The Law Office of Tom Norrid
SAMARITAN PROJECTS LLC
P.O. Box 9244
Springfield, MO 65801-9244
Proposed Changes to U.S.S.G. 4B1.2
The proposed amendment would amend 4B1.2 (Definitions of Terms Used in Section 4B1.1) in several ways. First, the proposed amendment would move the definition of “controlled substance offense” from subsection (b) to subsection (a). It would also revise the definition of “controlled substance offense” to exclude state drug offenses from the scope of its application by listing specific federal statutes relating to drug offenses. The proposed amendment lists the federal statutes that are controlled substance offenses under the current definition to maintain the status quo with respect to federal drug trafficking statutes. The federal drug trafficking statutes that do not appear in brackets are specifically referenced in the career offender directive at 28 U.S.C. 994(h). The proposed amendment would also move to subsection (a) the provision currently located in Commentary to 4B1.2 stating that a violation of 18 U.S.C. 924(c) or 929(a) is a “controlled substance offense” if the offense of conviction established that the underlying offense was a “controlled substance offense.” Second, the proposed amendment would place all provisions related to “crime of violence” in subsection (b). It would define the term “crime of violence” based on the defendant’s own offense conduct which, consistent with subsection (a)(1)(A) of 1B1.3 (Relevant Conduct), is the conduct that the defendant committed, aided or abetted, counseled, commanded, induced, procured, or willfully caused during the commission of the offense, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense. It provides a list of types of qualifying conduct that includes a “force clause” at 4B1.2(b)(1)(A) (which closely tracks the language of current 4B1.2(a)(1) but would incorporate a parenthetical insert defining the term “physical force” as “force capable of causing physical pain or injury to another person”) and provisions relating to conduct that would constitute certain specific offenses that currently qualify as a “crime of violence,” such as forcible sex offenses, robbery, arson, and extortion. The proposed amendment would also include a provision at subsection (b)(2) that would allow certain inchoate offenses to still qualify as “crimes of violence.” In addition, the proposed amendment would require the government to make a prima facie showing that an offense is a “crime of violence” by using only a specific list of sources of information from the record. Third, the proposed amendment sets forth three options for setting a minimum sentence length requirement for a prior conviction to qualify as a “crime of violence” or “controlled substance offense.” Option 1 would limit qualifying prior convictions to only convictions that are counted separately under 4A1.1(a) [or (b)]. Option 2 would limit qualifying prior convictions to only convictions that resulted in a sentence imposed of [five years][three years][one year] or more that are counted separately under 4A1.1(a) [or (b)]. Option 2 brackets the possibility of including a provision that provides that a conviction shall not qualify as a prior felony conviction under 4B1.2 if the defendant can establish that the conviction resulted in a sentence for which the defendant served less than [three years] [two years][six months] in prison. Option 3 would limit qualifying prior convictions to only convictions that resulted in a sentence for which the defendant served [five years][three years][one year] or more in prison and that are counted separately under 4A1.1(a) [or (b)]. All three options include two suboptions. Suboption A in each option would set the minimum sentence length requirement for purposes of both “crime of violence” and “controlled substance offense.” Suboption B in each option would set the minimum sentence length requirement for purposes of “crime of violence” only. The current definitions of “crime of violence” and “controlled substance” at 4B1.2 are incorporated by reference in several other guidelines in the Guidelines Manual. The proposed amendment would maintain the status quo by amending the Commentary to these guidelines to incorporate the relevant part or parts of 4B1.2. The proposed amendment would make such changes to 2K1.3 (Unlawful Receipt, Possession, or Transportation of Explosive Materials; Prohibited Transactions Involving Explosive Materials), 2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition), 2S1.1 (Laundering of Monetary Instruments; Engaging in Monetary Transactions in Property Derived from Unlawful Activity), 4A1.2 (Definitions and Instructions for Computing Criminal History), 4B1.4 (Armed Career Criminal), 5K2.17 (Semiautomatic Firearms Capable of Accepting Large Capacity Magazine (Policy Statement)), and 7B1.1 (Classification of Violations (Policy Statement)).
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