[Federal Register Volume 68, Number 249 (Tuesday, December 30, 2003)]
[Notices]
[Pages 75340-75378]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-31755]



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Part III





United States Sentencing Commission





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Sentencing Guidelines for United States Courts; Notice

  Federal Register / Vol. 68, No. 249 / Tuesday, December 30, 2003 / 
Notices  

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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of proposed amendments to sentencing guidelines, policy 
statements, and commentary. Request for public comment, including 
public comment regarding retroactive application of any of the proposed 
amendments.

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SUMMARY: Pursuant to section 994(a), (o), and (p) of title 28, United 
States Code, the United States Sentencing Commission is considering 
promulgating certain amendments to the sentencing guidelines, policy 
statements, and commentary. This notice sets forth the proposed 
amendments and, for each proposed amendment, a synopsis of the issues 
addressed by that amendment. This notice also provides multiple issues 
for comment, some of which are contained within proposed amendments.
    The specific proposed amendments and issues for comment in this 
notice are as follows: (1) Proposed amendments that implement 
directives to the Commission contained in the Prosecutorial Remedies 
and Other Tools to end the Exploitation of Children Today Act of 2003 
(``PROTECT Act''), Public Law 108-21, regarding child pornography and 
sexual abuse offenses, and related issues for comment; (2) proposed 
amendments to Chapter Eight (Sentencing of Organizations) to provide a 
new guideline regarding compliance programs, and related issues for 
comment; (3) proposed new guideline at Sec.  2K2.6 (Possessing, 
Purchasing, or Owning Body Armor by Violent Felons) that addresses the 
new offense at 18 U.S.C. 931 pertaining to the possession of body armor 
by certain prohibited persons; (4) proposed amendments to Chapter Two, 
Part C (Offenses Involving Public Officials) that increase the 
penalties for offenses involving public corruption, and related issues 
for comment; (5) proposed amendments that (A) address the directive in 
section 608 of the PROTECT Act pertaining to increased penalties for 
offenses involving gamma hydroxybutyric acid (``GHB''); (B) provide a 
penalty structure for controlled substance analogues in Sec.  2D1.1 
(Unlawful Manufacturing, Importing, Exporting, or Trafficking 
(Including Possession with Intent to Commit These Offenses); Attempt 
and Conspiracy); (C) add white phosphorous and hypophosphorous acid to 
the Drug Quantity Table in Sec.  2D1.1(c); and (D) make various 
technical changes to Sec. Sec.  2D1.1, 2D1.11 (Unlawfully Distributing, 
Importing, Exporting, or Possessing a Listed Chemical; Attempt and 
Conspiracy), and Appendix A (Statutory Index), and related issues for 
comment; (6) proposed amendment to repeal the ``mitigating role cap'' 
in Sec.  2D1.1(b)(3) and replace it with an alternative approach, and a 
related issue for comment; (7) proposed amendments to the homicide and 
assault guidelines that implement the directive in section 11008(e) of 
the 21st Century Department of Justice Appropriations Authorization 
Act, Public Law 107-273, and that address proportionality concerns, and 
related issues for comment; (8) proposed amendments that makes various 
technical and conforming amendments to the guidelines, and related 
issues for comment; (9) proposed amendment to Sec.  2K2.1 (Unlawful 
Receipt, Possession, or Transportation of Firearms or Ammunition; 
Prohibited Transactions Involving Firearms or Ammunition) that 
increases the penalties for offenses involving man-portable air defense 
systems (``MANPADS'') and other similar destructive devices, and 
related issues for comment; (10) an issue for comment regarding 
aberrant behavior; and (11) issues for comment regarding the treatment 
under the guidelines of offenses involving the illegal transportation 
of hazardous materials.

DATES: Written public comment regarding the proposed amendments and 
issues for comment set forth in this notice, including public comment 
regarding retroactive application of any of the proposed amendments, 
should be received by the Commission not later than March 1, 2004.

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

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

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is 
an independent agency in the judicial branch of the United States 
Government. The Commission promulgates sentencing guidelines and policy 
statements for federal courts pursuant to 28 U.S.C. 994(a). The 
Commission also periodically reviews and revises previously promulgated 
guidelines pursuant to 28 U.S.C. 994(o) and submits guideline 
amendments to the Congress not later than the first day of May of each 
year pursuant to 28 U.S.C. 994(p).
    The Commission seeks comment on the proposed amendments, issues for 
comment, and any other aspect of the sentencing guidelines, policy 
statements, and commentary.
    The proposed amendments in this notice are presented in one of two 
formats. First, some of the amendments are proposed as specific 
revisions to a guideline or commentary. Bracketed text within a 
proposed amendment indicates a heightened interest on the Commission's 
part on comment and suggestions regarding alternative policy choices; 
for example, a proposed enhancement of [2] levels indicates that the 
Commission is considering, and invites comment on, alternative policy 
choices regarding the appropriate level of enhancement. Similarly, 
bracketed text within a specific offense characteristic or application 
note means that the Commission specifically invites comment on whether 
the proposed provision is appropriate. Second, the Commission has 
highlighted certain issues for comment and invites suggestions on how 
the Commission should respond to those issues.
    The Commission also requests public comment regarding whether the 
Commission should specify for retroactive application to previously 
sentenced defendants any of the proposed amendments published in this 
notice. The Commission requests comment regarding which, if any, of the 
proposed amendments that may result in a lower guideline range should 
be made retroactive to previously sentenced defendants pursuant to 
Sec.  1B1.10 (Reduction in Term of Imprisonment as a Result of Amended 
Guideline Range).
    Additional information pertaining to the proposed amendments 
described in this notice may be accessed through the Commission's Web 
site at www.ussc.gov.

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

Diana E. Murphy,
Chair.

Proposed Amendment 1: Child Pornography and Sexual Abuse of Minors

    Synopsis of Proposed Amendment: This proposed amendment contains a 
number of proposals designed to implement the directives to the 
Commission regarding child pornography and sexual abuse offenses in the 
Prosecutorial Remedies and Other Tools to end the Exploitation of 
Children Today Act of 2003, (the ``PROTECT Act''), Public Law 108-21.

[[Page 75341]]

Furthermore, this amendment addresses a number of issues in response to 
comments from the Department of Justice's Child Exploitation and 
Obscenity Section (``CEOS''), calls to the Commission's Helpline, and 
issues identified through case law regarding the sexual abuse and 
pornography guidelines. This proposed amendment makes changes to 
Chapter Two, Part A (Criminal Sexual Abuse), Chapter Two, Part G 
(Offenses Involving Commercial Sex Acts, Sexual Exploitation of Minors, 
and Obscenity), Sec. Sec.  3D1.2 (Groups of Closely Related Counts), 
5B1.3 (Conditions of Probation), 5D1.2 (Term of Supervised Release), 
5D1.3 (Conditions of Supervised Release), and Appendix A (Statutory 
Index). Several issues for comment regarding these guidelines and Sec.  
4B1.5 (Repeat and Dangerous Sex Offender Against Minors) follow the 
proposed amendments.

I. Child Pornography Offenses

    This part of the proposed amendment covers offenses sentenced under 
Sec. 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), 2G2.4 (Possession of Materials Depicting a Minor 
Engaged in Sexually Explicit Conduct), and 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). Issues for comment 
regarding the scope of specific enhancements in these guidelines and 
the application of the ``image tables'' and ``sado-masochistic'' 
enhancements at Sec. Sec.  2G2.2 and 2G2.4 follow the proposed 
amendments.

A. Trafficking Offenses Under Sec.  2G2.2

    Section 103 of the PROTECT Act creates five year mandatory minimum 
terms of imprisonment for offenses related to trafficking of child 
pornography under 18 U.S.C. 2252(a)(1)-(3) and 2252A(a)(1), (2), (3), 
(4) and (6). This section also increases the statutory maximum terms of 
imprisonment for these offenses from 15 years to 20 years. As a result, 
this proposed amendment provides two options for increasing the base 
offense level in Sec.  2G2.2 to reflect the new five year mandatory 
minimum term of imprisonment. Option 1 increases the base offense level 
for all offenses covered by this guideline from level 17 to level 
[22][24][25][26]. Option 2 provides alternative base offense levels of 
level [20][22][24] if the conduct was limited to the receipt or 
solicitation of material involving the sexual exploitation of a minor 
and level [22][24][25][26] for all other offenses.
    Section 503 of the PROTECT Act creates two new offenses in 18 
U.S.C. 2252A. The new offense at 18 U.S.C. 2252A(a)(3)(B) prohibits 
advertising, promoting, presenting, distributing, or soliciting any 
material or purported material that the defendant believes, or intends 
to cause another to believe, contains actual or obscene child 
pornography. No actual materials need to exist in order to be convicted 
under this provision, thus even fraudulent offers to buy or sell such 
materials are covered under this provision. The new offense at 18 
U.S.C. 2252A(a)(6) prohibits using any type of real or apparent child 
pornography to induce a child to commit a crime. Section 513(c) of the 
PROTECT Act directs the Commission to review and, as appropriate, amend 
the guidelines to ensure that penalties are adequate to deter and 
punish conduct that involves a violation of these new offenses. In 
addition, the Commission is directed to ``consider the relative 
culpability of promoting, presenting, describing, or distributing 
material'' in violation of 18 U.S.C. Sec.  2252A(a)(3)(B) as compared 
to soliciting such material.
    In response to this directive, several options are proposed. First, 
the amendment refers both of these new offenses to the trafficking 
guideline, Sec.  2G2.2. Currently, Sec.  2G2.2(b)(2) provides, for 
offenses involving distribution of child pornography, a two-to seven-
level enhancement, depending on the type of distribution. Section 
2G2.2(b)(2)(C) provides a five-level enhancement for offenses involving 
distribution to a minor, and Sec.  2G2.2(b)(2)(D) provides a seven-
level enhancement for ``distribution to a minor that was intended to 
persuade, induce, entice, coerce, or facilitate the travel of, the 
minor to engage in prohibited sexual conduct.'' In response to the new 
offense at 18 U.S.C. 2252(A)(a)(b), the proposed amendment adds a six-
level enhancement at Sec.  2G2.2(b)(2) if the offense involved 
distribution to a minor that was intended to persuade, induce, entice, 
or coerce a minor to engage in any illegal activity.
    This proposal addresses in two ways the directive to compare the 
relative culpability of a defendant who promotes, presents, describes, 
or distributes child pornographic material to the culpability of a 
defendant who merely solicits such material. First, the amendment 
provides an alternative base offense level ``if (A) the defendant's 
conduct was limited to the receipt or solicitation of material 
involving the sexual exploitation of a minor; and (B) the defendant did 
not intend to traffic in, or distribute, such material.'' Second, the 
proposal amends Sec.  2G2.2(b)(2) and the commentary of that guideline 
to make clear that the enhancement only applies to defendants whose 
conduct involves some form of distribution. In addition, this proposal 
adds commentary to the definition of ``distribution'' that makes clear 
that distribution does not include merely soliciting child pornography. 
Therefore, defendants who merely solicit child pornography will not be 
subject to the distribution enhancement at Sec.  2G2.2(b)(2) unless 
their conduct involves some other act related to the transfer of 
material involving the sexual exploitation of a minor. Third, the 
amendment contains an option in the distribution enhancement at Sec.  
2G2.2(b)(2) to change the enhancement from ``if the offense involved'' 
to ``if the defendant's conduct involved'', which would limit the 
defendant's exposure under the enhancement to that of the defendant's 
own conduct.
    Section 504 of the PROTECT Act creates a new offense at 18 U.S.C. 
1466A that prohibits producing, distributing, receiving, possessing, or 
possessing with intent to distribute visual depictions (including 
drawings, cartoons, sculptures or paintings) that depict (1) a minor 
engaging in sexually explicit conduct and is obscene; or (2) an image 
that is, or appears to be, a minor engaging in sexually explicit 
conduct and lacks serious literary, artistic, political, or scientific 
value. Trafficking in such materials is covered under subsection (a) 
and carries a mandatory minimum term of imprisonment of five years and 
a maximum term of imprisonment of 20 years. Simple possession of such 
materials is covered under 18 U.S.C. 1466A(b) and punishable by a term 
of imprisonment of not more than ten years. Although 18 U.S.C. 1466A 
covers offenses of trafficking in, possession with intent to traffic 
in, and simple possession of, obscene material, section 504 of the 
PROTECT Act directs the Commission to punish these offenses consistent 
with child pornography trafficking offenses sentenced under Sec.  
2G2.2. By strictly complying with the language of this directive, 
however, the Commission would create an anomaly with regard to simple 
possession cases. For example, a defendant convicted of

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possessing an obscene cartoon drawing depicting minors engaged in 
sexually explicit conduct under 18 U.S.C. Sec.  1466A(b) would receive 
a sentence equivalent to a five year mandatory minimum term of 
imprisonment under Sec.  2G2.2, while a defendant convicted under 18 
U.S.C. 2252(a)(4) of possessing a picture of actual minors engaged in 
sexually explicit conduct would receive a sentence of only two years' 
imprisonment under Sec.  2G2.4.
    According to the legislative history, the intent of the directive 
in section 504 was to ensure that offenses under 18 U.S.C. 1466A are 
``subject to the penalties applicable to child pornography, not the 
lower penalties that apply to obscenity.'' See H.R. Conf. Rep. No. 66, 
108th Cong. 1st Sess. (2003). Obscenity offenses are sentenced under 
Sec.  2G3.1, which has a base offense level of level 10. Simple 
possession offenses under 18 U.S.C. 1466A(b) more appropriately may be 
covered under the simple possession guideline, Sec.  2G2.4. Therefore, 
the proposed amendment refers offenses under 18 U.S.C. 1466A(a) 
involving trafficking and possession with intent to traffic to Sec.  
2G2.2, as directed by Congress, but refers offenses under 18 U.S.C. 
1466A(b) involving simple possession to Sec.  2G2.4.
    This proposed amendment also makes a number of changes to Appendix 
A (Statutory Index) and the statutory provisions in Sec.  2G2.2. 
Offenses under 18 U.S.C. 2252 and 2252A currently are referenced to 
both Sec. Sec.  2G2.2 and 2G2.4 because these statutes contain 
prohibitions on both trafficking in and simple possession of child 
pornography. This proposal amends Appendix A and the statutory 
provisions in Sec.  2G2.2 to refer trafficking offenses in 18 U.S.C. 
2252(a)(1)-(3) and 2252A(a)(1), (2), (3), (4), and (6) to Sec.  2G2.2 
only, thereby ensuring that the trafficking offenses receive the 
appropriate base offense level which corresponds to the five year 
mandatory minimum term of imprisonment. This amendment makes a similar 
change with respect to offenses under 18 U.S.C. 2251(d)(1)(A) (formerly 
(c)(1)(A), redesignated by the PROTECT Act). This section prohibits 
making, printing, or publishing any notice or advertisement seeking to 
receive, exchange, buy, produce, display, distribute, or reproduce, any 
visual depiction if the production of the visual depiction involves the 
use of a minor engaging in sexually explicit conduct and the visual 
depiction is of such conduct. Currently, these offenses are referenced 
to Sec.  2G2.2 instead 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) because they are more like 
trafficking offenses than production offenses. However, the PROTECT Act 
increases the mandatory minimum term of imprisonment for these offenses 
from 10 to 15 years. Therefore, these offenses are proposed to be 
referenced to the production guideline, Sec.  2G2.1. Subpart D of the 
proposed amendment increases the base offense level in Sec.  2G2.1 to 
level [30][32][34][35][36] to reflect the increased mandatory minimum 
term of imprisonment.
    In response to comments from CEOS, calls to the Helpline, and 
issues identified through case law regarding inconsistencies in the 
application of the use of a computer enhancement at Sec.  2G2.2(b)(5), 
the amendment proposes to broaden the enhancement in two ways. First, 
the amendment proposes to expand the enhancement to include 
``interactive computer devices'' (e.g., Internet access devices), as 
defined in 47 U.S.C. 230(f)(2). Currently, Sec.  2G2.2(b)(5) provides 
an enhancement if only a computer was used for ``the transmission, 
receipt or distribution'' of the pornographic material, in contrast to 
similar enhancements in other pornography or sexual abuse guidelines 
that provide an enhancement for the use of a ``computer or Internet-
access device''. (See United States v. Albright, 67 Fed. Appx. 751 (3d 
Cir. 2003)(unpub.) (use of a WebTV device used to access the Internet 
is not a computer for purposes of the enhancement)). Use of the term 
``interactive computer device'' may be preferable to ``Internet access 
device'' in the applicable guidelines because it is statutorily 
defined. Conforming changes are proposed for Sec. Sec.  2G1.1 
(Promoting a Commercial Sex Act or Prohibited Sexual Conduct), proposed 
2G1.3 (Promoting a Commercial Sex Act or Prohibited Sexual Conduct with 
a Minor; Transportation of Minors to Engage in a Commercial Sex Act or 
Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or 
Prohibited Sexual Conduct with a Minor; Use of Interstate Facilities to 
Transport Information about a Minor), 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), 2G2.4 (Possession of 
Materials Depicting a Minor Engaged in Sexually Explicit Conduct), 
2A3.2 (Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years 
(Statutory Rape) or Attempt to Commit Such Acts), 2A3.3 (Criminal 
Sexual Abuse of a Ward or Attempt to Commit Such Acts), and 2A3.4 
(Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact). 
Second, the amendment proposes to broaden the enhancement to apply to 
offenses in which the computer (or an interactive computer service) was 
used for the possession of pornographic material. Currently, the 
enhancement provides a two-level increase if only a computer was used 
for ``the transmission, receipt, or distribution'' of the pornographic 
material.
    Finally, in response to CEOS comments, calls to the Helpline, and 
issues identified through training, this proposal makes the following 
minor changes to the commentary to Sec.  2G2.2:
    (1) Provides a definition of ``computer''.
    (2) Makes clear that the definition of ``minor'' includes (A) an 
individual who had not attained the age of 18 years; (B) an individual, 
whether fictitious or not, who a law enforcement officer represents to 
a participant (i) had not attained the age of 18 years, and (ii) could 
be provided to a participant for the purposes of engaging in sexually 
explicit conduct; and (C) an undercover law enforcement officer who 
represented to a participant that the officer had not attained the age 
of 18 years.
    (3) Provides a definition of ``image'' for purposes of applying the 
enhancement at Sec.  2G2.2(b)(6).
    (4) Makes clear that ``distribution'' includes posting material 
involving the sexual exploitation of a minor on a website for public 
viewing but does not include soliciting such material.

B. Simple Possession Offenses Under Sec.  2G2.4

    The PROTECT Act raised the statutory maximum term of imprisonment 
for simple possession offenses from five to ten years. As a result, 
this proposed amendment includes an option for increasing the base 
offense level from level 15 to level [18][20]. An increase in the base 
offense level also may be justified to maintain proportionality with 
the child pornography trafficking guideline because of a proposed 
increase in the base offense level at Sec.  2G2.2 for trafficking and 
receipt cases (see subpart A of this amendment).
    In response to comments from CEOS, the proposed amendment addresses 
a recent Seventh Circuit decision in United States v. Sromalski, 318 
F.3d 748 (7th Cir. 2003), regarding the cross reference at Sec.  
2G2.4(c)(2). Currently, the

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cross reference requires application of Sec.  2G2.2 if the offense 
``involved trafficking in material involving the sexual exploitation of 
a minor (including receiving, transporting, shipping, advertising, or 
possessing material involving the sexual exploitation of a minor with 
intent to traffic)''. In Sromalski, the appellate court found that in 
cases involving possession of child pornography where receipt can be 
shown, the cross reference at Sec.  2G2.4(c)(2) applies only if the 
receipt involved the intent to traffic. Thus, under the Seventh 
Circuit's interpretation of the guidelines, convictions for receipt of 
child pornography (which do not require proof of an intent to traffic) 
are sentenced under Sec.  2G2.2, but convictions for possession of 
child pornography, even where receipt can be shown, are sentenced under 
Sec.  2G2.4 unless there is proof of receipt with an intent to traffic. 
The proposed amendment provides an option that clarifies that the cross 
reference should be applied without regard to whether or not there was 
offense conduct that involved receipt with an intent to traffic.
    In addition, the proposed amendment makes the following clarifying 
and conforming changes to Sec.  2G2.4 in response to changes made to 
Sec.  2G2.2:
    (1) Expands use of a computer enhancement at Sec.  2G2.4(b)(3) to 
include ``interactive computer services''.
    (2) Provides a definition of ``computer''.
    (3) Provides a definition of ``image'' for purposes of applying the 
enhancement at Sec.  2G2.4(b)(5).
    (4) Makes clear that, for purposes of the cross reference at Sec.  
2G2.4(c)(1), the definition of ``minor'' includes (A) an individual who 
had not attained the age of 18 years; (B) an individual, whether 
fictitious or not, who a law enforcement officer represented to a 
participant (i) had not attained the age of 18 years, and (ii) could be 
provided for the purposes of engaging in sexually explicit conduct; and 
(C) an undercover law enforcement officer who represented to a 
participant that the officer had not attained the age of 18 years.

C. Consolidation of Sec. Sec.  2G2.2 and 2G2.4

    This part of the proposed amendment consolidates Sec. 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), and 2G2.4 
(Possession of Materials Depicting a Minor Engaged in Sexually Explicit 
Conduct, into one guideline, 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; Possession of Materials Depicting a Minor 
Engaged in Sexually Explicit Conduct). Consolidation addresses concerns 
raised over several years by probation officers, judges, and 
practitioners regarding difficulties in determining the appropriate 
guideline (Sec.  2G2.2 or Sec.  2G2.4) for cases involving convictions 
of 18 U.S.C. 2252 or Sec.  2252A. Furthermore, as a result of 
amendments directed by the PROTECT Act, these guidelines have a number 
of similar specific offense characteristics.
    This proposed consolidation provides two options for the base 
offense level. Option One provides alternative base offense levels of 
(1) level [15][18][20] if (A) the conduct was limited to the 
possession, receipt, or solicitation of material involving the sexual 
exploitation of a minor; and (B) the defendant did not intend to 
traffic in, or distribute, such material; (2) level [22][24][26] for 
all other offenses. Option Two provides three alternative base offense 
levels of (1) level [15][18][20] if the defendant's conduct was limited 
to the possession of material involving the sexual exploitation of a 
minor without an intent to traffic in, or distribute, such material; 
(2) level [20][22][24] if (A) the defendant's conduct was limited to 
the receipt or solicitation of material involving the sexual 
exploitation of a minor; and (3) level [22][24][25][26] for all other 
offenses sentenced at this guideline. The proposed consolidation would 
subject Sec.  2G2.4 cases to enhancements if the offense involved 
distribution or if the defendant engaged in a pattern of activity 
involving the sexual abuse or exploitation of a minor. Currently, these 
enhancements do not exist in Sec.  2G2.4

D. Production Offenses Under Sec.  2G2.1

    Section 103 of the PROTECT Act increases the mandatory minimum term 
of imprisonment from 10 to 15 years for offenses related to production 
of child pornography under 18 U.S.C. 2251. This section also increases 
the statutory maximum term of imprisonment for these offenses from 20 
to 30 years. As a result, this proposed amendment increases the base 
offense level in Sec.  2G2.1 from level 27 to level 
[30][32][34][35][36] to reflect the new 15 year mandatory minimum term 
of imprisonment. Furthermore, the proposed amendment adds a number of 
enhancements that may be associated with the production of child 
pornography. The addition of these enhancements also helps to maintain 
the proportionality between these offenses and offenses covered under 
Sec.  2G2.2. The proposed enhancements increase the offense level if 
the offense involved any of the following: (1) Material that portrays 
sadistic or masochistic conduct; (2) the commission of a sexual act or 
sexual contact; (3) conduct described in 18 U.S.C. 2241(a) or (b); and 
(4) distribution.
    The proposed amendment also adds to the commentary of Sec.  2G2.1 
definitions of ``sexual act'', ``sexual contact'', ``sexually explicit 
conduct'', ``computer'', ``interactive computer service'', ``minor'', 
and ``distribution''.

II. Travel and Transportation Cases

    This proposed amendment creates a new guideline, Sec.  2G1.3 
(Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a 
Minor; Transportation of Minors to Engage in a Commercial Sex Act or 
Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or 
Prohibited Sexual Conduct with a Minor; Use of Interstate Facilities to 
Transport Information about a Minor), to specifically address offenses 
under Chapter 117 of title 18, United States Code (Transportation for 
Illegal Sexual Activity and Related Crimes). Currently, Chapter 117 
offenses, primarily 18 U.S.C. 2422 (coercion and enticement) and 2423 
(transportation of minors), are referenced by Appendix A to either 
Sec.  2G1.1 or Sec.  2A3.2. Offenses under 18 U.S.C. 2422 and 2423(a) 
(transportation with intent to engage in criminal sexual activity) are 
referenced to Sec.  2G1.1 (Promoting A Commercial Sex Act or Prohibited 
Sexual Conduct) but are cross referenced from Sec.  2G1.1 to Sec.  
2A3.2 (Statutory Rape) to account for underlying behavior. Application 
of this cross reference has led to confusion among courts and 
practitioners. Offenses under 18 U.S.C. 2423(b) (travel with intent to 
engage in sexual act with a juvenile) are referenced to Sec.  2A3.1, 
Sec.  2A3.2, or Sec.  2A3.3, but most are sentenced at Sec.  2A3.2. 
Until recently, the majority of cases sentenced under Sec.  2A3.2 were 
statutory rape cases that occurred on Federal property (e.g. military 
bases) or Native American lands. In fiscal years 2001 and 2002, the 
majority of cases sentenced under the statutory rape guideline were 
coercion, travel, and transportation offenses.

[[Page 75344]]

Creating a new guideline for these cases is intended to address more 
appropriately the issues specific to these offenses. In addition, the 
removal of these cases from Sec.  2A3.2 will permit the Commission more 
appropriately to tailor the guideline to statutory rape cases.
    Currently, Sec.  2A3.2 provides alternative base offense levels of 
(1) level 24 for a Chapter 117 violation with a sexual act, (2) level 
21 for a Chapter 117 violation with no sexual act (e.g., a sting case), 
or (3) level 18 for statutory rape with no travel. The PROTECT Act 
created a five year mandatory minimum term of imprisonment for 18 
U.S.C. 2422 and 2423(a) and increased the statutory maximum term of 
imprisonment for these offenses from 15 to 30 years. However, the 
PROTECT Act did not increase the penalties for offenses under 18 U.S.C. 
2243 (sexual abuse of a minor), which prohibits statutory rape.
    The proposed guideline provides a base offense level of level 
[22][24][25][26] to account for the new mandatory minimum terms of 
imprisonment as required by the PROTECT Act. The guideline proposes a 
number of enhancements, including enhancements for offenses involving 
victims under the age of 12 years, commission of a sexual act, use of 
force, use of a computer, misrepresentation of identity, and custody 
issues. The proposed amendment also provides two options for a specific 
offense characteristic to address the conduct from 18 U.S.C. 2423(d), a 
new offense created by the PROTECT Act. Offenses under 18 U.S.C. 
2423(d) prohibit a person, for the purpose of commercial advantage or 
private financial gain, from arranging, inducing, procuring, or 
facilitating the travel of a person knowing that such a person is 
traveling in interstate commerce or foreign commerce for the purpose of 
engaging in an illicit sexual act. The maximum term of imprisonment for 
an offense under 18 U.S.C. 2423(d) is 30 years.
    The proposed amendment also makes conforming changes to Sec.  2G1.1 
(Promoting A Commercial Sex Act or Prohibited Sexual Conduct).
    In addition, an issue for comment regarding which guideline is the 
most appropriate for violations of 18 U.S.C. 2425, use of interstate 
facilities to transport information about a minor, follows the proposed 
amendments.

III. Misleading Domain Names

    Section 521 of the PROTECT Act creates a new offense at 18 U.S.C. 
2252B (misleading domain names on the Internet). Section 2252B of title 
18, United States Code, prohibits the knowing use of a misleading 
domain name on the Internet with the intent to deceive a person into 
viewing material constituting obscenity, and offenses under this 
statute are punishable by a maximum term of imprisonment of two years, 
or if the misleading domain name was intended to deceive a minor into 
viewing material that is harmful to minors, a maximum term of 
imprisonment of four years. The proposed amendment refers the new 
offense to Sec.  2G3.1 (Importing, Mailing, or Transporting Obscene 
Matter; Transferring Obscene Matter to a Minor), modifies the title of 
the guideline to include ``Misleading Domain Names'', and provides a 
two-level enhancement if ``the offense involved the use of a misleading 
domain name on the Internet with the intent to deceive a 
[minor][person] into viewing material on the Internet that is harmful 
to minors.'' In addition, the proposed amendment also provides 
enhancements for the following: (1) Distribution to a minor that was 
intended to persuade, induce, entice, or coerce a minor to engage in 
any illegal activity; (2) use of a computer or interactive computer 
service; and (3) material that was advertised or described to include 
minors engaged in sexually explicit conduct. Finally, the proposed 
amendment adds Sec.  2G3.1 to the list of guidelines at subsection (d) 
of Sec.  3D1.2 (Groups of Closely Related Counts). Grouping multiple 
counts of these offenses pursuant to Sec.  3D1.2(d) is appropriate 
because typically these offenses, as well as other pornography 
distribution offenses, are continuous and ongoing in nature. The 
proposal makes other minor technical changes to the Commentary to make 
this guideline consistent with other Chapter Two, Part G guidelines.

IV. Conditions of Supervised Release

    In response to a circuit conflict, this amendment proposes amending 
Sec. Sec.  5B1.3 (Conditions of Probation) and 5D1.3 (Conditions of 
Supervised Release) to add a condition ``limiting [or prohibiting] the 
use of a computer or an interactive computer service'' in cases in 
which the [defendant used][the offense involved the use of] such items. 
The circuit courts have disagreed over imposition of restrictive 
computer use and Internet-access conditions. Some circuit courts have 
refused to allow complete restrictions on computer use and Internet 
access (see United States v. Sofsky, 287 F.3d 122 (2nd Cir. 2002) 
(invalidating restrictions on computer use and Internet use); United 
States v. Freeman, 316 F.3d 386 (3d Cir. 2003) (same)), but some 
circuit courts have upheld restrictions on computer use and Internet 
access with probation officer permission (see United States v. Fields, 
324 F.3d 1025 (8th Cir. 2003) (upholding condition prohibiting 
defendant from having Internet service in his home and allowing 
possessing of a computer only if granted permission by his probation 
officer); United States v. Walser, 275 F.3d 981 (10th Cir. 2001) 
(prohibiting Internet use but allowing Internet use with probation 
officer's permission); United States v. Zinn, 321 F.3d 1084 (11th Cir. 
2003) (same)). Other courts have permitted a complete ban on a 
convicted sex offender's Internet use while on supervised release. (See 
United States v. Paul, 274 F.3d 155 (5th Cir. 2001) (upholding complete 
ban of Internet use)).
    In addition, this proposed amendment amends Sec.  5D1.2 (Term of 
Supervised Release) to make the guideline consistent with changes 
provided in the PROTECT Act to the applicable terms of supervised 
release under 18 U.S.C. 3583 for sex offenders.

