Page:United States Statutes at Large Volume 117.djvu/687

 117 STAT. 668

28 USC 994 note.

VerDate 11-MAY-2000

13:45 Aug 26, 2004

PUBLIC LAW 108–21—APR. 30, 2003

‘‘(I) 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, taking account of any amendments to such sentencing guidelines or policy statements by Congress; ‘‘(II) has not been taken into consideration by the Sentencing Commission in formulating the guidelines; and ‘‘(III) should result in a sentence different from that described; or ‘‘(iii) the court finds, on motion of the Government, that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense and that this assistance established a mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence lower than that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission, together with any amendments thereto by act of Congress. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission, together with any amendments to such guidelines or policy statements by act of Congress.’’. (b) CONFORMING AMENDMENTS TO GUIDELINES MANUAL.—The Federal Sentencing Guidelines are amended— (1) in section 5K2.0— (A) by striking ‘‘Under’’ and inserting the following: ‘‘(a) DOWNWARD DEPARTURES IN CRIMINAL CASES OTHER THAN CHILD CRIMES AND SEXUAL OFFENSES.—Under’’; and (B) by adding at the end the following: ‘‘(b) DOWNWARD DEPARTURES IN CHILD CRIMES AND SEXUAL OFFENSES.— ‘‘Under 18 U.S.C. § 3553(b)(2), 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— ‘‘(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.

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