[Federal Register Volume 65, Number 11 (Tuesday, January 18, 2000)]
[Notices]
[Pages 2663-2668]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-1075]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY:  United States Sentencing Commission.

ACTION:  Notice of proposed permanent amendments to the sentencing 
guidelines, policy statements, and commentary. Request for comment. 
Notice of public hearing.

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SUMMARY:  The Commission hereby gives notice of the following actions: 
(1) Two options for amending Sec. 2D1.1 (Unlawful Manufacturing, 
Importing, Exporting, Trafficking, or Possession) to increase the 
penalties for methamphetamine offenses in response to the increased 
mandatory minimum penalties made by the Methamphetamine Trafficking 
Penalty Enhancement Act of 1998, Pub. L. 105-277; and (2) two options 
for amending Sec. 2F1.1 (Fraud and Deceit) to implement the directive 
in the Identity Theft and Assumption Deterrence Act of 1998, Pub. L. 
105-318.
    The proposed amendments are presented in one of two formats. First, 
the amendments are proposed as specific revisions to the relevant 
guidelines and accompanying commentary. Bracketed text within a 
proposed amendment indicates that the Commission invites comment and 
suggestions for alternative policy choices; for example, a proposed 
enhancement of [2] levels indicates that the Commission is considering, 
and invites comment on, alternative policy choices regarding the 
appropriate level of enhancement. Second, the Commission has 
highlighted certain issues for comment and invites suggestions for how 
the Commission should respond to those issues.

DATES:  (1) Proposed amendments.--Comment on the proposed amendments 
and issues for comment should be received by the Commission not later 
than March 10, 2000. (2) Public hearing.--The Commission has scheduled 
a public hearing for March 23, 2000, at the Thurgood Marshall Federal 
Judiciary Building, One Columbus Circle, N.E. Washington, D.C. 20002-
8002 (time to be announced). The scope of the hearing is expected to 
include all permanent amendments that are proposed for action in this 
amendment cycle ending May 1, 2000, including the proposed re-
promulgation of the temporary, emergency telemarketing fraud amendment 
described in 64 FR 72129 (1999). A person who desires to testify at the 
public hearing should notify Michael Courlander, Public Affairs 
Officer, at (202) 502-4590 not later than March 10, 2000. Written 
testimony for the hearing must be received by the Commission not later 
than March 16, 2000. Submission of written testimony is a requirement 
for testifying at the public hearing.

ADDRESSES:  Send comments to: United States Sentencing Commission, One 
Columbus Circle, NE, Suite 2-500 South, Washington, DC 20002-8002, 
Attention: Public Information-Public Comment.

FOR FURTHER INFORMATION CONTACT:  Michael Courlander, Public Affairs 
Officer, Telephone: (202) 502-4590.

SUPPLEMENTARY INFORMATION:  Reports and other additional information 
pertaining to the proposed amendments described in this notice may be 
accessed through the Commission's website at www.ussc.gov.

    Authority: 28 U.S.C. 994(a), (o), (p), (x); USSC Rules of 
Practice and Procedure 4.3, 4.4.

Diana E. Murphy,
Chair.

Proposed Amendment: Methamphetamine

    (1) Synopsis of Proposed Amendment: This proposed amendment 
responds to the Methamphetamine Trafficking Penalty Enhancement Act of 
1998, Pub. L. 105-277. That Act effectively increased the mandatory 
minimum sentences for methamphetamine trafficking offenses by cutting 
in half the quantities of methamphetamine mixture and methamphetamine 
substance (i.e., methamphetamine-actual) necessary to trigger the five-
and ten-year mandatory minimum statutory penalties applicable to 
methamphetamine trafficking offenses. Under 21 U.S.C. 
841(b)(1)(B)(viii), as amended by the Act, the 5-year mandatory minimum 
is triggered if the offense involves 5 grams or more of 
methamphetamine-actual or 50 grams or more of methamphetamine-mixture. 
Under 21 U.S.C. 841(b)(1)(A)(viii), as amended by the Act, the 10-year 
mandatory minimum is triggered if the offense involves 50 grams or more 
of methamphetamine-actual or 500 grams or more of methamphetamine-
mixture. This proposed amendment presents two options for changes to 
the guideline for drug trafficking, Sec. 2D1.1, particularly the Drug 
Quantity Table, that would respond to the Act.
    Option 1 changes the calculations in the Drug Quantity Table in 
Sec. 2D1.1 for methamphetamine substance (i.e., methamphetamine-actual) 
and ``Ice'' (i.e., d-methamphetamine hydrochloride of at least 80% 
purity) to conform the quantities for those drugs to the quantities 
that now trigger the statutory 5- and 10-year mandatory minimums.
    Option 2 generally proposes to eliminate the distinction between 
methamphetamine-actual and

