United States Code

section 3553(a)(2) of title 18, United States Code.

(n) The Commission shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by statute as minimum sentence, to take into account a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense.

(o) The Commission periodically shall review and revise, in consideration of comments and data coming to its attention, the guidelines promulgated pursuant to the provisions of this section. In fulfilling its duties and in exercising its powers, the Commission shall consult with authorities on, and individual and institutional representatives of, various aspects of the Federal criminal justice system. The United States Probation System, the Bureau of Prisons, the Judicial Conference of the United States, the Criminal Division of the United States Department of Justice, and a representative of the Federal Public Defenders shall submit to the Commission any observations, comments, or questions pertinent to the work of the Commission whenever they believe such communication would be useful, and shall, at least annually, submit to the Commission a written report commenting on the operation of the Commission's guidelines, suggesting changes in the guidelines that appear to be warranted, and otherwise assessing the Commission's work.

(p) The Commission, at or after the beginning of a regular session of Congress but not later than the first day of May, shall report to the Congress any amendments of the guidelines promulgated pursuant to subsection (a)(1), and a report of the reasons therefor, and the amended guidelines shall take effect one hundred and eighty days after the Commission reports them, except to the extent the effective date is enlarged or the guidelines are disapproved or modified by Act of Congress.

(q) The Commission and the Bureau of Prisons shall submit to Congress an analysis and recommendations concerning maximum utilization of resources to deal effectively with the Federal prison population. Such report shall be based upon consideration of a variety of alternatives, including

(1) modernization of existing facilities;

(2) inmate classification and periodic review of such classification for use in placing inmates in the least restrictive facility necessary to ensure adequate security; and

(3) use of existing Federal facilities, such as those currently within military jurisdiction.

(r) The Commission, not later than two years after the initial set of sentencing guidelines promulgated under subsection (a) goes into effect, and thereafter whenever it finds it advisable, shall recommend to the Congress that it raise or lower the grades, or otherwise modify the maximum penalties, of those offenses for which such an adjustment appears appropriate.

(s) The Commission shall give due consideration to any petition filed by a defendant requesting modification of the guidelines utilized in the sentencing of such defendant, on the

basis of changed circumstances unrelated to the defendant, including changes in—

(1) the community view of the gravity of the offense;

(2) the public concern generated by the offense; and

(3) the deterrent effect particular sentences may have on the commission of the offense by others.

(t) The Commission, in promulgating general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A) of title 18, shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples. Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling

reason.

(u) If the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.

(v) The Commission shall ensure that the general policy statements promulgated pursuant to subsection (a)(2) include a policy limiting consecutive terms of imprisonment for an offense involving a violation of a general prohibition and for an offense involving a violation of a specific prohibition encompassed within the general prohibition.

(w) The appropriate judge or officer shall submit to the Commission in connection with each sentence imposed (other than a sentence imposed for a petty offense, as defined in title 18, for which there is no applicable sentencing guideline) a written report of the sentence, the offense for which it is imposed, the age, race, and sex of the offender, information regarding factors made relevant by the guidelines, and such other information as the Commission finds appropriate. The Commission shall submit to Congress at least annually an analysis of these reports and any recommendations for legislation that the Commission concludes is warranted by that analysis.

(x) The provisions of section 553 of title 5, relating to publication in the Federal Register and public hearing procedure, shall apply to the promulgation of guidelines pursuant to this section.

(Added Pub. L. 98-473, title II, § 217(a), Oct. 12, 1984, 98 Stat. 2019, and amended Pub. L. 99-217, § 3, Dec. 26, 1985, 99 Stat. 1728; Pub. L. 99-363, § 2, July 11, 1986, 100 Stat. 770; Pub. L. 99-570, title I, §§ 1006(b), 1008, Oct. 27, 1986, 100 Stat. 3207-7; Pub. L. 99-646, §§ 6(b), 56, Nov. 10, 1986, 100 Stat. 3592, 3611; Pub. L. 100-182, §§ 16(b), 23, Dec. 7, 1987, 101 Stat. 1269, 1271.)

REFERENCES IN TEXT

The Federal Rules of Criminal Procedure, referred to in subsec. (a)(2)(E), are set out in the Appendix to Title 18, Crimes and Criminal Procedure.

Section 1 of the Act of September 15, 1980 (21 U.S.C. 955a), referred to in subsec. (h)(1)(B), (2)(B), was clas

sified to section 955a of Title 21, Food and Drugs, prior to the general amendment of Act September 15, 1980, by Pub. L. 99-570, title III, § 3202, Oct. 27, 1986, 100 Stat. 3207-95, and Pub. L. 99-640, § 17, Nov. 10, 1986, 100 Stat. 3552, which restated the provisions of former section 1 of Act September 15, 1980, in the new section 3 of Act September 15, 1980, which is classified to section 1903 of Title 46, Appendix, Shipping. For complete classification of this Act to the Code, see section 1901 of Title 46, Appendix, and Tables.

