UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice of proposed amendments to sentencing guidelines, policy statements, and commentary. Request for public comment, including public comment regarding retroactive application of any of the proposed amendments. Notice of public hearing.
SUMMARY: Pursuant to section 994(a), (o), and (p) of title 28, United States Code, the United States Sentencing Commission is considering promulgating amendments to the sentencing guidelines, policy statements, and commentary. This notice sets forth the proposed amendments and, for each proposed amendment, a synopsis of the issues addressed by that amendment. This notice also sets forth several issues for comment, some of which are set forth together with the proposed amendments, and one of which (regarding retroactive application of proposed amendments) is set forth in the Supplementary Information section of this notice.
DATES: (1) Written Public Comment.―Written public comment regarding the proposed amendments and issues for comment set forth in this notice, including public comment regarding retroactive application of any of the proposed amendments, should be received by the Commission not later than February 19, 2019. Written reply comments, which may only respond to issues raised during the original comment period, should be received by the Commission not later than March 15, 2019. Public comment regarding a proposed amendment received after the close of the comment period, and reply comment received on issues not raised during the original comment period, may not be considered.
(2) Public Hearing.―The Commission may hold a public hearing regarding the proposed amendments and issues for comment set forth in this notice. Further information regarding any public hearing that may be scheduled, including requirements for testifying and providing written testimony, as well as the date, time, location, and scope of the hearing, will be provided by the Commission on its website at www.ussc.gov.
ADDRESSES: All written comment should be sent to the Commission by electronic mail or regular mail. The email address for public comment is Public_Comment@ussc.gov. The regular mail address for public comment is United States Sentencing Commission, One Columbus Circle, N.E., Suite 2-500, Washington, D.C. 200002-8002, Attention: Public Affairs – Proposed Amendments.
FOR FURTHER INFORMATION CONTACT: Christine Leonard, Director, Office of Legislative and Public Affairs, (202) 502-4500, email@example.com.
SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for federal courts pursuant to 28 U.S.C. § 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. § 994(o) and submits guideline amendments to the Congress not later than the first day of May each year pursuant to 28 U.S.C. § 994(p).
Publication of a proposed amendment requires the affirmative vote of at least three voting members of the Commission and is deemed to be a request for public comment on the proposed amendment. See USSC Rules of Practice and Procedure 2.2, 4.4. In contrast, the affirmative vote of at least four voting members is required to promulgate an amendment and submit it to Congress. See id. 2.2; 28 U.S.C. § 994(p).
The proposed amendments in this notice are presented in one of two formats. First, some of the amendments are proposed as specific revisions to a guideline, policy statement, or commentary. Bracketed text within a proposed amendment indicates a heightened interest on the Commission’s part in comment and suggestions regarding alternative policy choices; for example, a proposed enhancement of  levels indicates that the Commission is considering, and invites comment on, alternative policy choices regarding the appropriate level of enhancement. Similarly, bracketed text within a specific offense characteristic or application note means that the Commission specifically invites comment on whether the proposed provision is appropriate. Second, the Commission has highlighted certain issues for comment and invites suggestions on how the Commission should respond to those issues.
In summary, the proposed amendments and issues for comment set forth in this notice are as follows:
(1) a two-part proposed amendment to §1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)), including (A) three options for amending the policy statement and commentary in light of Koons v. United States, 138 S. Ct. 1783 (2018); and (B) two options for amending the commentary to resolve a circuit conflict concerning the application of §1B1.10(b)(2)(B), and a related issue for comment;
(2) a multi-part proposed amendment to §4B1.2 (Definitions of Terms Used in Section 4B1.1), including (A) amendments establishing that the categorical approach and modified categorical approach do not apply in determining whether a conviction is a “crime of violence” or a “controlled substance offense” by (i) providing that, in making that determination, a court shall consider any element or alternative means for meeting an element of the offense committed by the defendant, as well as the conduct that formed the basis of the offense of conviction, (ii) allowing courts to look at a wider range of sources from the judicial record, beyond the statute of conviction, in determining the conduct that formed the basis of the offense of conviction, and (iii) making similar revisions to §2L1.2 (Unlawfully Entering or Remaining in the United