United States Sentencing Commission.
Notice of submission to Congress of amendments to the sentencing guidelines effective November 1, 2013.
Pursuant to its authority under 28 U.S.C. 994(p), the Commission has promulgated amendments to the sentencing guidelines, policy statements, commentary, and statutory index. This notice sets forth the amendments and the reason for each amendment.
The Commission has specified an effective date of November 1, 2013, for the amendments set forth in this notice.
Jeanne Doherty, Public Affairs Officer, 202–502–4502. The amendments set forth in this notice also may be accessed through the Commission's Web site at
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 sentencing 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 generally submits guideline amendments to Congress pursuant to 28 U.S.C. 994(p) not later than the first day of May each year. Absent action of Congress to the contrary, submitted amendments become effective by operation of law on the date specified by the Commission (generally November 1 of the year in which the amendments are submitted to Congress).
Notice of proposed amendments was published in the
28 U.S.C. 994(a), (o), and (p); USSC Rules of Practice and Procedure 4.1.
1.
“(13) (Apply the greater) If the offense involved misappropriation of a trade secret and the defendant knew or intended—
(A) that the trade secret would be transported or transmitted out of the United States, increase by 2 levels; or
(B) that the offense would benefit a foreign government, foreign instrumentality, or foreign agent, increase by 4 levels.
If subparagraph (B) applies and the resulting offense level is less than level 14, increase to level 14.”; and in paragraph (16) (as so renumbered) by striking “(b)(15)(B)” and inserting “(b)(16)(B)”.
The Commentary to § 2B1.1 captioned “Application Notes” is amended in
The Commentary to § 2B1.1 captioned “Background” is amended by striking “(b)(6)”, “(b)(8)”, “(b)(14)(B)”, “(b)(15)(A)”, “(b)(15)(B)(i)”, “(b)(16)”, “(b)(17)”, and “(b)(17)(B)” and inserting “(b)(5)”, “(b)(7)”, “(b)(15)(B)”, “(b)(16)(A)”, “(b)(16)(B)(i)”, “(b)(17)”, “(b)(18)”, and “(b)(18)(B)”, respectively; and by inserting before the paragraph that begins “Subsection (b)(15)(B)” (as so amended) the following:
“Subsection (b)(13) implements the directive in section 3 of Public Law 112–269.”.
Section 3(a) of the Act directs the Commission to “review and, if appropriate, amend” the guidelines “applicable to persons convicted of offenses relating to the transmission or attempted transmission of a stolen trade secret outside of the United States or economic espionage, in order to reflect the intent of Congress that penalties for such offenses under the Federal sentencing guidelines and policy statements appropriately reflect the seriousness of these offenses, account for the potential and actual harm caused by these offenses, and provide adequate deterrence against such offenses.” Section 3(b) of the Act states that, in carrying out the directive, the Commission shall consider, among other things, whether the guidelines adequately address the simple misappropriation of a trade secret; the transmission or attempted transmission of a stolen trade secret outside of the United States; and the transmission or attempted transmission of a stolen trade secret outside of the United States that is committed or attempted to be committed for the benefit of a foreign government, foreign instrumentality, or foreign agent.
The offenses described in the directive may be prosecuted under 18 U.S.C. § 1831 (Economic espionage), which requires that the defendant specifically intend or know that the offense “will benefit any foreign government, foreign instrumentality, or foreign agent,” and 18 U.S.C. § 1832 (Theft of trade secrets), which does not require such specific intent or knowledge. The statutory maximum terms of imprisonment are 15 years for a section 1831 offense and 10 years for a section 1832 offense. Both offenses are referenced in Appendix A (Statutory Index) to § 2B1.1 (Theft, Property Destruction, and Fraud).
In response to the directive, the amendment revises the existing specific offense characteristic at § 2B1.1(b)(5), which provides an enhancement of two levels “[i]f the offense involved misappropriation of a trade secret and the defendant knew or intended that the offense would benefit a foreign government, foreign instrumentality, or foreign agent,” in two ways. First, it broadens the scope of the enhancement to provide a 2-level increase for trade secret offenses in which the defendant knew or intended that the trade secret would be transported or transmitted out of the United States. Second, it increases the severity of the enhancement to provide a 4-level enhancement and a minimum offense level of 14 for trade secret offenses in which the defendant knew or intended that the offense would benefit a foreign government, foreign instrumentality, or foreign agent. The enhancement also is redesignated as subsection (b)(13).