[[Page 2664]]

methamphetamine-mixture and generally sentence all methamphetamine 
offenses based on the weight of pure methamphetamine. There are two 
exceptions to this general rule. The first exception would continue the 
guideline presumption that ``Ice'' methamphetamine is 100 percent pure, 
even though in reality it is typically only 80-90 percent pure. Thus, 
if the offense involved ``Ice'', the weight of the entire ``Ice'' 
mixture would be used. The second exception would address the situation 
in which the purity of the methamphetamine-mixture in a given case may 
not always be known or readily determinable. To handle the contingency 
of unknown purity, the guidelines could establish a presumptive purity 
of, perhaps, 50 percent to be used only when purity is unknown.
    An issue for comment follows the presentation of the options 
regarding whether the Commission should consider making changes to the 
Drug Equivalency Table in Sec. 2D1.1, relating to Phenylacetone/P2P, 
when possessed for the purpose of manufacturing methamphetamine, and 
whether it should change the Chemical Quantity Table in Sec. 2D1.11, 
relating to any chemical referenced in that table that is used to 
manufacture methamphetamine, in order to reflect the increased harm 
associated with methamphetamine offenses.

Proposed Amendment--Option 1

    Section 2D1.1(c)(1) is amended by striking ``3 KG or more'' before 
``of Methamphetamine (actual)'' and inserting ``1.5 KG or more'' and by 
striking ``3 KG or more'' before ``of `Ice' '' and inserting ``1.5 KG 
or more''.
    Section 2D1.1(c)(2) is amended by striking ``at least 1 KG but less 
than 3 KG'' before ``of Methamphetamine (actual)'' and inserting ``at 
least 500 G but less than 1.5 KG'' and by striking ``at least 1 KG but 
less than 3 KG'' before ``of `Ice' '' and inserting ``at least 500 G 
but less than 1.5 KG''.
    Section 2D1.1(c)(3) is amended by striking ``at least 300 G but 
less than 1 KG'' before ``of Methamphetamine (actual)'' and inserting 
``at least 150 G but less than 500 G'' and by striking ``at least 300 G 
but less than 1 KG'' before ``of `Ice' '' and inserting ``at least 150 
G but less than 500 G''.
    Section 2D1.1(c)(4) is amended by striking ``at least 100 G but 
less than 300 G'' before ``of Methamphetamine (actual)'' and inserting 
``at least 50 G but less than 150 G'' and by striking ``at least 100 G 
but less than 300 G'' before ``of `Ice' '' and inserting ``at least 50 
G but less than 150 G''.
    Section 2D1.1(c)(5) is amended by striking ``at least 70 G but less 
than 100 G'' before ``of Methamphetamine (actual)'' and inserting ``at 
least 35 G but less than 50 G'' and by striking ``at least 70 G but 
less than 100 G'' before ``of `Ice' '' and inserting ``at least 35 G 
but less than 50 G''.
    Section 2D1.1(c)(6) is amended by striking ``at least 40 G but less 
than 70 G'' before ``of Methamphetamine (actual)'' and inserting ``at 
least 20 G but less than 35 G'' and by striking ``at least 40 G but 
less than 70 G'' before ``of `Ice' '' and inserting ``at least 20 G but 
less than 35 G''.
    Section 2D1.1(c)(7) is amended by striking ``at least 10 G but less 
than 40 G'' before ``of Methamphetamine (actual)'' and inserting ``at 
least 5 G but less than 20 G'' and by striking ``at least 10 G but less 
than 40 G'' before ``of `Ice' '' and inserting ``at least 5 G but less 
than 20 G''.
    Section 2D1.1(c)(8) is amended by striking ``at least 8 G but less 
than 10 G'' before ``of Methamphetamine (actual)'' and inserting ``at 
least 4 G but less than 5 G'' and by striking ``at least 8 G but less 
than 10 G'' before ``of `Ice' '' and inserting ``at least 4 G but less 
than 5 G''.
    Section 2D1.1(c)(9) is amended by striking ``at least 6 G but less 
than 8 G'' before ``of Methamphetamine (actual)'' and inserting ``at 
least 3 G but less than 4 G''; and by striking ``at least 6 G but less 
than 8 G'' before ``of `Ice' '' and inserting ``at least 3 G but less 
than 4 G''.
    Section 2D1.1(c)(10) is amended by striking ``at least 4 G but less 
than 6 G'' before ``of Methamphetamine (actual)'' and inserting ``at 
least 2 G but less than 3 G'' and by striking ``at least 4 G but less 
than 6 G'' before ``of `Ice' '' and inserting ``at least 2 G but less 
than 3 G''.
    Section 2D1.1(c)(11) is amended by striking ``at least 2 G but less 
than 4 G'' before ``of Methamphetamine (actual)'' and inserting ``at 
least 1 G but less than 2 G''; and by striking ``at least 2 G but less 
than 4 G'' before ``of `Ice' '' and inserting ``at least 1 G but less 
than 2 G''.
    Section 2D1.1(c)(12) is amended by striking ``at least 1 G but less 
than 2 G'' before ``of Methamphetamine (actual)'' and inserting ``at 
least 500 MG but less than 1 G''; and by striking ``at least 1 G but 
less than 2 G'' before ``of ``Ice'' and inserting ``at least 500 MG but 
less than 1 G''.
    Section 2D1.1(c)(13) is amended by striking ``at least 500 MG but 
less than 1 G'' before ``of Methamphetamine (actual)'' and inserting 
``at least 250 MG but less than 500 MG''; and by striking ``at least 
500 MG but less than 1 G'' before ``of `Ice'' ' and inserting ``at 
least 250 MG but less than 500 MG''.
    Section 2D1.1(c)(14) is amended by striking ``less than 500 MG'' 
before ``of Methamphetamine (actual)'' and inserting ``less than 250 
MG''; and by striking ``less than 500 MG'' before ``of `Ice'' ' and 
inserting ``less than 250 MG''.
    The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is 
amended in Note 10 in the subdivision of the ``Drug Equivalency 
Tables'' captioned ``Cocaine and Other Schedule I and II Stimulants 
(and their immediate precursors)'' in the line referenced to 
``Methamphetamine (Actual)'' by striking ``10 kg'' and inserting ``20 
kg''.
    The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is 
amended in Note 10 in the subdivision of the ``Drug Equivalency 
Tables'' captioned ``Cocaine and Other Schedule I and II Stimulants 
(and their immediate precursors)'' in the line referenced to ``Ice'' by 
striking ``10 kg'' and inserting ``20 kg''.

