[Federal Register Volume 66, Number 228 (Tuesday, November 27, 2001)]
[Notices]
[Pages 59330-59340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29467]



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Part III





United States Sentencing Commission





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Sentencing Guidelines for United States Courts; Notice

  Federal Register / Vol. 66 , No. 228 / Tuesday, November 27, 2001 / 
Notices  

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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, policy 
statements, and commentary. Request for public comment.

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SUMMARY: Pursuant to section 994(a), (o), and (p) of title 28, United 
States Code, the Commission is considering promulgating certain 
amendments to the sentencing guidelines, policy statements, and 
commentary. This notice sets forth the proposed amendments and, for 
each proposed amendment, a synopsis of the issues addressed by that 
amendment. Additionally, issues for comment follow proposed amendments 
1, 2, and 4.
    The specific amendments proposed in this notice are summarized as 
follows: (1) Proposed amendment to provide a new guideline, Sec. 2B1.5, 
to cover a variety of offenses involving the theft of, damage to, 
destruction of, or illicit trafficking in cultural heritage resources, 
including national memorials, archaeological resources, national parks, 
and national historic landmarks; (2) proposed amendment to change 
statutory references in Appendix A (Statutory Index) to the Foreign 
Corrupt Practices Act, 15 U.S.C. Secs. 78dd-1 through 78dd-3, from 
Sec. 2B4.1 (Bribery in Procurement of Bank Loan and Other Commercial 
Bribery) to Sec. 2C1.1 (Offering, Giving, Soliciting, or Receiving a 
Bribe; Extortion Under Color of Official Right); (3) proposed amendment 
to provide special rules in Sec. 4B1.1 (Career Offender) for 
determining and imposing a guideline sentence in the case of a 
defendant who is convicted of an offense under 18 U.S.C. Sec. 924(c) or 
Sec. 929(a) and, as a result of that conviction, is determined to be a 
career offender under Secs. 4B1.1 and 4B1.2 (Definitions of Terms Used 
in Section 4B1.1); (4) proposed amendment to expand the persons who may 
qualify as an official victim for purposes of the enhancement in 
Sec. 3A1.2 (Official Victim); (5) proposed amendment to (A) eliminate 
the additional one-level reduction in Sec. 3E1.1(b)(1) that applies if 
the defendant timely provides complete information to the government 
concerning the defendant's own involvement in the offense; and (B) 
resolve a circuit conflict regarding whether the court may deny a 
reduction for acceptance of responsibility under Sec. 3E1.1 if the 
defendant commits a new offense unrelated to the offense of conviction; 
and (6) proposed amendment to make technical and conforming amendments 
to various guideline provisions.

DATES: Written public comment should be received by the Commission not 
later than February 4, 2002.

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 Affairs 
Officer, Telephone: (202) 502-4590.

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) and 
submits guideline amendments to the Congress not later than the first 
day of May each year 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 a heightened interest on the Commission's 
part for 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. Similarly, 
bracketed text within a specific offense characteristic or application 
note means that the Commission specifically invites comment on whether 
the proposed provision is appropriate. Second, the Commission has 
highlighted certain issues for comment and invites suggestions for how 
the Commission should respond to those issues.

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


Diana E. Murphy,
Chair.

1. Synopsis of Proposed Amendment

    This amendment proposes to add to Chapter Two, Part B, a new 
guideline, Sec. 2B1.5, to cover a variety of offenses involving the 
theft of, damage to, destruction of, or illicit trafficking in cultural 
heritage resources, including national memorials, archaeological 
resources, national parks, and national historic landmarks. The 
proposal was developed in response to concerns raised by the 
Departments of Justice and the Interior, among others, that the 
guidelines inadequately address such offenses.
    Cultural heritage resource crimes are fundamentally different than 
general property crimes because, unlike other property crimes where the 
primary harm is pecuniary, the effect of cultural heritage resource 
crimes is in great part non-pecuniary in nature. Punishment of these 
crimes should reflect these intrinsic differences.
    The effect of cultural heritage resource crimes transcends monetary 
considerations. Individuals, communities, and nations identify 
themselves through intellectual, emotional, and spiritual connections 
to places and objects. For much of this cultural heritage in the United 
States, the federal government has a perpetual duty to act either as a 
trustee for the public, generally, or as a fiduciary on behalf of 
American Indians, Alaska Natives and Native Hawaiian Organizations. The 
current guidelines, however, do not specifically address the importance 
of cultural identity and fiduciary obligation when crimes are committed 
against cultural heritage resources. Therefore, a separate guideline 
amendment is proposed that takes into account the transcendent and 
irreplaceable, e.g., the non-pecuniary value of cultural heritage 
resources, and punishes in a proportionate way the particular offense 
characteristics associated with the range of cultural heritage resource 
crimes.
    First, the amendment proposes a base offense level of level 8, 
which is two levels higher than the base offense level for general 
property destruction. The higher base offense level represents the 
intangible and non-pecuniary harm caused by the theft of, damage to, or 
destruction of, essentially irreplaceable cultural heritage resources.
    Second, the amendment proposes an enhancement, tied to the loss 
table at Sec. 2B1.1, that assesses the monetary value of the damage 
caused. Use of the standard economic crime concept of ``loss'' is not 
used, however, because it implies a fungible and compensatory system of 
value which is inappropriate for measuring the harm caused by cultural 
heritage resources offenses. Instead, the calculation is based on 
either commercial value or archaeological value, as appropriate to the 
particular resource, which may be

[[Page 59331]]

necessary to preserve or otherwise care for the resource, together with 
the cost of restoration and repair of the resource. These values 
already exist in federal law and are codified in federal regulations.
    Third, the amendment proposes a two-level enhancement if the 
offense involved commercial advantage or private financial gain, in 
order to distinguish between offenders who are motivated by financial 
gain or commercial purposes from offenders who merely are motivated by 
their interest in the past and personal desire to possess cultural 
heritage resources, and is consistent with similar provisions elsewhere 
in the guidelines. See, e.g., Secs. 2Q2.1(b)(1) and 2B5.3(b)(3). A two-
level enhancement is also proposed if the offense involved a pattern of 
similar violations, which is defined as ``two or more civil or 
administrative adjudications for misconduct similar to the instant 
offense, in violation of any Federal, state, or local provision, rule, 
regulation, ordinance, or permit.''
    Fourth, the amendment proposes two-level enhancements that increase 
the offense level if the offense involves specially protected resources 
from specially protected places. A two-level enhancement will attach if 
the offense involves a resource from one of seven locations 
particularly designated by Congress as dedicated solely to the 
preservation of the resource and further education of the public. An 
additional two-level increase attaches to four specific types of 
cultural heritage resources that have merited special treatment in 
federal law.
    Fifth, the amendment proposes a two-level enhancement and a minimum 
offense level of level 14 if a firearm was possessed or a dangerous 
weapon (including a firearm) was brandished. This enhancement reflects 
the harm caused by the increased danger of violence and risk to law 
enforcement officers and innocent passers-by in vast expanses of land, 
and is consistent with similar provisions elsewhere in the guidelines. 
See, e.g., Sec. 2B1.1(b)(11)(B).
    Sixth, an upward departure provision is proposed when the offense 
level substantially understates the seriousness of the offense. For 
example, if an upward departure may be warranted in addition to 
cultural heritage resources, the offense involved theft of, damage to, 
or destruction of other items such as administrative property. In such 
a case, the extent of the upward departure should not exceed the number 
of levels from the table in Sec. 2B1.1 corresponding to the dollar 
amount of the non-cultural heritage resources.
    Seventh, the proposed guideline for cultural heritage resources 
contains three issues for comment. The first issue requests comment on 
the extent of the proposed enhancement in subsection (b)(4)(B) 
regarding ``pattern of similar violations'' and the proposed definition 
in Application Note 5. The second issue requests comment on proposed 
Application Note 7 regarding the nature of a structured upward 
departure for cases involving offense conduct that damages or destroys 
both cultural heritage resources and non-cultural heritage resources, 
specifically, is it appropriate to use the applicable numbers of levels 
from the loss table or the loss commentary in Sec. 2B1.1 for the 
determination of the non-cultural heritage resource harm caused. The 
second issue also requests comment on whether an upward departure 
should be provided if the value of the cultural heritage resource, as 
determined under proposed subsection (b)(1) and Application Note 2, 
underestimates its actual value. The third issue requests comment 
regarding whether the proposed guideline should include an enhancement 
for the use of explosives.
    Finally, the Statutory Index (Appendix) is updated to reference a 
variety of offenses to the new guideline.
    Chapter Two, Part B, Subpart 1 is amended by adding at the end the 
following:

``Sec. 2B1.5.  Theft of, Damage to, or Destruction of, Cultural 
Heritage Resources; Unlawful Sale, Purchase, Exchange, 
Transportation, or Receipt of Cultural Heritage Resources

(a) Base Offense Level: [8]
(b) Specific Offense Characteristics
    (1) If the value of the cultural heritage resources (A) exceeded 
$2,000 but did not exceed $5,000, increase by 1 level; or (B) exceeded 
$5,000, increase by the number of levels from the table in Sec. 2B1.1 
(Theft, Property Destruction, and Fraud) corresponding to that amount.
    (2) If the offense involved a cultural heritage resource from, or 
located, prior to the offense, on or in (A) the national park system; 
(B) a National Historic Landmark; (C) a national monument or national 
memorial; (D) a national marine sanctuary; (E) a national cemetery; (F) 
a museum; or (G) the World Heritage List, increase by 2 levels.
    (3) If the offense involved a cultural heritage resource 
constituting (A) human remains; (B) a funerary object; (C) designated 
archeological or ethnological material; or (D) a pre-Columbian 
monumental or architectural sculpture or mural, increase by 2 levels.
    (4) If the offense (A) was committed for pecuniary gain or 
otherwise involved a commercial purpose; or (B) involved a pattern of 
similar violations, increase by 2 levels.
    (5) If (A) a dangerous weapon (including a firearm) was brandished; 
or (B) a firearm was possessed in connection with the offense, increase 
by 2 levels. If the resulting offense level is less than level 14, 
increase to level 14.

Commentary

    Statutory Provisions: 16 U.S.C. Sec. 470ee; 18 U.S.C. Secs. 541-
546, 641, 661, 666, 668, 1152-1153, 1163, 1170, 1361, 2314-2315. For 
additional statutory provisions, see Appendix A (Statutory Index).

Application Notes

    1. Meaning of `Cultural Heritage Resource'--For purposes of this 
guideline, `cultural heritage resource' means any of the following:
    (A) A historic property, as defined in 16 U.S.C. Sec. 470w(5).
    (B) A historic resource, as defined in 16 U.S.C. Sec. 470w(5).
    (C) An archaeological resource, as defined in 16 U.S.C. 
Sec. 470bb(1) (see also section 3(a) of 43 CFR part 7, 36 CFR part 296, 
32 CFR part 299, and 18 CFR part 1312).
    (D) A cultural item, as defined in section 2(3) of the Native 
American Graves Protection and Repatriation Act, 25 U.S.C. 
Sec. 3001(3)(see also 43 CFR 10.2(d)).
    (E) A commemorative work. `Commemorative work' (A) has the meaning 
given that term in section 2(c) of Public Law 99-652 (40 U.S.C. 
Sec. 1002(c)); and (B) includes any national monument or national 
memorial.
    (F) An object of cultural heritage, as defined in 18 U.S.C. 
Sec. 668(a).
    2. Value of the Cultural Heritage Resources.--This note applies to 
the determination of the value of the cultural heritage resources for 
purposes of subsection (b)(1).
    (A) In General.--Except as provided in subdivision (B), the value 
of a cultural heritage resource is its commercial value, and the cost 
of restoration and repair.
    (B) Archaeological Resources.--The value of an archaeological 
resource is (i) the greater of its commercial value or its 
archaeological value; and (ii) the cost of restoration and repair.
    (C) Definitions.--For purposes of this application note:
    (i) `Archaeological value' of an archaeological resource means the 
cost of the retrieval of the scientific information which would have 
been obtainable prior to the offense,

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including the cost of preparing a research design, conducting field 
work, conducting laboratory analysis, and preparing reports as would be 
necessary to realize the information potential. (See 43 CFR 
Sec. 7.14(a); 36 CFR Sec. 296.14(a); 32 CFR Sec. 229.14(a); 18 CFR 
Sec. 1312.14(a).)
    (ii) `Commercial value' of a cultural heritage resource, including 
an archeological resource, means the fair market value of the cultural 
heritage resource. In the case of a cultural heritage resource that has 
been damaged as a result of the offense, the fair market value shall be 
determined using the condition of the cultural heritage resource prior 
to commission of the offense, if the prior condition can be determined. 
(See 43 CFR Sec. 7.14(b); 36 CFR Sec. 296.14(b); 32 CFR Sec. 229.14(b); 
18 CFR Sec. 1312.14(b).)
    (iii) `Cost of restoration and repair' includes all actual and 
projected costs of curation, disposition, and appropriate reburial of, 
and consultation with respect to, the cultural heritage resource; and 
any other actual and projected costs to complete restoration and repair 
of the cultural heritage resource, including (I) its reconstruction and 
stabilization; (II) reconstruction and stabilization of ground contour 
and surface; (III) research necessary to conduct reconstruction and 
stabilization; (IV) the construction of physical barriers and other 
protective devices; (V) examination and analysis of the cultural 
heritage resource as part of efforts to salvage remaining information 
about the resource; and (VI) preparation of reports. (See 43 CFR 
Sec. 7.14(c); 36 CFR Sec. 296.14(c); 32 CFR Sec. 229.14(c); 18 CFR 
Sec. 1312.14(c).)
    (D) Determination of Value in Cases Involving A Variety of Cultural 
Heritage Resources.--In a case involving a variety of cultural heritage 
resources, the value of the cultural heritage resources is the sum of 
all calculations made for those resources under this note.
    3. Enhancement in Subsection (b)(2).--For purposes of subsection 
(b)(2):
    (A) `Museum' has the meaning given that term in 18 U.S.C. 
Sec. 668(1).
    (B) ``National cemetery'' has the meaning given that term in 
Application Note 1 of Sec. 2B1.1 (Theft, Property Destruction, and 
Fraud).
    (C) `National Historic Landmark' has the meaning given that term in 
16 U.S.C. Sec. 470(a)(1)(B).
    (D) `National marine sanctuary' means a national marine sanctuary 
designated as such by the Secretary of Commerce pursuant to 16 U.S.C. 
Sec. 1433.
    (E) `National monument or national memorial' means any national 
monument or national memorial established as such by Act of Congress or 
by proclamation pursuant to the Antiquities Act of 1906 (16 U.S.C. 
Sec. 431).
    (F) `National park system' has the meaning given that term in 16 
U.S.C. Sec. 1c(a).
    (G) `World Heritage List' means the World Heritage List maintained 
by the World Heritage Committee of the United Nations Educational, 
Scientific, and Cultural Organization in accordance with the Convention 
Concerning the Protection of the World Cultural and Natural Heritage.
    4. Enhancement in Subsection (b)(3).--For purposes of subsection 
(b)(3):
    (A) `Designated archaeological or ethnological material' has the 
meaning given that term in 19 U.S.C. Sec. 2601(7).
    (B) `Funerary object' means an object that, as a part of the death 
rite or ceremony of a culture, was placed intentionally, at the time of 
death or later, with or near human remains.
    (C) `Human remains' (A) means the physical remains of the body of a 
human; and (B) does not include remains that reasonably may be 
determined to have been freely disposed of or naturally shed by the 
human from whose body the remains were obtained, such as hair made into 
ropes or nets.
    (D) `Pre-Columbian monumental or architectural sculpture or mural' 
has the meaning given that term in 19 U.S.C. Sec. 2095(3).
    5. Enhancements in Subsection (b)(4).--
    (A) Pecuniary Gain.--For purposes of subsection (b)(4)(A), `for 
pecuniary gain' means for receipt of, or in anticipation of receipt of, 
anything of value, whether monetary or in goods or services. Therefore, 
offenses committed for pecuniary gain include both monetary and barter 
transactions, as well as activities designed to increase gross revenue.
    (B) Pattern of Similar Violations.--For purposes of subsection 
(b)(4)(B), `pattern of similar violations' means two or more civil or 
administrative adjudications of misconduct similar to the instant 
offense, in violation of any Federal, state, or local provision, rule, 
regulation, ordinance, or permit.
    6. Dangerous Weapons Enhancement.--For purposes of subsection 
(b)(6), `brandished', `dangerous weapon', and `firearm' have the 
meaning given those terms in the Commentary to Sec. 1B1.1 (Application 
Instructions).
    7. Upward Departure Provision.--There may be cases in which the 
offense level determined under this guideline substantially understates 
the seriousness of the offense. In such cases, an upward departure may 
be warranted. For example, an upward departure may be warranted if, in 
addition to cultural heritage resources, the offense involved theft of, 
damage to, or destruction of, items that are not cultural heritage 
resources (such as an offense involving the theft from a national 
cemetery of lawnmowers and other administrative property in addition to 
historic gravemarkers or other cultural heritage resources). In such a 
case, the extent of the upward departure should not exceed the number 
of levels from the table in Sec. 2B1.1 (Theft, Property Destruction, 
and Fraud) corresponding to the dollar amount involved in the theft of, 
damage to, or destruction of, the items that are not cultural heritage 
items.
    Section 2B1.1(c) is amended by adding at the end the following new 
subdivision:
    ``(4) If the offense involved a cultural heritage resource, apply 
Sec. 2B1.5 (Theft of, Damage to, or Destruction of, Cultural Heritage 
Resources).''.
    The Commentary to Sec. 2B1.1 captioned `Application Notes' is 
amended by redesignating Notes 12 through 15 as Notes 13 through 16; 
and by inserting after Note 11 the following:
    ``12. Cross Reference in Subsection (c)(4).--For purposes of 
subsection (c)(4) `cultural heritage resource' has the meaning given 
that term in Application Note 1 of Sec. 2B1.5 (Theft of, Damage to, or 
Destructive of, Cultural Heritage Resources).''.
    Section 2Q2.1 is amended by adding after subsection (b) the 
following:
``(c) Cross Reference
    (1) If the offense involved a cultural heritage resource, apply 
Sec. 2B1.5 (Theft of, Damage to, or Destruction of, Cultural Heritage 
Resources).''.
    The Commentary to Sec. 2Q2.1 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``6. For purposes of subsection (c)(1), `cultural heritage 
resource' has the meaning given that term in Application Note 1 of 
Sec. 2B1.5 (Theft of, Damage to, or Destruction of, Cultural Heritage 
Resources).''.
    Section 3D1.2 is amended in subsection (d) by inserting ``2B1.5,'' 
after ``2B1.4,''.
    Appendix A (Statutory Index) is amended by striking the line 
referenced to ``16 U.S.C. Sec. 433'' and inserting the following new 
line:
``16 U.S.C. Sec. 470ee    2B1.5'';
in the line referenced to 16 U.S.C. Sec. 668(a) by inserting ``2B1.5,'' 
before ``2Q2.1'';

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in the line referenced to 16 U.S.C. Sec. 707(b) by inserting ``2B1.5,'' 
before ``2Q2.1'';
in the line referenced to 18 U.S.C. Sec. 541 by inserting ``2B1.5,'' 
before ``2T3.1'';
in the line referenced to 18 U.S.C. Sec. 542 by inserting ``2B1.5,'' 
before ``2T3.1'';
in the line referenced to 18 U.S.C. Sec. 543 by inserting ``2B1.5,'' 
before ``2T3.1'';
in the line referenced to 18 U.S.C. Sec. 544 by inserting ``2B1.5,'' 
before ``2T3.1'';
in the line referenced to 18 U.S.C. Sec. 545 by inserting ``2B1.5,'' 
before ``2Q2.1'';
by inserting after the line referenced to ``18 U.S.C. Sec. 545'' the 
following new line:
``18 U.S.C. Sec. 546    2B1.5'';
in the line referenced to 18 U.S.C. Sec. 641 by inserting ``, 2B1.5'' 
after ``2B1.1'';
in the line referenced to 18 U.S.C. Sec. 661 by inserting ``, 2B1.5'' 
after ``2B1.1'';
in the line referenced to 18 U.S.C. Sec. 662 by inserting ``, 2B1.5'' 
after ``2B1.1'';
in the line referenced to 18 U.S.C. Sec. 666(a)(1)(A) by inserting ``, 
2B1.5'' after ``2B1.1'';
in the line referenced to 18 U.S.C. Sec. 668 by striking ``2B1.1'' and 
inserting ``2B1.5'';
by inserting after the line referenced to ``18 U.S.C. Sec. 1121'' the 
following new line:
``18 U.S.C. Sec. 1152    2B1.5'';
in the line referenced to ``18 U.S.C. Sec. 1153'' by inserting 
``2B1.5,'' after ``2B1.1'';
in the line referenced to ``18 U.S.C. Sec. 1163'' by inserting ``, 
2B1.5'' after ``2B1.1'';
by inserting after the line referenced to ``18 U.S.C. Sec. 1168'' the 
following new line:
``18 U.S.C. Sec. 1170    2B1.5'';
in the line referenced to ``18 U.S.C. Sec. 1361'' by inserting ``, 
2B1.5'' after ``2B1.1'';
in the line referenced to 18 U.S.C. Sec. 2232 by inserting `` 2B1.5,'' 
before ``2J1.2'';
in the line referenced to 18 U.S.C. Sec. 2314 by inserting ``, 2B1.5'' 
after ``2B1.1''; and
in the line referenced to 18 U.S.C. Sec. 2315 by inserting ``, 2B1.5'' 
after ``2B1.1''.
    Issues for Comment: (1) The proposed amendment provides an 
enhancement in subsection (b)(4)(B) for a ``pattern of similar 
violations'', which proposed Application Note 5 defines as ``two or 
more civil or administrative adjudications of misconduct similar to the 
instant offense, in violation of any Federal, state, or local 
provision, rule, regulation, ordinance, or permit''. The Commission 
requests comment on the extent of this enhancement. For example, in 
addition to civil or administrative adjudications, should the 
enhancement cover prior convictions for similar misconduct as well? 
Should the enhancement cover similar misconduct for which there has not 
been a civil or administrative adjudicate?
    (2) Proposed Application Note 7 provides, as an example of an 
upward departure that might be warranted, a structured upward departure 
for cases in which the offense also involved theft of, damage to, or 
destruction of, items that are not cultural heritage items. Instead of 
a structured upward departure, should the Commission provide an 
enhancement if the offense involved theft of, damage to, or destruction 
of, items that are not cultural heritage items? If so, should the 
extent of the enhancement correspond to the applicable number of levels 
from the loss table in Sec. 2B1.1 (Theft, Property Destruction, and 
Fraud), and should the loss commentary from Sec. 2B1.1 be used to 
determine the dollar amount of the theft, damage, or destruction? 
Generally, should proposed Application Note 7 provide an upward 
departure if the value of a cultural heritage resource, as determined 
under subsection (b)(1) and Application Note 2, underestimates its 
actual value?
    (3) Should the proposed amendment include an enhancement if the 
offense involved the use of destructive devices?

2. Synopsis of Proposed Amendment

    This amendment changes the Statutory Index reference for violations 
of the Foreign Corrupt Practices Act, 15 U.S.C. Secs. 78dd-1 through 
78dd-3, from Sec. 2B4.1 (Bribery in Procurement of Bank Loan and Other 
Commercial Bribery) to Sec. 2C1.1 (Offering, Giving, Soliciting, or 
Receiving a Bribe; Extortion Under Color of Official Right). This 
change is proposed because many such violations involve public 
corruption of foreign officials and therefore are more like public 
corruption cases than commercial bribery cases. In addition, such a 
change arguably would better implement the Convention on Combating 
Bribery of Foreign Public Officials in International Business 
Transactions, which requires the United States, as a signatory, to 
impose comparable sentences for foreign bribery cases as for domestic 
bribery cases.
    Although this proposal references all offenses under the Foreign 
Corrupt Practice Act to Sec. 2C1.1, an issue for comment is included 
regarding whether some of the offenses under that Act should continue 
to be referenced to Sec. 2B4.1. Although offenses under 15 U.S.C. 
Secs. 78dd-1(a)(1), 78dd-2(a)(1), and 78dd-3(a)(1) involve bribery of 
foreign officials, some of the offenses under that Act involve bribery 
of foreign candidates for political office (see 15 U.S.C. Secs. 78dd-
1(a)(2), 78dd-2(a)(2), and 78dd-3(a)(2)). Other offenses involve 
bribery of persons who are neither public officials nor candidates for 
political office, but the defendant knows that some portion of the 
funds might be used directly or indirectly to influence public 
officials or political candidates (see 15 U.S.C. Secs. 78dd-1(a)(3), 
78dd-2(a)(3), and 78dd-3(a)(3)). Similar offenses involving United 
States Presidential and Vice Presidential candidates currently are 
referenced to Sec. 2B4.1. Section 2B4.1 may continue to be the 
appropriate guideline for offenses which do not directly involve a 
foreign governmental official.
The Commentary to Sec. 2B4.1 captioned ``Statutory Provisions'' is 
amended by striking ``15 U.S.C. Secs. 78dd-1, 78dd-2;''.
    The Commentary to Sec. 2B4.1 captioned ``Application Notes'' is 
amended in Note 1 by inserting ``, foreign governments, or public 
international organizations'' after ``local government''; and by 
striking ``governmental'' and inserting ``any such''.
    The Commentary to Sec. 2B4.1 captioned ``Background'' is amended in 
the sixth paragraph by striking ``to violations of the Foreign Corrupt 
Practices Act, 15 U.S.C. Secs. 78dd-1 and 78dd-2, and''.
    The Commentary to Sec. 2C1.1 captioned ``Statutory Provisions'' is 
amended by inserting ``15 U.S.C. Secs. 78dd-1, 78dd-2, 78dd-3;'' before 
``18 U.S.C. Secs. 201''.
    Appendix A (Statutory Index) is amended in the line referenced to 
``15 U.S.C. Sec. 78dd-1'' by striking ``2B4.1'' and inserting 
``2C1.1'';
in the line referenced to ``15 U.S.C. Sec. 78dd-2'' by striking 
``2B4.1'' and inserting ``2C1.1;
by inserting after the line referenced to ``15 U.S.C. Sec. 78dd-2'' the 
following new line:
``15 U.S.C. Sec. 78dd-3    2C1.1'';
and in the line referenced to ``15 U.S.C. Sec. 78ff'' by striking 
``2B4.1'' and inserting ``2C1.1''.
    Issue for Comment: Although this proposed amendment references all 
offenses under the Foreign Corrupt Practice Act to Sec. 2C1.1 
(Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under 
Color of Official Right), the Commission requests comment regarding 
whether some of the offenses under that Act should continue to be 
referenced to Sec. 2B4.1. Although offenses under 15 U.S.C. Secs. 78dd-
1(a)(1), 78dd-2(a)(1), and 78dd-3(a)(1) involve bribery of foreign 
officials, some of the offenses under that Act involve bribery of 
foreign candidates for political office (see 15 U.S.C. Secs. 78dd-
1(a)(2), 78dd-2(a)(2), and 78dd-3(a)(2)). Other offenses

[[Page 59334]]

involve bribery of persons who are neither public officials nor 
candidates for political office, but the defendant knows that some 
portion of the funds might be used directly or indirectly to influence 
public officials or political candidates (see 15 U.S.C. Secs. 78dd-
1(a)(3), 78dd-2(a)(3), and 78dd-3(a)(3)). Similar offenses involving 
United States Presidential and Vice Presidential candidates under 26 
U.S.C. Secs. 9012(e) and 9042(d) currently are referenced to 
Sec. 2B4.1. Is Sec. 2B4.1 the appropriate guideline for offenses which 
do not directly involve a foreign governmental official? Alternatively, 
should offenses under 26 U.S.C. Secs. 9012(e) and 9042(d) be referenced 
to Sec. 2C1.1 instead of Sec. 2B4.1, inasmuch as those offenses are 
more akin to public bribery than to commercial bribery?

3. Synopsis of Proposed Amendment

    This proposed amendment provides special rules in Sec. 4B1.1 for 
determining and imposing a guideline sentence when the defendant is 
convicted of an offense under 18 U.S.C. Sec. 924(c) or Sec. 929(a) and, 
as a result of that conviction, is determined to be a Career Offender 
under Sec. 4B1.1 and Sec. 4B1.2. The amendment reverses the decision 
made by the Commission in Amendment 600 (effective November 1, 2000), 
that such offenses do not qualify as a crime of violence or controlled 
substance offense for Career Offender purposes, except as a prior 
conviction. Some have expressed doubt about whether that decision 
complies with the statutory command in 28 U.S.C. Sec. 994(h), as 
construed by the United States Supreme Court in United States v. 
Labonte, 520 U.S. 751 (1997).
    Operationally, this amendment achieves the goals of (1) permitting 
such offenses, whether as the instant or prior offense of conviction, 
to qualify for Career Offender purposes, and (2) ensuring that, when 
such an instant offense establishes the defendant as a Career Offender, 
the resulting guideline sentence is determined under Sec. 4B1.1 using a 
count of conviction that has a statutory maximum of life imprisonment. 
The resulting consecutive sentence to be imposed on the 18 U.S.C. 
Sec. 924(c) or 18 U.S.C. Sec. 929(a) count is at least the minimum 
required by statute, and may be longer to the extent necessary to 
achieve the total Career Offender punishment. This amendment does not 
change the current guideline rules forbidding application of guideline 
weapon enhancements when the defendant is convicted of a 18 U.S.C. 
Sec. 924(c) or 18 U.S.C. Sec. 929(a) offense. Furthermore, under this 
amendment, when the defendant is convicted of a 18 U.S.C. Sec. 924(c) 
or 18 U.S.C. Sec. 929(a) offense but that offense, together with any 
prior convictions, does not establish the defendant as a Career 
Offender, the current guideline rules for sentencing on that 18 U.S.C. 
Sec. 924(c) or 18 U.S.C. Sec. 929(a) count continue to apply. 
Accordingly, under Sec. 2K2.4, the guideline sentence on that count is 
the statutory minimum, and that sentence is imposed independently and 
consecutively to the sentence on other counts. No adjustments in 
Chapters Three or Four apply to adjust the guideline sentence for that 
18 U.S.C. Sec. 924(c) or 18 U.S.C. Sec. 929(a) count.
    However, under this amendment, when the 18 U.S.C. Sec. 924(c) or 18 
U.S.C. Sec. 929(a) count establishes the defendant as a Career 
Offender, which the court will determine under Secs. 4B1.1 and 4B1.2, 
new special rules/instructions will apply. To determine the guideline 
sentence on the 18 U.S.C. Sec. 924(c) or 18 U.S.C. Sec. 929(a) count, 
the court moves directly from Sec. 2K2.4 to Sec. 4B1.1 and applies the 
new Special Instruction therein, including the instructions regarding 
multiple counts of conviction.
    Section 2K2.4 is amended by redesignating subsection (b) as 
subsection (d); by striking subsection (a) and inserting the following:
    ``(a) If the defendant, whether or not convicted of another crime, 
was convicted of violating section 844(h) of title 18, United States 
Code, the guideline sentence is the term of imprisonment required by 
statute. Chapters Three and Four shall not apply to that count of 
conviction.
    (b) Except as provided in subsection (c), if the defendant, whether 
or not convicted of another crime, was convicted of violating section 
924(c) or section 929(a) of title 18, United States Code, the guideline 
sentence is the minimum term of imprisonment required by statute. 
Chapters Three and Four shall not apply to that count of conviction.
    (c) If the defendant (i) was convicted of violating section 924(c) 
or section 929(a) of title 18, United States Code; and (ii) as a result 
of that conviction (alone or in addition to another offense of 
conviction), is determined to be a career offender under 
Sec. 4B1.1(Career Offender), the guideline sentence shall be determined 
under Sec. 4B1.1(c). Except for Secs. 3E1.1 (Acceptance of 
Responsibility), 4B1.1, and 4B1.2 (Definitions of Terms Used in Section 
4B1.1), Chapters Three and Four shall not apply to that count of 
conviction.''.
    The Commentary to Sec. 2K2.4 captioned ``Application Notes'' is 
amended by striking the text of Note 1 and inserting the following:
    ``(A) Application of Subsection (a).--Section 844(h) of title 18, 
United State Code, provides a mandatory term of imprisonment of 10 
years (or 20 years for the second or subsequent offense). Accordingly, 
the guideline sentence for a defendant convicted under 18 U.S.C. 
Sec. 844(h) is the term required by the statute. Section 844(h) of 
title 18, United States Code, also requires a term of imprisonment 
imposed under that section to run consecutively to any other term of 
imprisonment.
    (B) Application of Subsection (b).--Sections 924(c) and 929(a) of 
title 18, United States Code, provide mandatory minimum terms of 
imprisonment (e.g., not less than five years). Except as provided in 
subsection (c), in a case in which the defendant is convicted under 18 
U.S.C. Sec. 924(c) or Sec. 929(a), the guideline sentence is the 
minimum term required by the relevant statute. Each of 18 U.S.C. 
Secs. 924(c) and 929(a) also requires that a term of imprisonment 
imposed under this section shall run consecutively to any other term of 
imprisonment.
    In a case in which the guideline sentence is determined under 
subsection (b), a sentence above the minimum term required by 18 U.S.C. 
Sec. 924(c) or Sec. 929(a) is an upward departure from the guideline 
sentence. A departure may be warranted, for example, to reflect the 
seriousness of the defendant's criminal history in a case in which the 
defendant is convicted of an 18 U.S.C. Sec. 924(c) or Sec. 929(a) 
offense but is not determined to be a Career Offender under Sec. 4B1.1. 
See Application Note 3.
    (C) Application of Subsection (c).--In a case in which the 
defendant (i) was convicted of violating 18 U.S.C. Sec. 924(c) or 18 
U.S.C. Sec. 929(a) and (ii) as a result of that conviction (alone or in 
addition to another offense of conviction), is determined to be a 
career offender under Sec. 4B1.1(Career Offender), the guideline 
sentence shall be determined under Sec. 4B1.1(c). The amount of the 
mandatory term of imprisonment that is imposed to run consecutively in 
such a case also is determined under Sec. 4B1.1(c).''.
    The Commentary to Sec. 2K2.4 captioned ``Application Notes'' is 
amended in Note 2 in the first sentence of the first paragraph by 
inserting ``Weapon Enhancement--'' before ``If a sentence''; and by 
striking the third paragraph (beginning ``In a few cases,'') in its 
entirety.
    The Commentary to Sec. 2K2.4 captioned ``Application Notes'' is 
amended by striking the text of Note 3 and inserting the following:

[[Page 59335]]

    ``Chapters Three and Four.--Except for those cases covered by 
subsection (c), do not apply Chapter Three (Adjustments) and Chapter 
Four (Criminal History and Criminal Livelihood) to any offense 
sentenced under this guideline. Such offenses are excluded from 
application of these chapters because the guideline sentence for each 
offense is determined only by the relevant statute. See Secs. 3D1.1 
(Procedure for Determining Offense Level on Multiple Counts) and 5G1.2 
(Sentencing on Multiple Counts of Conviction). For those cases covered 
by subsection (c), the adjustment in Sec. 3E1.1 (Acceptance of 
Responsibility) may apply, as provided in Sec. 4B1.1(c). No other 
adjustments in Chapter Three and no provisions of Chapter Four 
(Criminal History and Criminal Livelihood), other than Secs. 4B1.1 and 
4B1.2, shall apply in determining the guideline sentence on a 
conviction under 18 U.S.C. Sec. 924(c) or Sec. 929(a).''.
    The Commentary to Sec. 2K2.4 captioned ``Application Notes'' is 
amended in Note 4 by inserting ``Terms of Supervised Release.--'' 
before ``Imposition''.
    The Commentary to Sec. 2K2.4 captioned ``Application Notes'' is 
amended in Note 5 by inserting ``Fines.--'' before ``Subsection (b)''.
    Section 4B1.1 is amended by striking ``A defendant is a career 
offender'' and all that follows through ``corresponding to that 
adjustment.'' and inserting the following:
    ``(a) A defendant is a career offender if (1) the defendant was at 
least eighteen years old at the time the defendant committed the 
instant offense of conviction, (2) the instant offense of conviction is 
a felony that is either a crime of violence or a controlled substance 
offense, and (3) the defendant has at least two prior felony 
convictions of either a crime of violence or a controlled substance 
offense.
    (b) Except as provided in subsection (c), if the offense level for 
a career offender from the table below is greater than the offense 
level otherwise applicable, the offense level from the table below 
shall apply. A career offender's criminal history category in every 
case under this subsection shall be Category VI.

------------------------------------------------------------------------
                                                                Offense
                  Offense statutory maximum                     level *
------------------------------------------------------------------------
(1) Life.....................................................         37
(2) 25 years or more.........................................         34
(3) 20 years or more, but less than 25 years.................         32
(4) 15 years or more, but less than 20 years.................         29
(5) 10 years or more, but less than 15 years.................         24
(6) 5 years or more, but less than 10 years..................         17
(7) More than 1 year, but less than 5 years..................        12
------------------------------------------------------------------------
* If an adjustment from Sec.  3E1.1 (Acceptance of Responsibility)
  applies, decrease the offense level by the number of levels
  corresponding to that adjustment.

    (c) If the defendant (1) was convicted of violating 18 U.S.C. 
Sec. 924(c) or Sec. 929(a); and (2) as a result of that conviction 
(alone or in addition to another offense of conviction), is determined 
to be a career offender under subsection (a):
    (A) The offense level shall be--
    (i) in the case of a conviction only of an offense under 18 U.S.C. 
Sec. 924(c) or Sec. 929(a): level 37, decreased by the number of levels 
corresponding to any adjustment under Sec. 3E1.1 (Acceptance of 
Responsibility) that applies; or
    (ii) in the case of multiple counts of conviction: the greater of 
(I) the offense level applicable to the counts of conviction other than 
the 18 U.S.C. Sec. 924(c) or Sec. 929(a) count, or (II) level 37, 
decreased by the number of levels corresponding to any adjustment under 
Sec. 3E1.1 that applies.
    (B) The criminal history category shall be Category VI.
    (C) The amount of the mandatory term of imprisonment that is 
imposed to run consecutively shall be determined as follows:
    (i) A consecutive sentence of imprisonment shall be imposed on any 
count of conviction under 18 U.S.C. Sec. 924(c) or Sec. 929(a). The 
length of such consecutive sentence shall be at least the minimum term 
required by law.
    (ii) After taking into account the required statutory minimum 
consecutive sentence under subdivision (i), the balance of the total 
punishment shall be allocated and imposed, to the extent possible, on 
the counts of conviction, other than 18 U.S.C. Secs. 924(c) and 929(a), 
in accordance with the rules in Sec. 5G1.2 (Sentencing on Multiple 
Counts of Conviction), as applicable.
    (iii) If the statutory minimum sentence on the count of conviction 
under 18 U.S.C. Sec. 924(c) or Sec. 929(a) together with the sentence 
imposed on the remaining counts is less than the total punishment, then 
the minimum sentence on the count of conviction under 18 U.S.C. 
Sec. 924(c) or Sec. 929(a) shall be increased to the extent necessary 
to achieve the total punishment.''.
    The Commentary to Sec. 4B1.2 captioned ``Application Notes'' is 
amended by striking in the first paragraph of Note 1 ``For purposes of 
this guideline--'' and inserting ``Definitions.--For purposes of this 
guideline:''; and by striking ``A prior conviction for violating'' and 
all that follows through ``Criminal History)).'' and inserting the 
following:
    ``A violation of 18 U.S.C. Sec. 924(c) or Sec. 929(a) is a ``crime 
of violence'' or a ``controlled substance offense'' if the offense of 
conviction established that the underlying offense was a ``crime of 
violence'' or a ``controlled substance offense''. (Note that in the 
case of a prior 18 U.S.C. Sec. 924(c) or Sec. 929(a) conviction, if the 
defendant also was convicted of the underlying offense, the two prior 
convictions will be treated as related cases under Sec. 4A1.2 
(Definitions and Instruction for Computing Criminal History)).''.
    The Commentary to Sec. 4B1.2 captioned ``Application Notes'' is 
amended by striking the text of Note 2 in its entirety and inserting 
the following:
    ``Application of Sec. 4B1.1(c).--
    (A) In General.--Section 4B1.1(c) applies in any case in which the 
defendant (i) was convicted of violating 18 U.S.C. Sec. 924(c) or 
Sec. 929(a); and (ii) as a result of that conviction (alone or in 
addition to another offense of conviction), is determined to be a 
career offender under Sec. 4B1.1(a).
    (B) Imposition of Consecutive Term of Imprisonment.--The amount of 
the mandatory term of imprisonment that is imposed to run consecutively 
in such a case also is determined under Sec. 4B1.1(c). The sentence 
imposed for a conviction under 18 U.S.C. Sec. 924(c) or Sec. 929(a) 
must, under that statute, consist of a minimum term of imprisonment 
imposed to run consecutively to the sentence on any other count. In the 
case of a career offender to whom Sec. 4B1.1(c) applies, typically the 
court will determine the applicable statutory minimum sentence, 
subtract that minimum from the total punishment determined for all 
counts considered together, impose that minimum consecutive sentence on 
the 18 U.S.C. Sec. 924(c) or Sec. 929(a) count, and then impose the 
balance of the total punishment on the other counts in accordance with 
the rules provided in Sec. 5G1.2 (Sentencing on Multiple Counts of 
Convictions). In some cases covered by Sec. 4B1.1(c), a consecutive 
term of imprisonment longer than the minimum required by the 18 U.S.C. 
Sec. 924(c) or Sec. 929(a) statute will be necessary in order both to 
achieve the required total punishment determined by the court and also 
comply with the applicable statutory requirements. Note that a

[[Page 59336]]

consecutive sentence longer than the statutory minimum under 18 U.S.C. 
Sec. 924(c) or Sec. 929(a) will be necessary when the total guideline 
punishment determined by the court exceeds the aggregate statutory 
maximum term(s) of imprisonment on any counts other than 18 U.S.C. 
Secs. 924(c) and 929(a) by more than the aggregate statutory minimum 
terms on the 18 U.S.C. Secs. 924(c) and 929(a) counts.
    (C) Examples.--The following examples illustrate the application of 
Sec. 4B1.1(c) in a variety of multiple count situations in which the 18 
U.S.C. Sec. 924(c) count establishes the defendant as Career Offender:
    (i) The defendant is convicted of one count of violating 18 U.S.C. 
Sec. 924(c) for possessing a firearm in furtherance of a drug 
trafficking crime (15 year mandatory minimum), and one count of 
violating 21 U.S.C. Sec. 841(b)(1)(C) (assume the statutory maximum of 
20 years applies). Applying Sec. 4B1.1(c), the court determines a 
combined offense level of 34 (assuming a 3-level reduction under 
Sec. 3E1.1), and determines that a total punishment of 300 months is 
appropriate. The court then imposes a minimum sentence of 60 months, as 
statutorily required under 18 U.S.C. Sec. 924(c), and also as required 
by 18 U.S.C. Sec. 924(c), imposes that sentence to run consecutively to 
a sentence of 240 months (300-60 = 240) imposed on the 21 U.S.C. 
Sec. 841 count. Alternatively, had the court determined that a sentence 
of 327 months (top of the guideline range) was appropriate, it 
necessarily would have increased the consecutive sentence on the 18 
U.S.C. Sec. 924(c) count to 87 months.
    (ii) The defendant is convicted of one count of 18 U.S.C. 
Sec. 924(c) (firearm possession in furtherance of drug trafficking), 
one count of drug trafficking under 21 U.S.C. Sec. 841(b)(1)(C) (assume 
the statutory maximum sentence of 30 years applies), and one count of 
violating 21 U.S.C. Sec. 843(b) (statutory maximum of 4 years). 
Applying Sec. 4B1.1(c), the court determines a combined offense level 
of 36 and selects a total punishment of 324 months. Sentence is imposed 
as follows: (I) a minimum sentence of 60 months on the 18 U.S.C. 
Sec. 924(c) count imposed to run consecutively to all other counts; 
(II) a sentence of 264 months on the 21 U.S.C. Sec. 841 count (324-60 = 
264 months balance of total punishment to be allocated and imposed on 
the non-924(c) counts); and (III) a sentence of 48 months on the 21 
U.S.C. Sec. 843(b) count, imposed to run concurrently with the 21 
U.S.C. Sec. 841 count. Alternatively, if the court had determined that 
a sentence of 405 months (top of the guideline range) was appropriate, 
the sentence on the 21 U.S.C. Sec. 841 count would have been increased 
to 345 months (405-60 = 345).
    (iii)The defendant is convicted of two counts of 18 U.S.C. 
Sec. 924(c) (for possessing a firearm in two separate drug trafficking 
offenses), and one count of conspiracy under 21 U.S.C. Sec. 846 (assume 
a statutory maximum of life and minimum of ten years is applied). The 
court determines, under Sec. 4B1.1(c), that the combined offense level 
is 42 and that a total punishment of 480 months is appropriate. As 
required by statute, a minimum consecutive sentence of 60 months is 
imposed on the first 18 U.S.C. Sec. 924(c) count, and a minimum 
consecutive sentence of 300 months is imposed on the second 18 U.S.C. 
Sec. 924(c) count. The balance of the total punishment, 120 months 
(480-(60 + 300) = 120), is imposed on the 21 U.S.C. Sec. 846 count.''.
    Section 5G1.2(a) is amended by inserting a comma after ``other term 
of imprisonment''; and by inserting ``, except as provided in 
Sec. 4B1.1 (Career Offender)'' after ``independently''.
    The Commentary to Sec. 5G1.2 is amended by striking the first 
paragraph and inserting the following:
    ``Application Notes:
    1. In General.--This section specifies the procedure for 
determining the specific sentence to be formally imposed on each count 
in a multiple-count case. The combined length of the sentences (``total 
punishment'') is determined by the court after determining the adjusted 
combined offense level and the Criminal History Category. Except as 
otherwise required by law or by Sec. 4B1.1(c), the total punishment is 
to be imposed on each count, and the sentences on all counts are 
imposed to run concurrently to the extent allowed by the statutory 
maximum sentence of imprisonment for each count of conviction.''; and 
by striking the last paragraph and inserting the following:
    ``2. Mandatory Minimum and Mandatory Consecutive Terms of 
Imprisonment (Not Covered by Special Instruction).--Subsection (a) 
applies if a statute (A) specifies a term of imprisonment to be 
imposed; and (B) requires that such term of imprisonment be imposed to 
run consecutively to any other term of imprisonment. See, e.g., 18 
U.S.C. Sec. 924(c) (requiring mandatory minimum terms of imprisonment, 
based on the conduct involved, and also requiring the sentence imposed 
to run consecutively to any other term of imprisonment). Except for 
certain Career Offender situations in which subsection (c) of 
Sec. 4B1.1 (Career Offender) applies, the term of years to be imposed 
consecutively is the minimum required by the statute of conviction, and 
is independent of the guideline sentence on any other count. See, e.g., 
Commentary to Secs. 2K2.4 (Use of Firearm, Armor-Piercing Ammunition, 
or Explosive During or in Relation to Certain Crimes) and 3D1.1 
(Procedure for Determining Offense Level on Multiple Counts) regarding 
determination of the offense levels for related counts when a 
conviction under 18 U.S.C. Sec. 924(c) is involved. Note, however, that 
even in the case of a consecutive term of imprisonment imposed under 
subsection (a), any term of supervised release imposed is to run 
concurrently with any other term of supervised release imposed. See 18 
U.S.C. Sec. 3624(e). Subsection (a) also applies in certain other 
instances in which an independently determined and consecutive sentence 
is required. See, e.g., Application Note 3 of the Commentary to 
Sec. 2J1.6 (Failure to Appear by Defendant), relating to failure to 
appear for service of sentence.''.

4. Synopsis of Proposed Amendment

    This amendment proposes to expand the persons who may qualify as an 
official victim for purposes of the enhancement in Sec. 3A1.2 (Official 
Victim). Specifically, this proposed amendment responds to United 
States v. Walker, 202 F.3d 181 (3d Cir. 1999), which held that the 
enhancement under Sec. 3A1.2(b) was not applicable in the case of a 
defendant prison inmate who attacked his supervisor, a food service 
department employee at the prison. Walker held that the work supervisor 
was not a corrections officer within the meaning of Sec. 3A1.2. The 
proposed amendment amends Sec. 3A1.2(b) to apply to assaults of any 
prison employee or other person retained or designated by the prison to 
perform duties within the prison. The amendment also limits application 
of the enhancement, in the case of assaults on corrections officers and 
prison employees, to offenses that occurred while the defendant was in 
the custody or control of the correctional facility or prison.
    A general request for comment follows regarding the appropriate 
scope of coverage under the enhancement (i.e., who should be considered 
an official victim for purposes of proposed subsection (b)(2)).
    Section 3A1.2 is amended by striking the text of subsection (b) and 
inserting the following:
    ``during the course of the offense or immediate flight therefrom, 
the defendant or a person for whose conduct the defendant is otherwise

[[Page 59337]]

accountable, knowing or having reasonable cause to believe that a 
person was--
(1) a law enforcement officer, or
(2) a corrections officer or prison employee, in the case of an offense 
that occurred while the defendant (or a person for whose conduct the 
defendant is otherwise accountable) was in the custody or control of a 
prison or other correctional facility,

assaulted such officer or employee in a manner creating a substantial 
risk of serious bodily injury,

increase by 3 levels.''.
    The Commentary to Sec. 3A1.2 captioned ``Application Notes'' is 
amended by striking the text of Note 5 and inserting the following:
    ``Subdivision (b) applies in circumstances tantamount to aggravated 
assault against a law enforcement officer, corrections officer, or 
prison employee, committed in the course of, or in immediate flight 
following, another offense. While this subdivision may apply in 
connection with a variety of offenses that are not by nature targeted 
against official victims (such as a bank robbery), its applicability is 
limited to assaultive conduct against law enforcement officers, 
corrections officers, or prison employees that is sufficiently serious 
to create at least a ``substantial risk of serious bodily injury'' and 
that is proximate in time to the commission of the offense.
    ``Prison employee'', for purposes of subsection (b)(2), includes 
any individual retained or designated by a prison or other correctional 
facility to perform any duty or function within the prison or other 
correctional facility, regardless of whether the individual is 
compensated for the performance of the duty or function and whether the 
individual technically is an employee of the prison or other 
correctional facility. For example, the term ``prison employee'' 
includes an individual employed by the prison as a kitchen supervisor, 
as well as a nurse who, under contract, provides medical services to 
prisoners in the prison health facility.''.
    Issue for Comment: The Commission requests comment on the 
appropriate scope of the enhancement provided in Sec. 3A1.2(b)(2). Are 
there particular individuals or groups of individuals against whom 
assaults by the defendant in a correctional or prison setting should 
subject the defendant to enhanced punishment? For example, should the 
enhancement be expanded, further than that proposed in the amendment, 
to include individuals who assist law enforcement officers in the 
performance of official duties? Should the enhancement cover 
individuals who perform functions within a prison (as an employee, 
under contract, or otherwise) but who do not have regular contact with, 
or exercise any supervision of, prisoners (e.g., an electrician under 
contract who repairs wiring in a building typically off-limits to 
prisoners)? Should the enhancement cover, for example, a minister or 
attorney who is assaulted while providing volunteer services to 
inmates?

5. Synopsis of Amendment

    This proposal amends Sec. 3E1.1 (Acceptance of Responsibility) by 
(1) deleting subsection (b)(1) which provides an additional one-level 
reduction if the defendant timely provides complete information to the 
government concerning his own involvement in the offense; and (2) 
resolving a circuit conflict regarding whether the court may deny an 
acceptance of responsibility reduction when the defendant commits a new 
offense unrelated to the offense of conviction.
    Section 3E1.1(b) provides alternative reductions for either (1) 
timely providing complete information to the government concerning the 
defendant's own involvement in the offense; or (2) timely notifying 
authorities of the defendant's intention to enter a plea of guilty. 
Subsection (b)(2) specifically addresses the goal of permitting the 
government to avoid preparing for trial and permitting the court to 
allocate its resources efficiently. However, it has been argued that 
subsection (b)(1) undermines the incentive to plead guilty in 
subsection (b)(2), because the defendant can receive the reduction even 
if the defendant has caused the government and the court to devote 
substantial resources to preparing the case for trial. Under this 
proposal, a defendant who accepts responsibility for the offense would 
receive a two-level reduction under subsection (a), and an additional 
one-level reduction only if the defendant timely notifies authorities 
of his intent to plead guilty. This proposal is intended to save both 
judicial and governmental resources by providing defendants a stronger 
incentive to timely plead guilty.
    This amendment also resolves a circuit conflict regarding whether 
the court may deny an acceptance of responsibility reduction when the 
defendant commits a new offense unrelated to the offense of conviction. 
The majority of circuits have held that the sentencing court may 
consider new criminal conduct (i.e., conduct occurring after the 
defendant has been charged for the instant offense), such as subsequent 
drug use or the commission of the new offense, when determining whether 
an adjustment for acceptance of responsibility is warranted. The Sixth 
Circuit, the sole minority circuit, has held that the court may not 
look at post-indictment conduct unrelated to the offense of conviction 
when assessing the defendant's acceptance of responsibility for the 
underlying offense (see United States v. Morrison, 983 F.2d 730 (6th 
Cir. 1993)). This amendment adopts the majority view by making clear 
that a defendant who commits another offense while pending trial or 
sentencing on the instant offense ordinarily is not entitled to a 
reduction under this guideline.
    Section 3E1.1(b) is amended by striking ``has assisted 
authorities'' and all that follows through ``notifying'' and inserting 
``notified''.
    The Commentary to Sec. 3E1.1 captioned ``Application Notes'' is 
amended in Note 1 by inserting ``Appropriate Considerations in 
Determining Applicability of Acceptance of Responsibility.--'' before 
``In determining''.
    The Commentary to Sec. 3E1.1 captioned ``Application Notes'' is 
amended in Note 2 by inserting ``Convictions by Trial.--'' before 
``This adjustment''.
    The Commentary to Sec. 3E1.1 captioned ``Application Notes'' is 
amended in Note 3 by inserting ``Application of Subsection (a).--'' 
before ``Entry of a plea''.
    The Commentary to Sec. 3E1.1 captioned ``Application Notes'' is 
amended by striking the text of Note 4 in its entirety and inserting 
the following:
    ``Inapplicability of Adjustment.--A defendant who (A) receives an 
enhancement under Sec. 3C1.1 (Obstructing or Impeding the 
Administration of Justice); or (B) commits another offense while 
pending trial or sentencing on the instant offense, ordinarily is not 
entitled to a reduction under this guideline. [There may, however, be 
extraordinary cases in which an adjustment under this guideline is 
warranted even though the defendant received an enhancement under 
Sec. 3C1.1, or committed another such offense, or both.]''.
    The Commentary to Sec. 3E1.1 captioned ``Application Notes'' is 
amended in Note 5 by inserting ``Deference on Review.--'' before ``The 
sentencing judge''.
    The Commentary to Sec. 3E1.1 captioned ``Application Notes'' is 
amended by striking the first sentence of Note 6 and inserting 
``Application of Subsection (b).--''; and by striking ``has assisted 
authorities in the investigation or prosecution of his own misconduct 
by

[[Page 59338]]

taking one or both of the steps set forth in subsection (b)'' and 
inserting ``timely notified authorities of the defendant's intention to 
enter a guilty plea''.
    The Commentary to Sec. 3E1.1 captioned ``Background'' is amended in 
the second sentence of the first paragraph by striking ``by taking, in 
a timely fashion, one or more of the actions listed above (or some 
equivalent action)''; and in the second paragraph by striking ``has 
assisted authorities in the investigation or prosecution of his own 
misconduct by taking one or more of the steps specified in subsection 
(b)'' and inserting ``timely notified authorities of the defendant's 
intention to enter a guilty plea''.

6. Synopsis of Proposed Amendment

    This proposed amendment makes technical and conforming changes to 
various guideline provisions. The proposed amendment accomplishes the 
following:
    (1) Clarifies that language in Sec. 5D1.2(c) (recommending the 
maximum term of supervised release for sex offenders) is a policy 
statement;
    (2) Conforms the language in Sec. 2B4.1(b)(2) concerning offenses 
that ``affect a financial institution'' with subsection (b)(12) of 
Sec. 2B1.1 (Larceny, Embezzlement, and other forms of Theft; Offenses 
Involving Stolen Property; Property Damage or Destruction; Fraud and 
Deceit).
    (3) Inserts a missing ``or'' in Secs. 2C1.7(b)(1)(A) and 
2Q1.6(a)(3).
    (4) (A) Updates statutory references in Secs. 2D1.9 (Placing or 
Maintaining Dangerous Devices on Federal Property to Protect the 
Unlawful Production of Controlled Substances; Attempt and Conspiracy), 
2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a 
Listed Chemical; Attempt or Conspiracy), and 2D1.13 (Structuring 
Chemical Transactions or Creating a Chemical Mixture to Evade Reporting 
or Recordkeeping Requirements) and Appendix A (Statutory Index) to 
correspond to statutory redesignations made by the Hillory J. Farias 
and Samantha Reid Date Rape Prevention Act; and (B) corrects references 
to the new chemical quantity tables in Sec. 2D1.11.
    (5) Corrects a change to the commentary of Sec. 2N2.1(b)(1) that 
was inadvertently made as part of the conforming package of amendments 
in the Economic Crime Package.
    (6) Corrects a grammatical error in Note (D) of Sec. 2T1.1(c)(1) by 
replacing ``subdivisions (A), (B), or (C)'' with ``subdivision (A), 
(B), or (C)''.
    (7) Adds a mandatory condition to Secs. 5B1.3 (Conditions of 
Probation) and 5D1.3 (Conditions of Supervised Release) that the 
defendant provide DNA if the defendant is required to do so by the DNA 
Analysis Backlog Elimination Act of 2000. Pursuant to section 3 of this 
Act, a defendant is required to provide a DNA sample if the defendant 
is convicted of certain offenses (e.g., murder, kidnapping).
    (8) Deletes from Application Note 5 of Sec. 5E1.1 (Fines for 
Individual Defendants) an incorrect statement concerning the Clean Air 
Act.
    (9) Inserts a missing ``Background'' title in Sec. 5F1.7 (Shock 
Incarceration).
    (10) Conforms Part A of Chapter Seven and Sec. 7B1.3 (Revocation of 
Supervised Release) to current statutory law and provides an 
explanatory note concerning the condition of intermittent confinement 
as a condition of supervised release.
    (11) Updates statutory references in Sec. 5F1.5 (Occupational 
Restrictions).
    (12) Refers 18 U.S.C. Sec. 2245 (sexual abuse resulting in death) 
to Sec. 2A1.1 (First Degree Murder) in Appendix A (Statutory Index).
    (13) Repromulgates amendment 568, effective November 1, 1997, to 
correct an inadvertent omission of a conforming amendment to Sec. 4B1.4 
(Armed Career Criminal) from amendment 568.
    (14) Responds to new legislation as follows:
    (A) Updates, in Sec. 2B1.1, a statutory reference in the definition 
of ``means of identification'' to correspond to a redesignation made by 
the Internet False Identification Prevention Act of 2000, Pub. L. 106-
578, Dec. 28, 2000, 114 Stat. 305.
    (B) References in Appendix A two new offenses created by the 
American Homeownership and Economic Opportunity Act of 2000, Pub. L. 
106-569, Dec. 27, 2000, _ Stat. _. Section 5410(b) of title 42, which 
provides that knowing and willful violations of a state's installation 
program standards shall be punishable as a Class A misdemeanor, is 
referenced to Sec. 2N2.1. Section 14905 of title 42, which provides a 
criminal penalty of a $250,000 fine and five years' imprisonment for 
equity skimming, is referenced to Sec. 2B1.1.
    (C) References 16 U.S.C. Sec. 1437(c) to Sec. 2A2.4 (Obstructing or 
Impeding Officers). Section 1437, as amended by the National Marine 
Sanctuaries Act of 2000, Pub. L. 106-513, Nov. 13, 2000, 114 Stat. 
2387, prohibits the interference with the enforcement of conservation 
activities authorized in title 16, United States Code, including 
refusing to permit any officer authorized to enforce such title to 
board a vessel for purposes of conducting a search or inspection in 
connection with the enforcement of title 16. The Act provides a 
statutory maximum of six months, or if the offense involved the use of 
a dangerous weapon or resulted in bodily injury, a statutory maximum of 
10 years. Section 1437(c) seems sufficiently similar to other offenses 
referenced to Sec. 2A2.4 to warrant reference to this guideline.
    (15) Proposes several changes to Sec. 2G1.1 (Promoting Prostitution 
or Prohibited Sexual Conduct) to address more adequately the portion of 
section 112(b) of the Victims of Trafficking and Violence Protection 
Act of 2000 (the ``Act''), Pub. L. 106-386, pertaining to the new 
offense at 18 U.S.C. Sec. 1591 (Sex Trafficking of Children by Force, 
Fraud or Coercion). Section 1591 prohibits knowingly transporting or 
harboring any person, or benefitting from such transporting or 
harboring, knowing either that force, fraud, or coercion will be used 
to cause that person to engage in a commercial sex act, or that the 
person is not 18 years old and will be forced to engage in a commercial 
sex act.
    In response to the Act, the Commission, in March 2001, passed an 
amendment that (A) referenced 18 U.S.C. Sec. 1591 to Secs. 2G1.1 
(Promoting Prostitution or Prohibited Sexual Conduct) and 2G2.1 
(Sexually Exploiting a Minor by Production of Sexually Explicit Visual 
or Printed Material); and (B) provided an encouraged upward departure 
in Sec. 2G1.1 to address cases in which (i) the defendant was convicted 
under 18 U.S.C. Sec. 1591 and the offense involved a victim who had not 
attained the age of 14 years; or (ii) the offense involved more than 10 
victims. Staff had recommended additional changes to Sec. 2G1.1 at that 
time but because adequate public notice regarding those changes had not 
been provided, staff recommended that the changes be made during this 
amendment cycle.
    This amendment proposes three substantive changes to Sec. 2G1.1. 
First, this amendment broadens the conduct covered by the guideline to 
all commercial sex acts. Currently, the conduct covered by the 
guideline is limited to prostitution. Second, this amendment expands 
the ``force or coercion'' prong of Sec. 2G1.1(b)(1) to also cover 
offenses involving fraud. This change addresses the increased 
punishment provided by section 1591 for offenses effected by ``force, 
fraud, or coercion''. Third, after reviewing again the statute and the 
encouraged upward departure note that the Commission passed in March, 
staff recommends deleting the portion of the note

[[Page 59339]]

