Chapter 5

CHAPTER FIVE
DETERMINING THE SENTENCE
Introductory Commentary
For certain categories of offenses and offenders, the guidelines permit the court to impose either
imprisonment or some other sanction or combination of sanctions. In determining the type of sentence
to impose, the sentencing judge should consider the nature and seriousness of the conduct, the statu-
tory purposes of sentencing, and the pertinent offender characteristics. A sentence is within the guide-
lines if it complies with each applicable section of this chapter. The court should impose a sentence
sufficient, but not greater than necessary, to comply with the statutory purposes of sentencing.
18 U.S.C. § 3553(a).
Historical
Effective November 1, 1987.
Note
PART A ― SENTENCING TABLE
The Sentencing Table used to determine the guideline range follows:
406 ║ Guidelines Manual (November 1, 2018)

Ch. 5 Pt. A
SENTENCING TABLE
(in months of imprisonment)
Criminal History Category (Criminal History Points)
Offense I II III IV V VI
Level (0 or 1) (2 or 3) (4, 5, 6) (7, 8, 9) (10, 11, 12) (13 or more)
1 0–6 0–6 0–6 0–6 0–6 0–6
2 0–6 0–6 0–6 0–6 0–6 1–7
3 0–6 0–6 0–6 0–6 2–8 3–9
4 0–6 0–6 0–6 2–8 4–10 6–12
Zone A
5 0–6 0–6 1–7 4–10 6–12 9–15
6 0–6 1–7 2–8 6–12 9–15 12–18
7 0–6 2–8 4–10 8–14 12–18 15–21
8 0–6 4–10 6–12 10–16 15–21 18–24
9 4–10 6–12 8–14 12–18 18–24 21–27
Zone B 10 6–12 8–14 10–16 15–21 21–27 24–30
11 8–14 10–16 12–18 18–24 24–30 27–33
12 10–16 12–18 15–21 21–27 27–33 30–37
Zone C
13 12–18 15–21 18–24 24–30 30–37 33–41
14 15–21 18–24 21–27 27–33 33–41 37–46
15 18–24 21–27 24–30 30–37 37–46 41–51
16 21–27 24–30 27–33 33–41 41–51 46–57
17 24–30 27–33 30–37 37–46 46–57 51–63
18 27–33 30–37 33–41 41–51 51–63 57–71
19 30–37 33–41 37–46 46–57 57–71 63–78
20 33–41 37–46 41–51 51–63 63–78 70–87
21 37–46 41–51 46–57 57–71 70–87 77–96
22 41–51 46–57 51–63 63–78 77–96 84–105
23 46–57 51–63 57–71 70–87 84–105 92–115
24 51–63 57–71 63–78 77–96 92–115 100–125
25 57–71 63–78 70–87 84–105 100–125 110–137
26 63–78 70–87 78–97 92–115 110–137 120–150
27 70–87 78–97 87–108 100–125 120–150 130–162
28 78–97 87–108 97–121 110–137 130–162 140–175
Zone D
29 87–108 97–121 108–135 121–151 140–175 151–188
30 97–121 108–135 121–151 135–168 151–188 168–210
31 108–135 121–151 135–168 151–188 168–210 188–235
32 121–151 135–168 151–188 168–210 188–235 210–262
33 135–168 151–188 168–210 188–235 210–262 235–293
34 151–188 168–210 188–235 210–262 235–293 262–327
35 168–210 188–235 210–262 235–293 262–327 292–365
36 188–235 210–262 235–293 262–327 292–365 324–405
37 210–262 235–293 262–327 292–365 324–405 360–life
38 235–293 262–327 292–365 324–405 360–life 360–life
39 262–327 292–365 324–405 360–life 360–life 360–life
40 292–365 324–405 360–life 360–life 360–life 360–life
41 324–405 360–life 360–life 360–life 360–life 360–life
42 360–life 360–life 360–life 360–life 360–life 360–life
43 life life life life life life
Guidelines Manual (November 1, 2018) ║ 407

Ch. 5 Pt. A
Commentary to Sentencing Table
Application Notes:
1. The Offense Level (1–43) forms the vertical axis of the Sentencing Table. The Criminal History
Category (I–VI) forms the horizontal axis of the Table. The intersection of the Offense Level and
Criminal History Category displays the Guideline Range in months of imprisonment. “Life”
means life imprisonment. For example, the guideline range applicable to a defendant with an
Offense Level of 15 and a Criminal History Category of III is 24–30 months of imprisonment.
2. In rare cases, a total offense level of less than 1 or more than 43 may result from application of
the guidelines. A total offense level of less than 1 is to be treated as an offense level of 1. An
offense level of more than 43 is to be treated as an offense level of 43.
3. The Criminal History Category is determined by the total criminal history points from Chap-
ter Four, Part A, except as provided in §§4B1.1 (Career Offender) and 4B1.4 (Armed Career
Criminal). The total criminal history points associated with each Criminal History Category are
shown under each Criminal History Category in the Sentencing Table.
Historical Effective November 1, 1987. Amended effective November 1, 1989 (amendment 270); November 1, 1991
Note (amendment 418); November 1, 1992 (amendment 462); November 1, 2010 (amendment 738).

§5B1.1
PART B ― PROBATION
The Comprehensive Crime Control Act of 1984 makes probation a sentence in and of itself.
18 U.S.C. § 3561. Probation may be used as an alternative to incarceration, provided that the terms
and conditions of probation can be fashioned so as to meet fully the statutory purposes of sentencing,
including promoting respect for law, providing just punishment for the offense, achieving general de-
terrence, and protecting the public from further crimes by the defendant.
Historical
Note
§5B1.1. Imposition of a Term of Probation
(a) Subject to the statutory restrictions in subsection (b) below, a sentence of

probation is authorized if:
(1) the applicable guideline range is in Zone A of the Sentencing Table;

or
(2) the applicable guideline range is in Zone B of the Sentencing Table

and the court imposes a condition or combination of conditions requir-
ing intermittent confinement, community confinement, or home de-
tention as provided in subsection (c)(3) of §5C1.1 (Imposition of a
Term of Imprisonment).
(b) A sentence of probation may not be imposed in the event:
(1) the offense of conviction is a Class A or B felony, 18 U.S.C.

§ 3561(a)(1);
(2) the offense of conviction expressly precludes probation as a sentence,

18 U.S.C. § 3561(a)(2);
(3) the defendant is sentenced at the same time to a sentence of impris-

onment for the same or a different offense, 18 U.S.C. § 3561(a)(3).
Commentary
Application Notes:
1. Except where prohibited by statute or by the guideline applicable to the offense in Chapter Two,
the guidelines authorize, but do not require, a sentence of probation in the following circum-
stances:

§5B1.2
(A) Where the applicable guideline range is in Zone A of the Sentencing Table
(i.e., the minimum term of imprisonment specified in the applicable guideline
range is zero months). In such cases, a condition requiring a period of community con-
finement, home detention, or intermittent confinement may be imposed but is not required.
(B) Where the applicable guideline range is in Zone B of the Sentencing Table
(i.e., the minimum term of imprisonment specified in the applicable guideline
range is at least one but not more than nine months). In such cases, the court may
impose probation only if it imposes a condition or combination of conditions requiring a
period of community confinement, home detention, or intermittent confinement sufficient
to satisfy the minimum term of imprisonment specified in the guideline range. For example,
where the offense level is 7 and the criminal history category is II, the guideline range from
the Sentencing Table is 2–8 months. In such a case, the court may impose a sentence of
probation only if it imposes a condition or conditions requiring at least two months of com-
munity confinement, home detention, or intermittent confinement, or a combination of com-
munity confinement, home detention, and intermittent confinement totaling at least two
months.
2. Where the applicable guideline range is in Zone C or D of the Sentencing Table (i.e., the minimum
term of imprisonment specified in the applicable guideline range is ten months or more), the
guidelines do not authorize a sentence of probation. See §5C1.1 (Imposition of a Term of Impris-
onment).
Background: This section provides for the imposition of a sentence of probation. The court may sen-
tence a defendant to a term of probation in any case unless (1) prohibited by statute, or (2) where a
term of imprisonment is required under §5C1.1 (Imposition of a Term of Imprisonment). Under
18 U.S.C. § 3561(a)(3), the imposition of a sentence of probation is prohibited where the defendant is
sentenced at the same time to a sentence of imprisonment for the same or a different offense. Although
this provision has effectively abolished the use of “split sentences” imposable pursuant to the former
18 U.S.C. § 3651, the drafters of the Sentencing Reform Act noted that the functional equivalent of the
split sentence could be “achieved by a more direct and logically consistent route” by providing that a
defendant serve a term of imprisonment followed by a period of supervised release. (S. Rep. No. 225,
98th Cong., 1st Sess. 89 (1983)). Section 5B1.1(a)(2) provides a transition between the circumstances
under which a “straight” probationary term is authorized and those where probation is prohibited.
Historical Effective November 1, 1987. Amended effective November 1, 1989 (amendments 271 and 302); November 1,
Note 1992 (amendment 462); November 1, 2010 (amendments 738 and 747).
§5B1.2. Term of Probation
(a) When probation is imposed, the term shall be:
(1) at least one year but not more than five years if the offense level is 6
or greater;
(2) no more than three years in any other case.

§5B1.3
Commentary
Background: This section governs the length of a term of probation. Subject to statutory restrictions,
the guidelines provide that a term of probation may not exceed three years if the offense level is less
than 6. If a defendant has an offense level of 6 or greater, the guidelines provide that a term of proba-
tion be at least one year but not more than five years. Although some distinction in the length of a
term of probation is warranted based on the circumstances of the case, a term of probation may also
be used to enforce conditions such as fine or restitution payments, or attendance in a program of treat-
ment such as drug rehabilitation. Often, it may not be possible to determine the amount of time re-
quired for the satisfaction of such payments or programs in advance. This issue has been resolved by
setting forth two broad ranges for the duration of a term of probation depending upon the offense level.
Within the guidelines set forth in this section, the determination of the length of a term of probation
is within the discretion of the sentencing judge.
Historical
Effective November 1, 1987
Note
§5B1.3. Conditions of Probation
(a) MANDATORY CONDITIONS
(1) For any offense, the defendant shall not commit another federal, state
or local offense (see 18 U.S.C. § 3563(a)).
(2) For a felony, the defendant shall (A) make restitution, (B) work in
community service, or (C) both, unless the court has imposed a fine,
or unless the court finds on the record that extraordinary circum-
stances exist that would make such a condition plainly unreasonable,
in which event the court shall impose one or more of the discretionary
conditions set forth under 18 U.S.C. § 3563(b) (see 18 U.S.C.
§ 3563(a)(2)).
(3) For any offense, the defendant shall not unlawfully possess a con-
trolled substance (see 18 U.S.C. § 3563(a)).
(4) For a domestic violence crime as defined in 18 U.S.C. § 3561(b) by a

defendant convicted of such an offense for the first time, the defendant
shall attend a public, private, or non-profit offender rehabilitation
program that has been approved by the court, in consultation with a
State Coalition Against Domestic Violence or other appropriate ex-
perts, if an approved program is available within a 50-mile radius of
the legal residence of the defendant (see 18 U.S.C. § 3563(a)).
(5) For any offense, the defendant shall refrain from any unlawful use of
a controlled substance and submit to one drug test within 15 days of
release on probation and at least two periodic drug tests thereafter

§5B1.3
(as determined by the court) for use of a controlled substance, but the
condition stated in this paragraph may be ameliorated or suspended
by the court for any individual defendant if the defendant’s presen-
tence report or other reliable information indicates a low risk of future
substance abuse by the defendant (see 18 U.S.C. § 3563(a)).
(6) The defendant shall (A) make restitution in accordance with 18 U.S.C.
§§ 2248, 2259, 2264, 2327, 3663, 3663A, and 3664; and (B) pay the
assessment imposed in accordance with 18 U.S.C. § 3013. If there is a
court-established payment schedule for making restitution or paying
the assessment (see 18 U.S.C. § 3572(d)), the defendant shall adhere
to the schedule.
(7) The defendant shall notify the court of any material change in the
defendant’s economic circumstances that might affect the defendant’s
ability to pay restitution, fines, or special assessments (see 18 U.S.C.
§ 3563(a)).
(8) If the court has imposed a fine, the defendant shall pay the fine or
adhere to a court-established payment schedule (see 18 U.S.C.
§ 3563(a)).
(9) If the defendant is required to register under the Sex Offender Regis-
tration and Notification Act, the defendant shall comply with the re-
quirements of that Act (see 18 U.S.C. § 3563(a)).
(10) The defendant shall submit to the collection of a DNA sample from
the defendant at the direction of the United States Probation Office if
the collection of such a sample is authorized pursuant to section 3 of
the DNA Analysis Backlog Elimination Act of 2000 (34 U.S.C.
§ 40702).
(b) DISCRETIONARY CONDITIONS
The court may impose other conditions of probation to the extent that such
conditions (1) are reasonably related to (A) the nature and circumstances
of the offense and the history and characteristics of the defendant; (B) the
need for the sentence imposed to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense;
(C) the need for the sentence imposed to afford adequate deterrence to
criminal conduct; (D) the need to protect the public from further crimes of
the defendant; and (E) the need to provide the defendant with needed ed-
ucational or vocational training, medical care, or other correctional treat-
ment in the most effective manner; and (2) involve only such deprivations
of liberty or property as are reasonably necessary for the purposes of sen-
tencing indicated in 18 U.S.C. § 3553(a) (see 18 U.S.C. § 3563(b)).

§5B1.3
(c) “STANDARD” CONDITIONS (POLICY STATEMENT)
The following “standard” conditions are recommended for probation. Sev-

eral of the conditions are expansions of the conditions required by statute:
(1) The defendant shall report to the probation office in the federal judi-
cial district where he or she is authorized to reside within 72 hours of
the time the defendant was sentenced, unless the probation officer in-
structs the defendant to report to a different probation office or within
a different time frame.
(2) After initially reporting to the probation office, the defendant will re-
ceive instructions from the court or the probation officer about how
and when to report to the probation officer, and the defendant shall
report to the probation officer as instructed.
(3) The defendant shall not knowingly leave the federal judicial district
where he or she is authorized to reside without first getting permis-
sion from the court or the probation officer.
(4) The defendant shall answer truthfully the questions asked by the pro-
bation officer.
(5) The defendant shall live at a place approved by the probation officer.
If the defendant plans to change where he or she lives or anything
about his or her living arrangements (such as the people the defend-
ant lives with), the defendant shall notify the probation officer at least
10 days before the change. If notifying the probation officer at least
10 days in advance is not possible due to unanticipated circumstances,
the defendant shall notify the probation officer within 72 hours of be-
coming aware of a change or expected change.
(6) The defendant shall allow the probation officer to visit the defendant
at any time at his or her home or elsewhere, and the defendant shall
permit the probation officer to take any items prohibited by the con-
ditions of the defendant’s supervision that he or she observes in plain
view.
(7) The defendant shall work full time (at least 30 hours per week) at a
lawful type of employment, unless the probation officer excuses the
defendant from doing so. If the defendant does not have full-time em-
ployment he or she shall try to find full-time employment, unless the
probation officer excuses the defendant from doing so. If the defendant
plans to change where the defendant works or anything about his or
her work (such as the position or the job responsibilities), the defend-
ant shall notify the probation officer at least 10 days before the
change. If notifying the probation officer at least 10 days in advance

§5B1.3
is not possible due to unanticipated circumstances, the defendant

shall notify the probation officer within 72 hours of becoming aware
of a change or expected change.
(8) The defendant shall not communicate or interact with someone the
defendant knows is engaged in criminal activity. If the defendant
knows someone has been convicted of a felony, the defendant shall not
knowingly communicate or interact with that person without first get-
ting the permission of the probation officer.
(9) If the defendant is arrested or questioned by a law enforcement of-

ficer, the defendant shall notify the probation officer within 72 hours.
(10) The defendant shall not own, possess, or have access to a firearm, am-
munition, destructive device, or dangerous weapon (i.e., anything that
was designed, or was modified for, the specific purpose of causing bod-
ily injury or death to another person, such as nunchakus or tasers).
(11) The defendant shall not act or make any agreement with a law en-
forcement agency to act as a confidential human source or informant
without first getting the permission of the court.
(12) If the probation officer determines that the defendant poses a risk to
another person (including an organization), the probation officer may
require the defendant to notify the person about the risk and the de-
fendant shall comply with that instruction. The probation officer may
contact the person and confirm that the defendant has notified the
person about the risk.
(13) The defendant shall follow the instructions of the probation officer re-
lated to the conditions of supervision.
(d) “SPECIAL” CONDITIONS (POLICY STATEMENT)
The following “special” conditions of probation are recommended in the cir-

cumstances described and, in addition, may otherwise be appropriate in
particular cases:
(1) SUPPORT OF DEPENDENTS
(A) If the defendant has one or more dependents — a condition spec-

ifying that the defendant shall support his or her dependents.
(B) If the defendant is ordered by the government to make child sup-

port payments or to make payments to support a person caring
for a child — a condition specifying that the defendant shall make
the payments and comply with the other terms of the order.

§5B1.3
(2) DEBT OBLIGATIONS
If an installment schedule of payment of restitution or a fine is im-

posed — a condition prohibiting the defendant from incurring new
credit charges or opening additional lines of credit without approval
of the probation officer unless the defendant is in compliance with the
payment schedule.
(3) ACCESS TO FINANCIAL INFORMATION
If the court imposes an order of restitution, forfeiture, or notice to vic-

tims, or orders the defendant to pay a fine — a condition requiring the
defendant to provide the probation officer access to any requested fi-
nancial information.
(4) SUBSTANCE ABUSE
If the court has reason to believe that the defendant is an abuser of

narcotics, other controlled substances or alcohol — (A) a condition re-
quiring the defendant to participate in a program approved by the
United States Probation Office for substance abuse, which program
may include testing to determine whether the defendant has reverted
to the use of drugs or alcohol; and (B) a condition specifying that the
defendant shall not use or possess alcohol.
(5) MENTAL HEALTH PROGRAM PARTICIPATION
If the court has reason to believe that the defendant is in need of psy-
chological or psychiatric treatment — a condition requiring that the
defendant participate in a mental health program approved by the
United States Probation Office.
(6) DEPORTATION
If (A) the defendant and the United States entered into a stipulation
of deportation pursuant to section 238(c)(5) of the Immigration and
Nationality Act (8 U.S.C. § 1228(c)(5)*); or (B) in the absence of a stip-
ulation of deportation, if, after notice and hearing pursuant to such
section, the Attorney General demonstrates by clear and convincing
evidence that the alien is deportable — a condition ordering deporta-
tion by a United States district court or a United States magistrate
judge.
*So in original. Probably should be 8 U.S.C. § 1228(d)(5).

§5B1.3
(7) SEX OFFENSES
If the instant offense of conviction is a sex offense, as defined in Ap-

plication Note 1 of the Commentary to §5D1.2 (Term of Supervised
Release)—
(A) A condition requiring the defendant to participate in a program

approved by the United States Probation Office for the treatment
and monitoring of sex offenders.
(B) A condition limiting the use of a computer or an interactive com-

puter service in cases in which the defendant used such items.
(C) A condition requiring the defendant to submit to a search, at any

time, with or without a warrant, and by any law enforcement or
probation officer, of the defendant’s person and any property,
house, residence, vehicle, papers, computer, other electronic com-
munication or data storage devices or media, and effects, upon
reasonable suspicion concerning a violation of a condition of pro-
bation or unlawful conduct by the defendant, or by any probation
officer in the lawful discharge of the officer’s supervision func-
tions.
(e) ADDITIONAL CONDITIONS (POLICY STATEMENT)
The following “special conditions” may be appropriate on a case-by-case

basis:
(1) COMMUNITY CONFINEMENT
Residence in a community treatment center, halfway house or similar

facility may be imposed as a condition of probation. See §5F1.1 (Com-
munity Confinement).
(2) HOME DETENTION
Home detention may be imposed as a condition of probation but only

as a substitute for imprisonment. See §5F1.2 (Home Detention).
(3) COMMUNITY SERVICE
Community service may be imposed as a condition of probation.

See §5F1.3 (Community Service).

§5B1.4
(4) OCCUPATIONAL RESTRICTIONS
Occupational restrictions may be imposed as a condition of probation.

See §5F1.5 (Occupational Restrictions).
(5) CURFEW
A condition imposing a curfew may be imposed if the court concludes

that restricting the defendant to his place of residence during evening
and nighttime hours is necessary to provide just punishment for the
offense, to protect the public from crimes that the defendant might
commit during those hours, or to assist in the rehabilitation of the
defendant. Electronic monitoring may be used as a means of surveil-
lance to ensure compliance with a curfew order.
(6) INTERMITTENT CONFINEMENT
Intermittent confinement (custody for intervals of time) may be or-

dered as a condition of probation during the first year of probation.
See §5F1.8 (Intermittent Confinement).
Commentary
Application Note:
1. Application of Subsection (c)(4).—Although the condition in subsection (c)(4) requires the

defendant to “answer truthfully” the questions asked by the probation officer, a defendant’s le-
gitimate invocation of the Fifth Amendment privilege against self-incrimination in response to a
probation officer’s question shall not be considered a violation of this condition.
Effective November 1, 1987. Amended effective November 1, 1989 (amendments 273, 274, and 302); Novem-
ber 1, 1997 (amendment 569); November 1, 1998 (amendment 584); November 1, 2000 (amendment 605);
Historical
November 1, 2001 (amendment 615); November 1, 2002 (amendment 644); November 1, 2004 (amend-
Note
ment 664); November 1, 2007 (amendments 701 and 711); November 1, 2009 (amendment 733); November 1,
2016 (amendment 803); November 1, 2018 (amendment 813).
§5B1.4. [Deleted]
Section 5B1.4 (Recommended Conditions of Probation and Supervised Release (Policy Statement)), effective
Historical
November 1, 1987, amended effective November 1, 1989 (amendments 271, 272, and 302), was deleted by
Note
consolidation with §§5B1.3 and 5D1.3 effective November 1, 1997 (amendment 569).

