AMENDMENT 568
Section §4B1.2(1) is amended by deleting "(1)" and inserting in lieu thereof "(a)"; by inserting a comma after "law" and after "one year"; by deleting "(i)" and inserting in lieu thereof "(1)"; and by deleting "(ii)" and inserting in lieu thereof "(2)".
Section §4B1.2(2) is amended by deleting "(2)" and inserting in lieu thereof "(b)"; by deleting "a" after "under"; and by deleting "prohibiting" and inserting in lieu thereof ", punishable by imprisonment for a term exceeding one year, that prohibits".
Section §4B1.2(3) is amended by deleting "(3)" and inserting in lieu thereof "(c)"; by deleting "(A)" and inserting in lieu thereof "(1)"; and by deleting "(B)" and inserting in lieu thereof "(2)".
The Commentary to §4B1.2 captioned "Application Notes" is amended in Note 1 by inserting at the beginning "For purposes of this guideline—"; by deleting "The terms ‘crime" and inserting in lieu thereof "‘Crime";
and by inserting at the end the following new paragraphs:
"‘Crime of violence’ includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as ‘crimes of violence’ if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another.
‘Crime of violence’ does not include the offense of unlawful possession of a firearm by a felon. Where the instant offense of conviction is the unlawful possession of a firearm by a felon, §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) provides an increase in offense level if the defendant had one or more prior felony convictions for a crime of violence or controlled substance offense; and, if the defendant is sentenced under the provisions of 18 U.S.C. § 924(e), §4B1.4 (Armed Career Criminal) will apply.
Unlawfully possessing a listed chemical with intent to manufacture a controlled substance (21 U.S.C. § 841(d)(1)) is a ‘controlled substance offense.’
Unlawfully possessing a prohibited flask or equipment with intent to manufacture a controlled substance (21 U.S.C. § 843(a)(6)) is a ‘controlled substance offense.’
Maintaining any place for the purpose of facilitating a drug offense (21 U.S.C. § 856) is a ‘controlled substance offense’ if the offense of conviction established that the underlying offense (the offense facilitated) was a ‘controlled substance offense.’
Using a communications facility in committing, causing, or facilitating a drug offense (21 U.S.C. § 843(b)) is a ‘controlled substance offense’ if the offense of conviction established that the underlying offense (the offense committed, caused, or facilitated) was a ‘controlled substance offense.’
Possessing a firearm during and in relation to a crime of violence or drug offense (18 U.S.C. § 924(c)) is a ‘crime of violence’ or ‘controlled substance offense’ if the offense of conviction established that the underlying offense (the offense during and in relation to which the firearm was carried or possessed) was a ‘crime of violence’ or ‘controlled substance offense.’ (Note that if the defendant also was convicted of the underlying offense, the two convictions will be treated as related cases under §4A1.2 (Definitions and Instruction for Computing Criminal History)).
‘Prior felony conviction’ means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed. A conviction for an offense committed at age eighteen or older is an adult conviction. A conviction for an offense committed prior to age eighteen is an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted (e.g., a federal conviction for an offense committed prior to the defendant’s eighteenth birthday is an adult conviction if the defendant was expressly proceeded against as an adult).".
The Commentary to §4B1.2 captioned "Application Notes" is amended by deleting Notes 2 and 3 as follows:
"2. ‘Crime of violence’ includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included where (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another. Under this section, the conduct of which the defendant was convicted is the focus of inquiry.
The term ‘crime of violence’ does not include the offense of unlawful possession of a firearm by a felon. Where the instant offense of conviction is the unlawful possession of a firearm by a felon, §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) provides an increase in offense level if the defendant has one or more prior felony convictions for a crime of violence or controlled substance offense; and, if the defendant is sentenced under the provisions of 18 U.S.C. § 924(e), §4B1.4 (Armed Career Criminal) will apply.
3. ‘Prior felony conviction’ means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed. A conviction for an offense committed at age eighteen or older is an adult conviction. A conviction for an offense committed prior to age eighteen is an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted (e.g., a federal conviction for an offense committed prior to the defendant’s eighteenth birthday is an adult conviction if the defendant was expressly proceeded against as an adult).";
and by inserting after Note 1 the following new Note 2:
"2. Section 4B1.1 (Career Offender) expressly provides that the instant and prior offenses must be crimes of violence or controlled substance offenses of which the defendant was convicted. Therefore, in determining whether an offense is a crime of violence or controlled substance for the purposes of §4B1.1 (Career Offender), the offense of conviction (i.e., the conduct of which the defendant was convicted) is the focus of inquiry.".
The Commentary to §4B1.2 captioned "Application Notes" is amended by redesignating Note 4 as Note 3.
The Commentary to §2K1.3 captioned "Application Notes" is amended in Note 2 by deleting "Note 3" and inserting in lieu thereof "Note 1".
The Commentary to §2K2.1 captioned "Application Notes" is amended in Note 5 by deleting "Note 3" and inserting in lieu thereof "Note 1".
The Commentary to §7B1.1 captioned "Application Notes" is amended in Note 2 by deleting "§4B1.2(1)" and inserting in lieu thereof "§4B1.2(a)"; and by deleting "Notes 1 and 2" and inserting in lieu thereof "Note 1".
The Commentary to §7B1.1 captioned "Application Notes" is amended in Note 3 by deleting "§4B1.2(2)" and inserting in lieu thereof "§4B1.2(b)".
Reason for Amendment: This amendment addresses a circuit court conflict regarding whether the offenses of possessing a listed chemical with intent to manufacture a controlled substance or possessing a prohibited flask or equipment with intent to manufacture a controlled substance are "controlled substance offenses" under the career offender guideline. Compare United States v. Calverley, 11 F.3d 505 (5th Cir. 1993) (possession of a listed chemical with intent to manufacture a controlled substance is a controlled substance offense under §4B1.2) with United States v. Wagner, 994 F.2d 1467, 1475 (10th Cir. 1993) (possession of a listed chemical with intent to manufacture a controlled substance is not a controlled substance offense). This amendment makes each of these offenses a "controlled substance offense" under the career offender guideline. This decision is based on the Commission’s view that there is such a close connection between possession of a listed chemical or prohibited flask or equipment with intent to manufacture a controlled substance and actually manufacturing a controlled substance that the former offenses are fairly considered as controlled substance trafficking offenses.
The amendment also clarifies that certain other offenses are "crimes of violence" or "controlled substance offenses" if the offense of conviction established that the underlying offense was a "crime of violence" or "controlled substance offense." See United States v. Baker, 16 F.3d 854 (8th Cir. 1994); United States v. Vea-Gonzalez, 999 F.2d 1326 (9th Cir. 1993), effectively overruled on other grounds by Custis v. United States, 114 S.Ct. 1732 (1994). Additionally, the amendment makes the following nonsubstantive changes to §4B1.2 to improve the internal consistency of the guidelines: (A) adding the phrase "punishable by a term of imprisonment of more than one year, that prohibits" in subsection (2) to make it consistent with subsection (1); and (B) conforming the second paragraph of Application Note 2 of §4B1.2 to the language of §§2K1.3 and 2K2.1.
Effective Date: The effective date of this amendment is November 1, 1997.