[Federal Register Volume 71, Number 93 (Monday, May 15, 2006)]
[Notices]
[Pages 28063-28073]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-7344]


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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of submission to Congress of amendments to the 
sentencing guidelines effective November 1, 2006.

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

DATES: The Commission has specified an effective date of November 1, 
2006, for the amendments set forth in this notice.

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

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is 
an independent agency in the judicial branch of the United States 
Government. The Commission promulgates sentencing guidelines and policy 
statements for Federal sentencing courts pursuant to 28 U.S.C. 994(a). 
The Commission also periodically reviews and revises previously 
promulgated guidelines pursuant to 28 U.S.C. 994(o) and generally 
submits guideline amendments to Congress pursuant to 28 U.S.C. 994(p) 
not later than the first day of May each year. Absent action of 
Congress to the contrary, submitted amendments become effective by 
operation of law on the date specified by the Commission (generally 
November 1 of the year in which the amendments are submitted to 
Congress).
    Notice of proposed amendments was published in the Federal Register 
on January 27, 2006 (see 71 FR 4782). The Commission held a public 
hearing on the proposed amendments in Washington, DC, on March 15, 
2006. On May 1, 2006, the Commission submitted these amendments to 
Congress and specified an effective date of November 1, 2006.

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

Ricardo H. Hinojosa,
Chair.
    1. Amendment: Chapter One, Part B is amended by adding at the end 
the following:
``Sec.  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 (and 
may impose a term of supervised release with or without conditions that 
does not exceed the unserved portion of the original term of 
imprisonment) if, after considering the factors set forth in 18 U.S.C. 
3553(a), to the extent that they are applicable, the court determines 
that--
    (1)(A) Extraordinary and compelling reasons warrant the reduction; 
or
    (B) The defendant (i) is 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, as provided in 18 U.S.C. 3142(g); and
    (3) The reduction is consistent with this policy statement.

Commentary

    Application Notes:
    1. Application of Subsection (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 is an initial step toward 
implementing 28 U.S.C. 994(t). The Commission intends to develop 
further criteria to be applied and a list of specific examples of 
extraordinary and compelling reasons for sentence reduction pursuant to 
such statute.''.
    Reason for Amendment: This amendment creates a new policy statement 
at Sec.  1B1.13 (Reduction in Term of Imprisonment as a Result of 
Motion by Director of Bureau of Prisons) as a first step toward 
implementing 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 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 is not a danger to 
the safety of any other person or to the community. The amendment also 
provides background commentary that states the Commission's intent to

[[Page 28064]]

develop criteria to be applied and a list of specific examples pursuant 
to 28 U.S.C. 994(t).
    2. Amendment: The Commentary to Sec.  1B1.1 captioned ``Application 
Notes'' is amended by striking Note 6; and by redesignating Note 7 as 
Note 6.
    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.
    Section 2D1.1(d)(1) 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)''.
    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.
    (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 set forth in this Note, 1 gm of a substance containing 
oxymorphone, a Schedule I opiate, converts to an equivalent quantity of 
5 kg of marihuana. In a case involving 100 gm of oxymorphone, the 
equivalent quantity of marihuana would be 500 kg, which corresponds to 
a base offense level of 28 in the Drug Quantity Table.''
    Chapter Two, Part J is amended by striking Sec.  2J1.7 and its 
accompanying commentary.
    Chapter 3, 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. Commission of Offense While on Release
    If a statutory sentencing enhancement under 18 U.S.C. Sec.  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 statutory 
sentencing 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 a 
`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: An enhancement under 18 U.S.C. 3147 applies, after 
appropriate sentencing notice, when a defendant is sentenced for an 
offense committed while released in connection with another Federal 
offense.
    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.''.
    Reason for Amendment: This amendment addresses several problematic 
areas of guideline application. First, the amendment adds language to 
the cross reference at subsection (d) of Sec.  2D1.1 (Unlawful 
Manufacturing, Importing, Exporting, or Trafficking (Including 
Possession with Intent to Commit These Offenses); Attempt or 
Conspiracy) to allow the application of Sec.  2A1.2 (Second Degree 
Murder) in cases in which the conduct involved is second degree murder, 
if the resulting offense level is greater than the offense level 
determined under Sec.  2D1.1.
    Second, the amendment creates a new guideline at Sec.  3C1.3 
(Commission of Offense 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. The amendment also deletes Sec.  2J1.7 (Commission of Offense 
While on Release), the Chapter Two guideline to which the statutory 
enhancement at 18 U.S.C. 3147 had been referenced prior to the 
amendment. Despite its reference in Appendix A (Statutory Index), 18 
U.S.C. 3147 is not an offense of conviction and thus does not require 
reference in Appendix A. Creating a Chapter Three adjustment for 18 
U.S.C. 3147 cases ensures the enhancement is not overlooked and is 
consistent with other adjustments in Chapter Three, all of which apply 
to a broad range of offenses.
    Third, the amendment deletes from the Drug Quantity Table in Sec.  
2D1.1(c) language that indicates the court should apply ``the 
equivalent amount of other Schedule I or II Opiates'' (in the line 
referenced to Heroin), ``the equivalent amount of other Schedule I or 
II Stimulants'' (in the line referenced to Cocaine), and ``the 
equivalent amount of other Schedule I or II Hallucinogens'' (in the 
line referenced to LSD). This language caused some guideline users to 
erroneously calculate the base offense level without converting the 
controlled substance to its marihuana equivalency, even though 
Application Note 10 of Sec.  2D1.1 sets forth the marihuana 
equivalencies for substances not specifically referenced in the Drug 
Quantity Table. 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 base offense level 
of 34), some guideline users determined the base offense level on the 
10 KG of morphine by using the equivalent amount of heroin (resulting 
in a base offense level of 36). This amendment deletes the problematic 
language and also clarifies 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.
    3. Amendment: 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),''.

