Short title

This Act may be cited as the

Defending America's Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2004

Protecting children from drug traffickers

(a)

Distribution to persons under 21 years of age; first offense

Section 418(a) of the Controlled Substances Act (21 U.S.C. 859(a)) is amended— (1)by inserting or section 406 after 401(a)(1); (2)by inserting , or attempting or conspiring to do so, after twenty-one years of age; (3)by striking involving the same controlled substance and schedule and inserting without regard to the type of controlled substance and schedule; and (4)by striking not less than one year. and inserting not less than 5 years. Except to the extent a greater minimum sentence is otherwise provided by section 401(b), a term of imprisonment under this subsection in a case involving distribution to a person under 18 years of age by a person 21 or more years of age shall be not less than 10 years. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under the preceding sentence.. (b)

Distribution to persons under 21 years of age; second or subsequent offense

Section 418(b) of the Controlled Substances Act (21 U.S.C. 859(b)) is amended— (1)by inserting or section 406 after 401(a)(1); (2)by inserting , or attempting or conspiring to do so, after twenty-one years of age; (3)by striking involving the same controlled substance and schedule and inserting without regard to the type of controlled substance and schedule; (4)by inserting or for a felony drug offense after May 1, 1971; and (5)by striking not less than one year. and inserting not less than 10 years. Except to the extent a greater minimum sentence is otherwise provided by section 401(b), a term of imprisonment under this subsection in a case involving distribution to person under 18 years of age by a person 21 or more years of age shall be a mandatory term of life imprisonment. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under the preceding sentence.. (c)

Distribution or manufacture near schools or colleges; first offense

Section 419(a) of the Controlled Substances Act (21 U.S.C. 860(a)) is amended— (1)by striking or section 416 and inserting , section 406, or section 416; (2)by inserting , or attempting or conspiring to do so, after manufacturing a controlled substance; (3)by striking within 100 feet of; (4)by inserting , or public library, or public or private daycare facility after video arcade facility; and (5)by striking not less than one year and inserting not less than 5 years. (d)

Distribution or manufacture near schools or colleges; second or subsequent offense

Section 419(b) of the Controlled Substances Act (21 U.S.C. 860(b)) is amended— (1)by striking or section 416 and inserting , section 406, or section 416; (2)by inserting , or attempting or conspiring to do so, after manufacturing a controlled substance; (3)by striking within 100 feet of; (4)by inserting , or public library, or public or private daycare facility after video arcade facility; (5)by inserting or for a felony drug offense after subsection (a) of this section; and (6)by striking not less than three years each place it appears and inserting not less than 10 years. (e)

Employing children in distribution near protected places

Section 419(c) of the Controlled Substances Act (21 U.S.C. 860(c)) is amended— (1)by striking at least 21 years of age and inserting at least 18 years of age; (2)by inserting Except to the extent a greater minimum sentence is otherwise provided for by section 401(b), a person shall be sentenced under this subsection to a term of imprisonment of not less than 10 years after triple those authorized by section 401.; (3)by striking (1) and inserting (A) and in subparagraph (A) as so redesignated, by inserting , or attempts or conspires to do so after to violate this section; (4)by striking (2) and inserting (B)and in subparagraph (B) as so redesignated, by inserting , or attempts or conspires to do so after official; (5)by inserting (1) after (c); and (6)by adding at the end the following:

(2)

Second or subsequent offenses

Paragraph (1) shall be applied to an offense after a single prior conviction under that paragraph or for a felony drug offense has become final by substituting not less than 15 years for not less than 10 years. Penalties for third or subsequent convictions are governed by section 401(b)(1)(A).

(f)

Employment or use of persons under 18 years old; first offense

Section 420(a)(1) of the Controlled Substances Act (21 U.S.C. 861(a)(1)) is amended by inserting , or attempts or conspires to do so after chapter. (g)

Employment or use of persons under 18 years old; first offense

Section 420(a)(2) of the Controlled Substances Act (21 U.S.C. 861(a)(2)) is amended by inserting , or attempts or conspires to do so after official. (h)

Employment or use of persons under 18 years old; first offense

Section 420(a)(3) of the Controlled Substances Act (21 U.S.C. 861(a)(3)) is amended by inserting , or attempts or conspires to do so after chapter. (i)

Employment or use of persons under 18 years old; first offense

Section 420(b) of the Controlled Substances Act (21 U.S.C. 861(b)) is amended by striking not less than one year. and inserting not less than 5 years. Except to the extent a greater minimum sentence is otherwise provided by section 401(b), a term of imprisonment of a person 21 or more years of age convicted under this subsection shall not be less than 10 years. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under the preceding sentence.. (j)

