[Federal Register Volume 72, Number 19 (Tuesday, January 30, 2007)]
[Notices]
[Pages 4372-4398]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-1349]



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Part III





United States Sentencing Commission





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Notice of Proposed Amendments to Sentencing Guidelines, Policy 
Statements, and Commentary. Request for Public Comment, Including 
Public Comment Regarding Retroactive Application of Any of the Proposed 
Amendments. Notice of Public Hearing; Notice

  Federal Register / Vol. 72, No. 19 / Tuesday, January 30, 2007 / 
Notices  

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UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for United States Courts

AGENCY: United States Sentencing Commission.

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

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SUMMARY: Pursuant to section 994(a), (o), and (p) of title 28, United 
States Code, the United States Sentencing Commission is considering 
promulgating certain amendments to the sentencing guidelines, policy 
statements, and commentary. This notice sets forth the proposed 
amendments and, for each proposed amendment, a synopsis of the issues 
addressed by that amendment. This notice also provides multiple issues 
for comment, some of which are contained within proposed amendments.
    The specific proposed amendments and issues for comment in this 
notice are as follows: (A) Proposed amendment to 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), 
2A2.3 (Minor Assault), 2A2.4 (Obstructing or Impeding Officers), 2A5.2 
(Interference with Flight Crew Member or Flight Attendant; Interference 
with Dispatch, Operation, or Maintenance of Mass Transportation Vehicle 
or a Ferry), 2A6.1 (Threatening or Harrassing Communications; Hoaxes), 
2B1.1 (Fraud, Theft, and Property Damage), 2C1.1 (Offering, Giving, 
Soliciting, or Receiving a Bribe; Extortion Under Color of Official 
Right; Fraud Involving the Deprivation of the Intangible Right to 
Honest Services of Public Officials; Conspiracy to Defraud by 
Interference with Governmental Functions), 2B2.3 (Trespass), 2K1.4 
(Arson; Property Damage by Use of Explosives), 2M6.1 (Nuclear, 
Biological, and Chemical Weapons, and Other Weapons of Mass 
Destruction), 2Q1.1 (Knowing Endangerment Resulting From Mishandling 
Hazardous or Toxic Substances, Pesticides or Other Pollutants), 2X1.1 
(Attempt, Solicitation, or Conspiracy (Not Covered by a Specific 
Offense Guideline)), 2X5.2 (Class A Misdemeanor Offenses (Not Covered 
by a Specific Offense Guideline)), Appendix A, and issues for comment 
regarding implementation of the USA PATRIOT Improvement and 
Reauthorization Act of 2005, Pub. L. 109-177 (hereinafter the ``PATRIOT 
Act'') and the Safe, Accountable, Flexible, Efficient Transportation 
Equity Act: A Legacy for Users, Pub. L. 109-59, as these laws pertain 
to transportation offenses; (B) proposed amendment to Chapter Two, 
Parts A and G, Sec. Sec.  2A3.1 (Criminal Sexual Abuse; Attempt to 
Commit Criminal Sexual Abuse), 2A3.3 (Criminal Sexual Abuse of a Ward 
or Attempt to Commit Such Acts), 2A3.4 (Abusive Sexual Contact or 
Attempt to Commit Abusive Sexual Contact), 2G1.1 (Promoting a 
Commercial Sex Act or Prohibited Sexual Conduct with an Individual 
Other than a Minor), 2G1.3 (Promoting a Commercial Sex Act or 
Prohibited Sexual Conduct with a Minor; Transportation of Minors to 
Engage in a Commercial Sex Act or Prohibited Sexual Conduct), 2G2.5 
(Recordkeeping Offenses Involving the Production of Sexually Explicit 
Materials; Failure to Provide Required Marks in Commercial Electronic 
Email), 2G3.1 (Importing, Mailing, or Transporting Obscene Matter; 
Transferring Obscene Matter to a Minor; Misleading Domain Names), 2H3.1 
(Interception of Communications; Eavesdropping; Disclosure of Tax 
Return Information), 2J1.2 (Obstruction of Justice), 4B1.5 (Repeat and 
Dangerous Sex Offender Against Minors), 5B1.3 (Conditions of 
Probation), 5D1.2 (Term of Supervised Release), 5D1.3 (Conditions of 
Supervised Release), Appendix A, and issues for comment regarding 
implementation of the Adam Walsh Child Protection and Safety Act of 
2006, Pub. L. 109-248 (hereinafter the ``Adam Walsh Act''); (C) 
proposed amendment to re-promulgate as a permanent amendment the 
temporary, emergency amendment to Sec.  2B5.3 (Criminal Infringement of 
Copyright or Trademark), effective September 12, 2006 (see USSG 
Supplement to Appendix C (Amendment 682)), and issues for comment 
regarding implementation of the Stop Counterfeiting in Manufactured 
Goods Act, Pub. L. 109-181; (D) proposed amendment to Chapter Two, 
Parts D and X, Sec. Sec.  2A1.1, 2A1.2, 2B1.1, 2B1.5 (Theft of, Damage 
to, or Destruction of Cultural Heritage Resources; Unlawful Sale, 
Purchase, Exchange, Transportation, or Receipt of Cultural Heritage 
Resources), 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or 
Trafficking (Including Possession with Intent to Commit These 
Offenses); Attempt or Conspiracy), 2E4.1 (Unlawful Conduct Relating to 
Contraband Cigarettes), 2K1.3 (Unlawful Receipt, Possession, or 
Transportation of Explosive Materials; Prohibited Transactions 
Involving Explosive Materials), 2K1.4, 2M5.3 (Providing Material 
Support or Resources to Designated Foreign Terrorism Organizations of 
For a Terrorist Purpose), 2M6.1, 2Q2.1 (Offenses Involving Fish, 
Wildlife, and Plants), 2X1.1, 2X2.1 (Aiding and Abetting), 2X3.1 
(Accessory After the Fact), Appendix A, and issues for comment 
regarding implementation of the PATRIOT Act and the Department of 
Homeland Security Appropriations Act, 2007, Pub. L. 109-295, as these 
laws pertain to terrorism offenses and border protection; (E) proposed 
amendment to Sec. Sec.  2D1.1, 2D1.11 (Unlawfully Distributing, 
Importing, Exporting, or Possessing a Listed Chemical; Attempt or 
Conspiracy), Appendix A (Statutory Index), and issues for comment 
regarding implementation of the PATRIOT Act and the Adam Walsh Act as 
these laws pertain to drug offenses; (F) proposed amendment to 
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; 
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); (G)(1) 
proposed amendment to Sec.  2B2.3 (Trespass) to implement the Respect 
for America's Fallen Heroes Act, Pub. L. 109-228; (2) proposed 
amendment to Sec.  2H3.1 to implement the Violence Against Women and 
Department of Justice Reauthorization Act of 2005, Pub. L. 109-162; and 
(3) issue for comment regarding implementation of the SAFE Port Act, 
Pub. L. 109-347; (H) proposed amendment to (1) Sec. Sec.  2B1.1, 
2D1.11, 2K2.1 (Unlawful Receipt, Possession, or Transportation of 
Firearms or Ammunition; Prohibited Transactions Involving Firearms or 
Ammunition), and 2L1.1 to correct typographical errors; and (2) Chapter 
Three, Part D (Introductory Commentary) and Sec.  3D1.1 (Procedure for 
Determining Offense Level on Multiple Counts) to address cases 
involving multiple counts contained in multiple indictments; (I)

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issue for comment regarding Sec.  1B1.13 (Reduction in Term of 
Imprisonment as a Result of Motion by Director of Bureau of Prisons); 
(J) issues for comment regarding application of certain criminal 
history rules under Sec.  4A1.2 (Definitions and Instructions for 
Computing Criminal History); (K) issue for comment regarding 
implementation of section 4 of the Telephone Records and Privacy 
Protection Act of 2006, Pub. L. 109-476, which provides the Commission 
with emergency amendment authority to amend the guidelines applicable 
to persons convicted of an offense under 18 U.S.C. Sec.  1039; and (L) 
issue for comment regarding federal cocaine sentencing policy.

DATES: (A) Proposed Amendments.--Written public comment regarding the 
proposed amendments and issues for comment set forth in this notice, 
including public comment regarding retroactive application of any of 
the proposed amendments, should be received by the Commission not later 
than March 30, 2007.
    (B) Public Hearing.--The Commission will be scheduling a public 
hearing on its proposed amendments. Further information regarding the 
public hearing, including requirements for testifying and providing 
written testimony, as well as the date of the hearing, will be provided 
by the Commission on its Web site at www.ussc.gov.

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?
    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 in 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 may be accessed through the Commission's Web 
site at www.ussc.gov.

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

Ricardo H. Hinojosa,
Chair.

1. Transportation

    Synopsis of Proposed Amendment: This proposed amendment implements 
a number of provisions of the USA PATRIOT Improvement and 
Reauthorization Act of 2005, Pub. L. 109-177 (hereinafter ``PATRIOT 
Act'') and the Safe, Accountable, Flexible, Efficient Transportation 
Equity Act: A Legacy for Users, Pub. L. 109-59 (hereinafter ``SAFETEA-
LU''). The proposed amendments also provide a corresponding amendment 
to Appendix A (Statutory Index). Specifically:
    (A) Section 110 of the PATRIOT Act strikes 18 U.S.C. Sec. Sec.  
1992 and 1993 and creates a new section 1992 (Terrorist attacks and 
other violence against railroad carriers and against mass 
transportation systems on land, on water, or through the air). The 
legislation creates a statutory maximum term of imprisonment of 20 
years and includes a penalty of imprisonment for any years or life or, 
if the offense resulted in the death of any person, the defendant may 
be sentenced to death. There are exceptions to the life and death 
sentences for cases of surveillance, conveying false information, or 
attempting, threatening, or conspiring to engage in any violation under 
this section. The statute also contains aggravated offenses. First, a 
sentence of life or death may be imposed when the offense involved 
railroad on-track equipment or a mass transportation vehicle carrying a 
passenger or employee, or carrying hazardous material, or both. Second, 
a life or death sentence may be given if the offense was committed with 
the intent to endanger the safety of any person, or with a reckless 
disregard for the safety of any person, when the railroad on-track 
equipment or mass transportation vehicle was carrying a defined 
hazardous material at the time of the offense.
    The proposed amendment updates all references to 18 U.S.C. 1992 and 
eliminates all references to 18 U.S.C. 1993. The proposed amendment 
also adds 18 U.S.C. 1992 to the referenced statutory provisions in 
Sec. Sec.  2A1.1 (First Degree Murder), 2A2.1 (Assault with Intent to 
Commit Murder; Attempted Murder), and 2A5.2 (Interference with Flight 
Crew Member or Flight Attendant; Interference with Dispatch, Operation, 
or Maintenance of Mass Transportation Vehicle or a Ferry). 
Additionally, the amendment adjusts the definition of ``mass 
transportation'' in Sec. Sec.  2A1.4, 2A5.2, and 2K1.4 (Arson; Property 
Damage by Use of Explosives) to reflect the new defining section, 18 
U.S.C. 1992(d)(7). Also proposed is the addition of ``Navigation'' to 
the title and text of Sec.  2A5.2 to better reflect the full scope of 
the newly created 18 U.S.C. 1992.
    (B) Section 302 of the PATRIOT Act increases the scope of 18 U.S.C. 
1036 (Entry by false pretenses to any real property, vessel, or 
aircraft of the United States or secure area of any airport) by

[[Page 4374]]

adding to the areas protected from illegal entry under this title 
secure and restricted areas of a seaport. Section 302 also increases 
the statutory maximum penalty from five years to ten years.
    The proposed amendment refers this offense to Sec.  2B2.3(b)(1) and 
adds seaports to the list of protected areas warranting a two-level 
enhancement. The amendment also adds a definition for ``seaport'', as 
one does not currently exist in the guidelines.
    (C) Section 303 of the PATRIOT Act adds a new offense at 18 U.S.C. 
2237 (Criminal sanctions for failure to heave to, obstruction of 
boarding, or providing false information). This new statute makes it a 
crime to refuse to stop a vessel in violation of a federal law 
enforcement officer's order or to provide materially false information 
to a federal law enforcement officer during a boarding of a vessel.
    The proposed amendment references this new offense to Sec. Sec.  
2A2.4 (Obstructing or Impeding Officers) and 2B1.1 (Fraud, Theft, and 
Property Damage).
    (D) Section 306 of the PATRIOT Act provides new offenses in 18 
U.S.C. 2291 (Destruction of vessel or maritime facility) and 2292 
(Imparting or conveying false information). Section 2291 of title 18, 
United States Code, covers the destruction of vessels and maritime 
facilities and creates a statutory maximum term of imprisonment of 20 
years. If the conduct under this section involves a vessel carrying 
nuclear or radioactive waste, a statutory maximum life sentence 
applies, and if death results, a life or death sentence is possible. 
Section 2292 of title 18, United States Code, prohibits providing false 
information regarding an attempt or alleged attempt to commit a crime 
and provides a statutory maximum sentence of five years.
    The proposed amendment references 18 U.S.C. 2291 to 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), 
2A2.3 (Minor Assault), 2A6.1 (Threatening or Harrassing Communications; 
Hoaxes), 2B1.1 (Fraud, Theft, and Property Damage), 2K1.4 (Arson; 
Property Damage by Use of Explosives) and 2M6.1 (Nuclear, Biological, 
and Chemical Weapons, and Other Weapons of Mass Destruction). Section 
2292 of title 18, United States Code, is referenced to Sec.  2A6.1.
    (E) Section 307(c) of the PATRIOT Act directs the Commission to 
review the guidelines to determine whether a sentencing enhancement is 
appropriate for any offense under sections 659 or 2311 of title 18, 
United States Code.
    The proposed amendment provides two options to respond to this 
directive. Option 1 amends Sec.  2B1.1(b)(4) to provide an alternative 
enhancement if the defendant was convicted under 18 U.S.C. 659. An 
issue for comment also requests input regarding whether any such 
enhancement should include convictions under 18 U.S.C. 2312 and 2313. 
Option 2 responds to the directive by revising Sec.  2B1.1(b)(11). 
Currently this section provides a minimum offense level of 14 for 
offenses involving an organized scheme to steal vehicles or vehicle 
parts. The proposed amendment adds convictions under 18 U.S.C. 659 to 
this section and also provides a two-level increase for all cases 
covered under the subsection.
    (F) Section 308 of the PATRIOT Act increases the statutory maximum 
penalties for 18 U.S.C. 2199 (Stowaways on vessels or aircraft). Absent 
any aggravating factors, the statutory maximum for offenses is 
increased from one year to five years. Section 308 adds a statutory 
maximum of 20 years if a person acts with the intent to commit serious 
bodily injury and serious bodily injury occurs. For offenses involving 
the intent to kill and death occurs, section 308 also adds a penalty of 
imprisonment for any term of years, including life or death.
    The proposed amendment references 18 U.S.C. 2199 to 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 2A2.3 (Minor Assault).
    (G) Section 4210 of SAFETEA-LU creates a new offense at 49 U.S.C. 
14915 for failure to release household goods with a statutory maximum 
of two years.
    The proposed amendment references this section to Sec.  2B1.1 as it 
is the most analogous guideline.
    (H) Section 4102(b) of SAFETEA-LU creates a new criminal violation 
for violating a commercial motor vehicle's out-of-service order. The 
offense carries a statutory maximum of one year.
    The proposed amendment references this section to Sec.  2X5.2 
(Class A Misdemeanor (Not Covered by Another Specific Offense 
Guideline)).
    The proposed amendment also includes five issues for comment 
pertaining to the following:
    (1) Section 7121 of SAFETEA-LU creates a new aggravated felony 
under 49 U.S.C. 5124 that carries a statutory maximum of 10 years when 
conduct under the section results in the release of a hazardous 
material that causes bodily injury or death. Appendix A (Statutory 
Index) currently references 49 U.S.C. 5124 to Sec.  2Q1.2 (Mishandling 
of Hazardous or Toxic Substances or Pesticides; Recordkeeping, 
Tampering, and Falsification; Unlawfully Transporting Hazardous 
Materials in Commerce). An issue for comment asks whether penalties 
under Sec.  2Q1.2 are adequate for the new offense.
    (2) The proposed amendment adds seaports to the two-level 
enhancement in Sec.  2B2.3(b)(1). Section 2B2.3(c) also provides a 
cross reference if the offense was committed with the intent to commit 
another criminal offense. An issue for comment asks whether, as an 
alternative to the cross reference provision and as a possible means of 
simplifying this guideline, it should amend Sec.  2B2.3 (Trespass) to 
provide instead a general specific offense characteristic for any 
trespass offense that was committed with the intent to commit another 
offense.
    (3) Section 309 of the PATRIOT Act creates a new offense at 18 
U.S.C. 226 (Bribery affecting port security), making it a crime to 
knowingly, and with the intent to commit international or domestic 
terrorism, bribe a public official to affect port security. It is also 
a crime under this section to be the recipient of such a bribe in 
return for being influenced in the performance of public duties 
affecting port security with the knowledge that such influence will be 
used to commit or plan to commit an act of terrorism.
    The proposed amendment references 18 U.S.C. 226 to Sec.  2C1.1 
(Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under 
Color of Official Right; Fraud Involving the Deprivation of the 
Intangible Right to Honest Services of Public Official; Conspiracy to 
Defraud by Interference with Governmental Functions).
    An issue for comment addresses this proposed reference to Sec.  
2C1.1 as well as the operation of the cross reference in Sec.  
2C1.1(c)(1) in cases involving an intent to commit an act of 
international or domestic terrorism.
    (4) Whether the Commission should use the term ``mass 
transportation'' or ``public transportation'' in the context of Sec.  
2A5.2 and other guidelines.
    (5) The proposed amendment provides options for increasing 
penalties for offenses under 18 U.S.C. 659. An issue for comment asks 
whether the Commission also should provide similar increases for 
offenses under 18 U.S.C. 2312 (Transportation of stolen vehicles) and 
2313 (Sale or receipt of stolen vehicles).

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Proposed Amendment

    The Commentary to Sec.  2A1.1 captioned ``Statutory Provisions'' is 
amended by inserting ``1992(a)(7),'' after ``1841(a)(2)(C),''; and by 
inserting ``2199, 2291,'' after ``2118(c)(2),''.
    The Commentary to Sec.  2A1.2 captioned ``Statutory Provisions'' is 
amended by inserting ``2199, 2291,'' after ``1841(a)(2)(C),''.
    The Commentary to Sec.  2A1.3 captioned ``Statutory Provisions'' is 
amended by inserting ``2199, 2291,'' after ``1841(a)(2)(C),''.
    The Commentary to Sec.  2A1.4 captioned ``Statutory Provisions'' is 
amended by inserting ``2199, 2291,'' after ``1841(a)(2)(C),''.
    The Commentary to Sec.  2A1.4 captioned ``Application Note'' is 
amended in Note 1 by striking ``18 U.S.C. 1993(c)(5)'' and inserting 
``18 U.S.C. 1992(d)(7)''.
    The Commentary to Sec.  2A2.1 captioned ``Statutory Provisions'' is 
amended by striking ``1993(a)(6)'' and inserting ``1992(a)(7), 2199, 
2291''.
    The Commentary to Sec.  2A2.2 captioned ``Statutory Provisions'' is 
amended by striking ``1993(a)(6)'' and inserting ``1992(a)(7), 2199, 
2291''.
    The Commentary to Sec.  2A2.3 captioned ``Statutory Provisions'' is 
amended by inserting ``, 2199, 2291'' after ``1751(e)''.
    The Commentary to Sec.  2A2.4 captioned ``Statutory Provisions'' is 
amended by inserting ``2237(a)(1), (a)(2)(A),'' after ``1502,''.
    Section 2A5.2 is amended in the heading by inserting 
``Navigation,'' after ``Dispatch,''; and by striking ``or Ferry''.
    Sections 2A5.2(a)(1) and (a)(2) are amended by striking the comma 
after ``facility'' each place it appears and inserting ``or''; and by 
striking ``, or a ferry'' each place it appears.
    The Commentary to Sec.  2A5.2 captioned ``Statutory Provisions'' is 
amended by striking ``1993(a)(4), (5), (6), (b);'' and inserting 
``1992(a)(1), (a)(4), (a)(5), (a)(6);''.
    The Commentary to Sec.  2A5.2 captioned ``Application Note'' is 
amended in Note 1 in the last paragraph by striking ``18 U.S.C. 
1993(c)(5)'' and inserting ``18 U.S.C. 1992(d)(7)''.
    The Commentary to Sec.  2A6.1 captioned ``Statutory Provisions'' is 
amended by striking ``1993(a)(7), (8),'' and inserting ``1992(a)(9), 
(a)(10), 2291(a)(8), 2291(e), 2292,''.
    [Option 1 (Section 659 offenses)
    Section 2B1.1 is amended in subsection (b)(4) by inserting ``(A)'' 
before ``offense involved''; and by striking ``property, increase'' and 
inserting ``; or (B) defendant was convicted under 18 U.S.C. Sec.  
increase''.]
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended in Note 5 by inserting ``(A)'' after ``(b)(4)'' each place it 
appears.]
    [Option 2 (Section 659 offenses) Section 2B1.1 is amended in 
subsection (b)(11) by inserting ``(A)'' before ``offense involved''; 
and by striking ``, and'' and inserting ``; or (B) defendant was 
convicted under 18 U.S.C. 659, increase by 2 levels. If''.]
    The Commentary to Sec.  2B1.1 captioned ``Statutory Provisions'' is 
amended by inserting ``(a)(1), (a)(5)'' after ``1992''; by striking 
``1993(a)(1), (a)(4),''; by inserting ``2291,'' after ``2113(b),''; and 
by inserting ``14915,'' after ``49 U.S.C. Sec. Sec.  ''.
    The Commentary to Sec.  2B1.1 captioned ``Application Notes'' is 
amended by striking Note 10 and inserting the following:
    ``10. Application of Subsection (b)(11).--Subsection (b)(11) 
provides a minimum offense level in the case of an ongoing, 
sophisticated operation (such as an auto theft ring or 'chop shop') to 
steal vehicles or vehicle parts, or to receive stolen vehicles or 
vehicle parts. This subsection also applies if the defendant was 
convicted of cargo theft under 18 U.S.C. 659. For purposes of this 
subsection, 'vehicle' means motor vehicle, vessel, or aircraft.''.
    The Commentary to Sec.  2B1.1 captioned ``Background'' is amended 
in the paragraph that begins ``A minimum offense level of level 14'' by 
striking ``Therefore, the'' and inserting ``The''; by inserting ``in 
subsection (b)(11)(A)'' after ``is used''; and by adding at the end the 
following:
    ``The minimum offense level also applies to convictions under 18 
U.S.C. 659 for offenses involving cargo theft. Subsection (b)(11)(B) 
implements the directive in section 307 of Public Law 109-177.''.]
    Section 2B2.3 is amended in subsection (b)(1) by striking 
``secured'' each place it appears and inserting ``secure''; by 
redesignating subdivisions (E) and (F) as subdivisions (F) and (G), 
respectively; and by inserting the following after ``airport;'':
    ``(E) in a secure area within a seaport;''.
    The Commentary to Sec.  2B2.3 captioned ``Statutory Provisions'' is 
amended by inserting ``, 2199'' after ``1036''.
    The Commentary to Sec.  2B2.3 captioned ``Application Notes'' is 
amended in Note 1 by adding at the end the following:
    `` `Seaport' has the meaning given that term in 18 U.S.C. 26.''.
    The Commentary to Sec.  2B2.3 captioned ``Background'' is amended 
by striking ``, such as nuclear facilities,'' and inserting ``(such as 
nuclear facilities) and other locations (such as airports and 
seaports)''.
    The Commentary to Sec.  2C1.1 captioned ``Statutory Provisions'' is 
amended by inserting ``226,'' after ``Sec. Sec.  201(b)(1), (2),''.
    The Commentary to Sec.  2K1.4 captioned ``Statutory Provisions'' is 
amended by inserting ``(a)(1), (a)(2), (a)(4)'' after ``1992''; by 
striking ``1993(a)(1), (a)(2), (a)(3), (b),''; and by inserting 
``2291,'' after ``2275''.
    The Commentary to Sec.  2K1.4 captioned ``Application Notes'' is 
amended in Note 1 by striking ``18 U.S.C. 1993(c)(5)'' and inserting 
``18 U.S.C. 1992(d)(7)''.
    The Commentary to Sec.  2M6.1 captioned ``Statutory Provisions'' is 
amended by striking ``1993(a)(2), (3), (b), 2332a (only with respect to 
weapons of mass destruction as defined in 18 U.S.C. 2332a(c)(2)(B), 
(C), and (D))'' and inserting ``1992(a)(2), (a)(3), (a)(4), (b)(2), 
2291,''.
    The Commentary to Sec.  2Q1.1 captioned ``Statutory Provisions'' is 
amended by inserting ``18 U.S.C. 1992(b)(3);'' before ``33 U.S.C. 
1319(c)(3);''.
    Section 2X1.1 is amended in subsection (d)(1)(A) by inserting 
``(a)(1)-(a)(7), (a)(9), (a)(10)'' after ``1992;''; and in subsection 
(d)(1)(B) by inserting ``and'' after ``Sec.  32;''; and by striking 
``18 U.S.C. 1993; and''.
    The Commentary to Sec.  2X5.2 captioned ``Statutory Provisions'' is 
amended by inserting ``; 49 U.S.C. 31310'' after ``14133''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. 225 the following:
    ``18 U.S.C. 226 2C1.1''; by inserting after the line referenced to 
18 U.S.C. 1035 the following:

    ``18 U.S.C. 1036 2B2.3''; by striking the line referenced to 18 
U.S.C. 1992 through the end of the line referenced to 18 U.S.C. 1993(b) 
and inserting the following:

``18 U.S.C. 1992(a)(1)--2A5.2, 2B1.1, 2K1.4, 2X1.1
18 U.S.C. 1992(a)(2)--2K1.4, 2M6.1, 2X1.1
18 U.S.C. 1992(a)(3)--2M6.1, 2X1.1
18 U.S.C. 1992(a)(4)--2A5.2, 2K1.4, 2M6.1, 2X1.1
18 U.S.C. 1992(a)(5)--2A5.2, 2B1.1, 2X1.1
18 U.S.C. 1992(a)(6)--2A5.2, 2X1.1
18 U.S.C. 1992(a)(7)--2A1.1, 2A2.1, 2A2.2, 2X1.1
18 U.S.C. 1992(a)(8)--2X1.1
18 U.S.C. 1992(a)(9)--2A6.1, 2X1.1
18 U.S.C. 1992(a)(10)--2A6.1, 2X1.1'';

in the line referenced to 18 U.S.C. 2199 by inserting ``2A1.1, 2A1.2, 
2A1.3,

[[Page 4376]]

2A1.4, 2A2.1, 2A2.2, 2A2.3,'' before ``2B1.1''; by inserting after the 
line referenced to 18 U.S.C. 2233 the following:

``18 U.S.C. 2237(a)(1), (a)(2)(A)--2A2.4
18 U.S.C. 2237(a)(2)(B)--2B1.1'';

by inserting after the line referenced to 18 U.S.C. Sec.  2281 the 
following:

``18 U.S.C. 2291--2A1.1, 2A1.2, 2A1.3, 2A1.4, 2A2.1, 2A2.2, 2A2.3, 
2A6.1, 2B1.1, 2K1.4, 2M6.1
18 U.S.C. 2292--2A6.1'';

by inserting after the line referenced to 49 U.S.C. 14912'' the 
following:

``49 U.S.C. 14915--2B1.1''; and

by inserting after the line referenced to 49 U.S.C. 30170'' the 
following:

``49 U.S.C. 31310--2X5.2''.

Issues for Comment

    1. The SAFETEA-LU Act, Pub. L. 109-59, amended 49 U.S.C. 5124 to 
provide a new aggravated felony, with a 10-year statutory maximum term 
of imprisonment, for cases involving a release of a hazardous material 
that results in death or bodily injury. Appendix A (Statutory Index) 
references 49 U.S.C. Sec.  5124 to Sec.  2Q1.2 (Mishandling of 
Hazardous or Toxic Substances or Pesticides; Recordkeeping, Tampering, 
and Falsification; Unlawfully Transporting Hazardous Materials in 
Commerce). In 2004 the Commission amended Sec.  2Q1.2 to provide a two-
level enhancement in Sec.  2Q1.2(b)(7) for defendants convicted of 49 
U.S.C. 5124 or 46312 because ``[t]hese offenses pose an inherent risk 
to large populations in a manner not typically associated with other 
pollution offenses sentenced under the same guideline. See USSG App. C 
(Amendment 672) (effective Nov. 1, 2004). In addition to application of 
Sec.  2Q1.2(b)(7), a defendant convicted of 49 U.S.C. 5124 likely would 
receive a four-level enhancement under Sec.  2Q1.2(b)(1)(B) for a 
release of a hazardous substance (because the offense of conviction 
necessarily involves such a release) and a nine-level enhancement for 
the substantial likelihood of death or serious bodily injury under 
Sec.  2Q1.2(b)(2). When added to the Base Offense Level of 8, the 
minimum offense level under Sec.  2Q1.2 would be level 23 (46-57 months 
at CHC I). Further, Application Note 6 states that an upward departure 
would be warranted in any case in which death or serious bodily injury 
results. The Commission requests comment regarding whether Sec.  2Q1.2 
currently provides adequate penalties for a defendant convicted under 
49 U.S.C. 5124. If not, how should the Commission amend Sec.  2Q1.2 to 
address adequately these offenses? For example, should the Commission 
provide an enhancement greater than two levels for such offenses? 
Should the Commission provide a minimum offense level for 49 U.S.C. 
5124 offenses that actually result in death or serious bodily injury?
    2. The USA PATRIOT Improvement and Reauthorization Act of 2005, 
Public Law 109-177, amended 18 U.S.C. 1036 to add seaports to the list 
of covered locations and to increase the statutory maximum term of 
imprisonment from 5 years to 10 years. The proposed amendment adds 
seaports to the two-level enhancement in Sec.  2B2.3(b)(1). Section 
2B2.3 (Trespass) also provides a cross reference in subsection (c) if 
the offense was committed with the intent to commit a felony offense. 
The Commission requests comment regarding whether, as an alternative to 
the cross reference provision, and as a possible means of simplifying 
this guideline, it should amend Sec.  2B2.3 to provide instead a 
general specific offense characteristic for any trespass offense that 
was committed with the intent to commit a felony. If so, how many 
levels would be appropriate? Should the Commission consider amending 
Sec.  2B2.3(b)(1) to provide an additional increase if the trespass on 
any of the enumerated locations was committed with the intent to commit 
a felony offense?
    3. The USA PATRIOT Improvement and Reauthorization Act provided a 
new offense at 18 U.S.C. 226 for bribery affecting port security. The 
provision criminalizes bribery with the intent to commit international 
terrorism or domestic terrorism and provides a statutory maximum term 
of imprisonment of 15 years. In general, the guidelines reference 
bribery offenses to Sec.  2C1.1 (Offering, Giving, Soliciting, or 
Receiving a Bribe; Extortion Under Color of Official Right; Fraud 
Involving the Deprivation of the Intangible Right to Honest Services of 
Public Officials; Conspiracy to Defraud by Interference with 
Governmental Functions), which provides alternative base offense levels 
of 14, if the defendant was public official, or 12, otherwise. Section 
2C1.1(c)(1) provides a cross reference if the offense was committed for 
the purpose of facilitating the commission of another criminal offense 
(and the guideline applicable to a conspiracy to commit that other 
offense results in a greater offense level than Sec.  2C1.1). The 
Commission requests comment regarding whether it should reference 18 
U.S.C. Sec.  226 to Sec.  2C1.1 and, if so, whether the cross reference 
provision is a sufficient means of handling bribery cases involving an 
intent to commit an act of international or domestic terrorism. If the 
offense is referenced to Sec.  2C1.1, should the Commission, as an 
alternative to the cross reference provision and as a possible means of 
simplifying this guideline, provide a specific offense characteristic 
for convictions of 18 U.S.C. 226 that results in an offense level 
proportionate to other terrorism-related offenses (e.g., providing a 
minimum offense level of 26 would provide parity with offenses 
sentenced under Sec.  2M5.3 (Providing Material Support or Resources to 
Designated Foreign Terrorist Organizations or for a Terrorist 
Purpose)). Alternatively, should the Commission reference 18 U.S.C. 226 
to 2M5.3?
    4. In addition to consolidating 18 U.S.C. 1992 and 1993, the USA 
PATRIOT Improvement and Reauthorization Act replaced the term ``public 
transportation'' (added by the SAFETEA-LU Act) with ``mass 
transportation'' (the term used in 18 U.S.C. 1992 prior to SAFETEA-LU). 
``Mass transportation'' now is defined at 18 U.S.C. 1992(d)(7) to have 
the same meaning as ``public transportation'' (defined at 49 U.S.C. 
5302(a)(7)) except that, for purposes of 18 U.S.C. 1992, ``mass 
transportation'' includes school bus, charter, sightseeing 
transportation, and passenger vessel. School bus and charter are 
otherwise expressly excluded from the definition of ``public 
transportation'' as are intercity bus transportation and intercity 
passenger rail transportation. The Commission requests comment 
regarding the appropriate term to use in the context of Sec.  2A5.2 
(Interference with Flight Crew Member or Flight Attendant; Interference 
with Dispatch, Operation, or Maintenance of Mass Transportation Vehicle 
or a Ferry). Specifically, should the Commission use ``mass 
transportation'' as that term is now defined by 18 U.S.C. 1992(d)(7) 
(i.e., including school bus, charter, sightseeing transportation and 
passenger vessel) or use the more limited term ``public 
transportation'' (i.e., excluding school bus, charter, intercity bus 
transportation, and intercity passenger rail transportation)?
    5. The proposed amendment provides 2 options for amending Sec.  
2B1.1 to address 18 U.S.C. 659 (Cargo theft). The Commission requests 
comment regarding whether, rather than an enhancement based on the 
statute of conviction, it ought to provide an enhancement based on real 
offense conduct such as if the offense involved cargo theft. The 
Commission also requests comment regarding whether it

[[Page 4377]]

should provide an enhancement for conduct covered by convictions under 
18 U.S.C. 2312 (Transportation of stolen vehicles) and 2313 (Sale or 
receipt of stolen vehicles), either as part of the proposed enhancement 
for 18 U.S.C. 659 offenses or as a separate enhancement.

2. Sex Offenses

    Synopsis of Proposed Amendment: This multi-part proposed amendment 
implements the Adam Walsh Child Protection and Safety Act of 2006, 
Public Law 109-248. Part I of this proposed amendment implements the 
directive in section 141 of the Act pertaining to the new offense in 18 
U.S.C. 2250 for failure to register as a sex offender. The directive 
instructs the Commission, in promulgating guidelines for use of a 
sentencing court in determining the sentence to be imposed for [18 
U.S.C. 2250], to consider the following matters:
    (1) Whether the person committed another sex offense in connection 
with, or during, the period for which the person failed to register.
    (2) Whether the person committed an offense against a minor in 
connection with, or during, the period for which the person failed to 
register.
    (3) Whether the person voluntarily attempted to correct the failure 
to register.
    (4) The seriousness of the offense which gave rise to the 
requirement to register, including whether such offense is a tier I, 
tier II, or tier III offense, as those terms are defined in section 111 
[of the Act].
    (5) Whether the person has been convicted or adjudicated delinquent 
for any offense other than the offense which gave rise to the 
requirement to register.
    Section 2250 of title 18, United States Code, provides a statutory 
maximum term of imprisonment of ten years for the failure to register. 
There is an additional mandatory consecutive term of 5 years' 
imprisonment applicable if a person commits a crime of violence while 
in failure to register status (18 U.S.C. 2250(c)). The requirements 
pertaining to who must register, where the registration must occur, and 
for how long are set forth in 42 U.S.C. 16911.
    The proposed amendment provides a new guideline in Sec.  2A3.5 
(Failure to Register as a Sex Offender). The proposed amendment 
presents two options for addressing the fourth matter of the directive. 
Option One provides multiple base offense levels based on the category 
of offense that gave rise to the registration requirement: level 16 if 
the offense that gave rise to the requirement to register was a Tier 
III offense; level 14 if the offense that gave rise to the requirement 
to register was a Tier II offense; and level 12 if the offense that 
gave rise to the requirement to register was a Tier I offense. Option 
Two provides a base offense level of [12] and a specific offense 
characteristic in Sec.  2A3.5(b)(1) providing a two-level increase if 
the offense that gave rise to the requirement to register was a Tier II 
offense and a four-level increase if the offense that gave rise to the 
requirement to register was a Tier III offense. The resulting offense 
level under either option is the same for each tier of offense. The 
definitions for Tier I, II, and III offenses are the statutory 
definitions provided in 42 U.S.C. 16911(2), (3), and (4), respectively.
    The first and second matters are addressed in Sec.  2A3.5(b)(1) of 
Option One, and in Sec.  2A3.5(b)(2) of Option Two. Both options 
provide alternative increases based on the type of offense committed 
while in a failure to register status and on whether that offense was 
committed against a minor or an adult. The proposed amendment provides 
a 6-level increase if, while in a failure to register status, the 
defendant committed a sex offense against an adult, or kidnapped or 
falsely imprisoned a minor. If the defendant committed a sex offense 
against a minor, the proposed amendment provides an 8-level increase 
and a minimum offense level of [24]-[28].
    The third matter is addressed in Sec.  2A3.5(b)(2) in Option One, 
and in Sec.  2A3.5(b)(3) in Option Two. Both options provide a [2][4]-
level decrease if the defendant voluntarily attempted to correct the 
failure to register.
    Issues for comment 2 and 3 in Part V of the 
proposed amendment request comment regarding the scope of these 
proposed enhancements. Issue for comment 3 also asks whether 
the Commission should include an instruction that the reduction does 
not apply if any of the proposed specific offense characteristics also 
apply.
    The proposed amendment does not specifically address the fifth 
matter because application of Chapter Four will take into account 
whether the person has been convicted or adjudicated delinquent for any 
offense other than the offense which gave rise to the requirement to 
register.
    The proposed amendment also provides another new guideline for 
certain aggravated offenses related to the requirement to register as a 
sex offender. As noted previously, 18 U.S.C. 2250(c) provides a 
mandatory consecutive term of 5 years if a crime of violence was 
committed while the defendant was in a failure to register status. 
Section 2260A of title 18, United States Code, provides a mandatory 
consecutive term of 10 years' imprisonment if a person who is required 
to register commits an enumerated offense (including kidnapping, human 
trafficking, and various sex offenses). The new guideline, Sec.  2A3.6 
(Aggravated Offenses Relating to Registration as a Sex Offender), will 
apply to convictions under 18 U.S.C. 2250(c) or 2260A, and instructs 
the court that the guideline sentence for any such conviction is the 
term of imprisonment required by statute. Neither Chapters Three nor 
Four will apply to any count of conviction covered by this guideline. 
This approach is the same approach the Commission has taken with other 
statutes that provide mandatory consecutive terms of imprisonment, 
namely 18 U.S.C. 1028A (see Sec.  2B1.6 (Aggravated Identity Theft) and 
18 U.S.C. 924(c) (See Sec.  2K2.4 (Use of Firearm, Armor-Piercing 
Ammunition, or Explosive During or in Relation to Certain Crimes).)
    Part II implements other new offenses and increased penalties as 
follows:
    (A) The Act provides a mandatory minimum term of imprisonment of 30 
years for convictions under 18 U.S.C. 2241(c) (Aggravated sexual abuse 
with children). This statute covers crossing state lines to engage in 
the sexual abuse of a child under the age of 12 years. It also covers 
engaging in a sexual act under the circumstances described in 18 U.S.C. 
2241(a) and (b) (force, threat, or other means) with a child who is 
between the ages of 12 years and 16 years and is at least four years 
younger than the person who is engaging in the sexual act. The proposed 
amendment provides a base offense level of [40] in Sec.  2A3.1 
(Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse) if the 
defendant was convicted under 18 U.S.C. 2241(c). The specific offense 
characteristic for the age of the victim, subsection (b)(2), would not 
apply because the higher base offense level takes into account the age 
of the victim. There also is an application note that instructs the 
court not to apply the enhancement in Sec.  2A3.1(b)(1) (four-level 
enhancement if the offense involved conduct described in 18 U.S.C. 
Sec.  2241(a) or (b)) if the basis for the conviction under 18 U.S.C. 
2241(c) is that the defendant engaged in conduct described in 18 U.S.C. 
2241(a) or (b).
    (B) The Act increased the statutory maximum term of imprisonment 
for convictions under 18 U.S.C. 2243(b) for sexual abuse of a ward from 
five years to 15 years. The proposed amendment proposes to increase the 
base offense level in Sec.  2A3.3 (Criminal Sexual Abuse