AMENDMENTS

1987-Subsec. (r). Pub. L. 100-182, § 23(a), substituted "two years" for "one year".

Subsec. (s). Pub. L. 100-182, § 23(b), struck out at end: "Within one hundred and eighty days of the filing of such petition the Commission shall provide written notice to the defendant whether or not it has approved the petition. If the petition is disapproved the written notice shall contain the reasons for such disapproval. The Commission shall submit to the Congress at least annually an analysis of such written notices."

Subsec. (w). Pub. L. 100-182, § 16(b), inserted "(other than a sentence imposed for a petty offense, as defined in title 18, for which there is no applicable sentencing guideline)" after "each sentence imposed".

1986-Subsec. (a)(2)(C). Pub. L. 99-363, § 2(1)(B), amended subpar. (C) generally, inserting "3564," after "3563(c),".

Subsec. (a)(2)(D) to (F). Pub. L. 99-363, § 2(1)(A), (C), added subpar. (D) and redesignated former subpars. (D) and (E) as (E) and (F), respectively.

Subsec. (a)(3). Pub. L. 99-570, § 1006(b), inserted "and revocation of supervised release" after "supervised release".

Pub. L. 99-363, § 2(2), amended par. (3) generally. Prior to amendment, par. (3) read as follows: "guidelines or general policy statements regarding the appropriate use of the probation revocation provisions set forth in section 3565 of title 18, and the provisions for modification of the term or conditions of probation or supervised release set forth in sections 3563(c), 3564(d), and 3583(e) of title 18."

Subsec. (b). Pub. L. 99-363, § 2(3), designated existing provisions as pars. (1) and (2), and in par. (2) substituted "the greater of 25 percent or 6 months, except that, if the maximum term of the range is 30 years or more, the maximum may be life imprisonment" for "25 per centum".

Subsec. (b)(2). Pub. L. 99–646, § 56, substituted "that, if the minimum” for “that, if the maximum".

Subsec. (h). Pub. L. 99-646, § 6(b)(1), (2), substituted "guidelines specify" for "guidelines will specify" and struck out "by section 3581(b) of title 18, United States Code," after "term authorized" in introductory text.

Subsec. (i). Pub. L. 99-646, § 6(b)(2), substituted "guidelines specify" for "guidelines will specify".

Subsecs. (n) to (t). Pub. L. 99-570, § 1008(1), (2), added subsec. (n) and redesignated former subsecs. (n) to (t) as (o) to (u), respectively.

Subsec. (u). Pub. L. 99-646, § 6(b)(3), which directed that subsec. (t) be amended by inserting "in what circumstances and" after "specify" and striking out "that are outside the applicable guideline ranges" after "terms of imprisonment”, was executed to subsec. (u) to reflect the probable intent of Congress and the intervening redesignation of subsec. (t) as (u) by Pub. L. 99-570.

Pub. L. 99-570, § 1008(2), redesignated subsec. (t) as (u).

Subsecs. (v) to (x). Pub. L. 99-570, § 1008(2), redesignated former subsecs. (u) to (w) as (v) to (x), respectively.

1985-Subsec. (q). Pub. L. 99-217 substituted "not later than one year after the initial set of sentencing guidelines promulgated under subsection (a) goes into effect" for "within three years of the date of enactment of the Sentencing Reform Act of 1983".

EFFECTIVE DATE OF 1987 AMENDMENT Amendment by Pub. L. 100-182 applicable with respect to offenses committed after Dec. 7, 1987, see section 26 of Pub. L. 100-182, set out as a note under section 3006A of Title 18, Crimes and Criminal Procedure.

EMERGENCY GUIDELINES PROMULGATION AUTHORITY Section 21 of Pub. L. 100-182 provided that: "(a) IN GENERAL.-In the case of

"(1) an invalidated sentencing guideline;

"(2) the creation of a new offense or amendment of an existing offense; or

"(3) any other reason relating to the application of a previously established sentencing guideline, and determined by the United States Sentencing Commission to be urgent and compelling;

the Commission, by affirmative vote of at least four members of the Commission, and pursuant to its rules and regulations and consistent with all pertinent provisions of title 28 and title 18, United States Code, shall promulgate and distribute to all courts of the United States and to the United States Probation System a temporary guideline or amendment to an existing guideline, to remain in effect until and during the pendency of the next report to Congress under section 994(p) of title 28, United States Code.

