[House Report 108-48]
[From the U.S. Government Publishing Office]



108th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     108-48
======================================================================
 
     PROVIDING FOR CONSIDERATION OF H.R. 1104, THE CHILD ABDUCTION 
                         PREVENTION ACT OF 2003

                                _______
                                

   March 25, 2003.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

   Mrs. Myrick, from the Committee on Rules, submitted the following

                              R E P O R T

                       [To accompany H. Res. 160]

    The Committee on Rules, having had under consideration 
House Resolution 160, by a nonrecord vote, report the same to 
the House with the recommendation that the resolution be 
adopted.

                SUMMARY OF PROVISIONS OF THE RESOLUTION

    The resolution provides for consideration of House 
Resolution 1104, the Child Abduction Prevention Act of 2003, 
under a structured rule. The rule provides one hour of general 
debate, with forty-five minutes equally divided and controlled 
by the chairman and ranking minority member of the Committee on 
the Judiciary and fifteen minutes equally divided and 
controlled by the chairman and ranking minority member of the 
Committee on Education and the Workforce. The rule waives all 
points of order against consideration of the bill. The rule 
provides that the amendment in the nature of a substitute 
recommended by the Committee on the Judiciary now printed in 
the bill shall be considered as an original bill for the 
purpose of amendment and shall be considered as read. The rule 
waives all points of order against the amendment in the nature 
of a substitute recommended by the Committee on the Judiciary 
now printed in the bill.
    The rule makes in order only those amendments printed in 
this report. The amendments made in order may be offered only 
in the order printed in this report, may be offered only by a 
Member designated in this report, shall be considered as read, 
shall be debatable for the time specified in this report 
equally divided and controlled by the proponent and an 
opponent, shall not be subject to amendment, and shall not be 
subject to a demand for a division of the question in the House 
or in the Committee of the Whole. The rule provides that all 
points of order against such amendments are waived. The rule 
provides one motion to recommit with or without instructions.
    The rule also provides that after passage of House 
Resolution 1104, it shall be in order to consider in the House 
the bill S. 151, to move to strike all after the enacting 
clause of S. 151, and to insert the provisions of House 
Resolution 1104, as passed by the House. The rule waives all 
points of order against consideration of the Senate bill and 
the motion to strike and insert. The rule provides that if the 
motion is adopted and the Senate bill, as amended, is passed, 
that it shall be in order to move that the House insist on its 
amendments and request a conference.
    The waiver of all points of order against consideration of 
the bill in the rule includes a waiver of clause 4(a) of rule 
XIII (requiring a three-day layover of the committee report), 
which is necessary because the committee report was not filed 
until Monday, March 24, 2003, and the bill may be considered by 
the House as early as Wednesday, March 26, 2003.

                            COMMITTEE VOTES

    Pursuant to clause 3(b) of House rule XIII the results of 
each record vote on an amendment or motion to report, together 
with the names of those voting for and against, are printed 
below:

Rules Committee Record Vote No. 41

    Date: March 25, 2003.
    Measure: H.R. 1104, Child Abduction Prevention Act of 2003.
    Motion by: Mr. Frost.
    Summary of motion: To make in order a second rule as a new 
section three in the rule. That rule would provide for the 
consideration of S. 121.
    Results: Defeated 4 to 9.
    Vote by Members: Goss--Nay; Linder--Nay; Pryce--Nay; Diaz-
Balart--Nay; Hastings (WA)--Nay; Myrick--Nay; Sessions--Nay; 
Reynolds--Nay; Frost--Yea; Slaughter--Yea; McGovern--Yea; 
Hastings (FL)--Yea; Dreier--Nay.

Rules Committee Record Vote No. 42

    Date: March 25, 2003.
    Measure: H.R. 1104, Child Abduction Prevention Act of 2003.
    Motion by: Mrs. Slaughter.
    Summary of motion: To make in order the amendment offered 
by Representative Weiner which increases grants for the 
analysis of DNA samples from rape kits and crime scenes. 
Specifically authorizes $25 million for the analysis of crime 
scene samples in FY04. Re-authorizes the program through 2008, 
increases funding to $75 million annually through 2007 and $25 
million in 2008. Also increases grants for the analysis of DNA 
samples from convicted offenders and creates new grant programs 
to train sexual assault nurse examiners and improve the 
collection of DNA evidence.
    Results: Defeated 4 to 9.
    Vote by Members: Goss--Nay; Linder--Nay; Pryce--Nay; Diaz-
Balart--Nay; Hastings (WA)--Nay; Myrick--Nay; Sessions--Nay; 
Reynolds--Nay; Frost--Yea; Slaughter--Yea; McGovern--Yea; 
Hastings (FL)--Yea; Dreier--Nay.

SUMMARY OF AMENDMENTS MADE IN ORDER FOR H.R. 1104--THE CHILD ABDUCTION 
                         PREVENTION ACT OF 2003

    1. Pence: Makes it a criminal act to knowingly use a 
misleading domain name with the intent to deceive a person into 
viewing obscenity on the Internet. Also makes it a criminal act 
to knowingly use a misleading domain name with the intent to 
deceive a minor into viewing material on the Internet that is 
harmful to minors. A domain name that includes a word or words 
to indicate the sexual content of the site is not considered 
misleading. (10 minutes)
    2. Feeney: Places strict limits on departures from federal 
sentencing guidelines by allowing sentences outside the 
guideline range only upon grounds specifically enumerated as 
proper for departure. Requires courts to give specific and 
written reasons for any departure from federal sentencing 
guidelines. Changes the standard of review for appellate courts 
to a de novo review to allow appellate courts to more 
effectively review illegal and inappropriate downward 
departures from federal sentencing guidelines. Prevents 
sentencing courts, upon remand, from imposing the same illegal 
departure on a different theory. Only allows courts to reduce a 
person's sentence for ``acceptance of responsibility'' when the 
government agrees with that finding. Amends sentencing 
guidelines with regard to the penalties for possession of child 
pornography by increasing penalties if the offense involved 
material that portrays sadistic or masochistic conduct or other 
depictions of violence and by increasing penalties based on the 
amount of child pornography involved in the offense. (20 
minutes)
    3. Pomeroy: Re-authorizes grant programs within the Victims 
of Child Abuse Act that provide funding to child advocacy 
centers and training and technical assistance to programs to 
improve the prosecution of child abuse cases. Adds tools for 
the Department of Justice to evaluate these grant programs to 
ensure effective use of the funds provided. (10 minutes)
    4. Foley: Requires AMBER Alert coordinator to submit a 
report by March 1, 2005, to Congress on the effectiveness and 
status of the AMBER Alert plans that each state has 
implemented. Establishes $5 million grant program to assist 
states in implementing new technologies designed to improve the 
dissemination of AMBER Alerts. (10 minutes)
    5. Carter: Provides a feasibility study of issues relating 
to background checks for volunteers of groups that work with 
children, the disabled, and the elderly. (10 minutes)
    6. Lampson: Provides explicit statutory jurisdiction to the 
U.S. Secret Service to continue to provide forensic and 
investigative support upon request from local law enforcement 
or from the National Center for Missing and Exploited Children 
(NCMEC). (10 minutes)
    7. Acevedo-Vila: Requires certain procedures to be 
established and followed when a child is reported lost or 
missing in a public building. Commonly known as a ``Code Adam'' 
alert. (10 minutes)
    8. Smith (TX): Narrows definition of child pornography in 
response to Ashcroft v. the Free Speech Coalition. Creates new 
obscenity offenses to cover virtual and real child pornography 
that involves visual depictions of prepubescent children and 
minors. Creates a new offense against pandering visual 
depictions as child pornography and strengthens penalties for 
repeat offenders. Includes new findings that detail the effect 
of the Supreme Court decision on child pornography cases, as 
well as some technical changes. Requires the Attorney General 
to report on the Department of Justice's efforts to enforce the 
record-keeping requirements for producers of adult material to 
demonstrate they are not using minors. (20 minutes)

                    TEXT OF AMENDMENTS MADE IN ORDER

 1. An Amendment To Be Offered by Representative Pence of Indiana, or 
                 His Designee, Debatable for 10 Minutes

  At the end of title I (page ____, after line ____), insert 
the following:

SEC. 108. MISLEADING DOMAIN NAMES ON THE INTERNET.