Option 2

    Section 2D1.1(c)(1) is amended by striking the line referenced to 
``Methamphetamine'' in its entirety and inserting:
    ``1.5 KG or more of Methamphetamine, or 1.5 KG or more of `Ice';''.
    Section 2D1.1(c)(2) is amended by striking the line referenced to 
``Methamphetamine'' in its entirety and inserting:
    ``At least 500 G but less than 1.5 KG of Methamphetamine, or at 
least 500 G but less than 1.5 KG of `Ice';''.
    Section 2D1.1(c)(3) is amended by striking the line referenced to 
``Methamphetamine'' in its entirety and inserting:
    ``At least 150 G but less than 500 G of Methamphetamine, or at 
least 150 G but less than 500 G of `Ice';''.
    Section 2D1.1(c)(4) is amended by striking the line referenced to 
``Methamphetamine'' in its entirety and inserting:
    ``At least 50 G but less than 150 G of Methamphetamine, or at least 
50 G but less than 150 G of `Ice';''.
    Section 2D1.1(c)(5) is amended by striking the line referenced to 
``Methamphetamine'' in its entirety and inserting:
    ``At least 35 G but less than 50 G of Methamphetamine, or at least 
35 G but less than 50 G of `Ice' ''
    Section 2D1.1(c)(6) is amended by striking the line referenced to 
``Methamphetamine'' in its entirety and inserting:

[[Page 2665]]

