§994. Duties of the Commission

(a) The Commission, by affirmative vote of at least four members of the Commission, and pursuant to its rules and regulations and consistent with all pertinent provisions of this title and title 18, United States Code, shall promulgate and distribute to all courts of the United States and to the United States Probation System-

(1) guidelines, as described in this section, for use of a sentencing court in determining the sentence to be imposed in a criminal case, including-

(A) a determination whether to impose a sentence to probation, a fine, or a term of imprisonment;

(B) a determination as to the appropriate amount of a fine or the appropriate length of a term of probation or a term of imprisonment;

(C) a determination whether a sentence to a term of imprisonment should include a requirement that the defendant be placed on a term of supervised release after imprisonment, and, if so, the appropriate length of such a term;

(D) a determination whether multiple sentences to terms of imprisonment should be ordered to run concurrently or consecutively; and

(E) a determination under paragraphs (6) and (11) of section 3563(b) of title 18;

(2) general policy statements regarding application of the guidelines or any other aspect of sentencing or sentence implementation that in the view of the Commission would further the purposes set forth in section 3553(a)(2) of title 18, United States Code, including the appropriate use of-

(A) the sanctions set forth in sections 3554, 3555, and 3556 of title 18;

(B) the conditions of probation and supervised release set forth in sections 3563(b) and 3583(d) of title 18;

(C) the sentence modification provisions set forth in sections 3563(c), 3564, 3573, and 3582(c) of title 18;

(D) the fine imposition provisions set forth in section 3572 of title 18;

(E) the authority granted under rule 11(e)(2) of the Federal Rules of Criminal Procedure to accept or reject a plea agreement entered into pursuant to rule 11(e)(1); and

(F) the temporary release provisions set forth in section 3622 of title 18, and the prerelease custody provisions set forth in section 3624(c) of title 18; and

(3) guidelines or general policy statements regarding the appropriate use of the provisions for revocation of probation set forth in section 3565 of title 18, and the provisions for modification of the term or conditions of supervised release and revocation of supervised release set forth in section 3583(e) of title 18.

(b)(1) The Commission, in the guidelines promulgated pursuant to subsection (a)(1), shall, for each category of offense involving each category of defendant, establish a sentencing range that is consistent with all pertinent provisions of title 18, United States Code.

(2) If a sentence specified by the guidelines includes a term of imprisonment, the maximum of the range established for such a term shall not exceed the minimum of that range by more than the greater of 25 percent or 6 months, except that, if the minimum term of the range is 30 years or more, the maximum may be life imprisonment.

(c) The Commission, in establishing categories of offenses for use in the guidelines and policy statements governing the imposition of sentences of probation, a fine, or imprisonment, governing the imposition of other authorized sanctions, governing the size of a fine or the length of a term of probation, imprisonment, or supervised release, and governing the conditions of probation, supervised release, or imprisonment, shall consider whether the following matters, among others, have any relevance to the nature, extent, place of service, or other incidents ¹ of an appropriate sentence, and shall take them into account only to the extent that they do have relevance-

(1) the grade of the offense;

(2) the circumstances under which the offense was committed which mitigate or aggravate the seriousness of the offense;

(3) the nature and degree of the harm caused by the offense, including whether it involved property, irreplaceable property, a person, a number of persons, or a breach of public trust;

(4) the community view of the gravity of the offense;

(5) the public concern generated by the offense;

(6) the deterrent effect a particular sentence may have on the commission of the offense by others; and

(7) the current incidence of the offense in the community and in the Nation as a whole.

(d) The Commission in establishing categories of defendants for use in the guidelines and policy statements governing the imposition of sentences of probation, a fine, or imprisonment, governing the imposition of other authorized sanctions, governing the size of a fine or the length of a term of probation, imprisonment, or supervised release, and governing the conditions of probation, supervised release, or imprisonment, shall consider whether the following matters, among others, with respect to a defendant, have any relevance to the nature, extent, place of service, or other incidents ¹ of an appropriate sentence, and shall take them into account only to the extent that they do have relevance-

(1) age;

(2) education;

(3) vocational skills;

(4) mental and emotional condition to the extent that such condition mitigates the defendant's culpability or to the extent that such condition is otherwise plainly relevant;

(5) physical condition, including drug dependence;

(6) previous employment record;

(7) family ties and responsibilities;

(8) community ties;

(9) role in the offense;

(10) criminal history; and

(11) degree of dependence upon criminal activity for a livelihood.

The Commission shall assure that the guidelines and policy statements are entirely neutral as to the race, sex, national origin, creed, and socioeconomic status of offenders.

(e) The Commission shall assure that the guidelines and policy statements, in recommending a term of imprisonment or length of a term of imprisonment, reflect the general inappropriateness of considering the education, vocational skills, employment record, family ties and responsibilities, and community ties of the defendant.

(f) The Commission, in promulgating guidelines pursuant to subsection (a)(1), shall promote the purposes set forth in section 991(b)(1), with particular attention to the requirements of subsection 991(b)(1)(B) for providing certainty and fairness in sentencing and reducing unwarranted sentence disparities.