§5C1.1
PART C ― IMPRISONMENT
§5C1.1. Imposition of a Term of Imprisonment
(a) A sentence conforms with the guidelines for imprisonment if it is within

the minimum and maximum terms of the applicable guideline range.
(b) If the applicable guideline range is in Zone A of the Sentencing Table, a

sentence of imprisonment is not required, unless the applicable guideline
in Chapter Two expressly requires such a term.
(c) If the applicable guideline range is in Zone B of the Sentencing Table, the
minimum term may be satisfied by—
(1) a sentence of imprisonment; or
(2) a sentence of imprisonment that includes a term of supervised release

with a condition that substitutes community confinement or home de-
tention according to the schedule in subsection (e), provided that at
least one month is satisfied by imprisonment; or
(3) a sentence of probation that includes a condition or combination of

conditions that substitute intermittent confinement, community con-
finement, or home detention for imprisonment according to the sched-
ule in subsection (e).
(d) If the applicable guideline range is in Zone C of the Sentencing Table, the
minimum term may be satisfied by—
(1) a sentence of imprisonment; or
(2) a sentence of imprisonment that includes a term of supervised release

with a condition that substitutes community confinement or home de-
tention according to the schedule in subsection (e), provided that at
least one-half of the minimum term is satisfied by imprisonment.
(e) Schedule of Substitute Punishments:
(1) One day of intermittent confinement in prison or jail for one day of
imprisonment (each 24 hours of confinement is credited as one day of
intermittent confinement, provided, however, that one day shall be
credited for any calendar day during which the defendant is employed
in the community and confined during all remaining hours);

§5C1.1
(2) One day of community confinement (residence in a community treat-

ment center, halfway house, or similar residential facility) for one day
of imprisonment;
(3) One day of home detention for one day of imprisonment.
(f) If the applicable guideline range is in Zone D of the Sentencing Table, the
minimum term shall be satisfied by a sentence of imprisonment.
Commentary
Application Notes:
1. Subsection (a) provides that a sentence conforms with the guidelines for imprisonment if it is
within the minimum and maximum terms of the applicable guideline range specified in the Sen-
tencing Table in Part A of this Chapter. For example, if the defendant has an Offense Level of 20
and a Criminal History Category of I, the applicable guideline range is 33–41 months of impris-
onment. Therefore, a sentence of imprisonment of at least thirty-three months, but not more than
forty-one months, is within the applicable guideline range.
2. Subsection (b) provides that where the applicable guideline range is in Zone A of the Sentencing
Table (i.e., the minimum term of imprisonment specified in the applicable guideline range is zero
months), the court is not required to impose a sentence of imprisonment unless a sentence of
imprisonment or its equivalent is specifically required by the guideline applicable to the offense.
Where imprisonment is not required, the court, for example, may impose a sentence of probation.
In some cases, a fine appropriately may be imposed as the sole sanction.
3. Subsection (c) provides that where the applicable guideline range is in Zone B of the Sentencing
Table (i.e., the minimum term of imprisonment specified in the applicable guideline range is at
least one but not more than nine months), the court has three options:
(A) It may impose a sentence of imprisonment.
(B) It may impose a sentence of probation provided that it includes a condition of probation
requiring a period of intermittent confinement, community confinement, or home detention,
or combination of intermittent confinement, community confinement, and home detention,
sufficient to satisfy the minimum period of imprisonment specified in the guideline range.
For example, where the guideline range is 4–10 months, a sentence of probation with a
condition requiring at least four months of intermittent confinement, community confine-
ment, or home detention would satisfy the minimum term of imprisonment specified in the
guideline range.
(C) Or, it may impose a sentence of imprisonment that includes a term of supervised release
with a condition that requires community confinement or home detention. In such case, at
least one month must be satisfied by actual imprisonment and the remainder of the mini-
mum term specified in the guideline range must be satisfied by community confinement or
home detention. For example, where the guideline range is 4–10 months, a sentence of im-
prisonment of one month followed by a term of supervised release with a condition requiring
three months of community confinement or home detention would satisfy the minimum
term of imprisonment specified in the guideline range.
The preceding examples illustrate sentences that satisfy the minimum term of imprisonment
required by the guideline range. The court, of course, may impose a sentence at a higher point
within the applicable guideline range. For example, where the guideline range is 4–10 months,

§5C1.1
both a sentence of probation with a condition requiring six months of community confinement or
home detention (under subsection (c)(3)) and a sentence of two months imprisonment followed
by a term of supervised release with a condition requiring four months of community confinement
or home detention (under subsection (c)(2)) would be within the guideline range.
4. If the defendant is a nonviolent first offender and the applicable guideline range is in Zone A or B
of the Sentencing Table, the court should consider imposing a sentence other than a sentence of
imprisonment, in accordance with subsection (b) or (c)(3). See 28 U.S.C. § 994(j). For purposes of
this application note, a “nonviolent first offender” is a defendant who has no prior convictions
or other comparable judicial dispositions of any kind and who did not use violence or credible
threats of violence or possess a firearm or other dangerous weapon in connection with the offense
of conviction. The phrase “comparable judicial dispositions of any kind” includes diversionary or
deferred dispositions resulting from a finding or admission of guilt or a plea of nolo contendere
and juvenile adjudications.
5. Subsection (d) provides that where the applicable guideline range is in Zone C of the Sentencing
Table (i.e., the minimum term specified in the applicable guideline range is ten or twelve
months), the court has two options:
(A) It may impose a sentence of imprisonment.
(B) Or, it may impose a sentence of imprisonment that includes a term of supervised release
with a condition requiring community confinement or home detention. In such case, at least
one-half of the minimum term specified in the guideline range must be satisfied by impris-
onment, and the remainder of the minimum term specified in the guideline range must be
satisfied by community confinement or home detention. For example, where the guideline
range is 10–16 months, a sentence of five months imprisonment followed by a term of su-
pervised release with a condition requiring five months community confinement or home
detention would satisfy the minimum term of imprisonment required by the guideline
range.
The preceding example illustrates a sentence that satisfies the minimum term of imprisonment
required by the guideline range. The court, of course, may impose a sentence at a higher point
within the guideline range. For example, where the guideline range is 10–16 months, both a
sentence of five months imprisonment followed by a term of supervised release with a condition
requiring six months of community confinement or home detention (under subsection (d)), and a
sentence of ten months imprisonment followed by a term of supervised release with a condition
requiring four months of community confinement or home detention (also under subsection (d))
would be within the guideline range.
6. Subsection (e) sets forth a schedule of imprisonment substitutes.
7. There may be cases in which a departure from the sentencing options authorized for Zone C of
the Sentencing Table (under which at least half the minimum term must be satisfied by impris-
onment) to the sentencing options authorized for Zone B of the Sentencing Table (under which
all or most of the minimum term may be satisfied by intermittent confinement, community con-
finement, or home detention instead of imprisonment) is appropriate to accomplish a specific
treatment purpose. Such a departure should be considered only in cases where the court finds
that (A) the defendant is an abuser of narcotics, other controlled substances, or alcohol, or suffers
from a significant mental illness, and (B) the defendant’s criminality is related to the treatment
problem to be addressed.
In determining whether such a departure is appropriate, the court should consider, among other
things, (1) the likelihood that completion of the treatment program will successfully address the

§5C1.2
treatment problem, thereby reducing the risk to the public from further crimes of the defendant,
and (2) whether imposition of less imprisonment than required by Zone C will increase the risk
to the public from further crimes of the defendant.
Examples: The following examples both assume the applicable guideline range is 12–18 months
and the court departs in accordance with this application note. Under Zone C rules, the defendant
must be sentenced to at least six months imprisonment. (1) The defendant is a nonviolent drug
offender in Criminal History Category I and probation is not prohibited by statute. The court
departs downward to impose a sentence of probation, with twelve months of intermittent con-
finement, community confinement, or home detention and participation in a substance abuse
treatment program as conditions of probation. (2) The defendant is convicted of a Class A or B
felony, so probation is prohibited by statute (see §5B1.1(b)). The court departs downward to im-
pose a sentence of one month imprisonment, with eleven months in community confinement or
home detention and participation in a substance abuse treatment program as conditions of su-
pervised release.
8. The use of substitutes for imprisonment as provided in subsections (c) and (d) is not recom-
mended for most defendants with a criminal history category of III or above.
9. In a case in which community confinement in a residential treatment program is imposed to

accomplish a specific treatment purpose, the court should consider the effectiveness of the resi-
dential treatment program.
10. Subsection (f) provides that, where the applicable guideline range is in Zone D of the Sentencing
Table (i.e., the minimum term of imprisonment specified in the applicable guideline range is
15 months or more), the minimum term must be satisfied by a sentence of imprisonment without
the use of any of the imprisonment substitutes in subsection (e).
Effective November 1, 1987. Amended effective January 15, 1988 (amendment 51); November 1, 1989
Historical (amendments 271, 275, and 302); November 1, 1992 (amendment 462); November 1, 2002 (amendment 646);
Note November 1, 2009 (amendment 733); November 1, 2010 (amendment 738); November 1, 2018 (amend-
ment 811).
§5C1.2. Limitation on Applicability of Statutory Minimum Sentences in Certain

Cases
(a) Except as provided in subsection (b), in the case of an offense under

21 U.S.C. § 841, § 844, § 846, § 960, or § 963, the court shall impose a sen-
tence in accordance with the applicable guidelines without regard to any
statutory minimum sentence, if the court finds that the defendant meets
the criteria in 18 U.S.C. § 3553(f)(1)–(5) set forth below:
(1) the defendant does not have more than 1 criminal history point, as
determined under the sentencing guidelines before application of sub-
section (b) of §4A1.3 (Departures Based on Inadequacy of Criminal
History Category);

§5C1.2
(2) the defendant did not use violence or credible threats of violence or
possess a firearm or other dangerous weapon (or induce another par-
ticipant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any per-
son;
(4) the defendant was not an organizer, leader, manager, or supervisor of

others in the offense, as determined under the sentencing guidelines
and was not engaged in a continuing criminal enterprise, as defined
in 21 U.S.C. § 848; and
(5) not later than the time of the sentencing hearing, the defendant has
truthfully provided to the Government all information and evidence
the defendant has concerning the offense or offenses that were part of
the same course of conduct or of a common scheme or plan, but the
fact that the defendant has no relevant or useful other information to
provide or that the Government is already aware of the information
shall not preclude a determination by the court that the defendant
has complied with this requirement.
(b) In the case of a defendant (1) who meets the criteria set forth in subsec-
tion (a); and (2) for whom the statutorily required minimum sentence is at
least five years, the offense level applicable from Chapters Two (Offense
Conduct) and Three (Adjustments) shall be not less than level 17.
Commentary
Application Notes:
1. “More than 1 criminal history point, as determined under the sentencing guidelines,” as
used in subsection (a)(1), means more than one criminal history point as determined under
§4A1.1 (Criminal History Category) before application of subsection (b) of §4A1.3 (Departures
Based on Inadequacy of Criminal History Category).
2. “Dangerous weapon” and “firearm,” as used in subsection (a)(2), and “serious bodily injury,”
as used in subsection (a)(3), are defined in the Commentary to §1B1.1 (Application Instructions).
3. “Offense,” as used in subsection (a)(2)–(4), and “offense or offenses that were part of the
same course of conduct or of a common scheme or plan,” as used in subsection (a)(5), mean
the offense of conviction and all relevant conduct.
4. Consistent with §1B1.3 (Relevant Conduct), the term “defendant,” as used in subsection (a)(2),
limits the accountability of the defendant to his own conduct and conduct that he aided or abet-
ted, counseled, commanded, induced, procured, or willfully caused.
5. “Organizer, leader, manager, or supervisor of others in the offense, as determined under

the sentencing guidelines,” as used in subsection (a)(4), means a defendant who receives an
adjustment for an aggravating role under §3B1.1 (Aggravating Role).

§5C1.2
6. “Engaged in a continuing criminal enterprise,” as used in subsection (a)(4), is defined in

21 U.S.C. § 848(c). As a practical matter, it should not be necessary to apply this prong of sub-
section (a)(4) because (i) this section does not apply to a conviction under 21 U.S.C. § 848, and
(ii) any defendant who “engaged in a continuing criminal enterprise” but is convicted of an offense
to which this section applies will be an “organizer, leader, manager, or supervisor of others in the
offense.”
7. Information disclosed by the defendant with respect to subsection (a)(5) may be considered in
determining the applicable guideline range, except where the use of such information is re-
stricted under the provisions of §1B1.8 (Use of Certain Information). That is, subsection (a)(5)
does not provide an independent basis for restricting the use of information disclosed by the
defendant.
8. Under 18 U.S.C. § 3553(f), prior to its determination, the court shall afford the government an
opportunity to make a recommendation. See also Fed. R. Crim. P. 32(f), (i).
9. A defendant who meets the criteria under this section is exempt from any otherwise applicable
statutory minimum sentence of imprisonment and statutory minimum term of supervised re-
lease.
Background: This section sets forth the relevant provisions of 18 U.S.C. § 3553(f), as added by sec-
tion 80001(a) of the Violent Crime Control and Law Enforcement Act of 1994, which limit the applica-
bility of statutory minimum sentences in certain cases. Under the authority of section 80001(b) of that
Act, the Commission has promulgated application notes to provide guidance in the application of
18 U.S.C. § 3553(f). See also H. Rep. No. 460, 103d Cong., 2d Sess. 3 (1994) (expressing intent to foster
greater coordination between mandatory minimum sentencing and the sentencing guideline system).
Effective September 23, 1994 (amendment 509). Amended effective November 1, 1995 (amendment 515);
Historical November 1, 1996 (amendment 540); November 1, 1997 (amendment 570); November 1, 2001 (amend-
Note ment 624); October 27, 2003 (amendment 651); November 1, 2004 (amendment 674); November 1, 2009
(amendment 736).

§5D1.1
PART D ― SUPERVISED RELEASE
§5D1.1. Imposition of a Term of Supervised Release
(a) The court shall order a term of supervised release to follow imprison-
ment—
(1) when required by statute (see 18 U.S.C. § 3583(a)); or
(2) except as provided in subsection (c), when a sentence of imprisonment

of more than one year is imposed.
(b) The court may order a term of supervised release to follow imprisonment
in any other case. See 18 U.S.C. § 3583(a).
(c) The court ordinarily should not impose a term of supervised release in a
case in which supervised release is not required by statute and the defend-
ant is a deportable alien who likely will be deported after imprisonment.
Commentary
Application Notes:
1. Application of Subsection (a).—Under subsection (a), the court is required to impose a term
of supervised release to follow imprisonment when supervised release is required by statute or,
except as provided in subsection (c), when a sentence of imprisonment of more than one year is
imposed. The court may depart from this guideline and not impose a term of supervised release
if supervised release is not required by statute and the court determines, after considering the
factors set forth in Note 3, that supervised release is not necessary.
2. Application of Subsection (b).—Under subsection (b), the court may impose a term of super-
vised release to follow a term of imprisonment in any other case, after considering the factors set
forth in Note 3.
3. Factors to Be Considered.—
(A) Statutory Factors.—In determining whether to impose a term of supervised release, the
court is required by statute to consider, among other factors:
(i) the nature and circumstances of the offense and the history and characteristics of the
defendant;
(ii) the need to afford adequate deterrence to criminal conduct, to protect the public from
further crimes of the defendant, and to provide the defendant with needed educational
or vocational training, medical care, or other correctional treatment in the most effec-
tive manner;
(iii) the need to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct; and

§5D1.2
(iv) the need to provide restitution to any victims of the offense.
See 18 U.S.C. § 3583(c).
(B) Criminal History.—The court should give particular consideration to the defendant’s
criminal history (which is one aspect of the “history and characteristics of the defendant”
in subparagraph (A)(i), above). In general, the more serious the defendant’s criminal his-
tory, the greater the need for supervised release.
(C) Substance Abuse.—In a case in which a defendant sentenced to imprisonment is an

abuser of controlled substances or alcohol, it is highly recommended that a term of super-
vised release also be imposed. See §5H1.4 (Physical Condition, Including Drug or Alcohol
Dependence or Abuse; Gambling Addiction).
(D) Domestic Violence.—If the defendant is convicted for the first time of a domestic violence
crime as defined in 18 U.S.C. § 3561(b), a term of supervised release is required by statute.
See 18 U.S.C. § 3583(a). Such a defendant is also required by statute to attend an approved
rehabilitation program, if available within a 50-mile radius of the legal residence of the
defendant. See 18 U.S.C. § 3583(d); §5D1.3(a)(3). In any other case involving domestic vio-
lence or stalking in which the defendant is sentenced to imprisonment, it is highly recom-
mended that a term of supervised release also be imposed.
4. Community Confinement or Home Detention Following Imprisonment.—A term of su-

pervised release must be imposed if the court wishes to impose a “split sentence” under which
the defendant serves a term of imprisonment followed by a period of community confinement or
home detention pursuant to subsection (c)(2) or (d)(2) of §5C1.1 (Imposition of a Term of Impris-
onment). In such a case, the period of community confinement or home detention is imposed as
a condition of supervised release.
5. Application of Subsection (c).—In a case in which the defendant is a deportable alien speci-
fied in subsection (c) and supervised release is not required by statute, the court ordinarily should
not impose a term of supervised release. Unless such a defendant legally returns to the United
States, supervised release is unnecessary. If such a defendant illegally returns to the United
States, the need to afford adequate deterrence and protect the public ordinarily is adequately
served by a new prosecution. The court should, however, consider imposing a term of supervised
release on such a defendant if the court determines it would provide an added measure of deter-
rence and protection based on the facts and circumstances of a particular case.
Effective November 1, 1987. Amended effective November 1, 1989 (amendment 302); November 1, 1995
Historical
(amendment 529); November 1, 2010 (amendment 747); November 1, 2011 (amendment 756); November 1,
Note
2014 (amendment 781).
§5D1.2. Term of Supervised Release
(a) Except as provided in subsections (b) and (c), if a term of supervised release is
ordered, the length of the term shall be:
(1) At least two years but not more than five years for a defendant convicted
of a Class A or B felony. See 18 U.S.C. § 3583(b)(1).

§5D1.2
(2) At least one year but not more than three years for a defendant convicted
of a Class C or D felony. See 18 U.S.C. § 3583(b)(2).
(3) One year for a defendant convicted of a Class E felony or a Class A mis-
demeanor. See 18 U.S.C. § 3583(b)(3).
(b) Notwithstanding subdivisions (a)(1) through (3), the length of the term of su-
pervised release shall be not less than the minimum term of years specified
for the offense under subdivisions (a)(1) through (3) and may be up to life, if
the offense is—
(1) any offense listed in 18 U.S.C. § 2332b(g)(5)(B), the commission of which

resulted in, or created a foreseeable risk of, death or serious bodily injury
to another person; or
(2) a sex offense.
(Policy Statement) If the instant offense of conviction is a sex offense, however,

the statutory maximum term of supervised release is recommended.
(c) The term of supervised release imposed shall be not less than any statutorily
required term of supervised release.
Commentary
Application Notes:
1. Definitions.—For purposes of this guideline:
“Sex offense” means (A) an offense, perpetrated against a minor, under (i) chapter 109A of ti-
tle 18, United States Code; (ii) chapter 110 of such title, not including a recordkeeping offense;
(iii) chapter 117 of such title, not including transmitting information about a minor or filing a
factual statement about an alien individual; (iv) an offense under 18 U.S.C. § 1201; or (v) an
offense under 18 U.S.C. § 1591; or (B) an attempt or a conspiracy to commit any offense described
in subdivisions (A)(i) through (v) of this note. Such term does not include an offense under
18 U.S.C. § 2250 (Failure to register).
“Minor” means (A) an individual who had not attained the age of 18 years; (B) an individual,
whether fictitious or not, who a law enforcement officer represented to a participant (i) had not
attained the age of 18 years; and (ii) could be provided for the purposes of engaging in sexually
explicit conduct; or (C) an undercover law enforcement officer who represented to a participant
that the officer had not attained the age of 18 years.
2. Safety Valve Cases.—A defendant who qualifies under §5C1.2 (Limitation on Applicability of
Statutory Minimum Sentence in Certain Cases) is not subject to any statutory minimum sen-
tence of supervised release. See 18 U.S.C. § 3553(f). In such a case, the term of supervised release
shall be determined under subsection (a).
3. Substantial Assistance Cases.—Upon motion of the Government, a defendant who has pro-
vided substantial assistance in the investigation or prosecution of another person who has com-
mitted an offense may be sentenced to a term of supervised release that is less than any minimum
required by statute or the guidelines. See 18 U.S.C. § 3553(e), §5K1.1 (Substantial Assistance to
Authorities).

