be outside the applicable guideline range and, in certain
cases, to the determination of a sentence within the applicable
guideline range. Under 28 U.S.C. § 994(d), the Commission is
directed to consider whether certain specific offender
characteristics "have any relevance to the nature, extent, place of
service, or other incidents of an appropriate sentence" and to take
them into account only to the extent they are determined to be
relevant by the Commission.
The Commission has determined that certain circumstances are not
ordinarily relevant to the determination of whether a sentence
should be outside the applicable guideline range. Unless expressly
stated, this does not mean that the Commission views such
circumstances as necessarily inappropriate to the determination of
the sentence within the applicable guideline range or to the
determination of various other incidents of an appropriate sentence
(e.g., the appropriate conditions of probation or supervised
release). Furthermore, although these circumstances are not
ordinarily relevant to the determination of whether a sentence
should be outside the applicable guideline range, they may be
relevant to this determination in exceptional cases. They also may
be relevant if a combination of such circumstances makes the case
an exceptional one, but only if each such circumstance is
identified as an affirmative ground for departure and is present in
the case to a substantial degree. See §5K2.0 (Grounds for
Departure).
In addition, 28 U.S.C. § 994(e) requires the Commission to assure
that its guidelines and policy statements reflect the general
inappropriateness of considering the defendant’s education,
vocational skills, employment record, and family ties and
responsibilities in determining whether a term of imprisonment
should be imposed or the length of a term of imprisonment.
Historical Note: Effective November 1, 1987. Amended effective
November 1, 1990 (see Appendix C, amendment 357); November 1, 1991
(see Appendix C, amendment 386); November 1, 1994 (see Appendix C,
amendment 508) ; October 27, 2003 (see Appendix C, amendment 651).
§5H1.1. Age (Policy Statement)
Age (including youth) is not ordinarily relevant in determining
whether a departure is warranted. Age may be a reason to depart
downward in a case in which the defendant is elderly and infirm and
where a form of punishment such as home confinement might be
equally efficient as and less costly than incarceration. Physical
condition, which may be related to age, is addressed at §5H1.4
(Physical Condition, Including Drug or Alcohol Dependence or Abuse;
Gambling Addiction).
Historical Note: Effective November 1, 1987. Amended effective
November 1, 1991 (see Appendix C, amendment 386); November 1, 1993
(see Appendix C, amendment 475) ; October 27, 2003 (see Appendix C,
amendment 651); November 1, 2004 (see Appendix C, amendment 674).
§5H1.2. Education and Vocational Skills (Policy Statement)
Education and vocational skills are not ordinarily relevant in
determining whether a departure is warranted, but the extent to
which a defendant may have misused special training or education to
facilitate criminal activity is an express guideline factor. See
§3B1.3 (Abuse of Position of Trust or Use of Special Skill).
Education and vocational skills may be relevant in determining the
conditions of probation or supervised release for rehabilitative
purposes, for public protection by restricting activities that
allow for the utilization of a certain skill, or in determining the
appropriate type of community service.
Historical Note: Effective November 1, 1987. Amended effective
November 1, 1991 (see Appendix C, amendment 386) ; November 1, 2004
(see Appendix C, amendment 674).
§5H1.3. Mental and Emotional Conditions (Policy Statement)
Mental and emotional conditions are not ordinarily relevant in
determining whether a departure is warranted, except as provided in
Chapter Five, Part K, Subpart 2 (Other Grounds for Departure).
Mental and emotional conditions may be relevant in determining the
conditions of probation or supervised release; e.g., participation
in a mental health program (see §§5B1.3(d)(5) and 5D1.3(d)(5)).
Historical Note: Effective November 1, 1987. Amended effective
November 1, 1991 (see Appendix C, amendment 386); November 1, 1997
(see Appendix C, amendment 569) ; November 1, 2004 (see Appendix C,
amendment 674).
§5H1.4. Physical Condition, Including Drug or Alcohol Dependence or
Abuse; Gambling Addiction (Policy Statement)
Physical condition or appearance, including physique, is not
ordinarily relevant in determining whether a departure may be
warranted. However, an extraordinary physical impairment may be a
reason to depart downward; e.g., in the case of a seriously infirm
defendant, home detention may be as efficient as, and less costly
than, imprisonment.
Drug or alcohol dependence or abuse is not a reason for a downward
departure. Substance abuse is highly correlated to an increased
propensity to commit crime. Due to this increased risk, it is
highly recommended that a defendant who is incarcerated also be
sentenced to supervised release with a requirement that the
defendant participate in an appropriate substance abuse program
(see §5D1.3(d)(4)). If participation in a substance abuse program
is required, the length of supervised release should take into
account the length of time necessary for the supervisory body to
judge the success of the program.
Similarly, where a defendant who is a substance abuser is sentenced
to probation, it is strongly recommended that the conditions of
probation contain a requirement that the defendant participate in an appropriate substance abuse program
(see §5B1.3(d)(4)).
Addiction to gambling is not a reason for a downward departure.
Historical Note: Effective November 1, 1987. Amended effective
November 1, 1991 (see Appendix C, amendment 386); November 1, 1997
(see Appendix C, amendment 569) ; October 27, 2003 (see Appendix C,
amendment 651).
§5H1.5. Employment Record (Policy Statement)
Employment record is not ordinarily relevant in determining whether
a departure is warranted.
Employment record may be relevant in determining the conditions of
probation or supervised release (e.g., the appropriate hours of
home detention).
Historical Note: Effective November 1, 1987. Amended effective
November 1, 1991 (see Appendix C, amendment 386) ; November 1, 2004
(see Appendix C, amendment 674 ).
§5H1.6. Family Ties and Responsibilities (Policy Statement)
In sentencing a defendant convicted of an offense other than an
offense described in the following paragraph, family ties and
responsibilities are not ordinarily relevant in determining whether
a departure may be warranted.
In sentencing a defendant convicted of an offense involving a minor
victim under section 1201, an offense under section 1591, or an
offense under chapter 71, 109A, 110, or 117, of title 18, United
States Code, family ties and responsibilities and community ties
are not relevant in determining whether a sentence should be below
the applicable guideline range.
Family responsibilities that are complied with may be relevant to
the determination of the amount of restitution or fine.
Commentary
Application Note:
1. Circumstances to Consider.—
(A) In General.—In determining whether a departure is warranted
under this policy statement, the court shall consider the following
non-exhaustive list of circumstances:
(i) The seriousness of the offense.
(ii) The involvement in the offense, if any, of members of the
defendant’s family.
(iii) The danger, if any, to members of the defendant’s family as
a result of the offense.
(B) Departures Based on Loss of Caretaking or Financial Support.—A
departure under this policy statement based on the loss of
caretaking or financial support of the defendant’s family requires,
in addition to the court’s consideration of the non-exhaustive list
of circumstances in subdivision (A), the presence of the following
circumstances:
(i) The defendant’s service of a sentence within the applicable
guideline range will cause a substantial, direct, and specific loss
of essential caretaking, or essential financial support, to the
defendant’s family.
(ii) The loss of caretaking or financial support substantially
exceeds the harm ordinarily incident to incarceration for a
similarly situated defendant. For example, the fact that the
defendant’s family might incur some degree of financial hardship or
suffer to some extent from the absence of a parent through
incarceration is not in itself sufficient as a basis for departure
because such hardship or suffering is of a sort ordinarily incident
to incarceration.
(iii) The loss of caretaking or financial support is one for which
no effective remedial or ameliorative programs reasonably are
available, making the defendant’s caretaking or financial support
irreplaceable to the defendant’s family.
(iv) The departure effectively will address the loss of caretaking
or financial support.
Background: Section 401(b)(4) of Public Law 108–21 directly amended
this policy statement to add the second paragraph, effective April
30, 2003.
Historical Note: Effective November 1, 1987. Amended effective
November 1, 1991 (see Appendix C, amendment 386); April 30, 2003
(see Appendix C, amendment 649); October 27, 2003 (see Appendix C,
amendment 651) ; November 1, 2004 (see Appendix C, amendment 674)
.
§5H1.7. Role in the Offense (Policy Statement)
A defendant’s role in the offense is relevant in determining the
applicable guideline range (see Chapter Three, Part B (Role in the
Offense)) but is not a basis for departing from that range (see
subsection (d) of §5K2.0 (Grounds for Departures)).
Historical Note: Effective November 1, 1987. Amended effective
October 27, 2003 (see Appendix C, amendment 651).
§5H1.8. Criminal History (Policy Statement)
A defendant’s criminal history is relevant in determining the
applicable criminal history category. See Chapter Four (Criminal
History and Criminal Livelihood). For grounds of departure based on
the defendant’s criminal history, see §4A1.3 (Departures Based on
Inadequacy of Criminal History Category).
Historical Note: Effective November 1, 1987. Amended effective
October 27, 2003 (see Appendix C, amendment 651).
§5H1.9. Dependence upon Criminal Activity for a Livelihood (Policy
Statement)
The degree to which a defendant depends upon criminal activity for
a livelihood is relevant in determining the appropriate sentence. See Chapter Four,
Part B (Career Offenders and Criminal Livelihood).
Historical Note: Effective November 1, 1987.
§5H1.10. Race, Sex, National Origin, Creed, Religion, and Socio-Economic Status (Policy Statement)
These factors are not relevant in the determination of a sentence.
Historical Note: Effective November 1, 1987.
§5H1.11. Military, Civic, Charitable, or Public Service;
Employment-Related Contributions; Record of Prior Good Works
(Policy Statement)
Military, civic, charitable, or public service; employment-related
contributions; and similar prior good works are not ordinarily
relevant in determining whether a departure is warranted.
Historical Note: Effective November 1, 1991 (see Appendix C,
amendment 386). Amended effective November 1, 2004 (see Appendix C,
amendment 674).
§5H1.12. Lack of Guidance as a Youth and Similar Circumstances
(Policy Statement)
Lack of guidance as a youth and similar circumstances indicating a
disadvantaged upbringing are not relevant grounds in determining
whether a departure is warranted.
Historical Note: Effective November 1, 1992 (see Appendix C,
amendment 466). Amended effective November 1, 2004 (see Appendix C,
amendment 674).
PART J - RELIEF FROM DISABILITY
Historical Note: Effective November 1, 1987. Amended effective June
15, 1988 (see Appendix C, amendment 55).
§5J1.1. Relief from Disability Pertaining to Convicted Persons
Prohibited from Holding Certain Positions (Policy Statement)
A collateral consequence of conviction of certain crimes described
in 29 U.S.C. §§ 504 and 1111 is the prohibition of convicted
persons from service and employment with labor unions, employer
associations, employee pension and welfare benefit plans, and as
labor relations consultants in the private sector. A convicted
person’s prohibited service or employment in such capacities
without having been granted one of the following three statutory
procedures of administrative or judicial relief is subject to
criminal prosecution. First, a disqualified person whose
citizenship rights have been fully restored to him or her in the
jurisdiction of conviction, following the revocation of such rights
as a result of the disqualifying conviction, is relieved of the
disability. Second, a disqualified person convicted after October
12, 1984, may petition the sentencing court to reduce the statutory
length of disability (thirteen years after date of sentencing or
release from imprisonment, whichever is later) to a lesser period
(not less than three years after date of conviction or release from
imprisonment, whichever is later). Third, a disqualified person may
petition either the United States Parole Commission or a United
States District Court judge to exempt his or her service or
employment in a particular prohibited capacity pursuant to the
procedures set forth in 29 U.S.C. §§ 504(a)(B) and 1111(a)(B). In
the case of a person convicted of a disqualifying crime committed
before November 1, 1987, the United States Parole Commission will
continue to process such exemption applications.
In the case of a person convicted of a disqualifying crime
committed on or after November 1, 1987, however, a petition for
exemption from disability must be directed to a United States
District Court. If the petitioner was convicted of a disqualifying
federal offense, the petition is directed to the sentencing judge.
If the petitioner was convicted of a disqualifying state or local
offense, the petition is directed to the United States District
Court for the district in which the offense was committed. In such
cases, relief shall not be given to aid rehabilitation, but may be
granted only following a clear demonstration by the convicted
person that he or she has been rehabilitated since commission of
the disqualifying crime and can therefore be trusted not to
endanger the organization in the position for which he or she seeks
relief from disability.
Historical Note: Effective November 1, 1987. Amended effective June
15, 1988 (see Appendix C, amendment 56).
PART K - DEPARTURES
1. SUBSTANTIAL ASSISTANCE TO AUTHORITIES
§5K1.1. Substantial Assistance to Authorities (Policy Statement)
Upon motion of the government stating that the defendant has
provided substantial assistance in the investigation or prosecution
of another person who has committed an offense, the court may
depart from the guidelines.
(a) The appropriate reduction shall be determined by the court for
reasons stated that may include, but are not limited to,
consideration of the following:
(1) the court’s evaluation of the significance and usefulness of
the defendant’s assistance, taking into consideration the
government’s evaluation of the assistance rendered;
(2) the truthfulness, completeness, and reliability of any
information or testimony provided by the defendant;
(3) the nature and extent of the defendant’s assistance;
(4) any injury suffered, or any danger or risk of injury to the
defendant or his family resulting from his assistance;
(5) the timeliness of the defendant’s assistance.
Commentary
Application Notes:
1. Under circumstances set forth in 18 U.S.C. § 3553(e) and 28
U.S.C. § 994(n), as amended, substantial assistance in the
investigation or prosecution of another person who has committed an
offense may justify a sentence below a statutorily required minimum
sentence.
2. The sentencing reduction for assistance to authorities shall be
considered independently of any reduction for acceptance of
responsibility. Substantial assistance is directed to the
investigation and prosecution of criminal activities by persons
other than the defendant, while acceptance of responsibility is
directed to the defendant’s affirmative recognition of
responsibility for his own conduct.
3. Substantial weight should be given to the government’s
evaluation of the extent of the defendant’s assistance,
particularly where the extent and value of the assistance are
difficult to ascertain.
Background: A defendant’s assistance to authorities in the
investigation of criminal activities has been recognized in
practice and by statute as a mitigating sentencing factor. The
nature, extent, and significance of assistance can involve a broad
spectrum of conduct that must be evaluated by the court on an
individual basis. Latitude is, therefore, afforded the sentencing
judge to reduce a sentence based upon variable relevant factors,
including those listed above. The sentencing judge must, however,
state the reasons for reducing a sentence under this section. 18
U.S.C. § 3553(c). The court may elect to provide its reasons to the
defendant in camera and in writing under seal for the safety of the
defendant or to avoid disclosure of an ongoing investigation.
Historical Note: Effective November 1, 1987. Amended effective
November 1, 1989 (see Appendix C, amendment 290).
§5K1.2. Refusal to Assist (Policy Statement)
A defendant’s refusal to assist authorities in the investigation of
other persons may not be considered as an aggravating sentencing
factor.
Historical Note: Effective November 1, 1987. Amended effective
November 1, 1989 (see Appendix C, amendment 291).
* * * * *
2. OTHER GROUNDS FOR DEPARTURE
Historical Note: Effective November 1, 1987. Amended effective
November 1, 1990 (see Appendix C, amendment 358).
