AMENDMENT 822

Amendment: The Commentary to §2L1.2 captioned “Application Notes” is amended in Note 2, in the paragraph that begins “ ‘Crime of violence’ means”, by inserting after “territorial jurisdiction of the United States.” the following: “ ‘Robbery’ is the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining. The phrase ‘actual or threatened force’ refers to force that is sufficient to overcome a victim’s resistance.”.

Section 4B1.2(a) is amended—

by inserting at the beginning the following new heading “Crime of Violence.—”;

and in paragraph (1) by striking “another,” and inserting “another;”.

Section 4B1.2(b) is amended by striking the following:

“The term ‘controlled substance offense’ means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.”,

and inserting the following:

“Controlled Substance Offense.—The term ‘controlled substance offense’ means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense; or

(2) is an offense described in 46 U.S.C. § 70503(a) or § 70506(b).”.

Section 4B1.2(c) is amended by inserting at the beginning the following new heading “Two Prior Felony Convictions.—”.

Section 4B1.2 is amended by inserting at the end the following two new subsections (d) and (e):

“(d) Inchoate Offenses Included.—The terms ‘crime of violence’ and ‘controlled substance offense’ include the offenses of aiding and abetting, attempting to commit, or conspiring to commit any such offense.

(e) Additional Definitions.—

(1) Forcible Sex Offense.—‘Forcible sex offense’ includes 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 offenses of sexual abuse of a minor and statutory rape are included only if the sexual abuse of a minor or statutory rape was (A) an offense described in 18 U.S.C. § 2241(c) or (B) an offense under state law that would have been an offense under section 2241(c) if the offense had occurred within the special maritime and territorial jurisdiction of the United States.

(2) Extortion.—‘Extortion’ is obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.

(3) Robbery.—‘Robbery’ is the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining. The phrase ‘actual or threatened force’ refers to force that is sufficient to overcome a victim’s resistance.

(4) Prior Felony Conviction.—‘Prior felony conviction’ means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed. A conviction for an offense committed at age eighteen or older is an adult conviction. A conviction for an offense committed prior to age eighteen is an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted (e.g., a federal conviction for an offense committed prior to the defendant’s eighteenth birthday is an adult conviction if the defendant was expressly proceeded against as an adult).”.

The Commentary to §4B1.2 captioned “Application Notes” is amended in Note 1—

in the heading by striking “Definitions.—” and inserting “Further Considerations Regarding ‘Crime of Violence’ and ‘Controlled Substance Offense’.—”;

by striking the first three paragraphs as follows:

“ ‘Crime of violence’ and ‘controlled substance offense’ include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.

‘Forcible sex offense’ includes 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 offenses of sexual abuse of a minor and statutory rape are included only if the sexual abuse of a minor or statutory rape was (A) an offense described in 18 U.S.C. § 2241(c) or (B) an offense under state law that would have been an offense under section 2241(c) if the offense had occurred within the special maritime and territorial jurisdiction of the United States.

‘Extortion’ is obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.”;

and by striking the last paragraph as follows:

“ ‘Prior felony conviction’ means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed. A conviction for an offense committed at age eighteen or older is an adult conviction. A conviction for an offense committed prior to age eighteen is an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted (e.g., a federal conviction for an offense committed prior to the defendant’s eighteenth birthday is an adult conviction if the defendant was expressly proceeded against as an adult).”.

Reason for Amendment: This amendment is a result of the Commission’s work on §4B1.2 (Definitions of Terms Used in Section 4B1.1) regarding several application issues that have arisen in the context of the career offender guideline. As part of this study, the Commission considered varying case law interpreting certain guideline definitions and commentary to the guideline. Informed by the case law, public comment and relevant sentencing data, this amendment specifically addresses application issues regarding the meaning of “robbery” and “extortion” and the treatment of inchoate offenses. The amendment also makes necessary changes to further implement the congressional directive at 28 U.S.C. § 994(h).

The amendment makes several changes to address a circuit conflict regarding the authoritative weight afforded to certain commentary to §4B1.2. The commentary to §4B1.2 prior to the amendment provided that the definitions of “crime of violence” and “controlled substance offense” include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses. Although most circuits had previously held that this commentary was authoritative under Stinson v. United States, 508 U.S. 36 (1993), several courts have now concluded that the guideline definition of “controlled substance offense” does not include inchoate offenses because such offenses are not expressly included in the guideline text. See United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc); United States v. Campbell, 22 F.4th 438 (4th Cir. 2022); United States v. Nasir, 17 F.4th 459 (3d Cir. 2021) (en banc); United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc); United States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018). Several courts held that the Commission exceeded its authority under Stinson when it attempted to incorporate inchoate offenses into §4B1.2(b)’s definition through the commentary, finding that the commentary can only interpret or explain the guideline, it cannot expand its scope by adding qualifying offenses. See, e.g., Havis, 927 F.3d at 385–87. More recently, courts have relied on Kisor v. Wilkie, 139 S. Ct. 2400 (2022), to hold that guideline commentary should not be afforded deference unless the guideline text is genuinely ambiguous. See, e.g., Dupree, 57 F.4th at 1275. Applying the Kisor holding to the guidelines, courts have concluded that the plain language definition of “controlled substance offense” in §4B1.2 unambiguously excludes inchoate offenses. Similarly, courts have held that “crime of violence” excludes conspiracies because the §4B1.2 commentary does not warrant Kisor deference. See, e.g., United States v. Abreu, 32 F.4th 271, 277–78 (3d Cir. 2022).

