AMENDMENT 674
Amendment: The Commentary to §1B1.3 captioned "Application Notes" is amended in Note 5 by striking the fifth sentence as follows:
"When not adequately taken into account by the applicable offense guideline, creation of a risk may provide a ground for imposing a sentence above the applicable guideline range.",
and inserting the following:
"In a case in which creation of risk is not adequately taken into account by the applicable offense guideline, an upward departure may be warranted.".
The Commentary to §1B1.4 captioned "Background" is amended in the fifth sentence by striking "sentencing above the guideline range" and inserting "an upward departure".
The Commentary to §1B1.8 captioned "Application Notes" is amended in Note 1 in the third sentence by striking "increase the defendant’s sentence above the applicable guideline range by upward departure" and inserting "depart upward"; and in the last sentence by striking "below the applicable guideline range" and inserting "downward".
Section 2B1.1(b)(10), as redesignated by Amendment 665, is amended in subdivision (A) by striking "device-making equipment" and inserting "(i) device-making equipment, or (ii) authentication feature"; in subdivision (B) by inserting "(i)" before "unauthorized access"; and by inserting ", or (ii) authentication feature" after "counterfeit access device"; and in subdivision (C)(i) by striking the semi-colon and inserting a comma.
The Commentary to §2B1.1 captioned "Application Notes" is amended in Note 4 by striking subdivision (C)(ii), as redesignated by Amendment 665, as follows:
"(ii) Special Rule.—A case described in subdivision (B)(i) of this note that involved a Postal Service (I) relay box; (II) collection box; (III) delivery vehicle; or (IV) satchel or cart, shall be considered to have involved at least 50 victims.",
and inserting the following:
"(ii) Special Rule.—A case described in subdivision (C)(i) of this note that involved—
(I) a United States Postal Service relay box, collection box, delivery vehicle, satchel, or cart, shall be considered to have involved at least 50 victims.
(II) a housing unit cluster box or any similar receptacle that contains multiple mailboxes, whether such receptacle is owned by the United States Postal Service or otherwise owned, shall, unless proven otherwise, be presumed to have involved the number of victims corresponding to the number of mailboxes in each cluster box or similar receptacle.".
The Commentary to §2B1.1 captioned "Application Notes" is amended in Note 7, as redesignated by Amendment 665, by striking "(b)(7)" each place it appears and inserting "(b)(8)"; and in Note 8, as redesignated by Amendment 665, by striking "(b)(8)" each place it appears and inserting "(b)(9)".
The Commentary to §2B1.1 captioned "Application Notes" is amended in Note 9, as redesignated by Amendment 665, by striking "(b)(9)" each place it appears and inserting "(b)(10)"; in subdivision (A) by inserting before the paragraph that begins "‘Counterfeit access device’" the following paragraph:
"‘Authentication feature’ has the meaning given that term in 18 U.S.C. § 1028(d)(1).";
in the paragraph that begins "‘Means of identification’" by striking "(d)(4)" and inserting "(d)(7)"; and in subdivision (B) by inserting "Authentication Features and" before "Identification Documents."; and by inserting "authentication features," after "involving".
The Commentary §2B1.1 captioned "Application Notes" is amended in Note 10, as redesignated by Amendment 665, by striking "(b)(10)" each place it appears and inserting "(b)(11)"; in Note 11, as redesignated by Amendment 665, by striking "(b)(12)" each place it appears and inserting "(b)(13)"; in Note 12, as redesignated by Amendment 665, by striking "(b)(12)" each place it appears and inserting "(b)(13)"; in Note 13, as redesignated by Amendment 665, by striking "(b)(13)" each place it appears and inserting "(b)(14)"; and by striking "(b)(12)(B)" each place it appears and inserting "(b)(13)(B)"; in Note 14, as redesignated by Amendment 665, by striking "(b)(14)" each place it appears and inserting "(b)(15)"; and in Note 19(B), as redesignated by Amendment 665, by striking "(b)(13)(iii)" and inserting "(b)(14)(iii)".