§5K2.0. Grounds for Departure (Policy Statement)
(a) UPWARD DEPARTURES IN GENERAL AND DOWNWARD DEPARTURES IN
CRIMINAL CASES OTHER THAN CHILD CRIMES AND SEXUAL OFFENSES.—
(1) IN GENERAL.—The sentencing court may depart from the applicable
guideline range if—
(A) in the case of offenses other than child crimes and sexual
offenses, the court finds, pursuant to 18 U.S.C. § 3553(b)(1), that
there exists an aggravating or mitigating circumstance; or
(B) in the case of child crimes and sexual offenses, the court
finds, pursuant to 18 U.S.C. § 3553(b)(2)(A)(i), that there exists
an aggravating circumstance, of a kind, or to a degree, not adequately taken into consideration
by the Sentencing Commission in formulating the guidelines that, in
order to advance the objectives set forth in 18 U.S.C. §
3553(a)(2), should result in a sentence different from that
described.
(2) DEPARTURES BASED ON CIRCUMSTANCES OF A KIND NOT ADEQUATELY
TAKEN INTO CONSIDERATION.—
(A) IDENTIFIED CIRCUMSTANCES.—This subpart (Chapter Five, Part K,
Subpart 2 (Other Grounds for Departure)) identifies some of the
circumstances that the Commission may have not adequately taken
into consideration in determining the applicable guideline range
(e.g., as a specific offense characteristic or other adjustment).
If any such circumstance is present in the case and has not
adequately been taken into consideration in determining the
applicable guideline range, a departure consistent with 18 U.S.C.
§ 3553(b) and the provisions of this subpart may be warranted.
(B) UNIDENTIFIED CIRCUMSTANCES.—A departure may be warranted in the
exceptional case in which there is present a circumstance that the
Commission has not identified in the guidelines but that
nevertheless is relevant to determining the appropriate sentence.
(3) DEPARTURES BASED ON CIRCUMSTANCES PRESENT TO A DEGREE NOT
ADEQUATELY TAKEN INTO CONSIDERATION.—A departure may be warranted
in an exceptional case, even though the circumstance that forms the
basis for the departure is taken into consideration in determining
the guideline range, if the court determines that such circumstance
is present in the offense to a degree substantially in excess of,
or substantially below, that which ordinarily is involved in that
kind of offense.
(4) DEPARTURES BASED ON NOT ORDINARILY RELEVANT OFFENDER
CHARACTERISTICS AND OTHER CIRCUMSTANCES.—An offender characteristic
or other circumstance identified in Chapter Five, Part H (Offender
Characteristics) or elsewhere in the guidelines as not ordinarily
relevant in determining whether a departure is warranted may be
relevant to this determination only if such offender characteristic
or other circumstance is present to an exceptional degree.
(b) DOWNWARD DEPARTURES IN CHILD CRIMES AND SEXUAL OFFENSES.—Under
18 U.S.C. § 3553(b)(2)(A)(ii), the sentencing court may impose a
sentence below the range established by the applicable guidelines
only if the court finds that there exists a mitigating circumstance
of a kind, or to a degree, that—
(1) has been affirmatively and specifically identified as a
permissible ground of downward departure in the sentencing
guidelines or policy statements issued under section 994(a) of
title 28, United States Code, taking account of any amendments to
such sentencing guidelines or policy statements by act of Congress;
(2) has not adequately been taken into consideration by the
Sentencing Commission in formulating the guidelines; and
(3) should result in a sentence different from that described.
The grounds enumerated in this Part K of Chapter Five are the sole
grounds that have been affirmatively and specifically identified as
a permissible ground of downward departure in these sentencing
guidelines and policy statements. Thus, notwithstanding any other
reference to authority to depart downward elsewhere in this
Sentencing Manual, a ground of downward departure has not been
affirmatively and specifically identified as a permissible ground
of downward departure within the meaning of section 3553(b)(2)
unless it is expressly enumerated in this Part K as a ground upon
which a downward departure may be granted.
(c) LIMITATION ON DEPARTURES BASED ON MULTIPLE CIRCUMSTANCES.—The
court may depart from the applicable guideline range based on a
combination of two or more offender characteristics or other
circumstances, none of which independently is sufficient to provide
a basis for departure, only if—
(1) such offender characteristics or other circumstances, taken
together, make the case an exceptional one; and
(2) each such offender characteristic or other circumstance is—
(A) present to a substantial degree; and
(B) identified in the guidelines as a permissible ground for
departure, even if such offender characteristic or other
circumstance is not ordinarily relevant to a determination of
whether a departure is warranted.
(d) PROHIBITED DEPARTURES.—Notwithstanding subsections (a) and (b)
of this policy statement, or any other provision in the guidelines,
the court may not depart from the applicable guideline range based
on any of the following circumstances:
(1) Any circumstance specifically prohibited as a ground for
departure in §§5H1.10 (Race, Sex, National Origin, Creed, Religion,
and Socio-Economic Status), 5H1.12 (Lack of Guidance as a Youth and
Similar Circumstances), the third and last sentences of 5H1.4
(Physical Condition, Including Drug or Alcohol Dependence or Abuse;
Gambling Addiction), the last sentence of 5K2.12 (Coercion and
Duress), and 5K2.19 (Post-Sentencing Rehabilitative Efforts).
(2) The defendant’s acceptance of responsibility for the offense,
which may be taken into account only under §3E1.1 (Acceptance of
Responsibility).
(3) The defendant’s aggravating or mitigating role in the offense,
which may be taken into account only under §3B1.1 (Aggravating
Role) or §3B1.2 (Mitigating Role), respectively.
(4) The defendant’s decision, in and of itself, to plead guilty to
the offense or to enter a plea agreement with respect to the
offense (i.e., a departure may not be based merely on the fact that
the defendant decided to plead guilty or to enter into a plea
agreement, but a departure may be based on justifiable, non-prohibited reasons as part of a sentence that is recommended, or
agreed to, in the plea agreement and accepted by the court. See §6B1.2 (Standards for Acceptance of Plea Agreement).
(5) The defendant’s fulfillment of restitution obligations only to
the extent required by law including the guidelines (i.e., a
departure may not be based on unexceptional efforts to remedy the
harm caused by the offense).
(6) Any other circumstance specifically prohibited as a ground for
departure in the guidelines.
(e) REQUIREMENT OF SPECIFIC WRITTEN REASONS FOR DEPARTURE.—If the
court departs from the applicable guideline range, it shall state,
pursuant to 18 U.S.C. § 3553(c), its specific reasons for departure
in open court at the time of sentencing and, with limited exception
in the case of statements received in camera, shall state those
reasons with specificity in the written judgment and commitment
order.
Commentary
Application Notes:
1. Definitions.—For purposes of this policy statement:
"Circumstance" includes, as appropriate, an offender characteristic
or any other offense factor.
"Depart", "departure", "downward departure", and "upward departure"
have the meaning given those terms in Application Note 1 of the
Commentary to §1B1.1 (Application Instructions).
2. Scope of this Policy Statement.—
(A) Departures Covered by this Policy Statement.—This policy
statement covers departures from the applicable guideline range
based on offense characteristics or offender characteristics of a
kind, or to a degree, not adequately taken into consideration in
determining that range. See 18 U.S.C. § 3553(b).
Subsection (a) of this policy statement applies to upward
departures in all cases covered by the guidelines and to downward
departures in all such cases except for downward departures in
child crimes and sexual offenses.
Subsection (b) of this policy statement applies only to downward
departures in child crimes and sexual offenses.
(B) Departures Covered by Other Guidelines.—This policy statement
does not cover the following departures, which are addressed
elsewhere in the guidelines: (i) departures based on the
defendant’s criminal history (see Chapter Four (Criminal History
and Criminal Livelihood), particularly §4A1.3 (Departures Based on
Inadequacy of Criminal History Category)); (ii) departures based on
the defendant’s substantial assistance to the authorities (see §5K1.1 (Substantial Assistance to Authorities)); and (iii)
departures based on early disposition programs (see §5K3.1 (Early
Disposition Programs)).
3. Kinds and Expected Frequency of Departures under Subsection
(a).—As set forth in subsection (a), there generally are two kinds
of departures from the guidelines based on offense characteristics
and/or offender characteristics: (A) departures based on
circumstances of a kind not adequately taken into consideration in
the guidelines; and (B) departures based on circumstances that are
present to a degree not adequately taken into consideration in the
guidelines.
(A) Departures Based on Circumstances of a Kind Not Adequately
Taken into Account in Guidelines.—Subsection (a)(2) authorizes the
court to depart if there exists an aggravating or a mitigating
circumstance in a case under 18 U.S.C. § 3553(b)(1), or an
aggravating circumstance in a case under 18 U.S.C. §
3553(b)(2)(A)(i), of a kind not adequately taken into consideration
in the guidelines.
(i) Identified Circumstances.—This subpart (Chapter Five, Part K,
Subpart 2) identifies several circumstances that the Commission may
have not adequately taken into consideration in setting the offense
level for certain cases. Offense guidelines in Chapter Two (Offense
Conduct) and adjustments in Chapter Three (Adjustments) sometimes
identify circumstances the Commission may have not adequately taken
into consideration in setting the offense level for offenses
covered by those guidelines. If the offense guideline in Chapter
Two or an adjustment in Chapter Three does not adequately take that
circumstance into consideration in setting the offense level for
the offense, and only to the extent not adequately taken into
consideration, a departure based on that circumstance may be
warranted.
(ii) Unidentified Circumstances.—A case may involve circumstances,
in addition to those identified by the guidelines, that have not
adequately been taken into consideration by the Commission, and the
presence of any such circumstance may warrant departure from the
guidelines in that case. However, inasmuch as the Commission has
continued to monitor and refine the guidelines since their
inception to take into consideration relevant circumstances in
sentencing, it is expected that departures based on such
unidentified circumstances will occur rarely and only in
exceptional cases.
(B) Departures Based on Circumstances Present to a Degree Not
Adequately Taken into Consideration in Guidelines.—
(i) In General.—Subsection (a)(3) authorizes the court to depart if
there exists an aggravating or a mitigating circumstance in a case
under 18 U.S.C. § 3553(b)(1), or an aggravating circumstance in a
case under 18 U.S.C. § 3553(b)(2)(A)(i), to a degree not adequately
taken into consideration in the guidelines. However, inasmuch as
the Commission has continued to monitor and refine the guidelines
since their inception to determine the most appropriate weight to
be accorded the mitigating and aggravating circumstances specified
in the guidelines, it is expected that departures based on the
weight accorded to any such circumstance will occur rarely and only
in exceptional cases.
(ii) Examples.—As set forth in subsection (a)(3), if the applicable
offense guideline and adjustments take into consideration a
circumstance identified in this subpart, departure is warranted
only if the circumstance is present to a degree substantially in
excess of that which ordinarily is involved in the offense.
Accordingly, a departure pursuant to §5K2.7 for the disruption of
a governmental function would have to be substantial to warrant
departure from the guidelines when the applicable offense guideline
is bribery or obstruction of justice. When the guideline covering
the mailing of injurious articles is applicable, however, and the
offense caused disruption of a governmental function, departure
from the applicable guideline range more readily would be
appropriate. Similarly, physical injury would not warrant departure
from the guidelines when the robbery offense guideline is
applicable because the robbery guideline includes a specific
adjustment based on the extent of any injury. However, because the
robbery guideline does not deal with injury to more than one
victim, departure may be warranted if several persons were injured.
(C) Departures Based on Circumstances Identified as Not Ordinarily
Relevant.—Because certain circumstances are specified in the
guidelines as not ordinarily relevant to sentencing (see, e.g.,
Chapter Five, Part H (Specific Offender Characteristics)), a
departure based on any one of such circumstances should occur only
in exceptional cases, and only if the circumstance is present in
the case to an exceptional degree. If two or more of such
circumstances each is present in the case to a substantial degree,
however, and taken together make the case an exceptional one, the
court may consider whether a departure would be warranted pursuant
to subsection (c). Departures based on a combination of not
ordinarily relevant circumstances that are present to a substantial
degree should occur extremely rarely and only in exceptional cases.
In addition, as required by subsection (e), each circumstance
forming the basis for a departure described in this subdivision
shall be stated with specificity in the written judgment and
commitment order.
4. Downward Departures in Child Crimes and Sexual Offenses.—
(A) Definition.—For purposes of this policy statement, the term
"child crimes and sexual offenses" means offenses under any of the
following: 18 U.S.C. § 1201 (involving a minor victim), 18 U.S.C.
§ 1591, or chapter 71, 109A, 110, or 117 of title 18, United States
Code.
(B) Standard for Departure.—
(i) Requirement of Affirmative and Specific Identification of
Departure Ground.—The standard for a downward departure in child
crimes and sexual offenses differs from the standard for other
departures under this policy statement in that it includes a
requirement, set forth in 18 U.S.C. § 3553(b)(2)(A)(ii)(I) and
subsection (b)(1) of this guideline, that any mitigating
circumstance that forms the basis for such a downward departure be
affirmatively and specifically identified as a ground for downward
departure in this part (i.e., Chapter Five, Part K).
(ii) Application of Subsection (b)(2).—The commentary in
Application Note 3 of this policy statement, except for the
commentary in Application Note 3(A)(ii) relating to unidentified
circumstances, shall apply to the court’s determination of whether
a case meets the requirement, set forth in subsection 18 U.S.C.
§ 3553(b)(2)(A)(ii)(II) and subsection (b)(2) of this policy
statement, that the mitigating circumstance forming the basis for
a downward departure in child crimes and sexual offenses be of
kind, or to a degree, not adequately taken into consideration by
the Commission.
5. Departures Based on Plea Agreements.—Subsection (d)(4) prohibits
a downward departure based only on the defendant’s decision, in and
of itself, to plead guilty to the offense or to enter a plea
agreement with respect to the offense. Even though a departure may
not be based merely on the fact that the defendant agreed to plead
guilty or enter a plea agreement, a departure may be based on
justifiable, non-prohibited reasons for departure as part of a
sentence that is recommended, or agreed to, in the plea agreement
and accepted by the court. See §6B1.2 (Standards for Acceptance of
Plea Agreements). In cases in which the court departs based on such
reasons as set forth in the plea agreement, the court must state
the reasons for departure with specificity in the written judgment
and commitment order, as required by subsection (e).
Background: This policy statement sets forth the standards for
departing from the applicable guideline range based on offense and
offender characteristics of a kind, or to a degree, not adequately
considered by the Commission. Circumstances the Commission has
determined are not ordinarily relevant to determining whether a
departure is warranted or are prohibited as bases for departure are
addressed in Chapter Five, Part H (Offender Characteristics) and in
this policy statement. Other departures, such as those based on the
defendant’s criminal history, the defendant’s substantial
assistance to authorities, and early disposition programs, are
addressed elsewhere in the guidelines.
As acknowledged by Congress in the Sentencing Reform Act and by the
Commission when the first set of guidelines was promulgated, "it is
difficult to prescribe a single set of guidelines that encompasses
the vast range of human conduct potentially relevant to a
sentencing decision." (See Historical Note to §1A1.1 (Authority)).