In responding to the directive, the Commission consulted with individuals or groups representing law enforcement, owners of trade secrets, victims of economic espionage offenses, the United States Department of Justice, the United States Department of Homeland Security, the United States Department of State, the Office of the United States Trade Representative, the Federal Public and Community Defenders, and standing advisory groups, among others. The Commission also considered relevant data and literature.
The Commission received public comment and testimony that the transmission of stolen trade secrets outside of the United States creates significant obstacles to effective investigation and prosecution and causes both increased harm to victims and more general harms to the nation. With respect to the victim, civil remedies may not be readily available or effective, and the transmission of a stolen trade secret outside of the United States substantially increases the risk that the trade secret will be exploited by a foreign competitor. In contrast, the simple movement of a stolen trade secret within a domestic multinational company (
The Commission also received public comment and testimony that cases involving economic espionage (
Consistent with the directive, the Commission also considered whether the guidelines appropriately account for the simple misappropriation of a trade secret. The Commission determined that such offenses are adequately accounted for by existing provisions in the
2.
“(8) (Apply the greater) If—
(A) the offense involved conduct described in 18 U.S.C. § 670, increase by 2 levels; or
(B) the offense involved conduct described in 18 U.S.C. § 670, and the defendant was employed by, or was an agent of, an organization in the supply chain for the pre-retail medical product, increase by 4 levels.”;
The Commentary to § 2B1.1 captioned “Application Notes” is amended in Note 1 by inserting after the paragraph that begins “ `Personal information' means” the following:
“ `Pre-retail medical product' has the meaning given that term in 18 U.S.C. § 670(e).”; and by inserting after the paragraph that begins “ `Publicly traded company' means” the following:
“ `Supply chain' has the meaning given that term in 18 U.S.C. § 670(e).”; in Note 3(F)(i) by striking “Note 9(A)” and inserting “Note 10(A)”; and by renumbering Notes 7 through 19 as 8 through 20; by inserting after Note 6 the following:
“7.
The Commentary to § 2B1.1 captioned “Background” is amended by inserting before the paragraph that begins “Subsection (b)(9)(D)” the following:
“Subsection (b)(8) implements the directive to the Commission in section 7 of Public Law 112–186.”.
However, if § 2B1.1(b) already contains a paragraph (8) because the renumbering of paragraphs by Amendment 1 of this document has not taken effect, renumber the new paragraph inserted into § 2B1.1(b) as paragraph (8A) rather than paragraph (8), and revise the Commentary so that the new Note 7 inserted into the Application Notes and the new paragraph inserted into the Background refer to subsection (b)(8A) rather than subsection (b)(8).
Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. § 669 the following:
“18 U.S.C. § 670 2B1.1”.
The new offense at section 670 makes it unlawful for any person in (or using any means or facility of) interstate or foreign commerce to—
(1) embezzle, steal, or by fraud or deception obtain, or knowingly and unlawfully take, carry away, or conceal a pre-retail medical product;
(2) knowingly and falsely make, alter, forge, or counterfeit the labeling or documentation (including documentation relating to origination or shipping) of a pre-retail medical product;
(3) knowingly possess, transport, or traffic in a pre-retail medical product that was involved in a violation of paragraph (1) or (2);
(4) with intent to defraud, buy, or otherwise obtain, a pre-retail medical product that has expired or been stolen;
(5) with intent to defraud, sell, or distribute, a pre-retail medical product that is expired or stolen; or
(6) attempt or conspire to violate any of paragraphs (1) through (5).
The offense generally carries a statutory maximum term of imprisonment of three years. If the offense is an “aggravated offense,” however, higher statutory maximum terms of imprisonment are provided. The offense is an “aggravated offense” if—
(1) the defendant is employed by, or is an agent of, an organization in the supply chain for the pre-retail medical product; or
(2) the violation—
(A) involves the use of violence, force, or a threat of violence or force;
(B) involves the use of a deadly weapon;
(C) results in serious bodily injury or death, including serious bodily injury or death resulting from the use of the medical product involved; or
(D) is subsequent to a prior conviction for an offense under section 670.
Specifically, the higher statutory maximum terms of imprisonment are:
(1) Five years, if—
(A) the defendant is employed by, or is an agent of, an organization in the supply chain for the pre-retail medical product; or
(B) the violation (i) involves the use of violence, force, or a threat of violence or force, (ii) involves the use of a deadly weapon, or (iii) is subsequent to a prior conviction for an offense under section 670.
(2) 15 years, if the value of the medical products involved in the offense is $5,000 or greater.