[[Page 4378]]

of a Ward or Attempt to Commit Such Acts) to level [14][16][18][20].
    (C) The Act created a new offense in 18 U.S.C. 2244(a)(5) for 
sexual contact offenses that would have violated 18 U.S.C. 2241(c) had 
the sexual contact been a sexual act. (Section 2241(c) covers sexual 
acts with a child under 12 years old or sexual acts involving conduct 
described in 18 U.S.C. 2241(a) or (b) with a child between the ages of 
12 and 16 and who is at least four years younger than the defendant.) 
The offense has a statutory maximum term of imprisonment of life.
    The proposed amendment addresses this new offense by increasing the 
minimum offense level in the age enhancement in subsection Sec.  
2A3.4(b)(1) from level 20 to level 22.
    Issue for Comment 4 in Part V of the proposed amendment 
addresses whether Sec.  2A3.4 already adequately accounts for the new 
offense and therefore does not need to be amended.
    (D) The Act amended 18 U.S.C. 1591 (sex trafficking of children or 
by force, fraud, or coercion) to provide a mandatory minimum term of 
imprisonment of 15 years if the sex trafficking offense involved a 
minor who had not attained the age of 14 years or involved force, 
fraud, or coercion (subsection 1591(b)(1)) and a mandatory minimum of 
10 years if the offense involved a minor who had attained the age of 14 
years but had not attained the age of 18 years (subsection 1591(b)(2)). 
The Act also increased the statutory maximum term of imprisonment from 
40 years to life for 18 U.S.C. 1591(b)(2) offenses.
    To address the increased statutory minimums, the proposed amendment 
modifies the base offense levels in Sec. Sec.  2G1.1 (Promoting a 
Commercial Sex Act or Prohibited Sexual Conduct with an Individual 
Other than a Minor) and 2G1.3 (Promoting a Commercial Sex Act or 
Prohibited Sexual Conduct with a Minor; Transportation of Minors to 
Engage in a Commercial Sex Act or Prohibited Sexual Conduct).
    With respect to offenses involving force, fraud, or coercion, the 
proposed amendment would create a heightened base offense level of 
[34][36] in Sec.  2G1.1 if the offense of conviction is 18 U.S.C. 1591 
and the offense involved conduct described in subsection (b)(1) of that 
statute. An alternative base offense level of 14 would apply in all 
other cases. The proposed amendment also excludes application of the 
enhancement in Sec.  2G1.1(b)(1) to cases that are sentenced under 
Sec.  2G1.1(a)(1) because cases to which that base offense level apply 
necessarily involve fraud or coercion.
    With respect to offenses involving minors, the proposed amendment 
would create alternative base offense levels in Sec.  2G1.3 based on 
the statute of conviction and the conduct described in that conviction. 
For convictions under 18 U.S.C. 1591 in which the offense involved 
conduct described in subsection (b)(1) of that statute (i.e., offense 
was effected by force, fraud, or coercion, or involved a minor who had 
not attained the age of 14 years), the proposed base offense level is 
[34][36]. For convictions under 18 U.S.C. 1591 in which the offense 
involved conduct described in subsection (b)(2) of that statute (i.e., 
offense involved a minor who had attained the age of 14 but had not 
attained the age of 18 years), the proposed base offense level is 
[30][32].
    The Act also increased the penalties for 18 U.S.C. 2422(b) 
(Coercion and enticement [of a minor to engage in criminal sexual 
activity]) and 2423(a) (Transportation [of a minor] with intent to 
engage in criminal sexual activity). Both statutes now have a mandatory 
minimum term of 10 years (increased from 5 years) and a statutory 
maximum term of imprisonment of life (increased from 30 years). The 
proposed amendment would add Sec.  2G1.3(a)(3) with a base offense 
level of [28][30] if the defendant was convicted under 18 U.S.C. 
2422(b) or 2423(a). If the Commission decides that the base offense 
level should be the same for offenses under 18 U.S.C. 1591(b)(2), 
2422(b), and 2423(a), then the Team would modify the proposed amendment 
to consolidate these offenses into one base offense level.
    The proposed amendment also provides a range of [4]-[8] at Sec.  
2G1.3(b)(5). It also addresses the interaction of subsection (b)(5), 
which provides an 8-level increase if the offense involved a minor who 
had not attained the age of 12 years, and the proposed addition of 
alternative base offense levels. Now that age is a factor the court 
considers in determining the appropriate base offense level for 
convictions under 18 U.S.C. 1591, the proposed amendment provides a new 
application note that instructs the court not to apply subsection 
(b)(5) if subsection (a)(1) applies. The proposed amendment also 
provides an option for modifying the enhancement.
    Issue for comment 8 asks whether the Commission should 
consider providing an increase of four or six levels, instead of eight 
levels, at Sec.  2G1.3(b)(5) in any case in which the age of the minor 
victim is taken into account by base offense level.
    (E) The Act created a new offense in 18 U.S.C. 2257A that imposes 
recordkeeping requirements on individuals who produce depictions of 
simulated sexually explicit conduct. Failure to comply with the 
recordkeeping requirements carries a statutory maximum term of 
imprisonment of 1 year. If the offense was intended to conceal a child 
pornography offense, the statute provides a statutory maximum term of 
imprisonment of 5 years for the first offense; for the second offense, 
the penalty is a 2-year mandatory minimum and a statutory maximum of 10 
years.
    The proposed amendment references this new offense to Sec.  2G2.5 
(Recordkeeping Offenses Involving the Production of Sexually Explicit 
Materials; Failure to Provide Required Marks in Commercial Electronic 
Email).
    Issue for Comment 5 in Part V of the proposed amendment 
requests comment regarding the refusal to allow inspection of records 
in violation of 18 U.S.C. 2257(f)(5) or 2257A.
    (F) The Act created a new offense in 18 U.S.C. 2252A(g) that 
prohibits engaging in child exploitation enterprises, defined in the 
statute as violating 18 U.S.C. Sec.  1591, 1201 (if the victim is a 
minor), Chapter 109A (involving a minor), Chapter 110 (except for 18 
U.S.C. 2257 and 2257A), or Chapter 117 (involving a minor), as part of 
a series of felony violations constituting three or more separate 
incidents and involving more than one victim, and committing those 
offenses in concert with three or more other people. The statute 
provides a mandatory minimum term of imprisonment of 20 years.
    The proposed amendment creates a new guideline, Sec.  2G2.6 (Child 
Exploitation Enterprises), to cover this new offense. The guideline 
provides a base offense level of [34][35][36][37] and three specific 
offense characteristics, based on the age of the victim (subsection 
(b)(1)), whether the defendant was the parent or had some other 
custodial care of the victim (subsection (b)(2)), and whether the 
offense involved conduct described in 18 U.S.C. 2241(a) or (b) 
(subsection (b)(3)).
    Issue for Comment 6 requests comment regarding the base 
offense level, the scope of the proposed specific offense 
characteristics, and whether the Commission should consider other 
conduct for purposes of providing additional specific offense 
characteristics.
    (G) The Act created a new offense in 18 U.S.C. 2252C that prohibits 
knowingly embedding words or images into the source code of a Web site 
with the intent to deceive a person into

[[Page 4379]]

viewing obscenity, or to deceive a minor into viewing material harmful 
to minors. The statute carries a statutory maximum term of imprisonment 
of 20 years if the offense involved a minor, or a maximum of 10 years, 
otherwise. Application Note 2 proposes that the specific offense 
characteristic at Sec.  2G3.1(b)(3) not apply for offenses under 18 
U.S.C. 2252C.
    The proposed amendment modifies subsection (b)(2) of Sec.  2G3.1 
(Importing, Mailing, or Transporting Obscene Matter; Transferring 
Obscene Matter to a Minor; Misleading Domain Names), which currently 
provides a two-level enhancement if the offense involved misleading 
domain names. The proposed amendment adds to this enhancement embedding 
words or digital images on a Web site and also presents the option of 
providing a four-level increase for this enhancement.
    Issue for Comment 7 requests comment regarding whether the 
Commission should provide an enhancement if the defendant intended to 
deceive someone other than a minor into viewing obscenity.
    Part III addresses other criminal provisions contained in the Act 
as follows:
    (A) The Act created a new Class A misdemeanor in 42 U.S.C. 16984 
prohibiting the use of a child's fingerprints that were derived from a 
program funded by federal grants to support voluntary fingerprinting of 
children for any purpose other than providing the fingerprints to the 
child's parents or guardian. The proposed amendment references this new 
offense to Sec.  2H3.1.1 (Interception of Communications; 
Eavesdropping; Disclosure of Tax Return Information) and provides a 
base offense level of 6 for the offense. The heading of the guideline 
also is amended to cover personal information of this sort.
    The Act also created 42 U.S.C. 16962 prohibiting the improper 
release of information obtained in fingerprint-based checks for the 
background check of foster or adoptive parents or of a person employed 
by, or considering employment with, a private or public educational 
agency. The statute provides a statutory maximum term of imprisonment 
of 10 years. The proposed amendment references this offense to Sec.  
2H3.1 and such offenses will receive a base offense level of 9 under 
Sec.  2H3.1(a)(1).
    (B) The Act amended 18 U.S.C. 1001 to provide an enhanced penalty 
of up to 8 years if the matter relates to an offense under 18 U.S.C. 
1591 or Chapters 109A, 110, or 117 of title 18, United States Code. The 
proposed amendment adds a [2]-[12] level enhancement in subsection 
(b)(1)(C) of Sec.  2J1.2 (Obstruction of Justice) to cover such 
conduct.
    (C) The Act added 18 U.S.C. 1591 to the list in 18 U.S.C. 
3559(e)(2) of repeated sex offenses committed against children that 
require a mandatory life imprisonment. The proposed amendment adds 18 
U.S.C. 1591 to the list of covered sex offenses in Application Note 2 
of Sec.  4B1.5 (Repeat and Dangerous Sex Offender Against Minors).
    Part IV addresses the probation and supervised release aspects of 
the Act. First, the proposed amendment updates subsection (a)(9) of 
Sec.  5B1.3 (Conditions of Probation) and subsection (a)(7) of Sec.  
5D1.3 to include compliance with SORNA as one of the mandatory 
conditions. Second, it adds to the list of ``special conditions'' in 
Sec. Sec.  5B1.3(d) and 5D1.3(d) a condition requiring a sex offender 
to submit to a search, as added to 18 U.S.C. 3563(b) and 3583(d) by the 
Act. Third, the proposed amendment modifies Sec.  5D1.2 (Term of 
Supervised Release) to add Chapter 109B and 18 U.S.C. 1201 and 1591 to 
the definition of sex offense in Application Note 1 of that guideline.
    Part V sets forth all of the issues for comment. In addition to the 
specific issues noted in this synopsis, Issue for Comment 1 
requests input regarding how the Commission should incorporate the 
mandatory minimum terms of imprisonment created or increased by the 
Adam Walsh Act and discusses four approaches for incorporating these 
penalties.

Proposed Amendment

Part I--Implementing Directive Regarding 18 U.S.C. Sec.  2250 Offenses
    Chapter Two, Part A, Subpart 3 is amended in the heading by adding 
at the end ``AND OFFENSES RELATED TO REGISTRATION AS A SEX OFFENDER''; 
and by adding at the end the following new guidelines and accompanying 
commentary:
``Sec.  2A3.5. Failure to Register as a Sex Offender
    Option 1:
    [(a) Base Offense Level:
    (1) 16, if the offense that gave rise to the requirement to 
register was a Tier III offense;
    (2) 14, if the offense that gave rise to the requirement to 
register was a Tier II offense; or
    (3) 12, if the offense that gave rise to the requirement to 
register was a Tier I offense.
    (b) Specific Offense Characteristics:
    (1) If, while in a failure to register status, the defendant (A)(i) 
committed a sex offense against someone other than a minor; or (ii) 
kidnapped or falsely imprisoned a minor, increase by 6 levels; or (B) 
committed a sex offense against a minor, increase by 8 levels. If the 
offense level resulting from application of subdivision (B) is less 
than level [24]-[28], increase to level [24]-[28].
    (2) If the defendant voluntarily attempted to correct the failure 
to register, decrease by [2][4]levels.]
    Option 2:
    [(a) Base Offense Level: 12
    (b) Specific Offense Characteristics
    (1) If the offense that gave rise to the requirement to register 
was a (A) Tier II offense, increase by 2 levels; or (B) Tier III 
offense, increase by 4 levels.
    (2) If, while in a failure to register status, the defendant (A)(i) 
committed a sex offense against a person other than a minor; or (ii) 
kidnapped or falsely imprisoned a minor, increase by 6 levels; or (B) 
committed a sex offense against a minor, increase by 8 levels. If the 
offense level resulting from application of subdivision (B) is less 
than level [24]-[28], increase to level [24]-[28].
    (3) If the defendant voluntarily attempted to correct the failure 
to register, decrease by [2][4] levels.]
Commentary
    Statutory Provision: 18 U.S.C. 2250(a).
    Application Note:
    1. Definitions.--For purposes of this guideline:
    `Minor' means (A) an individual who had not attained the age of 18 
years; (B) an individual, whether fictitious or not, who a law 
enforcement officer represented to a participant (i) had not attained 
the age of 18 years; and (ii) could be provided for the purposes of 
engaging in sexually explicit conduct; or (C) an undercover law 
enforcement officer who represented to a participant that the officer 
had not attained the age of 18 years.
    `Sex offense' has the meaning given that term in 42 U.S.C. Sec.  
16911(5), except that kidnapping and false imprisonment are not 
included.
    [`Tier I offense',] `tier II offense', and `tier III offense' have 
the meaning given those terms in 42 U.S.C. Sec.  16911[(2)], (3) and 
(4), respectively.
Sec.  2A3.6. Aggravated Offenses Relating to Registration as a Sex 
Offender
    (a) If the defendant was convicted under 18 U.S.C. 2250(c) or Sec.  
2260A, the guideline sentence is the term of imprisonment required by 
statute. Chapters Three (Adjustments) and Four

[[Page 4380]]

(Criminal History and Criminal Livelihood) shall not apply to that 
count of conviction.
Commentary
    Statutory Provisions: 18 U.S.C. 2250(c), 2260A.
    Application Notes:
    1. In General.--Sections 2250(c) and 2260A of title 18, United 
States Code, provide mandatory minimum terms of imprisonment that are 
required to be imposed consecutively to other offenses. Accordingly, 
the guideline sentence for a defendant convicted under either statute 
is the term required by the statute.
    2. Inapplicability of Chapters Three and Four.--Do not apply 
Chapters Three (Adjustments) and Four (Criminal History and Criminal 
Livelihood) to any offense sentenced under this guideline. Such 
offenses are excluded from application of those chapters because the 
guideline sentence for each offense is determined only by the relevant 
statute. See Sec. Sec.  3D1.1 (Procedure for Determining Offense Level 
on Multiple Counts) and 5G1.2 (Sentencing on Multiple Counts of 
Conviction).''
Part II--Implementing New Sex Offenses and Increased Penalties
    (A) New Mandatory Minimum for 18 U.S.C. 2241(c):
    Section 2A3.1(a) is amended by striking ``30'' and inserting the 
following:
    ``(1) 40, if the defendant was convicted under 18 U.S.C. 2241(c); 
or
    (2) 30, otherwise.''.
    Section 2A3.1(b)(2) is amended by striking ``(A) If'' and inserting 
``If subsection (a)(2) applies and (A)''; and by striking ``if'' after 
``(B)''.
    The Commentary to Sec.  2A3.1 captioned ``Application Notes'' is 
amended in Note 2 by inserting ``A. Definitions.--'' before ``For 
purposes of subsection (b)(1),''; and by adding at the end following 
paragraph:
    ``B. Application in Cases Involving a Conviction under 18 U.S.C. 
2241(c).--If the conduct that forms the basis for a conviction under 18 
U.S.C. 2241(c) is that the defendant engaged in conduct described in 18 
U.S.C. Sec.  2241(a) or (b), do not apply subsection (b)(1).''.
    The Commentary to Sec.  2A3.1 captioned ``Background'' is amended 
in the first paragraph in the third sentence by inserting ``in 
subsection (a)(2)'' after ``offense level''; and in the second 
paragraph in the second sentence by inserting ``, except when 
subsection (b)(2) applies'' after ``twelve years of age''.
    (B) Increased Statutory Maximum in 18 U.S.C. Sec.  2423(b):
    Section 2A3.3(a) is amended by striking ``12'' inserting 
``[12][14][16][18][20]''.
    The Commentary to Sec.  2A3.3 captioned ``Application Notes'' is 
amended in Note 1 by striking ``Minor'' through the end of that 
sentence and inserting the following:
    ```Minor' means (A) an individual who had not attained the age of 
18; (B) an individual, whether fictitious or not, who a law enforcement 
officer represented to a participant (i) had not attained the age of 18 
years; and (ii) could be provided for the purposes of engaging in 
sexually explicit conduct; or (C) an undercover law enforcement officer 
who represented to a participant that the officer had not attained the 
age of 18 years.''.
    The Commentary to Sec.  2A3.3 is amended by striking the 
Background.
    (C) New Offense in 18 U.S.C. Sec.  2244(a)(5):
    Section 2A3.4(b)(1) is amended by striking ``20'' each place it 
appears and inserting ``22''.
    The Commentary to Sec.  2A3.4 captioned ``Statutory Provisions'' is 
amended by striking ``(a)(1), (2), (3)''.
    (D) Increased Penalties (statutory minimum and maximum) for 18 
U.S.C. Sec.  1591 Section 2G1.1(a) is amended by striking ``14'' and 
inserting the following:
    ``(1) [34][36], if the offense of conviction is 18 U.S.C. 1591 and 
the offense involved conduct described in subsection (b)(1) of that 
statute; or
    (2) 14, otherwise.''.
    Section 2G1.1(b)(1) is amended by inserting ``subsection (a)(2) 
applies and'' after ``If''.
    The Commentary to Sec.  2G1.1 captioned ``Application Notes'' is 
amended in Note 2 by adding at the end the following:
    ``Do not apply this enhancement if the base offense level is 
determined under subsection (a)(1) because subsection (a)(1) 
necessarily involves fraud or coercion.''.
    Section 2G1.3(a) is amended by striking ``24'' and inserting:
    ``(1) [34][36], if the defendant was convicted under 18 U.S.C. 
Sec.  1591 and the offense involved conduct described in subsection 
(b)(1) of that statute;
    (2) [30][32], if the defendant was convicted under 18 U.S.C. Sec.  
1591 and the offense involved conduct described in subsection (b)(2) of 
that statute;
    (3) [28][30], if the defendant was convicted under 18 U.S.C. Sec.  
2422(b) or Sec.  2423(a); or
    (4) 24, otherwise.''.
    Section 2G1.3 is amended in subsection (b)(5) by striking ``8'' and 
inserting ``[4][6][8]''.
    The Commentary to Sec.  2G1.3 captioned ``Statutory Provisions'' is 
amended by striking ``2422(b),''.
    The Commentary to Sec.  2G1.3 captioned ``Application Notes'' is 
amended by redesignating Notes 5 through 7 as Notes 6 through 8, 
respectively, and inserting the following after Note 4:
    ``5. Interaction of Subsections (a)(1) and (b)(5).--If subsection 
(a)(1) applies, do not apply subsection (b)(5).''.
    (E) New Recordkeeping Offense in 18 U.S.C. Sec.  2257A:
    The Commentary to Sec.  2G2.5 captioned ``Statutory Provisions'' is 
amended by inserting ``Sec.  '' before ``2257''; and by inserting ``, 
2257A'' after ``2257''.
    (F) New Offense in Sec.  2252A(g) for Child Exploitation Enterprise 
Chapter Two, Part G, Subpart Two is amended by adding at the end the 
following new guideline and accompanying commentary:
``Sec.  2G2.6. Child Exploitation Enterprises
    (a) Base Offense Level: [34][[35][36][37]
    (b) Specific Offense Characteristics
    (1) If a victim (A) had not attained the age of 12 years, increase 
by 4 levels; or (B) had attained the age of 12 years but had not 
attained the age of 16 years, increase by 2 levels.
    (2) If (A) the defendant was a parent, relative, or legal guardian 
of a minor victim; or (B) a minor victim was otherwise in the custody, 
care, or supervisory control of the defendant, increase by 2 levels.
    (3) If the offense involved conduct described in 18 U.S.C. 2241(a) 
or (b), increase by 2 levels.
Commentary
    Statutory Provision: 18 U.S.C. 2252A(g).
    Application Notes:
    1. Application of Subsection (b)(2).--
    (A) Custody, Care, or Supervisory Control.--Subsection (b)(2) is 
intended to have broad application and includes offenses involving a 
victim less than 18 years of age entrusted to the defendant, whether 
temporarily or permanently. For example, teachers, day care providers, 
baby-sitters, or other temporary caretakers are among those who would 
be subject to this enhancement. In determining whether to apply this 
enhancement, the court should look to the actual relationship that 
existed between the defendant and the minor and not simply to the legal 
status of the defendant-minor relationship.
    (B) Inapplicability of Chapter Three Adjustment.--If the 
enhancement under subsection (b)(1) applies, do not apply Sec.  3B1.3 
(Abuse of Position of Trust or Use of Special Skill).

[[Page 4381]]

    2. Application of Subsection (b)(3).--For purposes of subsection 
(b)(3), `conduct described in 18 U.S.C. Sec.  2241(a) or (b)' is: (i) 
Using force against the minor; (ii) threatening or placing the minor in 
fear that any person will be subject to death, serious bodily injury, 
or kidnapping; (iii) rendering the minor unconscious; or (iv) 
administering by force or threat of force, or without the knowledge or 
permission of the minor, a drug, intoxicant, or other similar substance 
and thereby substantially impairing the ability of the minor to 
appraise or control conduct. This provision would apply, for example, 
if any dangerous weapon was used or brandished, or in a case in which 
the ability of the minor to appraise or control conduct was 
substantially impaired by drugs or alcohol.
    3. Definition of Minor.--`Minor' means (A) an individual who had 
not attained the age of 18 years; (B) an individual, whether fictitious 
or not, who a law enforcement officer represented to a participant (i) 
had not attained the age of 18 years; and (ii) could be provided for 
the purposes of engaging in sexually explicit conduct; or (C) an 
undercover law enforcement officer who represented to a participant 
that the officer had not attained the age of 18 years.''
    (G) New Offense in 18 U.S.C. 2252C for Embedding Words or Images
    Section 2G3.1 is amended by striking subsection (b)(2) and 
inserting the following:
    ``(2) If, with the intent to deceive a minor into viewing material 
that is harmful to minors, the offense involved the use of (A) a 
misleading domain name on the Internet; or (B) embedded words or 
digital images in the sourcecode of a Web site, increase by [2][4] 
levels.''.
    The Commentary to Sec.  2G3.1 captioned ``Statutory Provisions'' is 
amended by inserting ``, 2252C'' after ``2252B''.
    The Commentary to Sec.  2G3.1 captioned ``Application Notes'' is 
amended in Note 2 by inserting ``or Sec.  2252C'' after ``Sec.  
2252B''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. 2245 the following:

``18 U.S.C. 2250(a)--2A3.5
18 U.S.C. 2250(c)--2A3.6'';
by inserting after the line referenced to 18 U.S.C. 2252B the 
following:
``18 U.S.C. 2252C--2G3.1'';
by inserting after the line referenced to 18 U.S.C. 2257 the following:
``18 U.S.C. 2257A--2G2.5'';
and by inserting after the line referenced to 18 U.S.C. 2260(b) the 
following:
``18 U.S.C. 2260A--2A3.6''.
Part III--Other Criminal Provisions
    (A) New Offenses in 42 U.S.C. 16962 and 16984 Relating to 
Fingerprints:
    Section 2H3.1 is amended in the heading by striking ``Tax Return 
Information'' and inserting ``Certain Personal Information''.
    Section 2H3.1(a)(2) is amended in by striking ``or 26 U.S.C. 7216'' 
and inserting ``, Sec.  7216, or 42 U.S.C. Sec.  16984''.
    The Commentary to Sec.  2H3.1 captioned ``Statutory Provisions'' is 
amended by inserting ``42 U.S.C. 16962, 16984;'' after ``7216;''.
    The Commentary to Sec.  2H3.1 captioned ``Application Notes'' is 
amended by striking ``Notes'' and inserting ``Note''; by striking Note 
1; and by redesignating Note 2 as Note 1.
    (B) Increased Penalty in 18 U.S.C. 1001:
    Section 2J1.2(b)(1)(B) is amended by inserting ``the'' after 
``If''; and by striking ``the'' after ``(ii)''.
    Section 2J1.2(b)(1) is amended by adding at the end the following:
    ``(C) If the (i) defendant was convicted under 18 U.S.C. 1001; and 
(ii) statutory maximum term of imprisonment relating to sex offenses 
under 18 U.S.C. Sec.  1591 or chapters 109A, 109B, 110, or 117 of title 
18, United States Code, is applicable, increase by [2]-[12] levels.''.
    The Commentary to Sec.  2J1.2 captioned ``Statutory Provisions'' is 
amended by striking:
    ``when the statutory maximum term of imprisonment relating to 
international terrorism or domestic terrorism is applicable'', and 
inserting: ``(when the statutory maximum term of imprisonment relating 
to international terrorism, domestic terrorism, or sex offenses under 
18 U.S.C. 1591 or chapters 109A, 109B, 110, or 117 of title 18, United 
States Code, is applicable)''.
    (D) 18 U.S.C. 1591 Added to List of Covered Sex Offenses:
    The Commentary to Sec.  4B1.5 captioned ``Application Notes'' is 
amended by striking Note 1 and inserting the following:
    ``1. Definition.--For purposes of this guideline, `minor' means (A) 
an individual who had not attained the age of 18 years; (B) an 
individual, whether fictitious or not, who a law enforcement officer 
represented to a participant (i) had not attained the age of 18 years; 
and (ii) could be provided for the purposes of engaging in sexually 
explicit conduct; or (C) an undercover law enforcement officer who 
represented to a participant that the officer had not attained the age 
of 18 years.''.
    The Commentary to Sec.  4B1.5 captioned ``Application Notes'' is 
amended in Note 2 by inserting ``or (iv) 18 U.S.C. Sec.  1591;'' after 
``alien individual;''; and by striking ``through (iii)'' and inserting 
``through (iv)''.
    The Commentary to Sec.  4B1.5 captioned ``Background'' is amended 
by striking the first and second sentences and inserting the following:
    ``This guideline applies to offenders whose instant offense of 
conviction is a sex offense committed against a minor and who present a 
continuing danger to the public.''
    Appendix A (Statutory Index) is amended in the line referenced to 
18 U.S.C. 1001 by striking: ``when the statutory maximum term of 
imprisonment relating to international terrorism or domestic terrorism 
is applicable'', and inserting: ``(when the statutory maximum term of 
imprisonment relating to international terrorism, domestic terrorism, 
or sex offenses under 18 U.S.C. 1591 or chapters 109A, 109B, 110, or 
117 of title 18, United States Code, is applicable)''; and by inserting 
after the line referenced to 42 U.S.C. 14905 the following:

``42 U.S.C. 16962--2H3.1
42 U.S.C. 16984--2H3.1''.
Part IV--Provisions Regarding Probation and Supervised Release
    Section 5B1.3(a)(9) is amended by striking ``a defendant'' and all 
that follows through the end of ``student;'' and inserting the 
following:
    ``a sex offender shall comply with the requirements of the Sex 
Offender Registration and Notification Act (42 U.S.C. 16913) by (A) 
registering, and keeping such registration current, where the offender 
resides, where the offender is an employee, and where the offender is a 
student, and for the initial registration, a sex offender also shall 
register in the jurisdiction in which convicted if such jurisdiction is 
different from the jurisdiction of residence; (B) providing information 
required by 42 U.S.C. 16914; and (C) keeping such registration current 
for the full registration period as set forth in 42 U.S.C. 16915;''.
    Section 5B1.3(d)(7) is amended by adding at the end the following:
    ``(C) A condition requiring the defendant to submit to a search, at 
any time, with or without a warrant, and by any law enforcement or 
probation officer, of the defendant's person and any property, house, 
residence, vehicle, papers, computer, other electronic communication or 
data storage devices or media, and effects, upon reasonable suspicion 
concerning a violation of a condition of probation or unlawful conduct 
by the defendant, or by any

[[Page 4382]]

probation officer in the lawful discharge of the officer's supervision 
functions.''.
    The Commentary to Sec.  5D1.2 captioned ``Application Notes'' is 
amended by striking Note 1 and inserting the following:
    ``1. Definitions.--For purposes of this guideline:
    `Sex offense' means (A) an offense, perpetrated against a minor, 
under (i) chapter 109A of title 18, United States Code; (ii) chapter 
109B of such title; (iii) chapter 110 of such title, not including a 
recordkeeping offense; (iv) chapter 117 of such title, not including 
transmitting information about a minor or filing a factual statement 
about an alien individual; (v) an offense under 18 U.S.C. 1201; or (vi) 
an offense under 18 U.S.C. 1591; or (B) an attempt or a conspiracy to 
commit any offense described in subdivisions (A)(i) through (vi) of 
this note.
    `Minor' means (A) an individual who had not attained the age of 18 
years; (B) an individual, whether fictitious or not, who a law 
enforcement officer represented to a participant (i) had not attained 
the age of 18 years; and (ii) could be provided for the purposes of 
engaging in sexually explicit conduct; or (C) an undercover law 
enforcement officer who represented to a participant that the officer 
had not attained the age of 18 years.''.
    Section 5D1.3(a)(7) is amended by striking ``a defendant'' and all 
that follows through the end of ``student;'' and inserting the 
following:
    ``a sex offender shall comply with the requirements of the Sex 
Offender Registration and Notification Act (42 U.S.C. 16913) by (A) 
registering, and keeping such registration current, where the offender 
resides, where the offender is an employee, and where the offender is a 
student, and for the initial registration, a sex offender also shall 
register in the jurisdiction in which convicted if such jurisdiction is 
different from the jurisdiction of residence; (B) providing information 
required by 42 U.S.C. 16914; and (C) keeping such registration current 
for the full registration period as set forth in 42 U.S.C. 16915;''.
    Section 5D1.3(d)(7) is amended by adding at the end the following:
    ``(C) A condition requiring the defendant to submit to a search, at 
any time, with or without a warrant, and by any law enforcement or 
probation officer, of the defendant's person and any property, house, 
residence, vehicle, papers, computer, other electronic communication or 
data storage devices or media, and effects upon reasonable suspicion 
concerning a violation of a condition of supervised release or unlawful 
conduct by the defendant, or by any probation officer in the lawful 
discharge of the officer's supervision functions.''.
Part V--Issues for Comment:
    1. The Commission requests comment regarding how it should 
incorporate the mandatory minimum terms of imprisonment created or 
increased by the Adam Walsh Child Protection Act of 2006. There are 
four potential approaches to consider. First, the Commission can set 
the base offense level to correspond to the first offense level on the 
sentencing table with a guideline range in excess of the mandatory 
minimum. Historically, this is the approach the Commission has taken 
with respect to drug offenses. For example, a 10-year mandatory minimum 
would correspond to a base offense level of 32 (121-151 months). 
Second, the Commission can set the base offense level such that the 
guideline range is the first on the sentencing table to include the 
mandatory minimum term of imprisonment at any point within the range. 
Under this approach, a 10-year mandatory minimum would correspond to a 
base offense level of 31 (108-135 months). Third, the Commission could 
set the base offense level such that the corresponding guideline range 
is lower than the mandatory minimum term of imprisonment but then 
anticipate that certain frequently applied specific offense 
characteristics would increase the offense level and corresponding 
guideline range to encompass the mandatory minimum. The Commission took 
this approach in 2004 when it implemented the PROTECT Act. Fourth, the 
Commission could decide not to change the base offense levels and allow 
Sec.  5G1.1(b) to operate. Section 5G1.1(b) provides that if a 
mandatory minimum term of imprisonment is greater than the maximum of 
the applicable guideline range, the statutorily required minimum 
sentence shall be the guideline sentence.
    2. Pursuant to the directive in section 141 of the Act, the 
Commission must consider, ``whether the person committed an offense 
against a minor in connection with, or during, the period for which the 
person failed to register.'' In light of this consideration, the 
Commission requests comment regarding the scope of the proposed 
enhancement in Sec.  2A3.5(b)(1) of Option 1 and Sec.  2A3.5(b)(2) of 
Option 2 with respect to minors. Should the Commission expand the 
proposed six-level enhancement so that it would apply in the case of 
any non-sexual offense committed against a minor? As an alternative to 
providing tiered enhancements based on the type of offense committed 
against a minor (as presented in the proposed amendment), should the 
Commission structure the enhancement so that any offense committed 
against a minor would warrant an eight-level enhancement and any 
offense committed against a person other than a minor would warrant a 
six-level enhancement? If so, should the enhancement also provide a 
minimum offense level of [24]-[28]?
    3. The proposed amendment provides in Sec.  2A3.5 a [2][4]-level 
reduction if the defendant voluntarily attempted to correct the failure 
to register. The Commission requests comment regarding this reduction. 
Specifically, how should the Commission address circumstances in which 
it was impossible for the defendant to register, for example, the 
defendant had a debilitating illness or severe mental impairment, or 
the jurisdiction in which the defendant works or is a student does not 
allow non-residents to register. Should the proposed reduction be 
extended to such circumstances or is there an alternative way in which 
the Commission should take such circumstances into account in the 
guidelines?
    The Commission also requests comment regarding whether it should 
provide an instruction that the reduction does not apply if any of the 
proposed specific offense characteristics also apply.
    4. The Adam Walsh Child Protection Act created a new offense at 18 
U.S.C. 2244(a)(5), with a statutory maximum term of imprisonment of 
life, for sexual contact that would have violated 18 U.S.C. 2241(c) 
(Aggravated sexual abuse with children) had the sexual contact been a 
sexual act. The proposed amendment addresses this new offense in Sec.  
2A3.4 (Abusive Sexual Contact or Attempt to Commit Abusive Sexual 
Contact) by increasing the minimum offense level in subsection (b)(1) 
(if the victim was under the age of 12 years) from level 20 to level 
22. The Commission requests comment regarding whether it should amend 
Sec.  2A3.4 to account specifically for this new offense or whether the 
current provisions of the guideline are adequate to account for this 
new offense.
    5. The proposed amendment references 18 U.S.C. 2257A (Record 
keeping requirements) to Sec.  2G2.5 (Recordkeeping Offenses Involving 
the Production of Sexually Explicit Materials; Failure to Provide 
Required Marks in Commercial Electronic Email). For offenses in which 
the defendant refused to allow an inspection of records in violation of 
18 U.S.C.

[[Page 4383]]

2257(f)(5) or Sec.  2257A, the Commission requests comment regarding 
whether it should provide an application note that provides for an 
upward departure in such cases or instructs the court to apply Sec.  
3C1.1.
    6. The Commission requests comment regarding the proposed new 
guideline in Sec.  2G2.6 that would implement 18 U.S.C. 2252A(g). 
Specifically, the Commission requests comment regarding the appropriate 
base offense level for this new guideline given that the statute 
provides a mandatory minimum term of imprisonment of 20 years. 
Additionally, the proposed specific offense characteristics are 
targeted to offense conduct involving minors. Section 1591 is included 
as one of the predicate offenses under 18 U.S.C. 2252A(g) but it is not 
limited to offenses committed against minors. The Commission requests 
comment regarding whether it should provide a specific offense 
characteristic, or expand a proposed specific offense characteristic, 
to cover all 18 U.S.C. 1591 offenses. With respect to enhancements, is 
there additional conduct for which the Commission should consider 
providing specific offense characteristics? If so, for what conduct, 
and what is an appropriate increase for that conduct? The Commission 
further requests comment regarding whether this guideline should 
provide a decrease if the defendant's conduct was limited to possession 
or receipt of material involving the sexual exploitation of a minor and 
the defendant did not intend to traffic in or distribute such material.
    The Commission also requests comment regarding whether it should 
provide an enhancement for the use of a computer or interactive an 
interactive computer service and if so, what would be an appropriate 
increase for such conduct. The Commission specifically asks whether 
this enhancement is appropriate if the base offense level is at the 
lower end of the proposed options.
    7. The proposed amendment adds to the misleading domain name 
enhancement in subsection (b)(5) of Sec.  2G3.1 the use of embedded 
words or digital images in the source code of a Web site to deceive a 
minor into viewing matter that would be harmful to the minor. The 
Commission requests comment regarding whether it also should include an 
enhancement if the offense involved the use of embedded words or 
digital images to deceive a person other than a minor into viewing 
obscenity. If so, how many levels would be appropriate for such an 
enhancement? For example, should the Commission provide two levels for 
such an enhancement and four levels if the offense deceived a minor 
into viewing harmful matter?
    8. The Commission requests comment regarding the interaction of the 
age enhancement in Sec.  2G1.3(b)(5) and the proposed base offense 
levels. The proposed amendment presents options for reducing the age 
enhancement in Sec.  2G1.3(b)(5) to as far as four levels. Should the 
Commission consider providing an increase of less than eight levels in 
any case in which the age of the minor victim is taken into account by 
the base offense level (because age is an element of the offense)? For 
example, should four levels be applied if the base offense level takes 
into account the age of the minor and eight levels be applied if the 
base offense level does not take age into account?
    9. The Commission requests comment regarding the interaction of 
Sec.  2G1.3 and Sec.  2A3.1, particularly with respect to the 
application of the cross reference in Sec.  2G1.3(c)(3) and the 
proportionality of resulting offenses levels for a case involving a 
minor who had not attained the age 12 years. Do any of the proposed 
offense levels in either guideline need to be increased in order to 
provide proportionality between Sec. Sec.  2G1.3 and 2A1.3 in cases 
involving a minor who had not attained the age of 12 years, taking into 
account the new mandatory minimum penalties provided for offenses 
referenced to these two guidelines? For example, the proposed amendment 
provides a base offense level of [28][30] if the defendant was 
convicted under 18 U.S.C. 2422(b) or Sec.  2423(a). If Sec.  
2G1.3(c)(3) applies because, for example, the offense involved 
interstate travel with a minor who had not attained the age of 12 
years, the court would apply Sec.  2A3.1 and the resulting offense 
level under that guideline would be 34 (BOL of 30 plus 4 levels for age 
of minor). If the court does not apply the cross reference and stays in 
Sec.  2G1.3, the resulting offense level would be [36][38] (BOL of 
[28][30] plus 8 levels for the age of the minor). Are these offense 
levels appropriate given new mandatory minimum penalties and offense 
levels currently provided in Sec.  2G1.3 and Sec.  2A3.1, respectively, 
or should the Commission provide higher base offense levels in Sec.  
2G1.3?

3. Technical and Clarifying Amendments to the Sentencing Guidelines

    Synopsis of Proposed Amendment: This proposed amendment makes 
various technical and conforming changes to the guidelines.
    Specifically, Part A of the proposed amendment corrects 
typographical errors in Sec. Sec.  2B1.1(b)(13)(C), 2D1.11(a), 2K2.1 
(Application Note 14), and 2L1.1(b)(1). The proposed amendment also 
updates Appendix A by eliminating an outdated statutory reference and 
by including a statutory reference for 18 U.S.C. 931 to 2K2.6 
(Possessing, Purchasing, or Owning Body Armor by Violent Felons).
    In Part B, the proposed amendment addresses application of the 
grouping rules when a defendant is sentenced on multiple counts 
contained in different indictments as, for example, when a case is 
transferred to another district for purposes of sentencing, pursuant to 
Fed. R. Crim.P. 20(a). Section 3D1.1 (Procedure for Determining Offense 
Level on Multiple Counts) is silent as to this issue. The four circuits 
that have addressed the issue have concluded that the grouping rules 
apply when a defendant is sentenced on multiple indictments. See United 
States v. Hernandez Coplin, 24 F.3d 312 (1st Cir. 1994) (holding that 
Sec.  5G1.2's rules regarding sentences imposed at the same time for 
different indictments must apply to Chapter 3, Part D); United States 
v. Herula, 464 F.3d 1132 (10th Cir. 2006) (holding that Sec.  5G1.2 
required that Sec.  3D1.4 apply in cases involving multiple counts in 
separate indictments); United States v. Tolbert, 306 F.3d 244 (5th Cir. 
2002) (holding that Sec.  5G1.2 requires that total punishment be 
determined by the grouping principles from Chapter 3, Part D, thus 
requiring grouping for counts contained in different indictments). See 
also United States v. Greer, 91 F.3d 996 (7th Cir. 1996) (holding that 
the district court had erred by not using Sec.  5G1.2 to sentence the 
defendant, who was sentenced for two separate crimes within minutes of 
each other).
    The proposed amendment adopts the reasoning of these cases and 
clarifies that the grouping rules apply not only to multiple counts in 
the same indictment but also to multiple counts contained in different 
indictments when a defendant is sentenced on the indictments 
simultaneously. The proposed amendment provides clarifying language in 
the Introductory Commentary of Chapter Three, Part D, as well as in 
Sec.  3D1.1. The proposed language is the same language that currently 
is provided in *5G1.2 (Sentencing on Multiple Counts of Conviction) and 
relied on by the courts cited in the previous paragraph.

Proposed Amendment

    Part A:

[[Page 4384]]

    Section 2B1.1(b)(13)(C) is amended by striking ``(12)'' and 
inserting ``(13)''.
    Section 2D1.11(a) is amended by striking ``(e)'' and inserting 
``(d)''.
    The Commentary to Sec.  2K2.1 captioned ``Application Notes'' is 
amended in Note 14 in subdivision (B) by striking ``(b)(1)'' and 
inserting ``(b)(6)''.
    Section 2L1.1(b)(1)(B) is amended by striking ``(2)'' and inserting 
``(3)''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. 930 the following new line:

``18 U.S.C. 931-2K2.6'';

and by striking the following:

``18 U.S.C. 3174-2J1.7''.

    Part B:
    Chapter 3, Part D is amended in the Introductory Commentary in the 
first paragraph by inserting ``These rules apply to multiple counts of 
conviction (1) contained in the same indictment or information, or (2) 
contained in different indictments or informations for which sentences 
are to be imposed at the same time or in a consolidated proceeding.'' 
after ``is convicted.''.
    The Commentary to Sec.  3D1.1 captioned ``Application Note'' is 
amended by striking ``Note'' and inserting ``Notes''; by redesignating 
Note 1 as Note 2; and by inserting the following as new Note 1:
    ``1. In General.--For purposes of sentencing multiple counts of 
conviction, counts can be (A) contained in the same indictment or 
information; (B) contained in different indictments or informations for 
which sentences are to be imposed at the same time or contained in a 
consolidated proceeding.''.

4. Miscellaneous Laws

    Synopsis of Proposed Amendment: This is a two-part amendment that 
implements recently enacted legislation. Part One of this proposed 
amendment operates to support the Respect for America's Fallen Heroes 
Act, Public Law 109-228, which created a new offense in 38 U.S.C. 2413, 
prohibiting certain demonstrations at Arlington National Cemetery and 
at cemeteries under control of the National Cemetery Administration. 
The penalty for a violation of 38 U.S.C. 2413 is imprisonment of not 
more than one year, a fine, or both.
    The proposed amendment references this new crime to Sec.  2B2.3, 
because the new crime shares with other crimes that are referred to the 
trespass guideline the basic element of unauthorized access to 
particular federal land or site. The proposed amendment expands the 
two-level enhancement in Sec.  2B2.3(b)(1) to include Arlington 
National Cemetery or a cemetery under the control of the National 
Cemetery Association. (Arlington National Cemetery is, of course, 
considered a national cemetery, but it is not maintained by the 
National Cemetery Administration. Rather, it is maintained by the 
Department of the Army and should be named separately in the 
Guidelines.).
    Part Two of this proposed amendment operates to support the 
Violence Against Women and Department of Justice Reauthorization Act of 
2005 (VAWA), Public Law 109-162. VAWA includes the International 
Marriage Broker Regulation Act of 2005 (IMBRA), which requires marriage 
brokers to collect background information about United States clients 
and places limitations on the marriage brokers' sharing of information 
about foreign national clients. A violation of 8 U.S.C. 1375a(d)(3)(C) 
is subject to a misdemeanor conviction with a base offense level of 6. 
The felony offenses covered under 8 U.S.C. Sec.  1375a(d)(5)(B) will 
receive a base offense level of 9.
    The proposed amendment refers the new offense to Sec.  2H3.1 
(Interception of Communications; Eavesdropping; Disclosure of Tax 
Return Information) and expands the heading of the guideline to include 
the unauthorized disclosure of private information. Currently, the 
guideline covers the wrongful disclosure of certain tax information. In 
addition to expanding the guideline to cover IMBRA offenses, the 
Commission also may wish to consider referencing other similar privacy 
statutes to this guideline, such as 18 U.S.C. 1905 (Disclosure of 
confidential information generally (by an officer or employee of the 
U.S.)), 42 U.S.C. 405(c)(2)(C)(viii)(I)-(IV) (pertaining to the 
unauthorized willful disclosure of social security account numbers and 
related information), and 42 U.S.C. 1320d(6) (wrongful disclosure of 
individually identifiable heath information), which currently are not 
included in Appendix A. The proposed amendment brackets language that 
would include the wrongful disclosure of confidential information 
covered by these additional statutes.
    Following the proposed amendment is an issue for comment regarding 
implementation of 31 U.S.C. 5363, which prohibits the acceptance of any 
financial instrument for unlawful Internet gambling. The offense was 
created by the Safety and Accountability for Every Port Act (SAFE Port 
Act), Public Law 109-347.

Proposed Amendment

I. Respect for America's Fallen Heroes Act (Pub. L. 109-228)
    Section 2B2.3(b)(1) is amended by redesignating subdivision (F) as 
subdivision (G); and by inserting ``(F) at Arlington National Cemetery 
or a cemetery under the control of the National Cemetery 
Administration;'' after ``residence;''.
    The Commentary to Sec.  2B2.3 captioned ``Statutory Provisions'' is 
amended by inserting ``38 U.S.C. 2413;'' after ``1036;''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 38 U.S.C. 787 the following new line:

``38 U.S.C. 2413--2B2.3''.
II. Violence Against Women and Department of Justice Reauthorization 
Act of 2005 (Pub. L. 109-162)
    Section 2H3.1 is amended in the heading by striking ``Tax Return 
Information'' and inserting ``Certain Personal Information''.
    Section 2H3.1(a)(2) is amended by inserting ``8 U.S.C. 
1375(d)(3)(C); 18 U.S.C. 1905;'' after ``convicted of''; and inserting 
``[; 42 U.S.C. 405(c)(2)(C)(viii)(I)-(IV); or 42 U.S.C. 1320d-6]'' 
after ``7216''.
    The Commentary to Sec.  2H3.1 captioned ``Statutory Provisions'' is 
amended by inserting ``8 U.S.C. 1375(d)(3)(C), (d)(5)(B);'' before ``18 
U.S.C.''; by inserting ``Sec.  1905,'' before ``2511''; and by 
inserting ``[42 U.S.C. 405(c)(2)(C)(viii)(I)-(IV); 42 U.S.C. 1320d-
6;]'' after ``7216;''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 8 U.S.C. 1328 the following new line:

``8 U.S.C. 1375a--2H3.1'';
by inserting after the line referenced to 42 U.S.C. 300i-l the 
following new line:
``[42 U.S.C. 405(c)(2)(C)(viii)(I)-(IV)--2H3.1'']; and
by inserting after the line referenced to 42 U.S.C. 1320a-7b the 
following new line:
``[42 U.S.C. 1320d-6--2H3.1]''.
    Issue for Comment:
    The SAFE Port Act, Pub. L. 109-347, created a new offense in 31 
U.S.C. 5363, prohibiting the acceptance of any financial instrument for 
unlawful Internet gambling Section 5366 of title 31, United States 
Code, and providing a statutory maximum term of imprisonment of not 
more than 5 years. The Commission requests comment regarding how it 
should implement the new offense. Specifically, should the

[[Page 4385]]

offense be referenced to Sec.  2E3.1 (Gambling Offenses), which 
provides a base offense level of 6 or, alternatively, a base offense 
level of 12, if the offense was (A) engaging in a gambling business; 
(B) transmission of wagering information; or (C) committed as part of, 
or to facilitate, a commercial gambling operation. If the Commission 
should reference this statute to Sec.  2E3.1, are there additional 
amendments that should be made to this guideline in order to implement 
fully the new offense? For example, should the Commission provide a 
cross reference to either Sec.  2S1.1 (Laundering of Monetary 
Instruments) or Sec.  2S1.3 (Structuring Transactions to Evade 
Reporting Requirements) if the offense involves conduct more adequately 
covered by either of those guidelines? Alternatively, should 31 U.S.C. 
5363 be referenced to either Sec.  2S1.1 or Sec.  2S1.3 instead of 
Sec.  2E3.1, and if so, what other modifications, if any, should be 
made in those guidelines to implement fully the new offense?

5. Re-Promulgation of Emergency Intellectual Property Amendment

    Synopsis of Proposed Amendment: This proposed amendment re-
promulgates the emergency amendment, effective September 12, 2006, that 
responded to the directive contained in section 1(c) of the Stop 
Counterfeiting in Manufactured Goods Act, Pub. L. 109-181. The 
directive, which required the Commission to promulgate an amendment 
under emergency amendment authority by September 12, 2006, instructs 
the Commission to ``review, and if appropriate, amend the Federal 
sentencing guidelines and policy statements applicable to persons 
convicted of any offense under section 2318 or 2320 of title 18, United 
States Code.'' The directive further provides that the Commission 
shall: Determine whether the definition of ``infringement amount'' set 
forth in application note 2 of section 2B5.3 of the Federal sentencing 
guidelines is adequate to address situations in which the defendant has 
been convicted of one of the offenses [under section 2318 or 2320 of 
title 18, United States Code] and the item in which the defendant 
trafficked was not an infringing item but rather was intended to 
facilitate infringement, such as an anti-circumvention device, or the 
item in which the defendant trafficked was infringing and also was 
intended to facilitate infringement in another good or service, such as 
a counterfeit label, documentation, or packaging, taking into account 
cases such as U.S. v. Sung, 87 F.3d 194 (7th Cir. 1996).
    The emergency amendment added subdivision (vii) to Application Note 
2(A) of Sec.  2B5.3 (Criminal Infringement of Copyright or Trademark) 
to provide that the infringement amount is based on the retail value of 
the infringed item in a case under 18 U.S.C. 2318 or 2320 that involves 
a counterfeit label, patch, sticker, wrapper, badge, emblem, medallion, 
charm, box, container, can, case, hangtag, documentation, or packaging 
of any type or nature (I) that has not been affixed to, or does not 
enclose or accompany a good or service; and (II) which, had it been so 
used, would appear to a reasonably informed purchaser to be affixed to, 
enclosing or accompanying an identifiable, genuine good or service. In 
such a case, the ``infringed item'' is the identifiable, genuine good 
or service. This proposed amendment would re-promulgate this 
application note as a permanent amendment to Sec.  2B5.3.
    The emergency amendment did not address the portion of the 
directive pertaining to anti-circumvention devices. This proposed 
amendment addresses that portion of the directive in two ways. First, 
the proposed amendment presents two options for addressing the 
trafficking in devices that circumvent a technological measure. Option 
One expands the specific offense characteristic in Sec.  2B5.3(b)(3) to 
include convictions under 17 U.S.C. 1201(b) for trafficking in devices 
that circumvent a technological measure. Currently, Sec.  2B5.3(b)(3) 
provides a two-level enhancement and a minimum offense level of 12 for 
cases involving the manufacture, importation, or uploading of 
infringing items. The purpose of the enhancement in Sec.  2B5.3(b)(3) 
is to provide greater punishment for defendants who put infringing 
items into the stream of commerce, thereby enabling other individuals 
to infringe the copyright or trademark. See App. C (Amendment 594, 
effective Nov. 1, 2000). A defendant who traffics in devices that 
circumvent a technological measure similarly enables others to infringe 
a copyright and arguably warrants greater punishment. The minimum 
offense level guarantees the defendant will be in Zone D of the 
Sentencing Table. Under this option, the minimum offense level also 
works as a proxy for the infringement amount.
    Options Two and Three address trafficking in devices used to 
circumvent a technological measure by providing a special rule under 
Application Note 1 for determining the infringement amount. Option Two 
adds trafficking cases to the note pertaining to the retail value of 
the infringing item. Under this option, the court would use the retail 
value of the device (the ``infringing item'') multiplied by the number 
of devices involved in the offense. Option Three is similar but 
provides two alternative measures under a new Application Note 1(C). It 
instructs the court to determine the infringement amount by using the 
greater of two calculations: (i) The retail value of the device 
multiplied by the number of such devices; and (ii) the number of such 
devices multiplied by the price a person legitimately using the device 
to access or make use of a copyrighted work would have paid.
    All options use the statutory definition of ``circumvent a 
technological measure'' found in 17 U.S.C. 1201(a)(3)(A), which is ``to 
descramble a scrambled work, to decrypt an encrypted work, or otherwise 
to avoid, bypass, remove, deactivate, or impair a technological 
measure, without the authority of the copyright owner.''
    Second, the proposed amendment adds an application note regarding 
the determination of the infringement amount in cases under 17 U.S.C. 
1201 and 1204 in which the defendant circumvented a technological 
measure. In such an offense, the ``retail value of the infringed item'' 
is the price the user would have paid to access lawfully the 
copyrighted work, and the ``infringed item'' is the accessed work.
    Two issues for comment follow the proposed amendment. The first 
issue is regarding whether the Commission should amend Sec.  2B5.3 to 
provide a downward departure for cases in which the infringement amount 
overstates the seriousness of the offense. The second issue is 
regarding the interaction between the proposed provisions on 
circumventing a technological measure and application of Sec.  3B1.3 
(Abuse of Position of Trust or Use of Special Skill).

Proposed Amendment

    [Option 1:
    Section 2B5.3 is amended by striking subsection (b)(3) and 
inserting the following:
    ``(3) If the (A) offense involved the manufacture, importation, or 
uploading of infringing items; or (B) defendant was convicted under 17 
U.S.C. 1201(b) and 1204 for trafficking in devices used to circumvent a 
technological measure, increase by 2 levels. If the resulting offense 
level is less than level 12, increase to level 12.''.]
    The Commentary to Sec.  2B5.3 captioned ``Statutory Provisions'' is 
amended by inserting ``, 1201, 1204'' after ``506(a)''.
    The Commentary to Sec.  2B5.3 captioned ``Application Notes'' is 
amended in Note 1 by inserting after ``Definitions.--

[[Page 4386]]

For purposes of this guideline:'' the following:
    `` `Circumvent a technological measure' has the meaning given that 
term in 17 U.S.C. 1201(a)(3)(A).''.
    The Commentary to Sec.  2B5.3 captioned ``Application Notes'' is 
amended in Note 2(A) by adding at the end the following:
    ``(vii) A case under 18 U.S.C. 2318 or 2320 that involves a 
counterfeit label, patch, sticker, wrapper, badge, emblem, medallion, 
charm, box, container, can, case, hangtag, documentation, or packaging 
of any type or nature (I) that has not been affixed to, or does not 
enclose or accompany a good or service; and (II) which, had it been so 
used, would appear to a reasonably informed purchaser to be affixed to, 
enclosing or accompanying an identifiable, genuine good or service. In 
such a case, the `infringed item' is the identifiable, genuine good or 
service.
    (viii) A case under 17 U.S.C. 1201 and 1204 in which the defendant 
circumvented a technological measure. In such an offense, the `retail 
value of the infringed item' is the price the user would have paid to 
access lawfully the copyrighted work, and the `infringed item' is the 
accessed work.''.
    [Option 2:
    The Commentary to Sec.  2B5.3 captioned ``Application Notes'' is 
amended in Note 2 in subdivision (B) by adding at the end the 
following:
    ``This note also applies in a case involving the trafficking of 
devices used to circumvent a technological measure in violation of 17 
U.S.C. 1201 and 1204. In such a case the `infringing item' is the 
device.''.]
    [Option 3:
    The Commentary to Sec.  2B5.3 captioned ``Application Notes'' is 
amended in Note 2 by redesignating subdivisions (C) through (E) as 
subdivisions (D) through (F), respectively; and by inserting after 
subdivision (B) the following:
    ``(C) Determination of Infringement Amount in Cases Involving 
Trafficking in Devices Used to Circumvent a Technological Measure.--In 
a case in which the defendant is convicted under 17 U.S.C. Sec. Sec.  
1201(b) and 1204 for trafficking in a device used to circumvent a 
technological measure, the infringement amount is the greater of the 
following:
    (i) The number of such devices multiplied by the retail value of 
the device; or
    (ii) The number of such devices multiplied by the price a person 
legitimately using the device to access or make use of a copyrighted 
work would have paid.''.]
    The Commentary to Sec.  2B5.3 captioned ``Background'' is amended 
by adding at the end the following:
    ``[Option One: Subsection (b)(3)(B) and] Application Notes 
1(a)(vii) and [Option Two: (viii)][Option Three: 1(C)] implement the 
directive in section 1(c) of Public Law 109-181.''.
    Issues for Comment:
    1. The Commission requests comment regarding whether it should 
provide a downward departure provision for cases in which the 
infringement amount overstates the seriousness of the offense.
    2. The Commission requests comment regarding the interaction of 
Application Note 4 pertaining to the application of Sec.  3B1.3 (Abuse 
of Position of Trust or Use of Special Skill). This application note, 
added in 2000 as part of the Commission's implementation of the No 
Electronic Theft Act, provides that an adjustment under Sec.  3B1.3 
shall apply in any case in which the defendant de-encrypted or 
otherwise circumvented a technological security measure to gain initial 
access to an infringed item. The Commission has received comment that 
not every de-encryption or circumvention case involves a ``special 
skill'' as that term is defined in Sec.  3B1.3 (``a skill not possessed 
by members of the general public and usually requiring substantial 
education, training or licensing''). Additionally, the proposed 
amendment specifically addresses cases involving the circumvention of a 
technological measure, either in the form of trafficking in devices 
used to circumvent a technological measure or in the determination of 
infringement amount in cases involving actual circumvention. Should the 
Commission delete Application Note 4 because the skill, whatever 
degree, needed to de-encrypt or circumvent a technological measure 
would be taken into account in Sec.  2B5.3? As an alternative, should 
the Commission modify the note to emphasize that Sec.  3B1.3 applies 
only when the defendant's skill in de-encrypting or otherwise 
circumventing a technological measure was one not possessed by the 
general public, as contemplated by Sec.  3B1.3?

6. Terrorism

    Synopsis of Proposed Amendment: This multi-part proposed amendment 
implements the USA PATRIOT Improvement and Reauthorization Act of 2005 
(the ``USA PATRIOT Act''), Pub. L. 109-177, and the Department of 
Homeland Security Appropriations Act, 2007 (the ``Homeland Security 
Act''), Pub. L. 109-295.
    Part I of the proposed amendment addresses section 122 of the 
PATRIOT Act, which created a new offense in 21 U.S.C. 960a covering 
narco-terrorism. This new offense prohibits engaging in conduct that 
would be covered under 21 U.S.C. 841(a) if committed under the 
jurisdiction of the United States, knowing or intending to provide, 
directly or indirectly, anything of pecuniary value to any person or 
organization that has engaged or engages in terrorist activity (defined 
in section 212(a)(3)(B) of the Immigration and Nationality Act) or 
terrorism (defined in section 140(d)(2) of the Foreign Relations 
Authorization Act). The penalty is not less than twice the minimum 
punishment under 21 U.S.C. 841(b)(1) and not more than life. Section 
960a also provides a mandatory term of supervised release of at least 5 
years.
    The proposed amendment presents two options for addressing this new 
offense, although under either option the sentence determination is the 
same. Option 1 would amend Sec.  2D1.1 (Unlawful Manufacturing, 
Importing, Exporting, or Trafficking (Including Possession with Intent 
to Commit These Offenses); Attempt or Conspiracy) to provide a new base 
offense level of 6 plus the offense level specified in the Drug 
Quantity Table if the defendant was convicted under 21 U.S.C. 960a (see 
proposed Sec.  2D1.1(a)(4)). Option 2 would create a new guideline in 
Sec.  2D1.14 (Narco-Terrorism) that would add 6 levels to the offense 
level determined under Sec.  2D1.1. Both options bracket the exclusion 
of the mitigating role cap in Sec.  2D1.1(a)(3) and the safety valve 
reduction in Sec.  2D1.1(b)(9) to highlight this discussion point for 
the Commission. The proposed amendment also provides a corresponding 
amendment to Appendix A (Statutory Index).
    Part II of the proposed amendment addresses section 551 of the 
Homeland Security Act, which created a new offense in 18 U.S.C. 554 
regarding the construction of border tunnels and subterranean passages 
that cross the international boundary between the United States and 
another country. (The USA PATRIOT Act also amended title 18, United 
States Code, to provide a new offense in 18 U.S.C. 554 for smuggling 
goods from the United States. For purposes of presenting proposed 
statutory references, the proposed amendments to Appendix A (Statutory 
Index) for border tunnels is presented in Part II and the proposed 
amendments to Appendix A (Statutory Index) for smuggling goods from the 
United States is presented in Part IV.) Section 554(a) prohibits the 
construction or financing of such tunnels and passages and provides a 
statutory maximum term of imprisonment of 20 years. Section

[[Page 4387]]

554(b) prohibits the knowing or reckless disregard of the construction 
on land the person owns or controls and provides a statutory maximum 
term of imprisonment of 10 years. Section 554(c) prohibits the use of 
the tunnels to smuggle an alien, goods (in violation of 18 U.S.C. 545), 
controlled substances, weapons of mass destruction (including 
biological weapons), or a member of a terrorist organization (defined 
in 18 U.S.C. 2339B(g)(6)) and provides a penalty of twice the maximum 
term of imprisonment that would have otherwise been applicable had the 
unlawful activity not made use of the tunnel or passage.
    Section 551(c) of the Homeland Security Act also directs the 
Commission, under its regular amendment authority, to promulgate or 
amend the guidelines to provide for increased penalties for persons 
convicted of offenses under 18 U.S.C. 554. In carrying out this 
directive, the Commission ``shall--
    (A) Ensure that the sentencing guidelines, policy statements, and 
official commentary reflect the serious nature of the offenses 
described in section 554 of title 18, United States Code, and the need 
for aggressive and appropriate law enforcement action to prevent such 
offenses;
    (B) Provide adequate base offense levels for offenses under such 
section;
    (C) Account for any aggravating or mitigating circumstances that 
might justify exceptions, including--
    (i) The use of a tunnel or passage described in subsection (a) of 
such section to facilitate other felonies; and
    (ii) The circumstances for which the sentencing guidelines 
currently provide applicable sentencing enhancements;
    (D) Ensure reasonable consistency with other relevant directives, 
other sentencing guidelines, and statutes;
    (E) Make any necessary and conforming changes to the sentencing 
guidelines and policy statements; and
    (F) Ensure that the sentencing guidelines adequately meet the 
purposes of sentencing set forth in section 3553(a)(2) of title 18, 
United States Code.
    The proposed amendment provides a new guideline in Sec.  2X7.1 
(Border Tunnels and Subterranean Passages) for this offense. If the 
defendant was convicted under 18 U.S.C. 554(a) or (c), the base offense 
level would be 4 plus the offense level applicable to the underlying 
smuggling offense. If the defendant was convicted under 18 U.S.C. 
554(b), the proposed amendment provides a base offense level of 8.
    Part III of the proposed amendment addresses other new offenses 
created by the PATRIOT Act. Based on an assessment of similar offenses 
already covered by the relevant guidelines, the proposed amendment 
provides for the following:
    (A) The new offense in 18 U.S.C. 554, pertaining to smuggling of 
goods from the United States is referenced to Sec. Sec.  2B1.5 
(Cultural Heritage), 2M5.2 (Exportation of Arms, Munitions, or Military 
Equipment or Services Without Required Validated Export License), and 
2Q2.1 (Offenses Involving Fish, Wildlife, and Plants).
    (B) The new offense in 18 U.S.C. 2282A, pertaining to mining of 
U.S. navigable waters, is referenced to Sec. Sec.  2A1.1 (First Degree 
Murder), 2A1.2 (Second Degree Murder), 2B1.1 (Fraud, Theft, and 
Property Damage), 2K1.4 (Arson; Property Damage by Use of Explosives), 
and 2X1.1 (Attempt, Solicitation, or Conspiracy (Not Covered by a 
Specific Offense Guideline) ). The proposed amendment also adds vessel, 
maritime facility, and a vessel's cargo to Sec.  2K1.4(a)(1) and (a)(2) 
to cover conduct described in 18 U.S.C. 2282A. The definitions provided 
for vessel, maritime facility, and aids to maritime navigation come 
from title 33 of the Code of Federal Regulations pertaining to the 
United States Coast Guard, specifically Navigation and Navigable 
Waters.
    Section 2282B, pertaining to violence against maritime navigational 
aids, is referenced to Sec. Sec.  2B1.1, 2K1.4, and 2X1.1. Section 
2K1.4(a) is amended to provide a new base offense level of [16] [if the 
offense involved the destruction of or tampering with aids to maritime 
navigation][if the offense of conviction is 18 U.S.C. 2282B].
    (C) The new offense in 18 U.S.C. 2283 pertaining to transporting 
biological and chemical weapons is referenced to Sec. Sec.  2K1.3 
(Unlawful Receipt, Possession, or Transportation of Explosive 
Materials; Prohibited Transactions Involving Explosive Materials), 
2M5.3 (Providing Material Support or Resources to Designated Foreign 
Terrorism Organizations of For a Terrorist Purpose), 2M6.1 (Nuclear, 
Biological, and Chemical Weapons, and Other Weapons of Mass 
Destruction). The new offense in 18 U.S.C. 2284 pertaining to 
transporting terrorists is referenced to Sec. Sec.  2M5.3, 2X2.1 
(Aiding and Abetting), and 2X3.1 (Accessory After the Fact).
    Part IV of the proposed amendment addresses two other statutes that 
were amended by the PATRIOT Act as follows:
    (A) Section 2341 of title 18, United States Code, which provides 
definitions for offenses involving contraband cigarettes and smokeless 
tobacco, was amended to reduce the number of contraband cigarettes 
necessary to violate the substantive offenses set forth in 18 U.S.C. 
2342 and 2344 from 60,000 to 10,000. The proposed amendment makes 
conforming changes to the background commentary of Sec.  2E4.1 
(Unlawful Conduct Relating to Contraband Cigarettes). The proposed 
amendment also expands the headings of Chapter Two, Part E, Subpart 4 
and Sec.  2E4.1 to include smokeless tobacco.
    (B) The Act increased the statutory maximum term of imprisonment 
for offenses covered by the International Emergency Economic Powers Act 
(50 U.S.C. 1705) from 10 years to 20 years to make penalties for these 
offenses commensurate with terrorist financing violations. The proposed 
amendment references 50 U.S.C. 1705 to Sec.  2M5.3 and also modifies 
the heading of the guideline to include ``specially designated global 
terrorist'' because it is another list identifying terrorists and 
terrorist organizations.
    Part V of the proposed amendment sets forth all of the proposed 
statutory references in Appendix A (Statutory Index) for the new 
offenses described in Parts III and IV.
    Part VI of the proposed amendment presents two issues for comment. 
The first requests comment regarding whether current guideline 
penalties are sufficient for increases in statutory maximum terms of 
imprisonment to 18 U.S.C. 545 and 549. The second issue for comment 
addresses a directive contained in the Violence Against Women and 
Department of Justice Reauthorization Act of 2005, Pub. L. 109-162, 
regarding a defendant who is convicted of a Federal offense while 
wearing or displaying insignia and uniform received in violation of 18 
U.S.C. 716.