Departures, therefore, perform an integral function in the
sentencing guideline system. Departures permit courts to impose an
appropriate sentence in the exceptional case in which mechanical
application of the guidelines would fail to achieve the statutory
purposes and goals of sentencing. Departures also help maintain
"sufficient flexibility to permit individualized sentences when
warranted by mitigating or aggravating factors not taken into
account in the establishment of general sentencing practices." 28
U.S.C. § 991(b)(1)(B). By monitoring when courts depart from the
guidelines and by analyzing their stated reasons for doing so,
along with appellate cases reviewing these departures, the
Commission can further refine the guidelines to specify more
precisely when departures should and should not be permitted.
As reaffirmed in the Prosecutorial Remedies and Other Tools to end
the Exploitation of Children Today Act of 2003 (the "PROTECT Act",
Public Law 108–21), circumstances warranting departure should be
rare. Departures were never intended to permit sentencing courts to
substitute their policy judgments for those of Congress and the
Sentencing Commission. Departure in such circumstances would
produce unwarranted sentencing disparity, which the Sentencing
Reform Act was designed to avoid.
In order for appellate courts to fulfill their statutory duties
under 18 U.S.C. § 3742 and for the Commission to fulfill its
ongoing responsibility to refine the guidelines in light of
information it receives on departures, it is essential that
sentencing courts state with specificity the reasons for departure,
as required by the PROTECT Act.
This policy statement, including its commentary, was substantially
revised, effective October 27, 2003, in response to directives
contained in the PROTECT Act, particularly the directive in section
401(m) of that Act to—
"(1) review the grounds of downward departure that are authorized
by the sentencing guidelines, policy statements, and official
commentary of the Sentencing Commission; and
(2) promulgate, pursuant to section 994 of title 28, United States
Code—
(A) appropriate amendments to the sentencing guidelines, policy
statements, and official commentary to ensure that the incidence of
downward departures is substantially reduced;
(B) a policy statement authorizing a departure pursuant to an early
disposition program; and
(C) any other conforming amendments to the sentencing guidelines,
policy statements, and official commentary of the Sentencing
Commission necessitated by the Act, including a revision of
...section 5K2.0".
The substantial revision of this policy statement in response to
the PROTECT Act was intended to refine the standards applicable to
departures while giving due regard for concepts, such as the
"heartland", that have evolved in departure jurisprudence over
time.
Section 401(b)(1) of the PROTECT Act directly amended this policy
statement to add subsection (b), effective April 30, 2003.
Historical Note: Effective November 1, 1987. Amended effective June
15, 1988 (see Appendix C, amendment 57); November 1, 1990 (see
Appendix C, amendment 358); November 1, 1994 (see Appendix C,
amendment 508); November 1, 1997 (see Appendix C, amendment 561);
November 1, 1998 (see Appendix C, amendment 585); April 30, 2003
(see Appendix C, amendment 649) ; October 27, 2003 (see Appendix C,
amendment 651) .
§5K2.1. Death (Policy Statement)
If death resulted, the court may increase the sentence above the
authorized guideline range.
Loss of life does not automatically suggest a sentence at or near
the statutory maximum. The sentencing judge must give consideration
to matters that would normally distinguish among levels of
homicide, such as the defendant’s state of mind and the degree of
planning or preparation. Other appropriate factors are whether
multiple deaths resulted, and the means by which life was taken.
The extent of the increase should depend on the dangerousness of
the defendant’s conduct, the extent to which death or serious
injury was intended or knowingly risked, and the extent to which
the offense level for the offense of conviction, as determined by
the other Chapter Two guidelines, already reflects the risk of
personal injury. For example, a substantial increase may be
appropriate if the death was intended or knowingly risked or if the
underlying offense was one for which base offense levels do not
reflect an allowance for the risk of personal injury, such as
fraud.
Historical Note: Effective November 1, 1987.
§5K2.2. Physical Injury (Policy Statement)
If significant physical injury resulted, the court may increase the
sentence above the authorized guideline range. The extent of the
increase ordinarily should depend on the extent of the injury, the
degree to which it may prove permanent, and the extent to which the
injury was intended or knowingly risked. When the victim suffers a
major, permanent disability and when such injury was intentionally
inflicted, a substantial departure may be appropriate. If the
injury is less serious or if the defendant (though criminally
negligent) did not knowingly create the risk of harm, a less
substantial departure would be indicated. In general, the same
considerations apply as in §5K2.1.
Historical Note: Effective November 1, 1987.
§5K2.3. Extreme Psychological Injury (Policy Statement)
If a victim or victims suffered psychological injury much more
serious than that normally resulting from commission of the
offense, the court may increase the sentence above the authorized
guideline range. The extent of the increase ordinarily should depend on the severity of the psychological injury and the extent
to which the injury was intended or knowingly risked.
Normally, psychological injury would be sufficiently severe to
warrant application of this adjustment only when there is a
substantial impairment of the intellectual, psychological,
emotional, or behavioral functioning of a victim, when the
impairment is likely to be of an extended or continuous duration,
and when the impairment manifests itself by physical or
psychological symptoms or by changes in behavior patterns. The
court should consider the extent to which such harm was likely,
given the nature of the defendant’s conduct.
Historical Note: Effective November 1, 1987.
§5K2.4. Abduction or Unlawful Restraint (Policy Statement)
If a person was abducted, taken hostage, or unlawfully restrained
to facilitate commission of the offense or to facilitate the escape
from the scene of the crime, the court may increase the sentence
above the authorized guideline range.
Historical Note: Effective November 1, 1987.
§5K2.5. Property Damage or Loss (Policy Statement)
If the offense caused property damage or loss not taken into
account within the guidelines, the court may increase the sentence
above the authorized guideline range. The extent of the increase
ordinarily should depend on the extent to which the harm was
intended or knowingly risked and on the extent to which the harm to
property is more serious than other harm caused or risked by the
conduct relevant to the offense of conviction.
Historical Note: Effective November 1, 1987.
§5K2.6. Weapons and Dangerous Instrumentalities (Policy Statement)
If a weapon or dangerous instrumentality was used or possessed in
the commission of the offense the court may increase the sentence
above the authorized guideline range. The extent of the increase
ordinarily should depend on the dangerousness of the weapon, the manner in which it was used, and the extent to which its use
endangered others. The discharge of a firearm might warrant a substantial sentence
increase.
Historical Note: Effective November 1, 1987.
§5K2.7. Disruption of Governmental Function (Policy Statement)
If the defendant’s conduct resulted in a significant disruption of
a governmental function, the court may increase the sentence above
the authorized guideline range to reflect the nature and extent of
the disruption and the importance of the governmental function
affected. Departure from the guidelines ordinarily would not be
justified when the offense of conviction is an offense such as
bribery or obstruction of justice; in such cases interference with
a governmental function is inherent in the offense, and unless the
circumstances are unusual the guidelines will reflect the
appropriate punishment for such interference.
Historical Note: Effective November 1, 1987.
§5K2.8. Extreme Conduct (Policy Statement)
If the defendant’s conduct was unusually heinous, cruel, brutal, or
degrading to the victim, the court may increase the sentence above
the guideline range to reflect the nature of the conduct. Examples
of extreme conduct include torture of a victim, gratuitous
infliction of injury, or prolonging of pain or humiliation.
Historical Note: Effective November 1, 1987.
§5K2.9. Criminal Purpose (Policy Statement)
If the defendant committed the offense in order to facilitate or
conceal the commission of another offense, the court may increase
the sentence above the guideline range to reflect the actual
seriousness of the defendant’s conduct.
Historical Note: Effective November 1, 1987.
§5K2.10. Victim’s Conduct (Policy Statement)
If the victim’s wrongful conduct contributed significantly to
provoking the offense behavior, the court may reduce the sentence
below the guideline range to reflect the nature and circumstances
of the offense. In deciding whether a sentence reduction is
warranted, and the extent of such reduction, the court should
consider the following:
(1) The size and strength of the victim, or other relevant physical
characteristics, in comparison with those of the defendant.
(2) The persistence of the victim’s conduct and any efforts by the
defendant to prevent confrontation.
(3) The danger reasonably perceived by the defendant, including the
victim’s reputation for violence.
(4) The danger actually presented to the defendant by the victim.
(5) Any other relevant conduct by the victim that substantially
contributed to the danger presented.
(6) The proportionality and reasonableness of the defendant’s
response to the victim’s provocation.
Victim misconduct ordinarily would not be sufficient to warrant
application of this provision in the context of offenses under
Chapter Two, Part A, Subpart 3 (Criminal Sexual Abuse). In
addition, this provision usually would not be relevant in the
context of non-violent offenses. There may, however, be unusual
circumstances in which substantial victim misconduct would warrant
a reduced penalty in the case of a non-violent offense. For
example, an extended course of provocation and harassment might
lead a defendant to steal or destroy property in retaliation.
Historical Note: Effective November 1, 1987. Amended effective
October 27, 2003 (see Appendix C, amendment 651).
§5K2.11. Lesser Harms (Policy Statement)
Sometimes, a defendant may commit a crime in order to avoid a
perceived greater harm. In such instances, a reduced sentence may
be appropriate, provided that the circumstances significantly
diminish society’s interest in punishing the conduct, for example,
in the case of a mercy killing. Where the interest in punishment or
deterrence is not reduced, a reduction in sentence is not
warranted. For example, providing defense secrets to a hostile
power should receive no lesser punishment simply because the
defendant believed that the government’s policies were misdirected.
In other instances, conduct may not cause or threaten the harm or
evil sought to be prevented by the law proscribing the offense at
issue. For example, where a war veteran possessed a machine gun or
grenade as a trophy, or a school teacher possessed controlled
substances for display in a drug education program, a reduced
sentence might be warranted.
Historical Note: Effective November 1, 1987.
§5K2.12. Coercion and Duress (Policy Statement)
If the defendant committed the offense because of serious coercion,
blackmail or duress, under circumstances not amounting to a
complete defense, the court may depart downward. The extent of the
decrease ordinarily should depend on the reasonableness of the
defendant’s actions, on the proportionality of the defendant’s
actions to the seriousness of coercion, blackmail, or duress
involved, and on the extent to which the conduct would have been
less harmful under the circumstances as the defendant believed them
to be. Ordinarily coercion will be sufficiently serious to warrant
departure only when it involves a threat of physical injury,
substantial damage to property or similar injury resulting from the
unlawful action of a third party or from a natural emergency.
Notwithstanding this policy statement, personal financial
difficulties and economic pressures upon a trade or business do not
warrant a downward departure.
Historical Note: Effective November 1, 1987. Amended effective
October 27, 2003 (see Appendix C, amendment 651); November 1, 2004
(see Appendix C, 674).
§5K2.13. Diminished Capacity (Policy Statement)
A downward departure may be warranted if (1) the defendant
committed the offense while suffering from a significantly reduced
mental capacity; and (2) the significantly reduced mental capacity
contributed substantially to the commission of the offense.
Similarly, if a departure is warranted under this policy statement,
the extent of the departure should reflect the extent to which the
reduced mental capacity contributed to the commission of the
offense.
However, the court may not depart below the applicable guideline
range if (1) the significantly reduced mental capacity was caused
by the voluntary use of drugs or other intoxicants; (2) the facts
and circumstances of the defendant’s offense indicate a need to
protect the public because the offense involved actual violence or
a serious threat of violence; (3) the defendant’s criminal history
indicates a need to incarcerate the defendant to protect the
public; or (4) the defendant has been convicted of an offense under
chapter 71, 109A, 110, or 117, of title 18, United States Code.
Commentary
Application Note:
1. For purposes of this policy statement—
"Significantly reduced mental capacity" means the defendant,
although convicted, has a significantly impaired ability to (A)
understand the wrongfulness of the behavior comprising the offense
or to exercise the power of reason; or (B) control behavior that
the defendant knows is wrongful.
Background: Section 401(b)(5) of Public Law 108–21 directly amended
this policy statement to add subdivision (4), effective April 30,
2003.
Historical Note: Effective November 1, 1987. Amended effective
November 1, 1998 (see Appendix C, amendment 583); April 30, 2003
(see Appendix C, amendment 649); October 27, 2003 (see Appendix C,
amendment 651) ; November 1, 2004 (see Appendix C, amendment 674)
.
§5K2.14. Public Welfare (Policy Statement)
If national security, public health, or safety was significantly
endangered, the court may depart upward to reflect the nature and
circumstances of the offense.
Historical Note: Effective November 1, 1987. Amended effective
November 1, 2004 (see Appendix C, amendment 674).
§5K2.15. [Deleted]
Historical Note: Effective November 1, 1989 (see Appendix C,
amendment 292), was deleted effective November 1, 1995 (see
Appendix C, amendment 526).
§5K2.16. Voluntary Disclosure of Offense (Policy Statement)
If the defendant voluntarily discloses to authorities the existence
of, and accepts responsibility for, the offense prior to the
discovery of such offense, and if such offense was unlikely to have
been discovered otherwise, a downward departure may be warranted.
For example, a downward departure under this section might be
considered where a defendant, motivated by remorse, discloses an
offense that otherwise would have remained undiscovered. This
provision does not apply where the motivating factor is the
defendant’s knowledge that discovery of the offense is likely or
imminent, or where the defendant’s disclosure occurs in connection
with the investigation or prosecution of the defendant for related
conduct.
Historical Note: Effective November 1, 1991 (see Appendix C,
amendment 420). Amended effective November 1, 2004 (see Appendix C,
amendment 674).
§5K2.17. Semiautomatic Firearms Capable of Accepting Large Capacity
Magazine (Policy Statement)
If the defendant possessed a semiautomatic firearm capable of
accepting a large capacity magazine in connection with a crime of
violence or controlled substance offense, an upward departure may
be warranted. A "semiautomatic firearm capable of accepting a large
capacity magazine" means a semiautomatic firearm that has the
ability to fire many rounds without reloading because at the time
of the offense (A) the firearm had attached to it a magazine or
similar device that could accept more than 15 rounds of ammunition;
or (B) a magazine or similar device that could accept more than 15
rounds of ammunition was in close proximity to the firearm. The
extent of any increase should depend upon the degree to which the
nature of the weapon increased the likelihood of death or injury in
the circumstances of the particular case.
Commentary
Application Note:
1. "Crime of violence" and "controlled substance offense" are
defined in §4B1.2 (Definitions of Terms Used in Section 4B1.1).
Historical Note: Effective November 1, 1995 (see Appendix C,
amendment 531). Amended effective November 1, 2006 (see Appendix C,
amendment 691).
§5K2.18. Violent Street Gangs (Policy Statement)
If the defendant is subject to an enhanced sentence under 18 U.S.C.
§ 521 (pertaining to criminal street gangs), an upward departure
may be warranted. The purpose of this departure provision is to
enhance the sentences of defendants who participate in groups,
clubs, organizations, or associations that use violence to further
their ends. It is to be noted that there may be cases in which 18
U.S.C. § 521 applies, but no violence is established. In such cases, it is expected that the guidelines will
account adequately for the conduct and, consequently, this
departure provision would not apply.
Historical Note: Effective November 1, 1995 (see Appendix C,
amendment 532).
§5K2.19. Post-Sentencing Rehabilitative Efforts (Policy Statement)
Post-sentencing rehabilitative efforts, even if exceptional,
undertaken by a defendant after imposition of a term of
imprisonment for the instant offense are not an appropriate basis
for a downward departure when resentencing the defendant for that
offense. (Such efforts may provide a basis for early termination of
supervised release under 18 U.S.C. § 3583(e)(1).)
Commentary
Background: The Commission has determined that post-sentencing
rehabilitative measures should not provide a basis for downward
departure when resentencing a defendant initially sentenced to a
term of imprisonment because such a departure would (1) be
inconsistent with the policies established by Congress under 18
U.S.C. § 3624(b) and other statutory provisions for reducing the
time to be served by an imprisoned person; and (2) inequitably
benefit only those who gain the opportunity to be resentenced de
novo.
Historical Note: Effective November 1, 2000 (see Appendix C,
amendment 602).
§5K2.20. Aberrant Behavior (Policy Statement)
(a) IN GENERAL.—Except where a defendant is convicted of an offense
involving a minor victim under section 1201, an offense under
section 1591, or an offense under chapter 71, 109A, 110, or 117, of
title 18, United States Code, a downward departure may be warranted
in an exceptional case if (1) the defendant’s criminal conduct
meets the requirements of subsection (b); and (2) the departure is
not prohibited under subsection (c).
(b) REQUIREMENTS.—The court may depart downward under this policy
statement only if the defendant committed a single criminal
occurrence or single criminal transaction that (1) was committed
without significant planning; (2) was of limited duration; and (3)
represents a marked deviation by the defendant from an otherwise
law-abiding life.
(c) PROHIBITIONS BASED ON THE PRESENCE OF CERTAIN
CIRCUMSTANCES.—The court may not depart downward pursuant to this
policy statement if any of the following circumstances are present:
(1) The offense involved serious bodily injury or death.
(2) The defendant discharged a firearm or otherwise used a firearm
or a dangerous weapon.
(3) The instant offense of conviction is a serious drug trafficking
offense.
(4) The defendant has either of the following: (A) more than one
criminal history point, as determined under Chapter Four (Criminal
History and Criminal Livelihood) before application of subsection
(b) of §4A1.3 (Departures Based on Inadequacy of Criminal History
Category); or (B) a prior federal or state felony conviction, or
any other significant prior criminal behavior, regardless of
whether the conviction or significant prior criminal behavior is
countable under Chapter Four.
Commentary
Application Notes:
1. Definitions.—For purposes of this policy statement:
"Dangerous weapon," "firearm," "otherwise used," and "serious
bodily injury" have the meaning given those terms in the Commentary
to §1B1.1 (Application Instructions).
"Serious drug trafficking offense" means any controlled substance
offense under title 21, United States Code, other than simple
possession under 21 U.S.C. § 844, that provides for a mandatory
minimum term of imprisonment of five years or greater, regardless
of whether the defendant meets the criteria of §5C1.2 (Limitation
on Applicability of Statutory Mandatory Minimum Sentences in
Certain Cases).
2. Repetitious or Significant, Planned Behavior.—Repetitious or
significant, planned behavior does not meet the requirements of
subsection (b). For example, a fraud scheme generally would not
meet such requirements because such a scheme usually involves
repetitive acts, rather than a single occurrence or single criminal
transaction, and significant planning.
3. Other Circumstances to Consider.—In determining whether the
court should depart under this policy statement, the court may
consider the defendant’s (A) mental and emotional conditions; (B)
employment record; (C) record of prior good works; (D) motivation
for committing the offense; and (E) efforts to mitigate the effects
of the offense.
Background: Section 401(b)(3) of Public Law 108–21 directly amended
subsection (a) of this policy statement, effective April 30, 2003.
Historical Note: Effective November 1, 2000 (see Appendix C,
amendment 603). Amended effective April 30, 2003 (see Appendix C,
amendment 649); October 27, 2003 (see Appendix C, amendment 651).
§5K2.21. Dismissed and Uncharged Conduct (Policy Statement)
The court may depart upward to reflect the actual seriousness of
the offense based on conduct (1) underlying a charge dismissed as
part of a plea agreement in the case, or underlying a potential
charge not pursued in the case as part of a plea agreement or for
any other reason; and (2) that did not enter into the determination
of the applicable guideline range.
Historical Note: Effective November 1, 2000 (see Appendix C,
amendment 604). Amended effective November 1, 2004 (see Appendix C,
amendment 674).
§5K2.22. Specific Offender Characteristics as Grounds for Downward
Departure in Child Crimes and Sexual Offenses (Policy Statement)
In sentencing a defendant convicted of an offense involving a minor
victim under section 1201, an offense under section 1591, or an
offense under chapter 71, 109A, 110, or 117, of title 18, United
States Code:
(1) Age may be a reason to depart downward only if and to the
extent permitted by §5H1.1.
(2) An extraordinary physical impairment may be a reason to depart
downward only if and to the extent permitted by §5H1.4.
(3) Drug, alcohol, or gambling dependence or abuse is not a reason
to depart downward.
Commentary
Background: Section 401(b)(2) of Public Law 108–21 directly amended
Chapter Five, Part K, to add this policy statement, effective April
30, 2003.
Historical Note: Effective April 30, 2003 (see Appendix C,
amendment 649). Amended effective November 1, 2004 (see Appendix C,
amendment 674).
§5K2.23. Discharged Terms of Imprisonment (Policy Statement)
A downward departure may be appropriate if the defendant (1) has
completed serving a term of imprisonment; and (2) subsection (b) of
§5G1.3 (Imposition of a Sentence on a Defendant Subject to
Undischarged Term of Imprisonment) would have provided an
adjustment had that completed term of imprisonment been
undischarged at the time of sentencing for the instant offense. Any
such departure should be fashioned to achieve a reasonable
punishment for the instant offense.
Historical Note: Effective November 1, 2003 (see Appendix C,
amendment 660). Amended effective November 1, 2004 (see Appendix C,
amendment 674).
§5K2.24. Commission of Offense While Wearing or Displaying
Unauthorized or Counterfeit Insignia or Uniform (Policy Statement)
If, during the commission of the offense, the defendant wore or
displayed an official, or counterfeit official, insignia or uniform
received in violation of 18 U.S.C. § 716, an upward departure may
be warranted.
Commentary
Application Note:
1. Definition.—For purposes of this policy statement, "official
insignia or uniform" has the meaning given that term in 18 U.S.C.
§ 716(c)(3).
Historical Note: Effective November 1, 2007 (see Appendix C,
amendment 700).
* * * * *
3. EARLY DISPOSITION PROGRAMS
Historical Note: Effective October 27, 2003 (see Appendix C,
amendment 651).
§5K3.1. Early Disposition Programs (Policy Statement)
Upon motion of the Government, the court may depart downward not
more than 4 levels pursuant to an early disposition program
authorized by the Attorney General of the United States and the
United States Attorney for the district in which the court resides.
Commentary
Background: This policy statement implements the directive to the
Commission in section 401(m)(2)(B) of the Prosecutorial Remedies
and Other Tools to end the Exploitation of Children Today Act of
2003 (the "PROTECT Act", Public Law 108–21).
Historical Note: Effective October 27, 2003 (see Appendix C,
amendment 651).
(0 or 1)
(2 or 3)
(4, 5, 6)
(7, 8, 9)
(10, 11, 12)
(13 or more)
Zone A
1. The Offense Level (1-43) forms the vertical axis of the Sentencing Table. The Criminal History Category (I-VI) forms the horizontal axis of the Table. The intersection of the Offense Level and Criminal History Category displays the Guideline Range in months of imprisonment. "Life" means life imprisonment. For example, the guideline range applicable to a defendant with an Offense Level of 15 and a Criminal History Category of III is 24-30 months of imprisonment.
2. In rare cases, a total offense level of less than 1 or more than 43 may result from application of the guidelines. A total offense level of less than 1 is to be treated as an offense level of 1. An offense level of more than 43 is to be treated as an offense level of 43.
3. The Criminal History Category is determined by the total criminal history points from Chapter Four, Part A, except as provided in §§4B1.1 (Career Offender) and 4B1.4 (Armed Career Criminal). The total criminal history points associated with each Criminal History Category are shown under each Criminal History Category in the Sentencing Table.
(1) the applicable guideline range is in Zone A of the Sentencing Table; or
(2) the applicable guideline range is in Zone B of the Sentencing Table and the court imposes a condition or combination of conditions requiring intermittent confinement, community confinement, or home detention as provided in subsection (c)(3) of §5C1.1 (Imposition of a Term of Imprisonment).
(1) the offense of conviction is a Class A or B felony, 18 U.S.C. § 3561(a)(1);
(2) the offense of conviction expressly precludes probation as a sentence, 18 U.S.C. § 3561(a)(2);
(3) the defendant is sentenced at the same time to a sentence of imprisonment for the same or a different offense, 18 U.S.C. § 3561(a)(3).
1. Except where prohibited by statute or by the guideline applicable to the offense in Chapter Two, the guidelines authorize, but do not require, a sentence of probation in the following circumstances:
(a) Where the applicable guideline range is in Zone A of the Sentencing Table (i.e., the minimum term of imprisonment specified in the applicable guideline range is zero months). In such cases, a condition requiring a period of community confinement, home detention, or intermittent confinement may be imposed but is not required.
(b) Where the applicable guideline range is in Zone B of the Sentencing Table (i.e., the minimum term of imprisonment specified in the applicable guideline range is at least one but not more than six months). In such cases, the court may impose probation only if it imposes a condition or combination of conditions requiring a period of community confinement, home detention, or intermittent confinement sufficient to satisfy the minimum term of imprisonment specified in the guideline range. For example, where the offense level is 7 and the criminal history category is II, the guideline range from the Sentencing Table is 2-8 months. In such a case, the court may impose a sentence of probation only if it imposes a condition or conditions requiring at least two months of community confinement, home detention, or intermittent confinement, or a combination of community confinement, home detention, and intermittent confinement totaling at least two months.
2. Where the applicable guideline range is in Zone C or D of the Sentencing Table (i.e., the minimum term of imprisonment specified in the applicable guideline range is eight months or more), the guidelines do not authorize a sentence of probation. See §5C1.1 (Imposition of a Term of Imprisonment).
(1) at least one year but not more than five years if the offense level is 6 or greater;
(2) no more than three years in any other case.
(1) for any offense, the defendant shall not commit another federal, state or local offense (see 18 U.S.C. § 3563(a));
(2) for a felony, the defendant shall (A) make restitution, (B) give notice to victims of the offense pursuant to 18 U.S.C. § 3555, or (C) reside, or refrain from residing, in a specified place or area, unless the court finds on the record that extraordinary circumstances exist that would make such a condition plainly unreasonable, in which event the court shall impose one or more of the discretionary conditions set forth under 18 U.S.C. § 3563(b) (see 18 U.S.C. § 3563(a)(2));
(3) for any offense, the defendant shall not unlawfully possess a controlled substance (see 18 U.S.C. § 3563(a));
(4) for a domestic violence crime as defined in 18 U.S.C. § 3561(b) by a defendant convicted of such an offense for the first time, the defendant shall attend a public, private, or non-profit offender rehabilitation program that has been approved by the court, in consultation with a State Coalition Against Domestic Violence or other appropriate experts, if an approved program is available within a 50-mile radius of the legal residence of the defendant (see 18 U.S.C. § 3563(a));
(5) for any offense, the defendant shall refrain from any unlawful use of a controlled substance and submit to one drug test within 15 days of release on probation and at least two periodic drug tests thereafter (as determined by the court) for use of a controlled substance, but the condition stated in this paragraph may be ameliorated or suspended by the court for any individual defendant if the defendant’s presentence report or other reliable information indicates a low risk of future substance abuse by the defendant (see 18 U.S.C. § 3563(a));
(6) the defendant shall (A) make restitution in accordance with 18 U.S.C. §§ 2248, 2259, 2264, 2327, 3663, 3663A, and 3664; and (B) pay the assessment imposed in accordance with 18 U.S.C. § 3013;
(7) the defendant shall notify the court of any material change in the defendant’s economic circumstances that might affect the defendant’s ability to pay restitution, fines, or special assessments (see 18 U.S.C. § 3563(a));
(8) if the court has imposed a fine, the defendant shall pay the fine or adhere to a court-established payment schedule (see 18 U.S.C. § 3563(a));
(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;
(10) the defendant shall submit to the collection of a DNA sample from the defendant at the direction of the United States Probation Office if the collection of such a sample is authorized pursuant to section 3 of the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. § 14135a).
(1) the defendant shall not leave the judicial district or other specified geographic area without the permission of the court or probation officer;
(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;
(14) the defendant shall pay the special assessment imposed or adhere to a court-ordered installment schedule for the payment of the special assessment.
(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.
(2) Debt Obligations
If an installment schedule of payment of restitution or a fine is imposed -- a condition prohibiting the defendant from incurring new credit charges or opening additional lines of credit without approval of the probation officer unless the defendant is in compliance with the payment schedule.
(3) Access to Financial Information
If the court imposes an order of restitution, forfeiture, or notice to victims, or orders the defendant to pay a fine -- a condition requiring the defendant to provide the probation officer access to any requested financial information.
(4) Substance Abuse Program Participation
If the court has reason to believe that the defendant is an abuser of narcotics, other controlled substances or alcohol -- a condition requiring the defendant to participate in a program approved by the United States Probation Office for substance abuse, which program may include testing to determine whether the defendant has reverted to the use of drugs or alcohol.
(5) Mental Health Program Participation
If the court has reason to believe that the defendant is in need of psychological or psychiatric treatment -- a condition requiring that the defendant participate in a mental health program approved by the United States Probation Office.
(6) Deportation
If (A) the defendant and the United States entered into a stipulation of deportation pursuant to section 238(c)(5) of the Immigration and Nationality Act (8 U.S.C. § 1228(c)(5)*); or (B) in the absence of a stipulation of deportation, if, after notice and hearing pursuant to such section, the Attorney General demonstrates by clear and convincing evidence that the alien is deportable -- a condition ordering deportation by a United States district court or a United States magistrate judge.
* So in original. Probably should be 8 U.S.C. § 1228(d)(5).
(7) Sex Offenses
If the instant offense of conviction is a sex offense, as defined in Application Note 1 of the Commentary to §5D1.2 (Term of Supervised Release) --
(A) A condition requiring the defendant to participate in a program approved by the United States Probation Office for the treatment and monitoring of sex offenders.
(B) A condition limiting the use of a computer or an interactive computer service in cases in which the defendant used such items.
(C) A condition requiring the defendant to submit to a search, at any time, with or without a warrant, and by any law enforcement or probation officer, of the defendant’s person and any property, house, residence, vehicle, papers, computer, other electronic communication or data storage devices or media, and effects, upon reasonable suspicion concerning a violation of a condition of probation or unlawful conduct by the defendant, or by any probation officer in the lawful discharge of the officer’s supervision functions.
(1) Community Confinement
Residence in a community treatment center, halfway house or similar facility may be imposed as a condition of probation.
(2) Home Detention
Home detention may be imposed as a condition of probation but only as a substitute for imprisonment. See §5F1.2 (Home Detention).
(3) Community Service
Community service may be imposed as a condition of probation. See §5F1.3 (Community Service).
(4) Occupational Restrictions
Occupational restrictions may be imposed as a condition of probation. See §5F1.5 (Occupational Restrictions).
(5) Curfew
A condition imposing a curfew may be imposed if the court concludes that restricting the defendant to his place of residence during evening and nighttime hours is necessary to provide just punishment for the offense, to protect the public from crimes that the defendant might commit during those hours, or to assist in the rehabilitation of the defendant. Electronic monitoring may be used as a means of surveillance to ensure compliance with a curfew order.
(6) Intermittent Confinement
Intermittent confinement (custody for intervals of time) may be ordered as a condition of probation during the first year of probation.
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.)
(1) a sentence of imprisonment; or
(2) a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement* or home detention according to the schedule in subsection (e), provided that at least one month is satisfied by imprisonment; or
(3) a sentence of probation that includes a condition or combination of conditions that substitute intermittent confinement, community confinement, or home detention for imprisonment according to the schedule in subsection (e).
(1) a sentence of imprisonment; or
(2) a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement* or home detention according to the schedule in subsection (e), provided that at least one-half of the minimum term is satisfied by imprisonment.
(1) One day of intermittent confinement in prison or jail for one day of imprisonment (each 24 hours of confinement is credited as one day of intermittent confinement, provided, however, that one day shall be credited for any calendar day during which the defendant is employed in the community and confined during all remaining hours);
(2) One day of community confinement (residence in a community treatment center, halfway house, or similar residential facility) for one day of imprisonment;
(3) One day of home detention for one day of imprisonment.
1. Subsection (a) provides that a sentence conforms with the guidelines for imprisonment if it is within the minimum and maximum terms of the applicable guideline range specified in the Sentencing Table in Part A of this Chapter. For example, if the defendant has an Offense Level of 20 and a Criminal History Category of I, the applicable guideline range is 33-41 months of imprisonment. Therefore, a sentence of imprisonment of at least thirty-three months, but not more than forty-one months, is within the applicable guideline range.
2. Subsection (b) provides that where the applicable guideline range is in Zone A of the Sentencing Table (i.e., the minimum term of imprisonment specified in the applicable guideline range is zero months), the court is not required to impose a sentence of imprisonment unless a sentence of imprisonment or its equivalent is specifically required by the guideline applicable to the offense. Where imprisonment is not required, the court, for example, may impose a sentence of probation. In some cases, a fine appropriately may be imposed as the sole sanction.
3. Subsection (c) provides that where the applicable guideline range is in Zone B of the Sentencing Table (i.e., the minimum term of imprisonment specified in the applicable guideline range is at least one but not more than six months), the court has three options:
(A) It may impose a sentence of imprisonment.
(B) It may impose a sentence of probation provided that it includes a condition of probation requiring a period of intermittent confinement, community confinement, or home detention, or combination of intermittent confinement, community confinement, and home detention, sufficient to satisfy the minimum period of imprisonment specified in the guideline range. For example, where the guideline range is 4-10 months, a sentence of probation with a condition requiring at least four months of intermittent confinement, community confinement, or home detention would satisfy the minimum term of imprisonment specified in the guideline range.
(C) Or, it may impose a sentence of imprisonment that includes a term of supervised release with a condition that requires community confinement* or home detention. In such case, at least one month must be satisfied by actual imprisonment and the remainder of the minimum term specified in the guideline range must be satisfied by community confinement or home detention. For example, where the guideline range is 4-10 months, a sentence of imprisonment of one month followed by a term of supervised release with a condition requiring three months of community confinement or home detention would satisfy the minimum term of imprisonment specified in the guideline range.
The preceding examples illustrate sentences that satisfy the minimum term of imprisonment required by the guideline range. The court, of course, may impose a sentence at a higher point within the applicable guideline range. For example, where the guideline range is 4-10 months, both a sentence of probation with a condition requiring six months of community confinement or home detention (under subsection (c)(3)) and a sentence of two months imprisonment followed by a term of supervised release with a condition requiring four months of community confinement or home detention (under subsection (c)(2)) would be within the guideline range.
4. Subsection (d) provides that where the applicable guideline range is in Zone C of the Sentencing Table (i.e., the minimum term specified in the applicable guideline range is eight, nine, or ten months), the court has two options:
(A) It may impose a sentence of imprisonment.
(B) Or, it may impose a sentence of imprisonment that includes a term of supervised release with a condition requiring community confinement* or home detention. In such case, at least one-half of the minimum term specified in the guideline range must be satisfied by imprisonment, and the remainder of the minimum term specified in the guideline range must be satisfied by community confinement or home detention. For example, where the guideline range is 8-14 months, a sentence of four months imprisonment followed by a term of supervised release with a condition requiring four months community confinement or home detention would satisfy the minimum term of imprisonment required by the guideline range.
The preceding example illustrates a sentence that satisfies the minimum term of imprisonment required by the guideline range. The court, of course, may impose a sentence at a higher point within the guideline range. For example, where the guideline range is 8-14 months, both a sentence of four months imprisonment followed by a term of supervised release with a condition requiring six months of community confinement or home detention (under subsection (d)), and a sentence of five months imprisonment followed by a term of supervised release with a condition requiring four months of community confinement or home detention (also under subsection (d)) would be within the guideline range.
5. Subsection (e) sets forth a schedule of imprisonment substitutes.
6. There may be cases in which a departure from the guidelines by substitution of a longer period of community confinement* than otherwise authorized for an equivalent number of months of imprisonment is warranted to accomplish a specific treatment purpose (e.g., substitution of twelve months in an approved residential drug treatment program for twelve months of imprisonment). Such a substitution should be considered only in cases where the defendant’s criminality is related to the treatment problem to be addressed and there is a reasonable likelihood that successful completion of the treatment program will eliminate that problem.
7. The use of substitutes for imprisonment as provided in subsections (c) and (d) is not recommended for most defendants with a criminal history category of III or above. Generally, such defendants have failed to reform despite the use of such alternatives.
8. Subsection (f) provides that, where the applicable guideline range is in Zone D of the Sentencing Table (i.e., the minimum term of imprisonment specified in the applicable guideline range is twelve months or more), the minimum term must be satisfied by a sentence of imprisonment without the use of any of the imprisonment substitutes in subsection (e).
*Note: Section 3583(d) of title 18, United States Code, provides that "[t]he court may order, as a further condition of supervised release...any condition set forth as a discretionary condition of probation in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other condition it considers to be appropriate." Subsection (b)(11) of section 3563 of title 18, United States Code, is explicitly excluded as a condition of supervised release. Before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, the condition at 18 U.S.C. § 3563(b)(11) was intermittent confinement. The Act deleted 18 U.S.C. § 3563(b)(2), authorizing the payment of a fine as a condition of probation, and redesignated the remaining conditions of probation set forth in 18 U.S.C. § 3563(b); intermittent confinement is now set forth at subsection (b)(10), whereas subsection (b)(11) sets forth the condition of residency at a community corrections facility. It would appear that intermittent confinement now is authorized as a condition of supervised release and that community confinement now is not authorized as a condition of supervised release.
However, there is some question as to whether Congress intended this result. Although the Antiterrorism and Effective Death Penalty Act of 1996 redesignated the remaining paragraphs of section 3563(b), it failed to make the corresponding redesignations in 18 U.S.C. § 3583(d), regarding discretionary conditions of supervised release.
(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines before application of subsection (b) of §4A1.3 (Departures Based on Inadequacy of Criminal History Category);
(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848; and
(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.
1. "More than 1 criminal history point, as determined under the sentencing guidelines," as used in subsection (a)(1), means more than one criminal history point as determined under §4A1.1 (Criminal History Category) before application of subsection (b) of §4A1.3 (Departures Based on Inadequacy of Criminal History Category).
2. "Dangerous weapon" and "firearm," as used in subsection (a)(2), and "serious bodily injury," as used in subsection (a)(3), are defined in the Commentary to §1B1.1 (Application Instructions).
3. "Offense," as used in subsection (a)(2)-(4), and "offense or offenses that were part of the same course of conduct or of a common scheme or plan," as used in subsection (a)(5), mean the offense of conviction and all relevant conduct.
4. Consistent with §1B1.3 (Relevant Conduct), the term "defendant," as used in subsection (a)(2), limits the accountability of the defendant to his own conduct and conduct that he aided or abetted, counseled, commanded, induced, procured, or willfully caused.
5. "Organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines," as used in subsection (a)(4), means a defendant who receives an adjustment for an aggravating role under §3B1.1 (Aggravating Role).
6. "Engaged in a continuing criminal enterprise," as used in subsection (a)(4), is defined in 21 U.S.C. § 848(c). As a practical matter, it should not be necessary to apply this prong of subsection (a)(4) because (i) this section does not apply to a conviction under 21 U.S.C. § 848, and (ii) any defendant who "engaged in a continuing criminal enterprise" but is convicted of an offense to which this section applies will be an "organizer, leader, manager, or supervisor of others in the offense."
7. Information disclosed by the defendant with respect to subsection (a)(5) may be considered in determining the applicable guideline range, except where the use of such information is restricted under the provisions of §1B1.8 (Use of Certain Information). That is, subsection (a)(5) does not provide an independent basis for restricting the use of information disclosed by the defendant.
8. Under 18 U.S.C. § 3553(f), prior to its determination, the court shall afford the government an opportunity to make a recommendation. See also Fed. R. Crim. P. 32(c)(1), (3).
9. A defendant who meets the criteria under this section is exempt from any otherwise applicable statutory minimum sentence of imprisonment and statutory minimum term of supervised release.
(1) At least three years but not more than five years for a defendant convicted of a Class A or B felony.
(2) At least two years but not more than three years for a defendant convicted of a Class C or D felony.
(3) One year for a defendant convicted of a Class E felony or a Class A misdemeanor.
(1) any offense listed in 18 U.S.C. § 2332b(g)(5)(B), the commission of which resulted in, or created a foreseeable risk of, death or serious bodily injury to another person; or
(2) a sex offense.
(Policy Statement) If the instant offense of conviction is a sex offense, however, the statutory maximum term of supervised release is recommended.
1. Definitions.—For purposes of this guideline:
"Sex offense" means (A) an offense, perpetrated against a minor, under (i) chapter 109A of title 18, United States Code; (ii) chapter 109B of such title; (iii) chapter 110 of such title, not including a recordkeeping offense; (iv) chapter 117 of such title, not including transmitting information about a minor or filing a factual statement about an alien individual; (v) an offense under 18 U.S.C. § 1201; or (vi) an offense under 18 U.S.C. § 1591; or (B) an attempt or a conspiracy to commit any offense described in subdivisions (A)(i) through (vi) of this note.
"Minor" means (A) an individual who had not attained the age of 18 years; (B) an individual, whether fictitious or not, who a law enforcement officer represented to a participant (i) had not attained the age of 18 years; and (ii) could be provided for the purposes of engaging in sexually explicit conduct; or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.
2. Safety Valve Cases.—A defendant who qualifies under §5C1.2 ( Limitation on Applicability of Statutory Minimum Sentence in Certain Cases) is not subject to any statutory minimum sentence of supervised release. See 18 U.S.C. § 3553(f). In such a case, the term of supervised release shall be determined under subsection (a).
3. Substantial Assistance Cases.—Upon motion of the Government, a defendant who has provided substantial assistance in the investigation or prosecution of another person who has committed an offense may be sentenced to a term of supervised release that is less than any minimum required by statute or the guidelines. See 18 U.S.C. § 3553(e), §5K1.1 (Substantial Assistance to Authorities).
(1) the defendant shall not commit another federal, state or local offense (see 18 U.S.C. § 3583(d));
(2) the defendant shall not unlawfully possess a controlled substance (see 18 U.S.C. § 3583(d));
(3) the defendant who is convicted for a domestic violence crime as defined in 18 U.S.C. § 3561(b) for the first time shall attend a public, private, or private non-profit offender rehabilitation program that has been approved by the court, in consultation with a State Coalition Against Domestic Violence or other appropriate experts, if an approved program is available within a 50-mile radius of the legal residence of the defendant (see 18 U.S.C. § 3583(d));
(4) the defendant shall refrain from any unlawful use of a controlled substance and submit to one drug test within 15 days of release on probation and at least two periodic drug tests thereafter (as determined by the court) for use of a controlled substance, but the condition stated in this paragraph may be ameliorated or suspended by the court for any individual defendant if the defendant’s presentence report or other reliable information indicates a low risk of future substance abuse by the defendant (see 18 U.S.C. § 3583(d));
(5) if a fine is imposed and has not been paid upon release to supervised release, the defendant shall adhere to an installment schedule to pay that fine (see 18 U.S.C. § 3624(e));
(6) the defendant shall (A) make restitution in accordance with 18 U.S.C. §§ 2248, 2259, 2264, 2327, 3663, 3663A, and 3664; and (B) pay the assessment imposed in accordance with 18 U.S.C. § 3013;
(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;
(8) the defendant shall submit to the collection of a DNA sample from the defendant at the direction of the United States Probation Office if the collection of such a sample is authorized pursuant to section 3 of the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. § 14135a).
(1) the defendant shall not leave the judicial district or other specified geographic area without the permission of the court or probation officer;
(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;
(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.
(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.
(2) Debt Obligations
If an installment schedule of payment of restitution or a fine is imposed -- a condition prohibiting the defendant from incurring new credit charges or opening additional lines of credit without approval of the probation officer unless the defendant is in compliance with the payment schedule.
(3) Access to Financial Information
If the court imposes an order of restitution, forfeiture, or notice to victims, or orders the defendant to pay a fine -- a condition requiring the defendant to provide the probation officer access to any requested financial information.
(4) Substance Abuse Program Participation
If the court has reason to believe that the defendant is an abuser of narcotics, other controlled substances or alcohol -- a condition requiring the defendant to participate in a program approved by the United States Probation Office for substance abuse, which program may include testing to determine whether the defendant has reverted to the use of drugs or alcohol.
(5) Mental Health Program Participation
If the court has reason to believe that the defendant is in need of psychological or psychiatric treatment -- a condition requiring that the defendant participate in a mental health program approved by the United States Probation Office.
(6) Deportation
If (A) the defendant and the United States entered into a stipulation of deportation pursuant to section 238(c)(5) of the Immigration and Nationality Act (8 U.S.C. § 1228(c)(5)*); or (B) in the absence of a stipulation of deportation, if, after notice and hearing pursuant to such section, the Attorney General demonstrates by clear and convincing evidence that the alien is deportable -- a condition ordering deportation by a United States district court or a United States magistrate judge.
* So in original. Probably should be 8 U.S.C. § 1228(d)(5).
(7) Sex Offenses
If the instant offense of conviction is a sex offense, as defined in Application Note 1 of the Commentary to §5D1.2 (Term of Supervised Release) --
(A) A condition requiring the defendant to participate in a program approved by the United States Probation Office for the treatment and monitoring of sex offenders.
(B) A condition limiting the use of a computer or an interactive computer service in cases in which the defendant used such items.
(C) A condition requiring the defendant to submit to a search, at any time, with or without a warrant, and by any law enforcement or probation officer, of the defendant’s person and any property, house, residence, vehicle, papers, computer, other electronic communication or data storage devices or media, and effects upon reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct by the defendant, or by any probation officer in the lawful discharge of the officer’s supervision functions.
