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AMENDMENTS TO THE SENTENCING GUIDELINES
Pursuant to section 994(p) of title 28, United States Code, the United States Sentencing Commission hereby submits to the Congress the following amendment to the Guidelines Manual and the reason therefor. As authorized by such section, the Commission specifies an effective date of August 1, 2016, for this amendment.
Amendment to the Guidelines Manual
- Amendment: The Commentary to §4B1.1 captioned âApplication Notesâ is amended by inserting at the beginning of Note 1 the following new heading: âDefinitions.ââ; by inserting at the beginning of Note 2 the following new heading: ââOffense Statutory Maximumâ.ââ; and by inserting at the end the following new Note 4:
â4. Departure Provision for State Misdemeanors.âIn a case in which one or both of the defendantâs âtwo prior felony convictionsâ is based on an offense that was classified as a misdemeanor at the time of sentencing for the instant federal offense, application of the career offender guideline may result in a guideline range that substantially overrepresents the seriousness of the defendantâs criminal history or substantially overstates the seriousness of the instant offense. In such a case, a downward departure may be warranted without regard to the limitation in §4A1.3(b)(3)(A).â.
Section 4B1.2(a) is amended by striking paragraph (2) as follows:
â (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.â,
and inserting the following:
â (2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).â.
The Commentary to §4B1.2 captioned âApplication Notesâ is amendedâ
in Note 1 by inserting âDefinitions.ââ as a heading before the beginning of the note; by striking the second and third undesignated paragraphs as follows:
â âCrime of violenceâ includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as âcrimes of
violenceâ if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another.
âCrime of violenceâ does not include the offense of unlawful possession of a firearm by a felon, unless the possession was of a firearm described in 26 U.S.C. § 5845(a). Where the instant offense of conviction is the unlawful possession of a firearm by a felon, §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) provides an increase in offense level if the defendant had one or more prior felony convictions for a crime of violence or controlled substance offense; and, if the defendant is sentenced under the provisions of 18 U.S.C. § 924(e), §4B1.4 (Armed Career Criminal) will apply.â,
and inserting the following new paragraphs:
â âForcible sex offenseâ includes where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced. The offenses of sexual abuse of a minor and statutory rape are included only if the sexual abuse of a minor or statutory rape was (A) an offense described in 18 U.S.C. § 2241(c) or (B) an offense under state law that would have been an offense under section 2241(c) if the offense had occurred within the special maritime and territorial jurisdiction of the United States.
âExtortionâ is obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.â;
and by striking the fifth undesignated paragraph as follows:
â Unlawfully possessing a firearm described in 26 U.S.C. § 5845(a) (e.g., a sawed- off shotgun or sawed-off rifle, silencer, bomb, or machine gun) is a âcrime of violenceâ.â;
in Note 2, at the beginning of the note, by inserting the following new heading: âOffense of Conviction as Focus of Inquiry.ââ;
in Note 3, at the beginning of the note, by inserting the following new heading: âApplicability of §4A1.2.ââ;
and by inserting at the end the following new Note 4:
The âcrime of violenceâ definition at §4B1.2 is used to trigger increased sentences under several provisions in the Guidelines Manual, the most significant of which is §4B1. (Career Offender). See also §§2K1.3, 2K2.1, 2S1.1, 4A1.1(e), 7B1.1. The career offender guideline implements a directive to the Commission set forth at 28 U.S.C. § 994(h), which in turn identifies offenders for whom the guidelines must provide increased punishment. Tracking the criteria set forth in section 994(h), the Commission implemented the directive by identifying a defendant as a career offender if (1) the defendant was at least eighteen years old at the time he or she committed the instant offense of conviction; (2) the instant offense is a felony that is a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. Where these criteria are met, the directive at section 994(h), and therefore §4B1.1, provides for significantly higher sentences under the guidelines, such that the guideline range is âat or near the maximum [term of imprisonment] authorized.â Commission data shows that application of §4B1.1 resulted in an increased final offense level, an increased Criminal History Category, or both for 91.3 percent of defendants sentenced under the career offender guideline in fiscal year 2014. See U.S. Sentâg Commân, Quick Facts: Career Offenders (Nov. 2015) (46.3% of career offenders received an increase in both final offense level (from an average of 23 levels to 31 levels) and criminal history category (from an average of category IV to category VI); 32.6% had just a higher final offense level (from an average of 23 levels to 30 levels); and 12.4% had just a higher Criminal History Category (from an average of category IV to category VI)).
