[Federal Register: January 27, 2009 (Volume 74, Number 16)]
[Notices]
[Page 4802-4823]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27ja09-77]
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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.
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SUMMARY: Pursuant to section 994(a), (o), and (p) of title 28, United
States Code, 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 sets forth a number of
issues for comment, some of which are set forth together with the
proposed amendments; some of which are set forth independent of any
proposed amendment; and one of which (regarding retroactive application
of proposed amendments) is set forth in the SUPPLEMENTARY INFORMATION
portion of this notice.
The proposed amendments and issues for comment in this notice are
as follows: (1) A proposed amendment in response to the Identity Theft
Restitution and Enforcement Act of 2008, title II of Public Law 110-
326, including proposed changes to Sec. 2B1.1 (Larceny, Embezzlement,
and Other Forms of Theft; Offenses Involving Stolen Property; Property
Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving
Altered or Counterfeit Instruments Other than Counterfeit Bearer
Obligations of the United States), Sec. 2H3.1 (Interception of
Communications; Eavesdropping; Disclosure of Certain Private or
Protected Information), and Sec. 3B1.3 (Abuse of Position of Trust or
Use of Special Skill), and issues for comment regarding the guidelines'
treatment of offenses involving fraud, identity theft, computers, and
communications; (2) a proposed amendment in response to the Ryan Haight
Online Pharmacy Consumer Protection Act of 2008, Public Law 110-465,
including proposed changes to Sec. 2D1.1 (Unlawful Manufacturing,
Importing, Exporting, or Trafficking (Including Possession with Intent
to Commit These Offenses); Attempt or Conspiracy) and Sec. 2D3.1
[[Page 4803]]
(Regulatory Offenses Involving Registration Numbers; Unlawful
Advertising Relating to Schedule I Substances; Attempt or Conspiracy),
and issues for comment regarding the guidelines' treatment of Schedule
III, IV, and V controlled substance offenses; (3) a proposed amendment
in response to the Drug Trafficking Vessel Interdiction Act of 2008,
Public Law 110-407, including a proposed change to Sec. 2D1.1
(Unlawful Manufacturing, Importing, Exporting, or Trafficking
(Including Possession with Intent to Commit These Offenses); Attempt or
Conspiracy) and a proposed new guideline for offenses involving
operating a submersible vessel or semi-submersible vessel without
nationality, and issues for comment regarding the guidelines' treatment
of such offenses; (4) an issue for comment in response to the Court
Security Improvement Act of 2007, Public Law 110-177, regarding the
guidelines' treatment of homicide, assault, and threat offenses; (5) an
issue for comment in response to the William Wilberforce Trafficking
Victims Protection Reauthorization Act of 2008, Public Law 110-457,
regarding the guidelines' treatment of alien harboring and human
trafficking offenses; (6) a proposed amendment in response to
miscellaneous issues arising from legislation recently enacted and
other miscellaneous guideline application issues, including proposed
changes to the guidelines' treatment of offenses involving contempt,
consumer product safety, interest rate limitations, domestic violence,
child soldiers, veterans' grave markers, child pornography, firearms,
threats, and copyright infringement and the guidelines' treatment of
probation and supervised release, and related issues for comment; (7) a
proposed amendment to Sec. 2A3.2 (Criminal Sexual Abuse of a Minor
Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit
Such Acts) and Sec. 2G1.3 (Promoting a Commercial Sex Act or
Prohibited Sexual Conduct with a Minor; Transportation of Minors to
Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to
Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor;
Sex Trafficking of Children; Use of Interstate Facilities to Transport
Information about a Minor) in response to a circuit conflict regarding
application of the undue influence enhancement in those guidelines, and
a related issue for comment; (8) a proposed amendment to Sec. 3C1.3
(Commission of Offense While on Release) in response to an application
issue regarding that guideline; (9) a proposed amendment in response to
a circuit conflict regarding the guidelines' treatment of
counterfeiting offenses involving ``bleached notes'', including a
proposed change to Sec. 2B5.1 (Offenses Involving Counterfeit Bearer
Obligations of the United States); and (10) a proposed amendment in
response to certain technical issues that have arisen in the
guidelines.
DATES: (1) Written Public Comment.--Written public comment regarding
the proposed amendments and issues for comment set forth in this
notice, including public comment regarding retroactive application of
any of the proposed amendments, should be received by the Commission
not later than March 30, 2009.
(2) Public Hearing.--The Commission plans to hold a public hearing
regarding the proposed amendments and issues for comment set forth in
this notice. Further information regarding the public hearing,
including requirements for testifying and providing written testimony,
as well as the location, time, and scope of the hearing, will be
provided by the Commission on its Web site at http://www.ussc.gov.
ADDRESSES: 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 each
year pursuant to 28 U.S.C. 994(p).
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 in comment and suggestions regarding alternative policy choices;
for example, a proposed enhancement of [2][4][6] 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); USSC Rules of
Practice and Procedure, Rule 4.4.
Ricardo H. Hinojosa,
Acting Chair.
1. Identity Theft
Synopsis of Proposed Amendment: This proposed amendment addresses
the Identity Theft Restitution and Enforcement Act of 2008 (the
``Act''), Title II of Public Law 110-326, and other related issues
arising from case law. The Act contains a directive to the Commission
at section 209. Section 209(a) of the Act directs the Commission to--
review its guidelines and policy statements applicable to persons
convicted of offenses under sections 1028, 1028A, 1030, 2511, and 2701
of title 18, United States Code, and any other relevant provisions of
law, in order to reflect the intent of Congress that such penalties be
increased in comparison to those currently provided by such guidelines
and policy statements.
The offenses that are the subject of the directive in section 209
of the Act, and the guidelines to which they are referenced, are as
follows:
(1) 18 U.S.C. 1028 (fraud and related activity in connection with
identification documents, authentication features, and information)
makes it unlawful to engage in fraud and related activity in connection
with ``identification documents'' (e.g., government-issued
[[Page 4804]]
documents such as drivers' licenses) or ``authentication features''
(i.e., features used on such documents to determine whether such
documents are authentic, such as watermarks or holograms). A violator
is subject to a fine under title 18, United States Code, and
imprisonment. The statutory maximum term of imprisonment varies from 1
year to 30 years, depending on the circumstances of the offense. For
example, the statute provides imprisonment up to 30 years (if terrorism
is involved); 20 years (if a drug trafficking crime or a crime of
violence is involved, or if the violator is a repeat offender); and 15
years, 5 years, and 1 year, in other specified circumstances.
Offenses under 18 U.S.C. 1028 are referenced in Appendix A of the
Guidelines Manual (Statutory Index) to Sec. Sec. 2B1.1 (Theft,
Property Destruction, and Fraud), 2L2.1 (Trafficking in a Document
Relating to Naturalization), and 2L2.2 (Fraudulently Acquiring
Documents Relating to Naturalization).
(2) 18 U.S.C. 1028A (aggravated identity theft) makes it unlawful
to transfer, possess, or use a ``means of identification'' (i.e., a
name or number used to identify a specific individual, such as a social
security number) of another person during and in relation to another
felony (such as a fraud or an immigration violation). A violator is
subject to a mandatory consecutive term of imprisonment of 2 years or,
if the other felony was a terrorism offense, 5 years.
Offenses under 18 U.S.C. 1028A are referenced in Appendix A
(Statutory Index) to Sec. 2B1.6 (Aggravated Identity Theft).
(3) 18 U.S.C. 1030 (fraud and related activity in connection with
computers) provides for several offenses as follows:
(A) 18 U.S.C. 1030(a)(1) makes it unlawful to retain national
security information after having obtained it by computer without
authority, or to disclose such information to a person not entitled to
receive it. A violator is subject to a fine under title 18, United
States Code, and imprisonment up to 10 years (for a first offense) or
20 years (for a repeat offender).
Offenses under 18 U.S.C. 1030(a)(1) are referenced in the Statutory
Index to Sec. 2M3.2 (Gathering National Defense Information).
(B) 18 U.S.C. 1030(a)(2) makes it unlawful to obtain by computer,
without authority, information of a financial institution or of a
federal agency. A violator is subject to a fine under title 18, United
States Code, and imprisonment of up to 1 year (for a first offense), 5
years (for an offense involving valuable information, an offense for
purposes of commercial advantage or financial gain, or an offense in
furtherance of another crime or tort), or 10 years (for a repeat
offender).
Offenses under 18 U.S.C. 1030(a)(2) are referenced in the Statutory
Index to Sec. 2B1.1 (Theft, Property Destruction, and Fraud).
(C) 18 U.S.C. 1030(a)(3) makes it unlawful to access, without
authority, a nonpublic computer of a federal agency. A violator is
subject to a fine under title 18, United States Code, and imprisonment
of up to 1 year (for a first offense) or 10 years (for a repeat
offender).
Offenses under 18 U.S.C. 1030(a)(3) are referenced in the Statutory
Index to Sec. 2B2.3 (Trespass).
(D) 18 U.S.C. 1030(a)(4) makes it unlawful to access a ``protected
computer'' (i.e., a computer of a financial institution or a federal
agency) without authority and, by means of doing so, further an
intended fraud and obtain a thing of value. A violator is subject to a
fine under title 18, United States Code, and imprisonment of up to 5
years (for a first offense) or 10 years (for a repeat offender).
Offenses under 18 U.S.C. 1030(a)(4) are referenced in the Statutory
Index to Sec. 2B1.1 (Theft, Property Destruction, and Fraud).
(E) 18 U.S.C. 1030(a)(5) makes it unlawful to use a computer to
cause damage to a ``protected computer'' (i.e., a computer of a
financial institution or a federal agency). A violator is subject to a
fine under title 18, United States Code, and imprisonment of up to 1
year, 5 years, 10 years, 20 years, or life, depending on the
circumstances.
Offenses under 18 U.S.C. 1030(a)(5) are referenced in the Statutory
Index to Sec. 2B1.1 (Theft, Property Destruction, and Fraud).
(F) 18 U.S.C. 1030(a)(6) makes it unlawful to traffic in any
password or similar information through which a computer may be
accessed without authorization, if the trafficking affects interstate
or foreign commerce or if the computer is used by or for a federal
agency. A violator is subject to a fine under title 18, United States
Code, and imprisonment of up to 1 year (for a first offense) or 10
years (for a repeat offender).
Offenses under 18 U.S.C. 1030(a)(6) are referenced in the Statutory
Index to Sec. 2B1.1 (Theft, Property Destruction, and Fraud).
(G) 18 U.S.C. 1030(a)(7) makes it unlawful to threaten to cause
damage to, or obtain information from, a ``protected computer'' (i.e.,
a computer of a financial institution or a federal agency), without
authority and with intent to extort. A violator is subject to a fine
under title 18, United States Code, and imprisonment of up to 5 years
(for a first offense) or 10 years (for a repeat offender).
Offenses under 18 U.S.C. 1030(a)(7) are referenced in the Statutory
Index to Sec. 2B3.2 (Extortion by Force or Threat of Injury or Serious
Damage).
(H) 18 U.S.C. 1030(b) makes it unlawful to conspire to commit, or
attempt to commit, a section 1030(a) offense. A violator is subject to
the same penalty as for the section 1030(a) offense.
Offenses under 18 U.S.C. 1030(b) are referenced in the Statutory
Index to Sec. 2X1.1 (Attempt, Solicitation, or Conspiracy).
(4) 18 U.S.C. 2511 (interception and disclosure of wire, oral, or
electronic communications prohibited) makes it unlawful to intercept or
disclose any wire, oral, or electronic communication. A violator is
subject to a fine under title 18, United States Code, and imprisonment
of up to 5 years.
Offenses under 18 U.S.C. 2511 are referenced in the Statutory Index
to Sec. Sec. 2B5.3 (Criminal Infringement of Copyright or Trademark)
and 2H3.1 (Interception of Communications; Eavesdropping; Disclosure of
Certain Private or Protected Information).
(5) 18 U.S.C. 2701 (unlawful access to stored communications) makes
it unlawful to access, without authority, a facility through which an
electronic communication service is provided and obtain, alter, or
prevent authorized access to a wire or electronic communication stored
in that facility. A violator is subject to a fine under title 18,
United States Code, and imprisonment. If the offense is committed for
commercial advantage, malicious damage, or commercial gain, or in
furtherance of a crime or tort, the maximum term of imprisonment is 5
years (for a first offender) or 10 years (for a repeat offender);
otherwise, the maximum term of imprisonment is 1 year (for a first
offender) or 5 years (for a repeat offender).
Offenses under 18 U.S.C. 2701 are referenced in the Statutory Index
to Sec. 2B1.1 (Theft, Property Destruction, and Fraud).
Section 209(b) of the Act requires that, in determining the
appropriate sentence for the above referenced crimes, the Commission
``shall consider the extent to which the current guidelines and policy
statements may or may not adequately account for the following factors
in order to create an effective deterrent to computer crime
[[Page 4805]]
and the theft or misuse of personally identifiable data'':
(1) The level of sophistication and planning involved in such
offense.
(2) Whether such offense was committed for purpose of commercial
advantage or private financial benefit.
(3) The potential and actual loss resulting from the offense
including--
(A) The value of information obtained from a protected computer,
regardless of whether the owner was deprived of use of the information;
and
(B) Where the information obtained constitutes a trade secret or
other proprietary information, the cost the victim incurred developing
or compiling the information.
(4) Whether the defendant acted with intent to cause either
physical or property harm in committing the offense.
(5) The extent to which the offense violated the privacy rights of
individuals.
(6) The effect of the offense upon the operations of an agency of
the United States Government, or of a State or local government.
(7) Whether the offense involved a computer used by the United
States Government, a State, or a local government in furtherance of
national defense, national security, or the administration of justice.
(8) Whether the offense was intended to, or had the effect of,
significantly interfering with or disrupting a critical infrastructure.
(9) Whether the offense was intended to, or had the effect of,
creating a threat to public health or safety, causing injury to any
person, or causing death.
(10) Whether the defendant purposefully involved a juvenile in the
commission of the offense.
(11) Whether the defendant's intent to cause damage or intent to
obtain personal information should be disaggregated and considered
separately from the other factors set forth in USSG 2B1.1(b)(14)
[currently Sec. 2B1.1(b)(15)].
(12) Whether the term ``victim'' as used in USSG 2B1.1, should
include individuals whose privacy was violated as a result of the
offense in addition to individuals who suffered monetary harm as a
result of the offense.
(13) Whether the defendant disclosed personal information obtained
during the commission of the offense.
Section 209(c) of the Act requires that in responding to the
directive, the Commission:
(1) Assure reasonable consistency with other relevant directives
and with other sentencing guidelines;
(2) Account for any additional aggravating or mitigating
circumstances that might justify exceptions to the generally applicable
sentencing ranges;
(3) Make any conforming changes to the sentencing guidelines; and
(4) Assure that the guidelines adequately meet the purposes of
sentencing as set forth in section 3553(a)(2) of title 18, United
States Code.
The proposed amendment and issues for comment address the factors
set forth in section 209(b) of the Act, and other related issues
arising under the Act and under case law, in the following manner:
(A) Level of Sophistication and Planning Involved in the Offense
Synopsis of Proposed Amendment: The proposed amendment responds to
subsection (b)(1) of the directive, which concerns the level of
sophistication involved in the offense, by amending the commentary in
Sec. 2B1.1 relating to fraud offenses that involve sophisticated
means. Specifically, the proposed amendment responds to a concern about
whether, in a case involving computers, the defendant's use of any
technology or software to conceal the identity or geographic location
of the perpetrator qualifies as ``especially complex or especially
intricate offense conduct pertaining to the execution or concealment of
an offense'' within the meaning of the sophisticated means enhancement
in Sec. 2B1.1(b)(9) and Application Note 8(B) of that guideline. The
proposed amendment adds this conduct to the list in Application Note
8(B) of examples of conduct that ordinarily indicates sophisticated
means.
Two issues for comment are also included.
Proposed Amendment:
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is
amended in Note 8(B) by adding at the end the following:
``In a scheme involving computers, using any technology or software
to conceal the identity or geographic location of the perpetrator
ordinarily indicates sophisticated means.''.
Issues for Comment:
1. The Commission requests comment regarding the factor described
in section 209(b)(1) of the Act (the level of sophistication and
planning involved in the offense). The guidelines currently address
this factor as follows:
(1) Section 2B1.1(b)(9) contains a 2-level enhancement, and a
minimum offense level of 12, if the offense involved sophisticated
means.
