AMENDMENT 569
Chapter Five, Part B, Subpart 1 is amended by deleting §§5B1.3 and 5B1.4 in their entirety as follows:
"§5B1.3. Conditions of Probation
(a) If a term of probation is imposed, the court shall impose a condition that the defendant shall not commit another federal, state, or local crime during the term of probation. 18 U.S.C. § 3563(a)(1). The court shall also impose a condition that the defendant not possess illegal controlled substances. 18 U.S.C. § 3563(a)(3).
(b) The court may impose other conditions that (1) are reasonably related to the nature and circumstances of the offense, the history and characteristics of the defendant, and the purposes of sentencing and (2) involve only such deprivations of liberty or property as are reasonably necessary to effect the purposes of sentencing. 18 U.S.C. § 3563(b). Recommended conditions are set forth in §5B1.4.
(c) If a term of probation is imposed for a felony, the court shall impose at least one of the following as a condition of probation: a fine, an order of restitution, or community service, unless the court finds on the record that extraordinary circumstances exist that would make such a condition plainly unreasonable, in which event the court shall impose one or more of the other conditions set forth under 18 U.S.C. § 3563(b). 18 U.S.C. § 3563(a)(2).
(d) Intermittent confinement (custody for intervals of time) may be ordered as a condition of probation during the first year of probation. 18 U.S.C. § 3563(b)(11). Intermittent confinement shall be credited toward the guideline term of imprisonment at §5C1.1 as provided in the schedule at §5C1.1(e).
Commentary
A broader form of the condition required under 18 U.S.C. § 3563(a)(3) (pertaining to possession of controlled substances) is set forth as recommended condition (7) at §5B1.4 (Recommended Conditions of Probation and Supervised Release).
§5B1.4. Recommended Conditions of Probation and Supervised Release (Policy Statement)
(a) The following ‘standard’ conditions (1-13) are generally recommended for both probation and supervised release:
(1) the defendant shall not leave the judicial district or other specified geographic area without the permission of the court or probation officer;
(2) the defendant shall report to the probation officer as directed by the court or probation officer and shall submit a truthful and complete written report within the first five days of each month;
(3) the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer;
(4) the defendant shall support his dependents and meet other family responsibilities;
(5) the defendant shall work regularly at a lawful occupation unless excused by the probation officer for schooling, training, or other acceptable reasons;
(6) the defendant shall notify the probation officer within seventy-two hours of any change in residence or employment;
(7) the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any narcotic or other controlled substance, or any paraphernalia related to such substances, except as prescribed by a physician;
(8) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered, or other places specified by the court;
(9) the defendant shall not associate with any persons engaged in criminal activity, and shall not associate with any person convicted of a felony unless granted permission to do so by the probation officer;
(10) the defendant shall permit a probation officer to visit him at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view by the probation officer;
(11) the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer;
(12) the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court;
(13) as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant’s criminal record or personal history or characteristics, and shall permit the probation officer to make such notifications and to confirm the defendant’s compliance with such notification requirement.
(b) The following ‘special’ conditions of probation and supervised release (14-24) are either recommended or required by law under the circumstances described, or may be appropriate in a particular case:
(14) Possession of Weapons
If the instant conviction is for a felony, or if the defendant was previously convicted of a felony or used a firearm or other dangerous weapon in the course of the instant offense, it is recommended that the court impose a condition prohibiting the defendant from possessing a firearm or other dangerous weapon.
(15) Restitution
If the court imposes an order of restitution, it is recommended that the court impose a condition requiring the defendant to make payment of restitution or adhere to a court ordered installment schedule for payment of restitution. See §5E1.1 (Restitution).
(16) Fines
If the court imposes a fine, it is recommended that the court impose a condition requiring the defendant to pay the fine or adhere to a court ordered installment schedule for payment of the fine.
(17) Debt Obligations
If an installment schedule of payment of restitution or fines is imposed, it is recommended that the court impose a condition prohibiting the defendant from incurring new credit charges or opening additional lines of credit without approval of the probation officer unless the defendant is in compliance with the payment schedule.
(18) Access to Financial Information
If the court imposes an order of restitution, forfeiture, or notice to victims, or orders the defendant to pay a fine, it is recommended that the court impose a condition requiring the defendant to provide the probation officer access to any requested financial information.
(19) Community Confinement
Residence in a community treatment center, halfway house or similar facility may be imposed as a condition of probation or supervised release. See §5F1.1 (Community Confinement).
(20) Home Detention
Home detention may be imposed as a condition of probation or supervised release, but only as a substitute for imprisonment. See §5F1.2 (Home Detention).
(21) Community Service
Community service may be imposed as a condition of probation or supervised release. See §5F1.3 (Community Service).
(22) Occupational Restrictions
Occupational restrictions may be imposed as a condition of probation or supervised release. See §5F1.5 (Occupational Restrictions).
(23) Substance Abuse Program Participation
If the court has reason to believe that the defendant is an abuser of narcotics, other controlled substances or alcohol, it is recommended that the court impose a condition requiring the defendant to participate in a program approved by the United States Probation Office for substance abuse, which program may include testing to determine whether the defendant has reverted to the use of drugs or alcohol.