§5D1.2
4. Factors Considered.—The factors to be considered in determining the length of a term of su-

pervised release are the same as the factors considered in determining whether to impose such
a term. See 18 U.S.C. § 3583(c); Application Note 3 to §5D1.1 (Imposition of a Term of Supervised
Release). The court should ensure that the term imposed on the defendant is long enough to
address the purposes of imposing supervised release on the defendant.
5. Early Termination and Extension.—The court has authority to terminate or extend a term
of supervised release. See 18 U.S.C. § 3583(e)(1), (2). The court is encouraged to exercise this
authority in appropriate cases. The prospect of exercising this authority is a factor the court may
wish to consider in determining the length of a term of supervised release. For example, the court
may wish to consider early termination of supervised release if the defendant is an abuser of
narcotics, other controlled substances, or alcohol who, while on supervised release, successfully
completes a treatment program, thereby reducing the risk to the public from further crimes of
the defendant.
6. Application of Subsection (c).—Subsection (c) specifies how a statutorily required minimum

term of supervised release may affect the minimum term of supervised release provided by the
guidelines.
For example, if subsection (a) provides a range of two years to five years, but the relevant statute
requires a minimum term of supervised release of three years and a maximum term of life, the
term of supervised release provided by the guidelines is restricted by subsection (c) to three years
to five years. Similarly, if subsection (a) provides a range of two years to five years, but the rele-
vant statute requires a minimum term of supervised release of five years and a maximum term
of life, the term of supervised release provided by the guidelines is five years.
The following example illustrates the interaction of subsections (a) and (c) when subsection (b) is
also involved. In this example, subsection (a) provides a range of two years to five years; the
relevant statute requires a minimum term of supervised release of five years and a maximum
term of life; and the offense is a sex offense under subsection (b). The effect of subsection (b) is to
raise the maximum term of supervised release from five years (as provided by subsection (a)) to
life, yielding a range of two years to life. The term of supervised release provided by the guide-
lines is then restricted by subsection (c) to five years to life. In this example, a term of supervised
release of more than five years would be a guideline sentence. In addition, subsection (b) contains
a policy statement recommending that the maximum — a life term of supervised release — be
imposed.
Background: This section specifies the length of a term of supervised release that is to be imposed.
Subsection (c) applies to statutes, such as the Anti-Drug Abuse Act of 1986, that require imposition of
a specific minimum term of supervised release.
Historical
2001 (amendment 615); November 1, 2002 (amendments 637 and 646); November 1, 2004 (amendment 664);
Note
November 1, 2005 (amendment 679); November 1, 2007 (amendment 701); November 1, 2009 (amend-
ment 736); November 1, 2011 (amendment 756); November 1, 2014 (amendment 786).

§5D1.3
§5D1.3. Conditions of Supervised Release
(a) MANDATORY CONDITIONS
(1) The defendant shall not commit another federal, state or local offense
(see 18 U.S.C. § 3583(d)).
(2) The defendant shall not unlawfully possess a controlled substance

(see 18 U.S.C. § 3583(d)).
(3) The defendant who is convicted for a domestic violence crime as de-
fined in 18 U.S.C. § 3561(b) for the first time shall attend a public,
private, or private non-profit offender rehabilitation program that has
been approved by the court, in consultation with a State Coalition
Against Domestic Violence or other appropriate experts, if an ap-
proved program is available within a 50-mile radius of the legal resi-
dence of the defendant (see 18 U.S.C. § 3583(d)).
(4) The defendant shall refrain from any unlawful use of a controlled sub-
stance and submit to one drug test within 15 days of release on super-
vised release and at least two periodic drug tests thereafter (as deter-
mined by the court) for use of a controlled substance, but the condition
stated in this paragraph may be ameliorated or suspended by the
court for any individual defendant if the defendant’s presentence re-
port or other reliable information indicates a low risk of future sub-
stance abuse by the defendant (see 18 U.S.C. § 3583(d)).
(5) If a fine is imposed and has not been paid upon release to supervised
release, the defendant shall adhere to an installment schedule to pay
that fine (see 18 U.S.C. § 3624(e)).
(6) The defendant shall (A) make restitution in accordance with 18 U.S.C.
§§ 3663 and 3663A, or any other statute authorizing a sentence of res-
titution; and (B) pay the assessment imposed in accordance with
18 U.S.C. § 3013. If there is a court-established payment schedule for
making restitution or paying the assessment (see 18 U.S.C. § 3572(d)),
the defendant shall adhere to the schedule.
(7) If the defendant is required to register under the Sex Offender Regis-
tration and Notification Act, the defendant shall comply with the re-
quirements of that Act (see 18 U.S.C. § 3583(d)).
(8) The defendant shall submit to the collection of a DNA sample from
the defendant at the direction of the United States Probation Office if
the collection of such a sample is authorized pursuant to section 3 of

§5D1.3
the DNA Analysis Backlog Elimination Act of 2000 (34 U.S.C.

§ 40702).
(b) DISCRETIONARY CONDITIONS
The court may impose other conditions of supervised release to the extent
that such conditions (1) are reasonably related to (A) the nature and cir-
cumstances of the offense and the history and characteristics of the defend-
ant; (B) the need for the sentence imposed to afford adequate deterrence to
criminal conduct; (C) the need to protect the public from further crimes of
the defendant; and (D) the need to provide the defendant with needed ed-
ucational or vocational training, medical care, or other correctional treat-
ment in the most effective manner; and (2) involve no greater deprivation
of liberty than is reasonably necessary for the purposes set forth above and
are consistent with any pertinent policy statements issued by the Sentenc-
ing Commission.
(c) “STANDARD” CONDITIONS (POLICY STATEMENT)
The following “standard” conditions are recommended for supervised re-

lease. Several of the conditions are expansions of the conditions required
by statute:
(1) The defendant shall report to the probation office in the federal judi-
cial district where he or she is authorized to reside within 72 hours of
release from imprisonment, unless the probation officer instructs the
defendant to report to a different probation office or within a different
time frame.
(2) After initially reporting to the probation office, the defendant will re-
ceive instructions from the court or the probation officer about how
and when to report to the probation officer, and the defendant shall
report to the probation officer as instructed.
(3) The defendant shall not knowingly leave the federal judicial district
where he or she is authorized to reside without first getting permis-
sion from the court or the probation officer.
(4) The defendant shall answer truthfully the questions asked by the pro-
bation officer.
(5) The defendant shall live at a place approved by the probation officer.
If the defendant plans to change where he or she lives or anything
about his or her living arrangements (such as the people the defend-
ant lives with), the defendant shall notify the probation officer at least
10 days before the change. If notifying the probation officer at least
10 days in advance is not possible due to unanticipated circumstances,

§5D1.3
the defendant shall notify the probation officer within 72 hours of be-
coming aware of a change or expected change.
(6) The defendant shall allow the probation officer to visit the defendant
at any time at his or her home or elsewhere, and the defendant shall
permit the probation officer to take any items prohibited by the con-
ditions of the defendant’s supervision that he or she observes in plain
view.
(7) The defendant shall work full time (at least 30 hours per week) at a
lawful type of employment, unless the probation officer excuses the
defendant from doing so. If the defendant does not have full-time em-
ployment he or she shall try to find full-time employment, unless the
probation officer excuses the defendant from doing so. If the defendant
plans to change where the defendant works or anything about his or
her work (such as the position or the job responsibilities), the defend-
ant shall notify the probation officer at least 10 days before the
change. If notifying the probation officer in advance is not possible
due to unanticipated circumstances, the defendant shall notify the
probation officer within 72 hours of becoming aware of a change or
expected change.
(8) The defendant shall not communicate or interact with someone the
defendant knows is engaged in criminal activity. If the defendant
knows someone has been convicted of a felony, the defendant shall not
knowingly communicate or interact with that person without first get-
ting the permission of the probation officer.
(9) If the defendant is arrested or questioned by a law enforcement of-

ficer, the defendant shall notify the probation officer within 72 hours.
(10) The defendant shall not own, possess, or have access to a firearm, am-
munition, destructive device, or dangerous weapon (i.e., anything that
was designed, or was modified for, the specific purpose of causing bod-
ily injury or death to another person, such as nunchakus or tasers).
(11) The defendant shall not act or make any agreement with a law en-
forcement agency to act as a confidential human source or informant
without first getting the permission of the court.
(12) If the probation officer determines that the defendant poses a risk to
another person (including an organization), the probation officer may
require the defendant to notify the person about the risk and the de-
fendant shall comply with that instruction. The probation officer may
contact the person and confirm that the defendant has notified the
person about the risk.

§5D1.3
(13) The defendant shall follow the instructions of the probation officer re-
lated to the conditions of supervision.
(d) “SPECIAL” CONDITIONS (POLICY STATEMENT)
The following “special” conditions of supervised release are recommended

in the circumstances described and, in addition, may otherwise be appro-
priate in particular cases:
(1) SUPPORT OF DEPENDENTS
(A) If the defendant has one or more dependents — a condition spec-

ifying that the defendant shall support his or her dependents.
(B) If the defendant is ordered by the government to make child sup-

port payments or to make payments to support a person caring
for a child — a condition specifying that the defendant shall make
the payments and comply with the other terms of the order.
(2) DEBT OBLIGATIONS
If an installment schedule of payment of restitution or a fine is im-

posed — a condition prohibiting the defendant from incurring new
credit charges or opening additional lines of credit without approval
of the probation officer unless the defendant is in compliance with the
payment schedule.
(3) ACCESS TO FINANCIAL INFORMATION
If the court imposes an order of restitution, forfeiture, or notice to vic-

tims, or orders the defendant to pay a fine — a condition requiring the
defendant to provide the probation officer access to any requested fi-
nancial information.
(4) SUBSTANCE ABUSE
If the court has reason to believe that the defendant is an abuser of

narcotics, other controlled substances or alcohol — (A) a condition re-
quiring the defendant to participate in a program approved by the
United States Probation Office for substance abuse, which program
may include testing to determine whether the defendant has reverted
to the use of drugs or alcohol; and (B) a condition specifying that the
defendant shall not use or possess alcohol.

§5D1.3
(5) MENTAL HEALTH PROGRAM PARTICIPATION
If the court has reason to believe that the defendant is in need of psy-
chological or psychiatric treatment — a condition requiring that the
defendant participate in a mental health program approved by the
United States Probation Office.
(6) DEPORTATION
If (A) the defendant and the United States entered into a stipulation
of deportation pursuant to section 238(c)(5) of the Immigration and
Nationality Act (8 U.S.C. § 1228(c)(5)*); or (B) in the absence of a stip-
ulation of deportation, if, after notice and hearing pursuant to such
section, the Attorney General demonstrates by clear and convincing
evidence that the alien is deportable — a condition ordering deporta-
tion by a United States district court or a United States magistrate
judge.
*So in original. Probably should be 8 U.S.C. § 1228(d)(5).
(7) SEX OFFENSES
If the instant offense of conviction is a sex offense, as defined in Ap-

plication Note 1 of the Commentary to §5D1.2 (Term of Supervised
Release) —
(A) A condition requiring the defendant to participate in a program

approved by the United States Probation Office for the treatment
and monitoring of sex offenders.
(B) A condition limiting the use of a computer or an interactive com-

puter service in cases in which the defendant used such items.
(C) A condition requiring the defendant to submit to a search, at any

time, with or without a warrant, and by any law enforcement or
probation officer, of the defendant’s person and any property,
house, residence, vehicle, papers, computer, other electronic com-
munication or data storage devices or media, and effects upon
reasonable suspicion concerning a violation of a condition of su-
pervised release or unlawful conduct by the defendant, or by any
probation officer in the lawful discharge of the officer’s supervi-
sion functions.
(8) UNPAID RESTITUTION, FINES, OR SPECIAL ASSESSMENTS
If the defendant has any unpaid amount of restitution, fines, or spe-

cial assessments, the defendant shall notify the probation officer of

§5D1.3
any material change in the defendant’s economic circumstances that

might affect the defendant’s ability to pay.
(e) ADDITIONAL CONDITIONS (POLICY STATEMENT)
The following “special conditions” may be appropriate on a case-by-case

basis:
(1) COMMUNITY CONFINEMENT
Residence in a community treatment center, halfway house or similar

facility may be imposed as a condition of supervised release.
See §5F1.1 (Community Confinement).
(2) HOME DETENTION
Home detention may be imposed as a condition of supervised release,

but only as a substitute for imprisonment. See §5F1.2 (Home Deten-
tion).
(3) COMMUNITY SERVICE
Community service may be imposed as a condition of supervised re-

lease. See §5F1.3 (Community Service).
(4) OCCUPATIONAL RESTRICTIONS
Occupational restrictions may be imposed as a condition of supervised

release. See §5F1.5 (Occupational Restrictions).
(5) CURFEW
A condition imposing a curfew may be imposed if the court concludes

that restricting the defendant to his place of residence during evening
and nighttime hours is necessary to protect the public from crimes
that the defendant might commit during those hours, or to assist in
the rehabilitation of the defendant. Electronic monitoring may be
used as a means of surveillance to ensure compliance with a curfew
order.
(6) INTERMITTENT CONFINEMENT
Intermittent confinement (custody for intervals of time) may be or-

dered as a condition of supervised release during the first year of su-
pervised release, but only for a violation of a condition of supervised
release in accordance with 18 U.S.C. § 3583(e)(2) and only when facil-
ities are available. See §5F1.8 (Intermittent Confinement).

§5D1.3
Commentary
Application Note:
1. Application of Subsection (c)(4).—Although the condition in subsection (c)(4) requires the

defendant to “answer truthfully” the questions asked by the probation officer, a defendant’s le-
gitimate invocation of the Fifth Amendment privilege against self-incrimination in response to a
probation officer’s question shall not be considered a violation of this condition.
Effective November 1, 1987. Amended effective November 1, 1989 (amendments 276, 277, and 302); Novem-
ber 1, 1997 (amendment 569); November 1, 1998 (amendment 584); November 1, 2000 (amendment 605);
Historical
November 1, 2001 (amendment 615); November 1, 2002 (amendments 644 and 646); November 1, 2004
Note
(amendment 664); November 1, 2007 (amendments 701 and 711); November 1, 2009 (amendment 733); No-
vember 1, 2016 (amendment 803); November 1, 2018 (amendments 812 and 813).

§5E1.1
PART E ― RESTITUTION, FINES, ASSESSMENTS, FORFEITURES
§5E1.1. Restitution
(a) In the case of an identifiable victim, the court shall—
(1) enter a restitution order for the full amount of the victim’s loss, if such
order is authorized under 18 U.S.C. § 1593, § 2248, § 2259, § 2264,
§ 2327, § 3663, or § 3663A, or 21 U.S.C. § 853(q); or
(2) impose a term of probation or supervised release with a condition re-

quiring restitution for the full amount of the victim’s loss, if the of-
fense is not an offense for which restitution is authorized under
18 U.S.C. § 3663(a)(1) but otherwise meets the criteria for an order of
restitution under that section.
(b) Provided, that the provisions of subsection (a) do not apply—
(1) when full restitution has been made; or
(2) in the case of a restitution order under 18 U.S.C. § 3663; a restitution

order under 18 U.S.C. § 3663A that pertains to an offense against
property described in 18 U.S.C. § 3663A(c)(1)(A)(ii); or a condition of
restitution imposed pursuant to subsection (a)(2) above, to the extent
the court finds, from facts on the record, that (A) the number of iden-
tifiable victims is so large as to make restitution impracticable; or
(B) determining complex issues of fact related to the cause or amount
of the victim’s losses would complicate or prolong the sentencing pro-
cess to a degree that the need to provide restitution to any victim is
outweighed by the burden on the sentencing process.
(c) If a defendant is ordered to make restitution to an identifiable victim and

to pay a fine, the court shall order that any money paid by the defendant
shall first be applied to satisfy the order of restitution.
(d) In a case where there is no identifiable victim and the defendant was con-
victed under 21 U.S.C. § 841, § 848(a), § 849, § 856, § 861, or § 863, the
court, taking into consideration the amount of public harm caused by the
offense and other relevant factors, shall order an amount of community
restitution not to exceed the fine imposed under §5E1.2.
(e) A restitution order may direct the defendant to make a single, lump sum
payment, partial payments at specified intervals, in-kind payments, or a
combination of payments at specified intervals and in-kind payments.
See 18 U.S.C. § 3664(f)(3)(A). An in-kind payment may be in the form of

§5E1.1
(1) return of property; (2) replacement of property; or (3) if the victim

agrees, services rendered to the victim or to a person or organization other
than the victim. See 18 U.S.C. § 3664(f)(4).
(f) A restitution order may direct the defendant to make nominal periodic pay-
ments if the court finds from facts on the record that the economic circum-
stances of the defendant do not allow the payment of any amount of a res-
titution order and do not allow for the payment of the full amount of a
restitution order in the foreseeable future under any reasonable schedule
of payments.
(g) Special Instruction
(1) This guideline applies only to a defendant convicted of an offense com-

mitted on or after November 1, 1997. Notwithstanding the provisions
of §1B1.11 (Use of Guidelines Manual in Effect on Date of Sentenc-
ing), use the former §5E1.1 (set forth in Appendix C, amendment 571)
in lieu of this guideline in any other case.
Commentary
Application Note:
1. The court shall not order community restitution under subsection (d) if it appears likely that
such an award would interfere with a forfeiture under Chapter 46 or 96 of Title 18, United States
Code, or under the Controlled Substances Act (21 U.S.C. § 801 et seq.). See 18 U.S.C. § 3663(c)(4).
Furthermore, a penalty assessment under 18 U.S.C. § 3013 or a fine under Subchapter C of

Chapter 227 of Title 18, United States Code, shall take precedence over an order of community
restitution under subsection (d). See 18 U.S.C. § 3663(c)(5).
Background: Section 3553(a)(7) of Title 18, United States Code, requires the court, “in determining
the particular sentence to be imposed,” to consider “the need to provide restitution to any victims of
the offense.” Orders of restitution are authorized under 18 U.S.C. §§ 1593, 2248, 2259, 2264, 2327,
3663, and 3663A, and 21 U.S.C. § 853(q). For offenses for which an order of restitution is not author-
ized, restitution may be imposed as a condition of probation or supervised release.
Subsection (d) implements the instruction to the Commission in section 205 of the Antiterrorism
and Effective Death Penalty Act of 1996. This provision directs the Commission to develop guidelines
for community restitution in connection with certain drug offenses where there is no identifiable victim
but the offense causes “public harm.”
To the extent that any of the above-noted statutory provisions conflict with the provisions of this
guideline, the applicable statutory provision shall control.
Historical (amendments 278, 279, and 302); November 1, 1991 (amendment 383); November 1, 1993 (amendment 501);
Note November 1, 1995 (amendment 530); November 1, 1997 (amendment 571); May 1, 2001 (amendment 612);
November 1, 2001 (amendment 627).

§5E1.2
§5E1.2. Fines for Individual Defendants
(a) The court shall impose a fine in all cases, except where the defendant es-
tablishes that he is unable to pay and is not likely to become able to pay
any fine.
(b) The applicable fine guideline range is that specified in subsection (c) below.
If, however, the guideline for the offense in Chapter Two provides a specific
rule for imposing a fine, that rule takes precedence over subsection (c) of
this section.
(c) (1) The minimum of the fine guideline range is the amount shown in col-
umn A of the table below.
(2) Except as specified in (4) below, the maximum of the fine guideline
range is the amount shown in column B of the table below.
(3) FINE TABLE
OFFENSE A B
LEVEL MINIMUM MAXIMUM
3 and below $200 $9,500
4–5 $500 $9,500
6–7 $1,000 $9,500
8–9 $2,000 $20,000
10–11 $4,000 $40,000
12–13 $5,500 $55,000
14–15 $7,500 $75,000
16–17 $10,000 $95,000
18–19 $10,000 $100,000
20–22 $15,000 $150,000
23–25 $20,000 $200,000
26–28 $25,000 $250,000
29–31 $30,000 $300,000
32–34 $35,000 $350,000
35–37 $40,000 $400,000
38 and above $50,000 $500,000.
(4) Subsection (c)(2), limiting the maximum fine, does not apply if the de-
fendant is convicted under a statute authorizing (A) a maximum fine
greater than $500,000, or (B) a fine for each day of violation. In such
cases, the court may impose a fine up to the maximum authorized by
the statute.