The Commentary to §2B1.1 captioned "Background" is amended in the ninth paragraph by striking "Subsection (b)(7)(D)" and inserting "Subsection (b)(8)(D)"; in the tenth paragraph by striking "Subsection (b)(8)" and inserting "Subsection (b)(9)"; in the eleventh paragraph by striking "Subsections (b)(9)(A) and (B)" and inserting "Subsections (b)(10)(A)(i) and (B)(i)"; in the twelfth paragraph by striking "Subsection (b)(9)(C)" and inserting "Subsection (b)(10)(C)"; in the thirteenth paragraph by striking "Subsection (b)(11)(B)" and inserting "Subsection (b)(12)(B)"; in the fourteenth paragraph by striking "Subsection (b)(12)(A)" and inserting "Subsection (b)(13)(A)"; in the fifteenth paragraph by striking "Subsection (b)(12)(B)" and inserting "Subsection (b)(13)(B)"; in the sixteenth paragraph by striking "Subsection (b)(13) implements" and inserting "Subsection (b)(14) implements"; and by striking "subsection (b)(13)(B)" and inserting "subsection (b)(14)(B)".
The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 7 by striking "sentence below the applicable guideline range" and inserting "downward departure".
The Commentary to §2R1.1 captioned "Application Notes" is amended in Note 7 by striking ", or even above,"; and by inserting ", or an upward departure," after "guideline range".
The Commentary to §2T1.8 captioned "Application Note" is amended in Note 1 by striking "a sentence above the guidelines" and inserting "an upward departure".
Chapter Two, Part T, Subpart 3, is amended in the "Introductory Commentary" by striking "imposing a sentence above that specified in the guideline in this Subpart" and inserting "departing upward".
Chapter Two, Part X is amended by adding at the end the following new Subpart:
"6. OFFENSES INVOLVING USE OF A MINOR IN A CRIME OF VIOLENCE
§2X6.1. Use of a Minor in a Crime of Violence
(a) Base Offense Level: 4 plus the offense level from the guideline applicable to the underlying crime of violence.
Commentary
Statutory Provision: 18 U.S.C. § 25.
Application Notes:
1. Definition.—For purposes of this guideline, ‘underlying crime of violence’ means the crime of violence as to which the defendant is convicted of using a minor.
2. Inapplicability of §3B1.4.—Do not apply the adjustment under §3B1.4 (Using a Minor to Commit a Crime).
3. Multiple Counts.—
(A) In a case in which the defendant is convicted under both 18 U.S.C. § 25 and the underlying crime of violence, the counts shall be grouped pursuant to subsection (a) of §3D1.2 (Groups of Closely Related Counts).
(B) Multiple counts involving the use of a minor in a crime of violence shall not be grouped under §3D1.2.".
The Commentary to §3C1.1 captioned "Application Notes" is amended in Note 5(b) by striking "3(g)" and inserting "4(g)".
Section 3D1.2(d) is amended by striking the period after "2P1.3" and inserting a semi-colon; and by inserting after the line that begins "§§2P1.1," the following new line:
"§2X6.1.".
The Commentary to §3D1.3 captioned "Application Notes" is amended in Note 4 by striking "a sentence above the guideline range" and inserting "an upward departure".
The Commentary to §4B1.2 captioned "Application Notes" is amended in Note 1 in the first sentence of the paragraph that begins "‘Crime of violence’ does not include" by inserting ", unless the possession was of a firearm described in 26 U.S.C. § 5845(a)" before the period.
The Commentary to §4B1.2 captioned "Application Notes" is amended in Note 1 by inserting before the paragraph that begins "Unlawfully possessing a prohibited flask" the following paragraph:
"Unlawfully possessing a firearm described in 26 U.S.C. § 5845(a) (e.g., a sawed-off shotgun or sawed-off rifle, silencer, bomb, or machine gun) is a ‘crime of violence’.".
The Commentary to §4B1.4 captioned "Application Note" is amended by striking "Note" in the heading and inserting "Notes"; and by adding at the end the following:
"2. Application of §4B1.4 in Cases Involving Convictions Under 18 U.S.C. § 844(h), § 924(c), or § 929(a).—If a sentence under this guideline is imposed in conjunction with a sentence for a conviction under 18 U.S.C. § 844(h), § 924(c), or § 929(a), do not apply either subsection (b)(3)(A) or (c)(2). A sentence under 18 U.S.C. § 844(h), § 924(c), or § 929(a) accounts for the conduct covered by subsections (b)(3)(A) and (c)(2) because of the relatedness of the conduct covered by these subsections to the conduct that forms the basis for the conviction under 18 U.S.C. § 844(h), § 924(c), or § 929(a).
