[Federal Register: January 14, 2004 (Volume 69, Number 9)]
[Notices]
[Page 2169-2173]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14ja04-109]
=======================================================================
-----------------------------------------------------------------------
UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice of proposed amendments to sentencing guidelines, policy
statements, and commentary. Request for public comment, including
public comment regarding retroactive application of any of the proposed
amendments. Notice of public hearing.
-----------------------------------------------------------------------
SUMMARY: Pursuant to section 994(a), (o), and (p) of title 28, United
States Code, and section 4(b) of the Controlling the Assault of Non-
Solicited Pornography and Marketing Act of 2003 (the ``CAN-SPAM Act of
2003''), Public Law 108-187, the United States Sentencing Commission is
considering promulgating certain amendments to the sentencing
guidelines, policy statements, and commentary. This notice sets forth
the proposed amendments and, for each proposed amendment, a synopsis of
the issues addressed by that amendment. This notice also provides
multiple issues for comment, some of which are contained within
proposed amendments.
The specific proposed amendments and issues for comment in this
notice
[[Page 2170]]
are as follows: (1) Proposed amendment to Sec. Sec. 2L1.1 (Smuggling,
Transporting, or Harboring an Unlawful Alien) and 2L2.2 (Fraudulently
Acquiring Documents Relating to Naturalization, Citizenship, or Legal
Resident Status for Own Use; False Personation or Fraudulent Marriage
by Alien to Evade Immigration Law; Fraudulently Acquiring or Improperly
Using a United States Passport) pertaining to certain immigration
offense conduct, and related issues for comment; (2) proposed amendment
to Sec. 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or
Trafficking (Including Possession with Intent to Commit These
Offenses); Attempt or Conspiracy) that modifies the proposed amendment
pertaining to controlled substance analogues published in the Federal
Register on December 30, 2003 (see 68 FR 75339), by including a rule
for calculating the base offense level in cases in which a controlled
substance is not referenced in Sec. 2D1.1; and (3) an issue for
comment regarding the implementation of the Controlling the Assault of
Non-Solicited Pornography and Marketing Act of 2003 (``CAN-SPAM Act of
2003''), Public Law 108-187.
DATES: (1) Proposed Amendments and Issues for Comment.--Written public
comment regarding the proposed amendment on controlled substance
analogues should be received by the Commission not later than March 1,
2004. Written public comment regarding (A) the proposed amendment on
immigration offenses, and related issues for comment; and (B) the
issues for comment regarding the implementation of the CAN-SPAM Act of
2003, should be received by the Commission not later than March 15,
2004.
(2) Public Hearing.--The Commission has scheduled a public hearing
on its proposed amendments for March 17, 2004, at the Thurgood Marshall
Federal Judiciary Building, One Columbus Circle, NE., Washington, DC
20002-8002. A person who desires to testify at the public hearing
should notify Michael Courlander, Public Affairs Officer, at (202) 502-
4590, not later than March 1, 2004. Written testimony for the public
hearing must be received by the Commission not later than March 1,
2004. Timely submission of written testimony is a requirement for
testifying at the public hearing. The Commission requests that, to the
extent practicable, commentators submit an electronic version of the
comment and of the testimony for the public hearing. The Commission
also reserves the right to select persons to testify at any of the
hearings and to structure the hearings as the Commission considers
appropriate and the schedule permits. Further information regarding the
public hearing, including the time of the hearing, will be provided by
the Commission on its Web site at http://www.ussc.gov.
ADDRESS: Public comment should be sent to: United States Sentencing
Commission, One Columbus Circle, NE., Suite 2-500, Washington, DC
20002-8002, Attention: Public Affairs.
FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs
Officer, Telephone: (202) 502-4590.
SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is
an independent agency in the judicial branch of the United States
Government. The Commission promulgates sentencing guidelines and policy
statements for federal courts pursuant to 28 U.S.C. 994(a). The
Commission also periodically reviews and revises previously promulgated
guidelines pursuant to 28 U.S.C. 994(o) and submits guideline
amendments to the Congress not later than the first day of May of each
year pursuant to 28 U.S.C. 994(p).
The Commission seeks comment on the proposed amendments, issues for
comment, and any other aspect of the sentencing guidelines, policy
statements, and commentary.
The proposed amendments in this notice are presented in one of two
formats. First, some of the amendments are proposed as specific
revisions to a guideline or commentary. Bracketed text within a
proposed amendment indicates a heightened interest on the Commission's
part on comment and suggestions regarding alternative policy choices;
for example, a proposed enhancement of [2] levels indicates that the
Commission is considering, and invites comment on, alternative policy
choices regarding the appropriate level of enhancement. Similarly,
bracketed text within a specific offense characteristic or application
note means that the Commission specifically invites comment on whether
the proposed provision is appropriate. Second, the Commission has
highlighted certain issues for comment and invites suggestions on how
the Commission should respond to those issues.
The Commission also requests public comment regarding whether the
Commission should specify for retroactive application to previously
sentenced defendants any of the proposed amendments published in this
notice. The Commission requests comment regarding which, if any, of the
proposed amendments that may result in a lower guideline range should
be made retroactive to previously sentenced defendants pursuant to
Sec. 1B1.10 (Reduction in Term of Imprisonment as a Result of Amended
Guideline Range).
Additional information pertaining to the proposed amendments
described in this notice may be accessed through the Commission's Web
site at http://www.ussc.gov.
Authority: 28 U.S.C. 994(a), (o), (p), (x); section 4(b) of the
CAN-SPAM Act of 2003, Pub. L. 108-187; USSC Rules of Practice and
Procedure, Rule 4.4.
Diana E. Murphy,
Chair.
1. Proposed Amendment: Immigration Offenses
Synopsis of Proposed Amendment: This proposed amendment addresses
issues involving immigration offenses. Specifically, the proposed
amendment makes changes to Sec. Sec. 2L1.1 (Smuggling, Transporting,
or Harboring an Unlawful Alien) and 2L2.2 (Fraudulently Acquiring
Documents Relating to Naturalization, Citizenship, or Legal Resident
Status for Own Use; False Personation or Fraudulent Marriage by Alien
to Evade Immigration Law; Fraudulently Acquiring or Improperly Using a
United States Passport). Two issues for comment also are contained in
this proposed amendment.
(1) Sec. 2L1.1 (Smuggling, Transporting, or Harboring an Unlawful
Alien)
(A) Entering the United States To Engage in Subversive Activity
The proposed amendment provides alternative enhancements at Sec.
2L1.2(b)(4)(A) and (B) if the defendant smuggled, harbored or
transported an alien knowing that the alien intended to enter the
United States to engage in (1) a crime of violence or a controlled
substance offense [; or (2) terrorist activity]. The proposal provides
a [2-] [4-][6-] level enhancement if the alien intended to commit a
crime of violence or a controlled substance offense[, and a [12-] level
enhancement, and a minimum offense level of [32], if the alien intended
to engage in ``terrorist activity'' as defined in 8 U.S.C. 1182]. An
increase equivalent to the terrorism adjustment at Sec. 3A1.4
(Terrorism) was chosen to reflect the seriousness of aiding the
importation of terrorists. An issue for comment follows regarding the
appropriate interaction between the proposed terrorism enhancement and
the terrorism adjustment at Sec. 3A1.4.
[[Page 2171]]
(B) Offenses Involving Death
The amendment proposes three significant changes to the guideline
in cases in which death occurred. First, the proposed amendment removes
the increase of eight levels ``if death resulted'' from the current
specific offense characteristic in Sec. 2L1.1(b)(6) addressing bodily
injury and places this increase in a stand alone specific offense
characteristic in Sec. 2L1.1(b)(8). This new specific offense
characteristic provides an increase of [8], [10], or [12] levels and a
minimum offense level of level [25-30].
Second, the cross reference at Sec. 2L1.1(c) is expanded to cover
deaths other than murder, if the resulting offense level is greater
than the offense level determined under Sec. 2L1.1. Third, the
proposed amendment provides a new special instruction at Sec. 2L1.1(d)
to address cases involving multiple deaths. If applicable, the
guideline will be applied as if the case involved a separate count of
conviction for each death.
(C) Number of Illegal Aliens
The proposed amendment provides additional offense level increases
to the table in Sec. 2L1.1(b)(2) relating to the number of aliens
involved in the offense. An increase of [11][12] levels would be
applicable under the proposal if the offense involved 200 to 299
aliens, and an increase of [13-18] levels would be applicable if the
offense involved 300 or more aliens. The current upward departure
provision in Application Note 4 has been modified to reflect this
proposed change.
(2) Immigration Documentation Fraud
The proposed amendment makes several changes to Sec. 2L2.2
(Fraudulently Acquiring Documents Relating to Naturalization,
Citizenship, or Legal Resident Status for Own Use; False Personation or
Fraudulent Marriage by Alien to Evade Immigration Law; Fraudulently
Acquiring or Improperly Using a United States Passport). First, the
proposed amendment increases the base offense level in Sec. 2L2.2(a)
from level 8 to level [8-12]. Second, the proposed amendment increases
by two levels the current enhancements in Sec. Sec. 2L2.2(b)(1)
(regarding unlawful aliens who have been deported on one or more
occasions) and 2L2.2(b)(2) (regarding defendants who commit the instant
offense after sustaining a felony conviction for an immigration and
naturalization offense). Third, the proposed amendment provides an [4-
10]-level enhancement in Sec. 2L2.2(b)(3) if the defendant was a
fugitive wanted for a felony offense in the United States [or any other
country]. An issue for comment follows the proposed amendment regarding
whether that enhancement should include fugitive status from a country
other than the United States. [Finally, the proposed amendment provides
an [2-8]-level enhancement at Sec. 2L2.2(b)(4) if the defendant
fraudulently obtained or used a United States passport.]
Proposed Amendment
Section 2L1.1(b)(2) is amended by striking the following:
``(C) 100 or more and 9.'',
and inserting the following:
``(C) 100-199 add 9
[(D) 200-299 add [11][12]
(E) 300 or more add [13][15][18].]''.
Section 2L1.1(b) is amended by redesignating subdivisions (4), (5)
and (6) as subdivisions (5), (6), and (7), respectively; and by
inserting after subdivision (3) the following:
``[(4) If the defendant smuggled, transported, or harbored an alien
knowing that the alien intended to enter the United States--
(A) to engage in a crime of violence or controlled substance
offense, increase by [2-6] levels; or
(B) to engage in terrorist activity, increase by [12] levels, but
if the resulting offense level is less than level [32], increase to
level [32].]''.
Section 2L1.1(b)(7), as redesignated by this amendment, is amended
by striking ``died or''; by striking ``Death or''; by redesignating
subdivisions (1), (2), and (3) as subdivisions (A), (B) and (C),
respectively; by inserting a period after ``add 6 levels''; and by
striking subdivision (4).
Section 2L1.1(b) is amended by adding at the end the following:
``(8) If the offense resulted in the death of any person, increase
by [8-12] levels, but if the resulting offense level is less than level
[25-30], increase to level [25-30].
Section 2L1.1(c) is amended by striking ``If any person'' and all
that follows through ``Subpart 1.'' and inserting the following:
``(1) If death resulted, apply the appropriate homicide guideline
from Chapter Two, Part A, Subpart 1, if the resulting offense level is
greater than that determined above.''.
Section 2L1.1 is amended by adding at the end the following:
``(d) Special Instruction
(1) If the offense involved the death of more than one alien,
Chapter Three, Part D (Multiple Counts) shall be applied as if the
death of each alien had been contained in a separate count of
conviction.''.
The Commentary to Sec. 2L1.1 captioned ``Application Notes'' is
amended in Note 1 by striking ``For purposes of this guideline--'' and
inserting ``Definitions.--For purposes of this guideline:''; and by
striking `` `Number of unlawful aliens'' and all that follows through
``include the defendant.''.
The Commentary to Sec. 2L1.1 captioned ``Application Notes'' is
amended in Note 2 by inserting ``Application of Aggravating Role
Adjustment.--'' before ``For purposes of''; and by striking Note 3 and
inserting the following:
``3. Application of Subsection (b)(2).--For purposes of subsection
(b)(2), the number of unlawful aliens smuggled, transported, or
harbored does not include the defendant.''.
The Commentary to Sec. 2L1.1 captioned ``Application Notes'' is
amended in Note 4 by inserting ``Upward Departure Provision.--'' before
``If''; and by striking ``100'' and inserting ``300''.
The Commentary to Sec. 2L1.1 captioned ``Application Notes'' is
amended in Note 5 by inserting ``Prior Convictions Under Subsection
(b)(3).--'' before ``Prior''.
The Commentary to Sec. 2L1.1 captioned ``Application Notes'' is
amended by redesignating Note 6 as Note 7; and by inserting after Note
5 the following:
``[6. Application of Subsection (b)(4).--
(A) Definitions of Terms Used in Subdivision (b)(4)(A).--For
purposes of subdivision (b)(4)(A):
`Controlled substance offense' has the meaning given that term in
Sec. 4B1.2 (Definitions of Terms Used in Section 4B1.1).
`Crime of violence' has the meaning given that term in Sec. 4B1.2.
(B) Definitions of Terms Used in Subdivision (b)(4)(B).--For
purposes of subdivision (b)(4)(B):
`Engage in terrorist activity' has the meaning given that term in 8
U.S.C. Sec. 1182(a)(3)(B)(iv).
`Terrorist activity' has the meaning given that term in 8 U.S.C.
Sec. 1182(a)(3)(B)(iii).
(C) Inapplicability of Chapter Three Adjustment.--If subdivision
(b)(4)(B) applies, do not apply the adjustment from Sec. 3A1.4
(Terrorism).]''.
The Commentary to Sec. 2L1.1 captioned ``Application Notes'' is
amended in Note 7, as redesignated by this amendment, by inserting
``Application of Subsection (b)(6).--before ``Reckless''; by striking
``(b)(5)'' each place it appears, and inserting ``(b)(6)''; and by
striking ``(b)(4)'' and inserting ``(b)(5)''.
The Commentary to Sec. 2L1.1 captioned ``Application Notes'' is
amended by adding at the end the following:
``8. Special Instruction at Subsection (d)(1).--Subsection (d)(1)
directs that if
[[Page 2172]]
the relevant conduct of an offense of conviction includes the death of
more than one alien, whether specifically cited in the count of
conviction or not, each such death shall be treated as if contained in
a separate count of conviction. For the purposes of Chapter Three, Part
D (Multiple Counts), multiple counts involving the death of more than
one alien are not to be grouped together under Sec. 3D1.2 (Groups of
Closely Related Counts).''.
Section 2L2.2(a) is amended by striking ``8'' and inserting ``[8-
12]''.
Section 2L2.2(b) is amended in subdivision (1) by striking ``2
levels'' and inserting ``[4 levels]''; and in subdivision (2) by
striking ``offense, increase by 2 levels'' and inserting ``offense,
increase by [4 levels]'', and by striking ``prosecution, increase by 4
levels'' and inserting ``prosecution, increase by [6 levels]''.
Section 2L2.2(b) is amended by adding at the end the following:
``(3) If the defendant was a fugitive wanted for a felony offense
in the United States, [or any other country,] increase by [4-10]
levels.