Proposed Amendment

Part I Narco-Terrorism
    [Option 1:
    Section 2D1.1(a)(3) is amended by inserting before ``the offense 
level'' the following:
    ``[except if the defendant is convicted under 21 U.S.C. 960a,]''; 
and by striking the period at the end and inserting ``; or''.
    Section 2D1.1(a) is amended by inserting after subsection (a)(3) 
the following:
    ``(4) [4][6] plus the offense level specified in the Drug Quantity 
Table set forth in subsection (c) if the defendant was convicted under 
21 U.S.C. 960a.''.
    Section 2D1.1(b)(9) is amended by inserting before ``decrease by 
two levels.'' the following:

[[Page 4388]]

    ``[and the defendant was not convicted under 21 U.S.C. 960a,]''. 
[Use with Option to add 6 levels under proposed subsection (a)(4):
    The Commentary to Sec.  2D1.1 captioned ``Background'' is amended 
by inserting after the third paragraph the following:
    ``Section 960a of title 21, United States Code, provides that a 
defendant shall be sentenced to a term of imprisonment of not less than 
twice the minimum punishment under 21 U.S.C. 841(b)(1). Adding six 
levels to the offense level determined under the Drug Quantity Table 
for convictions under 21 U.S.C. 960a establishes a guideline range with 
a lower limit as close to twice the statutory minimum as possible; 
e.g., offense level 32 plus [6] levels provides a range of 235 to 293 
months, corresponding to a statutory minimum of 20 years or 240 
months.''.]
    [Option 2:
    Chapter 2, Part D, Subpart 1, is amended by adding at the end the 
following new guideline and accompanying commentary:
``Sec.  2D1.14.--Narco-Terrorism
    (a) Base Offense Level: [4][6] plus the offense level from Sec.  
2D1.1 applicable for the underlying offense[, except that Sec.  
2D1.1(a)(3) and (b)(9) shall not apply].
Commentary
    Statutory Provision: 21 U.S.C. 960a.
    Application Note:
    1. In General.--The base offense level is determined using the Drug 
Quantity Table in Sec.  2D1.1(c) and any appropriate specific offense 
characteristics in Sec.  2D1.1(b)(1) through (b)(8).
    Background: This guideline implements 21 U.S.C. Sec.  960a, which 
provides that a defendant shall be sentenced to a term of imprisonment 
of not less than twice the minimum punishment under 21 U.S.C. Sec.  
841(b)(1). [Use the following with Option to add six levels under 
subsection (a): Adding six levels to the offense level determined under 
Sec.  2D1.1 establishes a guideline range with a lower limit as close 
to twice the statutory minimum as possible; e.g., offense level 32 plus 
6 levels provides a range of 235 to 293 months, corresponding to a 
statutory minimum of 20 years or 240 months.].'']

    Appendix A (Statutory Index) is amended by inserting after the 
line referenced to 21 U.S.C. Sec.  960(d)(7) the following:

``21 U.S.C. Sec.  960a--[Option 1: 2D1.1][Option 2: 2D1.14]''.
Part II--Border Tunnels
    Chapter 2, Part X is amended by adding at the end the following new 
guideline and accompanying commentary:
``7. OFFENSES INVOLVING BORDER TUNNELS
Sec.  2X7.1.--Border Tunnels and Subterranean Passages
    ``(a) Base Offense Level:
    (1) If the defendant was convicted under 18 U.S.C. Sec.  554(c), 
[4] plus the offense level applicable to the underlying smuggling 
offense. If the resulting offense level is less than level [16], 
increase to level [16].
    (2) [16], if the defendant was convicted under 18 U.S.C. Sec.  
554(a); or
    (3) [8][9], if the defendant was convicted under 18 U.S.C. Sec.  
554(b).
Commentary
    Statutory Provision: 18 U.S.C. 554.
    Application Note:
    1. Definition.--For purposes of this guideline, `underlying 
smuggling offense' means the smuggling offense the defendant committed 
through the use of the tunnel or subterranean passage.''.
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. 553(a)(2) the following:

``18 U.S.C. 554--2X7.1''.
Part III--Other New Offenses
    The Commentary to Sec.  2B1.5 captioned ``Statutory Provisions'' is 
amended by inserting ``554,'' before ``641,''.
    The Commentary to Sec.  2M5.2 captioned ``Statutory Provisions'' is 
amended by inserting ``18 U.S.C. 554,'' before ``22 U.S.C. 2778, 
2780.''.
    The Commentary to Sec.  2Q2.1 captioned ``Statutory Provisions'' is 
amended by inserting ``, 554'' after ``545''.
    The Commentary to Sec.  2Q2.1 captioned ``Background'' is amended 
by striking ``Sec.  545 where'' and inserting ``Sec. Sec.  545 and 554 
if''.
    Section 2K1.4 is amended in subsections (a)(1) and (a)(2) by 
striking ``a ferry,'' each place it appears and inserting ``a maritime 
facility, a vessel, or a vessel's cargo,''; by redesignating subsection 
(a)(3) as (a)(4); and by inserting the following after subsection 
(a)(2):
    ``(3) [16,] [if the offense involved the destruction of or 
tampering with aids to maritime navigation][if the offense of 
conviction is 18 U.S.C. 2282B]; or''.
    Section 2K1.4(b)(2) is amended by striking ``(a)(3)'' and inserting 
``(a)(4)''.
    The Commentary to Sec.  2K1.4 captioned ``Statutory Provisions'' is 
amended by inserting ``2282A, 2282B,'' after ``2275,''.
    The Commentary to Sec.  2K1.4 captioned ``Application Notes'' is 
amended in Note 1 by inserting after ``For purposes of this 
guideline:'' the following paragraph:
    `` `Aids to maritime navigation' means any device external to a 
vessel intended to assist the navigator to determine position or save 
course, or to warn of dangers or obstructions to navigation.''; by 
inserting after ``destructive device.'' the following paragraph:
    `` `Maritime facility' means any structure or facility of any kind 
located in, on, under, or adjacent to any waters subject to the 
jurisdiction of the United States and used, operated, or maintained by 
a public or private entity, including any contiguous or adjoining 
property under common ownership or operation.''; by striking 
``1993(c)(5)'' and inserting ``1992(d)(7)''; and by adding at the end 
the following:
    `` `Vessel' includes every description of watercraft or other 
artificial contrivance used, or capable of being used, as a means of 
transportation on water.''.
    The Commentary to Sec.  2K1.3 captioned ``Statutory Provisions'' is 
amended by inserting ``, 2283'' after ``1716''.
    The Commentary to Sec.  2M5.3 captioned ``Statutory Provisions'' is 
amended by inserting ``, 2283, 2284'' after ``18 U.S.C. Sec. Sec.  ''.
    Section 2M6.1 is amended in the heading by inserting ``Transport,'' 
after ``Transfer,''.
    The Commentary to Sec.  2M6.1 captioned ``Statutory Provisions'' is 
amended by inserting ``Sec.  2283,'' before ``2332a''.
    The Commentary to Sec.  2X2.1 captioned ``Statutory Provisions'' is 
amended by inserting ``2284,'' after ``2''.
    The Commentary to Sec.  2X3.1 captioned ``Statutory Provisions'' is 
amended by inserting ``2284,'' after ``1072,''.
Part IV--Other PATRIOT Act Statutes
    Chapter Two, Part E, Subpart Four is amended in the heading by 
adding at the end ``AND SMOKELESS TOBACCO''.
    Section 2E4.1 is amended in the heading by adding at the end ``and 
Smokeless Tobacco''.
    The Commentary to Sec.  2E4.1 captioned ``Background'' is amended 
by striking ``60,000'' and inserting ``10,000''.
    Section 2M5.3 is amended in the heading by inserting ``Specially 
Designated Global Terrorists, or'' after ``Organizations or''.
    The Commentary to Sec.  2M5.3 captioned ``Statutory Provisions'' is 
amended by striking the period at the end and inserting ``; 50 U.S.C. 
1705; 50 U.S.C. App. Sec.  1701.''.
    The Commentary to Sec.  2M5.3 captioned ``Application Notes'' is 
amended in Note 1 by adding at the end the following paragraph:
    `` `Specially designated global terrorist' means any foreign person 
or

[[Page 4389]]

person so designated pursuant to Executive Order 13224 of September 23, 
2001.''.
Part V--Statutory Index Amendments
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 18 U.S.C. Sec.  553(a)(2) the following:

``18 U.S.C. Sec.  554 2B1.5, 2M5.2, 2Q2.1'';
by inserting after the line referenced to 18 U.S.C. 2281 the following:
``18 U.S.C. Sec.  2282A--2A1.1, 2A1.2, 2B1.1, 2K1.4, 2X1.1
18 U.S.C. Sec.  2282B--2B1.1, 2K1.4, 2X1.1
18 U.S.C. Sec.  2283--2K1.3, 2M5.3, 2M6.1
18 U.S.C. Sec.  2284--2M5.3, 2X2.1, 2X3.1'';
in the line referenced to 18 U.S.C. Sec.  2339 by inserting ``2M5.3,'' 
before ``2X2.1'';
by inserting after the line referenced to 50 U.S.C. Sec.  783(c) the 
following:
``50 U.S.C. Sec.  1705--2M5.3''; and
in the line referenced to 50 U.S.C. App. Sec.  1701 by inserting ``, 
2M5.3'' after ``2M5.2''.
Part VI--Issues for Comment
    1. The USA PATRIOT Improvement and Reauthorization Act of 2005, 
Pub. L. 109-177 increased the statutory maximum terms of imprisonment 
for 18 U.S.C. 545 from 5 years to 20 years and for 18 U.S.C. 549 from 2 
years to 10 years. The guidelines currently reference 18 U.S.C. 545 
offenses to Sec. Sec.  2B1.5 (Cultural Heritage), 2Q2.1 (Offenses 
Involving Fish, Wildlife, and Plants), and 2T3.1 (Evading Import 
Duties; Smuggling). Section 549 offenses are referenced to Sec. Sec.  
2B1.1 (Theft, Fraud, and Property Damage) and 2T3.1. The Commission 
requests comment regarding whether the current referenced guidelines 
provide sufficient penalties for 18 U.S.C. 545 and 549 offenses in 
light of the increased statutory maximum terms of imprisonment. If not, 
how should the Commission amend these guidelines to provide adequate 
punishment?
    2. Part II of the proposed amendment creates a new guideline, Sec.  
2X7.1 (Border Tunnels and Subterranean Passages) to implement the new 
offense in 18 U.S.C. 554. The Commission requests comment regarding the 
proposed offense levels, specifically whether the offense levels for 
any of subsections ought to be higher than proposed, and if so, what 
would be appropriate offense levels for convictions under 18 U.S.C. 
554(a), (b), and (c), respectively?
    3. Section 1191(c) of Violence Against Women and Department of 
Justice Reauthorization Act of 2005, Pub. L. 109-162, directs the 
Commission to amend the guidelines ``to assure that the sentence 
imposed on a defendant who is convicted of a Federal offense while 
wearing or displaying insignia and uniform received in violation of 
section 716 of title 18, United States Code, reflects the gravity of 
this aggravating factor.'' Section 716, of title 18, United States 
Code, is a class B misdemeanor to which the guidelines do not apply. 
Notwithstanding, the Commission requests comment regarding how it 
should address this directive. For example, should the Commission 
provide a Chapter Three adjustment applicable in any case in which a 
uniform or insignia received in violation of 18 U.S.C. 716 was worn or 
displayed during the commission of the federal offense? If so, how many 
levels would be appropriate for such an adjustment? If not, what 
alternatives should the Commission consider? Alternatively, should the 
Commission amend Chapter Five, Part K (Departures) to provide a new 
upward departure provision for such cases? The Commission also requests 
comment regarding whether, instead of an adjustment or departure, the 
Commission should provide an application note, perhaps in Sec.  1B1.9 
(Class B or C Misdemeanors and Infractions), recognizing the directive 
but explaining that the guidelines do not apply to Class B or C 
misdemeanors.

7. Drugs

    Synopsis of Proposed Amendment: This proposed amendment addresses 
new offenses created by the USA PATRIOT Improvement and Reauthorization 
Act of 2005 (the ``PATRIOT Act''), Pub. L. 109-177, and the Adam Walsh 
Child Protection and Safety Act of 2006 (the ``Adam Walsh Act''), Pub. 
L. 109-248.
    First, the proposed amendment addresses 21 U.S.C. 865, which 
provides a mandatory consecutive sentence of not more than 15 years' 
imprisonment for any drug offense involving the smuggling of 
methamphetamine or any listed chemical while using a facilitated entry 
program for entry into the United States. The proposed amendment 
provides a new two-level enhancement in Sec. Sec.  2D1.1(b)(5) and 
2D1.11(b)(5) if the defendant is convicted under 21 U.S.C. 865. A 
proposed application note in both guidelines provides instruction as to 
how the court should impose a sentence in order to comply with the 
statutory requirement of a consecutive sentence.
    Second, the proposed amendment provides three options for 
addressing the new offense in 21 U.S.C. 841(g), which was created by 
the Adam Walsh Act. This offense prohibits the use of the Internet to 
distribute a date rape drug to any person, ``knowing or with reasonable 
cause to believe that--(A) the drug would be used in the commission of 
criminal sexual conduct; or (B) the person is not an authorized 
purchaser;'' The statute defines ``date rape drug'' as ``(i) gamma 
hydroxybutyric acid (GHB) or any controlled substance analogue of GHB, 
including gamma butyrolactone (GBL) or 1,4-butanediol; (ii) ketamine; 
(iii) flunitrazipam; or (iv) any substance which the Attorney General 
designates * * * to be used in committing rape or sexual assault.'' The 
penalty is not more than 20 years' imprisonment.
    Option One provides a new [two-] [four-]level enhancement in Sec.  
2D1.1(b)(9) if the defendant was convicted under 21 U.S.C. 841(g). 
Option Two focuses on the more serious conduct of distributing the drug 
knowing or having reason to believe it would be used to commit criminal 
sexual conduct. This option also requires a conviction under 21 U.S.C. 
841(g) but provides a four-level enhancement if the defendant knew or 
had reasonable cause to believe the drug would be used in the 
commission of criminal sexual conduct. Option Three adopts a tiered 
approach: If the defendant knew the drug was to be used to commit 
criminal sexual conduct, add six levels with a floor of 29; if the 
defendant had reasonable cause to believe the drug would be used to 
commit criminal sexual conduct, add three levels with a floor of 26; in 
all other cases involving a conviction under this section, that is to 
say, the defendant sold the drug to an unauthorized purchaser, add two 
levels. ``Criminal sexual conduct'' is defined as any offense covered 
by the criminal sexual abuse guidelines (Chapter 2, Part A, Section 3). 
(Section 841(g) of title 21, United States Code, does not define this 
term.)
    Third, the proposed amendment addresses the new offense in 21 
U.S.C. 860a, which provides a mandatory consecutive term of 
imprisonment of not more than 20 years for manufacturing, distributing, 
or possessing with the intent to manufacture or distribute, 
methamphetamine on a premises in which a minor is present or resides. 
Two options are presented. The first option recognizes that currently 
Sec.  2D1.1(b)(8) provides a six-level enhancement and a minimum 
offense level of 30, if the offense involved the manufacture of 
methamphetamine or amphetamine and the offense created a substantial 
risk of harm to the life of a minor or incompetent (the ``substantial 
risk of harm'' enhancement). The Commission added this provision in 
2000 in response to a very specific

[[Page 4390]]

congressional directive contained in the Methamphetamine Anti-
Proliferation Act of 2000, Pub. L. 106-310. See USSG App. C (amendments 
608 and 620 (effective Dec. 12, 2000, and Nov. 1, 2001, respectively)). 
To address the overlap of conduct covered by the substantial risk of 
harm enhancement and the new offense, the proposed amendment would 
apply in any case in which the defendant is convicted under 21 U.S.C. 
Sec.  860a and the substantial risk of harm enhancement does not apply. 
Thus, two levels will be applied in a case in which a minor is present, 
but in which the offense did not create a substantial risk of harm to 
the life of a minor. In any methamphetamine manufacturing case in which 
the government proves a substantial risk of harm to the life of a 
minor, the offense level will be increased by six levels and the 
defendant will be subject to a minimum offense level of 30. The second 
option, recognizing that manufacturing methamphetamine poses an 
inherent danger to minors, establishes an enhancement for manufacturing 
and possession with intent to manufacture that is separate and apart 
from proving substantial risk of harm to the life of the minor under 
existing Sec.  2D1.1(b)(8). Option Two adds six levels with a floor of 
29 if the defendant manufactured or possessed with intent to 
manufacture methamphetamine on premises where a minor resides or was 
present. If a defendant distributed or possessed with intent to 
distribute where a minor resides or was present, add three levels with 
a floor of 15.
    Fourth, the proposed amendment eliminates the offense level cap of 
20 for ketamine. Ketamine is a schedule III controlled substance. 
Currently, the Drug Quantity Table provides a maximum of level 20 for 
most schedule III substances because such substances are subject to a 
statutory maximum of 5 years. If a defendant is convicted under 21 
U.S.C. Sec.  860a for distributing ketamine, however, the defendant is 
subject to a statutory maximum of 20 years. Accordingly, the Drug 
Quantity Table in Sec.  2D1.1(c) is modified to allow for sentencing of 
21 U.S.C. 860a offenses involving quantities of ketamine corresponding 
to offense levels greater than level 20. The proposed amendment also 
provides a marihuana equivalency in Application Note 10 for ketamine (1 
unit of ketamine = 1 gram of marihuana).
    Fifth, the proposed amendment adds to Application Note 10 a new 
drug equivalency table for 1,4-butanediol (BD) and gamma butyrolactone 
(GBL), both of which are included in the definition of date rape drugs 
under 21 U.S.C. 841(g). Neither is a controlled substance. The proposed 
drug equivalency is 1 ml of BD or GBL equals 8.8 grams of marihuana.
    Sixth, the proposed amendment updates Appendix A (Statutory Index) 
to include references to the new offenses.
    Finally, issues for comment request input regarding the proposals 
addressing 21 U.S.C. 841(g), 860a, and 865.

Proposed Amendment

    Section 2D1.1(b) is amended by redesignating subdivisions (8) and 
(9) as subdivisions [Option 1 (21 U.S.C. 860a: (11) and (12), 
respectively] [Option 2 (21 U.S.C. 860a: (10) and (11), respectively]; 
and by redesignating subdivisions (5) through (7) as subdivisions (6) 
through (8), respectively; and by inserting after subdivision (4) the 
following:
    ``(5) If the defendant is convicted under 21 U.S.C. 865, increase 
by 2 levels.''.
    Section 2D1.1(b) is amended by inserting after subdivision (8), as 
redesignated by this amendment, the following:
    [Option 1 (21 U.S.C. 841(g)):
    ``(9) If the defendant was convicted under 21 U.S.C. 841(g), 
increase by [2][4] levels.''.]
    [Option 2 (21 U.S.C. 841(g)):
    ``(9) If the defendant was convicted under 21 U.S.C. 841(g) of 
knowing, or having reasonable cause to believe, that the drug would be 
used in the commission of criminal sexual conduct, increase by [4] 
levels.''.]
    [Option 3 (21 U.S.C. 841(g)):
    ``(9) (A) If the defendant committed the offense under 21 U.S.C. 
841(g)(1)(A) and (i) knew that the date rape drug was to be used to 
commit criminal sexual conduct, add 6 levels; if the offense level is 
less than 29, increase to 29; or (ii) had reasonable cause to believe 
that the drug would be used to commit criminal sexual conduct, add 3 
levels. If the offense level is less than 26, increase to 26.
    (B) If the defendant committed the offense under 21 U.S.C. 
841(g)(1)(B) and knew or had reasonable cause to believe that the buyer 
was not an authorized purchaser, increase by 2 levels.''.]
    [Option 1: (21 U.S.C. 860a):
    Section 2D1.1(b) is amended by inserting after subdivision (9), as 
amended by this amendment, the following:
    ``(10) If (A) the defendant was convicted under 21 U.S.C. 860a; and 
(B) subsection (b)(11)(C) does not apply, increase by 2 levels.'';
    and in subdivision (11), as redesignated by this amendment, by 
striking ``greater'' and inserting ``greatest''.]
    [Option 2: (21 U.S.C. 860a):
    Section 2D1.1 is amended in subsection (b)(10), as redesignated by 
this amendment, by striking ``greater'' and inserting ``greatest''; and 
by inserting after subdivision (C) the following:
    ``(D) (i) If (I) the defendant was convicted under 21 U.S.C. 860a; 
and (II) the offense involved the manufacturing or possession with 
intent to manufacture methamphetamine on premises in which an 
individual under the age of 18 years is present or resides, add [6] 
levels. If the resulting offense level is less than [29], increase to 
level [29]; or
    (ii) If (I) the defendant was convicted under 21 U.S.C. 860a; and 
(II) the offense involved the distribution or possession with intent to 
distribute methamphetamine on premises in which an individual under the 
age of 18 years is present or resides, increase by [2][3] levels. If 
the resulting offense level is less than [15], increase to [15]''.]
    Section 2D1.1(c)(1) is amended by inserting ``30,000,000 units or 
more of Ketamine;'' after the line referenced to ``Hashish Oil''.
    Section 2D1.1(c)(2) is amended by inserting ``At least 10,000,000 
but less than 30,000,000 units of Ketamine;'' after the line referenced 
to ``Hashish Oil''.
    Section 2D1.1(c)(3) is amended by inserting ``At least 3,000,000 
but less than 10,000,000 units of Ketamine;'' after the line referenced 
to ``Hashish Oil''.
    Section 2D1.1(c)(4) is amended by inserting ``At least 1,000,000 
but less than 3,000,000 units of Ketamine;'' after the line referenced 
to ``Hashish Oil''.
    Section 2D1.1(c)(5) is amended by inserting ``At least 700,000 but 
less than 1,000,000 units of Ketamine;'' after the line referenced to 
``Hashish Oil''.
    Section 2D1.1(c)(6) is amended by inserting ``At least 400,000 but 
less than 700,000 units of Ketamine;'' after the line referenced to 
``Hashish Oil''.
    Section 2D1.1(c)(7) is amended by inserting ``At least 100,000 but 
less than 400,000 units of Ketamine;'' after the line referenced to 
``Hashish Oil''.
    Section 2D1.1(c)(8) is amended by inserting ``At least 80,000 but 
less than 100,000 units of Ketamine;'' after the line referenced to 
``Hashish Oil''.
    Section 2D1.1(c)(9) is amended by inserting ``At least 60,000 but 
less than 80,000 units of Ketamine;'' after the line referenced to 
``Hashish Oil''.
    Section 2D1.1(c)(10) is amended by inserting ``At least 40,000 but 
less than 60,000 units of Ketamine;'' after the line

[[Page 4391]]

referenced to ``Hashish Oil''; and by inserting ``(except Ketamine)'' 
after ``Schedule III substances''.
    Section 2D1.1(c)(11) is amended by inserting ``At least 20,000 but 
less than 40,000 units of Ketamine;'' after the line referenced to 
``Hashish Oil''; and by inserting ``(except Ketamine)'' after 
``Schedule III substances''.
    Section 2D1.1(c)(12) is amended by inserting ``At least 10,000 but 
less than 20,000 units of Ketamine;'' after the line referenced to 
``Hashish Oil''; and by inserting ``(except Ketamine)'' after 
``Schedule III substances''.
    Section 2D1.1(c)(13) is amended by inserting ``At least 5,000 but 
less than 10,000 units of Ketamine;'' after the line referenced to 
``Hashish Oil''; and by inserting ``(except Ketamine)'' after 
``Schedule III substances''.
    Section 2D1.1(c)(14) is amended by inserting ``At least 2,500 but 
less than 5,000 units of Ketamine;'' after the line referenced to 
``Hashish Oil''; and by inserting ``(except Ketamine)'' after 
``Schedule III substances''.
    Section 2D1.1(c)(15) is amended by inserting ``At least 1,000 units 
but less than 2,500 units of Ketamine;'' after the line referenced to 
``Hashish Oil''; and by inserting ``(except Ketamine)'' after 
``Schedule III substances''.
    Section 2D1.1(c)(16) is amended by inserting ``At least 250 units 
but less than 1,000 units of Ketamine;'' after the line referenced to 
``Hashish Oil''; and by inserting ``(except Ketamine)'' after 
``Schedule III substances''.
    Section 2D1.1(c)(17) is amended by inserting ``Less than 250 units 
of Ketamine;'' after the line referenced to ``Hashish Oil''; and by 
inserting ``(except Ketamine)'' after ``Schedule III substances''.
    The Commentary to Sec.  2D1.1 captioned ``Statutory Provisions'' is 
amended by inserting ``(g), 860a, 865,'' after ``(3), (7),''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 10 in the ``Drug Equivalency Tables'' in the 
subdivision captioned ``Schedule III Substances'' by inserting in the 
heading ``(except ketamine)'' after ``Substances'';

by adding after the subdivision captioned ``Schedule III Substances'' 
the following new subdivision:

``Ketamine

1 unit of ketamine = 1 gm of marihuana'';

and by adding after the subdivision captioned ``List I Chemicals 
(relating to the manufacture of amphetamine or methamphetamine)'' the 
following new subdivision: ``Date Rape Drugs (except flunitrazipam, 
GHB, or ketamine)

1 ml of 1,4-butanediol = 8.8 gm marihuana

1 ml of gamma butyrolactone = 8.8 gm marihuana''.