V. Chapter Two, Part A, Subpart 3 (Criminal Sexual Abuse) Amendments

    Section 401(i)(2) of the PROTECT Act directs the Commission to 
``amend the Sentencing Guidelines to ensure that the Guidelines 
adequately reflect the seriousness of the offenses'' under sections 
2243(b) (sexual abuse of a ward), 2244(a)(4) (sexual contact), and 
2244(b) (sexual contact with a person without that person's permission) 
of title 18, United States Code. This amendment proposes several 
amendments to the guidelines in Chapter Two, Part A (Criminal Sexual 
Abuse) to address the directive and to account for proportionality 
issues created by the increases in the Chapter Two, Part G guidelines. 
In addition, the amendment makes changes to the Commentary to make the 
definitions in these guidelines consistent with the definitions in the 
pornography guidelines.
    An issue for comment regarding proportionality issues and 
implementation of the directive follows the proposed amendments.
    Proposed Amendment:

I. Child Pornography Offenses

A. Trafficking Offenses Under Sec.  2G2.2

    Proposed Amendment: Section 2G2.2 is amended in the heading by 
inserting ``Soliciting,'' after ``Shipping,''.
    [Option 1:
    Section 2G2.2(a) is amended by striking ``17'' and inserting 
``[22][24][25][26]''.]
    [Option 2:

[[Page 75345]]

    Section 2G2.2 is amended by striking subsection (a) in its entirety 
and inserting the following:
    ``(a) Base Offense Level:
    (1) [20][22][24], if (A) the defendant's conduct was limited to the 
receipt or solicitation of material involving the sexual exploitation 
of a minor; and (B) the defendant did not intend to traffic in, or 
distribute, such material; or
    (2) [22][24][25][26], otherwise.''.]
    [Section 2G2.2(b)(2) is amended by striking ``If the offense 
involved'' and inserting ``If the defendant's conduct involved''];
by redesignating subdivisions (D) and (E) as subdivisions (E) and (F), 
respectively; and by inserting after subdivision (C) the following new 
subdivision (D):
    ``(D) Distribution to a minor that was intended to persuade, 
induce, entice, or coerce the minor to engage in any illegal activity, 
increase by 6 levels.'';
in subdivision (F), as redesignated by this amendment, by striking 
``(D)'' and inserting ``(E)''.
    Section 2G2.2(b)(5) is amended by inserting ``or an interactive 
computer service'' before ``was used''; and by inserting 
[``possession,''] before ``transmission,''.
    The Commentary to Sec.  2G2.2 captioned ``Statutory Provisions'' is 
amended by striking ``2251(c)(1)(A), 2252(a)(1)-(3), 2260'' and 
inserting ``[1466A(a),] 2252(a)(1)-(3), 2252A(a)(1)(4), (6), 2260(b)''.
    The Commentary to Sec.  2G2.2 captioned ``Application Notes'' is 
amended in Note 1 by striking:
    ``For purposes of this guideline--
    `Distribution' means any act, including production, transportation, 
and possession with intent to distribute, related to the transfer of 
material involving the sexual exploitation of a minor.''
and inserting:
    ``Definitions.--For purposes of this guideline:
    `Computer'--has the meaning given that term in 18 U.S.C. 
1030(e)(1).
    `Image' means any visual depiction described in 18 U.S.C. 2256(5) 
and (8).
    `Interactive computer service' has the meaning given that term in 
section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. 
230(f)(2)).
    `Distribution' means any act, including production, transportation, 
and possession with intent to distribute, related to the transfer of 
material involving the sexual exploitation of a minor. Accordingly, 
distribution includes posting material involving the sexual 
exploitation of a minor on a website for public viewing, but does not 
include the mere solicitation of such material by a defendant.'';
by striking ```Minor' means an individual who had not attained the age 
of 18 years.'' and inserting the following:
    ```Minor' means (A) an individual who had not attained the age of 
18 years; (B) an individual, whether fictitious or not, who a law 
enforcement officer represented to a participant (i) had not attained 
the age of 18 years, and (ii) could be provided for the purposes of 
engaging in sexually explicit conduct; and (C) an undercover law 
enforcement officer who represented to a participant that the officer 
had not attained the age of 18 years.'';
and in the paragraph that begins `` `Pattern of activity'' by striking 
``victims'' and inserting ``minors''.
    The Commentary to Sec.  2G2.2 captioned ``Application Notes'' is 
amended by redesignating Notes 2 and 3 as Notes 3 and 4, respectively; 
and by inserting after Note 1 the following new Note 2:
    ``2. Application of Subsection (b)(4).--Prior convictions taken 
into account under subsection (b)(4) are also counted for purposes of 
determining criminal history points pursuant to Chapter Four, Part A 
(Criminal History).''.
    The Commentary to Sec.  2G2.2 captioned ``Application Notes'' is 
amended in the first paragraph of Note 3, as redesignated by this 
amendment, by inserting ``Upward Departure Provision.--'' before ``If 
the defendant''; and by striking ``Prior convictions'' and all that 
follows through ``(Criminal History).''.
    The Commentary to Sec.  2G2.2 captioned ``Application Notes'' is 
amended in Note 4, as redesignated by this amendment, by inserting 
``Cross Reference at Subsection (c)(1).--'' before ``The cross 
reference''.

B. Simple Possession Offenses Under Sec.  2G2.4

    Section 2G2.4(a) is amended by striking ``15'' and inserting 
``[18][20]''.
    Section 2G2.4(b) is amended [by striking subdivision (2) in its 
entirety;] by striking subdivision (3) in its entirety; by 
redesignating subdivisions (4) and (5) as subdivisions (3) and (4), 
respectively; and by inserting after subdivision (1) the following new 
subdivision (2):
    ``(2) If the [defendant's possession of the material resulted from 
the defendant's][offense involved the] use of a computer or an 
interactive computer service, increase by 2 levels.''.
    Section 2G2.4(c)(2) is amended by striking ``(including receiving, 
transporting, shipping, advertising, or possessing material involving 
the sexual exploitation of a minor with intent to traffic)'' and 
inserting ``including (A) receiving material involving the sexual 
exploitation of a minor [with intent to traffic]; (B) transporting, 
shipping, or advertising material involving the sexual exploitation of 
a minor; or (C) possessing with intent to traffic material involving 
the sexual exploitation of a minor''.
    The Commentary to Sec.  2G2.4 captioned ``Statutory Provision'' is 
amended by striking ``Provision: 18 U.S.C. 2252(a)(4)'' and inserting 
``Provisions: 18 U.S.C. 1466A(b), 2252(a)(4), 2252A(a)(5)''.
    The Commentary to Sec.  2G2.4 captioned ``Application Notes'' is 
amended in Note 1 by striking:
    ``For purposes of this guideline--'' and inserting:
    ``Definitions.--For purposes of this guideline:
    `Computer' has the meaning given that term in 18 U.S.C. 1030(e)(1).
    `Image' means any visual depiction described in 18 U.S.C. 2256(5) 
and (8).
    `Interactive computer service' has the meaning given that term in 
section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. 
230(f)(2)).''.
    [The Commentary to Sec.  2G2.4 captioned ``Application Notes'' is 
amended by striking Note 2 in its entirety.]
    The Commentary to Sec.  2G2.4 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``2. Cross Reference at Subsection (c)(1).--For purposes of 
subsection (c)(1), ``minor'' includes (A) an individual who had not 
attained the age of 18 years; (B) an individual, whether fictitious or 
not, who a law enforcement officer represented to a participant (i) had 
not attained the age of 18 years, and (ii) could be provided for the 
purposes of engaging in sexually explicit conduct; and (C) an 
undercover law enforcement officer who represented to a participant 
that the officer had not attained the age of 18 years.
    3. Upward Departure Provision.--If the offense involved 
substantially more than 600 images, an upward departure may be 
warranted, regardless of whether subsection (b)(5) applies.''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. 1466 the following new lines:
    ``18 U.S.C. 1466A(a) 2G2.2
    18 U.S.C. 1466A(b) 2G2.4'';
by striking the following:
    18 U.S.C. 2252 2G2.2, 2G2.4
    18 U.S.C. 2252A 2G2.2, 2G2.4'',
and inserting the following:
    ``18 U.S.C. 2252 (a)(1)-(3) 2G2.2
    18 U.S.C. 2252(a)(4) 2G2.4
    18 U.S.C. 2252A(a)(1)-(4), (6) 2G2.2
    18 U.S.C. 2252A(a)(5) 2G2.4'';

[[Page 75346]]

and by striking the following:
    ``18 U.S.C. 2260 2G2.1, 2G2.2'',
and inserting the following:
    ``18 U.S.C. 2260(a) 2G2.1
    18 U.S.C. 2260(b) 2G2.2''.

C. Consolidation of Sec. Sec.  2G2.2 and 2G2.4

    Chapter Two, Part G, Subpart 2, is amended by striking Sec. Sec.  
2G2.2 and 2G2.4 in their entirety and inserting the following new 
guideline and replacement commentary:
``Sec.  2G2.2. Trafficking in Material Involving the Sexual 
Exploitation of a Minor; Receiving, Transporting, Shipping, Soliciting, 
or Advertising Material Involving the Sexual Exploitation of a Minor; 
Possessing Material Involving the Sexual Exploitation of a Minor With 
Intent To Traffic; Possessing Material Depicting a Minor Engaged in 
Sexually Explicit Conduct
(a) Base Offense Level
    [Option 1: (1) [15][18][20], if (A) the defendant's conduct was 
limited to the possession, receipt, or solicitation of material 
involving the sexual exploitation of a minor; and (B) the defendant did 
not intend to traffic in, or distribute, such material; or
    (2) [22][24][25][26], otherwise.]
    [Option 2:(a) (1) [15][18][20], if the defendant's conduct was 
limited to the possession of material involving the sexual exploitation 
of a minor without an intent to traffic in, or distribute, such 
material;
    (2) [20][22][24], if (A) the defendant's conduct was limited to the 
receipt or solicitation of material involving the sexual exploitation 
of a minor; and (B) the defendant did not intend to traffic in, or 
distribute, such material; or
    (3) [22][24][25][26], otherwise.]
(b) Specific Offense Characteristics
    (1) If the material involved a prepubescent minor or a minor under 
the age of 12 years, increase by 2 levels.
    (2) (Apply the Greatest) If the [defendant's conduct] [offense] 
involved:
    (A) Distribution for pecuniary gain, increase by the number of 
levels from the table in Sec.  2B1.1 (Theft, Property Destruction, and 
Fraud) corresponding to the retail value of the material, but by not 
less than 5 levels.
    (B) Distribution for the receipt, or expectation of receipt, of a 
thing of value, but not for pecuniary gain, increase by 5 levels.
    (C) Distribution to a minor, increase by 5 levels.
    (D) Distribution to a minor that was intended to persuade, induce, 
entice, or coerce the minor to engage in any illegal activity, increase 
by 6 levels.
    (E) Distribution to a minor that was intended to persuade, induce, 
entice, coerce, or facilitate the travel of, the minor to engage in 
prohibited sexual conduct, increase by 7 levels.
    (F) Distribution other than distribution described in subdivisions 
(A) through (E), increase by 2 levels.
    (3) If the offense involved material that portrays sadistic or 
masochistic conduct or other depictions of violence, increase by 4 
levels.
    (4) If the defendant engaged in a pattern of activity involving the 
sexual abuse or exploitation of a minor, increase by 5 levels.
    (5) If a computer or an interactive computer service was used for 
the possession, transmission, receipt, or distribution of the material 
or a notice or advertisement of the material, increase by 2 levels.
    (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;
    (C) at least 300 images, but fewer than 600, increase by 4 levels; 
and
    (D) 600 or more images, increase by 5 levels.
(c) Cross Reference
    (1) If the offense involved causing, transporting, permitting, or 
offering or seeking by notice or advertisement, a minor to engage in 
sexually explicit conduct for the purpose of producing a visual 
depiction of such conduct, apply 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), if the resulting 
offense level is greater than that determined above.

Commentary

    Statutory Provisions: 18 U.S.C. 1466A, 2252, 2252A, 2260(b).
    Application Notes:
    1. Definitions.--For purposes of this guideline:
    `Computer' has the meaning given that term in 18 U.S.C. 1030(e)(1).
    `Image' means any visual depiction described in 18 U.S.C. 2256(5) 
and (8).
    `Interactive computer service' has the meaning given that term in 
230(e)(2) of the Communications Act of 1934 (47 U.S.C. 230(f)(2)).
    `Distribution' means any act, including production, transportation, 
and possession with intent to distribute, related to the transfer of 
material involving the sexual exploitation of a minor. Accordingly, 
distribution includes posting material involving the sexual 
exploitation of a minor on a website for public viewing but does not 
include the mere solicitation of such material by a defendant.
    `Distribution for pecuniary gain'' means distribution for profit.
    `Distribution for the receipt, or expectation of receipt, of a 
thing of value, but not for pecuniary gain' means any transaction, 
including bartering or other in-kind transaction, that is conducted for 
a thing of value, but not for profit. `Thing of value' means anything 
of valuable consideration. For example, in a case involving the 
bartering of child pornographic material, the `thing of value' is the 
child pornographic material received in exchange for other child 
pornographic material bartered in consideration for the material 
received.
    `Distribution to a minor' means the knowing distribution to an 
individual who is a minor at the time of the offense, knowing or 
believing the individual is a minor at that time.
    `Minor' means (A) an individual who had not attained the age of 18 
years; (B) an individual, whether fictitious or not, who a law 
enforcement officer represented to a participant (i) had not attained 
the age of 18 years, and (ii) could be provided for the purposes of 
engaging in sexually explicit conduct; and (C) an undercover law 
enforcement officer who represented to a participant that the officer 
had not attained the age of 18 years.
    `Pattern of activity involving the sexual abuse or exploitation of 
a minor' means any combination of two or more separate instances of the 
sexual abuse or sexual exploitation of a minor by the defendant, 
whether or not the abuse or exploitation (A) occurred during the course 
of the offense; (B) involved the same minor; or (C) resulted in a 
conviction for such conduct.
    `Prohibited sexual conduct' has the meaning given that term in 
Application Note 1 of the Commentary to Sec.  2A3.1 (Criminal Sexual 
Abuse; Attempt to Commit Criminal Sexual Abuse).
    `Sexual abuse or exploitation' means conduct constituting criminal 
sexual abuse of a minor, sexual exploitation of a minor, abusive sexual 
contact of a minor, any similar offense under state law, or an attempt 
or conspiracy to commit any of the above offenses. ``Sexual abuse or 
exploitation' does not include trafficking in material relating to the 
sexual abuse or exploitation of a minor.
    `Sexually explicit conduct' has the meaning given that term in 18 
U.S.C. 2256.

[[Page 75347]]

    2. Application of Subsection (b)(4).--Prior convictions taken into 
account under subsection (b)(4) are also counted for purposes of 
determining criminal history points pursuant to Chapter Four, Part A 
(Criminal History).
    3. Upward Departure Provision.--If the defendant engaged in the 
sexual abuse or exploitation of a minor at any time (whether or not 
such abuse or exploitation occurred during the course of the offense or 
resulted in a conviction for such conduct) and subsection (b)(4) does 
not apply, an upward departure may be warranted. In addition, an upward 
departure may be warranted if the defendant received an enhancement 
under subsection (b)(4) but that enhancement does not adequately 
reflect the seriousness of the sexual abuse or exploitation involved.
    4. Cross Reference at Subsection (c)(1).--The cross reference in 
subsection (c)(1) is to be construed broadly to include all instances 
where the offense involved employing, using, persuading, inducing, 
enticing, coercing, transporting, permitting, or offering or seeking by 
notice or advertisement, a minor to engage in sexually explicit conduct 
for the purpose of producing any visual depiction of such conduct.
    Background: Section 401(i)(1)(C) of Public Law 108-21 directly 
amended subsection (b) to add subdivision (6), effective April 30, 
2003.'.

D. Production Offenses Under Sec.  2G2.1

    Section 2G2.1(a) is amended by striking ``27'' and inserting 
``[30][32][34][35][36]''.
    Section 2G2.1(b) is amended in subdivision (1) by striking 
``victim'' and inserting ``minor''; by redesignating subdivisions (2) 
and (3) as subdivisions (6) and (7), respectively; and by inserting 
after subdivision (1) the following:
    `(2) If the offense involved material that portrays sadistic or 
masochistic conduct or other depictions of violence, increase by [2][4] 
levels.
    (3) If the offense involved the commission of a sexual act or 
sexual contact, increase by 2 levels.
    (4) If the offense involved conduct described in 18 U.S.C. Sec.  
2241(a) or (b), increase by [2][4] levels.
    (5) If the offense involved distribution, increase by [2][5][7] 
levels.''.
    Section 2G2.1(b) is amended in subdivision (7), as redesignated by 
this amendment, by striking ``Internet-access device'' and inserting 
``interactive computer service''.
    Section 2G2.1 is amended by redesignating subsection (c) as 
subsection (d); and by inserting after subsection (b) the following:
    ``(c) Cross reference
    (1) If the victim was killed in circumstances that would constitute 
murder under 18 U.S.C. 1111 had such killing taken place within the 
territorial or maritime jurisdiction of the United States, apply Sec.  
2A1.1 (First Degree Murder), if the resulting offense level is greater 
than that determined above.''.
    The Commentary to Sec.  2G2.1 captioned ``Statutory Provisions'' is 
amended by striking ``(a), (b), (c)(1)(B)''.
    The Commentary to Sec.  2G2.1 captioned ``Application Notes'' is 
amended by striking Notes 1, 2, 3, and 4 in their entirety and 
inserting the following:
    ``1. Definitions.--For purposes of this guideline:
    `Conduct described in 18 U.S.C. 2241(a) or (b)' is: Using force 
against the minor; threatening or placing the minor in fear that any 
person will be subject to death, serious bodily injury, or kidnapping; 
rendering the minor unconscious; or administering by force or threat of 
force, or without the knowledge or permission of the minor, a drug, 
intoxicant, or other similar substance and thereby substantially 
impairing the ability of the minor to appraise or control conduct. This 
provision would apply, for example, if any dangerous weapon was used or 
brandished, or in a case in which the ability of the minor to appraise 
or control conduct was substantially impaired by drugs or alcohol.
    `Computer' has the meaning given that term in 18 U.S.C. 1030(e)(1).
    `Distribution' means any act, including production, transportation, 
and possession with intent to distribute, related to the transfer of 
material involving the sexual exploitation of a minor. Accordingly, 
distribution includes posting material involving the sexual 
exploitation of a minor on a website for public viewing but does not 
include the mere solicitation of such material by a defendant.
    `Interactive computer service' has the meaning given that term in 
section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. 
230(f)(2)).
    `Minor' means (A) an individual who had not attained the age of 18 
years; (B) an individual, whether fictitious or not, who a law 
enforcement officer represented to a participant (i) had not attained 
the age of 18 years, and (ii) could be provided for the purposes of 
engaging in sexually explicit conduct; and (C) an undercover law 
enforcement officer who represented to a participant that the officer 
had not attained the age of 18 years.
    `Sexual act' has the meaning given that term in 18 U.S.C. 2246(2).
    `Sexual contact' has the meaning given that term in 18 U.S.C. 
2246(3).
    `Sexually explicit conduct' has the meaning given that term in 18 
U.S.C. 2256.
    2. Custody, Care, or Supervisory Control Enhancement.--
    (A) In General.--Subsection (b)(6) is intended to have broad 
application and includes offenses involving a minor entrusted to the 
defendant, whether temporarily or permanently. For example, teachers, 
day care providers, baby-sitters, or other temporary caretakers are 
among those who would be subject to this enhancement. In determining 
whether to apply this adjustment, the court should look to the actual 
relationship that existed between the defendant and the child and not 
simply to the legal status of the defendant-child relationship.
    (B) Inapplicability of Enhancement.--If the adjustment in 
subsection (b)(6) applies, do not apply Sec.  3B1.3 (Abuse of Position 
of Trust or Use of Special Skill).'';

by redesignating Note 5 as Note 3; by inserting after Note 3, as 
redesignated by this amendment, the following:
    ``4. Special Instruction at Subsection (d)(1).--For the purposes of 
Chapter Three, Part D (Multiple Counts), each minor exploited is to be 
treated as a separate minor. Consequently, multiple counts involving 
the exploitation of different minors are not to be grouped together 
under Sec.  3D1.2 (Groups of Closely Related Counts). Subsection (d)(1) 
directs that if the relevant conduct of an offense of conviction 
includes more than one minor being exploited, whether specifically 
cited in the count of conviction or not, each such minor shall be 
treated as if contained in a separate count of conviction.'';

and by redesignating Note 6 as Note 5.
    The Commentary to Sec.  2G2.1 captioned ``Application Notes'' is 
amended in Note 3, as redesignated by this amendment, by inserting 
before ``The enhancement in subsection'' the following:
    ``Application of Subsection (b)(7)(A).--
    (A) Misrepresentation of Participant's Identity.--

by striking ``(3)(A)'' each place it appears and inserting ``(7)(A)''; 
by striking ``Subsection (b)(3)(B)(i) provides'' and inserting:
    ``(B) Use of a Computer or an Interactive Computer Service.--

Subsection (b)(7)(b)(i) provides'';

by striking ``(b)(3)(B)(i) is intended'' and inserting ``(b)(7)(B)(i) 
is intended''; and

[[Page 75348]]

by striking ``Internet-access device'' each place it appears and 
inserting ``interactive computer service''.
    The Commentary to Sec.  2G2.1 captioned ``Application Notes'' is 
amended in Note 5, as redesignated by this amendment, by striking 
``victims'' and inserting ``minors''.

II. Travel and Transportation Cases

    Chapter Two, Part G, Subpart 1 is amended by adding at the end the 
following new guideline and accompanying commentary:
``Sec.  2G1.3 Promoting a Commercial Sex Act or Prohibited Sexual 
Conduct With a Minor; Transportation of Minors To Engage in a 
Commercial Sex Act or Prohibited Sexual Conduct; Travel To Engage in 
Commercial Sex Act or Prohibited Sexual Conduct With a Minor; Use of 
Interstate Facilities To Transport Information About a Minor
(a) Base Offense Level: [22][24][25][26]
(b) Specific Offense Characteristics
    (1) If the offense involved a sexual act or sexual contact, 
increase by 2 levels.
    (2) If the offense involved conduct described in 18 U.S.C. Sec.  
2241(a) or (b), increase by 4 levels.
    [Option 1A: (3) If the offense involved a minor who had not 
attained the age of 12 years, increase by [4][6][8] levels.]
    (4) If (A) the minor sustained permanent or life-threatening bodily 
injury, increase by 4 levels; (B) the minor 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.
    (5) If the defendant was a parent, relative, or legal guardian of 
the minor; or the minor was otherwise in the custody, care, or 
supervisory control of the defendant, increase by 2 levels.
    (6) If the offense involved the knowing misrepresentation of a 
participant's identity to persuade, induce, entice, coerce, or 
facilitate the travel of the minor to engage in a commercial sex act or 
prohibited sexual conduct, increase by 2 levels.
    (7) If [the defendant used][the offense involved the use of] a 
computer or an interactive computer service to (A) persuade, induce, 
entice, coerce, or facilitate the travel of, the minor to engage in a 
commercial sex act or prohibited sexual conduct; or (B) entice, 
encourage, offer, or solicit a person to engage in a commercial sex act 
or prohibited sexual conduct with the minor, increase by 2 levels.
    [Option 2A: (8) If, for the purposes of commercial advantage or 
private financial gain, the defendant knowingly arranged, induced, 
procured, or facilitated the travel of a participant knowing that the 
participant was traveling for the purpose of engaging in illicit sexual 
conduct, increase by [2] levels.]
    [Option 2B: (8) If the offense involved conduct described in 18 
U.S.C. 2423(d), increase by [2] levels.]
(c) Cross Reference
    (1) If the offense involved causing, transporting, permitting, or 
offering or seeking by notice or advertisement, a minor to engage in 
sexually explicit conduct for the purpose of producing a visual 
depiction of such conduct, apply 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), if the resulting 
offense level is greater than that determined above.
    (2) If a minor was killed under circumstances that would constitute 
murder under 18 U.S.C. 1111 had such killing taken place within the 
territorial or maritime jurisdiction of the United States, apply Sec.  
2A1.1 (First Degree Murder), if the resulting offense level is greater 
than that determined above.
    [Option 1B: (3) If the offense involved criminal sexual abuse, 
attempted criminal sexual abuse, or assault with intent to commit 
criminal sexual abuse, apply Sec.  2A3.1 (Criminal Sexual Abuse; 
Attempt to Commit Criminal Sexual Abuse), if the resulting offense 
level is greater than that determined above. If the offense involved 
criminal sexual abuse of a minor who had not attained the age of 12 
years, Sec.  2A3.1 shall apply, regardless of the `consent' of the 
minor.]
(d) Special Instruction
    (1) If the offense involved more than one victim, Chapter Three, 
Part D (Multiple Counts) shall be applied as if the travel or 
transportation to engage in a commercial sex act or prohibited sexual 
conduct in respect to each victim had been contained in a separate 
count of conviction.

Commentary

    Statutory Provisions: 8 U.S.C. 1328 (only if the offense involved a 
victim who had not attained the age of 18 years at the time of the 
commission of the offense); 18 U.S.C. 1591 (only if the offense 
involved a victim who had not attained the age of 18 years at the time 
of the commission of the offense), 2421 (only if the offense involved a 
victim who had not attained the age of 18 years at the time of the 
commission of the offense), 2422 (only if the offense involved a victim 
who had not attained the age of 18 years at the time of the commission 
of the offense), 2422(b), 2423, [2425].
    Application Notes:
    1. Definitions.--For purposes of this guideline:
    `Commercial sex act' has the meaning given that term in 18 U.S.C. 
1591(c)(1).
    `Computer' has the meaning given that term in 18 U.S.C. 1030(e)(1).
    `Interactive computer service' has the meaning given that term in 
section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. 
230(f)(2)).
    `Illicit sexual conduct' has the meaning given that term in 18 
U.S.C. 2423(f).
    `Minor' means (A) an individual who had not attained the age of 18 
years; (B) an individual, whether fictitious or not, who a law 
enforcement officer represented to a participant (i) had not attained 
the age of 18 years, and (ii) could be provided for the purposes of 
engaging in sexually explicit conduct; and (C) an undercover law 
enforcement officer who represented to a participant that the officer 
had not attained the age of 18 years.
    `Participant' has the meaning given that term in Application Note 1 
of Sec.  3B1.1 (Aggravating Role).
    `Permanent or life-threatening bodily injury,' `serious bodily 
injury,' and `abducted' have the meaning given those terms in the 
Commentary to Sec.  1B1.1 (Application Instructions). However, for 
purposes of this guideline, `serious bodily injury' means conduct other 
than criminal sexual abuse, which already is taken into account in the 
base offense level under subsection (a).
    `Prohibited sexual conduct' has the meaning given that term in 
Application Note 1 of Sec.  2A3.1 (Criminal Sexual Abuse; Attempt to 
Commit Criminal Sexual Abuse).
    `Sexual act' has the meaning given that term in 18 U.S.C. 2246(2).
    `Sexual contact' has the meaning given that term in 18 U.S.C. 
2246(3).
    2. Application of Subsection (b)(2).--`Conduct described in 18 
U.S.C. 2241(a) or (b)' is: using force against the minor; threatening 
or placing the minor in fear that any person will be subject to death, 
serious bodily injury, or kidnapping; rendering the minor unconscious; 
or administering by force or threat of force, or without the knowledge 
or permission of the minor, a drug, intoxicant, or other similar 
substance and thereby substantially impairing the ability of the minor 
to appraise or control conduct. This provision would apply, for 
example, if any dangerous weapon was used or brandished, or in a case 
in which the ability of the minor to

[[Page 75349]]

appraise or control conduct was substantially impaired by drugs or 
alcohol.
    3. Custody, Care, or Supervisory Control Enhancement.--
    (A) In General.--Subsection (b)(5) is intended to have broad 
application and includes offenses involving a victim less than 18 years 
of age entrusted to the defendant, whether temporarily or permanently. 
For example, teachers, day care providers, baby-sitters, or other 
temporary caretakers are among those who would be subject to this 
enhancement. In determining whether to apply this enhancement, the 
court should look to the actual relationship that existed between the 
defendant and the victim and not simply to the legal status of the 
defendant-victim relationship.
    (B) Inapplicability of Enhancement.--If the enhancement in 
subsection (b)(5) applies, do not apply Sec.  3B1.3 (Abuse of Position 
of Trust or Use of Special Skill).
    4. Misrepresentation of Participant's Identity.--The enhancement in 
subsection (b)(6) applies in cases involving the misrepresentation of a 
participant's identity to persuade, induce, entice, coerce, or 
facilitate the travel of, a minor to engage in a commercial sex act or 
prohibited sexual conduct. Subsection (b)(6) is intended to apply only 
to misrepresentations made directly to a minor or to a person who 
exercises custody, care, or supervisory control of the minor. 
Accordingly, the enhancement in subsection (b)(6) would not apply to a 
misrepresentation made by a participant to an airline representative in 
the course of making travel arrangements for the minor.
    The misrepresentation to which the enhancement in subsection (b)(6) 
may apply includes misrepresentation of a participant's name, age, 
occupation, gender, or status, as long as the misrepresentation was 
made with the intent to persuade, induce, entice, coerce, or facilitate 
the travel of, a minor to engage in a commercial sex act or prohibited 
sexual conduct. Accordingly, use of a computer screen name, without 
such intent, would not be a sufficient basis for application of the 
enhancement.
    5. Use of a Computer or an Interactive Computer Service.--
Subsection (b)(7) is intended to apply only to the use of a computer or 
an interactive computer service to communicate directly with a minor or 
with a person who exercises custody, care, or supervisory control of 
the minor. Accordingly, the enhancement in subsection (b)(7) would not 
apply to the use of a computer or an interactive computer service to 
obtain airline tickets for the minor from an airline's Internet site.
    6. Cross Reference.--The cross reference in subsection (c)(1) is to 
be construed broadly to include all instances in which the offense 
involved employing, using, persuading, inducing, enticing, coercing, 
transporting, permitting, or offering or seeking by notice or 
advertisement, a person less than 18 years of age to engage in sexually 
explicit conduct for the purpose of producing any visual depiction of 
such conduct. For purposes of subsection (c)(1), `sexually explicit 
conduct' has the meaning given that term in 18 U.S.C. Sec.  2256.
    7. Special Instruction for Cases Involving Multiple Victims at 
Subsection (d)(1).--
    (A) In General.--For the purposes of Chapter Three, Part D 
(Multiple Counts), each person transported, persuaded, induced, 
enticed, or coerced to engage in, or travel to engage in, a commercial 
sex act or prohibited sexual conduct is to be treated as a separate 
victim. Consequently, multiple counts involving more than one victim 
are not to be grouped together under Sec.  3D1.2 (Groups of Closely-
Related Counts). In addition, subsection (d)(1) directs that if the 
relevant conduct of an offense of conviction includes travel or 
transportation to engage in a commercial sex act or prohibited sexual 
conduct in respect to more than one victim, whether specifically cited 
in the count of conviction, each such victim shall be treated as if 
contained in a separate count of conviction.
    (B) Definition of Victim.--For purposes of subsection (d)(1), a 
victim includes (A) an individual who had not attained the age of 18 
years; or (B) an individual, whether fictitious or not, who a law 
enforcement officer represented to a participant (i) had not attained 
the age of 18 years, and (ii) could be provided for the purposes of 
engaging in sexually explicit conduct; and (C) an undercover law 
enforcement officer who represented to a participant that the officer 
had not attained the age of 18 years.
    8. Aggravating Role.--For the purposes of Sec.  3B1.1 (Aggravating 
Role), a minor, as defined in this guideline, is considered a 
participant only if that minor assisted in the promoting of a 
commercial sex act or prohibited sexual conduct in respect to another 
minor.
    9. Upward Departure Provision.--An upward departure may be 
warranted if the offense involved more than ten victims.
    Background: This guideline covers offenses under Chapter 117 of 
title 18, United States Code, involving transportation of a minor for 
illegal sexual activity through a variety of means.''.
    Chapter Two, Part G, Subpart 1 is amended by striking Sec.  2G1.1 
and accompanying commentary in its entirety and inserting the following 
new guideline:
Sec.  2G1.1. Promoting a Commercial Sex Act or Prohibited Sexual 
Conduct With an Individual Other Than a Minor
(a) Base Offense Level: 14
(b) Specific Offense Characteristic
    (1) If the offense involved the use of physical force, fraud, or 
coercion, increase by 4 levels.
(c) Cross Reference
    (1) If the offense involved criminal sexual abuse, attempted 
criminal sexual abuse, or assault with intent to commit criminal sexual 
abuse, apply Sec.  2A3.1 (Criminal Sexual Abuse; Attempt to Commit 
Criminal Sexual Abuse).
(d) Special Instruction
    (1) If the offense involved more than one victim, Chapter Three, 
Part D (Multiple Counts) shall be applied as if the promoting of a 
commercial sex act or prohibited sexual conduct in respect to each 
victim had been contained in a separate count of conviction.