[(4) If the defendant fraudulently obtained or used a United States
passport, increase by [2-8] levels.]''.
Issues for Comment
(1) The Commission requests comment on the proposed enhancement in
Sec. 2L1.1(b)(4)(B), which provides a significant increase and minimum
offense level if the defendant smuggled, transported, or harbored an
alien knowing that the alien intended to enter the United States to
engage in terrorist activity. Specifically, how should this enhancement
interact with the terrorism adjustment at Sec. 3A1.4 (Terrorism), as
promulgated in response to section 730 of the Antiterrorism and
Effective Death Penalty Act of 1996, Public Law 104-132, and amended in
response to the PATRIOT Act, Public Law 107-56? Should the proposed
enhancement instead more closely track the provisions of 8 U.S.C. 1327,
which prohibit, among other things, the smuggling, transporting, or
harboring of an alien who is inadmissible under 8 U.S.C. 1182(a)(3)(B)
(because that alien has engaged in terrorist activity, as defined in
such provision)? Alternatively, should commentary be added inviting use
of the upward departure provision in Application Note 4 of Sec. 3A1.4
if the defendant smuggled, transported, or harbored an alien knowing
the alien intended or was likely to engage in terrorist activity?
(2) The Commission specifically requests comment regarding whether
the proposed enhancement in subsection Sec. 2L2.2(b)(3) should include
fugitive status in a country other than the United States. Are there
application problems that may arise as a result of such inclusion?
2. Proposed Amendment: Analogues and Drugs Not Listed in Sec. 2D1.1
Synopsis of Proposed Amendment: This proposed amendment revises a
proposed amendment published in the Federal Register on December 30,
2003 (see 68 F.R. 75339), pertaining to controlled substance analogues.
In addition to the proposed rule regarding analogues, the proposed
amendment provides an application note regarding controlled substances
not currently referenced in Sec. 2D1.1 (Unlawful Manufacturing,
Importing, Exporting, or Trafficking (Including Possession with Intent
to Commit These Offenses); Attempt or Conspiracy). The note directs the
court to use the marihuana equivalency of the closest analogue of the
controlled substance in order to determine the base offense level.
Proposed Amendment
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 5 by inserting ``Analogues and Controlled Substances
Not Referenced in this Guideline.--'' before ``Any reference''; by
striking ``and'' after ``includes all salts, isomers,''; by inserting
``and, except as otherwise provided, any analogue of that controlled
substance'' after ``all salts of isomers''; and by adding at the end
the following:
``In the case of a controlled substance that is not referenced in
either the Drug Quantity Table or the Drug Equivalency Tables of
Application Note 10, determine the base offense level using the
marihuana equivalency of the closest analogue of that controlled
substance.
For purposes of this guideline ``analogue'' has the meaning given
``controlled substance analogue'' in 21 U.S.C. 802(32).''.
3. Issues for Comment: Implementation of the CAN-SPAM Act of 2003
Section 4(b)(1) of the Controlling the Assault of Non-Solicited
Pornography and Marketing Act of 2003 (the ``CAN-SPAM Act of 2003''),
Public Law 108-187, directs the Commission to review and as appropriate
amend the sentencing guidelines and policy statements to establish
appropriate penalties for violations of 18 U.S.C. 1037 and other
offenses that may be facilitated by the sending of a large volume of
unsolicited e-mail.
Section 4(b)(2) of the CAN-SPAM Act of 2003 further directs the
Commission to consider providing sentencing enhancements for--
(A) Defendants convicted under 18 U.S.C. 1037 who--
(I) Obtained e-mail addresses through improper means, including the
harvesting of e-mail addresses from the users of a Web site,
proprietary service, or other online public forum without authorization
and the random generating of e-mail addresses by computer; or
(ii) knew that the commercial e-mail messages involved in the
offense contained or advertised an internet domain for which the
registrant of the domain had provided false registration information;
and
(B) Defendants convicted of other offenses, including fraud,
identity theft, obscenity, child pornography, and the sexual
exploitation of children, if such offenses involved the sending of
large quantities of e-mail.
