AMENDMENT 722

Amendment: The Commentary to §2L1.2 captioned "Application Notes" is amended in Note 1 by striking subdivision (B)(iii) as follows:

"(iii) ‘Crime of violence’ means any of the following: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.",

and inserting the following:

"(iii) ‘Crime of violence’ means any of the following offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.";

and in subdivision (B)(iv) by inserting ", or offer to sell" after "dispensing of".

The Commentary to §2L1.2 captioned "Application Notes" is amended by adding at the end the following:

"7. Departure Consideration.—There may be cases in which the applicable offense level substantially overstates or understates the seriousness of a prior conviction. In such a case, a departure may be warranted. Examples: (A) In a case in which subsection (b)(1)(A) or (b)(1)(B) does not apply and the defendant has a prior conviction for possessing or transporting a quantity of a controlled substance that exceeds a quantity consistent with personal use, an upward departure may be warranted. (B) In a case in which subsection (b)(1)(A) applies, and the prior conviction does not meet the definition of aggravated felony at 8 U.S.C. § 1101(a)(43), a downward departure may be warranted.".

Reason for Amendment: This amendment addresses certain discrete issues that have arisen in the application of §2L1.2 (Unlawfully Entering or Remaining in the United States). The amendment reflects input the Commission has received from federal judges, prosecutors, defense attorneys, and probation officers at several roundtable discussions and public hearings on the operation of §2L1.2.

First, the amendment clarifies the scope of the term "forcible sex offense" as that term is used in the definition of "crime of violence" in §2L1.2, Application Note 1(B)(iii). The amendment provides that the term "forcible sex offense" includes crimes "where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced." The amendment makes clear that forcible sex offenses, like all offenses enumerated in Application Note 1(B)(iii), "are always classified as 'crimes of violence,' regardless of whether the prior offense expressly has as an element the use, attempted use, or threatened use of physical force against the person of another," USSC, Guideline Manual, Supplement to Appendix C, Amendment 658. Application of the amendment, therefore, would result in an outcome that is contrary to cases excluding crimes in which "there may be assent in fact but no legally valid consent" from the scope of "forcible sex offenses." See, e.g., United States v. Gomez-Gomez, 493 F.3d 562, 567 (5th Cir. 2007) (holding that a rape conviction was not a forcible sex offense because it could have been based on assent given in response to a threat "to reveal embarrassing secrets" or after "an employer threatened to fire a subordinate"); United States v. Luciano-Rodriguez, 442 F.3d 320, 322–23 (5th Cir. 2006) (holding that a conviction for a sexual assault was not a forcible sex offense because it could have been based on assent when "the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it," when "the actor is a public servant who coerces the other person to submit or participate," or when "the actor is a member of the clergy or is a mental health service provider who exploits the emotional dependency engendered by their position"); United States v. Sarmiento-Funes, 374 F.3d 336, 341 (5th Cir. 2004) (holding that a conviction for sexual assault was not a forcible sex offense because it could have been based on assent that is "the product of deception or a judgment impaired by intoxication").

Second, the amendment clarifies that an "offer to sell" a controlled substance is a "drug trafficking offense" for purposes of subsection (b)(1) of §2L1.2 by adding "offer to sell" to the conduct listed in Application Note 1(B)(iv).

Finally, the amendment addresses the concern that in some cases the categorical enhancements in subsection (b) may not adequately reflect the seriousness of a prior offense. The amendment adds a departure provision that may apply in a case "in which the applicable offense level substantially overstates or understates the seriousness of a prior conviction." The amendment provides two examples of cases that may warrant such a departure. The first example suggests that an upward departure may be warranted in a case in which "subsection (b)(1)(A) or (b)(1)(B) does not apply and the defendant has a prior conviction for possessing or transporting a quantity of a controlled substance that exceeds a quantity consistent with personal use." The second example suggests that a downward departure may be warranted in a case in which "subsection (b)(1)(A) applies, and the prior conviction does not meet the definition of aggravated felony at 8 U.S.C. § 1101(a)(43)."

Effective Date: The effective date of this amendment is November 1, 2008.