[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1528 Introduced in House (IH)]






109th CONGRESS
  1st Session
                                H. R. 1528

 To amend the Controlled Substances Act to protect vulnerable persons 
             from drug trafficking, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             April 6, 2005

Mr. Sensenbrenner introduced the following bill; which was referred to 
  the Committee on the Judiciary, and in addition to the Committee on 
Energy and Commerce, for a period to be subsequently determined by the 
  Speaker, in each case for consideration of such provisions as fall 
           within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
 To amend the Controlled Substances Act to protect vulnerable persons 
             from drug trafficking, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Defending America's Most Vulnerable: 
Safe Access to Drug Treatment and Child Protection Act of 2005''.

SEC. 2. 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 inserting ``Except to the extent a greater minimum 
        sentence is otherwise provided by section 401(b) and regardless 
        of any maximum term of imprisonment, 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.'' after ``not less than 1 year.''.
    (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) and 
        regardless of any maximum term of imprisonment, 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'';
            (5) by inserting ``and regardless of any maximum term of 
        imprisonment'' after ``Except to the extent a greater minimum 
        sentence is otherwise provided by section 401(b) of this 
        title''; and
            (6) 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'';
            (6) by inserting ``and regardless of any maximum term of 
        imprisonment'' after ``Except to the extent a greater minimum 
        sentence is otherwise provided by section 401(b) of this 
        title''; and
            (7) 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) and 
        regardless of any maximum term of imprisonment, 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) Attempt and Conspiracy Relating to Employment or Use of Persons 
Under 18 Years Old.--Section 420(a) of the Controlled Substances Act 
(21 U.S.C. 861(a)) is amended--
            (1) in paragraph (1), by inserting ``, or attempt or 
        conspire to do so'' after ``chapter'';
            (2) in paragraph (2), by inserting ``, or attempt or 
        conspire to do so'' after ``official''; and
            (3) in paragraph (3), by inserting ``, or attempt or 
        conspire to do so'' after ``chapter''.
    (g) Employment or Use of Persons Under 18 Years Old; Penalty for 
First Offense.--Section 420(b) of the Controlled Substances Act (21 
U.S.C. 861(b)) is amended--
            (1) by inserting ``and regardless of any maximum term of 
        imprisonment'' after ``provided''; and
            (2) 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) and regardless 
        of any maximum term of imprisonment, 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.''.
    (h) 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 `` or for a felony drug offense'' after 
        ``prior conviction under subsection (a) of this section'';
            (2) by inserting ``and regardless of any maximum term of 
        imprisonment'' after ``provided''; and
            (3) 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) and 
        regardless of any maximum term of imprisonment, 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.''.
    (i) 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--
            (1) by striking ``fourteen'' and inserting ``16''; and
            (2) 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 or more than life''.
    (j) Maintaining Drug-Involved Premises Affecting Children.--Section 
416 of the Controlled Substances Act (21 U.S.C. 856) is amended--
            (1) in subsection (a)(1) by inserting ``storing,'' before 
        ``or using'';
            (2) by inserting ``(1)'' after ``(b)'';
            (3) by adding at the end of subsection (b) the following:
    ``(2) Any person who violates subsection (a) of this section, 
knowing that the manufacture, distribution, storage, or use of any 
controlled substance involves or is intended to involve a person under 
the age of 18 or an incompetent person, shall be fined not more than 
$2,000,000 (if the offender is an individual) and not more than 
$8,000,000 (if the offender is an organization) and imprisoned not less 
than 5 years or more than life, and if the defendant is the parent or 
guardian or otherwise responsible for the care or supervision of such 
person shall be fined as provided in this paragraph and imprisoned not 
less than ten years or more than life.''.
    (k) Drug Trafficking in the Presence of Children.--
            (1) In general.--Part D of the Controlled Substances Act is 
        amended by adding at the end the following:

             ``drug trafficking in the presence of children

    ``Sec. 424. (a) Except to the extent a greater minimum sentence is 
otherwise provided by this title, any person who violates section 
401(a)(1) of this title or section 1010(a) of title II in or near the 
presence of a person under the age of 18 or an incompetent person, or 
in a location in which such person resides for any period of time, 
knowing or having reason to know that such person is present or so 
resides shall be sentenced to a term of imprisonment which may not be 
less than 5 years or more than life.
    ``(b) Except to the extent a greater minimum sentence is otherwise 
provide by this title, any person who violates section 406 of this 
title or section 1013 of title II by committing any act in furtherance 
of the violation in or near the presence of a person under the age of 
18 or incompetent person, or in a location in which such person resides 
for any period of time, knowing or having reason to know that such 
person is present or so resides shall be sentenced to a term of 
imprisonment which may not be less than 5 years or more than life.
    ``(c) If at the time of the offense referred to in subsection (a) 
or at the time of the commission of the act in furtherance of the 
violation referred to in subsection (b) the defendant was the parent or 
guardian or otherwise responsible for the care or supervision of the 
person under the age of 18 or the incompetent person, shall be 
sentenced to a term of imprisonment which may not be less than 10 years 
or more than life.
    ``(d) As used in this section, the term `in or near the presence of 
a person' means within visual sight of such person, within any 
dwelling, automobile or other vehicle, or boat, in which such person is 
present, or within 500 feet of such person.''.
            (2) Clerical amendment.--The table of sections for the 
        Comprehensive Drug Abuse Prevention and Control Act of 1970 is 
        amended by inserting after the item relating to section 422 the 
        following new item:

``Sec. 424. Drug trafficking in the presence of children.''.
    (l) Drug Paraphernalia Intended for Children.--Section 422 of the 
Controlled substances Act (21 U.S.C. 863) is amended--
            (1) so that paragraph (1) of subsection (a) reads as 
        follows:
            ``(1) to sell, offer for sale, facilitate the sale or offer 
        to sell, or provide drug paraphernalia to any person;''.
            (2) in subsection (b)--
                    (A) by inserting ``(1)'' after ``(b)''; and
                    (B) by adding at the end the following:
            ``(2) Any person who violates subsection (a) by selling, 
        offering for sale, facilitating the sale or offer for sale, or 
        providing drug paraphernalia to any person under the age of 18 
        or to any person knowing that it is intended to be provided to 
        or used by a person under the age of 18 years, or any person 
        who violates subsection (a) by transporting, importing, or 
        exporting drug paraphernalia knowing that it is intended to be 
        provided to or used by a person under the age of 18 years, 
        shall be imprisoned for not less than 2 years nor more than 10 
        years.''.
    (m) Further Protection for Children.--
            (1) In general.--Part D of the Controlled Substances Act is 
        amended by adding at the end the following:

     ``failure to protect children from drug trafficking activities

    ``Sec. 425. (a) It shall be unlawful for any person who witnesses 
or learns of a violation of sections 416(b)(2), 417, 418, 419, 420, 
424, or 426 to fail to report the offense to law enforcement officials 
within 24 hours of witnessing or learning of the violation and 
thereafter provide full assistance in the investigation, apprehension, 
and prosecution of the person violating paragraph (a).
    ``(b) Any person who violates subsection (a) of this section shall 
be sentenced to not less than two years or more than 10 years. If the 
person who witnesses or learns of the violation is the parent or 
guardian, or otherwise responsible for the care or supervision of the 
person under the age of 18 or the incompetent person, such person shall 
be sentenced to not less than three years or more than 20 years.''.
            (2) Clerical amendment.--The table of sections for the 
        Comprehensive Drug Abuse Prevention and Control Act of 1970 is 
        amended by inserting after the item relating to section 423 the 
        following new item:

``Sec. 425. Failure to protect children from drug trafficking 
                            activities.''.
    (n) Sentencing Guidelines.--
            (1) Not later than 120 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--
                    (A) for 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, 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 an incompetent person, 
                or in a location in which a person under the age of 18 
                or an incompetent person resides for any period of 
                time, or if any of the offense or relevant conduct 
                involved conduct constituting an offense under section 
                416(b)(2), 417, 418, 419, 420, 422, 424, 425, or 426 of 
                the Controlled Substances Act (whether or not 
                charged)--
                            (i) section 5C1.2 of the guidelines shall 
                        not apply;
                            (ii) the base offense level is increased by 
                        at least 2 levels. Such increase shall be in 
                        addition to any applicable increase under 
                        section 2D1.1(b)(5)(C) or 2D1.10(b)(1)(B); and
                            (iii) 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 or the incompetent person the base 
                        offense level is increased by at least 4 
                        levels. Such increase shall be in addition to 
                        any applicable increase under section 
                        2D1.1(b)(5)(C) or 2D1.10(b)(1)(B); and
                    (B) the Guidelines Manual is amended in section 
                2D1.1(b)(5)(C) and section 2D1.10(b)(1)(B) to provide 
                for an increase of 8 levels when the defendant was the 
                parent or guardian, or otherwise responsible for the 
                care or supervision of the person under the age of 18 
                or the incompetent person.
            (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);
                    (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 incompetent person; or in a location in which 
        a person under the age of 18 or incompetent person resides for 
        any period of time; or if any of the offense or relevant 
        conduct involved conduct constituting an offense under section 
        416(b)(2), 417, 418, 419, 420, 422, 424, 425, or 426 of the 
        Controlled Substances Act (whether or not charged); and ''.
            (3) Section 3553 of title 18, United States Code, is 
        amended by adding at the end the following:
    ``(g) As used in subsection (f), the term `incompetent person' 
means an individual who is incapable of taking care of the individual's 
self or property because of mental or physical illness or disability, 
mental retardation, or senility. ''.

