[Federal Register Volume 69, Number 9 (Wednesday, January 14, 2004)]
[Notices]
[Pages 2169-2173]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-806]


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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. Notice of public hearing.

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SUMMARY: Pursuant to section 994(a), (o), and (p) of title 28, United 
States Code, and section 4(b) of the Controlling the Assault of Non-
Solicited Pornography and Marketing Act of 2003 (the ``CAN-SPAM Act of 
2003''), Public Law 108-187, 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

[[Page 2170]]

are as follows: (1) Proposed amendment to Sec. Sec.  2L1.1 (Smuggling, 
Transporting, or Harboring an Unlawful Alien) and 2L2.2 (Fraudulently 
Acquiring Documents Relating to Naturalization, Citizenship, or Legal 
Resident Status for Own Use; False Personation or Fraudulent Marriage 
by Alien to Evade Immigration Law; Fraudulently Acquiring or Improperly 
Using a United States Passport) pertaining to certain immigration 
offense conduct, and related issues for comment; (2) proposed amendment 
to Sec.  2D1.1 (Unlawful Manufacturing, Importing, Exporting, or 
Trafficking (Including Possession with Intent to Commit These 
Offenses); Attempt or Conspiracy) that modifies the proposed amendment 
pertaining to controlled substance analogues published in the Federal 
Register on December 30, 2003 (see 68 FR 75339), by including a rule 
for calculating the base offense level in cases in which a controlled 
substance is not referenced in Sec.  2D1.1; and (3) an issue for 
comment regarding the implementation of the Controlling the Assault of 
Non-Solicited Pornography and Marketing Act of 2003 (``CAN-SPAM Act of 
2003''), Public Law 108-187.

DATES: (1) Proposed Amendments and Issues for Comment.--Written public 
comment regarding the proposed amendment on controlled substance 
analogues should be received by the Commission not later than March 1, 
2004. Written public comment regarding (A) the proposed amendment on 
immigration offenses, and related issues for comment; and (B) the 
issues for comment regarding the implementation of the CAN-SPAM Act of 
2003, should be received by the Commission not later than March 15, 
2004.
    (2) Public Hearing.--The Commission has scheduled a public hearing 
on its proposed amendments for March 17, 2004, at the Thurgood Marshall 
Federal Judiciary Building, One Columbus Circle, NE., Washington, DC 
20002-8002. A person who desires to testify at the public hearing 
should notify Michael Courlander, Public Affairs Officer, at (202) 502-
4590, not later than March 1, 2004. Written testimony for the public 
hearing must be received by the Commission not later than March 1, 
2004. Timely submission of written testimony is a requirement for 
testifying at the public hearing. The Commission requests that, to the 
extent practicable, commentators submit an electronic version of the 
comment and of the testimony for the public hearing. The Commission 
also reserves the right to select persons to testify at any of the 
hearings and to structure the hearings as the Commission considers 
appropriate and the schedule permits. Further information regarding the 
public hearing, including the time of the hearing, will be provided by 
the Commission on its Web site at http://www.ussc.gov.

ADDRESS: 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 http://www.ussc.gov.

    Authority: 28 U.S.C. 994(a), (o), (p), (x); section 4(b) of the 
CAN-SPAM Act of 2003, Pub. L. 108-187; USSC Rules of Practice and 
Procedure, Rule 4.4.

Diana E. Murphy,
Chair.

1. Proposed Amendment: Immigration Offenses

    Synopsis of Proposed Amendment: This proposed amendment addresses 
issues involving immigration offenses. Specifically, the proposed 
amendment makes changes to Sec. Sec.  2L1.1 (Smuggling, Transporting, 
or Harboring an Unlawful Alien) and 2L2.2 (Fraudulently Acquiring 
Documents Relating to Naturalization, Citizenship, or Legal Resident 
Status for Own Use; False Personation or Fraudulent Marriage by Alien 
to Evade Immigration Law; Fraudulently Acquiring or Improperly Using a 
United States Passport). Two issues for comment also are contained in 
this proposed amendment.

(1) Sec.  2L1.1 (Smuggling, Transporting, or Harboring an Unlawful 
Alien)

(A) Entering the United States To Engage in Subversive Activity
    The proposed amendment provides alternative enhancements at Sec.  
2L1.2(b)(4)(A) and (B) if the defendant smuggled, harbored or 
transported an alien knowing that the alien intended to enter the 
United States to engage in (1) a crime of violence or a controlled 
substance offense [; or (2) terrorist activity]. The proposal provides 
a [2-] [4-][6-] level enhancement if the alien intended to commit a 
crime of violence or a controlled substance offense[, and a [12-] level 
enhancement, and a minimum offense level of [32], if the alien intended 
to engage in ``terrorist activity'' as defined in 8 U.S.C. 1182]. An 
increase equivalent to the terrorism adjustment at Sec.  3A1.4 
(Terrorism) was chosen to reflect the seriousness of aiding the 
importation of terrorists. An issue for comment follows regarding the 
appropriate interaction between the proposed terrorism enhancement and 
the terrorism adjustment at Sec.  3A1.4.

[[Page 2171]]

(B) Offenses Involving Death
    The amendment proposes three significant changes to the guideline 
in cases in which death occurred. First, the proposed amendment removes 
the increase of eight levels ``if death resulted'' from the current 
specific offense characteristic in Sec.  2L1.1(b)(6) addressing bodily 
injury and places this increase in a stand alone specific offense 
characteristic in Sec.  2L1.1(b)(8). This new specific offense 
characteristic provides an increase of [8], [10], or [12] levels and a 
minimum offense level of level [25-30].
    Second, the cross reference at Sec.  2L1.1(c) is expanded to cover 
deaths other than murder, if the resulting offense level is greater 
than the offense level determined under Sec.  2L1.1. Third, the 
proposed amendment provides a new special instruction at Sec.  2L1.1(d) 
to address cases involving multiple deaths. If applicable, the 
guideline will be applied as if the case involved a separate count of 
conviction for each death.
(C) Number of Illegal Aliens
    The proposed amendment provides additional offense level increases 
to the table in Sec.  2L1.1(b)(2) relating to the number of aliens 
involved in the offense. An increase of [11][12] levels would be 
applicable under the proposal if the offense involved 200 to 299 
aliens, and an increase of [13-18] levels would be applicable if the 
offense involved 300 or more aliens. The current upward departure 
provision in Application Note 4 has been modified to reflect this 
proposed change.

(2) Immigration Documentation Fraud

    The proposed amendment makes several changes to Sec.  2L2.2 
(Fraudulently Acquiring Documents Relating to Naturalization, 
Citizenship, or Legal Resident Status for Own Use; False Personation or 
Fraudulent Marriage by Alien to Evade Immigration Law; Fraudulently 
Acquiring or Improperly Using a United States Passport). First, the 
proposed amendment increases the base offense level in Sec.  2L2.2(a) 
from level 8 to level [8-12]. Second, the proposed amendment increases 
by two levels the current enhancements in Sec. Sec.  2L2.2(b)(1) 
(regarding unlawful aliens who have been deported on one or more 
occasions) and 2L2.2(b)(2) (regarding defendants who commit the instant 
offense after sustaining a felony conviction for an immigration and 
naturalization offense). Third, the proposed amendment provides an [4-
10]-level enhancement in Sec.  2L2.2(b)(3) if the defendant was a 
fugitive wanted for a felony offense in the United States [or any other 
country]. An issue for comment follows the proposed amendment regarding 
whether that enhancement should include fugitive status from a country 
other than the United States. [Finally, the proposed amendment provides 
an [2-8]-level enhancement at Sec.  2L2.2(b)(4) if the defendant 
fraudulently obtained or used a United States passport.]

Proposed Amendment

    Section 2L1.1(b)(2) is amended by striking the following:
    ``(C) 100 or more and 9.'',
    and inserting the following:
    ``(C) 100-199 add 9
    [(D) 200-299 add [11][12]
    (E) 300 or more add [13][15][18].]''.
    Section 2L1.1(b) is amended by redesignating subdivisions (4), (5) 
and (6) as subdivisions (5), (6), and (7), respectively; and by 
inserting after subdivision (3) the following:
    ``[(4) If the defendant smuggled, transported, or harbored an alien 
knowing that the alien intended to enter the United States--
    (A) to engage in a crime of violence or controlled substance 
offense, increase by [2-6] levels; or
    (B) to engage in terrorist activity, increase by [12] levels, but 
if the resulting offense level is less than level [32], increase to 
level [32].]''.
    Section 2L1.1(b)(7), as redesignated by this amendment, is amended 
by striking ``died or''; by striking ``Death or''; by redesignating 
subdivisions (1), (2), and (3) as subdivisions (A), (B) and (C), 
respectively; by inserting a period after ``add 6 levels''; and by 
striking subdivision (4).
    Section 2L1.1(b) is amended by adding at the end the following:
    ``(8) If the offense resulted in the death of any person, increase 
by [8-12] levels, but if the resulting offense level is less than level 
[25-30], increase to level [25-30].
    Section 2L1.1(c) is amended by striking ``If any person'' and all 
that follows through ``Subpart 1.'' and inserting the following:
    ``(1) If death resulted, apply the appropriate homicide guideline 
from Chapter Two, Part A, Subpart 1, if the resulting offense level is 
greater than that determined above.''.
    Section 2L1.1 is amended by adding at the end the following:
    ``(d) Special Instruction
    (1) If the offense involved the death of more than one alien, 
Chapter Three, Part D (Multiple Counts) shall be applied as if the 
death of each alien had been contained in a separate count of 
conviction.''.
    The Commentary to Sec.  2L1.1 captioned ``Application Notes'' is 
amended in Note 1 by striking ``For purposes of this guideline--'' and 
inserting ``Definitions.--For purposes of this guideline:''; and by 
striking `` `Number of unlawful aliens'' and all that follows through 
``include the defendant.''.
    The Commentary to Sec.  2L1.1 captioned ``Application Notes'' is 
amended in Note 2 by inserting ``Application of Aggravating Role 
Adjustment.--'' before ``For purposes of''; and by striking Note 3 and 
inserting the following:
    ``3. Application of Subsection (b)(2).--For purposes of subsection 
(b)(2), the number of unlawful aliens smuggled, transported, or 
harbored does not include the defendant.''.
    The Commentary to Sec.  2L1.1 captioned ``Application Notes'' is 
amended in Note 4 by inserting ``Upward Departure Provision.--'' before 
``If''; and by striking ``100'' and inserting ``300''.
    The Commentary to Sec.  2L1.1 captioned ``Application Notes'' is 
amended in Note 5 by inserting ``Prior Convictions Under Subsection 
(b)(3).--'' before ``Prior''.
    The Commentary to Sec.  2L1.1 captioned ``Application Notes'' is 
amended by redesignating Note 6 as Note 7; and by inserting after Note 
5 the following:
    ``[6. Application of Subsection (b)(4).--
    (A) Definitions of Terms Used in Subdivision (b)(4)(A).--For 
purposes of subdivision (b)(4)(A):
    `Controlled substance offense' has the meaning given that term in 
Sec.  4B1.2 (Definitions of Terms Used in Section 4B1.1).
    `Crime of violence' has the meaning given that term in Sec.  4B1.2.
    (B) Definitions of Terms Used in Subdivision (b)(4)(B).--For 
purposes of subdivision (b)(4)(B):
    `Engage in terrorist activity' has the meaning given that term in 8 
U.S.C. Sec.  1182(a)(3)(B)(iv).
    `Terrorist activity' has the meaning given that term in 8 U.S.C. 
Sec.  1182(a)(3)(B)(iii).
    (C) Inapplicability of Chapter Three Adjustment.--If subdivision 
(b)(4)(B) applies, do not apply the adjustment from Sec.  3A1.4 
(Terrorism).]''.
    The Commentary to Sec.  2L1.1 captioned ``Application Notes'' is 
amended in Note 7, as redesignated by this amendment, by inserting 
``Application of Subsection (b)(6).--before ``Reckless''; by striking 
``(b)(5)'' each place it appears, and inserting ``(b)(6)''; and by 
striking ``(b)(4)'' and inserting ``(b)(5)''.
    The Commentary to Sec.  2L1.1 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``8. Special Instruction at Subsection (d)(1).--Subsection (d)(1) 
directs that if

[[Page 2172]]

the relevant conduct of an offense of conviction includes the death of 
more than one alien, whether specifically cited in the count of 
conviction or not, each such death shall be treated as if contained in 
a separate count of conviction. For the purposes of Chapter Three, Part 
D (Multiple Counts), multiple counts involving the death of more than 
one alien are not to be grouped together under Sec.  3D1.2 (Groups of 
Closely Related Counts).''.
    Section 2L2.2(a) is amended by striking ``8'' and inserting ``[8-
12]''.
    Section 2L2.2(b) is amended in subdivision (1) by striking ``2 
levels'' and inserting ``[4 levels]''; and in subdivision (2) by 
striking ``offense, increase by 2 levels'' and inserting ``offense, 
increase by [4 levels]'', and by striking ``prosecution, increase by 4 
levels'' and inserting ``prosecution, increase by [6 levels]''.
    Section 2L2.2(b) is amended by adding at the end the following:
    ``(3) If the defendant was a fugitive wanted for a felony offense 
in the United States, [or any other country,] increase by [4-10] 
levels.
    [(4) If the defendant fraudulently obtained or used a United States 
passport, increase by [2-8] levels.]''.

Issues for Comment

    (1) The Commission requests comment on the proposed enhancement in 
Sec.  2L1.1(b)(4)(B), which provides a significant increase and minimum 
offense level if the defendant smuggled, transported, or harbored an 
alien knowing that the alien intended to enter the United States to 
engage in terrorist activity. Specifically, how should this enhancement 
interact with the terrorism adjustment at Sec.  3A1.4 (Terrorism), as 
promulgated in response to section 730 of the Antiterrorism and 
Effective Death Penalty Act of 1996, Public Law 104-132, and amended in 
response to the PATRIOT Act, Public Law 107-56? Should the proposed 
enhancement instead more closely track the provisions of 8 U.S.C. 1327, 
which prohibit, among other things, the smuggling, transporting, or 
harboring of an alien who is inadmissible under 8 U.S.C. 1182(a)(3)(B) 
(because that alien has engaged in terrorist activity, as defined in 
such provision)? Alternatively, should commentary be added inviting use 
of the upward departure provision in Application Note 4 of Sec.  3A1.4 
if the defendant smuggled, transported, or harbored an alien knowing 
the alien intended or was likely to engage in terrorist activity?
    (2) The Commission specifically requests comment regarding whether 
the proposed enhancement in subsection Sec.  2L2.2(b)(3) should include 
fugitive status in a country other than the United States. Are there 
application problems that may arise as a result of such inclusion?

2. Proposed Amendment: Analogues and Drugs Not Listed in Sec.  2D1.1

    Synopsis of Proposed Amendment: This proposed amendment revises a 
proposed amendment published in the Federal Register on December 30, 
2003 (see 68 F.R. 75339), pertaining to controlled substance analogues. 
In addition to the proposed rule regarding analogues, the proposed 
amendment provides an application note regarding controlled substances 
not currently referenced in Sec.  2D1.1 (Unlawful Manufacturing, 
Importing, Exporting, or Trafficking (Including Possession with Intent 
to Commit These Offenses); Attempt or Conspiracy). The note directs the 
court to use the marihuana equivalency of the closest analogue of the 
controlled substance in order to determine the base offense level.

Proposed Amendment

    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 5 by inserting ``Analogues and Controlled Substances 
Not Referenced in this Guideline.--'' before ``Any reference''; by 
striking ``and'' after ``includes all salts, isomers,''; by inserting 
``and, except as otherwise provided, any analogue of that controlled 
substance'' after ``all salts of isomers''; and by adding at the end 
the following:
    ``In the case of a controlled substance that is not referenced in 
either the Drug Quantity Table or the Drug Equivalency Tables of 
Application Note 10, determine the base offense level using the 
marihuana equivalency of the closest analogue of that controlled 
substance.
    For purposes of this guideline ``analogue'' has the meaning given 
``controlled substance analogue'' in 21 U.S.C. 802(32).''.