(g) The Commission, in promulgating guidelines pursuant to subsection (a)(1) to meet the purposes of sentencing as set forth in section 3553(a)(2) of title 18, United States Code, shall take into account the nature and capacity of the penal, correctional, and other facilities and services available, and shall make recommendations concerning any change or expansion in the nature or capacity of such facilities and services that might become necessary as a result of the guidelines promulgated pursuant to the provisions of this chapter. The sentencing guidelines prescribed under this chapter shall be formulated to minimize the likelihood that the Federal prison population will exceed the capacity of the Federal prisons, as determined by the Commission.

(h) The Commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for categories of defendants in which the defendant is eighteen years old or older and-

(1) has been convicted of a felony that is-

(A) a crime of violence; or

(B) an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, and 959), and the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.); and

(2) has previously been convicted of two or more prior felonies, each of which is-

(A) a crime of violence; or

(B) an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, and 959), and the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.).

(i) The Commission shall assure that the guidelines specify a sentence to a substantial term of imprisonment for categories of defendants in which the defendant-

(1) has a history of two or more prior Federal, State, or local felony convictions for offenses committed on different occasions;

(2) committed the offense as part of a pattern of criminal conduct from which the defendant derived a substantial portion of the defendant's income;

(3) committed the offense in furtherance of a conspiracy with three or more persons engaging in a pattern of racketeering activity in which the defendant participated in a managerial or supervisory capacity;

(4) committed a crime of violence that constitutes a felony while on release pending trial, sentence, or appeal from a Federal, State, or local felony for which he was ultimately convicted; or

(5) committed a felony that is set forth in section 401 or 1010 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 841 and 960), and that involved trafficking in a substantial quantity of a controlled substance.

(j) The Commission shall insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense, and the general appropriateness of imposing a term of imprisonment on a person convicted of a crime of violence that results in serious bodily injury.

(k) The Commission shall insure that the guidelines reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing the defendant with needed educational or vocational training, medical care, or other correctional treatment.

(l) The Commission shall insure that the guidelines promulgated pursuant to subsection (a)(1) reflect-

(1) the appropriateness of imposing an incremental penalty for each offense in a case in which a defendant is convicted of-

(A) multiple offenses committed in the same course of conduct that result in the exercise of ancillary jurisdiction over one or more of the offenses; and

(B) multiple offenses committed at different times, including those cases in which the subsequent offense is a violation of section 3146 (penalty for failure to appear) or is committed while the person is released pursuant to the provisions of section 3147 (penalty for an offense committed while on release) of title 18; and

(2) the general inappropriateness of imposing consecutive terms of imprisonment for an offense of conspiring to commit an offense or soliciting commission of an offense and for an offense that was the sole object of the conspiracy or solicitation.

(m) The Commission shall insure that the guidelines reflect the fact that, in many cases, current sentences do not accurately reflect the seriousness of the offense. This will require that, as a starting point in its development of the initial sets of guidelines for particular categories of cases, the Commission ascertain the average sentences imposed in such categories of cases prior to the creation of the Commission, and in cases involving sentences to terms of imprisonment, the length of such terms actually served. The Commission shall not be bound by such average sentences, and shall independently develop a sentencing range that is consistent with the purposes of sentencing described in section 3553(a)(2) of title 18, United States Code.

(n) The Commission shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by statute as a minimum sentence, to take into account a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense.

(o) The Commission periodically shall review and revise, in consideration of comments and data coming to its attention, the guidelines promulgated pursuant to the provisions of this section. In fulfilling its duties and in exercising its powers, the Commission shall consult with authorities on, and individual and institutional representatives of, various aspects of the Federal criminal justice system. The United States Probation System, the Bureau of Prisons, the Judicial Conference of the United States, the Criminal Division of the United States Department of Justice, and a representative of the Federal Public Defenders shall submit to the Commission any observations, comments, or questions pertinent to the work of the Commission whenever they believe such communication would be useful, and shall, at least annually, submit to the Commission a written report commenting on the operation of the Commission's guidelines, suggesting changes in the guidelines that appear to be warranted, and otherwise assessing the Commission's work.

(p) The Commission, at or after the beginning of a regular session of Congress, but not later than the first day of May, may promulgate under subsection (a) of this section and submit to Congress amendments to the guidelines and modifications to previously submitted amendments that have not taken effect, including modifications to the effective dates of such amendments. Such an amendment or modification shall be accompanied by a statement of the reasons therefor and shall take effect on a date specified by the Commission, which shall be no earlier than 180 days after being so submitted and no later than the first day of November of the calendar year in which the amendment or modification is submitted, except to the extent that the effective date is revised or the amendment is otherwise modified or disapproved by Act of Congress.

(q) The Commission and the Bureau of Prisons shall submit to Congress an analysis and recommendations concerning maximum utilization of resources to deal effectively with the Federal prison population. Such report shall be based upon consideration of a variety of alternatives, including-

(1) modernization of existing facilities;

(2) inmate classification and periodic review of such classification for use in placing inmates in the least restrictive facility necessary to ensure adequate security; and

(3) use of existing Federal facilities, such as those currently within military jurisdiction.

(r) The Commission, not later than two years after the initial set of sentencing guidelines promulgated under subsection (a) goes into effect, and thereafter whenever it finds it advisable, shall recommend to the Congress that it raise or lower the grades, or otherwise modify the maximum penalties, of those offenses for which such an adjustment appears appropriate.

