SYNOPSIS OF PROPOSED AMENDMENTS TO THE SENTENCING GUIDELINES
by Thomas W. Hutchison and Janet G. Hinton, FDTG

Edited (butchered) by David Beneman, Maine CJA Resource Counsel )who
takes the blame for anything that is wrong below, for the Guidelines
generally, and anything else).

Executive Summary, i.e.. it is late on Friday;
Proposed amendment 9 would allow 2 point reduction for Safety Valve
deleting the requirement that the offense level be at least 26.
Amendments 13 and 14 help defendants in some same economic crime cases.
Amendments 16 and 17 help on criminal history in a few cases.
Amendment 18 helps in some re-entry cases.
Amendment 20 helps in money laundering cases which should not be money
laundering to begin with.
All the other amendments are bad for defendants. Big surprise.
Carefully read over amendments 12 and 20 if you do any fraud and white
collar defense.

The Sentencing Commission has published two sets of proposed amendments
to the Guidelines Manual, totaling some 28 proposed amendments in all.
The first set of amendments was published in November, with public
comment due January 8, 2001. The second set, containing some 21
proposed amendments, has just been published. Four of these proposals
promulgate amendments under emergency-amendment authority. Comment upon
those proposals was due by February 5, 2001. Comment on the other 17
proposals is due March 26, but the Commission, to have time to consider
comments before its public hearing in mid-March, encourages the
submission of comments no later than March 9.

Anyone may submit comments. To comment or to read the full versions of
the proposed amendments go to: http://www.ussc.gov/whatnew.htm

If you are intensely interested in this stuff it is all at the USSC
website or write back and I can send you as an attachment the long
version of this summary which runs 14 pages in WordPerfect.

Enjoy the weekend. David Beneman

Proposed Amendment One (ecstasy)
Modify the drug equivalency table of §§ 2D1.1 to treat ecstasy like
heroin, i.e. one gram is equal to one kilogram of marijuana.

Proposed Amendment Two (amphetamine)
Amendment two sets forth two options, each of which treat amphetamine
the same as methamphetamine. Option one would amend the drug
equivalency table of §§ 2D1.1 to convert amphetamine to a marijuana
weight equivalency that is the same as for methamphetamine. Option two
would amend §§ 2D1.1 would achieve the same result, but do so by adding
entries for amphetamine in the drug quantity table.


Proposed Amendment Three (ephedrine, pseudoephedrine, and
phenylpropanolamine (PPA) and other List I chemicals)
Amendment three increases penalties for ephedrine, pseudoephedrine,
and PPA, by adding a new chemical table to §§ 2D1.11(d)(1) that ties the
base offense levels for offenses involving those substances to the base
offense level for methamphetamine (actual), assuming a 50 percent yield
from the chemicals. Would amend the drug equivalency tables of §§ 2D1.1
to set forth a drug conversion ratio for the chemicals. Would increase
the base offense level (from 30 to 32) for benzaldehyde, hydriodic acid,
methylamine, nitroethane, and norpseudoephedrine.

Proposed Amendment Four (human trafficking)
Amendment four would revise three guidelines and add a new guideline to
Chapter 4, part H, subpart 4 of the Guidelines Manual (peonage,
involuntary servitude, and slave trade). Amendment four would revise §§
2G1.1(b)(2) by adding an enhancement for victimizing children under the
age of 12 years (six or nine levels, amount to be decided), for
victimizing children 12 years old but not 14 years old (four or six
levels, amount to be decided), and for victimizing children 14 years old
but not 16 years old (two or three levels, amount to be decided).
Amendment four would also amend the commentary to §§ 2G1.1 to indicate
that an upward departure would be warranted if a substantially more than
a specified number of victims were involved. The numbers under
consideration are 6, 10, and 25. Amendment four would also revise §§
2G2.1 in the same way. The new guideline would have a base offense
level of four or six (amount to be decided) and two specific offense
characteristics. Subsection (b)(1) of the new guideline would call for
an enhancement if the offense involved serious bodily injury (four
levels) or bodily injury (two levels). Subsection (b)(2) would call for
a two-level enhancement if the defendant committed any part of the
instant offense after sustaining a civil or administrative adjudication
for similar misconduct.