(2) Section 2B1.1(b)(4) contains a 2-level enhancement if the
offense involved receiving stolen property and the defendant was in the
business of receiving and selling stolen property, which Application
Note 5 provides is to be determined in part on the regularity and
sophistication of the defendant's activities.
Is the factor adequately addressed by these provisions? Should the
Commission increase the amount, or the scope, of these enhancements, or
of the minimum offense level, or any combination of those? Should the
Commission amend other guidelines to which these offenses are
referenced to address this factor, such as by adding comparable
enhancements, minimum offense levels, or both?
2. The Commission requests comment regarding whether Sec. 3B1.3
(Abuse of Position of Trust or Use of Special Skill) should apply to a
person who has self-trained computer skills. Does the guideline
adequately address such a person? Should the guideline include language
that unequivocally includes such a person, or should it include
language that unequivocally excludes such a person?
(B) Whether the Offense Was Committed for Purpose of Commercial
Advantage or Private Financial Benefit
Issue for Comment:
1. The Commission requests comment regarding the factor described
in section 209(b)(2) of the Act (whether the offense was committed for
purpose of commercial advantage or private financial benefit). The
guidelines currently address this factor as follows:
(1) Section 2H3.1 provides a 3-level enhancement at subsection
(b)(1)(B) if the purpose of an offense under 18 U.S.C. 2511 was to
obtain direct or indirect commercial advantage or economic gain, and a
cross reference at subsection (c)(1) that applies if the purpose of the
offense was to facilitate another offense.
(2) Section 2B1.5(b)(4) provides a 2-level enhancement if the
offense was committed for pecuniary gain or otherwise involved a
commercial purpose.
(3) Sections 2B1.1(b)(1), 2B2.3(b)(3), and 2B5.3(b)(1) provide
enhancements based on the monetary amounts involved in the offense.
Is the factor adequately addressed by these provisions? Should the
Commission increase the amount, or the scope, of these enhancements, or
the scope of the cross reference? Should the Commission amend other
guidelines to which these offenses are referenced to address this
factor, such as by adding comparable enhancements or cross references?
[[Page 4806]]
(C) The Potential and Actual Loss Resulting From the Offense Including
(A) the Value of Information Obtained From a Protected Computer,
Regardless of Whether the Owner Was Deprived of Use of the Information;
and (B) Where the Information Obtained Constitutes a Trade Secret or
Other Proprietary Information, the Cost the Victim Incurred Developing
or Compiling the Information
Synopsis of Proposed Amendment: The proposed amendment responds to
subsection (b)(3) of the directive by revising Sec. 2B1.1 (Theft,
Property Destruction, and Fraud). Specifically, it addresses two types
of information: information that the victim retains but that is copied
by the defendant, and information that constitutes a trade secret or
other proprietary information of the victim. Two options are presented.
Option 1 adds to the rule of construction for cases under 18 U.S.C.1030
(Fraud and related activity in connection with computers) regarding
pecuniary harm in Application Note 3(A)(v)(III), specifying that any
reduction in the value of proprietary information that resulted from
the offense should be included in the loss calculation. Option 2 adds a
provision in Application Note 3(C), specifying that, if the fair market
value of copied information is unavailable or insufficient, the court
may consider the cost the victim incurred in originally developing the
information or the reduction in the value of the information that
resulted from the offense.
Four issues for comment are also included.
Proposed Amendment:
[Option 1:
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is
amended in Note 3(A)(v)(III) by striking ``, and'' after ``prior to the
offense'' and inserting a semicolon; and by inserting after ``service''
the following:
``; and any reduction in the value of proprietary information
(e.g., trade secrets) that resulted from the offense''.]
[Option 2:
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is
amended in Note 3(C)(i) by inserting ``copied,'' after ``taken,''.
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is
amended in Note 3(C) by redesignating clauses (ii) through (v) as (iii)
through (vi); and by inserting after clause (i) the following new
clause:
``(ii) In the case of proprietary information (e.g., trade
secrets), the cost of developing that information or the reduction that
resulted from the offense in the value of that information.''.]
Issues for Comment:
1. The Commission requests comment regarding the factor described
in section 209(b)(3) of the Act (the potential and actual loss
resulting from the offense including (A) the value of information
obtained from a protected computer, regardless of whether the owner was
deprived of use of the information; and (B) where the information
obtained constitutes a trade secret or other proprietary information,
the cost the victim incurred developing or compiling the information).
The guidelines currently address this factor as follows:
(1) Sections 2B1.1(b)(1), 2B2.3(b)(3), and 2B5.3(b)(1) provide
enhancements based on the monetary amounts involved in the offense.
(2) Section 2B1.1, Application Note 19(A)(iv), provides an upward
departure if the offense created a risk of substantial loss beyond the
loss determined for purposes of Sec. 2B1.1(b)(1).
(3) Section 2B1.1, Application Note 19(A)(v), provides an upward
departure if, in a case involving stolen information from a ``protected
computer,'' the defendant sought the stolen information to further a
broader criminal purpose.
Is the factor adequately addressed by these provisions? Should the
Commission increase the amount, or the scope, of these enhancements?
Should the Commission amend other guidelines to which these offenses
are referenced to address this factor, such as by adding comparable
enhancements? Should these upward departure provisions be incorporated
as enhancements in the guidelines to which these offenses are
referenced?
2. Should the definition of ``loss'' in Sec. 2B1.1 be amended to
provide greater guidance to the court on how to estimate loss in cases
involving information obtained from a protected computer without
depriving the owner of the use of the information, or information
obtained that constitutes a trade secret or other proprietary
information? For such cases, should Sec. 2B1.1 include a special rule
for including and quantifying (or providing a stipulated amount for)
the loss, such as the special rule in Application Note 3(F)(i) relating
to credit cards?
3. The Commission requests comment regarding whether Sec. 2B1.1
adequately accounts for a case in which an individual suffers pecuniary
harm, but the pecuniary harm is immediately reimbursed by a third
party. In such a case, the pecuniary harm may not be treated as
``loss,'' and the individual may not be treated as a ``victim,'' for
purposes of Sec. 2B1.1.
Five circuit courts have addressed the issue of whether an
individual who is fully reimbursed for his or her temporary financial
loss by a third party is a ``victim'' for purposes of Sec.
2B1.1(b)(2). The Fifth Circuit in United States v. Conner, 537 F.3d
480, 489 (5th Cir. 2008), and the Sixth Circuit in United States v.
Yagar, 404 F.3d 967, 971 (6th Cir. 2005), have held that individuals
who have been fully reimbursed for temporary financial losses by a
third party are not ``victims'' within the meaning of Sec.
2B1.1(b)(2). Although the Second Circuit in United States v. Abiodun,
536 F.3d 162, 168 (2d Cir.), cert. denied, --S. Ct. --, 2008 WL 4619522
(2008), and the Ninth Circuit in United States v. Pham, 545 F.3d 712,
721 (9th Cir. 2008), have agreed with the reasoning of these courts,
they have further held that individuals who were fully reimbursed for
their financial losses by third parties may be deemed victims for
purposes of Sec. 2B1.1(b)(2) so long as they suffered an adverse
effect, measurable in monetary terms, as a result of the defendant's
conduct (e.g., the costs associated with obtaining reimbursements from
banks or credit card companies). The Eleventh Circuit in United States
v. Lee, 427 F.3d 881, 895 (11th Cir. 2005), did not agree. While
acknowledging that the facts of its case were significantly different
in that the monetary losses were neither short-lived nor immediately
reimbursed by third parties, the Lee court held that the operative time
for determining whether someone is a victim is the time of the offense,
irrespective of any subsequent remedial action.
Should the Commission amend the guidelines to address this
circumstance and, if so, how?
4. The Commission requests comment regarding whether Sec. 3B1.3
(Abuse of Position of Trust or Use of Special Skill) should apply to a
person who is an officer, employee, or insider of a business who
participates in an offense involving proprietary information (e.g.,
trade secrets) of that business. Does the guideline adequately address
such a person? Should the guideline include language that unequivocally
includes such a person, or should it include language that
unequivocally excludes such a person?
[[Page 4807]]
(D) Whether the Defendant Acted With Intent To Cause Either Physical or
Property Harm in Committing the Offense
Issue for Comment
1. The Commission requests comment regarding the factor described
in section 209(b)(4) of the Act (whether the defendant acted with
intent to cause either physical or property harm in committing the
offense). The guidelines currently address this factor as follows:
(1) Section 2B1.1(b)(13) provides a 2-level enhancement if the
offense involved the conscious or reckless risk of death or serious
bodily injury, or possession of a dangerous weapon in connection with
the offense.
(2) Section 2B1.1(c) provides a cross reference under which the
court applies a firearms or explosives guideline if firearms or
explosives are involved.
(3) Section 2H3.1(c) provides a cross reference under which the
court applies another offense guideline if the purpose was to
facilitate another offense.
(4) Section 2B1.1, Application Note 19, provides an upward
departure if the offense caused or risked substantial non-monetary
harm, such as physical harm or property harm.
(5) Section 2H3.1, Application Note 5, provides an upward departure
if the offense caused or risked substantial non-monetary harm, such as
physical harm or property harm.
(6) Section 5K2.5 (Property Damage or Loss) provides an upward
departure if the offense caused property damage or loss not taken into
account by the guidelines.
Is the factor adequately addressed by these provisions? If not,
should the Commission increase the amount, or the scope, of these
enhancements, or the scope of the cross reference or departure
provisions? Should the Commission amend other guidelines to which these
offenses are referenced to address this factor, such as by adding
comparable enhancements or cross references? Alternatively, should
these upward departure provisions be incorporated as enhancements in
the guidelines to which these offenses are referenced?
(E) The Extent to Which the Offense Violated the Privacy Rights of
Individuals
Synopsis of Proposed Amendment: The proposed amendment responds to
subsection (b)(5) of the directive (the extent to which the offense
violated the privacy rights of individuals) by revising Sec. 2H3.1
(Interception of Communications; Eavesdropping; Disclosure of Certain
Private or Protected Information). Two options are presented. Option 1
creates a new specific offense characteristic in Sec. 2H3.1 with three
alternative enhancements if the offense involved the personal
information or means of identification of specified numbers of
individuals. Specifically, it provides an enhancement of [2] levels for
offenses involving the personal information or means of identification
of [10]-[50] or more individuals; an enhancement of [4] levels for
[50]-[250] or more individuals; and an enhancement of [6] levels for
[250]-[1,000] or more individuals. The graduated levels ensure
incremental punishment for increasingly serious conduct. Option 2
amends Application Note 5 to Sec. 2H3.1, suggesting that an upward
departure may be warranted not only in a case in which the offense
involved confidential phone records information or tax return
information of a substantial number of individuals (as the application
note currently provides), but also in a case in which the offense
involved personal information or means of identification of a
substantial number of individuals.
The proposed amendment defines the term ``personal information'',
for purposes of Sec. 2H3.1, in the same manner as the term ``personal
information'' is defined for purposes of Sec. 2B1.1(b)(15). The
proposed amendment clarifies, for purposes of both guidelines, that
information is ``personal information'' only if it involves an
identifiable individual.
An issue for comment is also included.
Proposed Amendment:
[Option 1:
Section 2H3.1(b) is amended by adding at the end the following:
``(3) (Apply the greatest) If the defendant is convicted under 18
U.S.C. Sec. 2511 and the offense involved personal information or
means of identification of--
(A) [10]-[50] or more individuals, increase by [2] levels;
(B) [50]-[250] or more individuals, increase by [4] levels; or
(C) [250]-[1,000] or more individuals, increase by [6] levels.''.]
The Commentary to Sec. 2H3.1 captioned ``Application Notes'' is
amended in Note 4 by striking ``subsection (b)(2)(B)'' and inserting
``this guideline''; and by adding after the paragraph that begins ``
`Interactive computer service' '' the following:
`` `Means of identification' has the meaning given that term in 18
U.S.C. 1028(d)(7), except that such means of identification shall be of
an actual (i.e., not fictitious) individual, other than the defendant
or a person for whose conduct the defendant is accountable under Sec.
1B1.3 (Relevant Conduct).
`Personal information' means sensitive or private information
involving an identifiable individual (including such information in the
possession of a third party), including (i) medical records; (ii)
wills; (iii) diaries; (iv) private correspondence, including e-mail;
(v) financial records; (vi) photographs of a sensitive or private
nature; or (vii) similar information.''.
[Option 2:
The Commentary to Sec. 2H3.1 captioned ``Application Notes'' is
amended in Note 5(i) by inserting ``personal information, means of
identification,'' after ``involved''; and by inserting a comma before
``or tax''.]
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is
amended in Note 13(A) in the paragraph that begins `` `Personal
information' '' by inserting ``involving an identifiable individual''
after ``private information''.
Issue for Comment:
1. The Commission requests comment regarding the factor described
in section 209(b)(5) of the Act (the extent to which the offense
violated the privacy rights of individuals). In many cases, non-
monetary harm (such as a violation of privacy rights) may be difficult
or impossible to quantify. See, e.g., Sec. 2B1.1, comment. (backg'd.).
For that reason, non-monetary harm is typically accounted for by the
guidelines through a minimum offense level or an upward departure. The
guidelines currently address this factor as follows:
(1) Section 2B1.1, Application Note 19, provides an upward
departure if the offense resulted in a substantial invasion of a
privacy interest. It also provides an upward departure if, in a case
involving access devices or unlawfully produced or unlawfully obtained
means of identification, (i) the offense caused substantial harm to the
victim's reputation or credit record, or the victim suffered a
substantial inconvenience related to repairing the victim's reputation
or a damaged credit record; (ii) an individual whose means of
identification the defendant used to obtain unlawful means of
identification is erroneously arrested or denied a job because an
arrest record has been made in that individual's name; or (iii) the
defendant produced or obtained numerous means of identification with
respect to one individual and essentially assumed that individual's
identity.
(2) Section 2H3.1, Application Note 5, provides an upward departure
if the offense involved private information or resulted in a
substantial invasion of a privacy interest.
[[Page 4808]]
(3) Section 2B1.1(b)(15)(A) provides a 2-level enhancement if an
offense under 18 U.S.C. 1030 involved an intent to obtain personal
information, and Sec. 2H3.1(b)(2)(B) provides a 10-level enhancement
if an offense under 18 U.S.C. 119 involved the use of a computer to
make restricted personal information about a covered person publicly
available.
Is the factor adequately addressed through these provisions? If
not, should the Commission increase the amount, or the scope, of these
enhancements? Should the Commission amend other guidelines to which
these offenses are referenced to address this factor, such as by adding
comparable enhancements? Should these upward departure provisions be
incorporated as enhancements in the guidelines to which these offenses
are referenced?
(F) The Effect of the Offense Upon the Operations of an Agency of the
United States Government, or of a State or Local Government
Issue for Comment:
1. The Commission requests comment regarding the factor described
in section 209(b)(6) of the Act (the effect of the offense upon the
operations of an agency of the United States Government, or of a State
or local government). The guidelines currently address this factor as
follows:
(1) Section 5K2.7 (Disruption of Government Function) provides an
upward departure if the defendant's conduct resulted in a significant
disruption of a governmental function.
(2) Section 5K2.14 (Public Welfare) provides an upward departure if
national security, public health, or safety was significantly
endangered.
Is the factor adequately addressed through these upward departure
provisions? Alternatively, should these upward departure provisions be
incorporated as enhancements in the guidelines to which these offenses
are referenced?
(G) Whether the Offense Involved a Computer Used by the United States
Government, a State, or a Local Government in Furtherance of National
Defense, National Security, or the Administration of Justice
Issue for Comment:
1. The Commission requests comment regarding the factor described
in section 209(b)(7) of the Act (whether the offense involved a
computer used by the United States Government, a State, or a local
government in furtherance of national defense, national security, or
the administration of justice). The guidelines currently address this
factor as follows:
(1) Section 2B1.1 provides a 2-level enhancement at subsection
(b)(15)(A)(i) if an offense under 18 U.S.C. 1030 involved a computer
system used by or for a government entity in furtherance of the
administration of justice, national defense, or national security.
(2) Section 2B2.3(b)(1) provides a 2-level enhancement if a
trespass occurred on a computer system used by or for a government
entity in furtherance of the administration of justice, national
defense, or national security.
(3) Section 2B3.2(b)(3)(B) provides a 3-level enhancement if the
offense involved preparation to carry out a threat of damage to a
computer system used by or for a government entity in furtherance of
the administration of justice, national defense, or national security.
