[Federal Register: January 2, 2008 (Volume 73, Number 1)]
[Notices]
[Page 217-220]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02ja08-90]
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UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for the United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice of final action regarding amendments to Policy Statement
Sec. 1B1.10, effective March 3, 2008.
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SUMMARY: The Sentencing Commission hereby gives notice of amendments to
a policy statement and commentary made pursuant to its authority under
28 U.S.C. 994(a) and (u). The Commission promulgated an amendment to
Policy Statement Sec. 1B1.10 (Reduction in Term of Imprisonment as a
Result of Amended Guideline Range) clarifying when, and to what extent,
a sentencing reduction is considered consistent with the policy
statement and therefore authorized under 18 U.S.C. 3582(c)(2).
The Commission also has reviewed amendments submitted to Congress
on May 1, 2007, that may result in a lower guideline range and has
designated Amendment 706, as amended by Amendment 711, for inclusion in
Policy Statement Sec. 1B1.10 as an amendment that may be applied
retroactively.
DATES: The effective date of these policy statement and commentary
amendments is March 3, 2008.
FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Information
Officer, Telephone: (202) 502-4597.
SUPPLEMENTARY INFORMATION: 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 specifies in
what circumstances and by what amount sentences of imprisonment may be
reduced if the Commission reduces the term of imprisonment recommended
in the guidelines applicable to a particular offense or category of
offenses pursuant to 28 U.S.C. 994(u).
Additional information may be accessed through the Commission's Web
site at http://www.ussc.gov.
Authority: 28 U.S.C. 994(a), (u).
Ricardo H. Hinojosa,
Chair.
1. Amendment: Chapter One, Part B, Subpart One, is amended by
striking Sec. 1B1.10 and its accompanying commentary and inserting the
following:
``Sec. 1B1.10. Reduction in Term of Imprisonment as a
Result of Amended Guideline Range (Policy Statement)
(a) Authority.--
(1) In General.--In a case in which a defendant is serving a term
of
[[Page 218]]
imprisonment, and the guideline range applicable to that defendant has
subsequently been lowered as a result of an amendment to the Guidelines
Manual listed in subsection (c) below, the court may reduce the
defendant's term of imprisonment as provided by 18 U.S.C. 3582(c)(2).
As required by 18 U.S.C. 3582(c)(2), any such reduction in the
defendant's term of imprisonment shall be consistent with this policy
statement.
(2) Exclusions.--A reduction in the defendant's term of
imprisonment is not consistent with this policy statement and therefore
is not authorized under 18 U.S.C. 3582(c)(2) if--
(A) None of the amendments listed in subsection (c) is applicable
to the defendant; or
(B) An amendment listed in subsection (c) does not have the effect
of lowering the defendant's applicable guideline range.
(3) Limitation.--Consistent with subsection (b), proceedings under
18 U.S.C. 3582(c)(2) and this policy statement do not constitute a full
resentencing of the defendant.
(b) Determination of Reduction in Term of Imprisonment.--
(1) In General.--In determining whether, and to what extent, a
reduction in the defendant's term of imprisonment under 18 U.S.C.
3582(c)(2) and this policy statement is warranted, the court shall
determine the amended guideline range that would have been applicable
to the defendant if the amendment(s) to the guidelines listed in
subsection (c) had been in effect at the time the defendant was
sentenced. In making such determination, the court shall substitute
only the amendments listed in subsection (c) for the corresponding
guideline provisions that were applied when the defendant was sentenced
and shall leave all other guideline application decisions unaffected.
(2) Limitations and Prohibition on Extent of Reduction.--
(A) In General.--Except as provided in subdivision (B), the court
shall not reduce the defendant's term of imprisonment under 18 U.S.C.
3582(c)(2) and this policy statement to a term that is less than the
minimum of the amended guideline range determined under subdivision (1)
of this subsection.
(B) Exception.--If the original term of imprisonment imposed was
less than the term of imprisonment provided by the guideline range
applicable to the defendant at the time of sentencing, a reduction
comparably less than the amended guideline range determined under
subdivision (1) of this subsection may be appropriate. However, if the
original term of imprisonment constituted a non-guideline sentence
determined pursuant to 18 U.S.C. 3553(a) and United States v. Booker,
543 U.S. 220 (2005), a further reduction generally would not be
appropriate.
(C) Prohibition.--In no event may the reduced term of imprisonment
be less than the term of imprisonment the defendant has already served.