§5E1.2
(d) In determining the amount of the fine, the court shall consider:
(1) the need for the combined sentence to reflect the seriousness of the
offense (including the harm or loss to the victim and the gain to the
defendant), to promote respect for the law, to provide just punishment
and to afford adequate deterrence;
(2) any evidence presented as to the defendant’s ability to pay the fine
(including the ability to pay over a period of time) in light of his earn-
ing capacity and financial resources;
(3) the burden that the fine places on the defendant and his dependents
relative to alternative punishments;
(4) any restitution or reparation that the defendant has made or is obli-
gated to make;
(5) any collateral consequences of conviction, including civil obligations

arising from the defendant’s conduct;
(6) whether the defendant previously has been fined for a similar offense;
(7) the expected costs to the government of any term of probation, or term
of imprisonment and term of supervised release imposed; and
(8) any other pertinent equitable considerations.
The amount of the fine should always be sufficient to ensure that the fine,
taken together with other sanctions imposed, is punitive.
(e) If the defendant establishes that (1) he is not able and, even with the use
of a reasonable installment schedule, is not likely to become able to pay all
or part of the fine required by the preceding provisions, or (2) imposition
of a fine would unduly burden the defendant’s dependents, the court may
impose a lesser fine or waive the fine. In these circumstances, the court
shall consider alternative sanctions in lieu of all or a portion of the fine,
and must still impose a total combined sanction that is punitive. Although
any additional sanction not proscribed by the guidelines is permissible,
community service is the generally preferable alternative in such in-
stances.
(f) If the defendant establishes that payment of the fine in a lump sum would
have an unduly severe impact on him or his dependents, the court should
establish an installment schedule for payment of the fine. The length of
the installment schedule generally should not exceed twelve months, and
shall not exceed the maximum term of probation authorized for the offense.
The defendant should be required to pay a substantial installment at the

§5E1.2
time of sentencing. If the court authorizes a defendant sentenced to proba-

tion or supervised release to pay a fine on an installment schedule, the
court shall require as a condition of probation or supervised release that
the defendant pay the fine according to the schedule. The court also may
impose a condition prohibiting the defendant from incurring new credit
charges or opening additional lines of credit unless he is in compliance with
the payment schedule.
(g) If the defendant knowingly fails to pay a delinquent fine, the court shall
resentence him in accordance with 18 U.S.C. § 3614.
(h) Special Instruction
(1) For offenses committed prior to November 1, 2015, use the applicable
fine guideline range that was set forth in the version of §5E1.2(c) that
was in effect on November 1, 2014, rather than the applicable fine
guideline range set forth in subsection (c) above.
Commentary
Application Notes:
1. A fine may be the sole sanction if the guidelines do not require a term of imprisonment. If, how-
ever, the fine is not paid in full at the time of sentencing, it is recommended that the court sen-
tence the defendant to a term of probation, with payment of the fine as a condition of probation.
If a fine is imposed in addition to a term of imprisonment, it is recommended that the court
impose a term of supervised release following imprisonment as a means of enforcing payment of
the fine.
2. In general, the maximum fine permitted by law as to each count of conviction is $250,000 for a
felony or for any misdemeanor resulting in death; $100,000 for a Class A misdemeanor; and
$5,000 for any other offense. 18 U.S.C. § 3571(b)(3)–(7). However, higher or lower limits may
apply when specified by statute. 18 U.S.C. § 3571(b)(1), (e). As an alternative maximum, the
court may fine the defendant up to the greater of twice the gross gain or twice the gross loss.
18 U.S.C. § 3571(b)(2), (d).
3. The determination of the fine guideline range may be dispensed with entirely upon a court de-
termination of present and future inability to pay any fine. The inability of a defendant to post
bail bond (having otherwise been determined eligible for release) and the fact that a defendant
is represented by (or was determined eligible for) assigned counsel are significant indicators of
present inability to pay any fine. In conjunction with other factors, they may also indicate that
the defendant is not likely to become able to pay any fine.
4. The Commission envisions that for most defendants, the maximum of the guideline fine range
from subsection (c) will be at least twice the amount of gain or loss resulting from the offense.
Where, however, two times either the amount of gain to the defendant or the amount of loss
caused by the offense exceeds the maximum of the fine guideline, an upward departure from the
fine guideline may be warranted.
Moreover, where a sentence within the applicable fine guideline range would not be sufficient to
ensure both the disgorgement of any gain from the offense that otherwise would not be disgorged

§5E1.3
(e.g., by restitution or forfeiture) and an adequate punitive fine, an upward departure from the
fine guideline range may be warranted.
5. Subsection (c)(4) applies to statutes that contain special provisions permitting larger fines; the
guidelines do not limit maximum fines in such cases. These statutes include, among others:
21 U.S.C. §§ 841(b) and 960(b), which authorize fines up to $8 million in offenses involving the
manufacture, distribution, or importation of certain controlled substances; 21 U.S.C. § 848(a),
which authorizes fines up to $4 million in offenses involving the manufacture or distribution of
controlled substances by a continuing criminal enterprise; 18 U.S.C. § 1956(a), which authorizes
a fine equal to the greater of $500,000 or two times the value of the monetary instruments or
funds involved in offenses involving money laundering of financial instruments; 18 U.S.C.
§ 1957(b)(2), which authorizes a fine equal to two times the amount of any criminally derived
property involved in a money laundering transaction; 33 U.S.C. § 1319(c), which authorizes a
fine of up to $50,000 per day for violations of the Water Pollution Control Act; 42 U.S.C. § 6928(d),
which authorizes a fine of up to $50,000 per day for violations of the Resource Conservation Act;
and 52 U.S.C. § 30109(d)(1)(D), which authorizes, for violations of the Federal Election Campaign
Act under 52 U.S.C. § 30122, a fine up to the greater of $50,000 or 1,000 percent of the amount
of the violation, and which requires, in the case of such a violation, a minimum fine of not less
than 300 percent of the amount of the violation.
There may be cases in which the defendant has entered into a conciliation agreement with the
Federal Election Commission under section 309 of the Federal Election Campaign Act of 1971 in
order to correct or prevent a violation of such Act by the defendant. The existence of a conciliation
agreement between the defendant and Federal Election Commission, and the extent of compli-
ance with that conciliation agreement, may be appropriate factors in determining at what point
within the applicable fine guideline range to sentence the defendant, unless the defendant began
negotiations toward a conciliation agreement after becoming aware of a criminal investigation.
6. The existence of income or assets that the defendant failed to disclose may justify a larger fine
than that which otherwise would be warranted under this section. The court may base its con-
clusion as to this factor on information revealing significant unexplained expenditures by the
defendant or unexplained possession of assets that do not comport with the defendant’s reported
income. If the court concludes that the defendant willfully misrepresented all or part of his in-
come or assets, it may increase the offense level and resulting sentence in accordance with Chap-
ter Three, Part C (Obstruction and Related Adjustments).
7. In considering subsection (d)(7), the court may be guided by reports published by the Bureau of
Prisons and the Administrative Office of the United States Courts concerning average costs.
(amendments 280, 281, and 302); November 1, 1990 (amendment 356); November 1, 1991 (amend-
Historical
ment 384); November 1, 1997 (amendment 572); November 1, 2002 (amendment 646); January 25,
Note
2003 (amendment 648); November 1, 2003 (amendment 656); November 1, 2011 (amendment 758);
November 1, 2015 (amendments 791 and 796).
§5E1.3. Special Assessments
A special assessment must be imposed on a convicted defendant in the amount

prescribed by statute.

§5E1.4
Commentary
Application Notes:
1. This guideline applies only if the defendant is an individual. See §8E1.1 for special assessments
applicable to organizations.
2. The following special assessments are provided by statute (18 U.S.C. § 3013):
FOR OFFENSES COMMITTED BY INDIVIDUALS ON OR AFTER APRIL 24, 1996:

(A) $100, if convicted of a felony;
(B) $25, if convicted of a Class A misdemeanor;
(C) $10, if convicted of a Class B misdemeanor;
(D) $5, if convicted of a Class C misdemeanor or an infraction.
FOR OFFENSES COMMITTED BY INDIVIDUALS ON OR AFTER NOVEMBER 18, 1988 BUT PRIOR TO
APRIL 24, 1996:
(E) $50, if convicted of a felony;
(F) $25, if convicted of a Class A misdemeanor;
(G) $10, if convicted of a Class B misdemeanor;
(H) $5, if convicted of a Class C misdemeanor or an infraction.
FOR OFFENSES COMMITTED BY INDIVIDUALS PRIOR TO NOVEMBER 18, 1988:

(I) $50, if convicted of a felony;
(J) $25, if convicted of a misdemeanor.
3. A special assessment is required by statute for each count of conviction.
Background: Section 3013 of Title 18, United States Code, added by The Victims of Crimes Act of
1984, Pub. L. No. 98–473, Title II, Chap. XIV, requires courts to impose special assessments on con-
victed defendants for the purpose of funding the Crime Victims Fund established by the same legisla-
tion.
Note 1997 (amendment 573).
§5E1.4. Forfeiture
Forfeiture is to be imposed upon a convicted defendant as provided by statute.

Commentary
Background: Forfeiture provisions exist in various statutes. For example, 18 U.S.C. § 3554 requires
the court imposing a sentence under 18 U.S.C. § 1962 (proscribing the use of the proceeds of racket-
eering activities in the operation of an enterprise engaged in interstate commerce) or Titles II and III
of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (proscribing the manufacture
and distribution of controlled substances) to order the forfeiture of property in accordance with
18 U.S.C. § 1963 and 21 U.S.C. § 853, respectively. Those provisions require the automatic forfeiture
of certain property upon conviction of their respective underlying offenses.

§5E1.5
In addition, the provisions of 18 U.S.C. §§ 3681–3682 authorizes the court, in certain circum-
stances, to order the forfeiture of a violent criminal’s proceeds from the depiction of his crime in a book,
movie, or other medium. Those sections authorize the deposit of proceeds in an escrow account in the
Crime Victims Fund of the United States Treasury. The money is to remain available in the account
for five years to satisfy claims brought against the defendant by the victim(s) of his offenses. At the
end of the five-year period, the court may require that any proceeds remaining in the account be re-
leased from escrow and paid into the Fund. 18 U.S.C. § 3681(c)(2).
Historical
Effective November 1, 1987. Amended effective November 1, 1989 (amendment 302).
Note
§5E1.5. Costs of Prosecution (Policy Statement)
Costs of prosecution shall be imposed on a defendant as required by statute.

Commentary
Background: Various statutes require the court to impose the costs of prosecution: 7 U.S.C. § 13
(larceny or embezzlement in connection with commodity exchanges); 21 U.S.C. § 844 (simple posses-
sion of controlled substances) (unless the court finds that the defendant lacks the ability to pay);
26 U.S.C. § 7201 (attempt to defeat or evade income tax); 26 U.S.C. § 7202 (willful failure to collect or
pay tax); 26 U.S.C. § 7203 (willful failure to file income tax return, supply information, or pay tax);
26 U.S.C. § 7206 (fraud and false statements); 26 U.S.C. § 7210 (failure to obey summons); 26 U.S.C.
§ 7213 (unauthorized disclosure of information); 26 U.S.C. § 7215 (offenses with respect to collected
taxes); 26 U.S.C. § 7216 (disclosure or use of information by preparers of returns); 26 U.S.C. § 7232
(failure to register or false statement by gasoline manufacturer or producer); 42 U.S.C. § 1320c-9 (im-
proper FOIA disclosure); 43 U.S.C. § 942-6 (rights of way for Alaskan wagon roads).
Historical
Effective November 1, 1992 (amendment 463). Amended effective November 1, 2010 (amendment 747).
Note

§5F1.2
PART F ― SENTENCING OPTIONS
§5F1.1. Community Confinement
Community confinement may be imposed as a condition of probation or super-

vised release.
Commentary
Application Notes:
1. “Community confinement” means residence in a community treatment center, halfway house,

restitution center, mental health facility, alcohol or drug rehabilitation center, or other commu-
nity facility; and participation in gainful employment, employment search efforts, community
service, vocational training, treatment, educational programs, or similar facility-approved pro-
grams during non-residential hours.
2. Community confinement generally should not be imposed for a period in excess of six months. A
longer period may be imposed to accomplish the objectives of a specific rehabilitative program,
such as drug rehabilitation. The sentencing judge may impose other discretionary conditions of
probation or supervised release appropriate to effectuate community confinement.
Note (amendment 646); November 1, 2009 (amendment 733).
§5F1.2. Home Detention
Home detention may be imposed as a condition of probation or supervised re-

lease, but only as a substitute for imprisonment.
Commentary
Application Notes:
1. “Home detention” means a program of confinement and supervision that restricts the defendant
to his place of residence continuously, except for authorized absences, enforced by appropriate
means of surveillance by the probation office. When an order of home detention is imposed, the
defendant is required to be in his place of residence at all times except for approved absences for
gainful employment, community service, religious services, medical care, educational or training
programs, and such other times as may be specifically authorized. Electronic monitoring is an
appropriate means of surveillance for home detention. However, alternative means of surveil-
lance may be used if appropriate.
2. The court may impose other conditions of probation or supervised release appropriate to effectu-
ate home detention. If the court concludes that the amenities available in the residence of a de-
fendant would cause home detention not to be sufficiently punitive, the court may limit the amen-
ities available.
3. The defendant’s place of residence, for purposes of home detention, need not be the place where
the defendant previously resided. It may be any place of residence, so long as the owner of the

§5F1.3
residence (and any other person(s) from whom consent is necessary) agrees to any conditions that
may be imposed by the court, e.g., conditions that a monitoring system be installed, that there
will be no “call forwarding” or “call waiting” services, or that there will be no cordless telephones
or answering machines.
Background: The Commission has concluded that electronic monitoring is an appropriate means of
surveillance for home detention. However, in some cases home detention may effectively be enforced
without electronic monitoring, e.g., when the defendant is physically incapacitated, or where some
other effective means of surveillance is available. Accordingly, the Commission has not required that
electronic monitoring be a necessary condition for home detention. Nevertheless, before ordering home
detention without electronic monitoring, the court should be confident that an alternative form of sur-
veillance is appropriate considering the facts and circumstances of the defendant’s case.
In the usual case, the Commission assumes that a condition requiring that the defendant seek
and maintain gainful employment will be imposed when home detention is ordered.
§5F1.3. Community Service
Community service may be ordered as a condition of probation or supervised

release.
Commentary
Application Note:
1. Community service generally should not be imposed in excess of 400 hours. Longer terms of com-
munity service impose heavy administrative burdens relating to the selection of suitable place-
ments and the monitoring of attendance.
§5F1.4. Order of Notice to Victims
The court may order the defendant to pay the cost of giving notice to victims
pursuant to 18 U.S.C. § 3555. This cost may be set off against any fine imposed
if the court determines that the imposition of both sanctions would be excessive.
Commentary
Background: In cases where a defendant has been convicted of an offense involving fraud or “other
intentionally deceptive practices,” the court may order the defendant to “give reasonable notice and
explanation of the conviction, in such form as the court may approve” to the victims of the offense.
18 U.S.C. § 3555. The court may order the notice to be given by mail, by advertising in specific areas

§5F1.5
or through specific media, or by other appropriate means. In determining whether a notice is appro-
priate, the court must consider the generally applicable sentencing factors listed in 18 U.S.C. § 3553(a)
and the cost involved in giving the notice as it relates to the loss caused by the crime. The court may
not require the defendant to pay more than $20,000 to give notice.
If an order of notice to victims is under consideration, the court must notify the government and
the defendant. 18 U.S.C. § 3553(d). Upon motion of either party, or on its own motion, the court must:
(1) permit the parties to submit affidavits and memoranda relevant to the imposition of such an order;
(2) provide counsel for both parties the opportunity to address orally, in open court, the appropriate-
ness of such an order; and (3) if it issues such an order, state its reasons for doing so. The court may
also order any additional procedures that will not unduly complicate or prolong the sentencing process.
Historical
Effective November 1, 1987. Amended effective November 1, 1989 (amendments 284 and 302).
Note
§5F1.5. Occupational Restrictions
(a) The court may impose a condition of probation or supervised release pro-
hibiting the defendant from engaging in a specified occupation, business,
or profession, or limiting the terms on which the defendant may do so, only
if it determines that:
(1) a reasonably direct relationship existed between the defendant’s oc-

cupation, business, or profession and the conduct relevant to the of-
fense of conviction; and
(2) imposition of such a restriction is reasonably necessary to protect the

public because there is reason to believe that, absent such restriction,
the defendant will continue to engage in unlawful conduct similar to
that for which the defendant was convicted.
(b) If the court decides to impose a condition of probation or supervised release

restricting a defendant’s engagement in a specified occupation, business,
or profession, the court shall impose the condition for the minimum time
and to the minimum extent necessary to protect the public.
Commentary
Background: The Comprehensive Crime Control Act authorizes the imposition of occupational re-
strictions as a condition of probation, 18 U.S.C. § 3563(b)(5), or supervised release, 18 U.S.C. § 3583(d).
Pursuant to § 3563(b)(5), a court may require a defendant to:
[R]efrain, in the case of an individual, from engaging in a specified occupation, business, or

profession bearing a reasonably direct relationship to the conduct constituting the offense,
or engage in such a specified occupation, business, or profession only to a stated degree or
under stated circumstances.

§5F1.6
Section 3583(d) incorporates this section by reference. The Senate Judiciary Committee Report
on the Comprehensive Crime Control Act explains that the provision was “intended to be used to pre-
clude the continuation or repetition of illegal activities while avoiding a bar from employment that
exceeds that needed to achieve that result.” S. Rep. No. 225, 98th Cong., 1st Sess. 96–97. The condition
“should only be used as reasonably necessary to protect the public. It should not be used as a means
of punishing the convicted person.” Id. at 96. Section 5F1.5 accordingly limits the use of the condition
and, if imposed, limits its scope, to the minimum reasonably necessary to protect the public.
The appellate review provisions permit a defendant to challenge the imposition of a probation
condition under 18 U.S.C. § 3563(b)(5) if the sentence includes a more limiting condition of probation
or supervised release than the maximum established in the guideline. See 18 U.S.C. § 3742(a)(3). The
government may appeal if the sentence includes a less limiting condition of probation than the mini-
mum established in the guideline. See 18 U.S.C. § 3742(b)(3).
Note 1991 (amendment 428); November 1, 2002 (amendment 646).
§5F1.6. Denial of Federal Benefits to Drug Traffickers and Possessors
The court, pursuant to 21 U.S.C. § 862, may deny the eligibility for certain Fed-
eral benefits of any individual convicted of distribution or possession of a con-
trolled substance.
Commentary
Application Note:
1. “Federal benefit” is defined in 21 U.S.C. § 862(d) to mean “any grant, contract, loan, profes-
sional license, or commercial license provided by an agency of the United States or by appropri-
ated funds of the United States” but “does not include any retirement, welfare, Social Security,
health, disability, veterans benefit, public housing, or other similar benefit, or any other benefit
for which payments or services are required for eligibility.”
Background: Subsections (a) and (b) of 21 U.S.C. § 862 provide that an individual convicted of a state
or federal drug trafficking or possession offense may be denied certain federal benefits. Except for an
individual convicted of a third or subsequent drug distribution offense, the period of benefit ineligibil-
ity, within the applicable maximum term set forth in 21 U.S.C. § 862(a)(1) (for distribution offenses)
and (b)(1)(for possession offenses), is at the discretion of the court. In the case of an individual con-
victed of a third or subsequent drug distribution offense, denial of benefits is mandatory and perma-
nent under 21 U.S.C. § 862(a)(1)(C) (unless suspended by the court under 21 U.S.C. § 862(c)).
Subsection (b)(2) of 21 U.S.C. § 862 provides that the period of benefit ineligibility that may be
imposed in the case of a drug possession offense “shall be waived in the case of a person who, if there
is a reasonable body of evidence to substantiate such declaration, declares himself to be an addict and
submits himself to a long-term treatment program for addiction, or is deemed to be rehabilitated pur-
suant to rules established by the Secretary of Health and Human Services.”
Subsection (c) of 21 U.S.C. § 862 provides that the period of benefit ineligibility shall be sus-
pended “if the individual (A) completes a supervised drug rehabilitation program after becoming inel-
igible under this section; (B) has otherwise been rehabilitated; or (C) has made a good faith effort to

§5F1.7
gain admission to a supervised drug rehabilitation program, but is unable to do so because of inacces-
sibility or unavailability of such a program, or the inability of the individual to pay for such a program.”
Subsection (e) of 21 U.S.C. § 862 provides that a period of benefit ineligibility “shall not apply to
any individual who cooperates or testifies with the Government in the prosecution of a Federal or State
offense or who is in a Government witness protection program.”
Historical
Effective November 1, 1989 (amendment 305); November 1, 1992 (amendment 464).
Note
§5F1.7. Shock Incarceration Program (Policy Statement)
The court, pursuant to 18 U.S.C. §§ 3582(a) and 3621(b)(4), may recommend

that a defendant who meets the criteria set forth in 18 U.S.C. § 4046 participate
in a shock incarceration program.
Commentary
Background: Section 4046 of title 18, United States Code, provides—
“(a) the Bureau of Prisons may place in a shock incarceration program any person who is sen-
tenced to a term of more than 12, but not more than 30 months, if such person consents to
that placement.
(b) For such initial portion of the term of imprisonment as the Bureau of Prisons may deter-
mine, not to exceed six months, an inmate in the shock incarceration program shall be re-
quired to—
(1) adhere to a highly regimented schedule that provides the strict discipline, physical
training, hard labor, drill, and ceremony characteristic of military basic training; and
(2) participate in appropriate job training and educational programs (including literacy
programs) and drug, alcohol, and other counseling programs.
(c) An inmate who in the judgment of the Director of the Bureau of Prisons has successfully
completed the required period of shock incarceration shall remain in the custody of the
Bureau for such period (not to exceed the remainder of the prison term otherwise required
by law to be served by that inmate), and under such conditions, as the Bureau deems ap-
propriate. 18 U.S.C. § 4046.”
The Bureau of Prisons has issued an operations memorandum (174-90 (5390), November 20,
1990) that outlines eligibility criteria and procedures for the implementation of this program (which
the Bureau of Prisons has titled “intensive confinement program”). Under these procedures, the Bu-
reau will not place a defendant in an intensive confinement program unless the sentencing court has
approved, either at the time of sentencing or upon consultation after the Bureau has determined that
the defendant is otherwise eligible. In return for the successful completion of the “intensive confine-
ment” portion of the program, the defendant is eligible to serve the remainder of his term of imprison-
ment in a graduated release program comprised of community corrections center and home confine-
ment phases.