Employment or use of persons under 18 years old; second or subsequent offense

Section 420(c) of the Controlled Substances Act (21 U.S.C. 861(c)) is amended— (1)by inserting for a felony drug offense after prior conviction under subsection (a) of this section; and (2)by striking not less than one year. and inserting not less than 10 years. Except to the extent a greater minimum sentence is otherwise provided by section 401(b), a term of imprisonment of a person 21 years or more of age convicted under this subsection shall be a mandatory term of life imprisonment. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under the preceding sentence.. (k)

Providing or distributing a controlled substance to an underage person

Section 420(d) of the Controlled Substances Act (21 U.S.C. 861(d)) is amended by striking subject to a term of imprisonment for not more than 5 years and inserting sentenced to a term of imprisonment of not less than 5 years. (l)

Sentencing guidelines

(1)Not more than 90 days after the date of the enactment of this Act, the Sentencing Commission shall amend the sentencing guidelines, policy statements, and official commentary issued under section 994 of title 28, United States Code, so as to ensure that the sentence of any person who has been convicted of a felony violation of title II of the Controlled Substances Act, or a felony violation of the Controlled Substances Import and Export Act, is calculated in accordance with the following requirements if any part of the offense or relevant conduct involved manufacturing, transporting, possessing, storing, using, or trafficking in a controlled substance or a chemical or material used or intended to be used in the manufacture of any controlled substance in or near the presence of a person under the age of 18, or in a location in which a person under the age of 18 resides for any period of time, or if any of the offense or relevant conduct involved conduct constituting an offense under section 417(b), 418, 419, 419a, or 420 of the Controlled Substances Act (whether or not charged): (A)Section 5C1.2 of the guidelines shall not apply. (B)Increase the base offense level by 2 levels. (C)If the defendant was the parent or guardian or person otherwise responsible for the care or supervision of the person under the age of 18 increase the base offense level by 4 levels. (2)Section 3553(f) of title 18, United States Code, is amended— (A)in paragraph (4), by striking and at the end; (B)by redesignating paragraph (5) as paragraph (6); and (C)by inserting after paragraph (4) the following new paragraph:

(5)no part of the offense or relevant conduct involved manufacturing, transporting, possessing, storing, using, or trafficking a controlled substance or a chemical or material used or intended to be used in the manufacture of any controlled substance in or near the presence of a person under the age of 18; or in a location in which a person under the age of 18 resides for any period of time; or if any of the offense or relevant conduct involved conduct constituting an offense under section 417(b), 418, 419, 419a or 420 of the Controlled Substances Act (whether or not charged); and

Fairness in sentencing: assuring traffickers in large quantities of drugs receive appropriate sentences and denying double sentencing benefits

(a)

In general

The Guidelines Manual promulgated by the Sentencing Commission pursuant to section 994(a) of title 28, United States Code, as in effect on May 1, 2004, is amended— (1)in section 2D1.1(a)(3) by striking , except that if the defendant receives an adjustment under section 3B1.2 (Mitigating Role), the base offense level under this subsection shall not be more than level 30. and inserting below.; (2)in the Application Notes in the Commentary to section 3B1.2 by striking Application Note 6 in its entirety; (3)in section 2D1.1(b) by striking subsection (6) in its entirety; and (4)in Application Notes in the Commentary to section 2D1.1 by striking Application Note 21 in its entirety. (b)

Limitations on commission

(1)

Future amendments

On and after the date of the enactment of this Act no amendment promulgated by the Sentencing Commission shall alter or repeal the effect of the amendments made by this section. (2)

Amendments as of enactment

Upon the enactment of this Act, any amendment to the Guidelines Manual promulgated by the Sentencing Commission before such enactment shall have no further force or effect to the extent that amendment— (A)is to section 2D1.11 or to a provision of the Guidelines Manual that is amended by subsection (a); and (B)takes effect after May 1, 2004 but before the date of the enactment of this Act.

Protecting persons in drug treatment

(a)

In general

The Controlled Substances Act is amended by inserting after section 419 (21 U.S.C. 860) the following:

419a.