Commentary

    Statutory Provisions: 8 U.S.C. 1328 (only if the offense involved a 
victim who had attained the age of 18 years at the time of the 
commission of the offense); 18 U.S.C. 1591 (only if the offense 
involved a victim who had attained the age of 18 years at the time of 
the commission of the offense), 2421 (only if the offense involved a 
victim who had attained the age of 18 years at the time of the 
commission of the offense), 2422(a) (only if the offense involved a 
victim who had attained the age of 18 years at the time of the 
commission of the offense).
    Application Notes:
    1. Definitions.--For purposes of this guideline:
    `Commercial sex act' has the meaning given that term in 18 U.S.C. 
1591(c)(1).
    `Prohibited sexual conduct' has the meaning given that term in 
Application Note 1 of Sec.  2A3.1 (Criminal Sexual Abuse; Attempt to 
Commit Criminal Sexual Abuse).
    `Promoting a commercial sex act' means persuading, inducing, 
enticing, or coercing a person to engage in a commercial sex act, or to 
travel to engage in, a commercial sex act.
    `Victim' means a person transported, persuaded, induced, enticed, 
or coerced

[[Page 75350]]

to engage in, or travel for the purpose of engaging in, a commercial 
sex act or prohibited sexual conduct, whether or not the person 
consented to the commercial sex act or prohibited sexual conduct. 
Accordingly, `victim' may include an undercover law enforcement 
officer.
    2. Application of Subsection (b)(1).--Subsection (b)(1) provides an 
enhancement for physical force, fraud, or coercion, that occurs as part 
of a commercial sex act offense and anticipates no bodily injury. If 
bodily injury results, an upward departure may be warranted. See 
Chapter Five, Part K (Departures). For purposes of subsection 
(b)(1)(B), `coercion' includes any form of conduct that negates the 
voluntariness of the behavior of the victim. This enhancement would 
apply, for example, in a case in which the ability of the victim to 
appraise or control conduct was substantially impaired by drugs or 
alcohol. This characteristic generally will not apply if the drug or 
alcohol was voluntarily taken.
    3. Application of Aggravating Role Enhancement.--For the purposes 
of Sec.  3B1.1 (Aggravating Role), a victim, as defined in this 
guideline, is considered a participant only if that victim assisted in 
the promoting of a commercial sex act or prohibited sexual conduct in 
respect to another victim.
    4. Special Instruction at Subsection (d)(1).--For the purposes of 
Chapter Three, Part D (Multiple Counts), each person transported, 
persuaded, induced, enticed, or coerced to engage in, or travel to 
engage in, a commercial sex act or prohibited sexual conduct is to be 
treated as a separate victim. Consequently, multiple counts involving 
more than one victim are not to be grouped together under Sec.  3D1.2 
(Groups of Closely Related Counts). In addition, subsection (d)(1) 
directs that if the relevant conduct of an offense of conviction 
includes the promoting of a commercial sex act or prohibited sexual 
conduct in respect to more than one victim, whether specifically cited 
in the count of conviction, each such victim shall be treated as if 
contained in a separate count of conviction.
    5. Cross Reference at Subsection (c)(1).--Subsection (c)(1) 
provides a cross reference to Sec.  2A3.1 (Criminal Sexual Abuse; 
Attempt to Commit Criminal Sexual Abuse) if the offense involved 
criminal sexual abuse or attempt to commit criminal sexual abuse, as 
defined in 18 U.S.C. 2241 or 2242. For example, the cross reference to 
Sec.  2A3.1 shall apply if the offense involved criminal sexual abuse 
and the victim was threatened or placed in fear other than fear of 
death, serious bodily injury, or kidnapping (see 18 U.S.C. 2242(1)).
    6. Upward Departure Provision.--An upward departure may be 
warranted if the offense involved more than ten victims.
    Background: This guideline covers offenses that involve promoting 
prostitution or prohibited sexual conduct with an adult through a 
variety of means. Offenses that involve promoting prostitution or 
prohibited sexual conduct are sentenced under this guideline, unless 
criminal sexual abuse occurs as part of the offense, in which case the 
cross reference would apply.
    This guideline also covers offenses under section 1591 of title 18, 
United States Code, that involve recruiting or transporting a person, 
other than a minor, in interstate commerce knowing that force, fraud, 
or coercion will be used to cause the person to engage in a commercial 
sex act.
    Offenses of promoting prostitution or prohibited sexual conduct in 
which a minor victim is involved are to be sentenced under Sec.  2G1.3 
(Promoting Prostitution or Prohibited Sexual Conduct with a Minor; 
Transportation of Minors to Engage in a Commercial Sex Act or 
Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or 
Prohibited Sexual Conduct with a Minor; Use of Interstate Facilities to 
Transport Information about a Minor).''.

II. Misleading Domain Names

    Section 2G3.1 is amended in the heading by adding at the end ``; 
Misleading Domain Names'' after ``Minor''.
    Section 2G3.1(b)(1) is amended by redesignating subdivisions (D) 
and (E) as subdivisions (E) and (F), respectively; and by inserting 
after subdivision (C) the following new subdivision:
    ``(D) Distribution to a minor that was intended to persuade, 
induce, entice, or coerce the minor to engage in any illegal activity, 
increase by 6 levels.'';

and in subdivision (F), as redesignated by this amendment, by striking 
``(D)'' and inserting ``(E)''.
    Section 2G3.1(b) is amended by redesignating subdivision (2) as 
subdivision (4); by inserting after subdivision (1) the following new 
subdivisions (2) and (3):
    ``(2) If the offense involved the use of a misleading domain name 
on the Internet with the intent to deceive a [minor][person] into 
viewing material on the Internet that is harmful to minors, increase by 
2 levels.
    (3) If [the defendant used][the offense involved the use of] a 
computer or an interactive computer service, increase by 2 levels.''[;

and by adding at the end the following new subdivision:
    ``(5) If the offense involved material that was advertised or 
described to include a minor engaged in sexually explicit conduct, 
increase by [2][4] levels.''].
    The Commentary to Sec.  2G3.1 captioned ``Statutory Provisions'' is 
amended by inserting ``; 2252B'' after ``1470''.
    The Commentary to Sec.  2G3.1 captioned ``Application Note'' is 
amended by striking ``Note'' and inserting ``Notes''; in Note 1 by 
striking ``For purposes of this guideline.--'' and inserting 
``Definitions.--For purposes of this guideline:''; in the paragraph 
that begins `` `Distribution' means'' by inserting ``Accordingly, 
distribution includes posting material on a website for public 
viewing.'' after ``obscene matter.''; by striking the paragraph that 
begins `` `Minor' means'' and inserting the following:
    `` `Material that is harmful to minors' has the meaning given that 
term in 18 U.S.C. 2252B(d)(3).
    `Minor' means (A) an individual who had not attained the age of 18 
years; (B) an individual, whether fictitious or not, who a law 
enforcement officer represented to a participant (i) had not attained 
the age of 18 years, and (ii) could be provided for the purposes of 
engaging in sexually explicit conduct; and (C) an undercover law 
enforcement officer who represented to a participant that the officer 
had not attained the age of 18 years.'';

by adding at the end the following new paragraph:
    `` `Sexually explicit conduct' has the meaning given that term in 
18 U.S.C. 2256(2)(A).'';

and by adding after Note 1 the following new note:
    ``2. Use of a Computer or an Interactive Computer Service.--
Subsection (b)(5) is intended to apply only to the use of a computer or 
an interactive computer service to communicate directly with a minor or 
with a person who exercises custody, care, or supervisory control of 
the minor. Accordingly, the enhancement in subsection (b)(5) would not 
apply to the use of a computer or an interactive computer service to 
obtain airline tickets for the minor from an airline's Internet 
site.''.
    Appendix A (Statutory Index) is amended by inserting before the 
line reference to ``18 U.S.C. 2257'' the following new line:
    ``18 U.S.C. 2252B 2G3.1''.
    Section 3D1.2(d) is amended by inserting ``, 2G3.1'' after 
``2G2.4''.

[[Page 75351]]

III. Conditions of Supervised Release

    Section 5B1.3(d)(7) is amended by striking ``If the instant'' and 
all that follows through ``sex offenders.'' and inserting the 
following:
    ``If the instant offense of conviction is a sex offense, as defined 
in Sec.  5D1.2 (Term of Supervised Release)--
    (A) A condition requiring the defendant to participate in a program 
approved by the United States Probation Office for the treatment and 
monitoring of sex offenders.
    [(B) A condition limiting [or prohibiting] the use of a computer or 
an interactive computer service in cases in which the [defendant 
used][offense involved] the use of such items.]''.
    Section 5D1.2 is amended in subsection (a) by striking ``Subject 
to'' and inserting ``Except as provided in''; in subsection (b) by 
inserting ``(1)'' before ``shall''; and by inserting before the period 
the following:
    ``; or (2) in the case of a sex offense conviction, shall be not 
less than the minimum term of years specified for that class of offense 
under subdivisions (a)(1) through (a)(3), and may be up to life''.
    Section 5D1.3(d)(7) is amended by striking ``If the instant'' and 
all that follows through ``sex offenders.'' and inserting the 
following:
    ``If the instant offense of conviction is a sex offense, as defined 
in Sec.  5D1.2 (Terms of Supervised Release)--
    (A) A condition requiring the defendant to participate in a program 
approved by the United States Probation Office for the treatment and 
monitoring of sex offenders.
    [(B) A condition limiting [or prohibiting] the use of a computer or 
an interactive computer service in cases in which the [defendant 
used][the offense involved] the use of such items.]''.

IV. Chapter Two, Part A, Subpart 3 (Criminal Sexual Abuse) Amendments

    [Option 1:
    Section 2A3.1 is amended by striking subsection (a) in its entirety 
and inserting the following:
    ``(a) Base Offense Level:
    (1) [30][32][34][36], if the offense involved a minor; or
    (2) [27-30], otherwise.]''.
    [Option 2:
    Section 2A3.1 is amended by striking subsection (a) in its entirety 
and inserting the following:
    ``(a) Base Offense Level: [27-30]'';
    Section 2A3.1(b) is amended by striking subdivision (1) in its 
entirety and inserting the following:
    ``(1) If the offense involved conduct described in 18 U.S.C. 
2241(a) or (b), increase by 4 levels.''.]
    Section 2A3.1(b) is amended in subdivision (6) by striking 
``Internet-access device'' and inserting ``interactive computer 
service''.
    [Option 2:
    Section 2A3.1(b) is amended by adding at the end the following:
    ``(7) If (A) a minor was involved; and (B) the offense was 
committed in connection with the possession, distribution, or 
production of child pornography, increase by [3][5][7] levels.''.]
    [Option 3:
    Section 2A3.1(c) is amended by striking ``Cross Reference'' and 
inserting ``Cross References''; and by adding at the end the following:
    ``(2) If the offense involved causing, transporting, permitting, or 
offering or seeking by notice or advertisement, a minor to engage in 
sexually explicit conduct for the purpose of producing a visual 
depiction of such conduct, apply 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), if the resulting 
offense level is greater than that determined above.''].
    Section 2A3.1(c)(1) is amended by inserting ``, if the resulting 
offense level is greater than that determined above'' after 
``Murder)''.
    The Commentary to Sec.  2A3.1 captioned ``Application Notes'' is 
amended by striking Note 1 in its entirety and inserting the following:
    ``1. Definitions.--For purposes of this guideline:
    `Child pornography' has the meaning given that term in 18 U.S.C. 
2256(8).
    `Computer' has the meaning given that term in 18 U.S.C. 1030(e)(1).
    `Distribution' means any act, including production, transportation, 
and possession with intent to distribute, related to the transfer of 
material involving the sexual exploitation of a minor. Accordingly, 
distribution includes posting material involving the sexual 
exploitation of a minor on a website for public viewing, but does not 
include the mere solicitation of such material by a defendant.
    `Interactive computer service' has the meaning given that term in 
section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. 
230(f)(2)).
    `Minor' means (A) an individual who had not attained the age of 18 
years; (B) an individual, whether fictitious or not, who a law 
enforcement officer represented to a participant (i) had not attained 
the age of 18 years, and (ii) could be provided for the purposes of 
engaging in sexually explicit conduct; and (C) an undercover law 
enforcement officer who represented to a participant that the officer 
had not attained the age of 18 years.
    `Participant' has the meaning given that term in Application Note 1 
of the Commentary to Sec.  3B1.1 (Aggravating Role).
    `Permanent or life-threatening bodily injury,' `serious bodily 
injury,' and `abducted' are defined in the Commentary to Sec.  1B1.1 
(Application Instructions). However, for purposes of this guideline, 
`serious bodily injury' means conduct other than criminal sexual abuse, 
which already is taken into account in the base offense level under 
subsection (a).
    `Prohibited sexual conduct' (A) means any sexual activity for which 
a person can be charged with a criminal offense; (B) includes the 
production of child pornography; and (C) does not include trafficking 
in, or possession of, child pornography. `Child pornography' has the 
meaning given that term in 18 U.S.C. 2256(8).
    `Conduct described in 18 U.S.C. 2241(a) or (b)' is: using force 
against the victim; threatening or placing the victim in fear that any 
person will be subject to death, serious bodily injury, or kidnapping; 
rendering the victim unconscious; or administering by force or threat 
of force, or without the knowledge or permission of the victim, a drug, 
intoxicant, or other similar substance and thereby substantially 
impairing the ability of the victim to appraise or control conduct. 
This provision would apply, for example, if any dangerous weapon was 
used or brandished.
    `Victim' includes an undercover law enforcement officer.''.
    The Commentary to Sec.  2A3.1 captioned ``Application Notes'' is 
amended by striking Notes 2 and 3 in their entirety and inserting the 
following:
    ``2. Custody, Care, or Supervisory Control Enhancement.--Subsection 
(b)(5) is intended to have broad application and includes offenses 
involving a victim less than 18 years of age entrusted to the 
defendant, whether temporarily or permanently. For example, teachers, 
day care providers, baby-sitters, or other temporary caretakers are 
among those who would be subject to this enhancement. In determining 
whether to apply this enhancement, the court should look to the actual 
relationship that existed between the defendant and the victim and not 
simply to the legal status of the defendant-victim relationship.
    3. Inapplicability of Enhancement.--If the enhancement in 
subsection (b)(5) applies, do not apply Sec.  3B1.3 (Abuse of

[[Page 75352]]

Position of Trust or Use of Special Skill).''.
    The Commentary to Sec.  2A3.1 captioned ``Application Notes'' is 
amended in Note 4 by inserting before ``The enhancement'' the 
following:
    ``Application of Subsection (b)(6).--
    (A) Misrepresentation of Participant's Identity.--'';

and by striking the last paragraph in its entirety and inserting the 
following new paragraph:
    ``(B) Use of a Computer or Interactive Computer Service.--
Subsection (b)(6)(B) provides an enhancement if a computer or an 
interactive computer service was used to (A) persuade, induce, entice, 
or coerce a minor to engage in prohibited sexual conduct; or (B) 
facilitate transportation or travel, by a minor or a participant, to 
engage in prohibited sexual conduct. Subsection (b)(6)(B) is intended 
to apply only to the use of a computer or an interactive computer 
service to communicate directly with a minor or with a person who 
exercises custody, care, or supervisory control of the minor. 
Accordingly, the enhancement would not apply to the use of a computer 
or an interactive computer service to obtain airline tickets for the 
minor from an airline's Internet site.''.
    The Commentary to Sec.  2A3.1 captioned ``Application Notes'' is 
amended in Note 5 by inserting ``Upward Departure Provision.--'' before 
``If a victim''.
    [Option 2: The Commentary to Sec.  2A3.1 captioned ``Application 
Notes'' is amended by adding at the end the following:
    ``6. Application of Subsection (b)(7).--Subsection (b)(7) is 
intended to apply in cases in which the offense involved the production 
of child pornography. For purposes of this subsection, `child 
pornography' has the meaning given that term in 18 U.S.C. 2256.''.]
    Section 2A3.2 is amended by striking subsection (a) in its entirety 
and inserting the following:
    ``(a) Base Offense Level: 18''.
    Section 2A3.2(b) is amended by striking subsections (2) through (4) 
in their entirety and inserting the following:
    ``(2) If (A) subsection (b)(1) does not apply; and (B)(i) the 
offense involved the knowing misrepresentation of a participant's 
identity to persuade, induce, entice, or coerce the victim to engage in 
prohibited sexual conduct or a participant otherwise unduly influenced 
the victim to engage in prohibited sexual conduct; or (ii) a 
participant otherwise unduly influenced the victim to engage in 
prohibited sexual conduct, increase by 2 levels.
    (3) If a computer or an interactive computer service was used to 
persuade, induce, entice, or coerce the victim to engage in prohibited 
sexual conduct, increase by 2 levels.''.
    The Commentary to Sec.  2A3.2 captioned ``Application Notes'' is 
amended in Note 1 by inserting after ``Definitions.--For purposes of 
this guideline:'' the following:
    `` `Computer' has the meaning given that term in 18 U.S.C. 
1030(e)(1).
    `Interactive computer service' has the meaning given that term in 
section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. 
230(f)(2)).'';
    by striking `` `Sexual act' '' and all that follows through ``16 
years.'' and inserting the following:
    `` `Victim' means (A) an individual who had not attained the age of 
16 years; (B) an individual, whether fictitious or not, who a law 
enforcement officer represented to a participant (i) had not attained 
the age of 16 years, and (ii) could be provided for the purposes of 
engaging in sexually explicit conduct; and (C) an undercover law 
enforcement officer who represented to a participant that the officer 
had not attained the age of 16 years.''.
    The Commentary to Sec.  2A3.2 captioned ``Application Notes'' is 
amended in Note 2 by striking ``and'' after ``Care,'' in the heading 
and inserting ``or''; by inserting ``(A) In General.--'' before 
``Subsection (b)(1)''; and by adding at the end the following new 
paragraph:
    ``(B) Inapplicability of Enhancement.--If the enhancement in 
subsection (b)(1) applies, do not apply subsection (b)(2) or Sec.  
3B1.3 (Abuse of Position of Trust or Use of Special Skill).''.
    The Commentary to Sec.  2A3.2 captioned ``Application Notes'' is 
amended by striking Note 3 in its entirety; and by redesignating Notes 
4 through 7 as Notes 3 through 6, respectively.
    The Commentary to Sec.  2A3.2 captioned ``Application Notes'' is 
amended in Note 3, as redesignated by this amendment, by striking 
``(b)(2)(A)'' each place its appears and inserting ``(b)(2)(B); by 
striking ``(A) persuade'' and inserting ``persuade''; by striking ``; 
or (B) facilitate transportation or travel, by the victim or a 
participant, to engage in prohibited sexual conduct'' each place it 
appears; by striking ``(b)(2)(B)'' and inserting ``(b)(2)(B)(ii)''; and 
by striking ``If the victim'' and all that follows through ``(c)(1) 
will apply.''.
    The Commentary to Sec.  2A3.2 captioned ``Application Notes'' is 
amended by striking Note 4, as redesignated by this amendment, in its 
entirety and inserting the following:
    ``4. Use of Computer or an Interactive Computer Service.--
Subsection (b)(3) provides an enhancement if a computer or an 
interactive computer service was used to persuade, induce, entice, or 
coerce the victim to engage in prohibited sexual conduct. Subsection 
(b)(3) is intended to apply only to the use of a computer or an 
interactive computer service to communicate directly with the victim or 
with a person who exercises custody, care, or supervisory control of 
the victim. Accordingly, the enhancement would not apply to the use of 
a computer or an interactive computer service to obtain airline tickets 
for the victim from an airline's Internet site.''.
    The Commentary to Sec.  2A3.2 captioned ``Background'' is amended 
by striking ``or chapter 117 of title 18, United States Code''.
    Section 2A3.3(a) is amended by striking ``9'' and inserting 
``[10][12]''.
    Section 2A3.3(b) is amended by striking ``(A)'' each place it 
appears; and by striking ``; or (B) facilitate transportation or 
travel, by a minor or a participant, to engage in prohibited sexual 
conduct'' each place it appears; and in subdivision (2) by striking 
``Internet-access device'' and inserting ``interactive computer 
service''.
    The Commentary to Sec.  2A3.3 captioned ``Application Notes'' is 
amended in Note 1 by striking ``For purposes of this guideline--'' and 
inserting the following: ``Definitions.--For purposes of this 
guideline:
    `Computer' has the meaning given that term in 18 U.S.C. 1030(e)(1).
    `Interactive computer service' has the meaning given that term in 
section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. 
230(f)(2)).''.
    The Commentary to Sec.  2A3.3 captioned ``Application Notes'' is 
amended by striking Notes 2 and 3 in their entirety and inserting the 
following:
    ``2. Misrepresentation of a Participant's Identity.--The 
enhancement in subsection (b)(1) applies in cases involving the 
misrepresentation of a participant's identity to persuade, induce, 
entice, or coerce a minor to engage in prohibited sexual conduct. 
Subsection (b)(1) is intended to apply only to misrepresentations made 
directly to a minor or to a person who exercises custody, care, or 
supervisory control of the minor.
    The misrepresentation to which the enhancement in subsection (b)(1) 
may apply includes misrepresentation of a participant's name, age, 
occupation, gender, or status, as long as the misrepresentation was 
made with the

[[Page 75353]]

intent to persuade, induce, entice, or coerce a minor to engage in 
prohibited sexual conduct. Accordingly, use of a computer screen name, 
without such intent, would not be a sufficient basis for application of 
the enhancement.
    3. Use of a Computer or an Interactive Computer Service.--
Subsection (b)(2) provides an enhancement if a computer or an 
interactive computer service was used to persuade, induce, entice, or 
coerce a minor to engage in prohibited sexual conduct. Subsection 
(b)(2) is intended to apply only to the use of a computer or an 
interactive computer service to communicate directly with a minor or 
with a person who exercises custody, care, or supervisory control of 
the minor.''.
    Section 2A3.4(a) is amended by striking subdivisions (1) and (2) in 
their entirety and inserting the following:
    ``(1) 16, if the offense involved conduct described in 18 U.S.C. 
2241(a) or (b);
    (2) 12, if the offense involved conduct described in 18 U.S.C. 
2242;''.
    Section 2A3.4(b) is amended by striking subdivisions (4) through 
(6) in their entirety and inserting the following:
    ``(4) If the offense involved the knowing misrepresentation of a 
participant's identity to persuade, induce, entice, or coerce a minor 
to engage in prohibited sexual conduct, increase by 2 levels.
    (5) If a computer or an interactive computer service was used to 
persuade, induce, entice, or coerce a minor to engage in prohibited 
sexual conduct, increase by 2 levels.''.
    The Commentary to Sec.  2A3.4 captioned ``Application Notes'' is 
amended in Note 1 by striking ``For purposes of this guideline''--and 
all the follows through ``18 years.'' and inserting the following:
    ``Definitions.--For purposes of this guideline:
    `Minor' means (A) an individual who had not attained the age of 18 
years; (B) an individual, whether fictitious or not, who a law 
enforcement officer represented to a participant (i) had not attained 
the age of 18 years, and (ii) could be provided for the purposes of 
engaging in sexually explicit conduct; and (C) an undercover law 
enforcement officer who represented to a participant that the officer 
had not attained the age of 18 years.''.
    The Commentary to Sec.  2A3.4 captioned ``Application Notes'' is 
amended in Note 2 by striking `` `The means set forth'' and inserting 
``Application of Subsection (a)(1).--`Conduct described''; by striking 
``are'' and inserting ``is''; and by striking ``by'' each place it 
appears.
    The Commentary to Sec.  2A3.4 captioned ``Application Notes'' is 
amended in Note 3 by striking `` `The means set forth'' and inserting 
``Application of Subsection (a)(2).--`Conduct described''; by striking 
``are'' and inserting ``is''; and by striking ``by'' each place it 
appears.
    The Commentary to Sec.  2A3.4 captioned ``Application Notes'' is 
amended in Note 4 by inserting before ``Subsection (b)(3)'' the 
following:
    ``Custody, Care, or Supervisory Control.--
    (A) In General.--'';
    and by adding at the end the following new paragraph:
    ``(B) Inapplicability of Enhancement.--If the adjustment in 
subsection (b)(3) applies, do not apply Sec.  3B1.3 (Abuse of Position 
of Trust or Use of Special Skill).''.
    The Commentary to Sec.  2A3.4 captioned ``Application Notes'' is 
amended by striking Note 5 in its entirety; and by redesignating Notes 
6 and 7 as Notes 5 and 6, respectively.
    The Commentary to Sec.  2A3.4 captioned ``Application Notes'' is 
amended in Note 5, as redesignated by this amendment, by inserting 
``Misrepresentation of a Participant's Identity.--'' before ``The 
enhancement in subsection (b)(4) applies''; by striking ``(A)'' each 
place it appears; and by striking ``; or (B) facilitate transportation 
or travel, by a minor or a participant, to engage in prohibited sexual 
conduct'' each place it appears.
    The Commentary to Sec.  2A3.4 captioned ``Application Notes'' is 
amended in Note 6, as redesignated by this amendment, by striking the 
text and inserting the following:
    ``Use of a Computer or an Interactive Computer Service.--Subsection 
(b)(5) provides an enhancement if a computer or an interactive computer 
service was used to persuade, induce, entice, or coerce a minor to 
engage in prohibited sexual conduct. Subsection (b)(5) is intended to 
apply only to the use of a computer or an interactive computer service 
to communicate directly with a minor or with a person who exercises 
custody, care, or supervisory control of the minor.''.
    The Commentary to Sec.  2A3.4 captioned ``Background'' is amended 
by striking ``For cases involving'' and all that follows through 
``level 6.''.
    Issues for Comment:
    1. The PROTECT Act contains substantial increases in penalties for 
defendants sentenced under a number of the sexual abuse and pornography 
guidelines, including new mandatory minimum penalties. Do the increased 
penalties provided in the PROTECT Act necessitate amending the base 
offense levels and specific offense characteristics in these guidelines 
to target more accurately the specific conduct of the defendant, 
thereby reserving the most severe penalties for the most serious 
offenders? Guidelines 2G2.1, 2G2.2, and 2G2.4 contain numerous specific 
offense characteristics addressing a wide variety of conduct involved 
in the production of, trafficking in, or possession of, child 
pornography. Currently, the application of these specific offense 
characteristics is based on either (A) the actions of only the 
defendant (e.g., Sec.  2G2.4(b)(3) provides a two-level increase ``if 
the defendant's possession of the material resulted from the 
defendant's use of a computer''), or (B) all the conduct within the 
scope of relevant conduct (e.g., Sec.  2G2.1(b)(3) provides, in part, a 
two-level increase if the ``offense involved'' the use of a computer or 
Internet-access device). Specifically, the Commission requests comment 
on whether the specific offense characteristics in these guidelines 
should be based on all conduct within the scope of relevant conduct, or 
based on only the actions of the defendant; i.e., should the 
enhancement apply if the defendant used or directed the use of a 
computer, rather than if others within the defendant's jointly 
undertaken criminal activity used a computer?
    2. Sections 401(i)(1)(B) and (C) of the PROTECT Act added new 
subsections in Sec. Sec.  2G2.2 and 2G2.4 which provide a two- to five-
level enhancement based on the number of child pornography ``images'' 
involved in the offense. See Sec. Sec.  2G2.2(b)(6) and 2G2.4(b)(5). 
The PROTECT Act did not, however, define what constitutes an ``image'' 
for purposes of applying these new ``image tables.'' The Commission 
seeks comment regarding whether a definition of ``image,'' or 
instructions for counting images, for purposes of applying these 
subsections, is necessary. If the Commission provides instructions, how 
should the Commission decide how to count images? For example, is a 
photograph of two minors engaged in sexually explicit conduct to be 
considered one image, or two images? How should videos, films, or AVI 
files be considered? For example, if a video includes numerous scenes, 
each of which portrays the same minor engaging in sexually explicit 
conduct with a different adult, is each scene with a different adult to 
be considered a separate image?
    3. The Commission seeks comment regarding whether it should address 
a circuit conflict involving the application

[[Page 75354]]

of the specific offense characteristics in Sec. Sec.  2G2.2 and 2G2.4 
(effective April 30, 2003) for material portraying sadistic or 
masochistic conduct or other depictions of violence. Currently, the 
circuit courts are split on this issue, with three circuits finding 
that application of the enhancement requires proof that the defendant 
intended to possess or traffic material portraying sadistic or 
masochistic conduct, or other depictions of violence (see United States 
v. Kimbrough, 69 F.3d 723 (5th Cir. 1995); United States v. Burnette, 
234 F.3d 1270 (6th Cir. 2000)(unpub.); United States v. Tucker, 136 
F.3d 763 (11th Cir. 1998)), while the Seventh Circuit requires a strict 
liability standard (see United States v. Richardson, 238 F.3d 837 (7th 
Cir. 2001)). The Commission requests comment on whether it should 
resolve this circuit conflict. If so, how should the Commission handle 
this issue?
    Further, the Commission seeks comment regarding whether it should 
provide a definition of sadistic or masochistic conduct or other 
depictions of violence for purposes of application of the specific 
offense characteristic. Circuit courts have struggled with whether 
material portraying sexual penetration of prepubescent minors is per se 
sadistic or violent; whether the enhancement requires that depictions 
contain material portraying bondage or restraints; whether sadistic or 
masochistic conduct requires purposefully degrading or humiliating 
conduct that causes mental, psychological, or emotional injury; or 
whether the conduct depicted must be painful, coercive, degrading, and 
abusive. See United States v. Delmarle, 99 F.3d 80 (2d Cir. 1996); 
United States v. Kimbrough, 69 F.3d 723 (5th Cir. 1995); United States 
v. Turchen, 187 F.3d 735 (7th Cir. 1999); United States v. Parker, 267 
F.3d 839 (8th Cir. 2001); United States v. Hall, 312 F.3d 1250 (11th 
Cir. 2002). If the Commission provides a definition of these terms, 
what should that definition be?
    Finally, some argue that material that depicts bestiality or 
excretory functions is just as harmful as material that depicts 
sadistic or masochistic conduct or other depictions of violence and 
should be treated accordingly. The Commission seeks comment regarding 
whether the enhancement for material portraying sadistic or masochistic 
conduct or other depictions of violence in Sec. Sec.  2G2.2, 2G2.4, and 
2G3.1 (as well as the proposed enhancement in Sec.  2G2.1) should be 
expanded to include material portraying bestiality or excretory 
functions.
    4. The Commission seeks comment regarding which guideline is the 
most appropriate for violations of 18 U.S.C. 2425, relating to use of 
interstate facilities to transport information about a minor. Section 
2425 prohibits the use of interstate facilities to transmit the name, 
address, telephone number, social security number, or e-mail address of 
a minor, with the intent to encourage, entice, offer, or solicit any 
person to engage in prohibited sexual conduct with that minor. 
Violations of this section carry a statutory maximum term of 
imprisonment of five years and are currently covered by Sec.  2G1.1 
(proposed Sec.  2G1.3). Other offenses covered by Sec.  2G1.1 carry a 
five year mandatory minimum term of imprisonment and substantially 
higher statutory maximums. Some practitioners claim that section 2425 
offenses might be more like harassment or threatening communications 
offenses covered by Sec.  2A6.1 (Threatening or Harassing 
Communications). Is Sec.  2G1.1 (proposed Sec.  2G1.3) or Sec.  2A6.1 
the more appropriate guideline for section 2425 offenses? If Sec.  
2G1.1 (proposed Sec.  2G1.3) is not the most appropriate guideline, 
what guideline should be used to sentence violators of section 2425? Is 
there conduct specific to section 2425 offenses that necessitates the 
addition of any specific offense characteristic (e.g., age, intent to 
encourage, entice, offer, or solicit any person to engage in prohibited 
sexual conduct with a minor)?
    5. The Commission seeks comment regarding whether the offense 
levels in Chapter Two, Part A, Subpart 3 (Criminal Sexual Abuse), 
specifically, Sec. Sec.  2A3.1, 2A3.2, and 2A3.3, 2A3.4, should be 
increased to maintain proportionality with increases proposed for the 
Chapter Two, Part G guidelines, in response to statutory penalty 
changes provided by the PROTECT Act. If so increased, what should be 
the appropriate offense levels? Are there additional specific offense 
characteristics, cross references, or departure considerations that 
should be added to these guidelines? Additionally, how should the 
Commission address the interaction between the pattern of activity 
enhancement at Sec.  4B1.5 (Repeat and Dangerous Sex Offender Against 
Minor) and offenses sentenced under Sec.  2A3.2. The PROTECT Act 
changed the definition of pattern of activity so that, instead of 
requiring the abuse of two minors on two separate occasions, a pattern 
of activity now requires two separate occasions of prohibited sexual 
conduct with only one minor. Therefore, under the new definition, 
repeat acts against one minor will lead to a five-level increase under 
Sec.  4B1.5. Preliminary data suggest this enhancement will apply to 
the majority of defendants sentenced at Sec.  2A3.2. Thus, should the 
Commission consider this enhancement when deciding whether to increase 
the base offense level at Sec.  2A3.2?
    6. The Commission requests comment regarding whether the guidelines 
in Chapter Two, Part A, Subpart 3 (Criminal Sexual Abuse) and Chapter 
Two, Part G (Offenses Involving Commercial Sexual Acts, Sexual 
Exploitation of Minors, and Obscenity) should provide an enhancement if 
the offense involved incest. Some commentators have argued that 
offenses involving incest result in a violation of trust, making these 
offenses more egregious than offenses in which a defendant has care, 
custody, or control of the victim but is not a family member. If the 
Commission added this enhancement to the Chapter Two, Part A, Subpart 3 
offenses, should the enhancement apply as an alternative or as an 
additional enhancement to the current two-level enhancement that 
applies ``if the victim was in the custody, care, or supervisory 
control of the defendant''? Furthermore, if the Commission added this 
enhancement, what relationships should be covered under the definition 
of incest?

Proposed Amendment 2: Effective Compliance Programs in Chapter Eight

    Synopsis of Proposed Amendment: The proposed amendment is intended 
to provide greater guidance to organizations and courts regarding the 
criteria for an effective program to prevent and detect violations of 
the law (``compliance programs''). The proposed amendment adds to 
Chapter Eight, Part B, a new guideline, Sec.  8B2.1 (Effective Program 
to Prevent and Detect Violations of Law), that identifies the purposes 
of an effective compliance program, sets forth seven minimum steps for 
such a program, and provides guidance for their implementation. This 
proposed amendment was developed by the Ad Hoc Advisory Group on the 
Organizational Sentencing Guidelines empaneled by the Commission for 
the purpose of reviewing the general effectiveness of the guidelines 
for organizations, with particular emphasis on examining the criteria 
for an effective compliance program. The Advisory Group's review and 
analysis can be found in its report of October 7, 2003, to the 
Commission at www.ussc.gov.
    Under subsection (g) of Sec.  8C2.5 (Culpability Score), the 
existence of an effective compliance program is a

[[Page 75355]]

mitigating factor that reduces an organization's culpability score and 
ultimately its fine range. Also, the implementation of a compliance 
program may be a condition of probation for organizations under Sec.  
8D1.4(c) (Recommended Conditions of Probation--Organizations).
    The proposed amendment incorporates the seven minimum steps for a 
compliance program, currently located in the commentary to Sec.  8A1.2 
(Application Instructions--Organizations) at Application Note 3(k), 
into a new guideline at Sec.  8B2.1 in order to emphasize the 
importance of compliance programs and provide more prominent guidance 
on the attributes of such programs. The proposed amendment defines the 
obligations and purposes of such programs, adds more detail to the 
seven minimum requirements, and provides definitions throughout the 
associated commentary.
    The proposed amendment expands the scope of the objective of a 
compliance program by defining the term ``violation of law'' more 
broadly than in the current guidelines, which refer only to violations 
of criminal law and prevention of criminal conduct. The proposed 
amendment expands the objective of a compliance program more broadly to 
include prevention and detection of ``violations of any law, whether 
criminal or noncriminal (including a regulation), for which the 
organization is, or would be, liable.'' This language also replaces the 
prior reference to ``employees and agents'', relying instead on the 
legal standard of vicarious liability.
    The proposed amendment retains the requirement that an organization 
exercise due diligence to prevent and detect violations of law, and 
adds at subsection (a) the requirement that an organization shall also 
``otherwise promote an organizational culture that encourages a 
commitment to compliance with the law.'' This proposed addition is 
intended to reflect the emphasis on ethics and values incorporated into 
recent legislative and regulatory reforms, as well as the proposition 
that compliance with all laws is the expected behavior within 
organizations.
    The proposed amendment retains the existing seven minimum steps of 
an effective compliance program but provides greater guidance regarding 
some of the requirements by adding definitions and clarifying terms at 
subsection (b). First, for the requirement of the ``establishment of 
compliance standards and procedures that are reasonably capable of 
reducing the prospect of criminal conduct'', Application Note 1 defines 
``compliance standards and procedures'' as ``standards of conduct and 
internal control systems that are reasonably capable of reducing the 
likelihood of violations of law.''
    Second, for the requirement that ``specific individuals within 
high-level personnel of the organization must have been assigned 
overall responsibility to oversee compliance'', subsection (b)(2) 
defines the specific roles and reporting relationships of particular 
categories of high-level personnel with respect to compliance programs. 
In particular, the proposed amendment provides that the 
``organizational leadership shall be knowledgeable about the content 
and operation of the program to prevent and detect violations of law.'' 
The accompanying commentary at Application Note 1 defines 
``organizational leadership'' as ``(A) high-level personnel of the 
organization; (B) high-level personnel of a unit of the organization; 
and (C) substantial authority personnel'' and retains existing 
definitions for the terms ``high-level personnel of the organization'' 
and ``substantial authority personnel''.
    The proposed amendment also provides at subsection (b)(2) that the 
``organization's governing authority shall be knowledgeable about the 
content and operation of the program to prevent and detect violations 
of the law and shall exercise reasonable oversight with respect to the 
implementation and effectiveness of the program to prevent and detect 
violations of law.'' Application Note 1 defines ``governing authority'' 
as ``(A) Board of Directors, or (B) if the organization does not have a 
Board of Directors, the highest-level governing body of the 
organization.'' Subsection (b)(2) retains the existing requirement that 
``specific individual(s) within high-level personnel of the 
organization shall be assigned direct, overall responsibility for the 
program,'' and specifies that their responsibility is to ``ensure the 
implementation and effectiveness of the program.'' The proposed 
amendment also requires that the individual responsible for compliance 
be given adequate resources and authority to carry out such 
responsibility, and provides that such individual shall report directly 
to the governing authority.
    Third, the proposed amendment at subsection (b)(3) replaces the 
current requirement that substantial authority personnel be screened 
for their ``propensity to engage in violations of law'' with a 
requirement that the organization ``use reasonable efforts and due 
diligence not to include within the substantial authority personnel any 
individual whom the organization knew, or should have known, has a 
history of engaging in violations of law or other conduct inconsistent 
with an effective program''. For purposes of this subsection only, the 
proposed amendment defines the term ``violations of law'' as ``any 
official determination of a violation or violations of any law, whether 
criminal or noncriminal (including a regulation).'' This is meant to 
ensure that an individual is screened on the basis of his or her 
culpability and not on the basis of an organization's vicarious 
liability. The corresponding commentary enumerates factors to be 
considered in this determination, among them, the recency of the 
individual's violations of law and other misconduct, the relatedness of 
the individual's violations of law and other misconduct to his or her 
responsibilities, and whether the individual has engaged in a pattern 
of such violations of law and other misconduct.
    Fourth, the proposed amendment at subsection (b)(4) makes 
compliance training a requirement, and specifically extends the 
training requirement to the upper levels of an organization as well as 
to the organization's employees and agents, as appropriate.
    Fifth, the proposed amendment at subsection (b)(5) expands the 
existing criterion for using auditing and monitoring systems by 
expressly providing that such systems are to be designed to detect 
violations of law. The proposed amendment adds the specific requirement 
that there be periodic evaluation of the effectiveness of its 
compliance program. The proposed amendment replaces the existing 
reference to ``reporting systems without fear of retribution'' with the 
more specific requirement for the implementation of ``mechanisms to 
allow for anonymous reporting.'' The proposed amendment expands the 
stated focus of internal reporting from ``the criminal conduct * * * of 
others'' to using internal systems for both ``seeking guidance and 
reporting potential or actual violations of law.''
    Sixth, the proposed amendment at subsection (b)(6) broadens the 
existing criterion that the compliance standards be enforced through 
disciplinary measures by adding that such standards also be encouraged 
through ``appropriate incentives to perform in accordance with a 
[compliance] program.'' Finally, at subsection (b)(7) the amendment 
retains the existing requirement that an organization take reasonable 
steps to respond to and prevent further similar violations of law.
    In addition to the seven criteria for a compliance program, the 
proposed

[[Page 75356]]

amendment expressly provides at subsection (c) that ongoing risk 
assessment is an essential component of the design, implementation, and 
modification of an effective program. The proposed amendment includes 
at Application Note 5(A) certain requirements in conjunction with the 
performance of risk assessments, namely, that organizations assess the 
nature and seriousness of potential violations of law, the likelihood 
that certain violations of law may occur because of the nature of the 
organization's business, and the prior history of the organization. 
Corresponding commentary specifies that organizations must prioritize 
the actions taken to implement an effective compliance program and 
modify such actions in light of the risks identified in the risk 
assessment.
    The proposed amendment also provides additional guidance with 
respect to the implementation of compliance programs by small 
organizations by making more frequent references to small organizations 
throughout the commentary and providing illustrations (e.g., Sec.  
8B2.1, Application Note 2(B)(ii)).
    This proposed amendment also makes two changes to the factors that 
affect the culpability score of an organization under Sec.  8C2.5 
(Culpability Score). First, rather than precluding an organization from 
obtaining the compliance program credit if certain categories of high-
level personnel are involved in the offense of conviction, the proposed 
subsection (f) establishes that ``an offense by an individual within 
high-level personnel of the organization results in a rebuttable 
presumption'' that effective prevention and detections program did not 
exist.
    Under the existing guidelines, an organization cannot receive the 
three-point reduction in its culpability score under Sec.  8C2.5(f) if 
any one of three categories of individuals participated in, condoned, 
or was willfully ignorant of the offense: (1) An individual within 
high-level personnel of the organization; (2) a person within high-
level personnel of a unit having more than 200 employees and within 
which the offense was committed; or (3) an individual responsible for 
the administration or enforcement of a compliance program. The existing 
guidelines also provide for a rebuttable presumption that an 
organization did not have an effective compliance program if an 
individual within substantial authority personnel participated in an 
offense. The proposed amendment provides for a rebuttable presumption 
that the organization did not have an effective compliance program 
where high-level personnel of the organization participated in, 
condoned, or were wilfully ignorant of the offense. This modification 
is intended to assist smaller organizations that currently may be 
automatically precluded, because of their size, from arguing for a 
culpability score reduction for their compliance efforts under Sec.  
8C2.5(f).
    Second, the proposed amendment addresses concerns about the 
relationship between obtaining credit under subsection (g) of Sec.  
8C2.5 and waiving the attorney-client privilege and the work product 
protection doctrine. Pursuant to Sec.  8C2.5(g)(1) and (2), an 
organization's culpability score will be reduced if it ``fully 
cooperated in the investigation'' of its wrongdoing, among other 
factors. The Commission's Ad Hoc Advisory Group on the Organizational 
Sentencing Guidelines studied the relationship between waivers and 
Sec.  8C2.5(g) by obtaining testimony and conducting its own research, 
including a survey of United States Attorney's Offices (all of which 
are described at Part V of the Advisory Group Report of October 17, 
2003, located at www.ussc.gov). The commentary in the proposed 
amendment addresses some of these concerns by providing that waiver of 
the attorney-client privilege and of work product protections ``is not 
a prerequisite to a reduction in culpability score under subsection 
(g)'' but in some circumstances ``may be required in order to satisfy 
the requirements of cooperation.''
    Proposed Amendment:
    Chapter Eight is amended in the Introductory Commentary by striking 
``criminal conduct'' each place it appears and inserting ``violations 
of law''.
    Section 8A1.2(a) is amended by inserting ``, Subpart 1'' after 
``Part B''.
    Section 8A1.2(b)(2)(D) is amended by adding at the end the 
following: ``To determine whether the organization had an effective 
program to prevent and detect violations of law for purposes of Sec.  
8C2.5(f), apply Sec.  8B2.1 (Effective Program to Prevent and Detect 
Violations of Law).''.
    The Commentary to Sec.  8A1.2 captioned ``Application Notes'' is 
amended in Note 3(c) in the second sentence by inserting ``of the 
organization'' after ``high-level personnel''.
    The Commentary to Sec.  8A1.2 captioned ``Application Notes'' is 
amended by striking Note 3(k) in its entirety.
    Chapter Eight, Part B is amended by striking the heading and 
inserting the following:
``PART B--REMEDYING HARM FROM CRIMINAL CONDUCT, AND PREVENTING AND 
DETECTING VIOLATIONS OF LAW
    1. REMEDYING HARM FROM CRIMINAL CONDUCT'';
    and by adding at the end the following new subpart:
    ``2. PREVENTING AND DETECTING VIOLATIONS OF LAW
Sec.  8B2.1. Effective Program to Prevent and Detect Violations of Law
    (a) To have an effective program to prevent and detect violations 
of law, for purposes of subsection (f) of Sec.  8C2.5 (Culpability 
Score) and subsection (c)(1) of Sec.  8D1.4 (Recommended Conditions of 
Probation--Organizations), an organization shall--
    (1) exercise due diligence to prevent and detect violations of law; 
and
    (2) otherwise promote an organizational culture that encourages a 
commitment to compliance with the law.
    Such program shall be reasonably designed, implemented, and 
enforced so that the program is generally effective in preventing and 
detecting violations of law. The failure to prevent or detect the 
instant offense does not necessarily mean that the program is not 
generally effective in preventing and detecting violations of law.
    (b) Due diligence and the promotion of an organizational culture 
that encourages a commitment to compliance with the law within the 
meaning of subsection (a) minimally require the following steps:
    (1) The organization shall establish compliance standards and 
procedures to prevent and detect violations of law.
    (2) The organizational leadership shall be knowledgeable about the 
content and operation of the program to prevent and detect violations 
of law.
    The organization's governing authority shall be knowledgeable about 
the content and operation of the program to prevent and detect 
violations of law and shall exercise reasonable oversight with respect 
to the implementation and effectiveness of the program to prevent and 
detect violations of law.
    Specific individual(s) within high-level personnel of the 
organization shall be assigned direct, overall responsibility to ensure 
the implementation and effectiveness of the program to prevent and 
detect violations of law. Such individual(s) shall be given adequate 
resources and authority to carry out such responsibility and shall 
report directly to the governing authority or an appropriate subgroup 
of the governing

[[Page 75357]]

authority regarding the implementation and effectiveness of the program 
to prevent and detect violations of law.
    (3) The organization shall use reasonable efforts not to include 
within the substantial authority personnel of the organization any 
individual whom the organization knew, or should have known through the 
exercise of due diligence, has a history of engaging in violations of 
law or other conduct inconsistent with an effective program to prevent 
and detect violations of law.
    (4)(A) The organization shall take reasonable steps to communicate 
in a practical manner its compliance standards and procedures, and 
other aspects of the program to prevent and detect violations of law, 
to the individuals referred to in subdivision (B) by conducting 
effective training programs and otherwise disseminating information 
appropriate to such individual's respective roles and responsibilities.
    (B) The individuals referred to in subdivision (A) are the members 
of the governing authority, the organizational leadership, the 
organization's employees, and, as appropriate, the organization's 
agents.
    (5) The organization shall take reasonable steps--
    (A) to ensure that the organization's program to prevent and detect 
violations of law is followed, including using monitoring and auditing 
systems that are designed to detect violations of law;
    (B) to evaluate periodically the effectiveness of the 
organization's program to prevent and detect violations of law; and
    (C) to have a system whereby the organization's employees and 
agents may report or seek guidance regarding potential or actual 
violations of law without fear of retaliation, including mechanisms 
that allow for anonymous reporting.
    (6) The organization's program to prevent and detect violations of 
law shall be promoted and enforced consistently through appropriate 
incentives to perform in accordance with such program and disciplinary 
measures for engaging in violations of law and for failing to take 
reasonable steps to prevent or detect violations of law.
    (7) After a violation of law has been detected, the organization 
shall take reasonable steps to respond appropriately to the violation 
of law and to prevent further similar violations of law, including 
making any necessary modifications to the organization's program to 
prevent and detect violations of law.
    (c) In implementing subsection (b), the organization shall conduct 
ongoing risk assessment and take appropriate steps to design, 
implement, or modify each step set forth in subsection (b) to reduce 
the risk of violations of law identified by the risk assessment.

Commentary

    Application Notes:
    1. Definitions.--For purposes of this guideline:
    `Compliance standards and procedures' means standards of conduct 
and internal control systems that are reasonably capable of reducing 
the likelihood of violations of law.
    `Governing authority' means the (A) the Board of Directors, or (B) 
if the organization does not have a Board of Directors, the highest-
level governing body of the organization.
    `Organizational leadership' means (A) high-level personnel of the 
organization; (B) high-level personnel of a unit of the organization; 
and (C) substantial authority personnel. The terms `high-level 
personnel of the organization' and `substantial authority personnel' 
have the meaning given those terms in the Commentary to Sec.  8A1.2 
(Application Instructions--Organizations). The term `high-level 
personnel of a unit of the organization' has the meaning given that 
term in the Commentary to Sec.  8C2.5 (Culpability Score).
    `Violations of law' means violations of any law, whether criminal 
or noncriminal (including a regulation), for which the organization is, 
or would be, liable, or in the case of Application Note 4(A), for which 
the individual would be liable.
    2. Factors to Consider in Meeting Requirements of Subsections (a) 
and (b).--
    (A) In General.--Each of the requirements set forth in subsections 
(a) and (b) shall be met by an organization; however, in determining 
what specific actions are necessary to meet those requirements, factors 
that shall be considered include (i) the size of the organization, (ii) 
applicable government regulations, and (iii) any compliance practices 
and procedures that are generally accepted as standard or model 
practices for businesses similar to the organization.
    (B) The Size of the Organization.--
    (i) In General.--The formality and scope of actions that an 
organization shall take to meet the requirements of subsections (a) and 
(b), including the necessary features of the organization's compliance 
standards and procedures, depend on the size of the organization. A 
larger organization generally shall devote more formal operations and 
greater resources in meeting such requirements than shall a smaller 
organization.
    (ii) Small Organizations.--In meeting the requirements set forth in 
subsections (a) and (b), small organizations shall demonstrate the same 
degree of commitment to compliance with the law as larger 
organizations, although generally with less formality and fewer 
resources than would be expected of larger organizations. While each of 
the requirements set forth in subsections (a) and (b) shall be 
substantially satisfied by all organizations, small organizations may 
be able to establish an effective program to prevent and detect 
violations of law through relatively informal means. For example, in a 
small business, the manager or proprietor, as opposed to independent 
compliance personnel, might perform routine audits with a simple 
checklist, train employees through informal staff meetings, and perform 
compliance monitoring through daily ``walk-arounds'' or continuous 
observation while managing the business. In appropriate circumstances, 
such reliance on existing resources and simple systems can demonstrate 
a degree of commitment that, for a much larger organization, would only 
be demonstrated through more formally planned and implemented systems.
    (C) Applicable Government Regulations.--The failure of an 
organization to incorporate within its program to prevent and detect 
violations of law any standard required by an applicable government 
regulation weighs against a finding that the program was an ``effective 
program to prevent and detect violations of law'' within the meaning of 
this guideline.
    3. Application of Subsection (b)(2).--
    (A) Governing Authority.--The responsibility of the governing 
authority under subsection (b)(2) is to exercise reasonable oversight 
of the organization's efforts to ensure compliance with the law. In 
large organizations, the governing authority likely will discharge this 
responsibility through oversight, whereas in some organizations, 
particularly small ones, it may be more appropriate for the governing 
authority to discharge this responsibility by directly managing the 
organization's compliance efforts.
    (B) High-Level Personnel.--The organization has discretion to 
delineate the activities and roles of the specific individual(s) within 
high-level personnel of the organization who are assigned overall and 
direct responsibility to ensure the effectiveness and operation of the 
program to detect and prevent violations of law; however, the 
individual(s) must

[[Page 75358]]

be able to carry out their overall and direct responsibility consistent 
with subsection (b)(2), including the ability to report to the 
governing authority, or to an appropriate subgroup of the governing 
authority, the effectiveness and operation of the program to detect and 
prevent violations of law.
    In addition to receiving reports from the foregoing individual(s), 
individual(s) with day-to-day operational responsibility for the 
program should periodically provide to the governing authority or an 
appropriate subgroup thereof information on the implementation and 
effectiveness of the program to detect and prevent violations of law.
    (C) Organizational Leadership.--Although the overall and direct 
responsibility to ensure the effectiveness and operation of the program 
to detect and prevent violations of law is assigned to specific 
individuals within high-level personnel of the organization, it is 
incumbent upon all individuals within the organizational leadership to 
be knowledgeable about the content and operation of the program to 
detect and prevent violations of law pursuant to subsection (b)(2); to 
perform their assigned duties consistent with the exercise of due 
diligence; and to promote an organizational culture that encourages a 
commitment to compliance with the law, under subsection (a).
    4. Application of Subsection (b)(3).--
    (A) Violations of Law.--Notwithstanding Application Note 1, 
``violations of law,'' for purposes of subsection (b)(3), means any 
official determination of a violation or violations of any law, whether 
criminal or noncriminal (including a regulation).
    (B) Consistency with Other Law.--Nothing in subsection (b)(3) is 
intended to require conduct inconsistent with any Federal, State, or 
local law, including any law governing employment or hiring practices.
    (C) Implementation.--In implementing subsection (b)(3), the 
organization shall hire and promote individuals consistent with 
Application Note 3, subdivision (C) so as to ensure that all 
individuals within the organizational leadership will perform their 
assigned duties with the exercise of due diligence, and the promotion 
of an organizational culture that encourages a commitment to compliance 
with the law, under subsection (a). With respect to the hiring or 
promotion of any specific individual within the substantial authority 
personnel of the organization, an organization shall consider factors 
such as: (i) the recency of the individual's violations of law and 
other misconduct (i.e., other conduct inconsistent with an effective 
program to prevent and detect violations of law); (ii) the relatedness 
of the individual's violations of law and other misconduct to the 
specific responsibilities the individual is anticipated to be assigned 
as part of the substantial authority personnel of the organization; and 
(iii) whether the individual has engaged in a pattern of such 
violations of law and other misconduct.
    5. Risk Assessments under Subsection (c).--Risk assessment(s) 
required under subsection (c) shall include the following:
    (A) Assessing periodically the risk that violations of law will 
occur, including an assessment of the following:
    (i) The nature and seriousness of such violations of law.
    (ii) The likelihood that certain violations of law may occur 
because of the nature of the organization's business. If, because of 
the nature of an organization's business, there is a substantial risk 
that certain types of violations of law may occur, the organization 
shall take reasonable steps to prevent and detect those types of 
violations of law. For example, an organization that, due to the nature 
of its business, handles toxic substances shall establish compliance 
standards and procedures designed to ensure that those substances are 
always handled properly. An organization that, due to the nature of its 
business, employs sales personnel who have flexibility to set prices 
shall establish compliance standards and procedures designed to prevent 
and detect price-fixing. An organization that, due to the nature of its 
business, employs sales personnel who have flexibility to represent the 
material characteristics of a product shall establish compliance 
standards and procedures designed to prevent fraud.
    (iii) The prior history of the organization. The prior history of 
an organization may indicate types of violations of law that it shall 
take actions to prevent and detect. Recurrence of similar violations of 
law creates doubt regarding whether the organization took reasonable 
steps to prevent and detect those violations of law.
    (B) Periodically, prioritizing as most likely to occur and most 
serious, the actions taken under each step set forth in subsection (b), 
in order to focus on preventing and detecting the violations of law 
identified under subdivision (A).
    (C) Modifying, as appropriate, the actions taken under any step set 
forth in subsection (b) to reduce the risk of violations of law 
identified in the risk assessment.
    Background: This section sets forth the requirements for an 
effective program to prevent and detect violations of law. This section 
responds to section 805(a)(2)(5) of the Sarbanes-Oxley Act of 2002, 
Public Law 107-204, which directed the Commission to review and amend, 
as appropriate, the guidelines and related policy statements to ensure 
that the guidelines that apply to organizations in this Chapter `are 
sufficient to deter and punish organizational criminal misconduct.'
    The requirements set forth in this guideline are intended to 
achieve reasonable prevention and detection of violations of law, both 
criminal and noncriminal, for which the organization would be 
vicariously liable. The prior diligence of an organization in seeking 
to detect and prevent violations of law has a direct bearing on the 
appropriate penalties and probation terms for the organization if it is 
convicted and sentenced for a criminal offense.''.
    The Commentary to Sec.  8C2.4 captioned ``Application Notes'' is 
amended in Note 2 by striking ``(Larceny, Embezzlement, and Other Forms 
of Theft)'' and inserting (Theft, Property Destruction, and Fraud)''.
    The Commentary to Sec.  8C2.4 captioned ``Background'' is amended 
in the fourth sentence by striking ``criminal conduct'' each place it 
appears and inserting ``violations of law''.
    Section 8C2.5 is amended by striking subsection (f) in its entirety 
and inserting the following:
``(f) Effective Program to Prevent and Detect Violations of Law
    (1) If the offense occurred even though the organization had in 
place, at the time of the offense, an effective program to prevent and 
detect violations of law, as provided in Sec.  8B2.1 (Effective Program 
to Prevent and Detect Violations of Law), subtract 3 points.
    (2) This section does not apply if, after becoming aware of an 
offense, the organization unreasonably delayed reporting the offense to 
appropriate governmental authorities.
    (3) Participation in, condoning of, or willful ignorance of, an 
offense by an individual within high-level personnel of the 
organization results in a rebuttable presumption that the organization 
did not have an effective program to prevent and detect violations of 
law.''.
    The Commentary to Sec.  8C2.5 captioned ``Application Notes'' is 
amended by striking Note 1 in its entirety and inserting the following:

[[Page 75359]]

    ``1. Definitions.--For purposes of this guideline, `condoned,' 
`prior criminal adjudication,' `similar misconduct,' `substantial 
authority personnel,' and `willfully ignorant of the offense' have the 
meaning given those terms in the Commentary to Sec.  8A1.2 (Application 
Instructions--Organizations).''.
    The Commentary to Sec.  8C2.5 captioned ``Application Notes'' is 
amended in Note 3 in the last sentence by striking ``entire 
organization'' and inserting ``organization in its entirety''.
    The Commentary to Sec.  8C2.5 captioned ``Application Notes'' is 
amended in Note 10 by striking ``The second proviso in subsection (f)'' 
and inserting ``Subsection (f)(2)''; and by striking ``this proviso'' 
and inserting ``subsection (f)(2)''.
    The Commentary to Sec.  8C2.5 captioned ``Application Notes'' is 
amended in Note 12 by adding at the end the following:
    ``If the defendant has satisfied the requirements for cooperation 
set forth in this note, waiver of the attorney-client privilege and of 
work product protections is not a prerequisite to a reduction in 
culpability score under subsection (g). However, in some circumstances, 
waiver of the attorney-client privilege and of work product protections 
may be required in order to satisfy the requirements of cooperation.''.
    Section 8C2.8(a) is amended in subdivision (9) by striking ``and''; 
in subdivision (10) by striking the period and inserting ``; and''; and 
by adding at the end the following:
    `` (11) whether the organization failed to have, at the time of the 
instant offense, an effective program to prevent and detect violations 
of law within the meaning of Sec.  8B2.1 (Effective Program to Prevent 
and Detect Violations of Law).''.
    The Commentary to Sec.  8C2.8 captioned ``Application Notes'' is 
amended in Note 4 in the first sentence by inserting ``within high-
level personnel of'' after ``organization or''.
    The Commentary to Sec.  8C4.1 captioned ``Application Note'' is 
amended by striking ``Note'' and inserting ``Notes''; in Note 1 by 
inserting ``Intent of Provision.--'' before ``Departure'' [; and by 
adding at the end the following:
    ``2. Waiver of Certain Privileges and Protections.--If the 
defendant has satisfied the requirements for substantial assistance set 
forth in subsection (b)(2), waiver of the attorney-client privilege and 
of work product protections is not a prerequisite to a motion for a 
downward departure by the government under this section. However, the 
government may determine that waiver of the attorney-client privilege 
and of work product protections is necessary to ensure substantial 
assistance sufficient to warrant a motion for departure.''].
    Section 8C4.10 is amended by adding at the end the following 
paragraph:
    ``Similarly, if, at the time of the instant offense, the 
organization was required by law to have an effective program to 
prevent and detect violations of law, but the organization did not have 
such a program, an upward departure may be warranted.''.
    Section 8D1.1(a) is amended by striking subdivision (3) in its 
entirety and inserting the following:
    ``(3) if, at the time of sentencing, (A) the organization (i) has 
50 or more employees, or (ii) was otherwise required by law to have an 
effective program to prevent and detect violations of law; and (B) the 
organization does not have such a program;''.
    Section 8D1.4(b)(4) is amended by striking ``(1)'' and inserting 
``(A)''; by striking ``(2)'' and inserting ``(B)''; and by striking 
``(3)'' and inserting ``(C)''.
    Section 8D1.4(c) is amended by striking subdivision (1) in its 
entirety and inserting the following:
    ``(1) The organization shall develop and submit to the court an 
effective program to prevent and detect violations of law, consistent 
with Sec.  8B2.1 (Effective Program to Prevent and Detect Violations of 
Law). The organization shall include in its submission a schedule for 
implementation of the program.'';
    and in subdivisions (2), (3), and (4) by striking ``to prevent and 
detect violations of law'' each place it appears and inserting 
``referred to in subdivision (1)''.
    The Commentary to Sec.  8D1.4 captioned ``Application Notes'' by 
striking ``Notes'' and inserting ``Note''; and in the third sentence by 
striking ``, provided'' and inserting ``as long as''; by inserting 
``Sec.  8B2.1 (Effective Program to Prevent and Detect Violations of 
Law), and'' after ``with''; and by striking ``or regulatory 
requirement'' and inserting ``and regulatory requirements''.
    Chapter Eight, Part D, Subpart One is amended by striking Sec.  
8D1.5 and accompanying commentary.
    Chapter Eight is amended by adding at the end the following:
``PART F--VIOLATIONS OF PROBATION--ORGANIZATIONS
Sec.  8F1.1. Violations of Conditions of Probation--Organizations 
(Policy Statement)
    Upon a finding of a violation of a condition of probation, the 
court may extend the term of probation, impose more restrictive 
conditions of probation, or revoke probation and resentence the 
organization.