"(b) EXPIRATION OF AUTHORITY.-The authority of the Commission under paragraphs (1) and (2) of subsection (a) shall expire on November 1, 1989. The authority of the Commission to promulgate and distribute guidelines under paragraph (3) of subsection (a) shall expire on May 1, 1988.”

SUBMISSION Tto Congress oF INITIAL SENTENCING GUIDELINES

Provisions directing that the United States Sentencing Commission submit to Congress within 30 months of Oct. 12, 1984, the initial sentencing guidelines promulgated pursuant to subsec. (a)(1) of this section, see section 235(a)(1)(B)(i) of Pub. L. 98-473, as amended, set out as an Effective Date note under section 3551 of Title 18, Crimes and Criminal Procedure.

EFFECTIVE Date of SENTENCING GUIDELINES Sentencing guidelines promulgated pursuant to this section effective when U.S. Sentencing Commission has submitted the initial set of sentencing guidelines to Congress, the General Accounting Office has studied and reported to Congress on the guidelines, Congress has examined the guidelines, and section 212(a)(2) of Pub. L. 98-473 takes effect [Nov. 1, 1987), see section 235(a)(1)(B)(ii) of Pub. L. 98-473, as amended, set out as an Effective Date note under section 3551 of Title 18, Crimes and Criminal Procedure.

STUDIES OF IMPACT AND OPERATION OF SENTENCING GUIDELINE SYSTEM; Reporting REQUIREMENTS Section 236 of Pub. L. 98-473 provided that: "(a)(1) Four years after the sentencing guidelines promulgated pursuant to section 994(a)(1), and the provisions of sections 3581, 3583, and 3624 of title 18, United States Code, go into effect, the General Accounting Office shall undertake a study of the guidelines in order to determine their impact and compare the guidelines system with the operation of the previous sentencing and parole release system, and, within six months of the undertaking of such study, report to the Congress the results of its study.

"(2) Within one month of the start of the study required under subsection (a), the United States Sentencing Commission shall submit a report to the General Accounting Office, all appropriate courts, the Department of Justice, and the Congress detailing the operation of the sentencing guideline system and discussing any problems with the system or reforms needed. The report shall include an evaluation of the

87-705 089 Vol. 5-4 QL 3

impact of the sentencing guidelines on prosecutorial discretion, plea bargaining, disparities in sentencing, and the use of incarceration, and shall be issued by affirmative vote of a majority of the voting members of the Commission.

"(b) The Congress shall review the study submitted pursuant to subsection (a) in order to determine

"(1) whether the sentencing guideline system has been effective;

"(2) whether any changes should be made in the sentencing guideline system; and

"(3) whether the parole system should be reinstated in some form and the life of the Parole Commission extended."

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 995, 998 of this title; title 18 sections 3143, 3552, 3553, 3582, 3583, 3621, 3622, 3742, 4108, 5037; title 29 sections 504, 1111.

§ 995. Powers of the Commission

(a) The Commission, by vote of a majority of the members present and voting, shall have the power to

(1) establish general policies and promulgate such rules and regulations for the Commission as are necessary to carry out the purposes of this chapter;

(2) appoint and fix the salary and duties of the Staff Director of the Sentencing Commission, who shall serve at the discretion of the Commission and who shall be compensated at a rate not to exceed the highest rate now or hereafter prescribed for grade 18 of the General Schedule pay rates (5 U.S.C. 5332);

(3) deny, revise, or ratify any request for regular, supplemental, or deficiency appropriations prior to any submission of such request to the Office of Management and Budget by the Chairman;

(4) procure for the Commission temporary and intermittent services to the same extent as is authorized by section 3109(b) of title 5, United States Code;

(5) utilize, with their consent, the services, equipment, personnel, information, and facilities of other Federal, State, local, and private agencies and instrumentalities with or without reimbursement therefor;

(6) without regard to 31 U.S.C. 3324, enter into and perform such contracts, leases, cooperative agreements, and other transactions as may be necessary in the conduct of the functions of the Commission, with any public agency, or with any person, firm, association, corporation, educational institution, or nonprofit organization;

(7) accept and employ, in carrying out the provisions of this title, voluntary and uncompensated services, notwithstanding the provisions of 31 U.S.C. 1342, however, individuals providing such services shall not be considered Federal employees except for purposes of chapter 81 of title 5, United States Code, with respect to job-incurred disability and title 28, United States Code, with respect to tort claims;

(8) request such information, data, and reports from any Federal agency or judicial officer as the Commission may from time to time require and as may be produced consistent with other law;

