Notice of final action re. amendments to sentencing guidelines and policy statements eff. 11/1/97

BAC2210-40

UNITED STATES SENTENCING COMMISSION

SENTENCING GUIDELINES FOR UNITED STATES COURTS

AGENCY:United States Sentencing Commission

ACTION:Notice of: (a) final action regarding amendments to sentencing guidelines and policy statements effective November 1, 1997; and (b) an amendment to correct a clerical error in USSG §2K2.1(a)(3), as amended by amendment 522 (November 1, 1995).

SUMMARY: The Sentencing Commission hereby gives notice of: (a) several amendments to policy statements and commentary made pursuant to its authority under 28 U.S.C. §§ 994(a);

(b) conforming and technical amendments to several amendments submitted to Congress on

May 1, 1997; and (c) an amendment to correct a clerical error that omitted the word “felony” from the phrase “prior felony” in USSG §2K2.1(a)(3), as amended by amendment 522 (November 1, 1995).

DATES: The effective date of these amendments is November 1, 1997.

FOR FURTHER INFORMATION CONTACT:Michael Courlander, Public Information Specialist, Telephone:(202) 273-4590.

AUTHORITY:28 U.S.C. § 994 (a), (o), (x).

Richard P. Conaboy,

Chairman

1. Amendment: The Commentary to new guideline §2A6.2 (see 62 F.R. 26615 (1997)) captioned "Application Notes" is amended in Note 1 by inserting at the beginning the following:

"For purposes of this guideline—

?Bodily injury’ and ?dangerous weapon’ are defined in the Commentary to §1B1.1 (Application Instructions).".

Reason for Amendment: This amendment incorporates into §2A6.2 the definitions of “bodily injury” and “dangerous weapon” found in §1B1.1 (Application Instructions). The definition of bodily injury found in the guidelines differs from the definition of bodily injury in 18 U.S.C. § 2266 that is applicable to interstate stalking and interstate domestic violence offenses. The definition of “bodily injury” in 18 U.S.C. § 2266 explicitly includes sexual abuse, but the guideline definition of “bodily injury” does not. However, the Commission is fully aware that criminal sexual abuse often is part of a domestic violence offense under 18 U.S.C. §§ 2261 and 2262 and may be part of a stalking offense under 18 U.S.C. § 2261A. It is the view of the Commission that the new guideline provides an adequate mechanism for taking into account the occurrence of criminal sexual abuse in any of these offenses. This is because the guideline definition of “serious bodily injury” in §1B1.1 deems serious bodily injury – a more serious gradient of bodily injury – to have occurred if the offense involved conduct constituting criminal sexual abuse under 18 U.S.C. § 2241 or § 2242 or any similar offense under state law. Under the new guideline, any offense that involved criminal sexual abuse almost certainly will be subject to the cross reference to another offense guideline and to the rule deeming such conduct to be serious bodily injury (for purposes of applying a serious bodily injury enhancement in that other guideline to the offense). Therefore, in all likelihood, the sentence will be enhanced for the occurrence of criminal sexual abuse because the case will be cross referenced to another guideline that enhances for serious bodily injury.

2. Amendment: The Commentary to §2B4.1 captioned "Statutory Provisions" is amended by deleting "§§ 11907(a), (b)" and inserting in lieu thereof "§ 11902".

The Commentary to §2N3.1 captioned "Statutory Provisions" is amended by deleting "15 U.S.C. §§ 1983-1988, 1990c" and inserting in lieu thereof "49 U.S.C. §§ 32703- 32705, 32709(b).".

The Commentary to §2Q1.2 captioned "Statutory Provisions" is amended by deleting "§ 1809(b)" and inserting in lieu thereof "§ 60123(d)".

Reason for Amendment: This amendment makes technical corrections to §2B4.1 (Bribery in Procurement of Bank Loan and Other Commercial Bribery), §2N3.1(Odometer Laws and Regulations), §2Q1.2 (Mishandling of Hazardous or Toxic Substances or Pesticides; Recordkeeping, Tampering, and Falsification; Unlawfully Transporting Hazardous Materials in Commerce), to reflect changes made to statutory references when Congress codified Title 49 (Transportation), United States Code. Pub. L. 103-272, § 1(e), July 5, 1994, 108 Stat. 1356; Pub. L. 104-88, Title I, § 102(a), December 29, 1995, 109 Stat. 850.

3. Amendment: The Commentary to §2D1.11 captioned "Application Notes" is amended in Note 4(a) in the fourth sentence by deleting "14" and inserting in lieu thereof "16".