Commentary

    Application Notes:
    1. Appointment of Master or Trustee.--In the event of repeated, 
serious violations of conditions of probation, the appointment of a 
master or trustee may be appropriate to ensure compliance with court 
orders.
    2. Conditions of Probation.--Mandatory and recommended conditions 
of probation are specified in Sec. Sec.  8D1.3 (Conditions of 
Probation--Organizations) and 8D1.4 (Recommended Conditions of 
Probation--Organizations).''.
    Issues for Comment:
    1. Subsection (f) of Sec.  8C2.5 (Culpability Score) currently 
prohibits receipt of the three-point reduction in the culpability score 
for an effective program to prevent and detect violations of law if the 
organization unreasonably delayed reporting an offense to appropriate 
governmental authorities after becoming aware of the offense. The 
proposed amendment retains that prohibition. The Commission requests 
comment regarding whether the prohibition should be eliminated so that 
an organization could be considered for the reduction under Sec.  
8C2.5(f) regardless of whether the organization unreasonably delayed 
reporting the offense after its detection. Elimination of this 
prohibition may be appropriate in light of the fact that Sec.  8C2.5(g) 
provides for a five-point decrease for cooperation with authorities, 
including reporting the offense to authorities within a reasonable 
time.
    2. Subsection (f) of Sec.  8C2.5 also currently precludes receipt 
of the three-point reduction for an effective program to prevent and 
detect violations of law if certain high-level individuals within the 
organization participated in, condoned, or were willfully ignorant of 
the offense. The proposed amendment changes this automatic preclusion 
to a rebuttable presumption that the organization did not have an 
effective program to prevent and detect violations of law under such 
circumstances. The Commission requests comment regarding whether the 
automatic preclusion should continue to apply in the context of large 
organizations. Moreover, should the rebuttable presumption apply in the 
context of small organizations, in which high-level individuals within 
the organization almost necessarily will have been involved in the 
offense?
    3. The reduction in the culpability score under Sec.  8C2.5(f) for 
an effective

[[Page 75360]]

program to prevent and detect violations of law currently is a three-
point reduction. Should the extent of that reduction be increased to 
four points given the heightened requirements for an effective program 
to prevent and detect violations of law under the proposed amendment?
    4. Generally, are there factors or considerations that could be 
incorporated into Chapter Eight (Sentencing of Organizations), 
particularly Sec.  8C1.2, to encourage small and mid-size organizations 
to develop and maintain compliance programs?

Proposed Amendment 3: Body Armor

    Synopsis of Proposed Amendment: This proposed amendment implements 
the new offense at 18 U.S.C. 931, which was created by section 11009 of 
the 21st Century Department of Justice Appropriations Authorization 
Act, Public Law 107-273. Section 931 of title 18, United States Code, 
prohibits individuals with a prior state or federal felony conviction 
for a crime of violence from purchasing, owning, or possessing body 
armor. The statutory maximum term of imprisonment for 18 U.S.C. 931 is 
three years.
    The proposed amendment provides a new guideline at Sec.  2K2.6 
(Possessing, Purchasing, or Owning Body Armor by Violent Felons) 
because there is no other guideline that covers conduct sufficiently 
analogous to a violation of 18 U.S.C. 931. Although Sec.  2K2.1 
(Unlawful Receipt, Possession, or Transportation of Firearms or 
Ammunition; Prohibited Transactions Involving Firearms or Ammunition) 
covers felons in possession of a firearm, the alternative base offense 
levels and specific offense characteristics of that guideline address 
offenses involving the more serious conduct of weapon possession or 
trafficking. The proposed new guideline provides a base offense level 
of [8][10][12].
    The proposed amendment also (A) provides a specific offense 
characteristic for cases in which the body armor was possessed in 
connection with [a ``crime of violence'' or ``drug trafficking 
crime''][another offense]; and (B) adds an application note to Sec.  
3B1.5 (Use of Body Armor in Drug Trafficking Crimes and Crimes of 
Violence) that addresses the interaction between the two guidelines.
    Proposed Amendment: Chapter Two, Part K, Subpart 2, is amended by 
adding at the end the following new guideline and accompanying 
commentary:
``Sec.  2K2.6 Possessing, Purchasing, or Owning Body Armor by Violent 
Felons
(a) Base Offense Level: [8][10][2].
(b) Specific Offense Characteristic
    (1) If the defendant used the body armor in connection with [a 
crime of violence or drug trafficking crime] [another offense], 
increase by [4] levels.

Commentary

    Statutory Provision: 18 U.S.C. 931.
    Application Notes:
    1. Definitions.--For purposes of this guideline:
    [`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).
    2. Application of Subsection (b)(1).--Consistent with Sec.  1B1.3 
(Relevant Conduct), the term ``defendant'', for purposes of subdivision 
(b)(1), 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.''.
    The Commentary to Sec.  3B1.5 captioned ``Application Notes'' is 
amended by adding at the end the following new note:
    ``3. If the defendant is convicted of 18 U.S.C. 931, do not apply 
this enhancement with respect to that offense of conviction. However, 
if, in addition to the count of conviction under 18 U.S.C. 931, the 
defendant is convicted of a crime of violence or a drug trafficking 
crime and the body armor was used in connection with that offense, this 
enhancement may be applied with respect to that crime of violence or 
drug trafficking crime.''.

Proposed Amendment 4: Public Corruption

    Synopsis of Proposed Amendment: This proposed amendment addresses 
offenses involving public corruption. The proposed amendment 
consolidates Sec. Sec.  2C1.1 (Offering, Giving, Soliciting, or 
Receiving a Bribe; Extortion Under Color of Official Right) and 2C1.7 
(Fraud Involving Deprivation of the Intangible Right to the Honest 
Services of Public Officials; Conspiracy to Defraud by Interference 
with Governmental Functions). Also, the proposed amendment consolidates 
Sec. Sec.  2C1.2 (Offering, Giving, Soliciting, or Receiving a 
Gratuity) and 2C1.6 (Loan or Gratuity to Bank Examiner, or Gratuity for 
Adjustment of Farm Indebtedness, or Procuring Bank Loan, or Discount of 
Commercial Paper). This proposed amendment aims at moving away from a 
guideline structure that relies heavily on monetary harm to determine 
the severity of the offense. While the proposed amendment generally 
provides increased punishment for all bribery and gratuity offenses, it 
also provides enhancements in both consolidated guidelines to address 
some of the aggravating factors that are involved in public corruption 
cases.

Base Offense Level Increases

    The proposed amendment increases the base offense level for all 
bribery and gratuity cases. Currently, bribery offenses sentenced under 
Sec.  2C1.1 or Sec.  2C1.7 begin with a base offense level of level 10. 
The proposed consolidated guideline at Sec.  2C1.1 would increase the 
base offense level for bribery cases to level [12]. With respect to 
gratuity offenses, Sec.  2C1.2 and Sec.  2C1.6 currently have a base 
offense level of level 7. The proposed consolidated guideline at Sec.  
2C1.2 increases the base offense level to level [9]. The proposed 
increases in the base offense levels for bribery and gratuity cases 
will ensure continued proportionality between these cases and those 
sentenced under Sec. Sec.  2B1.1 (Theft, Fraud, and Property 
Destruction) and 2J1.2 (Obstruction of Justice).

18 U.S.C. Sec. Sec.  1341-1343 Offenses

    Under a consolidated Sec.  2C1.1, 18 U.S.C. 1341-1343 offenses, 
which are currently sentenced under Sec.  2C1.7, would be referenced in 
Appendix A (Statutory Index) to Sec.  2C1.1 provided that the offense 
was a fraud involving the deprivation of the intangible right to honest 
services, as set forth in the proposed parenthetical in the Commentary 
captioned ``Statutory Provisions''. The proposed amendment also builds 
on Application Note 12 in Sec.  2B1.1 (Theft, Property Destruction, and 
Fraud) which deals with application of the cross references in Sec.  
2B1.1(c). The note currently explains that in cases in which broad 
fraud statutes are used primarily for jurisdictional purposes, the 
offense may be covered more appropriately by another guideline. The 
proposed amendment adds fraud involving the deprivation of the 
intangible right to honest services as an example of an offense more 
aptly covered by Sec.  2C1.1. The parenthetical and the expansion of 
Application Note 14 address concerns expressed by the Public Integrity 
Section of Department of Justice that 18 U.S.C. 1341-1343 offenses be 
sentenced under Sec.  2C1.1 and not under the fraud guideline.

[[Page 75361]]

``Loss'' and ``Public Official'' Enhancements

    Under the current structure of Sec.  2C1.1, an enhancement exists 
that provides for the application of the greater of either (A) the 
number of offense levels from the fraud/theft loss table corresponding 
to the value of the payment, the benefit received or to be received in 
return for the payment, and the loss to the government from the 
offense, whichever is greatest; and (B) 8 levels if the offense 
involved a payment to influence an elected official or an official 
holding a high-level decision-making or sensitive position. Similar 
enhancements exist in Sec. Sec.  2C1.2 and 2C1.7. The proposed 
amendment makes two major changes to this enhancement in both proposed 
consolidated guidelines. First, it makes the enhancement cumulative so 
that the court would apply the appropriate number of levels from the 
loss table and also the revised public official enhancements, if 
applicable. Second, the proposed amendment proposes two new 
enhancements that focus on public officials. The first new enhancement 
modifies the current ``high-level or sensitive position'' enhancement. 
This enhancement provides [two] [four] levels, and in Sec. Sec.  2C1.1 
and 2C1.2, a minimum offense level of 18 and 15, respectively, if the 
offense involved an unlawful payment for the purpose of influencing an 
official act of a public official in a high position of public trust. 
Although the concept is the same as the current enhancement, the 
proposed amendment draws on case law interpreting the current 
enhancement and on the notion of ``public trust'' from Sec.  3B1.3 
(Abuse of Position of Trust or Use of Special Skill) to give more 
guidance with respect to the type of case to which the enhancement 
applies. The proposed minimum offense level of level 18 in Sec.  2C1.1 
and of level 15 in Sec.  2C1.2 ensures that an offense involving 
bribery of a higher level public official receives at least as high a 
sentence as it currently receives (i.e., that the new construct does 
not result in lower sentences). This enhancement will apply regardless 
of whether the defendant was the giver or the recipient of the bribe.
    The corresponding application note also explains that public 
officials in high positions of public trust are distinguished from 
other public officials by their direct authority to make decisions for, 
or on behalf of, a government department or government agency, and also 
by their substantial influence over the decision-making process. The 
note also includes jurors in the scope of the enhancement's application 
in order to be consistent with case law regarding the current 
enhancement and with the scope of 18 U.S.C. 201, the primary bribery 
and gratuity statute.
    The second new enhancement pertaining to public officials provides 
a [two] [four]-level increase if the defendant was a public official at 
the time of the offense. Commission data indicate that the defendant 
was a public official in approximately half of all public corruption 
cases. This enhancement recognizes that although all bribery involving 
public officials corrupts the public trust in government, it is the 
public official who violates that public trust. Currently, application 
notes in Sec. Sec.  2C1.1, 2C1.2, 2C1.6, and 2C1.7 instruct the court 
not to apply the abuse of position of trust enhancement in Sec.  3B1.3 
(Abuse of Position of Trust or Use of Special Skill), suggesting that 
in all cases sentenced under these guidelines, there is some element of 
abuse of public trust. The proposed enhancement would distinguish among 
cases in which there is an abuse of a position of public trust on the 
part of the public official.

Enhancement for Obtaining Entry into United States and for Obtaining 
Certain Documents

    The proposed amendment also provides a new [two] [four]-level 
enhancement if the offense involved an unlawful payment (A) to a United 
States Customs Border Protection Inspector to permit a person, a 
vehicle, or cargo to enter the United States; (B) to obtain a passport 
or a document relating to naturalization, citizenship, legal entry, or 
legal resident status; or (C) to obtain a government issued 
identification document. The definition of ``government issued 
identification document'' is derived from the definition of 
``identification document'' in 18 U.S.C. 1028(d)(3). This enhancement 
addresses cases in which a small payment may be given to obtain such a 
document, but the harm that results from an individual obtaining an 
identification or immigration document cannot be quantified by use of 
the loss table. It also addresses cases, as identified by the 
Commission, in which a third party steers an individual to the public 
official in order for that individual to obtain, through bribery or a 
gratuity, such a document. The enhancement also recognizes the 
increased risk of domestic terrorism from foreign nationals who 
illegally enter or remain in the United States through the use of 
illegally obtained identification documents. Similarly, the enhancement 
addresses concerns identified by the Department of Homeland Security 
regarding bribery of customs inspectors who have the discretion to 
permit individuals, vehicles, and cargo into the United States without 
inspection.

Miscellaneous Amendments

    The proposed amendment provides a definition of ``public official'' 
that builds on the current definition provided in Sec.  2C1.7. It 
modifies this definition by explicitly incorporating the notion that 
public officials hold positions of public trust. This definition is 
derived from relevant case law and statutory provisions, as well as 
Sec.  3B1.3 (Abuse of Position of Trust or Use of Special Skill). One 
difference to note regarding the definition of ``public official'' in 
Sec. Sec.  2C1.1 and 2C1.2 is that the definition in Sec.  2C1.2 
includes former public officials in order to be consistent with the 
scope of the primary gratuity statute, 18 U.S.C. 201(c)(1).
    The proposed amendment also (A) clarifies that an unlawful payment 
may be anything of value, not necessarily a monetary payment; (B) adds 
to Sec.  2C1.1 an application note currently found in Sec.  2C1.2 
regarding consideration of whether the public official was the 
instigator of the offense as an appropriate factor to determine the 
placement of the sentence within the applicable sentencing guideline 
range; and (C) updates Appendix A (Statutory Index) by deleting 
references to Sec.  2C1.4, which was consolidated with Sec.  2C1.3 
(Conflict of Interest; Payment or Receipt of Unauthorized 
Compensation), effective November 1, 2001.
    Several issues for comment follow the proposed amendment.
    Proposed Amendment:
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 14 by adding at the end the following:
    ``For example, a state employee who improperly influenced the award 
of a contract and used the mails to commit the offense may be 
prosecuted under 18 U.S.C. 1341 for fraud involving the deprivation of 
the intangible right of honest services. Such a case would be more 
aptly sentenced pursuant to Sec.  2C1.1 (Offering, Giving, Soliciting, 
or Receiving a Bribe; Extortion Under Color of Official Right; Fraud 
involving the Deprivation of the Intangible Right to Honest Services of 
Public Officials).''.
    Section 2C1.1 is amended in the heading by adding at the end ``; 
Fraud Involving the Deprivation of the Intangible Right to Honest 
Services of Public Officials''.
    Section 2C1.1(a) is amended by striking ``10'' and inserting 
``[12]''.

[[Page 75362]]

    Section 2C1.1(b)(1) is amended by striking ``bribe or extortion'' 
and inserting ``incident''.
    Section 2C1.1(b) is amended by striking subdivision (2) in its 
entirety and inserting the following:
    ``(2) If the value of the unlawful payment, the benefit received or 
to be received in return for the payment, or the loss to the government 
from the offense, whichever is greatest (A) exceeded $2,000 but did not 
exceed $5,000, increase by 1 level; or (B) exceeded $5,000, increase by 
the number of levels from the table in Sec.  2B1.1 (Theft, Property 
Destruction, and Fraud) corresponding to that amount.''.
    Section 2C1.1(b) is amended by adding at the end the following:
    ``(3) If the offense involved an unlawful payment for the purpose 
of influencing an official act of a public official in a high position 
of public trust, increase by [2][4] levels. If the resulting offense 
level is less than level 18, increase to level 18.
    (4) If the defendant was a public official at the time of the 
offense, increase by [2][4] levels.
    (5) If the offense involved an unlawful payment (A) to a United 
States Customs Border Protection Inspector to permit a person, a 
vehicle, or cargo to enter the United States; (B) to obtain a passport 
or a document relating to naturalization, citizenship, legal entry, or 
legal resident status; or (C) to obtain a government issued 
identification document, increase by [2][4] levels.''.
    The Commentary to Sec.  2C1.1 captioned ``Statutory Provisions'' is 
amended by inserting after ``872,'' the following:
    ``1341 (if the scheme or artifice to defraud was to deprive another 
of the intangible right of honest services), 1342 (if the scheme or 
artifice to defraud was to deprive another of the intangible right of 
honest services), 1343 (if the scheme or artifice to defraud was to 
deprive another of the intangible right of honest services),''.
    The Commentary to Sec.  2C1.1 captioned ``Application Notes'' is 
amended by striking Note 1 in its entirety and inserting the following:
    ``1. Definitions.--For purposes of this guideline:
    [`Bribe' means anything of value given or accepted with the corrupt 
intent to influence, or to be influenced in, an official act. A bribe 
involves an agreed upon quid pro quo.]
    `Government issued identification document' means a document made 
or issued by or under the authority of the United States Government, a 
State, or a political subdivision of a State, which, when completed 
with information concerning a particular individual, is of a type 
intended or commonly accepted for the purpose of identification of 
individuals.
    `Official act' has the meaning given that term in 18 U.S.C. 
201(a)(3).
    `Public official,' means (A) an officer or employee in, or selected 
to be in, a position of public trust in a federal, state, or local 
government department or government agency; or (B) a juror. ``Public 
official'' also includes a government contractor if such contractor is 
in a position of public trust with respect to a government department 
or government agency.
    `Unlawful payment' means anything of value. An `unlawful payment' 
need not be monetary.''.
    The Commentary to Sec.  2C1.1 captioned ``Application Notes'' is 
amended in Note 2 by inserting ``Application of Subsection (b)(2).--'' 
before ```Loss'''.
    The Commentary to Sec.  2C1.1 captioned ``Application Notes'' is 
amended by striking ``5. Where the court finds'' and all that follows 
through ``(Departures).''.
    The Commentary to Sec.  2C1.1 captioned ``Application Notes'' is 
amended by redesignating Notes 3 and 4 as Notes 4 and 5, respectively; 
by inserting after Note 2 the following:
    ``3. Application of Subsection (b)(3).--Subsection (b)(3) applies 
in cases involving federal, state, or local public officials who hold 
high positions of public trust. Such officials are distinguished from 
other public officials by their direct authority to make decisions for, 
or on behalf of, a government department or government agency, and by 
their substantial influence over the decision-making process. Examples 
of public officials in high positions of public trust include (A) a 
legislator; (B) a judge or magistrate; (C) a prosecuting attorney; (D) 
an agency administrator; and (E) a [supervisory] law enforcement 
officer. Certain individuals may be considered, for purposes of 
subsection (b)(3), to be a public official who holds a high position of 
public trust because of the importance of the process over which the 
individual has substantial influence, as for example, a juror.
    The degree of public trust involved in a high position of public 
trust is greater than that required for application of Sec.  3B1.3 
(Abuse of Position of Trust or Use of Special Skill). Accordingly, the 
fact that a particular public official has managerial discretion does 
not, in and of itself, determine whether the public official holds a 
high position of public trust.'';
    and in Note 4, as redesignated by this amendment, by inserting 
``Inapplicability of Sec.  3B1.3.--'' before ``Do not apply''.
    The Commentary to Sec.  2C1.1 captioned ``Application Notes'' is 
amended in Note 5, as redesignated by this amendment, by inserting 
``Upward Departure Provisions.--'' before ``In some cases''; and by 
adding at the end the following new paragraph:
    ``In a case in which the court finds that the defendant's conduct 
was part of a systematic or pervasive corruption of a governmental 
function, process, or office that may cause loss of public confidence 
in government, an upward departure may be warranted. See Sec.  5K2.7 
(Disruption of Governmental Function).''.
    The Commentary to Sec.  2C1.1 captioned ``Application Notes'' is 
amended in Note 6 by inserting ``Related Payments.--'' before 
``Subsection (b)(1)''; by striking ``either bribery or extortion'' in 
the first sentence and inserting ``bribery, extortion under color of 
official right, or fraud involving the deprivation of the intangible 
right to honest services''; by striking ``of bribery or extortion'' in 
the second sentence; by striking ``single bribe or extortion'' in the 
second sentence and inserting ``single incident''; and by adding at the 
end the following new paragraph:
    ``In a case involving more than one incident of bribery, extortion, 
or fraud involving the deprivation of the intangible right to honest 
services, the applicable amounts under subsection (b)(2) (i.e., the 
greatest of the value of the unlawful payment, the benefit received or 
to be received, or the loss to the government) are determined 
separately for each incident and then added together.''.
    The Commentary to Sec.  2C1.1 captioned ``Application Notes'' is 
amended in Note 7 by inserting ``Application of Subsection (c).--'' 
before ``For the purposes''.
    The Commentary to Sec.  2C1.1 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``8. Determining Sentence Within Guideline Range.--In some cases, 
the public official is the instigator of the offense. In others, a 
private citizen may be the instigator. This factor may appropriately be 
considered in determining the placement of the sentence within the 
applicable guideline range.''.
    The Commentary to Sec.  2C1.1 captioned ``Background'' is amended 
by inserting before the paragraph that begins ``Offenses involving 
attempted'' the following new paragraph:
    ``Section 2C1.1 also applies to fraud involving the deprivation of 
the intangible right to honest services of

[[Page 75363]]

government officials under 18 U.S.C. 1341-1343. Such fraud offenses 
typically involve an improper use of government influence that harms 
the operation of government in a manner similar to bribery offenses.''.
    Section 2C1.2(a) is amended by striking ``7'' and inserting 
``[9]''.
    Section 2C1.2 is amended by striking subsections (b)(1) and (b)(2) 
in their entirety and inserting the following:
    ``(b) (1) If the offense involved more than one incident, increase 
by 2 levels.
    (2) If the value of the unlawful payment (A) exceeded $2,000 but 
did not exceed $5,000, increase by 1 level; or (B) exceeded $5,000, 
increase by the number of levels from the table in Sec.  2B1.1 (Theft, 
Property Destruction, and Fraud) corresponding to that amount.
    (3) If the offense involved an unlawful payment for the purpose of 
influencing an official act of a public official in a high position of 
public trust, increase by [2][4] levels. If the resulting offense level 
is less than level 15, increase to level 15.
    (4) If the defendant was a public official at the time of the 
offense, increase by [2][4] levels.
    (5) If the offense involved an unlawful payment (A) to a United 
States Customs Border Protection Inspector to permit a person, a 
vehicle, or cargo to enter the United States; (B) to obtain a passport 
or a document relating to naturalization, citizenship, legal entry, or 
legal resident status; or (C) to obtain a government issued 
identification document, increase by [2][4] levels.''.
    The Commentary to Sec.  2C1.2 captioned ``Statutory Provision'' is 
amended by striking ``Provision'' and inserting ``Provisions''; by 
inserting ``Sec.  '' after ``18 U.S.C. Sec.  ''; and by inserting ``, 
212-214, 217'' after ``201(c)(1)''.
    The Commentary to Sec.  2C1.2 captioned ``Application Notes'' is 
amended by striking Note 1 in its entirety and inserting the following:
    ``1. Definitions.--For purposes of this guideline:
    `Government issued identification document' means a document made 
or issued by or under the authority of the United States Government, a 
State, or a political subdivision of a State, which, when completed 
with information concerning a particular individual, is of a type 
intended or commonly accepted for the purpose of identification of 
individuals.
    [`Gratuity' means anything of value given, or accepted for or 
because of an official act performed or to be performed.]
    `Official act' has the meaning given that term in 18 U.S.C. 
201(a)(3).
    `Public official,' means (A) an officer or employee in, formerly 
in, or selected to be in, a position of public trust in a federal, 
state, or local government department or government agency; or (B) a 
juror. `Public official' also includes a government contractor if such 
contractor is in a position of public trust with respect to a 
government department or government agency.
    `Unlawful payment' means anything of value. An `unlawful payment' 
need not be monetary.''.
    The Commentary to Sec.  2C1.2 captioned ``Application Notes'' is 
amended by redesignating Notes 2, 3, and 4 as Notes 3, 4, and 5, 
respectively; and by inserting after Note 1 the following new Note 2:
    ``2. Application of Subsection (b)(3).--Subsection (b)(3) applies 
in cases involving federal, state, or local public officials who hold 
high positions of public trust. Such officials are distinguished from 
other public officials by their direct authority to make decisions for, 
or on behalf of, a government department or government agency, and by 
their substantial influence over the decision-making process. Examples 
of public officials in high positions of public trust include (A) a 
legislator; (B) a judge or magistrate; (C) a prosecuting attorney; (D) 
an agency administrator; and (E) a [supervisory] law enforcement 
officer. Certain individuals may be considered, for purposes of 
subsection (b)(3), to be a public official who holds a high position of 
public trust because of the importance of the process over which the 
individual has substantial influence, as for example, a juror.
    The degree of public trust involved in a high position of public 
trust is greater than that required for application of Sec.  3B1.3 
(Abuse of Position of Trust or Use of Special Skill). Accordingly, the 
fact that a particular public official has managerial discretion does 
not, in and of itself, determine whether the public official holds a 
high position of public trust.''.
    The Commentary to Sec.  2C1.2 captioned ``Application Notes'' is 
amended in Note 3, as redesignated by this amendment, by inserting 
``Inapplicability of Sec.  3B1.3.--'' before ``Do not''; in Note 4, as 
redesignated by this amendment, by inserting ``Determining Sentence 
Within Guideline Range.--'' before ``In some''; by striking ``may be 
the initiator'' and inserting ``may be the instigator''; and in Note 5, 
as redesignated by this amendment, by inserting ``Related Payments.--
Subsection (b)(1) provides an adjustment for offenses involving more 
than one incident.'' before ``Related payments that,''.
    The Commentary to Sec.  2C1.2 captioned ``Background'' is amended 
by striking the second and third sentences and inserting the following:
    ``It also applies in cases involving (1) the offer to, or 
acceptance by, a bank examiner of a loan or gratuity; (2) the offer or 
receipt of anything of value for procuring a loan or discount of 
commercial bank paper from a Federal Reserve Bank; and (3) the 
acceptance of a fee or other consideration by a federal employee for 
adjusting or cancelling a farm debt.''.
    Chapter Two, Part C, is amended by striking Sec. Sec.  2C1.6, 
2C1.7, and all accompanying commentary.
    Appendix A (Statutory Index) is amended in the line referenced to 
18 U.S.C. Sec.  209 by striking ``2C1.4'' and inserting ``2C1.3'';
    in the line referenced to 18 U.S.C. 212 by striking ``2C1.6'' and 
inserting ``2C1.2'';
    in the line referenced to 18 U.S.C. 213 by striking ``2C1.6'' and 
inserting ``2C1.2'';
    in the line referenced to 18 U.S.C. 214 by striking ``2C1.6'' and 
inserting ``2C1.2'';
    in the line referenced to 18 U.S.C. 217 by striking ``2C1.6'' and 
inserting ``2C1.2'';
    in the line referenced to 18 U.S.C. 371 by striking ``2C1.7,'';
    in the line referenced to 18 U.S.C. 1341 by striking ``2C1.7'' and 
inserting ``2C1.1'';
    in the line referenced to 18 U.S.C. 1342 by striking ``2C1.7'' and 
inserting ``2C1.1'';
    in the line referenced to 18 U.S.C. 1343 by striking ``2C1.7'' and 
inserting ``2C1.1'';
    in the line referenced to 18 U.S.C. 1909 by striking ``, 2C1.4''; 
and
    in the line referenced to 41 U.S.C. 423(e) by striking ``, 2C1.7''.
    Issues for Comment:
    1. The Commission requests public comment regarding the proposed 
consolidation of Sec. Sec.  2C1.1 and 2C1.7, and Sec. Sec.  2C1.2 and 
2C1.6. Should the Commission instead consolidate all four guidelines 
into one comprehensive guideline that would apply to bribery, gratuity, 
extortion under color of official right, and fraud involving the 
deprivation of the intangible right to honest services? For example, 
such a guideline could distinguish between bribery and gratuity 
offenses by alternative base offense levels in a structure that would 
be consistent with Sec.  2E5.1 (Offering, Accepting or Soliciting a 
Bribe or Gratuity Affecting the Operation of an Employee Welfare

[[Page 75364]]

or Pension Plan). Should a consolidated Sec.  2C1.1 or Sec.  2C1.2 
specifically include conspiracy and attempts? Alternatively, should the 
Commission maintain the current structure of Chapter Two, Part C 
(Offenses Involving Public Officials) and not consolidate any of the 
guidelines in that part?
    2. The Commission requests comment regarding whether it should 
eliminate any or all of the cross references in Sec.  2C1.1. For 
example, the Commission has received input that the cross reference in 
subsection (c)(2) is confusing and may result in circular application 
of multiple cross references. This cross reference instructs the court 
to apply Sec.  2X3.1 (Accessory After the Fact) or Sec.  2J1.2 
(Obstruction of Justice) if the offense was committed to conceal, or 
obstruct justice in respect to, another offense. If Sec.  2J1.2 is 
applied, for example, and the offense involved obstructing the 
investigation or prosecution of an offense, then the cross reference in 
Sec.  2J1.2(c)(1) instructs the court to apply Sec.  2X3.1. For these 
reasons, should the Commission eliminate the cross reference in Sec.  
2C1.1(c)(2)?
    3. The proposed amendment adds to Sec.  2C1.1 an application note 
indicating that whether the initiator of the offense is the public 
official or a private citizen is relevant in determining the placement 
of the sentence within the applicable guideline range. This note 
currently exists in Sec.  2C1.2. The Commission requests comment 
regarding whether solicitation of a bribe or gratuity is a more serious 
offense than receipt of a bribe or gratuity. If so, should the 
Commission provide an enhancement in Sec.  2C1.1 for the solicitation 
of a bribe and in Sec.  2C1.2 for the solicitation of a gratuity? If 
so, what would be an appropriate offense level increase for such an 
enhancement?
    4. The proposed amendment provides three new enhancements in both 
consolidated guidelines: (A) A two-level increase for offenses that 
involve an unlawful payment (i) to a United States Customs Border 
Protection Inspector to permit a person, a vehicle, or cargo to enter 
the United States; (ii) to obtain a government issued identification 
document; or (iii) to obtain a United States passport, or a document 
relating to naturalization, citizenship, legal entry, or legal resident 
status; (B) a [two][four]-level increase for offenses involving public 
officials in high positions of public trust; and (C) a [two][four]-
level increase if the defendant was a public official at the time of 
the offense. Are there other enhancements that the Commission should 
consider adding to the proposed consolidated guidelines, and if so, 
what are those enhancements? For example, should the Commission provide 
a specific offense characteristic for bribery, extortion, and honest 
services offenses that affect the integrity of the election process? 
With respect to the proposed enhancement for a public official in a 
high position of public trust, are there additional categories of 
public officials that the Commission should include within the scope of 
this enhancement? As an alternative to the proposed enhancement, should 
the Commission provide a two part enhancement that provides for 
different offense level increases based on the degree of public trust 
held by the public official involved in the offense? For example, 
should the Commission provide a two-level increase if the offense 
involved an unlawful payment for the purpose of influencing a public 
official holding a supervisory or managerial position, and a four-level 
enhancement if the offense involved an unlawful payment for the 
purposes of influencing a public official holding a high-level decision 
making or sensitive position? If so, what distinguishes one category 
from the other? Should any such enhancement, or any other proposed 
enhancement, provide for a minimum offense level and if so, what would 
be an appropriate minimum offense level?
    5. According to Commission data, the enhancement for multiple 
incidents applies in approximately 64% of all Sec.  2C1.1 cases and in 
approximately 69% of all Sec.  2C1.2 cases. The Commission requests 
comment regarding whether the two levels from this enhancement should 
be incorporated into the base offense levels in Sec. Sec.  2C1.1 and 
2C1.2 to increase the proposed base offense level in those two 
guidelines an additional two levels.
    6. The Commission requests comment regarding whether, in light of 
the proposed amendments to Chapter Two, Part C, it should amend other 
guidelines pertaining to bribery, gratuity, and extortion, and other 
similar offenses. For example, should the Commission increase the base 
offense levels for bribery and gratuity offenses in Sec.  2E5.1 in 
order to maintain consistent and proportionate sentencing with respect 
to Sec. Sec.  2C1.1 and 2C1.2? Should the Commission consider making 
any amendments to Sec.  2B4.1 (Bribery in Procurement of Bank Loan and 
Other Commercial Bribery), Sec.  2B3.2 (Extortion by Force or Threat of 
Injury or Serious Damage), or Sec.  2B3.3 (Blackmail and Similar Forms 
of Extortion)?