  (a) In General.--Chapter 110 of title 18, United States Code, 
is amended by inserting after section 2252A the following:

``Sec. 2252B. Misleading domain names on the Internet

  ``(a) Whoever knowingly uses a misleading domain name with 
the intent to deceive a person into viewing obscenity on the 
Internet shall be fined under this title or imprisoned not more 
than 2 years, or both.
  ``(b) Whoever knowingly uses a misleading domain name with 
the intent to deceive a minor into viewing material that is 
harmful to minors on the Internet shall be fined under this 
title or imprisoned not more than 4 years, or both.
  ``(c) For the purposes of this section, a domain name that 
includes a word or words to indicate the sexual content of the 
site, such as `sex' or `porn', is not misleading.
  ``(d) For the purposes of this section, the term `material 
that is harmful to minors' means any communication that--
          ``(1) taken as a whole and with respect to minors, 
        appeals to a prurient interest in nudity, sex, or 
        excretion;
          ``(2) depicts, describes, or represents, in a 
        patently offensive way with respect to what is suitable 
        for minors, an actual or simulated sexual act or sexual 
        contact, actual or simulated normal or perverted sexual 
        acts, or a lewd exhibition of the genitals; and
          ``(3) taken as a whole, lacks serious literary, 
        artistic, political, or scientific value as to 
        minors.''.
  (b) Clerical Amendment.--The table of sections at the 
beginning of chapter 110 of title 18, United States Code, is 
amended by inserting after the time relating to section 2252A 
the following new item:

``2252B. False or misleading domain names on the Internet.''.

 2. An Amendment To Be Offered by Representative Feeney of Florida, or 
                 His Designee, Debatable for 20 Minutes

  At the end of title I (page ____, after line ____), insert 
the following:

SEC. ____. SENTENCING REFORM.

  (a) Requirement To Specify in the Guidelines the Grounds Upon 
Which Downward Departures May Be Granted.--Section 3553(b) of 
title 18, United States Code, is amended to read as follows:
  ``(b) Application of Guidelines in Imposing a Sentence.--The 
court shall impose a sentence of the kind, and within the 
range, referred to in subsection (a)(4) unless the court finds 
that--
          ``(1) there exists an aggravating circumstance of a 
        kind, or to a degree, not adequately taken into 
        consideration by the Sentencing Commission in 
        formulating the guidelines that should result in a 
        sentence different from that described; or
          ``(2) there exists a mitigating circumstance of a 
        kind, or to a degree, that--
                  ``(A) has been affirmatively and specifically 
                identified as a permissible ground of downward 
                departure in the sentencing guidelines or 
                policy statements issued under section 994(a) 
                of title 28, United States Code, taking account 
                of any amendments to such sentencing guidelines 
                or policy statements by act of Congress;
                  ``(B) has not adequately been taken into 
                consideration by the Sentencing Commission in 
                formulating the guidelines; and
                  ``(C) should result in a sentence different 
                from that described.
In determining whether a circumstance was adequately taken into 
consideration, the court shall consider only the sentencing 
guidelines, policy statements, and official commentary of the 
Sentencing Commission, together with any amendments thereto by 
act of Congress. In the absence of an applicable sentencing 
guideline, the court shall impose an appropriate sentence, 
having due regard for the purposes set forth in subsection 
(a)(2). In the absence of an applicable sentencing guideline in 
the case of an offense other than a petty offense, the court 
shall also have due regard for the relationship of the sentence 
imposed to sentences prescribed by guidelines applicable to 
similar offenses and offenders, and to the applicable policy 
statements of the Sentencing Commission, together with any 
amendments to such guidelines or policy statements by act of 
Congress.''.
  (b) Reform of Existing Permissible Grounds of Downward 
Departures.--Subject to subsection (j), the Guidelines Manual 
promulgated by the Sentencing Commission pursuant to section 
994(a) of title 28, United States Code, is amended as follows:
          (1) Section 5K2.0 is amended as follows:
                  (A) Strike the first and second paragraphs of 
                the Commentary to section 5K2.0 in their 
                entireties.
                  (B) Strike ``departure'' every place it 
                appears and insert ``upward departure''.
                  (C) Strike ``depart'' every place it appears 
                and insert ``depart upward''.
                  (D) In the first sentence of section 5K2.0--
                          (i) strike ``outside'' and insert 
                        ``above'';
                          (ii) strike ``or mitigating''; and
                          (iii) strike ``Under'' and insert:
  ``(a) Upward Departures.--
Under''.
                  (E) In the last sentence of the first 
                paragraph of section 5K2.0, strike ``or 
                excessive''.
                  (F) Immediately before the Commentary to 
                section 5K2.0, insert the following:
  ``(b) Downward Departures.--
``Under 18 U.S.C. Sec. 3553(b)(2), the sentencing court may 
impose a sentence below the range established by the applicable 
guidelines only if the court finds that there exists a 
mitigating circumstance of a kind, or to a degree, that--
        ``(1) has been affirmatively and specifically 
        identified as a permissible ground of downward 
        departure in the sentencing guidelines or policy 
        statements issued under section 994(a) of title 28, 
        United States Code, taking account of any amendments to 
        such sentencing guidelines or policy statements by act 
        of Congress;
        ``(2) has not adequately been taken into consideration 
        by the Sentencing Commission in formulating the 
        guidelines; and
        ``(C) should result in a sentence different from that 
        described.
``The grounds enumerated in this Part K of chapter 5 are the 
sole grounds that have been affirmatively and specifically 
identified as a permissible ground of downward departure in 
these sentencing guidelines and policy statements. Thus, 
notwithstanding any other reference to authority to depart 
downward elsewhere in this Sentencing Manual, a ground of 
downward departure has not been affirmatively and specifically 
identified as a permissible ground of downward departure within 
the meaning of section 3553(b)(2) unless it is expressly 
enumerated in this Part K as a ground upon which a downward 
departure may be granted.''.
          (2) At the end of part K of chapter 5, add the 
        following new sections:

``Sec. 5K2.22 Specific Offender Characteristics as Grounds for Downward 
                    Departure (Policy Statement)

``Age may be a reason to impose a sentence below the applicable 
guideline range only if and to the extent permitted by 
Sec. 5H1.1.
``An extraordinary physical impairment may be a reason to 
impose a sentence below the applicable guideline range only if 
and to the extent permitted by Sec. 5H1.4. Drug, alcohol, or 
gambling dependence or abuse is not a reason for imposing a 
sentence below the guidelines.

``Sec. 5K2.23 Early Disposition Programs as a Ground for Downward 
                    Departure (Policy Statement)

``Upon motion of the government stating that:
        ``(1) due to extraordinary resource constraints, not 
        typical of most districts, associated with the 
        disproportionately high incidence of illegal reentry or 
        other specific offenses within a particular district, 
        the Attorney General has formally certified that the 
        district is authorized to implement an early 
        disposition program with respect to those specific 
        categories of offenses;
        ``(2) pursuant to such specific authorization, the 
        United States Attorney for the district has implemented 
        such an early disposition program with respect to the 
        category of offense for which the defendant has been 
        convicted;
        ``(3) pursuant to such an early disposition program, 
        the defendant, within 30 days of his or her first 
        appearance before a judicial officer in connection with 
        such a charge, entered into a plea agreement whereby he 
        or she agrees, inter alia--
                ``(A) not to file any of the motions described 
                in Federal Rule of Criminal Procedure 12(b)(3);
                ``(B) to waive appeal;
                ``(C) to waive the opportunity to pursue 
                collateral relief under 28 U.S.C. Sec. Sec.  
                2254 and 2555, including ineffective assistance 
                of counsel claims; and
                ``(D) if an alien, to submit to uncontested 
                removal from the United States upon completion 
                of any sentence of imprisonment;
        ``(4) the plea agreement contemplates that the 
        government will move for a downward departure based on 
        the defendant's prompt agreement to enter into such an 
        early disposition plea agreement; and
        ``(5) the defendant has fully satisfied the conditions 
        of such plea agreement,
then, if the court finds that these conditions have been met 
and also finds that the defendant has received the maximum 
adjustment for which he is eligible (given his offense level) 
under Sec.  3E1.1, the court may depart downward from the 
guidelines under this section only to the extent agreed to by 
the parties in the plea agreement, which in no event shall 
exceed 4 levels.