[[Page 28065]]

    Section 2B1.1(b)(6) is amended by inserting ``or veterans' 
memorial'' after ``national cemetery''.
    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)(E) is amended by inserting ``or veterans' 
memorial'' after ``cemetery''.
    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''.
    The Commentary to Sec.  2N2.1 captioned ``Application Notes'' is 
amended by striking Note 3 and inserting the following:
    ``3. Upward Departure Provisions.--The following are circumstances 
in 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.''.
    Chapter Two, Part T, Subpart 3 is amended in the ``Introductory 
Commentary'' in the first sentence by inserting ``and 3907,'' after 
``1708(b),''; in the second sentence by striking ``It is not intended 
to deal with the importation of contraband,'' and inserting ``It is 
intended to deal with some types of contraband, such as certain 
uncertified diamonds, but is not intended to deal with the importation 
of other types of contraband,''; in the last sentence by inserting 
``not specifically covered by this 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 ``, 3907'' after ``1708(b)''.
    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. Sec.  3553''; and by adding at the 
end the following paragraph:
    ``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. For example, if the defendant 
committed aggravated sexual abuse against the unborn child's mother and 
it caused the death of the child in utero, the applicable Chapter Two 
guideline would be Sec.  2A3.1 (Criminal Sexual Abuse; Attempt to 
Commit Criminal Sexual Abuse).
    (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 adequately account for the 
death of, or serious bodily injury to, the child in utero.
    3. Application of Sec.  2X5.2.--This guideline applies only to 
felony offenses not referenced in Appendix A (Statutory Index). For 
Class A misdemeanor offenses that have not been referenced in Appendix 
A, apply Sec.  2X5.2 (Class A Misdemeanors (Not Covered by Another 
Specific Offense Guideline)).''.
    The Commentary to Sec.  2X5.1 captioned ``Background'' is amended 
in the first paragraph by striking ``Where there is no sufficiently'' 
and all that follows through ``Sentencing Commission.' '' and inserting 
the following:
    ``In a case in which there is no sufficiently analogous guideline, 
the provisions of 18 U.S.C. 3553 control.''.
    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.

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 misdemeanor 
offenses that are specifically referenced in Appendix A (Statutory 
Index) to this guideline. This guideline also applies to Class A 
misdemeanor offenses that have not been referenced in Appendix A. Do 
not apply this guideline to a Class A misdemeanor that has been 
specifically referenced in Appendix A to another Chapter Two 
guideline.''.
    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. 1366 the following:
``18 U.S.C. 1369 2B1.1, 2B1.5'';
by inserting after the line referenced to 18 U.S.C. 1792 the following:
``18 U.S.C. 1801 2x5.2'';
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'';
by inserting after the line referenced to 19 U.S.C. 2401f the 
following:
``19 U.S.C. 3907 2T3.1''; and
by inserting after the line referenced to 42 U.S.C. 9603(d) the 
following:
``42 U.S.C. 14133 2x5.2''.
    Reason for Amendment: This five-part amendment makes several 
additions to various guideline provisions in response to recently-
enacted legislation, and creates a new guideline at Sec.  2X5.2 to 
cover certain Class A misdemeanors.
    First, this amendment responds to section 2 of the Veterans' 
Memorial Preservation and Recognition Act of

[[Page 28066]]

2003, Public Law 108-29. This Act created a new offense at 18 U.S.C. 
1369 that prohibits the destruction of veterans' memorials and imposes 
a ten-year statutory maximum term of imprisonment. This amendment 
refers this 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), and broadens the application of the 
two-level enhancement under both Sec. Sec.  2B1.1(b)(6) and 2B1.5(b)(2) 
to include veterans' memorials. The two-level enhancement at Sec.  
2B1.1(b)(6), combined with the cross reference at Sec.  2B1.1(c)(4), 
ensures that the penalty for the destruction of veterans' memorials 
will reflect the status of a veterans' memorial as a specially 
protected cultural heritage resource.
    Second, this amendment addresses the Plant Protection Act of 2002, 
Public Law 107-171, which created a new offense under 7 U.S.C. 7734 for 
knowingly importing or exporting plants, plant products, biological 
control organisms, and like products for distribution or sale. The 
statutory maximum term of imprisonment for the first offense is five 
years, and for subsequent offenses the statutory maximum term of 
imprisonment is ten years. This amendment modifies Application Note 3 
of Sec.  2N2.1 (Violations of Statutes and Regulations Dealing with Any 
Food, Drug, Biological Product, Device, Cosmetic, or Agricultural 
Product) to provide that an upward departure may be warranted if a 
defendant is convicted under 7 U.S.C. 7734.
    Third, this amendment addresses the Clean Diamond Trade Act of 
2003, Public Law 108-19, and accompanying Executive Order 13312, which 
prohibits (1) ``the importation into, or exportation from, the United 
States * * * of any rough diamond, from whatever source, unless the 
rough diamond has been controlled through the [Kimberley Process 
Certification Scheme]; and (2) any transaction by a United States 
person anywhere, or any transaction that occurs in whole or in part 
within the United States, that evades or avoids, or has the purpose of 
evading or avoiding, or attempts to violate, any of the prohibitions 
set forth in this section,'' and conspiracies to commit such acts. This 
amendment references the new offense at 19 U.S.C. 3907 to 2T3.1 
(Evading Import Duties or Restrictions (Smuggling); Receiving or 
Trafficking in Smuggled Property) because the offense involves 
importing into the United States ``conflict'' diamonds (so-called 
because the profits from their sale are frequently used to fund rebel 
and military activities) without proper certification or payment of 
duty fees according to the Kimberley Process Certification Scheme, a 
process that legitimizes the quality and original source of the 
diamond. Because the essence of this new statutory offense is to avoid 
proper certification and evade duty fees, penalties for its violation 
are appropriately covered by Sec.  2T3.1. This amendment also adds 
language referencing ``contraband diamonds'' to the introductory 
commentary of Chapter Two, Part T, Subpart Three 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.
    Fourth, this amendment implements the Unborn Victims of Violence 
Act of 2004, Public Law 108-212, which created a new offense at 18 
U.S.C. 1841 for causing death or serious bodily injury to a child in 
utero while engaging in conduct violative of any of over 60 offenses 
enumerated at 18 U.S.C. 1841(b). Under 18 U.S.C. 1841(a)(1) and 
(a)(2)(A), the statutory maximum term of imprisonment 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 1111, 1112, and 1113 for 
intentionally killing or attempting to kill a human being.'' The 
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, which are 
Sec. Sec.  2A1.1 (First Degree Murder), 2A1.2 (Second Degree Murder), 
2A1.3 (Voluntary Manslaughter), and 2A1.4 (Involuntary Manslaughter). 
This amendment also refers the provisions under 18 U.S.C. 1841(a)(1) 
and (a)(2)(A) to 2X5.1 (Other Offenses) and adds a special instruction 
that the most analogous guideline for these offenses is the guideline 
that covers the underlying offenses.
    Fifth, this amendment creates a new guideline at Sec.  2X5.2 (Class 
A Misdemeanors) that covers all Class A misdemeanors not otherwise 
referenced to a more specific Chapter Two guideline. The amendment 
assigns a base offense level of 6 for such offenses, consistent with 
the guidelines' treatment of many Class A misdemeanor and regulatory 
offenses. The amendment also references several new Class A 
Misdemeanors to this guideline. With the promulgation of this new 
guideline, the Commission will reference new Class A Misdemeanor 
offenses either to this guideline or to another, more specific Chapter 
Two guideline, as appropriate.
    4. Amendment: 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''.
    Section 2A6.1 is amended by adding at the end 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.''.
    The Commentary to Sec.  2A6.1 captioned ``Statutory Provisions'' is 
amended by inserting ``1038,'' after ``879,''.
    The Commentary to Sec.  2K2.1 captioned ``Statutory Provisions'' is 
amended by inserting ``, 2332g'' after ``(k)-(o)''.
    Section 2L1.1(b), as amended by Amendment 10 of this document, is 
further amended by adding at the end the following:
    ``(9) If the defendant was convicted under 8 U.S.C. 1324(a)(4), 
increase by 2 levels.''.
    The Commentary to Sec.  2M6.1 captioned ``Statutory Provisions'' is 
amended by inserting ``175c,'' after ``175b,''; by inserting ``832,'' 
after ``831,''; and 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. 175b the following:
``18 U.S.C. 175c 2M6.1'';
by inserting after the line referenced to 18 U.S.C. 831 the following:
``18 U.S.C. 832 2M6.1'';
by inserting after the line referenced to 18 U.S.C. 1037 the following:
``18 U.S.C. 1038 2A6.1''; and
by inserting after the line referenced to 18 U.S.C. 2332f the 
following:
``18 U.S.C. 2332g 2K2.1, 18 U.S.C. 2332h 2M6.1''.
    Reason for Amendment: This amendment implements various provisions 
of the Intelligence Reform and Terrorism Prevention Act of 2004 (the 
``Act''), Public Law 108-458.
    Section 5401 of the Act adds a new subsection (a)(4) to 8 U.S.C. 
1324 that

