Amendment: The Commentary to §3C1.3 captioned "Application Note" is amended in Note 1 by striking "as adjusted" and inserting "including, as in any other case in which a Chapter Three adjustment applies (see §1B1.1 (Application Instructions)), the adjustment provided"; and by adding at the end "Similarly, if the applicable adjusted guideline range is 30-37 months and the court determines a ‘total punishment’ of 30 months is appropriate, a sentence of 24 months for the underlying offense plus 6 months under 18 U.S.C. § 3147 would satisfy this requirement.".

Reason for Amendment: This amendment clarifies Application Note 1 in §3C1.3 (Commission of Offense While on Release). Section 3C1.3 (formerly §2J1.7, see Appendix C to the Guidelines Manual, Amendment 684) provides a three-level adjustment if the defendant is subject to the statutory enhancement at 18 U.S.C. § 3147—that is, if the defendant has committed the underlying offense while on release. Application Note 1 to §3C1.3 states that, in order to comply with the statute’s requirement that a consecutive sentence be imposed, the sentencing court must "divide the sentence on the judgment form between the sentence attributable to the underlying offense and the sentence attributable to the enhancement."

The Second and Seventh Circuits have held that, according to the terms of Application Note 2 to §2J1.7 (now Application Note 1 to §3C1.3), a sentencing court cannot apportion to the underlying offense more than the maximum of the guideline range absent the three-level adjustment. See United States v. Confredo, 528 F.3d 143 (2d Cir. 2008); United States v. Stevens, 66 F.3d 431 (2d Cir. 1995); United States v. Wilson, 966 F.2d 243 (7th Cir. 1992).

The amendment clarifies that the court determines the applicable guideline range for a defendant who committed an offense while on release and is subject to the enhancement at 18 U.S.C. § 3147 as in any other case. Therefore, under ordinary guideline application principles, only one guideline range applies to such a defendant. See §1B1.1 (Application Instructions) (instructing the sentencing court to, in this order: (1) determine the offense guideline applicable to the offense of conviction (the underlying offense); (2) determine the base offense level and specific offense characteristics, and follow other instructions in Chapter Two; (3) apply adjustments from Chapter Three; and, ultimately, (4) "[d]etermine the guideline range in Part A of Chapter Five that corresponds to the offense level and criminal history category determined above"). At that point, the court determines an appropriate "total punishment" using that applicable guideline range, and then divides the total sentence between the underlying offense and the section 3147 enhancement as the court considers appropriate.

Effective Date: The effective date of this amendment is November 1, 2009.