[Federal Register Volume 69, Number 97 (Wednesday, May 19, 2004)]
[Notices]
[Pages 28994-29028]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-10990]



[[Page 28993]]

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Part II





United States Sentencing Commission





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Sentencing Guidelines for United States Courts; Notice

  Federal Register / Vol. 69, No. 97 / Wednesday, May 19, 2004 / 
Notices  

[[Page 28994]]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of submission to Congress of amendments to the 
sentencing guidelines effective November 1, 2004.

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SUMMARY: Pursuant to its authority under 28 U.S.C. Sec.  994(p), the 
Commission has promulgated amendments to the sentencing guidelines, 
policy statements, commentary, and statutory index. This notice sets 
forth the amendments and the reason for each amendment.

DATES: The Commission has specified an effective date of November 1, 
2004, for the amendments set forth in this notice.

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs 
Officer, (202) 502-4590. The amendments set forth in this notice also 
may be accessed through the Commission's Web site at http://www.ussc.gov.

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is 
an independent agency in the judicial branch of the United States 
Government. The Commission promulgates sentencing guidelines and policy 
statements for federal sentencing courts pursuant to 28 U.S.C. Sec.  
994(a). The Commission also periodically reviews and revises previously 
promulgated guidelines pursuant to 28 U.S.C. Sec.  994(o) and generally 
submits guideline amendments to Congress pursuant to 28 U.S.C. Sec.  
994(p) not later than the first day of May each year. Absent action of 
Congress to the contrary, submitted amendments become effective by 
operation of law on the date specified by the Commission (generally 
November 1 of the year in which the amendments are submitted to 
Congress).
    Notice of proposed amendments was published in the Federal Register 
on December 30, 2003 (see 68 FR 75339), and January 14, 2004 (see 69 FR 
2169). The Commission held a public hearing on the proposed amendments 
in Washington, DC, on March 17, 2004. After a review of hearing 
testimony and additional public comment, the Commission promulgated the 
amendments set forth in this notice. On April 30, 2004, the Commission 
submitted these amendments to Congress and specified an effective date 
of November 1, 2004.

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

John R. Steer,
Vice Chair.
    1. Amendment: The Commentary to Sec.  2A1.1 captioned ``Application 
Notes'' is amended by striking Notes 1 and 2 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) Offenses Involving Premeditated Killing.--In the case of 
premeditated killing, life imprisonment is the appropriate sentence if 
a sentence of death is not imposed. A downward departure would not be 
appropriate in such a case. 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).
    (B) Felony Murder.--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 
minimum guideline sentence provided for second degree murder 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.
    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. Sec.  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 
``38''.
    Section 2A1.2 is amended by striking the commentary captioned 
``Background'' 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 
``29''.
    Section 2A1.3 is amended by striking the commentary captioned 
``Background''.
    Section 2A1.4(a) is amended in subdivision (1) by striking 
``conduct was criminally negligent'' and inserting ``offense involved 
criminally negligent conduct''; and by striking subdivision (2) and 
inserting the following:
    ``(2) (Apply the greater):
    (A) 18, if the offense involved reckless conduct; or
    (B) 22, 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''; 
and by striking Notes 1 and 2 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. Sec.  
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

[[Page 28995]]

a reasonable person would exercise in such a situation. `Reckless' 
includes all, or nearly all, convictions for involuntary manslaughter 
under 18 U.S.C. Sec.  1112. A homicide resulting from driving a means 
of transportation, 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 
``33''.
    Section 2A2.1(a) is amended in subdivision (1) by striking ``28'' 
and inserting ``33''; and in subdivision (2) by striking ``22'' and 
inserting ``27''.
    Section 2A2.1(b)(1) is amended by striking ``(A) If'' and inserting 
``If (A)''; and by striking ``if'' each place it appears.
    The Commentary to Sec.  2A2.1 captioned ``Application Notes'' is 
amended by striking Notes 1 through 3 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. Sec.  1111.
    `Permanent or life-threatening bodily injury' and `serious bodily 
injury' have the meaning given those terms in Application Note 1 of the 
Commentary to Sec.  1B1.1 (Application Instructions).
    2. Upward Departure Provision.--If the offense created a 
substantial risk of death or serious bodily injury to more than one 
person, an upward departure may be warranted.''.
    Section 2A2.2(a) is amended by striking ``15'' and inserting 
``14''.
    Section 2A2.2(b)(2) is amended by striking ``(A) If'' and inserting 
``If (A)''; and by striking ``if'' each place it appears.
    Section 2A2.2(b)(3) is amended in subdivision (A) by striking ``2'' 
and inserting ``3''; in subdivision (B) by striking ``4'' and inserting 
``5''; in subdivision (C) by striking ``6'' and inserting ``7''; in 
subdivision (D) by striking ``3'' and inserting ``4''; and in 
subdivision (E) by striking ``5'' and inserting ``6''.
    Section 2A2.2.(b)(3) is amended by striking ``Provided, however,'' 
and all that follows through ``not exceed 9 levels.'' and inserting the 
following:
    ``However, the cumulative adjustments from application of 
subdivisions (2) and (3) shall not exceed 10 levels.''.
    Section 2A2.2(b) is amended by adding at the end the following:
    ``(6) If the defendant was convicted under 18 U.S.C. Sec.  111(b) 
or Sec.  115, increase by 2 levels.''.
    The Commentary to Sec.  2A2.2 captioned ``Application Notes'' is 
amended by striking Note 2 and all that follows through ``For purposes 
of subsection (b)(1),'' and inserting the following:
    ``2. Application of Subsection (b)(1).--For purposes of subsection 
(b)(1),'';

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.--If subsection (b)(6) 
applies, Sec.  3A1.2 (Official Victim) also shall apply.''.
    The Commentary to Sec.  2A2.2 captioned ``Background'' is amended 
by adding at the end the following:
    ``Subsection (b)(6) implements the directive to the Commission in 
subsection 11008(e) of the 21st Century Department of Justice 
Appropriations Act (the `Act'), Public Law 107-273. The enhancement in 
subsection (b)(6) is cumulative to the adjustment in Sec.  3A1.2 
(Official Victim) in order to address adequately the directive in 
section 11008(e)(2)(D) of the Act, which provides that the Commission 
shall consider `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' 18 U.S.C. Sec. Sec.  111 and 115.''.
    Section 2A2.3(a) is amended in subdivision (1) by striking ``6'' 
and inserting ``7'', and by striking ``conduct'' and inserting 
``offense''; and in subdivision (2) by striking ``3'' and inserting 
``4''.
    Section 2A2.3(b)(1) is amended by inserting ``(A) the victim 
sustained bodily injury, increase by 2 levels; or (B)'' after ``If''.
    Section 2A2.3 is amended by adding at the end the following:
    ``(c) Cross Reference
    (1) If the conduct constituted aggravated assault, apply Sec.  
2A2.2 (Aggravated Assault).''.
    The Commentary to Sec.  2A2.3 captioned ``Application Notes'' is 
amended by striking Notes 1 through 3 and inserting the following:
    ``1. Definitions.--For purposes of this guideline:
    `Bodily injury', `dangerous weapon', and `firearm' have the meaning 
given those terms in Application Note 1 of the Commentary to Sec.  
1B1.1 (Application Instructions).
    `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. Sec.  113(b)(1).
    2. Application of Subsection (b)(1).--Conduct that forms the basis 
for application of subsection (a)(1) also may form the basis for 
application of the enhancement in subsection (b)(1)(A) or (B).''.
    Section 2A2.4(a) is amended by striking ``6'' and inserting ``10''.
    Section 2A2.4(b) is amended by striking ``Characteristic'' and 
inserting ``Characteristics''; by striking in subdivision (1) ``If the 
conduct involved physical contact, or if'' and inserting ``If (A) the 
offense involved physical contact; or (B)''; 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 and inserting the following:
    ``1. Definitions.--For purposes of this guideline, `bodily injury', 
`dangerous weapon', and `firearm' have the meaning given those terms in 
Application Note 1 of 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). 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. Sec.  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 Sec.  2A2.4 captioned ``Application Notes'' is 
amended in Note 3 by inserting ``Upward Departure Provision.--'' before 
``The base''.
    The Commentary to Sec.  2A2.4 captioned ``Background'' is amended 
by striking the last sentence.

[[Page 28996]]

    Section 3A1.2 is amended to read as follows:
    ``Sec.  3A1.2. Official Victim
    (Apply the greatest):
    (a) If (1) the victim was (A) a government officer or employee; (B) 
a former government officer or employee; or (C) a member of the 
immediate family of a person described in subdivision (A) or (B); and 
(2) the offense of conviction was motivated by such status, increase by 
3 levels.
    (b) If subsection (a)(1) and (2) apply, and the applicable Chapter 
Two guideline is from Chapter Two, Part A (Offenses Against the 
Person), increase by 6 levels.
    (c) If, in a manner creating a substantial risk of serious bodily 
injury, the defendant or a person for whose conduct the defendant is 
otherwise accountable--
    (1) 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
    (2) 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,

increase by 6 levels.''.

    The Commentary to Sec.  3A1.2 captioned ``Application Notes'' is 
amended in Note 2 by striking the second sentence; and by striking in 
the third sentence ``, Part A,''.
    The Commentary to Sec.  3A1.2 captioned ``Application Notes'' is 
amended in Note 3 by striking ``Subsection (a)'' and inserting 
``Subsections (a) and (b)''; and by striking ``in subsection (a)'' and 
inserting ``, for purposes of subsections (a) and (b),''.
    The Commentary to Sec.  3A1.2 captioned ``Application Notes'' is 
amended in Note 4 by striking ``Subsection (b)'' each place it appears 
and inserting ``Subsection (c)''; by striking ``subsection (b)'' each 
place it appears and inserting ``subsection (c)''; and by striking 
``and control'' each place it appears and inserting ``or control''.
    The Commentary to Sec.  3A1.2 captioned ``Application Notes'' is 
amended by striking Note 5 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.''.
    Reason for Amendment: This amendment increases the base offense 
levels for the homicide and manslaughter guidelines to address 
longstanding proportionality concerns and new proportionality issues 
prompted by changes to other Chapter Two guidelines pursuant to the 
Prosecutorial Remedies and Other Tools to end the Exploitation of 
Children Today Act of 2003, Pub. L. 108-21 (the ``PROTECT Act''). It 
also amends the assault guidelines and the adjustment at Sec.  3A1.2 
(Official Victim) to implement the directive in section 11008(e) of the 
21st Century Department of Justice Appropriations Authorization Act, 
Pub. L. 107-273 (the ``Act'').
    First, this amendment makes a number of changes to the homicide 
guidelines. The amendment revises the commentary in guideline Sec.  
2A1.1 (First Degree Murder) and deletes outdated language. One effect 
of this revision is to clarify that a downward departure from a 
mandatory statutory sentence 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. Sec.  3553(e).
    In addition, the Commission received public comment that the 
guideline penalties for all homicides, other than for first degree 
murder, were inadequate and in need of review. An examination of the 
homicide and manslaughter guidelines also was prompted by section 104 
of the PROTECT Act, which directed the Commission to increase the base 
offense level for Sec.  2A4.1 (Kidnapping, Abduction, Unlawful 
Restraint). The Commission increased the base offense level for 
kidnapping by eight levels, from base offense level 24 to base offense 
level 32, effective May 30, 2003. This increase brought kidnapping 
without injury to within one level of the base offense of level 33 for 
second degree murder. The Commission examined data on second degree 
murder offenses and found that in 2002, courts departed upward from the 
guideline range in 34.3% of the cases. The Commission also received 
public comment expressing concern that an individual convicted of 
second degree murder who accepted responsibility might serve as little 
as eight years' imprisonment. By increasing the base offense level in 
Sec.  2A1.2 (Second Degree Murder) to level 38, the Commission has 
established an approximate 20-year sentence of imprisonment for second 
degree murder.
    Data also showed a high level of upward departure sentences for 
some other homicide offenses, such as voluntary manslaughter, which had 
a 28.6% upward departure rate in 2002. Based upon such indications that 
the sentences may be inadequate for these offenses, the Commission 
increased the base offense levels of many of the homicide guidelines to 
punish them more appropriately and with an eye toward restoring the 
proportionality found in the original guidelines. For example, the 
original base offense level of 28 for attempted first degree murder, 
Sec.  2A2.1 (Assault with Intent to Commit Murder; Attempted Murder) is 
five levels lower than the original base offense level of level 33 for 
second degree murder. In this amendment, the five-level increase from a 
base offense level of level 28 to level 33 for attempted first degree 
murder mirrors the five-level increase for second degree murder from 
offense level of level 33 to level 38 and maintains the five-level 
difference that exists between the two. The amendment increases the 
base offense levels in the guidelines for Sec. Sec.  2A1.2, 2A1.3 
(Voluntary Manslaughter), 2A1.5 (Conspiracy or Solicitation to Commit 
Murder), and 2A2.1.
    Additionally, the amendment adds a third alternative base offense 
level in Sec.  2A1.4 (Involuntary Manslaughter) of level 22 for 
reckless involuntary manslaughter offenses that involved the reckless 
operation of a means of transportation. This new offense level 
completes work undertaken in the previous amendment cycle to address 
disparities between federal and state sentences for vehicular 
manslaughter and to account for the 1994 increase in the statutory 
maximum term of imprisonment from three to six years. The new 
alternative offense level focusing on the reckless operation of a means 
of transportation addresses concerns raised by some members of Congress 
and comports with a recommendation from the Commission's Native 
American Advisory Group that vehicular manslaughter involving alcohol 
or drugs should be sentenced at offense level 22. The amendment also 
adds a special instruction to apply Sec.  3D1.2 (Groups of Closely 
Related Counts) as if there had been a separate count of conviction for 
each victim in cases in which more than one victim died. The purpose of 
the instruction is to ensure an incremental increase in punishment for 
single count offenses involving multiple victims.
    Second, this amendment makes a number of changes to the assault 
guidelines and the Chapter Three adjustment relating to official 
victims, to implement the congressional directive and the changes in 
statutory maximum terms of imprisonment in the 21st

[[Page 28997]]

Century Department of Justice Appropriations Authorization Act. The Act 
increased the statutory maximum term of imprisonment for a number of 
offenses against current or former officers or employees of the United 
States, including Federal judges and magistrate judges, their families, 
or persons assisting in the performance of those official duties, or 
offenses committed on account of those duties. In response to the 
directive, the Commission added a new specific offense characteristic 
in Sec.  2A2.2 (Aggravated Assault) to provide a two-level increase if 
the defendant was convicted under 18 U.S.C. Sec.  111(b) or Sec.  115. 
The Commission also amended the guideline to decrease the base offense 
level from level 15 to level 14, based upon information received from 
the Native American Advisory Group and studies indicating that federal 
aggravated assault sentences generally are more severe than many state 
aggravated assault sentences. To ensure that individuals who cause 
bodily injury to victims do not benefit from this decrease in the base 
offense level, the specific offense characteristics addressing degrees 
of bodily injury each were increased by one level. To maintain 
proportionality, reflect increased statutory penalties, and comply with 
the directive, the two non-aggravated assault guidelines also were 
amended. For Sec.  2A2.3 (Minor Assault), the alternative base offense 
levels each were increased by one level, a specific offense 
characteristic was added to provide a two-level enhancement if the 
victim sustained bodily injury, and a cross-reference to Sec.  2A2.2 
was added. Similarly, Sec.  2A2.4 (Obstructing or Impeding Officers) 
was amended by increasing the base offense level to level 10, and by 
adding a specific offense characteristic providing a two-level increase 
if the victim sustained bodily injury.
    The amendment restructures Sec.  3A1.2 (Official Victim) and 
provides a two-tiered adjustment. The amendment maintains the three-
level adjustment for offenses motivated by the status of the official 
victim, but increases the adjustment to six levels if that defendant's 
offense guideline was from Chapter Two, Part A (Offenses Against the 
Person). For example, a threat against a federal judge sentenced 
pursuant to Sec.  2A6.1 (Threatening or Harassing Communications) that 
is calculated at base offense level 12 could have received, before this 
amendment, a three-level enhancement under Sec.  3A1.2, which would 
have resulted in an adjusted offense level of level 15 and a guideline 
range of 18 to 24 months. Under this amendment, the defendant could 
receive a six-level adjustment, resulting in an enhanced offense level 
of level 18 and a guideline range of 27 to 33 months. The six level 
enhancement also applies to assaultive conduct against law enforcement 
officers or prison officials if the defendant committed the assault in 
a manner creating a substantial risk of serious bodily injury. This 
increase comports with the directive in the Act to ``ensure punishment 
at or near the maximum penalty for the most egregious conduct covered 
by the offense'' for offenses against federal officers, officials and 
employees.
    2. Amendment: Section 2A3.1(a) is amended by striking ``27'' and 
inserting ``30''.
    Section 2A3.1(b)(1) is amended by striking ``was committed by the 
means set forth'' and inserting ``involved conduct described''.
    Section 2A3.1(b)(6) is amended by striking ``Internet-access 
device'' and inserting ``interactive computer service''.
    Section 2A3.1(c) is amended in the heading by striking ``Cross 
Reference'' and inserting ``Cross References''.
    Section 2A3.1(c)(1) is amended by inserting ``, if the resulting 
offense level is greater than that determined above'' after 
``Murder)''.
    Section 2A3.1(c) is amended 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(d)(1) is amended by striking ``a correctional 
facility and the victim was a corrections employee'' and inserting 
``the custody or control of a prison or other correctional facility and 
the victim was a prison official''; and by striking ``(a)'' and 
inserting ``(c)(2)''.
    The Commentary to Sec.  2A3.1 captioned ``Application Notes'' is 
amended by striking Notes 1 through 3 and inserting the following:
    ``1. Definitions.--For purposes of this guideline:
    `Abducted', `permanent or life-threatening bodily injury', and 
`serious bodily injury' have the meaning given those terms in 
Application Note 1 of 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).
    `Custody or control' and `prison official' have the meaning given 
those terms in Application Note 4 of the Commentary to Sec.  3A1.2 
(Official Victim).
    `Child pornography' has the meaning given that term in 18 U.S.C. 
Sec.  2256(8).
    `Computer' has the meaning given that term in 18 U.S.C. Sec.  
1030(e)(1).
    `Distribution' means any act, including possession with intent to 
distribute, production, transportation, and advertisement, 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. Sec.  
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; or (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).
    `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.
    `Victim' includes an undercover law enforcement officer.
    2. Application of Subsection (b)(1).--For purposes of subsection 
(b)(1), `conduct described in 18 U.S.C. Sec.  2241(a) or (b)' is: (i) 
using force against the victim; (ii) threatening or placing the victim 
in fear that any person will be subject to death, serious bodily 
injury, or kidnapping; (iii) rendering the victim unconscious; or (iv) 
administering by force or threat of force, or without the knowledge or 
permission of the victim, a drug, intoxicant, or other similar

[[Page 28998]]

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, or in a case 
in which the ability of the victim to appraise or control conduct was 
substantially impaired by drugs or alcohol.
    3. Application of Subsection (b)(3).--
    (A) Care, Custody, or Supervisory Control.--Subsection (b)(3) is to 
be construed broadly 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 minor and not simply to the legal status of the 
defendant-minor relationship.
    (B) Inapplicability of Chapter Three Adjustment.--If the 
enhancement 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.  2A3.1 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 and inserting the following:

    ``(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 (i) persuade, induce, entice, 
or coerce a minor to engage in prohibited sexual conduct; or (ii) 
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 by redesignating Note 5 as Note 6; and by inserting after Note 
4 the following:
    ``5. Application of Subsection (c)(1).--
    (A) In General.--The cross reference in subsection (c)(1) is to be 
construed broadly and includes 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.
    (B) Definition.--For purposes of subsection (c)(1), `sexually 
explicit conduct' has the meaning given that term in 18 U.S.C. Sec.  
2256(2).''.
    The Commentary to Sec.  2A3.1 captioned ``Application Notes'' is 
amended in Note 6, as redesignated by this amendment, by inserting 
``Upward Departure Provision.''--before ``If a victim''.
    Section 2A3.2 is amended by striking subsection (a) and inserting 
the following:
    ``(a) Base Offense Level: 18''.
    Section 2A3.2(b)(1) is amended by striking ``victim'' and inserting 
``minor''; and by striking ``2 levels'' and inserting ``4 levels''.
    Section 2A3.2(b) is amended by striking subdivisions (2) through 
(4) 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 minor to engage in 
prohibited sexual conduct; or (ii) a participant otherwise unduly 
influenced the minor to engage in prohibited sexual conduct, increase 
by 4 levels.
    (3) If a computer or an interactive computer service was used to 
persuade, induce, entice, or coerce the minor 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. Sec.  
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. Sec.  
230(f)(2)).
    `Minor' 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; or (C) an undercover law 
enforcement officer who represented to a participant that the officer 
had not attained the age of 16 years.'';

and by striking `` `Sexual act' '' and all that follows through ``16 
years.''.

