2015 Amendments to the Federal Sentencing Guidelines

Amendments to the

Sentencing Guidelines

April 30, 2015

This compilation contains unofficial text of amendments to the sentencing guidelines, policy

statements, and commentary submitted to Congress, and is provided only for the convenience of

the user. Official text of the amendments can be found on the Commission’s website at

www.ussc.gov and will appear in a forthcoming edition of the Federal Register.

TABLE OF CONTENTS

AMENDMENT PAGE NO.

1. JOINTLY UNDERTAKEN CRIMINAL ACTIVITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

2. INFLATIONARY ADJUSTMENTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

3. ECONOMIC CRIME. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

4. HYDROCODONE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

5. MITIGATING ROLE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

6. “SINGLE SENTENCE” RULE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

7. TECHNICAL AMENDMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

The United States Sentencing Commission is an independent agency in the judicial branch of the United

States Government. The Commission promulgates sentencing guidelines and policy statements for

federal sentencing courts pursuant to 28 U.S.C. § 994(a). The Commission also periodically reviews and

revises previously promulgated guidelines pursuant to 28 U.S.C. § 994(o) and generally submits

guideline amendments to Congress pursuant to 28 U.S.C. § 994(p) not later than the first day of May

each year. Absent action of Congress to the contrary, submitted amendments become effective by

operation of law on the date specified by the Commission (generally November 1 of the year in which the

amendments are submitted to Congress).

The Commission specified an effective date of November 1, 2015, for the amendments listed above and

included in this compilation.

1. JOINTLY UNDERTAKEN CRIMINAL ACTIVITY

Reason for Amendment: This amendment is a result of the Commission’s effort to clarify the use of

relevant conduct in offenses involving multiple participants.

The amendment makes clarifying revisions to §1B1.3 (Relevant Conduct (Factors that Determine the

Guideline Range)). It restructures the guideline and its commentary to set out more clearly the three-

step analysis the court applies in determining whether a defendant is accountable for the conduct of

others in a jointly undertaken criminal activity under §1B1.3(a)(1)(B). The three-step analysis requires

that the court (1) identify the scope of the jointly undertaken criminal activity; (2) determine whether the

conduct of others in the jointly undertaken criminal activity was in furtherance of that criminal activity;

and (3) determine whether the conduct of others was reasonably foreseeable in connection with that

criminal activity.

Prior to this amendment, the “scope” element of the three-step analysis was identified in the

commentary to §1B1.3 but was not included in the text of the guideline itself. This amendment makes

clear that, under the “jointly undertaken criminal activity” provision, a defendant is accountable for the

conduct of others in a jointly undertaken criminal activity if the conduct meets all three criteria of the

three-step analysis. This amendment is not intended as a substantive change in policy.

Amendment:

§1B1.3. Relevant Conduct (Factors that Determine the Guideline Range)

(a) Chapters Two (Offense Conduct) and Three (Adjustments). Unless otherwise

specified, (i) the base offense level where the guideline specifies more than one

base offense level, (ii) specific offense characteristics and (iii) cross references

in Chapter Two, and (iv) adjustments in Chapter Three, shall be determined on

the basis of the following:

(1) (A) all acts and omissions committed, aided, abetted, counseled,

commanded, induced, procured, or willfully caused by the

defendant; and

(B) in the case of a jointly undertaken criminal activity (a criminal

plan, scheme, endeavor, or enterprise undertaken by the

defendant in concert with others, whether or not charged as a

conspiracy), all reasonably foreseeable acts and omissions of

others in furtherance of the jointly undertaken criminal activity,

all acts and omissions of others that were—

(i) within the scope of the jointly undertaken criminal

activity,

(ii) in furtherance of that criminal activity, and

(iii) reasonably foreseeable in connection with that criminal

activity;

that occurred during the commission of the offense of conviction, in

preparation for that offense, or in the course of attempting to avoid

detection or responsibility for that offense;

(2) solely with respect to offenses of a character for which §3D1.2(d) would

require grouping of multiple counts, all acts and omissions described in

subdivisions (1)(A) and (1)(B) above that were part of the same course

of conduct or common scheme or plan as the offense of conviction;

(3) all harm that resulted from the acts and omissions specified in

subsections (a)(1) and (a)(2) above, and all harm that was the object of

such acts and omissions; and

(4) any other information specified in the applicable guideline.

(b) Chapters Four (Criminal History and Criminal Livelihood) and Five

(Determining the Sentence). Factors in Chapters Four and Five that establish the

guideline range shall be determined on the basis of the conduct and information

specified in the respective guidelines.

Commentary

Application Notes:

1. The principles and limits of sentencing accountability under this guideline are not always the

same as the principles and limits of criminal liability. Under subsections (a)(1) and (a)(2), the

focus is on the specific acts and omissions for which the defendant is to be held accountable in

determining the applicable guideline range, rather than on whether the defendant is criminally

liable for an offense as a principal, accomplice, or conspirator.

2. Accountability Under More Than One Provision.—[In certain cases, a defendant may be

accountable for particular conduct under more than one subsection of this guideline. If a

defendant’s accountability for particular conduct is established under one provision of this

guideline, it is not necessary to review alternative provisions under which such accountability

might be established.]

2.3. Jointly Undertaken Criminal Activity (Subsection (a)(1)(B)).—

(A) In General.—A “jointly undertaken criminal activity” is a criminal plan, scheme,

endeavor, or enterprise undertaken by the defendant in concert with others, whether or

not charged as a conspiracy.

In the case of a jointly undertaken criminal activity, subsection (a)(1)(B) provides that a

The bracketed text currently appears in the commentary in the illustration referring to Defendants A and B. The

proposed amendment would place the text here, while also leaving it intact in the illustration.

defendant is accountable for the conduct (acts and omissions) of others that was both:

(i) within the scope of the jointly undertaken criminal activity;

(Aii) in furtherance of the jointly undertakenthat criminal activity; and

(Biii) reasonably foreseeable in connection with that criminal activity.

[The conduct of others that was both in furtherance of, and reasonably foreseeable in

connection with, the criminal activity jointly undertaken by the defendant meets all three

criteria set forth in subdivisions (i) through (iii) (i.e., “within the scope,” “in

furtherance,” and “reasonably foreseeable”) is relevant conduct under this provision.

However, when the conduct of others does not meet any one of the criteria set forth in

subdivisions (i) through (iii), the conduct isThe conduct of others that was not in

furtherance of the criminal activity jointly undertaken by the defendant, or was not

reasonably foreseeable in connection with that criminal activity, is not relevant conduct

under this provision.]

(B) Scope.—Because a count may be worded broadly and include the conduct of many

participants over a period of time, the scope of the criminal activity jointly undertaken

by the defendant (the “jointly undertaken criminal activity”) is not necessarily the same

as the scope of the entire conspiracy, and hence relevant conduct is not necessarily the

same for every participant. In order to determine the defendant’s accountability for the

conduct of others under subsection (a)(1)(B), the court must first determine the scope of

the criminal activity the particular defendant agreed to jointly undertake (i.e., the scope

of the specific conduct and objectives embraced by the defendant’s agreement).

In determining the scope of the criminal activity that the particular defendant agreed to

jointly undertake (i.e., the scope of the specific conduct and objectives embraced by the

defendant’s agreement), In doing so, the court may consider any explicit agreement or

implicit agreement fairly inferred from the conduct of the defendant and others.

Accordingly, the accountability of the defendant for the acts of others is limited by the

scope of his or her agreement to jointly undertake the particular criminal activity. Acts

of others that were not within the scope of the defendant’s agreement, even if those acts

were known or reasonably foreseeable to the defendant, are not relevant conduct under

subsection (a)(1)(B).

[inIn cases involving contraband (including controlled substances), the scope of the

jointly undertaken criminal activity (and thus the accountability of the defendant for the

contraband that was the object of that jointly undertaken activity) may depend upon

whether, in the particular circumstances, the nature of the offense is more appropriately

viewed as one jointly undertaken criminal activity or as a number of separate criminal

The bracketed text was originally placed as part of the third paragraph of the current Application Note 2.

activities.]

***

[A defendant’s relevant conduct does not include the conduct of members of a

conspiracy prior to the defendant joining the conspiracy, even if the defendant knows of

that conduct (e.g., in the case of a defendant who joins an ongoing drug distribution

conspiracy knowing that it had been selling two kilograms of cocaine per week, the

cocaine sold prior to the defendant joining the conspiracy is not included as relevant

conduct in determining the defendant’s offense level). The Commission does not

foreclose the possibility that there may be some unusual set of circumstances in which

the exclusion of such conduct may not adequately reflect the defendant’s culpability; in

such a case, an upward departure may be warranted.]

****

was in furtherance of the jointly undertaken criminal activity.

(D) Reasonably Foreseeable.—The court must then determine if the conduct (acts and

omissions) of others that was within the scope of, and in furtherance of, the jointly

undertaken criminal activity was reasonably foreseeable in connection with that

criminal activity.

Note that the criminal activity that the defendant agreed to jointly undertake, and the

reasonably foreseeable conduct of others in furtherance of that criminal activity, are not

necessarily identical. For example, two defendants agree to commit a robbery and,

during the course of that robbery, the first defendant assaults and injures a victim. The

second defendant is accountable for the assault and injury to the victim (even if the

second defendant had not agreed to the assault and had cautioned the first defendant to

be careful not to hurt anyone) because the assaultive conduct was within the scope of the

jointly undertaken criminal activity (the robbery), was in furtherance of the jointly

undertakenthat criminal activity (the robbery), and was reasonably foreseeable in

connection with that criminal activity (given the nature of the offense).

With respect to offenses involving contraband (including controlled substances), the

defendant is accountable under subsection (a)(1)(A) for all quantities of contraband with

which he was directly involved and, in the case of a jointly undertaken criminal activity

under subsection (a)(1)(B), all reasonably foreseeable quantities of contraband that

were involved in transactions carried out by other participants, if those transactions

were within the scope of, and in furtherance of, the jointly undertaken criminal activity

that he jointly undertook and were reasonably foreseeable in connection with that

criminal activity.

The requirement of reasonable foreseeability applies only in respect to the conduct (i.e.,

The bracketed text was originally placed as the last paragraph in example (c)(8) of the “Illustrations of Conduct for

***

Which the Defendant is Accountable.”

The bracketed text was originally placed as the last paragraph of Application Note 2, before the “Illustrations of

****

Conduct for Which the Defendant is Accountable.”

acts and omissions) of others under subsection (a)(1)(B). It does not apply to conduct

that the defendant personally undertakes, aids, abets, counsels, commands, induces,

procures, or willfully causes; such conduct is addressed under subsection (a)(1)(A).

4. Illustrations of Conduct for Which the Defendant is Accountable under Subsections (a)(1)(A) and

(B).—

(aA) Acts and omissions aided or abetted by the defendant.—

(1i) Defendant A is one of ten persons hired by Defendant B to off-load a ship

containing marihuana. The off-loading of the ship is interrupted by law

enforcement officers and one ton of marihuana is seized (the amount on the ship

as well as the amount off-loaded). Defendant A and the other off-loaders are

arrested and convicted of importation of marihuana. Regardless of the number

of bales he personally unloaded, Defendant A is accountable for the entire one-

ton quantity of marihuana. Defendant A aided and abetted the off-loading of the

entire shipment of marihuana by directly participating in the off-loading of that

shipment (i.e., the specific objective of the criminal activity he joined was the

off-loading of the entire shipment). Therefore, he is accountable for the entire

shipment under subsection (a)(1)(A) without regard to the issue of reasonable

foreseeability. This is conceptually similar to the case of a defendant who

transports a suitcase knowing that it contains a controlled substance and,

therefore, is accountable for the controlled substance in the suitcase regardless

of his knowledge or lack of knowledge of the actual type or amount of that

controlled substance.

In certain cases, a defendant may be accountable for particular conduct under

more than one subsection of this guideline. As noted in the preceding

paragraph, Defendant A is accountable for the entire one-ton shipment of

marihuana under subsection (a)(1)(A). Defendant A also is accountable for the

entire one-ton shipment of marihuana on the basis of subsection

(a)(1)(B)(applying to a jointly undertaken criminal activity). Defendant A

engaged in a jointly undertaken criminal activity and all three criteria of

subsection (a)(1)(B) are met. First, the conduct was within the scope of the

criminal activity (the scope of which was the importation of the shipment of

marihuana). Second, the off-loading of the shipment of marihuana was in

furtherance of the criminal activity, as described above. And third, a A finding

that the one-ton quantity of marihuana was reasonably foreseeable is warranted

from the nature of the undertaking itself (the importation of marihuana by ship

typically involves very large quantities of marihuana). The specific

circumstances of the case (the defendant was one of ten persons off-loading the

marihuana in bales) also support this finding. In an actual case, of course, if a

defendant’s accountability for particular conduct is established under one

provision of this guideline, it is not necessary to review alternative provisions

under which such accountability might be established. See Application Note 2.

(bB) Acts and omissions aided or abetted by the defendant; requirement that the conduct of

others be in furtherance of the jointly undertaken criminal activity and reasonably

foreseeableacts and omissions in a jointly undertaken criminal activity.—

(1i) Defendant C is the getaway driver in an armed bank robbery in which $15,000 is

taken and a teller is assaulted and injured. Defendant C is accountable for the

money taken under subsection (a)(1)(A) because he aided and abetted the act of

taking the money (the taking of money was the specific objective of the offense he

joined). Defendant C is accountable for the injury to the teller under subsection

(a)(1)(B) because the assault on the teller was within the scope and in

furtherance of the jointly undertaken criminal activity (the robbery), and was

reasonably foreseeable in connection with that criminal activity (given the

nature of the offense).

As noted earlier, a defendant may be accountable for particular conduct under

more than one subsection. In this example, Defendant C also is accountable for

the money taken on the basis of subsection (a)(1)(B) because the taking of money

was within the scope and in furtherance of the jointly undertaken criminal

activity (the robbery), and was reasonably foreseeable (as noted, the taking of

money was the specific objective of the jointly undertaken criminal activity).

(cC) Requirements that the conduct of others be within the scope of the jointly undertaken

criminal activity, in furtherance of the jointly undertakenthat criminal activity, and

reasonably foreseeable; scope of the criminal activity.—

(1i) Defendant D pays Defendant E a small amount to forge an endorsement on an

$800 stolen government check. Unknown to Defendant E, Defendant D then

uses that check as a down payment in a scheme to fraudulently obtain $15,000

worth of merchandise. Defendant E is convicted of forging the $800 check and

is accountable for the forgery of this check under subsection (a)(1)(A).

Defendant E is not accountable for the $15,000 because the fraudulent scheme

to obtain $15,000 was not in furtherancewithin the scope of the jointly

undertaken criminal activity he jointly undertook with Defendant D (i.e., the

forgery of the $800 check).

(2ii) Defendants F and G, working together, design and execute a scheme to sell

fraudulent stocks by telephone. Defendant F fraudulently obtains $20,000.

Defendant G fraudulently obtains $35,000. Each is convicted of mail fraud.

Defendants F and G each are accountable for the entire amount ($55,000).

Each defendant is accountable for the amount he personally obtained under

subsection (a)(1)(A). Each defendant is accountable for the amount obtained by

his accomplice under subsection (a)(1)(B) because the conduct of each was

within the scope of the jointly undertaken criminal activity (the scheme to sell

fraudulent stocks), was in furtherance of the jointly undertakenthat criminal

activity, and was reasonably foreseeable in connection with that criminal

activity.

(3iii) Defendants H and I engaged in an ongoing marihuana importation conspiracy

in which Defendant J was hired only to help off-load a single shipment.

Defendants H, I, and J are included in a single count charging conspiracy to

import marihuana. Defendant J is accountable for the entire single shipment of

marihuana he helped import under subsection (a)(1)(A) and any acts and

omissions of others related to in furtherance of the importation of that shipment

on the basis of subsection (a)(1)(B)that were reasonably foreseeable (see the

discussion in example (A)(i) above). He is not accountable for prior or

subsequent shipments of marihuana imported by Defendants H or I because

those acts were not in furtherance within the scope of his jointly undertaken

criminal activity (the importation of the single shipment of marihuana).

(4iv) Defendant K is a wholesale distributor of child pornography. Defendant L is a

retail-level dealer who purchases child pornography from Defendant K and

resells it, but otherwise operates independently of Defendant K. Similarly,

Defendant M is a retail-level dealer who purchases child pornography from

Defendant K and resells it, but otherwise operates independently of Defendant

K. Defendants L and M are aware of each other’s criminal activity but operate

independently. Defendant N is Defendant K’s assistant who recruits customers

for Defendant K and frequently supervises the deliveries to Defendant K’s

customers. Each defendant is convicted of a count charging conspiracy to

distribute child pornography. Defendant K is accountable under subsection

(a)(1)(A) for the entire quantity of child pornography sold to Defendants L and

M. Defendant N also is accountable for the entire quantity sold to those

defendants under subsection (a)(1)(B) because the entire quantity was within the

scope of his jointly undertaken criminal activity (to distribute child pornography

with Defendant K), in furtherance of that criminal activity, and reasonably

foreseeable. Defendant L is accountable under subsection (a)(1)(A) only for the

quantity of child pornography that he purchased from Defendant K because the

scope of his jointly undertaken criminal activity is limited to that amount he is

not engaged in a jointly undertaken criminal activity with the other defendants.

For the same reason, Defendant M is accountable under subsection (a)(1)(A)

only for the quantity of child pornography that he purchased from Defendant K.

(5v) Defendant O knows about her boyfriend’s ongoing drug-trafficking activity, but

agrees to participate on only one occasion by making a delivery for him at his

request when he was ill. Defendant O is accountable under subsection (a)(1)(A)

for the drug quantity involved on that one occasion. Defendant O is not

accountable for the other drug sales made by her boyfriend because those sales

were not in furtherance within the scope of her jointly undertaken criminal

activity (i.e., the one delivery).

