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Sentencing Guidelines for United States Courts
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: February 11, 2000 (Volume 65, Number 29)]
[Notices]
[Page 7080-7093]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11fe00-123]
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UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice of (1) intent to promulgate a permanent amendment to
implement the No Electronic Theft (NET) Act of 1997 after any
temporary, emergency guideline amendment is promulgated to implement
that Act; and (2) additional proposed permanent amendments to the
sentencing guidelines, policy statements, and commentary. Request for
comment. Notice of public hearing.
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SUMMARY: (1) The Commission is considering making permanent any
temporary, emergency guideline amendment that it may promulgate to
implement the NET Act. The Commission is required to promulgate an
emergency guideline amendment not later than April 6, 2000. It is the
intent of the Commission subsequently to make that amendment a
permanent amendment to the sentencing guidelines not later than May 1,
2000.
(2) The Commission also gives notice of the following: (A) proposed
amendments to Secs. 2A3.1 (Criminal Sexual Abuse), 2A3.2 (Criminal
Sexual Abuse of a Minor (Statutory Rape)), 2A3.3 (Criminal Sexual Abuse
of a Ward), 2A3.4 (Abusive Sexual Contact), 2G1.1 (Promoting
Prostitution or Prohibited Sexual Contact), 2G2.2 (Trafficking in
Material Involving the Sexual Exploitation of a Minor), 2G2.4
(Possession of Materials Depicting a Minor Engaged in Sexually Explicit
Conduct), and 2G3.1 (Importing, Mailing, or Transporting Obscene
Matter) in order to implement the directives to the Commission
contained in the Protection of Children from Sexual Predators Act of
1998, and issues for comment; (B) proposed amendments to Sec. 2F1.1
(Fraud and Deceit) to implement the directives contained in the
Wireless Fraud Protection Act, and issues for comment; (C) proposed
amendments to Secs. 1B1.1 (Application Instructions), 2K2.4 (Use of
Firearms During or in Relation to Certain Crimes), and 4B1.2
(Definitions of Terms Used in Section 4B1.1) to respond to amendments
to 18 U.S.C. 924(c) made by Public Law 105-386, and issues for comment;
(D) issue for comment regarding whether, and in what manner the
Commission should address five issues of circuit conflict; and (E)
proposed technical and conforming amendments to various guidelines.
DATES: (1) Proposed Permanent NET Act Amendment.-- Public comment
supplementary to any public comment already received on the NET Act
pursuant to the notice of proposed temporary amendment (see 64 FR
72,129, Dec. 23, 1999) should be received by the Commission not later
than March 10, 2000; (2) Additional proposed permanent amendments and
issues for comment.--Public comment should be received by the
Commission not later than March 10, 2000; (3) Public hearing.--The
Commission has scheduled a public hearing for March 23, 2000, at 9:30
a.m., at the Thurgood Marshall Federal Judiciary Building, One Columbus
Circle, NE, Washington, DC 20002-8002. A person who desires to testify
at the public hearing should notify Michael Courlander, Public Affairs
Officer, at (202) 502-4590 not later than March 10, 2000. Written
testimony for the hearing must be received by the Commission not later
than March 16, 2000. Submission of written testimony is a requirement
for testifying at the public hearing.
FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs
Officer, Telephone: (202) 502-4590. For further information concerning
implementation of the NET Act, contact Kenneth Cohen, Director of
Legislative Affairs: (202) 502-4523.
SUPPLEMENTARY INFORMATION: (1) Proposed Permanent NET Act Amendment.--
The NET Act directs the Commission to: (A) ensure that the applicable
guideline range for a crime committed against intellectual property
(including offenses set forth at section 506(a) of title 17, United
States Code, and sections 2319, 2319A, and 2320 of title 18, United
States Code) is sufficiently stringent to deter such a crime; and (B)
ensure that the guidelines provide for consideration of the retail
value and quantity of the items with respect to which the intellectual
property offense was committed. The NET Act, as clarified by the
Digital Theft Deterrence and Copyright Damages Improvement Act of 1998,
requires the Commission to promulgate a temporary, emergency guideline
amendment not later than April 6, 2000.
In December 1999, the Commission published three options for
promulgating an emergency amendment to Sec. 2B5.3 (Criminal
Infringement of Copyright and Trademark) and accompanying commentary to
implement the NET Act directive. See 64 FR 72,129, Dec. 23, 1999. The
Commission has received, and is considering, public comment on those
three options. The Commission intends to promulgate a temporary,
emergency guideline amendment not later than April 6, 2000 (pursuant to
the legislation), but not earlier than March 23, 2000 (the date of the
public hearing).
An emergency guideline amendment must be re-promulgated as a
permanent amendment or it becomes ineffective upon the expiration of
the congressional review period of the Commission's next amendment
report to Congress (180 days from the day the Commission submits the
report to Congress). Accordingly, the Commission also intends to make
permanent any temporary, emergency guideline amendment it promulgates
to implement the NET Act.
Recognizing that some interested members of the public have already
commented on the proposed temporary amendments, the Commission invites
any other additional, supplementary comment regarding whether it should
make any such amendment permanent. See 64 FR 72,129, Dec. 23, 1999.
(2) Additional Proposed Permanent Amendments.--The proposed
amendments are presented in one of two formats. First, the amendments
are proposed as specific revisions to the relevant guidelines and
accompanying commentary. Bracketed text within a proposed amendment
indicates a heightened interest on the Commission's part for comment
and suggestions for alternative policy choices; for example, a proposed
enhancement of [2] levels indicates that the Commission is considering,
and invites comment on, alternative policy choices regarding the
appropriate level of enhancement. Similarly, bracketed text within a
specific offense characteristic or application note means that the
Commission invites comment on whether the proposed provision is
appropriate. Second, the Commission has highlighted certain issues for
comment and invites suggestions for how the Commission should respond
to those issues.
(3) Public Hearing.--The scope of the hearing is expected to
include: (A) the proposed amendment options to provide a temporary,
emergency amendment to implement the NET Act previously published in
the Federal
[[Page 7081]]
Register (64 FR 72129, Dec. 23, 1999); and (B) all permanent amendments
that are proposed for action in this amendment cycle ending May 1, 2000
(including any emergency NET Act amendment that is proposed to be made
permanent). For additional proposed amendments to the sentencing
guidelines previously published by the Commission, see 64 FR 72129,
Dec. 23, 1999; and 65 FR 2663, Jan. 18, 2000.
(4) Reports and other information pertaining to proposed
amendments, including the proposed amendment to implement the NET Act,
may be accessed through the Commission's website at www.ussc.gov.
Authority: 28 U.S.C. 994 (a), (o), (p); USSC Rules of Practice
and Procedure 4.3, 4.4, and 4.5.
Diana E. Murphy,
Chair.
Proposed Permanent Amendment to Implement the Net Act
(1) Synopsis of Proposed Amendment: For further information about
the Net Act and proposed amendment options to implement the NET Act,
see 64 FR 72129 December 23, 1999.
Proposed Amendment: Protection of Children Against Sexual Predators
Act
(2) Synopsis of Proposed Amendment: This proposed amendment
responds to the Protection of Children from Sexual Predators Act of
1998, Pub. L. 105-314. The Act contained the following directives to
the Commission:
(A) to provide a sentencing enhancement for offenses under Chapter
117 of title 18 (relating to the transportation of minors for illegal
sexual activity) while ensuring that the sentences, guidelines, and
policy statements for offenders convicted of such offenses are
appropriately severe and reasonably consistent with the other relevant
directives and the relevant existing guidelines;
(B) to provide for appropriate enhancement if the defendant used a
computer with the intent to persuade, induce, entice, coerce, or
facilitate the transport of a child to engage in any prohibited sexual
activity;
(C) to provide for appropriate enhancement if the defendant
knowingly misrepresented his/her actual identity with the intent to
persuade, induce, entice, coerce, or facilitate the transport of a
child to engage in any prohibited sexual activity;
(D) to provide for appropriate enhancement in any case in which the
defendant engaged in a pattern of activity involving the sexual abuse
or exploitation of a minor; and
(E) to clarify that the term ``distribution of pornography''
applies to the distribution of pornography for both monetary
remuneration and a non-pecuniary interest.
The Act also required the Commission, in carrying out these
directives, to ensure reasonable consistency with other guidelines, and
avoid duplicative punishment under the guidelines for substantially the
same offense. In addition, the Act contained two new crimes: (A) an
offense, at 18 U.S.C. 2425, for the transmittal of identifying
information about minors for criminal sexual purposes (which carries a
5-year statutory maximum term of imprisonment); and (B) an offense, at
18 U.S.C. 1470, for the transfer of obscene materials to minors (which
carries a 10-year statutory maximum term of imprisonment).
This amendment presents options to address the new offense of
transferring obscene materials to minors and to implement the
directives to account for nonpecuniary distribution of child
pornography and to provide enhancements for computer use and
misrepresentation of identity. Issues for comment follow on how best to
implement the directive to provide an enhancement for Chapter 117
offenses, to implement the directive to provide an enhancement for a
pattern of activity of sexual abuse and exploitation, and to address
the new offense of using interstate facilities to transmit identifying
information about minors for criminal sexual purposes.
Part (A): The New Offense of Prohibiting Transfer of Obscene Materials
to a Minor
Synopsis of Proposed Amendment: This amendment addresses the new
offense at 18 U.S.C. 1470, which makes it unlawful to transfer obscene
materials to a minor. The statutory maximum for the offense is 10 years
imprisonment. The amendment proposes to reference the offense in the
Statutory Index (Appendix A) to the guideline covering the importing,
mailing, or transporting of obscene matter, Sec. 2G3.1.
The amendment proposes to modify the distribution enhancement in
Sec. 2G3.1(b)(1) to define distribution of obscene matter to mean any
act, including production, transportation, and possession with intent
to distribute, related to (i) distribution for pecuniary gain (i.e.,
for profit); (ii) distribution for the receipt, or expectation of
receipt, of anything of value, but not for pecuniary gain; and (iii)
any knowing distribution to a minor. An additional 2-level enhancement
is proposed if the offense involved the knowing transfer of obscene
matter to a minor in order to entice that minor to engage in prohibited
sexual conduct.
An issue for comment is presented regarding whether the
distribution enhancement in Sec. 2G3.1(b)(1) should include
distribution between or among adults that does not involve the receipt,
or expectation of receipt, of anything of value. An issue for comment
is also presented regarding whether the current enhancement's reference
to the loss table in the fraud guideline should be deleted. Currently,
the distribution enhancement requires the court to increase the overall
offense level by the number of offense levels from the fraud loss table
corresponding to the retail value of the material involved in the
offense, but in any event not less than 5 levels.
Proposed Amendment:
Section 2G3.1 is amended in the title by adding at the end ``,
Transferring Obscene Matter to a Minor''.