[[Page 28067]]

increases the otherwise applicable penalties by up to ten years' 
imprisonment 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)(i) aliens 
were transported in a manner that endangered their lives; or (ii) the 
aliens presented a life-threatening health risk to people in the United 
States. Offenses under 18 U.S.C. 1324 are referenced to Sec.  2L1.1 
(Smuggling, Transporting, or Harboring an Unlawful Alien). In response 
to the new offense, the amendment adds a two-level specific offense 
characteristic at Sec.  2L1.1(b)(7) applicable to offenses of 
conviction under 8 U.S.C. 1324(a)(4), to account for the increased 
statutory maximum penalty for such offenses.
    Section 6702 of the Act creates a new offense at 18 U.S.C. 1038 
(False Information and Hoaxes). The 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. The Commission referenced 
the new offense to these guidelines because the conduct criminalized by 
the new statute is analogous to conduct already covered by other 
statutes referenced to these two guidelines.
    Section 6803 of the Act creates a new offense at 18 U.S.C. 832 
(Participation in Nuclear and Weapons of Mass Destruction Threats in 
the United States), relating to participation in nuclear, and weapons 
of mass destruction, threats to the United States. 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 sections 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 
amendment references 18 U.S.C. 832 to 2M6.1 because this offense is 
similar to other offenses referenced to this guideline.
    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. 
The amendment references 18 U.S.C. 2332g to 2K2.1 (Unlawful Receipt, 
Possession, or Transportation of Firearms or Ammunition; Prohibited 
Transactions Involving Firearms or Ammunition) because the types of 
weapons described in the offense would be covered as destructive 
devices under 26 U.S.C. 5845(a).
    Section 6905 of the Act creates a new offense at 18 U.S.C. 2332h 
(Radiological Dispersal Devices) prohibiting the production, transfer, 
receipt, possession, or threat to use, any radiological dispersal 
device. The amendment references 18 U.S.C. 2332h to 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.
    Section 6906 of the Act creates a new offense at 18 U.S.C. 175c 
(Variola Virus) that prohibits the production, acquisition, transfer, 
or possession of, or the threat to use, the variola virus. The 
amendment references the new offense to Sec.  2M6.1 because the variola 
virus may be used as a biological agent or toxin and, therefore, it is 
appropriate to reference this new offense to this guideline.
    5. Amendment: Section 2B5.3 and Appendix A (Statutory Index), 
effective October 24, 2005 (see USSC Guidelines Manual, Supplement to 
Appendix C, Amendment 675), are repromulgated with the following 
changes:
    The Commentary to Sec.  2B5.3 captioned ``Application Notes'' is 
amended in Note 1, in the paragraph that begins ``Uploading'' by 
striking ``item in an openly shared file'' and inserting ``item as an 
openly shared file''; and by striking ``placed in''.
    Reason for Amendment: This amendment re-promulgates as a permanent 
amendment the temporary, emergency amendment to Sec.  2B5.3 (Criminal 
Infringement of Copyright or Trademark), and Appendix A (Statutory 
Index), which became effective on October 24, 2005. The amendment 
implements the directive in section 105 of the Family Entertainment and 
Copyright Act of 2005, Public Law 109-9, which instructs the 
Commission, under emergency authority, 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 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 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. The 
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. The

[[Page 28068]]

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 in 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 amendment deletes the application note 
from the guideline.

Indeterminate Number

    The amendment addresses the final directive by amending Application 
Note 2, which sets forth the rules for determining the infringement 
amount. The 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.

