Amendments to the Sentencing Guidelines (Preliminary Version)

Amendments to the

Sentencing Guidelines

(Preliminary)

April 5, 2023

This document collects the amendments to the sentencing guidelines, policy statements, and

commentary in the unofficial, “reader-friendly” form in which they were made available at

the Commission’s public meeting on April 5, 2023. As with all amendments that the

Commission has voted to promulgate but has not yet officially submitted to Congress and the

Federal Register, authority to make technical and conforming changes may be exercised and

motions to reconsider may be made. Once the amendments have been submitted to Congress

and the Federal Register, official text of the amendments as submitted will be posted on the

Commission’s website at www.ussc.gov

and will be available in a forthcoming edition of the

Federal Register. In addition, an updated “reader-friendly” version of the amendments will

be posted on the Commission's website at

www.ussc.gov.

AMENDMENTS

1. TECHNICAL

2. MISCELLANEOUS

3. FAKE PILLS

4. SEXUAL ABUSE OFFENSES

5. CRIMINAL HISTORY

6. CAREER OFFENDER

7. CRIME LEGISLATION

8. CIRCUIT CONFLICTS

9. FIREARMS OFFENSES

10. FIRST STEP ACT—DRUG OFFENSES

11. FIRST STEP ACT—REDUCTION IN TERM OF IMPRISONMENT UNDER 18 U.S.C.

§ 3582(c)(1)(A)

The Commission specified an effective date of November 1, 2023, for the

amendments listed above.

PROPOSED AMENDMENT: TECHNICAL

Synopsis of Proposed Amendment: This proposed amendment would make technical and

other non-substantive changes to the Guidelines Manual.

Part A of the proposed amendment would make technical changes to provide updated

references to certain sections in the United States Code that were redesignated in

legislation. The Frank LoBiondo Coast Guard Authorization Act of 2018, Pub. L. 115–282

(2018) (hereinafter “the Act”), among other things, established a new chapter 700 (Ports

and Waterway Safety) in subtitle VII (Security and Drug Enforcement) of title 46

(Shipping) of the United States Code. Section 401 of the Act repealed the Ports and

Waterways Safety Act of 1972, previously codified in 33 U.S.C. §§ 1221–1232b, and restated

its provisions with some revisions in the new chapter 700 of title 46, specifically at

46 U.S.C. §§ 70001–70036. Appendix A (Statutory Index) includes references to Chapter

Two guidelines for both former 33 U.S.C. §§ 1227(b) and 1232(b). Specifically, former

section 1227(b) is referenced to §§2J1.1 (Contempt) and 2J1.5 (Failure to Appear by

Defendant), while former section 1232(b) is referenced to §2A2.4 (Obstructing or Impeding

Officers). Part A of the proposed amendment would amend Appendix A to delete the

references to 33 U.S.C. §§ 1227(b) and 1232(b) and replace them with updated references to

46 U.S.C. §§ 70035(b) and 70036(b). The Act did not make substantive revisions to either of

these provisions.

Part B of the proposed amendment would make technical changes to reflect the editorial

reclassification of certain sections in the United States Code. Effective December 1, 2015,

the Office of Law Revision Counsel eliminated the Appendix to title 50 of the United States

Code and transferred the non-obsolete provisions to new chapters 49 to 57 of title 50 and to

other titles of the United States Code. To reflect the new section numbers of the reclassified

provisions, Part B of the proposed amendment would make changes to §2M4.1 (Failure to

Transactions with Countries Supporting International Terrorism), and Appendix A.

Similarly, effective September 1, 2016, the Office of Law Revision Counsel also transferred

certain provisions from Chapter 14 of title 25 to four new chapters in title 25 in order to

improve the organization of the title. To reflect these changes, Part B of the proposed

amendment would make further changes to Appendix A.

Part C of the proposed amendment would make certain technical changes to the

Commentary to §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking

(Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy).

First, Part C of the proposed amendment would amend the Drug Conversion Tables at

Application Note 8(D) and the Typical Weight Per Unit Table at Application Note 9 to

reorganize the controlled substances contained therein in alphabetical order to make the

tables more user-friendly. It would also make minor changes to the controlled substance

references to promote consistency in the use of capitalization, commas, parentheticals, and

slash symbols throughout the Drug Conversion Tables. For example, the proposed

amendment would change the reference to “Phencyclidine (actual) /PCP (actual)” to

“Phencyclidine (PCP) (actual).” Second, Part C of the proposed amendment would make

clerical changes throughout the Commentary to correct some typographical errors. Finally,

Part C of the proposed amendment would amend the Background Commentary to add a

specific reference to Amendment 808, which replaced the term “marihuana equivalency”

with the new term “converted drug weight” and changed the title of the “Drug Equivalency

Tables” to “Drug Conversion Tables.” See USSG App. C, amend. 808 (effective Nov. 1, 2018).

Part D of the proposed amendment would make technical changes to the Commentary to

§§2A4.2 (Demanding or Receiving Ransom Money), 2A6.1 (Threatening or Harassing

Communications; Hoaxes; False Liens), and 2B3.2 (Extortion by Force or Threat of Injury

or Serious Damage), and to Appendix A, to provide references to the specific applicable

provisions of 18 U.S.C. § 876.

Part E of the proposed amendment would make technical changes to the commentary of

several guidelines in Chapter Eight (Sentencing of Organizations). First, the proposed

amendment would replace the term “prior criminal adjudication,” as found and defined in

Application Note 3(G) of §8A1.2 (Application Instructions ― Organizations), with “criminal

adjudication” to better reflect how that term is used throughout Chapter Eight. In addition,

the proposed amendment would make conforming changes to the Commentary to §8C2.5

(Culpability Score) to account for the new term. Part E of the proposed amendment would

also make changes to the Commentary to §8C3.2 (Payment of the Fine ― Organizations).

Section 207 of the Mandatory Victims Restitution Act of 1996, Pub. L. 104–132 (1996),

amended 18 U.S.C. § 3572(d) to eliminate the requirement that if the court permits

something other than the immediate payment of a fine or other monetary payment, the

period for payment shall not exceed five years. Part E of the proposed amendment would

revise Application Note 1 of §8C3.2 to reflect the current language of 18 U.S.C. § 3572(d) by

providing that if the court permits other than immediate payment of a fine or other

monetary payment, the period provided for payment shall be the shortest time in which full

payment can reasonably be made.

Part F of the proposed amendment would make clerical changes to correct typographical

errors in: §1B1.1 (Application Instructions); §1B1.3 (Relevant Conduct (Factors that

Determine the Guideline Range)); §1B1.4 (Information to be Used in Imposing Sentence

(Selecting a Point Within the Guideline Range or Departing from the Guidelines)); §1B1.10

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

Statement)); §2D2.3 (Operating or Directing the Operation of a Common Carrier Under the

Influence of Alcohol or Drugs); §2G2.1 (Sexually Exploiting a Minor by Production of

Sexually Explicit Visual or Printed Material; Custodian Permitting Minor to Engage in

Sexually Explicit Conduct; Advertisement for Minors to Engage in Production); §2H3.1

(Interception of Communications; Eavesdropping; Disclosure of Certain Private or

Protected Information); §2K2.1 (Unlawful Receipt, Possession, or Transportation of

Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition);

§2M1.1 (Treason); §2T1.1 (Tax Evasion; Willful Failure to File Return, Supply Information,

or Pay Tax; Fraudulent or False Returns, Statements, or Other Documents); the

Introductory Commentary to Chapter Two, Part T, Subpart 2 (Alcohol and Tobacco Taxes);

the Introductory Commentary to Chapter Two, Part T, Subpart 3 (Customs Taxes); the

Introductory Commentary to Chapter Three, Part A (Victim-Related Adjustments); §3A1.1

(Hate Crime Motivation or Vulnerable Victim); the Introductory Commentary to Chapter

Three, Part B (Role in the Offense); §3C1.1 (Obstructing or Impeding the Administration of

Justice); the Introductory Commentary to Chapter Three, Part D (Multiple Counts); §3D1.1

(Procedure for Determining Offense Level on Multiple Counts); §3D1.2 (Groups of Closely

Related Counts); §3D1.3 (Offense Level Applicable to Each Group of Closely Related

Counts); §3D1.4 (Determining the Combined Offense Level); §4A1.3 (Departures Based on

Inadequacy of Criminal History Category (Policy Statement)); §4B1.1 (Career Offender);

§5C1.1 (Imposition of a Term of Imprisonment); §5E1.1 (Restitution); §5E1.3 (Special

Assessments); §5E1.4 (Forfeiture); the Introductory Commentary to Chapter Five, Part H

(Specific Offender Characteristics); the Introductory Commentary to Chapter Six, Part A

(Sentencing Procedures); Chapter Seven, Part A (Introduction to Chapter Seven); §8B1.1

(Restitution ― Organizations); §8B2.1 (Effective Compliance and Ethics Program); §8C3.3

(Reduction of Fine Based on Inability to Pay); and §8E1.1 (Special Assessments ―

Organizations).

Part G of the proposed amendments would also make clerical changes to the Commentary

to §§1B1.11 (Use of Guidelines Manual in Effect on Date of Sentencing (Policy Statement))

and 5G1.3 (Imposition of a Sentence on a Defendant Subject to an Undischarged Term of

Imprisonment or Anticipated State Term of Imprisonment), to update the citation of

Supreme Court cases. In addition, Part G of the proposed amendment would amend (1) the

Commentary to §2K2.4 (Use of Firearm, Armor-Piercing Ammunition, or Explosive During

or in Relation to Certain Crimes) to add a missing reference to 18 U.S.C.§ 844(o); (2) the

Commentary to §2M6.1 (Unlawful Activity Involving Nuclear Material, Weapons, or

Facilities, Biological Agents, Toxins, or Delivery Systems, Chemical Weapons, or Other

Weapons Of Mass Destruction; Attempt or Conspiracy), to delete the definitions of two

terms that are not currently used in the guideline; (3) the Commentary to §§2M5.3

(Providing Material Support or Resources to Designated Foreign Terrorist Organizations or

Specially Designated Global Terrorists, or For a Terrorist Purpose) and 2T1.1 (Tax Evasion;

Willful Failure to File Return, Supply Information, or Pay Tax; Fraudulent or False

Returns, Statements, or Other Documents), to correct references to the Code of Federal

Regulations; and (4) the Commentary to §3A1.2 (Official Victim), to add missing content in

Application Note 3.

Proposed Amendment:

(A) Frank LoBiondo Coast Guard Authorization Act of 2018

APPENDIX A

STATUTORY INDEX

* * *

33 U.S.C. § 1227(b) 2J1.1, 2J1.5

33 U.S.C. § 1232(b)(2) 2A2.4

* * *

46 U.S.C. § 3718(b) 2Q1.2

46 U.S.C. § 70035(b) 2J1.1, 2J1.5

46 U.S.C. § 70036(b) 2A2.4

46 U.S.C. App. § 1707a(f)(2) 2B1.1

* * *

(B) Reclassification of Sections of United States Code

§2M4.1. Failure to Register and Evasion of Military Service

* * *

Commentary

Statutory Provision: 50 U.S.C. App. § 46250 U.S.C. § 3811.

* * *

§2M5.1. Evasion of Export Controls; Financial Transactions with Countries Supporting

International Terrorism

* * *

Commentary

Statutory Provisions: 18 U.S.C. § 2332d; 22 U.S.C. § 8512; 50 U.S.C. § 1705; 50 U.S.C. App. §§ 2401–

242050 U.S.C. §§ 4601–4623. For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

* * *

3. In addition to the provisions for imprisonment, 50 U.S.C. App. § 241050 U.S.C. § 4610 contains

provisions for criminal fines and forfeiture as well as civil penalties. The maximum fine for

individual defendants is $250,000. In the case of corporations, the maximum fine is five times

the value of the exports involved or $1 million, whichever is greater. When national security

controls are violated, in addition to any other sanction, the defendant is subject to forfeiture of

any interest in, security of, or claim against: any goods or tangible items that were the subject of

the violation; property used to export or attempt to export that was the subject of the violation;

and any proceeds obtained directly or indirectly as a result of the violation.

4. For purposes of subsection (a)(1)(B), “a country supporting international terrorism” means

a country designated under section 6(j) of the Export Administration Act (50 U.S.C. App. 2405

50 U.S.C. § 4605).

* * *

APPENDIX A

STATUTORY INDEX

* * *

22 U.S.C. § 8512 2M5.1, 2M5.2, 2M5.3

25 U.S.C. § 450d§ 5306 2B1.1

26 U.S.C. § 5148(1) 2T2.1

* * *

50 U.S.C. § 3121 2M3.9

50 U.S.C. App. § 46250 U.S.C. § 3811 2M4.1

50 U.S.C. App. § 527(e)50 U.S.C. § 3937(e) 2X5.2

50 U.S.C. App. § 241050 U.S.C. § 4610 2M5.1

52 U.S.C. § 10307(c) 2H2.1

* * *

§2D1.1. Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including

Possession with Intent to Commit These Offenses); Attempt or Conspiracy

* * *

Commentary

* * *

Application Notes:

* * *

8. Use of Drug Conversion Tables.—

(A) Controlled Substances Not Referenced in Drug Quantity Table.—The Commission

has used the sentences provided in, and equivalences derived from, the statute (21 U.S.C.

§ 841(b)(1)), asas the primary basis for the guideline sentences. The statute, however,

provides direction only for the more common controlled substances, i.e., heroin, cocaine,

PCP, methamphetamine, fentanyl, LSDLSD, and marihuana. In the case of a controlled

substance that is not specifically referenced in the Drug Quantity Table, determine the base

offense level as follows:

(i) Use the Drug Conversion Tables to find the converted drug weight of the controlled

substance involved in the offense.

(ii) Find the corresponding converted drug weight in the Drug Quantity Table.

(iii) Use the offense level that corresponds to the converted drug weight determined above

as the base offense level for the controlled substance involved in the offense.

(See also Application Note 6.) For example, in the Drug Conversion Tables set forth in this

Note, 1 gram of a substance containing oxymorphone, a Schedule I opiate, converts to

5 kilograms of converted drug weight. In a case involving 100 grams of oxymorphone, the

converted drug weight would be 500 kilograms, which corresponds to a base offense level of

26 in the Drug Quantity Table.

* * *

(D) Drug Conversion Tables.—

SCHEDULE I OR II OPIATES* CONVERTED DRUG WEIGHT

1 gm of Heroin = 1 kg

1 gm of Dextromoramide = 670 gm

1 gm of Dipipanone = 250 gm

1 gm of 1-Methyl-4-phenyl-4-propionoxypiperidine/MPPP = 700 gm

1 gm of 1-(2-Phenylethyl)-4-phenyl-4-acetyloxypiperidine/PEPAP = 700 gm

1 gm of Alphaprodine = 100 gm

1 gm of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] Propanamide) = 2.5 kg

1 gm of a Fentanyl Analogue = 10 kg

1 gm of Hydromorphone/Dihydromorphinone = 2.5 kg

1 gm of Levorphanol = 2.5 kg

1 gm of Meperidine/Pethidine = 50 gm

1 gm of Methadone = 500 gm

1 gm of 6-Monoacetylmorphine = 1 kg

1 gm of Morphine = 500 gm

1 gm of Oxycodone (actual) = 6700 gm

1 gm of Oxymorphone = 5 kg

1 gm of Racemorphan = 800 gm

1 gm of Codeine = 80 gm

1 gm of Dextropropoxyphene/Propoxyphene-Bulk = 50 gm

1 gm of Ethylmorphine = 165 gm

1 gm of Hydrocodone (actual) = 6700 gm

1 gm of Mixed Alkaloids of Opium/Papaveretum = 250 gm

1 gm of Opium = 50 gm

1 gm of Levo-alpha-acetylmethadol (LAAM) = 3 kg

1 gm of 1-(2-Phenylethyl)-4-phenyl-4-acetyloxypiperidine (PEPAP) = 700 gm

1 gm of 1-Methyl-4-phenyl-4-propionoxypiperidine (MPPP) = 700 gm

1 gm of 6-Monoacetylmorphine = 1 kg

1 gm of Alphaprodine = 100 gm

1 gm of Codeine = 80 gm

1 gm of Dextromoramide = 670 gm

1 gm of Dextropropoxyphene/Propoxyphene-Bulk = 50 gm

1 gm of Dipipanone = 250 gm

1 gm of Ethylmorphine = 165 gm

1 gm of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] Propanamide) = 2.5 kg

1 gm of a Fentanyl Analogue = 10 kg

1 gm of Heroin = 1 kg

1 gm of Hydrocodone (actual) = 6,700 gm

1 gm of Hydromorphone/Dihydromorphinone = 2.5 kg

1 gm of Levo-alpha-acetylmethadol (LAAM) = 3 kg

1 gm of Levorphanol = 2.5 kg

1 gm of Meperidine/Pethidine = 50 gm

1 gm of Methadone = 500 gm

1 gm of Mixed Alkaloids of Opium/Papaveretum = 250 gm

1 gm of Morphine = 500 gm

1 gm of Opium = 50 gm

1 gm of Oxycodone (actual) = 6,700 gm

1 gm of Oxymorphone = 5 kg

1 gm of Racemorphan = 800 gm

*Provided, that the minimum offense level from the Drug Quantity Table for any of these controlled substances

individually, or in combination with another controlled substance, is level 12.

