AMENDMENT 831
Section 1B1.1(a)(6) is amended by striking “Part B of Chapter Four” and inserting “Parts B and C of Chapter Four”.
The Commentary to §1B1.1 captioned “Application Notes” is amended—
in Note 1 by inserting at the beginning the following new heading: “Frequently Used Terms Defined.—”;
in Note 1(F) by striking “subdivision” and inserting “clause”;
in Note 2 by inserting at the beginning the following new heading: “Definition of Additional Terms.—”; and by striking “case by case basis” and inserting “case-by-case basis”;
in Note 3 by inserting at the beginning the following new heading: “List of Statutory Provisions.—”;
in Note 4 by inserting at the beginning the following new heading: “Cumulative Application of Multiple Adjustments.—”;
in Note 4(A) by striking “specific offense characteristic subsection” and inserting “specific offense characteristic”; and by striking “subdivisions” and inserting “subparagraphs”;
and in Note 5 by inserting at the beginning the following new heading: “Two or More Guideline Provisions Equally Applicable.—”.
Chapter Two is amended in the Introductory Commentary by striking “Chapter Four, Part B (Career Offenders and Criminal Livelihood)” and inserting “Chapter Four, Parts B (Career Offenders and Criminal Livelihood) and C (Adjustment for Certain Zero-Point Offenders)”.
Section 2B1.1(b)(7) is amended by striking “Federal” and inserting “federal”; and by striking “Government” both places such term appears and inserting “government”.
Section 2B1.1(b)(17) is amended by striking “subdivision” both places such term appears and inserting “subparagraph”.
Section 2B1.1(b)(19)(B) is amended by striking “subdivision” and inserting “subparagraph”.
Section 2B1.1(c)(3) is amended by striking “subdivision” and inserting “paragraph”.
The Commentary to 2B1.1 captioned “Application Notes” is amended—
in Note 1 by striking “ ‘Equity securities’ ” and inserting “ ‘Equity security’ ”;
in Note 3(E), as redesignated by Amendment 827, by striking “subdivision (A)” and inserting “subparagraph (A)”;
in Note 3(E)(i), as redesignated by Amendment 827, by striking “this subdivision” and inserting “this clause”;
in Note 3(E)(viii), as redesignated by Amendment 827, by striking “a Federal health care offense” and inserting “a federal health care offense”; and by striking “Government health care program” both places such term appears and inserting “government health care program”;
and in Note 4(C)(ii) by striking “subdivision” and inserting “subparagraph”.
The Commentary to §2B1.6 captioned “Application Notes” is amended in Note 1 by striking “United State Code” both places such term appears and inserting “United States Code”; and by striking “subdivision (B)” and inserting “subparagraph (B)”.
Section 2B3.1(b)(3) is amended by striking “subdivisions” both places such term appears and inserting “subparagraphs”; and by striking “cumulative adjustments from (2) and (3)” and inserting “cumulative adjustments from application of paragraphs (2) and (3)”.
The Commentary to §2B3.1 captioned “Application Notes” is amended—
in Note 1 by inserting at the beginning the following new heading: “Definitions.—”;
in Note 2 by inserting at the beginning the following new heading: “Dangerous Weapon.—”;
in Note 3 by inserting at the beginning the following new heading: “Definition of ‘Loss’.—”;
in Note 4 by inserting at the beginning the following new heading: “Cumulative Application of Subsections (b)(2) and (b)(3).—”;
in Note 5 by inserting at the beginning the following new heading: “Upward Departure Provision.—”;
and in Note 6 by inserting at the beginning the following new heading: “ ‘A Threat of Death’.—”.
Section 2B3.2(b)(3)(B) is amended by striking “subdivisions” and inserting “clauses”.
Section 2B3.2(b)(4) is amended by striking “subdivisions” both places such term appears and inserting “subparagraphs”; and by striking “cumulative adjustments from (3) and (4)” and inserting “cumulative adjustments from application of paragraphs (3) and (4)”.
