[Federal Register Volume 68, Number 95 (Friday, May 16, 2003)]
[Notices]
[Pages 26960-26979]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-12176]



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Part X





United States Sentencing Commission





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Sentencing Guidelines for United States Courts; Notice

  Federal Register / Vol. 68, No. 95 / Friday, May 16, 2003 / Notices  

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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of (1)(A)(i) congressional amendments to the sentencing 
guidelines made directly by the PROTECT Act, Pub. L. 108-21, and 
effective April 30, 2003; and (ii) conforming amendments to the 
amendments described in subdivision (i), promulgated pursuant to 
401(m)(2)(C) of the PROTECT Act and 28 U.S.C. 994, and effective April 
30, 2003; and (B) amendment to Sec.  2A4.1 (Kidnapping, Abduction, 
Unlawful Restraint) promulgated pursuant to section 104 of the PROTECT 
Act, and effective May 30, 2003; and (2) submission to Congress of 
amendments to the sentencing guidelines effective November 1, 2003.

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SUMMARY: (1) PROTECT Act Amendments.--In the PROTECT Act, Congress 
directly amended Sec. Sec.  2G2.2 (Trafficking in Materials Involving 
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), 2G2.4 (Possession of Materials Depicting a Minor 
Engaged in Sexually Explicit Conduct), 3E1.1 (Acceptance of 
Responsibility), 4B1.5 (Repeat and Dangerous Sex Offender Against 
Minors), 5H1.6 (Family Ties and Responsibilities, and Community Ties), 
5K2.0 (Grounds for Departure), 5K2.13 (Diminished Capacity), and 5K2.20 
(Aberrant Behavior), and enacted a new policy statement at Sec.  5K2.22 
(Specific Offender Characteristics as Grounds for Downward Departure in 
Child Crimes and Sexual Offenses). These amendments became effective on 
April 30, 2003. The PROTECT Act requires the Commission to distribute 
these amendments forthwith to federal courts and probation offices.
    Pursuant to 401(m)(2)(C) of the PROTECT Act and section 994 of 
title 28, United States Code, the Commission promulgated conforming 
amendments to the congressional amendments to the guidelines made 
directly by the PROTECT Act. Section 994(x) of title 28, United States 
Code, requires the Commission to comply with the notice and comment 
procedures set forth in 5 U.S.C. 553. Section 553 provides, however, a 
``good cause'' exception to the general notice and comment requirements 
if the ``agency for good cause finds (and incorporates the finding and 
a brief statement of reasons therefor in the rules issued) that notice 
and public procedure thereon are impracticable, unnecessary, or 
contrary to the public interest.'' 5 U.S.C. 553(b); see also 5 U.S.C. 
553(d)(3) (providing an exception to the otherwise applicable 30 day 
notice period ``as otherwise provided by the agency for good cause 
found and published with the rule''). The effective date of the 
congressional amendments noted in the previous paragraph and the Act's 
directive to distribute such amendments forthwith made it impracticable 
to publish the conforming amendments in the Federal Register to provide 
an opportunity for public comment before the congressional amendments 
became effective. The Commission therefore had good cause not to 
publish those amendments before they became effective.
    This notice also sets forth an amendment to Sec.  2A4.1 
(Kidnapping, Abduction, Unlawful Restraint), which Congress in the Act 
specifically directed the Commission to make ``[n]otwithstanding any 
other provision of law regarding the amendment of Sentencing 
Guidelines''. Pub. L. 108-21, section 104(a). The Act provides that 
this amendment shall ``take effect on the date that is 30 days after 
the date of the enactment of this Act.''. Id.
    (2) Section 994(p) Amendments.--Pursuant to its authority under 28 
U.S.C. 994(p), the Commission has promulgated amendments to the 
sentencing guidelines, policy statements, commentary, and statutory 
index.
    This notice sets forth the amendments and the reason for each 
amendment.

DATES: (1) PROTECT Act Amendments.--The effective date for the 
amendments to Sec. Sec.  2G2.2, 2G2.4, 3E1.1, 4B1.5, 5H1.6, 5K2.0, 
5K2.13, and 5K2.20, and the enactment of Sec.  5K2.22, is April 30, 
2003. The effective date for the amendment to Sec.  2A4.1 is May 30, 
2003.
    (2) Section 994(p) Amendments.--The Commission has specified an 
effective date of November 1, 2003, for the amendments made pursuant to 
28 U.S.C. 994(p) set forth in Part Two of this notice.

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs 
Officer, 202-502-4590. The amendments set forth in this notice also may 
be accessed through the Commission's website at http://www.ussc.gov. 
The April 30, 2003 Supplement to the 2002 Guidelines Manual sets forth 
the PROTECT Act amendments and the emergency amendments promulgated by 
the Commission effective January 25, 2003. This Supplement, when used 
in conjunction with the 2002 Guidelines Manual, constitutes the 
operative Guidelines Manual effective April 30, 2003. It may be 
accessed through the Commission's Web site as well.

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is 
an independent agency in the judicial branch of the United States 
Government. The Commission promulgates sentencing guidelines and policy 
statements for federal sentencing courts pursuant to 28 U.S.C. 994(a). 
The Commission also periodically reviews and revises previously 
promulgated guidelines pursuant to 28 U.S.C. 994(o) and generally 
submits guideline amendments to Congress pursuant to 28 U.S.C. 994(p) 
not later than the first day of May each year. Absent action of 
Congress to the contrary, submitted amendments become effective by 
operation of law on the date specified by the Commission (generally 
November 1 of the year in which the amendments are submitted to 
Congress).
    (1) PROTECT Act Amendments.--The congressional amendments made by 
and pursuant to the PROTECT Act are set forth in Part One of this 
notice.
    (2) Section 994(p) Amendments.--Notice of proposed amendments made 
pursuant to 28 U.S.C. 994(p) was published in the Federal Register on 
December 18, 2002 (see 67 FR 77532-77547), and January 17, 2003 (see 68 
FR 2615-2628). The Commission held a public hearing on the proposed 
amendments in Washington, D.C., on March 25, 2003. After a review of 
hearing testimony and additional public comment, the Commission 
promulgated the amendments set forth in Part Two of this notice. On May 
1, 2003, the Commission submitted these amendments to Congress and 
specified an effective date of November 1, 2003.

    Authority: 28 U.S.C. 994(a), (o), and (p); USSC Rule of Practice 
and Procedure 4.1.

Diana E. Murphy,
Chair.

Part One: PROTECT Act Amendments

    1. Amendment: Section 2G2.2(b) is amended by adding at the end the 
following:
    ``(6) If the offense involved--
    (A) At least 10 images, but fewer than 150, increase by 2 levels;
    (B) At least 150 images, but fewer than 300, increase by 3 levels;

[[Page 26961]]

    (C) At least 300 images, but fewer than 600, increase by 4 levels; 
and
    (D) 600 or more images, increase by 5 levels.''.
    The Commentary to Sec.  2G2.2 is amended by adding at the end the 
following:
    ``Background: Section 401(i)(1)(C) of Public Law 108-21 directly 
amended subsection (b) to add subdivision (6), effective April 30, 
2003.''.
    Section 2G2.4(b) is amended by adding at the end the following:
    ``(4) If the offense involved material that portrays sadistic or 
masochistic conduct or other depictions of violence, increase by 4 
levels.
    (5) If the offense involved--
    (A) At least 10 images, but fewer than 150, increase by 2 levels;
    (B) At least 150 images, but fewer than 300, increase by 3 levels;
    (C) At least 300 images, but fewer than 600, increase by 4 levels; 
and
    (D) 600 or more images, increase by 5 levels.''.
    The Commentary to Sec.  2G2.4 is amended by adding at the end the 
following:
    ``Background: Section 401(i)(B) of Public Law 108-21 directly 
amended subsection (b) to add subdivisions (4) and (5), effective April 
30, 2003.''.
    Section 3E1.1(b) is amended by inserting ``upon motion of the 
government stating that'' before ``the defendant has assisted 
authorities''; and by striking ``taking one or more'' and all that 
follows through ``1 additional level'' and inserting ``timely notifying 
authorities of his intention to enter a plea of guilty, thereby 
permitting the government to avoid preparing for trial and permitting 
the government and the court to allocate their resources efficiently, 
decrease the offense level by 1 additional level''.
    The Commentary to Sec.  3E1.1 captioned ``Application Notes'' is 
amended in Note 6 by striking ``one or both of''; by striking ``(1) or 
(2)''; by striking ``(b)(2)'' and inserting ``(b)''; and by adding at 
the end the following new paragraph:
    ``Because the Government is in the best position to determine 
whether the defendant has assisted authorities in a manner that avoids 
preparing for trial, an adjustment under subsection (b) may be granted 
upon a formal motion by the Government at the time of sentencing. See 
section 401(g)(2)(B) of Pub. L. 108-21.''.
    The Commentary to Sec.  3E1.1 captioned ``Background'' is amended 
by striking ``one or more of'' both places it appears; and by adding at 
the end the following:
    ``Section 401(g) of Public Law 108-21 directly amended subsection 
(b), Application Note 6 (including adding the last paragraph of that 
application note), and the Background Commentary, effective April 30, 
2003.''.
    The Commentary to Sec.  4B1.5 captioned ``Application Notes'' is 
amended in Note 4(B) by striking subdivision (i) as follows:
    ``(i) In General--For purposes of subsection (b), the defendant 
engaged in a pattern of activity involving prohibited sexual conduct 
if--
    (I) On at least two separate occasions, the defendant engaged in 
prohibited sexual conduct with a minor; and
    (II) There were at least two minor victims of the prohibited sexual 
conduct.
    For example, the defendant engaged in a pattern of activity 
involving prohibited sexual conduct if there were two separate 
occasions of prohibited sexual conduct and each such occasion involved 
a different minor, of if there were two separate occasions of 
prohibited sexual conduct involving the same two minors.''.

and inserting:
    ``(i) In General--For purposes of subsection (b), the defendant 
engaged in a pattern of activity involving prohibited sexual conduct if 
on at least two separate occasions, the defendant engaged in prohibited 
sexual conduct with a minor.''.
    The Commentary to Sec.  4B1.5 captioned ``Background'' is amended 
by striking ``section 632 of Pub. L. 102-141 and section 505 of Pub. L. 
105-314'' and inserting ``section 632 of Public Law 102-141 and section 
505 of Public Law 105-314''; and by adding at the end the following:
    ``Section 401(i)(1)(A) of Public Law 108-21 directly amended 
Application Note 4(b)(i), effective April 30, 2003.''.
    Section 5H1.6 is amended by striking ``Family ties'' and inserting 
``In sentencing a defendant convicted of an offense other than an 
offense described in the following paragraph, family ties'';

and by inserting after the first sentence the following new paragraph:
    ``In sentencing a defendant convicted of an offense involving a 
minor victim under section 1201, an offense under section 1591, or an 
offense under chapter 71, 109A, 110, or 117, of title 18, United States 
Code, family ties and responsibilities and community ties are not 
relevant in determining whether a sentence should be below the 
applicable guideline range.''.
    Section 5H1.6 is amended by adding at the end the following:
``Commentary
    Background: Section 401(b)(4) of Public Law 108-21 directly amended 
this policy statement to add the second paragraph, effective April 30, 
2003.''.
    Section 5K2.0 is amended by striking ``Under'' and inserting the 
following:
    ``(a) DOWNWARD DEPARTURES IN CRIMINAL CASES OTHER THAN CHILD CRIMES 
AND SEXUAL OFFENSES.--Under'';

and by adding at the end the following:
    (b) DOWNWARD DEPARTURES IN CHILD CRIMES AND SEXUAL OFFENSES.--Under 
18 U.S.C. Sec.  3553(b)(2), the sentencing court may impose a sentence 
below the range established by the applicable guidelines only if the 
court finds that there exists a mitigating circumstance of a kind, or 
to a degree, that--
    (1) Has been affirmatively and specifically identified as a 
permissible ground of downward departure in the sentencing guidelines 
or policy statements issued under section 994(a) of title 28, United 
States Code, taking account of any amendments to such sentencing 
guidelines or policy statements by act of Congress;
    (2) Has not adequately been taken into consideration by the 
Sentencing Commission in formulating the guidelines; and
    (3) should result in a sentence different from that described.
    The grounds enumerated in this Part K of chapter 5 are the sole 
grounds that have been affirmatively and specifically identified as a 
permissible ground of downward departure in these sentencing guidelines 
and policy statements. Thus, notwithstanding any other reference to 
authority to depart downward elsewhere in this Sentencing Manual, a 
ground of downward departure has not been affirmatively and 
specifically identified as a permissible ground of downward departure 
within the meaning of section 3553(b)(2) unless it is expressly 
enumerated in this Part K as a ground upon which a downward departure 
may be granted.''.
    The Commentary to Sec.  5K2.0 is amended by inserting an asterisk 
after ``Commentary'' and by inserting the following new paragraph 
before ``The United'':