    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 19 [Option 1 (21 U.S.C. 860a): By striking ``(b)(8)'' 
each place it appears and inserting ``(b)(11)''] [[Option 2 (21 U.S.C. 
860a): By striking ``(b)(8)'' and inserting each place it 
appears''(b)(10)''].
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 20 [[Option 1 (21 U.S.C. 860a): By striking ``(b)(8)'' 
each place it appears and inserting ``(b)(11)''] [[Option 2 (21 U.S.C. 
860a): By striking ``(b)(8)'' each place it appears and inserting 
``(b)(10)''].
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 21 [[Option 1 (21 U.S.C. 860a): By striking ``(b)(9)'' 
each place it appears and inserting ``(b)(12)''] [[Option 2 (21 U.S.C. 
860a): by striking ``(b)(9)'' each place it appears and inserting 
``(b)(11)''].
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended by redesignating Notes 22 through 25 as Notes 23 through 26, 
respectively; and by inserting after Note 21 the following:
    ``22. Imposition of Consecutive Sentence for 21 U.S.C. 860a or 
865.--Sections 860a and 865 of title 21, United States Code, require 
the imposition of a mandatory consecutive term of imprisonment of not 
more than 20 years and 15 years, respectively. In order to comply with 
the relevant statute, the court should determine the appropriate 
``total punishment'' and divide the sentence on the judgment form 
between the sentence attributable to the underlying drug offense and 
the sentence attributable to 21 U.S.C. 860a or 865, specifying the 
number of months to be served consecutively for the conviction under 21 
U.S.C. 860a or 865. [For example, if the applicable adjusted guideline 
range is 151-188 months and the court determines a ``total punishment'' 
of 151 months is appropriate, a sentence of 130 months for the 
underlying offense plus 21 months for the conduct covered by 21 U.S.C. 
860a or 865 would achieve the `total punishment' in a manner that 
satisfies the statutory requirement of a consecutive sentence.''.]
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 23, as redesignated by this amendment, by striking 
``(5)'' each place it appears and inserting ``(6)''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 25, as redesignated by this amendment, by striking 
``(6)'' each place it appears and inserting ``(7)''.
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended in Note 26, as redesignated by this amendment, by striking 
``(7)'' each place it appears and inserting ``(8)''.
    [Option 2 (21 U.S.C. 841(g)):
    The Commentary to Sec.  2D1.1 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``27. Application of Subsection (b)(9).--For purposes of this 
subsection, `criminal sexual conduct' means an offense covered by 
Chapter Two, Part A, Subpart 3 (Criminal Sexual Abuse).''.]
    The Commentary to Sec.  2D1.1 captioned ``Background'' is amended 
in the ninth paragraph [[Option 1 (21 U.S.C. 860a): By striking 
``(b)(8)'' and inserting ``(b)(11)''] [[Option 2 (21 U.S.C. 860a): By 
striking ``(b)(8)'' and inserting ``(b)(10)'']; and in the last 
paragraph [[Option 1 (21 U.S.C. 860a): by striking ``(b)(8)'' and 
inserting ``(b)(11)''] [[Option 2 (21 U.S.C. 860a): By striking 
``(b)(8)'' and inserting ``(b)(10)''].
    Section 2D1.11(b) is amended by adding at the end the following 
subdivision:
    ``(5) If the defendant is convicted under 21 U.S.C. 865, increase 
by 2 levels.''.
    The Commentary to Sec.  2D1.11 captioned ``Statutory Provisions'' 
is amended by inserting ``865,'' after ``(f)(1),''.
    The Commentary to Sec.  2D1.11 captioned ``Application Notes'' is 
amended by adding at the end the following:
    ``8. Imposition of Consecutive Sentence for 21 U.S.C. 865.--Section 
865 of title 21, United States Code, requires the imposition of a 
mandatory consecutive term of imprisonment of not more than 15 years. 
In order to comply with the relevant statute, the court should 
determine the appropriate `total punishment' and, on the judgment form, 
divide the sentence between the sentence attributable to the underlying 
drug offense and the sentence attributable to 21 U.S.C. 865, specifying 
the number of months to be served consecutively for the conviction 
under 21 U.S.C. 865. [For example, if the applicable adjusted guideline 
range is 151-188 months and the court determines a `total punishment' 
of 151 months is appropriate, a sentence of 130 months for the 
underlying offense plus 21 months for the conduct covered by 21 U.S.C. 
865 would achieve the `total punishment' in a manner that satisfies the 
statutory requirement of a consecutive sentence.''.]
    Appendix A (Statutory Index) is amended by inserting after the line 
referenced to 21 U.S.C. 841(f)(1) the following:


[[Page 4392]]


``21 U.S.C. Sec.  841(g)--2D1.1'';
by inserting after the line referenced to 21 U.S.C. Sec.  860 the 
following:
``21 U.S.C. Sec.  860a--2D1.1'';
and by inserting after the line referenced to 21 U.S.C. Sec.  864 the 
following:
``21 U.S.C. Sec.  865--2D1.1, 2D1.11''.

    Issues for Comment:
    1. Section 201 of the Adam Walsh Child Protection and Safety Act of 
2006, Pub. L. 109-248, created a new offense in 21 U.S.C. 841(g) for 
``knowingly using the Internet to distribute a date rape drug to any 
person, knowing or with reasonable cause to believe that (A) the drug 
would be used in the commission of criminal sexual conduct; or (B) the 
person is not an authorized purchaser.'' The Commission requests 
comment regarding this offense, particularly with respect to the 
criminal sexual conduct aspect. The proposed amendment presents two 
options. Option One would provide a [two-][four-]level increase if the 
defendant was convicted under 21 U.S.C. 841(g), regardless of what the 
defendant knew or had reasonable cause to believe. Option Two would 
provide a four-level increase if the defendant was convicted under 21 
U.S.C. 841(g) and the defendant knew or had reason to believe the drug 
would be used in the commission of criminal sexual conduct. Option 
Three would provide a six level increase with a floor of 29 if the 
defendant knew the drug would be used in the commission of criminal 
sexual conduct, and a three level increase with a floor of 26 if the 
defendant had reasonable cause to believe that the drug would be used 
to commit criminal sexual conduct. Where the defendant sold the drug 
using the internet to an unauthorized purchaser, add two levels. Is 
there an alternative approach that the Commission should consider with 
respect to the criminal sexual abuse aspect of the offense? For 
example, should the Commission provide a cross reference to the 
criminal sexual abuse guidelines (Sec. Sec.  2A3.1-2A3.4) for 
defendants convicted under 21 U.S.C. 841(g)(A) even though it is not 
the defendant who committed the criminal sexual conduct?
    The Commission also requests comment regarding whether any 
enhancement for a conviction under 21 U.S.C. 841(g) also should provide 
a minimum offense level. If so, what offense level would be 
appropriate?
    2. Section 860a of title 21, United States Code, prohibits 
manufacturing or distributing, or possessing with the intent to 
manufacture or distribute, methamphetamine on a premises in which an 
individual under the age of 18 years is present or resides. Two options 
are presented. The first option uses the existing Sec.  2D1.1(b)(8)(C) 
in cases where the government proves that manufacturing methamphetamine 
poses a substantial risk of harm to the minor (add 6 levels with a 
floor of 30), and in all other cases (i.e. distribution and possession 
with intent to distribute), add two levels. The second option presumes 
that manufacturing methamphetamine on premises where a minor resides or 
was present poses a risk of harm and thus calls for adding six levels 
with a floor of 29. In distribution or possession with intent to 
distribute cases, option two would add three levels with a floor of 15. 
The Commission requests comment on which option is preferable, or 
whether there is an alternative approach that should be considered. If 
Option One's approach were to be adopted, the Commission requests 
comment regarding whether the substantial risk of harm enhancement 
(currently in Sec.  2D1.1(b)(8)(C) but proposed to be redesignated as 
Sec.  2D1.1(b)(11)(C)) should be expanded to include distribution of 
methamphetamine such that distribution offenses that create a 
substantial risk of harm to the life of a minor or incompetent also 
would be subject to the six-level enhancement and the minimum offense 
level of 30. Similarly, should it be expanded to include possession 
with intent to distribute or manufacture? If so, what would constitute 
a substantial risk of harm to the life of a minor or incompetent in a 
case involving methamphetamine distribution or possession with intent 
to distribute or manufacture methamphetamine? With regard to Option 
Two, the Commission requests comment on whether the six level increase 
with a floor of 29, and the three level increase with a floor of 15, in 
manufacturing and distribution cases, respectively, is appropriate, or 
whether other levels would be more appropriate for the offense.
    Both options presented in the proposed amendment are statute of 
conviction based. As an alternative to a statute of conviction based 
enhancement, the Commission requests comment regarding whether any 
enhancement that implements 21 U.S.C. 860a should be relevant conduct 
based. Additionally, rather than limit an enhancement to the 
manufacture and/or distribution of methamphetamine where a minor 
resides or is present, should the Commission expand any enhancement to 
all drugs. Finally, should the Commission expand the enhancement to 
apply when this conduct occurs where an incompetent resides or is 
present?
    3. The USA PATRIOT Improvement and Reauthorization Act of 2005, 
Pub. L. 109-177, established a new offense at 21 U.S.C. 865 that 
provides a mandatory consecutive sentence of not more than 15 years' 
imprisonment for any drug offense involving the smuggling of 
methamphetamine or methamphetamine precursor chemical while using a 
dedicated commuter lane, an alternative or accelerated inspection 
system, or other facilitated entry program for entry into the United 
States. The proposed amendment provides a two-level enhancement in 
Sec. Sec.  2D1.1(b)(5) and 2D1.11(b)(5) if the defendant is convicted 
in 21 U.S.C. 865.
    The Commission requests comment regarding this proposed 
enhancement. Specifically, the Commission requests comment on the 
following:
    (a) Should this enhancement be greater than two levels and, if so, 
what would be appropriate? Additionally, should there be a minimum 
offense level and, if so, what offense level would be appropriate?
    (b) Should the Commission provide an enhancement in Sec. Sec.  
2D1.1 and 2D1.11. that applies if the offense involved the use of a 
facilitated entry program to import drugs, regardless of the type of 
drug the defendant is convicted of importing, or conspiring to import, 
under 21 U.S.C. 960 or 963, respectively?
    (c) Should the Commission amend Sec.  3B1.3 (Abuse of Position of 
Trust or Use of Special Skill), Application Note 2, to include offenses 
that involve use of a facilitated entry program into the United States 
among cases that receive the Sec.  3B1.3 adjustment? If so, should the 
Commission provide a special instruction in Sec. Sec.  2D1.1 and 2D1.11 
that Sec.  3B1.3 applies if the defendant is convicted of an offense 
under 21 U.S.C. 865?

8. Immigration

    Synopsis of Proposed Amendment: In April 2006, the Commission 
promulgated a number of amendments to the immigration guidelines, 
primarily focusing on smuggling offenses. These amendments became 
effective November 1, 2006. This proposed amendment addresses the 
number of aliens involved in an offense, the number of documents 
involved in an offense, and options for modifying to Sec.  2L1.2 
(Unlawfully Entering or Remaining in the United States). Two issues for 
comment follow the proposed amendment. The first requests input 
regarding base offense levels in Sec. Sec.  2L1.1 (Smuggling, 
Transporting, or Harboring

[[Page 4393]]

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 second issue requests comment regarding Lopez v. 
Gonzalez, 127 S.Ct. 625 (Dec. 5, 2006).
Number of Aliens and Number of Documents
    The proposed amendment provides two options for amending Sec.  
2L1.1(b)(2) and 2L2.1(b)(2) regarding the number of aliens and number 
of documents, respectively, 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.
Sec.  2L1.2 (Unlawfully Entering or Remaining in the United States)
    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 six options to address the 
complexity of this guideline.
    The first, second, and third options amend the structure of Sec.  
2L1.2 by using the statutory 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 eight-
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 was at least 60 days but did not exceed 13 months; and 
an eight-level increase for all other aggravated felonies.
    For Options One through Three, the proposed amendment also 
eliminates the categories of crimes of violence and drug trafficking 
offenses from Sec.  2L1.2(b)(1)(E) (three or more misdemeanor 
offenses).
    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.
    The proposed amendment also provides for an upward departure in any 
case in which reliable information indicates that the elements of the 
offense set forth in the prior conviction under-represent the 
seriousness of that prior offense. This note is modeled after Sec.  
4A1.3 and could be used in conjunction with any of Options One through 
Four.
    The fifth option provides an increased base offense level and a 
reduction if the prior conviction is not a felony.
    The sixth option provides a 20-level increase for prior convictions 
for a national security or terrorism offense and creates further 
distinctions among type of conviction and length of prior sentence in 
relation to enhancements based on specific offense characteristics.

Proposed Amendment

    [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 3 by striking ``100'' and inserting ``300''.
    Section 2L2.1(b)(2) is amended by striking subdivision (C) and 
inserting the following:
    [Option 1:

``(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 the''; and by striking ``100'' and inserting ``300''.
    Section 2L1.2 is amended by striking the guideline and accompanying 
commentary and inserting the following:
    [Option 1:
``Sec.  2L1.2. Unlawfully Entering or Remaining in the United States
    (a) Base Offense Level: 8
    (b) Specific Offense Characteristic
    (1) Apply the Greatest:
    If the defendant previously was deported, or unlawfully remained in 
the United States, after--
    (A) A conviction for an aggravated felony for which a sentence of 
imprisonment exceeding 13 months was imposed, increase by 16 levels;

[[Page 4394]]

    (B) A conviction for an aggravated felony for which a sentence of 
imprisonment of 13 months or less was imposed, increase by 12 levels;
    (C) A conviction for an aggravated felony not covered by 
subdivision (b)(1)(A) or (b)(1)(B), increase by 8 levels;
    (D) A conviction for any other felony, increase by 4 levels; or
    (E) Three or more convictions for misdemeanors, increase by 4 
levels.
Commentary
    Statutory Provisions: 8 U.S.C. 1325(a) (second or subsequent 
offense only), 8 U.S.C. 1326. For additional statutory provision(s), 
see Appendix A (Statutory Index).
    Application Notes:
    1. Application of Subsection (b)(1).--
    (A) In General.--For purposes of subsection (b)(1):
    (i) A defendant shall be considered to be deported after a 
conviction if the defendant has been removed or has departed the United 
States while an order of exclusion, deportation, or removal was 
outstanding.
    (ii) A defendant shall be considered to be deported after a 
conviction if the deportation was subsequent to the conviction, 
regardless of whether the deportation was in response to the 
conviction.
    (iii) A defendant shall be considered to have unlawfully remained 
in the United States if the defendant remained in the United States 
following a removal order issued after a conviction, regardless of 
whether the removal order was in response to the conviction.
    (iv) Subsection (b)(1) does not apply to a conviction for an 
offense committed before the defendant was eighteen years of age unless 
such conviction is classified as an adult conviction under the laws of 
the jurisdiction in which the defendant was convicted.
    (B) Definitions.--For purposes of subsection (b)(1):
    (i) `Aggravated felony' has the meaning given that term in section 
101(a)(43) of the Immigration and Nationality Act (8 U.S.C. Sec.  
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.
    2. Application of Subsection (b)(1)(E).--For purposes of subsection 
(b)(1)(E):
    (A) `Misdemeanor' means any federal, state, or local offense 
punishable by a term of imprisonment of one year or less.
    (B) `Three or more convictions' means at least three convictions 
for offenses that are not considered `related cases', as that term is 
defined in Application Note 3 of Sec.  4A1.2 (Definitions and 
Instructions for Computing Criminal History).
    3. Aiding and Abetting, Conspiracies, and Attempts.--Prior 
convictions of offenses counted under subsection (b)(1) include the 
offenses of aiding and abetting, conspiring, and attempting, to commit 
such offenses.
    4. Computation of Criminal History Points.--A conviction taken into 
account under subsection (b)(1) is not excluded from consideration of 
whether that conviction receives criminal history points pursuant to 
Chapter Four, Part A (Criminal History).
    [5. Upward Departure Provision.--If reliable information indicates 
that the elements of the offense set forth in the prior conviction 
under-represent the seriousness of that prior offense, an upward 
departure may be warranted.]''.]
    [Option 2:
``Sec.  2L1.2. Unlawfully Entering or Remaining in the United States
    (a) Base Offense Level: 8
    (b) Specific Offense Characteristic
    (1) Apply the Greatest:
    If the defendant previously was deported, or unlawfully remained in 
the United States, after--
    (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;
    (C) A conviction for an aggravated felony, not covered in (b)(1)(A) 
or (b)(1)(B), increase by 8 levels;
    (D) A conviction for any other felony, increase by 4 levels; or
    (E) Three or more convictions for misdemeanors, increase by 4 
levels.
Commentary
    Statutory Provisions: 8 U.S.C. 1325(a) (second or subsequent 
offense only), 8 U.S.C. Sec.  1326. For additional statutory 
provision(s), see Appendix A (Statutory Index).
    Application Notes:
    1. Application of Subsection (b)(1).--
    (A) In General.--For purposes of subsection (b)(1):
    (i) A defendant shall be considered to be deported after a 
conviction if the defendant has been removed or has departed the United 
States while an order of exclusion, deportation, or removal was 
outstanding.
    (ii) A defendant shall be considered to be deported after a 
conviction if the deportation was subsequent to the conviction, 
regardless of whether the deportation was in response to the 
conviction.
    (iii) A defendant shall be considered to have unlawfully remained 
in the United States if the defendant remained in the United States 
following a removal order issued after a conviction, regardless of 
whether the removal order was in response to the conviction.
    (iv) Subsection (b)(1) does not apply to a conviction for an 
offense committed before the defendant was eighteen years of age unless 
such conviction is classified as an adult conviction under the laws of 
the jurisdiction in which the defendant was convicted.
    (B) Definitions.--For purposes of subsection (b)(1):
    (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.
    2. Application of Subsection (b)(1)(E).--For purposes of subsection 
(b)(1)(E):
    (A) `Misdemeanor' means any federal, state, or local offense 
punishable by a term of imprisonment of one year or less.
    (B) `Three or more convictions' means at least three convictions 
for offenses that are not considered `related cases',

