Federal Register Notice of Proposed 2022-2023 Amendments

UNITED STATES SENTENCING COMMISSION

Federal Register Notice

Proposed Amendments for Amendment Cycle

AGENCY: United States Sentencing Commission.

ACTION: Notice and request for public comment and 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 received by the Commission not later than March 14, 2023. Any public comment received after the close of the 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: There are two methods for submitting public comment.

(1) Electronic Submission of Comments.—Comments may be submitted electronically via the Commission’s Public Comment Submission Portal at https://comment.ussc.gov. Follow the online instructions for submitting comments.

(2) Submission of Comments by Mail.—Comments may be submitted by mail to the following address: United States Sentencing Commission, One Columbus Circle, N.E., Suite 2-500, Washington, D.C. 20002-8002, Attention: Public Affairs – Proposed Amendments.

FOR FURTHER INFORMATION CONTACT: Jennifer Dukes, Senior Public Affairs Specialist, (202) 502-4597.

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 [2][4][6] 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 proposed amendment to §1B1.13 (Reduction in Term of Imprisonment Under 18 U.S.C. 3582(c)(1)(A) (Policy Statement)) to implement the First Step Act of 2018 (Pub. L. 115–391) and revise the list of circumstances that should be considered extraordinary and compelling reasons for sentence reductions under 18 U.S.C. 3582(c)(1)(A), and related issues for comment;

(2) A two-part proposed amendment to implement the First Step Act of 2018 (Pub. L. 115–391) including (A) (i) amendments to §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases) to reflect the broader class of defendants who are eligible for safety valve relief under the First Step Act and to provide additional conforming changes; (ii) amendments to §4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)) to make conforming changes; (iii) two options for amending §§2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) and 2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy) in light of the proposed revisions to §5C1.2; and (iv) related issues for comment; and (B) amendments to §2D1.1 to make the guideline’s base offense levels consistent with the First Step Act’s changes to the type of prior offenses that trigger enhanced mandatory minimum penalties;

(3) A multi-part proposed amendment to §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) to implement the Bipartisan Safer Communities Act (Pub. L. 117–159) and make other changes that may be warranted to appropriately address firearms offenses, including (A) amendments to Appendix A (Statutory Index) and two options for amending §2K2.1 to address (i) the new offenses established by the Bipartisan Safer Communities Act and to increase penalties for offenses involving straw purchases and firearms trafficking as required by the directive contained in the Act; (ii) the part of the directive in the Bipartisan Safer Communities Act that requires the Commission to “consider, in particular, an appropriate amendment to reflect the intent of Congress that straw purchasers without significant criminal histories receive sentences that are sufficient to deter participation in such activities and reflect the defendant’s role and culpability, and any coercion, domestic violence survivor history, or other mitigating factors”; (iii) the part of the directive in the Bipartisan Safer Communities Act that requires the Commission to “review and amend its guidelines and policy statements to reflect the intent of Congress that a person convicted of an offense under section 932 or 933 of title 18, United States Code, who is affiliated with a gang, cartel, organized crime ring, or other such enterprise should be subject to higher penalties than an otherwise unaffiliated individual”; and (iv) related issues for comment; (B) amendments to §2K2.1 in response to concerns expressed by some commenters that the guideline does not adequately address firearms that are not marked by a serial number (i.e., “ghost guns”), and a related issue for comment; and (C) a series of issues for comment on

(4) two-part proposed amendment addressing certain circuit conflicts involving §3E1.1 (Acceptance of Responsibility) and §4B1.2 (Definitions of Terms Used in Section 4B1.1), including (A) amendments to §3E1.1 to address circuit conflicts regarding the permissible bases for withholding a reduction under §3E1.1(b), and a related issue for comment; and (B) two options for amending §4B1.2 to address a circuit conflict concerning whether the definition of “controlled substance offense” in §4B1.2(b) only covers offenses involving substances controlled by federal law, and a related issue for comment;

(5) A multi-part proposed amendment in response to recently enacted legislation, 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), and to the Commentary to §2N1.1 (Tampering or Attempting to Tamper Involving Risk of Death or Bodily Injury) to make a technical correction, and a related issue for comment; (B) 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), as well as bracketing the possibility of amending the Commentary to §§4B1.5 (Repeat and Dangerous Sex Offender Against Minors) and 5D1.2 (Term of Supervised Release), in response to the Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (Pub. L. 115–164), and related issues for comment; (C) amendments to Appendix A and §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 Commentary 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), and a related issue for comment; (D) amendments to Appendix A and the Commentary to §§2B1.1 (Theft, Property Destruction, and Fraud) and 2B4.1 (Bribery in Procurement of Bank Loan and Other Commercial Bribery) in response to the SUPPORT for Patients and Communities Act (Pub. L. 115–271), and a related issue for comment; (E) amendments to Appendix A and the Commentary to §2X5.2 in response to the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 (Pub. L. 115–299), and a related issue for comment; (F) amendments to Appendix A and the Commentary to §2H3.1 (Interception of Communications; Eavesdropping; Disclosure of Certain Private or Protected Information) in response to the Foundations for Evidence-Based Policymaking Act of 2018 (Pub. L. 115–435), and a related issue for comment; (G) amendments to Appendix A and the Commentary to §2X5.2 in response to the National Defense Authorization Act for Fiscal Year 2020 (Pub. L. 116–92), and a related issue for comment; (H) amendments to Appendix A and the Commentary to §2B1.1 in response to the Representative Payee Fraud Prevention Act of 2019 (Pub. L. 116–126), and a related issue for comment; (I) amendments to Appendix A and the Commentary to §2B1.1 in response to the Stop Student Debt Relief Scams Act of 2019 (Pub. L. 116–251), and a related issue for comment; (J) amendments to Appendix A in response to the Protecting Lawful Streaming Act of 2020, part of the Consolidation Appropriation Act, 2021 (Pub. L. 116–260), and related issues for comment; and (K) amendments to Appendix A and the Commentary to §2S1.3 (Structuring Transactions to Evade Reporting Requirements; Failure to Report Cash or Monetary Transactions; Failure to File Currency and Monetary Instrument Report; Knowingly Filing False Reports; Bulk Cash Smuggling; Establishing or Maintaining Prohibited Accounts) in response to the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Pub. L. 116–283), and a related issue for comment;