                              ``Commentary

  ``Several districts, particularly on the southwest border, 
have early disposition programs that allow them to process very 
large numbers of cases with relatively limited resources. Such 
programs are based on the premise that a defendant who promptly 
agrees to participate in such a program has saved the 
government significant and scarce resources that can be used in 
prosecuting other defendants and has demonstrated an acceptance 
of responsibility above and beyond what is already taken into 
account by the adjustments contained in Sec. 3E1.1. This 
section preserves the authority to grant limited departures 
pursuant to such programs. In order to avoid unwarranted 
sentencing disparities within a given district, any departure 
under this section must be pursuant to a formal program that is 
approved by the United States Attorney and that applies 
generally to a specified class of offenders. Authorization for 
the district to establish an early disposition program must 
also have been specifically conferred by the Attorney General, 
and may be granted only with respect to those particular 
classes of offenses (such as illegal reentry) whose high 
incidence within the district has imposed an extraordinary 
strain on the resources of that district as compared to other 
districts. To be eligible for the departure, the plea agreement 
under the program must reflect that the defendant has agreed to 
an expeditious plea, as described. A defendant who has not 
received any adjustment for acceptance of responsibility under 
Sec.  3E1.1 cannot receive a departure under this provision. A 
defendant whose offense level makes him eligible for the 
additional adjustment under Sec.  3E1.1(b), but who fails to 
satisfy the requirements for such an adjustment, is likewise 
ineligible for a departure under this provision. This section 
does not confer authority to depart downward on an ad hoc basis 
in individual cases. Moreover, because the Government's 
affirmative acquiescence is essential to the fair and efficient 
operation of an early disposition program, a departure under 
this section may only be granted upon a formal motion by the 
Government at the time of sentencing. Nothing in this section 
authorizes a sentence below a statutory mandatory minimum.''.
          (3) Section 5K2.20 is deleted.
          (4) Section 5H1.6 and section 5H1.11 are each amended 
        by striking ``ordinarily'' every place it appears.-
          (5) Section 5K2.13 is amended by--
                  (A) striking ``or'' before ``(3)''; and
                  (B) replacing ``public'' with ``public; or 
                (4) the defendant has been convicted of an 
                offense under chapter 71, 109A, 110, or 117 of 
                title 18, United States Code.''.
  (c) Statement of Reasons for Imposing a Sentence.--Section 
3553(c) of title 18, United States Code, is amended--
          (1) by striking ``described.'' and inserting 
        ``described, which reasons must also be stated with 
        specificity in the written order of judgment and 
        commitment, except to the extent that the court relies 
        upon statements received in camera in accordance with 
        Federal Rule of Criminal Procedure 32. In the event 
        that the court relies upon statements received in 
        camera in accordance with Federal Rule of Criminal 
        Procedure 32 the court shall state that such statements 
        were so received and that it relied upon the content of 
        such statements.'';
          (2) by inserting ``, together with the order of 
        judgment and commitment,'' after ``the court's 
        statement of reasons''; and
          (3) by inserting ``and to the Sentencing 
        Commission,'' after ``to the Probation System''.
  (d) Review of a Sentence.--
          (1) Review of departures.--Section 3742(e)(3) of 
        title 18, United States Code, is amended to read as 
        follows:
          ``(3) is outside the applicable guideline range, and
                  ``(A) the district court failed to provide 
                the written statement of reasons required by 
                section 3553(c);
                  ``(B) the sentence departs from the 
                applicable guideline range based on a factor 
                that--
                          ``(i) does not advance the objectives 
                        set forth in section 3553(a)(2); or
                          ``(ii) is not authorized under 
                        section 3553(b); or
                          ``(iii) is not justified by the facts 
                        of the case; or
                  ``(C) the sentence departs to an unreasonable 
                degree from the applicable guidelines range, 
                having regard for the factors to be considered 
                in imposing a sentence, as set forth in section 
                3553(a) of this title and the reasons for the 
                imposition of the particular sentence, as 
                stated by the district court pursuant to the 
                provisions of section 3553(c); or''.
          (2) Standard of review.--The last paragraph of 
        section 3742(e) of title 18, United States Code, is 
        amended by striking ``shall give due deference to the 
        district court's application of the guidelines to the 
        facts'' and inserting ``, except with respect to 
        determinations under subsection (3)(A) or (3)(B), shall 
        give due deference to the district court's application 
        of the guidelines to the facts. With respect to 
        determinations under subsection (3)(A) or (3)(B), the 
        court of appeals shall review de novo the district 
        court's application of the guidelines to the facts''.
          (3) Decision and disposition.--
                  (A) The first paragraph of section 3742(f) of 
                title 18, United States Code, is amended by 
                striking ``the sentence'';
                  (B) Section 3742(f)(1) of title 18, United 
                States Code, is amended by inserting ``the 
                sentence'' before ``was imposed'';
                  (C) Section 3742(f)(2) of title 18, United 
                States Code, is amended to read as follows:
          ``(2) the sentence is outside the applicable 
        guideline range and the district court failed to 
        provide the required statement of reasons in the order 
        of judgment and commitment, or the departure is based 
        on an impermissible factor, or is to an unreasonable 
        degree, or the sentence was imposed for an offense for 
        which there is no applicable sentencing guideline and 
        is plainly unreasonable, it shall state specific 
        reasons for its conclusions and--
                  ``(A) if it determines that the sentence is 
                too high and the appeal has been filed under 
                subsection (a), it shall set aside the sentence 
                and remand the case for further sentencing 
                proceedings with such instructions as the court 
                considers appropriate, subject to subsection 
                (g);
                  ``(B) if it determines that the sentence is 
                too low and the appeal has been filed under 
                subsection (b), it shall set aside the sentence 
                and remand the case for further sentencing 
                proceedings with such instructions as the court 
                considers appropriate, subject to subsection 
                (g);''; and
                  (D) Section 3742(f)(3) of title 18, United 
                States Code, is amended by inserting ``the 
                sentence'' before ``is not described''.
  (e) Imposition of Sentence Upon Remand.--
  Section 3742 of title 18, United States Code, is amended by 
redesignating subsections (g) and (h) as subsections (h) and 
(i) and by inserting the following after subsection (f):
  ``(g) Sentencing Upon Remand.--A district court to which a 
case is remanded pursuant to subsection (f)(1) or (f)(2) shall 
resentence a defendant in accordance with section 3553 and with 
such instructions as may have been given by the court of 
appeals, except that--
          ``(1) In determining the range referred to in 
        subsection 3553(a)(4), the court shall apply the 
        guidelines issued by the Sentencing Commission pursuant 
        to section 994(a)(1) of title 28, United States Code, 
        and that were in effect on the date of the previous 
        sentencing of the defendant prior to the appeal, 
        together with any amendments thereto by any act of 
        Congress that was in effect on such date; and
          ``(2) The court shall not impose a sentence outside 
        the applicable guidelines range except upon a ground 
        that--
                  ``(A) was specifically and affirmatively 
                included in the written statement of reasons 
                required by section 3553(c) in connection with 
                the previous sentencing of the defendant prior 
                to the appeal; and
                  ``(B) was held by the court of appeals, in 
                remanding the case, to be a permissible ground 
                of departure.''.
  (f) Definitions.--Section 3742 of title 18, United States 
Code, as amended by subsection (e), is further amended by 
adding at the end the following:
  ``(j) Definitions.--For purposes of this section--
          ``(1) a factor is a `permissible' ground of departure 
        if it--
                  ``(A) advances the objectives set forth in 
                section 3553(a)(2); and
                  ``(B) is authorized under section 3553(b); 
                and
                  ``(C) is justified by the facts of the case; 
                and
          ``(2) a factor is an `impermissible' ground of 
        departure if it is not a permissible factor within the 
        meaning of subsection (j)(1).''.
  (g) Reform of Guidelines Governing Acceptance of 
Responsibility.--Subject to subsection (j), the Guidelines 
Manual promulgated by the Sentencing Commission pursuant to 
section 994(a) of title 28, United States Code, is amended--
          (1) in section 3E1.1(b)--
                  (A) by inserting ``upon motion of the 
                government stating that'' immediately before 
                ``the defendant has assisted authorities''; and
                  (B) by striking ``taking one or more'' and 
                all that follows through and including 
                ``additional level'' and insert ``timely 
                notifying authorities of his intention to enter 
                a plea of guilty, thereby permitting the 
                government to avoid preparing for trial and 
                permitting the government and the court to 
                allocate their resources efficiently, decrease 
                the offense level by 1 additional level'';
          (2) in the Application Notes to the Commentary to 
        section 3E1.1, by amending Application Note 6--
                  (A) by striking ``one or both of''; and
                  (B) by adding the following new sentence at 
                the end: ``Because the Government is in the 
                best position to determine whether the 
                defendant has assisted authorities in a manner 
                that avoids preparing for trial, an adjustment 
                under subsection (b)(2) may only be granted 
                upon a formal motion by the Government at the 
                time of sentencing.''; and
          (3) in the Background to section 3E1.1, by striking 
        ``one or more of''.
  (h) Improved Data Collection.--Section 994(w) of title 28, 
United States Code, is amended to read as follows:
  ``(w)(1)The Chief Judge of each district court shall ensure 
that, within 30 days following entry of judgment in every 
criminal case, the sentencing court submits to the Commission a 
written report of the sentence, the offense for which it is 
imposed, the age, race, sex of the offender, and information 
regarding factors made relevant by the guidelines. The report 
shall also include--
          ``(A) the judgment and commitment order;
          ``(B) the statement of reasons for the sentence 
        imposed (which shall include the reason for any 
        departure from the otherwise applicable guideline 
        range);
          ``(C) any plea agreement;
          ``(D) the indictment or other charging document;
          ``(E) the presentence report; and
          ``(F) any other information as the Commission finds 
        appropriate.
          ``(2) The Commission shall, upon request, make 
        available to the House and Senate Committees on the 
        Judiciary, the written reports and all underlying 
        records accompanying those reports described in this 
        section, as well as other records received from courts.
          ``(3) The Commission shall submit to Congress at 
        least annually an analysis of these documents, any 
        recommendations for legislation that the Commission 
        concludes is warranted by that analysis, and an 
        accounting of those districts that the Commission 
        believes have not submitted the appropriate information 
        and documents required by this section.''.
  (i) Sentencing Guidelines Amendments.--(1) Subject to 
subsection (j), the Guidelines Manual promulgated by the 
Sentencing Commission pursuant to section 994(a) of title 28, 
United States Code, is amended as follows:
          (A) Application Note 4(b)(i) to section 4B1.5 is 
        amended to read as follows:
                          ``(i) In general.--For purposes of 
                        subsection (b), the defendant engaged 
                        in a pattern of activity involving 
                        prohibited sexual conduct if on at 
                        least two separate occasions, the 
                        defendant engaged in prohibited sexual 
                        conduct with a minor.''.
          (B) Section 2G2.4(b) is amended by adding at the end 
        the following:
          ``(4) If the offense involved material that portrays 
        sadistic or masochistic conduct or other depictions of 
        violence, increase by 4 levels.
          ``(5) If the offense involved--
                  ``(A) at least 10 images, but fewer than 150, 
                increase by 2 levels;
                  ``(B) at least 150 images, but fewer than 
                300, increase by 3 levels;
                  ``(C) at least 300 images, but fewer than 
                600, increase by 4 levels; and
                  ``(D) 600 or more images, increase by 5 
                levels.''.
          (C) Section 2G2.2(b) is amended by adding at the end 
        the following:
          ``(6) If the offense involved--
                  ``(A) at least 10 images, but fewer than 150, 
                increase by 2 levels;
                  ``(B) at least 150 images, but fewer than 
                300, increase by 3 levels;
                  ``(C) at least 300 images, but fewer than 
                600, increase by 4 levels; and
                  ``(D) 600 or more images, increase by 5 
                levels.''.
  (2) The Sentencing Commission shall amend the Sentencing 
Guidelines to ensure that the Guidelines adequately reflect the 
seriousness of the offenses under sections 2243(b), 2244(a)(4), 
and 2244(b) of title 18, United States Code.
  (j) Conforming Amendments.--
          (1) Upon enactment of this Act, the Sentencing 
        Commission shall forthwith distribute to all courts of 
        the United States and to the United States Probation 
        System the amendments made by subsections (b), (g), and 
        (i) of this section to the sentencing guidelines, 
        policy statements, and official commentary of the 
        Sentencing Commission. These amendments shall take 
        effect upon the date of enactment of this Act, in 
        accordance with paragraph (5).
          (2) On or before May 1, 2005, the Sentencing 
        Commission shall not promulgate any amendment to the 
        sentencing guidelines, policy statements, or official 
        commentary of the Sentencing Commission that is 
        inconsistent with any amendment made by subsection (b) 
        or that adds any new grounds of downward departure to 
        Part K of chapter 5. At no time may the Commission 
        promulgate any amendment that would alter or repeal 
        section 5K2.23 of the Federal Sentencing Guidelines 
        Manual, as added by subsection (b).
          (3) With respect to cases covered by the amendments 
        made by subsection (i) of this section, the Sentencing 
        Commission may make further amendments to the 
        sentencing guidelines, policy statements, or official 
        commentary of the Sentencing Commission, except the 
        Commission shall not promulgate any amendments that, 
        with respect to such cases, would result in sentencing 
        ranges that are lower than those that would have 
        applied under such subsections.
          (4) At no time may the Commission promulgate any 
        amendment that would alter or repeal the amendments 
        made by subsection (g) of this section.
          (5) Section 3553(a) of title 18, United States Code, 
        is amended--
                  (A) by amending paragraph (4)(A) to read as 
                follows:
                  ``(A) the applicable category of offense 
                committed by the applicable category of 
                defendant as set forth in the guidelines--
                          ``(i) issued by the Sentencing 
                        Commission pursuant to section 
                        994(a)(1) of title 28, United States 
                        Code, subject to any amendments made to 
                        such guidelines by act of Congress 
                        (regardless of whether such amendments 
                        have yet to be incorporated by the 
                        Sentencing Commission into amendments 
                        issued under section 994(p) of title 
                        28); and
                          ``(ii) that, except as provided in 
                        section 3742(g), are in effect on the 
                        date the defendant is sentenced; or'';
                  (B) in paragraph (4)(B), by inserting ``, 
                taking into account any amendments made to such 
                guidelines or policy statements by act of 
                Congress (regardless of whether such amendments 
                have yet to be incorporated by the Sentencing 
                Commission into amendments issued under section 
                994(p) of title 28)'' after ``Code'';
                  (C) by amending paragraph (5) to read as 
                follows:
          ``(5) any pertinent policy statement--
                  ``(A) issued by the Sentencing Commission 
                pursuant to section 994(a)(1) of title 28, 
                United States Code, subject to any amendments 
                made to such policy statement by act of 
                Congress (regardless of whether such amendments 
                have yet to be incorporated by the Sentencing 
                Commission into amendments issued under section 
                994(p) of title 28); and
                  ``(B) that, except as provided in section 
                3742(g), is in effect on the date the defendant 
                is sentenced.''.
  (k) Compliance With Statute.--Section 994(a) of title 28, 
United States Code, is amended by striking ``consistent with 
all provisions of this title and title 18, United States 
Code,'' and inserting ``consistent with all pertinent 
provisions of any Federal statute''.
  (l) Report by the Attorney General.--
          (1) Not later than 15 days after a district court's 
        grant of a downward departure in any case, other than a 
        case involving a downward departure for substantial 
        assistance to authorities pursuant to section 5K1.1 of 
        the Sentencing Guidelines, the Attorney General shall 
        report to the House and Senate Committees on the 
        Judiciary, setting forth the case, the facts involved, 
        the identity of the district court judge, the district 
        court's stated reasons, whether or not the court 
        provided the United States with advance notice of its 
        intention to depart, the position of the parties with 
        respect to the downward departure, whether or not the 
        United States has filed, or intends to file, a motion 
        for reconsideration; whether or not the defendant has 
        filed a notice of appeal concerning any aspect of the 
        case, and whether or not the United States has filed, 
        or intends to file, a notice of appeal of the departure 
        pursuant to section 3742 of the title 18, United States 
        Code.
          (2) In any such case, the Attorney General shall 
        thereafter report to the House and Senate Committees on 
        the Judiciary not later than 5 days after a decision by 
        the Solicitor General whether or not to authorize an 
        appeal of the departure, informing the committees of 
        the decision and the basis for it.

