[Federal Register Volume 71, Number 18 (Friday, January 27, 2006)]
[Notices]
[Pages 4782-4804]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-697]



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Part III





United States Sentencing Commission





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Sentencing Guidelines for United States Courts; Notice

  Federal Register / Vol. 71, No. 18 / Friday, January 27, 2006 / 
Notices  

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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of proposed amendments; request for public comment; 
notice of public hearings.

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SUMMARY: (A) Proposed Temporary, Emergency Amendment Pertaining to 
Steroid Offenses.--Pursuant to section 994(a), (o), and (p) of title 
28, United States Code, section 3 of the Anabolic Steroid Control Act 
of 2004, Pub. L. 108-358, and the United States Parole Commission 
Extension and Sentencing Commission Authority Act of 2005, Pub. L. 109-
75, the Commission is considering promulgating a temporary, emergency 
amendment to the sentencing guidelines, policy statements, and 
commentary to increase the penalties for steroid offenses. This notice 
sets forth the proposed amendment and a synopsis of the issues 
addressed by the amendment. Issues for comment follow the proposed 
amendment.
    (B) Proposed Non-Emergency Amendments.--Pursuant to section 994(a), 
(o), and (p) of title 28, United States Code, the United States 
Sentencing Commission is considering promulgating certain amendments to 
the sentencing guidelines, policy statements, and commentary. This 
notice sets forth the proposed amendments and, for each proposed 
amendment, a synopsis of the issues addressed by that amendment. This 
notice also provides multiple issues for comment, some of which are 
contained within proposed amendments.
    The specific proposed amendments and issues for comment in this 
notice are as follows: (A) proposed amendment and issues for comment 
regarding immigration offenses, particularly offenses covered by 
Sec. Sec.  2L1.1 (Smuggling, Transporting, or Harboring an Unlawful 
Alien), 2L1.2 (Unlawfully Entering or Remaining in the United States), 
2L2.1 (Trafficking in a Document Relating to Naturalization, 
Citizenship, or Legal Resident Status, or a United States Passport; 
etc.) and 2L2.2 (Fraudulently Acquiring Documents Relating to 
Naturalization, Citizenship, or Legal Resident Status for Own Use); (B) 
proposed amendments to Sec. Sec.  2K2.1 (Unlawful Receipt, Possession, 
or Transportation of Firearms or Ammunition; Prohibited Transactions 
Involving Firearms or Ammunition), 1B1.1 (Application Instructions), 
and 5K2.11 (Lesser Harms), and issues for comment pertaining to 
firearms offenses; (C) proposed repromulgation of the proposed 
temporary, emergency amendment to Sec. Sec.  2D1.1 (Unlawful 
Manufacturing, Importing, Exporting, or Trafficking (Including 
Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy), and 3B1.3 (Hate Crime Motivation and Vulnerable Victim) 
set forth in Part A of this notice; (D) proposed amendment to 
repromulgate as a permanent amendment the temporary, emergency 
amendment to Sec.  2B5.3 (Criminal Infringement of Copyright or 
Trademark), which became effective October 24, 2004 (see Supplement to 
Appendix C, (Amendment 675)); (E) proposed amendment to repromulgate as 
a permanent amendment the temporary, emergency amendment to Sec.  2J1.2 
(Obstruction of Justice), which became effective October 24, 2005 (see 
Supplement to Appendix C, (Amendment 676)); (F) proposed amendments 
Sec. Sec.  2A1.4 (Involuntary Manslaughter), 2A5.2 (Interference with 
Flight Crew Member or Flight Attendant; Interference with Dispatch, 
Operation, or Maintenance of Mass Transportation Vehicle or Ferry), 
2B1.1 (Theft, Fraud, and Property Destruction), 2K1.4 (Arson; Property 
Damage by Use of Explosives), and Chapter Two, Part X (Other Offenses) 
to implement the Safe, Accountable, Flexible, Efficient Transportation 
Act: A Legacy for Users, Pub. L. 109-59; (G) proposed amendments to 
Sec. Sec.  2A6.1 (Threatening Communications), 2K2.1 (Unlawful Receipt, 
Possession, or Transportation of Firearms or Ammunition; Prohibited 
Transactions Involving Firearms or Ammunition), 2L1.1 (Smuggling, 
Transporting, or Harboring an Unlawful Alien), and 2M6.1 (Unlawful 
Production, Development, Acquisition, Stockpiling, Alteration, Use, 
Transfer, or Possession of Nuclear Material, Weapons, or Facilities, 
Biological Agents, Toxins, or Delivery Systems, Chemical Weapons, or 
Other Weapons of Mass Destruction; Attempt or Conspiracy) to implement 
the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. 
108-458; (H) proposed amendments to (i) Chapter Three (Adjustments) to 
implement the directive to the Commission in section 204(b) of the 
Intellectual Property Protection and Courts Administration Act of 2004, 
Pub. L. 108-482; and (ii) Sec.  2G2.5 (Recordkeeping Offenses Involving 
the Production of Sexually Explicit Materials) to implement section 
5(d)(1) of the CAN-SPAM Act, Pub. L. 108-187; (I) proposed amendments 
to (i) Sec. Sec.  2B1.1 and 2B1.5 (Theft of, Damage to, or Destruction 
of, Cultural Heritage Resources; Unlawful Sale, Purchase, Exchange, 
Transportation, or Receipt of Cultural Heritage Resources) to implement 
the Veterans' Memorial Preservation and Recognition Act of 2003, Pub. 
L. 108-29; (ii) Sec.  2N2.1 (Violations of Statutes and Regulations 
Dealing With Any Food, Drug, Biological Product, Device, Cosmetic, or 
Agricultural Product) to implement the Plant Protection Act of 2002, 
Pub. L. 107-171; (iii) Sec.  2T3.1 (Evading Import Duties or 
Restrictions (Smuggling); Receiving or Trafficking in Smuggled Property 
) to implement the Clean Diamond Trade Act of 2003, Pub. L. 108-19; 
(iv) Sec. Sec.  2A1.1 (First Degree Murder), 2A1.2 (Second Degree 
Murder), 2A1.3 (Voluntary Manslaughter), 2A1.4 (Involuntary 
Manslaughter), 2A2.1 (Assault with Intent to Commit Murder; Attempted 
Murder), 2A2.2 (Aggravated Assault), and 2X5.1 to implement the Unborn 
Victims of Violence Act of 2004, Pub. L. 108-212; and (v) Chapter Two, 
Part X (Other Offenses) to implement several other laws that created 
new Class A Misdemeanor offenses; (J) proposed amendments to Sec.  
2D1.1 and Chapter Three (Adjustments) to address various guideline 
application issues; (K) proposed amendment to Sec.  3C1.1 (Obstruction 
of Justice) that addresses three issues of circuit conflict; (L) issue 
for comment pertaining to attorney-client waiver in Chapter Eight 
(Sentencing of Organizations); (M) proposed amendment to Chapter Six 
(Sentencing Procedures and Plea Agreements) pertaining to crime 
victims' rights; and (N) proposed amendment to Chapter One, Part B 
(General Application Principles) pertaining to reductions in the term 
of imprisonment based on a Bureau of Prisons motion.

DATES: (A) Proposed Temporary, Emergency Amendment.--Written public 
comment on the proposed emergency amendment should be received by the 
Commission not later February 27, 2006, in anticipation of a vote to 
promulgate the emergency amendments at the Commission's March 2006 
public meeting. Thereafter, written public comment on whether to 
repromulgate the emergency amendment as a permanent, non-emergency 
amendment should be received by the Commission not later than March 28, 
2006.
    (B) Proposed Non-Emergency Amendments.--Written public comment 
regarding the proposed

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amendments and issues for comment set forth in this notice, including 
public comment regarding retroactive application of any of the proposed 
amendments, should be received by the Commission not later than March 
28, 2006.
    (C) Public Hearings.--The Commission has scheduled a public hearing 
on its proposed amendments for March 15, 2006, at the Thurgood Marshall 
Federal Judiciary Building, One Columbus Circle, NE., Washington, DC 
20002-8002. A person who desires to testify at the public hearing 
should notify Michael Courlander, Public Affairs Officer, at (202) 502-
4597, not later than February 17, 2006. Written testimony for the 
public hearing must be received by the Commission not later than March 
1, 2006. Timely submission of written testimony is a requirement for 
testifying at the public hearing. The Commission requests that, to the 
extent practicable, commentators submit an electronic version of the 
comment and of the testimony for the public hearing. The Commission 
also reserves the right to select persons to testify at any of the 
hearings and to structure the hearings as the Commission considers 
appropriate and the schedule permits. Further information regarding the 
public hearing, including the time of the hearing, will be provided by 
the Commission on its Web site at http://www.ussc.gov.
    In addition to the March public hearing, the Commission has 
scheduled two regional public hearings on the proposed immigration 
amendment. The first hearing will be held in San Antonio, TX, on 
February 21, 2006. The second hearing will be held in San Diego, CA, on 
March 6, 2006. Further information regarding these hearings, including 
the time and location, will be provided by the Commission on its Web 
site.

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

FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs 
Officer, Telephone: (202) 502-4597.

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is 
an independent agency in the judicial branch of the United States 
Government. The Commission promulgates sentencing guidelines and policy 
statements for Federal courts pursuant to 28 U.S.C. 994(a). The 
Commission also periodically reviews and revises previously promulgated 
guidelines pursuant to 28 U.S.C. 994(o) and submits guideline 
amendments to the Congress not later than the first day of May of each 
year pursuant to 28 U.S.C. 994(p).
    The Commission seeks comment on the proposed amendments, issues for 
comment, and any other aspect of the sentencing guidelines, policy 
statements, and commentary. In addition to the issues for comment 
presented in the proposed amendments, the Commission requests comment 
regarding simplification of the guidelines. Specifically, with respect 
to the guidelines that are the subject of the following proposed 
amendments, should the Commission make additional amendments to 
simplify those guidelines, and if so, how? For example, should Specific 
Offense Characteristics that are infrequently applied be deleted and 
instead included as bases for upward departures? Should Specific 
Offense Characteristics that provide graduated increases for degrees of 
conduct be collapsed to provide a single offense level increase? For 
example, should a firearm enhancement that provides alternative offense 
level increases based on how a firearm was involved in the offense 
(e.g., discharged, brandished, possessed, or otherwise used) provide a 
single offense level increase for the involvement of a firearm?
    The Commission also requests public comment regarding whether the 
Commission should specify for retroactive application to previously 
sentenced defendants any of the proposed amendments published in this 
notice. The Commission requests comment regarding which, if any, of the 
proposed amendments that may result in a lower guideline range should 
be made retroactive to previously sentenced defendants pursuant to 
Sec.  1B1.10 (Reduction in Term of Imprisonment as a Result of Amended 
Guideline Range).
    The proposed amendments in this notice are presented in one of two 
formats. First, some of the amendments are proposed as specific 
revisions to a guideline or commentary. Bracketed text within a 
proposed amendment indicates a heightened interest on the Commission's 
part on comment and suggestions regarding alternative policy choices; 
for example, a proposed enhancement of [2][4][6] levels indicates that 
the Commission is considering, and invites comment on, alternative 
policy choices regarding the appropriate level of enhancement. 
Similarly, bracketed text within a specific offense characteristic or 
application note means that the Commission specifically invites comment 
on whether the proposed provision is appropriate. Second, the 
Commission has highlighted certain issues for comment and invites 
suggestions on how the Commission should respond to those issues.
    Additional information pertaining to the proposed amendments 
described in this notice, including the Interim Staff Report on 
Immigration Reform and the Federal Sentencing Guidelines, may be 
accessed through the Commission's Web site at http://www.ussc.gov.

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

Ricardo H. Hinojosa,
Chair.

A. Proposed Emergency Amendment

1. Steroids

    Synopsis of Proposed Amendment: This proposed amendment implements 
the directive in the United States Parole Commission Extension and 
Sentencing Commission Authority Act of 2005, Pub. L. 109-76, which 
requires the Commission, under emergency amendment authority, to 
implement section 3 of the Anabolic Steroid Control Act of 2004, Pub. 
L. 108-358 (the ``ASC Act''). The ASC Act directs the Commission to 
``review the Federal sentencing guidelines with respect to offenses 
involving anabolic steroids'' and ``consider amending the * * * 
guidelines to provide for increased penalties with respect to offenses 
involving anabolic steroids in a manner that reflects the seriousness 
of such offenses and the need to deter anabolic steroid trafficking and 
use * * *.'' The Commission must promulgate an amendment not later than 
180 days after the date of enactment of the United States Parole 
Commission Extension and Sentencing Commission Authority Act of 2005, 
which creates a promulgation deadline of March 27, 2006.
    The proposed amendment implements the directives by increasing the 
penalties for offenses involving anabolic steroids. It does so by 
changing the manner in which anabolic steroids are treated under Sec.  
2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking 
(Including Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy). Currently, one unit of an anabolic steroid ``means a 10 cc 
vial of an injectable steroid or fifty tablets.'' The proposed 
amendment presents two options for increasing penalties. Option One 
bases the offense level in an anabolic steroid offense on the 
``actual'' quantity of steroid involved in the offense and provides 
that one unit of an anabolic steroid means

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[25][50][100] mg of an anabolic steroid, regardless of the form 
involved in the offense (e.g., patch, cream, tablet, liquid). At 25 mg, 
sentencing penalties would be increased approximately 6-8 levels above 
current offense levels, and would closely approximate a 1:1 ratio with 
other Schedule III substances. At 50 mg, sentencing penalties would be 
increased approximately 4-6 levels above current offense levels, and at 
100 mg, sentencing penalties would be increased approximately 2-4 
levels above current offense levels. This option also includes a 
rebuttable presumption that the label, shipping manifest, or other 
similar documentation accurately reflects the purity of the steroid. 
Option Two eliminates the sentencing distinction between anabolic 
steroids and other Schedule III substances. Accordingly, if an anabolic 
steroid is in a pill, tablet, capsule, or liquid form, the court would 
sentence as it would in any other case involving a Schedule III 
substance. For anabolic steroids in other forms, the proposed amendment 
instructs the court that [1 unit means 25 mg and that] the court may 
determine the base offense level using a reasonable estimate of the 
quantity of anabolic steroid involved in the offense.
    The proposed amendment also provide new enhancements designed to 
capture aggravating harms involved in anabolic steroid cases. First, 
the proposed amendment amends Sec.  2D1.1 to provide an increase of two 
levels if the offense involved the distribution of a masking agent. A 
masking agent is a product added to, or taken with, an anabolic steroid 
to prevent the detection of the anabolic steroid in an individual's 
body. Second, the proposed amendment amends Sec.  2D1.1 to provide an 
increase of two levels if the defendant distributed an anabolic steroid 
to a professional, college, or high school athlete. Third, the proposed 
amendment presents two options for increasing penalties for coaches who 
distribute anabolic steroids to their athletes. Option One provides, as 
an alternative to the proposed enhancement for distribution to an 
athlete, a two-level increase in Sec.  2D1.1 if the defendant used the 
defendant's position as a coach of athletic activity to influence an 
athlete to use an anabolic steroid. Option Two amends Application Note 
2 of Sec.  3B1.3 (Abuse of Position of Trust or Use of Special Skill) 
to include a coach who uses his or her position to influence an athlete 
to use an anabolic steroid in the list of special circumstances to 
which the two level adjustment in Sec.  3B1.3 shall apply.
    Two issues for comment follow the proposed amendment. The first 
pertains to whether the Commission, when it repromulgates the proposed 
amendment as a permanent amendment, should expand the scope of the 
enhancements to cover all controlled substances, not just anabolic 
steroids. The second issues pertains to whether the penalties for 
steroid offenses should be based on quantities typical of offenses 
involving mid- and high-level dealers.
    Proposed Amendment: Section 2D1.1 is amended by redesignating 
subsections (b)(6) and (b)(7) as subsections (b)(8) and (b)(9), 
respectively; and by inserting the following after subsection (b)(5):
    ``(6) If the offense involved the distribution of (A) an anabolic 
steroid; and (B) a masking agent, increase by 2 levels.
    (7) If the defendant distributed an anabolic steroid to a 
professional, college, or high school athlete[; Option 1(for coach): or 
(B) the defendant used the defendant's position as a coach of an 
athletic activity to influence a professional, college, or high school 
athlete to use an anabolic steroid], increase by 2 levels. ]''.
    [Option 1 (for steroids): Section 2D1.1(c) is amended in the 
``*Notes to the Drug Quantity Table'' by striking subdivision (G) and 
inserting the following:
    ``(G) In the case of anabolic steroids, one `unit' means 
[25][50][100] mg of an anabolic steroid, regardless of the form (e.g., 
patch, topical cream, tablet, liquid). [There shall be a rebuttable 
presumption that the label, shipping manifest, or other similar 
documentation describing the type and purity of the anabolic steroid 
accurately reflects the purity of that steroid.]''.]
    [Option 2 (for steroids): Section 2D1.1(c) is amended in the 
``*Notes to the Drug Quantity Table'' in subdivision (F) by striking 
``(except anabolic steroids)''; and by adding at the end the following:
    ``For an anabolic steroid that is not in a pill, capsule, tablet, 
or liquid form (e.g. patch, topical cream, aerosol), [(A) one `unit' 
means [25] mg; and (B)] the court may determine the base offense level 
using a reasonable estimate of the quantity of anabolic steroid 
involved in the offense.''.
    Section 2D1.1(c) is amended in the ``*Notes to the Drug Quantity 
Table'' by striking subdivision (G).]
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended by striking ``(b)(6)'' and inserting ``(b)(8)'' each place it 
appears; and by striking ``(b)(7)'' and inserting ``(b)(9)'' each place 
it appears.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``24. Application of Subsection (b)(6).--For purposes of subsection 
(b)(6), `masking agent' means a product added to, or taken with, an 
anabolic steroid that prevents the detection of the anabolic steroid in 
an individual's body.
    25. Application of Subsection (b)(7).--For purposes of subsection 
(b)(7):
    `Athlete' means an individual who participates in an athletic 
activity conducted by (A) an intercollegiate athletic association or 
interscholastic athletic association; (B) a professional athletic 
association; or (C) an amateur athletic organization.
    `Athletic activity' means an activity that (A) has officially 
designated coaches; (B) conducts regularly scheduled practices or 
workouts that are supervised by coaches; and (C) has established 
schedules for competitive events or exhibitions.
    `College or high school athlete' means an athlete who is a student 
at an institution of higher learning (as defined in section 101 of the 
Higher Education Act of 1965 (20 U.S.C. 1001) or at a secondary school 
(as defined in section 9101 of the Elementary and Secondary Education 
Act of 1965 (20 U.S.C. 7801).
    `Professional athlete' means an individual who competes in a major 
professional league.''.
    The Commentary to Sec.  2D1.1 captioned ``Background'' is amended 
in the ninth paragraph by striking ``(b)(6)(A)'' and inserting 
``(b)(8)(A)''; and in the last paragraph by striking ``(b)(6)(B) and 
(C)'' and inserting ``(b)(8)(B) and (C)''.
    [Option 2 (for coaches): The Commentary to Sec.  3B1.3 captioned 
``Application Notes'' is amended in Note 2 in subdivision (A) by 
inserting ``Postal Service Employee.--'' before ``An employee''; in 
subdivision (B) by inserting ``Offenses Involving `Means of 
Identification'.--'' before ``A defendant''; and by adding at the end 
the following:
    ``(C) Coach of Athletic Activity.--A defendant who uses the 
defendant's position as a coach of an athletic activity to influence a 
professional, college, or high school athlete to use an anabolic 
steroid.
    For purposes of this guideline:
    (i) `Athlete' means an individual who participates in an athletic 
activity conducted by (I) an intercollegiate athletic association or 
interscholastic athletic association; (II) a professional athletic 
association; or (III) an amateur athletic organization.
    (ii) `Athletic activity' means an activity that (I) has officially 
designated coaches; (II) conducts regularly