SEC. 3. 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 November 1, 2004, is amended--
            (1) in section 2D1.1(a)(3) by striking ``, except'' and all 
        that follows and inserting a period after ``(c)'';
            (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 (7) 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.--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.

SEC. 4. PROTECTING PERSONS IN DRUG TREATMENT.

    (a) In General.--Part D of the Controlled Substances Act is amended 
by adding at the end the following:

               ``protection of persons in drug treatment

    ``Sec. 426. (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 
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 years. 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 401(b)(1)(A). The mandatory 
minimum sentencing provisions of this paragraph shall not apply to 
first offenses involving 5 grams or less of marijuana.
    ``(b) Whoever intentionally offers, solicits, entices, persuades, 
encourages, induces, or coerces a person enrolled in a drug treatment 
program or facility, or who is under a court order to enroll in, or who 
has previously been enrolled in, a drug treatment program or facility, 
to purchase, receive, or possess a controlled substance, or attempts or 
conspires to do so, shall, except to the extent that a greater minimum 
sentence is provided for, 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 years or more than life. 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 401(b)(1)(A).
    ``(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.''.

SEC. 5. CONFORMING GUIDELINE SENTENCING TO CONSPIRACY LAW.

    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 relevant conduct under 
section 1B1.2 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, includes 
the conduct of members of the conspiracy in furtherance of the 
conspiracy before the defendant joined the conspiracy that was known to 
the defendant before joining the conspiracy, and includes the conduct 
of members of the conspiracy in furtherance of the conspiracy during 
the defendant's participation in the conspiracy that was known to the 
defendant or was reasonably foreseeable (whether or not a conspiracy 
was charged).

SEC. 6. 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, as amended by 
section 2 of this Act, is further amended--
            (1) by inserting ``(1)'' before ``Notwithstanding'' ;
            (2) by redesignating paragraphs (1) through (6) as 
        subparagraphs (A) through (F);
            (3) so that subparagraph (F), as so redesignated, reads as 
        follows:
                    ``(F) 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 
                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.'';
            (4) by striking ``court shall impose a sentence pursuant to 
        the guidelines promulgated by the United States Sentencing 
        Commission under section 994 of title 28 without regard to any 
        statutory minimum sentence'' and inserting ``court shall have 
        the authority to impose a sentence pursuant to subsection (a), 
        without regard to any statutory minimum sentence, provided that 
        the sentence includes a term of imprisonment that is not below 
        the bottom of the range described in subsection (a)(4)''; and
            (5) by inserting at the end the following:
            ``(2) The provisions of paragraph (1) are not severable and 
        if any provision of that paragraph, or the application of such 
        provision to any person or circumstances, is held invalid, the 
        entirety of such paragraph shall to the same extent become 
        utterly invalid and unenforceable and shall not be applied, and 
        the court shall instead impose a sentence not less than that 
        required by any applicable statutory minimum sentence 
        prescribed for such offense.''.

SEC. 7. 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 
28, 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 
        416(b)(2), 417, 418, 419, 420, 422, 424, 425, or 426 of the 
        Controlled Substances Act (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.

SEC. 8. 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 
28, 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.

SEC. 9. 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.''.

SEC. 10. PROTECTING HUMAN LIFE AND ASSURING CHILD SAFETY.