``[*Section 401(m)(2)(C) of Public Law 108-21 directs the Commission to 
revise Sec.  5K2.0, within 180 days after the date of the enactment of 
that Public Law, or October 27, 2003, to conform Sec.  5K2.0 to changes 
made by that Public Law, including changes to the appellate standard of 
review for decisions to depart from the guidelines. That directive has 
not been implemented yet in the following commentary.]''.
    The Commentary to Sec.  5K2.0 is amended by striking ``of this 
policy

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statement'' and inserting ``of subsection (a)''.
    The Commentary to Sec.  5K2.0 is amended by adding at the end the 
following:
    ``Section 401(b)(1) of Public Law 108-21 directly amended this 
policy statement to add subsection (b), effective April 30, 2003.''.
    Section 5K2.13 is amended by striking ``or'' before ``(3)''; and by 
striking ``public.'' and inserting ``public; or (4) the defendant has 
been convicted of an offense under chapter 71, 109A, 110, or 117, of 
title 18, United States Code.''.
    The Commentary to Sec.  5K2.13 is amended by adding at the end the 
following:
    ``Background: Section 401(b)(5) of Public Law 108-21 directly 
amended this policy statement to add subdivision (4), effective April 
30, 2003.''.
    Section 5K2.20 is amended by striking ``A sentence'' and inserting 
``Except where a defendant is convicted of an offense involving a minor 
victim under section 1201, an offense under section 1591, or an offense 
under chapter 71, 109A, 110, or 117, of title 18, United States Code, a 
sentence''.
    The Commentary to Sec.  5K2.20 is amended by adding at the end the 
following:
    ``Background: Section 401(b)(3) of Public Law 108-21 directly 
amended this policy statement, effective April 30, 2003.''.
    Chapter Five, Part K, is amended by adding at the end the 
following:
    ``Sec.  5K2.22. Specific Offender Characteristics as Grounds for 
Downward Departure in Child Crimes and Sexual Offenses (Policy 
Statement)
    In sentencing a defendant convicted of an offense involving a minor 
victim under section 1201, an offense under section 1591, or an offense 
under chapter 71, 109A, 110, or 117, of title 18, United States Code:
    (1) Age may be a reason to impose a sentence below the applicable 
guideline range only if and to the extent permitted by Sec.  5H1.1.
    (2) An extraordinary physical impairment may be a reason to impose 
a sentence below the applicable guideline range only if and to the 
extent permitted by Sec.  5H1.4.
    (3) Drug, alcohol, or gambling dependence or abuse is not a reason 
for imposing a sentence below the guidelines.
Commentary
    Background: Section 401(b)(2) of Public Law 108-21 directly amended 
Chapter Five, Part K, to add this policy statement, effective April 30, 
2003.''.
    Reason for Amendment: This amendment implements amendments to the 
guidelines made directly by the PROTECT Act, Pub. L. 108-21. In 
addition to amendments made directly by the PROTECT Act, this amendment 
makes technical and conforming amendments to those direct congressional 
amendments, pursuant to the Commission's authority to promulgate such 
technical and conforming amendments under section 401(m) of the PROTECT 
Act and 28 U.S.C. 994.
    2. Amendment: Section 2A4.1 is amended in subsection (a) by 
striking ``24'' and inserting the following:
    ``(1) 24 (effective before, but not on or after, May 30, 2003).
    (1) 32 (effective on and after May 30, 2003).'';

in subsection (b)(4)(C), by inserting ``(effective before, but not on 
or after, May 30, 2003)'' after ``level'';

and by striking subsection (b)(5) as follows:
    ``(5) If the victim was sexually exploited, increase by 3 levels.''

and inserting the following:
    ``(5) If the victim was sexually exploited:
    (A) Increase by 3 levels (effective before, but not on or after, 
May 30, 2003).
    (A) Increase by 6 levels (effective on and after May 30, 2003).''.
    The Commentary to Sec.  2A4.1 captioned ``Application Notes'' is 
amended in Note 3 by inserting ``(effective before, but not on or 
after, May 30, 2003)'' after ``resistance''.
    The Commentary to Sec.  2A4.1 captioned ``Background'' is amended 
by adding at the end the following:
    ``Subsections (a) and (b)(5), and the deletion of subsection 
(b)(4)(C), effective May 30, 2003, implement the directive to the 
Commission in section 104 of Public Law 108-21.''.
    Reason for Amendment: This amendment implements the directive to 
the Commission in section 104 of the PROTECT Act, Pub. L. 108-21.

Part Two: Section 994(p) Amendments

    1. Amendment: Section 2A1.4(a)(1) is amended by striking ``10'' and 
inserting ``12''.
    Section 2A1.4(a)(2) is amended by striking ``14'' and inserting 
``18''.
    Reason for Amendment: This amendment responds to a concern that the 
federal sentencing guidelines do not adequately reflect the seriousness 
of involuntary manslaughter offenses. Specifically, the Department of 
Justice, some members of Congress, and an ad hoc advisory group formed 
by the Commission to address Native American sentencing guideline 
issues expressed concern that most federal involuntary manslaughter 
cases involve vehicular homicides, which analysis of Commission data 
confirmed. These commentators also indicated that these offenses appear 
to be underpunished, particularly when compared to comparable cases 
arising under state law. This disparity with state punishments has been 
confirmed by studies undertaken by the Commission. In addition, 
Congress increased the maximum statutory penalty for involuntary 
manslaughter from three to six years' imprisonment in 1994.
    In response to these concerns and the Commission's analysis, this 
amendment increases the base offense level in Sec.  2A1.4(a)(2) for 
reckless involuntary manslaughter offenses from level 14 to level 18. 
This four level increase corresponds to an approximate 50 percent 
increase in sentence length for these offenses. This amendment also 
increases the base offense level in Sec.  2A4.1(a)(1) for criminally 
negligent involuntary manslaughter offenses from level 10 to level 12. 
The two level increase represents an approximate 25 percent increase in 
the sentence length for these offenses.
    2. Amendment: Sections 2B1.1, 2E5.3, 2J1.2, and 2T4.1, effective 
January 25, 2003 (see USSC Guidelines Manual Supplement to the 2002 
Supplement to Appendix C, Amendment 647), are repromulgated with the 
following changes:
    Section 2B1.1(a) is amended to read as follows:
    ``(a) Base Offense Level:
    (1) 7, if (A) the defendant was convicted of an offense referenced 
to this guideline; and (B) that offense of conviction has a statutory 
maximum term of imprisonment of 20 years or more; or
    (2) 6, otherwise.''.
    Section 2B1.1(b)(12) is amended by striking ``If the resulting'' 
and all that follows through ``to level 24.''; and by inserting after 
subdivision (B) the following:
    ``(C) The cumulative adjustments from application of both 
subsections (b)(2) and (b)(12)(B) shall not exceed 8 levels, except as 
provided in subdivision (D).
    (D) If the resulting offense level determined under subdivision (A) 
or (B) is less than level 24, increase to level 24.''.
    Section 2B1.1(b) is amended by striking the following:
    ``(13) If the offense involved a violation of securities law and, 
at the time of the offense, the defendant was an officer or a director 
of a publicly traded company, increase by 4 levels.'';

and inserting the following:

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    ``(14) If the offense involved--
    (A) A violation of securities law and, at the time of the offense, 
the defendant was (i) an officer or a director of a publicly traded 
company; (ii) a registered broker or dealer, or a person associated 
with a broker or dealer; or (iii) an investment adviser, or a person 
associated with an investment adviser; or
    (B) A violation of commodities law and, at the time of the offense, 
the defendant was (i) an officer or a director of a futures commission 
merchant or an introducing broker; (ii) a commodities trading advisor; 
or (iii) a commodity pool operator,

increase by 4 levels.''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended by redesignating Notes 2 through 9 as Notes 3 through 10, 
respectively; by redesignating Notes 11 through 16 as Notes 13 through 
18, respectively; by inserting after Note 1 the following:
    ``2. Application of Subsection (a)(1).--
    (A) `Referenced to This Guideline'.--For purposes of subsection 
(a)(1), an offense is `referenced to this guideline' if (i) this 
guideline is the applicable Chapter Two guideline determined under the 
provisions of Sec.  1B1.2 (Applicable Guidelines) for the offense of 
conviction; or (ii) in the case of a conviction for conspiracy, 
solicitation, or attempt to which Sec.  2X1.1 (Attempt, Solicitation, 
or Conspiracy) applies, this guideline is the appropriate guideline for 
the offense the defendant was convicted of conspiring, soliciting, or 
attempting to commit.
    (B) Definition of `Statutory Maximum Term of Imprisonment'--For 
purposes of this guideline, `statutory maximum term of imprisonment' 
means the maximum term of imprisonment authorized for the offense of 
conviction, including any increase in that maximum term under a 
statutory enhancement provision.
    (C) Base Offense Level Determination for Cases Involving Multiple 
Counts.--In a case involving multiple counts sentenced under this 
guideline, the applicable base offense level is determined by the count 
of conviction that provides the highest statutory maximum term of 
imprisonment.'';

and by striking ``10. Application of Subsection (b)(12)(B).--'' and 
inserting ``11. Application of Subsection (b)(12)(B).--''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 4, as redesignated by this amendment, in subdivision 
(B)(ii)(IV) by striking ``or more''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 13, as redesignated by this amendment, by striking 
``(b)(13)'' each place it appears and inserting ``(b)(14)''; by 
striking subdivision (A) and inserting the following:
    ``(A) Definitions.--For purposes of this subsection:
    `Commodities law' means (i) the Commodities Exchange Act (7 U.S.C. 
1 et seq.); and (ii) includes the rules, regulations, and orders issued 
by the Commodities Futures Trading Commission.
    `Commodity pool operator' has the meaning given that term in 
section 1a(4) of the Commodities Exchange Act (7 U.S.C. 1a(4)).
    `Commodity trading advisor' has the meaning given that term in 
section 1a(5) of the Commodities Exchange Act (7 U.S.C. 1a(5)).
    `Futures commission merchant' has the meaning given that term in 
section 1a(20) of the Commodities Exchange Act (7 U.S.C. 1a(20)).
    `Introducing broker' has the meaning given that term in section 
1a(23) of the Commodities Exchange Act (7 U.S.C. 1a(23)).
    `Investment adviser' has the meaning given that term in section 202 
of the Investment Advisers Act of 1940 (15 U.S.C. 80b-2(a)(11)).
    `Person associated with a broker or dealer' has the meaning given 
that term in section 3(a)(48) of the Securities Exchange Act of 1934 
(15 U.S.C. 78c(a)(18)).
    `Person associated with an investment adviser' has the meaning 
given that term in section 202 of the Investment Advisers Act of 1940 
(15 U.S.C. 80b-2(a)(17)).
    `Registered broker or dealer' has the meaning given that term in 
section 3(a)(48) of the Securities Exchange Act of 1934 (15 U.S.C. 
78c(a)(48)).
    `Securities law' (i) means 18 U.S.C. 1348, 1350, and the provisions 
of law referred to in section 3(a)(47) of the Securities Exchange Act 
of 1934 (15 U.S.C. 78c(a)(47)); and (ii) includes the rules, 
regulations, and orders issued by the Securities and Exchange 
Commission pursuant to the provisions of law referred to in such 
section.'';

and in subdivision (B) by inserting ``or commodities law'' after 
``securities law'' each place it appears.
    The Commentary to Sec.  2B1.1 captioned ``Background'' is amended 
in the first paragraph by striking the last sentence.
    The Commentary to Sec.  2C1.1 captioned ``Application Notes'' is 
amended in Note 2 by striking ``Note 2'' and inserting ``Note 3''.
    The Commentary to Sec.  2C1.7 captioned ``Application Notes'' is 
amended in Note 3 by striking ``Note 2'' and inserting ``Note 3''.
    The Commentary to Sec.  2J1.1 captioned ``Application Notes'' is 
amended in Note 1 by inserting ``In General.--'' before ``Because''.
    The Commentary to Sec.  2J1.1 captioned ``Application Notes'' is 
amended in Note 2 by inserting ``Willful Failure to Pay Court-Ordered 
Child Support.--'' before ``For offenses''.
    The Commentary to Sec.  2J1.1 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``3. Violation of Judicial Order Enjoining Fraudulent Behavior.--In 
a case involving a violation of a judicial order enjoining fraudulent 
behavior, the most analogous guideline is Sec.  2B1.1. In such a case, 
Sec.  2B1.1(b)(7)(C) (pertaining to a violation of a prior, specific 
judicial order) ordinarily would apply.''.
    The Commentary to Sec.  2J1.2 captioned ``Application Notes'' is 
amended in Note 1 by inserting before the paragraph that begins 
``Substantial interference'' the following:
    ``Definitions.--For purposes of this guideline:
    `Records, documents, or tangible objects' includes (A) records, 
documents, or tangible objects that are stored on, or that are, 
magnetic, optical, digital, other electronic, or other storage mediums 
or devices; and (B) wire or electronic communications.''.
    The Commentary to Sec.  2J1.2 captioned ``Application Notes'' is 
amended in Note 4 by inserting ``Upward Departure Considerations.--'' 
before ``If a weapon''; by striking ``a departure'' and inserting ``an 
upward departure''; and by inserting at the end the following:
    ``In a case involving an act of extreme violence (for example, 
retaliating against a government witness by throwing acid in the 
witness's face), an upward departure would be warranted.''.
    Section 2J1.3(a) is amended by striking ``12'' and inserting 
``14''.
    Appendix A, effective January 25, 2003 (see USSC Guidelines Manual 
Supplement to the 2002 Supplement to Appendix C, Amendments 647 and 
648; see also this document, Amendment 5), is repromulgated without 
change.
    Reason for Amendment: With this amendment the Commission continues 
its work to deter and punish economic and white collar crimes, building 
on its Economic Crime Package of 2001 and subsequent formation in early 
2002 of an Ad Hoc Advisory Group on the Organizational Guidelines for 
sentencing corporations and other organizations. This 2003 amendment 
also implements directives in sections 805, 905, and 1104 of the 
Sarbanes-Oxley Act of 2002, Pub. L. 107-204 (the

[[Page 26964]]

``Act''), by making several modifications to Sec. 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), 2J1.2 
(Obstruction of Justice), and 2E5.3 (False Statements and Concealment 
of Facts in Relation to Documents Required by the Employee Retirement 
Income Security Act; Failure to Maintain and Falsification of Records 
Required by the Labor Management Reporting and Disclosure Act; 
Destruction and Failure to Maintain Corporate Audit Records), as well 
as conforming changes to Sec. Sec.  2J1.1 (Contempt), 2J1.3 (Perjury or 
Subornation of Perjury; Bribery of Witness), and 2T4.1 (Tax Table). The 
amendment also responds to increased statutory penalties for existing 
crimes and several severely punished new crimes created by the Act.
    The directives in the Act generally pertain to serious fraud and 
related offenses and obstruction of justice offenses. Congress gave the 
Commission emergency amendment authority to promulgate amendments 
addressing, among other things, officers and directors of publicly 
traded companies who commit fraud and related offenses, fraud offenses 
that endanger the solvency or financial security of a substantial 
number of victims, fraud offenses that involve significantly greater 
than 50 victims, and obstruction of justice offenses that involve the 
destruction of evidence. This amendment expands upon the temporary 
emergency amendment effective January 25, 2003, and repromulgates it as 
a permanent amendment.
    First, the amendment modifies the base offense level in Sec.  2B1.1 
to implement more fully the directive contained in section 905(b)(2) of 
the Act to consider whether the guidelines ``for violations of the 
sections amended by this Act are sufficient to deter and punish such 
offenses, and specifically, are adequate in view of the statutory 
increases in penalties contained in this Act.'' Section 903 of the Act, 
for example, quadrupled the statutory maximum penalties for wire fraud 
and mail fraud from five to 20 years' imprisonment, while section 902 
made attempts and conspiracies subject to these same heightened 
penalties. Specifically, the amendment provides a new higher 
alternative base offense level of level 7 if the defendant was 
convicted of an offense referenced to Sec.  2B1.1 and the offense 
carries a statutory maximum term of imprisonment of 20 years or more. 
The alternative base offense levels are intended to calibrate better 
the base guideline penalty to the seriousness of the wide variety of 
offenses referenced to that guideline, as reflected by statutory 
maximum penalties established by Congress.
    For those offenses to which the higher alternative base offense 
will apply (including wire fraud and mail fraud), the effect of the 
amendment is to limit the availability of a probation only sentence in 
Zone A of the sentencing table to offenses involving loss amounts of 
$10,000 or less, assuming a two level reduction for acceptance of 
responsibility. Prior to the amendment, a Zone A sentence was available 
for all offenses sentenced under Sec.  2B1.1 involving loss amounts of 
$30,000 or less. Similarly, for those offenses for which the higher 
alternative base offense level will apply, the effect of the amendment 
is to require an imprisonment sentence in Zone D for offenses involving 
loss amounts of more than $70,000. Prior to the amendment, a Zone D 
sentence was required for all offenses sentenced under Sec.  2B1.1 
involving loss amounts of more than $120,000.
    Second, the amendment expands the loss table at Sec.  2B1.1(b)(1) 
to punish adequately offenses that cause catastrophic losses of 
magnitudes previously unforeseen, such as the serious corporate 
scandals that gave rise to several portions of the Act. Prior to the 
emergency amendment, the loss table at Sec.  2B1.1(b)(1) provided 
sentencing enhancements in two level increments up to a maximum of 26 
levels for offenses in which the loss exceeded $100,000,000. The 
amendment adds two additional loss amount categories to the table; an 
increase of 28 levels for offenses in which the loss exceeded 
$200,000,000, and an increase of 30 levels for offenses in which the 
loss exceeded $400,000,000. These additions to the loss table address 
congressional concern regarding particularly extensive and serious 
fraud offenses and also more fully effectuate increases in statutory 
maximum penalties provided by the Act. The amendment also modifies the 
tax table in Sec.  2T4.1 in a similar manner to maintain the 
longstanding proportional relationship between the loss table in Sec.  
2B1.1 and the tax table.
    The amendment also adds a new factor to the general, enumerated 
factors that the court may consider in determining the amount of loss 
under Sec.  2B1.1(b)(1). Specifically, the amendment adds the reduction 
in the value of equity securities or other corporate assets that 
resulted from the offense to the list of general factors set forth in 
Application Note 3(C) of Sec.  2B1.1. This factor was added to provide 
courts additional guidance in determining loss in certain cases, 
particularly in complex white collar cases.
    Third, the amendment addresses the directive contained in section 
1104(b)(5) of the Act to ``ensure that the guideline offense levels and 
enhancements under United States Sentencing Guideline 2B1.1 (as in 
effect on the date of enactment of this Act) are sufficient for a fraud 
offense when the number of victims adversely involved is significantly 
greater than 50.'' The amendment implements this directive by expanding 
the existing enhancement at Sec.  2B1.1(b)(2) based on the number of 
victims involved in the offense. Prior to the emergency amendment, 
subsection (b)(2) provided a two level enhancement if the offense 
involved more than 10, but less than 50, victims (or was committed 
through mass-marketing), and a four level enhancement if the offense 
involved 50 or more victims. The amendment provides an additional two 
level increase, for a total of six levels, if the offense involved 250 
or more victims. The Commission determined that an enhancement of this 
magnitude appropriately responds to the pertinent directive and 
accounts for the extensive nature of, and the large scale victimization 
caused by, such offenses.
    Fourth, the amendment addresses directives contained in sections 
805 and 1104 of the Act pertaining to securities and accounting fraud 
offenses and fraud offenses that endanger the solvency or financial 
security of a substantial number of victims. Specifically, section 
805(a)(4) directs the Commission to ensure that ``a specific offense 
characteristic enhancing sentencing is provided under United States 
Sentencing Guideline 2B1.1 (as in effect on the date of enactment of 
this Act) for a fraud offense that endangers the solvency or financial 
security of a substantial number of victims.'' In addition, section 
1104(b)(1) directs the Commission to ``ensure that the sentencing 
guidelines and policy statements reflect the serious nature of 
securities, pension, and accounting fraud and the need for aggressive 
and appropriate law enforcement action to prevent such offenses.'' The 
amendment implements these directives by expanding the scope of the 
existing enhancement at Sec.  2B1.1(b)(12)(B).
    Prior to the emergency amendment, Sec.  2B1.1(b)(12)(B) provided a 
four level enhancement and a minimum offense

[[Page 26965]]

level of level 24 if the offense substantially jeopardized the safety 
and soundness of a financial institution. The amendment expands the 
scope of this enhancement by providing two additional parts. The first 
part applies to offenses that substantially endanger the solvency or 
financial security of an organization that, at any time during the 
offense, was a publicly traded company or had 1,000 or more employees. 
The addition of this part reflects the Commission's determination that 
such an offense undermines the public's confidence in the securities 
and investment market much in the same manner as an offense that 
jeopardizes the safety and soundness of a financial institution 
undermines the public's confidence in the banking system. This part 
also reflects the likelihood that an offense that endangers the 
solvency or financial security of an employer of this size will 
similarly affect a substantial number of individual victims, without 
requiring the court to determine whether the solvency or financial 
security of each individual victim was substantially endangered.
    A corresponding application note for Sec.  2B1.1(b)(12)(B) sets 
forth a non-exhaustive list of factors that the court shall consider in 
determining whether the offense endangered the solvency or financial 
security of a publicly traded company or an organization with 1,000 or 
more employees. The list of factors that the court shall consider when 
applying the new enhancement includes references to insolvency, filing 
for bankruptcy, substantially reducing the value of the company's 
stock, and substantially reducing the company's workforce. As 
appropriate, the court may consider other factors not enumerated in the 
application note.
    The amendment also modifies the application note to previously 
existing Sec.  2B1.1(b)(12)(B), the financial institutions enhancement, 
to be consistent structurally with the new part of the enhancement. 
Prior to the emergency amendment, the presence of any one of the 
factors enumerated in the application note would trigger the financial 
institutions enhancement under Sec.  2B1.1(b)(12)(B). Under the 
amendment, the application note to the financial institutions 
enhancement sets forth a non-exhaustive list of factors that the court 
shall consider in determining whether the offense substantially 
jeopardized the safety and soundness of a financial institution. The 
list of factors that the court shall consider when applying this 
enhancement includes references to insolvency, substantially reducing 
benefits to pensioners and insureds, and an inability to refund fully 
any deposit, payment, or investment on demand.
    The second part added to Sec.  2B1.1(b)(12)(B) by the amendment 
applies to offenses that substantially endangered the solvency or 
financial security of 100 or more victims, regardless of whether a 
publicly traded company or other organization was affected by the 
offense. The Commission concluded that the specificity of the directive 
in section 805(a)(4) required an enhancement focused specifically on 
conduct that endangers the financial security of individual victims. 
Thus, use of this part of the enhancement will be appropriate in cases 
in which there is sufficient evidence for the court to determine that 
the amount of loss suffered by individual victims of the offense 
substantially endangered the solvency or financial security of those 
victims. The Commission also determined that the enhancement provided 
in Sec.  2B1.1(b)(12)(B) shall apply cumulatively with the enhancement 
at Sec.  2B1.1(b)(2), which is based solely on the number of victims 
involved in the offense, to reflect the particularly acute harm 
suffered by victims of offenses to which the new parts of subsection 
(b)(12)(B) apply. To account for the overlapping nature of such conduct 
in some cases, however, the Commission added a provision at subsection 
(b)(12)(C) that limits the cumulative impact of subsections (b)(2) and 
(b)(12)(B) to eight levels, except for application of the minimum 
offense level of level 24.
    Fifth, the amendment addresses the directive contained at section 
1104(a)(2) of the Act to ``consider the promulgation of new sentencing 
guidelines or amendments to existing sentencing guidelines to provide 
an enhancement for officers or directors of publicly traded 
corporations who commit fraud and related offenses.'' The emergency 
amendment implemented this directive by providing a new, four level 
enhancement that applies if the offense involved a violation of 
securities law and, at the time of the offense, the defendant was an 
officer or director of a publicly traded company.
    The amendment expands the scope of this enhancement to cover 
registered brokers and dealers, associated persons of a broker or 
dealer, investment advisers, and associated persons of an investment 
adviser. The amendment also expands the scope of this enhancement to 
apply if the offense involves a violation of commodities law and, at 
the time of the offense, the defendant was an officer or director of a 
futures commission merchant or introducing broker, a commodities 
trading advisor, or a commodity pool operator. The Commission concluded 
that a four level enhancement appropriately reflects the culpability of 
offenders who occupy such positions and who are subject to heightened 
fiduciary duties imposed by securities law or commodities law similar 
to duties imposed on officers and directors of publicly traded 
corporations. Accordingly, the court is not required to determine 
specifically whether the defendant abused a position of trust in order 
for the enhancement to apply, and a corresponding application note 
provides that, in cases in which the new, four level enhancement 
applies, the existing two level enhancement for abuse of position of 
trust at Sec.  3B1.3 (Abuse of Position of Trust or Use of Special 
Skill) shall not apply.
    The corresponding application note also expressly provides that the 
enhancement would apply regardless of whether the defendant was 
convicted under a specific securities fraud or commodities fraud 
statute (e.g., 18 U.S.C. 1348, a new offense created by the Act 
specifically prohibiting securities fraud) or under a general fraud 
statute (e.g., 18 U.S.C. 1341, prohibiting mail fraud), provided that 
the offense involved a violation of ``securities law'' or ``commodities 
law'' as defined in the application note.
    Sixth, the amendment modifies Sec.  2J1.2 to address the directives 
pertaining to obstruction of justice offenses contained in sections 805 
and 1104 of the Act. Specifically, section 805(a) of the Act directs 
the Commission to ensure that the base offense level and existing 
enhancements in Sec.  2J1.2 are sufficient to deter and punish 
obstruction of justice offenses generally, and specifically are 
adequate in cases involving the destruction, alteration, or fabrication 
of a large amount of evidence, a large number of participants, the 
selection of evidence that is particularly probative or essential to 
the investigation, more than minimal planning, or abuse of a special 
skill or a position of trust. Section 1104(b) of the Act further 
directs the Commission to ensure that the ``guideline offense levels 
and enhancements for an obstruction of justice offense are adequate in 
cases where documents or other physical evidence are actually destroyed 
or fabricated.''
    The amendment implements these directives by making two 
modifications to Sec.  2J1.2. First, the amendment increases the base 
offense level in Sec.  2J1.2 from level 12 to level 14. Second, the 
amendment adds a new two level enhancement to Sec.  2J1.2. This 
enhancement applies if the offense (1)

