AMENDMENT 624

Amendment: Section 2D1.1(b)(6), as redesignated by amendment 620, is amended by inserting "subsection (a) of" after "(1)-(5) of"; and by striking "and the offense level determined above is level 26 or greater".

The Commentary to §2D1.1 captioned "Application Notes", as amended by amendments 620, 621, 622, and 623, is further amended by striking Note 14 as follows:

"14. Where (A) the amount of the controlled substance for which the defendant is accountable under §1B1.3 (Relevant Conduct) results in a base offense level greater than 36, (B) the court finds that this offense level overrepresents the defendant’s culpability in the criminal activity, and (C) the defendant qualifies for a mitigating role adjustment under §3B1.2 (Mitigating Role), a downward departure may be warranted. The court may depart to a sentence no lower than the guideline range that would have resulted if the defendant’s Chapter Two offense level had been offense level 36. Provided, that a defendant is not eligible for a downward departure under this provision if the defendant:

(a) has one or more prior felony convictions for a crime of violence or a controlled substance offense as defined in §4B1.2 (Definitions of Terms Used in Section 4B1.1);

(b) qualifies for an adjustment under §3B1.3 (Abuse of Position of Trust or Use of Special Skill);

(c) possessed or induced another participant to use or possess a firearm in the offense;

(d) had decision-making authority;

(e) owned the controlled substance or financed any part of the offense; or

(f) sold the controlled substance or played a substantial part in negotiating the terms of the sale.

Example: A defendant, who the court finds meets the criteria for a downward departure under this provision, has a Chapter Two offense level of 38, a 2-level reduction for a minor role from §3B1.2, and a 3-level reduction for acceptance of responsibility from §3E1.1. His final offense level is 33. If the defendant’s Chapter Two offense level had been 36, the 2-level reduction for a minor role and 3-level reduction for acceptance of responsibility would have resulted in a final offense level of 31. Therefore, under this provision, a downward departure not to exceed 2 levels (from level 33 to level 31) would be authorized.";

and by redesignating Notes 15 through 21 as Notes 14 through 20, respectively.

Section 5C1.2 is amended in the first paragraph by striking "In" and inserting "(a) Except as provided in subsection (b), in".

Section 5C1.2 is amended by inserting after subsection (a), as so designated by this amendment, the following:

"(b) In the case of a defendant (1) who meets the criteria set forth in subsection (a); and (2) for whom the statutorily required minimum sentence is at least five years, the offense level applicable from Chapters Two (Offense Conduct) and Three (Adjustments) shall be not less than level 17.".

The Commentary to §5C1.2 captioned "Application Notes" is amended in Notes 1 and 2 by striking "subdivision" each place it appears and inserting "subsection (a)".

The Commentary to §5C1.2 captioned "Application Notes" is amended in Note 3 by striking "subdivisions" and inserting "subsection (a)"; and striking "subdivision" and inserting "subsection (a)".

The Commentary to §5C1.2 captioned "Application Notes" is amended in Notes 4 through 7 by striking "subdivision" each place it appears and inserting "subsection (a)".

Reason for Amendment: This amendment expands the eligibility for the two-level reduction in subsection (b)(6) of §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) for persons who meet the criteria set forth in §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases) to include defendants with an offense level less than level 26. The Commission determined that limiting the applicability of this reduction to defendants with an offense level of level 26 or greater is inconsistent with the general principles underlying this two-level reduction (and the related safety valve provision, see 18 U.S.C. § 3553(f)) to provide lesser punishment for first time, nonviolent offenders.

This amendment also establishes in §5C1.2 a minimum offense level of level 17 for a defendant who meets the requirements set forth in §5C1.2, and for whom the statutorily required minimum sentence is at least five years, in order to comply more strictly with the directive to the Commission at section 80001(b) of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103–322.

Effective Date: The effective date of this amendment is November 1, 2001.