(c) Amendments covered by this policy statement are listed in
Appendix C as follows: 126, 130, 156, 176, 269, 329, 341, 371, 379,
380, 433, 454, 461, 484, 488, 490, 499, 505, 506, 516, 591, 599, 606,
657, and 702.
Commentary
Application Notes:
1. Application of Subsection (a).--
(A) Eligibility.--Eligibility for consideration under 18 U.S.C.
3582(c)(2) is triggered only by an amendment listed in subsection (c)
that lowers the applicable guideline range. Accordingly, a reduction in
the defendant's term of imprisonment is not authorized under 18 U.S.C.
3582(c)(2) and is not consistent with this policy statement if: (i)
None of the amendments listed in subsection (c) is applicable to the
defendant; or (ii) an amendment listed in subsection (c) is applicable
to the defendant but the amendment does not have the effect of lowering
the defendant's applicable guideline range because of the operation of
another guideline or statutory provision (e.g., a statutory mandatory
minimum term of imprisonment).
(B) Factors for Consideration.--
(i) In General.--Consistent with 18 U.S.C. 3582(c)(2), the court
shall consider the factors set forth in 18 U.S.C. 3553(a) in
determining: (I) whether a reduction in the defendant's term of
imprisonment is warranted; and (II) the extent of such reduction, but
only within the limits described in subsection (b).
(ii) Public Safety Consideration.--The court shall consider the
nature and seriousness of the danger to any person or the community
that may be posed by a reduction in the defendant's term of
imprisonment in determining: (I) Whether such a reduction is warranted;
and (II) the extent of such reduction, but only within the limits
described in subsection (b).
(iii) Post-Sentencing Conduct.--The court may consider post-
sentencing conduct of the defendant that occurred after imposition of
the original term of imprisonment in determining: (I) Whether a
reduction in the defendant's term of imprisonment is warranted; and
(II) the extent of such reduction, but only within the limits described
in subsection (b).
2. Application of Subsection (b)(1).--In determining the amended
guideline range under subsection (b)(1), the court shall substitute
only the amendments listed in subsection (c) for the corresponding
guideline provisions that were applied when the defendant was
sentenced. All other guideline application decisions remain unaffected.
3. Application of Subsection (b)(2).--Under subsection (b)(2), the
amended guideline range determined under subsection (b)(1) and the term
of imprisonment already served by the defendant limit the extent to
which the court may reduce the defendant's term of imprisonment under
18 U.S.C. 3582(c)(2) and this policy statement. Specifically, if the
original term of imprisonment imposed was within the guideline range
applicable to the defendant at the time of sentencing, the court shall
not reduce the defendant's term of imprisonment to a term that is less
than the minimum term of imprisonment provided by the amended guideline
range determined under subsection (b)(1). For example, in a case in
which: (A) The guideline range applicable to the defendant at the time
of sentencing was 41 to 51 months; (B) the original term of
imprisonment imposed was 41 months; and (C) the amended guideline range
determined under subsection (b)(1) is 30 to 37 months, the court shall
not reduce the defendant's term of imprisonment to a term less than 30
months.
If the original term of imprisonment imposed was less than the term
of imprisonment provided by the guideline range applicable to the
defendant at the time of sentencing, a reduction comparably less than
the amended guideline range determined under subsection (b)(1) may be
appropriate. For example, in a case in which: (A) The guideline range
applicable to the defendant at the time of sentencing was 70 to 87
months; (B) the defendant's original term of imprisonment imposed was
56 months (representing a downward departure of 20 percent below the
minimum term of imprisonment provided by the guideline range applicable
to the defendant at the time of sentencing); and (C) the amended
guideline range determined under subsection (b)(1) is 57 to 71 months,
a reduction to a term of imprisonment of 46 months (representing a
reduction of approximately 20 percent below the minimum term of
imprisonment provided by the amended guideline range determined under
subsection
[[Page 219]]
(b)(1)) would amount to a comparable reduction and may be appropriate.
In no case, however, shall the term of imprisonment be reduced
below time served. Subject to these limitations, the sentencing court
has the discretion to determine whether, and to what extent, to reduce
a term of imprisonment under this section.
4. Supervised Release.--
(A) Exclusion Relating to Revocation.--Only a term of imprisonment
imposed as part of the original sentence is authorized to be reduced
under this section. This section does not authorize a reduction in the
term of imprisonment imposed upon revocation of supervised release.