COCAINE AND OTHER SCHEDULE I AND II STIMULANTS

(AND THEIR IMMEDIATE PRECURSORS)* CONVERTED DRUG WEIGHT

1 gm of Cocaine = 200 gm

1 gm of N-Ethylamphetamine = 80 gm

1 gm of Fenethylline = 40 gm

1 gm of Amphetamine = 2 kg

1 gm of Amphetamine (Actual) = 20 kg

1 gm of Methamphetamine = 2 kg

1 gm of Methamphetamine (Actual) = 20 kg

1 gm of “Ice” = 20 kg

1 gm of Khat = .01 gm

1 gm of 4-Methylaminorex (“Euphoria”) = 100 gm

1 gm of Methylphenidate (Ritalin) = 100 gm

1 gm of Phenmetrazine = 80 gm

1 gm Phenylacetone/P

P (when possessed for the purpose

of manufacturing methamphetamine) = 416 gm

1 gm Phenylacetone/P

P (in any other case) = 75 gm

1 gm Cocaine Base (“Crack”) = 3,571 gm

1 gm of Aminorex = 100 gm

1 gm of N-N-Dimethylamphetamine = 40 gm

1 gm of N-Benzylpiperazine = 100 gm

1 gm of 4-Methylaminorex (“Euphoria”) = 100 gm

1 gm of Aminorex = 100 gm

1 gm of Amphetamine = 2 kg

1 gm of Amphetamine (actual) = 20 kg

1 gm of Cocaine = 200 gm

1 gm of Cocaine Base (“Crack”) = 3,571 gm

1 gm of Fenethylline = 40 gm

1 gm of “Ice” = 20 kg

1 gm of Khat = .01 gm

1 gm of Methamphetamine = 2 kg

1 gm of Methamphetamine (actual) = 20 kg

1 gm of Methylphenidate (Ritalin) = 100 gm

1 gm of N-Benzylpiperazine = 100 gm

1 gm of N-Ethylamphetamine = 80 gm

1 gm of N-N-Dimethylamphetamine = 40 gm

1 gm of Phenmetrazine = 80 gm

1 gm of Phenylacetone (P

P) (when possessed for the purpose

of manufacturing methamphetamine) = 416 gm

1 gm of Phenylacetone (P

P) (in any other case) = 75 gm

*Provided, that the minimum offense level from the Drug Quantity Table for any of these controlled substances

individually, or in combination with another controlled substance, is level 12.

SYNTHETIC CATHINONES (EXCEPT SCHEDULE III, IV, AND V SUBSTANCES)* CONVERTED DRUG WEIGHT

1 gm of a sSynthetic cCathinone

(except a Schedule III, IV, or V substance) = 380 gm

*Provided, that the minimum offense level from the Drug Quantity Table for any synthetic cathinone (except a

Schedule III, IV, or V substance) individually, or in combination with another controlled substance, is level 12.

LSD, PCP, AND OTHER SCHEDULE I AND II HALLUCINOGENS

(AND THEIR IMMEDIATE PRECURSORS)* CONVERTED DRUG WEIGHT

1 gm of Bufotenine = 70 gm

1 gm of D-Lysergic Acid Diethylamide/Lysergide/LSD = 100 kg

1 gm of Diethyltryptamine/DET = 80 gm

1 gm of Dimethyltryptamine/DM = 100 gm

1 gm of Mescaline = 10 gm

1 gm of Mushrooms containing Psilocin and/or

Psilocybin (Dry) = 1 gm

1 gm of Mushrooms containing Psilocin and/or

Psilocybin (Wet) = 0.1 gm

1 gm of Peyote (Dry) = 0.5 gm

1 gm of Peyote (Wet) = 0.05 gm

1 gm of Phencyclidine/PCP = 1 kg

1 gm of Phencyclidine (actual) /PCP (actual) = 10 kg

1 gm of Psilocin = 500 gm

1 gm of Psilocybin = 500 gm

1 gm of Pyrrolidine Analog of Phencyclidine/PHP = 1 kg

1 gm of Thiophene Analog of Phencyclidine/TCP = 1 kg

1 gm of 4-Bromo-2,5-Dimethoxyamphetamine/DOB = 2.5 kg

1 gm of 2,5-Dimethoxy-4-methylamphetamine/DOM = 1.67 kg

1 gm of 3,4-Methylenedioxyamphetamine/MDA = 500 gm

1 gm of 3,4-Methylenedioxymethamphetamine/MDMA = 500 gm

1 gm of 3,4-Methylenedioxy-N-ethylamphetamine/MDEA = 500 gm

1 gm of Paramethoxymethamphetamine/PMA = 500 gm

1 gm of 1-Piperidinocyclohexanecarbonitrile/PCC = 680 gm

1 gm of N-ethyl-1-phenylcyclohexylamine (PCE) = 1 kg

1 gm of 1-Piperidinocyclohexanecarbonitrile (PCC) = 680 gm

1 gm of 2,5-Dimethoxy-4-methylamphetamine (DOM) = 1.67 kg

1 gm of 3,4-Methylenedioxyamphetamine (MDA) = 500 gm

1 gm of 3,4-Methylenedioxymethamphetamine (MDMA) = 500 gm

1 gm of 3,4-Methylenedioxy-N-ethylamphetamine (MDEA) = 500 gm

1 gm of 4-Bromo-2,5-Dimethoxyamphetamine (DOB) = 2.5 kg

1 gm of Bufotenine = 70 gm

1 gm of D-Lysergic Acid Diethylamide/Lysergide (LSD) = 100 kg

1 gm of Diethyltryptamine (DET) = 80 gm

1 gm of Dimethyltryptamine (DM) = 100 gm

1 gm of Mescaline = 10 gm

1 gm of Mushrooms containing Psilocin and/or

Psilocybin (dry) = 1 gm

1 gm of Mushrooms containing Psilocin and/or

Psilocybin (wet) = 0.1 gm

1 gm of N-ethyl-1-phenylcyclohexylamine (PCE) = 1 kg

1 gm of Paramethoxymethamphetamine (PMA) = 500 gm

1 gm of Peyote (dry) = 0.5 gm

1 gm of Peyote (wet) = 0.05 gm

1 gm of Phencyclidine (PCP) = 1 kg

1 gm of Phencyclidine (PCP) (actual) = 10 kg

1 gm of Psilocin = 500 gm

1 gm of Psilocybin = 500 gm

1 gm of Pyrrolidine Analog of Phencyclidine (PHP) = 1 kg

1 gm of Thiophene Analog of Phencyclidine (TCP) = 1 kg

*Provided, that the minimum offense level from the Drug Quantity Table for any of these controlled substances

individually, or in combination with another controlled substance, is level 12.

SCHEDULE I MARIHUANA CONVERTED DRUG WEIGHT

1 gm of Marihuana/Cannabis, granulated, powdered, etc. = 1 gm

1 gm of Hashish Oil = 50 gm

1 gm of Cannabis Resin or Hashish = 5 gm

1 gm of Hashish Oil = 50 gm

1 gm of Marihuana/Cannabis (granulated, powdered, etc.) = 1 gm

1 gm of Tetrahydrocannabinol, Organic (organic) = 167 gm

1 gm of Tetrahydrocannabinol, Synthetic (synthetic) = 167 gm

SYNTHETIC CANNABINOIDS (EXCEPT SCHEDULE III, IV, AND V SUBSTANCES)* CONVERTED DRUG

WEIGHT

1 gm of a sSynthetic cCannabinoid

(except a Schedule III, IV, or V substance) = 167 gm

*Provided, that the minimum offense level from the Drug Quantity Table for any synthetic cannabinoid (except a

Schedule III, IV, or V substance) individually, or in combination with another controlled substance, is level 12.

“Synthetic cCannabinoid,” for purposes of this guideline, means any synthetic substance (other than synthetic

tetrahydrocannabinol) that binds to and activates type 1 cannabinoid receptors (CB

receptors).

FLUNITRAZEPAM ** CONVERTED DRUG WEIGHT

1 unit of Flunitrazepam = 16 gm

**Provided, that the minimum offense level from the Drug Quantity Table for flunitrazepam individually, or in

combination with any Schedule I or II depressants, Schedule III substances, Schedule IV substances, and

Schedule V substances is level 8.

SCHEDULE I OR II DEPRESSANTS (EXCEPT GGAMMA-HYDROXYBUTYRIC AACID) CONVERTED DRUG WEIGHT

1 unit of a Schedule I or II Depressant

(except gGamma-hydroxybutyric aAcid) = 1 gm

GAMMA-HYDROXYBUTYRIC ACID CONVERTED DRUG WEIGHT

1 ml of gGamma-hydroxybutyric aAcid = 8.8 gm

SCHEDULE III SUBSTANCES (EXCEPT KKETAMINE)*** CONVERTED DRUG WEIGHT

1 unit of a Schedule III Substance = 1 gm

***Provided, that the combined converted weight of all Schedule III substances (except ketamine), Schedule IV

substances (except flunitrazepam), and Schedule V substances shall not exceed 79.99 kilograms of converted drug

weight.

KETAMINE CONVERTED DRUG WEIGHT

1 unit of kKetamine = 1 gm

SCHEDULE IV SUBSTANCES (EXCEPT FFLUNITRAZEPAM)**** CONVERTED DRUG WEIGHT

1 unit of a Schedule IV Substance

(except Flunitrazepam) = 0.0625 gm

****Provided, that the combined converted weight of all Schedule IV (except flunitrazepam) and V substances

shall not exceed 9.99 kilograms of converted drug weight.

SCHEDULE V SUBSTANCES***** CONVERTED DRUG WEIGHT

1 unit of a Schedule V Substance = 0.00625 gm

*****Provided, that the combined converted weight of Schedule V substances shall not exceed 2.49 kilograms of

converted drug weight.

LIST I CHEMICALS (RELATING TO THE MANUFACTURE

OF AAMPHETAMINE OR MMETHAMPHETAMINE)****** CONVERTED DRUG WEIGHT

1 gm of Ephedrine = 10 kg

1 gm of Phenylpropanolamine = 10 kg

1 gm of Pseudoephedrine = 10 kg

******Provided, that in a case involving ephedrine, pseudoephedrine, or phenylpropanolamine tablets, use the

weight of the ephedrine, pseudoephedrine, or phenylpropanolamine contained in the tablets, not the weight of the

entire tablets, in calculating the base offense level.

DATE RAPE DRUGS (EXCEPT FFLUNITRAZEPAM, GHB, OR KKETAMINE) CONVERTED DRUG WEIGHT

1 ml of 1,4-bButanediol = 8.8 gm

1 ml of gGamma bButyrolactone = 8.8 gm

To facilitate conversions to converted drug weight, the following table is provided:

MEASUREMENT CONVERSION TABLE

1 oz = 28.35 gm

1 lb = 453.6 gm

1 lb = 0.4536 kg

1 gal = 3.785 liters

1 qt = 0.946 liters

1 gm = 1 ml (liquid)

1 liter = 1,000 ml

1 kg = 1,000 gm

1 gm = 1,000 mg

1 grain = 64.8 mg.

9. Determining Quantity Based on Doses, Pills, or Capsules.—If the number of doses, pills,

or capsules but not the weight of the controlled substance is known, multiply the number of doses,

pills, or capsules by the typical weight per dose in the table below to estimate the total weight of

the controlled substance (e.g., 100 doses of Mescaline at 500 milligrams per dose = 50 grams of

mescaline). The Typical Weight Per Unit Table, prepared from information provided by the Drug

Enforcement Administration, displays the typical weight per dose, pill, or capsule for certain

controlled substances. Do not use this table if any more reliable estimate of the total weight is

available from case-specific information.

TYPICAL WEIGHT PER UNIT (DOSE, PILL, OR CAPSULE) TABLE

HALLUCINOGENS

2,5-Dimethoxy-4-methylamphetamine (STP, DOM)* 3 mg

MDA 250 mg

MDMA 250 mg

Mescaline 500 mg

PCP* 5 mg

Peyote (dry) 12 gm

Peyote (wet) 120 gm

Psilocin* 10 mg

Psilocybe mushrooms (dry) 5 gm

Psilocybe mushrooms (wet) 50 gm

Psilocybin* 10 mg

2,5-Dimethoxy-4-methylamphetamine (STP, DOM)* 3 mg

MARIHUANA

1 marihuana cigarette 0.5 gm

STIMULANTS

Amphetamine* 10 mg

Methamphetamine* 5 mg

Phenmetrazine (Preludin)* 75 mg

*For controlled substances marked with an asterisk, the weight per unit shown is the weight of

the actual controlled substance, and not generally the weight of the mixture or substance

containing the controlled substance. Therefore, use of this table provides a very conservative

estimate of the total weight.

* * *

21. Applicability of Subsection (b)(18).—The applicability of subsection (b)(18) shall be

determined without regard to whether the defendant was convicted of an offense that subjects

the defendant to a mandatory minimum term of imprisonment. Section §5C1.2(b)5C1.2(b), which

provides a minimum offense level of level 17, is not pertinent to the determination of whether

subsection (b)(18) applies.

* * *

Background: Offenses under 21 U.S.C. §§ 841 and 960 receive identical punishment based upon the

quantity of the controlled substance involved, the defendant’s criminal history, and whether death or

serious bodily injury resulted from the offense.

* * *

Subsection (b)(14)(A) implements the instruction to the Commission in section 303 of Public

Law 103104–237.

* * *

The Drug Conversion Tables set forth in Application Note 8 were previously called the Drug

Equivalency Tables. In the original 1987 Guidelines Manual, the Drug Equivalency Tables provided

four conversion factors (or “equivalents”) for determining the base offense level in cases involving

either a controlled substance not referenced in the Drug Quantity Table or multiple controlled

substances: heroin, cocaine, PCP, and marihuana. In 1991, the Commission amended the Drug

Equivalency Tables to provide for one substance, marihuana, as the single conversion factor in §2D1.1.

See USSG App. C, Amendment 396 (effective November 1, 1991). In 2018, the Commission amended

§2D1.1 to replace marihuana as the conversion factor with the new term “converted drug weight” and

to change the title of the Drug Equivalency Tables to the “Drug Conversion Tables.” See USSG App. C,

Amendment 808 (effective November 1, 2018).

(D) References to 18 U.S.C. § 876

§2A4.2. Demanding or Receiving Ransom Money

* * *

Commentary

Statutory Provisions: 18 U.S.C. §§ 876(a), 877, 1202. For additional statutory provision(s),

see Appendix A (Statutory Index).

* * *

§2A6.1. Threatening or Harassing Communications; Hoaxes; False Liens

* * *

Commentary

Statutory Provisions: 18 U.S.C. §§ 32(c), 35(b), 871, 876(c), 877, 878(a), 879, 1038, 1521, 1992(a)(9),

(a)(10), 2291(a)(8), 2291(e), 2292, 2332b(a)(2); 47 U.S.C. § 223(a)(1)(C)–(E); 49 U.S.C. § 46507. For

additional statutory provision(s), see Appendix A (Statutory Index).

* * *

§2B3.2. Extortion by Force or Threat of Injury or Serious Damage

* * *

Commentary

Statutory Provisions: 18 U.S.C. §§ 875(b), (d), 876(b), (d), 877, 1030(a)(7), 1951. For additional

statutory provision(s), see Appendix A (Statutory Index).

* * *

APPENDIX A

STATUTORY INDEX

* * *

18 U.S.C. § 875(a) 2A4.2, 2B3.2

18 U.S.C. § 875(b) 2B3.2

18 U.S.C. § 875(c) 2A6.1

18 U.S.C. § 875(d) 2B3.2, 2B3.3

18 U.S.C. § 876 2A4.2, 2A6.1, 2B3.2, 2B3.3

18 U.S.C. § 876(a) 2A4.2, 2B3.2

18 U.S.C. § 876(b) 2B3.2

18 U.S.C. § 876(c) 2A6.1

18 U.S.C. § 876(d) 2B3.2, 2B3.3

18 U.S.C. § 877 2A4.2, 2A6.1, 2B3.2, 2B3.3

* * *

(E) Technical Changes to Commentary in Chapter Eight

§8A1.2. Application Instructions ― Organizations

* * *

Commentary

Application Notes:

3. The following are definitions of terms used frequently in this chapter:

(G) “Prior criminalCriminal adjudication” means conviction by trial, plea of guilty

(including an Alford plea), or plea of nolo contendere.