The Commission requests comment regarding the most appropriate
amendments that might be made to the guidelines to implement the
directives in section 4(b) of the CAN-SPAM Act of 2003. Specifically,
the Commission requests comment on the following:
(1) What are the appropriate guideline penalties for a defendant
convicted under 18 U.S.C. 1037? Section 4(a) of the CAN-SPAM Act of
2003 created the new offense at 18 U.S.C. 1037, which makes it unlawful
for any person, in or affecting interstate or foreign commerce, to
knowingly:
(a)(1) access a protected computer without authorization, and
intentionally initiate the transmission of multiple commercial
electronic mail messages from or through such computer;
(a)(2) Use a protected computer to relay or retransmit multiple
commercial electronic mail messages, with the intent to deceive or
mislead recipients, or any Internet access service, as to the origin of
such messages;
(a)(3) materially falsify header information in multiple commercial
electronic messages and intentionally initiate the transmission of such
messages;
(a)(4) register, using information that materially falsifies the
identity of the actual registrant, for five or more electronic mail
accounts or online user accounts or two or more domain names, and
intentionally initiate the transmission of multiple commercial
electronic mail messages from any combination of such accounts or
domain names; or
(a)(5) falsely represent oneself to be the registrant or the
legitimate successor
[[Page 2173]]
in interest to the registrant of five or more Internet Protocol
addresses, and intentionally initiate the transmission of multiple
commercial electronic mail messages from such addresses.
The criminal penalties for a violation of 18 U.S.C. 1037 are as
follows:
(b)(1) Imprisonment up to five years and/or a fine if--
(A) the offense is committed in furtherance of any other federal or
State felony; or
(B) the defendant has previously been convicted under this section
[18 U.S.C. 1037], under 18 U.S.C. 1030, or under any State law for
sending multiple commercial e-mail messages or unauthorized access to a
computer system.
(b)(2) Imprisonment up to three years and/or a fine if--
(A) the offense is under subsection (a)(1) (i.e., using without
authorization a protected computer to send multiple commercial e-mail
messages);
(B) the offense is under subsection (a)(4) (i.e., registering by
false identification to e-mail accounts, online user accounts, or
domain names) if the offense involved 20 or more falsified e-mail or
online user account registrations or 10 or more falsified domain name
registrations;
(C) the volume of e-mail messages transmitted in furtherance of the
offense exceeded 2,500 during any 24-hour period, 25,000 during any 30-
day period, or 250,000 during any 1-year period;
(D) the offense caused a loss to one or more persons of $5,000 or
more during any one-year period;
(E) the defendant obtained as a result of the offense conduct
anything of value of $5,000 or more during any one-year period; or
(F) the defendant acted in concert with three or more other persons
and was an organizer or leader with respect to the others.
(b)(3) Imprisonment up to one year and/or a fine for any other
violation of the statute.
Should the new offense(s) be referenced in Appendix A (Statutory
Index) to Sec. Sec. 2B1.1 (Fraud, Theft, and Property Destruction),
and 2B2.3 (Trespass), and/or to some other guideline(s)? What is the
appropriate base offense level for the new offense(s)? Should the base
offense level vary depending on the seriousness of the offense (for
example, should the base offense level for a regulatory violation under
18 U.S.C. 1037 be the same as the base offense level for a more serious
violation under that statute)?
If 18 U.S.C. 1037 is referenced to Sec. 2B1.1, should commentary
be added to that guideline that ensures application of the multiple
victim enhancement at Sec. 2B1.1(b)(2)(A)(I) or the mass marketing
enhancement at Sec. 2B1.1(b)(2)(A)(ii) to a defendant convicted of 18
U.S.C. Sec. 1037? Should a defendant convicted under 18 U.S.C. 1037
receive an enhancement under Sec. 2B1.1(b)(2)(A)(I) or (ii) based on a
threshold quantity of email messages involved in the offense, and if
so, what is that threshold quantity?