Reason for Amendment: This amendment corrects a clerical error.

4. Amendment: The Commentary to §2K1.5 captioned "Background" is amended by deleting:

"Except under the circumstances specified in 49 U.S.C. § 46505(c), the offense covered by this section is a misdemeanor for which the maximum term of imprisonment authorized by statute is one year.";

by deleting "An" and inserting in lieu thereof "This guideline provides an"; and by deleting "is provided" immediately after "enhancement".

Reason for Amendment: This amendment strikes background commentary in guideline §2K1.5 that is no longer correct because of a recent change in statutory penalties. Specifically, the Antiterrorism Act of 1996 increased the statutory maximum penalty for violations of 49 U.S.C. § 46505(b) from not more than one year to not more than 10 years. This increase changes the classification of an offense under subsection (b) from a class A misdemeanor to a class D felony.

5. Amendment: The Commentary to §4B1.1 captioned "Application Notes" is amended in Note 2 by deleting "not" after "offense," in the first sentence; by deleting "(b)(1)(B), (b)(1)(C), and (b)(1)(D)" and inserting in lieu thereof "(B), (C), and (D)"; by deleting "where" and inserting in lieu thereof "in a case in which"; by inserting "for that defendant" after "Maximum’"; by deleting "twenty years and not thirty years" and inserting in lieu thereof "thirty years and not twenty years"; by deleting "authorizes" and inserting in lieu thereof "has"; and by deleting "maximum term of imprisonment" and inserting in lieu thereof "offense statutory maximum".

The Commentary to §4B1.1 captioned "Background" is amended by deleting:

"The legislative history of this provision suggests that the phrase ?maximum term authorized’ should be construed as the maximum term authorized by statute. See S. Rep. No. 225, 98th Cong., 1st Sess. 175 (1983); 128 Cong. Rec. 26, 511-12 (1982) (text of ?Career Criminals’ amendment by Senator Kennedy); id. at 26,515 (brief summary of amendment); id. at 26,517-18 (statement of Senator Kennedy).".

Reason for Amendment: This amendment responds to United States v. LaBonte, 117 S.Ct. 1673. In LaBonte, the Supreme Court held that the way in which the Commission defined "maximum term authorized", for purposes of fulfilling the requirement under 28 U.S.C. § 994(h) to specify sentences for certain categories of career offenders at or near the maximum term authorized for those offenders, is inconsistent with § 994(h)’s plain and unambiguous language and is therefore invalid. The Commission defined "maximum term authorized" to mean the maximum term authorized for the offense of conviction not including any sentencing enhancement provisions that apply because of the defendant’s prior criminal record. The Supreme Court held that under § 994’s plain and unambiguous language, "maximum term authorized" must be read to include all applicable statutory sentencing enhancements. The proposed amendment makes a straightforward change to the commentary to §4B1.1, the career offender guideline, to reflect the LaBonte decision. Specifically, the definition of "maximum term authorized" is proposed to be changed to reflect that the "maximum term authorized" includes all sentencing enhancements that apply because of the defendant’s prior criminal record.

6. Amendment: The Commentary to §2K1.3 captioned "Application Notes" is amended in Note 2 by deleting "Note 3" and inserting in lieu thereof "Note 1".

The Commentary to §2K2.1 captioned "Application Notes" is amended in Note 5 by deleting "Note 3" and inserting in lieu thereof "Note 1".

The Commentary to §7B1.1 captioned "Application Notes" is amended in Note 2 by deleting "§4B1.2(1)" and inserting in lieu thereof "§4B1.2(a)"; and by deleting "Notes 1 and 2" and inserting in lieu thereof "Note 1".

The Commentary to §7B1.1 captioned "Application Notes" is amended in Note 3 by deleting "§4B1.2(2)" and inserting in lieu thereof "§4B1.2(b)".

Reason for Amendment: This amendment conforms §§2K1.3, 2K2.1 and 7B1.1 to §4B1.2, as amended November 1, 1997 (see 62 F.R. 26615 (1997)).

