News Release
April 12, 2018
WASHINGTON, D.C. — The United States Sentencing Commission unanimously voted on
a slate of new amendments to the Guidelines
Manual. Among other actions, the
Commissioners voted to update the federal sentencing guidelines to address
evolving challenges related to the distribution of synthetic drugs. The amendments reflect a collaborative, detailed,
and data-driven approach to federal sentencing policy.
At
the public meeting, Circuit Judge William H. Pryor Jr., acting chair of the
Commission, remarked, “I would
like to acknowledge the unique challenge that the Commission faced
during this current amendment cycle. The Sentencing Reform Act of 1984
contemplates that there will be seven voting members on the Commission,
appointed by the President and confirmed by the Senate. While setting
sentencing policy is always difficult—because it
impacts the liberty of our fellow citizens—reaching consensus was particularly
challenging and critical this amendment cycle.
Under the statute, we need an affirmative vote of four Commissioners to
approve any pending amendments.”
At the meeting, the Commissioners
approved a multi-part synthetic drugs amendment. The amendment draws upon public comment,
expert testimony, and data analysis gathered during a multi-year study of
synthetic drugs. Before today’s actions,
many new synthetic drugs were not referenced in the federal sentencing
guidelines. As a result, courts have
faced expensive and resource-intensive hearings. The Commission’s actions reflect the evolving
nature of these new drugs and will simplify and promote uniformity in
sentencing these offenders.
Among today’s actions, the Commissioners voted
to adopt a new guideline definition of the term “fentanyl analogue.” The change effectively raises the guideline
penalties for fentanyl analogues to a level more consistent with the current
statutory penalty structure. To address
the severe dangers posed by fentanyl, the Commissioners also voted to adopt a
four-level sentencing enhancement for knowingly misrepresenting or knowingly marketing
fentanyl or fentanyl analogues as another substance (which equates to an
approximate 50 percent increase in sentence).
The new amendment also establishes drug ratios
and minimum offense levels for two new classes of synthetics drugs: synthetic
cathinones (often referred to as “bath salts”) and synthetic cannabinoids (including,
but not limited to, “K2” or “spice”). Following
a multi-year study and series of public hearings with experts, the Commission
found that synthetic cathinones possess a common chemical structure that is
sufficiently similar to treat as a single class of synthetic drugs. The Commission also found that, while
synthetic cannabinoids differ in chemical structure, the drugs induce similar
biological responses and share similar pharmacological effects. In
setting the new drug ratios, the Commission considered among other factors, the
severity of the medical harms to the user, the current ratios applied in
similar cases, known trafficking behaviors, and concerns for public
safety. In recognition that potencies
vary, the Commission also adopted departure language for drugs in a class that
are more or less potent.
The Commission also voted to adopt a new
application note providing that judges should consider alternative sentencing
options for “nonviolent first offenders” whose applicable guideline range falls
within Zones A or B. Eligible defendants
must not have any prior convictions and must not have used violence, credible
threats of violence, or possessed a firearm or other dangerous weapon in the
offense. This narrowly-tailored amendment
is consistent with the directive to the Commission in 28 U.S.C. § 994(j).
Acting
Chair Pryor also observed, “Among the four of us here today, the unanimous
agreement on this slate of amendments reflects even more collaboration and
compromise than in a typical amendment cycle, and I would like to thank my
fellow Commissioners for their time and service. We worked together to
develop solutions that improve the federal sentencing guidelines in a manner
that balances fairness, justice, fiscal responsibility, and public safety.
I look forward to working with my colleagues to strengthen and to
simplify the guidelines. Together, we
will continue our efforts to ensure clear and effective guidance for federal
courts across the country.”
At the meeting, the
Commission also increased offense levels for certain Social Security fraud
offenses to incorporate statutory changes resulting from the Bipartisan Budget
Act of 2015. The Commission received
valuable comment from the U.S. Senate Committee on Finance, the U.S. House of
Representatives Ways and Means Committee, and the U.S. House of Representatives
Judiciary Committee as well as the Social Security Administration. Today’s amendment provides for an enhancement
and a minimum offense level for individuals who violate certain positions of
trust (e.g., health care providers,
claims representatives, and others) in a manner that addresses the seriousness
and sophistication of these fraudulent schemes.
The Commission
also voted to adopt the recommendations made by the Tribal Issues Advisory
Group in its May 2016 report. The
amendment provides a non-exhaustive list of factors that courts may consider in
determining whether a prior tribal court conviction warrants an upward
departure from the recommended sentencing range. The amendment also adds a definition for
"court protection order” for purposes of applying an enhancement under the
aggravated assault, harassment, and domestic violence guidelines. Other technical and miscellaneous amendments
were also adopted at today’s public meeting.
The full set of
amendments will be transmitted to Congress by May 1, 2018. If Congress does not act to disapprove the
amendments, they will go into effect on November 1, 2018. More information about this process and the
amendments approved today are available here.
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