Proposed Amendment 5: Drugs

    Synopsis of Proposed Amendment: This proposed amendment makes a 
number of amendments to Sec. Sec.  2D1.1 (Unlawful Manufacturing, 
Importing, Exporting, or Trafficking (Including Possession with Intent 
to Commit These Offenses); Attempt or Conspiracy), and 2D1.11 
(Unlawfully Distributing, Importing, Exporting or Possessing a Listed 
Chemical; Attempt or Conspiracy), and Appendix A (Statutory Index).
    First, the proposed amendment addresses section 608 of the PROTECT 
Act, Public Law 108-21, by increasing the offense levels for gamma 
hydroxybutyric acid (``GHB''), a schedule I depressant, and gamma-
butyrolactone (``GBL''), a precursor for GHB. Currently, GHB is 
sentenced with all other schedule I or II depressants (i.e., 1 unit = 1 
gram of marihuana). The proposed amendment provides two options for 
increasing the penalties for GHB in the Drug Equivalency Tables of 
Application Note 10 of Sec.  2D1.1. The effect of Option One is that a 
five year term of imprisonment would be triggered by 3.785 liters 
(equivalent to one gallon) of GHB. The effect of Option Two is that a 
five year term of imprisonment would be triggered by 18.925 liters 
(equivalent to five gallons) of GHB. The proposed amendment provides 
two corresponding quantity options for increasing the penalties for GBL 
in Sec.  2D1.11.
    Second, the proposed amendment adds to Application Note 5 of Sec.  
2D1.1 a reference to controlled substance analogues. The note currently 
states that ``[a]ny reference to a particular controlled substance in 
these guideline includes all salts, isomers, and all salts of 
isomers.'' The proposed amendment modifies the rule specifically to 
include that any reference to a particular controlled substance also 
includes any analogue of that controlled substance, unless otherwise 
provided (e.g., the Drug Quantity Table currently references fentanyl 
analogue).
    Third, the proposed amendment corrects a technical error in the 
Drug Quantity Table of Sec.  2D1.1 with respect to schedule III 
substances. The maximum base offense level for schedule III substances 
is level 20 (see Sec.  2D1.1(c)(10)), but there is no corresponding 
language in the Drug Quantity Table to indicate that level 20 is the 
maximum base offense level for these substances. The amendment corrects 
this error.
    Fourth, the proposed amendment updates the statutory references in 
Sec.  2D1.11(b)(2) and accompanying

[[Page 75365]]

commentary to conform to statutory redesignations. Section 2D1.11(b)(2) 
currently provides a three-level reduction if the defendant was 
convicted of violating 21 U.S.C. 841(d)(2), (g)(1), or 960(d)(2), 
unless the defendant knew or believed that the listed chemical was to 
be used to manufacture a controlled substance unlawfully. Those 
statutory references should be 21 U.S.C. 841(c)(2), (f)(1), or 
960(d)(2) to conform to statutory redesignations. The proposed 
amendment also expands application of Sec.  2D1.11(b)(2) to include 21 
U.S.C. 960(d)(3) and (d)(4) among the statutes of conviction for which 
the three-level reduction at subsection (b)(2) is available. Currently, 
the reduction applies in cases in which the defendant (convicted under 
21 U.S.C. 841(c)(2), (f)(1), or 960(d)(2), as properly redesignated) 
did not have knowledge or actual belief that the listed chemical would 
be used to manufacture a controlled substance. Section 841(c)(2) of 
title 21, United States Code, requires a finding of either knowledge or 
a reasonable cause to believe that the listed chemical would be used to 
manufacture a controlled substance. Sections 960(d)(3) and (d)(4) of 
title 21, United States Code, similarly require a finding that a person 
who imports, exports, or serves as a broker for, a listed chemical 
knows or has a reasonable cause to believe, that the listed chemical 
will be used to manufacture a controlled substance. Appendix A 
(Statutory Index) currently references 21 U.S.C. 960(d)(3) and (d)(4) 
to Sec.  2D1.11, but neither statute is included for purposes of the 
reduction. Given that the reduction applies in 21 U.S.C. 841(c)(2) 
cases in which the defendant had a reasonable cause to believe, but not 
knowledge or actual belief, that the listed chemical would be used to 
manufacture a controlled substance, and the mens rea in 21 U.S.C. 
841(c)(2) is the same as in 21 U.S.C. 960(d)(3) and (d)(4), the 
proposed amendment adds 21 U.S.C. 960(d)(3) and (d)(4) to 2D1.11(b)(2).
    Fifth, the proposed amendment adds white phosphorus and 
hypophosphorous acid to the Chemical Quantity Table in Sec.  2D1.11(e). 
Both substances are List I chemicals used in the production of 
methamphetamine and, according to the DEA, are direct substitutes for 
red phosphorus. The Commission amended Sec.  2D1.11(e) last amendment 
cycle to include red phosphorus but because of Federal Register notice 
issues was unable at that time to include white phosphorus and 
hypophosphorous acid.
    Sixth, the proposed amendment also modifies Appendix A (Statutory 
Index) by deleting the reference to 21 U.S.C. 957, which is not a 
substantive criminal offense but rather a registration provision for 
which violations are prosecuted under 21 U.S.C. 960(a) or (b) (for 
controlled substances) or section 960(d)(6) (for listed chemicals).
    Finally, four issues for comment follow the proposed amendment 
regarding (1) offenses involving anhydrous ammonia; (2) an enhancement 
for distribution of controlled substances and other illegal substances 
over the Internet; (3) drug facilitated sexual assault; and (4) a 
circuit conflict pertaining to Application Note 12 of Sec.  2D1.1, 
which was most recently noted in United States v. Smack, --F.3d --, 
2003 WL 22419914 (3rd Cir., October 24, 2003).
    Proposed Amendment:
    Section 2D1.1(c) is amended in subdivision (10) by striking ``or 
Schedule III substances'' in the thirteenth entry; and by inserting 
after the thirteenth entry the following:
    ``40,000 or more units of Schedule III substances;'';
    in subdivision (11) by striking ``or Schedule III substances'' in 
the thirteenth entry; and by inserting after the thirteenth entry the 
following:
    ``At least 20,000 but less than 40,000 units of Schedule III 
substances;''
    in subdivision (12) by striking ``or Schedule III substances'' in 
the thirteenth entry; and by inserting after the thirteenth entry the 
following:
    ``At least 10,000 but less than 20,000 units of Schedule III 
substances;'';
    in subdivision (13) by striking ``or Schedule III substances'' in 
the thirteenth entry; and by inserting after the thirteenth entry the 
following:
    ``At least 5,000 but less than 10,000 units of Schedule III 
substances;'';
    in subdivision (14) by striking ``or Schedule III substances'' in 
the thirteenth entry; and by inserting after the thirteenth entry the 
following:
    ``At least 2,500 but less than 5,000 units of Schedule III 
substances;'';
    in subdivision (15) by striking ``or Schedule III substances'' in 
the fourth entry; and by inserting after the fourth entry the 
following:
    ``At least 1,000 but less than 2,500 units of Schedule III 
substances;'';
    in subdivision (16) by striking ``or Schedule III substances'' in 
the fourth entry; and by inserting after the fourth entry the 
following:
    ``At least 250 but less than 1,000 units of Schedule III 
substances;'';
    and in subdivision (17) by striking ``or Schedule III substances'' 
in the fourth entry; and by inserting after the fourth entry the 
following:
    ``Less than 250 units of Schedule III substances;''.
    Section 2D1.1 is amended in the subdivision captioned ``*Notes to 
the Drug Quantity Table'' in Note (F) in the first sentence by 
inserting ``(except gamma-hydroxybutyric acid)'' after ``Depressants''; 
and in the second sentence by inserting ``(except gamma-hydroxybutyric 
acid)'' after ``substance''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 5 by striking ``and'' after ``includes all salts, 
isomers,''; and by inserting ``, and, except as otherwise provided, any 
analogue of that controlled substance'' after ``all salts of isomers''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 10 in the Drug Equivalency Tables by striking the 
subdivision captioned ``Schedule I or II Depressants'' in its entirety 
and inserting the following new subdivisions:
``Schedule I or II Depressants (Except Gamma-Hydroxybutyric Acid)
1 unit of a Schedule I or II Depressant (except gamma-hydroxybutyric 
acid) = 1 gm of marihuana
Gamma-Hydroxybutyric Acid
[Option One: 1 liter of gamma-hydroxybutyric acid = 26,420 gm of 
marihuana]
[Option Two: 1 liter of gamma-hydroxybutyric acid = 5,284 gm of 
marihuana]''.

    Section 2D1.11(b)(2) is amended by striking ``21 U.S.C. Sec. Sec.  
841(d)(2), (g)(1), or 960(d)(2),'' and inserting ``21 U.S.C. Sec.  
841(c)(2), (f)(1), or Sec.  960(d)(2), (d)(3), or (d)(4),''.
    Section 2D1.11(e) is amended in subdivision (1) by striking 
``10,000 KG or more of Gamma-butyrolactone;'' and inserting 
``[757][3785] L or more of Gamma-butyrolactone;''; and by inserting ``, 
White Phosphorus, or Hypophosphorous Acid'' after ``Red Phosphorus'';
    in subdivision (2) by striking ``At least 3,000 KG but less than 
10,000 KG of Gamma-butyrolactone;'' and inserting ``At least 
[227.1][1135.5] L but less than [757][3785] L of Gamma-
butyrolactone;''; and by inserting ``, White Phosphorus, or 
Hypophosphorous Acid'' after ``Red Phosphorus'';
    in subdivision (3) by striking ``At least 1,000 KG but less than 
3,000 KG of Gamma-butyrolactone;'' and inserting ``At least 
[75.7][378.5] L but less than [227.1][1135.5] L of Gamma-
butyrolactone;''; and by inserting ``, White Phosphorus, or

[[Page 75366]]

Hypophosphorous Acid'' after ``Red Phosphorus'';
    in subdivision (4) by striking ``At least 700 KG but less than 
1,000 KG of Gamma-butyrolactone;'' and inserting ``At least [53][265] L 
but less than [75.7][378.5] L of Gamma-butyrolactone;''; and by 
inserting ``, White Phosphorus, or Hypophosphorous Acid'' after ``Red 
Phosphorus'';
    in subdivision (5) by striking ``At least 400 KG but less than 700 
KG of Gamma-butyrolactone;'' and inserting ``At least [30.3][151.4] L 
but less than [53][265] L of Gamma-butyrolactone;''; and by inserting 
``, White Phosphorus, or Hypophosphorous Acid'' after ``Red 
Phosphorus'';
    in subdivision (6) by striking ``At least 100 KG but less than 400 
KG of Gamma-butyrolactone;'' and inserting ``At least [7.6][37.9] L but 
less than [30.3][151.4] L of Gamma-butyrolactone;''; and by inserting 
``, White Phosphorus, or Hypophosphorous Acid'' after ``Red 
Phosphorus'';
    in subdivision (7) by striking ``At least 80 KG but less than 100 
KG of Gamma-butyrolactone;'' and inserting ``At least [6.1][30.3] L but 
less than [7.6][37.9] L of Gamma-butyrolactone;''; and by inserting ``, 
White Phosphorus, or Hypophosphorous Acid'' after ``Red Phosphorus'';
    in subdivision (8) by striking ``At least 60 KG but less than 80 KG 
of Gamma-butyrolactone;'' and inserting ``At least [4.5][22.7] L but 
less than [6.1][30.3] L of Gamma-butyrolactone;''; and by inserting ``, 
White Phosphorus, or Hypophosphorous Acid'' after ``Red Phosphorus'';
    in subdivision (9) by striking ``At least 40 KG but less than 60 KG 
of Gamma-butyrolactone;'' and inserting ``At least [3][15.1] L but less 
than [4.5][22.7] L of Gamma-butyrolactone;''; and by inserting ``, 
White Phosphorus, or Hypophosphorous Acid'' after ``Red Phosphorus''; 
and
    in subdivision (10) by striking ``Less than 40 KG of Gamma-
butyrolactone;'' and inserting ``Less than [3][15.1] L of Gamma-
butyrolactone;''; and by inserting ``, White Phosphorus, or 
Hypophosphorous Acid'' after ``Red Phosphorus''.
    The Commentary to Sec.  2D1.11 captioned ``Statutory Provisions'' 
is amended by inserting ``, (3), (4)'' after ``(d)(1), (2)''.
    The Commentary to Sec.  2D1.11 captioned ``Application Notes'' is 
amended in Note 5 by striking ``21 U.S.C. 841(d)(2), (g)(1), and 
960(d)(2)'' and inserting ``21 U.S.C. 841(c)(2), (f)(1), and 960(d)(2), 
(d)(3), and (d)(4)''; and by striking ``Where'' and inserting ``In a 
case in which''.
    Appendix A (Statutory Index) is amended by striking the following:
    ``21 U.S.C. 957 2D1.1''.
    Issues for Comment:
    1. A concern has been expressed to the Commission regarding 
offenses involving anhydrous ammonia. Anhydrous ammonia is a volatile 
chemical generally used in farming but that can also be used in the 
manufacture of methamphetamine. Section 864 of title 21, United States 
Code, prohibits stealing anhydrous ammonia or transporting stolen 
anhydrous ammonia across state lines. The statutory maximum term of 
imprisonment for an anhydrous ammonia offense is four years, except if 
the offense involved the intent to manufacture methamphetamine in which 
case the statutory maximum term of imprisonment is ten years. (A 
section 864 offense committed subsequent to a specified drug 
trafficking conviction carries a maximum term of imprisonment of eight 
years, unless the offense involved the intent to manufacture 
methamphetamine in which case the maximum term of imprisonment is 20 
years.) Appendix A (Statutory Index) references 21 U.S.C. 864 to Sec.  
2D1.12 (Unlawful Possession, Manufacture, Distribution, Transportation, 
Exportation, or Importation of Prohibited Flask, Equipment, Chemical, 
Product, or Material; Attempt or Conspiracy). The Commission requests 
comment regarding whether it should provide a specific offense 
characteristic in Sec.  2D1.12 specifically to cover anhydrous ammonia 
offenses. For example, the Commission could provide an enhancement that 
would apply if the offense involved anhydrous ammonia, or alternatively 
if the defendant was convicted under 21 U.S.C. 864. If such an 
enhancement should be provided, what would be an appropriate offense 
level increase? For example, should the Commission provide an offense 
level increase of eight or ten levels for convictions under 21 U.S.C. 
864?
    2. The Commission requests comment regarding whether it should 
amend the drug guidelines in Chapter Two, Part D, particularly, 
Sec. Sec.  2D1.1 (Unlawful Manufacturing, Importing, Exporting, or 
Trafficking (Including Possession with Intent to Commit These 
Offenses); Attempt or Conspiracy), 2D1.11 (Unlawful Distributing, 
Importing, Exporting or Possessing a Listed Chemical; Attempt or 
Conspiracy), and 2D1.12 to provide a specific offense characteristic 
for defendants who unlawfully distribute controlled substances, 
precursors, listed chemicals, and other illegal substances and items 
used in the manufacture of controlled substances or listed chemicals 
over the Internet. There is a concern with the unlawful distribution 
over the Internet because of the ability to reach a broader market than 
possible through ``traditional'' drug trafficking methods. If the 
Commission provides such a specific offense characteristic, what would 
be an appropriate offense level increase?
    3. The Commission requests comment regarding whether it should 
amend Sec.  2D1.1 to account more adequately for offenses that involve 
drug facilitated sexual assault, specifically in a case in which the 
victim of the sexual assault knowingly and voluntarily ingested the 
drug. Currently, the cross reference in Sec.  2D1.1(d)(2) applies if 
the defendant was convicted under 21 U.S.C. 841(b)(7) and the victim of 
the sexual assault did not knowingly ingest the drug. However, if the 
victim of the sexual assault knowingly and voluntarily ingested the 
drug, neither 21 U.S.C. 841(b)(7) nor the cross reference applies. The 
Commission requests comment regarding whether the scope of the cross 
reference should be expanded to include a case in which the victim of a 
sexual assault knowingly and voluntarily ingested the drug, even if the 
defendant is not convicted under 21 U.S.C. 841(b)(7). Alternatively, 
would the heightened base offense levels in Sec.  2D1.1(a)(1) and (2) 
apply in such a case and, if so, would they account adequately for drug 
facilitated sexual assaults of this nature? If not, should the 
heightened base offenses levels be modified or should the Commission 
provide a specific offense characteristic to account more adequately 
for drug facilitated sexual assaults?
    4. The Commission has become aware of a circuit split regarding the 
interpretation of the last sentence in Application Note 12 of Sec.  
2D1.1. The relevant language of the note states that ``[i]f, however, 
the defendant establishes that he or she did not intend to provide, or 
was not reasonably capable of providing, the agreed-upon quantity of 
the controlled substance, the court shall exclude from the offense 
level determination the amount of controlled substance that the 
defendant establishes that he or she did not intend to provide or was 
not reasonably capable of providing.'' A conflict has arisen over 
whether this language is limited to a defendant who is the seller in a 
sting operation. See United States v. Smack, --F.3d --, 2003 WL 
22419914 (3rd Cir., October 24, 2003) (opining that the language in 
Note 12 is ambiguous);

[[Page 75367]]

United States v. Williams, 109 F.3d 502, 511-12 (8th Cir. 1997) (same). 
Some circuits have concluded that the last sentence of the note is 
intended to apply only to sellers. See United States v. Gomez, 103 F.3d 
249, 252-53 (2d Cir. 1997) (concluding that the last sentence of Note 
12 applies only to sellers); United States v. Perez de Dios, 237 F.3d 
1192 (10th Cir. 2001) (same); United States v. Brassard, 212 F.3d 54, 
58 (1st Cir. 2000) (same). Others have concluded that the language also 
applies to buyers in reverse sting operations. See United States v. 
Minore, 40 Fed. Appx. 536, 537 (9th Cir. 2002) (mem.op.) (applying the 
final sentence of the new Note 12 to a buyer in reverse sting 
operation); United States v. Estrada, 256 F.3d 466, 476 (7th Cir. 2001) 
(same).
    In light of the conflicting interpretations, the Commission 
requests comment regarding whether it should clarify the interpretation 
of the last sentence of Sec.  2D1.1, Application Note 12. Specifically, 
should a buyer in a reverse sting operation be permitted to have 
excluded from the offense level determination the amount of controlled 
substance that the defendant establishes that he or she did not intend 
to purchase, or was not reasonably capable of purchasing? Should the 
last sentence in Application Note 12 be limited to sellers?

Proposed Amendment 6: Repeal of ``Mitigating Role Cap''

    Synopsis of Proposed Amendment: This amendment proposes to repeal 
the current ``mitigating role cap'' at Sec.  2D1.1(a)(3) and replace it 
with an alternative approach. The proposed replacement would provide a 
gradually increasing mitigating role reduction based on drug quantity 
base offense levels under Sec. Sec.  2D1.1 (Unlawful Manufacturing, 
Importing, Exporting, or Trafficking (Including Possession with Intent 
to Commit These Offenses); Attempt or Conspiracy) and 2D1.11 
(Unlawfully Distributing, Importing, Exporting, or Possession a Listed 
Chemical; Attempt or Conspiracy), beginning at level [30]. In general, 
the reduction both is more gradual and less generous than the current 
approach. Under the current ``mitigating role cap'' approach, a 
defendant who qualifies for a minor role adjustment and whose drug 
quantity would otherwise result in a base offense level of level 34 
will only receive a base offense level of level 30 under Sec.  
2D1.1(a)(3). This effectively is a four-level reduction. This defendant 
also receives the two-level adjustment under Sec.  3B1.2 for minor role 
in the offense, resulting in an offense level of 28 (assuming no other 
adjustments). Thus, the net reduction for this defendant under the 
current mitigating role cap approach is six levels. Under the proposed 
alternative, however, the net reduction would only be [three] [four-] 
levels (two-level reduction for minor role in the offense and 
additional [one-][two-] level reduction for having a base offense level 
of level 34 under Sec.  2D1.1). This alternative approach also 
maintains the current distinctions among mitigating role defendants 
under Sec.  3B1.2 (i.e., minor, minimal, or in-between), rather than 
capping the drug quantity base offense level at level 30 for all 
qualifying defendants. Effectively, this approach ``compresses'' the 
effect of increasing drug quantity above level 30, rather than capping 
it at that level.
    Proposed Amendment:
    Section 2D1.1(a)(3) is amended by striking ``, except that if the 
defendant receives an adjustment under Sec.  3B1.2 (Mitigating Role), 
the base offense level under this subsection shall be not more than 
level 30''.
    Section 3B1.2 is amended to read as follows:
``Sec.  3B1.2. Mitigating Role
    (a) Based on the defendant's role in the offense, decrease the 
offense level as follows:
    (1) If the defendant was a minimal participant in any criminal 
activity, decrease by 4 levels.
    (2) If the defendant was a minor participant in any criminal 
activity, decrease by 2 levels.
    In cases falling between subsections (a)(1) and (a)(2), decrease by 
3 levels.
    (b) If a downward adjustment under subsection (a) is applied and 
the defendant's Chapter Two offense level was determined pursuant to 
Sec. Sec.  2D1.1 or 2D1.11, apply an additional reduction according to 
the following:

------------------------------------------------------------------------
  Base offense level from Sec.   2D1.1 or
               Sec.   2D1.11                    Additional reduction
------------------------------------------------------------------------
(1) level [30]............................  [1] level
(2) level [32-34].........................  [1][2] levels
(3) level [36-38].........................  [1][2][3] levels.''.
------------------------------------------------------------------------

    Issue for Comment:
    The proposed amendment provides an alternative method to the 
mitigating role cap in Sec.  2D1.1 for minimizing offense level 
severity for a certain category of drug defendants. Under this 
alternative approach, should the additional reduction for mitigating 
role defendants begin at a lower or higher base offense level? Should 
the reduction be scaled differently in relation to the drug quantity 
base offense level? Should certain offenses and/or offenders be 
disqualified from receiving the additional mitigating role reduction 
(e.g., defendants convicted under 21 U.S.C. 849, 859, 860, or 861; 
defendants who used or threatened violence; defendants who possessed or 
used a weapon; defendants who involved a minor in the offense; or 
defendants who have a prior felony drug trafficking conviction)? 
Alternatively, should the Commission simply repeal the current 
mitigating role cap without providing any alternative method? Are there 
any other approaches that the Commission should consider, and if so, 
what are they?

Proposed Amendment 7: Homicide

    Synopsis of Proposed Amendment: This amendment proposes a number of 
changes to the homicide and assault guidelines to address longstanding 
proportionality concerns and to implement the directive in section 
11008(e) of the 21st Century Department of Justice Appropriations 
Authorization Act (the ``Act''), Public Law 107-273.
    First, this amendment proposes a number of changes to the homicide 
guidelines. Generally, the amendment proposes increases in the base 
offense levels in the guidelines for second degree murder, voluntary 
manslaughter, and involuntary manslaughter to address proportionality 
issues among the homicide guidelines and between the homicide 
guidelines and other offense guidelines in Chapter Two, such as 
kidnapping and the production of child pornography.
    The amendment also proposes to add a special instruction in the 
involuntary manslaughter guideline (Sec.  2A1.4), providing that if the 
offense involved involuntary manslaughter of more than one victim, 
Chapter Three, Part D (Multiple Counts) should be applied as if the 
involuntary manslaughter of each victim had been contained in a 
separate count of conviction. The purpose of the instruction is to 
ensure incremental punishment for multiple victims. An issue for 
comment follows regarding whether such an instruction should be added 
to each of the other homicide guidelines.
    The amendment also proposes to eliminate and/or revise existing 
outdated commentary in some of the homicide guidelines.
    Second, this amendment proposes a number of changes to the assault 
guidelines and the Chapter Three adjustment relating to official 
victims to address section 11008(e) of the Act. That section directs 
the Commission as follows:

[[Page 75368]]

    ``(1) IN GENERAL.--Pursuant to its authority under section 994 of 
title 28, United States Code, the United States Sentencing Commission 
shall review and amend the Federal sentencing guidelines and the policy 
statements of the commission, if appropriate, to provide an appropriate 
sentencing enhancement for offenses involving influencing, assaulting, 
resisting, impeding, retaliating against, or threatening a Federal 
judge, magistrate judge, or any other official described in section 111 
or 115 of title 18, United States Code.
    (2) FACTORS FOR CONSIDERATION.--In carrying out this section, the 
United States Sentencing Commission shall consider, with respect to 
each offense described in paragraph (1)--
    (A) any expression of congressional intent regarding the 
appropriate penalties for the offense;
    (B) the range of conduct covered by the offense;
    (C) the existing sentences for the offense;
    (D) the extent to which sentencing enhancements within the Federal 
guidelines and the authority of the court to impose a sentence in 
excess of the applicable guideline range are adequate to ensure 
punishment at or near the maximum penalty for the most egregious 
conduct covered by the offense;
    (E) the extent to which the Federal sentencing guideline sentences 
for the offense have been constrained by statutory maximum penalties;
    (F) the extent to which the Federal sentencing guidelines for the 
offense adequately achieve the purposes of sentencing as set forth in 
section 3553(a)(2) of title 18, United States Code;
    (G) the relationship of the Federal sentencing guidelines for the 
offense to the Federal sentencing guidelines for other offenses of 
comparable seriousness; and
    (H) any other factors that the Commission considers to be 
appropriate.''.
    Section 111 of title 18, United States Code, makes it unlawful to 
forcibly assault, resist, oppose, impede, intimidate, or interfere with 
(A) any person designated in section 1114 of title 18 (i.e., any 
officer or employee of the United States, including any member of the 
uniformed services in the performance of that person's official duties, 
or any person assisting that person in the performance of those 
official duties); or (B) any person who formerly served as a person 
designated in section 1114 on account of that person's performance of 
official duties during the term of service.
    The Act increased the statutory maximum term of imprisonment for 
offenses under 18 U.S.C. 111 from three years to eight years; and for 
the use of a dangerous weapon or inflicting bodily injury in the 
commission of an offense under 18 U.S.C. 111, from ten to 20 years.
    Section 115 of title 18, United States Code, makes it unlawful to 
(A) assault, kidnap, or murder, attempt or conspire to kidnap or 
murder, or threaten to assault, kidnap, or murder, a member of the 
immediate family of a United States official, a United States judge, a 
Federal law enforcement officer, or an official whose killing would be 
a crime under 18 U.S.C. 1114; or (B) threaten to assault, kidnap, or 
murder a United States official, a United States judge, a Federal law 
enforcement officer, or an official whose killing would be a crime 
under 18 U.S.C. 1114; in order to impede, intimidate, or interfere with 
the performance of the official's official duties.
    Section 115 of title 18, United States Code, also makes it unlawful 
to assault, kidnap, or murder, attempt or conspire to kidnap or murder, 
or threaten to assault, kidnap, or murder, a former United States 
official, a United States judge, a Federal law enforcement officer, or 
an official whose killing would be a crime under 18 U.S.C. 1114, or a 
member of the former official's immediate family, in retaliation for 
the performance of the official's duties during the official's term of 
service.
    The Act increased the maximum terms of imprisonment for threatened 
assaults under 18 U.S.C. 115 from three to six years, and for all other 
threats under 18 U.S.C. 115, from five to ten years.
    In addition, the Act also increased the maximum term of 
imprisonment under 18 U.S.C. 876 from five years to ten years for 
mailing a communication to a United States judge, a Federal law 
enforcement officer, or an official covered by 18 U.S.C. 1114 
containing a threat to kidnap or injure any person (the penalty 
remained five years for mailing such a communication to any other 
person).
    The Act also increased the maximum term of imprisonment under 18 
U.S.C. 876 from two years to ten years for mailing, with the intent to 
extort anything of value, a communication to a United States judge, a 
Federal law enforcement officer, or an official covered by 18 U.S.C. 
1114 containing a threat to injure another's property or reputation or 
a threat to accuse another of a crime (the penalty remained two years 
for mailing such a communication to any other person). The other 
statutory maximum terms of imprisonment for offenses under 18 U.S.C. 
876 were not changed by the Act. Mailing threatening communications 
containing a ransom demand for the release of a kidnapped person or 
containing a threat to kidnap with the intent to extort something of 
value remain punishable by up to 20 years' imprisonment.
    The amendment proposes a number of changes to the assault 
guidelines and the Chapter Three adjustment relating to official 
victims to implement the directive and the changes in statutory maximum 
penalties. These proposed modifications to the offense levels in some 
of the assault guidelines complement the proposed amendments to the 
homicide guidelines, which are intended to address longstanding 
proportionality concerns. Issues for comment follow regarding whether 
the base offense level in the assault guideline should be reduced by 
[two] levels, whether the aggravated assault guideline should contain 
an enhancement for the involvement of a dangerous weapon, whether the 
assault guidelines should be consolidated, and whether the Chapter 
Three adjustment for official victims should provide a tiered approach, 
such that a [six]-level adjustment would apply if the victim was a 
government officer or employee (or family member thereof) and the 
offense was motivated by such status, and a three-level adjustment 
would apply if the victim was a law enforcement officer or prison 
employee and was assaulted in a certain manner.
    Proposed Amendment:
    The Commentary to Sec.  2A1.1 captioned ``Application Notes'' is 
amended by striking Notes 1 and 2 in their entirety and inserting the 
following:
    ``1. Applicability of Guideline.--This guideline applies in cases 
of premeditated killing. This guideline also applies when death results 
from the commission of certain felonies. For example, this guideline 
may be applied as a result of a cross reference (e.g., a kidnapping in 
which death occurs), or in cases in which the offense level of a 
guideline is calculated using the underlying crime (e.g., murder in aid 
of racketeering).
    2. Imposition of Life Sentence.--
    (A) In General.--An offense level of 43 (i.e., the base offense 
level under this guideline) results in a guideline sentence of life 
imprisonment in all criminal history categories. In cases in which a 
statutory mandatory minimum sentence is life imprisonment, the 
defendant shall be sentenced to life imprisonment, even if the 
defendant