(4) Section 2B1.1, Application Note 19, provides an upward
departure in a case in which subsection (b)(15)(A)(iii) applies and the
disruption to the critical infrastructure is so substantial as to have
a debilitating impact on national security, national economic security,
or national public health or safety.
(5) Section 5K2.7 (Disruption of Government Function) provides an
upward departure if the defendant's conduct resulted in a significant
disruption of a governmental function.
(6) Section 5K2.14 (Public Welfare) provides an upward departure if
national security, public health, or safety was significantly
endangered.
Is the factor adequately addressed through these provisions? Should
the Commission increase the amount, or the scope, of these
enhancements? Should the Commission amend other guidelines to which
these offenses are referenced to address this factor, such as by adding
comparable enhancements? Should these upward departure provisions be
incorporated as enhancements in the guidelines to which these offenses
are referenced?
(H) Whether the Offense Was Intended to, or Had the Effect of,
Significantly Interfering With or Disrupting a Critical Infrastructure
Issue for Comment:
1. The Commission requests comment regarding the factor described
in section 209(b)(8) of the Act (whether the offense was intended to,
or had the effect of, significantly interfering with or disrupting a
critical infrastructure). The guidelines currently address this factor
as follows:
(1) Section 2B1.1 provides a 2-level enhancement at subsection
(b)(15)(A)(i) if an offense under 18 U.S.C. 1030 involved a computer
system used to maintain or operate a critical infrastructure, and a 6-
level enhancement (and a minimum offense level of 24) at subsection
(b)(15)(A)(iii) if an offense under section 1030 caused a substantial
disruption of a critical infrastructure.
(2) Section 2B2.3(b)(1) provides a 2-level enhancement if a
trespass occurred on a computer system used to maintain or operate a
critical infrastructure.
(3) Section 2B3.2(b)(3)(B) provides a 3-level enhancement if the
offense involved preparation to carry out a threat of damage to such a
computer system.
(4) Section 2B1.1, Application Note 19, provides an upward
departure in a case in which subsection (b)(15)(A)(iii) applies and the
disruption to the critical infrastructure is so substantial as to have
a debilitating impact on national security, national economic security,
or national public health or safety.
(5) Section 5K2.14 (Public Welfare) provides an upward departure if
national security, public health, or safety was significantly
endangered.
Is the factor adequately addressed through these provisions? Should
the Commission increase the amount, or the scope, of these enhancements
(or of the minimum offense level)? Should the Commission amend other
guidelines to which these offenses are referenced to address this
factor, such as by adding comparable enhancements (or minimum offense
levels)? Should these upward departure provisions be incorporated as
enhancements in the guidelines to which these offenses are referenced?
(I) Whether the Offense Was Intended to, or Had the Effect of, Creating
a Threat to Public Health or Safety, Causing Injury to any Person, or
Causing Death
Issue for Comment:
1. The Commission requests comment regarding the factor described
in section 209(b)(9) of the Act (whether the offense was intended to,
or had the effect of, creating a threat to public health or safety,
causing injury to any person, or causing death). The guidelines
currently address this factor as follows:
(1) Section 2B1.1(b)(13) provides a 2-level enhancement, and a
minimum offense level of 14, if the offense involved the conscious or
reckless risk of death or serious bodily injury.
(2) Section 2B3.2(b)(3)(B) provides a 3-level enhancement if the
offense involved preparation to carry out a threat of serious bodily
injury, and Sec. 2B3.2(b)(4) provides an enhancement if the victim
sustained bodily injury, with the amount of the enhancement
[[Page 4809]]
ranging from 2 to 6 levels according to the seriousness of the injury.
(3) Section 2B5.3(b)(5) provides a 2-level enhancement, and a
minimum offense level of 13, if the offense involved the conscious or
reckless risk of serious bodily injury.
(4) Section 2B1.1, Application Note 19, provides an upward
departure if the offense caused or risked substantial non-monetary
harm, or in a case in which subsection (b)(15)(A)(iii) applies and the
disruption to the critical infrastructure is so substantial as to have
a debilitating impact on national security, national economic security,
or national public health or safety.
(5) Section 5K2.14 (Public Welfare) provides an upward departure if
national security, public health, or safety was significantly
endangered.
Is the factor adequately addressed through these provisions? If
not, should the Commission increase the amount, or the scope, of these
enhancements (or minimum offense levels)? Should the Commission amend
other guidelines to address this factor, such as by adding comparable
enhancements (or minimum offense levels)? Should these upward departure
provisions be incorporated as enhancements in the guidelines to which
these offenses are referenced?
(J) Whether the Defendant Purposefully Involved a Juvenile in the
Commission of the Offense
Issue for Comment:
1. The Commission requests comment regarding the factor described
in section 209(b)(10) of the Act (whether the defendant purposefully
involved a juvenile in the commission of the offense). The guidelines
currently address this factor in Sec. 3B1.4 (Using a Minor to Commit a
Crime), which provides a 2-level adjustment if the defendant used or
attempted to use a minor to commit the offense or assist in avoiding
detection of, or apprehension for, the offense.
Is the factor adequately addressed by this adjustment? Should the
Commission increase the amount, or the scope, of this adjustment?
Should the Commission amend other guidelines to address this factor,
such as by adding enhancements comparable to this adjustment?
(K) Whether the Defendant's Intent To Cause Damage or Intent To Obtain
Personal Information Should Be Disaggregated and Considered Separately
From the Other Factors Set Forth in Sec. 2B1.1(b)(15)
Issue for Comment:
1. The Commission requests comment regarding the factor described
in section 209(b)(11) of the Act (whether the defendant's intent to
cause damage or intent to obtain personal information should be
disaggregated and considered separately from the other factors set
forth in Sec. 2B1.1(b)(15)).
For example, subsection (b)(15) currently applies only to offenses
under 18 U.S.C. 1030. Should the intent to cause damage or intent to
obtain personal information be disaggregated only within the context of
18 U.S.C. 1030 cases? Should the defendant's intent to cause damage or
intent to obtain personal information be a factor that applies to other
offenses as well?
(L) Whether the Term ``Victim'' as Used in Sec. 2B1.1 Should Include
Individuals Whose Privacy Was Violated as a Result of the Offense in
Addition to Individuals Who Suffered Monetary Harm as a Result of the
Offense
Issue for Comment:
1. The Commission requests comment regarding the factor described
in section 209(b)(12) of the Act (whether the term ``victim'' as used
in Sec. 2B1.1 should include individuals whose privacy was violated as
a result of the offense in addition to individuals who suffered
monetary harm as a result of the offense). In many cases, non-monetary
harm (such as a violation of privacy rights) may be difficult or
impossible to quantify. See, e.g., Sec. 2B1.1, comment. (backg'd.).
For that reason, non-monetary harm is typically accounted for by the
guidelines through a minimum offense level or an upward departure.
The guidelines currently address this factor as follows:
(1) Section 2B1.1, Application Note 19, provides an upward
departure if the offense resulted in a substantial invasion of a
privacy interest. It also provides an upward departure if, in a case
involving access devices or unlawfully produced or unlawfully obtained
means of identification, (i) the offense caused substantial harm to the
victim's reputation or credit record, or the victim suffered a
substantial inconvenience related to repairing the victim's reputation
or a damaged credit record; (ii) an individual whose means of
identification the defendant used to obtain unlawful means of
identification is erroneously arrested or denied a job because an
arrest record has been made in that individual's name; or (iii) the
defendant produced or obtained numerous means of identification with
respect to one individual and essentially assumed that individual's
identity.
(2) Section 2H3.1, Application Note 5, provides an upward departure
if the offense involved private information, or resulted in a
substantial invasion of privacy interest.
Is the factor adequately addressed through these upward departure
provisions? Alternatively, should these upward departure provisions be
incorporated as enhancements in the guidelines to which these offenses
are referenced?
The definition of ``victim'' in Sec. 2B1.1, Application Note 1,
currently applies only to a person who sustained any part of the
``actual loss'' or to an individual who sustained bodily injury. Should
the Commission modify that definition to also apply to an individual
whose privacy was violated? If so, what standard should be used to
determine whether an individual's privacy was violated? Should the
guidelines seek to quantify the loss of such an individual, for
purposes of the loss table in subsection (b)(1)? If so, what standard
would be used to quantify the loss? For example, in a case in which a
computer-related invasion of privacy occurs, should the guidelines
include a special rule for including and quantifying (or providing a
stipulated amount for) the loss, such as the special rule in
Application Note 3(F)(i) relating to credit cards? If the Commission
were to revise the applicability of Sec. 2B1.1 to individuals whose
privacy was violated, should the Commission do so for all offenses
under Sec. 2B1.1, or only for certain categories of cases, such as
cases involving identity theft, cases involving computers, or cases
involving violations of certain specified statutes?
Should the definition of ``reasonably foreseeable pecuniary harm''
in Sec. 2B1.1 be amended to expressly include such harm as the
reasonably foreseeable costs to the victim of correcting business,
financial, and government records that erroneously indicate the
victim's responsibility for particular transactions or applications;
the reasonably foreseeable costs of repairing any computer data,
program, system, or information that was altered or impaired in
connection with the offense; and the value of the time reasonably spent
by the victim in an attempt to remediate the intended or actual harm
incurred by the victim from the offense? Should the Commission make
such a change only for identity theft cases, such as by amending Sec.
2B1.1, Application Note 3(A)(v), to provide a special rule for identity
theft cases? Alternatively, should the Commission make such a change
for all cases under Sec. 2B1.1, such as by amending Application Note
3(A)(iv), or for some other category of cases?
[[Page 4810]]
(M) Whether the Defendant Disclosed Personal Information Obtained
During the Commission of the Offense
Issue for Comment:
1. The Commission requests comment regarding the factor described
in section 209(b)(13) of the Act (whether the defendant disclosed
personal information obtained during the commission of the offense).
The guidelines currently address this factor as follows:
(1) Section 2B1.1, Application Note 19, provides an upward
departure if the offense resulted in a substantial invasion of a
privacy interest.
(2) Section 2H3.1, Application Note 5, provides an upward departure
if the offense involved private information or resulted in a
substantial invasion of a privacy interest.
(3) Section 2B1.1(b)(15)(A) provides a 2-level enhancement if an
offense under 18 U.S.C.1030 involved an intent to obtain personal
information.
(4) Section 2H3.1(b)(2)(B) provides a 10-level enhancement if an
offense under 18 U.S.C.119 (protection of individuals performing
certain official duties) involved the use of a computer to make
restricted personal information about a covered person publicly
available.
Is the factor adequately addressed through these provisions? Should
the Commission increase the amount, or the scope, of these
enhancements? Should the Commission amend other guidelines to which
these offenses are referenced to address this factor, such as by adding
comparable enhancements? Should these upward departure provisions be
incorporated as enhancements in the guidelines to which these offenses
are referenced?
If the Commission were to amend the guidelines to more adequately
address this factor, what should constitute a ``disclosure'', and what
should constitute ``personal information''?
(N) Other Issues Relating to the Directive Not Otherwise Addressed
Above
Issues for Comment:
1. The Commission requests comment regarding section 209(a) of the
Act, which directs the Commission to review its guidelines and policy
statements applicable to persons convicted of offenses under 18 U.S.C.
1028 (fraud and related activity in connection with identification
documents, authentication features, and information), 1028A (aggravated
identity theft), 1030 (fraud and related activity in connection with
computers), 2511 (interception and disclosure of wire, oral, or
electronic communications prohibited), and 2701 (unlawful access to
stored communications), and any other relevant provisions of law, in
order to reflect the intent of Congress that such penalties be
increased in comparison to those currently provided by such guidelines
and policy statements. Section 209(b) of the Act directed the
Commission, in determining the appropriate sentence for those offenses,
to ``consider the extent to which the current guidelines and policy
statements may or may not adequately account for the following factors
in order to create an effective deterrent to computer crime and the
theft or misuse of personally identifiable data'', and provided a list
of factors. Other than the specific factors set forth in section
209(b), which are addressed more specifically in the issues for comment
set forth above, are there aggravating or mitigating circumstances
existing in cases involving those offenses that might justify
additional amendments to the guidelines?
2. Should the Commission create a new guideline specifically for
identity theft cases? If so, what should the new guideline provide?
(O) Technical Amendments
Synopsis of Proposed Amendment: The proposed amendment makes two
technical changes. First, it corrects several places in the Guidelines
Manual that erroneously refer to subsection ``(b)(15)(iii)'' of Sec.
2B1.1; the reference should be to subsection (b)(15)(A)(iii).
Second, it clarifies Application Note 2(B) of Sec. 3B1.3 (Abuse of
Position of Trust or Use of Special Skill). There is a concern that
Application Note 2(B) is internally inconsistent in a case in which the
defendant, as discussed in the example in Application Note 2(B)(i), is
an employee of a state motor vehicle department who knowingly issues
without proper authority a driver's license based on false, incomplete,
or misleading information. Arguably, to ``obtain'' or ``use'' a means
of identification (the terms used in the first sentence of Application
Note 2(B)) does not necessarily include to ``issue'' a means of
identification (the term used in the example in Application Note
2(B)(i)). The proposed amendment clarifies the first sentence of
Application Note 2(B) so that it expressly covers not only obtaining or
using, but also issuing or transferring, a means of identification.
Proposed Amendment:
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is
amended in Note 13(B) by inserting ``(A)'' after ``(15)'' each place it
appears.
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is
amended in Note 19(B) by inserting ``(A)'' after (15)''.
The Commentary to Sec. 3B1.3 captioned ``Application Notes'' is
amended in Note 2(B) by inserting ``, transfer, or issue'' after
``obtain''.
2. Online Pharmacy
Synopsis of Proposed Amendment: This proposed amendment addresses
changes made by the Ryan Haight Online Pharmacy Consumer Protection Act
of 2008, Public Law 110-465 (the ``Act''). The Act amends the
Controlled Substances Act (21 U.S.C. 801 et seq.) to create two new
offenses involving controlled substances. The first is 21 U.S.C. 841(h)
(Offenses Involving Dispensing of Controlled Substances by Means of the
Internet), which prohibits the delivery, distribution, or dispensing of
controlled substances over the Internet without a valid prescription.
The applicable statutory maximum term of imprisonment is determined
based upon the controlled substance being distributed. The second new
offense is 21 U.S.C. 843(c)(2)(A) (Prohibiting the Use of the Internet
to Advertise for Sale a Controlled Substance), which prohibits the use
of the Internet to advertise for sale a controlled substance. This
offense has a statutory maximum term of imprisonment of four years.
In addition to the new offenses, the Act increased the statutory
maximum terms of imprisonment for all Schedule III controlled substance
offenses (from 5 years to 10 years), for all Schedule IV controlled
substance offenses (from 3 years to 5 years), and for Schedule V
controlled substance offenses if the offense is committed after a prior
drug conviction (from 2 years to 5 years). The Act added a sentencing
enhancement for Schedule III controlled substance offenses where
``death or serious bodily injury results from the use of such
substance.'' The Act also includes a directive to the Commission that
states:
The United States Sentencing Commission, in determining whether to
amend, or establish new, guidelines or policy statements, to conform
the Federal sentencing guidelines and policy statements to this Act and
the amendments made by this Act, should not construe any change in the
maximum penalty for a violation involving a controlled substance in a
particular schedule as being the sole reason to amend, or establish a
new, guideline or policy statement.
First, the proposed amendment provides three options for
incorporating the new sentencing enhancement for cases involving
Schedule III controlled substances where ``death or serious
[[Page 4811]]
bodily injury results from the use of such substance.'' The enhancement
carries a statutory maximum term of imprisonment of 15 years. Option 1
proposes a new alternative base offense level at Sec. 2D1.1 (Unlawful
Manufacturing, Importing, Exporting, or Trafficking (Including
Possession with Intent to Commit These Offenses); Attempt or
Conspiracy) of [12]-[34]. Option 2 proposes a new specific offense
characteristic at Sec. 2D1.1 that provides an enhancement of [4]-[11]
levels; Option 2 also includes, as a sub-option, a minimum offense
level of [12]-[34]. Option 3 proposes a new invited upward departure
provision for Sec. 2D1.1.
