AMENDMENT 572

Amendment: Section §5E1.2(b) is amended by deleting "Except as provided in subsections (f) and (i) below, or otherwise required by statute, the fine imposed shall be within the range" and inserting in lieu thereof "The applicable fine guideline range is that".

Section 5E1.2(c)(1) is amended by inserting "guideline" after "fine".

Section 5E1.2(c)(2) is amended by inserting "guideline" after "fine".

Section 5E1.2(d) is amended in subdivision (6) by deleting "and"; by redesignating subdivision (7) as subdivision (8); and by inserting after subdivision (6) the following new subdivision (7):

"(7) the expected costs to the government of any term of probation, or term of imprisonment and term of supervised release imposed; and".

Section 5E1.2 is amended by deleting "(e)"; by redesignating subsections (f), (g), and (h) as subsections (e), (f), and (g) respectively; and by deleting:

"(i) Notwithstanding of the provisions of subsection (c) of this section, but subject to the provisions of subsection (f) herein, the court shall impose an additional fine amount that is at least sufficient to pay the costs to the government of any imprisonment, probation, or supervised release ordered.".

The Commentary to §5E1.2 captioned "Application Notes" is amended in Note 6 by deleting "§5E1.2" and inserting in lieu thereof "this section".

The Commentary to §5E1.2 captioned "Application Notes" is amended in Note 7 by deleting:

"Subsection (i) provides for an additional fine sufficient to pay the costs of any imprisonment, probation, or supervised release ordered, subject to the defendant’s ability to pay as prescribed in subsection (f). In making a determination as to the amount of any fine to be imposed under this provision,"

and inserting in lieu thereof "In considering subsection (d)(7),".

Reason for Amendment: This amendment indirectly addresses a circuit court conflict regarding whether a court may impose a fine for costs of imprisonment and/or supervision when it has not imposed any punitive fine. Compare, United States v. Labat, 915 F.2d 603 (10th Cir. 1990)(requiring imposition of punitive fine before costs of imprisonment fine can be imposed) with United States v. Sellers, 42 F.3d 116 (2d Cir. 1994)(not requiring imposition of punitive fine before ordering costs of imprisonment fine), cert. denied, 116 S.Ct. 93 (1995).

Recognizing that a fine for costs of imprisonment and/or supervision is not statutorily required and rarely is imposed, the Commission has elected to dispense with the requirement that courts determine a separate, additional fine for such costs. Instead, the amendment provides that the court shall take such costs into consideration in determining the appropriate amount of a punitive fine.

Because, under the amended procedure, it no longer will be necessary to determine a separate fine increment for costs associated with implementing the sentence, the issue on which the circuit courts have differed should not arise. This procedure also should substantially simplify fine calculations, thereby allowing court and probation officer resources to be used more efficiently and productively.

Effective Date: The effective date of this amendment is November 1, 1997.