§5F1.8
Historical
Note
§5F1.8. Intermittent Confinement
Intermittent confinement may be imposed as a condition of probation during

the first year of probation. See 18 U.S.C. § 3563(b)(10). It may be imposed as a
condition of supervised release during the first year of supervised release, but
only for a violation of a condition of supervised release in accordance with
18 U.S.C. § 3583(e)(2) and only when facilities are available. See 18 U.S.C.
§ 3583(d).
Commentary
Application Note:
1. “Intermittent confinement” means remaining in the custody of the Bureau of Prisons during
nights, weekends, or other intervals of time, totaling no more than the lesser of one year or the
term of imprisonment authorized for the offense, during the first year of the term of probation or
supervised release. See 18 U.S.C. § 3563(b)(10).
Historical
Effective November 1, 2009 (amendment 733).
Note

§5G1.2
PART G ― IMPLEMENTING THE TOTAL SENTENCE OF IMPRISONMENT
§5G1.1. Sentencing on a Single Count of Conviction
(a) Where the statutorily authorized maximum sentence is less than the min-
imum of the applicable guideline range, the statutorily authorized maxi-
mum sentence shall be the guideline sentence.
(b) Where a statutorily required minimum sentence is greater than the maxi-
mum of the applicable guideline range, the statutorily required minimum
sentence shall be the guideline sentence.
(c) In any other case, the sentence may be imposed at any point within the
applicable guideline range, provided that the sentence—
(1) is not greater than the statutorily authorized maximum sentence, and
(2) is not less than any statutorily required minimum sentence.
Commentary
This section describes how the statutorily authorized maximum sentence, or a statutorily re-
quired minimum sentence, may affect the determination of a sentence under the guidelines. For ex-
ample, if the applicable guideline range is 51–63 months and the maximum sentence authorized by
statute for the offense of conviction is 48 months, the sentence required by the guidelines under sub-
section (a) is 48 months; a sentence of less than 48 months would be a guideline departure. If the
applicable guideline range is 41–51 months and there is a statutorily required minimum sentence of
60 months, the sentence required by the guidelines under subsection (b) is 60 months; a sentence of
more than 60 months would be a guideline departure. If the applicable guideline range is 51–
63 months and the maximum sentence authorized by statute for the offense of conviction is 60 months,
the guideline range is restricted to 51–60 months under subsection (c).
Historical
Note
§5G1.2. Sentencing on Multiple Counts of Conviction
(a) Except as provided in subsection (e), the sentence to be imposed on a count

for which the statute (1) specifies a term of imprisonment to be imposed;
and (2) requires that such term of imprisonment be imposed to run consec-
utively to any other term of imprisonment, shall be determined by that
statute and imposed independently.

§5G1.2
(b) For all counts not covered by subsection (a), the court shall determine the
total punishment and shall impose that total punishment on each such
count, except to the extent otherwise required by law.
(c) If the sentence imposed on the count carrying the highest statutory maxi-
mum is adequate to achieve the total punishment, then the sentences on
all counts shall run concurrently, except to the extent otherwise required
by law.
(d) If the sentence imposed on the count carrying the highest statutory maxi-
mum is less than the total punishment, then the sentence imposed on one
or more of the other counts shall run consecutively, but only to the extent
necessary to produce a combined sentence equal to the total punishment.
In all other respects, sentences on all counts shall run concurrently, except
to the extent otherwise required by law.
(e) In a case in which subsection (c) of §4B1.1 (Career Offender) applies, to the
extent possible, the total punishment is to be apportioned among the
counts of conviction, except that (1) the sentence to be imposed on a count
requiring a minimum term of imprisonment shall be at least the minimum
required by statute; and (2) the sentence to be imposed on the 18 U.S.C.
§ 924(c) or § 929(a) count shall be imposed to run consecutively to any
other count.
Commentary
Application Notes:
1. In General.—This section specifies the procedure for determining the specific sentence to be
formally imposed on each count in a multiple-count case. The combined length of the sentences
(“total punishment”) is determined by the court after determining the adjusted combined offense
level and the Criminal History Category and determining the defendant’s guideline range on the
Sentencing Table in Chapter Five, Part A (Sentencing Table).
Note that the defendant’s guideline range on the Sentencing Table may be affected or restricted
by a statutorily authorized maximum sentence or a statutorily required minimum sentence not
only in a single-count case, see §5G1.1 (Sentencing on a Single Count of Conviction), but also in
a multiple-count case. See Note 3, below.
Except as otherwise required by subsection (e) or any other law, the total punishment is to be
imposed on each count and the sentences on all counts are to be imposed to run concurrently to
the extent allowed by the statutory maximum sentence of imprisonment for each count of con-
viction.
This section applies to multiple counts of conviction (A) contained in the same indictment or
information, or (B) contained in different indictments or informations for which sentences are to
be imposed at the same time or in a consolidated proceeding.
Usually, at least one of the counts will have a statutory maximum adequate to permit imposition
of the total punishment as the sentence on that count. The sentence on each of the other counts
will then be set at the lesser of the total punishment and the applicable statutory maximum, and

§5G1.2
be made to run concurrently with all or part of the longest sentence. If no count carries an ade-
quate statutory maximum, consecutive sentences are to be imposed to the extent necessary to
achieve the total punishment.
2. Mandatory Minimum and Mandatory Consecutive Terms of Imprisonment (Not Cov-

ered by Subsection (e)).—
(A) In General.—Subsection (a) applies if a statute (i) specifies a term of imprisonment to be

imposed; and (ii) requires that such term of imprisonment be imposed to run consecutively
to any other term of imprisonment. See, e.g., 18 U.S.C. § 924(c) (requiring mandatory min-
imum terms of imprisonment, based on the conduct involved, and also requiring the sen-
tence imposed to run consecutively to any other term of imprisonment) and 18 U.S.C.
§ 1028A (requiring a mandatory term of imprisonment of either two or five years, based on
the conduct involved, and also requiring, except in the circumstances described in subdivi-
sion (B), the sentence imposed to run consecutively to any other term of imprisonment).
Except for certain career offender situations in which subsection (c) of §4B1.1 (Career Of-
fender) applies, the term of years to be imposed consecutively is the minimum required by
the statute of conviction and is independent of the guideline sentence on any other count.
See, e.g., the Commentary to §§2K2.4 (Use of Firearm, Armor-Piercing Ammunition, or Ex-
plosive During or in Relation to Certain Crimes) and 3D1.1 (Procedure for Determining
Offense Level on Multiple Counts) regarding the determination of the offense levels for
related counts when a conviction under 18 U.S.C. § 924(c) is involved. Subsection (a) also
applies in certain other instances in which an independently determined and consecutive
sentence is required. See, e.g., Application Note 3 of the Commentary to §2J1.6 (Failure to
Appear by Defendant), relating to failure to appear for service of sentence.
(B) Multiple Convictions Under 18 U.S.C. § 1028A.—Section 1028A of title 18, United
States Code, generally requires that the mandatory term of imprisonment for a violation of
such section be imposed consecutively to any other term of imprisonment. However,
18 U.S.C. § 1028A(b)(4) permits the court, in its discretion, to impose the mandatory term
of imprisonment on a defendant for a violation of such section “concurrently, in whole or in
part, only with another term of imprisonment that is imposed by the court at the same time
on that person for an additional violation of this section, provided that such discretion shall
be exercised in accordance with any applicable guidelines and policy statements issued by
the Sentencing Commission . . .”.
In determining whether multiple counts of 18 U.S.C. § 1028A should run concurrently with,
or consecutively to, each other, the court should consider the following non-exhaustive list
of factors:
(i) The nature and seriousness of the underlying offenses. For example, the court should
consider the appropriateness of imposing consecutive, or partially consecutive, terms
of imprisonment for multiple counts of 18 U.S.C. § 1028A in a case in which an un-
derlying offense for one of the 18 U.S.C. § 1028A offenses is a crime of violence or an
offense enumerated in 18 U.S.C. § 2332b(g)(5)(B).
(ii) Whether the underlying offenses are groupable under §3D1.2 (Groups of Closely Re-
lated Counts). Generally, multiple counts of 18 U.S.C. § 1028A should run concur-
rently with one another in cases in which the underlying offenses are groupable under
§3D1.2.
(iii) Whether the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2) are better
achieved by imposing a concurrent or a consecutive sentence for multiple counts of
18 U.S.C. § 1028A.

§5G1.2
(C) Imposition of Supervised Release.—In the case of a consecutive term of imprisonment

imposed under subsection (a), any term of supervised release imposed is to run concurrently
with any other term of supervised release imposed. See 18 U.S.C. § 3624(e).
3. Application of Subsection (b).—
(A) In General.—Subsection (b) provides that, for all counts not covered by subsection (a), the
court shall determine the total punishment (i.e., the combined length of the sentences to be
imposed) and shall impose that total punishment on each such count, except to the extent
otherwise required by law (such as where a statutorily required minimum sentence or a
statutorily authorized maximum sentence otherwise requires).
(B) Effect on Guidelines Range of Mandatory Minimum or Statutory Maximum.—The

defendant’s guideline range on the Sentencing Table may be affected or restricted by a stat-
utorily authorized maximum sentence or a statutorily required minimum sentence not only
in a single-count case, see §5G1.1, but also in a multiple-count case.
In particular, where a statutorily required minimum sentence on any count is greater than
the maximum of the applicable guideline range, the statutorily required minimum sentence
on that count shall be the guideline sentence on all counts. See §5G1.1(b). Similarly, where
a statutorily required minimum sentence on any count is greater than the minimum of the
applicable guideline range, the guideline range for all counts is restricted by that statutorily
required minimum sentence. See §5G1.1(c)(2) and accompanying Commentary.
However, where a statutorily authorized maximum sentence on a particular count is less

than the minimum of the applicable guideline range, the sentence imposed on that count
shall not be greater than the statutorily authorized maximum sentence on that count.
See §5G1.1(a).
(C) Examples.—The following examples illustrate how subsection (b) applies, and how the re-
strictions in subparagraph (B) operate, when a statutorily required minimum sentence is
involved.
Defendant A and Defendant B are each convicted of the same four counts. Counts 1, 3, and 4
have statutory maximums of 10 years, 20 years, and 2 years, respectively. Count 2 has a
statutory maximum of 30 years and a mandatory minimum of 10 years.
For Defendant A, the court determines that the final offense level is 19 and the defendant
is in Criminal History Category I, which yields a guideline range on the Sentencing Table
of 30 to 37 months. Because of the 10-year mandatory minimum on Count 2, however, De-
fendant A’s guideline sentence is 120 months. See subparagraph (B), above. After consider-
ing that guideline sentence, the court determines that the appropriate “total punishment”
to be imposed on Defendant A is 120 months. Therefore, subsection (b) requires that the
total punishment of 120 months be imposed on each of Counts 1, 2, and 3. The sentence
imposed on Count 4 is limited to 24 months, because a statutory maximum of 2 years ap-
plies to that particular count.
For Defendant B, in contrast, the court determines that the final offense level is 30 and the
defendant is in Criminal History Category II, which yields a guideline range on the Sen-
tencing Table of 108 to 135 months. Because of the 10-year mandatory minimum on
Count 2, however, Defendant B’s guideline range is restricted to 120 to 135 months.
See subparagraph (B), above. After considering that restricted guideline range, the court
determines that the appropriate “total punishment” to be imposed on Defendant B is

§5G1.2
130 months. Therefore, subsection (b) requires that the total punishment of 130 months be
imposed on each of Counts 2 and 3. The sentences imposed on Counts 1 and 4 are limited
to 120 months (10 years) and 24 months (2 years), respectively, because of the applicable
statutory maximums.
(D) Special Rule on Resentencing.—In a case in which (i) the defendant’s guideline range
on the Sentencing Table was affected or restricted by a statutorily required minimum sen-
tence (as described in subparagraph (B)), (ii) the court is resentencing the defendant, and
(iii) the statutorily required minimum sentence no longer applies, the defendant’s guideline
range for purposes of the remaining counts shall be redetermined without regard to the
previous effect or restriction of the statutorily required minimum sentence.
4. Career Offenders Covered under Subsection (e).—
(A) Imposing Sentence.—The sentence imposed for a conviction under 18 U.S.C. § 924(c) or
§ 929(a) shall, under that statute, consist of a minimum term of imprisonment imposed to
run consecutively to the sentence on any other count. Subsection (e) requires that the total
punishment determined under §4B1.1(c) be apportioned among all the counts of conviction.
In most cases this can be achieved by imposing the statutory minimum term of imprison-
ment on the 18 U.S.C. § 924(c) or § 929(a) count, subtracting that minimum term of impris-
onment from the total punishment determined under §4B1.1(c), and then imposing the bal-
ance of the total punishment on the other counts of conviction. In some cases covered by
subsection (e), a consecutive term of imprisonment longer than the minimum required by
18 U.S.C. § 924(c) or § 929(a) will be necessary in order both to achieve the total punish-
ment determined by the court and to comply with the applicable statutory requirements.
(B) Examples.—The following examples illustrate the application of subsection (e) in a multi-
ple count situation:
(i) The defendant is convicted of one count of violating 18 U.S.C. § 924(c) for possessing
a firearm in furtherance of a drug trafficking offense (5 year mandatory minimum),
and one count of violating 21 U.S.C. § 841(b)(1)(C) (20 year statutory maximum). Ap-
plying §4B1.1(c), the court determines that a sentence of 300 months is appropriate
(applicable guideline range of 262–327). The court then imposes a sentence of
60 months on the 18 U.S.C. § 924(c) count, subtracts that 60 months from the total
punishment of 300 months and imposes the remainder of 240 months on the 21 U.S.C.
§ 841 count. As required by statute, the sentence on the 18 U.S.C. § 924(c) count is
imposed to run consecutively.
(ii) The defendant is convicted of one count of 18 U.S.C. § 924(c) (5 year mandatory min-
imum), and one count of violating 21 U.S.C. § 841(b)(1)(C) (20 year statutory maxi-
mum). Applying §4B1.1(c), the court determines that a sentence of 327 months is ap-
propriate (applicable guideline range of 262–327). The court then imposes a sentence
of 240 months on the 21 U.S.C. § 841 count and a sentence of 87 months on the
18 U.S.C. § 924(c) count to run consecutively to the sentence on the 21 U.S.C. § 841
count.
(iii) The defendant is convicted of two counts of 18 U.S.C. § 924(c) (5 year mandatory min-
imum on first count, 25 year mandatory minimum on second count) and one count of
violating 18 U.S.C. § 113(a)(3) (10 year statutory maximum). Applying §4B1.1(c), the
court determines that a sentence of 460 months is appropriate (applicable guideline
range of 460–485 months). The court then imposes (I) a sentence of 60 months on the
first 18 U.S.C. § 924(c) count; (II) a sentence of 300 months on the second 18 U.S.C.

§5G1.3
§ 924(c) count; and (III) a sentence of 100 months on the 18 U.S.C. § 113(a)(3) count.
The sentence on each count is imposed to run consecutively to the other counts.
Effective November 1, 1987. Amended effective November 1, 1989 (amendments 287 and 288); November 1,
Historical 1994 (amendment 507); November 1, 1998 (amendment 579); November 1, 2000 (amendment 598); Novem-
Note ber 1, 2002 (amendment 642); November 1, 2004 (amendment 674); November 1, 2005 (amendments 677
and 680); November 1, 2010 (amendment 747); November 1, 2012 (amendments 767 and 770).
§5G1.3. Imposition of a Sentence on a Defendant Subject to an Undischarged Term

of Imprisonment or Anticipated State Term of Imprisonment
(a) If the instant offense was committed while the defendant was serving a
term of imprisonment (including work release, furlough, or escape status)
or after sentencing for, but before commencing service of, such term of im-
prisonment, the sentence for the instant offense shall be imposed to run
consecutively to the undischarged term of imprisonment.
(b) If subsection (a) does not apply, and a term of imprisonment resulted from
another offense that is relevant conduct to the instant offense of conviction
under the provisions of subsections (a)(1), (a)(2), or (a)(3) of §1B1.3 (Rele-
vant Conduct), the sentence for the instant offense shall be imposed as fol-
lows:
(1) the court shall adjust the sentence for any period of imprisonment al-
ready served on the undischarged term of imprisonment if the court
determines that such period of imprisonment will not be credited to
the federal sentence by the Bureau of Prisons; and
(2) the sentence for the instant offense shall be imposed to run concur-
rently to the remainder of the undischarged term of imprisonment.
(c) If subsection (a) does not apply, and a state term of imprisonment is antic-
ipated to result from another offense that is relevant conduct to the instant
offense of conviction under the provisions of subsections (a)(1), (a)(2), or
(a)(3) of §1B1.3 (Relevant Conduct), the sentence for the instant offense
shall be imposed to run concurrently to the anticipated term of imprison-
ment.
(d) (Policy Statement) In any other case involving an undischarged term of

imprisonment, the sentence for the instant offense may be imposed to run
concurrently, partially concurrently, or consecutively to the prior undis-
charged term of imprisonment to achieve a reasonable punishment for the
instant offense.

§5G1.3
Commentary
Application Notes:
1. Consecutive Sentence ― Subsection (a) Cases. Under subsection (a), the court shall impose
a consecutive sentence when the instant offense was committed while the defendant was serving
an undischarged term of imprisonment or after sentencing for, but before commencing service of,
such term of imprisonment.
2. Application of Subsection (b).—
(A) In General.—Subsection (b) applies in cases in which all of the prior offense is relevant
conduct to the instant offense under the provisions of subsection (a)(1), (a)(2), or (a)(3) of
§1B1.3 (Relevant Conduct). Cases in which only part of the prior offense is relevant conduct
to the instant offense are covered under subsection (d).
(B) Inapplicability of Subsection (b).—Subsection (b) does not apply in cases in which the
prior offense was not relevant conduct to the instant offense under §1B1.3(a)(1), (a)(2), or
(a)(3) (e.g., the prior offense is a prior conviction for which the defendant received an in-
crease under §2L1.2 (Unlawfully Entering or Remaining in the United States), or the prior
offense was a crime of violence for which the defendant received an increased base offense
level under §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammu-
nition; Prohibited Transactions Involving Firearms or Ammunition)).
(C) Imposition of Sentence.—If subsection (b) applies, and the court adjusts the sentence for
a period of time already served, the court should note on the Judgment in a Criminal Case
Order (i) the applicable subsection (e.g., §5G1.3(b)); (ii) the amount of time by which the
sentence is being adjusted; (iii) the undischarged term of imprisonment for which the ad-
justment is being given; and (iv) that the sentence imposed is a sentence reduction pursuant
to §5G1.3(b) for a period of imprisonment that will not be credited by the Bureau of Prisons.
(D) Example.—The following is an example in which subsection (b) applies and an adjustment
to the sentence is appropriate:
The defendant is convicted of a federal offense charging the sale of 90 grams of cocaine.
Under §1B1.3, the defendant is held accountable for the sale of an additional 25 grams of
cocaine, an offense for which the defendant has been convicted and sentenced in state court.
The defendant received a nine-month sentence of imprisonment for the state offense and
has served six months on that sentence at the time of sentencing on the instant federal
offense. The guideline range applicable to the defendant is 12–18 months (Chapter Two
offense level of level 16 for sale of 115 grams of cocaine; 3 level reduction for acceptance of
responsibility; final offense level of level 13; Criminal History Category I). The court deter-
mines that a sentence of 13 months provides the appropriate total punishment. Because
the defendant has already served six months on the related state charge as of the date of
sentencing on the instant federal offense, a sentence of seven months, imposed to run con-
currently with the three months remaining on the defendant’s state sentence, achieves this
result.
3. Application of Subsection (c).—Subsection (c) applies to cases in which the federal court an-
ticipates that, after the federal sentence is imposed, the defendant will be sentenced in state
court and serve a state sentence before being transferred to federal custody for federal imprison-
ment. In such a case, where the other offense is relevant conduct to the instant offense of convic-
tion under the provisions of subsections (a)(1), (a)(2), or (a)(3) of §1B1.3 (Relevant Conduct), the
sentence for the instant offense shall be imposed to run concurrently to the anticipated term of
imprisonment.

