[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Notices]
[Pages 20306-20309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11174]



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UNITED STATES SENTENCING COMMISSION


Amendments to the Sentencing Guidelines for United States Courts

agency: United States Sentencing Commission.

action: Notice of submission to Congress of amendments to the 
sentencing guidelines.

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summary: Pursuant to its authority under section 994(p) of title 28, 
United States Code, the United States

[[Page 20307]]

Sentencing Commission, on May 1, 1996, submitted to the Congress 
amendments to the sentencing guidelines, policy statements, and 
official commentary together with reasons for the amendments. Pursuant 
to 28 U.S.C. 994(p), the Commission has specified an effective date of 
November 1, 1996, for these amendments.

addresses: Comments should be sent to: United States Sentencing 
Commission, One Columbus Circle, NE., Suite 2-500, South Lobby, 
Washington, DC 20002-8002, Attn: Public Information.

for further information contact: Mike Courlander, Public Information 
Specialist, telephone: (202) 273-4590.

supplementary information: The United States Sentencing Commission, an 
independent agency in the judicial branch of the U.S. Government, is 
empowered by 28 U.S.C. 994(a) to promulgate sentencing guidelines and 
policy statements for federal sentencing courts. The statute further 
directs the Commission periodically to review and revise guidelines 
previously promulgated and authorizes it to submit guideline amendments 
to the Congress no later than the first day of May each year. See 28 
U.S.C. 994(o), (p). Absent action of Congress to the contrary, the 
amendments become effective on the date specified by the Commission 
(i.e., November 1, 1996) by operation of law.
    Notice of the amendments submitted to the Congress on April 30, 
1996, was published in the Federal Register of February 23, 1996 (61 FR 
7037) and March 15, 1996 (61 FR 10835). A public hearing on the 
proposed amendments was held in Washington, DC, on March 11, 1996. 
After review of the hearing testimony and additional public comment, 
the Commission promulgated the amendments set forth below, each having 
been approved by at least four voting Commissioners.
    In connection with its ongoing process of guideline review, the 
Commission welcomes comment on any aspect of the sentencing guidelines, 
policy statements, and official commentary.

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

Amendments to the Sentencing Guidelines

    Pursuant to section 994(p) of title 28, United States Code, the 
United States Sentencing Commission hereby submits to the Congress the 
following amendments to the sentencing guidelines and the reasons 
therefor. As authorized by such section, the Commission specifies an 
effective date of November 1, 1996, for these amendments.

Amendments to the Sentencing Guidelines, Policy Statements, and 
Official Commentary

    1. Amendment: Section 2G2.1(a) is amended by striking ``25'' and 
inserting ``27''.
    Section 2G2.1(b)(1) is amended to read as follows:
    ``(1) If the offense involved a victim who had (A) not attained the 
age of twelve years, increase by 4 levels; or (B) attained the age of 
twelve years but not attained the age of sixteen years, increase by 2 
levels.''.
    Section 2G2.1(b) is amended by adding at the end the following:
    ``(3) If a computer was used to solicit participation by or with a 
minor in sexually explicit conduct for the purpose of producing 
sexually explicit material, increase by 2 levels.''.
    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)''.
    Section 2G2.2(a) is amended by striking ``15'' and inserting 
``17''.
    Section 2G2.2(b) is amended by adding at the end the following:
    ``(5) If a computer was used for the transmission of the material 
or a notice or advertisement of the material, increase by 2 levels.''.
    The Commentary to Sec. 2G2.2 captioned ``Statutory Provisions'' is 
amended by inserting ``2258 (a), (b)'' after ``2252(a) (1)-(3)''.
    The Commentary to Sec. 2G2.2 captioned ``Application Notes'' is 
amended by striking Notes 4 and 5; and by amending Notes 1 and 2 to 
read as follows:
    ``1. For purposes of this guideline--
    `` `Distribution' includes any act related to distribution for 
pecuniary gain, including production, transportation, and possession 
with intent to distribute.
    `` `Pattern of activity involving the sexual abuse or exploitation 
of a minor' means any combination of two or more separate instances of 
the sexual abuse or sexual exploitation of a minor by the defendant, 
whether or not the abuse or exploitation (A) occurred during the course 
of the offense, (B) involved the same or different victims, or (C) 
resulted in a conviction for such conduct.
    `` `Sexual abuse or exploitation' means conduct constituting 
criminal sexual abuse of a minor, sexual exploitation of a minor, 
abusive sexual contact of a minor, any similar offense under state law, 
or an attempt or conspiracy to commit any of the above offenses. 
`Sexual abuse or exploitation' does not include trafficking in material 
relating to the sexual abuse or exploitation of a minor.
    `` `Sexually explicit conduct' has the meaning set forth in 18 
U.S.C. Sec. 2256.
    ``2. If the defendant engaged in the sexual abuse or exploitation 
of a minor at any time (whether or not such abuse or exploitation 
occurred during the course of the offense or resulted in a conviction 
for such conduct) and subsection (b)(4) does not apply, an upward 
departure may be warranted. In addition, and upward departure may be 
warranted if the defendant received an enhancement under subsection 
(b)(4) but that enhancement does not adequately reflect the seriousness 
of the sexual abuse or exploitation involved.
    ``Prior convictions taken into account under subsection (b)(4) are 
also counted for purposes of determining criminal history points 
pursuant to Chapter Four, Part A (Criminal History).''.
    Section 2G2.4(a) is amended by striking ``13'' and inserting 
``15''.
    Section 2G2.4(b) is amended by adding at the end the following:
    ``(3) If the defendant's possession of the material resulted from 
the defendant's use of a computer, increase by 2 levels.''.
Reason for Amendment
    This amendment implements the congressional directives in section 2 
of the Sex Crimes Against Children Prevention Act of 1995, Pub. L. 104-
71, 109 Stat. 774, by providing a two-level enhancement for offenses 
involving the sexual exploitation of minors under sections 2251 and 
2252 of title 18, United States Code. The two-level enhancement is 
provided in the base offense levels under Secs. 2G2.1, 2G2.2, and 
2G2.4.
    This amendment also implements the directive in section 3 of such 
Act by providing a two-level enhancement for offenses under sections 
2251(c)(1)(A) and 2252 of title 18, United States Code, if a computer 
was used to transmit certain notices or advertisements of material 
involving minors engaged in sexually explicit conduct or to transport 
or ship that material. The enhancement in Sec. 2G2.2(b)(5) applies to 
the transmission of the material or of the notice or advertisement of 
the material. The enhancement in Sec. 2G2.4(b)(3) applies only if the 
defendant's possession of the material resulted from the defendant's 
use of a computer. In addition to these congressionally directed 
enhancements, the amendment adds a two-level enhancement under 
Sec. 2G2.1(b)(3) if a computer was used to solicit participation in 
sexually explicit

