[Federal Register Volume 61, Number 37 (Friday, February 23, 1996)]
[Notices]
[Pages 7037-7039]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4050]



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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of proposed amendments to sentencing guidelines and 
commentary. Request for public comment. Notice of hearing.

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SUMMARY: The Commission is considering promulgating certain amendments 
to the sentencing guidelines and commentary. This notice sets forth the 
proposed amendments and a synopsis of the issues addressed by the 
amendments as well as additional issues for comment. The Commission 
seeks comment on the proposed amendments, alternative proposed 
amendments, and any other aspect of the sentencing guidelines, policy 
statements, and commentary. The Commission may submit amendments to the 
Congress not later than May 1, 1996.

DATES: The Commission has scheduled a public hearing on the proposed 
amendments set forth in this notice and on the money laundering 
proposals set forth in the notice dated January 2, 1996, (see 61 F.R. 
79-83). Testimony at the public hearing shall be limited to only those 
amendments. The public hearing is scheduled for March 11, 1996, at 1:00 
p.m. at the Education Center (concourse level), South Lobby, Thurgood 
Marshall Federal Judiciary Building, One Columbus Circle, NE., 
Washington, DC 20002-8002.
    A person who desires to testify at the public hearing should notify 
Michael Courlander, Public Information Specialist, at (202) 273-4590 
not later than February 27, 1996.
    Written testimony for the hearing should be received by the 
Commission not later than March 6, 1996. Comment on the amendments and 
issues set forth in this notice (relating to penalties for child 
pornography and sex crime offenses) also may be submitted after the 
public hearing, but not later than March 29, 1996, in order to be 
considered by the Commission in the promulgation of amendments and in 
the possible submission of those amendments to the Congress by May 1, 
1996.

ADDRESSES: Public comment should be sent to: United States Sentencing 
Commission, One Columbus Circle, NE., Suite 2-500, Washington, DC 
20002-8002, Attention: Public Information.

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Information 
Specialist, Telephone: (202) 273-4590.

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is 
an independent agency in the judicial branch of the United States 
Government. The Commission promulgates sentencing guidelines and policy 
statements for federal sentencing courts pursuant to 28 U.S.C. 
Sec. 994(a). The Commission also periodically reviews and revises 
previously promulgated guidelines pursuant to 28 U.S.C. Sec. 994(o). If 
guideline amendments are promulgated, those amendments are submitted to 
Congress not later than the first day of May pursuant to 28 U.S.C. 
Sec. 994(p).
    The proposed amendments are presented in this notice in one of two 
formats. First, some of the amendments are proposed as specific 
revisions to a guideline or commentary. Bracketed text within a 
proposed amendment indicates alternative proposals; for example, a 
proposed enhancement of [3][4][5] levels means a proposed enhancement 
of either three, four, or five levels. The Commission invites comment 
and suggestions for appropriate policy choices where bracketed text is 
indicated. Second, the Commission has highlighted certain issues for 
comment and invites suggestions for specific amendment language.
    As set forth more fully in its notice dated September 22, 1995, 
(see 60 FR 49316-17), the Commission currently is engaged in a 
comprehensive guideline assessment and simplification effort. This 
project is expected to be a two-year initiative that may produce 
amendments in the 1996-97 amendment cycle for submission to Congress 
not later than May 1, 1997. During this initial year of the project, 
the Commission generally plans to promulgate no guideline amendments, 
except as may be necessary to implement legislation enacted by 
Congress. The amendments presented in this notice are proposed in order 
to implement congressional directives in the Sex Crimes Against 
Children Prevention Act of 1995. (For additional amendments proposed in 
response to enacted legislation, see the notice dated January 2, 1996, 
61 FR 79-83).

    Authority. 28 U.S.C. Sec. 994(a), (o), (p), (x).
Richard P. Conaboy,
Chairman.