(s) The Commission shall give due consideration to any petition filed by a defendant requesting modification of the guidelines utilized in the sentencing of such defendant, on the basis of changed circumstances unrelated to the defendant, including changes in-

(1) the community view of the gravity of the offense;

(2) the public concern generated by the offense; and

(3) the deterrent effect particular sentences may have on the commission of the offense by others.

(t) The Commission, in promulgating general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A) of title 18, shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples. Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.

(u) 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.

(v) The Commission shall ensure that the general policy statements promulgated pursuant to subsection (a)(2) include a policy limiting consecutive terms of imprisonment for an offense involving a violation of a general prohibition and for an offense involving a violation of a specific prohibition encompassed within the general prohibition.

(w) The appropriate judge or officer shall submit to the Commission in connection with each sentence imposed (other than a sentence imposed for a petty offense, as defined in title 18, for which there is no applicable sentencing guideline) a written report of the sentence, the offense for which it is imposed, the age, race, and sex of the offender, information regarding factors made relevant by the guidelines, and such other information as the Commission finds appropriate. The Commission shall submit to Congress at least annually an analysis of these reports and any recommendations for legislation that the Commission concludes is warranted by that analysis.

(x) The provisions of section 553 of title 5, relating to publication in the Federal Register and public hearing procedure, shall apply to the promulgation of guidelines pursuant to this section.

(y) The Commission, in promulgating guidelines pursuant to subsection (a)(1), may include, as a component of a fine, the expected costs to the Government of any imprisonment, supervised release, or probation sentence that is ordered.

(Added Pub. L. 98–473, title II, §217(a), Oct. 12, 1984, 98 Stat. 2019 ; amended Pub. L. 99–217, §3, Dec. 26, 1985, 99 Stat. 1728 ; Pub. L. 99–363, §2, July 11, 1986, 100 Stat. 770 ; Pub. L. 99–570, title I, §§1006(b), 1008, Oct. 27, 1986, 100 Stat. 3207–7 ; Pub. L. 99–646, §§6(b), 56, Nov. 10, 1986, 100 Stat. 3592 , 3611; Pub. L. 100–182, §§16(b), 23, Dec. 7, 1987, 101 Stat. 1269 , 1271; Pub. L. 100–690, title VII, §§7083, 7103(b), 7109, Nov. 18, 1988, 102 Stat. 4408 , 4417, 4419; Pub. L. 103–322, title II, §20403(b), title XXVIII, §280005(c)(4), title XXXIII, §330003(f)(1), Sept. 13, 1994, 108 Stat. 1825 , 2097, 2141.)

References in Text

The Federal Rules of Criminal Procedure, referred to in subsec. (a)(2)(E), are set out in the Appendix to Title 18, Crimes and Criminal Procedure.

The Maritime Drug Law Enforcement Act, referred to in subsec. (h)(1)(B), (2)(B), is Pub. L. 96–350, Sept. 15, 1980, 94 Stat. 1159 , as amended, which is classified generally to chapter 38 (§1901 et seq.) of Title 46, Appendix, Shipping. For complete classification of this Act to the Code, see section 1901 of Title 46, Appendix, and Tables.

Amendments

1994-Subsec. (h)(1)(B), (2)(B). Pub. L. 103–322, §330003(f)(1), substituted "the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.)" for "section 1 of the Act of September 15, 1980 (21 U.S.C. 955a)".

Subsec. (i)(2). Pub. L. 103–322, §280005(c)(4), substituted "the defendant" for "he" and "the defendant's" for "his".

Subsec. (y). Pub. L. 103–322, §20403(b), added subsec. (y).

1988-Subsec. (a)(1)(E). Pub. L. 100–690, §7103(b), added subpar. (E).

Subsec. (n). Pub. L. 100–690, §7083, substituted "as a minimum sentence" for "as minimum sentence".

Subsec. (p). Pub. L. 100–690, §7109, amended subsec. (p) generally. Prior to amendment, subsec. (p) read as follows: "The Commission, at or after the beginning of a regular session of Congress but not later than the first day of May, shall report to the Congress any amendments of the guidelines promulgated pursuant to subsection (a)(1), and a report of the reasons therefor, and the amended guidelines shall take effect one hundred and eighty days after the Commission reports them, except to the extent the effective date is enlarged or the guidelines are disapproved or modified by Act of Congress."

1987-Subsec. (r). Pub. L. 100–182, §23(a), substituted "two years" for "one year".

Subsec. (s). Pub. L. 100–182, §23(b), struck out at end: "Within one hundred and eighty days of the filing of such petition the Commission shall provide written notice to the defendant whether or not it has approved the petition. If the petition is disapproved the written notice shall contain the reasons for such disapproval. The Commission shall submit to the Congress at least annually an analysis of such written notices."

Subsec. (w). Pub. L. 100–182, §16(b), inserted "(other than a sentence imposed for a petty offense, as defined in title 18, for which there is no applicable sentencing guideline)" after "each sentence imposed".

1986-Subsec. (a)(2)(C). Pub. L. 99–363, §2(1)(B), amended subpar. (C) generally, inserting "3564," after "3563(c),".