Section 2G3.1(b) is amended by striking subdivision (1) in its
entirety and inserting the following:
``(1) (Apply the greatest.) If the offense involved:
(A) Distribution for pecuniary gain, increase by the number of
levels from the table in Sec. 2F1.1 corresponding to the retail value
of the material, but in no event by less than 5 levels.
(B) Distribution for the receipt, or expectation of receipt, of a
thing of value, but not for pecuniary gain, increase by [5] levels.
(C) Any distribution to a minor, increase by [5] levels. If the
distribution to a minor was intended to persuade, induce, entice,
coerce, or facilitate the transport of, the minor to engage in
prohibited sexual conduct, increase by an additional [2] levels.''.
The Commentary to Sec. 2G3.1 captioned ``Statutory Provisions'' is
amended by inserting '', 1470'' after ``1466''.
The Commentary to Sec. 2G3.1 captioned ``Application Note'' is
amended by striking Application Note 1 in its entirety and inserting
the following:
``1. For purposes of this guideline--
`Distribution' means any act, including production, transportation,
and possession with intent to distribute, related to distribution of
obscene matter.
`Distribution for pecuniary gain' means distribution for profit.
`Distribution for the receipt, or expectation of receipt, of a
thing of value, but not for pecuniary gain' means any transaction,
including bartering or other in-kind transaction, that is conducted for
a thing of value, but not for profit. `Thing of value' means anything
of valuable consideration.
[[Page 7082]]
`Distribution to a minor' means the knowing distribution to an
individual who is a minor at the time of the offense, knowing or
believing the individual is a minor at that time.
`Minor' means an individual who has not attained the age of [18]
years.
`Prohibited sexual conduct' means any sexual activity for which a
person can be charged with a criminal offense, including the production
of child pornography, as defined in 18 U.S.C. 2256(8).''.
Appendix A (Statutory Index) is amended by inserting after the line
referenced to ``18 U.S.C. 1468'' the following new line:
``18 U.S.C. 1470 2G3.1''
Issues for Comment: The Commission invites comment on whether it
should include an enhancement in Sec. 2G3.1(b)(1) for distribution of
obscene matter that does not involve distribution for pecuniary gain,
for anything of value, or to a minor. For example, should an
enhancement be provided if an adult gives obscene matter to another
adult and receives, or expects to receive, nothing in return? If so,
what should be the extent of the enhancement?
The Commission invites comment regarding whether the reference in
Sec. 2G3.1(b)(1) to the loss table in the fraud guideline should be
deleted. Currently, the enhancement for distribution at
Sec. 2G3.1(b)(1) requires the court to increase the overall offense
level by the number of offense levels from the fraud loss table
corresponding to the retail value of the material involved in the
offense, but in any event not less than 5 levels. Should the Commission
maintain the minimum 5-level increase for distribution for pecuniary
gain and provide an upward departure for especially large-scale
commercial enterprises?
Part (B): The New Offense of Prohibiting Transmittal of Identifying
Information about a Minor for Criminal Sexual Purposes
Issue for Comment: The Commission invites comment on whether and
how it should amend the guidelines to cover the new offense, at 18
U.S.C. 2425, which prohibits the use of the mail or any facility or
means of interstate commerce to knowingly transmit identifying
information about a minor with the intent to entice, encourage, offer,
or solicit anyone to engage in prohibited sexual activity. Should the
Commission reference the new offense in the Statutory Index to the
guideline covering the promotion of prohibited sexual conduct,
Sec. 2G1.1? Are there other guidelines to which the new offense might
appropriately be referenced? In addition, is there aggravating and/or
mitigating conduct that might be associated with the new offense, and
if so, how should the guidelines take this conduct into account?
Part (C): Clarification of the Term ``Item'' in the Enhancement in
Sec. 2G2.4 for Possession of 10 or More Items of Child Pornography
Synopsis of Proposed Amendment: This amendment proposes to add
commentary language to the guideline covering possession of child
pornography, Sec. 2G2.4, to clarify whether an individual computer file
(as opposed to disk on which it and many other files may be located) is
an ``item'' of child pornography for purposes of the enhancement in
Sec. 2G2.4(b)(2), which provides a 2-level increase if more than 10
items of child pornography are possessed. Four circuits have held that
an individual computer file does qualify as an item for purposes of the
enhancement. An issue for comment follows on how items should be
quantified for purposes of the enhancement.
Proposed Amendment
The Commentary to Sec. 2G2.4 is amended by adding at the end the
following:
``Application Note:
1. A computer file containing a visual depiction involving the
sexual exploitation of a minor shall be considered to be one item for
purposes of subsection (b)(2). Accordingly, if a computer disk
contains, for example, three separate files, each of which contains one
or more such visual depictions, then those files would be counted as
three items for purposes of that subsection.''.
Issue for Comment: The Commission invites comment on how items of
child pornography should be quantified for purposes of the enhancement
in Sec. 2G2.4(b)(2), which provides a 2-level increase if more than 10
items of child pornography are possessed. Should, for example, a book
or computer file containing 300 visual depictions of child pornography
be counted as one item, or as three items, or as some other number of
items?
Part (D): The Directive to Clarify That ``Distribution of Pornography''
Applies to the Distribution of Pornography for Both Monetary
Remuneration and a Non-Pecuniary Interest
Synopsis of Proposed Amendment: This amendment addresses the Act's
directive to clarify that the term ``distribution of pornography''
applies to the distribution of pornography for both pecuniary gain and
any nonpecuniary interest. The amendment modifies the distribution
enhancement in the pornography trafficking guideline, Sec. 2G2.2(b)(2),
to define distribution of child pornography to mean any act, including
production, transportation, and possession with intent to distribute,
related to (i) distribution for pecuniary gain (i.e., for profit); (ii)
distribution for the receipt, or expectation of receipt, of anything of
value, but not for pecuniary gain; and (iii) any knowing distribution
to a minor. An additional 2-level enhancement is proposed if the
offense involved the knowing transfer of child pornography to a minor
in order to entice that minor to engage in prohibited sexual conduct.
An issue for comment is presented regarding whether the
distribution enhancement in Sec. 2G2.2(b)(2) should include
distribution between or among adults that does not involve the receipt,
or expectation of receipt, of anything of value. An issue for comment
is also presented regarding whether to delete the current enhancement's
reference to the loss table in the fraud guideline, whether to maintain
the minimum 5-level increase for distribution for pecuniary gain, and
whether to provide for an upward departure for especially large-scale
commercial enterprises. Currently, the enhancement for distribution at
Sec. 2G2.2(b)(2) requires the court to increase the overall offense
level by the number of offense levels from the fraud loss table
corresponding to the retail value of the material involved in the
offense, but in any event not less than 5 levels.
Proposed Amendment
Section 2G2.2(b) is amended by striking subdivision (2) in its
entirety and inserting the following:
``(2) (Apply the greatest.) If the offense involved:
(A) Distribution for pecuniary gain, increase by the number of
levels from the table in Sec. 2F1.1 corresponding to the retail value
of the material, but in no event by less than 5 levels.
(B) Distribution for the receipt, or expectation of receipt, of a
thing of value, but not for pecuniary gain, increase by [5] levels.
(C) Any distribution to a minor, increase by [5] levels. If the
distribution to a minor was intended to persuade, induce, entice,
coerce, or facilitate the transport of, the minor to engage in
prohibited sexual conduct, increase by an additional [2] levels.''.
The Commentary to Sec. 2G2.2 is amended in Application Note 1 by
striking `` `Distribution' includes'' and
[[Page 7083]]
all that follows through ``intent to distribute.'' and inserting the
following:
`` `Distribution' means any act, including production,
transportation, and possession with intent to distribute, related to
distribution of material involving the sexual exploitation of a minor.
`Distribution for pecuniary gain' means distribution for profit.
`Distribution for the receipt, or expectation of receipt, of a
thing of value, but not for pecuniary gain' means any transaction,
including bartering or other in-kind transaction, that is conducted for
a thing of value, but not for profit. `Thing of value' means anything
of valuable consideration. For example, in a case involving the
bartering of child pornographic material, the `thing of value' is the
child pornographic material received in exchange for other child
pornographic material bartered in consideration for the material
received.
`Distribution to a minor' means the knowing distribution to an
individual who is a minor at the time of the offense, knowing or
believing the individual is a minor at that time.
`Minor' means an individual who has not attained the age of [18]
years.
`Prohibited sexual conduct' means any sexual activity for which a
person can be charged with a criminal offense, including the production
of child pornography, as defined in 18 U.S.C. Sec. 2256(8).''.
Issues for Comment: The Commission invites comment on whether it
should include an enhancement in Sec. 2G2.2(b)(2) for distribution of
child pornographic material that does not involve distribution for
pecuniary gain, for anything of value, or to a minor. For example,
should an enhancement be provided if an adult gives child pornographic
material to another adult and receives, or expects to receive, nothing
in return? If so, what should be the extent of the enhancement?
The Commission also invites comment regarding whether the reference
in Sec. 2G2.2(b)(2) to the loss table in the fraud guideline should be
deleted. Currently, the enhancement for distribution at
Sec. 2G2.2(b)(2) requires the court to increase the overall offense
level by the number of offense levels from the fraud loss table
corresponding to the retail value of the material involved in the
offense, but in any event not less than 5 levels.
Part (E): The Directives To Provide an Enhancement for the Use of a
Computer or the Misrepresentation of the Defendant's Identity
Synopsis of Proposed Amendment: This amendment responds to the
Act's directives to: (i) provide for appropriate enhancement if the
defendant used a computer with the intent to persuade, induce, entice,
coerce, or facilitate the transport of a child to engage in any
prohibited sexual activity; and (ii) provide for appropriate
enhancement if the defendant knowingly misrepresented his/her actual
identity with the intent to persuade, induce, entice, coerce, or
facilitate the transport of a child to engage in any prohibited sexual
conduct.
The amendment proposes to implement these directives by providing a
[2]-level enhancement in the sexual abuse guidelines, Secs. 2A3.1-
2A3.4, and the prostitution and promotion of prohibited sexual conduct
guideline, Sec. 2G1.1, for either the use of a computer, or other
means, to contact the minor electronically or the misrepresentation of
a criminal participant's identity with the intent to persuade, induce,
entice, coerce, or facilitate the transport of a child to engage in any
prohibited sexual conduct. The amendment also contains an option, shown
in brackets, to delete the language in the proposed enhancement
requiring the motive to ``persuade, induce, entice, coerce, or
facilitate the transport of, the minor to engage in prohibited sexual
activity''.
Although the proposed enhancement combines these two factors as
alternative triggers for the enhancement, the Commission could choose
to provide separate, cumulative enhancements for these two types of
offense conduct.
An issue for comment follows regarding whether the Commission
should add an enhancement to the child pornography production and
trafficking guidelines for misrepresentation of the defendant's
identity or the identity of any other participant in the criminal
conduct.