[[Page 75369]]

received a reduction for acceptance of responsibility under Sec.  3E1.1 
(Acceptance of Responsibility).
    (B) Offenses Involving Premeditated Killing.--In the absence of 
capital punishment, life imprisonment is the appropriate sentence in 
the case of premeditated killing. A downward departure would not be 
appropriate in such a case.
    (C) Unintentional or Unknowing Killing.--If the defendant did not 
cause the death intentionally or knowingly, a downward departure may be 
warranted. For example, a downward departure may be warranted if in 
robbing a bank, the defendant merely passed a note to the teller, as a 
result of which the teller had a heart attack and died. The extent of 
the departure should be based upon the defendant's state of mind (e.g., 
recklessness or negligence), the degree of risk inherent in the 
conduct, and the nature of the underlying offense conduct. However, 
departure below the offense level specified in Sec.  2A1.2 (Second 
Degree Murder) is not likely to be appropriate. Also, because death 
obviously is an aggravating factor, it necessarily would be 
inappropriate to impose a sentence at a level below that which the 
guideline for the underlying offense requires in the absence of death. 
A downward departure from a mandatory statutory term of life 
imprisonment is permissible only in cases in which the government files 
a motion for a downward departure for the defendant's substantial 
assistance, as provided in 18 U.S.C. 3553(e).
    3. Applicability of Guideline When Death Sentence Not Imposed.--If 
the defendant is sentenced pursuant to 18 U.S.C. 3591 et seq. or 21 
U.S.C. 848(e), a sentence of death may be imposed under the specific 
provisions contained in that statute. This guideline applies when a 
sentence of death is not imposed under those specific provisions.''.
    Section 2A1.2(a) is amended by striking ``33'' and inserting 
``[37][38]''.
    The Commentary to Sec.  2A1.2 is amended by striking the Background 
commentary in its entirety and inserting the following:
    ``Application Note:
    1. Upward Departure Provision.--If the defendant's conduct was 
exceptionally heinous, cruel, brutal, or degrading to the victim, an 
upward departure may be warranted. See Sec.  5K2.8 (Extreme 
Conduct).''.
    Section 2A1.3(a) is amended by striking ``25'' and inserting 
``[26]-[30]''.
    The Commentary to Sec.  2A1.3 is amended by striking the Background 
commentary in its entirety.
    Section 2A1.4(a) is amended in subdivision (1) by striking 
``conduct was criminally negligent'' and inserting ``offense involved 
negligent conduct''; and by striking subdivision (2) in its entirety 
and inserting the following:
    ``(2) Apply the greater:
    (A) 18, if the offense involved reckless conduct; or
    (B) [20]-[26], if the offense involved the reckless operation of a 
means of transportation.''.
    Section 2A1.4 is amended by adding at the end the following:
``(b) Special Instruction
    (1) If the offense involved the involuntary manslaughter of more 
than one person, Chapter Three, Part D (Multiple Counts) shall be 
applied as if the involuntary manslaughter of each person had been 
contained in a separate count of conviction.''.
    The Commentary to Sec.  2A1.4 captioned ``Application Notes'' is 
amended in the heading by striking ``Notes'' and inserting ``Note''; by 
striking Notes 1 and 2 in their entirety and inserting the following:
    ``1. Definitions.--For purposes of this guideline:
    `Criminally negligent' means conduct that involves a gross 
deviation from the standard of care that a reasonable person would 
exercise under the circumstances, but which is not reckless. Offenses 
with this characteristic usually will be encountered as assimilative 
crimes.
    `Means of transportation' includes a motor vehicle (including an 
automobile or a boat) and a mass transportation vehicle. `Mass 
transportation' has the meaning given that term in 18 U.S.C. 
1993(c)(5).
    `Reckless' means a situation in which the defendant was aware of 
the risk created by his conduct and the risk was of such a nature and 
degree that to disregard that risk constituted a gross deviation from 
the standard of care that a reasonable person would exercise in such a 
situation. `Reckless' includes all, or nearly all, convictions for 
involuntary manslaughter under 18 U.S.C. 1112. A homicide resulting 
from driving, or similarly dangerous actions, while under the influence 
of alcohol or drugs ordinarily should be treated as reckless.''.
    Section 2A1.5(a) is amended by striking ``28'' and inserting 
``[32]-[37]''.
    Section 2A2.1(a) is amended in subdivision (1) by striking ``28'' 
and inserting ``[32]-[37]''; and in subdivision (2) by striking ``22'' 
and inserting ``[26][28][30]''.
    The Commentary to Sec.  2A2.1 captioned ``Application Notes'' is 
amended by striking Notes 1 and 2 in their entirety and inserting the 
following:
    ``1. Definitions.--For purposes of this guideline:
    `First degree murder,' means conduct that, if committed within the 
special maritime and territorial jurisdiction of the United States, 
would constitute first degree murder under 18 U.S.C. 1111.
    `Serious bodily injury' and `permanent or life-threatening bodily 
injury' have the meaning given those terms in the Commentary to Sec.  
1B1.1 (Application Instructions).'';
    by redesignating Note 3 as Note 2; and in Note 2, as redesignated 
by this amendment, by inserting ``Upward Departure Provision.--'' 
before ``If the offense''.
    Section 2A2.2 is amended by striking subdivision (a) in its 
entirety and inserting the following:
    ``(a) Base Offense Level (Apply the greater):
    (1) 15; or
    (2) [27], if the defendant is convicted under 18 U.S.C. 111(b).''.
    The Commentary to Sec.  2A2.2 captioned ``Application Notes'' is 
amended by striking Note 2 in its entirety; by redesignating Note 3 as 
Note 2; and by adding at the end the following:
    ``3. Application of Subsection (b)(2).--In a case involving a 
dangerous weapon with intent to cause bodily injury, the court shall 
apply both the base offense level and subsection (b)(2).
    4. Application of Official Victim Adjustment.--The base offense 
level in subsection (a)(2) incorporates the fact (A) that the victim 
was a government official performing official duties; or (B) that the 
victim formerly was a government official and the assault occurred on 
account of the victim's performance of official duties during the time 
of the victim's official service. Accordingly, if subsection (a)(2) 
applies, do not apply Sec.  3A1.2 (Official Victim).''.
    Section 2A2.3 is amended in subdivision (a)(1) by striking ``6'' 
and inserting ``[9]''; and by striking ``conduct'' and inserting 
``offense''; and in subdivision (a)(2) by striking ``3'' and inserting 
``[6]''.
    Section 2A2.3(b)(1) is amended by striking ``If'' and inserting 
``(Apply the greater) If (A) the victim sustained bodily injury, 
increase by 2 levels; or (B)''.
    The Commentary to Sec.  2A2.3 captioned ``Application Notes'' is 
amended by striking ``Notes'' and inserting ``Note''; and by striking 
Notes 1, 2, and 3 in their entirety and inserting the following:
    ``1. Definitions.--For purposes of this guideline:
    `Bodily injury', `dangerous weapon', and `firearm' have the meaning 
given those terms in the Commentary to Sec.  1B1.1 (Application 
Instructions).

[[Page 75370]]

    `Minor assault' means a misdemeanor assault, or a felonious assault 
not covered by Sec.  2A2.2 (Aggravated Assault).
    `Substantial bodily injury' means ``bodily injury which involves 
(A) a temporary but substantial disfigurement; or (B) a temporary but 
substantial loss or impairment of the function of any bodily member, 
organ, or mental faculty.'' See 18 U.S.C. 113(b)(1).''.
    Section 2A2.4(a) is amended by striking ``6'' and inserting 
``[12]''.
    Section 2A2.4(b) is amended by striking ``Characteristic'' and 
inserting ``Characteristics''; in subdivision (1) by striking 
``conduct'' and inserting ``offense''; and by adding at the end the 
following:
    ``(2) If the victim sustained bodily injury, increase by 2 
levels.''.
    The Commentary to Sec.  2A2.4 captioned ``Application Notes'' is 
amended by striking Notes 1 and 2 in their entirety and inserting the 
following:
    ``1. Definitions.--For purposes of this guideline, `bodily injury', 
`dangerous weapon', and `firearm' have the meaning given those terms in 
the Commentary to Sec.  1B1.1 (Application Instructions).
    2. Application of Certain Chapter Three Adjustments.--The base 
offense level incorporates the fact that the victim was a governmental 
officer performing official duties. Therefore, do not apply Sec.  3A1.2 
(Official Victim) unless, pursuant to subsection (c), the offense level 
is determined under Sec.  2A2.2 (Aggravated Assault) and the base 
offense level under Sec.  2A2.2(a)(2) does not apply. Conversely, the 
base offense level does not incorporate the possibility that the 
defendant may create a substantial risk of death or serious bodily 
injury to another person in the course of fleeing from a law 
enforcement official (although an offense under 18 U.S.C. 758 for 
fleeing or evading a law enforcement checkpoint at high speed will 
often, but not always, involve the creation of that risk). If the 
defendant creates that risk and no higher guideline adjustment is 
applicable for the conduct creating the risk, apply Sec.  3C1.2 
(Reckless Endangerment During Flight).''.
    The Commentary to 2A2.4 captioned ``Application Notes'' is amended 
in Note 3 by inserting ``Upward Departure Provision.--'' before ``The 
base''.
    Section 3A1.2 is amended to read as follows:
``Sec.  3A1.2. Official Victim
    Increase by [6] levels if--
    (1) (A) the victim was (i) a government officer or employee; (ii) a 
former government officer or employee; or (iii) a member of the 
immediate family of a person described in subdivision (i) or (ii); and 
(B) the offense of conviction was motivated by such status; or
    (2) in a manner creating a substantial risk of serious bodily 
injury, the defendant or a person for whose conduct the defendant is 
otherwise accountable--
    (A) knowing or having reasonable cause to believe that a person was 
a law enforcement officer, assaulted such officer during the course of 
the offense or immediate flight therefrom; or
    (B) knowing or having reasonable cause to believe that a person was 
a prison official, assaulted such official while the defendant (or a 
person for whose conduct the defendant is otherwise accountable) was in 
the custody or control of a prison or other correctional facility.''.
    The Commentary to Sec.  3A1.2 captioned ``Application Notes'' is 
amended in Note 2 in the second sentence by striking ``subdivision 
(a)'' and inserting ``this adjustment''; in the third sentence by 
striking ``guideline'' and inserting ``guidelines''; and by striking 
``is'' and inserting ``are (A) subsection (a)(2) of Sec.  2A2.2 
(Aggravated Assault); and (B)''.
    The Commentary to Sec.  3A1.2 captioned ``Application Notes'' is 
amended in Note 3 by striking ``Subsection (a)'' and inserting 
``Subdivision (1)''; and by striking ``subsection (a)'' and inserting 
``subdivision (1)''.
    The Commentary to Sec.  3A1.2 captioned ``Application Notes'' is 
amended in Note 4 by striking ``Subsection (b)'' each place it appears 
and inserting ``Subdivision (2)''; and by striking ``subsection (b)'' 
each place it appears and inserting ``subdivision (2)''.
    The Commentary to Sec.  3A1.2 captioned ``Application Notes'' is 
amended by striking Note 5 in its entirety and inserting the following:
    ``5. Upward Departure Provision.--If the official victim is an 
exceptionally high-level official, such as the President or the Vice 
President of the United States, an upward departure may be warranted 
due to the potential disruption of the governmental function.''.
    Issues for Comment:
    1. Instead of the proposed alternative base offense level in Sec.  
2A2.2 (Aggravated Assault) in the case of a conviction under 18 U.S.C. 
111(b) and the proposed three-level increase in the Chapter Three 
adjustment for official victims in Sec.  3A1.2 (Official Victims), 
should the Commission provide an enhancement in the assault guidelines 
for offenses involving influencing, assaulting, resisting, impeding, 
retaliating against, or threatening a Federal judge, magistrate judge, 
or any other official described in 18 U.S.C. 111 or 115? If so, what 
would be an appropriate increase for such enhancement?
    Are there additional, related enhancements that the Commission 
should provide in the assault guidelines, particularly given the 
directive to consider providing sentences at or near the statutory 
maximum for the most egregious cases? Would such an enhancement be 
appropriate for other Chapter Two guidelines that cover these offenses, 
such as the guidelines covering attempted murder (Sec.  2A2.1), 
kidnapping (Sec.  2A4.1), and threatening communications (Sec.  2A6.1)?
    Should the Commission consider providing a tiered approach in the 
Chapter Three adjustment for official victims (Sec.  3A1.2) such that a 
[six]-level adjustment would apply if the victim was a government 
officer or employee (or family member thereof) and the offense was 
motivated by such status, and a three-level adjustment would apply if 
the victim was a law enforcement officer or prison employee and was 
assaulted in a certain manner?
    2. Do the current base offense levels in each of the assault and 
threatening communications guidelines provide adequate punishment for 
the covered conduct? If not, what would be appropriate base offense 
levels for Sec. Sec.  2A2.2, 2A2.3, 2A2.4, and 2A6.1? For example, 
should the base offense level for offenses involving obstructing or 
impeding officers under Sec.  2A2.4 be level 15, the same as for 
aggravated assault, and contain the same enhancements as the aggravated 
assault guideline, so that an assault of an official unaccompanied by 
serious bodily injury would nevertheless be severely punished?
    3. Should the Commission consider more comprehensive amendments to 
the assault guidelines as part of, or in addition to, its response to 
the directives? For example, should the Commission consolidate any or 
all of the assault guidelines?
    In addition to the two-level enhancement for bodily injury proposed 
in Sec. Sec.  2A2.3(b)(1) and 2A2.4(b)(2), are there other aggravating 
or mitigating circumstances that should be incorporated into those 
guidelines?
    Should the base offense level in the aggravated assault guideline 
generally be decreased by two levels? Should it be decreased by two 
levels in cases in which none of the specific offense characteristics 
apply (i.e., in cases in

[[Page 75371]]

which there are no aggravating circumstances)?
    Are there any other application issues pertaining to the assault 
guidelines that the Commission should address?
    4. Should the base offense level in Sec.  2A1.4 for involuntary 
manslaughter be increased, and if so, to what extent? Should additional 
specific offense characteristics be added for involuntary manslaughter 
offenses, including: (A) A four-level increase if death occurred while 
the defendant was driving intoxicated or under the influence of alcohol 
or drugs, or if alcohol and/or drugs otherwise were involved in the 
offense; (B) a two-level increase if the actions of the defendant 
resulted in multiple homicides; and (C) a two-level increase if the 
offense involved the use of a dangerous weapon?
    The amendment proposes to add a special instruction in the 
involuntary manslaughter guideline to treat offenses involving multiple 
persons as if the conduct with respect to each person had been 
contained in a separate count of conviction. Should the Commission add 
this special instruction to each of the homicide guidelines?
    5. Should specific offense characteristics be added in Sec.  2A1.3 
for voluntary manslaughter, including (A) a two-level increase for use 
of a weapon; and (B) a four-level increase for use of a firearm?

Proposed Amendment 8: Miscellaneous Amendments

    Synopsis of Proposed Amendment: This proposed amendment makes 
changes to various sentencing guidelines as follows:
    (A) Clarifies that the application of Sec.  2B1.1(b)(7)(C) in the 
fraud/theft guideline, regarding a violation of a prior judicial order, 
is defendant based. Current Application Note 6(C) states that 
``[s]ubsection (b)(7)(C) provides an enhancement if the defendant 
commits a fraud in contravention of a prior, official judicial or 
administrative warning * * *''. The note, however, seemingly conflicts 
with the language of the enhancement itself, at Sec.  2B1.1(b)(7)(C), 
which uses a relevant conduct construct (i.e., ``if the offense 
involved''). Given that the underlying principle of the enhancement is 
to provide increased punishment for an individual who demonstrates 
aggravated criminal intent by knowingly ignoring a prior warning not to 
engage in particular conduct, see USSG Sec.  2B1.1, comment. n. 6(C), 
the proposed amendment restructures Sec.  2B1.1(b)(7) to clarify that 
application of the prior judicial order enhancement is defendant based. 
The proposed amendment also makes necessary technical and conforming 
amendments to the commentary.
    (B) Expands the special multiple victim rule in the fraud/theft 
guideline, Sec.  2B1.1, Application Note 4(B)(ii), for offenses 
involving stolen U.S. mail to include mail collection and delivery 
units that serve multiple postal customers (e.g., apartment bank 
boxes). The special rule is that any offense that involves stolen mail 
from a Postal Service mail box, cart, or satchel shall be considered to 
have involved 50 or more victims. The Commission has been informed, 
however, that the rule as currently written does not apply in cases in 
which mail is stolen from privately owned mail boxes such as those 
found in apartment complexes or other multiple dwelling communities. 
The proposed amendment uses language suggested by the Postal Service to 
include privately owned mail boxes within the special rule.
    (C) Modifies Sec.  2B1.1(b)(9), which provides a two-level 
enhancement and a minimum offense level of level 12, in response to the 
SAFE ID Act (section 607 of the PROTECT Act, Pub. L. 108-21). That Act 
created a new offense at 18 U.S.C. Sec.  1028(a)(8) prohibiting the 
trafficking of authentication features (e.g., a hologram or symbol used 
by a government agency to determine whether a document is counterfeit, 
altered, or otherwise falsified), and amended 18 U.S.C. 1028 to 
prohibit the transfer or possession of authentication features. The 
proposed amendment makes Sec.  2B1.1(b)(9) applicable to offenses 
involving authentication features.
    (D) Addresses a new offense provided at 18 U.S.C. 25 (Use of minors 
in crimes of violence), which was created by section 601 of the PROTECT 
Act. Section 25 of title 18, United States Code, prohibits any person 
who is 18 years of age or older from intentionally using a minor to 
commit a crime of violence or to assist in avoiding detection or 
apprehension for such offense. The penalties for committing the offense 
are, for the first conviction, ``subject to twice the maximum term of 
imprisonment * * * that would otherwise be authorized for the 
offense'', and for each subsequent conviction, ``subject to 3 times the 
maximum term of imprisonment * * * that would otherwise be authorized 
for the offense.''
    The guidelines currently address the use of a minor to commit an 
offense in Sec.  3B1.4 (Using a Minor To Commit a Crime). That 
guideline provides a two-level adjustment and applies to any offense in 
which a defendant used or attempted to use a minor to commit the 
offense or assist in avoiding detection of, or apprehension for, the 
offense. Given that the PROTECT Act created a new substantive offense 
for the use of a minor in crimes of violence, the proposed amendment 
creates a new guideline for 18 U.S.C. Sec.  25 offenses rather than 
build on Sec.  3B1.4. The proposed guideline at Sec.  2X6.1 (Use of a 
Minor to Commit a Crime of Violence) directs the court to increase by 
[2][4][6] levels the offense level from the guideline applicable to the 
offense of which the defendant is convicted of using a minor. A base 
offense level of [2], however, would be consistent with the offense 
level increase currently provided by Sec.  3B1.4. An issue for comment 
follows the amendment regarding whether, if the Commission were to 
adopt an offense level increase of [4]or [6], the Commission also 
should amend Sec.  3B1.4 to provide consistent penalties.
    The proposed amendment also (i) provides application notes 
addressing the interaction of the new guideline with Sec.  3B1.4 and 
the grouping of multiple counts; and (ii) amends Appendix A (Statutory 
Index) to reference the new offense.
    (E) Corrects typographical error in Application Note 4 of Sec.  
3C1.1 (Obstruction or Impeding the Administration of Justice).
    (F) Conforms the definition of ``crime of violence'' in Sec.  4B1.2 
(Definitions of Terms Used in Section 4B1.1) to the definition provided 
in Sec.  2L1.2 (Unlawfully Entering or Remaining in the United States), 
effective November 1, 2003, by including specific reference to 
statutory rape and sexual abuse of a minor.
    The proposed amendment also adds to the definition of ``crime of 
violence'' possession of a sawed-off shotgun and other firearms of the 
type described in 26 U.S.C. 5845(a). Congress determined that such 
firearms are inherently dangerous and, when possessed unlawfully, serve 
only violent purposes. Accordingly, Congress passed The National 
Firearms Act, Public Law 90-618, which in part requires such firearms 
to be registered with National Firearms Registration and Transfer 
Record. See 26 U.S.C. 5861(d). Notwithstanding that Application Note 1 
of Sec.  4B1.2 excludes from the definition of ``crime of violence'' 
the offense of unlawful possession of a firearm by a felon, several 
circuit courts have held that possession of a sawed-off shotgun is a 
``crime a violence'' because under Sec.  4B1.2(a)(2) the offense 
``otherwise involves conduct that presents a serious potential risk of 
physical injury to another''. See, e.g., United States v.

[[Page 75372]]

Serna, 309 F.3d 859, 864 (5th Cir. 2002) (unlawful possession of a 
sawed-off shotgun constitutes conduct that, by its nature, poses a 
serous potential risk of injury to another and is therefore a crime of 
violence under Sec.  4B1.2(a)); United States v. Johnson, 246 F.3d 330 
(4th Cir. 2001) (possession of a sawed-off shotgun always creates a 
serious risk of physical injury to another person and therefore is a 
crime of violence for career offender purposes); United States v. 
Brazeau, 237 F.3d 842, 845 (7th Cir. 2001) (sawed-off shotguns are 
inherently dangerous and the possession of such a firearm is a crime of 
violence); see also United States v. Fortes, 141 F.3d 1 (1st Cir. 1998) 
(possession of a sawed-off shotgun is a ``violent felony'' for purposes 
of 18 U.S.C. Sec.  924(e) (the Armed Career Criminal Act)). An 
important distinguishing factor for these courts' holdings is that 
``most weapons do not have to be registered--only those weapons that 
Congress found to be inherently dangerous'' must be registered. Brazeau 
at 845. ``If the weapon is not so labeled, mere possession by a felon 
is not a crime of violence.'' Id. Indeed, at the time the Commission 
amended Sec.  4B1.2 to exclude the offense of felon in possession from 
the definition of ``crime of violence'', it was only concerned with 
felons possessing ordinary handguns and rifles and did not address more 
serious firearms.
    The proposed amendment addresses the issue by adopting a 
categorical rule that possession of a firearm described in 26 U.S.C. 
5845(a) is a crime of violence. (Besides sawed-off shotguns, section 
5845(a) includes silencers, machine guns, and destructive devices). 
This part of the proposed amendment addresses the case in which the 
court has to determine whether a prior offense (state or federal) for 
possessing a sawed-off shot gun (or other section 5845(a) weapon) 
qualifies as a crime of violence, as for example, in determining the 
appropriate base offense level in Sec.  2K2.1. The proposed amendment 
also modifies the rule that excludes felon in possession offenses from 
the definition of ``crime of violence'' to except from that rule 
possession of firearms that are of the type described in 26 U.S.C. 
5845(a).
    (G) Generally updates Chapter Six (Sentencing Procedures and Plea 
Agreements), and in particular, incorporates amendments made to Rules 
11 and 32 of the Federal Rules of Criminal Procedure, effective 
December 1, 2002. Those amendments made some substantive changes but 
mostly reorganized Rules 11 and 32 as part of a general restyling of 
the Federal Rules of Criminal Procedure to make the rules more easily 
understood and to make style and terminology consistent throughout the 
rules. This proposed amendment reflects relevant substantive amendments 
and stylistic changes (including redesignations).
    While much of the proposed amendment of Chapter Six is stylistic 
and conforming, the more significant aspects of the proposal can be 
summarized as follows:
    [sbull] Amends Sec.  6A1.2 (Disclosure of Presentence Report; 
Issues in Dispute) to set out the specific procedural requirements 
governing the disclosure of the presentence report and any issues in 
dispute as required by Rule 32. Currently, Sec.  6A1.2 provides that 
the court should adopt procedures for the timely disclosure of the 
presentence report, the resolution of disputed issues prior to the 
sentencing hearing, and the identification of any unresolved issues. 
Rule 32 was amended in 1997 to provide particular procedural deadlines 
and requirements for the disclosure of the presentence report and 
issues in dispute and, in December 2002, those deadlines and 
requirements were reorganized to read more easily. This proposed 
amendment reflects those changes.
    [sbull] Moves Application Note 1 of Sec.  6A1.2, regarding a 
requirement that the court provide notice of departure, to its own 
policy statement. The Commission added the application note in 1997 in 
light of Burns v. United States, 501 U.S. 129, 138-39 (1991), in which 
the Court held that, before a sentencing court may depart upward on a 
ground not previously identified in the presentence report, Rule 32 
requires the court to give the parties reasonable notice that it is 
contemplating such a departure. The Court also stated that because the 
procedural entitlements in Rule 32 apply equally to both parties, it 
was equally appropriate to frame the issue as whether notice is 
required before the sentencing court departed either upward or 
downward. Proposed policy statement Sec.  6A1.4 (Notice of Possible 
Departure) reflects the substantive amendment that added subsection (h) 
to Rule 32 specifically to incorporate the Burns holding.
    [sbull] Deletes outdated commentary regarding pre-guidelines 
procedures.
    [sbull] Fully incorporates into Sec.  6B1.3 the procedure set forth 
in Rule 11(c)(5) that the court must follow when the court rejects a 
plea agreement containing provisions of the type specified in Rule 
11(c)(1)(A) or (C).
    Please note that the PROTECT Act amendments, effective October 27, 
2003, updated the references to Rule 11 in Sec.  6B1.2.
    (H) Makes conforming amendments to various guideline provisions and 
commentary in light of PROTECT Act departure amendments promulgated at 
the October meeting.
    (I) Corrects error in the examples provided in Application Note 
3(B)(iii) of Sec.  5G1.2 (Sentencing on Multiple Counts of Conviction).
    (J) Provides an issue for comment regarding an apparent double-
counting issue in cases in which (i) the defendant is convicted of 18 
U.S.C. 922(g) (felon in possession), (ii) is an armed career criminal 
under Sec.  4B1.4, and (iii) is convicted of an 18 U.S.C. 924(c) (use 
of a firearm during a drug trafficking offense or crime of violence).
    Proposed Amendment:

(A) Clarifying Application of Sec.  2B1.1(b)(7)(C)

    Section 2B1.1(b)(7) is amended by inserting ``(A)'' before ``the 
offense''; by striking ``involved (A)'' and inserting ``involved (i)''; 
by striking ``(B)'' and inserting ``(ii)''; by striking ``(C) a 
violation of any prior, specific judicial or administrative order, 
injunction, decree, or process not addressed elsewhere in the 
guidelines; or (D)'' and inserting ``(iii)''; and by striking the comma 
after ``education'' and inserting ``; or (B) the defendant violated a 
prior, specific judicial or administrative order, injunction, decree, 
or process not addressed elsewhere in the guidelines,''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 6 in subdivision (B) by inserting ``(i)'' after 
``Subsection (b)(7)(A)'' each place it appears; by striking subdivision 
(C) in its entirety; and by redesignating subdivision (D) as 
subdivision (C).
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 6 in subdivision (C), as redesignated by this 
amendment; by striking ``subsection (b)(7)(D)'' and inserting 
``subsection (b)(7)(A)(iii)''; and by inserting after subdivision (C), 
as redesignated by this amendment, the following:
    ``(D) Offenses Committed in Contravention of Prior Judicial 
Order.--Subsection (b)(7)(B) provides an enhancement if the defendant 
commits an offense in contravention of a prior, official judicial or 
administrative warning, in the form of an order, injunction, decree, or 
process, to take or not to take a specified action. A defendant who 
does not comply with such a prior, official judicial or administrative 
warning demonstrates aggravated criminal intent and deserves additional 
punishment. If it is

[[Page 75373]]

established that an entity the defendant controlled was a party to the 
prior proceeding that resulted in the official judicial or 
administrative action, and the defendant had knowledge of that prior 
decree or order, this enhancement applies even if the defendant was not 
a specifically named party in that prior case. For example, a defendant 
whose business previously was enjoined from selling a dangerous 
product, but who nonetheless engaged in fraudulent conduct to sell the 
product, is subject to this enhancement. This enhancement does not 
apply if the same conduct resulted in an enhancement pursuant to a 
provision found elsewhere in the guidelines (e.g., a violation of a 
condition of release addressed in Sec.  2J1.7 (Commission of Offense 
While on Release) or a violation of probation addressed in Sec.  4A1.1 
(Criminal History Category)).''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 6 in subdivision (E)(i) by inserting ``(i)'' after 
``(b)(7)(A)'' each place it appears; and in subdivision (E)(ii) by 
striking ``(b)(7)(B) and (C)'' and inserting ``(b)(7)(A)(ii) and (B)''; 
and by striking ``(b)(7)(B) or (C)'' and inserting ``(b)(7)(A)(ii) or 
(B)''.

(B) Expanding Special Rule for Theft of Mail To Include Privately Owned 
Boxes

    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 4 by striking subdivision (B)(ii) in its entirety and 
inserting:
    ``(ii)Special Rule.--A case described in subdivision (B)(i) of this 
note that involved a relay box, a collection box, a delivery vehicle, a 
satchel, a cart, a housing unit cluster box, an apartment box, or any 
other thing used or designed for use in the conveyance of [Option 1: a 
large volume of] United States mail [Option 2: to multiple addresses], 
whether such thing is privately owned or owned by the United States 
Postal Service, shall be considered to have involved 50 or more 
victims.''.