Subsec. (a)(2)(D) to (F). Pub. L. 99–363, §2(1)(A), (C), added subpar. (D) and redesignated former subpars. (D) and (E) as (E) and (F), respectively.

Subsec. (a)(3). Pub. L. 99–570, §1006(b), inserted "and revocation of supervised release" after "supervised release".

Pub. L. 99–363, §2(2), amended par. (3) generally. Prior to amendment, par. (3) read as follows: "guidelines or general policy statements regarding the appropriate use of the probation revocation provisions set forth in section 3565 of title 18, and the provisions for modification of the term or conditions of probation or supervised release set forth in sections 3563(c), 3564(d), and 3583(e) of title 18."

Subsec. (b). Pub. L. 99–363, §2(3), designated existing provisions as pars. (1) and (2), and in par. (2) substituted "the greater of 25 percent or 6 months, except that, if the maximum term of the range is 30 years or more, the maximum may be life imprisonment" for "25 per centum".

Subsec. (b)(2). Pub. L. 99–646, §56, substituted "that, if the minimum" for "that, if the maximum".

Subsec. (h). Pub. L. 99–646, §6(b)(1), (2), substituted "guidelines specify" for "guidelines will specify" and struck out "by section 3581(b) of title 18, United States Code," after "term authorized" in introductory text.

Subsec. (i). Pub. L. 99–646, §6(b)(2), substituted "guidelines specify" for "guidelines will specify".

Subsecs. (n) to (t). Pub. L. 99–570, §1008(1), (2), added subsec. (n) and redesignated former subsecs. (n) to (t) as (o) to (u), respectively.

Subsec. (u). Pub. L. 99–646, §6(b)(3), which directed that subsec. (t) be amended by inserting "in what circumstances and" after "specify" and striking out "that are outside the applicable guideline ranges" after "terms of imprisonment", was executed to subsec. (u) to reflect the probable intent of Congress and the intervening redesignation of subsec. (t) as (u) by Pub. L. 99–570.

Pub. L. 99–570, §1008(2), redesignated subsec. (t) as (u).

Subsecs. (v) to (x). Pub. L. 99–570, §1008(2), redesignated former subsecs. (u) to (w) as (v) to (x), respectively.

1985-Subsec. (q). Pub. L. 99–217 substituted "not later than one year after the initial set of sentencing guidelines promulgated under subsection (a) goes into effect" for "within three years of the date of enactment of the Sentencing Reform Act of 1983".

Effective Date of 1987 Amendment

Amendment by Pub. L. 100–182 applicable with respect to offenses committed after Dec. 7, 1987, see section 26 of Pub. L. 100–182, set out as a note under section 3006A of Title 18, Crimes and Criminal Procedure.

Enhanced Penalties for Repeat Sex Offenders

Section 40111(b) of Pub. L. 103–322 provided that: "The Sentencing Commission shall implement the amendment made by subsection (a) [enacting section 2247 of Title 18, Crimes and Criminal Procedure] by promulgating amendments, if appropriate, in the sentencing guidelines applicable to chapter 109A [of Title 18] offenses."

Aggravated Sexual Abuse or Sexual Abuse; Sentencing Guidelines; Report on Federal Rape Sentencing

Section 40112 of Pub. L. 103–322 provided that:

"(a) Amendment of Sentencing Guidelines.-Pursuant to its authority under section 994(p) of title 28, United States Code, the United States Sentencing Commission shall review and amend, where necessary, its sentencing guidelines on aggravated sexual abuse under section 2241 of title 18, United States Code, or sexual abuse under section 2242 of title 18, United States Code, as follows:

"(1) The Commission shall review and promulgate amendments to the guidelines, if appropriate, to enhance penalties if more than 1 offender is involved in the offense.

"(2) The Commission shall review and promulgate amendments to the guidelines, if appropriate, to reduce unwarranted disparities between the sentences for sex offenders who are known to the victim and sentences for sex offenders who are not known to the victim.

"(3) The Commission shall review and promulgate amendments to the guidelines to enhance penalties, if appropriate, to render Federal penalties on Federal territory commensurate with penalties for similar offenses in the States.

"(4) The Commission shall review and promulgate amendments to the guidelines, if appropriate, to account for the general problem of recidivism in cases of sex offenses, the severity of the offense, and its devastating effects on survivors.

"(b) Report.-Not later than 180 days after the date of enactment of this Act [Sept. 13, 1994], the United States Sentencing Commission shall review and submit to Congress a report containing an analysis of Federal rape sentencing, accompanied by comment from independent experts in the field, describing-

"(1) comparative Federal sentences for cases in which the rape victim is known to the defendant and cases in which the rape victim is not known to the defendant;

"(2) comparative Federal sentences for cases on Federal territory and sentences in surrounding States; and

"(3) an analysis of the effect of rape sentences on populations residing primarily on Federal territory relative to the impact of other Federal offenses in which the existence of Federal jurisdiction depends upon the offense's being committed on Federal territory."