New Offense

    Finally, the amendment provides a reference in Appendix A 
(Statutory Index) for the new offense at 18 U.S.C. 2319B. This offense 
is to be referenced to Sec.  2B5.3.
    6. Amendment: Section 2D1.1, effective March 27, 2006 (USSC 
Guidelines Manual, Supplement to the 2005 Supplement to Appendix C, 
Amendment 681), is repromulgated without change.
    Reason for Amendment: This amendment re-promulgates as a permanent 
amendment the temporary, emergency amendment that implemented the 
directive in the United States Parole Commission Extension and 
Sentencing Commission Authority Act of 2005, Public Law 109-76. That 
Act requires the Commission, under emergency amendment authority, to 
implement section 3 of the Anabolic Steroid Control Act of 2004, Public 
Law 108-358 (the ``ASC Act''), which 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 emergency amendment became effective on March 27, 2006 (See 
Supplement to Appendix C, Amendment 681).
    The 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). The amendment eliminates the sentencing distinction 
between anabolic steroids and other Schedule III substances when the 
steroid is in a pill, capsule, tablet, or liquid form. For anabolic 
steroids in other forms (e.g., patch, topical cream, aerosol), the 
amendment instructs the court that it shall make a reasonable estimate 
of the quantity of anabolic steroid involved in the offense, and in 
making such estimate, the court shall consider that each 25 mg of 
anabolic steroid is one ``unit''.
    In addition, the amendment addresses two harms often associated 
with anabolic steroid offenses by providing new enhancements in Sec.  
2D1.1(b)(6) and (b)(7). Subsection (b)(6) provides a two-level 
enhancement if the offense involved the distribution of an anabolic 
steroid and a masking agent. Subsection (b)(7) provides a two-level 
enhancement if the defendant distributed an anabolic steroid to an 
athlete. Both enhancements address congressional concern with 
distribution of anabolic steroids to athletes, particularly the impact 
that steroids distribution and steroids use has on the integrity of 
sport, either because of the unfair advantage gained by the use of 
steroids or because of the concealment of such use.
    The amendment also amends Application Note 8 of Sec.  2D1.1 to 
provide that an adjustment under Sec.  3B1.3 (Abuse of Position of 
Trust or Use of Special Skill) ordinarily would apply in the case of a 
defendant who used his or her position as a coach to influence an 
athlete to use an anabolic steroid.
    7. 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: 15 
U.S.C. 7704(d);''.
    Chapter Three, Part C, as amended by Amendment 2 of this document, 
is further amended by adding at the end the following:
``Sec.  3C1.4. False Registration of Domain Name
    If a statutory enhancement under 18 U.S.C. 3559(f)(1) applies, 
increase by 2 levels.

Commentary

    Background: This adjustment implements the directive to the 
Commission in section 204(b) of Public Law 108-482.''.
    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''.
    Reason for Amendment: This amendment (A) implements the directive 
to the Commission in section 204(b) of the Intellectual Property 
Protection and Courts Administration Act of 2004, Public Law 109-9; and 
(B) addresses the new offense in section 5(d) of the Controlling the 
Assault of Non-Solicited Pornography and Marketing Act of 2003, Public 
Law 108-187 (``CAN-SPAM Act'')(15 U.S.C. 7704(d)).
    Section 204(b) of the Intellectual Property Protection and Courts 
Administration Act of 2004 directed 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. The amendment 
implements this directive by creating a new guideline, at Sec.  3C1.4 
(False Registration of Domain Names), which provides a two-level 
adjustment 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 
in a straightforward and uncomplicated manner.
    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. The amendment references the new offense, found at 15 
U.S.C. 7704(d), to 2G2.5 (Recordkeeping Offenses Involving the 
Production of Sexually Explicit Materials). Prior to this amendment, 
Sec.  2G2.5 applied 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

[[Page 28069]]

the Attorney General in accordance with applicable regulations. 
Although offenses under 15 U.S.C. 7704(d) do not involve the same 
recording and reporting functions, section 7704(d) offenses essentially 
are 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 amendment also expands the heading of Sec.  
2G2.5 specifically to cover offenses under 15 U.S.C. 7704(d).
    8. Amendment: Section 2J1.2 and Appendix A (Statutory Index), 
effective October 24, 2005 (see USSC Guidelines Manual, Supplement to 
Appendix C, Amendment 676), are repromulgated without change.
    Reason for Amendment: This amendment repromulgates as a permanent 
amendment the temporary, emergency amendment to Sec.  2J1.2 and 
Appendix A (Statutory Index), which became effective on October 24, 
2005 (see Supplement to Appendix C, Amendment 676). The amendment 
implements section 6703 of the Intelligence Reform and Terrorism 
Prevention Act of 2004 (the ``Act''), Public Law 108-458, which 
provides an enhanced penalty of not more than 8 years of imprisonment 
for offenses 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).'' Section 6703(b) requires the Sentencing 
Commission to amend the sentencing guidelines 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.'' 
Section 3 of the United States Parole Commission Extension and 
Sentencing Commission Authority Act of 2005, Public Law 109-76, 
directed the Commission, under emergency authority, to promulgate an 
amendment implementing section 6703(b).
    First, the amendment references convictions under 18 U.S.C. 1001 to 
2J1.2 (Obstruction of Justice) ``when the statutory maximum term of 
imprisonment relating to international or domestic terrorism is 
applicable.'' It also adds a new specific offense characteristic at 
Sec.  2J1.2(b)(1)(B) providing for a 12 level increase for a defendant 
convicted under 18 U.S.C. 1001 and 1505 ``when the statutory maximum 
term of imprisonment relating to international or domestic terrorism is 
applicable.'' This 12 level increase is applied in lieu of the current 
8 level increase for injury or threats to persons or property. The 
increase of 12 levels is intended to provide parity with the treatment 
of federal crimes of terrorism within the limits of the 8 year 
statutory maximum penalty. It is also provided to ensure a 5 year 
sentence of imprisonment for offenses that involve international or 
domestic terrorism.
    Second, the amendment adds to Application Note 1 definitions for 
``domestic terrorism'' and ``international terrorism,'' using the 
meanings given the terms at 18 U.S.C. 2331(5) and (1), respectively.
    Third, the amendment adds to Application Note 2 an instruction that 
if Sec.  3A1.4 (Terrorism) applies, do not apply Sec.  2J1.2(b)(1)(B).
    9. Amendment: Section 2K2.1(a) is amended by striking subdivision 
(1) and inserting the following:
    ``(1) 26, if (A) the offense involved a (i) semiautomatic firearm 
that is capable of accepting a large capacity magazine; or (ii) firearm 
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 (i) semiautomatic firearm 
that is capable of accepting a large capacity magazine; or (ii) firearm 
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 (i) offense involved a (I) semiautomatic firearm that is 
capable of accepting a large capacity magazine; or (II) firearm that is 
described in 26 U.S.C. 5845(a); and (ii) 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 in subdivision (5) by striking ``or 18 U.S.C. 921(a)(30)''.