7. Amendment: The replacement guideline for §5B1.3 (see 62 F.R. 26615 (1997)) is amended in subsection (a)(2) by inserting the following additional paragraph:

"Note: Section 3563(a)(2) of Title 18, United States Code, provides that, absent unusual circumstances, a defendant convicted of a felony shall abide by at least one of the conditions set forth in 18 U.S.C. § 3563(b)(2), (b)(3), and (b)(13). Before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, those conditions were a fine ((b)(2)), an order of restitution ((b)(3)), and community service ((b)(13)). Whether or not the change was intended, the Act deleted the fine condition and renumbered the restitution and community service conditions in 18 U.S.C. § 3563(b), but failed to make a corresponding change in the referenced paragraphs under 18 U.S.C. § 3563(a)(2). Accordingly, the conditions now referenced are restitution ((b)(2)), notice to victims pursuant to 18 U.S.C. § 3555 ((b)(3)), and an order that the defendant reside, or refrain from residing, in a specified place or area ((b)(13)).".

The Commentary to §2X5.1 captioned "Application Note" is amended in Note 1 by deleting: "§5B1.4 (Recommended Conditions of Probation and Supervised Release);".

Section 5H1.3 is amended by deleting "recommended condition (24) at §5B1.4 (Recommended Conditions of Probation and Supervised Release)" and inserting in lieu thereof "§§5B1.3(d)(5) and 5D1.3(d)(5)".

Section 5H1.4 is amended in the second paragraph by deleting "recommended condition (23) at §5B1.4 (Recommended Conditions of Probation and Supervised Release)" and inserting in lieu thereof "§5D1.3(d)(4)"; and in the third paragraph by deleting "recommended condition (23) at §5B1.4 (Recommended Conditions of Probation and Supervised Release)" and inserting in lieu thereof "§5B1.3(d)(4)".

Section 8D1.3(a) is amended by deleting "shall" immediately after "organization".

Section 8D1.3(b) is amended by deleting "a fine, restitution, or community service," and inserting in lieu thereof "(1) restitution, (2) notice to victims of the offense pursuant to 18 U.S.C. § 3555, or (3) an order requiring the organization to reside, or refrain from residing, in a specified place or area,";

and by adding at the end:

Reason for Amendment: This amendment conforms §§2X5.1, 5H1.3, and 5H1.4 to the replacement guideline for §5B1.3 and the deletion of §5B1.4 (see 62 F.R. 26615 (1997)). The amendment also adds a note to §§5B1.3 and 8D1.3 explaining an ambiguity created by the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1227.

8. Amendment: Section 5K2.0 is amended in the third paragraph by deleting "immigration violations" and inserting in lieu thereof "other guidelines"; and by deleting "for an immigration violation" and inserting in lieu thereof "under one of these other guidelines".

Reason for Amendment: This amendment conforms §5K2.0 to §2L1.1 (see 62 F.R. 26615 (1997)).

9. Amendment: The Commentary to §6A1.3 is amended in the first paragraph by deleting "will no longer exist" and inserting in lieu thereof "no longer exists"; by deleting "will usually have" and inserting in lieu thereof "usually has";

and by deleting:

"Although lengthy sentencing hearings should seldom be necessary, disputes about sentencing factors must be resolved with care. When a reasonable dispute exists about any factor important to the sentencing determination, the court must ensure that the parties have an adequate opportunity to present relevant information. Written statements of counsel or affidavits of witnesses may be adequate under many circumstances. An evidentiary hearing may sometimes be the only reliable way to resolve disputed issues. See United States v. Fatico, 603 F.2d 1053, 1057 n.9 (2d Cir. 1979) cert. denied, 444 U.S. 1073 (1980). The sentencing court must determine the appropriate procedure in light of the nature of the dispute, its relevance to the sentencing determination, and applicable case law.",

and inserting in lieu thereof:

" Although lengthy sentencing hearings seldom should be necessary, disputes about sentencing factors must be resolved with care. When a dispute exists about any factor important to the sentencing determination, the court must ensure that the parties have an adequate opportunity to present relevant information. Written statements of counsel or affidavits of witnesses may be adequate under many circumstances. See, e.g., United States v. Ibanez, 924 F.2d 427 (2d Cir. 1991). An evidentiary hearing may sometimes be the only reliable way to resolve disputed issues. See, e.g., United States v. Jimenez Martinez, 83 F.3d 488, 494-95 (1st Cir. 1996) (finding error in district court’s denial of defendant’s motion for evidentiary hearing given questionable reliability of affidavit on which the district court relied at sentencing); United States v. Roberts, 14 F.3d 502, 521(10th Cir. 1993) (remanding because district court did not hold evidentiary hearing to address defendants’ objections to drug quantity determination or make requisite findings of fact regarding drug quantity); see also, United States v. Fatico, 603 F.2d 1053, 1057 n.9 (2d Cir. 1979), cert. denied, 444 U.S. 1073 (1980). The sentencing court must determine the appropriate procedure in light of the nature of the dispute, its relevance to the sentencing determination, and applicable case law.".