Second, the proposed amendment revises the title of Sec. 2D3.1
(Regulatory Offenses Involving Registration Numbers; Unlawful
Advertising Relating to Schedule I Substances; Attempt or Conspiracy)
to reflect the new offense at 21 U.S.C.843(c)(2)(A) (Prohibiting the
Use of the Internet to Advertise for Sale a Controlled Substance). The
new offense is already referenced in Appendix A (Statutory Index) to
Sec. 2D3.1.
Third, the proposed amendment amends Appendix A (Statutory Index)
to refer the new offense at 21 U.S.C. 841(h) (Offenses Involving
Dispensing of Controlled Substances by Means of the Internet) to Sec.
2D1.1.
Several issues for comment are also included.
Proposed Amendment:
[Option 1:
Section 2D1.1(a) is amended by redesignating subdivision (3) as
subdivision (4); and by inserting after subdivision (2) the following
new subdivision:
``(3)[12]-[34], if the defendant is convicted under 21 U.S.C.
841(b)(1)(E) or 21 U.S.C. 960(b)(5), and the offense of conviction
establishes that death or serious bodily injury resulted from the use
of the substance; or''.]
[Option 2:
Section 2D1.1(b) is amended by redesignating subdivision (11) as
subdivision (12); and by inserting after subdivision (10) the following
new subdivision:
``(11) If the defendant is convicted under 21 U.S.C. 841(b)(1)(E)
or 21 U.S.C. 960(b)(5), and the offense of conviction establishes that
death or serious bodily injury resulted from the use of the substance,
increase by [4]-[11] levels. [If the resulting offense level is less
than level [12]-[34], increase to level [12]-[34].]''.
The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is
amended in Note 21 by striking ``(11)'' and inserting ``(12)'' each
place it appears.]
[Option 3:
The Commentary to Sec. 2D1.1 captioned ``Application Notes is
amended by adding at the end the following:
``27. Upward Departure Provision.--If the defendant is convicted
under 21 U.S.C.841(b)(1)(E) or 21 U.S.C.960(b)(5), and the offense of
conviction establishes that death or serious bodily injury resulted
from the use of the substance, an upward departure may be
warranted.''.]
Section 2D3.1 is amended in the heading by striking ``Schedule I''
and inserting ``Scheduled''.
Appendix A (Statutory Index) is amended by inserting after the line
referenced to 21 U.S.C. 841(g) the following:
``21 U.S.C. 841(h) 2D1.1''.
Issues for Comment:
1. The Commission requests comment regarding whether offenses
involving Schedule III substances are adequately addressed by the
guidelines. The Ryan Haight Online Pharmacy Consumer Protection Act of
2008, Public Law 110-465 (the ``Act''), increased the statutory maximum
term of imprisonment for those offenses from 5 years to 10 years.
Should the Commission revise the guidelines to more adequately address
these offenses and, if so, how? If the Commission should revise the
guidelines as they relate to Schedule III substances, what justifies
doing so?
For example, under the Drug Quantity Table in Sec. 2D1.1, the
maximum base offense level for an offense involving Schedule III
substances (except Ketamine) is 20, which applies to 40,000 or more
units of the substance concerned. Should the maximum base offense level
be increased (or eliminated entirely) so that in a case in which the
number of units involved is more than 40,000, a higher base offense
level applies? If so, what higher base offense levels are appropriate,
and what number of units should correspond to those higher base offense
levels?
Under the Drug Equivalency Tables in Sec. 2D1.1, 1 unit of a
Schedule III substance is equivalent to 1 gm of marihuana. Should a
different equivalency apply? If so, what should that different
equivalency be?
2. The Commission requests comment regarding whether offenses
involving Schedule IV substances are adequately addressed by the
guidelines. The Act increased the statutory maximum term of
imprisonment for those offenses from 3 years to 5 years. Should the
Commission revise the guidelines to more adequately address these
offenses and, if so, how? If the Commission should revise the
guidelines as they relate to Schedule IV substances, what justifies
doing so?
For example, under the Drug Quantity Table in Sec. 2D1.1, the
maximum base offense level for an offense involving Schedule IV
substances (except Flunitrazepam) is 12, which applies to 40,000 or
more units of the substance concerned. Should the maximum base offense
level be increased (or eliminated entirely) so that in a case in which
the number of units involved is more than 40,000, a higher base offense
level applies? If so, what higher base offense levels are appropriate,
and what number of units should correspond to those higher base offense
levels?
Under the Drug Equivalency Tables in Sec. 2D1.1, 1 unit of a
Schedule IV substance (except Flunitrazepam) is equivalent to 0.0625 gm
of marihuana. Should a different equivalency apply? If so, what should
that different equivalency be? For example, should the Commission amend
the Drug Equivalency Tables to provide that 1 unit of a Schedule IV
substance (except Flunitrazepam) is equivalent to 0.125 gm of
marihuana?
3. The Commission requests comment regarding whether offenses
involving Schedule V substances are adequately addressed by the
guidelines. For those offenses, the Act did not increase the statutory
maximum term of imprisonment for a first offense (which is 1 year), but
did increase the statutory maximum term of imprisonment if the offense
is committed after a prior drug conviction (from 2 years to 5 years).
Should the Commission revise the guidelines to more adequately address
these offenses and, if so, how? If the Commission should revise the
guidelines as they relate to Schedule V substances, what justifies
doing so?
For example, under the Drug Quantity Table in Sec. 2D1.1, the
maximum base offense level for an offense involving Schedule V
substances is 8, which applies to 40,000 or more units of the substance
concerned. Should the maximum base offense level be increased (or
eliminated entirely) so that in a case in which the number of units
involved is more than 40,000, a higher base offense level applies? If
so, what higher base offense levels are appropriate, and what number of
units should correspond to those higher base offense levels?
Under the Drug Equivalency Tables in Sec. 2D1.1, 1 unit of a
Schedule V substance is equivalent to 0.00625 gm of marihuana. Should a
different equivalency apply? If so, what should that different
equivalency be?
[[Page 4812]]
4. The Commission requests comment regarding whether offenses
involving hydrocodone substances are adequately addressed by the
guidelines. Currently, the guidelines do not distinguish between
hydrocodone substances and other Schedule III substances (except
Ketamine). The Act increased the statutory maximum term of imprisonment
for all Schedule III offenses, including hydrocodone offenses, from 5
years to 10 years. Should hydrocodone be treated differently than other
Schedule III substances and, if so, how? If the Commission should
revise the guidelines as they relate to hydrocodone, what justifies
doing so?
For example, under the Drug Quantity Table in Sec. 2D1.1, the
maximum base offense level for an offense involving Schedule III
substances (except Ketamine) is 20, which corresponds to 40,000 or more
units of the substance concerned. Should the maximum base offense level
be increased (or eliminated entirely) so that in a case in which the
number of units involved is more than 40,000, a higher base offense
level applies? If so, what higher base offense levels are appropriate,
and what number of units should correspond to those higher base offense
levels?
Under the Drug Equivalency Tables in Sec. 2D1.1, 1 unit of a
Schedule III substance, including hydrocodone, is equivalent to 1 gm of
marihuana. Should a different equivalency apply to hydrocodone? If so,
what should that different equivalency be? Should the guidelines take
into account (as is done for oxycodone) the weight of the hydrocodone
itself (i.e. , the ``hydrocodone actual''), rather than the number of
units of hydrocodone? If so, what base offense levels should apply, and
to what weights of hydrocodone actual should those base offense levels
correspond? For example, should the Commission amend the Drug
Equivalency Tables to provide that 1 gm of hydrocodone actual is
equivalent to 1,675 gm of marihuana?
3. Submersible Vessels
Synopsis of Proposed Amendment: This proposed amendment implements
the Drug Trafficking Vessel Interdiction Act of 2008, Public Law 110-
407 (the ``Act''). The Act creates a new offense at 18 U.S.C. 2285
(Operation of Submersible Vessel or Semi-Submersible Vessel Without
Nationality), which provides: ``Whoever knowingly operates, or attempts
or conspires to operate, by any means, or embarks in any submersible
vessel or semi-submersible vessel that is without nationality and that
is navigating or has navigated into, through, or from waters beyond the
outer limit of the territorial sea of a single country or a lateral
limit of that country's territorial sea with an adjacent country, with
the intent to evade detection, shall be fined under this title,
imprisoned not more than 15 years, or both.''
Section 103 of the Act also directs the Commission to promulgate or
amend the guidelines to provide for increased penalties for persons
convicted of offenses under 18 U.S.C. 2285. In carrying out this
directive, the Commission shall--
(1) Ensure that the sentencing guidelines and policy statements
reflect the serious nature of the offense described in section 2285 of
title 18, United States Code, and the need for deterrence to prevent
such offenses;
(2) Account for any aggravating or mitigating circumstances that
might justify exceptions, including--
(A) The use of a submersible vessel or semi-submersible vessel
described in section 2285 of title 18, United States Code, to
facilitate other felonies;
(B) The repeated use of a submersible vessel or semi-submersible
vessel described in section 2285 of title 18, United States Code, to
facilitate other felonies, including whether such use is part of an
ongoing criminal organization or enterprise;
(C) Whether the use of such a vessel involves a pattern of
continued and flagrant violations of section 2285 of title 18, United
States Code;
(D) Whether the persons operating or embarking in a submersible
vessel or semi-submersible vessel willfully caused, attempted to cause,
or permitted the destruction or damage of such vessel or failed to
heave to when directed by law enforcement officers; and
(E) Circumstances for which the sentencing guidelines (and policy
statements) provide sentencing enhancements;
(3) Ensure reasonable consistency with other relevant directives,
other sentencing guidelines and policy statements, and statutory
provisions;
(4) Make any necessary and conforming changes to the sentencing
guidelines and policy statements; and
(5) Ensure that the sentencing guidelines and policy statements
adequately meet the purposes of sentencing set forth in section
3553(a)(2) of title 18, United States Code.
The proposed amendment amends Sec. 2D1.1 (Unlawful Manufacturing,
Importing, Exporting, or Trafficking (Including Possession with Intent
to Commit these Offenses); Attempt or Conspiracy) by expanding the
scope of the specific offense characteristic at subsection (b)(2) to
apply if the defendant used a submersible vessel or semi-submersible
vessel as described in 18 U.S.C. 2285.
The proposed amendment also provides a new guideline at Sec. 2X7.2
(Submersible and Semi-Submersible Vessels) for the new offense at 18
U.S.C. 2285, with a base offense level of [12]-[34]. The proposed
amendment also provides upward departure provisions to account for
certain aggravating factors listed in the directive.
Finally, the proposed amendment provides a reference in Appendix A
(Statutory Index) to index the new offense to the new guideline.
Three issues for comment are also included.
Proposed Amendment:
Section 2D1.1(b)(2) is amended by striking ``or'' after
``substance,'' and inserting ``a submersible vessel or semi-submersible
vessel as described in 18 U.S.C. 2285 was used, or (C)'' after ``(B)''.
Chapter Two, Part X, Subpart 7 is amended in the heading by adding
at the end ``AND SUBMERSIBLE AND SEMI-SUBMERSIBLE VESSELS''.
Chapter Two, Part X, Subpart 7 is amended by adding at the end the
following new guideline and accompanying commentary:
``Sec. 2X7.2 Submersible and Semi-Submersible Vessels
(a) Base Offense Level: [12]-[34]
Commentary
Statutory Provision: 18 U.S.C. 2285.
Application Note:
1. Upward Departure Provisions.--An upward departure may be
warranted in any of the following cases:
(A) The offense involved a failure to heave to when directed by a
law enforcement officer.
(B) The offense involved an attempt to sink the vessel or the
sinking of the vessel.
(C) The defendant engaged in a pattern of activity involving use of
a submersible vessel or semi-submersible vessel described in 18 U.S.C.
2285 to facilitate other felonies.
(D) The offense involved use of the vessel as part of an ongoing
criminal organization or enterprise.
Background: This guideline implements the directive to the
Commission in section 103 of Public Law 110-407.''.
Appendix A (Statutory Index) is amended by inserting after the line
referenced to 18 U.S.C. 2284 the following:
``18 U.S.C. 2285 2X7.2''.
Issues for Comment:
[[Page 4813]]
1. The Commission requests comment regarding whether it should
reference the new offense at 18 U.S.C. 2285 (Operation of Submersible
Vessel or Semi-submersible Vessel Without Nationality) to Sec. 2X5.1
(Other Felony Offenses), instead of promulgating a new guideline at
Sec. 2X7.2 (Submersible and Semi-Submersible Vessels) for the new
offense, as provided for by the proposed amendment. Section 2X5.1
instructs the court to ``apply the most analogous offense guideline''
when an ``offense is a felony for which no guideline expressly has been
promulgated.'' In a case where ``there is not a sufficiently analogous
guideline'', Sec. 2X5.1 provides that:
The provisions of 18 U.S.C. 3553 shall control, except that any
guidelines and policy statements that can be applied meaningfully in
the absence of a Chapter Two offense guideline shall remain applicable.
If the Commission references section 2285 to Sec. 2X5.1, is there
further action the Commission should take to clarify how the guidelines
apply in such cases? If so, what action?
2. Section 103 of the Drug Trafficking Vessel Interdiction Act of
2008, Public Law 110-407, directs the Commission to consider
aggravating circumstances such as the use of such vessels as part of an
ongoing criminal organization or enterprise. Accordingly, the
Commission requests comment regarding how the proposed amendment's new
guideline at Sec. 2X7.2 (Submersible and Semi-Submersible Vessels), or
any other guideline to which offenses under 18 U.S.C. 2285 (Operation
of Submersible Vessel or Semi-submersible Vessel Without Nationality)
would be referenced, should account for cases in which the vessel is
used as part of an ongoing criminal organization or enterprise. The
Commission was informed at its public briefing in November 2008 that
the construction of such a vessel costs one million dollars or more and
takes one year or more to complete, and that such a vessel is intended
to be used for a single trip before being purposely sunk. If so, this
may indicate that the use of the submersible or semi-submersible vessel
typically is part of an ongoing criminal organization or enterprise.
Should the Commission account for this factor in setting the base
offense level? If so, should the Commission provide a specific offense
characteristic or a downward departure to account for a case in which
an ongoing criminal organization or enterprise is not involved?
Alternatively, should the Commission provide a specific offense
characteristic or an upward departure to account for this factor? Are
there any other amendments to the guidelines that should be made to
account for cases in which the vessel is used as part of an ongoing
criminal organization or enterprise?
3. The Commission requests comment regarding whether, in a case
sentenced under the proposed guideline, Sec. 2X7.2 (Submersible and
Semi-Submersible Vessels), and in which Sec. 3B1.2 (Mitigating Role)
applies, it should provide an alternative base offense level, downward
adjustment, or downward departure to reflect the lesser culpability of
the defendant?
4. Court Security
Issues for Comment:
1. The Court Security Improvement Act of 2007, Public Law 110-177
(the ``Act''), creates two new federal offenses, increases the
statutory maximum penalty for a number of existing federal offenses,
and contains a directive to the Commission relating to threats made in
violation of 18 U.S.C. 115 that occur over the Internet. The Commission
responded to the two new offenses created by the Act during the
amendment cycle ending May 1, 2008 (see Amendment 718). The Commission
requests comment regarding what additional amendments may be
appropriate in light of the Act. The increases in the statutory maximum
penalties provided by the Act raise issues concerning a number of
guidelines in Chapter Two, Part A, generally, and it may be necessary
to continue work on any or all of the remaining issues raised by the
Act beyond the amendment cycle ending May 1, 2009.
A. Increases in Statutory Maximum Penalties
The existing federal offenses with statutory maximum penalties
increased by the Act and the guidelines to which those offenses are
referenced are as follows:
(1) 18 U.S.C. 115 (Influencing, impeding, or retaliating against a
Federal official by threatening or injuring a family member) makes it
unlawful to, among other things, assault an individual who is a current
or former federal official, or a family member of such an individual,
with intent to impede the individual in, or retaliate against the
individual for, the performance of the individual's official duties.
Such an assault is punished under 18 U.S.C. 115(b)(1). The Act modified
the penalty structure of these offenses. In doing so, the Act
eliminated the reference to 18 U.S.C. 111 (Assaulting, resisting, or
impeding certain officers or employees), and increased the statutory
maximum terms of imprisonment for assaults involving physical contact
or intent to commit another felony (from 8 years to 10 years), and for
assaults resulting in serious bodily injury or assaults involving the
use of a dangerous weapon (from 20 years to 30 years). Other statutory
maximum terms of imprisonment include 20 years (for assaults resulting
in bodily injury) and 1 year (for simple assaults).