(6vi) Defendant P is a street-level drug dealer who knows of other street-level drug

dealers in the same geographic area who sell the same type of drug as he sells.

Defendant P and the other dealers share a common source of supply, but

otherwise operate independently. Defendant P is not accountable for the

quantities of drugs sold by the other street-level drug dealers because he is not

engaged in a jointly undertaken criminal activity with them. In contrast,

Defendant Q, another street-level drug dealer, pools his resources and profits

with four other street-level drug dealers. Defendant Q is engaged in a jointly

undertaken criminal activity and, therefore, he is accountable under subsection

(a)(1)(B) for the quantities of drugs sold by the four other dealers during the

course of his joint undertaking with them because those sales were within the

scope of the jointly undertaken criminal activity, in furtherance of the jointly

undertaken that criminal activity, and reasonably foreseeable in connection with

that criminal activity.

(7vii) Defendant R recruits Defendant S to distribute 500 grams of cocaine. Defendant

S knows that Defendant R is the prime figure in a conspiracy involved in

importing much larger quantities of cocaine. As long as Defendant S’s

agreement and conduct is limited to the distribution of the 500 grams, Defendant

S is accountable only for that 500 gram amount (under subsection (a)(1)(A)),

rather than the much larger quantity imported by Defendant R. Defendant S is

not accountable under subsection (a)(1)(B) for the other quantities imported by

Defendant R because those quantities were not within the scope of his jointly

undertaken criminal activity (i.e., the 500 grams).

(8viii) Defendants T, U, V, and W are hired by a supplier to backpack a quantity of

marihuana across the border from Mexico into the United States. Defendants T,

U, V, and W receive their individual shipments from the supplier at the same

time and coordinate their importation efforts by walking across the border

together for mutual assistance and protection. Each defendant is accountable

for the aggregate quantity of marihuana transported by the four defendants. The

four defendants engaged in a jointly undertaken criminal activity, the object of

which was the importation of the four backpacks containing marihuana

(subsection (a)(1)(B)), and aided and abetted each other’s actions (subsection

(a)(1)(A)) in carrying out the jointly undertaken criminal activity (which under

subsection (a)(1)(B) were also in furtherance of, and reasonably foreseeable in

connection with, the criminal activity). In contrast, if Defendants T, U, V, and W

were hired individually, transported their individual shipments at different times,

and otherwise operated independently, each defendant would be accountable

only for the quantity of marihuana he personally transported (subsection

(a)(1)(A)). As this example illustrates, in cases involving contraband (including

controlled substances), the scope of the jointly undertaken criminal activity (and

thus the accountability of the defendant for the contraband that was the object of

that jointly undertaken activity) may depend upon whether, in the particular

circumstances, the nature of the offense is more appropriately viewed as one

jointly undertaken criminal activity or as a number of separate criminal

activities. See Application Note 3(B).

35. * * *

46. * * *

57. * * *

68. * * *

79. * * *

810. * * *

911. * * *

1012. * * *

* * *

§2K2.1. Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition;

Prohibited Transactions Involving Firearms or Ammunition

* * *

Commentary

* * *

Application Notes:

* * *

14. Application of Subsections (b)(6)(B) and (c)(1).—

* * *

(E) Relationship Between the Instant Offense and the Other Offense.—In determining

whether subsections (b)(6)(B) and (c)(1) apply, the court must consider the relationship

between the instant offense and the other offense, consistent with relevant conduct

principles. See §1B1.3(a)(1)–(4) and accompanying commentary.

* * *

(i) Firearm Cited in the Offense of Conviction. Defendant A’s offense of conviction

is for unlawfully possessing a shotgun on October 15. The court determines

that, on the preceding February 10, Defendant A used the shotgun in connection

with a robbery. Ordinarily, under these circumstances, subsection (b)(6)(B)

applies, and the cross reference in subsection (c)(1) also applies if it results in a

greater offense level.

Ordinarily, the unlawful possession of the shotgun on February 10 will be “part

of the same course of conduct or common scheme or plan” as the unlawful

possession of the same shotgun on October 15. See §1B1.3(a)(2) and

accompanying commentary (including, in particular, the factors discussed in

Application Note 911 to §1B1.3). The use of the shotgun “in connection with”

the robbery is relevant conduct because it is a factor specified in subsections

(b)(6)(B) and (c)(1). See §1B1.3(a)(4) (“any other information specified in the

applicable guideline”).

(ii) Firearm Not Cited in the Offense of Conviction. Defendant B’s offense of

conviction is for unlawfully possessing a shotgun on October 15. The court

determines that, on the preceding February 10, Defendant B unlawfully

possessed a handgun (not cited in the offense of conviction) and used the

handgun in connection with a robbery.

Subsection (b)(6)(B). In determining whether subsection (b)(6)(B) applies, the

threshold question for the court is whether the two unlawful possession offenses

(the shotgun on October 15 and the handgun on February 10) were “part of the

same course of conduct or common scheme or plan”. See §1B1.3(a)(2) and

accompanying commentary (including, in particular, the factors discussed in

Application Note 911 to §1B1.3).

* * *

§2X3.1. Accessory After the Fact

* * *

Commentary

* * *

Application Notes:

1. Definition.—For purposes of this guideline, “underlying offense” means the offense as to which

the defendant is convicted of being an accessory, or in the case of a violation of 18 U.S.C.

§ 2339A, “underlying offense” means the offense the defendant is convicted of having materially

supported after its commission (i.e., in connection with the concealment of or an escape from

that offense), or in the case of a violation of 18 U.S.C. § 2339C(c)(2)(A), “underlying offense”

means the violation of 18 U.S.C. § 2339B with respect to which the material support or

resources were concealed or disguised. Apply the base offense level plus any applicable specific

offense characteristics that were known, or reasonably should have been known, by the

defendant; see Application Note 1012 of the Commentary to §1B1.3 (Relevant Conduct).

* * *

§2X4.1. Misprision of Felony

* * *

Commentary

* * *

Application Notes:

1. “Underlying offense” means the offense as to which the defendant is convicted of committing the

misprision. Apply the base offense level plus any applicable specific offense characteristics that

were known, or reasonably should have been known, by the defendant; see Application Note

1012 of the Commentary to §1B1.3 (Relevant Conduct).

* * *

2. INFLATIONARY ADJUSTMENTS

Reason for Amendment: This amendment makes adjustments to the monetary tables in §§2B1.1 (Theft,

Property, Destruction, and Fraud), 2B2.1 (Burglary), 2B3.1 (Robbery), 2R1.1 (Bid-Rigging, Price-Fixing

or Market-Allocation Agreements Among Competitors), 2T4.1 (Tax Table), 5E1.2 (Fines for Individual

Defendants), and 8C2.4 (Base Fine) to account for inflation. The amendment adjusts the amounts in

each of the seven monetary tables using a specific multiplier derived from the Consumer Price Index

(CPI), and then rounds—

• amounts greater than $100,000,000 to the nearest multiple of $50,000,000;

• amounts greater than $10,000,000 to the nearest multiple of $5,000,000;

• amounts greater than $1,000,000 to the nearest multiple of $500,000;

• amounts greater than $100,000 to the nearest multiple of $50,000;

• amounts greater than $10,000 to the nearest multiple of $5,000;

• amounts greater than $1,000 to the nearest multiple of $500; and

• amounts of $1,000 or less to the nearest multiple of $50.

In addition, the amendment includes conforming changes to other Chapter Two guidelines that refer to

the monetary tables.

Congress has generally mandated that agencies in the executive branch adjust the civil monetary

penalties they impose to account for inflation using the CPI. See 28 U.S.C. § 2461 note (Federal Civil

Penalties Inflationary Adjustment Act of 1990). Although the Commission’s work does not involve civil

monetary penalties, it does establish appropriate criminal sentences for categories of offenses and

offenders, including appropriate amounts for criminal fines. While some of the monetary values in the

Chapter Two guidelines have been revised since they were originally established in 1987, none of the

tables has been specifically revised to account for inflation.

Due to inflationary changes, there has been a gradual decrease in the value of the dollar over time. As a

result, monetary losses in current offenses reflect, to some degree, a lower degree of harm and

culpability than did equivalent amounts when the monetary tables were established or last substantively

amended. Similarly, the fine levels recommended by the guidelines are lower in value than when they

were last adjusted, and therefore, do not have the same sentencing impact as a similar fine in the past.

Based on its analysis and widespread support for inflationary adjustments expressed in public comment,

the Commission concluded that aligning the above monetary tables with modern dollar values is an

appropriate step at this time.

The amendment adjusts each table based on inflationary changes since the year each monetary table was

last substantially amended:

• Loss table in §2B1.1 and tax table in §2T4.1: adjusting for inflation from 2001 ($1.00 in

2001 = $1.34 in 2014);

• Loss tables in §§2B2.1 and 2B3.1 and fine table for individual defendants at

§5E1.2(c)(3): adjusting for inflation from 1989 ($1.00 in 1989 = $1.91 in 2014);

• Volume of Commerce table in §2R1.1: adjusting for inflation from 2005 ($1.00 in 2005

= $1.22 in 2014); and

• Fine table for organizational defendants at §8C2.4(d): adjusting for inflation from 1991

($1.00 in 1991 = $1.74 in 2014).

Adjusting from the last substantive amendment year appropriately accounts for the Commission’s

previous work in revising these tables at various times. Although not specifically focused on inflationary

issues, previous Commissions engaged in careful examination (and at times, a wholesale rewriting) of

the monetary tables and ultimately included monetary and enhancement levels that it considered

appropriate at that time. The Commission estimates that this amendment would result in the Bureau of

Prisons having approximately 224 additional prison beds available at the end of the first year after

implementation, and approximately 956 additional prison beds available at the end of its fifth year of

implementation.

Finally, the amendment adds a special instruction to both §§5E1.2 and 8C2.4 providing that,

for offenses committed prior to November 1, 2015, the court shall use the fine provisions that were in

effect on November 1, 2014, rather than the fine provisions as amended for inflation. This addition

responds to concerns expressed in public comment that changes to the fine tables might create ex post

facto problems. It ensures that an offender whose offense level is calculated under the current

Guidelines Manual is not subject to the inflated fine provisions if his or her offense was committed prior

to November 1, 2015. Such guidance is similar to that provided in the commentary to §5E1.3 (Special

Assessment) relating to the amount of the special assessment to be imposed in a given case.

Amendment:

§2B1.1. Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen

Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses

Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer

Obligations of the United States

* * *

(b) Specific Offense Characteristics

(1) If the loss exceeded $5,000$6,500, increase the offense level as follows:

[Multiplier Comparison Loss (Apply the Greatest) Increase in Level

to Current Table]

[1.30] (A) $5,000$6,500 or less no increase

[1.30] (B) More than $5,000$6,500 add 2

[1.50] (C) More than $10,000$15,000 add 4

[1.33] (D) More than $30,000$40,000 add 6

[1.36] (E) More than $70,000$95,000 add 8

[1.25] (F) More than $120,000$150,000 add 10

[1.25] (G) More than $200,000$250,000 add 12

[1.38] (H) More than $400,000$550,000 add 14

[1.50] (I) More than $1,000,000$1,500,000 add 16

[1.40] (J) More than $2,500,000$3,500,000 add 18

[1.36] (K) More than $7,000,000$9,500,000 add 20

[1.25] (L) More than $20,000,000$25,000,000 add 22

[1.30] (M) More than $50,000,000$65,000,000 add 24

[1.50] (N) More than $100,000,000$150,000,000 add 26

[1.25] (O) More than $200,000,000$250,000,000 add 28

[1.38] (P) More than $400,000,000$550,000,000 add 30.

* * *

§2B1.4. Insider Trading

* * *

(b) Specific Offense Characteristics

(1) If the gain resulting from the offense exceeded $5,000$6,500, increase

by the number of levels from the table in §2B1.1 (Theft, Property

Destruction, and Fraud) corresponding to that amount.

* * *

§2B1.5. Theft of, Damage to, or Destruction of, Cultural Heritage Resources or Paleonto-

logical Resources; Unlawful Sale, Purchase, Exchange, Transportation, or Receipt

of Cultural Heritage Resources or Paleontological Resources

* * *

(b) Specific Offense Characteristics

(1) If the value of the cultural heritage resource or paleontological resource

(A) exceeded $2,000$2,500 but did not exceed $5,000$6,500, increase

by 1 level; or (B) exceeded $5,000$6,500, increase by the number of

levels from the table in §2B1.1 (Theft, Property Destruction, and Fraud)

corresponding to that amount.

* * *

§2B2.1. Burglary of a Residence or a Structure Other than a Residence

* * *

(b) Specific Offense Characteristics

* * *

(2) If the loss exceeded $2,500$5,000, increase the offense level as follows:

[Multiplier Comparison Loss (Apply the Greatest) Increase in Level

to Current Table]

[2.00] (A) $2,500$5,000 or less no increase

[2.00] (B) More than $2,500$5,000 add 1

[2.00] (C) More than $10,000$20,000 add 2

[1.90] (D) More than $50,000$95,000 add 3

[2.00] (E) More than $250,000$500,000 add 4

[1.88] (F) More than $800,000$1,500,000 add 5

[2.00] (G) More than $1,500,000$3,000,000 add 6

[2.00] (H) More than $2,500,000$5,000,000 add 7

[1.90] (I) More than $5,000,000$9,500,000 add 8.

* * *

§2B2.3. Trespass

* * *

(b) Specific Offense Characteristics

* * *

(3) If (A) the offense involved invasion of a protected computer; and (B) the

loss resulting from the invasion (i) exceeded $2,000$2,500 but did not

exceed $5,000$6,500, increase by 1 level; or (ii) exceeded $5,000$6,500,

increase by the number of levels from the table in §2B1.1 (Theft,

Property Destruction, and Fraud) corresponding to that amount.

* * *

§2B3.1. Robbery

* * *

(b) Specific Offense Characteristics

* * *

(7) If the loss exceeded $10,000$20,000, increase the offense level as

follows:

[Multiplier Comparison Loss (Apply the Greatest) Increase in Level

to Current Table]

[2.00] (A) $10,000$20,000 or less no increase

[2.00] (B) More than $10,000$20,000 add 1

[1.90] (C) More than $50,000$95,000 add 2

[2.00] (D) More than $250,000$500,000 add 3

[1.88] (E) More than $800,000$1,500,000 add 4

[2.00] (F) More than $1,500,000$3,000,000 add 5

[2.00] (G) More than $2,500,000$5,000,000 add 6

[1.90] (H) More than $5,000,000$9,500,000 add 7.

* * *

§2B3.2. Extortion by Force or Threat of Injury or Serious Damage

* * *

(b) Specific Offense Characteristics

* * *

(2) If the greater of the amount demanded or the loss to the victim exceeded

$10,000$20,000, increase by the corresponding number of levels from

the table in §2B3.1(b)(7).

* * *

§2B3.3. Blackmail and Similar Forms of Extortion

* * *

(b) Specific Offense Characteristic

(1) If the greater of the amount obtained or demanded (A) exceeded

$2,000$2,500 but did not exceed $5,000$6,500, increase by 1 level; or

(B) exceeded $5,000$6,500, increase by the number of levels from the

table in §2B1.1 (Theft, Property Destruction, and Fraud) corresponding

to that amount.

* * *

§2B4.1. Bribery in Procurement of Bank Loan and Other Commercial Bribery

* * *

(b) Specific Offense Characteristics

(1) If the greater of the value of the bribe or the improper benefit to be

conferred (A) exceeded $2,000$2,500 but did not exceed $5,000$6,500,

increase by 1 level; or (B) exceeded $5,000$6,500, increase by the

number of levels from the table in §2B1.1 (Theft, Property Destruction,

and Fraud) corresponding to that amount.

* * *

§2B5.1. Offenses Involving Counterfeit Bearer Obligations of the United States

* * *

(b) Specific Offense Characteristics

(1) If the face value of the counterfeit items (A) exceeded $2,000$2,500 but

did not exceed $5,000$6,500, increase by 1 level; or (B) exceeded

$5,000$6,500, increase by the number of levels from the table in §2B1.1

(Theft, Property Destruction, and Fraud) corresponding to that amount.

* * *

§2B5.3. Criminal Infringement of Copyright or Trademark

* * *

(b) Specific Offense Characteristics

(1) If the infringement amount (A) exceeded $2,000$2,500 but did not

exceed $5,000$6,500, increase by 1 level; or (B) exceeded

$5,000$6,500, increase by the number of levels from the table in §2B1.1

(Theft, Property Destruction, and Fraud) corresponding to that amount.

* * *

§2B6.1. Altering or Removing Motor Vehicle Identification Numbers, or Trafficking in

Motor Vehicles or Parts with Altered or Obliterated Identification Numbers

* * *

(b) Specific Offense Characteristics

(1) If the retail value of the motor vehicles or parts (A) exceeded

$2,000$2,500 but did not exceed $5,000$6,500, increase by 1 level; or

(B) exceeded $5,000$6,500, increase by the number of levels from the

table in §2B1.1 (Theft, Property Destruction, and Fraud) corresponding

to that amount.

* * *

§2C1.1. Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official

Right; Fraud Involving the Deprivation of the Intangible Right to Honest Services

of Public Officials; Conspiracy to Defraud by Interference with Governmental

Functions

* * *

(b) Specific Offense Characteristics

* * *

(2) If the value of the payment, the benefit received or to be received in

return for the payment, the value of anything obtained or to be obtained

by a public official or others acting with a public official, or the loss to

the government from the offense, whichever is greatest, exceeded

$5,000$6,500, increase by the number of levels from the table in §2B1.1

(Theft, Property Destruction, and Fraud) corresponding to that amount.

