AMENDMENT 823

Amendment: Section 3D1.2(d) is amended by striking “§§2G1.1, 2G2.1;” and inserting “§§2G1.1, 2G1.3, 2G2.1;”.

The Commentary to §5F1.7 captioned “Background” is amended—

by striking “six months” and inserting “6 months”;

by striking “as the Bureau deems appropriate. 18 U.S.C. § 4046.’ ” and inserting “as the Bureau deems appropriate.’ 18 U.S.C. § 4046.”;

and by striking the final paragraph as follows:

“     The Bureau of Prisons has issued an operations memorandum (174-90 (5390), November 20, 1990) that outlines eligibility criteria and procedures for the implementation of this program (which the Bureau of Prisons has titled ‘intensive confinement program’). Under these procedures, the Bureau will not place a defendant in an intensive confinement program unless the sentencing court has approved, either at the time of sentencing or upon consultation after the Bureau has determined that the defendant is otherwise eligible. In return for the successful completion of the ‘intensive confinement’ portion of the program, the defendant is eligible to serve the remainder of his term of imprisonment in a graduated release program comprised of community corrections center and home confinement phases.”,

and inserting the following:

“     In 1990, the Bureau of Prisons issued an operations memorandum (174-90 (5390), November 20, 1990) that outlined eligibility criteria and procedures for the implementation of a shock incarceration program (which the Bureau of Prisons titled the ‘intensive confinement program’). In 2008, however, the Bureau of Prisons terminated the program and removed the rules governing its operation. See 73 FR 39863 (July 11, 2008).”.

Reason for Amendment: This two-part amendment responds to miscellaneous guideline application issues.

First, the amendment revises subsection (d) of §3D1.2 (Grouping of Closely Related Counts) to provide that multiple counts involving more than one victim sentenced under §2G1.3 (Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Sex Trafficking of Children; Use of Interstate Facilities to Transport Information about a Minor) are explicitly excluded from grouping under §3D1.2(d). Subsection 3D1.2(d) provides that certain guidelines are excluded from the operation of the grouping rules in Chapter Three, Part D (Multiple Counts). Among the guidelines specifically excluded under §3D1.2(d) is §2G1.1 (Promoting a Commercial Sex Act or Prohibited Sexual Conduct with an Individual Other than a Minor). When §2G1.3 was promulgated in 2004, some offenses that were originally referenced to §2G1.1 were moved to the new §2G1.3, but §2G1.3 was not added to the list of excluded guidelines at §3D1.2(d). See USSG App. C, amend. 664 (effective date: Nov. 1, 2004). The amendment corrects that oversight and treats §2G1.3 similarly to §2G1.1.

Second, the amendment updates the Commentary to §5F1.7 (Shock Incarceration Program (Policy Statement)) to reflect that the Bureau of Prisons (BOP) no longer operates a shock incarceration program. The Commentary to §5F1.7 describes the authority of the BOP to operate a shock incarceration program and the procedures that the BOP established in 1990 regarding operation of such a program. However, the BOP terminated its shock incarceration program and removed the rules governing its operation in 2008. The amendment updates the Commentary to §5F1.7 to reflect that shock incarceration is no longer a potential sentencing option, foreclosing any potential confusion on its current availability.

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