3. Issues for Comment: Implementation of the CAN-SPAM Act of 2003

    Section 4(b)(1) of the Controlling the Assault of Non-Solicited 
Pornography and Marketing Act of 2003 (the ``CAN-SPAM Act of 2003''), 
Public Law 108-187, directs the Commission to review and as appropriate 
amend the sentencing guidelines and policy statements to establish 
appropriate penalties for violations of 18 U.S.C. 1037 and other 
offenses that may be facilitated by the sending of a large volume of 
unsolicited e-mail.
    Section 4(b)(2) of the CAN-SPAM Act of 2003 further directs the 
Commission to consider providing sentencing enhancements for--
    (A) Defendants convicted under 18 U.S.C. 1037 who--
    (I) Obtained e-mail addresses through improper means, including the 
harvesting of e-mail addresses from the users of a Web site, 
proprietary service, or other online public forum without authorization 
and the random generating of e-mail addresses by computer; or
    (ii) knew that the commercial e-mail messages involved in the 
offense contained or advertised an internet domain for which the 
registrant of the domain had provided false registration information; 
and
    (B) Defendants convicted of other offenses, including fraud, 
identity theft, obscenity, child pornography, and the sexual 
exploitation of children, if such offenses involved the sending of 
large quantities of e-mail.
    The Commission requests comment regarding the most appropriate 
amendments that might be made to the guidelines to implement the 
directives in section 4(b) of the CAN-SPAM Act of 2003. Specifically, 
the Commission requests comment on the following:
    (1) What are the appropriate guideline penalties for a defendant 
convicted under 18 U.S.C. 1037? Section 4(a) of the CAN-SPAM Act of 
2003 created the new offense at 18 U.S.C. 1037, which makes it unlawful 
for any person, in or affecting interstate or foreign commerce, to 
knowingly:
    (a)(1) access a protected computer without authorization, and 
intentionally initiate the transmission of multiple commercial 
electronic mail messages from or through such computer;
    (a)(2) Use a protected computer to relay or retransmit multiple 
commercial electronic mail messages, with the intent to deceive or 
mislead recipients, or any Internet access service, as to the origin of 
such messages;
    (a)(3) materially falsify header information in multiple commercial 
electronic messages and intentionally initiate the transmission of such 
messages;
    (a)(4) register, using information that materially falsifies the 
identity of the actual registrant, for five or more electronic mail 
accounts or online user accounts or two or more domain names, and 
intentionally initiate the transmission of multiple commercial 
electronic mail messages from any combination of such accounts or 
domain names; or
    (a)(5) falsely represent oneself to be the registrant or the 
legitimate successor

[[Page 2173]]