(6) A multi-part proposed amendment relating to §4B1.2 (Definitions of Terms Used in Section 4B1.1), including (A) (i) amendments §4B1.2 to eliminate the categorical approach from the guidelines by defining “crime of violence” and “controlled substance offense” based upon a list of guidelines, rather than offenses or elements of an offense; (ii) 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 (iii) related issues for comment; (B) amendments to §4B1.2 and the Commentary to §2L1.2 (Unlawfully Entering or Remaining in the United States) 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) two options for amending §4B1.2 to address two circuit conflicts 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 offenses involving an offer to sell a controlled substance and offenses described in 46 U.S.C. 70503(a) and 70506(b), and a related issue for comment;

(7) A multi-part proposed amendment relating to criminal history, including (A) three options for amending the Guidelines Manual to address the impact of “status points” under subsection (d) of section 4A1.1 (Criminal History Category), and related issues for comment; (B) (i) two options for establishing a new Chapter Four guideline, at §4C1.1 (Adjustment for Certain Zero-Point Offenders), that would provide an offense level decrease for offenders with zero criminal history points who meet certain criteria; (ii) amendments to the Commentary to §5C1.1 (Imposition of a Term of Imprisonment) to address the alternatives to incarceration available to offenders with zero criminal history points who receive an adjustment under the proposed §4C1.1, and conforming changes to §4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)) and Chapter One, Part A, Subpart 1(4)(d) (Probation and Split Sentences); and (iii) related issues for comment; (C) amendments to the Commentary to §4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)) to include sentences resulting from possession of marihuana offenses as an example of when a downward departure from the defendant’s criminal history may be warranted, and related issues for comment;

(8) A proposed amendment to §1B1.3 (Relevant Conduct (Factors that Determine the Guideline Range)) and §6A1.3 (Resolution of Disputed Factors (Policy Statement)) to generally limit the use of acquitted conduct for purposes of determining the guideline range, except when such conduct was admitted by the defendant during a guilty plea colloquy or was found by the trier of fact beyond a reasonable doubt to establish, in whole or in part, the instant offense of conviction, and related issues for comment;

(9) A two-part proposed amendment to certain guidelines applicable to sexual abuse offenses, including (A) amendments to Appendix A (Statutory Index), §2A3.3 (Criminal Sexual Abuse of a Ward or Attempt to Commit Such Acts), and the Commentary to §2H1.1 (Offenses Involving Individual Rights) in response to the Violence Against Women Act Reauthorization Act of 2022, which was part of the Consolidated Appropriations Act, 2022 (Pub. L. 117–103), and related issues for comment; and (B) amendments to §2A3.3 to address concerns regarding the increasing number of cases involving sexual abuse committed by law enforcement or correctional personnel against victims in their custody, care, or supervision, and related issues for comment;

(10) Issues for comment regarding a potential study of federal alternative-to-incarceration court programs and possible amendments to the Guidelines Manual to address such programs;

(11) A proposed amendment to §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) to address offenses involving “fake pills” (i.e., illicitly manufactured pills represented or marketed as legitimate pharmaceutical pills) containing fentanyl or fentanyl analogue, and a related issue for comment;

(12) A two-part proposed amendment addressing miscellaneous guideline issues, including (A) amendments to §3D1.2 (Grouping of Closely Related Counts) to address the interaction between §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) and §3D1.2(d); and (B) amendments 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

(13) A multi-part proposed amendment to make technical and other non-substantive changes to the Guidelines Manual, including (A) technical changes to provide updated references to certain sections in the United States Code that were redesignated in legislation; (B) technical changes to reflect the editorial reclassification of certain sections in the United States Code; (C) 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; (D) technical changes to the commentary of several guidelines to provide references to the specific applicable provisions of 18 U.S.C. 876; (E) technical changes to the commentary of several guidelines in Chapter Eight (Sentencing of Organizations); and (F) clerical changes to correct typographical errors in several guidelines, policy statements, and commentary..

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 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)) 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.

Carlton W. Reeves,

Chair