AMENDMENT 757
Section 5K2.0(e) is amended by striking "written judgment and commitment order" and inserting "statement of reasons form".
The Commentary to §5K2.0 captioned "Application Notes" is amended in Note 3(C) in the second paragraph by striking "written judgment and commitment order" and inserting "statement of reasons form"; and in Note 5 by striking "written judgment and commitment order" and inserting "statement of reasons form".
Section 6B1.2(b)(2) is amended by striking "departs from" and inserting "is outside"; by striking "specifically set forth in writing", and inserting "set forth with specificity"; and by striking "or judgment and commitment order" and inserting "form".
Section 6B1.2(c)(2) is amended by striking "departs from" and inserting "is outside"; by striking "specifically set forth in writing" and inserting "set forth with specificity"; and by striking "or judgment and commitment order" and inserting "form".
The Commentary to §6B1.2 is amended in the second paragraph by striking "departs from" and inserting "is outside"; by striking "(i.e., that such departure is authorized by 18 U.S.C. § 3553(b)) and those reasons are specifically set forth in writing in the statement of reasons or the judgment and commitment order", and inserting" and those reasons are set forth with specificity in the statement of reasons form. See 18 U.S.C. § 3553(c)".
Appendix A (Statutory Index) is amended by inserting after the line referenced to 18 U.S.C. § 2237(a)(2)(B) the following:
"18 U.S.C. § 2237(b)(2)(B)(i) 2A1.3, 2A1.4
18 U.S.C. § 2237(b)(2)(B)(ii)(I) 2A2.1, 2A2.2
18 U.S.C. § 2237(b)(2)(B)(ii)(II) 2A4.1
18 U.S.C. § 2237(b)(2)(B)(ii)(III) 2A3.1
18 U.S.C. § 2237(b)(3) 2A2.2
18 U.S.C. § 2237(b)(4) 2A2.1, 2A2.2, 2G1.1, 2G1.3, 2G2.1, 2H4.1, 2L1.1";
and by inserting after the line referenced to 33 U.S.C. § 1908 the following:
"33 U.S.C. § 3851 2Q1.2".
Reason for Amendment: This two-part amendment addresses miscellaneous issues arising from recently enacted legislation and other guideline application issues.
Plea Agreements
First, the amendment updates the policy statement at §6B1.2 (Standards for Acceptance of Plea Agreements) in light of United States v. Booker, 543 U.S. 220 (2005). Specifically, it amends §6B1.2 to provide standards for acceptance of plea agreements when the sentence is outside the applicable guideline range, including when the sentence is a "variance" (i.e., a sentence that is outside the guidelines framework). These changes to §6B1.2 are consistent with the changes to §1B1.1 (Application Instructions) that the Commission promulgated last year, see USSG App. C, Amendment 741 (effective November 1, 2010), and reflect Booker and subsequent case law.
The amendment also responds to the Federal Judiciary Administrative Improvements Act of 2010, Pub. L. 111–174 (enacted May 27, 2010), which amended 18 U.S.C. § 3553(c)(2) to require that the reasons for a sentence be set forth in the statement of reasons form (rather than in the judgment and commitment order). The amendment makes appropriate clerical changes to §6B1.2 and subsection (e) of §5K2.0 (Grounds for Departure) to reflect this statutory change.
Coast Guard Authorization Act of 2010
Second, the amendment responds to the Coast Guard Authorization Act of 2010, Pub. L. 111–281 (enacted October 15, 2010), which provided statutory sentencing enhancements for certain offenses under 18 U.S.C. § 2237 (Criminal sanctions for failure to heave to, obstruction of boarding, or providing false information) and created a new criminal offense at 33 U.S.C. § 3851.
The amendment addresses the section 2237 offenses by expanding the range of guidelines to which certain section 2237 offenses are referenced. Section 2237 makes it unlawful for—
the operator of a vessel to knowingly fail to obey a law enforcement order to heave to, see 18 U.S.C. § 2237(a)(1);
a person on board a vessel to forcibly interfere with a law enforcement boarding or other law enforcement action, or to resist arrest, see 18 U.S.C. § 2237(a)(2)(A); or
a person on board a vessel to provide materially false information to a law enforcement officer during a boarding regarding the vessel's destination, origin, ownership, registration, nationality, cargo, or crew, see 18 U.S.C. § 2237(a)(2)(B).
