AMENDMENT 630
Section 2K1.3(a)(1) is amended by striking "had at least two prior felony convictions of either a crime of violence or a controlled substance offense; or" and inserting "committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense;";
Section 2K1.3(a)(2) is amended by striking "had one prior felony conviction of either a crime of violence or a controlled substance offense; or" and inserting "committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense;".
The Commentary to §2K1.3 captioned "Application Notes" is amended by striking the text of Note 2 as follows:
‘Crime of violence,’ ‘controlled substance offense,’ and ‘prior felony conviction(s),’ as used in subsections (a)(1) and (a)(2), are defined at §4B1.2 (Definitions of Terms Used in Section 4B1.1), subsection (a), subsection (b), and Application Note 1 of the Commentary, respectively. For purposes of determining the number of such convictions under subsections (a)(1) and (a)(2), count any such prior conviction that receives any points under §4A1.1 (Criminal History Category).",
and inserting the following:
"For purposes of this guideline:
‘Controlled substance offense’ has the meaning given that term in §4B1.2(b) and Application Note 1 of the Commentary to §4B1.2 (Definitions of Terms Used in Section 4B1.1).
‘Crime of violence’ has the meaning given that term in §4B1.2(a) and Application Note 1 of the Commentary to §4B1.2.
‘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 years or older is an adult conviction. A conviction for an offense committed prior to age eighteen years 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 §2K1.3 captioned "Application Notes" is amended in Note 9 by inserting before the first paragraph the following:
"For purposes of applying subsection (a)(1) or (2), use only those felony convictions that receive criminal history points under §4A1.1(a), (b), or (c). In addition, for purposes of applying subsection (a)(1), use only those felony convictions that are counted separately under §4A1.1(a), (b), or (c). See §4A1.2(a)(2); §4A1.2, comment. (n.3).".
Section 2K2.1(a)(1) is amended by striking "had at least two prior felony convictions of either a crime of violence or a controlled substance offense; or" and inserting "committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense;".
Section 2K2.1(a)(2) is amended by striking "had at least two prior felony convictions of either a crime of violence or a controlled substance offense; or" and inserting "committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense;".
Section 2K2.1(a)(3) is amended by striking "had one prior felony conviction of either a crime of violence or controlled substance offense; or" and inserting "committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense;".
Section 2K2.1(a)(4)(A) is amended by striking "had one prior felony conviction of either a crime of violence or controlled substance offense; or" and inserting "committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense; or".
Section 2K2.1(a) is amended in subdivision (4)(B) by striking "; or" after "922(d)" and inserting a semi-colon; in subdivision (5), by striking "; or" after "921(a)(30)" and inserting a semi-colon; and in subdivision (6) by striking "; or" after "§ 922(d)" and inserting a semi-colon.
The Commentary to §2K2.1 captioned "Application Notes" is amended by striking Note 5 as follows:
"5. ‘Crime of violence,’ ‘controlled substance offense,’ and ‘prior felony conviction(s),’ are defined in §4B1.2 (Definitions of Terms Used in Section 4B1.1), subsection (a), subsection (b), and Application Note 1 of the Commentary, respectively. For purposes of determining the number of such convictions under subsections (a)(1), (a)(2), (a)(3), and (a)(4)(A), count any such prior conviction that receives any points under §4A1.1 (Criminal History Category).
and inserting the following:
"5. For purposes of this guideline:
‘Controlled substance offense’ has the meaning given that term in §4B1.2(b) and Application Note 1 of the Commentary to §4B1.2 (Definitions of Terms Used in Section 4B1.1).
‘Crime of violence’ has the meaning given that term in §4B1.2(a) and Application Note 1 of the Commentary to §4B1.2.
‘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 years or older is an adult conviction. A conviction for an offense committed prior to age eighteen years 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 §2K2.1 captioned "Application Notes" is amended in Note 15 by inserting before the first paragraph the following:
"For purposes of applying subsection (a)(1), (2), (3), or (4)(A), use only those felony convictions that receive criminal history points under §4A1.1(a), (b), or (c). In addition, for purposes of applying subsection (a)(1) and (a)(2), use only those felony convictions that are counted separately under §4A1.1(a), (b), or (c). See §4A1.2(a)(2); §4A1.2, comment. (n.3).".
Reason for Amendment: This amendment modifies subsections (a)(1) and (a)(2) of §2K1.3 (Unlawful Receipt, Possession, or Transportation of Explosive Materials; Prohibited Transactions Involving Explosive Materials) and subsections (a)(1), (a)(2), (a)(3) and (a)(4)(A) of §2K2.1 (Unlawful Receipt, Possession or Transportation of Firearms or Ammunition) to resolve a circuit conflict regarding whether a crime committed after the commission of the instant offense and before sentencing for the instant offense is counted as a prior felony conviction for purposes of determining the defendant’s base offense level. Compare United States v. Pugh, 158 F.3d 1308, 1311 (D.C. Cir. 1998) (finding the guideline language ambiguous but the commentary language clear, thereby counting prior felony conviction that was sentenced prior to sentencing for the instant federal offense, even if the defendant committed the prior felony offense after the instant federal offense); United States v. McCary, 14 F.3d 1502, 1506 (10th Cir. 1994) (the defendant’s base offense level is to be determined on the basis of the defendant’s status as of the date the district court imposed sentence, not the date of the offense for which he had previously been convicted); and United States v. Laihben, 167 F.3d 1364 (11th Cir. 1999) (district court properly considered defendant’s conviction, which occurred after commission of, but before sentencing, on the federal firearms offense, in determining offense level), with United States v. Barton, 100 F.3d 43, 46 (6th Cir. 1996) (defendant’s state drug crime, which was committed after federal offense of being a felon in possession of firearm, could not have been counted as prior felony conviction under §2K2.1(a), even though defendant was convicted and sentenced on state offense prior to sentencing on federal charge; only those convictions that occur prior to the commission of the firearm offense may be counted against the defendant in determining the base offense level) ) and United States v. Oetken, 241 F.3d 1057 (8th Cir. 2001) (only convictions that occur prior to the commission of the offense qualify as "prior convictions").
The amendment adopts the minority view that an offense committed after the commission of any part of the offense cannot be counted as a prior felony conviction. The amendment clarifies, in §2K1.3(a)(1) and (a)(2) and in §2K2.1(a)(1), (a)(2), (a)(3) and (a)(4)(A), that the instant offense must have been committed subsequent to sustaining the prior felony conviction. In so doing, this amendment adopts a rule that is consistent with the requirements concerning the use of prior convictions under §§4B1.1 (Career Offender) and 4B1.2 (Definitions of Terms Used in Section 4B1.1).
This amendment also clarifies that in cases in which more than one prior felony conviction is required for application of the base offense level in §2K1.3 or §2K2.1, the prior felony convictions must be counted separately under Chapter Four (Criminal History and Criminal Livelihood).
The amendment makes nonsubstantive clarifying changes in the definitions of "controlled substance offense", "crime of violence", and "felony conviction" for purposes of §§2K1.3 and 2K2.1.
Effective Date: The effective date of this amendment is November 1, 2001.