    (a) In General.--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,'' before ``creates'';
            (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)(1) Whoever violates subsection (a) by creating a substantial 
risk of harm to a person under the age of 18 or incompetent person, 
shall be fined in accordance with title 18, United States Code, or 
imprisoned not less than 5 years, nor more than life, or both.
    ``(2) As used in this section, the term `incompetent person' means 
an individual who is incapable of taking care of the individual's self 
or property because of mental or physical illness or disability, mental 
retardation, or senility. ''.
    (b) Sentencing Guidelines.--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 section 2D1.1(b)(6)(B) and (C) apply if the offense 
involved the manufacture of any controlled substance.

SEC. 11. 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 striking ``or 420'';
            (2) by inserting ``420, 424, 425, or 426'' after ``419,''; 
        and
            (3) 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 drug 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 409, 416, 417, 
        418, 419, 420, 422, 424, 425, or 426 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.''.

SEC. 12. SENTENCING PROTECTIONS.

    (a) Generally.--Section 3553 of title 18 United States Code, is 
amended--
            (1) in subsection (a)(1) by inserting ``, except as 
        otherwise provided in subsection (g),'' before ``the history'';
            (2) in subsection (a)(2)--
                    (A) by inserting ``and'' at the end of subparagraph 
                (B);
                    (B) by striking ``and'' at the end of subparagraph 
                (C); and
                    (C) by striking subparagraph (D);
            (3) by adding at the end the following:
    ``(g) Limitations on Consideration of Factors.--(1) In imposing a 
sentence, the court shall not consider a defendant's race, sex, 
national origin, creed, religion, or socioeconomic status.
    ``(2) The court may consider the following factors only as may be 
required in calculating the range referred to in subsection (a)(4) or 
with respect to the imposition of a sentence at or above the bottom of 
that range, and shall not otherwise consider them in imposing a 
sentence:
                            ``Defendant's criminal history.
                            ``The absence of a criminal record.
                            ``Family ties and responsibilities.
                            ``Vocational skills.
                            ``Mental and emotional condition.
                            ``Drug or alcohol dependence or abuse.
                            ``Employment record.
                            ``Charitable contributions or civic, 
                        military, or public service, or good works.
                            ``Employment-related contributions.
                            ``Record of prior good works.
                            ``The need to provide the defendant with 
                        educational or vocational training, medical 
                        care, or other correctional treatment in the 
                        most effective manner.
                            ``Role in the offense.
                            ``A sentence or likely sentence which a 
                        defendant would receive if convicted of the 
                        same or similar offense under the law of any 
                        State.
                            ``Reports or recommendations of the 
                        Sentencing Commission to Congress.
                            ``Post-offense or post-sentencing 
                        rehabilitation.
                            ``Acceptance of responsibility.
                            ``Extreme remorse.
                            ``Voluntary cessation of criminal conduct 
                        before discovery.
                            ``Effect of defendant's incarceration on 
                        others.
                            ``Collateral consequences of defendant's 
                        arrest, conviction, or incarceration, including 
                        criminal or civil forfeiture, judgment in a 
                        civil action, loss of a professional or 
                        business license, loss of public office, 
                        deportation upon release, or agreement to be 
                        deported.
                            ``Aberrant behavior.
                            ``Having made restitution.
                            ``Ability to make restitution or 
                        facilitation of ability to make restitution.
                            ``Likelihood of recidivism.
                            ``Compliance with conditions of pretrial or 
                        presentencing release.
                            ``Age, other than in the case of a 
                        defendant who is elderly and infirm.
                            ``That the defendant plead guilty or 
                        entered into a plea agreement.
                            ``Lack of guidance as a youth.
                            ``Disadvantaged or abusive upbringing.
                            ``Gambling addiction.
                            ``The absence of an aggravating factor 
                        including those set forth in the sentencing 
                        guidelines and policy statements issued under 
                        section 994(a) of title 28, United States Code.
                            ``Personal or business financial 
                        difficulties and economic pressures.
                            ``The court's personal opinion concerning 
                        the guidelines or the guideline range.
                            ``Delay in prosecution.
                            ``That the defendant entered a plea 
                        agreement believing that his ultimate sentence 
                        would be lower than that required by the 
                        guidelines or by statute.
                            ``Any other factor as determined by the 