Proposed Amendment
Section 2A3.1(b) is amended by adding at the end the following
subdivision:
``(6) If [, to persuade, induce, entice, coerce, or facilitate the
transport of, a minor to engage in prohibited sexual conduct,] the
offense involved: (A) the use of a computer, or other means, to
communicate with the minor electronically; or (B) the knowing
misrepresentation of a participant's identity, increase by [2]
levels.''.
The Commentary to Sec. 2A3.1 captioned ``Application Notes'' is
amended in Note 1 by adding at the end the following:
`` `Minor' means an individual who has not attained the age of [18]
years.
`Participant' has the meaning given that term in Application Note 1
of the Commentary to Sec. 3B1.1 (Aggravating Role).
`Prohibited sexual conduct' means any sexual activity for which a
person can be charged with a criminal offense, including the production
of child pornography, as defined in 18 U.S.C. Sec. 2256(8).''.
Section 2A3.2(b) is amended by striking ``Characteristic'' and
inserting ``Characteristics'; and by adding at the end the following
subdivision:
``(2) If[, to persuade, induce, entice, coerce, or facilitate the
transport of, a child to engage in prohibited sexual conduct,] the
offense involved: (A) the use of a computer, or other means, to
communicate with the minor electronically, or (B) the knowing
misrepresentation of a participant's identity, increase by [2]
levels.''.
The Commentary to Sec. 2A3.2 captioned ``Application Notes'' is
amended by redesignating Notes 1 through 4 as Notes 2 through 5,
respectively; and by inserting before Note 2, as redesignated by this
Amendment, the following new Note 1:
``1. For purposes of this guideline--
`Minor' means an individual who has not attained the age of [18]
years.
`Participant' has the meaning given that term in Application Note 1
of the Commentary to Sec. 3B1.1 (Aggravating Role).
`Prohibited sexual conduct' has the meaning given that term in
Application Note 1 of the Commentary to Sec. 2A3.1 (Criminal Sexual
Abuse).''.
Section 2A3.3 is amended by inserting after subsection (a) the
following subsection:
``(b) Specific Offense Characteristic
(1) If[, to persuade, induce, entice, coerce, or facilitate the
transport of, a child to engage in prohibited sexual conduct,] the
offense involved: (A) the use of a computer, or other means, to
communicate with the minor electronically; or (B) the knowing
misrepresentation of a participant's identity, increase by [2]
levels.''.
The Commentary to Sec. 2A3.3 captioned ``Application Notes'' is
amended by striking Note 1 in its entirety and inserting the following:
``1. For purposes of this guideline--
`Minor' means an individual who has not attained the age of [18]
years.
`Participant' has the meaning given that term in Application Note 1
of the
[[Page 7084]]
Commentary to Sec. 3B1.1 (Aggravating Role).
`Prohibited sexual conduct' has the meaning given that term in
Sec. 2A3.1 (Criminal Sexual Abuse).
`Ward' means a person in official detention under the custodial,
supervisory, or disciplinary authority of the defendant.''.
Section 2A3.4(b) is amended by adding at the end the following
subdivision:
``(4) If[, to persuade, induce, entice, coerce, or facilitate the
transport of, a child to engage in prohibited sexual conduct,] the
offense involved (A) the use of a computer, or other means, to
communicate with the minor electronically; or (B) the knowing
misrepresentation of a participant's identity, increase by [2]
levels.''.
The Commentary to Sec. 2A3.4 captioned ``Application Notes'' is
amended by redesignating Notes 1 through 5 as Notes 2 through 6,
respectively, and inserting before Note 2, as redesignated by this
amendment the following as the new Note 1:
``1. For purposes of this guideline--
`Minor' means an individual who has not attained the age of [18]
years.
`Participant' has the meaning given that term in Application Note 1
of the Commentary to Sec. 3B1.1 (Aggravating Role).
`Prohibited sexual conduct' has the meaning given that term in
Application Note 1 of the Commentary to Sec. 2A3.1 (Criminal Sexual
Abuse).''.
Section 2G1.1(b) is amended by adding at the end the following
subdivision:
``(4) If [, to persuade, induce, entice, coerce, or facilitate the
transport of, a child to engage in prohibited sexual conduct,] the
offense involved (A) the use of a computer, or other means, to
communicate with the minor electronically; or (B) the knowing
misrepresentation of a participant's identity, increase by [2]
levels.''.
The Commentary to Sec. 2G1.1 captioned ``Application Notes'' is
amended in Note 1 by inserting after ``For purposes of this guideline--
'' the following:
`` `Minor' means an individual who has not attained the age of [18]
years.
`Participant' has the meaning given that term in Application Note 1
of the Commentary to Sec. 3B1.1 (Aggravating Role).
`Prohibited sexual conduct' has the meaning given that term in
Application Note 1 of the Commentary to Sec. 2A3.1 (Criminal Sexual
Abuse).''.
Issue for Comment: The Commission invites comment regarding whether
the enhancement for use of a computer in subsection (b)(3) of the child
pornography production guideline, Sec. 2G2.1 (Sexually Exploiting a
Minor by Production of Sexually Explicit Visual or Printed Material),
should be modified to cover, in addition to the use of a computer, the
misrepresentation of a criminal participant's identity to solicit a
minor's participation in sexually explicit conduct to produce sexually
explicit material. In addition, the Commission invites comment on
whether the guideline covering trafficking child pornography,
Sec. 2G2.2 (Trafficking in Material Involving the Sexual Exploitation
of a Minor) should also contain an enhancement for misrepresentation of
a criminal participant's identity.
The Commission also invites comment regarding the appropriate scope
of any enhancement for the use of a computer, or other means, to
communicate electronically with a minor. Specifically, the Commission
invites comment regarding whether the enhancement should incorporate
the definitions of ``electronic communication'' and/or ``wire
communication'' as those terms are defined in 18 U.S.C. 2510(12) and
(1), respectively.
Parts (F) and (G): Issues for Comment on the Directives To Provide an
Enhancement for Chapter 117 Offenses and for Sex Offenses Involving a
Pattern of Activity
Due to the complexity of the issues involved in implementing the
directives described in the following issues for comment, the
Commission may not be able to complete all work necessary to promulgate
amendments on these issues in this amendment cycle ending May 1, 2000.
Recognizing the importance of responding to these directives as soon as
possible but also acknowledging the possibility that the Commission may
not promulgate amendments on these issues until the next amendment
cycle, the Commission invites the public to comment on the following
additional issues.
Part (F): Enhancement for Chapter 117 Offenses
Issues for Comment:
(1) The Protection of Children from Sexual Predators Act of 1998
directed the Commission to ``provide a sentencing enhancement for
offenses under Chapter 117 of Title 18 (relating to the transportation
of minors for illegal sexual activity) while ensuring that the
sentences, guidelines, and policy statements for offenders convicted of
such offenses are appropriately severe and reasonably consistent with
the other relevant directives and the relevant existing guidelines.''
The Commission invites comment on how to most appropriately implement
this directive.
(2) Specifically, the Commission invites comment on whether, and to
what extent, it should amend Sec. 2G1.1 (Promoting Prostitution or
Prohibited Sexual Conduct) and the guidelines covering sexual abuse,
Secs. 2A3.1 (Criminal Sexual Abuse), 2A3.2 (Criminal Sexual Abuse of a
Minor (Statutory Rape)), 2A3.3 (Criminal Sexual Abuse of a Ward), and
2A3.4 (Abusive Sexual Contact), to provide an enhancement if the
offense involved the transportation, persuasion, inducement,
enticement, or coercion of a child to engage in prohibited sexual
conduct. Do enhancements proposed to be added for use of a computer, or
other means, to communicate with the minor electronically and/or
misrepresentation of a criminal participant's identity sufficiently
provide an appropriate enhancement, or is an additional enhancement for
other aggravating conduct needed?
(3) The Act also increased statutory penalties, from a maximum term
of imprisonment of 10 years to a maximum term of imprisonment of 15
years, for offenses under 18 U.S.C. 2423(a), relating to the
transportation of a minor with the intent to engage in illegal sexual
activity, and Sec. 2423(b), relating to travel with intent to engage in
a sexual act with a juvenile. Convictions under 18 U.S.C. 2423(a) are
currently referenced in the Statutory Index to Sec. 2G1.1 (Promoting
Prostitution or Prohibited Sexual Conduct). Convictions under 18 U.S.C.
2423(b) are currently referenced in the Statutory Index to Secs. 2A3.1
(Criminal Sexual Abuse), 2A3.2 (Criminal Sexual Abuse of a Minor
(Statutory Rape)), and 2A3.3 (Criminal Sexual Abuse of a Ward). A
concern raised by Congress and prosecutors is that sentences under
Sec. 2A3.2 do not necessarily reflect the seriousness of the conduct
involved and the harm done to minor victims. Although that guideline
was originally intended to cover defendants who engage in consensual
sex with an underage partner, it is increasingly being used to cover
offenses involving more serious conduct, such as those involving force,
violent threats, or incapacitating intoxicants.
In light of these concerns and the increased statutory penalties,
the Commission invites comment on whether it should amend the base
offense level in Sec. 2G1.1 and/or Secs. 2A3.1, 2A3.2, 2A3.3, and/or
2A3.4, to provide for an increase of 2 or 4 levels and/or provide an
enhancement of 2 or 4 levels
[[Page 7085]]
if the offense involved conduct punishable under 18 U.S.C. 2423. Many
of the cases prosecuted under 18 U.S.C. 2423 are sentenced under
Sec. 2A3.2, either directly or as a result of a cross reference to that
guideline in Sec. 2G1.1. In addition, the Commission invites comment on
whether it should amend the Statutory Index (Appendix A) to reference
18 U.S.C. 2423(a) and (b) offenses to Sec. 2A3.4 (Abusive Sexual
Contact) in addition to the other guidelines currently referenced for
those offenses in the Statutory Index. Alternatively, should offenses
for 18 U.S.C. 2423(a) and (b) both be referenced to Sec. 2G1.1
(Promoting Prostitution and Prohibited Sexual Conduct)?
(4) The Commission invites comment on whether it should provide an
enhancement in Sec. 2A3.2 based on the intimidation or mental coercion
of the minor victim by the defendant (or another criminally responsible
participant) and/or for cases in which the minor victim's ability to
truly consent was affected. The Commission also invites comment on
whether it should add an enhancement of 2 or 4 levels or provide for an
invited upward departure in Sec. 2A3.2, if the defendant is more than
10 years older than the minor victim, or if the offense involved
incest.
(5) The Commission also invites comment on whether it should
reconsider the manner in which the guidelines currently cover offenses
under Chapter 117 of Title 18 (relating to transportation of minors for
illegal sexual activity). Specifically, should those offenses continue
to be referenced in the Statutory Index to Sec. 2G1.1 with cross
references provided in that guideline for cases more appropriately
sentenced under Sec. 2G2.1, the guideline covering production of child
pornography, Sec. 2A3.1, the guideline covering criminal sexual abuse,
or Secs. 2A3.2-2A3.4, the guidelines covering any other prohibited
sexual conduct? Should the commentary in Sec. 2G1.1 be amended to
clarify how to determine the offense level for cases involving
persuasion, inducement, enticement, coercion, and/or transportation of
a minor for prohibited sexual conduct that are unaccompanied by
underlying prohibited sexual conduct, as well as for cases that are
accompanied by such conduct?