(9) monitor the performance of probation officers with regard to sentencing recommen

dations, including application of the Sentencing Commission guidelines and policy statements;

(10) issue instructions to probation officers concerning the application of Commission guidelines and policy statements;

(11) arrange with the head of any other Federal agency for the performance by such agency of any function of the Commission, with or without reimbursement;

(12) establish a research and development program within the Commission for the purpose of

(A) serving as a clearinghouse and information center for the collection, preparation, and dissemination of information on Federal sentencing practices; and

(B) assisting and serving in a consulting capacity to Federal courts, departments, and agencies in the development, maintenance, and coordination of sound sentencing practices;

(13) collect systematically the data obtained from studies, research, and the empirical experience of public and private agencies concerning the sentencing process;

(14) publish data concerning the sentencing process;

(15) collect systematically and disseminate information concerning sentences actually imposed, and the relationship of such sentences to the factors set forth in section 3553(a) of title 18, United States Code;

(16) collect systematically and disseminate information regarding effectiveness of sentences imposed;

(17) devise and conduct, in various geographical locations, seminars and workshops providing continuing studies for persons engaged in the sentencing field;

(18) devise and conduct periodic training programs of instruction in sentencing techniques for judicial and probation personnel and other persons connected with the sentencing process;

(19) study the feasibility of developing guidelines for the disposition of juvenile delinquents;

(20) make recommendations to Congress concerning modification or enactment of statutes relating to sentencing, penal, and correctional matters that the Commission finds to be necessary and advisable to carry out an effective, humane and rational sentencing policy;

(21) hold hearings and call witnesses that might assist the Commission in the exercise of its powers or duties; and

(22) perform such other functions as are required to permit Federal courts to meet their responsibilities under section 3553(a) of title 18, United States Code, and to permit others involved in the Federal criminal justice system to meet their related responsibilities.

(b) The Commission shall have such other powers and duties and shall perform such other functions as may be necessary to carry out the purposes of this chapter, and may delegate to any member or designated person such powers

as may be appropriate other than the power to establish general policy statements and guidelines pursuant to section 994(a)(1) and (2), the issuance of general policies and promulgation of rules and regulations pursuant to subsection (a)(1) of this section, and the decisions as to the factors to be considered in establishment of categories of offenses and offenders pursuant to section 994(b). The Commission shall, with respect to its activities under subsections (a)(9), (a)(10), (a)(11), (a)(12), (a)(13), (a)(14), (a)(15), (a)(16), (a)(17), and (a)(18), to the extent practicable, utilize existing resources of the Administrative Office of the United States Courts and the Federal Judicial Center for the purpose of avoiding unnecessary duplication.

(c) Upon the request of the Commission, each Federal agency is authorized and directed to make its services, equipment, personnel, facilities, and information available to the greatest practicable extent to the Commission in the execution of its functions.

(d) A simple majority of the membership then serving shall constitute a quorum for the conduct of business. Other than for the promulgation of guidelines and policy statements pursuant to section 994, the Commission may exercise its powers and fulfill its duties by the vote of a simple majority of the members present.

(Added Pub. L. 98-473, title II, § 217(a), Oct. 12, 1984, 98 Stat. 2026.)

§ 997. Annual report

The Commission shall report annually to the Judicial Conference of the United States, the Congress, and the President of the United States on the activities of the Commission. (Added Pub. L. 98-473, title II, § 217(a), Oct. 12, 1984, 98 Stat. 2026.)

§ 998. Definitions

As used in this chapter

(a) "Commission" means the United States Sentencing Commission;

(b) "Commissioner" means a member of the United States Sentencing Commission;

(d) "rules and regulations" means rules and regulations promulgated by the Commission pursuant to section 995 of this title.

(Added Pub. L. 98-473, title II, § 217(a), Oct. 12, 1984, 98 Stat. 2026.)

(e) Except as otherwise provided by law, the Commission shall maintain and make available for public inspection a record of the final vote of each member on any action taken by it. (Added Pub. L. 98-473, title II, § 217(a), Oct. 12, 1984, 98 Stat. 2024.)

REFERENCES IN TEXT

The provisions of title 28, United States Code, with respect to tort claims, referred to in subsec. (a)(7), are classified generally to section 1346(b) and chapter 171 (§ 2671 et seq.) of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 998 of this title.

§ 996. Director and staff

(a) The Staff Director shall supervise the activities of persons employed by the Commission and perform other duties assigned to him by the Commission.