[[Page 26966]]

involved the destruction, alteration, or fabrication of a substantial 
number of records, documents or tangible objects; (2) involved the 
selection of any essential or especially probative record, document, or 
tangible object to destroy or alter; or (3) was otherwise extensive in 
scope, planning, or preparation. The amendment also adds an upward 
departure provision for offenses sentenced under Sec.  2J1.2 that 
involve extreme acts of violence, for example, retaliating against a 
government witness by throwing acid in the witness's face. The 
Commission determined that existing adjustments in Chapter Three for 
aggravating role, Sec.  3B1.1, and abuse of position of trust or use of 
special skill, Sec.  3B1.3, adequately account for those particular 
factors described in section 805(a) of the Act.
    Seventh, the amendment also increases the base offense level in the 
perjury guideline, Sec.  2J1.3, from level 12 to level 14 in order to 
maintain the longstanding proportional relationship between the offense 
levels provided in the guidelines for perjury and obstruction of 
justice.
    Eighth, the amendment addresses new offenses created by the Act. 
Section 1520 of title 18, United States Code, relating to destruction 
of corporate audit records, is referenced to Sec.  2E5.3. Section 1520 
provides a statutory maximum penalty of ten years' imprisonment for 
knowing and willful violations of document maintenance requirements as 
set forth in that section or in rules or regulations to be promulgated 
by the Securities and Exchange Commission pursuant to that section. The 
amendment also expands the existing cross reference in Sec.  
2E5.3(a)(2) specifically to cover fraud and obstruction of justice 
offenses. Accordingly, if a defendant violated 18 U.S.C. 1520 in order 
to obstruct justice, the cross reference provision in Sec.  2E5.3 
requires the court to apply Sec.  2J1.2 instead of Sec.  2E5.3. Other 
new offenses are listed in Appendix A (Statutory Index), as well as in 
the statutory provisions of the relevant guidelines.
    Finally, the amendment amends the contempt guideline, Sec.  2J1.1, 
by adding an application note clarifying that (1) Sec.  2B1.1 is the 
most analogous guideline in a case involving a violation of a judicial 
order enjoining fraudulent behavior; and (2) the enhancement at Sec.  
2B1.1(b)(7)(C) (pertaining to a violation of a prior, specific judicial 
order) ordinarily would apply in such a case.
    3. Amendment: Section 2B1.1(b) is amended by inserting after 
subsection (b)(12) the following:
    ``(13)(A) (Apply the greatest) If the defendant was convicted of an 
offense under:
    (i) 18 U.S.C. 1030, and the offense involved (I) a computer system 
used to maintain or operate a critical infrastructure, or used by or 
for a government entity in furtherance of the administration of 
justice, national defense, or national security; or (II) an intent to 
obtain personal information, increase by 2 levels.
    (ii) 18 U.S.C. 1030(a)(5)(A)(i), increase by 4 levels.
    (iii) 18 U.S.C. 1030, and the offense caused a substantial 
disruption of a critical infrastructure, increase by 6 levels.
    (B) If subdivision (A)(iii) applies, and the offense level is less 
than level 24, increase to level 24.''.
    The Commentary to Sec.  2B1.1 captioned ``Statutory Provisions'' is 
amended by inserting ``, 2701'' after ``2332b(a)(1)''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 3(A)(v), as redesignated by Amendment 2, by striking 
subdivision (III) and inserting the following:
    ``(III) Offenses Under 18 U.S.C. 1030.--In the case of an offense 
under 18 U.S.C. 1030, actual loss includes the following pecuniary 
harm, regardless of whether such pecuniary harm was reasonably 
foreseeable: Any reasonable cost to any victim, including the cost of 
responding to an offense, conducting a damage assessment, and restoring 
the data, program, system, or information to its condition prior to the 
offense, and any revenue lost, cost incurred, or other damages incurred 
because of interruption of service.''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended by inserting before Note 13, as redesignated by Amendment 2, 
the following:
    ``12. Application of Subsection (b)(13).--
    (A) Definitions.--For purposes of subsection (b)(13):
    `Critical infrastructure' means systems and assets vital to 
national defense, national security, economic security, public health 
or safety, or any combination of those matters. A critical 
infrastructure may be publicly or privately owned. Examples of critical 
infrastructures include gas and oil production, storage, and delivery 
systems, water supply systems, telecommunications networks, electrical 
power delivery systems, financing and banking systems, emergency 
services (including medical, police, fire, and rescue services), 
transportation systems and services (including highways, mass transit, 
airlines, and airports), and government operations that provide 
essential services to the public.
    `Government entity' has the meaning given that term in 18 U.S.C. 
1030(e)(9).
    `Personal information' means sensitive or private information 
(including such information in the possession of a third party), 
including (i) medical records; (ii) wills; (iii) diaries; (iv) private 
correspondence, including e-mail; (v) financial records; (vi) 
photographs of a sensitive or private nature; or (vii) similar 
information.
    (B) Subsection (b)(13)(iii).--If the same conduct that forms the 
basis for an enhancement under subsection (b)(13)(iii) is the only 
conduct that forms the basis for an enhancement under subsection 
(b)(12)(B), do not apply the enhancement under subsection 
(b)(12)(B).''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 18, as redesignated by Amendment 2, by adding at the 
end of subdivision (A)(ii) the following:
    ``An upward departure would be warranted, for example, in an 18 
U.S.C. 1030 offense involving damage to a protected computer, if, as a 
result of that offense, death resulted.'';

by redesignating subdivision (B) as subdivision (C); and by inserting 
after subdivision (A) the following:
    ``(B) Upward Departure for Debilitating Impact on a Critical 
Infrastructure.--An upward departure would be warranted in a case in 
which subsection (b)(13)(iii) applies and the disruption to the 
critical infrastructure(s) is so substantial as to have a debilitating 
impact on national security, national economic security, national 
public health or safety, or any combination of those matters.''.
    The Commentary to Sec.  2B1.1 captioned ``Background'' is amended 
by adding at the end the following paragraph:
    ``Subsection (b)(13) implements the directive in section 225(b) of 
Public Law 107-296. The minimum offense level of level 24 provided in 
subsection (b)(13)(B) for an offense that resulted in a substantial 
disruption of a critical infrastructure reflects the serious impact 
such an offense could have on national security, national economic 
security, national public health or safety, or a combination of any of 
these matters.''.
    Section 2B2.3(b)(1) is amended by striking ``or '' after 
``airport;'' and by inserting after ``residence'' the following:
    ``; or (F) on a computer system used (i) to maintain or operate a 
critical infrastructure; or (ii) by or for a government entity in 
furtherance of the administration of justice, national defense, or 
national security''.

[[Page 26967]]

    The Commentary to Sec.  2B2.3 captioned ``Application Notes'' is 
amended in Note 1 by inserting after ``United States Code.'' the 
following paragraph:
    `` `Critical infrastructure' means systems and assets vital to 
national defense, national security, economic security, public health 
or safety, or any combination of those matters. A critical 
infrastructure may be publicly or privately owned. Examples of critical 
infrastructures include gas and oil production, storage, and delivery 
systems, water supply systems, telecommunications networks, electrical 
power delivery systems, financing and banking systems, emergency 
services (including medical, police, fire, and rescue services), 
transportation systems and services (including highways, mass transit, 
airlines, and airports), and government operations that provide 
essential services to the public.'';

and by inserting after ``Instructions).'' the following paragraph:
    `Government entity' has the meaning given that term in 18 U.S.C. 
1030(e)(9).''.
    Section 2B3.2(b)(3)(B) is amended to read as follows:
    ``(B) If (i) the offense involved preparation to carry out a threat 
of (I) death; (II) serious bodily injury; (III) kidnapping; (IV) 
product tampering; or (V) damage to a computer system used to maintain 
or operate a critical infrastructure, or by or for a government entity 
in furtherance of the administration of justice, national defense, or 
national security; or (ii) the participant(s) otherwise demonstrated 
the ability to carry out a threat described in any of subdivisions 
(i)(I) through (i)(V), increase by 3 levels.''.
    The Commentary to Sec.  2B3.2 captioned ``Application Notes'' is 
amended by striking Note 1 and inserting the following:
    ``1. Definitions.--For purposes of this guideline:
    `Abducted,' `bodily injury,' `brandished,' `dangerous weapon,' 
`firearm,' `otherwise used,' `permanent or life-threatening bodily 
injury,' `physically restrained,' and `serious bodily injury' have the 
meaning given those terms in Application Note 1 of the Commentary to 
Sec.  1B1.1 (Application Instructions).
    `Critical infrastructure' means systems and assets vital to 
national defense, national security, economic security, public health 
or safety, or any combination of those matters. A critical 
infrastructure may be publicly or privately owned. Examples of critical 
infrastructures include gas and oil production, storage, and delivery 
systems, water supply systems, telecommunications networks, electrical 
power delivery systems, financing and banking systems, emergency 
services (including medical, police, fire, and rescue services), 
transportation systems and services (including highways, mass transit, 
airlines, and airports), and government operations that provide 
essential services to the public.
    `Government entity' has the meaning given that term in 18 U.S.C. 
1030(e)(9).''.
    The Commentary to Sec.  2M3.2 captioned ``Statutory Provisions'' is 
amended by inserting ``Sec.  '' before ``793(a)''; and by inserting ``, 
1030(a)(1)'' after ``(g)''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. 2512 the following:
    ``18 U.S.C. 2701 2B1.1''.
    Reason for Amendment: This amendment addresses the serious harm and 
invasion of privacy that can result from offenses involving the misuse 
of, or damage to, computers. It implements the directive in section 
225(b) of the Homeland Security Act of 2002, Pub. L. 107-296, which 
required the Commission to review, and if appropriate amend, the 
guidelines and policy statements applicable to persons convicted of 
offenses under 18 U.S.C. 1030 (fraud and related activity in connection 
with computers) to ensure that the guidelines and policy statements 
reflect the serious nature and growing incidence of such offenses and 
the need for an effective deterrent and appropriate punishment. The 
directive further requires the Commission to consider the extent to 
which eight specific factors were or were not accounted for by the 
guidelines. The amendment responds to the directive by making several 
changes to Sec. 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), 2B2.3 (Trespass), and 2B3.2 (Extortion by Force or 
Threat of Injury or Serious Damage). These changes are designed to 
supplement existing guidelines and policy statements and thereby ensure 
that offenses under 18 U.S.C. 1030 are adequately addressed and 
punished.
    First, the amendment adds a new specific offense characteristic at 
Sec.  2B1.1(b)(13) with three alternative enhancements of two, four, 
and six levels. The first enhancement provides a two level increase for 
convictions under 18 U.S.C. 1030 that involve either (1) a computer 
system used to maintain or operate a critical infrastructure or used in 
furtherance of the administration of justice, national defense, or 
national security; or (2) an intent to obtain private personal 
information. The second enhancement provides a four level increase for 
a conviction under 18 U.S.C. 1030(a)(5)(A)(i), which requires a 
heightened showing of intent to cause damage. The third enhancement 
provides a six level increase, with a minimum offense level of level 
24, for a conviction under 18 U.S.C. 1030 that resulted in a 
substantial disruption of a critical infrastructure. The graduated 
levels ensure incremental punishment for increasingly serious conduct, 
and were chosen in recognition of the fact that conduct supporting 
application of a more serious enhancement frequently will encompass 
behavior relevant to a lesser enhancement as well. Accordingly, the 
most serious applicable enhancement will apply in any particular case.
    The minimum offense level of level 24 applicable to the third such 
enhancement was chosen to maintain parity with the minimum offense 
level that applies to an offense that substantially jeopardized the 
safety and soundness of a financial institution, substantially 
endangered the solvency or financial security of a publicly traded 
company or an organization of at least 1,000 employees, or 
substantially endangered the solvency or financial security of 100 or 
more victims. See Sec.  2B1.1(b)(12)(B). Because of the potential 
overlap in certain cases, the commentary provides that the enhancement 
at Sec.  2B1.1(b)(12)(B) will not apply in a case in which the conduct 
supporting the six level critical infrastructure enhancement is the 
only conduct that forms the basis for the Sec.  2B1.1(b)(12)(B) 
enhancement.
    The minimum offense level of level 24 applicable to the third 
enhancement also reflects the fact that some offenders to whom the 
enhancement may apply will be subject to a statutory maximum penalty of 
five years' imprisonment, i.e., those convicted of an offense under 18 
U.S.C. 1030(a)(5)(A)(ii). To ensure that the most egregious cases 
involving critical infrastructure are adequately addressed, the 
amendment also provides an encouraged upward departure for cases in 
which the disruption of the critical infrastructure has a debilitating 
impact on national security, national economic security, national 
public health or safety, or any combination of these matters.