(3) 20 years, if both (1) and (2) apply.
(4) 30 years, if the offense results in serious bodily injury or death, including serious bodily injury or death resulting from the use of the medical product involved.
The amendment amends Appendix A (Statutory Index) to reference the new offense at 18 U.S.C. § 670 to § 2B1.1 (Theft, Property Destruction, and Fraud). The Commission concluded that § 2B1.1 is the appropriate guideline because the elements of the new offense include theft or fraud.
Section 7 of the Act directs the Commission to “review and, if appropriate, amend” the federal sentencing guidelines and policy statements applicable to the new offense and the related offenses “to reflect the intent of Congress that penalties for such offenses be sufficient to deter and punish such offenses, and appropriately account for the actual harm to the public from these offenses.” The amendment amends § 2B1.1 to address offenses involving pre-retail medical products in two ways.
First, the amendment adds a new specific offense characteristic at § 2B1.1(b)(8) that provides a two-pronged enhancement with an instruction to apply the greater. Prong (A) provides a 2-level enhancement if the offense involved conduct described in 18 U.S.C. § 670. Prong (B) provides a 4-level enhancement if the offense involved conduct described in 18 U.S.C. § 670 and the defendant was employed by, or an agent of, an organization in the supply chain for the pre-retail product. Accompanying this new specific offense characteristic is new Commentary providing that, if prong (B) applies, “do not apply an adjustment under § 3B1.3 (Abuse of Position of Trust or Use of Special Skill).”
Based on public comment, testimony and sentencing data, the Commission concluded that an enhancement differentiating fraud and theft offenses involving medical products from those involving other products is warranted by the additional risk such offenses pose to public health and safety. In addition, such offenses undermine the public's confidence in the medical regulatory and distribution system. The Commission also concluded that the risks and harms it identified would be present in any theft or fraud offense involving a pre-retail medical product, regardless of the offense of conviction. Therefore application of the new specific offense characteristic is not limited to offenses charged under 18 U.S.C. § 670.
The amendment provides a 4-level enhancement for defendants who commit such offenses while employed in the supply chain for the pre-retail medical product. Such defendants are subject to an increased statutory maximum and the Commission determined that a heightened enhancement should apply to reflect the likelihood that the defendant's position in the supply chain facilitated the commission or concealment of the offense. Defendants who receive the 4-level enhancement are not subject to the adjustment at § 3B1.3 because the new enhancement adequately accounts for the concerns covered by § 3B1.3. The Commission determined that existing specific offense characteristics generally account for other aggravating factors included in the Act, such as loss, use or threat of force, risk of death or serious bodily injury, and weapon involvement, and therefore additional new specific offense characteristics are not necessary.
Second, it amends the upward departure provisions in the Commentary to § 2B1.1 at Application Note 19(A) to provide—as an example of a case in which an upward departure would be warranted—a case “involving conduct described in 18 U.S.C. § 670 if the offense resulted in serious bodily injury or death, including serious bodily injury or death resulting from the use of the pre-retail medical product.” Public comment and testimony indicated that § 2B1.1 may not adequately account for the harm created by theft or fraud offenses involving pre-retail medical products when such serious bodily injury or death actually occurs as a result of the offense. For example, some pre-retail medical products are stolen as part of a scheme to re-sell them into the supply chain, but if the products have not been properly stored in the interim, their subsequent use can seriously injure the individual consumers who buy and use them. Thus, the amendment expands the scope of the existing upward departure provision to address such harms and to clarify that an upward departure is appropriate in such cases not only if serious bodily injury or death occurred during the theft or fraud, but also if such serious bodily injury or death resulted from the victim's use of a pre-retail medical product that had previously been obtained by theft or fraud.
Finally, the proposed amendment amends the Commentary to § 2B1.1 to provide relevant definitions and make other conforming changes.
3.
“(5) If the offense involved a counterfeit drug, increase by 2 levels.”; and by inserting after paragraph (6) (as so renumbered) the following:
“(7) If the offense involved a counterfeit military good or service the use, malfunction, or failure of which is likely to cause (A) the disclosure of classified information; (B) impairment of combat operations; or (C) other significant harm to (i) a combat operation, (ii) a member of the Armed Forces, or (iii) national security, increase by 2 levels. If the resulting offense level is less than level 14, increase to level 14.”.
The Commentary to § 2B5.3 captioned “Application Notes” is amended in Note 1 by inserting after the paragraph that begins “'Commercial advantage” the following:
“'Counterfeit drug' has the meaning given that term in 18 U.S.C. § 2320(f)(6).
