AMENDMENT 805
The Commentary to §1B1.1 captioned “Application Notes” is amended in Note 1 by redesignating paragraphs (D) through (L) as paragraphs (E) through (M), respectively; and by inserting the following new paragraph (D):
“(D) ‘Court protection order’ means ‘protection order’ as defined by 18 U.S.C. § 2266(5) and consistent with 18 U.S.C. § 2265(b).”.
The Commentary to §2B3.1 captioned “Application Notes” is amended in Note 2 by striking “Application Note 1(D)(ii) of §1B1.1” and inserting “Application Note 1(E)(ii) of §1B1.1”.
The Commentary to §2L1.1 captioned “Application Notes” is amended in Note 4 by striking “Application Note 1(L) of §1B1.1” and inserting “Application Note 1(M) of §1B1.1”.
Section 4A1.3(a)(2) is amended by striking “subsection (a)” and inserting “subsection (a)(1)”; and by striking “sentences for foreign and tribal offenses” and inserting “sentences for foreign and tribal convictions”.
The Commentary to §4A1.3 captioned “Application Notes” is amended—
in Note 2 by inserting at the end the following new paragraph (C):
“(C) Upward Departures Based on Tribal Court Convictions.—In determining whether, or to what extent, an upward departure based on a tribal court conviction is appropriate, the court shall consider the factors set forth in §4A1.3(a) above and, in addition, may consider relevant factors such as the following:
(i) The defendant was represented by a lawyer, had the right to a trial by jury, and received other due process protections consistent with those provided to criminal defendants under the United States Constitution.
(ii) The defendant received the due process protections required for criminal defendants under the Indian Civil Rights Act of 1968, Public Law 90–284, as amended.
(iii) The tribe was exercising expanded jurisdiction under the Tribal Law and Order Act of 2010, Public Law 111–211.
(iv) The tribe was exercising expanded jurisdiction under the Violence Against Women Reauthorization Act of 2013, Public Law 113–4.
(v) The tribal court conviction is not based on the same conduct that formed the basis for a conviction from another jurisdiction that receives criminal history points pursuant to this Chapter.
(vi) The tribal court conviction is for an offense that otherwise would be counted under §4A1.2 (Definitions and Instructions for Computing Criminal History).”;
and in Note 3 by striking “A departure below the lower limit of the applicable guideline range for Criminal History Category I is prohibited under subsection (b)(2)(B)” and inserting “A departure below the lower limit of the applicable guideline range for Criminal History Category I is prohibited under subsection (b)(2)(A)”.
Reason for Amendment: This two-part amendment addresses federal sentencing issues related to offenses committed in Indian country. The amendment responds to the findings and recommendations made by the Commission’s ad hoc Tribal Issues Advisory Group in its report to the Commission. See Report of the Tribal Issues Advisory Group (May 16, 2016), https://www.ussc.gov/research/research-publications/report-tribal-issues-advisory-group.
The amendment adds a definition of “court protection order” in the guidelines. This issue was initially raised by the Commission’s Victims Advisory Group and subsequently addressed in the Tribal Issues Advisory Group’s May 2016 report. The amendment amends §1B1.1 (Application Instructions) to add a definition of “court protection order” that incorporates by reference the statutory definition of a “protection order” as set forth in 18 U.S.C. § 2266(5) and consistent with 18 U.S.C. § 2265(b). Under the Guidelines Manual, the violation of a court protection order is a specific offense characteristic in three Chapter Two offense guidelines. See USSG §§2A2.2 (Aggravated Assault), 2A6.1 (Threatening or Harassing Communications; Hoaxes; False Liens), and 2A6.2 (Stalking or Domestic Violence).
The amendment responds to concerns that the term “court protection order” has not been defined in the guidelines and should be clarified. Providing a clear definition of a “court protection order” in the Guidelines Manual will ensure that orders used for sentencing enhancements are the result of court proceedings assuring appropriate due process protections, that there is a consistent identification and treatment of such orders, and that such orders issued by tribal courts receive treatment consistent with that of other issuing jurisdictions. The amendment also makes conforming technical changes to the Commentary of §§2B1.3 (Robbery) and 2L1.1 (Smuggling, Transporting, or Harboring an Unlawful Alien).