    ``At least 20 G but less than 35 G of Methamphetamine, or at least 
20 G but less than 35 G of `Ice' ''.
    Section 2D1.1(c)(7) is amended by striking the line referenced to 
``Methamphetamine'' in its entirety and inserting:
    ``At least 5 G but less than 20 G of Methamphetamine, or at least 5 
G but less than 20 G of `Ice';''.
    Section 2D1.1(c)(8) is amended by striking the line referenced to 
``Methamphetamine'' in its entirety and inserting:
    ``At least 4 G but less than 5 G of Methamphetamine, or at least 4 
G but less than 5 G of `Ice`Ice';''.
    Section 2D1.1(c)(9) is amended by striking the line referenced to 
``Methamphetamine'' in its entirety and inserting:
    ``At least 3 G but less than 4 G of Methamphetamine, or at least 3 
G but less than 4 G of `Ice''';.
    Section 2D1.1(c)(10) is amended by striking the line referenced to 
``Methamphetamine'' in its entirety and inserting:
    ``At least 2 G but less than 3 G of Methamphetamine, or at least 2 
G but less than 3 G of `Ice`Ice';''.
    Section 2D1.1(c)(11) is amended by striking the line referenced to 
``Methamphetamine'' in its entirety and inserting:
    ``At least 1 G but less than 2 G of Methamphetamine, or at least 1 
G but less than 2 G of `Ice`Ice';''.
    Section 2D1.1(c)(12) is amended by striking the line referenced to 
``Methamphetamine'' in its entirety and inserting:
    ``At least 500 MG but less than 1 G of Methamphetamine, or at least 
500 MG but less than 1 G of `Ice`Ice';''.
    Section 2D1.1(c)(13) is amended by striking the line referenced to 
``Methamphetamine'' in its entirety and inserting:
    ``At least 250 MG but less than 500 MG of Methamphetamine, or at 
least 250 MG but less than 500 MG of ``Ice`Ice';''.
    Section 2D1.1(c)(14) is amended by striking the line referenced to 
``Methamphetamine'' in its entirety and inserting:
    ``Less than 250 MG of Methamphetamine, or less than 250 MG of 
``Ice'''.
    Subsection 2D1.1(c) is amended in the part captioned ``Notes to the 
Drug Quantity Table'' in Note (B) in the first sentence by striking 
``and ``Methamphetamine (actual)' ''; by striking ``refer'' and 
inserting ``refers''; and by striking '', itself,''; and in the third 
sentence by striking ``or methamphetamine''; and by striking ``or 
methamphetamine (actual)''.
    Subsection 2D1.1(c) is amended in the part captioned ``Notes to the 
Drug Quantity Table'' by redesignating Notes (C) through (J), as Notes 
(D) through (K), respectively; and by inserting after Note (B) the 
following new Note (C):
    ``(C) The term `Methamphetamine' refers to the weight of the 
controlled substance contained in the mixture or substance. For 
example, a mixture weighing 10 grams containing Methamphetamine at 50% 
purity contains 5 grams of Methamphetamine. In any case in which the 
purity of the Methamphetamine contained in a mixture or substance is 
not known, it shall be presumed that the purity of the mixture or 
substance is [10%][20%][30%][40%][50%]. To calculate the quantity used 
to determine the offense level, multiply the entire weight of the 
mixture or substance by [10%][20%][30%][40%][50%]. The resulting 
quantity shall be used to determine the offense level.''.
    The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is 
amended in Note 10 in the subdivision of the ``Drug Equivalency 
Tables'' captioned ``Cocaine and Other Schedule I and II Stimulants 
(and their immediate precursors)'' by striking the line referenced to 
``Methamphetamine'' in its entirety.
    The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is 
amended in Note 10 in the subdivision of the ``Drug Equivalency 
Tables'' captioned ``Cocaine and Other Schedule I and II Stimulants 
(and their immediate precursors)'' in the line referenced to 
``Methamphetamine (Actual)'' by striking ``(Actual)''; and by striking 
``10 kg'' and inserting ``20 kg''.
    The Commentary to Sec. 2D1.1 captioned ``Application Notes'' is 
amended in Note 10 in the subdivision of the ``Drug Equivalency 
Tables'' captioned ``Cocaine and Other Schedule I and II Stimulants 
(and their immediate precursors)'' in the line referenced to ``Ice'' by 
striking ``10 kg'' and inserting ``20 kg''.
    Issue for Comment: The Commission invites comment on whether it 
should change the Drug Equivalency Table in Sec. 2D1.1, relating to 
Phenylacetone/P2P, when possessed for the purpose of manufacturing 
Methamphetamine, and whether it should change the Chemical Quantity 
Table in Sec. 2D1.11, relating to any chemical referenced in that table 
that is used to manufacture Methamphetamine, in order to reflect the 
increased harm associated with Methamphetamine offenses. If so, what 
should those equivalencies be?

