AMENDMENT 503
The Commentary to §1B1.3 captioned "Application Notes" is amended in Note 2 by inserting the following additional paragraph as the eighth paragraph:
"A defendant’s relevant conduct does not include the conduct of members of a conspiracy prior to the defendant joining the conspiracy, even if the defendant knows of that conduct (e.g., in the case of a defendant who joins an ongoing drug distribution conspiracy knowing that it had been selling two kilograms of cocaine per week, the cocaine sold prior to the defendant joining the conspiracy is not included as relevant conduct in determining the defendant’s offense level). The Commission does not foreclose the possibility that there may be some unusual set of circumstances in which the exclusion of such conduct may not adequately reflect the defendant’s culpability; in such a case, an upward departure may be warranted.".
The Commentary to §1B1.3 captioned "Application Notes" is amended in Note 9(B) by deleting "and the time interval between the offenses" and inserting in lieu thereof:
", the regularity (repetitions) of the offenses, and the time interval between the offenses. When one of the above factors is absent, a stronger presence of at least one of the other factors is required. For example, where the conduct alleged to be relevant is relatively remote to the offense of conviction, a stronger showing of similarity or regularity is necessary to compensate for the absence of temporal proximity".
Reason for Amendment: This amendment clarifies the operation of §1B1.3 with respect to the defendant’s accountability for the actions of other conspirators prior to the defendant joining the conspiracy. The amendment is in accord with the rule stated in recent caselaw. See, e.g., United States v. Carreon, 11 F.3d 1225 (5th Cir. 1994); United States v. Petty, 982 F.2d 1374, 1377 (9th Cir. 1993); United States v. O’Campo, 973 F.2d 1015, 1026 (1st Cir. 1992). Cf. United States v. Miranda-Ortiz, 926 F.2d 172, 178 (2d Cir. 1991); United States v. Edwards, 945 F.2d 1387, 1393 (7th Cir. 1991)) (applying earlier versions of §1B1.3). In addition, this amendment adds a well-phrased formulation, developed by the Ninth Circuit in United States v. Hahn, 960 F.2d 903 (9th Cir. 1992), addressing the circumstances in which multiple acts constitute the "same course of conduct."
Effective Date: The effective date of this amendment is November 1, 1994.