* * *

§2C1.2. Offering, Giving, Soliciting, or Receiving a Gratuity

* * *

(b) Specific Offense Characteristics

* * *

(2) If the value of the gratuity exceeded $5,000$6,500, increase by the

number of levels from the table in §2B1.1 (Theft, Property Destruction,

and Fraud) corresponding to that amount.

* * *

§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

* * *

(b) Specific Offense Characteristics

(1) If the value of the illegal transactions exceeded $5,000$6,500, increase

by the number of levels from the table in §2B1.1 (Theft, Property

Destruction, and Fraud) corresponding to that amount.

* * *

§2E5.1. Offering, Accepting, or Soliciting a Bribe or Gratuity Affecting the Operation of an

Employee Welfare or Pension Benefit Plan; Prohibited Payments or Lending of

Money by Employer or Agent to Employees, Representatives, or Labor

Organizations

* * *

(b) Specific Offense Characteristics

* * *

(2) If the value of the prohibited payment or the value of the improper

benefit to the payer, whichever is greater (A) exceeded $2,000$2,500 but

did not exceed $5,000$6,500, increase by 1 level; or (B) exceeded

$5,000$6,500, increase by the number of levels from the table in §2B1.1

(Theft, Property Destruction, and Fraud) corresponding to that amount.

* * *

§2Q2.1. Offenses Involving Fish, Wildlife, and Plants

* * *

(b) Specific Offense Characteristics

* * *

(3) (If more than one applies, use the greater):

(A) If the market value of the fish, wildlife, or plants (i) exceeded

$2,000$2,500 but did not exceed $5,000$6,500, increase by 1

level; or (ii) exceeded $5,000$6,500, increase by the number of

levels from the table in §2B1.1 (Theft, Property Destruction, and

Fraud) corresponding to that amount; or

* * *

§2R1.1. Bid-Rigging, Price-Fixing or Market-Allocation Agreements Among Competitors

* * *

(b) Specific Offense Characteristics

* * *

(2) If the volume of commerce attributable to the defendant was more than

$1,000,000, adjust the offense level as follows:

[Multiplier Comparison Volume of Adjustment to

to Current Table] Commerce (Apply the Greatest) Offense Level

[1.00] (A) More than $1,000,000 add 2

[1.00] (B) More than $10,000,000 add 4

[1.25] (C) More than $40,000,000$50,000,000 add 6

[1.00] (D) More than $100,000,000 add 8

[1.20] (E) More than $250,000,000$300,000,000 add 10

[1.20] (F) More than $500,000,000$600,000,000 add 12

[1.20] (G) More than $1,000,000,000$1,200,000,000 add 14

[1.23] (H) More than $1,500,000,000$1,850,000,000 add 16.

* * *

§2T3.1. Evading Import Duties or Restrictions (Smuggling); Receiving or Trafficking in

Smuggled Property

(a) Base Offense Level:

(1) The level from §2T4.1 (Tax Table) corresponding to the tax loss, if the

tax loss exceeded $1,000$1,500; or

(2) 5, if the tax loss exceeded $100$200 but did not exceed $1,000$1,500;

(3) 4, if the tax loss did not exceed $100$200.

For purposes of this guideline, the “tax loss” is the amount of the duty.

* * *

§2T4.1. Tax Table

[Multiplier Comparison Tax Loss (Apply the Greatest) Offense Level

to Current Table]

[1.25] (A) $2,000$2,500 or less 6

[1.25] (B) More than $2,000$2,500 8

[1.30] (C) More than $5,000$6,500 10

[1.20] (D) More than $12,500$15,000 12

[1.33] (E) More than $30,000$40,000 14

[1.25] (F) More than $80,000$100,000 16

[1.25] (G) More than $200,000$250,000 18

[1.38] (H) More than $400,000$550,000 20

[1.50] (I) More than $1,000,000$1,500,000 22

[1.40] (J) More than $2,500,000$3,500,000 24

[1.36] (K) More than $7,000,000$9,500,000 26

[1.25] (L) More than $20,000,000$25,000,000 28

[1.30] (M) More than $50,000,000$65,000,000 30

[1.50] (N) More than $100,000,000$150,000,000 32

[1.25] (O) More than $200,000,000$250,000,000 34

[1.38] (P) More than $400,000,000$550,000,000 36.

* * *

§5E1.2. Fines for Individual Defendants

(a) The court shall impose a fine in all cases, except where the defendant establishes

that he is unable to pay and is not likely to become able to pay any fine.

(b) The applicable fine guideline range is that specified in subsection (c) below. If,

however, the guideline for the offense in Chapter Two provides a specific rule

for imposing a fine, that rule takes precedence over subsection (c) of this section.

A of the table below.

* * *

(3) Fine Table

Offense A [Multiplier Comparison B [Multiplier Comparison

Level Minimum to Current Table] Maximum to Current Table]

3 and below $100$200 [2.00] $5,000$9,500 [1.90]

4-5 $250$500 [2.00] $5,000$9,500 [1.90]

6-7 $500$1,000 [2.00] $5,000$9,500 [1.90]

8-9 $1,000$2,000 [2.00] $10,000$20,000 [2.00]

10-11 $2,000$4,000 [2.00] $20,000$40,000 [2.00]

12-13 $3,000$5,500 [1.83] $30,000$55,000 [1.83]

14-15 $4,000$7,500 [1.88] $40,000$75,000 [1.88]

16-17 $5,000$10,000 [2.00] $50,000$95,000 [1.90]

18-19 $6,000$10,000 [1.67] $60,000$100,000 [1.67]

20-22 $7,500$15,000 [2.00] $75,000$150,000 [2.00]

23-25 $10,000$20,000 [2.00] $100,000$200,000 [2.00]

26-28 $12,500$25,000 [2.00] $125,000$250,000 [2.00]

29-31 $15,000$30,000 [2.00] $150,000$300,000 [2.00]

32-34 $17,500$35,000 [2.00] $175,000$350,000 [2.00]

35-37 $20,000$40,000 [2.00] $200,000$400,000 [2.00]

38 and above $25,000$50,000 [2.00] $250,000$500,000. [2.00]

(4) Subsection (c)(2), limiting the maximum fine, does not apply if the

defendant is convicted under a statute authorizing (A) a maximum fine

greater than $250,000$500,000, or (B) a fine for each day of violation.

In such cases, the court may impose a fine up to the maximum

authorized by the statute.

* * *

(h) Special Instruction

(1) For offenses committed prior to November 1, 2015, use the applicable

fine guideline range that was set forth in the version of §5E1.2(c) that

was in effect on November 1, 2014, rather than the applicable fine

guideline range set forth in subsection (c) above.

* * *

§8C2.4. Base Fine

* * *

(d) Offense Level Fine Table

[Multiplier Comparison Offense Level Amount

to Current Table]

[1.70] 6 or less $5,000$8,500

[2.00] 7 $7,500$15,000

[1.50] 8 $10,000$15,000

[1.67] 9 $15,000$25,000

[1.75] 10 $20,000$35,000

[1.67] 11 $30,000$50,000

[1.75] 12 $40,000$70,000

[1.67] 13 $60,000$100,000

[1.76] 14 $85,000$150,000

[1.60] 15 $125,000$200,000

[1.71] 16 $175,000$300,000

[1.80] 17 $250,000$450,000

[1.71] 18 $350,000$600,000

[1.70] 19 $500,000$850,000

[1.54] 20 $650,000$1,000,000

[1.65] 21 $910,000$1,500,000

[1.67] 22 $1,200,000$2,000,000

[1.88] 23 $1,600,000$3,000,000

[1.67] 24 $2,100,000$3,500,000

[1.79] 25 $2,800,000$5,000,000

[1.76] 26 $3,700,000$6,500,000

[1.77] 27 $4,800,000$8,500,000

[1.59] 28 $6,300,000$10,000,000

[1.85] 29 $8,100,000$15,000,000

[1.90] 30 $10,500,000$20,000,000

[1.85] 31 $13,500,000$25,000,000

[1.71] 32 $17,500,000$30,000,000

[1.81] 33 $22,000,000$40,000,000

[1.75] 34 $28,500,000$50,000,000

[1.81] 35 $36,000,000$65,000,000

[1.76] 36 $45,500,000$80,000,000

[1.74] 37 $57,500,000$100,000,000

[2.07] 38 or more $72,500,000$150,000,000.

(e) Special Instruction

(1) For offenses committed prior to November 1, 2015, use the offense level

fine table that was set forth in the version of §8C2.4(d) that was in effect

on November 1, 2014, rather than the offense level fine table set forth in

subsection (d) above.

* * *

3. ECONOMIC CRIME

Reason for Amendment: This amendment makes several changes to the guideline applicable to

economic crimes, §2B1.1 (Theft, Property Destruction, and Fraud), to better account for harm to victims,

individual culpability, and the offender’s intent. This amendment is a result of the Commission’s

multi-year study of §2B1.1 and related guidelines, and follows extensive data collection and analysis

relating to economic offenses and offenders. Using this Commission data, combined with legal analysis

and public comment, the Commission identified a number of specific areas where changes were

appropriate.

Victims Table

First, the amendment revises the victims table in §2B1.1(b)(2) to specifically incorporate substantial

financial hardship to victims as a factor in sentencing economic crime offenders. As amended, the first

tier of the victims table provides for a 2-level enhancement where the offense involved 10 or more victims

or mass-marketing, or if the offense resulted in substantial financial hardship to one or more victims.

The 4-level enhancement applies if the offense resulted in substantial financial hardship to five or more

victims, and the 6-level enhancement applies if the offense resulted in substantial financial hardship to

25 or more victims. As a conforming change, the special rule in Application Note 4(C)(ii)(I), pertaining

to theft of undelivered mail, is also revised to refer to 10 rather than 50 victims.

In addition, the amendment adds a non-exhaustive list of factors for courts to consider in determining

whether the offense caused substantial financial hardship. These factors include: becoming insolvent;

filing for bankruptcy; suffering substantial loss of a retirement, education, or other savings or investment

fund; making substantial changes to employment; making substantial changes to living arrangements; or

suffering substantial harm to the victim’s ability to obtain credit. Two conforming changes are also

included. First, one factor — substantial harm to ability to obtain credit — was previously included in

Application Note 20(A)(vi) as a potential departure consideration. The amendment removes this

language from the Application Note. Second, the amendment deletes subsection (b)(16)(B)(iii), which

provided for an enhancement where an offense substantially endangered the solvency or financial

security of 100 or more victims.

The Commission continues to believe that the number of victims is a meaningful measure of the harm and

scope of an offense and can be indicative of its seriousness. It is for this reason that the amended victims

table maintains the 2-level enhancement for offenses that involve 10 or more victims or mass marketing.

However, the revisions to the victims table also reflect the Commission’s conclusion that the guideline

should place greater emphasis on the extent of harm that particular victims suffer as a result of the

offense. Consistent with the Commission’s overall goal of focusing more on victim harm, the revised

victims table ensures that an offense that results in even one victim suffering substantial financial harm

receives increased punishment, while also lessening the cumulative impact of loss and the number of

victims, particularly in high-loss cases.

Intended Loss

Second, the amendment revises the commentary at §2B1.1, Application Note 3(A)(ii), which has defined

intended loss as “pecuniary harm that was intended to result from the offense.” In interpreting this

provision, courts have expressed some disagreement as to whether a subjective or an objective inquiry is

required. Compare United States v. Manatau, 647 F.3d 1048 (10th Cir. 2011) (holding that a subjective

inquiry is required), United States v. Diallo, 710 F.3d 147, 151 (3d Cir. 2013) (“To make this

determination, we look to the defendant’s subjective expectation, not to the risk of loss to which he may

have exposed his victims.”), United States v. Confredo, 528 F.3d 143, 152 (2d Cir. 2008) (remanding for

consideration of whether defendant had “proven a subjective intent to cause a loss of less than the

aggregate amount” of fraudulent loans), and United States v. Sanders, 343 F.3d 511, 527 (5th Cir. 2003)

(“our case law requires the government prove by a preponderance of the evidence that the defendant had

the subjective intent to cause the loss that is used to calculate his offense level”), with United States v.

Innarelli, 524 F.3d 286, 291 (1st Cir. 2008) (“we focus our loss inquiry for purposes of determining a

defendant’s offense level on the objectively reasonable expectation of a person in his position at the time

he perpetrated the fraud, not on his subjective intentions or hopes”) and United States v. Lane, 323 F.3d

568, 590 (7th Cir. 2003) (“The determination of intended loss under the Sentencing Guidelines therefore

focuses on the conduct of the defendant and the objective financial risk to victims caused by that

conduct”).

The amendment adopts the approach taken by the Tenth Circuit by revising the commentary in

Application Note 3(A)(ii) to provide that intended loss means the pecuniary harm that “the defendant

purposely sought to inflict.” The amendment reflects the Commission’s continued belief that intended

loss is an important factor in economic crime offenses, but also recognizes that sentencing enhancements

predicated on intended loss, rather than losses that have actually accrued, should focus more specifically

on the defendant’s culpability.

Sophisticated Means

Third, the amendment narrows the focus of the specific offense characteristic at §2B1.1(b)(10)(C) to

cases in which the defendant intentionally engaged in or caused conduct constituting sophisticated

means. Prior to the amendment, the enhancement applied if “the offense otherwise involved

sophisticated means.” Based on this language, courts had applied this enhancement on the basis of the

sophistication of the overall scheme without a determination of whether the defendant’s own conduct

was “sophisticated.” See, e.g., United States v. Green, 648 F.3d 569, 576 (7th Cir. 2011); United States

v. Bishop-Oyedepo, 480 Fed. App’x 431, 433-34 (7th Cir. 2012); United States v. Jenkins-Watt, 574 F.3d

950, 965 (8th Cir. 2009). The Commission concluded that basing the enhancement on the defendant’s

own intentional conduct better reflects the defendant’s culpability and will appropriately minimize

application of this enhancement to less culpable offenders.

Fraud on the Market

Finally, the amendment revises the special rule at Application Note 3(F)(ix) relating to the calculation of

loss in cases involving the fraudulent inflation or deflation in the value of a publicly traded security or

commodity. When this special rule was added to the guidelines, it established a rebuttable presumption

that the specified loss calculation methodology provides a reasonable estimate of the actual loss in such

cases. As amended, the method provided in the special rule is no longer the presumed starting point for

calculating loss in these cases. Instead, the revised special rule states that the provided method is one

method that courts may consider, but that courts, in determining loss, are free to use any method that is

appropriate and practicable under the circumstances. This amendment reflects the Commission’s view

that the most appropriate method to determine a reasonable estimate of loss will often vary in these

highly complex and fact-intensive cases.

This amendment, in combination with related revisions to the mitigating role guideline at §3B1.2

(Mitigating Role), reflects the Commission’s overall goal of focusing the economic crime guideline more

on qualitative harm to victims and individual offender culpability.

Amendment:

§2B1.1. Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen

Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses

Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer

Obligations of the United States

(a) Base Offense Level:

(1) 7, if (A) the defendant was convicted of an offense referenced to this

guideline; and (B) that offense of conviction has a statutory maximum

term of imprisonment of 20 years or more; or

(2) 6, otherwise.

(b) Specific Offense Characteristics

(1) If the loss exceeded $5,000, increase the offense level as follows:

Loss (Apply the Greatest) Increase in Level

(A) $5,000 or less no increase

(B) More than $5,000 add 2

(D) More than $30,000 add 6

(E) More than $70,000 add 8

(F) More than $120,000 add 10

(G) More than $200,000 add 12

(H) More than $400,000 add 14

(I) More than $1,000,000 add 16

(J) More than $2,500,000 add 18

(K) More than $7,000,000 add 20

(L) More than $20,000,000 add 22

(M) More than $50,000,000 add 24

(N) More than $100,000,000 add 26

(O) More than $200,000,000 add 28

(P) More than $400,000,000 add 30.

(2) (Apply the greatest) If the offense—

(A) (i) involved 10 or more victims; or (ii) was committed through

mass-marketing; or (iii) resulted in substantial financial hardship

to one or more victims, increase by 2 levels;

(B) involved 50 or more victimsresulted in substantial financial

hardship to five or more victims, increase by 4 levels; or

hardship to 25 or more victims, increase by 6 levels.

* * *

(10) If (A) the defendant relocated, or participated in relocating, a fraudulent

scheme to another jurisdiction to evade law enforcement or regulatory

officials; (B) a substantial part of a fraudulent scheme was committed

from outside the United States; or (C) the offense otherwise involved

sophisticated means and the defendant intentionally engaged in or

caused the conduct constituting sophisticated means, increase by 2

levels. If the resulting offense level is less than level 12, increase to

level 12.

* * *

(16) (Apply the greater) If—

(A) the defendant derived more than $1,000,000 in gross receipts

from one or more financial institutions as a result of the offense,

increase by 2 levels; or

(B) the offense (i) substantially jeopardized the safety and soundness

of a financial institution; or (ii) substantially endangered the

solvency or financial security of an organization that, at any time

during the offense, (I) was a publicly traded company; or (II) had

1,000 or more employees; or (iii) substantially endangered the

solvency or financial security of 100 or more victims, increase

by 4 levels.

subsections (b)(2) and (b)(16)(B) shall not exceed 8 levels,

except as provided in subdivision (D).

(D) If the resulting offense level determined under subdivision (A)

or (B) is less than level 24, increase to level 24.

* * *

Commentary

* * *

Application Notes:

* * *

3. Loss Under Subsection (b)(1).—This application note applies to the determination of loss under

subsection (b)(1).

(A) General Rule.—Subject to the exclusions in subdivision (D), loss is the greater of actual

loss or intended loss.

(i) Actual Loss.—“Actual loss” means the reasonably foreseeable pecuniary harm

that resulted from the offense.