“'Counterfeit military good or service' has the meaning given that term in 18 U.S.C. § 2320(f)(4).”; by renumbering Notes 3 and 4 as 4 and 5; by inserting after Note 2 the following:
“3.
“(D) The offense resulted in death or serious bodily injury.”.
The Commentary to § 2B5.3 captioned “Background” is amended by inserting after the paragraph that begins “Subsection (b)(1)” the following:
“ Subsection (b)(5) implements the directive to the Commission in section 717 of Public Law 112B144.”.
Appendix A (Statutory Index) is amended by striking the line referenced to 21 U.S.C. § 333(b) and inserting the following:
“21 U.S.C. § 333(b)(1)–(6) 2N2.1
21 U.S.C. § 333(b)(7) 2N1.1”.
First, the amendment responds to changes to section 2320 made by the National Defense Authorization Act for Fiscal Year 2012, Public Law 112–81 (enacted December 31, 2011) (the “NDAA”). In general, section 2320 prohibits trafficking in goods or services using a counterfeit mark, and provides a statutory maximum term of imprisonment of 10 years, or 20 years for a second or subsequent offense. If the offender knowingly or recklessly causes or attempts to cause serious bodily injury or death, the statutory maximum is increased to 20 years or any term of years or life, respectively. Offenses under section 2320 are referenced in Appendix A (Statutory Index) to § 2B5.3 (Criminal Infringement of Copyright or Trademark).
Section 818 of the NDAA amended section 2320 to add a new subsection (a)(3) that prohibits trafficking in counterfeit military goods and services, the use, malfunction, or failure of which is likely to cause serious bodily injury or death, the disclosure of classified information, impairment of combat operations, or other significant harm to a combat operation, a member of the Armed Forces, or national security. A “counterfeit military good or service” is defined as a good or service that uses a counterfeit mark and that (A) is falsely identified or labeled as meeting military specifications, or (B) is intended for use in a military or national security application.
The legislative history of the NDAA indicates that Congress amended section 2320 because of concerns about national security and the protection of United States servicemen and women. After reviewing the legislative history, public comment, testimony, and data, the Commission determined that an offense involving counterfeit military goods and services that jeopardizes the safety of United States troops and compromises mission effectiveness warrants increased punishment.
Specifically, the amendment addresses offenses involving counterfeit military goods and services by amending § 2B5.3 to create a new specific offense characteristic at subsection (b)(7). Subsection (b)(7) provides a 2-level enhancement and a minimum offense level of 14 if the offense involves a counterfeit military good or service the use, malfunction, or failure of which is likely to cause the disclosure of classified information, impairment of combat operations, or other significant harm to a combat operation, a member of the Armed Forces, or to national security. The Commission set the minimum offense level at 14 so that it would be proportionate to the minimum offense level in the enhancement for “conscious or reckless risk of death or serious bodily injury” at subsection (b)(5)(A). That enhancement is moved from (b)(5)(A) to (b)(6)(A) by the amendment.
Although section 2320(a)(3) includes offenses that are likely to cause “serious bodily injury or death,” the new specific offense characteristic does not because the Commission determined that such risk of harm is adequately addressed by the existing enhancement for offenses involving the “conscious or reckless risk of death or serious bodily injury.” Consistent with that approach, the amendment includes commentary providing that the “other significant harm” specified in subsection (b)(7) does not include death or serious bodily injury and that § 2B5.3(b)(6)(A) would apply if the offense involved a counterfeit military good or service the use, malfunction, or failure of which is likely to cause serious bodily injury or death.
Second, the amendment responds to changes made by section 717 of the Food and Drug Administration Safety and Innovation Act, Public Law 112–144 (enacted July 9, 2012) (the “FDASIA”), which amended section 2320 to add a new subsection (a)(4) that prohibits trafficking in a counterfeit drug. A “counterfeit drug” is a drug, as defined by section 201 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. § 321), that uses a counterfeit mark.
Section 717 of the FDASIA also contained a directive to the Commission to “review and amend, if appropriate” the guidelines and policy statements applicable to persons convicted of an offense described in section 2320(a)(4)—
After reviewing the legislative history of the FDASIA, public comment, testimony, and data, the Commission determined that offenses involving counterfeit drugs involve a threat to public safety and undermine the public's confidence in the drug supply chain. Furthermore, unlike many other goods covered by the infringement guideline, offenses involving counterfeit drugs circumvent a regulatory scheme established to protect the health and safety of the public. Accordingly, the amendment responds to the directive by adding a new specific offense characteristic at § 2B5.3(b)(5) that provides a 2-level enhancement if the offense involves a counterfeit drug.