   3. An Amendment To Be Offered by Representative Pomeroy of North 
           Dakota, or His Designee, Debatable for 10 Minutes

  At the end of subtitle B of title II (page ____, after line 
____), insert the following new section:

SEC. ____. INFORMATION AND DOCUMENTATION REQUIRED BY ATTORNEY GENERAL 
                    UNDER VICTIMS OF CHILD ABUSE ACT OF 1990.

  (a) Regional Children's Advocacy Centers.--
          (1) In general.--Section 213 of the Victims of Child 
        Abuse Act of 1990 (42 U.S.C. 13001b) is amended--
                  (A) in subsection (b)(2)--
                          (i) by striking ``and'' at the end of 
                        subparagraph (A);
                          (ii) by striking the period at the 
                        end of subparagraph (B) and inserting 
                        ``; and''; and
                          (iii) by adding at the end the 
                        following new subparagraph:
                  ``(C) provide such information and 
                documentation as the Attorney General shall 
                require on an annual basis regarding the use of 
                such funds for purposes of evaluation of the 
                effect of grants on the community response to 
                child abuse.''; and
                  (B) in subsection (d)(3)(A), by inserting 
                after ``activities'' the following: ``or 
                substantially fails to provide information or 
                documentation required by the Attorney 
                General''.
          (2) Clerical amendments.--Such section is further 
        amended--
                  (A) in subsection (c)(4)--
                          (i) by striking ``and'' at the end of 
                        subparagraph (B)(ii);
                          (ii) in subparagraph (B)(iii), by 
                        striking ``Board'' and inserting 
                        ``board''; and
                          (iii) by redesignating subparagraphs 
                        (C) and (D) as clauses (iv) and (v), 
                        respectively, of subparagraph (B), and 
                        by realigning such clauses so as to 
                        have the same indentation as the 
                        preceding clauses of subparagraph (B);
                  (B) in subsection (e), by striking ``Board'' 
                in each of paragraphs (1)(B)(ii), (2)(A), and 
                (3), and inserting ``board''.
  (b) Local Children's Advocacy Centers.--Section 214 of that 
Act (42 U.S.C. 13002) is amended in subsection (b)(2)(J) by 
inserting before the period at the end the following: ``, 
including such information and documentation as the Attorney 
General shall require on an annual basis regarding the use of 
such funds for purposes of evaluation of the effect of grants 
on the community response to child abuse.''.
  (c) Grants for Specialized Technical Assistance and Training 
Programs.--Section 214A of such Act (42 U.S.C. 13003) is 
amended in subsection (c) by adding at the end the following 
new paragraph:
          ``(3) Any recipient of a grant under this section 
        shall provide such information and documentation as the 
        Attorney General shall require on an annual basis 
        regarding the use of such funds for purposes of 
        evaluation of the effect of grants on the community 
        response to child abuse.''.
  (d) Authorization of Appropriations.--The text of section 
214B of such Act (42 U.S.C. 13004) is amended to read as 
follows:
  ``(a) Sections 213 and 214.--There are authorized to be 
appropriated to carry out sections 213 and 214, $15,000,000 for 
each of fiscal years 2004 and 2005.
  ``(b) Section 214A.--There are authorized to be appropriated 
to carry out section 214A, $5,000,000 for each of fiscal years 
2004 and 2005.''.