    Section 2K2.1(b) is amended by striking subdivision (4) and 
inserting the following:
    ``(4) If any firearm (A) was stolen, increase by 2 levels; or (B) 
had an altered or obliterated serial number, increase by 4 levels.''.
    Section 2K2.1(b) is amended by redesignating subdivisions (5) and 
(6) as subdivisions (6) and (7), respectively; and by inserting after 
``except if subsection (b)(3)(A) applies.'' the following subdivision:
    ``(5) If the defendant engaged in the trafficking of firearms, 
increase by 4 levels.''.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended by striking Note 2 and inserting the following:
    ``2. Semiautomatic Firearm Capable of Accepting a Large Capacity 
Magazine.--For purposes of subsections (a)(1), (a)(3), and (a)(4), a 
'semiautomatic firearm capable of accepting a large capacity magazine' 
means a semiautomatic firearm that has the ability to fire many rounds 
without reloading because at the time of the offense (A) the firearm 
had attached to it a magazine or similar device that could accept more 
than 15 rounds of ammunition; or (B) a magazine or similar device that 
could accept more than 15 rounds of ammunition was in close proximity 
to the firearm. This definition does not include a semiautomatic 
firearm with an attached tubular device capable of operating only with 
.22 caliber rim fire ammunition.''.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended by striking Note 4; by redesignating Notes 5 through 10 as 
Notes 4 through 9, respectively; by striking Note 11; by redesignating 
Notes 12 through 14 as Notes 10 through 12, respectively; and by 
striking Notes 15 and 16.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended by striking Note 8, as redesignated by 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. Sec.  922(i), (j), or (u), or 18 
U.S.C. Sec.  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 enhancement in subsection 
(b)(4)(A). This is because the base offense level takes into account 
that the firearm or ammunition was stolen. However, if 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 enhancement 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, 
if the offense involved a stolen firearm or stolen ammunition, apply 
subsection (b)(4)(A).

[[Page 28070]]

    (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.''.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended in Note 4, as redesignated by this amendment, by inserting 
``Application of Subsection (a)(7).--'' before ``Subsection (a)(7)''; 
in Note 5, as redesignated by this amendment, by inserting 
``Application of Subsection (b)(1).--'' before ``For purposes of 
calculating''; in Note 6, as redesignated by this amendment, by 
inserting ``Application of Subsection (b)(2).--'' before ``Under 
subsection (b)(2)''; in Note 7, as redesignated by this amendment, by 
inserting ``Destructive Devices.--'' before ``A defendant''; in Note 9, 
as redesignated by this amendment, by inserting ``Application of 
Subsection (b)(7).--'' before ``Under''; and by striking ``(b)(6), if'' 
and inserting ``(b)(7), if''; in Note 10, as redesignated by this 
amendment, by inserting ``Prior Felony Convictions.--'' before ``For 
purposes of''; in Note 11, as redesignated by this amendment, by 
inserting ``Upward Departure Provisions.--'' before ``An upward 
departure''; in Note 12, as redesignated by this amendment, by 
inserting ``Armed Career Criminal.--'' before ``A defendant who''; and 
by inserting at the end the following:
    ``13. Application of Subsection (b)(5).--
    (A) In General.--Subsection (b)(5) applies, regardless of whether 
anything of value was exchanged, if the defendant--
    (i) Transported, transferred, or otherwise disposed of two or more 
firearms to another individual, or received two or more firearms with 
the intent to transport, transfer, or otherwise dispose of firearms to 
another individual; and
    (ii) Knew or had reason to believe that such conduct would result 
in the transport, transfer, or disposal of a firearm to an individual--
    (I) Whose possession or receipt of the firearm would be unlawful; 
or
    (II) Who intended to use or dispose of the firearm unlawfully.
    (B) Definitions.--For purposes of this subsection:
    `Individual whose possession or receipt of the firearm would be 
unlawful' means an individual who (i) has a prior conviction for a 
crime of violence, a controlled substance offense, or a misdemeanor 
crime of domestic violence; or (ii) at the time of the offense was 
under a criminal justice sentence, including probation, parole, 
supervised release, imprisonment, work release, or escape status. 
`Crime of violence' and `controlled substance offense' have the meaning 
given those terms in Sec.  4B1.2 (Definitions of Terms Used in Section 
4B1.1). `Misdemeanor crime of domestic violence' has the meaning given 
that term in 18 U.S.C. 921(a)(33)(A).
    The term `defendant', consistent with Sec.  1B1.3 (Relevant 
Conduct), 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.
    (C) Upward Departure Provision.--If the defendant trafficked 
substantially more than 25 firearms, an upward departure may be 
warranted.
    (D) Interaction with Other Subsections.--In a case in which three 
or more firearms were both possessed and trafficked, apply both 
subsections (b)(1) and (b)(5). If the defendant used or transferred one 
of such firearms in connection with another felony offense (i.e., an 
offense other than a firearms possession or trafficking offense) an 
enhancement under subsection (b)(6) also would apply.
    14. `In Connection With'.--
    (A) In General.--Subsections (b)(6) and (c)(1) apply if the firearm 
or ammunition facilitated, or had the potential of facilitating, 
another felony offense or another offense, respectively.
    (B) Application When Other Offense is Burglary or Drug Offense.--
Subsections (b)(6) and (c)(1) apply (i) in a case in which a defendant 
who, during the course of a burglary, finds and takes a firearm, even 
if the defendant did not engage in any other conduct with that firearm 
during the course of the burglary; and (ii) in the case of a drug 
trafficking offense in which a firearm is found in close proximity to 
drugs, drug-manufacturing materials, or drug paraphernalia. In these 
cases, application of subsections (b)(1) and (c)(1) is warranted 
because the presence of the firearm has the potential of facilitating 
another felony offense or another offense, respectively.
    (C) Definitions.--
    `Another felony offense', for purposes of subsection (b)(6), 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, regardless of whether a criminal 
charge was brought, or a conviction obtained.
    (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.''.
    Section 5K2.17 is amended to read as follows:
``Sec.  5K2.17. Semiautomatic Firearms Capable of Accepting Large 
Capacity Magazine (Policy Statement)
    If the defendant possessed a semiautomatic firearm capable of 
accepting a large capacity magazine in connection with a crime of 
violence or controlled substance offense, an upward departure may be 
warranted. A 'semiautomatic firearm capable of accepting a large 
capacity magazine' means a semiautomatic firearm that has the ability 
to fire many rounds without reloading because at the time of the 
offense (A) the firearm had attached to it a magazine or similar device 
that could accept more than 15 rounds of ammunition; or (B) a magazine 
or similar device that could accept more then 15 rounds of ammunition 
was in close proximity to the firearm. The extent of any increase 
should depend upon the degree to which the nature of the weapon 
increased the likelihood of death or injury in the circumstances of the 
particular case.''.
    Reason for Amendment: This four part amendment addresses various 
issues pertaining to the primary firearms guideline, Sec.  2K2.1 
(Unlawful Receipt, Possession, or Transportation of Firearms or 
Ammunition; Prohibited Transactions Involving Firearms or Ammunition). 
First, the amendment modifies four base offense levels that provide 
enhanced penalties for offenses involving a firearm described in 18 
U.S.C. 921(a)(30), the semiautomatic assault weapon ban that expired on 
September 13, 2004. The Commission received information regarding 
inconsistent application as to whether the enhanced base offense levels 
apply to these types of firearms in light of the ban's expiration. The 
amendment deletes the reference to 18 U.S.C. 921(a)(30) at Sec.  
2K2.1(a)(1), (a)(3), and (a)(4) and replaces the reference with the 
term, ``a semiautomatic firearm capable of accepting a large capacity 
magazine,'' which is defined in Application Note 2.