§5G1.3
4. Application of Subsection (d).—
(A) In General.—Under subsection (d), the court may impose a sentence concurrently, par-
tially concurrently, or consecutively to the undischarged term of imprisonment. In order to
achieve a reasonable incremental punishment for the instant offense and avoid unwar-
ranted disparity, the court should consider the following:
(i) the factors set forth in 18 U.S.C. § 3584 (referencing 18 U.S.C. § 3553(a));
(ii) the type (e.g., determinate, indeterminate/parolable) and length of the prior undis-
charged sentence;
(iii) the time served on the undischarged sentence and the time likely to be served before
release;
(iv) the fact that the prior undischarged sentence may have been imposed in state court
rather than federal court, or at a different time before the same or different federal
court; and
(v) any other circumstance relevant to the determination of an appropriate sentence for
the instant offense.
(B) Partially Concurrent Sentence.—In some cases under subsection (d), a partially con-
current sentence may achieve most appropriately the desired result. To impose a partially
concurrent sentence, the court may provide in the Judgment in a Criminal Case Order that
the sentence for the instant offense shall commence on the earlier of (i) when the defendant
is released from the prior undischarged sentence; or (ii) on a specified date. This order pro-
vides for a fully consecutive sentence if the defendant is released on the undischarged term
of imprisonment on or before the date specified in the order, and a partially concurrent
sentence if the defendant is not released on the undischarged term of imprisonment by that
date.
(C) Undischarged Terms of Imprisonment Resulting from Revocations of Probation,

Parole or Supervised Release.—Subsection (d) applies in cases in which the defendant
was on federal or state probation, parole, or supervised release at the time of the instant
offense and has had such probation, parole, or supervised release revoked. Consistent with
the policy set forth in Application Note 4 and subsection (f) of §7B1.3 (Revocation of Proba-
tion or Supervised Release), the Commission recommends that the sentence for the instant
offense be imposed consecutively to the sentence imposed for the revocation.
(D) Complex Situations.—Occasionally, the court may be faced with a complex case in which
a defendant may be subject to multiple undischarged terms of imprisonment that seemingly
call for the application of different rules. In such a case, the court may exercise its discretion
in accordance with subsection (d) to fashion a sentence of appropriate length and structure
it to run in any appropriate manner to achieve a reasonable punishment for the instant
offense.
(E) Downward Departure.—Unlike subsection (b), subsection (d) does not authorize an ad-
justment of the sentence for the instant offense for a period of imprisonment already served
on the undischarged term of imprisonment. However, in an extraordinary case involving
an undischarged term of imprisonment under subsection (d), it may be appropriate for the
court to downwardly depart. This may occur, for example, in a case in which the defendant
has served a very substantial period of imprisonment on an undischarged term of impris-
onment that resulted from conduct only partially within the relevant conduct for the instant

§5G1.3
offense. In such a case, a downward departure may be warranted to ensure that the com-
bined punishment is not increased unduly by the fortuity and timing of separate prosecu-
tions and sentencings. Nevertheless, it is intended that a departure pursuant to this appli-
cation note result in a sentence that ensures a reasonable incremental punishment for the
instant offense of conviction.
To avoid confusion with the Bureau of Prisons’ exclusive authority provided under 18 U.S.C.
§ 3585(b) to grant credit for time served under certain circumstances, the Commission rec-
ommends that any downward departure under this application note be clearly stated on
the Judgment in a Criminal Case Order as a downward departure pursuant to §5G1.3(d),
rather than as a credit for time served.
5. Downward Departure Provision.—In the case of a discharged term of imprisonment, a down-

ward departure is not prohibited if the defendant (A) has completed serving a term of imprison-
ment; and (B) subsection (b) would have provided an adjustment had that completed term of
imprisonment been undischarged at the time of sentencing for the instant offense. See §5K2.23
(Discharged Terms of Imprisonment).
Background: Federal courts generally “have discretion to select whether the sentences they impose
will run concurrently or consecutively with respect to other sentences that they impose, or that have
been imposed in other proceedings, including state proceedings.” See Setser v. United States, 132 S. Ct.
1463, 1468 (2012); 18 U.S.C. § 3584(a). Federal courts also generally have discretion to order that the
sentences they impose will run concurrently with or consecutively to other state sentences that are
anticipated but not yet imposed. See Setser, 132 S. Ct. at 1468. Exercise of that discretion, however, is
predicated on the court’s consideration of the factors listed in 18 U.S.C. § 3553(a), including any appli-
cable guidelines or policy statements issued by the Sentencing Commission.
Historical
1995 (amendment 535); November 1, 2002 (amendment 645); November 1, 2003 (amendment 660); Novem-
Note
ber 1, 2010 (amendment 747); November 1, 2013 (amendment 776).; November 1, 2014 (amendments 782,
787, and 789); November 1, 2016 (amendment 802).

Ch. 5 Pt. H
PART H ― SPECIFIC OFFENDER CHARACTERISTICS
This Part addresses the relevance of certain specific offender characteristics in sentencing. The
Sentencing Reform Act (the “Act”) contains several provisions regarding specific offender characteris-
tics:
First, the Act directs the Commission to ensure that the guidelines and policy statements “are
entirely neutral” as to five characteristics – race, sex, national origin, creed, and socioeconomic
status. See 28 U.S.C. § 994(d).
Second, the Act directs the Commission to consider whether eleven specific offender characteris-
tics, “among others”, have any relevance to the nature, extent, place of service, or other aspects
of an appropriate sentence, and to take them into account in the guidelines and policy statements
only to the extent that they do have relevance. See 28 U.S.C. § 994(d).
Third, the Act directs the Commission to ensure that the guidelines and policy statements, in
recommending a term of imprisonment or length of a term of imprisonment, reflect the “general
inappropriateness” of considering five of those characteristics – education; vocational skills; em-
ployment record; family ties and responsibilities; and community ties. See 28 U.S.C. § 994(e).
Fourth, the Act also directs the sentencing court, in determining the particular sentence to be
imposed, to consider, among other factors, “the history and characteristics of the defendant”.
See 18 U.S.C. § 3553(a)(1).
Specific offender characteristics are taken into account in the guidelines in several ways. One
important specific offender characteristic is the defendant’s criminal history, see 28 U.S.C.
§ 994(d)(10), which is taken into account in the guidelines in Chapter Four (Criminal History and
Criminal Livelihood). See §5H1.8 (Criminal History). Another specific offender characteristic in the
guidelines is the degree of dependence upon criminal history for a livelihood, see 28 U.S.C. § 994(d)(11),
which is taken into account in Chapter Four, Part B (Career Offenders and Criminal Livelihood).
See §5H1.9 (Dependence upon Criminal Activity for a Livelihood). Other specific offender characteris-
tics are accounted for elsewhere in this manual. See, e.g., §§2C1.1(a)(1) and 2C1.2(a)(1) (providing
alternative base offense levels if the defendant was a public official); 3B1.3 (Abuse of Position of Trust
or Use of Special Skill); and 3E1.1 (Acceptance of Responsibility).
The Supreme Court has emphasized that the advisory guideline system should “continue to move
sentencing in Congress’ preferred direction, helping to avoid excessive sentencing disparities while
maintaining flexibility sufficient to individualize sentences where necessary.” See United States v.
Booker, 543 U.S. 220, 264–65 (2005). Although the court must consider “the history and characteristics
of the defendant” among other factors, see 18 U.S.C. § 3553(a), in order to avoid unwarranted sentenc-
ing disparities the court should not give them excessive weight. Generally, the most appropriate use
of specific offender characteristics is to consider them not as a reason for a sentence outside the appli-
cable guideline range but for other reasons, such as in determining the sentence within the applicable
guideline range, the type of sentence (e.g., probation or imprisonment) within the sentencing options
available for the applicable Zone on the Sentencing Table, and various other aspects of an appropriate
sentence. To avoid unwarranted sentencing disparities among defendants with similar records who
have been found guilty of similar conduct, see 18 U.S.C. § 3553(a)(6), 28 U.S.C. § 991(b)(1)(B), the
guideline range, which reflects the defendant’s criminal conduct and the defendant’s criminal history,
should continue to be “the starting point and the initial benchmark.” Gall v. United States, 552 U.S. 38,
49 (2007).

Ch. 5 Pt. H
Accordingly, the purpose of this Part is to provide sentencing courts with a framework for ad-
dressing specific offender characteristics in a reasonably consistent manner. Using such a framework
in a uniform manner will help “secure nationwide consistency,” see Gall v. United States, 552 U.S. 38,
49 (2007), “avoid unwarranted sentencing disparities,” see 28 U.S.C. § 991(b)(1)(B), 18 U.S.C.
§ 3553(a)(6), “provide certainty and fairness,” see 28 U.S.C. § 991(b)(1)(B), and “promote respect for
the law,” see 18 U.S.C. § 3553(a)(2)(A).
This Part allocates specific offender characteristics into three general categories.
In the first category are specific offender characteristics the consideration of which Congress has
prohibited (e.g., §5H1.10 (Race, Sex, National Origin, Creed, Religion, and Socio-Economic Status)) or
that the Commission has determined should be prohibited.
In the second category are specific offender characteristics that Congress directed the Commis-
sion to take into account in the guidelines only to the extent that they have relevance to sentencing.
See 28 U.S.C. § 994(d). For some of these, the policy statements indicate that these characteristics may
be relevant in determining whether a sentence outside the applicable guideline range is warranted
(e.g., age; mental and emotional condition; physical condition). These characteristics may warrant a
sentence outside the applicable guideline range if the characteristic, individually or in combination
with other such characteristics, is present to an unusual degree and distinguishes the case from the
typical cases covered by the guidelines. These specific offender characteristics also may be considered
for other reasons, such as in determining the sentence within the applicable guideline range, the type
of sentence (e.g., probation or imprisonment) within the sentencing options available for the applicable
Zone on the Sentencing Table, and various other aspects of an appropriate sentence.
In the third category are specific offender characteristics that Congress directed the Commission
to ensure are reflected in the guidelines and policy statements as generally inappropriate in recom-
mending a term of imprisonment or length of a term of imprisonment. See 28 U.S.C. § 994(e). The
policy statements indicate that these characteristics are not ordinarily relevant to the determination
of whether a sentence should be outside the applicable guideline range. Unless expressly stated, this
does not mean that the Commission views such circumstances as necessarily inappropriate to the de-
termination of the sentence within the applicable guideline range, the type of sentence (e.g., probation
or imprisonment) within the sentencing options available for the applicable Zone on the Sentencing
Table, or various other aspects of an appropriate sentence (e.g., the appropriate conditions of probation
or supervised release). Furthermore, although these circumstances are not ordinarily relevant to the
determination of whether a sentence should be outside the applicable guideline range, they may be
relevant to this determination in exceptional cases. They also may be relevant if a combination of such
circumstances makes the case an exceptional one, but only if each such circumstance is identified as
an affirmative ground for departure and is present in the case to a substantial degree. See §5K2.0
(Grounds for Departure).
As with the other provisions in this manual, these policy statements “are evolutionary in nature”.
See Chapter One, Part A, Subpart 2 (Continuing Evolution and Role of the Guidelines); 28 U.S.C.
§ 994(o). The Commission expects, and the Sentencing Reform Act contemplates, that continuing re-
search, experience, and analysis will result in modifications and revisions.
The nature, extent, and significance of specific offender characteristics can involve a range of
considerations. The Commission will continue to provide information to the courts on the relevance of
specific offender characteristics in sentencing, as the Sentencing Reform Act contemplates.
See, e.g., 28 U.S.C. § 995(a)(12)(A) (the Commission serves as a “clearinghouse and information cen-
ter” on federal sentencing). Among other things, this may include information on the use of specific
offender characteristics, individually and in combination, in determining the sentence to be imposed
(including, where available, information on rates of use, criteria for use, and reasons for use); the
relationship, if any, between specific offender characteristics and (A) the “forbidden factors” specified

§5H1.1
in 28 U.S.C. § 994(d) and (B) the “discouraged factors” specified in 28 U.S.C. § 994(e); and the relation-
ship, if any, between specific offender characteristics and the statutory purposes of sentencing.
Historical
(amendment 386); November 1, 1994 (amendment 508); October 27, 2003 (amendment 651); November 1,
Note
§5H1.1. Age (Policy Statement)
Age (including youth) may be relevant in determining whether a departure is

warranted, if considerations based on age, individually or in combination with
other offender characteristics, are present to an unusual degree and distinguish
the case from the typical cases covered by the guidelines. Age may be a reason
to depart downward in a case in which the defendant is elderly and infirm and
where a form of punishment such as home confinement might be equally effi-
cient as and less costly than incarceration. Physical condition, which may be
related to age, is addressed at §5H1.4 (Physical Condition, Including Drug or
Alcohol Dependence or Abuse; Gambling Addiction).
Historical
(amendment 475); October 27, 2003 (amendment 651); November 1, 2004 (amendment 674); November 1,
Note
§5H1.2. Education and Vocational Skills (Policy Statement)
Education and vocational skills are not ordinarily relevant in determining

whether a departure is warranted, but the extent to which a defendant may
have misused special training or education to facilitate criminal activity is an
express guideline factor. See §3B1.3 (Abuse of Position of Trust or Use of Special
Skill).
Education and vocational skills may be relevant in determining the conditions

of probation or supervised release for rehabilitative purposes, for public protec-
tion by restricting activities that allow for the utilization of a certain skill, or in
determining the appropriate type of community service.
Note (amendment 674).

§5H1.4
§5H1.3. Mental and Emotional Conditions (Policy Statement)
Mental and emotional conditions may be relevant in determining whether a

departure is warranted, if such conditions, individually or in combination with
other offender characteristics, are present to an unusual degree and distinguish
the case from the typical cases covered by the guidelines. See also Chapter Five,
Part K, Subpart 2 (Other Grounds for Departure).
In certain cases a downward departure may be appropriate to accomplish a spe-

cific treatment purpose. See §5C1.1, Application Note 7.
Mental and emotional conditions may be relevant in determining the conditions

of probation or supervised release; e.g., participation in a mental health pro-
gram (see §§5B1.3(d)(5) and 5D1.3(d)(5)).
Historical
Note
§5H1.4. Physical Condition, Including Drug or Alcohol Dependence or Abuse;

Gambling Addiction (Policy Statement)
Physical condition or appearance, including physique, may be relevant in de-

termining whether a departure is warranted, if the condition or appearance,
individually or in combination with other offender characteristics, is present to
an unusual degree and distinguishes the case from the typical cases covered by
the guidelines. An extraordinary physical impairment may be a reason to de-
part downward; e.g., in the case of a seriously infirm defendant, home detention
may be as efficient as, and less costly than, imprisonment.
Drug or alcohol dependence or abuse ordinarily is not a reason for a downward

departure. Substance abuse is highly correlated to an increased propensity to
commit crime. Due to this increased risk, it is highly recommended that a de-
fendant who is incarcerated also be sentenced to supervised release with a re-
quirement that the defendant participate in an appropriate substance abuse
program (see §5D1.3(d)(4)). If participation in a substance abuse program is re-
quired, the length of supervised release should take into account the length of
time necessary for the probation office to judge the success of the program.
In certain cases a downward departure may be appropriate to accomplish a spe-

cific treatment purpose. See §5C1.1, Application Note 7.
In a case in which a defendant who is a substance abuser is sentenced to pro-

bation, it is strongly recommended that the conditions of probation contain a

§5H1.5
requirement that the defendant participate in an appropriate substance abuse

program (see §5B1.3(d)(4)).
Addiction to gambling is not a reason for a downward departure.
Historical
(amendment 569); October 27, 2003 (amendment 651); November 1, 2010 (amendment 739); November 1,
Note
§5H1.5. Employment Record (Policy Statement)
Employment record is not ordinarily relevant in determining whether a depar-

ture is warranted.
Employment record may be relevant in determining the conditions of probation

or supervised release (e.g., the appropriate hours of home detention).
§5H1.6. Family Ties and Responsibilities (Policy Statement)
In sentencing a defendant convicted of an offense other than an offense de-

scribed in the following paragraph, family ties and responsibilities are not or-
dinarily relevant in determining whether a departure may be warranted.
In sentencing a defendant convicted of an offense involving a minor victim un-

der section 1201, an offense under section 1591, or an offense under chapter 71,
109A, 110, or 117, of title 18, United States Code, family ties and responsibili-
ties and community ties are not relevant in determining whether a sentence
should be below the applicable guideline range.
Family responsibilities that are complied with may be relevant to the determi-
nation of the amount of restitution or fine.
Commentary
Application Note:
1. Circumstances to Consider.—
(A) In General.—In determining whether a departure is warranted under this policy state-
ment, the court shall consider the following non-exhaustive list of circumstances:
(i) The seriousness of the offense.

§5H1.7
(ii) The involvement in the offense, if any, of members of the defendant’s family.
(iii) The danger, if any, to members of the defendant’s family as a result of the offense.
(B) Departures Based on Loss of Caretaking or Financial Support.—A departure under

this policy statement based on the loss of caretaking or financial support of the defendant’s
family requires, in addition to the court’s consideration of the non-exhaustive list of circum-
stances in subdivision (A), the presence of the following circumstances:
(i) The defendant’s service of a sentence within the applicable guideline range will cause
a substantial, direct, and specific loss of essential caretaking, or essential financial
support, to the defendant’s family.
(ii) The loss of caretaking or financial support substantially exceeds the harm ordinarily
incident to incarceration for a similarly situated defendant. For example, the fact that
the defendant’s family might incur some degree of financial hardship or suffer to some
extent from the absence of a parent through incarceration is not in itself sufficient as
a basis for departure because such hardship or suffering is of a sort ordinarily incident
to incarceration.
(iii) The loss of caretaking or financial support is one for which no effective remedial or
ameliorative programs reasonably are available, making the defendant’s caretaking
or financial support irreplaceable to the defendant’s family.
(iv) The departure effectively will address the loss of caretaking or financial support.
Background: Section 401(b)(4) of Public Law 108–21 directly amended this policy statement to add
the second paragraph, effective April 30, 2003.
Historical Effective November 1, 1987. Amended effective November 1, 1991 (amendment 386); April 30, 2003 (amend-
Note ment 649); October 27, 2003 (amendment 651); November 1, 2004 (amendment 674).
§5H1.7. Role in the Offense (Policy Statement)
A defendant’s role in the offense is relevant in determining the applicable guide-

line range (see Chapter Three, Part B (Role in the Offense)) but is not a basis
for departing from that range (see subsection (d) of §5K2.0 (Grounds for Depar-
tures)).
Historical
Effective November 1, 1987. Amended effective October 27, 2003 (amendment 651).
Note

§5H1.8
§5H1.8. Criminal History (Policy Statement)
A defendant’s criminal history is relevant in determining the applicable crimi-

nal history category. See Chapter Four (Criminal History and Criminal Liveli-
hood). For grounds of departure based on the defendant’s criminal history,
see §4A1.3 (Departures Based on Inadequacy of Criminal History Category).
Historical
Note
§5H1.9. Dependence upon Criminal Activity for a Livelihood (Policy Statement)
The degree to which a defendant depends upon criminal activity for a livelihood
is relevant in determining the appropriate sentence. See Chapter Four, Part B
(Career Offenders and Criminal Livelihood).
Historical
Note
§5H1.10. Race, Sex, National Origin, Creed, Religion, and Socio-Economic Status
(Policy Statement)
These factors are not relevant in the determination of a sentence.
Historical
Note
§5H1.11. Military, Civic, Charitable, or Public Service; Employment-Related

Contributions; Record of Prior Good Works (Policy Statement)
Military service may be relevant in determining whether a departure is war-

ranted, if the military service, individually or in combination with other of-
fender characteristics, is present to an unusual degree and distinguishes the
case from the typical cases covered by the guidelines.
Civic, charitable, or public service; employment-related contributions; and sim-

ilar prior good works are not ordinarily relevant in determining whether a de-
parture is warranted.
Historical Effective November 1, 1991 (amendment 386). Amended effective November 1, 2004 (amendment 674); No-
Note vember 1, 2010 (amendment 739).

§5H1.12
§5H1.12. Lack of Guidance as a Youth and Similar Circumstances (Policy Statement)
Lack of guidance as a youth and similar circumstances indicating a disadvan-

taged upbringing are not relevant grounds in determining whether a departure
is warranted.
Historical
Note
PART I ― [NOT USED]

§5J1.1
PART J ― RELIEF FROM DISABILITY

Historical
Effective November 1, 1987. Amended effective June 15, 1988 (amendment 55).
Note
§5J1.1. Relief from Disability Pertaining to Convicted Persons Prohibited from Holding
Certain Positions (Policy Statement)
A collateral consequence of conviction of certain crimes described in 29 U.S.C.