In a few cases, the rule provided in the preceding paragraph may result in a guideline range that, when combined with the mandatory consecutive sentence under 18 U.S.C. § 844(h), § 924(c), or § 929(a), produces a total maximum penalty that is less than the maximum of the guideline range that would have resulted had there not been a count of conviction under 18 U.S.C. § 844(h), § 924(c), or § 929(a) (i.e., the guideline range that would have resulted if subsections (b)(3)(A) and (c)(2) had been applied). In such a case, an upward departure may be warranted so that the conviction under 18 U.S.C. § 844(h), § 924(c), or § 929(a) does not result in a decrease in the total punishment. An upward departure under this paragraph shall not exceed the maximum of the guideline range that would have resulted had there not been a count of conviction under 18 U.S.C. § 844(h), § 924(c), or § 929(a).".
Section 5C1.2(a) is amended by striking "verbatim".
The Commentary to §5G1.2 captioned "Application Notes" is amended in Note 3(B)(iii) in the first sentence by striking "2113(a) (20 year" and inserting "113(a)(3) (10 year"; in the second sentence by striking "400" and inserting "460", and by striking "360-life" and inserting "460-485 months"; and in the third sentence by striking "40" and inserting"100", and by striking "2113(a)" and inserting "113(a)(3)".
Section 5H1.1 is amended by striking "sentence should be outside the applicable guideline range" and inserting "departure is warranted"; by striking "impose a sentence below the applicable guideline range when" and inserting "depart downward in a case in which"; and by inserting "; Gambling Addiction" after "Abuse".
Section 5H1.2 is amended by striking "sentence should be outside the applicable guideline range" and inserting "departure is warranted".
Section 5H1.3 is amended by striking "sentence should be outside the applicable guideline range" and inserting "departure is warranted".
Section 5H1.5 is amended by striking "sentence should be outside the applicable guideline range" and inserting "departure is warranted".
Chapter Five, Part H is amended by striking §5H1.6 as follows:
"§5H1.6. Family Ties and Responsibilities (Policy Statement)
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.
*Note: Section 401(b)(4) of Public Law 108-21 (the "Protect Act") directly amended §5H1.6 to add the second paragraph, effective April 30, 2003. The Commission incorporated this direct amendment in the Supplement to the 2002 Guidelines Manual but inadvertently omitted the second paragraph in the Federal Register notice of amendments dated October 21, 2003. The policy statement should be read as containing the second paragraph, pursuant to the direct amendment made by Public Law 108–21.",
and inserting the following:
"§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.".
The Commentary to §5H1.6 is amended by adding at the end the following:
"Background: Section 401(b)(4) of Public Law 108–21 directly amended this policy statement to add the second paragraph, effective April 30, 2003.".
Section 5H1.11 is amended by striking "sentence should be outside the applicable guideline range" and inserting "departure is warranted".
Section 5H1.12 is amended by striking "grounds for imposing a sentence outside the applicable guideline range" and inserting "in determining whether a departure is warranted".
Section 5K2.12 is amended by striking "decrease the sentence below the applicable guideline range" and inserting "depart downward".
Section 5K2.13 is amended by striking "sentence below the applicable guideline range" and inserting "downward departure".
Section 5K2.14 is amended by striking "increase the sentence above the guideline range" and inserting "depart upward".
Section 5K2.16 is amended by striking "departure below the applicable guideline range for that offense" and inserting "downward departure".
Section 5K2.21 is amended by striking "increase the sentence above the guideline range" and inserting "depart upward".
Section 5K2.22 is amended by striking "impose a sentence below the applicable guideline range" each place it appears and inserting "depart downward"; and by striking "for imposing a sentence below the guidelines" and inserting "to depart downward".
Section 5K2.23 is amended by striking "sentence below the applicable guideline range" and inserting "downward departure".
Section 6A1.1 is amended by striking the following:
"A probation officer shall conduct a presentence investigation and report to the court before the imposition of sentence unless the court finds that there is information in the record sufficient to enable the meaningful exercise of sentencing authority pursuant to 18 U.S.C. § 3553, and the court explains this finding on the record. Rule 32(b)(1), Fed. R. Crim. P. The defendant may not waive preparation of the presentence report.",
and inserting the following:
"(a) The probation officer must conduct a presentence investigation and submit a report to the court before it imposes sentence unless—
(1) 18 U.S.C. § 3593(c) or another statute requires otherwise; or
(2) the court finds that the information in the record enables it to meaningfully exercise its sentencing authority under 18 U.S.C. § 3553, and the court explains its finding on the record.