protection of persons in drug treatment

(a)Any person who violates section 401(a)(1), section 406, or section 416 by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within 1,000 feet of, the real property comprising a drug treatment facility, or attempting or conspiring to do so, shall, except to the extent a greater minimum sentence is provided, be imprisoned for not less than 5 nor more than life. (b)Whoever intentionally offers, solicits, entices, persuades, encourages, induces, or coerces a person enrolled in a drug treatment program or facility, who is under a court order to do so, or who has previously been enrolled in a drug treatment program or facility, to purchase, receive, or possess a controlled substance, attempts or conspires to do so, except to the extent that a greater minimum sentence is provided for, shall be sentenced to a term of imprisonment which may not be less than 5 years or more than life and if death or serious bodily injury resulted from the use of such substance shall not be less than 10 or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of title 18, or $4,000,000 if the defendant is an individual or $10,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction under this subsection or after a prior conviction for any felony drug offense has become final, such person shall be sentenced to not less than 10 years and if death or serious bodily injury resulted from the use of such substance shall be sentenced to life. Penalties for third or subsequent convictions shall be governed by section 841(a)(1)(A) of this title. (c)As used in this section— (1)the term drug treatment facility includes— (A)any location at which a practitioner is authorized to dispense narcotic drugs to individuals for maintenance treatment or detoxification treatment under section 303(g) of the Controlled Substances Act (21 U.S.C. 823(g)); (B)any location at which an individual or entity (other than a general medical care facility) provides drug abuse diagnosis, treatment or referral for treatment; and (C)an identified unit within a general medical facility which provides drug abuse diagnosis, treatment, or referral for treatment; and (2)the term drug treatment program includes— (A)a practitioner or entity who dispenses narcotic drugs to individuals for maintenance treatment or detoxification treatment under section 303(g) of the Controlled Substances Act (21 U.S.C. 823(g); (B)an individual or entity which provides drug abuse diagnosis, treatment or referral for treatment; (C)medical personnel or other staff in a general medical care facility whose primary function is the provision of drug abuse diagnosis, treatment or referral for treatment; and (D)a practitioner or entity who is authorized by the Substance Abuse and Mental Health Services Administration to dispense opioid agonist treatment medication to individuals for maintenance treatment or detoxification treatment.

(b)

Clerical amendment

The table of contents of the Comprehensive Drug Abuse Prevention and Control Act of 1970 is amended by inserting after the item relating to section 419 the following new item:

419a. Protection of persons in drug treatment

Conforming guideline sentencing to conspiracy law

Assuring limitation on applicability of statutory minimums to persons who have done everything they can to assist the Government

Section 3553(f) of title 18, United States Code, is amended— (1)so that paragraph (6), as so redesignated by section 2 of this Act, reads as follows:

(6)the Government certifies that the defendant has entered a timely plea of guilty to the most serious readily provable offense and has otherwise done everything possible to assist substantially in the investigation and prosecution of another person as set forth in subsection (e), but was unable to so assist because the defendant did not have sufficient information, or had information already known to, or not useful to the Government, but a defendant who at any time provided the Government or the court with false, misleading, or incomplete information, otherwise obstructed the administration of justice, or delayed affirmative efforts to assist substantially beyond a time when such efforts could have reasonably been useful to the Government shall not be sentenced under this subsection.

; and

(2)by striking court shall impose a sentence and inserting court shall be authorized to impose a sentence.

Assuring sentencing enhancement for relevant conduct

Not more than 90 days after the date of the enactment of this act, the Sentencing Commission shall amend the sentencing guidelines, policy statements, and official commentary issued under section 994 of title 29, United States Code so as to ensure— (1)that the commentary to section 2D1.2 includes application of the section to violations of section 401 or 406 of the Controlled Substances Act (21 U.S.C. 841 or 846); (2)that the enhancements under Guideline section 2D1.2 and any guideline provision promulgated pursuant to any provision of this Act, are applicable without regard to whether the defendant has been convicted of a statutory violation of drug trafficking in a protected location or involving an underage or pregnant individual (including an attempt or conspiracy to commit such a violation) and without regard to whether the defendant stipulated to such a statutory violation of such an offense; (3)that conduct constituting an offense under section 409, 417, 418, 419, 419a or 420 of the Controlled Substances Act (21 U.S.C. 849, 858, 859, 860, 860a, or 861) (without regard to conviction) shall be treated as relevant conduct under section 1B1.3 for persons convicted under section 401 or 406 of that Act (21 U.S.C. 841 or 846); and (4)that section 2D1.2(a)(1) provides for a 4 rather than a 2 level increase; that section 2D1.2(a)(2) provides for a 2, rather than 1, level increase; that section 2D1.2(a)(3) provides for a level 28, rather than level 26; and that section 2D1.2(a)(4) provides for a level 18, rather than level 13.

Assuring progressive enhancements for persons possessing or using firearms

Not more than 90 days after the date of the enactment of this Act, the Sentencing Commission shall amend the sentencing guidelines, policy statements, and official commentary issued under section 994 of title 29, United States Code, so as to ensure— (1)that the specific offender characteristics under section 2D1.1(b) provide for increases to the base offense level of— (A)8 levels if a firearm was possessed in or near the presence of a person under the age of 18, or in a location in which a person under the age of 18 resides for any period of time; (B)6 levels if the defendant discharged a firearm or 8 or more firearms were possessed or a firearm described in section 921(a)(23) of title 18, United States Code, was possessed, or a firearm equipped with a device described in section 921(a)(24) of title 18, United States Code, was possessed, or a device described in section 921(a)(4) of title 18, United States Code, was possessed; (C)4 levels if the defendant brandished or otherwise used a dangerous weapon (including a firearm) or possessed a firearm described in section 921(a), (6), (8), or (30) of title 18 United States Code, or section 5845(a) of title 26, United States Code or 6 or more firearms were possessed; (D)3 levels if 2 or more firearms were possessed; and (E)2 levels if a dangerous weapon (including a firearm) was possessed; (2)that the specific offender characteristics under section 2D1.1 provide for an increase to the base offense level of— (A)6 levels if the offense involved permanent or life-threatening bodily injury; (B)4 levels if the offense involved serious bodily injury; and (C)2 levels if the offense involved bodily injury; (3)that the cumulative adjustments under paragraphs (1) and (2) shall not shall not exceed 10 levels; and (4)that the specific characteristics under section 2D1.1 provide for an increase to the base offense level of 2 levels if the defendant committed any part of the instant offense after sustaining a felony conviction for a controlled substance offense.