Proposed Amendment: Identity Theft

    (2) Synopsis of Proposed Amendment: The Identity Theft and 
Assumption Deterrence Act of 1998 (the ``Act''), Pub. L. 105-318, 
amended 18 U.S.C. Sec. 1028 to criminalize the unauthorized use or 
transfer of a means of identification with the intent to commit or aid 
or abet any federal violation or state felony. In addition, the Act 
directed the Commission to ``provide an appropriate penalty for each 
offense under section 1028 of title 18, United States Code.'' In 
carrying out this directive the Act instructed the Commission to 
consider the following factors:
    (1) the extent to which the number of victims (as defined in 
section 3663A(a) of title 18, United States Code) involved in the 
offense, including harm to reputation, inconvenience, and other 
difficulties resulting from the offense, is an adequate measure for 
establishing penalties under the Federal sentencing guidelines;
    (2) the number of means of identification, identification 
documents, or false identification documents involved in the offense is 
an adequate measure for establishing penalties under the Federal 
sentencing guidelines;
    (3) the extent to which the value of loss to any individual caused 
by the offense is an adequate measure for establishing penalties under 
the Federal sentencing guidelines;
    (4) the range of conduct covered by the offense;
    (5) the extent to which sentencing enhancements within the Federal 
sentencing guidelines and the court's authority to sentence above the 
applicable guideline range are adequate to ensure punishment at or near 
the maximum penalty for the most egregious conduct covered by the 
offense;
    (6) the extent to which Federal sentencing guidelines sentences for 
the offenses have been constrained by statutory maximum penalties;
    (7) the extent to which Federal sentencing guidelines for the 
offenses adequately achieve the purposes of sentencing set forth in 
section 3553(a)(2) of title 18, United States Code; and
    (8) any other factor that the United States Sentencing Commission 
considers to be appropriate.
    There are two options to implement this directive. Option 1 
provides a two-prong enhancement, with a two-level increase and a 
minimum offense level of [10][11][12][13], if the offense involved (A) 
the use of any identifying information of an individual victim to 
obtain or make any unauthorized identification means of that individual

[[Page 2666]]

victim; or (B) the possession of [5] or more unauthorized 
identification means. The subject of the term ``unauthorized 
identification means'' is the item that is obtained or made by using an 
individual victim's identifying information. For example, in a case 
involving a credit card that was obtained by using an individual 
victim's name, date of birth, and social security number, the credit 
card would be the unauthorized identification means. Option 2 proposes 
two separate enhancements to implement the directive. The first 
enhancement provides a two-level increase and minimum offense level of 
[10][12] for harm to an individual's reputation or credit standing, 
inconvenience related to the correction of records or restoration of an 
individual's reputation or credit standing, or similar difficulties. 
The corresponding application note provides that this enhancement only 
applies if those harms are more than minimal. The second proposed 
enhancement provides a two-level increase if the offense involved the 
production or transfer of 6 or more identification documents, false 
identification documents, or means of identification. This provision 
specifies that the two-level increase is not to be applied if the 
defendant's conduct also resulted in an increase under Sec. 2F1.1(b)(1) 
(the fraud loss table).
    Several issues for comment follow the presentation of the options.