[[Page 28071]]

    While the amendment deletes the reference to 18 U.S.C. 921(a)(30) 
at 2K2.1(a)(5), it does not include the phrase ``a semiautomatic 
firearm that is capable of accepting a large capacity magazine'' in 
this subsection because a defendant sentenced under subsection (a)(5) 
does not have the same ``prohibited person'' status as a defendant 
sentenced under subsections (a)(1), (a)(3), or (a)(4).
    The amendment also amends Sec.  5K2.17 (High-Capacity, 
Semiautomatic Firearms) in a manner consistent with Sec.  2K2.1, as 
amended, except that it excludes the language pertaining to .22 caliber 
rim fire ammunition in order to remain in conformity with a prior 
congressional directive. As amended, Sec.  5K2.17 (Semiautomatic 
Firearms Capable of Accepting Large Capacity Magazine) provides that an 
upward departure may be warranted if a defendant possesses a 
semiautomatic firearm capable of accepting a large capacity magazine in 
connection with a crime of violence or controlled substance offense.
    Second, the amendment provides a 4-level enhancement at Sec.  
2K2.1(b)(5) if the defendant engaged in the trafficking of firearms. 
The definition of trafficking encompasses transporting, transferring, 
or otherwise disposing of two or more firearms, or receipt of two or 
more firearms with the intent to transport, transfer, or otherwise 
dispose of firearms to another individual. The definition also requires 
that the defendant know or have reason to believe that such conduct 
would result in the transport, transfer, or disposal of a firearm to an 
individual whose possession or receipt would be unlawful or who 
intended to use or dispose of the firearm unlawfully. With respect to 
an individual whose possession would be unlawful, the amendment 
includes individuals who previously have been convicted of a crime of 
violence, a controlled substance offense, or a misdemeanor crime of 
domestic violence, or who at the time of the offense were under a 
criminal justice sentence, including probation, parole, supervised 
release, imprisonment, work release, or escape status. Additionally, 
the definition provides that the enhancement applies regardless of 
whether anything of value was exchanged.
    Third, the amendment modifies Sec.  2K2.1(b)(4) to increase 
penalties for offenses involving altered or obliterated serial numbers. 
Prior to this amendment, Sec.  2K2.1(b)(4) provided a 2-level 
enhancement if the offense involved either a stolen firearm or a 
firearm with an altered or obliterated serial number. The amendment 
provides a 4-level enhancement for offenses involving altered or 
obliterated serial numbers. This increase reflects both the difficulty 
in tracing firearms with altered or obliterated serial numbers, and the 
increased market for these types of weapons.
    Fourth, the amendment addresses a circuit conflict pertaining to 
the application of current Sec.  2K2.1(b)(5) (re-designated by this 
amendment as Sec.  2K2.1(b)(6)) and (c)(1)), specifically with respect 
to the use of a firearm ``in connection with'' burglary and drug 
offenses. The amendment, adopting the language from Smith v. United 
States, 508 U.S. 223 (1993), provides at Application Note 14 that the 
provisions apply if the firearm facilitated, or had the potential of 
facilitating, another felony offense or another offense, respectively. 
Furthermore, the amendment provides that in burglary offenses, these 
provisions apply to a defendant who takes a firearm during the course 
of the burglary, even if the defendant did not engage in any other 
conduct with that firearm during the course of the burglary. In 
addition, the provisions apply in the case of a drug trafficking 
offense in which a firearm is found in close proximity to drugs, drug 
manufacturing materials, or drug paraphernalia. The Commission 
determined that application of these provisions is warranted in these 
cases because of the potential that the presence of the firearm has for 
facilitating another felony offense or another offense.
    10. Amendment: 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 ``Base Offense 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);''.
    Section 2L1.1 is amended by redesignating subsections (b)(4) 
through (b)(6) as subsections (b)(5) through (b)(7), respectively; and 
by inserting after subsection (b)(3) the following:
    ``(4) If the defendant smuggled, transported, or harbored a minor 
who was unaccompanied by the minor's parent or grandparent, increase by 
2 levels.''.
    Subsection (b)(7), as redesignated by this amendment, is amended by 
striking ``8 levels'' and inserting ``10 levels''; and by redesignating 
subdivisions (1) through (4) as subdivisions (A) through (D), 
respectively.
    Section 2L1.1(b) is amended by adding at the end the following:
    ``(8) If an alien was involuntarily detained through coercion or 
threat, or in connection with a demand for payment, (A) after the alien 
was smuggled into the United States; or (B) while the alien was 
transported or harbored in the United States, increase by 2 levels. If 
the resulting offense level is less than level 18, increase to level 
18.''.
    Subsection 2L1.1(c)(1) is amended to read as follows:
    ``(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.''.
    The Commentary to Sec.  2L1.1 captioned ``Application Notes'' is 
amended in Note 1 by striking ``For purposes of this guideline--'' and 
inserting ``Definitions.--For purposes of this guideline:''; and by 
adding at the end the following:
    `` `Minor' means an individual who had not attained the age of 16 
years.
    `Parent' means (A) a natural mother or father; (B) a stepmother or 
stepfather; or (C) an adoptive mother or father.''.
    The Commentary to Sec.  2L1.1 captioned ``Application Notes'' is 
amended in Note 2 by inserting ``Interaction with Sec.  3B1.1.--'' 
before ``For''; and by adding at the end the following:
    ``In large scale smuggling, transporting, or harboring cases, an 
additional adjustment from Sec.  3B1.1 typically will apply.''.
    The Commentary to Sec.  2L1.1 captioned ``Application Notes'' is 
amended by striking Notes 3 and 4 and inserting the following:
    ``3. Upward Departure Provisions.--An upward departure may be 
warranted in any of the following cases:
    (A) The defendant smuggled, transported, or harbored an alien 
knowing that the alien intended to enter the United States to engage in 
subversive activity, drug trafficking, or other serious criminal 
behavior.
    (B) The defendant smuggled, transported, or harbored an alien the 
defendant knew was inadmissible for reasons of security and related 
grounds, as set forth under 8 U.S.C. 1182(a)(3).
    (C) The offense involved substantially more than 100 aliens.'';