* * *

§8C2.5. Culpability Score

* * *

Commentary

Application Notes:

1. Definitions.—For purposes of this guideline, “condoned”, “prior criminal adjudication”,

“similar misconduct”, “substantial authority personnel”, and “willfully ignorant of the

offense” have the meaning given those terms in Application Note 3 of the Commentary to §8A1.2

(Application Instructions ― Organizations).

* * *

§8C3.2. Payment of the Fine ― Organizations

* * *

Commentary

Application Note:

1. When the court permits other than immediate payment, the period provided for payment shall

in no event exceed five yearsshall be the shortest time in which full payment can reasonably be

made. 18 U.S.C. § 3572(d).

* * *

(F) Clerical Changes to Correct Typographical Errors

§1B1.1. Application Instructions

* * *

Commentary

Application Notes:

1. The following are definitions of terms that are used frequently in the guidelines and are of

general applicability (except to the extent expressly modified in respect to a particular guideline

or policy statement):

* * *

(E) “Dangerous weapon” means (i) an instrument capable of inflicting death or serious bodily

injury; or (ii) an object that is not an instrument capable of inflicting death or serious bodily

injury but (I) closely resembles such an instrument; or (II) the defendant used the object in

a manner that created the impression that the object was such an instrument (e.g.e.g., a

defendant wrapped a hand in a towel during a bank robbery to create the appearance of a

gun).

* * *

§1B1.3. Relevant Conduct (Factors that Determine the Guideline Range)

* * *

Commentary

* * *

Background: This section prescribes rules for determining the applicable guideline sentencing range,

whereas §1B1.4 (Information to be Used in Imposing Sentence) governs the range of information that

the court may consider in adjudging sentence once the guideline sentencing range has been

determined. Conduct that is not formally charged or is not an element of the offense of conviction may

enter into the determination of the applicable guideline sentencing range. The range of information

that may be considered at sentencing is broader than the range of information upon which the

applicable sentencing range is determined.

Subsection (a) establishes a rule of construction by specifying, in the absence of more explicit

instructions in the context of a specific guideline, the range of conduct that is relevant to determining

the applicable offense level (except for the determination of the applicable offense guideline, which is

governed by §1B1.2(a)). No such rule of construction is necessary with respect to Chapters Four and

Five because the guidelines in those Chapterschapters are explicit as to the specific factors to be

considered.

* * *

§1B1.4. Information to be Used in Imposing Sentence (Selecting a Point Within the

Guideline Range or Departing from the Guidelines)

* * *

Commentary

Background: This section distinguishes between factors that determine the applicable guideline

sentencing range (§1B1.3) and information that a court may consider in imposing a sentence within

that range. The section is based on 18 U.S.C. § 3661, which recodifies 18 U.S.C. § 3577. The

recodification of this 1970 statute in 1984 with an effective date of 1987 (99 Stat. 1728), makes it clear

that Congress intended that no limitation would be placed on the information that a court may

consider in imposing an appropriate sentence under the future guideline sentencing system. A court

is not precluded from considering information that the guidelines do not take into account in

determining a sentence within the guideline range or from considering that information in

determining whether and to what extent to depart from the guidelines. For example, if the defendant

committed two robberies, but as part of a plea negotiation entered a guilty plea to only one, the robbery

that was not taken into account by the guidelines would provide a reason for sentencing at the top of

the guideline range and may provide a reason for an upward departure. Some policy statements do,

however, express a Commission policy that certain factors should not be considered for any purpose,

or should be considered only for limited purposes. See, e.g., Chapter Five, Part H (Specific Offender

Characteristics).

* * *

§1B1.10. Reduction in Term of Imprisonment as a Result of Amended Guideline Range

(Policy Statement)

Commentary

* * *

Background: Section 3582(c)(2) of Titletitle 18, United States Code, provides: “[I]n the case of a

defendant who has been sentenced to a term of imprisonment based on a sentencing range that has

subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o), upon motion

of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce

the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that

they are applicable, if such a reduction is consistent with applicable policy statements issued by the

Sentencing Commission.”

* * *

§2D2.3. Operating or Directing the Operation of a Common Carrier Under the

Influence of Alcohol or Drugs

* * *

Commentary

* * *

Background: This section implements the direction to the Commission in Sectionsection 6482 of the

Anti-Drug Abuse Act of 1988. Offenses covered by this guideline may vary widely with regard to harm

and risk of harm. The offense levels assume that the offense involved the operation of a common carrier

carrying a number of passengers, e.g., a bus. If no or only a few passengers were placed at risk, a

downward departure may be warranted. If the offense resulted in the death or serious bodily injury of

a large number of persons, such that the resulting offense level under subsection (b) would not

adequately reflect the seriousness of the offense, an upward departure may be warranted.

* * *

§2G2.1. Sexually Exploiting a Minor by Production of Sexually Explicit Visual or

Printed Material; Custodian Permitting Minor to Engage in Sexually Explicit

Conduct; Advertisement for Minors to Engage in Production

* * *

(b) Specific Offense Characteristics

* * *

(6) If, for the purpose of producing sexually explicit material or for the

purpose of transmitting such material live, the offense involved

(A) the knowing misrepresentation of a participant’s identity to

persuade, induce, entice, coerce, or facilitate the travel of, a minor to

engage in sexually explicit conduct; or (B) the use of a computer or an

interactive computer service to (i) persuade, induce, entice, coerce, or

facilitate the travel of, a minor to engage in sexually explicit conduct,

or to otherwise solicit participation by a minor in such conduct; or

(ii) solicit participation with a minor in sexually explicit conduct,

increase by 2 levels.

* * *

§2H3.1. Interception of Communications; Eavesdropping; Disclosure of Certain

Private or Protected Information

* * *

Commentary

* * *

Application Notes:

* * *

5. Upward Departure.—There may be cases in which the offense level determined under this

guideline substantially understates the seriousness of the offense. In such a case, an upward

departure may be warranted. The following are examples of cases in which an upward departure

may be warranted:

* * *

(B) The offense caused or risked substantial non-monetary harm (e.g.e.g., physical harm,

psychological harm, or severe emotional trauma, or resulted in a substantial invasion of

privacy interest) to individuals whose private or protected information was obtained.

* * *

§2K2.1. Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition;

Prohibited Transactions Involving Firearms or Ammunition

* * *

Commentary

* * *

Application Notes:

* * *

8. Application of Subsection (b)(4).—

(A) Interaction with Subsection (a)(7).—If the only offense to which §2K2.1 applies is

18 U.S.C. § 922(i), (j), or (u), or 18 U.S.C. § 924(l) or (m) (offenses involving a stolen firearm

or stolen ammunition) and the base offense level is determined under subsection (a)(7), do

not apply the enhancement in subsection (b)(4)(A). This is because the base offense level

takes into account that the firearm or ammunition was stolen. However, if the offense

involved a firearm with an altered or obliterated serial number, apply subsection (b)(4)(B).

Similarly, if the offense to which §2K2.1 applies is 18 U.S.C. § 922(k) or 26 U.S.C. § 5861(g)

or (h) (offenses involving an altered or obliterated serial number) and the base offense level

is determined under subsection (a)(7), do not apply the enhancement in subsection (b)(4)(B).

This is because the base offense level takes into account that the firearm had an altered or

obliterated serial number. However, itif the offense involved a stolen firearm or stolen

ammunition, apply subsection (b)(4)(A).

* * *

§2M1.1. Treason

* * *

Commentary

* * *

Background: Treason is a rarely prosecuted offense that could encompass a relatively broad range of

conduct, including many of the more specific offenses in this Partpart. The guideline contemplates

imposition of the maximum penalty in the most serious cases, with reference made to the most

analogous offense guideline in lesser cases.

* * *

§2T1.1. Tax Evasion; Willful Failure to File Return, Supply Information, or Pay Tax;

Fraudulent or False Returns, Statements, or Other Documents

* * *

Commentary

* * *

Application Notes:

* * *

7. Aggregation of Individual and Corporate Tax Loss.—If the offense involved both individual

and corporate tax returns, the tax loss is the aggregate tax loss from the individual tax offense

and the corporate tax offense added together. Accordingly, in a case in which a defendant fails to

report income derived from a corporation on both the defendant’s individual tax return and the

defendant’s corporate tax return, the tax loss is the sum of (A) the unreported or diverted amount

multiplied by (i) 28%; or (ii) the tax rate for the individual tax offense, if sufficient information is

available to make a more accurate assessment of that tax rate; and (B) the unreported or diverted

amount multiplied by (i) 34%; or (ii) the tax rate for the corporate tax offense, if sufficient

information is available to make a more accurate assessment of that tax rate. For example, the

defendant, the sole owner of a Subchaptersubchapter C corporation, fraudulently understates

the corporation’s income in the amount of $100,000 on the corporation’s tax return, diverts the

funds to the defendant’s own use, and does not report these funds on the defendant’s individual

tax return. For purposes of this example, assume the use of 34% with respect to the corporate

tax loss and the use of 28% with respect to the individual tax loss. The tax loss attributable to

the defendant’s corporate tax return is $34,000 ($100,000 multiplied by 34%). The tax loss

attributable to the defendant’s individual tax return is $28,000 ($100,000 multiplied by 28%).

The tax loss for the offenses are added together to equal $62,000 ($34,000 + $28,000).

* * *

Background: This guideline relies most heavily on the amount of loss that was the object of the

offense. Tax offenses, in and of themselves, are serious offenses; however, a greater tax loss is obviously

more harmful to the treasuryTreasury and more serious than a smaller one with otherwise similar

characteristics. Furthermore, as the potential benefit from the offense increases, the sanction

necessary to deter also increases.

* * *

PART T ― OFFENSES INVOLVING TAXATION

* * *

2. ALCOHOL AND TOBACCO TAXES

Introductory Commentary

This subpart deals with offenses contained in Partsparts I–IV of Subchaptersubchapter J of

Chapterchapter 51 of Subtitlesubtitle E of Titletitle 26, United States Code, chiefly 26 U.S.C. §§ 5601–

5605, 5607, 5608, 5661, 5671, 5691, and 5762, where the essence of the conduct is tax evasion or a

regulatory violation. No effort has been made to provide a section-by-section set of guidelines. Rather,

the conduct is dealt with by dividing offenses into two broad categories: tax evasion offenses and

regulatory offenses.

* * *

3. CUSTOMS TAXES

Introductory Commentary

This Subpartsubpart deals with violations of 18 U.S.C. §§ 496, 541–545, 547, 548, 550, 551, 1915

and 19 U.S.C. §§ 283, 1436, 1464, 1465, 1586(e), 1708(b), and 3907, and is designed to address

violations involving revenue collection or trade regulation. It is intended to deal with some types of

contraband, such as certain uncertified diamonds, but is not intended to deal with the importation of

other types of contraband, such as drugs, or other items such as obscene material, firearms or pelts of

endangered species, the importation of which is prohibited or restricted for non-economic reasons.

Other, more specific criminal statutes apply to most of these offenses. Importation of contraband or

stolen goods not specifically covered by this Subpartsubpart would be a reason for referring to another,

more specific guideline, if applicable, or for departing upward if there is not another more specific

applicable guideline.

* * *

CHAPTER THREE

ADJUSTMENTS

PART A ― VICTIM-RELATED ADJUSTMENTS

Introductory Commentary

The following adjustments are included in this Partpart because they may apply to a wide variety

of offenses.

* * *

§3A1.1. Hate Crime Motivation or Vulnerable Victim

* * *

Commentary

* * *

Background: Subsection (a) reflects the directive to the Commission, contained in

Sectionsection 280003 of the Violent Crime Control and Law Enforcement Act of 1994, to provide an

enhancement of not less than three levels for an offense when the finder of fact at trial determines

beyond a reasonable doubt that the defendant had a hate crime motivation. To avoid unwarranted

sentencing disparity based on the method of conviction, the Commission has broadened the application

of this enhancement to include offenses that, in the case of a plea of guilty or nolo contendere, the court

at sentencing determines are hate crimes. In section 4703(a) of Public Law 111–84, Congress

broadened the scope of that directive to include gender identity; to reflect that congressional action,

the Commission has broadened the scope of this enhancement to include gender identity.

* * *

PART B ― ROLE IN THE OFFENSE

Introductory Commentary

This Partpart provides adjustments to the offense level based upon the role the defendant played

in committing the offense. The determination of a defendant’s role in the offense is to be made on the

basis of all conduct within the scope of §1B1.3 (Relevant Conduct), i.e., all conduct included under

§1B1.3(a)(1)–(4), and not solely on the basis of elements and acts cited in the count of conviction.

* * *

§3C1.1. Obstructing or Impeding the Administration of Justice

* * *

Commentary

Application Notes:

* * *

4. Examples of Covered Conduct.—The following is a non-exhaustive list of examples of the

types of conduct to which this adjustment applies:

* * *

(I) other conduct prohibited by obstruction of justice provisions under Titletitle 18, United

States Code (e.g., 18 U.S.C. §§ 1510, 1511);

* * *

PART D ― MULTIPLE COUNTS

Introductory Commentary

This Partpart provides rules for determining a single offense level that encompasses all the

counts of which the defendant is convicted. These rules apply to multiple counts of conviction (A)

contained in the same indictment or information; or (B) contained in different indictments or

informations for which sentences are to be imposed at the same time or in a consolidated proceeding.

The single, “combined” offense level that results from applying these rules is used, after adjustment

pursuant to the guidelines in subsequent parts, to determine the sentence. These rules have been

designed primarily with the more commonly prosecuted federal offenses in mind.

The rules in this Partpart seek to provide incremental punishment for significant additional

criminal conduct. The most serious offense is used as a starting point. The other counts determine how

much to increase the offense level. The amount of the additional punishment declines as the number

of additional offenses increases.

* * *

In order to limit the significance of the formal charging decision and to prevent multiple

punishment for substantially identical offense conduct, this Partpart provides rules for grouping

offenses together. Convictions on multiple counts do not result in a sentence enhancement unless they

represent additional conduct that is not otherwise accounted for by the guidelines. In essence, counts

that are grouped together are treated as constituting a single offense for purposes of the guidelines.

* * *

Some offenses, e.g., racketeering and conspiracy, may be “composite” in that they involve a

pattern of conduct or scheme involving multiple underlying offenses. The rules in this Partpart are to

be used to determine the offense level for such composite offenses from the offense level for the

underlying offenses.

Essentially, the rules in this Partpart can be summarized as follows: (1) If the offense guidelines

in Chapter Two base the offense level primarily on the amount of money or quantity of substance

involved (e.g., theft, fraud, drug trafficking, firearms dealing), or otherwise contain provisions dealing

with repetitive or ongoing misconduct (e.g., many environmental offenses), add the numerical

quantities and apply the pertinent offense guideline, including any specific offense characteristics for

the conduct taken as a whole. (2) When offenses are closely interrelated, group them together for

purposes of the multiple-count rules, and use only the offense level for the most serious offense in that

group. (3) As to other offenses (e.g., independent instances of assault or robbery), start with the offense

level for the most serious count and use the number and severity of additional counts to determine the

amount by which to increase that offense level.

* * *

§3D1.1. Procedure for Determining Offense Level on Multiple Counts

* * *

Commentary

Application Notes:

* * *

2. Subsection (b)(1) applies if a statute (A) specifies a term of imprisonment to be imposed; and

(B) requires that such term of imprisonment be imposed to run consecutively to any other term

of imprisonment. See, e.g., 18 U.S.C. § 924(c) (requiring mandatory minimum terms of

imprisonment, based on the conduct involved, to run consecutively). The multiple count rules set

out under this Partpart do not apply to a count of conviction covered by subsection (b). However,

a count covered by subsection (b)(1) may affect the offense level determination for other counts.

For example, a defendant is convicted of one count of bank robbery (18 U.S.C. § 2113), and one

count of use of a firearm in the commission of a crime of violence (18 U.S.C. § 924(c)). The two

counts are not grouped together pursuant to this guideline, and, to avoid unwarranted double

counting, the offense level for the bank robbery count under §2B3.1 (Robbery) is computed

without application of the enhancement for weapon possession or use as otherwise required by

subsection (b)(2) of that guideline. Pursuant to 18 U.S.C. § 924(c), the mandatory minimum five-

year sentence on the weapon-use count runs consecutively to the guideline sentence imposed on

the bank robbery count. See §5G1.2(a).

Unless specifically instructed, subsection (b)(1) does not apply when imposing a sentence under

a statute that requires the imposition of a consecutive term of imprisonment only if a term of

imprisonment is imposed (i.e., the statute does not otherwise require a term of imprisonment to

be imposed). See, e.g., 18 U.S.C. § 3146 (Penalty for failure to appear); 18 U.S.C. § 924(a)(4)

(regarding penalty for 18 U.S.C. § 922(q) (possession or discharge of a firearm in a school zone));

18 U.S.C. § 1791(c) (penalty for providing or possessing a controlled substance in prison).

Accordingly, the multiple count rules set out under this Partpart do apply to a count of conviction

under this type of statute.