(B) Modification Relating to Early Termination.--If the prohibition
in subsection (b)(2)(C) relating to time already served precludes a
reduction in the term of imprisonment to the extent the court
determines otherwise would have been appropriate as a result of the
amended guideline range determined under subsection (b)(1), the court
may consider any such reduction that it was unable to grant in
connection with any motion for early termination of a term of
supervised release under 18 U.S.C. 3583(e)(1). However, the fact that a
defendant may have served a longer term of imprisonment than the court
determines would have been appropriate in view of the amended guideline
range determined under subsection (b)(1) shall not, without more,
provide a basis for early termination of supervised release. Rather,
the court should take into account the totality of circumstances
relevant to a decision to terminate supervised release, including the
term of supervised release that would have been appropriate in
connection with a sentence under the amended guideline range determined
under subsection (b)(1).
Background: Section 3582(c)(2) of Title 18, United States Code,
provides: `[I]n the case of a defendant who has been sentenced to a
term of imprisonment based on a sentencing range that has subsequently
been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o),
upon motion of the defendant or the Director of the Bureau of Prisons,
or on its own motion, the court may reduce the term of imprisonment,
after considering the factors set forth in section 3553(a) to the
extent that they are applicable, if such a reduction is consistent with
applicable policy statements issued by the Sentencing Commission.'
This policy statement provides guidance and limitations for a court
when considering a motion under 18 U.S.C. 3582(c)(2) and implements 28
U.S.C. 994(u), which provides: `If the Commission reduces the term of
imprisonment recommended in the guidelines applicable to a particular
offense or category of offenses, it shall specify in what circumstances
and by what amount the sentences of prisoners serving terms of
imprisonment for the offense may be reduced.'
Among the factors considered by the Commission in selecting the
amendments included in subsection (c) were the purpose of the
amendment, the magnitude of the change in the guideline range made by
the amendment, and the difficulty of applying the amendment
retroactively to determine an amended guideline range under subsection
(b)(1).
The listing of an amendment in subsection (c) reflects policy
determinations by the Commission that a reduced guideline range is
sufficient to achieve the purposes of sentencing and that, in the sound
discretion of the court, a reduction in the term of imprisonment may be
appropriate for previously sentenced, qualified defendants. The
authorization of such a discretionary reduction does not otherwise
affect the lawfulness of a previously imposed sentence, does not
authorize a reduction in any other component of the sentence, and does
not entitle a defendant to a reduced term of imprisonment as a matter
of right.
The Commission has not included in this policy statement amendments
that generally reduce the maximum of the guideline range by less than
six months. This criterion is in accord with the legislative history of
28 U.S.C. 994(u) (formerly section 994(t)), which states: `It should be
noted that the Committee does not expect that the Commission will
recommend adjusting existing sentences under the provision when
guidelines are simply refined in a way that might cause isolated
instances of existing sentences falling above the old guidelines* or
when there is only a minor downward adjustment in the guidelines. The
Committee does not believe the courts should be burdened with
adjustments in these cases.' S. Rep. 225, 98th Cong., 1st Sess. 180
(1983).
*So in original. Probably should be `to fall above the amended
guidelines'.''.
Reason for Amendment: This amendment makes a number of
modifications to *1B1.10 (Reduction in Term of Imprisonment as a Result
of Amended Guideline Range) to clarify when, and to what extent, a
reduction in the defendant's term of imprisonment is consistent with
the policy statement and is therefore authorized under 18 U.S.C.
3582(c)(2).
The amendment modifies subsection (a) to state the statutory
requirement under 18 U.S.C. 3582(c)(2) that a reduction in the
defendant's term of imprisonment be consistent with the policy
statement. The amendment also modifies subsection (a) to state that,
consistent with subsection (b), proceedings under 18 U.S.C. 3582(c)(2)
do not constitute a full resentencing of the defendant.
In addition, the amendment amends subsection (a) to clarify
circumstances in which a reduction in the defendant's term of
imprisonment is not consistent with the policy statement and therefore
is not authorized under 18 U.S.C. 3582(c)(2). Specifically, the
amendment provides that a reduction in the defendant's term of
imprisonment is not consistent with Sec. 1B1.10 and therefore is not
authorized under 18 U.S.C. 3582(c)(2) if (1) none of the amendments
listed in subsection (c) is applicable to the defendant; or (2) an
amendment listed in subsection (c) does not have the effect of lowering
the defendant's applicable guideline range. Application Note 1 provides
further explanation that an amendment may be listed in subsection (c)
but not have the effect of lowering the defendant's applicable
guideline range because of the operation of another guideline or
statutory provision (e.g., a statutory mandatory minimum term of
imprisonment). In such a case, a reduction in the defendant's term of
imprisonment is not consistent with Sec. 1B1.10 and therefore is not
authorized under 18 U.S.C. 3582(c)(2).