All three of these offenses are punishable by not more than 5 years of imprisonment. The first two are referenced in Appendix A (Statutory Index) to §2A2.4 (Obstructing or Impeding Officers); the third is referenced to §2B1.1 (Theft, Property Destruction, and Fraud). However, the Coast Guard Authorization Act of 2010 provided statutory sentencing enhancements that apply to persons convicted under either of the first two offenses under section 2237 (i.e., the failure-to-heave-to and forcible-interference offenses referenced to §2A2.4; the statutory sentencing enhancements do not apply to the false-information offense referenced to §2B1.1). The amendment addresses these new statutory sentencing enhancements by referencing them in Appendix A (Statutory Index) to Chapter Two offense guidelines most analogous to the conduct forming the basis for the statutory sentencing enhancements, as follows.
If the section 2237 offense results in death, the statutory maximum term of imprisonment is raised to any term of years or life. See 18 U.S.C. § 2237(b)(2)(B)(i). The Commission referenced this statutory sentencing enhancement to §§2A1.3 (Voluntary Manslaughter) and 2A1.4 (Involuntary Manslaughter) because the statutory sentencing enhancement involves death without proof of malice aforethought.
If the section 2237 offense involves an attempt to kill, kidnapping or an attempt to kidnap, or an offense under 18 U.S.C. § 2241 (aggravated sexual abuse), the statutory maximum term of imprisonment likewise is raised to any term of years or life. See 18 U.S.C. § 2237(b)(2)(B)(ii). The Commission referenced this statutory sentencing enhancement to §§2A2.1 (Assault with Intent to Commit Murder; Attempted Murder) and 2A2.2 (Aggravated Assault) to account for when the section 2237 offense involves an attempt to kill, because those guidelines apply to attempted murder and attempted manslaughter, respectively; to §2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse) to account for when the section 2237 offense involves an offense under 18 U.S.C. § 2241, because offenses under section 2241 are referenced to that guideline; and to §2A4.1 (Kidnapping, Abduction, Unlawful Restraint) to account for when the section 2237 offense involves kidnapping or attempted kidnapping, because that guideline applies to kidnapping.
If the section 2237 offense results in serious bodily injury, the statutory maximum term of imprisonment is raised to 15 years. See 18 U.S.C. § 2237(b)(3). The Commission referenced this statutory sentencing enhancement to §2A2.2 because a section 2237 offense involving this statutory sentencing enhancement is similar to an assault that results in bodily injury, and that guideline applies to such an assault. See USSG §2A2.2, comment. (n.1) (defining aggravated assault to include any assault that involved serious bodily injury).
If the section 2237 offense involves knowing transportation under inhumane conditions, and is committed in the course of a violation of 8 U.S.C. § 1324; chapter 77 of title 18, United States Code; or section 113 or 117 of such title, the statutory maximum term of imprisonment is raised to 15 years. See 18 U.S.C. § 2237(b)(4). The Commission referenced this statutory sentencing enhancement to the following guidelines:
to §§2A2.1 (Assault with Intent to Commit Murder; Attempted Murder) and 2A2.2 to account for when the section 2237 offense involves a violation of section 113, because section 113 offenses are referenced to those guidelines;
to §§2G1.1 (Promoting a Commercial Sex Act or Prohibited Sexual Conduct with an Individual Other than a Minor), 2G1.3 (Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Sex Trafficking of Children; Use of Interstate Facilities to Transport Information about a Minor), and 2G2.1 (Sexually Exploiting a Minor by Production of Sexually Explicit Visual or Printed Material; Custodian Permitting Minor to Engage in Sexually Explicit Conduct; Advertisement for Minors to Engage in Production) to account for when the section 2237 offense involve a violation of 18 U.S.C. § 1591 (which is within chapter 77), because offenses under section 1591 are referenced to those guidelines;
to §2H4.1 (Peonage, Involuntary Servitude, Slave Trade, and Child Soldiers) to account for when the section 2237 offense involves a violation of any provision of chapter 77 other than 18 U.S.C. § 1591, because such violations generally are referenced to that guideline; and
to §2L1.1 (Smuggling, Transporting, or Harboring an Unlawful Alien) to account for when the section 2237 offense involves a violation of 8 U.S.C. § 1324, because section 1324 offenses are referenced to that guideline.
Finally, the amendment addresses the new criminal offense at 33 U.S.C. § 3851, which makes it a felony, punishable by imprisonment for not more than six years, to sell or distribute an organotin or to sell, distribute, make, use, or apply an anti-fouling system (e.g., paint) containing an organotin. The Commission referenced this offense to §2Q1.2 (Mishandling of Hazardous or Toxic Substances or Pesticides; Recordkeeping, Tampering, and Falsification; Unlawfully Transporting Hazardous Materials in Commerce) because the offense involves pesticides known to be toxic.
Effective Date: The effective date of this amendment is November 1, 2011.