Background: This section outlines the procedure to be used for determining the combined offense

level. After any adjustments from Chapter 3Three, Part E (Acceptance of Responsibility) and

Chapter 4Four, Part B (Career Offenders and Criminal Livelihood) are made, this combined offense

level is used to determine the guideline sentence range. Chapter Five (Determining the Sentence)

discusses how to determine the sentence from the (combined) offense level; §5G1.2 deals specifically

with determining the sentence of imprisonment when convictions on multiple counts are involved.

References in Chapter Five (Determining the Sentence) to the “offense level” should be treated as

referring to the combined offense level after all subsequent adjustments have been made.

* * *

§3D1.2. Groups of Closely Related Counts

* * *

Commentary

Application Notes:

* * *

Background: Ordinarily, the first step in determining the combined offense level in a case involving

multiple counts is to identify those counts that are sufficiently related to be placed in the same Group

of Closely Related Counts (“Group”). This section specifies four situations in which counts are to be

grouped together. Although it appears last for conceptual reasons, subsection (d) probably will be used

most frequently.

* * *

Even if counts involve a single victim, the decision as to whether to group them together may not

always be clear cut. For example, how contemporaneous must two assaults on the same victim be in

order to warrant grouping together as constituting a single transaction or occurrence? Existing case

law may provide some guidance as to what constitutes distinct offenses, but such decisions often turn

on the technical language of the statute and cannot be controlling. In interpreting this Partpart and

resolving ambiguities, the court should look to the underlying policy of this Partpart as stated in the

Introductory Commentary.

* * *

§3D1.3. Offense Level Applicable to Each Group of Closely Related Counts

* * *

Commentary

* * *

Background: This section provides rules for determining the offense level associated with each Group

of Closely Related Counts. Summary examples of the application of these rules are provided at the end

of the Commentary to this Partpart.

* * *

§3D1.4. Determining the Combined Offense Level

* * *

Commentary

* * *

Background: When Groups are of roughly comparable seriousness, each Group will represent one

Unit. When the most serious Group carries an offense level substantially higher than that applicable

to the other Groups, however, counting the lesser Groups fully for purposes of the table could add

excessive punishment, possibly even more than those offenses would carry if prosecuted separately.

To avoid this anomalous result and produce declining marginal punishment, Groups 9 or more levels

less serious than the most serious Group should not be counted for purposes of the table, and that

Groups 5 to 8 levels less serious should be treated as equal to one-half of a Group. Thus, if the most

serious Group is at offense level 15 and if two other Groups are at level 10, there would be a total of

two Units for purposes of the table (one plus one-half plus one-half) and the combined offense level

would be 17. Inasmuch as the maximum increase provided in the guideline is 5 levels, departure would

be warranted in the unusual case where the additional offenses resulted in a total of significantly more

than 5 Units.

In unusual circumstances, the approach adopted in this section could produce adjustments for

the additional counts that are inadequate or excessive. If there are several groups and the most serious

offense is considerably more serious than all of the others, there will be no increase in the offense level

resulting from the additional counts. Ordinarily, the court will have latitude to impose added

punishment by sentencing toward the upper end of the range authorized for the most serious offense.

Situations in which there will be inadequate scope for ensuring appropriate additional punishment for

the additional crimes are likely to be unusual and can be handled by departure from the guidelines.

Conversely, it is possible that if there are several minor offenses that are not grouped together,

application of the rules in this Partpart could result in an excessive increase in the sentence range.

Again, such situations should be infrequent and can be handled through departure. An alternative

method for ensuring more precise adjustments would have been to determine the appropriate offense

level adjustment through a more complicated mathematical formula; that approach was not adopted

because of its complexity.

* * *

§4A1.3. Departures Based on Inadequacy of Criminal History Category (Policy

Statement)

* * *

Commentary

Application Notes:

* * *

2. Upward Departures.—

* * *

or to what extent, an upward departure based on a tribal court conviction is appropriate,

the court shall consider the factors set forth in §4A1.3(a) above and, in addition, may

consider relevant factors such as the following:

* * *

(v) The tribal court conviction is not based on the same conduct that formed the basis for

a conviction from another jurisdiction that receives criminal history points pursuant

to this Chapterchapter.

* * *

§4B1.1. Career Offender

* * *

Commentary

* * *

Background: Section 994(h) of Titletitle 28, United States Code, mandates that the Commission

assure that certain “career” offenders receive a sentence of imprisonment “at or near the maximum

term authorized.” Section 4B1.1 implements this directive, with the definition of a career offender

tracking in large part the criteria set forth in 28 U.S.C. § 994(h). However, in accord with its general

guideline promulgation authority under 28 U.S.C. § 994(a)–(f), and its amendment authority under 28

U.S.C. § 994(o) and (p), the Commission has modified this definition in several respects to focus more

precisely on the class of recidivist offenders for whom a lengthy term of imprisonment is appropriate

and to avoid “unwarranted sentencing disparities among defendants with similar records who have

been found guilty of similar criminal conduct . . . .” 28 U.S.C. § 991(b)(1)(B). The Commission’s

refinement of this definition over time is consistent with Congress’s choice of a directive to the

Commission rather than a mandatory minimum sentencing statute (“The [Senate Judiciary]

Committee believes that such a directive to the Commission will be more effective; the guidelines

development process can assure consistent and rational implementation for the Committee’s view that

substantial prison terms should be imposed on repeat violent offenders and repeat drug traffickers.”

S. Rep. No. 225, 98th Cong., 1st Sess. 175 (1983)).

* * *

§5C1.1. Imposition of a Term of Imprisonment

* * *

Commentary

Application Notes:

1. Subsection (a) provides that a sentence conforms with the guidelines for imprisonment if it is

within the minimum and maximum terms of the applicable guideline range specified in the

Sentencing Table in Part A of this Chapterchapter. For example, if the defendant has an Offense

Level of 20 and a Criminal History Category of I, the applicable guideline range is 33–41 months

of imprisonment. Therefore, a sentence of imprisonment of at least thirty-three months, but not

more than forty-one months, is within the applicable guideline range.

* * *

§5E1.1. Restitution

* * *

Commentary

Application Note:

1. The court shall not order community restitution under subsection (d) if it appears likely that

such an award would interfere with a forfeiture under Chapterchapter 46 or 96 of Titletitle 18,

United States Code, or under the Controlled Substances Act (21 U.S.C. § 801 et seq.).

See 18 U.S.C. § 3663(c)(4).

Furthermore, a penalty assessment under 18 U.S.C. § 3013 or a fine under

Subchaptersubchapter C of Chapterchapter 227 of Titletitle 18, United States Code, shall take

precedence over an order of community restitution under subsection (d). See 18 U.S.C.

§ 3663(c)(5).

Background: Section 3553(a)(7) of Titletitle 18, United States Code, requires the court, “in

determining the particular sentence to be imposed,” to consider “the need to provide restitution to any

victims of the offense.” Orders of restitution are authorized under 18 U.S.C. §§ 1593, 2248, 2259, 2264,

2327, 3663, and 3663A, and 21 U.S.C. § 853(q). For offenses for which an order of restitution is not

authorized, restitution may be imposed as a condition of probation or supervised release.

* * *

§5E1.3. Special Assessments

* * *

Commentary

* * *

Background: Section 3013 of Titletitle 18, United States Code, added by Thethe Victims of Crimes

Act of 1984, Pub. L. No. 98–473, Title II, Chap. XIV, requires courts to impose special assessments on

convicted defendants for the purpose of funding the Crime Victims Fund established by the same

legislation.

* * *

§5E1.4. Forfeiture

* * *

Commentary

Background: Forfeiture provisions exist in various statutes. For example, 18 U.S.C. § 3554 requires

the court imposing a sentence under 18 U.S.C. § 1962 (proscribing the use of the proceeds of

racketeering activities in the operation of an enterprise engaged in interstate commerce) or

Titlestitles II and III of the Comprehensive Drug Abuse Prevention and Control Act of 1970

(proscribing the manufacture and distribution of controlled substances) to order the forfeiture of

property in accordance with 18 U.S.C. § 1963 and 21 U.S.C. § 853, respectively. Those provisions

require the automatic forfeiture of certain property upon conviction of their respective underlying

offenses.

* * *

PART H ― SPECIFIC OFFENDER CHARACTERISTICS

Introductory Commentary

This Partpart addresses the relevance of certain specific offender characteristics in sentencing.

The Sentencing Reform Act (the “Act”) contains several provisions regarding specific offender

characteristics:

* * *

Accordingly, the purpose of this Partpart is to provide sentencing courts with a framework for

addressing specific offender characteristics in a reasonably consistent manner. Using such a

framework in a uniform manner will help “secure nationwide consistency,” see Gall v. United States,

552 U.S. 38, 49 (2007), “avoid unwarranted sentencing disparities,” see 28 U.S.C. § 991(b)(1)(B), 18

U.S.C. § 3553(a)(6), “provide certainty and fairness,” see 28 U.S.C. § 991(b)(1)(B), and “promote respect

for the law,” see 18 U.S.C. § 3553(a)(2)(A).

This Partpart allocates specific offender characteristics into three general categories.

* * *

CHAPTER SIX

SENTENCING PROCEDURES,

PLEA AGREEMENTS,

AND CRIME VICTIMS’ RIGHTS

* * *

PART A ― SENTENCING PROCEDURES

Introductory Commentary

This Partpart addresses sentencing procedures that are applicable in all cases, including those

in which guilty or nolo contendere pleas are entered with or without a plea agreement between the

parties, and convictions based upon judicial findings or verdicts. It sets forth the procedures for

establishing the facts upon which the sentence will be based. Reliable fact-finding is essential to

procedural due process and to the accuracy and uniformity of sentencing.

* * *

CHAPTER SEVEN

VIOLATIONS OF PROBATION

AND SUPERVISED RELEASE

PART A ― INTRODUCTION TO CHAPTER SEVEN

* * *

3. Resolution of Major Issues

(b) Choice Between Theories.

* * *

Further, the sanctions available to the courts upon revocation are, in many cases, more

significantly restrained by statute. Specifically, the term of imprisonment that may be

imposed upon revocation of supervised release is limited by statute to not more than five

years for persons convicted of Class A felonies, except for certain Titletitle 21 drug offenses;

not more than three years for Class B felonies; not more than two years for Class C or D

felonies; and not more than one year for Class E felonies. 18 U.S.C. § 3583(e)(3).

* * *

§8B1.1. Restitution ― Organizations

* * *

Commentary

Background: Section 3553(a)(7) of Titletitle 18, United States Code, requires the court, “in

determining the particular sentence to be imposed,” to consider “the need to provide restitution to any

victims of the offense.” Orders of restitution are authorized under 18 U.S.C. §§ 2248, 2259, 2264, 2327,

3663, and 3663A. For offenses for which an order of restitution is not authorized, restitution may be

imposed as a condition of probation.

* * *

§8B2.1. Effective Compliance and Ethics Program

* * *

Commentary

Application Notes:

1. Definitions.—For purposes of this guideline:

* * *

“Governing authority” means the (A) the Board of Directors; or (B) if the organization does not

have a Board of Directors, the highest-level governing body of the organization.

* * *

§8C3.3. Reduction of Fine Based on Inability to Pay

(a) The court shall reduce the fine below that otherwise required by §8C1.1

(Determining the Fine ― Criminal Purpose Organizations), or §8C2.7

(Guideline Fine Range ― Organizations) and §8C2.9 (Disgorgement), to the

extent that imposition of such fine would impair its abilitythe ability of the

organization to make restitution to victims.

* * *

§8E1.1. Special Assessments ― Organizations

* * *

Commentary

* * *

Background: Section 3013 of Titletitle 18, United States Code, added by The Victims of Crimes Act

of 1984, Pub. L. No. 98-473, Title II, Chap. XIV, requires courts to impose special assessments on

convicted defendants for the purpose of funding the Crime Victims Fund established by the same

legislation.

(G) Additional Clerical Changes to Guideline Commentary

§1B1.11. Use of Guidelines Manual in Effect on Date of Sentencing (Policy Statement)

* * *

Commentary

* * *

Background: Subsections (a) and (b)(1) provide that the court should apply the Guidelines Manual

in effect on the date the defendant is sentenced unless the court determines that doing so would violate

the ex post facto clause in Article I, § 9 of the United States Constitution. Under 18 U.S.C. § 3553, the

court is to apply the guidelines and policy statements in effect at the time of sentencing. However, the

Supreme Court has held that the ex post facto clause applies to sentencing guideline amendments that

subject the defendant to increased punishment. See Peugh v. United States, 133 S. Ct. 2072,

2078569 U.S. 530, 533 (2013) (holding that “there is an ex post facto violation when a defendant is

sentenced under Guidelines promulgated after he committed his criminal acts and the new version

provides a higher applicable Guidelines sentencing range than the version in place at the time of the

offense”).

* * *

§2K2.4. Use of Firearm, Armor-Piercing Ammunition, or Explosive During or in Relation

to Certain Crimes

* * *

Commentary

Statutory Provisions: 18 U.S.C. §§ 844(h), (o), 924(c), 929(a).

* * *

§2M5.3. Providing Material Support or Resources to Designated Foreign Terrorist

Organizations or Specially Designated Global Terrorists, or For a Terrorist

Purpose

* * *

Commentary

* * *

Application Notes:

1. Definitions.—For purposes of this guideline:

* * *

“Specially designated global terrorist” has the meaning given that term in 31 C.F.R.

§ 594.513594.310.

* * *

§2M6.1. Unlawful Activity Involving Nuclear Material, Weapons, or Facilities,

Biological Agents, Toxins, or Delivery Systems, Chemical Weapons, or Other

Weapons of Mass Destruction; Attempt or Conspiracy

(a) Base Offense Level (Apply the Greatest):

(1) 42, if the offense was committed with intent (A) to injure the United

States; or (B) to aid a foreign nation or a foreign terrorist organization;

(2) 28, if subsections (a)(1), (a)(3), and (a)(4) do not apply;

(3) 22, if the defendant is convicted under 18 U.S.C. § 175b; or

(4) 20, if (A) the defendant is convicted under 18 U.S.C. § 175(b); or

(B) the offense (i) involved a threat to use a nuclear weapon, nuclear

material, or nuclear byproduct material, a chemical weapon, a

biological agent, toxin, or delivery system, or a weapon of mass

destruction; but (ii) did not involve any conduct evidencing an intent

or ability to carry out the threat.

(b) Specific Offense Characteristics

(1) If (A) subsection (a)(2) or (a)(4)(A) applies; and (B) the offense involved

a threat to use, or otherwise involved (i) a select biological agent; (ii) a

listed precursor or a listed toxic chemical; (iii) nuclear material or

nuclear byproduct material; or (iv) a weapon of mass destruction that

contains any agent, precursor, toxic chemical, or material referred to

in subdivision (i), (ii), or (iii), increase by 2 levels.

(2) If (A) subsection (a)(2), (a)(3), or (a)(4)(A) applies; and (B)(i) any victim

died or sustained permanent or life-threatening bodily injury,

increase by 4 levels; (ii) any victim sustained serious bodily injury,

increase by 2 levels; or (iii) the degree of injury is between that

specified in subdivisions (i) and (ii), increase by 3 levels.

(3) If (A) subsection (a)(2), (a)(3), or (a)(4) applies; and (B) the offense

resulted in (i) substantial disruption of public, governmental, or

business functions or services; or (ii) a substantial expenditure of

funds to clean up, decontaminate, or otherwise respond to the offense,

increase by 4 levels.

(1) If the offense resulted in death, apply §2A1.1 (First Degree Murder) if

the death was caused intentionally or knowingly, or §2A1.2 (Second

Degree Murder) otherwise, if the resulting offense level is greater

than that determined above.

(2) If the offense was tantamount to attempted murder, apply §2A2.1

(Assault with Intent to Commit Murder; Attempted Murder), if the

resulting offense level is greater than that determined above.

(d) Special Instruction

(1) If the defendant is convicted of a single count involving (A) conduct

that resulted in the death or permanent, life-threatening, or serious

bodily injury of more than one victim, or (B) conduct tantamount to

the attempted murder of more than one victim, Chapter Three, Part D

(Multiple Counts) shall be applied as if such conduct in respect to each

victim had been contained in a separate count of conviction.

Commentary

Statutory Provisions: 18 U.S.C. §§ 175, 175b, 175c, 229, 831, 832, 842(p)(2) (only with respect to

weapons of mass destruction as defined in 18 U.S.C. § 2332a(c)(2)(B), (C), and (D)), 1992(a)(2), (a)(3),

(a)(4), (b)(2), 2283, 2291, 2332h; 42 U.S.C. §§ 2077(b), 2122, 2131. For additional statutory provision(s),

see Appendix A (Statutory Index).