The amendment modifies subsection (b) to clarify the limitations on
the extent to which a court may reduce the defendant's term of
imprisonment under 18 U.S.C. 582(c)(2) and Sec. 1B1.10. Specifically,
in subsection (b)(1) the amendment provides that, in determining
whether, and to what extent, a reduction in the defendant's term of
imprisonment is warranted, the court shall determine the amended
guideline range that would have been applicable to the defendant if the
amendment(s) to the guidelines listed in subsection (c) had been in
effect at the time the defendant was sentenced, substituting only the
amendments listed in subsection (c) for the corresponding guideline
provisions that were applied when the defendant was sentenced and
leaving all other guideline application decisions unaffected.
In subsection (b)(2) the amendment provides further clarification
that the court shall not reduce the defendant's term of imprisonment to
a term that is
[[Page 220]]
less than the minimum of the amended guideline range, except if the
original term of imprisonment imposed was less than the term of
imprisonment provided by the guideline range applicable to the
defendant at the time of sentencing, a reduction comparably less than
the amended guideline range may be appropriate. However, if the
original term of imprisonment constituted a non-guideline sentence
determined pursuant to 18 U.S.C. 3553(a) and United States v. Booker,
543 U.S. 220 (2005), a further reduction generally would not be
appropriate. The amendment clarifies that in no event may the reduced
term of imprisonment be less than the term of imprisonment the
defendant has already served. The amendment adds in Application Note 3
examples illustrating the limitations on the extent to which a court
may reduce a defendant's term of imprisonment under 18 U.S.C.
3582(c)(2) and Sec. 1B1.10.
The amendment also modifies Application Note 1 to delineate more
clearly factors for consideration by the court in determining whether,
and to what extent, a reduction in the defendant's term of imprisonment
is warranted under 18 U.S.C. 3582(c)(2). Specifically, the amendment
provides that the court shall consider the factors set forth in 18
U.S.C. 3553(a), as required by 18 U.S.C. 3582(c)(2), and the nature and
seriousness of the danger to any person or the community that may be
posed by such a reduction, but only within the limits described in
subsection (b). In addition, the amendment provides that the court may
consider post-sentencing conduct of the defendant that occurred after
imposition of the original term of imprisonment, but only within the
limits described in subsection (b).
The amendment makes conforming changes and adds headings to the
application notes, and makes conforming changes to the background
commentary.
2. Amendment: Section 1B1.10, as amended by Amendment 1, is further
amended in subsection (c) by inserting ``Covered Amendments.--'' before
``Amendments''; by striking ``and 702''; and by inserting ``702, and
706 as amended by 711'' before the period.
Reason for Amendment: This amendment expands the listing in Sec.
1B1.10(c) to implement the directive in 28 U.S.C. 994(u) with respect
to guideline amendments that may be considered for retroactive
application. The Commission has determined that Amendment 706, as
amended by Amendment 711, should be applied retroactively because the
applicable standards set forth in the background commentary to Sec.
1B1.10 (Reduction in Term of Imprisonment as a Result of Amended
Guideline Range) appear to be met. Specifically: (1) As stated in the
reason for amendment accompanying Amendment 706, the purpose of that
amendment was to alleviate some of the urgent and compelling problems
associated with the penalty structure for crack cocaine offenses; (2)
the Commission's analysis of cases potentially eligible for retroactive
application of Amendment 706 (available on the Commission's Web site at
http://www.ussc.gov) indicates that the number of cases potentially
involved is substantial, and the magnitude of the change in the
guideline range, i.e., two levels, is not difficult to apply in
individual cases; and (3) the Commission received persuasive written
comment and testimony at its November 13, 2007 public hearing on
retroactivity that the administrative burdens of applying Amendment 706
retroactively are manageable. In addition, public safety will be
considered in every case because Sec. 1B1.10, as amended by Amendment
712, requires the court, in determining whether and to what extent a
reduction in the defendant's term of imprisonment is warranted, to
consider the nature and seriousness of the danger to any person or the
community that may be posed by such a reduction.
[FR Doc. E7-25483 Filed 12-31-07; 8:45 am]
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