(1) Community Confinement*
Residence in a community treatment center, halfway house or similar facility may be imposed as a condition of supervised release. See §5F1.1 (Community Confinement).
*Note: Section 3583(d) of title 18, United States Code, provides that "[t]he court may order, as a further condition of supervised release...any condition set forth as a discretionary condition of probation in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20), and any other condition it considers to be appropriate." Subsection (b)(11) of section 3563 of title 18, United States Code, is explicitly excluded as a condition of supervised release. Before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, the condition at 18 U.S.C. § 3563(b)(11) was intermittent confinement. The Act deleted 18 U.S.C. § 3563(b)(2), authorizing the payment of a fine as a condition of probation, and redesignated the remaining conditions of probation set forth in 18 U.S.C. § 3563(b); intermittent confinement is now set forth at subsection (b)(10), whereas subsection (b)(11) sets forth the condition of residency at a community corrections facility. It would appear that intermittent confinement now is authorized as a condition of supervised release and that community confinement now is not authorized as a condition of supervised release.
However, there is some question as to whether Congress intended this result. Although the Antiterrorism and Effective Death Penalty Act of 1996 redesignated the remaining paragraphs of section 3563(b), it failed to make the corresponding redesignations in 18 U.S.C. § 3583(d), regarding discretionary conditions of supervised release.
(2) Home Detention
Home detention may be imposed as a condition of supervised release, but only as a substitute for imprisonment. See §5F1.2 (Home Detention).
(3) Community Service
Community service may be imposed as a condition of supervised release. See §5F1.3 (Community Service).
(4) Occupational Restrictions
Occupational restrictions may be imposed as a condition of supervised release. See §5F1.5 (Occupational Restrictions).
(5) Curfew
A condition imposing a curfew may be imposed if the court concludes that restricting the defendant to his place of residence during evening and nighttime hours is necessary to protect the public from crimes that the defendant might commit during those hours, or to assist in the rehabilitation of the defendant. Electronic monitoring may be used as a means of surveillance to ensure compliance with a curfew order.
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.)
(1) enter a restitution order for the full amount of the victim’s loss, if such order is authorized under 18 U.S.C. § 1593, § 2248, § 2259, § 2264, § 2327, § 3663, or § 3663A , or 21 U.S.C. § 853(q) ; or
(2) impose a term of probation or supervised release with a condition requiring restitution for the full amount of the victim’s loss, if the offense is not an offense for which restitution is authorized under 18 U.S.C. § 3663(a)(1) but otherwise meets the criteria for an order of restitution under that section.
(1) when full restitution has been made; or
(2) in the case of a restitution order under 18 U.S.C. § 3663; a restitution order under 18 U.S.C. § 3663A that pertains to an offense against property described in 18 U.S.C. § 3663A(c)(1)(A)(ii); or a condition of restitution imposed pursuant to subsection (a)(2) above, to the extent the court finds, from facts on the record, that (A) the number of identifiable victims is so large as to make restitution impracticable; or (B) determining complex issues of fact related to the cause or amount of the victim’s losses would complicate or prolong the sentencing process to a degree that the need to provide restitution to any victim is outweighed by the burden on the sentencing process.
(1) This guideline applies only to a defendant convicted of an offense committed on or after November 1, 1997. Notwithstanding the provisions of §1B1.11 (Use of Guidelines Manual in Effect on Date of Sentencing), use the former §5E1.1 (set forth in Appendix C, amendment 571) in lieu of this guideline in any other case.
1. The court shall not order community restitution under subsection (d) if it appears likely that such an award would interfere with a forfeiture under Chapter 46 or 96 of Title 18, United States Code, or under the Controlled Substances Act (21 U.S.C. § 801 et seq.). See 18 U.S.C. § 3663(c)(4).
Furthermore, a penalty assessment under 18 U.S.C. § 3013 or a fine under Subchapter C of Chapter 227 of Title 18, United States Code, shall take precedence over an order of community restitution under subsection (d). See 18 U.S.C. § 3663(c)(5).
(2) Except as specified in (4) below, the maximum of the fine guideline range is the amount shown in column B of the table below.
(3) Fine Table
Offense Level
A Minimum
B Maximum
3 and below
$100
$5,000
4-5
$250
$5,000
6-7
$5000
$5,000
8-9
$1,000
$10,000
10-11
$2,000
$20,000
12-13
$3,000
$30,000
14-15
$4,000
$40,000
16-17
$5,000
$50,000
18-19
$6,000
$60,000
20-22
$7,500
$75,000
23-25
$10,000
$100,000
26-28
$12,500
$125,000
29-31
$15,000
$150,000
32-34
$17,500
$175,000
35-37
$20,000
$200,000
38 and above
$25,000
$250,000.
(4) Subsection (c)(2), limiting the maximum fine, does not apply if the defendant is convicted under a statute authorizing (A) a maximum fine greater than $250,000, or (B) a fine for each day of violation. In such cases, the court may impose a fine up to the maximum authorized by the statute.
(1) the need for the combined sentence to reflect the seriousness of the offense (including the harm or loss to the victim and the gain to the defendant), to promote respect for the law, to provide just punishment and to afford adequate deterrence;
(2) any evidence presented as to the defendant’s ability to pay the fine (including the ability to pay over a period of time) in light of his earning capacity and financial resources;
(3) the burden that the fine places on the defendant and his dependents relative to alternative punishments;
(4) any restitution or reparation that the defendant has made or is obligated to make;
(5) any collateral consequences of conviction, including civil obligations arising from the defendant’s conduct;
(6) whether the defendant previously has been fined for a similar offense;
(7) the expected costs to the government of any term of probation, or term of imprisonment and term of supervised release imposed; and
(8) any other pertinent equitable considerations.
The amount of the fine should always be sufficient to ensure that the fine, taken together with other sanctions imposed, is punitive.
1. A fine may be the sole sanction if the guidelines do not require a term of imprisonment. If, however, the fine is not paid in full at the time of sentencing, it is recommended that the court sentence the defendant to a term of probation, with payment of the fine as a condition of probation. If a fine is imposed in addition to a term of imprisonment, it is recommended that the court impose a term of supervised release following imprisonment as a means of enforcing payment of the fine.
2. In general, the maximum fine permitted by law as to each count of conviction is $250,000 for a felony or for any misdemeanor resulting in death; $100,000 for a Class A misdemeanor; and $5,000 for any other offense. 18 U.S.C. § 3571(b)(3)-(7). However, higher or lower limits may apply when specified by statute. 18 U.S.C. § 3571(b)(1), (e). As an alternative maximum, the court may fine the defendant up to the greater of twice the gross gain or twice the gross loss. 18 U.S.C. § 3571(b)(2), (d).
3. The determination of the fine guideline range may be dispensed with entirely upon a court determination of present and future inability to pay any fine. The inability of a defendant to post bail bond (having otherwise been determined eligible for release) and the fact that a defendant is represented by (or was determined eligible for) assigned counsel are significant indicators of present inability to pay any fine. In conjunction with other factors, they may also indicate that the defendant is not likely to become able to pay any fine.
4. The Commission envisions that for most defendants, the maximum of the guideline fine range from subsection (c) will be at least twice the amount of gain or loss resulting from the offense. Where, however, two times either the amount of gain to the defendant or the amount of loss caused by the offense exceeds the maximum of the fine guideline, an upward departure from the fine guideline may be warranted.
Moreover, where a sentence within the applicable fine guideline range would not be sufficient to ensure both the disgorgement of any gain from the offense that otherwise would not be disgorged (e.g., by restitution or forfeiture) and an adequate punitive fine, an upward departure from the fine guideline range may be warranted.
5. Subsection (c)(4) applies to statutes that contain special provisions permitting larger fines; the guidelines do not limit maximum fines in such cases. These statutes include, among others: 21 U.S.C. §§ 841(b) and 960(b), which authorize fines up to $8 million in offenses involving the manufacture, distribution, or importation of certain controlled substances; 21 U.S.C. § 848(a), which authorizes fines up to $4 million in offenses involving the manufacture or distribution of controlled substances by a continuing criminal enterprise; 18 U.S.C. § 1956(a), which authorizes a fine equal to the greater of $500,000 or two times the value of the monetary instruments or funds involved in offenses involving money laundering of financial instruments; 18 U.S.C. § 1957(b)(2), which authorizes a fine equal to two times the amount of any criminally derived property involved in a money laundering transaction; 33 U.S.C. § 1319(c), which authorizes a fine of up to $50,000 per day for violations of the Water Pollution Control Act; 42 U.S.C. § 6928(d), which authorizes a fine of up to $50,000 per day for violations of the Resource Conservation Act; and 2 U.S.C. § 437g(d)(1)(D), which authorizes, for violations of the Federal Election Campaign Act under 2 U.S.C. § 441f, a fine up to the greater of $50,000 or 1,000 percent of the amount of the violation, and which requires, in the case of such a violation, a minimum fine of not less than 300 percent of the amount of the violation.
There may be cases in which the defendant has entered into a conciliation agreement with the Federal Election Commission under section 309 of the Federal Election Campaign Act of 1971 in order to correct or prevent a violation of such Act by the defendant. The existence of a conciliation agreement between the defendant and Federal Election Commission, and the extent of compliance with that conciliation agreement, may be appropriate factors in determining at what point within the applicable fine guideline range to sentence the defendant, unless the defendant began negotiations toward a conciliation agreement after becoming aware of a criminal investigation.
6. The existence of income or assets that the defendant failed to disclose may justify a larger fine than that which otherwise would be warranted under this section. The court may base its conclusion as to this factor on information revealing significant unexplained expenditures by the defendant or unexplained possession of assets that do not comport with the defendant’s reported income. If the court concludes that the defendant willfully misrepresented all or part of his income or assets, it may increase the offense level and resulting sentence in accordance with Chapter Three, Part C (Obstruction).
7. In considering subsection (d)(7), the court may be guided by reports published by the Bureau of Prisons and the Administrative Office of the United States Courts concerning average costs.
1. This guideline applies only if the defendant is an individual. See §8E1.1 for special assessments applicable to organizations.
2. The following special assessments are provided by statute (18 U.S.C. § 3013):
|
For Offenses Committed By Individuals On Or After April 24, 1996: |
(A) |
$100, if convicted of a felony; |
(B) |
$25, if convicted of a Class A misdemeanor; |
(C) |
$10, if convicted of a Class B misdemeanor; |
(D) |
$5, if convicted of a Class C misdemeanor or an infraction. |
|
|
|
For Offenses Committed By Individuals On Or After November 18, 1988 But Prior To April 24, 1996: |
(E) |
$50, if convicted of a felony; |
(F) |
$25, if convicted of a Class A misdemeanor; |
(G) |
$10, if convicted of a Class B misdemeanor; |
(H) |
$5, if convicted of a Class C misdemeanor or an infraction. |
|
|
|
For Offenses Committed By Individuals Prior To November 18, 1988: |
(I) |
$50, if convicted of a felony; |
(J) |
$25, if convicted of a misdemeanor. |
3. A special assessment is required by statute for each count of conviction.
1. "Community confinement" means residence in a community treatment center, halfway house, restitution center, mental health facility, alcohol or drug rehabilitation center, or other community facility; and participation in gainful employment, employment search efforts, community service, vocational training, treatment, educational programs, or similar facility-approved programs during non-residential hours.
2. Community confinement generally should not be imposed for a period in excess of six months. A longer period may be imposed to accomplish the objectives of a specific rehabilitative program, such as drug rehabilitation. The sentencing judge may impose other discretionary conditions of probation or supervised release appropriate to effectuate community confinement.
1. "Home detention" means a program of confinement and supervision that restricts the defendant to his place of residence continuously, except for authorized absences, enforced by appropriate means of surveillance by the probation office. When an order of home detention is imposed, the defendant is required to be in his place of residence at all times except for approved absences for gainful employment, community service, religious services, medical care, educational or training programs, and such other times as may be specifically authorized. Electronic monitoring is an appropriate means of surveillance and ordinarily should be used in connection with home detention. However, alternative means of surveillance may be used so long as they are as effective as electronic monitoring.
2. The court may impose other conditions of probation or supervised release appropriate to effectuate home detention. If the court concludes that the amenities available in the residence of a defendant would cause home detention not to be sufficiently punitive, the court may limit the amenities available.
3. The defendant’s place of residence, for purposes of home detention, need not be the place where the defendant previously resided. It may be any place of residence, so long as the owner of the residence (and any other person(s) from whom consent is necessary) agrees to any conditions that may be imposed by the court, e.g., conditions that a monitoring system be installed, that there will be no "call forwarding" or "call waiting" services, or that there will be no cordless telephones or answering machines.
1. Community service generally should not be imposed in excess of 400 hours. Longer terms of community service impose heavy administrative burdens relating to the selection of suitable placements and the monitoring of attendance.
(1) a reasonably direct relationship existed between the defendant’s occupation, business, or profession and the conduct relevant to the offense of conviction; and
(2) imposition of such a restriction is reasonably necessary to protect the public because there is reason to believe that, absent such restriction, the defendant will continue to engage in unlawful conduct similar to that for which the defendant was convicted.
[R]efrain, in the case of an individual, from engaging in a specified occupation, business, or profession bearing a reasonably direct relationship to the conduct constituting the offense, or engage in such a specified occupation, business, or profession only to a stated degree or under stated circumstances.
1. "Federal benefit" is defined in 21 U.S.C. § 862(d) to mean "any grant, contract, loan, professional license, or commercial license provided by an agency of the United States or by appropriated funds of the United States" but "does not include any retirement, welfare, Social Security, health, disability, veterans benefit, public housing, or other similar benefit, or any other benefit for which payments or services are required for eligibility."
"(a) the Bureau of Prisons may place in a shock incarceration program any person who is sentenced to a term of more than 12, but not more than 30 months, if such person consents to that placement.
(b) For such initial portion of the term of imprisonment as the Bureau of Prisons may determine, not to exceed six months, an inmate in the shock incarceration program shall be required to -
(1) adhere to a highly regimented schedule that provides the strict discipline, physical training, hard labor, drill, and ceremony characteristic of military basic training; and
(2) participate in appropriate job training and educational programs (including literacy programs) and drug, alcohol, and other counseling programs.
(c) An inmate who in the judgment of the Director of the Bureau of Prisons has successfully completed the required period of shock incarceration shall remain in the custody of the Bureau for such period (not to exceed the remainder of the prison term otherwise required by law to be served by that inmate), and under such conditions, as the Bureau deems appropriate. 18 U.S.C. § 4046."
(1) is not greater than the statutorily authorized maximum sentence, and
(2) is not less than any statutorily required minimum sentence.
1. In General.—This section specifies the procedure for determining the specific sentence to be formally imposed on each count in a multiple-count case. The combined length of the sentences ("total punishment") is determined by the court after determining the adjusted combined offense level and the Criminal History Category. Except as otherwise required by subsection (e) or any other law, the total punishment is to be imposed on each count and the sentences on all counts are to be imposed to run concurrently to the extent allowed by the statutory maximum sentence of imprisonment for each count of conviction.
This section applies to multiple counts of conviction (1) contained in the same indictment or information, or (2) contained in different indictments or informations for which sentences are to be imposed at the same time or in a consolidated proceeding.