Part (G): Sex Offenses Involving a Pattern of Activity
Issues for Comment:
The Protection of Children from Sexual Predators Act of 1998
directed the Commission to provide an enhancement in any case in which
the defendant engaged in a pattern of activity involving the sexual
abuse or exploitation of a minor. The Commission invites comment on how
to most appropriately implement this directive. Specifically, the
Commission invites comment on the following issues:
(1) Should the Commission implement the directive through an upward
departure provision for a ``pattern of activity''? Specifically, should
the Commission expand the kind of prior sexual offenses that would
warrant application of the encouraged upward departure currently found
in the guidelines covering sexual abuse, Secs. 2A3.1 (Criminal Sexual
Abuse), 2A3.2 (Criminal Sexual Abuse of a Minor (Statutory Rape)),
2A3.3 (Criminal Sexual Abuse of a Ward), and 2A3.4 (Abusive Sexual
Contact)? The Commission could, for example, expand that definition to
conform it to the statutory definition of ``prior sexual offense
conviction'' found at 18 U.S.C. 2247. Currently, the upward departure
provision permits consideration only of multiple acts that were prior
convictions similar to the instant offense. Use of the statutory
definition would allow consideration of prior convictions for offenses
under Chapter 117 of Title 18 (relating to transportation for illegal
sexual activity), Chapter 109A of that title (relating to sexual
abuse), Chapter 110 of that title (relating to sexual exploitation of
children), and under State law for offenses that would be punishable
under those chapters if they had been within the Federal jurisdiction.
If the Commission were to expand the upward departure provision,
should it include past conduct of the defendant that did not result in
a conviction? Should the Commission include an expanded upward
departure provision in Sec. 2G1.1 (Promoting Prostitution or Prohibited
Sexual Conduct)?
(2) Should the Commission implement the directive by amending
Sec. 2G1.1, the guidelines covering sexual abuse, Secs. 2A3.1-2A2.4, or
any other guidelines, to provide an enhancement for ``pattern of
activity'' similar to, or the same as, the 5-level ``pattern of
activity'' enhancement currently found in Sec. 2G2.2, the guideline
covering trafficking in child pornography? If the Commission were to
adopt such an approach, should the enhancement be the same as, or
different from, the enhancement found in Sec. 2G2.2? For example,
should the ``pattern of activity'' enhancement include activity under
chapter 117 of title 18 (relating to the transportation of minors for
illegal sexual activity) in addition to conduct involving sexual abuse
and sexual exploitation? What would be the appropriate extent of the
enhancement?
(3) Should the Commission implement the directive by creating a new
guideline in Chapter Four (Criminal History) for sexual offenders,
similar to Sec. 4B1.3 (Criminal Livelihood), which provides a minimum
offense level for defendants who commit the offense as part of a
pattern of criminal conduct engaged in as a livelihood? Creation of a
guideline in Chapter Four would make the new provision applicable to
all defendants sentenced under the guidelines, not just to defendants
convicted of offenses relating to sexual abuse, sexual exploitation, or
transportation for illegal sexual activity.
(4) Regardless of the approach adopted by the Commission (i.e.,
regardless of whether the Commission adopts an upward departure
provision, an enhancement, or a provision in Chapter Four), should
multiple acts of sexual misconduct that are considered for a ``pattern
of activity'' relate to the offense of conviction and the relevant
conduct involved in the offense? Should it include acts that formed the
basis for prior convictions? Alternatively, should it include other
conduct not directly related to the offense of conviction or to the
relevant conduct involved in the offense, and should it include conduct
that did not form the basis of a prior conviction?
(5) What types of conduct (e.g., rape, production of child
pornography, enticing minors to engage in prohibited sexual conduct)
should be covered by a ``pattern of activity'? Should trafficking in
child pornography be covered in light of the revised statutory
definition of ``prior sexual offense conviction'' found at 18 U.S.C.
2247?
(6) Should ``pattern of activity'' cover only certain types of
offenders (e.g., pedophiles who are at a high risk of recidivism)? How
should offenders who engage in incest be treated under the enhancement?
Proposed Amendment: Implementation of the Wireless Telephone
Protection Act
(3) Synopsis of Proposed Amendment: In the Wireless Telephone
Protection Act, Pub. L. 105-172, Congress directed the Commission to
review and amend the sentencing guidelines, if appropriate, to provide
an appropriate penalty for offenses involving the cloning of a wireless
telephone (including offenses involving the attempt or conspiracy to
clone a
[[Page 7086]]
wireless telephone). The Commission was instructed to consider eight
specific factors: (A) the range of conduct covered by the offenses; (B)
the existing sentences for the offense; (C) the extent to which the
value of the loss caused by the offenses (as defined in the federal
sentencing guidelines) is an adequate measure for establishing
penalties under the federal sentencing guidelines; (D) the extent to
which sentencing enhancements within the federal sentencing guidelines
and the court's authority to sentence above the applicable guideline
range are adequate to ensure punishment at or near the maximum penalty
for the most egregious conduct covered by the offenses; (E) the extent
to which the federal sentencing guideline sentences for the offenses
have been constrained by statutory maximum penalties; (F) the extent to
which federal sentencing guidelines for the offense(s) adequately
achieve the purposes of sentencing set forth in 18 U.S.C. 3553(a)(2);
(G) the relationship of the federal sentencing guidelines for these
offenses to offenses of comparable seriousness; and (H) any other
factor the Commission considers to be appropriate.
This proposal presents two amendment options to implement the
directive as well as issues for comment related to: (A) the use of a
cloned wireless telephone in connection with other criminal activity,
and (B) how to address the apparent disparate ways in which loss is
determined in cloning offenses.
Option 1 provides an enhancement for possession of cloning
equipment and for manufacturing and distributing cloned telephones. The
amendment proposes a two-prong enhancement with a sentencing increase
of [two] levels. The first prong tracks the relevant statute, 18 U.S.C.
1029(a)(9), by explicitly covering the use or possession of any
``cloning equipment,'' which is defined to include the hardware or
software described in the statute. The definition also includes any
mechanism or equipment that can be used to clone a wireless telephone.
The definition additionally includes a scanning device [if the device
was used with the intent to defraud]. The second prong specifically
covers manufacture and distribution of a cloned telecommunications
instrument. The definition of a cloned telephone also tracks the
language of the statute.
Option 2 also proposes a two-prong enhancement with an increase of
[two] levels and applies the enhancement to all access devices. The
first prong covers possession or use of equipment that is used to
manufacture access devices. (The ESN/MIN of a wireless telephone is a
type of access device under the statute.) Specifically, this prong
provides a [two] level enhancement if the offense involves the use or
possession of any ``device-making equipment.'' It broadens the
statutory definition of device-making equipment (found in 18 U.S.C.
1029(e)(6)) to include not only equipment that can be used to make an
access device, but also the cloning hardware or software described in
Sec. 1029(a)(9). Consistent with the statute, the definition also
includes a scanning device [if the device was used with the intent to
defraud].
The second prong covers distribution of any counterfeit access
device, as that term is defined in 18 U.S.C. 1029(e)(2), and includes
the distribution of any cloned wireless telephone.
Proposed Amendment
Option 1
Section 2F1.1(b) is amended by redesignating subdivisions (4)
through (7) as subdivisions (5) through (8), respectively; and by
inserting after subdivision (3) the following new subdivision (4):
``(4) If the offense involved (A) the use or possession of any
cloning equipment; or (B) the manufacture or distribution of a cloned
telecommunications instrument, increase by [2] levels.''.
The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is
amended by adding at the end the following:
``21. For purposes of subsection (b)(4)--
`Cloning equipment' means any hardware, software, mechanism, or
equipment that has been, or can be, configured to insert or modify any
telecommunication identifying information associated with, or contained
in, a telecommunications instrument so that such telecommunications
instrument may be used to obtain telecommunications service without
authorization. A scanning receiver is cloning equipment [if it was used
or possessed with the intent to defraud]. `Scanning receiver,'
`telecommunications service,' and `telecommunication identifying
information' have the meaning given those terms in 18 U.S.C.
1029(e)(8), (e)(9), and (e)(11), respectively.
`Cloned telecommunications instrument' means a telecommunications
instrument that has been unlawfully modified, or into which
telecommunications identifying information has been unlawfully
inserted, to obtain telecommunications service without
authorization.''.
The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is
amended in Note 1 by striking ``(b)(4)'' and inserting ``(b)(5)''; in
Note 5 by striking ``(b)(4)'' and inserting ``(b)(5)''; and in Note 6
by striking ``(b)(4)'' and inserting ``(b)(5)''.
The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is
amended in Note 15 by striking ``(b)(5)'' each place it appears and
inserting ``(b)(6)''.
The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is
amended in Notes 18 and 20 by striking ``(b)(7)'' and inserting
``(b)(8)''.
The Commentary to Sec. 2F1.1 captioned ``Background'' is amended in
the sixth paragraph by striking ``(b)(5)'' and inserting ``(b)(6)''; in
the seventh paragraph by striking ``(b)(6)'' and inserting ``(b)(7)'';
and in the eighth and ninth paragraphs by striking ``(b)(7)'' each
place it appears and inserting ``(b)(8)''.
The Commentary to Sec. 2F1.1 captioned ``Background'' is amended by
inserting after the fifth paragraph the following:
``Subsection (b)(4) implements the instruction to the Commission in
section 2(e) of Public Law 105-172.''.
Option 2
Section 2F1.1(b) is amended by redesignating subdivisions (4)
through (7) as subdivisions (5) through (8), respectively; and by
inserting after subdivision (3) the following new subdivision (4):
``(4) If the offense involved (A) the possession or use of any
device-making equipment; or (B) the distribution of any counterfeit
access device, increase by [2] levels.''.
The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is
amended by adding at the end the following additional note:
``21. For purposes of subsection (b)(4)--
`Device-making equipment' has the meaning given that term in 18
U.S.C. 1029(e)(6) and also includes: (A) any hardware or software that
can insert or modify telecommunication identifying information
associated with or contained in a telecommunications instrument so that
such telecommunications instrument may be used to obtain
telecommunications service without authorization; or (B) a scanning
device [if it was used or possessed with the intent to defraud].
`Scanning device,' and `telecommunication identifying information' have
the meaning given those terms in 18 U.S.C. 1029(e)(8) and (e)(11),
respectively.
`Counterfeit access device,' has the meaning given that term in 18
U.S.C. 1029(e)(2) and includes a cloned telecommunications instrument.
`Cloned telecommunications
[[Page 7087]]
instrument' means a telecommunications instrument that has been
unlawfully modified, or into which telecommunications identifying
information has been unlawfully inserted, to obtain telecommunications
service without authorization.''.