[[Page 26968]]

    A definition of critical infrastructure is provided in the 
commentary. This definition is derived in part from the definition of 
critical infrastructure in the USA PATRIOT Act (see Pub. L. 107-56, 
section 1016; 42 U.S.C. 5195c(e)) but was modified to ensure that the 
enhancement will apply to substantial disruptions of critical 
infrastructure that are regional, rather than national, in scope. 
Examples of critical infrastructures are provided.
    Second, the proposed amendment modifies the rule of construction 
relating to the calculation of loss in protected computer cases. This 
change was made to incorporate more fully the statutory definition of 
loss at 18 U.S.C. 1030(e)(11), added as part of the USA PATRIOT Act, 
and to clarify its application to all 18 U.S.C. 1030 offenses sentenced 
under Sec.  2B1.1.
    Third, the proposed amendment expands the upward departure note in 
Sec.  2B1.1. That note provides that an upward departure may be 
warranted if an offense caused or risked substantial non-monetary harm, 
including physical harm. The amendment adds a provision that expressly 
states that an upward departure would be warranted for an offense under 
18 U.S.C. 1030 involving damage to a protected computer that results in 
death.
    Fourth, the amendment modifies Sec.  2B2.3, to which 18 U.S.C. 
1030(a)(3) (misdemeanor trespass on a government computer) offenses are 
referenced, and Sec.  2B3.2, to which 18 U.S.C. 1030(a)(7) 
(extortionate demand to damage protected computer) offenses are 
referenced, to provide enhancements relating to computer systems used 
to maintain or operate a critical infrastructure, or by or for a 
government entity in furtherance of the administration of justice, 
national defense, or national security. The amendment expands the scope 
of existing enhancements to ensure that trespasses and extortions 
involving these types of important computer systems are addressed.
    Finally, the amendment references offenses under 18 U.S.C. 2701 
(unlawful access to stored communications) to Sec.  2B1.1. Prior to the 
Act, a first offense under section 2701 was classified as a misdemeanor 
offense, and the guidelines did not reference the statute in Appendix A 
(Statutory Index). Given that the Act increased the penalties available 
for 18 U.S.C. 2701 offenses, the amendment references the statute in 
Appendix A. Section 2701 offenses are referenced to Sec.  2B1.1 because 
such offenses involve the obtaining, altering, or denial of authorized 
access to stored wire or electronic communications, conduct that is 
related to fraud, theft, and property damage, which are covered by 
Sec.  2B1.1.
    4. Amendment: The Commentary to Sec.  2B1.1 captioned ``Application 
Notes'', as amended by Amendment 3, is further amended in subdivision 
(A)(ii) of Note 18, as redesignated by Amendment 2, by adding at the 
end the following:
    ``An upward departure also 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.''.
    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.  2K1.3 captioned ``Application Notes'' is 
amended in Note 11 by adding at the end the following new paragraph:
    ``In addition, for purposes of subsection (c)(1)(A), ``that other 
offense'' means, with respect to an offense under 18 U.S.C. 842(p)(2), 
the underlying Federal crime of violence.''.
    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)(2) is amended to read as follows:
    ``(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''.
    Section 2M5.3(b)(1) is amended in subdivision (C) by striking 
``or'' after ``explosives;''; in subdivision (D) by inserting ``the 
intent,'' after ``with'' and by inserting a comma after ``knowledge''; 
and by inserting ``; or (E) funds or other material support or 
resources with the intent, knowledge, or reason to believe they are to 
be used to commit or assist in the commission of a violent act'' after 
``(A) through (C)''.
    The Commentary to Sec.  2M5.3 captioned ``Statutory Provision'' is 
amended by striking ``Provision'' and inserting ``Provisions''; by 
inserting ``Sec.  '' before ``2339B''; and 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.  2M5.3 captioned ``Application Notes'' is 
amended in Note 2(A) by inserting ``funds or other'' after ``volume of 
the''.
    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

[[Page 26969]]

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 ``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)),'' 
after ``842(p)(2)''; and by striking ``, but including any biological 
agent, toxin, or vector''.
    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)''.
    Chapter Two, Part Q, is amended by striking Sec.  2Q1.4 in its 
entirety and inserting the following new guideline:
    ``Sec.  2Q1.4. Tampering or Attempted Tampering with a Public Water 
System; Threatening to Tamper with a Public Water System
    (a) Base Offense Level (Apply the greatest):
    (1) 26;
    (2) 22, if the offense involved (A) a threat to tamper with a 
public water system; and (B) any conduct evidencing an intent to carry 
out the threat; or
    (3) 16, if the offense involved a threat to tamper with a public 
water system but did not involve any conduct evidencing an intent to 
carry out the threat.
    (b) Specific Offense Characteristics
    (1) If (A) any victim sustained permanent or life-threatening 
bodily injury, increase by 4 levels; (B) any victim sustained serious 
bodily injury, increase by 2 levels; or (C) the degree of injury is 
between that specified in subdivisions (A) and (B), increase by 3 
levels.
    (2) If the offense resulted in (A) 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.
    (3) If the offense resulted in an ongoing, continuous, or 
repetitive release of a contaminant into a public water system or 
lasted for a substantial period of time, increase by 2 levels.
    (c) Cross References
    (1) If the offense resulted in death, apply Sec.  2A1.1 (First 
Degree Murder) if the death was caused intentionally or knowingly, or 
Sec.  2A1.2 (Second Degree Murder) in any other case, if the resulting 
offense level is greater than that determined above.
    (2) If the offense was tantamount to attempted murder, apply Sec.  
2A2.1 (Assault with Intent to Commit Murder; Attempted Murder) if the 
resulting offense level is greater than that determined above.
    (3) If the offense involved extortion, apply Sec.  2B3.2 (Extortion 
by Force or Threat of Injury or Serious Damage) if the resulting 
offense level is greater than that determined above.
    (d) Special Instruction
    (1) If 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, Chapter Three, Part D (Multiple Counts) shall 
be applied as if the defendant had been convicted of a separate count 
for each such victim.
Commentary
    Statutory Provision: 42 U.S.C. 300i-1.
    Application Notes:
    1. Definitions.--For purposes of this guideline, `permanent or 
life-threatening bodily injury' and `serious bodily injury' have the 
meaning given those terms in Note 1 of the Commentary to Sec.  1B1.1 
(Application Instructions).
    2. 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).
    3. Departure Provisions.--
    (A) Downward Departure Provision.--The base offense level in 
subsection (a)(1) reflects that offenses covered by that subsection 
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 such an offense did not cause a risk of death or 
serious bodily injury, and neither caused nor was intended to cause 
bodily injury, a downward departure may be warranted.
    (B) Upward Departure Provisions.--If the offense 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 would be warranted. See 
Application Note 4 of Sec.  3A1.4 (Terrorism).''.
    Chapter Two, Part Q, is amended by striking Sec.  2Q1.5 in its 
entirety.
    Section Sec.  2S1.1(b)(1)(B)(iii) is amended by striking 
``terrorism,''.
    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''.
    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''.
    The Commentary to Sec.  2X2.1 captioned ``Statutory Provisions'' is 
amended by inserting ``, 2339C(a)(1)(A)'' after ``2339A''.
    The Commentary to Sec.  2X2.1 captioned ``Application Notes'' is 
amended in Note 1 by inserting ``or Sec.  2339C(a)(1)(A)'' after 
``2339A''; and by inserting ``, or provided or collected funds for,'' 
after ``supported''.
    Section 2X3.1(a) is amended to read as follows:
    ``(a) Base Offense Level:
    (1) 6 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 be not 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 harboring a person who committed any 
offense listed in 18

[[Page 26970]]

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). In such a case, the base offense level under this 
guideline shall be not more than level 30, as provided in subdivision 
(A).''.
    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 or resources 
were concealed or disguised'' after ``that offense)''.
    Appendix A (Statutory Index) is amended in the line referenced to 
18 U.S.C. 1960 by inserting ``2S1.1,'' before ``2S1.3'';

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'';

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'';

and in the line referenced to 42 U.S.C. 300i-1 by striking ``, 2Q1.5''.
    Reason for Amendment: This amendment is a three part amendment that 
(1) further 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; (2) responds 
to the Public Health Security and Bioterrorism Preparedness and 
Response Act of 2002, Pub. L. 107-188; and (3) responds to the 
Terrorist Bombings Preparedness and Response Act of 2002, Pub. L. 107-
197.
    First, this amendment makes changes to the money laundering and 
transactions structuring guidelines to complete work begun in 2002 to 
address the provisions of the USA PATRIOT Act. The amendment eliminates 
the six level enhancement for terrorism in Sec.  2S1.1 (Laundering of 
Monetary Instruments; Engaging in Monetary Transactions in Property 
Derived from Unlawful Activity) because such conduct is adequately 
accounted for by the terrorism adjustment at Sec.  3A1.4 (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 
defendant knew or believed that any of the laundered funds were the 
proceeds of, or were intended to promote, an offense involving 
terrorism, as defined in Sec.  3A1.4, that adjustment will apply. This 
amendment also provides for the treatment of certain offenses under 18 
U.S.C. 1960. The amendment changes Appendix A (Statutory Index) to 
refer violations of 18 U.S.C. 1960 to both Sec. Sec.  2S1.1 and 2S1.3 
(Structuring Transactions to Evade Reporting Requirements; Failure to 
Report Case or Monetary Transactions; Failure to File Currency and 
Monetary Instrument Report; Knowingly Filing False Reports; Bulk Cash 
Smuggling; Establishing or Maintaining Prohibited Accounts). Referring 
violations of 18 U.S.C. 1960(b)(1)(C) to Sec.  2S1.1 is appropriate 
because the essence of this offense is money laundering, rather than 
structuring transactions to evade reporting requirements.
    The amendment also raises the maximum offense level in Sec.  2X3.1 
(Accessory After the Fact) from level 20 to level 30 for offenses in 
which the conduct involves harboring or concealing a fugitive involved 
in a terrorism offense. The Commission determined that the heightened 
maximum offense level of level 30 is appropriate for offenses involving 
the harboring of terrorists because of the relative seriousness of 
those offenses. Specifically, the heightened maximum offense level 
applies in any case in which the defendant is convicted under 18 U.S.C. 
2339 or 2339A or in which the conduct involved harboring a person who 
committed any offense listed under those statutes, 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).
    Second, the amendment responds to the Public Health Security and 
Bioterrorism Preparedness and Response Act of 2002. The amendment 
refers certain new offenses involving biological agents and toxins to 
the guideline covering nuclear, biological, and chemical weapons and 
materials, Sec.  2M6.1 (Unlawful Production, Development, Acquisition, 
Stockpiling, Alteration, Use, Transfer, or Possession of Nuclear 
Material, Weapons, or Facilities, Biological Agents, Toxins, or 
Delivery Systems, Chemical Weapons, or Other Weapons of Mass 
Destruction; Attempt or Conspiracy).
    The amendment also responds to amendments made to the Safe Drinking 
Water Act (42 U.S.C. 300i-1(a)) made by section 403 of the Public 
Health Security and Bioterrorism Preparedness and Response Act of 2002. 
Section 1432(a) of the Safe Drinking Water Act prohibits any person 
from tampering with a public water system. The statutory maximum 
penalty was increased from five years' imprisonment to 20 years' 
imprisonment. Section 1432(b) of the Act prohibits anyone from 
attempting or threatening to tamper with a public water system. The 
statutory maximum penalty was increased from three years' imprisonment 
to ten years' imprisonment.
    The amendment consolidates Sec. Sec.  2Q1.5 (Threatened Tampering 
with Public Water System) and 2Q1.4 (Tampering or Attempted Tampering 
with Public Water System). This consolidation reflects the similar 
manner in which threats to carry out a nuclear, biological, or chemical 
weapons offense are treated under Sec.  2M6.1. Three alternative base 
offense levels are provided for the substantive offense and for a 
threat to carry out the substantive offense, either accompanied or 
unaccompanied by other conduct evidencing an intent to carry out the 
threat.
    The amendment also increases the base offense level for offenses 
involving tampering and threatened tampering with a public water 
system. The amendment increases the base offense level for tampering 
with a public water system from level 18 to level 26. The six level 
enhancement for the risk of death or serious bodily injury (in the 
predecessor guideline) is incorporated into the base offense level, as 
are two levels for bodily injury (similar to the treatment of this 
aggravated conduct in the consumer product tampering guideline). A 
graduated enhancement for serious or life-threatening bodily injury, 
modeled after the nuclear, biological, and chemical guideline and the 
consumer product tampering guideline, is added. Likewise, the base 
offense level for threatening to tamper with a public water system, 
without conduct evidencing an intent to carry out the threat, is 
increased from level 10 to level 16. A base offense level of level 22 
is provided if there is conduct evidencing an intent to carry out the 
threat. For point of comparison, the existing base offense levels for 
threatening communications under Sec.  2A6.1 (Threatening or Harassing 
Communications) 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 for threatened 
tampering of a public water system are