The Commentary to §2B3.2 captioned “Application Notes” is amended—
in Note 2 by inserting at the beginning the following new heading: “Threat of Injury or Serious Damage.—”;
in Note 3 by inserting at the beginning the following new heading: “Offenses Involving Public Officials and Other Extortion Offenses.—”;
in Note 4 by inserting at the beginning the following new heading: “Cumulative Application of Subsections (b)(3) and (b)(4).—”;
in Note 5 by inserting at the beginning the following new heading: “Definition of ‘Loss to the Victim’.—”;
in Note 6 by inserting at the beginning the following new heading: “Defendant’s Preparation or Ability to Carry Out a Threat.—”;
in Note 7 by inserting at the beginning the following new heading: “Upward Departure Based on Threat of Death or Serious Bodily Injury to Numerous Victims.—”;
and in Note 8 by inserting at the beginning the following new heading: “Upward Departure Based on Organized Criminal Activity or Threat to Family Member of Victim.—”.
Section 2C1.8(b)(3) is amended by striking “Federal” and inserting “federal”.
The Commentary to §2C1.8 captioned “Application Notes” is amended in Note 2 by striking “Federal” both places such term appears and inserting “federal”; and by striking “Presidential” and inserting “presidential”.
Section 2D1.1(b)(14)(C)(ii) is amended by striking “subdivision” and inserting “subparagraph”.
The Commentary to §2D1.1 captioned “Application Notes” is amended—
in Note 8(D)—
under the heading relating to LSD, PCP, and Other Schedule I and II Hallucinogens (and their immediate precursors), by striking the following:
“1 gm of 1-Piperidinocyclohexanecarbonitrile (PCC) = 680 gm
1 gm of 4-Bromo-2,5-Dimethoxyamphetamine (DOB) = 2.5 kg
1 gm of 2,5-Dimethoxy-4-methylamphetamine (DOM) = 1.67 kg
1 gm of 3,4-Methylenedioxyamphetamine (MDA) = 500 gm
1 gm of 3,4-Methylenedioxymethamphetamine (MDMA) = 500 gm
1 gm of 3,4-Methylenedioxy-N-ethylamphetamine (MDEA) = 500 gm”;
and inserting the following:
“1 gm of 1-Piperidinocyclohexanecarbonitrile (PCC) = 680 gm
1 gm of 2,5-Dimethoxy-4-methylamphetamine (DOM) = 1.67 kg
1 gm of 3,4-Methylenedioxyamphetamine (MDA) = 500 gm
1 gm of 3,4-Methylenedioxymethamphetamine (MDMA) = 500 gm
1 gm of 3,4-Methylenedioxy-N-ethylamphetamine (MDEA) = 500 gm
1 gm of 4-Bromo-2,5-Dimethoxyamphetamine (DOB) = 2.5 kg”;
and under the heading relating to Schedule III Substances (except Ketamine), by striking “1 unit of a Schedule III Substance” and inserting “1 unit of a Schedule III Substance (except Ketamine)”;
and in Note 9, under the heading relating to Hallucinogens, by striking the following:
“2,5-Dimethoxy-4-methylamphetamine (STP, DOM)* 3 mg
MDA 250 mg
MDMA 250 mg
Mescaline 500 mg
PCP* 5 mg”;
and inserting the following:
“2,5-Dimethoxy-4-methylamphetamine (STP, DOM)* 3 mg
3,4-Methylenedioxyamphetamine (MDA) 250 mg
3,4-Methylenedioxymethamphetamine (MDMA) 250 mg
Mescaline 500 mg
Phencyclidine (PCP)* 5 mg”.
The Commentary to §2D1.1 captioned “Background” is amended by striking “Section 6453 of the Anti-Drug Abuse Act of 1988” and inserting “section 6453 of Public Law 100–690”.