                        sentencing commission and identified in the 
                        sentencing guidelines and policy statements 
                        issued under section 994(a) of title 28, United 
                        States Code.
    ``(3) Unless the Government makes a motion, asking for a sentence 
below the range referred to in subsection (a)(4), and stating that the 
defendant has provided substantial assistance in the investigation or 
prosecution of another person who has committed an offense, the court 
shall not, based on a consideration of the defendant's cooperation with 
or assistance to the Government or on the extent of that cooperation 
and assistance, impose a sentence below the range referred to in 
subsection (a)(4). If the Government makes such a motion, the court 
may, based on a consideration of the facts relating to that assistance, 
impose a sentence below the range referred to in subsection (a)(4).
    ``(h)(1) Other than a sentence imposed as a result of a motion of 
the Government stating that the defendant has provided substantial 
assistance in the investigation or prosecution of another person who 
has committed an offense or as a result of, and pursuant to, an early 
disposition program established by the Attorney General pursuant to 
section 401(m)(2)(B) of the PROTECT Act (Public Law 108-21), the court 
may impose a sentence below the range referred to in subsection (a)(4) 
only after--
            ``(A) providing the parties with 20 days written notice of 
        its intention to impose a particular sentence below the range 
        referred to in subsection (a)(4) and setting forth the 
        particular proposed sentence, the specific factors which 
        support such a sentence, how such a sentence is reasonable and 
        how such a sentence avoids unwarranted sentence disparities 
        among Federal defendants with similar records who have been 
        found guilty of similar conduct; and
            ``(B) permitting the parties to submit briefs in support or 
        opposition to such intended sentence and conducting a full 
        evidentiary hearing to consider both the reasonableness of the 
        particular intended sentence and the unwarranted disparity 
        resulting from the particular sentence.
    ``(2) Information, including sentencing information from the 
Sentencing Commission, with respect to within-the-range sentencing 
numbers and cases for similarly situated defendants shall be fully 
admissible. Information regarding a sentence or likely sentence which a 
defendant would receive if convicted of the same or similar offense 
under the law of any State, sentences imposed on other defendants as 
result of a motion of the government asking for a sentence below the 
range referred to in subsection (a)(4) and stating that the defendant 
has provided substantial assistance in the investigation or prosecution 
of another person who has committed an offense, or as a result of, and 
pursuant to, an early disposition program established by the Attorney 
General pursuant to section 401(m)(2)(B) of the PROTECT Act (Public Law 
108-21) shall not be admissible and shall not form a basis to support a 
sentence below the range referred to in subsection (a)(4).
    ``(3) Factors supporting a sentence below the range referred to in 
subsection (a)(4) shall be supported and shown by clear and convincing 
evidence.''; and
            (4) in subsection (c)--
                    (A) in paragraph (2)--
                            (i) by striking ``which reasons must also'' 
                        and inserting ``, and if the sentence is below 
                        the range described in subsection (a) (4), 
                        other than as a result of a motion by the 
                        government asking for a sentence below the 
                        range and stating that the defendant has 
                        provided substantial assistance in the 
                        investigation or prosecution of another person 
                        who has committed an offense, or as a result 
                        of, and pursuant to, an early disposition 
                        program established by the Attorney General 
                        pursuant to section 401(m)(2)(B) of the PROTECT 
                        Act (Public Law 108-21) the court shall also 
                        provide a justification of the reasonableness 
                        of the sentence, and a detailed explanation as 
                        to how the sentence avoids unwarranted 
                        sentencing disparities among Federal defendants 
                        with similar records who have been found guilty 
                        of similar conduct, each of which must be 
                        supported and shown by clear and convincing 
                        evidence and''; and
                            (ii) by striking ``except to the extent'' 
                        and all that follows through ``such 
                        statements''; and
                    (B) by striking the comma which immediately follows 
                another comma.
    (b) Assuring Judicial Administrative Responsibilities Are Performed 
by the Judicial Branch.--Section 994(w)(1) of title 28, United States 
Code, is amended--
            (1) by inserting ``(other than a case involving a sentence 
        imposed for a petty offense, as defined in section 19 of title 
        18, for which there is no applicable sentencing guideline)'' 
        after ``every criminal case''; and
            (2) by adding at the end the following: ``The duties and 
        responsibilities set forth herein, or any portion thereof, 
        shall not be delegated to the executive branch.''.
    (c) Conforming Amendments.--(1) Section 3661 of title 18, United 
States Code, is amended by striking ``No'' and inserting ``Except as 
provided in section 3553(g) or (h), no''.
    (2) Section 410 of the Controlled Substances Act (21 U.S.C. 850), 
is amended by striking ``section 303(a) of the Public Health Service 
Act'' and by inserting ``in section 3553(g) of title 18, United States 
Code''.
                                 <all>