The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is
amended in Note 1 by striking ``(b)(4)'' and inserting ``(b)(5)''; in
Note 5 by striking ``(b)(4)'' and inserting ``(b)(5)''; and in Note 6
by striking ``(b)(4)'' and inserting ``(b)(5)''.
The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is
amended in Note 15 by striking ``(b)(5)'' each place it appears and
inserting ``(b)(6)''.
The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is
amended in Notes 18 and 20 by striking ``(b)(7)'' and inserting
``(b)(8)''.
The Commentary to Sec. 2F1.1 captioned ``Background'' is amended in
the sixth paragraph by striking ``(b)(5)'' and inserting ``(b)(6)''; in
the seventh paragraph by striking ``(b)(6)'' and inserting ``(b)(7)'';
and in the eighth and ninth paragraphs by striking ``(b)(7)'' each
place it appears and inserting ``(b)(8)''.
The Commentary to Sec. 2F1.1 captioned ``Background'' is amended by
inserting after the fifth paragraph the following:
``Subsection (b)(4) implements the instruction to the Commission in
section 2(e) of Public Law 105-172.''.
Issues for Comment
(1) Option 1 provides a two-pronged enhancement in the fraud
guideline, Sec. 2F1.1. The first prong covers the use or possession of
any ``cloning equipment'' (including the hardware or software described
in 18 U.S.C. 1029(a)(9), any other mechanism or equipment that can be
used to clone a wireless telephone, and a scanning device [if the
device was used with the intent to defraud]).
As an alternative to providing this enhancement in the form of a
specific offense characteristic whose applicability would have to be
(at least potentially) considered in every case sentenced under this
guideline (i.e., over 6,000 cases in FY 1998), the Commission invites
comments on whether the loss commentary could be amended to provide a
presumptive loss amount or a loss amount increase if the specified
conduct is proven. More specifically, the commentary could provide that
if the conduct involved ``cloning equipment,'' the loss would be not
less than a presumptive amount, or that loss will be not less than the
presumptive amount plus any loss otherwise determined.
The use of a presumptive loss amount might guarantee a floor
offense level if the conduct occurs, even if a specific offense
characteristic for that conduct is not added to the guideline. On the
other hand, a presumptive loss amount increase could accomplish the
same effect as a floor but would have the added advantage of providing
some increment over and above the ``floor'' offense level in some
cases. However, because of the way the loss table increases the offense
level based on increases in loss amount, a presumptive loss increase
would not guarantee a set increase in offense level across the full
range of loss amounts.
The Commission invites comment on whether the use of a presumptive
loss amount or a presumptive loss increase is preferable to the
specific offense characteristics proposed in Option One. If so, what
conduct should trigger the provision? Of the presumptive loss amount or
the loss increase, which is more appropriate? What is the appropriate
dollar amount for the presumptive loss provision?
(2) The second prong of the proposed enhancement in Option 1 covers
the manufacture and distribution of a cloned telecommunications
instrument. The Commission invites comment on whether the provision
should apply to all telecommunications instruments, or whether it
should be limited more closely to the provisions of the Wireless
Telephone Protection Act and apply only if the applicable offense
conduct actually involves cloned wireless telephones.
In addition, the Commission invites comment regarding whether the
second prong of the enhancement in Option 1 (relating to manufacturing
cloned telecommunications instruments) should be limited to situations
that involved manufacturing or distributing cloned telephones. This
limitation might be justified because of the potential overlap between
the first prong of the enhancement (relating to the use or possession
of cloning equipment) and the broader version of the second prong.
(3) Option 2 covers possession or use of equipment that is used to
manufacture access devices. (For example, the mobile identification
number/electronic serial number (``MIN/ESN'') of a wireless telephone
is a type of access device under 18 U.S.C. 1029). This proposal
provides a [two] level enhancement if the offense involves the use or
possession of any ``device-making equipment,'' broadening the statutory
definition of device making equipment (found in 18 U.S.C. 1029(e)(6))
to include not only equipment that can be used to make an access
device, but also the cloning hardware or software described in 18
U.S.C. 1029(a)(9). Consistent with the statute, the definition also
includes a scanning device [if the device was used with the intent to
defraud].
The Commission invites comment regarding whether the proposed
enhancement should apply to all access devices or to only certain types
of access devices.
(4) The Commission invites comment, generally, regarding whether
the use of a cloned wireless telephone in connection with other
criminal activity should warrant more serious punishment than the
commission of the same offense without the involvement of a cloned
telephone. The Commission also invites comment regarding whether the
possession of a cloned wireless phone should warrant more serious
punishment.
If so, the Commission invites comment regarding whether an
adjustment should be added to Chapter Three that would apply to the use
of a cloned wireless telephone in connection with any other offense or
to the possession of a cloned wireless telephone. If so, what should
the magnitude of the increase for such an adjustment be (e.g., two or
four levels)? Alternatively, should a specific offense characteristic
be added to one or more Chapter Two guidelines (such as Sec. 2D1.1 or
Sec. 2F1.1)? If so, which guidelines should be amended to include the
enhancement? What should the magnitude of the enhancement be (e.g., two
or four levels)? If such an amendment were made, how should it affect
the proposed enhancement of [two] levels for manufacturing or
distribution of cloned wireless telephones in Option One, or for
manufacturing or distribution of counterfeit access devices in Option
Two?
The Commission also invites comment regarding whether a cross
reference should be added to Sec. 2F1.1 (and/or other relevant
guidelines) that would sentence the defendant convicted of an offense
involving the use or transfer of a cloned wireless telephone at the
level for the offense for which the telephone was used. Such a cross
reference would create the possibility that a defendant could be
convicted of a less serious offense (such as an offense involving a
cloned telephone that caused a small loss) but have the sentence
increased to the level based on the more serious conduct that was
implicated by the telephone use (such as drug trafficking) proven by a
preponderance of the evidence. This
[[Page 7088]]
option could be implemented on its own, or in combination with some
other provision.
(5) The Commission also invites comment regarding: (A) whether
language should be added to the definition of loss in the commentary to
Sec. 2F1.1 to make clear that unused ESN/MIN pairs (or any or all
access devices) are to be considered in determining intended loss; (B)
whether a minimum or presumptive value should be established for each
ESN/MIN pair or cloned wireless telephone (or any or all access
devices) and, if so, (i) which should be established (a minimum or
presumptive value), and (ii) what should the minimum or presumptive
value be (e.g., [$500, $750, $1,000]) (and whether it should vary
depending on the type of access device); and (C) whether the definition
of loss should provide more specific guidance (and, if so, what
guidance) as to how to determine intended loss in cases involving
access devices, in general, and ESN/MIN pairs, in particular. For
example, guidance could be provided that when a case involves one or
more used ESN/MIN pairs (or access devices) and one or more unused
pairs, the losses incurred in connection with the former should be used
to determine an average loss per pair; that average loss amount could
be multiplied by the number of used and unused pairs to determine the
intended loss.
(6) The Commission invites comment on whether any action the
Commission might take to implement the directive in the Wireless
Telephone Protection Act (such as adopting either of the options
described herein) should be coordinated and/or consolidated with action
the Commission might take to implement the directive in the Identity
Theft and Assumption Deterrence Act (such as adopting either of the
options described in the proposed amendment for identity theft which
can be found in 65 FR 2265 (January 18, 2000)). Specifically, the
Commission invites comment on the potential interactions and/or overlap
between the proposed options on identity theft and on telephone
cloning. For example, to the extent that an unauthorized identification
means can be a counterfeit access device, application of the
enhancement proposed in Option 2 and an identity theft enhancement may,
in some situations, be double-counting the same conduct. Such double-
counting potentially might occur in the case of a defendant who uses
device making equipment to make a credit card (an unauthorized
identification means) in the name of an individual victim.
Note that there is an issue for comment in the published materials
regarding possible amendments in response to the Identity Theft and
Assumption Deterrence Act, regarding the possible promulgation of an
amendment that would broaden the current rule in the commentary to
Sec. 2B1.1 regarding the minimum loss rule for credit cards ($100 each)
to access devices, generally, and increase the minimum loss amount to
$1,000 for each access device. See 65 FR 2668 (January 18, 2000).
Proposed Amendment: Firearms
(4) Synopsis of Proposed Amendment: Public Law 105-386 amended 18
U.S.C. 924(c) to: (A) add ``possession in furtherance of the crime'' to
the list of acts for which a defendant can be convicted under the
statute; (B) replace fixed terms of imprisonment (e.g., 5 years) with
mandatory minimum terms of imprisonment (e.g., not less than 5 years);
(C) provide tiered sanctions depending on how the firearm was used
(e.g., brandished or discharged); and (D) provide a statutory
definition of ``brandish.''
The principal parts of this proposed amendment are as follows:
(A) It amends Sec. 1B1.1 (Application Instructions) to provide the
definition of ``brandish'' used in 18 U.S.C. 924(c). There are two
major differences between the statutory definition and the guideline
definition of ``brandish.'' First, the statutory definition does not
require that the firearm be displayed, or even visible, while the
current guideline definition does. Second, the statutory definition
requires that a firearm actually be present, while the guideline
definition, which applies to any dangerous weapon, applies to toys and
fakes (because the definition of ``dangerous weapon'' includes such
items). The amendment proposes to apply the definition to any dangerous
weapon.
(B) In response to the statutory change from fixed terms of
imprisonment to mandatory minimum terms, the proposal amends Sec. 2K2.4
to clarify that the ``term required by statute,'' with respect to 18
U.S.C. 844(h), 924(c), and 929(a), is the minimum term specified by the
statute. The proposed amendment also provides for an encouraged upward
departure if the minimum term does not adequately address the
seriousness of the offense. Examples of when a departure may be
warranted are provided.
There is also an issue for comment regarding whether the Commission
should provide a cross-reference to the guideline for the underlying
offense when there is no conviction for that underlying offense and the
offense level for that underlying offense is greater than the minimum
term required by statute.
(C) It resolves a circuit conflict regarding whether, when a
defendant is convicted of both section 924(c) and the underlying
offense, the court can apply a weapon enhancement when imposing the
sentence for the underlying offense. Specifically, the proposal amends
Application Note 2 of Sec. 2K2.4 to clarify that, with respect to the
guideline for the underlying offense, ``the underlying offense''
includes both the offense of conviction and any relevant conduct for
which the defendant is accountable under Sec. 1B1.3. Accordingly, the
amended Note instructs the court not to apply any specific offense
characteristic for possession, brandishing, use, or discharge of an
explosive or firearm with respect to the guideline for the underlying
offense. The proposed amendment also provides examples of when this
rule would (and would not) apply.
The legislation also specifically added brandishing to the conduct
covered by 18 U.S.C. 924(c). This proposed amendment provides a
conforming amendment to Application Notes 2 and 4 and the Background
Commentary of Sec. 2K2.4 to add brandishing to the list of specific
offense characteristics that are not applied with respect to the
sentencing for the underlying offense.
