AMENDMENT 485
The Commentary to §2D1.1 captioned "Application Notes" is amended by inserting the following additional note:
"16. Where (A) the amount of the controlled substance for which the defendant is accountable under §1B1.3 (Relevant Conduct) results in a base offense level greater than 36, (B) the court finds that this offense level overrepresents the defendant’s culpability in the criminal activity, and (C) the defendant qualifies for a mitigating role adjustment under §3B1.2 (Mitigating Role), a downward departure may be warranted. The court may depart to a sentence no lower than the guideline range that would have resulted if the defendant’s Chapter Two offense level had been offense level 36. Provided, that a defendant is not eligible for a downward departure under this provision if the defendant:
(a) has one or more prior felony convictions for a crime of violence or a controlled substance offense as defined in §4B1.2 (Definitions of Terms Used in Section 4B1.1);
(b) qualifies for an adjustment under §3B1.3 (Abuse of Position of Trust or Use of Special Skill);
(c) possessed or induced another participant to use or possess a firearm in the offense;
(d) had decision-making authority;
(e) owned the controlled substance or financed any part of the offense; or
(f) sold the controlled substance or played a substantial part in negotiating the terms of the sale.
Example: A defendant, who the court finds meets the criteria for a downward departure under this provision, has a Chapter Two offense level of 40, a 2-level reduction for a minor role from §3B1.2, and a 3-level reduction for acceptance of responsibility from §3E1.1. His final offense level is 35. If the defendant’s Chapter Two offense level had been 36, the 2-level reduction for a minor role and 3-level reduction for acceptance of responsibility would have resulted in a final offense level of 31. Therefore, under this provision, a downward departure not to exceed 4 levels (from level 35 to level 31) would be authorized.".
Reason for Amendment: Where a defendant’s base offense level is greater than level 36 and the defendant had a minimal or minor role in the offense (and meets certain other qualifications), the quantity of the controlled substance for which the defendant is held accountable under §1B1.3 (Relevant Conduct) may overrepresent the defendant’s culpability in the criminal activity. To address this issue, this amendment adds an application note to §2D1.1 that authorizes a downward departure in the specific circumstances described and sets forth the extent of a departure authorized on this basis.
Effective Date: The effective date of this amendment is November 1, 1993.