AMENDMENT 786

Amendment: The Commentary to §5D1.2 captioned “Application Notes” is amended in Note 1, in the paragraph that begins “ ‘Sex offense’ means”, in subparagraph (A), by striking “(ii) chapter 109B of such title;”, and by redesignating clauses (iii) through (vi) as clauses (ii) through (v), respectively; in subparagraph (B) by striking “(vi)” and inserting “(v)”; and by adding at the end as the last sentence the following: “Such term does not include an offense under 18 U.S.C. § 2250 (Failure to register).”.

The Commentary to §5D1.2 captioned “Application Notes” is amended by adding at the end the following new Note 6:

“6. Application of Subsection (c).—Subsection (c) specifies how a statutorily required minimum term of supervised release may affect the minimum term of supervised release provided by the guidelines.

For example, if subsection (a) provides a range of two years to five years, but the relevant statute requires a minimum term of supervised release of three years and a maximum term of life, the term of supervised release provided by the guidelines is restricted by subsection (c) to three years to five years. Similarly, if subsection (a) provides a range of two years to five years, but the relevant statute requires a minimum term of supervised release of five years and a maximum term of life, the term of supervised release provided by the guidelines is five years.

The following example illustrates the interaction of subsections (a) and (c) when subsection (b) is also involved. In this example, subsection (a) provides a range of two years to five years; the relevant statute requires a minimum term of supervised release of five years and a maximum term of life; and the offense is a sex offense under subsection (b). The effect of subsection (b) is to raise the maximum term of supervised release from five years (as provided by subsection (a)) to life, yielding a range of two years to life. The term of supervised release provided by the guidelines is then restricted by subsection (c) to five years to life. In this example, a term of supervised release of more than five years would be a guideline sentence. In addition, subsection (b) contains a policy statement recommending that the maximum — a life term of supervised release — be imposed.”.

Reason for Amendment: This amendment resolves a circuit conflict and a related guideline application issue about the calculation of terms of supervised release. The circuit conflict involves defendants sentenced under statutes providing for mandatory minimum terms of supervised release, while the application issue relates specifically to defendants convicted of failure to register as a sex offender, in violation of 18 U.S.C. § 2250.

The guideline term of supervised release is determined by §5D1.2 (Term of Supervised Release). Section 5D1.2(a) sets forth general rules for determining the guideline term of supervised release, based on the statutory classification of the offense. See §5D1.2(a)(1)–(3); 18 U.S.C. § 3559 (sentencing classification of offenses). For certain terrorism-related and sex offenses, §5D1.2(b) operates to replace the top end of the guideline term calculated under subsection (a) with a life term of supervised release. In the case of a “sex offense,” as defined by Application Note 1 to §5D1.2, a policy statement recommends that a life term of supervised release be imposed. See §5D1.2(b), p.s. Finally, §5D1.2(c) states that “the term of supervised release imposed shall be not less than any statutorily required term of supervised release.”

When a Statutory Minimum Term of Supervised Release Applies

First, there appear to be differences among the circuits in how to calculate the guideline term of supervised release when there is a statutory minimum term of supervised release. These cases involve the meaning of subsection (c) and its interaction with subsection (a).

The Seventh Circuit has held that when there is a statutory minimum term of supervised release, the statutory minimum term becomes the bottom of the guideline range (replacing the bottom of the term provided by (a)) and, if the statutory minimum equals or exceeds the top of the guideline term provided by subsection (a), the guideline “range” becomes a single point at the statutory minimum. United States v. Gibbs, 578 F.3d 694, 695 (7th Cir. 2009). Thus, if subsection (a) provides a range of three to five years, but the statute provides a range of five years to life, the “range” is precisely five years. Gibbs involved a drug offense for which 21 U.S.C. § 841(b) required a supervised release term of five years to life. See also United States v. Goodwin, 717 F.3d 511, 519–20 (7th Cir. 2013) (applying Gibbs to a case involving a failure to register for which 18 U.S.C. § 3583(k) required a supervised release term of five years to life).