by redesignating Notes 5 and 6 as Notes 4 and 5, respectively; in Note 
4, as redesignated by this amendment, by inserting ``Prior Convictions 
Under Subsection (b)(3).--'' before ``Prior felony''; and in Note 5, as 
redesignated by this amendment, by inserting ``Application of 
Subsection (b)(6).--''

[[Page 28072]]

before ``Reckless''; by striking ``(b)(5)'' each place it appears and 
inserting ``(b)(6)''; and by striking ``(b)(4)'' and inserting 
``(b)(5)''.
    The Commentary to Sec.  2L1.1 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``6. Inapplicability of Sec.  3A1.3.--If an enhancement under 
subsection (b)(8) applies, do not apply Sec.  3A1.3 (Restraint of 
Victim).''.
    The Commentary to Sec.  2L1.1 captioned ``Background'' is amended 
by striking the last sentence.
    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''.
    Reason for Amendment: This two-part amendment addresses various 
issues pertaining to Sec. Sec.  2L1.1 (Smuggling, Transporting, or 
Harboring an Unlawful Alien), 2L2.1 (Trafficking in a Document Relating 
to Naturalization, Citizenship, or Legal Resident Status, or a United 
States Passport; False Statement in Respect to the Citizenship or 
Immigration Status of Another; Fraudulent Marriage to Assist Alien to 
Evade Immigration Law), and 2L2.2 (Fraudulently Acquiring Documents 
Relating to Naturalization, Citizenship, or Legal Resident Status for 
Own Use; False Personation or Fraudulent Marriage by Alien to Evade 
Immigration Law; Fraudulently Acquiring or Improperly Using a United 
States Passport).
    The first part of this amendment modifies Sec.  2L1.1. First, this 
amendment addresses national security concerns pertaining to the 
smuggling of illegal aliens. Specifically, a new base offense level of 
25 at Sec.  2L1.1(a)(1) provides increased punishment for defendants 
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). To further address concerns related to national security, 
an application note provides that an upward departure may be warranted 
if the defendant had specific knowledge that the alien the defendant 
smuggled, transported, or harbored was inadmissible for reasons of 
security and related grounds, as set forth in 8 U.S.C. 1182(a)(3). This 
upward departure note applies regardless of whether the defendant is 
convicted of 8 U.S.C. 1327.
    Second, the amendment provides a two-level enhancement for a case 
in which the defendant smuggled, transported, or harbored a minor 
unaccompanied by the minor's parent or grandparent. This enhancement 
addresses concerns regarding the increased risk involved when 
unaccompanied minors are smuggled into, or harbored or transported 
within, the United States. Application Note 1 defines ``minor'' as ``an 
individual who had not attained the age of 16 years'' and defines 
``parent'' as ``(A) a natural mother or father; (B) a stepmother or 
stepfather; or (C) an adoptive mother or father.''
    Third, the amendment makes two changes with respect to offenses 
involving death. First, the amendment increases the enhancement from 8 
levels to 10 levels if any person died as a result of the offense. 
Additionally, the cross reference at Sec.  2L1.1(c)(1) is expanded to 
cover homicides other than murder. This amendment ensures that any 
offense involving the death of an alien will be sentenced under the 
guideline appropriate for the particular type of homicide involved if 
the resulting offense level is greater than the offense level 
determined under Sec.  2L1.1.
    Fourth, the amendment adds a two-level enhancement and a minimum 
offense level of 18 in a case in which an alien was involuntarily 
detained through coercion or threat, or in connection with a demand for 
payment, after the alien was smuggled into the United States, or while 
the alien was transported or harbored in the United States. This 
conduct may not be covered by Sec.  3A1.3 (Restraint of Victim) because 
an illegal alien, as a participant in the offense, may not be 
considered a ``victim'' for purposes of that adjustment. Additionally, 
application of Sec.  3A1.3 requires ``physical restraint,'' as that 
term is defined in Sec.  1B1.1, and the involuntary detainment involved 
in offenses sentenced under Sec.  2L1.1 may not involve physical 
restraint. Finally, the amendment provides an application note, as a 
corollary to Application Note 2 in Sec.  3A1.3, that instructs the 
court not to apply Sec.  3A1.3 if the involuntary detainment 
enhancement applies.
    The second part of the amendment modifies Sec. Sec.  2L2.1 and 
2L2.2. First, this part of the amendment adds a new specific offense 
characteristic at Sec.  2L2.1(b)(5)(A) that provides a four-level 
enhancement 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 
(see USSC Guidelines Manual Supplement to Appendix C, Amendment 671). 
The addition of this specific offense characteristic to Sec.  2L2.1 
promotes proportionality between the document fraud guidelines, 
Sec. Sec.  2L2.1 and 2L2.2.
    Second, the amendment provides, at Sec.  2L2.1(b)(5)(B) and Sec.  
2L2.2(b)(3)(B), a two-level enhancement if the defendant fraudulently 
obtained or used a foreign passport. This modification addresses 
concern regarding the threat to the security of the United States in 
document fraud offenses involving foreign passports.
    11. Amendment: Section 3C1.1 is amended by striking ``during the 
course of'' and inserting ``with respect to''.
    The Commentary to Sec.  3C1.1 captioned ``Application Notes'' is 
amended in Note 1 by inserting ``In General.--'' before ``This 
adjustment''; by striking ``during the course of'' and inserting ``with 
respect to''; and by inserting at the end the following:
    ``Obstructive conduct that occurred prior to the start of the 
investigation of the instant offense of conviction may be covered by 
this guideline if the conduct was purposefully calculated, and likely, 
to thwart the investigation or prosecution of the offense of 
conviction.''.
    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 5 by 
inserting ``Examples of Conduct Ordinarily 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 Under Sec.  
3D1.2(c).--'' before ``If the defendant''; and in Note 9 by inserting 
``Accountability for Sec.  1B1.3(a)(1)(A) Conduct.--'' before ``Under 
this section''.
    The Commentary to Sec.  3C1.1 captioned ``Application Notes'' is 
amended in Note 4 by inserting ``Examples of Covered Conduct.--'' 
before ``The following''; in subdivision (b) by inserting ``, including 
during the course of a civil proceeding if such perjury pertains to 
conduct that forms the basis of the offense of conviction'' after 
``suborn perjury''; by striking the period at the end of subdivision 
(j) and inserting a semi-colon; and by adding at the end the following 
subdivision:
    ``(k) threatening the victim of the offense in an attempt to 
prevent the victim from reporting the conduct constituting the offense 
of conviction.''.
    Reason for Amendment: This amendment addresses a circuit conflict