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scheduled practices or workouts that are supervised by coaches; and 
(III) has established schedules for competitive events or exhibitions.
    (iii) `College, or high school athlete' means an athlete who is a 
student at an institution of higher learning (as defined in section 101 
of the Higher Education Act of 1965 (20 U.S.C. 1001) or at a secondary 
school (as defined in section 9101 of the Elementary and Secondary 
Education Act of 1965 (20 U.S.C. 7801).
    (iv) `Professional athlete' means an individual who competes in a 
major professional league.]''.
    Issues for Comment:
    (1) The Commission requests comment regarding whether, when the 
Commission re-promulgates the temporary, emergency amendment as a 
permanent amendment, it should expand the proposed enhancements in 
Sec.  2D1.1(b)(6) (pertaining to masking agents) and in Sec.  
2D1.1(b)(7) (pertaining to distribution of a steroid to an athlete) to 
cover offenses involving any controlled substance. Specifically, the 
proposed amendment defines ``masking agent'' as ``a product added to, 
or taken with, an anabolic steroid to prevent the detection of the 
anabolic steroid in an individual's body.'' However, masking agents 
also can be taken to prevent the detection of other controlled 
substances. The Commission requests comment regarding whether it should 
expand the definition of masking agent, and thus application of the 
enhancement, in a manner that covers all controlled substances, not 
just anabolic steroids. Similarly, there are controlled substances 
other than anabolic steroids that enhance an individual's performance. 
The Commission requests comment regarding whether the proposed 
enhancement pertaining to distribution to an athlete should be expanded 
to cover offenses involving all types of controlled substances.
    (2) The Commission requests comment regarding whether penalties for 
steroid offenses should be based on quantities typical of offenses 
involving mid- and high-level dealers. For more serious drug types 
(e.g., heroin, cocaine, marihuana), the Drug Quantity Table in Sec.  
2D1.1(c) provides an offense level of 26 for quantities typical of mid-
level dealers and an offense level of 32 for quantities typical of 
high-level dealers. These levels also correspond to the statutory 
mandatory minimum penalties for mid- and high-level dealers. Although 
there are no statutory mandatory minimum penalties establishing 
thresholds for steroid offenses, the Commission has been informed that 
a steroids dealer who provides the equivalent of one complete cycle to 
10 customers is considered to be a mid-level dealer, and a dealer who 
provides the equivalent of one complete cycle to 30 customers is 
considered to be a high-level dealer. Currently, offense levels in the 
Drug Quantity Table for anabolic steroids and other Schedule III 
substances begin at level 6 and are ``capped'' at level 20. Should the 
Commission provide a penalty structure within this range that targets 
offenses involving mid- and high-level steroid dealers, and if so, what 
offense levels should correspond to a mid-level dealer and to a high-
level dealer?

B. Proposed Non-Emergency Amendments

1. Immigration

    Synopsis of Proposed Amendment: This four part proposed amendment 
addresses issues involving immigration offenses. These issues were 
identified through review of HelpLine calls to the Commission, feedback 
from training seminars, receipt of public comment, and information 
staff gathered from an immigration roundtable discussion. Part One of 
the proposed amendment addresses issues relating to offenses sentenced 
under Sec.  2L1.1 (Smuggling, Transporting, or Harboring an Unlawful 
Alien). Part Two is a proposal to amend Sec.  2L2.1 (Trafficking in a 
Document Relating to Naturalization, Citizenship, or Legal Resident 
Status, or a United States Passport; False Statement in Respect to the 
Citizenship or Immigration Status of Another; Fraudulent Marriage to 
Assist Alien to Evade Immigration Law) and Sec.  2L2.2 (Fraudulently 
Acquiring Documents Relating to Naturalization, Citizenship, or Legal 
Resident Status for Own Use; False Personation or Fraudulent Marriage 
by Alien to Evade Immigration Law; Fraudulently Acquiring or Improperly 
Using a United States Passport). Part Three addresses issues relating 
to offenses sentenced under Sec.  2L1.2 (Unlawfully Entering or 
Remaining in the United States). Part Four presents issues for comment 
regarding the proposed amendment.
1. Section 2L1.1 (Smuggling, Transporting, or Harboring an Unlawful 
Alien)
    This part of the proposed amendment covers offenses sentenced under 
Sec.  2L1.1 (Smuggling, Transporting, or Harboring an Unlawful Alien).
A. National Security Concerns
    Currently, Sec.  2L1.1(a)(1) provides a base offense level of level 
23 if the defendant was convicted under 8 U.S.C. 1327 of a violation 
involving an alien who previously was deported after a conviction for 
an aggravated felony. Title 8, United States Code, section 1327, 
provides a statutory maximum term of imprisonment of 10 years for cases 
involving aiding or assisting certain aliens who pose a heightened risk 
to the safety of the citizens of the United States. However, Sec.  
2L1.1(a)(1) only applies to a limited subgroup of those convicted under 
Sec.  1327. This proposal provides three options to increase punishment 
for those defendants who assist ``inadmissible aliens'' in illegally 
entering the United States. All options retain the current base offense 
level of 23 for a defendant who has a conviction under 8 U.S.C. 1327 in 
a case in which the violation involved an alien ``who previously was 
deported after a conviction for an aggravated felony.'' Option One 
provides a base offense level of 25 for a defendant who is convicted of 
8 U.S.C. 1327 involving an alien who is inadmissable because of 
``security or related grounds'', as defined in 8 U.S.C. 1182(a)(3). 
Option Two provides a specific offense characteristic with an increase 
of [2-6] levels for defendants who smuggle, transport, or harbor an 
alien who was inadmissible under 8 U.S.C. 1182(a)(3). This option is 
relevant conduct based.
B. Number of Aliens
    The proposed amendment provides two options to amend Sec.  
2L1.1(b)(2) regarding the number of aliens involved in the offense. The 
first option maintains the current structure of the table, which 
provides a three-level increase for offenses involving six to 24 
aliens, a six-level increase for offenses involving 25 to 99 aliens, 
and a nine-level increase for offenses involving 100 or more aliens. 
Option One amends the table to provide a nine-level increase for 
offenses involving 100 to 199 aliens, a [12]-level increase for 
offenses involving 200 to 299 aliens, and a [15]-level increase for 
offenses involving 300 or more aliens. Option Two, in part mirrors 
Option One by providing the same increases at the top end of the table 
for offenses involving 100 or more aliens. However, Option Two also 
provides smaller categories at the low end of the table. Offenses 
involving six to [15] aliens would receive an increase of three levels, 
[16 to 49] aliens would receive an increase of [six] levels, and [50 to 
99] aliens would receive an increase of [nine] levels.
C. Endangerment of Minors
    The proposed amendment presents two options and an issue for 
comment to address offenses in which an alien

[[Page 4786]]

minor was smuggled, harbored, or transported. Option One provides a 
[2][4][6] level increase if the defendant smuggled, transported, or 
harbored a minor unaccompanied by the minor's parent. Option two 
provides a graduated increase, based upon the age of the minor 
smuggled, harbored, or transported. A four-level increase is provided 
for a defendant who smuggles a minor under the age of 12 who is 
unaccompanied by his or her parent. A two-level increase is provided 
for a defendant who smuggles a minor unaccompanied by his or her parent 
who has attained the age of 12 years, but has not attained the age of 
16 years.
D. Offenses Involving Death
    The amendment proposes several changes to the guideline in cases in 
which death occurred. First, the proposed amendment removes the 
increase of eight levels ``if death resulted'' from the current 
specific offense characteristic addressing bodily injury and places 
this increase in a stand alone specific offense characteristic. This 
new specific offense characteristic would provide an increase of [10] 
levels. Providing a separate specific offense characteristic for death 
allows for cumulative enhancements in a case in which both bodily 
injury and death occur. Additionally, the cross reference at Sec.  
2L1.1(c)(1) is expanded to cover deaths other than murder, if the 
resulting offense level is greater than the offense level determined 
under Sec.  2L1.1.
E. Abducting Aliens, or Holding Aliens for Ransom
    A [four]-level increase and a minimum offense level of [23] is 
proposed for cases in which an alien was kidnapped, abducted, or 
unlawfully restrained, or if a ransom demand was made. This proposed 
amendment addresses the concern about cases in which the unlawful 
aliens are coerced, with or without the use of physical force, or even 
with direct threats, into remaining in ``safe houses'' for long periods 
of time through coercion, implied threat, or deception. This is done so 
that the smugglers can get more money from the families of the aliens 
or so they will provide inexpensive labor. Currently, this conduct is 
not covered by Sec.  3A1.3 (Restraint of Victim) because that guideline 
only covers ``physical restraint''. The extent of the increase (four 
levels) is consistent with a similar enhancement in subsection 
(b)(7)(B) of Sec.  2A4.1 (Kidnapping, Abduction, Unlawful Restraint) 
and the minimum offense level of 23 is consistent with Sec.  2A4.2 
(Demanding or Receiving Ransom Money), which provides a base offense 
level of 23 for such offenses.
2. Sections 2L2.1 (Trafficking in a Document Relating to 
Naturalization, Citizenship, or Legal Resident Status, or a United 
States Passport; etc.) and 2L2.2 (Fraudulently Acquiring Documents 
Relating to Naturalization, Citizenship, or Legal Resident Status for 
Own Use; etc.)
    This part of the proposed amendment covers offenses sentenced under 
Sec. Sec.  2L2.1 (Trafficking in a Document Relating to Naturalization, 
Citizenship, or Legal Resident Status, or a United States Passport; 
etc.) and 2L2.2 (Fraudulently Acquiring Documents Relating to 
Naturalization, Citizenship, or Legal Resident Status for Own Use; 
etc.)
A. Number of Documents
    The proposed amendment provides two options in Sec.  2L2.1 to amend 
the specific offense characteristic involving the number of documents 
and passports involved in the offense. The two options are identical to 
the two options presented under Sec.  2L1.1 (Smuggling, Transporting, 
or Harboring an Unlawful Alien) to amend the specific offense 
characteristic (b)(2) regarding the number of aliens involved in the 
offense. The first option maintains the current structure of the table, 
which provides a three-level increase for offenses involving six to 24 
documents, a six-level increase for offenses involving 25 to 99 
documents, and a nine-level increase for offenses involving 100 or more 
documents. Option one amends the table to provide a nine-level increase 
for offenses involving 100 to 199 documents, a [12]-level increase for 
offenses involving 200 to 299 documents, and a [15]-level increase for 
offenses involving 300 or more documents. Option two, in part mirrors 
option one by providing the same increases at the top end of the table 
for offenses involving 100 or more documents. However, option two also 
provides smaller categories at the low end of the table. Offenses 
involving six to [15] documents would receive an increase of [three] 
levels, [16 to 49] documents would warrant an increase of [six] levels, 
and [50 to 99] documents would receive an increase of [nine] levels.
B. Fraudulently Obtaining or Using United States Passports or Foreign 
Passports
    The proposed amendment provides a new specific offense 
characteristic at Sec.  2L2.1(b)(5)(A) that provides a four-level 
increase in a case in which the defendant fraudulently used or obtained 
a United States passport. The same specific offense characteristic was 
added to Sec.  2L2.2, effective November 1, 2004. Addition of this 
specific offense characteristic promotes proportionality between the 
document fraud guidelines, Sec. Sec.  2L2.1 and 2L2.2. In addition, the 
proposed amendment also provides, at Sec.  2L2.1(b)(1)(B) and Sec.  
2L2.2(b)(3)(B), a two-level increase if the defendant fraudulently 
obtained or used a foreign passport.
3. Sec.  2L1.2 (Unlawfully Entering or Remaining in the United States)
    This part of the proposed amendment addresses issues relating to 
offenses sentenced under Sec.  2L1.2 (Unlawfully Entering or Remaining 
in the United States).
A. Alternative Approaches to Sentencing Under Sec.  2L1.2
    The current structure of Sec.  2L1.2 requires the court, using the 
``categorical approach'', to assess whether a prior conviction 
qualifies for a particular category under the guideline. This analysis 
is often complicated by lack of documentation, competing case law 
decisions, and the volume of cases. In addition, Sec.  2L1.2 contains 
different definitions of covered offenses from the statute. Courts, 
then, are faced with making these assessments multiple times in the 
same case. The proposed amendment provides five options to address the 
complexity of this guideline.
    The first, second, and third options amend the structure of Sec.  
2L1.2 by using the definition of aggravated felony in combination with 
the length of the sentence imposed for that prior felony conviction. 
Option one provides a 16-level increase for an aggravated felony in 
which the sentence of imprisonment imposed exceeded 13 months; a 12-
level increase for an aggravated felony in which the sentence of 
imprisonment imposed was less than 13 months; and an eight-level 
increase for all other aggravated felonies. Option two provides a 16-
level increase for an aggravated felony in which the sentence of 
imprisonment imposed exceeded two years; a 12-level increase for an 
aggravated felony in which the sentence of imprisonment imposed was at 
least one year, but less than two years; and an 8 level increase for 
all other aggravated felonies. Option three, mirroring the criminal 
history guidelines, provides a 16-level increase for an aggravated 
felony in which the sentence imposed exceeded 13 months; a 12-level 
increase for an aggravated felony in which the sentence imposed

[[Page 4787]]

was at least 60 days but did not exceed 13 months; and an 8 level 
increase for all other aggravated felonies.
    The fourth option maintains the current structure of Sec.  2L1.2, 
except that the categories of offenses delineated under this guideline 
are defined by 8 U.S.C.1101(a)(43), the statute providing definitions 
for ``aggravated felonies''. Additionally, this option provides use of 
length of sentence of imprisonment imposed in conjunction with ``crime 
of violence'' to further distinguish between the numerous types of 
prior convictions that fall within this category.
    Finally, the fifth option provides an increased base offense level 
and a reduction if the prior conviction is not a felony.
4. Issues for Comment
    Part 4 of the proposed amendment sets forth multiple issues for 
comment regarding the immigration guidelines and the proposed 
amendment.
    Proposed Amendment:
Part 1: Sec.  2L1.1

    [Please Note:
    For ease of presentation, the proposed amendments set forth in 
Part 1, Subparts A through E, are drafted independently of each 
other. If the Commission were to vote to adopt an amendment from 
each Subpart, technical and conforming amendments would be made to 
ensure proper redesignations of subsections and application notes.]

A. National Security Concerns
    [Option 1: Section 2L1.1 is amended by redesignating subsections 
(a)(1) and (a)(2) as subsections (a)(2) and (a)(3), respectively; and 
by inserting after ``Level:'' the following:
    ``(1) [25], if the defendant was convicted under 8 U.S.C. 1327 of a 
violation involving an alien who was inadmissible under 8 U.S.C. 
1182(a)(3);''; and in subsection (a)(3), as redesignated by this 
amendment, by striking ``12'' and inserting ``[12][14]''.
    The Commentary to Sec.  2L1.1 captioned ``Application Notes'' is 
amended by redesignating Notes 2 through 6 as Notes 3 through 7, 
respectively; and by inserting after Note 1 the following:
    ``2. Application of Subsection (a)(1).--Subsection (a)(1) applies 
in cases in which the defendant is convicted under 18 U.S.C. 1327 of 
knowingly smuggling certain aliens inadmissible under 8 U.S.C. 
1182(a)(3). Section 1327 requires that the defendant know that the 
alien is ineligible to be admitted into the United States, however, it 
does not require that the defendant have specific knowledge as to why 
the defendant is ineligible for admission.''.]
    [Option 2 (for national security): Section 2L1.1 is amended by 
redesignating subsections (b)(3) through (b)(6) as subsections (b)(4) 
through (b)(7), respectively; and by inserting after subsection (b)(2) 
the following:
    ``(3) If the defendant smuggled, transported, or harbored an alien 
who was inadmissible under 8 U.S.C. 1182(a)(3), increase by [2][4][6] 
levels.''.]
B. Number of Aliens
    [Option 1: Section 2L1.1(b)(2) is amended by striking subdivision 
(C) and inserting the following:
    ``(C) 100-199 add 9
    (D) 200-299 add [12]
    (E) 300 or more add [15].''.]
    [Option 2: Section 2L1.1(b)(2) is amended by striking subdivisions 
(A) through (C) and inserting the following:
    ``(A) 6-[15] add 3
    (B) [16-49] add [6]
    (C) [50-99] add [9]
    (D) [100-199] add [12]
    (E) [200-299] add [15]
    (F) [300 or more] add [18].''.]
    The Commentary to Sec.  2L1.1 captioned ``Application Notes'' is 
amended in Note 4 by inserting ``Application of Subsection (b)(2).--'' 
before ``If''; and by striking ``100'' and inserting ``300''.
C. Endangerment of Minors
    Section 2L1.1 is amended by redesignating subsections (b)(3) 
through (b)(6) as subsections (b)(4) through (b)(7), respectively; and 
by inserting the following after subsection (b)(2):
    [Option 1:
    ``(3) If the defendant smuggled, transported, or harbored a minor 
who was unaccompanied by the minor's parent, increase by [2][4][6] 
levels.''.]
    [Option 2:
    ``(3) If (A) the defendant smuggled, transported, or harbored a 
minor who was unaccompanied by the minor's parent; and (B) the minor 
(i) had not attained the age of 12 years, increase by [4] levels; or 
(ii) had attained the age of 12 years but had not attained the age of 
16 years, increase by [2] levels.''.]
D. Offenses Involving Death
    Subsection (b)(6) is amended by striking ``died or''; by striking 
``Death or''; by redesignating subdivisions (1) through (3) as 
subdivisions (A) through (C), respectively; by inserting a period after 
``6 levels''; and by striking subdivision (4).
    Section 2L1.1 is amended by inserting after subsection (b)(6) the 
following:
    ``(7) If the offense resulted in the death of any person, increase 
by [10] levels.''.
    Subsection 2L1.1 is amended by striking subsection (c) and 
inserting the following:
    ``(c) Cross Reference
    (1) If death resulted, apply the appropriate homicide guideline 
from Chapter Two, Part A, Subpart 1, if the resulting offense level is 
greater than that determined under this guideline.''.
E. Abducting Aliens or Holding Aliens for Ransom
    Section 2L1.1(b) is amended by adding at the end the following:
    ``(7) If an alien was kidnapped, abducted, or unlawfully 
restrained, or if a ransom demand was made, increase by [4] levels. If 
the resulting offense level is less than level [23], increase to level 
[23].''.
Part 2: Sec. Sec.  2L2.1 and 2L2.2
A. Number of Documents
    [Option 1: Subsection 2L2.1(b)(2) is amended by striking 
subdivision (C) and inserting the following:
    ``(C) 100-199 add 9
    (D) 200-299 add [12]
    (E) 300 or more add [15].''.]
    [Option 2: Section 2L2.1(b)(2) is amended by striking subdivisions 
(A) through (C) and inserting the following:
    ``(A) 6-[15] add 3
    (B) [16-49] add [6]
    (C) [50-99] add [9]
    (D) [100-199] add [12]
    (E) [200-299] add [15]
    (F) [300 or more] add [18].''.]
    The Commentary to Sec.  2L2.1 captioned ``Application Notes'' is 
amended in Note 5 by inserting ``Application of Subsection (b)(2).--'' 
before ``If''; and by striking ``100'' and inserting ``300''.
B. Fraudulently Obtaining or Using United States Passports or Foreign 
Passports
    Section 2L2.1(b) is amended by adding at the end the following:
    ``(5) If the defendant fraudulently obtained or used (A) a United 
States passport, increase by 4 levels; or (B) a foreign passport, 
increase by 2 levels.''.
    Section 2L2.2(b)(3) is amended by inserting ``(A)'' after ``used'' 
and by inserting ``; or (B) a foreign passport, increase by 2 levels'' 
after ``4 levels''.
Part 3: Sec.  2L1.2
    [Option 1: Section 2L1.2(b)(1) is amended by striking subdivisions 
(A) and (B) and inserting the following:
    ``(A) a conviction for an aggravated felony for which a sentence of 
imprisonment exceeding 13 months was imposed, increase by 16 levels;
    ``(B) a conviction for an aggravated felony for which a sentence of 
imprisonment of 13 months or less was imposed, increase by 12 
levels;''; and in subdivision (C) by inserting ``not covered by 
subdivision (b)(1)(A) or (b)(1)(B)'' after ``felony''.]

