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January 18, 2012

US Sentencing Commission publishes (lengthy) set of proposed guideline amendments and issues for comment

Via a posting on its website, the US Sentencing Commission has now released this document which serves as its "Federal Register Notice of Proposed Amendments to Federal Sentencing Guidelines, Policy Statements, and Commentary," as well as a "Request for Public Comment" (which is due no later than March 19, 2012).  The document runs 94 pages, and here is a summary (with my edits and emphasis added) of its coverage from the initial pages:

The proposed amendments and issues for comment in this notice are as follows:

(1) a proposed amendment on fraud and related offenses, including (A) an issue for comment in response to the issue of harm to the public and financial markets, as raised by each of two [congressional] directives to the Commission... ; (B) a proposed change to 2B1.4 (Insider Trading) to implement [another such] directive ..., and related issues for comment on insider trading, securities fraud, and similar offenses; (C) proposed changes to 2B1.1 (Theft, Property Destruction, and Fraud) regarding mortgage fraud offenses to implement [another such] directive ..., and a related issue for comment on mortgage fraud and financial institution fraud; and (D) issues for comment on the impact of the loss table in 2B1.1(b)(1) and the victims table in 2B1.1(b)(2) in cases involving relatively large loss amounts;

(2) a proposed amendment on offenses involving controlled substances and chemical precursors...

(3) a proposed amendment on human rights offenses....

(4) a proposed amendment to 2L1.2 (Unlawfully Entering or Remaining in the United States) to respond to a circuit conflict over application of the term "sentence imposed" in that guideline when the defendant's original "sentence imposed" was lengthened after the defendant was deported;

(5) a proposed amendment presenting options for specifying the types of documents that may be considered in determining whether a particular prior conviction fits within a particular category of crimes for purposes of specific guideline provisions, and related issues for comment;

(6) a proposed amendment to 4A1.2 (Definitions and Instructions for Computing Criminal History) to respond to an application issue regarding when a defendant's prior sentence for driving while intoxicated or driving under the influence (and similar offenses by whatever name they are known) is counted toward the defendant's criminal history score;

(7) a proposed amendment to 4B1.2 (Definitions of Terms Used in Section 4B1.1) to respond to differences among the circuits on when, if at all, burglary of a non-dwelling qualifies as a crime of violence for purposes of the guidelines, and related issues for comment;

(8) a proposed amendment to 5G1.2 (Sentencing on Multiple Counts of Conviction) to respond to an application issue regarding the applicable guideline range in a case in which the defendant is sentenced on multiple counts of conviction, at least one of which involves a mandatory minimum sentence that is greater than the minimum of the otherwise applicable guideline range;

(9) a proposed amendment to 5K2.19 (Post-Sentencing Rehabilitative Efforts) to respond to Pepper v. United States, 131 S.Ct. 1229 (2011), which held, among other things, that a defendant's post-sentencing rehabilitative efforts may be considered when the defendant is resentenced after appeal; and

(10) a proposed amendment in response to miscellaneous issues arising from legislation recently enacted....

Much of this stuff, at least based on my first too-quick scan, appears to involve status quo tweaking rather than any big-ticket proposed guideline changes.  However, the issue for comment that I have highlighted above might be a first foray into a significant and important aspect of the current fraud guidelines that (I hope) the USSC may eventually be willing to rework significantly.

UPDATE:  The USSC also posted has this "Reader Friendly" compilation of its proposed 2012 amendments to the federal sentencing guidelines.

January 18, 2012 at 03:36 PM | Permalink


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