AMENDMENT 739

Amendment: Chapter Five, Part H, is amended in the Introductory Commentary by striking the first paragraph as follows:

" The following policy statements address the relevance of certain offender characteristics to the determination of whether a sentence should be outside the applicable guideline range and, in certain cases, to the determination of a sentence within the applicable guideline range. Under 28 U.S.C. § 994(d), the Commission is directed to consider whether certain specific offender characteristics ‘have any relevance to the nature, extent, place of service, or other incidents of an appropriate sentence’ and to take them into account only to the extent they are determined to be relevant by the Commission.",

and inserting the following:

" This Part addresses the relevance of certain specific offender characteristics in sentencing. The Sentencing Reform Act (the ‘Act’) contains several provisions regarding specific offender characteristics:

First, the Act directs the Commission to ensure that the guidelines and policy statements ‘are entirely neutral’ as to five characteristics – race, sex, national origin, creed, and socioeconomic status. See 28 U.S.C. § 994(d).

Second, the Act directs the Commission to consider whether eleven specific offender characteristics, ‘among others’, have any relevance to the nature, extent, place of service, or other aspects of an appropriate sentence, and to take them into account in the guidelines and policy statements only to the extent that they do have relevance. See 28 U.S.C. § 994(d).

Third, the Act directs the Commission to ensure that the guidelines and policy statements, in recommending a term of imprisonment or length of a term of imprisonment, reflect the ‘general inappropriateness’ of considering five of those characteristics – education; vocational skills; employment record; family ties and responsibilities; and community ties. See 28 U.S.C. § 994(e).

Fourth, the Act also directs the sentencing court, in determining the particular sentence to be imposed, to consider, among other factors, ‘the history and characteristics of the defendant’. See 18 U.S.C. § 3553(a)(1).

Specific offender characteristics are taken into account in the guidelines in several ways. One important specific offender characteristic is the defendant’s criminal history, see 28 U.S.C. § 994(d)(10), which is taken into account in the guidelines in Chapter Four (Criminal History and Criminal Livelihood). See §5H1.8 (Criminal History). Another specific offender characteristic in the guidelines is the degree of dependence upon criminal history for a livelihood, see 28 U.S.C. § 994(d)(11), which is taken into account in Chapter Four, Part B (Career Offenders and Criminal Livelihood). See §5H1.9 (Dependence upon Criminal Activity for a Livelihood). Other specific offender characteristics are accounted for elsewhere in this manual. See, e.g., §§2C1.1(a)(1) and 2C1.2(a)(1) (providing alternative base offense levels if the defendant was a public official); 3B1.3 (Abuse of Position of Trust or Use of Special Skill); and 3E1.1 (Acceptance of Responsibility).

The Supreme Court has emphasized that the advisory guideline system should ‘continue to move sentencing in Congress’ preferred direction, helping to avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary.’ See United States v. Booker, 543 U.S. 220, 264-65 (2005). Although the court must consider ‘the history and characteristics of the defendant’ among other factors, see 18 U.S.C. § 3553(a), in order to avoid unwarranted sentencing disparities the court should not give them excessive weight. Generally, the most appropriate use of specific offender characteristics is to consider them not as a reason for a sentence outside the applicable guideline range but for other reasons, such as in determining the sentence within the applicable guideline range, the type of sentence (e.g., probation or imprisonment) within the sentencing options available for the applicable Zone on the Sentencing Table, and various other aspects of an appropriate sentence. To avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct, see 18 U.S.C. § 3553(a)(6), 28 U.S.C. § 991(b)(1)(B), the guideline range, which reflects the defendant’s criminal conduct and the defendant’s criminal history, should continue to be ‘the starting point and the initial benchmark.’ Gall v. United States, 552 U.S. 38, 49 (2007).

Accordingly, the purpose of this Part is to provide sentencing courts with a framework for addressing specific offender characteristics in a reasonably consistent manner. Using such a framework in a uniform manner will help ‘secure nationwide consistency,’ see Gall v. United States, 552 U.S. 38, 49 (2007), ‘avoid unwarranted sentencing disparities,’ see 28 U.S.C. § 991(b)(1)(B), 18 U.S.C. § 3553(a)(6), ‘provide certainty and fairness,’ see 28 U.S.C. § 991(b)(1)(B), and ‘promote respect for the law,’ see 18 U.S.C. § 3553(a)(2)(A).

This Part allocates specific offender characteristics into three general categories.

In the first category are specific offender characteristics the consideration of which Congress has prohibited (e.g., §5H1.10 (Race, Sex, National Origin, Creed, Religion, and Socio-Economic Status)) or that the Commission has determined should be prohibited.

In the second category are specific offender characteristics that Congress directed the Commission to take into account in the guidelines only to the extent that they have relevance to sentencing. See 28 U.S.C. § 994(d). For some of these, the policy statements indicate that these characteristics may be relevant in determining whether a sentence outside the applicable guideline range is warranted (e.g., age; mental and emotional condition; physical condition). These characteristics may warrant a sentence outside the applicable guideline range if the characteristic, individually or in combination with other such characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines. These specific offender characteristics also may be considered for other reasons, such as in determining the sentence within the applicable guideline range, the type of sentence (e.g., probation or imprisonment) within the sentencing options available for the applicable Zone on the Sentencing Table, and various other aspects of an appropriate sentence.";

in the second paragraph by striking "The Commission has determined that certain circumstances" and inserting the following:

"In the third category are specific offender characteristics that Congress directed the Commission to ensure are reflected in the guidelines and policy statements as generally inappropriate in recommending a term of imprisonment or length of a term of imprisonment. See 28 U.S.C. § 994(e). The policy statements indicate that these characteristics";

by striking "or to the determination of" and inserting ", the type of sentence (e.g., probation or imprisonment) within the sentencing options available for the applicable Zone on the Sentencing Table, or"; by striking "incidents" and inserting "aspects";

and by striking the last paragraph as follows:

" In addition, 28 U.S.C. § 994(e) requires the Commission to assure that its guidelines and policy statements reflect the general inappropriateness of considering the defendant’s education, vocational skills, employment record, and family ties and responsibilities in determining whether a term of imprisonment should be imposed or the length of a term of imprisonment.",

and inserting the following:

" As with the other provisions in this manual, these policy statements ‘are evolutionary in nature’. See Chapter One, Part A, Subpart 2 (Continuing Evolution and Role of the Guidelines); 28 U.S.C. § 994(o). The Commission expects, and the Sentencing Reform Act contemplates, that continuing research, experience, and analysis will result in modifications and revisions.

The nature, extent, and significance of specific offender characteristics can involve a range of considerations. The Commission will continue to provide information to the courts on the relevance of specific offender characteristics in sentencing, as the Sentencing Reform Act contemplates. See, e.g., 28 U.S.C. § 995(a)(12)(A) (the Commission serves as a ‘clearinghouse and information center’ on federal sentencing). Among other things, this may include information on the use of specific offender characteristics, individually and in combination, in determining the sentence to be imposed (including, where available, information on rates of use, criteria for use, and reasons for use); the relationship, if any, between specific offender characteristics and (A) the ‘forbidden factors’ specified in 28 U.S.C. § 994(d) and (B) the ‘discouraged factors’ specified in 28 U.S.C. § 994(e); and the relationship, if any, between specific offender characteristics and the statutory purposes of sentencing.".

Section 5H1.1 is amended by striking the first sentence as follows:

"Age (including youth) is not ordinarily relevant in determining whether a departure is warranted.",

and inserting the following:

"Age (including youth) may be relevant in determining whether a departure is warranted, if considerations based on age, individually or in combination with other offender characteristics, are present to an unusual degree and distinguish the case from the typical cases covered by the guidelines.".

Section 5H1.3 is amended by striking the first paragraph as follows:

"Mental and emotional conditions are not ordinarily relevant in determining whether a departure is warranted, except as provided in Chapter Five, Part K, Subpart 2 (Other Grounds for Departure).",

and inserting the following:

"Mental and emotional conditions may be relevant in determining whether a departure is warranted, if such conditions, individually or in combination with other offender characteristics, are present to an unusual degree and distinguish the case from the typical cases covered by the guidelines. See also Chapter Five, Part K, Subpart 2 (Other Grounds for Departure).

In certain cases a downward departure may be appropriate to accomplish a specific treatment purpose. See §5C1.1, Application Note 6.".

Section 5H1.4 is amended in the first paragraph by striking the first sentence as follows:

"Physical condition or appearance, including physique, is not ordinarily relevant in determining whether a departure may be warranted.",

and inserting the following:

"Physical condition or appearance, including physique, may be relevant in determining whether a departure is warranted, if the condition or appearance, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines.";

in the second sentence by striking "However, an" and inserting "An"; in the second paragraph by inserting "ordinarily" after "or abuse"; in the last sentence by striking "supervisory body" and inserting "probation office"; by inserting as the third paragraph the following:

"In certain cases a downward departure may be appropriate to accomplish a specific treatment purpose. See §5C1.1, Application Note 6."; and

in the fourth paragraph, as amended by this amendment, by striking "Similarly, where" and inserting "In a case in which".

Section 5H1.11 is amended by inserting as the first paragraph the following:

"Military service may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines."; and

in the second paragraph, as amended by this amendment, by striking "Military, civic" and inserting "Civic".

Section 5K2.0(d)(1) is amended by striking "third and last sentences" and inserting "last sentence".

Reason for Amendment: This multi-part amendment revises the introductory commentary to Chapter Five, Part H (Specific Offender Characteristics), amends the policy statements relating to age, mental and emotional conditions, physical condition, and military service, and makes conforming changes to §5K2.0 (Grounds for Departure). The amendment is a result of a review of the departure provisions in the Guidelines Manual begun by the Commission this year. See 74 Fed. Reg. 46478, 46479 (September 9, 2009). The Commission undertook this review, in part, in response to an observed decrease in reliance on departure provisions in the Guidelines Manual in favor of an increased use of variances.

First, the amendment revises the introductory commentary to Chapter Five, Part H. As amended, the introductory commentary explains that the purpose of Part H is to provide sentencing courts with a framework for addressing specific offender characteristics in a reasonably consistent manner. Using such a framework in a uniform manner will help "secure nationwide consistency," Gall v. United States, 552 U.S. 38, 49 (2007), "avoid unwarranted sentencing disparities," 28 U.S.C. § 991(b)(1)(B), and "promote respect for the law," 18 U.S.C. § 3553(a)(2)(A).

Accordingly, the amended introductory commentary outlines three categories of specific offender characteristics described in the Sentencing Reform Act and the statutory and guideline standards that apply to consideration of each category. Courts must consider "the history and characteristics of the defendant" among other factors. See 18 U.S.C. § 3553(a). However, in order to avoid unwarranted sentencing disparities, see 18 U.S.C. § 3553(a)(6), 28 U.S.C. § 991(b)(1)(B), courts should not give specific offender characteristics excessive weight. The guideline range, which reflects the defendant’s criminal conduct and the defendant’s criminal history, should continue to be "the starting point and the initial benchmark." Gall, supra, at 49.

The amended introductory commentary also states that the Commission will continue to provide information to the courts on the relevance of specific offender characteristics in sentencing, as contemplated by the Sentencing Reform Act. See, e.g., 28 U.S.C. § 995(a)(12)(A). The Commission expects that providing such information on an ongoing basis will promote nationwide consistency in the consideration of specific offender characteristics by courts and help avoid unwarranted sentencing disparities.

Second, the amendment amends several policy statements that cover specific offender characteristics addressed in 28 U.S.C. § 994(d): §§5H1.1 (Age), 5H1.3 (Mental and Emotional Conditions), and 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction). As amended, these policy statements generally provide that age; mental and emotional conditions; and physical condition or appearance, including physique, "may be relevant in determining whether a departure is warranted, if [the offender characteristic], individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines." The Commission adopted this departure standard after reviewing recent federal sentencing data, trial and appellate court case law, scholarly literature, public comment and testimony, and feedback in various forms from federal judges.

The amendment also amends §§5H1.3 and 5H1.4 to provide that in certain cases described in Application Note 6 to §5C1.1 (Imposition of a Term of Imprisonment) a departure may be appropriate.

Third, the amendment amends §5H1.11 (Military, Civic, Charitable, or Public Service; Employment-Related Contributions; Record of Prior Good Works) to draw a distinction between military service and the other circumstances covered by that policy statement. As amended, the policy statement provides that military service "may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines". The Commission determined that applying this departure standard to consideration of military service is appropriate because such service has been recognized as a traditional mitigating factor at sentencing. See, e.g., Porter v. McCollum, 130 S. Ct. 447, 455 (2009) ("Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines . . . .").

Finally, the amendment makes conforming changes to §5K2.0 (Grounds for Departure).

Effective Date: The effective date of this amendment is November 1, 2010.