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[Federal Register: August 16, 2000 (Volume 65, Number 159)]
[Page 50034-50037]
From the Federal Register Online via GPO Access []



Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of (1) retroactive application of certain amendments 
submitted to Congress on May 1, 2000; (2) final policy priorities for 
amendment cycle ending May 1, 2001; and (3) request for comment on 
proposed criteria for selecting circuit conflict issues as policy 


SUMMARY: (1) Retroactive Application.--The Commission has reviewed 
amendments submitted to Congress on May 1, 2000, that may result in 
lower guideline ranges and has designated three such amendments for 
inclusion in

[[Page 50035]]

policy statement Sec. 1B1.10 (Reduction in Term of Imprisonment as a 
Result of Amended Guideline Range). See amendment following section 
designated ``Authority''.
    (2) Final Policy Priorities.--In June, 2000, the Commission 
published a notice of possible policy priorities for the amendment 
cycle ending May 1, 2001. See 65 FR 113 (June 12, 2000). After 
reviewing public comment received pursuant to this notice, the 
Commission has identified its policy priorities for the upcoming 
amendment cycle. The Commission hereby gives notice of these policy 
    (3) Criteria for selecting circuit conflict issues.--The Commission 
has developed a set of criteria to guide its work in selecting, as 
policy priorities for any given amendment cycle, issues that involve 
conflicting interpretations of guideline language among the circuit 
courts. The Commission invites comment on this set of criteria.

ADDRESSES: Send comments to: United States Sentencing Commission, One 
Columbus Circle, NE, Suite 2-500 South, Washington, DC 20002-8002, 
Attention: Public Information--Comment on Criteria.

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs 
Officer, Telephone: (202) 502-4590.

SUPPLEMENTARY INFORMATION: (1) Retroactive Application.--The United 
States Sentencing Commission is an independent commission in the 
judicial branch of the United States Government and is empowered by 28 
U.S.C. Sec. 994(a) to promulgate sentencing guidelines and policy 
statements for federal sentencing courts. Section 994 also directs the 
Commission periodically to review and revise promulgated guidelines and 
authorizes it to submit guideline amendments to the Congress not later 
than the first day of May each year. See 28 U.S.C. Secs. 994(o), (p). 
In connection with this promulgation authority, the Commission also is 
required to determine which amendments submitted to Congress may result 
in a reduced guideline range. See 28 U.S.C. Sec. 994(u); Sec. 1B1.10 
(Reduction in Term of Imprisonment as a Result of Amended Guideline 
Range). After identifying any such amendment, the Commission determines 
whether the amendment should be given retroactive effect based on 
factors such as 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. See Sec. 1B1.10, comment. These amendments are then 
included in the list of amendments in Sec. 1B1.10(c) that trigger a 
defendant's eligibility for consideration of a reduced sentence 
pursuant to 18 U.S.C. Sec. 3582(c)(2). (Inclusion of an amendment in 
Sec. 1B1.10(c) ``does not entitle a defendant to a reduced term of 
imprisonment as a matter of right.'' Sec. 1B1.10, comment. (backgr'd.))
    The Commission has analyzed the amendments submitted to Congress on 
May 1, 2000, and has designated three such amendments for inclusion in 
policy statement Sec. 1B1.10. Those amendments are as follows:
    (a) Amendment 591, which clarifies that a sentencing court must 
apply the offense guideline referenced in the Statutory Index for the 
statute of conviction unless the case falls within the limited 
``stipulation'' exception set forth in Sec. 1B1.2(a). Accordingly, in 
order for the enhanced penalties in Sec. 2D1.2 (Drug Offense Occurring 
Near Protected Locations or Involving Underage or Pregnant Individuals) 
to apply, the defendant must be convicted of an offense referenced to 
that guideline.
    (b) Amendment 599, which clarifies under what circumstances a 
defendant sentenced for a violation of 18 U.S.C. Sec. 924(c) in 
conjunction with a conviction for other offenses may receive a weapon 
enhancement contained in the guidelines for those other offenses. This 
amendment directs that no guideline weapon enhancement should be 
applied when determining the sentence for the crime of violence or drug 
trafficking offense underlying the 18 U.S.C. Sec. 924(c) conviction, 
nor for any conduct with respect to that offense for which the 
defendant is accountable under Sec. 1B1.3 (Relevant Conduct).
    (c) Amendment 606, which corrects a typographical error in the 
Chemical Quantity Table in Sec. 2D1.11 (Unlawfully Distributing, 
Importing, Exporting, or Possessing a Listed Chemical) regarding 
certain quantities of Isosafrole and Safrole by changing those 
quantities from grams to kilograms.
    (2) Final Policy Priorities.--As part of its statutory authority 
and responsibility to analyze sentencing issues, including operation of 
the federal sentencing guidelines, the Commission has identified 
certain priorities as the focus of its policy development work, 
including possible amendments to guidelines, policy statements, and 
commentary, for the amendment cycle ending May 1, 2001. While the 
Commission intends to address these priority issues, it recognizes that 
other factors, such as the enactment of legislation requiring 
Commission action, may affect the Commission's ability to complete work 
on all of the identified policy priorities by the statutory deadline of 
May 1, 2001. The Commission may address any unfinished policy 
development work from this agenda during the amendment cycle ending May 
1, 2002.
    The specific policy priorities for the amendment cycle ending May 
1, 2001, are as follows: (A) An economic crimes package, which may 
include (i) a consolidation of the theft, property destruction, and 
fraud guidelines to provide uniformity of applicable commentary and 
consistency in application; (ii) a revised loss table for the 
consolidated and related guidelines; (iii) a revised loss definition 
that is more consistent across offense types, is easier to use, and 
addresses issues raised by case law and guideline application; and (iv) 
conforming changes to other guidelines that refer to the fraud and 
theft loss tables; (B) money laundering; (C) counterfeiting of bearer 
obligations of the United States; (D) further responses to the 
Protection of Children from Sexual Predators Act of 1998, Pub. L. 105-
314; (E) firearms, with particular focus on the issue of the 
involvement of multiple firearms in an offense; (F) nuclear, chemical, 
and biological weapons, and, possibly, related national security 
issues; (G) the implementation of any crime legislation enacted during 
the second session of the 106th Congress warranting a Commission 
response; (H) the initiation of a review of the guidelines relating to 
criminal history and the computation of criminal history points under 
those guidelines; (I) the initiation of an analysis of the operation of 
the ``safety valve'' guideline, Sec. 5C1.2 (Limitation on Applicability 
of Statutory Minimum Sentences in Certain Cases); (J) other guideline 
amendments the Commission determines necessary for proper operation of 
the sentencing guideline system; and (K) the resolution of conflicts 
among the circuit courts on the following sentencing guideline issues:
    (i) Whether admissions made by the defendant during a guilty plea 
hearing, without more, can be considered ``stipulations'' under 
Sec. 1B1.2(a). Compare, e.g., United States v. Nathan, 188 F.3d 190, 
201 (3d Cir. 1999) (statements made by defendants during the factual-
basis hearing for a plea agreement do not constitute ``stipulations'' 
for the purpose of this sentencing enhancement, and a statement is a 
stipulation only if it is part of a defendant's written plea agreement 
or if both the government and the defendant explicitly agree at a 
factual-basis hearing that the facts being placed on the record are 
stipulations that might subject a defendant to

[[Page 50036]]

Sec. 1B1.2(a)), with United States v. Loos, 165 F.3d 504, 508 (7th Cir. 
1998) (the objective behind Sec. 1B1.2(a) is best answered by reading 
``stipulation'' to mean any acknowledgment by the defendant that he 
committed the acts that justify use of the more serious guideline, not 
in a formal agreement).
    (ii) Whether the four-level adjustment for the use of a dangerous 
weapon during an aggravated assault is impermissible double-counting in 
a case in which the weapon is not ``inherently dangerous.'' Compare, 
e.g., United States v. Williams, 954 F.2d 204, 205-08 (4th Cir. 1992) 
(applying the dangerous weapon enhancement under Sec. 2A2.2(b)(2)(B) 
for defendant's use of his chair as a dangerous weapon did not 
constitute impermissible double counting, even though defendant's use 
of the chair as a dangerous weapon increased his offense level twice: 
first, by triggering the application of the aggravated assault 
guidelines, and second, as the basis for the four-level enhancement), 
with United States v. Hudson, 972 F.2d 504, 506-07 (2d Cir. 1992) (if 
the use of a weapon has resulted in a higher base offense level because 
the weapon caused the crime to be classified as an aggravated assault, 
a district court is not permitted to enhance a base offense level 
pursuant to Sec. 2A2.2(b) for the use of the same non-inherently 
dangerous weapon (such as an automobile); a sentence may be enhanced 
pursuant to Sec. 2A2.2(b) if an aggravated assault is accomplished with 
an inherently dangerous weapon such as a gun).
    (iii) Whether interest due but unpaid on a loan can be included in 
the amount of victim's loss for purposes of calculating the offense 
level under Sec. 2F1.1. Compare, e.g., United States v. Sharma, 190 
F.3d 220, 228 (3d Cir. 1999) (interest due but unpaid on a fraudulently 
obtained loan is included in the amount of the victim's loss for 
purposes of calculating the offense level under Sec. 2F1.1), with 
United States v. Hoyle, 33 F.3d 415, 419 (4th Cir. 1994) (bargained-for 
interest on a fraudulently obtained student loan is not included in 
loss calculation, and the interest represented by the time-value of 
money lost by lenders should be excluded).
    (iv) Whether the offense level can be calculated using intended 
loss amounts without regard to any considerations of impossibility or 
economic reality. Compare, e.g., United States v. Robinson, 94 F.3d 
1325, 1328 (9th Cir. 1996) (intended loss is used in the offense-level 
calculation under Sec. 2F1.1 even though the actual loss is zero or 
even if the loss is not realistically possible), with United States v. 
Ensminger, 174 F.3d 1143 (10th Cir. 1999) (an intended loss under 
Sec. 2F1.1 cannot exceed the loss a defendant in fact could have 
occasioned if the defendant's fraud had been entirely successful).
    (v) Whether the fraud guideline enhancement for an offense that 
involved a misrepresentation that the defendant was acting on behalf of 
a charitable, educational, religious or political organization, or a 
government agency (Sec. 2F1.1(b)(4)(A)) applies in the absence of 
exploitative conduct. Compare, e.g., United States v. Marcum, 16 F.3d 
599 (4th Cir. 1994) (enhancement is appropriate even if the defendant 
did not misrepresent his authority to act on behalf of a particular 
organization, but rather only misrepresented that he was conducting an 
activity wholly on behalf of such organization), with United States v. 
Frazier, 53 F.3d 1105 (10th Cir. 1995) (limiting the application of 
Sec. 2F1.1(b)(4) to cases in which the defendant exploits his victim by 
claiming to have authority which in fact does not exist rather than 
using funds to which an organization was entitled for unauthorized 
    (vi) Whether a crime committed after the commission of the instant 
federal offense of felon in possession of a firearm, but for which the 