[[Page 4788]]

    (Option 2: Section 2L1.2(b)(1) is amended by striking subdivisions 
(A) and (B) and inserting the following:
    ``(A) a conviction for an aggravated felony for which the sentence 
imposed exceeded 2 years, increase by 16 levels;
    (B) a conviction for an aggravated felony for which the sentence 
imposed was at least 12 months but did not exceed 2 years, increase by 
12 levels;''; and in subdivision (C) by inserting ``not covered by 
subdivision (b)(1)(A) or (b)(1)(B)'' after ``felony''.]
    [Option 3: Section 2L1.2(b)(1) is amended by striking subdivisions 
(A) and (B) and inserting the following:
    ``(A) a conviction for an aggravated felony for which the sentence 
imposed exceeded 13 months, increase by 16 levels;
    (B) a conviction for an aggravated felony for which the sentence 
imposed was at least 60 days but did not exceed 13 months, increase by 
12 levels;''; and in subdivision (C) by inserting ``not covered by 
subdivision (b)(1)(A) or (b)(1)(B)'' after ``felony''.]


    [Please Note:
    The following proposed Commentary amendments would be used with 
Options 1, 2, and 3)]:


    The Commentary to Sec.  2L1.2 captioned ``Application Notes'' is 
amended in Note 1 by striking subdivisions (B)(i) through (B)(viii) and 
inserting the following:
    ``(i) `Aggravated felony' has the meaning given that term in 
section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. 
1101(a)(43)), without regard to the date of conviction for the 
aggravated felony.
    (ii) `Aggravated felony not covered by subdivision (b)(1)(A) or 
(b)(1)(B)' means an aggravated felony for which the sentence imposed 
was a sentence other than imprisonment (e.g., probation).
    (iii) `Felony' means any Federal, State, or local offense 
punishable by imprisonment for a term exceeding one year.
    (iv) `Sentence of imprisonment' has the meaning given that term in 
Application Note 2 and subsection (b) of Sec.  4A1.2 (Definitions and 
Instructions for Computing Criminal History), without regard to the 
date of the conviction. The length of the sentence imposed includes any 
term of imprisonment given upon revocation of probation, parole, or 
supervised release.''.
    The Commentary to Sec.  2L1.2 captioned ``Application Notes'' is 
amended by striking Notes 2 and 3; and by redesignating Notes 4 through 
6 as Notes 2 through 4, respectively.
    [Option 4: Section 2L1.2(b) is amended in subdivision (A) by 
striking ``a felony'' and inserting ``an aggravated felony''; and by 
inserting ``for which the sentence imposed exceeded 13 months'' after 
``violence''; in subdivision (B) by striking ``a felony'' and inserting 
``an aggravated felony that is a (i)''; by striking the comma after 
``less'' and inserting ``; (ii) crime of violence for which the 
sentence imposed was 13 months or less,''; and in subdivision (C) by 
inserting ``not covered by subdivision (b)(1)(A) or (b)(1)(B)'' after 
``felony''.
    The Commentary to Sec.  2L1.2 captioned ``Application Notes'' is 
amended in Note 1 by striking subdivisions (B)(ii) through (B)(vi) and 
inserting the following:
    ``(ii) `Child pornography offense' is an offense described in 8 
U.S.C. 1101(a)(43)(I).
    (iii) `Crime of violence' has the meaning given that term in 18 
U.S.C. 16.
    (iv) `Drug trafficking offense' has the meaning given that term in 
18 U.S.C. 924(c).
    (v) `Firearms offense' is an offense described in 8 U.S.C. 
1101(a)(43)(C) and (E).
    (vi) `Human trafficking offense' is an offense described in 8 
U.S.C. 1101(a)(43)(K).''; and by striking subdivision (B)(viii) and 
inserting the following:
    ``(viii) `National security or terrorism offense' is an offense 
described in 8 U.S.C. 1101(a)(43)(L).''.]
    [Option 5: Section 2L1.2 is amended in subsection (a) by striking 
``8'' and inserting ``[16][20][24]''; and by striking subsection (b)(1) 
and inserting the following:
    ``(1) If the defendant does not have a prior conviction for a 
felony, decrease by [8][6][4] levels.''.
    The Commentary to Sec.  2L1.2 captioned ``Application Notes'' is 
amended by striking Notes 1, 3, 4, and 6; by redesignating Notes 2 and 
5 as Notes 1 and 2, respectively.
Part 4. Issues for Comment
    (1) The proposed amendment to Sec.  2L1.1 provides options for 
addressing defendants who smuggle, transport, or harbor any alien who 
is inadmissible under 8 U.S.C. 1182(a)(3). Certain sections of 8 U.S.C. 
1182(a)(3), however, are very broad, such as subsection (a)(3)(A)(iii) 
(pertaining to inadmissibility due to an intent to commit ``any other 
unlawful activity''), or are unrelated to the national security risks 
associated with terrorism, such as subsections (a)(3)(D) (pertaining to 
membership in a totalitarian party) and (a)(3)(E) (pertaining to 
participants in Nazi persecutions). The Commission requests comment 
regarding whether it should more specifically identify, for purposes of 
either a heightened base offense level or a specific offense 
characteristic, the subsections of 8 U.S.C. 1182(a)(3) that pertain to 
terrorism or to other national security provisions. For example, should 
either a heightened base offense level or a specific offense 
characteristic be limited to 8 U.S.C. 1182(a)(3)(A)(i) (pertaining to 
espionage or sabotage), (a)(3)(A)(iii) (pertaining to overthrow of the 
United States Government), (a)(3)(B) (pertaining to terrorist 
activities), and (a)(3)(F) (pertaining to association with terrorist 
organizations)?
    Additionally, the Commission requests comment regarding whether 
Sec.  2L1.1 should provide a heightened base offense level if the 
defendant were convicted under 8 U.S.C. 1327 (Aiding or assisting 
certain aliens to enter) and a specific offense characteristic that 
would apply cumulatively if the defendant smuggled, transported, or 
harbored an alien the defendant knew to be inadmissible under 8 U.S.C. 
1182(a)(3).
    (2) The proposed amendment provides new specific offense 
characteristics that are defendant-based (i.e., the defendant's 
liability is limited to the defendant's own conduct and conduct that 
the defendant aided or abetted, counseled, commanded, induced, 
procured, or willfully caused) rather than offense-based (i.e., 
expanded relevant conduct). See proposed amendment, Sec.  2L1.1(b)(3) 
(pertaining to smuggling inadmissible aliens) and (b)(4) (pertaining to 
smuggling a minor unaccompanied by the minor's parent). The Commission 
requests comment regarding whether these specific offense 
characteristics should be offense based rather than defendant based. 
Alternatively, should the proposed enhancement in Sec.  2L1.1(b)(10) 
(pertaining to kidnapping an alien) be defendant-based rather than 
offense-based, as it is currently proposed?
    (3) The proposed amendment to Sec.  2L1.1 includes an enhancement 
for a defendant who smuggled, transported, or harbored a minor who was 
unaccompanied by the minor's parent. The Commission requests comment 
regarding whether such conduct is better addressed in the context of 
Sec.  3A1.1 (Hate Crime Motivation or Vulnerable Victim).
    (4) The Commission requests comment regarding whether it should 
increase the base offense levels in Sec. Sec.  2L2.1 and 2L2.2.
    (5) Currently, Sec.  2L2.2 provides an increase of four levels if 
the defendant fraudulently obtained or used a United States passport. 
The proposed amendment would add this

[[Page 4789]]

enhancement to Sec.  2L2.1 and also provide an enhancement of two 
levels in both Sec. Sec.  2L2.1 and 2L2.2 if the defendant fraudulently 
obtained or used a foreign passport. As an alternative to the proposed 
amendment, the Commission requests comment regarding whether it should 
provide a [four-level] enhancement in both Sec. Sec.  2L2.1 and 2L2.2 
regardless of whether the passport was issued by the United States or a 
foreign country. Additionally, the Commission requests comment 
regarding whether other types of documents should be included in the 
enhancement. If so, what types of documents should be included? For 
example, should the proposed 2-level enhancement also apply in the case 
of a defendant who fraudulently obtains or used a driver's license?
    Additionally, the Commission requests comment regarding whether it 
should provide an application note in Sec. Sec.  2L2.1 and 2L2.2 that 
instructs the court not to apply Sec.  2L2.1(b)(2), proposed Sec.  
2L2.1(b)(5), or Sec.  2L2.2(b)(3) if the documents are so obviously 
counterfeit that they are unlikely to be accepted even if subjected to 
only minimal scrutiny. The guidelines currently provide such an 
application note in Sec.  2B5.1 (Offenses Involving Counterfeit Bearer 
Obligations of the United States).
    (6) The Commission requests comment regarding whether the prior 
convictions used to increase a defendant's offense level under Sec.  
2L1.2 should be subject to the rules of criminal history found at Sec.  
4A1.2. For example, if a prior conviction is too old to be counted for 
the purposes of criminal history, should that prior conviction also be 
too old to count for the purposes of Sec.  2L1.2? Alternatively, should 
such a conviction be the basis for a reduction?
    (7) Before May 1997, the table for number of aliens in Sec.  
2L1.1(b)(2) provided increases of two level increments. In May 1997, in 
response to a directive to increase the enhancement in Sec.  
2L1.1(b)(2) by at least 50 percent (see section 203 of the Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. 
104-208), the Commission amended the table to provide increases of 
three level increments. At that time, the Commission also similarly 
amended the table in Sec.  2L2.1 pertaining to the number of documents. 
The Commission requests comment regarding whether it should amend these 
tables to provide increases of two level increments. Any such change 
would be done in a manner that complies with the directive in the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
    (8) As an alternative to Option 5 for amending Sec.  2L1.2, the 
Commission requests comment regarding whether it should provide a 
guideline that is in essence an inversion of the current structure of 
Sec.  2L1.2. Currently, Sec.  2L1.2 provides increases based on the 
type of prior conviction. Should the Commission consider multiple 
reductions based on the type of prior conviction?

2. Firearms

    Synopsis of Proposed Amendment: This proposed amendment addresses 
various issues pertaining to the firearms guideline, Sec.  2K2.1 
(Unlawful Receipt, Possession, or Transportation of Firearms or 
Ammunition; Prohibited Transactions Involving Firearms or Ammunition), 
and to other firearm provisions in the guidelines.
    First, the proposed amendment addresses offenses involving a weapon 
described in 18 U.S.C. 921(a)(30), which expired on September 13, 2004. 
Although possession of such a weapon is no longer covered by 18 U.S.C. 
921, possession of certain weapons, particularly by a prohibited 
person, may still be considered an aggravating factor warranting an 
increase in the base offense level. The proposed amendment presents two 
options for providing increases for possession of weapons previously 
covered by 18 U.S.C. 921(a)(30). Currently, Sec.  2K2.1 has four base 
offense level provisions that are triggered by the offense involving 
such a weapon. Under Option One, each of the four base offense level 
provisions would be based on whether ``the offense involved a firearm 
that is a high-capacity, semiautomatic firearm.'' ``High-capacity, 
semiautomatic firearm'' would be defined as ``a semiautomatic firearm 
that has a magazine capacity of more than [15] cartridges.'' Option Two 
would provide an upward departure if the offense involved a high-
capacity semiautomatic firearm. The proposed amendment also presents an 
issue for comment regarding this definition and whether any similar 
changes should be made to Sec.  5K2.17 (High-capacity, Semiautomatic 
Firearms).
    Second, the proposed amendment provides a [2-][4-]level enhancement 
in Sec.  2K2.1 if the defendant engaged in the trafficking of [2-24] 
firearms, and a [6-][8-] level enhancement if the defendant engaged in 
the trafficking of [25 or more] firearms. Although there is no 
definition of trafficking in the firearm statutes, the proposed 
amendment borrows from the statutory definition of ``traffic'' found in 
other sections of the United States Code (see, e.g., 18 U.S.C. 
1028(d)(12), and 2318). The proposed amendment, however, modifies the 
statutory definition in two ways. The first modification pertains to 
consideration and two options are presented. Option One would result in 
application of the enhancement whenever a firearm was transferred as 
consideration for anything of value. (This option would be consistent 
with the statutory definitions of ``traffic''.) Option Two would result 
in application of the enhancement only if the transfer was made for 
pecuniary gain. The second modification is to include ongoing schemes 
to transport or transfer firearms to another individual, even if 
nothing of value was exchanged. The proposed amendment also presents an 
issue for comment regarding the proposed definition of ``trafficking''.
    Third, the proposed amendment modifies Sec.  2K2.1(b)(4) to 
increase the penalties for offenses involving altered or obliterated 
serial numbers. Under the proposed amendment, a 2-level enhancement 
would continue to apply to offenses involving a stolen firearm. 
However, the proposed amendment would provide a 4-level enhancement for 
offenses involving altered or obliterated serial numbers. The 4-level 
increase reflects the difficulty in tracing firearms with altered or 
obliterated serial numbers. The proposed amendment also makes slight 
technical changes to the corresponding application note.
    Fourth, the proposed amendment addresses a circuit conflict 
pertaining to application of Sec. Sec.  2K2.1(b)(5) and (c)(1), 
specifically with respect to the meaning of use of a firearm ``in 
connection with'' another offense in the context of burglary and drug 
offenses. The majority of circuits have adopted a standard consistent 
with Smith v. United States, 508 U.S. 223 (1993), in which the Supreme 
Court determined the scope of ``in relation to'' as that term is used 
in 18 U.S.C. 924(c). The proposed amendment accordingly provides that 
Sec. Sec.  2K2.1(b)(5) and (c)(1) apply if the firearm facilitated, or 
had the potential of facilitating, another felony offense or another 
offense, respectively. However, the courts are split as to how this 
standard then applies with respect to burglary and drug offenses. For 
ease of presentation, the proposed amendment presents options in terms 
of whether the presence of a firearm by mere coincidence during the 
course of a burglary or drug offense ``facilitated or had the potential 
of facilitating'' another offense. Option One provides that the mere 
presence of a firearm during the course of burglary or a drug offense 
is

[[Page 4790]]

sufficient because the firearm emboldens the defendant. Option Two 
states that the mere presence of a firearm is not sufficient except in 
a drug offense. Accordingly, the enhancement in Sec.  2K2.1(b)(5), or 
the cross reference in Sec.  2K2.1(c)(1) would not apply in the case of 
a defendant who takes a firearm during a burglary, but it would apply 
in a drug offense because the mere presence of a firearm in a drug 
offense increases the risk of violence. Option Three provides that the 
mere presence is not enough to trigger either Sec.  2K2.1(b)(5) or 
Sec.  2K2.1(c)(1). (Please note that the proposed definitions of 
``another felony offense'' and ``another offense'', as well as the 
upward departure note, are not new--the proposed language is a 
technical reworking of current Application Notes 4, 11, and 15.)
    Fifth, the proposed amendment modifies Sec.  5K2.11 (Lesser Harms) 
to prohibit a downward departure in any case in which a defendant is 
convicted under 18 U.S.C. 922(g).
    Finally, the proposed amendment addresses the circuit conflict 
regarding whether pointing or waving a firearm at a specific person 
constitutes ``brandishing'' or ``otherwise using''. The proposed 
amendment presents three options. Option One combines brandished and 
otherwise used with respect to firearms under the theory that the same 
risk of harm, and the same fear, exists whether a firearm is generally 
waved about or specifically pointed at a particular individual. Under 
this approach, otherwise using and brandishing with respect to a 
firearm would result in the same sentencing increase in Sec. Sec.  
2B3.1 (Robbery) and 2B3.2 (Extortion by Force or Threat of Injury or 
Serious Damage). However, the proposed amendment would maintain the 
distinction between otherwise using or brandishing with respect to 
other dangerous weapons. Additionally, this option provides that 
generally waving a firearm would constitute otherwise used. Following 
this option, the proposed amendment presents an issue for comment 
regarding whether the Commission, if it adopts this approach, should 
make similar changes to other guidelines that have an enhancement for 
brandishing and otherwise using a firearm. Option Two presents the 
majority and minority circuit court views. The majority view holds that 
generally waiving or pointing a firearm constitutes brandishing but 
pointing a firearm at a specific individual to make an explicit or 
implicit threat, or as a means of forcing compliance, constitutes 
otherwise used. The minority view holds that pointing a firearm, even 
if it is pointed at a specific person, is brandishing. In the non-
firearms context, otherwise used necessarily includes the most extreme 
thing that can be done with a weapon (i.e., using it to injure or 
attempt to injure a victim). Accordingly, these courts hold a firearm 
must similarly be used to injure or attempt to injure a victim in order 
to constitute otherwise used, and to hold otherwise would be to 
obliterate the guidelines' definition of otherwise used.