(b) The Staff Director shall, subject to the approval of the Commission, appoint such officers and employees as are necessary in the execution of the functions of the Commission. The officers and employees of the Commission shall be exempt from the provisions of part III of title 5, United States Code, except the following chapters: 81 (Compensation for Work Injuries), 83 (Retirement), 85 (Unemployment Compensation), 87 (Life Insurance), 89 (Health Insurance), and 91 (Conflicts of Interest).*

'So in original. There is no chapter 91 in Title 5, Government Organization and Employees.

§ 1254. Courts of appeals; certiorari; appeal; certified questions

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 2350 of this title; title 2 section 437g; title 5 section 1508, 7123; title 7 sections 136n, 194, 228b-3; title 8 section 1324b; title 12 sections 1464, 1730, 1730a, 1786, 1818, 2266; title 15 sections 21, 29, 45, 57a, 771, 78aa, 79x, 79y, 80a-42, 808-43, 80b-13, 687a, 687e, 717r, 1193, 1262, 1394, 1474, 1710, 1719, 1913, 2003, 2004, 2008, 2060, 2618, 3416; title 16 sections 791, 8251, 825p; title 20 sections 351d, 1070c-3, 1111h, 1234d, 1413, 1416, 2464, 2740, 2851, 3806, 3862, 3873; title 21 sections 346a, 348, 355, 360g, 371; title 22 section 1631e, 2740, 2851, 3086; title 23 section 131; title 26 sections 3310, 6363, 7482; title 27 section 204; title 29 sections 160, 210, 660, 667, 1578; title 30 section 816; title 33 sections 520, 988; title 38 section 784; title 40 section 333; title 42 sections 263a, 263f, 291h, 504, 1316, 1320a-7a, 2022, 26897, 3027, 3414, 3785, 5311, 5405, 6029, 6306, 6869, 8412; title 45 section 153; title 47 section 402; title 49 App. sections 45, 1486, 1674b, 1675, 2005, 2507.

§ 1259. Court of Military Appeals; certiorari

Decisions of the United States Court of Military Appeals may be reviewed by the Supreme Court by writ of certiorari in the following

cases:

(1) Cases reviewed by the Court of Military Appeals under section 867(b)(1) of title 10.

(2) Cases certified to the Court of Military Appeals by the Judge Advocate General under section 867(b)(2) of title 10.

(3) Cases in which the Court of Military Appeals granted a petition for review under section 867(b)(3) of title 10.

(4) Cases, other than those described in paragraphs (1), (2), and (3) of this subsection, in which the Court of Military Appeals granted relief.

(Added Pub. L. 98-209, § 10(a)(1), Dec. 6, 1983, 97 Stat. 1405.)

1984-Pub. L. 98-620, title IV, § 402(29)(C), Nov. 8, 1984, 98 Stat. 3359, struck out item 1296 "Precedence of cases in the United States Court of Appeals for the Federal Circuit".

1978-Pub. L. 95-598, title II, § 236(b), Nov. 6, 1978, 92 Stat. 2667, directed the addition of item 1293, "Bankruptcy appeals", which amendment did not become effective pursuant to section 402(b) of Pub. L. 95-598, as amended, set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy.

§ 1291. Final decisions of district courts

TERMINATION OF UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE CANAL ZONE

For termination of the United States District Court for the District of the Canal Zone at end of the "transition period", being the 30-month period beginning Oct. 1, 1979, and ending midnight Mar. 31, 1982, see Paragraph 5 of Article XI of the Panama Canal Treaty of 1977 and sections 3831 and 3841 to 3843 of Title 22, Foreign Relations and Intercourse.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 1295 of this title; title 15 sections 29, 57b-1, 78aa, 79y, 80a-43, 80b-14, 1314, 1719; title 16 section 825p; title 18 section 3145; title 22 section 1631e; title 31 section 3733; title 42 sections 2000e-5, 3414; title 45 section 153; title 49 App. section 45; title 50 App. section 17.

§ 1292. Interlocutory decisions

[See main edition for text of (a)]

(b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

(1) of an appeal from an interlocutory order or decree described in subsection (a) or (b) of this section in any case over which the court would have jurisdiction of an appeal under section 1295 of this title; and

[See main edition for text of (2); (d)] (As amended Nov. 8, 1984, Pub. L. 98-620, title IV, § 412, 98 Stat. 3362.)

AMENDMENTS

1984--Subsec. (b). Pub. L. 98-620, § 412(a), inserted "which would have jurisdiction of an appeal of such action" after "The Court of Appeals".

Subsec. (c)(1). Pub. L. 98-620, § 412(b), inserted "or (b)" after "(a)”.

TERMINATION OF UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE CANAL ZONE

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United States Code, Volum 5