§§ 504 and 1111 is the prohibition of convicted persons from service and em-
ployment with labor unions, employer associations, employee pension and wel-
fare benefit plans, and as labor relations consultants in the private sector. A
convicted person’s prohibited service or employment in such capacities without
having been granted one of the following three statutory procedures of admin-
istrative or judicial relief is subject to criminal prosecution. First, a disqualified
person whose citizenship rights have been fully restored to him or her in the
jurisdiction of conviction, following the revocation of such rights as a result of
the disqualifying conviction, is relieved of the disability. Second, a disqualified
person convicted after October 12, 1984, may petition the sentencing court to
reduce the statutory length of disability (thirteen years after date of sentencing
or release from imprisonment, whichever is later) to a lesser period (not less
than three years after date of conviction or release from imprisonment, which-
ever is later). Third, a disqualified person may petition either the United States
Parole Commission or a United States District Court judge to exempt his or her
service or employment in a particular prohibited capacity pursuant to the pro-
cedures set forth in 29 U.S.C. §§ 504(a)(B) and 1111(a)(B). In the case of a per-
son convicted of a disqualifying crime committed before November 1, 1987, the
United States Parole Commission will continue to process such exemption ap-
plications.
In the case of a person convicted of a disqualifying crime committed on or after

November 1, 1987, however, a petition for exemption from disability must be
directed to a United States District Court. If the petitioner was convicted of a
disqualifying federal offense, the petition is directed to the sentencing judge. If
the petitioner was convicted of a disqualifying state or local offense, the petition
is directed to the United States District Court for the district in which the of-
fense was committed. In such cases, relief shall not be given to aid rehabilita-
tion, but may be granted only following a clear demonstration by the convicted
person that he or she has been rehabilitated since commission of the disquali-
fying crime and can therefore be trusted not to endanger the organization in
the position for which he or she seeks relief from disability.
Historical
Effective November 1, 1987. Amended effective June 15, 1988 (amendment 56).
Note

§5K1.1
PART K ― DEPARTURES
1. SUBSTANTIAL ASSISTANCE TO AUTHORITIES
§5K1.1. Substantial Assistance to Authorities (Policy Statement)
Upon motion of the government stating that the defendant has provided sub-
stantial assistance in the investigation or prosecution of another person who
has committed an offense, the court may depart from the guidelines.
(a) The appropriate reduction shall be determined by the court for reasons
stated that may include, but are not limited to, consideration of the follow-
ing:
(1) the court’s evaluation of the significance and usefulness of the defend-
ant’s assistance, taking into consideration the government’s evalua-
tion of the assistance rendered;
(2) the truthfulness, completeness, and reliability of any information or

testimony provided by the defendant;
(3) the nature and extent of the defendant’s assistance;
(4) any injury suffered, or any danger or risk of injury to the defendant
or his family resulting from his assistance;
(5) the timeliness of the defendant’s assistance.
Commentary
Application Notes:
1. Under circumstances set forth in 18 U.S.C. § 3553(e) and 28 U.S.C. § 994(n), as amended, sub-
stantial assistance in the investigation or prosecution of another person who has committed an
offense may justify a sentence below a statutorily required minimum sentence.
2. The sentencing reduction for assistance to authorities shall be considered independently of any
reduction for acceptance of responsibility. Substantial assistance is directed to the investigation
and prosecution of criminal activities by persons other than the defendant, while acceptance of
responsibility is directed to the defendant’s affirmative recognition of responsibility for his own
conduct.
3. Substantial weight should be given to the government’s evaluation of the extent of the defend-
ant’s assistance, particularly where the extent and value of the assistance are difficult to ascer-
tain.
Background: A defendant’s assistance to authorities in the investigation of criminal activities has

been recognized in practice and by statute as a mitigating sentencing factor. The nature, extent, and

§5K1.2
significance of assistance can involve a broad spectrum of conduct that must be evaluated by the court
on an individual basis. Latitude is, therefore, afforded the sentencing judge to reduce a sentence based
upon variable relevant factors, including those listed above. The sentencing judge must, however, state
the reasons for reducing a sentence under this section. 18 U.S.C. § 3553(c). The court may elect to
provide its reasons to the defendant in camera and in writing under seal for the safety of the defendant
or to avoid disclosure of an ongoing investigation.
Historical
Note
§5K1.2. Refusal to Assist (Policy Statement)
A defendant’s refusal to assist authorities in the investigation of other persons

may not be considered as an aggravating sentencing factor.
Historical
Note
* * * * *
2. OTHER GROUNDS FOR DEPARTURE
Historical
Note
§5K2.0. Grounds for Departure (Policy Statement)
(a) UPWARD DEPARTURES IN GENERAL AND DOWNWARD DEPARTURES IN CRIMI-

NAL CASES OTHER THAN CHILD CRIMES AND SEXUAL OFFENSES.—
(1) IN GENERAL.—The sentencing court may depart from the applicable

guideline range if—
(A) in the case of offenses other than child crimes and sexual of-
fenses, the court finds, pursuant to 18 U.S.C. § 3553(b)(1), that
there exists an aggravating or mitigating circumstance; or
(B) in the case of child crimes and sexual offenses, the court finds,
pursuant to 18 U.S.C. § 3553(b)(2)(A)(i), that there exists an ag-
gravating circumstance,

§5K2.0
of a kind, or to a degree, not adequately taken into consideration by

the Sentencing Commission in formulating the guidelines that, in or-
der to advance the objectives set forth in 18 U.S.C. § 3553(a)(2),
should result in a sentence different from that described.
(2) DEPARTURES BASED ON CIRCUMSTANCES OF A KIND NOT ADEQUATELY

TAKEN INTO CONSIDERATION.—
(A) IDENTIFIED CIRCUMSTANCES.—This subpart (Chapter Five,

Part K, Subpart 2 (Other Grounds for Departure)) identifies
some of the circumstances that the Commission may have not
adequately taken into consideration in determining the applica-
ble guideline range (e.g., as a specific offense characteristic or
other adjustment). If any such circumstance is present in the
case and has not adequately been taken into consideration in de-
termining the applicable guideline range, a departure consistent
with 18 U.S.C. § 3553(b) and the provisions of this subpart may
be warranted.
(B) UNIDENTIFIED CIRCUMSTANCES.—A departure may be warranted

in the exceptional case in which there is present a circumstance
that the Commission has not identified in the guidelines but that
nevertheless is relevant to determining the appropriate sentence.
(3) DEPARTURES BASED ON CIRCUMSTANCES PRESENT TO A DEGREE NOT AD-

EQUATELY TAKEN INTO CONSIDERATION.—A departure may be war-
ranted in an exceptional case, even though the circumstance that
forms the basis for the departure is taken into consideration in deter-
mining the guideline range, if the court determines that such circum-
stance is present in the offense to a degree substantially in excess of,
or substantially below, that which ordinarily is involved in that kind
of offense.
(4) DEPARTURES BASED ON NOT ORDINARILY RELEVANT OFFENDER CHARAC-

TERISTICS AND OTHER CIRCUMSTANCES.—An offender characteristic or
other circumstance identified in Chapter Five, Part H (Offender Char-
acteristics) or elsewhere in the guidelines as not ordinarily relevant
in determining whether a departure is warranted may be relevant to
this determination only if such offender characteristic or other cir-
cumstance is present to an exceptional degree.
(b) DOWNWARD DEPARTURES IN CHILD CRIMES AND SEXUAL OFFENSES.—Under

18 U.S.C. § 3553(b)(2)(A)(ii), the sentencing court may impose a sentence
below the range established by the applicable guidelines only if the court
finds that there exists a mitigating circumstance of a kind, or to a degree,
that—

§5K2.0
(1) has been affirmatively and specifically identified as a permissible

ground of downward departure in the sentencing guidelines or policy
statements issued under section 994(a) of title 28, United States Code,
taking account of any amendments to such sentencing guidelines or
policy statements by act of Congress;
(2) has not adequately been taken into consideration by the Sentencing
Commission in formulating the guidelines; and
(3) should result in a sentence different from that described.
The grounds enumerated in this Part K of Chapter Five are the sole
grounds that have been affirmatively and specifically identified as a per-
missible ground of downward departure in these sentencing guidelines and
policy statements. Thus, notwithstanding any other reference to authority
to depart downward elsewhere in this Sentencing Manual, a ground of
downward departure has not been affirmatively and specifically identified
as a permissible ground of downward departure within the meaning of sec-
tion 3553(b)(2) unless it is expressly enumerated in this Part K as a ground
upon which a downward departure may be granted.
(c) LIMITATION ON DEPARTURES BASED ON MULTIPLE CIRCUMSTANCES.—The

court may depart from the applicable guideline range based on a combina-
tion of two or more offender characteristics or other circumstances, none of
which independently is sufficient to provide a basis for departure, only if—
(1) such offender characteristics or other circumstances, taken together,

make the case an exceptional one; and
(2) each such offender characteristic or other circumstance is—
(A) present to a substantial degree; and
(B) identified in the guidelines as a permissible ground for depar-

ture, even if such offender characteristic or other circumstance is
not ordinarily relevant to a determination of whether a departure
is warranted.
(d) PROHIBITED DEPARTURES.—Notwithstanding subsections (a) and (b) of this

policy statement, or any other provision in the guidelines, the court may
not depart from the applicable guideline range based on any of the follow-
ing circumstances:
(1) Any circumstance specifically prohibited as a ground for departure in

§§5H1.10 (Race, Sex, National Origin, Creed, Religion, and Socio-Eco-
nomic Status), 5H1.12 (Lack of Guidance as a Youth and Similar Cir-

§5K2.0
cumstances), the last sentence of 5H1.4 (Physical Condition, Includ-

ing Drug or Alcohol Dependence or Abuse; Gambling Addiction), and
the last sentence of 5K2.12 (Coercion and Duress).
(2) The defendant’s acceptance of responsibility for the offense, which

may be taken into account only under §3E1.1 (Acceptance of Respon-
sibility).
(3) The defendant’s aggravating or mitigating role in the offense, which

may be taken into account only under §3B1.1 (Aggravating Role) or
§3B1.2 (Mitigating Role), respectively.
(4) The defendant’s decision, in and of itself, to plead guilty to the offense
or to enter a plea agreement with respect to the offense (i.e., a depar-
ture may not be based merely on the fact that the defendant decided
to plead guilty or to enter into a plea agreement, but a departure may
be based on justifiable, non-prohibited reasons as part of a sentence
that is recommended, or agreed to, in the plea agreement and ac-
cepted by the court. See §6B1.2 (Standards for Acceptance of Plea
Agreement).
(5) The defendant’s fulfillment of restitution obligations only to the ex-

tent required by law including the guidelines (i.e., a departure may
not be based on unexceptional efforts to remedy the harm caused by
the offense).
(6) Any other circumstance specifically prohibited as a ground for depar-

ture in the guidelines.
(e) REQUIREMENT OF SPECIFIC WRITTEN REASONS FOR DEPARTURE.—If the court

departs from the applicable guideline range, it shall state, pursuant to
18 U.S.C. § 3553(c), its specific reasons for departure in open court at the
time of sentencing and, with limited exception in the case of statements
received in camera, shall state those reasons with specificity in the state-
ment of reasons form.
Commentary
Application Notes:
1. Definitions.—For purposes of this policy statement:
“Circumstance” includes, as appropriate, an offender characteristic or any other offense factor.
“Depart”, “departure”, “downward departure”, and “upward departure” have the meaning
given those terms in Application Note 1 of the Commentary to §1B1.1 (Application Instructions).

§5K2.0
2. Scope of this Policy Statement.—
(A) Departures Covered by this Policy Statement.—This policy statement covers depar-
tures from the applicable guideline range based on offense characteristics or offender char-
acteristics of a kind, or to a degree, not adequately taken into consideration in determining
that range. See 18 U.S.C. § 3553(b).
Subsection (a) of this policy statement applies to upward departures in all cases covered by
the guidelines and to downward departures in all such cases except for downward depar-
tures in child crimes and sexual offenses.
Subsection (b) of this policy statement applies only to downward departures in child crimes
and sexual offenses.
(B) Departures Covered by Other Guidelines.—This policy statement does not cover the
following departures, which are addressed elsewhere in the guidelines: (i) departures based
on the defendant’s criminal history (see Chapter Four (Criminal History and Criminal Live-
lihood), particularly §4A1.3 (Departures Based on Inadequacy of Criminal History Cate-
gory)); (ii) departures based on the defendant’s substantial assistance to the authorities
(see §5K1.1 (Substantial Assistance to Authorities)); and (iii) departures based on early dis-
position programs (see §5K3.1 (Early Disposition Programs)).
3. Kinds and Expected Frequency of Departures under Subsection (a).—As set forth in
subsection (a), there generally are two kinds of departures from the guidelines based on offense
characteristics and/or offender characteristics: (A) departures based on circumstances of a kind
not adequately taken into consideration in the guidelines; and (B) departures based on circum-
stances that are present to a degree not adequately taken into consideration in the guidelines.
(A) Departures Based on Circumstances of a Kind Not Adequately Taken into Ac-
count in Guidelines.—Subsection (a)(2) authorizes the court to depart if there exists an
aggravating or a mitigating circumstance in a case under 18 U.S.C. § 3553(b)(1), or an ag-
gravating circumstance in a case under 18 U.S.C. § 3553(b)(2)(A)(i), of a kind not ade-
quately taken into consideration in the guidelines.
(i) Identified Circumstances.—This subpart (Chapter Five, Part K, Subpart 2) iden-

tifies several circumstances that the Commission may have not adequately taken into
consideration in setting the offense level for certain cases. Offense guidelines in Chap-
ter Two (Offense Conduct) and adjustments in Chapter Three (Adjustments) some-
times identify circumstances the Commission may have not adequately taken into
consideration in setting the offense level for offenses covered by those guidelines. If
the offense guideline in Chapter Two or an adjustment in Chapter Three does not
adequately take that circumstance into consideration in setting the offense level for
the offense, and only to the extent not adequately taken into consideration, a depar-
ture based on that circumstance may be warranted.
(ii) Unidentified Circumstances.—A case may involve circumstances, in addition to

those identified by the guidelines, that have not adequately been taken into consider-
ation by the Commission, and the presence of any such circumstance may warrant
departure from the guidelines in that case. However, inasmuch as the Commission
has continued to monitor and refine the guidelines since their inception to take into
consideration relevant circumstances in sentencing, it is expected that departures
based on such unidentified circumstances will occur rarely and only in exceptional
cases.

§5K2.0
(B) Departures Based on Circumstances Present to a Degree Not Adequately Taken

into Consideration in Guidelines.—
(i) In General.—Subsection (a)(3) authorizes the court to depart if there exists an ag-
gravating or a mitigating circumstance in a case under 18 U.S.C. § 3553(b)(1), or an
aggravating circumstance in a case under 18 U.S.C. § 3553(b)(2)(A)(i), to a degree not
adequately taken into consideration in the guidelines. However, inasmuch as the
Commission has continued to monitor and refine the guidelines since their inception
to determine the most appropriate weight to be accorded the mitigating and aggra-
vating circumstances specified in the guidelines, it is expected that departures based
on the weight accorded to any such circumstance will occur rarely and only in excep-
tional cases.
(ii) Examples.—As set forth in subsection (a)(3), if the applicable offense guideline and
adjustments take into consideration a circumstance identified in this subpart, depar-
ture is warranted only if the circumstance is present to a degree substantially in ex-
cess of that which ordinarily is involved in the offense. Accordingly, a departure pur-
suant to §5K2.7 for the disruption of a governmental function would have to be sub-
stantial to warrant departure from the guidelines when the applicable offense guide-
line is bribery or obstruction of justice. When the guideline covering the mailing of
injurious articles is applicable, however, and the offense caused disruption of a gov-
ernmental function, departure from the applicable guideline range more readily would
be appropriate. Similarly, physical injury would not warrant departure from the
guidelines when the robbery offense guideline is applicable because the robbery guide-
line includes a specific adjustment based on the extent of any injury. However, be-
cause the robbery guideline does not deal with injury to more than one victim, depar-
ture may be warranted if several persons were injured.
(C) Departures Based on Circumstances Identified as Not Ordinarily Relevant.—Be-

cause certain circumstances are specified in the guidelines as not ordinarily relevant to
sentencing (see, e.g., Chapter Five, Part H (Specific Offender Characteristics)), a departure
based on any one of such circumstances should occur only in exceptional cases, and only if
the circumstance is present in the case to an exceptional degree. If two or more of such
circumstances each is present in the case to a substantial degree, however, and taken to-
gether make the case an exceptional one, the court may consider whether a departure would
be warranted pursuant to subsection (c). Departures based on a combination of not ordinar-
ily relevant circumstances that are present to a substantial degree should occur extremely
rarely and only in exceptional cases.
In addition, as required by subsection (e), each circumstance forming the basis for a depar-
ture described in this subdivision shall be stated with specificity in the statement of reasons
form.
4. Downward Departures in Child Crimes and Sexual Offenses.—
(A) Definition.—For purposes of this policy statement, the term “child crimes and sexual
offenses” means offenses under any of the following: 18 U.S.C. § 1201 (involving a minor
victim), 18 U.S.C. § 1591, or chapter 71, 109A, 110, or 117 of title 18, United States Code.
(B) Standard for Departure.—
(i) Requirement of Affirmative and Specific Identification of Departure

Ground.—The standard for a downward departure in child crimes and sexual of-
fenses differs from the standard for other departures under this policy statement in

§5K2.0
that it includes a requirement, set forth in 18 U.S.C. § 3553(b)(2)(A)(ii)(I) and subsec-

tion (b)(1) of this guideline, that any mitigating circumstance that forms the basis for
such a downward departure be affirmatively and specifically identified as a ground
for downward departure in this part (i.e., Chapter Five, Part K).
(ii) Application of Subsection (b)(2).—The commentary in Application Note 3 of this

policy statement, except for the commentary in Application Note 3(A)(ii) relating to
unidentified circumstances, shall apply to the court’s determination of whether a case
meets the requirement, set forth in subsection 18 U.S.C. § 3553(b)(2)(A)(ii)(II) and
subsection (b)(2) of this policy statement, that the mitigating circumstance forming
the basis for a downward departure in child crimes and sexual offenses be of kind, or
to a degree, not adequately taken into consideration by the Commission.
5. Departures Based on Plea Agreements.—Subsection (d)(4) prohibits a downward departure

based only on the defendant’s decision, in and of itself, to plead guilty to the offense or to enter a
plea agreement with respect to the offense. Even though a departure may not be based merely
on the fact that the defendant agreed to plead guilty or enter a plea agreement, a departure may
be based on justifiable, non-prohibited reasons for departure as part of a sentence that is recom-
mended, or agreed to, in the plea agreement and accepted by the court. See §6B1.2 (Standards
for Acceptance of Plea Agreements). In cases in which the court departs based on such reasons
as set forth in the plea agreement, the court must state the reasons for departure with specificity
in the statement of reasons form, as required by subsection (e).
Background: This policy statement sets forth the standards for departing from the applicable guide-
line range based on offense and offender characteristics of a kind, or to a degree, not adequately con-
sidered by the Commission. Circumstances the Commission has determined are not ordinarily rele-
vant to determining whether a departure is warranted or are prohibited as bases for departure are
addressed in Chapter Five, Part H (Offender Characteristics) and in this policy statement. Other de-
partures, such as those based on the defendant’s criminal history, the defendant’s substantial assis-
tance to authorities, and early disposition programs, are addressed elsewhere in the guidelines.
As acknowledged by Congress in the Sentencing Reform Act and by the Commission when the
first set of guidelines was promulgated, “it is difficult to prescribe a single set of guidelines that en-
compasses the vast range of human conduct potentially relevant to a sentencing decision.” (See Chap-
ter One, Part A). Departures, therefore, perform an integral function in the sentencing guideline sys-
tem. Departures permit courts to impose an appropriate sentence in the exceptional case in which
mechanical application of the guidelines would fail to achieve the statutory purposes and goals of sen-
tencing. Departures also help maintain “sufficient flexibility to permit individualized sentences when
warranted by mitigating or aggravating factors not taken into account in the establishment of general
sentencing practices.” 28 U.S.C. § 991(b)(1)(B). By monitoring when courts depart from the guidelines
and by analyzing their stated reasons for doing so, along with appellate cases reviewing these depar-
tures, the Commission can further refine the guidelines to specify more precisely when departures
should and should not be permitted.
As reaffirmed in the Prosecutorial Remedies and Other Tools to end the Exploitation of Children
Today Act of 2003 (the “PROTECT Act”, Public Law 108–21), circumstances warranting departure
should be rare. Departures were never intended to permit sentencing courts to substitute their policy
judgments for those of Congress and the Sentencing Commission. Departure in such circumstances
would produce unwarranted sentencing disparity, which the Sentencing Reform Act was designed to
avoid.