    The Commentary to Sec.  2A3.2 captioned ``Application Notes'' is 
amended in Note 2 by striking ``Custody, Care, and Supervisory Control 
Enhancement.--Subsection (b)(1)'' and inserting the following:
    ``Custody, Care, or Supervisory Control Enhancement.--
    (A) In General.--Subsection (b)(1)'';

by striking ``victim'' each place it appears and inserting ``minor''; 
and by adding at the end the following:

    ``(B) Inapplicability of Chapter Three Adjustment.--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 Notes 3 through 5 and inserting the following:
    ``3. Application of Subsection (b)(2).--
    (A) Misrepresentation of Identity.--The enhancement in subsection 
(b)(2)(B)(i) applies in cases involving the misrepresentation of a 
participant's identity to persuade, induce, entice, or coerce the minor 
to engage in prohibited sexual conduct. Subsection (b)(2)(B)(i) is 
intended to apply only to misrepresentations made directly to the minor 
or to a person who exercises custody, care, or supervisory control of 
the minor. Accordingly, the enhancement in subsection (b)(2)(B)(i) 
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)(2)(B)(i) 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, 
or coerce the 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.
    (B) Undue Influence.--In determining whether subsection 
(b)(2)(B)(ii) applies, the court should closely consider the facts of 
the case to determine whether a participant's influence over the minor 
compromised the voluntariness of the minor's behavior.
    In a case in which a participant is at least 10 years older than 
the minor, there shall be a rebuttable presumption, for purposes of 
subsection (b)(2)(B)(ii), that such participant unduly influenced the 
minor to engage in prohibited sexual conduct. In such a case, some 
degree of

[[Page 28999]]

undue influence can be presumed because of the substantial difference 
in age between the participant and the minor.
    4. Application of Subsection (b)(3).--Subsection (b)(3) provides an 
enhancement if a computer or an interactive computer service was used 
to persuade, induce, entice, or coerce the minor 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 minor or with a person who exercises 
custody, care, or supervisory control of the minor.''.
    The Commentary to Sec.  2A3.2 captioned ``Application Notes'' is 
amended by redesignating Notes 6 and 7 as Notes 5 and 6, respectively.
    The Commentary to Sec.  2A3.2 captioned ``Background'' is amended 
by striking ``or chapter 117 of title 18, United States Code''; by 
striking ``victim'' each place it appears and inserting ``minor''; and 
by striking ``victim's'' and inserting ``minor's''.
    Section 2A3.3(a) is amended by striking ``9'' and inserting ``12''.
    Section 2A3.3(b)(1) is amended by striking ``(A)''; and by striking 
``; or (B) facilitate transportation or travel, by a minor or a 
participant, to engage in prohibited sexual conduct''.
    Section 2A3.3(b)(2) is amended by striking ``(A)''; by striking ``; 
or (B) facilitate transportation or travel, by a minor or a 
participant, to engage in prohibited sexual conduct''; and 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. Sec.  
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. Sec.  
230(f)(2)).''.
    The Commentary to Sec.  2A3.3 captioned ``Application Notes'' is 
amended by striking Notes 2 and 3 and inserting the following:
    ``2. Application of Subsection (b)(1).--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 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. Application of Subsection (b)(2).--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) through 
(3) and inserting the following:
    ``(1) 20, if the offense involved conduct described in 18 U.S.C. 
Sec.  2241(a) or (b);
    (2) 16, if the offense involved conduct described in 18 U.S.C. 
Sec.  2242; or
    (3) 12, otherwise.''.
    Section 2A3.4(b)(1) is amended by striking ``16'' each place it 
appears and inserting ``20''.
    Section 2A3.4(b) is amended by striking subdivisions (4) through 
(6) 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:
    ``1. Definitions.--For purposes of this guideline:
    `Computer' has the meaning given that term in 18 U.S.C. Sec.  
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. Sec.  
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; or (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 by striking Notes 2 and 3 and inserting the following:
    ``2. Application of Subsection (a)(1).--For purposes of subsection 
(a)(1), `conduct described in 18 U.S.C. Sec.  2241(a) or (b)' is: (i) 
using force against the victim; (ii) threatening or placing the victim 
in fear that any person will be subjected to death, serious bodily 
injury, or kidnapping; (iii) rendering the victim unconscious; or (iv) 
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.
    3. Application of Subsection (a)(2).--For purposes of subsection 
(a)(2), `conduct described in 18 U.S.C. Sec.  2242' is: (i) threatening 
or placing the victim in fear (other than by threatening or placing the 
victim in fear that any person will be subjected to death, serious 
bodily injury, or kidnapping); or (ii) victimizing an individual who is 
incapable of appraising the nature of the conduct or physically 
incapable of declining participation in, or communicating unwillingness 
to engage in, the sexual act.''.
    The Commentary to Sec.  2A3.4 captioned ``Application Notes'' is 
amended in Note 4 by inserting before ``Subsection (b)(3)'' the 
following:
    ``Application of Subsection (b)(3).--
    (A) Custody, Care, or Supervisory Control.--'';

and by adding at the end the following:

    ``(B) Inapplicability of Chapter Three Adjustment.--If the 
enhancement 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; 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''; by striking ``(A)'' each place it appears; and by 
striking ``; or (B) facilitate

[[Page 29000]]

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:
    ``Application of Subsection (b)(5).--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.''.
    Chapter Two, Part G, Subpart 1 is amended by striking Sec.  2G1.1 
and its accompanying commentary and inserting the following:
    ``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 fraud or coercion, increase by 4 
levels.
    (c) Cross Reference
    (1) If the offense involved conduct described in 18 U.S.C. Sec.  
2241(a) or (b) or 18 U.S.C. Sec.  2242, 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. Sec.  1328 (only if the offense 
involved a victim other than a minor); 18 U.S.C. Sec. Sec.  1591 (only 
if the offense involved a victim other than a minor), 2421 (only if the 
offense involved a victim other than a minor), 2422(a) (only if the 
offense involved a victim other than a minor).
    Application Notes:
    1. Definitions.--For purposes of this guideline:
    `Commercial sex act' has the meaning given that term in 18 U.S.C. 
Sec.  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 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 fraud or coercion that occurs as part of the 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), `coercion' includes any form of conduct 
that negates the voluntariness 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 Chapter Three Adjustment.--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. Application of Subsection (c)(1).--
    (A) Conduct Described in 18 U.S.C. Sec.  2241(a) or (b).--For 
purposes of subsection (c)(1), conduct described in 18 U.S.C. Sec.  
2241(a) or (b) is: (i) using force against the victim; (ii) threatening 
or placing the victim in fear that any person will be subject to death, 
serious bodily injury, or kidnapping; (iii) rendering the victim 
unconscious; or (iv) 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, or in a case in which the ability of the victim to appraise 
or control conduct was substantially impaired by drugs or alcohol.
    (B) Conduct Described in 18 U.S.C. Sec.  2242.--For purposes of 
subsection (c)(1), conduct described in 18 U.S.C. Sec.  2242 is: (i) 
threatening or placing the victim in fear (other than by threatening or 
placing the victim in fear that any person will be subject to death, 
serious bodily injury, or kidnapping); or (ii) victimizing a victim who 
is incapable of appraising the nature of the conduct or who is 
physically incapable of declining participation in, or communicating 
unwillingness to engage in, the sexual act.
    5. 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.
    6. Upward Departure Provision.--If the offense involved more than 
ten victims, an upward departure may be warranted.
    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 with an adult 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 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; Sex Trafficking of Children; 
Use of Interstate Facilities to Transport Information about a 
Minor).''.
    Chapter Two, Part G, Subpart 1, is amended by adding at the end the

[[Page 29001]]

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; Sex 
Trafficking of Children; Use of Interstate Facilities to Transport 
Information about a Minor
    (a) Base Offense Level: 24
    (b) Specific Offense Characteristics
    (1) If (A) the defendant was a parent, relative, or legal guardian 
of the minor; or (B) the minor was otherwise in the custody, care, or 
supervisory control of the defendant, increase by 2 levels.
    (2) If (A) the offense involved the knowing misrepresentation of a 
participant's identity to persuade, induce, entice, coerce, or 
facilitate the travel of, a minor to engage in prohibited sexual 
conduct; or (B) a participant otherwise unduly influenced a minor to 
engage in prohibited sexual conduct, increase by 2 levels.
    (3) If 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 prohibited sexual conduct; or (B) 
entice, encourage, offer, or solicit a person to engage in prohibited 
sexual conduct with the minor, increase by 2 levels.
    (4) If the offense involved (A) the commission of a sex act or 
sexual contact; or (B) a commercial sex act, increase by 2 levels.
    (5) If the offense involved a minor who had not attained the age of 
12 years, increase by 8 levels.
    (c) Cross References
    (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. Sec.  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.
    (3) If the offense involved conduct described in 18 U.S.C. Sec.  
2241 or Sec.  2242, 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 interstate 
travel with intent to engage in a sexual act with a minor who had not 
attained the age of 12 years, or knowingly engaging in a sexual act 
with 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 minor, Chapter Three, 
Part D (Multiple Counts) shall be applied as if the persuasion, 
enticement, coercion, travel, or transportation to engage in a 
commercial sex act or prohibited sexual conduct of each victim had been 
contained in a separate count of conviction.

Commentary

    Statutory Provisions: 8 U.S.C. Sec.  1328 (only if the offense 
involved a minor); 18 U.S.C. Sec. Sec.  1591 (only if the offense 
involved a minor), 2421 (only if the offense involved a minor), 2422 
(only if the offense involved a minor), 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. 
Sec.  1591(c)(1).
    `Computer' has the meaning given that term in 18 U.S.C. Sec.  
1030(e)(1).
    `Illicit sexual conduct' has the meaning given that term in 18 
U.S.C. Sec.  2423(f).
    `Interactive computer service' has the meaning given that term in 
section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. Sec.  
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; or (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).
    `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 act' has the meaning given that term in 18 U.S.C. Sec.  
2246(2).
    `Sexual contact' has the meaning given that term in 18 U.S.C. Sec.  
2246(3).
    2. Application of Subsection (b)(1).--
    (A) Custody, Care, or Supervisory Control.--Subsection (b)(1) 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 minor and not simply to the legal 
status of the defendant-minor relationship.
    (B) Inapplicability of Chapter Three Adjustment.--If the 
enhancement under subsection (b)(1) applies, do not apply Sec.  3B1.3 
(Abuse of Position of Trust or Use of Special Skill).
    3. Application of Subsection (b)(2).--
    (A) Misrepresentation of Participant's Identity.--The enhancement 
in subsection (b)(2)(A) 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 
prohibited sexual conduct. Subsection (b)(2)(A) 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)(2)(A) 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)(2)(A) 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 prohibited sexual 
conduct. Accordingly, use of a computer screen name, without such 
intent, would not be a sufficient basis for application of the 
enhancement.
    (B) Undue Influence.--In determining whether subsection (b)(2)(B) 
applies, the court should closely consider the facts of the case to 
determine whether a participant's influence over the minor compromised 
the voluntariness of the minor's behavior.
    In a case in which a participant is at least 10 years older than 
the minor, there shall be a rebuttable presumption, for purposes of 
subsection (b)(2)(B), that

[[Page 29002]]

such participant unduly influenced the minor to engage in prohibited 
sexual conduct. In such a case, some degree of undue influence can be 
presumed because of the substantial difference in age between the 
participant and the minor.
    4. Application of Subsection (b)(3).--Subsection (b)(3) 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)(3) 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.
    5. Application of Subsection (c).--
    (A) Application of Subsection (c)(1).--The cross reference in 
subsection (c)(1) is to be construed broadly and includes all instances 
in which the offense involved employing, using, persuading, inducing, 
enticing, coercing, transporting, permitting, or offering or seeking by 
notice, advertisement or other method, a minor 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(2).
    (B) Application of Subsection (c)(3).--For purposes of subsection 
(c)(3):
    (i) Conduct described in 18 U.S.C. Sec.  2241(a) or (b) is: (I) 
using force against the minor; (II) threatening or placing the minor in 
fear that any person will be subject to death, serious bodily injury, 
or kidnapping; (III) rendering the minor unconscious; or (IV) 
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.
    (ii) Conduct described in 18 U.S.C. Sec.  2241(c) is: (I) 
interstate travel with intent to engage in a sexual act with a minor 
who has not attained the age of 12 years; (II) knowingly engaging in a 
sexual act with a minor who has not attained the age of 12 years; or 
(III) knowingly engaging in a sexual act under the circumstances 
described in 18 U.S.C. Sec.  2241(a) and (b) with a minor who has 
attained the age of 12 years but has not attained the age of 16 years 
(and is at least 4 years younger than the person so engaging).
    (iii)Conduct described in 18 U.S.C. Sec.  2242 is: (I) threatening 
or placing the minor in fear (other than by threatening or placing the 
minor in fear that any person will be subject to death, serious bodily 
injury, or kidnapping); or (II) victimizing a minor who is incapable of 
appraising the nature of the conduct or who is physically incapable of 
declining participation in, or communicating unwillingness to engage 
in, the sexual act.
    6. Application of Subsection (d)(1).--For the purposes of Chapter 
Three, Part D (Multiple Counts), each minor 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 minor. Consequently, multiple counts involving more than one 
minor 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 minor, whether specifically cited 
in the count of conviction, each such minor shall be treated as if 
contained in a separate count of conviction.
    7. Upward Departure Provision.--If the offense involved more than 
ten minors, an upward departure may be warranted.
    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. This guideline also 
covers offenses involving a minor under section 1591 of title 18, 
United States Code. Offenses involving an individual who had attained 
the age of 18 years are covered under Sec.  2G1.1 (Promoting A 
Commercial Sex Act or Prohibited Sexual Conduct with an Individual 
Other than a Minor).''.
    Section 2G2.1(a) is amended by striking ``27'' and inserting 
``32''.
    Section 2G2.1(b) is amended in subdivision (1) by striking 
``victim'' and inserting ``minor''; by redesignating subdivisions (2) 
and (3) as subdivisions (5) and (6), respectively; and by inserting 
after subdivision (1) the following:
    ``(2) (Apply the greater) If the offense involved--
    (A) the commission of a sexual act or sexual contact, increase by 2 
levels; or
    (B) (i) the commission of a sexual act; and (ii) conduct described 
in 18 U.S.C. Sec.  2241(a) or (b), increase by 4 levels.
    (3) If the offense involved distribution, increase by 2 levels.
    (4) If the offense involved material that portrays sadistic or 
masochistic conduct or other depictions of violence, increase by 4 
levels.''.
    Section 2G2.1(b)(6), as redesignated by this amendment, is amended 
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. Sec.  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), 2260'' and inserting ``, 
2260(b)''.
    The Commentary to Sec.  2G2.1 captioned ``Application Notes'' is 
amended by striking Notes 1 through 5 and inserting the following:
    ``1. Definitions.--For purposes of this guideline:
    `Computer' has the meaning given that term in 18 U.S.C. Sec.  
1030(e)(1).
    `Distribution' means any act, including possession with intent to 
distribute, production, advertisement, and transportation, 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. Sec.  
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; or (C) an undercover law 
enforcement officer who represented to a participant that the officer 
had not attained the age of 18 years.

[[Page 29003]]

    `Sexually explicit conduct' has the meaning given that term in 18 
U.S.C. Sec.  2256(2).
    2. Application of Subsection (b)(2).--For purposes of subsection 
(b)(2):
    `Conduct described in 18 U.S.C. Sec.  2241(a) or (b)' is: (i) using 
force against the minor; (ii) threatening or placing the minor in fear 
that any person will be subject to death, serious bodily injury, or 
kidnapping; (iii) rendering the minor unconscious; or (iv) 
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.
    `Sexual act' has the meaning given that term in 18 U.S.C. Sec.  
2246(2).
    `Sexual contact' has the meaning given that term in 18 U.S.C. Sec.  
2246(3).
    3. Application of Subsection (b)(5).--
    (A) In General.--Subsection (b)(5) 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 minor and not 
simply to the legal status of the defendant-minor relationship.
    (B) Inapplicability of Chapter Three Adjustment.--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. Application of Subsection (b)(6).--
    (A) Misrepresentation of Participant's Identity.--The enhancement 
in subsection (b)(6)(A) 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 
sexually explicit conduct for the purpose of producing sexually 
explicit material. Subsection (b)(6)(A) 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)(A) 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)(A) 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 sexually explicit 
conduct for the purpose of producing sexually explicit material. 
Accordingly, use of a computer screen name, without such intent, would 
not be a sufficient basis for application of the enhancement.
    (B) Use of a Computer or an Interactive Computer Service.--
Subsection (b)(6)(B) provides an enhancement if the offense involved 
the use of a computer or an interactive computer service to persuade, 
induce, entice, coerce, or facilitate the travel of, a minor to engage 
in sexually explicit conduct for the purpose of producing sexually 
explicit material or otherwise to solicit participation by a minor in 
such conduct for such purpose. 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.
    5. Application of 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.''.
    The Commentary to Sec.  2G2.1 captioned ``Application Notes'' is 
amended in Note 6 by striking ``victims'' and inserting ``minors''.
    Chapter Two, Part G, Subpart 2, is amended by striking Sec. Sec.  
2G2.2 and 2G2.4 and their accompanying commentary and inserting after 
Sec.  2G2.1 the following:
    ``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 Involving the Sexual 
Exploitation of a Minor
    (a) Base Offense Level:
    (1) 18, if the defendant is convicted of 18 U.S.C. Sec.  1466A(b), 
Sec.  2252(a)(4), or Sec.  2252A(a)(5).
    (2) 22, otherwise.
    (b) Specific Offense Characteristics
    (1) If (A) subsection (a)(2) applies; (B) the defendant's conduct 
was limited to the receipt or solicitation of material involving the 
sexual exploitation of a minor; and (C) the defendant did not intend to 
traffic in, or distribute, such material, decrease by 2 levels.
    (2) If the material involved a prepubescent minor or a minor who 
had not attained the age of 12 years, increase by 2 levels.
    (3) (Apply the greatest) If the 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, other 
than illegal activity covered under subdivision (E), 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.
    (4) If the offense involved material that portrays sadistic or 
masochistic conduct or other depictions of violence, increase by 4 
levels.
    (5) If the defendant engaged in a pattern of activity involving the 
sexual abuse or exploitation of a minor, increase by 5 levels.
    (6) If the offense involved the use of a computer or an interactive 
computer service for the possession, transmission, receipt, or 
distribution of the material, increase by 2 levels.
    (7) 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.

[[Page 29004]]

    (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. Sec. Sec.  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. Sec.  
1030(e)(1).
    ``Distribution'' means any act, including possession with intent to 
distribute, production, advertisement, and transportation, 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.
    ``Interactive computer service'' has the meaning given that term in 
section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. Sec.  
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; or (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 any of the following: (A) 
conduct described in 18 U.S.C. Sec.  2241, Sec.  2242, Sec.  2243, 
Sec.  2251, Sec.  2251A, Sec.  2260(b), Sec.  2421, Sec.  2422, or 
Sec.  2423; (B) an offense under state law, that would have been an 
offense under any such section if the offense had occurred within the 
special maritime or territorial jurisdiction of the United States; or 
(C) an attempt or conspiracy to commit any of the offenses under 
subdivisions (A) or (B). ``Sexual abuse or exploitation'' does not 
include possession, receipt, or trafficking in material relating to the 
sexual abuse or exploitation of a minor.
    2. Application of Subsection (b)(4).--Subsection (b)(4) applies if 
the offense involved material that portrays sadistic or masochistic 
conduct or other depictions of violence, regardless of whether the 
defendant specifically intended to possess, receive, or distribute such 
materials.
    3. Application of Subsection (b)(5).--A conviction taken into 
account under subsection (b)(5) is not excluded from consideration of 
whether that conviction receives criminal history points pursuant to 
Chapter Four, Part A (Criminal History).
    4. Application of Subsection (b)(7).--
    (A) Definition of ``Images''.--``Images'' means any visual 
depiction, as defined in 18 U.S.C. Sec.  2256(5), that constitutes 
child pornography, as defined in 18 U.S.C. Sec.  2256(8).
    (B) Determining the Number of Images.--For purposes of determining 
the number of images under subsection (b)(7):
    (i) Each photograph, picture, computer or computer-generated image, 
or any similar visual depiction shall be considered to be one image. If 
the number of images substantially underrepresents the number of minors 
depicted, an upward departure may be warranted.
    (ii) Each video, video-clip, movie, or similar recording shall be 
considered to have 75 images. If the length of the recording is 
substantially more than 5 minutes, an upward departure may be 
warranted.
    5. Application of Subsection (c)(1).--
    (A) In General.--The cross reference in subsection (c)(1) is to be 
construed broadly and includes 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.
    (B) Definition.--``Sexually explicit conduct '' has the meaning 
given that term in 18 U.S.C. Sec.  2256(2).
    6. 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)(5) 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)(5) but that enhancement does not adequately 
reflect the seriousness of the sexual abuse or exploitation involved.
    Background: Section 401(i)(1)(C) of Public Law 108-21 directly 
amended subsection (b) to add subdivision (7), effective April 30, 
2003.''.
    Section 2G3.1 is amended in the heading by adding at the end ``; 
Misleading Domain Names''.
    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:
    ``(D) Distribution to a minor that was intended to persuade, 
induce, entice, or coerce the minor to engage in any illegal activity, 
other than illegal activity covered under subdivision (E), 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); and by inserting after subdivision (1) the following:
    ``(2) If the offense involved the use of a misleading domain name 
on the Internet with the intent to deceive a minor into viewing 
material on the Internet that is harmful to minors, increase by 2 
levels.