Child Sex Offenses

Chapter Two, Part G (Offenses Involving Prostitution, Sexual 
Exploitation of Minors, and Obscenity)

    1. Synopsis of Proposed Amendments: The Sex Crimes Against Children 
Prevention Act of 1995 contains several directives to the Commission to 
amend the current guidelines relating to the sexual exploitation of 
minors. The amendment set forth below implements sections 2 and 3 of 
the Act. Those sections direct the Commission to increase by at least 
two levels the base offense level in the current guidelines for 
offenses involving the sexual exploitation of minors under sections 
2251 and 2252 of title 18, United States Code, and for offenses under 
sections 2251(c)(1)(A) and 2252(a) of such title if a computer was used 
to transmit certain notices or advertisements of visual depictions 
involving minors engaged in sexually explicit conduct or to transport 
or ship those visual depictions.
    In addition to implementing the congressional directives, the 
amendment set forth below includes a proposal to clarify that if an 
adjustment under Sec. 2G2.1(b)(2) applies because of the nature of the 
defendant's relationship with the minor involved in the offense, 
Sec. 3B1.3 does not apply based on an abuse of a position of trust; 
Sec. 3B1.3 may nevertheless apply based on the use of a special skill.
    (A) Proposed Amendment: Section 2G2.1(a) is amended by striking 
``25'' and inserting ``[27][28][29]''.
    The Commentary to Sec. 2G2.1 captioned ``Statutory Provisions'' is 
amended by striking ``Sec. 2251(a), (b), (c)(1)(B)'' and inserting 
``Secs. 2251(a), (b), (c)(1)(B), 2258(a), (b)''.
    The Commentary to Sec. 2G2.1 captioned ``Application Notes'' is 
amended in Note 3 by inserting ``based on an abuse of a position of 
trust'' after ``Use of Special Skill)''.
    Section 2G2.2(a) is amended by striking ``15'' and inserting 
``[17][18][19]''. 

[[Page 7038]]