Proposed Amendment

(A) 18 U.S.C. 921(a)(30)
    [Option 1:
    Section 2K2.1(a) is amended by striking subdivision (1) and 
inserting the following:
    ``(1) 26, if (A) the offense involved a firearm that is a high-
capacity, semiautomatic firearm, or that is described in 26 U.S.C. 
5845(a); and (B) the defendant committed any part of the instant 
offense subsequent to sustaining at least two felony convictions of 
either a crime of violence or a controlled substance offense;''; by 
striking subdivision (3) and inserting the following:
    ``(3) 22, if (A) the offense involved a firearm that is a high-
capacity, semiautomatic firearm, or that is described in 26 U.S.C. 
5845(a); and (B) the defendant committed any part of the instant 
offense subsequent to sustaining one felony conviction of either a 
crime of violence or a controlled substance offense;''; by striking 
subdivision (4)(B) and inserting the following:
    ``(B) the offense involved a firearm that is a high-capacity, 
semiautomatic firearm, or that is described in 26 U.S.C. 5845(a); and 
the defendant (i) was a prohibited person at the time the defendant 
committed the instant offense; or (ii) is convicted under 18 U.S.C. 
922(d);''; and by striking subdivision (5) and inserting the following:
    ``(5) 18, if the offense involved a firearm that is a high-
capacity, semiautomatic firearm, or that is described in 26 U.S.C. 
5845(a);''.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended in Note 1 by inserting after the paragraph that begins `` 
`Firearms' has'' the following:
    ``High-capacity, semiautomatic firearm'' means a semiautomatic 
firearm that has a magazine capacity of more than [15] cartridges.''.]
    [Option 2:
    Section 2K2.1(a) is amended in subdivision (1) by inserting ``(A)'' 
after ``26, if''; by striking ``or 18 U.S.C. 921(a)(30),'' and 
inserting a colon; and by inserting ``(B)'' before ``the defendant''; 
in subdivision (3) by inserting ``(A)'' after ``22, if''; by striking 
``or 18 U.S.C. 921(a)(30),'' and inserting a colon; and by inserting 
``(B)'' before ``the defendant''; in subdivision (4)(B) by striking 
``or 18 U.S.C. 921(a)(30)''; and in subdivision (5) by striking ``or 18 
U.S.C. 921(a)(30)''.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended by striking Note 11, as redesignated by Part D of this proposed 
amendment, and inserting the following:
    ``11. Upward Departure Provision.''--An upward departure may be 
warranted in any of the following circumstances: (A) the offense 
involved a high-capacity, semiautomatic firearm; (B) the number of 
firearms substantially exceeded 200; (C) the offense involved multiple 
National Firearms Act weapons (e.g., machineguns, destructive devices), 
military type assault rifles, non-detectable (``plastic'') firearms 
(defined at 18 U.S.C. 922(p); (D) the offense involved large quantities 
of armor-piercing ammunition (defined at 18 U.S.C. 921(a)(17)(B)); or 
(E) the offense posed a substantial risk of death or bodily injury to 
multiple individuals (see Application Note 8). For purposes of this 
guideline, `high-capacity, semiautomatic firearm' means a semiautomatic 
firearm that has a magazine capacity of more than [15] cartridges.''.]
    Issue for Comment: The proposed amendment uses as a basis for 
providing enhanced base offense levels or, alternatively, for an upward 
departure. The Commission requests comment regarding whether there is 
an alternative definition that it should consider. Additionally, are 
there other categories of firearms or types of firearms that should 
form the basis for either an enhanced base offense level or for an 
upward departure? Finally, should the Commission make similar changes 
to the definition of ``high-capacity, semiautomatic firearm'' in Sec.  
5K2.17 (High-Capacity, Semiautomatic Firearms)?
(B) Trafficking SOC
    Section 2K2.1(b) is amended by adding at the end the following:
    ``(7) If the defendant engaged in the trafficking of (A) [[2]-24] 
firearms, increase by [2][4] levels; or (B) [25 or more] firearms, 
increase by [6][8] levels.''.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'', as 
amended by Part D of this proposed amendment, is amended by adding at 
the end the following:

[[Page 4791]]

    ``13. Application of Subsection (b)(7).--
    (A) Definition of `Trafficking'.--For purposes of subsection 
(b)(7), `trafficking' means transporting, transferring, or otherwise 
disposing of, [firearms][a firearm] to another individual, (i) [as 
consideration for anything of value][for pecuniary gain]; or (ii) as 
part of an ongoing unlawful scheme, even if nothing of value was 
exchanged.
    (B) Use of the Term `Defendant'.--Consistent with Sec.  1B1.3 
(Relevant Conduct), 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.''.
    Issue for Comment: The Commission requests comment regarding 
whether the definition of trafficking should be restricted to offenses 
in which the defendant knew, had reason to believe, or was wilfully 
blind to the fact, that the transfer would be to an individual whose 
possession or receipt would be unlawful. Additionally, should the 
definition include receiving firearms from another individual.
(C) Stolen and Altered or Obliterated Serial Numbers
    Section 2K2.1(b) is amended by striking subdivision (4) and 
inserting the following:
    ``(4) (Apply the greater):
    (A) If any firearm was stolen, increase by 2 levels; or
    (B) If any firearm had an altered or obliterated serial number, 
increase by 4 levels.''.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended by striking Note 8, as redesignated by Part D of this 
amendment, and inserting the following:
    ``8. Application of Subsection (b)(4).--
    (A) Interaction with Subsection (a)(7).--If the only offense to 
which Sec.  2K2.1 applies is 18 U.S.C. 922(i), (j), or (u), or 18 
U.S.C. 924(l) or (m) (offenses involving a stolen firearm or stolen 
ammunition) and the base offense level is determined under subsection 
(a)(7), do not apply the adjustment in subsection (b)(4)(A). This is 
because the base offense level takes into account that the firearm or 
ammunition was stolen. However, it the offense involved a firearm with 
an altered or obliterated serial number, apply subsection (b)(4)(B).
    Similarly, if the offense to which Sec.  2K2.1 applies is 18 U.S.C. 
922(k) or 26 U.S.C. 5861(g) or (h) (offenses involving an altered or 
obliterated serial number) and the base offense level is determined 
under subsection (a)(7), do not apply the adjustment in subsection 
(b)(4)(B). This is because the base offense level takes into account 
that the firearm had an altered or obliterated serial number. However, 
it the offense involved a stolen firearm or stolen ammunition, apply 
subsection (b)(4)(A).
    (B) Knowledge or Reason to Believe.--Subsection (b)(4) applies 
regardless of whether the defendant knew or had reason to believe that 
the firearm was stolen or had an altered or obliterated serial 
number.''.
    (D) ``In Connection with'' in Burglary and Drug Offenses
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended by striking Notes 4, 11, and 15; and by redesignating Notes 5 
through 10 as Notes 4 through 9, respectively; and by redesignating 
Notes 12 through 14 as Notes 10 through 12, respectively.''.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'', as 
amended by Part (B) of this amendment, is amended by adding at the end 
the following:
    ``14. `In Connection With'.--
    (A) In General.--Subsections (b)(5) and (c)(1) apply if the firearm 
or ammunition facilitated, or had the potential of facilitating, 
another felony offense or another offense, respectively.
    [Option One (mere coincidence enough because emboldens defendant):
    (B) `Mere Coincidence'.--Subsection (b)(5) and (c)(1) apply in a 
case in which the firearm is present by mere coincidence because the 
firearm has the potential of facilitating another felony offense, or 
another offense, respectively. For example, subsections (b)(5) and 
(c)(1) would apply in a case in which a defendant who, during the 
course of a burglary, finds and takes the firearm, even if the 
defendant did not engage in any other conduct with that firearm during 
the course of the burglary. Similarly, in a case involving a drug 
offense, the mere presence of a firearm is sufficient for application 
of subsections (b)(5) and (c)(1).]
    [Option Two (mere coincidence not enough except in drug cases):
    (B) `Mere Coincidence'.--Except as provided in subdivision (C), 
application of subsection (b)(5) or (c)(1) requires that the firearm be 
present by more than mere coincidence. For example, neither subsection 
(b)(5) nor subsection (c)(1) would apply in a case in which a defendant 
who, during the course of a burglary, finds and merely takes the 
firearm, without engaging in any other conduct with that firearm during 
the course of the burglary. However, if the defendant subsequently 
engages in conduct that is separate and distinct from the initial 
taking of the firearm, subsection (b)(5) or subsection (c)(1) would 
apply.
    (C) Application in Drug Cases.--In a case involving a drug offense, 
the mere presence of a firearm is sufficient for application of 
subsections (b)(5) and (c)(1) because of the increased risk of violence 
when a firearm is present during a drug offense. For example, 
subsections (b)(5) and (c)(1) would apply in the case of a defendant 
who, in the course of a drug trafficking offense, keeps a firearm in 
close proximity to the drugs, to drug-manufacturing materials, or to 
drug paraphernalia.]
    [Option Three (mere coincidence not enough):
    (B) `Mere Coincidence'.--Application of subsection (b)(5) or (c)(1) 
requires that the firearm be present by more than mere coincidence. For 
example, neither subsection (b)(5) nor subsection (c)(1) would apply in 
a case in which a defendant who, during the course of a burglary, finds 
and merely takes the firearm, without engaging in any other conduct 
with that firearm during the course of the burglary. Similarly, in a 
case involving a drug offense, the mere presence of a firearm is not 
sufficient for purposes of applying subsection (b)(5) or (c)(1); there 
must be some indication that the firearm was used or possessed to 
protect the defendant engaged in the drug offense or to protect the 
drugs from theft.]


    [Please Note:
    Subdivisions (C) and (D) to be used with Options One, Two, and 
Three]


    (C) Definitions.--
    `Another felony offense', for purposes of subsection (b)(5), means 
any Federal, State, or local offense, other than the explosive or 
firearms possession or trafficking offense, punishable by imprisonment 
for a term exceeding one year, regardless of whether a criminal charge 
was brought, or a conviction obtained.
    `Another offense', for purposes of subsection (c)(1), means any 
Federal, State, or local offense other than the explosive or firearms 
possession or trafficking offense.
    (D) Upward Departure Provision.--In a case in which the defendant 
used or possessed a firearm or explosive to facilitate another firearms 
or explosives offense (e.g., the defendant used or possessed a firearm 
to protect the delivery of an unlawful shipment of explosives), an 
upward departure under Sec.  5K2.6 (Weapons and Dangerous 
Instrumentalities) may be warranted.]''.

[[Page 4792]]

(E) Lesser Harms and Felon in Possession
    Section 5K2.11 is amended in the second paragraph by adding at the 
end the following:
    ``However, lesser harms is not an appropriate basis for a downward 
departure in any case in which a defendant is convicted under 18 U.S.C. 
922(g), even if the possession of a firearm were brief or existed 
because the defendant was disposing, or attempting to dispose of, a 
firearm.''.
(F) ``Brandished'' or ``Otherwise Used''
    [Option 1 (Combining Brandished and Otherwise Used plus modified 
majority view):
    The Commentary to Sec.  1B1.1 captioned ``Application Notes'' is 
amended in Note 1 in subdivision (I) by adding at the end the 
following:
    ``For example, using a firearm or a bat to hit a victim would 
constitute `otherwise used'. Additionally, with respect to a firearm, 
generally pointing or waving a firearm in a threatening manner 
constitutes `otherwise used'.''.
    Section 2B3.1(b)(2) is amended in subdivision (B) by inserting 
``brandished or'' after ``firearm was''; and in subdivision (C) by 
striking ``brandished or'' before ``possessed,''.
    Section 2B3.2(b)(3) is amended in subdivision (A)(ii) by inserting 
``brandished or `` after ``firearm was''; and in subdivision (A)(iii) 
by striking ``brandished or'' before ``possessed''.].
    [Option 2 (presenting majority and minority views):
    [(Option 2A) (majority view): The Commentary to Sec.  1B1.1 
captioned ``Application Notes'' is amended in Note 1 by striking 
subdivision (C) and inserting the following:
    ``(C) `Brandished' with reference to a dangerous weapon (including 
a firearm) means (i) all or part of the weapon was displayed; (ii) a 
weapon was generally pointed or waved in a threatening manner; or (iii) 
the presence of the weapon was otherwise made known to another person, 
in order to intimidate that person, regardless of whether the weapon 
was directly visible to that person. Although the dangerous weapon does 
not have to be directly visible, the weapon must be present.''; and in 
subdivision (I) by adding at the end the following:
    ``Pointing a firearm at a specific individual, or group of 
individuals, to make an explicit or implicit threat, or as a means of 
forcing compliance, constitutes `otherwise used'.''.]
    [Option 2B (Minority View): The Commentary to Sec.  1B1.1 captioned 
``Application Notes'' is amended in subdivision (I) by adding at the 
end the following:
    ``Use of a dangerous weapon (including a firearm) to injure or 
attempt to injure a victim would constitute `otherwise used'. For 
example, using a firearm or a bat to hit a victim would constitute 
`otherwise used' but pointing a firearm at a specific individual would 
not constitute `otherwise used'.''.]
    Issue for Comment: The proposed amendment provides an option for 
consolidating the enhancements for otherwise used and brandishing with 
respect to a case involving a firearm. The Commission requests comment 
regarding whether, if it adopts this approach in Sec. Sec.  2B3.1 
(Robbery) and 2B3.2 (Extortion by Force or Threat of Injury or Serious 
Damage), it should also adopt this approach in Sec. Sec.  2A2.2 
(Aggravated Assault) and 2E2.1 (Making or Financing an Extortionate 
Extension of Credit; Collecting an Extension of Credit by Extortionate 
Means).

3. Steroids

    Synopsis of Proposed Amendment: This proposed amendment would 
repromulgate the proposed temporary, emergency amendment set forth in 
Part A of this Notice as a permanent amendment. The proposed amendment 
implements the directive in the United States Parole Commission 
Extension and Sentencing Commission Authority Act of 2005, Pub. L. 109-
76, which requires the Commission, under emergency amendment authority, 
to implement section 3 of the Anabolic Steroid Control Act of 2004, 
Pub. L. 108-358 (the ``ASC Act''). The ASC Act directs the Commission 
to ``review the Federal sentencing guidelines with respect to offenses 
involving anabolic steroids'' and ``consider amending the * * * 
guidelines to provide for increased penalties with respect to offenses 
involving anabolic steroids in a manner that reflects the seriousness 
of such offenses and the need to deter anabolic steroid trafficking and 
use * * *.''
    The proposed amendment implements the directives by increasing the 
penalties for offenses involving anabolic steroids. It does so by 
changing the manner in which anabolic steroids are treated under Sec.  
2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking 
(Including Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy). Currently, one unit of an anabolic steroid ``means a 10 cc 
vial of an injectable steroid or fifty tablets.'' The proposed 
amendment presents two options for increasing penalties. Option One 
bases the offense level in an anabolic steroid offense on the 
``actual'' quantity of steroid involved in the offense and provides 
that one unit of an anabolic steroid means [25][50][100] mg of an 
anabolic steroid, regardless of the form involved in the offense (e.g., 
patch, cream, tablet, liquid). At 25 mg, sentencing penalties would be 
increased approximately 6-8 levels above current offense levels, and 
would closely approximate a 1:1 ratio with other Schedule III 
substances. At 50 mg, sentencing penalties would be increased 
approximately 4-6 levels above current offense levels, and at 100 mg, 
sentencing penalties would be increased approximately 2-4 levels above 
current offense levels. This option also includes a rebuttable 
presumption that the label, shipping manifest, or other similar 
documentation accurately reflects the purity of the steroid. Option Two 
eliminates the sentencing distinction between anabolic steroids and 
other Schedule III substances. Accordingly, if an anabolic steroid is 
in a pill, tablet, capsule, or liquid form, the court would sentence as 
it would in any other case involving a Schedule III substance. For 
anabolic steroids in other forms, the proposed amendment instructs the 
court that [1 unit means 25 mg and that] the court may determine the 
base offense level using a reasonable estimate of the quantity of 
anabolic steroid involved in the offense.
    The proposed amendment also provide new enhancements designed to 
capture aggravating harms involved in anabolic steroid cases. First, 
the proposed amendment amends Sec.  2D1.1 to provide an increase of two 
levels if the offense involved the distribution of a masking agent. A 
masking agent is a product added to, or taken with, an anabolic steroid 
to prevent the detection of the anabolic steroid in an individual's 
body. Second, the proposed amendment amends Sec.  2D1.1 to provide an 
increase of two levels if the defendant distributed an anabolic steroid 
to a professional, college, or high school athlete. Third, the proposed 
amendment presents two options for increasing penalties for coaches who 
distribute anabolic steroids to their athletes. Option One provides, as 
an alternative to the proposed enhancement for distribution to an 
athlete, a two-level increase in Sec.  2D1.1 if the defendant used the 
defendant's position as a coach of athletic activity to influence an 
athlete to use an anabolic steroid. Option Two amends Application Note 
2 of Sec.  3B1.3 (Abuse of Position of Trust or Use of Special Skill) 
to include a coach who uses his or her position to influence an athlete 
to use an anabolic steroid in the list of special circumstances to 
which