[[Page 29005]]

    (3) If the offense involved the use of a computer or an interactive 
computer service, increase by 2 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'' in the heading and inserting ``Notes''; 
and by striking Application Note 1 and inserting the following:
    ``1. Definitions.--For purposes of this guideline:
    `Computer' has the meaning given that term in 18 U.S.C. Sec.  
1030(e)(1).
    `Distribution' means any act, including possession with intent to 
distribute, production, advertisement, and transportation, related to 
the transfer of obscene matter. 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.
    `Distribution to a minor' means the knowing distribution to an 
individual who is a minor at the time of the offense.
    `Interactive computer service' has the meaning given that term in 
section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. Sec.  
230(f)(2)).
    `Material that is harmful to minors' has the meaning given that 
term in 18 U.S.C. Sec.  2252B(d).
    `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; or (C) an undercover law 
enforcement officer who represented to a participant that the officer 
had not attained the age of 18 years.
    `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).
    `Sexually explicit conduct' has the meaning given that term in 18 
U.S.C. Sec.  2256(2).
    2. Inapplicability of Subsection (b)(3).--If the defendant is 
convicted of 18 U.S.C. Sec.  2252B, subsection (b)(3) shall not apply.
    3. Application of Subsection (b)(4).--Subsection (b)(4) applies if 
the offense involved material that portrays sadistic or masochistic 
conduct or other depictions of violence, regardless of whether the 
defendant specifically intended to possess, receive, or distribute such 
materials.''.
    Section 3D1.2(d) is amended by striking ``2G2.4'' and inserting 
``2G3.1''.
    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 Application Note 1 of the Commentary to 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 the use of a computer or an interactive 
computer service in cases in which the defendant used such items.''.
    Section 5D1.2 is amended by striking subsections (a) through (c) 
and inserting following:
    ``(a) Except as provided in subsections (b) and (c), if a term of 
supervised release is ordered, the length of the term shall be:
    (1) At least three years but not more than five years for a 
defendant convicted of a Class A or B felony.
    (2) At least two years but not more than three years for a 
defendant convicted of a Class C or D felony.
    (3) One year for a defendant convicted of a Class E felony or a 
Class A misdemeanor.
    (b) Notwithstanding subdivisions (a)(1) through (3), the length of 
the term of supervised release shall be not less than the minimum term 
of years specified for the offense under subdivisions (a)(1) through 
(3) and may be up to life, if the offense is--
    (1) any offense listed in 18 U.S.C. Sec.  2332b(g)(5)(B), the 
commission of which resulted in, or created a foreseeable risk of, 
death or serious bodily injury to another person; or
    (2) a sex offense.

(Policy Statement) If the instant offense of conviction is a sex 
offense, however, the statutory maximum term of supervised release is 
recommended.

    (c) The term of supervised release imposed shall be not less than 
any statutorily required term of supervised release.''.
    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 Application Note 1 of the Commentary to 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 the use of a computer or an interactive 
computer service in cases in which the defendant used such items.''.
    Section 7B1.3(g) is amended by striking ``Where'' each place it 
appears and inserting ``If''; and in subdivision (2) by striking ``and 
the term of imprisonment imposed is less than the maximum term of 
imprisonment imposable upon revocation''.
    The Commentary to Sec.  7B1.3 captioned ``Application Notes'' is 
amended by striking ``and imposition of less than the maximum imposable 
term of imprisonment'' in Note 2; and by striking Note 6.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. Sec.  1466 the following:
``18 U.S.C. Sec.  1466A 2G2.2'';
in the line referenced to 18 U.S.C. Sec.  2252 by striking ``, 2G2.4'';
in the line referenced to 18 U.S.C. Sec.  2252A by striking ``, 
2G2.4'';
by inserting before the line referenced to 18 U.S.C. Sec.  2257 the 
following new line: ``18 U.S.C. Sec.  2252B 2G3.1'';
and by striking the following: ``18 U.S.C. Sec.  2260 2G2.1, 2G2.2'',
and inserting the following:
``18 U.S.C. Sec.  2260(a) 2G2.1
18 U.S.C. Sec.  2260(b) 2G2.2''.
    Reason for Amendment: This amendment implements 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''), Pub. L. 108-21. This 
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), and 5D1.3 (Conditions of Supervised Release), 
and Appendix A (Statutory Index).
    First, the amendment consolidates Sec. Sec.  2G2.2 (Trafficking in 
Material Involving the Sexual Exploitation of a

[[Page 29006]]

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 by judges, probation officers, 
prosecutors, and defense attorneys regarding difficulties in 
determining the appropriate guideline (Sec.  2G2.2 or Sec.  2G2.4) for 
cases involving convictions of 18 U.S.C. Sec.  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.
    Section 103 of the PROTECT Act established five-year mandatory 
minimum terms of imprisonment for offenses related to trafficking and 
receipt of child pornography under 18 U.S.C. Sec. Sec.  2252(a)(1)-(3) 
and 2252A(a)(1), (2), (3), (4) and (6). This section also increased the 
statutory maximum terms of imprisonment for these offenses from 15 
years to 20 years. Furthermore, the PROTECT Act increased the statutory 
maximum penalty for possession offenses from five to ten years. As a 
result of these new mandatory minimum penalties and the increases in 
the statutory maxima for these offenses, the Commission increased the 
base offense level for these offenses.
    The amendment provides two alternative base offense levels 
depending upon the statute of conviction. The base offense level is set 
at level 18 for a defendant convicted of the possession of child 
pornography under 18 U.S.C. Sec.  2252(a)(4), 18 U.S.C. Sec.  
2252A(a)(5), or 18 U.S.C. Sec.  1466A(b), and at level 22 for a 
defendant convicted of any other offense referenced to this guideline, 
primarily trafficking and receipt of child pornography. The Commission 
determined that a base offense level of level 22 is appropriate for 
trafficking offenses because, when combined with several specific 
offense characteristics which are expected to apply in almost every 
case (e.g., use of a computer, material involving children under 12 
years of age, number of images), the mandatory minimum of 60 months' 
imprisonment will be reached or exceeded in almost every case by the 
Chapter Two calculations. The Commission increased the base offense 
level for possession offenses from level 15 to level 18 because of the 
increase in the statutory maximum term of imprisonment from 5 to 10 
years, and to maintain proportionality with receipt and trafficking 
offenses. The amendment also provides a two-level decrease at Sec.  
2G2.2(b)(1) for a defendant whose base offense level is level 22, whose 
conduct was limited to the receipt or solicitation of material 
involving the sexual exploitation of a minor, and whose conduct did not 
involve an intent to traffic in or distribute the material. Thus, 
individuals convicted of receipt of child pornography with no intent to 
traffic or distribute the material essentially will have an adjusted 
offense level of level 20, as opposed to an offense level of level 22, 
for receipt with intent to traffic, prior to application of any other 
specific offense characteristics. The Commission's review of these 
cases indicated the conduct involved in such ``simple receipt'' cases 
in most instances was indistinguishable from ``simple possession'' 
cases. The statutory penalties for ``simple receipt'' cases, however, 
are the same as the statutory penalties for trafficking cases. 
Reconciling these competing concerns, the Commission determined that a 
two-level reduction from the base offense level of level 22 is 
warranted, if the defendant establishes that there was no intent to 
distribute the material.
    The amendment also provides a new, six-level enhancement at Sec.  
2G2.2(b)(3)(D) for offenses that involve distribution to a minor with 
intent to persuade, induce, entice, or coerce the minor to engage in 
any illegal activity, other than sexual activity.
    The amendment also makes a number of changes to the commentary at 
Sec.  2G2.2, as follows. The amendment adds several definitions, 
including definitions of ``computer,'' ``image,'' and ``interactive 
computer service,'' to provide greater guidance for these terms and 
uniformity in application of the guideline. The amendment also broadens 
the ``use of a computer'' enhancement at Sec.  2G2.2(b)(5) in two ways. 
First, the amendment expands the enhancement to include an 
``interactive computer service'' (e.g., Internet access devices), as 
defined in 47 U.S.C. Sec.  230(f)(2). The Commission concluded that the 
term ``computer'' did not capture all types of Internet devices. Thus, 
the amendment expands the definition of ``computer'' to include other 
devices that involve interactive computer services (e.g., Web-Tv). In 
addition, the amendment broadens the enhancement by explicitly 
providing that the enhancement applies to offenses in which the 
computer or interactive computer service was used to obtain possession 
of child pornographic material. Prior to this amendment, the 
enhancement only applied if the computer was used for the transmission, 
receipt or distribution of the material.
    The PROTECT Act directly amended Sec. Sec.  2G2.2 and 2G2.4 to 
create a specific offense characteristic related to the number of child 
pornography images. That specific offense characteristic provides a 
graduated enhancement of two to five levels, depending on the number of 
images. However, the congressional amendment did not provide a 
definition of ``image,'' which raised questions regarding how to apply 
the specific offense characteristic. This amendment defines the term 
``image'' and provides an instruction regarding how to apply the 
specific offense characteristic to videotapes. Application Note 4 
states that an ``image'' means any visual depiction described in 18 
U.S.C. Sec.  2256(5) and (8) and instructs that each photograph, 
picture, computer or computer-generated image, or any similar visual 
depiction shall be considered one image. Furthermore, the application 
note provides that each video, video-clip, movie, or similar recording 
shall be considered to have 75 images for purposes of the specific 
offense characteristic. Application Note 4 also provides two possible 
grounds for an upward departure (if the number of images substantially 
under-represents the number of minors or if the length of the videotape 
or recording is substantially more than five minutes). Because the 
image specific offense characteristic created directly by Congress in 
the PROTECT Act essentially supercedes an earlier directive regarding a 
specific offense characteristic relating to the number of items (see 
Pub. L. 102-141 and Amendment 436), the Commission deleted the specific 
offense characteristic for possessing ten or more child pornographic 
items (formerly Sec.  2G2.4(b)(3)). This deletion avoids potential 
litigation regarding issues of ``double counting'' if both specific 
offense characteristics were retained in the guideline.
    In response to the increase in the use of undercover officers in 
child pornography investigations, the amendment expands the definition 
of ``minor.'' ``Minor'' is defined as (1) an

[[Page 29007]]

individual who had not attained the age of 18 years; (2) an individual, 
whether fictitious or not, who a law enforcement officer represented to 
a participant (A) had not attained the age of 18 years, and (B) could 
be provided to a participant for the purposes of engaging in sexually 
explicit conduct; or (3) an undercover law enforcement officer who 
represented to a participant that the officer had not attained the age 
of 18 years.
    The amendment also makes clear that distribution includes 
advertising and posting material involving the sexual exploitation of a 
minor on a website for public viewing but does not include soliciting 
such material. In response to a circuit conflict, the amendment adds an 
application note to make clear that the specific offense characteristic 
for material portraying sadistic or masochistic conduct applies 
regardless of whether the defendant specifically intended to possess, 
receive, or distribute such material. The circuit courts have disagreed 
regarding whether a defendant must have specifically intended to 
receive the sadistic or masochistic images. Some circuit courts have 
required that the defendant must have intended to receive these images. 
See United States v. Kimbrough, 69 F.3d 723 (5th Cir. 1995); United 
States v. Tucker, 136 F.3d 763 (11th Cir. 1998). The Seventh Circuit 
has held that this specific offense characteristic is applied based on 
a strict liability standard, and that no proof of intent is necessary. 
See United States v. Richardson, 238 F.3d 837 (7th Cir. 2001). The 
Commission followed the Seventh Circuit's holding that the enhancement 
applies regardless of whether the defendant specifically intended to 
possess, receive, or distribute such material.
    Second, section 103 of the PROTECT Act increased the mandatory 
minimum term of imprisonment from 10 to 15 years for offenses related 
to the production of child pornography under 18 U.S.C. Sec.  2251. In 
response, the amendment increases the base offense level at 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) 
from level 27 to level 32. A base offense level of level 32 is 
appropriate for production offenses because, combined with the 
application of several specific offense characteristics that are 
expected to apply in almost all production cases (e.g., age of the 
victim), this base offense level will ensure that the 15 year mandatory 
minimum (180 months) will be met in by the Chapter Two calculations 
almost every case.
    The amendment adds three new specific offense characteristics that 
are associated with the production of child pornography. The amendment 
provides, at Sec.  2G2.1(b)(2), a two-level increase if the offense 
involved the commission of a sex act or sexual contact, or a four-level 
increase if the offense involved a sex act and conduct described in 18 
U.S.C. Sec.  2241(a) or (b) (i.e., the use of force was involved). The 
Commission concluded that this type of conduct is more serious than the 
production of a picture without a sex act or the use of force, and 
therefore, a two-or four-level increase is appropriate. The amendment 
also adds a two-level increase if the production offense also involved 
distribution. The Commission concluded that because traffickers 
sentenced at Sec.  2G2.2 receive an increase for distributing images of 
child pornography, an individual who produces and distributes the 
image(s) also should be punished for distributing the item. Lastly, the 
amendment adds a new, four-level increase if the offense involved 
material portraying sadistic or masochistic conduct. Similar to the 
distribution specific offense characteristic, the Commission concluded 
that, because Sec.  2G2.2 contains a four-level increase for 
possessing, receiving or trafficking these images, the producers of 
such images also should receive comparable additional punishment.
    Third, this 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; Sex Trafficking of Children; 
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). Prior to the amendment, chapter 117 offenses, primarily 18 
U.S.C. Sec. Sec.  2422 (Coercion and Enticement) and 2423 
(Transportation of Minors), were referenced by Appendix A (Statutory 
Index) to either Sec.  2G1.1 or Sec.  2A3.2. Offenses under 18 U.S.C. 
Sec. Sec.  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 then cross 
referenced from Sec.  2G1.1 to Sec.  2A3.2 (Criminal Sexual Abuse of a 
Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to 
Commit Such Acts) in order to account for certain underlying behavior. 
Application of this cross reference has led to confusion among courts 
and practitioners. Offenses under 18 U.S.C. Sec.  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. The 
creation of 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 to 
more appropriately tailor that guideline to actual statutory rape 
cases. Furthermore, travel and transportation cases have a different 
statutory penalty structure than Sec.  2243(a) statutory rape cases.
    Prior to the amendment, Sec.  2A3.2 provided 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. Sec. Sec.  2422(a) and 2423(a) and increased 
the statutory maximum term of imprisonment for these offenses from 15 
to 30 years. The PROTECT Act, however, did not increase the statutory 
maximum penalty, nor did the Act add a mandatory minimum, for 18 U.S.C. 
Sec.  2243(a) offenses.
    This new guideline has a base offense level of level 24 to account 
for the new mandatory minimum terms of imprisonment established by the 
PROTECT Act. The new guideline provides six specific offense 
characteristics to provide proportionate enhancements for aggravating 
conduct that may occur in connection with these cases. The guideline 
contains enhancements for commission of a sex act or commercial sex 
act, use of a computer, misrepresentations of identity, undue 
influence, custody issues, and involvement of a minor under the age of 
12 years. The amendment also provides three cross references to account 
for certain more serious sexual abuse conduct, including a cross 
reference if the offense involved conduct described in 18 U.S.C. Sec.  
2241 or

[[Page 29008]]

Sec.  2242. Furthermore, the amendment makes conforming changes to 
Sec.  2G1.1 (Promoting a Commercial Sex Act or Prohibited Sexual 
Conduct) as a result of the creation of the new travel guideline. 
Section 2G1.1 is expected to apply primarily to adult prostitution 
cases because of the creation of Sec.  2G1.3.
    Fourth, section 521 of the PROTECT Act created a new offense at 18 
U.S.C. Sec.  2252B (Misleading Domain Names on the Internet). Section 
2252B(a) prohibits the knowing use of a misleading domain name on the 
Internet with the intent to deceive a person into viewing material 
constituting obscenity. Offenses under this subsection are punishable 
by a maximum term of imprisonment of two years. Section 2252B(b) 
prohibits the knowing use of a misleading domain name with the intent 
to deceive a minor into viewing material that is harmful to minors, 
with a maximum term of imprisonment of four years. The 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 at Sec.  2G3.1(b)(2), if ``the offense 
involved the use of a misleading domain name on the Internet with the 
intent to deceive a minor into viewing material on the Internet that is 
harmful to minors.'' In addition, the amendment also provides 
enhancements for the following conduct: (1) distribution to a minor 
that was intended to persuade, induce, entice, or coerce a minor to 
engage in any illegal activity; and (2) use of a computer or 
interactive computer service. Finally, the 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 
ongoing or continuous in nature. The amendment makes other minor 
technical changes to the commentary to make this guideline consistent 
with other Chapter Two, Part G guidelines.
    Fifth, in response to a circuit conflict, this amendment adds a 
condition to Sec. Sec.  5B1.3 (Conditions of Probation) and 5D1.3 
(Conditions of Supervised Release) permitting the court to limit the 
use of a computer or an interactive computer service for sex offenses 
in which the defendant used 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 
prohibitions 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 other 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 on Internet use).
    In addition, this amendment makes Sec.  5D1.2 (Term of Supervised 
Release) consistent with changes made by the PROTECT Act regarding the 
applicable terms of supervised release under 18 U.S.C. Sec.  3583 for 
sex offenders.
    Sixth, 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) (Abusive Sexual Contact), 
and 2244(b) (Sexual Contact with a Person without that Person's 
Permission) of title 18, United States Code. This amendment makes 
several amendments to the guidelines in Chapter Two, Part A (Criminal 
Sexual Abuse) to address this 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 
definitions in the pornography guidelines.
    Seventh, the amendment increases the base offense level at Sec.  
2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse) 
from level 27 to level 30 to maintain proportionality between this 
guideline and Sec.  2G2.1, the production of child pornography 
guideline, the base offense level of which was raised to level 32 by 
this amendment. Furthermore, the amendment adds the term ``interactive 
computer service'' to the computer enhancement in Sec.  2A3.1.
    Eighth, the amendment increases the offense levels for two specific 
offense characteristics at Sec.  2A3.2. The amendment increases the 
custody, care, or supervisory control enhancement from two to four 
levels at Sec.  2A3.2(b)(1), and changes Sec.  2A3.2(b)(3), which 
involves the misrepresentation or undue influence by the defendant, 
from a two-to a four-level increase. The Commission concluded that an 
increase in the magnitude of these enhancements is appropriate because 
of the seriousness of such conduct. The amendment also deletes the 
alternative base offense level of level 21 or level 24 because these 
cases will be referenced to the new travel guideline at Sec.  2G1.3.
    Ninth, in response to section 401 of the PROTECT Act, the amendment 
increases the base offense level at Sec.  2A3.3 (Criminal Sexual Abuse 
of a Ward) from level 9 to a level 12. Although 18 U.S.C. Sec.  2243(b) 
offenses have only a one-year statutory maximum term of imprisonment, 
the Commission determined that these offenses were serious in nature 
and deserved punishment near that statutory maximum.
    Finally, the amendment increases the alternative base offense 
levels in Sec.  2A3.4 (Abusive Sexual Contact or Attempt to Commit 
Abusive Sexual Contact) to level 20, 16, or 12, depending on the 
conduct involved in the offense. Prior to the amendment, these base 
offenses levels were level 16, 12, or 10. Base offense level 20 applies 
if the offense involved conduct described in 18 U.S.C. Sec.  2241(a) or 
(b). Base offense level 16 applies if the offense involved conduct 
described in 18 U.S.C. Sec.  2242, and base offense level 12 applies 
for all other cases sentenced at this guideline. The Commission 
concluded that these increases were appropriate to account for the 
serious conduct committed by the defendant and to maintain 
proportionality with other Chapter Two, Part A guidelines.
    3. Amendment: Section 2B1.1(b) is amended by redesignating 
subdivisions (7) through (14) as subdivisions (8) through (15), 
respectively; and by inserting after subdivision (6) the following:
    ``(7) If (A) the defendant was convicted of an offense under 18 
U.S.C. Sec.  1037; and (B) the offense involved obtaining electronic 
mail addresses through improper means, increase by 2 levels.''.
    The Commentary to Sec.  2B1.1 captioned ``Statutory Provisions'' is 
amended by inserting ``1037,'' after ``1031,''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 4 by redesignating subdivisions (B)

[[Page 29009]]

and (C) as subdivisions (C) and (D), respectively; and by inserting 
after subdivision (A) the following:
    ``(B) Applicability to Transmission of Multiple Commercial 
Electronic Mail Messages.--For purposes of subsection (b)(2), an 
offense under 18 U.S.C. Sec.  1037, or any other offense involving 
conduct described in 18 U.S.C. Sec.  1037, shall be considered to have 
been committed through mass-marketing. Accordingly, the defendant shall 
receive at least a two-level enhancement under subsection (b)(2) and 
may, depending on the facts of the case, receive a greater enhancement 
under such subsection, if the defendant was convicted under, or the 
offense involved conduct described in, 18 U.S.C. Sec.  1037.''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended by redesignating Notes 6 through 18 as Notes 7 through 19, 
respectively; and by inserting after Note 5 the following:
    ``6. Application of Subsection (b)(7).--For purposes of subsection 
(b)(7), `improper means' includes the unauthorized harvesting of 
electronic mail addresses of users of a website, proprietary service, 
or other online public forum.''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. Sec.  1035 the following new line: ``18 U.S.C. 
Sec.  1037 2B1.1''.
    Reason for Amendment: This amendment responds to the directive in 
section 4(b) of the Controlling the Assault of Non-Solicited 
Pornography and Marketing Act (CAN-SPAM Act) of 2003, Pub. L. 108-187. 
The Act creates five new felony offenses codified at 18 U.S.C. Sec.  
1037 and 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. Sec.  1037 and other offenses 
that may be facilitated by sending large volumes of unsolicited 
electronic mail, including fraud, identity theft, obscenity, child 
pornography and sexual exploitation of children. The Act also requires 
that the Commission consider providing sentencing enhancements for 
several factors, including defendants convicted under 18 U.S.C. Sec.  
1037 who obtained electronic mail addresses through improper means.
    The amendment refers violations of subsections of 18 U.S.C. Sec.  
1037 to Sec.  2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; 
Offenses Involving Stolen Property; Property Damage or Destruction; 
Fraud and Deceit; Forgery; Offenses involving Altered or Counterfeit 
Instruments Other than Counterfeit Bearer Obligations of the United 
States). The Commission determined that reference to Sec.  2B1.1 is 
appropriate because subsection 18 U.S.C. Sec.  1037(a)(1) involves 
misappropriation of another's computer, and 18 U.S.C. Sec.  1037(a)(2) 
through (a)(5) involve deceit. Because each offense under 18 U.S.C. 
Sec.  1037 contains as an element the transmission of multiple 
commercial electronic messages (where ``multiple'' is defined in the 
statute as ``more than 100 electronic mail messages during a 24-hour 
period, more than 1,000 electronic mail messages during a 30-day 
period, or more than 10,000 electronic mail messages during a 1-year 
period''), the amendment provides in Application Note 4 that the mass-
marketing enhancement in Sec.  2B1.1(b)(2)(A)(ii) shall apply 
automatically to any defendant who is convicted of 18 U.S.C. Sec.  
1037, or who committed an offense involving conduct described in 18 
U.S.C. Sec.  1037. Broadening application of the mass marketing 
enhancement to all defendants sentenced under Sec.  2B1.1 whose offense 
involves conduct described in 18 U.S.C. Sec.  1037, whether or not the 
defendant is convicted under 18 U.S.C. Sec.  1037, responds 
specifically to that part of the directive concerning offenses that are 
facilitated by sending large volumes of electronic mail.
    Additionally, in response to the directive, a new specific offense 
characteristic in Sec.  2B1.1(b)(7) provides for a two-level increase 
if the defendant is convicted under 18 U.S.C. Sec.  1037 and the 
offense involved obtaining electronic mail addressed through improper 
means. A corresponding application note provides a definition of 
``improper means.'' Finally, the Commission also responded to the 
directive concerning other offenses by making several modifications to 
other guidelines, as set forth in Amendment 2 of this document. For 
example, an amendment to the obscenity guideline, Sec.  2G3.1 
(Importing, Mailing, or Transporting Obscene Matter; Transferring 
Obscene Matter to a Minor), added a two-level enhancement if the 
offense involved the use of a computer or interactive computer service.
    4. Amendment: The Commentary to Sec.  2B1.1 captioned ``Application 
Notes'' is amended in Note 15, as redesignated by Amendment 3 of this 
document, 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. Sec.  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; Conspiracy to Defraud by 
Interference with Governmental Functions).''.
    Chapter Two, Part C is amended by striking Sec. Sec.  2C1.1 and 
2C1.2 and their accompanying commentary and inserting the following:
    ``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; Conspiracy to Defraud by Interference with Governmental 
Functions
    (a) Base Offense Level:
    (1) 14, if the defendant was a public official; or
    (2) 12, otherwise.
    (b) Specific Offense Characteristics
    (1) If the offense involved more than one bribe or extortion, 
increase by 2 levels.
    (2) If the value of the payment, the benefit received or to be 
received in return for the payment, the value of anything obtained or 
to be obtained by a public official or others acting with a public 
official, or the loss to the government from the offense, whichever is 
greatest, 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 elected public official or any 
public official in a high-level decision-making or sensitive position, 
increase by 4 levels. If the resulting offense level is less than level 
18, increase to level 18.
    (4) If the defendant was a public official who facilitated (A) 
entry into the United States for a person, a vehicle, or cargo; (B) the 
obtaining of a passport or a document relating to naturalization, 
citizenship, legal entry, or legal resident status; or (C) the 
obtaining of a government identification document, increase by 2 
levels.
    (c) Cross References
    (1) If the offense was committed for the purpose of facilitating 
the commission of another criminal offense, apply the offense guideline 
applicable to a conspiracy to commit that other offense, if the 
resulting offense level is greater than that determined above.
    (2) If the offense was committed for the purpose of concealing, or 
obstructing justice in respect to, another criminal offense, apply 
Sec.  2X3.1 (Accessory After the Fact) or Sec.  2J1.2 (Obstruction of 
Justice), as appropriate,

[[Page 29010]]

in respect to that other offense, if the resulting offense level is 
greater than that determined above.
    (3) If the offense involved a threat of physical injury or property 
destruction, apply Sec.  2B3.2 (Extortion by Force or Threat of Injury 
or Serious Damage), if the resulting offense level is greater than that 
determined above.
    (d) Special Instruction for Fines--Organizations
    (1) In lieu of the pecuniary loss under subsection (a)(3) of Sec.  
8C2.4 (Base Fine), use the greatest of: (A) the value of the unlawful 
payment; (B) the value of the benefit received or to be received in 
return for the unlawful payment; or (C) the consequential damages 
resulting from the unlawful payment.

Commentary

    Statutory Provisions: 15 U.S.C. Sec. Sec.  78dd-1, 78dd-2, 78dd-3; 
18 U.S.C. Sec. Sec.  201(b)(1), (2), 371 (if conspiracy to defraud by 
interference with governmental functions), 872, 1341 (if the scheme or 
artifice to defraud was to deprive another of the intangible right of 
honest services of a public official), 1342 (if the scheme or artifice 
to defraud was to deprive another of the intangible right of honest 
services of a public official), 1343 (if the scheme or artifice to 
defraud was to deprive another of the intangible right of honest 
services of a public official), 1951. For additional statutory 
provision(s), see Appendix A (Statutory Index).
    Application Notes:
    1. Definitions.--For purposes of this guideline:
    ``Government 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.
    ``Payment'' means anything of value. A payment need not be 
monetary.
    ``Public official'' shall be construed broadly and includes the 
following:
    (A) ``Public official'' as defined in 18 U.S.C. Sec.  201(a)(1).
    (B) A member of a state or local legislature. ``State'' means a 
State of the United States, and any commonwealth, territory, or 
possession of the United States.
    (C) An officer or employee or person acting for or on behalf of a 
state or local government, or any department, agency, or branch of 
government thereof, in any official function, under or by authority of 
such department, agency, or branch of government, or a juror in a state 
or local trial.
    (D) Any person who has been selected to be a person described in 
subdivisions (A), (B), or (C), either before or after such person has 
qualified.
    (E) An individual who, although not otherwise covered by 
subdivisions (A) through (D): (i) Is in a position of public trust with 
official responsibility for carrying out a government program or 
policy; (ii) acts under color of law or official right; or (iii) 
participates so substantially in government operations as to possess de 
facto authority to make governmental decisions (e.g., which may include 
a leader of a state or local political party who acts in the manner 
described in this subdivision).
    2. More than One Bribe or Extortion.--Subsection (b)(1) provides an 
adjustment for offenses involving more than one incident of either 
bribery or extortion. Related payments that, in essence, constitute a 
single incident of bribery or extortion (e.g., a number of installment 
payments for a single action) are to be treated as a single bribe or 
extortion, even if charged in separate counts.
    In a case involving more than one incident of bribery or extortion, 
the applicable amounts under subsection (b)(2) (i.e., the greatest of 
the value of the payment, the benefit received or to be received, the 
value of anything obtained or to be obtained by a public official or 
others acting with a public official, or the loss to the government) 
are determined separately for each incident and then added together.
    3. Application of Subsection (b)(2).--``Loss'', for purposes of 
subsection (b)(2)(A), shall be determined in accordance with 
Application Note 3 of the Commentary to Sec.  2B1.1 (Theft, Property 
Destruction, and Fraud). The value of `the benefit received or to be 
received' means the net value of such benefit. Examples: (1) A 
government employee, in return for a $500 bribe, reduces the price of a 
piece of surplus property offered for sale by the government from 
$10,000 to $2,000; the value of the benefit received is $8,000. (2) A 
$150,000 contract on which $20,000 profit was made was awarded in 
return for a bribe; the value of the benefit received is $20,000. Do 
not deduct the value of the bribe itself in computing the value of the 
benefit received or to be received. In the preceding examples, 
therefore, the value of the benefit received would be the same 
regardless of the value of the bribe.
    4. Application of Subsection (b)(3).--
    (A) Definition.--``High-level decision-making or sensitive 
position'' means a position characterized by a direct authority to make 
decisions for, or on behalf of, a government department, agency, or 
other government entity, or by a substantial influence over the 
decision-making process.
    (B) Examples.--Examples of a public official in a high-level 
decision-making position include a prosecuting attorney, a judge, an 
agency administrator, and any other public official with a similar 
level of authority. Examples of a public official who holds a sensitive 
position include a juror, a law enforcement officer, an election 
official, and any other similarly situated individual.
    5. Application of Subsection (c).--For the purposes of determining 
whether to apply the cross references in this section, the ``resulting 
offense level'' means the final offense level (i.e., the offense level 
determined by taking into account both the Chapter Two offense level 
and any applicable adjustments from Chapter Three, Parts A-D). See 
Sec.  1B1.5(d); Application Note 2 of the Commentary to Sec.  1B1.5 
(Interpretation of References to Other Offense Guidelines).
    6. Inapplicability of Sec.  3B1.3.--Do not apply Sec.  3B1.3 (Abuse 
of Position of Trust or Use of Special Skill).
    7. Upward Departure Provisions.--In some cases the monetary value 
of the unlawful payment may not be known or may not adequately reflect 
the seriousness of the offense. For example, a small payment may be 
made in exchange for the falsification of inspection records for a 
shipment of defective parachutes or the destruction of evidence in a 
major narcotics case. In part, this issue is addressed by the 
enhancements in Sec.  2C1.1(b)(2) and (c)(1), (2), and (3). However, in 
cases in which the seriousness of the offense is still not adequately 
reflected, an upward departure is warranted. See Chapter Five, Part K 
(Departures).
    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).
    Background: This section applies to a person who offers or gives a 
bribe for a corrupt purpose, such as inducing a public official to 
participate in a fraud or to influence such individual's official 
actions, or to a public official who solicits or accepts such a bribe.
    The object and nature of a bribe may vary widely from case to case. 
In some cases, the object may be commercial advantage (e.g., 
preferential treatment in the award of a government contract). In

[[Page 29011]]

others, the object may be issuance of a license to which the recipient 
is not entitled. In still others, the object may be the obstruction of 
justice. Consequently, a guideline for the offense must be designed to 
cover diverse situations.
    In determining the net value of the benefit received or to be 
received, the value of the bribe is not deducted from the gross value 
of such benefit; the harm is the same regardless of value of the bribe 
paid to receive the benefit. In a case in which the value of the bribe 
exceeds the value of the benefit, or in which the value of the benefit 
cannot be determined, the value of the bribe is used because it is 
likely that the payer of such a bribe expected something in return that 
would be worth more than the value of the bribe. Moreover, for 
deterrence purposes, the punishment should be commensurate with the 
gain to the payer or the recipient of the bribe, whichever is greater.
    Under Sec.  2C1.1(b)(3), if the payment was for the purpose of 
influencing an official act by certain officials, the offense level is 
increased by 4 levels.
    Under Sec.  2C1.1(c)(1), if the payment was to facilitate the 
commission of another criminal offense, the guideline applicable to a 
conspiracy to commit that other offense will apply if the result is 
greater than that determined above. For example, if a bribe was given 
to a law enforcement officer to allow the smuggling of a quantity of 
cocaine, the guideline for conspiracy to import cocaine would be 
applied if it resulted in a greater offense level.
    Under Sec.  2C1.1(c)(2), if the payment was to conceal another 
criminal offense or obstruct justice in respect to another criminal 
offense, the guideline from Sec.  2X3.1 (Accessory After the Fact) or 
Sec.  2J1.2 (Obstruction of Justice), as appropriate, will apply if the 
result is greater than that determined above. For example, if a bribe 
was given for the purpose of concealing the offense of espionage, the 
guideline for accessory after the fact to espionage would be applied.
    Under Sec.  2C1.1(c)(3), if the offense involved forcible 
extortion, the guideline from Sec.  2B3.2 (Extortion by Force or Threat 
of Injury or Serious Damage) will apply if the result is greater than 
that determined above.
    Section 2C1.1 also applies to offenses under 15 U.S.C. Sec. Sec.  
78dd-1, 78dd-2, and 78dd-3. Such offenses generally involve a payment 
to a foreign public official, candidate for public office, or agent or 
intermediary, with the intent to influence an official act or decision 
of a foreign government or political party. Typically, a case 
prosecuted under these provisions will involve an intent to influence 
governmental action.
    Section 2C1.1 also applies to fraud involving the deprivation of 
the intangible right to honest services of government officials under 
18 U.S.C. Sec. Sec.  1341-1343 and conspiracy to defraud by 
interference with governmental functions under 18 U.S.C. Sec.  371. 
Such fraud offenses typically involve an improper use of government 
influence that harms the operation of government in a manner similar to 
bribery offenses.
    Offenses involving attempted bribery are frequently not completed 
because the offense is reported to authorities or an individual 
involved in the offense is acting in an undercover capacity. Failure to 
complete the offense does not lessen the defendant's culpability in 
attempting to use public position for personal gain. Therefore, 
solicitations and attempts are treated as equivalent to the underlying 
offense.
    Sec.  2C1.2. Offering, Giving, Soliciting, or Receiving a Gratuity
    (a) Base Offense Level:
    (1) 11, if the defendant was a public official; or
    (2) 9, otherwise.
    (b) Specific Offense Characteristics
    (1) If the offense involved more than one gratuity, increase by 2 
levels.
    (2) If the value of the gratuity 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 elected public official or any 
public official in a high-level decision-making or sensitive position, 
increase by 4 levels. If the resulting offense level is less than level 
15, increase to level 15.
    (4) If the defendant was a public official who facilitated (A) 
entry into the United States for a person, a vehicle, or cargo; (B) the 
obtaining of a passport or a document relating to naturalization, 
citizenship, legal entry, or legal resident status; or (C) the 
obtaining of a government identification document, increase by 2 
levels.
    (c) Special Instruction for Fines--Organizations
    (1) In lieu of the pecuniary loss under subsection (a)(3) of Sec.  
8C2.4 (Base Fine), use the value of the unlawful payment.

Commentary

    Statutory Provisions: 18 U.S.C. Sec. Sec.  201(c)(1), 212-214, 217. 
For additional statutory provision(s), see Appendix A (Statutory 
Index).
    Application Notes:
    1. Definitions.--For purposes of this guideline:
    ``Government 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.
    ``Public official'' shall be construed broadly and includes the 
following:
    (A) ``Public official'' as defined in 18 U.S.C. Sec.  201(a)(1).
    (B) A member of a state or local legislature.
    (C) An officer or employee or person acting for or on behalf of a 
state or local government, or any department, agency, or branch of 
government thereof, in any official function, under or by authority of 
such department, agency, or branch of government, or a juror.
    (D) Any person who has been selected to be a person described in 
subdivisions (A), (B), or (C), either before or after such person has 
qualified.
    (E) An individual who, although not otherwise covered by 
subdivisions (A) through (D): (i) is in a position of public trust with 
official responsibility for carrying out a government program or 
policy; (ii) acts under color of law or official right; or (iii) 
participates so substantially in government operations as to possess de 
facto authority to make governmental decisions (e.g., which may include 
a leader of a state or local political party who acts in the manner 
described in this subdivision).
    2. Application of Subsection (b)(1).--Related payments that, in 
essence, constitute a single gratuity (e.g., separate payments for 
airfare and hotel for a single vacation trip) are to be treated as a 
single gratuity, even if charged in separate counts.
    3. Application of Subsection (b)(3).--
    (A) Definition.--``High-level decision-making or sensitive 
position'' means a position characterized by a direct authority to make 
decisions for, or on behalf of, a government department, agency, or 
other government entity, or by a substantial influence over the 
decisionmaking process.
    (B) Examples.--Examples of a public official in a high-level 
decisionmaking position include a prosecuting attorney, a judge, an 
agency administrator, a law enforcement officer, and any other public 
official with a similar level of authority. Examples of a public 
official who holds a sensitive position include a juror, a law 
enforcement officer, an election official, and any other similarly 
situated individual.
    4. Inapplicability of Sec.  3B1.3.--Do not apply the adjustment in 
Sec.  3B1.3 (Abuse of Position or Trust or Use of Special Skill).