Rule 32(c)(1)(A), Fed. R. Crim. P.
(b) The defendant may not waive preparation of the presentence report.".
The Commentary to §6A1.1 is amended by striking:
" A thorough presentence investigation is essential in determining the facts relevant to sentencing. In order to ensure that the sentencing judge will have information sufficient to determine the appropriate sentence, Congress deleted provisions of Rule 32(c), Fed. R. Crim. P., which previously permitted the defendant to waive the presentence report. Rule 32(b)(1) permits the judge to dispense with a presentence report, but only after explaining, on the record, why sufficient information is already available.",
and inserting the following:
" A thorough presentence investigation ordinarily is essential in determining the facts relevant to sentencing. Rule 32(c)(1)(A) permits the judge to dispense with a presentence report in certain limited circumstances, as when a specific statute requires or when the court finds sufficient information in the record to enable it to exercise its statutory sentencing authority meaningfully and explains its finding on the record.".
Chapter Six, Part A is amended by striking §6A1.2 and its accompanying commentary as follows:
"§6A1.2. Disclosure of Presentence Report; Issues in Dispute (Policy Statement)
Courts should adopt procedures to provide for the timely disclosure of the presentence report; the narrowing and resolution, where feasible, of issues in dispute in advance of the sentencing hearing; and the identification for the court of issues remaining in dispute. Rule 32(b)(6), Fed. R. Crim. P.
Commentary
Application Note:
1. Under Rule 32, Fed. R. Crim. P., if the court intends to consider a sentence outside the applicable guideline range on a ground not identified as a ground for departure either in the presentence report or a pre-hearing submission, it shall provide reasonable notice that it is contemplating such ruling, specifically identifying the grounds for the departure. Burns v. United States, 501 U.S. 129, 135-39 (1991).
Background: In order to focus the issues prior to sentencing, the parties are required to respond in writing to the presentence report and to identify any issues in dispute. Rule 32(b)(6)(B), Fed. R. Crim. P.",
and inserting the following:
"§6A1.2. Disclosure of Presentence Report; Issues in Dispute (Policy Statement)
(a) The probation officer must give the presentence report to the defendant, the defendant’s attorney, and an attorney for the government at least 35 days before sentencing unless the defendant waives this minimum period. Rule 32(e)(2), Fed. R. Crim. P.
(b) Within 14 days after receiving the presentence report, the parties must state in writing any objections, including objections to material information, sentencing guideline ranges, and policy statements contained in or omitted from the report. An objecting party must provide a copy of its objections to the opposing party and to the probation officer. After receiving objections, the probation officer may meet with the parties to discuss the objections. The probation officer may then investigate further and revise the presentence report accordingly. Rule 32(f), Fed. R. Crim. P.
(c) At least 7 days before sentencing, the probation officer must submit to the court and to the parties the presentence report and an addendum containing any unresolved objections, the grounds for those objections, and the probation officer’s comments on them. Rule 32(g), Fed. R. Crim. P.
Background: In order to focus the issues prior to sentencing, the parties are required to respond in writing to the presentence report and to identify any issues in dispute. See Rule 32(f), Fed. R. Crim. P.".
Section 6A1.3(b) is amended by striking "Rule 32(c)(1)" and inserting "Rule 32(i)".
The Commentary to §6A1.3 is amended by striking the first paragraph as follows:
" In pre-guidelines practice, factors relevant to sentencing were often determined in an informal fashion. The informality was to some extent explained by the fact that particular offense and offender characteristics rarely had a highly specific or required sentencing consequence. This situation no longer exists under sentencing guidelines. The court’s resolution of disputed sentencing factors usually has a measurable effect on the applicable punishment. More formality is therefore unavoidable if the sentencing process is to be accurate and fair.";
by striking "117 S. Ct. 633, 635" and inserting "519 U.S. 148, 154"; and by striking "117 S. Ct. at 637" and inserting "519 U.S. at 157".
Chapter Six, Part A is amended by adding at the end the following:
"§6A1.4. Notice of Possible Departure (Policy Statement)
Before the court may depart from the applicable sentencing guideline range on a ground not identified for departure either in the presentence report or in a party’s prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure. The notice must specify any ground on which the court is contemplating a departure. Rule 32(h), Fed. R. Crim. P.