(24) Mental Health Program Participation
If the court has reason to believe that the defendant is in need of psychological or psychiatric treatment, it is recommended that the court impose a condition requiring that the defendant participate in a mental health program approved by the United States Probation Office.
(25) Curfew
If the court concludes that restricting the defendant to his place of residence during evening and nighttime hours is necessary to provide just punishment for the offense, to protect the public from crimes that the defendant might commit during those hours, or to assist in the rehabilitation of the defendant, a condition of curfew is recommended. Electronic monitoring may be used as a means of surveillance to ensure compliance with a curfew order.
Commentary
Application Note:
1. Home detention, as defined by §5F1.2, may only be used as a substitute for imprisonment. See §5C1.1 (Imposition of a Term of Imprisonment). Under home detention, the defendant, with specified exceptions, is restricted to his place of residence during all non-working hours. Curfew, which limits the defendant to his place of residence during evening and nighttime hours, is less restrictive than home detention and may be imposed as a condition of probation whether or not imprisonment could have been ordered.".
A replacement guideline with accompanying commentary is inserted as §5B1.3 (Conditions of Probation).
Chapter Five, Part D, Subpart 1 is amended by deleting §5D1.3 in its entirety as follows:
"§5D1.3. Conditions of Supervised Release
(a) If a term of supervised release is imposed, the court shall impose a condition that the defendant not commit another federal, state, or local crime. 18 U.S.C. § 3583(d). The court shall also impose a condition that the defendant not possess illegal controlled substances. 18 U.S.C. § 3563(a)(3).
(b) The court may impose other conditions of supervised release, to the extent that such conditions are reasonably related to (1) the nature and circumstances of the offense and the history and characteristics of the defendant, and (2) the need for the sentence imposed to afford adequate deterrence to criminal conduct, to protect the public from further crimes of the defendant, and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. 18 U.S.C. §§ 3553(a)(2) and 3583(d).
(c) Recommended conditions of supervised release are set forth in §5B1.4.
Commentary
Background: This section applies to conditions of supervised release. The conditions generally recommended for supervised release are those recommended for probation. See §5B1.4. A broader form of the condition required under 18 U.S.C. § 3563(a)(3) (pertaining to possession of controlled substances) is set forth as recommended condition (7) at §5B1.4 (Recommended Conditions of Probation and Supervised Release).".
A replacement guideline with accompanying commentary is inserted as §5D1.3 (Conditions of Supervised Release).
The Commentary to §2X5.1 captioned "Application Note" is amended in Note 1 by deleting: "§5B1.4 (Recommended Conditions of Probation and Supervised Release);".
Section 5H1.3 is amended by deleting "recommended condition (24) at §5B1.4 (Recommended Conditions of Probation and Supervised Release)" and inserting in lieu thereof "§§5B1.3(d)(5) and 5D1.3(d)(5)".
Section 5H1.4 is amended in the second paragraph by deleting "recommended condition (23) at §5B1.4 (Recommended Conditions of Probation and Supervised Release)" and inserting in lieu thereof "§5D1.3(d)(4)"; and in the third paragraph by deleting "recommended condition (23) at §5B1.4 (Recommended Conditions of Probation and Supervised Release)" and inserting in lieu thereof "§5B1.3(d)(4)".
Section 8D1.3(a) is amended by deleting "shall" immediately after "organization".
Section 8D1.3(b) is amended by deleting "a fine, restitution, or community service," and inserting in lieu thereof "(1) restitution, (2) notice to victims of the offense pursuant to 18 U.S.C. § 3555, or (3) an order requiring the organization to reside, or refrain from residing, in a specified place or area,";
and by adding at the end:
"Note: Section 3563(a)(2) of Title 18, United States Code, provides that, absent unusual circumstances, a defendant convicted of a felony shall abide by at least one of the conditions set forth in 18 U.S.C. § 3563(b)(2), (b)(3), and (b)(13). Before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, those conditions were a fine ((b)(2)), an order of restitution ((b)(3)), and community service ((b)(13)). Whether or not the change was intended, the Act deleted the fine condition and renumbered the restitution and community service conditions in 18 U.S.C. § 3563(b), but failed to make a corresponding change in the referenced paragraphs under 18 U.S.C. § 3563(a)(2). Accordingly, the conditions now referenced are restitution ((b)(2)), notice to victims pursuant to 18 U.S.C. § 3555 ((b)(3)), and an order that the defendant reside, or refrain from residing, in a specified place or area ((b)(13)).".
Reason for Amendment: The purposes of this amendment are twofold. First, the amendment revises the pertinent guidelines to reflect statutorily required conditions of probation and supervised release added by Section 203 of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1227, and other laws. Second, the amendment revises §§5B1.3 (Conditions of Probation), 5B1.4 (Recommended Conditions of Probation and Supervised Release), and 5D1.3 (Conditions of Supervised Release) so as to better distinguish among the statutorily required, standard, and special conditions of probation and supervised release. Section 5B1.4 has been eliminated. Provisions of §5B1.4 relating to recommended conditions of probation have been incorporated into §5B1.3, and provisions of §5B1.4 relating to recommended conditions of supervised release have been incorporated into §5D1.3.
Effective Date: The effective date of this amendment is November 1, 1997.