Offenses involving assaults punished under 18 U.S.C.115(b)(1) are
referenced in Appendix A (Statutory Index) to Sec. Sec. 2A2.1 (Assault
with Intent to Commit Murder; Attempted Murder); 2A2.2 (Aggravated
Assault), and 2A2.3 (Minor Assault).
(2) 18 U.S.C. 1112 (manslaughter) makes it unlawful to kill a human
being without malice, either upon a sudden quarrel or heat of passion
(``voluntary manslaughter'') or in the commission of an unlawful act
not amounting to a felony or in the commission, in an unlawful manner
or without due caution and circumspection, of a lawful act which might
produce death (``involuntary manslaughter''). The Act increased the
statutory maximum terms of imprisonment for voluntary manslaughter
(from 10 years to 15 years) and for involuntary manslaughter (from 6
years to 8 years).
Offenses under 18 U.S.C. 1112 are referenced in Appendix A
(Statutory Index) to Sec. Sec. 2A1.3 (Voluntary Manslaughter) and
2A1.4 (Involuntary Manslaughter).
(3) Subsection (a) of 18 U.S.C. 1512 (Tampering with a witness,
victim, or an informant), makes it unlawful to kill or attempt to kill
another person with intent to interfere in an official proceeding. It
also makes it unlawful to use or threaten physical force, or attempt to
do so, with intent to interfere with an official proceeding. The Act
increased the statutory maximum terms of imprisonment for the killing
of another under circumstances constituting manslaughter (by reference
to 18 U.S.C.1112, from 10 years to 15 years); for attempted murder or
attempted use of physical force (from 20 years to 30 years); and for
threat of use of physical force to prevent the attendance or testimony
in an official proceeding (from 10 years to 20 years). Offenses under
section 1512(a) are referenced in Appendix A (Statutory Index) to
Sec. Sec. 2A1.1 (First Degree Murder), 2A1.2 (Second Degree Murder),
2A1.3 (Voluntary Manslaughter), 2A2.1 (Assault with Intent to Commit
Murder; Attempted Murder), 2A2.2 (Aggravated Assault),
[[Page 4814]]
2A2.3 (Minor Assault), and 2J1.2 (Obstruction of Justice).
(4) Section 1512(b) makes it unlawful to intimidate, threaten, or
corruptly persuade another person, or to engage in misleading conduct
toward another person, with intent to interfere with an official
proceeding. The Act increased the statutory maximum term of
imprisonment for these offenses from 10 years to 20 years.
Offenses under section 1512(b) are referenced in Appendix A
(Statutory Index) to Sec. 2J1.2 (Obstruction of Justice).
(5) Section 1512(d) makes it unlawful to harass another person and
thereby hinder, delay, prevent, or dissuade an arrest or prosecution,
or the participation of a person in an official proceeding. The Act
increased the statutory maximum term of imprisonment for these offenses
from 1 year to 3 years.
Offenses under section 1512(d) are referenced in Appendix A
(Statutory Index) to Sec. 2J1.2 (Obstruction of Justice).
(6) Subsection (a) of 18 U.S.C. 1513 (Retaliating against a
witness, victim, or an informant) makes it unlawful to kill or attempt
to kill another person with intent to retaliate against a person for
attending or testifying at an official proceeding or for providing
information to a law enforcement officer. The Act increased the
statutory maximum terms of imprisonment for the killing of another
under circumstances constituting manslaughter (by reference to 18 18
U.S.C. 1112, from 10 years to 15 years) and for an attempt (from 20
years to 30 years). Other statutory penalties include death, or
imprisonment for life, if the offense involved the killing of another
under circumstances constituting murder.
Offenses under section 1513(a) are referenced in Appendix A
(Statutory Index) to Sec. 2J1.2 (Obstruction of Justice).
(7) Section 1513(b) makes it unlawful to cause bodily injury to
another person or damage the tangible property of another person (or
threaten to do so) with intent to retaliate against a person for
attending or testifying at an official proceeding or for providing
information to a law enforcement officer. The Act increased the
statutory maximum terms of imprisonment for such offenses from 10 years
to 20 years.
Offenses under section 1513(b) are referenced in Appendix A
(Statutory Index) to Sec. 2J1.2 (Obstruction of Justice).
(8) Other offenses under section 1513 include subsection (e) (which
makes it unlawful to knowingly, with intent to retaliate, take any
action harmful to any person for providing to a law enforcement officer
any truthful information relating to the commission or possible
commission of any federal offense) and subsection (f) (which makes it
unlawful to conspire to commit any offense under section 1513).
These other offenses under section 1513 are also referenced in
Appendix A (Statutory Index) to Sec. 2J1.2 (Obstruction of Justice).
Are the guidelines adequate as they apply to such offenses? If not,
what amendments to the guidelines should be made to address the
increases in statutory maximum penalties?
As described in paragraph (7), above, Appendix A (Statutory Index)
currently refers all offenses under section 1513 to Sec. 2J1.2
(Obstruction of Justice) only. An offense under section 1513 can
involve conduct such as killing, causing bodily injury, or threatening.
Should the Commission amend Appendix A (Statutory Index) to refer
offenses under section 1513 to other guidelines, either in addition to
or in lieu of referencing them to Sec. 2J1.2? If so, to which other
guidelines? Alternatively, should the Commission provide cross
references in Sec. 2J1.2 that allow for an offense under section 1513
to be sentenced under a guideline other than Sec. 2J1.2?
B. Official Victims
The Commission requests comment regarding cases in which an
official is the victim of an offense described above. The circumstance
of an official victim is addressed in the guidelines as follows:
(1) Section 3A1.2 contains an adjustment if the victim was an
individual who is a current or former government officer or employee
(or a member of the immediate family of such an individual), and the
offense was motivated by such status. If the applicable guideline is
from Chapter Two, Part A (as is the case with Sec. Sec. 2A1.1, 2A1.2,
2A2.1, 2A2.2, 2A2.3), the adjustment is 6 levels; otherwise (as with
Sec. 2J1.2), the adjustment is 3 levels.
(2) Section 3A1.2, Application Note 5, invites an upward departure
if the official victim is an exceptionally high-level official.
Do these provisions adequately address the circumstance of an
official victim? If not, what amendments to the guidelines should be
made? Should the Commission increase the amount, or the scope, of these
provisions? Should the upward departure provision be incorporated as an
enhancement in one or more of the applicable guidelines (e.g.,
Sec. Sec. 2A1.1, 2A1.2, 2A2.1, 2A2.2, 2A2.3, 2J1.2)?
The Commission also requests comment on cases in which a non-
official is the victim of an offense described above. Are the
guidelines adequate as they apply to such offenses? If not, what
amendments to the guidelines should be made?
C. Directive to the Commission
Section 209 of the Act directs the Commission to review the
guidelines as they apply to threats made in violation of 18 U.S.C. 115
(Influencing, impeding, or retaliating against a Federal official by
threatening or injuring a family member). Section 115 makes it unlawful
to assault, kidnap, or murder an individual who is a current or former
federal official, or a family member of such an individual, with intent
to impede the individual in, or retaliate against the individual for,
the performance of the individual's official duties; section 115 also
makes it unlawful to threaten such an assault, kidnapping, or murder.
Such a threat is punished under 18 U.S.C. 115(b)(4), which provides
that a violator is subject to a fine under title 18, United States
Code, and imprisonment of up to 6 years (if an assault was threatened)
or up to 10 years (if a kidnapping or murder was threatened). Offenses
involving threats made in violation of 18 U.S.C. 115 are referenced in
Appendix A of the Guidelines Manual (Statutory Index) to Sec. 2A6.1
(Threatening or Harassing Communications; Hoaxes; False Liens).
Section 209 specified that the Commission should review those
threats made in violation of section 115 ``that occur over the
Internet,'' and ``determine whether and by how much that circumstance
should aggravate the punishment pursuant to section 994 of title 28,
United States Code.'' Section 209 further directed the Commission to
``take into consideration the number of such threats made, the intended
number of recipients of such threats, and whether the initial senders
of such threats were acting in an individual capacity or as part of a
larger group.''
With regard to threats made in violation of section 115 that occur
over the Internet, the guidelines do not currently provide for the use
of the Internet to be an aggravating circumstance. Should that
circumstance aggravate the punishment and, if so, by how much?
Other factors specified in the directive (i.e., (i) the number of
threats made in violation of section 115, (ii) the intended number of
recipients of such threats, and (iii) whether the initial senders of
such threats were acting in an individual capacity or as part of a
larger group), are currently addressed in the guidelines as follows:
(1) Section 2A6.1(b)(2)(A) contains a 2-level enhancement if the
offense
[[Page 4815]]
involved more than two threats. Section 2A6.1, Application Note 1,
provides that, in determining whether this enhancement applies, conduct
that occurred prior to the offense must be ``substantially and directly
connected to the offense, under the facts of the case taken as a
whole''.
(2) Section 2A6.1, Application Note 4, invites an upward departure
if the offense involved substantially more than two threatening
communications to the same victim, or if the offense involved multiple
victims.
Are the factors in the directive relating to number of threats made
and intended number of recipients adequately addressed through these
upward departures? If not, what amendments to the guidelines should be
made? Should these upward departure provisions be incorporated as
enhancements in Sec. 2A6.1?
In considering whether to amend the guidelines as they apply to
offenses involving threats made in violation of section 115, should the
Commission focus on whether to amend the guidelines with regard to
offenses that occur over the Internet (i.e., the category of offenses
covered by the directive), or should the Commission also consider
whether to amend the guidelines with regard to offenses that do not
occur over the Internet? If the latter, what amendments to the
guidelines should be made?
5. Trafficking
Issues for Comment:
1. The William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008, Public Law 110-457 (the ``Act''), was
signed into law on December 23, 2008. The Act creates two new federal
offenses, amends a number of federal statutes, and contains a directive
to the Commission relating to certain alien harboring offenses. The
Commission requests comment regarding what amendments to the guidelines
may be appropriate in light of the Act. Given the recency of enactment
of the Act, it may be necessary to continue work on any or all of the
issues raised by the Act beyond the amendment cycle ending May 1, 2009.
A. Directive to the Commission
Section 222(g) of the Act directs the Commission to--review and, if
appropriate, amend the sentencing guidelines and policy statements
applicable to persons convicted of alien harboring to ensure conformity
with the sentencing guidelines applicable to persons convicted of
promoting a commercial sex act if--
(1) The harboring was committed in furtherance of prostitution; and
(2) The defendant to be sentenced is an organizer, leader, manager,
or supervisor of the criminal activity.
Alien harboring is an offense under 8 U.S.C.1324(a) (bringing in
and harboring certain aliens), which makes it unlawful to (among other
things) harbor an illegal alien. Offenses under section 1324(a) are
referenced to Sec. 2L1.1 (Smuggling, Transporting, or Harboring an
Unlawful Alien). In some circumstances, a person who harbors an alien
could also commit an offense under 8 U.S.C. 1328 (importation of alien
for immoral purpose), which makes it unlawful to (among other things)
harbor an illegal alien for purposes of prostitution or any other
immoral purpose. Offenses under section 1328, however, are referenced
not to Sec. 2L1.1 but to the guidelines applicable to promoting a
commercial sex act, Sec. 2G1.1 (Promoting a Commercial Sex Act or
Prohibited Sexual Conduct with an Individual Other than a Minor) and
Sec. 2G1.3 (Promoting a Commercial Sex Act or Prohibited Sexual
Conduct with a Minor; Transportation of Minors to Engage in a
Commercial Sex Act or Prohibited Sexual Conduct; Travel to Engage in
Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Sex
Trafficking of Children; Use of Interstate Facilities to Transport
Information about a Minor). It is to those guidelines, Sec. Sec. 2G1.1
and 2G1.3, that sex trafficking offenses, such as 18 U.S.C. 1591 and
the offenses under chapter 117 of title 18, United States Code (18
U.S.C. 2421 et seq.) are referenced.
The Commission requests comment regarding whether (and, if so, how)
the guidelines should be amended to ensure conformity between the
guidelines applicable to persons convicted of alien harboring (i.e.,
Sec. 2L1.1) and the guidelines applicable to persons convicted of
promoting a commercial sex act (i.e., Sec. Sec. 2G1.1 and 2G1.3) if
the alien harboring offense involves the circumstances specified in the
directive (i.e., the harboring was committed in furtherance of
prostitution and the defendant is an organizer, leader, manager, or
supervisor of the criminal activity).
In a case in which no aggravating or mitigating factors otherwise
apply, a person convicted of alien harboring under 8 U.S.C.
1324(a)(1)(A)(iii) under the circumstances specified in the directive
receives a base offense level of 12 under Sec. 2L1.1(a)(3) and an
upward adjustment of two, three, or four levels under Sec. 3B1.1
(Aggravating Role) for being an organizer, leader, manager, or
supervisor of the criminal activity, for a resulting offense level of
14 to 16. (Section 2L1.1 does not provide an enhancement for committing
the harboring in furtherance of prostitution.) In comparison, a person
convicted of promoting a commercial sex act receives a base offense
level of 14 under Sec. 2G1.1(a)(2) (if the offense did not involve a
minor) or a base offense level of 24 under Sec. 2G1.3(a)(4) (if the
offense did involve a minor). In cases in which aggravating or
mitigating circumstances are present, the guideline applicable to alien
harboring, Sec. 2L1.1, may conform with the guidelines applicable to
promoting a commercial sex act, Sec. Sec. 2G1.1 and 2G1.3, to a
greater or lesser degree.
Are amendments needed to Sec. 2L1.1, as it applies to a person
convicted of alien harboring under the circumstances specified in the
directive, to ensure conformity with Sec. Sec. 2G1.1 and 2G1.3? For
example, should the Commission provide a cross reference in Sec. 2L1.1
to Sec. Sec. 2G1.1 and 2G1.3 when the offense involves the
circumstances specified in the directive? Alternatively, should the
Commission provide one or more specific offense characteristics in
Sec. 2L1.1 to account for the circumstances specified in the
directive, such as a specific offense characteristic for harboring
committed in furtherance of prostitution? Should the Commission provide
a specific offense characteristic in Sec. 2L1.1 to account for
harboring in furtherance of prostitution when the offense involves a
minor? Should the Commission provide a specific offense characteristic
in Sec. 2L1.1 that incorporates the adjustment in Sec. 3B1.1
(Aggravating Role)? If the Commission were to provide one or more such
specific offense characteristics, what should the offense levels be?
Are there any other amendments that should be made to the guidelines as
they apply to a person convicted of alien harboring under the
circumstances specified in the directive?
B. New Offenses
The Act created two new offenses. The first new offense, 18 U.S.C.
1593A (benefiting financially from peonage, slavery, and trafficking in
persons), makes it unlawful to knowingly benefit, financially or by
receiving anything of value, from participation in a venture that has
engaged in any act in violation of section 1581(a), 1592, or 1595(a) of
title 18, United States Code, knowing or in reckless disregard of the
fact that the venture has engaged in such violation. A violator is
subject to a fine under title 18, United States Code, and imprisonment
in the same manner as a completed violation of such section.
[[Page 4816]]
The second new offense, 18 U.S.C. 1351 (fraud in foreign labor
contracting), makes it unlawful to knowingly and with intent to defraud
recruit, solicit or hire a person outside the United States for
purposes of employment in the United States by means of materially
false or fraudulent pretenses, representations or promises regarding
that employment. A violator is subject to a fine under title 18, United
States Code, and imprisonment of up to 5 years.
Should the Commission amend Appendix A (Statutory Index) to refer
these new offenses to one or more guidelines and, if so, which ones?
Should offenses under section 1593A be referred to Sec. 2H4.1
(Peonage, Involuntary Servitude, and Slave Trade)? Should offenses
under section 1351 be referred to Sec. 2B1.1 (Theft, Property
Destruction, and Fraud), or to Sec. 2H4.1 (Peonage, Involuntary
Servitude, and Slave Trade)? Are there aggravating or mitigating
circumstances existing in cases involving those offenses that might
justify additional amendments to the guidelines? If so, what amendments
to the guidelines should be made to address those circumstances?
C. Other Modifications to Chapter 77
Subtitle C of title II of the Act amended various provisions in
Chapter 77 (Peonage, Slavery, and Trafficking in Persons) of title 18,
United States Code, in particular the following offenses:
(A) 18 U.S.C. 1583 (enticement into slavery), which is referenced
in Appendix A (Statutory Index) to Sec. 2H4.1 (Peonage, Involuntary
Servitude, and Slave Trade).