Commentary
Background: The Federal Rules of Criminal Procedure were amended, effective December 1, 2002, to incorporate into Rule 32(h) the holding in Burns v. United States, 501 U.S. 129, 138-39 (1991). This policy statement parallels Rule 32(h), Fed. R. Crim. P.".
Chapter Six, Part B is amended by striking the Introductory Commentary as follows:
" Introductory Commentary
Policy statements governing the acceptance of plea agreements under Rule 11(e)(1), Fed. R. Crim. P., are intended to ensure that plea negotiation practices:
(1) promote the statutory purposes of sentencing prescribed in 18 U.S.C. § 3553(a); and
(2) do not perpetuate unwarranted sentencing disparity.
These policy statements are a first step toward implementing 28 U.S.C. § 994(a)(2)(E). Congress indicated that it expects judges ‘to examine plea agreements to make certain that prosecutors have not used plea bargaining to undermine the sentencing guidelines.’ S. Rep. 98-225, 98th Cong., 1st Sess. 63, 167 (1983). In pursuit of this goal, the Commission shall study plea agreement practice under the guidelines and ultimately develop standards for judges to use in determining whether to accept plea agreements. Because of the difficulty in anticipating problems in this area, and because the sentencing guidelines are themselves to some degree experimental, substantive restrictions on judicial discretion would be premature at this stage of the Commission’s work.
The present policy statements move in the desired direction in two ways. First, the policy statements make clear that sentencing is a judicial function and that the appropriate sentence in a guilty plea case is to be determined by the judge. This is a reaffirmation of pre-guidelines practice. Second, the policy statements ensure that the basis for any judicial decision to depart from the guidelines will be explained on the record. Explanations will be carefully analyzed by the Commission and will pave the way for more detailed policy statements presenting substantive criteria to achieve consistency in this aspect of the sentencing process.",
and inserting the following:
" Introductory Commentary
Policy statements governing the acceptance of plea agreements under Rule 11(c), Fed. R. Crim. P., are intended to ensure that plea negotiation practices: (1) promote the statutory purposes of sentencing prescribed in 18 U.S.C. § 3553(a); and (2) do not perpetuate unwarranted sentencing disparity.
These policy statements make clear that sentencing is a judicial function and that the appropriate sentence in a guilty plea case is to be determined by the judge. The policy statements also ensure that the basis for any judicial decision to depart from the guidelines will be explained on the record.".
Section 6B1.1 is amended by striking subsections (a), (b), and (c) as follows:
"(a) If the parties have reached a plea agreement, the court shall, on the record, require disclosure of the agreement in open court or, on a showing of good cause, in camera. Rule 11(e)(2), Fed. R. Crim. P.
(b) If the plea agreement includes a nonbinding recommendation pursuant to Rule 11(e)(1)(B), the court shall advise the defendant that the court is not bound by the sentencing recommendation, and that the defendant has no right to withdraw the defendant’s guilty plea if the court decides not to accept the sentencing recommendation set forth in the plea agreement.
(c) The court shall defer its decision to accept or reject any nonbinding recommendation pursuant to Rule 11(e)(1)(B), and the court’s decision to accept or reject any plea agreement pursuant to Rules 11(e)(1)(A) and 11(e)(1)(C) until there has been an opportunity to consider the presentence report, unless a report is not required under §6A1.1.",
and inserting the following:
"(a) The parties must disclose the plea agreement in open court when the plea is offered, unless the court for good cause allows the parties to disclose the plea agreement in camera. Rule 11(c)(2), Fed. R. Crim. P.
(b) To the extent the plea agreement is of the type specified in Rule 11(c)(1)(B), the court must advise the defendant that the defendant has no right to withdraw the plea if the court does not follow the recommendation or request. Rule 11(c)(3)(B), Fed. R. Crim. P.
(c) To the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report. Rule 11(c)(3)(A), Fed. R. Crim. P.".