The Commentary to §6A1.3 is amended by deleting:

" In determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. 18 U.S.C. § 3661. Any information may be considered, so long as it has ?sufficient indicia of reliability to support its probable accuracy.’ United States v. Marshall, 519 F. Supp. 751 (E.D. Wis. 1981), aff’d, 719 F.2d 887 (7th Cir. 1983); United States v. Fatico, 579 F.2d 707 (2d Cir. 1978) cert. denied, 444 U.S. 1073 (1980). Reliable hearsay evidence may be considered. Out-of-court declarations by an unidentified informant may be considered ?where there is good cause for the nondisclosure of his identity and there is sufficient corroboration by other means.’ United States v. Fatico, 579 F.2d at 713. Unreliable allegations shall not be considered. United States v. Weston, 448 F.2d 626 (9th Cir. 1971) cert. denied, 404 U.S. 1061 (1972).",

and inserting in lieu thereof:

" In determining the relevant facts, sentencing judges are not restricted to information that would be admissible at trial. See 18 U.S.C. § 3661; see also United States v. Watts, 117 U.S. 633, 635 (1997) (holding that lower evidentiary standard at sentencing permits sentencing court’s consideration of acquitted conduct); Witte v. United States, 515 U.S. 389, 399-401 (1995) (noting that sentencing courts have traditionally considered wide range of information without the procedural protections of a criminal trial, including information concerning criminal conduct that may be the subject of a subsequent prosecution); Nichols v. United States, 511 U.S. 738, 747-48 (1994) (noting that district courts have traditionally considered defendant’s prior criminal conduct even when the conduct did not result in a conviction). Any information may be considered, so long as it has sufficient indicia of reliability to support its probable accuracy. Watts, 117 U.S. at 637; Nichols, 511 U.S. at 748; United States v. Zuleta-Alvarez, 922 F.2d 33 (1st Cir. 1990), cert. denied, 500 U.S. 927 (1991); United States v. Beaulieu, 893 F.2d 1177 (10th Cir.), cert. denied, 497 U.S. 1038 (1990). Reliable hearsay evidence may be considered. United States v. Petty, 982 F.2d 1365 (9th Cir. 1993), cert. denied, 510 U.S. 1040 (1994); United States v. Sciarrino, 884 F.2d 95 (3d Cir.), cert. denied, 493 U.S. 997 (1989). Out-of-court declarations by an unidentified informant may be considered where there is good cause for the non- disclosure of the informant’s identity and there is sufficient corroboration by other means. United States v. Rogers, 1 F.3d 341 (5th Cir. 1993); see also United States v. Young, 981 F.2d 180 (5th Cir.), cert. denied, 508 U.S. 980 (1993); United States v. Fatico, 579 F.2d 707, 713 (2d Cir. 1978), cert. denied, 444 U.S. 1073 (1980). Unreliable allegations shall not be considered. United States v. Ortiz, 993 F.2d 204 (10th Cir. 1993).".

Reason for Amendment: This amendment updates the case law references in the commentary to §6A1.3 to include references to sentencing guideline cases.

10. Amendment: Appendix A (Statutory Index) is amended by inserting, in the appropriate place by title and section:

"18 U.S.C. § 514 2F1.1";

“18 U.S.C. § 611 2H2.1";

"18 U.S.C. § 669 2B1.1";

“18 U.S.C. § 758 2A2.4";

"18 U.S.C. § 1030(a)(7)2B3.2";

"18 U.S.C. § 1035 2F1.1";

"18 U.S.C. § 1347 2F1.1";

"18 U.S.C. § 1518 2J1.2";

"18 U.S.C. § 1831 2B1.1";

"18 U.S.C. § 1832 2B1.1";

"18 U.S.C. § 2261A 2A6.2";

"21 U.S.C. § 841(b)(7)2D1.1";

"21 U.S.C. § 960(d)(7)2D1.11";

"47 U.S.C. § 223(a)(1)(C)2A6.1";

"47 U.S.C. § 223(a)(1)(D)2A6.1";

"47 U.S.C. § 223(a)(1)(E)2A6.1";

"49 U.S.C. § 5124 2Q1.2";

"49 U.S.C. § 32703 2N3.1";