[[Page 20308]]

conduct by or with a minor for the purpose of producing sexually 
explicit material, in violation of 18 U.S.C. Sec. 2251(c)(1)(B).
    This amendment also addresses several issues in respect to 
Application Notes 4 and 5 of the Commentary to Sec. 2G2.2. First, the 
amendment revises the definition of ``pattern of activity involving the 
sexual abuse or exploitation of a minor'' to clarify that ``sexual 
abuse or exploitation,'' for purposes of Sec. 2G2.2(b)(4), requires 
that the defendant personally had participated in such conduct. The 
amendment defines ``sexual abuse or exploitation'' to mean conduct 
constituting criminal sexual abuse, sexual exploitation, or abusive 
sexual contact and to exclude trafficking in child pornography. These 
revisions are consistent with United States v. Chapman, 60 F.3d 894 
(1st Cir. 1995) and United States v. Ketcham, No. 95-5002, 1996 WL 
141628 (3d Cir. Mar. 29, 1996), both of which held that the defendant's 
transportation or distribution of child pornography is not sexual 
exploitation within the meaning of the ``pattern of activity'' 
enhancement in Sec. 2G2.2(b)(4). Second, the amendment clarifies that 
the ``pattern of activity'' may include acts of sexual abuse or 
exploitation that were not committed during the course of the offense 
or that did not result in a conviction. This revision responds in part 
to the holding in Chapman, 60 F.3d at 901, that the ``pattern of 
activity'' enhancement is inapplicable to past sexual abuse or 
exploitation unrelated to the offense of conviction. The amended 
language provides that conduct involving the defendant's sexual abuse 
or exploitation of a minor may be considered even if that conduct did 
not occur as part of the offense of conviction. Accordingly, the 
conduct considered for purposes of the ``pattern of activity'' 
enhancement is broader than the scope of relevant conduct typically 
considered under Sec. 1B1.3 (Relevant Conduct). Third, the amendment 
revises the departure provision of Application Note 5 to specify that 
an upward departure may be warranted if the defendant (1) did not 
engage in a ``pattern of activity'' but nevertheless abused a minor at 
any time, or (2) engaged in a ``pattern of activity'' but the 
enhancement does not adequately reflect the seriousness of the sexual 
abuse or exploitation. Fourth, the amendment clarifies that prior 
convictions counted as part of the ``pattern of activity'' also may be 
counted as part of the defendant's criminal history under Chapter Four, 
if those convictions meet the criteria set forth in the relevant 
guidelines of that chapter.
    The amendment also makes the ``Statutory Provisions'' of the 
Commentary to Secs. 2G2.1 and 2G2.2 more comprehensive by adding 18 
U.S.C. Sec. 2258 (a) and (b) to the list of provisions covered by those 
guidelines.
    2. Amendment: Chapter 2, Part G, Subpart 1 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 had (A) not attained the 
age of twelve years, increase by 9 levels; (B) attained the age of 
twelve years but not attained the age of sixteen years, increase by 7 
levels; or (C) attained the age of sixteen years but not attained the 
age of eighteen years, increase by 5 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 Instruction

