[Federal Register Volume 63, Number 162 (Friday, August 21, 1998)]
[Notices]
[Pages 44941-44942]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22526]


=======================================================================
-----------------------------------------------------------------------

UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Request for public comment.

-----------------------------------------------------------------------

SUMMARY: Pursuant to its authority under 28 U.S.C. 994(o) and (p), and 
the ``emergency authority'' in section 6(d) of the Telemarketing Fraud 
Prevention Act of 1998, Pub. L. 105-184 (the ``Act''), the Commission 
requests comment on several issues pertaining to the directive 
contained in the Act. Specifically, the Commission seeks comment on how 
the Act's directive, to substantially increase the penalties for 
persons convicted of offenses described in 18 U.S.C. 2326 in connection 
with the conduct of telemarketing fraud, interacts with the mass-
marketing and sophisticated concealment amendments submitted to 
Congress by the Commission on May 1, 1998. (These amendments were 
published in the Federal Register of May 21, 1998 (63 FR 28203-04)).

DATES: Written public comment should be submitted to the Commission not 
later than September 10, 1998. The emergency authority provision of the 
Act requires the Commission to promulgate any necessary amendments and 
submit them to Congress not later than October 21, 1998.


[[Page 44942]]


ADDRESS: 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 Affairs.

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

    Authority: 28 U.S.C. 994 (a), (o), (p), (x); section 6(d) of 
Pub. L. 105-184.

Richard P. Conaboy,
Chairman.

Issues for Comment--Telemarketing Fraud

    During the 1997-98 amendment cycle, the Commission examined the 
characteristics of telemarketing fraud offenses, the statutory 
enhancement for telemarketing fraud in 18 U.S.C. 2326, and whether the 
current enhancements in Sec. 2F1.1 (Fraud), Sec. 3A1.1 (Hate Crime 
Motivation or Vulnerable Victim), and the departure policy statements 
in Sec. 5K2.0-Sec. 5K2.18 provide adequate punishment for persons 
convicted of telemarketing fraud offenses. The Commission published 
issues for comment relating to this review in January, 1998. See 63 FR 
625-26 (January 6, 1998). Following this review, the Commission, on May 
1, 1998, submitted to Congress an amendment that increases by two 
offense levels (approximately 25 percent) the penalties for fraud 
offenses that are committed through mass-marketing, including 
telemarketing fraud offenses (the ``mass-marketing'' amendment). See 63 
FR 28203-04 (May 21, 1998). That amendment also provided a two-level 
increase and a ``floor'' offense level of level 12 for fraud offenses 
that involve conduct, such as sophisticated concealment, that makes it 
difficult for law enforcement authorities to discover the offense or 
apprehend the offenders (the ``sophisticated concealment'' amendment). 
These amendments are slated to take effect on November 1, 1998, absent 
any disapproval legislation enacted by Congress.
    Subsequently, on June 23, 1998, Congress enacted the Telemarketing 
Fraud Prevention Act of 1998 (Pub. L. 105-184; 112 Stat. 520) (the 
``Act''), which directs the Commission, under emergency amendment 
authority, ``to provide for substantially increased penalties for 
persons convicted of offenses described in (18 U.S.C. 2326] * * * in 
connection with the conduct of telemarketing.'' In carrying out this 
directive, the Commission is required, among other things, to ``(1) 
ensure that the guidelines and policy statements promulgated pursuant 
to [the directive] * * * reflect the serious nature of [telemarketing] 
offenses; (2) provide an additional appropriate sentencing enhancement, 
if the offense involved sophisticated means, including but not limited 
to sophisticated concealment efforts, such as perpetrating the offense 
from outside the United States; [and] (3) provide an additional 
appropriate sentencing enhancement for cases in which a large number of 
vulnerable victims, including but not limited to victims described in 
[18 U.S.C. 2326(2) (victims over the age of 55)], are affected by a 
fraudulent scheme or schemes.''
    With this as background, the Commission invites comment on the 
issues that follow relating to: (1) How the Commission should respond 
to the directive in the Act; and (2) the interaction of this directive 
and the Commission's mass-marketing and sophisticated concealment 
amendments submitted to Congress on May 1, 1998.
    1. Do the recently adopted mass-marketing and sophisticated 
concealment amendments adequately address the congressional directive 
to provide for ``substantially increased penalties for persons 
convicted of offenses described in (18 U.S.C. 2326) * * * in connection 
with the conduct of telemarketing''? If not, how should the Commission 
modify the recent amendments or otherwise amend the guidelines to 
satisfy the directive? If an enhancement of greater magnitude is 
necessary, by how many offense levels should the sentence for such 
offenders be increased? Alternatively, are there additional factors 
that the Commission should address, either by specific offense 
characteristics, guideline commentary, or departure provisions, to 
provide appropriate punishment for telemarketing offenses?
    2. The mass-marketing amendment is intended to apply to persons who 
engage in a plan to victimize a large number of persons through a 
fraudulent telemarketing scheme. Does this amendment adequately address 
the directive ``to provide an additional appropriate sentencing 
enhancement for cases in which a large number of vulnerable victims, 
including but not limited to victims described in [18 U.S.C. 2326(2) 
(victims over the age of 55)], are affected by a fraudulent scheme or 
schemes''? What is the meaning of the term ``large number'' (in that 
part of the directive that refers to a large number of vulnerable 
victims)? Does application of this new enhancement, in conjunction with 
other guideline provisions, such as the enhancement for more than one 
victim (Sec. 2F1.1(b)(2)) and the vulnerable victim adjustment 
(Sec. 3A1.1), comply with the directive? If not, what amendment or 
amendments would satisfy the directive?
    3. Does the sophisticated concealment amendment adequately address 
the directive ``to provide an additional appropriate sentencing 
enhancement, if the offense involved sophisticated means, including but 
not limited to sophisticated concealment efforts, such as perpetrating 
the offense from outside the United States''? If not, what amendment or 
amendments would satisfy the directive?
    4. Are there other provisions contained in the directive, not 
specifically addressed in this issue for comment, that require the 
Commission to amend the guidelines?
    5. If additional guideline amendments are required to satisfy the 
congressional directive, how should those amendments be coordinated 
with general increases in fraud penalties (e.g., increases in the loss 
table) that the Commission may consider at some future date in order to 
ensure consistent and proportional sentencing for similar types of 
fraud offenses?

[FR Doc. 98-22526 Filed 8-20-98; 8:45 am]
BILLING CODE 2210-40-P