(D) It amends Sec. 4B1.2 to clarify that a section 924 count is not
considered an ``instant offense'' for purposes of the career offender
guideline. It also clarifies, in Sec. 2K2.4, that because the sentence
in this guideline is determined by the relevant statute and imposed
independently, Chapters Three and Four do not apply.
(E) It provides an issue for comment regarding whether the
Commission should consider including a section 924(c) count as an
instant offense of conviction for purposes of the career offender
guideline.
(F) It makes minor technical and conforming amendments to
Secs. 3D1.1 and 5G1.2 to conform these guidelines to the new mandatory
minimum provisions of 18 U.S.C. 924(c).
Proposed Amendment
The Commentary to Sec. 1B1.1 captioned ``Application Notes'' is
amended in Note 1(c) by striking ``that the weapon was pointed or waved
about, or displayed in a threatening manner'' and inserting ``that all
or part of the weapon was displayed, or the presence of the weapon was
otherwise made known to another person, in order to intimidate
[[Page 7089]]
that person, regardless of whether the weapon was directly visible to
that person''.
Section 2K2.4(a) is amended by striking ``that'' and inserting
``the minimum term''.
The Commentary to Sec. 2K2.4 captioned ``Application Notes'' is
amended in Note 1 by adding at the end the following paragraphs:
``Sections 924(c) and 929(a) have a statutory maximum of life
imprisonment. Accordingly, the court has the authority to impose a
sentence above the minimum term specified if the minimum term does not
adequately capture the seriousness of the offense. For example, an
upward departure may be warranted if (A) the guideline for the
underlying offense does not account for an aggravating factor; or (B)
the defendant was not convicted of the underlying offense. Examples of
factors that may warrant an upward departure include the following:
(A) the offense involved multiple firearms;
(B) the offense involved a stolen firearm or a firearm with an
obliterated serial number;
(C) the offense involved serious bodily injury;
(D) the defendant is a prohibited person at the time of the
offense. `Prohibited person' has the same meaning given that term in
Sec. 2K2.1, Application Note 6.
(E) the seriousness of the defendant's criminal history is not
adequately considered because the defendant was not convicted of the
underlying offense.
Do not apply Chapter Three (Adjustments) and Chapter Four (Criminal
History and Criminal Livelihood) to any offense sentenced under this
guideline. Such offenses are excluded from application of these
chapters because the sentence for each offense is determined by the
statute and is imposed independently. See Secs. 3D1.1, 5G1.2.''.
The Commentary to Sec. 2K2.4 captioned ``Application Notes'' is
amended in Note 2 by striking the first paragraph in its entirety and
inserting the following:
``If a defendant is convicted of an underlying offense in
conjunction with any of the statutes covered by this guideline, do not
apply any specific offense characteristic for possession, brandishing,
use, or discharge of an explosive or firearm with respect to the
guideline for the underlying offense. A sentence under Sec. 2K2.4
covers any explosive or weapon enhancement both for the underlying
offense of conviction and for any other conduct for which the defendant
may be accountable under Sec. 1B1.3 (Relevant Conduct). For example, if
(A) a co-defendant, as part of the jointly undertaken criminal
activity, possessed a different firearm from the one for which the
defendant was convicted under section 924(c), do not apply any weapon
enhancement in the guideline for the underlying offense; (B) in an
ongoing drug trafficking offense, the defendant possessed firearms
other than the one for which the defendant was convicted under section
924(c), do not apply any weapon enhancement in the guideline for the
underlying offense. However, if a defendant is convicted of two bank
robberies involving weapons, but is convicted of a section 924(c)
offense in connection with only one of the robberies, a weapon
enhancement would apply to the bank robbery which was not the basis for
the section 924(c) offense.''.
The Commentary to Sec. 2K2.4 captioned ``Application Notes'' is
amended in Note 4 in the third sentence by inserting ``brandishing,''
after ``possession,''
The Commentary to Sec. 2K2.4 captioned ``Background'' is amended by
striking ``18 U.S.C. Secs. '' and inserting ``Sections'' by inserting
``of title 18, United States Code,'' following ``929(a)'' by striking
``penalties for the conduct proscribed.'' and inserting ``terms of
imprisonment. A sentence imposed pursuant to any of these statutes must
be imposed to run consecutively to any other term of imprisonment.''
and by inserting ``brandishing,'' after ``use,''.
The Commentary to Sec. 4B1.2 captioned ``Application Notes'' is
amended in Note 1 by striking the eighth paragraph in its entirety and
inserting:
``A prior conviction under 18 U.S.C. 924(c) is a ``prior felony
conviction'' for purposes of applying Sec. 4B1.1 (Career Offender) if
the prior offense of conviction established that the underlying offense
was a ``crime of violence'' or ``controlled substance offense.'' (Note
that if the defendant also was convicted of the underlying offense, the
two convictions will be treated as related cases under Sec. 4A1.2
(Definitions and Instruction for Computing Criminal History)).''.
The Commentary to Sec. 4B1.2 captioned ``Application Notes is
amended by redesignating Notes 2 and 3 as Notes 3 and 4, respectively,
and by inserting before Note 3, as redesignated by this Amendment, the
following new Note 2:
``2. Pursuant to Secs. 2K2.4, 3D1.1, and 5G1.2(a), a sentence for a
conviction under 18 U.S.C. 924(c) is determined by the statute and is
imposed independently of any other sentence. Accordingly, if the
instant offense of conviction is a conviction under 18 U.S.C. 924(c),
or if the instant offense of conviction includes convictions for both
Sec. 924(c) and the underlying offense, Sec. 4B1.1 does not apply to
the Sec. 924(c) count.''.
The Commentary to Sec. 3D1.1 captioned ``Application Notes'' is
amended in Note 1 by inserting ``minimum'' after ``mandatory'' each
place it appears.
The Commentary to Sec. 5G1.2 is amended in the fourth paragraph, by
striking the second sentence in its entirety and inserting:
See, e.g., 18 U.S.C. 924(c) (specifying mandatory minimum terms of
imprisonment, based on the conduct involved, to run consecutively to
any other term of imprisonment).''.
Issues for Comment
(1) Several guidelines provide an enhancement that applies ``if the
firearm was brandished, displayed or possessed.'' See, e.g., Sec. 2B3.1
(Robbery); Sec. 2B3.2 (Extortion by Force or Threat of Injury or
Serious Damage). Given that the proposed amendment defines
``brandished'' to mean, in part, that ``all or part of the weapon was
displayed,'' the Commission invites comment regarding whether, if the
Commission adopts this amendment, it should make a conforming amendment
to delete ``displayed'' from this enhancement as unnecessary.
(2) The Commission invites comment regarding whether it should
amend Sec. 2K2.4 to provide a cross reference to the guideline for the
underlying offense when the defendant was not convicted of the
underlying offense in either state or federal court and the offense
level for the underlying offense is greater than the sentence provided
in Sec. 2K2.4 (i.e., the minimum term required by statute)? Such
amendment would also specify that the cross reference does not apply
when the defendant has been convicted of the underlying offense.
(3) The proposed amendment clarifies that under current guideline
application: (A) Chapters Three and Four do not apply to any sentence
imposed under Sec. 2K2.4 because the sentence is determined by the
relevant statute (18 U.S.C. 844(h), 924(c), or 929(a)) and is imposed
independently; and (B) because Chapter Four does not apply, the career
offender guideline, Sec. 4B1.1, does not apply when the instant offense
of conviction is a section 924(c) offense. Notwithstanding current
guideline application, the Commission invites comment on whether it
should amend the guidelines to provide that a conviction under 18
U.S.C. 924(c) is an instant offense for career offender purposes.
If the Commission should make such an amendment, how should it be
[[Page 7090]]
accomplished? The Commission could, for example, develop a new
guideline for 18 U.S.C. 924(c) offenses (and similar offenses) which
would eliminate the current requirement that the sentence on a section
924(c) count be imposed independently and that the count be excluded
from the grouping rules. See Sec. 3D1.1. If a new guideline were
developed, what should the Commission consider with respect to specific
offense characteristics, cross reference provisions, and departure
provisions? As an alternative to a new guideline, the Commission could
provide a ``special rule'' that would apply whenever a section 924(c)
defendant is also a career offender. Such a rule could provide that the
offense level for the defendant's conduct is to be determined by
Sec. 4B1.1. The effect of this rule would be that the defendant's
offense level, regardless of whether the defendant also is convicted of
the underlying offense, would always begin at offense level 37, with a
guideline range of 360-life. To satisfy the statute's requirement that
the sentence be imposed consecutively to any other count, the rule
could provide any of the following variations when the offense involves
multiple count(s): (A) A sentence within the range of 360-life is
imposed consecutive to the final guideline sentence for the additional
counts; (B) the minimum term required by statute (e.g., 5 years) is
imposed consecutive to the final guideline sentence; or (C) the section
924(c) count is grouped with the underlying offense and the final
guideline sentence is structured so that a portion of the total
punishment, corresponding to the minimum term required by the statute,
is imposed consecutive to the remainder of the guideline sentence.
(Note that the guidelines currently use the approach in (C) when the
offense involves a conviction for failure to appear and for the
underlying offense. See Sec. 2J1.6 (Failure to Appear by Defendant),
comment. (n. 3).)
Issue for Comment: Circuit Conflicts
(5) Issue for Comment: The Commission requests public comment on
whether, and in what manner, it should address by amendment the
following circuit court conflicts:
(A) Whether for purposes of downward departure from the guideline
range a ``single act of aberrant behavior'' (Chapter 1, Part A,
Sec. 4(d)) includes multiple acts occurring over a period of time.
Compare United States v. Grandmaison, 77 F.3d 555 (1st Cir. 1996)
(Sentencing Commission intended the word ``single'' to refer to the
crime committed; therefore, ``single acts of aberrant behavior''
include multiple acts leading up to the commission of the crime; the
district court should review the totality of circumstances); Zecevic v.
U.S. Parole Comm'n, 163 F.3d 731 (2d Cir. 1998) (aberrant behavior is
conduct which constitutes a short-lived departure from an otherwise
law-abiding life, and the best test is the totality of the
circumstances); United States v. Takai, 941 F.2d 738 (9th Cir. 1991)
(``single act'' refers to the particular action that is criminal, even
though a whole series of acts lead up to the commission of the crime);
United States v. Pena, 930 F.2d 1486 (10th Cir. 1991) (aberrational
nature of the defendant's conduct and other circumstances justified
departure); with United States v. Marcello, 13 F.3d 752 (3d Cir. 1994)
(single act of aberrant behavior requires a spontaneous, thoughtless,
single act involving lack of planning); United States v. Glick, 946
F.2d 335 (4th Cir. 1991) (conduct over a ten-week period involving a
number of actions and extensive planning was not ``single act of
aberrant behavior''); United States v. Williams, 974 F.2d 25 (5th Cir.
