United States Sentencing Guidelines 2008 Amendments
The United States Sentencing Commission has recently voted to amend several sentencing guidelines, commentary and policy statements. The amendments were sent to Congress on May 1, 2008 and, assuming Congressional approval, will take effect on November 1, 2008.
Introduction to Chapter One
In this amendment, the Sentencing Commission characterizes the role of the guidelines, their evolution, and their relevance in light of recent Supreme Court rulings in Booker, Rita, Gall, and Kimbrough.
Immigration Guideline (USSG §2L1.2)
This amendment alters the definitions of “crime of violence” and “drug trafficking offense” as described in §2L1.2. The amended definition of crimes of violence added an explanation to the definition of forcible sex offenses which reads “including 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 amendment also adds to the definition of drug-trafficking an “offer to sell.” It is believed that both amendments run afoul to several court of appeals decisions. In addition to the changes in definitions, the amendment also includes an upward or downward departure for situations where the guideline offense level overstates or understates the seriousness of the enhancing prior conviction.
Disaster Fraud (amending USSG §2B1.1)
This amendment makes changes to §2B1.1 as it relates to fraud offenses involving disaster relief or emergency benefits, and adds a downward departure provision where a defendant is also a victim of a major disaster or emergency.
New Crack-Marijuana Equivalency Table (commentary to USSG §2D1.1 and §1B1.10)
The amendment to §2D1.1’s commentary changes a section that was created by the former Amendment 706. It proposes a change to the drug equivalency table to provide that 1 gram of crack cocaine is equal to 20 kilograms of marijuana, and then calls for a two-level decrease in the resulting offense level. The Sentencing Commission also proposes that this change be retroactive.
Additional Guideline Amendments
The Commission proposed five additional amendments:
· It voted to reference offenses under the new 18 U.S.C. § 227 (part of the Honest Leadership and Open Government Act of 2007) to §2C1.1.
· It implemented the Animal Fighting Prohibition Enforcement Act of 2007 (which creates a new offense and increases penalties for existing offenses) by creating an additional offense level and setting forth a new ground for upward departure in §2E3.1
· It implemented the Court Security Improvement Act (which creates two new offenses) by adding enhancement provisions to §2A6.1 and §2H3.1. It also adds upward departure and cross-reference provisions to §2A6.1, and cross-reference and definitional instructions to §2H3.1.
· It created in §2N2.1 an enhancement applicable when a defendant has a prior conviction for an offense under either the Federal Food, Drug, and Cosmetic Act or the Prescription Drug Marketing Act. It also amended this guideline provision to recommend an upward departure where the offense “created a substantial risk of bodily injury or death.”
· It proposed a number of technical corrections to various guidelines.