[Federal Register Volume 61, Number 52 (Friday, March 15, 1996)]
[Notices]
[Pages 10835-10838]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6271]



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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

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

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SUMMARY: The Commission is considering promulgating an amendment to the 
sentencing guidelines and commentary. This notice sets forth the 
proposed amendment and a synopsis of the issues addressed by the 
amendment as well as an additional issue for comment. The Commission 
seeks comment on the proposed amendment, 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: Written public comment on the amendment and issue for comment 
set forth in this notice should be received by the Commission not later 
than March 29, 1996, in order to be considered by the Commission in the 
promulgation of amendments and in the possible

[[Page 10836]]
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, N.E., Suite 2-500, Washington, D.C. 
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. 994(a). 
The Commission also periodically reviews and revises previously 
promulgated guidelines pursuant to 28 U.S.C. 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. 994(p).
    The proposed amendment as presented in this notice contains 
bracketed text to indicate 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.
    Previously this year, the Commission published proposed amendments 
for consideration in this year's amendment cycle in order to implement 
congressional directives in the Sex Crimes Against Children Prevention 
Act of 1995. (See the notice dated February 23, 1996, 61 FR 7037-7039). 
The amendment presented in this notice is proposed in order to address 
18 U.S.C. 2422(b), a new offense created by the Telecommunications Act 
of 1996. The amendment, which is proposed to be made to 2G1.2 
(Transportation of a Minor for the Purpose of Prostitution or 
Prohibited Sexual Conduct), incorporates the amendments already 
proposed this year to implement section 4 of the Sex Crimes Against 
Children Prevention Act of 1995.

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

Sex Offenses Against Minors

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

1. Synopsis of Proposed Amendment
    This is a two-part amendment. First, the amendment implements the 
directive contained in section 4 of the Sex Crimes Against Children 
Prevention Act of 1995, which directs the Commission to increase the 
base offense level for an offense under section 2423(a) of title 18, 
United States Code, by at least three levels. Second, the amendment 
addresses 18 U.S.C. 2422(b), a new offense created by section 508 of 
the Telecommunications Act of 1996. That offense makes it unlawful, 
through the use of any facility or means of interstate or foreign 
commerce, including the mail, or within the special maritime or 
territorial jurisdiction of the United States, to knowingly persuade, 
induce, entice, or coerce an individual under the age of 18 years to 
engage in prostitution or any sexual act for which a person may be 
criminally prosecuted. Currently, Sec. 2G1.2 applies to transporting a 
person for the purpose of prostitution or prohibited sexual conduct and 
to persuading, inducing, enticing, and coercing a person to travel for 
either such purpose. By proposing to make Sec. 2G1.2 applicable to the 
new offense under 18 U.S.C. 2422(b), this amendment would expand the 
scope of Sec. 2G1.2 to include an offense that involves promoting 
prostitution or prohibited sexual conduct through a means other than 
transportation or travel.
    Two options are shown. Each option addresses the issues described 
in the preceding paragraphs. 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 reduced 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 two-level 
increase is in addition to the three-level increase directed to be made 
by the Sex Crimes Against Children Prevention Act of 1995, as described 
above.) 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.
    (A) Proposed Amendment--Option 1:
    Section 2G1.2 is amended to read as follows:

``Sec. 2G1.2. Promoting Prostitution Involving a Minor or Prohibited 
Sexual Conduct Involving a Minor
    ``(a) Base Offense Level: [19][20][21]
    ``(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 a victim under the age of twelve 
years, increase by 4 levels.
    ``(3) If the offense involved a victim at least twelve years of age 
but under the age of sixteen years, increase by 2 levels.
    ``(4) If (A) the defendant was a parent, relative, or legal 
guardian of the victim involved in the offense, and the victim was less 
than eighteen years of age, or (B) the victim involved in the offense 
was less than eighteen years of age and 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 person less than 
eighteen years of age 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 neither subsection (c)(1) nor (c)(2) is applicable, and 
the offense did not involve promoting