Proposed Amendment Five (sexual predators)
Part A of amendment five sets forth four options to increase the
penalties for a defendant who engaged in a pattern of activity involving
the sexual abuse or exploitation of a minor. The Commission indicates
that it may adopt more than one of the options. Option one would add to
Chapter 4, part B of the Guidelines Manual (career offenders and
criminal livelihood) a new guideline whose goal is to ""incapacitate high
risk sex offenders who have an instant offense of conviction of sexual
abuse and a prior felony conviction for sexual abuse."" Option two would
also add a new guideline to Chapter 4, part B. The goal of that
guideline would be to require a sentence at or near the statutory
maximum for a defendant whose ""instant offense of conviction and prior
conviction involved direct sexual contact."" Option three would add to
§§§§ 2A3.1, 2A3.2, 2A3.3, and 2A3.4 an enhancement similar to that of §§
2G2.2(b)(4), which calls for a four-level enhancement if the defendant
engaged in a pattern of activity involving the sexual abuse or
exploitation of a minor. Option four would revise the commentary to §§§§
2A3.1, 2A3.2, 2A3.3, and 2A3.4 to add language indicating that an upward
departure would be warranted for repeated acts of sexual abuse of the
same

Part B of amendment five seeks to resolve a circuit split. Six
circuits hold that distribution of pornography counts involving
different children are not grouped under §§ 3D1.2(b) because each child
is a separate victim. One circuit holds that such counts are to be
grouped under §§ 3D1.2(b) because the primary harm of the offense is to
society at large. Part B sets forth two options to address the split.
Option one would call for grouping such counts under §§ 3D1.2(d). Option
two would prohibit any grouping of such counts under §§ 3D1.2.

Part C of amendment five would add to §§ 2A3.1 (criminal sexual abuse),
§§ 2A3.2 (criminal sexual abuse of a minor under the age of sixteen
years), and §§ 2A3.4 (abusive sexual contact) a two-level enhancement
that would apply if the offense involved incest. Part C would also
amend §§ 2A3.2 by (1) increasing the base offense level of subsection
(a)(1) from 18 to 21 and of subsection (a)(2) from 15 to 18; (2) adding
a new base offense level of 24 if the offense involved a violation of 18
U.S.C. ch. 117 and the commission, or attempted commission, of a sexual
act; (3) adding a new specific offense characteristic calling for a
six-level reduction if the new base offense level of 24 applies and
subsections (b)(1) through (b)(3) do not apply; and (4) adding new
commentary indicating that an upward departure would be warranted if
""the defendant''s criminal history includes a prior sentence for conduct
that is similar to the instant offense,"" or if the defendant committed
the criminal sexual act in furtherance of a commercial scheme.

Proposed Amendment Six (stalking and domestic violence)
Amendment six would increase the base offense level of §§ 2A6.2
(stalking or domestic violence) from 14 to 16 or 18 (level to be
decided).

Proposed Amendment Seven (repromulgation of emergency amendment
regarding enhanced penalties for amphetamine or methamphetamine
laboratory operators)
The emergency amendment, which took effect December 16, 2000 and has
been designated as amendment 608 in Appendix A of the Guidelines Manual,
added enhancements to §§§§ 2D1.1 and 2D1.10.

Proposed Amendment Eight (mandatory restitution for amphetamine and
methamphetamine offenses)
Amendment eight would amend the mandatory-restitution provision of
subsection (a) of §§ 5E1.1 (restitution) to include a reference to 21
U.S.C. §§ 853(q).

Proposed Amendment Nine (safety valve)
Amendment nine would delete from §§ 2D1.1(b)(5) the requirement that
the offense level be at least 26.

Proposed Amendment Ten (anhydrous ammonia)
Amendment ten addresses a new offense, 21 U.S.C. §§ 864 (stealing or
transporting across state lines anhydrous ammonia, having reasonable
cause to believe that it will be used to manufacture a controlled
substance). Amendment ten would amend Appendix A (statutory index) to
call for application of §§ 2D1.12 for an offense under section 864.