[[Page 28073]]

regarding the issue of whether pre-investigative conduct can form the 
basis of an adjustment under Sec.  3C1.1 (Obstructing or Impeding the 
Administration of Justice). The First, Second, Seventh, Tenth, and 
District of Columbia Circuits have held that pre-investigation conduct 
can be used to support an obstruction adjustment under Sec.  3C1.1. 
Compare 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 fact that there was no pending Federal criminal investigation at 
the time of the obstruction did not disqualify a defendant from an 
enhancement when there was a `close connection between the obstructive 
conduct and the offense of conviction.' ''(quoting United States v. 
Emery, 991 F.2d 907, 911(1st Cir. 1992))); United States v. Fiore, 381 
F.3d 89, 94 (2nd Cir. 2004)(defendant's perjury in an SEC civil 
investigation into defendant's securities fraud constituted obstruction 
of justice of the criminal investigation of the same ``precise 
conduct'' for which defendant was criminally convicted, even though the 
perjury occurred before the criminal investigation commenced); United 
States v. Snyder, 189 F.3d 640, 649 (7th Cir. 1999)(holding the 
adjustment 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 because 
the defendant knew an investigation would be conducted and understood 
the importance of the tape to that investigation); and 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.''), with 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); United States v. DeGeorge, 380 F.3d 1203,1222 (9th Cir. 
2004)(perjury during a civil trial as part of a scheme to defraud was 
not an obstruction of justice of a criminal investigation of the 
fraudulent scheme because the criminal investigation had not yet begun 
at the time the defendant perjured himself); 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 amendment, which adopts the majority view, permits application 
of the guideline to obstructive conduct that occurs prior to the start 
of the investigation of the instant offense of conviction by allowing 
the court to consider such conduct if it was purposefully calculated, 
and likely, to thwart the investigation or prosecution of the offense 
of conviction. The amendment also adds, as examples of covered conduct 
in Application Note 4, (A) perjury that occurs during the course of a 
civil proceeding if such perjury pertains to the conduct that forms the 
basis of the offense of conviction; and (B) conduct involving threats 
to the victim of the offense if those threats were intended to prevent 
the victim from reporting the conduct constituting the offense of 
conviction. Finally, the amendment changes language in Sec.  3C1.1(A) 
from ``during the course of'' to ``with respect to.''
    12. 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).''.
    Reason for Amendment: This amendment creates a new policy statement 
at Sec.  6A1.5 (Crime Victims' Rights) in response to the Justice for 
All Act of 2004, Public Law 108-405, which sets forth at 18 U.S.C. 3771 
various rights for crime victims during the criminal justice process, 
including at subsection (a)(4) the right to be ``reasonably heard at 
any public proceeding * * * involving release, plea, sentencing, or any 
parole proceeding.'' The amendment also changes the title of Chapter 
Six to reflect the addition of the policy statement.
    13. Amendment: The Commentary to Sec.  8C2.5 captioned 
``Application Notes'' is amended in Note 12 by striking the last 
sentence.
    Reason for Amendment: This amendment deletes the last sentence of 
Application Note 12 to Sec.  8C2.5 (Culpability Score), which stated 
that ``[w]aiver of attorney-client privilege and of work product 
protections is not a prerequisite to a reduction in culpability score . 
. . unless such waiver is necessary in order to provide timely and 
thorough disclosure of all pertinent information known to the 
organization.'' The Commission added this sentence to address some 
concerns regarding the relationship between waivers and Sec.  8C2.5(g), 
and at the time stated that ``[t]he Commission expects that such 
waivers will be required on a limited basis.'' See Supplement to 
Appendix C (Amendment 673, effective November 1, 2004). Subsequently, 
the Commission received public comment and heard testimony at public 
hearings on November 15, 2005, and March 15, 2006, that the sentence at 
issue could be misinterpreted to encourage waivers.

 [FR Doc. E6-7344 Filed 5-12-06; 8:45 am]
BILLING CODE 2211-01-P