1992) (a single act of aberrant behavior is generally spontaneous or
thoughtless); United States v. Carey, 895 F.2d 318 (7th Cir. 1990)
(single act of aberrant behavior contemplates a spontaneous and
seemingly thoughtless act rather than one which was the result of
substantial planning); United States v. Garlich, 951 F.2d 161 (8th Cir.
1991) (fraud spanning one year and several transactions was not a
``single act of aberrant behavior''); United States v. Withrow, 85 F.3d
527 (11th Cir. 1996) (a single act of aberrant behavior is not
established unless the defendant is a first-time offender and the crime
was a thoughtless act rather than one which was the result of
substantial planning); United States v. Dyce, 78 F.3d 610 (D.C. Cir.),
amd on reh. 91 F.3d 1462 (D.C. Cir. 1996) (same).
If the Commission were to adopt the view that a downward departure
for aberrant behavior is limited to spontaneous and thoughtless acts,
it could, for example, eliminate the suggested departure language from
Chapter One of the Guidelines Manual and establish a departure
provision in Chapter Five, Part K, Subpart 2 (Other Grounds for
Departure) for spontaneous and thoughtless acts that do not include a
course of conduct composed of multiple planned criminal acts, even if
the defendant is a first-time offender.
The Commission is interested in exploring an alternative approach
to the majority and minority views to resolve the circuit conflict
regarding departure for a ``single act of aberrant behavior.'' Assuming
the guidelines permit a departure for aberrant behavior, what guidance
should the Commission give the court in determining the appropriateness
of granting a departure in a given case. For example, should such a
departure be precluded for a defendant convicted of certain offenses,
such as crimes of violence (see 28 U.S.C. 994(j) that provides that
``guidelines are to reflect the general appropriateness of imposing a
sentence other than imprisonment in cases in which the defendant is a
first offender who has not been convicted of a crime of violence or an
otherwise serious offense.* * *''). What other factors should the
Commission articulate to guide the court in determining the
appropriateness of a departure in a particular case?
(B) Whether the enhanced penalties in Sec. 2D1.2 (Drug Offenses
Occurring Near Protected Locations or Involving Underage or Pregnant
Individuals) apply only when the defendant is convicted of an offense
referenced to that guideline or, alternatively, whenever the
defendant's relevant conduct included drug sales in a protected
location or involving a protected individual. Compare United States v.
Chandler, 125 F.3d 892, 897-98 (5th Cir. 1997) (``First, utilizing the
Statutory Index located in Appendix A, the court determines the offense
guideline section most `applicable to the offense of conviction.' ''
Once the appropriate guideline is identified, a court can take relevant
conduct into account only as it relates to factors set forth in that
guideline); United States v. Locklear, 24 F.3d 641 (4th Cir. 1994) (In
finding that Sec. 2D1.2 does not apply to convictions under 21 U.S.C.
841, the court relied on the fact that the commentary to Sec. 2D1.2
lists as the ``Statutory Provisions'' to which it is applicable 21
U.S.C. 859, 860, and 861, but not 841. ``[S]ection 2D1.2 is intended
not to identify a specific offense characteristic which would, where
applicable, increase the offense level over the base level assigned by
Sec. 2D1.1, but rather to define the base offense level for violations
of 21 U.S.C. 859, 860 and 861.''); United States v. Saavedra, 148 F.3d
1311 (11th Cir. 1998) (defendant's uncharged but relevant conduct is
actually irrelevant to determining the sentencing guideline applicable
to his offense; such conduct is properly considered only after the
applicable guideline has been selected when the court is analyzing the
various sentencing considerations within the guideline chosen, such as
the base offense level, specific offense
[[Page 7091]]
characteristics, and any cross-references); with United States v. Clay,
117 F.3d 317 (6th Cir.), cert. denied, 118 S. Ct. 395 (1997) (applying
Sec. 2D1.2 to defendant convicted only of possession with intent to
distribute under 21 U.S.C. 841 (but not convicted of any statute
referenced to Sec. 2D1.2) based on underlying facts indicating
defendant involved a juvenile in drug sales); United States v.
Oppedahl, 998 F.2d 584 (8th Cir. 1993) (applying Sec. 2D1.2 to
defendant convicted of conspiracy to distribute and possess with intent
to distribute based on fact that defendant's relevant conduct involved
distribution within 1,000 feet of school); United States v. Robles, 814
F. Supp. 1249 (E.D. Pa), aff'd (unpub.), 8 F.3d 814 (3d Cir. 1993)
(court looks to relevant conduct to determine appropriate guideline).
If the Commission were to choose to clarify that the enhanced
penalties in Sec. 2D1.2 only apply in circumstances in which the
defendant is convicted of an offense referenced to that guideline in
the Statutory Index (Appendix A), the Commission could amend the
Introduction to the Statutory Index to make clear that, for every
statute of conviction, courts must apply the offense guideline
referenced for the statute of conviction listed in the Statutory Index
(unless the case falls within the limited exception for stipulations
set forth in Sec. 1B1.2 (Applicable Guidelines)) and that courts may
not decline to use the listed offense guideline in cases that could be
considered atypical or outside the heartland. See United States v.
Smith, 186 F.3d 290 (3d Cir. 1999) (determined that fraud guideline,
Sec. 2F1.1, was most appropriate guideline rather than the listed
guideline of money laundering, Sec. 2S1.1); United States v. Brunson,
882 F. 2d 151, 157 (5th Cir. 1989) (``It is not completely clear to us
under what circumstances the Commission contemplated deviation from the
suggested guidelines for an `atypical' case.''); United States v.
Hemmington, 157 F.3d 347 (5th Cir. 1998) (affirmed trial court's
departure from the money laundering guidelines to the fraud guideline).
Alternatively, or in combination with this approach, the Commission
could delete Sec. 2D1.2 and add an enhancement to Sec. 2D1.1 (Unlawful
Manufacturing, Importing, Exporting, or Trafficking) either (A) for the
real offense conduct of making drug sales in protected locations or
involving protected individuals; or (B) for a conviction for such
conduct.
(C) Whether the fraud guideline enhancement for ``violation of any
judicial or administrative order, injunction, decree, or process''
(Sec. 2F1.1(b)(4)(B)) applies to falsely completing bankruptcy
schedules and forms. Compare United States v. Saacks, 131 F.3d 540 (5th
Cir. 1997) (bankruptcy fraud implicates the violation of a judicial or
administrative order or process within the meaning of
Sec. 2F1.1(b)(3)(B)); United States v. Michalek, 54 F.3d 325 (7th Cir.
1995) (bankruptcy fraud is a ``special procedure''; it is a violation
of a specific adjudicatory process); United States v. Lloyd, 947 F.2d
339 (8th Cir. 1991) (knowing concealment of assets in bankruptcy fraud
violates ``judicial process''); United States v. Welch, 103 F.3d 906
(9th Cir. 1996) (same); United States v. Messner, 107 F.3d 1448 (10th
Cir. 1997) (same); United States v. Bellew, 35 F.3d 518 (11th Cir.
1994) (knowing concealment of assets during bankruptcy proceedings
qualifies as a violation of a ``judicial order''); with United States
v. Shadduck, 112 F.3d 523 (1st Cir. 1997) (falsely filling out
bankruptcy forms does not violate judicial process since the debtor is
not accorded a position of trust).
See also United States v. Carrozella, 105 F. 3d 796 (2d Cir. 1997)
(district court erred in enhancing the sentence for violation of
judicial process where the defendant filed false accounts in probate
court).
(D) Whether sentencing courts may consider post-conviction
rehabilitation while in prison or on probation as a basis for downward
departure at resentencing following an appeal. Compare United States v.
Rhodes, 145 F.3d 1375, 1379 (D.C. Cir. 1998) (post-conviction
rehabilitation is not a prohibited factor and, therefore, sentencing
courts may consider it as a possible ground for downward departure at
resentencing); United States v. Core, 125 F.3d 74, 75 (2d Cir.1997)
(``We find nothing in the pertinent statutes or the Sentencing
Guidelines that prevents a sentencing judge from considering post-
conviction rehabilitation in prison as a basis for departure if
resentencing becomes necessary.'') cert. denied, 118 S. Ct. 735 (1998);
United States v. Sally, 116 F.3d 76, 80 (3d Cir. 1997) (holding that
``post-offense rehabilitations efforts, including those which occur
post-conviction, may constitute a sufficient factor warranting a
downward departure.''); United States v. Rudolph, 190 F.3d 720, 723
(6th Cir. 1999); United States v. Green, 152 F.3d 1202, 1207 (9th Cir.
1998) (same); United States v. Brock, 108 F.3d 31 (4th Cir. 1997)
(recognizing extraordinary post-offense rehabilitation as a basis for a
downward departure); with United States v. Sims, 174 F.3d 911 (8th Cir.
1999) (district court lacks authority at resentencing following an
appeal to depart on ground of post-conviction rehabilitation which
occurred after the original sentencing; refuses to extend holding
regarding departures for post-offense rehabilitation to conduct that
occurs in prison; departure based on post-conviction conduct infringes
on statutory authority of the Bureau of Prisons to grant good-time
credits.)
The Commission also invites comment on whether to distinguish
between departures for post-offense rehabilitation (see Secs. 3E1.1,
comment. (n. 1(g) and 5K2.0) and post-sentence rehabilitation and, if
so, what guidance the Commission should provide. It should be noted
that a departure for post-sentencing rehabilitation is only available
if there is a resentencing.
(E) Whether a court can base an upward departure on conduct that
was dismissed or uncharged as part of a plea agreement in the case.
Compare United States v. Figaro, 935 F.2d 4 (1st Cir. 1991) (allowing
upward departure based on uncharged conduct); United States v. Kim, 896
F.2d 678 (2d Cir. 1990) (allowing upward departure based on related
conduct that formed the basis of dismissed counts and based on prior
similar misconduct not resulting in conviction); United States v.
Baird, 109 F.3d 856 (3d Cir.), cert. denied, 118 S. Ct. 243 (1997)
(allowing upward departure based on dismissed counts if the conduct
underlying the dismissed counts is related to the offense of conviction
conduct; cites United States v. Watts, 519 U.S. 148 (1997)); United
States v. Cross, 121 F.3d 234 (6th Cir. 1997) (allowing upward
departure based on dismissed conduct; citing Watts); United States v.
Ashburn, 38 F.3d 803 (5th Cir. 1994) (allowing upward departure based
on dismissed conduct); United States v. Big Medicine, 73 F.3d 994 (10th
Cir. 1995) (allowing departure based on uncharged conduct) with United
States v. Ruffin, 997 F.2d 343 (7th Cir. 1993) (error to depart based
on counts dismissed as part of plea agreement); United States v.
Harris, 70 F.3d 1001 (8th Cir. 1995) (same); United States v. Lawton,
193 F.3d 1087 (9th Cir. 1999) (court may not accept plea bargain and
later consider dismissed charges for upward departure in sentencing).