[[Page 26971]]

provided 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 Act 
of 2002. Additionally, the enhancement in subsection (b)(2) regarding 
the disruption of the public water system has been expanded slightly to 
make it consistent with similar enhancements in other related 
guidelines, such as the nuclear, biological, and chemical guideline, 
Sec.  2M6.1.
    This amendment adds an invited upward departure provision in 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), to 
account for aggravating conduct that may occur in connection with an 
animal enterprise offense under 18 U.S.C. 43. 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 
amendment adds an invited upward departure provision in the commentary 
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.
    Third, the amendment amends Appendix A (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, and provides conforming amendments within a number of 
Chapter Two guidelines to incorporate more fully the new offenses into 
the offense guidelines. 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 (1) with the intent to cause death or serious 
bodily injury, or (2) 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 (Arson; Property Damage by 
Use of Explosives) and 2M6.1. The amendment refers this new offense to 
those guidelines as well. In addition, the amendment amends the 
alternative base offense levels in 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''.
    Section 202 of the Act created a new offense at 18 U.S.C. 2339C. 
The amendment refers the new offense at 18 U.S.C. 2339C(1)(A) to Sec.  
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 
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 also made in Sec.  2X2.1 to provide a definition for 
the ``underlying offense'' that is aided and abetted.
    The amendment also refers the new offense at 18 U.S.C. 
2339C(a)(1)(B) to Sec.  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 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 appropriately is referenced to 
Sec.  2M5.3. The amendment expands Sec.  2M5.3 to include not only 
designated foreign terrorist organizations but other terrorists as 
well.
    Additionally, 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 (1) provided in violation of 18 U.S.C. 2339B, 
or (2) 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 amendment references offenses under 18 
U.S.C. 2339C(c)(2)(A) to Sec.  2X3.1 (Accessory After the Fact), 
because 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 
made in Sec.  2X3.1 to provide a definition of the ``underlying 
offense'' to which the defendant is an accessory.
    The amendment references offenses under 18 U.S.C. 2339C(c)(2)(B) to 
Sec. Sec.  2M5.3 and 2X3.1. To the extent the offense involved 
knowingly concealing or disguising the nature, location, source, 
ownership, or control of any funds knowing or intending that they were 
provided or collected in violation of 18 U.S.C. 2339C(a)(1)(A), the 
offense should be sentenced under Sec.  2X3.1. This is because the 
concealment occurs with respect to funds the defendant knows are 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 funds knowing or intending that 
they were provided or collected in violation of 18 U.S.C. 
2339C(a)(1)(B), the offense should be sentenced under Sec.  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 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 added to the Statutory Provisions 
of Sec. Sec.  2M5.3 and 2X3.1.
    Finally, an amendment is made to Sec.  2K1.3 (Unlawful Receipt, 
Possession, or Transportation of Explosive Materials; Prohibited 
Transaction Involving Explosive Materials) to add an additional base 
offense level of level 18 for certain offenses committed under 18 
U.S.C. 842(p)(2) involving explosives, destructive devices, or weapons 
of mass destruction. The statute is referenced in Appendix A to 
Sec. Sec.  2K1.3 and 2M6.1. The applicable offense levels at Sec.  
2M6.1 are

[[Page 26972]]

levels 42 and 28. The applicable base offense level at Sec.  2K1.3 is 
level 12. The base offense level of level 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 any 
explosive, incendiary, or poison gas (1) bomb; (2) grenade; (3) rocket 
having a propellant charge of more than four ounces; (4) missile having 
an explosive or incendiary charge of more than one-quarter ounce; (5) 
mine; or (6) device similar to any of the devices described in the 
preceding clauses.
    The amendment 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. 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. Alternatively, the 
cross reference at subsection (c)(1) references such cases either to 
Sec.  2X1.1 (Attempt, Solicitation, or Conspiracy (Not Covered by a 
Specific Guideline)), or to the most analogous homicide guideline if 
death resulted, if the resulting offense level is greater. 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.
    5. Amendment: Part C of Chapter Two and Sec. Sec.  3D1.2 and 5E1.2, 
effective January 25, 2003 (see USSC Guidelines Manual Supplement to 
the 2002 Supplement to Appendix C, Amendment 648), are repromulgated 
without change. Appendix A, effective January 25, 2003 (see USSC 
Guidelines Manual Supplement to the 2002 Supplement to Appendix C, 
Amendments 647 and 648; see also this document, Amendment 2), is 
repromulgated without change.
    Reason for Amendment: The Commission promulgated an emergency 
amendment addressing the directive from Congress contained in the 
Bipartisan Campaign Reform Act of 2002, Pub. L. 107-155, (the 
``BCRA''), with an effective date of January 25, 2003. (See Amendment 
648.) This amendment repromulgates without change the emergency 
amendment as a permanent amendment.
    This amendment implements the directive from Congress contained in 
the BCRA to the effect that the Commission ``promulgate a guideline, or 
amend an existing guideline * * *, for penalties for violations of the 
Federal Election Campaign Act of 1971 [the ``FECA''] and related 
election laws * * *.'' The BCRA significantly increased statutory 
penalties for campaign finance crimes, formerly misdemeanors under the 
FECA. The new statutory maximum term of imprisonment for even the least 
serious of these offenses is now two years, and for more serious 
offenses, the maximum term of imprisonment is five years.
    To punish these offenses effectively, the Commission chose to 
create a new guideline at Sec.  2C1.8 (Making, Receiving, or Failing to 
Report a Contribution, Donation, or Expenditure in Violation of the 
Federal Election Campaign Act; Fraudulently Misrepresenting Campaign 
Authority; Soliciting or Receiving a Donation in Connection with an 
Election While on Certain Federal Property). The Commission opted 
against simply amending an existing guideline because it determined 
after review that the characteristics of election violation cases did 
not bear sufficient similarity to cases sentenced under any existing 
guideline. The offenses that will be sentenced under Sec.  2C1.8 
include: violations of the statutory prohibitions against ``soft 
money'' (2 U.S.C. 441i); restrictions on ``hard money'' contributions 
(2 U.S.C. 441a); contributions by foreign nationals (2 U.S.C. 441e); 
restrictions on ``electioneering communications'' (as defined in 2 
U.S.C. 434(f)(3)(C)); certain fraudulent misrepresentations (2 U.S.C. 
441h); and ``conduit contributions'' (2 U.S.C. 441f).
    The new guideline has a base offense level of level 8, which 
reflects the fact that these offenses, while they are somewhat similar 
to fraud offenses (sentenced under 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) at a base offense level of level 6), 
nevertheless are more serious due to the additional harm, or the 
potential harm, of corrupting the elective process.
    The new guideline provides five specific offense characteristics to 
ensure appropriate penalty enhancements for aggravating conduct that 
may occur during the commission of certain campaign finance offenses. 
First, the new guideline provides a specific offense characteristic, at 
Sec.  2C1.8(b)(1), that uses the fraud loss table in Sec.  2B1.1 
incrementally to increase the offense level in proportion to the 
monetary amounts involved in the illegal transactions. This both 
assures proportionality with penalties for fraud offenses and responds 
to Congress' directive to provide an enhancement for ``a large 
aggregate amount of illegal contributions.''
    Second, the new guideline provides alternative enhancements, at 
Sec.  2C1.8(b)(2), if the offense involved a foreign national (two 
levels) or a foreign government (four levels). These enhancements 
respond to another specific directive in the BCRA and reflect the 
seriousness of attempts by foreign entities to tamper with the United 
States' election processes.
    Third, the new guideline provides alternative enhancements of two 
levels each, at Sec.  2C1.8(b)(3), when the offense involves either 
``governmental funds,'' defined broadly to include federal, state, or 
local funds, or an intent to derive ``a specific, identifiable non-
monetary Federal benefit'' (e.g., a presidential pardon). Each of these 
enhancements responds to specific directives of the BCRA.
    Fourth, the new guideline provides a two level enhancement, at 
subsection (b)(4), when the offender engages in ``30 or more illegal 
transactions.'' After a review of all campaign finance cases in the 
Commission's datafile, the Commission chose 30 transactions as the 
number best illustrative of a ``large number'' in that context. This 
enhancement also responds to a specific directive in the BCRA to the 
effect that the Commission provide enhanced sentencing for cases 
involving ``a large number of illegal transactions.''
    Fifth, the new guideline provides a four level enhancement, at 
Sec.  2C1.8(b)(5), if the offense involves the use of ``intimidation, 
threat of pecuniary or other harm, or coercion.'' This enhancement 
responds to information, received from the Federal Election Commission 
and the Public Integrity Section of the Department of Justice, which 
characterizes offenses of this type as some of the most aggravated 
offenses committed under the FECA.
    The new guideline also provides a cross reference, at subsection 
(c), which directs the sentencing court to apply either Sec.  2C1.1 
(Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under 
Color of Official Right) or Sec.  2C1.2 (Offering, Giving, Soliciting, 
or Receiving a Gratuity), as appropriate,

[[Page 26973]]

if the offense involved a bribe or a gratuity and the resulting offense 
level would be greater than that determined under Sec.  2C1.8.
    Section 3D1.2 (Groups of Closely Related Counts) has been amended, 
consistent with the principles underlying the rules for grouping 
multiple counts of conviction, to include Sec.  2C1.8 offenses among 
those in which the offense level is determined largely on the basis of 
the total amount of harm or loss or some other measure of aggregate 
harm. (See Sec.  3D1.2(d)).
    Finally, Sec.  5E1.2 (Fines for Individual Defendants) has been 
amended specifically to reflect fine provisions unique to the FECA. 
This part of the amendment also provides that the defendant's 
participation in a conciliation agreement with the Federal Election 
Commission may be an appropriate factor for use in determining the 
specific fine within the applicable fine guideline range unless the 
defendant began negotiations with the Federal Election Commission only 
after the defendant became aware that the defendant was the subject of 
a criminal investigation.
    6. Amendment: Section 2D1.1(c) is amended in Note (B) of the 
``*Notes to Drug Quantity Table'' by adding at the end the following 
new paragraph:
    ``The term `Oxycodone (actual)' refers to the weight of the 
controlled substance, itself, contained in the pill, capsule, or 
mixture.''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 9 by striking ``or'' after ``amphetamine,''; and by 
inserting ``, or oxycodone'' after ``methamphetamine''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 10, in the Drug Equivalency Tables, in the subdivision 
captioned ``Schedule I or II Opiates*'' by striking ``1 gm of Oxycodone 
= 500 gm of marihuana'' and inserting ``1 gm of Oxycodone (actual) = 
6700 gm of marihuana''.
    Reason for Amendment: This amendment responds to proportionality 
issues in the sentencing of oxycodone trafficking offenses. Oxycodone 
is an opium alkaloid found in certain prescription pain relievers such 
as Percocet and OxyContin. This prescription drug generally is sold in 
pill form and, prior to this amendment, the sentencing guidelines 
established penalties for oxycodone trafficking based on the entire 
weight of the pill. The proportionality issues arise (1) because of the 
formulations of the different medicines; and (2) because different 
amounts of oxycodone are found in pills of identical weight.
    As an example of the first issue, the drug Percocet contains, in 
addition to oxycodone, the non-prescription pain reliever 
acetaminophen. The weight of the oxycodone component accounts for a 
very small proportion of the total weight of the pill. In contrast, the 
weight of the oxycodone accounts for a substantially greater proportion 
of the weight of an OxyContin pill. To illustrate this difference, a 
Percocet pill containing five milligrams (mg) of oxycodone weighs 
approximately 550 mg with oxycodone accounting for 0.9 percent of the 
total weight of the pill. By comparison, the weight of an OxyContin 
pill containing 10 mg of oxycodone is approximately 135 mg with 
oxycodone accounting for 7.4 percent of the total weight. Consequently, 
prior to this amendment, trafficking 364 Percocet pills or 1,481 
OxyContin pills resulted in the same five year sentence of 
imprisonment. Additionally, the total amount of the narcotic oxycodone 
involved in this example is vastly different depending on the drug. The 
364 Percocets produce 1.8 grams of actual oxycodone while the 1,481 
OxyContin pills produce 14.8 grams of oxycodone.
    The second issue results from differences in the formulation of 
OxyContin. Three different amounts of oxycodone (10, 20, and 40 mg) are 
contained in pills of identical weight (135 mg). As a result, prior to 
this amendment, an individual trafficking in a particular number of 
OxyContin pills would receive the same sentence regardless of the 
amount of oxycodone contained in the pills.
    To remedy these proportionality issues, the amendment changes 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) to provide sentences 
for oxycodone offenses using the weight of the actual oxycodone instead 
of calculating the weight of the entire pill. The amendment equates 1 
gram of actual oxycodone to 6,700 grams of marihuana. This equivalency 
keeps penalties for offenses involving 10 mg OxyContin pills identical 
to levels that existed prior to the amendment, substantially increases 
penalties for all other doses of OxyContin, and decreases somewhat the 
penalties for offenses involving Percocet.
    7. Amendment: Section 2L1.2(b)(1)(A)(vii) is amended by striking 
``committed for profit''.
    The Commentary to Sec.  2L1.2 captioned ``Application Notes'' is 
amended in Note 1 by striking subdivision (A)(iv) and inserting the 
following:
    ``(iv) Subsection (b)(1) does not apply to a conviction for an 
offense committed before the defendant was eighteen years of age unless 
such conviction is classified as an adult conviction under the laws of 
the jurisdiction in which the defendant was convicted.''.
    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' has the meaning given that term in 
section 101(a)(43)(N) of the Immigration and Nationality Act (8 U.S.C. 
1101(a)(43)(N)).
    (ii) `Child pornography offense' means (I) an offense described in 
18 U.S.C. 2251, 2251A, 2252, 2252A, or 2260; or (II) an offense under 
state or local 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, 
statutory rape, 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) `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 or local law consisting of conduct that 
would