[[Page 4793]]

the two level adjustment in Sec.  3B1.3 shall apply.
    Three issues for comment follow the proposed amendment. The first 
pertains to whether the Commission, when it repromulgates the proposed 
amendment as a permanent amendment, should expand the scope of the 
enhancements to cover all controlled substances, not just anabolic 
steroids. The second issue pertains to whether the penalties for 
steroid offenses should be based on quantities typical of offenses 
involving mid- and high-level dealers. The third issue pertains to 
whether the Commission should amend the guidelines to address offenses 
involving human growth hormone (HGH) and if so, how.
    Proposed Amendment: Section 2D1.1 is amended by redesignating 
subsections (b)(6) and (b)(7) as subsections (b)(8) and (b)(9), 
respectively; and by inserting the following after subsection (b)(5):
    ``(6) If the offense involved the distribution of (A) an anabolic 
steroid; and (B) a masking agent, increase by 2 levels.
    (7) If the defendant distributed an anabolic steroid to a 
professional, college, or high school athlete[; Option 1(for coach): or 
(B) the defendant used the defendant's position as a coach of an 
athletic activity to influence a professional, college, or high school 
athlete to use an anabolic steroid], increase by 2 levels.''.
    [Option 1 (for steroids): Section 2D1.1(c) is amended in the 
``*Notes to the Drug Quantity Table'' by striking subdivision (G) and 
inserting the following:
    ``(G) In the case of anabolic steroids, one ``unit'' means 
[25][50][100] mg of an anabolic steroid, regardless of the form (e.g., 
patch, topical cream, tablet, liquid). [There shall be a rebuttable 
presumption that the label, shipping manifest, or other similar 
documentation describing the type and purity of the anabolic steroid 
accurately reflects the purity of that steroid.]''.]
    [Option 2 (for steroids): Section 2D1.1(c) is amended in the 
``*Notes to the Drug Quantity Table'' in subdivision (F) by striking 
``(except anabolic steroids)''; and by adding at the end the following:
    ``For an anabolic steroid that is not in a pill, capsule, tablet, 
or liquid form (e.g. patch, topical cream, aerosol), [(A) one ``unit'' 
means [25] mg; and (B)] the court may determine the base offense level 
using a reasonable estimate of the quantity of anabolic steroid 
involved in the offense.''.
    Section 2D1.1(c) is amended in the ``*Notes to the Drug Quantity 
Table'' by striking subdivision (G).]
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended by striking ``(b)(6)'' and inserting ``(b)(8)'' each place it 
appears; and by striking ``(b)(7)'' and inserting ``(b)(9)'' each place 
it appears.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``24. Application of Subsection (b)(6).--For purposes of subsection 
(b)(6), ``masking agent'' means a product added to, or taken with, an 
anabolic steroid that prevents the detection of the anabolic steroid in 
an individual's body.
    25. Application of Subsection (b)(7).--For purposes of subsection 
(b)(7):
    `Athlete' means an individual who participates in an athletic 
activity conducted by (A) an intercollegiate athletic association or 
interscholastic athletic association; (B) a professional athletic 
association; or (C) an amateur athletic organization.
    `Athletic activity' means an activity that (A) has officially 
designated coaches; (B) conducts regularly scheduled practices or 
workouts that are supervised by coaches; and (C) has established 
schedules for competitive events or exhibitions.
    `College or high school athlete' means an athlete who is a student 
at an institution of higher learning (as defined in section 101 of the 
Higher Education Act of 1965 (20 U.S.C. 1001) or at a secondary school 
(as defined in section 9101 of the Elementary and Secondary Education 
Act of 1965 (20 U.S.C. 7801).
    `Professional athlete' means an individual who competes in a major 
professional league.''.
    The Commentary to Sec.  2D1.1 captioned ``Background'' is amended 
in the ninth paragraph by striking ``(b)(6)(A)'' and inserting 
``(b)(8)(A)''; and in the last paragraph by striking ``(b)(6)(B) and 
(C)'' and inserting ``(b)(8)(B) and (C)''.
    [Option 2 (for coaches): The Commentary to Sec.  3B1.3 captioned 
``Application Notes'' is amended in Note 2 in subdivision (A) by 
inserting ``Postal Service Employee.--'' before ``An employee''; in 
subdivision (B) by inserting ``Offenses Involving `Means of 
Identification'.--'' before ``A defendant''; and by adding at the end 
the following:
    ``(C) Coach of Athletic Activity.--A defendant who uses the 
defendant's position as a coach of an athletic activity to influence a 
professional, college, or high school athlete to use an anabolic 
steroid.
    For purposes of this guideline:
    (i) `Athlete' means an individual who participates in an athletic 
activity conducted by (I) an intercollegiate athletic association or 
interscholastic athletic association; (II) a professional athletic 
association; or (III) an amateur athletic organization.
    (ii) `Athletic activity' means an activity that (I) has officially 
designated coaches; (II) conducts regularly scheduled practices or 
workouts that are supervised by coaches; and (III) has established 
schedules for competitive events or exhibitions.
    (iii) `College, or high school athlete' means an athlete who is a 
student at an institution of higher learning (as defined in section 101 
of the Higher Education Act of 1965 (20 U.S.C. 1001) or at a secondary 
school (as defined in section 9101 of the Elementary and Secondary 
Education Act of 1965 (20 U.S.C. 7801).
    (iv) `Professional athlete' means an individual who competes in a 
major professional league.]''.
    Issues for Comment:
    (1) The Commission requests comment regarding whether, when the 
Commission re-promulgates the temporary emergency amendment as a 
permanent amendment, it should expand the proposed enhancements in 
Sec.  2D1.1(b)(6) (pertaining to masking agents) and in Sec.  
2D1.1(b)(7) (pertaining to distribution of a steroid to an athlete) to 
cover offenses involving any controlled substance. Specifically, the 
proposed amendment defines ``masking agent'' as ``a product added to, 
or taken with, an anabolic steroid to prevent the detection of the 
anabolic steroid in an individual's body.'' However, masking agents 
also can be taken to prevent the detection of other controlled 
substances. The Commission requests comment regarding whether it should 
expand the definition of masking agent, and thus application of the 
enhancement, in a manner that covers all controlled substances, not 
just anabolic steroids. Similarly, there are controlled substances 
other than anabolic steroids that enhance an individual's performance. 
The Commission requests comment regarding whether the proposed 
enhancement pertaining to distribution to an athlete should be expanded 
to cover offenses involving all types of controlled substances.
    (2) The Commission requests comment regarding whether penalties for 
steroid offenses should be based on quantities typical of offenses 
involving mid- and high-level dealers. For more serious drug types 
(e.g., heroin, cocaine, marihuana), the Drug Quantity Table in Sec.  
2D1.1(c) provides an offense level of 26 for quantities typical of mid-
level dealers and an offense level of 32 for

[[Page 4794]]

quantities typical of high-level dealers. These levels also correspond 
to the statutory mandatory minimum penalties for mid- and high-level 
dealers. Although there are no statutory mandatory minimum penalties 
establishing thresholds for steroid offenses, the Commission has been 
informed that a steroids dealer who provides the equivalent of one 
complete cycle to 10 customers is considered to be a mid-level dealer, 
and a dealer who provides the equivalent of one complete cycle to 30 
customers is considered to be a high-level dealer. Currently, offense 
levels in the Drug Quantity Table for anabolic steroids and other 
Schedule III substances begin at level 6 and are ``capped'' at level 
20. Should the Commission provide a penalty structure within this range 
that targets offenses involving mid- and high-level steroid dealers, 
and if so, what offense levels should correspond to a mid-level dealer 
and to a high-level dealer?
    (3) Application Note 4 of Sec.  2N2.1 (Violations of Statutes and 
Regulations Dealing With Any Food, Drug, Biological Product, Device, 
Cosmetic, or Agricultural Product) states that ``[t]he Commission has 
not promulgated a guideline for violations of 21 U.S.C. 333(e) 
(offenses involving human growth hormone).'' The Commission requests 
comment regarding whether it should specifically address offenses 
involving the distribution of human growth hormone (HGH), and if so, 
how.

4. Intellectual Property

    Synopsis of Proposed Amendment: This proposed amendment proposes to 
re-promulgate as a permanent amendment the temporary, emergency 
amendment that implemented the directive in section 105 of the Family 
Entertainment and Copyright Act of 2005, Pub. L. 109-9. The emergency 
amendment became effective on October 24, 2005.
    The directive instructs the Commission to ``review and, if 
appropriate, amend the Federal sentencing guidelines and policy 
statements applicable to persons convicted of intellectual property 
rights crimes * * *''
    ``In carrying out [the directive], the Commission shall--
    (1) take all appropriate measures to ensure that the Federal 
sentencing guidelines and policy statements * * * are sufficiently 
stringent to deter, and adequately reflect the nature of, intellectual 
property rights crimes;
    (2) determine whether to provide a sentencing enhancement for those 
convicted of the offenses [involving intellectual property rights], if 
the conduct involves the display, performance, publication, 
reproduction, or distribution of a copyrighted work before it has been 
authorized by the copyright owner, whether in the media format used by 
the infringing party or in any other media format;
    (3) determine whether the scope of `uploading' set forth in 
application note 3 of section 2B5.3 of the Federal sentencing 
guidelines is adequate to address the loss attributable to people who, 
without authorization, broadly distribute copyrighted works over the 
Internet; and
    (4) determine whether the sentencing guideline and policy 
statements applicable to the offenses [involving intellectual property 
rights] adequately reflect any harm to victims from copyright 
infringement if law enforcement authorities cannot determine how many 
times copyrighted material has been reproduced or distributed.''
Pre-Release Works
    The proposed amendment provides a separate two-level enhancement if 
the offense involved a pre-release work. The enhancement and the 
corresponding definition use language directly from 17 U.S.C. 506(a) 
(criminal infringement). The amendment adds language to Application 
Note 2 that explains that in cases involving pre-release works, the 
infringement amount should be determined by using the retail value of 
the infringed item, rather than any premium price attributed to the 
infringing item because of its pre-release status. The proposed 
amendment addresses concerns that distribution of an item before it is 
legally available to the consumer is more serious conduct than 
distribution of other infringing items and involves a harm not 
addressed by the current guideline.
Uploading
    The concern underlying the uploading directive pertains to offenses 
in which the copyrighted work is transferred through file sharing, 
particularly peer-to-peer models. The Department of Justice has 
explained that Application Note 3, which expands on the definition of 
``uploading'', may be read to exclude peer-to-peer activity from 
application of the current enhancement in Sec.  2B5.3(b)(2) for 
offenses that involve the manufacture, importation, or uploading of 
infringing items. In particular, the concern pertains to the third 
sentence, which reads, ``For example, this subsection applies in the 
case of illegally uploading copyrighted software to an Internet site, 
but it does not apply in the case of downloading or installing that 
software on a hard drive on the defendant's personal computer.'' The 
proposed amendment builds on the current definition of ``uploading'' to 
include making an infringing item available on the Internet by storing 
an infringing item as an openly shared file (i.e., a file that is 
stored on a peer-to-peer network). The proposed amendment also 
clarifies that uploading does not include merely downloading or 
installing infringing items on a hard drive of the defendant's computer 
unless the infringing item is an openly shared file. By clarifying the 
definition of uploading in this manner, Application Note 3, which is a 
restatement of the uploading definition, is no longer necessary and the 
proposed amendment deletes the application note from the guideline.
Indeterminate Number
    The proposed amendment addresses the final directive by amending 
Application Note 2, which sets forth the rules for determining the 
infringement amount. The proposed note provides that the court may make 
a reasonable estimate of the infringement amount using any relevant 
information including financial records in cases in which the court 
cannot determine the number of infringing items. The Commission's 
empirical analysis of cases sentenced under this guideline suggests 
that courts often determine the infringement amount in this manner. 
This proposed amendment simply codifies into the guideline the practice 
currently employed by the courts.
New Offense
    Finally, the proposed amendment provides a reference in Appendix A 
(Statutory Index) for the new offense at 18 U.S.C. 2319B. This offense 
is proposed to be referenced to Sec.  2B5.3.
    Proposed Amendment: Section 2B5.3(b) is amended by redesignating 
subsections (b)(2) through (b)(4) as subsections (b)(3) through (b)(5), 
respectively; and by inserting after subsection (b)(1) the following:
    ``(2) If the offense involved the display, performance, 
publication, reproduction, or distribution of a work being prepared for 
commercial distribution, increase by 2 levels.''.
    The Commentary to Sec.  2B5.3 captioned ``Application Notes'' is 
amended in Note 1 by striking the last paragraph and inserting the 
following:
    ```Uploading' means making an infringing item available on the 
Internet or a similar electronic bulletin board with the intent to 
enable other persons to (A) download or otherwise copy the infringing 
item; or (B) have access to the

[[Page 4795]]

infringing item, including by storing the infringing item as an openly 
shared file. `Uploading' does not include merely downloading or 
installing an infringing item on a hard drive on a defendant's personal 
computer unless the infringing item is an openly shared file.
    `Work being prepared for commercial distribution' has the meaning 
given that term in 17 U.S.C. 506(a)(3).''.
    The Commentary to Sec.  2B5.3 captioned ``Application Notes'' is 
amended in Note 2 in subdivision (A) by inserting after subdivision (v) 
the following:
    ``(vi) The offense involves the display, performance, publication, 
reproduction, or distribution of a work being prepared for commercial 
distribution. In a case involving such an offense, the `retail value of 
the infringed item' is the value of that item upon its initial 
commercial distribution.''; and by inserting after subdivision (D) the 
following:
    ``(E) Indeterminate Number of Infringing Items.--In a case in which 
the court cannot determine the number of infringing items, the court 
need only make a reasonable estimate of the infringement amount using 
any relevant information, including financial records.''.
    The Commentary to Sec.  2B5.3 captioned ``Application Notes'' is 
amended by striking Note 3; and by redesignating Notes 4 and 5 as Notes 
3 and 4, respectively.
    Appendix A (Statutory Index) is amended by inserting after the line 
reference to ``18 U.S.C. 2319A'' the following:
    ``18 U.S.C. 2319B2B5.3''.

5. Terrorism/Obstruction of Justice

    Synopsis of Proposed Amendment: This proposed amendment re-
promulgates as a permanent amendment the temporary, emergency amendment 
that responded to section 6703 of the Intelligence Reform and Terrorism 
Prevention Act of 2004 (the ``Act''), Pub. L. 108-458. That amendment 
became effective on October 24, 2005.
    The Act directed the Commission ``to provide for an increased 
offense level for an offense under sections 1001(a) and 1505 of title 
18, United States Code, if the offense involves international or 
domestic terrorism, as defined in section 2331 of such title.'' The Act 
also increased the penalties for offenses under 18 U.S.C. 1001 (false 
statements) and 1505 (obstruction of proceedings before departments, 
agencies, and committees of the United States) from not more than 5 
years to not more than 8 years if the offense involves international or 
domestic terrorism. The Commission was subsequently directed by the 
United States Parole Commission Extension and Sentencing Commission 
Authority Act of 2005 Pub. L. 109-76 to promulgate an amendment under 
emergency amendment authority not later than November 27, 2005. See 
Supplement to Appendix C (Amendment 676).
    The proposed amendment provides a 12-level enhancement in Sec.  
2J1.2 (Obstruction of Justice) if the defendant is convicted under 18 
U.S.C. 1001 or 1505 and the enhanced statutory sentencing provision 
pertaining to international or domestic terrorism applies. The proposed 
amendment also provides an application note that instructs the court 
not to apply the new enhancement if an adjustment under Sec.  3A1.4 
(Terrorism) applies.
    Proposed Amendment: Section 2J1.2(b) is amended by striking 
subdivision (1) and inserting the following:
    ``(1) (Apply the greater):
    (A) If the offense involved causing or threatening to cause 
physical injury to a person, or property damage, in order to obstruct 
the administration of justice, increase by 8 levels.
    (B) If (i) defendant was convicted under 18 U.S.C. 1001 or 1505; 
and (ii) the statutory maximum term of imprisonment relating to 
international terrorism or domestic terrorism is applicable, increase 
by 12 levels.''.
    The Commentary to Sec.  2J1.2 captioned ``Statutory Provisions'' is 
amended by striking ``18 U.S.C. 1503'' and inserting the following:
    ``18 U.S.C. 1001 when the statutory maximum term of imprisonment 
relating to international terrorism or domestic terrorism is 
applicable, 1503''.
    The Commentary to Sec.  2J1.2 captioned ``Application Notes'' is 
amended in Note 1 by inserting after ``Definitions.--For purposes of 
this guideline:'' the following:
    ``'Domestic terrorism'' has the meaning given that term in 18 
U.S.C. 2331(5).
    International terrorism'' has the meaning given that term in 18 
U.S.C. 2331(1).''.
    The Commentary to Sec.  2J1.2 captioned ``Application Notes'' is 
amended by striking Note 2 and inserting the following:
    ``2. Chapter Three Adjustments.--
    (A) Inapplicability of Chapter Three, Part C.--For offenses covered 
under this section, Chapter Three, Part C (Obstruction) does not apply, 
unless the defendant obstructed the investigation, prosecution, or 
sentencing of the obstruction of justice count.
    (B) Interaction with Terrorism Adjustment.--If Sec.  3A1.4 
(Terrorism) applies, do not apply subsection (b)(1)(B).''.
    Appendix A (Statutory Index) is amended in the line referenced to 
``18 U.S.C. 1001'' by inserting ``, 2J1.2 when the statutory maximum 
term of imprisonment relating to international terrorism or domestic 
terrorism is applicable'' after 2B1.1''.

6. Transportation

    Synopsis of Proposed Amendment: This proposed amendment implements 
a number of provisions of the Safe, Accountable, Flexible, Efficient 
Transportation Act: A Legacy for Users, Pub. L. 109-59 (hereinafter the 
``Transportation Act''). Specifically:
    (A) Section 3042 of the Transportation Act amends the definition of 
``mass transportation'' in 18 U.S.C. 1993 so that it now refers to 
``public transportation'' and expands the definition to include the 
control of mass transportation vehicles.
    The proposed amendment responds to section 3042 by revising 
Sec. Sec.  [2A1.4 (Involuntary Manslaughter)], 2A5.2 (Interference with 
Flight Crew Member of Flight Attendant; Interference with Dispatch, 
Operation, or Maintenance of Mass Transportation Vehicle or Ferry) and 
2K1.4 (Arson; Property Damage by Use of Explosives) so that the 
guideline term definition of ``mass transportation'' mirrors the 
statutory change to ``public transportation''. It also proposes to 
amend the heading of Chapter Two, Part A, Subpart 5 to reflect the 
revised terminology and proposes to amend the heading of Sec.  2A5.2 to 
include the control of mass transportation vehicle, in conformance with 
the amendments to 18 U.S.C. 1993 made by section 3042.
    (B) Section 4102 of the Transportation Act amends 49 U.S.C. 31310 
to provide increased penalties for out-of-service violations and false 
records related to commercial vehicle safety. The Transportation Act 
creates a new criminal penalty of up to one year imprisonment for 
employers who knowingly and willfully allow or require employees to 
violate ``out-of-service'' orders (``OOS orders''). The Secretary of 
Transportation's statutory authority for issuing OOS orders is 
predicated upon a finding that a regulatory violation ``poses an 
imminent hazard to safety.'' The term ``imminent hazard'' is defined as 
``any condition'likely to result in serious injury or death. . . .'' 
Previously, the statute imposed only a maximum fine of $10,000 for 
knowingly requiring or allowing an employee to operate an out of 
service commercial motor vehicle.
    According to the Senate's report language on this provision, it is

[[Page 4796]]

increasingly more difficult for enforcement officers to monitor out of 
service vehicles, particularly when the orders cover entire fleets of 
commercial motor vehicles. As such, ``Many OOS orders are violated.'' 
Congress intends the new penalty provisions--including increased fines 
for violating OOS orders--to deter such violations in the future.
    In response, the proposed amendment references the new criminal 
provision at 49 U.S.C. 31310 to a new guideline already proposed for 
Class A misdemeanors. (See proposed amendment relating to the 
implementation of miscellaneous enacted legislation.)
    (C) Section 4210 of the Transportation Act creates a new section at 
49 U.S.C. 14915 covering penalties for failure to give up possession of 
household goods. Failure to give up household goods is defined as ``the 
knowing and willful failure, in violation of a contract, to deliver to, 
or unload at, the destination of a shipment of household goods that is 
subject to jurisdiction under subchapter I or III of chapter 135 of 
this title, for which charges have been estimated by the motor carrier 
providing transportation of such goods, and for which the shipper has 
tendered a payment described in clause (i), (ii), or (iii) of section 
13707(b)(3)(A).''. The criminal penalty for failure to give up 
possession of household goods is a term of imprisonment of up to two 
years.
    The proposed amendment refers this new offense to Sec.  2B1.1, the 
guideline covering fraud, theft, and property destruction.
    (D) The proposed amendment provides an issue for comment regarding 
whether the Commission should amend the guidelines to implement section 
7121 of the Transportation Act, which pertains to the transportation of 
hazardous waste, and if so how.

