AMENDMENT 817
Amendment: Section 2D1.1(a) is amended—
in paragraph (1) by striking the following:
“43, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(A), (b)(1)(B), or (b)(1)(C), or 21 U.S.C. § 960(b)(1), (b)(2), or (b)(3), and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance and that the defendant committed the offense after one or more prior convictions for a similar offense; or”,
and inserting the following:
“43, if—
(A) the defendant is convicted under 21 U.S.C. § 841(b)(1)(A) or (b)(1)(B), or 21 U.S.C. § 960(b)(1) or (b)(2), and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance and that the defendant committed the offense after one or more prior convictions for a serious drug felony or serious violent felony; or
(B) the defendant is convicted under 21 U.S.C. § 841(b)(1)(C) or 21 U.S.C. § 960(b)(3) and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance and that the defendant committed the offense after one or more prior convictions for a felony drug offense; or”;
and in paragraph (3) by striking “similar offense” and inserting “felony drug offense”.
Section 2D1.1(b)(18) is amended by striking “subdivisions” and inserting “paragraphs”.
The Commentary to §2D1.1 captioned “Application Notes” is amended—
by striking Note 2 as follows:
“2. ‘Plant’.—For purposes of the guidelines, a ‘plant’ is an organism having leaves and a readily observable root formation (e.g., a marihuana cutting having roots, a rootball, or root hairs is a marihuana plant).”;
by redesignating Note 1 as Note 2;
by inserting before Note 2 (as so redesignated) the following new Note 1:
“1. Definitions.—
For purposes of the guidelines, a ‘plant’ is an organism having leaves and a readily observable root formation (e.g., a marihuana cutting having roots, a rootball, or root hairs is a marihuana plant).
For purposes of subsection (a), ‘serious drug felony,’ ‘serious violent felony,’ and ‘felony drug offense’ have the meaning given those terms in 21 U.S.C. § 802.”;
and in Note 21 by striking “a minimum offense level of level 17” and inserting “that the applicable guideline range shall not be less than 24 to 30 months of imprisonment”.
Section 2D1.11(b)(6) is amended by striking “subdivisions” and inserting “paragraphs”.
The Commentary to §2D1.11 captioned “Application Notes” is amended in Note 7 by striking “a minimum offense level of level 17” and inserting “an applicable guideline range of not less than 24 to 30 months of imprisonment”.
Section 4A1.3(b)(3)(B) is amended—
in the heading by striking “to Category I”;
by striking “whose criminal history category is Category I after receipt of” and inserting “who receives”;
by striking “criterion” and inserting “criminal history requirement”;
and by striking “if, before receipt of the downward departure, the defendant had more than one criminal history point under §4A1.1 (Criminal History Category)” and inserting “if the defendant did not otherwise meet such requirement before receipt of the downward departure”.
Section 5C1.2(a) is amended—
by inserting after “§ 963,” the following: “or 46 U.S.C. § 70503 or § 70506,”;
by striking “set forth below” and inserting “as follows”;
and by striking paragraph (1) as follows:
“(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines before application of subsection (b) of §4A1.3 (Departures Based on Inadequacy of Criminal History Category);”,
and inserting the following new paragraph (1):
“(1) the defendant does not have—
(A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;
(B) a prior 3-point offense, as determined under the sentencing guidelines; and
(C) a prior 2-point violent offense, as determined under the sentencing guidelines;”.
Section 5C1.2(b) is amended by striking “the offense level applicable from Chapters Two (Offense Conduct) and Three (Adjustments) shall not be less than 17” and inserting “the applicable guideline range shall not be less than 24 to 30 months of imprisonment”.
The Commentary to §5C1.2 captioned “Application Notes” is amended—
by striking Notes 1, 2, and 3 as follows:
“1. ‘More than 1 criminal history point, as determined under the sentencing guidelines,’ as used in subsection (a)(1), means more than one criminal history point as determined under §4A1.1 (Criminal History Category) before application of subsection (b) of §4A1.3 (Departures Based on Inadequacy of Criminal History Category).
2. ‘Dangerous weapon’ and ‘firearm,’ as used in subsection (a)(2), and ‘serious bodily injury,’ as used in subsection (a)(3), are defined in the Commentary to §1B1.1 (Application Instructions).
3. ‘Offense,’ as used in subsection (a)(2)–(4), and ‘offense or offenses that were part of the same course of conduct or of a common scheme or plan,’ as used in subsection (a)(5), mean the offense of conviction and all relevant conduct.”;
by inserting the following new Note 1:
“1. Definitions.—
(A) The term ‘violent offense’ means a ‘crime of violence,’ as defined in 18 U.S.C. § 16, that is punishable by imprisonment.
(B) ‘Dangerous weapon’ and ‘firearm,’ as used in subsection (a)(2), and ‘serious bodily injury,’ as used in subsection (a)(3), are defined in the Commentary to §1B1.1 (Application Instructions).
(C) ‘Offense,’ as used in subsection (a)(2)–(4), and ‘offense or offenses that were part of the same course of conduct or of a common scheme or plan,’ as used in subsection (a)(5), mean the offense of conviction and all relevant conduct.”;
by redesignating Note 4 as Note 2;
in Note 2 (as so redesignated) by inserting at the beginning the following new heading: “Application of subsection (a)(2).—”;
by striking Notes 5, 6, and 7 as follows:
“5. ‘Organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines,’ as used in subsection (a)(4), means a defendant who receives an adjustment for an aggravating role under §3B1.1 (Aggravating Role).
6. ‘Engaged in a continuing criminal enterprise,’ as used in subsection (a)(4), is defined in 21 U.S.C. § 848(c). As a practical matter, it should not be necessary to apply this prong of subsection (a)(4) because (i) this section does not apply to a conviction under 21 U.S.C. § 848, and (ii) any defendant who ‘engaged in a continuing criminal enterprise’ but is convicted of an offense to which this section applies will be an ‘organizer, leader, manager, or supervisor of others in the offense.’
7. Information disclosed by the defendant with respect to subsection (a)(5) may be considered in determining the applicable guideline range, except where the use of such information is restricted under the provisions of §1B1.8 (Use of Certain Information). That is, subsection (a)(5) does not provide an independent basis for restricting the use of information disclosed by the defendant.”;
by inserting the following new Notes 3 and 4:
“3. Application of Subsection (a)(4).—
(A) ‘Organizer, leader, manager, or supervisor of others in the offense’.—The first prong of subsection (a)(4) requires that the defendant was not subject to an adjustment for an aggravating role under §3B1.1 (Aggravating Role).
(B) ‘Engaged in a continuing criminal enterprise’.—‘Engaged in a continuing criminal enterprise,’ as used in subsection (a)(4), is defined in 21 U.S.C. § 848(c). As a practical matter, it should not be necessary to apply this prong of subsection (a)(4) because (i) this section does not apply to a conviction under 21 U.S.C. § 848, and (ii) any defendant who ‘engaged in a continuing criminal enterprise’ but is convicted of an offense to which this section applies will be an ‘organizer, leader, manager, or supervisor of others in the offense.’
4. Use of Information Disclosed under Subsection (a).—Information disclosed by a defendant under subsection (a) may not be used to enhance the sentence of the defendant unless the information relates to a violent offense, as defined in Application Note 1(A).”;
by redesignating Notes 8 and 9 as Notes 5 and 6, respectively;
in Note 5 (as so redesignated) by inserting at the beginning the following new heading: “Government’s Opportunity to Make Recommendation.—”;
and in Note 6 (as so redesignated) by inserting at the beginning the following new heading: “Exemption from Otherwise Applicable Statutory Minimum Sentences.—”.
The Commentary to §5C1.2 captioned “Background” is amended by inserting after “Violent Crime Control and Law Enforcement Act of 1994” the following: “and subsequently amended”.
Reason for Amendment: This two-part amendment revises §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases) and subsections (a)(1) and (a)(3) of §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) in response to the First Step Act of 2018, Pub. L. 115–391 (Dec. 21, 2018) (“First Step Act”). The First Step Act amended the eligibility criteria of the “safety valve” provision at 18 U.S.C. § 3553(f) and the enhanced penalty provisions for certain drug trafficking defendants at 21 U.S.C. §§ 841(b) and 960(b). The amendment primarily revises §5C1.2 to conform it to the statutory safety valve, as amended by the First Step Act. In addition, the amendment revises subsections (a)(1) and (a)(3) of §2D1.1 to make the guideline’s reference to the type of prior offenses that trigger enhanced mandatory minimum penalties consistent with the amended statutory provisions.
First, the amendment makes three changes to §5C1.2 and its corresponding commentary to reflect the statutory changes to section 3553(f) made by the First Step Act. The First Step Act expanded the safety valve provision at section 3553(f) by extending its applicability to defendants convicted of maritime offenses (46 U.S.C. §§ 70503 and 70506) and broadening the criminal history eligibility criteria to include defendants who do not have: (1) “more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines”; (2) a “prior 3-point offense, as determined under the sentencing guidelines”; and (3) a “prior 2-point violent offense, as determined under the sentencing guidelines.” The amendment revises §5C1.2(a) to include maritime offenses and the expanded statutory criminal history criteria. Next, it revises Application Note 1 to incorporate the statutory definition for the term “violent offense.” Finally, it revises Application Note 7 to reflect the new statutory limitation that information disclosed by a defendant pursuant to 18 U.S.C. § 3553(f) “may not be used to enhance the defendant’s sentence unless the information relates to a violent offense.”
Second, the amendment revises §5C1.2(b) to account for the expanded class of defendants who qualify for safety valve relief. Section 5C1.2(b) implemented Congress’s directive requiring that the guideline minimum be at least 24 months for defendants whose statutorily required minimum sentence was at least five years by providing a minimum offense level of 17 for such offenders. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103–222, § 80001(b), 108 Stat. 1796, 1985 (1994) (“In the case of a defendant for whom the statutorily required minimum sentence is 5 years, such guidelines and amendments to guidelines . . . shall call for a guideline range in which the lowest term of imprisonment is at least 24 months.”); see also USSG App. C, amend. 624 (effective Nov. 1, 2001) (adding §5C1.2(b) “in order to comply more strictly with the directive”). Before the First Step Act, only defendants in Criminal History Category (CHC) I (with no more than one criminal history point) could qualify for safety valve relief, and a base offense level of 17 therefore correlated with a guideline range of 24 to 30 months for all safety-valve-eligible defendants. After the First Step Act, a safety-valve-eligible defendant can be in any CHC, and an offense level of 17 correlates with the following guideline ranges at each category: I (24–30 months); II (27–33); III (30–37); IV (37–46); V (46–57); and VI (51–63). Because Congress’s directive is tied to the existence of a 5-year mandatory minimum penalty and not to the defendant’s CHC, the amendment replaces the offense-level floor with a guideline-range floor. The Commission determined that the proportionality concerns raised in public comment and testimony are addressed by the operation of the Sentencing Table, irrespective of the offense-level floor.
Third, the amendment makes conforming changes to §4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)), which references the number of criminal history points permitted under §5C1.2(a)(1).
Fourth, the amendment makes only non-substantive changes to §2D1.1(b)(18) and §2D1.11(b)(6), the 2-level reductions that are tethered to the eligibility criteria of paragraphs (1)–(5) of §5C1.2(a). The 2-level reductions in §2D1.1 and §2D1.11 apply to any defendant who meets the revised criteria of §5C1.2.
Finally, the amendment revises subsections (a)(1) and (a)(3) of §2D1.1 to replace the term “similar offense” with the appropriate terms set forth in the relevant statutory provisions, as amended by the First Step Act.
The penalty provisions at 21 U.S.C. §§ 841(b) and 960(b) provide enhanced mandatory minimum penalties for defendants (1) whose instant offense resulted in death or serious bodily injury or (2) who have prior convictions for certain specified offenses. Penalties are further increased if death or serious bodily injury occurred as a result of the instant offense and the defendant has a qualifying prior conviction. Prior to the First Step Act, all of the recidivist penalty provisions within sections 841(b) and 960(b) provided for an enhanced mandatory minimum penalty if a defendant had one or more convictions for a prior “felony drug offense,” as defined in 21 U.S.C. § 802(44). The First Step Act both narrowed and expanded the type of prior offenses that trigger enhanced mandatory minimum penalties under 21 U.S.C. §§ 841(b)(1)(A), 841(b)(1)(B), 960(b)(1), and 960(b)(2) by replacing the term “felony drug offense” with “serious drug felony,” as defined in 21 U.S.C. § 802(57), and adding “serious violent felony” offenses, as defined in 21 U.S.C. § 802(58). The First Step Act did not amend 21 U.S.C. §§ 841(b)(1)(C), 841(b)(1)(E), 960(b)(3), or 960(b)(5), which still provide for enhanced mandatory minimum penalties if a defendant was convicted of a prior “felony drug offense.”
The enhanced statutory penalty structure is accounted for through heightened alternative base offense levels (BOL) at §2D1.1(a)(1)–(a)(4). Prior to the amendment, §2D1.1(a)(1) provided for a BOL of 43 “if the defendant is convicted under [any of six enumerated subsections], and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance and that the defendant committed the offense after one or more prior convictions for a similar offense.” Subsection 2D1.1(a)(3) is identical to §2D1.1(a)(1), except that it provides a BOL of 30 and applies if the defendant is convicted of an offense involving a Schedule III controlled substance under 21 U.S.C. § 841(b)(1)(E) or 21 U.S.C. § 960(b)(5).
The First Step Act amended four of the six penalty provisions referenced in §2D1.1(a)(1) and, for those amended provisions, the term “similar offense” is over-inclusive, because it includes drug offenses that do not meet the definition of “serious drug felony,” and under-inclusive, because it fails to account for a prior “serious violent felony.” The amendment divides §2D1.1(a)(1) into two subparagraphs, (A) and (B). Subparagraph (A), which references the four statutory provisions amended by the First Step Act, replaces the term “similar offense” with “serious drug felony or serious violent felony.” Subparagraph (B), which references the two provisions that were not amended, replaces the term “similar offense” with “felony drug offense.” The amendment also amends §2D1.1(a)(3), by replacing the term “similar offense” with “felony drug offense,” for consistency with the terminology used in §2D1.1(a)(1).
Effective Date: The effective date of this amendment is November 1, 2023.