[[Page 26974]]

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.
    (vi) `Human trafficking offense' means (I) any offense described in 
18 U.S.C. 1581, 1582, 1583, 1584, 1585, 1588, 1589, 1590, or 1591; or 
(II) an offense under state or local 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.
    (vii) `Sentence of imprisonment' has the meaning given that term in 
Application Note 2 and subsection (b) of Sec.  4A1.2 (Definitions and 
Instructions for Computing Criminal History), without regard to the 
date of the conviction. The length of the sentence of imprisonment 
includes any term of imprisonment given upon revocation of probation, 
parole, or supervised release.
    (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).''.
    Section 2L1.2 captioned ``Application Notes'' is amended by 
striking Note 2 and inserting the following:
    ``2. Definition of `Felony'.--For purposes of subsection (b)(1)(A), 
(B), and (D), `felony' means any federal, state, or local offense 
punishable by imprisonment for a term exceeding one year.''.
    Section 2L1.2 captioned ``Application Notes'' is amended by 
striking Notes 4 and 5; by redesignating Note 3 as Note 4; and by 
inserting after Note 2 the following:
    ``3. Application of Subsection (b)(1)(C).--
    (A) Definitions.--For purposes of subsection (b)(1)(C), `aggravated 
felony' has the meaning given that term in 8 U.S.C. 1101(a)(43), 
without regard to the date of conviction for the aggravated felony.
    (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).''.
    Section 2L1.2 captioned ``Application Notes'' is amended in Note 4, 
as redesignated by this amendment, by striking subdivision (B) and 
inserting the following:
    ``(B) `Three or more convictions' means at least three convictions 
for offenses that are not considered `related cases', as that term is 
defined in Application Note 3 of Sec.  4A1.2 (Definitions and 
Instructions for Computing Criminal History).''.
    Reason for Amendment: In 2001 the Commission comprehensively 
revised Sec.  2L1.2 (Unlawfully Entering or Remaining in the United 
States) to provide more graduated enhancements at subsection (b)(1) for 
illegal re-entrants previously deported after criminal convictions. In 
response to application issues raised by a number of judges, probation 
officers, defense attorneys, and prosecutors, particularly along the 
southwest border between the United States and Mexico, this amendment 
builds upon the 2001 amendment by clarifying the meaning of some of the 
terms used in Sec.  2L1.2(b)(1).
    First, the amendment adds commentary to define the following 
offenses: ``alien smuggling'', ``child pornography'', and ``human 
trafficking.'' Prior to the amendment, these offenses received a 16 
level increase but were not defined. The lack of definitions led to 
litigation regarding the meaning and scope of some of these terms. The 
Commission has determined that these offenses warrant application of 
the 16 level enhancement even though some of these offenses, as defined 
by the amendment, may not meet the statutory definition of an 
aggravated felony in 8 U.S.C. 1101(a)(43).
    The amendment provides a definition of ``alien smuggling offense'' 
in a manner consistent with the ``aggravated felony'' definition in 8 
U.S.C. 1101(a)(43)(N). This statutory definition excludes ``a first 
offense for which the alien has affirmatively shown that the alien 
committed the offense for the purpose of assisting, abetting, or aiding 
only the alien's spouse, child, or parent (and no other person)''. This 
definition generally is consistent with the guideline's previous 
terminology of ``alien smuggling offense committed for profit,'' and 
results in a 16 level increase only for the most serious of such 
offenses. The new definition also responds to concerns about whether an 
alien smuggling offense includes the offenses of harboring or 
transporting aliens. By explicitly incorporating the statutory 
definition of alien smuggling within the guideline definition, the 
amendment, in effect, adopts the Fifth Circuit's interpretation of 
``alien smuggling''. See United States v. Solis-Campozano, 312 F.3d 164 
(5th Cir. 2002) (holding that ``alien smuggling offense'' was not 
limited to the ``offense of alien smuggling'' but includes transporting 
aliens brought into the country as well).
    Second, the amendment adds commentary that clarifies the meaning of 
the term ``crime of violence'' by providing that the term ``means any 
of the following: Murder, manslaughter, kidnapping, aggravated assault, 
forcible sex offenses, statutory rape, 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.'' The previous definition often 
led to confusion over whether the specified offenses listed in that 
definition, particularly sexual abuse of a minor and residential 
burglary, also had to include as an element of the offense ``the use, 
attempted use, or threatened use of physical force against the person 
of another.'' The amended definition makes clear that the enumerated 
offenses are always classified as ``crimes of violence,'' regardless of 
whether the prior offense expressly has as an element the use, 
attempted use, or threatened use of physical force against the person 
of another.
    Third, the amendment adds commentary at Application Note 1(B)(vii) 
explaining that the term ``sentence of imprisonment'' has the meaning 
given that term in Application Note 2 and subsection (b) of Sec.  4A1.2 
(Definitions and Instructions for Computing Criminal History), without 
regard to the date of the conviction. The length of the sentence of 
imprisonment includes any term of imprisonment given upon revocation of 
probation, parole, or supervised release. The Commission's approach in 
clarifying this definition is consistent with the case law interpreting 
the term and the use of the term in Chapter Four of the guidelines. 
See, e.g., United States v. Moreno-Cisneros, 319 F.3d 456 (9th Cir. 
2003) (holding that the length of the sentence of imprisonment includes 
any term of imprisonment given upon revocation of probation, parole, or 
supervised release); United States v. Compian-Torres, 320 F.3d 514 (5th 
Cir. 2003) (same). Compare United States v. Hidalgo-Macias, 300 F.3d 
281 (2d Cir. 2002) (holding that the imposition of a sentence of 
imprisonment following revocation of probation is a modification of the 
original sentence and must be considered part of the sentence imposed 
for the original offense), with United States v. Rodriguez-Arreola, 313 
F.3d 1064 (8th Cir. 2002) (holding that the term ``sentence imposed'' 
when applied to an indeterminate sentence is the maximum term that a 
defendant may serve).
    Fourth, the amendment adds commentary providing that the 
enhancements in subsection (b)(1) do

[[Page 26975]]

not apply to a conviction for an offense committed before the defendant 
was eighteen years of age, unless such conviction is classified as an 
adult conviction under the laws of the jurisdiction in which the 
defendant was convicted. This provision is consistent with the approach 
in Chapter Four of the guidelines.
    The amendment also makes other minor technical and clarifying 
changes.
    8. Amendment: Chapter Three, Part B, is amended by adding at the 
end the following new guideline:

``Sec.  3B1.5. Use of Body Armor in Drug Trafficking Crimes and Crimes 
of Violence

    If--
    (1) The defendant was convicted of a drug trafficking crime or a 
crime of violence; and
    (2) (Apply the greater)--
    (A) The offense involved the use of body armor, increase by 2 
levels; or
    (B) The defendant used body armor during the commission of the 
offense, in preparation for the offense, or in an attempt to avoid 
apprehension for the offense, increase by 4 levels.
Commentary
    Application Notes:
    1. Definitions.--For purposes of this guideline:
    `Body armor' means any product sold or offered for sale, in 
interstate or foreign commerce, as personal protective body covering 
intended to protect against gunfire, regardless of whether the product 
is to be worn alone or is sold as a complement to another product or 
garment. See 18 U.S.C. 921(a)(35).
    `Crime of violence' has the meaning given that term in 18 U.S.C. 
16.
    `Drug trafficking crime' has the meaning given that term in 18 
U.S.C. 924(c)(2).
    `Offense' has the meaning given that term in Application Note 1 of 
the Commentary to Sec.  1B1.1 (Application Instructions).
    `Use' means (A) active employment in a manner to protect the person 
from gunfire; or (B) use as a means of bartering. `Use' does not mean 
mere possession (e.g., `use' does not mean that the body armor was 
found in the trunk of the car but not used actively as protection). 
`Used' means put into `use' as defined in this paragraph.
    2. Application of Subdivision (2)(B).--Consistent with Sec.  1B1.3 
(Relevant Conduct), the term `defendant', for purposes of subdivision 
(2)(B), limits the accountability of the defendant to the defendant's 
own conduct and conduct that the defendant aided or abetted, counseled, 
commanded, induced, procured, or willfully caused.
    Background: This guideline implements the directive in the James 
Guelff and Chris McCurley Body Armor Act of 2002 (section 11009(d) of 
the 21st Century Department of Justice Appropriations Authorization 
Act, Pub. L. 107-273).''.
    Reason for Amendment: This amendment responds to the directive in 
section 11009 of the 21st Century Department of Justice Appropriations 
Authorization Act (the ``Act''), Pub. L. 107-273. The directive 
requires the Sentencing Commission to review and amend the 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 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 included a sense of 
Congress that any such enhancement should be at least two levels.
    In response to the directive, the amendment creates a new Chapter 
Three adjustment at Sec.  3B1.5 (Use of Body Armor in Drug Trafficking 
Crimes and Crimes of Violence). The new adjustment provides for the 
greater of a two level adjustment if the defendant was convicted of a 
crime of violence or a drug trafficking crime and the offense involved 
the use of body armor, or a four level adjustment if the defendant used 
body armor in preparation for, during the commission of, or in an 
attempt to avoid apprehension for, the offense.
    An application note defines ``drug trafficking crime'' (as defined 
in 18 U.S.C. 924(e)(2)). This definition includes any felony punishable 
under the Controlled Substances Act. The application note also defines 
``crime of violence'' (as defined in 18 U.S.C. 16). This definition 
includes offenses that involve the use or attempted use of physical 
force against property as well as persons. Both of these definitions 
are somewhat broader than the definitions of ``crime of violence'' and 
``drug trafficking offense'' used in a number of other guidelines. The 
definition of ``body armor'' is the same as the statutory definition 
provided in 18 U.S.C. 921(a)(35).
    An application note makes clear that in order for Sec.  3B1.5 to 
apply, the body armor must be used, i.e., actively employed either in a 
manner to protect the person from gunfire or as a means of bartering. 
Mere possession is insufficient to trigger the adjustment.
    Another application note explains that in order for the heightened, 
four level adjustment to apply, the defendant must have used the body 
armor or aided, abetted, counseled, commanded, induced, procured, or 
willfully caused someone else to use the body armor.
    9. Amendment: Section 5G1.3(b) is amended to read as follows:
    ``(b) If subsection (a) does not apply, and a term of imprisonment 
resulted from another offense that 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 that 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:
    (1) The court 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
    (2) The sentence for the instant offense shall be imposed to run 
concurrently to the remainder of the undischarged term of 
imprisonment.''.
    Section 5G1.3(c) is amended by inserting ``involving an 
undischarged term of imprisonment'' after ``case''.
    The Commentary to Sec.  5G1.3 captioned ``Application Notes'' is 
amended by striking Notes 2 through 7 and inserting the following:
    ``2. Application of Subsection (b).--
    (A) In General.--Subsection (b) applies in cases in which all of 
the prior offense (i) 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) has resulted in an increase in the Chapter 
Two or 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 
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

[[Page 26976]]