The Commentary to §2D1.2 captioned “Background” is amended by striking “Section 6454 of the Anti-Drug Abuse Act of 1988” and inserting “section 6454 of Public Law 100–690”.
The Commentary to §2D1.5 captioned “Application Notes” is amended—
in Note 1 by inserting at the beginning the following new heading: “Inapplicability of Chapter Three Adjustment.—”;
in Note 2 by inserting at the beginning the following new heading: “Upward Departure Provision.—”;
in Note 3 by inserting at the beginning the following new heading: “ ‘Continuing Series of Violations’.—”;
and in Note 4 by inserting at the beginning the following new heading: “Multiple Counts.—”.
The Commentary to §2D1.5 captioned “Background” is amended by striking “Title 21 U.S.C. § 848” and inserting “Section 848 of title 21, United States Code,”.
Section 2E2.1(b)(2) is amended by striking “subdivisions” both places such term appears and inserting “subparagraphs”; and by striking “the combined increase from (1) and (2)” and inserting “the combined increase from application of paragraphs (1) and (2)”.
The Commentary to §2E2.1 captioned “Application Notes” is amended—
in Note 1 by inserting at the beginning the following new heading: “Definitions.—”;
and in Note 2 by inserting at the beginning the following new heading: “Interpretation of Specific Offense Characteristics.—”.
Section 2E3.1(a)(1) is amended by striking “subdivision” and inserting “paragraph”.
The Commentary to §2E3.1 captioned “Application Notes” is amended in Note 1 by striking “§ 2156(g)” and inserting “§2156(f)”.
Section 2H2.1(a)(2) is amended by striking “in (3)” and inserting “in paragraph (3)”.
The Commentary to §2H2.1 captioned “Application Note” is amended in Note 1 by inserting at the beginning the following new heading: “Upward Departure Provision.—”.
Section 2K1.4(b)(2) is amended by striking “under (a)(4)” and inserting “under subsection (a)(4)”.
The Commentary to §2K2.4 captioned “Application Notes” is amended in Note 1 by striking “United State Code” both places such term appears and inserting “United States Code”.
The Commentary to §2S1.1 captioned “Application Notes” is amended—
in Note 1 by striking “authorized Federal official” and inserting “authorized federal official”;
and in Note 4(B)(vi) by striking “subdivisions” and inserting “clauses”.
Section 3B1.1(c) is amended by striking “in (a) or (b)” and inserting “in subsection (a) or (b)”.
The Commentary to §3B1.1 captioned “Application Notes” is amended—
in Note 1 by inserting at the beginning the following new heading: “Definition of ‘Participant’.—”;
in Note 2 by inserting at the beginning the following new heading: “Organizer, Leader, Manager, or Supervisor of One or More Participants.—”;
in Note 3 by inserting at the beginning the following new heading: “ ‘Otherwise Extensive’.—”;
and in Note 4 by inserting at the beginning the following new heading: “Factors to Consider.—”; and by striking “decision making” and inserting “decision-making”.
The Commentary to §3D1.1 captioned “Application Notes” is amended in Note 2 by inserting at the beginning the following new heading: “Application of Subsection (b).—”.
The Commentary to §3D1.1 captioned “Background” is amended by striking “Chapter Four, Part B (Career Offenders and Criminal Livelihood)” and inserting “Chapter Four, Parts B (Career Offenders and Criminal Livelihood) and C (Adjustment for Certain Zero-Point Offenders)”.
The Commentary to §3D1.5 is amended by striking “Chapter Four, Part B (Career Offenders and Criminal Livelihood)” and inserting “Chapter Four, Parts B (Career Offenders and Criminal Livelihood) and C (Adjustment for Certain Zero-Point Offenders)”.
Section 4A1.1(b) is amended by striking “in (a)” and inserting “in subsection (a)”.
Section 4A1.1(c) is amended by striking “in (a) or (b)” and inserting “in subsection (a) or (b)”.