(ii) Intended Loss.—“Intended loss” (I) means the pecuniary harm that was

intended to result from the offense the defendant purposely sought to inflict; and

(II) includes intended pecuniary harm that would have been impossible or

unlikely to occur (e.g., as in a government sting operation, or an insurance fraud

in which the claim exceeded the insured value).

(iii) Pecuniary Harm.—“Pecuniary harm” means harm that is monetary or that

otherwise is readily measurable in money. Accordingly, pecuniary harm does

not include emotional distress, harm to reputation, or other non-economic harm.

(iv) Reasonably Foreseeable Pecuniary Harm.—For purposes of this guideline,

“reasonably foreseeable pecuniary harm” means pecuniary harm that the

defendant knew or, under the circumstances, reasonably should have known,

was a potential result of the offense.

(v) Rules of Construction in Certain Cases.—In the cases described in subdivisions

(I) through (III), reasonably foreseeable pecuniary harm shall be considered to

include the pecuniary harm specified for those cases as follows:

(I) Product Substitution Cases.—In the case of a product substitution

offense, the reasonably foreseeable pecuniary harm includes the

reasonably foreseeable costs of making substitute transactions and

handling or disposing of the product delivered, or of retrofitting the

product so that it can be used for its intended purpose, and the

reasonably foreseeable costs of rectifying the actual or potential

disruption to the victim’s business operations caused by the product

substitution.

(II) Procurement Fraud Cases.—In the case of a procurement fraud, such as

a fraud affecting a defense contract award, reasonably foreseeable

pecuniary harm includes the reasonably foreseeable administrative costs

to the government and other participants of repeating or correcting the

procurement action affected, plus any increased costs to procure the

product or service involved that was reasonably foreseeable.

(III) Offenses Under 18 U.S.C. § 1030.—In the case of an offense under 18

U.S.C. § 1030, actual loss includes the following pecuniary harm,

regardless of whether such pecuniary harm was reasonably foreseeable:

any reasonable cost to any victim, including the cost of responding to an

offense, conducting a damage assessment, and restoring the data,

program, system, or information to its condition prior to the offense, and

any revenue lost, cost incurred, or other damages incurred because of

interruption of service.

(B) Gain.—The court shall use the gain that resulted from the offense as an alternative

measure of loss only if there is a loss but it reasonably cannot be determined.

sentencing judge is in a unique position to assess the evidence and estimate the loss

based upon that evidence. For this reason, the court’s loss determination is entitled to

appropriate deference. See 18 U.S.C. § 3742(e) and (f).

The estimate of the loss shall be based on available information, taking into account, as

appropriate and practicable under the circumstances, factors such as the following:

(i) The fair market value of the property unlawfully taken, copied, or destroyed; or,

if the fair market value is impracticable to determine or inadequately measures

the harm, the cost to the victim of replacing that property.

(ii) In the case of proprietary information (e.g., trade secrets), the cost of developing

that information or the reduction in the value of that information that resulted

from the offense.

(iii) The cost of repairs to damaged property.

(iv) The approximate number of victims multiplied by the average loss to each

victim.

(v) The reduction that resulted from the offense in the value of equity securities or

other corporate assets.

(vi) More general factors, such as the scope and duration of the offense and

revenues generated by similar operations.

(D) Exclusions from Loss.—Loss shall not include the following:

(i) Interest of any kind, finance charges, late fees, penalties, amounts based on an

agreed-upon return or rate of return, or other similar costs.

(ii) Costs to the government of, and costs incurred by victims primarily to aid the

government in, the prosecution and criminal investigation of an offense.

(E) Credits Against Loss.—Loss shall be reduced by the following:

(i) The money returned, and the fair market value of the property returned and the

services rendered, by the defendant or other persons acting jointly with the

defendant, to the victim before the offense was detected. The time of detection of

the offense is the earlier of (I) the time the offense was discovered by a victim or

government agency; or (II) the time the defendant knew or reasonably should

have known that the offense was detected or about to be detected by a victim or

government agency.

(ii) In a case involving collateral pledged or otherwise provided by the defendant,

the amount the victim has recovered at the time of sentencing from disposition of

the collateral, or if the collateral has not been disposed of by that time, the fair

market value of the collateral at the time of sentencing.

(iii) Notwithstanding clause (ii), in the case of a fraud involving a mortgage loan, if

the collateral has not been disposed of by the time of sentencing, use the fair

market value of the collateral as of the date on which the guilt of the defendant

has been established, whether by guilty plea, trial, or plea of nolo contendere.

In such a case, there shall be a rebuttable presumption that the most recent tax

assessment value of the collateral is a reasonable estimate of the fair market

value. In determining whether the most recent tax assessment value is a

reasonable estimate of the fair market value, the court may consider, among

other factors, the recency of the tax assessment and the extent to which the

jurisdiction’s tax assessment practices reflect factors not relevant to fair market

value.

(F) Special Rules.—Notwithstanding subdivision (A), the following special rules shall be

used to assist in determining loss in the cases indicated:

* * *

(ix) Fraudulent Inflation or Deflation in Value of Securities or Commodities.—In a

case involving the fraudulent inflation or deflation in the value of a publicly

traded security or commodity, there shall be a rebuttable presumption thatthe

court in determining loss may use any method that is appropriate and

practicable under the circumstances. One such method the court may consider

is a method under which the actual loss attributable to the change in value of the

security or commodity is the amount determined by—

(I) calculating the difference between the average price of the security or

commodity during the period that the fraud occurred and the average

price of the security or commodity during the 90-day period after the

fraud was disclosed to the market, and

(II) multiplying the difference in average price by the number of shares

outstanding.

In determining whether the amount so determined is a reasonable estimate of the

actual loss attributable to the change in value of the security or commodity, the

court may consider, among other factors, the extent to which the amount so

determined includes significant changes in value not resulting from the offense

(e.g., changes caused by external market forces, such as changed economic

circumstances, changed investor expectations, and new industry-specific or firm-

specific facts, conditions, or events).

* * *

4. Application of Subsection (b)(2).—

(A) Definition.—For purposes of subsection (b)(2), “mass-marketing” means a plan,

program, promotion, or campaign that is conducted through solicitation by telephone,

mail, the Internet, or other means to induce a large number of persons to (i) purchase

goods or services; (ii) participate in a contest or sweepstakes; or (iii) invest for financial

profit. “Mass-marketing” includes, for example, a telemarketing campaign that solicits

a large number of individuals to purchase fraudulent life insurance policies.

(B) Applicability to Transmission of Multiple Commercial Electronic Mail Messages.—For

purposes of subsection (b)(2), an offense under 18 U.S.C. § 1037, or any other offense

involving conduct described in 18 U.S.C. § 1037, shall be considered to have been

committed through mass-marketing. Accordingly, the defendant shall receive at least a

two-level enhancement under subsection (b)(2) and may, depending on the facts of the

case, receive a greater enhancement under such subsection, if the defendant was

convicted under, or the offense involved conduct described in, 18 U.S.C. § 1037.

(i) In General.—In a case in which undelivered United States mail was taken, or the

taking of such item was an object of the offense, or in a case in which the stolen

property received, transported, transferred, transmitted, or possessed was

undelivered United States mail, “victim” means (I) any victim as defined in

Application Note 1; or (II) any person who was the intended recipient, or

addressee, of the undelivered United States mail.

(ii) Special Rule.—A case described in subdivision (C)(i) of this note that involved—

(I) a United States Postal Service relay box, collection box, delivery

vehicle, satchel, or cart, shall be considered to have involved at least

5010 victims.

(II) a housing unit cluster box or any similar receptacle that contains

multiple mailboxes, whether such receptacle is owned by the United

States Postal Service or otherwise owned, shall, unless proven

otherwise, be presumed to have involved the number of victims

corresponding to the number of mailboxes in each cluster box or similar

receptacle.

(iii) Definition.—“Undelivered United States mail” means mail that has not actually

been received by the addressee or the addressee’s agent (e.g., mail taken from

the addressee’s mail box).

(D) Vulnerable Victims.—If subsection (b)(2)(B) or (C) applies, an enhancement under

§3A1.1(b)(2) shall not apply.

(E) Cases Involving Means of Identification.—For purposes of subsection (b)(2), in a case

involving means of identification “victim” means (i) any victim as defined in Application

Note 1; or (ii) any individual whose means of identification was used unlawfully or

without authority.

(F) Substantial Financial Hardship.—In determining whether the offense resulted in

substantial financial hardship to a victim, the court shall consider, among other factors,

whether the offense resulted in the victim—

(i) becoming insolvent;

(ii) filing for bankruptcy under the Bankruptcy Code (title 11, United States Code);

(iii) suffering substantial loss of a retirement, education, or other savings or

investment fund;

(iv) making substantial changes to his or her employment, such as postponing his or

her retirement plans;

(v) making substantial changes to his or her living arrangements, such as relocating

to a less expensive home; and

(vi) suffering substantial harm to his or her ability to obtain credit.

* * *

9. Sophisticated Means Enhancement underApplication of Subsection (b)(10).—

(A) Definition of United States.—For purposes of subsection (b)(10)(B), “United States”

means each of the 50 states, the District of Columbia, the Commonwealth of Puerto

Rico, the United States Virgin Islands, Guam, the Northern Mariana Islands, and

American Samoa.

(B) Sophisticated Means Enhancement under Subsection (b)(10)(C).—For purposes of

subsection (b)(10)(C), “sophisticated means” means especially complex or especially

intricate offense conduct pertaining to the execution or concealment of an offense. For

example, in a telemarketing scheme, locating the main office of the scheme in one

jurisdiction but locating soliciting operations in another jurisdiction ordinarily indicates

sophisticated means. Conduct such as hiding assets or transactions, or both, through

the use of fictitious entities, corporate shells, or offshore financial accounts also

ordinarily indicates sophisticated means.

an enhancement under subsection (b)(10) is the only conduct that forms the basis for an

adjustment under §3C1.1, do not apply that adjustment under §3C1.1.

* * *

20. Departure Considerations.—

(A) Upward Departure Considerations.—There may be cases in which the offense level

determined under this guideline substantially understates the seriousness of the offense.

In such cases, an upward departure may be warranted. The following is a non-

exhaustive list of factors that the court may consider in determining whether an upward

departure is warranted:

(i) A primary objective of the offense was an aggravating, non-monetary objective.

For example, a primary objective of the offense was to inflict emotional harm.

(ii) The offense caused or risked substantial non-monetary harm. For example, the

offense caused physical harm, psychological harm, or severe emotional trauma,

or resulted in a substantial invasion of a privacy interest (through, for example,

the theft of personal information such as medical, educational, or financial

records). An upward departure would be warranted, for example, in an 18

U.S.C. § 1030 offense involving damage to a protected computer, if, as a result

of that offense, death resulted. An upward departure also would be warranted,

for example, in a case involving animal enterprise terrorism under 18 U.S.C.

§ 43, if, in the course of the offense, serious bodily injury or death resulted, or

substantial scientific research or information were destroyed. Similarly, an

upward departure would be warranted in a case involving conduct described in

18 U.S.C. § 670 if the offense resulted in serious bodily injury or death,

including serious bodily injury or death resulting from the use of the pre-retail

medical product.

(iii) The offense involved a substantial amount of interest of any kind, finance

charges, late fees, penalties, amounts based on an agreed-upon return or rate of

return, or other similar costs, not included in the determination of loss for

purposes of subsection (b)(1).

(iv) The offense created a risk of substantial loss beyond the loss determined for

purposes of subsection (b)(1), such as a risk of a significant disruption of a

national financial market.

(v) In a case involving stolen information from a “protected computer”, as defined

in 18 U.S.C. § 1030(e)(2), the defendant sought the stolen information to further

a broader criminal purpose.

(vi) In a case involving access devices or unlawfully produced or unlawfully

obtained means of identification:

(I) The offense caused substantial harm to the victim’s reputation or credit

record, or the victim suffered a substantial inconvenience related to

repairing the victim’s reputation or a damaged credit record.

(II) An individual whose means of identification the defendant used to obtain

unlawful means of identification is erroneously arrested or denied a job

because an arrest record has been made in that individual’s name.

(III) The defendant produced or obtained numerous means of identification

with respect to one individual and essentially assumed that individual’s

identity.

* * *

4. HYDROCODONE

Reason for Amendment: This amendment changes the way the primary drug trafficking guideline

calculates a defendant’s drug quantity in cases involving hydrocodone in response to recent

administrative actions by the Food and Drug Administration and the Drug Enforcement Administration.

The amendment adopts a marihuana equivalency for hydrocodone (1 gram equals 6700 grams of

marihuana) based on the weight of the hydrocodone alone.

In 2013 and 2014, the Food and Drug Administration approved several new pharmaceuticals containing

hydrocodone which can contain up to twelve times as much hydrocodone in a single pill than was

previously available. Separately, in October 2014, the Drug Enforcement Administration moved certain

commonly-prescribed pharmaceuticals containing hydrocodone from the less-restricted Schedule III to

the more-restricted Schedule II. Among other things, the scheduling doubled the statutory maximum

term of imprisonment available for trafficking in the pharmaceuticals that were previously controlled

under Schedule III from 10 years to 20 years. The change also rendered obsolete the entries in the Drug

Quantity Table and Drug Equivalency Table in §2D1.1 (Unlawful Manufacturing, Importing, Exporting,

or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) that

set a marihuana equivalency for the pharmaceuticals that were previously controlled under Schedule III.

As a result of these administrative actions, all pharmaceuticals that include hydrocodone are now

subject to the same statutory penalties. There is wide variation in the amount of hydrocodone available

in these pharmaceuticals and in the amount of other ingredients (such as binders, coloring,

acetaminophen, etc.) they contain. This variation raises significant proportionality issues within §2D1.1,

where drug quantity for hydrocodone offenses has previously been calculated based on the weight of the

entire substance that contains hydrocodone or on the number of pills. Neither of these calculations

directly took into account the amount of actual hydrocodone in the pills.

The amendment addresses these changed circumstances by setting a new marihuana equivalency for

hydrocodone based on the weight of the hydrocodone alone. Without this change, defendants with less

actual hydrocodone could have received a higher guideline range than those with more hydrocodone

because pills with less hydrocodone can sometimes contain more non-hydrocodone ingredients, leading

the lower-dose pills to weigh more.

In setting the marihuana equivalency, the Commission considered: potency of the drug, medical use of

the drug, and patterns of abuse and trafficking, such as prevalence of abuse, consequences of misuse

including death or serious bodily injury from use, and incidence of violence associated with its

trafficking. The Commission noted that the Drug Enforcement Administration’s rescheduling decision

relied in part on the close relationship between hydrocodone and oxycodone, a similar and commonly-

prescribed drug that was already controlled under Schedule II. Scientific literature, public comment,

and testimony supported the conclusion that the potency, medical use, and patterns of abuse and

trafficking of hydrocodone are very similar to oxycodone. In particular, the Commission heard

testimony from abuse liability specialists and reviewed scientific literature indicating that, in studies

conducted under standards established by the Food and Drug Administration for determining the abuse

liability of a particular drug, the potencies of hydrocodone and oxycodone when abused are virtually

identical, even though some physicians who prescribe the two drugs in a clinical setting might not

prescribe them in equal doses. Public comment indicated that both hydrocodone and oxycodone are

among the top ten drugs most frequently encountered by law enforcement and that their methods of

diversion and rates of diversion per kilogram of available drug are similar. Public comment and review

of the scientific literature also indicated that the users of the two drugs share similar characteristics, and

that some users may use them interchangeably, a situation which may become more common as the more

powerful pharmaceuticals recently approved by the Food and Drug Administration become available.

Based on proportionality considerations and the Commission’s assessment that, for purposes of the drug

guideline, hydrocodone and oxycodone should be treated equivalently, the amendment adopts a

marihuana equivalency for hydrocodone (actual) that is the same as the existing equivalency for

oxycodone (actual): 1 gram equals 6,700 grams of marihuana.

Amendment:

§2D1.1. Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including

Possession with Intent to Commit These Offenses); Attempt or Conspiracy

* * *

Controlled Substances and Quantity* Base Offense Level

* * *

(5) M At least 1 KG but less than 3 KG of Heroin; Level 30

M At least 5 KG but less than 15 KG of Cocaine;

M At least 280 G but less than 840 G of Cocaine Base;

M At least 1 KG but less than 3 KG of PCP, or

at least 100 G but less than 300 G of PCP (actual);

M At least 500 G but less than 1.5 KG of Methamphetamine, or

at least 50 G but less than 150 G of Methamphetamine (actual), or

at least 50 G but less than 150 G of “Ice”;

M At least 500 G but less than 1.5 KG of Amphetamine, or

at least 50 G but less than 150 G of Amphetamine (actual);

M At least 10 G but less than 30 G of LSD;

M At least 400 G but less than 1.2 KG of Fentanyl;

M At least 100 G but less than 300 G of a Fentanyl Analogue;

M At least 1,000 KG but less than 3,000 KG of Marihuana;

M At least 200 KG but less than 600 KG of Hashish;

M At least 20 KG but less than 60 KG of Hashish Oil;

M At least 1,000,000 but less than 3,000,000 units of Ketamine;

M At least 1,000,000 but less than 3,000,000 units of Schedule I or II Depressants;

M 1,000,000 units or more of Schedule III Hydrocodone;

M At least 62,500 but less than 187,500 units of Flunitrazepam.