Proposed Amendment 11 (GHB)
Amendment 11 would amend the drug quantity table of §§ 2D1.1 to increase
from level 20 to level 38 the maximum base offense level possible for
Schedule I and II depressants, which include GHB. Amendment 11 would
also amend the chemical quantity table in §§ 2D1.11 to include GHB as a
List I chemical.

Proposed Amendment 12 (economic crime package)
Amendment 12 seeks increased punishment for white-collar offenses,
particularly fraud and tax offenses. Amendment 12 is complex,
containing six parts, with the parts containing options and options
within options.

Part A of amendment 12 would consolidate the theft, fraud, and property
destruction guidelines into a single new guideline (which replaces
current §§ 2B1.1). The new §§ 2B1.1 --
•• Has a base offense level of 6, the same as in the current fraud
guideline but two levels higher than the current theft and receiving
stolen property guidelines.
•• Deletes the more-than-minimal planning enhancements of §§
2B1.1(b)(4)(A,) §§ 2B1.3(b)(3), and §§ 2F1.1(b)(2)(A) due to ""the
potential overlap between this enhancement and the sophisticated means
enhancement.""
•• Continues the more-than-one-victim enhancement of §§ 2F1.1(b)(2)(B) in
modified form because ""(1) New §§ 2B1.1(b)(2) calls for a two-level
enhancement if there were more than four but less than 50 victims, and a
four-level enhancement if there were more than 50 victims.
•• Adds a two-level enhancement if the offense involved
misrepresentation to a consumer in connection with obtaining financial
assistance for an institution of higher education.
•• Modifies the risk-of-injury enhancement of current §§ 2F1.1(b)(7).
The modifications are (1) an increase in the floor from offense level 13
to offense level 14 and (2) making the enhancement applicable if the
risk created was a risk of death.
•• Contains three options for continuing the financial-institution
enhancement of §§ 2F1.1(b)(8).

Part B of amendment 12 sets forth three options for a loss table in new
§§ 2B1.1 and two options for a new loss table in §§ 2T4.1 (tax table).
All three options for §§ 2B1.1 change from a table using one-level
increments to a table using two-level increments.

Part C of amendment 12 sets forth two options to combine and revise the
current definitions of loss used for theft and fraud offenses. The
goals of part C include --
•• defining the key concepts, including ""actual loss,"" ""pecuniary harm,""
and ""intended loss"";
•• establishing a causation standard;
•• resolving a circuit split about intended loss that is unlikely or
impossible to occur;
•• identifying the time when loss is considered to have occurred;
•• spelling out whether, and to what extent, interest is a part of loss;

•• excluding from loss certain costs incurred by the government and
victims in connection with investigating and prosecuting the case;
•• excluding from loss certain economic benefits transferred to victims;

•• resolving a circuit split about transfer of certain benefits to
victims of investment fraud schemes (Ponzi schemes, e.g.);
•• identifying when gain can be used to measure the harm; and
•• clarifying commentary language concerning departures.

Part D would add a one-level enhancement if the amount involved is
more than $2,000 but not more than $5,000.


Proposed Amendment 13 (aggravating and mitigating factors in fraud and
theft cases)

Amendment 13 sets forth ""two options to provide for the consideration
of a number of aggravating and mitigating factors that may be present in
theft and fraud cases."" Option one would add a specific offense
characteristic requiring a two or four level increase if the offense
involved aggravating or significantly aggravating circumstances and a
two or four level reduction if the offense involved mitigating
circumstances or significantly mitigating circumstances. Option one
would add commentary stating that whether an offense involved
aggravating or mitigating circumstances is based on ""consideration of
the presence and intensity"" of certain factors. Aggravating factors
would include, for example, that the offense caused reasonably
foreseeable psychological harm. Mitigating factors would include, for
example, that the offense involved minimal or no planning.