Applicability of Mandatory Minimum Penalties in Certain Cases; Sentencing Commission Authority

Section 80001(b) of Pub. L. 103–322 provided that:

"(1) In general.-(A) The United States Sentencing Commission (referred to in this subsection as the 'Commission'), under section 994(a)(1) and (p) of title 28-

"(i) shall promulgate guidelines, or amendments to guidelines, to carry out the purposes of this section [amending section 3553 of Title 18, Crimes and Criminal Procedure, and enacting provisions set out as a note under section 3553 of Title 18] and the amendment made by this section; and

"(ii) may promulgate policy statements, or amendments to policy statements, to assist in the application of this section and that amendment.

"(B) In the case of a defendant for whom the statutorily required minimum sentence is 5 years, such guidelines and amendments to guidelines issued under subparagraph (A) shall call for a guideline range in which the lowest term of imprisonment is at least 24 months.

"(2) Procedures.-If the Commission determines that it is necessary to do so in order that the amendments made under paragraph (1) may take effect on the effective date of the amendment made by subsection (a) [see Effective Date of 1994 Amendment note set out under section 3553 of Title 18], the Commission may promulgate the amendments made under paragraph (1) in accordance with the procedures set forth in section 21(a) of the Sentencing Act of 1987 [Pub. L. 100–182, set out below], as though the authority under that section had not expired."

Enhanced Penalty for Use of Semiautomatic Firearm During Crime of Violence or Drug Trafficking Crime

Section 110501 of Pub. L. 103–322 provided that:

"(a) Amendment to Sentencing Guidelines.-Pursuant to its authority under section 994 of title 28, United States Code, the United States Sentencing Commission shall amend its sentencing guidelines to provide an appropriate enhancement of the punishment for a crime of violence (as defined in section 924(c)(3) of title 18, United States Code) or a drug trafficking crime (as defined in section 924(c)(2) of title 18, United States Code) if a semiautomatic firearm is involved.

"(b) Semiautomatic Firearm.-In subsection (a), 'semiautomatic firearm' means any repeating firearm that utilizes a portion of the energy of a firing cartridge to extract the fired cartridge case and chamber the next round and that requires a separate pull of the trigger to fire each cartridge."

Enhanced Penalty for Second Offense of Using Explosive To Commit Felony

Section 110502 of Pub. L. 103–322 provided that: "Pursuant to its authority under section 994 of title 28, United States Code, the United States Sentencing Commission shall promulgate amendments to the sentencing guidelines to appropriately enhance penalties in a case in which a defendant convicted under section 844(h) of title 18, United States Code, has previously been convicted under that section."

Enhanced Penalty for Using Firearm in Commission of Counterfeiting or Forgery

Section 110512 of Pub. L. 103–322 provided that: "Pursuant to its authority under section 994 of title 28, United States Code, the United States Sentencing Commission shall amend its sentencing guidelines to provide an appropriate enhancement of the punishment for a defendant convicted of a felony under chapter 25 of title 18, United States Code, if the defendant used or carried a firearm (as defined in section 921(a)(3) of title 18, United States Code) during and in relation to the felony."

Enhanced Penalties for Firearms Possession by Violent Felons and Serious Drug Offenders

Section 110513 of Pub. L. 103–322 provided that: "Pursuant to its authority under section 994 of title 28, United States Code, the United States Sentencing Commission shall amend its sentencing guidelines to-

"(1) appropriately enhance penalties in cases in which a defendant convicted under section 922(g) of title 18, United States Code, has 1 prior conviction by any court referred to in section 922(g)(1) of title 18 for a violent felony (as defined in section 924(e)(2)(B) of that title) or a serious drug offense (as defined in section 924(e)(2)(A) of that title); and

"(2) appropriately enhance penalties in cases in which such a defendant has 2 prior convictions for a violent felony (as so defined) or a serious drug offense (as so defined)."

Enhanced Penalties for Felonies Promoting International Terrorism

Section 120004 of Pub. L. 103–322 provided that: "The United States Sentencing Commission is directed to amend its sentencing guidelines to provide an appropriate enhancement for any felony, whether committed within or outside the United States, that involves or is intended to promote international terrorism, unless such involvement or intent is itself an element of the crime."

Enhanced Penalty for Solicitation of Minor To Commit Crime

Section 140008 of Pub. L. 103–322 provided that:

"(a) Directive to Sentencing Commission.-(1) The United States Sentencing Commission shall promulgate guidelines or amend existing guidelines to provide that a defendant 21 years of age or older who has been convicted of an offense shall receive an appropriate sentence enhancement if the defendant involved a minor in the commission of the offense.

"(2) The Commission shall provide that the guideline enhancement promulgated pursuant to paragraph (1) shall apply for any offense in relation to which the defendant has solicited, procured, recruited, counseled, encouraged, trained, directed, commanded, intimidated, or otherwise used or attempted to use any person less than 18 years of age with the intent that the minor would commit a Federal offense.

"(b) Relevant Considerations.-In implementing the directive in subsection (a), the Sentencing Commission shall consider-

"(1) the severity of the crime that the defendant intended the minor to commit;

"(2) the number of minors that the defendant used or attempted to use in relation to the offense;

"(3) the fact that involving a minor in a crime of violence is frequently of even greater seriousness than involving a minor in a drug trafficking offense, for which the guidelines already provide a two-level enhancement; and

"(4) the possible relevance of the proximity in age between the offender and the minor(s) involved in the offense."