Application Notes:

1. Definitions.—For purposes of this guideline:

“Biological agent” has the meaning given that term in 18 U.S.C. § 178(1).

“Chemical weapon” has the meaning given that term in 18 U.S.C. § 229F(1).

“Foreign terrorist organization” (A) means an organization that engages in terrorist activity

that threatens the security of a national of the United States or the national security of the

United States; and (B) includes an organization designated by the Secretary of State as a foreign

terrorist organization pursuant to section 219 of the Immigration and Nationality Act (8 U.S.C.

§ 1189). “National of the United States” has the meaning given that term in section 101(a)(22) of

the Immigration and Nationality Act (8 U.S.C. § 1101(a)(22)).

“Listed precursor or a listed toxic chemical” means a precursor or a toxic chemical,

respectively, listed in Schedule I of the Annex on Chemicals to the Chemical Weapons

Convention. See 18 U.S.C. § 229F(6)(B), (8)(B). “Precursor” has the meaning given that term in

18 U.S.C. § 229F(6)(A). “Toxic chemical” has the meaning given that term in 18 U.S.C.

§ 229F(8)(A).

“Nuclear byproduct material” has the meaning given that term in 18 U.S.C. § 831(g)(2).

“Nuclear material” has the meaning given that term in 18 U.S.C. § 831(g)(1).

“Restricted person” has the meaning given that term in 18 U.S.C. § 175b(d)(2).

“Select biological agent” means a biological agent or toxin identified (A) by the Secretary of

Health and Human Services on the select agent list established and maintained pursuant to

section 351A of the Public Health Service Act (42 U.S.C. § 262a); or (B) by the Secretary of

Agriculture on the list established and maintained pursuant to section 212 of the Agricultural

Bioterrorism Protection Act of 2002 (7 U.S.C. § 8401).

“Toxin” has the meaning given that term in 18 U.S.C. § 178(2).

“Vector” has the meaning given that term in 18 U.S.C. § 178(4).

“Weapon of mass destruction” has the meaning given that term in 18 U.S.C. § 2332a(c)(2)(B),

(C), and (D).

2. Threat Cases.—Subsection (a)(4)(B) applies in cases that involved a threat to use a weapon,

agent, or material covered by this guideline but that did not involve any conduct evidencing an

intent or ability to carry out the threat. For example, subsection (a)(4)(B) would apply in a case

in which the defendant threatened to contaminate an area with anthrax and also dispersed into

the area a substance that appeared to be anthrax but that the defendant knew to be harmless

talcum powder. In such a case, the dispersal of talcum powder does not evidence an intent on the

defendant’s part to carry out the threat. In contrast, subsection (a)(4)(B) would not apply in a

case in which the defendant threatened to contaminate an area with anthrax and also dispersed

into the area a substance that the defendant believed to be anthrax but that in fact was harmless

talcum powder. In such a case, the dispersal of talcum powder was conduct evidencing an intent

to carry out the threat because of the defendant’s belief that the talcum powder was anthrax.

Subsection (a)(4)(B) shall not apply in any case involving both a threat to use any weapon, agent,

or material covered by this guideline and the possession of that weapon, agent, or material. In

such a case, possession of the weapon, agent, or material is conduct evidencing an intent to use

that weapon, agent, or material.

3. Application of Special Instruction.—Subsection (d) applies in any case in which the

defendant is convicted of a single count involving (A) the death or permanent, life-threatening,

or serious bodily injury of more than one victim, or (B) conduct tantamount to the attempted

murder of more than one victim, regardless of whether the offense level is determined under this

guideline or under another guideline in Chapter Two (Offense Conduct) by use of a cross

reference under subsection (c).

* * *

§2T1.1. Tax Evasion; Willful Failure to File Return, Supply Information, or Pay Tax;

Fraudulent or False Returns, Statements, or Other Documents

* * *

Commentary

* * *

Application Notes:

* * *

6. Other Definitions.—For purposes of this section:

* * *

“Gross income” has the same meaning as it has in 26 U.S.C. § 61 and 26 C.F.R. § 1.611.61-1.

* * *

§3A1.2. Official Victim

(Apply the greatest):

(a) If (1) the victim was (A) a government officer or employee; (B) a former

government officer or employee; or (C) a member of the immediate family

of a person described in subdivision (A) or (B); and (2) the offense of

conviction was motivated by such status, increase by 3 levels.

(b) If subsection (a)(1) and (2) apply, and the applicable Chapter Two guideline

is from Chapter Two, Part A (Offenses Against the Person), increase by

6 levels.

defendant or a person for whose conduct the defendant is otherwise

accountable—

(1) knowing or having reasonable cause to believe that a person was a

law enforcement officer, assaulted such officer during the course of

the offense or immediate flight therefrom; or

(2) knowing or having reasonable cause to believe that a person was a

prison official, assaulted such official while the defendant (or a person

for whose conduct the defendant is otherwise accountable) was in the

custody or control of a prison or other correctional facility,

increase by 6 levels.

Commentary

Application Notes:

* * *

3. Application of Subsections (a) and (b).—“Motivated by such status”, for purposes of

subsections (a) and (b), means that the offense of conviction was motivated by the fact that the

victim was a government officer or employee, a former government officer or employee, or a

member of the immediate family thereof. This adjustment would not apply, for example, where

both the defendant and victim were employed by the same government agency and the offense

was motivated by a personal dispute. This adjustment also would not apply in the case of a

robbery of a postal employee because the offense guideline for robbery contains an enhancement

(§2B3.1(b)(1)) that takes such conduct into account.

* * *

§5G1.3. Imposition of a Sentence on a Defendant Subject to an Undischarged Term

of Imprisonment or Anticipated State Term of Imprisonment

* * *

Commentary

* * *

Background: Federal courts generally “have discretion to select whether the sentences they impose

will run concurrently or consecutively with respect to other sentences that they impose, or that have

been imposed in other proceedings, including state proceedings.” See Setser v. United States, 132 S. Ct.

1463, 1468566 U.S. 231, 236 (2012); 18 U.S.C. § 3584(a). Federal courts also generally have discretion

to order that the sentences they impose will run concurrently with or consecutively to other state

sentences that are anticipated but not yet imposed. See Setser, 132 S. Ct. at 1468566 U.S. at 236.

Exercise of that discretion, however, is predicated on the court’s consideration of the factors listed in

18 U.S.C. § 3553(a), including any applicable guidelines or policy statements issued by the Sentencing

Commission.

* * *

PROPOSED AMENDMENT: MISCELLANEOUS

Synopsis of Proposed Amendment: This proposed amendment is a result of the

Commission’s consideration of miscellaneous guidelines application issues. See U.S. Sent’g

Comm’n, “Notice of Final Priorities,” 87 FR 67756 (Nov. 9, 2022) (identifying as a priority

“[c]onsideration of other miscellaneous issues, including possible amendments to . . .

(B) section 3D1.2 (Grouping of Closely Related Counts) to address the interaction between

section 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 section 3D1.2(d); and (C) section 5F1.7 (Shock Incarceration Program

(Policy Statement)) to reflect that the Bureau of Prisons no longer operates a shock

incarceration program.”). The proposed amendment contains two parts (Part A and Part B).

The Commission is considering whether to promulgate either or both of these parts, as they

are not mutually exclusive.

Part A responds to a guideline application issue concerning the interaction of §2G1.3 and

§3D1.2 (Grouping of Closely Related Counts). Although subsection (d) of §3D1.2 specifies

that offenses covered by §2G1.1 are not grouped under the subsection, it does not specify

whether or not offenses covered by §2G1.3 are so grouped. Part A would amend §3D1.2(d) to

provide that offenses covered by §2G1.3, like offenses covered by §2G1.1, are not grouped

under subsection (d).

Part B revises the guidelines to address the fact that the Bureau of Prisons (“BOP”) no

longer operates a shock incarceration program as described in §5F1.7 (Shock Incarceration

Program (Policy Statement)). Part B would amend the Commentary to §5F1.7 to reflect the

fact that BOP no longer operates the program.

(A) Grouping of Offenses Covered by §2G1.3

Synopsis of Proposed Amendment: Part A of the proposed amendment revises §3D1.2

(Grouping of Closely Related Counts) to provide that offenses covered by §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) are not

grouped under §3D1.2(d).

Section 3D1.2 addresses the grouping of closely related counts for purposes of determining

the offense level when a defendant has been convicted on multiple counts. Subsection (d)

states that counts are grouped together “[w]hen the offense level is determined largely on

the basis of the total amount of harm or loss, the quantity of a substance involved, or some

other measure of aggregate harm, or if the offense behavior is ongoing or continuous in

nature and the offense guideline is written to cover such behavior.” Subsection (d) also

contains lists of (1) guidelines for which the offenses covered by the guideline are to be

grouped under the subsection and (2) guidelines for which the covered offenses are

specifically excluded from grouping under the subsection.

Section 2G1.1 (Promoting a Commercial Sex Act or Prohibited Sexual Conduct with an

Individual Other than a Minor) is included in the list of guidelines for which the covered

offenses are excluded from grouping under §3D1.2(d). Section 2G1.3 is, however, not

included on that list, even though several offenses that are referenced to §2G1.3 when the

offense involves a minor are referenced to §2G1.1 when the offense involves an individual

other than a minor. In addition, several offenses that were referenced to §2G1.1 before

§2G1.3 was promulgated are now referenced to §2G1.3. See USSG App. C, Amendment 664

(effective Nov. 1, 2004). Furthermore, Application Note 6 of the Commentary to §2G1.3

states that multiple counts under §2G1.3 are not to be grouped.

Section 2G1.3 is also not included on the list of guidelines for which the covered offenses are

to be grouped under §3D1.2(d). Because §2G1.3 is included on neither list, §3D.1(d)

provides that “grouping under [the] subsection may or may not be appropriate and a “case-

by-case determination must be made based upon the facts of the case and the applicable

guideline (including specific offense characteristics and other adjustments) used to

determine the offense level.”

Part A of the proposed amendment would amend §3D1.2(d) to add §2G1.3 to the list of

guidelines for which the covered offenses are specifically excluded from grouping.

Proposed Amendment:

§3D1.2. Groups of Closely Related Counts

All counts involving substantially the same harm shall be grouped together into

a single Group. Counts involve substantially the same harm within the

meaning of this rule:

(a) When counts involve the same victim and the same act or transaction.

(b) When counts involve the same victim and two or more acts or transactions

connected by a common criminal objective or constituting part of a common

scheme or plan.

offense characteristic in, or other adjustment to, the guideline applicable

to another of the counts.

(d) When the offense level is determined largely on the basis of the total

amount of harm or loss, the quantity of a substance involved, or some other

measure of aggregate harm, or if the offense behavior is ongoing or

continuous in nature and the offense guideline is written to cover such

behavior.

Offenses covered by the following guidelines are to be grouped under this

subsection:

§2A3.5;

§§2B1.1, 2B1.4, 2B1.5, 2B4.1, 2B5.1, 2B5.3, 2B6.1;

§§2C1.1, 2C1.2, 2C1.8;

§§2D1.1, 2D1.2, 2D1.5, 2D1.11, 2D1.13;

§§2E4.1, 2E5.1;

§§2G2.2, 2G3.1;

§2K2.1;

§§2L1.1, 2L2.1;

§2N3.1;

§2Q2.1;

§2R1.1;

§§2S1.1, 2S1.3;

§§2T1.1, 2T1.4, 2T1.6, 2T1.7, 2T1.9, 2T2.1, 2T3.1.

Specifically excluded from the operation of this subsection are:

all offenses in Chapter Two, Part A (except §2A3.5);

§§2B2.1, 2B2.3, 2B3.1, 2B3.2, 2B3.3;

§2C1.5;

§§2D2.1, 2D2.2, 2D2.3;

§§2E1.3, 2E1.4, 2E2.1;

§§2G1.1, 2G1.3, 2G2.1;

§§2H1.1, 2H2.1, 2H4.1;

§§2L2.2, 2L2.5;

§§2M2.1, 2M2.3, 2M3.1, 2M3.2, 2M3.3, 2M3.4, 2M3.5, 2M3.9;

§§2P1.1, 2P1.2, 2P1.3;

§2X6.1.

For multiple counts of offenses that are not listed, grouping under this

subsection may or may not be appropriate; a case-by-case determination

must be made based upon the facts of the case and the applicable

guidelines (including specific offense characteristics and other

adjustments) used to determine the offense level.

Exclusion of an offense from grouping under this subsection does not

necessarily preclude grouping under another subsection.

* * *

(B) Policy Statement on Shock Incarceration Programs

Synopsis of Proposed Amendment: Part B of the proposed amendment revises the

guidelines to address the fact that the Bureau of Prisons (“BOP”) no longer operates a shock

incarceration program as described in §5F1.7 (Shock Incarceration Program (Policy

Statement)) and the corresponding commentary.

Section 4046 of title 18, United States Code, authorizes BOP to place any person who has

been sentenced to a term of imprisonment of more than 12 but not more than 30 months in

a shock incarceration program if the person consents to that placement. Sections 3582(a)

and 3621(b)(4) of title 18 authorize a court, in imposing sentence, to make a

recommendation regarding the type of prison facility that would be appropriate for the

defendant. In making such a recommendation, the court “shall consider any pertinent

policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(a).

Section 5F1.7 provides that, pursuant to sections 3582(a) and 3621(b)(4), a sentencing court

may recommend that a defendant who meets the criteria set forth in section 4046

participate in a shock incarceration program. The Commentary to §5F1.7 describes the

authority for BOP to operate a shock incarceration program and the procedures that the

BOP established in 1990 regarding operation of such a program.

In 2008, BOP terminated its shock incarceration program and removed the rules governing

its operation. Part B of the proposed amendment would amend the Commentary to §5F1.7

to reflect those developments. It would also correct two typographical errors in the

commentary.

Proposed Amendment:

§5F1.7. Shock Incarceration Program (Policy Statement)

The court, pursuant to 18 U.S.C. §§ 3582(a) and 3621(b)(4), may recommend

that a defendant who meets the criteria set forth in 18 U.S.C. § 4046 participate

in a shock incarceration program.

Commentary

Background: Section 4046 of title 18, United States Code, provides—

“(a) the Bureau of Prisons may place in a shock incarceration program any person who is

sentenced to a term of more than 12, but not more than 30 months, if such person consents

to that placement.

(b) For such initial portion of the term of imprisonment as the Bureau of Prisons may

determine, not to exceed six6 months, an inmate in the shock incarceration program shall

be required to—

(1) adhere to a highly regimented schedule that provides the strict discipline, physical

training, hard labor, drill, and ceremony characteristic of military basic training; and

(2) participate in appropriate job training and educational programs (including literacy

programs) and drug, alcohol, and other counseling programs.

completed the required period of shock incarceration shall remain in the custody of the

Bureau for such period (not to exceed the remainder of the prison term otherwise required

by law to be served by that inmate), and under such conditions, as the Bureau deems

appropriate.” 18 U.S.C. § 4046.”

In 1990, theThe Bureau of Prisons has issued an operations memorandum (174-90 (5390),

November 20, 1990) that outlinesoutlined eligibility criteria and procedures for the implementation of

thisa shock incarceration program (which the Bureau of Prisons has titled the “intensive confinement

program”). Under these procedures, the Bureau will not place a defendant in an intensive confinement

program unless the sentencing court has approved, either at the time of sentencing or upon

consultation after the Bureau has determined that the defendant is otherwise eligible. In return for

the successful completion of the “intensive confinement” portion of the program, the defendant is

eligible to serve the remainder of his term of imprisonment in a graduated release program comprised

of community corrections center and home confinement phases.In 2008, however, the Bureau of

Prisons terminated the program and removed the rules governing its operation. See 73 Fed. Reg. 39863

(July 11, 2008).

* * *

PROPOSED AMENDMENT: FAKE PILLS

Synopsis of Proposed Amendment: This proposed amendment is a result of the

Commission’s consideration of miscellaneous guidelines application issues. See U.S. Sent’g

Comm’n, “Notice of Final Priorities,” 87 FR 67756 (Nov. 9, 2022) (identifying as a priority

“[c]onsideration of other miscellaneous issues, including possible amendments to

(A) section 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including

Possession with Intent to Commit These Offenses); Attempt or Conspiracy) to address

offenses involving misrepresentation or marketing of a controlled substance as another

substance . . . .”).

The proposed amendment responds to concerns expressed by the Drug Enforcement

Administration (DEA) about the proliferation of “fake pills” (i.e., illicitly manufactured pills

represented or marketed as legitimate pharmaceutical pills) containing fentanyl or fentanyl

analogue.