(6) M At least 700 G but less than 1 KG of Heroin; Level 28

M At least 3.5 KG but less than 5 KG of Cocaine;

M At least 196 G but less than 280 G of Cocaine Base;

M At least 700 G but less than 1 KG of PCP, or

at least 70 G but less than 100 G of PCP (actual);

M At least 350 G but less than 500 G of Methamphetamine, or

at least 35 G but less than 50 G of Methamphetamine (actual), or

at least 35 G but less than 50 G of “Ice”;

M At least 350 G but less than 500 G of Amphetamine, or

at least 35 G but less than 50 G of Amphetamine (actual);

M At least 7 G but less than 10 G of LSD;

M At least 280 G but less than 400 G of Fentanyl;

M At least 70 G but less than 100 G of a Fentanyl Analogue;

M At least 700 KG but less than 1,000 KG of Marihuana;

M At least 140 KG but less than 200 KG of Hashish;

M At least 14 KG but less than 20 KG of Hashish Oil;

M At least 700,000 but less than 1,000,000 units of Ketamine;

M At least 700,000 but less than 1,000,000 units of Schedule I or II Depressants;

M At least 700,000 but less than 1,000,000 units of Schedule III Hydrocodone;

M At least 43,750 but less than 62,500 units of Flunitrazepam.

(7) M At least 400 G but less than 700 G of Heroin; Level 26

M At least 2 KG but less than 3.5 KG of Cocaine;

M At least 112 G but less than 196 G of Cocaine Base;

M At least 400 G but less than 700 G of PCP, or

at least 40 G but less than 70 G of PCP (actual);

M At least 200 G but less than 350 G of Methamphetamine, or

at least 20 G but less than 35 G of Methamphetamine (actual), or

at least 20 G but less than 35 G of “Ice”;

M At least 200 G but less than 350 G of Amphetamine, or

at least 20 G but less than 35 G of Amphetamine (actual);

M At least 4 G but less than 7 G of LSD;

M At least 160 G but less than 280 G of Fentanyl;

M At least 40 G but less than 70 G of a Fentanyl Analogue;

M At least 400 KG but less than 700 KG of Marihuana;

M At least 80 KG but less than 140 KG of Hashish;

M At least 8 KG but less than 14 KG of Hashish Oil;

M At least 400,000 but less than 700,000 units of Ketamine;

M At least 400,000 but less than 700,000 units of Schedule I or II Depressants;

M At least 400,000 but less than 700,000 units of Schedule III Hydrocodone;

M At least 25,000 but less than 43,750 units of Flunitrazepam.

(8) M At least 100 G but less than 400 G of Heroin; Level 24

M At least 500 G but less than 2 KG of Cocaine;

M At least 28 G but less than 112 G of Cocaine Base;

M At least 100 G but less than 400 G of PCP, or

at least 10 G but less than 40 G of PCP (actual);

M At least 50 G but less than 200 G of Methamphetamine, or

at least 5 G but less than 20 G of Methamphetamine (actual), or

at least 5 G but less than 20 G of “Ice”;

M At least 50 G but less than 200 G of Amphetamine, or

at least 5 G but less than 20 G of Amphetamine (actual);

M At least 1 G but less than 4 G of LSD;

M At least 40 G but less than 160 G of Fentanyl;

M At least 10 G but less than 40 G of a Fentanyl Analogue;

M At least 100 KG but less than 400 KG of Marihuana;

M At least 20 KG but less than 80 KG of Hashish;

M At least 2 KG but less than 8 KG of Hashish Oil;

M At least 100,000 but less than 400,000 units of Ketamine;

M At least 100,000 but less than 400,000 units of Schedule I or II Depressants;

M At least 100,000 but less than 400,000 units of Schedule III Hydrocodone;

M At least 6,250 but less than 25,000 units of Flunitrazepam.

(9) M At least 80 G but less than 100 G of Heroin; Level 22

M At least 400 G but less than 500 G of Cocaine;

M At least 22.4 G but less than 28 G of Cocaine Base;

M At least 80 G but less than 100 G of PCP, or

at least 8 G but less than 10 G of PCP (actual);

M At least 40 G but less than 50 G of Methamphetamine, or

at least 4 G but less than 5 G of Methamphetamine (actual), or

at least 4 G but less than 5 G of “Ice”;

M At least 40 G but less than 50 G of Amphetamine, or

at least 4 G but less than 5 G of Amphetamine (actual);

M At least 800 MG but less than 1 G of LSD;

M At least 32 G but less than 40 G of Fentanyl;

M At least 8 G but less than 10 G of a Fentanyl Analogue;

M At least 80 KG but less than 100 KG of Marihuana;

M At least 16 KG but less than 20 KG of Hashish;

M At least 1.6 KG but less than 2 KG of Hashish Oil;

M At least 80,000 but less than 100,000 units of Ketamine;

M At least 80,000 but less than 100,000 units of Schedule I or II Depressants;

M At least 80,000 but less than 100,000 units of Schedule III Hydrocodone;

M At least 5,000 but less than 6,250 units of Flunitrazepam.

(10) M At least 60 G but less than 80 G of Heroin; Level 20

M At least 300 G but less than 400 G of Cocaine;

M At least 16.8 G but less than 22.4 G of Cocaine Base;

M At least 60 G but less than 80 G of PCP, or

at least 6 G but less than 8 G of PCP (actual);

M At least 30 G but less than 40 G of Methamphetamine, or

at least 3 G but less than 4 G of Methamphetamine (actual), or

at least 3 G but less than 4 G of “Ice”;

M At least 30 G but less than 40 G of Amphetamine, or

at least 3 G but less than 4 G of Amphetamine (actual);

M At least 600 MG but less than 800 MG of LSD;

M At least 24 G but less than 32 G of Fentanyl;

M At least 6 G but less than 8 G of a Fentanyl Analogue;

M At least 60 KG but less than 80 KG of Marihuana;

M At least 12 KG but less than 16 KG of Hashish;

M At least 1.2 KG but less than 1.6 KG of Hashish Oil;

M At least 60,000 but less than 80,000 units of Ketamine;

M At least 60,000 but less than 80,000 units of Schedule I or II Depressants;

M At least 60,000 but less than 80,000 units of Schedule III Hydrocodone;

M 60,000 units or more of Schedule III substances (except Ketamine

or Hydrocodone);

M At least 3,750 but less than 5,000 units of Flunitrazepam.

(11) M At least 40 G but less than 60 G of Heroin; Level 18

M At least 200 G but less than 300 G of Cocaine;

M At least 11.2 G but less than 16.8 G of Cocaine Base;

M At least 40 G but less than 60 G of PCP, or

at least 4 G but less than 6 G of PCP (actual);

M At least 20 G but less than 30 G of Methamphetamine, or

at least 2 G but less than 3 G of Methamphetamine (actual), or

at least 2 G but less than 3 G of “Ice”;

M At least 20 G but less than 30 G of Amphetamine, or

at least 2 G but less than 3 G of Amphetamine (actual);

M At least 400 MG but less than 600 MG of LSD;

M At least 16 G but less than 24 G of Fentanyl;

M At least 4 G but less than 6 G of a Fentanyl Analogue;

M At least 40 KG but less than 60 KG of Marihuana;

M At least 8 KG but less than 12 KG of Hashish;

M At least 800 G but less than 1.2 KG of Hashish Oil;

M At least 40,000 but less than 60,000 units of Ketamine;

M At least 40,000 but less than 60,000 units of Schedule I or II Depressants;

M At least 40,000 but less than 60,000 units of Schedule III Hydrocodone;

M At least 40,000 but less than 60,000 units of Schedule III substances (except

Ketamine or Hydrocodone);

M At least 2,500 but less than 3,750 units of Flunitrazepam.

(12) M At least 20 G but less than 40 G of Heroin; Level 16

M At least 100 G but less than 200 G of Cocaine;

M At least 5.6 G but less than 11.2 G of Cocaine Base;

M At least 20 G but less than 40 G of PCP, or

at least 2 G but less than 4 G of PCP (actual);

M At least 10 G but less than 20 G of Methamphetamine, or

at least 1 G but less than 2 G of Methamphetamine (actual), or

at least 1 G but less than 2 G of “Ice”;

M At least 10 G but less than 20 G of Amphetamine, or

at least 1 G but less than 2 G of Amphetamine (actual);

M At least 200 MG but less than 400 MG of LSD;

M At least 8 G but less than 16 G of Fentanyl;

M At least 2 G but less than 4 G of a Fentanyl Analogue;

M At least 20 KG but less than 40 KG of Marihuana;

M At least 5 KG but less than 8 KG of Hashish;

M At least 500 G but less than 800 G of Hashish Oil;

M At least 20,000 but less than 40,000 units of Ketamine;

M At least 20,000 but less than 40,000 units of Schedule I or II Depressants;

M At least 20,000 but less than 40,000 units of Schedule III Hydrocodone;

M At least 20,000 but less than 40,000 units of Schedule III substances (except

Ketamine or Hydrocodone);

M At least 1,250 but less than 2,500 units of Flunitrazepam.

(13) M At least 10 G but less than 20 G of Heroin; Level 14

M At least 50 G but less than 100 G of Cocaine;

M At least 2.8 G but less than 5.6 G of Cocaine Base;

M At least 10 G but less than 20 G of PCP, or

at least 1 G but less than 2 G of PCP (actual);

M At least 5 G but less than 10 G of Methamphetamine, or

at least 500 MG but less than 1 G of Methamphetamine (actual), or

at least 500 MG but less than 1 G of “Ice”;

M At least 5 G but less than 10 G of Amphetamine, or

at least 500 MG but less than 1 G of Amphetamine (actual);

M At least 100 MG but less than 200 MG of LSD;

M At least 4 G but less than 8 G of Fentanyl;

M At least 1 G but less than 2 G of a Fentanyl Analogue;

M At least 10 KG but less than 20 KG of Marihuana;

M At least 2 KG but less than 5 KG of Hashish;

M At least 200 G but less than 500 G of Hashish Oil;

M At least 10,000 but less than 20,000 units of Ketamine;

M At least 10,000 but less than 20,000 units of Schedule I or II Depressants;

M At least 10,000 but less than 20,000 units of Schedule III Hydrocodone;

M At least 10,000 but less than 20,000 units of Schedule III substances (except

Ketamine or Hydrocodone);

M At least 625 but less than 1,250 units of Flunitrazepam.

(14) M Less than 10 G of Heroin; Level 12

M Less than 50 G of Cocaine;

M Less than 2.8 G of Cocaine Base;

M Less than 10 G of PCP, or

less than 1 G of PCP (actual);

M Less than 5 G of Methamphetamine, or

less than 500 MG of Methamphetamine (actual), or

less than 500 MG of “Ice”;

M Less than 5 G of Amphetamine, or

less than 500 MG of Amphetamine (actual);

M Less than 100 MG of LSD;

M Less than 4 G of Fentanyl;

M Less than 1 G of a Fentanyl Analogue;

M At least 5 KG but less than 10 KG of Marihuana;

M At least 1 KG but less than 2 KG of Hashish;

M At least 100 G but less than 200 G of Hashish Oil;

M At least 5,000 but less than 10,000 units of Ketamine;

M At least 5,000 but less than 10,000 units of Schedule I or II Depressants;

M At least 5,000 but less than 10,000 units of Schedule III Hydrocodone;

M At least 5,000 but less than 10,000 units of Schedule III substances (except

Ketamine or Hydrocodone);

M At least 312 but less than 625 units of Flunitrazepam;

M 80,000 units or more of Schedule IV substances (except Flunitrazepam).

(15) M At least 2.5 KG but less than 5 KG of Marihuana; Level 10

M At least 500 G but less than 1 KG of Hashish;

M At least 50 G but less than 100 G of Hashish Oil;

M At least 2,500 but less than 5,000 units of Ketamine;

M At least 2,500 but less than 5,000 units of Schedule I or II Depressants;

M At least 2,500 but less than 5,000 units of Schedule III Hydrocodone;

M At least 2,500 but less than 5,000 units of Schedule III substances (except

Ketamine or Hydrocodone);

M At least 156 but less than 312 units of Flunitrazepam;

M At least 40,000 but less than 80,000 units of Schedule IV substances (except

Flunitrazepam).

(16) M At least 1 KG but less than 2.5 KG of Marihuana; Level 8

M At least 200 G but less than 500 G of Hashish;

M At least 20 G but less than 50 G of Hashish Oil;

M At least 1,000 but less than 2,500 units of Ketamine;

M At least 1,000 but less than 2,500 units of Schedule I or II Depressants;

M At least 1,000 but less than 2,500 units of Schedule III Hydrocodone;

M At least 1,000 but less than 2,500 units of Schedule III substances (except

Ketamine or Hydrocodone);

M Less than 156 units of Flunitrazepam;

M At least 16,000 but less than 40,000 units of Schedule IV substances (except

Flunitrazepam);

M 160,000 units or more of Schedule V substances.

(17) M Less than 1 KG of Marihuana; Level 6

M Less than 200 G of Hashish;

M Less than 20 G of Hashish Oil;

M Less than 1,000 units of Ketamine;

M Less than 1,000 units of Schedule I or II Depressants;

M Less than 1,000 units of Schedule III Hydrocodone;

M Less than 1,000 units of Schedule III substances (except

Ketamine or Hydrocodone);

M Less than 16,000 units of Schedule IV substances (except

Flunitrazepam);

M Less than 160,000 units of Schedule V substances.

*Notes to Drug Quantity Table:

(A) Unless otherwise specified, the weight of a controlled substance set forth in the table refers to the

entire weight of any mixture or substance containing a detectable amount of the controlled

substance. If a mixture or substance contains more than one controlled substance, the weight of

the entire mixture or substance is assigned to the controlled substance that results in the greater

offense level.

(B) The terms “PCP (actual)”, “Amphetamine (actual)”, and “Methamphetamine (actual)” refer to

the weight of the controlled substance, itself, contained in the mixture or substance. For

example, a mixture weighing 10 grams containing PCP at 50% purity contains 5 grams of PCP

(actual). In the case of a mixture or substance containing PCP, amphetamine, or

methamphetamine, use the offense level determined by the entire weight of the mixture or

substance, or the offense level determined by the weight of the PCP (actual), amphetamine

(actual), or methamphetamine (actual), whichever is greater.

The termterms “Hydrocodone (actual)” and “Oxycodone (actual)” refersrefer to the weight of the

controlled substance, itself, contained in the pill, capsule, or mixture.

d-methamphetamine hydrochloride of at least 80% purity.

(D) “Cocaine base,” for the purposes of this guideline, means “crack.” “Crack” is the street name for

a form of cocaine base, usually prepared by processing cocaine hydrochloride and sodium

bicarbonate, and usually appearing in a lumpy, rocklike form.

(E) In the case of an offense involving marihuana plants, treat each plant, regardless of sex, as

equivalent to 100 grams of marihuana. Provided, however, that if the actual weight of the

marihuana is greater, use the actual weight of the marihuana.

(F) In the case of Schedule I or II Depressants (except gamma-hydroxybutyric acid), Schedule III

substances, Schedule IV substances, and Schedule V substances, one “unit” means one pill,

capsule, or tablet. If the substance (except gamma-hydroxybutyric acid) is in liquid form, one

“unit” means 0.5 milliliters. For an anabolic steroid that is not in a pill, capsule, tablet, or liquid

form (e.g., patch, topical cream, aerosol), the court shall determine the base offense level using a

reasonable estimate of the quantity of anabolic steroid involved in the offense. In making a

reasonable estimate, the court shall consider that each 25 milligrams of an anabolic steroid is one

“unit”.

* * *

Commentary

Statutory Provisions: 21 U.S.C. §§ 841(a), (b)(1)-(3), (7), (g), 860a, 865, 960(a), (b); 49 U.S.C.

§ 46317(b). For additional statutory provision(s), see Appendix A (Statutory Index).

Application Notes:

* * *

7. Multiple Transactions or Multiple Drug Types.—Where there are multiple transactions or

multiple drug types, the quantities of drugs are to be added. Tables for making the necessary

conversions are provided below.

8. Use of Drug Equivalency Tables.—

* * *

(D) Drug Equivalency Tables.—

Schedule I or II Opiates*

1 gm of Heroin = 1 kg of marihuana

1 gm of Alpha-Methylfentanyl = 10 kg of marihuana

1 gm of Dextromoramide = 670 gm of marihuana

1 gm of Dipipanone = 250 gm of marihuana

1 gm of 3-Methylfentanyl = 10 kg of marihuana

1 gm of 1-Methyl-4-phenyl-4-propionoxypiperidine/MPPP = 700 gm of marihuana

1 gm of 1-(2-Phenylethyl)-4-phenyl-4-acetyloxypiperidine/

PEPAP = 700 gm of marihuana

1 gm of Alphaprodine = 100 gm of marihuana

1 gm of Fentanyl (N-phenyl-N-[1-(2-phenylethyl)-4-

piperidinyl] Propanamide) = 2.5 kg of marihuana

1 gm of Hydromorphone/Dihydromorphinone = 2.5 kg of marihuana

1 gm of Levorphanol = 2.5 kg of marihuana

1 gm of Meperidine/Pethidine = 50 gm of marihuana

1 gm of Methadone = 500 gm of marihuana

1 gm of 6-Monoacetylmorphine = 1 kg of marihuana

1 gm of Morphine = 500 gm of marihuana

1 gm of Oxycodone (actual) = 6700 gm of marihuana

1 gm of Oxymorphone = 5 kg of marihuana

1 gm of Racemorphan = 800 gm of marihuana

1 gm of Codeine = 80 gm of marihuana

1 gm of Dextropropoxyphene/Propoxyphene-Bulk = 50 gm of marihuana

1 gm of Ethylmorphine = 165 gm of marihuana

1 gm of Hydrocodone/Dihydrocodeinone = 500 gm of marihuana

1 gm of Hydrocodone (actual) = 6700 gm of marihuana

1 gm of Mixed Alkaloids of Opium/Papaveretum = 250 gm of marihuana

1 gm of Opium = 50 gm of marihuana

1 gm of Levo-alpha-acetylmethadol (LAAM) = 3 kg of marihuana

*Provided, that the minimum offense level from the Drug Quantity Table for any of these controlled

substances individually, or in combination with another controlled substance, is level 12.