Section 4A1.1(d) is amended by striking “under (a), (b), or (c)” and inserting “under subsection (a), (b), or (c)”.
The Commentary to §4A1.1 captioned “Application Notes” is amended—
in Note 1, in the heading, by striking “§4A1.1(a).” and inserting “§4A1.1(a).—”;
in Note 2, in the heading, by striking “§4A1.1(b).” and inserting “§4A1.1(b).—”;
in Note 3, in the heading, by striking “§4A1.1(c).” and inserting “§4A1.1(c).—”;
in Note 4, in the heading, by striking “§4A1.1(d).” and inserting “§4A1.1(d).—”;
and in Note 5, in the heading, by striking “§4A1.1(e).” and inserting “§4A1.1(e).—”.
Section 4A1.2(a)(2) is amended by striking “by (A) or (B)” and inserting “by subparagraph (A) or (B)”.
Section 4A1.2(d)(2)(B) is amended by striking “in (A)” and inserting “in subparagraph (A)”.
Section 4C1.1(a) is amended—
in paragraph (9) by striking “and”;
by striking paragraph (10) as follows:
“(10) the defendant did not receive an adjustment under §3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848;”;
and by inserting at the end the following new paragraphs (10) and (11):
“(10) the defendant did not receive an adjustment under §3B1.1 (Aggravating Role); and
(11) the defendant was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848;”.
Section 5E1.2(c)(2) is amended by striking “in (4)” and inserting “in paragraph (4)”.
Section 5F1.6 is amended by striking “Federal” and inserting “federal”.
The Commentary to 5F1.6 captioned “Application Note” is amended in Note 1 by inserting at the beginning the following new heading: “Definition of ‘Federal Benefit’.—”.
The Commentary to §5G1.2 captioned “Application Notes” is amended—
in Note 1 by striking “See Note 3” and inserting “See Application Note 3”;
in Note 2(A) by striking “subdivision” and inserting “subparagraph”;
in Note 4(B)(i) by striking “a drug trafficking offense (5 year mandatory minimum), and one count of violating 21 U.S.C. § 841(b)(1)(C) (20 year statutory maximum)” and inserting “a drug trafficking offense (5-year mandatory minimum), and one count of violating 21 U.S.C. § 841(b)(1)(C) (20-year statutory maximum)”;
in Note 4(B)(ii) by striking “one count of 18 U.S.C. § 924(c) (5 year mandatory minimum), and one count of violating 21 U.S.C. § 841(b)(1)(C) (20 year statutory maximum)” and inserting “one count of 18 U.S.C. § 924(c) (5-year mandatory minimum), and one count of violating 21 U.S.C. § 841(b)(1)(C) (20-year statutory maximum)”;
and in Note 4(B)(iii) by striking the following:
“The defendant is convicted of two counts of 18 U.S.C. § 924(c) (5 year mandatory minimum on first count, 25 year mandatory minimum on second count) and one count of violating 18 U.S.C. § 113(a)(3) (10 year statutory maximum). Applying §4B1.1(c), the court determines that a sentence of 460 months is appropriate (applicable guideline range of 460–485 months). The court then imposes (I) a sentence of 60 months on the first 18 U.S.C. § 924(c) count; (II) a sentence of 300 months on the second 18 U.S.C. § 924(c) count; and (III) a sentence of 100 months on the 18 U.S.C. § 113(a)(3) count. The sentence on each count is imposed to run consecutively to the other counts.”;
and inserting the following:
“The defendant is convicted of two counts of 18 U.S.C. § 924(c) (5-year mandatory minimum on each count) and one count of violating 18 U.S.C. § 113(a)(3) (10-year statutory maximum). Applying §4B1.1(c), the court determines that a sentence of 262 months is appropriate (applicable guideline range of 262–327 months). The court then imposes (I) a sentence of 82 months on the first 18 U.S.C. § 924(c) count; (II) a sentence of 60 months on the second 18 U.S.C. § 924(c) count; and (III) a sentence of 120 months on the 18 U.S.C. § 113(a)(3) count. The sentence on each count is imposed to run consecutively to the other counts.”.