Usually, at least one of the counts will have a statutory maximum adequate to permit imposition of the total punishment as the sentence on that count. The sentence on each of the other counts will then be set at the lesser of the total punishment and the applicable statutory maximum, and be made to run concurrently with all or part of the longest sentence. If no count carries an adequate statutory maximum, consecutive sentences are to be imposed to the extent necessary to achieve the total punishment.
2. Mandatory Minimum and Mandatory Consecutive Terms of Imprisonment (Not Covered by Subsection (e)).—
(A) In General.— Subsection (a) applies if a statute (i) specifies a term of imprisonment to be imposed; and (ii) requires that such term of imprisonment be imposed to run consecutively to any other term of imprisonment. See, e.g., 18 U.S.C. § 924(c) (requiring mandatory minimum terms of imprisonment, based on the conduct involved, and also requiring the sentence imposed to run consecutively to any other term of imprisonment) and 18 U.S.C. § 1028A (requiring a mandatory term of imprisonment of either two or five years, based on the conduct involved, and also requiring, except in the circumstances described in subdivision (B), the sentence imposed to run consecutively to any other term of imprisonment) . Except for certain career offender situations in which subsection (c) of §4B1.1 (Career Offender) applies, the term of years to be imposed consecutively is the minimum required by the statute of conviction and is independent of the guideline sentence on any other count. See, e.g., the Commentary to §§2K2.4 (Use of Firearm, Armor-Piercing Ammunition, or Explosive During or in Relation to Certain Crimes) and 3D1.1 (Procedure for Determining Offense Level on Multiple Counts) regarding the determination of the offense levels for related counts when a conviction under 18 U.S.C. § 924(c) is involved. Subsection (a) also applies in certain other instances in which an independently determined and consecutive sentence is required. See, e.g., Application Note 3 of the Commentary to §2J1.6 (Failure to Appear by Defendant), relating to failure to appear for service of sentence.
(B) Multiple Convictions Under 18 U.S.C. § 1028A.—Section 1028A of title 18, United States Code, generally requires that the mandatory term of imprisonment for a violation of such section be imposed consecutively to any other term of imprisonment. However, 18 U.S.C. § 1028A(b)(4) permits the court, in its discretion, to impose the mandatory term of imprisonment on a defendant for a violation of such section "concurrently, in whole or in part, only with another term of imprisonment that is imposed by the court at the same time on that person for an additional violation of this section, provided that such discretion shall be exercised in accordance with any applicable guidelines and policy statements issued by the Sentencing Commission. . .".
In determining whether multiple counts of 18 U.S.C. § 1028A should run concurrently with, or consecutively to, each other, the court should consider the following non-exhaustive list of factors:
(i) The nature and seriousness of the underlying offenses. For example, the court should consider the appropriateness of imposing consecutive, or partially consecutive, terms of imprisonment for multiple counts of 18 U.S.C. § 1028A in a case in which an underlying offense for one of the 18 U.S.C. § 1028A offenses is a crime of violence or an offense enumerated in 18 U.S.C. § 2332b(g)(5)(B).
(ii) Whether the underlying offenses are groupable under §3D1.2 (Groups of Closely Related Counts ). Generally, multiple counts of 18 U.S.C. § 1028A should run concurrently with one another in cases in which the underlying offenses are groupable under §3D1.2.
(iii) Whether the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2) are better achieved by imposing a concurrent or a consecutive sentence for multiple counts of 18 U.S.C. § 1028A.
(C) Imposition of Supervised Release.—In the case of a consecutive term of imprisonment imposed under subsection (a), any term of supervised release imposed is to run concurrently with any other term of supervised release imposed. See 18 U.S.C. § 3624(e).
3. Career Offenders Covered under Subsection (e).—
(A) Imposing Sentence.—The sentence imposed for a conviction under 18 U.S.C. § 924(c) or § 929(a) shall, under that statute, consist of a minimum term of imprisonment imposed to run consecutively to the sentence on any other count. Subsection (e) requires that the total punishment determined under §4B1.1(c) be apportioned among all the counts of conviction. In most cases this can be achieved by imposing the statutory minimum term of imprisonment on the 18 U.S.C. § 924(c) or § 929(a) count, subtracting that minimum term of imprisonment from the total punishment determined under §4B1.1(c), and then imposing the balance of the total punishment on the other counts of conviction. In some cases covered by subsection (e), a consecutive term of imprisonment longer than the minimum required by 18 U.S.C. § 924(c) or § 929(a) will be necessary in order both to achieve the total punishment determined by the court and to comply with the applicable statutory requirements.
(B) Examples.—The following examples illustrate the application of subsection (e) in a multiple count situation:
(i) The defendant is convicted of one count of violating 18 U.S.C. § 924(c) for possessing a firearm in furtherance of a drug trafficking offense (5 year mandatory minimum), and one count of violating 21 U.S.C. § 841(b)(1)(C) (20 year statutory maximum). Applying §4B1.1(c), the court determines that a sentence of 300 months is appropriate (applicable guideline range of 262-327). The court then imposes a sentence of 60 months on the 18 U.S.C. § 924(c) count, subtracts that 60 months from the total punishment of 300 months and imposes the remainder of 240 months on the 21 U.S.C. § 841 count. As required by statute, the sentence on the 18 U.S.C. § 924(c) count is imposed to run consecutively.
(ii) The defendant is convicted of one count of 18 U.S.C. § 924(c) (5 year mandatory minimum), and one count of violating 21 U.S.C. § 841(b)(1)(C) (20 year statutory maximum). Applying §4B1.1(c), the court determines that a sentence of 327 months is appropriate (applicable guideline range of 262-327). The court then imposes a sentence of 240 months on the 21 U.S.C. § 841 count and a sentence of 87 months on the 18 U.S.C. § 924(c) count to run consecutively to the sentence on the 21 U.S.C. § 841 count.
(iii) The defendant is convicted of two counts of 18 U.S.C. § 924(c) (5 year mandatory minimum on first count, 25 year mandatory minimum on second count) and one count of violating 18 U.S.C. § 113(a)(3) (10 year statutory maximum). Applying §4B1.1(c), the court determines that a sentence of 460 months is appropriate (applicable guideline range of 460-485 months). The court then imposes (I) a sentence of 60 months on the first 18 U.S.C. § 924(c) count; (II) a sentence of 300 months on the second 18 U.S.C. § 924(c) count; and (III) a sentence of 100 months on the 18 U.S.C. § 113(a)(3) count. The sentence on each count is imposed to run consecutively to the other counts.
(1) the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment if the court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons; and
(2) the sentence for the instant offense shall be imposed to run concurrently to the remainder of the undischarged term of imprisonment.
1. Consecutive Sentence - Subsection (a) Cases. Under subsection (a), the court shall impose a consecutive sentence when the instant offense was committed while the defendant was serving an undischarged term of imprisonment or after sentencing for, but before commencing service of, such term of imprisonment.
2. Application of Subsection (b).—
(A) In General.—Subsection (b) applies in cases in which all of the prior offense (i) is relevant conduct to the instant offense under the provisions of subsection (a)(1), (a)(2), or (a)(3) of §1B1.3 (Relevant Conduct); and (ii) has resulted in an increase in the Chapter Two or Three offense level for the instant offense. Cases in which only part of the prior offense is relevant conduct to the instant offense are covered under subsection (c).
(B) Inapplicability of Subsection (b).—Subsection (b) does not apply in cases in which the prior offense increased the Chapter Two or Three offense level for the instant offense but was not relevant conduct to the instant offense under §1B1.3(a)(1), (a)(2), or (a)(3) (e.g., the prior offense is an aggravated felony for which the defendant received an increase under §2L1.2 (Unlawfully Entering or Remaining in the United States), or the prior offense was a crime of violence for which the defendant received an increased base offense level under §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition)).
(C) Imposition of Sentence.—If subsection (b) applies, and the court adjusts the sentence for a period of time already served, the court should note on the Judgement in a Criminal Case Order (i) the applicable subsection (e.g., §5G1.3(b)); (ii) the amount of time by which the sentence is being adjusted; (iii) the undischarged term of imprisonment for which the adjustment is being given; and (iv) that the sentence imposed is a sentence reduction pursuant to §5G1.3(b) for a period of imprisonment that will not be credited by the Bureau of Prisons.
(D) Example.—The following is an example in which subsection (b) applies and an adjustment to the sentence is appropriate:
The defendant is convicted of a federal offense charging the sale of 40 grams of cocaine. Under §1B1.3, the defendant is held accountable for the sale of an additional 15 grams of cocaine, an offense for which the defendant has been convicted and sentenced in state court. The defendant received a nine-month sentence of imprisonment for the state offense and has served six months on that sentence at the time of sentencing on the instant federal offense. The guideline range applicable to the defendant is 12-18 months (Chapter Two offense level of level 16 for sale of 55 grams of cocaine; 3 level reduction for acceptance of responsibility; final offense level of level 13; Criminal History Category I). The court determines that a sentence of 13 months provides the appropriate total punishment. Because the defendant has already served six months on the related state charge as of the date of sentencing on the instant federal offense, a sentence of seven months, imposed to run concurrently with the three months remaining on the defendant’s state sentence, achieves this result.
3. Application of Subsection (c).—
(A) In General.—Under subsection (c), the court may impose a sentence concurrently, partially concurrently, or consecutively to the undischarged term of imprisonment. In order to achieve a reasonable incremental punishment for the instant offense and avoid unwarranted disparity, the court should consider the following:
(i) the factors set forth in 18 U.S.C. § 3584 (referencing 18 U.S.C. § 3553(a));
(ii) the type (e.g., determinate, indeterminate/parolable) and length of the prior undischarged sentence;
(iii) the time served on the undischarged sentence and the time likely to be served before release;
(iv) the fact that the prior undischarged sentence may have been imposed in state court rather than federal court, or at a different time before the same or different federal court; and
(v) any other circumstance relevant to the determination of an appropriate sentence for the instant offense.
(B) Partially Concurrent Sentence.—In some cases under subsection (c), a partially concurrent sentence may achieve most appropriately the desired result. To impose a partially concurrent sentence, the court may provide in the Judgment in a Criminal Case Order that the sentence for the instant offense shall commence on the earlier of (i) when the defendant is released from the prior undischarged sentence; or (ii) on a specified date. This order provides for a fully consecutive sentence if the defendant is released on the undischarged term of imprisonment on or before the date specified in the order, and a partially concurrent sentence if the defendant is not released on the undischarged term of imprisonment by that date.
(C) Undischarged Terms of Imprisonment Resulting from Revocations of Probation, Parole or Supervised Release.—Subsection (c) applies in cases in which the defendant was on federal or state probation, parole, or supervised release at the time of the instant offense and has had such probation, parole, or supervised release revoked. Consistent with the policy set forth in Application Note 4 and subsection (f) of §7B1.3 (Revocation of Probation or Supervised Release), the Commission recommends that the sentence for the instant offense be imposed consecutively to the sentence imposed for the revocation.
(D) Complex Situations.—Occasionally, the court may be faced with a complex case in which a defendant may be subject to multiple undischarged terms of imprisonment that seemingly call for the application of different rules. In such a case, the court may exercise its discretion in accordance with subsection (c) to fashion a sentence of appropriate length and structure it to run in any appropriate manner to achieve a reasonable punishment for the instant offense.
(E) Downward Departure.—Unlike subsection (b), subsection (c) does not authorize an adjustment of the sentence for the instant offense for a period of imprisonment already served on the undischarged term of imprisonment. However, in an extraordinary case involving an undischarged term of imprisonment under subsection (c), it may be appropriate for the court to downwardly depart. This may occur, for example, in a case in which the defendant has served a very substantial period of imprisonment on an undischarged term of imprisonment that resulted from conduct only partially within the relevant conduct for the instant offense. In such a case, a downward departure may be warranted to ensure that the combined punishment is not increased unduly by the fortuity and timing of separate prosecutions and sentencings. Nevertheless, it is intended that a departure pursuant to this application note result in a sentence that ensures a reasonable incremental punishment for the instant offense of conviction.
To avoid confusion with the Bureau of Prisons’ exclusive authority provided under 18 U.S.C. § 3585(b) to grant credit for time served under certain circumstances, the Commission recommends that any downward departure under this application note be clearly stated on the Judgment in a Criminal Case Order as a downward departure pursuant to §5G1.3(c), rather than as a credit for time served.
4. Downward Departure Provision.—In the case of a discharged term of imprisonment, a downward departure is not prohibited if the defendant (A) has completed serving a term of imprisonment; and (B) subsection (b) would have provided an adjustment had that completed term of imprisonment been undischarged at the time of sentencing for the instant offense. See §5K2.23 (Discharged Terms of Imprisonment).
1. Circumstances to Consider.—
(A) In General.—In determining whether a departure is warranted under this policy statement, the court shall consider the following non-exhaustive list of circumstances:
(i) The seriousness of the offense.
(ii) The involvement in the offense, if any, of members of the defendant’s family.
(iii) The danger, if any, to members of the defendant’s family as a result of the offense.
(B) Departures Based on Loss of Caretaking or Financial Support.—A departure under this policy statement based on the loss of caretaking or financial support of the defendant’s family requires, in addition to the court’s consideration of the non-exhaustive list of circumstances in subdivision (A), the presence of the following circumstances:
(i) The defendant’s service of a sentence within the applicable guideline range will cause a substantial, direct, and specific loss of essential caretaking, or essential financial support, to the defendant’s family.
(ii) The loss of caretaking or financial support substantially exceeds the harm ordinarily incident to incarceration for a similarly situated defendant. For example, the fact that the defendant’s family might incur some degree of financial hardship or suffer to some extent from the absence of a parent through incarceration is not in itself sufficient as a basis for departure because such hardship or suffering is of a sort ordinarily incident to incarceration.
(iii) The loss of caretaking or financial support is one for which no effective remedial or ameliorative programs reasonably are available, making the defendant’s caretaking or financial support irreplaceable to the defendant’s family.
(iv) The departure effectively will address the loss of caretaking or financial support.
(1) the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered;
(2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;
(3) the nature and extent of the defendant’s assistance;
(4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;
(5) the timeliness of the defendant’s assistance.
1. Under circumstances set forth in 18 U.S.C. § 3553(e) and 28 U.S.C. § 994(n), as amended, substantial assistance in the investigation or prosecution of another person who has committed an offense may justify a sentence below a statutorily required minimum sentence.
2. The sentencing reduction for assistance to authorities shall be considered independently of any reduction for acceptance of responsibility. Substantial assistance is directed to the investigation and prosecution of criminal activities by persons other than the defendant, while acceptance of responsibility is directed to the defendant’s affirmative recognition of responsibility for his own conduct.
3. Substantial weight should be given to the government’s evaluation of the extent of the defendant’s assistance, particularly where the extent and value of the assistance are difficult to ascertain.
(1) IN GENERAL.—The sentencing court may depart from the applicable guideline range if—
(A) in the case of offenses other than child crimes and sexual offenses, the court finds, pursuant to 18 U.S.C. § 3553(b)(1), that there exists an aggravating or mitigating circumstance; or
(B) in the case of child crimes and sexual offenses, the court finds, pursuant to 18 U.S.C. § 3553(b)(2)(A)(i), that there exists an aggravating circumstance, of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that, in order to advance the objectives set forth in 18 U.S.C. § 3553(a)(2), should result in a sentence different from that described.