* * *

Schedule III Substances (except ketamine and hydrocodone)***

1 unit of a Schedule III Substance = 1 gm of marihuana

***Provided, that the combined equivalent weight of all Schedule III substances (except ketamine and

hydrocodone), Schedule IV substances (except flunitrazepam), and Schedule V substances shall not exceed

79.99 kilograms of marihuana.

Schedule III Hydrocodone****

1 unit of Schedule III hydrocodone = 1 gm of marihuana

****Provided, that the combined equivalent weight of all Schedule III substances (except ketamine),

Schedule IV substances (except flunitrazepam), and Schedule V substances shall not exceed 2,999.99

kilograms of marihuana.

* * *

27. Departure Considerations.—

(A) Downward Departure Based on Drug Quantity in Certain Reverse Sting Operations.—If,

in a reverse sting (an operation in which a government agent sells or negotiates to sell a

controlled substance to a defendant), the court finds that the government agent set a

price for the controlled substance that was substantially below the market value of the

controlled substance, thereby leading to the defendant’s purchase of a significantly

greater quantity of the controlled substance than his available resources would have

allowed him to purchase except for the artificially low price set by the government agent,

a downward departure may be warranted.

(B) Upward Departure Based on Drug Quantity.—In an extraordinary case, an upward

departure above offense level 38 on the basis of drug quantity may be warranted. For

example, an upward departure may be warranted where the quantity is at least ten times

the minimum quantity required for level 38. Similarly, in the case of a controlled

substance for which the maximum offense level is less than level 38, an upward

departure may be warranted if the drug quantity substantially exceeds the quantity for

the highest offense level established for that particular controlled substance.

substances, compounds, or mixtures of unusually high purity may warrant an upward

departure, except in the case of PCP, amphetamine, methamphetamine, hydrocodone, or

oxycodone for which the guideline itself provides for the consideration of purity (see the

footnote to the Drug Quantity Table). The purity of the controlled substance,

particularly in the case of heroin, may be relevant in the sentencing process because it is

probative of the defendant’s role or position in the chain of distribution. Since

controlled substances are often diluted and combined with other substances as they pass

down the chain of distribution, the fact that a defendant is in possession of unusually

pure narcotics may indicate a prominent role in the criminal enterprise and proximity to

the source of the drugs. As large quantities are normally associated with high purities,

this factor is particularly relevant where smaller quantities are involved.

* * *

5. MITIGATING ROLE

Reason for Amendment: This amendment is a result of the Commission’s study of §3B1.2 (Mitigating

Role). The Commission conducted a review of cases involving low-level offenders, analyzed case law,

and considered public comment and testimony. Overall, the study found that mitigating role is applied

inconsistently and more sparingly than the Commission intended. In drug cases, the Commission’s study

confirmed that mitigating role is applied inconsistently to drug defendants who performed similar low-

level functions (and that rates of application vary widely from district to district). For example,

application of mitigating role varies along the southwest border, with a low of 14.3 percent of couriers

and mules receiving the mitigating role adjustment in one district compared to a high of 97.2 percent in

another. Moreover, among drug defendants who do receive mitigating role, there are differences from

district to district in application rates of the 2-, 3-, and 4-level adjustments. In economic crime cases,

the study found that the adjustment was often applied in a limited fashion. For example, the study found

that courts often deny mitigating role to otherwise eligible defendants if the defendant was considered

“integral” to the successful commission of the offense.

This amendment provides additional guidance to sentencing courts in determining whether a mitigating

role adjustment applies. Specifically, it addresses a circuit conflict and other case law that may be

discouraging courts from applying the adjustment in otherwise appropriate circumstances. It also

provides a non-exhaustive list of factors for the court to consider in determining whether an adjustment

applies and, if so, the amount of the adjustment.

Section 3B1.2 provides an adjustment of 2, 3, or 4 levels for a defendant who plays a part in committing

the offense that makes him or her “substantially less culpable than the average participant.” However,

there are differences among the circuits about what determining the “average participant” requires. The

Seventh and Ninth Circuits have concluded that the “average participant” means only those persons who

actually participated in the criminal activity at issue in the defendant’s case, so that the defendant’s

relative culpability is determined only by reference to his or her co-participants in the case at hand. See,

e.g., United States v. Benitez, 34 F.3d 1489, 1498 (9th Cir. 1994); United States v. Cantrell, 433 F.3d

1269, 1283 (9th Cir. 2006); United States v. DePriest, 6 F.3d 1201, 1214 (7th Cir. 1993). The First and

Second Circuits have concluded that the “average participant” also includes “the universe of persons

participating in similar crimes.” See United States v. Santos, 357 F.3d 136, 142 (1st Cir. 2004); see also

United States v. Rahman, 189 F.3d 88, 159 (2d Cir. 1999). Under this latter approach, courts will

ordinarily consider the defendant’s culpability relative both to his co-participants and to the typical

offender.

The amendment generally adopts the approach of the Seventh and Ninth Circuits, revising the

commentary to specify that, when determining mitigating role, the defendant is to be compared with the

other participants “in the criminal activity.” Focusing the court’s attention on the individual defendant

and the other participants is more consistent with the other provisions of Chapter Three, Part B. See,

e.g., §3B1.2 (the adjustment is based on “the defendant’s role in the offense”); §3B1.2, comment.

(n.3(C)) (a determination about mitigating role “is heavily dependent upon the facts of the particular

case”); Ch. 3, Pt. B, intro. comment. (the determination about mitigating role “is to be made on the basis

of all conduct within the scope of §1B1.3 (Relevant Conduct)”).

Next, the amendment addresses cases in which the defendant was “integral” or “indispensable” to the

commission of the offense. Public comment suggested, and a review of case law confirmed, that in some

cases a defendant may be denied a mitigating role adjustment solely because he or she was “integral” or

“indispensable” to the commission of the offense. See, e.g., United States v. Skinner, 690 F.3d 772,

783-84 (6th Cir. 2012) (a “defendant who plays a lesser role in a criminal scheme may nonetheless fail

to qualify as a minor participant if his role was indispensable or critical to the success of the scheme”);

United States v. Panaigua-Verdugo, 537 F.3d 722, 725 (7th Cir. 2008) (defendant “played an integral

part in the transactions and therefore did not deserve a minor participant reduction”); United States v.

Deans, 590 F.3d 907, 910 (8th Cir. 2010) (“Numerous decisions have upheld the denial of minor role

adjustments to defendants who . . . play a critical role”); United States v. Carter, 971 F.2d 597, 600

(10th Cir. 1992) (because defendant was “indispensable to the completion of the criminal activity . . . to

debate which one is less culpable than the others . . . is akin to the old argument over which leg of a

three-legged stool is the most important leg.”). However, a finding that the defendant was essential to

the offense does not alter the requirement, expressed in Note 3(A), that the court must assess the

defendant’s culpability relative to the average participant in the offense. Accordingly, the amendment

revises the commentary to emphasize that “the fact that a defendant performs an essential or

indispensable role in the criminal activity is not determinative” and that such a defendant may receive a

mitigating role adjustment, if he or she is otherwise eligible.

The amendment also revises two paragraphs in Note 3(A) that illustrate how mitigating role interacts

with relevant conduct principles in §1B1.3. Specifically, the illustrations provide that certain types of

defendants are “not precluded from consideration for” a mitigating role adjustment. The amendment

revises these paragraphs to state that these types of defendants “may receive” a mitigating role

adjustment. The Commission determined that the double-negative tone (“not precluded”) may have had

the unintended effect of discouraging courts from applying the mitigating role adjustment in otherwise

appropriate circumstances.

Finally, the amendment provides a non-exhaustive list of factors for the court to consider in determining

whether to apply a mitigating role adjustment and, if so, the amount of the adjustment. The factors direct

the court to consider the degree to which the defendant understood the scope and structure of the

criminal activity, participated in planning or organizing the criminal activity, and exercised decision-

making authority, as well as the acts the defendant performed and the degree to which he or she stood to

benefit from the criminal activity. The Commission was persuaded by public comment and a detailed

review of cases involving low-level offenders, particularly in fraud cases, that providing a list of factors

will give the courts a common framework for determining whether to apply a mitigating role adjustment

(and, if so, the amount of the adjustment) and will help promote consistency.

The amendment further provides, as an example, that a defendant who does not have a proprietary

interest in the criminal activity and who is simply being paid to perform certain tasks should be

considered for a mitigating role adjustment.

Amendment:

§3B1.2. Mitigating Role

Based on the defendant’s role in the offense, decrease the offense level as follows:

(a) If the defendant was a minimal participant in any criminal activity, decrease by 4

levels.

(b) If the defendant was a minor participant in any criminal activity, decrease by

2 levels.

In cases falling between (a) and (b), decrease by 3 levels.

Commentary

Application Notes:

1. Definition.—For purposes of this guideline, “participant” has the meaning given that term in

Application Note 1 of §3B1.1 (Aggravating Role).

2. Requirement of Multiple Participants.—This guideline is not applicable unless more than one

participant was involved in the offense. See the Introductory Commentary to this Part (Role in

the Offense). Accordingly, an adjustment under this guideline may not apply to a defendant who

is the only defendant convicted of an offense unless that offense involved other participants in

addition to the defendant and the defendant otherwise qualifies for such an adjustment.

3. Applicability of Adjustment.—

(A) Substantially Less Culpable than Average Participant.—This section provides a range of

adjustments for a defendant who plays a part in committing the offense that makes him

substantially less culpable than the average participant in the criminal activity.

A defendant who is accountable under §1B1.3 (Relevant Conduct) only for the conduct

in which the defendant personally was involved and who performs a limited function in

the concerted criminal activity is not precluded from consideration for may receive an

adjustment under this guideline. For example, a defendant who is convicted of a drug

trafficking offense, whose roleparticipation in that offense was limited to transporting or

storing drugs and who is accountable under §1B1.3 only for the quantity of drugs the

defendant personally transported or stored is not precluded from consideration for may

receive an adjustment under this guideline.

Likewise, a defendant who is accountable under §1B1.3 for a loss amount under §2B1.1

(Theft, Property Destruction, and Fraud) that greatly exceeds the defendant’s personal

gain from a fraud offense andor who had limited knowledge of the scope of the scheme is

not precluded from consideration for may receive an adjustment under this guideline.

For example, a defendant in a health care fraud scheme, whose roleparticipation in the

scheme was limited to serving as a nominee owner and who received little personal gain

relative to the loss amount, is not precluded from consideration for may receive an

adjustment under this guideline.

(B) Conviction of Significantly Less Serious Offense.—If a defendant has received a lower

offense level by virtue of being convicted of an offense significantly less serious than

warranted by his actual criminal conduct, a reduction for a mitigating role under this

section ordinarily is not warranted because such defendant is not substantially less

culpable than a defendant whose only conduct involved the less serious offense. For

example, if a defendant whose actual conduct involved a minimal role in the distribution

of 25 grams of cocaine (an offense having a Chapter Two offense level of level 12 under

§2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including

Possession with Intent to Commit These Offenses); Attempt or Conspiracy)) is convicted

of simple possession of cocaine (an offense having a Chapter Two offense level of level 6

under §2D2.1 (Unlawful Possession; Attempt or Conspiracy)), no reduction for a

mitigating role is warranted because the defendant is not substantially less culpable than

a defendant whose only conduct involved the simple possession of cocaine.

subsection (b), or an intermediate adjustment, is based on the totality of the

circumstances and involves a determination that is heavily dependent upon the facts of

the particular case.

In determining whether to apply subsection (a) or (b), or an intermediate adjustment, the

court should consider the following non-exhaustive list of factors:

(i) the degree to which the defendant understood the scope and structure of the

criminal activity;

(ii) the degree to which the defendant participated in planning or organizing the

criminal activity;

(iii) the degree to which the defendant exercised decision-making authority or

influenced the exercise of decision-making authority;

(iv) the nature and extent of the defendant’s participation in the commission of the

criminal activity, including the acts the defendant performed and the

responsibility and discretion the defendant had in performing those acts;

(v) the degree to which the defendant stood to benefit from the criminal activity.

For example, a defendant who does not have a proprietary interest in the criminal

activity and who is simply being paid to perform certain tasks should be considered for

an adjustment under this guideline.

The fact that a defendant performs an essential or indispensable role in the criminal

activity is not determinative. Such a defendant may receive an adjustment under this

guideline if he or she is substantially less culpable than the average participant in the

criminal activity.

4. Minimal Participant.—Subsection (a) applies to a defendant described in Application Note 3(A)

who plays a minimal role in the criminalconcerted activity. It is intended to cover defendants

who are plainly among the least culpable of those involved in the conduct of a group. Under this

provision, the defendant’s lack of knowledge or understanding of the scope and structure of the

enterprise and of the activities of others is indicative of a role as minimal participant.

5. Minor Participant.— Subsection (b) applies to a defendant described in Application Note 3(A)

who is less culpable than most other participants in the criminal activity, but whose role could

not be described as minimal.

6. Application of Role Adjustment in Certain Drug Cases.—In a case in which the court applied

§2D1.1 and the defendant’s base offense level under that guideline was reduced by operation of

the maximum base offense level in §2D1.1(a)(5), the court also shall apply the appropriate

adjustment under this guideline.

* * *

6. “SINGLE SENTENCE” RULE

Reason for Amendment: This amendment responds to a circuit conflict regarding the meaning of the

“single sentence” rule, set forth in subsection (a)(2) of §4A1.2 (Definitions and Instructions for

Computing Criminal History), and its implications for the career offender guideline and other guidelines

that provide sentencing enhancements for predicate offenses.

When the defendant’s criminal history includes two or more prior sentences that meet certain criteria

specified in §4A1.2(a)(2), those prior sentences are counted as a “single sentence” rather than

separately. Generally, this operates to reduce the cumulative impact of prior sentences in determining a

defendant’s criminal history score. Courts, however, are divided over whether this “single sentence”

rule also causes certain prior convictions that ordinarily would qualify as predicate offenses under the

career offender guideline to be disqualified from serving as predicate offenses. See §4B1.2 (Definitions

of Terms Used in Section 4B1.1), comment. (n.3).

In 2010, in King v. United States, the Eighth Circuit held that when two or more prior sentences are

treated as a single sentence under the guidelines, all the criminal history points attributable to the single

sentence are assigned to only one of the prior sentences — specifically, the one that was the longest.

King, 595 F.3d 844, 852 (8th Cir. 2010). Accordingly, only that prior sentence may be considered a

predicate offense for purposes of the career offender guideline. Id. at 849, 852.

In 2014, in United States v. Williams, a panel of the Sixth Circuit considered and rejected King, because

it permitted the defendant to “evade career offender status because he committed more crimes.”

Williams, 753 F.3d 626, 639 (6th Cir. 2014) (emphasis in original). See also United States v. Cornog,

945 F.2d 1504, 1506 n.3 (11th Cir. 1991) (“It would be illogical . . . to ignore a conviction for a violent

felony just because it happened to be coupled with a nonviolent felony conviction having a longer

sentence.”).

After the Williams decision, a different panel of the Eighth Circuit agreed with the Sixth Circuit’s

analysis but was not in a position to overrule the earlier panel’s decision in King. See Donnell v. United

States, 765 F.3d 817, 820 (8th Cir. 2014). The Eighth Circuit has applied the analysis from King to a

case involving the firearms guideline and to a case in which the prior sentences were consecutive rather

than concurrent. See, e.g., Pierce v. United States, 686 F.3d 529, 533 n.3 (8th Cir. 2012) (firearms);

United States v. Parker, 762 F.3d 801, 808 (8th Cir. 2014) (consecutive sentences). This issue has also

been addressed by other courts, some which have followed the Sixth Circuit’s approach in Williams. See,

e.g., United States v. Carr, 2013 WL 4855341 (N.D. Ga. 2013); United States v. Agurs, 2014 WL

3735584 (W.D. Pa., July 28, 2014). Other decisions have been consistent with the Eighth Circuit’s

approach in King. See, e.g., United States v. Santiago, 387 F. App’x 223 (3d Cir. 2010); United States v.

McQueen, 2014 WL 3749215 (E.D. Wash., July 28, 2014).

The amendment generally follows the Sixth Circuit’s approach in Williams. It amends the commentary

to §4A1.2 to provide that, for purposes of determining predicate offenses, a prior sentence included in a

single sentence should be treated as if it received criminal history points if it independently would have

received criminal history points. It also provides examples, including an example to illustrate the

potential impact of the applicable time periods prescribed in §4A1.2(e). Finally, §§4A1.1 (Criminal

History Category) and 4A1.2 are revised stylistically so that sentences “counted” as a single sentence

are referred to instead as sentences “treated” as a single sentence.

The amendment ensures that those defendants who have committed more crimes, in addition to a

predicate offense, remain subject to enhanced penalties under certain guidelines such as the career

offender guideline. Conversely, by clarifying how the single sentence rule interacts with the time limits

set forth in §4A1.2(e), the amendment provides that when a prior sentence was so remote in time that it

does not independently receive criminal history points, it cannot serve as a predicate offense.

Amendment:

§2L1.2. Unlawfully Entering or Remaining in the United States

(a) Base Offense Level: 8

(b) Specific Offense Characteristic

(1) Apply the Greatest:

If the defendant previously was deported, or unlawfully remained in the

United States, after—

* * *

(E) three or more convictions for misdemeanors that are crimes of

violence or drug trafficking offenses, increase by 4 levels.

Commentary

* * *

Application Notes:

* * *

4. Application of Subsection (b)(1)(E).—For purposes of subsection (b)(1)(E):

(A) “Misdemeanor” means any federal, state, or local offense punishable by a term of

imprisonment of one year or less.

(B) “Three or more convictions” means at least three convictions for offenses that are not

countedtreated as a single sentence pursuant to subsection (a)(2) of §4A1.2 (Definitions

and Instructions for Computing Criminal History).