 4. An Amendment To Be Offered by Representative Foley of Florida, or 
                 His Designee, Debatable for 10 Minutes

  At the end of section 301 of the bill, insert the following:

  (e) Report.--Not later than March 1, 2005, the Coordinator 
shall submit to Congress a report on the activities of the 
Coordinator and the effectiveness and status of the AMBER plans 
of each State that has implemented such a plan. The Coordinator 
shall prepare the report in consultation with the Secretary of 
Transportation.

  In section 304(b) of the bill, strike ``and'' at the end of 
paragraph (2), redesignate paragraph (3) as paragraph (4), and 
insert after paragraph (2) the following:

          (3) the development and implementation of new 
        technologies to improve AMBER Alert communications; and

  In section 304(f)(1) of the bill, strike the period at the 
end insert the following:

and, in addition, $5,000,000 for fiscal year 2004 to carry out 
subsection (b)(3).

5. An Amendment To Be Offered by Representative Carter of Texas, or His 
                   Designee, Debatable for 10 Minutes

  Add at the end the following:

SEC. ____. FEASIBILITY STUDY FOR A SYSTEM OF BACKGROUND CHECKS FOR 
                    VOLUNTEERS.

  (a) Study Required.--The Attorney General shall conduct a 
feasibility study within 120 days after the date of the 
enactment of this Act. The study shall examine, to the extent 
discernible, the following:
          (1) The current state of fingerprint capture and 
        processing at the State and local level, including the 
        current available infrastructure, State system 
        capacities, and the time for each State to process a 
        civil or volunteer print from the time of capture to 
        submission to the Federal Bureau of Investigation 
        (FBI).
          (2) The intent of the States concerning participation 
        in a nationwide system of criminal background checks to 
        provide information to qualified entities.
          (3) The number of volunteers, employees, and other 
        individuals that would require a fingerprint based 
        criminal background check.
          (4) The impact on the FBI's Integrated Automated 
        Fingerprint Identification System (IAFIS) in terms of 
        capacity and impact on other users of the system, 
        including the effect on FBI work practices and staffing 
        levels.
          (5) The current fees charged by the FBI, States and 
        local agencies, and private companies to process 
        fingerprints.
          (6) The existence of ``model'' or best practice 
        programs which could easily be expanded and duplicated 
        in other States.
          (7) The extent to which private companies are 
        currently performing background checks and the 
        possibility of using private companies in the future to 
        perform any of the background check process, including, 
        but not limited to, the capture and transmission of 
        fingerprints and fitness determinations.
          (8) The cost of development and operation of the 
        technology and the infrastructure necessary to 
        establish a nationwide fingerprint based and other 
        criminal background check system.
          (9) Any other information deemed relevant by the 
        Department of Justice.
  (b) Report.--Based on the findings of the feasibility study, 
the Attorney General shall, not later than 120 days after the 
date of the enactment of this Act, submit to Congress a report, 
including recommendations, which may include a proposal for 
grants to the States to develop or improve programs to collect 
fingerprints and perform background checks on individuals that 
seek to volunteer with organizations that work with children, 
the elderly, or the disabled.

 6. An Amendment To Be Offered by Representative Lampson of Texas, or 
                 His Designee, Debatable for 10 Minutes

  Add at the end the following:

SEC. ____. FORENSIC AND INVESTIGATIVE SUPPORT OF MISSING AND EXPLOITED 
                    CHILDREN.

  Section 3056 of title 18, United States Code, is amended by 
adding at the end the following:
  ``(f) Under the direction of the Secretary of the Treasury, 
officers and agents of the Secret Service are authorized, at 
the request of any State or local law enforcement agency, or at 
the request of the National Center for Missing and Exploited 
Children, to provide forensic and investigative assistance in 
support of any investigation involving missing or exploited 
children.''.

7. An Amendment To Be Offered by Resident Commissioner Acevedo-Vila of 
         Puerto Rico, or His Designee, Debatable for 10 Minutes

  At the end of the bill, add the following:

       TITLE IV--MISSING CHILDREN PROCEDURES IN PUBLIC BUILDINGS

SEC. 401. SHORT TITLE.

  This title may be cited as the ``Code Adam Act''.

SEC. 402. DEFINITIONS.

  In this title, the following definitions apply:
          (1) Child.--The term ``child'' means an individual 
        who is 17 years of age or younger.
          (2) Code adam alert.--The term ``Code Adam alert'' 
        means a set of procedures used in public buildings to 
        alert employees and other users of the building that a 
        child is missing.
          (3) Designated authority.--The term ``designated 
        authority'' means--
                  (A) with respect to a public building owned 
                or leased for use by an Executive agency--
                          (i) except as otherwise provided in 
                        this paragraph, the Administrator of 
                        General Services;
                          (ii) in the case of the John F. 
                        Kennedy Center for the Performing Arts, 
                        the Board of Trustees of the John F. 
                        Kennedy Center for the Performing Arts;
                          (iii) in the case of buildings under 
                        the jurisdiction, custody, and control 
                        of the Smithsonian Institution, the 
                        Board of Regents of the Smithsonian 
                        Institution; or
                          (iv) in the case of another public 
                        building for which an Executive agency 
                        has, by specific or general statutory 
                        authority, jurisdiction, custody, and 
                        control over the building, the head of 
                        that agency;
                  (B) with respect to a public building owned 
                or leased for use by an establishment in the 
                judicial branch of government, the 
                Administrative Office of the United States 
                Courts; and
                  (C) with respect to a public building owned 
                or leased for use by an establishment in the 
                legislative branch of government, the Capitol 
                Police Board.
          (4) Executive agency.--The term ``Executive agency'' 
        has the same meaning such term has under section 105 of 
        title 5, United States Code.
          (5) Federal agency.--The term ``Federal agency'' 
        means any Executive agency or any establishment in the 
        legislative or judicial branches of the Government.
          (6) Public building.--The term ``public building'' 
        means any building (or portion thereof) owned or leased 
        for use by a Federal agency.

SEC. 403. PROCEDURES IN PUBLIC BUILDINGS REGARDING A MISSING OR LOST 
                    CHILD.

  (a) In General.--Not later than 180 days after the date of 
enactment of this Act, the designated authority for a public 
building shall establish procedures for locating a child that 
is missing in the building.
  (b) Notification and Search Procedures.--Procedures 
established under this section shall provide, at a minimum, for 
the following:
          (1) Notifying security personnel that a child is 
        missing.
          (2) Obtaining a detailed description of the child, 
        including name, age, eye and hair color, height, 
        weight, clothing, and shoes.
          (3) Issuing a Code Adam alert and providing a 
        description of the child, using a fast and effective 
        means of communication.
          (4) Establishing a central point of contact.
          (5) Monitoring all points of egress from the building 
        while a Code Adam alert is in effect.
          (6) Conducting a thorough search of the building.
          (7) Contacting local law enforcement.
          (8) Documenting the incident.

8. An Amendment To Be Offered by Representative Smith of Texas, or His 
                   Designee, Debatable for 20 Minutes

  Add at the end the following:

                              TITLE ____--

SEC. ____01. FINDINGS.