in interest to the registrant of five or more Internet Protocol 
addresses, and intentionally initiate the transmission of multiple 
commercial electronic mail messages from such addresses.
    The criminal penalties for a violation of 18 U.S.C. 1037 are as 
follows:
    (b)(1) Imprisonment up to five years and/or a fine if--
    (A) the offense is committed in furtherance of any other federal or 
State felony; or
    (B) the defendant has previously been convicted under this section 
[18 U.S.C. 1037], under 18 U.S.C. 1030, or under any State law for 
sending multiple commercial e-mail messages or unauthorized access to a 
computer system.
    (b)(2) Imprisonment up to three years and/or a fine if--
    (A) the offense is under subsection (a)(1) (i.e., using without 
authorization a protected computer to send multiple commercial e-mail 
messages);
    (B) the offense is under subsection (a)(4) (i.e., registering by 
false identification to e-mail accounts, online user accounts, or 
domain names) if the offense involved 20 or more falsified e-mail or 
online user account registrations or 10 or more falsified domain name 
registrations;
    (C) the volume of e-mail messages transmitted in furtherance of the 
offense exceeded 2,500 during any 24-hour period, 25,000 during any 30-
day period, or 250,000 during any 1-year period;
    (D) the offense caused a loss to one or more persons of $5,000 or 
more during any one-year period;
    (E) the defendant obtained as a result of the offense conduct 
anything of value of $5,000 or more during any one-year period; or
    (F) the defendant acted in concert with three or more other persons 
and was an organizer or leader with respect to the others.
    (b)(3) Imprisonment up to one year and/or a fine for any other 
violation of the statute.
    Should the new offense(s) be referenced in Appendix A (Statutory 
Index) to Sec. Sec.  2B1.1 (Fraud, Theft, and Property Destruction), 
and 2B2.3 (Trespass), and/or to some other guideline(s)? What is the 
appropriate base offense level for the new offense(s)? Should the base 
offense level vary depending on the seriousness of the offense (for 
example, should the base offense level for a regulatory violation under 
18 U.S.C. 1037 be the same as the base offense level for a more serious 
violation under that statute)?
    If 18 U.S.C. 1037 is referenced to Sec.  2B1.1, should commentary 
be added to that guideline that ensures application of the multiple 
victim enhancement at Sec.  2B1.1(b)(2)(A)(I) or the mass marketing 
enhancement at Sec.  2B1.1(b)(2)(A)(ii) to a defendant convicted of 18 
U.S.C. Sec.  1037? Should a defendant convicted under 18 U.S.C. 1037 
receive an enhancement under Sec.  2B1.1(b)(2)(A)(I) or (ii) based on a 
threshold quantity of email messages involved in the offense, and if 
so, what is that threshold quantity?
    Are there circumstances under which an offense under 18 U.S.C. 1037 
could be considered to involve sophisticated means, and if so, would it 
be appropriate to add commentary to Sec.  2B1.1 to invite application 
of the enhancement for sophisticated means at Sec.  2B1.1(b)(8) under 
such circumstances? Alternatively, would it be appropriate to add 
commentary discouraging application of the enhancement for 
sophisticated means in certain circumstances and, if so, what would 
those circumstances be?
    Consistent with the directive in section 4(b)(2) of the CAN-SPAM 
Act of 2003, should Sec.  2B1.1 contain an enhancement for defendants 
convicted under 18 U.S.C. 1037 who (I) obtain e-mail addresses through 
improper means, including the harvesting of e-mail addresses from the 
users of a Web site, proprietary service, or other online public forum 
without authorization and the random generating of e-mail addresses by 
computer; or (ii) knew that the commercial e-mail messages involved in 
the offense contained or advertised an internet domain for which the 
registrant of the domain had provided false registration information?
    (2) What are the appropriate guideline penalties for offenses other 
than 18 U.S.C. 1037 (such as those specified by section 4(b)(2) of the 
CAN-SPAM Act of 2003, i.e., offenses involving fraud, identity theft, 
obscenity, child pornography, and the sexual exploitation of children) 
that may be facilitated by the sending of a large volume of unsolicited 
e-mail?
    Specifically, should the Commission consider providing an 
additional enhancement for the sending of a large volume of unsolicited 
email in any of the following: Sec.  2B1.1 (covering fraud generally 
and identity theft), the guidelines in Chapter Two, Part G, Subpart 2, 
covering child pornography and the sexual exploitation of children, and 
the guidelines in Chapter Two, Part G, Subpart 3, covering obscenity? 
Alternatively, should the Commission amend existing enhancements, or 
the commentary pertaining thereto, in any of these guidelines to ensure 
application of those enhancements for the sending of a large volume of 
unsolicited email? For example, should the Commission amend the 
enhancements, or the commentary pertaining to the enhancements, for the 
use of a computer in the child pornography guidelines, Sec. Sec.  
2G2.1, 2G2.2, and 2G2.4, to ensure that those enhancements apply to the 
sending of a large volume of unsolicited email?
    What constitutes a ``large volume of unsolicited email''?
    (3) Section 5(d)(1) of the CAN-SPAM Act of 2003 makes it unlawful 
for a person to initiate in or affect interstate commerce by 
transmitting, to a protected computer, any commercial electronic email 
message that includes sexually oriented material and--
    (A) fail to include in the subject heading for the electronic mail 
message the marks or notices prescribed by the [Federal Trade 
Commission] under this subsection; or
    (B) fail to provide that the matter in the message that is 
initially viewable to the recipient, when the message is opened by any 
recipient and absent any further actions by the recipient, includes 
only--
    (I) to the extent required or authorized pursuant to paragraph (2) 
[i.e., the recipient has given prior affirmative assent to receipt of 
the message], any such marks or notices;
    (ii) the information required to be included in the message 
pursuant to section 5(a) of the CAN-SPAM Act of 2003; and
    (iii) instructions on how to access, or a mechanism to access, the 
sexually oriented material.
    The criminal penalty for a violation of section 5(d)(1) of the CAN-
SPAM Act of 2003 is a fine or imprisonment for not more than five 
years, or both.
    The Commission requests comment on how it should incorporate this 
new offense into the guidelines. Should the Commission reference this 
offense in Appendix A to Sec.  2G2.2, the guideline covering the 
transmission of child pornography, and/or Sec.  2G3.1, the guideline 
covering the transmission of obscene matter? Are there enhancements 
that should be added to either of these guidelines to cover such 
conduct adequately?

[FR Doc. 04-806 Filed 1-13-04; 8:45 am]
BILLING CODE 2210-40-P