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, and the 
court adjusts the sentence for a period of time already served, the 
court should note on the Judgement in a Criminal Case Order (i) the 
applicable subsection (e.g., Sec.  5G1.3(b)); (ii) the amount of time 
by which the sentence is being adjusted; (iii) the undischarged term of 
imprisonment for which the adjustment is being given; and (iv) that the 
sentence imposed is a sentence reduction pursuant to Sec.  5G1.3(b) for 
a period of imprisonment that will not be credited by the Bureau of 
Prisons.
    (D) Example.--The following is an example in which subsection (b) 
applies and an adjustment to the sentence is appropriate:
    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 level 16 for sale of 55 grams of cocaine; 3 level 
reduction for acceptance of responsibility; final offense level of 
level 13; Criminal History Category I). The court determines that a 
sentence of 13 months provides the appropriate total punishment. 
Because the defendant has already 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.
    3. Application of Subsection (c).--
    (A) In General.--Under subsection (c), the court may impose a 
sentence concurrently, partially concurrently, or consecutively to the 
undischarged term of imprisonment. In order to achieve a reasonable 
incremental punishment for the instant offense and avoid unwarranted 
disparity, the court should consider the following:
    (i) The factors set forth in 18 U.S.C. 3584 (referencing 18 U.S.C. 
3553(a));
    (ii) The type (e.g., determinate, indeterminate/parolable) and 
length of the prior undischarged sentence;
    (iii) The time served on the undischarged sentence and the time 
likely to be served before release;
    (iv) The fact that the prior undischarged sentence may have been 
imposed in state court rather than federal court, or at a different 
time before the same or different federal court; and
    (v) Any other circumstance relevant to the determination of an 
appropriate sentence for the instant offense.
    (B) Partially Concurrent Sentence.--In some cases under subsection 
(c), a partially concurrent sentence may achieve most appropriately the 
desired result. To impose a partially concurrent sentence, the court 
may provide in the Judgment in a Criminal Case Order that the sentence 
for the instant offense shall commence on the earlier of (i) when the 
defendant is released from the prior undischarged sentence; or (ii) on 
a specified date. This order provides for a fully consecutive sentence 
if the defendant is released on the undischarged term of imprisonment 
on or before the date specified in the order, and a partially 
concurrent sentence if the defendant is not released on the 
undischarged term of imprisonment by that date.
    (C) Undischarged Terms of Imprisonment Resulting from Revocations 
of Probation, Parole or Supervised Release.--Subsection (c) applies in 
cases 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. Consistent with 
the policy set forth in Application Note 4 and subsection (f) of Sec.  
7B1.3 (Revocation of Probation or Supervised Release), the Commission 
recommends that the sentence for the instant offense be imposed 
consecutively to the sentence imposed for the revocation.
    (D) Complex Situations.--Occasionally, the court may be faced with 
a complex case in which a defendant may be subject to multiple 
undischarged terms of imprisonment that seemingly call for the 
application of different rules. In such a case, the court may exercise 
its discretion in accordance with subsection (c) to fashion a sentence 
of appropriate length and structure it to run in any appropriate manner 
to achieve a reasonable punishment for the instant offense.
    (E) Downward Departure.--Unlike subsection (b), subsection (c) does 
not authorize an adjustment of the sentence for the instant offense for 
a period of imprisonment already served on the undischarged term of 
imprisonment. However, in an extraordinary case involving an 
undischarged term of imprisonment under subsection (c), it may be 
appropriate for the court to downwardly depart. This may occur, for 
example, in a case in which the defendant has served a very substantial 
period of imprisonment on an undischarged term of imprisonment that 
resulted from conduct only partially within the relevant conduct for 
the instant offense. In such a case, a downward departure may be 
warranted to ensure that the combined punishment is not increased 
unduly by the fortuity and timing of separate prosecutions and 
sentencings. Nevertheless, it is intended that a departure pursuant to 
this application note result in a sentence that ensures a reasonable 
incremental punishment for the instant offense of conviction.
    To avoid confusion with the Bureau of Prisons' exclusive authority 
provided under 18 U.S.C. 3585(b) to grant credit for time served under 
certain circumstances, the Commission recommends that any downward 
departure under this application note be clearly stated on the Judgment 
in a Criminal Case Order as a downward departure pursuant to Sec.  
5G1.3(c), rather than as a credit for time served.
    4. Downward Departure Provision.--In the case of a discharged term 
of imprisonment, a downward departure is not prohibited if the 
defendant (A) has completed serving a term of imprisonment; and (B) 
subsection (b) would have provided an adjustment had that completed 
term of imprisonment been undischarged at the time of sentencing for 
the instant offense. See Sec.  5K2.23 (Discharged Terms of 
Imprisonment).''.
    Chapter Five, Part K, is amended by adding at the end the following 
new policy statement:

``Sec.  5K2.23. Discharged Terms of Imprisonment (Policy Statement)

    A sentence below the applicable guideline range may be appropriate 
if the defendant (1) has completed serving a term of imprisonment; and 
(2) subsection (b) of Sec.  5G1.3 (Imposition of a Sentence on a 
Defendant Subject to Undischarged Term of Imprisonment) would have 
provided an adjustment had that completed term of imprisonment been 
undischarged at the time of sentencing for the instant offense. Any 
such departure should be fashioned to achieve a reasonable punishment 
for the instant offense.''.
    Reason for Amendment: This amendment addresses a number of issues 
in Sec.  5G1.3 (Imposition of a

[[Page 26977]]

Sentence on a Defendant Subject to an Undischarged Term of 
Imprisonment).
    First, this amendment clarifies the rule for application of 
subsection (b) (mandating a concurrent term of imprisonment) with 
respect to a prior term of imprisonment by stating 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. By clarifying the application of 
subsection (b), this amendment addresses conflicting litigation 
regarding the meaning of ``fully taken into account.'' Compare, e.g., 
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), with 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).
    Second, this amendment addresses how this guideline applies in 
cases in which an instant offense is committed while the defendant is 
on federal or state probation, parole, or supervised release, and has 
had such probation, parole, or supervised release revoked. Under this 
amendment, the sentence for the instant offense may be imposed 
concurrently, partially concurrently, or consecutively to the 
undischarged term of imprisonment; however, the Commission recommends a 
consecutive sentence in this situation. This amendment also resolves a 
circuit conflict concerning whether the imposition of such sentence is 
required to be consecutive. The amendment follows holdings of the 
Second, Third, and Tenth Circuits stating that imposition of sentence 
for the instant offense is not required to be consecutive to the 
sentence imposed upon revocation of probation, parole, or supervised 
release. 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).
    Third, this amendment provides a new downward departure provision 
in Sec.  5K2.23 (Discharged Terms of Imprisonment) regarding the effect 
of discharged terms of imprisonment. This provision replaces the 
departure provision previously set forth in Application Note 7 of Sec.  
5G1.3. By placing the departure provision in Chapter Five, Part K, this 
amendment brings structural clarity to Sec.  5G1.3 because the 
guideline applies to undischarged, rather than discharged, terms of 
imprisonment. For ease of application, the new commentary in Sec.  
5G1.3 provides a reference to Sec.  5K2.23.
    Finally, this proposed amendment addresses a circuit conflict 
regarding whether the sentencing court may grant ``credit'' or adjust 
the instant sentence for time served on a prior undischarged term 
covered under subsection (c). 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). The amendment makes clear that the court may not 
adjust or give ``credit'' for time served on an undischarged term of 
imprisonment covered under subsection (c). However, the amendment adds 
commentary to Sec.  5G1.3 to provide that courts may consider a 
downward departure in an extraordinary case, in order to achieve a 
reasonable punishment for the instant offense.
    10. Amendment: Section 1B1.1 is amended by inserting before 
subsection (a) the following new paragraph:
    ``Except as specifically directed, the provisions of this manual 
are to be applied in the following order:''.
    The Commentary to Sec.  1B1.1 captioned ``Application Notes'' is 
amended by striking Note 4 and inserting the following:
    ``4. (A) Cumulative Application of Multiple Adjustments within One 
Guideline.--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) Cumulative Application of Multiple Adjustments from Multiple 
Guidelines.--Absent an instruction to the contrary, enhancements under 
Chapter Two, adjustments under Chapter Three, and determinations under 
Chapter Four are to be applied cumulatively. In some cases, such 
enhancements, adjustments, and determinations may be triggered by the 
same 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 adjustment under Sec.  3A1.2, even 
though the enhancement and the adjustment both are triggered by the 
shooting of the officer.''.
    The Commentary to Sec.  1B1.1 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``7. Use of Abbreviated Guideline Titles.--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, Property Destruction, and Fraud).''.
    The Commentary to 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.''.
    The Commentary to Sec.  2B1.1 captioned ``Statutory Provisions'' is 
amended by inserting ``19 U.S.C. 2401f;'' before ``29 U.S.C.''.
    The Commentary to Sec.  2C1.3 captioned ``Statutory Provisions'' is 
amended by inserting ``; 40 U.S.C. 14309(a), (b)'' after ``1909''.
    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 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;''.

[[Page 26978]]

    Section 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 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 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 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 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 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 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 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 2G2.1 captioned ``Application Notes'' is amended 
by striking Note 6 and inserting the following:
    ``6. Upward Departure Provision.--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.  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''.
    The Commentary to Sec.  2R1.1 captioned ``Statutory Provision'' is 
amended by striking ``Provision'' and inserting ``Provisions''; and by 
striking ``Sec.  1'' and inserting ``Sec. Sec.  1, 3(b)''.
    The Commentary to Sec.  4B1.5 captioned ``Application Notes'' is 
amended Note 4(A) by striking ``(i) means'' and inserting ``means any 
of the following: (i)''; by striking ``includes'' each place it 
appears; by inserting ``or'' before ``(iii)''; and by striking ``; and 
(iv)'' and inserting ``. It''.
    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'';

by inserting after the line referenced to 15 U.S.C. 1 the following new 
line:
    ``15 U.S.C. 3(b) 2R1.1'';

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(a)-(e), as 
amended by this amendment, 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 to 38 U.S.C. 3502 the following 
new lines:
    ``40 U.S.C. 5104(e)(1) 2K2.5
    40 U.S.C. 14309(a), (b) 2C1.3''.
    Reason for Amendment: This six-part amendment makes several 
technical and conforming changes to various guideline provisions.
    First, this amendment makes changes to Sec.  1B1.1 (Application 
Instructions) to (1) provide an instruction making clear that the 
application instructions are to be applied in the order presented in 
the guideline; (2) provide an application note making clear that, 
absent an instruction to the contrary, Chapter Two enhancements, 
Chapter Three adjustments, and determinations under Chapter Four 
triggered by the same conduct are to be applied cumulatively; and (3) 
provide an application note concerning the use of abbreviated guideline 
titles to ease reference to guidelines that have exceptionally long 
titles.
    Second, this amendment adds red phosphorus to the Chemical Quantity 
Table in Sec.  2D1.11 (Unlawfully Distributing, Importing, Exporting or 
Possessing a Listed Chemical) in response to a recent classification of 
red phosphorus as a List I chemical.
    Third, this amendment conforms 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 Application Note 12 of Sec.  
2G1.1 (Promoting A Commercial Sex Act or Prohibited Sexual Conduct).
    Fourth, this amendment 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.
    Fifth, this amendment restructures the definitions of ``prohibited 
sexual conduct'' in Sec. Sec.  2A3.1 (Criminal Sexual Abuse; Attempt to 
Commit Criminal Sexual Abuse) and 4B1.5 (Repeat and Dangerous Sex 
Offender Against Minors) to eliminate possible ambiguity regarding the 
interaction of ``means'' and ``includes''.
    Finally, this amendment responds to new legislation and makes other 
technical amendments as follows:
    (1) 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 of imprisonment 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 ten years' imprisonment for a 
subsequent violation of either offense.
    (2) Amends Appendix A and 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) 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

[[Page 26979]]

assistance to qualifying agricultural commodity producers.
    (3) Amends Appendix A, 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 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 Sec.  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 of two years. Section 14309(b) 
prohibits certain additional sources of salary and provides a statutory 
maximum term of imprisonment of one year. The amendment references 40 
U.S.C. 14309(a) and (b) to Sec.  2C1.3.
    (4) Amends Appendix A and Sec.  2H2.1 (Obstructing an Election or 
Registration) to provide a guideline reference for offenses under 18 
U.S.C. 1015(f). Prior to this amendment, 18 U.S.C. 1015 was referenced 
to Sec. Sec.  2B1.1, 2J1.3 (Perjury or Subornation of Perjury; Bribery 
of Witness), 2L2.1 (Trafficking in a Document Relating to 
Naturalization, Citizenship, or Legal Resident Status, or a United 
States Passport; False Statement in Respect to the Citizenship or 
Immigration Status of Another; Fraudulent Marriage to Assist Alien to 
Evade Immigration Law), and 2L2.2 (Fraudulently Acquiring Documents 
Relating to Naturalization, Citizenship, or Legal Resident Status for 
Own Use; False Personation or Fraudulent Marriage by Alien to Evade 
Immigration Law; Fraudulently Acquiring or Improperly Using a United 
States Passport). 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. Accordingly, the 
amendment references 18 U.S.C. 1015(f) to Sec.  2H2.1 (Obstructing an 
Election or Registration).
    (5) Amends Appendix A and Sec.  2R1.1 (Bid-Rigging, Price-Fixing or 
Market-Allocation Agreements Among Competitors) in response to a new 
offense (15 U.S.C. 3) created by section 14102 (the Antitrust Technical 
Corrections Act of 2002) of the 21st Century Department of Justice 
Appropriations Authorization Act, Pub. L. 107-273. The new offense 
provides a statutory maximum term of imprisonment of three years, and a 
maximum fine of $10,000,000 for a corporation, or $350,000 for an 
individual, for monopolizing, or attempting or conspiring to 
monopolize, any part of the trade or commerce in or between any states, 
or territories of the United States, or between any such states, or 
territories of the United States and any foreign nations.

[FR Doc. 03-12176 Filed 5-15-03; 8:45 am]
BILLING CODE 2211-01-P