Are there circumstances under which an offense under 18 U.S.C. 1037
could be considered to involve sophisticated means, and if so, would it
be appropriate to add commentary to Sec. 2B1.1 to invite application
of the enhancement for sophisticated means at Sec. 2B1.1(b)(8) under
such circumstances? Alternatively, would it be appropriate to add
commentary discouraging application of the enhancement for
sophisticated means in certain circumstances and, if so, what would
those circumstances be?
Consistent with the directive in section 4(b)(2) of the CAN-SPAM
Act of 2003, should Sec. 2B1.1 contain an enhancement for defendants
convicted under 18 U.S.C. 1037 who (I) obtain e-mail addresses through
improper means, including the harvesting of e-mail addresses from the
users of a Web site, proprietary service, or other online public forum
without authorization and the random generating of e-mail addresses by
computer; or (ii) knew that the commercial e-mail messages involved in
the offense contained or advertised an internet domain for which the
registrant of the domain had provided false registration information?
(2) What are the appropriate guideline penalties for offenses other
than 18 U.S.C. 1037 (such as those specified by section 4(b)(2) of the
CAN-SPAM Act of 2003, i.e., offenses involving fraud, identity theft,
obscenity, child pornography, and the sexual exploitation of children)
that may be facilitated by the sending of a large volume of unsolicited
e-mail?
Specifically, should the Commission consider providing an
additional enhancement for the sending of a large volume of unsolicited
email in any of the following: Sec. 2B1.1 (covering fraud generally
and identity theft), the guidelines in Chapter Two, Part G, Subpart 2,
covering child pornography and the sexual exploitation of children, and
the guidelines in Chapter Two, Part G, Subpart 3, covering obscenity?
Alternatively, should the Commission amend existing enhancements, or
the commentary pertaining thereto, in any of these guidelines to ensure
application of those enhancements for the sending of a large volume of
unsolicited email? For example, should the Commission amend the
enhancements, or the commentary pertaining to the enhancements, for the
use of a computer in the child pornography guidelines, Sec. Sec.
2G2.1, 2G2.2, and 2G2.4, to ensure that those enhancements apply to the
sending of a large volume of unsolicited email?
What constitutes a ``large volume of unsolicited email''?
(3) Section 5(d)(1) of the CAN-SPAM Act of 2003 makes it unlawful
for a person to initiate in or affect interstate commerce by
transmitting, to a protected computer, any commercial electronic email
message that includes sexually oriented material and--
(A) fail to include in the subject heading for the electronic mail
message the marks or notices prescribed by the [Federal Trade
Commission] under this subsection; or
(B) fail to provide that the matter in the message that is
initially viewable to the recipient, when the message is opened by any
recipient and absent any further actions by the recipient, includes
only--
(I) to the extent required or authorized pursuant to paragraph (2)
[i.e., the recipient has given prior affirmative assent to receipt of
the message], any such marks or notices;
(ii) the information required to be included in the message
pursuant to section 5(a) of the CAN-SPAM Act of 2003; and
(iii) instructions on how to access, or a mechanism to access, the
sexually oriented material.
The criminal penalty for a violation of section 5(d)(1) of the CAN-
SPAM Act of 2003 is a fine or imprisonment for not more than five
years, or both.
The Commission requests comment on how it should incorporate this
new offense into the guidelines. Should the Commission reference this
offense in Appendix A to Sec. 2G2.2, the guideline covering the
transmission of child pornography, and/or Sec. 2G3.1, the guideline
covering the transmission of obscene matter? Are there enhancements
that should be added to either of these guidelines to cover such
conduct adequately?
[FR Doc. 04-806 Filed 1-13-04; 8:45 am]
BILLING CODE 2210-40-P