States), as well as conforming changes to the guidelines that use the terms “crime of violence” and “controlled substance offense” and define these terms by making specific reference to §4B1.2, and related issues for comment; (B) three options to address the concern that certain robbery offenses, such as Hobbs Act robbery, no longer constitute a “crime of violence” under §4B1.2, as amended in 2016, because these offenses do not meet either the generic definition of “robbery” or the new guidelines definition of “extortion,” and related issues for comment; (C) three options to address certain issues regarding the commentary provision stating that the terms “crime of violence” and “controlled substance offense” include the offenses of aiding and abetting, conspiring to commit, and attempting to commit a “crime of violence” and a “controlled substance offense,” and related issues for comment; and (D) revisions to the definition of “controlled substance offense” in §4B1.2(b) to include: (i) offenses involving an offer to sell a controlled substance, and (ii) offenses described in 46 U.S.C. § 70503(a) and § 70506(b), and a related issue for comment;
(3) a multi-part proposed amendment addressing recently enacted legislation and miscellaneous guideline issues, including (A) amendments to Appendix A (Statutory Index) and the Commentary to §2N2.1 (Violations of Statutes and Regulations Dealing with Any Food, Drug, Biological Product, Device, Cosmetic, Agricultural Product, or Consumer Product) in response to the FDA Reauthorization Act of 2017, Pub. L. 115–52 (Aug. 18, 2017), a technical correction to the Commentary to §2N1.1 (Tampering or Attempting to Tamper Involving Risk of Death or Bodily Injury), and a related issue for comment; (B) amendments to Appendix A, §2A5.2 (Interference with Flight Crew Member or Flight Attendant; Interference with Dispatch, Navigation, Operation, or Maintenance of Mass Transportation Vehicle), as well as the commentaries to §2A2.4 (Obstructing or Impeding Officers) and §2X5.2 (Class A Misdemeanors (Not Covered by Another Specific Offense Guideline)), in response to the FAA Reauthorization Act of 2018, Pub. L. 115–254 (Oct. 8, 2018), and a related issue for comment; (C) amendments to Appendix A, §2G1.1 (Promoting a Commercial Sex Act or Prohibited Sexual Conduct with an Individual Other than a Minor), and §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), in response to the Allow States and Victims to Fight Online Sex Trafficking Act of 2017, Pub. L. 115–164 (Apr. 11, 2018), and related issues for comment; (D) an amendment to subsection (d) of §3D1.2 (Grouping of Closely Related Counts) to provide that offenses covered by §2G1.3 are not grouped under that subsection; and (E) an amendment to the Commentary to §5F1.7 (Shock Incarceration Program (Policy Statement)) to reflect the fact that the Bureau of Prisons no longer operates a shock incarceration program; and
(4) a proposed amendment to make various technical changes to the Guidelines Manual, including (A) technical changes to reflect the editorial reclassification of certain provisions previously contained in the Appendix to Title 50, to new chapters 49 to 57 of Title 50 and to other titles of the Code; (B) technical changes throughout the Commentary to §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy), to, among other things, reorganize in alphabetical order the controlled substances contained in the tables therein to make them more user-friendly; (C) technical changes to the commentaries to §2A4.2 (Demanding or Receiving Ransom Money), §2A6.1 (Threatening or Harassing Communications; Hoaxes; False Liens), and §2B3.2 (Extortion by Force or Threat of Injury or Serious Damage), and to Appendix A, to provide references to the specific applicable provisions of 18 U.S.C. § 876; and (D) clerical changes to the background commentaries to §1B1.11 (Use of Guidelines Manual in Effect on Date of Sentencing (Policy Statement)), §3D1.1 (Procedure for Determining Offense Level on Multiple Counts), and §5G1.3 (Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment or Anticipated State Term of Imprisonment).
In addition, the Commission requests public comment regarding whether, pursuant to 18 U.S.C. § 3582(c)(2) and 28 U.S.C. § 994(u), any proposed amendment published in this notice should be included in subsection (d) of §1B1.10 as an amendment that may be applied retroactively to previously sentenced defendants. The Commission lists in §1B1.10(d) the specific guideline amendments that the court may apply retroactively under 18 U.S.C. § 3582(c)(2). The Background Commentary to §1B1.10 lists the purpose of the amendment, the magnitude of the change in the guideline range made by the amendment, and the difficulty of applying the amendment retroactively to determine an amended guideline range under §1B1.10(b) as among the factors the Commission considers in selecting the amendments included in §1B1.10(d). To the extent practicable, public comment should address each of these factors.
The text of the proposed amendments and related issues for comment are set forth below. Additional information pertaining to the proposed amendments and issues for comment described in this notice may be accessed through the Commission’s website at www.ussc.gov.
AUTHORITY: 28 U.S.C. § 994(a), (o), (p), (x); USSC Rules of Practice and Procedure 2.2, 4.3, 4.4.
William H. Pryor Jr.,