Proposed Amendment--Option 1

    Section 2F1.1(b) is amended by redesignating subdivisions (6) and 
(7) as subdivisions (7) and (8), respectively; and by inserting after 
subdivision (5) the following new subdivision (6):
    (6) If the offense involved (A) the use of any identifying 
information of an individual victim to obtain or make any unauthorized 
identification means of that individual victim; or (B) the possession 
of [5] or more unauthorized identification means, increase by [2] 
levels. If the resulting offense level is less than level 
[10][11][12][13], increase to level [10][11][12][13].''.
    The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is 
amended by striking Note 8(c) in its entirety and inserting:
    (c) Consequential Damages in Procurement Fraud Cases, Product 
Substitution Cases, and Cases Involving Unauthorized Identification 
Means
    In contrast to other types of cases, loss in a case involving 
procurement fraud, product substitution, or unauthorized identification 
means includes not only direct damages, but also consequential damages 
that were reasonably foreseeable. For example, in a case involving a 
defense product substitution offense, the loss includes the 
government's reasonably foreseeable costs of making substitute 
transactions and handling or disposing of the product delivered or 
retrofitting the product so that it can be used for its intended 
purpose, plus the government's reasonably foreseeable cost of 
rectifying the actual or potential disruption to government operations 
caused by the product substitution. In the case of fraud affecting a 
defense contract award, loss includes the reasonably foreseeable 
administrative cost to the government and other participants of 
repeating or correcting the procurement action affected, plus any 
increased cost to procure the product or service involved that was 
reasonably foreseeable. Similarly, in a case involving unauthorized 
identification means, loss includes any reasonably foreseeable, 
consequential damages incurred by the individual victim. For example, 
such damages include attorneys fees, travel expenses, costs of 
duplicating records, long distance phone calls, or any other costs 
incurred to repair a damaged credit record.
    Inclusion of reasonably foreseeable consequential damages directly 
in the calculation of loss in procurement fraud and product 
substitution cases reflects that such damages frequently are 
substantial in such cases. Inclusion of such damages directly in the 
calculation of loss in an offense involving unauthorized identification 
means reflects the seriousness of the offense, particularly with 
respect to the individual victim, regardless of whether the loss to the 
individual victim is substantial.''.
    The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is 
amended by striking Note 12 in its entirety and inserting:
    ``12. Offenses involving access devices, in violation of 18 U.S.C. 
Sec. 1029, are also covered by this guideline. In such a case, an 
upward departure may be warranted when the actual loss does not 
adequately reflect the seriousness of the conduct.''.
    The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is 
amended by redesignating Notes 16 through 20 as Notes 18 through 22, 
respectively; and by inserting after Note 15 the following new Notes 16 
and 17:
    ``16. For purposes of subsection (b)(6) and Application Note 8(c)--
    `Identifying information' means any `means of identification' as 
that term is defined in 18 U.S.C. Sec. 1028(d)(3).
    `Individual victim' means an individual, other than the defendant 
or any individual involved in the jointly undertaken criminal activity, 
whose identifying information was used to obtain or make an 
unauthorized identification means. `Individual victim' does not include 
a fictitious individual.
    `Unauthorized identification means' means any identifying 
information that has been obtained or made from any other identifying 
information without the authorization of the individual victim whose 
identifying information appears on, or as part of, that unauthorized 
identification means. For example, in a case involving a credit card 
that had been obtained by using the name, date of birth, and social 
security number of an individual victim, the `unauthorized 
identification means' would be the credit card and the `other 
identifying information' would be the individual victim's name, date of 
birth, and social security number.
    17. Offenses involving identification documents and means of 
identification, in violation of 18 U.S.C. Sec. 1028, are covered by 
this guideline. If (A) the offense involved unauthorized identification 
means, or the unlawful production, transfer, possession, or use of an 
identification document; and (B) the primary purpose of the offense was 
to violate, or assist another to violate, the law pertaining to 
naturalization, citizenship, or legal resident status, apply Sec. 2L2.1 
or Sec. 2L2.2, as appropriate, rather than Sec. 2F1.1.
    Subsection (b)(6)(A) provides an enhancement in any case in which 
any identifying information of an individual victim is used, without 
that individual's authorization, to obtain or make an unauthorized 
identification means. This subsection would apply, for example, when a 
defendant obtains another individual's name and social security number 
from a source (e.g., from a stolen wallet) and obtains and uses a 
credit card in that individual's name, without the individual's 
authorization. This subsection would not apply, however, if the 
defendant uses a credit card from a stolen wallet only to make a 
purchase. In such a case, the defendant has not used the stolen credit 
card to obtain or make an unauthorized identification means.
    Subsection (b)(6)(B) provides an enhancement in any case in which 
the offense involved the possession of [five] or more unauthorized 
identification means. The enhancement applies regardless of whether the 
possession is with respect to one individual victim or more than one 
individual victim. For example, the enhancement applies if the offense 
involved (A) the possession of

[[Page 2667]]