[[Page 29012]]

    Background: This section applies to the offering, giving, 
soliciting, or receiving of a gratuity to a public official in respect 
to an official act. 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, Subpart 1, is amended by striking Sec. Sec.  
2C1.6 and 2C1.7 and their 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. Sec.  212 by striking ``2C1.6'' 
and inserting ``2C1.2'';
    In the line referenced to 18 U.S.C. Sec.  213 by striking ``2C1.6'' 
and inserting ``2C1.2'';
    In the line referenced to 18 U.S.C. Sec.  214 by striking ``2C1.6'' 
and inserting ``2C1.2'';
    In the line referenced to 18 U.S.C. Sec.  217 by striking ``2C1.6'' 
and inserting ``2C1.2'';
    In the line referenced to 18 U.S.C. Sec.  371 by striking ``2C1.7'' 
and inserting ``2C1.1 (if conspiracy to defraud by interference with 
governmental functions)''; and by striking ``924(c)'' and inserting 
``924(c))'';
    In the line referenced to 18 U.S.C. Sec.  1341 by striking 
``2C1.7'' and inserting ``2C1.1'';
    In the line referenced to 18 U.S.C. Sec.  1342 by striking 
``2C1.7'' and inserting ``2C1.1'';
    In the line referenced to 18 U.S.C. Sec.  1343 by striking 
``2C1.7'' and inserting ``2C1.1'';
    In the line referenced to 18 U.S.C. Sec.  1909 by striking ``, 
2C1.4''; and
    In the line referenced to 41 U.S.C. Sec.  423(e) by striking ``, 
2C1.7''.
    Reason for Amendment: This amendment increases punishment for 
bribery, gratuity, and ``honest services'' cases while providing 
additional enhancements to address previously unrecognized aggravating 
factors inherent in some of these offenses. This amendment reflects the 
Commission's conclusion that, in general, public corruption offenses 
previously did not receive punishment commensurate with the gravity of 
such offenses. The amendment also ensures that punishment levels for 
public corruption offenses remain proportionate to those for closely 
analogous offenses sentenced under Sec.  2B1.1 (Larceny, Embezzlement, 
and Other Forms of Theft; Offenses Involving Stolen Property; Property 
Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving 
Altered or Counterfeit Instruments Other than Counterfeit Bearer 
Obligations of the United States) and Sec.  2J1.2 (Obstruction of 
Justice). To simplify guideline application, this amendment also 
consolidates Sec.  2C1.1 (Offering, Giving, Soliciting, or Receiving a 
Bribe; Extortion Under Color of Official Right) with Sec.  2C1.7 (Fraud 
Involving Deprivation of the Intangible Right to the Honest Services of 
Public Officials; Conspiracy to Defraud by Interference with 
Governmental Functions) and consolidates Sec.  2C1.2 (Offering, Giving, 
Soliciting, or Receiving a Gratuity) with Sec.  2C1.6 (Loan or Gratuity 
to Bank Examiner, or Gratuity for Adjustment of Farm Indebtedness, or 
Procuring Bank Loan, or Discount of Commercial Paper).
    Sections 2C1.1 and 2C1.2 each are amended to include alternative 
base offense levels, with an increase of two levels for public official 
defendants who violate their offices or responsibilities by accepting 
bribes, gratuities, or anything else of value. The higher alternative 
base offense levels for public officials reflect the Commission's view 
that offenders who abuse their positions of public trust are inherently 
more culpable than those who seek to corrupt them, and their offenses 
present a somewhat greater threat to the integrity of governmental 
processes.
    A specific offense characteristic in the former Sec. Sec.  2C1.1, 
2C1.2, and 2C1.7 that raised offense levels incrementally with the 
financial magnitude of the offense or, if greater, by eight levels for 
the defendant's status as a ``high-level decision-maker'' is replaced 
by two separate specific offense characteristics in the amended 
guidelines. These new specific offense characteristics for ``loss'' and 
``status'' are to be applied cumulatively when they both co-exist in 
the case. Their operation in tandem ensures that the offense level will 
always rise commensurate with the financial magnitude of the offense, 
and that all offenses involving ``an elected public official or any 
public official in a high-level decision-making or sensitive position'' 
will receive four additional offense levels and, when applicable, a 
minimum offense level of level 18 (in Sec.  2C1.1) or level 15 (in 
Sec.  2C1.2). The minimum offense level ensures that an offender 
sentenced under the amended guidelines will not receive a less severe 
sentence than a similarly situated offender under the former 
guidelines. Application notes and illustrative examples have been added 
to the amended guidelines to clarify the meaning of ``high-level 
decision-making or sensitive position.''
    A new specific offense characteristic has been added to Sec. Sec.  
2C1.1 and 2C1.2 that provides two additional offense levels when the 
offender is a public official whose position involves the security of 
the borders of the United States or the integrity of the process for 
generating documents related to naturalization, legal entry, legal 
residence, or other government identification documents. This specific 
offense characteristic recognizes the extreme sensitivity of these 
positions in light of heightened threats from international terrorism.
    5. Amendment: Section 2D1.1(b) is amended by redesignating 
subdivisions (5) and (6) as subdivisions (6) and (7), respectively; and 
by inserting after subdivision (4) the following:
    ``(5) If the defendant, or a person for whose conduct the defendant 
is accountable under Sec.  1B1.3 (Relevant Conduct), distributed a 
controlled substance through mass-marketing by means of an interactive 
computer service, increase by 2 levels.''.
    Section 2D1.1 is amended by adding after subsection (d) the 
following:
    ``(e) Special Instruction
    (1) If (A) subsection (d)(2) does not apply; and (B) the defendant 
committed, or attempted to commit, a sexual offense against another 
individual by distributing, with or without that individual's 
knowledge, a controlled substance to that individual, an adjustment 
under Sec.  3A1.1(b)(1) shall apply.''.
    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

[[Page 29013]]

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 
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'', and by striking ``gm'' and inserting ``ml''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended by striking Note 5 and inserting the following:
    ``5. Analogues and Controlled Substances Not Referenced in this 
Guideline.--Any reference to a particular controlled substance in these 
guidelines includes all salts, isomers, all salts of isomers, and, 
except as otherwise provided, any analogue of that controlled 
substance. Any reference to cocaine includes ecgonine and coca leaves, 
except extracts of coca leaves from which cocaine and ecgonine have 
been removed. For purposes of this guideline `analogue' has the meaning 
given the term `controlled substance analogue' in 21 U.S.C. Sec.  
802(32). In determining the appropriate sentence, the court also may 
consider whether a greater quantity of the analogue is needed to 
produce a substantially similar effect on the central nervous system as 
the controlled substance for which it is an analogue.
    In the case of a controlled substance that is not specifically 
referenced in this guideline, determine the base offense level using 
the marihuana equivalency of the most closely related controlled 
substance referenced in this guideline. In determining the most closely 
related controlled substance, the court shall, to the extent 
practicable, consider the following:
    (A) Whether the controlled substance not referenced in this 
guideline has a chemical structure that is substantially similar to a 
controlled substance referenced in this guideline.
    (B) Whether the controlled substance not referenced in this 
guideline has a stimulant, depressant, or hallucinogenic effect on the 
central nervous system that is substantially similar to the stimulant, 
depressant, or hallucinogenic effect on the central nervous system of a 
controlled substance referenced in this guideline.
    (C) Whether a lesser or greater quantity of the controlled 
substance not referenced in this guideline is needed to produce a 
substantially similar effect on the central nervous system as a 
controlled substance referenced in this guideline.''.
    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'' 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: 1 ml of gamma-hydroxybutyric acid = 8.8 gm 
of marihuana''.

    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 12 by striking the last sentence of the third paragraph 
and inserting the following:
    ``If, however, the defendant establishes that the defendant did not 
intend to provide or purchase, or was not reasonably capable of 
providing or purchasing, 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 
the defendant did not intend to provide or purchase or was not 
reasonably capable of providing or purchasing.''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``22. Application of Subsection (b)(5).--For purposes of subsection 
(b)(5), `mass-marketing by means of an interactive computer service' 
means the solicitation, by means of an interactive computer service, of 
a large number of persons to induce those persons to purchase a 
controlled substance. For example, subsection (b)(5) would apply to a 
defendant who operated a web site to promote the sale of Gamma-
hydroxybutyric Acid (GHB) but would not apply to coconspirators who use 
an interactive computer service only to communicate with one another in 
furtherance of the offense. `Interactive computer service', for 
purposes of subsection (b)(5) and this note, has the meaning given that 
term in section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. 
Sec.  230(f)(2)).
    ``23. Application of Subsection (e)(1).--
    ``(A) Definition.--For purposes of this guideline, `sexual offense' 
means a `sexual act' or `sexual contact' as those terms are defined in 
18 U.S.C. Sec.  2246(2) and (3), respectively.
    (B) Upward Departure Provision.--If the defendant committed a 
sexual offense against more than one individual, an upward departure 
would be warranted.''.
    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) or (f)(1), or Sec.  960(d)(2), (d)(3), or (d)(4),''.
    Section 2D1.11(b) is amended by adding at the end the following:
    ``(4) If the defendant, or a person for whose conduct the defendant 
is accountable under Sec.  1B1.3 (Relevant Conduct), distributed a 
listed chemical through mass-marketing by means of an interactive 
computer service, increase by 2 levels.''.
    Section 2D1.11(e) is amended in subdivision (1) by striking 
``10,000 KG or more of Gamma-butyrolactone;'' and inserting ``2271 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 681.3 L 
but less than 2271 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 227.1 L but 
less than 681.3 L of Gamma-butyrolactone;''; and by inserting ``, White 
Phosphorus, or 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 159 L but 
less than 227.1 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 90.8 L but less 
than 159 L of Gamma-

[[Page 29014]]

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 22.7 L but less 
than 90.8 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 18.2 L but less 
than 22.7 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 13.6 L but less than 
18.2 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 9.1 L but less than 
13.6 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 9.1 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. Sec. Sec.  841(d)(2), (g)(1), 
and 960(d)(2)'' and inserting ``21 U.S.C. Sec. Sec.  841(c)(2) and 
(f)(1), and 960(d)(2), (d)(3), and (d)(4)''; and by striking ``Where'' 
and inserting ``In a case in which''.
    The Commentary to Sec.  2D1.11 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``7. Application of Subsection (b)(4).--For purposes of subsection 
(b)(4), `mass-marketing by means of an interactive computer service' 
means the solicitation, by means of an interactive computer service, of 
a large number of persons to induce those persons to purchase a 
controlled substance. For example, subsection (b)(4) would apply to a 
defendant who operated a web site to promote the sale of Gamma-
butyrolactone (GBL) but would not apply to coconspirators who use an 
interactive computer service only to communicate with one another in 
furtherance of the offense. `Interactive computer service', for 
purposes of subsection (b)(4) and this note, has the meaning given that 
term in section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. 
Sec.  230(f)(2)).''.
    Section 2D1.12(b) is amended by adding at the end the following:
    ``(3) If the defendant, or a person for whose conduct the defendant 
is accountable under Sec.  1B1.3 (Relevant Conduct), distributed any 
prohibited flask, equipment, chemical, product, or material through 
mass-marketing by means of an interactive computer service, increase by 
2 levels.
    (4) If the offense involved stealing anhydrous ammonia or 
transporting stolen anhydrous ammonia, increase by 6 levels.''.
    The Commentary to Sec.  2D1.12 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``4. Application of Subsection (b)(3).--For purposes of subsection 
(b)(3), `mass-marketing by means of an interactive computer service' 
means the solicitation, by means of an interactive computer service, of 
a large number of persons to induce those persons to purchase a 
controlled substance. For example, subsection (b)(3) would apply to a 
defendant who operated a web site to promote the sale of prohibited 
flasks but would not apply to coconspirators who use an interactive 
computer service only to communicate with one another in furtherance of 
the offense. `Interactive computer service', for purposes of subsection 
(b)(3) and this note, has the meaning given that term in section 
230(e)(2) of the Communications Act of 1934 (47 U.S.C. Sec.  
230(f)(2)).''.
    Appendix A (Statutory Index) is amended by striking the following: 
``21 U.S.C. Sec.  957 2D1.1''.
    Reason for Amendment: This amendment makes several modifications to 
the guidelines in Chapter Two, Part D (Offenses Involving Drugs). 
First, this amendment implements section 608 of the Prosecutorial 
Remedies and Other Tools to end the Exploitation of Children Today Act 
of 2003, (the ``PROTECT Act''), Pub. L. 108-21, which directs the 
Commission to review and consider amending the guidelines with respect 
to gamma-hydroxybutyric acid (GHB) to provide increased penalties that 
reflect the seriousness of offenses involving GHB and the need to deter 
them. The Commission identified several harms associated with GHB 
offenses and separately increased penalties for Internet trafficking 
and drug facilitated sexual assault, two harms associated with 
trafficking and use of this and other controlled substances. 
Specifically, the amendment modifies Sec.  2D1.1 (Unlawful 
Manufacturing, Importing, Exporting, or Trafficking (Including 
Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy) to provide an approximate five-year term of imprisonment 
(equivalent to base offense level 26, Criminal History Category I) for 
distribution of three gallons of GHB. The Commission determined, based 
on information provided by the Drug Enforcement Administration, that 
this quantity typically reflects a mid-level distributor. The trigger 
for the ten-year penalty (base offense level 32) is set at 30 gallons, 
reflecting quantities associated with a high-level distributor. This 
amendment also increases the penalties under Sec.  2D1.11 (Unlawfully 
Distributing, Importing, Exporting or Possessing a Listed Chemical; 
Attempt or Conspiracy) for offenses involving gamma-butyrolactone 
(GBL), a precursor for GHB. The quantities in Sec.  2D1.11 track the 
quantities used in Sec.  2D1.1.
    Second, this amendment adds a two-level enhancement in Sec. Sec.  
2D1.1, 2D1.11, and 2D1.12 (Unlawful Possession, Manufacture, 
Distribution, Transportation, Exportation, or Importation of Prohibited 
Flask, Equipment, Chemical, Product, or Material; Attempt or 
Conspiracy) for mass marketing of a controlled substance, listed 
chemical, or prohibited equipment, respectively, through the use of an 
interactive computer service. The Commission identified use of an 
interactive computer service as a tool providing easier access to 
illegal products. Use of an interactive computer service enables drug 
traffickers to market their illegal products more efficiently and 
anonymously to a wider audience than through traditional drug 
trafficking means, while making it more difficult for law enforcement 
authorities to discover the offense and apprehend the offenders.
    Third, this amendment provides a special instruction in Sec.  
2D1.1(e) that requires application of the vulnerable victim adjustment 
in Sec.  3A1.1(b)(1) (Hate Crime Motivation or Vulnerable Victim) if 
the defendant commits a sexual offense by distributing a controlled 
substance to another individual, with or without that individual's 
knowledge. The amendment addresses cases in which the cross reference 
in

[[Page 29015]]

Sec.  2D1.1(d)(2) does not apply. The cross reference in Sec.  
2D1.1(d)(2) is limited to cases involving a conviction under 21 U.S.C. 
Sec.  841(b)(7), which prescribes a 20-year statutory maximum penalty 
for the distribution of a controlled substance to another individual, 
without that individual's knowledge, with the intent to commit a crime 
of violence (including rape). Because the statute requires that the 
distribution occur without knowledge, the cross reference does not 
apply to drug facilitated sexual assaults when the victim of the sexual 
assault knowingly ingests the controlled substance. This amendment 
reflects the Commission's view that a defendant who commits a drug-
facilitated sexual assault should receive increased punishment whether 
or not the victim knowingly ingested the controlled substance 
distributed by the defendant.
    Fourth, this amendment modifies the existing rule at Application 
Note 5 of Sec.  2D1.1 to provide a uniform mechanism for determining 
sentences in cases involving analogues of controlled substances or 
controlled substances not specifically referenced in this guideline. 
The genesis of this amendment was the Commission's investigation of 
GHB, during which the Commission learned that analogues of GHB, 
specifically GBL and 1,4 Butanediol (BD), among others, often are used 
in its stead and cause the same effects as GHB. The Commission was 
concerned that analogues of other drugs might be similarly used. 
Additionally, the Commission became aware that courts employ a variety 
of means to determine the applicable guideline range for defendants 
charged with offenses involving controlled substances not specifically 
referenced in Sec.  2D1.1, resulting in disparate sentences. The 
purpose of the amendment is to provide a more uniform mechanism for 
determining sentences in cases involving analogues or controlled 
substances not specifically referenced in this guideline.
    Fifth, this amendment corrects a technical error in the Drug 
Quantity Table at Sec.  2D1.1(c) with respect to Schedule III 
substances. Specifically, the maximum base offense level for Schedule 
III substances is level 20, but prior to the amendment there was no 
corresponding language in the Drug Quantity Table to so indicate.
    Sixth, this amendment addresses a circuit conflict regarding the 
interpretation of the last sentence in Application Note 12 of Sec.  
2D1.1. See United States v. Smack, 347 F.3d 533 (3rd Cir. 2003) 
(criticizing language of note); compare United States v. Gomez, 103 
F.3d 249, 252-53 (2d Cir. 1997) (holding that the last sentence of the 
note is intended to apply 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), with 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). 
Application Note 12 covers offenses involving an agreement to sell a 
specific quantity of a controlled substance. This amendment makes clear 
that the court shall exclude from the offense level determination the 
amount of the controlled substance, if any, that the defendant 
establishes that he or she did not intend to provide or purchase, or 
was not reasonably capable of providing or purchasing, regardless of 
whether the defendant agreed to be the seller or the buyer of the 
controlled substance.
    Seventh, this amendment updates the statutory references in Sec.  
2D1.11(b)(2) and accompanying commentary to conform to statutory 
redesignations of certain offenses, and also expands application of 
Sec.  2D1.11(b)(2) to include 21 U.S.C. Sec.  960(d)(3) and (d)(4) 
among the statutes of conviction for which the three-level reduction at 
subsection (b)(2) is available. The reduction formerly applied in cases 
in which the defendant, convicted under 21 U.S.C. Sec.  841(c)(2), 
(f)(1), or Sec.  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. Given that the 
reduction applies in 21 U.S.C. Sec.  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. Sec.  841(c)(2) is 
the same as in 21 U.S.C. Sec.  960(d)(3) and (d)(4), the amendment adds 
21 U.S.C. Sec.  960(d)(3) and (d)(4) to Sec.  2D1.11(b)(2).
    Eighth, this amendment adds white phosphorus and hypophosphorous 
acid to the Chemical Quantity Table in Sec.  2D1.11(e). Both substances 
are List I chemicals that can be substituted for red phosphorus in the 
manufacture of methamphetamine. Red phosphorus was added to the 
Chemical Quantity Table effective November 1, 2003 (see Amendment 661), 
but notice and comment requirements prevented white phosphorus and 
hypophosphorous acid from being added contemporaneously.
    Ninth, this amendment provides an enhancement of six levels at 
Sec.  2D1.12 if the offense involved stealing anhydrous ammonia or 
transporting stolen anhydrous ammonia. A widely used source of nitrogen 
fertilizer for crops, anhydrous ammonia also is used in the manufacture 
of methamphetamine. Anhydrous ammonia must be stored and handled under 
high pressure, which requires specially designed and well-maintained 
equipment. The improper handling and storage of anhydrous ammonia can 
result in permanent injury (such as cell destruction and severe 
chemical burns) and explosions. Methamphetamine manufacturers often 
obtain anhydrous ammonia by siphoning large-volume tanks at fertilizer 
plants and farms, and rarely have the knowledge or equipment required 
to properly handle it. This enhancement accounts for the inherent 
dangers created by such conduct, as well as the likely intended 
unlawful use.
    Finally, this amendment modifies Appendix A (Statutory Index) by 
deleting the reference to 21 U.S.C. Sec.  957, which is not a 
substantive criminal offense, but rather a registration provision for 
which violations are prosecuted under 21 U.S.C. Sec.  960(a) or (b) 
(for controlled substances) or Sec.  960(d)(6) (for listed chemicals).
    6. Amendment: Section 2D1.1(a) is amended by striking subdivision 
(3) and inserting the following:
    ``(3) The offense level specified in the Drug Quantity Table set 
forth in subsection (c), except that if (A) the defendant receives an 
adjustment under Sec.  3B1.2 (Mitigating Role); and (B) the base 
offense level under subsection (c) is (i) level 32, decrease by 2 
levels; (ii) level 34 or level 36, decrease by 3 levels; or (iii) level 
38, decrease by 4 levels.''.
    Section 2D1.11 is amended by striking subsection (a) and inserting 
the following:
    ``(a) Base Offense Level: The offense level from the Chemical 
Quantity Table set forth in subsection (d) or (e), as appropriate, 
except that if (A) the defendant receives an adjustment under Sec.  
3B1.2 (Mitigating Role); and (B) the base offense level under 
subsection (e) is (i) level 32, decrease by 2 levels; (ii) level 34 or 
level 36, decrease by 3 levels; or (iii) level 38, decrease by 4 
levels.''.

[[Page 29016]]

    Reason for Amendment: The amendment modifies the maximum base 
offense level for certain offenders provided at Sec.  2D1.1(a)(3) 
(Unlawful Manufacturing, Importing, Exporting, or Trafficking 
(Including Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy). Prior to the amendment, subsection (a)(3) limited the 
maximum base offense level to level 30 for all offenders sentenced 
under Sec.  2D1.1 who also received an adjustment under Sec.  3B1.2 
(Mitigating Role). In order to address proportionality concerns arising 
from the ``mitigating role cap,'' the amendment modifies Sec.  
2D1.1(a)(3) to provide a graduated reduction for offenders whose 
quantity level under Sec.  2D1.1(c) results in a base offense level 
greater than level 30 and who qualify for a mitigating role adjustment 
under Sec.  3B1.2. Specifically, the amendment provides a two-level 
reduction if the defendant receives an adjustment under Sec.  3B1.2 and 
the base offense level determined at the Drug Quantity Table in Sec.  
2D1.1 is level 32. If the base offense level determined at Sec.  
2D1.1(c) is level 34 or 36, and the defendant receives an adjustment 
under Sec.  3B1.2, a three-level reduction is provided. A four-level 
reduction is provided if the defendant receives an adjustment under 
Sec.  3B1.2 and the base offense level under Sec.  2D1.1(c) is level 
38. This amendment also provides an identical reduction in Sec.  2D1.11 
(Unlawfully Distributing, Importing, Exporting or Possessing a Listed 
Chemical; Attempt or Conspiracy).
    7. Amendment: Section 2K2.1(b) is amended by striking subdivision 
(3) and inserting the following:
    ``(3) If the offense involved--
    (A) A destructive device that is a portable rocket, a missile, or a 
device for use in launching a portable rocket or a missile, increase by 
15 levels; or
    (B) A destructive device other than a destructive device referred 
to in subdivision (A), increase by 2 levels.''.
    Section 2K2.1(b) is amended by striking the paragraph that begins 
``Provided, that the'' and inserting the following:
    ``The cumulative offense level determined from the application of 
subsections (b)(1) through (b)(4) may not exceed level 29, except if 
subsection (b)(3)(A) applies.''.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended by striking Notes 1 through 4; and by redesignating Note 5 as 
Note 1.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended in Note 1, as redesignated by this amendment, by inserting 
Definitions.--''before ``For purposes of this guideline:''; by 
inserting before `` `Controlled substance offense' '' the following 
paragraph: `` `Ammunition' has the meaning given that term in 18 U.S.C. 
Sec.  921(a)(17)(A).'';
    By inserting after the paragraph that begins `` `Crime of violence' 
'' the following paragraph: `` `Destructive device' has the meaning 
given that term in 26 U.S.C. Sec.  5845(f).'';
    And by adding at the end, the following paragraph: `` `Firearm' has 
the meaning given that term in 18 U.S.C. Sec.  921(a)(3).''.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended by inserting after Note 1, as redesignated by this amendment, 
the following:
    ``2. Firearm Described in 18 U.S.C. Sec.  921(a)(30).--For purposes 
of subsection (a), a `firearm described in 18 U.S.C. Sec.  921(a)(30)' 
(pertaining to semiautomatic assault weapons) does not include a weapon 
exempted under the provisions of 18 U.S.C. Sec.  922(v)(3).''.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended by redesignating Notes 6 through 19 as Notes 3 through 16, 
respectively.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended in Note 8, as redesignated by this amendment, by striking ``a 
two-level'' and inserting ``the applicable''; and by adding at the end 
the following paragraph:
    ``Offenses involving such devices cover a wide range of offense 
conduct and involve different degrees of risk to the public welfare 
depending on the type of destructive device involved and the location 
or manner in which that destructive device was possessed or 
transported. For example, a pipe bomb in a populated train station 
creates a substantially greater risk to the public welfare, and a 
substantially greater risk of death or serious bodily injury, than an 
incendiary device in an isolated area. In a case in which the 
cumulative result of the increased base offense level and the 
enhancement under subsection (b)(3) does not adequately capture the 
seriousness of the offense because of the type of destructive device 
involved, the risk to the public welfare, or the risk of death or 
serious bodily injury that the destructive device created, an upward 
departure may be warranted. See also, Sec. Sec.  5K2.1 (Death), 5K2.2 
(Physical Injury), and 5K2.14 (Public Welfare).''.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended in Note 13, as redesignated by this amendment, by inserting 
``(see Application Note 8)'' after ``multiple individuals''.
    Section 2X1.1 is amended by striking subsection (d) and inserting 
the following:
    ``(d) Special Instruction
    (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. Sec.  2332b(g)(5): 18 U.S.C. Sec.  81; 18 U.S.C. Sec.  930(c); 
18 U.S.C. Sec.  1362; 18 U.S.C. Sec.  1363; 18 U.S.C. Sec.  1992; 18 
U.S.C. Sec.  2339A; 18 U.S.C. Sec.  2340A; 49 U.S.C. Sec.  46504; 49 
U.S.C. Sec.  46505; and 49 U.S.C. Sec.  60123(b).
    (B) Any of the following offenses: 18 U.S.C. Sec.  32; 18 U.S.C. 
Sec.  1993; and 18 U.S.C. Sec.  2332a.''.
    Appendix A (Statutory Index) is amended in the line referenced to 
18 U.S.C. Sec.  1993(a)(8) by inserting ``2A5.2 (if attempt or 
conspiracy to commit 18 U.S.C. Sec.  1993(a)(4), (a)(5), or (a)(6)),'' 
before ``2A6.1''.
    Reason for Amendment: Before promulgation of this amendment, 
subsection (b)(3) of Sec.  2K2.1 (Unlawful Receipt, Possession, or 
Transportation of Firearms or Ammunition; Prohibited Transactions 
Involving Firearms or Ammunition) generally provided a two-level 
enhancement if the offense involved a destructive device, without 
regard to the type of destructive device involved. This amendment 
increases that enhancement to 15 levels if the destructive device was a 
man-portable air defense system (MANPADS), portable rocket, missile, or 
device used for launching a portable rocket or missile. It maintains 
the two-level enhancement for all other destructive devices. MANPADS 
and similar weapons are highly regulated under chapter 53 of title 26, 
United States Code, and chapter 44 of title 18, United States Code, and 
are classified as ``destructive devices'' under 26 U.S.C. Sec.  
5845(f).
    This amendment responds to concerns that these types of weapons, 
which have been used overseas, have the ability to inflict death or 
injury on large numbers of persons if fired at an aircraft, train, 
building, or similar target. Because of the inherent risks of such 
weapons and the fact that there is no legitimate reason to possess 
them, the Commission determined that the statutory maximum penalty for 
possession of such devices should apply in all such offenses, even 
after possible application of acceptance of responsibility. The 
amendment also re-designates Application Note 11 as Application Note 8, 
and adds an invited upward departure for non-MANPADS destructive 
devices in a case in which the two-level enhancement for such devices 
does not adequately capture the

[[Page 29017]]

seriousness of the offense because of the type of destructive device 
involved, the risk to public welfare, and the risk of death or serious 
bodily injury that the destructive device created. Furthermore, in 
response to concerns that it is unclear whether certain types of 
firearms qualify as ``destructive devices'' using the guideline 
definition of ``destructive device,'' the amendment adopts the 
statutory definition provided in 26 U.S.C. Sec.  5845(f). For 
consistency, similar statutory definitions are substituted for the 
definitions of ``ammunition'' and ``firearm.''
    The amendment also increases guideline penalties for attempts and 
conspiracies to commit certain offenses if those offenses involved the 
use of a MANPADS or similar destructive device. Affected offenses 
include 18 U.S.C. Sec.  32 (Destruction of aircraft or aircraft 
facilities), 18 U.S.C. Sec.  1993 (Terrorist attacks and other acts of 
violence against mass transportation systems), and 18 U.S.C. Sec.  
2332a (Use of certain weapons of mass destruction). The Commission 
amended the special instruction in subsection (d) of Sec.  2X1.1 
(Attempt, Solicitation, or Conspiracy (Not Covered by a Specific 
Offense Guideline)) 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.
    Finally, the amendment modifies the Statutory Index (Appendix A) 
reference for convictions under 18 U.S.C. Sec.  1993(a)(8), relating to 
attempts, threats, or conspiracies to commit any of the substantive 
terrorist offenses in 18 U.S.C. Sec.  1993(a). Under this amendment, 
these offenses will be referred to Sec.  2A5.2 (Interference with 
Flight Crew Member or Flight Attendant; Interference with Dispatch, 
Operation, or Maintenance of Mass Transportation Vehicle or Ferry) 
rather than Sec.  2A6.1 (Threatening or Harassing Communications).
    8. 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: 10
    (b) Specific Offense Characteristic
    (1) If the defendant used the body armor in connection with another 
felony offense, increase by 4 levels.

Commentary

    Statutory Provision: 18 U.S.C. Sec.  931.
    Application Notes:
    1. Application of Subsection (b)(1).--
    (A) Meaning of ``Defendant''.--Consistent with Sec.  1B1.3 
(Relevant Conduct), the term `defendant', for purposes of subsection 
(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.
    (B) Meaning of ``Felony Offense''.--For purposes of subsection 
(b)(1), `felony offense' means any offense (federal, state, or local) 
punishable by imprisonment for a term exceeding one year, regardless of 
whether a criminal charge was brought, or a conviction obtained.
    (C) Meaning of ``Used''.--For purposes of subsection (b)(1), `used' 
means the body armor was (i) actively employed in a manner to protect 
the person from gunfire; or (ii) used as a means of bartering. 
Subsection (b)(1) does not apply if the body armor was merely 
possessed. For example, subsection (b)(1) would not apply if the body 
armor was found in the trunk of a car but was not being actively used 
as protection.
    2. Inapplicability of Sec.  3B1.5.--If subsection (b)(1) applies, 
do not apply the adjustment in Sec.  3B1.5 (Use of Body Armor in Drug 
Trafficking Crimes and Crimes of Violence).
    3. Grouping of Multiple Counts.--If subsection (b)(1) applies 
(because the defendant used the body armor in connection with another 
felony offense) and the instant offense of conviction includes a count 
of conviction for that other felony offense, the counts of conviction 
for the 18 U.S.C. Sec.  931 offense and that other felony offense shall 
be grouped pursuant to subsection (c) of Sec.  3D1.2 (Groups of Closely 
Related Counts).''.
    The Commentary to Sec.  3B1.5 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``3. Interaction with Sec.  2K2.6 and Other Counts of Conviction.--
If the defendant is convicted only of 18 U.S.C. Sec.  931 and receives 
an enhancement under subsection (b)(1) of Sec.  2K2.6 (Possessing, 
Purchasing, or Owning Body Armor by Violent Felons), do not apply an 
adjustment under this guideline. However, if, in addition to the count 
of conviction under 18 U.S.C. Sec.  931, the defendant (A) is convicted 
of an offense that is a drug trafficking crime or a crime of violence; 
and (B) used the body armor with respect to that offense, an adjustment 
under this guideline shall apply with respect to that offense.''.
    Reason for Amendment: This amendment addresses the new offense at 
18 U.S.C. Sec.  931, which was created by section 11009 of the 21st 
Century Department of Justice Appropriations Authorization Act, Pub. L. 
107-273. Section 931 of title 18, United States Code, prohibits the 
purchase, ownership, or possession of body armor by individuals who 
have been convicted of either a federal or state felony that is a crime 
of violence. The statutory maximum term of imprisonment for 18 U.S.C. 
Sec.  931 is three years.
    This amendment creates a new guideline at Sec.  2K2.6 (Possessing, 
Purchasing, or Owning Body Armor by Violent Felons) because there is no 
guideline that covers conduct sufficiently analogous to the conduct 
constituting a violation of 18 U.S.C. Sec.  931.
    The new guideline provides a base offense level of 10 because 18 
U.S.C. Sec.  931 offenses have lesser statutory maximum punishments 
than offenses involving weapon possession and trafficking. Those 
offenses, which are sentenced at Sec.  2K2.1 (Unlawful Receipt, 
Possession, or Transportation of Firearms or Ammunition; Prohibited 
Transactions Involving Firearms or Ammunition), have a base offense 
level of 12 if there is no aggravating circumstance present in the 
case.
    The new guideline provides a four-level increase at Sec.  
2K2.6(b)(1) ``[i]f the defendant used the body armor in connection with 
another felony offense'' because violations in which the body armor was 
used in connection with another felony offense are more serious than 
those involving only possession, purchase, or ownership of body armor. 
``Felony offense'' is defined as ``any offense (federal, state, or 
local) punishable by imprisonment for a term exceeding one year'' and 
does not require that a charge be brought or a conviction sustained.
    The commentary also provides guidance for the scope of the terms 
``defendant'' and ``used'' for purposes of Sec.  2K2.6(b)(1). Use of 
the term ``defendant'' 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 term ``used'' requires that the body armor be actively used in 
order to protect from gunfire or be used as a means of bartering. 
Finally, the commentary provides that when subsection (b)(1) applies 
and the defendant also is convicted of the underlying offense (the 
offense with respect to which the body armor was used), the counts 
shall be grouped pursuant to subsection (c) of Sec.  3D1.2 (Groups of 
Closely Related Counts).
    Section 3B1.5 (Use of Body Armor in Drug Trafficking Crimes and 
Crimes of

[[Page 29018]]

Violence) has been amended so that the adjustment in that guideline 
does not apply with respect to the 18 U.S.C. Sec.  931 offense. 
However, if the defendant is convicted of the offense with respect to 
which the body armor was used, Sec.  3B1.5 will apply to that offense.
    9. Amendment: Section 2L2.2(b) is amended by adding at the end the 
following:
    ``(3) If the defendant fraudulently obtained or used a United 
States passport, increase by 4 levels.''.
    The Commentary to Sec.  2L2.2 captioned ``Application Notes'' is 
amended by striking Note 1 and inserting the following:
    ``1. Definition.--For purposes of this guideline, `immigration and 
naturalization offense' means any offense covered by Chapter Two, Part 
L.''; by striking Note 2, and redesignating Note 3 as Note 2; and in 
Note 2, as redesignated by this amendment, by inserting ``Application 
of Subsection (b)(2).--'' before ``Prior''.
    The Commentary to Sec.  2L2.2 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``3. Application of Subsection (b)(3).--The term `used' is to be 
construed broadly and includes the attempted renewal of previously-
issued passports.
    4. Multiple Counts.--For the purposes of Chapter Three, Part D 
(Multiple Counts), a count of conviction for unlawfully entering or 
remaining in the United States covered by Sec.  2L1.2 (Unlawfully 
Entering or Remaining in the United States) arising from the same 
course of conduct as the count of conviction covered by this guideline 
shall be considered a closely related count to the count of conviction 
covered by this guideline, and therefore is to be grouped with the 
count of conviction covered by this guideline.
    5. Upward Departure Provision.--If the defendant fraudulently 
obtained or used a United States passport for the purpose of entering 
the United States to engage in terrorist activity, an upward departure 
may be warranted. See Application Note 4 of the Commentary to Sec.  
3A1.4 (Terrorism).''.
    Reason for Amendment: The purpose of this amendment is to provide 
increased punishment for defendants who fraudulently use or obtain 
United States passports. The amendment adds a new specific offense 
characteristic at subsection (b)(3) of Sec.  2L1.1 (Smuggling, 
Transporting, or Harboring an Unlawful Alien) that provides an increase 
of four levels if the defendant fraudulently obtained or used a United 
States passport. Application Note 3 clarifies that ``use'' is to be 
construed broadly and includes the attempted renewal of a previously 
issued United States passport. Application Note 5 invites an upward 
departure if the defendant fraudulently obtained or used a United 
States passport with the intent to engage in terrorist activity.
    This amendment responds to comments received from the Departments 
of State and Justice to the effect that maintaining the integrity of 
United States passports is at the core of United States border and 
security efforts. Accordingly, this amendment ensures increased 
punishment for those defendants who threaten the security of the United 
States by their fraudulent abuse of United States passports.
    10. Amendment: Section 2Q1.2(b) is amended by adding at the end the 
following:
    ``(7) If the defendant was convicted under 49 U.S.C. Sec.  5124 or 
Sec.  46312, increase by 2 levels.''.
    The Commentary to Sec.  2Q1.2 captioned ``Statutory Provisions'' is 
amended by striking ``; 49 U.S.C. Sec.  60123(d)'' and inserting ``; 49 
U.S.C. Sec. Sec.  5124, 46312''.
    The Commentary to Sec.  2Q1.2 captioned ``Application Notes'' is 
amended by striking Note 9 and inserting the following:
    ``9. Other Upward Departure Provisions.--
    (A) Civil Adjudications and Failure to Comply with Administrative 
Order.--In a case in which the defendant has previously engaged in 
similar misconduct established by a civil adjudication or has failed to 
comply with an administrative order, an upward departure may be 
warranted. See Sec.  4A1.3 (Departures Based on Inadequacy of Criminal 
History Category).
    (B) Extreme Psychological Injury.--If the offense caused extreme 
psychological injury, an upward departure may be warranted. See Sec.  
5K2.3 (Extreme Psychological Injury).
    (C) Terrorism.--If the offense was calculated to influence or 
affect the conduct of government by intimidation or coercion, or to 
retaliate against government conduct, an upward departure would be 
warranted. See Application Note 4 of the Commentary to Sec.  3A1.4 
(Terrorism).''.
    Reason for Amendment: This amendment adds a two-level enhancement 
in Sec.  2Q1.2 (Mishandling of Hazardous or Toxic Substances or 
Pesticides; Recordkeeping, Tampering, and Falsification; Unlawfully 
Transporting Hazardous Materials in Commerce) for offenders convicted 
under 49 U.S.C. Sec.  5124 or Sec.  46312. These offenses pose an 
inherent risk to large populations in a manner not typically associated 
with other pollution offenses sentenced under the same guideline.
    In addition, this amendment adds an application note inviting an 
upward departure if the offense was calculated to influence or affect 
the conduct of the government by intimidation or coercion, or to 
retaliate against government conduct. The Commission added this 
departure provision to address concerns that terrorists may commit 
hazardous material transportation offenses because of their potential 
to cause a one-time, catastrophic event. The upward departure provision 
would apply in cases in which a defendant who has a terrorist motive is 
not also convicted of a ``federal crime of terrorism'' that would 
trigger application of Sec.  3A1.4 (Terrorism).
    This amendment also adds an upward departure provision that could 
apply if the offense resulted in extreme psychological injury. This 
provision conforms to the upward departure provision found at Sec.  
2Q1.4 (Tampering or Attempted Tampering with a Public Water System; 
Threatening to Tamper with a Public Water System).
    11. Amendment: Chapter Eight is amended by striking the 
``Introductory Commentary'' and inserting the following:

Introductory Commentary

    The guidelines and policy statements in this chapter apply when the 
convicted defendant is an organization. Organizations can act only 
through agents and, under federal criminal law, generally are 
vicariously liable for offenses committed by their agents. At the same 
time, individual agents are responsible for their own criminal conduct. 
Federal prosecutions of organizations therefore frequently involve 
individual and organizational co-defendants. Convicted individual 
agents of organizations are sentenced in accordance with the guidelines 
and policy statements in the preceding chapters. This chapter is 
designed so that the sanctions imposed upon organizations and their 
agents, taken together, will provide just punishment, adequate 
deterrence, and incentives for organizations to maintain internal 
mechanisms for preventing, detecting, and reporting criminal conduct.
    This chapter reflects the following general principles:
    First, the court must, whenever practicable, order the organization 
to remedy any harm caused by the offense. The resources expended to 
remedy the harm should not be viewed as punishment, but rather as a 
means of making victims whole for the harm caused.

[[Page 29019]]

    Second, if the organization operated primarily for a criminal 
purpose or primarily by criminal means, the fine should be set 
sufficiently high to divest the organization of all its assets.
    Third, the fine range for any other organization should be based on 
the seriousness of the offense and the culpability of the organization. 
The seriousness of the offense generally will be reflected by the 
greatest of the pecuniary gain, the pecuniary loss, or the amount in a 
guideline offense level fine table. Culpability generally will be 
determined by six factors that the sentencing court must consider. The 
four factors that increase the ultimate punishment of an organization 
are: (i) The involvement in or tolerance of criminal activity; (ii) the 
prior history of the organization; (iii) the violation of an order; and 
(iv) the obstruction of justice. The two factors that mitigate the 
ultimate punishment of an organization are: (i) The existence of an 
effective compliance and ethics program; and (ii) self-reporting, 
cooperation, or acceptance of responsibility.
    Fourth, probation is an appropriate sentence for an organizational 
defendant when needed to ensure that another sanction will be fully 
implemented, or to ensure that steps will be taken within the 
organization to reduce the likelihood of future criminal conduct.
    These guidelines offer incentives to organizations to reduce and 
ultimately eliminate criminal conduct by providing a structural 
foundation from which an organization may self-police its own conduct 
through an effective compliance and ethics program. The prevention and 
detection of criminal conduct, as facilitated by an effective 
compliance and ethics program, will assist an organization in 
encouraging ethical conduct and in complying fully with all applicable 
laws.''.
    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 compliance 
and ethics program for purposes of Sec.  8C2.5(f), apply Sec.  8B2.1 
(Effective Compliance and Ethics Program).''.
    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).
    Chapter Eight, Part B is amended by striking the heading and 
inserting the following:

PART B--REMEDYING HARM FROM CRIMINAL CONDUCT, AND EFFECTIVE COMPLIANCE 
AND ETHICS PROGRAM
1. REMEDYING HARM FROM CRIMINAL CONDUCT'';

and by adding at the end the following new subpart:

``2. EFFECTIVE COMPLIANCE AND ETHICS PROGRAM

    Sec.  8B2.1. Effective Compliance and Ethics Program
    (a) To have an effective compliance and ethics program, 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 criminal conduct; 
and
    (2) Otherwise promote an organizational culture that encourages 
ethical conduct and a commitment to compliance with the law.
    Such compliance and ethics program shall be reasonably designed, 
implemented, and enforced so that the program is generally effective in 
preventing and detecting criminal conduct. The failure to prevent or 
detect the instant offense does not necessarily mean that the program 
is not generally effective in preventing and detecting criminal 
conduct.
    (b) Due diligence and the promotion of an organizational culture 
that encourages ethical conduct and a commitment to compliance with the 
law within the meaning of subsection (a) minimally require the 
following:
    (1) The organization shall establish standards and procedures to 
prevent and detect criminal conduct.
    (2)(A) The organization's governing authority shall be 
knowledgeable about the content and operation of the compliance and 
ethics program and shall exercise reasonable oversight with respect to 
the implementation and effectiveness of the compliance and ethics 
program.
    (B) High-level personnel of the organization shall ensure that the 
organization has an effective compliance and ethics program, as 
described in this guideline. Specific individual(s) within high-level 
personnel shall be assigned overall responsibility for the compliance 
and ethics program.
    (C) Specific individual(s) within the organization shall be 
delegated day-to-day operational responsibility for the compliance and 
ethics program. Individual(s) with operational responsibility shall 
report periodically to high-level personnel and, as appropriate, to the 
governing authority, or an appropriate subgroup of the governing 
authority, on the effectiveness of the compliance and ethics program. 
To carry out such operational responsibility, such individual(s) shall 
be given adequate resources, appropriate authority, and direct access 
to the governing authority or an appropriate subgroup of the governing 
authority.
    (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 engaged in illegal activities or other 
conduct inconsistent with an effective compliance and ethics program.
    (4)(A) The organization shall take reasonable steps to communicate 
periodically and in a practical manner its standards and procedures, 
and other aspects of the compliance and ethics program, to the 
individuals referred to in subdivision (B) by conducting effective 
training programs and otherwise disseminating information appropriate 
to such individuals' respective roles and responsibilities.
    (B) The individuals referred to in subdivision (A) are the members 
of the governing authority, high-level personnel, substantial authority 
personnel, 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 compliance and ethics program 
is followed, including monitoring and auditing to detect criminal 
conduct;
    (B) To evaluate periodically the effectiveness of the 
organization's compliance and ethics program; and
    (C) To have and publicize a system, which may include mechanisms 
that allow for anonymity or confidentiality, whereby the organization's 
employees and agents may report or seek guidance regarding potential or 
actual criminal conduct without fear of retaliation.
    (6) The organization's compliance and ethics program shall be 
promoted and enforced consistently throughout the organization through 
(A) appropriate incentives to perform in accordance with the compliance 
and ethics program; and (B) appropriate disciplinary measures for 
engaging in criminal conduct and for failing to take reasonable steps 
to prevent or detect criminal conduct.
    (7) After criminal conduct has been detected, the organization 
shall take reasonable steps to respond

[[Page 29020]]

appropriately to the criminal conduct and to prevent further similar 
criminal conduct, including making any necessary modifications to the 
organization's compliance and ethics program.
    (c) In implementing subsection (b), the organization shall 
periodically assess the risk of criminal conduct and shall take 
appropriate steps to design, implement, or modify each requirement set 
forth in subsection (b) to reduce the risk of criminal conduct 
identified through this process.

Commentary

    Application Notes:
    1. Definitions.--For purposes of this guideline:
    `Compliance and ethics program' means a program designed to prevent 
and detect criminal conduct.
    `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.
    `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).
    `Standards and procedures' means standards of conduct and internal 
controls that are reasonably capable of reducing the likelihood of 
criminal conduct.
    2. Factors to Consider in Meeting Requirements of this Guideline.--
    (A) In General.--Each of the requirements set forth in this 
guideline 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) Applicable industry practice or the 
standards called for by any applicable governmental regulation; (ii) 
the size of the organization; and (iii) similar misconduct.
    (B) Applicable Governmental Regulation and Industry Practice.--An 
organization's failure to incorporate and follow applicable industry 
practice or the standards called for by any applicable governmental 
regulation weighs against a finding of an effective compliance and 
ethics program.
    (C) The Size of the Organization.--
    (i) In General.--The formality and scope of actions that an 
organization shall take to meet the requirements of this guideline, 
including the necessary features of the organization's standards and 
procedures, depend on the size of the organization.
    (ii) Large Organizations.--A large organization generally shall 
devote more formal operations and greater resources in meeting the 
requirements of this guideline than shall a small organization. As 
appropriate, a large organization should encourage small organizations 
(especially those that have, or seek to have, a business relationship 
with the large organization) to implement effective compliance and 
ethics programs.
    (iii) Small Organizations.--In meeting the requirements of this 
guideline, small organizations shall demonstrate the same degree of 
commitment to ethical conduct and compliance with the law as large 
organizations. However, a small organization may meet the requirements 
of this guideline with less formality and fewer resources than would be 
expected of large organizations. In appropriate circumstances, reliance 
on existing resources and simple systems can demonstrate a degree of 
commitment that, for a large organization, would only be demonstrated 
through more formally planned and implemented systems.
    Examples of the informality and use of fewer resources with which a 
small organization may meet the requirements of this guideline include 
the following: (I) The governing authority's discharge of its 
responsibility for oversight of the compliance and ethics program by 
directly managing the organization's compliance and ethics efforts; 
(II) training employees through informal staff meetings, and monitoring 
through regular `walk-arounds' or continuous observation while managing 
the organization; (III) using available personnel, rather than 
employing separate staff, to carry out the compliance and ethics 
program; and (IV) modeling its own compliance and ethics program on 
existing, well-regarded compliance and ethics programs and best 
practices of other similar organizations.
    (D) Recurrence of Similar Misconduct.--Recurrence of similar 
misconduct creates doubt regarding whether the organization took 
reasonable steps to meet the requirements of this guideline. For 
purposes of this subdivision, `similar misconduct' has the meaning 
given that term in the Commentary to Sec.  8A1.2 (Application 
Instructions--Organizations).
    3. Application of Subsection (b)(2).--High-level personnel and 
substantial authority personnel of the organization shall be 
knowledgeable about the content and operation of the compliance and 
ethics program, shall perform their assigned duties consistent with the 
exercise of due diligence, and shall promote an organizational culture 
that encourages ethical conduct and a commitment to compliance with the 
law.
    If the specific individual(s) assigned overall responsibility for 
the compliance and ethics program does not have day-to-day operational 
responsibility for the program, then the individual(s) with day-to-day 
operational responsibility for the program typically should, no less 
than annually, give the governing authority or an appropriate subgroup 
thereof information on the implementation and effectiveness of the 
compliance and ethics program.
    4. Application of Subsection (b)(3).--
    (A) 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.
    (B) Implementation.--In implementing subsection (b)(3), the 
organization shall hire and promote individuals so as to ensure that 
all individuals within the high-level personnel and substantial 
authority personnel of the organization will perform their assigned 
duties in a manner consistent with the exercise of due diligence and 
the promotion of an organizational culture that encourages ethical 
conduct and a commitment to compliance with the law under subsection 
(a). With respect to the hiring or promotion of such individuals, an 
organization shall consider the relatedness of the individual's illegal 
activities and other misconduct (i.e., other conduct inconsistent with 
an effective compliance and ethics program) to the specific 
responsibilities the individual is anticipated to be assigned and other 
factors such as: (i) The recency of the individual's illegal activities 
and other misconduct; and (ii) whether the individual has engaged in 
other such illegal activities and other such misconduct.
    5. Application of Subsection (b)(6).--Adequate discipline of 
individuals responsible for an offense is a necessary component of 
enforcement; however, the form of discipline that will be appropriate 
will be case specific.
    6. Application of Subsection (c).--To meet the requirements of 
subsection (c), an organization shall:
    (A) Assess periodically the risk that criminal conduct will occur, 
including assessing the following:
    (i) The nature and seriousness of such criminal conduct.
    (ii) The likelihood that certain criminal conduct may occur because 
of the nature of the organization's

[[Page 29021]]

business. If, because of the nature of an organization's business, 
there is a substantial risk that certain types of criminal conduct may 
occur, the organization shall take reasonable steps to prevent and 
detect that type of criminal conduct. For example, an organization 
that, due to the nature of its business, employs sales personnel who 
have flexibility to set prices shall establish 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 standards and procedures designed to prevent and detect 
fraud.
    (iii) The prior history of an organization may indicate types of 
criminal conduct that it shall take actions to prevent and detect.
    (B) Prioritize periodically, as appropriate, the actions taken 
pursuant to any requirement set forth in subsection (b), in order to 
focus on preventing and detecting the criminal conduct identified under 
subdivision (A) of this note as most likely to occur.
    (C) Modify, as appropriate, the actions taken pursuant to any 
requirement set forth in subsection (b) to reduce the risk of criminal 
conduct identified under subdivision (A) of this note as most likely to 
occur.
    Background: This section sets forth the requirements for an 
effective compliance and ethics program. 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 criminal conduct for 
which the organization would be vicariously liable. The prior diligence 
of an organization in seeking to prevent and detect criminal conduct 
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)''.
    Section 8C2.5 is amended by striking subsection (f) and inserting 
the following:
    ``(f) Effective Compliance and Ethics Program
    (1) If the offense occurred even though the organization had in 
place at the time of the offense an effective compliance and ethics 
program, as provided in Sec.  8B2.1 (Effective Compliance and Ethics 
Program), subtract 3 points.
    (2) Subsection (f)(1) shall not apply if, after becoming aware of 
an offense, the organization unreasonably delayed reporting the offense 
to appropriate governmental authorities.
    (3)(A) Except as provided in subdivision (B), subsection (f)(1) 
shall not apply if an individual within high-level personnel of the 
organization, a person within high-level personnel of the unit of the 
organization within which the offense was committed where the unit had 
200 or more employees, or an individual described in Sec.  
8B2.1(b)(2)(B) or (C), participated in, condoned, or was willfully 
ignorant of the offense.
    (B) There is a rebuttable presumption, for purposes of subsection 
(f)(1), that the organization did not have an effective compliance and 
ethics program if an individual--
    (i) Within high-level personnel of a small organization; or
    (ii) Within substantial authority personnel, but not within high-
level personnel, of any organization,

participated in, condoned, or was willfully ignorant of, the 
offense.''.

    The Commentary to Sec.  8C2.5 captioned ``Application Notes'' is 
amended by striking Note 1 and inserting the following:
    ``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 Application Note 3 of the Commentary to 
Sec.  8A1.2 (Application Instructions--Organizations).
    `Small Organization', for purposes of subsection (f)(3), means an 
organization that, at the time of the instant offense, had fewer than 
200 employees.''.
    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:
    ``Waiver of attorney-client privilege and of work product 
protections is not a prerequisite to a reduction in culpability score 
under subdivisions (1) and (2) of subsection (g) unless such waiver is 
necessary in order to provide timely and thorough disclosure of all 
pertinent information known to the organization.''.
    Section 8C2.8(a) is amended in subdivision (9) by striking ``and''; 
in subdivision (10) by striking the period at the end of the 
subdivision 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 compliance and ethics program within the 
meaning of Sec.  8B2.1 (Effective Compliance and Ethics Program).''.
    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''.
    Section 8C4.10 is amended by striking ``(Effective Program to 
Prevent and Detect Violations of Law)'' and inserting ``(Effective 
Compliance and Ethics Program)''; and 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 compliance and 
ethics program, but the organization did not have such a program, an 
upward departure may be warranted.''.
    Chapter Eight, Part D, is amended in the ``Introductory 
Commentary'' by striking ``8D1.5'' and inserting ``8D1.4, and Sec.  
8F1.1,''.
    Section 8D1.1(a) is amended by striking subdivision (3) 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 under law to have 
an effective compliance and ethics program; 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) and 
inserting the following:
    ``(1) The organization shall develop and submit to the court an 
effective compliance and ethics program

[[Page 29022]]

consistent with Sec.  8B2.1 (Effective Compliance and Ethics Program). 
The organization shall include in its submission a schedule for 
implementation of the compliance and ethics 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'' is 
amended by striking ``Notes'' in the heading and inserting ``Note''; 
and in Note 1 by striking ``a program to prevent and detect violations 
of law'' and inserting ``a compliance and ethics program''; and by 
striking the last sentence of the first paragraph and inserting ``The 
court should approve any program that appears reasonably calculated to 
prevent and detect criminal conduct, as long as it is consistent with 
Sec.  8B2.1 (Effective Compliance and Ethics Program), and any 
applicable statutory and regulatory requirements.''.
    Chapter Eight, Part D is amended by striking Sec.  8D1.5 and its 
accompanying commentary.
    Chapter Eight is amended by adding at the end the following Part:

``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 
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).''.
    Reason for Amendment: This amendment modifies existing provisions 
of Chapter Eight and provides a new guideline at Sec.  8B2.1 (Effective 
Compliance and Ethics Program). Most notably, Sec.  8B2.1 strengthens 
the existing criteria an organization must follow in order to establish 
and maintain an effective program to prevent and detect criminal 
conduct for purposes of mitigating its sentencing culpability for an 
offense. This amendment is the culmination of a multi-year review of 
the organizational guidelines, implements several recommendations 
issued on October 7, 2003, by the Commission's Ad Hoc Advisory Group on 
the Organizational Sentencing Guidelines (Advisory Group), and responds 
to the Sarbanes-Oxley Act (``the Act''), Pub. L. 107-204, which in 
section 805 directed the Commission to review and amend the 
organizational guidelines and related policy statements to ensure that 
they are sufficient to deter and punish organizational misconduct.
    Consistent with the Act's focus on deterring criminal misconduct, 
this amendment revises the introductory commentary to Chapter Eight to 
highlight the importance of structural safeguards designed to prevent 
and detect criminal conduct. First and foremost among these safeguards 
is a regime of internal crime prevention and self-policing (``an 
effective compliance and ethics program''). While Chapter Eight derives 
its authority and content from the federal criminal law, an effective 
compliance and ethics program not only will prevent and detect criminal 
conduct, but also should facilitate compliance with all applicable 
laws.
    Under Sec.  8C2.5(g) (Culpability Score), an effective compliance 
and ethics program is one of the mitigating factors that can reduce an 
organization's fine punishment under Chapter Eight. The absence of an 
effective program may be a reason for the court to place an 
organization on probation, and the implementation of an effective 
program may be a condition of probation for organizations under Sec.  
8D1.4(c) (Recommended Conditions of Probation-Organizations).
    In order to emphasize the importance of compliance and ethics 
programs and to provide more prominent guidance on the requirements for 
an effective program, the amendment elevates the criteria for an 
effective compliance program previously set forth in the Commentary to 
Sec.  8A1.2 (Application Instructions--Organizations) into a separate 
guideline. Furthermore, the amendment elaborates upon these criteria, 
introducing additional rigor generally and imposing significantly 
greater responsibilities on the organization's governing authority and 
executive leadership.
    Section 8B2.1(a)(1) sets forth the existing requirement that an 
organization exercise due diligence to prevent and detect criminal 
conduct, but adds the requirement that an organization ``otherwise 
promote an organizational culture that encourages ethical conduct and a 
commitment to compliance with the law.'' This addition is intended to 
reflect the emphasis on ethical conduct and values incorporated into 
recent legislative and regulatory reforms, such as those provided by 
the Act.
    Section 8B2.1(b) provides that due diligence and the promotion of 
desired organizational culture are indicated by the fulfilment of seven 
minimum requirements, which are the hallmarks of an effective program 
that encourages compliance with the law and ethical conduct. While the 
framework of requirements is derived from the existing criteria for an 
effective compliance program at Application Note 3(k) to Sec.  8A1.2, 
significant additional guidance is provided.
    First, Sec.  8B2.1(b)(1) provides that organizations must establish 
``standards and procedures to prevent and detect criminal conduct.'' 
Application Note 1 establishes that ``standards and procedures'' 
encompass ``standards of conduct and internal controls that are 
reasonably capable of reducing the likelihood of criminal conduct.''
    Second, the new guideline replaces the requirement in Application 
Note 3(k)(2) to Sec.  8A1.2 that ``specific individual(s) within high-
level personnel of the organization must have been assigned overall 
responsibility to oversee compliance'' with more specific and exacting 
requirements. Section 8B2.1(b)(2) defines the specific roles and 
reporting relationships of particular categories of personnel with 
respect to compliance and ethics program responsibilities. 
Specifically, the Commission has determined that the organization's 
governing authority must ``be knowledgeable about the content and 
operation of the compliance and ethics program and shall exercise 
reasonable oversight with respect to the implementation and 
effectiveness of the compliance and ethics program.'' Application Note 
1 defines ``governing authority'' as the ``(A) Board of Directors, or 
(B) if the organization does not have a Board of Directors, the 
highest-level governing body of the organization.''
    Section 8B2.1(b)(2) provides that it is the organizational 
leadership, defined in the guidelines as ``high-level personnel,'' who 
must ensure that the organization's program is effective. The 
accompanying commentary at Application Note 1 retains existing 
definitions for the terms ``high-level personnel'' and ``substantial 
authority personnel'' of the organization. Section

[[Page 29023]]

8B2.1(b)(2)(B) provides that the organization must assign someone in 
high-level personnel ``overall responsibility'' for the program. This 
prescription makes explicit that, while another individual or 
individuals may be assigned operational responsibility for the program, 
someone within high-level personnel must be assigned the ultimate 
responsibility for the program's effectiveness.
    Section 8B2.1(b)(2)(C) requires that certain individual(s) have 
day-to-day responsibility for the compliance and ethics program and 
adequate resources to carry out the associated tasks. Specifically, 
Sec.  8B2.1 requires that the individual assigned day-to-day 
operational responsibility for the program, whether it be a high-level 
person or an employee to whom this task is assigned, report to 
organizational leadership and the governing authority on the program. 
If authority is delegated, the governing authority must receive reports 
from such individuals at least annually, according to the commentary in 
Application Note 3. In order to carry out such responsibility, the new 
guideline mandates that such individual or individuals, no matter the 
level, must ``be given adequate resources, appropriate authority, and 
direct access to the governing authority or an appropriate subgroup of 
the governing authority.''
    Third, Sec.  8B2.1(b)(3) replaces the previous requirement that 
substantial authority personnel be screened for their ``propensity to 
engage in violations of law'' with the requirement that the 
organization ``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 engaged in illegal activities or other conduct 
inconsistent with an effective compliance and ethics program.'' 
Application Note 4(A) makes explicit that this provision does not 
require any ``conduct inconsistent with any Federal, State, or local 
law, including any law governing employment or hiring practices.'' 
Application Note 4(B) provides that the organization shall hire and 
promote individuals so as to ensure that all individuals within the 
organizational leadership will perform their assigned duties in a 
manner consistent with the exercise of due diligence and the promotion 
of an organizational culture that encourages a commitment to compliance 
with ethics and the law. If an individual has engaged in illegal 
activities, the organization has an obligation to consider the 
relatedness of the individual's illegal activities and other misconduct 
to the specific responsibilities such individual is expected to be 
assigned. The recency of the individual's illegal activities and other 
misconduct also should be considered.
    Fourth, Sec.  8B2.1(b)(4) makes compliance and ethics training a 
requirement, and specifically extends the training requirement to the 
upper levels of an organization, including the governing authority and 
high-level personnel, in addition to all of the organization's 
employees and agents, as appropriate. Furthermore, subsection (b)(4) 
establishes that this communication and training obligation is ongoing, 
requiring ``periodic'' updates.
    Fifth, Sec.  8B2.1(b)(5) expands the existing requirement regarding 
reasonable steps to achieve compliance. Specifically, the amendment 
mandates that organizations use auditing and monitoring systems 
designed to detect criminal conduct. It also adds the specific 
requirement that the organization periodically evaluate the 
effectiveness of its compliance and ethics program. Significantly, the 
new guideline expands the focus of internal reporting from simply 
reporting ``the criminal conduct * * * of others'' to using internal 
systems to either ``report or seek guidance regarding potential or 
actual criminal conduct.'' The addition of ``seeking guidance'' is 
consistent with the increased focus of this guideline on the prevention 
and deterrence of wrongdoing within organizations. This section also 
replaces the existing reference to ``reporting systems without fear of 
retribution'' with the more specific requirement that the organization 
must have ``a system, which may include mechanisms that allow for 
anonymity or confidentiality, whereby the organization's employees and 
agents may report or seek guidance regarding potential or actual 
criminal conduct without fear of retaliation.''
    The Commission is aware that both anonymous and confidential 
mechanisms have inherent value and limitations. For example, anonymous 
mechanisms may hinder an organization from engaging in an effective 
dialogue with the potential whistleblower to discover additional 
information that might lead to a more efficient detection of the 
wrongdoing. Confidential mechanisms may permit the dialogue and 
development of maximum information, but the ability of organizations to 
ensure total confidentiality may be limited by legal obligations 
relating to self-disclosure, law enforcement subpoenas, and civil 
discovery requests. The Commission intends for an organization to have 
maximum flexibility in implementing a system that is best suited to its 
culture and conforms to applicable law. A responsible organization is 
expected, as appropriate, to communicate to its employees any 
applicable limitations of its internal reporting mechanisms.
    Sixth, Sec.  8B2.1(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 the compliance and ethics 
program.'' This addition articulates both a duty to promote proper 
conduct in whatever manner an organization deems appropriate, as well 
as a duty to sanction improper conduct.
    Finally, Sec.  8B2.1(b)(7) retains the requirement that an 
organization take reasonable steps to respond to and prevent further 
similar criminal conduct. This dual duty underscores the organization's 
obligation to address both specific instances of misconduct and 
systemic shortcomings that compromise the deterrent effect of its 
compliance and ethics program.
    In addition to the seven requirements for a compliance and ethics 
program, Sec.  8B2.1(c) expressly provides, as an essential component 
of the design, implementation, and modification of an effective 
program, that an organization must periodically assess the risk of the 
occurrence of criminal conduct. The new guideline includes at 
Application Note 6 various factors that should be addressed when 
assessing relevant risks. Specifically, organizations should evaluate 
the nature and seriousness of potential criminal conduct, the 
likelihood that certain criminal conduct may occur because of the 
nature of the organization's business, and the prior history of the 
organization. To be effective, this process must be ongoing. 
Organizations must periodically prioritize their compliance and ethics 
resources to target those potential criminal activities that pose the 
greatest threat in light of the risks identified.
    The amendment also provides additional guidance with respect to the 
implementation of compliance and ethics programs by small organizations 
by including frequent references to small organizations throughout the 
commentary of Sec.  8B2.1 and providing illustrations (see e.g., 
Application Note 2(C)(ii)). It also encourages larger organizations to 
promote the adoption of compliance and ethics programs by smaller 
organizations, including those