According to the DEA, these fake pills resemble legitimately manufactured pharmaceutical

pills (such as OxyContin, Xanax, and Adderall) but can result in sudden death or poisoning

due to the unknown presence and quantities of dangerous substances, such as fentanyl and

fentanyl analogues.

The DEA reported that it seized over 50.6 million fentanyl-laced, fake prescription pills in

calendar year 2022. See Drug Enforcement Administration, Press Release: Drug

Enforcement Administration Announces the Seizure of Over 379 million Deadly Doses of

Fentanyl in 2022 (Dec. 20, 2022), https://www.dea.gov/press-releases/2022/12/20/drug-

enforcement-administration-announces-seizure-over-379-million-deadly. DEA laboratory

testing indicates that the number of fake pills laced with fentanyl have sharply increased in

recent years and that six out of ten fentanyl-laced faked pills have been found to contain a

potentially fatal dose of fentanyl. See Drug Enforcement Administration, Public Safety

Alert: DEA Laboratory Testing Reveals that 6 out of 10 Fentanyl-Laced Fake Prescription

Pills Now Contain a Potentially Lethal Dose of Fentanyl (2022),

https://www.dea.gov/alert/dea-laboratory-testing-reveals-6-out-10-fentanyl-laced-fake-

prescription-pills-now-contain.

According to the Centers for Disease Control and Prevention (CDC), overdose deaths from

synthetic opioids containing fentanyl, including pills purporting to be legitimate

pharmaceuticals, have sharply increased in recent years. See Christine L. Mattson et al.,

Trends and Geographic Patterns in Drug and Synthetic Opioid Overdose Deaths — United

States, 2013–2019, 70 Morb Mortal Wkly Rep 6 (Feb. 12, 2021), https://www.cdc.gov/mmwr/

volumes/70/wr/mm7006a4.htm.

In order to address this issue, the DEA recommended that the Commission review the 4-

level enhancement for knowingly distributing or marketing as another substance a mixture

or substance containing fentanyl or fentanyl analogue as a different substance at

subsection (b)(13) of §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or

Trafficking). Specifically, the DEA suggested that the Commission consider changing the

mens rea requirement to expand the application of the enhancement to offenders who may

not have known fentanyl or fentanyl analogue was in the substance but distributed or

marketed a substance without regard to whether such dangerous substances could have

been present.

The proposed amendment would amend §2D1.1(b)(13) to add a new subparagraph with an

alternative 2-level enhancement for cases where the defendant represented or marketed as

a legitimately manufactured drug another mixture or substance containing fentanyl (N-

phenyl-N-[1-(2-phenylethyl )-4-piperidinyl] propanamide) or a fentanyl analogue, and acted

with willful blindness or conscious avoidance of knowledge that such mixture or substance

was not the legitimately manufactured drug. The new provision would refer to 21 U.S.C.

§ 321(g)(1) for purposes of defining the term “drug.”

Proposed Amendment:

§2D1.1. Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including

Possession with Intent to Commit These Offenses); Attempt or Conspiracy

(a) Base Offense Level (Apply the greatest):

(1) 43, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(A),

(b)(1)(B), or (b)(1)(C), or 21 U.S.C. § 960(b)(1), (b)(2), or (b)(3), and the

offense of conviction establishes that death or serious bodily injury

resulted from the use of the substance and that the defendant

committed the offense after one or more prior convictions for a similar

offense; or

(2) 38, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(A),

(b)(1)(B), or (b)(1)(C), or 21 U.S.C. § 960(b)(1), (b)(2), or (b)(3), and the

offense of conviction establishes that death or serious bodily injury

resulted from the use of the substance; or

(3) 30, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(E) or

21 U.S.C. § 960(b)(5), and the offense of conviction establishes that

death or serious bodily injury resulted from the use of the substance

and that the defendant committed the offense after one or more prior

convictions for a similar offense; or

(4) 26, if the defendant is convicted under 21 U.S.C. § 841(b)(1)(E) or

21 U.S.C. § 960(b)(5), and the offense of conviction establishes that

death or serious bodily injury resulted from the use of the substance;

(5) the offense level specified in the Drug Quantity Table set forth in

subsection (c), except that if (A) the defendant receives an adjustment

under §3B1.2 (Mitigating Role); and (B) the base offense level under

subsection (c) is (i) level 32, decrease by 2 levels; (ii) level 34 or

level 36, decrease by 3 levels; or (iii) level 38, decrease by 4 levels. If

the resulting offense level is greater than level 32 and the defendant

receives the 4-level (“minimal participant”) reduction in §3B1.2(a),

decrease to level 32.

(b) Specific Offense Characteristics

(1) If a dangerous weapon (including a firearm) was possessed, increase

by 2 levels.

(2) If the defendant used violence, made a credible threat to use violence,

or directed the use of violence, increase by 2 levels.

(3) If the defendant unlawfully imported or exported a controlled

substance under circumstances in which (A) an aircraft other than a

regularly scheduled commercial air carrier was used to import or

export the controlled substance, (B) a submersible vessel or semi-

submersible vessel as described in 18 U.S.C. § 2285 was used, or

officer, or any other operation officer aboard any craft or vessel

carrying a controlled substance, increase by 2 levels. If the resulting

offense level is less than level 26, increase to level 26.

(4) If the object of the offense was the distribution of a controlled

substance in a prison, correctional facility, or detention facility,

increase by 2 levels.

(5) If (A) the offense involved the importation of amphetamine or

methamphetamine or the manufacture of amphetamine or

methamphetamine from listed chemicals that the defendant knew

were imported unlawfully, and (B) the defendant is not subject to an

adjustment under §3B1.2 (Mitigating Role), increase by 2 levels.

(6) If the defendant is convicted under 21 U.S.C. § 865, increase by

2 levels.

(7) If the defendant, or a person for whose conduct the defendant is

accountable under §1B1.3 (Relevant Conduct), distributed a

controlled substance through mass-marketing by means of an

interactive computer service, increase by 2 levels.

(8) If the offense involved the distribution of an anabolic steroid and a

masking agent, increase by 2 levels.

(9) If the defendant distributed an anabolic steroid to an athlete, increase

by 2 levels.

(10) If the defendant was convicted under 21 U.S.C. § 841(g)(1)(A),

increase by 2 levels.

(11) If the defendant bribed, or attempted to bribe, a law enforcement

officer to facilitate the commission of the offense, increase by 2 levels.

(12) If the defendant maintained a premises for the purpose of

manufacturing or distributing a controlled substance, increase by

2 levels.

(13) If the defendant (A) knowingly misrepresented or knowingly

marketed as another substance a mixture or substance containing

fentanyl (N-phenyl-N-[1-(2-phenylethyl )-4-piperidinyl] propanamide)

or a fentanyl analogue, increase by 4 levels; or (B) represented or

marketed as a legitimately manufactured drug another mixture or

substance containing fentanyl (N-phenyl-N-[1-(2-phenylethyl )-4-

piperidinyl] propanamide) or a fentanyl analogue, and acted with

willful blindness or conscious avoidance of knowledge that such

mixture or substance was not the legitimately manufactured drug,

increase by [2] levels. The term “drug,” as used in

subsection (b)(13)(B), has the meaning given that term in 21 U.S.C.

§ 321(g)(1).

(14) (Apply the greatest):

(A) If the offense involved (i) an unlawful discharge, emission, or

release into the environment of a hazardous or toxic substance;

or (ii) the unlawful transportation, treatment, storage, or

disposal of a hazardous waste, increase by 2 levels.

(B) If the defendant was convicted under 21 U.S.C. § 860a of

distributing, or possessing with intent to distribute,

methamphetamine on premises where a minor is present or

resides, increase by 2 levels. If the resulting offense level is less

than level 14, increase to level 14.

(i) the defendant was convicted under 21 U.S.C. § 860a of

manufacturing, or possessing with intent to manufacture,

methamphetamine on premises where a minor is present or

resides; or

(ii) the offense involved the manufacture of amphetamine or

methamphetamine and the offense created a substantial

risk of harm to (I) human life other than a life described in

subdivision (D); or (II) the environment,

increase by 3 levels. If the resulting offense level is less than

level 27, increase to level 27.

(D) If the offense (i) involved the manufacture of amphetamine or

methamphetamine; and (ii) created a substantial risk of harm to

the life of a minor or an incompetent, increase by 6 levels. If the

resulting offense level is less than level 30, increase to level 30.

(15) If (A) the offense involved the cultivation of marihuana on state or

federal land or while trespassing on tribal or private land; and (B) the

defendant receives an adjustment under §3B1.1 (Aggravating Role),

increase by 2 levels.

(16) If the defendant receives an adjustment under §3B1.1 (Aggravating

Role) and the offense involved 1 or more of the following factors:

(A) (i) the defendant used fear, impulse, friendship, affection, or

some combination thereof to involve another individual in the

illegal purchase, sale, transport, or storage of controlled

substances, (ii) the individual received little or no compensation

from the illegal purchase, sale, transport, or storage of controlled

substances, and (iii) the individual had minimal knowledge of the

scope and structure of the enterprise;

(B) the defendant, knowing that an individual was (i) less than

18 years of age, (ii) 65 or more years of age, (iii) pregnant, or

(iv) unusually vulnerable due to physical or mental condition or

otherwise particularly susceptible to the criminal conduct,

distributed a controlled substance to that individual or involved

that individual in the offense;

controlled substance;

(D) the defendant engaged in witness intimidation, tampered with or

destroyed evidence, or otherwise obstructed justice in connection

with the investigation or prosecution of the offense;

(E) the defendant committed the offense as part of a pattern of

criminal conduct engaged in as a livelihood,

increase by 2 levels.

(17) If the defendant receives the 4-level (“minimal participant”) reduction

in §3B1.2(a) and the offense involved all of the following factors:

(A) the defendant was motivated by an intimate or familial

relationship or by threats or fear to commit the offense and was

otherwise unlikely to commit such an offense;

(B) the defendant received no monetary compensation from the

illegal purchase, sale, transport, or storage of controlled

substances; and

of the enterprise,

decrease by 2 levels.

(18) If the defendant meets the criteria set forth in subdivisions (1)–(5) of

subsection (a) of §5C1.2 (Limitation on Applicability of Statutory

Minimum Sentences in Certain Cases), decrease by 2 levels.

[Subsection (c) (Drug Quantity Table) is set forth after subsection (e) (Special

Instruction).]

(d) Cross References

(1) If a victim was killed under circumstances that would constitute

murder under 18 U.S.C. § 1111 had such killing taken place within

the territorial or maritime jurisdiction of the United States, apply

§2A1.1 (First Degree Murder) or §2A1.2 (Second Degree Murder), as

appropriate, if the resulting offense level is greater than that

determined under this guideline.

(2) If the defendant was convicted under 21 U.S.C. § 841(b)(7) (of

distributing a controlled substance with intent to commit a crime of

violence), apply §2X1.1 (Attempt, Solicitation, or Conspiracy) in

respect to the crime of violence that the defendant committed, or

attempted or intended to commit, if the resulting offense level is

greater than that determined above.

(e) Special Instruction

(1) If (A) subsection (d)(2) does not apply; and (B) the defendant

committed, or attempted to commit, a sexual offense against another

individual by distributing, with or without that individual’s

knowledge, a controlled substance to that individual, an adjustment

under §3A1.1(b)(1) shall apply.

CONTROLLED SUBSTANCES AND QUANTITY* BASE OFFENSE LEVEL

(1) ⚫ 90 KG or more of Heroin; Level 38

⚫ 450 KG or more of Cocaine;

⚫ 25.2 KG or more of Cocaine Base;

⚫ 90 KG or more of PCP, or 9 KG or more of PCP (actual);

⚫ 45 KG or more of Methamphetamine, or

4.5 KG or more of Methamphetamine (actual), or

4.5 KG or more of “Ice”;

⚫ 45 KG or more of Amphetamine, or

4.5 KG or more of Amphetamine (actual);

⚫ 900 G or more of LSD;

⚫ 36 KG or more of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] Propanamide);

⚫ 9 KG or more of a Fentanyl Analogue;

⚫ 90,000 KG or more of Marihuana;

⚫ 18,000 KG or more of Hashish;

⚫ 1,800 KG or more of Hashish Oil;

⚫ 90,000,000 units or more of Ketamine;

⚫ 90,000,000 units or more of Schedule I or II Depressants;

⚫ 5,625,000 units or more of Flunitrazepam;

⚫ 90,000 KG or more of Converted Drug Weight.

(2) ⚫ At least 30 KG but less than 90 KG of Heroin; Level 36

⚫ At least 150 KG but less than 450 KG of Cocaine;

⚫ At least 8.4 KG but less than 25.2 KG of Cocaine Base;

⚫ At least 30 KG but less than 90 KG of PCP, or

at least 3 KG but less than 9 KG of PCP (actual);

⚫ At least 15 KG but less than 45 KG of Methamphetamine, or

at least 1.5 KG but less than 4.5 KG of Methamphetamine (actual), or

at least 1.5 KG but less than 4.5 KG of “Ice”;

⚫ At least 15 KG but less than 45 KG of Amphetamine, or

at least 1.5 KG but less than 4.5 KG of Amphetamine (actual);

⚫ At least 300 G but less than 900 G of LSD;

⚫ At least 12 KG but less than 36 KG of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]

Propanamide);

⚫ At least 3 KG but less than 9 KG of a Fentanyl Analogue;

⚫ At least 30,000 KG but less than 90,000 KG of Marihuana;

⚫ At least 6,000 KG but less than 18,000 KG of Hashish;

⚫ At least 600 KG but less than 1,800 KG of Hashish Oil;

⚫ At least 30,000,000 units but less than 90,000,000 units of Ketamine;

⚫ At least 30,000,000 units but less than 90,000,000 units of Schedule I or II Depressants;

⚫ At least 1,875,000 units but less than 5,625,000 units of Flunitrazepam;

⚫ At least 30,000 KG but less than 90,000 KG of Converted Drug Weight.

(3) ⚫ At least 10 KG but less than 30 KG of Heroin; Level 34

⚫ At least 50 KG but less than 150 KG of Cocaine;

⚫ At least 2.8 KG but less than 8.4 KG of Cocaine Base;

⚫ At least 10 KG but less than 30 KG of PCP, or

at least 1 KG but less than 3 KG of PCP (actual);

⚫ At least 5 KG but less than 15 KG of Methamphetamine, or

at least 500 G but less than 1.5 KG of Methamphetamine (actual), or

at least 500 G but less than 1.5 KG of “Ice”;

⚫ At least 5 KG but less than 15 KG of Amphetamine, or

at least 500 G but less than 1.5 KG of Amphetamine (actual);

⚫ At least 100 G but less than 300 G of LSD;

⚫ At least 4 KG but less than 12 KG of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]

Propanamide);

⚫ At least 1 KG but less than 3 KG of a Fentanyl Analogue;

⚫ At least 10,000 KG but less than 30,000 KG of Marihuana;

⚫ At least 2,000 KG but less than 6,000 KG of Hashish;

⚫ At least 200 KG but less than 600 KG of Hashish Oil;

⚫ At least 10,000,000 but less than 30,000,000 units of Ketamine;

⚫ At least 10,000,000 but less than 30,000,000 units of Schedule I or II Depressants;

⚫ At least 625,000 but less than 1,875,000 units of Flunitrazepam;

⚫ At least 10,000 KG but less than 30,000 KG of Converted Drug Weight.

(4) ⚫ At least 3 KG but less than 10 KG of Heroin; Level 32

⚫ At least 15 KG but less than 50 KG of Cocaine;

⚫ At least 840 G but less than 2.8 KG of Cocaine Base;

⚫ At least 3 KG but less than 10 KG of PCP, or

at least 300 G but less than 1 KG of PCP (actual);

⚫ At least 1.5 KG but less than 5 KG of Methamphetamine, or

at least 150 G but less than 500 G of Methamphetamine (actual), or

at least 150 G but less than 500 G of “Ice”;

⚫ At least 1.5 KG but less than 5 KG of Amphetamine, or

at least 150 G but less than 500 G of Amphetamine (actual);

⚫ At least 30 G but less than 100 G of LSD;

⚫ At least 1.2 KG but less than 4 KG of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]

Propanamide);

⚫ At least 300 G but less than 1 KG of a Fentanyl Analogue;

⚫ At least 3,000 KG but less than 10,000 KG of Marihuana;

⚫ At least 600 KG but less than 2,000 KG of Hashish;

⚫ At least 60 KG but less than 200 KG of Hashish Oil;

⚫ At least 3,000,000 but less than 10,000,000 units of Ketamine;

⚫ At least 3,000,000 but less than 10,000,000 units of Schedule I or II Depressants;

⚫ At least 187,500 but less than 625,000 units of Flunitrazepam;

⚫ At least 3,000 KG but less than 10,000 KG of Converted Drug Weight.