Option two would add a specific offense characteristic calling for
either a two-level enhancement or a two-level reduction. The two-level
enhancement would apply if the offense involved ""(i) at least one
qualifying aggravating factor and no qualifying mitigating factors; or
(ii) one or more qualifying aggravating factors the seriousness of which
outweigh the mitigating effect of all qualifying mitigating factors
present in the offense."" The two-level reduction would apply if the
offense involved ""(i) at least one qualifying mitigating factor and no
qualifying aggravating factors; or (ii) one or more qualifying
mitigating factors the seriousness of which outweigh the mitigating
effect of all qualifying aggravating factors present in the offense.""

Proposed Amendment 14 (sentencing table amendment and alternative to
sentencing table amendment)
Amendment 14 has two parts. The first part would revise the sentencing
table by expanding zones B and C by two levels in criminal history
categories I and II. The second part is designated an alternative to
part one, and would add a new guideline providing for a two-level
reduction in the offense level for ""certain less serious economic
offenses."" The offense would include theft, fraud, money laundering,
and tax offenses and must not have involved bodily injury or a conscious
or reckless risk of serious bodily injury. To qualify for the
reduction, the defendant must have no criminal history points; must not
have used violence or threats of violence or possessed or used a
dangerous weapon; must not have received an enhancement under specified
provisions (e.g., under current §§ 2B1.1(b)(7), which applies if the
offense involved misappropriation of a trade secret and the defendant
knew or intended that the offense benefit a foreign government); and
must, before sentencing, (A) voluntarily make full restitution or notify
the government that the defendant agrees to make restitution as
determined by the court, or (B) fully cooperate with the government and
the court in determining the amount of the restitution and make partial
restitution to the extent able to do so.

Proposed Amendment 15 (firearms table)
Amendment 15, option one would revise the table in §§ 2K2.1(b)(1) to add
enhancements for 100-199 guns (seven levels) and 200 or more (eight
levels). Option two would convert the table to two-level increments,
with five categories -- 3-7 guns (two levels), 8-24 guns (four levels),
25-99 guns (six levels), 100-199 guns (eight levels), and 200 or more
guns (10 levels).

Proposed Amendment 16 (prohibited person definition)
Amendment 16 amends the definitions of the term ""prohibited person"" as
set forth in the commentary to §§§§ 2K1.3 and 2K2.1. The amendment
incorporates the statutory definition of that term applicable to the
offenses covered by those guidelines. In addition, amendment 16 would
amend those guidelines to specify that the defendant''s status as a
prohibited person is to be determined as of the time of the instant
offense, not the time of sentencing.

Proposed Amendment 17 (prior felonies)
Amendment 17 would amend §§§§ 2K1.3 and 2K2.1 to clarify the reference to
""prior"" felony conviction in §§ 2K1.3(a)(1) and (2) and §§ 2K2.1(a)(1),
(2), (3), and (4). Amendment 17 would amend the guidelines so the
instant offense must be committed after conviction for a qualifying
offense.

Proposed Amendment 18 (immigration)
Amendment 18 would amend the guideline for illegal reentry offenses, §§
2L1.2, to modify the 16-level, aggravated-felony enhancement of
subsection (b)(1)(A). As revised, the enhancement for a defendant
deported after conviction of an aggravated felony will be --
•• 16 levels if the defendant served a period of imprisonment of at
least 10 years;
•• 10 or 12 levels (to be decided) if the defendant served a period of
imprisonment of at least 5 but not more than 10 years;
•• 8 levels if the defendant served a period of imprisonment of at
least 2 but not more than 5 years; and
•• 6 levels if the defendant served a period of imprisonment of less
than 2 years or received a sentence of probation or other sentence
alternative to a term of imprisonment.