[[Page 29024]]

with which they conduct or seek to conduct business.
    This amendment also changes the automatic preclusion for compliance 
program credit provided in Sec.  8C2.5(f) (Culpability Score) for 
``small organizations.'' A ``small organization'' is defined, for this 
subsection only, as an organization having fewer than 200 employees. 
This modification is intended to assist smaller organizations that 
previously may have been automatically precluded, because of their 
size, from arguing for a culpability score reduction based upon an 
effective compliance and ethics program that fulfills all of the 
guideline requirements. Rather than precluding absolutely these small 
organizations from obtaining the reduction if certain categories of 
high-level personnel are involved in the offense of conviction, Sec.  
8C2.5(f)(3) establishes that an offense by an individual within high-
level personnel of the organization results in a rebuttable presumption 
for a small organization that it did not have an effective program. The 
small organization, however, can rebut that presumption by 
demonstrating that it had an effective program, despite the involvement 
in the offense of a person high in the organization's structure.
    This amendment also addresses concerns about the relationship 
between obtaining credit under Sec.  8C2.5(g) and waiver of 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 
Attorneys' Offices (all of which are described at Part V of the 
Advisory Group Report of October 7, 2003). The Commission addresses 
some of these concerns by providing at Application Note 12 that waiver 
of the attorney-client privilege and of work product protections ``is 
not a prerequisite to a reduction in culpability score under 
subdivisions (1) and (2) of subsection (g) unless such waiver is 
necessary in order to provide timely and thorough disclosure of all 
pertinent information known to the organization.'' The Commission 
expects that such waivers will be required on a limited basis. See 
``United States Attorneys'' Bulletin,'' November 2003, Volume 51, 
Number 6, pp. 1, 8.
    12. Amendment: The Commentary to Sec.  1B1.3 captioned 
``Application Notes'' is amended in Note 5 by striking the fifth 
sentence and inserting ``In a case in which creation of risk is not 
adequately taken into account by the applicable offense guideline, 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 Note 1 in the third sentence 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''.
    Section 2B1.1(b)(10), as redesignated by Amendment 3 of this 
document, is amended in subdivision (A) by striking ``device-making 
equipment'' and inserting ``(i) device-making equipment, or (ii) 
authentication feature''; in subdivision (B) by inserting ``(i)'' 
before ``unauthorized access''; and by inserting ``, or (ii) 
authentication feature'' after ``counterfeit access device''; and in 
subdivision (C)(i) by striking the semi-colon and inserting a comma.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 4 by striking subdivision (C)(ii), as redesignated by 
Amendment 3 of this document, and inserting the following:
    ``(ii) Special Rule.--A case described in subdivision (C)(i) of 
this note that involved--
    (I) A United States Postal Service relay box, collection box, 
delivery vehicle, satchel, or cart, shall be considered to have 
involved at least 50 victims.
    (II) A housing unit cluster box or any similar receptacle that 
contains multiple mailboxes, whether such receptacle is owned by the 
United States Postal Service or otherwise owned, shall, unless proven 
otherwise, be presumed to have involved the number of victims 
corresponding to the number of mailboxes in each cluster box or similar 
receptacle.''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 7, as redesignated by Amendment 3 of this document, by 
striking ``(b)(7)'' each place it appears and inserting ``(b)(8)''; and 
in Note 8, as redesignated by Amendment 3 of this document, by striking 
``(b)(8)'' each place it appears and inserting ``(b)(9)''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 9, as redesignated by Amendment 3 of this document, by 
striking ``(b)(9)'' each place it appears and inserting ``(b)(10)''; in 
subdivision (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).''; in the paragraph that begins `` `Means of 
identification' '' by striking ``(d)(4)'' and inserting ``(d)(7)''; and 
in subdivision (B) by inserting ``Authentication Features and'' before 
``Identification Documents.''; and by inserting ``authentication 
features,'' after ``involving''.
    The Commentary Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 10, as redesignated by Amendment 3 of this document, by 
striking ``(b)(10)'' each place it appears and inserting ``(b)(11)''; 
in Note 11, as redesignated by Amendment 3 of this document, by 
striking ``(b)(12)'' each place it appears and inserting ``(b)(13)''; 
in Note 12, as redesignated by Amendment 3 of this document, by 
striking ``(b)(12)'' each place it appears and inserting ``(b)(13)''; 
in Note 13, as redesignated by Amendment 3 of this document, by 
striking ``(b)(13)'' each place it appears and inserting ``(b)(14)''; 
and by striking ``(b)(12)(B)'' each place it appears and inserting 
``(b)(13)(B)''; in Note 14, as redesignated by Amendment 3 of this 
document, by striking ``(b)(14)'' and inserting ``(b)(15)''; and in 
Note 19(B), as redesignated by Amendment 3 of this document, by 
striking ``(b)(13)(iii)'' and inserting ``(b)(14)(iii)''.
    The Commentary to Sec.  2B1.1 captioned ``Background'' is amended 
in the ninth paragraph by striking ``Subsection (b)(7)(D)'' and 
inserting ``Subsection (b)(8)(D)''; in the tenth paragraph by striking 
``Subsection (b)(8)'' and inserting ``Subsection (b)(9)''; in the 
eleventh paragraph by striking ``Subsections (b)(9)(A) and (B)'' and 
inserting ``Subsections (b)(10)(A)(i) and (B)(i)''; in the twelfth 
paragraph by striking ``Subsection (b)(9)(C)'' and inserting 
``Subsection (b)(10)(C)''; in the thirteenth paragraph by striking 
``Subsection (b)(11)(B)'' and inserting ``Subsection (b)(12)(B)''; in 
the fourteenth paragraph by striking ``Subsection (b)(12)(A)'' and 
inserting ``Subsection (b)(13)(A)''; in the fifteenth paragraph by 
striking ``Subsection (b)(12)(B)'' and inserting ``Subsection 
(b)(13)(B)''; in the sixteenth paragraph by striking ``Subsection 
(b)(13) implements'' and inserting ``Subsection (b)(14) implements''; 
and by striking ``subsection (b)(13)(B)'' and inserting ``subsection 
(b)(14)(B)''.

[[Page 29025]]

    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''.
    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: 4 plus the offense level from the guideline 
applicable to the underlying crime of violence.

Commentary

    Statutory Provision: 18 U.S.C. Sec.  25.
    Application Notes:
    1. Definition.--For purposes of this guideline, `underlying crime 
of violence' means the crime of violence as to which the defendant is 
convicted of using a minor.
    2. Inapplicability of Sec.  3B1.4.--Do not apply the adjustment 
under Sec.  3B1.4 (Using a Minor to Commit a Crime).
    3. Multiple Counts.--
    (A) In a case in which the defendant is convicted under both 18 
U.S.C. Sec.  25 and the underlying crime of violence, the counts shall 
be grouped pursuant to subsection (a) of Sec.  3D1.2 (Groups of Closely 
Related Counts).
    (B) Multiple counts involving the use of a minor in a crime of 
violence shall not be grouped under Sec.  3D1.2.''.
    The Commentary to Sec.  3C1.1 captioned ``Application Notes'' is 
amended in Note 5(b) by striking ``3(g)'' and inserting ``4(g)''.
    Section 3D1.2(d) is amended by striking the period after ``2P1.3'' 
and inserting a semi-colon; and by inserting after the line that begins 
``Sec. Sec.  2P1.1,'' the following new line: ``Sec.  2X6.1.''.
    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''.
    The Commentary to Sec.  4B1.2 captioned ``Application Notes'' is 
amended in Note 1 in the first sentence of the paragraph that begins `` 
`Crime of violence' '' does not include'' by inserting ``, unless the 
possession was of a firearm described in 26 U.S.C. Sec.  5845(a)'' 
before the period.
    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:
    ``Unlawfully possessing a firearm described in 26 U.S.C. Sec.  
5845(a) (e.g., a sawed-off shotgun or sawed-off rifle, silencer, bomb, 
or machine gun) is a `crime of violence'.''.
    The Commentary to Sec.  4B1.4 captioned ``Application Note'' is 
amended by striking ``Note'' in the heading and inserting ``Notes''; 
and by adding at the end the following:
    ``2. Application of Sec.  4B1.4 in Cases Involving Convictions 
Under 18 U.S.C. Sec.  844(h), Sec.  924(c), or Sec.  929(a).--If a 
sentence under this guideline is imposed in conjunction with a sentence 
for a conviction under 18 U.S.C. Sec.  844(h), Sec.  924(c), or Sec.  
929(a), do not apply either subsection (b)(3)(A) or (c)(2). A sentence 
under 18 U.S.C. Sec.  844(h), Sec.  924(c), or Sec.  929(a) accounts 
for the conduct covered by subsections (b)(3)(A) and (c)(2) because of 
the relatedness of the conduct covered by these subsections to the 
conduct that forms the basis for the conviction under 18 U.S.C. Sec.  
844(h), Sec.  924(c), or Sec.  929(a).
    In a few cases, the rule provided in the preceding paragraph may 
result in a guideline range that, when combined with the mandatory 
consecutive sentence under 18 U.S.C. Sec.  844(h), Sec.  924(c), or 
Sec.  929(a), produces a total maximum penalty that is less than the 
maximum of the guideline range that would have resulted had there not 
been a count of conviction under 18 U.S.C. Sec.  844(h), Sec.  924(c), 
or Sec.  929(a) (i.e., the guideline range that would have resulted if 
subsections (b)(3)(A) and (c)(2) had been applied). In such a case, an 
upward departure may be warranted so that the conviction under 18 
U.S.C. Sec.  844(h), Sec.  924(c), or Sec.  929(a) does not result in a 
decrease in the total punishment. An upward departure under this 
paragraph shall not exceed the maximum of the guideline range that 
would have resulted had there not been a count of conviction under 18 
U.S.C. Sec.  844(h), Sec.  924(c), or Sec.  929(a).''.
    Section 5C1.2(a) is amended by striking ``verbatim''.
    The Commentary to Sec.  5G1.2 captioned ``Application Notes'' is 
amended in Note 3(B)(iii) in the first sentence by striking ``2113(a) 
(20 year'' and inserting ``113(a)(3) (10 year''; in the second sentence 
by striking ``400'' and inserting ``460'', and by striking ``360-life'' 
and inserting ``460-485 months''; and in the third sentence by striking 
``40'' and inserting ``100'', and by striking ``2113(a)'' and inserting 
``113(a)(3)''.
    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''.
    Chapter Five, Part H is amended by striking Sec.  5H1.6 and 
inserting the following:
    5H1.6. Family Ties and Responsibilities (Policy Statement).
    In sentencing a defendant convicted of an offense other than an 
offense described in the following paragraph, family ties and 
responsibilities are not ordinarily relevant in determining whether a 
departure may be warranted.
    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.
    Family responsibilities that are complied with may be relevant to 
the determination of the amount of restitution or fine.''.
    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

[[Page 29026]]

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 striking ``departure below the 
applicable guideline range for that offense'' and inserting ``downward 
departure''.
    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 appears and inserting 
``depart downward''; and by striking ``for imposing a sentence below 
the guidelines'' and inserting ``to depart downward''.
    Section 5K2.23 is amended by striking ``sentence below the 
applicable guideline range'' and inserting ``downward departure''.
    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. Sec.  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. Sec.  
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 to read as follows:

``Commentary

    A thorough presentence investigation ordinarily is essential in 
determining the facts relevant to sentencing. Rule 32(c)(1)(A) permits 
the judge to dispense with a presentence report in certain limited 
circumstances, as when a specific statute requires or when the court 
finds sufficient information in the record to enable it to exercise its 
statutory sentencing authority meaningfully and explains its finding on 
the record.''.
    Chapter Six, Part A is amended by striking Sec.  6A1.2 and its 
accompanying commentary and inserting the following:
    ``Sec.  6A1.2. Disclosure of Presentence Report; Issues in Dispute 
(Policy Statement)
    (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.
    Background: In order to focus the issues prior to sentencing, the 
parties are required to respond in writing to the presentence report 
and to identify any issues in dispute. See Rule 32(f), Fed. R. Crim. 
P.''.
    Section 6A1.3(b) is amended by striking ``Rule 32(c)(1)'' and 
inserting ``Rule 32(i)''.
    The Commentary to Sec.  6A1.3 is amended by striking the first 
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 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 by striking the Introductory 
Commentary and inserting the following:

``Introductory Commentary

    Policy statements governing the acceptance of plea agreements under 
Rule 11(c), Fed. R. Crim. P., are intended to ensure that plea 
negotiation practices: (1) Promote the statutory purposes of sentencing 
prescribed in 18 U.S.C. Sec.  3553(a); and (2) do not perpetuate 
unwarranted sentencing disparity.
    These policy statements make clear that sentencing is a judicial 
function and that the appropriate sentence in a guilty plea case is to 
be determined by the judge. The policy statements also ensure that the 
basis for any judicial decision to depart from the guidelines will be 
explained on the record.''.
    Section 6B1.1 is amended by striking subsections (a), (b), and (c) 
and inserting the following:
    ``(a) The parties must disclose the plea agreement on open court 
when the plea is offered, unless the court for good cause allows the 
parties to disclose the plea agreement on 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), Fed. R. Crim. P.''.
    The Commentary to Sec.  6B1.1 is amended in the first paragraph by 
striking ``Rule 11(e)'' and inserting ``Rule 11(c)'';

and by 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 Commission recommends that the court defer acceptance of 
the plea agreement until the court has reviewed the presentence 
report.''.
    Section 6B1.3 is amended by striking ``If a plea'' and all that 
follows through ``Fed. R. Crim. P.'' and inserting the following:

[[Page 29027]]

    ``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.''.
    The Commentary to Sec.  6B1.3 is amended by striking ``Rule 
11(e)(4)''and inserting ``Rule 11(c)(5)''; and by striking ``that would 
require dismissal of charges or imposition of a specific sentence.'' 
and inserting a period.
    Appendix A is amended by inserting after the line referenced to 18 
U.S.C. Sec.  4 the following new line: ``18 U.S.C. Sec.  25 2X6.1''.
    Reason for Amendment: This nine-part amendment consists of four 
technical and conforming amendments and five amendments of a more 
substantive nature, some of which are in response to new legislation.
    First, this amendment corrects a typographical error in Application 
Note 4 to Sec.  3C1.1 (Obstructing or Impeding the Administration of 
Justice) by changing a reference to Application Note 3(g) to 4(g).
    Second, this amendment makes a number of conforming changes to 
various guideline provisions and commentary as a result of departure 
amendments previously made in furtherance of the Prosecutorial Remedies 
and Other Tools to end the Exploitation of Children Today Act of 2003, 
Pub. L. 108-21 (the ``PROTECT Act'').
    Third, this amendment corrects an error in an example provided in 
Application Note 3(B)(iii) of Sec.  5G1.2 (Sentencing on Multiple 
Counts of Conviction).
    Fourth, this amendment generally updates Chapter Six (Sentencing 
Procedures and Plea Agreements) in response to a number of amendments 
that were made to the Federal Rules of Criminal Procedure effective 
December 1, 2002. While some of these changes to the Rules were 
substantive, the bulk of the changes to Rules 11 and 32 of the Federal 
Rules of Criminal Procedure were organizational and stylistic. These 
guideline amendments conform to those changes made to the Federal Rules 
of Criminal Procedure with respect to such issues as deadlines for 
disputed issues and requirements for disclosure of presentence reports, 
as well as procedures the court must follow in rejecting certain plea 
agreements. Certain outdated commentary also has been deleted.
    Fifth, this amendment broadens the special multiple victim rule in 
Application Note 4(C)(ii) of Sec.  2B1.1 (Larceny, Embezzlement, and 
Other Forms of Theft; Offenses Involving Stolen Property; Property 
Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving 
Altered or Counterfeit Instruments Other than Counterfeit Bearer 
Obligations of the United States), as redesignated by Amendment 3 of 
this document, for offenses involving stolen United States mail. The 
rule is expanded to include theft of mail from housing unit cluster 
boxes, whether owned by the United States Postal Service or otherwise. 
The amendment provides a presumption that a theft from such a cluster 
box involves the number of victims corresponding to the number of 
mailboxes contained in the cluster box. The same rationale for the 
original special rule applies to this expansion: (i) Unique proof 
problems in that once entry is gained to such a cluster box and mail is 
removed, it is difficult to determine the number of persons from whom 
mail was stolen; (ii) the frequently significant, but difficult to 
quantify, non-monetary losses; and (iii) the importance of maintaining 
the integrity of the United States mail service. See USSG App. C (Vol. 
II) (Amendment 617). These reasons are equally valid whether the mail 
receptacle is owned by the United States Postal Service or is privately 
owned.
    Sixth, this amendment modifies Sec.  2B1.1(b)(10), as redesignated 
by Amendment 3 of this document, which provides a two-level enhancement 
and a minimum offense level of 12, in response to the Secure 
Authentication Feature and Enhanced Identification Defense Act of 2003 
(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. Sec.  1028 to prohibit the transfer or possession of 
authentication features. This amendment makes Sec.  2B1.1(b)(10) 
applicable to offenses involving authentication features.
    Seventh, this amendment creates a new guideline at Sec.  2X6.1 (Use 
of a Minor to Commit a Crime of Violence). This new guideline is in 
response to a new offense provided at 18 U.S.C. Sec.  25 (Use of Minors 
in Crimes of Violence), which was created by section 601 of the PROTECT 
Act. The new offense prohibits any person 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. For a first 
conviction, the penalty is twice the maximum term of imprisonment that 
would otherwise be authorized for the offense, and for each subsequent 
conviction, three times the maximum term of imprisonment that would 
otherwise be authorized for the offense.
    While consideration was given to expanding the existing two-level 
adjustment at Sec.  3B1.4 (Using a Minor to Commit a Crime), the 
Commission determined it was more appropriate and consistent with 
guideline construction to create a new guideline for the new 
substantive offense created by Congress in the PROTECT Act. This new 
guideline at Sec.  2X6.1 directs the court to increase by 4 levels the 
offense level from the guideline applicable to the underlying crime of 
violence. Application notes are included to provide that the adjustment 
under Sec.  3B1.4 is inapplicable if Sec.  2X6.1 is used and to provide 
rules for the grouping of multiple counts.
    Eighth, this amendment expands the definition of ``crime of 
violence'' in Application Note 1 to Sec.  4B1.2 (Definitions of Terms 
Used in Section 4B1.1) to include unlawful possession of any firearm 
described in 26 U.S.C. Sec.  5845(a). The amendment also excepts 
possession of those firearms described in 26 U.S.C. Sec.  5845(a) from 
the rule that excludes felon in possession offenses from the definition 
of ``crime of violence.'' Congress has determined that those firearms 
described in 26 U.S.C. Sec.  5845(a) are inherently dangerous and when 
possessed unlawfully, serve only violent purposes. In the National 
Firearms Act, Pub. L. 90-618, Congress required that these firearms be 
registered with the National Firearms Registration and Transfer Record. 
A number of courts have held that possession of certain of these 
firearms, such as a sawed-off shotgun, is a ``crime of violence'' due 
to the serious potential risk of physical injury to another person.
    The amendment's categorical rule incorporating 26 U.S.C. Sec.  
5845(a) firearms includes short-barreled rifles and shotguns, machine 
guns, silencers, and destructive devices. It will affect

[[Page 29028]]

determinations both of career offender status under Chapter Four, Part 
B and also of appropriate base offense levels in Sec.  2K2.1 (Unlawful 
Receipt, Possession, or Transportation of Firearms or Ammunition; 
Prohibited Transactions Involving Firearms or Ammunition).
    Ninth, this amendment provides an application note in Sec.  4B1.4 
(Armed Career Criminal) to address an apparent ``double counting'' 
issue that appears to be present when a defendant is convicted both of 
18 U.S.C. Sec.  922(g) (Felon in Possession) and also of an offense 
such as 18 U.S.C. Sec.  924(c) (Use of a Firearm in Relation to Any 
Crime of Violence or Drug Trafficking Crime) or a similar offense 
carrying a mandatory minimum consecutive penalty, such as 18 U.S.C. 
Sec.  844(h) relating to use of explosives, or 18 U.S.C. Sec.  929(a) 
relating to use of restricted ammunition.
    The basis for the mandatory minimum, consecutive penalties in these 
offenses is the same as the basis for the enhanced guideline offense 
level 34 at Sec.  4B1.4(b)(3)(A) and the enhanced Criminal History 
Category VI at Sec.  4B1.4(c)(2); i.e., the use or possession of the 
firearm in connection with a crime of violence or controlled substance 
offense. The Commission determined that the mandatory minimum, 
consecutive sentences in these statutes are sufficient to take into 
account the aggravated conduct referenced in Sec.  4B1.4.
    An upward departure is provided for those cases that result in a 
total maximum penalty that is less than the maximum of the guideline 
range that would have resulted if the enhanced offense level under 
Sec.  4B1.4(b)(3)(A) and the criminal history enhancement under Sec.  
4B1.4(c)(2) had been applied. However, the extent of the upward 
departure shall not exceed the maximum of the guideline range that 
would have resulted had there not been a conviction under 18 U.S.C. 
Sec.  924(c), Sec.  844(h), or Sec.  929(a).

[FR Doc. 04-10990 Filed 5-18-04; 8:45 am]
BILLING CODE 2210-40-P