(5) ⚫ At least 1 KG but less than 3 KG of Heroin; Level 30

⚫ At least 5 KG but less than 15 KG of Cocaine;

⚫ At least 280 G but less than 840 G of Cocaine Base;

⚫ At least 1 KG but less than 3 KG of PCP, or

at least 100 G but less than 300 G of PCP (actual);

⚫ At least 500 G but less than 1.5 KG of Methamphetamine, or

at least 50 G but less than 150 G of Methamphetamine (actual), or

at least 50 G but less than 150 G of “Ice”;

⚫ At least 500 G but less than 1.5 KG of Amphetamine, or

at least 50 G but less than 150 G of Amphetamine (actual);

⚫ At least 10 G but less than 30 G of LSD;

⚫ At least 400 G but less than 1.2 KG of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]

Propanamide);

⚫ At least 100 G but less than 300 G of a Fentanyl Analogue;

⚫ At least 1,000 KG but less than 3,000 KG of Marihuana;

⚫ At least 200 KG but less than 600 KG of Hashish;

⚫ At least 20 KG but less than 60 KG of Hashish Oil;

⚫ At least 1,000,000 but less than 3,000,000 units of Ketamine;

⚫ At least 1,000,000 but less than 3,000,000 units of Schedule I or II Depressants;

⚫ At least 62,500 but less than 187,500 units of Flunitrazepam;

⚫ At least 1,000 KG but less than 3,000 KG of Converted Drug Weight.

(6) ⚫ At least 700 G but less than 1 KG of Heroin; Level 28

⚫ At least 3.5 KG but less than 5 KG of Cocaine;

⚫ At least 196 G but less than 280 G of Cocaine Base;

⚫ At least 700 G but less than 1 KG of PCP, or

at least 70 G but less than 100 G of PCP (actual);

⚫ At least 350 G but less than 500 G of Methamphetamine, or

at least 35 G but less than 50 G of Methamphetamine (actual), or

at least 35 G but less than 50 G of “Ice”;

⚫ At least 350 G but less than 500 G of Amphetamine, or

at least 35 G but less than 50 G of Amphetamine (actual);

⚫ At least 7 G but less than 10 G of LSD;

⚫ At least 280 G but less than 400 G of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]

Propanamide);

⚫ At least 70 G but less than 100 G of a Fentanyl Analogue;

⚫ At least 700 KG but less than 1,000 KG of Marihuana;

⚫ At least 140 KG but less than 200 KG of Hashish;

⚫ At least 14 KG but less than 20 KG of Hashish Oil;

⚫ At least 700,000 but less than 1,000,000 units of Ketamine;

⚫ At least 700,000 but less than 1,000,000 units of Schedule I or II Depressants;

⚫ At least 43,750 but less than 62,500 units of Flunitrazepam;

⚫ At least 700 KG but less than 1,000 KG of Converted Drug Weight.

(7) ⚫ At least 400 G but less than 700 G of Heroin; Level 26

⚫ At least 2 KG but less than 3.5 KG of Cocaine;

⚫ At least 112 G but less than 196 G of Cocaine Base;

⚫ At least 400 G but less than 700 G of PCP, or

at least 40 G but less than 70 G of PCP (actual);

⚫ At least 200 G but less than 350 G of Methamphetamine, or

at least 20 G but less than 35 G of Methamphetamine (actual), or

at least 20 G but less than 35 G of “Ice”;

⚫ At least 200 G but less than 350 G of Amphetamine, or

at least 20 G but less than 35 G of Amphetamine (actual);

⚫ At least 4 G but less than 7 G of LSD;

⚫ At least 160 G but less than 280 G of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]

Propanamide);

⚫ At least 40 G but less than 70 G of a Fentanyl Analogue;

⚫ At least 400 KG but less than 700 KG of Marihuana;

⚫ At least 80 KG but less than 140 KG of Hashish;

⚫ At least 8 KG but less than 14 KG of Hashish Oil;

⚫ At least 400,000 but less than 700,000 units of Ketamine;

⚫ At least 400,000 but less than 700,000 units of Schedule I or II Depressants;

⚫ At least 25,000 but less than 43,750 units of Flunitrazepam;

⚫ At least 400 KG but less than 700 KG of Converted Drug Weight.

(8) ⚫ At least 100 G but less than 400 G of Heroin; Level 24

⚫ At least 500 G but less than 2 KG of Cocaine;

⚫ At least 28 G but less than 112 G of Cocaine Base;

⚫ At least 100 G but less than 400 G of PCP, or

at least 10 G but less than 40 G of PCP (actual);

⚫ At least 50 G but less than 200 G of Methamphetamine, or

at least 5 G but less than 20 G of Methamphetamine (actual), or

at least 5 G but less than 20 G of “Ice”;

⚫ At least 50 G but less than 200 G of Amphetamine, or

at least 5 G but less than 20 G of Amphetamine (actual);

⚫ At least 1 G but less than 4 G of LSD;

⚫ At least 40 G but less than 160 G of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]

Propanamide);

⚫ At least 10 G but less than 40 G of a Fentanyl Analogue;

⚫ At least 100 KG but less than 400 KG of Marihuana;

⚫ At least 20 KG but less than 80 KG of Hashish;

⚫ At least 2 KG but less than 8 KG of Hashish Oil;

⚫ At least 100,000 but less than 400,000 units of Ketamine;

⚫ At least 100,000 but less than 400,000 units of Schedule I or II Depressants;

⚫ At least 6,250 but less than 25,000 units of Flunitrazepam;

⚫ At least 100 KG but less than 400 KG of Converted Drug Weight.

(9) ⚫ At least 80 G but less than 100 G of Heroin; Level 22

⚫ At least 400 G but less than 500 G of Cocaine;

⚫ At least 22.4 G but less than 28 G of Cocaine Base;

⚫ At least 80 G but less than 100 G of PCP, or

at least 8 G but less than 10 G of PCP (actual);

⚫ At least 40 G but less than 50 G of Methamphetamine, or

at least 4 G but less than 5 G of Methamphetamine (actual), or

at least 4 G but less than 5 G of “Ice”;

⚫ At least 40 G but less than 50 G of Amphetamine, or

at least 4 G but less than 5 G of Amphetamine (actual);

⚫ At least 800 MG but less than 1 G of LSD;

⚫ At least 32 G but less than 40 G of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]

Propanamide);

⚫ At least 8 G but less than 10 G of a Fentanyl Analogue;

⚫ At least 80 KG but less than 100 KG of Marihuana;

⚫ At least 16 KG but less than 20 KG of Hashish;

⚫ At least 1.6 KG but less than 2 KG of Hashish Oil;

⚫ At least 80,000 but less than 100,000 units of Ketamine;

⚫ At least 80,000 but less than 100,000 units of Schedule I or II Depressants;

⚫ At least 5,000 but less than 6,250 units of Flunitrazepam;

⚫ At least 80 KG but less than 100 KG of Converted Drug Weight.

(10) ⚫ At least 60 G but less than 80 G of Heroin; Level 20

⚫ At least 300 G but less than 400 G of Cocaine;

⚫ At least 16.8 G but less than 22.4 G of Cocaine Base;

⚫ At least 60 G but less than 80 G of PCP, or

at least 6 G but less than 8 G of PCP (actual);

⚫ At least 30 G but less than 40 G of Methamphetamine, or

at least 3 G but less than 4 G of Methamphetamine (actual), or

at least 3 G but less than 4 G of “Ice”;

⚫ At least 30 G but less than 40 G of Amphetamine, or

at least 3 G but less than 4 G of Amphetamine (actual);

⚫ At least 600 MG but less than 800 MG of LSD;

⚫ At least 24 G but less than 32 G of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]

Propanamide);

⚫ At least 6 G but less than 8 G of a Fentanyl Analogue;

⚫ At least 60 KG but less than 80 KG of Marihuana;

⚫ At least 12 KG but less than 16 KG of Hashish;

⚫ At least 1.2 KG but less than 1.6 KG of Hashish Oil;

⚫ At least 60,000 but less than 80,000 units of Ketamine;

⚫ At least 60,000 but less than 80,000 units of Schedule I or II Depressants;

⚫ 60,000 units or more of Schedule III substances (except Ketamine);

⚫ At least 3,750 but less than 5,000 units of Flunitrazepam;

⚫ At least 60 KG but less than 80 KG of Converted Drug Weight.

(11) ⚫ At least 40 G but less than 60 G of Heroin; Level 18

⚫ At least 200 G but less than 300 G of Cocaine;

⚫ At least 11.2 G but less than 16.8 G of Cocaine Base;

⚫ At least 40 G but less than 60 G of PCP, or

at least 4 G but less than 6 G of PCP (actual);

⚫ At least 20 G but less than 30 G of Methamphetamine, or

at least 2 G but less than 3 G of Methamphetamine (actual), or

at least 2 G but less than 3 G of “Ice”;

⚫ At least 20 G but less than 30 G of Amphetamine, or

at least 2 G but less than 3 G of Amphetamine (actual);

⚫ At least 400 MG but less than 600 MG of LSD;

⚫ At least 16 G but less than 24 G of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]

Propanamide);

⚫ At least 4 G but less than 6 G of a Fentanyl Analogue;

⚫ At least 40 KG but less than 60 KG of Marihuana;

⚫ At least 8 KG but less than 12 KG of Hashish;

⚫ At least 800 G but less than 1.2 KG of Hashish Oil;

⚫ At least 40,000 but less than 60,000 units of Ketamine;

⚫ At least 40,000 but less than 60,000 units of Schedule I or II Depressants;

⚫ At least 40,000 but less than 60,000 units of Schedule III substances (except Ketamine);

⚫ At least 2,500 but less than 3,750 units of Flunitrazepam;

⚫ At least 40 KG but less than 60 KG of Converted Drug Weight.

(12) ⚫ At least 20 G but less than 40 G of Heroin; Level 16

⚫ At least 100 G but less than 200 G of Cocaine;

⚫ At least 5.6 G but less than 11.2 G of Cocaine Base;

⚫ At least 20 G but less than 40 G of PCP, or

at least 2 G but less than 4 G of PCP (actual);

⚫ At least 10 G but less than 20 G of Methamphetamine, or

at least 1 G but less than 2 G of Methamphetamine (actual), or

at least 1 G but less than 2 G of “Ice”;

⚫ At least 10 G but less than 20 G of Amphetamine, or

at least 1 G but less than 2 G of Amphetamine (actual);

⚫ At least 200 MG but less than 400 MG of LSD;

⚫ At least 8 G but less than 16 G of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]

Propanamide);

⚫ At least 2 G but less than 4 G of a Fentanyl Analogue;

⚫ At least 20 KG but less than 40 KG of Marihuana;

⚫ At least 5 KG but less than 8 KG of Hashish;

⚫ At least 500 G but less than 800 G of Hashish Oil;

⚫ At least 20,000 but less than 40,000 units of Ketamine;

⚫ At least 20,000 but less than 40,000 units of Schedule I or II Depressants;

⚫ At least 20,000 but less than 40,000 units of Schedule III substances (except Ketamine);

⚫ At least 1,250 but less than 2,500 units of Flunitrazepam;

⚫ At least 20 KG but less than 40 KG of Converted Drug Weight.

(13) ⚫ At least 10 G but less than 20 G of Heroin; Level 14

⚫ At least 50 G but less than 100 G of Cocaine;

⚫ At least 2.8 G but less than 5.6 G of Cocaine Base;

⚫ At least 10 G but less than 20 G of PCP, or

at least 1 G but less than 2 G of PCP (actual);

⚫ At least 5 G but less than 10 G of Methamphetamine, or

at least 500 MG but less than 1 G of Methamphetamine (actual), or

at least 500 MG but less than 1 G of “Ice”;

⚫ At least 5 G but less than 10 G of Amphetamine, or

at least 500 MG but less than 1 G of Amphetamine (actual);

⚫ At least 100 MG but less than 200 MG of LSD;

⚫ At least 4 G but less than 8 G of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl]

Propanamide);

⚫ At least 1 G but less than 2 G of a Fentanyl Analogue;

⚫ At least 10 KG but less than 20 KG of Marihuana;

⚫ At least 2 KG but less than 5 KG of Hashish;

⚫ At least 200 G but less than 500 G of Hashish Oil;

⚫ At least 10,000 but less than 20,000 units of Ketamine;

⚫ At least 10,000 but less than 20,000 units of Schedule I or II Depressants;

⚫ At least 10,000 but less than 20,000 units of Schedule III substances (except Ketamine);

⚫ At least 625 but less than 1,250 units of Flunitrazepam;

⚫ At least 10 KG but less than 20 KG of Converted Drug Weight.

(14) ⚫ Less than 10 G of Heroin; Level 12

⚫ Less than 50 G of Cocaine;

⚫ Less than 2.8 G of Cocaine Base;

⚫ Less than 10 G of PCP, or

less than 1 G of PCP (actual);

⚫ Less than 5 G of Methamphetamine, or

less than 500 MG of Methamphetamine (actual), or

less than 500 MG of “Ice”;

⚫ Less than 5 G of Amphetamine, or

less than 500 MG of Amphetamine (actual);

⚫ Less than 100 MG of LSD;

⚫ Less than 4 G of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] Propanamide);

⚫ Less than 1 G of a Fentanyl Analogue;

⚫ At least 5 KG but less than 10 KG of Marihuana;

⚫ At least 1 KG but less than 2 KG of Hashish;

⚫ At least 100 G but less than 200 G of Hashish Oil;

⚫ At least 5,000 but less than 10,000 units of Ketamine;

⚫ At least 5,000 but less than 10,000 units of Schedule I or II Depressants;

⚫ At least 5,000 but less than 10,000 units of Schedule III substances (except Ketamine);

⚫ At least 312 but less than 625 units of Flunitrazepam;

⚫ 80,000 units or more of Schedule IV substances (except Flunitrazepam);

⚫ At least 5 KG but less than 10 KG of Converted Drug Weight.

(15) ⚫ At least 2.5 KG but less than 5 KG of Marihuana; Level 10

⚫ At least 500 G but less than 1 KG of Hashish;

⚫ At least 50 G but less than 100 G of Hashish Oil;

⚫ At least 2,500 but less than 5,000 units of Ketamine;

⚫ At least 2,500 but less than 5,000 units of Schedule I or II Depressants;

⚫ At least 2,500 but less than 5,000 units of Schedule III substances (except Ketamine);

⚫ At least 156 but less than 312 units of Flunitrazepam;

⚫ At least 40,000 but less than 80,000 units of Schedule IV substances (except

Flunitrazepam);

⚫ At least 2.5 KG but less than 5 KG of Converted Drug Weight.

(16) ⚫ At least 1 KG but less than 2.5 KG of Marihuana; Level 8

⚫ At least 200 G but less than 500 G of Hashish;

⚫ At least 20 G but less than 50 G of Hashish Oil;

⚫ At least 1,000 but less than 2,500 units of Ketamine;

⚫ At least 1,000 but less than 2,500 units of Schedule I or II Depressants;

⚫ At least 1,000 but less than 2,500 units of Schedule III substances (except Ketamine);

⚫ Less than 156 units of Flunitrazepam;

⚫ At least 16,000 but less than 40,000 units of Schedule IV substances (except

Flunitrazepam);

⚫ 160,000 units or more of Schedule V substances;

⚫ At least 1 KG but less than 2.5 KG of Converted Drug Weight.

(17) ⚫ Less than 1 KG of Marihuana; Level 6

⚫ Less than 200 G of Hashish;

⚫ Less than 20 G of Hashish Oil;

⚫ Less than 1,000 units of Ketamine;

⚫ Less than 1,000 units of Schedule I or II Depressants;

⚫ Less than 1,000 units of Schedule III substances (except Ketamine);

⚫ Less than 16,000 units of Schedule IV substances (except Flunitrazepam);

⚫ Less than 160,000 units of Schedule V substances;

⚫ Less than 1 KG of Converted Drug Weight.

*Notes to Drug Quantity Table:

(A) Unless otherwise specified, the weight of a controlled substance set forth in the table

refers to the entire weight of any mixture or substance containing a detectable

amount of the controlled substance. If a mixture or substance contains more than

one controlled substance, the weight of the entire mixture or substance is assigned

to the controlled substance that results in the greater offense level.

(B) The terms “PCP (actual)”, “Amphetamine (actual)”, and “Methamphetamine

(actual)” refer to the weight of the controlled substance, itself, contained in the

mixture or substance. For example, a mixture weighing 10 grams containing PCP at

50% purity contains 5 grams of PCP (actual). In the case of a mixture or substance

containing PCP, amphetamine, or methamphetamine, use the offense level

determined by the entire weight of the mixture or substance, or the offense level

determined by the weight of the PCP (actual), amphetamine (actual), or

methamphetamine (actual), whichever is greater.

The terms “Hydrocodone (actual)” and “Oxycodone (actual)” refer to the weight

of the controlled substance, itself, contained in the pill, capsule, or mixture.

d-methamphetamine hydrochloride of at least 80% purity.

(D) “Cocaine base,” for the purposes of this guideline, means “crack.” “Crack” is the

street name for a form of cocaine base, usually prepared by processing cocaine

hydrochloride and sodium bicarbonate, and usually appearing in a lumpy, rocklike

form.

(E) In the case of an offense involving marihuana plants, treat each plant, regardless of

sex, as equivalent to 100 grams of marihuana. Provided, however, that if the actual

weight of the marihuana is greater, use the actual weight of the marihuana.

(F) In the case of Schedule I or II Depressants (except gamma-hydroxybutyric acid),

Schedule III substances, Schedule IV substances, and Schedule V substances, one

“unit” means one pill, capsule, or tablet. If the substance (except gamma-

hydroxybutyric acid) is in liquid form, one “unit” means 0.5 milliliters. For an

anabolic steroid that is not in a pill, capsule, tablet, or liquid form (e.g., patch, topical

cream, aerosol), the court shall determine the base offense level using a reasonable

estimate of the quantity of anabolic steroid involved in the offense. In making a

reasonable estimate, the court shall consider that each 25 milligrams of an anabolic

steroid is one “unit”.

(G) In the case of LSD on a carrier medium (e.g., a sheet of blotter paper), do not use the

weight of the LSD/carrier medium. Instead, treat each dose of LSD on the carrier

medium as equal to 0.4 milligrams of LSD for the purposes of the Drug Quantity

Table.

(H) Hashish, for the purposes of this guideline, means a resinous substance of cannabis

that includes (i) one or more of the tetrahydrocannabinols (as listed in 21 C.F.R.

§ 1308.11(d)(31)), (ii) at least two of the following: cannabinol, cannabidiol, or

cannabichromene, and (iii) fragments of plant material (such as cystolith fibers).

(I) Hashish oil, for the purposes of this guideline, means a preparation of the soluble

cannabinoids derived from cannabis that includes (i) one or more of the

tetrahydrocannabinols (as listed in 21 C.F.R. § 1308.11(d)(31)), (ii) at least two of

the following: cannabinol, cannabidiol, or cannabichromene, and (iii) is essentially

free of plant material (e.g., plant fragments). Typically, hashish oil is a viscous, dark

colored oil, but it can vary from a dry resin to a colorless liquid.

(J) Fentanyl analogue, for the purposes of this guideline, means any substance

(including any salt, isomer, or salt of isomer thereof), whether a controlled substance

or not, that has a chemical structure that is similar to fentanyl (N-phenyl-N-[1-(2-

phenylethyl)-4-piperidinyl] propanamide).

(K) The term “Converted Drug Weight,” for purposes of this guideline, refers to a

nominal reference designation that is used as a conversion factor in the Drug

Conversion Tables set forth in the Commentary below, to determine the offense level

for controlled substances that are not specifically referenced in the Drug Quantity

Table or when combining differing controlled substances.

* * *

PROPOSED AMENDMENT: SEXUAL ABUSE OFFENSES

Synopsis of Proposed Amendment: The proposed amendment contains two parts (Part A

and Part B). The Commission is considering whether to promulgate either or both of these

parts, as they are not mutually exclusive. Part A of the proposed amendment responds to

recently enacted legislation. See U.S. Sent’g Comm’n, “Notice of Final Priorities,” 87 FR

67756 (Nov. 9, 2022) (identifying as a priority “[i]mplementation of any legislation

warranting Commission action”). Part B of the proposed amendment is a result of the

Commission’s “[c]onsideration of possible amendments to the Guidelines Manual to address

sexual abuse or contact offenses against a victim in the custody, care, or supervision of, and

committed by law enforcement or correctional personnel.” Id.

(A) Violence Against Women Act Reauthorization Act of 2022

Part A of the proposed amendment responds to title XII of the Violence Against Women Act

Reauthorization Act of 2022 (“the Act”). The Act is part of the Consolidated Appropriations

Act, 2022, Pub. L. 117–103 (2022). It created two new offenses concerning sexual

misconduct while committing civil rights offenses and sexual abuse of an individual in

federal custody.

First, the Act created a new offense at 18 U.S.C. § 250 (Penalties for civil rights offenses

involving sexual misconduct). New section 250(a) prohibits any person from engaging in, or

causing another to engage in, sexual misconduct while committing a civil rights offense

under chapter 13 (Civil Rights) of part I (Crimes) of title 18, United States Code, or an

offense under section 901 of the Fair Housing Act (42 U.S.C. § 3631). The statute does not

define “sexual misconduct,” but new section 250(b) delineates different maximum statutory

terms of imprisonment for different degrees of sexual misconduct, ranging from two years

to any term of years or life. The maximum penalties are: (1) any term of years or life if the

offense involved aggravated sexual abuse, as defined in 18 U.S.C. § 2241, or sexual abuse,

as defined in 18 U.S.C. § 2242, or any attempts to commit such conduct; (2) any term of

years or life if the offense involved abusive sexual contact of a child who has not attained

the age of 16, of the type prohibited by 18 U.S.C. § 2244(a)(5); (3) 40 years if the offense

involved a sexual act, as defined in 18 U.S.C. § 2246, without the other person’s permission

and the sexual act does not amount to sexual abuse or aggravated sexual abuse;

(4) 10 years if the offense involved abusive sexual contact of the type prohibited by

18 U.S.C. § 2244(a)(1) or (b) (excluding abusive sexual contact through the clothing), with

an enhanced maximum penalty of 30 years if such abusive sexual contact involved a child

under the age of 12; (5) 3 years if the offense involved abusive sexual contact of the type

prohibited by 18 U.S.C. § 2244(a)(2), with an enhanced maximum penalty of 20 years if

such abusive sexual contact involved a child under the age of 12; (6) 2 years if the offense

involved abusive sexual contact through the clothing of the type prohibited by 18 U.S.C.

§ 2244(a)(3), (a)(4), or (b), with an enhanced maximum penalty of 10 years if such abusive

sexual contact through the clothing involved a child under the age of 12.

Second, the Act amended 18 U.S.C. § 2243 and created a new offense at subsection (c). The

new section 2243(c) prohibits an individual, while acting in their capacity as a federal law

enforcement officer, from knowingly engaging in a sexual act with an individual who is

under arrest, under supervision, in detention, or in federal custody. The statutory

maximum term of imprisonment for the offense is 15 years, which is the same maximum

penalty for offenses under sections 2243(a) (prohibiting knowingly engaging in a sexual act

with a minor who had attained the age of twelve but not the age of sixteen and is at least

four years younger than the person so engaging) and 2243(b) (prohibiting knowingly

engaging in a sexual act with a ward in official detention (including in a federal prison or

any prison, institution, or facility where people are held in custody by the direction of, or

pursuant to a contract or agreement with, any federal department or agency) and under the

custodial, supervisory, or disciplinary authority of the person so engaging).

The Act also included a provision defining “federal law enforcement officer” at 18 U.S.C.

§ 2246(7) as having the meaning given the term in 18 U.S.C. § 115 (i.e., “any officer, agent,

or employee of the United States authorized by law or by a Government agency to engage in

or supervise the prevention, detection, investigation, or prosecution of any violation of

Federal criminal law.”). In addition, the Act amended 18 U.S.C. § 2244 (Abusive sexual

contact) to add a new penalty provision at subsection (a)(6) stating any person that

knowingly engages in or causes sexual contact with or by another person, if doing so would

violate new section 2243(c), would face a maximum statutory term of imprisonment of two

years.

Part A of the proposed amendment would amend Appendix A (Statutory Index) to reference

offenses under 18 U.S.C. § 250 to §2H1.1 (Offenses Involving Individual Rights), and

offenses under 18 U.S.C. § 2243(c) to §2A3.3 (Criminal Sexual Abuse of a Ward or Attempt

to Commit Such Acts). Part A of the proposed amendment would also amend the

Commentary to §§2A3.3 and 2H1.1 to reflect that these statutes are referenced to these

guidelines. In addition, it would amend the title of §2A3.3 to add “Criminal Sexual Abuse of

an Individual in Federal Custody.”

(B) Sexual Abuse Offenses Committed by Law Enforcement and Correctional

Personnel

Part B of the proposed amendment addresses 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. In its annual letter to the

Commission, the Department of Justice urged the Commission to consider amending the

Guidelines Manual to better account for such sexual abuse offenses, including offenses

under 18 U.S.C. § 2243(b) and the offense conduct covered by the new statute at 18 U.S.C.

§ 2243(c) (discussed in Part A of the proposed amendment). According to the Department of

Justice, the provisions of the guideline applicable to such offenses, §2A3.3 (Criminal Sexual

Abuse of a Ward or Attempt to Commit Such Acts), do not sufficiently account for the

severity of the conduct in such offenses, nor provide adequate penalties in accordance with

the statutory maximum terms of imprisonment provided for these offenses.

Part B of the proposed amendment would amend §2A3.3 in several ways to address these

concerns. First, it would increase the base offense level of the guideline from 14 to 18.

Second, Part B of the proposed amendment would address the presence of aggravating

factors in sexual abuse offenses, such as causing serious bodily injury and the use or threat

of force, in the same way §2A3.2 (Criminal Sexual Abuse of a Minor Under the Age of

Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts) currently does, by

providing a cross reference to §2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal

Sexual Abuse) for cases where the offense involved criminal sexual abuse or attempt to

commit criminal sexual abuse (as defined in 18 U.S.C. § 2241 or § 2242).

Proposed Amendment:

(A) Violence Against Women Act Reauthorization Act of 2022

APPENDIX A

STATUTORY INDEX

* * *

18 U.S.C. § 249 2H1.1

18 U.S.C. § 250 2H1.1

18 U.S.C. § 281 2C1.3

* * *

18 U.S.C. § 2243(b) 2A3.3

18 U.S.C. § 2243(c) 2A3.3

18 U.S.C. § 2244 2A3.4

* * *

§2A3.3. Criminal Sexual Abuse of a Ward or Attempt to Commit Such Acts; Criminal

Sexual Abuse of an Individual in Federal Custody

(a) Base Offense Level: 14

(b) Specific Offense Characteristics

(1) If the offense involved the knowing misrepresentation of a

participant’s identity to persuade, induce, entice, or coerce a minor to

engage in prohibited sexual conduct, increase by 2 levels.

(2) If a computer or an interactive computer service was used to

persuade, induce, entice, or coerce a minor to engage in prohibited

sexual conduct, increase by 2 levels.

Commentary

Statutory Provision: 18 U.S.C. § 2243(b), 2243(c). For additional statutory provision(s),

see Appendix A (Statutory Index).

Application Notes:

1. Definitions.—For purposes of this guideline:

“Computer” has the meaning given that term in 18 U.S.C. § 1030(e)(1).

“Interactive computer service” has the meaning given that term in section 230(e)(2) of the

Communications Act of 1934 (47 U.S.C. § 230(f)(2)).

“Minor” means (A) an individual who had not attained the age of 18 years; (B) an individual,

whether fictitious or not, who a law enforcement officer represented to a participant (i) had not

attained the age of 18 years; and (ii) could be provided for the purposes of engaging in sexually

explicit conduct; or (C) an undercover law enforcement officer who represented to a participant

that the officer had not attained the age of 18 years.

“Participant” has the meaning given that term in Application Note 1 of the Commentary to

§3B1.1 (Aggravating Role).

“Prohibited sexual conduct” has the meaning given that term in Application Note 1 of the

Commentary to §2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse).

“Ward” means a person in official detention under the custodial, supervisory, or disciplinary

authority of the defendant.

2. Application of Subsection (b)(1).—The enhancement in subsection (b)(1) applies in cases

involving the misrepresentation of a participant’s identity to persuade, induce, entice, or coerce

a minor to engage in prohibited sexual conduct. Subsection (b)(1) is intended to apply only to

misrepresentations made directly to a minor or to a person who exercises custody, care, or

supervisory control of the minor.

The misrepresentation to which the enhancement in subsection (b)(1) may apply includes

misrepresentation of a participant’s name, age, occupation, gender, or status, as long as the

misrepresentation was made with the intent to persuade, induce, entice, or coerce a minor to

engage in prohibited sexual conduct. Accordingly, use of a computer screen name, without such

intent, would not be a sufficient basis for application of the enhancement.

3. Application of Subsection (b)(2).—Subsection (b)(2) provides an enhancement if a computer

or an interactive computer service was used to persuade, induce, entice, or coerce a minor to

engage in prohibited sexual conduct. Subsection (b)(2) is intended to apply only to the use of a

computer or an interactive computer service to communicate directly with a minor or with a

person who exercises custody, care, or supervisory control of the minor.

4. Inapplicability of §3B1.3.—Do not apply §3B1.3 (Abuse of Position of Trust or Use of Special

Skill).

* * *

§2H1.1. Offenses Involving Individual Rights

(a) Base Offense Level (Apply the Greatest):

(1) the offense level from the offense guideline applicable to any

underlying offense;

(2) 12, if the offense involved two or more participants;

(3) 10, if the offense involved (A) the use or threat of force against a

person; or (B) property damage or the threat of property damage; or

(4) 6, otherwise.

(b) Specific Offense Characteristic

(1) If (A) the defendant was a public official at the time of the offense; or

(B) the offense was committed under color of law, increase by 6 levels.

Commentary

Statutory Provisions: 18 U.S.C. §§ 241, 242, 245(b), 246, 247, 248, 249,246–250, 1091; 42 U.S.C.

§ 3631.

Application Notes:

1. “Offense guideline applicable to any underlying offense” means the offense guideline

applicable to any conduct established by the offense of conviction that constitutes an offense

under federal, state, or local law (other than an offense that is itself covered under Chapter Two,

Part H, Subpart 1).

In certain cases, conduct set forth in the count of conviction may constitute more than one

underlying offense (e.g., two instances of assault, or one instance of assault and one instance of

arson). In such cases, use the following comparative procedure to determine the applicable base

offense level: (i) determine the underlying offenses encompassed within the count of conviction

as if the defendant had been charged with a conspiracy to commit multiple offenses.

See Application Note 4 of §1B1.2 (Applicable Guidelines); (ii) determine the Chapter Two offense

level (i.e., the base offense level, specific offense characteristics, cross references, and special

instructions) for each such underlying offense; and (iii) compare each of the Chapter Two offense

levels determined above with the alternative base offense level under subsection (a)(2), (3), or (4).

The determination of the applicable alternative base offense level is to be based on the entire

conduct underlying the count of conviction (i.e., the conduct taken as a whole). Use the alternative

base offense level only if it is greater than each of the Chapter Two offense levels determined

above. Otherwise, use the Chapter Two offense levels for each of the underlying offenses (with

each underlying offense treated as if contained in a separate count of conviction). Then apply

subsection (b) to the alternative base offense level, or to the Chapter Two offense levels for each

of the underlying offenses, as appropriate.

2. “Participant” is defined in the Commentary to §3B1.1 (Aggravating Role).

3. The burning or defacement of a religious symbol with an intent to intimidate shall be deemed to

involve the threat of force against a person for the purposes of subsection (a)(3)(A).

4. If the finder of fact at trial or, in the case of a plea of guilty or nolo contendere, the court at

sentencing determines beyond a reasonable doubt that the defendant intentionally selected any

victim or any property as the object of the offense because of the actual or perceived race, color,

religion, national origin, ethnicity, gender, gender identity, disability, or sexual orientation of

any person, an additional 3-level enhancement from §3A1.1(a) will apply. An adjustment from

§3A1.1(a) will not apply, however, if a 6-level adjustment from §2H1.1(b) applies. See §3A1.1(c).

5. If subsection (b)(1) applies, do not apply §3B1.3 (Abuse of Position of Trust or Use of Special

Skill).

* * *

(B) Sexual Abuse Offenses Committed by Law Enforcement and Correctional

Personnel

§2A3.3. Criminal Sexual Abuse of a Ward or Attempt to Commit Such Acts

(a) Base Offense Level: 1418

(b) Specific Offense Characteristics

(1) If the offense involved the knowing misrepresentation of a

participant’s identity to persuade, induce, entice, or coerce a minor to

engage in prohibited sexual conduct, increase by 2 levels.

(2) If a computer or an interactive computer service was used to

persuade, induce, entice, or coerce a minor to engage in prohibited

sexual conduct, increase by 2 levels.

(1) If the offense involved criminal sexual abuse or attempt to commit

criminal sexual abuse (as defined in 18 U.S.C. § 2241 or § 2242), apply

§2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual

Abuse). If the victim had not attained the age of 12 years, §2A3.1 shall

apply, regardless of the “consent” of the victim.

Commentary

Statutory Provision: 18 U.S.C. § 2243(b). For additional statutory provision(s), see Appendix A

(Statutory Index).