defendant is sentenced prior to sentencing on the federal charge, is 
counted as a prior felony conviction in determining the defendant's 
base offense level. Compare, e.g., United States v. Pugh, 158 F.3d 
1308, 1311 (D.C. Cir. 1998) (the guideline language is ambiguous but 
the commentary language is clear, thereby counting prior felony 
conviction that was sentenced prior to sentencing for the instant 
federal offense, even if the defendant committed the prior felony 
offense after the instant federal offense), with United States v. 
Barton, 100 F.3d 43, 46 (6th Cir. 1996) (defendant's state drug crime, 
which was committed after federal offense of being felon in possession 
of firearm, could not have been counted as prior felony conviction 
under Sec. 2K2.1(a), even though defendant was convicted and sentenced 
on state offense prior to sentencing on federal charge; only those 
convictions that occur prior to the commission of the firearm offense 
may be counted against the defendant in determining the base offense 
    (vii) Whether a mitigating role adjustment (Sec. 3B1.2) can be 
precluded automatically in a single defendant drug courier case if the 
courier's base offense level is determined solely by the quantity 
personally handled by the courier and that quantity constitutes all of 
the courier's relevant conduct. Compare, e.g., United States v. Isaza-
Zapata, 148 F.3d 236, 241 (3d. Cir. 1998) (court specifically rejects 
argument that a defendant not charged with concerted activity and whose 
base offense level corresponds only to amounts defendant personally 
handled is precluded from a Sec. 3B1.2 downward adjustment; defendant 
pleaded guilty to importing heroin and sentencing was based on amounts 
in his personal possession, but if he can meet the requirements of 
Sec. 3B1.2 he is entitled to the reduction upon appropriate proof; 
specifically disagrees with the Seventh Circuit), with United States v. 
Isienyi, 207 F.3d 390 (7th Cir. 2000) (defendant pleaded to one count 
of importing a specified quantity of heroin; defendant is ineligible 
for a mitigating role adjustment when his offense level consisted only 
of amounts he personally handled).
    (viii) Who constitutes the ``victim'' under section 3D1.2(a) in 
child pornography cases and for purposes of grouping. Compare, e.g., 
United States v. Tillmon, 195 F.3d 640, 643 (11th Cir. 1999) (for 
purposes of grouping, the victim of child pornography is the child or 
children depicted and each child constitutes a separate group, 
rejecting the concept that society at large was the victim), with 
United States v. Toler, 901 F.2d 399 (4th Cir. 1990) (society as a 
whole is the victim of child pornography trafficking offenses).
    (ix) Whether money laundering and fraud convictions should be 
grouped together for sentencing under Sec. 3D1.2. Compare, e.g., United 
States v. Cusumano, 943 F.2d 305, 313 (3d Cir. 1991), cert. denied, 502 
U.S. 1036 (1992) (affirming the district court's decision to group 
money laundering with other offenses in a case in which ``the evidence 
demonstrated that the unlawful kickbacks, the embezzlement, the 
conspiracy, the Travel Act violations and the money laundering were all 
part of one scheme to obtain money'' from an employee benefit fund), 
with United States v. Napoli, 179 F.3d 1 (2d Cir.), cert. denied, 120 
S. Ct. 1176 (1999) (fraud and money laundering harm different victims; 
the respective guidelines measure the harms differently and therefore 
the two offenses cannot be grouped).
    (x) Whether a defendant's status as a deportable alien and his 
consent to deportation is a ground for a downward departure during 
sentencing, notwithstanding the lack of a colorable defense to 
deportation. Compare, e.g., United States v. Galvez-Falconi, 174 F.3d 
255, 260 (2d Cir. 1999) (must present a colorable, non-frivolous 
defense to deportation, such that the act