    Section 2G2.2(b) is amended by adding at the end the following new 
subdivision:
    ``(5) If a computer was used to transmit the notice or 
advertisement of the material or to transport or ship the material, 
increase by [2][3][4] levels.''.
    The Commentary to Sec. 2G2.2 captioned ``Statutory Provisions'' is 
amended by inserting ``, 2258(a), (b)'' after ``2252(a)(1)-(3)''.
    Section 2G2.4(a) is amended by striking ``13'' and inserting 
``[15][16][17]''.
    Section 2G2.4(b) is amended by adding at the end the following new 
subdivision:
    ``(3) If the defendant's possession of the material resulted from 
the defendant's use of a computer, increase by [2][3][4] levels.''.
    (B) Additional Issues for Comment: The Commission invites comment 
on whether Sec. 2G2.1 should be amended to add an enhancement to the 
offense level for the use of a computer comparable to the enhancement 
for the use of a computer directed to be added to Secs. 2G2.2 and 2G2.4 
by the Sex Crimes Against Children Prevention Act of 1995. Such an 
amendment to Sec. 2G2.1 would, for example, apply to the use of a 
computer to solicit the participation of minors in sexually explicit 
conduct.
    In addition, the Commission invites comment on whether the 
guidelines in Chapter Two, Part G, Subpart Two should be amended to add 
an application note for each such guideline comparable to the 
application note included in each of the guidelines of Chapter Two, 
Part A, Subpart Three (Criminal Sexual Abuse) which indicates that an 
upward departure may be warranted if the defendant's criminal history 
includes a prior sentence for conduct that is similar to the instant 
offense.
    2. Synopsis of Proposed Amendments: The proposed amendments set 
forth below as Option 1 and Option 2 implement the directive contained 
in section 4 of the Sex Crimes Against Children Prevention Act of 1995. 
That section directs the Commission to increase by at least three 
levels the base offense level for offenses involving the transportation 
of minors with intent to engage in criminal sexual activity under 
section 2423(a) of title 18, United States Code.
    In an effort to further the Commission's goal of simplifying the 
operation of the guidelines, Option 2 also consolidates Secs. 2G1.1 
(Transportation for the Purpose of Prostitution or Prohibited Sexual 
Conduct) and 2G1.2 (Transportation of a Minor for the Purpose of 
Prostitution or Prohibited Sexual Conduct). As proposed under Option 2, 
the base offense level for offenses covered by Sec. 2G1.2 is decreased 
from the current level of 16 to a proposed level of 14 in order to 
effectuate the consolidation of Secs. 2G1.2 and 2G1.1 (which currently 
has a base offense level of 14). However, Option 2 does not reduce the 
overall offense level for offenses covered by Sec. 2G1.2 because the 
specific offense characteristic related to the age of the victim is 
proposed to be increased by two levels to compensate for the reduction 
in the base offense level. That specific offense characteristic would 
then be increased by another three, four, or five levels to implement 
the directive contained in section 4 of the Sex Crimes Against Children 
Prevention Act of 1995. Additionally under Option 2, the specific 
offense characteristics and cross references that now apply only to 
Sec. 2G1.2 are added to Sec. 2G1.1.
    In addition, Option 1 and Option 2 both clarify that if an 
adjustment under Sec. 2G1.2(b)(4) applies because of the nature of the 
defendant's relationship with the minor involved in the offense, 
Sec. 3B1.3 does not apply based on an abuse of a position of trust; 
Sec. 3B1.3 may nevertheless apply based on the use of a special skill.
    (A) Proposed Amendment--Option 1: Section 2G1.2(a) is amended by 
striking ``16'' and inserting ``[19][20][21]''.
    The Commentary to section 2G1.2 captioned ``Statutory Provisions'' 
is amended by striking ``2423'' and inserting ``2423(a)''.
    The Commentary to section 2G1.2 captioned ``Application Notes'' is 
amended in Note 6 by inserting ``based on an abuse of a position of 
trust'' after ``Use of Special Skill)''.
    (B) Proposed Amendment--Option 2 (Consolidation of Secs. 2G1.1 and 
2G1.2): Subpart One of Part G of Chapter Two is amended by striking 
Secs. 2G1.1 and 2G1.2 and inserting the following:
    ``Sec. 2G1.1. Transportation for the Purpose of Prostitution or 
Prohibited Sexual Conduct.
    ``(a) Base Offense Level: 14.
    ``(b) Specific Offense Characteristics.
    ``(1) If the offense involved the use of physical force, or 
coercion by threats or drugs or in any manner, increase by 4 levels.
    ``(2) If the offense involved the transportation of a person who 
(A) has not attained the age of twelve years, increase by [9][10][11] 
levels; (B) has attained the age of twelve years but has not attained 
the age of sixteen years, increase by [7][8][9] levels; or (C) has 
attained the age of sixteen years but has not attained the age of 
eighteen years, increase by [5][6][7] levels.
    ``(3) If subsection (b)(2) applies, and the defendant was a parent, 
relative, or legal guardian of the minor, or if the minor was otherwise 
in the custody, care, or supervisory control of the defendant, increase 
by 2 levels.
    ``(c) Cross References.
    ``(1) If the offense involved causing, transporting, permitting, or 
offering or seeking by notice or advertisement, a minor to engage in 
sexually explicit conduct for the purpose of producing a visual 
depiction of such conduct, apply Sec. 2G2.1 (Sexually Exploiting a 
Minor by Production of Sexually Explicit Visual or Printed Material; 
Custodian Permitting Minor to Engage in Sexually Explicit Conduct; 
Advertisement for Minors to Engage in Production).
    ``(2) If the offense involved criminal sexual abuse, attempted 
criminal sexual abuse, or assault with intent to commit criminal sexual 
abuse, apply Sec. 2A3.1 (Criminal Sexual Abuse; Attempt or Assault with 
the Intent to Commit Criminal Sexual Abuse).
    ``(3) If the offense did not involve transportation for the purpose 
of prostitution, and neither subsection (c)(1) nor (c)(2) is 
applicable, use the offense guideline applicable to the underlying 
prohibited sexual conduct. If no offense guideline is applicable to the 
prohibited sexual conduct, apply Sec. 2X5.1 (Other Offenses).
    ``(d) Special Instructions.
    ``(1) If the offense involved the transportation of more than one 
person, Chapter Three, Part D (Multiple Counts) shall be applied as if 
the transportation of each person had been contained in a separate 
count of conviction.
    ``(2) For the purposes of this guideline, `transportation' includes 
(A) transporting a person for the purpose of prostitution or prohibited 
sexual conduct, and (B) persuading, inducing, enticing, or coercing a 
person to travel for the purpose of prostitution or prohibited sexual 
conduct.
``Commentary
    ``Statutory Provisions: 8 U.S.C. Sec. 1328; 18 U.S.C. Secs. 2421, 
2422, 2423(a).
    ``Application Notes:
    ``1. `Sexually explicit conduct', as used in this guideline, has 
the meaning set forth in 18 U.S.C. Sec. 2256.
    ``2. The enhancement for physical force, or coercion, anticipates 
no bodily injury. If bodily injury results, an upward departure may be 
warranted. See Chapter Five, Part K (Departures).
    ``3. `Coercion', as used in this guideline, includes any form of 
conduct that negates the voluntariness of the behavior of the person 
transported. This factor would apply, for example, where the ability of 
the person being 