Enhanced Penalty for Possession or Distribution of Drugs at Truck Stops or Safety Rest Areas

Section 180201(c) of Pub. L. 103–322 provided that: "Pursuant to its authority under section 994 of title 28, United States Code, and section 21 of the Sentencing Act of 1987 [Pub. L. 100–182] (28 U.S.C. 994 note), the United States Sentencing Commission shall promulgate guidelines, or shall amend existing guidelines, to provide an appropriate enhancement of punishment for a defendant convicted of violating section 409 of the Controlled Substances Act [21 U.S.C. 849], as added by subsection (b)."

Crimes Against the Elderly; Sentencing Guidelines

Section 240002 of Pub. L. 103–322 provided that:

"(a) In General.-Pursuant to its authority under the Sentencing Reform Act of 1984 [chapter II (§§211–239) of title II) of Pub. L. 98–473, see Short Title note set out under section 3551 of Title 18, Crimes and Criminal Procedure] and section 21 of the Sentencing Act of 1987 [Pub. L. 100–182, set out below] (including its authority to amend the sentencing guidelines and policy statements) and its authority to make such amendments on an emergency basis, the United States Sentencing Commission shall ensure that the applicable guideline range for a defendant convicted of a crime of violence against an elderly victim is sufficiently stringent to deter such a crime, to protect the public from additional crimes of such a defendant, and to adequately reflect the heinous nature of such an offense.

"(b) Criteria.-In carrying out subsection (a), the United States Sentencing Commission shall ensure that-

"(1) the guidelines provide for increasingly severe punishment for a defendant commensurate with the degree of physical harm caused to the elderly victim;

"(2) the guidelines take appropriate account of the vulnerability of the victim; and

"(3) the guidelines provide enhanced punishment for a defendant convicted of a crime of violence against an elderly victim who has previously been convicted of a crime of violence against an elderly victim, regardless of whether the conviction occurred in Federal or State court.

"(c) Definitions.-In this section-

" 'crime of violence' means an offense under section 113, 114, 1111, 1112, 1113, 1117, 2241, 2242, or 2244 of title 18, United States Code.

" 'elderly victim' means a victim who is 65 years of age or older at the time of an offense."

Enhanced Penalties for Fraud Against Older Victims; Report to Congress

Section 250003 of Pub. L. 103–322 provided that:

"(a) Review.-The United States Sentencing Commission shall review and, if necessary, amend the sentencing guidelines to ensure that victim related adjustments for fraud offenses against older victims over the age of 55 are adequate.

"(b) Report.-Not later than 180 days after the date of enactment of this Act [Sept. 13, 1994], the Sentencing Commission shall report to Congress the result of its review under subsection (a)."

Enhanced Penalty for Hate Crimes

Section 280003 of Pub. L. 103–322 provided that:

"(a) Definition.-In this section, 'hate crime' means a crime in which the defendant intentionally selects a victim, or in the case of a property crime, the property that is the object of the crime, because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person.

"(b) Sentencing Enhancement.-Pursuant to section 994 of title 28, United States Code, the United States Sentencing Commission shall promulgate guidelines or amend existing guidelines to provide sentencing enhancements of not less than 3 offense levels for offenses that the finder of fact at trial determines beyond a reasonable doubt are hate crimes. In carrying out this section, the United States Sentencing Commission shall ensure that there is reasonable consistency with other guidelines, avoid duplicative punishments for substantially the same offense, and take into account any mitigating circumstances that might justify exceptions."

Sexual Abuse and Exploitation of Minors; Amendment of Sentencing Guidelines

Pub. L. 102–141, title VI, §632, Oct. 28, 1991, 105 Stat. 876 , provided that:

"(1) Pursuant to its authority under section 994 of title 28, United States Code, the Sentencing Commission shall promulgate guidelines, or amend existing or proposed guidelines as follows:

"(A) Guideline 2G2.2 to provide a base offense level of not less than 15 and to provide at least a 5 level increase for offenders who have engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.

"(B) Guideline 2G2.4 to provide that such guideline shall apply only to offense conduct that involves the simple possession of materials proscribed by chapter 110 of title 18, United States Code and guideline 2G2.2 to provide that such guideline shall apply to offense conduct that involves receipt or trafficking (including, but not limited to transportation, distribution, or shipping).

"(C) Guideline 2G2.4 to provide a base offense level of not less than 13, and to provide at least a 2 level increase for possessing 10 or more books, magazines, periodicals, films, video tapes or other items containing a visual depiction involving the sexual exploitation of a minor.

"(D) Section 2G3.1 to provide a base offense level of not less than 10.

"(2)(A) Notwithstanding any other provision of law, the Sentencing Commission shall promulgate the amendments mandated in subsection (1) by November 1, 1991, or within 30 days after enactment [Oct. 28, 1991], whichever is later. The amendments to the guidelines promulgated under subsection (1) shall take effect November 1, 1991, or 30 days after enactment, and shall supersede any amendment to the contrary contained in the amendments to the sentencing guidelines submitted to the Congress by the Sentencing Commission on or about May 1, 1991.

"(B) The provisions of section 944(x) [994(x)] of title 28, United States Code, shall not apply to the promulgation or amendment of guidelines under this section."