The Commentary to §5K1.1 captioned “Application Notes” is amended—
in Note 1 by inserting at the beginning the following new heading: “Sentence Below Statutorily Required Minimum Sentence.—”;
in Note 2 by inserting at the beginning the following new heading: “Interaction with Acceptance of Responsibility Reduction.—”;
and in Note 3 by inserting at the beginning the following new heading: “Government’s Evaluation of Extent of Defendant’s Assistance.—”.
The Commentary to §5K1.1 captioned “Background” is amended by striking “in camera” and inserting “in camera”.
Section 5K2.0(e) is amended by striking “in camera” and inserting “in camera”.
The Commentary to §5K2.0 captioned “Application Notes” is amended in Note 3(C) by striking “subdivision” and inserting “subparagraph”.
Section 6A1.5 is amended by striking “Federal” and inserting “federal”.
The Commentary to §8B2.1 captioned “Application Notes” is amended in Note 4(A) by striking “any Federal, State,” and inserting “any federal, state,”.
Reason for Amendment: This amendment makes technical, stylistic, and other non-substantive changes to the Guidelines Manual.
The amendment makes technical and conforming changes in response to the recent promulgation of §4C1.1 (Adjustment for Certain Zero-Point Offenders), which provides a 2-level decrease for certain defendants who have zero criminal history points. The decrease applies only if none of the exclusionary criteria set forth in subsection (a) applies. Currently, the exclusionary criteria include subsection (a)(10), requiring that “the defendant did not receive an adjustment under §3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848.” Since promulgation of §4C1.1, several stakeholders have questioned whether either condition in subsection (a)(10) is disqualifying or whether only the combination of both conditions is disqualifying. The Commission intended §4C1.1(a)(10) to track the safety valve criteria at 18 U.S.C. § 3553(f)(4), such that defendants are ineligible for safety valve relief if they either have an aggravating role or engaged in a continuing criminal enterprise. It is not required to demonstrate both. See, e.g., United States v. Bazel, 80 F.3d 1140, 1143 (6th Cir. 1996); United States v. Draheim, 958 F.3d 651, 660 (7th Cir. 2020). To clarify the Commission’s intention that a defendant is ineligible for the adjustment if the defendant meets either of the disqualifying conditions in the provision, the amendment makes technical changes to §4C1.1 to divide subsection (a)(10) into two separate provisions (subsections (a)(10) and (a)(11)).
The amendment also adds references to Chapter Four, Part C (Adjustment for Certain Zero-Point Offenders) in §1B1.1 (Application Instructions), the Introductory Commentary to Chapter Two (Offense Conduct), and the Commentary to §§3D1.1 (Procedure for Determining Offense Level on Multiple Counts) and 3D1.5 (Determining the Total Punishment). These guidelines and commentaries refer to the order in which the provisions of the Guidelines Manual should be applied.
Finally, the amendment makes technical and clerical changes to—
• the Commentary to §1B1.1 (Application Instructions), to add headings to some application notes, provide stylistic consistency in how subdivisions are designated, and correct a typographical error;
• §2B1.1 (Theft, Property Destruction, and Fraud), to provide consistency in the use of capitalization and how subdivisions are designated, and to correct a reference to the term “equity security”;
• the Commentary to §2B1.6 (Aggravated Identity Theft), to correct some typographical errors and provide stylistic consistency in how subdivisions are designated;
• §2B3.1 (Robbery), to provide stylistic consistency in how subdivisions are designated and add headings to the application notes in the Commentary;
• §2B3.2 (Extortion by Force or Threat of Injury or Serious Damage), to provide stylistic consistency in how subdivisions are designated and add headings to some application notes in the Commentary;
• §2C1.8 (Making, Receiving, or Failing to Report a Contribution, Donation, or Expenditure in Violation of the Federal Election Campaign Act; Fraudulently Misrepresenting Campaign Authority; Soliciting or Receiving a Donation in Connection with an Election While on Certain Federal Property), to provide consistency in the use of capitalization;
• §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses)), to provide stylistic consistency in how subdivisions are designated, make clerical changes to some controlled substance references in the Drug Conversion Tables at Application Note 8(D) and the Typical Weight Per Unit Table at Application Note 9, and correct a reference to a statute in the Background Commentary;
• the Background Commentary to §2D1.2 (Drug Offenses Occurring Near Protected Locations or Involving Underage or Pregnant Individuals; Attempt or Conspiracy), to correct a reference to a statute;
• the Commentary to §2D1.5 (Continuing Criminal Enterprise; Attempt or Conspiracy), to add headings to application notes and correct a reference to a statutory provision;
• §2E2.1 (Making or Financing an Extortionate Extension of Credit; Collecting an Extension of Credit by Extortionate Means), to provide stylistic consistency in how subdivisions are designated and add headings to the application notes in the Commentary;
• §2E3.1 (Gambling Offenses; Animal Fighting Offenses), to provide stylistic consistency in how subdivisions are designated and correct a reference to a statutory provision in the Commentary;
• §2H2.1 (Obstructing an Election or Registration), to provide stylistic consistency in how subdivisions are designated and add a heading to the application note in the Commentary;
• §2K1.4 (Arson; Property Damage by Use of Explosives), to provide stylistic consistency in how subdivisions are designated;
• the Commentary to §2K2.4 (Use of Firearm, Armor-Piercing Ammunition, or Explosive During or in Relation to Certain Crimes), to correct typographical errors;
• the Commentary to §2S1.1 (Laundering of Monetary Instruments; Engaging in Monetary Transactions in Property Derived from Unlawful Activity), to provide consistency in the use of capitalization and how subdivisions are designated;
• §3B1.1 (Aggravating Role), to provide stylistic consistency in how subdivisions are designated, add headings to the application notes in the Commentary, and correct a typographical error;
• the Commentary to §3D1.1 (Procedure for Determining Offense Level on Multiple Counts), to add a heading to an application note;
• §4A1.1 (Criminal History Category), to provide stylistic consistency in how subdivisions are designated and correct the headings of the application notes in the Commentary;
• §4A1.2 (Definitions and Instructions for Computing Criminal History), to provide stylistic consistency in how subdivisions are designated;
• the Commentary to §5G1.2 (Sentencing on Multiple Counts of Conviction), to provide stylistic consistency in how subdivisions are designated, fix typographical errors in the Commentary, and update an example that references 18 U.S.C. § 924(c) (which was amended by the First Step Act of 2018, Public Law 115–391 (Dec. 21, 2018) to limit the “stacking” of certain mandatory minimum penalties imposed under 18 U.S.C. § 924(c) for multiple offenses that involve using, carrying, possessing, brandishing, or discharging a firearm in furtherance of a crime of violence or drug trafficking offense);
• the Commentary to §5K1.1 (Substantial Assistance to Authorities (Policy Statement)), to add headings to application notes and correct a typographical error;
• §5K2.0 (Grounds for Departure (Policy Statement)), to correct a typographical error and provide stylistic consistency in how subdivisions are designated;
• §5E1.2 (Fines for Individual Defendants), to provide stylistic consistency in how subdivisions are designated;
• §5F1.6 (Denial of Federal Benefits to Drug Traffickers and Possessors), to provide consistency in the use of capitalization and add a heading to an application note in the Commentary;
• §6A1.5 (Crime Victims’ Rights (Policy Statement)), to provide consistency in the use of capitalization; and
• the Commentary to §8B2.1 (Effective Compliance and Ethics Program), to provide consistency in the use of capitalization.
Effective Date: The effective date of this amendment is November 1, 2024.