[[Page 10837]]
prostitution, apply Sec. 2A3.2 (Criminal Sexual Abuse of a Minor or 
Attempt to Commit Such Acts) or Sec. 2A3.4 (Abusive Sexual Contact or 
Attempt to Commit Abusive Sexual Contact), as appropriate.
    ``(d) Special Instructions
    ``(1) If the offense involved more than one victim, Chapter Three, 
Part D (Multiple Counts) shall be applied as if the promoting of 
prostitution or prohibited sexual conduct in respect to each victim had 
been contained in a separate count of conviction.
    ``(2) For the purposes of this guideline--
    ``(A) `Coercion' includes any form of behavior that negates the 
voluntariness of the behavior of the victim.
    ``(B) `Promoting prostitution or prohibited sexual conduct' means 
(i) transporting a person for the purpose of prostitution or prohibited 
sexual conduct, or
    (ii) persuading, inducing, enticing, or coercing a person to travel 
for the purpose of, or to engage in, prostitution or prohibited sexual 
conduct.
    ``(C) `Sexually explicit conduct has the meaning set forth in 18 
U.S.C. Sec. 2256.
    ``(D) `Victim' means a person transported, persuaded, induced, 
enticed, or coerced to engage in prostitution or prohibited sexual 
conduct, whether or not the person consented to the 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. For the purposes of Chapter Three, Part D (Multiple Counts), 
each person transported, persuaded, induced, enticed, or coerced to 
engage in prostitution or prohibited sexual conduct is to be treated as 
a separate victim. Consequently, multiple counts involving more than 
one victim are not to be grouped together under Sec. 3D1.2 (Groups of 
Closely-Related Counts). Special instruction (d)(1) directs that if the 
relevant conduct of an offense of conviction includes the promoting of 
prostitution or prohibited sexual conduct in respect to more than one 
person, 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.
    ``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 defined in this guideline, would apply, for 
example, where the ability of the victim to appraise or control conduct 
was substantially impaired by drugs or alcohol.
    ``4. Subsection (b)(4) is intended to have broad application and 
includes offenses involving a victim less than eighteen years of age 
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 
victim and not simply to the legal status of the defendant-victim 
relationship.
    ``5. If the adjustment in subsection (b)(4) applies, do not apply 
Sec. 3B1.3 (Abuse of Position of Trust or Use of Special Skill).
    ``6. 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 person 
less than eighteen years of age to engage in sexually explicit conduct 
for the purpose of producing any visual depiction of such conduct.''.
    (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. Promoting 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 a victim who has (A) not attained the 
age of twelve years, increase by [9][10][11] levels; (B) attained the 
age of twelve years but not attained the age of sixteen years, increase 
by [7][8][9] levels; or (C) attained the age of sixteen years but not 
attained the age of eighteen years, increase by [5][6][7] levels.
    ``(3) If subsection (b)(2) applies, and (A) the defendant was a 
parent, relative, or legal guardian of the victim, or (B) the victim 
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 person less than 
eighteen years of age 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 promoting 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 more than one victim, Chapter Three, 
Part D (Multiple Counts) shall be applied as if the promoting of 
prostitution or prohibited sexual conduct in respect to each victim had 
been contained in a separate count of conviction.
    ``(2) For the purposes of this guideline--
    ``(A) `Coercion' includes any form of conduct that negates the 
voluntariness of the behavior of the victim.
    ``(B) `Promoting prostitution or prohibited sexual conduct' means 
(i) transporting a person for the purpose of prostitution or prohibited 
sexual conduct, or (ii) persuading, inducing, enticing, or coercing a 
person to travel for the purpose of, or to engage in, prostitution or 
prohibited sexual conduct.
    ``(C) `Sexually explicit conduct' has the meaning set forth in 18 
U.S.C. 2256.
    ``(D) `Victim' means a person transported, persuaded, induced, 
enticed, or coerced to engage in prostitution or prohibited sexual 
conduct, whether or not the person consented to the prostitution or 
prohibited sexual conduct.

    ``Commentary
    
[[Page 10838]]

    ``Statutory Provisions: 8 U.S.C. 1328; 18 U.S.C. 2421, 2422, 
2423(a).
    ``Application Notes:
    ``1. 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).
    ``2. Coercion, as defined in this guideline, would apply, for 
example, where the ability of the victim to appraise or control conduct 
was substantially impaired by drugs or alcohol. In the case of an adult 
victim, rather than a victim less than eighteen years of age, this 
characteristic generally will not apply where the alcohol or drug was 
voluntarily taken.
    ``3. For the purposes of Sec. 3B1.1 (Aggravating Role), a victim, 
as defined in this guideline, is considered a participant only if that 
victim assisted in the promoting of prostitution or prohibited sexual 
conduct in respect to others.
    ``4. For the purposes of Chapter Three, Part D (Multiple Counts), 
each person transported, persuaded, induced, enticed, or coerced to 
engage in prostitution or prohibited sexual conduct is to be treated as 
a separate victim. Consequently, multiple counts involving more than 
one victim 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 the promoting of 
prostitution or prohibited sexual conduct in respect to more than one 
person, 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.
    ``5. Subsection (b)(3) is intended to have broad application and 
includes offenses involving a victim less than eighteen years of age 
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 
victim and not simply to the legal status of the defendant-victim 
relationship.
    ``6. If the adjustment in subsection (b)(3) applies, do not apply 
Sec. 3B1.3 (Abuse of Position of Trust or Use of Special Skill).
    ``7. 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 person 
less than eighteen years of age to engage in sexually explicit conduct 
for the purpose of producing any visual depiction of such conduct.
    ``8. The cross reference at subsection (c)(3) addresses the unusual 
case in which the offense did not involve promoting 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.''.

[FR Doc. 96-6271 Filed 3-14-96; 8:45 am]
BILLING CODE 2210-40-P