[three] unauthorized identification means of one individual victim and 
[two] unauthorized identification means of another individual victim; 
or (B) the possession of one unauthorized identification means of 
[five] individual victims.
    In a case involving unauthorized identification means, an upward 
departure may be warranted if the offense level does not adequately 
address the seriousness of the offense. Examples may include the 
following:
    (a) an individual victim is erroneously arrested because the 
defendant used an unauthorized identification means of the victim in 
connection with some criminal conduct, or the individual victim is 
denied a job because an arrest record has been made in the victim's 
name;
    (b) the extent of the offense conduct is such that the defendant 
established or made numerous unauthorized identification means with 
respect to one individual victim, essentially assuming and living under 
that victim's identity.''.
    The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is 
amended in Note 20, as redesignated by this amendment (formerly Note 
18), by striking ``(7)'' and inserting ``(8)''.
    The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is 
amended in Note 22, as redesignated by this amendment (formerly Note 
20), by striking ``(b)(7)(A) or (B)'' and inserting ``(b)(6) or 
(b)(8)(A) or (B)''.
    The Commentary to Sec. 2F1.1 captioned ``Background'' is amended by 
inserting after the fifth paragraph the following new paragraphs:
    ``A minimum offense level of [10][11][12][13] is provided in 
subsection (b)(6) for offenses involving unauthorized identification 
means, in part, because of the seriousness of the offense. The minimum 
offense level accounts for the fact that the unauthorized 
identification means often are within the defendant's exclusive 
control, making it difficult for the individual victim to detect that 
his or her identity has been `stolen' and used to obtain or make 
unauthorized identification means. Generally, the individual victim 
does not become aware of the offense until certain harms have already 
occurred (e.g., a damaged credit rating or inability to obtain a loan). 
The minimum offense level also is provided because some of the harm to 
the individual victim whose identifying information is part of the 
unauthorized identification means may be difficult or impossible to 
quantify (e.g., harm to the individual victim's reputation or credit 
rating, inconvenience, and other difficulties resulting from the 
offense).
    Subsection (b)(6) implements the instruction to the Commission in 
section 4 of Public Law 105-318.''.
    The Commentary to Sec. 2F1.1 captioned ``Background'' is amended in 
the ninth paragraph (formerly the seventh paragraph) by striking 
``(6)'' and inserting ``(7)''.
    The Commentary to Sec. 2F1.1 captioned ``Background'' is amended in 
the tenth paragraph (formerly the eighth paragraph) by striking ``(7)'' 
and inserting ``(8)''.
    The Commentary to Sec. 2F1.1 captioned ``Background'' is amended in 
the eleventh paragraph (formerly the ninth paragraph) by striking 
``(7)'' and inserting ``(8)''.

Option 2

    Section 2F1.1(b) is amended by redesignating subdivision (7) as 
subdivision (9); and by inserting after subdivision (6) the following 
new subdivisions (7) and (8):
    (7) If the offense involved (A) harm to an individual's reputation 
or credit standing, inconvenience related to the correction of records 
or restoration of an individual's reputation or credit standing, or 
similar difficulties; and (B) such harm, inconvenience, or difficulties 
were more than minimal, increase by 2 levels. If the resulting offense 
level is less than level [10] [12], increase to level [10] [12].
    (8) If the offense involved the production or transfer of 6 or more 
identification documents, false identification documents, or means of 
identification, increase by 2 levels. Do not apply this increase if the 
defendant's conduct also resulted in an increase under subdivision 
(1).''.
    The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is 
amended in Note 12 in the first sentence by inserting ``, means of 
identification,'' after ``identification documents''; in the second 
sentence by inserting ``or means of identification'' after 
``identification documents''; and in the third sentence by striking 
``false identification documents or''.
    The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is 
amended by redesignating Notes 16 through 20 as Notes 17 through 21, 
respectively; and by inserting after Note 15 the following new Note 16:
    ``16. Subsection (b)(7) provides an upward adjustment of 2 levels 
and a floor of level [10] [12] for harm to an individual's reputation 
or credit standing, inconvenience related to the correction of records 
or restoration of an individual's reputation or credit standing, or 
similar difficulties. However, such harm, inconvenience, or similar 
difficulties must be more than minimal in order to qualify. Thus, for 
example, neither an individual's speculation about potential harm to 
his or her reputation or credit standing nor a single, negative credit 
entry that was corrected in a short time would qualify for the 2-level 
adjustment under this subsection, but a showing of multiple, negative 
credit entries or a poor credit rating would. If the offense involved a 
level of harm, inconvenience, or other difficulty not adequately 
addressed by subsection (b)(7) or by Sec. 2F1.1 in general, an upward 
departure may be warranted. For example, if the wrong person were 
arrested because of the fraudulent use of such person's means of 
identification by another, or if an individual's identity were 
completely taken over by another, an upward departure would be 
warranted to recognize the extraordinary harm to the victim's 
reputation or the resulting inconvenience in the restoration of his or 
her reputation or the necessary correction of records. Moreover, harm 
of the type described in subsection (b)(7) to a significant number of 
individuals would also warrant an upward departure.''.
    The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is 
amended in Note 19, as redesignated by this amendment (formerly Note 
18), by striking ``(7)'' and inserting ``(9)''.
    The Commentary to Sec. 2F1.1 captioned ``Application Notes'' is 
amended in Note 21, as redesignated by this amendment (formerly Note 
20), by striking ``(7)'' and inserting ``(9)''.
    The Commentary to Sec. 2F1.1 captioned ``Background'' is amended in 
the eighth and ninth paragraphs by striking ``(7)'' and inserting 
``(9)'' each place it appears.