(2) DEPARTURES BASED ON CIRCUMSTANCES OF A KIND NOT ADEQUATELY TAKEN INTO CONSIDERATION.—
(A) IDENTIFIED CIRCUMSTANCES.—This subpart (Chapter Five, Part K, Subpart 2 (Other Grounds for Departure)) identifies some of the circumstances that the Commission may have not adequately taken into consideration in determining the applicable guideline range (e.g., as a specific offense characteristic or other adjustment). If any such circumstance is present in the case and has not adequately been taken into consideration in determining the applicable guideline range, a departure consistent with 18 U.S.C. § 3553(b) and the provisions of this subpart may be warranted.
(B) UNIDENTIFIED CIRCUMSTANCES.—A departure may be warranted in the exceptional case in which there is present a circumstance that the Commission has not identified in the guidelines but that nevertheless is relevant to determining the appropriate sentence.
(3) DEPARTURES BASED ON CIRCUMSTANCES PRESENT TO A DEGREE NOT ADEQUATELY TAKEN INTO CONSIDERATION.—A departure may be warranted in an exceptional case, even though the circumstance that forms the basis for the departure is taken into consideration in determining the guideline range, if the court determines that such circumstance is present in the offense to a degree substantially in excess of, or substantially below, that which ordinarily is involved in that kind of offense.
(4) DEPARTURES BASED ON NOT ORDINARILY RELEVANT OFFENDER CHARACTERISTICS AND OTHER CIRCUMSTANCES.—An offender characteristic or other circumstance identified in Chapter Five, Part H (Offender Characteristics) or elsewhere in the guidelines as not ordinarily relevant in determining whether a departure is warranted may be relevant to this determination only if such offender characteristic or other circumstance is present to an exceptional degree.
(1) has been affirmatively and specifically identified as a permissible ground of downward departure in the sentencing guidelines or policy statements issued under section 994(a) of title 28, United States Code, taking account of any amendments to such sentencing guidelines or policy statements by act of Congress;
(2) has not adequately been taken into consideration by the Sentencing Commission in formulating the guidelines; and
(3) should result in a sentence different from that described.
The grounds enumerated in this Part K of Chapter Five are the sole grounds that have been affirmatively and specifically identified as a permissible ground of downward departure in these sentencing guidelines and policy statements. Thus, notwithstanding any other reference to authority to depart downward elsewhere in this Sentencing Manual, a ground of downward departure has not been affirmatively and specifically identified as a permissible ground of downward departure within the meaning of section 3553(b)(2) unless it is expressly enumerated in this Part K as a ground upon which a downward departure may be granted.
(1) such offender characteristics or other circumstances, taken together, make the case an exceptional one; and
(2) each such offender characteristic or other circumstance is—
(A) present to a substantial degree; and
(B) identified in the guidelines as a permissible ground for departure, even if such offender characteristic or other circumstance is not ordinarily relevant to a determination of whether a departure is warranted.
(1) Any circumstance specifically prohibited as a ground for departure in §§5H1.10 (Race, Sex, National Origin, Creed, Religion, and Socio-Economic Status), 5H1.12 (Lack of Guidance as a Youth and Similar Circumstances), the third and last sentences of 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction), the last sentence of 5K2.12 (Coercion and Duress), and 5K2.19 (Post-Sentencing Rehabilitative Efforts).
(2) The defendant’s acceptance of responsibility for the offense, which may be taken into account only under §3E1.1 (Acceptance of Responsibility).
(3) The defendant’s aggravating or mitigating role in the offense, which may be taken into account only under §3B1.1 (Aggravating Role) or §3B1.2 (Mitigating Role), respectively.
(4) The defendant’s decision, in and of itself, to plead guilty to the offense or to enter a plea agreement with respect to the offense (i.e., a departure may not be based merely on the fact that the defendant decided to plead guilty or to enter into a plea agreement, but a departure may be based on justifiable, non-prohibited reasons as part of a sentence that is recommended, or agreed to, in the plea agreement and accepted by the court. See §6B1.2 (Standards for Acceptance of Plea Agreement).
(5) The defendant’s fulfillment of restitution obligations only to the extent required by law including the guidelines (i.e., a departure may not be based on unexceptional efforts to remedy the harm caused by the offense).
(6) Any other circumstance specifically prohibited as a ground for departure in the guidelines.
1. Definitions.—For purposes of this policy statement:
"Circumstance" includes, as appropriate, an offender characteristic or any other offense factor.
"Depart", "departure", "downward departure", and "upward departure" have the meaning given those terms in Application Note 1 of the Commentary to §1B1.1 (Application Instructions).
2. Scope of this Policy Statement.—
(A) Departures Covered by this Policy Statement.—This policy statement covers departures from the applicable guideline range based on offense characteristics or offender characteristics of a kind, or to a degree, not adequately taken into consideration in determining that range. See 18 U.S.C. § 3553(b).
Subsection (a) of this policy statement applies to upward departures in all cases covered by the guidelines and to downward departures in all such cases except for downward departures in child crimes and sexual offenses.
Subsection (b) of this policy statement applies only to downward departures in child crimes and sexual offenses.
(B) Departures Covered by Other Guidelines.—This policy statement does not cover the following departures, which are addressed elsewhere in the guidelines: (i) departures based on the defendant’s criminal history (see Chapter Four (Criminal History and Criminal Livelihood), particularly §4A1.3 (Departures Based on Inadequacy of Criminal History Category)); (ii) departures based on the defendant’s substantial assistance to the authorities (see §5K1.1 (Substantial Assistance to Authorities)); and (iii) departures based on early disposition programs (see §5K3.1 (Early Disposition Programs)).
3. Kinds and Expected Frequency of Departures under Subsection (a).—As set forth in subsection (a), there generally are two kinds of departures from the guidelines based on offense characteristics and/or offender characteristics: (A) departures based on circumstances of a kind not adequately taken into consideration in the guidelines; and (B) departures based on circumstances that are present to a degree not adequately taken into consideration in the guidelines.
(A) Departures Based on Circumstances of a Kind Not Adequately Taken into Account in Guidelines.—Subsection (a)(2) authorizes the court to depart if there exists an aggravating or a mitigating circumstance in a case under 18 U.S.C. § 3553(b)(1), or an aggravating circumstance in a case under 18 U.S.C. § 3553(b)(2)(A)(i), of a kind not adequately taken into consideration in the guidelines.
(i) Identified Circumstances.—This subpart (Chapter Five, Part K, Subpart 2) identifies several circumstances that the Commission may have not adequately taken into consideration in setting the offense level for certain cases. Offense guidelines in Chapter Two (Offense Conduct) and adjustments in Chapter Three (Adjustments) sometimes identify circumstances the Commission may have not adequately taken into consideration in setting the offense level for offenses covered by those guidelines. If the offense guideline in Chapter Two or an adjustment in Chapter Three does not adequately take that circumstance into consideration in setting the offense level for the offense, and only to the extent not adequately taken into consideration, a departure based on that circumstance may be warranted.
(ii) Unidentified Circumstances.—A case may involve circumstances, in addition to those identified by the guidelines, that have not adequately been taken into consideration by the Commission, and the presence of any such circumstance may warrant departure from the guidelines in that case. However, inasmuch as the Commission has continued to monitor and refine the guidelines since their inception to take into consideration relevant circumstances in sentencing, it is expected that departures based on such unidentified circumstances will occur rarely and only in exceptional cases.
(B) Departures Based on Circumstances Present to a Degree Not Adequately Taken into Consideration in Guidelines.—
(i) In General.—Subsection (a)(3) authorizes the court to depart if there exists an aggravating or a mitigating circumstance in a case under 18 U.S.C. § 3553(b)(1), or an aggravating circumstance in a case under 18 U.S.C. § 3553(b)(2)(A)(i), to a degree not adequately taken into consideration in the guidelines. However, inasmuch as the Commission has continued to monitor and refine the guidelines since their inception to determine the most appropriate weight to be accorded the mitigating and aggravating circumstances specified in the guidelines, it is expected that departures based on the weight accorded to any such circumstance will occur rarely and only in exceptional cases.
(ii) Examples.—As set forth in subsection (a)(3), if the applicable offense guideline and adjustments take into consideration a circumstance identified in this subpart, departure is warranted only if the circumstance is present to a degree substantially in excess of that which ordinarily is involved in the offense. Accordingly, a departure pursuant to §5K2.7 for the disruption of a governmental function would have to be substantial to warrant departure from the guidelines when the applicable offense guideline is bribery or obstruction of justice. When the guideline covering the mailing of injurious articles is applicable, however, and the offense caused disruption of a governmental function, departure from the applicable guideline range more readily would be appropriate. Similarly, physical injury would not warrant departure from the guidelines when the robbery offense guideline is applicable because the robbery guideline includes a specific adjustment based on the extent of any injury. However, because the robbery guideline does not deal with injury to more than one victim, departure may be warranted if several persons were injured.
(C) Departures Based on Circumstances Identified as Not Ordinarily Relevant.—Because certain circumstances are specified in the guidelines as not ordinarily relevant to sentencing (see, e.g., Chapter Five, Part H (Specific Offender Characteristics)), a departure based on any one of such circumstances should occur only in exceptional cases, and only if the circumstance is present in the case to an exceptional degree. If two or more of such circumstances each is present in the case to a substantial degree, however, and taken together make the case an exceptional one, the court may consider whether a departure would be warranted pursuant to subsection (c). Departures based on a combination of not ordinarily relevant circumstances that are present to a substantial degree should occur extremely rarely and only in exceptional cases.
In addition, as required by subsection (e), each circumstance forming the basis for a departure described in this subdivision shall be stated with specificity in the written judgment and commitment order.
4. Downward Departures in Child Crimes and Sexual Offenses.—
(A) Definition.—For purposes of this policy statement, the term "child crimes and sexual offenses" means offenses under any of the following: 18 U.S.C. § 1201 (involving a minor victim), 18 U.S.C. § 1591, or chapter 71, 109A, 110, or 117 of title 18, United States Code.
(B) Standard for Departure.—
(i) Requirement of Affirmative and Specific Identification of Departure Ground.—The standard for a downward departure in child crimes and sexual offenses differs from the standard for other departures under this policy statement in that it includes a requirement, set forth in 18 U.S.C. § 3553(b)(2)(A)(ii)(I) and subsection (b)(1) of this guideline, that any mitigating circumstance that forms the basis for such a downward departure be affirmatively and specifically identified as a ground for downward departure in this part (i.e., Chapter Five, Part K).
(ii) Application of Subsection (b)(2).—The commentary in Application Note 3 of this policy statement, except for the commentary in Application Note 3(A)(ii) relating to unidentified circumstances, shall apply to the court’s determination of whether a case meets the requirement, set forth in subsection 18 U.S.C. § 3553(b)(2)(A)(ii)(II) and subsection (b)(2) of this policy statement, that the mitigating circumstance forming the basis for a downward departure in child crimes and sexual offenses be of kind, or to a degree, not adequately taken into consideration by the Commission.
5. Departures Based on Plea Agreements.—Subsection (d)(4) prohibits a downward departure based only on the defendant’s decision, in and of itself, to plead guilty to the offense or to enter a plea agreement with respect to the offense. Even though a departure may not be based merely on the fact that the defendant agreed to plead guilty or enter a plea agreement, a departure may be based on justifiable, non-prohibited reasons for departure as part of a sentence that is recommended, or agreed to, in the plea agreement and accepted by the court. See §6B1.2 (Standards for Acceptance of Plea Agreements). In cases in which the court departs based on such reasons as set forth in the plea agreement, the court must state the reasons for departure with specificity in the written judgment and commitment order, as required by subsection (e).
"(1) review the grounds of downward departure that are authorized by the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission; and
(2) promulgate, pursuant to section 994 of title 28, United States Code—
(A) appropriate amendments to the sentencing guidelines, policy statements, and official commentary to ensure that the incidence of downward departures is substantially reduced;
(B) a policy statement authorizing a departure pursuant to an early disposition program; and
(C) any other conforming amendments to the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission necessitated by the Act, including a revision of ...section 5K2.0".
(1) The size and strength of the victim, or other relevant physical characteristics, in comparison with those of the defendant.
(2) The persistence of the victim’s conduct and any efforts by the defendant to prevent confrontation.
(3) The danger reasonably perceived by the defendant, including the victim’s reputation for violence.
(4) The danger actually presented to the defendant by the victim.
(5) Any other relevant conduct by the victim that substantially contributed to the danger presented.
(6) The proportionality and reasonableness of the defendant’s response to the victim’s provocation.
1. For purposes of this policy statement—
"Significantly reduced mental capacity" means the defendant, although convicted, has a significantly impaired ability to (A) understand the wrongfulness of the behavior comprising the offense or to exercise the power of reason; or (B) control behavior that the defendant knows is wrongful.
1. "Crime of violence" and "controlled substance offense" are defined in §4B1.2 (Definitions of Terms Used in Section 4B1.1).
(1) The offense involved serious bodily injury or death.
(2) The defendant discharged a firearm or otherwise used a firearm or a dangerous weapon.
(3) The instant offense of conviction is a serious drug trafficking offense.
(4) The defendant has either of the following: (A) more than one criminal history point, as determined under Chapter Four (Criminal History and Criminal Livelihood) before application of subsection (b) of §4A1.3 (Departures Based on Inadequacy of Criminal History Category); or (B) a prior federal or state felony conviction, or any other significant prior criminal behavior, regardless of whether the conviction or significant prior criminal behavior is countable under Chapter Four.
1. Definitions.—For purposes of this policy statement:
"Dangerous weapon," "firearm," "otherwise used," and "serious bodily injury" have the meaning given those terms in the Commentary to §1B1.1 (Application Instructions).
"Serious drug trafficking offense" means any controlled substance offense under title 21, United States Code, other than simple possession under 21 U.S.C. § 844, that provides for a mandatory minimum term of imprisonment of five years or greater, regardless of whether the defendant meets the criteria of §5C1.2 (Limitation on Applicability of Statutory Mandatory Minimum Sentences in Certain Cases).
2. Repetitious or Significant, Planned Behavior.—Repetitious or significant, planned behavior does not meet the requirements of subsection (b). For example, a fraud scheme generally would not meet such requirements because such a scheme usually involves repetitive acts, rather than a single occurrence or single criminal transaction, and significant planning.
3. Other Circumstances to Consider.—In determining whether the court should depart under this policy statement, the court may consider the defendant’s (A) mental and emotional conditions; (B) employment record; (C) record of prior good works; (D) motivation for committing the offense; and (E) efforts to mitigate the effects of the offense.
(1) Age may be a reason to depart downward only if and to the extent permitted by §5H1.1.
(2) An extraordinary physical impairment may be a reason to depart downward only if and to the extent permitted by §5H1.4.
(3) Drug, alcohol, or gambling dependence or abuse is not a reason to depart downward.
1. Definition.—For purposes of this policy statement, "official insignia or uniform" has the meaning given that term in 18 U.S.C. § 716(c)(3).