Third, the amendment amends the Commentary to '2B5.3 to add a new upward departure consideration if the offense resulted in death or serious bodily injury. The addition of this departure consideration recognizes the distinction between an offense involving the risk of death or serious bodily injury and one in which death or serious bodily injury actually results. Departures for these reasons are already authorized in the guidelines,
Finally, the amendment provides a statutory reference for the new offense at 21 U.S.C. 333(b)(7) created by section 716 of the FDASIA. Section 333(b)(7) applies to any person who knowingly and intentionally adulterates a drug such that the drug is adulterated under certain provisions of 21 U.S.C. § 351 and has a reasonable probability of causing serious adverse health consequences or death to humans or animals. It provides a statutory maximum term of imprisonment of 20 years.
The amendment amends Appendix A (Statutory Index) to reference offenses under section 333(b)(7) to § 2N1.1 (Tampering or Attempting to Tamper Involving Risk of Death or Bodily Injury). The Commission concluded that offenses under section 333(b)(7) are similar to tampering offenses under 18 U.S.C. § 1365 (Tampering with consumer products), which are referenced to '2N1.1. In addition, the public health harms that Congress intended to target in adulteration cases are similar to those targeted by violations of section 1365(a) and are best addressed under § 2N1.1.
4.
“3.
However, the court shall not account for payments to third parties made in a manner that encouraged or facilitated a separate violation of law (
The burden is on the defendant to establish any such credit, deduction, or exemption by a preponderance of the evidence.
“4.
“5.
“6.
A `credit claimed against tax' is an item that reduces the amount of tax directly. In contrast, a `deduction' is an item that reduces the amount of taxable income. `Gross income' has the same meaning as it has in 26 U.S.C. § 61 and 26 CFR § 1.61.”; and in Note 7 by inserting “
The Tenth and Second Circuits have held that a sentencing court may give the defendant credit for a legitimate but unclaimed deduction. These circuit courts generally reason that, while a district court need not speculate about unclaimed deductions if the defendant offers weak support, nothing in the guidelines prohibits a sentencing court from considering evidence of unclaimed deductions where a defendant offers convincing proof.
Six other circuit courts—the Fourth, Fifth, Seventh, Eighth, Ninth, and Eleventh—have reached the opposite conclusion, directly or indirectly holding that a court may not consider unclaimed deductions to reduce the tax loss. These circuit courts generally reason that the “object of the [defendant's] offense” is established by the amount stated on the fraudulent return, and that courts should not be required to reconstruct the defendant's return based on speculation regarding the many hypothetical ways the defendant could have completed the return.
The amendment resolves the conflict by amending the Commentary to § 2T1.1 to establish a new application note regarding the consideration of unclaimed credits, deductions, or exemptions in calculating a defendant's tax loss. This amendment reflects the Commission's view that consideration of legitimate unclaimed credits, deductions, or exemptions, subject to certain limitations and exclusions, is most consistent with existing provisions regarding the calculation of tax loss in § 2T1.1.
The new application note first provides that courts should always account for the standard deduction and personal and dependent exemptions to which the defendant was entitled. The Commission received public comment and testimony that such deductions and exemptions are commonly considered and accepted by the government during the course of its investigation and during the course of plea negotiations. Consistent with this standard practice, the Commission determined that
The new application note further provides that courts should also account for any other previously unclaimed credit, deduction, or exemption that is needed to ensure a reasonable estimate of the tax loss, but only to the extent certain conditions are met. First, the credit, deduction, or exemption must be one that was related to the tax offense and could have been claimed at the time the tax offense was committed. This condition reflects the Commission's determination that a defendant should not be permitted to invoke unforeseen or after-the-fact changes or characterizations—such as offsetting losses that occur before or after the relevant tax year or substituting a more advantageous depreciation method or filing status—to lower the tax loss. To permit a defendant to optimize his return in this manner would unjustly reward defendants, and could require unjustifiable speculation and complexity at the sentencing hearing.
Second, the otherwise unclaimed credit, deduction, or exemption must be reasonably and practicably ascertainable. Consistent with the instruction in Application Note 1, this condition reaffirms the Commission's position that sentencing courts need only make a reasonable estimate of tax loss. In this regard, the Commission recognized that consideration of some unclaimed credits, deductions, or exemptions could require sentencing courts to make unnecessarily complex tax determinations, and therefore concluded that limiting consideration of unclaimed credits, deductions, or exemptions to those that are reasonably and practicably ascertainable is appropriate.