(B) 18 U.S.C. 1584 (sale into involuntary servitude), which is
referenced in Appendix A (Statutory Index) to Sec. 2H4.1 (Peonage,
Involuntary Servitude, and Slave Trade).
(C) 18 U.S.C. 1589 (forced labor), which is referenced in Appendix
A (Statutory Index) to Sec. 2H4.1 (Peonage, Involuntary Servitude, and
Slave Trade).
(D) 18 U.S.C. 1590 (trafficking with respect to peonage, slavery,
involuntary servitude, or forced labor), which is referenced in
Appendix A (Statutory Index) to Sec. 2H4.1 (Peonage, Involuntary
Servitude, and Slave Trade).
(E) 18 U.S.C. 1591 (sex trafficking of children or by force, fraud,
or coercion), which is referenced in Appendix A (Statutory Index) to
Sec. Sec. 2G1.1 (Promoting a Commercial Sex Act or Prohibited Sexual
Conduct with an Individual Other than a Minor), 2G2.1 (Sexually
Exploiting a Minor by Production of Sexually Explicit Visual or Printed
Material; Custodian Permitting Minor to Engage in Sexually Explicit
Conduct; Advertisement for Minors to Engage in Production), and Sec.
2G1.3 (Promoting a Commercial Sex Act or Prohibited Sexual Conduct with
a Minor; Transportation of Minors to Engage in a Commercial Sex Act or
Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or
Prohibited Sexual Conduct with a Minor; Sex Trafficking of Children;
Use of Interstate Facilities to Transport Information about a Minor).
(F) 18 U.S.C. 1592 (unlawful conduct with respect to documents in
furtherance of trafficking, peonage, slavery, involuntary servitude, or
forced labor), which is referenced in Appendix A (Statutory Index) to
Sec. 2H4.1 (Peonage, Involuntary Servitude, and Slave Trade).
Are the guidelines adequate as they apply to such offenses? Are
there aggravating or mitigating circumstances existing in cases
involving such offenses that might justify additional amendments to the
guidelines? If so, what amendments to the guidelines should be made to
address those circumstances?
Among other things, the Act amended these offenses by extending to
these offenses the obstruction provision of 18 U.S.C. 1581 (peonage;
obstructing enforcement), under which a person who obstructs,
interferes with, or prevents the enforcement of the section is subject
to the same punishment as a person who commits the substantive offense.
Are the guidelines adequate as they apply to these offenses in a case
involving obstruction?
The Act also amended 18 U.S.C. 1589 and 1591 to provide that a
person who benefits financially from participating in a venture
involving trafficked labor is subject to the same punishment as a
person who commits the substantive offense. Are the guidelines adequate
as they apply to these offenses in a case involving these
circumstances?
The Act also amended 18 U.S.C. 1594 (general provisions) to provide
for conspiracy liability under these offenses. Are the guidelines
adequate as they apply to these offenses in a case involving
conspiracy?
Are there any other amendments to the guidelines that should be
made to address the amendments made by the Act?
6. Miscellaneous
Synopsis of Proposed Amendment: This proposed amendment is a multi-
part amendment responding to miscellaneous issues arising from
legislation recently enacted and other miscellaneous guideline
application issues.
Part A of the proposed amendment amends Appendix A (Statutory
Index) to include offenses created or amended by the Housing and
Economic Recovery Act of 2008 (Pub. L. 110-289). The new offense at 12
U.S.C. 4636b is referenced to Sec. 2B1.1 (Larceny, Embezzlement, and
Other Forms of Theft; Offenses Involving Stolen Property; Property
Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving
Altered or Counterfeit Instruments Other than Counterfeit Bearer
Obligations of the United States); as a conforming change, the similar
existing offense at 12 U.S.C. 1818(j) is also referenced to Sec.
2B1.1. The new offense at 12 U.S.C. 4641 is referenced to Sec. 2J1.1
(Contempt) and Sec. 2J1.5 (Failure to Appear by Material Witness); as
conforming changes, similar existing offenses (see 2 U.S.C. 192, 390; 7
U.S.C. 87f(e); 12 U.S.C. 1818(j), 1844(f), 2273, 3108(b)(6); 15 U.S.C.
78u(c), 80a-41(c), 80b-9(c), 717m(d); 16 U.S.C. 825f(c); 26 U.S.C.
7210; 33 U.S.C. 506, 1227(b); 42 U.S.C. 3611; 47 U.S.C. 409(m); 49
U.S.C. 14909, 16104) are also referenced to Sec. 2J1.1 and Sec.
2J1.5.
Part B of the proposed amendment amends Appendix A (Statutory
Index) to include offenses created or amended by the Consumer Product
Safety Improvement Act of 2008 (Pub. L. 110-314). These offenses (see
15 U.S.C. 1192, 1197(b), 1202(c), 1263, 2068) are referenced to Sec.
2N2.1 (Violations of Statutes and Regulations Dealing With Any Food,
Drug, Biological Product, Device, Cosmetic, or Agricultural Product).
Technical and conforming changes are also made.
Part C of the proposed amendment amends Appendix A (Statutory
Index) to include an offense created by the Veterans' Benefits
Improvement Act of 2008 (Pub. L. 110-389). The new offense at 50 U.S.C.
App. Sec. 527(e) is referenced to Sec. 2X5.2 (Class A Misdemeanors
(Not Covered by Another Specific Guideline)); as a conforming change,
the similar existing offense at 10 U.S.C. 987(f) is also referenced to
Sec. 2X5.2.
Part D of the proposed amendment amends Appendix A (Statutory
Index) to include an offense created by the Violence Against Women and
Department of Justice Reauthorization Act of 2005 (Pub. L. 109-162).
The new offense at 18 U.S.C. 117 is referenced to Sec. 2A6.2 (Stalking
or Domestic Violence).
Part E of the proposed amendment amends Appendix A (Statutory
Index) to include an offense created by the Child Soldiers
Accountability Act of 2008 (Pub. L. 110-340). The new offense at 18
U.S.C. 2442 is referenced to
[[Page 4817]]
Sec. 2H4.1 (Peonage, Involuntary Servitude, and Slave Trade).
Technical and conforming changes are also made. An issue for comment is
also provided.
Part F of the proposed amendment makes changes throughout the
Guidelines Manual so that it accurately reflects the amendments made by
the Judicial Administration and Technical Amendments Act of 2008 (Pub.
L. 110-406) to the probation and supervised release statutes (18 U.S.C.
3563, 3583). The changes include the addition of a new guideline for
intermittent confinement that parallels the statutory language, as well
as technical and conforming changes.
Part G of the proposed amendment amends the enhancement relating to
property from a national cemetery or veterans' memorial in subsection
(b)(6) of Sec. 2B1.1 (Larceny, Embezzlement, and Other Forms of Theft;
Offenses Involving Stolen Property; Property Damage or Destruction;
Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit
Instruments Other than Counterfeit Bearer Obligations of the United
States) so that it also covers trafficking in such property, and makes
a conforming change to the commentary. This part responds to the
directive to the Commission in the Let Our Veterans Rest in Peace Act
of 2008 (Pub. L. 110-384).
Part H of the proposed amendment makes changes to the child
pornography guidelines, Sec. 2G2.1 and Sec. 2G2.2, so that they
accurately reflect the amendments made to the child pornography
statutes (18 U.S.C. 2251 et seq.) by the Effective Child Pornography
Prosecution Act of 2007 (Pub. L. 110-358) and the PROTECT Our Children
Act of 2008 (Pub. L. 110-401). The changes relate primarily to cases
where child pornography is transmitted over the Internet. Under the
proposed amendment, where the guidelines refer to the purpose of
producing a visual depiction, they will also refer to the purpose of
transmitting a live visual depiction; where the guidelines refer to
possessing material, they will also refer to accessing with intent to
view the material. As a conforming change, this part also amends the
child pornography guidelines so that the term ``distribution'' includes
``transmission'', and the term ``material'' includes any visual
depiction, as now defined by 18 U.S.C. 2256 (i.e., to include data
which is capable of conversion into a visual image that has been
transmitted by any means, whether or not stored in a permanent format).
Part I of the proposed amendment makes a technical change to the
terms ``another felony offense'' and ``another offense'', as defined in
Application Note 14(C) of the firearms guideline, Sec. 2K2.1 (Unlawful
Receipt, Possession, or Transportation of Firearms or Ammunition;
Prohibited Transactions Involving Firearms or Ammunition). Those
definitions were slightly revised when they were placed into
Application Note 14(C) by Amendment 691 (effective November 1, 2006),
and some confusion has arisen regarding whether the revisions were
intended to have a substantive effect. The technical change amends the
terms to clarify that Amendment 691 was not intended to have a
substantive effect on those terms.
Part J of the proposed amendment revises Appendix A (Statutory
Index) so that the threat guideline, Sec. 2A6.1 (Threatening or
Harassing Communications; Hoaxes; False Liens), is included on the list
of guidelines to which 18 U.S.C. 2280 and 2332a are referenced. The
proposed amendment ensures that in a case in which an offense under one
of those statutes is committed by threat, the court has the option of
determining that Sec. 2A6.1 is the most analogous offense guideline.
Part K of the proposed amendment amends the enhancement relating to
serious bodily injury in subsection (b)(5) of Sec. 2B5.3 (Criminal
Infringement of Copyright or Trademark) so that it parallels the
corresponding enhancement for serious bodily injury in Sec. 2B1.1
(Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving
Stolen Property; Property Damage or Destruction; Fraud and Deceit;
Forgery; Offenses Involving Altered or Counterfeit Instruments Other
than Counterfeit Bearer Obligations of the United States). This part
responds to statutory amendments made by the Prioritizing Resources and
Organization for Intellectual Property Act of 2008 (Pub. L. 110-403).
An issue for comment is also included regarding whether the
guidelines are adequate as they apply to subsection (a)(7) of 18 U.S.C.
2252A, a new offense created by the PROTECT Our Children Act of 2008
(Pub. L. 110-401).
Proposed Amendment:
Part A (Housing and Economic Recovery Act of 2008):
Appendix A (Statutory Index) is amended by inserting before the
line referenced to 2 U.S.C. 437g(d) the following:
``2 U.S.C. 192 2J1.1, 2J1.5
2 U.S.C. 390 2J1.1, 2J1.5'';
by inserting after the line referenced to 7 U.S.C. 87b the
following:
``7 U.S.C. 87f(e) 2J1.1, 2J1.5'';
by inserting after the line referenced to 12 U.S.C. 631 the
following:
``12 U.S.C. 1818(j) 2B1.1
12 U.S.C. 1844(f) 2J1.1, 2J1.5
12 U.S.C. 2273 2J1.1, 2J1.5
12 U.S.C. 3108(b)(6) 2J1.1, 2J1.5
12 U.S.C. 4636b 2B1.1
12 U.S.C. 4641 2J1.1, 2J1.5'';
by inserting after the line referenced to 15 U.S.C. 78ff the
following:
``15 U.S.C. 78u(c) 2J1.1, 2J1.5
15 U.S.C. 80a-41(c) 2J1.1, 2J1.5'';
by inserting after the line referenced to 15 U.S.C. 80b-6 the
following:
``15 U.S.C. 80b-9(c) 2J1.1, 2J1.5'';
by inserting after the line referenced to 15 U.S.C. 714m(c) the
following:
``15 U.S.C. 717m(d) 2J1.1, 2J1.5'';
by inserting after the line referenced to 16 U.S.C. 773g the
following:
``16 U.S.C. 825f(c) 2J1.1, 2J1.5'';
in the line referenced to 26 U.S.C. 7210 by inserting ``, 2J1.5''
after ``2J1.1'';
in the line referenced to 33 U.S.C. 506 by inserting ``, 2J1.5''
after ``2J1.1'';
in the line referenced to 33 U.S.C. 1227(b) by inserting ``,
2J1.5'' after ``2J1.1'';
in the line referenced to 42 U.S.C. 3611(f) by inserting ``,
2J1.5'' after ``2J1.1'';
by inserting after the line referenced to 47 U.S.C. 223(b)(1)(A)
the following:
``47 U.S.C. 409(m) 2J1.1, 2J1.5'';
in the line referenced to 49 U.S.C. 14909 by inserting ``, 2J1.5''
after ``2J1.1'';
and in the line referenced to 49 U.S.C. 16104 by inserting ``,
2J1.5'' after ``2J1.1''.
Part B (Consumer Product Safety Improvement Act of 2008):
Chapter Two, Part N is amended in the heading by inserting
``CONSUMER PRODUCTS,'' after ``PRODUCTS,''.
Chapter Two, Part N, Subpart 2 is amended in the heading by
striking ``AND''; and by inserting ``, AND CONSUMER PRODUCTS'' after
``PRODUCTS''.
Section 2N2.1 is amended in the heading by striking ``or'' after
``Cosmetic,'' and by inserting ``, or Consumer Product'' at the end.
Appendix A (Statutory Index) is amended by inserting after the line
referenced to ``15 U.S.C. 1176'' the following:
``15 U.S.C. 1192 2N2.1
15 U.S.C. 1197(b) 2N2.1
15 U.S.C. 1202(c) 2N2.1
15 U.S.C. 1263 2N2.1'';
and by inserting after the line referenced to 15 U.S.C. Sec.
1990(c) the following:
``15 U.S.C. 2068 2N2.1''
.
[[Page 4818]]
Part C (Veterans' Benefits Improvement Act of 2008):
Appendix A (Statutory Index) is amended by inserting after the line
referenced to 8 U.S.C. 1375a(d)(3)(C),(d)(5)(B) the following:
``10 U.S.C. 987(f) 2X5.2'';
and by inserting after the line referenced to 50 U.S.C. 783(c) the
following:
``50 U.S.C. App. Sec. 527(e)2X5.2''.
Part D (Violence Against Women and Department of Justice
Reauthorization Act of 2005):
Appendix A (Statutory Index) is amended by inserting after the line
referenced to 18 U.S.C. 115(b)(3) the following:
``18 U.S.C. 117 2A6.2''.
Part E (Child Soldiers Accountability Act of 2008):
Chapter Two, Part H, Subpart 4 is amended in the heading by
striking ``AND'' after ``SERVITUDE,'' and by inserting ``, AND CHILD
SOLDIERS'' at the end.
Section 2H4.1 is amended in the heading by striking ``and'' after
``Servitude,'' and by inserting ``, and Child Soldiers'' at the end.
The Commentary to Sec. 2H4.1 captioned ``Statutory Provisions'' is
amended by inserting ``, 2442'' after ``1592''.
The Commentary to Sec. 2H4.1 captioned ``Application Notes'' is
amended in Note 1 by inserting as the last paragraph the following:
`` `Involuntary servitude' includes forced labor, slavery, and
service as a child soldier.''.
Appendix A (Statutory Index) is amended by inserting after the line
referenced to 18 U.S.C. 2425 the following:
``18 U.S.C. 2442 2H4.1''.
Issue for Comment:
1. The Commission requests comment regarding whether it should
amend Appendix A (Statutory Index) to reference the new offense at 18
U.S.C. 2242 to 2H4.1 (Peonage, Involuntary Servitude, and Slave Trade)
or to one or more other guidelines. Does Sec. 2H4.1, or one or more
other guidelines, adequately address offenses under 18 U.S.C. 2242 and,
if not, what aggravating or mitigating circumstances existing in those
cases might justify additional amendments to the guidelines?
Alternatively, should the Commission defer action in response to the
new offense at 18 U.S.C. 2242 this amendment cycle, undertake a broader
review of the guidelines pertaining to human rights offenses generally,
and include responding to the new offense as part of that broader
review?
Part F (Judicial Administration and Technical Amendments Act of
2008):
Section 5B1.3 is amended in subsection (a)(2) by striking ``, (B)
give notice'' and all that follows through ``or area,'' and inserting
``or (B) work in community service, unless the court has imposed a
fine, or''; and by striking the paragraph that begins ``Note: Section
3563(a)(2)''.
Section 5B1.3(e)(1) is amended by adding at the end ``See Sec.
5F1.1 (Community Confinement).''.
Section 5B1.3(e)(6) is amended by adding at the end ``See Sec.
5F1.8 (Intermittent Confinement).''.
Section 5C1.1 is amended by striking the asterisk each place it
appears.
The Commentary to Sec. 5C1.1 captioned ``Application Notes'' is
amended by striking the asterisk each place it appears; and by striking
the paragraph that begins ``Note: Section 3583(d)'' and the paragraph
that begins ``However,''.
