Brett G. Sweitzer Assistant Federal Defender Chief of Appeals Federal Community Defender Office, E.D. Pa.

Three Major Areas (1) “Crime of Violence” definition in ∫ 4B1.2 (eff. 8/1/16) (2) Illegal Reentry Guideline, ∫ 2L1.2 (eff. 11/1/16) (3) Child Pornography Guidelines (eff. 11/1/16) PLUS various miscellaneous amendments

“Crime of Violence” Response to Johnson v. United States, 135 S. Ct (2015), invalidating ACCA’s residual clause COV residual clause deleted Enumerated offense clause expanded/modified by moving commentary offenses to guideline Some enumerated offenses defined in commentary

“Crime of Violence” Before: (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

“Crime of Violence” Before: (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

“Crime of Violence” Before: (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

“Crime of Violence” After: (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. ∫ 5845(a) or explosive material as defined in 18 U.S.C. ∫ 841(c) involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

“Crime of Violence” Note: (1) Burglary dropped, BUT invited upward departure for violent burglaries (2) Involuntary manslaughter and extortionate extension of credit dropped (3) “Unlawful possession” of explosives, rather than use (4) Invited downward departure for priors that are now state misdemeanors

“Crime of Violence” Definitions of Enumerated Offenses (1) Most offenses left to courts to identify generic definition (MPC; preponderance of state statutes; treatises; etc.) (2) Extortion: commentary requires force or fear/threat of physical injury, not economic or reputational injury

“Crime of Violence” Definitions of Enumerated Offenses (3) Forcible sex offense: ∙ no/invalid consent ∙ “sexual abuse of minor” and “statutory rape” count ONLY IF -- ∫ 2241(c) offense or state equivalent ∙ victim < 12 ∙ victim and D 4+ years older AND ∫ 2241 (a)-(b) factors present (e.g., force, threat, intoxicant)

“Crime of Violence” Rationale for Amendment (1) Johnson applies to Guidelines (2) Old commentary offenses interpreted residual clause, and are invalid post-Johnson unless moved to guideline ∙ Stinson v. U.S., 508 U.S. 36 (1993); but see U.S. v. Marrero, 743 F.3d 389 (3d Cir. 2014) ∙ same objection invalidates inchoate offense commentary

“Crime of Violence” Pre-effective date litigation (1) Litigate or preserve Stinson/Marrero issue for pre- 8/1/16 offenders (2) If amendment beneficial, seek pre-effective date variance based on reason for amendment

Illegal Reentry Complete Overhaul of guideline Before: recidivist enhancements based entirely on type of prior conviction(s), +4 to +16 After: recidivist enhancements based on prior entry/reentry, timing/type of prior conviction(s), and length of sentence(s) imposed

Illegal Reentry New regime: the “three-step” (1) Prior entry/reentry convictions ∙ +4 if ∫∫ 1326 or 1253 (removal) or second/successive ∫ 1325(a) (felony) ∙ +2 if two+ misdemeanor ∫ 1325(a)s (2) Pre-initial removal convictions ∙ +10 if felony 5+ year sentence ∙ +8 if felony 2+ year sentence ∙ +6 if felony year-and-month+ sentence ∙ +4 if other felony ∙ +2 if 3+ misdemeanor COVs or DTOs (categorical approach)

Illegal Reentry New regime: the “three-step” (3) Post-initial removal convictions ∙ +10 if felony 5+ year sentence ∙ +8 if felony 2+ year sentence ∙ +6 if felony year-and-month+ sentence ∙ +4 if other felony ∙ +2 if 3+ misdemeanor COVs or DTOs (categorical approach)

Illegal Reentry New regime: the “three-step” ∙ Steps (1) – (3) apply cumulatively ∙ Illegal reentries (∫∫ 1326/1253) don’t count outside step-one ∙ Priors must qualify for CHC points: staleness, single/separate, back-time, and (modified) juvenile rules of ∫ 4A1.2 apply (exception: illegal reentry/felony) ∙ Invited departures for over/under-statement and (limited) for state custody and cultural assimilation ∙ COV definition conforms to new ∫ 4B1.2

Illegal Reentry Pre-effective date litigation ∙ Need to do parallel calculation to see which version of GL is more beneficial ∙ Where amendment beneficial, seek pre-effective date variance or postponement of sentencing ∙ Where detrimental, ex post facto analysis

Alien Smuggling Two changes to ∫ 2L1.1: (1) Unaccompanied minors -- (b)(4) ∙ +4 (from +2) ∙ expanded to “adult relatives” / “legal guardian” (from parent/grandparent) ∙ expanded from < 18 (from < 16) (2) “Serious bodily injury” -- (b)(6) and (b)(7) ∙ automatic when conduct constituting “criminal sexual abuse” (∫∫ 2241/42 or similar state)

Child Pornography Two changes to CP guidelines: (1) Infants and Toddlers -- ∫∫ 2G2.1/2 (b)(4) ∙ +4 now includes infant/toddler (from sadistic- masochistic/violence) -- undefined ∙ vulnerable victim (∫ 3A1.1(b)) should NOT be applied (2) Distribution -- ∫∫ 2G2.1/2 (b)(3) 2G3.1(b)(1) ∙ “involved distribution” »» “knowingly engaged in distribution” ∙ distribution “for receipt/expectation of thing of value” »» “in exchange for any valuable consideration”

Miscellaneous (1) Animal Fighting -- ∫ 2E3.1 ∙ BOL 16 (from 10), except 10 for 7 USC ∫ 2156(a)(2)(B) ∙ invited upward departure for extraordinary cruelty/exceptional scale (2) Probation / SR Conditions ∙ various mandatory/standard/special, including simplified SORNA, firearms, employment, etc. (3) Compassionate Release ∙ expanded criteria / encourage BOP filings (4) Various offenses ∙ reference new offenses under USA FREEDOM Act (∫∫ 2280a, 2281a, 2332i); BOL 6 for non-mailable firearms (∫∫ 2K2.1(a)(4)(8), 1715)