Amendment: The Commentary to §4A1.2 captioned "Application Notes" is amended in Note 1 by inserting the following additional sentence at the end of the first paragraph:

"Conduct that is part of the instant offense means conduct that is relevant conduct to the instant offense under the provisions of §1B1.3 (Relevant Conduct).".

The Commentary to §4A1.2 captioned "Application Notes" is amended in Note 6 in the first sentence of the first paragraph by inserting "(A)" immediately before "have been reversed"; by deleting the comma following "law"; and by inserting "or (B) have been ruled constitutionally invalid in a prior case" immediately before "are not to be counted";

The Commentary to §4A1.2 captioned "Application Notes" is amended in Note 6 by deleting the second sentence as follows:

"Also, sentences resulting from convictions that a defendant shows to have been previously ruled constitutionally invalid are not to be counted.",

and inserting in lieu thereof:

"With respect to the current sentencing proceeding, this guideline and commentary do not confer upon the defendant any right to attack collaterally a prior conviction or sentence beyond any such rights otherwise recognized in law (e.g., 21 U.S.C. § 851 expressly provides that a defendant may collaterally attack certain prior convictions).";

and by beginning a new paragraph with the third sentence.

The Commentary to §4A1.2 captioned "Background" is amended by deleting the second paragraph as follows:

"The Commission leaves for court determination the issue of whether a defendant may collaterally attack at sentencing a prior conviction.".

Reason for Amendment: This amendment expressly provides that the term "part of the instant offense" in §4A1.2(a)(1) means relevant conduct as defined in §1B1.3 (Relevant Conduct) to avoid double counting and ensure consistency with other guideline provisions.

This amendment also clarifies the Commission’s intent with respect to whether §4A1.2 confers on defendants a right to attack prior convictions collaterally at sentencing, an issue on which the appellate courts have differed. Compare, e.g., United States v. Canales, 960 F.2d 1311, 1316 (5th Cir. 1992) (Section 4A1.2 commentary indicates Commission intended to grant sentencing courts discretion to entertain initial defendant challenges to prior convictions); United States v. Jacobetz, 955 F.2d 786, 805 (2d Cir.) (similar), cert. denied, 113 S. Ct. 104 (1992); United States v. Cornog, 945 F.2d 1504, 1511 (11th Cir. 1991) (similar) with United States v. Hewitt, 942 F.2d 1270, 1276 (8th Cir. 1991) (commentary indicates defendants may only challenge use of prior convictions at sentencing by showing such conviction previously ruled invalid). This amendment addresses this inter-circuit conflict in interpreting the commentary by stating more clearly that the Commission does not intend to enlarge a defendant’s right to attack collaterally a prior conviction at the current sentencing proceeding beyond any right otherwise recognized in law.

Effective Date: The effective date of this amendment is November 1, 1993.