Third, the defendant must present information to support the credit, deduction, or exemption sufficiently in advance of sentencing to provide an adequate opportunity to evaluate whether it has sufficient indicia of reliability to support its probable accuracy. Consistent with the principles set forth in § 6A1.3 (Resolution of Disputed Factors) (Policy Statement), this condition ensures that the parties have an adequate opportunity to present information relevant to the court's consideration of any unclaimed credits, deductions, or exemptions raised at sentencing.
In addition, the new application note provides that certain categories of credits, deductions, or exemptions shall not be considered by the court in any case. In particular, “the court shall not account for payments to third parties made in a manner that encouraged or facilitated a separate violation of law (
Finally, the application note makes clear that the burden is on the defendant to establish any credit, deduction, or exemption permitted under this new application note by a preponderance of the evidence, which is also consistent with the commentary in § 6A1.3.
5.
“If the government files such a motion, and the court in deciding whether to grant the motion also determines that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, the court should grant the motion.”.
The Commentary to § 3E1.1 captioned “Background” is amended in the paragraph that begins “Section 401(g)” by striking “the last paragraph” and inserting “the first sentence of the second paragraph”.
(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.
The first circuit conflict involves the government's discretion under subsection (b) and, in particular, whether the government may withhold a motion based on an interest not identified in § 3E1.1, such as the defendant's refusal to waive his right to appeal. The second conflict involves the court's discretion under subsection (b) and, in particular, whether the court may decline to apply the third level of reduction when the government has moved for it.
These circuit conflicts are unusual in that they involve guideline and commentary provisions that Congress directly amended.
The first circuit conflict involves the government's discretion under subsection (b) and, in particular, whether the government may withhold a motion based on an interest not identified in § 3E1.1, such as the defendant's refusal to waive his right to appeal.
Several circuits have held that a defendant's refusal to sign an appellate waiver is a legitimate reason for the government to withhold a § 3E1.1(b) motion.
In contrast, the Fourth Circuit has held that a defendant's refusal to sign an appellate waiver is not a legitimate reason for the government to withhold a § 3E1.1(b) motion.
The PROTECT Act added Commentary to § 3E1.1 stating that “[b]ecause the Government is in the best position to determine whether the defendant has assisted authorities in a manner that avoids preparing for trial, an adjustment under subsection (b) may only be granted upon a formal motion by the Government at the time of sentencing.”
In its study of the PROTECT Act, the Commission could discern no congressional intent to allow decisions under § 3E1.1 to be based on interests not identified in § 3E1.1. Furthermore, consistent with
The second conflict involves the court's discretion under subsection (b) and, in particular, whether the court may decline to apply the third level of reduction when the government has moved for it.
The Seventh Circuit has held that if the government makes the motion (and the other two requirements of subsection (b) are met,
In contrast, the Fifth Circuit has held that the district court retains discretion to deny the motion.
This amendment amends the Commentary to § 3E1.1 by adding the following statement: “If the government files such a motion, and the court in deciding whether to grant the motion also determines that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, the court should grant the motion.”
In its study of the PROTECT Act, the Commission could discern no congressional intent to take away from the court its responsibility under § 3E1.1 to make its own determination of whether the conditions were met. In particular, both the language added to the Commentary by the PROTECT Act and the legislative history of the PROTECT Act speak in terms of allowing the court discretion to “grant” the third level of reduction.
Finally, and as mentioned above, the Commission in its study of the PROTECT Act could discern no congressional intent to allow decisions under § 3E1.1 to be based on interests not identified in § 3E1.1. For that reason, this amendment indicates that, if the government has filed the motion and the court also determines that the circumstances identified in § 3E1.1 are present, the court should grant the motion.
6.
The discretion recognized in
The amendment amends the background commentary to § 5G1.3 to include a statement that, in addition to the discretion provided by section 3584, federal courts also generally have discretion under
7.
Section 2B2.3(b) is amended by striking paragraph (1) and inserting the following:
“(1) (Apply the greater) If—
(A) the trespass occurred (i) at a secure government facility; (ii) at a nuclear energy facility; (iii) on a vessel or aircraft of the United States; (iv) in a secure area of an airport or a seaport; (v) at a residence; (vi) at Arlington National Cemetery or a cemetery under the control of the National Cemetery Administration; (vii) at any restricted building or grounds; or (viii) on a computer system used (I) to maintain or operate a critical infrastructure; or (II) by or for a government entity in furtherance of the administration of justice, national defense, or national security, increase by 2 levels; or
(B) the trespass occurred at the White House or its grounds, or the Vice President's official residence or its grounds, increase by 4 levels.”.