Amendment 18 also sets forth two options. Option one would add as an
additional basis for the 16-level enhancement a condition that the
aggravated felony involve death, serious bodily injury, the discharge or
otherwise use of a firearm or dangerous weapon, or a serious drug
trafficking offense (as that term is currently defined in commentary to
the aberrant behavior policy statement, §§ 5K2.20). Option two would add
commentary addressing departures. The commentary would indicate that an
upward departure may be warranted if the enhancement of (b)(1)
understates the seriousness of the aggravated felony, and cite as
examples of such understatement an aggravated felony involving serious
bodily injury, the discharge or otherwise use of a gun or dangerous
weapon, or a serious drug offense (as that term is currently defined in
§§ 5K2.20). Option two would also add commentary indicating that a
downward departure would be warranted if ""the defendant was not advised,
at the time the defendant previously was deported or removed, of the
criminal consequences of reentry after deportation or removal.""
Finally, amendment 18 invites comment on whether (1) the
aggravated-felony enhancement should be graduated based upon a factor
other than length of incarceration, and (2) there should be a staleness
factor for the aggravated felony.

Proposed Amendment 19 (nuclear, biological, and chemical weapons)
Amendment 19 deals with guidelines in Chapter 2, part M of the
Guidelines Manual (offenses involving national defense). (Who has ever
had one of these ?)

Proposed Amendment 20 (money laundering)
Amendment 20 would consolidate the money-laundering guidelines, §§§§
2S1.1 and 2S1.2. The purpose is to ""tie[] offense levels for money
laundering more closely to the underlying criminal conduct that was the
source of the criminally derived funds."" The new §§ 2S1.1 would have two
base offense levels, one for ""direct"" money launderers and one for
""third-party"" launderers. Under new §§ 2S1.1(a)(1), the base offense
level would be the offense level for the underlying offense that is the
source of the funds if (A) the defendant committed the offense or is
accountable for it under the relevant conduct rule of §§ 1B1.3(a)(1)(A);
and (B) the offense level for that offense can be determined. Under new
§§ 2S1.1(a)(2), the base offense level would be eight plus the number of
levels from the loss table in the fraud guideline that corresponds to
the value of the laundered funds. The base offense level under
subsection (a)(1) usually will be higher than the base offense level
under subsection (a)(2).

New §§ 2S1.1 would have at least two specific offense characteristics.
Subsection (b)(1) would require an enhancement of between two and six
levels (amount to be decided) if (A) the base offense level is set under
subsection (a)(2), and (B) the defendant knew or believed that any of
the laundered funds were proceeds or, or were intended to promote, (i)
an offense involving the manufacture, importation, or distribution of a
controlled substance or a listed chemical, (ii) a crime of violence (as
that term is defined for the purposes of the career offender guideline),
or (iii) an offense involving firearms, explosives, national security,
terrorism, or the sexual exploitation of a minor. Subsection (b)(2)
would call for an enhancement if (A) the defendant was in the business
of laundering funds (two to six levels, amount to be decided); (B) any
of the laundered funds were used to promote further criminal conduct
(two or three levels, amount to be determined); (C) the offense
involved significant concealment (two or three levels, amount to be
determined). An additional basis for subsection (b)(2) is set forth as
an option under consideration -- that the defendant is convicted under
specified provisions of 18 U.S.C. §§ 1956, or of conspiring or attempting
to violate one of the specified provisions.

Amendment 20 sets forth two other possible specific offense
characteristics as options under consideration. One option would call
for a one-level enhancement if subsection (a)(1) applies, subsection
(b)(2) does not apply, and the value of the laundered funds exceeds
$10,000. The other option would call for a two-level reduction if
subsection (a)(2) applies, the defendant is convicted under 18 U.S.C. §§
1957, and neither subsection (b)(1) nor (b)(2) apply.

Finally, amendment 20 sets forth two options for addressing the
situation where the offense level under the guideline using the base
offense level in subsection (a)(2) is greater than the offense level
that would result had the base offense level of subsection (a)(1) been
used. The first option would add commentary indicating that a downward
departure would be warranted. The second option would add commentary
providing that in such a circumstance the value of the laundered funds
is the lesser of the actual value of the laundered funds or the value of
the loss other monetary amount attributable to the underlying offense.

Proposed Amendment 21 (new legislation; technical amendments)
Amendment 21 amends the statutory index in Appendix A of the Guidelines
Manual to incorporate offenses enacted during the 106th Congress and
makes technical and conforming changes.

Hope you found this helpful.

David