Residual Clause
First, the amendment deletes the âresidual clauseâ at §4B1.2(a)(2). Prior to the amendment, the term âcrime of violenceâ in §4B1.2 included any offense that âotherwise involves conduct that presents a serious potential risk of physical injury to another.â In Johnson, the Supreme Court considered an identical residual clause relating to the statutory definition of âviolent felonyâ in the Armed Career Criminal Act. The Court held that using the âresidual clauseâ to classify an offense as a âviolent felonyâ violated due process because the clause was unconstitutionally vague. See Johnson, 135 S. Ct. at
- While the Supreme Court in Johnson did not consider or address the sentencing guidelines, significant litigation has ensued regarding whether the Supreme Courtâs holding in Johnson should also apply to the residual clause in §4B1.2. Compare United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (rejecting the argument that the residual clause in §4B1.2 is unconstitutionally vague in light of Johnson) and United States v. Wilson, 622 F. Appâx 393, 405 n.51 (5th Cir. 2015) (in considering the applicability of Johnson, noting â[o]ur case law indicates that a defendant cannot bring a vagueness challenge against a Sentencing Guidelineâ), with United States v. Taylor, 803 F.3d 931 (8th Cir. 2015) (finding that previous circuit precedent holding that the guidelines cannot be unconstitutionally vague because they do not proscribe conduct is doubtful after Johnson); United States v. Madrid, 805 F.3d 1204, 1211 (10th Cir. 2015) (holding that that the residual clause of §4B1.2(a)(2) is void for vagueness); United States
v. Harbin, 610 F. Appâx 562 (6th Cir. 2015) (finding that defendant is entitled to the same relief as offenders sentenced under the residual clause of the ACCA); and United States v. Townsend, __ F. Appâx __, 2015 WL 9311394, at *4 (3d Cir. Dec. 23, 2015) (remanding for resentencing in light of the governmentâs concession that, pursuant to Johnson, the defendant should not have been sentenced as a career offender).
The Commission determined that the residual clause at §4B1.2 implicates many of the same concerns cited by the Supreme Court in Johnson, and, as a matter of policy, amends §4B1.2(a)(2) to strike the clause. Removing the residual clause has the advantage of alleviating the considerable application difficulties associated with that clause, as expressed by judges, probation officers, and litigants. Furthermore, removing the clause will alleviate some of the ongoing litigation and uncertainty resulting from the Johnson decision.
List of Enumerated Offenses
With the deletion of the residual clause under subsection (a)(2), there are two remaining components of the âcrime of violenceâ definition â the âelements clauseâ and the âenumerated offenses clause.â The âelements clauseâ set forth in subsection (a)(1) remains unchanged by the amendment. Thus, any offense under federal or state law, punishable by imprisonment for a term exceeding one year, qualifies as a âcrime of violenceâ if it has as an element the use, or attempted use, or threatened use of physical force against the person of another. Importantly, such an offense may, but need not, be specifically enumerated in subsection (a)(2) to qualify as a crime of violence.
The âenumerated offense clauseâ identifies specific offenses that qualify as crimes of violence. In applying this clause, courts compare the elements of the predicate offense of conviction with the elements of the enumerated offense in its âgeneric, contemporary definition.â As has always been the case, such offenses qualify as crimes of violence regardless of whether the offense expressly has as an element the use, attempted use, or threatened use of physical force against the person of another. While most of the offenses on the enumerated list under §4B1.2(a)(2) remain the same, the amendment does revise the list in a number of ways to focus on the most dangerous repeat offenders. The revised list is based on the Commissionâs consideration of public hearing testimony, a review of extensive public comment, and an examination of sentencing data relating to the risk of violence in these offenses and the recidivism rates of career offenders. Additionally, the Commissionâs revisions to the enumerated list also consider and reflect the fact that offenses not specifically enumerated will continue to qualify as a crime of violence if they satisfy the elements clause.
As amended, the enumerated offenses include murder, voluntary manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c). For easier application, all enumerated offenses
In reaching this conclusion, the Commission also considered that courts have struggled with identifying a uniform contemporary, generic definition of âburglary of dwelling.â In particular, circuits have disagreed regarding whether the requirement in Taylor v. United States, 495 U.S. 575, 598 (1990), that the burglary be of a âbuilding or other structureâ applies in addition to the guidelinesâ requirement that the burglary be of a âdwelling.â Compare United States v. Henriquez, 757 F.3d 144, 148-49 (4th Cir. 2014); United States v. McFalls, 592 F.3d 707 (6th Cir. 2010); United States v. Wenner, 351 F.3d 969 (9th Cir. 2003) with United States v. Ramirez, 708 F.3d 295, 301 (1st Cir. 2013); United States v. Murillo-Lopez, 444 F.3d 337, 340 (5th Cir. 2006); United States v. Rivera-Oros, 590 F.3d 1123 (10th Cir. 2009); United States v. McClenton, 53 F.3d 584 (3d Cir. 1995); United States v. Graham, 982 F.2d 315 (8th Cir. 1992).