* * *

§4A1.1. Criminal History Category

The total points from subsections (a) through (e) determine the criminal history category

in the Sentencing Table in Chapter Five, Part A.

(a) Add 3 points for each prior sentence of imprisonment exceeding one year and

one month.

(b) Add 2 points for each prior sentence of imprisonment of at least sixty days not

counted in (a).

4 points for this subsection.

(d) Add 2 points if the defendant committed the instant offense while under any

criminal justice sentence, including probation, parole, supervised release,

imprisonment, work release, or escape status.

(e) Add 1 point for each prior sentence resulting from a conviction of a crime of

violence that did not receive any points under (a), (b), or (c) above because such

sentence was countedtreated as a single sentence, up to a total of 3 points for this

subsection.

Commentary

The total criminal history points from §4A1.1 determine the criminal history category (I-VI) in

the Sentencing Table in Chapter Five, Part A. The definitions and instructions in §4A1.2 govern the

computation of the criminal history points. Therefore, §§4A1.1 and 4A1.2 must be read together. The

following notes highlight the interaction of §§4A1.1 and 4A1.2.

Application Notes:

* * *

5. §4A1.1(e). In a case in which the defendant received two or more prior sentences as a result of

convictions for crimes of violence that are countedtreated as a single sentence (see

§4A1.2(a)(2)), one point is added under §4A1.1(e) for each such sentence that did not result in

any additional points under §4A1.1(a), (b), or (c). A total of up to 3 points may be added under

§4A1.1(e). For purposes of this guideline, “crime of violence” has the meaning given that term

in §4B1.2(a). See §4A1.2(p).

For example, a defendant’s criminal history includes two robbery convictions for offenses

committed on different occasions. The sentences for these offenses were imposed on the same

day and are countedtreated as a single prior sentence. See §4A1.2(a)(2). If the defendant

received a five-year sentence of imprisonment for one robbery and a four-year sentence of

imprisonment for the other robbery (consecutively or concurrently), a total of 3 points is added

under §4A1.1(a). An additional point is added under §4A1.1(e) because the second sentence did

not result in any additional point(s) (under §4A1.1(a), (b), or (c)). In contrast, if the defendant

received a one-year sentence of imprisonment for one robbery and a nine-month consecutive

sentence of imprisonment for the other robbery, a total of 3 points also is added under §4A1.1(a)

(a one-year sentence of imprisonment and a consecutive nine-month sentence of imprisonment

are treated as a combined one-year-nine-month sentence of imprisonment). But no additional

point is added under §4A1.1(e) because the sentence for the second robbery already resulted in

an additional point under §4A1.1(a). Without the second sentence, the defendant would only

have received two points under §4A1.1(b) for the one-year sentence of imprisonment.

Background: Prior convictions may represent convictions in the federal system, fifty state systems, the

District of Columbia, territories, and foreign, tribal, and military courts. There are jurisdictional

variations in offense definitions, sentencing structures, and manner of sentence pronouncement. To

minimize problems with imperfect measures of past crime seriousness, criminal history categories are

based on the maximum term imposed in previous sentences rather than on other measures, such as

whether the conviction was designated a felony or misdemeanor. In recognition of the imperfection of

this measure however, §4A1.3 authorizes the court to depart from the otherwise applicable criminal

history category in certain circumstances.

Subsections (a), (b), and (c) of §4A1.1 distinguish confinement sentences longer than one year

and one month, shorter confinement sentences of at least sixty days, and all other sentences, such as

confinement sentences of less than sixty days, probation, fines, and residency in a halfway house.

Section 4A1.1(d) adds two points if the defendant was under a criminal justice sentence during

any part of the instant offense.

§4A1.2. Definitions and Instructions for Computing Criminal History

(a) Prior Sentence

(1) The term “prior sentence” means any sentence previously imposed upon

adjudication of guilt, whether by guilty plea, trial, or plea of nolo

contendere, for conduct not part of the instant offense.

(2) If the defendant has multiple prior sentences, determine whether those

sentences are counted separately or treated as a single sentence. Prior

sentences always are counted separately if the sentences were imposed

for offenses that were separated by an intervening arrest (i.e., the

defendant is arrested for the first offense prior to committing the second

offense). If there is no intervening arrest, prior sentences are counted

separately unless (A) the sentences resulted from offenses contained in

the same charging instrument; or (B) the sentences were imposed on the

same day. CountTreat any prior sentence covered by (A) or (B) as a

single sentence. See also §4A1.1(e).

For purposes of applying §4A1.1(a), (b), and (c), if prior sentences are

countedtreated as a single sentence, use the longest sentence of

imprisonment if concurrent sentences were imposed. If consecutive

sentences were imposed, use the aggregate sentence of imprisonment.

(3) A conviction for which the imposition or execution of sentence was

totally suspended or stayed shall be counted as a prior sentence under

§4A1.1(c).

(4) Where a defendant has been convicted of an offense, but not yet

sentenced, such conviction shall be counted as if it constituted a prior

sentence under §4A1.1(c) if a sentence resulting from that conviction

otherwise would be countable. In the case of a conviction for an offense

set forth in §4A1.2(c)(1), apply this provision only where the sentence

for such offense would be countable regardless of type or length.

“Convicted of an offense,” for the purposes of this provision, means that

the guilt of the defendant has been established, whether by guilty plea,

trial, or plea of nolo contendere.

(b) Sentence of Imprisonment Defined

(1) The term “sentence of imprisonment” means a sentence of incarceration

and refers to the maximum sentence imposed.

(2) If part of a sentence of imprisonment was suspended, “sentence of

imprisonment” refers only to the portion that was not suspended.

Sentences for all felony offenses are counted. Sentences for misdemeanor and

petty offenses are counted, except as follows:

(1) Sentences for the following prior offenses and offenses similar to them,

by whatever name they are known, are counted only if (A) the sentence

was a term of probation of more than one year or a term of imprisonment

of at least thirty days, or (B) the prior offense was similar to an instant

offense:

Careless or reckless driving

Contempt of court

Disorderly conduct or disturbing the peace

Driving without a license or with a revoked or suspended license

False information to a police officer

Gambling

Hindering or failure to obey a police officer

Insufficient funds check

Leaving the scene of an accident

Non-support

Prostitution

Resisting arrest

Trespassing.

(2) Sentences for the following prior offenses and offenses similar to them,

by whatever name they are known, are never counted:

Fish and game violations

Hitchhiking

Juvenile status offenses and truancy

Local ordinance violations (except those violations that are also

violations under state criminal law)

Loitering

Minor traffic infractions (e.g., speeding)

Public intoxication

Vagrancy.

(d) Offenses Committed Prior to Age Eighteen

(1) If the defendant was convicted as an adult and received a sentence of

imprisonment exceeding one year and one month, add 3 points under

§4A1.1(a) for each such sentence.

(2) In any other case,

(A) add 2 points under §4A1.1(b) for each adult or juvenile sentence

to confinement of at least sixty days if the defendant was

released from such confinement within five years of his

commencement of the instant offense;

(B) add 1 point under §4A1.1(c) for each adult or juvenile sentence

imposed within five years of the defendant’s commencement of

the instant offense not covered in (A).

(e) Applicable Time Period

(1) Any prior sentence of imprisonment exceeding one year and one month

that was imposed within fifteen years of the defendant’s commencement

of the instant offense is counted. Also count any prior sentence of

imprisonment exceeding one year and one month, whenever imposed,

that resulted in the defendant being incarcerated during any part of such

fifteen-year period.

(2) Any other prior sentence that was imposed within ten years of the

defendant’s commencement of the instant offense is counted.

(3) Any prior sentence not within the time periods specified above is not

counted.

(4) The applicable time period for certain sentences resulting from offenses

committed prior to age eighteen is governed by §4A1.2(d)(2).

(f) Diversionary Dispositions

Diversion from the judicial process without a finding of guilt (e.g., deferred

prosecution) is not counted. A diversionary disposition resulting from a finding

or admission of guilt, or a plea of nolo contendere, in a judicial proceeding is

counted as a sentence under §4A1.1(c) even if a conviction is not formally

entered, except that diversion from juvenile court is not counted.

(g) Military Sentences

Sentences resulting from military offenses are counted if imposed by a general or

special court-martial. Sentences imposed by a summary court-martial or Article

15 proceeding are not counted.

(h) Foreign Sentences

Sentences resulting from foreign convictions are not counted, but may be

considered under §4A1.3 (Adequacy of Criminal History Category).

(i) Tribal Court Sentences

Sentences resulting from tribal court convictions are not counted, but may be

considered under §4A1.3 (Adequacy of Criminal History Category).

(j) Expunged Convictions

Sentences for expunged convictions are not counted, but may be considered

under §4A1.3 (Adequacy of Criminal History Category).

(k) Revocations of Probation, Parole, Mandatory Release, or Supervised

Release

(1) In the case of a prior revocation of probation, parole, supervised release,

special parole, or mandatory release, add the original term of

imprisonment to any term of imprisonment imposed upon revocation.

The resulting total is used to compute the criminal history points for

§4A1.1(a), (b), or (c), as applicable.

(2) Revocation of probation, parole, supervised release, special parole, or

mandatory release may affect the time period under which certain

sentences are counted as provided in §4A1.2(d)(2) and (e). For the

purposes of determining the applicable time period, use the following:

(A) in the case of an adult term of imprisonment totaling more than one

year and one month, the date of last release from incarceration on such

sentence (see §4A1.2(e)(1)); (B) in the case of any other confinement

sentence for an offense committed prior to the defendant’s eighteenth

birthday, the date of the defendant’s last release from confinement on

such sentence (see §4A1.2(d)(2)(A)); and (C) in any other case, the date

of the original sentence (see §4A1.2(d)(2)(B) and (e)(2)).

(l) Sentences on Appeal

Prior sentences under appeal are counted except as expressly provided below. In

the case of a prior sentence, the execution of which has been stayed pending

appeal, §4A1.1(a), (b), (c), (d), and (e) shall apply as if the execution of such

sentence had not been stayed.

(m) Effect of a Violation Warrant

For the purposes of §4A1.1(d), a defendant who commits the instant offense

while a violation warrant from a prior sentence is outstanding (e.g., a probation,

parole, or supervised release violation warrant) shall be deemed to be under a

criminal justice sentence if that sentence is otherwise countable, even if that

sentence would have expired absent such warrant.

(n) Failure to Report for Service of Sentence of Imprisonment

For the purposes of §4A1.1(d), failure to report for service of a sentence of

imprisonment shall be treated as an escape from such sentence.

(o) Felony Offense

For the purposes of §4A1.2(c), a “felony offense” means any federal, state, or

local offense punishable by death or a term of imprisonment exceeding one year,

regardless of the actual sentence imposed.

(p) Crime of Violence Defined

For the purposes of §4A1.1(e), the definition of “crime of violence” is that set

forth in §4B1.2(a).

Commentary

Application Notes:

1. Prior Sentence.—“Prior sentence” means a sentence imposed prior to sentencing on the instant

offense, other than a sentence for conduct that is part of the instant offense. See §4A1.2(a). A

sentence imposed after the defendant’s commencement of the instant offense, but prior to

sentencing on the instant offense, is a prior sentence if it was for conduct other than conduct that

was part of the instant offense. Conduct that is part of the instant offense means conduct that is

relevant conduct to the instant offense under the provisions of §1B1.3 (Relevant Conduct).

Under §4A1.2(a)(4), a conviction for which the defendant has not yet been sentenced is treated

as if it were a prior sentence under §4A1.1(c) if a sentence resulting from such conviction

otherwise would have been counted. In the case of an offense set forth in §4A1.2(c)(1) (which

lists certain misdemeanor and petty offenses), a conviction for which the defendant has not yet

been sentenced is treated as if it were a prior sentence under §4A1.2(a)(4) only where the offense

is similar to the instant offense (because sentences for other offenses set forth in §4A1.2(c)(1) are

counted only if they are of a specified type and length).

2. Sentence of Imprisonment.—To qualify as a sentence of imprisonment, the defendant must have

actually served a period of imprisonment on such sentence (or, if the defendant escaped, would

have served time). See §4A1.2(a)(3) and (b)(2). For the purposes of applying §4A1.1(a), (b), or

(c), the length of a sentence of imprisonment is the stated maximum (e.g., in the case of a

determinate sentence of five years, the stated maximum is five years; in the case of an

indeterminate sentence of one to five years, the stated maximum is five years; in the case of an

indeterminate sentence for a term not to exceed five years, the stated maximum is five years; in

the case of an indeterminate sentence for a term not to exceed the defendant’s twenty-first

birthday, the stated maximum is the amount of time in pre-trial detention plus the amount of time

between the date of sentence and the defendant’s twenty-first birthday). That is, criminal history

points are based on the sentence pronounced, not the length of time actually served. See

§4A1.2(b)(1) and (2). A sentence of probation is to be treated as a sentence under §4A1.1(c)

unless a condition of probation requiring imprisonment of at least sixty days was imposed.

3. Application of “Single Sentence” Rule (Subsection (a)(2)).—

(A) Predicate Offenses.—In some cases, multiple prior sentences are treated as a single

sentence for purposes of calculating the criminal history score under §4A1.1(a), (b), and

(c). However, for purposes of determining predicate offenses, a prior sentence included

in the single sentence should be treated as if it received criminal history points, if it

independently would have received criminal history points. Therefore, an individual

prior sentence may serve as a predicate under the career offender guideline (see

§4B1.2(c)) or other guidelines with predicate offenses, if it independently would have

received criminal history points. However, because predicate offenses may be used only

if they are counted “separately” from each other (see §4B1.2(c)), no more than one

prior sentence in a given single sentence may be used as a predicate offense.

For example, a defendant’s criminal history includes one robbery conviction and one

theft conviction. The sentences for these offenses were imposed on the same day, eight

years ago, and are treated as a single sentence under §4A1.2(a)(2). If the defendant

received a one-year sentence of imprisonment for the robbery and a two-year sentence of

imprisonment for the theft, to be served concurrently, a total of 3 points is added under

§4A1.1(a). Because this particular robbery met the definition of a felony crime of

violence and independently would have received 2 criminal history points under

§4A1.1(b), it may serve as a predicate under the career offender guideline.

Note, however, that if the sentences in the example above were imposed thirteen years

ago, the robbery independently would have received no criminal history points under

§4A1.1(b), because it was not imposed within ten years of the defendant’s

commencement of the instant offense. See §4A1.2(e)(2). Accordingly, it may not serve

as a predicate under the career offender guideline.

(B) Upward Departure Provision.—CountingTreating multiple prior sentences as a single

sentence may result in a criminal history score that underrepresents the seriousness of

the defendant’s criminal history and the danger that the defendant presents to the public.

In such a case, an upward departure may be warranted. For example, if a defendant

was convicted of a number of serious non-violent offenses committed on different

occasions, and the resulting sentences were countedtreated as a single sentence because

either the sentences resulted from offenses contained in the same charging instrument or

the defendant was sentenced for these offenses on the same day, the assignment of a

single set of points may not adequately reflect the seriousness of the defendant’s

criminal history or the frequency with which the defendant has committed crimes.

* * *

§4B1.2. Definitions of Terms Used in Section 4B1.1

(a) The term “crime of violence” means any offense under federal or state law,

punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of physical

force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives,

or otherwise involves conduct that presents a serious potential risk of

physical injury to another.

(b) The term “controlled substance offense” means an offense under federal or state

law, punishable by imprisonment for a term exceeding one year, that prohibits

the manufacture, import, export, distribution, or dispensing of a controlled

substance (or a counterfeit substance) or the possession of a controlled substance

(or a counterfeit substance) with intent to manufacture, import, export, distribute,

or dispense.

instant offense of conviction subsequent to sustaining at least two felony

convictions of either a crime of violence or a controlled substance offense (i.e.,

two felony convictions of a crime of violence, two felony convictions of a

controlled substance offense, or one felony conviction of a crime of violence and

one felony conviction of a controlled substance offense), and (2) the sentences

for at least two of the aforementioned felony convictions are counted separately

under the provisions of §4A1.1(a), (b), or (c). The date that a defendant

sustained a conviction shall be the date that the guilt of the defendant has been

established, whether by guilty plea, trial, or plea of nolo contendere.

Commentary

Application Notes:

1. For purposes of this guideline—

* * *

A violation of 18 U.S.C. § 924(c) or § 929(a) is a “crime of violence” or a “controlled substance

offense” if the offense of conviction established that the underlying offense was a “crime of

violence” or a “controlled substance offense”. (Note that in the case of a prior 18 U.S.C.

§ 924(c) or § 929(a) conviction, if the defendant also was convicted of the underlying offense, the

sentences for the two prior convictions will be countedtreated as a single sentence under §4A1.2

(Definitions and Instructions for Computing Criminal History).)

* * *

7. TECHNICAL

Reason for Amendment: This amendment makes certain technical changes to the Guidelines Manual.

First, the amendment sets forth technical changes to reflect the editorial reclassification of certain

sections in the United States Code. Effective February 2014, the Office of the Law Revision Counsel

transferred provisions relating to voting and elections from titles 2 and 42 to a new title 52. It also

transferred provisions of the National Security Act of 1947 from one place to another in title 50. To

reflect the new section numbers of the reclassified provisions, changes are made to—

(1) the Commentary to §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);

(2) the Commentary to §2H2.1 (Obstructing an Election or Registration);

(3) the Commentary to §2M3.9 (Disclosure of Information Identifying a Covert Agent);

(4) Application Note 5 to §5E1.2 (Fines for Individual Defendants); and

(5) Appendix A (Statutory Index).

Second, it makes stylistic and technical changes to the Commentary following §3D1.5 (Determining the

Total Punishment) captioned “Illustrations of the Operation of the Multiple-Count Rules” to better

reflect its purpose as a concluding commentary to Part D of Chapter Three.