  Congress finds the following:
          (1) Obscenity and child pornography are not entitled 
        to protection under the First Amendment under Miller v. 
        California, 413 U.S. 15 (1973) (obscenity), or New York 
        v. Ferber, 458 U.S. 747 (1982) (child pornography) and 
        thus may be prohibited.
          (2) The Government has a compelling state interest in 
        protecting children from those who sexually exploit 
        them, including both child molesters and child 
        pornographers. ``The prevention of sexual exploitation 
        and abuse of children constitutes a government 
        objective of surpassing importance,'' New York v. 
        Ferber, 458 U.S. 747, 757 (1982), and this interest 
        extends to stamping out the vice of child pornography 
        at all levels in the distribution chain. Osborne v. 
        Ohio, 495 U.S. 103, 110 (1990).
          (3) The Government thus has a compelling interest in 
        ensuring that the criminal prohibitions against child 
        pornography remain enforceable and effective. ``The 
        most expeditious if not the only practical method of 
        law enforcement may be to dry up the market for this 
        material by imposing severe criminal penalties on 
        persons selling, advertising, or otherwise promoting 
        the product.'' Ferber, 458 U.S. at 760.
          (4) In 1982, when the Supreme Court decided Ferber, 
        the technology did not exist to:
                  (A) computer generate depictions of children 
                that are indistinguishable from depictions of 
                real children;
                  (B) use parts of images of real children to 
                create a composite image that is unidentifiable 
                as a particular child and in a way that 
                prevents even an expert from concluding that 
                parts of images of real children were used; or
                  (C) disguise pictures of real children being 
                abused by making the image look computer-
                generated.
          (5) Evidence submitted to the Congress, including 
        from the National Center for Missing and Exploited 
        Children, demonstrates that technology already exists 
        to disguise depictions of real children to make them 
        unidentifiable and to make depictions of real children 
        appear computer-generated. The technology will soon 
        exist, if it does not already, to computer generate 
        realistic images of children.
          (6) The vast majority of child pornography 
        prosecutions today involve images contained on computer 
        hard drives, computer disks, and/or related media.
          (7) There is no substantial evidence that any of the 
        child pornography images being trafficked today were 
        made other than by the abuse of real children. 
        Nevertheless, technological advances since Ferber have 
        led many criminal defendants to suggest that the images 
        of child pornography they possess are not those of real 
        children, insisting that the government prove beyond a 
        reasonable doubt that the images are not computer-
        generated. Such challenges increased significantly 
        after the decision in Ashcroft v. Free Speech Coalition 
        535 U.S. 234 (2002).
          (8) Child pornography circulating on the Internet 
        has, by definition, been digitally uploaded or scanned 
        into computers and has been transferred over the 
        Internet, often in different file formats, from 
        trafficker to trafficker. An image seized from a 
        collector of child pornography is rarely a first-
        generation product, and the retransmission of images 
        can alter the image so as to make it difficult for even 
        an expert conclusively to opine that a particular image 
        depicts a real child. If the original image has been 
        scanned from a paper version into a digital format, 
        this task can be even harder since proper forensic 
        assessment may depend on the quality of the image 
        scanned and the tools used to scan it.
          (9) The impact of the Free Speech Coalition decision 
        on the Government's ability to prosecute child 
        pornography offenders is already evident. The Ninth 
        Circuit has seen a significant adverse effect on 
        prosecutions since the 1999 Ninth Circuit Court of 
        Appeals decision in Free Speech Coalition. After that 
        decision, prosecutions generally have been brought in 
        the Ninth Circuit only in the most clear-cut cases in 
        which the government can specifically identify the 
        child in the depiction or otherwise identify the origin 
        of the image. This is a fraction of meritorious child 
        pornography cases. The National Center for Missing and 
        Exploited Children testified that, in light of the 
        Supreme Court's affirmation of the Ninth Circuit 
        decision, prosecutors in various parts of the country 
        have expressed concern about the continued viability of 
        previously indicted cases as well as declined 
        potentially meritorious prosecutions.
          (10) Since the Supreme Court's decision in Free 
        Speech Coalition, defendants in child pornography cases 
        have almost universally raised the contention that the 
        images in question could be virtual, thereby requiring 
        the government, in nearly every child pornography 
        prosecution, to find proof that the child is real. Some 
        of these defense efforts have already been successful. 
        In addition, the number of prosecutions being brought 
        has been significantly and adversely affected as the 
        resources required to be dedicated to each child 
        pornography case now are significantly higher than ever 
        before.
          (11) Leading experts agree that, to the extent that 
        the technology exists to computer generate realistic 
        images of child pornography, the cost in terms of time, 
        money, and expertise is--and for the foreseeable future 
        will remain--prohibitively expensive. As a result, for 
        the foreseeable future, it will be more cost-effective 
        to produce child pornography using real children. It 
        will not, however, be difficult or expensive to use 
        readily available technology to disguise those 
        depictions of real children to make them unidentifiable 
        or to make them appear computer-generated.
          (12) Child pornography results from the abuse of real 
        children by sex offenders; the production of child 
        pornography is a byproduct of, and not the primary 
        reason for, the sexual abuse of children. There is no 
        evidence that the future development of easy and 
        inexpensive means of computer generating realistic 
        images of children would stop or even reduce the sexual 
        abuse of real children or the practice of visually 
        recording that abuse.
          (13) In the absence of congressional action, the 
        difficulties in enforcing the child pornography laws 
        will continue to grow increasingly worse. The mere 
        prospect that the technology exists to create composite 
        or computer-generated depictions that are 
        indistinguishable from depictions of real children will 
        allow defendants who possess images of real children to 
        escape prosecution; for it threatens to create a 
        reasonable doubt in every case of computer images even 
        when a real child was abused. This threatens to render 
        child pornography laws that protect real children 
        unenforceable. Moreover, imposing an additional 
        requirement that the Government prove beyond a 
        reasonable doubt that the defendant knew that the image 
        was in fact a real child--as some courts have done--
        threatens to result in the de facto legalization of the 
        possession, receipt, and distribution of child 
        pornography for all except the original producers of 
        the material.
          (14) To avoid this grave threat to the Government's 
        unquestioned compelling interest in effective 
        enforcement of the child pornography laws that protect 
        real children, a statute must be adopted that prohibits 
        a narrowly-defined subcategory of images.
          (15) The Supreme Court's 1982 Ferber v. New York 
        decision holding that child pornography was not 
        protected drove child pornography off the shelves of 
        adult bookstores. Congressional action is necessary now 
        to ensure that open and notorious trafficking in such 
        materials does not reappear, and even increase, on the 
        Internet.

SEC. ____02. IMPROVEMENTS TO PROHIBITION ON VIRTUAL CHILD PORNOGRAPHY.

  (a) Section 2256(8)(B) of title 18, United States Code, is 
amended to read as follows:
                  ``(B) such visual depiction is a digital 
                image, computer image, or computer-generated 
                image that is, or is indistinguishable (as 
                defined in section 1466A) from, that of a minor 
                engaging in sexually explicit conduct; or''.
  (b) Section 2256(2) of title 18, United States Code, is 
amended to read as follows:
          ``(2)(A) Except as provided in subparagraph (B), 
        `sexually explicit conduct' means actual or simulated--
                  ``(i) sexual intercourse, including genital-
                genital, oral-genital, anal-genital, or oral-
                anal, whether between persons of the same or 
                opposite sex;
                  ``(ii) bestiality;
                  ``(iii) masturbation;
                  ``(iv) sadistic or masochistic abuse; or
                  ``(v) lascivious exhibition of the genitals 
                or pubic area of any person;
          ``(B) For purposes of subsection 8(B) of this 
        section, `sexually explicit conduct' means--
                  ``(i) graphic sexual intercourse, including 
                genital-genital, oral-genital, anal-genital, or 
                oral-anal, whether between persons of the same 
                or opposite sex, or lascivious simulated sexual 
                intercourse where the genitals, breast, or 
                pubic area of any person is exhibited;
                  ``(ii) graphic or lascivious simulated;
                          ``(I) bestiality;
                          ``(II) masturbation; or
                          ``(III) sadistic or masochistic 
                        abuse; or
                  ``(iii) graphic or simulated lascivious 
                exhibition of the genitals or pubic area of any 
                person;''.
  (c) Section 2256 is amended--
          (1) in paragraph 8(D), by striking ``and'' at the 
        end;
          (2) in paragraph (9), by striking the period at the 
        end and inserting ``; and''; and
          (3) by inserting at the end the following new 
        paragraph:
          ``(10) `graphic', when used with respect to a 
        depiction of sexually explicit conduct, means that a 
        viewer can observe any part of the genitals or pubic 
        area of any depicted person or animal during any part 
        of the time that the sexually explicit conduct is being 
        depicted.''.
  (d) Section 2252A(c) of title 18, United States Code, is 
amended to read as follows:
  ``(c)(1) Except as provided in paragraph (2), it shall be an 
affirmative defense to a charge of violating this section that 
the production of the alleged child pornography did not involve 
the use of a minor or an attempt or conspiracy to commit an 
offense under this section involving such use.
  ``(2) A violation of, or an attempt or conspiracy to violate, 
this section which involves child pornography as defined in 
section 2256(8)(A) or (C) shall be punishable without regard to 
the affirmative defense set forth in paragraph (1).''.

SEC. ____03. PROHIBITION ON PANDERING MATERIALS AS CHILD PORNOGRAPHY.