The amendment addresses this circuit conflict by moving, without change, the commentary including certain inchoate and accessory offenses in the definitions of “crime of violence” and “controlled substance offense” to the text of the guideline. While not the subject of the circuit conflict, the amendment also moves the definitions of enumerated offenses (i.e., “forcible sex offense” and “extortion”) and “prior felony conviction” from the commentary to a new subsection (e) in the guideline to avoid similar challenges to their applicability.

The amendment next addresses a concern that Hobbs Act robbery offenses no longer qualify as “crimes of violence” under §4B1.2. In 2016, the Commission amended §4B1.2 to, among other things, delete the “residual clause” and revise the “enumerated clause” by moving enumerated offenses that were previously listed in the commentary to the guideline itself. Although the guideline generally relies on existing case law for purposes of defining most enumerated offenses, the amendment added to the Commentary to §4B1.2 definitions for two of the enumerated offenses: “forcible sex offense” and “extortion.” Consistent with the Commission’s goal of focusing the career offender and related enhancements on the most dangerous offenders, the amendment narrowed the generic definition of extortion by limiting it to offenses having an element of force or an element of fear or threat “of physical injury,” as opposed to non-violent threats such as injury to reputation. As such, extortion is defined as “obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.”

After the 2016 amendment, every Court of Appeals addressing the issue under the guidelines has held that Hobbs Act robbery is not a “crime of violence” under §4B1.2, reasoning that neither generic robbery nor the guidelines definition of extortion encompass threats against property while the Hobbs Act defines “robbery” as, among other things, “the unlawful taking or obtaining of personal property . . . by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property . . . . ” See 18 U.S.C. § 1951(b)(1) (emphasis added); United States v. Chappelle, 41 F.4th 102 (2d Cir. 2022); United States v. Scott, 14 F.4th 190 (3d Cir. 2021); United States v. Prigan, 8 F.4th 1115 (9th Cir. 2021); United States v. Green, 996 F.3d 176 (4th Cir. 2021); Bridges v. United States, 991 F.3d 793 (7th Cir. 2021); United States v. Eason, 953 F.3d 1184 (11th Cir. 2020); United States v. Camp, 903 F.3d 594 (6th Cir. 2018); United States v. O’Connor, 874 F.3d 1147 (10th Cir. 2017).

The amendment amends §4B1.2 to add to the new subsection (e) a definition of “robbery” that mirrors the “robbery” definition at 18 U.S.C. § 1951(b)(1) and makes a conforming change to §2L1.2 (Illegal Reentry), which also includes robbery as an enumerated offense. The Commission views the recent decisions holding that Hobbs Act robbery is not a crime of violence under the guidelines as an unintended consequence of the 2016 amendment to the career offender guideline meant to remove threats to reputation. In addition, the Commission conducted an analysis of recent cases and found that the Hobbs Act robberies overwhelmingly involved violence.

The amendment clarifies that “actual or threatened force” for purposes of the new “robbery” definition is “force sufficient to overcome a victim’s resistance.” The Commission concludes that such definition, relying on the Supreme Court’s decision in Stokeling v. United States, 139 S. Ct. 544 (2019), would eliminate potential litigation over the meaning of actual or threatened force in this context and is consistent with the level of force necessary for a robbery under the force clause.

Finally, the amendment revises the definition of “controlled substance offense” in §4B1.2(b) to include “an offense described in 46 U.S.C. § 70503(a) or § 70506(b).” The directive at 28 U.S.C. § 994(h) instructs the Commission to assure that “the guidelines specify a term of imprisonment at or near the maximum term authorized” for offenders who are 18 years or older and have been convicted of a felony that is, and have previously been convicted of two or more felonies that are, among other things, “an offense described in . . . chapter 705 of title 46.” See 28 U.S.C. § 994(h). In 2016, Congress enacted the Coast Guard Authorization Act of 2015, Pub. L. 114–120 (2016), which amended Chapter 705 of Title 46 by adding two new offenses to section 70503(a), in subparagraphs (2) and (3). Following this statutory change, these two new offenses are not covered by the pre-amendment definition of “controlled substance offense” in §4B1.2 as required by the directive.

Effective Date: The effective date of this amendment is November 1, 2023.