Proposed Amendment

(A) Implementation of Section 3042 of Transportation Act
    The Commentary to Sec.  2A1.4 captioned ``Application Note'' is 
amended in Note 1 in the paragraph that begins ``'Means of 
transportation''' by striking ``mass transportation'' and inserting 
``public transportation''; and by striking ``'Mass transportation''' 
and inserting ``'Public transportation'''.
    Chapter 2, Part A, Subpart 5, is amended in the heading by striking 
``MASS'' and inserting ``PUBLIC''.
    Section 2A5.2 is amended in the heading by inserting ``Control,'' 
after ``Operation,''; and by striking ``Mass'' and inserting 
``Public''.
    Section 2A5.2(a) is amended in subdivisions (1)(B) and (2)(B) by 
striking ``mass'' and inserting ``public'' each place it appears.
    The Commentary to Sec.  2A5.2 captioned ``Application Note'' is 
amended in Note 1 in the last paragraph by striking ``'Mass'' and 
inserting ``'Public''.
    Section 2K1.4(a) is amended by striking ``mass'' and inserting 
``public'' each place it appears.
    The Commentary to Sec.  2K1.4 captioned ``Application Note'' is 
amended in Note 1 by striking ``Mass'' and inserting ``Public''.
(B) Implementation of Section 4102 of Transportation Act

    [Please Note:
    This amendment proposes to add a statutory reference to the 
guideline proposed for Class A Misdemeanors in Proposed Amendment 9 
(Miscellaneous Laws), Part E.]


    Chapter Two, Part X, Subpart 5, as amended by Proposed Amendment 9, 
Part E, is further amended in the Commentary to Sec.  2X5.2 captioned 
``Statutory Provisions'' by inserting ``; 49 U.S.C. 31310(i)(2)(D)'' 
after ``14133''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to ``18 U.S.C. 30170'' the following:
    ``49 U.S.C. 31310(i)(2)(D) 2X5.2''.
    (C) Implementation of Section 4210 of the Transportation Act
    The Commentary to Sec.  2B1.1 captioned ``Statutory Provisions'' is 
amended by inserting ``14915,'' before ``30170,''.
    Appendix A (Statutory Provisions) is amended by inserting after the 
line referenced to 49 U.S.C. 14912 the following:
    ``49 U.S.C. 149152 B1.1''.
    Issue for Comment: The Commission requests comment on how it should 
implement provisions of the Safe, Accountable, Flexible, Efficient 
Transportation Act: A Legacy for Users, Pub. L. 109-59 (hereinafter the 
``Transportation Act'') relating to the transportation of hazardous 
materials. Specifically, the Commission requests comment regarding 
whether, and if so how, the Commission should amend the guidelines to 
implement section 7121 of the Transportation Act.
    Section 7121 of the Transportation Act amends 49 U.S.C. 5124, which 
criminalizes knowing or willful violations of chapter 51 of title 49, 
United States Code, regarding the transportation of hazardous 
materials, in two ways. First, it defines ``knowing,'' ``willful,'' and 
``reckless'' violations of the Hazardous Materials Act. Second, it 
provides a new ten year maximum for aggravated felonies in which a 
defendant knowingly or willfully violated the hazardous materials act 
(or its accompanying regulations), a release of hazardous materials 
occurs, and such a release results in death or serious bodily injury. 
Section 7127 of the Transportation Act added section 5124 to the 
provisions set forth in 18 U.S.C. 3663 that allow the Department of 
Justice to seek restitution.
    Offenses under 49 U.S.C. 5124 currently are referenced to Sec.  
2Q1.2 (Mishandling of Hazardous or Toxic Substances or Pesticides; 
Recordkeeping, Tampering, and Falsification; Unlawfully Transporting 
Hazardous Materials in Commerce). The Commission amended Sec.  2Q1.2 in 
2004 to provide for a 2-level increase for offenses involving the 
unlawful transportation of hazardous materials. This enhancement is to 
apply whenever a defendant is convicted under 49 U.S.C. 5124 or 49 
U.S.C. 46312 and is intended to capture the increased risk of harm 
associated with these types of offenses. Is this enhancement adequate 
to account for the seriousness of conduct involving the unlawful 
transportation of hazardous materials and/or the increased risk of harm 
associated with these offenses, particularly for offenses involving the 
knowing, willful, and/or reckless transportation of hazardous 
materials?
    7. Implementation of the Intelligence Reform and Terrorism 
Prevention Act of 2004
    Synopsis of Proposed Amendment: This proposed amendment implements 
a number of provisions of the Intelligence Reform and Terrorism 
Prevention Act of 2004, Pub. L. 108-458. Specifically:
    (A) Section 5401 of the Act adds a new subsection (a)(4) to 8 
U.S.C. 1324 that increases the otherwise applicable penalties by up to 
ten years for bringing aliens into the United States if (A) the conduct 
is part of an ongoing commercial organization or enterprise; (B) aliens 
were transported in groups of 10 or more; and (C)(1) aliens were 
transported in a manner that endangered their lives; or (2) the aliens 
presented a life-threatening health risk to people in the United 
States.
    Criminal penalties for violations of 8 U.S.C. 1324 include fines 
and terms of imprisonment ranging from 1 year for knowingly bringing in 
an alien who does not have permission to enter the country, 8 U.S.C. 
1324(a)(2)(A), up to life if a death occurs during a violation, 8 
U.S.C. 1324(a)(1)(B)(iv). Offenses under 18 U.S.C. 1324 are referenced 
to

[[Page 4797]]

Sec.  2L1.1 (Smuggling, Transporting, or Harboring an Unlawful Alien).
    In response to the new offense, the proposed amendment provides 
three options. Option One amends Sec.  2L1.1 by adding a specific 
offense characteristic to account for offenses of conviction under 8 
U.S.C. 1324(a)(4). Option Two amends Sec.  2L1.1 by adding a specific 
offense characteristic to account for offenses that involve an ongoing 
commercial organization or enterprise. Option Three provides an upward 
departure for such conduct.
    (B) Section 6702 of the Act creates a new offense at 18 U.S.C. 1038 
(False Information and Hoaxes), which provides as follows:
    (1) In General--Whoever engages in any conduct with intent to 
convey false or misleading information under circumstances where such 
information may reasonably be believed and where such information may 
indicate that an activity has taken, is taking, or will take place that 
would constitute a violation of chapter 2, 10, 11B, 39, 40, 44, 111, or 
113B of this title, section 236 of the Atomic Energy Act of 1954 (42 
U.S.C. 2284) or section 46502, the second sentence of section 46504, 
section 46505(b)(3) or (c), section 46506 if homicide or attempted 
homicide is involved, or section 60123(b) of title 49, shall--
    (A) be fined under this title or imprisoned not more than 5 years, 
or both;
    (B) if serious bodily injury results, be fined under this title or 
imprisoned not more than 20 years, or both; and
    (C) if death results, be fined under this title or imprisoned for 
any number of years up to life or both.
    (2) Armed Forces--Any person who makes a false statement, with 
intent to convey false or misleading information, about the death, 
injury, capture, or disappearance of a member of the Armed Forces of 
the United States during a war or armed conflict in which the United 
States is engaged--
    (A) shall be fined under this title or imprisoned not more than 5 
years, or both;
    (B) if serious bodily injury results, shall be fined under this 
title or imprisoned not more than 20 years, or both; and
    (C) if death results, shall be fined under this title or imprisoned 
for any number of years or for life or both.
    The proposed amendment references the new offense to Sec.  2A6.1 
(Threatening or Harassing Communications) and adds a cross reference to 
Sec.  2M6.1 (Unlawful Production, Development, Acquisition, 
Stockpiling, Alteration, Use, Transfer, or Possession of Nuclear 
Material, Weapons, or Facilities, Biological Agents, Toxins, or 
Delivery Systems, Chemical Weapons, or Other Weapons of Mass 
Destruction; Attempt or Conspiracy) if the conduct supports a threat to 
use a weapon of mass destruction.
    (C) Section 6803 creates a new offense at 18 U.S.C. 832, relating 
to participation in nuclear, and weapons of mass destruction, threats 
to the United States. The new offense reads in part as follows:
    (a) Whoever, within the United States or subject to the 
jurisdiction of the United States, willfully participates in or 
knowingly provides material support or resources (as defined in section 
2339A) to a nuclear weapons program or other weapons of mass 
destruction program of a foreign terrorist power, or attempts or 
conspires to do so, shall be imprisoned for not more than 20 years.
    (b) There is extraterritorial Federal jurisdiction over an offense 
under this section.
    (c) Whoever without lawful authority develops, possesses, or 
attempts or conspires to develop or possess a radiological weapon, or 
threatens to use or uses a radiological weapon against any person 
within the United States, or a national of the United States while such 
national is outside of the United States or against any property that 
is owned, leased, funded, or used by the United States, whether that 
property is within or outside of the United States, shall be imprisoned 
for any term of years or for life.
    Section 6803 also adds this new offense to the list of predicate 
offenses at 18 U.S.C. 2332b(g)(5)(B)(i) and amends Sec. Sec.  57(b) and 
92 of the Atomic Energy Act of 1954 (42 U.S.C. 2077(b)) to cover the 
participation of an individual in the development of special nuclear 
material.
    The proposed amendment references 18 U.S.C. 832 to Sec.  2M6.1.
    (D) Section 6903 of the Act creates a new offense at 18 U.S.C. 
2332g (Missile Systems Designed to Destroy Aircraft) prohibiting the 
production or transfer of missile systems designed to destroy aircraft. 
Specifically, section 2332g reads in part:
    (a) Unlawful Conduct
    (1) In general. Except as provided in paragraph (3), it shall be 
unlawful for any person to knowingly produce, construct, otherwise 
acquire, transfer directly or indirectly, receive, possess, import, 
export, or use or possess and threaten to use--
    (A) an explosive or incendiary rocket or missile that is guided by 
any system designed to enable the rocket or missile to--
    (i) seek or proceed toward energy radiated or reflected from an 
aircraft or toward an image locating an aircraft; or
    (ii) otherwise direct or guide the rocket or missile an aircraft;
    (B) any device designed or intended to launch or guide a rocket or 
missile described in subparagraph (A); or
    (C) any part or combination of parts designed or redesigned for use 
in assembling or fabricating a rocket, missile, or device described in 
subparagraph (A) or (B).
    The new offense conduct provides for different criminal penalties. 
First, any individual who ``violates, attempts, or conspires to 
violate, subsection (a),'' the criminal penalties range from a fine of 
no more than two million dollars along with a statutory minimum term of 
imprisonment of 25 years to life. See 18 U.S.C. 2332g(c)(1). Second, 
any person who in the course of a violation of subsection (a) who 
``uses, attempts or conspires to use, or possesses or threatens to 
use,'' any item(s) described in subsection (a) will be fined no more 
than two million dollars in addition to receiving a statutory minimum 
sentence of 30 years to life. See 18 U.S.C. 2332g(c)(2). Finally, if 
the death of another person results from a violation of subsection (a), 
the offender will be fined no more than two million dollars and will be 
given a sentence of life imprisonment. See 18 U.S.C. 2332g(c)(3).
    The proposed amendment references 18 U.S.C. 2332g to Sec.  2K2.1 
(Unlawful Receipt, Possession, or Transportation of Firearms or 
Ammunition; Prohibited Transactions Involving Firearms or Ammunition) 
because the types of weapon described in the offense would seem to be 
covered as destructive devices under 26 U.S.C. 5845(a).
    (E) Section 6905 of the Act creates a new offense at 18 U.S.C. 
2332h prohibiting the production, transfer, receipt, possession, or 
threat to use, any radiological dispersal device. Section 2332h reads 
in part as follows:
    (a) Unlawful Conduct
    (1) In general. Except as provided in paragraph (2), it shall be 
unlawful for any person to knowingly produce, construct, otherwise 
acquire, transfer directly or indirectly, receive, possess, import, 
export, or use, or possess and threaten to use--
    (A) any weapon that is designed or intended to release radiation or 
radioactivity at a level dangerous to human life; or
    (B) any device or other object that is capable of and designed or 
intended to endanger human life through the release of radiation or 
radioactivity.

[[Page 4798]]

    The new offense conduct provides for different criminal penalties. 
First, any individual who ``violates, attempts, or conspires to 
violate, subsection (a),'' the criminal penalties range from a fine of 
no more than two million dollars along with a statutory minimum term of 
imprisonment of 25 years to life. See 18 U.S.C. 2332h(c)(1). Second, 
any person who in the course of a violation of subsection (a) who 
``uses, attempts or conspires to use, or possesses or threatens to 
use,'' any item(s) described in subsection (a) will be fined no more 
than two million dollars in addition to receiving a statutory minimum 
sentence of 30 years to life. See 18 U.S.C. 2332h(c)(2). Finally, if 
the death of another person results from a violation of subsection (a), 
the offender will be fined no more than two million dollars and will be 
given a sentence of life imprisonment. See 18 U.S.C. 2332h(c)(3).
    The proposed amendment references 18 U.S.C. 2332h to Sec.  2M6.1 
because of the nature of the offense. Section 2M6.1 covers conduct 
dealing with the production of certain types of nuclear, biological or 
chemical weapons or other weapons of mass destruction, including 
weapons of mass destruction that, as defined in 18 U.S.C. 2332a, are 
designed to release radiation or radioactivity at levels dangerous to 
human life.
    (F) Section 6906 of the Act creates a new offense prohibiting the 
production, acquisition, transfer, or possession of, or the threat to 
use, the variola virus. Specifically, 18 U.S.C. 175c (Variola Virus), 
reads, in part:
    (a) Unlawful Conduct
    (1) In general. Except as provided in paragraph (2), it shall be 
unlawful for any person to knowingly produce, engineer, synthesize, 
acquire, transfer directly or indirectly, receive, possess, import, 
export, or use, or possess and threaten to use, variola virus.
    The new offense conduct provides for different criminal penalties. 
First, any individual who ``violates, attempts, or conspires to 
violate, subsection (a),'' the criminal penalties range from a fine of 
no more than two million dollars along with a statutory minimum term of 
imprisonment of 25 years to life. See 18 U.S.C. 175c(c)(1). Second, any 
person who in the course of a violation of subsection (a) who ``uses, 
attempts or conspires to use, or possesses or threatens to use,'' any 
item(s) described in subsection (a) will be fined no more than two 
million dollars in addition to receiving a statutory minimum sentence 
of 30 years to life. See 18 U.S.C. 175c(c)(2). Finally, if the death of 
another person results from a violation of subsection (a), the offender 
will be fined no more than two million dollars and will be given a 
sentence of life imprisonment. See 18 U.S.C. 175c(c)(3).
    The proposed amendment references 18 U.S.C.175c to Sec.  2M6.1. The 
variola virus may be used as a biological agent or toxin and, 
therefore, should be covered under this guideline.
    (G) The proposed amendment provides an issue for comment regarding 
whether the Commission should define the term ``ongoing commercial 
organization'' and if so, how.

Proposed Amendment

    (A) Implementation of Section 5401 of the Act
    Section 2L1.1(b) is amended by adding at the end the following:
    ``(7) If [Option One: the defendant was convicted under 8 U.S.C. 
1324(a)(4)] [Option Two: the offense was part of an ongoing commercial 
organization or enterprise], increase by [2] levels.''.
    [Option Three:
    The Commentary to Sec.  2L1.1 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``7. Offenses Involving Ongoing Commercial Organizations or 
Enterprises.--If [the defendant was convicted under 8 U.S.C. 
1324(a)(4)] [the offense involved an ongoing commercial organization or 
enterprise], an upward departure may be warranted.]''.
(B) Implementation of Section 6702 of the Act
    Chapter Two, Part A, Subpart 6, is amended in the heading by 
inserting ``HOAXES,'' after ``COMMUNICATIONS,''.
    Section 2A6.1 is amended in the heading by adding at the end ``; 
Hoaxes''; by adding after subsection (b) the following:
    ``(c) Cross Reference
    (1) If the offense involved any conduct evidencing an intent to 
carry out a threat to use a weapon of mass destruction, as defined in 
18 U.S.C. 2332a(c)(2)(B), (C), and (D), apply Sec.  2M6.1 (Weapons of 
Mass Destruction), if the resulting offense level is greater than that 
determined under this guideline.''; and in the Commentary captioned 
``Statutory Provisions'' by inserting ``1038,'' after ``879,''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. 1037 the following:
    ``18 U.S.C. 1038 2A6.1''.
    (C) Implementation of Section 6803 of the Act
    The Commentary to Sec.  2M6.1 captioned ``Statutory Provisions'' is 
amended by inserting ``832,'' after ``831,''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. 831 the following:
    ``18 U.S.C. 832 2M6.1''.
(D) Implementation of Section 6903 of the Act
    The Commentary to Sec.  2K2.1 captioned ``Statutory Provisions'' is 
amended by inserting ``, 2332g'' after ``(k)-(o)''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. 2332f the following:
    ``18 U.S.C. 2332g 2K2.1''.
(E) Implementation of Section 6905 of the Act
    The Commentary to Sec.  2M6.1 captioned ``Statutory Provisions'' is 
amended by inserting ``, 2332h'' before ``; 42 U.S.C.''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. 2332f the following:
    ``18 U.S.C. 2332h 2M6.1''
(F) Implementation of Section 6906 of the Act
    The Commentary to Sec.  2M6.1 captioned ``Statutory Provisions'' is 
amended by inserting ``175c,'' after ``175b,''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. 175b the following:
    ``18 U.S.C. 175c 2M6.1''.
(G) Issue for Comment
    Issue for Comment: Section 5401 of the Intelligence Reform and 
Terrorism Prevention Act of 2004 added a new subsection (a)(4) to 8 
U.S.C. 1324 that increases the otherwise applicable penalties by up to 
10 years if, among other things, the conduct is part of an ongoing 
commercial organization. However, the Act did not provide a definition 
of the term ``ongoing commercial organization.'' If the Commission were 
to promulgate one of the proposed options that relies on this term as a 
basis for a sentencing increase (either by application of a specific 
offense characteristic or as an upward departure), should the 
Commission define the term ``ongoing commercial organization'' and if 
so, how?

8. False Domain Names and CAN-SPAM

    Synopsis of Proposed Amendment: This proposed amendment (A) 
implements the directive to the

[[Page 4799]]

Commission in section 204(b) of the Intellectual Property Protection 
and Courts Administration Act of 2004; and (B) implements the new 
offense in section 5(d) of the Controlling the Assault of Non-Solicited 
Pornography and Marketing Act of 2003 (``CAN-SPAM Act'') (15 U.S.C. 
7704(d)).
False Registration of Domain Name
    Section 204(b) of the Intellectual Property Protection and Courts 
Administration Act of 2004 directs the Commission--

to ensure that the applicable guideline range for a defendant 
convicted of any felony offense carried out online that may be 
facilitated through the use of a domain name registered with 
materially false contact information is sufficiently stringent to 
deter commission of such acts * * * In carrying out this 
[directive], the Sentencing Commission shall provide sentencing 
enhancements for anyone convicted of any felony offense furthered 
through knowingly providing or knowingly causing to be provided 
materially false contact information to a domain name registrar, 
domain name registry, or other domain name registration authority in 
registering, maintaining, or renewing a domain name use in 
connection with the offense.