Increased Penalties in Major Bank Crime Cases

Pub. L. 101–647, title XXV, §2507, Nov. 29, 1990, 104 Stat. 4862 , provided that:

"(a) Increased Penalties.-Pursuant to section 994 of title 28, United States Code, and section 21 of the Sentencing Act of 1987 [Pub. L. 100–182, set out below], the United States Sentencing Commission shall promulgate guidelines, or amend existing guidelines, to provide that a defendant convicted of violating, or conspiring to violate, section 215, 656, 657, 1005, 1006, 1007, 1014, 1032, or 1344 of title 18, United States Code, or section 1341 or 1343 affecting a financial institution (as defined in section 20 of title 18, United States Code), shall be assigned not less than offense level 24 under chapter 2 of the sentencing guidelines if the defendant derives more than $1,000,000 in gross receipts from the offense.

"(b) Amendments to Sentencing Guidelines.-If the sentencing guidelines are amended after the effective date of this section [Nov. 29, 1990], the Sentencing Commission shall implement the instruction set forth in subsection (a) so as to achieve a comparable result."

Guidelines Relating to Methamphetamine Offenses

Pub. L. 101–647, title XXVII, §2701, Nov. 29, 1990, 104 Stat. 4912 , provided that: "The United States Sentencing Commission is instructed to amend the existing guidelines for offenses involving smokable crystal methamphetamine under section 401(b) of the Controlled Substances Act (21 U.S.C. 841(b)) so that convictions for offenses involving smokable crystal methamphetamine will be assigned an offense level under the guidelines which is two levels above that which would have been assigned to the same offense involving other forms of methamphetamine."

Guidelines Relating to Offenses Substantially Jeopardizing Safety and Soundness of Federally Insured Financial Institutions

Pub. L. 101–73, title IX, §961(m), Aug. 9, 1989, 103 Stat. 501 , provided that: "Pursuant to section 994 of title 28, United States Code, and section 21 of the Sentencing Act of 1987 [Pub. L. 100–182, set out below], the United States Sentencing Commission shall promulgate guidelines, or amend existing guidelines, to provide for a substantial period of incarceration for a violation of, or a conspiracy to violate, section 215, 656, 657, 1005, 1006, 1007, 1014, 1341, 1343, or 1344 of title 18, United States Code, that substantially jeopardizes the safety and soundness of a federally insured financial institution."

Penalties for Importation of Controlled Substances by Aircraft and Other Vessels

Section 6453 of Pub. L. 100–690 provided that:

"(a) In General.-Pursuant to its authority under section 994(p) of title 28, United States Code, and section 21 of the Sentencing Act of 1987 [Pub. L. 100–182, set out below], the United States Sentencing Commission shall promulgate guidelines, or shall amend existing guidelines, to provide that a defendant convicted of violating section 1010(a) of the Controlled Substances Import and Export Act (21 U.S.C. 960(a)) under circumstances in which-

"(1) an aircraft other than a regularly scheduled commercial air carrier was used to import the controlled substance; or

"(2) the defendant acted as a pilot, copilot, captain, navigator, flight officer, or any other operation officer aboard any craft or vessel carrying a controlled substance,

shall be assigned an offense level under chapter 2 of the sentencing guidelines that is-

"(A) two levels greater than the level that would have been assigned had the offense not been committed under circumstances set forth in (A) or (B) [(1) or (2)] above; and

"(B) in no event less than level 26.

"(b) Effect of Amendment.-If the sentencing guidelines are amended after the effective date of this section [Nov. 18, 1988], the Sentencing Commission shall implement the instruction set forth in subsection (a) so as to achieve a comparable result."

Enhanced Penalties for Offenses Involving Children

Pub. L. 101–647, title III, §321, Nov. 29, 1990, 104 Stat. 4817 , provided that: "The United States Sentencing Commission shall amend existing guidelines for sentences involving sexual crimes against children, including offenses contained in chapter 109A of title 18, so that more substantial penalties may be imposed if the Commission determines current penalties are inadequate."

Section 6454 of Pub. L. 100–690 provided that:

"(a) In General.-Pursuant to its authority under section 994(p) of title 28, United States Code, and section 21 of the Sentencing Act of 1987 [Pub. L. 100–182, set out below], the United States Sentencing Commission shall promulgate guidelines, or shall amend existing guidelines, to provide that a defendant convicted of violating sections 405, 405A, or 405B of the Controlled Substances Act (21 U.S.C. 845, 845a or 845b) involving a person under 18 years of age shall be assigned an offense level under chapter 2 of the sentencing guidelines that is-

"(1) two levels greater than the level that would have been assigned for the underlying controlled substance offense; and

"(2) in no event less than level 26.

"(b) Effects of Amendment.-If the sentencing guidelines are amended after the effective date of this section [Nov. 18, 1988], the Sentencing Commission shall implement the instruction set forth in subsection (a) so as to achieve a comparable result.

"(c) Multiple Enhancements.-The guidelines referred to in subsection (a), as promulgated or amended under such subsection, shall provide that an offense that could be subject to multiple enhancements pursuant to such subsection is subject to not more than one such enhancement."