  (a) Section 2256(8) of title 18, United States Code, is 
amended--
          (1) in subparagraph (C), by striking ``or'' at the 
        end and inserting ``and''; and
          (2) by striking subparagraph (D).
  (b) Chapter 110 of title 18, United States Code, is amended--
          (1) by inserting after section 2252A the following:

``Sec. 2252B. Pandering and solicitation

  ``(a) Whoever, in a circumstance described in subsection (d), 
offers, agrees, attempts, or conspires to provide or sell a 
visual depiction to another, and who in connection therewith 
knowingly advertises, promotes, presents, or describes the 
visual depiction with the intent to cause any person to believe 
that the material is, or contains, a visual depiction of an 
actual minor engaging in sexually explicit conduct shall be 
subject to the penalties set forth in section 2252A(b)(1), 
including the penalties provided for cases involving a prior 
conviction.
  ``(b) Whoever, in a circumstance described in subsection (d), 
offers, agrees, attempts, or conspires to receive or purchase 
from another a visual depiction that he believes to be, or to 
contain, a visual depiction of an actual minor engaging in 
sexually explicit conduct shall be subject to the penalties set 
forth in section 2252A(b)(1), including the penalties provided 
for cases involving a prior conviction.
  ``(c) It is not a required element of any offense under this 
section that any person actually provide, sell, receive, 
purchase, possess, or produce any visual depiction.
  ``(d) The circumstance referred to in subsection (a) and (b) 
is that--
          ``(1) any communication involved in or made in 
        furtherance of the offense is communicated or 
        transported by the mail, or in interstate or foreign 
        commerce by any means, including by computer, or any 
        means or instrumentality of interstate or foreign 
        commerce is otherwise used in committing or in 
        furtherance of the commission of the offense;
          ``(2) any communication involved in or made in 
        furtherance of the offense contemplates the 
        transmission or transportation of a visual depiction by 
        the mail, or in interstate or foreign commerce by any 
        means, including by computer;
          ``(3) any person who travels or is transported in 
        interstate or foreign commerce in the course of the 
        commission or in furtherance of the commission of the 
        offense;
          ``(4) any visual depiction involved in the offense 
        has been mailed, or has been shipped or transported in 
        interstate or foreign commerce by any means, including 
        by computer, or was produced using materials that have 
        been mailed, or that have been shipped or transported 
        in interstate or foreign commerce by any means, 
        including by computer; or
          ``(5) the offense is committed in the special 
        maritime and territorial jurisdiction of the United 
        States or in any territory or possession of the United 
        States.''; and
          (2) in the table of sections at the beginning of the 
        chapter, by inserting after the item relating to 
        section 2252A the following:

``2252B. Pandering and solicitation.''.

SEC. ____04. PROHIBITION OF OBSCENITY DEPICTING YOUNG CHILDREN.

  (a) Chapter 71 of title 18, United States Code, is amended--
          (1) by inserting after section 1466 the following:

``Sec. 1466A. Obscene visual depictions of young children

  ``(a) Whoever, in a circumstance described in subsection (d), 
knowingly produces, distributes, receives, or possesses with 
intent to distribute a visual depiction that is, or is 
indistinguishable from, that of a pre-pubescent child engaging 
in sexually explicit conduct, or attempts or conspires to do 
so, shall be subject to the penalties set forth in section 
2252A(b)(1), including the penalties provided for cases 
involving a prior conviction.
  ``(b) Whoever, in a circumstance described in subsection (d), 
knowingly possesses a visual depiction that is, or is 
indistinguishable from, that of a pre-pubescent child engaging 
in sexually explicit conduct, or attempts or conspires to do 
so, shall be subject to the penalties set forth in section 
2252A(b)(2), including the penalties provided for cases 
involving a prior conviction.
  ``(c) For purposes of this section--
          ``(1) the term `visual depiction' includes 
        undeveloped film and videotape, and data stored on 
        computer disk or by electronic means which is capable 
        of conversion into a visual image, and also includes 
        any photograph, film, video, picture, or computer or 
        computer-generated image or picture, whether made or 
        produced by electronic, mechanical, or other means;
          ``(2) the term `pre-pubescent child' means that (A) 
        the child, as depicted, is one whose physical 
        development indicates the child is 12 years of age or 
        younger; or (B) the child, as depicted, does not 
        exhibit significant pubescent physical or sexual 
        maturation. Factors that may be considered in 
        determining significant pubescent physical maturation 
        include body habitus and musculature, height and weight 
        proportion, degree of hair distribution over the body, 
        extremity proportion with respect to the torso, and 
        dentition. Factors that may be considered in 
        determining significant pubescent sexual maturation 
        include breast development, presence of axillary hair, 
        pubic hair distribution, and visible growth of the 
        sexual organs;
          ``(3) the term `sexually explicit conduct' has the 
        meaning set forth in section 2256(2); and
          ``(4) the term `indistinguishable' used with respect 
        to a depiction, means virtually indistinguishable, in 
        that the depiction is such that an ordinary person 
        viewing the depiction would conclude that the depiction 
        is of an actual minor engaged in sexually explicit 
        conduct. This definition does not apply to depictions 
        that are drawings, cartoons, sculptures, or paintings 
        depicting minors or adults.
  ``(d) The circumstance referred to in subsections (a) and (b) 
is that--
          ``(1) any communication involved in or made in 
        furtherance of the offense is communicated or 
        transported by the mail, or in interstate or foreign 
        commerce by any means, including by computer, or any 
        means or instrumentality of interstate or foreign 
        commerce is otherwise used in committing or in 
        furtherance of the commission of the offense;
          ``(2) any communication involved in or made in 
        furtherance of the offense contemplates the 
        transmission or transportation of a visual depiction by 
        the mail, or in interstate or foreign commerce by any 
        means, including by computer;
          ``(3) any person travels or is transported in 
        interstate or foreign commerce in the course of the 
        commission or in furtherance of the commission of the 
        offense;
          ``(4) any visual depiction involved in the offense 
        has been mailed, or has been shipped or transported in 
        interstate or foreign commerce by any means, including 
        by computer, or was produced using materials that have 
        been mailed, or that have been shipped or transported 
        in interstate or foreign commerce by any means, 
        including by computer; or
          ``(5) the offense is committed in the special 
        maritime and territorial jurisdiction of the United 
        States or in any territory or possession of the United 
        States.
  ``(e) In a case under subsection (b), it is an affirmative 
defense that the defendant--
          ``(1) possessed less than three such images; and
          ``(2) promptly and in good faith, and without 
        retaining or allowing any person, other than a law 
        enforcement agency, to access any image or copy 
        thereof--
                  ``(A) took reasonable steps to destroy each 
                such image; or
                  ``(B) reported the matter to a law 
                enforcement agency and afforded that agency 
                access to each such image.

``Sec. 1466B. Obscene visual representations of sexual abuse of minors

  ``(a) Whoever, in a circumstance described in subsection (e), 
knowingly produces, distributes, receives, or possesses with 
intent to distribute a visual depiction of any kind, including 
a drawing, cartoon, sculpture, or painting, that--
          ``(1) depicts a minor engaging in sexually explicit 
        conduct; and
          ``(2) is obscene;
or attempts or conspires to do so, shall be subject to the 
penalties set forth in section 2252A(b)(1), including the 
penalties provided for cases involving a prior conviction.
  ``(b) Whoever, in a circumstance described in subsection (e), 
knowingly possesses a visual depiction of any kind, including a 
drawing, cartoon, sculpture, or painting, that--
          ``(1) depicts a minor child engaging in sexually 
        explicit conduct, and
          ``(2) is obscene,
or attempts or conspires to do so, shall be subject to the 
penalties set forth in section 2252A(b)(2), including the 
penalties provided for cases involving a prior conviction.
  ``(c) It is not a required element of any offense under this 
section that the minor child depicted actually exist.
  ``(d) For purposes of this section, the terms `visual 
depiction' has the meaning given that term in section 1466A, 
and the terms `sexually explicit conduct' and `minor' have the 
meanings given those terms in section 2256(2)(B).
  ``(e) The circumstance referred to in subsection (a) and (b) 
is that--
          ``(1) any communication involved in or made in 
        furtherance of the offense is communicated or 
        transported by the mail, or in interstate or foreign 
        commerce by any means, including by computer, or any 
        means or instrumentality of interstate or foreign 
        commerce is otherwise used in committing or in 
        furtherance of the commission of the offense;
          ``(2) any communication involved in or made in 
        furtherance of the offense contemplates the 
        transmission or transportation of a visual depiction by 
        the mail, or in interstate or foreign commerce by any 
        means, including by computer;
          ``(3) any person travels or is transported in 
        interstate or foreign commerce in the course of the 
        commission or in furtherance of the commission of the 
        offense;
          ``(4) any visual depiction involved in the offense 
        has been mailed, or has been shipped or transported in 
        interstate or foreign commerce by any means, including 
        by computer, or was produced using materials that have 
        been mailed, or that have been shipped or transported 
        in interstate or foreign commerce by any means, 
        including by computer; or
          ``(5) the offense is committed in the special 
        maritime and territorial jurisdiction of the United 
        States or in any territory or possession of the United 
        States.
  ``(f) In a case under subsection (b), it is an affirmative 
defense that the defendant--
          ``(1) possessed less than three such images; and
          ``(2) promptly and in good faith, and without 
        retaining or allowing any person, other than a law 
        enforcement agency, to access any image or copy 
        thereof--
                  ``(A) took reasonable steps to destroy each 
                such image; or
                  ``(B) reported the matter to a law 
                enforcement agency and afforded that agency 
                access to each such image.''; and
          (2) in table of sections at the beginning of the 
        chapter, by inserting after the item relating to 
        section 1466 the following new items:

``1466A. Obscene visual depictions of young children.
``1466B. Obscene visual representations of pre-pubescent sexual 
          abuse.''.
  (b)(1) Except as provided in paragraph (2), the applicable 
category of offense to be used in determining the sentencing 
range referred to in section 3553(a)(4) of title 18, United 
States Code, with respect to any person convicted under section 
1466A or 1466B of such title, shall be the category of offenses 
described in section 2G2.2 of the Sentencing Guidelines.
  (2) The Sentencing Commission may promulgate guidelines 
specifically governing offenses under sections 1466A and 1466B 
of title 18, United States Code, provided that such guidelines 
shall not result in sentencing ranges that are lower than those 
that would have applied under paragraph (1).

