AMENDMENT 441
Section 1B1.8(b) is amended in subdivision (3) by deleting "or" immediately following the semicolon; in subdivision (4) by deleting the period at the end and inserting in lieu thereof "; or"; and by inserting the following additional subdivision:
"(5) in determining whether, or to what extent, a downward departure from the guidelines is warranted pursuant to a government motion under §5K1.1 (Substantial Assistance to Authorities).".
The Commentary to §1B1.8 captioned "Application Notes" is amended in Note 1 by deleting the third sentence as follows:
"Although this guideline, consistent with the general structure of these guidelines, affects only the determination of the guideline range, the policy of the Commission is that where a defendant as a result of a cooperation agreement with the government to assist in the investigation or prosecution of other offenders reveals information that implicates him in unlawful conduct not already known to the government, such defendant should not be subject to an increased sentence by virtue of that cooperation where the government agreed that the information revealed would not be used for such purpose.",
and inserting in lieu thereof:
"Although the guideline itself affects only the determination of the guideline range, the policy of the Commission, as a corollary, is that information prohibited from being used to determine the applicable guideline range shall not be used to increase the defendant’s sentence above the applicable guideline range by upward departure. In contrast, subsection (b)(5) provides that consideration of such information is appropriate in determining whether, and to what extent, a downward departure is warranted pursuant to a government motion under §5K1.1 (Substantial Assistance to Authorities); e.g., a court may refuse to depart below the applicable guideline range on the basis of such information.".
The Commentary to §1B1.8 captioned "Application Notes" is amended in Note 3 in the second sentence by deleting:
"is governed by the provisions of Rule 11 of the Federal Rules of Criminal Procedure and Rule 410",
and inserting in lieu thereof:
"in a sentencing proceeding is restricted by Rule 11(e)(6) (Inadmissibility of Pleas, Plea Discussions, and Related Statements) of the Federal Rules of Criminal Procedure and Rule 410 (Inadmissibility of Pleas, Plea Discussions, and Related Statements)".
The Commentary to §1B1.8 captioned "Application Notes" is amended in Note 5 in the second sentence by deleting "repeats" and inserting in lieu thereof "provides".
Reason for Amendment: This amendment clarifies the operation of this guideline. Information protected by this guideline may not be used to determine the applicable guideline range. An upward departure on the basis of such information would be contrary to the Commission’s policy (and, consequently, would be appealable under 18 U.S.C. § 3742(a)(2) and (3). See Williams v. United States, 112 S.Ct. 1112 (1992)). In contrast, the use of information covered by this guideline is appropriate in considering whether, and to what extent, a downward departure under §5K1.1 (Substantial Assistance to Authorities) is appropriate. In addition, this amendment makes minor editorial improvements.
Effective Date: The effective date of this amendment is November 1, 1992.