"49 U.S.C. § 32704 2N3.1";

"49 U.S.C. § 32705 2N3.1";

"49 U.S.C. § 32709(b)2N3.1";

"49 U.S.C. § 60123(d)2B1.3";

"49 U.S.C. § 80116 2F1.1";

"49 U.S.C. § 80501 2B1.3";

in the line referenced to "15 U.S.C. § 1281" by inserting "(for offenses committed prior to July 5, 1994)" immediately after "2B1.3";

in the line referenced to "15 U.S.C. § 1983" by inserting "(for offenses committed prior to July 5, 1994)" immediately after "2N3.1";

in the line referenced to "15 U.S.C. § 1984" by inserting "(for offenses committed prior to July 5, 1994)" immediately after "2N3.1";

in the line referenced to "15 U.S.C. § 1985" by inserting "(for offenses committed prior to July 5, 1994)" immediately after "2N3.1";

in the line referenced to "15 U.S.C. § 1986" by inserting "(for offenses committed prior to July 5, 1994)" immediately after "2N3.1";

in the line referenced to "15 U.S.C. § 1987" by inserting "(for offenses committed prior to July 5, 1994)" immediately after "2N3.1";

in the line referenced to "15 U.S.C. § 1988" by inserting "(for offenses committed prior to July 5, 1994)" immediately after "2N3.1";

in the line referenced to "15 U.S.C. § 1990c" by inserting "(for offenses committed prior to July 5, 1994)" immediately after "2N3.1";

by deleting "18 U.S.C. § 10082F1.1, 2S1.3";

in the line referenced to "18 U.S.C. § 1030(a)(2)" by deleting "2F1.1" and inserting in lieu thereof "2B1.1";

in the line referenced to "18 U.S.C. § 1030(a)(3)" by deleting "2F1.1" and inserting in lieu thereof "2B2.3";

in the line referenced to "18 U.S.C. § 1030(a)(5)" by deleting "2F1.1" and inserting in lieu thereof "2B1.3";

by deleting:

"18 U.S.C. § 2258(a), (b)2G2.1, 2G2.2",

and inserting in lieu thereof:

"18 U.S.C. § 2260 2G2.1, 2G2.2";

in the line referenced to "18 U.S.C. § 2261" by deleting "2A1.1, 2A1.2, 2A2.1,

2A2.2, 2A2.3, 2A3.1, 2A3.4, 2A4.1, 2B3.1, 2B3.2, 2K1.4" and inserting in lieu thereof "2A6.2";

in the line referenced to "18 U.S.C. § 2262" by deleting "2A1.1, 2A1.2, 2A2.1, 2A2.2, 2A2.3, 2A3.1, 2A3.4, 2A4.1, 2B3.1, 2B3.2, 2K1.4" and inserting in lieu thereof "2A6.2";

in the line referenced to "21 U.S.C. § 959" by inserting ", 2D1.11" immediately after "2D1.1".

in the line referenced to "49 U.S.C. § 121" by inserting "(for offenses committed prior to July 5, 1994)" immediately after "2F1.1";

in the line referenced to "49 U.S.C. § 1809(b)" by inserting "(for offenses committed prior to July 5, 1994)" immediately after "2Q1.2";

in the line referenced to "49 U.S.C. App. § 1687(g)" by inserting "(for offenses committed prior to July 5, 1994)" immediately after "2B1.3"; and

by deleting "49 U.S.C. § 149042B4.1".

The Commentary to §2G2.1 captioned "Statutory Provisions" is amended by deleting "2258(a), (b)" and inserting in lieu thereof "2260".

The Commentary to §2G2.2 captioned "Statutory Provisions" is amended by deleting "2258(a), (b)" and inserting in lieu thereof "2260".

Section 2K2.1(a)(3) is amended by inserting "felony" before "prior".

Reason for Amendment: This amendment makes Appendix A (Statutory Index) more comprehensive. This amendment adds references for additional offenses, including offenses created by recently enacted legislation. In addition, this amendment revises Appendix A to conform to the revision of existing statutes and to reflect the codification of Title 49, United States Code. This amendment also corrects clerical errors in §§2G2.1 and 2G2.2.

Finally, this amendment corrects a clerical error in §2K2.1(a)(3), as amended by amendment 522, effective November 1, 1995. During the execution of that amendment, which equalized offense levels for semiautomatic assault weapon possession with machinegun possession, the word "felony" was inadvertently omitted from the phrase "prior conviction" in subsection (a)(3).