(C) SAFE ID Act

    Section 2B1.1(b)(9) is amended by inserting ``(i)'' before 
``device-making''; by inserting ``; or (ii) authentication feature'' 
after ``equipment''; by inserting ``(i)'' before ``unauthorized 
access''; and by inserting ``; (ii) or authentication feature'' after 
``access device''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 8(A) by inserting before the paragraph that begins 
``'Counterfeit access device''' the following paragraph:
    `` `Authentication feature' has the meaning given that term in 18 
U.S.C. Sec.  1028(d)(1).''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 8(A) in the paragraph that begins `` `Means of 
identification' '' by striking ``(4)'' and inserting ``(7)''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 8(B) by inserting ``Authentication Features and'' 
before ``Identification Documents''; and by inserting ``authentication 
features'' after ``involving''.
    The Commentary to Sec.  2B1.1 captioned ``Background'' is amended 
in the eleventh paragraph by inserting ``(i)'' after ``(A)''; and by 
inserting ``(i)'' after ``(B)''.

(D) Use of Minor To Commit Crimes of Violence (PROTECT Act)

    Chapter Two, Part X is amended by adding at the end the following 
new subpart:
``6. OFFENSES INVOLVING USE OF A MINOR IN A CRIME OF VIOLENCE
Sec.  2X6.1 Use of a Minor in a Crime of Violence
    (a) Base Offense Level: [2][4][6] plus the offense level from the 
guideline applicable to the underlying offense.

Commentary

    Statutory Provision: 18 U.S.C. 25.
    Application Notes:
    1. Definitions.--For purposes of this guideline, `underlying 
offense' means the offense of which the defendant is convicted of using 
a minor. Apply the base offense level plus any applicable specific 
offense characteristic that were known, or reasonably should have been 
known, by the defendant. See Application Note 10 of the Commentary to 
Sec.  1B1.3 (Relevant Conduct).
    2. Non-applicability of Sec.  3B1.4.--The base offense level in 
subsection (a) incorporates the use of a minor in the offense; 
accordingly, do not apply the adjustment in Sec.  3B1.4 (Using a Minor 
to Commit a Crime).
    3. Grouping of Multiple Counts.--In a case in which the defendant 
is convicted under 18 U.S.C. 25 and the underlying crime of violence, 
the counts shall be grouped pursuant to subsection (c) of Sec.  3D1.2 
(Groups of Closely Related Counts).''.
    Appendix A is amended by inserting after the line referenced to 18 
U.S.C. 4 the following new line:
    ``18 U.S.C. 25 2X6.1''.
    Issue for Comment: The proposed new guideline for 18 U.S.C. 25 
offenses directs the court to increase by [two][four][six] levels the 
offense level from the guideline applicable to the offense of which the 
defendant is convicted of using a minor. The statutory penalties for 
the new offense are as follows: For the first conviction, the defendant 
is ``subject to twice the maximum term of imprisonment * * * that would 
otherwise be authorized for the offense'', and for each subsequent 
conviction, the defendant is ``subject to 3 times the maximum term of 
imprisonment * * * that would otherwise be authorized for the 
offense''. A base offense level of [2] (plus the offense level from the 
guideline applicable to the underlying offense), however, would be 
consistent with the offense level increase currently provided by Sec.  
3B1.4 (Using a Minor to Commit a Crime). Notwithstanding the current 
increase in Sec.  3B1.4, should the Commission provide a base offense 
level increase of [four] or [six] levels for proposed Sec.  2X6.1? If 
so, should the Commission also amend Sec.  3B1.4 to provide a greater 
offense level adjustment in order to maintain consistent penalties 
between Sec.  3B1.4 and the proposed new guideline? Should the 
Commission amend Sec.  3B1.4 to conform the definition of ``used or 
attempt to use'' (``includes directing, commanding, encouraging, 
intimidating, counseling, training, procuring, recruiting, or 
soliciting'') to the definition of ``uses'' in 18 U.S.C. 25(a)(3) 
(defined as ``employs, hires, persuades, induces, entices, or 
coerces'')? Finally, are there any specific offense characteristics 
that the Commission should consider providing in the new guideline?

(E) Correcting Typographical Error in Sec.  3C1.1

    The Commentary to Sec.  3C1.1 captioned ``Application Notes'' is 
amended in Note 5(b) by striking ``3(g)'' and inserting ``4(g)''.

(F) ``Crime of Violence'' Definition in Sec.  4B1.2

    The Commentary to Sec.  4B1.2 captioned ``Application Notes'' is 
amended in Note 1 in the paragraph that begins `` `Crime of violence' 
includes'' by inserting ``statutory rape, sexual abuse of a minor,'' 
after ``forcible sex offenses,''.
    The Commentary to Sec.  4B1.2 captioned ``Application Notes'' is 
amended in Note 1 in the paragraph that begins `` `Crime of violence' 
does not'' by striking ``. Where'' and inserting ``, unless the 
possession was of a firearm of a type described in 26 U.S.C. 5845(a). 
If ''.
    The Commentary to Sec.  4B1.2 captioned ``Application Notes'' is 
amended in Note 1 by inserting before the paragraph that begins 
``Unlawfully possessing a prohibited flask'' the following paragraph:

[[Page 75374]]

    ``Unlawfully possessing a firearm that is of a type described in 26 
U.S.C. 5845(a) (e.g., a sawed-off shotgun, silencer, or machine gun) is 
a `crime of violence'.''.

(G) Chapter Six Update

    Section 6A1.1 is amended by striking ``A probation officer'' and 
all that follows through ``presentence report.'' and inserting the 
following:
    ``(a) The probation officer must conduct a presentence 
investigation and submit a report to the court before it imposes 
sentence unless--
    (1) 18 U.S.C. 3593(c) or another statute requires otherwise; or
    (2) the court finds that the information in the record enables it 
to meaningfully exercise its sentencing authority under 18 U.S.C. 3553, 
and the court explains its finding on the record.
    Rule 32(c)(1)(A), Fed. R. Crim. P.
    (b) The defendant may not waive preparation of the presentence 
report.''.
    The Commentary to Sec.  6A1.1 is amended by striking the second 
sentence in its entirety; in the third sentence by striking ``Rule 
32(b)(1)'' and inserting ``Rule 32(c)(1)(A)''; and by striking ``, but 
only after explaining, on the record, why sufficient information is 
already available'' and inserting ``in certain limited circumstances, 
as when a specific statute requires or when the court finds sufficient 
information in the record to enable it to meaningfully exercise its 
statutory sentencing authority and explains its finding on the 
record''.
    Section 6A1.2 is amended by striking ``Courts should adopt'' and 
all that follows through ``Fed. R. Crim. P.'' and inserting the 
following:
    ``(a) The probation officer must give the presentence report to the 
defendant, the defendant's attorney, and an attorney for the government 
at least 35 days before sentencing unless the defendant waives this 
minimum period. Rule 32(e)(2), Fed. R. Crim. P.
    (b) Within 14 days after receiving the presentence report, the 
parties must state in writing any objections, including objections to 
material information, sentencing guideline ranges, and policy 
statements contained in or omitted from the report. An objecting party 
must provide a copy of its objections to the opposing party and to the 
probation officer. After receiving objections, the probation officer 
may meet with the parties to discuss the objections. The probation 
officer may then investigate further and revise the presentence report 
accordingly. Rule 32(f), Fed. R. Crim. P.
    (c) At least 7 days before sentencing, the probation officer must 
submit to the court and to the parties the presentence report and an 
addendum containing any unresolved objections, the grounds for those 
objections, and the probation officer's comments on them. Rule 32(g), 
Fed. R. Crim. P.''.
    The Commentary to Sec.  6A1.2 is amended by striking ``Application 
Note:'' and all that follows through ``(1991).''.
    The Commentary to Sec.  6A1.2 captioned ``Background'' is amended 
by striking ``32(b)(6)(B)'' and inserting ``32(f)''.
    Section 6A1.3(b) is amended by striking ``32(c)(1)'' and inserting 
``32(i)''.
    The Commentary to Sec.  6A1.3 is amended by striking the first 
paragraph in its entirety; in the third paragraph by striking ``117 S. 
Ct. 633, 635'' and inserting ``519 U.S. 148, 154''; and by striking 
``117 S. Ct. at 637'' and inserting ``519 U.S. at 157''.
    Chapter Six, Part A, Subpart 1 is amended by adding at the end the 
following:
``Sec.  6A1.4 Notice of Possible Departure (Policy Statement)
    Before the court may depart from the applicable sentencing 
guideline range on a ground not identified for departure either in the 
presentence report or in a party's prehearing submission, the court 
must give the parties reasonable notice that it is contemplating such a 
departure. The notice must specify any ground on which the court is 
contemplating a departure. Rule 32(h), Fed. R. Crim. P.

Commentary

    Background: The Federal Rules of Criminal Procedure were amended, 
effective December 1, 2002, to incorporate into Rule 32(h) the holding 
in Burns v. United States, 501 U.S. 129, 138-39 (1991). This policy 
statement parallels Rule 32(h), Fed. R. Crim. P.''.
    Chapter Six, Part B is amended in the ``Introductory Commentary'' 
by striking ``Rule 11(e)(1)'' and inserting ``Rule 11(c)''; by striking 
``These policy statements are a first step toward implementing 28 
U.S.C. 994(a)(2)(E).''; by striking ``shall'' and inserting ``will 
continue to''; [by striking ``and ultimately develop standards'' and 
all that follows through ``the Commission's work.'']; in the last 
paragraph by striking ``The present policy statements move in the 
desired direction in two ways. First, the'' and inserting ``These''; 
[by striking ``This is a reaffirmation of pre-guidelines practice.] 
Second, the policy statements'' and inserting ``The policy statements 
also''; by inserting ``continue to'' after ``Explanations will''; [and 
by striking ``and will pave the way for more detailed policy statements 
presenting substantive criteria to achieve consistency in this aspect 
of the sentencing process''.]
    Section 6B1.1 is amended by striking subsections (a), (b), and (c) 
in their entirety and inserting:
    ``(a) The parties must disclose the plea agreement in open court 
when the plea is offered, unless the court for good cause allows the 
parties to disclose the plea agreement in camera. Rule 11(c)(2), Fed. 
R. Crim. P.
    (b) To the extent the plea agreement is of the type specified in 
Rule 11(c)(1)(B), the court must advise the defendant that the 
defendant has no right to withdraw the plea if the court does not 
follow the recommendation or request. Rule 11(c)(3)(B), Fed. R. Crim. 
P.
    (c) To the extent the plea agreement is of the type specified in 
Rule 11(c)(1)(A) or (C), the court may accept the agreement, reject it, 
or defer a decision until the court has reviewed the presentence 
report. Rule 11(c)(3)(A).''.
    The Commentary to Sec.  6B1.1 is amended in the first paragraph in 
the first sentence by striking ``11(e)''

and striking the second paragraph and inserting the following:
    `` Section 6B1.1(c) deals with the timing of the court's decision 
regarding whether to accept or reject the plea agreement. Rule 
11(c)(3)(A) gives the court discretion to accept or reject the plea 
agreement immediately or defer a decision pending consideration of the 
presentence report. Given that a presentence report normally will be 
prepared, the court may defer acceptance of the plea agreement until 
the court has reviewed the presentence report.''.
    Section 6B1.3 is amended by striking ``If the plea'' and all that 
follows through ``Fed. Crim. P.'' and inserting the following:
    ``If the court rejects a plea agreement containing provisions of 
the type specified in Rule 11(c)(1)(A) or (C), the court must do the 
following on the record and in open court (or, for good cause, in 
camera):
    (a) inform the parties that the court rejects the plea agreement;
    (b) advise the defendant personally that the court is not required 
to follow the plea agreement and give the defendant an opportunity to 
withdraw the plea; and
    (c) advise the defendant personally that if the plea is not 
withdrawn, the court may dispose of the case less favorably toward the 
defendant than the plea agreement contemplated.
    Rule 11(c)(5), Fed. R. Crim. P.''.

[[Page 75375]]

    The Commentary to Sec.  6B1.3 is amended by striking 
``11(e)(4)''and inserting ``11(c)(5)''.

(H) Conforming PROTECT Act Amendments (Departures)

    The Commentary to Sec.  1B1.3 captioned ``Application Notes'' is 
amended in the fifth sentence of Note 5 by striking ``When'' and 
inserting ``In a case in which creation of risk is''; by striking 
``creation of a risk may provide a ground for imposing a sentence above 
the applicable guideline range'' and inserting ``an upward departure 
may be warranted''.
    The Commentary to Sec.  1B1.4 captioned ``Background'' is amended 
in the fifth sentence by striking ``sentencing above the guideline 
range'' and inserting ``an upward departure''.
    The Commentary to Sec.  1B1.8 captioned ``Application Notes'' is 
amended in the third sentence of Note 1 by striking ``increase the 
defendant's sentence above the applicable guideline range by upward 
departure'' and inserting ``depart upward''; and in the last sentence 
by striking ``below the applicable guideline range'' and inserting 
``downward''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 7 by striking ``sentence below the applicable guideline 
range''and inserting ``downward departure''.
    The Commentary to Sec.  2R1.1 captioned ``Application Notes'' is 
amended in Note 7 by striking ``, or even above,'' and by inserting ``, 
or an upward departure'' after ``guideline range''.
    The Commentary to Sec.  2T1.8 captioned ``Application Note'' is 
amended in Note 1 by striking ``a sentence above the guidelines'' and 
inserting ``an upward departure''.
    Chapter Two, Part T, Subpart 3 is amended in the ``Introductory 
Commentary'' by striking ``imposing a sentence above that specified in 
the guideline in this Subpart'' and inserting ``departing upward''.
    The Commentary to Sec.  3D1.3 captioned ``Application Notes'' is 
amended in Note 4 by striking ``a sentence above the guideline range'' 
and inserting ``an upward departure''.
    Section 5C1.2(a) is amended by striking ``verbatim''.
    Section 5H1.1 is amended by striking ``sentence should be outside 
the applicable guideline range'' and inserting ``departure is 
warranted''; by striking ``impose a sentence below the applicable 
guideline range when'' and inserting ``depart downward in a case in 
which''; and by inserting ``; Gambling Addiction'' after ``Abuse''.
    Section 5H1.2 is amended by striking ``sentence should be outside 
the applicable guideline range'' and inserting ``departure is 
warranted''.
    Section 5H1.3 is amended by striking ``sentence should be outside 
the applicable guideline range'' and inserting ``departure is 
warranted''.
    Section 5H1.5 is amended by striking ``sentence should be outside 
the applicable guideline range'' and inserting ``departure is 
warranted''.
    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''; by 
inserting after the first paragraph the following:
    ``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.'';
    and by striking:

    ``*Note: Section 401(b)(4) of Public Law 108-21 (the ``Protect 
Act'') directly amended Sec.  5H1.6 to add the second paragraph, 
effective April 30, 2003. The Commission incorporated this direct 
amendment in the Supplement to the 2002 Guidelines Manual but 
inadvertently omitted the second paragraph in the Federal Register 
notice of amendments dated October 21, 2003. The policy statement 
should be read as containing the second paragraph, pursuant to the 
direct amendment made by Public Law 108-21.''.

    The Commentary to Sec.  5H1.6 is amended by adding at the end the 
following:
    ``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 5H1.11 is amended by striking ``sentence should be outside 
the applicable guideline range'' and inserting ``departure is 
warranted''.
    Section 5H1.12 is amended by striking ``grounds for imposing a 
sentence outside the applicable guideline range'' and inserting ``in 
determining whether a departure is warranted''.
    Section 5K2.14 is amended by striking ``increase the sentence above 
the guideline range'' and inserting ``depart upward''.
    Section 5K2.16 is amended by inserting ``downward'' before 
``departure''; and by striking ``below the applicable guideline range 
for that offense''.
    Section 5K2.21 is amended by striking ``increase the sentence above 
the guideline range'' and inserting ``depart upward''.
    Section 5K2.22 is amended by striking ``impose a sentence below the 
applicable guideline range'' each place it place it appears and 
inserting ``depart downward''; and by striking ``imposing a sentence 
below the guidelines'' and inserting ``a downward departure''.
    Section 5K2.23 is amended by striking ``sentence below the 
applicable guideline range'' and inserting ``downward departure''.

(I) Correction of Examples in Sec.  5G1.2

    The Commentary to Sec.  5G1.2 captioned ``Application Notes'' is 
amended in Note 3(B)(iii) by striking ``2113(a) (20 year'' and 
inserting ``113(a)(3) (10 year''; in the second sentence by striking 
``400'' and inserting ``460''; by striking ``360-life'' and inserting 
``460-485''; and in the third sentence by striking ``40'' and 
inserting``100''; and by striking ``2113(a)'' and inserting 
``113(a)(3)''.

(J) Issue for Comment Regarding ``Double Counting'' Issue in Sec.  
4B1.4 (Armed Career Criminal)

    Issue for Comment: The Commission requests comment regarding 
application of the guidelines in cases in which the defendant (1) is 
convicted under 18 U.S.C. 922(g) (felon in possession); (2) is an armed 
career criminal under Sec.  4B1.4; and (3) is convicted under 18 U.S.C. 
924(c) (use of a firearm during a drug trafficking offense or crime of 
violence).
    Section 2K2.4 (Use of Firearm, Armor-Piercing Ammunition, or 
Explosive During or in Relation to Certain Crimes) provides that in 
cases in which a defendant is convicted of 18 U.S.C. 924(c) and of the 
underlying offense, the weapon enhancement in the guideline for the 
underlying offense is not to be applied. This rule is provided because 
the mandatory minimum consecutive sentence required by 18 U.S.C. 924(c) 
is sufficient to account for the possession or use of the weapon in the 
underlying offense. Section 4B1.4 (Armed Career Criminal) provides for 
an ``enhanced'' sentence (i.e., an offense level of level 34 pursuant 
to Sec.  4B1.4(b)(3)(A) and Criminal History Category VI pursuant to 
Sec.  4B1.4(c)(2)) for cases in which an armed career criminal uses or 
possesses a firearm in connection with a crime of violence or 
controlled substance offense. Unlike Sec.  2K2.4, however, Sec.  4B1.4 
does not currently contain a rule to provide an exception to 
application of the ``enhanced'' sentence in cases in which the 
defendant also is convicted under 18 U.S.C. 924(c) (or a similar 
offense carrying a ``flat'' mandatory

[[Page 75376]]

consecutive penalty e.g., 18 U.S.C. 844(h) or 18 U.S.C. 929(a)). The 
Commission requests comment regarding whether such a rule should be 
provided in Sec.  4B1.4.
    For example, should the Commission add Sec.  4B1.4 to the list of 
guidelines to which the special exception in Sec.  2K2.4 applies? 
Should the Commission also provide an upward departure note to Sec.  
4B1.4 for the few cases in which the application of the exception may 
result in a guideline range that, when combined with the mandatory 
consecutive sentence under 18 U.S.C. 844(h), 924(c), or 929(a), 
produces a total maximum penalty that is less than the maximum of the 
guideline range that would have resulted if the enhanced offense level 
and criminal history category had been applied?

Proposed Amendment 9: MANPADS and Other Destructive Devices

    Synopsis of Amendment: This amendment proposes to increase by [5]-
[13] additional levels the existing two-level enhancement in Sec.  
2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or 
Ammunition; Prohibited Transactions Involving Firearms or Ammunition) 
for cases in which the offense involved destructive devices that are 
portable rockets, missiles, or devices used for launching portable 
rockets or missiles, and by increasing the enhancement by up to [7] 
additional levels if the offense involved any other kind of destructive 
device. It also proposes to add certain attempts and conspiracies to 
the list of offenses for which the three-level reduction in Sec.  2X1.1 
(Attempt, Solicitation, or Conspiracy) is prohibited.
    As defined in 26 U.S.C. 5845(f), a ``destructive device'' means (1) 
any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C) 
rocket having a propellent charge of more than four ounces, (D) missile 
having an explosive or incendiary charge of more than one-quarter 
ounce, (E) mine, or (F) similar device; (2) any type of weapon by 
whatever name known which will, or which may be readily converted to, 
expel a projectile by the action of an explosive or other propellent, 
the barrels of which have a bore of more than one-half inch in 
diameter; or (3) any combination of parts designed or intended for use 
in converting any device into a destructive device as described above.
    In its annual submission to the Commission dated August 1, 2003, 
the Department of Justice recommended that guideline penalties be 
increased if the offense involved the use or attempted use of, or 
conspiracy to use, a kind of destructive device known as the man-
portable air defense system (MANPADS) or any similar destructive 
device. MANPADS are portable rockets and missiles that pose particular 
risks due to their portability, potential range, accuracy, and 
destructive power. This amendment addresses that concern by increasing 
the enhancement in Sec.  2K2.1(b)(3) for involvement of these types of 
destructive devices from 2 levels to [7]-[15] levels, correspondingly 
increasing the maximum cumulative offense level in that guideline from 
level 29 to level [30]-[42], and increasing the enhancement for all 
other destructive devices from two levels to up to [9] levels. An issue 
for comment follows regarding whether the increase should pertain to 
all destructive devices within the meaning of 26 U.S.C. 5845(f) or only 
to MANPADS and similar weapons, or to some other subcategory of 
destructive devices, or whether there should be a graduated increase 
for different kinds of destructive devices.
    Similarly, the Department of Justice also urged the Commission to 
increase guideline penalties for attempts and conspiracies to commit 
certain offenses if those offenses involved the use of a MANPADS or 
similar destructive device. Those offenses include 18 U.S.C. 32 
(destruction of an aircraft or aircraft facilities), 18 U.S.C. 1993 
(terrorist attacks and other acts of violence against mass 
transportation systems), and 18 U.S.C. 2332a (use of certain weapons of 
mass destruction). In response to this concern, the amendment proposes 
to amend the special instruction in Sec.  2X1.1(d) to prohibit 
application of the three-level reduction for attempts and conspiracies 
for these offenses generally, and not just in the context of the use of 
a MANPADS or similar destructive device. These offenses are comparable 
in nature to the offenses already listed in Sec.  2X1.1(d). Issues for 
comment follow regarding the appropriate Statutory Index references for 
these offenses the definition of ``destructive device.''
    Proposed Amendment:
    Section 2K2.1(b) is amended by striking subdivision (3) in its 
entirety and inserting the following:
    ``(3) If the offense involved--
    (A) a portable rocket, a missile, or a device for use in launching 
a portable rocket or a missile, increase by [7]-[15] levels; or
    (B) a destructive device other than a destructive device referred 
to in subdivision (A), increase by [2]-[9] levels.''.
    Section 2K2.1(b) is amended in the paragraph beginning ``Provided, 
that'' by striking ``29'' and inserting ``[30]-[42]''.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended in Note 11 by striking ``a two-level'' and inserting ``the 
applicable''.
    Section 2X1.1(d) is amended by striking subdivision (1) in its 
entirety and inserting the following:
    ``(1) Subsection (b) shall not apply to:
    (A) Any of the following offenses, if such offense involved, or was 
intended to promote, a federal crime of terrorism as defined in 18 
U.S.C. 2332b(g)(5):
    18 U.S.C. 81;
    18 U.S.C. 930(c);
    18 U.S.C. 1362;
    18 U.S.C. 1363;
    18 U.S.C. 1992;
    18 U.S.C. 2339A;
    18 U.S.C. 2340A;
    49 U.S.C. 46504;
    49 U.S.C. 46505; and
    49 U.S.C. 60123(b).
    (B) Any of the following offenses:
    18 U.S.C. 32;
    18 U.S.C. 1993; and
    18 U.S.C. 2332a.''.
    Issues for Comment:
    1. The Commission requests comment regarding whether the proposed 
increase in the enhancement in Sec.  2K2.1(b)(3) for involvement of a 
destructive device should pertain to all destructive devices within the 
meaning of 26 U.S.C. 5845(f) or only to man-portable air defense 
systems (MANPADS) and similar destructive devices or to some other 
subcategory of destructive devices. In addition, what is the 
appropriate extent of such an increase? Specifically, are there types 
of destructive devices other than MANPADS and similar destructive 
devices that should receive a [7]-[15] level enhancement, as is 
proposed for MANPADS and similar destructive devices? Should the extent 
of the increase vary according to the kind of destructive device 
involved? Should the limitation on the cumulative offense level of 
level 29 in Sec.  2K2.1(b) be amended if the extent of the enhancement 
in Sec.  2K2.1(b)(3) is increased, and, if so what should the 
limitation on the cumulative offense level be? Alternatively, should 
the limitation on the cumulative offense level be eliminated?
    2. The Commission also requests comment regarding whether 18 U.S.C. 
1993(a)(8), relating to attempts, threats, or conspiracies, to commit 
any of the substantive terrorist offenses in 18 U.S.C. 1993(a), should 
be referenced in Appendix A (Statutory Index) to Sec.  2A5.2 
(Interference with Flight Crew Member or Flight Attendant; Interference 
with Dispatch, Operation, or Maintenance of

[[Page 75377]]

Mass Transportation Vehicle or Ferry) rather than, or in addition to, 
Sec.  2A6.1 (Threatening or Harassing Communications).
    Similarly, the Commission requests comment regarding whether any or 
all of the substantive criminal provisions of 18 U.S.C. 32 should be 
referenced only to Sec.  2A5.2.
    3. The Commission also requests comment regarding whether there 
should be a cross reference to Sec.  2A5.2 or Sec.  2M6.1 in any 
guideline to which offenses under 18 U.S.C. 32, 1993, and 2332a are 
referenced, if the offense involved interference or attempted 
interference with a flight crew, interference or attempted interference 
with the dispatch, operation, or maintenance of a mass transportation 
system (including a ferry), or the use or attempted use of weapons of 
mass destruction.
    4. The Commission seeks comment regarding whether the ``destructive 
device'' definition at Application Note 4 of Sec.  2K2.1 (Unlawful 
Receipt, Possession, or Transportation of Firearms or Ammunition; 
Prohibited Transactions Involving Firearms or Ammunition) should be 
amended. Practitioners have commented that it is unclear whether 
certain types of firearms qualify as ``destructive devices''. Should 
the Commission clarify the definition of ``destructive device''? If so, 
what issues should be addressed?

Issue for Comment 10: Aberrant Behavior

    Issue for Comment: The Commission requests comment regarding 
whether the departure provision in Sec.  5K2.20 (Aberrant Behavior) 
should be eliminated (and departures based on characteristics described 
in Sec.  5K2.20 should be prohibited) and whether those characteristics 
instead should be incorporated into the computation of criminal history 
points under Sec.  4A1.1 (Criminal History Category). Specifically, are 
there circumstances or characteristics, currently forming the basis for 
a departure under Sec.  5K2.20, that should be treated within Sec.  
4A1.1 instead, particularly for first offenders?

Issues for Comment 11: Hazardous Materials

    Issue for Comment: In its annual submission to the Commission dated 
August 1, 2003, the Department of Justice urged the Commission to 
consider revising the guideline treatment for the illegal 
transportation of hazardous materials. According to the Department, the 
sentencing guideline applicable to hazardous materials, Sec.  2Q1.2 
(Mishandling of Hazardous or Toxic Substances or Pesticides; 
Recordkeeping, Tampering, and Falsification; Unlawfully Transporting 
Hazardous Materials in Commerce), is not adequately suited to such 
offenses because (1) such offenses are different from more typical 
pollution offenses covered by that guideline and have characteristics 
that are not addressed by that guideline; and (2) the specific offense 
characteristics in that guideline are not characteristic of such 
offenses. As a consequence, the offense levels applicable to hazardous 
materials offenses often are inadequate given the severity of the 
offense.
    Specifically, the Department stated that Sec.  2Q1.2 originally was 
intended to cover the release of toxic substances and pesticides in the 
context of ongoing, continuous, or repetitive releases into the 
environment and the failure to obtain government permits to handle 
certain materials. Offenses involving hazardous materials, on the other 
hand, often involve a one-time, catastrophic occurrence that provide a 
``target-rich'' environment for terrorists and that, because of the 
movement of these materials in commerce, could affect a large 
population or occur in a setting such as aboard an aircraft where 
corrective or preventive action is unlikely. Further aggravating the 
risks inherent in the transportation of hazardous materials is that, 
unlike other toxins, government permitting is not required.
    In light of the Department of Justice's concerns, the Commission 
requests comment regarding whether existing guidelines should be 
revised, or whether a new guideline should be created, to address more 
adequately offenses involving hazardous materials. Specifically:
    (1) How should the Commission define key terms regarding offenses 
involving the transportation of hazardous materials? For example, for 
purposes of enhanced penalties governing hazardous materials (as 
opposed to other toxic materials and pesticides) what hazardous 
materials, and/or what statutory provisions, should be covered? What 
activities constitute a ``release'' in the context of transportation of 
hazardous materials?
    What is the appropriate definition of ``environment'' in the 
context of transportation of hazardous materials?
    (2) What is an appropriate base offense level for offenses 
involving the transportation of hazardous materials?
    (3) What aggravating and/or mitigating factors particular to such 
offenses should be incorporated into the guidelines as specific offense 
characteristics? For example, should the guidelines provide 
enhancements if the offense involved any of the following:
    (A) The transportation of a hazardous material on a passenger-
carrying or other aircraft.
    (B) The transportation of a hazardous material on any passenger-
carrying mode of mass transportation.
    (C) The concealment of the hazardous material during its 
transportation, such as by misrepresentation, deception, or physical 
concealment.
    (D) The release of a hazardous material.
    (E) Disruption of, or damage to, critical infrastructure.
    (F) The release of a hazardous material resulting in damage to the 
environment, or to public or private property.
    (G) An emergency response and/or the evacuation of a community or 
part thereof.
    (H) Repetition of the offense.
    (I) The substantial likelihood of death or serious injury.
    (J) Actual serious bodily injury or death.
    (K) A substantial expenditure for remediation.
    (L) The failure to provide, submit, file, or retain required 
information about a hazardous material, including the failure to notify 
for certain hazardous material incidents under 49 CFR 171.1.
    (M) Financial gain to the defendant or the financial loss to 
others, excluding government costs of cleanup.
    (N) The transportation of radioactive or explosive material.
    (O) A terrorist motive.
    (P) A controlled substance manufacturing or trafficking offense.
    (Q) The failure to properly train transporters of hazardous 
materials (see, e.g., 49 U.S.C. 5107).
    (R) The procurement of a license through fraudulent means.
    What should be the extent of any specific characteristic added to 
the guidelines for these enhancements, including gradation for 
seriousness of the specific offense characteristic involved?
    (4) If a new guideline were to be promulgated covering only 
offenses involving the transportation of hazardous materials:
    (A) What interaction should the new guideline covering hazardous 
materials transportation offenses have with the guidelines in Chapter 
Eight (Sentencing of Organizations)? For example, should a separate 
compliance program be established for persons involved in the 
transportation of hazardous materials, or should additional factors be 
added to the compliance requirements in Chapter Eight?

[[Page 75378]]

    (B) What cross references, if any, should be included with this 
guideline?
    (C) What impact, if any, should repeat civil penalties or 
regulatory infractions have on culpability under this proposed 
guideline?
    (D) Under Chapter Three, Part D (Multiple Counts), what would be 
the appropriate grouping of counts involving the transportation of 
hazardous materials under this new guideline and counts involving 
environmental offenses covered under other existing guidelines, 
particularly Sec.  2Q1.2?

[FR Doc. 03-31755 Filed 12-29-03; 8:45 am]
BILLING CODE 2211-01-P