Section 5D1.3(e)(1) is amended by striking the asterisk; and by
striking the paragraph that begins ``Note: Section 3583(d)'' and the
paragraph that begins ``However,''.
Section 5D1.3(e) is amended by adding at the end the following
paragraph:
``(6) Intermittent Confinement
Intermittent confinement (custody for intervals of time) may be
ordered as a condition of supervised release during the first year of
supervised release. See Sec. 5F1.8 (Intermittent Confinement).''.
Section 5F1.1 is amended by striking the asterisk; and by striking
the paragraph that begins ``Note: Section 3583(d)'' and the paragraph
that begins ``However,''.
Chapter Five, Part F is amending by adding at the end the following
new guideline and accompanying commentary:
``Sec. 5F1.8. Intermittent Confinement
Intermittent confinement may be imposed as a condition of probation
or supervised release.
Commentary
Application Notes:
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).
2. Intermittent confinement shall be imposed as a condition of
supervised release 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).''.
Chapter Seven, Part A is amended in Subpart 2(b) in the second
paragraph by striking ``With the exception'' and all that follows
through ``probation, the'' and inserting ``The''; and by striking the
paragraph that begins ``Note: Section 3583(d)'' and the paragraph that
begins ``However,''.
The Commentary to Sec. 7B1.3 captioned ``Application Notes'' is
amended by striking Note 5 and inserting the following:
``5. Intermittent confinement is authorized as a condition of
probation only during the first year of the term of probation, see 18
U.S.C. 3563(b)(10), and as a condition of supervised release only
during the first year of supervised release, see 18 U.S.C. 3583(d). See
Sec. 5F1.8 (Intermittent Confinement).''.
Section 8D1.3 is amended by striking subsection (b) and inserting
the following:
``(b) Pursuant to 18 U.S.C. 3563(a)(2), if a sentence of probation
is imposed for a felony, the court shall impose as a condition of
probation at least one of the following: (1) Restitution or (2)
community service, unless the court has imposed a fine, or unless the
court finds on the record that extraordinary circumstances exist that
would make such condition plainly unreasonable, in which event the
court shall impose one or more other conditions set forth in 18 U.S.C.
3563(b).''.
Part G (Let Our Veterans Rest in Peace Act of 2008):
Section 2B1.1(b)(6) is amended by striking ``or'' after ``damage
to,''; and by inserting ``or trafficking in,'' after ``destruction
of,''.
The Commentary to Sec. 2B1.1 captioned ``Background'' is amended
in the paragraph that begins ``Subsection (b)(6)'' by inserting at the
end before the period the following: ``and the directive to the
Commission in section 3 of Public Law 110-384''.
Part H (PROTECT Our Children Act of 2008 and Effective Child
Pornography Prosecution Act of 2007):
Section 2G2.1(b)(6) is amended by inserting ``or for the purpose of
transmitting such material live'' after ``explicit material''.
The Commentary to Sec. 2G2.1 captioned ``Application Notes'' is
amended in Note 1 in the paragraph that begins `` `Distribution'' ' by
inserting ``transmission,'' after ``production,''; and by inserting
after the paragraph that begins `` `Interactive computer service' ''
the following paragraph:
[[Page 4819]]
`` `Material' includes a visual depiction, as defined in 18 U.S.C.
Sec. 2256.''.
The Commentary to Sec. 2G2.1 captioned ``Application Notes'' is
amended in Note 4 by inserting ``or for the purpose of transmitting
such material live'' after ``explicit material'' each place it appears;
and in Note 4(B) by striking ``purpose'' after ``for such'' and
inserting ``purposes''.
Section 2G2.2(b)(6) is amended by inserting ``or for accessing with
intent to view the material,'' after ``material,''.
Section 2G2.2(c)(1) is amended by inserting ``or for the purpose of
transmitting a live visual depiction of such conduct'' after ``such
conduct''.
The Commentary to Sec. 2G2.2 captioned ``Application Notes'' is
amended in Note 1 in the paragraph that begins ```Distribution''' by
inserting ``transmission,'' after ``production,''; by inserting after
the paragraph that begins ```Interactive computer service''' the
following:
```Material' includes a visual depiction, as defined in 18 U.S.C.
2256.'' and
in the paragraph that begins ``Sexual abuse or exploitation'' by
inserting ``accessing with intent to view,'' after ``possession,''.
The Commentary to Sec. 2G2.2 captioned ``Application Notes'' is
amended in Note 2 by inserting ``access with intent to view,'' after
``possess,''.
The Commentary to Sec. 2G2.2 captioned ``Application Notes'' is
amended in Note 4(B)(ii) by striking ``recording'' and inserting
``visual depiction'' each place it appears.
The Commentary to Sec. 2G2.2 captioned ``Application Notes'' is
amended in Note 5(A) by inserting ``or for the purpose of transmitting
live any visual depiction of such conduct'' after ``such conduct''.
Part I (Clarification of Sec. 2K2.1, Application Note 14(C)):
The Commentary to Sec. 2K2.1 captioned ``Application Notes'' is
amended in Note 14(C) by striking ``the'' before ``explosive'' and
inserting ``an'' each place it appears.
Part J (Treatment of 18 U.S.C. 2280, 2332a in Statutory Index):
Appendix A (Statutory Index) is amended in the line referenced to
18 U.S.C. Sec. 2280 by inserting ``2A6.1,'' after ``2A4.1,''; and
in the line referenced to 18 U.S.C. 2332a by inserting ``2A6.1,''
before ``2K1.4''.
Part K (Prioritizing Resources and Organization for Intellectual
Property Act of 2008):
Section 2B5.3(b)(5) is amended by inserting ``death or'' after
``risk of''; and by striking ``13'' and inserting ``14'' each place it
appears.
Issue for Comment:
1. The Commission requests comment regarding whether the guidelines
are adequate as they apply to subsection (a)(7) of 18 U.S.C. 2252A, a
new offense created by the PROTECT Our Children Act of 2008 (Pub. L.
110-401). The new offense at subsection (a)(7) makes it unlawful to
knowingly produce with intent to distribute, or to knowingly
distribute, ``child pornography that is an adapted or modified
depiction of an identifiable minor.'' A violator is subject to a fine
under title 18, United States Code, and imprisonment up to 15 years.
Under Appendix A (Statutory Index), all offenses under 18 U.S.C.
2252A are referenced to the child pornography trafficking, receipt, and
possession guideline, Sec. 2G2.2 (Trafficking in Material Involving
the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping,
Soliciting, or Advertising Material Involving the Sexual Exploitation
of a Minor; Possessing Material Involving the Sexual Exploitation of a
Minor with Intent to Traffic; Possessing Material Involving the Sexual
Exploitation of a Minor).
Is Sec. 2G2.2 the guideline to which offenses under subsection
(a)(7) should be referenced? Alternatively, should the Commission amend
Appendix A (Statutory Index) to refer offenses under subsection (a)(7)
to a guideline or guidelines other than Sec. 2G2.2 and, if so, which
ones? Should the Commission amend the guidelines (such as by amending
Appendix A or by providing cross references) so that an offense under
subsection (a)(7) that involves distribution is referred to one
guideline (e.g., Sec. 2G2.2), and an offense under subsection (a)(7)
that involves production is referred to another guideline (e.g., the
child pornography production guideline, Sec. 2G2.1 (Sexually
Exploiting a Minor by Production of Sexually Explicit Visual or Printed
Material; Custodian Permitting Minor to Engage in Sexually Explicit
Conduct; Advertisement for Minors to Engage in Production))? Whether
offenses under subsection (a)(7) are referenced to Sec. 2G2.2 or to
one or more other guidelines, are there aggravating or mitigating
circumstances existing in cases involving those offenses that might
justify additional amendments to the guidelines? If so, how should the
guidelines be amended to address those circumstances? For example, if
an offense under subsection (a)(7) that involves production is referred
to Sec. 2G2.1, should the Commission provide a downward adjustment in
Sec. 2G2.1 to reflect the less serious nature of an offense involving
the production of child pornography that is an adapted or modified
depiction of an identifiable minor compared to other offenses involving
the production of child pornography covered by that guideline?
Alternatively, should the Commission create a new guideline for
offenses under subsection (a)(7)?
7. Influencing a Minor
Synopsis of Proposed Amendment: This proposed amendment addresses a
circuit conflict regarding the undue influence enhancement at Sec.
2A3.2(b)(2)(B)(ii) (Criminal Sexual Abuse of a Minor Under the Age of
Sixteen Year (Statutory Rape) or Attempt to Commit Such Acts) and at
Sec. 2G1.3(b)(2)(B) (Promoting a Commercial Sex Act or Prohibited
Sexual Conduct with a Minor; Transportation of Minors to Engage in a
Commercial Sex Act or Prohibited Sexual Conduct; Travel to Engage in
Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Sex
Trafficking of Children; Use of Interstate Facilities to Transport
Information about a Minor). The undue influence enhancement provides
for an increase in the defendant's offense level (four levels in Sec.
2A3.2 and two levels in Sec. 2G1.3) if ``a participant otherwise
unduly influenced the minor to engage in prohibited sexual conduct.''
In both guidelines, commentary states that in determining whether the
undue influence enhancement applies, ``the court should closely
consider the facts of the case to determine whether a participant's
influence over the minor compromised the voluntariness of the minor's
behavior.'' The commentary also provides for a rebuttable presumption
of undue influence ``[i]n a case in which a participant is at least 10
years older than the minor.''
In both guideline provisions, the term ``minor'' includes ``an
individual, whether fictitious or not, who a law enforcement officer
represented to a participant * * * could be provided for the purposes
of engaging in sexually explicit conduct'' or ``an undercover law
enforcement officer who represented to a participant that the officer
had not attained'' the age of majority.
Three circuits have three different approaches regarding the
application of the undue influence enhancement in cases in which the
``minor'' is actually an undercover law enforcement officer. The
Eleventh Circuit, in United States v. Root, 296 F.3d 1222 (11th Cir.
2002), held that, according to the terms of Sec. 2A3.2, the undue
influence enhancement can apply even when the
[[Page 4820]]
victim is an undercover law enforcement officer. In such a case, the
Eleventh Circuit held, the focus is on the defendant's conduct, not on
the fact that the victim's will was not actually overborne. The
Eleventh Circuit is also the only circuit that has addressed this issue
in the context of Sec. 2G1.3. See United States v. Vance, 494 F.3d 985
(11th Cir. 2007) (holding that Sec. 2G1.3(b)(2)(B) applies where the
minor is fictitious, and stating that ``the focus is on the defendant's
intent, not whether the victim is real or fictitious'').
The Seventh Circuit reached a different result in United States v.
Mitchell, 353 F.3d 552 (7th Cir. 2003), holding that ``the plain
language of [Sec. 2A3.2] cannot apply in the case of an attempt where
the victim is an undercover police officer.'' The Seventh Circuit also
stated that its reading of the guideline concluded that ``the
enhancement cannot apply [in any case] where the offender and victim
have not engaged in illicit sexual conduct.'' Id. at 559.
The Sixth Circuit, in United States v. Chriswell, 401 F.3d 459 (6th
Cir. 2005), took a third approach. The Sixth Circuit agreed in part
with the Seventh Circuit, holding that ``Sec. 2A3.2(b)(2)(B) is not
applicable in cases where the victim is an undercover agent
representing himself to be a child under the age of sixteen.'' Id. at
469. Unlike the Seventh Circuit, however, the Sixth Circuit concluded
that the enhancement can apply in other instances of attempted sexual
conduct.
The three proposed options reflect the three different
interpretations of the enhancement by the Eleventh, Sixth, and Seventh
Circuits. Option One reflects the Eleventh Circuit's approach by
amending the commentary regarding the undue influence enhancement in
Sec. Sec. 2A3.2 and 2G1.3 to provide that the enhancement can apply in
a case of attempted sexual conduct. Option One further amends the
commentary to provide that the undue influence enhancement can apply in
a case involving only an undercover law enforcement officer.
Option Two reflects the Sixth Circuit's approach. It amends the
commentary regarding the undue influence enhancement in Sec. Sec.
2A3.2 and 2G1.3 to provide that the enhancement can apply in a case of
attempted sexual conduct. Option Two further amends the commentary to
provide that the undue influence enhancement does not apply in a case
involving only an undercover law enforcement officer.
Option Three reflects the Seventh Circuit's approach. Contrary to
Options One and Two, Option Three amends the commentary regarding the
undue influence enhancement in Sec. Sec. 2A3.2 and 2G1.3 to provide
that the enhancement does not apply in a case of attempted sexual
conduct. Like Option Two, Option Three amends the commentary regarding
the undue influence enhancement in Sec. Sec. 2A3.2 and 2G1.3 to
provide that the enhancement does not apply in a case involving only an
undercover law enforcement officer.
All three options include a technical amendment to the background
of Sec. 2A3.2.
One issue for comment is also included.
Proposed Amendment:
[Option 1:
The Commentary to Sec. 2A3.2 captioned ``Application Notes'' is
amended in Note 3(B) in the paragraph that begins ``Undue Influence''
by adding at the end the following:
``Subsection (b)(2)(B)(ii) does not require that the participant
engage in prohibited sexual conduct with the minor.'';
in the paragraph that begins ``In a case'' by striking ``, for
purposes of'' and all that follows through ``sexual conduct'' and
inserting ``that subsection (b)(2)(B)(ii) applies'';
and by adding at the end as the last paragraph the following:
``Subsection (b)(2)(B)(ii) can apply in a case in which the only
`minor' (as defined in Application Note 1) involved in the offense is
an undercover law enforcement officer.''.]
[Option 2:
The Commentary to Sec. 2A3.2 captioned ``Application Notes'' is
amended in Note 3(B) in the paragraph that begins ``Undue Influence''
by adding at the end the following:
``Subsection (b)(2)(B)(ii) does not require that the participant
engage in prohibited sexual conduct with the minor.'';
in the paragraph that begins ``In a case'' by striking ``, for
purposes of'' and all that follows through ``sexual conduct'' and
inserting ``that subsection (b)(2)(B)(ii) applies'';
and by adding at the end as the last paragraph the following:
``Subsection (b)(2)(B)(ii) does not apply in a case in which the
only `minor' (as defined in Application Note 1) involved in the offense
is an undercover law enforcement officer.''.]
[Option 3:
The Commentary to Sec. 2A3.2 captioned ``Application Notes'' is
amended in Note 3(B) in the paragraph that begins ``Undue Influence''
by adding at the end the following:
``Subsection (b)(2)(B)(ii) requires that the participant engage in
prohibited sexual conduct with the minor.'';
in the paragraph that begins ``In a case'' by striking ``, for
purposes of'' and all that follows through ``sexual conduct'' and
inserting ``that subsection (b)(2)(B)(ii) applies'';
and by adding at the end as the last paragraph the following:
``Subsection (b)(2)(B)(ii) does not apply in a case in which the
only `minor' (as defined in Application Note 1) involved in the offense
is an undercover law enforcement officer.''.]
The Commentary to Sec. 2A3.2 captioned ``Background'' is amended
by striking ``two-level'' and inserting ``four-level'' each place it
appears.
[Option 1:
The Commentary to Sec. 2G1.3 captioned ``Application Notes'' is
amended in Note 3(B) in the paragraph that begins ``Undue Influence''
by adding at the end the following:
``Subsection (b)(2)(B) does not require that the participant
engage in prohibited sexual conduct with the minor.'';
in the paragraph that begins ``In a case'' by striking ``, for
purposes of'' and all that follows through ``sexual conduct'' and
inserting ``that subsection (b)(2)(B) applies'';
and by adding at the end as the last paragraph the following:
``Subsection (b)(2)(B) can apply in a case in which the only
`minor' (as defined in Application Note 1) involved in the offense is
an undercover law enforcement officer.''.]
[Option 2:
The Commentary to Sec. 2G1.3 captioned ``Application Notes'' is
amended in Note 3(B) in the paragraph that begins ``Undue Influence''
by adding at the end the following:
``Subsection (b)(2)(B) does not require that the participant
engage in prohibited sexual conduct with the minor.'';
in the paragraph that begins ``In a case'' by striking ``, for
purposes of'' and all that follows through ``sexual conduct'' and
inserting ``that subsection (b)(2)(B) applies'';
and by adding at the end as the last paragraph the following:
``Subsection (b)(2)(B) does not apply in a case in which the only
`minor' (as defined in Application Note 1) involved in the offense is
an undercover law enforcement officer.''.]