The Commentary to §6B1.1 is amended in the first paragraph by striking "Rule 11(e)" and inserting "Rule 11(c)";
and by striking the second paragraph as follows:
" Section 6B1.1(c) deals with the timing of the court’s decision whether to accept the plea agreement. Rule 11(e)(2) gives the court discretion to accept the plea agreement immediately or defer acceptance pending consideration of the presentence report. Prior to the guidelines, an immediate decision was permissible because, under Rule 32(c), Fed. R. Crim. P., the defendant could waive preparation of the presentence report. Section 6B1.1(c) reflects the changes in practice required by §6A1.1 (Presentence Report) and amended Rule 32(c)(1). Since a presentence report normally will be prepared, the court must defer acceptance of the plea agreement until the court has had an opportunity to consider the presentence report.",
and inserting the following:
" Section 6B1.1(c) deals with the timing of the court’s decision regarding whether to accept or reject the plea agreement. Rule 11(c)(3)(A) gives the court discretion to accept or reject the plea agreement immediately or defer a decision pending consideration of the presentence report. Given that a presentence report normally will be prepared, the Commission recommends that the court defer acceptance of the plea agreement until the court has reviewed the presentence report.".
Section 6B1.3 is amended by striking:
"If a plea agreement pursuant to Rule 11(e)(1)(A) or Rule 11(e)(1)(C) is rejected, the court shall afford the defendant an opportunity to withdraw the defendant’s guilty plea. Rule 11(e)(4), Fed. R. Crim. P.",
and inserting the following:
"If the court rejects a plea agreement containing provisions of the type specified in Rule 11(c)(1)(A) or (C), the court must do the following on the record and in open court (or, for good cause, in camera)—
(a) inform the parties that the court rejects the plea agreement;
(b) advise the defendant personally that the court is not required to follow the plea agreement and give the defendant an opportunity to withdraw the plea; and
(c) advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorably toward the defendant than the plea agreement contemplated.
Rule 11(c)(5), Fed. R. Crim. P.".
The Commentary to §6B1.3 is amended by striking "Rule 11(e)(4)"and inserting "Rule 11(c)(5)"; and by striking "that would require dismissal of charges or imposition of a specific sentence." and inserting a period.
Appendix A is amended by inserting after the line referenced to 18 U.S.C. § 4 the following new line:
"18 U.S.C. § 25 2X6.1".
Reason for Amendment: This nine-part amendment consists of four technical and conforming amendments and five amendments of a more substantive nature, some of which are in response to new legislation.
First, this amendment corrects a typographical error in Application Note 4 to §3C1.1 (Obstructing or Impeding the Administration of Justice) by changing a reference to Application Note 3(g) to 4(g).
Second, this amendment makes a number of conforming changes to various guideline provisions and commentary as a result of departure amendments previously made in furtherance of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, Pub. L. 108–21 (the "PROTECT Act").
Third, this amendment corrects an error in an example provided in Application Note 3(B)(iii) of §5G1.2 (Sentencing on Multiple Counts of Conviction).
Fourth, this amendment generally updates Chapter Six (Sentencing Procedures and Plea Agreements) in response to a number of amendments that were made to the Federal Rules of Criminal Procedure effective December 1, 2002. While some of these changes to the Rules were substantive, the bulk of the changes to Rules 11 and 32 of the Federal Rules of Criminal Procedure were organizational and stylistic. These guideline amendments conform to those changes made to the Federal Rules of Criminal Procedure with respect to such issues as deadlines for disputed issues and requirements for disclosure of presentence reports, as well as procedures the court must follow in rejecting certain plea agreements. Certain outdated commentary also has been deleted.
Fifth, this amendment broadens the special multiple victim rule in Application Note 4(C)(ii) of §2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States), as redesignated by Amendment 3 of this document, for offenses involving stolen United States mail. The rule is expanded to include theft of mail from housing unit cluster boxes, whether owned by the United States Postal Service or otherwise. The amendment provides a presumption that a theft from such a cluster box involves the number of victims corresponding to the number of mailboxes contained in the cluster box. The same rationale for the original special rule applies to this expansion: (i) unique proof problems in that once entry is gained to such a cluster box and mail is removed, it is difficult to determine the number of persons from whom mail was stolen; (ii) the frequently significant, but difficult to quantify, non-monetary losses; and (iii) the importance of maintaining the integrity of the United States mail service. See USSG App. C (Vol. II) (Amendment 617). These reasons are equally valid whether the mail receptacle is owned by the United States Postal Service or is privately owned.