    ``(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.
``Commentary
    ``Statutory Provisions: 8 U.S.C. Sec. 1328; 18 U.S.C. Secs. 2421, 
2422, 2423(a).
``Application Notes:
    ``1. For purposes of this guideline--
    `` `Coercion' includes any form of conduct that negates the 
voluntariness of the behavior of the victim. Coercion 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 if the drug or alcohol was 
voluntarily taken.
    `` `Promoting prostitution or prohibited sexaul conduct' means (A) 
transporting a person for the purpose of prostitution or prohibited 
sexual conduct, or (B) persuading, inducing, enticing, or coercing a 
person to engage in, or travel for the propose of engaging in, 
prostitution or prohibited sexual conduct.
    `` `Sexually explicit conduct' has the meaning set forth in 18 
U.S.C. Sec. 2256.
    `` `Victim' means a person transported, persuaded, induced, 
enticed, or coerced to engage in, or travel for the purpose of engaging 
in, prostitution or prohibited sexual conduct, whether or not the 
person consented to the prostitution or prohibited sexual conduct.
    ``(2). The enactment 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. 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 another victim.
    ``4. For the purposes of Chapter Three, Part D (Multiple Counts), 
each person transported, persuaded, induced, enticed, or coerced to 
engage in, or travel 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). In addition, 
subsection (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

[[Page 20309]]

victim, whether specifically cited in the count of conviction or not, 
each such victim 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 of 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 Minor (Statutory Rape) or 
Attempt to Commit Such Acts) or Sec. 2A3.4 (Abusive Sexual Contact or 
Attempt to Commit Abusive Sexual Contact). If three is no offense 
guideline for the underlying prohibited sexual conduct, Sec. 2X5.1 
(Other Offenses) is to be used.''.
    Chapter 1, Part A, Subpart 4(b) is amended in the fourth paragraph 
by striking the third sentence.
    Section 3D1.2(d) is amended in the third paragraph by striking 
``2G1.2,''.
    Appendix A is amended--

in the line referenced to 8 U.S.C. Sec. 1328, by striking ``, 2G1.2'';
in the line referenced to 18 U.S.C. Sec. 2421, by striking ``, 2G1.2'';
in the line referenced to 18 U.S.C. Sec. 2422, by striking ``, 2G1.2''; 
and
in the line referenced to 18 U.S.C. Sec. 2423(a), by striking ``, 
2G1.2'' and inserting ``2G1.1''.
Reason for Amendment
    This is a three-part amendment. First, this amendment implements 
the congressional directive in section 4 of the Sex Crimes Against 
Children Prevention Act of 1995, Pub. L. No. 104-71, 109 Stat. 774, by 
providing a three-level enhancement for offenses involving the 
transportation of minors with intent to engage in prostitution or other 
prohibited sexual conduct under 18 U.S.C. Sec. 2423(a). The three-level 
enhancement is provided in the specific offense characteristic in 
subsection (b)(2) related to the age of the victim.
    Second, this amendment addresses 18 U.S.C. Sec. 2422(b), a new 
offense created by section 508 of the Telecommunications Act of 1996, 
Pub. L. No. 104-104, 110 Stat. 56. That offense makes it unlawful, in 
interstate or foreign commerce, including through 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 other prohibited 
sexual conduct. The amendment brings this new offense within the scope 
of the consolidated, expanded guideline. As revised, the guideline is 
broadly applicable to offenses that involve ``promoting prostitution or 
prohibited sexual conduct.'' That term is defined to encompass conduct 
covered by the new Telecommunications Act offense as well as conduct 
previously covered by the guideline; i.e., transporting a person, or 
inducing a person to travel, for the purpose of prostitution or other 
prohibited sexual conduct.
    Third, this amendment 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) in furtherance of the Commission's goal to 
simplify the operation of the guidelines. Because the consolidated 
guideline covers both offenses involving adult victims and those 
involving minors, a two-level increase is provided in the specific 
offense characteristic related to the age of the victim to increase the 
offense level when a minor is involved. The two-level increase is in 
addition to the three-level enhancement directed to be made by the Sex 
Crimes Against Children Prevention Act of 1995. In addition, the 
consolidated guideline defines the term ``victim'' and incorporates the 
cross references of Sec. 2G1.2 into the consolidate guideline. The 
amendment also clarifies that the ``Statutory Provisions'' in the 
Commentary of the consolidated guideline cover offenses under 18 U.S.C. 
Sec. 2423(a (but not Sec. 2423b), which is referenced in Appendix A to 
Secs. 2A3.1, 2A3.2, and 2A3.3).

[FR Doc. 96-11174 Filed 5-3-96; 8:45 am]
BILLING CODE 2210-40-M