[Option 3:
The Commentary to Sec. 2G1.3 captioned ``Application Notes'' is
amended in Note 3(B) in the paragraph that begins ``Undue Influence''
by adding at the end the following:
``Subsection (b)(2)(B) requires that the participant engage in
prohibited sexual conduct with the minor.'';
in the paragraph that begins ``In a case'' by striking ``, for
purposes of'' and
[[Page 4821]]
all that follows through ``sexual conduct'' and inserting ``that
subsection (b)(2)(B) applies'';
and by adding at the end as the last paragraph the following:
``Subsection (b)(2)(B) does not apply in a case in which the only
`minor' (as defined in Application Note 1) involved in the offense is
an undercover law enforcement officer.''.]
Issue for Comment:
1. The Commission seeks comment regarding the current application
of the undue influence enhancements in both Sec. 2A3.2 and Sec.
2G1.3. In 2004, the Commission created Sec. 2G1.3 specifically to
address offenses under chapter 117 of title 18, United States Code,
that involve minors. See USSG App. C, Amendment 664 (Nov. 2004). Prior
to the creation of Sec. 2G1.3, chapter 117 offenses, primarily 18
U.S.C. 2422 (Coercion and Enticement) and 2423 (Transportation of
Minors), were sentenced under Sec. 2A3.2 either by direct reference
from Appendix A, or through a cross reference from Sec. 2G1.1. The
creation of a new guideline for chapter 117 cases was ``intended to
address more appropriately the issues specific to these offenses. In
addition, the removal of these cases from Sec. 2A3.2 permit[ted] the
Commission to more appropriately tailor [Sec. 2A3.2] to actual
statutory rape cases.'' USSG App. C, Amendment 664 (Nov. 2004).
The Commission requests comment regarding the application of the
undue influence enhancements in the two guidelines at issue. Should the
Commission amend the enhancement in either guideline in any way? If so,
what changes should the Commission make? Should, for example, the
Commission more narrowly tailor the enhancement in Sec. 2A3.2 to
reflect the offense conduct typical in cases now being sentenced under
Sec. 2A3.2? If so, how?
8. Commission of Offense While on Release
Synopsis of Proposed Amendment: This proposed amendment clarifies
Application Note 1 in Sec. 3C1.3 (Commission of Offense While on
Release). Section 3C1.3 (formerly Sec. 2J1.7, (see Appendix C to the
Guidelines Manual, Amendment 684) provides for a three-level adjustment
if the defendant is subject to the statutory enhancement found at 18
U.S.C. 3147--that is, if the defendant has committed the underlying
offense while on release. Application Note 1 to Sec. 3C1.3 states
that, in order to comply with the statute's requirement that a
consecutive sentence be imposed, the sentencing court must ``divide the
sentence on the judgment form between the sentence attributable to the
underlying offense and the sentence attributable to the enhancement.''
The Second and Seventh Circuits have held that, according to the
terms of Application Note 2 to Sec. 2J1.7 (now Application Note 1 to
Sec. 3C1.3), a sentencing court cannot apportion to the underlying
offense more than the maximum of the guideline range absent the three-
level enhancement. See United States v. Confredo, 528 F.3d 143 (2d Cir.
2008); United States v. Stevens, 66 F.3d 431 (2d Cir. 1995); United
States v. Wilson, 966 F.2d 243 (7th Cir. 1992). The Second Circuit has
stated that the example the Commission provides in the Application Note
does not abide by their interpretation of the rule: ``The commentary
example begins with a total range of 30-37 months. In all criminal
history categories, if the Sec. 2J1.7 three-level enhancement is
deleted from the guideline level at which a 30-37 month sentence is
imposed, the permissible range provided for the reduced sentence would
be 21-27 months.'' Stevens, at 435-36. The example states that a
properly ``apportioned'' sentence for the underlying offense would be
30 months. This is outside the guideline range for that offense.
Under ordinary guideline application principles, however, only one
guideline range applies to a defendant who committed an offense while
on release and is subject to the enhancement at 18 U.S.C. 3147. See
Sec. 1B1.1 (instructing the sentencing court to, in this order: (1)
Determine the offense guideline applicable to the offense of conviction
(the underlying offense); (2) determine the base offense level,
specific offense characteristics, and follow other instructions in
Chapter Two; (3) apply adjustments from Chapter Three; and, ultimately,
(4) ``[d]etermine the guideline range in Part A of Chapter Five that
corresponds to the offense level and criminal history category
determined above'').
The proposed amendment clarifies that the court determines the
applicable guideline range as in any other case. At that point, the
court determines an appropriate ``total punishment'' from within that
applicable guideline range, and then divides the total sentence between
the underlying offense and the Sec. 3147 enhancement as the court
considers appropriate.
Proposed Amendment:
The Commentary to Sec. 3C1.3 captioned ``Application Notes'' is
amended in Note 1 by striking ``as adjusted'' and inserting
``including, as in any other case in which a Chapter Three adjustment
applies (see Sec. 1B1.1 (Application Instructions)), the adjustment
provided''; and by adding at the end as the last sentence the
following:
``Similarly, if the applicable adjusted guideline range is 30-37
months and the court determines a `total punishment' of 30 months is
appropriate, a sentence of 24 months for the underlying offense plus 6
months under 18 U.S.C. 3147 would satisfy this requirement.''.
9. Counterfeiting and ``Bleached Notes''
Synopsis of Proposed Amendment: The proposed amendment clarifies
guideline application issues regarding the sentencing of counterfeiting
offenses involving ``bleached notes.'' Bleached notes are genuine
United States currency stripped of its original image through the use
of solvents or other chemicals and then reprinted to appear to be notes
of higher denomination than intended by the Treasury. Circuit courts
have resolved differently the question of whether offenses involving
bleached notes should be sentenced under Sec. 2B5.1 (Offenses
Involving Counterfeit Bearer Obligations of the United States) or Sec.
2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses
Involving Stolen Property; Property Damage or Destruction; Fraud and
Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments
Other than Counterfeit Bearer Obligations of the United States).
Compare, United States v. Schreckengost, 384 F.3d 922 (7th Cir. 2004)
(holding that bleached notes should be sentenced under Sec. 2B1.1);
United States v. Inclema, 363 F.3d 1177 (11th Cir. 2004) (same); with
United States v. Dison, 2008 WL 351935 (W.D. La. Feb 8, 2008) (applying
Sec. 2B5.1 in a case involving bleached notes); United States v. Vice,
2008 WL 113970 (W. D. La. Jan. 3, 2008) (same). The proposed amendment
resolves this circuit conflict and responds to concerns expressed by
federal judges and members of Congress concerning the guidelines
pertaining to offenses involving bleached notes.
The definition of the term ``counterfeit'' in Application Note 3 of
Sec. 2B5.1 has been cited by courts as the basis for declining to
apply Sec. 2B5.1 to offenses involving bleached notes. ``Counterfeit''
is defined to mean ``an instrument that purports to be genuine but is
not, because it has been falsely made or manufactured in its
entirety.'' Application Note 3 further provides that ``[o]ffenses
involving genuine instruments that have been altered are covered under
Sec. 2B1.1 (Theft, Property Destruction, and Fraud).'' Under this
definition, courts have had to consider whether a bleached note should
be considered falsely made or
[[Page 4822]]
manufactured in its entirety (and therefore sentenced under Sec.
2B5.1) or an altered note (and therefore sentenced under Sec. 2B1.1).
The proposed amendment resolves this issue to provide that offenses
involving bleached notes are to be sentenced under Sec. 2B5.1.
Specifically, the proposed amendment deletes Application Note 3 and
revises the definition of ``counterfeit'' to more closely parallel
relevant counterfeiting statutes, for example 18 U.S.C. 471
(Obligations or securities of the United States) and 472 (Uttering
counterfeit obligations or securities). As a clerical change, the
definition is moved from Application Note 3 to Application Note 1.
The proposed amendment also amends the enhancement at subsection
(b)(2)(B) to cover a case in which the defendant controlled or
possessed genuine United States currency paper from which the ink or
other distinctive counterfeit deterrent has been completely or
partially removed.
In addition, the proposed amendment amends Appendix A (Statutory
Index) by striking the alternative reference to Sec. 2B1.1 for two
offenses that do not involve elements of fraud.
Specifically, the amendment deletes alternative reference to Sec.
2B1.1 for offenses under 18 U.S.C. 474A (Deterrents to counterfeiting
of obligations and securities) and 476 (Taking impressions of tools
used for obligations or securities). As a result, these offenses would
be referenced solely to Sec. 2B5.1. A conforming change is made to
delete these offenses from the list of statutory provisions in Sec.
2B1.1.
Proposed Amendment:
Section 2B5.1(b)(2)(B) is amended by inserting ``(ii) genuine
United States currency paper from which the ink or other distinctive
counterfeit deterrent has been completely or partially removed;'' after
``paper;'' and by striking ``or (ii)'' and inserting ``or (iii)''.
The Commentary to Sec. 2B5.1 captioned ``Application Notes'' is
amended in Note 1 by inserting after the paragraph that begins
``Definitions.--'' the following:
`` `Counterfeit' refers to an instrument that has been falsely
made, manufactured, or altered. For example, an instrument that has
been falsely made or manufactured in its entirety is `counterfeit', as
is a genuine instrument that has been falsely altered (such as a
genuine $5 bill that has been altered to appear to be a genuine $100
bill).''.
The Commentary to Sec. 2B5.1 captioned ``Application Notes'' is
amended by striking Note 3 in its entirety and by redesignating Note 4
as Note 3.
Appendix A (Statutory Index) is amended in the line referenced to
18 U.S.C. 474A by striking ``2B1.1,''; and in the line referenced to 18
U.S.C. Sec. 476 by striking ``2B1.1,''.
10. Technical
Synopsis of Proposed Amendment: This proposed amendment is a multi-
part amendment that makes various technical and conforming changes to
the guidelines.
Part A of the proposed amendment addresses several cases in which
the guidelines refer to another guideline, or to a statute or rule, but
the reference has become incorrect or obsolete. First, the proposed
amendment makes technical changes in Sec. 1B1.8 (Use of Certain
Information) to address the fact that provisions that had been
contained in subsection (e)(6) of Rule 11 of the Federal Rules of
Criminal Procedure are now contained in subsection (f) of that rule.
Second, it makes a technical change in Sec. 2J1.1 (Contempt),
Application Note 3, to address the fact that the provision that had
been contained in subsection (b)(7)(C) of Sec. 2B1.1 (Theft, Property
Destruction, and Fraud) is now contained in subsection (b)(8)(C) of
that guideline. Third, it makes a technical change in Sec. 4B1.2
(Definitions of Terms used in Section 4B1.1), Application Note 1,
fourth paragraph, to address the fact that the offense that had been
contained in subsection (d)(1) of 21 U.S.C. 841 is now contained in
subsection (c)(1) of that section. Fourth, it makes technical changes
in Sec. 5C1.2 (Limitation on Applicability of Statutory Minimum
Sentences in Certain Cases), Application Note 8, to address the fact
that subsections (c)(1) and (c)(3) of Rule 32 of the Federal Rules of
Criminal Procedure are now contained in subsections (f) and (i) of that
rule. Fifth, it makes a technical change in Sec. 5D1.2 (Term of
Supervised Release), Commentary, to address the fact that the provision
that had been contained in subsection (b) of Sec. 5D1.2 is now
contained in subsection (c) of that guideline. Sixth, it makes a
technical change in Appendix A (Statutory Index) to address the fact
that the offense that had been contained at subsection (f) of 42 U.S.C.
3611 is now contained in subsection (c) of that section.
Part B of the proposed amendment resolves certain technical issues
that have arisen in the Guidelines Manual with respect to child
pornography offenses. First, the proposed amendment makes technical
changes in Sec. 2G2.1, Statutory Provisions, to address the fact that
only some, not all, offenses under 18 U.S.C. 2251 are referenced to
Sec. 2G2.1. Second, it makes technical changes in Sec. 2G2.2,
Statutory Provisions, to address the fact that offenses under section
2252A(g) are now covered by Sec. 2G2.6, while offenses under section
2252A(a) and (b) continue to be covered by Sec. 2G2.2. Third, it makes
similar technical changes in Sec. 2G2.2, Application Note 1, to
address this fact. Fourth, it makes a technical change in Sec. 2G2.3,
Commentary, to address the fact that the statutory minimum sentence for
a defendant convicted under 18 U.S.C. 2251A is now 30 years
imprisonment. Fifth, it makes technical changes in Sec. 2G3.1,
subsection (c)(1), to address the fact that Sec. 2G2.4 no longer
exists, having been consolidated into Sec. 2G2.2 effective November 1,
2004. Sixth, it makes a technical change in Appendix A (Statutory
Index) to address the fact that the offenses that had been contained in
subsections (c)(1)(A) and (c)(1)(B) of 18 U.S.C. 2251 are now contained
in subsections (d)(1)(A) and (d)(1)(B) of that section. As a conforming
change, it also provides the appropriate reference for the offense that
is now contained in subsection (c) of that section. Seventh, it makes a
technical change in Appendix A (Statutory Index) to address the fact
that offenses under section 2252A(g) are now covered by Sec. 2G2.6,
while offenses under section 2252A(a) and (b) continue to be covered by
Sec. 2G2.2.
Proposed Amendment:
Part A (Technical Issues With Respect to References to Guidelines,
Statutes, and Rules):
The Commentary to Sec. 1B1.8 captioned ``Application Notes'' is
amended in Note 3 by striking ``(e)(6) (Inadmissibility of Pleas,'' and
inserting ``(f) (Admissibility or Inadmissibility of a Plea,''.
The Commentary to Sec. 2J1.1 captioned ``Application Notes'' is
amended in Note 3 by striking ``(7)'' and inserting ``(8)''.
The Commentary to Sec. 4B1.2 captioned ``Application Notes'' is
amended in Note 1 in the paragraph that begins ``Unlawfully possessing
a listed'' by striking ``(d)'' and inserting ``(c)''.
The Commentary to Sec. 5C1.2 captioned ``Application Notes'' is
amended in Note 8 by striking ``(c)(1), (3)'' and inserting ``(f),
(i)''.
The Commentary to Sec. 5D1.2 captioned ``Background'' is amended
by striking ``(b)'' and inserting ``(c)''.
Appendix A (Statutory Index) is amended in the line referenced to
42 U.S.C. 3611(f) by striking ``(f)'' and inserting ``(c)''.
Part B (Technical Issues With Respect to Child Pornography
Offenses):
[[Page 4823]]
The Commentary to Sec. 2G2.1 captioned ``Statutory Provisions'' is
amended by inserting ``(a)-(c), 2251(d)(1)(B)'' after ``2251''.
The Commentary to Sec. 2G2.2 captioned ``Statutory Provisions'' is
amended by inserting ``(a)-(b)'' after ``2252A''.
The Commentary to Sec. 2G2.2 captioned ``Application Notes'' is
amended in Note 1 in the last paragraph by inserting ``(a)-(c), Sec.
2251(d)(1)(B)'' after ``2251''.
The Commentary to Sec. 2G2.3 captioned ``Background'' is amended
by striking ``twenty'' and inserting ``thirty''.
Section 2G3.1(c)(1) is amended by inserting ``Soliciting,'' after
``Shipping,''; by striking ``Traffic) or Sec. 2G2.4 (Possession of
Materials Depicting a Minor Engaged in Sexually Explicit Conduct), as
appropriate.'' and inserting ``Traffic; Possessing Material Involving
the Sexual Exploitation of a Minor).''.
Appendix A (Statutory Index) is amended by inserting after the line
referenced to 18 U.S.C. 2251(a),(b) the following:
``18 U.S.C. 2251(c) 2G2.2'';
in the line referenced to 18 U.S.C. 2251(c)(1)(A) by striking
``(c)'' and inserting ``(d)'';
in the line referenced to 18 U.S.C. 2251(c)(1)(B) by striking
``(c)'' and inserting ``(d)'';
in the line referenced to 18 U.S.C. 2252A by inserting ``(a), (b)''
after ``2252A'';
and by inserting before the line referenced to 18 U.S.C.2252B the
following:
``18 U.S.C. 2252A(g) 2G2.6''.
[FR Doc. E9-1642 Filed 1-26-09; 8:45 am]
BILLING CODE 2210-40-P