Sixth, this amendment modifies §2B1.1(b)(10), as redesignated by Amendment 3 of this document, which provides a two-level enhancement and a minimum offense level of 12, in response to the Secure Authentication Feature and Enhanced Identification Defense Act of 2003 (the "SAFE ID Act") (section 607 of the PROTECT Act, Pub. L. 108–21). That Act created a new offense at 18 U.S.C. § 1028(a)(8), prohibiting the trafficking of authentication features (e.g., a hologram or symbol used by a government agency to determine whether a document is counterfeit, altered, or otherwise falsified), and amended 18 U.S.C. § 1028 to prohibit the transfer or possession of authentication features. This amendment makes §2B1.1(b)(10) applicable to offenses involving authentication features.
Seventh, this amendment creates a new guideline at §2X6.1 (Use of a Minor to Commit a Crime of Violence). This new guideline is in response to a new offense provided at 18 U.S.C. § 25 (Use of Minors in Crimes of Violence), which was created by section 601 of the PROTECT Act. The new offense prohibits any person 18 years of age or older from intentionally using a minor to commit a crime of violence or to assist in avoiding detection or apprehension for such offense. For a first conviction, the penalty is twice the maximum term of imprisonment that would otherwise be authorized for the offense, and for each subsequent conviction, three times the maximum term of imprisonment that would otherwise be authorized for the offense.
While consideration was given to expanding the existing two-level adjustment at §3B1.4 (Using a Minor to Commit a Crime), the Commission determined it was more appropriate and consistent with guideline construction to create a new guideline for the new substantive offense created by Congress in the PROTECT Act. This new guideline at §2X6.1 directs the court to increase by 4 levels the offense level from the guideline applicable to the underlying crime of violence. Application notes are included to provide that the adjustment under §3B1.4 is inapplicable if §2X6.1 is used and to provide rules for the grouping of multiple counts.
Eighth, this amendment expands the definition of "crime of violence" in Application Note 1 to §4B1.2 (Definitions of Terms Used in Section 4B1.1) to include unlawful possession of any firearm described in 26 U.S.C. § 5845(a). The amendment also excepts possession of those firearms described in 26 U.S.C. § 5845(a) from the rule that excludes felon in possession offenses from the definition of "crime of violence." Congress has determined that those firearms described in 26 U.S.C. § 5845(a) are inherently dangerous and when possessed unlawfully, serve only violent purposes. In the National Firearms Act, Pub. L. 90–618, Congress required that these firearms be registered with the National Firearms Registration and Transfer Record. A number of courts have held that possession of certain of these firearms, such as a sawed-off shotgun, is a "crime of violence" due to the serious potential risk of physical injury to another person. The amendment’s categorical rule incorporating 26 U.S.C. § 5845(a) firearms includes short-barreled rifles and shotguns, machine guns, silencers, and destructive devices. It will affect determinations both of career offender status under Chapter Four, Part B and also of appropriate base offense levels in §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition).
Ninth, this amendment provides an application note in §4B1.4 (Armed Career Criminal) to address an apparent "double counting" issue that appears to be present when a defendant is convicted both of 18 U.S.C. § 922(g) (Felon in Possession) and also of an offense such as 18 U.S.C. § 924(c) (Use of a Firearm in Relation to Any Crime of Violence or Drug Trafficking Crime) or a similar offense carrying a mandatory minimum consecutive penalty, such as 18 U.S.C. § 844(h) relating to use of explosives, or 18 U.S.C. § 929(a) relating to use of restricted ammunition.
The basis for the mandatory minimum, consecutive penalties in these offenses is the same as the basis for the enhanced guideline offense level 34 at §4B1.4(b)(3)(A) and the enhanced Criminal History Category VI at §4B1.4(c)(2); i.e., the use or possession of the firearm in connection with a crime of violence or controlled substance offense. The Commission determined that the mandatory minimum, consecutive sentences in these statutes are sufficient to take into account the aggravated conduct referenced in §4B1.4.
An upward departure is provided for those cases that result in a total maximum penalty that is less than the maximum of the guideline range that would have resulted if the enhanced offense level under §4B1.4(b)(3)(A) and the criminal history enhancement under §4B1.4(c)(2) had been applied. However, the extent of the upward departure shall not exceed the maximum of the guideline range that would have resulted had there not been a conviction under 18 U.S.C. § 924(c), § 844(h), or § 929(a).
Effective Date: The effective date of this amendment is November 1, 2004.