The Commission also invites comment on whether the Commission
should provide more guidance about what conduct can or cannot be
considered for departure under the guidelines. More specifically, the
Commission invites comment on whether to provide that departures are
only permissible for conduct detailed in Sec. 1B1.3(a)(1), (2), and
(3). The implication of such a provision would
[[Page 7092]]
be that, most significantly, departures would be permissible only with
respect to conduct that occurred during the commission of the offense
of conviction, in preparation for that offense, or in the course of
attempting to avoid detection or responsibility for that offense, that
is not accounted for in a guideline enhancement. Departures would be
prohibited for other conduct, such as dismissed or uncharged bank
robberies that are not included in relevant conduct because they are
not the subject of an offense of conviction.
Proposed Amendment: Technical Amendments Package
(6) Synopsis of Proposed Amendment--This proposed amendment makes
technical and conforming changes to various guidelines as follows:
(A) It corrects a typographical error in the counterfeiting
guideline, Sec. 2B5.1, by inserting a missing word in subsection
(b)(2).
(B) It corrects a typographical error in the Chemical Quantity
Table at Sec. 2D1.11 regarding certain quantities of Isosafrole and
Safrole by changing those quantities from grams to kilograms.
(C) It corrects an omission that was made during the prior
Commission's final deliberations on amendments to implement the
Comprehensive Methamphetamine Control Act of 1996 (the ``Act''), Pub.
L. 104-237. Specifically, the proposal amends Secs. 2D1.11 (Listed
Chemicals) and 2D1.12 (Prohibited Equipment) to add an enhancement for
environmental damage associated with methamphetamine offenses. The
prior Commission intended to amend these guidelines in this manner, but
due to a technical oversight, the final amendment did not implement
that intent.
The Act directed the Commission to determine whether the guidelines
adequately punish environmental violations occurring in connection with
precursor chemical offenses under 21 U.S.C. 841(d) and (g) (sentenced
under Sec. 2D1.11), and manufacturing equipment offenses under 21
U.S.C. 843(a)(6) and (7) (sentenced under Sec. 2D1.12). On February 25,
1997, the Commission published two options to provide an increase for
environmental damage associated with the manufacture of
methamphetamine, the first by a specific offense characteristic, the
second by an invited upward departure. See 62 FR 8487 (Feb. 25, 1997).
Both options proposed to make amendments to Secs. 2D1.11, 2D1.12, and
2D1.13. Additionally, although the directive did not address
manufacturing offenses under 21 U.S.C. 841(a), the Commission elected
to use its broader guideline promulgation authority under 28 U.S.C.
994(a) to ensure that environmental violations occurring in connection
with this more frequently occurring offense were treated similarly.
Accordingly, the published options also included amendments to
Sec. 2D1.1.
The published options were revised prior to final action by the
Commission. However, in the revision that was presented to the
Commission for promulgation in late April 1997, amendments to
Secs. 2D1.11 and 2D1.12 were mistakenly omitted from the option to
provide a specific offense characteristic, although that revision did
refer to Secs. 2D1.11 and 2D1.12 in the synopsis as well as included
amendments to these guidelines in the upward departure option. (The
revision did not include any amendments to guideline Sec. 2D1.13,
covering record-keeping offenses, because, upon further examination, it
seemed unlikely that offenses sentenced under this guideline would
involve environmental damage.) Accordingly, when the commissioners
voted to adopt the option providing the specific offense characteristic
for Secs. 2D1.1, 2D1.11, and 2D1.12, their vote effectively was limited
to what was before them, i.e., an environmental damage enhancement for
Sec. 2D1.1 only. This amendment corrects that error.
(D) It updates the Statutory Provisions of the firearms guideline,
Sec. 2K2.1, to conform to statutory re-designations made to 18 U.S.C.
924 (and already conformed in Appendix A (Statutory Index)).
(E) It updates the guidelines for conditions of probation,
Sec. 5B1.3, and supervised release, Sec. 5D1.3. Effective one year
after November 26, 1997, 18 U.S.C. 3563(a) and 3583(a) were amended to
add a new mandatory condition of probation requiring a person convicted
of a sexual offense described in 18 U.S.C. 4042(c)(4) (enumerating
several sex offenses) to report to the probation officer the person's
address and any subsequent change of address, and to register as a sex
offender in the state in which the person resides. See section 115 of
Departments of Commerce, Justice, and State, the Judiciary, and Related
Agencies Appropriations Act, 1998 (Pub. L. 105-119). Because the
effective date of this change was later than the effective date of the
last Guidelines Manual (November 1, 1998), the Commission did not amend
the relevant guidelines, Sec. 5B1.3 (Conditions of Probation) and
Sec. 5D1.3 (Conditions of Supervised Release) to reflect the new
condition. However, the Commission did provide a footnote in each
guideline setting forth the new condition and alerting the user as to
the date on which the condition became effective. This proposal amends
Secs. 5B1.3 and 5D1.3 to include the sex offender condition as a
specific mandatory condition in both guidelines rather than in a
footnote.
Proposed Amendment
Section 2B5.1(b)(2) is amended by inserting ``level'' following
``increase to''.
Section 2D1.11(d) is amended in subdivision (9) by striking ``At
least 1.44 G but less than 1.92 KG of Isosafrole;'' and inserting ``At
least 1.44 KG but less than 1.92 KG of Isosafrole;''; and by striking
``At least 1.44 G but less than 1.92 KG of Safrole;'' and inserting
``At least 1.44 KG but less than 1.92 KG of Safrole;''.
Section 2D1.11(d) is amended in subdivision (10) by striking ``Less
than 1.44 G'' before ``of Isosafrole;'' and inserting ``Less than 1.44
KG''; and by striking ``Less than 1.44 G'' before ``of Safrole;'' and
inserting ``Less than 1.44 KG''.
Section 2D1.11(b) is amended by adding at the end the following
subdivision:
``(3) If the offense involved (A) an unlawful discharge, emission,
or release into the environment of a hazardous or toxic substance, or
(B) the unlawful transportation, treatment, storage, or disposal of a
hazardous waste, increase by 2 levels.''.
The Commentary to Sec. 2D1.11 captioned ``Application Notes'' is
amended by adding at the end the following:
``8. Under subsection (b)(3), the enhancement applies if the
conduct for which the defendant is accountable under Sec. 1B1.3
(Relevant Conduct) involved any discharge, emission, release,
transportation, treatment, storage, or disposal violation covered by
the Resource Conservation and Recovery Act, 42 U.S.C. 6928(d), the
Federal Water Pollution Control Act, 33 U.S.C. 1319(c), or the
Comprehensive Environmental Response, Compensation, and Liability Act,
42 U.S.C. 5124, 9603(b). In some cases, the enhancement under this
subsection may not adequately account for the seriousness of the
environmental harm or other threat to public health or safety
(including the health or safety of law enforcement and cleanup
personnel). In such cases, an upward departure may be warranted.
Additionally, any costs of environmental cleanup and harm to persons or
property should be considered by the court in determining the amount of
restitution under Sec. 5E1.1
[[Page 7093]]
(Restitution) and in fashioning appropriate conditions of supervision
under Sec. 5B1.3 (Conditions of Probation) and Sec. 5D1.3 (Conditions
of Supervised Release).''.
Section 2D1.12(b) is amended by adding at the end the following:
``(2) If the offense involved (A) an unlawful discharge, emission,
or release into the environment of a hazardous or toxic substance, or
(B) the unlawful transportation, treatment, storage, or disposal of a
hazardous waste, increase by 2 levels.''.
The Commentary to 2D1.12 captioned ``Application Notes'' is amended
by adding at the end the following:
``3. Under subsection (b)(2), the enhancement applies if the
conduct for which the defendant is accountable under Sec. 1B1.3
(Relevant Conduct) involved any discharge, emission, release,
transportation, treatment, storage, or disposal violation covered by
the Resource Conservation and Recovery Act, 42 U.S.C. 6928(d), the
Federal Water Pollution Control Act, 33 U.S.C. 1319(c), or the
Comprehensive Environmental Response, Compensation, and Liability Act,
42 U.S.C. 5124, 9603(b). In some cases, the enhancement under this
subsection may not adequately account for the seriousness of the
environmental harm or other threat to public health or safety
(including the health or safety of law enforcement and cleanup
personnel). In such cases, an upward departure may be warranted.
Additionally, any costs of environmental cleanup and harm to persons or
property should be considered by the court in determining the amount of
restitution under Sec. 5E1.1 (Restitution) and in fashioning
appropriate conditions of supervision under Sec. 5B1.3 (Conditions of
Probation) and Sec. 5D1.3 (Conditions of Supervised Release).''.
The Commentary to Sec. 2K2.1 captioned ``Statutory Provisions'' is
amended by striking ``(e), (f), (g), (h), (j)-(n)'' and inserting
``(e)-(i), (k)-(o)''.
Section 5B1.3(a) is amended by striking the asterisk after
``Conditions''; in subdivision (8) by striking the period after
``Sec. 3563(a))'' and inserting a semi-colon; and by adding at the end
the following:
``(9) a defendant convicted of a sexual offense as described in 18
U.S.C. 4042(c)(4) shall report the address where the defendant will
reside and any subsequent change of residence to the probation officer
responsible for supervision, and shall register as a sex offender in
any State where the person resides, is employed, carries on a vocation,
or is a student.'';
and by striking the note at the end of the Sec. 5B1.3 in its entirety
as follows:
*Note: Effective one year after November 26, 1997, section
3563(a) of Title 18, United States Code, was amended (by section 115
of Pub. L. 105-119) to add the following new mandatory condition of
probation:
(9) a defendant convicted of a sexual offense as described in 18
U.S.C. 4042(c)(4) (as amended by section 115 of Pub. L. 105-119) shall
report the address where the defendant will reside and any subsequent
change of residence to the probation officer responsible for
supervision, and shall register as a sex offender in any State where
the person resides, is employed, carries on a vocation, or is a
student.''.
Section 5D1.3(a) is amended by striking the asterisk after
``Conditions''; in subdivision (6) by striking the period after
``Sec. 3013'' and inserting a semi-colon; and by adding at the end the
following:
``(7) a defendant convicted of a sexual offense as described in 18
U.S.C. 4042(c)(4) shall report the address where the defendant will
reside and any subsequent change of residence to the probation officer
responsible for supervision, and shall register as a sex offender in
any State where the person resides, is employed, carries on a vocation,
or is a student.'';
and by striking the note at the end of Sec. 5D1.3 in its entirety as
follows:
*Note: Effective one year after November 26, 1997, section
3583(a) of Title 18, United States Code, was amended (by section 115
of Pub. L. 105-119) to add the following new mandatory condition of
supervised release:
(7) a defendant convicted of a sexual offense as described in 18
U.S.C. 4042(c)(4) (as amended by section 115 of Pub. L. 105-119) shall
report the address where the defendant will reside and any subsequent
change of residence to the probation officer responsible for
supervision, and shall register as a sex offender in any State where
the person resides, is employed, carries on a vocation, or is a
student.''.
[FR Doc. 00-3274 Filed 2-10-00; 8:45 am]
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