[[Page 7039]]
transported to appraise or control conduct was substantially impaired 
by drugs or alcohol. In the case of transportation involving an adult, 
rather than a minor, this characteristic generally will not apply where 
the alcohol or drug was voluntarily taken.
    ``4. For the purposes of Sec. 3B1.1 (Aggravating Role), the persons 
transported are considered participants only if they assisted in the 
unlawful transportation of others.
    ``5. For the purposes of Chapter Three, Part D (Multiple Counts), 
each person transported is to be treated as a separate victim. 
Consequently, multiple counts involving the transportation of different 
persons are not to be grouped together under Sec. 3D1.2 (Groups of 
Closely-Related Counts). Special instruction (c)(1) directs that if the 
relevant conduct of an offense of conviction includes more than one 
person being transported, whether specifically cited in the count of 
conviction or not, each such person shall be treated as if contained in 
a separate count of conviction.
    ``6. Subsection (b)(3) is intended to have broad application and 
includes offenses involving a minor entrusted to the defendant, whether 
temporarily or permanently. For example, teachers, day care providers, 
baby-sitters, or other temporary caretakers are among those who would 
be subject to this enhancement. In determining whether to apply this 
adjustment, the court should look to the actual relationship that 
existed between the defendant and the child and not simply to the legal 
status of the defendant-child relationship.
    ``7. If the adjustment in subsection (b)(3) applies, do not apply 
Sec. 3B1.3 (Abuse of Position of Trust or Use of Special Skill) based 
on an abuse of a position of trust.
    ``8. The cross reference in subsection (c)(1) is to be construed 
broadly to include all instances where the offense involved employing, 
using, persuading, inducing, enticing, coercing, transporting, 
permitting, or offering or seeking by notice or advertisement, a minor 
to engage in sexually explicit conduct for the purpose of producing any 
visual depiction of such conduct.
    ``9. The cross reference at subsection (c)(3) addresses the unusual 
case in which the offense did not involve transportation for the 
purpose of prostitution and neither subsection (c)(1) nor (c)(2) is 
applicable. In such case, the guideline for the underlying prohibited 
sexual conduct is to be used, e.g., Sec. 2A3.2 (Criminal Sexual Abuse 
of a Minor (Statutory Rape) or Attempt to Commit Such Acts) or 
Sec. 2A3.4 (Abusive Sexual Contact or Attempt to Commit Abusive Sexual 
Contact). If there is no offense guideline for the underlying 
prohibited sexual conduct, Sec. 2X5.1 (Other Offenses) is to be 
used.''.
    (C) Additional Issue for Comment: The Commission invites comment on 
whether, as an alternative to the proposed amendments set forth above 
as Option 1 and Option 2, the Commission should apply the enhanced 
offense level required by the congressional directive only if the 
defendant is convicted of 18 U.S.C. 2243(a). Note that section 4 of the 
Sex Crimes Against Children Prevention Act of 1995 directs the 
Commission to increase by at least three levels the base offense level 
for an offense under 18 U.S.C. 2243(a). As proposed for comment under 
Option 1, the enhanced base offense level (increasing the current level 
of 16 to a proposed level of 19, 20, or 21) would apply to all offenses 
to which Sec. 2G1.2 currently applies, not just offenses under 18 
U.S.C. 2243(a). Similarly, as proposed for comment under Option 2, the 
enhanced specific offense characteristic related to the age of the 
victim (increasing the current levels by three, four, or five levels, 
in addition to the two-level increase for that specific offense 
characteristic proposed to be made under Option 2 as a result of the 
consolidation of Secs. 2G1.2 and 2G1.1) would apply to all offenses to 
which Sec. 2G1.2 currently applies.

[FR Doc. 96-4050 Filed 2-22-96; 8:45 am]
BILLING CODE 2210-40-P