SEC. ____05. PROHIBITION ON USE OF MATERIALS TO FACILITATE OFFENSES 
                    AGAINST MINORS.

  Chapter 71 of title 18, United States Code, is amended--
          (1) by inserting at the end the following:

``Sec. 1471. Use of obscene material or child pornography to facilitate 
                    offenses against minors

  ``(a) Whoever, in any circumstance described in subsection 
(c), knowingly--
          ``(1) provides or shows to a person below the age of 
        16 years any visual depiction that is, or is 
        indistinguishable from, that of a pre-pubescent child 
        engaging in sexually explicit conduct, any obscene 
        matter, or any child pornography; or
          ``(2) provides or shows any obscene matter or child 
        pornography, or any visual depiction that is, or is 
        indistinguishable from, that of a pre-pubescent child 
        engaging in sexually explicit conduct, or provides any 
        other material assistance to any person in connection 
        with any conduct, or any attempt, incitement, 
        solicitation, or conspiracy to engage in any conduct, 
        that involves a minor and that violates chapter 109A, 
        110, or 117, or that would violate chapter 109A if the 
        conduct occurred in the special maritime and 
        territorial jurisdiction of the United States,
shall be subject to the penalties set forth in section 
2252A(b)(1), including the penalties provided for cases 
involving a prior conviction.
  ``(b) For purposes of this section--
          ``(1) the term `child pornography' has the meaning 
        set forth in section 2256(8);
          ``(2) the terms `visual depiction', `pre-pubescent 
        child', and `indistinguishable' have the meanings 
        respectively set forth for those terms in section 
        1466A(c); and
          ``(3) the term `sexually explicit conduct' has the 
        meaning set forth in section 2256(2).
  ``(c) The circumstance referred to in subsection (a) is 
that--
          ``(1) any communication involved in or made in 
        furtherance of the offense is communicated or 
        transported by the mail, or in interstate or foreign 
        commerce by any means, including by computer, or any 
        means or instrumentality of interstate or foreign 
        commerce is otherwise used in committing or in 
        furtherance of the commission of the offense;
          ``(2) any communication involved in or made in 
        furtherance of the offense contemplates the 
        transmission or transportation of a visual depiction or 
        obscene matter by the mail, or in interstate or foreign 
        commerce by any means, including by computer;
          ``(3) any person travels or is transported in 
        interstate or foreign commerce in the course of the 
        commission or in furtherance of the commission of the 
        offense;
          ``(4) any visual depiction or obscene matter involved 
        in the offense has been mailed, or has been shipped or 
        transported in interstate or foreign commerce by any 
        means, including by computer, or was produced using 
        materials that have been mailed, or that have been 
        shipped or transported in interstate or foreign 
        commerce by any means, including by computer; or
          ``(5) the offense is committed in the special 
        maritime and territorial jurisdiction of the United 
        States or in any territory or possession of the United 
        States.''; and
          (2) in the table of sections at the beginning of the 
        chapter, by inserting at the end the following:

``1471. Use of obscene material or child pornography to facilitate 
          offenses against minors.''.

SEC. ____06. EXTRATERRITORIAL PRODUCTION OF CHILD PORNOGRAPHY FOR 
                    DISTRIBUTION IN THE UNITED STATES.

  Section 2251 is amended--
          (1) by striking ``subsection (d)'' each place it 
        appears in subsections (a), (b), and (c) and inserting 
        ``subsection (e)'';
          (2) by redesignating subsections (c) and (d), 
        respectively, as subsections (d) and (e); and
          (3) by inserting after subsection (b) a new 
        subsection (c) as follows:
  ``(c)(1) Any person who, in a circumstance described in 
paragraph (2), employs, uses, persuades, induces, entices, or 
coerces any minor to engage in, or who has a minor assist any 
other person to engage in, any sexually explicit conduct 
outside of the United States, its possessions and Territories, 
for the purpose of producing any visual depiction of such 
conduct, shall be punished as provided under subsection (e).
  ``(2) The circumstance referred to in paragraph (1) is that--
          ``(A) the person intends such visual depiction to be 
        transported to the United States, its possessions, or 
        territories, by any means including by computer or 
        mail; or
          ``(B) the person transports such visual depiction to, 
        or otherwise makes it available within, the United 
        States, its possessions, or territories, by any means 
        including by computer or mail.''.

SEC. ____07. STRENGTHENING ENHANCED PENALTIES FOR REPEAT OFFENDERS.

  Sections 2251(e) (as redesignated by section ____06(2)), 
2252(b), and 2252A(b) of title 18, United States Code, are each 
amended--
          (1) by inserting ``chapter 71,'' immediately before 
        each occurrence of ``chapter 109A,''; and
          (2) by inserting ``or under section 920 of title 10 
        (article 120 of the Uniform Code of Military 
        Justice),'' immediately before each occurrence of ``or 
        under the laws''.

SEC. ____08. SERVICE PROVIDER REPORTING OF CHILD PORNOGRAPHY AND 
                    RELATED INFORMATION.

  (a) Section 227 of the Victims of Child Abuse Act of 1990 (42 
U.S.C. 13032) is amended--
          (1) in subsection (b)(1)--
                  (A) by inserting ``2252B,'' after ``2252A,''; 
                and
                  (B) by inserting ``or a violation of section 
                1466A or 1466B of that title,'' after ``of that 
                title),'';
          (2) in subsection (c), by inserting ``or pursuant 
        to'' after ``to comply with'';
          (3) by amending subsection (f)(1)(D) to read as 
        follows:
                  ``(D) where the report discloses a violation 
                of State criminal law, to an appropriate 
                official of a State or subdivision of a State 
                for the purpose of enforcing such State law.'';
          (4) by redesignating paragraph (3) of subsection (b) 
        as paragraph (4); and
          (5) by inserting after paragraph (2) of subsection 
        (b) the following new paragraph:
          ``(3) In addition to forwarding such reports to those 
        agencies designated in subsection (b)(2), the National 
        Center for Missing and Exploited Children is authorized 
        to forward any such report to an appropriate official 
        of a state or subdivision of a state for the purpose of 
        enforcing state criminal law.''.
  (b) Section 2702 of title 18, United States Code is amended--
          (1) in subsection (b)--
                  (A) in paragraph (6)--
                          (i) by inserting ``or'' at the end of 
                        subparagraph (A)(ii);
                          (ii) by striking subparagraph (B); 
                        and
                          (iii) by redesignating subparagraph 
                        (C) as subparagraph (B);
                  (B) by redesignating paragraph (6) as 
                paragraph (7);
                  (C) by striking ``or'' at the end of 
                paragraph (5); and
                  (D) by inserting after paragraph (5) the 
                following new paragraph:
          ``(6) to the National Center for Missing and 
        Exploited Children, in connection with a report 
        submitted thereto under section 227 of the Victims of 
        Child Abuse Act of 1990 (42 U.S.C. 13032); or''; and
          (2) in subsection (c)--
                  (A) by striking ``or'' at the end of 
                paragraph (4);
                  (B) by redesignating paragraph (5) as 
                paragraph (6); and
                  (C) by adding after paragraph (4) the 
                following new paragraph:
          ``(5) to the National Center for Missing and 
        Exploited Children, in connection with a report 
        submitted thereto under section 227 of the Victims of 
        Child Abuse Act of 1990 (42 U.S.C. 13032); or''.

SEC. ____09. SEVERABILITY.

  If any provision of this title, or the application of such 
provision to any person or circumstance, is held invalid, the 
remainder of this title, and the application of such provision 
to other persons not similarly situated or to other 
circumstances, shall not be affected by such invalidation.

SEC. ____10. INVESTIGATIVE AUTHORITY RELATING TO CHILD PORNOGRAPHY.

  Section 3486(a)(1)(C)(i) of title 18, United States Code, is 
amended by striking ``the name, address'' and all that follows 
through ``subscriber or customer utilized'' and inserting ``the 
information specified in section 2703(c)(2)''.

SEC. ____11. AUTHORIZATION OF INTERCEPTION OF COMMUNICATIONS IN THE 
                    INVESTIGATION OF SEXUAL CRIMES AGAINST CHILDREN.

  Section 2516(1)(c) of title 18, United States Code, is 
amended by inserting ``1466A, 1466B,'' before ``2251''.

SEC. ____12. RECORDKEEPING TO DEMONSTRATE MINORS WERE NOT USED IN 
                    PRODUCTION OF PORNOGRAPHY.

  Not later than 1 year after enactment of this Act, the 
Attorney General shall submit to Congress a report detailing 
the number of times since January 1993 that the Department of 
Justice has inspected the records of any producer of materials 
regulated pursuant to section 2257 of title 18, United States 
Code, and section 75 of title 28 of the Code of Federal 
Regulations. The Attorney General shall indicate the number of 
violations prosecuted as a result of those inspections.

                                
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