Finally, it makes clerical changes to—

(1) the Background Commentary to §1B1.11 (Use of Guidelines Manual in Effect on Date of

Sentencing (Policy Statement)), to correct a typographical error in a U.S. Reports

citation;

(2) the Commentary to §2B4.1 (Bribery in Procurement of Bank Loan and Other

Commercial Bribery), to correct certain United States Code citations to correspond with

their respective references in Appendix A that were revised by Amendment 769 (effective

November 1, 2012);

(3) subsection (e)(7) to §2D1.11 (Unlawfully Distributing, Importing, Exporting or

Possessing a Listed Chemical; Attempt or Conspiracy), to add a missing measurement

unit to the line referencing Norpseudoephedrine; and

(4) Application Note 2 to §2H4.2 (Willful Violations of the Migrant and Seasonal

Agricultural Worker Protection Act), to correct a typographical error in an

abbreviation.

Amendment:

§1B1.11. Use of Guidelines Manual in Effect on Date of Sentencing (Policy Statement)

* * *

Commentary

Application Notes:

* * *

Background: Subsections (a) and (b)(1) provide that the court should apply the Guidelines Manual in

effect on the date the defendant is sentenced unless the court determines that doing so would violate the

ex post facto clause in Article I, § 9 of the United States Constitution. Under 18 U.S.C. § 3553, the court

is to apply the guidelines and policy statements in effect at the time of sentencing. However, the Supreme

Court has held that the ex post facto clause applies to sentencing guideline amendments that subject the

defendant to increased punishment. See Peugh v. United States, 144133 S. Ct. 2072, 2078 (2013)

(holding that “there is an ex post facto violation when a defendant is sentenced under Guidelines

promulgated after he committed his criminal acts and the new version provides a higher applicable

Guidelines sentencing range than the version in place at the time of the offense”).

* * *

§2B4.1. Bribery in Procurement of Bank Loan and Other Commercial Bribery

* * *

Commentary

Statutory Provisions: 18 U.S.C. §§ 215, 224, 225; 26 U.S.C. §§ 9012(e), 9042(d); 41 U.S.C. §§ 53, 5441

U.S.C. §§ 8702, 8707; 42 U.S.C. §§ 1395nn(b)(1), (2), 1396h(b)(1),(2); 49 U.S.C. § 11902. For

additional statutory provision(s), see Appendix A (Statutory Index).

* * *

Background: This guideline applies to violations of various federal bribery statutes that do not involve

governmental officials. The base offense level is to be enhanced based upon the value of the unlawful

payment or the value of the action to be taken or effected in return for the unlawful payment, whichever

is greater.

* * *

This guideline also applies to making prohibited payments to induce the award of subcontracts

on federal projects for which the maximum term of imprisonment authorized is ten years. 41 U.S.C.

§§ 51, 53-5441 U.S.C. §§ 8702, 8707. Violations of 42 U.S.C. § 1320a-7b involve the offer or

acceptance of a payment to refer an individual for services or items paid for under a federal health care

program (e.g., the Medicare and Medicaid programs).

* * *

§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

* * *

Commentary

Statutory Provisions: 2 U.S.C. §§ 437g(d)(1), 439a, 441a, 441a-1, 441b, 441c, 441d, 441e, 441f, 441g,

441h(a), 441i, 441k; 18 U.S.C. § 607; 52 U.S.C. §§ 30109(d), 30114, 30116, 30117, 30118, 30119,

30120, 30121, 30122, 30123, 30124(a), 30125, 30126. For additional provision(s), see Appendix A

(Statutory Index) (Appendix A).

Application Notes:

1. Definitions.—For purposes of this guideline:

“Foreign national” has the meaning given that term in section 319(b) of the Federal Election

Campaign Act of 1971, 2 U.S.C. § 441e(b)52 U.S.C. § 30121(b).

“Government of a foreign country” has the meaning given that term in section 1(e) of the

Foreign Agents Registration Act of 1938 (22 U.S.C. § 611(e)).

“Governmental funds” means money, assets, or property, of the United States government, of a

State government, or of a local government, including any branch, subdivision, department,

agency, or other component of any such government. “State” means any of the fifty States, the

District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands,

Guam, the Northern Mariana Islands, or American Samoa. “Local government” means the

government of a political subdivision of a State.

“Illegal transaction” means (A) any contribution, donation, solicitation, or expenditure of

money or anything of value, or any other conduct, prohibited by the Federal Election Campaign

Act of 1971, 2 U.S.C. § 431 et seq52 U.S.C. § 30101 et seq.; (B) any contribution, donation,

solicitation, or expenditure of money or anything of value made in excess of the amount of such

contribution, donation, solicitation, or expenditure that may be made under such Act; and (C) in

the case of a violation of 18 U.S.C. § 607, any solicitation or receipt of money or anything of

value under that section. The terms “contribution” and “expenditure” have the meaning given

those terms in section 301(8) and (9) of the Federal Election Campaign Act of 1971 (2 U.S.C.

§ 431(8) and (9)52 U.S.C. § 30101(8) and (9)), respectively.

* * *

§2D1.11. Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical;

Attempt or Conspiracy

* * *

(e) CHEMICAL QUANTITY TABLE*

(All Other Precursor Chemicals)

Listed Chemicals and Quantity Base Offense Level

* * *

(7) List I Chemicals Level 18

At least 8.9 G but less than 35.6 G of Benzaldehyde;

At least 200 G but less than 800 G of Benzyl Cyanide;

At least 2 G but less than 8 G of Ergonovine;

At least 4 G but less than 16 G of Ergotamine;

At least 200 G but less than 800 G of Ethylamine;

At least 22 G but less than 88 G of Hydriodic Acid;

At least 12.5 G but less than 50.2 G of Iodine;

At least 3.2 KG but less than 12.8 KG of Isosafrole;

At least 2 G but less than 8 G of Methylamine;

At least 5 KG but less than 20 KG of N-Methylephedrine;

At least 5 KG but less than 20 KG of N-Methylpseudoephedrine;

At least 6.3 G but less than 25 G of Nitroethane;

At least 100 G but less than 400 G of Norpseudoephedrine;

At least 200 G but less than 800 G of Phenylacetic Acid;

At least 100 G but less than 400 G of Piperidine;

At least 3.2 KG but less than 12.8 KG of Piperonal;

At least 16 G but less than 64 G of Propionic Anhydride;

At least 3.2 KG but less than 12.8 KG of Safrole;

At least 4 KG but less than 16 KG of 3, 4-Methylenedioxyphenyl-2-propanone;

At least 11.4 L but less than 45.4 L of Gamma-butyrolactone;

At least 7 G but less than 29 G of Red Phosphorus, White Phosphorus, or Hypophosphorous

Acid;

List II Chemicals

At least 440 G but less than 726 G of Acetic Anhydride;

At least 47 KG but less than 82.25 KG of Acetone;

At least 800 G but less than 1.4 KG of Benzyl Chloride;

At least 43 KG but less than 75.25 KG of Ethyl Ether;

At least 48 KG but less than 84 KG of Methyl Ethyl Ketone;

At least 400 G but less than 700 G of Potassium Permanganate;

At least 52 KG but less than 91 KG of Toluene.

* * *

§2H2.1. Obstructing an Election or Registration

* * *

Commentary

Statutory Provisions: 18 U.S.C. §§ 241, 242, 245(b)(1)(A), 592, 593, 594, 597, 1015(f); 42 U.S.C.

§§ 1973i, 1973j(a), (b)52 U.S.C. §§ 10307, 10308(a), (b). For additional statutory provision(s), see

Appendix A (Statutory Index).

* * *

§2H4.2. Willful Violations of the Migrant and Seasonal Agricultural Worker Protection Act

* * *

Commentary

* * *

Application Notes:

* * *

2. Application of Subsection (b)(2).—Section 1851 of title 29, United States Code, covers a wide

range of conduct. Accordingly, the enhancement in subsection (b)(2) applies only if the instant

offense is similar to previous misconduct that resulted in a civil or administrative adjudication

under the provisions of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C.

§ 1801 et.et seq.).

* * *

§2M3.9. Disclosure of Information Identifying a Covert Agent

* * *

Commentary

Statutory Provision: 50 U.S.C. § 4213121.

Application Notes:

1. See Commentary to §2M3.1.

2. This guideline applies only to violations of 50 U.S.C. § 4213121 by persons who have or

previously had authorized access to classified information. This guideline does not apply to

violations of 50 U.S.C. § 4213121 by defendants, including journalists, who disclosed such

information without having or having had authorized access to classified information.

Violations of 50 U.S.C. § 4213121 not covered by this guideline may vary in the degree of harm

they inflict, and the court should impose a sentence that reflects such harm. See §2X5.1 (Other

Offenses).

3. A term of imprisonment imposed for a conviction under 50 U.S.C. § 4213121 shall be imposed

consecutively to any other term of imprisonment. See 50 U.S.C. § 4213121(d).

Background: The alternative base offense levels reflect a statutory distinction by providing a greater

base offense level for a violation of 50 U.S.C. § 4213121 by an official who has or had authorized access

to classified information identifying a covert agent than for a violation by an official with authorized

access only to other classified information. This guideline does not apply to violations of 50 U.S.C.

§ 4213121 by defendants who disclosed such information without having, or having had, authorized

access to classified information.

* * *

§3D1.5. Determining the Total Punishment

Use the combined offense level to determine the appropriate sentence in accordance with

the provisions of Chapter Five.

Commentary

This section refers the court to Chapter Five (Determining the Sentence) in order to determine

the total punishment to be imposed based upon the combined offense level. The combined offense level is

subject to adjustments from Chapter Three, Part E (Acceptance of Responsibility) and Chapter Four,

Part B (Career Offenders and Criminal Livelihood).

* * * * *

Concluding Commentary to Part D of Chapter Three

Illustrations of the Operation of the Multiple-Count Rules

The following examples, drawn from presentence reports in the Commission’s files, illustrate the

operation of the guidelines for multiple counts. The examples are discussed summarily; a more

thorough, step-by-step approach is recommended until the user is thoroughly familiar with the

guidelines.

1. Defendant A was convicted onof four counts, each charging robbery of a different bank. Each

would represent a distinct Group. §3D1.2. In each of the first three robberies, the offense level

was 22 (20 plus a 2-level increase because a financial institution was robbed) (§2B3.1(b)). In

the fourth robbery $12,000$21,000 was taken and a firearm was displayed; the offense level was

therefore 28. As the first three counts are 6 levels lower than the fourth, each of the first three

represents one-half unit for purposes of §3D1.4. Altogether there are 2 1/2 Units, and the

offense level for the most serious (28) is therefore increased by 3 levels under the table. The

combined offense level is 31.

2. Defendant CB was convicted onof four counts: (1) distribution of 230 grams of cocaine;

(2) distribution of 150 grams of cocaine; (3) distribution of 75 grams of heroin; (4) offering a

DEA agent $20,000 to avoid prosecution. The combined offense level for drug offenses is

determined by the total quantity of drugs, converted to marihuana equivalents (using the Drug

Equivalency Tables in the Commentary to §2D1.1 (Unlawful Manufacturing, Importing,

Exporting, or Trafficking)). The first count translates into 46 kilograms of marihuana; the

second count translates into 30 kilograms of marihuana; and the third count translates into 75

kilograms of marihuana. The total is 151 kilograms of marihuana. Under §2D1.1, the combined

offense level for the drug offenses is 24. In addition, because of the attempted bribe of the DEA

agent, this offense level is increased by 2 levels to 26 under §3C1.1 (Obstructing or Impeding the

Administration of Justice). Because the conduct constituting the bribery offense is accounted for

by §3C1.1, it becomes part of the same Group as the drug offenses pursuant to §3D1.2(c). The

combined offense level is 26 pursuant to §3D1.3(a), because the offense level for bribery (2220)

is less than the offense level for the drug offenses (26).

3. Defendant DC was convicted of four counts arising out of a scheme pursuant to which the

defendant received kickbacks from subcontractors. The counts were as follows: (1) The

defendant received $27,000$1,000 from subcontractor A relating to contract X (Mail Fraud). (2)

The defendant received $12,000$1,000 from subcontractor A relating to contract X (Commercial

Bribery). (3) The defendant received $15,000$1,000 from subcontractor A relating to contract Y

(Mail Fraud). (4) The defendant received $20,000$1,000 from subcontractor B relating to

contract Z (Commercial Bribery). The mail fraud counts are covered by §2B1.1 (Theft, Property

Destruction, and Fraud). The bribery counts are covered by §2B4.1 (Bribery in Procurement of

Bank Loan and Other Commercial Bribery), which treats the offense as a sophisticated fraud.

The total money involved is $74,000$4,000, which results in an offense level of 169 under either

§2B1.1 (assuming the application of the “sophisticated means” enhancement in §2B1.1(b)(10))

or §2B4.1. Since these two guidelines produce identical offense levels, the combined offense

level is 169.

* * *

§5E1.2. Fines for Individual Defendants

* * *

Commentary

Application Notes:

* * *

5. Subsection (c)(4) applies to statutes that contain special provisions permitting larger fines; the

guidelines do not limit maximum fines in such cases. These statutes include, among others: 21

U.S.C. §§ 841(b) and 960(b), which authorize fines up to $8 million in offenses involving the

manufacture, distribution, or importation of certain controlled substances; 21 U.S.C. § 848(a),

which authorizes fines up to $4 million in offenses involving the manufacture or distribution of

controlled substances by a continuing criminal enterprise; 18 U.S.C. § 1956(a), which

authorizes a fine equal to the greater of $500,000 or two times the value of the monetary

instruments or funds involved in offenses involving money laundering of financial instruments;

18 U.S.C. § 1957(b)(2), which authorizes a fine equal to two times the amount of any criminally

derived property involved in a money laundering transaction; 33 U.S.C. § 1319(c), which

authorizes a fine of up to $50,000 per day for violations of the Water Pollution Control Act; 42

U.S.C. § 6928(d), which authorizes a fine of up to $50,000 per day for violations of the Resource

Conservation Act; and 2 U.S.C. § 437g(d)(1)(D)52 U.S.C. § 30109(d)(1)(D), which authorizes,

for violations of the Federal Election Campaign Act under 2 U.S.C. § 441f52 U.S.C. § 30122, a

fine up to the greater of $50,000 or 1,000 percent of the amount of the violation, and which

requires, in the case of such a violation, a minimum fine of not less than 300 percent of the

amount of the violation.

* * *

APPENDIX A - STATUTORY INDEX

2 U.S.C. § 192 2J1.1, 2J1.5

2 U.S.C. § 390 2J1.1, 2J1.5

2 U.S.C. § 437g(d) 2C1.8

2 U.S.C. § 439a 2C1.8

2 U.S.C. § 441a 2C1.8

2 U.S.C. § 441a-1 2C1.8

2 U.S.C. § 441b 2C1.8

2 U.S.C. § 441c 2C1.8

2 U.S.C. § 441d 2C1.8

2 U.S.C. § 441e 2C1.8

2 U.S.C. § 441f 2C1.8

2 U.S.C. § 441g 2C1.8

2 U.S.C. § 441h(a) 2C1.8

2 U.S.C. § 441i 2C1.8

2 U.S.C. § 441k 2C1.8

7 U.S.C. § 6 2B1.1

7 U.S.C. § 6b(A) 2B1.1

* * *

42 U.S.C. § 1761(o)(2) 2B1.1

42 U.S.C. § 1973i(c) 2H2.1

42 U.S.C. § 1973i(d) 2H2.1

42 U.S.C. § 1973i(e) 2H2.1

42 U.S.C. § 1973j(a) 2H2.1

42 U.S.C. § 1973j(b) 2H2.1

42 U.S.C. § 1973j(c) 2X1.1

42 U.S.C. § 1973aa 2H2.1

42 U.S.C. § 1973aa-1 2H2.1

42 U.S.C. § 1973aa-1a 2H2.1

42 U.S.C. § 1973aa-3 2H2.1

42 U.S.C. § 1973bb 2H2.1

42 U.S.C. § 1973gg-10 2H2.1

42 U.S.C. § 2000e-13 2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2, 2A2.3

* * *

50 U.S.C. § 421 2M3.9

50 U.S.C. § 783 2M3.3

50 U.S.C. § 1705 2M5.1, 2M5.2, 2M5.3

50 U.S.C. § 3121 2M3.9

50 U.S.C. App. § 462 2M4.1

50 U.S.C. App. §

527(e) 2X5.2

50 U.S.C. App. § 2410 2M5.1

52 U.S.C. § 10307(c) 2H2.1

52 U.S.C. § 10307(d) 2H2.1

52 U.S.C. § 10307(e) 2H2.1

52 U.S.C. § 10308(a) 2H2.1

52 U.S.C. § 10308(b) 2H2.1

52 U.S.C. § 10308(c) 2X1.1

52 U.S.C. § 10501 2H2.1

52 U.S.C. § 10502 2H2.1

52 U.S.C. § 10503 2H2.1

52 U.S.C. § 10505 2H2.1

52 U.S.C. § 10701 2H2.1

52 U.S.C. § 20511 2H2.1

52 U.S.C. § 30109(d) 2C1.8

52 U.S.C. § 30114 2C1.8

52 U.S.C. § 30116 2C1.8

52 U.S.C. § 30117 2C1.8

52 U.S.C. § 30118 2C1.8

52 U.S.C. § 30119 2C1.8

52 U.S.C. § 30120 2C1.8

52 U.S.C. § 30121 2C1.8

52 U.S.C. § 30122 2C1.8

52 U.S.C. § 30123 2C1.8

52 U.S.C. § 30124(a) 2C1.8

52 U.S.C. § 30125 2C1.8

52 U.S.C. § 30126 2C1.8