Drug Offenses Within Federal Prisons; Sentencing Guidelines

Section 6468(c), (d) of Pub. L. 100–690 provided that:

"(c) Pursuant to its authority under section 994(p) of title 28, United States Code, and section 21 of the Sentencing Act of 1987 [Pub. L. 100–182, set out below], the United States Sentencing Commission shall promulgate guidelines, or shall amend existing guidelines, to provide that a defendant convicted of violating section 1791(a)(1) of title 18, United States Code, and punishable under section 1791(b)(1) of that title as so redesignated, shall be assigned an offense level under chapter 2 of the sentencing guidelines that is-

"(1) two levels greater than the level that would have been assigned had the offense not been committed in prison; and

"(2) in no event less than level 26.

"(d) If the sentencing guidelines are amended after the effective date of this section [Nov. 18, 1988], the Sentencing Commission shall implement the instruction set forth in subsection (c) so as to achieve a comparable result."

Common Carrier Operation Under Influence of Alcohol or Drugs; Sentencing Guidelines

Section 6482(c) of Pub. L. 100–690 provided that:

"(1) Pursuant to its authority under section 994(p) of title 28, United States Code, and section 21 of the Sentencing Act of 1987 [Pub. L. 100–182, set out below], the United States Sentencing Commission shall promulgate guidelines, or shall amend existing guidelines, to provide that-

"(A) a defendant convicted of violating section 342 of title 18, United States Code, under circumstances in which death results, shall be assigned an offense level under chapter 2 of the sentencing guidelines that is not less than level 26; and

"(B) a defendant convicted of violating section 342 of title 18, United States Code, under circumstances in which serious bodily injury results, shall be assigned an offense level under chapter 2 of the sentencing guidelines that is not less than level 21.

"(2) If the sentencing guidelines are amended after the effective date of this section [Nov. 18, 1988], the Sentencing Commission shall implement the instruction set forth in paragraph (1) so as to achieve a comparable result."

Emergency Guidelines Promulgation Authority

Section 21 of Pub. L. 100–182 provided that:

"(a) In General.-In the case of-

"(1) an invalidated sentencing guideline;

"(2) the creation of a new offense or amendment of an existing offense; or

"(3) any other reason relating to the application of a previously established sentencing guideline, and determined by the United States Sentencing Commission to be urgent and compelling;

the Commission, by affirmative vote of at least four members of the Commission, and pursuant to its rules and regulations and consistent with all pertinent provisions of title 28 and title 18, United States Code, shall promulgate and distribute to all courts of the United States and to the United States Probation System a temporary guideline or amendment to an existing guideline, to remain in effect until and during the pendency of the next report to Congress under section 994(p) of title 28, United States Code.

"(b) Expiration of Authority.-The authority of the Commission under paragraphs (1) and (2) of subsection (a) shall expire on November 1, 1989. The authority of the Commission to promulgate and distribute guidelines under paragraph (3) of subsection (a) shall expire on May 1, 1988."

Submission to Congress of Initial Sentencing Guidelines

Provisions directing that the United States Sentencing Commission submit to Congress within 30 months of Oct. 12, 1984, the initial sentencing guidelines promulgated pursuant to subsec. (a)(1) of this section, see section 235(a)(1)(B)(i) of Pub. L. 98–473, as amended, set out as an Effective Date note under section 3551 of Title 18, Crimes and Criminal Procedure.

Effective Date of Sentencing Guidelines

Sentencing guidelines promulgated pursuant to this section effective when U.S. Sentencing Commission has submitted the initial set of sentencing guidelines to Congress, the General Accounting Office has studied and reported to Congress on the guidelines, Congress has examined the guidelines, and section 212(a)(2) of Pub. L. 98–473 takes effect [Nov. 1, 1987], see section 235(a)(1)(B)(ii) of Pub. L. 98–473, as amended, set out as an Effective Date note under section 3551 of Title 18, Crimes and Criminal Procedure.

Studies of Impact and Operation of Sentencing Guideline System; Reporting Requirements

Section 236 of Pub. L. 98–473 provided that:

"(a)(1) Four years after the sentencing guidelines promulgated pursuant to section 994(a)(1), and the provisions of sections 3581, 3583, and 3624 of title 18, United States Code, go into effect, the General Accounting Office shall undertake a study of the guidelines in order to determine their impact and compare the guidelines system with the operation of the previous sentencing and parole release system, and, within six months of the undertaking of such study, report to the Congress the results of its study.

"(2) Within one month of the start of the study required under subsection (a), the United States Sentencing Commission shall submit a report to the General Accounting Office, all appropriate courts, the Department of Justice, and the Congress detailing the operation of the sentencing guideline system and discussing any problems with the system or reforms needed. The report shall include an evaluation of the impact of the sentencing guidelines on prosecutorial discretion, plea bargaining, disparities in sentencing, and the use of incarceration, and shall be issued by affirmative vote of a majority of the voting members of the Commission.

"(b) The Congress shall review the study submitted pursuant to subsection (a) in order to determine-

"(1) whether the sentencing guideline system has been effective;

"(2) whether any changes should be made in the sentencing guideline system; and

"(3) whether the parole system should be reinstated in some form and the life of the Parole Commission extended."

Section Referred to in Other Sections

This section is referred to in sections 995, 998 of this title; title 18 sections 3143, 3552, 3553, 3582, 3583, 3621, 3622, 5037; title 29 sections 504, 1111.

¹ So in original. Probably should be "incidence".