§5K2.1
In order for appellate courts to fulfill their statutory duties under 18 U.S.C. § 3742 and for the
Commission to fulfill its ongoing responsibility to refine the guidelines in light of information it re-
ceives on departures, it is essential that sentencing courts state with specificity the reasons for depar-
ture, as required by the PROTECT Act.
This policy statement, including its commentary, was substantially revised, effective October 27,
2003, in response to directives contained in the PROTECT Act, particularly the directive in sec-
tion 401(m) of that Act to—
“(1) review the grounds of downward departure that are authorized by the sen-
tencing guidelines, policy statements, and official commentary of the Sentencing Com-
mission; and
(2) promulgate, pursuant to section 994 of title 28, United States Code—
(A) appropriate amendments to the sentencing guidelines, policy state-
ments, and official commentary to ensure that the incidence of downward depar-
tures is substantially reduced;
(B) a policy statement authorizing a departure pursuant to an early dispo-
sition program; and
(C) any other conforming amendments to the sentencing guidelines, policy
statements, and official commentary of the Sentencing Commission necessitated
by the Act, including a revision of . . . section 5K2.0”.
The substantial revision of this policy statement in response to the PROTECT Act was intended
to refine the standards applicable to departures while giving due regard for concepts, such as the
“heartland”, that have evolved in departure jurisprudence over time.
Section 401(b)(1) of the PROTECT Act directly amended this policy statement to add subsec-
tion (b), effective April 30, 2003.
Effective November 1, 1987. Amended effective June 15, 1988 (amendment 57); November 1, 1990 (amend-
ment 358); November 1, 1994 (amendment 508); November 1, 1997 (amendment 561); November 1, 1998
Historical
(amendment 585); April 30, 2003 (amendment 649); October 27, 2003 (amendment 651); November 1, 2008
Note
§5K2.1. Death (Policy Statement)
If death resulted, the court may increase the sentence above the authorized
guideline range.
Loss of life does not automatically suggest a sentence at or near the statutory
maximum. The sentencing judge must give consideration to matters that would
normally distinguish among levels of homicide, such as the defendant’s state of
mind and the degree of planning or preparation. Other appropriate factors are
whether multiple deaths resulted, and the means by which life was taken. The
extent of the increase should depend on the dangerousness of the defendant’s
conduct, the extent to which death or serious injury was intended or knowingly
risked, and the extent to which the offense level for the offense of conviction, as
determined by the other Chapter Two guidelines, already reflects the risk of

§5K2.2
personal injury. For example, a substantial increase may be appropriate if the

death was intended or knowingly risked or if the underlying offense was one for
which base offense levels do not reflect an allowance for the risk of personal
injury, such as fraud.
Historical
Note
§5K2.2. Physical Injury (Policy Statement)
If significant physical injury resulted, the court may increase the sentence
above the authorized guideline range. The extent of the increase ordinarily
should depend on the extent of the injury, the degree to which it may prove
permanent, and the extent to which the injury was intended or knowingly
risked. When the victim suffers a major, permanent disability and when such
injury was intentionally inflicted, a substantial departure may be appropriate.
If the injury is less serious or if the defendant (though criminally negligent) did
not knowingly create the risk of harm, a less substantial departure would be
indicated. In general, the same considerations apply as in §5K2.1.
Historical
Note
§5K2.3. Extreme Psychological Injury (Policy Statement)
If a victim or victims suffered psychological injury much more serious than that
normally resulting from commission of the offense, the court may increase the
sentence above the authorized guideline range. The extent of the increase ordi-
narily should depend on the severity of the psychological injury and the extent
to which the injury was intended or knowingly risked.
Normally, psychological injury would be sufficiently severe to warrant applica-

tion of this adjustment only when there is a substantial impairment of the in-
tellectual, psychological, emotional, or behavioral functioning of a victim, when
the impairment is likely to be of an extended or continuous duration, and when
the impairment manifests itself by physical or psychological symptoms or by
changes in behavior patterns. The court should consider the extent to which
such harm was likely, given the nature of the defendant’s conduct.
Historical
Note

§5K2.7
§5K2.4. Abduction or Unlawful Restraint (Policy Statement)
If a person was abducted, taken hostage, or unlawfully restrained to facilitate

commission of the offense or to facilitate the escape from the scene of the crime,
the court may increase the sentence above the authorized guideline range.
Historical
Note
§5K2.5. Property Damage or Loss (Policy Statement)
If the offense caused property damage or loss not taken into account within the
guidelines, the court may increase the sentence above the authorized guideline
range. The extent of the increase ordinarily should depend on the extent to
which the harm was intended or knowingly risked and on the extent to which
the harm to property is more serious than other harm caused or risked by the
conduct relevant to the offense of conviction.
Historical
Note
§5K2.6. Weapons and Dangerous Instrumentalities (Policy Statement)
If a weapon or dangerous instrumentality was used or possessed in the com-

mission of the offense the court may increase the sentence above the authorized
guideline range. The extent of the increase ordinarily should depend on the
dangerousness of the weapon, the manner in which it was used, and the extent
to which its use endangered others. The discharge of a firearm might warrant
a substantial sentence increase.
Historical
Note
§5K2.7. Disruption of Governmental Function (Policy Statement)
If the defendant’s conduct resulted in a significant disruption of a governmental

function, the court may increase the sentence above the authorized guideline
range to reflect the nature and extent of the disruption and the importance of
the governmental function affected. Departure from the guidelines ordinarily

§5K2.8
would not be justified when the offense of conviction is an offense such as brib-
ery or obstruction of justice; in such cases interference with a governmental
function is inherent in the offense, and unless the circumstances are unusual
the guidelines will reflect the appropriate punishment for such interference.
Historical
Note
§5K2.8. Extreme Conduct (Policy Statement)
If the defendant’s conduct was unusually heinous, cruel, brutal, or degrading to

the victim, the court may increase the sentence above the guideline range to
reflect the nature of the conduct. Examples of extreme conduct include torture
of a victim, gratuitous infliction of injury, or prolonging of pain or humiliation.
Historical
Note
§5K2.9. Criminal Purpose (Policy Statement)
If the defendant committed the offense in order to facilitate or conceal the com-
mission of another offense, the court may increase the sentence above the guide-
line range to reflect the actual seriousness of the defendant’s conduct.
Historical
Note
§5K2.10. Victim’s Conduct (Policy Statement)
If the victim’s wrongful conduct contributed significantly to provoking the of-

fense behavior, the court may reduce the sentence below the guideline range to
reflect the nature and circumstances of the offense. In deciding whether a sen-
tence reduction is warranted, and the extent of such reduction, the court should
consider the following:
(1) The size and strength of the victim, or other relevant physical characteris-
tics, in comparison with those of the defendant.
(2) The persistence of the victim’s conduct and any efforts by the defendant to
prevent confrontation.

§5K2.11
(3) The danger reasonably perceived by the defendant, including the victim’s
reputation for violence.
(4) The danger actually presented to the defendant by the victim.
(5) Any other relevant conduct by the victim that substantially contributed to
the danger presented.
(6) The proportionality and reasonableness of the defendant’s response to the

victim’s provocation.
Victim misconduct ordinarily would not be sufficient to warrant application of

this provision in the context of offenses under Chapter Two, Part A, Subpart 3
(Criminal Sexual Abuse). In addition, this provision usually would not be rele-
vant in the context of non-violent offenses. There may, however, be unusual
circumstances in which substantial victim misconduct would warrant a reduced
penalty in the case of a non-violent offense. For example, an extended course of
provocation and harassment might lead a defendant to steal or destroy property
in retaliation.
Historical
Note
§5K2.11. Lesser Harms (Policy Statement)
Sometimes, a defendant may commit a crime in order to avoid a perceived

greater harm. In such instances, a reduced sentence may be appropriate, pro-
vided that the circumstances significantly diminish society’s interest in punish-
ing the conduct, for example, in the case of a mercy killing. Where the interest
in punishment or deterrence is not reduced, a reduction in sentence is not war-
ranted. For example, providing defense secrets to a hostile power should receive
no lesser punishment simply because the defendant believed that the govern-
ment’s policies were misdirected.
In other instances, conduct may not cause or threaten the harm or evil sought
to be prevented by the law proscribing the offense at issue. For example, where
a war veteran possessed a machine gun or grenade as a trophy, or a school
teacher possessed controlled substances for display in a drug education pro-
gram, a reduced sentence might be warranted.
Historical
Note

§5K2.12
§5K2.12. Coercion and Duress (Policy Statement)
If the defendant committed the offense because of serious coercion, blackmail

or duress, under circumstances not amounting to a complete defense, the court
may depart downward. The extent of the decrease ordinarily should depend on
the reasonableness of the defendant’s actions, on the proportionality of the de-
fendant’s actions to the seriousness of coercion, blackmail, or duress involved,
and on the extent to which the conduct would have been less harmful under the
circumstances as the defendant believed them to be. Ordinarily coercion will be
sufficiently serious to warrant departure only when it involves a threat of phys-
ical injury, substantial damage to property or similar injury resulting from the
unlawful action of a third party or from a natural emergency. Notwithstanding
this policy statement, personal financial difficulties and economic pressures
upon a trade or business do not warrant a downward departure.
Historical Effective November 1, 1987. Amended effective October 27, 2003 (amendment 651); November 1, 2004
§5K2.13. Diminished Capacity (Policy Statement)
A downward departure may be warranted if (1) the defendant committed the

offense while suffering from a significantly reduced mental capacity; and (2) the
significantly reduced mental capacity contributed substantially to the commis-
sion of the offense. Similarly, if a departure is warranted under this policy state-
ment, the extent of the departure should reflect the extent to which the reduced
mental capacity contributed to the commission of the offense.
However, the court may not depart below the applicable guideline range if
(1) the significantly reduced mental capacity was caused by the voluntary use
of drugs or other intoxicants; (2) the facts and circumstances of the defendant’s
offense indicate a need to protect the public because the offense involved actual
violence or a serious threat of violence; (3) the defendant’s criminal history in-
dicates a need to incarcerate the defendant to protect the public; or (4) the de-
fendant has been convicted of an offense under chapter 71, 109A, 110, or 117,
of title 18, United States Code.
Commentary
Application Note:
1. For purposes of this policy statement—
“Significantly reduced mental capacity” means the defendant, although convicted, has a sig-
nificantly impaired ability to (A) understand the wrongfulness of the behavior comprising the
offense or to exercise the power of reason; or (B) control behavior that the defendant knows is
wrongful.

§5K2.16
Background: Section 401(b)(5) of Public Law 108–21 directly amended this policy statement to add
subdivision (4), effective April 30, 2003.
Historical Effective November 1, 1987. Amended effective November 1, 1998 (amendment 583); April 30, 2003 (amend-
Note ment 649); October 27, 2003 (amendment 651); November 1, 2004 (amendment 674).
§5K2.14. Public Welfare (Policy Statement)
If national security, public health, or safety was significantly endangered, the

court may depart upward to reflect the nature and circumstances of the offense.
Historical
Note
§5K2.15. [Deleted]
Historical Section 5K2.15 (Terrorism (Policy Statement)), effective November 1, 1989 (amendment 292), was deleted
Note effective November 1, 1995 (amendment 526).
§5K2.16. Voluntary Disclosure of Offense (Policy Statement)
If the defendant voluntarily discloses to authorities the existence of, and accepts
responsibility for, the offense prior to the discovery of such offense, and if such
offense was unlikely to have been discovered otherwise, a downward departure
may be warranted. For example, a downward departure under this section
might be considered where a defendant, motivated by remorse, discloses an of-
fense that otherwise would have remained undiscovered. This provision does
not apply where the motivating factor is the defendant’s knowledge that discov-
ery of the offense is likely or imminent, or where the defendant’s disclosure
occurs in connection with the investigation or prosecution of the defendant for
related conduct.
Historical
Note

§5K2.17
§5K2.17. Semiautomatic Firearms Capable of Accepting Large Capacity Magazine

(Policy Statement)
If the defendant possessed a semiautomatic firearm capable of accepting a large

capacity magazine in connection with a crime of violence or controlled sub-
stance offense, an upward departure may be warranted. A “semiautomatic fire-
arm capable of accepting a large capacity magazine” means a semiautomatic
firearm that has the ability to fire many rounds without reloading because at
the time of the offense (1) the firearm had attached to it a magazine or similar
device that could accept more than 15 rounds of ammunition; or (2) a magazine
or similar device that could accept more than 15 rounds of ammunition was in
close proximity to the firearm. The extent of any increase should depend upon
the degree to which the nature of the weapon increased the likelihood of death
or injury in the circumstances of the particular case.
Commentary
Application Note:
1. “Crime of violence” and “controlled substance offense” are defined in §4B1.2 (Definitions of
Terms Used in Section 4B1.1).
§5K2.18. Violent Street Gangs (Policy Statement)
If the defendant is subject to an enhanced sentence under 18 U.S.C. § 521 (per-

taining to criminal street gangs), an upward departure may be warranted. The
purpose of this departure provision is to enhance the sentences of defendants
who participate in groups, clubs, organizations, or associations that use vio-
lence to further their ends. It is to be noted that there may be cases in which
18 U.S.C. § 521 applies, but no violence is established. In such cases, it is ex-
pected that the guidelines will account adequately for the conduct and, conse-
quently, this departure provision would not apply.
Historical
Note
§5K2.19. [Deleted]
Historical Section 5K2.19 (Post-Sentencing Rehabilitative Efforts) (Policy Statement), effective November 1, 2000
Note (amendment 602), was deleted effective November 1, 2012 (amendment 768).

§5K2.20
§5K2.20. Aberrant Behavior (Policy Statement)
(a) IN GENERAL.—Except where a defendant is convicted of an offense involv-

ing a minor victim under section 1201, an offense under section 1591, or
an offense under chapter 71, 109A, 110, or 117, of title 18, United States
Code, a downward departure may be warranted in an exceptional case if
(1) the defendant’s criminal conduct meets the requirements of subsec-
tion (b); and (2) the departure is not prohibited under subsection (c).
(b) REQUIREMENTS.—The court may depart downward under this policy state-
ment only if the defendant committed a single criminal occurrence or sin-
gle criminal transaction that (1) was committed without significant plan-
ning; (2) was of limited duration; and (3) represents a marked deviation by
the defendant from an otherwise law-abiding life.
(c) PROHIBITIONS BASED ON THE PRESENCE OF CERTAIN CIRCUMSTANCES.—The

court may not depart downward pursuant to this policy statement if any
of the following circumstances are present:
(1) The offense involved serious bodily injury or death.
(2) The defendant discharged a firearm or otherwise used a firearm or a

dangerous weapon.
(3) The instant offense of conviction is a serious drug trafficking offense.
(4) The defendant has either of the following: (A) more than one criminal
history point, as determined under Chapter Four (Criminal History
and Criminal Livelihood) before application of subsection (b) of §4A1.3
(Departures Based on Inadequacy of Criminal History Category); or
(B) a prior federal or state felony conviction, or any other significant
prior criminal behavior, regardless of whether the conviction or sig-
nificant prior criminal behavior is countable under Chapter Four.
Commentary
Application Notes:
1. Definitions.—For purposes of this policy statement:
“Dangerous weapon,” “firearm,” “otherwise used,” and “serious bodily injury” have the
meaning given those terms in the Commentary to §1B1.1 (Application Instructions).
“Serious drug trafficking offense” means any controlled substance offense under title 21,
United States Code, other than simple possession under 21 U.S.C. § 844, that provides for a
mandatory minimum term of imprisonment of five years or greater, regardless of whether the
defendant meets the criteria of §5C1.2 (Limitation on Applicability of Statutory Mandatory Min-
imum Sentences in Certain Cases).

§5K2.21
2. Repetitious or Significant, Planned Behavior.—Repetitious or significant, planned behav-

ior does not meet the requirements of subsection (b). For example, a fraud scheme generally
would not meet such requirements because such a scheme usually involves repetitive acts, rather
than a single occurrence or single criminal transaction, and significant planning.
3. Other Circumstances to Consider.—In determining whether the court should depart under
this policy statement, the court may consider the defendant’s (A) mental and emotional condi-
tions; (B) employment record; (C) record of prior good works; (D) motivation for committing the
offense; and (E) efforts to mitigate the effects of the offense.
Background: Section 401(b)(3) of Public Law 108–21 directly amended subsection (a) of this policy
statement, effective April 30, 2003.
Historical Effective November 1, 2000 (amendment 603). Amended effective April 30, 2003 (amendment 649); Octo-
Note ber 27, 2003 (amendment 651).
§5K2.21. Dismissed and Uncharged Conduct (Policy Statement)
The court may depart upward to reflect the actual seriousness of the offense
based on conduct (1) underlying a charge dismissed as part of a plea agreement
in the case, or underlying a potential charge not pursued in the case as part of
a plea agreement or for any other reason; and (2) that did not enter into the
determination of the applicable guideline range.
Historical
Note
§5K2.22. Specific Offender Characteristics as Grounds for Downward Departure in

Child Crimes and Sexual Offenses (Policy Statement)
In sentencing a defendant convicted of an offense involving a minor victim un-

der section 1201, an offense under section 1591, or an offense under chapter 71,
109A, 110, or 117, of title 18, United States Code:
(1) Age may be a reason to depart downward only if and to the extent permit-
ted by §5H1.1.
(2) An extraordinary physical impairment may be a reason to depart down-

ward only if and to the extent permitted by §5H1.4.
(3) Drug, alcohol, or gambling dependence or abuse is not a reason to depart

downward.

§5K2.24
Commentary
Background: Section 401(b)(2) of Public Law 108–21 directly amended Chapter Five, Part K, to add
this policy statement, effective April 30, 2003.
Historical
Effective April 30, 2003 (amendment 649). Amended effective November 1, 2004 (amendment 674).
Note
§5K2.23. Discharged Terms of Imprisonment (Policy Statement)
A downward departure may be appropriate if the defendant (1) has completed

serving a term of imprisonment; and (2) subsection (b) of §5G1.3 (Imposition of
a Sentence on a Defendant Subject to Undischarged Term of Imprisonment or
Anticipated Term of Imprisonment) would have provided an adjustment had
that completed term of imprisonment been undischarged at the time of sentenc-
ing for the instant offense. Any such departure should be fashioned to achieve
a reasonable punishment for the instant offense.
§5K2.24. Commission of Offense While Wearing or Displaying Unauthorized or Coun-

terfeit Insignia or Uniform (Policy Statement)
If, during the commission of the offense, the defendant wore or displayed an
official, or counterfeit official, insignia or uniform received in violation of
18 U.S.C. § 716, an upward departure may be warranted.
Commentary
Application Note:
1. Definition.—For purposes of this policy statement, “official insignia or uniform” has the
meaning given that term in 18 U.S.C. § 716(c)(3).
Historical
Note
* * * * *

§5K3.1
3. EARLY DISPOSITION PROGRAMS
Historical
Effective October 27, 2003 (amendment 651).
Note
§5K3.1. Early Disposition Programs (Policy Statement)
Upon motion of the Government, the court may depart downward not more than
4 levels pursuant to an early disposition program authorized by the Attorney
General of the United States and the United States Attorney for the district in
which the court resides.
Commentary
Background: This policy statement implements the directive to the Commission in sec-
tion 401(m)(2)(B) of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children
Today Act of 2003 (the “PROTECT Act”, Public Law 108–21).
Historical
Effective October 27, 2003 (amendment 651).
Note

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CHAPTER FIVE

DETERMINING THE SENTENCE

PART A ― SENTENCING TABLE

The Sentencing Table used to determine the guideline range follows:

406 ║ Guidelines Manual (November 1, 2018)

Guidelines Manual (November 1, 2018) ║ 407

Commentary to Sentencing Table

408 ║ Guidelines Manual (November 1, 2018)

§5B1.1. Imposition of a Term of Probation

(a) Subject to the statutory restrictions in subsection (b) below, a sentence of

(1) the applicable guideline range is in Zone A of the Sentencing Table;

(2) the applicable guideline range is in Zone B of the Sentencing Table

(b) A sentence of probation may not be imposed in the event:

(1) the offense of conviction is a Class A or B felony, 18 U.S.C.

(2) the offense of conviction expressly precludes probation as a sentence,

(3) the defendant is sentenced at the same time to a sentence of impris-

Guidelines Manual (November 1, 2018) ║ 409

§5B1.2. Term of Probation

(a) When probation is imposed, the term shall be:

(2) no more than three years in any other case.

410 ║ Guidelines Manual (November 1, 2018)

§5B1.3. Conditions of Probation

(a) MANDATORY CONDITIONS

(4) For a domestic violence crime as defined in 18 U.S.C. § 3561(b) by a

Guidelines Manual (November 1, 2018) ║ 411

(b) DISCRETIONARY CONDITIONS

412 ║ Guidelines Manual (November 1, 2018)

(c) “STANDARD” CONDITIONS (POLICY STATEMENT)

The following “standard” conditions are recommended for probation. Sev-

Guidelines Manual (November 1, 2018) ║ 413

is not possible due to unanticipated circumstances, the defendant

(9) If the defendant is arrested or questioned by a law enforcement of-

(d) “SPECIAL” CONDITIONS (POLICY STATEMENT)

The following “special” conditions of probation are recommended in the cir-

(1) SUPPORT OF DEPENDENTS

(A) If the defendant has one or more dependents — a condition spec-

(B) If the defendant is ordered by the government to make child sup-

414 ║ Guidelines Manual (November 1, 2018)

(2) DEBT OBLIGATIONS

If an installment schedule of payment of restitution or a fine is im-

(3) ACCESS TO FINANCIAL INFORMATION

If the court imposes an order of restitution, forfeiture, or notice to vic-

(4) SUBSTANCE ABUSE

If the court has reason to believe that the defendant is an abuser of

(5) MENTAL HEALTH PROGRAM PARTICIPATION

Guidelines Manual (November 1, 2018) ║ 415

(7) SEX OFFENSES

If the instant offense of conviction is a sex offense, as defined in Ap-

(A) A condition requiring the defendant to participate in a program

(B) A condition limiting the use of a computer or an interactive com-

(C) A condition requiring the defendant to submit to a search, at any

(e) ADDITIONAL CONDITIONS (POLICY STATEMENT)

The following “special conditions” may be appropriate on a case-by-case

(1) COMMUNITY CONFINEMENT

Residence in a community treatment center, halfway house or similar

(2) HOME DETENTION

Home detention may be imposed as a condition of probation but only

(3) COMMUNITY SERVICE