[[Page 4395]]

as that term is defined in Application Note 3 of Sec.  4A1.2 
(Definitions and Instructions for Computing Criminal History).
    3. Aiding and Abetting, Conspiracies, and Attempts.--Prior 
convictions of offenses counted under subsection (b)(1) include the 
offenses of aiding and abetting, conspiring, and attempting, to commit 
such offenses.
    4. Computation of Criminal History Points.--A conviction taken into 
account under subsection (b)(1) is not excluded from consideration of 
whether that conviction receives criminal history points pursuant to 
Chapter Four, Part A (Criminal History).
    [5. Upward Departure Provision.--If reliable information indicates 
that the elements of the offense set forth in the prior conviction 
under-represent the seriousness of that prior offense, an upward 
departure may be warranted.''].]
    [Option 3:
    ``Sec.  2L1.2. Unlawfully Entering or Remaining in the United 
States
    (a) Base Offense Level: 8
    (b) Specific Offense Characteristic
    (1) Apply the Greatest:
    If the defendant previously was deported, or unlawfully remained in 
the United States, after--
    (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;
    (C) A conviction for an aggravated felony not covered in (b)(1)(A) 
or (b)(1)(B), increase by 8 levels;
    (D) A conviction for any other felony, increase by 4 levels; or
    (E) Three or more convictions for misdemeanors, increase by 4 
levels.
Commentary
    Statutory Provisions: 8 U.S.C. 1325(a) (second or subsequent 
offense only), 8 U.S.C. Sec.  1326. For additional statutory 
provision(s), see Appendix A (Statutory Index).
    Application Notes:
    1. Application of Subsection (b)(1).--
    (A) In General.--For purposes of subsection (b)(1):
    (i) A defendant shall be considered to be deported after a 
conviction if the defendant has been removed or has departed the United 
States while an order of exclusion, deportation, or removal was 
outstanding.
    (ii) A defendant shall be considered to be deported after a 
conviction if the deportation was subsequent to the conviction, 
regardless of whether the deportation was in response to the 
conviction.
    (iii) A defendant shall be considered to have unlawfully remained 
in the United States if the defendant remained in the United States 
following a removal order issued after a conviction, regardless of 
whether the removal order was in response to the conviction.
    (iv) Subsection (b)(1) does not apply to a conviction for an 
offense committed before the defendant was eighteen years of age unless 
such conviction is classified as an adult conviction under the laws of 
the jurisdiction in which the defendant was convicted.
    (B) Definitions.--For purposes of subsection (b)(1):
    (i) `Aggravated felony' has the meaning given that term in section 
101(a)(43) of the Immigration and Nationality Act (8 U.S.C. Sec.  
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.
    2. Application of Subsection (b)(1)(E).--For purposes of subsection 
(b)(1)(E):
    (A) `Misdemeanor' means any federal, state, or local offense 
punishable by a term of imprisonment of one year or less.
    (B) `Three or more convictions' means at least three convictions 
for offenses that are not considered `related cases', as that term is 
defined in Application Note 3 of Sec.  4A1.2 (Definitions and 
Instructions for Computing Criminal History).
    3. Aiding and Abetting, Conspiracies, and Attempts.--Prior 
convictions of offenses counted under subsection (b)(1) include the 
offenses of aiding and abetting, conspiring, and attempting, to commit 
such offenses.
    4. Computation of Criminal History Points.--A conviction taken into 
account under subsection (b)(1) is not excluded from consideration of 
whether that conviction receives criminal history points pursuant to 
Chapter Four, Part A (Criminal History).
    [5. Upward Departure Provision.--If reliable information indicates 
that the elements of the offense set forth in the prior conviction 
under-represent the seriousness of that prior offense, an upward 
departure may be warranted.''].
    [Option 4:
``Sec.  2L1.2. Unlawfully Entering or Remaining in the United States
    (a) Base Offense Level: 8
    (b) Specific Offense Characteristic
    (1) Apply the Greatest:
    If the defendant previously was deported, or unlawfully remained in 
the United States, after--
    (A) a conviction for an aggravated felony that is (i) a drug 
trafficking offense for which the sentence imposed exceeded 13 months; 
(ii) a crime of violence for which the sentence imposed exceeded 13 
months; (iii) a firearms offense; (iv) a child pornography offense; (v) 
a national security or terrorism offense; (vi) a human trafficking 
offense; or (vii) an alien smuggling offense, increase by 16 levels;
    (B) A conviction for an aggravated felony that is a (i) drug 
trafficking offense for which the sentence imposed was 13 months or 
less; or (ii) crime of violence for which the sentence imposed was 13 
months or less, increase by 12 levels;
    (C) A conviction for an aggravated felony not covered by 
subdivisions (b)(1)(A) or (b)(1)(B), increase by 8 levels;
    (D) A conviction for any other felony, increase by 4 levels; or
    (E) Three or more convictions for misdemeanors that are crimes of 
violence or drug trafficking offenses, increase by 4 levels.
Commentary
    Statutory Provisions: 8 U.S.C. Sec.  1325(a) (second or subsequent 
offense only), 8 U.S.C. Sec.  1326. For additional statutory 
provision(s), see Appendix A (Statutory Index).
    Application Notes:
    1. Application of Subsection (b)(1).--
    (A) In General.--For purposes of subsection (b)(1):
    (i) A defendant shall be considered to be deported after a 
conviction if the defendant has been removed or has departed the United 
States while an order of exclusion, deportation, or removal was 
outstanding.
    (ii) A defendant shall be considered to be deported after a 
conviction if the deportation was subsequent to the conviction, 
regardless of whether the deportation was in response to the 
conviction.
    (iii) A defendant shall be considered to have unlawfully remained 
in the

[[Page 4396]]

United States if the defendant remained in the United States following 
a removal order issued after a conviction, regardless of whether the 
removal order was in response to the conviction.
    (iv) Subsection (b)(1) does not apply to a conviction for an 
offense committed before the defendant was eighteen years of age unless 
such conviction is classified as an adult conviction under the laws of 
the jurisdiction in which the defendant was convicted.
    (B) Definitions.--For purposes of subsection (b)(1):
    (i) `Alien smuggling offense' has the meaning given that term in 
section 101(a)(43)(N) of the Immigration and Nationality Act (8 U.S.C. 
1101(a)(43)(N)).
    (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. Sec.  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).
    (vii) `Sentence imposed' has the meaning given the term `sentence 
of imprisonment' 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.
    (viii) `National security or terrorism offense' is an offense 
described in 8 U.S.C. 1101(a)(43)(L).
    2. Definition of `Felony'.--For purposes of subsection (b)(1)(A), 
(B), and (D), `felony' means any federal, state, or local offense 
punishable by imprisonment for a term exceeding one year.
    3. Application of Subsection (b)(1)(C).--(A) Definitions.--For 
purposes of subsection (b)(1)(C), `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.
    (B) In General.--The offense level shall be increased under 
subsection (b)(1)(C) for any aggravated felony (as defined in 
subdivision (A)), with respect to which the offense level is not 
increased under subsections (b)(1)(A) or (B).
    4. Application of Subsection (b)(1)(E).--For purposes of subsection 
(b)(1)(E):
    (A) `Misdemeanor' means any federal, state, or local offense 
punishable by a term of imprisonment of one year or less.
    (B) `Three or more convictions' means at least three convictions 
for offenses that are not considered `related cases', as that term is 
defined in Application Note 3 of Sec.  4A1.2 (Definitions and 
Instructions for Computing Criminal History).
    5. Aiding and Abetting, Conspiracies, and Attempts.--Prior 
convictions of offenses counted under subsection (b)(1) include the 
offenses of aiding and abetting, conspiring, and attempting, to commit 
such offenses.
    6. Computation of Criminal History Points.--A conviction taken into 
account under subsection (b)(1) is not excluded from consideration of 
whether that conviction receives criminal history points pursuant to 
Chapter Four, Part A (Criminal History).
    [7. Upward Departure Provision.-If reliable information indicates 
that the elements of the offense set forth in the prior conviction 
under-represent the seriousness of that prior offense, an upward 
departure may be warranted.''.]]
    [Option 5:
``Sec.  2L1.2. Unlawfully Entering or Remaining in the United States
    (a) Base Offense Level:[16][20][24]
    (b) Specific Offense Characteristic
    [(1) If the defendant does not have a prior conviction for a 
felony, decrease by [8][6][4] levels.]
Commentary
    Statutory Provisions: 8 U.S.C. 1325(a) (second or subsequent 
offense only), 8 U.S.C. Sec.  1326. For additional statutory 
provision(s), see Appendix A.
    Application Notes:
    1. Definition of `Felony'.--For purposes of subsection (b)(1)(A), 
(B), and (D), `felony' means any federal, state, or local offense 
punishable by imprisonment for a term exceeding one year.
    2. Aiding and Abetting, Conspiracies, and Attempts.--Prior 
convictions of offenses counted under subsection (b)(1) include the 
offenses of aiding and abetting, conspiring, and attempting, to commit 
such offenses.''.]
    [Option 6:
``Sec.  2L1.2. Unlawfully Entering or Remaining in the United States
    (a) Base Offense Level: 8
    (b) Specific Offense Characteristic
    (1) Apply the Greatest:
    If the defendant previously was removed, deported, or unlawfully 
remained in the United States, after--
    (A) a prior conviction for a national security or terrorism 
offense, increase by 20 levels;
    (B) A prior conviction resulting in a sentence of imprisonment of 
at least 13 months, or a prior conviction for murder, rape, a child 
pornography offense or an offense involving sexual abuse of a child, or 
three prior convictions resulting in sentences of imprisonment of at 
least 60 days, increase by 16 levels;
    (C) A prior conviction resulting in a sentence of imprisonment of 
at least 6 months, or two prior convictions resulting in sentences of 
imprisonment of at least 60 days, increase by 12 levels;
    (D) A prior conviction resulting in a sentence of imprisonment of 
at least 60 days, increase by 8 levels;
    (E) A prior conviction resulting in a sentence of imprisonment or a 
conviction for any other felony, increase by 4 levels.
Commentary
    Statutory Provisions: 8 U.S.C. 1325(a) (second or subsequent 
offense only), 8 U.S.C. Sec.  1326. For additional statutory 
provision(s), see Appendix A (Statutory Index).
    Application Notes:
    1. Application of Subsection (b)(1).--
    (A) In General.-For purposes of subsection (b)(1):
    (i) A defendant shall be considered to be deported after a 
conviction if the defendant has been removed or has departed the United 
States while an order of exclusion, deportation, or removal was 
outstanding.
    (ii) A defendant shall be considered to be deported after a 
conviction if the deportation was subsequent to the conviction, 
regardless of whether the deportation was in response to the 
conviction.
    (iii) A defendant shall be considered to have unlawfully remained 
in the United States if the defendant remained in the United States 
following a removal order issued after a conviction, regardless of 
whether the removal order was in response to the conviction.
    (iv) Subsection (b)(1) does not apply to a conviction for an 
offense committed before the defendant was eighteen years of age unless 
such conviction is classified as an adult conviction under the laws of 
the jurisdiction in which the defendant was convicted.
    (B) Definitions.--For purposes of subsection (b)(1):
    (i)`Child pornography offense' means (I) an offense described in 18 
U.S.C.

[[Page 4397]]

Sec.  2251, Sec.  2251A, Sec.  2252, Sec.  2252A, or Sec.  2260; or 
(II) an offense under state or local law consisting of conduct that 
would have been an offense under any such section if the offense had 
occurred within the special maritime and territorial jurisdiction of 
the United States.
    (ii) `Offense involving sexual abuse of a child' means an offense 
where the victim is under 18 years of age and is any of the following: 
an offense described in 18 U.S.C. 2242, a forcible sex offense, 
statutory rape, or sexual abuse of a minor.
    (iii) `Sentence of imprisonment' has the meaning given 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.
    (iv) `National security offense' means an offense to which the 
Chapter 2M guidelines apply. `Terrorism offense' means any offense 
involving, or intending to promote, a `Federal crime of terrorism', as 
that term is defined in 18 U.S.C. 2332b(g)(5).
    2. Definition of `Felony'.--For purposes of subsection (b)(1)(E), 
`felony' means any federal, state, or local offense punishable by 
imprisonment for a term exceeding one year.
    3. Sentences of imprisonment are counted separately if they are for 
offenses that are not considered `related cases', as that term is 
defined in Application Note 3 of Sec.  4A1.2 (Definitions and 
Instructions for Computing Criminal History).
    4. Aiding and Abetting, Conspiracies, and Attempts.--Prior 
convictions of offenses counted under subsection (b)(1) include the 
offenses of aiding and abetting, conspiring, and attempting, to commit 
such offenses.
    5. Computation of Criminal History Points.--A conviction taken into 
account under subsection (b)(1) is not excluded from consideration of 
whether that conviction receives criminal history points pursuant to 
Chapter Four, Part A (Criminal History).''.] Issues for Comment:
    1. In April 2006, the Commission promulgated an amendment that 
increased the base offense level in Sec.  2L1.1 (Smuggling, 
Transporting, or Harboring an Unlawful Alien) for offenses related to 
national security. See USSG App C (amendment 692) (effective Nov. 1, 
2006). The Commission requests comment regarding whether it should 
increase the base offense levels in Sec.  2L1.1(a)(2) (providing level 
23 for previous conviction for an aggravated felony) and (a)(3) 
(providing level 12, otherwise). Should the Commission increase the 
base offense levels in Sec. 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 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)? If so, what offense levels would be appropriate for 
each relevant guideline?
    2. The Commission requests comment regarding the Supreme Court's 
decision in Lopez v. Gonzalez, 126 S.Ct. 625 (Dec. 5, 2006). In Lopez, 
the Supreme Court held that state drug convictions for conduct treated 
as a felony by the state, but as a misdemeanor under the federal 
Controlled Substances Act, do not constitute aggravated felonies under 
the Immigration and Nationality Act. Under federal criminal law, a 
conviction for an aggravated felony subjects an alien who unlawfully 
re-enters the United States to an enhanced statutory maximum penalty 
(see 8 U.S.C. 1326(b)(2)) and to an 8-level enhancement under the 
subsection (b)(1)(C) of Sec.  2L1.2. Section 2L1.2 defines ``aggravated 
felony'' as having the same meaning given that term in 8 U.S.C. 
1101(a)(43). Given that the guidelines reference the statutory 
definition of ``aggravated felony,'' the Commission requests comment 
regarding whether the guidelines should be amended, if at all, in light 
of Lopez v. Gonzalez?

9. Issue for Comment: Reductions In Sentence Based on BOP Motion 
(Compassionate Release)

    In April 2006, the Commission promulgated a new policy statement at 
Sec.  1B1.13 (Reduction in Term of Imprisonment as a Result of Motion 
by Director of Bureau of Prisons), which became effective November 1, 
2006. On May 15, 2006, the Commission published an issue for comment 
stating its intent to consider, in the 2006-2007 amendment cycle, 
developing further criteria and a list of specific examples of 
extraordinary and compelling reasons for sentence reduction pursuant to 
such statute. See 71 FR 28062. The Commission requested comment and 
specific suggestions for appropriate criteria and examples, as well as 
guidance regarding the extent of any such reduction and modifications 
to a term of supervised release.
    The Commission received comment pursuant to this request and hereby 
requests any additional comment regarding appropriate criteria and 
examples of extraordinary and compelling reasons. For example, should 
the Commission modify Sec.  1B1.13 to provide that a reduction in a 
term of imprisonment should be made only if the extraordinary and 
compelling reason warranting the reduction involves a circumstance or 
condition that (i) was unknown to the court at the time of sentencing; 
(ii) was known to or anticipated by the court at the time of sentencing 
but that has changed substantially since that time; or (iii) was 
prohibited from being taken into account by the court at the time of 
sentencing but is no longer prohibited because of a change in 
applicable law? With respect to examples of extraordinary and 
compelling reasons, should the fact that the defendant is suffering 
from a terminal illness be a sufficient basis for a reduction, or 
should a reduction be limited to situations in which the defendant's 
terminal illness reduces the defendant's life expectancy to less than 
12 months? Should examples of extraordinary and compelling reasons be 
limited to medical conditions, and if not, what other factors should 
provide a basis for a reduction under Sec.  1B1.13? Should the 
Commission provide for a combination approach, allowing the court to 
consider more than one reason, each of which alone is not extraordinary 
and compelling but that, taken together, make the rationale for a 
reduction extraordinary and compelling? Should Sec.  1B1.13 provide 
that the Bureau of Prisons may determine that, in any particular 
defendant's case, an extraordinary and compelling reason other than a 
reason identified by the Commission warrants a reduction?

10. Issues for Comment: Criminal History

    1. The Commission has identified as a policy priority for this 
amendment cycle the continuation of its policy work on Chapter Four 
(Criminal History and Criminal Livelihood), in part because criminal 
history is among the most frequently cited reasons for a below 
guideline range sentence. See 71 FR 56578 (Sept. 27, 2006). The 
Commission has begun examining ways to improve the operation of Chapter 
Four.
    As part of this process the Commission held two round-table 
discussions regarding criminal history

[[Page 4398]]

in Washington, DC, on November 1 and 3, 2006, to gather input from 
judges, academics, federal prosecutors, federal public defenders and 
other defense practitioners, probation officers, and other users of the 
federal sentencing guidelines. One topic of interest was the use of 
minor offenses (i.e., misdemeanor and petty offenses) in determining a 
defendant's criminal history score. Pursuant to Sec.  4A1.2(c), 
sentences for misdemeanors and petty offenses (``minor offenses'') are 
counted for criminal history purposes with a limited number of 
exceptions. Some minor offenses are counted only if the sentence was a 
term of probation of at least one year or a term of imprisonment of at 
least 30 days, or the prior offense was similar to the instant offense. 
Examples of offenses that fall within this exception include reckless 
driving, disorderly conduct, driving with a suspended license, 
gambling, prostitution, and resisting arrest. See Sec.  4A1.2(c)(1) for 
the full list of offenses in this category. Certain minor offenses such 
as hitchhiking, juvenile status offenses and truancy, loitering, minor 
traffic infractions (e.g., speeding), public intoxication, and vagrancy 
are never counted in criminal history. See Sec.  4A1.2(c)(2). 
Furthermore, several circuit courts have developed varying tests to 
determine if a conviction falls within the list of offenses provided in 
Sec.  4A1.2(c)(1) or (c)(2).
    The Commission requests comment regarding the use of minor offenses 
in determining a defendant's criminal history score. Specifically, how 
reflective of the defendant's culpability are minor offenses? Should 
the Commission consider specifically excluding other minor offenses 
from the criminal history determination and, if so, which offenses 
should be excluded? Conversely, should the Commission consider 
specifically including additional minor offenses for purposes of 
determining a defendant's criminal category? Should the Commission 
include any minor offense that has a term of probation of at least one 
year, or a term of imprisonment of at least 30 days, or if the prior 
offense was similar to the instant offense (as currently provided in 
Sec.  4A1.2(c)(1))?
    The Commission also requests comment regarding whether there is an 
alternate point value that the Commission should consider assigning to 
minor offenses, or whether there is an alternative way of counting 
minor offenses for criminal history purposes. For example, should the 
Commission consider providing criminal history points only after a 
defendant has multiple convictions for minor offenses? Should the 
Commission consider not assigning or assigning some alternative point 
value for recency and status points to minor offenses? (See Sec.  
4A1.1(d)-(e).) Alternatively, should minor offenses be used only for 
purposes of an upward departure under Sec.  4A1.3 (Departures Based on 
Inadequacy of Criminal History Category)?
    2. Another topic of interest among the round-table participants was 
the definition of ``related cases'' under Application Note 3 of Sec.  
4A1.2 (Definitions and Instructions for Computing Criminal History). 
Currently, prior sentences are considered related if there is not 
intervening arrest and they resulted from offenses that (A) occurred on 
the same occasion; (B) were part of a single common scheme or plan; or 
(C) were consolidated for trial or sentencing. Each of these criteria 
has been the subject of much litigation in the district and appellate 
courts, including a decision by the Supreme Court regarding the 
consolidation aspect of the definition. See Buford v. United States, 
532 U.S. 59 (2001). Furthermore, a number of appellate opinions have 
suggested that the Commission reexamine the application of the 
definition of related cases when sentences are not separated by an 
intervening arrest. The Commission requests comment regarding the 
definition of ``related cases.'' With respect to the instances 
described in subdivisions (A), (B), and (C), are there factors that 
would help the court determine whether a case is related to another 
case? For example, should the Commission provide a list of factors for 
the court to use in determining whether prior convictions are 
consolidated for sentencing? In general, is the current definition for 
related cases too restrictive and, if so, how should the definition be 
modified or expanded?

11. Issue for Comment: Implementation of the Telephone Records and 
Privacy Protection Act of 2006

    The Telephone Records and Privacy Protection Act of 2006, Pub. L. 
109-476, created a new offense in 18 U.S.C. 1039 pertaining to the 
fraudulent acquisition or disclosure of confidential telephone records. 
Section 4 of the Act requires the Commission to ``review and, if 
appropriate, amend the Federal sentencing guidelines and policy 
statements applicable to persons convicted of any offense under section 
1039 of title 18, United States Code.'' The Act requires the Commission 
to promulgate an amendment not later than 180 days after the enactment 
of the Act.
    The Commission requests comment regarding how best to implement 
this legislation, particularly in light of the mandatory consecutive 
penalties provided for certain forms of aggravated conduct, and keeping 
in mind the Commission's simplification efforts. For example, should 
the Commission reference this offense to Sec.  2H3.1 as it is proposed 
to be amended in the Miscellaneous Laws proposed amendment? That 
proposed amendment expands the heading of the guideline to include the 
unauthorized disclosure of any private information, which would include 
confidential telephone records. If it should be referenced to Sec.  
2H3.1, are there additional modifications (e.g. special offense 
characteristics) that should be made to that guideline to implement the 
new offense?

12. Issue for Comment: Cocaine Sentencing Policy

    The Commission identified as a policy priority for the current 
amendment cycle ending May 1, 2007, the ``continuation of its work with 
the congressional, executive, and judicial branches of the government 
and other interested parties on cocaine sentencing policy'', including 
updating the Commission's 2002 Report to Congress, Cocaine and Federal 
Sentencing Policy, which is available on the Commission's Web site at 
www.ussc.gov.
    In working to address this priority, the Commission currently is 
updating the information contained in its 2002 Report. As part of this 
process, the Commission gathered information at a public hearing it 
held on cocaine sentencing policy on November 14, 2006. At that 
hearing, the Commission received testimony from the executive and 
judicial branches of the federal government, State and local agencies, 
the defense bar, medical and drug treatment experts, academics, and 
community interest groups. Witnesses at that hearing expressed a 
variety of views about the nature and characteristics of cocaine 
offenses and offenders and suggested a number of proposals for 
addressing federal cocaine penalties. Testimony of the witnesses, as 
well as a transcript of the public hearing, can be found on the 
Commission's Web site.
    The Commission invites comment on any or all of the testimony 
received at the November 14, 2006, public hearing, including comment on 
any of the suggestions at that hearing or any other suggestions (such 
as possible changes in the Drug Quantity Table) for addressing federal 
cocaine penalties.

 [FR Doc. E7-1349 Filed 1-29-07; 8:45 am]
BILLING CODE 2211-01-P