Amendment: The Commentary to §4A1.2 captioned "Application Notes" is amended in Note 8 by deleting the last sentence as follows:
"If the government is able to show that a sentence imposed outside this time period is evidence of similar misconduct or the defendant’s receipt of a substantial portion of income from criminal livelihood, the court may consider this information in determining whether to depart and sentence above the applicable guideline range.",
and by inserting in lieu thereof:
"If the court finds that a sentence imposed outside this time period is evidence of similar, or serious dissimilar, criminal conduct, the court may consider this information in determining whether an upward departure is warranted under §4A1.3 (Adequacy of Criminal History Category).".
Reason for Amendment: This amendment clarifies that dissimilar, serious prior offenses outside the applicable time period may be considered in determining whether an upward departure is warranted under §4A1.3. The amendment provides additional Commission guidance on an issue that has produced conflicting decisions among the courts of appeals. Compare, e.g., United States v. Leake, 908 F.2d 550, 554 (9th Cir. 1990) (upward departure impermissible for remote prior convictions dissimilar to instant offense) and United States v. Samuels, 938 F.2d 210, 215 (D.C. Cir. 1991) (suggesting the same) with United States v. Williams, 910 F.2d 1574, 1579 (7th Cir. 1990) (although older prior crimes dissimilar to instant offense, upward departure permissible if convictions are reliable information of increased recidivism risk), rev’d on other grounds, 112 S. Ct. 1112 (1992) and United States v. Russell, 905 F.2d 1439, 1444 (10th Cir. 1990) (same).
Effective Date: The effective date of this amendment is November 1, 1992.