    The proposed amendment implements this directive by providing a new 
guideline in Chapter Three (Adjustments) for cases in which a statutory 
enhancement under 18 U.S.C. 3559(f)(1) applies. Section 3559(f)(1), 
created by section 204(a) of the Intellectual Property Protection and 
Courts Administration Act of 2004, doubles the statutory maximum term 
of imprisonment, or increases the maximum sentence by seven years, 
whichever is less, if a defendant who is convicted of a felony offense 
knowingly falsely registered a domain name and used that domain name in 
the course of the offense. Basing the adjustment in the new guideline 
on application of the statutory enhancement in 18 U.S.C. 3559(f)(1) 
satisfies the directive.
CAN-SPAM
    Section 5(d)(1) of the CAN-SPAM Act prohibits the transmission of 
commercial electronic messages that contain ``sexually oriented 
material'' unless such messages include certain marks, notices, and 
information. Specifically, the statute requires that the sender of a 
commercial e-mail message containing sexually oriented material:
    (a) include in the subject heading of the e-mail the ``marks and 
notices'' prescribed by the Federal Trade Commission; and
    (b) include in the message initially viewable to the recipient (i) 
the FTC's marks and notices; (ii) clear and conspicuous identification 
that the message is an advertisement or solicitation; (iii) clear 
notice of the recipient's option to decline to receive further messages 
from the sender; and (iv) the sender's valid physical postal address.
    The sender of a commercial e-mail message that contains sexually 
oriented material within the meaning of the statute is exempted from 
these notice and labeling requirements only ``if the recipient has 
given prior affirmative consent to the receipt of the message.'' 
Otherwise, a sender who ``knowingly'' transmits sexually oriented 
commercial messages e-mail without including the required marks and 
information shall be fined under title 18, United States Code, or 
imprisoned not more than 5 years, or both.
    The proposed amendment references the new offense, found at 15 
U.S.C. 7704(d), to Sec.  2G2.5 (Recordkeeping Offenses Involving the 
Production of Sexually Explicit Materials). Currently, Sec.  2G2.5 
applies to violations of 18 U.S.C. 2257, which requires producers of 
sexually explicit materials to maintain detailed records regarding 
their production activities and to make such records available for 
inspection by the Attorney General in accordance with applicable 
regulations. Although offenses under 15 U.S.C. 7704(d) do not involve 
the recording and reporting functions at issue in cases currently 
sentenced under Sec.  2G2.5, section 7704(d) offenses are essentially 
regulatory in nature and in this manner are similar to other offenses 
sentenced under Sec.  2G2.5. In addition to the statutory reference 
changes, the proposed amendment also expands the heading of Sec.  2G2.5 
specifically to cover offenses under 15 U.S.C. 7704(d).
    Proposed Amendment:
    (A) False Registration of Domain Name
    Proposed Amendment: Chapter Three, Part C is amended in the heading 
by adding at the end ``AND RELATED ADJUSTMENTS''.
    Chapter Three, Part C is amended by adding at the end the 
following:
    ``Sec.  3C1.3. False Registration of Domain Name
    If a statutory enhancement under 18 U.S.C. 3559(f)(1) applies, 
increase by [1][2][3][4] levels.
Commentary
    Background: This adjustment implements the directive to the 
Commission in section 204(b) of Pub. L. 108-482.''.
(B) CAN-SPAM
    Proposed Amendment: Section 2G2.5 is amended in the heading by 
adding at the end ``; Failure to Provide Required Marks in Commercial 
Electronic Email''.
    The Commentary to Sec.  2G2.5 captioned ``Statutory Provision'' is 
amended by striking ``Provision'' and inserting ``Provisions''; and by 
inserting ``15 U.S.C. 7704(d);'' after the colon.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 15 U.S.C. 6821 the following:
    ``15 U.S.C. 7704(d)2G2.5''.

9. Miscellaneous Laws

    Synopsis of Proposed Amendment: This proposed amendments implements 
miscellaneous enacted laws as follows:
    (A) The Veterans' Memorial Preservation and Recognition Act of 
2003, section 2, created a new offense at 18 U.S.C. 1369 that prohibits 
the destruction of Veterans' Memorials, with a ten-year statutory 
maximum. Previously, in response to the Veteran's Cemetery Protection 
Act of 1997, the Commission added a two-level enhancement at Sec.  
2B1.1(b)(6) for vandalizing a National Cemetery.
    The proposed amendment refers the new offense to both Sec. Sec.  
2B1.1 (Theft, Property Destruction, and Fraud) and 2B1.5 (Theft of, 
Damage to, or Destruction of, Cultural Heritage Resources). Reference 
to both guidelines mirrors the treatment of other offenses involving 
property damage to veterans' memorials. The proposed amendment also 
provides an increase of [2][4][6] levels in Sec. Sec.  2B1.1 and 2B1.5 
if the offense involved a veterans' memorial.
    (B) The Plant Protection Act of 2002 increased penalties under 7 
U.S.C. 7734, for knowingly importing or exporting plant, plant 
products, biological control organisms, and like products for 
distribution or sale. The statutory maximum for the first offense is 
five years, and for subsequent offenses, ten years.
    Appendix A (Statutory Index) currently references 7 U.S.C. 7734 to 
Sec.  2N2.1 (Violations of Statutes and Regulations Dealing With Any 
Food, Drug, Biological Product, Device, Cosmetic, or Agricultural 
Product), which has a base offense level of 6. The proposed amendment 
provides two options in response to the increased penalties. Option One 
increases the base offense level in consideration of the increased 
statutory penalties. Option Two provides an upward departure provision 
within the guideline. This option recommends an upward departure 
because of the expected

[[Page 4800]]

infrequency of plant protection offenses and because it provides the 
court with a viable tool to account for the harm involved during the 
commission of these offenses on a case-by-case basis.
    (C) The Clean Diamond Trade Act of 2003 created a new offense at 19 
U.S.C. 3901, related to the import and export of rough diamonds or any 
transaction by a United States citizen anywhere, or any transaction 
that occurs in whole or in part within the United States. The new 
offense prohibits an import or export of rough diamonds that evades or 
avoids, or has the purpose of evading or avoiding, or attempts to 
violate, any of the prohibitions set forth in the Act. The statutory 
maximum is ten years.
    This offense involves importing ``conflict'' diamonds into the 
United States for profits used towards the overthrow or subverting of 
legitimate governments in Sierra Leone, Angola, Liberia, and the 
Democratic Republic of Congo. The diamonds, referred to as ``blood 
diamonds'' or ``conflict diamonds,'' are imported or exported without 
being controlled by a process known as the Kimberley Process 
Certification Scheme, which legitimizes the quality and original source 
of the diamond. The violation occurs when the diamonds are imported/
exported without first being certified through this process or when a 
United States citizen enters into a transaction involving these 
diamonds without the proper certification. The profits from the sale of 
these rough diamonds are used to fund rebel and military activities in 
the countries mentioned earlier.
    The proposed amendment references the new offense to Sec.  2T3.1 
(Evading Import Duties or Restrictions (Smuggling); Receiving or 
Trafficking in Smuggled Property). The proposed amendment also revises 
introductory commentary more specifically to indicate that uncertified 
diamonds are contraband covered by Sec.  2T3.1 even if other types of 
contraband are covered by other, more specific guidelines.
    (D) The Unborn Victims of Violence Act of 2004 (``Laci & Conner'' 
Law) created a new offense at 18 U.S.C. 1841 for causing a death or 
serious bodily injury to a child in utero while engaging in conduct 
violative of any one of several enumerated offenses. Under 18 U.S.C. 
1841(a)(1) and (a)(2)(A), the statutory maximum for the conduct that 
``caused the death of, or bodily injury to a child in utero shall be 
the penalty provided under Federal law for that conduct had that injury 
or death occurred to the unborn child's mother.'' Otherwise, under 18 
U.S.C. 1841(a)(2)(C), if the person engaging in the conduct 
intentionally kills or attempts to kill the unborn child that person 
shall be punished under sections 18 U.S.C. 1111, 1112, and 1113 for 
intentionally killing or attempting to kill a human being.
    The proposed amendment references 18 U.S.C. 1841(a)(2)(C) to the 
guidelines designated in Appendix A for 18 U.S.C. 1111, 1112, and 1113.
    The proposed amendment references 18 U.S.C. 1841(a)(1) to Sec.  
2X5.1 (Other Offenses). Reference is made to Sec.  2X5.1 because, under 
18 U.S.C. 1841(a)(2)(A), the punishment for the offender is determined 
by the penalty for the conduct which caused the death or injury to a 
child in utero had that injury or death occurred to the unborn child's 
mother. For example, if the offender committed aggravated sexual abuse 
against the unborn child's mother and it caused the death of a child in 
utero, the punishment for the offender would be the same as the penalty 
for aggravated sexual abuse, not the penalty for first or second degree 
murder. There are approximately 65 other statutes listed under 18 
U.S.C. 1841(b) that require a similar approach. Properly designating 
guidelines for these offenses would be challenging, and perhaps 
confusing.
    In order to permit the courts to determine the most analogous 
guideline on a case-by-case basis, a special instruction is provided in 
Sec.  2X5.1 that the most analogous guideline for these offenses is the 
guideline that covers the underlying offense conduct.
    (E) The Farm Security and Rural Investment Act of 2002, created a 
new offense at 7 U.S.C. 2156 that prohibits the interstate movement of 
animals for animal fighting, with a one year statutory maximum.
    The Social Security Administration Act created a new offense under 
42 U.S.C. 1129(a) for prohibiting corrupt or forcible interference with 
the administration of the Social Security Administration Act. The 
statutory maximum is one year if the offense was committed only by 
threats of force, otherwise the statutory maximum is three years.
    The Consumer Product Protection Act of 2002 created a new offense 
under 18 U.S.C. 1365(f) for prohibiting the illegal tampering with a 
consumer product with a statutory maximum of one year for the first 
offense, and three years for subsequent offenses.
    The Justice for All Act of 2004 created a new offense under 42 
U.S.C. 14133 for prohibiting the misuse or unauthorized disclosure of 
DNA analyses. The maximum penalty is one year.
    The Video Voyeurism Prevention Act of 2004 created a new offense 
under 18 U.S.C. 1801 for prohibiting the knowing capture of an image of 
an individual's ``private area'' without that individual's consent, 
under circumstances in which the individual has a reasonable 
expectation of privacy. The statutory maximum for this offense is one 
year.
    To address these Class A misdemeanors offenses, the proposed 
amendment creates a new guideline at Sec.  2X5.2 (Class A Misdemeanors) 
that covers all Class A misdemeanors not otherwise provided for in a 
more specific Chapter Two guideline. The amendment assigns a base 
offense level of 6 for such offenses, which is the offense level 
typically applicable to Class A misdemeanor and regulatory offenses. A 
specific offense characteristic is provided for repeated violations.
    Proposed Amendment:
(A) The Veterans' Memorial Preservation and Recognition Act of 2003
    Section 2B1.1(b)(6) is amended by inserting ``or veterans' 
memorial'' after ``national cemetery''; and by striking ``2'' and 
inserting ``[2][4][6]''.
    The Commentary to Sec.  2B1.1 captioned ``Statutory Provisions'' is 
amended by inserting ``1369,'' after ``1363,''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 1 by inserting after the paragraph that begins `` 
`Trade secret' '' the following paragraph:
    `` `Veterans' memorial' means any structure, plaque, statue, or 
other monument described in 18 U.S.C. 1369(a).''.
    Section 2B1.5(b)(2) is amended by inserting ``or veterans' 
memorial'' after ``cemetery''; and by striking ``2'' and inserting 
``[2][4][6]''.
    The Commentary to Sec.  2B1.5 captioned ``Statutory Provisions'' is 
amended by inserting ``1369,'' after ``1361,''.
    The Commentary to Sec.  2B1.5 captioned ``Application Notes'' is 
amended in Note 3 in subdivision (B) by striking ``has the meaning 
given that term'' and inserting ``and `veterans' memorial' have the 
meaning given those terms''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. 1366 the following:
    ``18 U.S.C. 13692B1.1, 2B1.5''.
(B) The Plant Protection Act of 2002
    [Option One: Section 2N2.1 is amended by striking subsection (a) 
and inserting the following:
    ``(a) Base Offense Level:
    (1) [8][10], if the defendant was convicted under 7 U.S.C. 7734; or
    (2) 6, otherwise.''.]
    [Option Two: The Commentary to Sec.  2N2.1 captioned ``Application 
Notes''

[[Page 4801]]

is amended by striking Note 3 and inserting the following:
    ``3. Upward Departure Provisions.--The following are circumstances 
under which an upward departure may be warranted:
    (A) Death or bodily injury, extreme psychological injury, property 
damage or monetary loss resulted. See Chapter Five, Part K 
(Departures).
    (B) The defendant was convicted under 7 U.S.C. 7734.''.]
(C) The Clean Diamond Trade Act of 2003
    Chapter Two, Part T, Subpart 3 is amended in the ``Introductory 
Commentary'' in the first sentence by inserting ``and 3901,'' after 
``1708(b),''; in the second sentence by inserting ``intended to deal 
with some types of contraband, such as certain uncertified diamonds, 
but is'' after ``It is''; and by striking ``importation of contraband'' 
and inserting ``importation of other types of contraband''; and in the 
last sentence by inserting ``not specifically covered by the Subpart'' 
after ``stolen goods''; and by inserting ``if there is not another more 
specific applicable guideline'' after ``upward''.
    The Commentary to Sec.  2T3.1 captioned ``Statutory Provisions'' is 
amended by inserting ``, 3901'' after ``1708(b)''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 19 U.S.C. 2401f the following:
    ``19 U.S.C. 3901 2T3.1''.
(D) The Unborn Victims of Violence Act of 2004
    The Commentary to Sec.  2A1.1 captioned ``Statutory Provisions'' is 
amended by inserting ``1841(a)(2)(C),'' after ``1111,''.
    The Commentary to Sec.  2A1.2 captioned ``Statutory Provisions'' is 
amended by inserting ``1841(a)(2)(C),'' after ``1111,''.
    The Commentary to Sec.  2A1.3 captioned ``Statutory Provisions'' is 
amended by inserting ``1841(a)(2)(C),'' after ``1112,''.
    The Commentary to Sec.  2A1.4 captioned ``Statutory Provisions'' is 
amended by inserting ``1841(a)(2)(C),'' after ``1112,''.
    The Commentary to Sec.  2A2.1 captioned ``Statutory Provisions'' is 
amended by inserting ``1841(a)(2)(C),'' after ``1751(c),''.
    The Commentary to Sec.  2A2.2 captioned ``Statutory Provisions'' is 
amended by inserting ``1841(a)(2)(C),'' after ``1751(e),''.
    Section 2X5.1 is amended by striking ``(b)'' after ``18 U.S.C. 
3553''; and by adding at the end the following:
    ``If the defendant is convicted under 18 U.S.C. 1841(a)(1), apply 
the guideline that covers the conduct the defendant is convicted of 
having engaged in, as that conduct is described in 18 U.S.C. 1841(a)(1) 
and listed in 18 U.S.C. 1841(b).''.
    The Commentary the Sec.  2X5.1 is amended by inserting before 
``Application Note:'' the following:
    ``Statutory Provision: 18 U.S.C. 1841(a)(1).''.
    The Commentary the Sec.  2X5.1 captioned ``Application Note'' is 
amended by striking ``Note'' and inserting ``Notes''; in Note 1 by 
inserting ``In General.--'' before ``Guidelines''; and by adding at the 
end the following:
    2. Convictions under 18 U.S.C. 1841(a)(1).--
    (A) In General.--If the defendant is convicted under 18 U.S.C. 
1841(a)(1), the Chapter Two offense guideline that applies is the 
guideline that covers the conduct the defendant is convicted of having 
engaged in, i.e., the conduct of which the defendant is convicted that 
violates a specific provision listed in 18 U.S.C. 1841(b) and that 
results in the death of or bodily injury to a child in utero at the 
time of the offense of conviction.
    (B) Upward Departure Provision.--For offenses under 18 U.S.C. 
1841(a)(1), an upward departure may be warranted if the offense level 
under the applicable guideline does not provide an adequate sentence to 
account for the death of or serious bodily injury to the child in 
utero.''.
    The Commentary to Sec.  2X5.1 captioned ``Background'' is amended 
by striking ``That statute'' and all that follows through ``subsection 
(a)(2).''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. 1832 the following:
    ``18 U.S.C. 1841(a)(1) 2X5.1
    18 U.S.C. 1841(a)(2)(C) 2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2''.
(E) Guideline for Class A Misdemeanors
    Chapter Two, Part X, Subpart 5 is amended in the heading by 
inserting ``FELONY'' after ``OTHER'' and by adding at the end ``AND 
CLASS A MISDEMEANORS''.
    Section 2X5.1 is amended in the heading by inserting ``Felony'' 
after ``Other''.
    Section 2X5.1 is amended by striking ``or Class A misdemeanor''; by 
striking ``(b)'' after ``18 U.S.C. 3553''; and by adding at the end the 
following:
    ``If the offense is a Class A misdemeanor that has not been 
referenced in Appendix A (Statutory Index) to a specific offense 
guideline, apply Sec.  2X5.2 (Class A Misdemeanors (Not Covered by 
another Specific Offense Guideline)).''.
    Chapter Two, Part X, Subpart 5 is amended by adding at the end the 
following:
    ``Sec.  2X5.2. Class A Misdemeanors (Not Covered by Another 
Specific Offense Guideline)
    (a) Base Offense Level: 6
    (b) Specific Offense Characteristic:
    (1) If the defendant committed the instant offense of conviction 
subsequent to sustaining a conviction under the same provision of law 
as the instant offense of conviction, increase by 2 levels.
Commentary
    Statutory Provisions: 7 U.S.C. 2156; 18 U.S.C. 1365(f), 1801; 42 
U.S.C. 1129(a), 14133.
    Application Note:
    1. In General.--This guideline applies to Class A misdemeanors that 
are specifically referenced in Appendix A (Statutory Index) to this 
guideline. This guideline also applies to Class A misdemeanors that 
have not been referenced in Appendix A to another specific offense 
guideline in Chapter Two. Do not apply this guideline to a Class A 
misdemeanor that has been referenced in the Statutory Index to a 
guideline other than this one.''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 7 U.S.C. 2024(c) the following:
    ``7 U.S.C. 2156 2X5.2''; by inserting after the line referenced to 
18 U.S.C. 1121 the following:
    ``18 U.S.C. 1129(a) 2X5.2''; by inserting after the line referenced 
to 18 U.S.C. 1365(e) the following:
    ``18 U.S.C. 1365(f) 2X5.2''; by inserting after the line referenced 
to 18 U.S.C. 1792 the following:
    ``18 U.S.C. 1801 2X5.2''; and by inserting after the line 
referenced to 42 U.S.C. 9603(d) the following:
    ``42 U.S.C. 14133''.
    Issue for Comment: The Commission requests comment regarding 
whether it should reference to proposed Sec.  2X5.2 any other Class A 
misdemeanor offense currently referenced in Appendix A to a guideline 
that does not provide a higher offense level than proposed Sec.  2X5.2. 
Are there additional Class A misdemeanor offenses not currently 
referenced in Appendix A that should be included in Appendix A and 
referenced to proposed Sec.  2X5.2?