These cases are in tension with the approach of the Eighth Circuit in United States v. Deans, 590 F.3d 907, 911 (8th Cir. 2010). In Deans, the range calculated under subsection (a) was two to three years of supervised release. However, the relevant statute, 21 U.S.C. § 841(b)(1)(C), provided a range of three years to life. Under the Seventh Circuit’s approach in Gibbs, the guideline “range” would be precisely three years. Without reference to Gibbs, the Eighth Circuit in Deans indicated that the statutory requirement “trumps” subsection (a), and the guideline range becomes the statutory range — three years to life. 590 F.3d at 911. Thus, the district court’s imposition of five years of supervised release “was neither an upward departure nor procedural error.” Id.

The amendment adopts the approach of the Seventh Circuit in Gibbs and Goodwin. The amendment provides a new Application Note and examples explaining that, under subsection (c), a statutorily required minimum term of supervised release operates to restrict the low end of the guideline term of supervised release.

The Commission determined that this resolution was most consistent with its statutory obligation to determine the “appropriate length” of supervised release terms, and with how a statutory minimum term of imprisonment operates to restrict the range of imprisonment provided by the guidelines. See 28 U.S.C. § 994(a)(1)(c); USSG §5G1.1(a). This outcome is also consistent with the Commission’s 2010 report on supervised release, which found that most supervised release violations occur in the first year after release from incarceration. See U.S. Sentencing Comm’n, Federal Offenders Sentenced to Supervised Release, at 63 & n. 265 (July 2010). If an offender shows non‑compliance during the initial term of supervised release, the court may extend the term of supervision up to the statutory maximum, pursuant to 18 U.S.C. § 3583(e)(2).

When the Defendant is Convicted of Failure to Register as a Sex Offender

Second, there are differences among the circuits over how to calculate the guideline range of supervised release when a defendant is convicted, under 18 U.S.C. § 2250, of failing to register as a sex offender. That offense carries a statutory minimum term of supervised release of at least five years, with a term up to life permitted. See 18 U.S.C. § 3583(k).

There is an application issue about when, if at all, such an offense is a “sex offense” for purposes of subsection (b) of §5D1.2. If a failure to register is a sex offense, then subsection (b) specifically provides for a term of supervised release of anywhere from the minimum provided by subsection (a) to the maximum provided by statute (i.e., life), and a policy statement contained within subsection (b) recommends that the maximum be imposed. See §5D1.2(b), p.s. Another effect of the determination is that, if failure to register is a “sex offense,” the guidelines recommend that special conditions of supervised release also be imposed, such as participating in a sex offender monitoring program and submitting to warrantless searches. See §5D1.3(d)(7).

Application Note 1 defines “sex offense” to mean, among other things, “an offense, perpetrated against a minor, under” chapter 109B of title 18 (the only section of which is Section 2250). Circuits have reached different conclusions about the effect of this definition.

The Seventh Circuit has held that a failure to register can never be a “sex offense” within the meaning of Note 1. United States v. Goodwin, 717 F.3d 511, 518–20 (7th Cir. 2013); see also United States v. Segura, 747 F.3d 323, 329 (5th Cir. 2014) (agreeing with Goodwin). The court in Goodwin reasoned that there is no specific victim of a failure to register, and therefore a failure to register is never “perpetrated against a minor” and can never be a “sex offense” — rendering the definition’s inclusion of offenses under chapter 109B “surplusage.” 717 F.3d at 518. In an unpublished opinion, the Second Circuit has determined that a failure to register was not a “sex offense.” See United States v. Herbert, 428 Fed. App’x 37 (2d Cir. 2011). In both cases, the government argued for these outcomes, confessing error below.

There are unpublished decisions in other circuits that have reached different results, without discussion. In those cases, the defendant had a prior sex offense against a minor, and the circuit court determined that the failure to register was a “sex offense.” See United States v. Zeiders, 440 Fed. App’x 699, 701 (11th Cir. 2011); United States v. Nelson, 400 Fed. App’x 781 (4th Cir. 2010).

The Commission agrees with the Seventh Circuit that failure to register is not an offense that is “perpetrated against a minor.” In addition, expert testimony and research reviewed by the Commission indicated that commission of a failure-to-register offense is not correlated with sex offense recidivism. The amendment resolves the application issue by amending the commentary to §5D1.2 to clarify that offenses under Section 2250 are not “sex offenses.”

Effective Date: The effective date of this amendment is November 1, 2014.