[[Page 50037]]

of consenting to deportation carries with it unusual assistance to the 
administration of justice; the act of consenting to deportation, alone, 
would not constitute a circumstance that distinguishes a case as 
sufficiently atypical to warrant a downward departure), with United 
States v. Smith, 27 F.3d 649, 655 (D.C. Cir. 1994) (downward departure 
may be appropriate in a case in which the defendant's status as a 
deportable alien is likely to cause a fortuitous increase in the 
severity of his sentence).
    (xi) Whether collateral consequences that a deportable alien may 
incur, such as likelihood of deportation, ineligibility for minimum 
security facilities and absence from family in Mexico, constitute a 
basis for downward departure. Compare, e.g., United States v. Restrepo, 
999 F.2d 640, 647 (2d Cir. 1993) (erroneous to view deportation as so 
harsh as to warrant a reduction in the period of imprisonment 
prescribed by the Guidelines), with United States v. Farouil, 124 F.3d 
838, 847 (7th Cir. 1997) (district court is free to consider whether 
status as a deportable alien has resulted in unusual or exceptional 
hardship in conditions of confinement).
    (3) Criteria for Selecting Circuit Conflict Issues.--The Commission 
has developed the following set of criteria to guide its work in 
selecting, as policy priorities for any given amendment cycle, issues 
that involve conflicting interpretations of guideline language among 
the circuit courts:

Commission Policy Regarding Resolution of Guideline Circuit Conflicts

    The United States Sentencing Commission will consider the 
following non-exhaustive list of factors in deciding whether a 
particular guideline circuit conflict warrants resolution by the 
Commission: Potential defendant impact; potential impact on 
sentencing disparity; number of court decisions involved in the 
conflict and variation in holdings; and ease of resolution, both as 
a discrete issue, and in the context of other agenda matters 
scheduled for consideration during the available amendment cycle.


    The Commission has the authority and responsibility periodically 
to amend previously issued guidelines, policy statements, or 
commentary for the purpose of addressing and resolving conflicting 
interpretations of Guidelines Manual language by the Federal courts, 
including conflicts among the courts of appeals. See 28 U.S.C. 
Secs. 991(b)(1)(B), 994(o), (p); Braxton v. United States, 500 U.S. 
344 (1991). The purposes of amendments of this nature include (1) 
promoting a more uniform body of guideline-related law, (2) reducing 
unwarranted sentencing disparity, and (3) in general, achieving more 
fully the purposes of sentencing and the goals of the Sentencing 
Reform Act.
    The Commission believes that resolution of outstanding circuit 
conflicts necessitates a balanced consideration of the factors set 
forth in this policy, along with other factors that may be relevant 
to a particular issue. In applying these criteria to particular 
issues, the Commission welcomes formal and informal communications 
from members of the criminal justice system and any other interested 
persons. Because of the press of other responsibilities, the 
Commission anticipates that, in any given year, it will be able to 
address successfully only a limited number of higher priority 
conflict issues.''.

    The Commission invites public comment on these criteria, 
specifically regarding whether any additional criteria should be 

    Authority: 28 U.S.C. Sec. 994(a), (o), (p), (u); USSC Rules of 
Practice and Procedure 5.2.

Diana E. Murphy,

    Amendment: Section 1B1.10(c) is amended by striking ``and 516.'' 
and inserting ``516, 591, 599, and 606.''.
    Reason for Amendment: This amendment expands the listing in 
Sec. 1B1.10(c) to implement the directive in 28 U.S.C. Sec. 994(u) 
regarding guideline amendments that may be considered for retroactive 
application. Inclusion of an amendment in Sec. 1B1.10(c) triggers a 
defendant's eligibility for consideration of a reduced sentence 
pursuant to 18 U.S.C. Sec. 3582(c)(2), although such inclusion does not 
entitle a defendant to reduced sentence as a matter of right.

[FR Doc. 00-20780 Filed 8-15-00; 8:45 am]