Assuring judicial authority consistent with law in sentencings

Rule 11(c)(3) of the Federal Rules of Criminal Procedure is amended by striking subparagraphs (A) through (B) and inserting the following:

(A)To the extent the plea agreement is of the type specified in Rule 11(c)(1)(A), the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report. The court may accept the agreement, whether before or after review of the presentence report, only if the court determines, for reasons stated on the record with specificity, that the charge or charges to which the defendant is pleading adequately reflect the seriousness of the actual offense behavior and that accepting the agreement is consistent with the statutory purposes of sentencing and the sentencing guidelines and will permit a sentence within the applicable guideline range, or that the Attorney General has certified that the plea agreement is in the national security interest of the United States. (B)To the extent the plea agreement is of the type specified in Rule 11(c)(1)(B), the court must advise the defendant that the defendant has no right to withdraw the plea if the court does not follow the recommendation or request. The court may only follow the recommendation or request if the recommended or requested sentence is within the applicable guideline range or departs from the applicable guideline range for lawful and justifiable reasons, or that the Attorney General has certified that the recommended or requested sentence is in the national security interest of the United States. (C)To the extent the plea agreement is of the type specified in Rule 11(c)(1)(C), the court may reject the agreement or defer a decision until the court has reviewed the presentence report. The court may only accept the agreed sentence, and must so advise the defendant, if the agreed sentence is within the applicable guideline range or departs from the applicable guideline range for lawful and justifiable reasons, or that the Attorney General has certified that the agreed sentence is in the national security interest of the United States.

10.

Mandatory detention of persons convicted of serious drug trafficking offenses and crimes of violence

Section 3145(c) of title 18 United States Code, is amended— (1)by inserting prior to sentencing after may be ordered released; and (2)by striking the judicial officer, if it is clearly shown that there are exceptional reasons why such person’s detention would not be appropriate. and inserting the judicial officer if, the Government certifies that the defendant is engaged in ongoing active cooperation with the Government in contemplation of the defendant providing substantial assistance to the Government in the investigation and prosecution of another person pursuant to section 3553(e) of this title, section 994(n) of title 28, or United States Sentencing Guidelines section 5K1.1, and that defendant’s release on appropriate conditions pending sentencing is essential to permit such assistance. The judicial officer shall order the defendant detained immediately upon cessation of active cooperation, or upon being sentenced, whichever first occurs. Availability to be interviewed or to testify before a grand jury or a judicial proceeding is not grounds for release..

11.

Protecting human life and assuring child safety

Section 417 of the Controlled Substances Act (21 U.S.C. 858) is amended— (1)by inserting (a) before Whoever; (2)by inserting possessing, storing, or before transporting; (3)by inserting or intended to be used in the manufacture of a controlled substance,; (4)by striking not more than 10 years and inserting not less than 3 years nor more than life; and (5)by inserting at the end the following:

(b)Whoever violates subsection (a) by creating a substantial risk of harm to a person under the age of 18, shall be fined in accordance with title 18, United States Code, or imprisoned not less than 5 years, nor more than life, or both.

12.

Life imprisonment without release for drug felons and violent criminals convicted a third time

Section 401(b) of the Controlled Substances Act (21 U.S.C. 841(b)) is amended— (1)by inserting 860a, after Except as provided in section 859, 860,; and (2)by striking If any person commits a violation of this subparagraph or of section 418, 419, or 420 after two or more prior convictions for a felony dug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release and fined in accordance with the preceding sentence. and inserting If any person commits a violation of this subparagraph or of section 418, 419, 419a, or 420 (21 U.S.C. 859, 860, 860a, or 861) or a crime of violence after 2 or more prior convictions for a felony drug offense or crime of violence or for any combination thereof have become final, such person shall be sentenced to not less than a mandatory term of life imprisonment without release and fined in accordance with the preceding sentence. For purposes of this subparagraph, the term crime of violence means an offense that is a felony punishable by a maximum term of imprisonment of 10 years or more and has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or by its nature involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense..