[Federal Register Volume 67, Number 243 (Wednesday, December 18, 2002)]
[Notices]
[Pages 77532-77547]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31869]


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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, including 
public comment regarding retroactive application of any of the proposed 
amendments.

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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. Additional proposed amendments the Commission is considering 
promulgating, as both temporary and permanent amendments, in response 
to the Sarbanes-Oxley Act of 2002, Pub. L. 107-204, and the Bipartisan 
Campaign Reform Act of 2002, Pub. L. 107-55, can be found in the 
November 22, 2002, Federal Register (67 FR 70999).
    The specific amendments proposed in this notice are as follows: (1) 
A proposed amendment and issues for comment that respond to the Uniting 
and Strengthening America by Providing Appropriate Tools Required to 
Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001, Pub. L. 
107-56; the Public Health Security and Bioterrorism Preparedness and 
Response Act of 2002, Pub. L. 107-188; and the Terrorist Bombings 
Convention Implementation Act of 2002, Pub. L. 107-197; (2) a proposed 
amendment that addresses various application issues in Sec.  2L1.2 
(Unlawful Entering or Remaining in the United States); (3) a proposed 
amendment and issue for comment that addresses a number of issues in 
Sec.  5G1.3 (Imposition of a Sentence on a Defendant Subject to an 
Undischarged Term of Imprisonment); (4) a proposed amendment that makes 
technical and conforming changes to various guideline provisions; and 
(5) a proposed amendment and issue for comment regarding appropriate 
guideline penalties for offenses involving involuntary manslaughter.
    In addition to the issues for comment that are contained within 
these proposed amendments, this notice sets forth separate issues for 
comment regarding the following: (1) Section 225 of the Homeland 
Security Act of 2002 (the Cyber Security Enhancement Act of 2002), Pub. 
L. 107-296, which directs the Commission to review and amend, if 
appropriate, the sentencing guidelines and policy statements applicable 
to persons convicted of an offense under section 1030 of title 18, 
United States Code; and (2) sections 11008 and 11009 of the 21st 
Century Department of Justice Appropriations Authorization Act, Pub. L. 
107-273, which direct the Commission to review and amend the sentencing 
guidelines, as appropriate, to provide an appropriate sentencing 
enhancement for any crime of violence or drug trafficking crime in 
which the defendant used body armor and an appropriate enhancement for 
offenses involving influencing, assaulting, resisting, impeding, 
retaliating against, or threatening a federal judge, magistrate judge, 
or any other official described in section 111 or section 115 of title 
18, United States Code.

DATES: Written public comment regarding (1) the amendments set forth in 
this notice, including public comment regarding retroactive application 
of any of these proposed amendments; and (2) the proposed 
repromulgation of the proposed emergency amendments set forth in the 
Federal Register on November 27, 2002 (67 FR 70999) as permanent, non-
emergency amendments, should be received by the Commission not later 
than February 18, 2003.

ADDRESSES: Public comment should be sent to: United States Sentencing 
Commission, One Columbus Circle, NE., Suite 2-500, Washington, DC 
20002-8002, Attention: Public Affairs.

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 courts pursuant to 28 U.S.C. 994(a). The 
Commission also periodically reviews and revises previously promulgated 
guidelines pursuant to 28 U.S.C. 994(o)

[[Page 77533]]

and submits guideline amendments to the Congress not later than the 
first day of May of each year pursuant to 28 U.S.C. 994(p).
    The Commission seeks comment on the proposed amendments, issues for 
comment, and any other aspect of the sentencing guidelines, policy 
statements, and commentary.
    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 on how 
the Commission should respond to those issues.
    Additional information pertaining to the proposed amendments 
described in this notice may be accessed through the Commission's Web 
site at www.ussc.gov.

    Authority: 28 U.S.C. 994(a), (o), (p), (x); USSC rules of 
practice and procedure, rule 4.4.

Diana E. Murphy,
Chair.

1. Terrorism

    Synopsis of Proposed Amendment: This proposed amendment is a 
continuation of the Commission's work over the past two years to ensure 
that the guidelines provide appropriate guideline penalties for 
offenses involving terrorism. Specifically, this proposed amendment 
responds to the Uniting and Strengthening America by Providing 
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA 
PATRIOT Act) Act of 2001, Pub.L. 107-56; the Public Health Security and 
Bioterrorism Preparedness and Response Act of 2002, Pub.L. 107-88; and 
the Terrorist Bombings Convention Implementation Act of 2002, Pub.L. 
107-97.

I. Remaining USA PATRIOT Act Amendments

    The following amendments build on the Commission's response during 
the last amendment cycle to the USA PATRIOT Act.

A. Terrorism Enhancement in Money Laundering Guideline

    This amendment provides two options for treatment of the current 6-
level terrorism enhancement in the money laundering guideline, Sec.  
2S1.1 (Laundering of Monetary Instruments; Engaging in Monetary 
Transactions in Property Derived from Unlawful Activity). Option One 
eliminates the terrorism enhancement. Elimination of the enhancement is 
appropriate because it prevents ``double-counting'' with the terrorism 
adjustment in Sec.  3A1.4 (Terrorism). Specifically, the money 
laundering terrorism enhancement applies if the defendant knew or 
believed that any of the laundered funds were the proceeds of, or were 
intended to promote, an offense involving terrorism. The terrorism 
adjustment at Sec.  3A1.4 applies if the offense is a felony that 
involved, or was intended to promote, a federal crime of terrorism as 
defined in 18 U.S.C. 2332b(g)(5). Therefore, if the money laundering 
terrorism enhancement applied, the terrorism adjustment at Sec.  3A1.4 
also would apply based on the same conduct.
    In the event the Commission determines that the money laundering 
terrorism adjustment should not be eliminated, Option Two provides a 
definition of terrorism in the money laundering guideline that mirrors 
the definition in Sec.  3A1.4.
Proposed Amendment (Part IA):
    [Option One:
    Section Sec.  2S1.1(b)(1)(B)(iii) is amended by striking 
``terrorism,''.]
    [Option Two:
    The Commentary to Sec.  2S1.1 captioned ``Application Notes'' is 
amended in Note 1 by inserting at the end the following new paragraph:
    `` `Terrorism' means a federal crime of terrorism as defined in 18 
U.S.C. 2332b(g)(5).''.]

B. Reference of 18 U.S.C. 1960 to Money Laundering Guideline

    This amendment provides two options for the treatment of certain 
offenses under 18 U.S.C. 1960. These offenses prohibit knowingly 
conducting, controlling, managing, supervising, directing, or owning 
all or part of an unlicensed money transmitting business, as defined in 
18 U.S.C. 1960(b)(1)(C). That provision defines an unlicensed money 
transmitting business as ``a money transmitting business which affects 
interstate or foreign commerce in any manner or degree and otherwise 
involves the transportation or transmission of funds that are known to 
the defendant to have been derived from a criminal offense or are 
intended to be used to promote or support unlawful activity.'' The 
statutory maximum term of imprisonment is 5 years.
    Option One changes the Statutory Index reference for these offenses 
from Sec.  2S1.3 (Structuring Transactions to Evade Reporting 
Requirements) to the main money laundering guideline, Sec.  2S1.1. This 
change is appropriate for this offense because its essence is money 
laundering rather than structuring to evade reporting requirements.
    In contrast, other offenses under 18 U.S.C. 1960 would remain in 
the structuring guideline under Option One because they are essentially 
structuring offenses. Specifically, they prohibit knowingly conducting, 
controlling, managing, supervising, directing, or owning all or part of 
an unlicensed money transmitting business, as defined in 18 U.S.C. 
1960(b)(1)(A) and (B). Those provisions define an unlicensed money 
transmitting business as ``a money transmitting business which affects 
interstate or foreign commerce in any manner or degree and (A) is 
operated without an appropriate money transmitting license * * *; or 
(B) fails to comply with the money transmitting business registration 
requirements under section 5330 of title 31, United States Code, or 
regulations prescribed under such section.''
    Option Two maintains the initial Statutory Index reference for 18 
U.S.C. 1960(b)(1)(C) offenses in the structuring guideline but provides 
a cross reference to the main money laundering guideline for conduct 
that falls under 18 U.S.C. 1960(b)(1)(C).
    An issue for comment requests comment regarding whether the 
proposed cross reference should be broadened so that any structuring 
offense that involves the intent to promote unlawful activity, 
knowledge or belief that the funds were the proceeds of unlawful 
activity, or reckless disregard of the illicit source of the funds 
would be cross referenced to main money laundering guideline, leaving 
the structuring guideline to cover purely regulatory offenses.
Proposed Amendment (Part IB):
    [Option One:
    The Commentary to Sec.  2S1.1 captioned ``Statutory Provisions'' is 
amended by inserting ``, 1960 (but only with respect to unlicensed 
money transmitting businesses as defined in 18 U.S.C. 1960(b)(1)(C))'' 
after ``1957''.

[[Page 77534]]

    The Commentary to Sec.  2S1.3 captioned ``Statutory Provisions'' is 
amended by inserting ``(but only with respect to unlicensed money 
transmitting businesses as defined in 18 U.S.C. 1960(b)(1)(A) and 
(B))'' after ``1960''.
    Appendix A (Statutory Index) is amended in the line referenced to 
18 U.S.C. 1960 by inserting ``2S1.1,'' before ``2S1.3''.]
    [Option Two:
    Section 2S1.3(c) is amended by striking ``Reference'' and inserting 
``References''; and by adding at the end the following:
    ``(2) If the offense involved (A) a money transmitting business; 
and (B) the transportation or transmission of funds that are known to 
the defendant to have been derived from a criminal offense or are 
intended to be used to promote or support unlawful activity, apply 
Sec.  2S1.1 (Laundering of Monetary Instruments; Engaging in Monetary 
Transactions in Property Derived from Unlawful Activity).''.
    The Commentary to Sec.  2S1.3 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``4. Cross Reference in Subsection (c)(2).--For purposes of 
subsection (c)(2), `money transmitting business' means a money 
transmitting business that affects interstate or foreign commerce. 
`Money transmitting' includes transferring funds on behalf of the 
public by any means, including transfers within the United States or to 
foreign locations by wire, check, draft, facsimile, or courier.''.]
    Issue for Comment: The proposed amendment provides two options for 
the treatment of offenses under 18 U.S.C. 1960(b)(1)(C). Option One 
provides for a Statutory Index reference for these offenses to the main 
money laundering guideline, Sec.  2S1.1, rather than the structuring 
guideline, Sec.  2S1.3, because such an offense is essentially a money 
laundering offense. Option Two references this offense to Sec.  2S1.3 
in the first instance but provides a cross reference for this offense 
from Sec.  2S1.3 to Sec.  2S1.1.
    The Commission requests comment regarding whether the proposed 
cross reference to Sec.  2S1.1 in Option Two should be expanded to 
cover any offense initially referenced to Sec.  2S1.3 in the Statutory 
Index that involved the intent to promote unlawful activity, knowledge 
or belief that the funds were the proceeds of unlawful activity, or 
reckless disregard of the illicit source of the funds. Such an approach 
effectively would limit the application of Sec.  2S1.3 to regulatory 
offenses (such as the failure to file transaction reports or 
structuring transactions to evade reporting requirements) unaccompanied 
by aggravated, real offense money laundering conduct. To effectuate 
such cross reference, Sec.  2S1.3 would likely need to be amended as 
follows: First, the base offense level of 8 in subsection (a)(1) would 
be maintained for offenses under 31 U.S.C. 5318 and 5318A, but the 
alternative base offense level in subsection (a)(2) would be amended to 
level 6 without any increase from the loss table in Sec.  2B1.1. An 
alternative base offense level of level 6 for a regulatory offense 
unaccompanied by aggravated conduct is proportionate to other 
regulatory offenses under the guidelines. Second, the aggravated 
conduct described in Sec.  2S1.3(b)(1) and the aggravated conduct the 
absence of which is described in Sec.  2S1.3(b)(3) would form the basis 
for the new cross reference. Accordingly, the cross reference to the 
main money laundering guideline would apply if: (1) The defendant knew 
or believed that the funds were the proceeds of unlawful activity or 
were intended to promote unlawful activity; [(2) the offense involved 
bulk cash smuggling;] or (3) the defendant acted with reckless 
disregard for the illegal source of the funds. The major possible 
effects of cross referencing offenses involving real offense money 
laundering conduct to the money laundering guideline are application of 
the six-level enhancement in Sec.  2S1.1(b)(1) if the defendant knew or 
believed that the funds were the proceeds of or were intended to 
promote certain specified crimes, and application of the enhancement in 
Sec.  2S1.1(b)(3) for sophisticated laundering.

C. Enhancement in Accessory After the Fact Guideline for Harboring 
Terrorists

    Currently in Sec.  2X3.1 (Accessory After the Fact) there exists an 
offense level ``cap'' of level 20 for offenses in which the conduct is 
limited to harboring a fugitive (and an offense level ``cap'' of level 
30 for all other offenses sentenced under the accessory guideline). 
This proposed amendment makes the lower offense level ``cap'' of level 
20 inapplicable to offenses involving the harboring of terrorists 
because of the relative seriousness of those offenses.
    Last year, the Commission promulgated an amendment that referenced 
18 U.S.C. 2339 and 2339A to 2X2.1 (Aiding and Abetting) and 2X3.1 
(Accessory After the Fact). The offense at 18 U.S.C. 2339 prohibits 
harboring or concealing any person who the defendant knows, or has 
reasonable grounds to believe, has committed or is about to commit one 
of several enumerated offenses. The maximum term of imprisonment is 10 
years. The offense at 18 U.S.C. 2339A prohibits the provision of 
material support or resources to terrorists, knowing or intending that 
they will be used in the preparation for, or in carrying out, specified 
crimes (i.e., those designated as predicate offenses for ``federal 
crimes of terrorism'') or in preparation for, or in carrying out, the 
concealment or an escape from the commission of any such violation. The 
maximum term of imprisonment is 15 years. In contrast, a violation of 
the general harboring statute, 18 U.S.C. 1071, has a maximum term of 
imprisonment of 5 years.
    For consistency and proportionality, the proposed amendment not 
only makes the ``cap'' of level 20 inapplicable to harboring a person 
who is convicted under 18 U.S.C. 2339 or 2339A but also to the conduct 
of harboring an individual who commits a terrorism offense, i.e., one 
of the offenses listed in 18 U.S.C. 2339 or 2339A or an offense 
involving or intending to promote a federal crime of terrorism, as 
defined in 18 U.S.C. 2332b(g)(5).
Proposed Amendment (Part IC):
    Section 2X3.1 is amended by striking subsection (a) and inserting 
the following:
    ``(a) Base Offense Level:
    (1) Six levels lower than the offense level for the underlying 
offense, except as provided in subdivisions (2) and (3).
    (2) The base offense level under this guideline shall be not less 
than level 4.
    (3)(A) The base offense level under this guideline shall be not 
more than level 30, except as provided in subdivision (B).
    (B) In any case in which the conduct is limited to harboring a 
fugitive, other than a case described in subdivision (C), the base 
offense level under this guideline shall not be more than level 20.
    (C) The limitation in subdivision (B) shall not apply in any case 
in which (i) the defendant is convicted under 18 U.S.C. 2339 or 2339A; 
or (ii) the conduct involved (I) harboring a person who committed any 
offense listed in 18 U.S.C. 2339 or 2339A or who committed any offense 
involving or intending to promote a federal crime of terrorism, as 
defined in 18 U.S.C. 2332b(g)(5); or (II) obstructing the investigation 
of, or committing perjury with respect to, any offense described in 
subdivision (I). In such a case, the base offense level under this 
guideline shall be not more than level 30, as provided in subdivision 
(A).''.

[[Page 77535]]

II. Amendments Required by the Public Health Security and Bioterrorism 
Preparedness and Response Act of 2002

    The following amendments to the guidelines are proposed in response 
to the Public Health Security and Bioterrorism Preparedness and 
Response Act of 2002, Pub. L. 107-188.

A. Biological AGents and Toxins

    First, the proposed amendment amends the Statutory Index to refer 
new offenses involving biological agents and toxins to the guideline 
covering nuclear, biological, and chemical weapons and materials, Sec.  
2M6.1. Specifically, the Public Health Security and Bioterrorism 
Preparedness and Response Act of 2002 amends 18 U.S.C. 175b to 
redesignate the existing offense and create new offenses as follows:
    (1) The existing offense, redesignated at 18 U.S.C. 175b(a)(1), 
prohibits any restricted person (as defined in subsection (b)) from 
transporting, receiving, or possessing any biological agent or toxin 
that the Secretary of Health and Human Services has listed under 
regulations as a ``select agent''. The maximum term of imprisonment is 
10 years. During the last amendment cycle, the Commission referred this 
offense to Sec.  2M6.1 and provided an alternative base offense level 
of level 22.
    (2) Two new offenses, at 18 U.S.C. 175b(b)(1) and (2), prohibit a 
person from transferring a select agent listed in regulations by the 
Secretary of Health and Human Services, or a biological agent or toxin 
listed in regulations by the Secretary of Agriculture as posing a 
severe threat to animal or plant health or products, to any person the 
transferor knows or has reason to believe is not registered to receive 
or possess such agent or toxin, as required under regulations 
prescribed by the pertinent Secretary. The maximum term of imprisonment 
is 5 years.
    (3) Two new offenses, at 18 U.S.C. 175b(c)(1) and (2), prohibit any 
person from knowingly possessing a select agent listed in regulations 
by the Secretary of Health and Human Services, or a biological agent or 
toxin listed in regulations by the Secretary of Agriculture as posing a 
severe threat to animal or plant health or products, if that person has 
not registered to receive or possess such agent or toxin, as required 
under regulations prescribed by the pertinent Secretary. The maximum 
term of imprisonment is 5 years.
    Like the existing offense at 18 U.S.C. 175b(a)(1), reference of the 
new offenses to Sec.  2M6.1 is appropriate. (An amendment to the 
statutory index is not necessary because there already exists a 
reference to Sec.  2M6.1 for section 175b offenses.)
    Second, the proposed amendment provides for a base offense level of 
level 22 for the new offenses involving transfer to, or possession of, 
select biological agents by unregistered persons. This proposed base 
offense level is the same as the existing base offense level for 
offenses involving transfer to, or possession of, select biological 
agents by restricted persons. The proposed amendment exempts these 
offenses from application of Sec.  2M6.1(b)(1), which provides a two 
level enhancement for offenses involving select agents, because that 
factor is incorporated into the proposed base offense levels.
    Third, in response to Act, the proposed amendment makes two 
modifications to the definition of ``select biological agent'' in Sec.  
2M6.1. That definition exists in the guideline for purposes of the two 
level enhancement in Sec.  2M6.1(b)(1) for offenses that involved such 
an agent. First, in response to section 212 of the Public Health 
Security and Bioterrorism Preparedness and Response Act of 2002, the 
amendment proposes to expand the definition of ``select biological 
agent'' to include biological agents and toxins the Secretary of 
Agriculture has determined pose a severe threat to animal and plant 
health and products. Second, section 201 of the Act codified a number 
of provisions of the Antiterrorism and Effective Death Penalty Act of 
1996 in the Public Health Service Act. This codification necessitates a 
conforming amendment to the definition of ``select agent'' in 
Application Note 1 of Sec.  2M6.1.
Proposed Amendment (Part IIA)
    Section 2M6.1(a)(2) is amended by inserting ``and'' after 
``(a)(3),''; and by striking ``, and (a)(5)''.
    Section 2M6.1(a)(3) is amended by inserting ``or'' after the 
semicolon.
    Section 2M6.1(a)(4) is amended by inserting ``(A)'' after ``if''; 
and by inserting ``(B) the offense (i) involved a threat to use a 
nuclear weapon, nuclear material, or nuclear byproduct material, a 
chemical weapon, a biological agent, toxin, or delivery system, or a 
weapon of mass destruction; but (ii) did not involve any conduct 
evidencing an intent or ability to carry out the threat.'' after 
``or''.
    Section 2M6.1(a) is amended by striking subdivision (5).
    Section 2M6.1(b)(1) is amended by striking the comma after 
``(a)(2)'' and inserting ``or''; and by striking ``, or (a)(5)''.
    Section 2M6.1(b)(2) is amended by inserting ``(A)'' after 
``(a)(4)''.
    Section 2M6.1(b)(3) is amended by inserting ``or'' after 
``(a)(3),'' and by striking ``, or (a)(5)''.
    The Commentary to Sec.  2M6.1 captioned ``Application Notes'' is 
amended in Note 1 in the paragraph that begins ``Select biological 
agent'' by inserting ``(A)'' after ``identified''; by inserting ``and 
maintained'' after ``established''; and by striking ``511(d) of the 
Antiterrorism and Effective Death Penalty Act, Pub. L. 104-132. See 42 
CFR part 72'' and inserting ``351A of the Public Health Service Act (42 
U.S.C. 262a); or (B) by the Secretary of Agriculture on the list 
established and maintained pursuant to section 212 of the Agricultural 
Bioterrorism Protection Act of 2002 (7 U.S.C. 8401)''.
    The Commentary to Sec.  2M6.1 captioned ``Application Notes'' is 
amended in Note 2 by striking ``(a)(3)'' each place it appears and 
inserting ``(a)(4)(B)''.

B. Safe Drinking Water Provisions

    This proposed amendment responds to amendments to the Safe Drinking 
Water Act made by section 403 of the Public Health Security and 
Bioterrorism Preparedness and Response of 2002. Section 1432(a) of the 
Safe Drinking Water Act (42 U.S.C. 300i-1(a)) prohibits any person from 
tampering with a public water system. The statutory maximum penalty was 
increased from 5 years imprisonment to 20 years imprisonment. This 
offense is the only offense referenced to Sec.  2Q1.4 (Tampering or 
Attempted Tampering with Public Water System). Section 1432(b) of such 
Act (42 U.S.C. 300i-1(b)) prohibits anyone from attempting or 
threatening to tamper with a public water system. The statutory maximum 
penalty was increased from 3 years imprisonment to 10 years 
imprisonment. This offense is the only offense referenced to Sec.  
2Q1.5 (Threatened Tampering with Public Water System). For purposes of 
both offenses, ``tamper'' means ``to introduce a contaminant into a 
public water system with the intention of harming persons'' or ``to 
otherwise interfere with the operation of a public water system with 
the intention of harming persons''.
    First, the amendment proposes to consolidate the guidelines 
covering tampering with consumer products, Sec.  2N1.1, and tampering 
with a public water system, Sec.  2Q1.4, and to consolidate the 
guidelines covering threatened tampering with consumer products, Sec.  
2N1.2, and threatened tampering with a public water system, Sec.  
2Q1.5. Consolidation is proposed

[[Page 77536]]

because of the infrequency of occurrence of these offenses and because 
these guidelines cover very similar conduct; accordingly, the treatment 
of these offenses under the same guideline would promote 
proportionality in punishment. The substantive changes resulting from 
the proposed consolidation would include (1) increased base offense 
levels for public water system offenses, as discussed in the following 
paragraph; (2) application to consumer product cases of an existing 
enhancement in the public water system guidelines if the offense 
involved substantial disruption of governmental functions or 
substantial expenditure of funds to respond to the offense; (3) 
elimination of the existing enhancement in the public water system 
guideline for ongoing, continuous, or repetitive release of a 
contaminant into the water supply (elimination is proposed because of 
definitional difficulties); (4) replacement of the existing enhancement 
in the public water system guideline if the purpose of the offense was 
to influence government action or to extort money with an application 
note inviting an upward departure if a terrorist motive was present and 
a cross reference to the extortion guideline if the offense involved 
extortion; and (5) application to public water system offenses of an 
existing cross reference in the consumer products guideline to the 
murder guidelines if death resulted. Conforming changes are made to the 
Statutory Index.
    An issue for comment follows regarding whether the proposed 
consolidations also should effectuate a consolidation of the tampering 
guidelines with the threatened tampering guidelines, similar to the 
manner in which offenses involving threats to use nuclear, biological, 
or chemical weapons are subsumed within the nuclear, biological and 
chemical guideline, Sec.  2M6.1.
    Second, the amendment proposes to increase the base offense level 
for offenses involving tampering and threatened tampering with a public 
water system. Under the proposed consolidation, the base offense level 
for tampering with a public water system would increase from level 18 
to level 25, and the six level enhancement for the risk of death or 
serious bodily injury would be eliminated and replaced with a graduated 
enhancement for actual bodily injury. Likewise, the base offense level 
for threatening to tamper with a public water system is proposed to 
increase from level 10 to level 16. For point of comparison, the 
existing base offense level for threatening communications under Sec.  
2A6.1 is level 12 and for threatened use of nuclear, biological, and 
chemical weapons under Sec.  2M6.1 is level 20. These substantial 
increases in the base offense levels are proposed to ensure 
proportionality with similar offenses and to respond to the increased 
statutory maximum penalties made by section 403 of the Public Health 
Security and Bioterrorism Preparedness and Response of 2002.
    Third, the amendment proposes to provide an application note in the 
consolidated guideline that an upward departure (as provided in 
Application Note 4 of the terrorism adjustment in Sec.  3A1.4 
(Terrorism)) may be warranted if the tampering or threatened tampering 
was accompanied by a terrorist motive. The amendments to the Safe 
Drinking Water Act made by the Public Health Security and Bioterrorism 
Preparedness and Response of 2002 contemplated that terrorism may be 
the motive behind tampering with the public water supply. Section 1431 
of the Safe Drinking Water Act (42 U.S.C. 300i-1) was amended to expand 
the authority of the Administrator of the Environmental Protection 
Agency to take emergency action to protect the public health if the 
Administrator determines that ``there is a threatened or potential 
terrorist attack or other intentional act designed to disrupt the 
provision of safe drinking water or to impact adversely the safety of 
drinking water supplied to communities and individuals, which may 
present an imminent and substantial endangerment'' to the public 
health. Terrorist motives similarly may be present in offenses 
involving tampering with consumer products.
    One other criminal provision was added by the Act, but it may be 
appropriate not to list this provision in the Statutory Index at this 
time. Section 401 of the Public Health Security and Bioterrorism 
Preparedness and Response of 2002 added section 1433 to the Safe 
Drinking Water Act. This provision requires local communities to 
conduct assessments of the vulnerability of their public water systems 
to terrorist and other intentional acts. Section 1433(a)(6) of the Safe 
Drinking Water Act (42 U.S.C. 300i-2(a)(6)) provides that any person 
who acquires information from this assessment and knowingly or 
recklessly reveals such information to a person other than to specified 
persons authorized to receive such information shall be imprisoned for 
not more than one year and/or fined in accordance with the fines 
applicable to Class A misdemeanors. This provision does not provide a 
neat fit within the guidelines. Most of the environmental regulatory 
guidelines cover the failure to report information or the falsification 
of information, rather than the reckless disclosure of information. 
Rather than provide a Statutory Index reference at this point, it may 
be best to assess over the next few years the frequency of prosecution 
of this offense and what conduct typically occurs in connection with 
the offense.
Proposed Amendment (Part IIB)
    Chapter two, part N is amended in the heading by inserting ``Public 
Water Systems,'' after ``Involving''.
    Chapter two, part N, subpart 1 is amended in the heading by 
inserting ``Or Public Water Systems'' after ``Products''.
    Section 2N1.1 is amended in the heading by inserting ``with 
Consumer
    Products'' after ``Tampering''; by inserting ``with Consumer 
Products'' after ``Tamper''; and by adding ``; Tampering or Attempting 
to Tamper with a Public Water System'' after ``Injury''.
    Section 2N1.1(b) is amended by striking ``Characteristic'' and 
inserting ``Characteristics''; and by adding at the end the following:
    ``(2) If the offense resulted in (A) substantial disruption of 
public, governmental, or business functions or services; or (B) a 
substantial expenditure of funds to clean up, decontaminate, or 
otherwise respond to the offense, increase by 4 levels.''.
    The Commentary to Sec.  2N1.1 captioned ``Statutory Provisions'' is 
amended by inserting ``; 42 U.S.C. 300i-1'' after ``(e)''.
    The Commentary to Sec.  2N1.1 captioned ``Application Notes'' is 
amended by striking Notes 1 and 2 and inserting the following:
    ``1. Application of Special Instruction.--Subsection (d) applies in 
any case in which the defendant is convicted of a single count 
involving (A) the death or permanent, life-threatening, or serious 
bodily injury of more than one victim; or (B) conduct tantamount to the 
attempted murder of more than one victim, regardless of whether the 
offense level is determined under this guideline or under another 
guideline in Chapter Two (Offense Conduct) by use of a cross reference 
under subsection (c).
    2. Departure Provisions.--
    (A) Downward Departure Provision.--The base offense level reflects 
that offenses covered by this guideline typically pose a risk of death 
or serious bodily injury to one or more victims; or cause, or are 
intended to cause, bodily injury. In the unusual case in which the 
offense did not cause a risk of death or serious bodily injury, and 
neither

[[Page 77537]]

caused nor was intended to cause bodily injury, a downward departure 
may be warranted.
    (B) Upward Departure Provisions.--If the offense posed a 
substantial risk of death or serious bodily injury to numerous victims, 
caused extreme psychological injury, or caused substantial property 
damage or monetary loss, an upward departure may be warranted.
    If the offense was calculated to influence or affect the conduct of 
government by intimidation or coercion, or to retaliate against 
government conduct, an upward departure may be warranted. See 
Application Note 4 of Sec.  3A1.4 (Terrorism).''.
    Section 2N1.2 is amended in the heading by adding at the end ``; 
Threatening to Tamper with a Public Water System''.
    Section 2N1.2 is amended by redesignating subsection (b) as 
subsection (c); and by inserting after subsection (a) the following:
    ``(b) Specific Offense Characteristic
    (1) If the offense resulted in (A) substantial disruption of 
public, governmental, or business functions or services; or (B) a 
substantial expenditure of funds to clean up, decontaminate, or 
otherwise respond to the offense, increase by 4 levels.''.
    The Commentary to Sec.  2N1.2 captioned ``Statutory Provisions'' is 
amended by inserting ``; 42 U.S.C. 300i-1'' after ``(d)''.
    The Commentary to Sec.  2N1.2 captioned ``Application Note'' is 
amended in Note 1 by inserting ``Upward Departure Provisions.--'' 
before ``If''; and by adding at the end the following paragraph:
    ``If the offense was calculated to influence or affect the conduct 
of government by intimidation or coercion, or to retaliate against 
government conduct, an upward departure may be warranted. See 
Application Note 4 of Sec.  3A1.4 (Terrorism).''.
    Chapter two, part Q is amended by striking Sec. Sec.  2Q1.4 and 
2Q1.5 in their entirety.
    Appendix A (Statutory Index) is amended in the line referenced to 
42 U.S.C. 300i-1 by striking ``2Q1.4, 2Q1.5'' and inserting ``2N1.1, 
2N1.2''.
    Issue for Comment: For the reasons stated in the foregoing 
synopsis, this amendment proposes to consolidate the guidelines 
covering tampering with consumer products, Sec.  2N1.1, and tampering 
with a public water system, Sec.  2Q1.4, and to consolidate the 
guidelines covering threatened tampering with consumer products, Sec.  
2N1.2, and threatened tampering with a public water system, Sec.  
2Q1.5. The Commission requests comment regarding whether the Commission 
should effectuate the consolidation of these four guidelines into one 
guideline covering both tampering and threatened tampering cases. Such 
an approach would be consistent with the guideline covering nuclear, 
biological, and chemical weapons and materials, Sec.  2M61, which 
covers both offenses involving such weapons and materials as well as 
offenses involving the threatened use of such weapons and materials.

C. Animal Enterprise Terrorism

    This proposed amendment adds an invited upward departure provision 
in the fraud, theft, and property destruction guideline, Sec.  2B1.1, 
to account for aggravating conduct that may occur in connection with an 
animal enterprise offense under 18 U.S.C. 43.
    Specifically, section 336 of the Public Health Security and 
Bioterrorism Preparedness and Response Act of 2002 increased the 
penalty provisions of 18 U.S.C. 43, which makes it an offense to travel 
in interstate or foreign commerce, or to use or cause to be used the 
mail or any facility in interstate or foreign commerce for the purpose 
of causing physical disruption to the functioning of an animal 
enterprise, and to intentionally damage or cause the loss of any 
property (including animals and records) used by the animal enterprise, 
or to conspire to do so.
    Before amendment by the Act, the penalty structure was (1) not more 
than one year imprisonment for causing economic damage exceeding 
$10,000; (2) not more than 10 years' imprisonment for causing serious 
bodily injury in the course of such an offense; and (3) life or any 
term of years of imprisonment if death resulted. As a result of the 
Act, the penalty structure now is (1) not more than 6 months 
imprisonment for causing economic damage not exceeding $10,000 (18 
U.S.C. 43(b)(1)); (2) not more than 3 years' imprisonment for causing 
economic damage exceeding $10,000 (18 U.S.C. 43(b)(2)); (3) not more 
than 20 years' imprisonment for causing serious bodily injury in the 
course of such an offense (18 U.S.C. 43(b)(3)); and (4) life or any 
term of years of imprisonment if death resulted (18 U.S.C. 43(b)(4)).
    This offense currently is referenced only to Sec.  2B1.1. While 
reference only to that guideline generally continues to be appropriate 
for violations under 18 U.S.C. 43, that guideline fails to account for 
aggravated situations in which serious bodily injury or death results. 
Although the property damage guideline contains an enhancement for the 
risk of serious bodily injury or death, there is no enhancement or 
cross reference in that guideline that would provide a higher offense 
level if actual serious bodily injury or death resulted. Given the 
highly unusual occurrence of death or serious bodily injury in property 
damage cases generally and the infrequency of these specific offenses, 
the proposed amendment adds an invited upward departure provision in 
Application Note 15(A)(ii) of Sec.  2B1.1 if death or serious bodily 
injury occurs in an offense under 18 U.S.C. 43, or if substantial or 
significant scientific information or research is lost as part of such 
an offense.
Proposed Amendment (Part IIC)
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in subdivision (A)(ii) of Note 15 by adding at the end the 
following:
    ``An upward departure would be warranted, for example, in a case 
involving animal enterprise terrorism under 18 U.S.C. 43, if, in the 
course of the offense, serious bodily injury or death resulted, or 
substantial scientific research or information were destroyed.''.

III. Amendments Required by the Terrorist Bombings

Convention Implementation Act of 2002

    The proposed amendment amends the Statutory Index (and the 
Statutory Provisions of the pertinent chapter two guidelines) to add 
three new offenses created by the Terrorist Bombings Convention 
Implementation Act of 2002, Pub. L. 107-197, and provides conforming 
amendments within a number of chapter two guidelines to more fully 
incorporate the new offenses into the offense guidelines.
    First, section 102 of the Act created a new offense at 18 U.S.C. 
2332f, which provides in subsection (a) that ``whoever unlawfully 
delivers, places, discharges, or detonates an explosive or other lethal 
device in, into, or against a place of public use, a state or 
government facility, a public transportation system, or an 
infrastructure facility (A) with the intent to cause death or serious 
bodily injury, or (B) with the intent to cause extensive destruction of 
such a place, facility, or system, where such destruction results in or 
is likely to result in major economic loss'' and in subsection (b) that 
``whoever attempts or conspires to commit [such] an offense'' shall be 
punished as provided under 18 U.S.C. 2332a(a). Section 2332a offenses 
currently are referenced to Sec. Sec.  2K1.4 (the arson and property 
damage by use of explosives guideline) and 2M6.1 (the

[[Page 77538]]

guideline covering nuclear, biological, and chemical weapons). The 
proposed amendment refers this new offense to those guidelines as well. 
In addition, the proposed amendment amends the alternative base offense 
levels in the arson guideline Sec.  2K1.4(a)(1) so that the base 
offense level of level 24 applies to targets of 18 U.S.C. 2332f 
offenses, namely, state or government facilities, infrastructure 
facilities, public transportation systems and ``places of public use''.
    Second, section 202 of the Act created a new offense at 18 U.S.C. 
2339C, which provides in subsection (a)(1) that ``whoever, in a 
circumstance described in subsection (c) (i.e., in the United States or 
outside of the United States by a national of the United States or an 
entity organized under the laws of the United States), by any means 
directly or indirectly, unlawfully and willfully provides or collects 
funds, with the intention that such funds be used, or with the 
knowledge that such funds are to be used, in full or in part, in order 
to carry out (A) an act which constitutes an offense, within the scope 
of certain international treaties, as implemented by the United States, 
or (B) any other act intended to cause death or serious bodily injury 
to a civilian, or to any person not taking an active part in the 
hostilities in a situation of armed conflict, when the purpose of such 
act, by its nature or context, is to intimidate a population, or to 
compel a government or an international organization to do or abstain 
from doing an act'', and in subsection (b) that whoever attempts or 
conspires to commit such an offense, shall be punished for a maximum 
term of imprisonment of 20 years.
    The proposed amendment refers the new offense at 18 U.S.C. 
2339C(1)(A) to 2X2.1 (Aiding and Abetting). The new offense involves 
providing or collecting funds knowing or intending that the funds would 
be used to carry out any of a number of specified offenses. 
Accordingly, the proposed amendment treats these offenses in the same 
manner as 18 U.S.C. 2339A offenses, which aid and abet a predicate 
offense listed in the statute. An amendment is proposed to be made in 
Sec.  2X2.1 to conform the definition of the ``underlying offense'' 
that is aided and abetted.
    The proposed amendment refers the new offense at 18 U.S.C. 
2339C(a)(1)(B) to 2M5.3 (Providing Material Support or Resources to 
Designated Foreign Terrorist Organizations). Reference to Sec.  2M5.3 
is appropriate because this offense involves generally providing or 
collecting funds knowing or intending that the funds would be used to 
carry out not a specified offense but rather an act which by its nature 
is a terrorist act (because it is meant to intimidate a civilian 
population or to compel a government or international organization to 
do something or to refrain from doing something). Therefore, the 
essence of the offense is the provision of material support to 
terrorists, which is appropriately referenced to Sec.  2M5.3. The 
proposed amendment expands Sec.  2M5.3 to include not only designated 
foreign terrorist organizations but other terrorists as well.
    Third, 18 U.S.C. 2339C(c)(2) makes it unlawful in the United 
States, or outside the United States by a national of the United States 
or an entity organized under the laws of the United States, to 
knowingly conceal or disguise the nature, location, source, ownership, 
or control of any material support, resources, or funds knowing or 
intending that they were: (A) Provided in violation of 18 U.S.C. 2339B, 
or (B) provided or collected in violation of 18 U.S.C. 2339C(a)(1) or 
(2). The maximum term of imprisonment for a violation of subsection 18 
U.S.C. 2339C(c) is 10 years.
    The proposed amendment references offenses under 18 U.S.C. 
2339C(c)(2)(A) to 2X3.1 (Accessory After the Fact), since the essence 
of such an offense is the concealment of resources that were known or 
intended to have been provided in violation of another substantive 
offense, namely, 18 U.S.C. 2339B. An amendment is proposed to be made 
in Sec.  2X3.1 to conform the definition of the ``underlying offense'' 
to which the defendant is an accessory.
    The proposed amendment references offenses under 18 U.S.C. 
2339C(c)(2)(B) to 2M5.3 and 2X3.1. To the extent the offense involved 
knowingly concealing or disguising the nature, location, source, 
ownership, or control of any material support, resources, or funds 
knowing or intending that they were provided or collected in violation 
of 18 U.S.C. 2339C(a)(1), the offense should be sentenced under 2X3.1. 
This is because the concealment occurs with respect to material support 
the defendant knows is to be used, in full or in part, in order to 
carry out an act which constitutes any number of specified offenses. To 
the extent the offense involved knowingly concealing or disguising the 
nature, location, source, ownership, or control of any material 
support, resources, or funds knowing or intending that they were 
provided or collected in violation of 18 U.S.C. 2339C(a)(2), the 
offense should be sentenced under 2M5.3. This is because the 
concealment occurs with respect to material support the defendant knows 
is to be used, in full or in part, in order to carry out not a 
specified offense but rather an act which by its nature is a terrorist 
act (because it is meant to intimidate a civilian population or to 
compel a government or international organization to do something or to 
refrain from doing something). A conforming amendment is proposed to be 
added to the Statutory Provisions of Sec. Sec.  2M5.3 and 2X3.1.
Proposed Amendment (Part III)
    Section 2K1.4(a)(1)(B) is amended by striking ``or a ferry'' and 
inserting ``a ferry, a public transportation system, a state or 
government facility, an infrastructure facility, or a place of public 
use''.
    Section 2K1.4(a) is amended by striking subdivision (2) and 
inserting the following:
    ``(2) 20, if the offense (A) created a substantial risk of death or 
serious bodily injury to any person other than a participant in the 
offense; (B) involved the destruction or attempted destruction of a 
structure other than (i) a dwelling, or (ii) an airport, an aircraft, a 
mass transportation facility, a mass transportation vehicle, a ferry, a 
public transportation system, a state or government facility, an 
infrastructure facility, or a place of public use; or (C) endangered 
(i) a dwelling, (ii) a structure other than a dwelling, or (iii) an 
airport, an aircraft, a mass transportation facility, a mass 
transportation vehicle, a ferry, a public transportation system, a 
state or government facility, an infrastructure facility, or a place of 
public use; or''.
    The Commentary to Sec.  2K1.4 captioned ``Statutory Provisions'' is 
amended by inserting ``, 2332f'' after ``2332a''.
    The Commentary to Sec.  2K1.4 captioned ``Application Notes'' is 
amended in Note 1 by adding at the end the following new paragraph:
    `` `State or government facility', `infrastructure facility', 
`place of public use', and `public transportation system' have the 
meaning given those terms in 18 U.S.C. 2332f(e)(3), (5), (6), and (7), 
respectively.''.
    Section 2M5.3 is amended in the heading by adding ``or For a 
Terrorist Purpose'' after ``Organizations''.
    The Commentary to Sec.  2M5.3 captioned ``Statutory Provisions'' is 
amended by inserting ``, 2339C(a)(1)(B), (c)(2)(B) (but only with 
respect to funds known or intended to have been provided or collected 
in violation of 18 U.S.C. 2339C(a)(1)(B))'' after ``2339B''.
    The Commentary to Sec.  2X2.1 captioned ``Statutory Provisions'' is 
amended by inserting ``, 2339C(a)(1)(A)'' after ``2339A''.

[[Page 77539]]

    The Commentary to Sec.  2X2.1 captioned ``Application Note'' is 
amended in Note 1 by inserting ``or 2339C(a)(1)(A)'' after ``2339A''; 
and by inserting ``or provided or collected funds for'' after 
``supported''.
    The Commentary to Sec.  2X3.1 captioned ``Statutory Provisions'' is 
amended by inserting ``, 2339C(c)(2)(A), (c)(2)(B) (but only with 
respect to funds known or intended to have been provided or collected 
in violation of 18 U.S.C. 2339C(a)(1)(A))'' after ``2339A''.
    The Commentary to Sec.  2X3.1 captioned ``Application Notes'' is 
amended in Note 1 by inserting ``, or in the case of a violation of 18 
U.S.C. 2339C(c)(2)(A), `underlying offense' means the violation of 18 
U.S.C. 2339B with respect to which the material support, resources, or 
funds were concealed or disguised'' after ``offense)''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. 2332d the following new line:
    ``18 U.S.C. 2332f 2K1.4, 2M6.1''; and
    by inserting after the line referenced to 18 U.S.C. 2339B the 
following new lines:
    ``18 U.S.C. 2339C(a)(1)(A) 2X2.1
    18 U.S.C. 2339C(a)(1)(B) 2M5.3
    18 U.S.C. 2339C(c)(2)(A) 2X3.1
    18 U.S.C. 2339C(c)(2)(B) 2M5.3, 2X3.1''.

IV. Miscellaneous Amendments

    The proposed amendment amends Sec.  2K1.3 to add an additional base 
offense level of 18 for certain offenses committed under 18 U.S.C. 
842(p)(2). Section 842(p)(2) criminalizes knowingly or intentionally 
facilitating Federal crimes of violence by teaching or demonstrating 
the making or use of an explosive, destructive device, or weapon of 
mass destruction. It also criminalizes the distribution ``by any means 
information pertaining to, in whole or in part, the manufacture or use 
of an explosive, destructive, device, or weapon of mass destruction'' 
with the intent or knowing that the teaching, demonstration, or 
information will be used for or in furtherance of, an activity that 
constitutes a Federal crime of violence. The statutory maximum term of 
imprisonment is 20 years.
    The statute is referenced in the Statutory Index to Sec. Sec.  
2K1.3 (covering prohibited transactions involving explosive materials) 
and 2M6.1 (covering weapons of mass destruction). The applicable base 
offense levels at Sec.  2M6.1 are levels 42 and 28. The applicable 
offense level at Sec.  2K1.3 currently is base offense level 12. 
Section 2K1.3 has alternative base offense levels predicated upon 
recidivism. An alternative base offense level of 24 applies to a 
defendant with two prior felony convictions of a crime of violence or a 
controlled substance offense, and an alternative base offense level of 
20 applies to a defendant with one prior felony conviction of a crime 
of violence or a controlled substance offense. The base offense level 
of 12 appears to be disproportionately low compared with other 20 year 
offenses, and compared with the treatment of 18 U.S.C. 842(p)(2) 
offenses under Sec.  2M6.1. This is especially true in light of the 
definition of ``destructive device'', defined at 18 U.S.C. 921(a)(4) to 
include ``(A) any explosive, incendiary, or poison gas (i) bomb, (ii) 
grenade, (iii) rocket having a propellant charge of more than four 
ounces, (iv) missile having an explosive or incendiary charge of more 
than one-quarter ounce, (v) mine, or (vi) device similar to any of the 
devices described in the preceding clauses * * * .''
    The proposed amendment also makes the enhancement at Sec.  
2K1.3(b)(3) and the cross reference at Sec.  2K1.3(c)(1) applicable to 
18 U.S.C. 842(p)(2) offenses. Currently, in cases in which the 
defendant used or possessed any explosive material in connection with 
another felony offense or possessed or transferred any explosive 
material with knowledge, intent, or reason to believe that it would be 
used or possessed in connection with another felony offense, subsection 
(b)(3) provides a four level enhancement and a minimum offense level of 
level 18, and, if the resulting offense level is greater, the cross 
reference at subsection (c)(1) references such cases either to Sec.  
2X1.1 (Attempt, Solicitation, or Conspiracy), or to the most analogous 
homicide guideline if death resulted. Application of both subsection 
(b)(3) and subsection (c)(1) to 18 U.S.C. 842(p)(2) offenses is 
appropriate because of the defendant's knowledge and/or intent that the 
defendant's teaching would be used to carry out another felony.
    Finally, the proposed amendment makes minor technical changes to 
the Statutory Provisions of Sec.  2M6.1.
Proposed Amendment (Part IV)
    Section 2K1.3(a) is amended by redesignating subdivisions (3) and 
(4) as subdivisions (4) and (5), respectively; and by inserting after 
subdivision (2) the following:
    ``(3) 18, if the defendant was convicted under 18 U.S.C. 
842(p)(2);''.
    Section 2K1.3(b)(3) is amended by inserting ``(A) was convicted 
under 18 U.S.C. 842(p)(2); or (B)'' after ``defendant''.
    Section 2K1.3(c)(1) is amended by inserting ``(A) was convicted 
under 18 U.S.C. 842(p)(2); or (B)'' after ``defendant''.
    The Commentary to Sec.  2K1.3 captioned ``Application Notes'' is 
amended in Note 3 by striking ``(3)'' and inserting ``(4)''.
    The Commentary to Sec.  2K1.3 captioned ``Application Notes'' is 
amended in the second paragraph of Note 9 by striking ``(3)'' and 
inserting ``(4)''.
    The Commentary to Sec.  2M6.1 captioned ``Statutory Provisions'' is 
amended by inserting ``(only with respect to weapons of mass 
destruction as defined in 18 U.S.C. 2332a(c)(2)(B), (C), and (D), but 
including any biological agent, toxin, or vector),'' after 
``842(p)(2)''.

2. Immigration

    Synopsis of Amendment: This proposed amendment addresses various 
application issues that have come to the Commission's attention through 
Helpline calls, training sessions, and case law. First, two options are 
provided to address felony drug trafficking offenses that receive a 
sentence other than imprisonment. Currently, there is some confusion 
regarding whether such offenses should receive a 16-, 12-, or 8-level 
enhancement. Under the current guideline (as well as both proposed 
options), drug trafficking offenses for which the term of imprisonment 
imposed was more than 13 months receive a 16-level enhancement. Under 
Option One, all other felony drug trafficking offenses will receive a 
12-level enhancement. Under Option Two, felony drug trafficking 
offenses that receive a term of imprisonment of less than 13 months 
will receive a 12-level enhancement, and felony drug trafficking 
offenses that receive a sentence other than imprisonment (e.g., 
probation or a fine) will receive an 8-level enhancement.
    This amendment also makes the following commentary changes: Adds 
definitions of ``alien smuggling'', ``child pornography'', and ``human 
trafficking'' offenses; adds commentary to clarify how revocations of 
probation, parole, or supervised release should be treated for purposes 
of determining the term of imprisonment imposed; adds language 
prohibiting the use of juvenile adjudications under this guideline; and 
amends the definition of ``aggravated felony'' to exclude offenses of 
simple possession of a controlled substance.
Proposed Amendment
    Section 2L1.2(b)(1)(A)(i) is amended by inserting ``was a term of 
imprisonment that'' after ``imposed''.

[[Page 77540]]

    [Option One:
    Section 2L1.2(b)(1) is amended by striking subdivision (B) and 
inserting the following:
    ``(B) a conviction for a felony drug trafficking offense other than 
a felony drug trafficking offense covered under subdivision (A), 
increase by 12 levels;''.]
    [Option Two:
    Section 2L1.2(b)(1)(B) is amended by inserting ``a term of 
imprisonment of'' after ``imposed was''.]
    The Commentary to Sec.  2L1.2 captioned ``Application Notes'' is 
amended in subdivision (A) of Note 1 by striking subdivision (iv) and 
inserting the following:
    ``(iv) `Term of imprisonment'.--
    (I) Definition.--`Term of imprisonment' means the sentence of 
incarceration originally imposed.
    (II) Probated, Suspended, Deferred, or Stayed Sentences.--If all or 
any part of a term of imprisonment was probated, suspended, deferred, 
or stayed, `sentence imposed' refers only to the portion that was not 
probated, suspended, deferred, or stayed. A sentence in which all of a 
term of imprisonment was suspended and a term of probation was imposed 
is not a term of imprisonment for purposes of this guideline. [Option 
Two: Accordingly, for purposes of subsections (b)(1)(A) and (B), the 
sentence imposed for a felony drug trafficking offense must be a 
sentence of incarceration. Any felony drug trafficking sentence other 
than a sentence of incarceration (e.g., probation or a fine) shall be 
counted under subsection (b)(1)(C).]
    (III) Revocations of Probation or Parole.--For purposes of 
determining the term of imprisonment in a case involving a revocation 
of probation, parole, or supervised release add the term of 
imprisonment given upon revocation to any term of imprisonment 
originally imposed.
    (v) Subsection (b)(1) does not apply to a conviction for an offense 
committed prior to age of eighteen years unless it is classified as an 
adult conviction under the laws of the jurisdiction in which the 
defendant was convicted (e.g., a Federal conviction for an offense 
committed prior to the defendant's eighteenth birthday is an adult 
conviction if the defendant was expressly proceeded against as an 
adult).''.
    The Commentary to Sec.  2L1.2 captioned ``Application Notes'' is 
amended in Note 1 by striking subdivision (B) and inserting the 
following:
    ``(B) Definitions.--For purposes of subsection (b)(1):
    (i) `Alien smuggling offense committed for profit' means (I) an 
offense described in section 1324(a) of title 8, United States Code, 
that was committed for profit, regardless of whether the indictment 
charged that the offense was committed for profit; or (II) an offense 
under state law consisting of conduct that would have been an offense 
under 8 U.S.C. 1324(a) that was committed for profit, regardless of 
whether the indictment charged that the offense was committed for 
profit, if the offense had occurred within the special maritime and 
territorial jurisdiction of the United States. `Committed for profit' 
means the offense was committed for payment or expectation of payment.
    (ii) `Child pornography offense' means (I) an offense described in 
section 2251, 2251A, 2252[, or 2260] of title 18, United States Code; 
or (II) an offense under state law consisting of conduct that would 
have been an offense under any such section if the offense had occurred 
within the special maritime and territorial jurisdiction of the United 
States.
    (iii) `Crime of violence' means any of the following: murder, 
manslaughter, kidnapping, aggravated assault, forcible sex offenses 
(including sexual abuse of a minor), robbery, arson, extortion, 
extortionate extension of credit, burglary of a dwelling, or any 
offense under federal, state, or local law that has as an element the 
use, attempted use, or threatened use of physical force against the 
person of another.
    (iv) `Drug trafficking offense' means an offense under federal, 
state, or local law that prohibits the manufacture, import, export, 
distribution, or dispensing of a controlled substance (or a counterfeit 
substance) or the possession of a controlled substance (or a 
counterfeit substance) with intent to manufacture, import, export, 
distribute, or dispense.
    (v) `Felony' means any federal, state, or local offense punishable 
by imprisonment for a term exceeding one year.
    (vi) `Firearms offense' means any of the following:
    (I) An offense under federal, state, or local law that prohibits 
the importation, distribution, transportation, or trafficking of a 
firearm described in 18 U.S.C. 921, or of an explosive material as 
defined in 18 U.S.C. 841(c).
    (II) An offense under federal, state, or local law that prohibits 
the possession of a firearm described in 26 U.S.C. 5845(a), or of an 
explosive material as defined in 18 U.S.C. 841(c).
    (III) A violation of 18 U.S.C. 844(h).
    (IV) A violation of 18 U.S.C. 924(c).
    (V) A violation of 18 U.S.C. 929(a).
    (VI) An offense under state law consisting of conduct that would 
have been an offense under subdivision (III), (IV), or (V) if the 
offense had occurred within the special maritime and territorial 
jurisdiction of the United States.
    (vii) `Human trafficking offense' means (I) any offense described 
in section 1581, 1582, 1583, 1584, 1585, 1588 [, 1589, 1590, or 1591] 
of title 18, United States Code; or (II) an offense under state law 
consisting of conduct that would have been an offense under any such 
section if the offense had occurred within the special maritime and 
territorial jurisdiction of the United States.
    (viii) `Terrorism offense' means any offense involving, or 
intending to promote, a `federal crime of terrorism', as that term is 
defined in 18 U.S.C. 2332b(g)(5).''.
    The Commentary to Sec.  2L1.2 captioned ``Application Notes'' is 
amended by striking Note 2 and inserting the following:
    ``2. Application of Subsection (b)(1)(C).--
    (A) Definitions.--For purposes of subsection (b)(1)(C), `aggravated 
felony' (i) has the meaning given that term in 8 U.S.C. 1101(a)(43), 
without regard to the date of conviction of the aggravated felony, and 
(ii) does not include the offense of possession of a controlled 
substance without an intent to distribute that controlled substance.
    (B) In General.--The offense level shall be increased under 
subsection (b)(1)(C) for any aggravated felony (as defined in 
subdivision (A)), with respect to which the offense level is not 
increased under subsections (b)(1)(A) or (B) [(e.g., a felony drug 
trafficking offense for which the sentence imposed was a sentence other 
than imprisonment)].''.
    The Commentary to Sec.  2L1.2 captioned ``Application Notes'' is 
amended in Note 3(B) by striking ``(i) were separated by an intervening 
arrest; (ii) did not occur on the same occasion; (iii) were not part of 
a single common scheme or plan; or (iv) were not consolidated for trial 
or sentencing'' and inserting ``are not considered related cases as 
defined in Application Note 3 of Sec.  4A1.2 (Definitions and 
Instructions for Computing Criminal History)''.

3. Sec.  5G1.3 (Imposition of a Sentence on a Defendant Subject to an 
Undischarged Term of Imprisonment)

    Synopsis of Proposed Amendment: This is a three part proposed 
amendment that addresses a number of issues in Sec.  5G1.3 (Imposition 
of a Sentence on a Defendant Subject to an

[[Page 77541]]

Undischarged Term of Imprisonment). First, the amendment amends Sec.  
5G1.3(b) to allow the court to adjust the length of the sentence for 
any prior period of imprisonment that ``resulted from offenses that 
have been fully taken into account in the determination of the offense 
level for the instant offense''. Currently, this subsection only 
applies to undischarged terms of imprisonment for any such prior period 
of imprisonment. As a conforming amendment, the proposed amendment 
deletes the downward departure provision in Application Note 7 for 
prior discharged terms of imprisonment.
    In addition to adding discharged terms of imprisonment to the 
operation of subsection (b), this amendment proposes two options to 
clarify the rule for application of subsection (b) to a prior term of 
imprisonment. There has been litigation regarding what ``fully taken 
into account'' means. See United States v. Garcia-Hernandez, 237 F.3d 
105, 109 (2d Cir. 2000) (determining that a prior offense is ``fully 
taken into account'' if and only if the Guidelines provide for 
sentencing as if both the offense of conviction and the separate 
offense had been prosecuted in a single proceeding); United States v. 
Caraballo, 200 F.3d 20, 25 (1st Cir. 1999) (holding that the term 
``fuly'' cannot be read as synonymous with the term ``relevant 
conduct'' because this would be over-inclusive). Compare United States 
v. Fuentes, 107 F.3d 1515, 1524 (11th Cir. 1997) (finding that a prior 
offense has been ``fully taken into account'' when the prior offense is 
part of the same course of conduct, common scheme, or plan). Option One 
makes clear that subsection (b) shall apply only to prior offenses that 
are relevant conduct to the instant offense of conviction and that 
resulted in an increase in the offense level for the instant offense. 
Option Two makes clear that subsection (b) shall apply in cases in 
which the conduct of the prior offense is (1) Incorporated in the base 
offense level for the instant offense, (2) covered by a specific 
offense characteristic in the guideline for the instant offense, or (3) 
covered by a chapter three adjustment applicable to the instant 
offense. Option Two does not require that the chapter two or three 
offense level necessarily be increased by the prior offense.
    This proposed amendment provides two options to address how this 
guideline applies in cases in which an instant offense committed while 
the defendant is on federal or state probation, parole, or supervised 
release, and has had such probation, parole, or supervised release 
revoked. In doing so, this amendment resolves a circuit conflict on the 
issue. The majority of circuits to consider the issue have held that 
imposition of consecutive sentence is required by Application Note 6. 
See, e.g., United States v. Smith, 282 F.3d 1045, 1048 (8th Cir. 2002) 
(stating that Application Note 6 requires consecutive sentences); 
United States v. Alexander, 100 F.3d 24, 27 (5th Cir. 1996) (same); 
United States v. Gondek, 65 F.3d 1, 3 (1st Cir. 1995) (same); United 
States v. Bernard, 48 F.3d 427, 431-32 (9th Cir. 1995) (same). See also 
United States v. Campbell, No. 01-5661, 2002 U.S. App. LEXIS 23024 (6th 
Cir., Nov. 6, 2002) (affirming imposition of consecutive sentence as 
consistent with guideline commentary); United States v. Walker, 98 F.3d 
944, 945 (7th Cir. 1996) (noting a strong presumption in favor of 
consecutive sentence). Three circuits, however, have disagreed. The 
second, third, and tenth circuits held that the word ``should'' in 
Application Note 6 renders the commentary non-binding. See United 
States v. Maria, 186 F.3d 65, 70-73 (2d Cir. 1999); United States v. 
Swan, 275 F.3d 272, 279-83 (3d Cir. 2002); United States v. Tisdale, 
248 F.3d 964, 977-79 (10th Cir. 2001). Under Option One A, the sentence 
for the instant offense shall be imposed to run consecutively to the 
undischarged term of imprisonment. Option One B maintains the current 
language in Application Note 6 which provides that the sentence for the 
instant offense should run consecutively to the undischarged term of 
imprisonment.
    Finally, an issue for comment is provided regarding whether the 
Commission should resolve a circuit split with respect to Sec.  
5G1.3(c) and whether the sentencing court may grant ``credit'' for time 
served in state prison for an undischarged sentence, in addition to 
running the federal sentence concurrently with the remaining portion of 
the defendant's preexisting state sentence. Compare Ruggiano v. Reish, 
307 F.3d 121 (3d Cir. 2002) (federal sentencing court may grant such 
credit), with United States v. Fermin, 252 F.3d 102 (2d Cir. 2001) 
(court may not grant such credit).
Proposed Amendment
    Option One:
    Section 5G1.3 is amended in the heading by striking ``on a 
Defendant Subject to an'' and inserting ``in Cases Involving an''; and 
by inserting ``or Discharged'' after ``Undischarged''.
    [Option One A:
    Section 5G1.3(a) is amended by inserting ``(1)'' before 
``serving''; and by striking ``imprisonment,'' and inserting 
``imprisonment; or (2) on federal or state probation, parole, or 
supervised release at the time of the instant offense, and has had such 
probation, parole, or supervised release revoked,''.]
    Section 5G1.3 is amended by striking subsection (b) and inserting 
the following:
    ``(b) If subsection (a) does not apply, and a term of imprisonment 
resulted from another offense that (1) is relevant conduct to the 
instant offense of conviction under the provisions of subsections 
(a)(1), (a)(2), or (a)(3) of Sec.  1B1.3 (Relevant Conduct); and (2) 
was the basis for an increase in the offense level for the instant 
offense under chapter two (Offense Conduct) or chapter three 
(Adjustments), the sentence for the instant offense shall be imposed as 
follows:
    (A) If the term of imprisonment for that other offense is 
undischarged--
    (i) The court [may][shall] adjust the sentence for any period of 
imprisonment already served on the undischarged term of imprisonment if 
the court determines that such period of imprisonment will not be 
credited to the federal sentence by the Bureau of Prisons; and
    (ii) The sentence for the instant offense shall be imposed to run 
concurrently to the undischarged term of imprisonment.
    (B) If the term of imprisonment is discharged, the court 
[may][shall] adjust the sentence for any period of imprisonment already 
served.''.
    [Option One A:
    The Commentary to Sec.  5G1.3 captioned ``Application Notes'' is 
amended by striking Note 1 and inserting the following:
    ``1. Revocations under Subsection (a).--In a case in which the 
defendant was on federal or state probation, parole, or supervised 
release at the time of the instant offense, and has had such probation, 
parole, or supervised release revoked, the sentence for the instant 
offense shall be imposed to run consecutively to the term imposed for 
the violation of probation, parole, or supervised release in order to 
provide an incremental penalty for the violation of probation, parole, 
or supervised release. See subsection (f) of Sec.  7B1.3 (Revocation of 
Probation or Supervised Release).''.]
    The Commentary to Sec.  5G1.3 captioned ``Application Notes'' is 
amended by striking Note 2 and inserting the following:
    ``2. Subsection (b) Cases.--
    (A) In General.--Subsection (b) applies in cases in which (i) all 
of the prior offense is relevant conduct to the instant offense under 
the provisions of subsection (a)(1), (a)(2), or (a)(3) of Sec.  1B1.3 
(Relevant Conduct); and (ii)

[[Page 77542]]

such prior offense has resulted in an increase in the chapter two or 
chapter three offense level for the instant offense. Cases in which 
only part of the prior offense is relevant conduct to the instant 
offense are covered under subsection (c).
    (B) Inapplicability of Subsection (b).--Subsection (b) does not 
apply in cases in which the prior offense increased the chapter two or 
chapter three offense level for the instant offense, but was not 
relevant conduct to the instant offense under Sec.  1B1.3(a)(1), 
(a)(2), or (a)(3) (e.g., the prior offense is an aggravated felony for 
which the defendant received an increase under Sec.  2L1.2 (Unlawfully 
Entering or Remaining in the United States), or the prior offense was a 
crime of violence for which the defendant received an increased base 
offense level under Sec.  2K2.1 (Unlawful Receipt, Possession, or 
Transportation of Firearms or Ammunition; Prohibited Transactions 
Involving Firearms or Ammunition)).
    (C) Imposition of Sentence.--If subsection (b) applies, the court 
should note on the judgment order (i) the amount of time by which the 
sentence is being adjusted; (ii) the undischarged or discharged term of 
imprisonment for which the adjustment is being given; and (iii) that 
the sentence imposed is a `sentence reduction pursuant to Sec.  
5G1.3(b), Application Note 2(C), for a period of imprisonment which 
will not be credited by the Bureau of Prisons.'
    (D) Examples.--The following are examples in which subsection (b) 
applies and an adjustment to the sentence is appropriate:
    (i) The defendant is convicted of a federal offense charging the 
sale of 40 grams of cocaine. Under Sec.  1B1.3, the defendant is held 
accountable for the sale of an additional 15 grams of cocaine, an 
offense for which the defendant has been convicted and sentenced in 
state court. The defendant received a nine-month sentence of 
imprisonment for the state offense and has served six months on that 
sentence at the time of sentencing on the instant federal offense. The 
guideline range applicable to the defendant is 12-18 months (chapter 
two offense level of 16 for sale of 55 grams of cocaine; 3-level 
reduction for acceptance of responsibility; final offense level of 13; 
Criminal History Category I).
    The court determines that a sentence of 13 months provides the 
appropriate total punishment. Because the defendant already has served 
six months on the related state charge as of the date of sentencing on 
the instant federal offense, a sentence of seven months, imposed to run 
concurrently with the three months remaining on the defendant's state 
sentence, achieves this result.
    (ii) The defendant is convicted of a federal offense charging the 
sale of 150 grams of cocaine. Under Sec.  1B1.3, the defendant is held 
accountable for the sale of an additional 50 grams of cocaine, an 
offense for which the defendant has been convicted and sentenced in 
state court. The state term was discharged after the defendant served 6 
months of imprisonment. The guideline range applicable to the defendant 
is 24-30 months (chapter two offense level of 20 for sale of 200 grams 
of cocaine; 3-level reduction for acceptance of responsibility; final 
offense level of 17; Criminal History Category I). The court determines 
that a sentence of 24 months provides the appropriate total punishment. 
Because the defendant already has served six months on the discharged 
state term, a sentence of 18 months on the instant offense achieves 
this result.''.
    [Option One B would maintain current Application Note 6 of the 
Commentary to Sec.  5G1.3 as follows:
    ``6. Revocations. If the defendant was on federal or state 
probation, parole, or supervised release at the time of the instant 
offense, and has had such probation, parole, or supervised release 
revoked, the sentence for the instant offense should be imposed to run 
consecutively to the term imposed for the violation of probation, 
parole, or supervised release in order to provide an incremental 
penalty for the violation of probation, parole, or supervised release. 
See Sec.  7B1.3 (Revocation of Probation or Supervised Release) 
(setting forth a policy that any imprisonment penalty imposed for 
violating probation or supervised release should be consecutive to any 
sentence of imprisonment being served or subsequently imposed).]''.
    Section 5G1.3 captioned ``Application Notes'' is amended by 
striking Note 7.
    Option Two:
    Section 5G1.3 is amended in the heading by striking ``on a 
Defendant Subject to an'' and inserting ``in Cases Involving an''; and 
by inserting ``or Discharged'' after ``Undischarged''.
    [Option Two A:
    Section 5G1.3(a) is amended by inserting ``(1)'' before 
``serving''; and by striking ``imprisonment,'' and inserting 
``imprisonment; or (2) on federal or state probation, parole, or 
supervised release at the time of the instant offense, and has had such 
probation, parole, or supervised release revoked,''.]
    Section 5G1.3 is amended by striking subsection (b) and inserting 
the following:
    ``(b) If subsection (a) does not apply, and a term of imprisonment 
resulted from another offense that is covered by the applicable chapter 
two guideline or an applicable chapter three adjustment for the instant 
offense of conviction, the sentence for the instant offense shall be 
imposed as follows:
    (1) If the term of imprisonment for that other offense is 
undischarged--
    (A) The court [may][shall] adjust the sentence for any period of 
imprisonment already served on the undischarged term of imprisonment if 
the court determines that such period of imprisonment will not be 
credited to the federal sentence by the Bureau of Prisons; and
    (B) The sentence for the instant offense shall be imposed to run 
concurrently to the undischarged term of imprisonment.
    (2) If the term of imprisonment is discharged, the court 
[may][shall] adjust the sentence for any period of imprisonment already 
served.''.
    [Option Two A:
    The Commentary to Sec.  5G1.3 captioned ``Application Notes'' is 
amended by striking Note 1 and inserting the following:
    ``1. Revocations under Subsection (a).--In a case in which the 
defendant was on federal or state probation, parole, or supervised 
release at the time of the instant offense, and has had such probation, 
parole, or supervised release revoked, the sentence for the instant 
offense shall be imposed to run consecutively to the term imposed for 
the violation of probation, parole, or supervised release in order to 
provide an incremental penalty for the violation of probation, parole, 
or supervised release. See subsection (f) of Sec.  7B1.3 (Revocation of 
Probation or Supervised Release).''.]
    The Commentary to Sec.  5G1.3 captioned ``Application Notes'' is 
amended by striking Note 2 and inserting the following:
    ``2. Subsection (b) Cases.--
    (A) In General.--Subsection (b) applies in cases in which the 
conduct comprising all of the prior offense is covered by the 
applicable chapter two guideline or an applicable chapter three 
adjustment for the instant offense of conviction. Such conduct is 
covered by the chapter two guideline or a chapter three adjustment if 
the conduct is (i) incorporated in the base offense level for the 
instant offense of conviction; (ii) covered by a specific offense 
characteristic in the guideline for the instant offense of conviction; 
or (iii) covered by a chapter three adjustment applicable to the 
instant offense of conviction. Cases in which only part of

[[Page 77543]]

the prior offense is covered are addressed under subsection (c).
    (B) Inapplicability of Subsection (b).--Subsection (b) does not 
apply in cases in which the base offense level or the specific offense 
characteristic in the applicable chapter two offense guideline is an 
enhancement for a prior conviction (e.g., the prior offense is an 
aggravated felony for which the defendant received an increase under 
Sec.  2L1.2 (Unlawfully Entering or Remaining in the United States), or 
the prior offense was a crime of violence for which the defendant 
received an increased base offense level under Sec.  2K2.1 (Unlawful 
Receipt, Possession, or Transportation of Firearms or Ammunition; 
Prohibited Transactions Involving Firearms or Ammunition)).
    (C) Imposition of Sentence.--If subsection (b) applies, the court 
should note on the judgment order (i) the amount of time by which the 
sentence is being adjusted; (ii) the undischarged or discharged term of 
imprisonment for which the adjustment is being given; and (iii) that 
the sentence imposed is a `sentence reduction pursuant to Sec.  
5G1.3(b), Application Note 2(C), for a period of imprisonment which 
will not be credited by the Bureau of Prisons.'
    (D) Examples.--The following are examples in which subsection (b) 
applies and an adjustment to the sentence is appropriate:
    (i) The defendant is convicted of a Federal offense charging the 
sale of 30 grams of cocaine. Under Sec.  1B1.3, the defendant is held 
accountable for the sale of an additional 15 grams of cocaine, an 
offense for which the defendant has been convicted and sentenced in 
State court. The defendant received a nine-month sentence of 
imprisonment for the State offense and has served six months on that 
sentence at the time of sentencing on the instant Federal offense. The 
guideline range applicable to the defendant is 10-16 months (chapter 
two offense level of 14 for sale of 45 grams of cocaine; 2 level 
reduction for acceptance of responsibility; final offense level of 12; 
Criminal History Category I). The court determines that a sentence of 
13 months provides the appropriate total punishment. Because the 
defendant already has served six months on the related State charge as 
of the date of sentencing on the instant Federal offense, a sentence of 
seven months, imposed to run concurrently with the three months 
remaining on the defendant's State sentence, achieves this result.
    (ii) The defendant is convicted of a Federal offense charging the 
sale of 150 grams of cocaine. Under Sec.  1B1.3, the defendant is held 
accountable for the sale of an additional 50 grams of cocaine, an 
offense for which the defendant has been convicted and sentenced in 
State court. The State term was discharged after the defendant served 6 
months of imprisonment. The guideline range applicable to the defendant 
is 24-30 months (chapter two offense level of 20 for sale of 200 grams 
of cocaine; 3-level reduction for acceptance of responsibility; final 
offense level of 17; Criminal History Category I). The court determines 
that a sentence of 24 months provides the appropriate total punishment. 
Because the defendant already has served six months on the discharged 
State term, a sentence of 18 months on the instant offense achieves 
this result.''.
    [Option Two B would maintain current Application Note 6 of the 
commentary to Sec.  5G1.3 as follows:
    ``[6. Revocations. If the defendant was on Federal or State 
probation, parole, or supervised release at the time of the instant 
offense, and has had such probation, parole, or supervised release 
revoked, the sentence for the instant offense should be imposed to run 
consecutively to the term imposed for the violation of probation, 
parole, or supervised release in order to provide an incremental 
penalty for the violation of probation, parole, or supervised release. 
See Sec.  7B1.3 (Revocation of Probation or Supervised Release) 
(setting forth a policy that any imprisonment penalty imposed for 
violating probation or supervised release should be consecutive to any 
sentence of imprisonment being served or subsequently imposed).]''.
    Section 5G1.3 captioned ``Application Notes'' is amended by 
striking Note 7 .
    Issue for Comment: The Commission requests comment on whether it 
should resolve a circuit split with respect to Sec.  5G1.3(c) and 
whether the sentencing court may grant ``credit'' for time served in 
State prison for an undischarged sentence, in addition to running the 
Federal sentence concurrently with the remaining portion of the 
defendant's preexisting State sentence. Compare Ruggiano v. Reish, 307 
F.3d 121 (3d Cir. 2002) (Federal sentencing court may grant such 
credit), with United States v. Fermin, 252 F.3d 102 (2d Cir. 2001) 
(court may not grant such credit). If so, how should this apparent 
conflict be resolved?

4. Miscellaneous Amendments

    Synopsis of Proposed Amendment: This proposed amendment makes 
technical and conforming changes to various guideline provisions. The 
proposed amendment accomplishes the following:
    (1) Amends Sec.  1B1.1 (Application Instructions) to (A) provide an 
instruction that makes clear that the application instructions are to 
be applied in the order presented in the guideline; (B) amend 
Application Note 4 to make clear that, absent an instruction to the 
contrary, multiple specific offense characteristics (or a chapter two 
specific offense characteristic and a chapter three adjustment) that 
are triggered by the same conduct are to be applied cumulatively; and 
(C) provide an application note concerning the use of abbreviated 
guideline titles to ease reference to guidelines that have 
exceptionally long titles.
    (2) Restructures the definitions of ``prohibited sexual conduct'' 
in Sec. Sec.  2A3.1 (Criminal Sexual Abuse) and 4B1.5 (Repeat and 
Dangerous Sex Offender Against Minors) to eliminate possible ambiguity 
regarding the interaction of ``means'' and ``includes''.
    (3) Amends the definition of ``child pornography'' in Sec. Sec.  
2A3.1 and 4B1.5, and the definition of ``visual depiction'' in Sec.  
2G2.4 (Possession of Materials Depicting Minor Engaged in Sexually 
Explicit Conduct), in light of Ashcroft v. The Free Speech Coalition, 
et al., 122 S.Ct. 1389 (2002).
    (4) (A) Amends Sec.  2D1.11 (Unlawfully Distributing, Importing, 
Exporting or Possessing a Listed Chemical) by: (i) providing a maximum 
base offense level of 30 if the defendant receives an adjustment under 
Sec.  3B1.2 (Mitigating Role) and providing a two level reduction if 
the defendant meets the criteria of subdivisions (1) through (5) of 
subsection (a) of Sec.  5C1.2 (Limitation on Applicability of Statutory 
Minimum Sentences in Certain Cases) to conform this guideline to Sec.  
2D1.1 (Drug Trafficking), which was amended last amendment cycle; (ii) 
adding red phosphorus to the Chemical Quantity Table in response to a 
recent classification of red phosphorus as a List I chemical; and (B) 
provides an issue for comment regarding the penalties for oxycodone 
generally and a brand named pill containing oxycodone known as 
Oxycontin.
    (5) Amends the departure provision in Application Note 6 of Sec.  
2G2.1 (Sexually Exploiting a Minor by Production of Sexually Explicit 
Visual or Printed Material; Custodian Permitting Minor to Engage in 
Sexually Explicit Conduct; Advertisement for Minors to Engage in 
Production) to conform to Application Note 12 of Sec.  2G1.1 (Promoting 
Prostitution or Prohibited Sexual Conduct).

[[Page 77544]]

    (6) Amends subsection (b)(5) of Sec.  2G2.2 (Trafficking in 
Material Involving the Sexual Exploitation of a Minor; Receiving, 
Transporting, Shipping, or Advertising Material Involving the Sexual 
Exploitation of a Minor; Possessing Material Involving the Sexual 
Exploitation of a Minor with Intent to Traffic) to include receipt and 
distribution in the enhancement for use of a computer. Currently the 
enhancement only applies to offenses in which a computer was used for 
the transmission of child pornography.
    (7) Responds to new legislation and makes other technical 
amendments as follows:
    (a) Amends Appendix A (Statutory Index) and Sec.  2N2.1 (Violations 
of Statutes and Regulations Dealing with any Food, Drug, Biological 
Product, Device, Cosmetic, or Agricultural Product) in response to new 
offenses created by the Farm Security and Rural Investment Act of 2002 
(the ``Act''), Pub. L. 107-171. The first new offense provides a 
statutory maximum of one year for violating the Animal Health 
Protection Act (subtitle E of the Act), or for counterfeiting or 
destroying certain documents specified in the Animal Health Protection 
Act. The second new offense provides a statutory maximum term of 
imprisonment of five years for importing, entering, exporting, or 
moving any animal or article for distribution or sale. The Act also 
provides a statutory maximum of 10 years for a subsequent violation of 
either offense.
    (b) Amends Appendix A (Statutory Index) and Sec.  2B1.1 in response 
to a new offense (19 U.S.C. 2401f) created by the Trade Act of 2002, 
Pub. L. 107-210. The new offense provides a statutory maximum term of 
imprisonment of one year for knowingly making a false statement of 
material fact for the purpose of obtaining or increasing a payment of 
federal adjustment assistance to qualifying agricultural commodity 
producers.
    (c) Amends Appendix A (Statutory Index) and Sec. Sec.  2C1.3 
(Conflict of Interest; Payment or Receipt of Unauthorized Compensation) 
and 2K2.5 (Possession of Firearm or Dangerous Weapon in Federal 
Facility; Possession or Discharge of Firearm in School Zone) in 
response to the codification of title 40, United States Code, by Pub. 
L. 107-217. Section 5104(e)(1) of title 40, United States Code, 
prohibits anyone (except as authorized by the Capitol Police Board) 
from carrying or having readily accessible a firearm, dangerous weapon, 
explosive, or an incendiary device on the Capitol Grounds or in any of 
the Capitol Buildings. The statutory maximum term of imprisonment is 
five years. The proposed amendment references 40 U.S.C. 5104(e)(1) to 
2K2.5. Section 14309(a) of title 40, United States Code, prohibits 
certain conflicts of interests of members of the Appalachian Regional 
Commission and provides a statutory maximum term of imprisonment 
penalty of two years. Section 14309(b) prohibits certain additional 
sources of salary and provides a statutory maximum term of imprisonment 
of not more than one year. The proposed amendment references 40 U.S.C. 
14309(a) and (b) to 2C1.3.
    (d) Amends Appendix A (Statutory Index) and Sec.  2H2.1 
(Obstructing an Election or Registration) to provide a guideline 
reference for offenses under 18 U.S.C. 1015(f). Currently, 18 U.S.C. 
1015 generally is referenced to 2B1.1 (Larceny, Embezzlement, and Other 
Forms of Theft; Offenses Involving Stolen Property; Property Damage or 
Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or 
Counterfeit Instruments Other than Counterfeit Bearer Obligations of 
the United States), 2J1.3 (Perjury or Subornation of Perjury; Bribery 
of Witness), 2L2.1 (Trafficking in a Document Relating to 
Naturalization, Citizenship, or Legal Resident Status), and 2L2.2 
(Fraudulently Acquiring Documents Relating to Naturalization, 
Citizenship, or Legal Resident Status for Own Use). However, 18 U.S.C. 
1015(f) specifically relates to knowingly making false statements in 
order to register to vote, or to vote, in a Federal, State, or local 
election. The proposed amendment references 18 U.S.C. 1015(f) to Sec.  
2H2.1 (Obstructing an Election or Registration).
Proposed Amendment
    Section 1B1.1 is amended by adding ``.--Except as specifically 
directed, the provisions of this manual are to be applied in the 
following order:'' after ``Application Instructions''.
    The Commentary to Sec.  1B1.1 captioned ``Application Notes'' is 
amended by striking Note 4 and inserting the following:
    ``4. (A) Specific Offense Characteristics.--The offense level 
adjustments from more than one specific offense characteristic within 
an offense guideline are applied cumulatively (added together) unless 
the guideline specifies that only the greater (or greatest) is to be 
used. Within each specific offense characteristic subsection, however, 
the offense level adjustments are alternative; only the one that best 
describes the conduct is to be used. For example, in Sec.  2A2.2(b)(3), 
pertaining to degree of bodily injury, the subdivision that best 
describes the level of bodily injury is used; the adjustments for 
different degrees of bodily injury (subdivisions (A)-(E)) are not added 
together.
    (B) Adjustments from Different Guideline Sections.--Absent an 
instruction to the contrary, the adjustments from different guideline 
sections are applied cumulatively (added together). In some cases, such 
adjustments (e.g., a chapter two specific offense characteristic and a 
chapter three [or chapter four] adjustment) may be triggered by the 
same conduct, but are meant to take into account different aspects of 
that conduct. For example, shooting a police officer during the 
commission of a robbery may warrant an injury enhancement under Sec.  
2B3.1(b)(3) and an official victim enhancement under Sec.  3A1.1, even 
though both enhancements are triggered by the shooting of the officer. 
Section 2B3.1(b)(3) accounts for the injury to the police officer, 
while Sec.  3A1.2(a) accounts for the official status of the victim.''.
    The Commentary to Sec.  1B1.1 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``(7) Whenever a guideline makes reference to another guideline, a 
parenthetical restatement of that other guideline's heading accompanies 
the initial reference to that other guideline. This parenthetical is 
provided only for the convenience of the reader and is not intended to 
have substantive effect. In the case of lengthy guideline headings, 
such a parenthetical restatement of the guideline heading may be 
abbreviated for ease of reference. For example, references to Sec.  
2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses 
Involving Stolen Property; Property Damage or Destruction; Fraud and 
Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments 
Other than Counterfeit Bearer Obligations of the United States) may be 
abbreviated as follows: Sec.  2B1.1 (Theft, Fraud, and Property 
Destruction).''.
    The Commentary to section Sec.  2A3.1 captioned ``Application 
Notes'' is amended in Note 1 by striking ```Prohibited sexual 
conduct''' and all that follows through ``child pornography.'' and 
inserting the following:
    ```Prohibited sexual conduct' means any sexual activity for which a 
person can be charged with a criminal offense. `Prohibited sexual 
conduct' includes the production of child pornography, but does not 
include trafficking in, or possession of, child pornography.''.

[[Page 77545]]

    The Commentary to Sec.  4B1.5 captioned ``Application Notes'' is 
amended in subdivision (A) of Note 4 by inserting ``means any of the 
following:'' After ``conduct'''; by striking ``means'' after ``(i)''; 
by striking ``includes'' each place it appears; by inserting ``or'' 
before ``(iii)''; and by striking ``; and (iv)'' and inserting ``. 
It''.
    The Commentary to Sec.  2A3.1 captioned ``Application Notes'' is 
amended in Note 1 in the paragraph that begins ```Prohibited sexual 
conduct''' by striking ```Child pornography''' and all that follows 
through ``2256(8).'' and inserting the following:
    ```Child pornography' means any visual depiction, including any 
photograph, film, video, picture, or computer or computer-generated 
image or picture, whether made or produced by electronic, mechanical, 
or other means, of sexually explicit conduct, in which--
    (A) The production of such visual depiction involved the use of a 
minor engaging in sexually explicit conduct;
    (B) Such visual depiction is a minor engaging in sexually explicit 
conduct; or
    (C) Such visual depiction has been created, adapted, or modified to 
appear that an identifiable minor is engaging in sexually explicit 
conduct.''.
    The Commentary to Sec.  2G2.4 captioned ``Application Notes'' is 
amended in Note 1 by deleting ```Visual depiction''' and all that 
follows through ``and (8).'' and inserting the following:
    `` `Visual depiction' means any visual depiction described in 18 
U.S.C. 2256(5) or any photograph, film, video, picture, or computer or 
computer-generated image or picture, whether made or produced by 
electronic, mechanical, or other means, of sexually explicit conduct, 
in which--
    (A) The production of such visual depiction involved the use of a 
minor engaging in sexually explicit conduct;
    (B) Such visual depiction is a minor engaging in sexually explicit 
conduct; or
    (C) Such visual depiction has been created, adapted, or modified to 
appear that an identifiable minor is engaging in sexually explicit 
conduct.''.
    The Commentary to Sec.  4B1.5 captioned ``Application Notes'' is 
amended in subdivision (A) of Note 3 by striking subdivision (ii) and 
inserting the following:
    `` `Sex offense conviction' means any offense described in 18 
U.S.C. 2426(b)(1)(A) or (B), if the offense was perpetrated against a 
minor, and does not include trafficking in, receipt of, or possession 
of, child pornography. `Child pornography' has the meaning given that 
term in Application Note 1 of Sec.  2A3.1 (Criminal Sexual Abuse; 
Attempt to Commit Criminal Sexual Abuse).''.
    The Commentary to Sec.  4B1.5 captioned ``Application Notes'' is 
amended in subdivision (A) of Note 4 by striking ``18 U.S.C. 2256(8)'' 
and inserting ``Application Note 1 of Sec.  2A3.1 (Criminal Sexual 
Abuse; Attempt to Commit Criminal Sexual Abuse)''.
    Section Sec.  2D1.11(a) is amended by inserting ``, except that if 
the defendant receives an adjustment under Sec.  3B1.2 (Mitigating 
Role), the base offense level shall be not more than level 30'' after 
``appropriate''.
    Section Sec.  2D1.11(b) is amended by inserting at the end the 
following:
    ``(4) If the defendant meets the criteria set forth in subdivisions 
(1)-(5) of subsection (a) of Sec.  5C1.2 (Limitation on Applicability 
of Statutory Minimum Sentences in Certain Cases), decrease by 2 
levels.''.
    Section Sec.  2D1.11(e)(1) is amended in the subdivision captioned 
``List I Chemicals'' by striking the period after ``Gamma-
butyrolactone'' and inserting a semi-colon; and by adding at the end 
the following:
    ``714 G or more of Red Phosphorus.''.
    Section Sec.  2D1.11(e)(2) is amended in the subdivision captioned 
``List I Chemicals'' by adding at the end the following:
    ``At least 214 G but less than 714 G of Red Phosphorus;''.
    Section Sec.  2D1.11(e)(3) is amended in the subdivision captioned 
``List I Chemicals'' by adding at the end the following:
    ``At least 71 G but less than 214 G of Red Phosphorus;''.
    Section Sec.  2D1.11(e)(4) is amended in the subdivision captioned 
``List I Chemicals'' by adding at the end the following:
    ``At least 50 G but less than 71 G of Red Phosphorus;''.
    Section Sec.  2D1.11(e)(5) is amended in the subdivision captioned 
``List I Chemicals'' by adding at the end the following:
    ``At least 29 G but less than 50 G of Red Phosphorus;''.
    Section Sec.  2D1.11(e)(6) is amended in the subdivision captioned 
``List I Chemicals'' by adding at the end the following:
    ``At least 7 G but less than 29 G of Red Phosphorus;''.
    Section Sec.  2D1.11(e)(7) is amended in the subdivision captioned 
``List I Chemicals'' by adding at the end the following:
    ``At least 6 G but less than 7 G of Red Phosphorus;''.
    Section Sec.  2D1.11(e)(8) is amended in the subdivision captioned 
``List I Chemicals'' by adding at the end the following:
    ``At least 4 G but less than 6 G of Red Phosphorus;''.
    Section Sec.  2D1.11(e)(9) is amended in the subdivision captioned 
``List I Chemicals'' by adding at the end the following:
    ``At least 3 G but less than 4 G of Red Phosphorus;''.
    Section Sec.  2D1.11(e)(10) is amended in the subdivision captioned 
``List I Chemicals'' by adding at the end the following:
    ``Less than 3 G of Red Phosphorus.''
    The Commentary to Sec.  2D1.11 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``7. Applicability of Subsection (b)(4).--The applicability of 
subsection (b)(4) shall be determined without regard to whether the 
defendant was convicted of an offense that subjects the defendant to a 
mandatory minimum term of imprisonment. Section Sec.  5C1.2(b), which 
provides a minimum offense level of level 17, is not pertinent to the 
determination of whether subsection (b)(4) applies.''.
    Issue for Comment: The Commission requests comment regarding the 
penalties for oxycodone generally and a brand named prescription drug 
containing oxycodone known as Oxycontin. Currently, the Drug 
Equivalency Tables in Sec.  2D1.1 (Unlawful Manufacturing, Importing, 
Exporting, or Trafficking (Including Possession with Intent to Commit 
These Offenses); Attempt or Conspiracy) provide a marihuana equivalency 
of 500 grams for one gram of a mixture of substance containing 
oxycodone. Recently, however, drug enforcement has reported an increase 
in trafficking of the prescription drug Oxycontin, which contains 
higher than historical amounts of oxycodone but weighs substantially 
less than other prescription drugs containing oxycodone. Consequently, 
a defendant convicted of trafficking in certain prescription drugs 
containing smaller amounts of oxycodone relative to the total weight of 
the pill may receive a higher sentence than a defendant convicted of 
trafficking in larger amounts of Oxycontin.
    How should the Commission address the weight differential and the 
resulting sentencing disparity? Should the equivalency for oxycodone be 
reevaluated? Should the Commission amend the Drug Equivalency Tables in 
Sec.  2D1.1 to provide a separate marihuana equivalency for Oxycontin, 
notwithstanding that the guidelines do not otherwise provide specific 
penalties for brand name drugs? If so, what should that marihuana 
equivalency be?

[[Page 77546]]

    Alternatively, should the Commission sentence oxycodone defendants 
based on the purity of the prescription drug involved (an approach 
currently used in sentencing methamphetamine and amphetamine 
defendants)? This approach may require amending the Drug Quantity 
Tables in Sec.  2D1.1 to provide separate penalties for oxycodone 
(actual) and oxycodone (mixture). Oxycontin additionally has a time 
release element that can be eliminated simply by crushing or breaking 
the pill, increasing the immediate effect for the user. Should the 
Commission provide an enhancement for trafficking in pills that have a 
time release element?
    The Commentary to Sec.  2G2.1 captioned ``Application Notes'' is 
amended by striking Note 6 and inserting the following:
    ``6. Upward Departure Provisions.--An upward departure may be 
warranted if the offense involved more than 10 victims.''.
    Section 2G2.2(b)(5) is amended by inserting ``, receipt, or 
distribution'' after ``transmission''.
    The Commentary to Sec.  2B1.1 captioned ``Statutory Provisions'' is 
amended by inserting ``19 U.S.C. 2401f;'' after ``2332b(a)(1);''.
    The Commentary to Sec.  2C1.3 captioned ``Statutory Provisions'' is 
amended by inserting ``; 40 U.S.C. 14309(a), (b)'' after ``1909''.
    The Commentary to Sec.  2H2.1 captioned ``Statutory Provisions'' is 
amended by inserting ``, 1015(f)'' after ``597''.
    The Commentary to Sec.  2K2.5 captioned ``Statutory Provisions'' is 
amended by inserting ``; 40 U.S.C. 5104(e)(1)'' after ``930''.
    The Commentary to Sec.  2N2.1 captioned ``Statutory Provisions'' is 
amended by inserting ``, 8313'' after ``7734''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 7 U.S.C. 7734 the following new line:
    ``7 U.S.C. 8313 2N2.1'';
    in the line referenced to 18 U.S.C. 1015 by inserting ``(a)-(e)'' 
after ``1015'';
    by inserting after the line referenced to 18 U.S.C. 1015 the 
following new line:
    ``18 U.S.C. 1015(f) 2H2.1'';
    by inserting after the line referenced to 19 U.S.C. 2316 the 
following new line:
    ``19 U.S.C. 2401f 2B1.1''; and
    by inserting after the line referenced 38 U.S.C. 3502 to the 
following new lines:
    ``40 U.S.C. 5104(e)(1) 2K2.5
    40 U.S.C. 14309(a), (b) 2C1.3''.

5. Involuntary Manslaughter

    Synopsis of Proposed Amendment: This proposed amendment is a 
continuation of the Commission's work over the past several years to 
ensure that the guidelines provide appropriate guideline penalties for 
offenses involving involuntary manslaughter. In 1994, Congress 
increased the statutory maximum penalty for involuntary manslaughter 
offenses from three years' to six years' imprisonment after receiving a 
Commission report analyzing federal criminal penalties and recommending 
that the statutory maximum penalty for involuntary manslaughter be 
increased to six years. Studies have shown that the heartland of 
involuntary manslaughter offenses involves vehicular homicide and that 
these offenses are punished more severely by many of the States. The 
Commission further examined both voluntary and involuntary manslaughter 
offenses in 1997, and in 1998 sent a report and letter to Congress 
recommending that the statutory maximum penalty for voluntary 
manslaughter offenses be increased to permit the Commission to make 
changes that would maintain proportionality based on offense severity. 
Although no action has been taken on that recommendation, the 
Commission has received recommendations from Congress and the 
Department of Justice that it proceed to amend the guidelines for 
involuntary manslaughter to increase the base offense levels. 
Accordingly, this proposed amendment increases the base offense levels 
for involuntary manslaughter by [2][4][6] levels. An issue for comment 
follows that generally seeks the public's input regarding the 
appropriate offense levels for involuntary manslaughter offenses, 
including (with a view toward proportionate sentencing) the appropriate 
offense levels for involuntary manslaughter offenses compared to 
offense levels for aggravated assault.
Proposed Amendment
    Section 2A1.4(a)(1) is amended by striking ``10'' and inserting 
``[12][14][16]''.
    Section 2A1.4(a)(2) is amended by striking ``14'' and inserting 
``[16][18][20]''.
    Issue for Comment: The Commission requests comment generally on the 
appropriate offense levels for offenses involving involuntary 
manslaughter. In addition, the Commission requests comment regarding 
the appropriate and proportionate offense levels for involuntary 
manslaughter compared to offense levels for aggravated assault under 
Sec.  2A2.2 (Aggravated Assault). Currently, the base offense level for 
aggravated assault is level 15, and the guideline contains several 
enhancements, such as enhancements for bodily injury. As a consequence, 
the guideline penalties for aggravated assault currently are more 
serious than those for involuntary manslaughter.

6. Cybersecurity

    Issue for Comment: Section 225 of the Homeland Security Act of 2002 
(the Cyber Security Enhancement Act of 2002), Pub. L. 107-296, directs 
the Commission to review and amend, if appropriate, the sentencing 
guidelines and policy statements applicable to persons convicted of an 
offense under section 1030 of title 18, United States Code, to ensure 
that the sentencing guidelines and policy statements reflect the 
serious nature of such offenses, the growing incidence of such 
offenses, and the need for an effective deterrent and appropriate 
punishment to prevent such offenses.
    The directive also includes a number of factors for the Commission 
to consider, including the potential and actual loss resulting from the 
offense, the level of sophistication and planning involved in the 
offense, whether the offense was committed for purposes of commercial 
advantage or private financial benefit, whether the defendant acted 
with malicious intent to cause harm in committing the offense, the 
extent to which the offense violated the privacy rights of individuals 
harmed, whether the offense involved a computer used by the government 
in furtherance of national defense, national security, or the 
administration of justice, whether the violation was intended to, or 
had the effect of, significantly interfering with or disrupting 
critical infrastructure, and whether the violation was intended to, or 
had the effect of, creating a threat to public health or safety, or 
injury to any person.
    The Commission requests comment regarding how it should respond to 
this directive.

7. Offenses Involving Body Armor and Assault Against a Federal Judge 
Issues for Comment:

    1. Section 11009 of the 21st Century Department of Justice 
Appropriations Authorization Act (the ``Act''), Pub. L. 107-273, 
directs the Sentencing Commission to review and amend the sentencing 
guidelines, as appropriate, to provide an appropriate sentencing 
enhancement for any crime of violence (as defined in 18 U.S.C. 16) or 
drug trafficking crime (as defined in 18

[[Page 77547]]

U.S.C. 924(c) (including a crime of violence or drug trafficking crime 
that provides for an enhanced punishment if committed by the use of a 
deadly or dangerous weapon or device) in which the defendant used body 
armor. The Act further states that it is the sense of Congress that any 
such enhancement should be at least two levels. The Commission requests 
comment regarding how it should respond to this directive. For example, 
should the Commission provide a Chapter Three adjustment for the use of 
body armor in any crime of violence or drug trafficking crime? 
Alternatively, should the Commission provide a specific offense 
characteristic in all relevant chapter two guidelines (e.g., Sec.  
2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking 
(Including Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy)) that would apply if the defendant used body armor in the 
course of the offense?
    What would be an appropriate increase for the use of body armor if 
the Commission provides a chapter three adjustment or a specific 
offense characteristic in the relevant chapter two guidelines?
    2. Section 11008 of the Act directs the Commission to review and 
amend, if appropriate, the guidelines or policy statements to provide 
an appropriate enhancement for offenses involving influencing, 
assaulting, resisting, impeding, retaliating against, or threatening a 
Federal judge, magistrate judge, or any other official described in 18 
U.S.C. 111 or 115. The directive also contains a number of factors for 
the Commission to consider, including the range of conduct covered by 
the offenses, the existing sentence for the offense, the extent to 
which the guidelines for these offenses have been constrained by 
statutory maximum penalties, and the adequacy of the guidelines to 
ensure punishment at or near the maximum penalty for the most egregious 
conduct covered by the offense. The Act also increases the statutory 
maximum terms of imprisonment for the following offenses: For 
threatened assaults under 18 U.S.C. 115 (Influencing, impeding, or 
retaliating against a Federal official by threatening or injuring a 
family member), from three years to six years; for all other threats 
made in violation of 18 U.S.C. 115, from five years to ten years; for a 
violation of 18 U.S.C. 111 (Assaulting, resisting, or impeding certain 
officers or employees), from three years to eight years; and for the 
use of a dangerous weapon or inflicting bodily injury in the commission 
of an offense under 18 U.S.C. 111, from 10 to 20 years.
    Appendix A (Statutory Index) references 18 U.S.C. 111 to 2A2.2 
(Aggravated Assault) and 2A2.4 (Obstructing or Impeding Officers). 
These guidelines have base offense levels of 15 and 6, respectively. 
Section 115 of title 18, United States Code, is referenced to, among 
other guidelines, Sec. Sec.  2A2.1 (Assault with Intent to Commit 
Murder; Attempted Murder), 2A2.2, and 2A2.3 (Minor Assault). The base 
offense level for Sec.  2A2.1 is level 28 (if the object of the offense 
would have constituted first degree murder) or level 22. The base 
offense level for Sec.  2A2.3 is level 6 (if the conduct involved 
physical contact, or if a dangerous weapon was possessed or its use was 
threatened) or level 3.
    Given the directive, the factors to consider, and the increases in 
the statutory maximum penalties, the Commission requests comment 
regarding the following:
    (A) Should the Commission provide an enhancement in the assault 
guidelines for offenses involving influencing, assaulting, resisting, 
impeding, retaliating against, or threatening a Federal judge, 
magistrate judge, or any other official described in 18 U.S.C. 111 or 
115? If so, what would be an appropriate increase for such enhancement? 
Are there additional, related enhancements that the Commission should 
provide in the assault guidelines, particularly given the directive to 
consider providing sentences at or near the statutory maximum for the 
most egregious cases?
    (B) Do the current base offense levels in each of the assault 
guidelines provide adequate punishment for the covered conduct? If not, 
what would be appropriate base offense levels for Sec. Sec.  2A2.2, 
2A2.3, and 2A2.4?
    (C) Should the Commission consider more comprehensive amendments to 
the assault guidelines as part of, or in addition to, its response to 
the directives? For example, should the Commission consolidate 
Sec. Sec.  2A2.3 and 2A2.4? Should the Commission amend Sec.  
2A2.3(b)(1) to provide a two level enhancement for bodily injury? Some 
commentators have argued that such an amendment would bring the minor 
and aggravated assault guidelines more in line with one another because 
there may be cases in which an assault that does not qualify as an 
aggravated assault under Sec.  2A2.2 nevertheless involves bodily 
injury. Are there any other application issues pertaining to the 
assault guidelines that the Commission should address?

[FR Doc. 02-31869 Filed 12-17-02; 8:45 am]
BILLING CODE 2210-40-P