The amendment addresses the treatment of tribal court convictions in Chapter Four (Criminal History and Criminal Livelihood) of the Guidelines Manual. Subsection (i) of §4A1.2 (Definitions and Instructions for Computing Criminal History) provides that sentences resulting from tribal court convictions are not counted in calculating a defendant’s criminal history score but may be considered for an upward departure under §4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)). Section 4A1.3 provides for an upward departure for prior sentences that are not used in computing the criminal history category, such as sentences for tribal convictions, where reliable information suggests that the defendant’s criminal history category under-represents the seriousness of the defendant’s prior record.
Tribal court convictions have been excluded from the criminal history score but have been a legitimate basis for upward departure since the original guidelines were promulgated in 1987. In recent years, some tribal courts have gained enhanced sentencing authority under the Tribal Law and Order Act of 2010, Pub. L. 111–211 (July 29, 2010), and expanded jurisdiction over non-Indian defendants in domestic abuse cases under the Violence Against Women Act Reauthorization Act of 2013, Pub. L. 113–4 (Mar. 7, 2013). Many tribal courts have also begun to increase due process protections and reliable record-keeping.
In recognition of these developments, the amendment provides additional guidance to courts on how to apply the departure provision at §4A1.3 in cases involving a defendant with a history of tribal convictions. Specifically, the amendment amends the Commentary to §4A1.3 at Application Note 2(c) to provide the following non-exhaustive list of six factors that courts may consider in deciding whether or to what extent an upward departure based on a tribal conviction may be appropriate:
(i) The defendant was represented by a lawyer, had the right to a trial by jury, and received other due process protections consistent with those provided to criminal defendants under the United States Constitution.
(ii) The defendant received the due process protections required for criminal defendants under the Indian Civil Rights Act of 1968, Public Law 90–284, as amended.
(iii) The tribe was exercising expanded jurisdiction under the Tribal Law and Order Act of 2010, Public Law 111–211.
(iv) The tribe was exercising expanded jurisdiction under the Violence Against Women Reauthorization Act of 2013, Public Law 113–4.
(v) The tribal court conviction is not based on the same conduct that formed the basis for a conviction from another jurisdiction that receives criminal history points pursuant to this Chapter.
(vi) The tribal court conviction is for an offense that otherwise would be counted under §4A1.2 (Definitions and Instructions for Computing Criminal History).
Because of the many cultural and historical differences among federally-recognized tribes, and especially among their tribal court systems, the Commission determined that — despite recent developments in Indian law to enlarge the scope of tribal court jurisdiction and the availability of due process in tribal court proceedings — a single approach to the consideration of tribal convictions would be difficult and could potentially lead to a disparate result among Indian defendants in federal courts. The amendment, therefore, reflects the Commission’s view that additional guidance about how to apply the departure provision at §4A1.3 in cases involving a defendant with a history of tribal convictions is appropriate, and that the non-exhaustive list of factors provides appropriate guidance and a more structured analytical framework under §4A1.3. The Commission intends, as informed by the Tribal Issues Advisory Group Report and public comment, that none of the factors should be determinative, but collectively the factors reflect important considerations to help courts balance the rights of defendants, the unique and important status of tribal courts, the need to avoid disparate sentences because of varying tribal court practices and circumstances, and the goal of accurately assessing a defendant’s criminal history.
The amendment also includes two technical changes to §4A1.3. First, the amendment amends §4A1.3(a)(2)(A) to change the phrase “sentences for foreign and tribal offenses” to “sentences for foreign and tribal convictions” to track the parallel language in §4A1.2(h) and (i). Second, the amendment makes a clerical change in Application Note 3 to correct an inaccurate reference to §4A1.3(b)(2)(B).
Effective Date: The effective date of this amendment is November 1, 2018.