Issues for Comment

    The Commission invites comment on the following issues pertaining 
to identity theft:
    1. The proposed amendment in Option 1 provides a two-level 
enhancement in the fraud guideline for the possession of [5] or more 
unauthorized identification means. The enhancement, as proposed, 
applies regardless of whether the offense involves the possession of 
unauthorized identification means of one individual victim or more than 
one individual victim as long as at least [5] unauthorized 
identification means were possessed. Should the Commission consider 
providing an additional part to the proposed enhancement that would 
increase sentences based on the number of individual victims involved 
in the offense? If so, on what number of

[[Page 2668]]

individual victims should the enhancement be based?
    The Commission also invites comment on whether it should provide an 
additional increase, cumulative to the 2-level increase already 
proposed in Option 1, for cases involving specified numbers of 
individual victims or unauthorized identification means. For example, 
such an enhancement could provide an additional [4-level] enhancement 
if the offense involved more than [10-25] unauthorized identification 
means and/or more than [5-25] individual victims. Alternatively, should 
the Commission provide an upward departure for cases involving a large 
number of unauthorized identification means and/or a large number of 
individual victims?
    2. The proposed amendment in Option 1 limits the enhancement for 
identity theft to the fraud guideline. Given the breadth of offense 
conduct covered by 18 U.S.C. Sec. 1028, should the Commission also 
provide a similar sentencing increase (including, if appropriate, an 
enhancement that ties offense level increases to specified numbers of 
identification means) for identity theft conduct in [any or] all other 
economic crime guidelines (e.g., Sec. 2B1.1 (Theft), Sec. 2S1.1 
(Laundering of Monetary Instruments), Sec. 2T1.4 (Tax Fraud))?
    3. Given the breadth of offense conduct covered by 18 U.S.C. 
Sec. 1028, as an alternative to amending Chapter Two, should the 
Commission amend Chapter Three of the Guidelines Manual, relating to 
general adjustments, to provide a new adjustment that would apply in 
every case that involves the unauthorized use of an identification 
means? If so, how should that adjustment be structured (e.g., should 
there be a table or tiered adjustment based on the number of 
unauthorized identification means involved in the offense)? Should the 
adjustment also include the unauthorized use of any identification 
document or the use of any false identification document?
    4. As an alternative to a Chapter Three adjustment, should the 
Commission amend Chapter Five, Part K, of the Guidelines Manual, 
relating to departures, to encourage a departure above the authorized 
guideline sentence in any case involving the unauthorized use of an 
identification means if the guideline range does not adequately reflect 
the seriousness of the offense conduct?
    5. The Treasury Department has recommended that the Commission 
amend its current minimum loss amount rule for stolen credit card 
offenses in Sec. 2B1.1 (a minimum loss amount of $100 per credit card) 
to include all access devices, and that the minimum loss amount be 
increased to $1000 per access device. Given that the Identity Theft and 
Assumption Deterrence Act of 1998 included access devices in the 
definition of ``means of identification,'' the Commission invites 
comment on whether it should consider amending that rule to include all 
access devices (such as debit cards, bank account numbers, electronic 
serial numbers, and mobile identification numbers) and to place that 
amended rule in Sec. 2F1.1. Such a rule would have the effect of 
subjecting an offense that involves an unauthorized identification 
means that is a credit card number to the same minimum loss amount as 
an offense that involves the stolen credit card itself. If the 
Commission should consider such an amendment, should the Commission 
additionally amend the rule to increase the minimum loss amount per 
access device, for example [$500][$750][$1000] per access device? (Such 
an amendment may need to be coordinated with efforts to revise the 
theft guideline in connection with offenses involving access devices 
and cellular phone cloning.)
    6. Commission data indicate that a high portion of offenders 
involved in identity theft conduct have previously been convicted of 
similar offense conduct at either the state or federal level. Although 
Chapter Four addresses criminal history, the Commission has provided 
enhancements in certain Chapter Two guidelines for prior similar 
conduct (e.g., Secs. 2L2.1(b)(4) and 2L2.2(b)(2), which provide two- 
and four-level increases if ``the defendant committed any part of the 
instant offense after sustaining one or more convictions for felony 
immigration and naturalization offenses''). Should the Commission 
provide an enhancement in the relevant Chapter Two guideline 
(Sec. 2F1.1, if the Commission adopts a limited approach to identity 
theft) or guidelines (the economic crime guidelines, if the Commission 
adopts a more expansive approach to identity theft) if the defendant 
had previously been convicted of conduct similar to identity theft? If 
so, what is the appropriate number of levels for the enhancement? 
Should such an enhancement require a minimum offense level?

[FR Doc. 00-1075 Filed 1-14-00; 8:45 am]
BILLING CODE 2210-40-P