10. Application Issues

    Synopsis of Proposed Amendment: This proposed amendment addresses 
several issues of guideline application identified through inquiries 
made on the Commission's Helpline and at guideline seminars. The 
proposed

[[Page 4802]]

amendment would make the following changes:
    (A) Modifies the cross reference in Sec.  2D1.1 (Unlawful 
Manufacturing, Importing, Exporting, or Trafficking (Including 
Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy) to allow the court to apply Sec.  2A1.2 (Second Degree 
Murder) for cases in which the conduct involved is second degree 
murder. Currently the cross reference only allows the court to apply 
Sec.  2A1.1(First Degree Murder) even if the conduct does not 
constitute first degree murder. The proposed amendment also adds 
language that the cross reference to Sec.  2A1.1 or Sec.  2A1.2 should 
be applied if the offense level is greater than that determined under 
Sec.  2D1.1.
    (B) Adds to Chapter Three a new guideline, Sec.  3C1.3 (Offenses 
Committed While on Release), which provides a three-level adjustment in 
cases in which the statutory sentencing enhancement at 18 U.S.C. 3147 
(Penalty for an offense committed while on release) applies. Currently, 
Sec.  2J1.7 (Commission of an Offense While on Release) corresponds to 
the statutory enhancement at 18 U.S.C. 3147 and provides for a three-
level enhancement that is added to the offense level for the offense 
the defendant committed while on release. However, despite its 
reference in Appendix A (Statutory Index), 18 U.S.C. 3147 is not a 
statute of conviction, so there is no basis for requiring application 
of Appendix A. Accordingly, Sec.  2J1.7 may be overlooked. Creating a 
Chapter Three adjustment for 18 U.S.C. 3147 cases is consistent with 
other adjustments currently in Chapter Three, all of which also apply 
to a broad range of offenses. The proposed amendment also eliminates 
commentary regarding a notice requirement. The majority of circuit 
courts have found that there is no notice requirement in order for 18 
U.S.C. 3147 to apply.
    (C) Deletes from the Drug Quantity Table in Sec.  2D1.1 language 
that indicates the court should apply ``the equivalent amount of 
Schedule I or II Opiates'' (in the line referenced to Heroin), ``the 
equivalent amount of Schedule I or II Stimulants'' (in the line 
referenced to Cocaine), and ``the equivalent amount of Schedule I or II 
Hallucinogens'' (in the line referenced to LSD). Although Application 
Note 10 sets forth the marihuana equivalencies for substances not 
specifically referenced in the Drug Quantity Table, some guideline 
users erroneously calculate the base offense level without converting 
the controlled substance to its marihuana equivalency. For example, 
instead of converting 10 KG of morphine (an opiate) to 5000 KG of 
marihuana and determining the base offense level on that marihuana 
equivalency (resulting in a BOL of 34), some guideline users are 
determining the base offense level on the 10 KG of morphine (resulting 
in a BOL of 36). The proposed amendment would delete the problematic 
language and also clarify in Application Note 10 that, for cases 
involving a substance not specifically referenced in the Drug Quantity 
Table, the court is to determine the base offense level using the 
marihuana equivalency for that controlled substance.
    Proposed Amendment:
(A) Cross Reference to Murder Guidelines
    Proposed Amendment: Section 2D1.1(d) is amended by inserting ``or 
Sec.  2A1.2 (Second Degree Murder), as appropriate, if the resulting 
offense level is greater than that determined under this guideline'' 
after ``Murder)''.
(B) Sec.  2J1.7 (Commission of Offense While on Release)
    Proposed Amendment: The Commentary to Sec.  1B1.1 captioned 
``Application Notes'' is amended by striking Note 6 and by 
redesignating Note 7 as Note 6.
    Chapter Two, Part J is amended by striking section Sec.  2J1.7.
    Chapter Three, Part C is amended in the heading by adding at the 
end ``AND RELATED ADJUSTMENTS''.
    Chapter Three, Part C is amended by adding at the end the 
following:
    ``3C1.3. Commission of Offense While on Release
    If a statutory sentencing enhancement under 18 U.S.C. 3147 applies, 
increase the offense level by 3 levels.
Commentary
    Application Note:
    1. Under 18 U.S.C. 3147, a sentence of imprisonment must be imposed 
in addition to the sentence for the underlying offense, and the 
sentence of imprisonment imposed under 18 U.S.C. 3147 must run 
consecutively to any other sentence of imprisonment. Therefore, the 
court, in order to comply with the statute, should divide the sentence 
on the judgment form between the sentence attributable to the 
underlying offense and the sentence attributable to the enhancement. 
The court will have to ensure that the ``total punishment'' (i.e., the 
sentence for the offense committed while on release plus the sentence 
enhancement under 18 U.S.C. 3147) is in accord with the guideline range 
for the offense committed while on release, as adjusted by the 
enhancement in this section. For example, if the applicable adjusted 
guideline range is 30-37 months and the court determines `total 
punishment' of 36 months is appropriate, a sentence of 30 months for 
the underlying offense plus 6 months under 18 U.S.C. 3147 would satisfy 
this requirement.
    Background: ``This guideline enables the court to determine and 
implement a combined `total punishment' consistent with the overall 
structure of the guidelines, while at the same time complying with the 
statutory requirement.''.
(C) ``or Equivalent Amount''
    Proposed Amendment: Section 2D1.1(c) is amended by striking ``(or 
the equivalent amount of other Schedule I or II Opiates)'' each place 
it appears; by striking ``(or the equivalent amount of other Schedule I 
or II Stimulants)'' each place it appears; and by striking ``(or the 
equivalent amount of other Schedule I or II Hallucinogens)'' each place 
it appears.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 10 in the first paragraph by striking the third and 
fourth sentences and inserting the following:
    ``In the case of a controlled substance that is not specifically 
referenced in the Drug Quantity Table, determine the base offense level 
as follows:
    (A) use the Drug Equivalency Tables to convert the quantity of the 
controlled substance involved in the offense to its equivalent quantity 
of marihuana;
    (B) find the equivalent quantity of marihuana in the Drug Quantity 
Table; and
    (C) use the offense level that corresponds to the equivalent 
quantity of marihuana as the base offense level for the controlled 
substance involved in the offense.
    (See also Application Note 5.) For example, in the Drug Equivalency 
Tables, one gram of a substance containing oxymorphone, a Schedule I 
opiate, converts to an equivalent quantity of five kilograms of 
marihuana. In a case involving 100 g of oxymorphone, the equivalent 
quantity of marihuana would be 5000 KG, which corresponds to a base 
offense level of 28 in the Drug Quantity Table.''.

11. Circuit Conflicts (Sec.  3C1.1)

    Synopsis of Proposed Amendment: This proposed amendment addresses a 
circuit conflict regarding whether pre-investigative conduct can form 
the basis of an adjustment under Sec.  3C1.1 (Obstructing or Impeding 
the Administration of Justice). The First, Seventh, Tenth, and District 
of Columbia Circuits have concluded that

[[Page 4803]]

pre-investigation conduct can be used to support an obstruction 
adjustment. See United States v. McGovern, 329 F.3d 247, 252 (1st Cir. 
2003) (holding that the submission of false run sheets to Medicare and 
Medicaid representatives qualified for the enhancement even though the 
administrative audits were not part of a criminal investigation because 
there was a ``close connection between the obstructive conduct and the 
offense of conviction''); United States v. Snyder, 189 F.3d 640, 649 
(7th Cir. 1999) (holding that adjustment was appropriate in case in 
which defendant made pre-investigation threat to victim and did not 
withdraw his threat after the investigation began, thus obstructing 
justice during the course of the investigation); United States v. 
Mills, 194 F.3d 1108, 1115 (10th Cir. 1999) (holding that destruction 
of tape that occurred before an investigation began warranted 
application of the enhancement for obstruction of justice because the 
defendant knew an investigation would be conducted and understood the 
importance of the tape in that investigation); United States v. Barry, 
938 F.2d 1327, 1333-34 (D.C. Cir. 1991) (``Given the commentary and the 
case law interpreting Sec.  3C1.1, we conclude that the enhancement 
applies if the defendant attempted to obstruct justice in respect to 
the investigation or prosecution of the offense of conviction, even if 
the obstruction occurred before the police or prosecutors began 
investigating or prosecuting the specific offense of conviction.''). 
The Fourth, Sixth, and Eighth Circuits have held that pre-investigation 
conduct cannot support application of the obstruction of justice 
adjustment. See United States v. Self, 132 F.3d 1039 (4th Cir. 1997) 
(conduct occurring before any investigation begins is not encompassed 
within obstruction of justice provision of Sentencing Guidelines); 
United States v. Baggett, 342 F.3d 536, 542 (6th Cir. 2003) (holding 
that the obstruction of justice enhancement could not be justified on 
the basis of the threats that the defendant made to the victim prior to 
the investigation, prosecution, or sentencing of the offense); United 
States v. Stolba, 357 F.3d 850, 852-53 (8th Cir. 2004) (holding that an 
obstruction adjustment is not available when destruction of documents 
occurred before an official investigation had commenced); see also 
United States v. Clayton, 172 F.3d 347, 355 (5th Cir. 1999) (holding 
that defendant's threats to witnesses warrant the enhancement under 
Sec.  3C1.1, but stating in dicta that the guideline ``specifically 
limits applicable conduct to that which occurs during an investigation 
* * *.'').
    The proposed amendment would permit application of Sec.  3C1.1 to 
pre-investigative conduct if that conduct was intended to prevent or 
hinder the investigation, prosecution, or sentencing of the instant 
offense of conviction. Consistent with current application of the 
adjustment, the pre-investigative conduct also must relate to the 
offense of conviction and all relevant conduct or to a closely related 
offense.
    The proposed amendment also addresses two other circuit conflicts 
by amending Application Note 4(b) to include ``perjury in the course of 
a civil proceeding (if the perjury pertains to conduct comprising the 
offense of conviction)'' and ``false statements on a financial 
affidavit in order to obtain court appointed counsel'' as examples of 
conduct to which Sec.  3C1.1 normally would apply.
    Proposed Amendment: Section 3C1.1 is amended by striking ``If'' and 
all that follows through ``2 levels.'' and inserting the following:

    ``If--
    (1) the defendant willfully obstructed or impeded, or attempted 
to obstruct or impede, the administration of justice;
    (2) the conduct or attempted conduct described in subdivision 
(1) occurred (A) prior to the investigation of the instant offense 
of conviction, and was intended to prevent or hinder the 
investigation, prosecution, or sentencing of the instant offense of 
conviction; or (B) during the course of the investigation, 
prosecution, or sentencing of the instant offense of conviction; and
    (3) the conduct or attempted conduct described in subdivision 
(1) related to (A) the defendant's offense of conviction and any 
relevant conduct; or (B) a closely related offense,

increase by 2 levels.''.

    The Commentary to Sec.  3C1.1 captioned ``Application Notes'' is 
amended by striking Note 1 and inserting the following:
    ``1. In General.--Subdivision (3) makes clear that, in order for an 
adjustment under this section to apply, the obstructive or attempted 
obstructive conduct must be related to the defendant's offense of 
conviction and any relevant conduct, or to an otherwise closely related 
case, such as the case of a co-defendant.''.
    The Commentary to Sec.  3C1.1 captioned ``Application Notes'' is 
amended in Note 2 by inserting ``Limitations on Applicability of 
Adjustment.--'' before ``This provision''; in Note 3 by inserting 
``Covered Conduct Generally.--'' before ``Obstructive''; in Note 4 by 
inserting ``Examples of Covered Conduct.--'' before ``The following''; 
in Note 5 by inserting ``Examples of Conduct Not Covered.--'' before 
``Some types''; in Note 6 by inserting `` `Material' Evidence 
Defined.--'' before `` `Material' evidence''; in Note 7 by inserting 
``Inapplicability of Adjustment in Certain Circumstances.--'' before 
``If the defendant''; in Note 8 by inserting ``Grouping.--'' before 
``If the defendant''; and in Note 9 by inserting ``Accountability for 
Sec.  1B1.3(a)(1)(A) Conduct.--''.
    The Commentary to Sec.  3C1.1 captioned ``Application Notes'' is 
amended in Note 4 in subdivision (b) by inserting ``, including during 
the course of a civil proceeding pertaining to conduct constituting the 
offense of conviction'' after ``perjury''; by striking the period at 
the end of subdivision (j) and inserting a semi-colon; and by adding at 
the end the following:
    ``(k) threatening the victim of the offense in order to prevent the 
victim from reporting the conduct constituting the offense of 
conviction;
    (l) making false statements on a financial affidavit in order to 
obtain court-appointed counsel.''.

12. Chapter Eight--Privilege Waiver

    Issue for Comment: The Commission has been asked to reconsider a 
portion of its 2004 amendments to Chapter Eight, the Organizational 
Sentencing Guidelines, namely, a single sentence of commentary at Sec.  
8C2.5(g). Section 8C2.5 provides for the calculation of the culpability 
score for defendant organizations, and subsection (g) provides for 
graduated decreases in the culpability score if a defendant 
organization has self-reported, cooperated with the authorities, and 
accepted responsibility. In 2004, the Commission added the following 
sentence to the commentary:
    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) [Self-Reporting, 
Cooperation, and Acceptance of Responsibility] unless such waiver is 
necessary in order to provide timely and thorough disclosure of all 
pertinent information known to the organization.
    In the Reason for Amendment (see Supplement to Appendix C 
(Amendment 673)), the Commission stated that it expects such waivers 
will be required on a limited basis, consistent with statements of the 
Department of Justice in the United States Attorneys' Bulletin, 
November 2003, Volume 51, Number 6, pp. 1 and 8.
    In light of requests to modify or remove this language submitted to 
the

[[Page 4804]]

Commission in the past year, the Commission listed as one of its 
priorities for the current amendment cycle, the ``review and possible 
amendment'' of the waiver language in Application Note 12. At its 
public meeting on November 15, 2005, the Commission heard testimony 
from five representatives on behalf of various organizations (the 
American Bar Association, the Association of Corporate Counsel, 
National Association of Manufacturers, the Chemistry Council, the 
Chamber of Commerce, the National Association of Criminal Defense 
Lawyers, and former officials of the Department of Justice) about what 
they perceived as the unintended but potentially deleterious effects on 
the criminal justice process of this commentary language.
    Accordingly, the Commission solicits comment on the following: (1) 
whether this commentary language is having unintended consequences; (2) 
if so, how specifically has it adversely affected the application of 
the sentencing guidelines and the administration of justice; (3) 
whether this commentary language should be deleted or amended; and (4) 
if it should be amended, in what manner.

13. Crime Victims' Rights

    Synopsis of Proposed Amendment: As part of the Justice for All Act 
of 2004, Pub. L. 108-405, Congress provided crime victims various 
rights during the criminal justice process. These rights are set forth 
at 18 U.S.C. 3771. Included is the ``right to be reasonably heard at 
any public proceeding in the district court involving release, plea, 
sentencing, or any parole proceeding.'' 18 U.S.C. 3771(a)(4). This 
proposed amendment amends Chapter Six (Sentencing Procedures and Plea 
Agreements) to provide a policy statement regarding crime victims' 
rights.
    Proposed Amendment: Chapter Six is amended in the heading by 
striking ``AND'' and inserting a comma; and by adding at the end ``, 
AND CRIME VICTIMS' RIGHTS''.
    Chapter Six, Part A is amended by adding at the end the following:
    ``Sec.  6A1.5. Crime Victims' Rights (Policy Statement).
    In any case involving the sentencing of a defendant for an offense 
against a crime victim, the court shall ensure that the crime victim is 
afforded the rights described in 18 U.S.C. 3771 and in any other 
provision of Federal law pertaining to the treatment of crime victims.
Commentary
    Application Note:
    1. Definition.--For purposes of this policy statement, `crime 
victim' has the meaning given that term in 18 U.S.C. 3771(e).''.

14. Reductions in Term of Imprisonment Based on Bureau of Prisons 
Motion

    Synopsis of Proposed Amendment: This proposed amendment implements 
the directive in 28 U.S.C. 994(t) that the Commission ``in promulgating 
general policy statements regarding the sentence modification 
provisions in section 3582(c)(1)(A) of title 18, shall describe what 
should be considered extraordinary and compelling reasons for sentence 
reduction, including the criteria to be applied and a list of specific 
examples.''
    The proposed amendment provides a new policy statement at Sec.  
1B1.13 (Reduction in Term of Imprisonment as a Result of Motion by 
Director of Bureau of Prisons). The policy statement restates the 
statutory bases for a reduction in sentence under 18 U.S.C. 
3582(c)(1)(A). In addition, the policy statement provides that in all 
cases there must be a determination made by the court that the 
defendant no longer is a danger to the community. Proposed Application 
Note 1 has two purposes. First, it provides a rebuttable presumption 
with respect to a Bureau of Prisons motion for a reduction based on 
extraordinary and compelling reasons. Second, as stated in 28 U.S.C. 
994(t), the Note states that rehabilitation of the defendant alone 
shall not be considered an extraordinary and compelling reason 
warranting a reduction.
    Proposed Amendment: Chapter One, Part B is amended by adding at the 
end the following:
    ``1B1.13. Reduction in Term of Imprisonment as a Result of Motion 
by Director of Bureau of Prisons (Policy Statement).
    Upon motion of the Director of the Bureau of Prisons under 18 
U.S.C. 3582(c)(1)(A), the court may reduce a term of imprisonment if, 
after considering the factors set forth in 18 U.S.C. 3553(a), the court 
determines that--
    (1) (A) an extraordinary and compelling reason warrants the 
reduction; or
    (B) the defendant is (i) at least 70 years old; and (ii) has served 
at least 30 years in prison pursuant to a sentence imposed under 18 
U.S.C. 3559(c) for the offense or offenses for which the defendant is 
imprisoned;
    (2) the defendant is not a danger to the safety of any other person 
or to the community pursuant to 18 U.S.C. 3142(g); and
    (3) the reduction is consistent with this policy statement.
Commentary
    Application Notes:
    1. Application of Subdivision (1)(A).--
    (A) Extraordinary and Compelling Reasons.--A determination made by 
the Director of the Bureau of Prisons that a particular case warrants a 
reduction for extraordinary and compelling reasons shall be considered 
as such for purposes of subdivision (1)(A).
    (B) Rehabilitation of the Defendant.--Pursuant to 28 U.S.C. 994(t), 
rehabilitation of the defendant is not, by itself, an extraordinary and 
compelling reason for purposes of subdivision (1)(A).
    2. Application of Subdivision (3).--Any reduction made pursuant to 
a motion by the Director of the Bureau of Prisons for the reasons set 
forth in subdivisions (1) and (2) is consistent with this policy 
statement.
    Background: This policy statement implements 28 U.S.C. 994(t).''.
    Issue for Comment: The Commission requests comment regarding:
    (1) Whether the provisions of subdivision (1)(B) should be expanded 
to cover defendants who are at least 70 years old and have served at 
least 30 years in prison pursuant to a sentence imposed under any 
statute provided that the sentence imposed for offense(s) for which the 
defendant is imprisoned was not life imprisonment.
    (2) If the Commission does so expand subdivision (1)(B) as 
described in paragraph (1), should certain offenses be excluded from 
application of subdivision (1)(B), such as terrorism offenses or sexual 
offenses involving minors.

[FR Doc. 06-697 Filed 1-26-06; 8:45 am]
BILLING CODE 2210-40-P