The Commentary to § 2B2.3 captioned “Application Notes” is amended in Note 1 by inserting after the paragraph that begins “ `Protected computer' means” the following:
“ `Restricted building or grounds' has the meaning given that term in 18 U.S.C. § 1752.”; and in Note 2 by inserting “
The Notes to the Drug Quantity Table in § 2D1.1(c) are amended in each of Notes (H) and (I) by striking “1308.11(d)(30)” and inserting “1308.11(d)(31)”.
The Commentary to § 2J1.2 captioned “Application Notes” is amended in Note 2(A) by striking “Chapter Three, Part C” in the heading and inserting “§ 3C1.1”; and by striking “Chapter Three, Part C (Obstruction and Related Adjustments)” and inserting “§ 3C1.1 (Obstructing or Impeding the Administration of Justice)”.
The Commentary to § 2J1.3 captioned “Application Notes” is amended in Note 2 by striking “Chapter Three, Part C (Obstruction and Related Adjustments)” and inserting “§ 3C1.1 (Obstructing or Impeding the Administration of Justice)”; and in Note 3 by striking “Chapter Three, Part C (Obstruction and Related Adjustments)” and inserting “§ 3C1.1”.
The Commentary to § 2J1.6 captioned “Application Notes” is amended in Note 2 by striking “Chapter Three, Part C (Obstruction and Related Adjustments)” and inserting “§ 3C1.1 (Obstructing or Impeding the Administration of Justice)”.
The Commentary to § 2J1.9 captioned “Application Notes” is amended in Note 1 by striking “Chapter Three, Part C (Obstruction and Related Adjustments)” and inserting “§ 3C1.1 (Obstructing or Impeding the Administration of Justice)”; and in Note 2 by striking “Chapter Three, Part C (Obstruction and Related Adjustments)” and inserting “§ 3C1.1”.
The Commentary to § 4A1.1 captioned “Application Notes” is amended in each of Notes 2 and 3 by striking “court martial” and inserting “court-martial”.
Section 4A1.2(g) is amended by striking “court martial” both places it appears and inserting “court-martial”.
Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. § 38 the following:
“18 U.S.C. § 39A 2A5.2”; in the line referenced to 18 U.S.C. § 554 by inserting “2M5.1,” after “2B1.5,”; by inserting after the line referenced to 18 U.S.C. § 1513 the following:
“18 U.S.C. § 1514(c) 2J1.2”; by inserting after the line referenced to 18 U.S.C. § 1751(e) the following:
“18 U.S.C. § 1752 2A2.4, 2B2.3”; and by inserting after the line referenced to 19 U.S.C. § 1586(e) the following:
“19 U.S.C. § 1590(d)(1) 2T3.1
19 U.S.C. § 1590(d)(2) 2D1.1”.
First, the amendment responds to Section 311 of the FAA Modernization and Reform Act of 2012, Public Law 112–95 (enacted February 14, 2012), which established a new criminal offense at 18 U.S.C. 39A (Aiming a laser pointer at an aircraft). The offense applies to whoever knowingly aims the beam of a laser pointer at an aircraft in the special aircraft jurisdiction of the United States or at the flight path of such an aircraft. The statutory maximum term of imprisonment is five years.
The amendment amends Appendix A (Statutory Index) to reference section 39A offenses to § 2A5.2 (Interference with Flight Crew Member or Flight Attendant; Interference with Dispatch, Navigation, Operation, or Maintenance of Mass Transportation Vehicle). Section 2A5.2 is the most analogous guideline because the offense involves interference with an aircraft in flight.
Second, the amendment responds to section 3(a) of the Child Protection Act of 2012, Public Law 112–206 (enacted December 7, 2012), which established a new offense at 18 U.S.C. 1514(c) that makes it a criminal offense to knowingly and intentionally violate or attempt to violate an order issued under section 1514 (Civil action to restrain harassment of a victim or witness). The new offense has a statutory maximum term of imprisonment of five years.
The amendment amends Appendix A (Statutory Index) to reference section 1514(c) offenses to § 2J1.2 (Obstruction of Justice). Section 2J1.2 is the most analogous guideline because the offense involves interference with judicial proceedings.
Third, the amendment responds to the Federal Restricted Buildings and Grounds Improvement Act of 2011, Public Law 112–98 (enacted March 8, 2012), which amended the criminal offense at 18 U.S.C. § 1752 (Restricted building or grounds). As so amended, the statute defines “restricted buildings or grounds” to mean any restricted area (A) of the White House or its grounds, or the Vice President's official residence or its grounds; (B) of a building or grounds where the President or other person protected by the United States Secret Service is or will be temporarily visiting; or (C) of a building or grounds restricted in conjunction with an event designated as a special event of national significance. The statute makes it a crime to enter or remain; to impede or disrupt the orderly conduct of business or official functions; to obstruct or impede ingress or egress; or to engage in any physical violence against any person or property. The Act did not change the statutory maximum term of imprisonment, which is ten years if the person used or carried a deadly or dangerous weapon or firearm or if the offense results in significant bodily injury, and one year in any other case.
The amendment amends Appendix A (Statutory Index) to reference section 1752 offenses to § 2A2.4 (Obstructing or Impeding Officers) and § 2B2.3 (Trespass). These guidelines are most analogous because the elements of offenses under section 1752 involve either trespass at certain locations (
The amendment also amends § 2B2.3(b)(1) to ensure that a trespass under section 1752 provides a 4-level enhancement if the trespass occurred at the White House or the Vice President's official residence, or a 2-level enhancement if the trespass occurred at any other location permanently or temporarily protected by the Secret Service. Section 2B2.3(b)(1) provides a 2-level enhancement if the trespass occurred at locations that involve a significant federal interest, such as nuclear facilities, airports, and seaports. A trespass at a location protected by the Secret Service is no less serious than a trespass at other locations that involve a significant federal interest and warrants an equivalent enhancement of 2 levels. Section 2B2.3(b)(1) also provides a 2-level enhancement if the trespass occurred at a residence. A trespass at the residence of the President or the Vice President is more serious and poses a greater risk of harm than a trespass at an ordinary residence and warrants an enhancement of 4 levels.
Fourth, the amendment responds to the Ultralight Aircraft Smuggling Prevention Act of 2012, Public Law 112–93 (enacted February 10, 2012), which amended the criminal offense at 19 U.S.C. § 1590 (Aviation smuggling) to clarify that the term “aircraft” includes ultralight aircraft and to cover attempts and conspiracies. Section 1590 makes it unlawful for the pilot of an aircraft to transport merchandise, or for any individual on board any aircraft to possess merchandise, knowing that the merchandise will be introduced into the United States contrary to law. It is also unlawful for a person to transfer merchandise between an aircraft and a vessel on the high seas or in the customs waters of the United States unlawfully. The Act did not change the statutory maximum terms of imprisonment, which are 20 years if any of the merchandise involved was a controlled substance,
Fifth, the amendment responds to an application issue that may arise in cases in which the defendant is sentenced under an offense guideline in Chapter Two, Part J (Offenses Involving the Administration of Justice) and the defendant may also be subject to an adjustment under Chapter Three, Part C (Obstruction and Related Adjustments). Specifically, there are application notes in four Chapter Two, Part J guidelines that, it has been argued, preclude the court from applying adjustments in Chapter Three, Part C.
The amendment amends the relevant application notes in Chapter Two, Part J (
Sixth, the amendment broadens the range of guidelines to which export offenses under 18 U.S.C. § 554 (Smuggling goods from the United States) are referenced. Section 554 makes it unlawful to export or send from the United States (or attempt to do so) any merchandise, article, or object contrary to any law or regulation of the United States. It also makes it unlawful to receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or sale of such merchandise, article, or object, prior to exportation, knowing the same to be intended for exportation contrary to any law or regulation of the United States. Offenses under section 554 have a statutory maximum term of imprisonment of ten years, and they are referenced in Appendix A (Statutory Index) to three guidelines: §§ 2B1.5 (Theft of, Damage to, or Destruction of, Cultural Heritage Resources or Paleontological Resources; Unlawful Sale, Purchase, Exchange,
The amendment amends Appendix A (Statutory Index) to add § 2M5.1 (Evasion of Export Controls; Financial Transactions with Countries Supporting International Terrorism) to the list of guidelines to which offenses under section 554 are referenced. Not all offenses under section 554 involve munitions, cultural resources, or wildlife, so a reference to an additional guideline is warranted. For example, a section 554 offense may be based on the export of ordinary commercial goods in violation of economic sanctions or on the export of “dual-use” goods (
Finally, the amendment makes certain technical and stylistic changes to the