pertaining to the age of the victim because it encourages a departure 
for conduct arguably covered by the guideline in subsection (b)(2).
    Section 5D1.2 is amended in subsection (c) by inserting ``(Policy 
Statement)'' before ``If the instant''.
    Section 2B4.1 is amended by striking subsection (b)(2) in its 
entirety and inserting the following:
    ``(2) (Apply the greater) If--
    (A) the defendant derived more than $1,000,000 in gross receipts 
from one or more financial institutions as a result of the offense, 
increase by 2 levels; or
    (B) the offense substantially jeopardized the safety and soundness 
of a financial institution, increase by 4 levels.
    If the resulting offense level determined under subdivision (A) or 
(B) is less than level 24, increase to level 24.''
    The Commentary to Sec. 2B4.1 captioned ``Application Notes'' is 
amended by striking Notes 4 and 5 and inserting the following:
    ``4. Gross Receipts Enhancement under Subsection (b)(2)(A).--
    (A) In General.--For purposes of subsection (b)(2)(A), the 
defendant shall be considered to have derived more than $1,000,000 in 
gross receipts if the gross receipts to the defendant individually, 
rather than to all participants, exceeded $1,000,000.
    (B) Definition.--`Gross receipts from the offense' includes all 
property, real or personal, tangible or intangible, which is obtained 
directly or indirectly as a result of such offense. See 18 U.S.C. 
Sec. 982(a)(4).
    5. Enhancement for Substantially Jeopardizing the Safety and 
Soundness of a Financial Institution under Subsection (b)(2)(B).--For 
purposes of subsection (b)(2)(B), an offense shall be considered to 
have substantially jeopardized the safety and soundness of a financial 
institution if, as a consequence of the offense, the institution (A) 
became insolvent; (B) substantially reduced benefits to pensioners or 
insureds; (C) was unable on demand to refund fully any deposit, 
payment, or investment; (D) was so depleted of its assets as to be 
forced to merge with another institution in order to continue active 
operations; or (E) was placed in substantial jeopardy of any of 
subdivisions (A) through (D) of this note.''.
    Section 2C1.7 is amended in subsection (b)(1)(A) by striking the 
period at the end and inserting ``; or''.
    Section 2Q1.6 is amended in subsection (a)(3) by inserting at the 
end ``or''.
    The Commentary to Sec. 2D1.9 captioned ``Statutory Provisions'' is 
amended by striking ``(e)'' after ``841'' and inserting ``(d)''.
    Section 2D1.11(a) is amended by striking ``below'' and inserting 
``or (e), as appropriate''.
    Section 2D1.11 is amended in the Notes before the Commentary in 
Note (A) by striking ``of this guideline'' and inserting ``or (e) of 
this guideline, as appropriate''.
    The Commentary to Sec. 2D1.11 captioned ``Statutory Provisions'' is 
amended by striking ``(d)'' after ``841'' and inserting ``(c)''; and by 
striking ``(g)'' and inserting ``(f)''.
    The Commentary to Sec. 2D1.13 captioned ``Statutory Provisions'' is 
amended by striking ``(d)'' and inserting ``(c)''; and by striking 
``(g)'' and inserting ``(f)''.
    Appendix A (Statutory Index) is amended in the line referenced to 
``21 U.S.C. Sec. 841(d)(1),(2)'' by striking ``(d)'' and inserting 
``(c)'';
    In the line referenced to ``21 U.S.C. Sec. 841(d)(3)'' by striking 
``(d)'' and inserting ``(c)'';
    In the line referenced to ``21 U.S.C. Sec. 841(e)'' by striking 
``(e)'' and inserting ``(d)''; and
    In the line referenced to ``21 U.S.C. Sec. 841(g)'' by striking 
``(g)'' and inserting ``(f)''.
    The Commentary to Sec. 2N2.1 captioned ``Application Notes'' is 
amended in Note 2 by striking ``theft, property destruction, or''.
    Section 2T1.1 is amended in the Notes following subsection (c)(1) 
in Note D by striking ``subdivisions'' and inserting ``subdivision''.
    Section 5B1.3(a) is amended by adding at the end the following new 
subdivision:
    ``(10) the defendant shall submit to the collection of a DNA sample 
from the defendant at the direction of the United States Probation 
Office if the collection of such a sample is authorized pursuant to 
section 3 of the DNA Analysis Backlog Elimination Act of 2000 (42 
U.S.C. Sec. 14135a).''.
    Section 5D1.3(a) is amended by adding at the end the following new 
subdivision:
    ``(8) the defendant shall submit to the collection of a DNA sample 
from the defendant at the direction of the United States Probation 
Office if the collection of such a sample is authorized pursuant to 
section 3 of the DNA Analysis Backlog Elimination Act of 2000 (42 
U.S.C. Sec. 14135a).''.
    The Commentary to Sec. 5E1.2 captioned ``Application Notes'' is 
amended in Note 5 by striking ``; and 42 U.S.C. Sec. 7413(c), which 
authorizes a fine of up to $25,000 per day for violations of the Clean 
Air Act''.
    The Commentary to Sec. 5F1.7 is amended by inserting before the 
first paragraph ``Background''.
    Chapter Seven, Part A, is amended in the second paragraph of 2(b) 
captioned ``Supervised Release'' by striking ``intermittent 
confinement'' and inserting ``residency in, or participation in the 
program of, a community corrections facility*''; and by adding at the 
end the following:

    ``*Note: Section 3583(d) of title 18, United States Code, 
provides that `[t]he court may order, as a further condition of 
supervised release* * *any condition set forth as a discretionary 
condition of probation in section 3563(b)(1) through (b)(10) and 
(b)(12) through (b)(20), and any other condition it considers to be 
appropriate.' Subsection (b)(11) of section 3563 is explicitly 
excluded as a condition of supervised release. Before the enactment 
of the Antiterrorism and Effective Death Penalty Act of 1996, the 
condition at subsection (b)(11) was intermittent confinement. The 
Act deleted 18 U.S.C. Sec. 3563(b)(2), authorizing the payment of a 
fine as a condition of probation, and re-designated the remaining 
conditions of probation set forth in 18 U.S.C. Sec. 3563(b); 
intermittent confinement is now set forth at subsection (b)(10), 
whereas subsection (b)(11) sets forth the condition of residency at 
a community corrections facility. It would appear that intermittent 
confinement now is authorized as a condition of supervised release.
    However, there is some question as to whether Congress intended 
this result. Although the Antiterrorism and Effective Death Penalty 
Act re-designated the remaining paragraphs of section 3563(b), it 
failed to make the corresponding re-designations in 18 U.S.C. 
Sec. 3583(d), regarding discretionary conditions of supervised 
release. While imposition of intermittent confinement as a condition 
of supervised release does not violate the letter of the law as it 
is currently written, imposition of the condition arguably may not 
be consistent with its long-standing intent.''.
    The Commentary to Sec. 7B1.3 captioned ``Application Notes'' is 
amended in Note 5 by striking ``18 U.S.C. Sec. 3563(b)(11). 
Intermittent confinement is not authorized as a condition of 
supervised release. 18 U.S.C. Sec. 3583(d).'' and inserting ``18 
U.S.C. Sec. 3563(b)(10)''.


    *Note: Section 3583(d) of title 18, United States Code, provides 
that`[t]he court may order, as a further condition of supervised 
release* * *any condition set forth as a discretionary condition of 
probation in section 3563(b)(1) through (b)(10) and (b)(12) through 
(b)(20), and any other condition it considers to be appropriate.' 
Subsection (b)(11) of section 3563 is explicitly excluded as a 
condition of supervised release. Before the enactment of the 
Antiterrorism and Effective Death Penalty Act of 1996, the condition 
at subsection (b)(11) was intermittent confinement. The Act deleted 
18 U.S.C. Sec. 3563(b)(2), authorizing the payment of a fine as a 
condition of probation, and re-

[[Page 59340]]

designated the remaining conditions of probation set forth in 18 
U.S.C. Sec. 3563(b); intermittent confinement is now set forth at 
subsection (b)(10), whereas subsection (b)(11) sets forth the 
condition of residency at a community corrections facility. It would 
appear that intermittent confinement now is authorized as a 
condition of supervised release.
    However, there is some question as to whether Congress intended 
this result. Although the Antiterrorism and Effective Death Penalty 
Act re-designated the remaining paragraphs of section 3563(b), it 
failed to make the corresponding re-designations in 18 U.S.C. 
Sec. 3583(d), regarding discretionary conditions of supervised 
release. While imposition of intermittent confinement as a condition 
of supervised release does not violate the letter of the law as it 
is currently written, imposition of the condition arguably may not 
be consistent with its long-standing intent.''.

    The Commentary to Sec. 5F1.5 captioned ``Background'' is amended in 
the first paragraph by striking ``(b)(6)'' and inserting ``(b)(5)'' 
each place it appears.
    The Commentary to Sec. 5F1.5 captioned ``Background'' is amended by 
striking the last paragraph in its entirety and inserting the 
following:
    ``The appellate review provisions permit a defendant to challenge 
the imposition of a probation condition under 18 U.S.C. Sec. 3563(b)(5) 
if the sentence includes a more limiting condition of probation or 
supervised release than the maximum established in the guideline. See 
18 U.S.C. Sec. 3742(a)(3). The government may appeal if the sentence 
includes a less limiting condition of probation than the minimum 
established in the guideline. 18 U.S.C. Sec. 3742(b)(3).''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to ``18 U.S.C. Sec. 2244'' the following:
``18 U.S.C. Sec. 2245    2A1.1''.
    Section 4B1.4(b)(3)(A) is amended to read as follows:
    ``(3) (A) 34, if the defendant used or possessed the firearm or 
ammunition in connection with a crime of violence or controlled 
substance offense, as defined in Sec. 4B1.2(a) and (b), respectively, 
or if the firearm possessed by the defendant was of a type described in 
26 U.S.C. Sec. 5845(a)*; or''.
    Section 2B1.1 captioned ``Application Notes'' is amended in Note 7 
by striking ``(d)(3)'' and inserting ``(d)(4)''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to ``16 U.S.C. Sec. 1417(a)(5),(6), (b)(2)'' the following:
``16 U.S.C. Sec. 1437(c)    2A2.4'';
by inserting after the line referenced to ``42 U.S.C. Sec. 5157(a)'' 
the following:
``42 U.S.C. Sec. 5410(b)    2N2.1'';
and by inserting after the line referenced to ``42 U.S.C. 
Sec. 9603(d)'' the following:
``42 U.S.C. Sec. 149052    B1.1''.
    Chapter Two, Part G, Subpart 1 is amended in the title by striking 
``Prostitution'' and inserting ``A Commercial Sex Act''.
    Section 2G1.1 is amended in the title by striking ``Prostitution'' 
and inserting ``A Commercial Sex Act''.
    Section 2G1.1 is amended in the guideline, the Commentary captioned 
``Application Notes'', and the Commentary captioned ``Background'' by 
striking ``prostitution'' each place it appears and inserting ``a 
commercial sex act''.
    --Section 2G1.1(b)(1) is amended by striking ``by threats or drugs 
or in any manner''.
    --The Commentary to Sec. 2G1.1 captioned ``Application Notes'' is 
amended in Note 1 by inserting after ``For purposes of this guideline--
'' the following:
    ``Commercial sex act'' has the meaning given that term in 18 U.S.C. 
Sec. 1591(c)(2).''
    The Commentary to Sec. 2G1.1 captioned ``Application Notes'' is 
amended in the first sentence of Note 2 by inserting ``fraud,'' after 
``force,''; and by striking the comma after ``coercion''.
    The Commentary to Sec. 2G1.1 captioned ``Application Notes'' is 
amended in Note 12 by striking ``in either of the following 
circumstances:'' and all that follows through ``more than 10 victims'' 
and inserting ``if the offense involved more than 10 victims''.
[FR Doc. 01-29467 Filed 11-26-01; 8:45 am]
BILLING CODE 2211-01-U