Although âburglary of a dwellingâ is deleted as an enumerated offense, the amendment adds an upward departure provision to §4B1.2 to address the unusual case in which the instant offense or a prior felony conviction was any burglary offense involving violence that did not otherwise qualify as a âcrime of violence.â This departure provision allows courts to consider all burglary offenses, as opposed to just burglaries of a dwelling, and reflects the Commissionâs determination that courts should consider an upward departure where a defendant would have received a higher offense level, higher Criminal History Category, or both (e.g., where the defendant would have been a career offender) if such burglary had qualified as a âcrime of violence.â
Finally, the amendment adds offenses that involve the âuse or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or an explosive material as defined in 18 U.S.C. § 841(c)â to the enumerated list at §4B1.2(a)(2). This addition is consistent with long- standing commentary in §4B1.2 categorically identifying possession of a firearm described in 26 U.S.C. § 5845(a) as a âcrime of violence,â and therefore maintains the status quo. The Commission continues to believe that possession of these types of weapons (e.g., a sawed-off shotgun or sawed-off rifle, silencer, bomb, or machine gun) inherently presents a serious potential risk of physical injury to another person. Additionally, inclusion as an enumerated offense reflects Congressâs determination that such weapons are inherently dangerous and, when possessed unlawfully, serve only violent purposes. See also USSG App. C, amend. 674 (eff. Nov. 1, 2004) (expanding the definition of âcrime of violenceâ in Application Note 1 to §4B1.2 to include unlawful possession of any firearm described in 26 U.S.C. § 5845(a)).
Enumerated Offense Definitions
The amendment also adds definitions for the enumerated offenses of forcible sex offense and extortion. The amended guideline, however, continues to rely on existing case law for purposes of defining the remaining enumerated offenses. The Commission determined that adding several new definitions could result in new litigation, and that it was instead best not to disturb the case law that has developed over the years.
As amended, âforcible sex offenseâ includes offenses with an element that consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced. Consistent with the definition in §2L1. (Unlawfully Entering or Remaining in the United States), this addition reflects the Commissionâs determination that certain forcible sex offenses which do not expressly include as an element the use, attempted use, or threatened use of physical force against the person of another should nevertheless constitute âcrimes of violenceâ under §4B1.2. See also USSG App. C, amend. 722 (eff. Nov. 1, 2008) (clarifying the scope of the term âforcible sex offenseâ as that term is used in the definition of âcrime of violenceâ in §2L1.2, Application Note 1(B)(iii)).
The new commentary also provides that the offenses of sexual abuse of a minor and statutory rape are included only if the sexual abuse of a minor or statutory rape was (A) an offense described in 18 U.S.C. § 2241(c), or (B) an offense under state law that would have been an offense under section 2241(c) if the offense had occurred within the special maritime and territorial jurisdiction of the United States. This addition makes clear that the term âforcible sex offenseâ in §4B1.2 includes sexual abuse of a minor and statutory rape where certain specified elements are present.
âExtortionâ is defined as âobtaining something of value from another by the wrongful use of (i) force, (ii) fear of physical injury, or (iii) threat of physical injury.â Under case law existing at the time of this amendment, courts generally defined extortion as âobtaining something of value from another with his consent induced by the wrongful use of force, fear, or threatsâ based on the Supreme Courtâs holding in United States v. Nardello, 393 U.S. 286, 290 (1969) (defining âextortionâ for purposes of the Hobbs Act). Consistent with the Commissionâs goal of focusing the career offender and related enhancements on the most dangerous offenders, the amendment narrows the generic definition of extortion by limiting the offense to those having an element of force or an element of fear or threats âof physical injury,â as opposed to non-violent threats such as injury to reputation.
Departure Provision at §4B1.
Finally, the amendment adds a downward departure provision in §4B1.1 for cases in which one or both of the defendantâs âtwo prior felony convictionsâ is based on an offense that is classified as a misdemeanor at the time of sentencing for the instant federal offense.
An offense (whether a âcrime of violenceâ or a âcontrolled substance offenseâ) is deemed to be a âfelonyâ for purposes of the career offender guideline if it is punishable by imprisonment for a term exceeding one year. This definition captures some state offenses that are punishable by more than a year of imprisonment, but are in fact classified by the state as misdemeanors. Such statutes are found, for example, in Colorado, Iowa, Maryland, Massachusetts, Michigan, Pennsylvania, South Carolina, and Vermont.
